Opinion — Ray v. Blair

PRE Ni ae ier a PO Masts

Masse ED oe “

—

SUPREME COURT OF THE UNITED STATES

No. 649.—Ocroser TrerM, 1951.

Ben F. Ray, as Chairman of

the State Democratic Execu-

tive Committee of Alabama,

Petitioner,

On Writ of Certiorari to

the Supreme Court of

. Alabama.

Edmund Blair.

[April 3, 1952.]

Per CurIAM.

In this proceeding, an Alabama circuit court entered an

order directing petitioner to certify to the Secretary of

State of Alabama the name of respondent as a candidate

for nomination for Presidential and Vice-Presidential

elector in the primary election of the Democratic Party

to be held on May 6, 1952. ‘he Alabama Supreme Court

affirmed on the singl* ground that the order was com-

pelled by Article II, Secv‘on 1 and the Twelfth Amend-

ment of the Unit. . States Constitution.

Petitioner applied to this Court for a stay of the judg-

ments and mandates of the Alabama courts and filed a

petition for writ of certiorari to review the judgment of ©

the Alabama Supreme Court. On March 24, 1952, we

granted certiorari and ordered the judgments and man-

dates of the courts below stayed pending further consid-

eration and disposition of the case by this Court. The

case was assigned for argument on the stay as well as the

merits on March 31, 1952. 343 U.S. 901.

The question raised in this case has been thoroughly

briefed and argued. The Court has fully considered the

question and has reached its conclusion. It now an-

nounces its decision and enters its judgment in advance

2 RAY v. BLAIR.

of the preparation of a ful! opinion which, when prepared,

will be filed with the Clerk.

The Court holds that Article II, Section 1 and the

Twelfth Amendment of the Constitution do not compel

issuance of the orders entered below.

The judgment below is reversed. The mandate of this

Court is directed to issue forthwith.

Mr. Justice Doveitas and Mr. Justice JACKSON

dissent. :

Mr. Justice Buack and Mr. Justice FRANKFURTER

took no part in the consideration or decision of this

case.

—_

SUPREME COURT OF THE UNITED STATES

No. 649.—Ocroser Ter, 1951.

Ben F. Ray, as Chairman of The

State Democratic Executive

Committee of Alabama, Peti-

tioner,

On Writ of Certiorari

to the Supreme Court

wv? of Alabama.

Edmund Blair.

[April 15, 1952.]

Mr. Justice Reep 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 can-

didate 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 «ole ground that

the above requirement restricted the freeclom of a federal

elector to vote in his Electoral ( ollege for his choice for

President. —- Ala. —. The pledge was held void as

unconstitutional under the Twelfth Amendment of the

Constitution of the United States.’ Because the man-

‘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

PAGE Mego ADM, ON oe Sa

7

damus 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 elec-

tion 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 sum-

marily 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 per-

mitting party primaries. Title 17 of the Code of Ala-

bama, 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

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 au-

thority of the party may desire. § 341. Section 344

provides that the chairman of the state executive com-

2 RAY v. BLAIR.

not be an inhabitant of the same state with themselves; they shall

name in their ballots the person voted for as President, and in dis-

tinct 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 ap-

pointed; 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. . . .”

RAY v. BLAIR. 3

mittee 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.’

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

be printed the following, viz: ‘By casting this ballot I do

pledge myself to abide by the result of this primary elec-

tion 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 gen-

erally conformable to the current of authority. Section

* 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 pre-

scribe 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; ... .”

4 RAY v. BLAIR.

347 has been said by the Supreme Court of Alabama in

Ray v. Garner, 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 stat-

utory or constitutional provision.”

The Garner case involved a pledge adopted by the State

Democratic Executive Committee for printing on the pri-

mary 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 Gen-

eral Elections. I do further pledge myself to aid and

support the nominees of the National Convention of

the Democratic Party for President and Vice-Presi-

dent of the United States.”

This is substantially the same pledge that created the con-

troversy in this present case. The court also called at-

tention approvingly to Lett v. Dennis, 221 Ala. 432, 433, 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 par-

ticipating in its primary elections for nomination of can-

didates for office.” * As to the power to prescribe tests for

participation in primary elections, it was added that “in

Alabama this prerogative is vested in the State Party

Executive Committee, acting through its duly elected or

3See Merriam & Overacker, Primary Elections (1928), pp. 69-73,

124, 125. Cf. State ex rel. Curyea v. Wells, 92 Neb. 337; Francis v.

