WHILE THE COURT’S DECISION IN THE Civil Rights Cases did not directly impact voting rights, it did serve to accelerate a de facto process that had begun virtually the day the Civil War ended and had stalled but by no means ended during Radical Reconstruction. “Almost immediately, whites began to map out a new master-servant relationship, one they hoped would look as much as possible like the old—excepting little other than its element of actual human ownership.”1 When Justice Bradley announced both that private individuals were immune from the postwar constitutional amendments and that African Americans could not seek redress in federal courts, except in cases where state governments officially announced their intentions to discriminate, he helped usher in a period of de jure racial discrimination that would last almost a century and was in many ways as odious as slavery itself.
With the Supreme Court, if not overtly an ally, certainly not an enemy, white Southerners could begin to consider moving from the second stage of voter suppression—fraud and contrivance—to the third—disfranchising black Americans with the law. Contrivance, after all, can be an uncertain currency, and some that were employed in the Redeemed South were ludicrous. Southern officials had been forced to openly defend tissue ballots, ballot boxes with false bottoms, and ballot box stuffing. South Carolina had introduced a device called the “eight-box ballot,” each box designated for a specific candidate or party. A voter was required to match the ballot to the box or his vote would be invalidated. The manner in which the ballot and the ballot box were labeled rendered it virtually impossible for someone not literate to cast a valid vote. Whites unable to read were given assistance by poll workers, whereas blacks were left to try to decipher the system on their own. Despite the obvious intent of disfranchising African Americans, the eight-box ballot law comported with the Court’s previous rulings.
So egregious were these practices that in 1890, Thomas Brackett Reed of Maine, the sitting speaker of the United States House of Representatives—and a Republican—published an article in the North American Review attacking white Southern Democrats. One of his targets was the eight-box law, and he cited an 1888 speech by John P. Richardson III, governor of South Carolina, who had extolled the practice. “We have now the rule of a minority of four hundred thousand [whites] over a majority of six hundred thousand [blacks],” Richardson had said. “No army at Austerlitz or Waterloo or Gettysburg could ever be wielded like that mass of six hundred thousand people. The only thing which stands to-day between us and their rule is a flimsy statute—the Eight-Box Law—which depends for its effectiveness upon the unity of the white people.”2
“No form of government can be based on systematic injustice; least of all a republic,” Reed complained. “All governments partake of the imperfections of human nature and fall far short not only of the ideals dreamed of by good men, but even of the intentions of ordinary men. Nevertheless, if perfection be unattainable, it is still the duty of every nation to live up to the principles of simple justice, and at least follow the lights it can clearly see.”3 While Republicans had not always been paragons of “simple justice,” they certainly seemed so by comparison.
To prove it, Reed needed to look no further than the words of Southern whites themselves. Of ballot box stuffing, for example, he had any number of examples to choose from.
Where else on earth would you get such a declaration as came from John P. Finley, of Greenville, Miss., for twelve years treasurer of his county—a declaration made in the presence of his fellow-citizens—that he did not consider ballot-box stuffing a crime, but a necessity; that in a case of race supremacy a man who stuffed a ballot box would not forfeit either his social or business standing; and that ballot-box stuffing, so far as he knew, was looked upon by the best element in the South as a choice between necessary evils?
