Shortly after becoming a state in 1907, Oklahoma amended its new Constitution to add a literacy test, but with an odious twist:
“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, on January 1st, 1866, or any time prior thereto, entitled to vote under any form of government,…and no lineal descendant of such person shall be denied the right to register and vote because of his inability to so read and write sections of such Constitution.”
In other words: if you or your father or grandfather could vote before Blacks were allowed to vote, you don’t have to take the literacy test.
If you or your forebears couldn’t vote before Blacks could vote (wink wink), you must take the literacy test (which, incidentally, is designed for you to fail).
Subtle, right?
Other states had similarly blunt-force measures, known as “grandfather clauses.” They—in conjunction with those onerous and subjective literacy tests—were one of the most effective tools in disenfranchising thousands of Southern Black voters, many of whom had voted for decades.
In Oklahoma, Black voters who had previously voted decided to challenge the law.
Specifically, in Guinn v. United States, Black Oklahomans who were kept from registering and voting in the 1910 Oklahoma election challenged the grandfather clause as a violation of the XV Amendment.
The state’s defense was a familiar one: that it had the right to set its own voting standards, and that the clause did “not in terms make any discrimination on account of race, color, or previous condition of servitude.”
Anyone who satisfies the non-racial requirements gets to vote, regardless of race, South Carolina argued, parroting successful state arguments from prior years.
In a rare victory for voting rights back then, the Court was not impressed: “It is true that it contains no express words of an exclusion from the standard…on account of race, color or previous condition of servitude…but the standard itself inherently brings that result into existence since it is based purely upon a period of time before the 15th Amendment, and makes that period the controlling and dominant test of the right to suffrage.”
And with that, the Supreme Court struck down the Oklahoma grandfather clause.
But the crafty Oklahoma legislature wasn’t done.
They responded to this loss (Guinn came down in 1915) by rushing through a new voting law which operated as follows:
1) All voters who had voted in the 1914 election under the prior voting rules were automatically registered to vote in Oklahoma going forward;
while
2) All voters who had not voted in 1914 under the old regime now had the opportunity to register without a literacy test if…wait for it…they registered between April 30 and May 11, 1916(!)
3) Whichever citizens did not register in that 12-day window could not register for the rest of their lives(!).
Outrageous defiance of the Supreme Court, it would seem.
Well, the Court thought so too.
And in the decision Lane v. Wilson, the Court struck down this new voting/registration law as an obvious attempt to defy its prior ruling.
Justice Frankfurter didn’t mince words: “Unfair discrimination was thus retained by automatically granting voting privileges for life to the white citizens whom the constitutional ‘grandfather clause’ had sheltered while subjecting colored citizens to a new burden.”…[The narrow registration window] operated unfairly against the very class on whose behalf the protection of the Constitution was here successfully invoked.”
In other words, the Court told Oklahoma: You used the same damn grandfather clause we struck down to once again protect White voters from a new, stringent standard only applied to Black voters
Frankfurther explained further, in oft-quoted language: “The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination.”
Justice!
Finally.
The Court coming through!
Right?
Not so fast.
In fact, not fast at all.
There’s one fact from Lane that dilutes the justice achieved.
The case was decided in 1939(!).
The challenge wasn’t brought until 1934.
Remember, Oklahoma’s original grandfather clause was struck down in 1915.
(Lane, the plaintiff, was not included on the registration list in 1916.)
So the Oklahoma legislature’s blatant defiance of the Court’s order in 1915 succeeded in disenfranchising Black voters, and poisoning the politics of the state, for decades longer.
Despite the historic win, many Black Oklahomans would be locked out of their own state’s democracy for the rest of their lives
And when it came to the legislators who thumbed their nose at the Court, Black citizens would be irrelevant to them for their entire careers.
Injustice, all that time.
Makes me ill every time I think about it.
But it’s a pattern of successful delay and defiance that will repeat itself for years to come….
And I’m thinking about the Oklahoma grandfather clause right now—feeling that same feeling I feel whenever I teach it—because of what happened in South Carolina this past week.
You may have seen it. And I was glad to see Chris Hayes, among others, explain it.
A gerrymandered map in South Carolina, struck down as illegal in Jan 2023, was ordered into place THIS WEEK because the US Supreme Court took too long to issue an order after taking the case in May 2023!
How history rhymes.
I had the same sinking feeling when I read that news. In fact, my first thought was that they should use the previous maps instead of the new ones already judged unfair. I’m sure the old ones are also unfair, but at least people knew where to vote. Your vast knowledge of the arcane history of voting rights at the various states is impressive. Jim Crow lives!
SCOTUS is slow-walking the South Carolinian gerrymandering case. The egregious behavior of both the court and those who drew the lines to support a sitting Rep is unforgivable. If they allow another election to proceed, with the unfair maps (already judged so by the State courts) it is further proof of the judicial corruption we are all facing. Sigh.