The Right to Vote Read online

  One cluster of legal changes involved the physical act of voting. At the nation’s founding, the concrete procedures for voting varied widely from state to state and even from town to town. In some locales, particularly in the South, voting was still an oral and public act: men assembled before election judges, waited for their names to be called, and then announced which candidates they supported; in one variant of this process, common in Virginia, men inscribed their names in a poll book underneath the name of the candidate they preferred. Elsewhere, state constitutions or statutes required that voting be conducted by written ballot, to protect voters against intimidation. By the mid-nineteenth century, nearly all states insisted that votes be cast through written ballots, placed in a box or handed to an official. As the number of offices to be filled through elections grew, printed ballots gradually replaced handwritten ones, and political parties themselves began to prepare printed ballots, both to assist and monitor their voters. Abuses of this system were (sometimes) checked by the passage of laws requiring all ballots to be of uniform size and color or by insisting that ballots be placed in envelopes before being deposited. Not surprisingly, the laws governing such procedures were often the subject of partisan wrangling.3

  Other legal developments were essentially administrative, reflecting a need to translate broad precepts into detailed rules governing the conduct of elections. Most states, for example, had to define what it meant to be a resident or inhabitant. They had to decide how and when lists of eligible voters would be assembled, what documents had to be presented as proof of citizenship, and how challenges to a voter’s eligibility should be handled. Some state legislatures also had to specify the ways in which a personal property requirement could be met: Did a promissory note count as personal property? Similarly, race had to be given an operative definition. Just how white did you have to be in order to vote? One-half, three-quarters? An increasingly voluminous body of law offered answers to such questions.4

  Far more significant were the substantive changes in voting requirements that marked the era, particularly those that lowered economic barriers to voting. Between the end of the American Revolution and the beginning of the Civil War, the economic and class lines that had so clearly circumscribed the electorate in the eighteenth century became blurred, even indistinct. The sources of this important shift were complex and need to be probed—but first, a brief chronicle of the events.

  The property qualifications for suffrage that had begun to erode during the revolution were gradually dismantled after 1790. (See Tables A.2 and A.3.) Delaware eliminated its property requirement in 1792, and Maryland followed a decade later. Massachusetts, despite the eloquent opposition of Adams and Daniel Webster, abolished its freehold or estate qualification in 1821; New York acted in the same year. Virginia was the last state to insist on a real property requirement in all elections, clinging to a modified (and extraordinarily complex) freehold law until 1850. And North Carolina finally eliminated its property qualification for senatorial elections in the mid-1850s.5 Alongside these developments was another, of equal importance: none of the new states admitted to the union after 1790 adopted mandatory property requirements in their original constitutions. 6 By the end of the 1850s, only two property requirements remained in force anywhere in the United States, one applying to foreign-born residents of Rhode Island and the other to African Americans in New York.

  Yet the demise of property requirements was not identical to the eradication of economic qualifications. Several states had taxpaying requirements even in 1790; a number of others instituted such requirements when they abolished property qualifications, and several of the new western states, including Ohio and Louisiana, also insisted that voters be taxpayers. Although taxpaying requirements were conceptually distinct from property qualifications (paying a tax demonstrated one’s membership in a community but not one’s Blackstonian independence), they nonetheless preserved the link between a person’s financial status and his right to vote. Moreover, depending on the size and nature of the tax, these requirements could keep substantial numbers of voters from the polls; ironically, the barrier was lowest in those states that had a regressive (but usually insubstantial) poll tax on all household heads.

  The democratic momentum that overwhelmed property requirements, however, also undermined taxpaying qualifications. Between 1830 and 1855, six states relinquished their insistence that voters pay taxes, leaving only six others with taxpaying clauses, several of which were quite minimal. By 1855, thus, there were few formal or explicit economic barriers to voting. (See Tables A.2 and A.3.)

