U.S. Supreme Court Guinn & Beal v. United States, 238
U.S. 347 (1915) Guinn & Beal v. United
States No. 96 Argued October 17,
1913 Decided June 21, 1915 238
U.S. 347 CERTIFICATE FROM THE CIRCUIT COURT
OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus The so-called Grandfather Clause of the amendment to the
constitution of Oklahoma of 1910 is void because it violates the
Fifteenth Amendment to the Constitution of the United States.

															The Grandfather Clause being unconstitutional, and not being
separable from the remainder of the amendment to the constitution
of Oklahoma of 1910, that amendment as a whole is invalid.

															The Fifteenth Amendment does not, in a general sense, take from
the States the power over suffrage possessed by the States from the
beginning, but it does restrict the power of the United States or
the States to abridge or deny the right of a citizen of the United
States to vote on account of race, color or previous condition of
servitude. While the Fifteenth Amendment gives no right of
suffrage, as its command is self-executing, rights of suffrage may
be enjoyed by reason of the striking out of discriminations against
the exercise of the right.

															A provision in a state constitution recurring to conditions
existing before the adoption of the Fifteenth Amendment and the
continuance of which conditions that amendment prohibited, and
making those Page 238 U. S. 348 conditions the test of the right to the suffrage, is in conflict
with, and void under, the Fifteenth Amendment.

															The establishment of a literacy test for exercising the suffrage
is an exercise by the State of a lawful power vested in it not
subject to the supervision of the Federal courts.

															Whether a provision in a suffrage statute may be valid under the
Federal Constitution if it is so connected with other provisions
that are invalid as to make the whole statute unconstitutional is a
question of state law, but, in the absence of any decision by the
state court, this court may, in a case coming from the Federal
courts, determine it for itself.

															The suffrage and literacy tests in the amendment of 1910 to the
constitution of Oklahoma are so connected with each other that the
unconstitutionality of the former renders the whole amendment
invalid.

															The facts, which involve the constitutionality under the
Fifteenth Amendment of the Constitution of the United States of the
suffrage amendment to the constitution of Oklahoma, known as the
Grandfather Clause, and the responsibility of election officers
under § 5508, Rev.Stat., and § 19 of the Penal Code for preventing
people from voting who have the right to vote, are stated in the
opinion. Page 238 U. S. 354 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

															This case is before us on a certificate drawn by the court below
as the basis of two questions which are submitted for our solution
in order to enable the court correctly to decide issues in a case
which it has under consideration. Those issues arose from an
indictment and conviction of certain election officers of the State
of Oklahoma (the plaintiffs in error) of the crime of having
conspired unlawfully, willfully and fraudulently to deprive certain
negro citizens, on account of their race and color, of a right to
vote at a general election held in that State in 1910, they being
entitled to vote under the state law and which right was secured to
them by the Fifteenth Amendment to the Constitution of the United
States. The prosecution was directly concerned with § 5508,
Rev.Stat., now § 19 of the Penal Code which is as follows:

															"If two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same,
or if two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured, they
shall be fined not more than five thousand dollars and imprisoned
not more than ten years, and shall, moreover, be thereafter
ineligible to any office or place of honor, profit, or trust
created by the Constitution or laws of the United States. " Page 238 U. S. 355 We concentrate and state from the certificate only matters which
we deem essential to dispose of the questions asked.

															Suffrage in Oklahoma was regulated by § 1, Article III of the
Constitution under which the State was admitted into the Union.
Shortly after the admission, there was submitted an amendment to
the Constitution making a radical change in that article which was
adopted prior to November 8, 1910. At an election for members of
Congress which followed the adoption of this Amendment, certain
election officers, in enforcing its provisions, refused to allow
certain negro citizens to vote who were clearly entitled to vote
under the provision of the Constitution under which the State was
admitted, that is, before the amendment, and who, it is equally
clear, were not entitled to vote under the provision of the
suffrage amendment if that amendment governed. The persons so
excluded based their claim of right to vote upon the original
Constitution and upon the assertion that the suffrage amendment was
void because in conflict with the prohibitions of the Fifteenth
Amendment, and therefore afforded no basis for denying them the
right guaranteed and protected by that Amendment. And upon the
assumption that this claim was justified and that the election
officers had violated the Fifteenth Amendment in denying the right
to vote, this prosecution, as we have said, was commenced. At the
trial, the court instructed that, by the Fifteenth Amendment, the
States were prohibited from discriminating as to suffrage because
of race, color, or previous condition of servitude, and that
Congress, in pursuance of the authority which was conferred upon it
by the very terms of the Amendment to enforce its provisions, had
enacted the following (Rev.Stat., § 2004):

															"All citizens of the United States who are otherwise qualified
by law to vote at any election by the people of any State,
Territory, district, . . . municipality, . . . or Page 238 U. S. 356 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."

															It then instructed as follows:

															"The State amendment which imposes the test of reading and
writing any section of the State constitution as a condition to
voting to persons not on or prior to January 1, 1866, entitled to
vote under some form of government, or then resident in some
foreign nation, or a lineal descendant of such person, is not
valid, but you may consider it insofar as it was in good faith
relied and acted upon by the defendants in ascertaining their
intent and motive. If you believe from the evidence that the
defendants formed a common design and cooperated in denying the
colored voters of Union Township precinct, or any of them, entitled
to vote, the privilege of voting, but this was due to a mistaken
belief sincerely entertained by the defendants as to the
qualifications of the voters -- that is, if the motive actuating
the defendants was honest, and they simply erred in the conception
of their duty -- then the criminal intent requisite to their guilt
is wanting, and they cannot be convicted. On the other hand, if
they knew or believed these colored persons were entitled to vote,
and their purpose was to unfairly and fraudulently deny the right
of suffrage to them, or any of them entitled thereto, on account of
their race and color, then their purpose was a corrupt one, and
they cannot be shielded by their official positions."

															The questions which the court below asks are these:

															"1. Was the amendment to the constitution of Oklahoma,
heretofore set forth, valid?"

															"2. Was that amendment void insofar as it attempted to debar
from the right or privilege of voting for a qualified Page 238 U. S. 357 candidate for a Member of Congress in Oklahoma, unless they were
able to read and write any section of the constitution of Oklahoma,
negro citizens of the United States who were otherwise qualified to
vote for a qualified candidate for a Member of Congress in that
State, but who were not, and none of whose lineal ancestors was
entitled to vote under any form of government on January 1, 1866,
or at any time prior thereto, because they were then slaves?"

															As these questions obviously relate to the provisions concerning
suffrage in the original constitution and the amendment to those
provisions which forms the basis of he controversy, we state the
text of both. The original clause, so far as material, was
this:

															"The qualified electors of the State shall be male citizens of
the United States, male citizens of the State, and male persons of
Indian descent native of the United States, who are over the age of
twenty-one years, who have resided in the State one year, in the
county six months, and in the election precinct thirty days, next
preceding the election at which any such elector offers to
vote."

															And this is the amendment:

															"No person shall be registered as an elector of this State or be
allowed to vote in any election herein, unless he be able to read
and write any section of the constitution of the State of Oklahoma;
but no person who was, on January 1, 1866, or at any time prior
thereto, entitled to vote under any form of government, or who at
that time resided in some foreign nation, and no lineal descendant
of such person, shall be denied the right to register and vote
because of his inability to so read and write sections of such
constitution. Precinct election inspectors having in charge the
registration of electors shall enforce the provisions of this
section at the time of registration, provided registration be
required. Should registration be dispensed with, the provisions of
this section shall be enforced by the Page 238 U. S. 358 precinct election officer when electors apply for ballots to
vote."

															Considering the questions in the right of the text of the
suffrage amendment, it is apparent that they are two-fold, because
of the two-fold character of the provisions as to suffrage which
the amendment contains. The first question is concerned with that
provision of the amendment which fixes a standard by which the
right to vote is given upon conditions existing on January 1, 1866,
and relieves those coming within that standard from the standard
based on a literacy test which is established by the other
provision of the amendment. The second question asks as to the
validity of the literacy test and how far, if intrinsically valid,
it would continue to exist and be operative in the event the
standard based upon January 1, 1866, should be held to be illegal
as violative of the Fifteenth Amendment.

															To avoid that which is unnecessary, let us at once consider and
sift the propositions of the United States, on the one hand, and of
the plaintiffs in error, on the other, in order to reach with
precision the real and final question to be considered. The United
States insists that the provision of the amendment which fixes a
standard based upon January 1, 1866, is repugnant to the
prohibitions of the Fifteenth Amendment because, in substance and
effect, that provision, if not an express, is certainly an open,
repudiation of the Fifteenth Amendment, and hence the provision in
question was stricken with nullity in its inception by the
self-operative force of the Amendment, and, as the result of the
same power, was at all subsequent times devoid of any vitality
whatever.

															For the plaintiffs in error, on the other hand, it is said the
States have the power to fix standards for suffrage, and that power
was not taken away by the Fifteenth Amendment, but only limited to
the extent of the prohibitions which that Amendment established.
This being true, as the Page 238 U. S. 359 standard fixed does not in terms make any discrimination on
account of race, color, or previous condition of servitude, since
all, whether negro or white, who come within its requirements enjoy
the privilege of voting, there is no ground upon which to rest the
contention that the provision violates the Fifteenth Amendment.
This, it is insisted, must be the case unless it is intended to
expressly deny the State's right to provide a standard for
suffrage, or, what is equivalent thereto, to assert: a, that the
judgment of the State exercised in the exertion of that power is
subject to Federal judicial review or supervision, or b, that it
may be questioned and be brought within the prohibitions of the
Amendment by attributing to the legislative authority an occult
motive to violate the Amendment or by assuming that an exercise of
the otherwise lawful power may be invalidated because of
conclusions concerning its operation in practical execution and
resulting discrimination arising therefrom, albeit such
discrimination was not expressed in the standard fixed or fairly to
be implied, but simply arose from inequalities naturally inhering
in those who must come within the standard in order to enjoy the
right to vote.

