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GOVT 2306
Suffrage in Texas
Key Terms: Suffrage . Registration . Qualified Voters . Electors .
Absentee Voting .
http://elections.gmu.edu/Turnout_2008G.html
In this set of slides we look at the nature of suffrage in the state.
What is suffrage anyway?
“the right to vote, especially in a political election.”
We will look at Article Six of the Texas Constitution – which deals
with suffrage – as well as the various related issues associated
with the vote that are raised in it.
What’s the big deal about suffrage anyway?
Universal adult suffrage is considered to be an essential component of democracy. The ability to exclude certain populations from the vote is an effective way to ensure that
they are kept powerless.
Remember that the US Constitution originally fully gave the states the
ability to determine who could vote in US elections, and did not intervene at all in who could vote in state and local elections until well after the Civil War,
if not until the mid 20th Century.
Here’s the relevant language in the US Constitution – Article One, Section
Two:
The House of Representatives shall be composed of Members chosen every second Year by the
People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the
State Legislature.
If the state you lived in allowed you to vote in elections for that
state’s House of Representatives, then you could vote in elections for
the US House of Representative.
This is a reflection of the fact that the colonies each established their
own rules for voting, some were more expansive than others, but
each did not interfere in the choices made by the others.
Click here for Voting Rights on the Eve of the Revolution
Also:
Voting in Early AmericaWho Voted in Early America?
Evolution of DemocracyVoting Rights Timeline
Beginning after the Civil War – when the national government began to increase its
powers over the states – amendments were added to the US Constitution which
stated that the states could not use certain criteria to deny its citizens (who were
American citizens too) the right to vote.
This did not state that the right to vote was absolute though.
These amendments were
15th – race, ethnicity, previous condition of servitude
19th – gender24th – inability to pay a poll tax
26th – minimum voting age of 18
Note the language in each amendment:
15th Amendment: “The right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of
servitude.”
LOC: Primary Documents
19th Amendment: “The right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any State on account of sex.”
24th Amendment: The right of citizens of the United States to vote in any primary or
other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative
in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or
other tax.
26th Amendment: 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’s worth pointing out that two traditional criteria used to restrict the right to vote have not been made illegal under the US
Constitution: religion and property ownership.
Remember that Texas was populated by people who were largely denied suffrage in
the eastern states.
As we will see below, other criteria can still be used to deny the right
to vote, so the states still have some discretion in this matter.
Trivia – Texas didn’t officially ratify the 24th Amendment until 2009.
The national government further expanded its ability to place limits on the ability of states to conduct elections with complete discretion in both the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Each of these were intended to ensure that elections laws in the states were
made to comply with the equal protection clause of the 14th
Amendment. States could not use discriminatory practices to minimize
the power of minorities.
They’ll be more on each of these below where appropriate.
A quick look at Texas history.
What did previous Texas Constitutions says about suffrage?
The Texas Constitution of 1836:
General Provisions
General Provisions: “SEC. 1. Laws shall be made to exclude from
office, from the right of suffrage, and from serving on juries, those
who shall hereafter be convicted of bribery, perjury, or other high crimes and misdemeanors.”
The 1845 Constitution of Texas
Article III Section 1 - 3
SEC. 1. Every free male person who shall have attained the age of twenty-one years, and who shall be a citizen of the United
States, or who is, at the time of the adoption of this constitution by the Congress of the United States, a citizen of the republic of
Texas, and shall have resided in this State one year next preceding an election, and the last six months with the district,
county, city, or town in which he offers to vote, (Indians not taxed, Africans, and descendants of Africans, excepted,) shall be
deemed a qualified elector; and should such qualified elector happen to be in any other county situated in the district in which
he resides at the time of an election, he shall be permitted to vote for any district officer: Provided, That the qualified electors
shall be permitted to vote anywhere in the State for State officers: And provided further, That no soldier, seaman, or marine, in the army or navy of the United States, shall be
entitled to vote at any election created by this constitution.
SEC. 2. All free male persons over the age of twenty one years, (Indians not taxed, Africans, and descendants of Africans, excepted,) who
shall have resided six months in Texas immediately preceding the acceptance of this
constitution by the Congress of the United States, shall be deemed qualified electors.
SEC. 3. Electors in all cases shall be privileged from arrest during their attendance at elections, and in going to and returning from same; except
in cases of treason, felony, or breach of the peace.
