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SUPREME COURT OF THE UNITED sT‘A’TEs

No. 52.—OCTOBER TERM, 1952-;5

On l flit; “61‘" 'Cer‘tiorari

John Terry, et al., Petitioners,
v.

to the Tinted States-

Court of Appeals for
A' J‘ Adams, Ct 31' the Fifth Circuit.

[May —, 1953.]

Mn.JUsr10E CLARK, with whom THE CHIEF JLS'IICE,
M11 JUSTICE REED and M11.JUs1ICE JACKSON join,
concurring.

The issue is whether the Jaybird Democratic Associa—
tion of Fort Bend County Texas. by excluding Negroes
from its primaries has denied to \egro citizens of the
county a 1ig‘ht to vote secured byt the Fifteenth Amend-
ment. On March 16. 1950, petitioners 011 behalf of them—
selves and similarly situated Negro citizens in Fort Bend
County instituted a clas ss action against respondents 111-
diVidually and as officers of the Jay bird Democratic
Association. The complaint in substance charged that
the Negro petitioners 11 ere duly qualified voters of the
State of Texas 11 ho for many years and solely because of
their 1ace and color had been denied the right to Vote in
the primaries of the Assoeiation, a political party. Con—
tending that these practices tiansgressed the Constitu-
tion and laws of the United States,2 petitioners sought

‘ See Fed. Rules CiV. Proe. ‘23.

3 Petitioners mainly rested their 1l11i1n< 011 the Fourteenth 11nd
Fifteenth Amenthnents, 11nd S l. S..C § 31.

A1‘ti1le XIV “Section 1. All per son< born 01 11:1l1tur1 ized in the
lnited St t;1t11<, 11nd subitet to the j111i111i1tio11 ther',eol :11e eitizens
ol the United S11 1111s and of the St 1t11 “helein 1l1eV reside. 1\o State
shall 111111111 01 enforce 1111V 111w \1l1iel1 shall 11l')1itlge the 11111111100 01
i11111111nitie< ol citizens ot the l nitetl S11 ites; 1101 shall any State (le—
p1'i1e 1111} person oll lite, libeitV, 01 1110peitV,\1ithout due process

 

 52—CONCURRING.
2 TERRY 1). ADAMS.

declaratory and injunctive relief.“ Respondents insisted
on the status of the Jaybird Democratic Association as
not a political party regulated by Texas statutes but
merely a private voluntary group. The District Court
held that the J aybird Democratic Association was a politi—
cal party, and ruled its discriminatory exclusion of
Negroes from the primary invalid." Judgment accord-

of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”

Article XV. "Section 1. The right of citizens of the l'nited 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.

“Section 2. The Congress shall have power to enforce this article
by appropriate legislation.”

8 U. S. C. §312 “All citizens of the United States who are other—
wise (‘Iualified by law to vote at any election by the people in any
State, Territory, district, county, city, parish, township, school dis—
trict, municipality, or other territorial subdivision, shall be entitled
and allowed to vote at all such elections, without distinction of race,
color, or previous condition of servitude; any constitution, law, custom,
usage, or regulation of any State or Territory, or by or under its
authority, to the contrary notwithstanding.”

”28 U. S. C. §§ 1331, 2201. Petitioners abandoned a claim to
money damages, apparently grounded on S U. S. C. §§ ~13, 47.

'1 00 F. Supp. 595 (D. C. S. D. Tex. 1050). The District Judge
supported his conclusions by reference to Art. 3163, Vernon’s, Texas
Civil Statutes (1925):

"Art. 3103. Parties, without State organization

"Any political party without a State organization desiring to
nominate candidates for county and precinct offices only may nom—
inate such candidates therefor under the provisions of this title by
primary elections or by a county convention held on the legal primary
election day, which convention shall be composed of delegates from
various election precincts in said county, elected therein at primary
conventions held in such precincts between the hours of eight a. in.
and ten 1). m. of the preceding Saturday. All nominations made by
any such parties shall be certified to the county clerk by the chairman
of the county committee of such party, and, after taking the same
course as nominations of other parties so certified, shall be printed on

 