															On the other hand, the United States denies the relevancy of
these contentions. It says state power to provide for suffrage is
not disputed, although, of course, the authority of the Fifteenth
Amendment and the limit on that power which it imposes is insisted
upon. Hence, no assertion denying the right of a State to exert
judgment and discretion in fixing the qualification of suffrage is
advanced, and no right to question the motive of the State in
establishing a standard as to such subjects under such
circumstances or to review or supervise the same is relied upon,
and no power to destroy an otherwise valid exertion of authority
upon the mere ultimate operation of the power exercised is
asserted. And, applying these principles to the very case in hand,
the argument of the Page 238 U. S. 360 Government, in substance, says: no question is raised by the
Government concerning the validity of the literacy test provided
for in the amendment under consideration as an independent
standard, since the conclusion is plain that that test rests on the
exercise of state judgment, and therefore cannot be here assailed
either by disregarding the State's power to judge on the subject or
by testing its motive in enacting the provision. The real question
involved, so the argument of the Government insists, is the
repugnancy of the standard which the amendment makes, based upon
the conditions existing on January 1, 1866, because, on its face
and inherently, considering the substance of things, that standard
is a mere denial of the restrictions imposed by the prohibitions of
the Fifteenth Amendment, and by necessary result, recreates and
perpetuates the very conditions which the Amendment was intended to
destroy. From this, it is urged that no legitimate discretion could
have entered into the fixing of such standard which involved only
the determination to directly set at naught or by indirection avoid
the commands of the Amendment. And it is insisted that nothing
contrary to these propositions is involved in the contention of the
Government that, if the standard which the suffrage amendment fixes
based upon the conditions existing on January 1, 1866, be found to
be void for the reasons urged, the other and literacy test is also
void, since that contention rests not upon any assertion on the
part of the Government of any abstract repugnancy of the literacy
test to the prohibitions of the Fifteenth Amendment, but upon the
relation between that test and the other as formulated in the
suffrage amendment, and the inevitable result which it is deemed
must follow from holding it to be void if the other is so declared
to be.

															Looking comprehensively at these contentions of the parties, it
plainly results that the conflict between them is Page 238 U. S. 361 much narrower than it would seem to be because the premise which
the arguments of the plaintiffs in error attribute to the
propositions of the United States is by it denied. On the very face
of things, it is clear that the United States disclaims the gloss
put upon its contentions by limiting them to the propositions which
we have hitherto pointed out, since it rests the contentions which
it makes as to the assailed provision of the suffrage amendment
solely upon the ground that it involves an unmistakable, although
it may be a somewhat disguised, refusal to give effect to the
prohibitions of the Fifteenth Amendment by creating a standard
which it is repeated, but calls to life the very conditions which
that Amendment was adopted to destroy and which it had
destroyed.

															The questions then are: (1) giving to the propositions of the
Government the interpretation which the Government puts upon them
and assuming that the suffrage provision has the significance which
the Government assumes it to have, is that provision, as a matter
of law, repugnant to the Fifteenth Amendment? which leads us, of
course, to consider the operation and effect of the Fifteenth
Amendment. (2) If yes, has the assailed amendment, insofar as it
fixes a standard for voting as of January 1, 1866, the meaning
which the Government attributes to it? which leads us to analyze
and interpret that provision of the amendment. (3) If the
investigation as to the two prior subjects establishes that the
standard fixed as of January 1, 1866, is void, what, if any, effect
does that conclusion have upon the literacy standard otherwise
established by the amendment? which involves determining whether
that standard, if legal, may survive the recognition of the fact
that the other or 1866 standard has not, and never had, any legal
existence. Let us consider these subjects under separate
headings.

															1. The operation and effect of the Fifteenth Amendment. This is its text: Page 238 U. S. 362 "Section 1. 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."

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

															(a) Beyond doubt, the Amendment does not take away from the
state governments in a general sense the power over suffrage which
has belonged to those governments from the beginning, and without
the possession of which power the whole fabric upon which the
division of state and national authority under the Constitution and
the organization of both governments rest would be without support
and both the authority of the nation and the State would fall to
the ground. In fact, the very command of the Amendment recognizes
the possession of the general power by the State, since the
Amendment seeks to regulate its exercise as to the particular
subject with which it deals.

															(b) But it is equally beyond the possibility of question that
the Amendment, in express terms, restricts the power of the United
States or the States to abridge or deny the right of a citizen of
the United States to vote on account of race, color or previous
condition of servitude. The restriction is coincident with the
power, and prevents its exertion in disregard of the command of the
Amendment

															But, while this is true, it is true also that the Amendment does
not change, modify or deprive the States of their full power as to
suffrage except, of course, as to the subject with which the
Amendment deals and to the extent that obedience to its command is
necessary. Thus, the authority over suffrage which the States
possess and the limitation which the Amendment imposes are
coordinate, and one may not destroy the other without bringing
about the destruction of both.

															(c) While, in the true sense, therefore, the Amendment Page 238 U. S. 363 gives no right of suffrage, it was long ago recognized that, in
operation, its prohibition might measurably have that effect; that
is to say, that, as the command of the Amendment was self-executing
and reached without legislative action the conditions of
discrimination against which it was aimed, the result might arise
that as a consequence of the striking down of a discriminating
clause a right of suffrage would be enjoyed by reason of the
generic character of the provision which would remain after the
discrimination was stricken out. Ex parte Yarbrough, 110 U. S. 651 ; Neal v. Delaware, 103 U. S. 370 . A
familiar illustration of this doctrine resulted from the effect of
the adoption of the Amendment on state constitutions in which, at
the time of the adoption of the Amendment, the right of suffrage
was conferred on all white male citizens, since, by the inherent
power of the Amendment, the word white disappeared, and therefore
all male citizens, without discrimination on account of race, color
or previous condition of servitude, came under the generic grant of
suffrage made by the State.

															With these principles before us, how can there be room for any
serious dispute concerning the repugnancy of the standard based
upon January 1, 1866 (a date which preceded the adoption of the
Fifteenth Amendment), if the suffrage provision fixing that
standard is susceptible of the significance which the Government
attributes to it? Indeed, there seems no escape from the conclusion
that to hold that there was even possibility for dispute on the
subject would be but to declare that the Fifteenth Amendment not
only had not the self-executing power which it has been recognized
to have from the beginning, but that its provisions were wholly
inoperative, because susceptible of being rendered inapplicable by
mere forms of expression embodying no exercise of judgment and
resting upon no discernible reason other than the purpose to
disregard the prohibitions of the Amendment by creating a standard
of Page 238 U. S. 364 voting which on its face was, in substance, but a revitalization
of conditions which, when they prevailed in the past, had been
destroyed by the self-operative force of the Amendment.

															2. The standard of January 1, 1866, fixed in the suffrage
amendment and its significance. The inquiry, of course, here is, does the amendment as to the
particular standard which this heading embraces involve the mere
refusal to comply with the commands of the Fifteenth Amendment as
previously stated? This leads us for the purpose of the analysis to
recur to the text of the suffrage amendment. Its opening sentence
fixes the literacy standard, which is all-inclusive, since it is
general in its expression and contains no word of discrimination on
account of race or color or any other reason. This, however, is
immediately followed by the provisions creating the standard based
upon the condition existing on January 1, 1866, and carving out
those coming under that standard from the inclusion in the literacy
test which would have controlled them but for the exclusion thus
expressly provided for. The provision is this:

															"But no person who was, on January 1, 1866, or at any time prior
thereto, entitled to vote under any form of government, or who at
that time resided in some foreign nation, and no lineal descendant
of such person, shall be denied the right to register and vote
because of his inability to so read and write sections of such
constitution."

															We have difficulty in finding words to more clearly demonstrate
the conviction we entertain that this standard has the
characteristics which the Government attributes to it than does the
mere statement of the text. It is true it contains no express words
of an exclusion from the standard which it establishes of any
person on account of race, color, or previous condition of
servitude prohibited by the Fifteenth Amendment, but the standard
itself inherently brings that result into existence, since it is
based Page 238 U. S. 365 purely upon a period of time before the enactment of the
Fifteenth Amendment, and makes that period the controlling and
dominant test of the right of suffrage. In other words, we seek in
vain for any ground which would sustain any other interpretation
but that the provision, recurring to the conditions existing before
the Fifteenth Amendment was adopted and the continuance of which
the Fifteenth Amendment prohibited, proposed by, in substance and
effect, lifting those conditions over to a period of time after the
Amendment to make them the basis of the right to suffrage conferred
in direct and positive disregard of the Fifteenth Amendment. And
the same result, we are of opinion, is demonstrated by considering
whether it is possible to discover any basis of reason for the
standard thus fixed other than the purpose above stated. We say
this because we are unable to discover how, unless the prohibitions
of the Fifteenth Amendment were considered, the slightest reason
was afforded for basing the classification upon a period of time
prior to the Fifteenth Amendment. Certainly it cannot be said that
there was any peculiar necromancy in the time named which
engendered attributes affecting the qualification to vote which
would not exist at another and different period unless the
Fifteenth Amendment was in view.

