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  • The Battle for the Black Ballot: Smith v. Allwright and the Defeat of the Texas All-White Primary
  • Mark Tushnet
The Battle for the Black Ballot: Smith v. Allwright and the Defeat of the Texas All-White Primary. By Charles Zelden (Lawrence, University Press of Kansas, 2004) 156 pp. $29.95 cloth $12.95 paper

Zelden's The Battle for the Black Ballot is a short but detailed account of litigation challenging the primary elections, open only to whites, held by many state and local Democratic party organizations in the first half of the twentieth century. Books of this nature face three challenges: to provide the social and political background of the problem giving rise to the litigation, to describe the litigation's stages, and to explain in relatively nontechnical terms the litigation's legal basis—all in a reasonably compact space. Zelden meets the first two challenges well, and does a better than decent job with the third.

Zelden explains how the white primary solved problems that remained even after the disfranchisement of many African Americans. Disfranchising only African Americans patently violated the Fifteenth Amendment. Literacy tests and similar devices of disfranchisement were imperfect, eliminating some whites and not all African Americans from the voting rolls. African American voters sometimes were an appealing target population for politicians seeking to win close elections. Denying African Americans the right to vote in the only election that counted, the Democratic party primary, was an effective means by which white politicians could restrain the impulse to win a particular election at the cost of what the politicians believed were deeper values. Zelden does not explicitly allude to Ulysses and the Sirens, but his account fits well with standard stories about how meta-rules solve coordination problems.

Zelden also writes an effective narrative of the white primary litigation, which extended over several decades. He deploys, with a relatively light touch, Galanter's distinction between one-shot litigators and repeat players, whose long-term interests give them incentives to invest greater resources and develop expertise in specialized litigation.1 In Zelden's narrative, the litigation effort faltered when one-shotters controlled it, and succeeded when the National Association for the Advancement of Colored People, a quintessential repeat player, took charge of it. Zelden may overemphasize his theoretical framework in this instance. Some lawsuits brought by one-shotters succeeded, and, more important, the major victory over the white primary occurred in Smith v. Allwright (1944), when the Court had been transformed by President Franklin Roosevelt's appointments. The liberals whom Roosevelt appointed to uphold his New Deal legislation were also liberals on issues of race. The Court's reconstruction may well have mattered more to the outcome than who happened to control the litigation.

Zelden lays out the legal details effectively. His description of differences [End Page 311] between the Fifteenth Amendment's ban on racial exclusions from voting and the Fourteenth Amendment's guarantee of equal protection of the laws is thin, as is his discussion of why and how such nominally private entities as political parties might nonetheless be required to adopt nondiscriminatory membership rules. But Zelden's treatment of these difficult legal issues is certainly good enough for this book's purposes. Probably the only real omission is a discussion of how American legal realism affected the approach of justices to legal issues in the early 1940s, when they decided United States v. Classic (1941), which was not about race but provided the essential precedent for Smith v. Allwright.

Mark Tushnet
Harvard University Law School


1. Marc Galanter, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," Law & Society Review, IX (1974), 95–160.



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