  This broadening of state voting requirements was paralleled by changes both in federal policy and in municipal voting laws. In 1808, Congress modified the property qualifications in the Northwest Ordinance; three years later it acted more decisively, enfranchising all free white males who had paid taxes and resided in the territory.7 Subsequent acts of territorial organization for other regions generally permitted either taxpayer or white male suffrage.8 Similarly, congressional enabling acts (authorizing territories to become states and to hold constitutional conventions) became increasingly liberal in their suffrage provisions. Representatives to the constitutional conventions of Ohio (1802) and Indiana (1816) were chosen by adult male citizen taxpayers who met a one-year residence requirement; Illinois in 1818 did not even insist on a taxpaying qualification, and several decades later, all free white male inhabitants of Michigan (1835) and Wisconsin (1846) were able to participate in the founding elections.9 The franchise in the District of Columbia followed a similar path: a taxpaying requirement, adopted in 1802 when the city was first incorporated, was dropped in 1855.10

  The patterns of change in municipal voting laws were more variegated. Differences between state and city (or town) voting requirements persisted into the nineteenth century, sometimes as a legacy of colonial practices but more often because individual locales wanted to control the entry portals into their political communities. In some cities and towns, municipal suffrage laws were more liberal than those in force for state elections, as had been true in the late eighteenth century. In Massachusetts, for example, male citizens who were “liable to be taxed” remained able to vote for town officers despite the property qualification that applied to state elections until 1820.11 New Jersey’s laws were similar, while numerous towns and counties in Mississippi, including Greenville, Holmesville, and Shieldsborough, simply ignored the state taxpaying requirement and granted the suffrage to all “citizens of the town.”12

  More often, the eligibility gap was reversed: in contrast to the eighteenth-century pattern, cities and towns that had their own franchise requirements during the first half of the nineteenth century tended to have relatively strict eligibility rules. This was true not only in cities such as New York, where property qualifications were a holdover from colonial charters, but also in new municipalities such as Chicago, which, in its first charter (1837), enfranchised taxpayers only—even though Illinois did not have a taxpaying requirement.13 Comparably strict suffrage requirements could be found in all the towns of Maine and Tennessee, in Milwaukee, Louisville, St. Louis, Memphis, Richmond, and Petersburg, Virginia; some municipalities (in Alabama and Indiana, among other places) even adopted freehold requirements.14 The relative stringency of these municipal laws was generally justified by the increasingly widespread notion that the distinctive responsibility of local government was financial administration—from which it seemed to follow that only those who contributed to the municipality’s finances ought to elect its officials. As novelist James Fenimore Cooper put it in 1838, “towns and villages regulating property chiefly, there is a peculiar propriety in excluding those from the suffrage who have no immediate local interests in them.”15

  Still, the most significant trend affecting municipal elections was the convergence of state and local eligibility requirements. Almost everywhere, between 1790 and the 1850s, state suffrage laws and municipal suffrage laws became identical. Behind this co
nvergence were two important, and related, shifts in law. The first was the early nineteenth-century deterioration and then collapse of the notion that municipal charters were inviolable. The second was the ascent of a broad concept of state supremacy, the idea that municipalities legally ought to be regarded as administrative creatures of the state, rather than as separate sovereignties of any type. This second notion became known in the late nineteenth century as Dillon’s rule (thanks to the exhaustive and pioneering scholarship of jurist John Dillon), but it was already well established in American law before the Civil War.16 One of its implications was that state legislatures could set the franchise in municipal elections and compel cities and towns to adopt the same suffrage provisions as the state.17

  Which is exactly what state legislatures did, sometimes for partisan reasons, sometimes for the sake of principle—and usually because they were asked to intervene by the disfranchised residents of cities. Pennsylvania’s legislature altered the franchise in Philadelphia in 1796; New York State overrode New York City’s charter in 1804; the state legislature in Missouri broadened the St. Louis franchise in the 1840s; and Virginia finally brought Richmond into line in the 1850s.18 Although the idea persisted that municipalities had to perform special tasks that might warrant special suffrage requirements (Michigan adopted separate rules for school elections as early as 1837), there was a presumption, by the 1850s, that state suffrage regulations would and did apply to all elections.19

