The following is a fascinating guest post by my UC Irvine colleague, Brook Thomas, Chancellor’s Professor in the English Department:

Albion W. Tourgée is best known as Homer Plessy’s attorney. Less well known is how poignantly he speaks to today’s fears of a contested election, alleged voter fraud, and documented voter suppression.

Also a novelist, in 1887 he published “Eighty-Nine depicting an unresolved election in 1888 engineered by a coalition of the Order of the Southern Cross and northern monopolists, led by a figure based on J.D. Rockefeller. Intent on controlling the labor problem in the North and the labor/race problem in the South, the conspirators manage to have the responsibility for electing a president devolve to Congress and then exploit a loop-hole in the Twelfth Amendment to “prevent a quorum in either branch” (403). In the chaos following the failure to elect a president and a vice-president, the South peacefully secedes and subordinates blacks leaving monopolists to dominate workers in the remaining states.

Tourgée hoped his dystopian romance would help Republicans defeat Democrats in 1888. He especially loathed incumbent president Grover Cleveland who had hired a substitute during the Civil War, opposed Reconstruction, and named a former Confederate to the Supreme Court. But even though Democrats created a home for white supremacists, Tourgée knew that his own party was primarily responsible for the growing disparity of wealth in the country. When Republicans won the presidency and majorities in both houses of Congress, Tourgée addressed the link between racial and economic injustice by advocating legislation designed to combat the suppression of black voters.

As a former carpetbagger judge in North Carolina, Tourgée knew the problems with the February 1871 Enforcement Act. Paradoxically proving impossible to enforce, the act, nonetheless, fed white Southerner complaints about “bayonet rule” and federal interference into local affairs. Thinking pragmatically, Tourgée recommended leaving local elections to the states. But thinking imaginatively, he drew on Article I, section 4, of the Constitution that allows Congress to alter the “Times, Places, and Manner of holding elections for Senators and Representatives” and proposed giving the federal government, not states, control of federal elections.

  Undercutting complaints about federal interference in local government, his proposal was designed to keep African Americans voting nationally. He was confident the South would go along, because under Section II of the Fourteenth Amendment failure to comply would lessen representation in Congress and the electoral college.

Tourgée’s plan had the support of the speaker of the House and the Colored Men’s Convention. But Senator Henry Cabot Lodge insisted on his own bill. Some historians praise Lodge’s Federal Election Bill as the last attempt at Reconstruction. But Tourgée pointed to its numerous flaws. First, it was modeled on the failed 1871 act. Second, federal supervision would kick in only if enough locals registered a compliant. Those doing so in the South would risk their lives. Third, Lodge thought that he could overcome southern resistance by arguing that, like the old act, it was national, not sectional, in its reach. In an essay defending his measure, he wrote that it was “designed especially to meet the notorious frauds . . . in the great cities of the North.” (“The Federal Election Bill,” North American Review [Sept 1890]: 257-73.)  That was true. Lodge hoped to gain Republican votes from blacks in the South and to reduce Democratic votes by disqualifying allegedly illegal votes of northern immigrants. Today we blame the South for literacy tests, but Lodge was proud of Massachusetts’ literacy requirement enacted in the 1850s to minimize the Irish immigrant vote. Later he sponsored a bill requiring a literacy test for naturalization that passed over Woodrow Wilson’s veto.

Tourgée was also concerned about illiterate voters. But rather than disqualify voters, he proposed wiping out illiteracy through federal aid to education. Over objections to federal interference into states’ control of education, he cited national security. As one of his fictional black characters put it, “The ignorant vote is a source of actual peril.” Nonetheless, Republicans went with Lodge’s bill, which failed in the Senate when eight Republicans traded their votes for Democratic support on economic measures: a steep tariff and currency issues. Although Tourgée was a protectionist, he refused to consider the “American hog of more importance than the American citizen.”

The need to protect the American citizen was especially pressing because 1890 witnessed the Mississippi Constitutional Convention that effectively disenfranchised black voters through a poll tax and an arbitrary literacy test. Tourgée denounced the convention as the worst abuse of state power since secession. As the economist Michael Clemens notes in his forthcoming The Walls of Nations, Tourgée also pointed to the economic motivation of disenfranchisement by quoting a member of the convention: “If the negro is permitted to engage in politics, his usefulness as a laborer is at an end. He can no longer be controlled or utilized and the prosperity of the State will be destroyed.” Tourgée had a different view of what prosperity entailed and reminded Northerners that they would sell more of their products in the South only if workers—black and white—had more purchasing power.

In the midst of this controversy, Tourgée proposed an innovative interpretation of the Fifteenth Amendment’s prohibition on using race to deny or abridge “the right of citizens of the United States to vote.” (“The Right to Vote” The Forum 9 [March 1890]: 78-92.)   When the amendment was proposed in 1869, he argued, it could not have applied to non-citizens allowed to vote in thirteen states. Nor was suffrage inherent in US citizenship, since women couldn’t vote. Thus, the phrase must refer to a vested, not an abstract, right. Under Reconstruction measures the right to vote had been conferred to black males in the South. On this basis, he suggested that the Fifteenth Amendment prohibited denying black male citizens a right they had already been granted.  

Tourgée’s interpretation did not prevail, but, as another of his fictional characters put it, we should never forget “what the law ought to be, in trying to find out what it was.”