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PART TWO. VOTING

CHAPTER 1. THE AMERICAN RIGHT TO VOTE: A HISTORY

The right to vote is the cornerstone of the Republic, and the key to all other civil rights. Upon this American fundamental, in the course of enacting the Civil Rights Act of 1957, there was agreement between Democrat and Republican, North and South, executive and legislative branches. Said Attorney General Herbert Brownell, Jr.:

The right to vote is really the cornerstone of our representative form of government. I would say that it is the one right, perhaps more than any other, upon which all other constitutional rights depend for their effective protection, and accordingly it must be zealously safeguarded.' Said Senate Majority Leader Lyndon Johnson, Democrat, of Texas: I voted for the Civil Rights Bill because I believe that the right to vote is the most important instrument for securing justice. I was convinced that steps were needed to safeguard that right.” Said Senator Leverett Saltonstall, Republican, of Massachusetts: No one can deny that the right to vote is a fundamental, inalienable right of all people in a democracy. Every other constitutional right depends upon it. Without this, we have only an illusion of true democracy; history has shown us that when this basic right is abrogated, democracy and freedom fail.* Said Senator Paul Douglas, Democrat, of Illinois:

. . If we can help to restore and maintain this right to vote, many of the other present discriminations practiced against Negroes, Indians, and Mexican-Americans will be self-correcting. 4 The winning of the American Revolution, it is often supposed, made Americans free and self-governing overnight. But of the estimated 3,250,000 people (not including Indians) in the country at war's end, more than a million were still not free. According to one authority they included 600,000 Negro slaves, 300,000 indentured servants, some 50,000 convicts dumped by the mother country, and assorted debtors and vagrants sold into involuntary labor. And of the 2,000,000-odd Americans who were free, perhaps no more than 120,000 could meet the voting qualifications of their States.s United States Senate, Hearings before the Committee on Constitutional Rights of the Committee on the Judiciary, 85th Congress, 1st Session, 1957, p. 2. *Civil Rights Speech on the Senate Floor, January 20, 1959. (105 Cong. Rec. 808.) Op. cit. supra note 1, at 778. Id. at 103. Willam Miller, A New History of the United States, 1958, pp. 109-112.

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At the time the Constitution became effective, the prevailing views upon the subject of suffrage were these: (1) the sovereign power was in the hands of the electorate, to be exercised through their representatives; (2) the electorate did not include all of the people; (3) the determination of which people should be included in the electorate was to be made by each of the several states for itself, and for the national government; (4) direct participation of the electorate in the selection of the personnel of the national government was limited to the lower house of Congress; (5) the actual conduct of elections of the members of the national legislative body was left to the several states, but a latent and limited power paramount to supersede such methods was reluctantly conferred upon the Congress; and (6) explicit methods— affording prominence to the several States were detailed for the selection of the President. Because the organization of the National Government did not supplant determinative State power over matters pertaining to suffrage, it is essential to study the schemes of selection of the electorate reflected by State laws and constitutions in order to understand the development of suffrage in the United States.

A characteristic of the essentially empirical American system is that there is no single theory of suffrage. If the electoral franchise is regarded as a privilege, considerations of the status of the individual in the political community, "the good of the state," and political expediency assume dominant proportions in selection of the criteria for voter qualification. If it is regarded as a right, whether by natural law or as an attribute of citizenship, ethical considerations founded upon the equal moral worth of all men in a free society raise suffrage to the plane of an essential means for the development of individual character.

First of all, Colonial America was a “man's world,” though women were permitted to vote in Massachusetts from 1691 to 1780 and in New Jersey from 1776 to 1807. After the ratification of the Constitution and for nearly one hundred years there are only isolated instances of female voting. Women voted in local elections in Kentucky as early as 1838 and in Kansas in school elections as early as 1861. Wyoming as a territory in 1869 granted suffrage equality to women.?

The Colorado Constitution of 1876 made provision for women to vote in school elections and authorized the legislature to submit the question of full and complete woman suffrage to a referendum. A few states had followed suit before the turn of the twentieth cen

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• W. J. Shepard in the Encyclopedia of the Social Sciences, 1937, Vol. XIV, pp. 447-450, enumerates and discusses five theories, each of which, at some time and place, could be cited as the rationale of suffrage then obtaining in some one or more of the American states. See also K. H. Porter, A History of Suffrage in the United States, 1918, pp. 4-6, 14.

? See C. A. M. Ewing, American National Government, 1958, p. 139.

8 Constitution of Colorado-1876, Article VII, Sections 1 and 2, F. N. Thorpe, American Charters, Constitutions, and Organic Law8—1492-1908, 1909, Vol. I, p. 492.

tury, but it was not until 1920 that women were granted full suffrage throughout the United States by the Nineteenth Amendment.

