State's power to determine which of its citizens may vote. By prescribing and administering voting qualifications, the States effectively determine who may vote in a national election. But this does not mean that the right is derived from the States. For the Supreme Court has ruled that the right to vote for Members of Congress is a right derived from and secured by the Constitution of the United States.R

The elective rights guaranteed by the Fourteenth Amendment afford protection only against deprivations by States, and those guaranteed by the Fifteenth Amendment only against deprivations by the United States and the States. The right to vote for Members of Congress, on the other hand, is secured against the actions of individuals as well as States."

Controversy over the extent to which the power of the United States can be employed to protect the integrity of national elections has arisen on several occasions. Efforts to exercise the Federal power have proceeded predominantly under criminal statutes against conspiracies.

The fact that State officers are elected at the same time and place as national officers does not annul the powers of Congress to protect the integrity of the election as it affects national officers."

In 1894, Congress repealed major substantive portions of election laws that had been passed in the Reconstruction years of 1870-72 and had made interference with national elections an offense against the United States.10 But it did not repeal the enforcement provision."

Ex parte Yarbrough, 110 U.S. 651 (1884). U.S. v. Classic, 313 U.S. 299 (1941). On the premise that the right to vote for members of Congress has its foundation in the U.S. Constitution, the Supreme Court has determined two principles: (1) When an individual brought action to recover damages because an election board in South Carolina had rejected his vote in a congressional election (Wiley v. Sinkler, 179 U.S. 58 (1900)), it was decided that a procedural statute authorizing direct appeal to the Supreme Court was lawful, because obstruction or application of the U.S. Constitution had been involved. (2) When a natural-born white citizen in Tennessee brough action for damages because he had not been permitted to vote for his Congressman, it was decided that this was a Federal question and should not have been dismissed by a trial court for lack of jurisdiction (Swafford v. Templeton, 185 U.S. 487 (1902)).

U.S. v. Classic, 313 U.S. 299 (1941). This can afford a greater area of protection to participation in elections for Members of Congress than is secured through the Fourteenth and Fifteenth Amendments.

8 The general conspiracy statute, 18 U.S.C. 371, relates to conspiracies to commit offenses against the United States or to defraud the United States. The civil rights conspiracy statute, 18 U.S.C. 241, is calculated to protect a citizen in the free exercise or enjoyment of rights secured by the United States Constitution or laws. The latter conspiracy law will be discussed later in detail. However, it should be noted that to prove conspiracy in a ballot-stuffing charge, for instance, it would not be enough simply to state that the action had affected the election of national officials. The indictment would have to be drawn to indicate that the stuffing of the ballot box had deprived certain citizens of the enjoyment of their rights under the Constitution to vote for the election of national officials.

In the Yarbrough case, supra, pp. 661-2, the Supreme Court noted that "it is only because the Congress of the United States through long habit and years of forbearance has, in deference and respect to the States, refrained from the exercise of these powers, that they are now doubted."

10 These statutes are discussed more specifically under the section dealing with art. 1, sec. 4.

11 18 U.S.C. 241, which is still effective.

Subsequently, a number of cases arose dealing with protection of the integrity of national elections. The Supreme Court held that

(1) the failure of an election board to include the vote of 11 precincts for congressional candidates was unlawful because the right to vote includes the right to have the vote counted honestly and fairly;

12

(2) a conspiracy to bribe voters at an election for national officers was not an interference with rights guaranteed by article I, section 2, to other qualified voters.13

(3) it was unlawful for election officials to conspire to stuff a ballot box at which a U.S. Senator was being chosen.1

Nowhere has article I, section 2, been more useful than in connection with problems of discrimination in primary elections. One of these problems was the so-called white primary, which for years in the South had been effectively employed as a method of depriving Negroes of an opportunity to vote.

Concerning the beginning and the historical evolution of the "white primary" as a device for curbing Negro suffrage, we are privileged to draw from George W. Spicer's comprehensive article, "The Supreme Court and Racial Discrimination.” 15 Its use as a means for systematically excluding the Negro from the polls in the one-party South resulted from the fact that anyone barred from the primary was effectively disfranchised. The general election merely formalized and legalized the choices made in the Democratic primary.

