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** A second window aside called by the
She-philosopher.com Studies page, entitled
“The Missing Historical Context: Anglo-American
Gun Laws & the Original Intent of the Second Amendment” **
First Published: 5 July 2020
Revised (substantive): 26 May 2023
A N O T E O N
Anglo-America’s first representative institution, the Virginia House of Burgesses
The Principles of Universal Suffrage and of Full Representation in 1620s–1650s Virginia
The word “burgess” derives from “borough.” Boroughs were the original electoral districts in the early 1600s, before Virginia was divided into counties in 1634.
The first legislative assembly in Anglo-America sat at Jamestown, Virginia in 1619. The representatives of the people (burgesses) were first elected by townships, and then by plantations or settlements, with every plantation or settlement entitled to as many representatives as the inhabitants thought proper to elect. Thus, the General Assembly “holden the 16th day of October, 1629” included 47 Burgesses:
• “ Imps. ffor the plantation at the colledge ”:
“Leftn’t. Thomas Osborne, Mathew Edlowe.”• “ ffor the necke of land ”:
“Serit. Sharpe.”• “ ffor Shirley Hundred Island ”:
“Chene Boise, John Browne.”• “ for Shirley Hundred Maine ”:
“Mr. Thomas Palmer, John Harris.”• “ ffor Mr. Henry Throgmorton’s plantation ”:
“William Allen.”• “ ffor Jurden’s Journey ”:
“William Popkton.”• “ ffor Chaplaines Choise ”:
“Walter Price.”• “ ffor Westover ”:
“Christopher Woodward.”• “ ffor Flowerdieu Hundred ”:
“Anthony Pagett.”
(Flowerdew Hundred was the 80,000-acre estate of Sir George Yeardley, governor of Virginia from 1618–1621, who “implemented the great reforms of 1619,” including establishment of the first popularly-elected representative assembly and the apportionment of land to individual owners, thus ending the Virginia Company’s monopoly on landholding, in hopes of encouraging more rapid settlement. Yeardley’s Flowerdew Hundred, a model of the diversified plantation with its corn and iron mills, was spared during the “Indian Massacre” of 1622, in which a third of the Virginia colony’s population was killed (347 deaths), and Yeardley was able to supply much-needed corn to the survivors (one thousand bushels in January 1623 alone). But such public service was invariably at odds with the oligarch’s private interest: characterized as a “right worthie Statesman, for his own profit,” Yeardley was accused of exploiting servants and denying them freedoms “that Englishmen liked to consider as their birthright” in his ruthless quest for personal aggrandizement.)• “ ffor James Citty ”:
“Mr. Menefie, Mr. Kingsmell.”• “ ffor Paces Paines’s ”:
“L. Willam Perry, John Smyth.”• “ ffor the other side of the water ”:
“Capt. John West, Capt. ffellgate.”• “ ffor Pasbehay ”:
“Thomas Bagwell.”• “ ffor the necke of land ”:
“Richard Brewster.”• “ ffor Archer’s Hope ”:
“Theodore Moysee, Tho: Doe.”• “ The plantations between Archer’s Hope and
Martin’s Hundred ”:
“Mr. John Utie, Richard Townsend.”• “ ffor Hogg Island ”:
“John Chew, Richard Tree.”• “ ffor Martin’s Hundred ”:
“Tho. Kinston, Tho. ffawcett.”• “ ffor Mulbury Iland ”:
“Tho. Harwood, Phettiplace Clause.”• “ ffor Warwicke river ”:
“Christ. Stokes, Tho. Ceely, Tho. fflint, Zachary Cripps.”• “ ffor Warosquoyacke ”:
“Capt. Nath’l Basse, Richard Bennett, Robert Savin, Tho. Jurdain.”• “ ffor Nuttmegg Quarter ”:
“William Cole, William Bentley.”• “ ffor Eliz: Citty ”:
“Left. Thomson, Mr. English, Mr. Adam Thorowgood, Mr. Rowlston, John Browning, John Dowman.”• “ ffor the Easterne shoare ”:
“noe burgesses did appear.”
The boroughs of Jamestown, Henrico, Bermuda Hundred, and others, sent their members to the assembly under a radical system of representation whereby “all persons inhabitting in this collonie that are freemen” were eligible — indeed, required (or face a fine) — to vote for burgesses. This unique practice of universal male suffrage for a while extended the vote to all freeman inhabitants of early colonial Virginia, regardless of landed wealth, social status (servants were considered freemen once their indenture concluded), or race (an unknown percentage of African-Americans residing in Virginia were freemen, and thus qualified for the franchise, as did free Native Americans, especially Christian Indians, residing within the Anglo-American settlements).
From the beginning, “a ready Conveniency” of voting was an American priority, and early on enshrined by statute:
No sheriff to compell any man to go off the plantation where he lives to choose burgisses.
(Act XIX, as passed “At a Grand Assembly 6th January, 1639,” during the reign of Charles I, with Sir Francis Wyatt as governor)
Absentee ballots were allowed at first to facilitate voting by those without the means to travel distances to vote, but by mid-17th-century, securing the vote in Virginia had become a problem. “Divers inconveniencies” had ensued from the “disorderly and illegal election of Burgesses, by subscribing of hands contrary to the warrant directed for the sayd election,” and in the fall of 1646, the Virginia assembly passed Act XX, stipulating that no more “hand writing shall be admitted” (in lieu of a voice vote) and that any freeman who failed to attend, in person, at the time and place appointed for an election (“unles there be lawfull cause for the absenting himselfe”) would be fined 100 pounds of tobacco — about one-eighth the amount of tobacco one laborer could produce in a year. This act was “Virginia’s most liberal suffrage law” (Wilcomb E. Washburn, The Governor and the Rebel: A History of Bacon’s Rebellion in Virginia, 200n55), with freemen — including “covenanted servants” (i.e., still under contract) — now mandated to vote.
WHEREAS divers inconveniencies are likely to ensue by disorderly and illegal election of Burgesses, by subscribing of hands contrary to the warrant directed for the sayd election, by which means it alsoe happeneth that few or none doe appeare personally according to summons, Be it therefore inacted, That noe election shall be made of any Burgesse or Burgesses but by plurality of voices, and that no hand writing shall be admitted: Be it alsoe futher inacted, That what freemen soever, haveing lawful summons of the time and place for election of Burgesses, that shall not make repaire accordingly, Such person or persons unles there be lawfull cause for the absenting himselfe shall forfeit 100 lb. of tob’o. [tobacco] for his non appearance, ffreemen being covennt. [covenanted] servants being exempted from the said fine, to be levyed by distresse in case of refusall, And is to be disposed of towards the defraying of the Burgesses charges in the county.
(Act XX, as passed “Att a Grand Assembly begunne at James Cittie the 5th day of October, 1646,” during the reign of Charles I, with Sir William Berkeley as governor)
To get an idea of just how radical this founding American commitment to expanded voting rights truly was, it’s worth remembering that even the Levellers — originally a political party which arose during Charles I’s reign, but later used more broadly to describe radical republicans, revolutionaries, and egalitarians who would level all differences of position or rank among men (as described in a news sheet from 1647, “They have given themselves a new name viz. Levellers, for they intend to sett all things straight, and rayse a parity and community in the kingdom.”) — did not pursue an enlarged suffrage. “[I]n the 17th century, wage labor was considered a form of slavery, so much so that the Levelers excluded wage workers from the franchise, as they did not consider them free men.” (Silvia Federici, “The Great Caliban: The Struggle Against the Rebel Body,” 10n10) (Click/tap here for note comparing the urban-based Levellers with the rural-based “True Levellers” known as Diggers. Neither populist movement sought universal suffrage, as did the early Virginians.)
Given this founding commitment to universal male suffrage, Virginians’ answer to election fraud was to focus on punishing fraudsters, not suppresssing/subverting the popular vote (as we’re engaging in now). Rather, our 17th-century founding fathers instituted electoral reforms intended to ensure the highest possible voter turnout. Subsequent acts guaranteeing the integrity of a convenient electoral process imposed increasingly large fines on those who tampered with the vote (scil. illegal voting carried a “pennalty of four hundred pounds of tobacco and cask,” while fraudulent counting/reporting of the vote by the sheriff “shall incurr the pennalty of 10000 lb. of tob’o”).
In its original sense, a freeman described a man who is personally free (scil. a man who is not a slave or serf). In later usage, the personal merged with the political, and a freeman came to mean a man who is politically free (scil. a man enjoying the rights and liberties of a free society, as opposed to a tyrannical regime or totalitarian rule).
The generality of free settlers in Virginia prior to the English Revolution (1640–1660) were people of
... modest means, who sold all they had in order to finance their removal to a colony. Other migrants who were unable to pay their passage signed indentures to serve for a set number of years (usually four to seven) in exchange for their transportation. These individuals were at best landless laborers who took ship across the Atlantic after migrating within England in search of work. Some servants did not freely sign indenture contracts but were sent to labor in the plantations because their homelessness or petty crimes had brought them to the attention of the authorities. So although the colonies did not boast the top tiers of the English social hierarchy, they did receive some persons from the bottom, the poorest of the poor. Bound servants migrated to all colonies, though the Chesapeake and the Caribbean islands received most of the very destitute, who worked in the fields. In most places, laborers who survived their indentures could expect to receive land.
(Carla Gardina Pestana, The English Atlantic in an Age of Revolution, 1640–1661, 20–21)
In Virginia, free settlers who owned land could enjoy a measure of personal autonomy reserved in England for a relatively small portion of the population. This led to the emergence of “a local landowning class that balked at the need for subservience to the powerful proprietors and companies” in the mother country, and aspired to control local government (C. G. Pestana, 23–24). Despite the relatively compressed social structure in the colonies of the English Atlantic in the first half of the 17th century (“the great men with interests in the plantations rarely visited, much less took up residence”), early opportunities for upward mobility among landless laborers in the Chesapeake region — becoming landholders, if they survived their indentures, and entering into local leadership — were closing off by 1640. And laws abridging the right of suffrage, or prescribing the qualifications of the members of Virginia’s House of Burgesses, were subsequently passed beginning in 1654–5.
During the English interregnum, the commonwealth of Virginia experimented with limiting the franchise by placing qualifications on voters (restricting the right of suffrage to “all house keepers whether ffreeholders, lease holders, or otherwise tenants,” and to one person in a family) and on their elected representatives (restricted to “persons of knowne integrity and of good conversation and of the age of one & twenty yeares”):
BE it enacted by this present Grand Assembly that all Burgesses shall be sumoned and elected in manner hereafter expressed, That is to say, that the severall and respective sherriffs shall within ten dayes after the receipt of such writts as they shall receive to that purpose cause the same to be published and by giving notice of the same from house to house by the sherriff or his deputy to all persons interested in elections, which he is to doe ex officio: And then and there also to publish and declare the certain day of the week and moneth for chooseing Burgesses to serve in the Assembly for all accustomed places in the severall countyes and parishes respectively.
That at the day and place of elections the sherriffs shall take view of the said elections, and before the sitting of the Assembly make returne into the secretary’s office, att James Cittie, of the persons then and there elected, by subscription and of the major part of the hands of the electors; and that the sherriff who shall wittingly or willingly make any false return or neglect his duty shall incurr the pennalty of 10000 lb. of tob’o [tobacco].
That the persons who shall be elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity and of good conversation and of the age of one & twenty yeares — That all house keepers whether ffreeholders, lease holders, or otherwise tenants, shall onely be capeable to elect Burgesses, and none hereby made uncapable shall give his subscription to elect a Burgesse upon the pennalty of four hundred pounds of tobacco and cask to be disposed of by the court of each county where such contempt shall be used: Provided that this word house keepers repeated in this act extend no further then to one person in a ffamily.
