The Great Pause Week 94: Restoring the Vote in Tennessee in 1981
I then sued the Tennessee Secretary of State to nullify the felon disenfranchisement law.
Last week I described my foibles and failures attempting to employ federal law in federal courts to throw out bad voting laws installed by Republican cabals in the 70’s and 80’s. As Clements said, history may not repeat, but it rhymes.
Because the feds dismissed the plaintiff’s complaint for failure to state a claim, the many issues raised by Wesley vs. Collins went largely unresolved and this has festered as untidy precedent and the subject of many law review articles.
It did not fester long with me. While it was still on appeal, I paid a call on a close friend, the great law professor and appellate litigator, Lewis Laska, and asked his advice. He and I discussed the possibility of a state case under Tennessee’s constitution. Tennessee has a unique Constitutional history and Laska and I had both previously researched that to fine nuance.
In Tennessee’s original 1796 Constitution all free men over twenty-one years of age, including free black men, were given the franchise, without requirements for property ownership, wealth or literacy. By 1834 Antebellum sentiments had shifted and the right was amended to “Every free white man of the age of twenty-one years.”
Women, slaves, and Indians were still strictly out of luck. Now they were joined by black men. Enfranchisement had lasted just 38 years. Roe v. Wade has been on the books for 48 years. Power shifts.
There is something to be said for the survival strategy of picking as your Vice President someone who is hated by those who might wish you harm. Kennedy’s choice of LBJ is a poignant example of the wrong choice. Likewise Reagan’s choice of G.H.W. Bush. Actual bullets establish my point. Agnew, Gore, Pence, and Kamala Harris were all safe choices. Lincoln’s “Group of Rivals,” “charity for all, malice towards none,” and “bind the wounds” sentiments may have been noble, but they made him a no-brainer (no pun intended) target when he chose Andrew Johnson for his Veep.
After the fall of Fort Donelson on February 15, 1862, the greater part of Tennessee came into the possession of the Union army. President Abraham Lincoln appointed Andrew Johnson to be military governor. For more than two years, Johnson exercised complete and dictatorial control over state government. In 1864, Johnson was nominated to run as Lincoln’s Vice-President, and because he desired to obtain the free electoral vote of his own State, he permitted the Union party to call a political convention. At the 1865 convention, the party passed a resolution, purporting to be a constitutional amendment, which was to have the effect of disenfranchising anyone who had voted for or served in the secessionist government or in the Confederate army. In the presidential election of 1860, before the war, 145,000 votes had been cast in Tennessee. In the first general election in 1865, after the convention, the State’s voters cast only 25,000 votes, about the number of Union army troops occupying Tennessee at the time.
— Gaskin vs. Collins, December 12, 1983.
A pardoned former Confederate soldier sued ( Ridley, 43 Tenn. 569.). Justice Shackelford, writing for the Tennessee Supreme court, lamented:
The elective franchise is not an inalienable right or privilege, but a political right, conferred, limited, or withheld, at the pleasure of the people, acting in their sovereign capacity. Each State may define it in its own Constitution, or empower its Legislature to do so.
This situation was intolerable to a majority of citizens so the Assembly put out the call for a new Constitutional convention and in 1870 that body returned voting rights to most. While instituting a few more pernicious clauses, like residency and poll taxes, it allowed all men to vote regardless of their race or Civil War affiliations. Most importantly, it wrote in this:
Article 1, Section 5:
The election shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction. (Emphasis added)
Stephen Gaskin was convicted on November 11, 1971 of the felony of “manufacturing marijuana.” At that time, it was not an infamous crime. In 1975, he completed his term of incarceration and returned to society with all of his former rights, privileges and immunities restored. In 1981 the local registrar of voters sent him a notice that he was henceforth off the rolls. Tennessee had just passed a law which had the effect of expanding the definition of infamous crimes to include all felonies, and disenfranchising all felons regardless of when they were convicted.
