The Right to Vote

by Alexander Keyssar

  Such language was echoed in one state after another, in petitions from white and black citizens, and by convention delegates themselves; the argument was buttressed by the claim that granting blacks the vote would help to elevate their condition, while disfranchisement would attach a “stigma” that would throw “an obstacle in the way of their improvement.” Attorney Charles Chauncy maintained in Pennsylvania in 1838 that it was “our duty to do everything that lies in our power, to elevate and to improve the condition of the colored race . . . instead of cutting them off.” Other advocates pointed out that the very term white was ambiguous in its meaning: “Does it mean only Anglo-Saxons?” queried an Ohio delegate. “Does it embrace all Caucasians? This interpretation would include many who are darker than some it would exclude.” Still others played the military card, quoting General Andrew Jackson’s praise of black soldiers who took up arms during the War of 1812, and insisting that those who fought for their country, and might fight again, should not be denied the franchise.9

  Such arguments, compelling as they may sound to twentieth-century ears, carried little weight, either in constitutional conventions or among the population at large. Black suffrage was an emotionally charged issue that could not be reached through rational argument or fine distinctions. In few conventions were votes on the issue even close; at the Indiana convention of 1850, one delegate even offered the barbed jest of an amendment “that all persons voting for negro suffrage shall themselves be disfranchised.” Political leaders frequently voiced the fear that any constitution including black suffrage could not be ratified by the electorate, and they were probably right. With the exception of Rhode Island, all of the popular referenda held on the issue resulted in overwhelming mandates for an exclusively white suffrage. Much of the populace believed that blacks were inferior, and outside of the slave states, feared their presence. Permitting African Americans to vote seemed all too likely to open the doors to migration and “amalgamation,” and thus to diminish the significance of whiteness and citizenship.10

  The political rights of the nation’s other racial minority, Native Americans, were a less inflammatory issue. To be sure, fears were expressed in Texas that “hordes” of Mexican Indians “will come moving in . . . and vanquish you at the ballot box though you are invincible in arms.” At California’s founding convention, one delegate voiced the conviction—surely widely shared—that it was “absolutely necessary” to include a constitutional provision that “will prevent the wild tribes from voting.” In addition, many constitutional conventions held brief debates about whether Indians were or were not “white.” The Michigan convention, for example, came to the remarkable conclusion that Indians ought to be considered white because the word white simply meant “not black”: “the word white was used in contradiction to the black alone, and though the Indian was copper-colored, he was not to be classed among the latter.” The prevailing view in much of the nation, however, was that Native Americans, whether officially white or not, ought not be excluded from the franchise on racial grounds: as long as they were “civilized” and taxpaying, they should be entitled to vote. As was true of many policies toward Native Americans in the nineteenth century, Indians were regarded as possessing the raw (but uncivilized) potential for full (white) personhood.11 (See Table A.4.)

  Nonetheless, the ability of Native Americans to participate in politics was narrowed between 1790 and the 1850s. In some states, they were barred because they were finally judged not to be legally white, and only whites were eligible to vote. More distinctively, Native Americans were kept from the polls through a series of court decisions and legal declarations that circumscribed their ability to become citizens. The citizenship status of Native Americans was ambiguous in early American law (the constitution specified that Indians “not taxed” were not to be counted in the census for the purposes of legislative apportionment), but beginning with Chief Justice Marshall’s landmark decisions of the 1830s, their legal status began to be clarified—in a negative direction. Indian tribes were “domestic, dependent nations,” according to Marshall, and thus individual Indians, living with their tribes, were aliens, even if born in the United States. Twenty years later, the Dred Scott decision affirmed this interpretation, while suggesting a path toward citizenship: Indians (unlike blacks) could, if they left their tribes and settled among whites, “be entitled to all the rights and privileges which would belong to an immigrant from any other foreign people.” At roughly the same time, however, the attorney general ruled that Indians could not become citizens through the conventional process of naturalization because the naturalization laws applied only to whites and to foreigners—and Indians were not actually foreigners, because “they are in our allegiance.” The upshot of this juridical Catch-22 was that Indians could become citizens only by treaty or by special acts of Congress, even if they did settle among whites and pay taxes.12

  Congress did in fact attempt to naturalize some tribes in their entirety, usually in return for a tribal agreement to accept a limited allotment of land, but congressional actions affected only a small number of Native Americans. Meanwhile, several states formally moved to disfranchise all Indians, or Indians “not taxed,” or members of specific tribes, while others expressly limited suffrage to citizens or to “civilized” Indians who were “not a member of any tribe.” (Georgia even gave full citizenship rights to individually named Cherokee Indians who surrendered any legal claims to their lands.) Although these latter provisions were commonly construed as extensions of the franchise, their applicability was limited. On the whole, Native Americans were understood to be potential voters, but few in fact ever were able to vote during the antebellum era.13

  Paupers, Felons, and Migrants

  In addition to restrictions focused on people’s identities, laws also were passed that targeted their behavior. In drawing—and redrawing—the boundaries of the polity, each state contended not only with issues of race and gender but also with adult, white men who occupied the social margins of the community. Despite the abolition of property requirements, most Americans did not believe that all adult white males were entitled to full membership in the political community.