(Act VII, as passed by the “Grand Assembly held att James Citty” on 31 March 1655)
Reaction to this disenfranchisement was immediate, and a year later, at the next legislative session, this act was amended, lifting its qualifications on voters, and restoring the right of suffrage to all free men, in keeping with the republican principle, no taxation without representation:
WHEREAS we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections, Therefore it is enacted by this present Grand Assembly, That soe much of the act for chooseing Burgesses be repealed as excludes freemen from votes, Provided allwaies that they fairly give their votes by subscription and not in a tumultuous way, and it is further provided by this act that the rest of the act of March, 1654, concerning choosing Burgesses (this clause only excepted) be and remain in full force, any act provided to the contrary notwithstanding.
(Act XVI, as passed by the Grand Assembly on 27 March 1656)
The Virginia commonwealth’s voting Act VII of March 1655, as amended by Act XVI of March 1656 (restoring the ancient usage of all freemen voting), was then reenacted (Act XCIII) as part of the comprehensive revisal undertaken by the provisional government, in March 1658, of all previous “acts of Assembly of this country ... formerly in force” which, “through multiplicitie of alterations and repeales are become so difficult, that the course of justice is thereby obstructed and those that are by the lawes intrusted with power to execute them, may by such their uncertainety be drawne to comitt unwilled errors.” The following Act XCIII is thus especially noteworthy for its careful restatement, after “makeing a dilligent review of all the acts formerly in force,” that the right of suffrage was to be exercised by all free men residing in the colony (and its retention of the qualifications for persons to be elected).
The Election of Burgesses.
BEE it enacted, by this present Grand Assembly, That all Burgesses shall be summoned and elected in manner hereafter expressed, (that is to say,) That the severall and respective sherriffes shall within tenne daies after the receipte of such writtes as they shall receive to that purpose cause the same to be published & by giveing notice of the same from house to house by the sherriffe or his deputie to all persons interrested in elections, which hee is to do ex officio and then and there alsoe to publish and declare the certaine daie of the weeke and moneth for chooseing Burgesses to serve in the Assembly, for all accustomed places in the severall counties, and parishes respectively, That at the day and place of election the sherriffe shall take view of the said election, and before the sitting of the Assemblye to make returne to the secretaries office at James Cittie of the persons then and there elected by subscriptions of the major parte of the hands of the ellectors, And that the sherriff who shall wittinglie or willinglie make any false returne or neglect his duty shall incurr the pennaltie of ten thousand pounds of tobacco: That the persons who shall bee elected to serve in Assembly shall be such and no other then such as are persons of knowne integrity, of good conversation and of the age of one and twenty yeares, And all persons inhabitting in this collonie that are freemen to have their votes in the election of Burgesses, Provided they do not in tumultuous manner, but fairly give their votes by subscriptions as aforesaid.
(Act XCIII, as passed by the Grand Assembly “held at James Cittie” on 13 March 1658)
It was not until an act of 1670 (after the restoration of England’s Stuart monarchy, and the reinstatement of Virginia as a royal colony) that Virginia’s early commitment to a universal right of male suffrage was again confined — this time with the usual property qualification, limiting the franchise to freehold inhabitants (those who possessed a freehold estate, and thus, it was assumed, would put the interests of property owners first & foremost).
WHEREAS the usuall way of chuseing burgesses by the votes of all persons who haveing served their tyme are ffreemen of this country who haveing little interest in the country doe oftner make tumults at the election to the disturbance of his majesties peace, then by their discretions in their votes provide for the conservasion thereof, by makeing choyce of persons fitly qualifyed for the discharge of soe greate a trust, And whereas the lawes of England grant a voyce in such election only to such as by their estates real or personall have interest enough to tye them to the endeavour of the publique good; It is hereby enacted, that none but ffreeholders and housekeepers who only are answerable to the publique for the levies shall hereafter have a voice in the election of any burgesses in this country; and that the election be at the courthouse.
(Act III, as passed in October 1670 by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)
In 1676, Charles II further enforced this voter qualification with Article II of his instructions to the governor of Virginia, Sir William Berkeley, directing “You shall take care that the members of the assembly be elected, only by FREE HOLDERS, as being more agreeable to the custome of England, to which you are as nigh as conveniently you can to conform yourselfe.”
As explained in the assembly’s Act III of October 1670, the problem of propertyless men who “make tumults at the election” was the primary impetus for once more limiting the privilege of voting to freeholders and housekeepers:
That the problem of disorder at the polls was a real one is suggested by the fact that three counties had protested the influx of criminals into the colony at this time as a danger to the security of the colony, and six months before the 1670 act was passed the Virginia council forbade the entry of criminals (Thomas Ludwell to Lord Arlington [?], Apr. 29, 1670 ...). In the light of these circumstances, as [Philip Alexander] Bruce has remarked, “the General Assembly’s action in restricting the suffrage appears to have been neither unwise nor unjust” (Bruce, Institutional History, II, 412–413). Since [Governor] Berkeley allowed all freemen [not just property holders, as legislated in 1670] to vote in the election to the assembly of June 1676, there seems little reason to assume that he was a violent opponent of liberal voting laws.
(Wilcomb E. Washburn, The Governor and the Rebel: A History of Bacon’s Rebellion in Virginia, 201n55)
But then, as now, election violence was not exclusive to an electorate “wher six parts of seaven at least are Poore Endebted Discontented and Armed” (Sir William Berkeley, letter to Thomas Ludwell, 1 July 1676). In Restoration England, the prospect that the propertied voters would reelect as MP for Bath the indomitable Puritan crusader, William Prynne — “twice convicted for sedition in the 1630s ... who had built a ‘mountain’ ... of invective against Charles I between 1643 and 1648” — to the Cavalier Parliament, so alarmed those in power that “In September 1661 Prynne’s supporters were even kidnapped in a mayoral election to prevent them from voting” (William Lamont, ODNB entry for “Prynne, William (1600–1669), pamphleteer and lawyer,” n. pag.).
Nonetheless, as a consequence of the return to universal male suffrage in 1676, the Virginia assembly of June 1676 (mistakenly dubbed “Bacon’s Assembly,” and the democratic reforms passed at the session, “Bacon’s Laws”) was “much infected” by the grievances driving the pluto-populist uprising of 1676 known as Bacon’s Rebellion.
The commissioners sent [by the king, Charles II] to investigate the causes of the rebellion reported in 1677 that “such was the Prevalency of Bacon’s Party” that the people chose “instead of Freeholders, Free men that had but lately crept out of the condition of Servants ... and such as were eminent abettors to Bacon, and for faction and ignorance fitt Representatives of those that chose them.” One of the assemblymen voted out of office at this time was George Jordan. Jordan wrote to Colonel Francis Moryson, then one of Virginia’s agents in England and later one of the commissioners sent to Virginia, that “the giddy people ... have hardly Chosen one fitt well byased man for the Countryes peace: nor any of frendship with the Honorable Governor [Sir William Berkeley] by which unhapy Accident I am put with all the rest of our dear freinds ... out of the house....”
Berkeley himself wrote later that “but eight of the Burgesses ... were not of his [Bacon’s] faction and at his devotion....” Isaac Allerton, a prominent figure in northern Virginia, noted that “the Southerne Counties sent Burgesses, proportionable to their factious and Rebellious humours and a considerable partie of the Burgesses, were of his [Bacon’s] side apparently enough....” Colonel Edward Hill, in answering the post-rebellion grievances against him in May 1677, asserted that Thomas Blayton was “Bacon’s great engin” in the June Assembly and that James Minge, also one of Hill’s accusers and clerk of the assembly, was “another [of] Bacon’s Great friends in formeing the lawes” in the June Assembly.
These opinions would seem to support the conventional assumption that Bacon was the leader of a radical political reform movement which attempted to correct the abuses of Sir William Berkeley’s government. However, nothing could be further from the truth. Least of all should one consider the reformers in the June Assembly as organized by Bacon or acknowledging his leadership. What is to be kept in mind is that Bacon’s “cause” was not a scheme of political reform, but a crusade for extirpating the Indians.
(Wilcomb E. Washburn, The Governor and the Rebel: A History of Bacon’s Rebellion in Virginia, 50–51)
Bacon’s Rebellion had commenced in May 1676 with Bacon’s unauthorized Occaneechee campaign, during which his army of frontier militiamen and their officers killed “only friendly Indians”: “He had destroyed not one of the Indians defined as an enemy by the March Assembly.” (W. E. Washburn, 46) But, as Brent Tarter’s study of the “substance and the language of the county grievances, with their complaints about the conduct of local officials that are echoed in many other documents of the time” makes clear, the “fighting that began when outlying settlers took matters into their own hands in the face of perceived threats from the Indians then spread throughout the colony and became a rebellion in which hundreds or thousands of people participated for reasons that had little or nothing directly to do with the threat from the Indians.” (B. Tarter, 34–35) Populist grievances had been building for years, and were directed primarily at local Virginia officials — “not at royal officials or even at the old governor” (B. Tarter, 34).
Fine modern scholarship on seventeenth-century Virginia’s social history indicates that during the final years of the seventeenth century and into the first decades of the eighteenth century the tobacco planters ruled their households and their colony rather like the commonalty of Virginia in the 1670s charged that the justices of the peace had dominated the counties. In their households and in their tobacco fields, those men ruled as they believed they were entitled to rule, and they governed the colony as if they believed they were entitled to govern it. Other scholarship on the development of the slave economy suggests that economic, commercial, and agricultural considerations, not primarily the ease of regulating laborers, as [Edmund S.] Morgan in part suggested, motivated the planters’ subsequent rapid shift from indentured to enslaved labor. The laws that their representatives in the General Assembly enacted exempted them from most of the restraints on how they managed their enslaved black laborers, legal and contractual restraints that governed and had governed their management of their white indentured and paid laborers, a population that in the latter years of the century was a declining proportion of all of the colony’s laborers.
In the planters’ patriarchy that emerged into full flower in the decades following Bacon’s Rebellion, whether as a consequence of it or merely as a chronological coincidence, authority of all kinds was conspicuously concentrated: in the hands of the heads of households; in the hands of plantation patriarchs; in the hands of the self-perpetuating groups of men who sat on the parish vestries and county courts; in the hands of the influential men who held public office as clerks, surveyors, and customs officers, men who collected large fees and often served for life; and in the hands of the members of the governor’s Council who received their lifetime appointments from the Crown.
The political and social institutions and practices of Virginia in the 1670s were strong enough to survive Bacon’s Rebellion unchanged, even if they could not always control or repress aspiring or frustrated white men who resented overbearing elites or whose own failings or ill fortunes prevented them from joining the propertied and prosperous part of the population. The political institutions and practices also survived, largely intact, the Stuart crackdown on colonial governments during the fifteen years following Bacon’s Rebellion, even if in the long run they could not prevail in the planters’ attempt to escape [the English] Parliament’s navigation acts and stricter controls over colonial commerce.
Sir William Berkeley had preserved and strengthened the central institution of representative government, the General Assembly that had been formed in 1619, and therefore his legacy contained within it the essence of republican government, but it was in no way a democratic legacy, and it did not extend to local government. Social and political stratification persisted, and the increased reliance of the great planters on enslaved laborers amplified that stratification. There may be a chicken-and-egg problem in attempting to sort out whether the political and economic cultures of Berkeley’s Virginia made the creation of the slave economy possible or whether the slave economy shored it up and allowed it to flourish. Either way, that was the origin of the Old South.
(Brent Tarter, “Bacon’s Rebellion, the Grievances of the People, and the Political Culture of Seventeenth-Century Virginia,” 35–36)
Of note, it was not until 1723 that racial exclusions were applied to the universal franchise for freeman or freeholder:
... through the recommendation of the Board of Trade and the discovery of a planned black insurrection, a law was passed declaring that “no free negro, mullato, or indian whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever.”
(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 258)
In contrast, women freeholders (along with freeholders who were Catholic recusants or minors under 21 years of age, then known as “infants”) were “disabled” from voting in 1699 (during the reign of King William), and again in 1705 (during the reign of Queen Anne). With a freeholder loosely defined by Virginia statute as “every person who hath an estate real for his own life, or the life of another, or any estate of any greater dignity,” it is possible that a significant number of Virginia women who fell into this category (especially widows who were heads of household) sought to exercise the freeholder’s right of suffrage, requiring the legislature to amend state statutes regulating elections in 1699.
