The Right to Vote

by Alexander Keyssar

  Intense as apprehensions about poor European immigrants may have been, they paled in comparison to American attitudes toward the Chinese and other east Asians: by the final quarter of the nineteenth century, most Americans—and especially those on the West Coast—wanted not only to keep the Chinese from voting but to halt Chinese immigration and even deport those who were already here. The center of anti-Chinese agitation was California, which housed a sizable population of Chinese migrants (but less than 100,000), many of whom had been recruited to help build the nation’s railroads. Feared because of their willingness to work for low wages and despised for racial and cultural reasons, the Chinese had never been a significant political presence because they had almost always been treated as nonwhite and therefore ineligible for citizenship. Nonetheless, the Chinese became the target of fierce racism during the depression of the 1870s, one consequence of which was the passage of a series of federal laws, beginning in 1882, that strictly limited and then halted Chinese immigration. (Later variants of the law also banned the Japanese.) Such restriction, according to a congressional committee, was necessary in order to “discourage the large influx of any class of population to whom the ballot cannot be safely confided.” It was widely agreed that the Chinese, “an indigestible mass . . . distinct in language, pagan in religion, inferior in mental and moral qualities,” constituted such a class.40

  But these federal laws were not sufficient to satisfy western xenophobes. In California in the late 1870s, anti-Chinese agitators, led by small businessman and Irish immigrant Denis Kearney, took command of the fledgling Marxian Workingmen’s Party and used it as a vehicle to capture control of the San Francisco city government and gain significant influence in state politics. The program of Kearney’s party, reminiscent of the Know-Nothings, contained an amalgam of progressive, anti-big business (and antirailroad) proposals, rhetoric denouncing the mainstream political parties, and a slew of measures designed to remove the Chinese from the state’s economic and political life. One proposal even called for disfranchising anyone who hired a Chinese worker.41

  Although working class and lower middle class in origin, Kearney’s movement quickly succeeded in garnering broad support for the anti-Chinese elements of its program. As a result, the California Constitutional Convention of 1878-1879, heavily populated by Workingmen’s delegates, passed almost without objection a series of anti-Chinese articles. One delegate claimed that without such laws, California would become “the mercenary Mecca of the scum of Asia—a loathsome Chinese province.” Although many of these measures were thrown out by the courts, the suffrage provision of the 1879 constitution remained in force until 1926. It specified that “no native of China” (the wording was aimed at circumventing the Fifteenth Amendment’s ban on racial barriers) “shall ever exercise the privileges of an elector in this State.” The convention’s formal address to the people of California declared that this article was “intended to guard against a possible change in the naturalization laws so as to admit Chinese to citizenship.” Similar provisions appeared in the constitutions of Oregon and Idaho.42

  Educated Voters

  A knowledge of the language of our laws and the faculty of informing oneself without aid of their provisions, would in itself constitute a test, if rigorously enforced, incompatible with the existence of a proletariat.

  —CHARLES FRANCIS ADAMS, JR.

  “PROTECTION OF THE BALLOT ” (1869)

  The great danger of the proposed reform (?) is that it strikes at the root of free government by substituting a qualification of acquirement for the qualification of nature, i.e., Manhood, the only qualification that can safely be set upon the republican franchise. . . . If a republic can be got to admit that the right to vote is dependent upon the ability to read and write it may just as consistently decide that that right is a privilege dependent upon the ability to pay a certain amount of taxes.

  —Coast Seamen’s Journal, 1896

  Perhaps the most popular method of constricting the electorate was the literacy or education test. Massachusetts and Connecticut had adopted such tests in the 1850s, and support for them became widespread beginning in the 1870s, as the memories and taint of Know-Nothingism faded. Requiring voters to be literate, particularly in English, had a number of apparent virtues: it would reduce the “ignorance” of the electorate and weed out sizable numbers of poor immigrant voters (outside of the South, the native-born population was almost entirely literate); moreover, it would do so in a way that was ideologically more palatable than taxpaying restrictions or waiting periods for the foreign-born. Literacy tests did not overtly discriminate against particular classes or ethnic groups, and illiteracy itself was a remediable shortcoming. While the federal government was debating an education test for citizenship, the states began to entertain the possibility of imposing their own tests on potential voters.

