Following the end of Reconstruction, southern states began adopting legal restrictions to prevent African-Americans from voting. Although the U.S. Supreme Court struck down state laws that expressly banned African-Americans from voting, the Court allowed states to use other, ostensibly race-neutral means to disenfranchise African-Americans, such as the poll tax and onerous registration requirements. Following the Second World War, the two national parties struggled with how to address the fact that their southern parties were excluding African-Americans from the nomination process and sending all-white delegations to the national convention. The Democratic Party regularly seated all-white delegations from its southern wing. Only in 1964 did it warn its southern parties that they could no longer exclude African-Americans from party affairs. Meanwhile, in the Republican Party, “lily-white” party organizations gradually took over the southern Republican parties and similarly excluded or marginalized African-Americans in party affairs. As a result, even into the 1960s, African-Americans in the south were regularly excluded from the presidential nomination process in both parties.

The NAACP offered strategic litigation as an alternative to labor defense. It pursued that course in supporting challenges to primary elections from which African Americans were barred, and in attacking segregated education, the latter of which reached the Supreme Court in a case dealing with Missouri’s failure to offer a law school to its African American citizens.

The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process—which may include the primary elections that determine the nominees of the political parties—and the right of the parties to determine how to pick their nominees. This government-party axis affects all nominations of candidates for state and federal office.