An act for prevention of undue election of Burgeses.
FOR the prevention of undue election of Burgeses to serve in the generall assembly in this his majesties colony and dominion,
Be it enacted by the Governour, Councill and Burgesses of this present generall assembly and the authority thereof, and it is hereby enacted. That no person or persons shall be enabled to give a vote for the election of a burgess or burgeses to serve in the generall assembly hereafter to be caled but those who are freeholders in the respective county or towne for which the said burgess or burgesses shall be elected and chosen, and if any person shall presume to give his vote for the election of a burgess or burgesses in any county or towne who is not a freeholder in such county or towne he shall forfeit and pay the sume of five hundred pounds of tobacco for every such offence. Provided alwayes, and it is the true intent and meaning of this act that no woman sole or covert, infants under the age of twenty one years, or recusant convict being freeholders shall be enabled to give a vote or have a voice in the election of burgeses any thing in this act to the contrary notwithstanding.
And be it further enacted by the authority aforesaid, and it is hereby enacted, That if the election of any burgess cannot be determined upon the veiw [view] by the consent of the freeholders then present but that a poll shall be required for determination thereof, that then the sheriff of such county or in his absence his under sheriff shall proceed to take the poll and shall appoint such number of persons for the takeing thereof as to him shall seem convenient who shall sett downe the names in writeing of each freeholder and for whome he shall poll and every freeholder before he is admited to poll at the same election shall if required by the candidates freeholders or any of them first take the oath hereinafter mentioned or if such person being a Quaquer [Quaker] shall make the declaration prescribed in an act made in the seventh and eighth yeares of the reigne of his present majesty in these words: I, A. B. do declare in the presence of Almighty God, the witness of the truth of what I say — which oath or declaration the said sheriff or in his absence his under sheriff is hereby impowered and required to administer to witt, You shall swear that you are bona fide a freeholder in this county, _______________ or towne of _______________ to the best of your knowledge. And if any of the candidates require a copy of such pole the sheriff or his under sheriff shall as soon as conveniently may be deliver to him or them a true and perfect copy thereof.
And be it further enacted by the authority aforesaid, and it is hereby enacted, That no person or persons hereafter to be elected as a burgess shall directly or indirectly by any ways or means at his or their proper charge before his or their election give, present or allow, to any person or persons haveing voice or vote in such election any money, meat, drink or provision, or make any present, gift, reward or entertainment or any promise, ingagement or obligation to give or allow any money, meat, drink or provision, present, reward or entertainment in order to procure the vote or votes of such person or persons for his or their election to be a burgess or burgesses, and every person or persons soe giveing, presenting or allowing, makeing, promising or engageing any money, meat, drink or provision in order to procure such election being elected shall be disabled and incapable to sit and act as a burgess in that assembly, but that such election shall be void to all intents and purposes as if the said returne or election had never been made.
And be it farther enacted by the authority aforesaid, and it is hereby enacted, That the sherrife or his under sherrife in his respective county shall returne for burgess such as shall be elected and chosen by the majority of the freeholders in manner aforesaid which returne he shall endorse and make in these words, viz: By vertue of this writt I have caused to be legally sumoned the freeholders of my county to meet this day being the _____ day of _______________ at the courthouse of this county being the usuall place for election of burgesses and have given them in charge to make election of two of the most able and discreet persons of the said county ffor theire burgesses who accordingly have elected and chosen A B and C D burgesses for the said county for the next generall assembly to be held at _______________ the _____ day of _______________.
And be it further enacted by the authority aforesaid, and it is hereby enacted, That if it shall soe happen that by the death or disability of any burgesses so elected, a new writt do issue to any county dureing the sessions of an assembly for the election of a burgesse to serve in the said assembly that then it shall and may be lawffull for the sherrife of such county or his deputy who is hereby authorised and required so to do, immediately to cause so many persons as he shall think fitt to give notice to every ffreeholder of the time and place of election which shall be as soon as possible after the receipt of the writt and upon such election so made to make returne thereof upon the back of the writt in manner and forme aforesaid.
And be it further enacted by the authority aforesaid, and it is hereby enacted, That if any sheriffe or his officer before the returne be endorsed upon the writt shall deny and refuse to take the poll in writeing as aforesaid if it be demanded by any candidate or ffreeholder or shall refuse to give copyes of the poll to such candidate or candidates, if by them required, or shall neglect to give legall notice of the election time and place of election, or shall make a false or duble returne of those who are not duly elected for burgesses as aforesaid or shall not make any returne or shall make returne in any other forme then is herein expressed he or they so offending in any of the premises and being thereof lawfully convicted, shall for every such offence forfeit and pay the sum of fforty pounds sterling money, all which paines and forfeitures in this act expressed shall be devided into two equall parts, one moyety thereof to our sovereigne lord the king, his heires and successors towards the better support of the government and the contingent charges thereof and the other moyety to the party agrieved, or if their be no party agrieved to the informer to be recovered with full costs of suit by action of debt, byll [bill], plaint, or information in any court of record in this his majesties collony and dominion wherein noe essoigne protection or wager of law priveledge or imparlance shall be admitted or allowed.
Provided alwayes, And be it further enacted by the authority aforesaid, and it is hereby enacted, That noe person hereafter shall be capable of being elected a member to serve in any assembly who is not of the age of twenty-one yeares, and every election and returne of any person under that age is hereby declared to be null and voyd, any thing in this act to the contrary in any wise notwithstanding.
(Act II, as enacted in April 1699 “At a Generall Assembly, Begun at James Citty the 17th day of April, in the eleaventh yeare of the reigne of our soveraigne lord William the third, by the grace of God of England, Scotland, France and Ireland, king defender of the faith, &c. Annoque Domini 1699”; with Francis Nicolson as governor)
Even so, there may have been some pushback, resulting in the somewhat different language of the “act for regulating the Elections of Burgesses” passed in October 1705:
IV. Provided always, That no freeholder being a feme-sole, or feme-covert, infant, under age, or recusant convict, shall be obliged to appear, and give his or her vote in any of the said elections; neither, if they do appear, shall they have liberty to vote, but shall be excluded therefrom, as though they were not freeholders. And if any person shall presume to give his vote for election of any burgess or burgesses, not being a freeholder in the county or town respectively where he shall give his vote, such person shall forfeit and pay five hundred pounds of tobacco; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of tbe government of this her majesty’s dominion, and the contingent charges thereof; and the other moiety thereof to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint, or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed. And if, upon any suit brought, the question shall arise, whether any person be a freeholder, or not? In such case, the Onus Probandi shall lie upon the defendant. And if the election of any burgess or burgesses cannot be determined, upon the view, by consent of the freeholders, the sheriff, or, in his absence, the under-sheriff shall proceed to take the poll in manner following; to wit, he shall appoint such and so many person or persons, as to him shall seem fit, to take in writing, the name of every freeholder who gives his vote, and the person or persons he votes for; which person or persons so appointed, shall first take an oath for his true and impartial taking the poll; which oath the sheriff, or, in his absence, the under-sheriff, is hereby impowered and required to administer; and then (the sheriff, or under-sheriff, as aforesaid, having provided one or more book or books for that purpose, as occasion shall require) in the court-house of the county, in presence of the several candidates nominated, if they will be present, or such other persons, as (if they think fit) they may appoint to see the poll fairly taken, the person or persons so appointed and sworn as aforesaid, shall take the poll as followeth; to wit, first he or they shall write down the names of all the candidates, every one in a several page of the book, or in a particular column; and then the name of every freeholder coming to give his vote, shall be fairly written in the several pages or columns respectively, under the name or names of such person or persons as he shall vote for: Provided, that no freeholder, who, at such election, shall have given his vote for two persons, shall be permitted to vote or poll for any more. And when every freeholder present, shall have given his vote in manner as aforesaid, (or upon proclamation three times made at the court-house door, if no more freeholders will give their votes) the sheriff, or under-sheriff as aforesaid, shall conclude the poll; and afterwards, upon examination thereof whatsoever person or persons of the candidates shall appear to have the most votes, the sheriff, or under-sheriff as aforesaid, shall return him or them burgess or burgesses; and if two or more candidates shall have an equal number of votes, the sheriff, or under-sheriff as aforesaid, being a freeholder, shall and may return which of them he thinks fit: And every freeholder, before he is admitted to a poll at any election, if it be required by the candidates, or any of them, or any other freeholder in their behalf, shall take the following oath; which oath the sheriff, or under-sheriff as aforesaid, is hereby impowered and required to administer; to wit,
YOU shall swear, that you are a freeholder of the county of _______________ and that you have not been before polled at this election.
And in case any freeholder, or other person, taking the said oath, shall thereby commit wilful and corrupt perjury, and be thereof Convicted; or if any person do unlawfully and corruptly procure or suborn any freeholder, or other person, to take the said oath, in order to be polled, whereby he shall commit such wilful and corrupt perjury, and shall be thereof convicted, he or they, for every such offence, shall forfeit and pay the sum of ten pounds current money; one moiety thereof to our sovereign lady the Queen, her heirs and successors; for and towards the better support of the government of this her majesty’s dominion, and the contingent charges thereof; and the other moiety thereof to him or them that will inform or sue for the same: To be recovered, with costs, in any court of record within this dominion, by action of debt, bill, plaint, or information, in which no essoin, protection, or wager of law, shall be allowed.
(Section IV of Act II, as enacted in October 1705 “At a General Assembly, Begun at the capitol, in the city of Williamsburg, the twenty-third day of October; in the 4th year of the reign of our sovereign lady Anne, by the grace of God, of England, Scotland, France, and Ireland, queen, defender of the faith, &c. Annoq[ue] Dom. 1705”; with Edward Nott as governor)
Although free men of color were not “disabled to vote” until 1723,
XXIII. And be it further enacted, by the authority aforesaid, and it is hereby enacted and declared, That no free negro, mullatto, or indian whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever.
(Section XXIII of Act IV, as enacted in May 1723 “At a General Assembly, summoned to be held at Williamsburg, the fifth day of December, anno domini, 1722, in the ninth year of the reign of our sovereign lord George, by the grace of God, of Great-Britain, France, and Ireland, King, defender of the faith, &c. and by writ of prorogation, begun and holden on the ninth day of May, 1723”; with Hugh Drysdale as governor)
this was simply the culmination of a decades-long legislative process excluding free men of color from the privileges and duties of holding public office and voting. In 1705, the same year women were for a second time prohibited from voting,
... the restriction was passed that no Negroes, mulattoes, and Indians “bear any office, ecclesiasticall, civill or military, or be in any place of public trust or power” in Virginia. Violators of this restriction were liable to a fine of £500 current money and an additional £20 of the same currency for each month illegally in office.
(W. S. Robinson, Jr., “The Legal Status of the Indian in Colonial Virginia,” 257)
But the attacks on the political (and property) rights of free men of color dated back further than this, to the Stuart Restoration. In 1670, as Virginia fully embraced slavery and slavery came to have a black face, white supremacy was written into law by the same assembly which restricted the suffrage to a propertied elite: free men of color in Virginia were prohibited from directly governing the white man with the statute mandating that “Free negroes & Indians not permitted to buy Christian servants, but may [buy] those of their own nation.”
Noe Negroes nor Indians to buy christian servants.
WHEREAS it hath beene questioned whither Indians or negroes manumited, or otherwise free, could be capable of purchasing christian servants, It is enacted that noe negroe or Indian though baptised and enjoyned their owne freedome shall be capable of any such purchase of christians, but yet not debarred from buying any of their owne nation.
(Act V, as passed in October 1670 by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)
The once destabilizing force of religious conversion was no longer the great equalizer.