With the Wesley case I described here last week already moving through federal filings, I paid a call on another friend, Richard H. Dinkins, whose prominent Nashville firm, Williams & Dinkins, specializes in civil rights cases and who had personally won the historic settlement of a 43-year old school desegregation case against the Nashville School System. After listening to my case theory in Wesley and now Gaskin, he walked me over to see another civil rights legend, the Reverend C.T. Vivian, organizer of the first sit-ins in Nashville in 1960, the first civil rights march in 1961, and the Freedom Rides. I had not expected that. I was awestruck and a bit too choked to even speak.
Meekly, I explained what I was doing and asked him for any advice. He looked at me a long time and finally said, “Good luck to you.”
That was it. I don’t know if he thought I was just a white honky hippy dabbling in his life’s work or he admired my spunk, but I was on my own.
Gaskin vs. State
My first test of the law, going to Federal Court, sought to enjoin it as ex post facto — elevating the punishment for a crime retroactively. That failed because the court declared Tennessee’s purpose was not to punish anyone, just to reasonably regulate the ballot box, which it had every right to do. Ex post facto did not apply because this was not punishment.
I then sued the Tennessee Secretary of State to nullify the felon disenfranchisement law.
The State process was a different matter. We won in lower court. The State appealed. We briefed, they briefed. It went to the State Supreme Court. The slower Wesley case was still winding its way through to the Sixth Circuit Court of Appeals with the promise of national impact if it won. I was in full court mode, all the while limping along on The Farm’s subsistence budget of one dollar per day per resident. To support trips to the Vanderbilt law library I wrote letters to mailing lists of potential donors asking for gas money. Back then you could do non-profit bulk mailings for about 4 cents per piece, The Farm had a small Davidson press, and 5000 letters could push this work along for another month.
On the day of oral argument I got up early, rinsed the sprouts for my 20-member group home (a minor catastrophe explained in my retelling of this story in Voices from The Farm), fetched my hand-sewn three-piece denim “law suit” in its dry cleaning bag (nod to Suzanne Suarez Hurley), and walked to the motor pool dispatcher to pick up my arranged-for vehicle, which unfortunately was out of service or hijacked into service already and elsewhere. I then frantically looked for a ride and fortunately our Angel-One free neonatal ambulance service was going up to serve greater Metro Nashville that day and could give me a lift. Stork-like, they dropped me at the courthouse steps in my neatly pressed suit and shiny vegan shoes.
My case was second on the docket, to be argued in opposition by William P. Sizer, Asst. Atty. General of the State. I then watched a most amazing ritual as Court was called into session. An elderly black man in white porter dining car jacket came and straightened the chairs at the podium and placed a ledger at one end of the table. Docket sheets were placed at each Justice’s place along the bench. The Bailiff entered and called All Rise. Five white Justices filed in in order of reverse seniority and took their seats. The black porter moved down the bench, offering the ledger for each to sign, again in reverse seniority order.
When my case came up, the Attorney General had the first go. At one point I was so certain I was winning, just listening to him, I failed to suppress a chuckle and was immediately embarrassed for my lack of decorum. When my turn came I was in good form, having seen no surprises and liking the questions that had come from the bench. I wrapped myself in the Ol’ Stars and Bars and whistled Dixie. “Mr. Gaskin is as much entitled to his right to vote after being disenfranchised for a crime he committed in 1971 as he would be had he been a Confederate bugle boy in 1864.” Or words to that effect. Stephen was not really that old, which I think they appreciated.
Writing the unanimous opinion, Justice Drowota said:
It is obvious that the 1870 constitutional convention was comprised of men who had known the injustice of retroactive disenfranchisement and were determined to safeguard themselves and future generations from similar acts of repression. That this right was preserved by constitutional amendment rather than legislative enactment accentuates its importance to the people of the State of Tennessee. We cannot ignore the reasons for which this amendment was adopted without usurping the will of the people who saw fit to include it in our constitution. Accordingly, the finding of the Chancellor, that Article I, Section 5 of the Tennessee Constitution prohibits the General Assembly from retroactively disenfranchising convicted felons who have never been adjudged infamous, is affirmed.
