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The Two Reconstructions

The Struggle for Black Enfranchisement

Copyright © 2004 The University of Chicago
All right reserved.
ISBN: 978-0-226-84528-9

The Strange Career of African American Voting and Office-Holding

African Americans' rights-to vote and to hold office-have had a strange career. A sudden, large increase in rates of black voting and office-holding has taken place twice over the course of American political evolution. The meaning of that fact, as we will see, is disturbing. From a social science standpoint it is also deeply interesting.

The first large expansion in African American voting rights took place after the Civil War. It was so sweeping that in 1874, when Congress revised the United States Code, the revisors were able to take forty-seven separate regulatory provisions from the federal elections statutes enacted between 1870 and 1872 and place them in the code. But inclusion eventually gave way to thorough disenfranchisement of African Americans at the state level. In the late 1890s, southern governments set up poll taxes and literacy tests to push blacks out of the voting booth. This process affected federal law as well. Congress threw out the Reconstruction-era elections statutes. A House report from the Fifty-third Congress (1893-1895) demanded that "every trace of reconstruction measures be wiped from the books." By1911, this goal was effectively met. About 94 percent of a once-elaborate federal electoral-regulatory code was repealed.

A "second reconstruction" was therefore required for America to become fully democratic and for its inegalitarian race relations to again change accordingly. And therein lies the startling nature of America's two reconstructions. No major social group in Western history, other than African Americans, ever entered the electorate of an established democracy and then was extruded by nominally democratic means such as constitutional conventions and ballot referenda, forcing that group to start all over again. Disenfranchisements certainly took place in other nations, for example, in France, which experienced several during the nineteenth century. But such events occurred when the type of regime changed, not under formally democratic conditions. In Europe, Latin America, and elsewhere, liberal democracies never sponsored disenfranchisement. Once previously excluded social groups came into any established democratic system, they stayed in.

This is an extraordinary datum about the United States. We often think of America as exceptional-but never in quite this way. Before discussing this phenomenon, it helps to take a closer look at it. Abraham Lincoln's discussion of black suffrage during his last speech is a good place to start. It was the first time a U.S. president brought up black suffrage and posed it as a national issue.

Speaking from a White House balcony on April 11, 1865, Lincoln shared several pregnant thoughts about "the elective franchise for the colored man" with an assembly gathered below him on the White House lawn. He said that he backed suffrage for "the very intelligent" (by which Lincoln probably meant African American men with property and formal education) and for "those who serve our cause as soldiers" (which then referred to about 150,000 black male army veterans).

The "colored man" to whom Lincoln referred was a prominent part of life both in the border states of Delaware, Kentucky, Maryland, and Missouri and in the eleven states of the former Confederacy-altogether about 46 percent of the Union. But African Americans did not have the right to vote in any of these states. Indeed, when Lincoln spoke these words very few black men-and no black women-had the right to vote. When the states joined the Union after ratification of the Constitution in 1789, only three permitted blacks to vote: Maine, Tennessee, and Vermont. As the Union grew, original and new states consciously disenfranchised blacks. By 1865 free African American men voted only in Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island.

Lincoln's plan of extending voting rights to a large number of the recently emancipated black men plainly foretold a new national politics. Listening to Lincoln, his assassin, John Wilkes Booth, swore in fury that he would "put him through." He did just that a few days later.

African American suffrage might at this moment have died stillborn, for President Andrew Johnson, Lincoln's successor, soon revealed a deep hostility to black voting rights, indeed black rights of any sort. Yet Congress moved to establish widespread black suffrage despite Johnson's opposition. Between December 1866 and December 1867, the percentage of all black adult males eligible to vote suddenly shot up from .5 percent to 80.5 percent, with all of the increase in the former Confederacy. By 1870 the Constitution featured two new amendments, the fourteenth and the fifteenth, enshrining the right to vote. The first reconstruction, as it is sometimes called, was well under way.

Black office-holding emerged very rapidly. About half of the lower house of South Carolina's legislature during the first reconstruction was black, 42 percent of Louisiana's lower house and 19 percent of its upper house was black, and Mississippi's house was 29 percent black and its senate 15 percent black. Even Virginia, which did not experience a "radical" phase in its reconstruction, had for a brief period a lower house that was 21 percent black and an upper house that was 6 percent black.