															While these considerations establish that the standard fixed on
the basis of the 1866 test is void, they do not enable us to reply
even to the first question asked by the court below, since, to do
so, we must consider the literacy standard established by the
suffrage amendment and the possibility of its surviving the
determination of the fact that the 1866 standard never took life,
since it was void from the beginning because of the operation upon
it of the prohibitions of the Fifteenth Amendment. And this brings
us to the last heading:

															3. The determination of the validity of the literacy test
and the possibility of its surviving the disappearance of the
1866 Page 238 U. S. 366 standard with which it is associated in the suffrage
amendment. No time need be spent on the question of the validity of the
literacy test, considered alone, since, as we have seen, its
establishment was but the exercise by the State of a lawful power
vested in it not subject to our supervision, and, indeed, its
validity is admitted. Whether this test is so connected with the
other one relating to the situation on January 1, 1866, that the
invalidity of the latter requires the rejection of the former, is
really a question of state law, but, in the absence of any decision
on the subject by the Supreme Court of the State, we must determine
it for ourselves. We are of opinion that neither forms of
classification nor methods of enumeration should be made the basis
of striking down a provision which was independently legal, and
therefore was lawfully enacted because of the removal of an illegal
provision with which the legal provision or provisions may have
been associated. We state what we hold to be the rule thus strongly
because we are of opinion that, on a subject like the one under
consideration, involving the establishment of a right whose
exercise lies at the very basis of government, a much more exacting
standard is required than would ordinarily obtain where the
influence of the declared unconstitutionality of one provision of a
statute upon another and constitutional provision is required to be
fixed. Of course, rigorous as is this rule and imperative as is the
duty not to violate it, it does not mean that it applies in a case
where it expressly appears that a contrary conclusion must be
reached if the plain letter and necessary intendment of the
provision under consideration so compels, or where such a result is
rendered necessary because to follow the contrary course would give
rise to such an extreme and anomalous situation as would cause it
to be impossible to conclude that it could have been upon any
hypothesis whatever within the mind of the lawmaking power. Page 238 U. S. 367 Does the general rule here govern, or is the case controlled by
one or the other of the exceptional conditions which we have just
stated, is then the remaining question to be decided. Coming to
solve it, we are of opinion that, by a consideration of the text of
the suffrage amendment insofar as it deals with the literacy test,
and to the extent that it creates the standard based upon
conditions existing on January 1, 1866, the case is taken out of
the general rule and brought under the first of the exceptions
stated. We say this because, in our opinion, the very language of
the suffrage amendment expresses, not by implication nor by forms
of classification nor by the order in which they are made, but by
direct and positive language, the command that the persons embraced
in the 1866 standard should not be under any conditions subjected
to the literacy test, a command which would be virtually set at
naught if on the obliteration of the one standard by the force of
the Fifteenth Amendment the other standard should be held to
continue in force.

															The reasons previously stated dispose of the case and make it
plain that it is our duty to answer the first question No, and the
second Yes; but before we direct the entry of an order to that
effect, we come briefly to dispose of an issue the consideration of
which we have hitherto postponed from a desire not to break the
continuity of discussion as to the general and important subject
before us.

															In various forms of statement not challenging the instructions
given by the trial court, concretely considered, concerning the
liability of the election officers for their official conduct, it
is insisted that as, in connection with the instructions, the jury
was charged that the suffrage amendment was unconstitutional
because of its repugnancy to the Fifteenth Amendment, therefore,
taken as a whole, the charge was erroneous. But we are of opinion
that this contention is without merit, especially in view Page 238 U. S. 368 of the doctrine long since settled concerning the self-executing
power of the Fifteenth Amendment, and of what we have held to be
the nature and character of the suffrage amendment in question. The
contention concerning the inapplicability of § 5508, Rev.Stat., now
§ 19 of the Penal Code, or of its repeal by implication, is fully
answered by the ruling this day made in United States v.
Mosley, No. 180, post, p. 238 U. S. 383 .

															We answer the first question, No, and the second question,
Yes. And it will be so certified. MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.


U.S. Supreme Court Gomillion v. Lightfoot, 364
U.S. 339 (1960) Gomillion v.
Lightfoot No. 32 Argued October 18-19,
1960 Decided November 14,
1960 364
U.S. 339 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus Negro citizens sued in a Federal District Court in Alabama for a
declaratory judgment that an Act of the State Legislature changing
the boundaries of the City of Tuskegee is unconstitutional and for
an injunction against its enforcement. They alleged that the Act
alters the shape of Tuskegee from a square to an irregular 28-sided
figure; that it would eliminate from the City all but four or five
of its 400 Negro voters without eliminating any white voter; and
that its effect was to deprive Negroes of their right to vote in
Tuskegee elections on account of their race. The District Court
dismissed the complaint on the ground that it had no authority to
declare the Act invalid or to change any boundaries of municipal
corporations fixed by the State Legislature. Held: It erred in doing so, since the allegations, if
proven, would establish that the inevitable effect of the Act would
be to deprive Negroes of their right to vote on account of their
race, contrary to the Fifteenth Amendment. Pp. 364 U. S.
340 -348.

															(a) Even the broad power of a State to fix the boundaries of its
municipalities is limited by the Fifteenth Amendment, which forbids
a State to deprive any citizen of the right to vote because of his
race. Hunter v. Pittsburgh, 207 U.
S. 161 , and related cases distinguished. Pp. 364 U. S.
342 -345.

															(b) A state statute which is alleged to have the inevitable
effect of depriving Negroes of their right to vote in Tuskegee
because of their race is not immune to attack simply because the
mechanism employed by the Legislature is a "political" redefinition
of municipal boundaries. Colegrove v. Green, 328 U.
S. 549 , distinguished. Pp. 364 U. S.
346 -348.

															270 F.2d 594, reversed. Page 364 U. S. 340 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

															This litigation challenges the validity, under the United States
Constitution, of Local Act No. 140, passed by the Legislature of
Alabama in 1957, redefining the boundaries of the City of Tuskegee.
Petitioners, Negro citizens of Alabama who were, at the time of
this redistricting measure, residents of the City of Tuskegee,
brought an action in the United States District Court for the
Middle District of Alabama for a declaratory judgment that Act 140
is unconstitutional, and for an injunction to restrain the Mayor
and officers of Tuskegee and the officials of Macon County,
Alabama, from enforcing the Act against them and other Negroes
similarly situated. Petitioners' claim is that enforcement of the
statute, which alters the shape of Tuskegee from a square to an
uncouth twenty-eight-sided figure, will constitute a discrimination
against them in violation of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment to the Constitution and will
deny them the right to vote in defiance of the Fifteenth
Amendment.

															The respondents moved for dismissal of the action for failure to
state a claim upon which relief could be granted and for lack of
jurisdiction of the District Court. The court granted the motion,
stating,

															"This Court has no control over, no supervision over, and no
power to change any boundaries of municipal corporations fixed by a
duly Page 364 U. S. 341 convened and elected legislative body, acting for the people in
the State of Alabama." 167 F.
Supp. 405 , 410. On appeal, the Court of Appeals for the Fifth
Circuit, affirmed the judgment, one judge dissenting. 270 F.2d 594.
We brought the case here, since serious questions were raised
concerning the power of a State over its municipalities in relation
to the Fourteenth and Fifteenth Amendments. 362 U.S. 916.

															At this stage of the litigation, we are not concerned with the
truth of the allegations, that is, the ability of petitioners to
sustain their allegations by proof. The sole question is whether
the allegations entitle them to make good on their claim that they
are being denied rights under the United States Constitution. The
complaint, charging that Act 140 is a device to disenfranchise
Negro citizens, alleges the following facts: prior to Act 140, the
City of Tuskegee was square in shape; the Act transformed it into a
strangely irregular twenty-eight-sided figure as indicated in the 364
U.S. 339 app|>diagram appended to this opinion. The essential
inevitable effect of this redefinition of Tuskegee's boundaries is
to remove from the city all save four or five of its 400 Negro
voters while not removing a single white voter or resident. The
result of the Act is to deprive the Negro petitioners
discriminatorily of the benefits of residence in Tuskegee,
including, inter alia, the right to vote in municipal
elections.

															These allegations, if proven, would abundantly establish that
Act 140 was not an ordinary geographic redistricting measure, even
within familiar abuses of gerrymandering. If these allegations,
upon a trial, remained uncontradicted or unqualified, the
conclusion would be irresistible, tantamount for all practical
purposes to a mathematical demonstration, that the legislation is
solely concerned with segregating white and colored voters by
fencing Negro citizens out of town so as to deprive them of their
pre-existing municipal vote. Page 364 U. S. 342 It is difficult to appreciate what stands in the way of
adjudging a statute having this inevitable effect invalid in light
of the principles by which this Court must judge, and uniformly has
judged, statutes that, howsoever speciously defined, obviously
discriminate against colored citizens. "The [Fifteenth] Amendment
nullifies sophisticated as well as simple-minded modes of
discrimination." Lane v. Wilson, 307 U.
S. 268 , 307 U. S.
275 .

															The complaint amply alleges a claim of racial discrimination.
Against this claim the respondents have never suggested, either in
their brief or in oral argument, any countervailing municipal
function which Act 140 is designed to serve. The respondents invoke
generalities expressing the State's unrestricted power --
unlimited, that is, by the United States Constitution -- to
establish, destroy, or reorganize by contraction or expansion its
political subdivisions, to-wit, cities, counties, and other local
units. We freely recognize the breadth and importance of this
aspect of the State's political power. To exalt this power into an
absolute is to misconceive the reach and rule of this Court's
decisions in the leading case of Hunter v. Pittsburgh, 207 U. S. 161 , and
related cases relied upon by respondents.

