SOUTHERN SUFFRAGE AMENDMENTS SINCE 1890
In 1890, a distinct departure was made in the development of the law of suffrage. For thirteen years, roughly speaking, the Negroes had been in a great measure disfranchised by the illegal means already referred to. According to the Constitutions and laws of the Southern States, the Negro had precisely the same right to vote as the white person. Yet he did not vote, or, if he voted, his ballot came to naught. The Southern white people, wearied of using underhand methods of eliminating the effect of Negro suffrage, turned to seek a method under the law to accomplish the same result. The Fifteenth Amendment seemed to offer an insuperable obstacle. The problem was how to evade this constitutional provision. Speaking of this difficulty, the Supreme Court of Mississippi[[709]] said: “Within the field of permissible action under the limitations proposed by the Federal Constitution, the Convention [the Constitutional Convention of Mississippi, 1890] swept the field of expedients to obstruct the exercise of suffrage by the Negro race. By reason of its previous condition of servitude and dependency, this race had acquired or accentuated certain peculiarities of habit, or temperament, and of character, which clearly distinguished it as a race from the whites. A patient, docile people; but careless, landless, migratory within certain limits, without forethought; and its criminal members given to furtive offences rather than the robust crimes of the whites. Restrained by the Federal Constitution from discriminating against the Negro race, the Convention discriminated against its characteristics and the offences to which its criminal members are prone.”
Beginning in 1890 the Southern States have, one by one, adopted new Constitutions or amended their old ones so as to change considerably the qualifications of voters. Suffrage amendments have been adopted by the Southern States in the following order: Mississippi,[[710]] 1890; South Carolina,[[711]] 1895; Louisiana,[[712]] 1898; North Carolina,[[713]] 1900; Alabama,[[714]] 1901; Virginia,[[715]] 1901; and Georgia,[[716]] 1908. Maryland[[717]] has made two separate attempts, one in 1905 and the other in 1909, to amend its Constitution, but has failed in both instances. Florida, Arkansas, Tennessee, and Texas have not made any constitutional changes in the matter of suffrage which might be called “Suffrage Amendments.”
The phrase, “the Suffrage Amendments in the South,” has been used so often that the idea prevails among those unfamiliar with the laws on the subject that suffrage qualifications in the Southern States are fundamentally different from those in other States. With the hope of making plain wherein suffrage laws in the South are similar to and wherein they differ from the corresponding laws of other States, a table of the qualifications of electors in all the States and Territories of the United States, including Alaska, Porto Rico, Hawaii, and the Philippines, is given (see pp. 322–339). The requirements for voters will be taken in the order given in the tables and considered with reference to the ways in which they lend themselves to race distinctions and discriminations.
Citizenship
In order to vote, one must be a citizen of the United States or an alien who has taken the formal step toward naturalization of declaring his intention to become a citizen, with the exception that, in a few States, an Indian who has severed his tribal relationship may vote. This suffrage qualification does not easily lend itself to race distinction or discrimination. It lies within the power of the United States, not of the States, to say what alien residents may become citizens.[[718]] If Congress says, as it does in the Chinese Exclusion Act,[[719]] that Chinese not natives of this country cannot become citizens, it follows that they cannot demand of a State the privilege of voting. At present, a statute[[720]] specially provides for the naturalization of aliens of African nativity and persons of African descent, requiring that the same rules shall apply to them as to free white persons.
The only case that has been found involving the citizenship of a Negro arose in Michigan in 1872.[[721]] A Negro, born in Canada of parents who had been slaves in Virginia but who had gone to Canada in 1834, went to Michigan at the age of twenty. The question was whether he was a citizen of the United States and, so, entitled to registration as a voter. The Supreme Court of the State held that, when his parents went to Canada, they were no longer under the jurisdiction of this country. The son was not born of citizens of the United States, nor was he born under the jurisdiction of the United States, and, therefore, was not a citizen of the United States.
The citizenship requirement in the Southern States is essentially the same as that in other States and cannot be said, in any way, to involve a race distinction.
Age
In all of the States and organized Territories an elector must be twenty-one years of age or over. In the Philippines the age limit is twenty-three. There seems to be no possible race distinction in the age requirement. It may be that, because of the less careful record of dates of birth among Negroes, more of that race are unable to prove that they are twenty-one years old; but this is only a question of evidence.