But then, it never really had been. The hypocrisy surrounding Christian identity in Virginia was readily apparent well before 1670, when the growing black presence in Virginia drew legislators’ attention. According to Sir William Berkeley’s account of the Virginia commonwealth in 1671, its total population was then 40,000, of which “black slaves” numbered 2,000 (5% of the population), and indentured white “christian servants” numbered 6,000 (15% of the population), while “the rest are born in the country or have come in to settle and seat, in bettering their condition in a growing country.” For the 7-year period prior to this (1664–1671), Berkeley estimated that “not above two or three ships of negroes” “have been brought in” to Virginia, while “about fifteen hundred” immigrants — “of which, most are English, few Scotch, and fewer Irish” — “come yearly to plant and inhabite within” Virginia. (Sir William Berkeley, governor of Virginia, responding in 1671 to a questionnaire, dated 1670, submitted by the lords commissioners of foreign plantations)
Despite Christian pieties and the missionary zeal promoting British imperialism, during the first five decades of colonization, white (not black) human trafficking predominated in Virginia. A census taken in 1625 shows that “there were then living in Virginia a total of twenty-three Negroes, of whom two were children evidently born in the colony.” (W. F. Craven, “Twenty Negros to Jamestown in 1619?,” 417) Given that Virginia’s total population in 1628 was about 3,000, this means that less than one percent of the colony’s population was black at the end of the 1620s. (Over a century later, in 1757, black Virginians (58,292) outnumbered white Virginians (44,214); and the black-to-white ratio had flipped again a century after that, with black Virginians numbering about 560,000, and white Virginians about 1,300,000, in 1860.)
As early as 1613, the homeless boys and girls of London (white “christians,” presumably) were being rounded up by the authorities and sent to Virginia:
To the Right Honorable Sir William Cockaine, knight lord mayor of the city of London, and the right worthys the aldermen, his brethren, and the worthys the common council of the city:—
The treasurer, council, and company of Virginia, assembled in their great and general court the 17th of November 1613, have taken into consideration the continual great forwardness of this honourable city in advancing the plantation of Virginia, and particularly in furnishing out one hundred children this last year, which, by the goodness of God, have safely arrived (save such as died in the way), and are well pleased, we doubt not, for this benefit, for which, your bountiful assistance, we, in the name of the whole plantation, do yield unto you deserved thanks.
And forasmuch as we have now resolved to send this next spring very large supplies for the strength and increasing of the colony, styled by the name of the London colony, and find that the sending of these children to be apprenticed hath been very grateful to the people, we pray your lordship and the rest, pursuit of your former so precious actions, to renew the like favours, and furnish us again with one hundred more for the next spring.
Our desire is that we may have them of 12 years old and upward, with allowance of £3 apiece for their transportation, and 40s. apiece for their apparel, as was formerly granted. They shall be apprenticed; the boys till they come to 21 years of age; the girls till like age, or till they be married, and afterward they shall be placed as tenants upon the public lands, with best conditions, where they shall have houses with stock of corn and cattle to begin with, and afterward the moiety of all increase and profit whatsoever.
And so we leave this motion to your honourable and grave consideration.
(Letter from the Virginia Company of London to the lord mayor of London, June 1621; transcribed in Edward D. Neill, The English Colonization of America during the Seventeenth Century, 158–159n1)
Framing “the sending of these children” to Virginia as having “been very grateful to the people” was commonplace in the promotional discourse of the 1620s. Thus, London’s liberality in transporting the city’s destitute to America was celebrated by the likes of Patrick Copland, the ardent presbyterian preacher and prolific fundraiser who emigrated to the Somers Islands (Bermuda) in 1626. On 18 April 1622 — prior to learning of “the barbarous massacre in the time of peace and league, treacherously executed by the native infidels upon the English, the 22 of March [1622]” (Edward Waterhouse, A Declaration of the State of the Colony and Affaires in Virginia, 1622, title); and before James I’s dissolution of the Virginia Company in 1624 — Copland delivered his famous sermon, Virginia’s God Be Thanked, or A Sermon of Thanksgiving for the Happie Successe of the Affayres in Virginia this Last Yeare (published in 1622, a few weeks after its delivery).
Copland’s best-selling sermon (which took for its text, Psalme 107, verses 23–32) was “a model of Calvinist exhortation to active citizenship and colonizing zeal. Preached to the assembled members of the Virginia Company at the church of St Mary-le-Bow, Cheapside, in April 1622, in thanksgiving for the safe arrival of eight of their ships in the colony, it was at one time (1929) the most valuable printed sermon in existence.” (ODNB entry for “Copland, Patrick (c. 1572–c. 1651), philanthropist” by Shona MacLean Vance, n. pag.) Copland closed with a paean to London’s donor class (“Adventurers for the Plantation in VIRGINIA”), lauding them for their “publique Bountie” in furthering “your noble Plantation” in Virginia, which Copland characterized in the dedication to the printed edition as “this glorious Worke,” blessed by God.
Our Countrey [England] aboundeth with people; your Colony [Virginia] wanteth them: you all know that there is nothing more dangerous for the estate of Commonwealths, then when the people doe increase to a greater number and multitude, then may justly parallell with the largenesse of the place and country in which they live. For, even as bloud, though it be the best humour in the body, yet if it abound in greater quantitie, then the vessell and state of the body will contayne and beare, doeth indanger the body, and oftentimes destroyes it: so although the honour of a King be in the multitude of people (as wise King Salomon speaketh) [here citing “Prov. 14. 28.”] yet when this multitude of people increaseth to over great a number, the common wealth stands subject to many perillous inconveniences, as famine, poverty, and sundry other sorts of calamities.
Thus having falne into this point of exalting God in the congregation of the people, and the assembly of the Elders, I have here good occasion offered to mee to blesse God for the prudence and providence of this honourable citie, the honourable Elders thereof, the honourable Lord Maior, and the right worshipfull the Aldermen his brethren; who seeing this Cittie to be mightily increased, and fearing lest the over-flowing multitude of inhabitants should, like too much bloud in the body, infect the whole Cittie with plague and povertie; have therefore devised in their great wisdomes a Remedy for this Malady, to wit, the transporting of their over-flowing multitude into Virginia; which was first put in practise in the Maioralitie of that worthy & famous Lord Maior Sir George Bowles, who sent over a hundred persons, the halfe of their charge being borne by the Citie; the other halfe by the Honourable Virginia Company; which worthy course was afterwards followed by the right worshipfull Sir William Cockins, in whose Maioraltie were sent over a hundred more in the like nature. And now likewise the right Honourable, the present Lord Maior, with the right worshipfull the Aldermen his brethren, intend to continue this course, that they may ease the Citie of a many that are ready to starve, and do starve dayly in our streetes (to the great griefe of all tender-hearted and mercifull men) for want of foode to put into their mouthes. This course, I say, they have taken already, and meane to prosecute it, as I am informed, to the end they may preserve this famous Cittie in greater Peace and Prosperitie: Herein wisely imitattng [imitating] the prudent and provident husbandman, whom they see thus to deale with his grounds, when they are overcharged with cattle: For, as he by removing the[m] from one ground to another, provideth well both for his cattle and for his ground: so they in their wisedoms, by removing their super-increasing people from the Citty to Virginia, have provided well both for this Cittie and their people: for, whereas many of those which were sent over, were a burden to this Citty, they are now through the good government there, and Gods blessing upon the works their hands) become men able to live of themselves in good sort and fashion in Virginia; being before their sending over like to unconverted Onesymus, unprofitable unto all [here referring to the text of Philemon, verse 12 ff.]; and now by their being there, like unto the same Onesymus, but truely converted, profitable to the Plantation, and to the Cittie; to the one by their paines, to the other by their prayers, blessing God from the bottome of their hearts that they were sent from London to Virginia; yea, blessing also the Lord Maiors, in whose time they were sent over.
I may say of this singular prudence and providence of this honourable Cittie, what our Saviour sayd of the fact of Marie Magdalen in powring her costly oyntment on his sacred head (howsoever some sonnes of Beliall maligne this worthy worke, as Judas the Traitor, and some of hell, maligned that act of Maries anoynting of Christ, pretending the good of the poore, but intending it as much as his owne salvation, which was little or nothing at all,) [here citing “Joh. 12. 3. 4. &c. Mat. 26. 13.”] Verily I say unto you wheresoever this Gospell shall bee preached, throughought all the world, there shall also this that she hath done be spoken of, for a memoriall of her. So verily, I say of this honourable City and worthy Elders thereof, that so long as there shall continue any English in Virginia (and we hope their race shall continue there till the second comming of our blessed Saviour) transported from this Citie thither, they shall not cease to pray for the prosperitie of this famous Citie, and worthy governours thereof. Wherefore let me beseech so many of the right Worshipfull and worthy Governours of this famous Cittie, as are present, (and I humbly intreate them, to stirre uppe all such as are absent) to proceede as they have begunne, [here citing “Prov. 4. 18.”] that their Way may shine as the light that shineth more and more unto the perfect day; that what was spoken of Ruth, may bee verified in them; [here citing “Ruth 3. 10.”] Thou hast shewed more goodnesse in the latter end, then at the beginning: and that that may bee their praise, which is recorded to be the commendation of the Church of Thyatira; [here citing “Rev. 2. 19.”] I know thy workes, and thy love and service, and faith and patience; and how thy workes are more at the last then at the first.
Right Worshipfull, yee are plentifull in other good workes, the maintaining of your Hospitals, and other publike workes in this famous Cittie, preach your munificence through all the world, [here citing “Rom. 1. 8. & 16. 19.”] as the faith and obedience of the Romans was published abroad among all. O be rich in well doing this way likewise, that it may be sayd of you, Many have done worthily for the plantation in Virginia, but the honourable Citty of London surmounteth them all. Your Cittie (as I sayd) aboundeth in people (and long may it doe so) the Plantation in Virginia is capable enough to receive them; O take course to ease your Cittie, and to provide well for your people by sending them over thither; that both they of that Colony there, and they of your owne Cittie here, may live to blesse your prudent and provident government over them. For, I have heard many of the painfullest labourers of your Cittie, even with teares bemoane the desolate estate of their poore wives and children; who though they rise earely, taw and teare their flesh all the day long with hard labour, and goe late to bed, and feede almost all the weeke long upon browne bread and cheese, yet are scarce able to put bread in their mouthes at the weekes end, and cloathes on their backes at the yeares end; and all because worke is so hard to be come by, and there be so many of the same Trade, that they can not thrive one for another. Right Worshipfull, I beseech you ponder (as I know you doe) the forlorne estate of many of the best members of your Citty, and helpe them, O helpe them out of their misery; what you bestow uppon (34) them in their transportation to VIRGINIA, they will repay it at present with their Prayers, and when they are able with their Purses; and GOD in the meane while, will plentifully reward your liberalitie this way with his blessing upon your famous Citie, upon your selves, upon your posteritie: For doth not your mercifull God, the Lord of Hosts, [here citing “Mal. 3. 10.”] bid you prove him, if hee will not open the windowes of heaven unto you, and powre you out a blessing without measure?
And that I may bend my speech unto all, seing so many of the Lords Worthies have done worthily in this noble Action: yea, and seing that some of them greatly rejoyce in this (as I have heard it from their owne mouthes) that GOD hath inabled them to helpe forward this glorious Worke, both with their Prayers and with their Purses, let it be your griefe and sorrow to be exempted from the Company of so many honourable minded men, and from this noble Plantation, tending so highly to the advancement of the Gospell; and to the honouring of our drad Soveraigne, by inlarging of his Kingdomes, and adding a fifth Crowne unto his other foure: for, En dat Virginia quintam, is the Motto of the Legal Seale of VIRGINIA. And let mee, in a word, shut up all, unto you all, that hath beene spoken with that exhortation of the Apostle; [here citing “1. Cor. 15. 58.”] My beloved brethren, be yee stedfast, unmoveable, aboundant alwayes in the worke of the Lord: for as much as you know that your labour is not in vaine in the LORD.
(Patrick Copland, Virginia’s God Be Thanked, or A Sermon of Thanksgiving for the Happie Successe of the Affayres in Virginia this Last Yeare, 1622, 30–36)
But “this glorious Worke” of city government (human trafficking) was, from the beginning, fraught with abuse.
