Decision: The Constitution in Action; 3; The Constitution and the Right to Vote

It began in the office of Dr. L. E. Smith in Houston, Texas. Then the story moved to the old county courthouse in Houston where absentee ballots were being distributed and finally it moved to the United States Supreme Court, Washington, D.C. And when the decision of that court was announced, this case of Smith versus all right became a chapter in the history of the United States Constitution, an interpretation affecting many people, a crucial decision. It was a day in July.

1940. I don't know. What pie? You like it? Very much. Now listen, when can you get back here? Can you get back your Friday? Yes. About two o'clock? Yes. Listen, I've got a very important, though. Me too, I've got to meet you at one o'clock, and you come back, and I've got to do that. Is that all right? OK, I'll be here. And you like your work, Lord?

I'm glad you're fine. This was a special day for Dr. Smith. For the entire afternoon, he had kept his calendar free. He had some plans. So shortly before one o'clock, he closed the office. The walk to the courthouse was not long. He took him through the middle of the city across Main Street. At the courthouse, according to arrangement,

he met the others. He couldn't be glad to have him. Should I help you? Should I help you? Should I help you? Should I help you? Should I help you, Nelson D. Brougher? Now, you know where I can't give you an absentee ballot. I know, I know. I'm supposed to. Here I am. I think the chief clerk's better help you. You vote in the regular election in November.

You just go to your regular polling place in November. That's the general election. But I want to vote in this, and I haven't voted it. We can't give you a ballot in the primary election. Why not? Well, if you want more information, I suggest that you go to the party at quarters of my administration. The party made this decision, you know. I don't want to go to this election for the Congresswoman who's going to vote in that motion. We can't give you a ballot in the primary election. Why not? Well, this is an all-white primary at Texas Democratic Party Primary. The party made this decision unanimously. The Supreme Court upheld it. I have nothing to do with it. I do as I'm told. And I still like to vote for Congressmen. I'm sorry, we can't do a thing for you. During the summer of 1940,

Dr. Smith made two efforts to vote in the primary. Then he filed suit in federal court. Named in the suit were party election officials. The charge was that they had deprived him of his rights under the Constitution. The suit was for $5,000 damages. The lawyers representing Dr. Smith began to prepare their case under the leadership of W.J. Durham of Dallas. Among his advisers were the Reverend A.A. Lucas and Carter Wesley. Wesley had reason to know the difficulties they faced. He had assisted in a similar case that now stood as a dangerous precedent. This particular case here has been decided by the Supreme Court. The case?

Grovy versus Townsend. This started in the 1930s. Richard Grovy had a barbershop in Houston, a barbershop and business office. Grovy was interested in public problems. He led drives for various neighborhood improvements like better paving. But in 1932, the primary was especially on his mind. That year, the Democratic State Convention passed its unanimous resolution. Others have you read this morning's post? No. What's in it? The resolution can be by the Democratic Convention by Negroes and participation in the Democratic primary. Read it. Let's see what's in it. It was all that all white citizens of the state of Texas who are qualified to vote shall be eligible for membership in the Democratic Party

and, as such, entitled to participate in its deliberation. Gentlemen, the dies gas. We must contest this resolution. We must take it to the Supreme Court of the United States. You're right. You're right. Well, we'll take to the court. But it's all tighted. All sorts of people agreed that it ought to be tested. So Richard Grovy decided to act. He began to collect money for legal expenses. At various churches and YMCA's, he made talks, took up collections. One church contributed $44. Another $52 emancipation park raised several hundred. Grovy turned the money over to a committee. Finally, with the help of many people, plans were ready. On a day in the summer of 1934, Richard Grovy took the same walk

that Dr. L. E. Smith was to take years later to the county courthouse, then up to the office of the county clerk. What would happen there was perhaps a foregone conclusion. Well, I went down this morning and offered for a right to vote. The county clerk refused to give me a ballot. I said that I was entitled to the right to vote. He said, well, if they were all like you, Grovy, I wouldn't mind it. I said to them, they're all like me. He refused me a ballot. So I said to them, will I file a suit? Take it to the Supreme Court of the United States. Grovy's lawyers filed suit in the Justice Court. They charged that Grovy had been deprived of his rights as a citizen.