Sex
All except four of the States limit the suffrage to males. This requirement cannot possibly involve a race distinction.
Residence
All States and Territories require that the voter shall have resided for a certain length of time previous to the election in the particular State or Territory, in the County, and in the precinct, ward, town, or other political division in which he offers to vote. The residence in the State varies from three months to two years, in the County or its corresponding division from thirty days to one year, and in the precinct, ward, or town from ten days to one year. It is noticeable that in the Southern States the required residence is, as a rule, somewhat longer than in the other States. Alabama, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia all require a residence of two years in the State, while Rhode Island is the only State outside the South that requires a State residence of that length. Mississippi is the only State that requires a voter to be a resident of the precinct one year. Louisiana requires six months in the precinct, while thirty days is the favorite residence with the other States.
The greater term of residence required in the South may lend itself to race distinction in case one race is more migratory than the other. If, for instance, the Negro is more apt to move about from place to place than the white person, more Negroes than whites will be unable to satisfy the residence qualification.
Payment of Taxes
The following States require the payment of poll taxes as a prerequisite to voting: Alabama, Arkansas, Florida, Louisiana, North Carolina, South Carolina, and Tennessee. Of these Alabama, Arkansas, and North Carolina require the payment of the poll tax for only one year preceding the election; Florida, Louisiana, and Mississippi, for two years preceding; and Virginia, for three years preceding the election. Some States require payment of both property and poll taxes; and some, only the latter. The law of Delaware is that the voter must have paid a county tax within two years, assessed six months before the election, not specifying whether it is a poll or property tax. Georgia provides that all taxes legally required since 1877 must have been paid six months before the election. Pennsylvania requires the payment of a State or county tax within two years to be assessed two months and paid one month before the election. South Carolina demands, not only the payment of the poll tax, but of all taxes for the preceding year. In the Philippines, the elector must satisfy other tests or show payment of an annual tax of fifteen dollars.
The payment of taxes as a prerequisite to voting is not peculiar to the Southern States, such a requirement being found in Delaware, Pennsylvania, and the Philippines as well. The poll tax and the requirement of payment for more than the year next preceding the election are found mostly in the Southern States. In the Philippines alone, it appears, the payment of taxes is an alternative requirement; that is, if one cannot satisfy this qualification, he may, nevertheless, qualify under other tests; but in the States, he must not only show his payment of taxes but be qualified as well in other respects.
In two ways this qualification lends itself to race distinctions. In the first place, if Negroes are more shiftless and less inclined to pay their taxes than white people, more of them will be unable to satisfy this test. Secondly, if they are careless about preserving their tax receipts for one, two, or three successive years, they will be unable to prove the payment of taxes and, thereby, be disqualified to vote.
Ownership of Property
The next qualification may be said to be in a sense peculiar to the Southern States, yet not entirely so. In Rhode Island, one must own property worth one hundred and thirty-four dollars on which taxes of the preceding year have been paid or must pay an annual rental of seven dollars to be entitled to vote for city councillors and to vote on questions of finances. In Alaska, to be entitled to vote in municipal elections, one must be the owner of substantial property interests in the municipality. In the Philippines, the voter must be able to satisfy other tests or else be the owner of property assessed at two hundred and fifty dollars.
The property test in the Southern States is an alternative of the educational tests. That is, if the applicant cannot satisfy the educational test but can satisfy the property test, he may register and vote; or he may do so if he can satisfy the education but not the property test. Unless special mention is made at the time, this will be understood in the following discussion of these two qualifications. When it is said that such and such property or educational qualification is required, it is meant only that it is required in case its alternative cannot be satisfied.
In Alabama, the property requirement is that the applicant for registration be the owner or the husband of the owner of forty acres of land in the State in which they reside or of real or personal property worth three hundred dollars upon which taxes for the preceding year have been paid. In Georgia the requirement is forty acres of land in the State or five hundred dollars worth of property in the State. In Louisiana, the requirement is three hundred dollars worth of property and payment of the personal taxes. South Carolina prescribes three hundred dollars worth of property on which the taxes for the preceding year have been paid. Of the Southern States which have altered their suffrage laws since 1890, Mississippi, North Carolina, and Virginia have not provided any permanent property test.