This was a case of first impression for this part of the Tennessee Constitution in the 183 years it had been on the books. When the court read its ruling on December 12, 1983, it gave a Christmas present to more than 200,000 convicted felons in Tennessee, disproportionately young people of color caught up by the fabricated War on Drugs. I was invited to the State Penitentiary and given a framed certificate of appreciation by the inmates. The State was tasked with setting up and administering polling stations inside the walls. Right wing media went ballistic. I was just happy to think an audacious, long-haired hippy might have earned C.T. Vivian’s quiet respect.
The case was only retroactive to convictions before 1981, so by now the vote-suppressing Republicans have the upper hand again and the black population is underrepresented not only in Tennessee but in all the other states where the Civil War had no effect on later voting. Wesley vs. Collins, wrongly decided, remains the law of the land. Other devices are being deployed to wreck the vote, State by State, and Congress is deadlocked by absolute refusal of the GOP-controlled Senate, with its plus-two Manchin/Sinema majority, to pass the John Lewis Voting Rights Act. At least 262 bills were introduced in 41 states this year with the intent to subvert the election process. Of those, 32 have already become law in 17 states.
And so we drift….
As someone who until the present pandemic traveled the world, I have been fortunate to live in many cultures where the color of one’s skin is unremarked; below notice. Many places. I might even say most.
That is as it should be. Skin tone is an infinitesimally small fraction of the genome and meaningless as any indicator of character or social worth. Using it as a tribal symbol is inane. Cancel me for having said that if you will but I am sticking to it.
That it is such a strident holdover from American slavery and genocide today speaks poorly of the USAnian character and our willingness to reconcile our myths with our legacy of ethnic cleansing and other atrocities. With our drone wars — $6 trillion and a million civilian deaths since 2002 — black detention sites, secret prisons, and torture — we are the terrorists. Until we can drop our resistance to collective healing, we will only keep cutting new wounds and salting old ones.
When the pandemic arrived, the US treated WHO the same way it habitually treated staffs of various international human rights agencies, the International Court of Justice, and the UN Rapporteur on Torture. One irony, of course, is that with the seamless transmission of callous, hegemonic, US-first, vaccine diplomacy between Trump and Biden (and steadfast defense of patent rights to prevent end-around runs), waves of new variants are wrecking the American economy, democracy, and place in the world, and may continue doing so for another year or more. The newly-minted legacy of ill will spawned by thoughtless, jingoist, selfish hoarding and willingness to let millions die will fester for much longer.
But it never needs to be that way. It doesn’t have to be.
Peace on Earth. Good Will to All. This is the second of two parts that I will use to close out this, the second year of The Great Pause gifted to us by the Covid pandemic. This memoir is part of a book I am developing with a Russian co-author, Тюрин Глеб, to recall for large literary audience of Russian-speaking youth the story of the hippies, and in particular the relevance of the The Farm to today’s ecovillage and ecosystem regeneration movement, now growing strong across the white frosts of that vast, beautiful, and ever-changing landscape.
The COVID-19 pandemic has destroyed lives, livelihoods, and economies. But it has not slowed down climate change, which presents an existential threat to all life, humans included. The warnings could not be stronger: temperatures and fires are breaking records, greenhouse gas levels keep climbing, sea level is rising, and natural disasters are upsizing.
As the world confronts the pandemic and emerges into recovery, there is growing recognition that the recovery must be a pathway to a new carbon economy, one that goes beyond zero emissions and runs the industrial carbon cycle backwards — taking CO2 from the atmosphere and ocean, turning it into coal and oil, and burying it in the ground. The triple bottom line of this new economy is antifragility, regeneration, and resilience.
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“There are the good tipping points, the tipping points in public consciousness when it comes to addressing this crisis, and I think we are very close to that.”
— Climate Scientist Michael Mann, January 13, 2021.
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Originally published at https://cooldesign.substack.com on December 23, 2021.