															The Hunter case involved a claim by citizens of
Allegheny, Pennsylvania, that the General Assembly of that State
could not direct a consolidation of their city and Pittsburgh over
the objection of a majority of the Allegheny voters. It was alleged
that, while Allegheny already had made numerous civic improvements,
Pittsburgh was only then planning to undertake such improvements,
and that the annexation would therefore greatly increase the tax
burden on Allegheny residents. All that the case held was (1) that
there is no implied contract between a city and its residents that
their taxes will be spent solely for the benefit of that city, and
(2) that a citizen of one municipality is not deprived Page 364 U. S. 343 of property without due process of law by being subjected to
increased tax burdens as a result of the consolidation of his city
with another. Related cases upon which the respondents also rely,
such as Trenton v. New Jersey, 262 U.
S. 182 ; Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394 , and Laramie County v. Albany County, 92 U. S.
307 , are far off the mark. They are authority only for
the principle that no constitutionally protected contractual
obligation arises between a State and its subordinate governmental
entities solely as a result of their relationship.

															In short, the cases that have come before this Court regarding
legislation by States dealing with their political subdivisions
fall into two classes: (1) those in which it is claimed that the
State, by virtue of the prohibition against impairment of the
obligation of contract (Art. I, § 10) and of the Due Process Clause
of the Fourteenth Amendment, is without power to extinguish, or
alter the boundaries of, an existing municipality; and (2) in which
it is claimed that the State has no power to change the identity of
a municipality whereby citizens of a preexisting municipality
suffer serious economic disadvantage.

															Neither of these claims is supported by such a specific
limitation upon State power as confines the States under the
Fifteenth Amendment. As to the first category, it is obvious that
the creation of municipalities -- clearly a political act -- does
not come within the conception of a contract under the Dartmouth College
Case , 4 Wheat. 518. As to the second, if one
principle clearly emerges from the numerous decisions of this Court
dealing with taxation, it is that the Due Process Clause affords no
immunity against mere inequalities in tax burdens, nor does it
afford protection against their increase as an indirect consequence
of a State's exercise of its political powers.

															Particularly in dealing with claims under broad provisions of
the Constitution, which derive content by an Page 364 U. S. 344 interpretive process of inclusion and exclusion, it is
imperative that generalizations, based on and qualified by the
concrete situations that gave rise to them, must not be applied out
of context in disregard of variant controlling facts. Thus, a
correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary
power to manipulate in every conceivable way, for every conceivable
purpose, the affairs of its municipal corporations, but rather that
the State's authority is unrestrained by the particular
prohibitions of the Constitution considered in those cases.

															The Hunter opinion itself intimates that a state
legislature may not be omnipotent even as to the disposition of
some types of property owned by municipal corporations, 207 U.S. at 207 U. S.
178 -181. Further, other cases in this Court have refused
to allow a State to abolish a municipality, or alter its
boundaries, or merge it with another city, without preserving to
the creditors of the old city some effective recourse for the
collection of debts owed them. Shapleigh v. San Angelo, 167 U. S. 646 ; Mobile v. Watson, 116 U. S. 289 ; Mount Pleasant v. Beckwith, 100 U.
S. 514 ; Broughton v. Pensacola, 93 U. S.
266 . For example, in Mobile v. Watson, the
Court said:

															"Where the resource for the payment of the bonds of a municipal
corporation is the power of taxation existing when the bonds were
issued, any law which withdraws or limits the taxing power, and
leaves no adequate means for the payment of the bonds, is forbidden
by the constitution of the United States, and is null and
void." Mobile v. Watson, supra, at 116 U. S.
305 .

															This line of authority conclusively shows that the Court has
never acknowledged that the States have power to do as they will
with municipal corporations regardless of consequences. Legislative
control of municipalities, no less than other state power, lies
within the scope of relevant Page 364 U. S. 345 limitations imposed by the United States Constitution. The
observation in Graham v. Folsom, 200 U.
S. 248 , 200 U. S. 253 ,
becomes relevant: "The power of the state to alter or destroy its
corporations is not greater than the power of the state to repeal
its legislation." In that case, which involved the attempt by state
officials to evade the collection of taxes to discharge the
obligations of an extinguished township, Mr. Justice McKenna,
writing for the Court, went on to point out, with reference to the Mount Pleasant and Mobile cases:

															"It was argued in those cases, as it is argued in this, that
such alteration or destruction of the subordinate governmental
divisions was a proper exercise of legislative power, to which
creditors had to submit. The argument did not prevail. It was
answered, as we now answer it, that such power, extensive though it
is, is met and overcome by the provision of the Constitution of the
United States which forbids a state from passing any law impairing
the obligation of contracts. . . ."

															200 U.S. at 200 U. S.
253 -254.

															If all this is so in regard to the constitutional protection of
contracts, it should be equally true that, to paraphrase, such
power, extensive though it is, is met and overcome by the Fifteenth
Amendment to the Constitution of the United States, which forbids a
State from passing any law which deprives a citizen of his vote
because of his race. The opposite conclusion, urged upon us by
respondents, would sanction the achievement by a State of any
impairment of voting rights whatever, so long as it was cloaked in
the garb of the realignment of political subdivisions. "It is
inconceivable that guaranties embedded in the Constitution of the
United States may thus be manipulated out of existence." Frost
& Frost Trucking Co. v. Railroad Commission of California, 271 U. S. 583 , 271 U. S.
594 . Page 364 U. S. 346 The respondents find another barrier to the trial of this case
in Colegrove v. Green, 328 U. S. 549 . In
that case, the Court passed on an Illinois law governing the
arrangement of congressional districts within that State. The
complaint rested upon the disparity of population between the
different districts which rendered the effectiveness of each
individual's vote in some districts far less than in others. This
disparity came to pass solely through shifts in population between
1901, when Illinois organized its congressional districts, and
1946, when the complaint was lodged. During this entire period,
elections were held under the districting scheme devised in 1901.
The Court affirmed the dismissal of the complaint on the ground
that it presented a subject not meet for adjudication. * The decisive
facts in this case, which at this stage must be taken as proved,
are wholly different from the considerations found controlling in
Colegrove.

															That case involved a complaint of discriminatory apportionment
of congressional districts. The appellants in Colegrove complained only of a dilution of the strength of their votes as a
result of legislative inaction over a course of many years. The
petitioners here complain that affirmative legislative action
deprives them of their votes and the consequent advantages that the
ballot affords. When a legislature thus singles out a readily
isolated segment of a racial minority for special discriminatory
treatment, it violates the Fifteenth Amendment. In no case
involving unequal weight in voting distribution that has come
before the Court did the decision sanction a differentiation on
racial lines whereby approval was given to unequivocal withdrawal
of the vote solely from colored citizens. Apart from all else,
these considerations lift this Page 364 U. S. 347 controversy out of the so-called "political" arena and into the
conventional sphere of constitutional litigation.

															In sum, as Mr. Justice Holmes remarked when dealing with a
related situation in Nixon v. Herndon, 273 U.
S. 536 , 273 U. S. 540 ,
"Of course the petition concerns political action," but "[t]he
objection that the subject matter of the suit is political is
little more than a play upon words." A statute which is alleged to
have worked unconstitutional deprivations of petitioners' rights is
not immune to attack simply because the mechanism employed by the
legislature is a redefinition of municipal boundaries. According to
the allegations here made, the Alabama Legislature has not merely
redrawn the Tuskegee city limits with incidental inconvenience to
the petitioners; it is more accurate to say that it has deprived
the petitioners of the municipal franchise and consequent rights,
and, to that end, it has incidentally changed the city's
boundaries. While in form this is merely an act redefining metes
and bounds, if the allegations are established, the inescapable
human effect of this essay in geometry and geography is to despoil
colored citizens, and only colored citizens, of their theretofore
enjoyed voting rights. That was no Colegrove v. Green. When a State exercises power wholly within the domain of state
interest, it is insulated from federal judicial review. But such
insulation is not carried over when state power is used as an
instrument for circumventing a federally protected right. This
principle has had many applications. It has long been recognized in
cases which have prohibited a State from exploiting a power
acknowledged to be absolute in an isolated context to justify the
imposition of an "unconstitutional condition." What the Court has
said in those cases is equally applicable here, viz., that

															"Acts generally lawful may become unlawful when done to
accomplish an unlawful end, United States v. Reading Co., 226 U. S.
324 , 226 U. S. 357 , and a
constitutional power cannot be used by way of condition to attain
an Page 364 U. S. 348 unconstitutional result." Western Union Telegraph Co. v. Foster, 247 U.
S. 105 , 247 U. S. 114 .
The petitioners are entitled to prove their allegations at
trial.

															For these reasons, the principal conclusions of the District
Court and the Court of Appeals are clearly erroneous, and the
decision below must be reversed. Reversed. MR. JUSTICE DOUGLAS, while joining the opinion of the Court,
adheres to the dissents in Colegrove v. Green, 328 U. S. 549 , and South v. Peters, 339 U. S. 276 .

