Defying Disfranchisement

Black Voting Rights Activism in the Jim Crow South, 1890-1908

R. Volney Riser

• Publisher: LSU Press
• Year: 2010
• Print ISBN: 9780807136386
• eBook ISBN: 9780807146071
• Topic: Historia
• Subtopic: Historia de Norteamérica

In the late nineteenth and early twentieth century, Jim Crow strengthened rapidly and several southern states adopted new constitutions designed primarily to strip African American men of their right to vote. Since the Fifteenth Amendment to the United States Constitution prohibited eliminating voters based on race, the South concocted property requirements, literacy tests, poll taxes, white primaries, and white control of the voting apparatus to eliminate the region's black vote almost entirely. Desperate to save their ballots, black political leaders, attorneys, preachers, and activists fought back in the courts, sustaining that resistance until the nascent NAACP took over the legal battle.In Defying Disfranchisement, R. Volney Riser documents a number of lawsuits challenging restrictive voting requirements. Though the U.S. Supreme Court received twelve of these cases, that body coldly ignored the systematic disfranchisement of black southerners. Nevertheless, as Riser shows, the attempts themselves were stunning and demonstrate that African Americans sheltered and nurtured a hope that led to wholesale changes in the American legal and political landscape.Riser chronicles numerous significant antidisfranchisement cases, from South Carolina's Mills v. Green (1985), the first such case to reach the Supreme Court, and Williams v. Mississippi, (1898), the well-known but little-understood challenge to Mississippi's constitution, to the underappreciated landmark Giles v. Harris—described as the "Second Dred Scott" by contemporaries—in which the Court upheld Alabama's 1901 state constitution. In between, he examines a host of voting rights campaigns waged throughout the country and legal challenges initiated across the South by both black and white southerners. Often disputatious, frequently disorganized, and woefully underfunded, the antidisfranchisement activists of 1890--1908 lost, and badly; in some cases, their repeated and infuriating defeats not only left the status quo in place but actually made things worse. Regardless, they brought attention to the problem and identified the legal questions and procedural difficulties facing African Americans.Rather than present southern blacks as victims during the roughest era of discrimination, in Defying Disfranchisement Riser demonstrates that they fought against Jim Crow harder and earlier than traditional histories allow, and they drew on their own talents and resources to do so. With slim ranks and in the face of many defeats, this daring and bold cadre comprised a true vanguard, blazing trails that subsequent generations of civil rights activists followed and improved. By making a fight at all, Riser asserts, these organizers staged a necessary and instructive prelude to the civil rights movement.

1
We Must Either Fight or Submit
Phase One Begins

We must either fight or submit.
—Beaufort (S.C.) New South, March 7, 1895

Robert Sproule had campaigned hard to be Warren County, Mississippi’s tax assessor, but when officials opened the ballot boxes and tallied the results of the 1892 county election, his opponent, R. A. Fredericks, prevailed by eight votes. Whispers flew furiously. Something was rotten in the Brunswick precinct. Seventy votes were cast there and all had an X by Fredericks’s name. Apparently, many of those came from illiterate blacks. Col. B. G. Kiger, who supervised Brunswick, was later charged by Sproule of marking those ballots for Fredericks and colluding with his fellow precinct officials in depositing them in the Democratic ballot box. Sproule believed that a total of forty-one fraudulent ballots had been cast at Brunswick, but he proffered only seventeen as evidence. The other twenty-four did not matter; striking just those seventeen would guarantee Sproule a nine-vote victory.¹

This was postdisfranchisement Mississippi, a place where black men’s votes were not supposed to decide elections and where no illiterate men of any complexion were supposed to vote. Yet in Warren County black men’s votes had just decided an election and at least forty-one illiterates had apparently cast ballots at one backwater precinct. That meant that disfranchisement’s meaning and scope remained contested, and if those things remained unsettled, if what had happened at Brunswick proved to be in any way permissible under the new state constitution, it also meant that black Mississippians might yet mount a counterattack, or at least retain a political foothold in the face of the new constitution’s restrictions and prohibitions.

For his part, Robert Sproule believed that Mississippi’s 1890 constitution—the first of the disfranchisement constitutions adopted in the Jim Crow era—had settled things and that by helping illiterate men mark their ballots (or even letting them into the polling place), Colonel Kiger had defied the 1890 constitutional convention’s clear intent. Sproule refused to stand aside quietly and let Fredericks have the office. He lawyered up, collected his evidence, and marched into court. In time, this gave rise to the first judicial examination of one of the southern states’ disfranchisement constitutions.

