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At the request of the Democratic National Committee, the U.S. Supreme Court on March 27 let stand a lower court ruling gutting the Voting Rights Act of 1965, affirming that the DNC is not subject to the Act, but can function as a ``private club.'' The case was brought by Lyndon H. LaRouche, Jr. and voters from Virginia, Louisiana, Texas, and Arizona in 1996, after Donald Fowler, then DNC chairman, ordered state Democratic parties to ``disregard'' votes cast for LaRouche in the Presidential primaries and caucuses, without first obtaining pre-clearance by the U.S. Department of Justice, as required by the Voting Rights Act.
In its ruling, the Supreme Court ignored the following amicus curiae (friend of the court) brief filed by former Congressman James Mann on behalf of more than 60 prominent Democratic Party officials and prominent members, who urged the court to back LaRouche's position.
For more information on the case, see
In the Supreme Court of the United States
October term, 1999
Lyndon H. LaRouche, Jr., Alex D. Promise, Charles
Shaw, Delores Whitaker, Nathaniel Sawyer, Joel Dejean,
Eloi Morales, and Maria Elena Leyna-Milton,
Appellants,
Donald L. Fowler as Chairman, Democratic National
Committee, James L. Brady as Chairman, Louisiana
Democratic Party, Louisiana Democratic Party, Louisiana
Democratic State Central Committee, Sue Wrenn, as Chairman
Virginia Democratic Party, Kenneth Geroe, as Chair of the
Virginia 2nd Congressional District Caucus, Virginia
Democratic Party, William White, as Chairman Texas
Democratic Party, Texas Democratic Party, Texas State
Democratic Party Executive Committee, Samuel Coppersmith
as Chairman Arizona Democratic Party, Arizona Democratic
Party, Arizona State Democratic Party Committee,
Appellees.
Pursuant to Rule 37.3 of this Court, the appended
list of Democratic Party Officials and Members
respectfully submit this brief amicus curiae in support
of Appellants.
As members and officials of the Democratic Party we
have a strong interest in the outcome of this case.
Throughout our nation's history, minority voters have been
victims of discrimination perpetrated under many rubrics,
including the employment of Democratic Party rules and
procedures. As officials and members of the Democratic
Party we have looked to the Voting Rights Act of 1965, as
a protection from such discriminatory rubrics, even when
perpetrated by officials of our own party.
This case strikes at the heart of the electoral
process itself: the right to vote and the right to have
that vote counted. An election has no meaning, if, either
a state, or a statutorily sanctioned political party can
unilaterally nullify the votes cast in that election.
Contrary to the argument of the Democratic National
Committee, the Democratic Party is not a mere private
club, with an absolute right to exclude anyone. The Party
rules at issue in this case impact the rights of
candidates and voters in elections in and the Party's
function as a public institution that is an integral part
of the electoral machinery of every state in the nation.
If our party changes its electoral rules for the
presidential nominating process or for primary processes
in any state, the Party should have no hesitancy in
submitting those rules for preclearance under Section 5 of
the Voting Rights Act. After all, it was our party which
fought for passage of these very provisions of the Act
after years of countenancing the very practices which the
Voting Rights Act attacks. Section 5 stands as a bulwark
against any practices which exclude minorities from the
electoral process, whether formulated by the Democratic
Party, the Republican Party, or any other party which is
similarly situated to control the nomination of major
candidates for public office, including the most important
office, that of President of the United States.
Accordingly, this case has substantial public interest. We
believe our perspective will complement the arguments of
Appellants and aid the Court in its consideration of the
issues.
If the history of the efforts to end discrimination
in voting in the United States tells us anything, it is
that, those who want to impede the right of some citizens
to vote, will resort to many different stratagems and
devices to accomplish that result. For nearly a century,
non-white voters were presented with one roadblock after
another in their efforts to exercise their right to vote.
In some cases, states passed laws that banned blacks from
voting in certain elections. When the federal courts
outlawed such obvious violations of the Fifteenth
Amendment, new methods were designed to prevent blacks
from voting. One of the most successful methods was to
shift the control of elections from the states, which were
subject to the plain terms of the 14th and 15th
Amendments, to the Democratic Party, which, it was argued,
had an inalienable First Amendment right to define itself
as all white. The White Primary Cases document the
history of this arrogant and abusive defiance of the U.S.
Constitution.
