Disfranchisement in Virginia

until after the Civil War, only white men had an opportunity to vote
until after the Civil War, only white men had an opportunity to vote
Source: Humanities – Picturing America, George Caleb Bingham: The County Election, c.1852

During the colonial period, only freemen (adult white men not working as an indentured servant) could vote. Since women and indentured servants were never allowed to vote in colonial Virginia, they were excluded but not "disfranchised."

It is possible that one or more persons of color managed to vote in the 1620's, but in the mid-1600's Virginia's colonial leaders made clear that blacks would be enslaved for their entire lifetime and slavery would be hereditary. They would not be granted the same freedoms as white indentured servants, who were allowed to vote after completing their terms of service (their "indenture").

The prohibition against voting by women, slaves, mulattoes, Native Americans, indentured servants, and those under the age of 21 were formalized in different acts of the General Assembly passed in 1699, 1705, and 1723.1

The stimulus for passing those laws may have been someone trying to violate the customs of the day, causing one or more county sheriffs to ask for official authority to block a future attempt to vote.

The first group to have the right to vote and then be disfranchised were white males living in a household with an older male. In 1655, the right to vote for members of the House of Burgesses was limited to just the heads of households.

During the Interregnum after Charles I had been executed in England, the Puritans had sent an expedition to seize Virginia from royal supporter Governor William Berkeley. After they took control of Virginia in 1652, they held an election for a new House of Burgesses. Voters were required to swear a new oath in support of Parliament rather than the king. Some royalists may have felt disfranchised, but it appears voter turnout was still high.

The legislature elected after the Puritans took control did limit the suffrage for the first time. The General Assembly decided in 1655 that only one person per family could vote in future elections, and made clear that voters had to be at least 21 years old.

As a result of the 1655 law, sons who were living with their father lost the right to participate in elections for the House of Burgesses. Young men living in homes of their older brothers, and formerly-indentured servants still living in the home of their employer, also were disfranchised.

Since all males over sixteen years of age had to pay the poll tax, the class of young males 16-20 years old experienced taxation without direct representation. They could express their concerns to the head of the house, in hopes of shaping his vote and affecting an election indirectly.

The one-vote-per-household restriction on the electorate lasted only one year. In 1656, the burgesses concluded:2

we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in election

between 1619-1920, white men (and later black men) controlled who would represent all Virginians in the General Assembly
between 1619-1920, white men (and later black men) controlled who would represent all Virginians in the General Assembly
Source: Internet Archive, A school history of the United States, from the discovery of America to the year 1878 (p.40)

The second group to be disfranchised were white males without enough property (land or a lease for land) to be taxed.

In 1660, William Berkeley was restored to his position as governor in Virginia and Charles II was restored as king in England. In 1670, Governor Berkeley restricted the right to vote to white males who owned enough property that they were required to pay local taxes.

The governor was concerned about the growing numbers of former indentured servants who had completed their term of service, but had not acquired land to start their own farm. The governor prioritized maintaining peace with Native Americans, with whom he was engaged in a profitable fur trade. He was not willing to go to war and force the Native Americans to relinquish their land so new farms could be established in the backcountry.

Driving those Native Americans far away so the farms would not be raided might please the whites who were establishing new farms on the edge of settlement, but the governor was not willing to do that. He was willing to approve construction of new forts, which required new taxes but provided little or no military protection.

Key members of the already-wealthy gentry got paid to build the forts, and were appointed to different colonial offices that required higher taxes as well. The elite who depended upon the governor supported him as he redistributed wealth, but the poor farmers grew unruly. The new property requirement limited the ability of the unhappy farmers burdened with extra taxes to prevent the governor and General Assembly from "soaking the poor."

In England, the right to vote had long included a property requirement. For many locations, the minimum was 40 shillings. As inflation increased, more and more people qualified to vote. Different boroughs had separate requirements. In one, the judges allowed "potwallopers" to vote. A potwaller/potwalloper did not own or rent an entire house, but had enough control over one fireplace to boil the pot for themselves and their families.3

The property requirement was dropped briefly in 1676, when Governor Berkeley finally dissolved the "Long Assembly" and called an election for a new House of Burgesses. That was followed by Virginia's first civil war, Bacon's Rebellion.

After the rebellion was suppressed, royal instructions required reinstating the property requirement. The General Assembly passed such a mandate in 1684, and Virginians had to own a minimum amount of property in order to vote for the next 175 years.

