The Right to Vote

by Alexander Keyssar

  An analogy in our time might be the widespread notion that many recipients of welfare, usually black and Hispanic, were “cheating the system” in the 1980s and 1990s. Despite the lack of systematic evidence, Ronald Reagan’s oft-repeated anecdote about a woman who drove a Cadillac to pick up her welfare check seemed persuasive and resonant to Americans who were predisposed to see poor people of color as lazy and dishonest. The late-nineteenth-century reaction to Francis Parkman’s portrait of the electorate was similar: political leaders felt justified in modifying electoral laws based on anecdotes and broadly stated impressions. In both cases, widespread convictions were spawned by germs of fact, cultured in a medium of class and ethnic (or racial) prejudice and apprehension.

  Two Special Cases

  Infamous Crimes

  While revising other features of their electoral laws, states extended the disfranchisement of felons and ex-felons. Roughly two dozen states had taken such action before the Civil War; by 1920, all but a handful had made some provision for barring from suffrage men who had been convicted of a criminal offense, usually a felony or “infamous” crime, one that in common law prohibited its perpetrator from testifying under oath in court. (See Chapter 3 and Table A.15.) In the South, these measures often were more detailed and included lesser offenses, targeting minor violations of the law that could be invoked to disfranchise African Americans.83

  Elsewhere, the laws lacked clear social targets and generally were passed in a matter-of-fact fashion. Constitutional conventions and legislatures sometimes quibbled over the changing definition of felony and over specific lists of crimes that would bring disfranchisement. (Electoral fraud was on everybody’s list.) There also was some disagreement—and some variety, from state to state—regarding the duration of the exclusion. In almost all states, felons were disfranchised while they remained in prison; in many, disfranchisement was implicitly or explicitly permanent, although many states made it possible for ex-felons to be restored to their civil rights, usually by the governor. Rarely, however, were objections voiced to the principle of disfranchisement in either legislatures or constitutional conventions. The courts upheld such laws, concluding that the states had both a right to disfranchise ex-felons and a compelling interest in doing so. In 1885 and 1890, the U.S. Supreme Court validated laws excluding those convicted of bigamy or polygamy from voting in federal territories and in the new state of Idaho.84

  The widespread support for such laws is noteworthy because, as recent legal analysts have pointed out, there has never been a particularly persuasive or coherent rationale for disfranchising felons and ex-felons. In their classical and English origins, these laws were primarily punitive in nature, and the punitive thrust clearly was present in the United States for much of the nineteenth century. Yet the efficacy of disfranchisement as a punishment was always dubious, since there was no evidence that it would deter future crimes, nor (except in the case of voting crimes) did disfranchisement appear to be an appropriate or significant form of retribution. For this reason, perhaps, states in the late nineteenth century drifted toward a different rationale: that disfranchisement of felons was necessary to protect the integrity of elections and—in the words of a much-cited Alabama Supreme Court decision—“preserve the purity of the ballot box.” Proponents argued that men who could not be legally relied on to tell the truth (which was formally why they could not testify in court) would corrupt the electoral process. They also expressed the fear that enfranchised ex-felons might band together and vote to repeal the criminal laws. Both arguments were at best conjectural.85

  Why then were felons and ex-felons disfranchised, so widely and with so little debate? Part of the answer, as Jeff Manza and Christopher Uggen have argued, lies in the increasingly widespread perception that the lower social orders (who were disproportionately represented in prisons and jails) constituted a “racial threat” to mainstream society. Both African Americans and immigrants (whose numbers were rapidly growing) fueled these apprehensions, and felon disfranchisement laws were one means, symbolic as well as substantive, of containing the threat.86 More broadly, the easy, largely unchallenged enactment of these laws stemmed from a conviction that generally was unspoken but infiltrated all debates about suffrage during this period: a voter ought to be a moral person. Although state laws rarely made explicit mention of moral standing as a qualification for suffrage and the difficulty of imposing a morality test was manifest, the idea persisted that there were moral boundaries to the polity. Discerning or agreeing on those boundaries admittedly was difficult—as the debates over pauper exclusions and corruption revealed—but men who had been convicted of crimes were easy to distinguish and label.

