Chapter XI: Suffrage (1)

The Fifteenth Amendment to the Constitution of the United States, ratified on March 30, 1870, reads: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” In the face of this unequivocal constitutional provision, it would seem impossible to have a legal race distinction in the matter of suffrage. It is plain that, if a State or the United States makes a law that in any way denies or abridges the right of a citizen to vote on account of his race, such an enactment is in violation of the Amendment. The only State or Federal statute or State constitutional provision involving a race distinction that would be valid under the Fifteenth Amendment would be one that did not amount to a denial or abridgment of the right to vote. For instance, a State might require white and Negro electors to cast their ballots in different boxes, or in different parts of the booth, or even in different booths; or it might require them to register on different days, or before different registrars. If the Negro was given the same opportunity to register and vote as the white man, the requirements of separate registering and balloting would be race distinctions in the matter of suffrage, but they would not be denials or abridgments of the right to vote and, hence, might be supported under the Fifteenth Amendment. Any such requirements have not been found in the State Constitutions or statutes; they are only suggested as possible race distinctions which might be permissible.

It follows, therefore, that the race distinctions to be considered in this chapter exist, not in conformity to law, as in the case of separate schools and public conveyances, but in defiance of law or by legal subterfuges, and are properly called discriminations.

NEGRO SUFFRAGE BEFORE 1865

The suffrage requirements as to race up to 1865 serve as a background for the events after that date. A review[661] of the acts of territorial government and State Constitutions of the Territories and States of the United States reveals the following facts: Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont appear not to have had any race distinctions in suffrage. Alabama, Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nevada, Ohio, Oregon, South Carolina, and West Virginia never permitted any but white males to vote at any time between the Revolution and 1865. The Constitutions of Kansas[662] of 1855 and of Minnesota[663] of 1857 permitted civilized Indians to vote, though the same privilege was not extended to Negroes. Kentucky,[664] in 1799, gave the suffrage to “free” persons, but expressly excepted Negroes, mulattoes, and Indians. Texas,[665] in 1845, gave the right to vote to free male persons but excepted Indians not taxed, Africans, and descendants of Africans.

Besides the above-named States which either made no race distinctions at all or else always made distinctions as to Negroes, several States, at one time or another, extended a limited suffrage to Negroes. The Constitution of New York[666] of 1821, giving the right to vote to male citizens, had the provision that “no man of color, unless he shall have been for three years a citizen of this State, and for one year next preceding any election shall be seized and possessed of a freehold estate of the value of two hundred and fifty dollars, over and above all debts and incumbrances charged thereon, and shall have been actually rated and paid a tax thereon, shall be entitled to vote at any such election.” There was no property test for white voters. The Constitution[667] of 1846 had the same provision about Negro voters. The question of equal suffrage to Negroes was submitted[668] separately in 1846, and rejected by a vote of 85,306 to 223,834. It was again submitted in 1860, with like result, the vote being 197,503 to 337,984.

The Constitution of North Carolina[669] of 1835, as amended, provided that no free Negro, free mulatto, or free person of mixed blood, descended from Negro ancestors to the fourth generation inclusive, though one ancestor in each generation might have been a white person, should vote for members of the “senate or house of commons” of the State. Negroes who paid a certain poll tax were allowed to vote until this Amendment went into effect. Governor W. W. Kitchin,[670] of that State, says: “There were 21,000 free Negroes in North Carolina in 1835, 4,000 of whom were entitled then to vote.” After 1835 Negroes were not allowed to vote there again until after the War.

The Constitution of Tennessee[671] of 1834 provided that no person should be disqualified from voting in any election who was then by the laws of the State a competent witness in a court of justice against a white person. One cannot tell how many Negroes were qualified to vote under this provision. The Constitution of Wisconsin[672] of 1848 limited the privilege of voting to white persons, but the Supreme Court[673] of that State held in 1866 that suffrage had been extended to Negroes by a vote of the people at the general election on November 6, 1849.