A law passed in 1705 required that a man had to live in the county where he voted, but later laws simply defined a property rather than residence requirement. Relaxing the residence requirement allowed some wealthy property owners to vote in multiple jurisdictions, and to choose between them when running for the House of Burgesses.4

In 1736, the property minimums were defined as 100 acres of undeveloped land, 25 acres with a house and farmed land plantation, or a town house and lot. In 1762, the minimum ownership of undeveloped land was lowered to 50 acres and the minimum size of the town house was set at twelve feet by twelve feet (twelve feet square, or 144 square feet). Since normal town houses were at least twenty feet square, the 1762 law expanded the electorate.

The 1850 state constitution finally dropped the property ownership barrier to voting.5

The third group to be excluded were Catholics.

The Church of England was the established church in Virginia, but George Brent from Stafford County had been allowed to serve in the General Assembly after his election in 1688. After James II was overthrown in the Glorious Revolution that year, official toleration of Catholics decreased.6

In 1699, the General Assembly banned "recusant convicts" from voting. Catholics did not regain the right to vote until 1776. The Fifth Virginia Convention adopted a Declaration of Rights stating "all men are equally entitled to the free exercise of religion," and Virginia's first constitution made no reference to how religious status affected suffrage.7

Criminals were the fourth group of Virginians to be disfranchised as a class. When the state adopted its second constitution in 1830, people convicted of an "infamous offence" lost the right to vote. That restriction has been retained and expanded in all subsequent constitutions. The 1869 constitution gave the governor the authority to restore voting rights through a pardon. In 1870, the General Assembly initiated a database documenting who was disqualified to vote, but requiring that:8

...every clerk of the court of each county and corporation shall keep a register of full and accurate descriptive lists of every person convicted in his own or any other court of record of his county or corporation, of felony or other infamous offence.

members of the House of Burgesses who met in the Capitol Building in Williamsburg were elected by white, Protestant males who owned at least 50 acres or a townhouse
members of the House of Burgesses who met in the Capitol Building in Williamsburg were elected by white, Protestant males who owned at least 50 acres or a townhouse
Source: Wikipedia, Old Capitol Building, Williamsburg

In 2016, Governor McAuliffe broke with precedent and issued a mass pardon for 200,000 people if they had served their time and had completed any supervised release, parole or probation requirements. A lawsuit challenging his authority to issue the pardon was quickly heard by the Virginia Supreme Court.

The judges ruled that the governor had the authority to restore voting rights, but pardons had to be processed individually. The governor then completed the process in accord with the court decision, and restored the voting rights to the 200,000 convicted criminals.9

The fifth group of Virginians to experience mass disfranchisement were white male Confederates during the Civil War.

The Union Army occupied a portion of Virginia starting with the seizure of Alexandria on May 24, 1861, and the Federal government recognized the Restored Government of Virginia based in Wheeling as the official state government. When West Virginia was admitted as a state in 1863, the Restored Government of Virginia moved to Alexandria.

In 1864, the Restored Government of Virginia approved a new constitution for the state. It required voters to take an "iron clad" oath designed to disfranchise all who had supported the Confederacy after January 1, 1864. Anyone who had served in the Confederate government or state government was also banned. The 1864 constitution did not attempt to disfranchise local officials, however.

the 1864 constitution attempted to block Confederates from voting
the 1864 constitution attempted to block Confederates from voting
Source: For Virginians: Government Matters, Constitution of 1864

On May 25, 1865, black men went to the polls in Norfolk to vote in the first election after the end of the Civil War, to send delegates and a state senator to Richmond.

At three wards, election officials refused to let the blacks vote. In the Second Ward, votes were recorded, though on a separate sheet which was not counted when determining results that day. Simply denying the right to vote in three wards extended the traditional barrier of disfranchisement by color, while the manipulation of the voting process by refusing to count the votes of black men in the Second Ward initiated a new mechanism of controlling the vote.

In March 1867, the US Congress declared Virginia to be Military District 1 and mandated the state adopt a new constitution that allowed black adult males to vote. The Federal government did ensure blacks could vote when Virginia elected a constitutional convention on October 22, 1867. Over 20 blacks were elected to serve in the convention.10

The 1867-68 convention, presided over by John C. Underwood, proposed a new state constitution with the requirement that voters take the "iron-clad oath" swearing they were always Union supporters.

