PoliticalVotingRights-1stLecture.pdf POS 4684
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These are extensive notes on the constitution and gives detailed explanations about laws passed in the South to try and restrict voting rights
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Date Created: 11/18/14
082813 Political Voting Rights15 Lecture What is Citizenship Citizenship in a Republic is important because it defines who can vote and who can t vote Who decides the definition of citizenship Elected officials and most likely the Constitution there are rules as well For example if you are born in the United States physically then you automatically become a citizen Since 1868 citizenship has been a birthright In a federal republic what about the distinction between state and national citizenship There is a distinction between state and national citizenship as can be seen in the Slaughterhouse Cases of 1873 The Supreme Court in a 54 decision decided that there is a meaningful duality of citizenship That there is a part of you that answers to the federal government and the federal government answers to you And the rest of you answers to the state in which you live in What is the link between citizenship and voting Is one necessary for the other Yes Since the 1840s Congress has mandated that if you want to vote in a federal election then you must be a citizen of the United States Do we let noncitizens Vote Actually before the 1840s there were parts of the United States in which noncitizens could vote Northwest Ordinance It was a law that was passed by Congress to organize the N Western part of the United States There was territory that were not states yet Northwest Territory One of the ways Congress encouraged people to move there was to allow them to vote and give them a sense of self governance Congress began to put a stop to this Most Midwestern states allowed noncitizens to vote until the mid19 century The Republic of Texas 1836 1845 allowed noncitizens to vote Who can vote 1 1789 White male residents over 21 with 20000 worth of real property In S Carolina the only people that could have voted were White Male Plantation owners So who was excluded African Americans poor whites and females 2 By 1830 All States drop the property requirement But you still needed to have property to become a legislator in South Carolina 3 By 1850 Congress adds a citizenship requirement 4 By 1870 Congress drops White In 1870 the 15 amendment is passed and bars discrimination in Voting 5 1890 Southern states begin to add literacy tests you also needed to pay a poll tax and there Were Whites only in Democratic primaries This affected mostly slaves and white poor people Who did not know how to read and Write 6 1920 By 1920 Congress passes an amendment that bars sex discrimination in regards to Voting 7 1944 Drop Whites only in Democratic primaries 8 1964 Poll taxes were abolished 24 amendment You can t make people pay to Vote 9 1965 Literacy Tests were banned 10 1971 18 19 20 year olds Were allowed to Vote 083013 Political Voting Rights2quot Lecture Who can t Vote in 2013 Depends on the state in which you reside in Noncitizens cannot vote in federal elections Noncitizens can vote in school board elections in Cambridge MA and a few small towns in California They can also vote in city elections in Takoma Park MD Why Because of the language in the Constitution Noncitizens cannot vote in federal elections In Florida Mississippi and Iowa convicted felons are barred for life from voting holding office or serving on juries People in mental institutions are barred from voting in almost all states as are people judge incompetent by a court Between 2008 and 2011 about a dozen states added photo id requirements Between 2011 and 2013 another dozen states added such requirements What does the Constitution say about voting Not much in the original version but 6 of the 27 amendments deal directly with voting Original Constitution said only two things about voting 1 Article I section 2 Tells us who is eligible to vote in the elections for House of Representatives It says that it depends on the states Also the qualifications to vote in the House of Representatives have to be exactly the same for voting for electors in said State Legislature ie State House 2 Article I Section 4 It is very ambiguous It s known as the Time Places and Manners Clause Each state makes laws as to when how and where we are going to hold federal elections in that state But Congress may at any time by law make or alter such regulations Why would the framers of the Constitution put such a contradictory statement in the Constitution To avoid any chaos Congress by the 1840s Congress said that you must have a uniform national election day The Voting Amendments to the Constitution 0 14quot section 2 only of 1868 Talks about apportionment of representatives 15quot of 1870 Bans race discrimination 17quot of 1913 The people got the right to Vote for Senators 19quot of 1920 Bars sex discrimination 24quot of 1964 Bans poll taxes 26quot of 1971 Lowers Voting age from 21 to 18 Section 2 of the 14quot Amendment 1868 Overturns 35 compromise It does not ban race discrimination it punishes race discrimination in that Southern