IN SOUTH CAROLINA, FRAUD, INTIMIDATION, AND EVEN the eight-box law were not sufficient for white supremacist Democrats. To their astonishment and disgust, African Americans continued to vote, albeit in ever dwindling numbers. Blacks even succeeded in electing some of their number to positions in state government, and one, George Washington Murray, to the United States House of Representatives.
To buttress its disfranchisement efforts, in 1882, the state legislature passed a law that required all voters to reregister by June of that year or be forever barred from voting. The only exceptions were for men turning twenty-one after that date or moving to South Carolina from another state or country. Residency requirements, a poll tax—nonpayment of which was made a criminal offense—and voting registrars who made it as difficult as possible for men of color to register would, it was expected, drastically cull the voting rolls. In addition, a man registered to vote in one precinct was required to reregister if he moved to another, a provision aimed at black farm laborers, whose work was crop-oriented and seasonal.
But still, black voters were not dissuaded. “Over the last decades of the nineteenth century, black voters’ persistence continued to frustrate white racists . . . Whites needed more than legislation to stop them.”1 When Mississippi’s 1890 constitution did not immediately arouse ire in the federal courts, white South Carolinians came to understand that they might have been handed a blueprint for finally ridding the state of both black voters and black officeholders.
But as in Mississippi, while there may have been agreement on the need to eliminate African Americans from the voting rolls, there were deep conflicts as to just which white men should rule in their place. Here also there were deep divisions between small farmers and the financial elite. But unlike in Mississippi, where the most powerful and influential politicians had lined up against the populists, in South Carolina, populists had the inexorable force that was Benjamin R. “Pitchfork Ben” Tillman as their savior.
Even by the standards of racist Southern congressmen who got their start in the post-Reconstruction South and eventually dominated Congress—and would be instrumental in the enactment of New Deal legislation decades later—Tillman was unusual. He was known for outsized rhetoric—in addition to his comment about President Cleveland, Tillman bragged about murdering an African American to prevent him from voting, and insisted he would personally lead a lynch mob for any black man accused of raping a white woman. As a youth, Tillman had lost an eye—not in the Civil War in which he had never served, but afterward, as a result of a tumor. He never wore an eye patch, which gave him a somewhat grotesque backwoods mien, and added to the popular view of him as an unlettered, lower-class lout.
He was anything but.
Tillman’s family owned considerable land, and he, in his own right, was a successful farmer before he entered politics. Nor was land the only inheritance received by Tillman from his family. An uncle, John Tillman, who is described as a man of strong intellectual qualities, left him a large library of the best English literature. Perhaps there may be a bit of the romantic in that picture of Tillman spending a good part of each day ‘lying on the piazza floor reading French history and Paradise Lost,’ but there can be no question as to his strong interest in books as well as in farming.2
Tillman was sufficiently savvy to downplay all that and bill himself as the champion of small farmers—men he privately viewed with contempt. When a close friend asked why he raised “so much hell” in his campaigns, Tillman replied, “Well . . . if I didn’t the damn fools wouldn’t vote for me.”3 In office, Tillman prided himself on being a reformer, and to a great degree he was. He was an advocate for public education, of limiting the vast oligopolistic power of railroads, of revising tax and crop mortgage laws to benefit small farmers and business owners, and even of limiting work hours in cotton mills. To his supporters, it was easy to exaggerate Tillman, an elitist to his dying day, as “a man of the people.”
But there was nothing exaggerated about Tillman’s deep and abiding racism. “From the 1870s to the early twentieth century, it was hard to find an individual who played a role at more moments of crisis or who stood more whole-heartedly for the social and political order known as white supremacy.”4 He had first formed the Red Shirts in 1876 to fight against Republican rule, mainly through violence against black voters, and dedicated himself to returning African Americans to the bestial role he was convinced they merited. If anything, violence against black voters increased in subsequent elections, with Tillman urging on his Red Shirt followers.5
Tillman was elected governor in 1890, his main campaign vow to totally remove African Americans from the political process. He called for a new constitution to protect “Anglo-Saxon Supremacy,” and “with that end in mind, he used Mississippi as his model for action . . . Consequently, over the next two years, Tillman worked assiduously at having a similar constitution adopted in South Carolina. By December 1892, Tillman finally had enough support in the legislature to authorize a referendum on whether to call a constitutional convention.”6
Even then, Tillman faced determined opposition from Republicans, African Americans, and, most significantly, anti-populist white Democrats. Although the Democrats did not band together with either white or black Republicans to form a Fusionist movement, they did have common cause, which resulted in, among other actions, a series of lawsuits attempting to halt the calling of a convention. In one, ex parte Lumsden, two white lawyers sued on behalf of two white men, one a former slave owner, and a black tailor, Lawrence Mills.