The proposed constitution would allow black men to vote, but disfranchise those white men who had held public office prior to the Civil War and then supported the Confederacy. The moral argument was that those men had broken their oath to uphold the Constitution of the United States.

The practical effect, which may have been a prime motivator for those in the 1867-68 convention who wrote the new state constitution, was to block almost all of the conservative white leadership from participating in the political process. If the top white leaders were disfranchised, then the Republicans and the newly-enfranchised blacks would be able to control the governor's office, the General Assembly, and local offices.

In 1869, a compromise was created to allow a separate vote on the suffrage restriction. Voters rejected the disfranchisement of Confederates, as proposed in the fourth clause of Article 3, Section 1:11

Every person who has been a Senator or Representative in Congress, or elector of President or Vice-President or who held any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.

This clause shall include the following officers: Governor, lieutenant-governor, secretary of state, auditor of public accounts, second auditor, register of the land office, State treasurer, attorney-general, sheriffs, sergeant of a city or town, commissioner of the revenue, county surveyors, constables, overseers of the poor, commissioner of the hoard of public works, judges of the supreme court, judges of the circuit court, judges of the court of hustings, justices of the county courts, mayor, recorder, alderman, councilmen of a city or town, coroners, escheators, inspectors of tobacco, flour, etc., clerks of the supreme, district, circuit, and county courts and of the court of hustings, and attorneys for the Commonwealth:

Article 3, Section 1 of the 1869 constitution included only three clauses, after voters rejected the proposed fourth clause to disfranchise former Confederates
Article 3, Section 1 of the 1869 constitution included only three clauses, after voters rejected the proposed fourth clause to disfranchise former Confederates
Source: for Virginians: Government Matters, Constitution of Virginia, 1872

The US Congress accepted the new state constitution, which allowed previous Confederate leaders to be eligible to serve in public office.

Robert M. T. Hunter resigned from the US Senate and became Confederate Secretary of State, so the Underwood Constitution of 1869 would have blocked him from voting if the disfranchisement clause had been approved
Robert M. T. Hunter resigned from the US Senate and became Confederate Secretary of State, so the Underwood Constitution of 1869 would have blocked him from voting if the disfranchisement clause had been approved
Source: U.S. House of Representatives, Robert Mercer Taliaferro Hunter

The Fifteenth Amendment, added to the US Constitution in 1870, gave black men the right to vote. Exercising that right was never easy, and Federal officials failed to require compliance with the Fifteenth Amendment. The power to disfranchise criminals was expanded in 1876 by an amendment to the state constitution, barring those convicted of petit larceny from voting. White sheriffs, working with racially-biased white judges and juries, could ensure that black men would be convicted and disfranchised at a far higher rate than white men.

White Democrats successfully kept many black men from voting for Republican candidates through multiple techniques. One was to use the registers of convicts, maintained by county courts, to challenge black men who appeared at precincts and have registrars bar those men from voting.

after the Civil War, the Republican-controlled US Congress required the former Confederate states to ratify the 15th Amendment providing former male slaves the right to vote, but Virginia used the poll tax and other rstrictions to limit the effectiveness of that mandate for over a century
after the Civil War, the Republican-controlled US Congress required the former Confederate states to ratify the 15th Amendment providing former male slaves the right to vote, but Virginia used the poll tax and other restrictions to limit the effectiveness of that mandate for over a century
Source: Architect of the Capitol, Lincoln's Second Inaugural, 1865

In 1902, a new state constitution was written to limit the electorate more efficiently. Carter Glass made clear the intent:12

Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for -- to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate

The Supreme Court had authorized "separate but equal" treatment of the races in its 1896 Plessy v. Ferguson decision. The 1902 constitution was successful in treating white and black voters unequally:13

The Constitution of 1902 disenfranchised about 90 percent of the black men who still voted at the beginning of the twentieth century and nearly half of the white men. The number of eligible African American voters fell from about 147,000 in 1901 to about 10,000 by 1905.

the 1902 Constitution was designed to limit the electorate by excluding people of color
the 1902 Constitution was designed to limit the electorate by excluding people of color
Source: University of Virginia Library, No White Man to Lose His Vote in Virginia (1901)

One tool of the new constitution was to reinstate the requirement that voters must have paid taxes before being eligible. Rather than require voters own a minimum amount of property, a complicated scheme for paying a poll tax was created. The Byrd Organization mastered that process to control the electorate from the 1920's into the 1960's.

