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In recognition of Black History Month, this edition of TMI Briefs highlights voting barriers faced by Black Americans during the era of the one-party South, as well as several of the legal battles fought by the NAACP Legal Defense and Educational Fund, Inc. (LDF) to ensure the full and equal participation of Black voters and eliminate the “white primary” system.

Essential to all democracies is the right to vote. In the U.S., the electoral process typically begins with a primary election that will determine which candidates will compete in the general election. While primary elections may seem like a typical marker of a functioning democracy, they have a history that dates back to Reconstruction and is rooted in white supremacy. In fact, the use of the primary did not become widespread until the middle and late 1870s with the end of Reconstruction.1 This period brought with it an end to the efforts to make true the promises of American democracy. With the enactment of Jim Crow laws, Black Americans saw their right to vote stripped through the authorization of poll taxes, grandfather clauses, literacy tests, and other devices.2 It was in this climate of Black voter disenfranchisement that primary elections took on a greater importance in American politics.

A group of Black people raise their hands as they take an oath during a voter registration drive June 18, 1966. Memphis to Jackson freedom marchers camped here that night and staged a march on the Post Office where they urged local Blacks to register and vote in Belzoni, Mississippi, USA. Bettmann/Contributor via Getty Images. 
8/11/1948-Charleston, SC: Negro voters, for the first time since reconstruction days, went to the polls in South Carolina on August 11 after Supreme Court Decision ruled they could not be deprived of the franchise. In picture, they line up in ward 11, in Charleston, awaiting their turn. No incidents were reported however. Bettmann/Contributor via Getty Images 

In the South, years of disenfranchisement of Black citizens following Reconstruction enabled the development of one-party rule under the Democratic Party by the early 20th Century. The Republican Party, which had championed the rights of Black people during and after the Civil War, had been effectively nullified in the South as a political force – a status quo that would remain intact until the party sentiments switched with the adoption of the Civil Rights Act of 1964 under Democratic President, Lyndon B. Johnson. Leading up to the 20th Century, Southern Democrats attempted to persuade white Republicans and Populists to support the disenfranchisement of Black citizens, ironically arguing that there would be more political freedom for white citizens and greater political power for the Republican Party.3 Charles B. Aycock, a former governor of North Carolina, remarked that there would be “a greater toleration of opinion… The Republican party will be freed from the stigma of being called the ‘Negro party,’ and…will have somewhat more influence in making and shaping a wholesome public opinion.”4 While arguments such as these garnered support for Black disenfranchisement, the projected increase in political influence for Republicans did not occur. Disenfranchisement presented Southern Democrats with the opportunity for a dramatic power grab. They established white primaries, which excluded all except white voters from participating in primary elections. Many saw the white primary as necessary to unify a white voting base after the disenfranchisement of Black voters.5 These measures were highly effective in ensuring the muting of opposition, namely that of Black voters. This is evidenced by the fact that none of the former Confederate states passed any significant additional suffrage qualifications (such as literacy tests and poll taxes) after establishing statewide white primaries.6 There was no need at the time because the white primaries effectively excluded Black voters from the political process and depressing Black voter registration because Black people were denied the ability to vote in the elections that mattered. It would not be until the landmark Smith v. Allwright case in 1944 that white primaries would be struck down.7 

Philadelphia Record after the landmark opinion in Smith v. Allwright. From LDF’s Archives 

Short Lived Victory in Texas

Texas would prove to be the main battleground in the fight to end white primaries. Smith v. Allwright, however, was not the first case that challenged white primaries in Texas. Nixon v. Herndon8 and Nixon v. Condon9 were pivotal Supreme Court cases that chipped away at the legal framework that allowed white primaries to persist. In both cases, Dr. L.A. Nixon, a Black man and registered Democrat, was refused the right to vote in the Democratic primary in Texas and subsequently sued the elections officials who barred him from participating.10 It must be understood that Black people were not prevented from registering with the Democratic party—merely from participating in its primaries. In Nixon v. Herndon, which was decided on March 7, 1927, Dr. Nixon was refused the right to vote in the Texas primary due to a statute that read, “in no event shall a negro be eligible to participate in a Democratic Party election held in the State of Texas.”11 While his complaint was dismissed in the local U.S. District Court, a writ of error to the Supreme Court led to a reversal of the dismissal.12 Justice Holmes held that “…it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.”13  