The suit asked damages of $10. It was promptly dismissed. But the smallness of the damage claim had a purpose. Because of its smallness, it could not be reviewed in any other court in Texas. But since it involved a federal issue, his lawyers appealed directly to the United States Supreme Court and to their surprise, the court agreed to hear the case. Argument was scheduled for March 1935. In the following month, came the decision, a unanimous decision read by Justice Roberts. He said, the Democratic Party in Texas is a voluntary political association and has the power to determine who shall be eligible to participate in the party's primaries. The judgment is affirmed. For Richard Grovy, it was a bitter setback. And it raised problems for all who were pressing the issue of voting rights. For now, the Supreme Court had seemed to put the highest sanction on the all-white primary

and the all-white resolution of the State Democratic Convention. Here was a precedent that would be difficult to shake. Yet, they felt they must try. Much correspondence moved the state and many of the branches of the state are anxious to read money to fight this case. This time, there would be help on a wider scale. Behind this new case was the National Association for the Advancement of Colored People. Its directors in Dallas were guiding the planning in consultation with the National Office.

But how should the case be handled? What arguments could help to win it? What laws? What traditions? Unfortunately, the words written by our founding fathers in the Constitution gave little help. These men, meeting in a time of chaos, were intent on order and stability rather than popular rights. Some agreed with Elbridge Gurry of Massachusetts, who said, the evils we experience flow from the excess of democracy. So did Roger Sherman of Connecticut. He said, the people should have as little to do as may be about the government. Others felt differently. Benjamin Franklin said the common people had helped win the war of independence, and should be guaranteed the right to vote.

But this view in the debates in Philadelphia could not win the day. In the end, to avoid a deadlock, the founding fathers sidestepped the issue. Here is how they did it. The new nation was to have a president and a vice president. How would they be elected? Each state shall appoint in such manner as the legislature thereof made direct a number of electors. The state legislatures would decide the details. The new government would also have a senate. How would its members be chosen? Two senators from each state chosen by the legislature thereof. Again, the state legislatures would be in control. Later, the procedure was changed, but important details were still left to the states. The new government would also have a house of representatives.

How would they be chosen? Chosen every second year by the people of the several states. The people only here did the people receive a federal guarantee. Later also applied to the election of senators. But what people? The constitution laid down the rule. Whoever by state law could vote in state elections for the largest branch of the state legislature would also have the right to vote for federal representatives. Again, the state held the ultimate decision. And here is what it meant. In most states, only property owners could vote. So our nation began with government by the few. A fraction of the adult population, male, white property owners. But the young republics saw a rapid expansion of commerce and industry. Unproperted workers grew in importance and clamored for rights. And little by little, states dropped the property qualifications.

Now there was a new class of voters. Male, white, non-property owners. Presently came the Civil War. And afterward, some amendments to the constitution, including the 15th. State voting qualifications must no longer be based on race or color. Again, a new class of voters. However, some states adopted other qualifying devices to restrict the Negro vote. Meanwhile, there was agitation in another direction. The status of women was changing, and they were demanding rights. After World War I, there came a new amendment, the 19th. It added millions of voters, including some Negro.

Thus, a century of changes brought about through persuasion, legislation, amendment. But for some people, voting rights were still remote and seemed to grow more so. One reason was this. In some places, the Negro was allowed to vote in the November election. But not in the primary. In the election, yes. In the primary, no. In the election, a vote. In the primary, no vote. But in these same states, the issues were usually settled in the primary. So the struggle for the vote began to center on the primary and its exclusions. The right to make these exclusions was claimed on various grounds. A primary, it was said, was like a convention, a way of choosing candidates.

It was party business, not public business. Socialists would not want their candidates chosen by Republicans or Democrats. Prohibitionists would not want their candidates chosen by drinkers of alcohol. If women started a women's party, they would surely have the right to exclude men from party decisions. As to exclusions based on race, were they not equally reasonable in convention or primary? So ran the argument. But some said no and cited the 15th amendment to the Constitution. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. But some argued that this and all other election laws and amendments could not apply to the primaries.

When our forefathers in the Constitution or in the 15th amendment spoke of elections, they couldn't have meant primaries. They didn't have primaries. In several cases, this argument came to the Supreme Court for a ruling. One such case, Newbury versus the United States. The time, 1918. In Michigan, a tense battle in the primary. Henry Ford was running for United States Senator. So was Truman Newbury. Newbury was nominated and elected. But Ford said that Newbury had spent during the primary $100,000 on his campaign. Far more than was permitted under federal law, Newbury was tried and convicted. But to appeal his case, he engaged as counsel Charles Evans Hughes. Hughes said that federal law could not constitutionally regulate the primary. The case went to the Supreme Court. Its decision, five to four, upheld Newbury.

