Posted by: Cody Brandon on Jul 1, 2020

Journal Issue Date: July/August 2020

Journal Name: Vol. 56 No. 7

The first part of this article, published in the June issue of the Tennessee Bar Journal, chronicled the right to vote in Tennessee from the State’s founding through the Civil War. In that short time, the scope of the franchise changed dramatically: from the liberal grant founded on the frontier spirit of the 1796 Constitution, to a more restrictive focus on race and stability in the 1834 Constitution, and finally to a divisive limitation to Union loyalists in the Civil War amendments. The second part of this article picks up the trail of the franchise after the Civil War, following it to present day.

The Oldest Unamended Constitution

The divisive limitations of the Civil War amendments would not last long. Neither would the instability in the franchise and the government that accompanied them. In 1870, Tennesseans again gathered in convention and adopted a new Constitution. Perhaps the state disagreed with the recent opinions of its Supreme Court characterizing suffrage as a privilege. Or perhaps the people simply changed their minds as onto whom the franchise should be conferred.1 In either event, the new Constitution of 1870 would provide a far more permanent definition of the franchise than either of its predecessors. Though since amended, the foundation laid by this Constitution supports the structure of the franchise in Tennessee today.

In what amounted to a whipsaw after the recent Civil War amendments, the 1870 Constitution broadened the franchise beyond any constitution before it:

Every male person of the age of twenty-one years, being a citizen of the United States and a resident of this State for twelve months, and of the county wherein he may offer his vote for six months next preceding the day of election, shall be entitled to vote for members of the general assembly and other civil officers of the county or district in which he resides; and there shall be no qualification attached to the right of suffrage, except that each voter shall give to the judges of election where he offers to vote satisfactory evidence that he has paid the poll taxes assessed against him for such preceding period as the legislature shall prescribe, and at such time as may be prescribed by law, without which his vote cannot be received. And all male citizens of the state shall be subject to the payment of poll taxes and the performance of military duty, within such ages as may be prescribed by law. The general assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box.2

Whereas in the first Constitution the franchise was centered on frontier ideals of merit, and in the second it was narrowed to provide security, the 1870 Constitution introduced a new theme: those who vote should be those most interested in government. The new Constitution still disenfranchised women and kept the minimum age at twenty-one, but all men were eligible to vote regardless of their race or Civil War affiliations.3 That structure, by itself, would closely resemble the 1796 Constitution. But notice the other restrictions added to the section. A man must (1) be a resident of the state for twelve months and of his county for six months and (2) give satisfactory evidence of his payment of poll taxes.4 Additionally, while not directly tied to the right to vote, the 1870 Constitution incorporated mandatory military service and payment of poll taxes within the same section defining the franchise.5

The heightened focus on residency and payment of taxes evidence the shift toward an interest-based franchise. The new 12-month state residency requirement —added on top of the traditional six-month county residency requirement — provided a second layer of insurance that a man was acquainted with and committed to the state before he could vote. And requiring evidence of tax payment was equivalent to requiring evidence that a voter was contributing to the common effort of government.6 That the Convention saw fit to include compulsory military duty and taxes in the same section confirms its conception of the new franchise as appropriately given to those interested in and contributing to government.

Contemporary decisions of the Tennessee Supreme Court also confirm the new Constitution’s ideals. It explained the age requirement as justified by maturity, ensuring a voter had “sufficiently ripened in mental power to determine for himself the soundness or unsoundness of the measure upon which he is called to vote.”7 The heightened residency requirements were added “to acquaint and identify [the voter] with the wants and interests of the people with whom he proposes to live.”8 The focus on a proposed voter’s interest in the community was perhaps no better exemplified than the court’s 1906 decision of the eligibility of participants at a veterans’ home on federal property to vote. The residents that lived in the home on federal property, the court held, were ineligible to vote even though the home was within the state’s borders.9 But the court held those who resided in the jurisdiction of Tennessee but spent most of their days at the home were considered residents of the state and of Washington County.10 It “[did] not think that one living in Tennessee, spending his evenings and nights at his home with his family, would lose his citizenship and right to vote, by taking all of his meals across the line in Kentucky or in any of the adjoining states near whose lines he might reside.”11The question for the court, when asked who was eligible to vote, had turned to “Who is interested in the community?” The court and the Constitution were now concerned with whether a man paid his taxes, where his home was, and where he kept his family rather than in which army he served or what his race was.