To end the seemingly endless resourcefulness through
which racial discrimination was being perpetuated,
Congress, after the extraordinary efforts of President
Lyndon Baines Johnson, passed the Voting Rights Act in
1965. Section 5 of the Act requires that any change in
voting be precleared for approval, in those jurisdictions
that have had a history of discrimination. In 1996, then
Democratic National Committee Chairman Donald Fowler
issued an edict ordering all state Democratic Parties to
disregard all votes cast for Lyndon H. LaRouche, Jr., in
the Democratic Party primaries for President of the United
States. Fowler's order and its subsequent implementation,
was not precleared by either the Democratic National
Committee, or the Democratic Parties in the covered
jurisdictions of Virginia, Louisiana, Texas and Arizona.
According to the pleadings and legal arguments in the
court below, the state parties were coerced into
implementing Chairman Fowler's edict, despite obvious
non-compliance with the Voting Rights Act. The state
parties were threatened that their delegations would not
be seated at the Democratic National Convention if the
votes of Democratic voters for LaRouche and the minority
delegates pledged to him were honored. The effect of
Fowler's order and its implementation was to
disenfranchise minority voters in those states who voted
for LaRouche or minority delegate candidates committed to
him and to deny the plaintiffs in this case the right to
be a candidate for office.
The district court's decision creates an obvious
loophole in the Voting Rights Act, by exempting National
Party rules from preclearance requirements, when the DNC
has the power to coerce state parties in covered
jurisdictions to implement such changes. By characterizing
as a merely private matter, rules changes and actions that
affect the electoral process over which the Democratic
Party has complete control, the district court has taken
us back to the bad old days of the Jaybird primaries of
Ft. Bend County Texas.
Our Party's full support of civil rights for all
citizens is a relatively recent event in our history. Few
individuals who support civil rights and know their
history would want to be associated with our Party's stand
on these issues, prior to the Presidency of Franklin
Delano Roosevelt. Even after President Roosevelt, sections
of our Party continued to advocate racial separatism and
inequality. This painful history includes a long chapter
in which the southern Democratic Parties sought to avoid
the legal and constitutional prohibitions against racial
discrimination by claiming that the Democratic Party was a
mere private aggregate of individuals akin to a private
club. Too many Democrats, fearful of losing votes and
elections, tolerated these practices.
The White Primary Cases detail how the Jaybird
Democratic clubs in Texas and similar private associations
were created by southern Democrats in order to pretend
that the Party was not a state actor subject to the
provisions of the 14th and 15th Amendments. Yet, the
Democratic Party, disguised as a ``private club''
simultaneously controlled all the actual levers to
political power. Morse v. Republican Party of Virginia,
517 U.S., 186, pp. 192-193, 204-205 (1996). As was noted
in Terry v. Adams, 345 U.S. 461, 469 (1953):
It was claimed that these private Democratic clubs
could exclude minorities because as private associations
they had an absolute First Amendment right to define
themselves and exclude whoever they wished. This radical
view of the First Amendment was fully articulated by Mr.
Justice McReynolds in Nixon v. Condon, 286 U.S. 73, 104
(1932), where he argued that it was ``essential to free
government,'' and in no sense evil, because ``white men
may organize,'' ``Blacks may do likewise,'' ``a woman's
party may exclude males.'' In Grovey v. Townsend, 295
U.S. 45 (1935), the Supreme Court fully endorsed this
reasoning and allowed the White Primary system to
continue. Our courts did not finally repudiate the
``private club rationale until equitable ideas prevailed
over artificial legal constructs in Smith v. Allright,
321 U.S. 649 (1944), Terry v. Adams, 345 U.S., 461
(1953), and Terry's predecessor, Rice v. Elmore, 165
F.2d 387 (4th Cir. 1947). Rice instructed the Democratic
Party of South Carolina that the fundamental error in
their position consisted:
It is unfortunate that our party did not fully
embrace the cause of equal justice for all and with it,
the idea of doing right no matter what the apparent
consequences for pragmatic politics, until after the
shameful episode in which the Mississippi Freedom
Democratic Party was excluded from our 1964 convention.
The exclusion of the Mississippi Freedom Democrats led
Representative Jonathan Bingham to make absolutely clear
on the Congressional Record in 1965 that in passing the
Voting Rights Act, Congress fully intended to bring the
electoral nominating practices of political parties under
its coverage. Morse, 517 U.S. at 208, 236, Hearings Before
the Committee on the Judiciary, H.R. 6400, March 25, 1965
pp. 456-457. As Justice Breyer stated in Morse, anything
less than Voting Rights Act coverage of party nominating
activities would ``open a loophole in the statute the size
of a mountain.'' Morse, 517 U.S. at 235.
