This article was originally published in the Sep/Oct 2021 issue of San Diego Lawyer Magazine.
By Devinder S. Hans
When enacting new regulations, legislatures sometimes include a so-called “grandfather clause” to permit certain conduct to continue, even when prohibited under the new regulations. Grandfather clauses are often used in land and business regulations, but can also be found in a variety of other contexts. For example, when the California legislature eliminated personal belief exemptions for mandated childhood vaccinations (after a measles outbreak at Disneyland), it “grandfathered in,” for a short period, children who had such an exemption. As common as these clauses are today, the term “grandfather clause” originated for a very specific purpose, and used to refer to literal grandfathers.
Grandfather clauses were a means of insulating whites from mechanisms enacted to disenfranchise Blacks. Ratified in 1870, the Fifteenth Amendment to the U.S. Constitution prohibits infringement of a citizen’s right to vote “on account of race, color, or previous condition of servitude.” During Reconstruction, African Americans voted and held elected office in many Southern states. After Reconstruction, states enacted poll taxes and literacy tests (as well as employing fraud and intimidation) to restrict the franchise. To limit the effect on white voters, grandfather clauses were added, usually exempting anyone eligible to vote before 1867 and their descendants. Jan. 1, 1867 was often chosen as an anchoring date, because the Reconstruction Act of 1867 required Confederate states to grant voting rights to Black men as a condition for being readmitted to the Union.
Most states, possibly to avoid judicial review, enacted short-term grandfather clauses to establish an initial disenfranchisement that was then continued through discretionary enforcement of other laws. In contrast, Oklahoma’s Voter Registration Act of 1910 enacted its grandfather clause as a permanent amendment to the state constitution. Oklahoma required prospective voters to pass a literacy test unless they or an ancestor had been “entitled to vote under any form of government” on or before Jan. 1, 1866. In 1915, the U.S. Supreme Court had little difficulty holding the grandfather clause unconstitutional as an obvious violation of the Fifteenth Amendment. The Court stated, “We seek in vain for any ground which would sustain any other interpretation but that the provision, recurring to the conditions existing before the 15th Amendment, was adopted to restrict voting rights on account of race.”
The Court’s ruling did little to improve voting rights. A New Orleans newspaper stated that the court’s decision was “not of the slightest political importance in the South.” One Richmond newspaper noted that grandfather clauses had already served their purpose. Discretionary enforcement of literacy tests ensured that the purpose of grandfather clauses would continue in practice.
For its part, Oklahoma responded to the ruling by establishing a 12-day window to register to vote for anyone not already registered in 1914. Anyone failing to register during that period permanently lost the right to register. This enactment was not invalidated until 24 years later. Concluding that the new statute was simply another version of the earlier grandfather clause, Justice Frankfurter stated that the Fifteenth Amendment “nullifies sophisticated as well as simple-minded modes of discrimination.”
Although grandfather clauses enabling disenfranchisement were ruled unconstitutional in 1915, more effective mechanisms of disenfranchisement were not curtailed until later. Poll taxes were not abolished until ratification of the 24th Amendment in 1964. Literacy tests were not outlawed until passage of the Voting Rights Act of 1965, first in the South, and then, through later amendments, in the rest of the country.
Devinder S. Hans is an attorney at law.