But though the scope and foundations of the franchise changed with the 1870 Constitution, not all thought from the previous era was abandoned. The idea of the franchise as conceived for the public good — rather than private or individual good — persisted. While no longer characterized as a privilege that could be conferred or removed at the will of the people, the court still saw the residency and tax requirements as gates and hurdles justified by their important effect of ensuring an interested electorate. This rationale extended to other “inconveniences” imposed by the legislature. New ballots requiring voters to mark next to a printed name in private — without the assistance or encouragement of partisans at the polls — were “as nothing compared to the rights intended to be protected by that inconvenience, and the pulling, pushing and bribery of ignorant men before and at elections.”12 And a law providing a standard definition of “satisfactory evidence” of tax payment “enable[d] every voter in Tennessee to cast his free and unhindered ballot, and, at the same time, [prevented] the denial to any voter, however low and humble, ignorant or illiterate, of such right.”13 In sum, “[t]he inconvenience to a part of the community must yield to the good of the whole.”14

By the time the 1870 Constitution received its first amendment in 1953, it had become the oldest unamended constitution in the nation.15 But while the constitutional scope of the franchise did not change in over eight decades, the legislature nonetheless began to reshape the franchise in manners indicative of the coming amendments and a new perspective on the franchise. In 1910, the Tennessee Supreme Court held the General Assembly’s adoption of a primary election system did not conflict with the Constitution.16 More important, though, was the court’s rationale. It reasoned that the primary law did not conflict with the Constitution because the suffrage clause applied only “to elections referred to in that instrument and to such offices as may be created by the Legislature.”17 In other words, the constitutional right of suffrage applied only to those elections for offices enumerated in the Constitution and not to any system for choosing party nominees.18 This conclusion was buttressed by the longstanding practice since adoption of the 1870 Constitution of allowing landowning non-residents to vote in municipal elections.19

While the Ledgerwood decision regarding primary elections did not do much to alter the franchise itself, it opened the door for the General Assembly to make smaller changes to the franchise in non-constitutional elections without going through the arduous amendment process.20 As the state’s conception of who was interested in government evolved, Ledgerwood’s narrowing of the suffrage clause allowed for innovations in the franchise. For example, Greene County was allowed to hold a referendum on the issuance of road repair bonds for which the voters were all residents of the county except those living in municipalities with a street tax, and all residents of such municipalities who also owned real estate outside the municipality in the county.21 In such an arrangement, “[a]ll of the class of persons whose property interests were involved in the result of the election, and who were qualified voters of Greene county were thus given a vote.”22 

The General Assembly also attempted to repeal the constitutionally required poll tax and remove payment of the poll tax as a qualification for voting.23 The court was not so receptive to this innovation, holding the act violated the 1870 Constitution.24 In a closely divided opinion, the majority adopted a respect for “the people” reminiscent of the court’s opinions in the Civil War amendment era, holding:

If it be the will of the sovereign people that the time has come to change these or other provisions of the organic law, the way is open, as already suggested, by methods prescribed by that law itself. But such changes, however desirable they may appear to be, must be made in orderly and authorized manner. Until then, neither the Legislature nor the Courts, sworn to observe the Constitution as written, may make or condone such changes.25

Chief Justice Green and Justice Neil, each dissenting, would have adopted the more contemporary trend of deferring to the General Assembly’s authority and license to innovate.26 The opinion is an excellent reminder that no matter the changes to the Constitution or the court, there always lingers a bit of the old thought, pressed into the foundation of the new.

Tennessee’s Pivotal Role in Ratifying the 19th Amendment

The biggest innovation, however — both in the franchise itself and in the state’s developing understanding of stakeholders in government — came with the extension of suffrage to women. Tennessee’s pivotal role as the 36th state to ratify the Nineteenth Amendment27 in the summer of 1920 is well-documented.28 But a year before the ratification of the Nineteenth Amendment, and a few months before the Amendment’s passage in Congress, Tennessee was already moving toward allowing women to vote. With the gap left open by Ledgerwood,29 the General Assembly in 1919 granted women above age 21 the right to vote for electors of president and vice president and for municipal officers and propositions.30 The court upheld the newly expanded suffrage law, remarking that, given the flexibility it possessed in non-constitutional elections, “[t]he Legislature perhaps might confer the power to select such officers upon the women alone.”31

These experiments in voting in non-constitutional elections in the early 20th century signaled another transition was coming to Tennessee’s definition of the franchise. While the 1870 Constitution went unamended until 1953, Tennesseans began formulating new ideas about the franchise long before then. An era that began with a shift in thought about the franchise as belonging to those interested in government would pass with evolving notions of who was actually interested and end with a broadening definition that set the stage for the next iteration of the Suffrage Clause. Learn more about it on the TBA's 19th Amendment Centennial page.