															* Soon after the decision in the Colegrove case,
Governor Dwight H. Green of Illinois, in his 1947 biennial message
to the legislature, recommended a reapportionment. The legislature
immediately responded, Ill.Sess.Laws 1947, p. 879, and, in 1951,
redistricted again. Ill.Sess.Laws 1951, p. 1924.

															| 364
U.S. 339 app| Page 364 U. S. 349 APPENDIX TO OPINION OF THE COURT. CHART SHOWING TUSKEGGEE, ALABAMA, BEFORE AND AFTER ACT 140 image:a

															(The entire area of the square comprised of the City prior to
Act 140. The irregular black-bordered figure within the square
represents the post-enactment city.)

															MR. JUSTICE WHITTAKER, concurring.

															I concur in the Court's judgment, but not in the whole of its
opinion. It seems to me that the decision should be rested not on
the Fifteenth Amendment, but rather on the Equal Protection Clause
of the Fourteenth Amendment to the Constitution. I am doubtful that
the averments of the complaint, taken for present purposes to be
true, show a purpose by Act No. 140 to abridge petitioners' "right
. . . to vote" in the Fifteenth Amendment sense. It seems to me
that the "right . . . to vote" that is guaranteed by the Fifteenth
Amendment is but the same right to vote as is enjoyed by all others
within the same election precinct, ward or other political
division. And, inasmuch as no one has the right to vote in a
political division, or in a local election concerning only an area
in which he does not reside, it would seem to follow that one's
right to vote in Division A is not abridged by a redistricting that
places his residence in Division B if he there enjoys the same
voting privileges as all others in that Division, even though the
redistricting was done by the State for the purpose of placing a
racial group of citizens in Division B, rather than A.

															But it does seem clear to me that accomplishment of a State's
purpose -- to use the Court's phrase -- of "fencing Negro citizens
out of" Division A and into Division B is an unlawful segregation
of races of citizens, in violation of the Equal Protection Clause
of the Fourteenth Amendment, Brown v. Board of Education, 347 U. S. 483 ; Cooper v. Aaron, 358 U. S. 1 , and, as
stated, I would think the decision should be rested on that ground
-- which, incidentally, clearly would not involve, just as the
cited cases did not involve, the Colegrove problem.


U.S. Supreme Court Smith v. Allwright, 321
U.S. 649 (1944) Smith v. Allwright No. 51 Argued November 10, 12,
1943 Reargued January 12,
1944 Decided April 3, 1944 321
U.S. 649 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH
CIRCUIT Syllabus 1. The right of a citizen of the United States to vote for the
nomination of candidates for the United States Senate and House of
Representatives in a primary which is an integral part of the
elective process is a right secured by the Federal Constitution,
and this right of the citizen may not be abridged by the State on
account of his race or color. P. 321 U. S.
661 .

															2. Whether the exclusion of citizens from voting on account of
their race or color has been effected by action of the State --
rather than of individuals or of a political party -- is a question
upon which the decision of the courts of the State is not binding
on the federal courts, but which the latter must determine for
themselves. P. 321 U. S.
662 .

															3. Upon examination of the statutes of Texas regulating
primaries, held: that the exclusion of Negroes from voting
in a Democratic primary to select nominees for a general election
-- although, by resolution of a state convention of the party, its
membership was limited to white citizens -- was State action in
violation of the Fifteenth Amendment. Grove v. Townsend, 295 U. S. 45 ,
overruled. Pp. 321 U. S. 663 , 321 U. S.
666 .

															When, as here, primaries become a part of the machinery for
choosing officials, state and federal, the same tests to
determine Page 321 U. S. 650 the character of discrimination or abridgment should be applied
to the primary as are applied to the general election. P. 321 U. S.
664 .

															4. While not unmindful of the desirability of its adhering to
former decisions of constitutional questions, this Court is not
constrained to follow a previous decision which, upon
reexamination, is believed erroneous, particularly one which
involves the application of a constitutional principle, rather than
an interpretation of the Constitution to evolve the principle
itself. P. 321 U. S.
665 .

															131 F.2d 593, reversed.

															Certiorari, 319 U.S. 738, to review the affirmance of a judgment
for the defendants in a suit for damages under 8 U.S.C. § 43.

															MR. JUSTICE REED delivered the opinion of the Court.

															This writ of certiorari brings here for review a claim for
damages in the sum of $5,000 on the part of petitioner, a Negro
citizen of the 48th precinct of Harris County, Texas, Page 321 U. S. 651 for the refusal of respondents, election and associate election
judges, respectively, of that precinct, to give petitioner a ballot
or to permit him to cast a ballot in the primary election of July
27, 1940, for the nomination of Democratic candidates for the
United States Senate and House of Representatives, and Governor and
other state officers. The refusal is alleged to have been solely
because of the race and color of the proposed voter.

															The actions of respondents are said to violate §§ 31 and 43 of
Title 8 [ Footnote 1 ] of the
United States Code, 8 U.S.C. §§ 31 and 43, in that petitioner was
deprived of rights secured by §§ 2 and 4 of Article I [ Footnote 2 ] and the Fourteenth,
Fifteenth and Seventeenth Amendments Page 321 U. S. 652 to the United States Constitution. [ Footnote 3 ] The suit was filed in the District Court of
the United States for the Southern District of Texas, which had
jurisdiction under Judicial Code § 24, subsection 14. [ Footnote 4 ]

															The District Court denied the relief sought, and the Circuit
Court of Appeals quite properly affirmed its action on the
authority of Grovey v. Townsend, 295 U. S.
45 . [ Footnote 5 ] We
granted the petition for certiorari to resolve a claimed
inconsistency between the decision in the Grovey case and
that of United States v. Classic, 313 U.
S. 299 . 319 U.S. 738.

															The State of Texas by its Constitution and statutes provides
that every person, if certain other requirements are met which are
not here in issue, qualified by residence Page 321 U. S. 653 in the district or county "shall be deemed a qualified elector."
Constitution of Texas, Article VI, § 2; Vernon's Civil Statutes
(1939 ed.), Article 2955. Primary elections for United States
Senators, Congressmen and state officers are provided for by
Chapters Twelve and Thirteen of the statutes. Under these chapters,
the Democratic Party was required to hold the primary which was the
occasion of the alleged wrong to petitioner. A summary of the state
statutes regulating primaries appears in the footnote. [ Footnote 6 ] These nominations are to be
made by the qualified voters of the party. Art. 3101. Page 321 U. S. 654 The Democratic Party of Texas is held by the Supreme Court of
that state to be a "voluntary association," Bell v. Hill, 123 Tex. 531, 534, protected by § 27 of the Bill of Rights, Art. 1,
Constitution of Texas, from interference by the state except
that:

															"In the interest of fair methods and a fair expression by their
members of their preferences in the selection of their Page 321 U. S. 655 nominees, the State may regulate such elections by proper
laws."

															P. 545. That court stated further:

															"Since the right to organize and maintain a political party is
one guaranteed by the Bill of Rights of this state, it necessarily
follows that every privilege essential or reasonably appropriate to
the exercise of that right is likewise Page 321 U. S. 656 guaranteed, including, of course, the privilege of determining
the policies of the party and its membership. Without the privilege
of determining the policy of a political association and its
membership, the right to organize such an association would be a
mere mockery. We think these rights, that is, the right to
determine the membership of a political party and to determine its
policies, of necessity are to be exercised by the State Convention
of such party, and cannot, under any circumstances, be conferred
upon a state or governmental agency."

															P. 546. Cf. Waples v. Marrast, 108 Tex. 5, 184 S.W.
180.

															The Democratic party, on May 24, 1932, in a state convention
adopted the following resolution, which has not since been
"amended, abrogated, annulled or avoided":

															"Be it resolved that all white citizens of the State of Texas
who are qualified to vote under the Constitution and laws of the
State shall be eligible to membership in the Page 321 U. S. 657 Democratic party and, as such, entitled to participate in its
deliberations."

															It was by virtue of this resolution that the respondents refused
to permit the petitioner to vote.

															Texas is free to conduct her elections and limit her electorate
as she may deem wise, save only as her action may be affected by
the prohibitions of the United States Constitution or in conflict
with powers delegated to and exercised by the National Government.
[ Footnote 7 ] The Fourteenth
Amendment forbids a state from making or enforcing any law which
abridges the privileges or immunities of citizens of the United
States and the Fifteenth Amendment specifically interdicts any
denial or abridgement by a state of the right of citizens to vote
on account of color. Respondents appeared in the District Court and
the Circuit Court of Appeals and defended on the ground that the
Democratic party of Texas is a voluntary organization, with members
banded together for the purpose of selecting individuals of the
group representing the common political beliefs as candidates in
the general election. As such a voluntary organization, it was
claimed, the Democratic party is free to select its own membership
and limit to whites participation in the party primary. Such
action, the answer asserted, does not violate the Fourteenth,
Fifteenth or Seventeenth Amendment, as officers of government
cannot be chosen at primaries, and the Amendments are applicable
only to general elections, where governmental officers are actually
elected. Primaries, it is said, are political party affairs,
handled by party, not governmental, officers. No appearance for
respondents is made in this Court. Arguments presented here by the
Attorney General of Texas and the Chairman of the State Democratic
Executive Committee of Texas, as amici Page 321 U. S. 658 curiae, urged substantially the same grounds as those
advanced by the respondents.