Sproule’s lawyer, state representative Lawson Magruder, had witnessed both disfranchisement’s conception and birth. He was a member of the 1890 Mississippi legislature, which had approved a constitutional convention, and then was elected to the convention as an at-large delegate and helped disfranchise the state’s blacks and poor whites. Democratic leaders—and Magruder was among them—billed disfranchisement as a miracle elixir, an antidote for elections fraud, ensuring that thenceforth only the best men (i.e., the best white men) would vote. The enfranchisement of the “negro race,” convention president Solomon S. Calhoon reminded Magruder and the other delegates after they completed their work, had brought “stagnation, the enslavement of woman, the brutalization of man, animal savagery, [and] universal ruin.” Calhoon was preaching to the choir. Mississippi’s constitution made all of those things right, delegate after delegate proudly boasted. Mississippi was the first state to attempt such a thing—the effective nullification of the Fourteenth and Fifteenth Amendments—and more than one politician, and a host of editors and observers, doubted that it would work. They insisted that Mississippi would surely face congressional and federal judicial wrath for the violence they had done to the U.S. Constitution. But they need not worry, Calhoon reassured them. In closing the registration books to African Americans (or “the negro,” as he always put it), they did so “with his full cooperation, and with his rights and franchises, as guaranteed by the organic Federal Compact, not only unimpaired, but fully protected.” Calhoon’s postmortem was transparent sophistry, a puerile and ludicrous confection, but it was exactly what Magruder and the others needed and wanted to hear and believe.²

The 1890 Mississippi constitution ensured, Magruder, Sproule, and nearly all other white Mississippians understood, that black men’s votes would no longer decide elections—not because black men had voted freely before but because white partisans had always manipulated black men’s votes as they saw fit. The situation had degenerated completely by the late 1880s, and the 1890 constitution was advertised as a corrective measure. With its adoption, Democratic victories would not require on-the-fly tricks, the mutilation of ballots, and ballot box molestation. Instead, elections registrars would handle all of the dirty work. They could register or dismiss whomever they chose.

The registrars’ wide authority was derived from what the 1890 constitution had not said; the convention had not said exactly what the registrars could and could not do and who they could or could not register. The idea was to eliminate the old-time methods but not to outlaw them per se. Thus the voting provisions in Mississippi’s 1890 constitution were opaque—at once detailed and vague—and again, this was deliberate. Any explicit proscriptions would likely have brought them into open conflict with the Fourteenth and Fifteenth Amendments to the U.S. Constitution. However, and despite all of this, seventeen illiterate black men had somehow tipped an election in R. A. Fredericks’s favor and his opponent, Robert Sproule, was a sore and angry loser and sued him.³

The 1892 election was the first held under the new state constitution, but even so, Mississippi blacks were slow to react. There had been no widespread protests during the 1892 voter registration period, during the election, or in the election’s aftermath. This was not just apathy; there were real reasons for Mississippi blacks’ apparent nonresponse. For one, disfranchisement was incomplete in Mississippi. What happened at the Brunswick precinct demonstrated as much. Further, blacks continued to win Mississippi elections in the 1890s (though with as much frequency as angels’ visits), they continued to register, and some sizable number actually voted, all of which undercut sweeping arguments that the 1890 constitution violated the U.S. Constitution. That would change in a few years’ time, when Mississippi blacks tried to mobilize for an antidisfranchisement fight. In the immediate short term, it remained to be seen what Mississippi courts might do with Sproule and Fredericks and what that might mean for black Mississippians.

The case moved rapidly through the county circuit court and then on to the state supreme court. At trial in Vicksburg, Warren County’s seat, Fredericks insisted that the Brunswick elections officers had done no more than what the new constitution permitted. The circuit court judge ruled in his favor. The judge also excluded Sproule’s evidence of fraudulent ballots, and Sproule appealed to the Mississippi Supreme Court. Magruder repeated Sproule’s original claims before the state supreme court and revisited the 1890 constitution’s framing and adoption. There was a great deal of “gray” in the Mississippi constitution, and that was no accident. Elections officers had to have virtually unfettered authority to achieve what Mississippi’s constitution could not state expressly: Black men’s votes would not decide elections. But unfettered authority was just that—unfettered. It could work either way. Though the constitution prescribed a literacy test, it fixed no literacy standard. “Literacy,” according to the 1890 constitution, was left so vague as to be meaningless and thus meant whatever any particular registrar, on any particular day, said it meant. Further, the 1890 constitution allowed any man who “understood” the privileges and nature of citizenship to register to vote. Then there was a provision that allowed elections officials to “assist” voters in the preparation and deposit of their ballots. These were all designed to give the appearance of allowing illiterate whites to register (and thus temper white opposition to the new constitution), but they could also be used by illiterate blacks. That appeared to have happened at the Brunswick precinct.⁴

