State Voting Laws in America: Historical Statutes and Their Modern Implications

Historical Statutes and Their Modern Implications

M. Smith, K. Anderson, C. Rackaway

• Publisher: Palgrave Pivot
• Year: 2015
• ISBN:
  9781137483584
• Topic: Politics & International Relations
• Subtopic: Political Campaigns & Elections
• Index: Politics & International Relations

State Voting Laws in America documents changing views on voting rights, emphasizing court rulings which shaped our understanding of what constitutes a legitimate right to vote.

1

Sowing the Seeds

Abstract: The Founders viewed voting rights as fundamental to self-government, yet they created a very restricted definition of who could vote, excluding slaves, women, “Indians not taxed,” and even nonproperty owners from this right. States, in turn, administered elections with few, if any, checks on voter fraud. Early abolitions seized on the contradiction in the three-fifths compromise, which gave slaves representation but not the right to vote, as an argument that combined emancipation with expanded voting rights into one, common cause.

Smith, Michael A., Kevin Anderson, and Chapman Rackaway. State Voting Laws in America: Voting Fraud, or Fraudulent Voters? New York: Palgrave Macmillan, 2015. DOI: 10.1057/9781137483584.0003.

U.S. Constitutional history has its own, unique mythology, and early issues regarding the right to vote are no exception. The delegates to the Philadelphia Convention did not enter Independence Hall with a unified set of specific thoughts about voting. Those that did have an agenda where voting rights were central were deeply divided among themselves as to what the vote would look like. That division, plus a general state-centered view of federalism, combined to minimize the instructions for voting included in the Constitution.

No specific right to vote is mentioned explicitly, nor granted obliquely in the Constitution. The words “right to vote” never appear in the 8,000 words of the document prior to amendment, nor is there an equivalent of the Necessary and Proper Clause for voting. With deference to citizen fears of an overreaching federal government, many bedrock elements such as voting were left to the states, except for the setting of federal election days.

The very word vote is referenced less than ten times in the text of the unamended Constitution. Most of those references describe the process of electing the president; this is noteworthy because there was no popular vote for the president in the original Constitution. Thus, a firewall was erected between the federal government and involvement in the citizen’s vote. More specifically, the Constitution in Article I delegates all voting administration to the states themselves, allowing individual state legislatures to set the qualifications for any and all electors. Coupled with Article V’s guarantee of a republican form of government, the Constitution tacitly acknowledges the need for a vote, while keeping the citizen’s vote at the state level.

Among the Constitutional Convention’s most ethically troubling legacies was the three-fifths compromise. Representation in the U.S. House of Representatives was to be based on a state’s population, based in turn upon a decennial census. How would slaves be counted? Southern states pushed for slaves to count as full individuals for purposes of representation, while northern states believed that if they were not considered citizens with the right to vote, they should not be counted at all, for representational purposes. The end product was a compromise counting slaves as three-fifths of a person for counting representatives, but of course giving them no right to vote. This was ethically abhorrent, yet it may have salvaged a convention bordering on failure (Keyssar 2000). While slaves were not given the right to vote, the Constitution did include them in the counting: a bit of foreshadowing that would later become relevant to the vote, presaging future, federal involvement.

While writing the Constitution, the founders were guided by an ideological argument. At the core of that argument, in turn, was the citizen’s right to influence the direction and laws of one’s own society. This belief marked a departure from other ideological constructions on the ability of man to self-govern, particularly the Divine Right of Kings. Under Divine Right, kings were believed to be infallible due to their being ordained by God to lead. Divine Right relied heavily on the interlaced authority of the church and the government in Europe (Filmer 1680). It also used the power of symbol and myth in order to promulgate the image of the king as a larger-than-life authority figure, inspiring reverence and obedience. All aspects of leadership were bent to reinforce the mythical, awesome power of the king. In law enforcement, for example, punishments, such as torture and public execution, made authority personal, reinforcing subjects’ awe and fear of royal power. This stands in sharp contrast to more modern routines and structures that emphasize the impersonal rule of law (Foucault 1975).

Another major influence on the founders, the work of Baron de Montesquieu, emphasizes the relationship between the right to vote, an elected legislature, and liberty itself. According to Montesquieu, the reason that legislatures were best for protecting the citizens is because they counterbalanced the power of monarchical executives. Also, legislatures are representative bodies of the public at large. The voting public may review their work and hold them accountable in votes for re-election. The legislature was not just a check on the king; it also made governing officials dependent on a network of votes, keeping them in check. Unlike Alexander Hamilton (1788), Montesquieu did not emphasize the need for a strong, unified executive that can take quick action. Instead, Montesquieu was more concerned for accountability. He also preferred the slower, more deliberative processes of an elected legislature (1752). It should be borne in mind that Montesquieu was writing just a few decades before the American and French Revolutions, which would both be directed against kings perceived as tyrannical.

