The Disenfranchisement of African Americans

Migrants and Residents

Residency requirements were another important dimension to the franchise that took shape during this time period. As the pace of westward migration quickened, population mobility increased, and itinerant labor became more common, it became increasingly difficult to define what exactly it meant to be a resident of a particular place. States and localities worked to define rules and regulations to determine what constituted a resident for the purposes of voting. 

The shape these rules took was often the subject of conflict, but disputes related to residency were largely left up to the courts to resolve. Citizens challenged their exclusion from the polls under residency laws. These cases were made more complicated by the accepted legal notion that a person’s physical presence in a community for a specified length of time was not sufficient by itself for a person to be considered a resident. As the Supreme Court of Colorado put it in 1896: 

we think the residence…contemplated [by the constitution] is synonymous with “home” or “domicile,” and means actual settlement within the state, and its adoption as a fixed and permanent habitation; and requires not only a personal presence for the requisite time, but a concurrence therewith an intention to make the place of inhabitancy the true home. 

More and more, the idea of physical presence had to be accompanied by the intention of remaining in the community for what the courts called “an indefinite period,” in order to meet residency requirements. Intention, of course, could be difficult to ascertain or prove. The courts established legal precedents for how to deal with certain groups of individuals, such as ministers and railway workers, in order to apply broadly stated law to a wide variety of situations.

The injection of the idea of intention made legal residence harder to establish, especially for men whose occupations demanded mobility. Although the rules developed by state courts differed from one another, no jurisdiction questioned the legitimacy of statutes or constitutional amendments establishing residence qualifications—even lengthy ones—as a legitimate regulation of the right to vote. 

Absentee Voting

The implementation of residency requirements and the implied connection between physical presence and exercising the right to vote meant that states would need to consider mechanisms for absentee voting—to allow for men and women who were temporarily away from home, but still a member of a particular community to vote while they were somewhere else. Absentee voting was rare in the 19th century, particularly before the Civil War. But the desire to permit soldiers to vote drove more states to provide for absentee voting.  

World War I added a new urgency to the issue, as more than 3,000,000 men were deployed away from their homes for military service. Accordingly, by 1918, nearly all states had made provisions for absentee voting for soldiers away from home. 

The functional mechanism for absentee voting for soldiers opened the door for wider dispensation of the rest of the population, and by the end of World War I more than 20 states had provided for absentee voting on the part of anyone who could demonstrate a work-related reason—and in some cases, any reason—for being absent on election day. 

Voter Registration 

It was also between the Civil War and World War I that laws requiring pre-registering to vote—laws that seem very familiar to modern day voters. Before the 1870s, most states prepared a list of eligible voters, and beyond that no one was obliged to take any steps to establish their eligibility prior to election day. Voters might be required to bring naturalization papers, for instance, but all of that occurred at the polls themselves. 

Between the 1870s and World War I, however, the majority of states adopted formal registration procedures. The rationale for such regulations was straightforward: to eliminate fraud and to facilitate answering questions of eligibility, which could become disruptive when answered at the polls. It would facilitate the process greatly of checking papers, interrogate witnesses, and verify the qualification of those who wish to vote. 

The idea of pre-registration was more or less universally accepted. But as with any question, the requirements and implementation of registration procedures were hotly contested. Requirements varied widely from state to sate, as did their impact once they were implemented, which depended not only on the details of the laws themselves but also on the ability and determination of political parties to get their own voters registered. In New Jersey, for example, the passage of new registration laws in the early 20th century was immediately followed by a sharp decline in turnout. In other states however, the impact was negligible.  

Infamous Crimes

While revising other features of their electoral laws, many states extended the disfranchisement of felons and ex-felons following the Civil War. About 20 states had laws on the books that disenfranchised felons before the Civil War, and by 1920, almost every state barred serious criminals from the polls. Often disenfranchisement was for “infamous” crime, crimes that in common law prohibited their perpetrator from testifying in court. Of course, in the South, these measures often included lesser offenses that targeted African-Americans. 

In most states, though, these laws were passed without much discussion. There was great variation in the duration of the exclusion. It almost all states, felons were disfranchised while they remained in prison, but in many the disfranchisement was understood to be permanent, although it was possible in some places for or ex-felons to have their voting rights restored, usually by the governor. These laws were almost never objected to, and they were consistently upheld in the courts, which ruled that the states had both the right to disfranchise felons and a compelling interest in doing so.

Native Americans

After the Civil War, Native Americans continued to occupy a special place in American law and society. The vast majority of Native Americans were not citizens, and could become citizens only by treaty. Long the targets of resettlement programs that destroyed the way of life and stability, by 1900 there were less than 250,000 Native Americans in recognized tribes. The 14th Amendment had an interesting effect on Native Americans. Some interpreted the language: “all persons born or naturalized in United States, and subject to the jurisdiction thereof, are citizens of United States” to mean that all Native Americans were now citizens, but that interpretation was rejected by the Senate Judiciary Committee in 1870 which ruled that those associated with recognized tribes were not born under the jurisdiction of the United States and thus were not citizens. 

It was formal policy, however, to encourage Indian citizenship and Indian assimilation into American society. In 1887 Congress passed the General Allotment (or Dawes) Act, which granted citizenship to all Native Americans who “adopted the habits of civilized life,” as well as those who accepted private allotments of what had been tribal lands. Under the Dawes Act, more than half of all Native Americans had become citizens by 1905. Even more became citizens when those who served in World War I were granted citizenship, and in 1924, Congress finally declared that all Indians born in the United States were citizens.

The prevailing policy was clear if difficult to apply: Native Americans could become voters, but only by surrendering or repudiating their own culture, economic organization, and societal norms.