  One restriction preserved a link between economic status and enfranchisement: paupers were denied the right to vote in twelve states between 1792 and the late nineteenth century. (See Table A.6.) Although the precise definition of pauper was debated in constitutional conventions and in the courts, these laws clearly were aimed at men who received public relief from their communities or from the state: those who lived in almshouses or were given “outdoor relief” (generally in the form of food, fuel, or small amounts of cash) while residing at home. These pauper exclusions were not archaic carryovers of colonial precedents; they were generally new constitutional provisions, often adopted at the same conventions that abolished property or taxpaying requirements.14

  The exclusion of paupers constituted a direct rejection of claims that suffrage was a right that ought to be universal among white males: it drew a new border around the polity, making clear that individuals had to maintain a minimal level of economic self-sufficiency in order to possess political rights. The rationale for these measures was Blackstonian: a man who accepted public support surrendered his independence and therefore lost the capacity to function as a citizen. Paupers, according to one Delaware delegate, were not “freemen in the whole extent.” “The theory of our constitution,” declared Josiah Quincy, “is that extreme poverty—that is pauperism—is inconsistent with independence.” “When a man is so bowed down with misfortune, as to become an inmate of a poor house . . . he voluntarily surrenders his rights,” claimed a member of the New Jersey committee that drafted its law in 1844. Advocates of these laws frequently invoked a vivid, if implausible, image of the trustees or masters of poorhouses marching paupers to the polls and instructing them how to vote.15

  The prospect of disfranchising a community’s poorest residents caused some discomfort, and even outrage, am
ong citizens of both parties. In the New Jersey convention of 1844, Democratic delegate David Naar, a judge and Sephardic Jew whose family had recently emigrated from the West Indies, fiercely opposed the notion that “paupers have made a voluntary surrender of their liberties.” “Does any one of his own will and choice become a pauper? No one, sir, except from the necessity of the case!” He also pointed out that “the working men . . . are sometimes bowed down by misfortune, and shall they be deprived of the right of voting? Which of us can say that some day or other he may not become a pauper?” A former overseer of the poor supported Naar, saying that “he had seen citizens of the first families in our State borne to the poor house from misfortune: and now shall we set a mark upon them and rank them with criminals?” In several states, such as Wisconsin, the idea of disfranchising the unfortunate was too distasteful, leading to the rejection of proposals for pauper exclusions; elsewhere, and with the support of some Federalists, Republicans, Democrats, and Whigs, paupers were defined out of the polity.16

  As legal historian Robert Steinfeld has perceptively pointed out, the pauper exclusion laws expressed a shift in the prevailing concept of independence, a shift precipitated by the abolition of property requirements. Independence had come to be perceived less in economic than in legal terms: paupers were legally dependent on those who ran poorhouses and administered relief, and often were required to perform labor in return for aid. While they were paupers (the laws were generally interpreted by courts to apply only to men receiving aid at the time of elections), they lacked “self-ownership,” which limited their capacity to act or vote independently. Implicitly, the pauper exclusion laws were drawing a distinction between wage earners, whom many viewed as sufficiently independent to be enfranchised, and men who had surrendered legal control of their own time and labor. Yet, as Naar suggested, there was also a class edge to these laws—since they constituted a warning to the working poor that misfortune, or failure to be sufficiently industrious, would deprive them of their political rights. That warning, as Naar surely was aware, was all the more resonant—and seemed all the more unfair—after the jarringly sharp economic downturn of 1837.17

  The right to vote also was withheld from another group of men who violated prevailing social norms, those who had committed crimes, particularly felonies or so-called infamous crimes. (These were crimes that made a person ineligible to serve as a witness in a legal proceeding.) Disfranchisement for such crimes had a long history in English, European, and even Roman law, and it was hardly surprising that the principle of attaching civil disabilities to the commission of crimes appeared in American law as well. The rationale for such sanctions was ostensibly straightforward: disfranchisement, whether permanent or for an extended period, served as retribution for committing a crime and as a deterrent to future criminal behavior. Men who had committed crimes were also deemed to be unfit to govern themselves (and therefore others) and unworthy to enjoy the privilege of voting.18

  States began to incorporate criminal disfranchisement provisions into their constitutions during the early years of the republic. Between 1776 and 1821, eleven state constitutions either expressly prohibited men with criminal convictions from voting or (more commonly) empowered their legislatures to enact laws disfranchising men convicted of infamous crimes or of specified crimes, such as perjury, bribery, and betting on elections. (See Table A.7.) By the eve of the Civil War, more than two dozen states excluded those who had committed serious crimes, with many of the disfranchising provisions enacted in the wake of the abolition of property and tax-paying requirements. In almost all cases, the disfranchisement implicitly was permanent, although the New York Constitution of 1846 stipulated that men who were pardoned for their crimes would be reinstated in the voting rolls, a principle likely applied elsewhere as well. Although such constitutional and legislative acts rarely occasioned much debate, it is notable that these provisions were neither universal nor uniform. (It is equally notable that these same years witnessed the passage of laws expressly excluding another group of “unfit” citizens, the mentally ill. See Table A.9 and Chapter 9.)19

