Page:Robinson v. Holman.pdf/5

432 The State has nothing to do with the holding of primary elections. The statute fixes the date for holding primary elections, but the State appoints no officers to hold a Democratic primary. It does not pay the cost thereof. The machinery for holding a Democratic primary election in Arkansas is entirely an instrumentality treated by the party with which the State, as a State, has nothing to do. Whereas in a general election the entire machinery for holding such election is the creature of the State.

Appellants have cited no case that sustains their contentions. The cases cited and relied upon grow out of discriminations complained of in general elections with the exception of Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446. That case was a suit for damages agaiiiSt the judges of elections for refusing to permit the appellants to vote in a primary election in Texas. The right to vote was denied them by reason of a statute of that State which provided that "in no event shall a negro be eligible to participate in a Democratic Party primary election held in the State of Texas." The Supreme Court of the United States undoubtedly was correct in holding the act unconstitutional as being in violation of the Fourteenth Amendment, and found it unnecessary to consider the matter under the Fifteenth Amendment. After the decision in this case, the offending statute was repealed, and the Democratic Party in Texas adopted a rule similar to the rule of the Democratic Party in Arkansas, above quoted, and the same Nixon, having been deprived of the privilege of voting in the Democratic primary in Texas, brought another action for damages against the election judges at a Democratic primary in Texas refusing him the privilege of voting therein.. The case was tried before District Judge Boynton of the Western District of Texas, El Paso Division, on July 31, 1929. The style of the case is Nixon v. Condon, 34 Fed. (2d) 464. It is there held that the action could not be maintained for the reason that the members of the Democratic