The “Grandfather Clauses” are, in a real sense, peculiar to the Southern States, though there are a few somewhat similar provisions in other States. For instance, Illinois, by its Constitution of 1870, allowed those to vote who had the right to vote on April 1, 1848, provided, of course, they satisfied the age, sex, and residence qualifications. When Maine added its educational requirement in 1893, it provided that this qualification should not apply to anyone who had the right to vote in January, 1893, or to anyone sixty years of age at that time. Massachusetts had made a similar provision in 1857. The Constitution of Wyoming of 1889 had said that nothing in it, except the provisions about idiots, lunatics, and convicts, should be construed to deprive any one of the right to vote who had that right at the time of the adoption of the Constitution. New Hampshire does not allow paupers to vote, but it provides that one who served in the Rebellion and was honorably discharged shall not be disfranchised because he has received aid from the public. In the Philippines, one unable to satisfy the educational or property test, may, nevertheless, vote if he held a substantial office under the Spanish régime.
The principle of the “Grandfather Clause,” in short, is that one who is not able to satisfy either the educational or property tests may, nevertheless, continue to be a voter for life if he was a voter in 1867 or is an old soldier or the lineal descendant of such voter or soldier, provided he registers prior to a fixed date. Alabama permits all who served honorably in the forces of the United States in the War of 1812, the War with Mexico, any war with Indians, the War between the States, the War with Spain, or in the forces of the Confederate States or of the State during the War between the States and the lawful descendants of those and all who are of good character and who understand the duties and obligations of citizens under a republican form of government, to register before December 20, 1902. The clause in the Georgia Constitution is like that of Alabama, except that the privilege is extended to veterans of the Revolutionary War and their descendants, and the character and understanding clause is permanent. To take advantage of the “Grandfather Clause” in Georgia one must register before January 1, 1915. Louisiana provided that one entitled to vote in any State January 1, 1867, son or grandson of such a one twenty-one years old or over in 1898, or a foreigner naturalized before January 1, 1898, who had resided in the State five years preceding his application for registration, might register before September 1, 1898. North Carolina allowed one who had the right to vote on January 1, 1867, and the lineal descendant of such a one to be registered prior to December 1, 1908. Before January 1, 1898, one could register in South Carolina who could read the Constitution of the State or understand and explain it. In Virginia one might register up to 1904 who, before 1902, served in the army or navy of the United States or of the Confederate States or of Virginia or who was the son of such a one, or who owned property on which the State tax was one dollar, or who was able to read and explain or to understand and explain the Constitution of the State. Mississippi has no “Grandfather Clause.”
In Alabama, Georgia, and Virginia, the fact that one was a soldier enabled him to register under the “Grandfather Clause”; in Louisiana and North Carolina, that he was a voter in 1867. In each State the lineal descendants of such soldiers or voters in 1867 might register under the “Grandfather Clause.” In Alabama one might register, though he was not an old soldier or descendant of one, if he understood the duties and obligations of citizenship and was of good character. In Virginia and South Carolina, one could register under the “Grandfather Clause” if he could understand and explain the Constitution when read to him; and, in Virginia, if he owned property taxed as much as one dollar a year.
The “Grandfather Clauses” are all temporary. Those classes of men covered by the clauses are given a certain time within which to have their names entered on a permanent registry. If they are once entered on the permanent register, they are voters for life unless excluded because of some crime or because they become public charges. If they fail, however, to register within the limited time, and still wish to become electors, they must satisfy the same tests as other applicants for registration. For instance, one who could vote in North Carolina in 1867 might have his name entered on the permanent register prior to December 1, 1908, and thereby become a voter for life, though he had neither property nor literacy; if he failed to register by that date, he had to satisfy the educational test as any other applicant would have to do. The length of duration of the “Grandfather Clauses” varies from a few months to several years. Thus, the “Grandfather Clause” of South Carolina was of avail from 1895 to 1898; of Louisiana, from May 16, 1898, to September 1, 1898; of North Carolina, from July 1, 1900, to December 1, 1908; of Alabama, from 1901 to 1903; Virginia, from 1902 to 1904; and in Georgia, it extends from 1908 to 1915. It will be seen that Georgia is the only State in which the “Grandfather Clause” is still in force. All who registered within the dates given above are still electors and will continue to be as long as they live unless excluded from the suffrage because of crime or the like; those who have not registered under the “Grandfather Clauses” cannot do so now, except in Georgia.