 52~—CONCURR1NG.
TERRY v. ADAMS. 3

ingly entered declared petitioners legally entitled to vote
in the Jaybird primary. The District Court refused an
injunction but retained jurisdiction to grant further
appropriate relief.“ The Court of Appeals reversed; in
its View the discriminatory exclusions were not reached .
by the terms of the Constitution and congressional ‘Yt‘t
enactments.“

An old pattern in new guise is revealed by the record.7
The Jaybird Democratic Association of Fort Bend County
was founded in 1889 to promote “good government” in
the post—Reconstruction period. During its entire life
span the Association has restricted membership to Whites.
In earlier years. the members at mass meetings deter-
mined their choice of candidates to support at forthcom—
ing official elections. Subsequently the Association de—
veloped a system closely paralleling the structure of the
Democratic Party. The Association is governed by an
Executive Committee of twenty-two persons, one from
each voting precinct in the county. The Committee in
each election year sets the date of the Jaybird primary

the official ballot in a separate column, headed by the name of the
party; provided, a written application for such printing shall have
been made. to the county judge, signed and sworn to by three per
cent of the entire vote cast in such county at the last general election.”

This provision has been substantially rccodificd as Art. 13.54, Vernon's
Texas Election Code (1952).

7‘ "Further necessary or proper relief based on a declaratory judg-
ment or decree may be granted, after reasonable notice and hearing,
against any adverse party whose, rights have been determined by such
judgment." 28 U. S. C. (Supp. V) §2202.

The District Judge refused injunctive relief because the affairs of
the, .la_\'bird Democratic Association are controlled by an Executive
Conunittee of twenty-two persons; the four named defendants before
the court had not the power to permit petitioners to vote in the
.laylnrd balloting.

“ 103 F. 2d 600 (C. A. 5th Cir. 1952).

7 Cf. Nixon \'. Hcrmlmz. 273 [7. S. 536 (1927]; Nixon v. Camden,
286 U. S. 73 (1932); Smith \‘. [Utterly/1t, 321 If. S 649 (19-14).

 

 52—CONCI‘RRING.
4 TERRY v. ADAMS.

for selecting by ballot the candidates to be endorsed by
the Association for public office in the county. The
machinery of the Jaybird Democratic Association pri—
mary now differs from the state-regulated Democratic
Party primary mainly in the Association's prohibition
of more than two consecutive terms for office holders,
the absence of a pledge on the ballot at the Jaybird
primary, and the Associations practice of not officially
filing as a ticket the names of candidates successful in
its balloting. And for more than a half century the
Association has adhered to its guiding principle: to deny
the Negro voters of Fort Bend County any effective voice
in their government.

The Court of Appeals. in reversing the District Court,
largely relied on what it deemed “the settled course of
decision culminating in Collins v. Hardyman, 341 U. S.
651, that it was not against individual. but against state,
action that the Fourteenth and Fifteenth Amendments
and 8 U. S. C. A. §§ 43 and 47 were, and are, directed.” 5
But Collins dealt not with racial discrimination at the
ballot box but merely “a lawless political brawl, precipi—
tated by a handful of white citizens against other white
citizens.” 341 U. S., at 662. In any event, Collins adju—
dicated that Congress in the narrow class of conspiracies
defined by the Civil Rights Statutes had not included the
conspiracy charged in that particular complaint; expressly
refraining from constitutional questions, ibid., that case
cannot be held controlling here.”

S193 F. 2d, at 602, 605.

” Since in this case, we hold the activities of the Jaybird Democratic
Association unlawful under the independent reach of the Fifteenth
Amendment, the applicability of 8 U. S. C. §31 need not be con—
sidered now. See ('nited States \’. Rccsc, 92 [7. S. 214, 218 (1876);
('nilctl States \‘. C'i‘uilcslIan/r. 9?. U. S. 542, 555—556 (187(3). Cf.
James v. [3011722012. 100 U. S. 127 (1903), with EU partc Yarbrougli,
110 [7. S. 651 (188-1), and Myers \1 Anderson, 238 U S. 368, 379
(1015).

