We think the residence . . . contemplated [by the constitution] is synonymous with “home” or “domicile,” and means an actual settlement within the state, and its adoption as a fixed and permanent habitation; and requires not only a personal presence for the requisite time, but a concurrence therewith of an intention to make the place of inhabitancy the true home.
Although the rules developed by state courts differed from one another, on one major issue there was uniformity: no jurisdiction questioned the legitimacy of statutes or constitutional amendments establishing residence qualifications—even lengthy residence qualifications—for voting. In 1904, moreover, the U.S. Supreme Court, in Pope v. Williams, affirmed the constitutionality of residency qualifications and state efforts to enforce them. Ruling on a Maryland law that required persons moving into the state to make a declaration of intention to become state residents one year before they could cast their ballots, the Court ruled that the “statute does not violate any Federal right of the plaintiff.” The Maryland law “is neither an unlawful discrimination . . . nor does it deny to him the equal protection of the laws, nor is it repugnant to any fundamental or inalienable rights of citizens.”54
While the courts debated the definition of residence, it was left to constitutional conventions, and sometimes legislatures, to determine the appropriate length of residency requirements. In much of the nation, there was a broad consensus that a year’s residence in the state was necessary and sufficient for a man to responsibly exercise the franchise, although in many midwestern states the consensus period was six months. More controversial were local, county, and district requirements. Those who favored relatively long periods of residence (usually three to six months) commonly argued that voters needed time to “become very largely interested in the local politics of a county or precinct” and to become “identified with the interests of the community.” Almost always, such arguments contained ingredients of class apprehension. “The citizens of any precinct have the right of protection against a floating population,” noted an Illinois delegate in 1870. “Our state,” observed one of his colleagues, “is now a great railroad state. There are a great number of operatives in the service of these various railroads, who might be transferred to a particular locality . . . and the permanent residents would have their interests voted down by these casual and temporary residents.” In some instances, the class fears were directed upward: “great interests” or “designing politicians” could take advantage of short residency periods to “colonize” men into a particular district in order to win an election.55
Opponents of long residency requirements responded in kind: a member of Pennsylvania’s constitutional convention in 1872-1873 objected that a proposed precinct residence rule would disfranchise thousands of workingmen who were compelled to move from place to place so that they could live near their places of employment: “You absolutely deprive them of the right to vote, just because they are so poor and so unfortunate that they are forced to change their places of dwelling within two months of election day.” “Laboring men and mechanics, as a general thing,” insisted a California politician, “cannot live in one place as long as ninety days.” In New York in the 1870s, residents of some rural counties, as well as the New York State Teachers Association, also petitioned for shorter county residence requirements.56
In the end, as Table A.14 reveals, residency rules did not change much outside of the South. California and Colorado increased their required periods of residency, many states tinkered with precinct and county requirements, and Minnesota in 1893 passed an extraordinary law preventing migrant lumbermen and construction workers from gaining residence. As a rule, however, the issue generated only muted partisan warfare, and the prevailing patterns in 1920 were very similar to those in place in 1870. Notably, no state in the North or West, except Rhode Island briefly, adopted the punitive, two-year requirements that were becoming common in the South.
These years also witnessed the codification of residency rules for three increasingly large groups of men whose situations were anomalous: residents of almshouses and other custodial institutions, soldiers and sailors, and students. As noted earlier, many states enacted laws that prevented inhabitants of public (and even private) custodial institutions from becoming legal residents of the communities where those institutions were located. The same rule was applied to military personnel, although most states (to avoid the appearance of disfranchising soldiers) also specified that soldiers and sailors who were away from home did not lose their residence in their original communities. (See Table A.14.)
