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Opinion of the Court.
Committee of the Democratic Party, to certify respondent as a candidate for Presidential Elector in a Democratic Primary which was to be held on May 6, 1952. 257 Ala. -, 57 So. 2d 395. This Court granted certiorari. 343 U. S. 901. In a per curiam decision announced on April 3, 1952, in advance of the preparation of this opinion, this Court reversed that judgment. 343 U.S. 154. This opinion states the reasons for that decision.
Marx Leva and Harold M. Cook argued the cause for petitioner. With them on the brief were James J. Mayfield, George A. LeMaistre and Louis F. Oberdorfer.
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
Opinion of the Court.
ment of the Constitution of the United States.1 Because the mandamus was based on this federal right specially claimed by respondent, we granted certiorari. 28 U. S. C. § 1257 (3); 343 U. S. 901.
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
1 U. S. Const., Amend. XII:
"The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. . . ."
Opinion of the Court.
chapter, at state cost. §§ 336, 337, 340, 343. They are subject to the same penalties and punishment provisions as regular state elections. § 339. Parties may select their own committee in such manner as the governing authority of the party may desire. § 341. Section 344 provides that the chairman of the state executive committee shall certify the candidates other than those who are candidates for county offices to the Secretary of State of Alabama. That official, within not less than 30 days prior to the time of holding the primary elections, shall certify these names to the probate judge of any county holding an election.
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
2 Ala. Code, 1940, Tit. 17, § 347: "All persons who are qualified electors under the general laws of the State of Alabama, and who are also members of a political party entitled to participate in such primary election, shall be entitled to vote therein and shall receive the official primary ballot of that political party, and no other; but every state executive committee of a party shall have the right, power and authority to fix and prescribe the political or other qualifications of its own members, and shall, in its own way, declare and determine who shall be entitled and qualified to vote in such primary election, or to be candidates therein, or to otherwise participate in such political parties and primaries; and the qualifications of electors entitled to vote in such primary election shall not necessarily be the same as the qualifications for electors entitled to become candidates therein;
Opinion of the Court.
be printed the following, viz: '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 election.'"
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
Opinion of the Court.
for nomination of candidates for office." As to the power to prescribe tests for participation in primary elections, it was added in the Garner case that "in Alabama this prerogative is vested in the State Party Executive Committee, acting through its duly elected or chosen members. Smith v. McQueen, [232 Ala. 90, 166 So. 788]." 257 Ala., at 57 So. 2d, at 826. The McQueen case involved the
3 See Merriam and Overacker, Primary Elections (1928), pp. 69–73, 124, 125. Cf. State ex rel. Curyea v. Wells, 92 Neb. 337, 138 N. W. 165; Francis v. Sturgill, 163 Ky. 650, 174 S. W. 753.
This was not a unique delegation. In 1928 Merriam and Overacker cited ten other states which delegate to the party authorities the right to prescribe such qualifications, with or without a statutory statement of minimum qualifications; these ten were Delaware, Idaho, and the remainder of the "solid South," except North Carolina. See Merriam and Overacker, supra, note 3, at pp. 72-73. In 1948 Penniman reports the continued existence of these delegations in all these states except Idaho, which now apparently requires only that the candidate "represent the principles" of the party and be duly registered in the appropriate precinct. 6 Idaho Code (BobbsMerrill, 1948) §§ 34-605, 34-606, 34-614. See Penniman, Sait's American Parties and Elections (4th ed., 1948), p. 431. However, the situation has changed in several of those states: the South Carolina legislature apparently no longer regulates the conduct of primaries at all, see S. C. Acts 1944, No. 810, p. 2323; and Texas and Florida have repealed their election codes and enacted new ones which appear to lack any comparable provision, see The New Election Code, Vernon's Annotated Texas Statutes Service (1951), effective January 1, 1952; Fla. Laws 1951, c. 26870. In both Texas and Florida, the primary is open to party "members"; the extent to which the party itself may prescribe membership qualifications is not explicitly set forth. But cf. §§ 103.111 (3) and 103.121, Fla. Laws 1951, c. 26870.
For provisions in the remaining states bearing on this delegation, see 2 Ark. Stat. Ann. (Bobbs-Merrill, 1948) § 3-205; 12 Ga. Code Ann. (Harrison, 1936) § 34-3218.2; Va. Code, 1950 (Michie, 1949), $8 24-367, 24-369; 3 Miss. Code Ann., 1942 (Harrison, 1943), § 3129; Del. Laws 1944-1945, c. 150, amending Del. Rev. Code, 1935, c. 58, 1782, § 14; La. Rev. Stat., 1950, Tit. 18, §§ 306, 309; La. Const. Ann. (Bobbs-Merrill, 1932), Art. 8, § 4.