236
Breyer, J., concurring in judgment
process for the "all-white" primary. And, indeed, that is just what happened, though the tactic failed because the Supreme Court held one version of it, the Jaybird Association straw poll, unconstitutional. Terry v. Adams, 345 U. S. 461 (1953).
In 1965, Congress knew this history well, see, e. g., H. R. Rep. No. 439, 89th Cong., 1st Sess., pp. 6-22 (noting White Primary Cases and discussing failure of case-by-case enforcement of Fifteenth Amendment); S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3 (1965) (same); South Carolina v. Katzenbach, 383 U. S. 301, 308-315 (1966) (summarizing legislative history), and it knew more besides. It knew that Mississippi had just sent to the Democratic National Convention an "all-white" delegation, selected in a process of party precinct meetings, caucuses, and conventions from which "Negroes" were excluded. See, e. g., Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., pp. 456-457 (1965) (testimony of Rep. Bingham) (hereafter H. R. 6400 Hearings). How is it possible that a Congress, knowing this obvious history, would have wanted to enact a "voting rights" law containing a major and obvious loophole that would allow such practices to continue, thereby threatening to destroy in practice the very promise of elementary fairness that the Act held out?
The answer is that Congress did not want to enact a statute with that loophole, and it did not do so. That is why Representative Bingham said, in offering the amendment that brought voting for "party office" within the Act, see 42 U. S. C. § 1973l(c)(1) (1988 ed.), that
"to be most effective, [the Act] should include express coverage of party functions which directly, or indirectly, affect the primary or general elections in any State." H. R. 6400 Hearings, at 457.
See also ibid. (explaining proposal as covering "political party meetings, councils, conventions, and referendums
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