The property qualifications cause the disfranchisement of more of one race than of the other only in so far as the first is more shiftless and more delinquent in the payment of taxes than the other. If the Negro is given the same opportunity as the white to acquire property, he has an equal opportunity to register under the property clause of the suffrage laws.
Educational Test
In no sense is the educational qualification peculiar to the Southern States. As early as 1855, Connecticut required of voters ability to read the State Constitution. The present requirement, as amended in 1897, is ability to read the Constitution and statutes of the State in English. In 1857, Massachusetts added as a prerequisite to voting ability to read the Constitution of the State in English and write one’s name. The Constitution of Wyoming of 1889 provides that the applicant for registration must be able to read the Constitution of the State. California, in 1894, required ability to read the Constitution in English and write one’s name. Similar requirements were made in Maine in 1893 and in Delaware in 1900. In the territorial possessions of the United States, a Hawaiian elector must read, speak, and write English or Hawaiian, and a Filipino must speak, read, and write English or Spanish. In the Philippines this qualification is an alternative of the ownership of property; in Hawaii and the States mentioned above the educational qualification is absolute.
In the Southern States now to be considered, it is to be remembered that the applicant must satisfy either the education or the property test, not both. In Alabama he must be able to read and write the Constitution of the United States in English unless physically disabled. In Georgia he must be able to read and write in English the Constitution of the United States or of Georgia, or if physically disabled from reading and writing, to “understand and give a reasonable interpretation” of the Constitution of the United States or of Georgia, when read to him. In Louisiana he must be able to read and write and must make his application for registration in his own handwriting. Mississippi requires that the applicant must be able to read or understand or reasonably interpret any part of the Constitution of the State. North Carolina requires ability to read and write the State Constitution in English; South Carolina requires also an ability to read and write the Constitution, but does not specify that the test must be in English. Virginia does not declare that the applicant must be able to read and write, but requires him to make his application for registration in his own handwriting, and prepare and deposit his ballot without aid. This does not apply to those registering under the “Grandfather Clause” to be considered later.
All States[[722]] and Territories, except Georgia, Missouri, New Jersey, North Carolina, South Carolina, and New Mexico have adopted a blanket official ballot which is, in effect, the requirement of an educational qualification for voting. By this system the State provides a uniform ballot containing the names of all persons of all parties to be voted for, and requires the voter to mark and deposit his own ballot. Where no party emblem—as the elephant, cock, or anvil—heads the list of candidates of a particular party, it is wellnigh impossible for one to mark his ballot properly unless he is able both to read and write.
The Southern States are more lenient in their educational tests than other States in allowing a person otherwise qualified to vote if he has either education or property; while in the latter he must have a certain amount of education no matter how much property he owns.
Educational qualifications easily permit race distinctions in several ways. In the first place, registration officers may give a difficult passage of the Constitution to a Negro, and a very easy passage to a white person, or vice versa. He may permit halting reading by one and require fluent reading by the other. He may let illegible scratching on paper suffice for the signature of one and require of the other a legible handwriting. But race discriminations in such cases rest with the officers; they do not have their basis in the law itself.
The educational clause of the proposed Maryland suffrage amendment, recently defeated at the polls by the voters of that State, restricted the right to vote to a “person who, in the presence of the officers of registration, shall, in his own handwriting, with pen and ink, without any aid, suggestion, or memorandum whatever addressed to him by any of the officers of registration, make application to register correctly, stating in such application his name, age, date, and place of birth; residence and occupation at the time and for the two years next preceding; the name or names of his employer or employers, if any, at the time and for the two years next preceding; and whether he has previously voted, and, if so, the State, county, city, and district, or precinct in which he voted last. Also the name in full of the President of the United States, of one of the Justices of the Supreme Court of the United States, of the Governor of Maryland, of one of the Judges of the Court of Appeals of Maryland, and of the Mayor of Baltimore City, if the applicant resides in Baltimore City, or of one of the County Commissioners of the County in which the applicant resides.” It is easy to see how race discriminations could have been made under this proposed amendment, but it need not be discussed inasmuch as it failed to become law.