The “Grandfather Clauses” are more nearly race distinctions than any other sections of the suffrage laws for the reason that so many white men in the Southern States and so few Negroes are either old soldiers or descendants of old soldiers or had the right to vote in 1867. Yet they are not, technically speaking, race distinctions because, if one was a veteran or son of one, he might register regardless of his race or color. As a matter of fact, a considerable number of Negroes in the Southern States, who were Federal soldiers in the Civil War, have registered under the “Grandfather Clauses.”
The “Understanding Clauses” do not have as large a place in the suffrage laws of the Southern States as is commonly believed. In only two States—Georgia and Mississippi—is the “Understanding Clause” permanent. In Georgia, one may register if he is of good character and understands the duties and obligations of citizens under a republican form of government, although he has neither education nor property. In Mississippi, one who cannot read may register if he can understand and reasonably interpret the Constitution when read to him. A distinction must be made between these two “Understanding Clauses.” In Georgia the requirement is the understanding of the duties of citizens of a republican form of government; in Mississippi it is understanding the State Constitution when read. In three other States—Alabama, South Carolina, and Virginia—the “Understanding Clause” of the Mississippi type is part of the “Grandfather” section, and became inoperative with the “Grandfather Clauses.” The Georgia provision which allows one to register, regardless of education or property, if he is of good moral character has a prototype in the Constitution of Connecticut which requires all electors to be of good moral character, and the Constitution of Vermont which requires the electors to be of quiet and peaceable behavior.
It cannot be doubted that the permanent “Understanding Clauses” of Mississippi and Georgia lend themselves to race discrimination. The Constitution of Mississippi provides that the applicant for registration must be able either to read or understand and reasonably interpret the Constitution. The registrar who so desires may easily disqualify members of one race by asking them to explain more difficult passages of the Constitution or by requiring of them a more scholarly interpretation of such passages than he demands of members of the other race whom he desires to have qualify as electors. In Georgia the registrar who passes upon an applicant’s understanding of the duties and obligations of citizens under a republican form of government may set a higher standard for one race than for the other.
Certain classes of persons are excluded from the franchise because they are considered incapable or unfit to take a hand in governmental matters. The classes excluded are practically the same in all the States, and there is slight evidence of any race distinction in such cases. The following States do not allow paupers to vote: Delaware, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Texas, Virginia, and West Virginia. Other States, including Louisiana, Missouri, Montana, Oklahoma, and South Carolina, exclude the inmates of public institutions of charity, Louisiana and Oklahoma making an exception of Soldiers’ Homes. Practically all the States exclude idiots and insane persons from the suffrage. Other classes, though not excluded from the suffrage, are not allowed to get the required residence to become electors. Thus, in a number of States, students in schools, unless self-supporting, do not get the required residence by living at the school. In a great majority of the States, soldiers and sailors in service do not gain an electoral residence in a State, county, or precinct by being stationed therein. California, Idaho, Nevada, and Oregon exclude all but American-born Chinese. Where the Chinese, because of the Federal naturalization laws, are incapable of becoming citizens, they cannot be electors, because all the States require the electors to be either citizens or persons who have formally declared their intention to become citizens. Idaho, Maine, Michigan, Minnesota, Mississippi, North Dakota, Oklahoma, Washington, and Wisconsin exclude tribal Indians, or, what is perhaps the same, Indians not taxed.