  In some states, the right to vote also was broadened along axes that were not economic or financial. Almost everywhere states tinkered with their residency rules, which had become increasingly salient once property qualifications had been eliminated. In several states, including Delaware, Pennsylvania, South Carolina, Indiana, and Michigan, residency requirements were shortened, opening the polls to large numbers of migrants who previously had been barred.20 In Ohio, widespread migration led to a shift in the entire conceptual underpinning of residency rules, increasing the weight given to an individual’s right to vote while limiting the power of communities to decide who their official residents were.21

  Far more dramatic, and perhaps surprising, was the extension of the franchise to aliens—although the history of alien (i.e., noncitizen) voting was anything but unidirectional. At the end of the eighteenth century, the line separating citizens from aliens was not clearly or consistently drawn, either in law or in practice.22 Some state constitutions specified that voters had to be citizens, while others conferred the franchise on “inhabitants”; the federal government, hoping to encourage settlement, expressly permitted aliens to vote in the Northwest Territories.23 Thus in many locales, foreign-born men who had not been naturalized by the federal government but who did meet property, taxpaying, and residence requirements were able to participate in elections.24

  The status of aliens was in flux, however. The federal government changed the procedures and qualifications for naturalization every few years, settling on a durable formula only in 1802, when Congress declared that any foreign-born white male who met a five-year residency requirement could become a citizen three years after formally announcing his intention to do so.25 In addition, the distinction between citizens and inhabitants became the subject of litigation in Ohio, Illinois, and other jurisdictions.26

  Between 1800 and 1830, numerous states opted to clarify ambiguous wording in their constitutions to protect themselves against a perceived or potential influx of (undesirable) foreign-born voters. While revising their constitutions, New York, Massachusetts, Connecticut, Vermont, Maryland, and Virginia all replaced “inhabitant” with “citizen”; New Jersey performed the same alchemy by statute.27 (New Jersey seemed uniquely cavalier about altering suffrage qualifications by statute rather than constitutional amendment.) Not surprisingly, the western states followed suit: almost all of the new states joining the union between 1800 and 1840 conferred the right to vote exclusively on citizens.28 (The one exception was Illinois, which permitted aliens to vote for several decades after the state was organized in 1818.) By the Jacksonian era, aliens were barred from the polls nearly everywhere. (See Table A.4.)

  Then the pendulum swung back, particularly in the Midwest. Although Illinois by a narrow vote decided to limit the franchise to citizens in 1848, other states in the upper Midwest moved in the opposite direction. Wisconsin was the pioneer, adopting in 1848 what became known as “alien intent” or “declarant non-citizen” suffrage: building on the two-step structure of the naturalization laws, the franchise was extended to aliens who had lived in the United States for two years and who had filed “first papers” declaring their intention to become citizens.29 Not coincidentally, the population of Wisconsin in 1850 was 35 percent foreign born, the highest of any state.30 Michigan and Indiana soon passed similar laws, as did the federal government for the territories of Oregon and Minnesota.31 In the late 1850s, Kansas, Minnesota, and Oregon all adopted alien suffrage, and after the Civil War a dozen more states in the South and the West did likewise (again joined by various territories administered by the federal government). Outside of the Northeast, declarant, noncitizen suffrage therefore became commonplace, permitting hundreds of thousands of previously excluded voters to go to the polls.32 Although the constitutionality of alien suffrage was heatedly debated in the mid-nineteenth century (opponents often claimed that states were usurping federal power by conferring the franchise on those who were not naturalized), state courts consistently upheld such provisions.33 In 1840, for example, the Illinois Supreme Court affirmed that the state’s constitution granted “the right of suffrage to those who, having by habitation and residence, identified their interests and feelings with the citizenry . . . although they may be neither native nor adopted citizens.”34

  Sources of Expansion

  It ought to be remembered, Sir, that manufacturers are rapidly increasing; and their employers may bring them in regiments to the polls.