Though it cannot but seem humane to have an official on hand to aid voters, that is not why Mississippi or any other southern state allowed (or forbade, in some cases) such assistance. Rather, “assistance” was just the door through which Democratic Party ballot thieves entered the polling place. They purchased or stole illiterate black men’s ballots and marked them per the highest bidding candidate’s instruction. Southern elections, as novelist John Henry Wallace described them in The Senator from Alabama, his fictionalized account of a disfranchisement era campaign, typically devolved into a “Carnival of the Ballot Box Stuffers.” In Wallace’s melodrama, Democratic operatives were “vampires that grew fat and slick as they smacked their lips and licked their gory chops,” and through their frenzied manipulation of the ballot boxes, they “drank the life blood of all that was noble, grand and patriotic in the Democratic party.” Black southerners also noted the presence of thieves. Ned Cobb, son of a black Alabama sharecropper, later recalled in his pseudonymous autobiography All God’s Dangers that before his father was disfranchised, the old man had always sold his vote. Whites had not wanted the elder Cobb to be an informed citizen and did all they could to keep him ignorant and pliant and easily bought. “He was kept out of the knowledge of knowin,’” his son recalled, “so that he would want to sell his vote because that was the only advantage he could get from votin.’” Other black men just wanted to make sure that no one thought that they had ever done such a thing. Louis Hamilton, a ninety-year-old former slave in Fredericktown, Missouri, told a 1930s Works Progress Administration (WPA) interviewer that no one had ever tried to keep him from voting, that he had cast his first vote for Theodore Roosevelt, and that “I been voting ever since.” He was proud of his record and made it clear that the historical record showed that he had resisted the temptations of ballot fraud artists. “Lots of dem have told me how to vote,” Hamilton continued, “but I never sold my vote.”⁵

Mississippi’s constitutional framers talked a lot about elections fraud, but fraud per se was not why they had holed themselves up in the stuffy, sweltering statehouse in Jackson in the late summer of 1890. Cleaning up elections would have required only that state officials crack down on the graft and violence that blighted elections in the black majority counties. But clean elections would be fair elections, and if Mississippi elections were fair, blacks would likely command a near-majority of state legislative seats. Instead, the disfranchisers would regulate the foul work of carrying elections for the Democracy. They could have attempted some sort of statutory revision, but they wanted something more permanent, something that would not be left in the hands of popularly elected sheriffs and state officials. Thus they chose to reform state elections through constitutional revision, altering the terms of state citizenship.

Some other southern states limited black voting rights through statutory revision, and it is common to view these efforts as part of the disfranchisement movement, even if they were not technically the same thing. Those statutory revisions were simply impediments and altered no fundamental right. Further, they typically targeted the conduct of elections rather than individual voters. Tennessee was the leader in this regard, and that state’s Dortch Law targeted anyone who offered “assistance” to illiterate, ill-informed, or confused voters in the state’s four urban counties.

The Dortch Law faced a Tennessee state supreme court challenge one year before Sproule v. Fredericks. Tennessee’s Dortch Law, just as with Mississippi’s 1890 constitution, also faced its first legal challenge courtesy of a white man. Julius Cook, a white man and a purported ballot thief, was indicted and prosecuted for marking the ballots of several illiterate white voters at the 1890 congressional election in Memphis. Cook challenged his indictment on grounds that the Dortch Law violated both the Tennessee state constitution’s and the Fourteenth Amendment’s privileges and immunities and equal protection clauses. Both Cook and his attorney understood and even alluded to the fact that the law targeted illiterate blacks. The Dortch Law only applied to the four counties that contained the state’s four major cities—Shelby (Memphis), Hamilton (Chattanooga), Davidson (Nashville), and Knox (Knoxville)—which were home to most of Tennessee’s black residents. Still, Cook’s counsel paid relatively little attention to the racial motive behind the law. Instead, he emphasized the constitutional rights of illiterate men. Cook was a white man, after all, accused of marking ballots for other white men. In any event, the Tennessee Supreme Court was not impressed and sustained Cook’s conviction.⁶

Like Tennessee’s legislators two years earlier, Mississippi’s disfranchisers talked a good game about reining in graft, and all of this emerged before the state supreme court. Unlike their Tennessee counterparts, however, they did not bother with the pretense of outlawing ballot fraud. They targeted blacks more directly, though they could not express that in terms without violating the Fourteenth and Fifteenth Amendments to the U.S. Constitution. This led them to adopt a literacy test and their infamous understanding clause, devices that let registrars exclude black voters and include whites however and whenever they saw fit.

