The Battle for the Black Ballot: Smith V. Allwright and the Defeat of the Texas All-White Primary.

Vol. 15 No.2 (February 2005), pp.166-169

THE BATTLE FOR THE BLACK BALLOT: SMITH V. ALLWRIGHT AND THE DEFEAT OF THE TEXAS ALL-WHITE PRIMARY, by Charles L. Zelden. Lawrence: University Press of Kansas, 2004. 168pp. Cloth $25.00. ISBN: 0-7006-1339-0. Paper $12.95. ISBN: 0-7006-1340-4.

Reviewed by Rhonda Evans Case, Department of Government, The University of Texas at Austin. revanscase@mail.utexas.edu.

Through its “Landmark Law Cases and American Society” series, the University Press of Kansas has generated an impressive list of books that explicate the stories behind some of the most significant court cases in American history. Authors situate these cases within their broader societal and political contexts, elaborate their role in American constitutional development, and analyze the changing ways in which lower court judges and U.S. Supreme Court justices framed legal issues and interpreted the U.S. Constitution. In so doing, books in this series not only specify the interests at stake and the actors that drove the litigation, but more broadly, they also explore the role of courts in complex processes of social, economic, and political change. THE BATTLE FOR THE BLACK BALLOT, which focuses on the 1944 Texas case SMITH v. ALLWRIGHT, is one of the more recent contributions to the series. In a mere 132 pages of text, Charles L. Zelden, a historian, skillfully recounts the story of the rise, evolution, and decline of the all-white primary (AWP), one of a litany of devices once used by whites to deprive blacks of political power across the South. Zelden’s expertise in this area derives from his earlier research on the U.S. District Court for the Southern District of Texas (1993) and his more recent work on voting rights (2002). With THE BATTLE FOR THE BLACK BALLOT, he offers readers an accessible account of the political causes and effects of the AWP in Texas and of the way in which a set of constitutional arguments that had served to protect the AWP was eventually undermined and supplanted. This is a tall order for such a slender volume, but Zelden pulls it off admirably.

The book is comprised of six well-organized chapters. After an introduction that situates the AWP within the broader patterns of Jim Crow oppression, Chapter 2 sketches the social, economic, and political forces that fueled white Texans’ demands for black disenfranchisement and facilitated the adoption of an AWP. Zelden acknowledges the role that racial hatred played in political repression of Southern blacks, but he is careful to demonstrate how issues of class, geography, and dissent within the Democratic Party also shaped developments. In the span of a few pages, he discusses the negative effects of the rise of a national market and the growth of corporate industrialism among the South’s poor and rural populations and how the resulting frustration sparked waves of populist revolt that convulsed Texas during the latter decades of the nineteenth century. Political cooperation between blacks and poor whites led to a [*167] measure of success in state elections, but the Populists ultimately failed to realize their grander aspirations. In the political stocktaking that followed, Zelden chronicles how the main factions within the Democratic Party concluded, albeit for different reasons, that electoral reform, including the disenfranchisement of blacks, was warranted. Implementation of a poll tax in 1902 dramatically reduced voter turnout among both blacks and whites, but it also had the unintended effect of empowering those few remaining black voters to swing elections in some hotly contested races. As a result, a more thorough means of excluding African Americans from the polls was deemed necessary, and the AWP became the vehicle for achieving that objective. Thus, “[w]hite Democrats,” according to Zelden, “turned to the AWP in large part because they could not trust themselves not to make use of the forbidden fruit of black votes” (p.38).

In Chapter 3, Zelden examines the African American community’s response to their disenfranchisement and shows that SMITH was the culmination of twenty years of struggle. As he duly notes, the stories of the persons and events that precipitated the various court challenges to Texas’ AWP have already been told, most notably by Darlene Clark Hine (1979). In addition, the discord between local attorneys and African American activists, on the one hand, and national officers of the National Association for the Advancement of Colored People (NAACP), on the other, has also been described by others. In Zelden’s rendering of these events, however, he introduces ideas developed within the public law literature. He analyzes the tensions among the activists in terms of Marc Galanter’s (1974) concepts of “repeat players” (frequent litigants) and “one-shotters” (occasional litigants). As repeat players, Zelden asserts that NAACP lawyers considered how victory was gained to be just as important as victory itself, for “a win for the wrong reasons could be just as damaging as a clear defeat” (p.50). By contrast, he explains that local lawyers, one-shotters, sought an immediate solution and lacked a broader jurisprudential strategy. Zelden uses Galanter’s conceptual framework in subsequent chapters to demonstrate the dilemmas that faced NAACP officers as they sought to explain the association’s litigation priorities and tactics to those laboring in the local branches. In so doing, he demonstrates how the NAACP’s success inside the courtroom depended upon a combination of both legal and political skills.