Over sixty years later, the civil rights movement overturned the disfranchisement processes established in the 1902 Constitution and implemented by subsequent state laws and registration/voting procedures.

In 1964, enough states ratified the 24th Amendment to abolish the poll tax in Federal elections. That same year, the US Supreme Court ruled in Harper v. Virginia State Board of Elections that the 14th Amendment blocked use of the poll tax to limit the electorate in state elections.

The Virginia General Assembly adopted a new restriction on non-white voters in 1963, anticipating that the poll tax would be eliminated. In a special session, the legislators passed a law requiring voters for Federal offices to file a certificate of election at least six months to each Federal election.

The residency requirement would have provided a tool to suppress non-white voters in Federal elections. The US Supreme Court ruled in 1965 that a residency mandate would make the electorate that was eligible to vote in Federal elections smaller than the electorate that was eligible to vote for the Virginia House of Delegates. That restriction violated Article I, Section 2 of the US Constitution.14

The US Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and Virginia had to relax its racial barriers to voting. Until 1971, the Constitution of Virginia included a requirement to pass a literacy test in order to register to vote. That was a "device," as described in the Voting Rights Act of 1965, that local officials used to discriminate against non-white voters and suppress their vote.

after the US Congress passed the Voting Rights Act in 1965, the number of non-white registered voters increased dramatically
after the US Congress passed the Voting Rights Act in 1965, the number of non-white registered voters increased dramatically
Source: US Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States (p.26)

The 1965 Voting Rights Act initially applied to the entire state of Virginia because less than 50 percent of persons of voting age voted in the presidential election of November 1964. Section 5 of that law required Federal or court review of any change affecting voting within that "covered area."

Between 1965-2013, the US Department of Justice had legal authority to challenge actions by Virginia jurisdictions that might supress the impact of non-whites on elections.

For example, in 1999 the polling center for the Darvills Precinct in Dinwiddie County burned down. The closest alternative site for a replacement was the Cut Bank Hunt Club, a private facility where most members were African-American. County officials proposed to move the precinct voting site to Bott Memorial Presbyterian Church, a predominantly-white organization at the extreme east end of the precinct.

That church was far from where most African-Americans lived, on the western end of the precinct. The US Department of Justice objected and blocked the shift, citing discriminatory impacts that violated the 1965 Voting Rights Act.15

The law allowed counties/cities/towns within Virginia to terminate or "bail out" from coverage by appealing to a special a three-judge panel, if the jurisdiction could prove that it had not discriminated illegally to restrict access to the electoral process within the last 10 years. Ending oversight reduced legal costs for the jurisdictions for routine decisions related to elections, such as relocating polling places or changing boundaries of voter precincts after redistricting.

Virginia sought to have the entire state freed from Voting Rights Act oversight in 1974, but that effort failed. The first local jurisdiction in Virginia to get bailout approval was the City of Fairfax, in 1997. The last to bail out was the City of Falls Church, which received approval in 2013.

in 1997, the City of Fairfax was able to bail out of oversight requirements in the 1965 Voting Rights Act
in 1997, the City of Fairfax was able to bail out of oversight requirements in the 1965 Voting Rights Act
Source: US Department of Justice, City of Fairfax, Virginia v. Janet Reno (p.7)

Of the 52 consent decrees authorizing bailout, 32 were for different Virginia cities and counties (including their towns). The Shelby County v. Holder decision by the Supreme Court in 2013 ended the requirement for bailout approval.16

32 Virginia jurisdictions bailed out of oversight requirements in the 1965 Voting Rights Act
32 Virginia jurisdictions bailed out of oversight requirements in the 1965 Voting Rights Act
Map Source: Wikipedia, Virginia county locator maps

Disfranchising Convicted Felons and Restoring Their Right to Vote

Property Requirements for Voting in Virginia, 1670-1850

Voting in Colonial Virginia

Voting in Modern Virginia

What Happens If the Vote Ends In a Tie?