The following letter of Sir Edwin Sandys [leading MP, whose signature issues included free trade & free speech; Virginia Company councillor & director responsible for creating the representative “general assembly” in Virginia in 1619, and for transporting some 4000 people across the Atlantic from 1619–1624, “probably the single most important reason that England’s foothold at Jamestown survived”; lead negotiator with the English puritans exiled to Leiden, resulting in their repatriation and the journey of the Mayflower and the Pilgrim Fathers in 1620], to one of the King’s secretaries, Sir Robert Naunton, shows that the children were not always willing to embark:—
“The city of London have appointed one hundred children from the superfluous multitude to be transported to Virginia, there to be bound apprentices upon very beneficial conditions. They have also granted £500 for their passage and outfit. Some of the ill-disposed children, who, under severe masters in Virginia, may be brought to goodness, and of whom the city is specially desirous to be disburdened, declare their unwillingness to go. The city wanting authority to deliver, and the Virginia Company to transport these children against their will, desire higher authority to get over the difficulty.”
Another paper will throw some light on the abuses in this business:—
“Sir Edward Hext, Justice of the Peace of Somersetshire, to the Privy Council:
“Upon complaint that Owen Evans, messenger of the Chamber, had a pretended commission to press maidens to be sent to Virginia and the Bermudas, and received money thereby, he issued a warrant for his apprehension. Evans’ undue proceedings bred such terror to the poor maidens that forty have fled from one parish to obscure places, and their parents do not know what has become of them.”
(Edward D. Neill, The English Colonization of America during the Seventeenth Century, 158–160n1)
The scourge of white human trafficking continued through the 1650s, as reported to the government of Oliver Cromwell, by the would-be missionary, Lionel Gatford (d. 1665), in a petition published towards the end of the Protectorate and of commonwealth rule:
That very many Children and servants sent into that Plantation [Virginia], that were violently taken away, or cheatingly duckoyed [decoyed] without the consent or knowledge of their Parents or Masters by some praestigious Plagiaries [archaic term for kidnappers] (commonly called Spirits) into some private places, or ships, and there sold to be transported; and then resold there to be slaves or servants to those that will give most for them. A practice proper for Spirits, namely the Spirits of Devils, but to be abhorred and abominated of all men that know either what men are, or whose originally they are, (even his that made them) or what their relations are, either natural, civil, or Christian. A practice condemned by the very Heathen, and a Law called Lex plagiaria, made by them against it. And if it should be tollerated, or connived at by Christians, and known so to be of the Heathen, Let it never be expected that any of those Heathen should turn Christians. For they may well conclude, That they that will take by force or fraud those that are Christians either children from their Parents, or servants from their Masters or any of any relation from their friends and relations, and sell them for slaves or servants to others, will never make any conscience or scruple at all, either of taking away by force, or surreptitiously stealing, or otherwise unjustly possessing or selling those Heathen themselves, or their children, servants, goods, lands, or ought else they can lay their hands on. And if they should become Christians, they are foretaught by sufficient examples, that their being Christians would be no securitie or protection to them or theirs. And how this diabolical practise does, in this and many other respects, cry unto God for vengeance in the cries, and moanes, and complaints, and lamentations, made by those poor inslaved children and servants and by all their Parents, friends and relations, may be more easily gessed [guessed] at than expressed; and may, in probability, be enough of it self, to pull a curse and vengeance upon the whole Plantation. Amos 2. v: 6. Joel 3. v: 6, 7, 8.
(Lionel Gatford, Publick Good without Private Interest: or, a Compendious Remonstrance of the Present Sad State and Condition of the English Colonie of Virginea, 1657, 4–5)
In addition to Virginia’s devilish practice of human trafficking (to which all races were still subject), Gatford documented a (by 1657, well-established), culture of Christian violence against Virginia’s indigenous inhabitants:
1. The Planters generally keep neither their word nor their faith with the Indians; whereas the Indians very seldome or never break their word or faith with them. Thus iniquity is not only folly, but sometimes a very contradiction to it self, as well as to reason; for some that call themselves believers, are real infidels, and prove themselves so to be, and worse, when some that are real infidels, prove themselves to have more faith than such hypocritical believers. And it would be found presumption, not faith or charity, in any, to believe or hope, that such dishonourers of the Christian faith, should ever prevail with the poor unbelieving Indians to believe Gods word or his promises, declared to be his by them whose word and promise they have just cause not to believe. Or if God should make such fowl falls of such false Christians to be an occasion to his own raising up those unbelieving Indians, & bringing them to Christ, as he did the falling of the Jewes to be the riches of the gentiles, Rom. 11. tis to be feared such a calling in of those Indians, would be the utter casting off of those Christians; which the Lord of his mercy forbid. And for the Indians fidelity to the English, take that for a memorable testimony amongst many, and indeed it may stand for many: when the Massacre was made by the indians upon the English in that Colonie [1622], They assaulted, no persons, nor invaded any mans possessions or goods, that they knew had bought their lands of them, & covenanted with them, for them and made good their covenants.
2. The Planters have taken the Indians goods from them by force when the Indians have come peaceably to trade with them. An act to be detested of all that love peace and truth, much more of those that have any desire of the propagating of the Gospel of peace and truth amongst those with whom they trade.
3. The Planters have turned some of the Indians out of their places of abode and subsistence, after that the Indians have submitted to the Colonie, and to their Government, and have taken up their own lands after the custome used by the Colonie; As they did otherwise also very unchristianly requite [repay] the service which one of the Indian Kings did them in fighting against other Indians, that were presumed to be enemies to the English and to draw towards them to do them mischief. For that when the said King desirous to shew his fidelity to the English, if not in obedience to some of their Commanders orders, did adventure too far with his own Indians in the pursute of those other Indians, and thereby lost his life in that action, as some report (though others thought him to be taken alive by the enemies). His wife and children (that were by him at his expiring), recommended to the care of the English (as some of his servants have given out) or, to be sure, ought to have been taken into their special care whether so recommended or not, and might have been such an advantage either of reducing that whole family with their friends & allies to the embracing the Christian faith, or at least such an endearing them to the English, as they have never or seldome had the opportunity of, were so far from receiving the favour and kind usage merited by their father, that they were wholly neglected and exposed to shift for themselves. And though it be alleged by some, as to the former part of this grievance, that that portion of Lands, which was taken from the sayd King before his death by an English Colonel, was acknowledged openly in Court to be with the consent of the said King, & that hee was satisfied for it; Yet tis generally believed, & by some stoutly asserted, that the sayd King was affrighted and threatened into that acknowledgement, by the said Colonel.
4. The Planters have by their several and frequent acts of injustice and cruelty exercised upon the Indians, in invading their rights and assaulting their persons, made the Indians in a manner to despair of ever living peaceably by them, or having any fair converse or commerce with them, as by their not suffering the Indians to hunt in those woods, or to fish in those rivers, wherein they challenge a right, and are believed by divers sober and discreet men of the Colonie to have a right as well as themselves; as also by not permitting the Indians, though single, or but two or three in a company, to approach neer to any of the habitations of the English (unless it be of some few of the better sort and rank, who have more civility and humanity, and know better how to improve that advantage) And, if any of the Indians do chance to come into any of their Plantations, and are taken, the English oftentimes ty [tie] them alive to trees and burn them to ashes, or else otherwise murder them, without shewing any cause, farther than the pretending that the Indians are not to be trusted, though (as I but now said) in their faithfulness and firmness to their promises they much surpass the English.
5. The Planters did lately, viz. Anno 1656, (when a numerous people of the Indians, more remote from the Colonie, came down to treat with the English about setling of a Peace, and withall a liberty of trade with them) most perfidiously and barbarously (after a declaration of their desires and intention) murther five of their Kings, that came in expectation of a better reception, and brought much Beaver with them to begin the intercourse of the commerce. This unparallel’d hellish treachery and antichristian perfidy more to be detested than any heathenish inhumanity, cannot but stink most abominably in the nosethrils of as many Indians as shall be infested with the least sent [scent] of it, even to their perpetual abhorring and abandoning of the very sight and name of an English man, till some new generation of a better extract shall be transplanted amongst them; as also cry incessantly in the eares of the Almighty for his avenging those bloods upon those English, who made their calling themselves his their prime advantage of betraying those poor wretches lives into their bloody hands; and by their murthering their bodies did (as much as in them lay) slay also their very soules and sacrifice them to the Devil; as they have likewise by that complicated iniquity, (unless the detestation thereof, by the rest of that Colonie and this Nation, be openly manifested in the sight of the surviving Indians in some exemplarie punishment of those murtherers) beaten off many thousands of thousands of soules from embracing that faith which would save them.
6. To justify all these and many other of their matchless iniquities and impieties, especially their rapines, murthers, and all sorts of cruelties exercised upon the poor Indians; some of the Planters, having usurped the office of publike preachers, have Proclaimed from their speaking-places, That the Planters are the Saints, that have just right to whatsoever the Indians call theirs; & may, when they have opportunity and power, turn the Indians out of all their lands and estates, & take them into their own possession. So far have they extended that opinion dominium fundatur in gratiae, and so much have they abused, that Apostolical compellation of Saints, in those parts: your Highness [Oliver Cromwell, “Lord Protector of England, Scotland, and Ireland”] can not but know the danger of their conjunction in these.
(Lionel Gatford, Publick Good without Private Interest: or, a Compendious Remonstrance of the Present Sad State and Condition of the English Colonie of Virginea, 1657, 5–8)
Indeed, the profitable business of human trafficking encouraged unprecedented Christian violence:
Another wickedness, which some traders thither have practised upon their passengers (scarce ever heard of before, much less practised by any that call them selves Christians) is this, When a storm or tempest hath happened at sea in their passage from hence [England] thither [to the Americas], or they have otherwise miscarried, through the default of the Master or Pilot of the ship, so that their passage hath been tedious and difficult; Some of those Masters have laid all the blame upon some of their passengers; and not onely accused them for witches, but executed some of them as witches, by their own authority, and without any legal trial and conviction. Now if heathen mariners in a desperate death-threatning tempest at sea, (after that they knew that it was raysed for one of their passengers sakes, and was acknowledged so to be by that passenger himself, and were desired by him to cast him over-board, and promised thereupon a cessation of the storm) were notwithstanding both unwilling & afraid to cast him over, lest themselves should lose their lives for casting away his; or that his innocent blood might be otherwise required of them, and revengd on them, Jonah 1. How will their tender-heartedness and fear of shedding the blood of one innocent passenger (as they reputed him) rise up in judgement against the hard-heartedness and deep blood-guiltiness of those Christian mariners (undeservedly so called) who upon a small tempest or other miscarriages at sea, or out of a covetous desire only to gain a little the more by their passengers, rashly and impiously impute the cause of that tempest or miscarriage to some of their passengers; and thereupon, both accuse, judge, and execute them without any examination, trial or conviction of them; or without the least legal power to doe either unto them; not allowing them so much mercy as Jonah had from the merciless waters, nor according them so much bowels of compassion, or liberty of Gods miraculous preservation, as Jonah found in the belly of Hell?
(Lionel Gatford, Publick Good without Private Interest: or, a Compendious Remonstrance of the Present Sad State and Condition of the English Colonie of Virginea, 1657, 12–13)
According to Gatford, by 1657, Christian hypocrisy was rife within the colony, mostly perpetrated against “poor injured, oppressed, inslaved Christian servants” by their “most unjust, cruel, tyrannical, unchristian Masters” (L. Gatford, “The Epistle to the Reader,” c1r), but extending also into the ranks of “the middling sort” of immigrants (yeomen, husbandmen, craftsmen, and the younger sons of gentry families), most of whom became indentured servants in Virginia.
