SUFFRAGE LIMITATIONS AT THE SOUTH

The committee on political reform of the Union League Club of New York City made a report in December, 1903, on suffrage in eleven states, viz. Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Tennessee, Arkansas, Mississippi, Louisiana and Texas. The report consists of (I) a statement of the provisions of the laws of these states affecting suffrage; (2) a statistical table showing the ratio of total vote to population and the average vote for congressmen in 1892 and 1902 in each of these states and in Iowa and Massachusetts; and (3) an argument on the questions considered to arise upon these facts under the constitution of the United States. It is pointed out that suffrage is greatly restricted by law in the southern states, and it is argued that the restrictions constitute a denial of the right of citizens of the United States to vote within the meaning of the fourteenth amendment. It is contended that the marked decrease in the average vote for congressmen in the South, from 1892 to 1902, is due primarily to the limitations upon the suffrage, and that these limitations were intended to eliminate the negro vote. It is shown that the average vote for congressmen is smaller in the South than in the two states “taken as fair samples of the northern states.” It is accordingly asserted, among other things, that the white population of the South is enjoying an unfair advantage, and it is argued that, as such advantage arises from a denial of the right of citizens of the United States to vote, the representation of the South in Congress and in the electoral college should be reduced. In view of the standing of the Union League Club as a political organization, its effort to make a full and systematic statement of the facts and of the law bearing upon them deserves careful consideration.

In the constitutions of five of the states discussed, viz. Georgia, Florida, Tennessee, Arkansas and Texas, the report fails to find restrictive or unfair clauses; and no complaint is made of the status of these states, except that in Tennessee and in Florida the Australian ballots laws, in practice, include illiterates from 0003 2voting. These ballot laws, are now in such nearly universal use throughout the United States and are so generally approved by public opinion, that an objection to their acceptance and enforcement at the South seems hardly reasonable.

In the remaining six southern states suffrage is restricted by constitutional provisions. Alabama is a fair type of this group of states and, for convenience, that state will be noticed first and with some detail.

The revised constitution of Alabama went into effect November 28, 1901. The statement of its provisions in the committee's report is inadequate, and wholly fails to bring out some of the most significant features of its suffrage clauses. The constitution contains two distinct plans, one temporary and the other permanent. The temporary plan remained in force only until January 1, 1903: 1 but under it all persons registered obtained certificates which entitled them to vote for life, provided they complied with the other requirements of the constitution. 2 Under this temporary plan, persons possessing the prescribed qualifications as to age and residence, and not convicted of crime, were entitled to register(1) if they had honorably served in the war of 1812 or in the Mexican, Indian, civil or Spanish war; (2) if they were lawful descendants of persons who honorably served in the Revolutionary war, in the war of 1812, or in the Mexican, Indian or Civil war; or (3) if they were persons of good character and understood the duties and obligations of citizenship. 3 The permanent plan, in substance, admits to registration those persons only who possess educational or property qualifications, viz.: (1) those who, unless physically disabled, can read and write and have been regularly engaged in some lawful employment for the greater part of the preceding twelve months; and (2) those who own at least forty acres of land on which they reside, or own real or personal property assessed for taxation at a valuation of at least $300, on which the taxes for the previous year have been paid. 4

1Constitution of Alabama, secs. 180, 181. 2 Ibid., sec. 187 3 Ibid., sec. 180 4 Ibid., sec. 181.

Apart from the failure clearly to distinguished between the temporary plan and the permanent plan, the report fails to appreciate 0004 3at least two important restrictions on the suffrage. Registration is only one of the requisites for gaining the right to vote, and the two features of the constitution that have been over-looked, viz., the poll tax and vagrancy clauses, do much more to restrict suffrage than do any of the registration provisions noticed in the report.

Elections occur in November. In order to be entitled to vote at that time, any person who is registered must have paid, by the first day of the preceding February, his poll tax, if subject thereto, for the year 1901 and each subsequent year. 5 It is made a felony to pay the poll tax of another, 6 and, aside from this, the requirement of payment nine months in advance of elections, before the heat campaign begins, makes it practically impossible to procure third persons to make the payment from improper motives. In the actual operation of the law it has been found that many who obtained life certificates of registration under the temporary plan have not paid their poll taxes and have therefore been unable to vote.

