RAY, CHAIRMAN OF THE STATE DEMOCRATIC EXECUTIVE COMMITTEE OF ALABAMA, v. BLAIR.
No. 649
Supreme Court of the United States
Argued March 31, 1952. - Decided April 3, 1952. - Opinions filed April 15, 1952.
343 U.S. 214
Horace C. Wilkinson argued the cause and filed a brief for respondent.
MR. JUSTICE REED delivered the opinion of the Court.
The Supreme Court of Alabama upheld a peremptory writ of mandamus requiring the petitioner, the chairman of that state‘s Executive Committee of the Democratic Party, to certify respondent Edmund Blair, a member of that party, to the Secretary of State of Alabama as a candidate for Presidential Elector in the Democratic Primary to be held May 6, 1952. Respondent Blair was admittedly qualified as a candidate except that he refused to include the following quoted words in the pledge required of party candidates—a pledge to aid and support “the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.” The chairman‘s refusal of certification was based on that omission.
The mandamus was approved on the sole ground that the above requirement restricted the freedom of a federal elector to vote in his Electoral College for his choice for President. 257 Ala. —, 57 So. 2d 395. The pledge was held void as unconstitutional under the Twelfth Amend-
On account of the limited time before the primary election date, this Court ordered prompt argument on March 31, 1952, after granting certiorari and handed down a per curiam decision on April 3, 343 U. S. 154, stating summarily our conclusion on the federal constitutional issue that determined the Alabama judgment. This opinion is to supplement that statement. Our mandate issued forthwith.
The controversy arose under the Alabama laws permitting party primaries. Title 17 of the Code of Alabama, 1940, as amended, provides for regular optional primary elections in that state on the first Tuesday in May of even years by any political party, as defined in the
Every state executive committee is given the power to fix political or other qualifications of its own members. It may determine who shall be entitled and qualified to vote in the primary election or to be a candidate therein. The qualifications of voters and candidates may vary.2
Section 348 requires a candidate to file his declaration of candidacy with the executive committee in the form prescribed by the governing body of the party. There is a provision, § 350, which reads as follows: “At the bottom of the ballot and after the name of the last candidate shall
On consideration of these sections in other cases the Supreme Court of Alabama has reached conclusions generally conformable to the current of authority. Section 347 has been said by the Supreme Court of Alabama in Ray v. Garner, 257 Ala. —, 57 So. 2d 824, 826, decided March 27, 1952, to give full power to the state executive committee to determine “who shall be entitled and qualified to vote in primary elections or be candidates or otherwise participate therein . . . just so such Committee action does not run afoul of some statutory or constitutional provision.”
The Garner case involved a pledge adopted by the State Democratic Executive Committee for printing on the primary ballot, reading as follows:
“By casting this ballot I do pledge myself to abide by the result of this Primary Election and to aid and support all the nominees thereof in the ensuing General Elections. I do further pledge myself to aid and support the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.” 257 Ala., at —, 57 So. 2d, at 825.
This is substantially the same pledge that created the controversy in this present case. The court also called attention approvingly to Lett v. Dennis, 221 Ala. 432, 433, 129 So. 33, 34, a case that required a candidate in the primary to follow a party requirement and make a public oath as to his vote in the past general election, where it was declared “a test by a political organization of party affiliation and party fealty is reasonable and proper to be prescribed for those participating in its primary elections
“Primarily, the pledge must be germane to party membership and party elections and, while the last clause of the pledge pertains to the national party, the party in Alabama will be a part of it by sending delegates to participate in the national convention, the Executive Committee having ordered their election and the party thereby having signified its intention to become a member of the national party. Therefore, it was within the competency of the Committee to adopt the resolution so binding the voters in the primary.”5 257 Ala., at —, 57 So. 2d, at 826.