  An indirect and limited means of promoting a literate electorate was the adoption of the secret or Australian ballot (which first appeared in Australia in 1856 and then was implemented in England in 1872). For much of the nineteenth century, voters had obtained their ballots from political parties: since the ballots generally contained only the names of an individual party’s candidates, literacy was not required. All that a man had to do was drop a ballot in a box. Since ballots tended to be of different sizes, shapes, and colors, a man’s vote was hardly a secret—to election officials, party bosses, employers, or anyone else watching the polls. (In theory, a voter could write his own ballot, or “scratch” names from a party ballot, but it was difficult to keep such actions confidential.) The Australian ballot was an effort to remedy this situation and presumably the corruption and intimidation that flowed from it: it was a standard ballot, usually printed by the city or state, containing the names of all candidates for office; the voter, often in private, placed a mark by the names of the candidates or parties for whom he wished to vote.43

  The first American experiment with the Australian ballot, in Louisville in 1888, was rapidly followed by its adoption almost everywhere in the United States. Despite (or perhaps underscored by) the opposition of machine politicians, the democratic virtues of secret voting were widely apparent. The Australian ballot was, however, an obstacle to participation by many illiterate foreign-born voters in the North, as well as uneducated black voters in the South. In some states, this problem was remedied by expressly permitting illiterate voters to be assisted or by attaching party emblems to the names of candidates; in others, it was compounded by complex ballot configurations that easily could stymie the illiterate. (An Ohio court in 1909 issued a nonbinding dictum questioning whether the state’s ballot laws constituted an unconstitutional, back-door education test.) In more than a few states, including New York, rules governing the physical appearance and comprehensibility of the ballot were a partisan battlefield for years. (See Table A. 13 .)44

  Both before and after adoption of the Australian ballot, many states considered adding more direct and robust literacy tests to the qualifications required of voters. The argument for doing so was three-pronged. Its core, of course, was that illiterate men lacked the intelligence or knowledge necessary to be wise or even adequate voters. A voter who cannot read, insisted E. L. Godkin, “may be said to labor, for all political purposes, under mental incapacity.” A delegate to the Michigan Constitutional Convention of 1907 maintained similarly that “it is of the highest importance that any man who is called upon to perform the function of voting should be not only intelligent but also be able to find out for himself what the real questions before the public are.” A second justification, aimed particularly at new immigrants, was that English-language literacy was essential for the foreign-born to become properly acquainted with American values and institutions. The third was that tying voting to literacy would encourage assimilation and education, which would benefit American society as well as immigrants themselves.45

  Reasonable as these arguments sounded, they often sparked vehement opposition, muc
h of which was grounded in the (accurate) perception that literacy requirements discriminated against foreign-born citizens and were designed to reduce their electoral strength. In New York, where education tests were proposed at constitutional conventions in 1846, 1867-1868, 1894, and 1915, a delegate derided them in 1915 as “another attempt upon the part of the rural communities of this State to restrict the voting capacity of the city of New York where the greatest number of foreigners have their homes.” In many states, opponents attacked the proposals as shameful revivals of Know-Nothingism, insulting to immigrants and violating American traditions: “if literacy were a valid test of voting . . . nearly fifty percent of our early settlers . . . the men who are idolized to-day as the pioneers of civilization . . . would not be entitled to vote.” Virtue and intelligence were not confined to the literate, and it was fundamentally unfair to deny people the rights, while imposing the obligations, of citizenship. “You will disfranchise many a man who understands what he is voting on just as well as we do,” declared a Michigan delegate. “If a man is ignorant, he needs the ballot for his protection all the more,” insisted a New York Democrat in 1868. “If you disfranchise a man because he cannot read and write,” argued a member of Missouri’s convention in 1875, “then, in my judgment you ought not to call upon him to repair the public highways, you ought not ask him to pay taxes . . . you ought not to call upon him when the enemy invades your country.” One of his colleagues even satirized the proposed literacy test and the benefits that it would purportedly bring to his state:We might go a step further, and I have no doubt my friends will join me in this. It is desirable that a man should not only know how to read and write but that he should be educated in the higher branches. We might graduate this thing, and say that in 1876 he shall read and write, that in 1878, at the next biennial election he should understand Geography and that in 1880 he shall understand Arithmetic, and we might thus proceed gradually from Arithmetic to English Grammar, and from English Grammar to History, Moral and Mental Philosophy . . . we should have a generation by the time the 19th century closes the most intelligent, the most prosperous, the most happy here in the State of Missouri upon the face of the habitable globe.46