  Full membership in the political community therefore depended on proper behavior and perhaps even proper beliefs: coexisting uneasily with the broad claim that the franchise was a right was the resurgent notion that the state could draw a line between the worthy and the unworthy, that it could determine who was fit to possess political rights. Disfranchising felons was, in effect, a symbolic act of political banishment, an assertion of the state’s power to exclude those who violated prevailing norms. It is telling that one of the most important court cases involving these issues dealt with a Utah law that made it a crime (and therefore a cause for disfranchisement) for a man to practice, or even advocate, bigamy. Equally revealing, perhaps, is the fact that the same state legislature that drafted New York’s literacy test expressed its disapproval of the political opinions of some citizens by preventing five legally elected Socialists from taking their seats. The speaker of the New York assembly declared that “socialist ballots” would not be recognized until the party had become “thoroughly American.”87

  Native Americans

  Again, there is no overwhelming political necessity, as in the case of the negroes, requiring us to make citizens of the Indians. When we remember that our country is being invaded, year by year, by the undesirable classes driven out of Europe because they are a burden to the government of their birth; that as many as seventy thousand immigrants have landed on our shores in a single month, made up largely of Chinese laborers, Irish paupers, and Russian Jews; that the ranks are being swelled by adventurers of every land—the Communist of France, the Socialist of Germany, the Nihilist of Russia, and the cut-throat murderers of Ireland—that all these persons may become citizens within five years, and most of them voters under State laws as soon as they have declared their intentions to become citizens—we may well hesitate about welcoming the late “untutored savages” into the ranks of citizenship.

  —G. M. LAMBERTSON, “INDIAN CITIZENSHIP,”

  American Law Review, 1886

  Native Americans continued to occupy a special place in American law and society. At the close of the Civil War, the vast majority of Native Americans, although born in the United States, were not citizens, and they could attain citizenship only through treaties, not through the naturalization laws that applied to white foreigners. Unlike blacks and immigrants, they were not needed for their labor, but the lands that they controlled were coveted by settlers, miners, and railroad corporations. Although extolled as noble savages by the humanitarian reformers who controlled Indian policy for much of the late nineteenth century, they were the targets of a war of attrition, as well as a resettlement program, that rapidly destroyed the way of life of some of the largest tribes. They were also few in number, totaling less than 250,000 at their population nadir in 1900.

  In 1865, most Native Americans were unable to vote, largely because they lacked citizenship, and for the next sixty years the ability of Indians to become citizens traveled a bumpy and circuitous road. The Fourteenth Amendment set things in motion with its declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In response to claims that the amendment effectively transformed Indians into citizens, the Senate Judiciary Committee, in 1870, issued a report rejecting that interpretation
. Native Americans who retained relations with their tribes, the committee concluded, were not born under the jurisdiction of the United States and thus were not covered by the amendment. A year later, a federal district court in Oregon agreed, holding that Indian tribes were “independent political communities” not fully subject to the legal jurisdiction of the national government. In 1884, in the landmark case of Elk v. Wilkins, the U.S. Supreme Court ended debate on the issue by concluding that the Fourteenth Amendment did not confer citizenship on John Elk, an Indian who was born on tribal lands. The Court further maintained that Elk, who had left his tribe and lived in Omaha, could not attain citizenship simply by assimilating: whether he had “so far advanced” as to “be let out of the state of pupilage” was a decision to be made by the nation whose ward he was. Accordingly, Elk’s right to vote—he had brought suit after being unable to cast a ballot in Omaha—was not protected by the Fifteenth Amendment.88