The Planters, some of them, have not only dealt unjustly and inhumanely with the poor heathen Indians; but to the farther dishonour of this Nation, and the greater scandal of our religion professed by them, they did lately commit a most hainous outrage, and bloody fact upon some of their own English Nation, that had seated themselves in Mary-land; & that not upon a suddain provoked boyling of their own blood, but, (so far as circumstances could demonstrate their intention) out of a Cain-like thirsting after their brethrens blood, and a sordid coveting of their estates; and what less can the Indians from thence infere [infer], than, that if the English invade each others possessions, and shed each others bloods for them, surely the poor contemned Indians cannot hope for either justice or mercy from them; and therefore why should they scruple the cutting of their throats or driving them out from amongst them, who so little scruple the cutting each others or any others throats, and the turning them out from cohabiting in the same country with them?
2. The Planters (out of covetous desire to take up great Tracts of land) disperse themselves very far from each other in the Country, and usually take up more land by an hundred parts, than they are able to manure or till, or make any use of: rendering themselves thereby both useless to one another, & the more unserviceable to the publick; besides the exposing themselves to be cut off the more easily by the Indians, when they shall take that occasion, which is too often given them, as well as understand this advantage.
3. The Planters observe no just order in taking up their proportions of land, but run up, one after another, all along by the rivers sides; whereby they not onely prejudice others, that come after them, in their Planting and seating themselves; but do very much discourage them from planting and setling themselves at all; because they cannot have any tollerable convenience of the Rivers.
4. The Planters doe generally regard the planting of nothing but Tobacco; and that they plant so excessively, that they cannot (considering their number of servants) make it up as it should be. And too many will not give it the due making that they might; and do, for the most of them, pack it so falsly and cheatingly; that the Traders thither, finding themselves so abused & cousened by them, and that, upon their complaining therof no justice is done them, (because most commonly the parties guilty are the judges) are very much disheartned and discouraged from trading any longer with them. And if the Planters themselves do at any time bring, or send over upon their own account, any considerable quantities thereof, it proves usually so bad, and of so little worth, that all charges defrayed, they can scarce get more by it than their labour for their pains: whereas when some of them, that have been carefull to have their tobacco well made, and as well pact [packed] up, have brought over of the same, six hundred pounds have been offered to one of them for one yeares profit of his plantation.
5. The Planters do seldome imploy their mindes and parts about ought save the procuring a present subsistence and livelyhood, and the purchasing of strong waters, or some other such heating liquors, as may inflame their Spirits, and intoxicate their braines; and so continue their old accustomed debaucheries contracted in England.
6. The Planters in the generality, doe most basely cheat, and unjustly deal with all that trade with them, in case either themselves, or any that come into those parts to trade with them, happen to die there, or have any estates there when they die: For that all the estate that is found in the deceased’s hands (be it whose it will be) is apprised by certain apprisers at half its worth: And the apprisers for their paines take in a manner what they please; and the rest of the estate is put into the hands of any that claim any interest therein, under a pretence to keep it for the true proprietors; who seldome get ought thereof, upon their demanding it, but are inforced, for the most part, to spend the full value thereof, and sometimes if they will not bear that abuse, twice as much as its value, before they can recover ought. And usually they lose both the principal estate, and all the charges expended for the regaining it. Which practice alone, if not speedily remedied, will deterr all traders from adventuring thither, and destroy all trade there, and so ruine the Colonie.
7. The Planters, many of them doe very much abuse and oppress their poor servants, by not allowing them that lodging and food which is meet, causing many of them either to ly all the time of their servitude in ash heaps, or otherwise to kennel up and down like dogs, where they can find room; scarce feeding them so well as our scornfull servants here in England feed our dogs; though men of honesty and conscience do discharge their consciences there in the good use of their servants, as the like do here.
8. The Planters suffer much, and complain excessively of the heavy and unequal taxes laid upon them, which taxes in a great part are pretended to be imposed for the levying and raising of force to secure the Colony and defend them against their enemies; when as they are spent and imbezled by the officers or largesses of the assemblies of the Colony in intemperate drinking, and other riotous and luxurious practices, so industry and temperance are discouraged, and idleness and licentiousness are maintained, if not countenanced; which cannot but soon overthrow the best of Plantations.
9. The Planters do exceedingly miscarry in not setling head Townes in each County, that the people of that County, and all others that desire to trade with them, might be drawn together, and manage their trading in some certain places; and not run up and down from house to house; especially when the houses are at so great a distance from each other, as there they are, and not above two houses together in any County except in James Town.
(Lionel Gatford, Publick Good without Private Interest: or, a Compendious Remonstrance of the Present Sad State and Condition of the English Colonie of Virginea, 1657, 9–11)
According to Gatford, by 1657, “inexperienced, indiscreet, careless, covetous Governors soon pulled down, or suffered to ruine, what any knowing, prudent, carefull, generous Governour had builded, or at least layd the foundation of” (L. Gatford, Publick Good without Private Interest, 3).
Such “Miscariages” of Christian conduct by the governing class, enabled by official corruption, fed the growing sense of grievance in Virginia against local elites (providing the underpinnings for Bacon’s Rebellion).
Related census, citizenship and immigration laws
As we have seen, Virginia’s earliest representative government was grounded on radical principles of universal suffrage and of full representation, extending the right of suffrage to all freemen, who were not at first compellable to go from their plantations to vote for burgesses, but were able to give their suffrages by subscribing a paper (the first absentee voting in this country).
Nonetheless, other settler freedoms — of movement, of employment, of trade, etc. — were more circumscribed. For example, according to statutory law enacted 3 August 1619, settlers who gave or sold hoes or dogs to the natives were fined 5 shillings; selling or giving firearms and ammunition to the aboriginal inhabitants carried the death penalty; and any settlers going twenty miles from home, or absenting themselves seven days, or consorting with the natives on tribal lands, without prior government authorization, were to be heavily fined (20 shillings and 40 shillings respectively):
That no man doe sell or give any of the greatter howes [hoes] to the Indians, or any English dog of quality, as a mastive, greyhound, bloodhounde, lande or water spaniel, or any other dog or bitche whatsoever, of the Englishe race, upon paine of forfaiting 5s sterling to the publique uses of the Incorporation where he dwelleth.
That no man do sell or give any Indians any piece shott or poulder [powder], or any other armes, offensive or defensive upon paine of being held a Traytour to the Colony, and of being hanged as soon as the facte is proved, without all redemption.
That no man may go above twenty miles from his dwelling-place, nor upon any voiage whatsoever shalbe absent from thence for the space of seven dayes together without first having made the Governor or comaunder of the same place acquainted therwith, upon paine of paying twenty shillings to the publique uses of the same Incorporation where the party delinquent dwelleth.
That no man shall purposely goe to any Indian townes, habitations or places or resortes without leave from the Governor or comaunder of that place wher he liveth, upon paine of paying 40s to publique uses as aforesaid.
(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)
This same legislative Assembly in 1619 made provision for taking an accurate census of the inhabitants, with each government head count initially focused on gathering information about inhabitants’ socioeconomic status (i.e., recording whether each “head” who was resident in Virginia was a free and independent? or dependent? person):
That no man living in this Colony, but shall between this [3 August 1619] and the first of January nexte ensueing come or sende to the Secretary of Estate to enter his own and all his servants’ names, and for what terme or upon what conditions they are to serve, upon penalty of paying 40s to the said Secretary of Estate. Also, whatsoever Mrs [masters] or people doe come over to this plantation that within one month of their arrivall (notice being first given them of this very lawe) they shall likewise resorte to the Secretary of Estate and shall certifie him upon what termes or conditions they be come hither, to the ende that he may recorde their grauntes and comissions, and for how long time and upon what conditions their servants (in case they have any) are to serve them, and that upon paine of the penalty nexte above mentioned.
All Ministers in the Colony shall once a year, namely, in the moneth of Marche, bring to the Secretary of Estate a true account of all Christenings, burials and marriages, upon paine, if they faill, to be censured for their negligence by the Governor and Counsell of Estate; likewise, where there be no ministers, that the comanders of the place doe supply the same duty.
(Laws passed on 3 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)
Strictly speaking, “a constitutionally-mandated count of its population” (usually assumed to begin in 1790) dates instead to this country’s founding with the first permanent Anglo-American settlement (at Jamestown, Virginia) planted on 26 April 1607, as framed by “letters patent under the great seal of England” — the First Charter of king James I, dated 10 April 1606. This founding document ceded settlement of the “first” Anglo-American colony to the group of venture capitalists (“merchant adventurers”) who led the colonial joint-stock enterprise, sponsored by the Virginia Company of London, which administered accurate and complete census data.
James I’s letters-patent gave to the Virginia companies
... our licence, to make habitation, plantation, and to deduce a colony of sundry of our people into that part of America, commonly called Virginia, and other parts and territories in America, either appertaining unto us, or which are not now actually possessed by any christian prince or people, situate, lying, and being all along the sea coasts, between four and thirty degrees of Northerly latitude from the Equinoctial line, and five and forty degrees of the same latitude, and in the main land between the same four and thirty and five and forty degrees, and the islands thereunto adjacent, or within one hundred miles of the coasts thereof ...
(James I, letters-patent to Sir Thomas Gates “for two several Colonies and Plantations, to be made in Virginia, and other parts and Territories of America,” dated 10 April 1606; as transcribed in Alexander Brown, The Genesis of the United States, 2 vols., 1890, 1.52–53)
and to control settlement:
... no other of our subjects shall be permitted, or suffered to plant or inhabit behind, or on the backside of them, towards the main land, without the express licence or consent of the council of that colony thereunto in writing first had and obtained.
(James I, letters-patent to Sir Thomas Gates “for two several Colonies and Plantations, to be made in Virginia, and other parts and Territories of America,” dated 10 April 1606; as transcribed in Alexander Brown, The Genesis of the United States, 2 vols., 1890, 1.54–55)
In addition to distributing land among documented investors and inhabitants, “their heirs, and assigns,” the Virginia Company was free to use force to control licensed settlement and repel all unlicensed newcomers: thus, licensed settlers may
... encounter, expulse, repel and resist, as well by sea as by land, by all ways and means whatsoever, all and every such person and persons, as without the especial licence of the said several colonies and plantations, shall attempt to inhabit within the said several precincts and limits of the said several colonies and plantations, or any of them, or that shall enterprise or attempt, at any time hereafter, the hurt, detriment, or annoyance of the said several colonies or plantations ...
(James I, letters-patent to Sir Thomas Gates “for two several Colonies and Plantations, to be made in Virginia, and other parts and Territories of America,” dated 10 April 1606; as transcribed in Alexander Brown, The Genesis of the United States, 2 vols., 1890, 1.59)
This royal license to control settlement was predicated on full documentation of founding inhabitants, along with updated census data, as required to keep track of “us, our heirs, and successors” with legal rights to American “hereditaments” (any kind of property that can be inherited) and the rights of free Englishmen. All licensed inhabitants of “the first colony” — “and every of their children, which shall happen to be born within any of the limits and precincts of the said several colonies and plantations” — “shall have and enjoy all liberties, franchises, and immunities, within any of our other dominions, to all intents and purposes, as if they had been abiding and born, within this our realm of England, or any other of our said dominions.” (James I, letters-patent to Sir Thomas Gates “for two several Colonies and Plantations, to be made in Virginia, and other parts and Territories of America,” dated 10 April 1606; as transcribed in Alexander Brown, The Genesis of the United States, 2 vols., 1890, 1.60–61)
The settler population was thus closely monitored from the beginning, with initial population counts evolving into Virginia’s large-scale annual census of all inhabitants, with their arms and other property, as mandated in 1631:
IT is ordered and appoynted, That the commanders of all the severall plantations, doe ... uppon the first day of December, take a muster of theire men, togeather with the women and children, and theire ages, countryes, and towns, where they were borne, with the shipps they came in, and the yeare of the Lord, as also of armes and munition, corne, cattle, hoggs, goates, barques, boates, gardens, and orchards, and yf they shall make default, to be censured by the Governor and Counsell.