  The opposition was sufficiently strong that most states outside of the South declined to impose literacy tests. Not surprisingly, northern Democrats, who counted the urban poor among their constituents, generally voted against education requirements. So too did politically organized ethnic groups, regardless of their party affiliation—which helps to explain why no English-language literacy tests were imposed in the Midwest: the German and Scandinavian communities of the Midwest, though often allied with the Republicans, vehemently opposed education requirements. Missouri rejected a literacy test in 1875, as did Michigan in 1907, and Illinois on several occasions, up to and including 1920. In New Mexico, a sizable Spanish-speaking electorate went so far as to write into the state’s first constitution that “the right of any citizen . . . to vote . . . shall never be restricted, abridged, or impaired on account of inability to speak, read, or write the English and Spanish languages.” In New York, the Democrats, backed by the Irish and later the Italian and Jewish communities, successfully resisted a test until after World War I.47

  Nonetheless, by the mid-1920s, thirteen states in the North and West were disfranchising illiterate citizens who met all other eligibility requirements. (See Table A.13.) In all of these states, the Republican Party was strong; several had large immigrant populations that played important roles in party competition; a handful of others were predominantly rural states with small but visible clusters of poor foreign-born voters; several also had significant Native-American populations. In Massachusetts and Connecticut, Republicans were able to beat back recurrent Democratic efforts to repeal the laws that had been passed in the 1850s. Massachusetts, in 1889, demanded that anyone who had not voted for four years had to take a new literacy test; by a ten-to-one majority, voters in Connecticut in 1895 endorsed an amendment specifying that literacy had to be “in the English language.” Wyoming, where only 2 percent of the population was foreign-born, instituted a literacy requirement in 1889 both to disfranchise miners and guard against a future influx of immigrants.48

  Five years later, California enacted a constitutional amendment that disfranchised any “person who shall not be able to read the Constitution in the English language and write his name.” The amendment (a precursor of which had been defeated in 1879) originated more in grassroots pressure than in organized partisan conflict. The idea first was broached in the assembly by a Republican veteran of the anti-Chinese agitation: bipartisan opposition to it crumbled in the face of a petition campaign and then an advisory referendum signaling that nearly 80 percent of the electorate supported an education requirement. Aimed diffusely at the Chinese, Mexican Americans, “the ignorant foreign vote,” and “hosts of immigrants pouring in from foreign countries,” the amendment—which contained a grandfather clause exempting current voters—then was passed by the legislature with little opposition.49

  Remarkably, New York, which had the largest immigrant population in the nation, also passed a constitutional amendment instituting a literacy requirement in 1921: prospective voters were obliged either to pass a stringent English-language reading and writing test administered by the Board of Regents or present evidence that they had at least an eighth-grade education in an approved school. Although similar proposals had been defeated in earlier decades, the Republican-dominated legislature, backed by reform organizations such as the Citizens’ Union, succeeded in pushing the amendment through in the aftermath of the war and the antiradical, anti-immigrant Red Scare of 1919. The amendment, which had the potential of disfranchising, among others, hundreds of thousands of Yiddish-speaking Jews, was backed overwhelmingly by upstate voters and even received a majority in New York City. Support for a literacy test also may have been strengthened by the recent enfranchisement of women, which was believed likely to “produce 189,000 more illiterate voters.”50