But in the 1890s, a generation after the great expansion in black voting and office-holding, legislatures and constitutional conventions controlled by white southern Democrats disenfranchised the South's black adult males, extinguishing voting rights for the great majority of African Americans. When women's suffrage arrived in 1920, it did not alter black disenfranchisement in the former Confederacy. Black women did not vote. Not until the 1940s did black voter registration drives in the South eventually reemerge and experience some success. And one more generation of fierce struggle was still required before Congress enacted the 1965 Voting Rights Act. That statute was the turning point in the second reconstruction.

The 1965 act fundamentally recast the legal and administrative context for voting in the South. Previously what might be called "wholesale shrinkage" of the electorate had been accomplished with literacy tests, poll taxes, stringent residency requirements, requirements that registration occur months before elections, and inconvenient hours and arrangements for registration. African Americans who sought to participate anyway were met by "retail shrinkage": rejection at the discretion of local electoral administrators.

Simply by ending this older legal and administrative context, the Voting Rights Act created a new, far freer one. Section 4 of the act applied the statute to any state or county that maintained a voting test or device on November 1, 1964, and where the census showed voter registration or turnout for the 1964 presidential election to be below 50 percent of the voting-age population. These tests or devices were now suspended for five years. The act thus covered all of Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia, twenty-six North Carolina counties, three Arizona counties, one Hawaii county, and one Idaho county. The act also prevented the state of New York from enforcing its English-language competence test against voting-age Puerto Ricans residing in New York. Section 6 of the act authorized appointment of federal examiners in jurisdictions covered under section 4. They reviewed "applicants' qualifications for voting and placed the names of those qualified to vote on a list of eligible voters ... local officials were then obligated ... to place the names of those persons listed by federal examiners on the official voting lists." Section 5, creating a mechanism called "preclearance," required the submission of any planned changes in voting rules in the covered jurisdictions to either the attorney general or the three-judge district court of the District of Columbia for prior approval.

After President Lyndon Baines Johnson signed the Voting Rights Act on August 6, 1965, sharp increases in black voter registration occurred where the act was initially applied in the former Confederacy and in states where it stimulated further struggle. For the Peripheral South (Arkansas, Florida, Tennessee, and Texas), black voter registration jumped from about 60 percent in 1964 to about 71.4 percent by 1968, roughly a 19 percent increase that reflected compliance by state and local officials with the Voting Rights Act and the impact of continued black activism. In the Deep South (Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia), where Jim Crow politics had historically tended to mean greater repression, registration jumped from about 33.8 percent of all black adults in 1964 to 56.6 percent in 1968, or a 67 percent increase, again apparently due to compliance by state and local officials with the commands of the act and continued civil rights activism.

Even so, America today is still struggling over black voting rights. Large numbers of African American adults are blocked from voting by state felony disenfranchisement laws. Felony disenfranchisement too often rests on legal provisions that were enacted with racial intent. Further, several southern states-Florida, Virginia, Alabama, Texas, and Mississippi-disenfranchise ex-felons at very high rates. Provisions of these states' criminal codes shrink the number of potential black voters considerably. About 31 percent of all black men in Florida and Alabama, for instance, are permanently barred from voting.

Also, startling episodes occur and recur. The best known of these happened in November 2000, when many of Florida's black voters found that their presidential ballots were rejected or not counted by election officials at disproportionately high rates.

Finally, increases in black office-holding since passage of the Voting Rights Act have critically depended on federal involvement. In the early 1980s, Congress found it necessary to add a new section to the act intended to press state and local legislative bodies to make black and minority office-holding easier. The new section 2 held that there is a "denial or abridgement of the right to vote" if electoral processes are not "equally open to participation" by "members of a protected class" and if such members "have less opportunity ... to elect representatives of their choice." The policy directive was clear: government should focus on the mechanisms and processes that impede the election of blacks to public office.