According to the 1882 voter registration law, new voters—those who recently turned twenty-one or moved to South Carolina from another state—could register only on the first Monday of each month, and only through July in order to vote in that year’s fall election. “The limitation was vigorously enforced with respect to blacks and white Republicans.”7 Mills had become eligible in 1890, but on numerous occasions had been denied admittance to the registrar’s office in Richland County—they had literally closed the door in his face—and so had been unable to register. The two white men had not been denied the right to vote, but had neglected to register, one because he had been out of town, and the other because he had been unaware of the law.
The lawsuit failed in state court. Soon afterward, in the November 1894 elections, Tillman’s referendum on calling a convention passed by a mere 1,879 votes, a result that Republicans and many conservative Democrats denounced as fraudulent. They were almost certainly correct, since in areas of Tillman’s strength, the pluralities were a good deal larger than even what had become the ballot-box-stuffed norm. In fact, a Charleston newspaper would later admit, “there is little doubt that the call to a convention was fairly defeated,” and the conservative Democrat who had lost the race for governor called the election “the most fraudulent and outrageous ever held in this state.”8 By whatever means, Tillmanites had gained firm control of the state legislature and a call for a constitutional convention.
Pressing their advantage, on December 24, Tillman’s legislature passed a law that scheduled an election for convention delegates for the following summer, and included restrictive rules for who would be allowed to vote for those delegates. Anyone wishing to cast a ballot for convention delegates was required to prove, in writing, that he had registered and voted in every election since becoming eligible, which for most black voters was impossible. Many poor whites would have also found providing such documentation difficult, but with Tillman’s supporters in charge of most of the registration offices, this was not considered a serious impediment. The registration period itself was to be in March and only ten days long.
Republicans and conservative Democrats vowed to do what they could to block the convention. George Murray used what little influence he had to organize resistance, and also tried to help black voters register, an effort in which he largely failed as black applicants “were turned away in droves” by Tillman’s registrars.9
After the registration closed, in an attempt to prevent the election, the two white lawyers who had lost in Lumsden, Henry Obear and Charles Douglas, filed a new action, this time in federal court, with Lawrence Mills, the black tailor, as the sole plaintiff. Mills, specifically citing W. Briggs Green, the registration supervisor for Richland County, claimed that he had been prevented from registering and that the restrictions themselves were discriminatory in violation of the Fourteenth Amendment, since they were clearly intended to deny black South Carolinians due process of the law. As such, the election of delegates should not be allowed to go forward, which would mean a new constitution could not be drafted. Obear and Douglas also threw in privileges and immunities, although the Slaughter-House precedent seemed unlikely to be broken. Oddly, they made no Fifteenth Amendment claim, although their argument would seem to have been a textbook example of denial or abridgement of the right to vote “on account of race.” South Carolina argued that the law in no way denied due process since it would apply equally to blacks and whites. In addition, the state claimed the federal court had no jurisdiction, since “the matters, facts, and things alleged and complained of in the bill are matters relating to the political duties of [Green’s] office.”10
The case would normally have been heard by Judge Charles Simonton, but Simonton, a South Carolina native, had been embroiled in a fierce battle with Governor Tillman over the laws governing liquor dispensaries and deferred to his Fourth Circuit colleague, Nathan Goff.11 (Tillman left the state house for the United States Senate in March 1895, leaving the governor’s chair to a close ally, John G. Evans.) Goff, from West Virginia, heard Mills’s appeal on April 19, 1895. Given that the courts had never overturned a law that did not announce itself as discriminatory—at least for African Americans—no one, especially Tillman and his supporters, was particularly worried.