Links

References

1. John G. Kolp, "Elections in Colonial Virginia," Encyclopedia Virginia, Virginia Foundation for the Humanities, August 31, 2012, https://www.encyclopediavirginia.org/Elections_in_Colonial_Virginia; Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, pp.36-37, https://books.google.com/books?id=6h0TAAAAYAAJ (last checked December 25, 2017)
2. Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, pp.27-29, https://books.google.com/books?id=6h0TAAAAYAAJ (last checked December 26, 2017)
3. Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, p.9, p.11, https://books.google.com/books?id=6h0TAAAAYAAJ (last checked December 26, 2017)
4. Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, pp.38-41, https://books.google.com/books?id=6h0TAAAAYAAJ (last checked December 26, 2017)
5. "Election of burgesses by whome (1670)," Encyclopedia Virginia, https://www.encyclopediavirginia.org/_Election_of_burgesses_by_whome_1670; Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, pp.33-34, https://books.google.com/books?id=6h0TAAAAYAAJ (last checked December 26, 2017)
6. Beatriz Betancourt Hardy and the Dictionary of Virginia Biography, "George Brent (ca. 1640–by 1700)," Encyclopedia Virginia, Virginia Foundation for the Humanities, March 10, 2016, https://www.encyclopediavirginia.org/Brent_George_ca_1640-by_1_September_1700 (last checked December 27, 2017)
7. Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America, University of Pennsylvania, 1905, pp.27-28, https://books.google.com/books?id=6h0TAAAAYAAJ; "The Virginia Declaration of Rights, June 12, 1776," Library of Virginia, http://edu.lva.virginia.gov/online_classroom/shaping_the_constitution/doc/declaration_rights (last checked December 26, 2017)
8. Howell v. McAuliffe, Virginia Supreme Court, Record No. 160784, July 22, 2016, http://www.courts.state.va.us/opinions/opnscvwp/1160784.pdf; "More Than An Entry In A Register: Local Government Convict Registers," Out of the Box blog by Library of Virginia, May 24, 2018, http://www.virginiamemory.com/blogs/out_of_the_box/2018/05/24/local-government-convict-registers/ (last checked May 28, 2018)
9. "Restoration of Rights," Secretary of the Commonwealth, http://commonwealth.virginia.gov/judicial-system/restoration-of-rights_old/; "Governor McAuliffe’s Restoration of Rights Policy," Commonwealth of Virginia, August 22, 2016, http://commonwealth.virginia.gov/media/6733/restoration-of-rights-policy-memo-82216.pdf (last checked December 26, 2017)
10. Brent Tarter, "African Americans and Politics in Virginia (1865–1902)," Encyclopedia Virginia, https://www.encyclopediavirginia.org/African_Americans_and_Politics_in_Virginia_1865-1902 (last checked May 29, 2018)
11. "May 14, 1869: Message Submitting State Constitutions to a Vote," Ulysses S. Grant, May 14, 1869, transcript posted by University of Virginia Miller Center, https://millercenter.org/the-presidency/presidential-speeches/may-14-1869-message-submitting-state-constitutions-vote (last checked January 15, 2018)
12. Harman v. Forssenius, US Supreme Court, 380 U.S. 528 (1965), https://supreme.justia.com/cases/federal/us/380/528/case.html; Helen A. Gibson, "Felons and the Right to Vote in Virginia: a Historical Overview," The Virginia NewsLetter, Weldon Cooper Center for Public Service, University of Virginia, Volume 91 Number 1 (January 2015), https://ceps.coopercenter.org/sites/ceps/files/Virginia_News_Letter_2015_Vol._91_No_1.pdf (last checked May 28, 2018)
13. "Voting Requirements of the Constitution of Virginia, 1902," Library of Virginia, http://edu.lva.virginia.gov/online_classroom/shaping_the_constitution/doc/constitution_1902 (last checked December 29, 2017)
14. Harman v. Forssenius, 380 U.S. 528 (1965), Justicia, https://supreme.justia.com/cases/federal/us/380/528/ (last checked November 2, 2018)
15. Anita S. Earls, Kara Millonzi, Oni Seliski, Torrey Dixon, "Voting Rights In Virginia: 1982–2006," Southern California Review of Law and Social Justice, Volume 17 Number 2 (Spring, 2008), pp.776-777, https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_Virginia_Macro.pdf (last checked November 2, 2018) (last checked November 2, 2018)
16. "Section 4 of the Voting Rights Act," US Department of Justice, https://www.justice.gov/crt/section-4-voting-rights-act#bailout_list; Anita S. Earls, Kara Millonzi, Oni Seliski, Torrey Dixon, "Voting Rights In Virginia: 1982–2006," Southern California Review of Law and Social Justice, Volume 17 Number 2 (Spring, 2008), https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_Virginia_Macro.pdf (last checked November 2, 2018) (last checked November 2, 2018)


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