This victory, however, was short-lived which proved to be an all-too-common occurrence in the fight for voting rights. Shortly after the ruling in Nixon v. Herndon, the Texas state legislature passed a new statute that empowered the state Democratic Committee to create its own limitations on its primary.14 The new resolution read that “all white democrats who are qualified under the Constitution and laws of Texas…and none others be allowed to participate in the primary elections.” The thinking behind this action was that the Democratic Party, a private organization, could circumvent the ruling in Nixon v. Herndon. However, in a 5-4 decision by the Supreme Court, Dr. Nixon’s right to vote was upheld in Nixon v. Condon.15

African-American citizens line up to vote in an election in Catonsville, Maryland, November 9, 1946. Afro American Newspapers/Gado via Getty Images 

Justice Cardozo’s opinion not only held that the new law was controlled by the ruling in Herndon, but also that “[d]elegates of the State’s power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black.”16  This was a hard-fought victory for the team of lawyers that included NAACP Special Counsel Charles H. Houston. 

"Charles Houston, Bill Hastie, and Thurgood defeated the white primary....demonstrating in their wisdom a tactically cautious, yet strategically bold technique that came to mark LDF legal efforts."
Jack Greenberg
Jack GreenbergCrusaders in the Court

The Democratic Party's Stronghold on the South

Again, power would not be so readily conceded. Texas changed its statutes—this time leaving the question of eligibility up to the party convention, which then voted to limit membership to white electors.17 A subsequent Supreme Court ruling in yet another Texas white primary case, Grovey v. Townsend,18 would deliver another severe blow to efforts to eradicate the white primary. The Court found that “the Democratic party in that state is a voluntary political association and, by its representatives assembled in convention, has the power to determine who shall be eligible for membership and, as such, eligible to participate in the party’s primaries.”19 The Court focused on the involvement of the state (“state action”) in deciding this case differently than Nixon v. Condon. In Nixon v. Condon, the Court found that there was state action because the state’s power was delegated to the State Executive Committee.20 The State Executive Committee of the Democratic Party, empowered by the Texas legislature, had then directly excluded Black people from voting in its primary. However, in Grovey v. Townsend, the Court found that because this new rule excluding Black people was enacted at the party convention, it expressed the will of the party, a private organization, and was not on its face state action that would be governed by the constitutional prohibition on racial discrimination.21  

This ruling would make for an extremely difficult legal landscape to overcome white primaries. Thurgood Marshall, LDF founder and first African American Supreme Court Justice, and William Henry Hastie, Jr., a founding member of LDF’s Board of Directors and first African American federal court judge, sought to advance a legal theory that primaries were integral to the electoral process and thus state action.22 While Marshall and Hastie were struggling with a pending voting rights case, the U.S. Supreme Court decided United States v. Classic,23 which involved a federal prosecution for falsifying returns in Louisiana’s primary election for Congress. At the core of this case was whether the Constitution protected the right to vote in a primary. Justice Harlan Fisk Stone delivered an opinion affirming that the right was protected and that “the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election.”24 

African American voters, able to vote for the first time in rural Wilcox County, Alabama, line up in front of a polling station at The Sugar Shack, a local general store. After the passage of the federal voting rights law in 1965, there were almost twice as many Black voters than Whites. | Location: Peachtree, Alabama, USA. Bettman via Getty Images 

A Watershed Case for Black Rights

This ruling in United States v. Classic created an opportunity for Marshall and Hastie to advance their theory. They dropped their pending case to pursue a case with a closer connection to the legal theory approved in United States v. Classic—one that involved a primary to elect a Senator or Representative to the U.S. Congress.25 In an environment in which participation in the Democratic primary was the only meaningful way to elect a Representative or Senator, the denial of Black participation effectively excluded Black voters from the political process. Challenging this practice would turn into the landmark Smith v. Allwright case. In 1940, Dr. Lonnie Smith was denied the right to vote in the Democratic primary and filed a lawsuit in local federal court. He was represented by Thurgood Marshall and William H. Hastie, who were both LDF attorneys at the time. The trial court dismissed the case, and the dismissal was affirmed by the U.S. 5th Circuit Court of Appeals.26 Marshall and Hastie took the case to the U.S. Supreme Court where they argued that this exclusion was a clear violation of the Fifteenth Amendment,27 as well as the equal protection clause of the Fourteenth Amendment.28 The Supreme Court agreed and overruled Grovey v. Townsend in 1944.