Several States which at first allowed Negro freemen to vote later withdrew the privilege. Until the Revolution, they were allowed to vote in every State except Georgia and South Carolina. Between 1792 and 1834, Delaware, Maryland, Virginia, and Kentucky denied the suffrage to Negroes. As has been seen, North Carolina permitted a restricted Negro suffrage until 1835. New Jersey took the suffrage from the Negro in 1807, Connecticut in 1814, and Pennsylvania in 1838; and Tennessee, in 1834, limited the right to those Negroes who were competent as witnesses against white persons. New York, in 1821, required a very high property qualification not required of white persons.[674] Wisconsin alone changed its law so as to allow Negroes to vote on equality with white persons. New York tried twice to do so, but failed each time.

In each of the acts of territorial government drawn up by Congress, suffrage was restricted to free white persons. This fact, together with the fact that the West Virginia Constitution of 1861–63 also restricted the suffrage to white persons, tends to show the attitude of the National Government in the early days toward Negro suffrage.

SUFFRAGE BETWEEN 1865 AND 1870

In 1865, the only States that permitted Negroes to vote on the same footing as white persons were Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, and Wisconsin. New York and Tennessee permitted a restricted Negro suffrage.

The changes in the suffrage laws between 1865 and 1870 indicate what might have taken place had not the United States interfered with the Fifteenth Amendment. The Reconstruction Constitutions[675] of the Southern States in 1868 and 1869 extended the suffrage to Negroes. These Constitutions, however, did not express the will of the Southern white people at the time in regard to suffrage. The Constitution of Maryland,[676] of 1867, permitted only white persons to vote; and that of Nebraska,[677] of 1866–67, under which it sought admission to the Union, did not give the suffrage to Negroes.

Negro suffrage was voted down in New York[678] in 1868, as it had been in 1846 and 1860, by a vote of 282,403 to 249,802. By the act of territorial government of Colorado, of 1861, suffrage was restricted to white persons. But an act of the legislature[679] of that Territory, enacted in November, 1861, seemed to extend the right to vote to Negroes. This was amended,[680] however, in 1864, by expressly excluding Negroes and mulattoes from the suffrage. The legislature of Connecticut[681] of 1865 proposed an amendment to the Constitution whereby Negroes would be given the right to vote, the same to be submitted to the people for their ratification. Minnesota[682] and Wisconsin,[683] in 1865, submitted constitutional amendments providing for Negro suffrage. According to Representative Hardwick,[684] of Georgia, “Negro suffrage was rejected by decisive majorities.” It was after the 1865 Amendment had been defeated at the polls in Wisconsin that the Supreme Court of that State, as has been seen, held that Negroes had been given the right to vote by a law of 1849.

The word “white” was stricken from the Constitution of Iowa[685] by the legislature of 1867–68, and this action was ratified by a vote of 105,384 to 81,384. Minnesota[686] amended its Constitution in 1868 so as to extend suffrage to Negroes. On December 30, 1867, the word “white” was stricken from the election laws of Dakota Territory.[687]

On June 8, 1867, Congress passed, over the President’s veto, a bill first introduced in 1865 establishing Negro suffrage in the District of Columbia. Before its passage, provision had been made by Congress to submit the question to a vote of the people. The extension of suffrage to Negroes was rejected by a vote of 6,521 to 35 in Washington City and 812 to 1 in Georgetown. In spite of this vote the Thirty-ninth Congress ordained Negro suffrage for the District. After four years, the government of the District was so changed that suffrage was taken from all the residents. In 1866, Congress established Negro suffrage in all the Territories of the United States.[688]

The second section of the Fourteenth Amendment, proposed June 16, 1866, and declared in force June 28, 1868, reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” The Amendment did not prohibit the denial or abridgment of the right to vote on account of race or color, but provided that, if such right was denied or abridged, the State must suffer the consequence of having its representation in Congress reduced. One feels safe in saying that the purpose of the National Government in adopting this section of the Fourteenth Amendment was to induce the States, particularly the Southern States, to extend suffrage to the Negro. With the possible exception of Minnesota, no State appears to have heeded the warning between 1868 and 1870.

One cannot say what would have been the result had the National Government rested there—whether or not of their own accord the various States would have extended the suffrage to Negroes—because, within less than two years, the Fifteenth Amendment had deprived the States of any choice in the matter by providing that they _must_ not deny or abridge the right to vote on account of race or color.