States didn t allow black men to Vote the representation of Southern States would be lowered 15quot Amendment 1870 Caused profound political changes For example 60 of the population of Mississippi is black Black people were being elected to office Both senators for Mississippi were black 17quot Amendment 1913 The Senate of the US shall be composed of two Senators from each State elected by the people thereof 090413 Political Voting Rights3quot Lecture The 19quot Amendment 1920 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any States on account of sex The 24quot Amendment 1964 It says that you cannot stop people from voting because they cannot pay a poll tax or other tax It is also restricted to federal elections only Does not ban poll taxes in state or local elections Why It s all about politics The 26quot Amendment 1971 The right of citizens of the United States who are eighteen years of age or older to vote shall not be denied or abridged by the United States or by any State on account of age It is the last expansion of voting Caused by the fact of the Vietnam War in which 18 year olds were drafted All of these amendments share one thing in common and that is citizens So everything is contingent on the definition of citizenship The first case that deals with this is Dred Scott v Sanford 1857 which defined citizenship rights before the Civil War The 14 amendment s Section 1 1868 defined citizenship after the Civil War Dred Scott V Sanford 1857 Dred Scott is all about how we define citizenship in the US Dred Scott was a black man who was born as a slave born in Virginia and grew up in Missouri Missouri was a slave state since the 1820s it is the Northernmost state that allows slavery But it is surrounded by states who don t allow slavery One of the owners was a US army officer who was stationed at a fort in Iowa for about 7 years and took Dred Scott and his family to Iowa Dred Scott s lawyers said that they have lived in Iowa for 7 years and Iowa does not allow slavery and he is a free man Does the fact that he lived there mean that A he is a free man And B is he a citizen The original privileges and immunities clause of the constitution is at issue here Article IV Section 2 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States This was a critical issue to Chief Justice Taney in the Dred Scott decision This means that if you re a citizens of Florida and you move to Illinois Chicago This means that you cannot be treated differently in Illinois just because your were born in Florida Dred Scott argues that he lived in Iowa for seven years and Iowa bans slavery So he has to be treated as a free man And this is based on the privileges and immunities clause of the Constitution which is located in Article IV Section 2 But Roger Taney sets a legal precedent by saying that when the Constitution was Written every single state allowed slavery Blacks Whether free or slave were not citizens of either a state or the United States This was because at the time of the signing of the Constitution no state extended them citizenship Therefore no state could extend that now because it would require all other states to accept it under the privileges and immunities clause of Article IV The Missouri Compromise of 1820 was also unconstitutional Argument was that the government could ban states from choosing to become a slave state or not This decision polarized the nation and hastened the onslaught of the Civil War 090613 Political Voting Rights 4quot Lecture 14quot Amendment Section 1 The 14th amendment ratified in 1868 was a direct rebuttal of Dred Scott All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside Citizenship is then portable and overturns Dred Scott Now that the Constitution has established a legal definition of citizenship the question then becomes what is the meaningfulness of that distinction The 14 amendment goes on to say that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States So in the first part of the 14 amendment we establish that you have a duality of citizenship The second part says that the states cannot abridge your US citizen rights This creates a problem with the Slaughterhouse cases because it does not specifically state what those privileges are The last part of section one says that nor shall any State deprive any person of Life Liberty or Property without due process of law Nor deny to any person within its jurisdiction the equal protection of the laws Again this applies to the states here the states have to treat everyone equal under the law SlaughterHouse Cases 1873 First case to deal with the 14 amendment In a 54 decision the majority held that the 14 amendment only protects federal citizenship rights The 14 amendment establishes dual citizenship Dual citizenship as a US citizen and as a citizen of the state you live in But what does that mean What are your federal citizenship rights and what are your state citizenship rights Facts of the Case One group of white butchers in New Orleans are angry with another group of white butchers in New Orleans because the State of Louisiana won t let this one group set up business to slaughter pigs chicken and cattle There was a law passed by the State legislature in the 1870s