  Nonetheless, it was the formal policy of the United States to encourage Indian citizenship and Indian assimilation into American society. Although Congress continued to grant citizenship through treaties with individual tribes until 1871, the major thrust of policy became the conferral of citizenship on Indians who were abandoning tribal ways and becoming “civilized.” In 1887 Congress passed the General Allotment (or Dawes) Act, which granted citizenship to all Native Americans who “adopted the habits of civilized life,” as well as those who accepted private allotments of what had been tribal lands. (One key goal of the act was to free up tribal lands for white settlement.) Thanks in part to the General Allotment Act and in part to a congressional act passed in 1901, more than half of all Indians were citizens by 1905. This number was augmented after World War I, when citizenship was conferred upon Indians who had served in the military and been honorably discharged. Finally, in response to partisan politics in the West, bureaucratic politics in Washington, and the wartime service of Native Americans, Congress in 1924 declared that all Indians born in the United States were citizens.89

  Meanwhile, states had been taking steps on their own. In Massachusetts in 1869, for example, Republicans and ex-abolitionists who thought it hypocritical to deny Indians the same rights they demanded for southern blacks succeeded in passing legislation declaring all Indians to be “citizens of the Commonwealth . . . entitled to all the rights, privileges and immunities” of citizenship; foreshadowing the Dawes Act, the Indian Enfranchisement Act also provided that all Indian lands would revert to individual ownership and therefore could be sold to non-Indians. By the early twentieth century, as Table A.16 indicates, nearly all states with Native-American populations had enacted similarly double-edged constitutional or statutory provisions. On the one hand, they—explicitly or implicitly—enfranchised some Native Americans, generally those who had assimilated or “severed their tribal relations.” At the same time, states disfranchised Indians who continued to belong to tribes, or were “not taxed” or “not civilized.”90

  The prevailing policy was clear, if difficult to apply: Native Americans could become voters, but only by surrendering or repudiating their own culture, economic organization, and societal norms. Membership in the polity was conditioned on good behavior, on adopting a culture and style of life deemed appropriate by the states that had militarily conquered the Indian tribes. Since good and appropriate behavior was not always forthcoming, many of the states with the largest Native-American populations proceeded to devise new rationales for disfranchising Indians after the Citizenship Act of 1924 was passed.

  Sovereignty and Self-Rule

  An important by-product of the evolution of voting laws, South and North, was the increasingly precise delineation of the powers of federal, state, and municipal governments in determining suffrage law. During Reconstruction, the federal government had asserted its jurisdiction in unprecedented ways with the passage of the Fourteenth and Fifteenth Amendments, as well as the enforcement acts. For several decades thereafter, federal activity to protect the rights enshrined in those amendments persisted, even in the North. Between 1877 and 1893, more than half of all federal appropriations for electoral supervision were expended in New York.91

  Yet the tilt toward the nationalization of the right to vote proved to be both short-lived and fragmentary. Congress’s decisions to adopt a narrow version of the Fifteenth Amendment, to repeal key provisions of the enforcement acts, and not to enact the Lodge Force Bill effectively left the federal government on the sidelines during most contests over the franchise. Washington’s role was circumscribed further by Supreme Court decisions that definitively severed the link between citizenship and suffrage and that interpreted the Fifteenth Amendment as prohibiting only the most flagrant and intentional forms of discrimination. Indeed, the court cases spawned by the Fourteenth and Fifteenth Amendments led to a formal articulation of state supremacy that was merely implicit in the nation’s Constitution. As the Supreme Court declared in Pope v. Williams in 1904, “the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals, in violation of the Federal Constitution.” States in effect could do as they wished, as long as they did not disfranchise men solely and overtly because of race. Had the Wilson amendment passed, of course, the story would have been different: many of the restrictions on suffrage adopted by northern and western, as well as southern, states would have been unconstitutional. But those who had opposed the Wilson amendment because it would inflate the power of the national government had won a long-lasting victory: suffrage in 1915 was not much more of a federal concern than it had been in 1800.92