Sturgill, 174 8. W. 753.

RAY v. BLAIR. 5

chosen members. Smith v. McQueen, supra.”* The

McQueen case involved the selection of delegates to a

national political convention. It was also said in Ray v.

Garner concerning the voter's pledge that:

“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

‘This was not a unique delegation. In 1928 Merriam and Over-

acker cited ten other states which delegate to the party authorities

the right to preseribe 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 (Bobbs-

Merrill 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 Caro-

lina legislature apparently no longer regulates the conduct of pri-

maries at all, see Acts S. C. 1944, p. 2323, No. 810; and Texas and

Florida have repealed their election Codes and enacted new ones

which appear to lack any comparable provision, see The New Elec-

tion Code, Vernon’s Annotated Texas Statutes Service (1951), effec-

tive 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 ef. §§ 103.111 (3) and 103.121, Fla. Laws,

1951.

For provisions in the remaining states bearing on this delegation,

see 2 Ark. Stat. Ann. (Bobbs-Merrill, 1947) § 3-205; 12 Ga. Code

Ann. (Harrison, 1936) § 34-3218.2; Va. Code 1950 (Michie, 1949)

§§ 24-367, 24-369; 3 Miss. Code Ann. (Harrison, 1943) § 3129; Del.

Laws 1944-1945, ¢. 150, amending Rev. Code Del. 1935, ¢. 58, 1782,

§14; La. Rev. Stat. 1950, Tit. 18, §§ 306, 309; La. Const. Ann.

(Bobbs-Merrill, 1932) Art. 8, § 4.

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6 RAY v. BLAIR.

delegates to participate in the national convention,

the Executive Committee having ordered their elec-

tion and the party thereby having signified its inten-

tion to become a member of the national party.

Therefore, it was within the competency of the Com-

mittee to adopt the resolution so binding the voters

in the primary.” *

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

population, scattered over our Land, so as to coordinate

efforts to secure needed legislation and oppose that

deemed undesirable. Compare Bryce, Modern Democ-

racies, p. 546. The party conventions of locally chosen

delegates, from the county to the natioual level, succeeded

the caucuses of self-appointed legislators or other inter-

ested individuals. Dissatisfaction with the manipulation

of conventions caused that system to be largely superseded

5Such a holding integrates the state and national party. See

Cannon's Democratic Manual (1948):

“The Democratic National Committee is the permanent agency

authorized to act in behalf of the party during intervals between

Conventions. It is the creature of the National Convention and

therefore subordinate to its control and direction. Between Con-

ventions the Committee exercises such powers and authority as have

been delegated specifically to it and is subject to the directions and

instructions imposed by the Convention which created it.” P. 4.

“Duties and Powers of the Committee

“The duties and powers of the National Committee are derived

from the Convention creating it, and while subject to variation as

the Convention may provide, ordinarily include:

“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.

fe A Sar BOTA OEE, SS ee

En ee

RAY v. BLAIR. 7

by the direct primary. This was particularly true in the

South because, with the predominance of the Democratic

Party in that section, the nomination was more important

than the election. There primaries are generally, as in

Alabama, optional. Various tests of party allegiance for

candidates in direct primaries are found in a number of

‘ states." The requirement of a pledge from the candidate

participating in primaries to support the nominee is not

unusual.* Such a provision protects a party from in-

trusion by those with adverse political principles.” It was

*See Penniman, supra, n. 4, ce. XIII, XVIII, especially at pp. 300,

416; Merriam and Overacker, supra, n. 3, at pp. 92-93.

*Penniman, supra, pp. 425-426; Merriam and Overacker, supra,

pp. 129-133.

*E. g., §4, ¢. 109, N. D. Laws of 1907, pp. 151, 153, discussed in

State ex rel. McCue v. Blaisdell, 18 N. D. 55, 118 N. W. 141. See

7 Fla. Stat. Ann. (Harrison & West, 1943) § 99.021 (pkt pt); Fla.

Laws 1951, c. 99, amending 7 Fla. Stat. Ann. (Harrison: & West,

1943) § 102.29, discussed in Mairs v. Peters, 52 So. 2d 793. Cf. 3

Miss. Code Ann. 1942 (Harrison, 1943) § 3129; Ruhr v. Cowan, 146

Miss. 870, 112 So. 386. Cf. Va. Code 1950 (Michie, 1949) §§ 24-367,

24-369. See Westerman v. Mims, 111 Tex. 29, 227 8. W. 178, dis-

cussing Art. 3096 of Tex. Rev. Stat. of 1911; cf. Love v. Wilcor, 119

Tex. 256, 28 S. W. 2d 515.