(Act LVI, as passed by Virginia’s General Assembly, “holden at James Citty” “the 2d of March, 1631”; this legislation was reenacted, verbatim, as ACT LIII, by the Grand Assembly “holden at James Citty the 4th day of September, 1632”; both 1631–2 acts are transcribed from MSS. collected and owned by Thomas Jefferson)
This demographic information was needed primarily for taxation (itself linked to suffrage, on and off) and for effective public administration of the colony and its labor force. Undercounts of Virginia’s population soon became enough of a problem that laws had to be passed empowering residents to cross-check government numbers and ensure the accuracy of the count. For example, in October 1670, the legislature mandated that the government’s list of names and numbers of tithables (taxable persons) be published by the clerk of court “for the surer discovery” of concealed inhabitants:
WHEREAS many endeavours have been used for the prevention of ffraud in takeing the lyst of tythables, It is hereby enacted for the surer discovery thereof that at the next court after the tenth of June in every county the name and number of tythables in every list taken by the respective justices in the respective precincts lymetted them, be taken by the clerke of the county court, and by him written and sett up at the court doore all that day, to the end that if any concealment have been made, the persons liveing neare them may discover them to the court, and such penalties be inflicted on them as by the former law is enjoyned.
(Act IV, as passed by the “Grand Assemblie holden at James Cittie by prorogation from the twentieth of October 1669, to the third of October 1670, in the twentie-second yeare of the reigne of our soveraigne lord King Charles the Second,” with Sir William Berkeley as governor)
As early as 1611, the corporate governing body back home in England (the Virginia Company of London) was trying to control the flow of immigration to Virginia, hoping to stop the influx of “vagrant and unnecessarie persons” who were a drain on limited colonial resources, and encourage instead an influx of “honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts” who, it was hoped, would contribute to colonial productivity and return a profit for the investors.
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^ Broadsheet published in 1611 by the Council for Virginia.
An early example of the sort of ads furthering England’s colonial enterprise that circulated at the Royal Exchange, the center of British commercial activity from 1569–1666.
This particular advertisement, calling for artisans of all kinds to join the Virginia colony, spells out policy changes concerning emigration (who was wanted, and who was not) that Francis Bacon would reiterate a decade later in his essay “Of Plantations.”
The 1611 ad reads in full: “By the Counsell of Virginea. / Seeing it hath pleased God, after such hard successe, and the manifold impediments knowne to the world, that now by the wisdome and industry of the Lord Governour settled in Virginea, the state and businesse of the English Plantation there succeedeth with hope of a most prosperous event, and that therefore it is resolved and almost in a readinesse, for the further benefit and better setling of the said Plantation, to make a new supply of men, and all necessarie provisions, in a Fleet of good Ships, under the conduct of Sir Thomas Gates and Sir Thomas Dale Knights, and for that it is not intended any more to burden the action with vagrant and unnecessarie persons: this is to give notice to so many honest and industrious men, as Carpenters, Smiths, Coopers, Fishermen, Tanners, Shoomakers, Shipwrights, Brickmen, Gardeners, Husbandmen, and labouring men of all sorts, that if they repaire to the house of Sir Thomas Smith in Philpot lane in London, before the end of this present moneth of Januarie, the number not full, they shall be entertained for the Voyage, upon such termes as their qualitie and fitnesse shall deserve. / Imprinted at London for William Welby, 1611.”
The ad is handsomely printed, typeset in black letter and ornamented with She-philosopher.com’s Head-piece No. 1 — a symbol of spiritual and physical wayfinding, commonly used in early English books of science and navigation.
Immigrants who did not add to the wealth of the province were not welcome, as in the case of the Frenchmen brought to Virginia in the 1620s to develop a wine industry and a diversified economy linked to free markets around the Atlantic rim. The first vines in Virginia were planted by French workers brought to the colony on 10 June 1610 by Lord De La Warr (1577–1618), the new governor and captain general of Virginia (a lifetime appointment given him by the council of the Virginia Company of London, of which he had been a member since 1609). Laws mandating that all settlers plant vines (considered a staple commodity) date to 1619:
Moreover be it enacted by this present Assembly, that every householder doe yearly plante and maintaine ten vines untill they have attained to the art and experience of dressing a Vineyard either by their owne industry or by the Instruction of some Vigneron. And that upon what penalty soever the Governor and Counsell of Estate shall thinke fitt to impose upon the neglecters of this acte.
(Law passed on 2 August 1619 by the General Assembly of Virginia — the first legislative assembly that ever convened on the American continent)
Once situated in Virginia, the French viticulturists reneged on their deal, neglecting to cultivate the vine in order to plant (the much more profitable) tobacco, thus adding to the strains of monocultural production by contributing to the oversupply of Virginia tobacco. This, in turn, threatened the export market for that commodity as well as the colony’s Anglo-American planters of tobacco, who were “dishartened” by the competition. The result: government protectionism by way of Anglo-America’s first Aliens Restriction Act (allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas):
UPPON a remonstrance preferr’d to the assembly, complayninge that the ffrenchmen who were, about ten yeares since, transported into this country for the plantinge and dressings of vynes, and to instruct others in the same, have willinglie concealed the skill, and not only neglected to plant any vynes themselves, but have also spoyled and ruinated that vyniard, which was, with great cost, planted by the charge of the late company [the Virginia Company of London, whose charter was revoked in 1624, thereby making Virginia a royal colony] and theire officers here; and yet notwithstanding have receaved all favour and encouragement thereunto, which hath dishartened the inhabitants here, It is therefore ordered that the sayd ffrenchmen, togeather with theire families, be restrayned and prohibited from plantinge tobacco, uppon penaltie to forfeit theire leases, and imprisonment untill they will depart out of this colony.
(Act XVI, passed by Virginia’s General Assembly, “holden at James Citty the 21st of ffebruary, 1631–2”)
In the 1650s, laws were passed allowing the government to control alien labor, which was lumped in with Irish labor (in the 17th century, the Irish were considered a different race, separate and distinct from the English race), and first regulated in 1655:
BE it enacted by this Grand Assembly, That all Irish servants that from the first of September, 1653, have bin brought into this collony without indenture (notwithstanding the act for servants without indentures it being only the benefitt of our own nation) shall serve as followeth, (vizt.) all above sixteen yeares old to serve six years, and all under to serve till they be twenty-four years old and in case of dispute in that behalfe the court shall be judge of their age.
(Act VI, passed “att a Grand Assembly, held att James Citty, March 31, 1655”)
then amended by the Virginia Assembly in March 1657–58 so as all aliens were compellable to serve as long as Irish servants — “... and all aliens to be included in this act” (Act LXXXV).
(The Act for Irish Servants would later be repealed, at a legislative session held 13 March 1659–60, because the length of indenture specified in Act 85 of March 1657–58 had “discouraged” aliens from coming to Virginia, which desperately needed their labor. The revised Act XIV of March 1659–60 mandated that “for the future no servant comeing into the country without indentures, of what christian nation soever, shall serve longer then those of our own country, of the like age.”)
Legal inhabitants of Virginia were formally known as denizens, and the first law pertaining to what we would now call the acquisition of citizenship (by “aliens and strangers” who had been resident in the colony for four or more years) was enacted in 1658:
BEE it alsoe [further] enacted and confirmed by the authoritie aforesaid, That all aliens and strangers who have inhabited the countrey the space of ffower yeeres, and have a firme resolution to make this countrey their place of residence shall be free denisons of this collony, Provided they and everie of them take the oath of ffidelitie to be true to the government of this countrey, And the said oath is to be administred by the severall courts respectively in the counties where anie such aliens do dwell: And it is also further enacted that their children also shall bee ffree denisons of this countrey they and everie of them, Also takeing the said oath of ffidellity when they shall attain to lawfull age, which said oath is to be administred by the severall countie courts where they shall happen to live as aforesaid.
(ACT CXVIII, as passed by “a Grand Assembly holden at James Cittie, March the 13th, 1657–8”)
The first rights of Virginia citizenship were conferred on John Johnson, a Dutchman and millwright (whose particular skillset was in great demand), two years later:
ORDERED, That John Johnson, millright, being a Dutchman be for the encouragment of other artificers of what nation soever admitted to be a denizen of Virginia, he haveing been resident here much longer then the act for denizens requires, And intending according to the tenor thereof to make this the place of his future residence, Therefore upon oath taken according to act, his letters of denization are ordered to issue forth.
(“Orders of a Grand Assemblie, held att James Cittie, March 13th, 1659–60”)
In a manual of the trades designed to give “Parents, Guardians, and Trustees, as well as the Youths themselves, intended for Trades and Business, not only a general Description of almost all Handicrafts, Trades, and Employs in Vogue, but also such Particulars of them, as will enable both the one and the other to form a tolerable Judgment which of them all may be most agreeable, and best answer their Purpose,” the profession of millwright was described, almost 100 years later, as difficult and exacting work:
Their Trade is a Branch of Carpentry, (with some Assistance from the Smith) but rather heavier Work, yet very ingenious, to understand and perform which well, a Person ought to have a good Turn of Mind for Mechanics, at least to have some Knowledge in Arithmetic, in which a Lad ought to be instructed before he goes to learn this Art; for there is a great deal of Variety in Mills, as well as in the Structure and Workmanship of them; some being worked by Horses, some by Wind; others by Water shooting over, and some by its running under: And why not in Time by Fire too, as well as Engines?
They take with an Apprentice 5 or 10 l. work from six to six; and pay a Journeyman 12 or 15 s. a Week; but 50 or 100 l. worth of Timber, and 50 l. to spare will make a Master of him.
(Anonymous, A General Description of All Trades, Digested in Alphabetical Order: By which Parents, Guardians, and Trustees, May, with Greater Ease and Certainty, Make Choice of Trades Agreeable to the Capacity, Education, Inclination, Strength, and Fortune of the Youth under their Care, 1747, 151)
** N O T E ** On 7/21/2020, then President Donald Trump signed a memorandum that seeks to bar persons residing in the U.S. illegally from being counted for congressional reapportionment, as reported in “Trump Signs Memorandum Excluding Those in U.S. Illegally from Reapportionment” by Jill Colvin and Kevin Freking of The Associated Press (posted to the PBS NewsHour website, 7/21/2020).
This was yet another attempt at radically modernizing U.S. constitutional law, all the while pretending to be rooted in founding principles:
Since the first U.S. census in 1790, both U.S. citizens and noncitizens — regardless of immigration status — have been included in the country’s official population counts. [...].
The state of Alabama, however, is arguing in an ongoing federal lawsuit that the framers of the Constitution did not intend for the term “persons” to include immigrants living in the country without authorization. Alabama says it’s trying to avoid losing a seat in Congress after the 2020 census by seeking to leave out unauthorized immigrants from the results of the national count that are used to reapportion the U.S. House.
U.S. Rep. Mo Brooks, R-Ala., who joined the state’s lawsuit, and Alabama State Attorney General Steve Marshall both praised Trump’s memo in statements released Tuesday [7/21/2020].
“Representation should be based on those people who reside in their states and this country lawfully,” Marshall said in a statement. “A contrary result would rob the State of Alabama and its legal residents of their rightful share of representation and undermine the rule of law.”
(Hansi Lo Wang, “With No Final Say, Trump Wants to Change Who Counts for Dividing Up Congress’ Seats,” n. pag.; reference courtesy “vnt” in a comment posted to the AP story, “Trump Will Face Court Challenge to Order Excluding Unauthorized Immigrants from U.S. Census” by Mike Schneider of The Associated Press)
Historically, “aliens and strangers” and other persons residing in this country without the proper authorization (illegal immigrants) have always been counted in the census, and included in the apportionment base for representatives (as in the 1658 statute mandating that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of Burgesses”). As I have documented briefly above, since the founding of this country in the early 17th century (with the first, lasting Anglo-American settlement at Jamestown, Virgina), the rationale for fairly apportioning legislative representatives has never been legal residence (“citizenship”), but taxpayer status, in keeping with the republican principle no taxation without representation (as in the 1656 statute opening with the principled declaration that “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections”).