Chapter 4 details early court challenges to the AWP, and Chapter 5 traces SMITH from its inception in 1941 to its treatment by the U.S. Supreme Court three years later. Early suits sought injunctions to prevent whites from impeding black voting and relied upon the argument that state laws violated the 14^th and 15^th Amendments. In 1921, however, the U.S. Supreme Court ruled that primaries were not “elections” within the meaning of the Constitution. Fourteen years later, the Court, drawing upon the “state action” doctrine that had historically proven so detrimental to blacks, determined that the Democratic Party was a voluntary private group rather than an agent of the state and that, therefore, the 14^th Amendment shielded the operation of its primary elections from federal regulation. In these [*168] chapters, Zelden showcases the masterful legal strategizing of Thurgood Marshall. The book concludes with a chapter that reviews developments across the South that occurred in SMITH’s wake. Here, Zelden illustrates the power as well as the limits of a single court decision. Although SMITH represents a critical turning-point in Supreme Court jurisprudence, he shows that sustained judicial support was subsequently required in order to enforce the decision against the evasive efforts of Southern whites. Zelden also shows how SMITH laid “a foundation for the Court’s expanding notions of state action” (p.4).

My only real fault with the book lies in Zelden’s choice of citation style. Rather than using footnotes or parenthetical references accompanied by a bibliography, Zelden relies solely upon a bibliographic essay to direct readers to primary materials and secondary sources. At points, this approach makes it difficult to appreciate the extent to which his insights are the product of secondary sources versus primary research. Nevertheless, this is a relatively minor quibble. Zelden’s book cogently weaves a series of important events into a compelling story of American constitutional development that gives due regard to all of the story’s characters. As such, it can serve a number of pedagogical interests. Any of the chapters could be assigned individually in order to supplement case law readings, as could the chronology (pp.133-37) that tracks developments from the ratification of the 13^th Amendment to the passage of the Voting Rights Act in 1965. The book, as a whole, could serve as a springboard for classroom discussions about the politics of federalism, social movements, and constitutional interpretation, three main themes Zelden presents in real human terms that capture the competing goals, strategies, and constituencies of the actors involved. In this reviewer’s experience, undergraduate students often read U.S. Supreme Court decisions with the presumption that there must be one right answer. Zelden’s account of the SMITH case offers an accessible antidote to that sort of thinking by highlighting the contingency and agency that produced and shaped the case. It also demonstrates the iterative, circuitous nature of constitutional litigation and the fact that defeat can be transformed into ultimate triumph. In sum, because the book is well-written, well-organized, and relatively short, THE BATTLE FOR THE BLACK BALLOT would make an excellent addition to courses on the African American Civil Rights Movement, as well as more general courses on the politics of constitutional interpretation or the use of the courts to effect socio-political change.

REFERENCES:

Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW AND SOCIETY REVIEW 95-160.

Hine, Darlene Clark. 1979. BLACK VICTORY: THE RISE AND FALL OF THE WHITE PRIMARY IN TEXAS. Millwood: NY: KTO.

Zelden, Charles L. 1993. JUSTICE LIES IN THE DISTRICT: THE U.S. DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, 1902-1960. College Station: Texas A&M University Press. [*169]

Zelden, Charles L. 2002. VOTING RIGHTS ON TRIAL: A HANDBOOK WITH CASES, LAWS, AND DOCUMENTS. Santa Barbara, CA: ABC-CLIO.

CASE REFERENCES:

SMITH v. ALLWRIGHT, 321 US 649 (1944).

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