The new, republican view centered on the ability of citizens to intelligently express their preferences through the right to vote, affirming or changing the direction of their government. Although Jefferson and others made reference to men being “endowed by their Creator,” the new focus of government was in fact more secular. Government now had responsibilities toward those on Earth. In the republican view, it is the living people who ordain the government’s power. This is spelled out in the Declaration of Independence:

[T]o secure [Life, Liberty and the pursuit of Happiness], Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government

Heavily influenced by John Locke’s Second Treatise (1689), Jefferson drafted the Declaration with a similar foundation to Thomas Paine’s agitational Common Sense pamphlets (1776), published a few months earlier and also based heavily on the Second Treatise. Locke, Paine, and Jefferson, each argued that governments were “instituted among Men” and had responsibilities toward citizens. That purpose was not only the protection of citizens’ rights, but also their property. In embracing this Lockean view, Jefferson also opened up two critical questions that have been the basis of debate, conflict, and even a Civil War during the course of this nation’s history. Those questions are, first, who has the right to vote? Second, what is the role of property protection in the right to vote? Locke had suggested that only property owners (including small landholders) would need or have a right to vote, because he viewed government’s purpose as heavily intertwined with property rights.

The colonial experience was also intertwined with the desire to vote for a legislature. As “no taxation without representation” was a rallying cry under British rule, there was a desire to cast ballots for representatives among the colonial citizenry. Under the Articles of Confederation that preceded the Constitution, some U.S. states featured property qualifications for voting. Some states continued to place property qualifications on the right to vote even after the Civil War, in certain elections.

Modern-day Americans would scarcely recognize the administration of the vote in early America. Elections were far from the controlled and organized affairs they are now. Communication and transportation technology being limited, every community, if not every precinct, was free to conduct their elections as they saw fit. Despite George Washington’s storied objections, political parties were up and running by 1796 (Independence Hall Foundation 2008). They were seen as private entities, yet integral to the process of voting. Parties were invited to create their own ballots, which could be as simple as chits or as complicated as a printed slate of candidates. Voters would enter polling places, select a Party’s ballot, and drop it into a box. The boxes were often open-topped, giving the voter a sense of which Party would likely win the election. In some one-party dominant areas, not only the voter would be paying attention to who cast ballots for which Party, but also Party volunteers, who were known to respond to ballots cast for the opposing Party with intimidation and violence.

Vote security was nonexistent. The parties would commonly stock hayracks with abundant quantities of food and drink. Potential voters were invited to jump onto the horse-drawn hayracks and spend the day eating and drinking as a guest of the sponsoring political party. The only interruptions to the merriment would be when the hayrack would stop at a polling place—maintaining a spot on the hayrack required getting off and casting a ballot at the appointed polling place. Since voters were not required to provide any form of identification or prior registration to cast ballots, hundreds if not thousands of ballots could be cast by small groups of organized people willing to stuff ballot boxes at multiple locations. Thus the tradition of “vote early and vote often” was present even in the Revolutionary War era.

The limited definition of citizenship

The United States was developing relatively stable, electoral institutions. Yet the citizenship-versus-property issue remained unresolved. It would resurface violently as part and parcel of the debate over slavery. Slave owners and slavery proponents viewed slaves as property, while abolitionists viewed them as citizens denied their rights. The tension is evident as early as the Constitutional founding. The notorious three-fifths compromise acknowledged that slaves have some sort of right to representation—three-fifths that of a citizen—while of course vesting that right in the property owners (slaves themselves being property) in the respective states. In essence, this view held that slaves had certain rights, but those rights were not exercised directly but instead vested in a patriarch: the slave owner. Ironically, this parallels the Divine Right of Kings, with the slave owner displacing the king as caretaker, exploiter, and unquestionable authority. Some pro-slavery advocates even went so far as to vest this relationship with a spiritual dimension, for example citing Paul’s letter counseling the slave Philemon to submit to the divine authority of God and the earthly authority of the slave owner, found in the Bible’s New Testament. This again echoes Divine Right, though more recent Biblical scholars have challenged this reading of Philemon (Borg and Crossen 2010).

The ideas of the American Revolution had featured an important, but restricted, definition of citizenship. In extreme cases, this meant a right to revolution, hence Common Sense and the Declaration. But in less-turbulent times, voting was to be the cornerstone element by which government derives public consent. To the founders, the right to vote was an application of John Locke’s Second Treatise to practical politics, rejecting Filmer’s Divine Right. Democracy as a concept is based on the public being able to express their preferences and change the government when they believe that their natural rights are being denied. The vote is thus the foundation of citizen governance during “normal” (i.e., nonrevolutionary) times.

