Branton v. State

When the U.S. Supreme Court declared in 1944 that Southern states could no longer bar African Americans from voting in party primaries because it violated the U.S. Constitution, Arkansas legislators and Democratic Party officials set about to thwart the expected flood of new voters in the primaries. These steps, including loyalty oaths, produced so much confusion at the polls in 1946 that they were abandoned, and Black voters surged to the polls for the first time in the Democratic primaries of 1948. The white Democratic-led response resulted in the criminal investigation, prosecution, and conviction of a young civil rights advocate who later became one of the South’s most renowned civil rights lawyers. The Arkansas Supreme Court case upholding the conviction of Wiley A. Branton Sr., Branton v. State (214 Ark. 861), would be viewed historically as an absurdity, but it was not overturned by the U.S. Supreme Court.

Like other Southern states, Arkansas adopted the “white primary” in the 1890s as the state overhauled laws governing commerce, transportation, and elections to preserve racial segregation. Black would-be voters were effectively disfranchised because all elections for public office were functionally decided in the Democratic Party primaries. So few people voted for Republicans, the party of Abraham Lincoln, that they rarely fielded candidates for anything but the highest offices, such as governor or senator. Other schemes to deter Black voting, such as the requirement that voters pay a poll tax every year and bring the receipt to the polls in case an election judge asked to see it, effectively barred non-whites from the political life of the state for nearly half a century.

Courts, including the U.S. Supreme Court, had upheld the whites-only voting policy because a political party was considered a private association and thus could dictate who its participants could be in any state. In 1944, however, the Supreme Court reversed the doctrine (Smith v. Allright, 321 U.S. 649, 1944) and held that Texas’s ban on Black voting in the Democratic primaries violated African Americans’ rights under the Fourteenth Amendment. Other states also had to open their primaries to everyone, although poll taxes and other steps to deter Black voting remained legal for another twenty years. Arkansas took several steps to thwart Black voting in its Democratic primaries, such as oaths that the voter had never voted for a Republican and that the voter supported all the principles promulgated by the Arkansas Constitution, including racial segregation. Those were scrapped after the bedlam at polling places in 1946.

Black voting swelled at the polls in 1948 and contributed to the election of Sidney McMath, a World War II U.S. Marine hero and political reformer who was the prosecuting attorney in Garland County. In Jefferson County, where Black voting was heavy and McMath won by a wide margin (owing primarily to the surge in Black voters), the political leaders set out to prove that fraud helped McMath carry the county.

A grand jury assembled by the circuit court finally seized upon the voting advocacy of Branton, a twenty-four-year-old graduate of Arkansas AM&N College (now the University of Arkansas at Pine Bluff) and a World War II veteran. It summoned Branton to explain his efforts to get Black residents to purchase poll taxes for the election and to persuade them to vote. On the advice of his attorney, W. Harold Flowers, Branton refused to answer the questions. The prosecuting attorney maintained that Branton’s aggressive efforts to educate people on voting in the Democratic primary amounted to intimidating voters, which was prohibited by a state law enacted in 1935.

Branton was indicted, tried, convicted, and fined $200. He appealed his conviction to the state Supreme Court. A week before the August primary, Branton had met with a number of people at the Mount Zion Church in Pine Bluff and handed out mimeographed sheets showing all the races that would be on the ballot in the county, including city and county offices. Little boxes appeared beside the names, as they would on the ballots voters would get at the polls. Branton had pencils and showed people how they would mark the ballot properly so that it would be counted. At the trial, the prosecutor maintained that Branton obviously was telling people who they should vote for, such as Sid McMath, which the prosecutor said amounted to intimidation.

The 1935 law that Branton was charged with violating was directed partly at illegal ballots and ballot stuffing. The act said it was illegal to print ballots and circulate them at the polling place or elsewhere, obviously intending to prevent the stuffing of ballot boxes by people who picked up a ballot, marked it, and then stuffed extra ballots in the ballot box along with the official one—a not uncommon practice at the time. The state Supreme Court majority seized on the illegal-ballot concept and asserted that the rough mimeograph sheets that Branton had handed out at the church a week before the election had to be considered official ballots, that making them was an illegal act, and that showing people how to mark a ballot was intimidation.

Justice Ed F. McFaddin, the court’s most conservative justice for all his mid-century years on the state Supreme Court, wrote the majority opinion. Two justices, George Rose Smith and J. Seaborn Holt, recused, presumably because they were up for reelection and their names were on the ballot. The court’s vote was four to one. McFaddin was an ardent segregationist, as his opinions on the legal battles arising from later school desegregation cases would demonstrate.

McFaddin’s opinion upholding Branton’s conviction began with a 900-word dissertation on the definition of “ballot,” citing several scholarly definitions of the word and concluding that Branton’s crude sheets were indeed “ballots,” although not necessarily official ones or even looking like an official ballot, and thus a crime when the young man handed them out at the church a week before the election.

Chief Justice Griffin Smith, the lone dissenter, was dismissive of the majority opinion. He began by noting that Branton’s sheets were handed out at a “meeting of Negroes,” a reference that McFaddin never made. A casual glance at a picture of one of Branton’s sheets made it obvious that it could never be confused with the official ballot, Justice Smith wrote, and they were passed out at a meeting a week before the election. “They were so obviously not ballots that any election official would have observed their insufficiency,” he wrote.

If the statute was intended to prevent anyone from making a list of candidates in printed form and arranging them in a sequence similar to those on the official election ballot, which Smith said he doubted, then his colleagues should promptly declare that statute a violation of the Fourteenth Amendment to the U.S. Constitution and Article II, Section 6 of the Arkansas Constitution. Branton, Justice Smith said, was entitled to a full acquittal and the court should give it to him.

The U.S. Supreme Court declined to review the case.

Branton enrolled in 1950 at the University of Arkansas School of Law, where he had helped a friend enroll as the first Black student two years earlier. He was the attorney for the NAACP Legal Defense Fund in the lawsuit to integrate Little Rock’s public schools (Cooper v. Aaron), which was heard and affirmed by the U.S. Supreme Court in 1958, and was involved in a number of other civil rights cases for the next twenty years. He became dean of the Howard University School of Law in 1977 and died in 1988.

For additional information:
Branton v. State, Arkansas Supreme Court (214 Ark. 861, 1948).

Kilpatrick, Judith. “Wiley Austin Branton and the Voting Rights Struggle.” University of Arkansas at Little Rock Law Review 26, no. 4 (2004).

Ernest Dumas
Little Rock, Arkansas


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