THE DEEP ROOTS OF RECENT VOTER SUPPRESSION LAWS IN AMERICA

Peter Radan (31 May 2021)

During the campaign for the presidential election of 2020, President Donald Trump openly justified voter suppression laws when he said that if more people were allowed to vote "you'd never have a Republican elected in this country again".[1] In the wake of the 2020 elections, Republican Party controlled state legislatures have moved to amend electoral laws so as to make it harder to actually vote. These laws are designed to disproportionately disenfranchise non-white voters, in particular African-Americans and Latinos, and thereby secure electoral success for the Republican Party.

Most of the reporting of these voter suppression laws have likened them, or traced their origins, to similar, so-called, "Jim Crow" laws, enacted in the southern states in the decades after the Civil War to disenfranchise African-Americans and thereby entrench race-based segregation until the mid-1960s.

However, race-based voter suppression laws have deeper roots and can be traced to the American Revolution. Although the Declaration of Independence of 1776, which Americans to this day celebrate as a founding document, asserted that "all Men are created equal" and are "endowed … with certain unalienable Rights" such as "Life, Liberty and the Pursuit of Happiness", African-Americans were not included within its ambit. This was hardly surprising given that, of the Declaration's 56 signatories, 41 were slaveholders, including its principal author, Thomas Jefferson.[2] Jefferson, who professed to abhor slavery, nevertheless admitted to his racism in his influential Notes on the State of Virginia, first published in 1781. After referring to the "numberless afflictions" of African-Americans such as their "colour", "strong and disagreeable odor", "want of forethought", and tendency "to participate more in sensation than reflection", Jefferson went on to say:

"Comparing them by their faculties of memory, reason, and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior ... and … in imagination they are dull, tasteless, and anomalous. ... [I know of no instance] that a black had uttered a thought above the level of plain narration. … [H]is imagination is wild and extravagant, escapes incessantly from every restraint of reason and taste, and, in the course of its vagaries, leaves a tract of thought as incoherent and eccentric, as is the course of a meteor through the sky".[3]

That this sentiment was shared by the great majority of America's founding generation is attested to by John Jay, soon-to-be America's first Chief Justice, who in 1788 observed that the signatories to the Declaration were "undoubtedly very inconsistent with ... declarations on the subject of human rights", and explained that the reason for this was that they and "the great majority or rather the great body of our people had been so long accustomed to the practice and convenience of having slaves, that very few among them even doubted the propriety and rectitude of it".[4]

However, not all African-Americans in the pre-Civil War era were slaves. There were free African-Americans, principally located in the mainly northern, non-slave states. The description of these states as "non-slave states" is deliberate. Historians typically refer to them as "free states". A recent illustration of this is Jill Lepore's widely acclaimed history of the United States published in 2018 under the title of These Truths. Two of the pivotal events of the pre-Civil War era were the compromises over the issue of slavery with the Missouri Compromise of 1820 and the 1850 Compromise. Both of these compromises involved the admission of new states into the United States. Lepore writes that in 1820 it was Maine that was admitted as a "free state" and that in 1850 it was California that was admitted as a "free state.[5]

To describe Maine, California, and the rest of America's non-slave states of that period as "free states" is a distortion of the truth. Even the description of them as "non-slave states" is not entirely accurate in all cases. For example, although Illinois was admitted as a non-slave state in 1818, Article VI, Section 1 of its 1818 Constitution only prohibited the further introduction of slavery into that state. Illinois' existing slave population remained enslaved for the rest of their lives, although Article VI, Section 3 stipulated that their female children at the age of 18 and male children at age 21 would become free.[6] It was only with Article XIII, Section 16 of its 1848 Constitution that slavery was completely abolished in Illinois.[7]

Martin Delany

As to the extent that America's non-slave states were "free" in the pre-Civil War era can be judged by the way they treated their nominally free blacks. That these states were virulently racist is clear. This is evidenced by the fact that "free states" such as Illinois in 1848,[8] Indiana in 1851,[9] and Oregon in 1857,[10] included anti-immigration articles in their state constitutions which precluded immigration into these states of free African-Americans. In relation to voting rights, although the right to vote was extended to all white adult males in all non-slave states by 1860, free blacks were denied that right in all but five of them.[11] Thus, Martin Delany, an African-American abolitionist, observed that free African-Americans "in the non-slaveholding States, occupy the very same position politically, religiously, civilly and socially, (with but few exceptions,) as the bondman occupies in the slave States".[12]

