UNDER THE CONSTITUTION OF 1890.
The provisions of the new constitution of Mississippi on the subject of suffrage are as follows:
ARTICLE 12.
FRANCHISE.
Section 240. All elections by the people shall be by ballot.
Section 241. Every male inhabitant of this state, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this state two years, and one year in the election district, or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, and who has paid, on or before the first of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel in charge of an organized church shall be entitled to vote after six months' residence in the election district, if otherwise qualified.
Section 244. On and after the first day of January, A. D. 1892, every elector shall, in addition to the foregoing qualifications, be able to read any section of the constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. A new registration shall be made before the next ensuing election after January the first, A. D. 1892.
The qualifications at the present time, therefore, of an elector are:
1. Male,
2. Inhabitant of the state, excluding idiots, insane persons and Indians not taxed,
3. Citizen of the United States,
4. Twenty-one years old or upwards,
5. Resident of the state for two years,
6. Resident for one year in the election district, or city or town, except ministers of the gospel who may vote on six months' residence,
7. Duly registered,
8. Never convicted of bribery and other enumerated crimes,
9. Has paid two years' taxes,
10. Able to read any section of the constitution of the state; or able to understand the same when read to him, or give a reasonable interpretation thereof.
1. Male,
2. Inhabitant of the state, excluding idiots, insane persons and Indians not taxed,
3. Citizen of the United States,
4. Twenty-one years old or upwards,
5. Resident of the state for two years,
6. Resident for one year in the election district, or city or town, except ministers of the gospel who may vote on six months' residence,
7. Duly registered,
8. Never convicted of bribery and other enumerated crimes,
9. Has paid two years' taxes,
10. Able to read any section of the constitution of the state; or able to understand the same when read to him, or give a reasonable interpretation thereof.
It will be noted that these constitutional qualifications, unlike the provisions of former fundamental laws, are by the section above quoted made to apply to electors in municipal elections; the legislature, however, is authorized to prescribe additional qualifications. And it has prescribed as such additional qualifications, by the section on that subject in the chapter of the new Code on Municipalities, that the voter must have resided within the corporate limits for one year next before he offers to register and he must not be in default for taxes due the municipality for the two preceding years.
Much has been said about this constitution, both for and against it; especially has the "understanding clause," the tenth qualification as enumerated above, been severely criticised. Thus we find in the American Law Review of January-February, 1892, the following: "It is quite apparent that this clause was never intended to be carried out faithfully. It will be so administered as to exclude the negro voters, hardly one of whom will be eligible under it, and so as not to exclude the ignorant white voter. The last qualification, the ability to give a reasonable interpretation of any clause of the constitution of the state, would exclude nearly all the lawyers and judges in the state. In this manner the people of Mississippi endeavor to solve the appalling problem of carrying on civil government with a mass of voters easily corrupted and so stolid and ignorant as not to be able to understand the first principles of their political institutions."
And we find in the Atlantic Monthly, December, 1892, the following statement in reference to it:
"That it may, and probably will, be put into operation so as to preclude the negro from voting, while his equally ignorant white neighbor is allowed the privilege, appears from the fact that the inability to read does not constitute an absolute basis of exclusion; for the inspectors may allow a person to vote who can understand or give a reasonable interpretation of a section of the constitution when read to him. It is apparent that an inspector may very easily reject as unreasonable an interpretation from a colored man, and accept one no whit better from a white man. Such discrimination in practice would be very hard to discover."
And Mr. John F. Dillon, one of the most distinguished of American lawyers, in his address as President of the American Bar Association, at Saratoga, August, 1892, speaking of this section of the Mississippi Constitution of 1890, says:
"It has been supposed that this clause was a concession made in the interest of illiterate whites; but whether this be so or not, a general and indiscriminate requirement that all voters shall be able to read and write is, in my judgment, not contrary to the fundamental principles of American government, but in accordance with the principles on which such government must securely rest, namely, the intelligence and virtue of the people."
I have heard attributed to a distinguished United States Senator, who would have been glad to have come to a different conclusion, that this constitution demonstrated that Anglo-Saxon ingenuity could accomplish anything; that the provisions of it on the subject of the suffrage was a practical repeal of the fifteenth amendment of the constitution of the United States, and yet the result was effected in such a way that its legality could not be successfully denied.
The truth is, without reference to the designs of its authors, that we have under it in the state, to all intents and purposes, an educational qualification pure and simple. More negroes, the American Law Review and the Atlantic Monthly to the contrary notwithstanding, have registered under the alternate or understanding clause than white men. Only 2,672 illiterate, both white and black, had up to 1893 registered under it. I have not seen the figures since. The negroes who have taken advantage of it exceed the white men who have done so in a majority of the counties of the state.