SUFFRAGE BETWEEN 1870 AND 1890

At the time of the ratification of the Fifteenth Amendment, in 1870, the following States still restricted the suffrage to white persons: California, Colorado, Connecticut, Delaware, Indiana, Kansas, Kentucky, Maryland, Michigan, Nevada, New Jersey, Ohio, Oregon, and Pennsylvania. Illinois[689] adopted a new Constitution in 1870 which omitted the word “white.” Missouri[690] amended its Constitution on November 8, 1870, after the Fifteenth Amendment went into effect, by erasing the word “white,” and Virginia,[691] in its Constitution of 1870, extended the suffrage to “male citizens.” It is needless to say that all the Constitutions adopted since 1870 have omitted the word “white” from the suffrage qualifications, so it is not worth while to note the various Constitutions and Amendments that have been adopted since that date. But in some State Constitutions which have not been changed within the last forty years, one still finds the provision that only “white male citizens” are electors. This is true of Maryland.[692] Attempts have been made to amend the Constitution by erasing the word “white,” but the objection has been made that it is null and void[693] anyway by the Fifteenth Amendment, and that it would be too expensive to call a constitutional convention or hold an election solely for the purpose of erasing a “dead” word.

The history of the ratification of the Fifteenth Amendment—the opposition it provoked and the means that had to be adopted to procure its ratification by the Southern States—is found in the records of Congress, newspapers, and political discussions of that day. Very little of it has been preserved in the laws of the States. In the following resolution by the legislature of Oregon[694] is found one of the few traces of the opposition to the Amendment occurring in the laws of a State outside the South:

“Whereas, the State of Oregon was, on the fourteenth day of February, A.D., 1859, admitted into the Federal Union, vested with the right to declare what persons should be entitled to vote within her boundaries; and until she, by her voluntary act, surrenders that right, the Congress of the United States has no authority to interfere with the conditions of suffrage within the boundaries of the State of Oregon: and

“Whereas, the Congress of the United States, by means of an arbitrary majority of votes acquired by the power of the bayonet, has sought to force upon the several States the so-called Fifteenth Amendment to the Federal Constitution, in direct violation of the terms under which the State of Oregon was admitted into the Sisterhood of States; therefore

“Be it resolved by the Senate, the House concurring:

“That the so-called Fifteenth Amendment is an infringement upon the popular rights, and a direct falsification of the pledges made to the State of Oregon by the Federal Government.

“Resolved, that the said Fifteenth Amendment be and the same is hereby rejected.

“Resolved, that the Governor be requested to transmit copies of this resolution to the Secretary of State of the United States and to the Senators and Representatives from the State of Oregon in the Congress of the United States.”

The probable explanation of this opposition of Oregon to the Fifteenth Amendment lies in its unwillingness to give the ballot to the Japanese, Chinese, and Indians in the State.

The feeling of New York[695] toward Negro suffrage in 1870 appears to be different from that of Oregon. A statute was passed prohibiting any registrar or inspector of elections to demand any oath or ask any questions of a Negro different from what was demanded of white persons, or to reject the name of any colored person from registry except for the same causes as would make it his duty to reject the name of a white person. The violation of this statute was a misdemeanor, punishable by a fine of five hundred dollars and imprisonment for six months.

In order to make the prohibitions of the Fifteenth Amendment effective, on May 31, 1870, two months after the ratification of the Amendment, Congress passed an Act,[696] the first section of which reads: “All citizens of the United States, who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial division, shall be entitled and allowed to vote at all such elections without distinction of race, color, or previous condition of servitude, any constitution, law, custom, usage, or regulation in any State, Territory, or by or under its authority, to the contrary notwithstanding.”

The fourth section of the “Enforcement Act,” as the Act of 1870 was called, provided for the punishment of any person who should, by force, bribery, threats, intimidation, or other unlawful means, hinder, delay, or combine with others to hinder, delay, prevent, or obstruct any citizen from doing any act required to be done to qualify him to vote, or from voting at any election.