 

 

Justice Stanley Reed delivered the opinion, writing, “[t]he privilege of membership in a party may be…no concern of a State. But, when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the State makes the action of the party the action of the State.”29 

To provide context into the far-reaching impact of this decision, less than one percent of eligible Black people in Alabama, Louisiana, Mississippi, and South Carolina were registered to vote in 1940.30 In 1944, the number of Black people registered to vote in the South was estimated at 200,000.31 By 1948, this number had risen between 700,000 and 800,000 in 1948 and then one million in 1952.32 Thurgood Marshall considered Smith v. Allwright his most consequential case.33 LDF rightly celebrated this Supreme Court victory with a large office party—a “whopper” by all accounts.34 

Dr. Lonnie Smith (Fair Use Image via Texas State Historical Association)

During this Black History Month, LDF and the Thurgood Marshall Institute continue to celebrate the efforts of these litigants from the past to ensure a more just democracy. As we celebrate, we must continue to answer the call to protect the rights of Black Americans nationwide. The lessons from the fight to end white primaries deliver a powerful and sobering lesson. Namely, the vestiges of Jim Crow will contort themselves to persist in perpetuity. The ruling in Shelby County, Alabama v. Holder has breathed new life into those vestiges through the invalidation of the Section 5 preclearance requirements in the Voting Rights Act of 1965.35 Today, partisan and racial gerrymandering has diluted the political power of Black voters (and other racial minorities) through packing them into fewer congressional districts or spreading them into white-majority congressional districts.36 In this context, the importance of primary elections today cannot be understated. Accordingly, LDF will continue to take up the mantle of its past. Equipped with the tools of litigation, direct advocacy, and public education, LDF enters the upcoming primary season ready to defend voting rights as a part of our efforts to fulfill the promise of equality for all Americans. 

Voting Rights Hub

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LDF's comprehensive account of voter suppression in the 2020 election.
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[1] J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910 73 (1974).

[2] NAACP Legal Def. & Educ. Fund, Inc., Democracy Defended: Findings from the 2020 Election 26–27 (2021), https://www.naacpldf.org/wp-content/uploads/LDF_2020_DemocracyDefended-1-3.pdf.

[3] Kousser, supra note 1, at 72.

[4] Id.

[5] Id. at 76.

[6] Id. at 82. Note: There was an exception in Georgia in 1908. However, the state’s poll tax had already excluded most Black people from voting since its passage in 1877.

[7] Smith v. Allwright, 321 U.S. 649 (1944).

[8] Nixon v. Herndon, 273 U.S. 536 (1927).

[9] Nixon v. Condon, 286 U.S. 73 (1932).

[10] NAACP Legal Def. & Educ. Fund, United States Supreme Court Decision in Cases Presented by Lawyers for N.A.A.C.P. (1915 to 1944) and N.A.A.C.P. Legal Defense & Educational Fund, Inc. (1944 to 1957) [hereinafter LDF Supreme Court Cases, 1915-1957].

[11] Nixon v. Herndon, 273 U.S. at 540.

[12] LDF Supreme Court Cases, 1915-1957, supra note 10.

[13] Nixon v. Herndon, 273 U.S. at 541.

[14] LDF Supreme Court Cases, 1915-1957, supra note 10.

[15] Nixon v. Condon, 286 U.S. at 89.

[16] Id. at 89.

[17] LDF Supreme Court Cases, 1915-1957, supra note 10.

[18] Grovey v. Townsend, 295 U.S. 45 (1935).

[19] Id. at 52.

[20] Nixon v. Condon, 286 U.S. at 94.

[21] Grovey v. Townsend, 295 U.S. at 48.

[22] Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution 108 (1994).

[23] United States v. Classic, 313 U.S. 299 (1941).

[24] Id. at 319.

[25] Greenberg, supra note 22, at 108.

[26] LDF Supreme Court Cases, 1915-1957, supra note 10.

[27] U.S. Const. amend XV, § 1.

[28] U.S. Const. amend XIV, § 1.

[29] Smith v. Allwright, 321 U.S. at 664–65.

[30] Greenberg, supra note 22, at 108.

[31] Michael J. Klarman, The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking, 29 Fla. State Univ. L. Rev. 55, 70 (2001).

[32] Id. at 70–71.

[33] Jim Crow 2021: The Latest Assault on the Right to Vote: Hearing Before the S. Comm. on the Judiciary, 117th Cong. 1 (2021) (statement of Sherrilyn Ifill, President and Director Counsel, NAACP Legal Defense and Educational Fund).

[34] Greenberg, supra note 22, at 109.

[35] Shelby County v. Holder, 570 U.S. 529 (2013).

[36] Colby Itkowitz & Harry Stevens, Black and Latino Voters Have Been Shortchanged in Redistricting, Wash. Post (Jan. 25, 2022), https://www.washingtonpost.com/politics/2022/01/25/redistricting-black-latino-voters/.