 

 52—CONCL‘RR1NG.
TERRY o. ADAMS. 5

In our View, the Court of Appeals has misconccived the
thrust of our recent decisions. The Fifteenth Amend—
ment secures the franchise exercised by citizens of the
United States against abridgment by any state 011 the
basis of race or color. In Smith v. Allwright, supra, this
Court held that the Democratic Party of itself, and per-
force any other political party, is prohibited by that
Amendment from conducting a racially discriminatory pri-
mary election. By the rule of that case. any “part of the
machinery for choosing officials” becomes subject to the
Constitution’s restraints. Id., at 644. There, as here,
we dealt with an organization that tool; the form of “vol-
untary association” of unofficial character. But because
in fact it functioned as a part of the state’s electoral ma—
chinery, we held it controlled by the same constitutional
limitations that ruled the official general election.

We agree with Chief District Judge Kennerly that the
Jaybird Democratic Association is a political party 1”
whose activities fall within the Fifteenth Amendment’s
self—executing ban. See Guinn. v. United States, 238 U. S.
347, 363 (1915); M'yers v. Anderson, 238 U. S. 368, 379—
380 (1915).” Not every private club, association or
league organized to influence public candidacies or politi—
cal action must conform to the Constitution’s restrictions
on political parties. Certainly a large area of freedom
permits peaceable assembly and concerted private action
for political purposes to be exercised separately by white
and colored citizens alike. More, however, is involved
here.

The record discloses that the Jaybird Democratic Asso—
ciation operates as part and parcel of the Democratic
Party. an organization existing under the auspices of

1” See Smith \‘. Allu'riglzt. 331 U. S (31.0, 602 (1044‘); Nixon, V'. Con—
S

(1011. 286 1’. S 73, 88-89 (1032,). cc note 4, supra.
” See also Neal V. Delaware. 1053 1'. S. 370, 381L300 (1881); Ex
part0 Yarbroug/z, 110 U. S. 051, (5155 (1881).

 

 52—CONCURRING.
6 TERRY e. ADAMS.

Texas law.” Each maintains the same basic qualification
for membership: eligibility to vote under Texas law. Al-
though the state Democratic Party in Texas since Smith
v. Allwrz'g/Lt, supra, no longer can restrict its membership
to whites, the Jaybird Democratic Association bars Ne—
groes from its ranks. In May of each election year it
conducts a full-scale wnite primary in which each candi—
date campaigns for his candidacy subject to the action of
that primary and the Democratic primary of July, linking
the two primaries together. After gaining the Jaybird
Democratic Association’s endorsement, the announced
winners after full publicity then file in the July Demo—
cratic primary. The record reveals that 3,910 eligible
voters were listed in Fort Bend County in the presidential
year 1944; though only 2,032 participated in the July pri—
mary under the Democratic banner, 3,790 members voted
in the May balloting of the J aybird Democratic Associa—
tion. In 1946, an off—year for presidential balloting, eligi—
ble voters numbered 4.460 ; the Association’s May primary
polled 3,309 votes. and the Democratic July primary
counted but 2.996. And while the lists in 1948, again a
presidential year. show only 3,856 eligible electors in the
County, the Jaybird primary mustered a total vote of
4.055, compared with 3.108 in the primary voting in July.
Significantly, since 1889 the winners of the Jaybird Dem—
ocratic Association balloting, with but a single exception
shown by this record,” ran unopposed and invariably

‘3 The record in this case comprises not only a concise stipulation
of facts, but also 43 additional pages of directly relevant testimony.
Obviously the whole of the record underlay the determinations of the
courts below, and must be considered in an appellate review of their
decisions.

1” In 1944, Mr. Charles Schultz emerged victorious from the Jay-
bird balloting and was indorsed as its candidate for County Judge.
In the July Democratic primary, Schultz triumphed by a vote of
2,025 to 1 for Mr. Mike Dornak. Schultz held (illicc for two terms

 

 52—CONCURRING.
TERRY v. ADAMS. 7

won in the Democratic July primary and the subsequent
general elections for county—wide office.

Quite evidently the Jaybird Democratic Association
operates as an auxiliary of the local Democratic Party
organization, selecting its nominees and using its machin-
ery for carrying out an admitted design of destroying
the weight and effect of Negro ballots in Fort Bend
County. To be sure, the Democratic primary and the
general election are nominally open to the colored elector.
But his must be an empty vote cast after the real deci—
sions are made. And because the Jaybird-indorsed nom-
inee meets no opposition in the Democratic primary, the
Negro minority's vote is nullified at the sole stage of the
local political process where the bargaining and interplay
of rival political forces would make it count.