But Nathan Goff broke with tradition and applied the law based on what was readily apparent even to white supremacists. (They had, after all, made no secret of their intentions.) He issued a temporary order on April 20, which he made permanent on May 8, 1895, in a blistering opinion. As to South Carolina’s voting requirements in general, he wrote,
A careful examination of the registration enactment of the state of South Carolina . . . brings me to the conclusion that if a voter who was duly qualified and entitled to register in May and June, 1882, did not, on account of absence, sickness, inadvertence, or other cause, register when the books were open in that year, he was not only prevented from voting at the general election in November, 1882, but was and has been prevented—under the law—from voting at all elections held in the state subsequent to said election in 1882. This seems almost incredible, yet I think it is correct. The statement is appalling, the outrage stupendous, the result close to the border land that divides outrage from crime. It is not necessary to discuss it further; likely the least said about it the better.12
As far as the convention act of 1894 was concerned, Goff said,
The one object that controlled the minds of those who formulated the enactment I have been considering was how to successfully destroy the greatest number of the ballots of the citizens of African descent, while at the same time to interfere with as few as possible of those of the white race. The fact is that, with a candor that was as frank as it was amazing, this was virtually admitted during the argument of this case. It is evident that the effect of this registration system is to fearfully impede the exercise of the right of suffrage by the colored voters of the state of South Carolina. It to a great extent, defeats their constitutional right to vote, and it seems to be its leading—I must be permitted to say, its only—object, the effect being to so legislate as to apparently respect constitutional requirements, but at the same time to stab to the death the rights and immunities guaranteed by them.13
Goff’s opinion was the first since the ratification of the Fourteenth and Fifteenth Amendments to directly attack the transparent sleight of hand freely employed by the Redeemed South to deprive African Americans of their civil rights.
South Carolina whites were either aggrieved or outraged. One editorial read,
Up to last Thursday, both white factions were practically agreed that the Negro majority in this State should be eliminated by disfranchisement; but the question as to whether this should be accomplished with or without also disfranchising ‘a single white man,’ presented a formidable issue. Now that Judge Goff has practically decided that all Negroes will be entitled to vote in the approaching election, the important question is not whether a ‘single white man’ shall be disfranchised; but whether the white men can control the convention . . . The majority of the white people of the State only want justice.14
For outrage, one need look no further than Ben Tillman. “Governor Evans and Senator Tillman, upon hearing of Goff’s decision, flew into an apoplectic rage and made vague threats of violent revolution.”15
Instead, however, they appealed the ruling to circuit court, where the case, now Green v. Mills, would be heard in Richmond, Virginia. According to the rules then in place, Judge Goff would have been entitled to sit on the three-man panel, and even chair it. But, like Judge Simonton in the original action, he chose to recuse himself, this time in favor of Supreme Court Chief Justice Melville Fuller, who was in charge of the Fourth Circuit.
Morrison Waite had died in March 1888, and on April 30 President Cleveland nominated Melville W. Fuller to take his place. Fuller had practiced corporate law for three decades, was politically active—some said a hack—and, like his predecessor, had no judicial experience. If Waite’s nomination had been met with accusations of mediocrity, Fuller, for many, did not represent a step up. He was described by a critic as the “fifth best lawyer in the city of Chicago,” not meant as a compliment to either the man or the city. The New York Times praised Fuller’s affability, his friends in both parties, the social prominence of his wife, his friendship with President Cleveland, and the number of his visits to plead cases before the Supreme Court as an attorney. Missing from the Times article and most other descriptions of Fuller was any praise for excellence or an incisive legal mind.16 The New-York Tribune called Fuller “unknown,” and said he was “practically a man without a record. His availability seems to have been the principal cause that led to his appointment.”17 Fuller seemed hardly the man to entrust with the civil rights of African Americans. He had “led legislative opposition to Lincoln’s Emancipation Proclamation, had supported state constitutional provisions that rejected black suffrage and black migration, and had helped segregate Chicago schools.”18
Although all the parties agreed that a quick ruling was vital—the convention was, after all, scheduled to meet in just a few months and delegates needed to be chosen—Fuller and his two fellow judges did not hear South Carolina’s appeal until June 7, 1895. Four days later, they announced their decision. Judge Goff’s ruling was set aside and the state was therefore free to proceed with the election of delegates under a set of rules that Goff had found—and events would prove—blatantly discriminatory. To justify his decision, Fuller, for the first time in such cases, employed a rationale that the Court would subsequently use to good effect to avoid enforcing the constitutional guarantees of equal rights.
