Tuesday, December 30, 2014

The Mississippi Constitutional Coup of 1890 - Disenfranchising the Black Majority

Reminiscing about Morton Stavis - a mentor of mine - I came across his brilliant history of the virtually complete disenfranchisement of Black voters in Mississippi via the 1890 Constitutional coup.Black people were a majority of the population in the state - and of the voters.  They were soon reduced to 5% by means such as the poll tax and locally administered tests of comprehension of the U.S. Constitution!  

In WILLIAMS v. STATE OF MISSISSIPPI, 170 U.S. 213 (1898) the United States Supreme Court upheld the conviction of Henry Williams.  He challenged the fairness of his trial because black people had been excluded from the voting rolls of Mississippi by the Constitution of 1890 which was not put to a vote because at the time Black voters were a substantial majority.  The next election began promptly with 92% of Black voters disenfranchised. The U.S. Supreme Court saw no problem because the Constitution was non-racial on its face.  Everyone had to pay a poll tax, everyone had to "be able to read any section of the constitution, or he shall be able to understand the same" and everyone had to be free of  the taint of a criminal conviction.

The defendant Williams argued:
Section 244 of the constitution requires that the applicant for registration, after January, 1892, shall be able to read any section of the constitution, or he shall be able to understand the same (being any section of the organic law), or give a reasonable interpretation thereof. Now, we submit that these provisions vest in the administrative officers the full power, under section 242, to ask all sorts of vain, impertinent questions; and it is with that officer to say whether the questions relate to the applicant's right to vote. This officer can reject whomsoever he chooses, and register whomsoever he chooses, for he is vested by the constitution with that power. Under section 244 it is left with the administrative officer to determine whether the applicant reads, understands, or interprets the section of the constitution designated. The officer is the sole judge of the examination of the applicant, and, even though the applicant be qualified, it is left with the officer to so determine; and the said officer can refuse him registration.'
 The U.S.Supreme Court was unperturbed.  They saw no evidence that those who selected jurors discriminated on the basis of race.  And the  bar on voters who had been convicted of crime also left them unperturbed.  The Court relied on and quotes at length the Mississippi Supreme Court  in Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 867-68 (1896)
'By reason of its previous condition of servitude and dependencies, this [Negro] race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from the whites; a patient, docile people, but careless, landless, migratory within narrow limits, without forethought, and its criminal members given to furtive offenses, rather than the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminates against its characteristics, and the offenses to which its criminal members are prone.' 
The U.S. Supreme Court explains:
But nothing tangible can be deduced from this. If weakness were to be taken advantage of, it was to be done 'within the field of permissible action under the limitations imposed by the federal constitution,' and the means of it were the alleged characteristics of the negro race, not the administration of the law by officers of the state. Besides, the operation of the [Mississippi] constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.
Thus prompted to read Ratliff I found this remarkable historical analysis, a shameless tale of disenfranchisement of the majority - the Black majority in the state:
Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. 
The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise. The habitual disregard of one law not only brings it finally into contempt, but tends to weaken respect for all other laws. The most dangerous and insidious form in which this evil can exist is that which manifests itself in the disregard of public rather than private right, for not only are the consequences more widely diffused, and less rapidly eradicated, but, because no particular right of individuals is directly involved, resistance is less prompt, and the evil progresses to dangerous proportions before its existence is noted. 
Not only was the question of the franchise a most difficult one for solution by reason of its nature, but there was added to its treatment the limitations upon state action imposed by the amendments to the federal constitution. The difficulty, as all men knew, arose from racial differences. The federal constitution prohibited the adoption of any laws under which a discrimination should be made by reason of race, color, or previous condition of servitude.It would too much extend the volume of this opinion to enter upon a review and examination in detail of all the provisions of our recent constitution in which the subject of the electoral franchise, and its cognate one of the selection of governmental agencies, is dealt with. We deal with so much only as is necessary to a determination of the question involved. He who reads the constitution of 1869 and that of 1890 will have his attention arrested by the marked difference in the number and character of the provisions upon the franchise, and the selection of the chief magistrate of the state. The constitution of 1869, in its single article on the franchise (section 2, art. 7), provided simply that
 “all male inhabitants of this state, except idiots and insane persons and Indians not taxed, citizens of the United States, or naturalized, 21 years old and upward, who have resided in this state for six months and in the county one month next preceding the day of election at which said inhabitant offers to vote, and who are duly registered according to the requirements of section 3 of this article, and who are not disqualified by reason of any crime, are declared to be duly-qualified electors.” 
The governor and other state and county officers were under this constitution selected by popular election. The corresponding article in the constitution of 1890 (section 241) is as follows:
“Every male inhabitant of the state, except idiots, insane persons, and Indians not taxed, who is a citizen of the United States, 21 years and upwards, who has resided in the state for two years and one year in the election district, or in the incorporated town or city in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid on or before the first day of February of the year of which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but every minister of the gospel in charge of an organized church shall be entitled to vote after six months' residence in the election district if otherwise qualified.”

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