Popular sentiment behind disenfranchising free African-Americans is evidenced by a statement of a delegate to Pennsylvania's constitutional convention in 1837 who said that if blacks were entitled to vote "every negro in the State, worthy and worthless - degraded and debased, as nine-tenths of them are, will rush to the polls in senseless and unmeaning triumph".[13] In effect, African-Americans were excluded from democracy in America, because, in the words of the Pennsylvania Supreme Court in 1837, "no coloured race was party to [America’s] social compact" and that there was no basis upon which "to raise this depressed race to the level of the white one".[14]

However, not all northern whites were racists. The non-slave states were home to a small, but vocal, group of abolitionists, both black and white, whose response to the policies of non-slave states towards free African-Americans was aptly summarised by Gerrit Smith who, in 1844, wrote:

"The laws and usages by which free people of color in the northern States are vexed, hampered, outraged, crushed, constitute so gratuitous, so wantonly wicked a chiming with the slaveholding policy of the South, and so indispensible a prop of this policy, as to make them not less guilty than the bloodiest slave codes".[15]

It was thus, hardly surprising that, in 1852, in a speech delivered on the occasion of the seventy-sixth anniversary of the Declaration of Independence, the former slave and then prominent black abolitionist, Frederick Douglass, said:

Frederick Douglass

"I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought light and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine. You may rejoice, I must mourn".[16]

The views of these abolitionists were, however, very much a minority view. The voter suppression laws of the non-slave states evidenced a reality openly articulated by the Chief Justice of the Supreme Court, Roger Taney, who, in delivering the opinion of the Court in the notorious case of Dred Scott v Sandford in 1857, said that "the negro race as a separate class of persons ... were not regarded as a portion of the people or citizens of the [the United States]".[17] Taney's opinion was, as Robert Parkinson aptly notes, "a codification, a formalization of the notion of exclusion, first raised in 1775-1776".[18]

It was the voter suppression laws enacted in the pre-Civil War era by so-called "free states" pursuant to this "notion of exclusion" that provided the template for the voter suppression laws of the Jim Crow era. The current Republican Party inspired voter suppression laws are but only their latest manifestation.

Footnotes

[1] "Trump just comes out and says it: The GOP is hurt when it's easier to vote", The Washington Post, 21 March 2020. [2] <http://www.mrheintz.com/how-many-signers-of-the-declaration-of-independence-owned-slaves.html>. [3] Thomas Jefferson, Notes on the State of Virginia, John Stockdale, 1787 at 229-34. [4] John Jay, "Jay to English Anti-Slavery Society", June[?] 1788, in Henry P Johnston (ed), The Correspondence and Public Papers of John Jay, 1782-1793, Vol III, G P Putnam's Sons, 1891 at 341-2. [5] Jill Lepore, These Truths: A History of the United States, W W Norton & Co, 2018 at 179 & 260. [6] Francis Newton Thorpe (ed), The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Government Printing Office, 1909 at 980-1. [7] Ibid, 1008. [8] Ibid, 1009 (Article XIV). [9] Ibid, 1095 (Article XIII). [10] Ibid, 3017 (Article XVII, Section 4). [11] Maine, Massachusetts, New Hampshire, Rhode Island and Vermont: Allan J Lichtman, The Embattled Vote in American: From the Founding to the Present, Harvard University Press, 2018 at 37 & 45-63. [12] Martin Robison Delany, The Condition, Elevation, Emigration, and Destiny of the Colored People of the United States, (no publisher listed), Philadelphia, 1852 at 3. [13] Leon F Litwack, North of Slavery: The Negro in the Free States, 1790-1860, University of Chicago Press, 1961 at 75. [14] Hobbs v Fogg, 6 Watts 553 (1837). [15] Quoted in Andrew Delbanco, The War Before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War, Penguin Press, 2018 at 130. [16] Frederick Douglass, "The Meaning of July Fourth for the Negro", 5 July 1852, in Philip S Foner (ed), Frederick Douglass: Selected Speeches and Writings, Lawrence Hill Books, 1999 at 194. [17] Dred Scott v Sandford, 60 US 393, 411 (1857). [18] Robert G Parkinson, Thirteen Clocks: How Race United the Colonies and Made the Declaration of Independence, University of North Carolina Press, 2021 at 184.