The 1861 Constitution of Texas
Suffrage is described in Article III Section 2
All free male citizens of this State, as defined in the preceding section, over the age of twenty-one years, who shall have resided in this State one year next preceding an election, and the last six months in the district, county, city
or town in which they offer to vote, shall be deemed qualified electors; and should any such qualified elector
happen to be in any other county, situated in the district in which he resides at the time of an election, he shall be permitted to vote for any district officer; and qualified
electors shall be permitted to vote anywhere in the State for State officers; provided, that no soldier, seaman or marine in the regular army or navy of the Confederate
States of America, shall be entitled to vote at any election created by this Constitution.
The 1866 Constitution of Texas
Suffrage is described in Article III, Section 1:
SECTION 1. Every free male person who shall have attained the age of twenty-one years, and who shall be a citizen of the United
States, and shall have resided in this State one year next preceding an election, and the last six months within the district,
county, city or town in which he offers to vote, (Indians not taxed, Africans and descendants of Africans excepted,) shall be deemed a qualified elector; and should such qualified elector
happen to be in any other county situated in the district in which he resides at the time of an election, he shall be permitted to
vote for any district officer; provided, that the qualified electors shall be permitted to vote anywhere in the State for State officers; and provided further, that no soldier, seaman or marine, in the army or navy of the United States, shall be
entitled to vote at any election created by this Constitution.
SEC. 2. Electors in all cases shall be privileged from arrest during their
attendance at elections, and in going to and returning from the
same, except in cases of treason, felony or breach of the peace.
Note that while slavery had ended, suffrage had yet to be extended to
the now freed males slaves.
Note the that the voting rights of this population – and other minorities - would continue to be a source of conflict in the
state.
The 1869 Constitution of Texas
Article VI Right of Suffrage
(note that suffrage now has its own separate article)
Every male citizen of the United States, of the age of twenty-one years and upwards, not laboring under the disabilities named in
this Constitution, without distinction of race, color or former condition, who shall be a resident of this State at the time of the
adoption of this Constitution, or who shall thereafter reside in this State one year, and in the county in which he offers to vote sixty days next preceding any election, shall be entitled to vote for all officers that are now, or hereafter may be elected by the people, and upon all questions submitted to the electors at any election; provided, that no person shall be allowed to vote, or
hold office, who is now, or hereafter may be disqualified therefor, by the Constitution of the United States, until such
disqualification shall be removed by the Congress of the United States; provided, further, that no person, while kept in any
asylum, or confined in prison, or who has been convicted of a felony, or who is of unsound mind, shall be allowed to vote or
hold office
This Constitution – mandated by the US government as a condition of sending representatives back to
Congress – contained language denying the ability of the state to restrict the vote from people on
the basis of color.
Here is to original language concerning suffrage (Article VI) in the Texas Constitution of 1976:
SECTION 1. The following classes of persons shall not be allowed to vote in this State, to wit:
First--Persons under twenty-one years of age. Second--Idiots and lunatics. Third--All paupers supported by any county. Fourth--All persons convicted of any felony, subject to such exceptions as the Legislature may make. Fifth--All soldiers, marines and seamen, employed in the service of the army or navy of the United States.
SEC. 2. Every male person subject to none of the foregoing disqualifications, who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, and who
shall have resided in this State one year next preceding an election, and the last six months within the district or county in
which he offers to vote, shall be deemed a qualified elector; and every male person of foreign birth, subject to none of the
foregoing disqualifications, who, at any time before an election, shall have declared his intention to become a citizen of the United States, in accordance with the federal naturalization
laws, and shall have resided in this State one year next preceding such election, and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector;
and all electors shall vote in the election precinct of their residence; provided, that electors living in any unorganized
county, may vote at any election precinct in the county to which such county is attached, for judicial purposes.
SEC. 3. All qualified electors of the State, as herein described, who shall have resided for six months
immediately preceding an election within the limits of any city or corporate town, shall have the right to vote
for mayor and all other elective officers; but in all elections to determine expenditure of money or
assumption of debt, only those shall be qualified to vote who pay taxes on property in said city or
incorporated town; provided, that no poll tax for the payment of debts thus incurred, shall be levied upon
the persons debarred from voting in relation thereto.
SEC. 4. In all elections by the people the vote shall be by ballot, and the Legislature shall provide for the
numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and
preserve the purity of the ballot box; but no law shall ever be enacted requiring a registration of the voters of
this State.
SEC. 5. Voters shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during
their attendance at elections, and in going to and returning therefrom.
Click here for the Texas State Law Library’s look at
the history of Article VI.
Lets walk through the current language of Article 6. Suffrage.
Sec.1. CLASSES OF PERSONS NOT ALLOWED TO VOTE.