Fuller wrote,
It is well settled that a court of chancery is conversant only with matters of property and the maintenance of civil rights. The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property, nor in matters merely criminal, or merely immoral which do not affect any right of property . . . To assume jurisdiction to control the exercise of political powers, or to protect the purely political rights of individuals, would be to invade the domain of the other departments of government or of the courts of common law . . . To interfere in the mode asked for by the complainants, would be to stop a popular election in one portion of the State, and thus arrest, as to it, the wheels of government.19
As for “irregularities in the conduct of an election, for receiving illegal or rejecting legal votes,” Mills and other African Americans must look to the state laws that had been enacted for the purpose of denying them recourse to those very practices. On the Fifteenth Amendment, Fuller wasted almost no energy. “No discrimination on account of race, color or previous condition of servitude is charged, or pointed out as deducible on the face of the acts in question,” he wrote with a healthy dollop of disingenuousness. He based this statement on his observation that Mills had suffered no injury at the hands of South Carolina because no election had taken place in which he was denied the right to vote. And while it was true that Mills “had claimed ‘no threatened infringement of rights of property or civil rights,’ [Fuller ignored] the fact that the very purpose of Mills’s case was to ameliorate such a threat.”20 In fact, Tillman, in an interview with a Charleston newspaper, had said, “The one overpowering and essential idea which made the convention a necessity was the preservation of white supremacy by such purification of the suffrage as will save us from negro domination in future under any and all conditions.”21 It is difficult to read such a statement and not conclude that “discrimination on account of race, color or previous condition of servitude” was not present, but Fuller managed to do so.
With race discrimination and thus the Fifteenth Amendment off the table, Fuller was free to revert to what has become known as the “political question doctrine,” and claim, as he did, a lack of jurisdiction. The theory is sound enough—requiring the judiciary to avoid substituting itself for either the legislative or the executive is fundamental to a system of separation of powers. In a tradition that stretches back to John Marshall in Marbury v. Madison, the Supreme Court has traditionally eschewed the “activist” position and declined to issue rulings that would inappropriately inject itself into the political process.
The problem is in application—just what is or is not political can come and go as practicalities demand. In contemporary society, “activist judges” have become a particular target of conservatives, yet it is difficult to imagine two cases more “political” than Bush v. Gore and Citizens United, in each of which conservative justices imposed themselves on the legislative process, to the applause of their philosophical bedfellows.
In Melville Fuller’s time, the political question doctrine was used as a means of avoidance, and he was the first justice to use the political question doctrine to tap-dance around an equal rights appeal. “Where Goff was willing to act on what he knew to be true, Fuller stubbornly, and to a degree conveniently, refused to do likewise.”22
With Fuller’s ruling, the door was flung open for Tillman and Evans, and they rushed on through. Elections for delegates were held in August and, as everyone but Melville Fuller and his fellow judges might have predicted, Tillman’s “Reformers” won 112 of the 160 seats. Forty-two seats went to conservative Democrats, who, whatever their differences with the Tillmanites, agreed with them on the need to disfranchise African Americans. Finally, in a state where eligible black male voters outnumbered whites by 130,000 to 100,000, only six black delegates were elected to be delegates.
The convention first met in Charleston on September 10, 1895, and continued until December 4, when, as in Mississippi, the constitution was ratified by the delegates rather than being submitted to the people. In early October, a preliminary plan was released to the public. Like the Mississippi constitution, it contained residency requirements, a poll tax, property tax, and a reading and understanding requirement. But Tillman’s plan had an unusual wrinkle. Anyone who was “able to read and write any section of this Constitution, or show that he owns and pays taxes on $300 worth of property in this State” before January 1, 1898, would be registered for life. But “a separate record of all illiterate persons thus registered, sworn to by the registration officer” was to be filed with the clerk of court and in the office of secretary of state.