Inspiration for the first legislative prescription of the "white primary" apparently came from the inconclusive decision of the Supreme Court in Newberry v. United States.16 The Court declared that a

"United States v. Mosley, 238 U.S. 383 (1915). It was argued in this case that what is now 18 U.S.C. 241 was not intended to embrace interference with voting. The reasoning back of this was that section 4 of the act of May 31, 1870, specifically punishing interference with voting at an election was repealed in 1894. Therefore, it was contended that sec. 6 of the same act, which was directed against acts of violence, was not applicable to interference with voting. But such arguments were rejected and the Court noted that sec. 6 through various reenactments was not limited to acts of violence, but dealt with all Federal rights in more general terms.

"See United States v. Gradwell, 243 U.S. 476 (1917). In United States v. Bathgate, 246 U.S. 220 (1918), the Supreme Court held that the civil rights conspiracy statute 18 U.S.C. 241, did not embrace conspiracy to bribe voters in an election at which a U.S. Representative, a Senator, and presidential electors were chosen. Bribery was considered to be an offense only under the statutory provisions which had been repealed in 1894. Bribery of voters should be distinguished from attempts to bribe officials of the United States, which offenses are treated specifically in criminal statutes other than those employed in protecting national elections.

14 United States v. Saylor, 322 U.S. 385 (1944). The import of the Saylor decision must be that, although the 1894 repeal ended direct control and supervision, it did not remove the authority to punish frauds affecting national elections when they are disclosed.

1511 Vand. L. Rev., 823–31 (1958). The reader is also referred to George W. Spicer's The Supreme Court and Fundamental Freedoms, copyright Appleton-Century-Croft, 1959. The rise and demise of this technique is one of the most significant developments of federalism in the entire area of civil rights conflict. While considered under this section dealing with art. 1, sec. 2, the problem might as accurately have been treated under art. 1, sec. 4.

18 256 U.S. 232 (1921).

primary is no part of an election, and hence that the part of the Federal Corrupt Practices Act intended to limit the expenditures of a senatorial candidate in a primary was unconstitutional.

17

Soon after this decision, the Texas Legislature enacted a law barring Negroes from the polls in any Democratic primary in the State. This law was invalidated by the Supreme Court in Nixon v. Herndon " as a violation of the equal protection of the laws. The attempt to vest the same power of discrimination in the State executive committee of the party failed because the committee received its authority to act from the legislature and hence was an agent of the State.18

But in Grovey v. Townsend,19 in 1935, the Court upheld the exclusion of a Negro voter from the Democratic primary under a resolution of the State Democratic convention. Here the Court declared that to deny a vote in a primary was a mere refusal of party membership in a private organization, with which "the State need have no concern." The action by the State Democratic convention was considered not to be State action.

The great turning point came in 1941 in the Classic case.20 Here the Court held that section 4 of article I of the Constitution authorizes Congress to regulate primaries as well as general elections where the primary is by law an integral part of the procedure of choice [of a representative in Congress], or where in fact the primary effectively controls the choice. That qualified citizens and inhabitants of a State have a constitutional right to choose Congressmen was underscored by the Court in the following language:

Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a State to cast their ballots and have them counted at congressional elections. *** And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of States.

Where the State law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by article I, section 2. And this right of participation is protected just as is the right to vote at the election. ✶ ✶ ✶21

Then in 1944 in Smith v. Allwright,22 the "white primary" was outlawed as violative of the Fifteenth Amendment. The Court declared that the constitutional right to be free from racial discrimination in

17 273 U.S. 536 (1927).

18 Nixon v. Condon, 286 U.S. 73 (1932).

19 295 U.S. 45 (1935).

20 United States v. Classic, 313 U.S. 299, 318 (1941).

21 313 U.S. 299, 314, 315, 318 (1941).

23 321 U.S. 649, 664, 661 (1944).

***

voting "is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election." Declaring that "it may now be taken as a postulate that the right to vote in *** a primary without discrimination by the State *** is a right secured by the Constitution," the Court went on to hold that, since by State law the primary was made an integral part of the State election machinery, the action of the party in excluding Negroes was action by the State and consequently in violation of the Fifteenth Amendment. Thus the controlling issue here as in the Grovey case was whether the Negro had been barred from the primary by State action. The Court held that he had, and consequently Grovey v. Townsend was overruled.

