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Waring excerpt 3: A declaration of war

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Editor’s note: This is the third of five excerpts from "In Darkest South Carolina," the new book from Post and Courier columnist Brian Hicks. The story of Charleston Judge J. Waties Waring and his plot that culminated in the Supreme Court decision Brown v. Board of Education, this excerpt focuses on a lawsuit that argues black voters should be allowed to vote in the state’s Democratic primary. "In Darkest South Carolina" is available in local book stores, The Post and Courier offices at 134 Columbus St., or from eveningpostbooks.com. Call 843-958-7367 for details.

In August 1946, a man named George Elmore unsuccessfully tried to vote in the South Carolina Democratic primary.

Elmore, a 41-year-old Columbia businessman, cab driver and member of the Richland County Progressive Democrats, knew exactly what he was doing. He was African American, after all, and barely two years had passed since Gov. Olin Johnston called the Legislature into special session to ensure no black person would vote in the party’s primary.

Elmore’s father had been Jewish and, as a result, his skin was so light he’d been permitted to vote in earlier primaries. This time he was stopped. Perhaps he was recognized — he owned a five-and-dime store on Gervais Street, as well as a couple of liquor stores that did business with white vendors. He was a popular, well-respected member of the community. But no matter what anyone thought of him personally, poll workers would not give him a ballot. Within days, he reported his treatment to the state branch of the NAACP.

The lawsuit, filed on Feb. 21, 1947, argued that the General Assembly’s repeal of all primary election laws actually changed nothing. The Democratic Party continued to perform the “same governmental function in conducting and supervising primary elections.” Excluding black citizens from the primaries, the suit argued, violated their constitutional rights. The NAACP asked the federal court for an injunction to stop this practice.

***

U.S. District Court Judge Waties Waring had studied voting-rights lawsuits since South Carolina’s hysterical reaction to Smith v. Allwright. The Supreme Court had ruled that a black man in Texas had the constitutional right to vote in that state's all-white Democratic primary. In response, then-Gov. Johnston admitted his intentions to preserve a whites-only Democratic primary in South Carolina. Lawmakers were even brazen enough to say their action had inoculated the party from federal meddling. But Waring disagreed with that assessment. Based on every case he’d read, the judge knew South Carolina was on very shaky legal ground.

“I felt that my state was backward, that it had been blind to decency and right, and that somebody had to … face the issue,” Waring said.

Social change was coming, Waring believed, if not in the next year, certainly within the next decade. He saw Elmore v. Rice (the defendant was Richland County's Democratic Party chairman) as a unique opportunity to make a difference in the lives of millions of people — as only a federal judge could. But Waring realized the lives most likely to be affected, at least at first, would be his and Elizabeth’s. So they talked about the case, and what it would mean for them.

Tackling such a controversial and sensitive issue would have repercussions. Although their social calendar in Charleston was slim, the Warings were still regulars at cocktail parties and dinners in Columbia and Florence. And even though people suspected his growing liberalism — the judge said people often looked at him “queer” and wrote off his views as “you can’t expect everybody to think with us” — this would be different. None of his other decisions had any real impact on the lives of most white people.

“There’s a terrible feeling in this state about the racial matter, and this Elmore case is going to bring it to a head. ... We may have to pay a heavy penalty. I don’t know what’ll happen,” Waring told Elizabeth. “I haven’t got to take this case, it isn’t mandatory. I think it’s my duty to take it. Somebody else might not present the issue clearly. The case can be decided the other way if you conceal some of the facts and don’t have a complete picture.”

From the start, Waring believed there was only one correct ruling in Elmore — and it would destroy a power structure in place since the days of Ben Tillman. If people wanted to shun him for that, he could live with it. But the judge was no fool. He knew what was at stake, and the people he’d known his entire life would never accept an all-out assault on white supremacy. To preserve their inherent advantage, and dominance of the state, they might even resort to violence.

Elizabeth had lived in South Carolina only a short time, but she understood. She’d watched the courtroom erupt in cheers when the police chief who maimed Army veteran Isaac Woodard in Batesburg was acquitted. But she had grown just as disgusted by prejudice as Waring, and supported him completely. They were in it together.

“I think you ought to do it and I think you ought to do it right,” she said. “I’m with you, start to finish. I think you ought to take it; we don’t know what’s going to happen if you don’t.”

***

In some ways, Waring’s ruling in Elmore only stated the obvious: The state repealed its primary election laws following the Allwright decision, yet allowed the system to continue exactly as it had before. He noted that the U.S. Supreme Court had ruled repeatedly that black citizens had a right to vote in other states’ primary elections. “I cannot see where the skies will fall if South Carolina is put in the same class with these and other states,” Waring wrote.

The judge decided there was no way to deliver the order without enraging the entire state’s power structure, so he didn’t even try. In his ruling, he said the governor, legislature and Democratic Party had tried to circumvent the laws and Constitution of the United States. And if there was any doubt Waring meant to sting the Democrats, it evaporated by the final page of the order. There, he had the audacity to cast aspersions on the state’s revered Confederate past.

“It is time for South Carolina to rejoin the Union,” Waring wrote.

The judge had not only issued a rebuke to the state’s ruling class, he had declared war.

Reach Brian Hicks at bhicks@postandcourier.com.