The effect of this achievement on the part of the Democrats was apparent in the succeeding congressional election, for they were able to carry all of the southern districts except four. This cannot be attributed, however, entirely to the suppression of the negro vote, for there was a general landslide in 1878 which gave the Democrats a substantial majority in both the House and the Senate. Inasmuch as a spirit of toleration was growing up in Congress, the clause of the Fourteenth Amendment excluding from Congress certain persons formerly connected with the Confederacy, was not strictly enforced, and several of the most prominent and active representatives of the old régime found their way into both houses. Under their vigorous leadership a two years' political war was waged between Congress and the President over the repeal of the force bills, but Hayes won the day, because the Democrats could not secure the requisite two-thirds vote to carry their measures against the presidential veto.
However, the Supreme Court had been undermining the "force laws" by nullifying separate sections, although it upheld the general principle of the election laws against a contention that elections were wholly within the control of state authorities. In the case of United States v. Reese, the Court, in 1875, declared void two sections of the law of 1870 "because they did not strictly limit Federal jurisdiction for protection of the right to vote to cases where the right was denied by a state," but extended it to denials by private parties. In the same year in the case of United States v. Cruikshank the Court gave another blow to Federal control, in the South. A number of private citizens in Louisiana had waged war on the blacks at an election riot, and one of them, Cruikshank, was charged with conspiracy to deprive negroes of rights which they enjoyed under the protection of the United States. The Supreme Court, however, held that the Federal government had no authority to protect the citizens of a state against one another, but that such protection was, as always, a duty of the state itself. Seven years later the Supreme Court, in the case of United States v. Harris, declared null that part of the enforcement laws which penalized conspiracies of two or more citizens to deprive another of his rights, on the same ground as advanced in the Louisiana case.[1]
On the withdrawal of Federal troops and the open abandonment of the policy of military coercion, the whites, seeing that the Federal courts were not inclined to interfere, quickly completed the process of obtaining control over the machinery of state government. That process had been begun shortly after the War, taking the form of intimidation at the polls. It was carried forward another step when the "carpet baggers" and other politicians who had organized and used the negro vote were deprived of Federal support and driven out. When this active outside interference in southern politics was cut off, thousands of negroes stayed away from the polls through sheer indifference, for their interest in politics had been stimulated by artificial forces—bribery and absurd promises. Intimidation and indifference worked a widespread disfranchisement before the close of the seventies.
These early stages in the process of disfranchisement were described by Senator Tillman in his famous speech of February 26, 1900. "You stood up there and insisted that we give these people a 'free vote and a fair count.' They had it for eight years, as long as the bayonets stood there.... We preferred to have a United States army officer rather than a government of carpet baggers and thieves and scallywags and scoundrels who had stolen everything in sight and mortgaged posterity; who had run their felonious paws into the pockets of posterity by issuing bonds. When that happened we took the government away. We stuffed the ballot boxes. We shot them. We are not ashamed of it. With that system—force, tissue ballots, etc.—we got tired ourselves. So we had a constitutional convention, and we eliminated, as I said, all of the colored people whom we could under the Fourteenth and Fifteenth Amendments." The experience of South Carolina was duplicated in Mississippi. "For a time," said the Hon. Thomas Spight, of that state, in Congress, in 1904, "we were compelled to employ methods that were extremely distasteful and very demoralizing, but now we are accomplishing the same and even better results by strictly constitutional and legal procedure." It should be said, however, that in the states where the negro population was relatively smaller, violence was not necessary to exclude the negroes from the polls.
A peaceful method of disfranchising negroes and poor whites was the imposition of a poll tax on voters. Negroes seldom paid their taxes until the fight over prohibition commenced in the eighties and nineties. Then the liquor interests began to pay the negroes' poll taxes and by a generous distribution of their commodities were able to carry the day at the polls. Thereupon the prohibitionists determined to find some effective constitutional means of excluding the negroes from voting.
This last stage in the disfranchisement process—the disqualification of negroes by ingenious constitutional and statutory provisions—was hastened by the rise during the eighties and nineties of the radical or Populist party in the South, which evenly balanced the Democratic party in many places and threatened for a time to disintegrate the older organization. In this contest between the white factions a small number of active negroes secured an extraordinary influence in holding the balance of power; and both white parties sought to secure predominance by purchasing the venal negro vote which was as large as, or perhaps larger than, the venal white vote in such northern states as Connecticut, Rhode Island, or Indiana. The conservative wing of the white population was happy to take advantage of the prevailing race prejudice to secure the enactment of legislation disfranchising a considerable number of the propertyless whites as well as the negroes; and the radicals grew tired of buying negro voters.
Out of this condition of affairs came a series of constitutional conventions which devised all sorts of restrictions to exclude the negroes and large numbers of the "lower classes" from voting altogether, without directly violating the Fifteenth Amendment to the Federal Constitution providing against disfranchisement on account of race, color, or previous condition of servitude.
The series of conventions opened in Mississippi in 1890, where the Populistic whites were perhaps numerically fewest. At that time Mississippi was governed under the constitution of 1868, which provided that no property or educational test should be required of voters, at least not before 1885, and also stipulated that no amendment should be made except by legislative proposal ratified by the voters. Notwithstanding this provision, the legislature in February, 1890, called a convention to amend the constitution "or enact a new constitution." This convention proceeded to "ordain and establish" a new frame of government, without referring it to the voters for ratification; and the courts of the state set judicial sanction on the procedure, saying that popular ratification was not necessary. This constitution provides that every elector shall, in addition to possessing other 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 to give a reasonable interpretation thereof." Under such a general provision everything depends upon the attitude of the election officials toward the applicants for registration, for it is possible to disfranchise any person, no matter how well educated, by requiring the "interpretation" of some obscure and technical legal point.
Five years later South Carolina followed the example of Mississippi, and by means of a state convention enacted a new constitution disfranchising negroes; and put it into force without submitting it to popular ratification.[2] The next year (1896) the legislature of Louisiana called a convention empowered to frame a new constitution and to put it into effect without popular approval. This movement was opposed by the Populists, one of whom declared in the legislature that it was "a step in the direction of taking the government of this state out of the hands of the masses and putting it in the hands of the classes." In spite of the opposition, which was rather formidable, the convention was assembled, and ordained a new frame of government (1898) disfranchising negroes and many whites. The Hon. T. J. Symmes, addressing the convention at the close, frankly stated that their purpose was to establish the supremacy of the Democratic party as the white man's party.
Four principal devices are now employed in the several constitutional provisions disfranchising negroes: (1) a small property qualification, (2) a prerequisite that the voter must be able to read any section of the state constitution or explain it, when read, to the satisfaction of the registering officers, (3) the "grandfather clause," as in Louisiana where any person, who voted on or before 1867 or the son or grandson of such person, may vote, even if he does not possess the other qualifications; and (4) the wide extension of disfranchisement for crimes by including such offenses as obtaining money under false pretenses, adultery, wife-beating, petit larceny, fraudulent breach of trust, among those which work deprivation of the suffrage.