that created a legal monopoly on slaughterhouses This law only allowed the Crescent City Live Stock Landing and SlaughterHouse Company to do business in regards to slaughtering animals Lawyers for the white butchers look at the privileges and immunities clause and say that my rights as a butcher to do business freely in the State of Louisiana my rights are being violated because they set up this monopoly They say that their privileges are being violated by the State of Louisiana The court for the first time is being asked to interpret what the duality of citizenship means within the context of the 14 amendment This is going to set a precedent in that it is going to affect voting rights and the way we conduct business This case doomed the civil rights of blacks for almost 100 years This is what the case said Majority Opinion It is quite clear then that there is a citizenship of the United States and a citizenship of a State which are distinct from each other and which depend upon different characteristics or circumstances in the individual But with the exception of these prohibition against ex post facto laws bills of attainder and laws impairing the obligation of contracts and a few other restrictions the entire domain of the privileges and immunities of citizens of the States as above defined lay within the constitutional and legislative power of the States and without that of the Federal government This tells us that you have privileges and immunities in the State and in the Federal government And that most of your privileges and immunities come from the State and not from the Federal government Justice Field s Dissent If under the fourth article of the Constitution equality of privileges and immunities is secured between citizens of different States under the fourteenth amendment the same equality is secured between citizens of the United States What this says is the following Look the 14 amendment was part of the aftermath of the Civil War This obliterated the duality argument He says that the 14 amendment secured the rights of citizens in the United States So no one should be making lists of rights that are federal vs those that are made by states 090913 Political Voting Rights 5quot Lecture The 14quot amendment section 1 Citizenship Clause All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside overturns Dred Scott Privileges and Immunities Clause No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States So state governments are not supposed to interfere with your rights and privileges as an American citizen Due Process Clause Nor shall any State deprive any person of life liberty or property without due process of law You need a court system to take someone s property or liberty or even life Two Views of the 14quot amendment s Privileges and Immunities clause 1 Slaughterhouse decision There is a meaningful duality to citizenship and people answer to both state and federal governments The 14 only protects the US federal citizenship rights of people State abuses of state citizenship rights are up to state constitutions and state courts The federal courts can t help you in overturning this monopoly so go to the state courts 2 Justice Fields dissent the radical interpretation The Civil War and the 14 amendment that resulted from it obliterated the duality of citizenship and once and for all nationalized citizenship rights privileges and immunities Therefore the 14 protects citizens against all citizenship abuses by any government The Slaughterhouse Cases are important because it established this duality of citizenship It said that the 14 amendment says that you are a citizen of the United States and that you are a citizen in the state in which you reside Secondly this means that there are different characteristics of your citizenship some federal but mostly state Third that since you have different characteristics of your citizenship rights the feds protect your federal rights and the state protects your state rights So the federal government can t protect you against state rights The courts here rely on the 10quot amendment which states that any powers not specifically stated in the constitution can be given to the states Civil Rights Cases and Plessy v Ferguson The Civil Rights Cases comes up exactly 10 years after Slaughterhouse it comes up in 1883 So a lot of the justices who had been involved in the Slaughterhouse Cases are still on the bench but there are some new ones that have been added Two years after the Slaughterhouse Case was decided Congress passed a law called the Civil Rights Act of 1875 Civil Rights Act of 1875 It is meant to enforce the 14 amendment s prohibitions on treating people inequitably It is meant to enforce the equal protection clause all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations advantages facilities and privileges of inns public on land or water theatres and other places of public amusement subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color regardless of any previous condition of servitude So this is the first civil rights law passed by congress It is trying to outlaw race discrimination in public accommodations Its saying that states cannot pass laws that segregate hotels trains boats