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. —, 227 S. W. 2d 795; see also Love v. Taylor,

SS. W. 2d 795 (Tex. Civ. App.) ; McDonald v. Calhoun, 19 Tex. Sup.

Ct. Rep. 413, 149 Tex. —, 231 S. W. 2d 656: ef. Seay v. Latham,

143 Tex. 1, 182 S. W. 2d 251. See also the pledge required by the

Democratic Party of Arkansas, discussed in Fisher v. Taylor, 210

Ark. 380, 196 S. W. 2d 217.

Similar pledges, of course, are frequently exacted of voters in the

primaries. See, e. g., State ex rel. Adair v. Drerel. 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 3, 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

mh ree . Cbatent BATE GOH, aed

gS RAY v. BLAIR: ©"

under the authority of § 347 of the Alabama Code, note 2,

supra, that the State Democratic Executive Committee

of Alabama adopted a resolution on January 26, 1952,

requiring candidates in its primary to pledge support to

the nominees of the National Convention of the Demo-

cratic Party for President and Vice-President. It is this

provision in the qualifications required by the party under

§ 347 which the Supreme Court of Alabama held uncon-

stitutional in this case.

The opinion of the Supreme Court of Alabama con-

cluded that the Executive Committee requirement vio-

lated the Twelfth Amendment, note 1, supra. It said:

“We appreciate the argument that from time im-

memorial, 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

generally been taken for granted, so that the voting

for a president and vice-president has been usually

formal merely. But the Twelfth Amendment does

not make itso. The nominees of the party for presi-

dent and vice-president may have become disqual-

ified, or peculiarly offensive not only to the electors

but their constitutents also. They should be free to

vote for another, as contemplated by the Twelfth

Amendment.” ”

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. See Carter v.

- Tomlinson, 227 8. W. 2d 795, 798; 29 Tex. L. Rev. 378.

The court found support for its conclusion in the reasoning of

an Opinion of the Justices in answer to questions propounded by

RAY v. BLAIR. 9

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 pri-

mary election as a candidate for elector and fix his

own qualifications for such candidacy. This is con-

trary to the traditional American political system.”

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." The presi-

dential electors exercise a federal function in balloting

the Governor of Alabama in 1948. 250 Ala. 399. One question was

“Would an elector chosen at the general election in November 1948

have a discretion as to the persons for whom he could cast his ballot

for President and Vice-President.” Alabama had amended § 226 of

Title 17 of its Code, relating to the meeting and balloting of its

electoral college, by adding “and shall cast their ballots for the

nominee of the national convention of the party by which they were

elected.” That opinion said:

“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 judg-

ment 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.” Jd., at p. 400.

See McPherson v. Blacker, 146 U. S. 1, 36. See also 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.

"As both constitutional provisions long antedated the party pri-

mary system, it is not to be expected that they or their legislative

history would illumine this issue. They do not. Discussion in the

Constitutional Convention as to the manner of election of the Presi-

dent resulted in the arrangement by which presidential electors were

10 RAY v. BLAIR.

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

in turn receives its authority from the federal constitu-

tion.” Neither the language of Art. II, § 1, nor that of

the Twelfth Amendment forbids a party to require from

candidates in its primary a pledge of political conformity

with the aims of the party. Unless such a requirement

is implicit, certainly neither provision of the Constitution

chosen by the state as its legislature might direct. McPherson v.

Blacker, 146 U.S. 1, 28.

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 pro-

cedure, 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., Ist Sess. (1802).

122U.S. Const., Art. II, § 1:

“|. Each State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors, equal to the whole Number

of Senators and Representatives to which the State may be entitled

in the Congress: but no Senator or Representative, or Person holding

an Office of Trust of Profit under the United States, shall be appointed

an Elector... .”

Twelfth Amendment, note 1, supra; In re Green, 134 U. 8. 377,

379; Burroughs v. Cannon, 290 U. S. 534.

RAY v. BLAIR. 11

requires a state political party, affiliated with a national

party through acceptance of the national call to send

state delegates to the national convention, to accept per-

sons as candidates who refuse to agree to abide by the

party’s requirement.”

