James Worthen 0000-00-00 00:00:00
The Struggle of African Americans to Vote in Texas On Aug. 27, 1932, former Gov. Miriam “Ma” Ferguson defeated the incumbent Gov. Ross Sterling in the Democratic Primary runoff for governor, 476,074 to 472,741. After the Democratic Party had declared Ferguson the winner, Sterling filed an election contest in Travis County District Court on Sept. 22, 1932, alleging illegal votes had allowed Ferguson to win. Among other alleged illegalities, Sterling’s petition stated that African Americans (referred to in his petition as “negroes”) had been allowed to vote for Ferguson. Sterling was able to obtain an injunction from the 126th Judicial District Court in Travis County prohibiting the Texas Secretary of State from including Ferguson’s name on the Nov. 8 general election ballot. On Oct. 8, the Texas Supreme Court held that Sterling’s election contest was moot because it could not be adjudicated before the election and that Ferguson should be certified as the Democratic Party’s nominee for governor.1 Although the case may not be significant for election law, it reflects the difficulties African Americans encountered in exercising their right to vote in Texas during the first half of the 20th century. Exhibit “E” of Sterling’s original petition is a 40-page document listing the names of more than 400 African Americans in six counties across Texas who were alleged to have illegally voted for Ferguson. In 1923, Texas had become the only state in American history to enact a statute making it against the law for African Americans to vote in a Democratic Party primary election.2 In 1927, the U.S. Supreme Court held the statute violated the Fourteenth Amendment and could not stand.3 The Texas Legislature then immediately revised the statute, which in relevant parts, stated that “[e]very political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party. …”4 The U.S. Supreme Court on May 2, 1932, again declared this statute a violation of the Fourteenth Amendment because the party committee acted as a representative of the State and followed the legislature’s directive.5 But in the same opinion, the Court left open the question of “whether a political party in Texas has the inherent power today without restraint by any law to determine its own membership.”6 Quickly responding to this opening, the Texas Democratic Party passed a resolution declaring that African Americans could not vote in its primary. A unanimous U.S. Supreme Court held that a state convention of a party was not an organ of the state and that to deny the opportunity to vote in a primary was a mere refusal of party membership with which “the state need have no concern.” 7 The white primary as conducted by the Texas Democratic Party appeared to be entrenched with the Court’s consensus ruling. World War II would intrude upon this arrangement. After fighting overseas, African-American veterans returned home trying to register to vote, apparently sharing the view of one soldier that “after having been overseas fighting for democracy, I thought that when we got back here we should enjoy a little of it.”8 The U.S. Supreme Court in 1944 heard its fourth case on the right of African Americans to vote in the Texas Democratic Party Primary. This time, the Court determined that the primary was, by law, part of the election machinery of the State of Texas.9 An 8-1 decision invalidated the white primary in Texas. With African Americans dying on the battlefield around the world, the justices must have been tempted to help move the nation, in the words of the New York Times , “a little nearer to a more perfect democracy in which there will be but one class of citizen.”10 By Chief Justice James Worthen Notes 1. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753, 763 (1932). 2. Michael J. Klarman, Unfinished Business: Racial Equality in American History, 120 (2007). 3. Nixon v. Herndon, 273 U.S. 536, 540–41, 47 S. Ct. 446, 446–47, 71 L. Ed. 759 (1927). 4. Acts 1927, 40th Leg., 1st C.S., ch. 67, §1 (Vernon’s Ann. Civ. St. art. 3107). 5. Nixon v. Condon, 286 U.S. 73, 88, 52 S. Ct. 484, 487, 76 L. Ed. 984 (1932). 6. Id., 286 U.S. at 84, 53 S. Ct. at 485. 7. Grovey v. Townsend, 295 U.S. 45, 55, 55 S. Ct. 622, 626–27, 79 L. Ed. 1292 (1935). 8. Klarman, supra, at 133. 9. Smith v. Allwright, 321 U.S. 649, 664, 64 S. Ct. 757, 765, 88 L. Ed. 987 (1944). 10. Klarman, supra, at 136.
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