5Constitution of Alabama, sec. 178. 6 Ibid., sec. 195.

To entitle one even to registration he must have resided in the state two years, in the country one year, and in the precinct or ward three months next preceding the election at which he offers to vote. 7 This bars nomads and floaters.

7 Ibid., sec. 178.

Furthermore, the permanent plan prescribes as a condition to registration, under the educational test, regular employment for the greater part of the preceding twelve months and, under the property test, either residence on and ownership of a homestead of at least forty acres or the ownership of property taxed upon a valuation of at least $300, upon which the taxes have been paid. So far as concerns persons not registered prior to 1903, these provisions alone bar vagrants and all who are not substantial, settled citizens.

The stress of the criticism urged in the report is on the provisions regarding registration; particularly on the so-called” grand-father and “good character” or “understanding” qualifications for registration under the temporary plan. Oddly enough, practically nothing is said as to the provisions of the constitution 0005 4which more effectually than all others combined bar Negroes from voting. It is probable that no objection can ever be made to the validity of the poll tax and vagrancy clauses, and unquestionably they apply alike to whites and blacks.

Under the conditions existing in Alabama in 1900 and 1901, during the campaign for a constitutional convention, those who favored a revision of the suffrage felt it necessary, in order to carry the call for the convention, to promise those white men who then had the right to vote (1) that they should not be disfranchised by the terms of the new constitution, and (2) that the constitution should be submitted to the voters for ratification or rejection. The Democrats put these pledges in their platform, and the temporary plan is the fulfilment of the promise not to disfranchise white men. If both pledges had not been made, the convention would probably never have been held. If the constitution had not been framed as promised, it probably would never have been ratified. The precedents for preserving the right to vote to citizens who already had it were furnished by Massachusetts and Maine. In the twentieth amendment to the Massachusetts constitution, by which an educational qualification for suffrage was introduced, in 1857, it was declared that “the provisions of this amendment shall not apply ...to any person who now has the right to vote"; and Maine made a similar provision in article 29 of its constitution, adopted in 1892.

How to get rid of the venal and ignorant among white men as voters was a far more serious and difficult problem than how to get rid of the undesirable among the negroes as voters. While it was generally wished by leaders in Alabama to disfranchise many unworthy white men, as a practical matter it was impossible to go further than was done and secure any relief at all. Hence, as the next best thing, the evils of ignorance and venality among the white electorate were reduced to a minimum by making their further lease of life as short as possible.

The long sway of one party had, naturally, put undue political power into the hands of unworthy white men. To get a new constitution at all, it was necessary to appease this element. This was done by giving those who then had the right to vote the right of registration under the temporary plan. To rid the state eventually, 0006 5so far as could possibly be done by law, of the corrupt and ignorant among its electorate, white as well as black, the poll tax and vagrancy clauses were put into the constitution. The evil of having only one party was fully recognized, and it was believed that by securing a plan which would eventually give the state a clean and intelligent electorate, the way was being opened for white men to divide into parties and to vote according to their convictions on economic and public questions.

The predominant purpose of the movement was not to tie the negroes' hands, but to untie the hands of the best of the white men. By means of the prevailing scheme of settling political contests in white conventions and primaries, the negroes had been practically eliminated as an active factor; they were only occasionally appealed to when there were local splits in the Democratic party. So long, however, as there remained a legal possibility of the ignorant gaining control of the local governments in general elections, the intelligent were willing to subordinate their differences of opinion and to continue the operation of a system which, while it had defects, assured their effective political domination in their own communities. Nothing but freedom from such a legal possibility and a thorough, practical test of the new system will persuade the mass of intelligent voters to divide, as they desire to do. The horrors of Reconstruction are still too fresh in the memory of the South for it to be otherwise.

However high the motives of the Union League Club's committee and of those who support the scheme proposed in the committee's report, their conduct is only putting a stumbling-block in the way of those “standing next to the burden,” who want to do the best they can to solve a problem far more difficult than the writers of the report seem ever to have dreamed it to be. Their criticisms of the movement for a restricted suffrage in the South show a lack of sympathy with its real purposes and a misunderstanding and impeachment of the motives of men whose intentions are as worthy as those of their critics. Such a plan as that in the Alabama constitution is not selfish; it is merely practical. It puts a premium on good qualities of citizenship and is well calculated to attain the best and fairest results, not for white men alone, but for negroes also. The criticism of the 0007 6report is directed at the temporary plan without appreciation of its temporary character and without recognition of the fact that it was placed in the constitution for the purpose of securing the permanent plan, framed after the example of Massachusetts and other northern states. Such possibilities of unfairness as were contained in the temporary plan were largely neutralized by other and permanent provisions, which the report has failed to note.

