Excerpted From: Marc T. Treadwell, “When Did African Americans Get the Right to Vote in Georgia?”, 75 Mercer Law Review 497 (Winter, 2024) (158 Footnotes) (Full Document)

MarcTreadwellI often pose to my third-year law students the question that is the title of this Article. I can see in their faces that they think it's a trick question. And it is. The obvious answer--the post-Civil War Fifteenth Amendment guaranteed citizens of all races the right to vote--surely cannot be the answer I'm looking for. The best response I have received so far to my trick question came not from a law student but rather from a high school junior. I sprung the question on her and her fellow students as we sat in the courtroom where the answer to my question can be found. Her retort--“male or female?”--assuaged somewhat my concerns over civics education and revealed a flaw in my question. Female suffrage came decades after the Civil War. So here I add two words to my question to make it more clear and less tricky: When did all African Americans really get the right to vote in Georgia? Even when cleaned up few know the answer.

On July 4, 1944, Primus King, a Columbus barber and part-time preacher, walked into the Muscogee County Courthouse to vote in the Democratic primary election. Primus King was Black. As he entered the courthouse, a detective grabbed him and asked, “[W]hat in the hell are you doin' n _____?” King responded that he intended to vote in the Democratic primary. The detective told him “ain't no n _____ votin' here today.” The detective's declaration, vulgar as it was, was correct. The Democratic Party allowed only white Georgians to vote in its primaries. King left the courthouse with several detectives following him. Although scared (“those detectives would kill you, mean”), King kept a level head. He told one of the detectives that's “[a] nice looking gray suit you got on,” and that seemed to calm things down. King then walked three blocks to “the lawyer's office.”

The lawyer was Oscar D. Smith, Sr., who had agreed to assist in a challenge to the practice of denying African Americans the right to vote in primary elections. On August 22, 1944, Smith, who would be joined by Macon attorney Harry Strozier, filed a complaint on behalf of King in the United States District Court for the Middle District of Georgia, contending that the white primary violated King's constitutional rights. The defendants were the members of the Muscogee County Democratic Executive Committee. They would be represented by noted Macon constitutional lawyer Charles Bloch, a staunch states' rights advocate, and his partner, Ellsworth Hall, Jr.

In a 1973 interview, King described a telephone call he received as news of his lawsuit spread:

An old cracker called me and said: “Are you the [n-word] that caused so much trouble about this voting around here in the white primary?” I say: “I'm not the [n-word], sir, but I'm Primus King.” He said: “You must want to be put in the river.” I said: “Well, they've put so many negroes in the river for nothing, I'm willin' to go in there for something!” He hung the phone (laughs). So then the thing was on the way then, we had the trial in Macon, [before] Judge [T. Hoyt] Davis in Macon.

Before discussing that trial, a more basic issue needs some discussion. How was it possible that a Georgia citizen in 1944 could be denied the right to vote solely and expressly because of his race? The Civil War amendments to the Constitution seemed clear. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment barred any state from abridging the privileges or immunities of citizens, guaranteed citizens due process of law, and barred states from denying citizens the equal protection of law. The Fifteenth Amendment barred states from denying citizens the right to vote on account of race, color, or previous condition of servitude. The amendments granted Congress broad power to enforce these new rights. What had happened to those amendments and laws? The answer is the United States Supreme Court.

Immediately following the Civil War, President Andrew Johnson took a lenient approach to “restor[ing]” the states that had rebelled against the Union. Johnson authorized pardons for most white southerners if they would swear allegiance to the United States and disclaim any “right or title to slaves[.]” During the short-lived period of Presidential Reconstruction, the southern states managed their internal affairs with little interference. Taking advantage of Johnson's leniency, southern legislators began enacting “Black Codes,” laws that severely restricted the rights of freedmen. In short, it seemed the postbellum South would look much like the antebellum South.

This did not sit well with Republicans in Congress. Although most southern states had met Johnson's requirements for readmission to the Union by the time the 39th Congress convened in the fall of 1865, the House refused to seat southern delegations. In response to the Black Codes, Congress passed the Civil Rights Act of 1866 President Johnson's veto. In the 1866 Congressional elections, Republicans increased their majorities in Congress, giving them the power to set the terms of Reconstruction. Thus, when southern states refused to ratify the Fourteenth Amendment, Congress simply required ratification as a condition to representation in Congress. The Amendment was then promptly adopted. In 1870, when most of the southern states were controlled by reconstruction Republicans, the states ratified the Fifteenth Amendment. Congress supplemented these amendments with enforcement legislation. For example, the Force Acts, or Ku Klux Klan (KKK) Acts, extended federal protection for Black suffrage and authorized the use of federal troops to combat the Klan's intimidation of former slaves.

Unpacking the angst of Reconstruction is far beyond the scope of this Article and the abilities of its Author. But this much can be said--voters and Congress had put in place measures that should have guaranteed the core civil rights of the country's formerly enslaved citizens, most notably the right to vote. But if Reconstruction is to be judged by whether the Constitutional rights of the formerly enslaved were actually protected, Reconstruction was a dismal and abject failure.