As is well known, political parties in the modern sense were not born with the Republic. They were created by necessity, by the need to organize the rapidly increasing
The opinion of the Supreme Court of Alabama concluded that the Executive Committee requirement violated the Twelfth Amendment, note 1, supra. It said:
“We appreciate the argument that from time immemorial, the electors selected to vote in the college have voted in accordance with the wishes of the party to which they belong. But in doing so, the effective compulsion has been party loyalty. That theory has
In urging a contrary view the dissenting Alabama justices, in supporting the right of the Committee to require this candidate to pledge support to the party nominees, said:
“Any other view, it seems, would destroy effective party government and would privilege any candidate, regardless of his political persuasion, to enter a primary election as a candidate for elector and fix his
The applicable constitutional provisions on their face furnish no definite answer to the query whether a state may permit a party to require party regularity from its primary candidates for national electors.11 The presidential electors exercise a federal function in balloting for President and Vice-President but they are not federal officers or agents any more than the state elector who votes for congressmen. They act by authority of the state that
The argument against the party‘s power to exclude as candidates in the primary those unwilling to agree to aid and support the national nominees runs as follows: The constitutional method for the selection of the President and Vice-President is for states to appoint electors who shall in turn vote for our chief executives. The intention of the Founders was that those electors should exercise their judgment in voting for President and Vice-President. Therefore this requirement of a pledge is a restriction in substance, if not in form, that interferes with the performance of this constitutional duty to select the proper persons to head the Nation, according to the best judgment of the elector. This interference with the
First we consider the impact of the Classic and Allwright cases on the present issues. In the former case, we dealt with the power of Congress to punish frauds in the primaries “[w]here the state law has made the primary an integral part of the procedure of choice.” We held that Congress had such power because the primary was a necessary step in the choice of candidates for election as federal representatives. Therefore the sanctions of §§ 19 and 20 of the old Criminal Code, subsequently re-
In Alabama, too, the primary and general elections are a part of the state-controlled elective process. The issue here, however, is quite different from the power of Congress to punish criminal conduct in a primary or to allow damages for wrongs to rights secured by the Constitution. A state‘s or a political party‘s exclusion of candidates from a party primary because they will not pledge to support the party‘s nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party. It is an exercise of the state‘s right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.
However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary.
the surnames. A sufficient square in which each voter may designate by a cross (X) his choice for electors shall be left at the right of each political designation.”
See S. Doc. No. 243, 78th Cong., 2d Sess. (1944), containing a summary of the state laws relating to nominations and election of presidential electors.
See Library of Congress, Legislative Reference Service, Proposed Reform of the Electoral College, 1950; Edward Stanwood, A History of the Presidency from 1788 to 1897 (1912), pp. 47, 48, 50, 51. The author shows the practice of an elector‘s announcing his preference and gives an alleged instance of violation.
See the comments on instruction of electors in State Law on the Nomination, Election, and Instruction of Presidential Electors, by Ruth C. Silva, 42 Am. Pol. Sci. Rev. 523.
MR. JUSTICE BLACK took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, not having heard the argument, owing to illness, took no part in the disposition of the case.
MR. JUSTICE JACKSON, with whom MR. JUSTICE DOUGLAS joins, dissenting.
The Constitution and its Twelfth Amendment allow each State, in its own way, to name electors with such personal qualifications, apart from stated disqualifications, as the State prescribes. Their number, the time that they shall be named, the manner in which the State must certify their ascertainment and the determination of any contest are prescribed by federal law.
This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:
They always voted at their Party‘s call
And never thought of thinking for themselves at all.
As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.
*See The Federalist, No. 68 (Earle ed., 1937), pp. 441-442:
“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”
It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as “due process of law,” “equal protection,” or “commerce among the states.” But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.
But the Court‘s decision does not even move in that direction. What it is doing is to entrench the worst features of the system in constitutional law and to elevate the perversion of the forefathers’ plan into a constitutional principle. This judicial overturn of the theory that has come down to us cannot plead the excuse that it is a practical remedy for the evils or weaknesses of the system.
The Court is sanctioning a new instrument of power in the hands of any faction that can get control of the Democratic National Convention to make it sure of Alabama‘s electoral vote. When the party is in power this will likely be the administration faction and when not in power no one knows what group it will be. This device of prepledged and oath-bound electors imposes upon the party within the State an oath-bound regularity and loyalty to the controlling element in the national party. It centralizes party control and, instead of securing for the locality a share in the central management, it secures the central management in dominance of the local vote in the Electoral College. If we desire free elections, we should not add to the leverage over local party representatives always possessed by those who enjoy the prestige and dispense the patronage of a national administration.
The view of many that it is the progressive or liberal element of the party that will presently advantage from this device does not prove that the device itself has any
Candidates for elector, like those for Senator, of course, may announce to their constituents their policies and preferences, and assume a moral duty to carry them out if they are chosen. Competition in the primary between those of different views would forward the representative principle. But this plan effects a complete suppression of competition between different views within the party. All who are not ready to follow blindly anyone chosen by the national convention are excluded from the primary, and that, in practice, means also from the election.
It is not for me, as a judge, to pass upon the wisdom or righteousness of the political revolt this measure was designed to suppress. For me it is enough that, be it ever so benevolent and virtuous, the end cannot justify these means.
I would affirm the decision of the Supreme Court of Alabama.
Notes
For provisions in the remaining states bearing on this delegation, see
“8. Provision for the National Convention, involving:
“b. Authorization of call and determination within authority granted by last National Convention of representation from States, Territories and Districts; . . . .” Pp. 7-8.