  Sir, if they come in regiments to the polls to vote; they go in regiments to fight the enemies of their beloved country.

  —LEGISLATIVE DEBATE, CONNECTICUT, 1818

  Why was the franchise broadened—and broadened so dramatically? Why were property requirements jettisoned almost everywhere and taxpaying requirements abandoned in most states? Why were men who were not even citizens permitted to vote? Why, in sum, was the suffrage enlarged nearly everywhere in the United States, North and South, along the coast and inland?

  Not surprisingly, no single factor can explain this upsurge of democracy—not even a factor as capacious as Frederick Jackson Turner’s frontier. Although insightful, Turner’s famous vision of the frontier as a democratizing force cannot account for the relatively early democratization of much of the eastern seaboard.35 The much-celebrated broadening of the suffrage during the first half of the nineteenth century indeed was spawned not by one change but several, by the convergence of different factors, present in varying combinations in individual states. Among them were three important socioeconomic and institutional developments: widespread and significant changes in the social structure and social composition of the nation’s population; the appearance or expansion of conditions under which the material interests of the enfranchised could be served by broadening the franchise; and the formation of broadly based political parties that competed systematically for votes.

  Most fundamentally, perhaps, all of the states that had property requirements in 1790 witnessed an increase in the number and proportion of adult males who were unable to meet those requirements. Up and down the eastern seaboard, from Boston to New York to Baltimore to Richmond to Wilmington, North Carolina, the urban population grew rapidly, swelling the ranks of those who owned no real property and sometimes no property at all. Artisans, “mechanics,” laborers, even small merchants and shopkeepers—an increasingly large and prominent slice of the population of nearly all cities and large towns was disqualified for economic reasons.36 In some states, there was also an increase in the proportion of farmers who could
not meet property requirements—because they were tenants, their holdings were too small, or because of shifts in leaseholding patterns. In both northern Louisiana and western North Carolina, for example, the rapid growth of newly settled counties and parishes, dominated by small farms on just-cleared land, spelled a sharp increase in the population of ineligibles.37 A similar pattern resulted from the shift, in Virginia, from leases for life (which were counted as freeholds) to shorter-term leases (which did not).38 In the North, farm tenancy was on the rise, and in some locales, including upstate New York, farmers who purchased land through installment mortgages did not become eligible to vote until they had made their last payment and secured legal title to their lands.39 Meanwhile, in the West, the slow, cumbersome, and erratic process of gaining title to lands was preventing many settlers from voting.40 Swelling the ranks of the voteless in the North were hundreds of thousands of immigrants excluded by increasingly widespread citizenship requirements.

  These changes in the social structure created significant and growing clusters of men who were full participants in economic and social life but who lacked political rights. Not surprisingly, at times these ineligible citizens themselves exerted significant pressure to enlarge the franchise, particularly when they were concentrated in cities, neighborhoods, or distinct rural districts. Between 1790 and 1835, from the Southeast to Michigan, voteless men petitioned legislatures and constitutional conventions to broaden suffrage requirements. Maryland’s early decision to drop property qualifications was hastened by years of agitation by the propertyless residents (including many “mechanics”) of politically dominant Baltimore; in the 1840s, men who could not meet North Carolina’s senatorial freehold requirement held mass meetings to demand the right to vote in all elections, while German and Irish aliens petitioned for their own enfranchisement in Milwaukee.41 In Virginia, the War of 1812—which, according to historian J. R. Pole, “gave the greatest single stimulus to the movement for suffrage extension”—created conditions that accelerated such protests and gave them a patriotic cast. When gathered together to be mustered into the militia, men signed petitions affirming and protesting their disfranchisement. In a Shenandoah muster of 1,000 men, 700 claimed they could not vote; in Loudoun, the figure was 1,000 out of 1,200.42