In the Jim Crow era, Southern whites used two main legal strategies to prevent African Americans from voting. The first involved using poll taxes, literacy tests and other tactics to disqualify blacks. The second was the so-called "white primary," which the Democratic Party used to keep blacks out. Private organizations that barred African Americans would nominate whites to run for elected office. Technically, blacks could still vote in the elections, but because all the candidates were nominated in the white primaries, blacks could never vote for a candidate of their choosing.
African Americans in Texas, with the help of the NAACP, began challenging the state's white primary in the early 1920s, arguing that the system violated the 14th and 15th Amendments guaranteeing equal protection under the law and barring states from denying people the right to vote based on race. It took twenty years, but Thurgood Marshall and the NAACP Legal Defense Fund finally prevailed. In 1944, the Supreme Court ruled in Smith v. Allwright that white primaries were unconstitutional. Though an additional decade of litigation was required to settle a spate of challenges to the ruling, white primaries were all but dead by 1948.
After the ruling, tens of thousands of blacks registered to vote. Thurgood Marshall was heartened to see how quickly other states fell into line once the Texas primary was outlawed. But Southern whites continued to keep blacks away from the polls with taxes, literacy tests and a sure-fire way to keep blacks home: violence. Though Thurgood Marshall and his colleagues won an impressive number of cases securing blacks the right to vote, they still could do little to protect the safety of those who tried to exercise it. Nevertheless, Thurgood Marshall considered Smith v. Allwright one his most important legal victories.
Marshall: Well, the primary case in Texas, Smith against Allwright was, I think, the first real big one I had. There had been four previous cases, and Negroes still weren't voting in the primary, and we started that one, Smith against Allwright, and the Negroes who contributed [money] to it in Texas told me, they said, "We want you to know, this is the last go-round; we've contributed four times before, if you lose this one, forget about it."
So that put a little weight on me, too, and at the trial, before a Republican judge - I've forgotten his name - in Houston, it was delayed several times. Wasn't his fault, wasn't anybody else's fault, and eventually we tried it, and we lost it. And then we went to the Court of Appeals, the Fifth Circuit, in Fort Worth, Texas, and you usually have a half hour to an hour of argument. And when I walked in that morning, Chief Judge [Joseph C.] Hutcheson [Jr.], a very, very capable judge, one of the best-but he drafted the first white primary law to keep Negroes out, so I mean, I knew where his heart was.
When we started the argument, I said, "I think I'm running out of time." And Judge Hutcheson said, "Oh, no. We've got the whole day. Feel at ease." And he started in on his questioning, and he questioned me about qualifications for voters, step by step, back, back, back, and I kept giving him the answers. Eventually he asked me a question, and I said, "Now, Judge Hutcheson, with all due respect, I don't know anything better than the truth, and I have to tell you what the truth is."
He says, "What's that?"
I said, "You're talking about the Justinian Code, aren't you?"
He said, "Yeah. Of course."
I said, "Well, I just want to warn you that I can answer that, but that's as far as I go."
He said, "Join the club. That's as far as I go."
He had me on my feet for three hours, and he ruled against me. Then I said,
"Well, I'm going to the Supreme Court."
He said, "Of course."
And I know, I saw him a couple of months later, in the Court of Appeals of New Orleans, and he said, "Have you filed your petition for certiorari yet?"
I said, "No, sir."
He said, "Well, why don't you hurry up? You know you're going to win."
I remember thinking then, I'd go ahead, and we brought it up here, and we did; we won it.
That case, that started the whole voting of the Negroes in the South. And after that, thanks to former Justice Clark, Tom Clark, who was then Attorney General, he told the other states that they'd better fall in line or he'd whack them one. And they all fell in line except Georgia and South Carolina, and we had to file two more cases.
And I know, in South Carolina, when we won the right to vote there, to register, and if I remember correctly, we put something like eighty thousand Negroes on the books in a ten-day period. And they don't have that many now. I remember, in Charleston, a story a newspaper boy told me, the Negroes all dressed up to register, to vote in the primary. They put on their Sunday clothes. It was a big day.
And they were in this line, which this newspaper reporter saw, and there were a couple of white people pushing, you know, who wanted to get ahead. And these Negroes, of course, they'd been there waiting. And so when these white people kept pushing, this Negro woman turned around to the man behind her and she said, "You seem to be in a hurry. So you just go right ahead. You know, we been waiting a long time. We don't mind waiting a little longer."
[Laughs] She said, "We don't mind waiting a little longer."