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 Presi-

dent and Vice-President is for states to appoint electors

who shall in turn vote for our chief executives. The in-

tention 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

elector’s freedom of balloting for President relates directly

to the general election and is not confined to the pri-

mary, it is contended, because under United States v.

Classic, 313 U. S. 399, and Smith v. Allwright, 321 U.S.

659, the Alabama primary is an integral part of the gen-

eral election. See Schnell v. Davis, 336 U.S. 933. Al-

though Alabama, it is pointed out, requires electors to be

chosen at the general election by popular vote, Ala. Code

1940, Tit. 17, § 222, the real election takes place in the

primary. Limitation as to entering a primary controls

the results of the general election.

’ The Supreme Court of Alabama has just said that the Democratic

Party of that state was thus affiliated with the national organization.

See the excerpt from Ray v. Garner, in the text at note 5, supra.

There is also a suggestion that, since the Alabama primary is

an integral part of the general election, the Fourteenth Amendment,

which among other prohibitions forbids a state to exclude voters on

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12 RAY v. BLAIR.

First we consider the impact of the Classic and All-

wright 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 pri-

mary 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 eleg-

tion as federal representatives. Therefore the sanctions

of Tit. 18, §§ 241 and 242, which forbade injury to con-

stitutionally secured rights, applied to the right to vote

in the primary. Pp.317-321. In the latter, the problem

was the constitutionality of the exclusion of citizens by a

party as electors in a party primary because of race. We

held, on consideration of state participation in the regula-

tion of the primary, that the party exclusion was state

action and such state action was unconstitutional because

the primary and general election were a single instrumen-

tality for choice of officers. The Fifteenth Amendment’s

prohibition of abridgment by a state of the right to vote

on account of race made the exclusion unconstitutional.

Consequently an injured party might sue one injuring him

under 8 U.S. C. $$ 31 and 43. 321 U.S. 650, 660-664.

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 Con-

account of their color, also forbids a state to exclude candidates be-

cause they refuse to pledge their votes. The answer to this sugges-

tion is that the requirement of this pledge, unlike the requirement

of color, is reasonably related to a legitimate legislative objective—

namely, to protect the party system by protecting the party from a

fraudulent invasion by candidates who will not support the party.

See note 9, supra. In facilitating the effective operation of democratic

government, a state might reasonably classify voters or candidates

according to party affiliations, but a requirement of color, as we have

pointed out before, is not reasonably related to any legitimate legis-

lative objective. Nixon v. Herndon, 273 U. S. 536. This require-

ment of a pledge does not deny equal protection or due process.

RAY v. BLAIR. 13

gress 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 can-

didates 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.

U.S. Const., Art. II, §1. The fact that the primary is

a part of the election machinery is immaterial unless the

requirement of pledge violates some constitutional or stat-

utory provision. It was the violation of a secured right

that brought about the Classic and Allwright decisions.

Here they do not apply unless there was a violation of

the Twelfth Amendment by the requirement to support

the nominees of the National Convention.

Secondly, we consider the argument that the Twelfth

Amendment demands absolute freedom for the elector

to vote his own choice, uninhibited by a pledge. It is

true that the Amendment says the electors shall vote

by ballot. But it is also true that the Amendment does

not prohibit an elector’s announcing his choice before-

hand, pledging himself. The suggestion that in the

early elections candidates for electors—contemporaries

of the Founders—would have hesitated, because of con-

stitutional limitations, to pledge themselves to support

party nominees in the event of their selection as elec-

tors is impossible to accept. History teaches that the

electors were expected to support the party nominees."*

“# ]1 Annals of Congress 1289-1290, 7th Cong., Ist Sess. (1802) :

“Under the Constitution electors are to vote for two persons, one

of whom does not reside in the State of the electors; but it does not

require a designation of the persons voted for. Wise and virtuous as

were the members of the Convention, experience has shown that the

mode therein adopted cannot be carried into operation; for the

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14 RAY v. BLAIR.

Experts in the history of government recognize the long-

standing practice.* Indeed, more than twenty states do

not print the names of the candidates for electors on the

people do not elect a person for an elector who, they know, does not

intend to vote for a particular person as President. Therefore, prac-

tically, the very thing is adopted, intended by this amendment.”

S. Rep. No. 22, 19th Cong., Ist 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 can-

didates to obey their will. In every subsequent election, the same

thing has been done. Electors, therefore, have not answered the de-

sign of their institution. They are not the independent body and su-

perior 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 Con-

stitution, § 1463 (5th ed., 1891).