“Grandfather Clauses”
The “Grandfather Clauses” are, in a real sense, peculiar to the Southern States, though there are a few somewhat similar provisions in other States. For instance, Illinois, by its Constitution of 1870, allowed those to vote who had the right to vote on April 1, 1848, provided, of course, they satisfied the age, sex, and residence qualifications. When Maine added its educational requirement in 1893, it provided that this qualification should not apply to anyone who had the right to vote in January, 1893, or to anyone sixty years of age at that time. Massachusetts had made a similar provision in 1857. The Constitution of Wyoming of 1889 had said that nothing in it, except the provisions about idiots, lunatics, and convicts, should be construed to deprive any one of the right to vote who had that right at the time of the adoption of the Constitution. New Hampshire does not allow paupers to vote, but it provides that one who served in the Rebellion and was honorably discharged shall not be disfranchised because he has received aid from the public. In the Philippines, one unable to satisfy the educational or property test, may, nevertheless, vote if he held a substantial office under the Spanish régime.
The principle of the “Grandfather Clause,” in short, is that one who is not able to satisfy either the educational or property tests may, nevertheless, continue to be a voter for life if he was a voter in 1867 or is an old soldier or the lineal descendant of such voter or soldier, provided he registers prior to a fixed date. Alabama permits all who served honorably in the forces of the United States in the War of 1812, the War with Mexico, any war with Indians, the War between the States, the War with Spain, or in the forces of the Confederate States or of the State during the War between the States and the lawful descendants of those and all who are of good character and who understand the duties and obligations of citizens under a republican form of government, to register before December 20, 1902. The clause in the Georgia Constitution is like that of Alabama, except that the privilege is extended to veterans of the Revolutionary War and their descendants, and the character and understanding clause is permanent. To take advantage of the “Grandfather Clause” in Georgia one must register before January 1, 1915. Louisiana provided that one entitled to vote in any State January 1, 1867, son or grandson of such a one twenty-one years old or over in 1898, or a foreigner naturalized before January 1, 1898, who had resided in the State five years preceding his application for registration, might register before September 1, 1898. North Carolina allowed one who had the right to vote on January 1, 1867, and the lineal descendant of such a one to be registered prior to December 1, 1908. Before January 1, 1898, one could register in South Carolina who could read the Constitution of the State or understand and explain it. In Virginia one might register up to 1904 who, before 1902, served in the army or navy of the United States or of the Confederate States or of Virginia or who was the son of such a one, or who owned property on which the State tax was one dollar, or who was able to read and explain or to understand and explain the Constitution of the State. Mississippi has no “Grandfather Clause.”
In Alabama, Georgia, and Virginia, the fact that one was a soldier enabled him to register under the “Grandfather Clause”; in Louisiana and North Carolina, that he was a voter in 1867. In each State the lineal descendants of such soldiers or voters in 1867 might register under the “Grandfather Clause.” In Alabama one might register, though he was not an old soldier or descendant of one, if he understood the duties and obligations of citizenship and was of good character. In Virginia and South Carolina, one could register under the “Grandfather Clause” if he could understand and explain the Constitution when read to him; and, in Virginia, if he owned property taxed as much as one dollar a year.
The “Grandfather Clauses” are all temporary. Those classes of men covered by the clauses are given a certain time within which to have their names entered on a permanent registry. If they are once entered on the permanent register, they are voters for life unless excluded because of some crime or because they become public charges. If they fail, however, to register within the limited time, and still wish to become electors, they must satisfy the same tests as other applicants for registration. For instance, one who could vote in North Carolina in 1867 might have his name entered on the permanent register prior to December 1, 1908, and thereby become a voter for life, though he had neither property nor literacy; if he failed to register by that date, he had to satisfy the educational test as any other applicant would have to do. The length of duration of the “Grandfather Clauses” varies from a few months to several years. Thus, the “Grandfather Clause” of South Carolina was of avail from 1895 to 1898; of Louisiana, from May 16, 1898, to September 1, 1898; of North Carolina, from July 1, 1900, to December 1, 1908; of Alabama, from 1901 to 1903; Virginia, from 1902 to 1904; and in Georgia, it extends from 1908 to 1915. It will be seen that Georgia is the only State in which the “Grandfather Clause” is still in force. All who registered within the dates given above are still electors and will continue to be as long as they live unless excluded from the suffrage because of crime or the like; those who have not registered under the “Grandfather Clauses” cannot do so now, except in Georgia.