The record to be kept of the poor and illiterate infuriated some Democrats, who thought no white man should be on the same list as “sea island negroes.” Tillman’s fellow United States senator John L. M. Irby, also a convention delegate, exclaimed in an interview with the Piedmont Headlight, which was reprinted in newspapers across the state,
I look upon that report as a political monstrosity, one of the most dangerous schemes ever concocted in the brain of man, and I shall fight it and vote against it if I have not another member upon the floor at my back. I do hope that The Headlight will go to work without delay and arouse the white voters of our State as to the danger that threatens both the poor and illiterate white men and also the political supremacy of the Anglo-Saxon race in our State.23
Irby and Tillman loathed each other, but Tillman was savvy enough to realize he couldn’t afford to alienate conservative delegates, and the “poor and illiterate register” was removed. The final version required “residence in the State for two years, in the County one year, in the polling precinct in which the elector offers to vote four months, and the payment six months before any election of any poll tax then due.” The property tax requirement for poor whites was eliminated, but written proof of payment of the previous year’s poll tax was required.
Most significantly, the “reading and understanding” clause was made two-tiered. For one group,
Up to January 1st, 1898, all male persons of voting age applying for registration who can read any Section in this Constitution submitted to them by the registration officer, or understand and explain it when read to them by the registration officer, shall be entitled to register and become electors. A separate record of all persons registered before January 1st, 1898, sworn to by the registration officer, shall be filed . . . and such persons shall remain during life qualified electors unless disqualified by the other provisions of this Article.
It was assumed that white men, regardless of literacy or wealth, would qualify under these provisions.
For the second,
Any person who shall apply for registration after January 1st, 1898, if otherwise qualified, shall be registered: Provided, That he can both read and write any Section of this Constitution submitted to him by the registration officer or can show that he owns, and has paid all taxes collectible during the previous year on property in this State assessed at three hundred dollars ($300) or more.
There was a broad list of disqualifying offenses, once again skewed to the types of offenses thought to be committed by African Americans. No one could register or vote who had been “convicted of burglary, arson, obtaining goods or money under false pretenses, perjury, forgery, robbery, bribery, adultery, bigamy, wife-beating, house-breaking, receiving stolen goods, breach of trust with fraudulent intent, fornication, sodomy, incest, assault with intent to ravish, miscegenation, larceny, or crimes against the election laws.” In case too many whites were caught in that net, “the pardon of the Governor shall remove such disqualification.”
The constitution also disqualified those deemed to be “idiots, insane, paupers supported at the public expense, and persons confined in any public prison.”
There was an additional section of the new constitution not involving suffrage, but of great significance for the future. “Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever separate be permitted to attend a school provided for children of the other race.”
* * *
In September, while the newly elected South Carolina constitutional convention delegates were preparing to join in removing the state’s citizens of color from the political process, Obear and Douglas had launched an appeal of the circuit court decision overturning Judge Goff’s injunction. They filed their motion with the Supreme Court on September 4, 1895, one week before the convention met, but the Court did not enter the appeal until September 19. More than a month would pass before the Court formally accepted the submission on October 25, by which time the convention had formulated its draft of suffrage rules to which Senator Irby had taken such umbrage.
South Carolina’s defense was simple. The state objected to the filing on the grounds that, since the election of delegates had already taken place, “there is now no actual controversy involving real and substantial rights between the parties to the record, and no subject matter upon which the judgment of this Court can operate.” The Court agreed. “We are of opinion,” wrote Justice Gray, “that the appeal must be dismissed upon this ground, without considering any other question appearing on the record or discussed by counsel.”24
Gray added,
The duty of this Court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.
And so the merits of the case were never discussed, nor was the Court required to evaluate South Carolina’s conduct with respect to the guarantees of the Fourteenth and Fifteenth Amendments.
While Gray’s reasoning was sound, as was Fuller’s in the circuit court appeal, he, like Fuller, chose to avoid an alternative that would have comported more with real-world events than the politically palatable alternative he chose. Where Fuller and his fellows could have—and should have—prevented a hopelessly tainted election, Gray and his colleagues should have—and could have—voided it. Instead they chose an approach well suited to Beckett, Ionesco, or Joseph Heller.
In June, when the matter came before the Fourth Circuit, Chief Justice Fuller reversed Goff’s injunction because the delegates election had not yet happened and thus had not injured Lawrence Mills. Now, subsequent to that election and subsequent to his injury, the Supreme Court turned down his appeal, because, it held, the registration requirements were dead letters.25
As a result, when the new South Carolina constitution was formally ratified on December 4, 1895, African American participation in the affairs of their government was a dead letter as well.