All States exclude from the suffrage those who have been convicted of certain crimes; that is, those who may have served out their terms of imprisonment, but who have not been restored to their civil rights by the executive department of the State. Treason and felonies like embezzlement and bribery are the crimes most frequently mentioned. One finds here a possible race distinction. The Southern States have greatly added to the list of crimes which operate as an exclusion from the suffrage. By the Constitution of Alabama of 1875, for instance, the following were excluded from suffrage: Those convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery, or any other crime punishable by imprisonment in the penitentiary. The last Constitution of Alabama is more specific; it mentions the following crimes as having the effect of excluding from the suffrage those convicted of them: Treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crimes involving moral turpitude; also any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of making or offering to make false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector. Delaware and several other States, on the other hand, exclude only those who have been convicted of a felony. If, as the Supreme Court of Mississippi said, the Negro is more given to furtive offences than to the robust crimes of the whites, the exclusions of the Alabama law would seem to be directed toward these offences. If more Negroes than whites are guilty of such crimes as larceny and wife-beating, and of sexual irregularities, then the law operates to disqualify for the suffrage more Negroes than whites.
The suffrage qualifications in the insular possessions of the United States are particularly significant in that they tend to show the present attitude of Congress toward the elective franchise. The Act of April 30, 1900, providing a government for the Territory of Hawaii, restricts suffrage to those who can speak, read, and write the English or Hawaiian language—a strict educational test. In the Philippines to be an elector one must be a native of the Philippines, twenty-three years of age or over, and must have paid an annual tax of fifteen dollars, or be the owner of property assessed at two hundred and fifty dollars, or be able to speak, read, and write English or Spanish, or have held substantial office under the Spanish régime. It will be noticed that the tax payment, educational, property, and office-holding tests are alternatives, so the satisfaction of any one of the four is sufficient. Manhood suffrage, as provided by the “Foraker Act”[723] of 1900, is still in force in Porto Rico. But this seems destined soon to give way to a restricted suffrage. Secretary of War Dickinson has recently issued a report on the conditions in Porto Rico in which he suggests an amendment of the suffrage laws to the effect that, after the general election of 1910, the qualified voters for any election shall consist only of citizens of the United States, who, with such other qualifications as are required by the laws of Porto Rico, “are able to read and write; or on the day of registration shall own taxable real estate in their own right and name; or who are on said day bona fide members of a firm or corporation which shall own taxable real estate in the name of such firm or corporation; or on the day of registration shall possess and produce to the Board of Registration tax receipts showing the payment of any kind of taxes for the last six months of the year in which the election is held.” President Taft, in transmitting the report to Congress, indorsed Secretary Dickinson’s suggestions, saying[723]: “It is much better in the interests of the people of the island that the suffrage should be limited by an educational and property qualification.” The above suffrage qualifications for the insular possessions of the United States is evidence that the attitude of Congress toward universal suffrage has been considerably modified within recent years.
The first “Suffrage Amendment” of the Southern States, that of Mississippi, was adopted twenty years ago, and yet no case involving the constitutionality of these laws has been squarely presented to the Supreme Court of the United States. The one most nearly in point was Williams v. Mississippi[724] in 1898. Williams, a Negro, had been indicted by a jury composed wholly of white men. The law required that a juror should be an elector. Williams contended that the provisions of the Constitution about suffrage were a scheme to discriminate against Negroes, that the discrimination was effected, not by the wording of the law, but by the powers vested in the administrative officers. The United States Supreme Court refused to interfere, saying that the laws did not, on their face, discriminate against the races, and that it “had not been shown that their actual administration was evil, only that evil was possible under them.”
Several suits[725] have been brought, the purpose of which has been to test the constitutionality of these laws, but they have all been decided on points of procedure or on technical grounds.
At present, the suffrage laws of the Southern States stand judicially unimpugned in the light of the Fifteenth Amendment. Mr. John Mabry Mathews[726] says that the Supreme Court has shown an “apparent desire to shift the duty of redressing such wrongs [those arising under the suffrage laws] upon the political department of the Government. So far as Congress has given any indication of its attitude upon the subject, it has intimated that the matter is one for judicial settlement. But the absence of congressional legislation would in any case hamper the efficiency of the courts in securing the practical enforcement of the Amendment. The real reason behind the attitude of both Congress and the courts is the apathetic tone of public opinion, which is the final arbiter of the question. In the technical sense, the Amendment is still a part of the supreme law of the land. But as a phenomenon of the social consciousness, a rule of conduct, no matter how authoritatively promulgated by the nation, if not supported by the force of public opinion, is already in process of repeal.”