By the early 1990s the House of Representatives had the largest number of black legislators it had ever had-thirty-eight. In southern states that were completely covered by the Voting Rights Act (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia), the average percentage of all local elected officials who were black was 3.6 percent in 1974 but had grown to 13.3 percent by 1993, a 269 percent increase. Yet black office-holding is not completely normalized, in or outside the South. Subtle signs of white resistance abound. In 2003, the following was reported in an opinion of a federal district court:

[A]fter the 2000 Charleston County School Board elections, for the first time in the history of the County, five of the nine school board members were African-American persons. After African-American school board members became a majority on that governing body, the Charleston County Legislative Delegation to the South Carolina General Assembly sponsored several pieces of legislation.... [L]egislation was introduced to remove control of the budget of the school system from the School Board and place it under the jurisdiction of the County Council.

Such resistance by whites to black office-holding may, indeed, be covertly inscribed on the Fifteenth Amendment (the second of the two Reconstruction-era amendments constitutionally regulating black voting rights). The amendment contains no explicit provision for office-holding. That is because Congress chose to drop such a stipulation so that the amendment could be ratified quickly.

But the 1982 amendment of the Voting Rights Act (stipulating that minorities be free to vote into public office candidates whom they wish to support) openly acknowledges the significance of black office-holding. This is quite correct. The United States is not a direct democracy; it is a representative system. It cannot be anything other than a representative polity, given its size. For that reason, voting in and of itself has not been and is not sufficient to create a fully democratic public sphere in this country. It is necessary. But group access to office-holding is also necessary.

Black office-holding has always been in part a matter of "civic status." Social standing in America, Judith Shklar cogently argued, has two great emblems: the right to vote and the "opportunity to earn." She might well have added that free access to public office, regardless of class, gender, ethnicity, or race, also entitles a group defined by such divisions to general respect. According to Shklar, "to see just how important [civic standing] has always been, one has to listen to those Americans who have been deprived of it through no fault of their own." Listen, then, to Tom McCain, one of the first blacks elected to local office in Edgefield County, South Carolina, in the 1980s, after a century of lily-white government: "There's an inherent value to office-holding.... A race of people who are excluded from public office will always be second class." McCain clearly speaks in the language of social standing.

Or listen to Reverend Henry McNeal Turner, a state senator protesting his expulsion from the Georgia legislature in 1868 on the ground that blacks could vote but were not entitled to hold public office: "I am here to demand my rights, and to hurl the thunderbolt at the men who would dare to cross the threshold of my manhood." Later in his speech of protest, Turner exclaimed: "Congress, after assisting Mr. Lincoln to take me out of servile slavery, did not intend to put me and my race into political slavery. If they did, let them take away my ballot-I do not want it, and shall not have it. I don't want to be a mere tool of that sort. I have been a slave long enough already." Denial of access to the political good of holding public office was tantamount to slavery; it made the ballot worthless. Worse, it turned the ballot into an instrument of extreme political dependence, Turner suggested.

With characteristic pungency Turner grasped an additional rationale for black office-holding. It is about an equal place at the table in important policy-making settings: "We are told that if black men want to speak, they must speak through white trumpets ... through white messengers who will quibble and equivocate, and evade as rapidly as the pendulum of the clock." But, Turner said, white trumpets were not good enough. Black citizens had clear policy needs. They needed jury representation to prevent their being "sent to the Penitentiary in perfect caravans," a school bill for "the rising youths of our State," a civil rights law to prevent black passengers on common carriers from being forced to pay first-class fare only "to be thrust into Jim-Crow cars, for white men to insult their wives, and blackguard our daughters, and smoke them to death," and a laborers' lien to prevent their being "driven away penniless."

True, some analysts deny that the "equal place" proposition requires extensive black office-holding. Survey research conducted by Katherine Tate suggests that for most blacks the "equal place" idea is quite compelling. But, say critics of this view, white politicians and judges can and do represent black voters quite well. Of course they can. Yet Kerry Haynie has shown that increased office-holding by African Americans in state legislatures by itself changes states' expenditures on health, education, and welfare. Simple change in the number of black legislators, and nothing more, impacts public spending in the states. Although white politicians of the same party can represent black constituents, there seems to be a significant "extra" that comes from racially integrating a major decision-making body such as a legislature, and the same may well be true of the judiciary.

(Continues...)

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Excerpted from The Two Reconstructions by Richard M. Valelly Copyright © 2004 by The University of Chicago. Excerpted by permission.
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