  The potential impact of these literacy laws—all of which were sanctioned by the courts—was enormous. According to the census (which relied on self-reporting), there were nearly five million illiterate men and women in the nation in 1920, roughly 8 percent of the voting-age population. Other sources suggest that in fact the figure was much higher. Twenty-five percent of men who took an army literacy test during World War I, for example, were judged to be illiterate and another 5 percent semiliterate. To be sure, education tests were not always rigorously administered, and several states “grandfathered” men and women who could already vote. Still, literacy requirements, North and South, could be a potent weapon. In New York (the only locale for which data exist), roughly 15 percent of all those who took the English-language literacy test between 1923 and 1929 (55,000 persons out of 472,000) failed; it seems safe to assume (as did contemporaries) that many more potential voters did not take the test because they thought they had little chance of passing. Thus a reasonable estimate is that a minimum of several hundred thousand voters—and likely more than a million—were barred by these tests, outside of the South. In 1900, one reformer, echoing others, lamented that a literacy test “does not go far enough: it places the hod-carrier who knows his alphabet on a level with the President of Harvard College.” Yet there were surely some hod carriers who did not know their alphabet well enough to attain that exalted parity.51

  Migrants and Residents

  No one knows better than the learned counsel on the other side and the lawyers of this committee the difficulty in modern times of proving a person’s residence, no matter what his position in life may be. It has required the Supreme Court to tell Nat Thayer and William F. Weld and John H. Wright where they lived. And the more migratory the population, the poorer the person, the less worldly effects with which he is endowed, the more difficult becomes the question at any particular day or hour where he is residing . He is not a householder, he owns not even a trunk, his worldly goods are on his b
ack or in his pocket, and where he lives it is difficult, of course difficult, to say, whether it be in a palace on the Back Bay or in a pigstye in Ward 17.

  —ARGUMENT OF ARTHUR T. JOHNSON IN A CONTESTED

  ELECTION CASE, MASSACHUSETTS, 1891

  Arthur T. Johnson was right: the difficulty of defining or establishing residence indeed was becoming more complex “in modern times,” and “the poorer the person,” the greater the complexity. As a historian of Boston would discover almost a century later, that city’s population was extremely mobile in the 1880s, and rates of mobility rose as one descended the occupational hierarchy. In the city as a whole, only 64 percent of all residents in 1880 were still living there a decade later; for blue-collar workers, the proportion was substantially lower. Indeed, the number of persons who lived in Boston at some point in the 1880s was three times as large as the number who ever lived there at the same time. Boston was not unusual—nor were the 1880s.52

  Given the peripatetic lives of Americans in general and workers in particular, it is hardly surprising that residency qualifications for voting often were in dispute. In contrast to other dimensions of electoral law, however, these disputes more often were juridical than political. Court cases abounded as citizens challenged their exclusion from the polls (or the inclusion of others) because of their failure to meet residency requirements. At the heart of such conflicts was the difficulty of defining residence, particularly in light of the increasingly accepted legal notion that sheer physical presence in a community for a specified length of time was not sufficient for a person to be considered a resident. As the Supreme Court of Colorado put it in 1896, Physical presence thus had to be accompanied by the intention of remaining in a community for what the courts came to describe as “an indefinite period.” Although the concept was reasonable, intention could be difficult to ascertain or prove. Consequently, courts found themselves evolving criteria to gauge the intentions of both individuals and groups (such as ministers and railway workers, who were often on the move) as they tried to apply broadly stated laws to extremely varied situations. On the whole, the insistence on intention tended to make legal residence harder to establish, especially for men whose occupations demanded mobility, but the rules were frequently interpreted with considerable sensitivity to individual circumstances.53