Reed offered another example. “You would search far before you would find the parallel of what Watt K. Johnson said. ‘I would stuff a ballot-box,’ said he, ‘if required to do it, to put a good Republican in office, as I would a Democrat, as my object is to have a good honest government.’ ‘Good honest government’ by ballot-box stuffing!”4
But not all Southern Democrats were so sanguine about the wisdom of perpetuating fraud. In Mississippi, Judge J. J. Chrisman told his fellow Democrats,
Sir, it is no secret that there has not been a full vote and a fair count in Mississippi since 1875—that we have been preserving the ascendency of the white people by revolutionary methods. In plain words, we have been stuffing the ballot boxes, committing perjury, and here and there in the state carrying the elections by fraud and violence until the whole machinery for elections was about to rot down. The public conscience revolted . . . it required no Solomon to see that the ballot-box-stuffer cannot always be relied on to elect the best man to office.5
However much revulsion Southerners claimed to feel, there was no arguing with results. In Mississippi, for example, the entire congressional delegation and virtually the entire state government were white and Democrat, even though blacks outnumbered whites in the state’s population by 742,559 to 544,851. Still, despite terror, fraud, and what seemed to be an exercise in futility, black Americans continued, even at risk to their lives, to attempt to vote. For a permanent solution that would be immune to the vagaries of Congress and even the Supreme Court, white Democrats would need to use the law to disfranchise a group of American citizens that the Constitution now said could not be denied the vote on account of race. Since, with Strauder on the books, no discrimination could be prescribed by statute, Democrats sought “a means of disenfranchisement which, on its face, would be noncoercive and nonviolent.”6 Savvy Mississippi Democrats realized that the most effective way to achieve that end would be by copying the very stratagem Radical Republicans had employed twenty years before—if the Reconstruction South had been forced to adopt new constitutions to guarantee blacks the vote, the Redeemer South would do the same to take it away. And so a move began in Mississippi to convene a constitutional convention “principally with a view to changing suffrage qualifications.”7
At first, it seemed that those who favored such an approach could simply tap into the lingering resentment engendered by the constitution that had been forced on Mississippi in 1868. Judge Solomon S. Calhoon, a convention proponent, observed that “the effrontery of such a collection of irresponsible men undertaking to frame organic law, aroused intense indignation and scorn, which extended beyond the makers to the work and persisted against that constitution as long as it existed.”8
But Mississippians soon realized that drafting a new constitution was not going to be the simple, straightforward operation they assumed it would be. While whites were virtually unanimous in their desire to disfranchise African Americans, there were any number of other contentious issues that constitutional debates would inevitably dredge up. Mississippi had an economic class divide in which small farmers deeply resented the power of large landowners and the centralization of wealth. They wanted any new constitution to mandate that judges be elected rather than appointed, that corporations be taxed at the same rate as small farmers, that legislation favoring moneyed interests be drastically restricted, and that the legislature be structured to more reflect what they saw as popular will. Even denying black Mississippians the vote turned out to be more difficult to achieve than first thought—poor and illiterate white men might easily be swept away as well, which would erode the power of state officials with large numbers of such voters in their districts. One of Mississippi’s United States senators, Edward C. Walthall, called a convention “an unnecessary, expensive, and dangerous experiment” which would “restrict the elective franchise by imposing on it conditions which would strike down tens of thousands best white Democrats in Mississippi.”9 James Z. George, Walthall’s colleague in the Senate, was in favor, stating that it would “enable us to maintain a home government under the control of the white people of the state.”10
Because of this uncertainty, “Several ineffectual efforts were made between 1876 and 1890 to have a Constitutional Convention called; these efforts failed because a majority of the white people seemed firmly convinced that a convention would be powerless to so far disfranchise the negroes as to give the white people a majority of the electors of the state.”11
But with the United States Supreme Court showing a willingness to tacitly support white supremacy, momentum began to build. A resolution calling for a convention passed in the state house of representatives in 1886, but failed in the senate. In 1888, the resolution passed in both houses, but was vetoed by Governor Robert Lowry. During this period, Mississippi Democrats had to content themselves with the traditional means of denying black citizens the vote—fraud and terror.
