Well, the 1865 proposal *explicitly* limited the franchise to
whites.  It's possible that the drafters thought "Well, maybe the
whites-only provision will be set aside, so let's throw in a
disenfranchisement of criminals, too."  

	I guess I just don't think it's that likely.  It seems more
likely that South Carolina was echoing the view of Virginia, Kentucky,
Tennessee, Alabama, Mississippi, Florida, and probably North Carolina,
which had (or, as to North Carolina) likely had felon disqualification
authorizations or mandates in their constitutions, for reasons quite
unrelated to disenfranchisement of blacks (since those other provisions
were all pre-Civil-War).  Of course, I'm just naming some of the nearby
states, the traditions of which were likely especially influential in
South Carolina.  If we're looking for the predominant motivation, the
"we don't trust felons" motivation seems more plausible than the "we
want to disenfranchise blacks, though we've already disenfranchised them
explicitly earlier in this very provision."

	Incidentally, I'm afraid I have to correct my earlier
correction:  The 1865 South Carolina Constitution had indeed been
enacted, as best I can tell.  I was confused by the note that said the
constitution hadn't been submitted to the people for ratification; but a
quick literature search suggests that it had indeed become law, though
it endured only until 1868 (I suspect because it didn't satisfy the
Reconstruction Congress).

	Eugene

Delaware, Kentucky, 

Louisiana, Maryland, and Virginia (focusing only on the 

slave states) 

-- were enacted before the Civil War

	As to quite a few of the laws that were enacted right
after the Civil War, the article has a footnote stating that "The 
first state constitution gave the state legislature the power to 
restrict suffrage for criminal activity"; Alabama, Florida, 

Missouri, 

and Texas fall into this category.  The article seems to 

erroneously 

omit such a footnote as to Mississippi (see Miss. Const. 1817, art. 
VI, sec. 5).  It also doesn't note that Tennessee had a similar 
provision in its 1834 Constitution, though not in its original
constitution.  It also doesn't note (this is an
understandable omission, but I think the circumstance I
mention is still worth noting) that the South Carolina
Constitution of 1865, which *explicitly* disqualified blacks
as voters also gave the legislature the power to "impose
disqualification to vote as a punishment for crime," which
suggests that the drafters of that particular constitution
saw disqualification of felons as valuable itself,
independently of its effect on blacks voters.

Neil Bradley writes:

Eugene Volokh writes:

"One small correction -- I neglected to note that the South 
Carolina 1865 Constitution was only a *proposed* 
constitution; that's why I said that an omission of a 
footnote related to it is understandable, but I neglected to 
include the word "proposed."  Still, it suggests that in 1865 
quite a few people in South Carolina supported felon 
disenfranchisement for reasons unrelated to race (since 
blacks were excluded from the vote even without this provision)."


Passing over that "quite a few people" who proposed a 
constituiton in South Carolina in 1865 likely means a 
majority of South Carolina's Confederate legislature or a 
convention, that is not a basis for concluding that the 
inclusion of felon disenfranchisement was unrelated to race.  
The premise that a state would not enact multiple and 
redundant disfranchising devices with racial motivation is 
contrary to the legislative record in every Southern state in 
which we have done research on the history of racial 
discrimination in voting.  Beyond our research the literature 
is legion. Key, Southern Politics in State and Nation, 
Woodward, Origins of the New South, Kousser, The Shaping of 
Southern Politics, Shofer Nor is it Over Yet. Redundancy was 
the norm.  Why else have a grandfather clause, poll taxes, 
literacy tests, good character tests, the 8 box laws, white 
primary statutes, eclectic lists of disenfranchising crimes 
which courts have found to be racially motivated, 
re-registration laws, purging for non-voting in one election 
cycle, etc.  If Kodak had been around a little earlier, photo 
ids would have been added. I suspect that every historian who 
concentrates on Southern history agrees that rebellious 
states feared that the federal government would invalidate 
one or more devices in the process of controlling 
Readmission, and later in the implementation of the 14th 
Amendment and, however fleetingly, the Force Acts.  Hence no 
device was deemed just not necessary. (Somewhat amazingly, 
South Carolina was not the only rebellious state to adopt or 
seek to adopt a post-war constitution that expressly barred 
African Americans from voting.)  The Redeemers were correct, 
of course.  It took the federal government 50 years to 
invalidate the grandfather clauses, another 20-30 to get the 
white primaries, and another 20 to get poll taxes, literacy 
tests.  Redeemers found at least one that stuck--felony 
disenfranchisement.