The “gutt[ing]” of those rights began in 1873 with a group of cases, now called the Slaughter-House Cases, which had nothing to do with race. The City of New Orleans, in the exercise of what today would be called its police powers, enacted ordinances confining slaughterhouses to particular locations. New Orleans's butchers contended that the law deprived them of the privileges and immunities of citizenship guaranteed by the new Fourteenth Amendment. Although the Supreme Court at the time was dominated by Republican-appointed Justices, it seems that those Justices did not share the views of the Republicans in Congress. Ignoring, many have argued, the text of the Fourteenth Amendment, the Court held that the Fourteenth Amendment did not protect a state citizen from the legislative power of his state. Of course, the Fourteenth Amendment had to mean something, and the Court concluded that it applied only to the privileges and immunities of federal citizenship. As dissenting Justice Stephen Field noted, the majority opinion rendered the Fourteenth Amendment a “vain and idle enactment[.]” If the Amendment only protected against state infringement of federal rights specifically found in the Constitution, then the Fourteenth Amendment did little more than protect the right to run for federal office, the right to use navigable waterways, and the right to be safe from piracy on the high seas.

Generally, despite some revisionist efforts, the Slaughter-House Cases are seen as an early example of judicial activism--surely, the argument goes, the “founders” of the Privileges and Immunities Clause were not concerned with the Freedmen's rights to be safe from pirates. But the Supreme Court had just begun. On Easter Sunday, 1873, white militiamen attacked Republican Freedmen at the courthouse in Colfax, Louisiana. Estimates of Black deaths range from 100 to 280, many of whom died after they were captured. Federal authorities charged several of the militiamen with violating the Enforcement Act of 1870, which, among other things, outlawed conspiracies to deprive individuals of their constitutional rights. In 1876, the Supreme Court, in United States v. Cruikshank, overturned the convictions. Because the Privileges and Immunities Clause of the Fourteenth Amendment had been effectively nullified by the Slaughter-House Cases, the United States argued that the Amendment's Due Process and Equal Protection Clauses authorized Congress to provide for the prosecution of those who violated a state citizen's constitutional rights. The Supreme Court disagreed, holding that those clauses applied only to state action.

Next, in what has come to be called The Civil Rights Cases, the Supreme Court in 1883 struck down The Civil Rights Act of 1875, which barred discrimination in public facilities such as inns, trains, ferries, and theaters. An eight-justice majority held that Congress lacked constitutional authority to outlaw racial discrimination by private entities.

Today, the decision is best known for the dissenting opinion of Justice John Marshall Harlan. Harlan took issue with the Court's holding that Congress lacked authority to legislate in the field of public accommodations and services. Harlan first assailed the majority's, using again the modern term, judicial activism:

Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.

Harlan then proceeded to illustrate his point by turning to various pre-Civil War acts of Congress protecting the rights of slaveholders. In several cases, the Supreme Court, noting that the Constitution implicitly protected the rights of slaveholders, held that Congress had the authority to pass legislation requiring the return of slaves who had escaped to free states. Harlan saw no difference between the implied power of Congress to legislate the conduct of individuals to protect the rights of slaveholders and the power of Congress to legislate the conduct of private entities seeking to deprive freed slaves of their new constitutional rights. This was particularly true, Harlan argued, when Congress confined legislative power to operations closely tied to public services. Railroads, though privately-owned, were by law public highways; and it was an appropriate function of government to ensure that the railroads were available for public conveyance. Innkeepers too had long been recognized to provide “a sort of public serv[ice]” that they could not deny to the public. In short, if discrimination were permitted in these public operations,

It seems to me that ... a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.

Given the Supreme Court's limited view of the expanse of the Civil War amendments and Congress's power to enforce them, state legislatures came to realize that even discriminatory state action was possible. Most notably, the Louisiana legislature enacted in 1890 legislation requiring railroads to “provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations[.]” A group of prominent New Orleans' residents, with the collusion of the railroad industry (which was not particularly pleased with the law either), conceived a plan to challenge the law. Homer Plessy, an octoroon whose “colored blood was not discernible in him,” purchased a first-class ticket on the East Louisiana Railway. When he refused to leave his seat in the white coach, he was arrested, and the case of Plessy v. Ferguson began.

Plessy contended that Louisiana's “separate but equal” laws violated the Thirteenth and Fourteenth Amendments. Seven justices of the Supreme Court disagreed. Other than its holding, nothing in the majority opinion has proved to be particularly memorable. Its tone is illustrated by Justice Brown's rejection of the argument that there was anything inherently wrong with segregation.

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Justice Harlan's dissent, his “great dissent,” on the other hand, is well known. He made clear the pernicious nature and effect of the principle established by the majority's ruling. If a state could confine blacks to separate railroad cars, they could also require blacks to use one side of the street and whites the other. States could separate Protestants from  Catholics and native from naturalized citizens. Harlan could not square this with the Constitution.

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

[. . .]

So, the answer to the question is that African Americans got the right to vote in 1946. Tens of thousands of Georgia's Black citizens, newly enfranchised by King v. Chapman, went to the polls in the 1946 gubernatorial primary and their votes helped deliver a popular vote victory to a reform candidate. Although the county unit system nullified that victory, the end of the white primary was the first step in has been called the South's second reconstruction. Judge Davis' ruling in Primus King's case should be remembered as one of the first steps in that fight for voting rights.

Somehow, the Democrats never paid Primus King his $100.00. In 1977, when King was seventy-six, someone realized the mistake, and the Muscogee County Democratic Executive Committee finally gave King a check for the $100.00 judgment, plus interest in the amount of $324.70.

Chief Judge of the United States District Court for the Middle District of Georgia. Valdosta State College (B.A., 1978); Mercer University School of Law (J.D., 1981). Member, State Bar of Georgia.