A Brief Overview of Georgia Voting Rights History Milestones and Millstones: Exploring the Disenfranchisement of Minority Voters By Professor L. Lynn Hogue Georgia State University College of Law Originally prepared for the State Bar of Georgia 2006 Annual Meeting, June 2, 2006
I want to acknowledge extensive reliance on Laughlin McDonald's excellent history A Voting Rights Odyssey: Black Enfranchisement in Georgia (Cambridge University Press, 2003) for the details of Georgia's efforts to suppress minority voting. 2
Civics Class version of Milestones in Voting Rights 1776 When this country announced its independence from Britain, voting rights were based on property ownership. This typically meant that those voting were white males over the age of 21 of Protestant religion. 1787 In the newly drafted Constitution, states were given the power to set voting mandates and most were still favorable to white males who owned property. 1830 Many states had dropped religion and property ownership as requirements for voting and with such a large percentage of the population at the polls, political parties were beginning to develop. 1868 The 14th Amendment recognizes African Americans as citizens, giving them the right to vote. However, state officials continue attempts to deny this right. 1870 African Americans were given the right to vote in the 15th Amendment. It prohibited any state or local government from denying that right. 1890 Wyoming becomes the first state to recognize women's right to vote and provide for it in a state constitution. 1913 Voting power is expanded with 17th Amendment, calling for the popular election of U.S. Senators. 1920 The 19th Amendment was added to the Constitution, giving women across the nation the right to vote. 1940 Congress recognizes Native Americans as citizens. However, it wasn't until 1947 that all states granted them the right to vote. 1964 The 24th Amendment declares that no person should be denied the right to vote because they cannot pay a "poll tax." 1965 An amendment to the Voting Rights Act bans the use of literacy tests, poll taxes and other obstacles designed to keep people from voting. Adapted from: http://www.flaglerelections.com/kids/history.htm 3
An Annotated, Anecdotal Timeline of Georgia Voting Rights History At the conclusion of the Civil War, three amendments are added to the federal Constitution: the Thirteenth (1865) abolishing slavery, the Fourteenth (1868), inter alia conferring citizenship on newly freed slaves, and the Fifteenth (1870) forbidding discrimination on the basis of race in the exercise of the franchise. All three amendments include power for Congress to "enforce" the amendments' provisions "by appropriate legislation." 1870 and 1871 Congress passed three Enforcement Acts under its enforcement authority to address efforts by whites in the south to deny blacks the right to vote. The first penalized anyone who interfered with another person's right to vote. The second provided for the surveillance of congressional elections by federal marshals and supervisors. The third, the Ku Klux Klan Act, outlawed conspiracy, disguise and intimidation which were seen as central to terrorist Klan activities. Millstones in Voting Rights 1874 Minor v. Happersett, 88 U.S. 162 (1874) The right to vote is solely a product of state law. The right to vote was not part of the privileges and immunities of citizenship, and States were free to deny the franchise on any basis except race. Women, although citizens, could not vote unless state law conferred that right on them. 1875 United States v. Reese, 92 U.S. 214 (1975) The Fifteenth Amendment does not confer the right of suffrage upon anyone; states may continue to set age, property, education and other restrictions on groups. It only prevents the States or the United States from denying the vote to anyone on account of race. Reese dismissed an indictment against a tax collector for refusing to accept a capitation or poll tax (generally defined as a tax on a person without regard to his property, employment, or occupation) because of the taxpayer's race. As a result, the victim could not meet the qualification for voting because he hadn't paid his poll tax. Racial denials of the franchise that arose from denials of collateral matters relating to qualification for voting were not within the reach of the Fifteenth Amendment. The decision largely eviscerated the first enforcement act. 4
United States v. Cruikshank, 92 U.S. 541 (1875) The third enforcement act was unconstitutional as applied to the lynching of two blacks. Punishment of crime was the province of the state; neither the Fourteenth nor the Fifteenth Amendments were intended to alter this distribution of power in a republic with dual federalism. The indictment was insufficient to state a denial of federal rights. Cruikshank portended only limited enforceability of the Ku Klux Klan Act. 5
A Time Line of the Georgia Experience Constitution of Georgia of 1777, Art. IX The franchise is limited to "male white inhabitants, of the age of twenty-one years." Constitution of Georgia of 1789, Art. IV The franchise is extended to "citizens and inhabitants" but neither slaves nor free blacks are regarded as "citizens" and thus are ineligible to vote. Bryan v. Walton, 14 Ga. 185 (1853) Even free persons of color were part of "a race of Pagan slaves" for whom "the social and civil degradation, resulting from the taint of blood adheres to the descendants of Ham in this country, like the poisoned tunic of Nessus; that nothing but an Act of Assembly can purify, by the salt of its grace, the bitter fountain -- the 'darkling sea.'" (Lumpkin, J.) Georgia Code of 1861 By law, free blacks were expressly denied citizenship: [t]he free person of color is entitled to no right of citizenship, except such as are specially given by law. His status differs from that of the slave in this: No master+ having dominion over him he is entitled to the free use of his liberty, labor and property, except so far as he is restrained by law. ( 1612) and by law it was a crime to teach "any slave, negro, or free person of color, to read or write" or to provide them with books or writing material ( 4496, 4500) Constitution of Georgia of 1865 Blacks are excluded from voting and office holding (Art. V, Sec. I, para. I) and regulated by Black Codes, or laws applying only to African Americans that exclude them from voting, jury service, education and marrying outside their race ["persons of color" include "all negroes, mulattoes, mestizoes, and their descendants, having one-eighth negro, or African blood, in their veins" Ga. Laws 1866, p. 239] 6
