Trump v. Anderson: Marty Lederman’s Fundamental Mistake of Law

Bruce Ackerman

I have learned a lot from Marty Lederman over the years, so I was surprised to find that Part 1 of his “User’s Guide to Trump v. Anderson” is based on a serious mistake. He claims that  “a state does not have any legal authority--nor, to my knowledge, has any state ever claimed such power--to enjoin a disqualified federal official from holding office, or to remove him or her from such office.” I agree, but it does not follow, as he seems to suppose, that this principle also precludes Colorado from granting its Secretary of State the authority to exclude Trump from the state’s Republican primary if he is disqualified from the Presidency by the Fourteenth Amendment.  

To the contrary, the U.S. Supreme Court explicitly considered, and rejected, Lederman’s claim in Smith v. Allwright, 321 U.S. 649 (1944) – otherwise known as the “white primary” case. This involved a Texas statute, authorizing the state’s Democratic Party to determine its own membership. Acting under this statutory authorization, the state party convention “resolved that all white citizens of the State of Texas who are qualified to vote under the Constitution and laws of the State shall be eligible to membership in the Democratic party and, as such, entitled to participate in its deliberations." 321 US 657-58.

When voting officials excluded blacks from the Texas Democratic primary, the Party defended its decision before the Fifth Circuit by making precisely Lederman’s argument – which affirmed the Party’s position on the basis of Grovey v. Townsend, 295 U.S. 45 (1935), which unanimously endorsed Lederman’s view. 

Even though only nine years had elapsed, however, the Supreme Court took up Smith v. Alright in 1944 to repudiate the position adopted by Grovey in 1935. Only Justice Roberts dissented. Justice Reed wrote the Court’s opinion for seven Justices (with Frankfurter concurring separately). Reed states the Democratic Party’s case for continuing its white primaries in the following way:

Respondents appeared in the District Court and the Circuit Court of Appeals and defended on the ground that the Democratic party of Texas is a voluntary organization, with members banded together for the purpose of selecting individuals of the group representing the common political beliefs as candidates in the general election. As such a voluntary organization, it was claimed, the Democratic party is free to select its own membership and limit to whites participation in the party primary. Such action, the answer asserted, does not violate the Fourteenth, Fifteenth or Seventeenth Amendment, as officers of government cannot be chosen at primaries, and the Amendments are applicable only to general elections, where governmental officers are actually elected. 321 US 658-59 (emphasis supplied). 

Reed then explicitly rejects the Lederman view, in a discussion which concludes:

The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied.

The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state. In reaching this conclusion, we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day. This is particularly true when the decision believed erroneous is the application of a constitutional principle, rather than an interpretation of the Constitution to extract the principle itself.

321 US at 666. (emphasis supplied). 

To be sure, Southern Democrats deployed other means of suppression to exclude blacks from white primaries until the Civil Rights Revolution enabled Lyndon Johnson to gain decisive Congressional support for the Voting Rights Act. Nonetheless, Smith v. Allwright established the fundamental constitutional principle that, among many other things,  serves as the decisive constitutional foundation of the Colorado Supreme Court’s vindication of the Disqualification Clause of the Fourteenth Amendment.

Or so it seems to me.