															The right of a Negro to vote in the Texas primary has been
considered heretofore by this Court. The first case was Nixon
v. Herndon, 273 U. S. 536 . At
that time, 1924, the Texas statute, Art. 3093a, afterwards numbered
Art. 3107 (Rev.Stat.1925) declared "in no event shall a Negro be
eligible to participate in a Democratic party primary election . .
. in the State of Texas." Nixon was refused the right to vote in a
Democratic primary, and brought a suit for damages against the
election officers under R.S. § 1979 and 2004, the present §§ 43 and
31 of Title 8, U.S.C., respectively. It was urged to this Court
that the denial of the franchise the Nixon violated his
Constitutional rights under the Fourteenth and Fifteenth
Amendments. Without consideration of the Fifteenth, this Court held
that the action of Texas in denying the ballot to Negroes by
statute was in violation of the equal protection clause of the
Fourteenth Amendment, and reversed the dismissal of the suit.

															The legislature of Texas reenacted the article, but gave the
State Executive Committee of a party the power to prescribe the
qualifications of its members for voting or other participation.
This article remains in the statutes. The State Executive Committee
of the Democratic party adopted a resolution that white Democrats
and none other might participate in the primaries of that party.
Nixon was refused again the privilege of voting in a primary, and
again brought suit for damages by virtue of § 31, Title 8 U.S.C.
This Court again reversed the dismissal of the suit for the reason
that the Committee action was deemed to be State action, and
invalid as discriminatory under the Fourteenth Amendment. The test
was said to be whether the Committee operated as representative of
the State in the discharge of the State's authority. Nixon v.
Condon, 286 U. S. 73 . The
question of the inherent power Page 321 U. S. 659 of a political party in Texas "without restraint by any law to
determine its own membership" was lift open. Id., 286 U. S.
84 -85.

															In Grovey v. Townsend, 295 U. S.
45 , this Court had before it another suit for damages
for the refusal in a primary of a county clerk, a Texas officer
with only public functions to perform, to furnish petitioner, a
Negro, an absentee ballot. The refusal was solely on the ground of
race. This case differed from Nixon v. Condon, supra, in
that a state convention of the Democratic party had passed the
resolution of May 24, 1932, hereinbefore quoted. It was decided
that the determination by the state convention of the membership of
the Democratic party made a significant change from a determination
by the Executive Committee. The former was party action, voluntary
in character. The latter, as had been held in the Condon case, was action by authority of the State. The managers of the
primary election were therefore declared not to be state officials
in such sense that their action was state action. A state
convention of a party was said not to be an organ of the state.
This Court went on to announce that to deny a vote in a primary was
a mere refusal of party membership, with which "the state need have
no concern," loc.cit. 295 U. S. 55 ,
while for a state to deny a vote in a general election on the
ground of race or color violated the Constitution. Consequently,
there was found no ground for holding that the county clerk's
refusal of a ballot because of racial ineligibility for party
membership denied the petitioner any right under the Fourteenth or
Fifteenth Amendments.

															Since Grovey v. Townsend and prior to the present suit,
no case from Texas involving primary elections has been before this
Court. We did decide, however, United States v. Classic, 313 U. S. 299 . We
there held that § 4 of Article I of the Constitution authorized
Congress to regulate primary, as well as general, elections, 313
U.S. at 313 U. S. 316 , 313 U. S.
317 , Page 321 U. S. 660 "where the primary is by law made an integral part of the
election machinery." 313 U.S. at 313 U. S.
318 =. Consequently, in the Classic case, we
upheld the applicability to frauds in a Louisiana primary of §§ 19
and 20 of the Criminal Code. Thereby, corrupt acts of election
officers were subjected to Congressional sanctions because that
body had power to protect rights of Federal suffrage secured by the
Constitution in primary as in general elections. 313 U.S. at 313 U. S. 323 .
This decision depended, too, on the determination that, under the
Louisiana statutes, the primary was a part of the procedure for
choice of Federal officials. By this decision, the doubt as to
whether or not such primaries were a part of "elections" subject to
Federal control, which had remained unanswered since Newberry
v. United States, 256 U. S. 232 , was
erased. The Nixon cases were decided under the equal
protection clause of the Fourteenth Amendment without a
determination of the status of the primary as a part of the
electoral process. The exclusion of Negroes from the primaries by
action of the State was held invalid under that Amendment. The
fusing by the Classic case of the primary and general
elections into a single instrumentality for choice of officers has
a definite bearing on the permissibility under the Constitution of
excluding Negroes from primaries. This is not to say that the Classic case cuts directly into the rationale of Grovey v. Townsend. This latter case was not mentioned in
the opinion. Classic bears upon Grovey v.
Townsend not because exclusion of Negroes from primaries is
any more or less state action by reason of the unitary character of
the electoral process, but because the recognition of the place of
the primary in the electoral scheme makes clear that state
delegation to a party of the power to fix the qualifications of
primary elections is delegation of a state function that may make
the party's action the action of the state. When Grovey v.
Townsend was written, the Court looked upon the denial of a
vote in a primary as a Page 321 U. S. 661 mere refusal by a party of party membership. 295 U.S. at 295 U. S. 55 . As
the Louisiana statutes for holding primaries are similar to those
of Texas, our ruling in Classic as to the unitary
character of the electoral process calls for a reexamination as to
whether or not the exclusion of Negroes from a Texas party primary
was state action.

															The statutes of Texas relating to primaries and the resolution
of the Democratic party of Texas extending the privileges of
membership to white citizens only are the same in substance and
effect today as they were when Grovey v. Townsend was
decided by a unanimous Court. The question as to whether the
exclusionary action of the party was the action of the State
persists as the determinative factor. In again entering upon
consideration of the inference to be drawn as to state action from
a substantially similar factual situation, it should be noted that Grovey v. Townsend upheld exclusion of Negroes from
primaries through the denial of party membership by a party
convention. A few years before, this Court refused approval of
exclusion by the State Executive Committee of the party. A
different result was reached on the theory that the Committee
action was state authorized, and the Convention action was
unfettered by statutory control. Such a variation in the result
from so slight a change in form influences us to consider anew the
legal validity of the distinction which has resulted in barring
Negroes from participating in the nominations of candidates of the
Democratic party in Texas. Other precedents of this Court forbid
the abridgement of the right to vote. United States v.
Reese, 92 U. S. 214 , 92 U. S. 217 ; Neal v. Delaware, 103 U. S. 370 , 103 U. S. 388 ; Guinn v. United States, 238 U. S. 347 , 238 U. S. 361 ; Myers v. Anderson, 238 U. S. 368 , 238 U. S. 379 ; Lane v. Wilson, 307 U. S. 268 .

															It may now be taken as a postulate that the right to vote in
such a primary for the nomination of candidates without
discrimination by the State, like the right to vote Page 321 U. S. 662 in a general election, is a right secured by the Constitution. United States v. Classic, 313 U.S. at 313 U. S. 314 ; Myers v. Anderson, 238 U. S. 368 ; Ex parte Yarbrough, 110 U. S. 651 , 110 U. S. 663 et seq. By the terms of the Fifteenth Amendment, that
right may not be abridged by any state on account of race. Under
our Constitution, the great privilege of the ballot may not be
denied a man by the State because of his color.

															We are thus brought to an examination of the qualifications for
Democratic primary electors in Texas, to determine whether state
action or private action has excluded Negroes from participation.
Despite Texas' decision that the exclusion is produced by private
or party action, Bell v. Hill, supra, Federal courts must
for themselves appraise the facts leading to that conclusion. It is
only by the performance of this obligation that a final and uniform
interpretation can be given to the Constitution, the "supreme Law
of the Land." Nixon v. Condon, 286 U. S.
73 , 286 U. S. 88 ; Standard Oil Co. v. Johnson, 316 U.
S. 481 , 316 U. S. 483 ; Bridges v. California, 314 U. S. 252 ; Lisenba v. California, 314 U. S. 219 , 314 U. S. 238 ; Union Pacific R. Co. v. United States, 313 U.
S. 450 , 313 U. S. 467 ; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 , 312 U. S. 294 ; Chambers v. Florida, 309 U. S. 227 , 309 U. S. 228 .
Texas requires electors in a primary to pay a poll tax. Every
person who does so pay and who has the qualifications of age and
residence is an acceptable voter for the primary. Art. 2955. As
appears above in the summary of the statutory provisions set out in note 6 Texas requires by the
law the election of the county officers of a party. These compose
the county executive committee. The county chairmen so selected are
members of the district executive committee and choose the chairman
for the district. Precinct primary election officers are named by
the county executive committee. Statutes provide for the election
by the voters of precinct Page 321 U. S. 663 delegates to the county convention of a party and the selection
of delegates to the district and state conventions by the county
convention. The state convention selects the state executive
committee. No convention may place in platform or resolution any
demand for specific legislation without endorsement of such
legislation by the voters in a primary. Texas thus directs the
selection of all party officers.

															Primary elections are conducted by the party under state
statutory authority. The county executive committee selects
precinct election officials and the county, district or state
executive committees, respectively, canvass the returns. These
party committees or the state convention certify the party's
candidates to the appropriate officers for inclusion on the
official ballot for the general election. No name which has not
been so certified may appear upon the ballot for the general
election as a candidate of a political party. No other name may be
printed on the ballot which has not been placed in nomination by
qualified voters who must take oath that they did not participate
in a primary for the selection of a candidate for the office for
which the nomination is made.

															The state courts are given exclusive original jurisdiction of
contested elections and of mandamus proceedings to compel party
officers to perform their statutory duties.