It seems that the illiterate white man shrinks from an application to be registered under the "understanding clause;" a refusal to advertise his incapacity, while the negroes as a rule have but little to lose; but another truth is that with scarcely an exception the negroes are thoroughly content with the constitution, and are satisfied to be measured for registration and voting by its standards. The writer, as a member of the convention which adopted the constitution, voted against the "understanding clause," but now that he has seen its practical workings he is prepared to say that the convention did the very best thing that it could have done under the circumstances surrounding it.
This "understanding clause" is not without a parallel in the constitutions of other states; as was pointed out by Senator George of this state in the United States Senate, it is no more difficult of honest administration than are the provisions of the constitutions of other states: for example, the constitution of Vermont of 1777 provided that an elector "should be of quiet, peaceable behavior," and the constitution of Connecticut requires at this day that the voter shall sustain "a good moral character," and numerous other like instances that might be mentioned.
The constitutional provision that a person shall not register as a voter within four months of an election is believed to be a wise measure; the ignorant, the indifferent and the sordid voter fails to register; political excitement never exists to any considerable extent so long before the election; there is no such thing as hiring men to register, for those who can be hired, cannot be trusted for so long a time to vote in the promised or expected way. It is believed that the provision is worthy of adoption everywhere.
The legislation of Mississippi under the constitution of 1890 conforms to that instrument.
By sections 3624 to 3640 of the code (1892) ample provision is made for appeals from adverse rulings of registration officers, and the humblest citizen of the land, the humblest negro, if you please, can invoke the courts of the country, even the Supreme Court, for protection in case he be improperly denied the right to register and vote, and he is also provided with ample remedy before the courts in every case where the right is improperly granted to others. These Code sections are as follows:
3624. Appeal by person denied registration.—Any person denied the right to register as a voter may appeal from the decision of the registrar to the Board of election commissioners by filing with the registrar, on the same day of such denial or within five days thereafter, a written application for appeal.
3625. Appeal by other than person denied.—Any elector of the county may likewise appeal from the decision of the registrar allowing any other person to be registered as a voter; but before the same can be heard the party appealing shall give notice to the person whose registration is appealed from, in writing, stating the grounds of the appeal; which notice shall be served by the sheriff or constable, as process in other courts is required to be served; and the officer may demand and receive for such service, from the person requesting the same the sum of one dollar.
3626. Appeal heard de novo.—All cases on appeals shall be heard by the boards of election commissioners de novo, and oral evidence may be heard by them; and they are authorized to administer oaths to witnesses before them; and they have the power to subpœna witnesses, and to compel their attendance; to send for persons and papers; to require the sheriff and constables to attend them and execute their process. The decisions of the commissioners in all cases shall be final as to questions of fact, but as to matters of law they may be revised by the circuit and supreme courts. The registrar shall obey the orders of the commissioners in directing a person to be registered, or a name to be stricken from the registration books.
3637. Appeal from the decision of the Commissioners.—Any elector aggrieved by the decision of the commissioners, shall have the right to file a bill of exceptions thereto, to be approved and signed by the commissioners, embodying the evidence in the case and the findings of the commissioners, within two days after the rendition of the decision, and may thereupon appeal to the circuit court upon the execution of a bond, with two or more sufficient sureties, to be approved by the commissioners, in the sum of one hundred dollars, payable to the state, and conditioned to pay all costs in case the appeal shall not be successfully prosecuted; and in case the decision of the commissioners be affirmed, judgment shall be entered on the bond for all costs.
3638. Duty of Commissioners in case of appeal to Circuit Court.—It shall be the duty of the commissioners, in case of appeal from their decision, to return the bill of exceptions and the appeal bond into the circuit court of the county within five days after the filing of the same with them; and the circuit courts shall have jurisdiction to hear and determine such appeals.
3629. Proceedings in the Circuit Court.—Should the judgment of the circuit court be in favor of the right of an elector to be registered, the court shall so order, and shall, by its judgment, direct the registrar of the county forthwith to register him. Costs shall not, in any case, be adjudged the commissioners or the registrar.
3630. Costs; compensation, etc.—The election commissioners shall not award costs in proceedings before them; but the circuit and supreme courts shall allow costs, as in other cases. The sheriffs, when required to attend before the commissioners at their meetings, shall be paid two dollars a day, to be allowed by the board of supervisors.