(a) The following classes of persons shall not be allowed to vote in this
State:
(1) persons under 18 years of age;
(2) persons who have been determined mentally incompetent by a court, subject to such exceptions as the Legislature may make; and
(3) persons convicted of any felony, subject to such exceptions as the Legislature may make.
(b) The legislature shall enact laws to exclude from the right of
suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.
What about mental incompetence?
Here is clarifying language – sort of – from the Texas Election Code.
A court must decide that someone is mentally incompetent and is
disqualified from voting.
If you are feeling ambitious:
- Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters
- MODERNIZING STATE VOTING LAWS THAT DISENFRANCHISE THE MENTALLY DISABLED WITH THE AID OF PAST SUFFRAGEMOVEMENTS
Many states – though not all – have restrictions on the ability of felons to vote. In some states felons never lose the right to vote and may vote absentee while in
prison, in others voting rights are restored after incarceration or parole is over, in
others voting rights are never restored.
Click here for a comparison of different states.
Felons in Texas regain the right to vote once their parole and
probation is over.
The question about whether felons should be able to vote is
controversial. Here are some websites that weigh in on the issue
one way or the other.
ProCon.org: Felon Voting Felony DisenfranchisementNCSL: Felon Voting Rights
Project Vote: Felon Voting Rights NPR: Should Former Felons . . .
Felons' Voting Rights Could Impact 2012 Election
Click here for a story about prison-based gerrymandering.
Are prisons placed in certain districts in order to enhance the
political strength of those districts?
The constitution used to limit voting by “idiots and lunatics” and “all
paupers supported by any county.”
Commentary from Grits for Breakfast and a clarifying letter from a past
Texas Secretary of State.
The original Texas Constitution also restricted: “All soldiers, marines
and seamen, employed in the service of the army or navy of the
United States.”
This has since been repealed.
As mentioned above, the impact of the section has been limited by several amendments that have
been added to the US Constitution which have added criteria that the states cannot use to deny suffrage.
No state can deny the right to vote on the basis of race, gender the inability to pay a poll tax, and being 18, 19 or 20 years old.
But if you read through the history of voting, you’ll note that many clever
mechanisms had been used to do just that, especially regarding race. These practices were intended to disenfranchise voters at
the state level, that were being granted the franchise at the national level.
Controversies revolve around policies that indirectly restrict
other populations from voting, or place barriers that makes it less
likely that they vote, or minimize their ability to be represented equally if they do in fact vote.
Texas used many of these methods.
- Literacy tests- Poll taxes
- the White Primary
Contemporary debate exists over whether other practices are also argued to have a similar effect
GerrymanderingVoter ID Laws
Voter registration requirements were also intended to suppress the
likelihood that certain groups would in fact vote.
These practices were argued to violate the equal protection clause of the 14th
Amendment, but constitutional challenges in the late 19th and early 20th centuries
were struck down by the Supreme Court.
It would not be until the 1950s (and the Brown v Board decision) that the equal protection clause would be given teeth.
Texas elections laws are commonly challenged and often wind up in
the Supreme Court.
The constitutionality of the Texas White Primary was successfully
challenged in 1944 in Smith v. Allwright. The case came
out of Harris County.
The Democratic Party had successfully argued previously that is was a private organization and
could select who participated in its events, including primary
elections.
The court ruled that the primary election was a state action, and the
state could not deny equal protection of the laws to its
citizens.
A more recent challenge:
Justices’ Texas Redistricting Ruling Likely to Help G.O.P
.
Access to the polls can be limited directly – by stating that a
particular type of person cannot vote – or indirectly – by
establishing other rules and procedures that have the same
effect.
Two relevant terms: Disparate Treatment
Disparate Impact
Disparate treatment refers to discrimination that occurs deliberately
because someone is a member of a protected class. In this case, it occurs
because a law states that a particular type of person cannot vote. The amendments added to the US Constitution that protect certain classes explicitly deny this type of
restriction.
Disparate impact refers to the fact that certain voting practices have a disproportionate impact on certain populations, without any statement
that it intends to do so.
But proving that this impact exists can be difficult. Is the disparate result
caused by the law in question or by some other factor?
The Texas Attorney General’s office has challenged a series of US
Justice Department rulings against the Texas’ election laws by arguing that these rules cause no harm to
protected classes.
The Civil Rights Act and the Voting Rights Act were each written in
order to secure the rights established in the 14th and 15th
Amendments.
Title I of the Civil Rights Act of 1964 addressed the arbitrary (discriminatory) use
of literacy tests to deny the right to vote to minorities.
