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.
SUFFRAGE IN INSULAR POSSESSIONS OF UNITED STATES
The suffrage qualifications in the insular possessions of the United States are particularly significant in that they tend to show the present attitude of Congress toward the elective franchise. The Act of April 30, 1900, providing a government for the Territory of Hawaii, restricts suffrage to those who can speak, read, and write the English or Hawaiian language—a strict educational test. In the Philippines to be an elector one must be a native of the Philippines, twenty-three years of age or over, and must have paid an annual tax of fifteen dollars, or be the owner of property assessed at two hundred and fifty dollars, or be able to speak, read, and write English or Spanish, or have held substantial office under the Spanish régime. It will be noticed that the tax payment, educational, property, and office-holding tests are alternatives, so the satisfaction of any one of the four is sufficient. Manhood suffrage, as provided by the “Foraker Act”[[723]] of 1900, is still in force in Porto Rico. But this seems destined soon to give way to a restricted suffrage. Secretary of War Dickinson has recently issued a report on the conditions in Porto Rico in which he suggests an amendment of the suffrage laws to the effect that, after the general election of 1910, the qualified voters for any election shall consist only of citizens of the United States, who, with such other qualifications as are required by the laws of Porto Rico, “are able to read and write; or on the day of registration shall own taxable real estate in their own right and name; or who are on said day bona fide members of a firm or corporation which shall own taxable real estate in the name of such firm or corporation; or on the day of registration shall possess and produce to the Board of Registration tax receipts showing the payment of any kind of taxes for the last six months of the year in which the election is held.” President Taft, in transmitting the report to Congress, indorsed Secretary Dickinson’s suggestions, saying[[723]]: “It is much better in the interests of the people of the island that the suffrage should be limited by an educational and property qualification.” The above suffrage qualifications for the insular possessions of the United States is evidence that the attitude of Congress toward universal suffrage has been considerably modified within recent years.
CONSTITUTIONALITY OF SUFFRAGE AMENDMENTS
The first “Suffrage Amendment” of the Southern States, that of Mississippi, was adopted twenty years ago, and yet no case involving the constitutionality of these laws has been squarely presented to the Supreme Court of the United States. The one most nearly in point was Williams v. Mississippi[[724]] in 1898. Williams, a Negro, had been indicted by a jury composed wholly of white men. The law required that a juror should be an elector. Williams contended that the provisions of the Constitution about suffrage were a scheme to discriminate against Negroes, that the discrimination was effected, not by the wording of the law, but by the powers vested in the administrative officers. The United States Supreme Court refused to interfere, saying that the laws did not, on their face, discriminate against the races, and that it “had not been shown that their actual administration was evil, only that evil was possible under them.”
Several suits[[725]] have been brought, the purpose of which has been to test the constitutionality of these laws, but they have all been decided on points of procedure or on technical grounds.
At present, the suffrage laws of the Southern States stand judicially unimpugned in the light of the Fifteenth Amendment. Mr. John Mabry Mathews[[726]] says that the Supreme Court has shown an “apparent desire to shift the duty of redressing such wrongs [those arising under the suffrage laws] upon the political department of the Government. So far as Congress has given any indication of its attitude upon the subject, it has intimated that the matter is one for judicial settlement. But the absence of congressional legislation would in any case hamper the efficiency of the courts in securing the practical enforcement of the Amendment. The real reason behind the attitude of both Congress and the courts is the apathetic tone of public opinion, which is the final arbiter of the question. In the technical sense, the Amendment is still a part of the supreme law of the land. But as a phenomenon of the social consciousness, a rule of conduct, no matter how authoritatively promulgated by the nation, if not supported by the force of public opinion, is already in process of repeal.”
It cannot be safely conjectured what the Supreme Court will say when it squarely faces the suffrage laws of the South in their relation to the Fifteenth Amendment. Until then, each is entitled to his opinion. That the citizenship, age, sex, and residence qualifications are in perfect conformity to the Amendment there is no doubt. The qualifications of tax payment, property, and education existed long before the Fifteenth Amendment in the States of the men most active in securing the adoption of that Amendment. It is hardly to be supposed that the Senators and Representatives from Massachusetts and Pennsylvania understood the Amendment they were advocating to be nullifying the suffrage laws of their respective States. Moreover, a property or educational test is not an abridgment or denial of the right to vote, because it lies within the power of everyone, regardless of race, to accumulate property and acquire literacy.
The “Grandfather Clauses” are the most doubtful parts of the suffrage laws. In one sense, they are not at all a denial or an abridgment of the right to vote. Granting that the property and educational tests are constitutional, the “Grandfather Clause,” instead of abridging or denying, enlarges the right to vote by giving the suffrage to those who would be disqualified under the property or educational tests. Be that as it may, the Southern States are more uneasy about the constitutionality of these provisions than of any others. For instance, at the last two sessions of the legislature of North Carolina bills were introduced to extend the “Grandfather Clause” of that State to 1812 and 1816 respectively. In each case the bill was defeated, the argument against it being that it was unwise to open up the suffrage question again, lest the amendment be brought into court.[[727]]