The ministerial discretion that the Mississippi constitution allowed, Magruder and Sproule insisted, had been abused at the Brunswick precinct. The alleged rot, Fredericks countered, was permissible according to the 1890 constitution’s text. What had happened, Magruder maintained, violated the spirit of its framers. He demanded that the state supreme court construe the constitution in light of its framers’ promises and, unlike in the Tennessee case, confronted the convention’s racial considerations squarely. The 1890 constitution provided leeway for the registrars as a way for them to admit more whites and exclude more blacks. This had been no secret, so “who can deny,” Magruder’s brief asked, that its purpose was to “relieve the white intelligent race . . . from the danger of ignorant . . . unlettered rule?”—unlettered and black rule, to be more precise. The 1890 constitutional convention had promised to discriminate against African Americans—Lawson Magruder was part of that promise, after all—and Sproule was determined to redeem that guarantee.⁷

That this case ever arose at all is remarkable, but it took a bizarre turn with Fredericks’s reply. He could not defeat Sproule’s evidence and did not bother to try. Instead, he lobbed a bombshell: The 1890 constitution was invalid. The constitution had never been ratified by the people of Mississippi, and, he continued, the convention’s disfranchising efforts violated the 1870 congressional act readmitting Mississippi to the Union, which required that the state maintain a republican form of government (a primary of feature of which is a written constitution). Thus Mississippi’s first disfranchisement case became its very first antidisfranchisement case as well, albeit far different from what we might have expected.⁸

R. A. Fredericks surely cared little about black voters beyond their capacity to supply him with pliant votes, yet the effect of his argument might have worked—temporarily—in their favor. Still, Fredericks’s claim amounted to a desperate, victory-saving gambit, and Mississippi’s unimpressed state supreme court justices swatted it away. “With confidence,” Justice Woods wrote, the court rejected his assertion as “unsound.” Fredericks’s counsel argued that the constitution was invalid because it had not been ratified, an assertion that the justices considered “imaginary and fanciful.” Then he argued that the constitution violated the 1870 readmission act, and the justices disposed of that as “manifestly untenable.” Suffrage, they intoned, was the exclusive province of the states. Having made short work of Fredericks’s stunt, the justices considered Sproule’s evidence. It seemed persuasive, they agreed, it was certainly germane, and the trial judge should have allowed it. They reversed the lower court judge and remanded the matter. They did not examine the framers’ intent, the constitution’s purpose, or the questions surrounding those seventeen ballots. With that, disfranchisement’s courtroom debut ended. It passed so quickly that almost no one noticed.⁹

The first two elections cases of the disfranchisement era had been initiated by competing white men arguing over what one another had or had not helped ostensibly disfranchised black men do. That is not what we would expect to find; that is not what we would want to find; but that is what happened. As matters of law, Sproule v. Fredericks and Cook v. State were of little consequence. As historical artifacts, however, both are instructive. This is not because they are necessarily instructive but rather because of the questions they raise, questions about why no African American plaintiffs had yet filed suit and whether blacks would or even could marshal a response.

Blacks simply were not prepared to make a fight when Tennessee amended its state statutes to restrict black voting in 1889 and when Mississippi imposed disfranchisement via its 1890 constitution. Many may not have recognized or understood the need. Stunned by what was happening, Mississippi’s black community reacted slowly. And then once they did react, they found that they did not necessarily know how to make a fight. No one, actually, whether white or black, would have known how to do this. Voting rights activism of the kind needed here, voting rights litigation, and the broader field of civil rights pro...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Prologue: April 27, 1903
• 1. We Must Either Fight or Submit: Phase One Begins
• 2. If Thine Eye Be Evil: The Road to Williams v. Mississippi
• 3. The Grandfather Clause: Phase Two Begins
• 4. Negroes Have Organized: Alabama’s Disfranchisers, Black Activists, and the Courts
• 5. An Appeal to the Colored Citizens of Alabama: Registration and Resistance
• 6. The Enemies’ Works: The Alabama Cases Begin
• 7. Swords and Torches: The Virginians Enter the Fray
• 8. The Second Dred Scott Case: Giles v. Harris Is Decided
• 9. The Banner Negroes: Fighting to the End
• Acknowledgments
• A Note on Sources
• Notes
• Index