The most difficult case proved to be students at colleges, seminaries, and other institutions of higher learning. In many states, there was substantial sentiment in favor of prohibiting students from gaining residence in the communities where they attended college: claiming that students were not truly members of the community, political leaders cited anecdotes of students being paraded to the polls to vote en masse, of unscrupulous politicians enlisting students to cast their ballots, and of students (who did not pay taxes) voting to impose tax increases on permanent residents. There was, however, a notable degree of resistance to such laws, grounded perhaps in a reluctance to keep respectable, middle-class, native-born men from voting. “I cannot see the propriety of . . . discriminating against intelligent young men attending college,” insisted a Pennsylvanian in 1873. Many states did end up specifying that students could not gain legal residence by attending educational institutions, although the courts—and occasionally the legislatures as well—made exceptions for those who did not have other domiciles and could establish their intention to remain in the community where they were studying.57
The notion that legal residence was tied as much to intention as physical presence inexorably led states to consider mechanisms for absentee voting—for men and women who were temporarily away from home but intended to return. Although there were venerable precedents for men casting their ballots without being physically present at polling places (in seventeenth-century Massachusetts, for example, men whose homes were vulnerable to Indian attack were permitted to vote without leaving their abodes), absentee voting was rare before 1860: only Oregon, in 1857, made it possible for men who were temporarily away from home to vote. Yet, as noted in Chapter 4, the Civil War—and the desire to permit soldiers to vote during the war—severed the link between voting and physical presence in a community. After the war, more and more states made it possible for absent soldiers to vote, particularly if they were stationed within their home state. The laws sometimes specified that they could vote anywhere in the state for statewide offices and anywhere in the district in congressional elections; casting ballots by mail was not the norm. World War I added a new urgency to the issue, since nearly three million men were inducted into the army. Accordingly, by 1918, nearly all states had made provisions for men serving in the military to cast their ballots, at least in time of war.58
Soldiers opened the gates to a broader dispensation. The logic of allowing nonresident military personnel to vote seemed to apply almost equally well to others whose jobs forced them to be away from home on election day. The city of Somerville’s delegate to the Massachusetts Constitutional Convention of 1917-1918 made the point at some length: There is a very clear-cut analogy . . . between the votes of the soldiers and sailors on the one hand and such citizens as trainmen and traveling salesmen on the other . . . we are saying here . . . that the absent soldiers and sailors should not be deprived of their enfranchisement at an election . . . because the State or the Nation has extended its own hand and removed these men, for the time, out of their place in the body politic . . . we also have an industrial situation, or rather, an industrial system, and by that system, through no fault of their own, men are removed from their places in the body politic and deprived of their rightful votes. The system of industry which is doing that, which removes these men, is also in the interest of the public good. The sacrifices of the soldiers and sailors are more spec
tacular, and they are more impressive, but for the common good, these men removed from the voting booth by the system of industry, are toiling and sacrificing. Therefore, it seems to me that the analogy is a perfect one.
Whether or not the analogy was perfect, it was widely accepted: by the end of World War I, more than twenty states had provided for absentee voting on the part of anyone who could demonstrate a work-related reason (and in a few cases, any reason) for being absent on election day. Concerns about fraud generally were alleviated by tight procedural rules and requirements that absentee ballots be identical to conventional ones.59
The provision of absentee ballots, however, did not address the largest issue raised by residency requirements: their disfranchisement of everyone who changed residences shortly before an election or who relocated from one state to another in the year before an election. If one accepts the findings of scholars of geographic mobility, the impact of durational residency qualifications had to be substantial, particularly among blue-collar workers, many of whom moved from place to place incessantly. Precisely how substantial is beyond the scope of this study, but a conservative estimate would be that 5-10 percent of the nation’s adult population failed to meet the residency requirements at each election; for manual workers, the figure was surely higher—high enough to have potentially changed the outcomes of innumerable elections.60
Keeping Track of Voters
The edifice of voting law acquired one additional pillar between the Civil War and World War I: pre-election day registration. Before the 1870s in most states, there were no official preprepared lists of eligible voters, and men who sought to vote were not obliged to take any steps to establish their eligibility prior to election day. They simply showed up at the polls with whatever documentary proofs (or witnesses) that might be necessary. To be sure, Massachusetts was registering voters as early as 1801, and a few other states implemented registration systems before 1850, but registration was uncommon before the Civil War. Moreover, as noted in Chapter 3, most antebellum proposals for registration systems were rejected as unnecessary and partisan.
Between the 1870s and World War I, however, the majority of states adopted formal registration procedures, particularly for their larger cities. The rationale for requiring voters to register and have their eligibility certified in advance of elections was straightforward: it would help to eliminate fraud and also bring an end to disruptive election-day conflicts at the polls. Especially in urban areas, where corruption was believed to be concentrated and voters were less likely to be known personally to election officials, advance registration would give the state time to develop lists of eligible voters, check papers, interrogate witnesses, and verify the qualifications of those who wished to vote. Although machine politicians objected to registration systems because they were discriminatory (especially if instituted only in cities) and many small-town officials thought they were expensive and unlikely to work, proponents were generally able to override these objections with some ease.61
Yet the devil was in the details. However straightforward the principle of registration may have been, the precise specifications of registration laws were a different and more contested matter. How far in advance of elections did a man or woman have to register? When would registration offices be open? Did one register in the county, the district, the precinct? What documents had to be presented and issued? How often did one have to register? All such questions had to be decided, and since the answers inescapably had implications for the composition of the electorate, they were a frequent source of contention.