Neil Bradley
ACLU



-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of 
Volokh, Eugene
Sent: Thursday, February 10, 2005 7:39 PM
To: election-law@majordomo.lls.edu
Subject: RE: Question about the history of felon 
disenfranchisement laws


	One small correction -- I neglected to note that the 
South Carolina 1865 Constitution was only a *proposed* 
constitution; that's why I said that an omission of a 
footnote related to it is understandable, but I neglected to 
include the word "proposed."  Still, it suggests that in 1865 
quite a few people in South Carolina supported felon 
disenfranchisement for reasons unrelated to race (since 
blacks were excluded from the vote even without this provision).

	I'd love to hear more on the questions I note below, if 
anyone has any information about the subject.  Many thanks,

	Eugene

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf 

Of Volokh, 

Eugene
Sent: Thursday, February 10, 2005 11:37 AM
To: election-law@majordomo.lls.edu
Subject: Question about the history of felon disenfranchisement laws


	Our library got me a copy of Behrens, Uggen & Manza,
"Ballot Manipulation and the 'Menace of Negro Domination': Racial 
Threat and Felon Disenfranchisement in the United States, 

1850-2002," 

and this led me to a question that I thought some on this 

list might 

answer.

	The paper lists the years of first felon
disenfranchisement laws.  Many -- for instance, in 

Delaware, Kentucky, 

Louisiana, Maryland, and Virginia (focusing only on the 

slave states) 

-- were enacted before the Civil War

	As to quite a few of the laws that were enacted right
after the Civil War, the article has a footnote stating that "The 
first state constitution gave the state legislature the power to 
restrict suffrage for criminal activity"; Alabama, Florida, 

Missouri, 

and Texas fall into this category.  The article seems to 

erroneously 

omit such a footnote as to Mississippi (see Miss. Const. 1817, art. 
VI, sec. 5).  It also doesn't note that Tennessee had a similar 
provision in its 1834 Constitution, though not in its original
constitution.  It also doesn't note (this is an
understandable omission, but I think the circumstance I
mention is still worth noting) that the South Carolina
Constitution of 1865, which *explicitly* disqualified blacks
as voters also gave the legislature the power to "impose
disqualification to vote as a punishment for crime," which
suggests that the drafters of that particular constitution
saw disqualification of felons as valuable itself,
independently of its effect on blacks voters.

	Now here is what puzzles me:  The earlier Alabama,
Florida, Mississippi, and Texas constitutions not only gave the 
legislature such power, but actually seemed to *order* the 

legislature 

to do this:  "Laws shall be made by the general assembly to exclude 
from office, and from suffrage, those who shall have been, or may 
thereafter be, convicted of bribery, perjury, forgery, or 

other high 

crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see also 
Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, 

art. VI, sec. 

5; Texas Const. 1845, art. VII, sec. 4.)  Only two, the Missouri
Constitution of 1820 (art. III, sec. 14), and the Tennessee
Constitution of 1834 (art. IV, sec. 2) spoke of legislative
discretion ("The general assembly shall have power to exclude
. . . from the right of suffrage, all persons convicted of
bribery, perjury, or other infamous crime," to quote the
Missouri provision).

	So the question:  Did the Alabama, Florida,
Mississippi, and Texas legislatures indeed fail to comply with the 
constitutional command until after the Civil War, and did 

the Missouri 

and Tennessee legislatures fail to exercise their powers?

	And a supplementary question:  The 1835 amendments to
the North Carolina Constitution, sec. 4, part Four, say that the 
legislature "shall not have power to pass any private law . . . to 
restore to the rights of citizenship, any person convicted of an 
infamous crime; but shall have power to pass general laws 

regulating 

the same."  This suggests that felons might have lost the vote by 
having more generally lost the rights of citizenship, even 

before the 

Civil War (the Behrens et al. article lists the first felon 
disenfranchisement law as 1876, but I wonder whether this might 
therefore be mistaken).  State v. Surles, 230 N.C. 272 

(1949), notes 

that in 1854 the North Carolina legislature in fact passed a law
providing for a procedure for restoring the rights of
citizenship, but doesn't specifically discuss the right to
vote.  Any thoughts on whether North Carolina may in fact
have disqualified felons from voting before the Civil War?

	I realize, of course, that we may want to also
investigate the situation in nonslave states; I just 

decided to start 

with the slave states, rather than doing the work for all 50.

	Thanks,

	Eugene