It cannot be safely conjectured what the Supreme Court will say when it squarely faces the suffrage laws of the South in their relation to the Fifteenth Amendment. Until then, each is entitled to his opinion. That the citizenship, age, sex, and residence qualifications are in perfect conformity to the Amendment there is no doubt. The qualifications of tax payment, property, and education existed long before the Fifteenth Amendment in the States of the men most active in securing the adoption of that Amendment. It is hardly to be supposed that the Senators and Representatives from Massachusetts and Pennsylvania understood the Amendment they were advocating to be nullifying the suffrage laws of their respective States. Moreover, a property or educational test is not an abridgment or denial of the right to vote, because it lies within the power of everyone, regardless of race, to accumulate property and acquire literacy.
The “Grandfather Clauses” are the most doubtful parts of the suffrage laws. In one sense, they are not at all a denial or an abridgment of the right to vote. Granting that the property and educational tests are constitutional, the “Grandfather Clause,” instead of abridging or denying, enlarges the right to vote by giving the suffrage to those who would be disqualified under the property or educational tests. Be that as it may, the Southern States are more uneasy about the constitutionality of these provisions than of any others. For instance, at the last two sessions of the legislature of North Carolina bills were introduced to extend the “Grandfather Clause” of that State to 1812 and 1816 respectively. In each case the bill was defeated, the argument against it being that it was unwise to open up the suffrage question again, lest the amendment be brought into court.[727]
A leading thinker on constitutional law has given the unpublished opinion that the “Grandfather Clauses” are in violation of the tenth section of the first article of the Constitution of the United States, which says that no State shall grant any title of nobility. His idea is that an order of nobility is created whenever a class of persons is granted exceptional political privileges, that the old soldiers and lineal descendants constitute such a class, and that the title of nobility is “Elector,” whether expressed or not.
If the “Grandfather Clause” should be declared unconstitutional on the ground just suggested or on any other ground, the next question would be whether that would nullify the other sections of the suffrage laws, such as the educational and property tests. This depends upon whether the different sections of the laws are separable, whether the legislature or the people would have adopted the educational and property tests, etc., if they had thought the “Grandfather Clause” unenforceable.[728] North Carolina prepared for just such a contingency by inserting the following section in its Suffrage Amendment: “That this amendment to the Constitution is presented and adopted as one indivisible plan for the regulation of the suffrage, with the intent and purpose to so connect the different parts, and to make them so dependent upon each other that the whole shall stand or fall together.”
In the preceding section it has been assumed that the Fifteenth Amendment is an integral part of the Constitution of the United States. Whether or not this assumption is warranted is brought into question by a recent action of the legislature of Maryland.
As has been said earlier in this chapter, Maryland has made two unsuccessful attempts to amend its suffrage laws in such a way as would disfranchise a large number of the present Negro voters in that State. The letter of the Constitution of Maryland at present restricts suffrage to white male citizens; but it has been taken for granted that the word “white” became inoperative under the Fifteenth Amendment.
Out of the discussion of Negro suffrage in Maryland has arisen the question whether or not the Fifteenth Amendment itself is valid. At the last session of the legislature of that State, that of 1910, the so-called Digges Bills were introduced and passed by both houses. The purpose of these bills was to disfranchise all Negroes who have not owned five hundred dollars’ worth of property for two years before their application for registration, upon which all taxes have been paid during those two years. This disfranchisement applied only to State and municipal elections. The bills failed to become laws only because they were vetoed by the Governor of the State.
Upon the failure of the Digges Bills to be passed, a constitutional amendment[729] was drafted and approved by the required three-fifths of all the members of both houses of the legislature, which embodied the same features as the Digges Bills. This amendment is to be voted upon by the people at the general election in November, 1911. This amendment provides for the Australian ballot and for uniform election laws throughout the State. In the event of the amendment being declared unconstitutional, the laws now in force in Maryland are to be revived automatically.