Some Democrats viewed the inaction with growing alarm. On January 1, 1888, W. L. Nugent, president of the Mississippi Bar Association, warned,
[Negroes] cannot, in their present state of enlightenment be allowed to administer the affairs of the State. Their majority must not be allowed, encouraged or stimulated to assert itself to the injury of both races . . . The ignoring of [Negroes’] plain constitutional and statutory rights, though necessitated by our present surroundings, must ultimate in greater evils than we now seek to avoid, unless some remedy be ascertained and supplied; society cannot long bear the strain of a continued disregard of suffrage rights, even though required for its preservation . . . The difficult and almost impossible task ahead of us is, to secure to the white people the control of public affairs with full consent of the negro; to bring the colored voters, by just methods, to a thorough recognition of existing conditions, and of their complete incompetency; and to devise some plan by which, consistent with absolute right, continued and continuing good government may be secured, to ourselves and our children.12
While few disagreed with Nugent’s assessment, fear that a new constitution would be drafted at the expense of some white voters as well as black continued to dominate the process.
As 1888 drew to a close, however, those fears became moot. In the presidential election of that November, Republican Benjamin Harrison succeeded in defeating incumbent Grover Cleveland, although Harrison received fewer popular votes and Cleveland won every electoral vote from Delaware to Texas. But Cleveland, a native New Yorker, lost his home state and its thirty-six electoral votes when his anti-corruption message stoked the ire of Tammany Hall politicians, for whom corruption was something of a religion. Without New York, and no power base in the Midwest and West, Cleveland was finished.
With his base of strength in the former Confederacy, Grover Cleveland had hardly been a friend to African Americans. He “seemed indifferent to upholding Reconstruction-era laws in the South. Between 1886 and 1888, the Cleveland Administration brought only 24 such cases into federal court, and during Cleveland’s entire four-year term, the Justice Department secured only two convictions under the Enforcement Acts.”13
Harrison, on the other hand, realized all too well that Republicans had no hope of ever winning a Southern state without a hefty number of black voters, and Republicans needed to find a way not only to get African Americans to the ballot box, but also to make sure that their votes were counted. Harrison had promised during his campaign to ensure fair elections in the South, a commitment that appealed to northern Republicans for political reasons, not because they had any desire to expend government resources to achieve racial justice.
In 1889, with Harrison’s blessing, Henry Cabot Lodge of Massachusetts announced his intention to introduce a federal elections bill in the House, a measure that would provide, for national elections, oversight of voter registration, access to the ballot, and supervision of vote counting in any congressional district where one hundred people requested it. A federal election supervisor would be appointed in each judicial circuit and granted sweeping powers, which included investigating anyone who attempted to deny the vote to a qualified person and, if appropriate, recommending prosecution to the Justice Department.
Lodge attempted to downplay the notion that the supervisors would usurp state prerogatives.
These officers have no power whatever to interfere with local officers or existing methods. Their only duty is to protect the honest voter, secure evidence to punish wrong-doers, and make public every fact in connection with the election. The State systems, whether they provide for the secret and official ballot or otherwise, are all carefully protected under this law against any interference from United States officers.14
Southerners were not persuaded. To them, the Lodge bill was nothing less than the resurrection of the same Reconstruction initiatives that Democrats had spent two decades trying to get rid of. They called it a “force bill,” an extremely pejorative epithet in the post-Reconstruction South.
Faced with the prospect of the federal government taking control of its elections, Mississippi Democrats’ reluctance to call a constitutional convention evaporated. Incendiary issues such as distribution of power in the legislature, rights of small farmers, and election of judges became unimportant, subordinated to the “all absorbing suffrage question,” the “leading matter” that a constitutional convention would address.15
A Mississippi editorial read,
It is frankly admitted that the great question before [the convention] is a political one—how to frame the laws so as to keep the control of the State with the whites for all time to come, how to prevent it from ever falling again into the hands of negroes and carpet baggers as it did in 1868 . . . Mississippi is safe today under white rule, nor can we see any danger ahead to white supremacy; but it has been deemed wise to take the proper precautions now, and to frame a constitution that will render negro supremacy impossible. This is the great and important question which has been discussed in advance, which promises to be the leading matter before the convention.16
In November 1889, Mississippi elected pro-convention Robert Stone as governor, replacing Robert Lowry. Stone took office in January 1890, and the following month the state legislature passed a resolution authorizing a constitutional convention to meet in August of that year, which Governor Stone signed. In March 1890, Henry Cabot Lodge introduced his bill in the House of Representatives, and another Massachusetts Republican, George Frisbie Hoar, introduced a similar bill in the Senate.
