Disfranchisement

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Disfranchisement

The removal of the rights and privileges inherent in an association with a group; the taking away of the rights of a free citizen, especially the right to vote. Sometimes called disenfranchisement.

The relinquishment of a person's right to membership in a corporation is distinguishable from a motion, which is the act of removing an officer from an office without depriving him or her of membership in the corporate body.

In U.S. law, disfranchisement most commonly refers to the removal of the right to vote, which is also called the franchise or suffrage. Historically, states passed a variety of laws disfranchising poor people, insane people, and criminals. Most conspicuously, the Jim Crow Laws passed by Southern states effectively disfranchised African-Americans from the late nineteenth century until well into the 20th century.

During Reconstruction, following the Civil War, African-Americans in the South briefly enjoyed voting privileges that were nearly equal to those of whites. However, beginning around 1890, legally sanctioned disfranchisement occurred on a huge scale. For example, during the years directly following the Civil War, African-Americans made up as much as 44 percent of the registered electorate in Louisiana, but by 1920, they constituted only 1 percent of the electorate. In Mississippi, almost 70 percent of eligible African-Americans were registered to vote in 1867; after 1890, fewer than 6 percent were eligible to vote. There were similar decreases in the percentages of elected black officials in all Southern states.

Although the Fifteenth Amendment to the Constitution, passed in 1870, asserts 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 established laws and practices that circumvented these provisions. They employed disfranchisement devices such as poll taxes, property tests, literacy tests, and all-white primaries to prevent African-Americans from voting. On the surface, such laws discriminated on the basis of education and property ownership rather than race, but their practical and intended effect was to block African-Americans from the polls. Legal devices called grandfather clauses allowed poor and illiterate whites to avoid discriminatory tests on the grounds that they or their ancestors had previously had the franchise. When discriminatory laws were combined with the violence and intimidation directed at potential black voters by white hate groups such as the Ku Klux Klan, the silencing of the African-American political voice was almost complete.

Despite Supreme Court rulings striking down discriminatory measures as early as 1915 (see, e.g., Guinn v. United States, 238 U.S. 347, 35 S. Ct. 926, 59 L. Ed. 1340 [1915]), Southern states continued to bar African-Americans from voting for most of the twentieth century. Only with the passage of the Voting Rights Act of 1965 (42 U.S.C.A. § 1973 et seq.) did twentieth-century African-Americans in the South finally reach the polls in significant numbers. For example, in 1965, only 19 percent of nonwhites in Alabama and 7 percent of non-whites in Mississippi were registered to vote. Four years later, after passage of the voting rights act, the percentages of non-white registrants in Alabama and Mississippi had jumped to 57 percent and 59 percent, respectively.

Although blatant disfranchisement is somewhat rare in current elections, claims of racism still occur. During the 2000 presidential election, which was one of the most heavily contested and highly controversial in history, thousands of minority voters claimed that their votes were not counted due to minor errors on their ballots. Federal election law leaves the particular voting procedures in presidential elections to the states, so the states use a variety of techniques to count the ballots. Many states used a hole-punch method, where machines count ballots based upon holes punched in ballot cards. If the machine could not read the card, which may occur if the hole punch is incomplete or if more than one hole is punched, the vote was not counted. This was particularly problematic in the state of Florida, which was the subject of a national controversy surrounding the proper vote count. During the initial election on November 7, 2000, and during subsequent recounts during the weeks following the election, many votes were not counted due to errors, and many minority voters claimed that they cast many of the discounted votes. Minority groups have pressured Congress to enact stricter standards in order to prevent this occurrence in future elections.

Other forms of disfranchisement, including the disfranchisement of criminals, remain controversial. Since the early 1990s, all but three states prohibited imprisoned offenders from voting. Thirty-five states disfranchise offenders on Probation or Parole, and fourteen disfranchise ex-offenders for life. Because a disproportionate share of convicted criminals are non-white, some have argued that such laws constitute a racially discriminatory voting barrier that is as pernicious as poll taxes and literacy tests. Many state criminal disfranchisement laws date back to the Reconstruction era, and such laws were often targeted at offenses for which African-Americans were disproportionately convicted. For this reason, some groups have called for the reform or removal of criminal disfranchisement laws.

Further readings

Belknap, Michael, ed. 1991. Civil Rights, the White House, and the Justice Department. New York: Garland.

Reitman, Alan, and Robert B. Davidson. 1972. The Election Process: Voting Laws and Procedures. Dobbs Ferry, N.Y.: Oceana.

Schmidt, Benno C., Jr. 1982. "Black Disfranchisement from the KKK to the Grandfather Clause." Columbia Law Review 82 (June).

Shapiro, Andrew L. 1993. "Challenging Criminal Disenfranchisement under the Voting Rights Act." Yale Law Journal 103 (November).

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

DISFRANCHISEMENT. The act of depriving a member of a corporation of his right as such, by expulsion. 1 Bouv. Inst. n. 192.
     2. It differs from amotion, (q.v.) which is applicable to the removal of an officer from office, leaving him his rights as a member. Willc. on Corp. n. 708; Ang. & Ames on Corp. 237; and see Expulsion.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
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