The Jaybird Democratic Association device, as a. re—
sult, strikes to the core of the electoral process in Fort
Bend County. Whether viewed as a separate political
organization or as an adjunct of the local Democratic
Party, the Jaybird Democratic Association is the decisive
power in the county’s recognized electoral process. Over
the years its balloting has emerged as the locus of effec-
tive political choice. Consonant with the broad and
lofty aims of its Framers, the Fifteenth Amendment, as
the Fourteenth “refers to exertions of state power in all
forms." Shelley v. Kramer, 334 U. S. 1, 20 (1948). Ac—
cordingly. when a state structures its electoral apparatus
in a form which devolves upon a political organization
the uncontested choice of public ofi‘icials, that organiza-

until 1048. In that year, in accord with a Jaybird Association rule
prohibiting more than two consecutive terms in ofliee, Mr. Baker
received the Jaybird indorsenicnt for the county judgeship. Schultz,
however, insisted on running in the Denmeratic primary; he lost out
to Baker by a vote of 2,209 to 803. See It. 34, 70. The record .
reveals, however, that the .lavbird—indorsed candidates for precinct 1
otliee were not quite as, eon'()('l:lfloll unlawful under the imlependent reach of the Fifteenth
r'\lll(‘ll(llll(‘lll, the applicability of 8 l'. S. C. §fjl need not be con-
sidered now: See ('m'lw/ States v. Net‘s-w. 9‘2 1‘. S DU, 318 (1870);
{'Hh‘m/ Strtlrx v. ('i'zu'lralerHl'. 93 l'. S. 543, 5.7 5.36 (187(5). Cf.
Jame.»- v.15’ou‘nH/H. 1510 l'. S. 137 (19013), with fir parte l'ai'brour/lz,
Ill) l'. S. (3.31 (HM), and Jig/m \'. .rlmlciuson. 238 l'. S. 308, 370
i may.

I" See Smith v. .-l/lH‘rfq/4l. Jill l'. S MO, 662 (IN—l) I AVQ'U/I, \'. Con—
(lo/i. 2M3 l'. S. 753, (SS—Sf) (1032). See note 4, supra.

‘1 See also Neill \'. D('/Hll‘(ll'(’. 105} l'. S. 370, 389—3‘1'0 (1881); Ed;
[in/{u l'ui'bx'uug/L llU l'. S. (351, 0‘55 (lSS-l).

 

 {BB—MEMO.
TERRY t’. ADAMS.

The record discloses that the Jaybird Democratic Asso-
ciation operates as part and parcel of the Democratic
Party. an organization existing under the auspices of
Texas law. Each maintains the same basic qualification
for membership: eligibility to vote under Texas law. Al-
though the state Democratic Party in Texas since SimTt/z,
v. Allzrrz'ght, supra. no longer can restrict its membership
to whites, the Jaybird Democratic Association bars Ne—
groes from its ranks. In May of each election year it
conducts a full—scale white primary in which each candi—
date campaigns for his candidacy subject to the action of
that primary and the Democratic primary 0f Jul? , linking
the two primaries together. After gaining the Jaybird
Democratic Association’s endorsement, the announced
winners after full publicity then file in the July Demo—
cratic primary. The record reveals that 3,910 eligible
voters were listed in Fort Bend County in the presidential
year 1944; though only 2032 participated in the July pri-
mary under the Democratic banner: 3,790 members voted
in the May balloting of the Jaybird Democratic Associa—
tion. In 1946‘ an off-year for presidential balloting, eligi—
ble voters numbered 4.460; the Association’s )rIay primary
polled 3309 votes. and the Democ‘atic July primary
counted but 2.996. And while the lists in 1948‘. again a
presidential year“ show only 3,856 eligible electors in the
County, the Jaybird primary mustered a total vote of
4.055. compared with 3.108 in the primary voting in July.
Significantly, since 1880 the winners of the Jaybird Dem—
ocratic Association balloting, with but a single exception
shown by this record,” ran unopposed and invariably

‘3 I11 1044, Mr. Charles Frlmltz emerged victorious from the Jay—
bird balloting and was indorsed as its candidate for County Judge.
In the July Democratic primary, Schultz trimnphcd by a vote of
12025 to l tor Mr. Mike Dornak. Schultz held office for two terms
until 1045'. In that year, in accord with a Jaybird _=\.<>'ociation rule

 

 53—MEMO.
TERRY U. ADAMS. 7

won in the Democratic July primary and the subsequent
general elections for county—Wide office.