The Mid-Century Amendments

Adoption of the Nineteenth Amendment made the 1870 Suffrage Clause obsolete, at least in part, in 1920. But it was not until 1953 that the General Assembly called a limited constitutional convention and included article IV, § 1 in the call. Delegates to the convention had campaigned on compliance with the Nineteenth Amendment and the elimination of the poll tax, but the question of the voting age also became a central topic at the convention. The change extending the constitutional text to enfranchise women was merely clerical. But the elimination of the poll tax, the debate around the minimum voting age, and a change to residency requirements demonstrated a new attitude in Tennessee toward the franchise.

The new Suffrage Clause adopted by the Convention in 1953 read:

Every person of the age of twenty-one years, being a citizen of the United States, and a resident of this State for twelve months, and of the county wherein such person may offer to vote for three months, next preceding the day of election, shall be entitled to vote for electors for President and Vice-President of the United States, members of the General Assembly and other civil officers for the county or district in which such person resides; and there shall be no other qualification attached to the right of suffrage.33

The new amendment reflected a trend that had been building both in Tennessee and across the country. By removing the poll tax and lightening the residency requirements, the new 1953 amendment was reversing course on the 1870 Constitution’s focus on the participation of interested voters. Across the country, the right to vote was coming to be viewed as universal, belonging fundamentally to all those subject to government.34 Tennesseans were moving in the same direction, and in some sense ahead of the nationwide trend. Poll taxes would not be outlawed by federal law for another decade.35

Voting Age Becomes a Factor

But they were not yet ready to abandon one of the few constants, carried from the 1796 Constitution through all of its successors: the 21-year voting age. The voting age was hotly debated at the convention, and the committee charged with revising the Suffrage Clause initially recommended lowering the voting age.36 Eventually, though, the Convention adopted phrasing more closely resembling the 1870 clause and maintained a 21-year-old voting age.37 

The 1953 amendment was a snapshot of the state in transition. Tennesseans were becoming less concerned with voters’ abilities to demonstrate a stake in government, and the franchise was becoming more universal. But the State still favored some tradition over expansionist proposals, keeping the voting age constant and even actively preserving38 the Ledgerwood-Vertrees exemption of municipal elections.

The final transition to a universal adult franchise was, to some extent, forced by federal law. The Voting Rights Act lowered the voting age to 18 in federal elections.39 And the Twenty-Sixth Amendment, lowering the voting age to 18 in all elections, was adopted in 1971.40 Tennessee was one of five states to ratify the Twenty-Sixth Amendment the day it was proposed by Congress 41 — indication that in the two decades since the 1953 Convention Tennesseans had come to favor an 18-year voting age. But it was not until 1976 that the state decided to bring the Constitution’s text up to speed.42 Debate over the franchise at the ensuing 1977 convention was minimal,43 and the end result was a minor revision that gave us the Tennessee Constitution as it stands today.44 The only substantive change was the removal of all explicit residency requirements in favor of allowing the General Assembly to set the requirements. This change was motivated in part by the pendency of litigation that had the potential to invalidate a residency requirement shortly after it was adopted.45 But with it, the franchise — insofar as it was defined by the Tennessee Constitution — was extended almost universally to all adult citizens.

But Not for Felons

However, one notable class was excluded from the move toward universal adult suffrage: felons. The Constitution still allowed the General Assembly to pass laws excluding from suffrage “persons who may be convicted of infamous crimes.”46  In 1981, the General Assembly expanded the definition of “infamous crimes” to include all felonies and attempted to disenfranchise all felons, regardless of whether they were convicted before passage of the act.47 The court revived the sentiments of the 1870 convention — “comprised of men who had known the injustice of retroactive disenfranchisement.”48 It relied on that Convention’s experience with the Civil War amendments to hold that the Constitution49 would not tolerate a man to be disenfranchised for committing a crime that was not infamous on the day of his conviction.50 Thus, while the modern Suffrage Clause’s text was shaped by the trend toward universal suffrage, it still carried with it the Reconstruction fear of retroactive disenfranchisement.

