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