Quite evidently the Jaybird Democratic Association
operates as an auxiliary of the local Democratic Party
organization, selecting its nominees and using its machin—
ery for carrying out an admitted design of destroying
the weight and effect of Negro ballots in Fort Bend
County. To be sure, the Democratic primary and the
general election are nominally open to the colored elector.
But his must be an empty vote cast after the real deci-
sions are made. And because the Jaybird-indorsed nom—
inee meets no opposition in the Democratic primary, the
Negro minority's vote is nullified at the sole stage of the
local political process Where the bargaining and interplay
of rival political forces would make it count.

The Jaybird Democratic Association device, as a. re—
sult, strikes to the core of the electoral process in Fort
Bend County. Whether viewed as a separate political
organization or as an adjunct of the local Democratic
Party, the Jaybird Democratic Association is the decisive
power in the county‘s recognized electoral process. Over
the years its balloting has emerged as the locus of effec—
tive political choice. Consonant with the broad and
lofty aims of its Framers, the Fifteenth Amendment, as
the Fourteenth. “refers to exertions of state power in all
forms." Shelley v. Kramer, 334 U. S. 1. 20 (1948). Ac—
cordingly. when a state structures its electoral apparatus
in a form which devolves upon a political organization
the uncontested choice of public officials, that organiza—
tion itself, in whatever disguise. takes on those attributes
of government which draw the Constitution’s safeguards

prohibiting more than two consecutive terms in oilice, Mr. Baker
received the Vla‘vbird iiidor:~'eineiit {or the county jndgeship. Schultz,
however, insisted on runningr in the I'leniocratic primary; he lost out
to linker by :1 vote of “3‘2le To 503. See it. 31.. 79.

 

 53—MEMO.

S TERRY t‘. ADAMS.

into play. Smith Y. i-lllwrz'g/tt, supra, at 694; cf. United ‘
States Y. Classic, 313 ll. L. 299, 324: (194:1); Lane Y. lllz’l— _. ‘
son, 307 U. S. 268, 275 (1939).

In sum. we believe that the activities of the Jaybirdh
Democratic Association fall within the broad principle
laid down in Smith V. Allurrz‘g/zt, supra. The judgment
of the Court of Appeals which reversed the District Court,
therefore. should be reversed. The cause should be re-
manded to the District Court with directions to enter,
under its retained jurisdiction by 28 U. S. C. S 2202. such
order or decree it deems necessary and proper to safe— ‘
guard effectively petitioners' voting rights guaranteed by ’y
the Fifteenth Amendment.

 

 Dear Chief:

Bob indicated his agreement. Hope
this is O.K. with you.
TCC
THE HONORABLE

THE CHIEF JUSTICE

 

 I
f

r‘”

: KIA, Chief Justice

1 .
l

SUPREME COURT 0E THE UNITED STATES ‘

i: F' 1 ark?

3;“. b"

No. 52.—OCTOBER TERM, 1952. . p _‘ ___‘_ ”_

313..-; p 1

On Writ of Certiorarigvs Lukf—z ~"““"’
to the United States
Court of Appeals for

A' J' “dams? Ct 31‘ the Fifth Circuit.

John Terry, et al., Petitioners.
1'.

[April ——, 1953.]

Memorandum of MR. JUSTICE CLARK.

The Fifteenth Amendment secures the franchise exer— \
cised by citizens of the United States against abridgment
by any state on account of race or color. In Smith V.
illlu'rig/Lt, 321 U. S. 649 (1944). this Court held that the
Democratic Party of itself and, by analogy, any other
political party is prohibited by the Fifteenth Amendment
from excluding voters at its primary on the basis of race
or color. By the rule of that case, any “part of the ma—
chinery for choosing officials” becomes subject to the
Constitutions restraints. Id., at 664. There, as here,
we dealt with an organization that took the form of a
“voluntary as