(1) The vagrancy clauses are absolute and bear upon white men and black men alike.

(2) The poll tax clause makes no discrimination and eliminates from the voting lists many who have been registered.

(3) Death and removals from the state will gradually entirely purge the registration lists of all others whose names were unfairly or unworthily placed there prior to 1903.

The principal remaining criticism of the suffrage plan is that registration is in the hands of registrars who have power to discriminate against negroes in the administration of the law. If this criticism is well founded, it is also applicable to the registration system of every other state, including the states of New Hampshire, Connecticut, Massachusetts, Maine, California and Washington, where educational tests similar to the one in Alabama's permanent plan are applied. Indeed, there is no law which is not capable of abuse in administration. It is true that under the temporary plan there was one qualification for registration which was vague and peculiarly subject to discrimination in application ,viz., the “good character” and “good citizenship” clause. 8 Up to January 1, 1903, the registrars had great latitude determining who were good citizens or of good character. In granting life certificates of registration under this clause there was doubtless discrimination against negroes and in favor of white men; but the power so to discriminate was given in fulfilment of the political pledge made by the Democrats to white men who had the right to vote when the constitution was adopted. And if we are to draw inferences, as the writers of the report have done, from the election figures of 1892 and 1902, their own statistics 0008 7show that in Alabama not all of the disfranchised in the latter year were blacks. The negroes constitute 45 per cent of the population of the state. The average vote for congressmen in 1892 was 25,846. In 1902, the year after the new constitution went into effect, the average vote for congressmen was 10,172. The decrease was thus more than 60 per cent.

Constitution of Alabama, sec. 180, subdivision 3.

It may be that under the temporary plan some worthy negroes were denied registration. But every man to whom it was denied had the constitutional right to appeal to the courts, upon simple petition, without expense to himself, to enforce his right to register. 9 This is an unusual and specially favorable protection, which appears to be granted in no state constitutions except in those of Virginia and Alabama; and that this constitutional right of appeal, when resorted to in registration cases, has to some extent, at least, been effective in Alabama, is evidenced by the case of the State v. Peter Crenshaw, 10, wherein, upon application to the court, a white jury protected a negro in his right to registration which had been denied him by the registrars.

9Constitution of Alabama, 186, subdivision 6. 10138 Alabama, 506.

Up to the present time all attacks upon the constitution in the courts, both state and federal, have failed 11. These attacks, it is to be noted, were not aimed at the provisions of the permanent, but at those of the temporary plan; in other words, at the very suffrage provisions which the Union League committee's report criticises. As a matter of fact, even if the supreme court of the United States were to declare the temporary plan unconstitutional, its decision, so far as Alabama is concerned, would be of little effect. It has already been noted, above, that the negroes are not deprived of the privilege of voting so much by the registration provisions of the temporary plan as by the poll tax and vagrancy clauses of the constitution which bear equally upon whites and blacks and which have not been attacked. If the temporary plan were declared unconstitutional, the chief effect of such a decision would be to aid in purging the registration lists, more quickly than nature would otherwise do, of those who were enrolled under the temporary plan without possessing the qualifications prescribed by the permanent plan.

11Giles v. Harris, 189 U.S. 475; Giles v. Teasley, 136 Alabama, 164, 228; 193 U.S. 146 0009 8

The general criticisms of the permanent plan contained in the report especially those relating to its constitutionality, may be disregarded as foreign to this discussion, because they are not aimed at anything peculiar to the South and because the permanent plan affects negroes and white men alike.