26 McPherson v. Blacker, 146 U.S. 1, 36:

“Doubtless it, was supposed that the electors would exercise a reason-

able independence and fair judgment in the selection of the Chief

Executive, but experience soon demonstrated that, whether chosen by

the legislatures or by popular suffrage on general ticket or in dis-

tricts, they were so chosen simply to register the will of the appointing

power in respect of a particular candidate.”

IIl Cyclopedia of American Government (Appleton, 1914) Presi-

dential Elections by Albert Bushnell Hart, p. 5:

“In the three elections of 1788-S9, 1792 and 1796 there was a lib-

eral 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 1795 on there were always, with the exception of the two elee-

tions 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

hy SS TP TSE,

RAY v. BLAIR. 15

general election ballot. Instead in one form or a iher

they allow a vote for the presidential candidate of the

national conventions to be counted as a vote for his party’s

nominees for the state electoral college.” This long-con-

tinued practical interpretation of the constitutional pro-

priety of an implied or oral pledge of his ballot by a can-

didate for elector as to his vote in the electoral college

weighs heavily in considering the constitutionality of a

pledge, such as the one here required, in the primary.

However, even if such promises of candidates for the

electoral college are legally unenforceable because vio-

lative 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 unconsti-

7 FE. g., Massachusetts:

Annotated Laws of Massachusetts, ¢. 54:

Ҥ 43. Presidential Electors, Arrangement of Names of Candidates,

ete —The names of the candidates for presidential electors shall not

be printed on the ballot, but in lieu thereof the surnames of the

candidates of each party for president and vice president shall be

printed thereon in the line under the designation ‘Electors of presi-

dent and vice president’ and arranged in the alphabetical order of

the surnames of the candidates for president, with the political desig-

nation of the party placed at the right of and in the same line with

the surnames. A sufficient square in which each voter may desig-

nate by a eross (X) his choice for electors shall be left at the right

of each political designation.” .

See 8S. 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 “tanwood, A His-

tory 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 mestruction of electors in State Law on the

Nomination, Election and Instruction of Presidential Electors by

Ruth C. Silva, 42 Amer. Pol. Science Rev. 523

& ST ae GALE te RRA LER

16 RAY v. BLAIR.

tutional. 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. Code of Ala., Tit. 17, § 145. Even though the

victory of an independent candidate for elector in Ala-

bama cannot be anticipated, the state does offer the op-

portunity for the development of other strong political

organizations where the need is felt for them by a sizable

block of voters. Such parties may leave their electors to

their own choice.

We conclude that the Twelfth Amendment does not bar

a'political party from requiring the pledge to support the

nominees of the National Convention. Where a state

authorizes a party to choose its nominees for elector in a

party primary and to fix the qualifications for the candi-

dates, we see no federal constitutional objection to the

requirement of this pledge.

Mr. Justice Buack took no part in the consideration

or decision of this case.

Mr. Justice FRANKFURTE!, not having heard the argu-

ment, owing to illness, took no part in the disposition of

the case.

SUPREME COURT OF THE UNITED STATES

No. 649.—Ocroser Term, 1951.

Ben F. Ray, as Chairman of The

State Democratic Executive

Committee of Alabama, Peti-

tioner,

On Writ of Certiorari

to the Supreme Court

of Alabama.

v

Edmund Blair.

[April 15, 1952.]

Mr. Justice JAcKsoNn, with whom Mr. Justice Dovc-

LAS 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 disqualifica-

tions, 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 determina-

tion of any contest are prescribed by federal law. U. S.

Const., Art. II, § 1,3 U.S.C. §§ 1-7. When chosen, they

perform a federal function of balloting for President and

Vice President, federal law prescribing the time of meet-

ing, the manner of certifying “all the votes given by them,”

and in detail how such certificates shall be transmitted

and counted. U.S. Const., Amend. XII,3 U.S. C. §§ 9-

20. But federal statute undertakes no control of their

votes beyond providing “The electors shall vote for Presi-

dent and Vice President, respectively, in the manner di-

rected by the Constitution,” 3 U.S. C. § 8, and the Consti-

tution requires only that they “vote by ballot for President

and Vice President, one of whom, at least, shall not be

an inhabitant of the same State with themselves.” U.S.