The ability of the people to choose their leaders and be knowledgeable about public policy was the founders’ guiding light, yet slaves and nonproperty owners were not the only ones excluded. Women were also denied this right in the early republic, being considered wards of their fathers or husbands. Native Americans were mostly excluded as well, as can be seen in unedited copies of the early Constitution, which features the phrase “excluding Indians not taxed” repeatedly in its discussions of citizenship and voting rights. In sum, only a narrow sliver of residents (as opposed to citizens) could actually vote in the early Republic. Yet for all their limitations, the founders had planted the seeds of an argument by insisting that government could not be fully democratic unless citizens had the ballot. The argument would surface again and again throughout American history, for example regarding the citizenship and rights of African Americans, before and after abolition. It is no coincidence that this issue marked the first federal involvement in the right to vote.

Abolition and the right to self-determination

In the African-American quest for freedom, the right to vote was an essential element to the definition of citizenship. Ironically, the connection between voting and freedom was suggested as early as the three-fifths compromise with its odd, unsustainable view that slaves deserved representation but not the right to vote. The abolitionist arguments against slavery in the early 19th century were primarily moral arguments against the institution of slavery, yet abolitionists such as William Lloyd Garrison also pointed to the hypocrisy of proclaiming freedom and justice for all, while using the Constitution and the ballot to justify the holding of other human beings as property (1831). The two central questions left unanswered by the founders—what is a citizen, and how fundamental are property rights—now clashed violently. Abolitions fought for the slaves’ right to be citizens, while slaveholders used their own votes to protect vested property rights in “their” slaves. Politicians from Abraham Lincoln to Stephen Douglass were caught in the middle, furiously trying to bargain compromises that became increasingly desperate, even absurd. As president, Lincoln actually tried to stop the war by offering to buy slaves with savings bonds (Lincoln 1862)! These efforts were to no avail: the citizenship and property rights claims were incommensurable, and Civil War raged onward.

This debate also included the voices of former slaves and free-born black men and women. In 1827, the first African-American newspaper, Freedom’s Journal, proclaimed in an editorial, “too long have others spoken for us, too long has the public been deceived by misrepresentations” Defending their publication as vital to African Americans, Journal editors embraced the idea of universal suffrage as necessary to American public discourse at large, especially when it came to the question of slavery (Russwurm and Cornish 1827). Frederick Douglass recognized the primacy of voting as a measure of democratic government’s performance, saying “The limits of tyrants are prescribed by the endurance of those whom they oppose.”

At the foundation of Douglass’s political thought was the idea that individual liberty could only be protected by the practice of self-government. The rational, moral, intelligent human being acting in self-interest could serve as a restraint against corrupt power. Without voting, the public merely endorses tyranny by default (Buccola 2012).

2

Civil War, Reconstruction, and Retrenchment

Abstract: Immediately after the Civil War, the 15th Amendment was passed to guarantee African Americans the right to vote. Movements such as the National Convention of Colored Men added momentum by conducting widespread voting drives. However, in 1875 and 1876 the momentum shifted. The combined effects of the Minor v. Happersett Court ruling and the end of Reconstruction after the Hayes–Tilden Presidential election led to a new era in which states passed grandfather clauses, poll taxes, literacy tests, “white primaries,” and a host of other restrictions, which were supposedly neutral but in fact served to disenfranchise African Americans, particularly in the South.

Smith, Michael A., Kevin Anderson, and Chapman Rackaway. State Voting Laws in America: Voting Fraud, or Fraudulent Voters? New York: Palgrave Macmillan, 2015. DOI: 10.1057/9781137483584.0004.

The fundamental nature of the right to vote made access to the ballot a central concern for newly emancipated African Americans after the Civil War. In 1866, the National Convention of Colored Men issued a demand for “impartial suffrage” as necessary to citizenship (Lawson 2007). The quest for the ballot was viewed as essential to protecting the newly won freedom of emancipation, but it was also vital to defining and advancing an agenda for a people desperate to use politics for the upliftment of their community. The post-Civil War Reconstruction era was defined by new African-American access to the ballot and an unprecedented level of political engagement.

The passage of 13th, 14th, and 15th Amendments created new opportunities for political activism. The Union Leagues, originally founded in northern states during the Civil War to support the war effort, began organizing in the South to boost the new amendments by helping to register and mobilize voters in southern cities, such as Richmond, Raleigh, and Nashville (Hahn 2003). The work of groups such as the Union League helped to undergird the first sustained government action taken to bring African Americans into the political arena. The ability of the national government to act on behalf of a formally excluded population establishes a pattern in which the goal of political activism for some within the newly freed population is to organize and use the national government to force the entire nation (specifically, state governments) to extend individual rights to all citizens. To define political rights in general, and access to the ballot specifically, as a national concern became a key aspect of the new African-American political class. Two African Americans were elected to the United States Senate: Blanche K. Bruce and Hiram Rev...

Table of contents

• Cover
• Title
• Introduction
• 1  Sowing the Seeds
• 2  Civil War, Reconstruction, and Retrenchment
• 3  Machines, Progressives, and Womens Suffrage
• 4  The 20th Century and the Struggle for Recognition
• 5  A New Era of Retrenchment?
• Conclusion and Policy Recommendations
• Appendix: Kris Kobach, the Man behind the Laws
• Bibliography
• Index