The whole argument of the report rests upon the promise that there has been a suppression, and an unfair suppression, of the negro vote. The sole facts presented to prove suppression are statistics, which show a large decrease in the average and total votes in elections for congressmen in southern states from 1892 to 1902 and a much smaller average vote there, particularly in 1902, than in Iowa and Massachusetts. Assuming that the figures quoted are correct, the conclusion of the report by no means logically follows. The report itself shows that in 1902 the average vote for congressmen in Georgia—one of the states, be it noted, against which no complaint is made and in which the laws are admitted to be fair and with without discrimination against the negro—was much smaller than in Alabama; smaller, in fact, than in any southern state except Mississippi. In Georgia according to the report, the decrease in the average vote from 1892 to 1902 was from 19,311 to 3,577, or more than 80 per cent. In the other states without constitutional restrictions (with the exception of Texas, for which the figures are not given in 1892) the decreases were: in Florida, from 17,711 to 5,446, or 69 per cent; in Arkansas from 23,026 to 5,632, or 75 per cent; and in Tennessee from 30,632 to 15,211, or 50 per cent. The average decrease in this class of states was 68.5 per cent. In the states with constitutional restrictions the decreases during the same period were: in Virginia, 56 percent; in North Carolina, 34 per cent; in South Carolina, less than one-half of one per cent; in Alabama, 60 per cent; in Mississippi 69 per cent; and in Louisiana, 80 per cent. The average decrease in this class of states was 50 per cent. The explanation of these changes is obviously not to be found in constitutional restrictions. What is the explanation?

In the first place, the votes were small because there were, except to a negligible extent, no opposition candidates; and in the second place, as the political system resorted to in the post- Reconstruction period has become more firmly established, less and less attention has given to the elections themselves.

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It may be said that while this is true, the negroes failed to vote because they knew it would be useless. If this be admitted, still the single fact there were no opposition candidates, and hence no contests to bring out a full vote, deprives the figures of the probative effect sought to be given them by the report. It is doubtless true that the Republicans knew that if they had nominated candidates, they would not have won; but this does not prove that it would have been necessary to reshort to fraud or suppression to defeat them. On the contrary, so long as the two national party policies were what they have been (except during McKinley's administration) for many years past, the nomination of local candidates by Republicans in the South would have been useless except in a few scattered places. Republican nominations actively supported under such conditions would merely have solidified more firmly the large mass of voters in the Democratic ranks, and this would have meant defeat of the Republicans on a fair vote.

Again, it is a mistaken assumption of fact to say, as does the report, that in their present temper the negroes as a body are anxious to vote.

The true explanation of the small and decreasing average vote in southern elections is that political exigencies have driven the people in the South more and more into the habit of settling finally in Democratic primaries and conventions, particularly in primaries, whatever political differences exist among them. The result is that it is now no unusual thing for the number of votes cast in a general election to fall to very small proportion, sometimes as low as from ten to twenty-five per cent, of the vote cast in the nominating primary for the same candidates. The questions at issue having been settled in the primary, the election itself is a mere legal formality, to which no more attention is given than is necessary to record the result of the primary. Thus it has come about that people in the South have accustomed themselves to take part in the choice of their officials almost entirely by the indirect method of sharing in the selections of the candidates of one party.

Doubtless it can also be shown by statistics that in those districts in northern states where elections are uncontested by reason 0011 10of the overwhelming predominance of one party, the average vote cast in congressional elections is no larger than that shown in the Union League committee's report for several of the southern states. This is certainly true of some such districts. For instance, in 1902 the total vote in the ninth New York district was 13,910; in the fourth Illinois, 15,865; and in the fifth Illinois, 13,913. In the same year the average vote of the congressional districts in Tennessee was 15,211; in North Carolina, 19,749; and in Texas, 21,905. Furthermore, the excess of the average vote for congressmen in some of the states of the far West over that cast in the East is much greater than the excess shown by the report in northern over southern states. Mr. Charles A. Gardiner, in discussing this disparity in average congressional votes, has pointed out that

Rhode Island's vote is 1.59 times as great as Alabama's, but South Dakota's is 3.39 times as great as Rhode Island's. Vermont's is 2.22 times as great as Florida's, but Utah's is 3.01 times as great as Vermont's. Maine's is 2.36 times as great as Georgia's, but Colorado's is 3.48 times as great as Maine's.

It would be easy to suggest circumstances which explain, in part at least, the small votes in the New York and Illinois districts and the large votes in the far West, and the showing here made is perhaps not of special significance; but the figures given are worth referring to, because they illustrate the fallibility of conclusions based solely on the numbers of votes cast.