First, Second and Third Reconstruction Acts (1867) Black voters are registered under military supervision. Approximately 200,000 new voters are added to the rolls by the registrars, "nearly half of them black." (Laughlin McDonald, A Voting Rights Odyssey) Constitution of Georgia of 1868 Assures black citizenship and male suffrage but does not expressly guarantee blacks the right to hold office. Ku Klux Klan is organized in Georgia in 1868 "During its early years, the Klan functioned essentially as the terrorist wing of the Democratic Party, with its main purpose being to drive the Republicans from political power by every means possible." (Laughlin McDonald, A Voting Rights Odyssey) Georgia is readmitted to the Union 1868 contingent of ratification of the Fourteenth Amendment (July 21, 1868). Twenty-eight black members of the legislature are expelled in 1868 because they are ineligible under state law to hold office. Congress restores Georgia to military supervision. Georgia ratifies the Fourteenth Amendment a second time and the Fifteenth Amendment for the first time leading to readmission to the Union again (July 15, 1870). 1870 Akerman Law (Ga. Laws 1870, p. 63) prohibits challenging or hindering voters at the polls and abolishes the poll tax. 1871 Redemptionist Democrats repeal the Akerman voter challenge law, reinstitute the poll tax, abolish some county elections and substitute a government appointed by the governor, and abolish ward elections in Atlanta. Local school board elections are replaced by grand jury appointments. Jury service was limited to "upright and intelligent persons," a standard that was used to exclude blacks. Georgia Constitutional Convention of 1877 Convention leader Robert Toombs: "Give us a convention, and I will fix it so that the people shall rule and the Negro shall never be heard from." 7
Constitution of Georgia of 1877 Hayes-Tilden Compromise of 1877 Southern Democrats agree to support Republican Rutherford B. Hays for President in return for an end to Reconstruction and the withdrawal of federal troops. Williams v. Mississippi, 170 U.S. 213 (1898) Upheld the constitutionality of literacy tests and poll taxes and quoting with approval the explanation of racial disenfranchisement measures from Ratliff v. Beale, 74 Miss. 247, 20 So. 865 (1896) Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from that of the whites,-a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone. A voter, who should move out of his election precinct, though only to an adjoining farm, was declared ineligible until his new residence should have continued for a year. Payment of taxes for two years at or before a date fixed many months anterior to an election is another requirement, and one well calculated to disqualify the careless. Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not. 8
Giles v. Harris, 189 U.S. 475 (1903) Upheld an elaborate and acknowledged scheme to disenfranchise blacks from voting: The allegations of the bill may be summed up as follows: The plaintiff is subject to none of the disqualifications set forth in the Constitution of Alabama and is entitled to vote,-entitled, as the bill plainly means, under the Constitution as it is. He applied in March, 1902, for registration as a voter, and was refused arbitrarily on the ground of his color, together with large numbers of other duly qualified negroes, while all white men were registered. The same thing was done all over the state. Under 187 of article 8 of the Alabama Constitution, persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race. Therefore by the refusal the plaintiff and the other negroes excluded were deprived, not only of their vote at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903. The white men generally are registered for good under the easy test, and the black men are likely to be kept out in the future as in the past. This refusal to register the blacks was part of a general scheme to disfranchise them, to which the defendants and the state itself, according to the bill, were parties. * * * If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that state by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States. Atlanta Race Riot, September 1906 The Disenfranchising Act, Ga. Laws 1908, p. 27 Georgia adopts a literacy test for voting, the last southern state to do so. The law contains other 9
provisions also intended to prevent blacks from voting, see South Carolina v. Katzenbach, 383 U.S. 301, 310-11 (1966) (the 1908 Georgia law was "specifically designed to prevent Negroes from voting.") The White Primary Nixon v. Herndon, 273 U.S. 536 (1927) Nixon v. Condon, 286 U.S. 73 (1932) Grovey v. Townsend, 295 U.S. 45 (1935) Terry v. Adams, 345 U.S. 461 (1953) King v. Chapman, 62 F.Supp. 639 (M.D.Ga. 1945), aff'd sub nom. Chapman v. King, 154 F.2d 460 (5th Cir. 1946) Breedlove v. Suttles, 302 U.S. 277 (1937) Georgia's poll tax is upheld: "[t]he payment of a poll tax as a prerequisite to voting is a familiar and reasonable regulation long enforced in many states and for more than a century in Georgia." at 283-84. The Georgia poll tax was repealed in 1945 [Ga. Laws 1945, p. 129] and outlawed in the Twenty-fourth Amendment (1964) for federal elections. Subsequently, in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Supreme Court overruled Breedlove and held the poll tax illegal for state elections as well. The County Unit System "Whatever its historic justification, the county unit system in modern times served two fundamental purposes. One was to ensure control of statewide offices by the rural counties with a minority of the state's population. The other, which had become more critical since the abolition of the white primary, was to contain the black vote in the urban areas of the state." (Laughlin McDonald, A Voting Rights Odyssey) Gray v. Sanders, 372 U.S. 368 (1963) Held the county unit system was unconstitutional because it denied "equality of voting power" required by the norm of "one person, one vote." Majority vote requirement (1963) Voting Rights Act of 1965 10