Monday, October 3, 2011

The Grandfather Clause

For many people, the word grandfather conjures images of family Christmases, bouncing on knees, butterscotch candies, and games of (in my case) euchre, gin rummy, or cribbage. In short, happy images of good times.

The idea of being grandfathered in is usually a good thing, too. If you're grandfathered in, it means that a new rule or regulation does not apply to you; you continue under the previous rules. In the legal documents, the guidelines for grandfathering in existing customers are usually contained in a "grandfather clause." Hence the word grandfathering.

These days a grandfather clause usually means good news, but the original grandfather clause was a blatantly unfair, political, and racist bit of legislature.

In 1870, soon after the Civil War ended, the Fifteenth Amendment extended voting rights to newly freed slaves, stating that

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.

Southern states weren't thrilled with the idea of extending the vote to the vast voice that they had suppressed for hundreds of years, so although they were required to accept this amendment, they put up whatever barriers they could think of to keep blacks out of the voting booths. Those newly freed black men who, in the face of intimidation and possible violence, bravely stepped forward to be heard at the polls were often greeted by newly minted literacy regulations. In order to vote, said the state, a citizen must be able to read and write.

1867 drawing depicting the first vote by Afric...Image via WikipediaBefore the Civil War, many slave states had made it illegal to teach slaves to read and write, so most emancipated slaves were illiterate and therefore unable to pass a literacy test. And even those who were literate were stymied by the biased subjectivity of the official administering the literacy test. After the Civil War ended, literacy tests were therefore an effective way for Southern states to disenfranchise blacks.

Former slaves weren't the only ones who couldn't read and write, though; there were plenty of illiterate whites as well. To allow illiterate whites to vote, state legislatures included a "grandfather clause" that exempted people from the literacy requirement if their forbears had been qualified to vote before the Civil War. In short, if your grandfather had been allowed to vote before January 1, 1866 (before the ratification of the Fifteenth Amendment), then you were allowed to vote, too.

Literacy and other voting requirements, combined with the grandfather clause, effectively allowed illiterate white farmers to vote while denying that right to the men who had once made their farms profitable.

These regulations and grandfather clauses kept blacks from voting for over 40 years. Until . . .

When Oklahoma became a state in 1907, it didn't have a grandfather clause in its constitution, but the legislature quickly amended that constitution to include the law that
No person shall be registered as an elector of this state or be allowed to vote in any election held herein, unless he be able to read and write any section of the Constitution of the state of Oklahoma; but no person who was, on January 1, 1866, or any time prior thereto, entitled to vote under any form of government . . . shall be denied the right to register and vote because of his inability to so read and write sections of such Constitution.

During the 1910 election, some election officials read this to mean that they could outright refuse to administer the literacy test to black men, and therefore refuse them the right to vote. And even when men were given a literacy test, it was so subjective as to be pointless. Voting officials could — and did — rule that the test-taker was illiterate regardless, to the point that at least one black college graduate was denied the right to vote, though it was clear that there was no lawful basis to deny him that right.

People were angry, and rightly so. They had been angry for 40 years. But this time, more powerful people got upset: The U.S. Attorney general brought Oklahoma election officials Frank Guinn and J.J. Beal up on criminal charges. To the surprise of many, they were convicted in 1911.

West face of the United States Supreme Court b...Image via WikipediaThey appealed their conviction all the way to the U.S. Supreme Court, which heard Guinn v. the United States in 1913. In 1915, the Court handed down its unanimous ruling: Not only did the Court uphold the convictions, but it struck down Oklahoma's grandfather clause as unconstitutional. Oklahoma had to take the grandfather clause out of its constitution, and Alabama, Georgia, Louisiana, Maryland, North Carolina, and Virginia were forced to alter similar regulations.

So the next time you're grandfathered into a program, and images of happy times with your own grandfather come to mind, remember that the grandfather clause of a century ago was linked with images of state-sponsored racial discrimination and oppression.

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