Delegates would be chosen for the Mississippi convention by county, which meant that populist issues would weigh on the process. But the fights would only be intraparty, among Democrats. Although a movement began in the Republican Party, particularly among black voters, to elect as many delegates to the convention as possible, Democrats, by the usual means, made certain that virtually none would be elected. The usual means included murder—Marsh Cook, a white Republican, was ambushed and killed on a country road while campaigning to be a delegate. As a result, of the 135 delegates chosen, only two were Republicans, both from Bolivar County, in the heart of the black belt, where 3,222 whites lived among 26,737 blacks.17 One of these was the convention’s only black delegate, Isaiah Montgomery, who had risen from slavery, owned by Jefferson Davis’s brother, to become perhaps the wealthiest black landowner in the state. Montgomery was on record as willing to acquiesce to disfranchisement.
On July 2, 1890, the Lodge bill passed the House by six votes. Although prospects in the Senate were unclear, with a Democratic filibuster in the wind, when the Mississippi constitutional convention met the following month, the potential for federal inspectors making certain that elections were conducted according to law was on the mind of every Democrat. Ensuring that “according to law” would prevent African Americans from voting was the unquestioned single most important feature to be incorporated into the convention’s product. As delegate James K. Vardaman, later to be elected both governor and United States senator, observed, “There is no use to equivocate or lie about the matter. Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics . . . let the world know it just as it is.”18
On the eve of the convention, the Jackson Daily Clarion-Ledger ran a prescient editorial.
If the force bill now pending in Congress, passes, it is fortunate for Mississippi that she will be able through her Constitutional Convention soon to assemble to put such restrictions on suffrage as to render it largely nugatory and deprive it of much of its power for evil. Other Southern states are not so favorably situated, but the example set by Mississippi can be followed by them if the measures adopted prove adequate to meet the evil.19
Although there was unanimity of purpose, the question of method continued to be thorny—no state had ever attempted to end-run the Fifteenth Amendment before, and the delegates in Jackson felt the eyes of the South, if not the entire nation, on their every move. Even whether or not poor whites should be stricken from the rolls was not clear—depending on the rules for apportionment, wealthier counties with a more educated and literate population might stand to gain power in state government if poor whites were denied the vote along with blacks. In some cases, however, the “white counties” needed poor whites, and some black belt counties were willing to have poor whites disfranchised as long as blacks were denied the vote as well.
Another factor, perhaps an overriding one, intruded into this hodgepodge. The second section of the Fourteenth Amendment stipulated that if citizens of a state were denied the vote on account of race, the state would be penalized by a reduction in their House of Representatives delegation, so any method of reducing or eliminating the African American vote could not seem to do so overtly. The Natchez Daily Democrat wrote, “Some are hoping for a new and undiscovered solution of the suffrage question, but these will be disappointed, as time and circumstances have not yet exhumed the key to any solution outside the old Democratic methods,” meaning fraud and intimidation.20
The easiest solution seemed to be accepting the black vote—or at least some of it—but diluting it with a vast increase in the white vote. A number of schemes were floated along these lines. One was a proposal to give the wealthy additional votes, based on the amount of property they held or property taxes they paid, but that aroused too much of a furor among the populist farmers to have any serious chance of adoption. But other proposals to water down the black vote by increasing the white vote got a more enthusiastic reception. One of these was a proposal that Mississippi become the first state in the Union to officially grant the vote to women.
Enfranchising women was the subject of serious debate, which went on for weeks. Agitation for women’s suffrage was nationwide by 1890, and more than a few men foresaw women casting ballots sooner rather than later. There was a question of how to limit eligibility to white women, but there seemed any number of ways to ensure that black women could be kept off the voting lists. Conservatives were aghast at the idea, however, and the Clarion-Ledger, the state’s leading newspaper, moaned that Mississippi would be “a laughing stock of the country.”21 Eventually, but not without reluctance, the idea was abandoned, and disfranchisement was entrusted to a committee to find a solution.