For an example of a pledge specifically directed toward primary candidates for the office of presidential elector, see the resolutions of the State Democratic Committee of Texas discussed in Carter v. Tomlinson, 149 Tex. 7, 227 S. W. 2d 795; see also Love v. Taylor, 8 S. W. 2d 795 (Tex. Civ. App.); McDonald v. Calhoun, 149 Tex. 232, 231 S. W. 2d 656; cf. Seay v. Latham, 143 Tex. 1, 182 S. W. 2d 251. See also the pledge required by the Democratic Party of
Similar pledges, of course, are frequently exacted of voters in the primaries. See, e. g., State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N. W. 174; Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121; Ladd v. Holmes, 40 Ore. 167, 66 P. 714. See Penniman, supra, note 4, at p. 431; Merriam and Overacker, supra, note 4, at pp. 124-129.
See Seay v. Latham, 143 Tex. 1, 182 S. W. 2d 251. This was a Texas case that allowed the Democratic Party of Texas to withdraw its nomination of presidential electors when they announced their determination to vote against the nominees of the party as made by the National Convention. The names of others were substituted. The court said:
“A political party is a voluntary association, instituted for political purposes. It is organized for the purpose of effectuating the will of those who constitute its members, and it has the inherent power of determining its own policies.” 143 Tex., at p. 5, 182 S. W. 2d, at 253. See Carter v. Tomlinson, 149 Tex. 7, 13, 227 S. W. 2d 795, 798; 29 Tex. L. Rev. 378.
“The language of the Federal Constitution clearly shows that it was the intention of the framers of the Federal Constitution that the electors chosen for the several states would exercise their judgment and discretion in the performance of their duty in the election of the president and vice-president and in determining the individuals for whom they would cast the electoral votes of the states. History supports this interpretation without controversy.” 250 Ala., at 400, 34 So. 2d, at 600. See McPherson v. Blacker, 146 U. S. 1, 36. See also Willbern, Discretion of Presidential Electors, 1 Ala. L. Rev. 40.
On this review the right to a place on the primary ballot only is in contest.
The Twelfth Amendment was brought about as the result of the difficulties caused by the procedure set up under Art. II, § 1. Under that procedure, the electors of each state did not vote separately for President and Vice-President; each elector voted for two persons, without designating which office he wanted each person to fill. If all the electors of the predominant party voted for the same two men, the election would result in a tie, and be thrown into the House, which might or might not be sympathetic to that party. During the John Adams administration, we had a President and Vice-President of different parties, a situation which could not commend itself either to the Nation or to most political theorists.
The situation was manifestly intolerable. Accordingly the Twelfth Amendment was adopted, permitting the electors to vote separately for presidential and vice-presidential candidates. Under this procedure, the party electors could vote the regular party ticket without throwing the election into the House. Electors could be chosen to vote for the party candidates for both offices, and the electors could carry out the desires of the people, without confronting the obstacles which confounded the elections of 1796 and 1800. See 11 Annals of Congress 1289-1290, 7th Cong., 1st Sess. (1802).
Twelfth Amendment, note 1, supra; In re Green, 134 U. S. 377, 379; Burroughs v. United States, 290 U. S. 534.
Furthermore, the Fifteenth Amendment directly forbids abridgment on account of color of the right to vote.
S. Rep. No. 22, 19th Cong., 1st Sess. (1826), p. 4: “In the first election held under the constitution, the people looked beyond these agents [electors], fixed upon their own candidates for President and Vice President, and took pledges from the electoral candidates to obey their will. In every subsequent election, the same thing has been done. Electors, therefore, have not answered the design of their institution. They are not the independent body and superior characters which they were intended to be. They are not left to the exercise of their own judgment; on the contrary, they give their vote, or bind themselves to give it, according to the will of their constituents. They have degenerated into mere agents, in a case which requires no agency, and where the agent must be useless, if he is faithful, and dangerous, if he is not.” See 2 Story on the Constitution (5th ed., 1891) § 1463.
III Cyclopedia of American Government (Appleton, 1914), Presidential Elections, by Albert Bushnell Hart, p. 8: “In the three elections of 1788-89, 1792 and 1796 there was a liberal scattering of votes, 13 persons receiving votes in 1796; but in 1800 there were only five names voted on. As early as 1792 an understanding was established between the electors in some of the different states that they should combine on the same man; and from 1796 on there were always, with the exception of the two elections of 1820 and 1824, regular party candidates. In practice most of the members of the electoral colleges belonged to a party, and expected to support it; and after 1824 it became a fixed principle that the electors offered themselves for the choice of the voters or legislatures upon a pledge to vote for a predesignated candidate.”