The Voting Rights Act expands on the mission of the Civil Rights Act
by prohibiting the “states from imposing any ‘voting qualification
or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote
on account of race or color.’"
The most significant part of the VRA is Section 5 which establishes
the requirement that certain states have any law related to voting
“pre-cleared” by a panel of federal judges in order to determine that
the law will not limit the voting strength of minorities.
The VRA applies to any state election law or activity that might
have a disparate impact on the likelihood that different
populations vote, or on any similar activity that has a similar impact on the ability of minority populations to be represented fairly in elected
offices.
The federal government was given oversight authority – through the
Justice Department – over the states as a whole, but specifically
certain states that had a history of voter suppression, and could be expected to continue to do so.
When challenged, the state has the burden of proof to show that their
new law does not impede n the voting rights of minorities.
Texas was – and continues to be – one of those states.
The Attorney General’s office has been attempting – consistently –
to have this requirement annulled.
Texas is a “covered jurisdiction” which means that any changes to voting laws has to be pre-cleared by the Department of Justice in
order to ensure that the changes do not dilute the voting strength of
minorities.
Current controversy:
Voter ID laws
see below
Sec. 2.
QUALIFIED ELECTOR; REGISTRATION; ABSENTEE
VOTING.
(a) Every person subject to none of the disqualifications provided by Section 1 of this article or by a law enacted under that section
who is a citizen of the United States and who is a resident of this State shall be deemed a qualified voter; provided, however, that before offering to vote at an election a voter shall have registered, but such requirement for registration shall not be considered a qualification of a voter within the meaning of the term "qualified voter" as
used in any other Article of this Constitution in respect to any matter except qualification and
eligibility to vote at an election.
(b) The Legislature may authorize absentee voting.
(c) The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under
adequate penalties all undue influence in elections from power, bribery,
tumult, or other improper practice.
Key Terms
Qualified VoterRegistration
Absentee Voter
The Texas Election Code (Section 11.002) contains the
following information regarding what “qualified voter” means:
§ 11.002. QUALIFIED VOTER. In this code, "qualified voter" means a person who:
(1) is 18 years of age or older; (2) is a United States citizen; (3) has not been determined mentally incompetent by a final judgment of a court; (4) has not been finally convicted of a felony or, if so convicted, has: (A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or (B) been pardoned or otherwise released from the resulting disability to vote; (5) is a resident of this state; and (6) is a registered voter.
Current controversy:
How do you determine who is qualified to vote in a way that does
not create a disproportionate burden on protected populations?
The recent national controversy over Voter ID laws – and in our case that
over the law passed in the 82nd Session – concerns whether it is a legitimate
attempt to ensure that voters are “qualified” meaning citizens of the US, or a means of creating a barrier which
makes it less likely that certain populations – the poor for example –
are less likely to vote.
For some comparison:
NCSL: Voter Identification Requirements by state
.
At the heart of the Voter ID controversy is concern over
whether a photo ID is necessary in order to demonstrate that the
person who is qualified to vote on paper is the same person who
presents themselves to the precinct officers and requests to
vote.
Currently, proof can include official mail sent to the person at their
registered address. But this does not have a photograph.
Does this invite fraud? What’s the proof? Does requiring a photo ID
place a disparate burden on minority voters?
The poor are less likely to have photo identification, and obtaining
one can be costly.
Does this make photo ID requirements a type of poll tax?
How much voter fraud is there anyway?
The Brennan Center for Justice thinks there is very little. The
Heritage Foundation thinks it is common.
Texas Attorney General Greg Abbott argues that voter fraud in Texas is a problem, Politifact says
his claim is half true.
Controversy: Are efforts to combat voter fraud really voter suppression in disguise?
Registration Requirements
Note that the constitutional language states that qualified voters must register in
order to be able to vote.
Voter registration has a mixed history. On one hand it was an attempt to clean up elections.
Voters did not always have to register to vote, they could just show up at a poll and vote.
Corruption was common in the 19th Century during the heyday of party machines. But voter
registration was also an effective way to disenfranchise voters – especially new arrivals.
The simple purpose of voter registration is to ensure that the
person who has registered to vote at a particular address can only
vote at the precinct location designated for that address, and
nowhere else.
Every state has the right to establish its own registration rules.
NYT Topics: Voting Rights.Vote411.org.
State Voter Registration Rules.
Question: How strict or loose should registration requirements be? How
aggressively should people be able to register voters, especially poor voters? Do high registration requirements suppress
minority participation?