In Cousins v. Wigoda, 419 U.S. 477 (1975), and
Democratic Party of U.S. v. Wisconsin, 450 U.S. 107
(1981), our party argued that its rules governing the
nominating process should supersede state law when state
law allowed Republicans to vote in Democratic Party
primaries (Democratic Party of U.S. v. Wisconsin) or
when state law allowed a delegation to be seated at the
Democratic Party convention which did not include
sufficient minority participation under our Rules
promoting an open party (Cousins). The Democratic
National Committees' use of those precedents in this case
seriously distorts them. Those cases do not stand for the
proposition that the Democratic National Committee's
Chairman may nullify minority votes in a Democratic
primary election because he does not like the politics of
the candidate chosen by the minority voters. Those cases
also do not stand for the proposition that the First
Amendment grants more protection to the institutionalized
and publicly funded Democratic Party than it does to the
minority and other voters who belong to that Party. In
fact, the actions of Chairman Fowler against Appellants
LaRouche and minority voters committed to his candidacy
are directly contrary to our Party's rules calling for an
Open Party and stating that discrimination on grounds of
philosophical viewpoint are strictly forbidden. See e.g.
1996 Democratic Party Delegate Selection Rule 4, set forth
in the Appendix to Appellants Brief.
The changes in voting and candidacy requirements in
this case affect the basic process by which the President
of the United States is elected. The district court's
endorsement of the DNC's position that the President of
the United States is nominated in purely private process,
free from the results of state authorized elections and
caucuses is exactly what was found unconstitutional about
the Jaybird primaries in Terry v. Allen. There, the real
election took place in the private Jaybird club rendering
the state run primary election meaningless. Fowler's edict
to state parties to disregard the results of state
authorized primaries and caucuses, and the district
court's sanction of that action, has given the Jaybirds
new wings. Further, by creating a sanctuary from the
Voting Rights Act in national Party rules, the district
court has created a paradoxical situation. Changes in
voting and candidacy requirements, such as those in this
case, clearly require preclearance when implemented in
covered jurisdictions. However, under the district court's
ruling, the Democratic Party can evade the preclearance
requirement, by promulgating those changes as national
Party rules. This gives the Democratic National Committee
the power to coerce state parties into violating state law
and the Voting Rights Act.
Contrary to Justice McReynolds and those who would
resurrect his arguments today, the gravamen of the First
Amendment is the right shared by voters and candidates to
speak, associate and campaign for public office, on an
even playing field. Williams v. Rhodes, 393 U.S. 23, 30
(1968), Anderson v. Celebreeze, 460 U.S. 780, 787
(1987), quoting Bullock v. Carter, 405 U.S. 134 (1972).
As then Chief Judge of the District of Columbia Circuit
Court Abner Mivka has noted ``[t]he government of any
democracy, let alone one shaped by the values of our
Constitution's first amendment, must avoid tilting the
electoral playing field, lest the democracy itself become
tarnished.'' Fulani v. Brady, 935 F.2d 1324, 1337 (D.C.
Cir. 1991). In this case, an entrenched political party
bureaucracy forgot these actual principles, essential to
free government, and jeopardized one of the most essential
features of the Voting Rights Act in the process: Section
5's requirement that political party rules which effect
voting must be precleared.
Section 5 of the Voting Rights Act clearly applies to
the political party rules at issue in this case and that
application is constitutional. The Democratic Party
Appellees arguments to the contrary are without merit and
the district court's decision endorsing those arguments
should be summarily reversed.
Democratic Party officials and members represented as
amicus curiae in support of Appellants:
Readings from the Executive Intelligence Review. Contact us
at:
american_almanac@yahoo.com.
No. 99-1212
Brief Amicus
Curiae of Democratic Party
Officials and Members in support of Appellants
- Interest of Amicus Curiae -
- Summary of argument -
- Argument -
The First
Amendment does not exempt the
Democratic Party from Section 5 of the Voting Rights
Act
Quite evidently the Jaybird Democratic
Association operates as an auxillary of the local
Democratic Party organization selecting its nominees and
using its machinery for carrying out an admitted design of
destroying the weight and effect of Negro ballots in Fort
Bend County. To be sure the Democratic Primary and the
general election are nominally open to the colored
elector. But his must be an empty vote cast after the real
decisions are made.
in the premise that a political party is a
mere private aggregation of individuals, like a country
club, and the primary is a mere piece of party machinery
... the party may, indeed, have been a mere private
aggregation of individuals in the early days of the
Republic, but with the passage of years political parties
have become in effect state institutions, governmental
agencies through which sovereign power is exercised by the
people.
- Conclusion -
- Signed -
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