Const., Amend. XII. No one faithful to our history can

deny that the plan originally contemplated, what is im-

Ta

2 RAY v. BLAIR.

plicit in its text, that electors would be free agents, to

exercise an independent and nonpartisan judgment as to

the men best qualified for the Nation’s highest offices.*

Certainly under that plan no state law could control the

elector in performance of his federal duty, any more than

it could a United States Senator who also is chosen by,

and represents, the State.

This arrangement miscarried. Electors, although often

personally eminent, independent, and respectable, offi-

cially 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.

However, in 1948, Alabama’s Democratic Party Elec-

tors refused to vote for the nominee of the Democratic

National Convention. To put an end to such party un-

reliability the party organization, exercising state-dele-

gated authority, closed the official primary to any can-

didate for elector unless he would pledge himself, under

*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 con-

fided. This end will be answered by committing the night of making

it, not to any preéstablished 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, se-

lected by their fellow-citizens from the general mass, will be most

likely to possess the information and discernment requisite to such

complicated investigations.”

TiS Oo eae pene 4

RAY v. BLAIR. 3

oath, to support any candidate named by the Democratic

National Convention. It is conceded that under long

prevailing conditions this effectively forecloses any chance

of the State being represented by an unpledged elector.

In effect, before one can become an elector for Alabama,

its law requires that he must pawn his ballot to a candidate

not yet named, by a conveniion not yet held, of delegates

not yet chosen. Even if the nominee repudiates the plat-

form adopted by the same convention, as Democratic

nominees have twice done in my lifetime (1904, 1928),

the elector is bound to vote for him. It will be’seen that

the State has sought to achieve control of the electors’

ballots. But the balloting cannot be constitutionally

subjected to any such control because it was intended to

be free, an act performed after all functions of the electoral

process left to the States have been completed. The

Alabama Supreme Court held that such a requirement

violates the Federal Constitution, and I agree.

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 de-

cision in this matter would be warranted. Usage may

sometimes impart changed content to constitutional gen-

eralities, 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 cus-

tom must rely upon custom for its sanctions.

The demise of the whole electoral system would not

impress me as a disaster. At its best it is a mystifying

and distorting factor in presidential elections which may

resoive a popular defeat into an electoral victory. At its

worst it is open to local corruption and manipulation,

once so flagrant as to threaten the stability of the country.

—4

4 RAY v. BLAIR.

To abolish it and substitute direct election of the Presi-

dent, so that every vote wherever cast would have equal

weight in calculating the result, would seem to me a gain

for simplicity and integrity of our governmental processes

But the Court’s decision does not even move in that

direction. What it is doing is to entrench the worst fea-

tures of the system in constitutional law and to ele

the perversion of the forefathers’ plan into a constitut

principle. This judicial overturn of the theory tha:

come down to us can not plead the excuse that

practical remedy for the evils or weaknesses of the © «

The Court is sanctioning a new instrument (

in the hands of any faction that can get cont a

Democratic National Convention to make it « eri

bama’s electoral vote. When the party is in js:

will likely be the administration faction and wh:

power no one knows what group it will be. This 4

of prepledged and oath-bound electors imposes yx

party within the State an oath-bound regularity and |

alty to the controlling element in the national party. [:

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 desir> free elections, we should

¢ not add to the leverage over local party representatives |

always possessed by those who enjoy the prestige and dis-

pense 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

proper place in a truly liberal or progressive scheme of

government. Who will come to possess this weapon and

to whose advantage it will prove in the long run I am not

foresighted enough to predict. But party control en-

trenched by disfranchisement and exclusion of noncon-

forming party members is a means which to my mind can

:

4

4

2

*

4

3

3

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ett

RAY v. BLAIR. 5

not be justified by any end. In the interest of free gov-

ernment, we should foster the power and the will to be

independent even on the part of those we may think to

be independently wrong.

(andidates for elector, like those of Senator, of course,

‘ay announce to their constituents their policies and

references, and assume a moral duty to carry them

' they are chosen. Competition in the primary be-

those of different views would forward the repre-

‘ative principle. But this plan effects a complete sup-

of competition between different views within

ty. All who are not ready to follow blindly any-

sen by the national convention are excluded from

‘nary, and that, in practice, means also from the

» not for me, as a judge, to pass upon the wisdom or

~ ‘eousness of the political revolt this measure was de-

“ered to suppress. For me it is enough that, be it ever

venevolent and virtuous, the end cannot justify these

means.

| would affirm the decision of the Supreme Court of

Alabama.

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