The validity of the proposed Maryland amendment is directly dependent upon the invalidity of the Fifteenth Amendment. Under the proposed amendment, no property qualification whatever is required of white male citizens applying for registration, while a heavy property qualification is required of every other male citizen—and this must include Negroes—applying for registration. Thus, in violation of the Fifteenth Amendment, the right of citizens of the United States to vote would be denied or abridged by the State of Maryland on account of race or color.
The validity of the Fifteenth Amendment is questioned on the following grounds, among others: (1) The fifth article of the Federal Constitution provides that Congress, “whenever two-thirds of both houses shall deem it necessary,” shall propose amendments to the Constitution. It is claimed that only thirty-nine of the sixty-six members of the Senate, less than two-thirds, voted to submit the Fifteenth Amendment to the States for their ratification. (2) Maryland was one of the two States—the other being Delaware—that refused to ratify either the Thirteenth, Fourteenth or Fifteenth Amendment. It is claimed, therefore, that Maryland is not bound by the Fifteenth Amendment, which it did not ratify. (3) The fifth article of the Constitution, after providing the two ways in which the Constitution may be amended, adds that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Upon this last clause, Mr. Arthur W. Machen, Jr., in a recent article in The Harvard Law Review,[730] has founded an ingenious argument that the Fifteenth Amendment is void. His reasoning on this point is, in brief, that the State meant here is the citizens or voters or the government of the State, and not the territory. By the enfranchisement of the Negroes after the War, the composition of the State was changed, a body of persons became part of the State who were not a part of it before, and thus the State was deprived of its equal suffrage in the Senate. Mr. Machen says: “The Fifteenth Amendment amounts to a compulsory annexation to each State that refused to ratify it of a black San Domingo within its borders. It is no less objectionable than the annexation of the San Domingo in the Spanish main.”
Whether or not any or all of the above objections and the others that are urged against the Fifteenth Amendment are valid cannot now be answered, because the validity of the Amendment has been assumed by the courts rather than decided upon after argument. Until after the election of November, 1911, attention will be centered upon Maryland. If the proposed amendment to the State Constitution is ratified by the people, then haste will no doubt be made to have its constitutionality tested, in which case the validity of the Fifteenth Amendment will be directly raised. The Southern States, as a rule, deplore this action on the part of Maryland because they fear that it will open up the whole suffrage question. It is deplored by people over the country as a whole because they fear that it will revive the ill feeling among the sections occasioned by Reconstruction.
It is impossible to say how many persons have been disfranchised under the suffrage laws. No doubt many who are capable of satisfying the qualifications do not register, or, if they register, do not vote. This is probably due to the one-party system in the South. The following figures show either the extent of actual disfranchisement or the political apathy in the Southern States: In one county in Mississippi, with a population of about 8,000 whites and 11,700 Negroes in 1900, there were only twenty-five or thirty qualified Negro voters in 1908, the rest being disqualified, it is said, on the educational test. In another county, with 30,000 Negroes, only about 175 were registered voters. In still another county of Mississippi, with 8,000 whites and 12,000 Negroes, only 400 white men and about 30 Negroes are qualified electors. The clerk of court of a county in North Carolina, with a population of 5,700 whites and 6,700 Negroes, writes that a Negro has never voted in the County. As a general rule, taking the country at large, about one person in five is a male of voting age. In Iowa four out of five possible voters have actually voted in the last four elections; in Georgia, a State of nearly the same population, the proportion is one to six. In Mississippi, in 1906, only one out of eighteen males of voting age actually voted; in Georgia, one out of fifteen. In a district in Mississippi with a population of 190,885, 2,091 votes were cast for the Representative, John Sharp Williams, in 1906; in a district in Connecticut with a population of 247,875, 46,425 votes were cast for Representative Litchfield. These figures show that the ratio of actual voters to total population in the Southern States is astoundingly smaller than in other States.[731]