Conclusion

The Constitution and the court’s franchise jurisprudence today embody a history and combination of changing theories of the franchise. More recent cases have focused on measures historically categorized as laws regarding the “purity of the ballot box” rather than the qualification to vote.51 Perhaps Tennesseans have settled on a final statement of the franchise in the current Constitution. Or, perhaps, we will soon see a new Constitution or amendment, giving new expression to the peoples’ conceptions of who should vote. There are plenty who would encourage a further push toward universal adult suffrage by enfranchising certain felons.52 Some jurisdictions have experimented with lowering the voting age to 16.53 Some advocate a revival of noncitizen voting.55 And significant discussion surrounds suffrage laws dealing with intellectual disability and the mentally ill. Tennesseans’ understanding of the franchise may change in ways that would restrict the right to vote beyond the limits of modern sensibilities,56 but in a manner deemed perfectly suited to a future society. 

The right to vote in Tennessee has changed many times since the first settlers crossed the mountains and struck out in hope of success. But each transformation has carried with it some spirit of the past. The frontier spirit, favoring self-determination, still walks in the modern text, most visibly in the preserved and foremost right to rebel.57 The early nineteenth-century need for stability and protection from outside influence persists in the General Assembly’s prerogative to set residency requirements.58 The Constitution still guards against the post-Civil War fear of retroactive disenfranchisement.59 And the experimental spirit of the early twentieth century has been preserved by the court.60 It is impossible to predict what is next for the franchise in Tennessee’s Constitution and court, except to say that whatever comes next will undoubtedly be shaped by all that has come before. 

CODY N. BRANDON is an assistant attorney general for the State of Tennessee in the Criminal Appeals Division. He is a 2019 graduate of the Marshall-Wythe School of Law at the College of William & Mary and a 2016 graduate of Carson-Newman University. He wishes to express his appreciation to Paige Brandon and Evan X. Tucker for their support and assistance in writing this article. This article represents the opinions of the author and not necessarily those of the Office of the Tennessee Attorney General and Reporter
 