As a "man's world,” Colonial America also, limited suffrage to males of an adult age. The lowering of the uniform minimum-age requirement of 21 years in some States has been a most recent innovation.

Under the early residence requirements, the adult males had to live within the geopolitical unit. The period of residence in the Colonies varied from two years in Pennsylvania and Delaware to six months in Georgia. Nonresidents could vote in elections in other areas of colonial New York and New Hampshire, if qualified by property ownership.10

Third, the colonial adult male resident had to have a certain status of freedom. The meaning of the term “freemen” varied among the colonies. In the four New England colonies of Massachusetts, Plymouth, Rhode Island, and Connecticut the term had special significance: a man had to have certain perscribed qualifications, secure approval of the appropriate body, be admitted and sworn in order to become a freeman. In the southern colonies the same term may have meant no more than freemen, in the literal sense, i.e., all those not slaves or indentured servants.11 The term has overtones of the requirement of residence, into which it may have been assimilated in part; as to status, it seems to have become merged into property requirements.

Qualification of the colonial elector frequently was dependent upon satisfaction of religious standards, both positive and negative.12 At one time in both Massachusetts and New Haven colony, freemen were required to be church members. Later this requirement was abandoned. Negative religious standards may have been more general. Apparently, Roman Catholics could not vote in most of the American colonies. Specific provisions excluding them existed in Rhode Island, New York, Maryland, Virginia; New Hampshire initially required freemen to be Protestants, but repealed this law immediately after enactment, though the positive standards of church membership undoubtedly had the same operative effect. There is evidence indicating that Jews could not legally vote, at least in New York and South Carolina. Quakers could not become freemen in Massachusetts and Plymouth, and their religious scruples against taking oaths often barred them from voting in other colonies.

A qualification upon colonial suffrage, closely related to religion, was that of morality. This qualification was peculiar to New England, although Virginia denied the electoral franchise to any "convict

• Eighteen years of age in Georgia (1945) and Kentucky (1957), 19 in Alaska (1958). ** C. F. Bishop, History of Elections in the American Colonies, 1893, pp. 66–69. uid. at 46–50, 92–97. For a detailed description of these qualifications see Ibid., pp. 56–64.

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or person convicted in Great Britain or Ireland during the term for which he is transported,” even though otherwise qualified.13 Similar provisions disfranchising persons for the conviction of certain types of felonies exist in some states today.

A few qualifications required at various times in some of the colonies do not fall conveniently within any of the preceding groups.16 Foremost among these was a requirement of citizenship. Among the lesser qualifications were these: oaths of allegiance generally were required for acquisition of status where only those admitted as freemen held the suffrage: payment of certain taxes was sometimes made a condition precedent to exercise of the electoral franchise; and debtors and servants, as well as persons under guardianship, were sometimes excluded from the suffrage.

Emphatically most important among the restrictive qualifications upon colonial suffrage was the ownership of some form of property. This requirement was universally regarded, throughout all of the colonies, as an essential determinant of suffrage.? Property ownership was the sine qua non for the suffrage at the time of the Revolution. Shortly before the Revolutionary War property qualifications for voting existed in all the Colonies based either on the number of acres owned, or the value of the property, or the annual income from the property. Although there were alterations in amounts, this type of requirement continued after the Revolution 18

The foundation of all of these property-ownership qualifications was an old English principle that a man's right to vote derived from his possession of a material interest in the community.

These were the rules for the exercise of the suffrage, with which the draftsmen of the Constitution were familiar. There was little of uniformity in suffrage provisions among the several States, generally. Hence, there was a real and practical reason for leaving determination of qualifications of the suffrage to the States—completely apart from fear of a strong central government and the familiar arguments concerning States' rights.

An understanding of what has happened to the suffrage in America since the organization of the United States may be secured by a study of the provisions upon the subject in the various state constitutions adopted since that time. Voting qualifications have traditionally

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13 Bishop, op. cit. supra note 6, at 53-56.

16 For specific examples of the qualifications mentioned in this paragraph see Bishop, op. cit. supra note 10, at 90–92.

17 Bishop, op. cit. supra note 10, at 69-90, especially at 70 ; Porter, op. cit. supra note 6 at 3-5, 7-14. Both authorities agree that it was universal, the one common denominator in all colonies. Both note the South Carolina payment-of-taxes alternative (Bishop, op. cit. supra note 10, at 78; Porter, op. cit. supra note 6, at 9), but neither explains the manner of liability for payment of taxes upon a non-property-ownership ground.

18 Porter, op. cit. supra note 6, at 11, 20.

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