Three examples reveal the contours of the terrain. In New Jersey, a state with a long and colorful history of electoral disputes, Republicans instituted registration requirements in 1866 and 1867. All prospective voters had to register in person on the Thursday before each general election: anyone could challenge the claims of a potential registrant, and no one was permitted to vote if his name was not on the register. In 1868, the Democrats gained control of the state government and repealed the registration laws, stating that they penalized poor men who could not afford to take time off from their jobs to register. In 1870, the Republicans returned to power and reintroduced registration, this time making it applicable only to the seven cities with populations greater than 20,000. Six years later, the law was extended to all cities with more than 10,000 persons and to adjacent communities; at the same time, in a concession to party organizations, the registration procedure was liberalized, permitting any legal voter (such as a party worker) to enroll others by affidavit. During these years, and for decades thereafter, the two parties also feuded over the hours that the polls would be open: when the Republicans were able to, they passed laws closing the polls at sunset on the grounds that illegal voting was most likely to occur after dark; the Democrats protested that “sunset laws” kept workers from voting, and when in power, they extended the hours into the evening.62
These partisan battles continued to rage (Republicans imposed more stringent registration procedures on Newark and Jersey City in 1888), although for a time the touchstone of conflict became ballot reform rather than registration. During the Progressive era, however, registration became the centerpiece of efforts, spearheaded by middle-class reformers, to limit corruption and reduce the electoral strength of immigrants, blacks, and political machines. In 1911, a package of two bills, the Geran Act and the Corrupt Practices Act, was introduced into the state legislature by a coalition of independents, Republicans, and a few Democrats. After heated debate, during which urban Democrats succeeded in removing some of the legislation’s most onerous features, the bills were passed, creating a registration system that applied to every city with a population greater than 5,000 persons. Personal registration was now required, and it had to be renewed whenever a voter moved or failed to vote in an election. Prospective voters were given only four days in which they could register, and at registration a man was obliged not only to identify himself and his occupation but to give the names of his parents, spouse, and landlord, as well as a satisfactory description of the dwelling in which he lived. To no one’s surprise, these reforms sharply depressed turnout, particularly among blacks and immigrants.63
In Illinois, a durable registration system was hammered into place in the 1880s. It was crafted by the business and social elites of Chicago, who were dismayed by their loss of political control of the city to allegedly corrupt Democratic politicians. Their primary vehicle of reform was the Union League Club, founded in 1879 to promote a third term for Ulysses Grant and to push for reforms that would “preserve the purity of the ballot box.” In the early 1880s, the club began to promote registration reform to replace a weak system that had been in effect since 1865. At the same time, it engaged in a kind of political vigilantism, hiring investigators to check polling places and offering a $300 reward to those who helped in the apprehension and conviction of anyone who voted illegally in Chicago in 1883. Despite the club’s efforts, the only “fraudulent” voters apprehended eventually were acquitted in court. Yet in 1885, a registration law drafted by the club’s members and backed by the city’s commercial establishment was passed by the state legislature.64
The act provided for the creation of a board of election commissioners, to be appointed by the county courts, in any city or town that chose to adopt registration. (Chicago did so before the 1886 elections.) These commissioners—each of whom was obliged to post a $10,000 bond—were responsible for dividing their communities into precincts containing a maximum of 450 voters. They were to appoint election judges and clerks who actually administered the process of registration as well as elections in each precinct. To register, a prospective voter had to appear in person before the election judges, on the Tuesday of either the third or fourth week prior to an election. If an applicant’s qualifications were challenged (by a judge or any other voter), he was required to file an affidavit of eligibility, which then would be verified by the judges. Following the two days of registration, the clerks
, assisted by the police, conducted a house-to-house canvass of the precinct to verify the names of all adult male residents and compile a “suspected list” of improperly registered voters. Anyone whose name appeared on the so-called suspected list would be removed from the election rosters unless he appeared before the judges again, on the Tuesday two weeks prior to any general election, and made a convincing and verifiable case for his eligibility. A new general registration, repeating all of these procedures, was to occur every four years. This “act regulating the holding of elections” was amended, during the following decade, to require that one of the two registration days be a Saturday, that a general registration be held every two years rather than four, and that every proprietor of a lodging or boarding house give the election judges the names and “period of continuous residence” of all tenants.65
Three details of the Illinois law revealed its restrictionist thrust. The first was the small size of the precincts: although justified as a means of insuring that election judges would be familiar with their constituents, the creation of tiny precincts meant that anyone who moved even a few blocks was likely to have to register again and meet a new thirty-day residency requirement. The second telling feature was more obvious: there were only two days on which a person could register, a small window by anyone’s reckoning. Finally, the burden of proof, for a person who was challenged or whose name showed up on the remarkably labeled suspected list, was placed on the prospective voter himself. A man whose credentials were questioned had to take the time and effort to speedily establish his own eligibility. The Urban League Club congratulated itself that “the foundations for honest elections were now firmly laid.”66
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