In 1875, two inspectors of a municipal election in Kentucky were indicted for refusing to receive and count the vote of a Negro. The Supreme Court[697] of the United States, to which the case came by reason of a division of opinion of the Circuit Court, held that the Fifteenth Amendment did not confer the right of suffrage, but rather invested citizens with the right of exemption from discrimination in the exercise of the elective franchise on account of their race, color, or previous condition of servitude. The fourth section of the Act of 1870, by its language, did not confine its operation to unlawful discrimination on account of race or color and was, therefore, unconstitutional. The “Enforcement Act” of 1870, like the Civil Rights Bill of 1875, failed in its desired effect because it was too far-reaching in its scope. Had the Act of 1870 been upheld, the Federal authorities would have taken complete control of all elections, State as well as Federal.

The years between 1870 and 1890 are known for the actual race distinctions in suffrage. Between 1870 and 1877, the white people of the South were largely disfranchised, not because of their race, but because of their participation in the War. After 1877, the Negroes were largely disfranchised by unlawful methods adopted by the white people of the South. If this were a history of the actual race distinctions in suffrage, it would be necessary to consider at length the “tissue ballots,” the stuffing of ballot boxes, the intimidation of Negroes by the Ku Klux Klan and other bodies of white men, and other election devices and practices in the South at that time. But this study, as has been said before, is confined to the race distinctions _in_ the law, not those _in defiance of_ the law. Out of all the suffrage irregularities of the period very little suffrage law was evolved. Few judicial decisions and no statutes bearing directly on the relation of race to suffrage have been found.

Some cases of intimidation of Negroes at the polls reached the courts of record. In Lawrence County, Ohio, in 1870, for instance, two white men by threats of violence kept three Negroes from voting. One of the white men was convicted in the Federal court[698] under the Act of 1870, and imprisoned six months; the other was acquitted because he had not been heard to use threatening language. In 1871 a white man in South Carolina was convicted in the Federal court[699] for conspiring to keep a Negro from voting at a congressional election. The same year, in a contested election for mayor of Leavenworth, Kansas, the defeated candidate claimed that he would have been elected had not a number of Negroes been improperly kept from voting. He did not show that they had been in the ward thirty days as required by the election law of the State, and the court[700] held that Negroes must satisfy the same requirements as to residence as other voters. In a State election in Louisiana, in 1872, it was claimed, upon the affidavits of four thousand voters, that the votes of ten thousand Negroes had been suppressed because of their race and color.[701] A tax collector in Delaware, in 1873, refused or failed to collect taxes from Negroes when the payment of taxes was a prerequisite to voting. The Federal court[702] held that it had jurisdiction because the tax collector was a State officer and, thus, it was the State denying and abridging the right to vote on account of race. Over one hundred men were indicted in the Federal court of Louisiana in 1874 for intimidating Negroes at the polls.[703] The same year the judges of the municipal election of Petersburg, Virginia, were indicted for refusing to allow a number of Negroes to vote.[704] In 1878, a Negro in Illinois who was denied the right to vote at a school election sued and recovered a hundred dollars damages.[705] In Georgia, in 1844, several white men were convicted in the circuit court of the United States for intimidating, beating, and maltreating Negroes to keep them from voting. The Supreme Court[706] held that Congress had power to regulate Federal elections and could prevent such intimidation.

It will be noticed that nearly all of the cases cited above are along the same line—intimidation of Negroes to keep them from voting. Several constitutional principles, however, relating to suffrage were evolved out of the cases decided during this period. In some of these cases a Negro was not a party at all. It was thought at first, for instance, that suffrage was a right of citizenship and that the Fourteenth Amendment entitled every citizen to vote. Consequently, a proceeding was started in the courts of Kentucky in 1874 to establish the right of a woman to vote. The case went up to the Supreme Court[707] of the United States which held that the Constitution of the United States does not confer the right of suffrage upon anyone. Next, it was thought that the Fifteenth Amendment conferred the right to vote upon Negroes, but the case of United States v. Reese settled this point by deciding that the Amendment did not confer upon Negroes the right to vote, but the right not to be discriminated in voting on account of race, color, or previous condition of servitude.[708] Despite the Fourteenth and Fifteenth Amendments, the principle remains that the individual States retain the right to prescribe the qualifications for voting so long as they do not discriminate against persons on account of race, color, or previous condition of servitude.

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.

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