NOTES
1. There is some evidence suggesting the turnaround was prompted by the political aspirations of candidates seeking new voters. See Gaskin, 661 S.W.2d at 867-68 (detailing DeWitt Senter’s successful gubernatorial campaign premised on restoration of “universal suffrage”).
2. Tenn. Const. art. IV, § 1 (1870).
3. Otis H. Stephens, Jr., The Tennessee Constitution and the Dynamics of American Federalism, 61 Tenn. L. R. 707, 711 (1994).
4. Id.
5. Id.
6. See Kuntz v. Davidson County, 74 Tenn. 65, 67 (1880) (holding the poll tax applied to every male inhabitant of the State, including aliens and those ineligible to vote)
7. Cook v. State, 90 Tenn. 407, 16 S.W. 471, 472 (1891)
8. Id.
9. State v. Willett, 117 Tenn. 334, 97 S.W.299, 303 (1906)
10 Id.
11. Id.
12. Id. at 473
13. State v. Old, 95 Tenn. 723, 34 S.W. 690, 692 (1896)
14. Cook, 16 S.W. at 473
15. Lewis L. Laska, Landmarks of Tennessee Law: 1796-1996, 32-JUN Tenn. B. J. 12, 26 (May/June 1996).
16. Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, 1043 (1910).
17. Id.. at 1042.
18. Id.
19. Id.
20. See Tenn. Const. art. XI, § 3 (1870) (requiring amendments to be approved by two-thirds of two subsequent General Assemblies, presented to the people, and approved by a majority of those voting for Representatives; and limiting the proposal of amendments to once in six years)
21. Earnest v. Greene County, 138 Tenn. 442, 198 S.W. 417 (1917).
22. Id. at 418.
23 Biggs v. Beeler, 180 Tenn. 198, 173 S.W.2d 144, 145 (1943).
24. Id. at 147.
25. Id. at 148
26. Id. at 149 (Green, C.J., dissenting) (noting concern that decision of Court violated separation of powers); Id. at 150 (Neil, J., dissenting) (“The court is not the keeper of the conscience of the Legislature; nor can the court by any process known to the law compel the Legislature to perform a plain duty that is imposed upon it by the Constitution.”).
27. U.S. Const. amend. XIX.
28. See, e.g., Paula F. Casey, “Tennessee’s Vote for Women Decided the Nation: The Final Battle,” Tenn. B. J. 20 (Sept./Oct. 1995).
29. Vertress v. State Board of Elections, 141 Tenn. 645, 214 S.W. 737, 739.
30. Id.. at 738 n.1 (noting act was passed April 14, 1919 and signed into law April 17, 1919).
31. Id. at 739-40.
32. Journal and Debates of the Constitutional Convention of 1953, at 219, 624, 628-29,642, 647, 662.
33. Tenn. Const. art. IV, § 1 (1953).
34. See Reynolds v. Sims, 377 U.S. 533, 554 (1964).
35. U.S. Const. amend. XXIV; Harper v. Virginia State Board of Elections, 383 U.S. 663, 666 (1966).
36. Journal and Debates, supra note 78, at 113.
37. Tenn. Const. art. IV, § 1 (1953).
38. Journal and Debates, supra note 78, at 675, 690, 693, 828-29, 834, 846.
39. Oregon v. Mitchell, 400 U.S. 112, 117 (1970) (holding that Congress could lower the federal voting age to eighteen but could not change the voting age for state elections).
40. U.S. Const. amend. XXVI.
41. The Constitution of the United States of America: Analysis and Interpretation (Centennial Edition), 44 n. 18 (Washington, D.C.: U.S. Government Printing Office 2013). Available at https://www.govinfo.gov/content/pkg/GPO-CONAN-2013/pdf/GPO-CONAN-2013.pdf.
42. 1976 Tenn. Pub. Acts, ch. 848.
43. See Tennessee Constitutional Convention Records 1834-1977, Record Group 46, at 17 (June 26,1985) (documenting length of debate as shown by number of archival tapes for various topics at the 1977 Convention).
44. Tenn. Const. art. IV, § 1
45. Journal and Debates of the Constitutional Convention of 1977, Vol. 1 at 426 (October 3, 1977) (comments of Mr. Leech). 46 Tenn. Const. art. IV, § 2.
47. Gaskin, 661 S.W.2d at 866.
48. Id. at 868.
49. Tenn. Const. art. I, § 5.
50. Gaskin, 661 S.W.2d at 868.
51. See, e.g., City of Memphis v. Hargett, 414 S.W.3d 88, 104 (Tenn. 2013); Halbert v. ShelbyCounty Election Commission, 31 S.W.3d 246, 249 n.5 (Tenn. 2000).
52. See, e.g., Alec C. Ewald, “‘Civil Death:’ The Ideological Paradox of Criminal Disenfranchisement Law in the United States,” 2002 Wis. L. Rev. 1045, 1102-07 (2002); Jamie Fellner & Marc Mauer, “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States,” The Sentencing Project, at 17 (Oct. 1998), available at http://www.sentencingproject.org/pubs_05.cfm.
53. Joshua A. Douglas, “The Right to Vote Under Local Law,” Geo. Wash. L. Rev. 1039, 1041 (2017); Vivian E. Hamilton, “Democratic Inclusion, Cognitive Development, and the Age of Electoral Majority,” 77 Brooklyn L. Rev. 1447 (2012).
54. David M. Howard, “Potentical Citizens’ Rights: The Case for Permanent Resident Voting,” 95 Tex. L. Rev. 1393 (2017).
55. See Charles Kopel, “Suffrage for People with Intellectual Disabilities and Mental Illness: Observations on a Civic Controversy,” 17 Yale J. Health Pol’y, L. & Ethics 209 (2017).
56. The development of less universal notions of suffrage may, however, be precluded by current federal law.
57. Tenn. Const. art. I, § 1.
58 .Tenn. Const. art. IV, § 1; Tenn. Code Ann. §§ 2-2-102, -122.
59. Gaskin, 661 S.W.2d at 868.
60. Tenn. Att’y Gen. Op. 18-29 (July 6, 2018).