ferries theatres You can t pass laws on the state level that discriminitae on blacks or former slaves A lot of states did not like this law Not just in the South but states like California and Nevada Some states say that Congress does not have a right to pass this law because of the Slaughterhouse Cases So how can you use the Slaughterhouse Cases to say that the Federal Government can t make the States stop discriminating against blacks You have to assume that getting on a train or staying in a hotel is one of those parts of your citizenship body that is up to the states The Civil Rights Act of 1875 was deemed unconstitutional because it went beyond what the 14 amendment authorized Congress to do And so in the present case until some State law has been passed or some State action through its officers or agents has been taken adverse to the rights of citizens sought to be protected by the Fourteenth Amendment no legislation of the United States under said amendment can be called into activity What does this mean The Federal Government has to wait for the States to pass discriminatory laws And once the States pass discriminatory laws then the Feds can take corrective action So the 14 tells us things that the state can t do but it does not go so far as to tell us that the Feds can pass laws such as the 1875 Civil Rights Feds have to wait for states to discriminate against blacks and then the United States can take corrective action This makes it impossible to enforce this law Supreme Court rationale on the Civil Rights Cases 1883 The 14 Amendment is prohibitory upon the States only and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the states but is corrective legislation such as may be necessary or proper for counteracting and redressing the effect of such laws or acts This is known as the direct state action theory And this was the law of the land until Brown v Board of Education Example of Direct State Action Theory 1 Suppose a state says blacks cannot eat in public restaurants 2 This seems on its face to violate the equal protection clause of the 14 amendment 3 But the 14 amendment only authorizes Congress to stop this practice by the states 4 It does NOT allow Congress to pass a general law protecting the civil right of eating in a public restaurant Therefore Congress cannot use its legislative power to directly guarantee civil rights It has to wait until after a state violates someone s civil rights to take action and then the action is only corrective So the Civil Rights Act of 1875 is unconstitutional because it is telling the States ahead of time what they can t do You instead have to wait for the States to do something that the Feds consider to be a violation of the constitution under the 14 amendment and then you can have the attorney general sue or pass a law to enforce the 14 amendment Secondly it is unconstitutional because the US government does not have the power to outlaw private discrimination based on race 091113 Political Voting Rights6quot Lecture Example of Direct State Action Theory 1 Suppose a state says blacks cannot eat in public restaurants 2 This seems on its face to violate the equal protection clause of the 14th amendment 3 But the 14th amendment only authorizes Congress to stop this practice by the states 4 It does NOT allow Congress to pass a general law protecting the civil right of eating in a public restaurant Therefore Congress cannot use its legislative power to directly guarantee civil rights It has to wait until after a state violates someone s civil rights to take action and then the action is only corrective You have to wait until States violate your Civil Rights for the Federal Government to take corrective action Justice Harlan s Dissent Thought that the Direct State Action theory gutted the 14 amendment Harlan also believed that Congress could ban private discrimination if it was sued by the owners or operators of a business living off public or semipublic commerce Restaurants hotels and railroads all are regulated by states for some public purpose By the 1890s a lot of States had passed segregation laws because the Civil Rights Act is gone They segregated public schools and public transportation such as the railroads There are also laws that segregate restaurants theatres etc This will inevitably get Plessy v Ferguson Plessy V Ferguson 1896 81 The outcome is that states can legally separate the races without violating the equal protection clause of the 14 amendments A statute which implies merely a legal distinction between the white and colored races has no tendency to destroy the legal equality of the two races or re establish a state of involuntary servitude The object of the 14 amendment was undoubtedly to enforce the absolute equality of the two races before the law but it could not have been intended to abolish distinctions based upon color or to enforce social as distinguished from political equality or a commingling of the two races upon terms unsatisfactory to either Facts of the Case Louisiana was a State that segregated races But this meant that you had to have legal distinctions between the two races Homer Plessy is the Plaintiff in this case He intentionally got himself arrested What he did was