  In several states, the franchise also was restricted by lengthening state or local residency requirements. (As noted in the previous chapter, the reverse was true in some locales.) The need for residency rules was widely agreed upon: particularly in the absence of property or taxpaying qualifications, it seemed sensible to restrict the franchise to those who were familiar with local conditions and likely to have a stake in the outcome of elections. How long the necessary period of residence ought to be was less obvious. The average requirement tended to be one year in the state and three or six months in an individual township or county, but there were strenuous advocates of both longer and shorter periods.20

  Those who favored lengthy residency requirements were generally seeking to prevent “vagrants and strangers,” “sojourners,” or transients of any type from voting. “There is little propriety,” observed James Fenimore Cooper, “in admitting the floating part of the population to a participation” in government. Most of these floating men were manual workers, deemed to be ignorant of local conditions and a source of electoral fraud. In 1820, “hundreds of men . . . from New Hampshire” were reported to be flocking into Massachusetts each spring to vote in elections; in Wisconsin, convention delegates advocated a lengthy period of residence to exclude a “numerous class” of migrant miners from Illinois; in Ohio, the “transient, homeless hands of canal boats” were said to be determining the outcome of elections in towns that bordered the canals. Elsewhere in the Midwest, apprehensions focused on railroad workers (whose votes allegedly could be controlled by railroad corporations) and on farmhands who could be shipped from county to county for political purposes. These concerns became more acute as economic development heightened the visibility of migrants. Nonetheless, anxiety about the transient population generally was overridden by those who believed that lengthy residency requirements would unjustly disfranchise “wandering mechanics,” men whom “poverty obliged to remove from one township to another,” or even farmers who commonly leased their land for a year or eighteen months and then moved on. Some Midwesterners also argued that shorter periods of residence would encourage much-needed settlement.21

  Not surprisingly, there was a partisan dimension to these debates. Federalists and then Whigs tended to favor longer periods of residence, because they were wary of the unsettled and the poor and suspected that most transients would vote for the Republicans or Democrats. The Democrats shared this analysis, advocating shorter residency requirements in the hope of enfranchising more of their own supporters. This partisan split became more pronounced in the 1840s as the issue was infused with conflicting and sometimes antagonistic popular attitudes toward the mobile foreign-born.22

  Most of these debates resulted in a standoff, but some states did end up lengthening their residency requirements. New York, in 1821, did so for those who could not meet the taxpaying requirements for legislative voting. Maryland adopted a six months’ local requirement in 1850, aimed almost entirely at the immigrant population of Baltimore; Virginia, that same year, increased the state residency requirement from one year to two. In addition, Florida adopted an unusually long residency requirement of two years in 1838. In 1845, a coalition of Whigs and Democrats from the southern parishes of Louisiana, fearing the potential power of immigrants flooding into New Orleans, succeeded in doubling the state residency requirement from one year to two, while demanding a full year’s residence in the parish. Residency also would be voided by an absence of ninety days or longer. Meanwhile, in Ohio, a complex, even bewildering, series of laws was passed, as Whigs and Democrats fought over residence rules for more than two decades. The upshot was the maintenance of a one-year state requirement and a shorter local-residence requirement, coupled with the appointment of election judges who had the power to reject any voter’s claim to be a legal resident. This was followed by the passage of a Whig-sponsored law that instituted a new sys
tem of voter registration applicable only to selected communities and towns and to “canal counties” where rates of transience were high.23

  Registration and Immigration

  Ohio was not the only state where concern about transients—and particularly foreign-born transients—sparked interest in the creation of formal systems of voter registration. Massachusetts had adopted a registration system in 1801, South Carolina instituted a limited registration requirement for the city of Columbia in 1819, and New York considered the possibility in 1821 (and did require that voters present “proper proofs” of their eligibility). Most states, however, did not keep official lists of voters or require voters to register in advance of elections.24

  Beginning in the 1830s, the idea of registration became more popular, particularly among Whigs, who believed that ineligible transients and foreigners were casting their votes for the Democratic Party. At the same time, a landmark Massachusetts court case, Capen v. Foster, ruled that registry laws were not unconstitutional impositions of new voting qualifications but reasonable measures to regulate the conduct of elections. In 1836, Pennsylvania passed its first registration law, which required the assessors in Philadelphia (and only Philadelphia) to prepare lists of qualified voters: no person not on the list was permitted to vote. Although the proclaimed goal of the law was to reduce fraud, opponents insisted that its real intent was to reduce the participation of the poor—who were frequently not home when assessors came by and who did not have “big brass” nameplates on their doors. At the constitutional convention of 1837, Democratic delegates from Philadelphia responded by introducing a constitutional amendment mandating a uniform, statewide registry system; the proposal was resoundingly defeated by rural delegates.25