															We think that this statutory system for the selection of party
nominees for inclusion on the general election ballot makes the
party which is required to follow these legislative directions an
agency of the state in so far as it determines the participants in
a primary election. The party takes its character as a state agency
from the duties imposed upon it by state statutes; the duties do
not become matters of private law because they are performed by a
political party. The plan of the Texas primary follows
substantially that of Louisiana, with the exception that, in Page 321 U. S. 664 Louisiana, the state pays the cost of the primary, while Texas
assesses the cost against candidates. In numerous instances, the
Texas statutes fix or limit the fees to be charged. Whether paid
directly by the state or through state requirements, it is state
action which compels. When primaries become a part of the machinery
for choosing officials, state and national, as they have here, the
same tests to determine the character of discrimination or
abridgement should be applied to the primary as are applied to the
general election. If the state requires a certain electoral
procedure, prescribes a general election ballot made up of party
nominees so chosen and limits the choice of the electorate in
general elections for state offices, practically speaking, to those
whose names appear on such a ballot, it endorses, adopts and
enforces the discrimination against Negroes, practiced by a party
entrusted by Texas law with the determination of the qualifications
of participants in the primary. This is state action within the
meaning of the Fifteenth Amendment. Guinn v. United
States, 238 U. S. 347 , 238 U. S.
362 .

															The United States is a constitutional democracy. Its organic law
grants to all citizens a right to participate in the choice of
elected officials without restriction by any state because of race.
This grant to the people of the opportunity for choice 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. Constitutional rights would be of
little value if they could be thus indirectly denied. Lane v.
Wilson, 307 U. S. 268 , 307 U. S.
275 .

															The privilege of membership in a party may be, as this Court
said in Grovey v. Townsend, 295 U. S.
45 , 295 U. S. 55 , 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 Page 321 U. S. 665 of the party the action of the state. In reaching this
conclusion, we are not unmindful of the desirability of continuity
of decision in constitutional questions. [ Footnote 8 ] However, when convinced of former error,
this Court has never felt constrained to follow precedent. In
constitutional questions, where correction depends upon amendment,
and not upon legislative action, this Court throughout its history
has freely exercised its power to reexamine the basis of its
constitutional decisions. This has long been accepted practice,
[ Footnote 9 ] and this practice
has continued to this day. [ Footnote 10 ] This is particularly true when the decision
believed erroneous is the application of a constitutional
principle, rather Page 321 U. S. 666 than an interpretation of the Constitution to extract the
principle itself. [ Footnote
11 ] Here, we are applying, contrary to the recent decision in Grovey v. Townsend, the well established principle of the
Fifteenth Amendment, forbidding the abridgement by a state of a
citizen's right to vote. Grovey v. Townsend is
overruled. Judgment reversed. MR. JUSTICE FRANKFURTER concurs in the result.

															[ Footnote 1 ]

															8 U.S.C. § 31:

															"All citizens of the United States who are otherwise qualified
by law to vote at any election by the people in any State,
Territory, district, county, city, parish, township, school
district, 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."

															"§ 43:"

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."

															[ Footnote 2 ]

															Constitution, Art. I:

															"Section 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several
States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch
of the State Legislature."

															" * * * *" "Section 4. The Times, Places and Manner of holding Elections
for Senators and Representatives shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing
Senators."

															[ Footnote 3 ]

															Constitution:

															"Article XIV. Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process 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 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."

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

															"Article XVII. The Senate of the United States shall be composed
of two Senators from each state, elected by the people thereof, for
six years; and each Senator shall have one vote. The electors in
each state shall have the qualifications requisite for electors of
the most numerous branch of the state legislatures."

															[ Footnote 4 ]

															A declaratory judgment also was sought as to the
constitutionality of the denial of the ballot. The judgment entered
declared the denial was constitutional. This phase of the case is
not considered further, as the decision on the merits determines
the legality of the action of the respondents.

															[ Footnote 5 ] Smith v. Allwright, 131 F.2d 593.

															[ Footnote 6 ]

															The extent to which the state controls the primary election
machinery appears from the Texas statutes, as follows: Art. 3118,
Vernon's Texas Statutes, provides for the election of a county
chairman for each party holding a primary by the "qualified voters
of the whole county," and of one member of the party's county
executive committee by the "qualified voters of their respective
election precincts." These officers have direct charge of the
primary. There is, in addition, statutory provision for a party
convention: the voters in each precinct choose delegates to a
county convention, and the latter chooses delegates to a state
convention. Art. 3134. The state convention has authority to choose
the state executive committee and its chairman. Art. 3139, 1939
Supp. Candidates for offices to be filled by election are required
to be nominated at a primary election if the nominating party cast
over 100,000 votes at the preceding general election. Art. 3101.
The date of the primary is fixed at the fourth Saturday in July; a
majority is required for nomination, and if no candidate receives a
majority, a run-off primary between the two highest standing
candidates is held on the fourth Saturday in August. Art. 3102.
Polling places may not be within a hundred yards of those used by
the opposite party. Art. 3103. Each precinct primary is to be
conducted by a presiding judge and the assistants he names. These
officials are selected by the county executive committee. Art.
3104. Absentee voting machinery provided by the state for general
elections is also used in primaries. Art. 2956. The presiding
judges are given legal authority similar to that of judges at
general elections. Compare Art. 3105 with Art.
3002. The county executive committee may decide whether county
officers are to be nominated by majority or plurality vote. Art.
3106. The state executive committee is given power to fix
qualifications of party membership, Art. 3107; Art. 2955, 1942
Supp., requires payment of a poll tax by voters in primary
elections, and Art. 3093(3) deals with political qualifications of
candidates for nomination for United States Senator. But cf.
Bell v. Hill, 123 Tex. 531, 74 S.W.2d 113. Art. 3108 empowers
the county committee to prepare a budget covering the cost of the
primary and to require each candidate to pay a fair share. The form
of the ballot is prescribed by Art. 3109. Art. 3101 provides that
the nominations be made by the qualified voters of the party. Cf. Art. 3091. Art. 3110 prescribes a test for voters who
take part in the primary. It reads as follows:

															"No official ballot for primary election shall have on it any
symbol or device or any printed matter, except a uniform primary
test, reading as follows:"

															" I am a . . . (inserting name of political party or
organization of which the voter is a member) and pledge myself to
support the nominee of this primary;"

															"and any ballot which shall not contain such printed test above
the names of the candidates thereon, shall be void and shall not be
counted."

															This appears, however, to be a morally, rather than a legally,
enforceable pledge. See Love v. Wilcox, 119 Tex. 256, 28
S.W.2d 515, 70 A.L.R. 1484.

															Arts. 3092 and 3111 to 3114 deal with the mechanics of procuring
a place on the primary ballot for federal, state, district, or
county office. The request for a place on the ballot may be made to
the state, district, or county party chairman, either by the person
desiring nomination or by twenty-five qualified voters. The ballot
is prepared by a subcommittee of the county executive committee.
Art. 3115. A candidate must pay his share of the expenses of the
election before his name is placed on the ballot. Art. 3116. Art.
3116, however, limits the sum that may be charged candidates for
certain posts, such as the offices of district judge, judge of the
Court of Civil Appeals, and senator and representative in the state
and federal legislatures, and for some counties fees are fixed by
Arts. 3116a-3116d, 1939 Supp., and 3116e, 3116f, 1942 Supp.
Supplies for the election are distributed by the county committee,
Art. 3119, and Art. 3120 authorizes the use of voting booths,
ballot boxes and guard rails, prepared for the general
election,

															"for the organized political party nominating by primary
election that cast over one hundred thousand votes at the preceding
general election."

															The county tax collector must supply lists of qualified voters
by precincts; and these lists must be used at the primary. Art.
3121. The same precautions as to secrecy and the care of the
ballots must be observed in primary as in general elections. Art.
3122. Arts. 3123-3125 cover the making of returns to the county and
state chairmen and canvass of the result by the county committee.
By Art. 3127, a statewide canvass is required of the state
executive committee for state and district officers and a similar
canvass by the state convention, with respect to state officers, is
provided by Art. 3138. The nominations for district offices are
certified to the county clerks, and for state officers to the
Secretary of State. Arts. 3127, 3137, 3138. Ballot boxes and
ballots are to be returned to the county clerk, Art. 3128, 1942
Supp., and, upon certification by the county committee, the county
clerk must publish the result. Art. 3129, 1942 Supp. If no
objection is made within five days, the name of the nominee is then
to be placed on the official ballot by the county clerk. Art. 3131,
1942 Supp. Cf. Arts. 2978, 2984, 2992, 2996. Arts.
3146-3153, 1942 Supp., provide for election contests. The state
district courts have exclusive original jurisdiction, and the Court
of Civil Appeals has appellate jurisdiction. The state courts are
also authorized to issue writs of mandamus to require executive
committees, committeemen, and primary officers to discharge the
duties imposed by the statute. Art. 3142; cf. Art.
3124.

															The official ballot is required to contain parallel columns for
the nominees of the respective parties, a column for independent
candidates, and a blank column for such names as the voters care to
write in. Arts. 2978, 2980. The names of nominees of a party
casting more than 100,000 votes at the last preceding general
election may not be printed on the ballot unless they were chosen
at a primary election. Art. 2978. Candidates who are not party
nominees may have their names printed on the ballot by complying
with Arts. 3159-62. These sections require applications to be filed
with the Secretary of State, county judge, or mayor, for state and
district, county, and city offices, respectively. The applications
must be signed by qualified voters to the number of from one to
five percent of the ballots cast at the preceding election,
depending on the office. Each signer must take an oath to the
effect that he did not participate in a primary at which a
candidate for the office in question was nominated. While this
requirement has been held to preclude one who has voted in the
party primary from appearing on the ballot as an independent, Westerman v. Mims, 111 Tex. 29, 227 S.W. 178; see
Cunningham v. McDermett, (Civ.App.), one who lost at the
primary may still be elected at the general election by a write-in
vote. Cunningham v. McDermett, supra. The operations of the party are restricted by the state in one
other important respect. By Act. 3139, 1939 Supp., the state
convention can announce a platform of principles, but its
submission at the primary is a prerequisite to party advocacy of
specific legislation. Art. 3133.