that he goes to the train station in New Orleans and sits down in the 1 class train car Plessy gets arrested goes in front of the Judge Ferguson and then go to the Supreme Court Harlan Dissent If a white man and a black man choose to occupy the same public conveyance on a public highway it is their right to do so and no government proceeding alone on grounds of race can prevent it without infringing the personal liberty of each What about Protestant and Roman Catholic train cars Refers to this decision as a Dred Scott case The Four Early Citizenship Rights Cases 1 Dred Scott V Sanford 1857 blacks cannot be citizens 2 Slaughterhouse Cases 1873 There is a duality in citizenship and the US government can only protect US citizens not state citizens 3 Civil Rights Cases 1883 a The 14 amendment does not ban private discrimination based on race b the 14 amendment is prohibitory on states and only allows corrective legislation by Congress to right specific wrongs not a blanket authority to pass positive laws protecting civil rights direct state action theory 4 Plessy V Ferguson 1896 Separation of the races is not a violation of the equal protection clause of the 14 amendment 5 So by 1896 the spirit of equality of citizens in the 14 amendment had been all but abandoned by the Court 091313 Political Voting Rights 7 Lecture The 15h Amendment 1 The rights of citizens of the United States to vote shall not be denied or abridge by the United States or by any State on account of race color or previous condition of servitude 2 The Congress shall have power to enforce this article by appropriate legislation Immediately after the 15 amendment Congress passed appropriate Legislation it passed the Force Act of 1870 Force Act of 1870 1 Outlawed Voter intimidation and bribery Have to do with fraud in voting You can intimidate people out of voting beat them up take away their house etc Bribery criminalizes if you pay someone like 10 dollars to vote for a specific guy Fine of 500 dollars and up to 1 year of prison 2 Outlawed Violence or the threat of violence By threat of violence meaning threat of depriving people of employment ejecting them from a rented house 3 Banned conspiring to violate the act s provision Even if you think about violating any provision of this act along with someone else it would be a felony Worse than actually violating the act Fine not to exceed 5000 dollars and the imprisonment not to exceed ten years Aimed at going after organizations such as the Klu Klux Klan 4 Made refusing to register qualified people to vote a crime This was aimed at people who worked for state and local governments Particularly those Who Worked for the elections department If you are a poll worker and you refuse to register someone because they are black the feds can go after you 5 Authorized the use of the military to enforce the act Summary Force Act of 187 0 1 Outlawed voter intimidation and bribery 2 Outlawed violence or the threat of violence 3 Banned conspiring to violate the act s provisions 4 Made refusing to register qualified people to vote in federal elections a crime 5 Authorized the use of the military to enforce the act 6 Was declared unconstitutional by the Supreme Court in 1875 United States V Cruikshank 1875 Questions Raised by the Case 1 Can Congress outlaw conspiracy to deprive people of their right to vote under the Enforcement Act 2 Can Congress protect citizens 1 and 2nd amendment rights against abuses by their states with the Enforcement Act Facts of the Case In 1873 in a place called Grant Parish Louisiana there had been some elections for the county judges county commission etc All the democratic candidates were White men and all the republican candidates were black men Both sides claim they had Won the election So both groups of candidates thought they had Won and both groups show up for their jobs Group of White angry democrats bring guns The Republicans got in the courthouse the democrats locked the doors They set it on fire and 273 people burned to death President Grant sent the military to restore order Under the Enforcement Act the military can enforce this law The local commander on the ground had a Whole bunch of people arrested for murder But the problem was that murder was not a federal crime But it does mention conspiracy The Cruikshank brothers were accused of being the ring leaders The State of Louisiana acquits these guys of murder So the Feds come in and get them under the conspiracy statue of the Enforcement Act of 1870 And they convicted the Cruikshank brothers and were sent to prison for 10 years So the Cruikshank brothers sue the United States and say they got acquitted for murder They appeal and say that the law was too Vague 091613 Political Voting Rights 8quot Lecture Summary Force Act of 1870 1 Outlawed voter intimidation and bribery 2 Outlawed violence or the threat of violence 3 Banned conspiring to violate the act s provisions 4 Made refusing to register qualified people to vote in federal elections a crime 5 Authorized the use of the military to enforce the act 6 Declared unconstitutional by the Supreme Court in 1875 United States V Cruikshank 1875 Questions Raised by the Case 1 Can Congress outlaw conspiracy to deprive people