Even when the United States Supreme Court ruled in a direction that seemed to suggest an understanding of the distortions of race in the American constitutional system–as it did in its early primary election cases–the rulings were narrow and allowed states ample opportunity for loopholes.

In the first of a series of cases which–by the end of the 1940s–ending racial discrimination in election primaries–Justice Oliver Wendell Holmes Jr. voided a 1923 Texas law which barred blacks from voting in primaries held by the Democratic Party (whose popularity throughout the South meant that its candidates chosen in primaries would be the inevitable election victors). Taken up by the National Association for the Advancement of Colored People, formed slightly more than a decade earlier, the case of Dr. L. A. Nixon, an African American physician from El Paso who had unsuccessfully attempted to vote in 1924, was argued by acclaimed constitutional attorney Moorfield Storey and Arthur Spingarn, whose brother Joel led the World War I-era fight for a federal anti-lynching law. Citing the Texas law as a violation of the Fourteenth Amendment’s requirement of “equal protection,” the court upheld Nixon and the NAACP’s case.

New York Age, March 12, 1927

Responding to the decision of the unanimous court in Nixon v. Herndon, Texas immediately revised its laws to allow the executive committee of political parties, acting as private organizations, to control their primaries by limiting those who could vote in them to “all white Democrats . . . and none other.” Dr. Nixon’s response was a second lawsuit which led to the 1932 ruling in Nixon v. Condon against the new procedure as simply another state effort that the 1927 ruling covered and invalidated.

In the 1930s, the court ruled in the unanimous Grovey v. Townsend, yet another Texas case, that the Democratic Party was a private organization and that its members voting in convention could set policies for voting in its private elections; however, in Smith v. Allwright (1944) the Supreme Court ruled that Texas had delegated its authority to the party (primaries were “an integral part of the elective process”) and that the latter’s discrimination was thus Texas’s. (In United States v. Classic, following Grovey, the court had ruled that primaries, increasingly of use for federal as well as state elections, were part of elections.) As Justice Stanley Forman Reed explained, “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.”  It added: “The privilege of membership in a party may be, as this Court said in Grovey v. Townsend . . . no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.” And, despite the Supreme Court’s hesitancy to reject prior rulings, it concluded with ” . . . 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.”