Virginia, North Carolina, South Carolina, Mississippi and Louisiana each have a constitutional suffrage scheme similar in general purpose to Alabama'sb, but varying in details. An examination of the report's criticisms as to these states will show that they may be answered by what has been said as to Alabama. In all of them there is an educational qualification for registration and, aside from the educational and property qualifications, the parts of their schemes objected to, with the exception noted hereafter in the case of Mississippi, are temporary in character.

The two clauses upon which practically all of the complaint in the report is concentrated are lthe “grandfather” and “good character” or “understanding” clauses. Four states have the 0012 11“grandfather” clause, viz., Virginia, Alabama, North Carolina, and Louisiana. In Virginia the right of registration under this clause extended to soldiers and sailors who served in time of war prior to 1902 and to their sons, while in Alabama the right was not limited to sons but extended to lawful descendants. In Alabama the clause ceased to be operative January 1, 1903, and in Virginia, December 31, 1903. The North Carolina constitution contains a square educational qualification, but up to December 1, 1908, it excepts from the operation of the educational requirement persons who had the right to votec prior to 1867 and their lineal descendants. In Louisiana a similar clause, extending, however, only to sons and grandsons, ceased to be operative in 1898.

So far as the war service qualification is concerned, it is to be noted that in every southern state some negroes could have registered under it. In Alabama, for instance, one out of three regiments from the state in the Spanish war was composed of negroes; and if we may take as a basis of estimate the number of negroes in the Civil war. It is not unusual in northern states to reward war service by favorable provisions in suffrage and public service laws. Massachusetts has for many years made such a discrimination in in its election laws.

The real “grandfather” clause, based on descent from a voter, has never existed except in North Carolina and Louisiana. In the former it will end in 1908; in the latter it ended in 1898. It was probably suggested to these two states by the provision in the Massachusetts constitution making the right to vote in 1857 a sufficient qualification for registration. In North Carolina, down to 1835, “free persons without regard to color claimed and exercised the franchise,” 12 and the free negro population of that state in 1830 was 19,543.

12State v. Manuel, 4 Devereux and Battle, N.C. Law Reports, pa. 25.

There are “understanding” or “good character” clauses in the constitutions of four states, viz., South Carolina, Alabama, Virginia and Mississippi. In South Carolina they ceased to be operative in 1898, and in Alabama and Virginia in 1903. In Mississippi it is of the permanoent plan that one who cannot 0013 12read the constitution, but can understand a section of it when read to him and give a reasonable interpretation thereof, is entitled to registration if he possesses the other usual qualifications. This clause is not temporary merely, but the possibility of unfair use of it is limited by poll tax, taxation and vagrancy clauses, similar to, but more restrictive than, the corresponding clauses in the constitution of Alabama; and Mr. John Sharp Williams has stated on the floor of Congress that there are more negroes than there are white men who get admitted to the suffrage and vote in Mississippi under this “understanding” clause-presumably because of the unwillingness of white men to run the risk of displaying ignorance. It may be noted, too, that the suffrage provisions of Mississippi are no more capable of abuse than those of Vermont, where, for more than a century the constitution has required that voters must be “of a quiet and peaceable behavior,” and where a statute provides that “no person shall be admitted ...to vote at an election until he has obtained the approbation of the board of civil authority of the town in which he resides.” And it is to be further noted that the attack on the validity of the suffrage clauses of the constitution of Mississippi has failed in the court of last resort. 13

13Williams v. Mississippi, 170 U.S., 213.

It is not asserted by any one that the power of Congress, under the fourteenth amendment, extends further than to reduce representation in proportion to the number of male citizens of the United States, twenty-one years of age, whose right to vote is wholly denied, or is partly denied, i.e., abridged. In the exercise of this power by Congress, the number of votes cast in general elections cannot be taken as a test of the number who have the right to vote unless it is established that in all the states the proportion between those actually voting and those denied the right to vote is the same. If the proportion voluntarily refraining from voting is variable in the different states, then the number of votes cast cannot be made the basis for ascertaining how many were denied the right to vote. In fact, as has already been shown, the number of votes cast in general elections at the South does not enable us to ascertain the number of citizens who share in the selection of their representatives. Still less does it 0014 13enable us to determine what proportion of the adult male population has been legally disfranchised. Between 1892 and 1902 the decrease in the average vote for congressmen was 18.5 per cent greater in those states in which no constitutional restrictions exist than in those states in which such restrictions have been adopted. As the restrictions were not the operating cause in the former group of states, the decrease in the latter group may justly be attributed to other contemporaneously operating causes.

