Some posts on a lawprofs’ discussion list led me get a copy of Behrens, Uggen & Manza, “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002,” which claims that many laws barring felons and ex-felons from voting were motivated by a desire to diminish the number of black voters.
It may well be the case that this was indeed the motivation behind some such laws; I’m told there’s pretty solid evidence for that. Nonetheless, I was wondering about some particular items that the articles cited, and I wonder whether there are any experts on antebellum election laws in the South who might help me with this.
The article lists, for each state, the year in which the state’s first felon disenfranchisement law was supposedly passed. Many such laws — for instance, in Delaware, Kentucky, Louisiana, Maryland, and Virginia (for the rest of this post I focus only on the slave states, chiefly because I lacked the time to check for all states) — were first enacted before the Civil War. Since at the time blacks could be and were often disenfranchised simply based on their race, presumably the disenfranchisement of felons didn’t have to do with race.
According to the article, many the laws were indeed enacted in the South right after the Civil War, so that’s consistent with the theory that they were motivated by a desire to disenfranchise blacks. But the article also has an intriguing footnote alongside many such laws, stating that “The first state constitution gave the state legislature the power to restrict suffrage for criminal activity.”
According to the article, Alabama, Florida, Missouri, and Texas (of the slave states) fall into this category. The article seems to erroneously omit such a footnote as to Mississippi, which it turns out also fell into this category (see Miss. Const. 1817, art. VI, sec. 5). It also doesn’t note that Tennessee had a similar provision in its 1834 Constitution, though not in its original constitution. It also doesn’t note that the South Carolina Constitution of 1865, which explicitly disqualified blacks as voters, also gave the legislature the power to “impose disqualification to vote as a punishment for crime.” This suggests that the drafters of that particular constitution saw disqualification of felons as valuable itself, independently of its effect on blacks voters. (I understand why the authors of the article may have omitted this, but it still seems worth noting.)
Now here is what puzzles me: The earlier Alabama, Florida, Mississippi, and Texas constitutions not only gave the legislature such power, but actually seemed to order the legislature to deny ex-felons the vote: “Laws shall be made by the general assembly to exclude from office, and from suffrage, those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see also Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, art. VI, sec. 5; Texas Const. 1845, art. VII, sec. 4.) Only the Missouri Constitution of 1820 (art. III, sec. 14) and the Tennessee Constitution of 1834 (art. IV, sec. 2) spoke of legislative discretion (“The general assembly shall have power to exclude . . . from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime,” to quote the Missouri provision).
So my main question: Did the Alabama, Florida, Mississippi, and Texas legislatures indeed fail to comply with the constitutional command until after the Civil War, and did the Missouri and Tennessee legislatures fail to exercise their powers?
And a supplementary question: The 1835 amendments to the North Carolina Constitution, sec. 4, part Four, say that the legislature “shall not have power to pass any private law . . . to restore to the rights of citizenship, any person convicted of an infamous crime; but shall have power to pass general laws regulating the same.” This suggests that felons might have lost the vote by having more generally lost the rights of citizenship, even before the Civil War (the Behrens et al. article lists the first felon disenfranchisement law as 1876, but I wonder whether this might therefore be mistaken). State v. Surles, 230 N.C. 272 (1949), notes that in 1854 the North Carolina legislature in fact passed a law providing for a procedure for restoring the rights of citizenship, but doesn’t specifically discuss the right to vote. Might North Carolina have in fact disqualified felons from voting before the Civil War?
These turn out to be important questions to the debate about whether some, many, or most felon disenfranchisement laws were originally intended to disproportionately burden blacks, since such a motivation might render them unconstitutional. If you know about antebellum election laws, and thus know the answers to these questions, please e-mail me at volokh at law.ucla.edu. (I’m not planning to blog on the entirely separate question of whether felon disenfranchisement is good policy; right now, I’m just curious about when the statutes were first enacted in the states I identify.)
UPDATE: The post originally said that the 1865 South Carolina was a proposed constitution; it appears, though, that it was indeed enacted, though without popular ratification.
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