Click here for the controversy about ACORN. Click here for one man’s drive to reach out to
the 600,000 unregistered voters in Harris County.
Registration rates vary based on race, class, age and ethnicity.
The poor, lower educated and members of minority groups
(especially Latinos) are less likely to register to vote than most
Americans.
Southwest Voter Registration Education Project is an interest group that attempts to increase Latino registration and
participation.
Here is a report regarding problems with voter registration in the 2000 elections. Did problems with
registration sway the election?
Washington state wants to allow people to
register to vote through Facebook.
Is this too easy for Texas?
Texas has low rates of registration.
Click here for turnout and registration figures from 1970 to
the present.
For Info related to Texas:
- Texas Voting -
Requests for Voter Registration Applications
In Texas, the voter registration deadline is 30 days before the election. Some states allow for
same day registration.
Additional fact: In Texas one only registers to vote. One does not
register to vote as a member of a political party.
The actual registration process is overseen by the County Tax
Assessor, who also serve as voter registrars.
Here’s a link to all County Voter Registration Officials in the State
.
Brazoria County voter registration figures
.
Harris County voter registration figures
.
Sec. 2a.
VOTING FOR PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTORS AND
STATEWIDE OFFICES; QUALIFIED PERSONS EXCEPT FOR RESIDENCE
REQUIREMENTS.
(a) Notwithstanding any other provision of this Constitution, the Legislature may enact laws and provide a method of registration, including the time of such registration, permitting any person who is qualified to vote in this State except for the residence requirements within a county or
district, as set forth in Section 2 of this Article, to vote for (1) electors for President and Vice
President of the United States and (2) all offices, questions or propositions to be voted on by all
voters throughout this State.
(b) Notwithstanding any other provision of this Constitution, the Legislature may enact laws and
provide for a method of registration, including the time for such registration, permitting any person (1) who is qualified to vote in this State except for the residence requirements of Section 2 of this Article, and (2) who shall have resided anywhere within this State at least thirty (30) days next preceding a General Election in a presidential election year, and (3) who shall have been a qualified voter in another state immediately prior to his removal to this State or would have been eligible to
vote in such other state had he remained there until such election, to vote for electors for President and Vice
President of the United States in that election.
(c) Notwithstanding any other provision of this Constitution, the Legislature may enact laws and provide for a method of
registration, including the time for such registration, permitting absentee voting for electors for President and Vice President of the United States in this State by former residents of this State
(1) who have removed to another state, and
(2) who meet all qualifications, except residence requirements, for voting for electors for President and Vice President in this
State at the time of the election, but the privileges of suffrage so granted shall be only for such period of time as would permit a
former resident of this State to meet the residence requirements for voting in his new state of residence, and in no case for more
than twenty-four (24) months.
Sec. 3.
MUNICIPAL ELECTIONS; QUALIFICATIONS OF VOTERS.
All qualified voters of the State, as herein described, who reside within the limits of any city or corporate town, shall have the right to vote for Mayor and all other elective
officers.
If you can vote in a state election, you can vote in a city election.
Sec. 3a.
BOND ISSUES; LOANS OF CREDIT; EXPENDITURES; ASSUMPTION OF
DEBTS; QUALIFICATIONS OF VOTERS.
When an election is held by any county, or any number of counties, or any political sub-division
of the State, or any political sub-division of a county, or any defined district now or hereafter
to be described and defined within the State and which may or may not include towns, villages or
municipal corporations, or any city, town or village, for the purpose of issuing bonds or
otherwise lending credit, or expending money or assuming any debt, only qualified voters of the
State, county, political sub-division, district, city, town or village where such election is held shall
be qualified to vote.
Sec. 4.
ELECTIONS BY BALLOT; NUMBERING, FRAUD, AND PURITY OF ELECTIONS; REGISTRATION OF
VOTERS.
In all elections by the people, the vote shall be by ballot, and the Legislature
shall provide for the numbering of tickets and make such other
regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the
Legislature shall provide by law for the registration of all voters.
People in Texas vote by ballot.
Ballots in Texas are notoriously long. Here’s a report that the
Harris County ballot is the longest in the nation. This is mostly due to the number of judges that
are up for election.
Is the ballot too long? Is it too confusing? Does it allow voters to make intelligent decisions about
who they vote for? Do people end up simply voting for names that
seem familiar? Does it encourage people to simply voter straight
party ticket?
Sec. 5.
PRIVILEGE OF VOTERS FROM ARREST.
Voters shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest
during their attendance at elections, and in going to and
returning therefrom.
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