of their right to vote under the Enforcement Act 2 Can Congress protect citizens 1st and 2nd amendment rights against abuses by their states with the Enforcement Act Law action or constitutional provision at issue 1 Enforcement Acts of 1870 and 1871 The Cruuikshanks are being prosecuted under the Enforcement Acts conspiracy provisions 2 15 2quot 14quot and 15 amendments of the Constitution Creative thing that the prosecution did He charged that the brothers were acting under the color of law That they were acting at the behest of the democrats that ran Louisiana to deprive these black republicans of their 1 amendment rights to freedom of assembly And also their 2nd amendment right to keep and bear arms The 14 amendment and 15 amendment in that they are depriving people of their citizenships and voting rights Problem is that the brothers are private citizens 3 Violence committed by Cruikshank and others The government s case fell apart Author Chief Justice Waite Dissents and Concurrences Justice Clifford Case outcome 1 Because of Slaughterhouse Cases there is a dual citizenship That there are certain rights that are protected by the Federal government and certain rights that are protected by the State in which you reside 2 Therefore Congress cannot protect the 1 and 2 amendment rights of citizens from their state governments They say that the 1 amendment does not apply to states it only applies to Federal government You are charging these guys with depriving people of their right to peaceably assemble Also the 2 amendment says that Congress cannot take away your guns it does not anything about state governments Overturned in 1925 and 2010 Plus Cruikshanks are not state government employees 3 The statute is too broad and too vague in its definition of conspiracy 4 The indictment was also vague and therefore faulty 5 Clifford in his concurrence also implied the statue and indictment were violations of the 6 amendment rights of the defendants The Supreme Court in this case only said the conspiracy part was too vague Left the other parts of this case United States V Reese 1875 Reese is a tax collector in Lexington Kentucky Reese is working for the government So the Feds are going to come after Reese under the part of the Force Act that says were going to prosecute state and local elections officials if they interfere in the right to vote on the basis of race Reese was not involved directly with voting But the State of Kentucky had a poll tax William Garner wanted to vote in the Federal Elections Garner went up to race and gave him 150 for his poll tax And Reese refused to take Garner s money because he was black So Garner could not vote Better case because Reese refused to take a poll tax and is a government employee But the problem is the way the law is written The law says that voting officials cannot interfere in the right to vote on the basis of race Reese is going to argue that he is not a voting official He is the tax collector The prosecution is going to argue that you have to pay the tax to vote Reese was fined 500 dollars by the federal government Questions raised by the case 1 Is the Enforcement act appropriate legislation pursuant to the 15 amendment The 15 amendment has two sections The first is that states cannot make or enforce any law which shall deprive or abridge people of the right to vote on the basis of race Secondly Congress shall have the power to enforce this article by appropriate legislation Reese s attorney is arguing that the entire Act goes too far 2 Does the 15 amendment outlaw all legal hurdles to the right to vote Author Chief Justice Waite Dissents and Concurrences Justice Clifford concurring Justice Hunt dissenting Case outcome 1 The 15 amendment does not grant a positive right to vote to anyone It is about restricting What states can do Which states that you cannot discriminate on the basis of race color or previous condition of servitude 2 It merely protects votes from discrimination directly based on race Law action or constitutional provision at issue 1 The Enforcement Act 2 The 14 and 15 amendments 3 The refusal of a vote inspector to receive a poll tax payment from William Garner in a municipal election 4 The Enforcement Act is not appropriate legislation pursuant to the 15 amendment because the act is too broad 5 Therefore the act is unconstitutional 6 Tax collectors are not covered by the act Clifford Dissent concurrence 1 He agrees with the judgment 2 But he said Garner did not pay his poll tax of 140 Which is Why he could not vote 3 The Enforcement Act does not outlaw poll taxes 4 Clifford believes that the act per se is not unconstitutional Hunt Dissent 1 The poll tax collector refused to accept Garner s poll tax payment because he Was black 2 He was acting as an agent of the state of Kentucky 3 Therefore this was a violation of the 15 amendment not the tax itself but the refusal to let Garner pay it because he was black 091813 Political Voting Rights 9quot Lecture Jim Crow Laws Combine this with the Slaughterhouse ruling in 1873 The Civil Rights Cases in 1883 Plessy V Ferguson in 1896 and Reese and Cruikshank in 1875 and you have the genesis of the Jim Crow South
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