Justice McRennels, speaking for the court, said this. We cannot conclude that authority to control party primaries or conventions was bestowed on Congress. The framers of the Constitution did not ascribe to their words any such meaning. That was the law. The primary was beyond the reach of Congress. This was private business. Private in many ways, as Richard Grovy was to learn years later. When the Democratic Party in Texas, by resolution, excluded Negroes from its primary and Grovy challenged the action, the Supreme Court, now presided over by Chief Justice Charles Evans Hughes, ruled against him. It was a private party matter, said the court, not touched by the 15th Amendment. In 1940, when Dr. Ellie Smith asked for a ballot to vote in the primary, that interpretation still held. And that is why the clerk could say, with assurance,

Well, this is a all white primary. And we can't give you a ballot in it. I have nothing to do with this. The Supreme Court upheld it. The party made this United decision unanimously. And I have nothing to do with it. I do as I'm told. I still want to vote. And that is what made it so difficult for the lawyers preparing their brief. The position they were attacking was fortified, with law and precedent. But then something happened. Mr. Marshall is on the phone. Okay. I have nothing to do with it. Do you want to talk to him? Hello. This is Durham. We are here in a conference in connection with the primary case that I discussed with you the other day. We've got to play with you when you read the file. A new Supreme Court decision, perhaps of huge implications. On the phone, they discussed it with their good Marshall in New York.

The new case had nothing to do with race, yet Marshall, NAACP council, felt it might prove a turning point. The case, the United States versus classic and others. A federal prosecution of five election commissioners. It had started in New Orleans. In the congressional primary of 1940, there were charges of corruption in the handling of the ballots. In the second precinct, 11th Ward, the ballot boxes were seized for inspection by a federal grand jury. Inside, the grand jury found evidence of changes and erasures. According to the Constitution, Article 1, Section 2, representatives in Congress shall be chosen by the people. Had they been chosen by the people or by others? On the basis of irregularities, the grand jury indicted the five commissioners under a civil rights law of 1870. Their reply in the United States District Court was to file a demurror.

They said the primary was no concern of the federal government. The District Court agreed. Immediately, in Washington, Solicitor General Francis Biddle announced a government appeal to the United States Supreme Court. Once more, the court was asked to consider the status of the primary. On May 26, 1941, came the decision, five to three. Chief Justice Hughes did not take part. Justice Stone, for court, said this. 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 1, Section 2. Louisiana primary is by law an integral part of the procedure of choice. A decision had been made. The people's right to choose had had a new broadened interpretation.

It might, under some circumstances, include the primary. Would this apply in Texas? In Texas, the attorneys were suddenly very busy, replining their strategy. Carter, I think we ought to prepare a statement for each of the lawyers to study and brief, and order that we might orderly proceed with this matter. I think that's a couple of ideas. The next statement is the Texas primary election, an actual integral part of the general election in Texas. If so, why? Would you, gentlemen, a very fat question and send me your statement? What do you think? I think that's a good way to get that. Following year 1942, Smith versus all right came up in United States District Court in Houston. The court dismissed the suit. Its decision was upheld by the Circuit Court of Appeals. But the United States Supreme Court agreed to review. Oral argument was scheduled for the fall term, 1943, among those handing the case for Dr. Smith was their good marshal.

Finally, in April of 1944, came the decision, an eight-to-one decision read by Justice Reed. He said, Membership in a party may be, as this court said in Grovy versus Townsend, no concern of a state. But here, the state makes the action of the party the action of the state. When convinced of former error, this court has never felt constrained to follow President. In Texas, the Houston Chronicle announced the news. It was big news. My virtue looked wonderful this morning, Dr. Smith, all the smiles. All right. Look, well, smile, because you know what we wanted to hear about the paper this morning?

No, I am at a chance to read the paper this morning. Well, he read one of the cases for where we took the Supreme Court. Oh, you do? Oh, yeah, it's I remember the case. The case is now people all over the South. The state will be not able to home be able to go. Oh, isn't that wonderful? That's remarkable. Now, you'll be able to go too. Well, that's just what we have been fighting for. Well, after four years, we were very proud. At least I am. I've been a tickle all the more. Well, we should be very proud. We are very proud of you for having done such. Well, it's hard struggle, but we've made it. For Grovy 2, it was a day of victory. And since that day, participation by Negroes in the election process in primary and general election has increased sharply, especially in Texas. To Houston's new county courthouse to get absentee ballots, come Negro and white alike.

At the polls, election commissioners have begun to include citizens of all races. Among them, Dr. LE Smith. Now, some people, while approving these results, deplore that all this has been accomplished by a growth of federal authority. Federal power, they say, is entering spheres long immune to its action. No doubt this is so. But others say this makes it all the more important that the growing power is controlled by a growing electorate. Along with the growth of government authority, we have seen everywhere a broadening of its base, accomplished through persuasion, legislation, constitutional amendment, and litigation, all avenues of peaceful change in a system based on law.

The men who wrote this document lived in an agricultural society. It is a measure of their wisdom that their plan for government still provides us with a workable framework for decision. Yet the transition from an agricultural to an industrial nation has subjected the Constitution to countless stresses and problems of interpretation. This film dealt with one of those many problems. General television. General television.

General television.