															[ Footnote 7 ] Cf. Parker v. Brown, 317 U. S. 341 , 317 U. S.
359 -360.

															[ Footnote 8 ] Cf. Pollock v. Farmers Loan & Trust Co., 157 U. S. 429 , 157 U. S.
652 .

															[ Footnote 9 ] See cases collected in the dissenting opinion in Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393 , 285 U. S.
410 .

															[ Footnote 10 ] See e.g., United States v. Darby, 312 U.
S. 100 , overruling Hammer v. Dagenhart, 247 U. S. 251 ; California v. Thompson, 313 U. S. 109 , overruling Di Santo v. Pennsylvania, 273 U. S.
34 ; West Coast Hotel Co. v. Parrish, 300 U. S. 379 , overruling Adkins v. Children's Hospital, 261 U.
S. 525 ; Helvering v. Mountain Producers Corp., 303 U. S. 376 , overruling Gillespie v. Oklahoma, 257 U.
S. 501 , and Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393 ; Erie R. Co. v. Tompkins, 304 U. S. 64 , overruling 41 U. S. Tyson, 16 Pet. 1; Graves v. New York ex rel. O'Keefe, 306 U. S. 466 , overruling 78 U. S. Day and
New York ex rel. Rogers v. Graves, 299 U.
S. 401 ; O'Malley v. Woodrough, 307 U.
S. 277 , overruling Miles v. Graham, 268 U. S. 501 ; Madden v. Kentucky, 309 U. S. 83 , overruling Colgate v. Harvey, 296 U.
S. 404 ; Helvering v. Hallock, 309 U.
S. 106 , overruling Helvering v. St. Louis Union
Trust Co., 296 U. S. 39 , and Becker v. St. Louis Union Trust Co., 296 U. S.
48 ; Nye v. United States, 313 U. S.
33 , overruling Toledo Newspaper Co. v. United
States, 247 U. S. 402 ; Alabama v. King & Boozer, 314 U. S.
1 , overruling Panhandle Oil Co. v. Knox, 277 U. S. 218 , and Graves v. Texas Co., 298 U. S. 393 ; Williams v. North Carolina, 317 U.
S. 287 , overruling Haddock v. Haddock, 201 U. S. 562 ; State Tax Commission v. Aldrich, 316 U.
S. 174 , overruling First National Bank v.
Maine, 284 U. S. 312 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 , overruling Minersville School District v. Gobitis, 310 U. S. 586 .

															[ Footnote 11 ] Cf. dissent in Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393 at 285 U. S.
410 .

															MR. JUSTICE ROBERTS.

															In Mahnich v. Southern Steamship Co., 321 U. S.
96 , I have expressed my views with respect to the
present policy of the court freely to disregard and to overrule
considered decisions and the rules of law announced in them. This
tendency, it seems to me, indicates an intolerance for what those
who have composed this court in the past have conscientiously and
deliberately concluded, and involves an assumption that knowledge
and wisdom reside in us which was denied to our predecessors. I
shall not repeat what I there said, for I consider it fully
applicable to the instant decision, which but points the moral
anew.

															A word should be said with respect to the judicial history
forming the background of Grovey v. Townsend, 295 U. S.
45 , which is now overruled.

															In 1923, Texas adopted a statute which declared that no negro
should be eligible to participate in a Democratic Primary election
in that State. A negro, a citizen of the United States and of
Texas, qualified to vote, except for the provisions of the statute,
was denied the opportunity to vote in a primary election at which
candidates were to be chosen for the offices of senator and
representative in the Congress of the United States. He brought
action against the judges of election in a United States court
for Page 321 U. S. 667 damages for their refusal to accept his ballot. This court
unanimously reversed a judgment dismissing the complaint and held
that the judges acted pursuant to State law and that the State of
Texas, by its statute, had denied the voter the equal protection
secured by the Fourteenth Amendment. Nixon v. Herndon, 273 U. S. 536 (1927).

															In 1927, the legislature of Texas repealed the provision
condemned by this court and enacted that every political party in
the State might, through its Executive Committee, prescribe the
qualifications of its own members and determine in its own way who
should be qualified to vote or participate in the party, except
that no denial of participation could be decreed by reason of
former political or other affiliation. Thereupon, the State
Executive Committee of the Democratic Party in Texas adopted a
resolution that white Democrats, and no other, should be allowed to
participate in the party's primaries.

															A negro whose primary ballot was rejected pursuant to the
resolution sought to recover damages from the judges who had
rejected it. The United States District Court dismissed his action
and the Circuit Court of Appeals affirmed, but this court reversed
the judgment and sustained the right of action by a vote of 5 to 4. Nixon v. Condon, 286 U. S. 73 (1932).

															The opinion was written with care. The court refused to decide
whether a political party in Texas had inherent power to determine
its membership. The court said, however: "Whatever inherent power a
state political party has to determine the content of its
membership resides in the state convention," and referred to the
statutes of Texas to demonstrate that the State had left the
Convention free to formulate the party faith. Attention was
directed to the fact that the statute under attack did not leave to
the party convention the definition of party membership, but placed
it in the party's State Executive Committee, which could not, by
any stretch of reasoning, be Page 321 U. S. 668 held to constitute the party. The court held, therefore, that
the State Executive Committee acted solely by virtue of the
statutory mandate and as delegate of State power, and again struck
down the discrimination against negro voters as deriving force and
virtue from State action -- that is, from statute.

															In 1932, the Democratic Convention of Texas adopted a resolution
that

															"all white citizens of the State of Texas who are qualified to
vote under the Constitution and laws of the state shall be eligible
to membership in the Democratic party, and, as such, entitled to
participate in its deliberations."

															A negro voter qualified to vote in a primary election, except
for the exclusion worked by the resolution, demanded an absentee
ballot which he was entitled to mail to the judges at a primary
election except for the resolution. The county clerk refused to
furnish him a ballot. He brought an action for damages against the
clerk in a state court. That court, which was the tribunal having
final jurisdiction under the laws of Texas, dismissed his
complaint, and he brought the case to this court for review. After
the fullest consideration by the whole court, * an opinion was
written representing its unanimous views and affirming the
judgment. Grovey v. Townsend, 295 U. S.
45 (1935).

															I believe it will not be gainsaid the case received the
attention and consideration which the questions involved demanded,
and the opinion represented the views of all the justices. It
appears that those views do not now commend themselves to the
court. I shall not restate them. They are exposed in the opinion,
and must stand or fall on their merits. Their soundness, however,
is not a matter which presently concerns me. Page 321 U. S. 669 The reason for my concern is that the instant decision,
overruling that announced about nine years ago, tends to bring
adjudications of this tribunal into the same class as a restricted
railroad ticket, good for this day and train only. I have no
assurance, in view of current decisions, that the opinion announced
today may not shortly be repudiated and overruled by justices who
deem they have new light on the subject. In the present term, the
court has overruled three cases.

															In the present case, as in Mahnich v. Southern S.S.
Co., the court below relied, as it was bound to, upon our
previous decision. As that court points out, the statutes of Texas
have not been altered since Grovey v. Townsend was
decided. The same resolution is involved as was drawn in question
in Grovey v. Townsend. Not a fact differentiates that case
from this except the names of the parties.

															It is suggested that Grovey v. Townsend was overruled sub silentio in United States v. Classic, 313 U. S. 299 . If
so, the situation is even worse than that exhibited by the outright
repudiation of an earlier decision, for it is the fact that, in the Classic case, Grovey v. Townsend was
distinguished in brief and argument by the Government without
suggestion that it was wrongly decided, and was relied on by the
appellees not as a controlling decision, but by way of analogy. The
case is not mentioned in either of the opinions in the Classic case. Again and again, it is said in the opinion
of the court in that case that the voter who was denied the right
to vote was a fully qualified voter. In other words, there was no
question of his being a person entitled under state law to vote in
the primary. The offense charged was the fraudulent denial of his
conceded right by an election officer because of his race. Here,
the question is altogether different. It is whether, in a
Democratic primary, he who tendered his vote was a member of the
Democratic Party. Page 321 U. S. 670 I do not stop to call attention to the material differences
between the primary election laws of Louisiana under consideration
in the Classic case and those of Texas which are here
drawn in question. These differences were spelled out in detail in
the Government's brief in the Classic case and emphasized
in its oral argument. It is enough to say that the Louisiana
statutes required the primary to be conducted by State officials
and made it a State election, whereas, under the Texas statute, the
primary is a party election conducted at the expense of members of
the party and by officials chosen by the party. If this court's
opinion in the Classic case discloses its method of
overruling earlier decisions, I can only protest that, in fairness,
it should rather have adopted the open and frank way of saying what
it was doing than, after the event, characterize its past action as
overruling Grovey v. Townsend though those less sapient
never realized the fact.

															It is regrettable that, in an era marked by doubt and confusion,
an era whose greatest need is steadfastness of thought and purpose,
this court, which has been looked to as exhibiting consistency in
adjudication and a steadiness which would hold the balance even in
the face of temporary ebbs and flows of opinion, should now itself
become the breeder of fresh doubt and confusion in the public mind
as to the stability of our institutions.

															* The court was composed of Hughes, C.J., Van Devanter,
McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and
Cardozo, JJ.