Race Distinctions in American Law

by Gilbert Thomas Stephenson

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.