Before getting to voter eligibility, the committee was forced to deal with apportionment. Power in the state legislature had resided largely with the black belt counties in the western third of the state. Representation was based on total population, but because so few black men actually voted, black belt whites exercised a disproportionate degree of control in state government. The plan that emerged would sharply curtail their influence. Although no county would see a decrease in representation, thirteen additional lower house seats were created and assigned to white counties. In addition, a number of new legislative districts were created by carving out the white sections of black counties.
At first there was furious opposition from black county delegates, but with Senator George and Judge Calhoon throwing their full weight behind reapportionment, the black belt county delegates grudgingly agreed. “Senator George himself said that the reapportionment of representation was not the plan he would approve for a ‘homogeneous free people, the main body of whom are capable of self-government.’ He regretted to disturb the legislative apportionment but felt that such a step was ‘demanded by the fundamental necessity of the situation.’”22
With apportionment resolved, George and his colleagues turned to disfranchisement. They settled on a series of rules that, while making no reference to race, would disqualify almost every black Mississippi resident while admitting almost every poor, illiterate white. Provisions included a two-year residency requirement, an annual poll tax, and an elaborate test, which required an applicant to read and interpret a section of the state constitution chosen by a local official. This last qualification purported to be a test for literacy—which had previously been dismissed as it would have disqualified thousands of whites—but the committee had added a wrinkle to keep that from occurring. Whether or not an applicant had satisfied the requirement was left solely to the registrar’s judgment. In theory—and, as it turned out, in practice—whites could be given the most simple clauses to read (and if necessary be helped along by agreeable poll workers) while African Americans were given serpentine, incomprehensible clauses, which had been inserted into the document for that very purpose.
In 1946, race-baiting Senator Theodore Bilbo, during his campaign for reelection, remarked, “The poll tax won’t keep ’em [blacks] from voting. What keeps ’em from voting is section 244 of the constitution of 1890 that Senator George wrote. It says that a man to register must be able to read and explain the constitution when read to him . . . And then Senator George wrote a constitution that damn few white men and no niggers at all can explain.”23
Literacy tests were not new. As a University of Mississippi law professor pointed out in 1910,
An amendment requiring that every person ‘be able to read any article of the Constitution, or any section of the statutes of this state, before being admitted an elector,’ was overwhelmingly adopted by Connecticut in 1854, being the first law of its kind in the United States. This step was taken as a protection against illiterate foreigners who were moving to the state in great numbers.24
But the new constitution was drawn up not merely to prevent any new registration by Mississippi’s extensive African American population, but also to disqualify those already on the rolls. It required reregistration of every potential voter in the state, included a list of disqualifying crimes—bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy—thought to be committed disproportionally by African Americans, and required a voter to be “of good moral character.”
When African Americans were off the voting lists, they would be stricken from jury rolls as well. Finally, to ensure the new constitution’s adoption, the state legislature changed a law that required the document be submitted to the voters and instead allowed a vote among the very delegates who had drawn it up to be sufficient.
George and Calhoon’s efforts notwithstanding, the franchise sections of the new constitution were not universally met with relief and praise. Instead, the new requirements, particularly the “understanding” section, 244, were widely condemned. Critics groused that the clause would either be ineffective in disfranchising blacks or too effective in disfranchising whites. There was no shortage of shrill moral outrage, as by delegate L. W. Magruder, who called the plan “a fraud on its face—the serpent whose trail is on every section.”25
But criticism dried up when white Mississippians realized how effective Senator George’s clause would be—that it would reduce African Americans to political irrelevancy. By 1892, when Grover Cleveland regained the White House—he had learned his lesson from four years earlier—black voting in Mississippi was already fast becoming a memory.
And so, when the delegates ratified their new constitution on November 1, 1890, a new era in the post-Reconstruction South was born.