The “Grandfather Clauses” are more nearly race distinctions than any other sections of the suffrage laws for the reason that so many white men in the Southern States and so few Negroes are either old soldiers or descendants of old soldiers or had the right to vote in 1867. Yet they are not, technically speaking, race distinctions because, if one was a veteran or son of one, he might register regardless of his race or color. As a matter of fact, a considerable number of Negroes in the Southern States, who were Federal soldiers in the Civil War, have registered under the “Grandfather Clauses.”
“Understanding and Character Clauses”
The “Understanding Clauses” do not have as large a place in the suffrage laws of the Southern States as is commonly believed. In only two States—Georgia and Mississippi—is the “Understanding Clause” permanent. In Georgia, one may register if he is of good character and understands the duties and obligations of citizens under a republican form of government, although he has neither education nor property. In Mississippi, one who cannot read may register if he can understand and reasonably interpret the Constitution when read to him. A distinction must be made between these two “Understanding Clauses.” In Georgia the requirement is the understanding of the duties of citizens of a republican form of government; in Mississippi it is understanding the State Constitution when read. In three other States—Alabama, South Carolina, and Virginia—the “Understanding Clause” of the Mississippi type is part of the “Grandfather” section, and became inoperative with the “Grandfather Clauses.” The Georgia provision which allows one to register, regardless of education or property, if he is of good moral character has a prototype in the Constitution of Connecticut which requires all electors to be of good moral character, and the Constitution of Vermont which requires the electors to be of quiet and peaceable behavior.
It cannot be doubted that the permanent “Understanding Clauses” of Mississippi and Georgia lend themselves to race discrimination. The Constitution of Mississippi provides that the applicant for registration must be able either to read or understand and reasonably interpret the Constitution. The registrar who so desires may easily disqualify members of one race by asking them to explain more difficult passages of the Constitution or by requiring of them a more scholarly interpretation of such passages than he demands of members of the other race whom he desires to have qualify as electors. In Georgia the registrar who passes upon an applicant’s understanding of the duties and obligations of citizens under a republican form of government may set a higher standard for one race than for the other.
Persons Excluded from Suffrage
Certain classes of persons are excluded from the franchise because they are considered incapable or unfit to take a hand in governmental matters. The classes excluded are practically the same in all the States, and there is slight evidence of any race distinction in such cases. The following States do not allow paupers to vote: Delaware, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Texas, Virginia, and West Virginia. Other States, including Louisiana, Missouri, Montana, Oklahoma, and South Carolina, exclude the inmates of public institutions of charity, Louisiana and Oklahoma making an exception of Soldiers’ Homes. Practically all the States exclude idiots and insane persons from the suffrage. Other classes, though not excluded from the suffrage, are not allowed to get the required residence to become electors. Thus, in a number of States, students in schools, unless self-supporting, do not get the required residence by living at the school. In a great majority of the States, soldiers and sailors in service do not gain an electoral residence in a State, county, or precinct by being stationed therein. California, Idaho, Nevada, and Oregon exclude all but American-born Chinese. Where the Chinese, because of the Federal naturalization laws, are incapable of becoming citizens, they cannot be electors, because all the States require the electors to be either citizens or persons who have formally declared their intention to become citizens. Idaho, Maine, Michigan, Minnesota, Mississippi, North Dakota, Oklahoma, Washington, and Wisconsin exclude tribal Indians, or, what is perhaps the same, Indians not taxed.
All States exclude from the suffrage those who have been convicted of certain crimes; that is, those who may have served out their terms of imprisonment, but who have not been restored to their civil rights by the executive department of the State. Treason and felonies like embezzlement and bribery are the crimes most frequently mentioned. One finds here a possible race distinction. The Southern States have greatly added to the list of crimes which operate as an exclusion from the suffrage. By the Constitution of Alabama of 1875, for instance, the following were excluded from suffrage: Those convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or any other crime punishable by imprisonment in the penitentiary. The last Constitution of Alabama is more specific; it mentions the following crimes as having the effect of excluding from the suffrage those convicted of them: Treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crimes involving moral turpitude; also any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of making or offering to make false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector. Delaware and several other States, on the other hand, exclude only those who have been convicted of a felony. If, as the Supreme Court of Mississippi said, the Negro is more given to furtive offences than to the robust crimes of the whites, the exclusions of the Alabama law would seem to be directed toward these offences. If more Negroes than whites are guilty of such crimes as larceny and wife-beating, and of sexual irregularities, then the law operates to disqualify for the suffrage more Negroes than whites.