Having now considered and presented the evolution of suffrage in this state and given by way of recital and incidentally at least, its present status, we come to consider the objects upon which the suffrage may be exercised, and this can be easily stated by the general averment that all legislative and executive officers are elected by the suffragists; the executive officers of the state are not elected necessarily by a plurality or a majority vote. We have a sort of an electoral scheme, which is created by the constitution in the following words:
Section 140.—The governor of the state shall be chosen in the following manner: On the first Tuesday after the first Monday of November of A. D. 1895, and on the first Tuesday after the first Monday of November in every fourth year thereafter, until the day shall be changed by law, an election shall be held in the several counties and districts created for the election of members of the house of representatives in this state, for governor, and the person receiving in any county or such legislative district the highest number of votes cast therein, for said office, shall be holden to have received as many votes as such county or district is entitled to members in the house of representatives which last named votes are hereby designated "electoral votes." In all cases where a representative is apportioned to two or more counties or districts, the electoral vote, based on such representative, shall be equally divided among such counties or districts. The returns of said election shall be certified by the election commissioners, or a majority of them, of the several counties, and transmitted, sealed, to the seat of government, directed to the secretary of state, and shall be by him safely kept and delivered to the speaker of the house of representatives at the next ensuing session of the legislature within one day after he shall have been elected. The speaker, shall on the next Tuesday after he shall have received said returns, open and publish them in the presence of the house of representatives, and said house shall ascertain and count the vote of each county and legislative district and decide any contest that may be made concerning the same, and said decision shall be made by a majority of the whole number of members of the house of representatives concurring therein, by a viva voce vote, which shall be recorded in its journal; Provided, In case the two highest candidates have an equal number of votes in any county or legislative district, the electoral vote of such county or legislative district shall be considered as equally divided between them. The person found to have received a majority of all the elective votes, and also a majority of the popular vote, shall be declared elected.
Section 141. If no person shall receive such majorities, then the house of representatives shall proceed to choose a governor from the two persons who shall have received the highest number of popular votes. The election shall be by viva voce, which shall be recorded in the journal, in such manner as to show for whom each member voted.
Section 142. In case of an election of governor or any state officer by the house of representatives, no member of that house shall be eligible to receive any appointment from the governor or other state officer so elected during the term for which he shall be elected.
Section 143. All other state officers shall be elected at the same time and in the same manner as provided for election of governor.
The legislature is prohibited from electing officers to a very great extent by the following section of the constitution:
Section 99. The legislature shall not elect any other than its own officers, state librarian and United States Senators; but this section shall not prohibit the legislature from appointing presidential electors.
All the judges of the state, except justices of the peace, are appointed by the Governor by and with the advice and consent of the senate. Mississippi was, it may be mentioned parenthetically, the first state to provide for an elective judiciary; this was done in her constitution of 1832; but she is now as far away from that mode of selection as she can well be, her present constitution providing for their appointment and her people generally, it is believed, are thoroughly satisfied with the present status of the matter. There are two instances in which the electors vote directly upon the subject of the enforcement of laws; and without an affirmative vote in their favor the statutes are not enforced. These are, first the Local Option law, by which the qualified electors of a county, if a majority vote against the sale, may prohibit the licensing of dram-shops in the county, and under which a large majority of the counties of the state have secured absolute statutory prohibition of the liquor traffic; and, second, the fence and stock law, by which is determined the question of whether the owners of live stock shall keep them confined, and thus allow of the production of crops on unenclosed lands. This resolves itself into a question of "fences" or "no fences," and it is left to a vote in the counties, or parts of counties can vote upon it. This question is left to "the resident freeholders and leaseholders for a term of three years or more" of the territory so voting. It will be noticed that neither sex nor age is mentioned, and in truth women and infants do actually vote in the state, on this interesting and to those involved, most serious question.
The Supreme Court of the state has settled beyond cavil that the statute is constitutional and valid. This "fence" or "no fence" election is possibly an exception to the general rule of the state that a plurality vote elects or carries. I say, possibly is an exception, because of ambiguity in the statute, construed as I think it may be seen by some minds, it will require two thirds of the vote cast to put the "no fence" law in force.
All elections in Mississippi since 1821 have been by ballot, and this is now the constitutional rule; we have here the Australian or secret ballot system very much as it is found in a number of states of the Union, and it accomplishes in its practical operation the primary objects of the system; first, the absolute prevention of bribery, for no man will bribe a voter if the only evidence of the delivery of the contracted-for vote be the word of the bribe taker, and, second, the prevention of intimidation of voters, which is practically impossible.
The absence from the voting place since the introduction of the system of the ticket broker and professional bummer is notable.
It was the intention of the writer when this article was begun to present his views on many of the questions suggested and germain to the general subject, but this paper has now grown so long that he will have to be content with a presentation of a mere historical narrative of matters pertaining to suffrage in this state. He consoles himself with the reflection that perhaps such a contribution may be more valuable to the true and earnest student of the subject than would be any discourse that he might write which in its nature was sought to be made philosophical, or which was merely speculative. If the facts are presented, if the history be made accessible, the student who is interested enough to read will draw the proper conclusions.