Except as regards participation in rebellion or other crimes, the fourteenth amendment makes no distinction between the causes which may induce the denial of the right to vote. Whatever the cause may be, Congress is not empowered to do more than penalize the denial by a proportionate reduction of representation. It appears to be the opinion of the writers of the report, and it is certainly the view of Mr. Crumpacker, that reduction should be as rigorously imposed in the case of fair as in that of unfair denial: in case of denial because of ignorance as in that of denial because of color. It is asserted that it is unfair to allow each state representation in proportion to the sum of both voters and non-voters, when the proportion of the disfranchised varies in different states, because this gives the votes of one state greater weight in federal affairs than the votes of another state. Even though, for the sake of argument, this point be conceded, and though it be also conceded that Congress has the constitutional power to make the change upon such grounds as are furnished by the new southern constitutions, those who propose to change the basis of representation from the basis of population, on which it has so long rested, assume the burden of showing that the new basis would be better than the old.

There has been much vague talk about the ease of determining the exact number of legal electors in each state; but excluding suggestions of what is merely fantastic or obviously impossible of execution, no definite scheme is proposed by the Union League committee or has been proposed by others except to take the actual vote cast in federal elections. A serious, if not fatal, objection to such a scheme is that it would furnish a very strong motive for fraud in elections. It is easy to ascertain with a fair degree of accuracy the population of a state. 0015 14So many other things than the basis of representation are involved, there are so many motives for getting at the truth and there are so many ways of checking misstatements, that we may regularly assume that the census is fairly correct. On the other hand, if by law representation were placed on the basis of the number of votes cast, the dominant party would exert itself to the utmost in padding the election returns of the community where it was in control. And in districts where parties are fairly equal, the natural desire of each party to keep its antagonists within strictly legal limits, which now produces a wholesome vigilance and control, would be modified by a common interest in making the election returns show as large a vote as possible. There could hardly be a greater inducement to corruption or a higher reward to tricksters. Assuming that election results are now fairly ascertained and reported in Iowa and Massachusetts, are we so sure that ballot boxes are not stuffed in Ohio and Pennsylvania that we may be certain that, if representation were based on the number of votes, Ohio and Pennsylvania would not soon have more than their fair share of congressmen and electoral votes? If not it is hard to see how, by the scheme proposed, Iowa and Massachusetts would gain relief from the form of injustice of which the report complains.

In any attempt to apportion representation on the basis of the number of votes cast, a further difficulty would perhaps be encountered by reason of the fact that in a few western states women vote in federal elections. The fourteenth amendment of course applies to the denial of the rights of male citizens only, and for purposes of comparison it would be necessary to ascertain what proportion of the total vote in these western states was cast by men.

Restrictions upon the franchise have long existed in a number of northern states, particularly in New England. To change representation now from the basis of population to that of the average vote cast would patently be a punitive measure aimed at the South. If the principle of representation on no other basis than the number of votes cast is sound and wise, why has not a corrective been applied before? The policy of rewarding those who learn to read and write by giving them a vote has been permitted 0007 15to remain in operation in New England for many years as an influence tending to reduce illiteracy. Now ewhen the South, still so far away from victory in the great war it is making against illiteracy, offers the same premium to her citizens as New England has long and with profit offered, it is proposed either to punish her by loss of influence in Congress and in electoral college or to force her, in order to retain her proportionate representation, to restore to ignorance the political power which she desires to offer as a premium upon intelligence. And this alternative is to be imposed upon her because, in order to establish an educational qualification, it was necessary for her, as it was necessary in 1857 for Massachusetts, to preserve the rights of those illiterate persons who already had the suffrage.

That all is wise, that all is fair, or that all is prudent in the South, no one can truthfully assert. But may not the South ask from everyone time and full consideration of all the facts before the verdict of the American people upon her peculiar suffrage problem is made up? Francis G. Caffey.

New York City.