Although this decision greatly stimulated Negro participation in Southern primaries,23 the resistance to it in most of the affected States was prompt and determined. South Carolina and Alabama led the way.24

South Carolina promptly repealed all statutory 25 and constitutional 26 laws relating to primaries, and the Democratic primary was thereafter conducted under rules prescribed by the Democratic Party. This bold attempt to circumvent the Allwright decision was struck down by the United States district court in Elmore v. Rice."

Elmore had been denied the right to vote in the Democratic primary under rules promulgated by the Democratic convention, which limited the right to vote in the primary to white persons. Both the district court and the court of appeals ruled that the party and the primary were still used as instruments of the State in the electoral process, despite the repeal of all laws relating to primaries.28

Note that the primary involved in the Allwright case had been conducted under the provisions of State law, not merely under party rules as in this case. Here the State had permitted the party to discriminate against the Negro voter in violation of the Constitution. The court of appeals put the question before it sharply in this way:

The question presented for our decision is whether, by permitting a party to take over a part of its election machinery, a State can avoid the provisions of the Constitution forbidding racial discrimination in elections and can deny to a part of the electorate, because of race and color, any effective voice in the government of the State. It seems perfectly clear that the question must be answered in the negative."

"O. Douglas Weeks, "The White Primary; 1944-1948," 42 Am. Pol. Sci. Rev. 500 (1948). See also Donald S. Strong, "The Rise of Negro Voting in Texas," 42 Am. Pol. Sci. Rev. 510 (1948).

For efforts in other Southern States, see Weeks, supra note 23.

S.C. Acts, 1944, 2323.

* S.C. Const. art. 2, sec. 10.

* 72 F. Supp. 516 (E.D.S.C. 1947); 165 F. 2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948).

* Rice v. Elmore, 165 F. 2d 387, 388 (4th Cir. 1947).

Id. at 387-89.

Hence, "no election machinery can be upheld if its purpose or effect is to deny to the Negro on account of his race or color, any effective voice in the government of his country or the State or community wherein he lives.30

Still unyielding, the Democratic Party authorities of South Carolina sought to evade the Elmore decision by vesting control of primaries in clubs from which Negroes were barred, and by requiring of one who desired to vote in the primaries an oath, which was particularly objectionable to Negroes, stipulating among other things that he believed in the social and educational separation of the races. This effort failed in both the district court 31 and the court of appeals $2 on the strength of the principle enunciated in the Elmore case.

32

That principle was approved and applied by the Supreme Court of the United States in Terry v. Adams 33 in 1953. Here Fort Bend County, Tex., had for more than 50 years deprived Negroes of the ballot by setting up an "association" that included all white voters on the official list of the county and barred Negroes from membership. This organization, known as the Jaybird Democratic Association, claimed to be only a voluntary, private club with no connection whatever with the State political or elective machinery. Its ostensible duty was merely to pick candidates for recommendation to the regular party primary. Expenses were met by assessing the candidates, and no reports or certification of candidates were made to any State or party officials. Here Justice Black declared that the facts and findings brought the case squarely within the reasoning and holding of the Court of Appeals of the Fourth Circuit in the Elmore case, in which the principle had been laid down that no election machinery could be upheld if its purpose or effect was to deny Negroes on account of their race an effective voice in the governmental affairs of their country, State, or community.34 Indeed, as already pointed out, essentially the same principle had previously been enunciated in Smith v. Allwright when the Supreme Court said that the constitutional right to be free from racial discrimination in voting "is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election." 35

Thus, as George W. Spicer comments, "a State cannot escape the responsibility for unconstitutional discrimination by delegating

80 Id. at 392.

81 Brown v. Baskin, 78 F. Supp. 933 (E.D.S.C. 1948). "Baskin v. Brown, 174 F. 2d 391 (4th Cir. 1949).

345 U.S. 461 (1953).

34 Rice v. Elmore, 165 F. 2d 387, 392 (4th Cir. 1947). 35321 U.S. 664.