  The courts also drew increasingly numerous, if sometimes jagged, lines between state constitutional authority and the power of state legislatures. While the states had great freedom to set suffrage qualifications in their constitutions, state legislatures had far less latitude. Suffrage remained a matter of fundamental or constitutional, rather than statute, law: legislatures, as a rule, were permitted to enact laws that concretized or carried out constitutional provisions, but they did not possess the power to alter suffrage qualifications. Practices, though, varied among states; as noted in Chapter 4, several southern legislatures enacted disfranchising laws without bothering to amend their constitutions, and some state courts permitted legislatures to take steps that blurred the boundaries between procedural and substantive regulation. A New York court, for example, found in 1920 that “legislative regulations” could be reasonable even if they burdened citizens unequally: “the wit of man cannot devise a method transcending all inequality and discrimination.”93

  In many states, moreover, the courts allowed legislatures to adopt nonstandard suffrage qualifications in referenda or in elections for offices that were not explicitly named in state constitutions. In 1893, for example, the Florida Supreme Court concluded in the oft-cited case of Lamar v. Dillon that “where the Constitution does not fix the right of suffrage or prescribe the qualifications of voters, it is competent for the legislature . . . to do so.” Such reasoning made it possible for voting to be restricted to taxpayers or property owners in state elections dealing with public expenditures; it also opened the doors for women to vote in school board elections.94

  The same reasoning revived the possibility of municipal franchise qualifications different from those obtaining in state elections. In contrast to their late-eighteenth- and early-nineteenth-century predecessors, however, such qualifications could not be determined by cities and towns alone. As discussed in Chapter 2, the legal subservience of municipalities to states was well established in American law by the mid-nineteenth century: Judge John “Dillon’s rule”—that state power over municipalities was “supreme and transcendent,” that municipalities had no “inherent right of local self-government which is beyond legislative control”—was articulated at length in a landmark treatise published in 1872. Despite several jurisprudentia
l challenges, it remained dominant, in part because conservatives believed that property interests would be better protected by state governments than by cities. Dillon himself supported some taxpaying restrictions on voting and eventually left the bench to become a prominent railroad lawyer. Dillon’s rule, however, did permit municipalities and state legislatures to jointly agree on distinctive suffrage qualifications for municipal elections, particularly in states that enacted “home rule” provisions for cities. Although never widespread, distinctive municipal franchise regulations were adopted in Tulsa; Kansas City; Deer Park, Maryland; and Oklahoma City, among other places, and they continued to surface throughout the twentieth century.95

  The New Electoral Universe

  Though the sovereignty is in the people, as a practical fact it resides in those persons who by the Constitution of the state are permitted to exercise the elective franchise.

  —JUDGE THOMAS M. COOLEY, 1868

  I cannot attempt to describe the complicated and varying election laws of the different States.

  —JAMES BRYCE, 1888

  By the beginning of World War I, the ebullient, democratic political culture of the mid-nineteenth century had given way to a more constrained and segmented political order. Throughout the nation, large slices of the middle and upper classes, as well as portions of the working class, had ceased to believe in universal suffrage—and had acted on their beliefs. In the South, blacks and many poor whites had been evicted wholesale from electoral politics. In the North and West, exclusions were on a smaller scale, but still numerous: depending on the state or city in which he lived, a man could be kept from the polls because he was an alien, a pauper, a lumberman, an anarchist, did not pay taxes or own property, could not read or write, had moved from one state to another in the past year, had recently moved from one neighborhood to another, did not possess his naturalization papers, was unable to register on the third or fourth Tuesday before an election, could not prove that he had canceled a prior registration, been convicted of a felony, or been born in China or on an Indian reservation. Although some women had gained the franchise, and all others would within a few years, the same dense cluster of voting laws applied to them as well. It can be no surprise, in light of this legal history, that turnout at elections dropped during the latter half of this period. Voting was not for everyone.96