Seventeenth-century statutes did not privilege “the citizen population,” as distinguished from “the overall population.” And the annual census — intended to provide a true accounting for policymakers of the provincial population, assets, and GDP — was concerned with getting an accurate count of all “inhabitants” (documented, and not). The term “persons” most definitely included “immigrants living in the country without authorization,” who were counted annually like everyone else, and promptly taxed (with a few early exceptions for newcomers, and for “all the old planters that were here before or came in at the last coming of sir Thomas Gates”). Eventually, all inhabitants of Anglo-American settlements were taxed, with householders paying a poll tax on dependents (women, children, servants, slaves) as well as themselves.
The U.S. Constitution (1789) built on the existing body of Anglo-American law, especially as it had developed in Virginia. The founding principle of no taxation without representation carried over into the 18th century, as we see in the constitutional language of 1789 juxtaposing the two, with the broadest possible apportionment base for representatives, exempting only “Indians not taxed” from the count (in Virginia, tributary tribes who acknowledged themselves to be English subjects were by special provision excluded from the poll tax, as in the Assembly’s statutory list of tithables in 1723 and 1748):
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence-Plantations one, Connecticut five, New-York six, New-Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South-Carolina five, and Georgia three.
(Article I, Section II of the Constitution of the United States [1789], as printed in 1809; click/tap here for the text of the original first amendment, “Of Representation,” which would have added new constitutional milestones for representation affecting the early growth of congress)
This rationale was later retained in the 14th Amendment, which also mandates “counting the whole number of persons in each State, excluding Indians not taxed” as the basis for apportionment of representatives:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
(Section II of the Fourteenth Amendment to the Constitution of the United States; adopted in 1868)
Of note, the phrase “male inhabitants of such State, being twenty-one years of age, and citizens of the United States” here pertains not to the apportionment base for representatives, but to eligible voters, whose right to vote can not be denied or abridged without changing “the basis of representation” and reducing the apportionment of representatives proportionally.
Given that the practice of “counting the whole number of persons in each State, excluding Indians not taxed” dates back to the 1630s in Anglo-America, it was historically inaccurate for then President Trump to claim that
Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.
(Donald J. Trump, Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, issued on 21 July 2020)
Jill Colvin and Kevin Freking reported that “The presidential memorandum is expected to draw legal challenges.”
And so it should.
UPDATE 1: On 7/29/2020, U.S. Census Bureau director Steven Dillingham testified at an emergency congressional hearing regarding President Trump’s 7/21/2020 memorandum seeking to exclude people in the country illegally from being included during the process for redrawing congressional districts. Four former Census Bureau directors who served under Democratic and Republican presidents also testified, as did a Chapman University law professor, all of whom were asked whether President “Trump’s order violated the law, if every person should be counted and if apportionment needs to include every person, including undocumented workers.” For details, see “WATCH: Census Head Tells House Oversight Committee He Wasn’t Told about Trump District Drawing Order” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 7/29/2020).
UPDATE 2: President Trump’s latest artifice for suppressing the constitutionally-mandated count of the overall population (“the whole number of persons in each State, excluding Indians not taxed”) in the U.S.: “What Risks Does Ending the Census Count Early Pose?” (PBS NewsHour Weekend segment, first aired 8/9/2020).
SUMMARY: “The Census Bureau will stop its 2020 census count including in-person, mail, by phone and online on September 30, a month sooner than scheduled despite the delays caused by COVID-19. Hansi Lo Wang, a national correspondent at NPR, joins Hari Sreenivasan to discuss how this change may leave out historically undercounted groups including communities of color and immigrants.”
UPDATE 3: And another parry in the culture war President Trump is waging against this country’s radical legacy of universal suffrage: “GOP Ramps Up Effort to Monitor Voting after Restrictions Eased” by Eric Tucker and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 8/11/2020).
At this country’s founding in the early decades of the 17th century, the republicans who transplanted to Anglo-America were so intent on getting out the popular (male) vote that they passed laws levying substantial fines on those inhabitants who didn’t fulfill their civic duty and participate fully in all scheduled elections.
Now in 2020, the Republican powers-that-be are intent on suppressing the popular vote, manufacturing fraud where there is none, and abusing the power of the state and courts in order to disenfranchise voters. The Republican National Committee and the Trump campaign are suing to give new powers to “poll monitors,” allowing them to challenge the eligibility of voters who may not think or vote as they would wish: “The GOP is recruiting 50,000 monitors, typically party activists and specially appointed volunteers, across 15 battleground states. Meanwhile, the party has filed, or intervened in, lawsuits challenging election rules across the country, including cases in battleground states like Nevada, Wisconsin and Florida over laws related to absentee ballots and voting by mail.” (E. Tucker & N. Riccardi, n. pag.)
As described above, tampering with the popular vote in such a “tumultuous manner” is absolutely antithetical to the vision of popular government that drove the original Anglo-American democratical experiment.
UPDATE 4: The PBS NewsHour has again interviewed Hansi Lo Wang concerning looming problems with the 2020 census: “How Pandemic, Politicization Could Jeopardize 2020 Census” (first aired 9/1/2020).
Commenting on this interview, “Ron Dodson” points out that this will “be the first failed census since 1920 which, ironically was conducted during the final stages of a pandemic. Another historic footnote is the last time the Census Bureau was pressured into sharing citizenship data, thousands of Japanese-Americans ended up in internment camps.” (n. pag.)
As with the Trump administration’s efforts to roll back universal suffrage, executive branch interference in the 2020 Census, with the goal of distorting the count in order to further a partisan political agenda, is unconstitutional. A failed census — be it due to Trump administration malice and/or incompetence — is in violation of the law.
As described above, an accurate count of all the country’s inhabitants has been stipulated by law since the first American census, prescribed by the Virginia legislature in 1619.
UPDATE 5: The first of the several lawsuits “filed in tandem across the country, challenging Trump’s memorandum as unconstitutional” was argued before a three-judge panel in New York federal court on 9/3/2020: see “Attorneys Argue Trump’s Exclusion Order for Count Is Illegal” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 9/3/2020).
According to Schneider, attorneys for the State of New York and civil rights groups contend “that the president doesn’t have the discretion to ‘manipulate’ the census data to his liking once the count is finished.” “‘We don’t think it’s a difficult constitutional question,’ said Judith Vale, an attorney with the New York Attorney General’s Office. ‘The defendants have no authority, no discretion to subtract millions of undocumented immigrants.’” (n. pag.)
Conversely, the defense contends “that the president has almost unlimited discretion to exclude people in the country illegally from the apportionment count.” When questioned closely by one of the judges, a government attorney, Sopan Joshi, admitted “there was no historical precedent to exclude people in the country illegally from the apportionment process,” but argued that history doesn’t matter “since the president has broad leeway in making decisions on the census.” (n. pag.)
UPDATE 6: “The Trump administration has pushed the Census Bureau to speed up the timeline for the count, and the Republican-controlled Senate failed to pass an extension allowing it to continue into next year. That has exacerbated concerns by civil rights groups and others of hard-to-count communities getting missed, especially people of color like Native Americans.” (Matthew Brown, Lindsay Whitehurst, and Iris Samuels for The Associated Press, “Battered by the Virus, Tribes Race to Boost Census Count,” n. pag.; posted to the PBS NewsHour website, 9/8/2020).
“Native Americans are far from the only U.S. community of color facing a potential undercount, and a group of cities, counties, civil rights groups and the Navajo Nation are suing to extend the deadline. A judge in California over the weekend issued a restraining order that stops the Census Bureau from winding down its operations until a federal court hearing next week.” (M. Brown, L. Whitehurst, and I. Samuels, n. pag.)
UPDATE 7: “Supreme Court Halts Census in Latest Twist of 2020 Count” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 10/13/2020). This decision of 13 October 2020 is disappointing, in that the courts have apparently ceded their foundational role in ensuring an accurate census to the executive branch which, as of 2020, seeks the power to manipulate census data for partisan political gain — all of which is at odds with magistracy’s constitutional duty to “promote the General Welfare” (preamble to the U.S. Constitution).
In her dissent, Associate Justice Sonia Sotomayor articulated founding values when she prioritized accuracy (“prevention of ffraud”) over deadlines: “Moreover, meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress” (qtd. in M. Schneider, n. pag.).
UPDATE 8: “Supreme Court Will Review Trump Plan to Exclude Undocumented Immigrants from Calculations for Congressional Seats” by Robert Barnes (posted to The Washington Post website, 10/16/2020). SCOTUS has fast-tracked the case (Trump v. State of New York), with the hearing scheduled for 30 November 2020.
To summarize: a three-judge panel of federal judges in New York has ruled that President Trump’s July 21 memorandum “was ‘an unlawful exercise of the authority granted to’ him by Congress. It blocked the Commerce Department and the Census Bureau from including information about the number of undocumented immigrants — it is unclear how those numbers would be generated — in their reports to the president after this year’s census is completed.” The panel’s “lengthy but unsigned opinion” further states “that the question is ‘not particularly close or complicated’ based on federal law. ¶ ‘In short,’ the judges wrote, ‘the secretary is required to report a single set of figures to the president — namely, the tabulation of total population by states under the decennial census — and the president is then required to use those same figures to determine apportionment using the method of equal proportions.’ ¶ They added: ‘Legislative history and settled practice confirm our conclusion that “persons in each state” turns solely on residency, without regard for legal status.’ ¶ The Supreme Court is required to weigh in on decisions involving reapportionment, and it must either affirm or reverse the panel’s action.” (R. Barnes, n. pag.)
Contrary to the three-judge panel’s opinion, the Trump administration’s acting solicitor general, Jeffrey Wall, continues to argue that “there is ample historical and structural evidence supporting the president’s policy determination that the standard does not apply to all aliens living within a jurisdiction without the sovereign’s permission to settle there.” (qtd. in R. Barnes, n. pag.)
It is difficult for me to see how the Supreme Court, with a 6-to-3 conservative majority favoring an “originalist” interpretation of constitutional law, could possibly side with the Trump administration on this matter, and reverse the three-judge panel’s action.
But, “It is unclear whether the matter would divide the court along ideological lines” since “the issue is another mark of how the once-a-decade census has been transformed from a largely bureaucratic exercise into the centerpiece of a partisan battle.” (R. Barnes, n. pag.)
UPDATE 9: “3rd Court Blocks Trump’s Order on Congressional Seat Count” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 11/6/2020).
As of 6 November 2020, federal courts in New York, California, and Maryland have all ruled against President Donald Trump’s effort to exclude people in the country illegally from the apportionment count.
Of note, the latest Maryland decision on 11/6/2020 “was more like the New York ruling [which the Supreme Court will hear the end of November 2020; see above, Update 8] in that it merely found Trump’s order unlawful, rather than unconstitutional. The California court decided that Trump’s order violated the Constitution and federal law.” (M. Schneider, n. pag.)
UPDATE 10: From Anglo-America’s first census in 1619, lawmakers have been concerned with getting an accurate count of the country’s population.
In the 1600s, “prevention of ffraud” was achieved mostly by the imposition of hefty fines on those who did not comply with the laws governing reporting every “head” (inhabitant) in the province.
Come 2020, individual states long ago ceded their original census-taking roles to the federal government, which continues to have its own problems with “prevention of ffraud” — some even of its own making, as Mike Schneider reports in “Census Takers Say They Were Told to Enter False Information” (posted to the PBS NewsHour website, 11/7/2020).
“Under federal law, Census Bureau employees who make false statements can be fined up to $2,000 and imprisoned for up to five years. But census workers are rarely prosecuted for falsification of census responses since the Census Bureau is more concerned with identifying fraud and correcting mistakes than pursuing legal penalties, said Terri Ann Lowenthal, a former congressional staffer who specializes in the census. ¶ During the 2010 census, two managers in a Brooklyn census office were fired for instructing workers to falsify questionnaires, requiring around 4,220 households to be recounted.” (M. Schneider, n. pag.) Whether recounts will be ordered this year to ensure that we have trustworthy data going forward is anyone’s guess.
In the Comments section for this AP story, “amyinnh” posted: “The Mr was contacted 4 times to verify his info, Are you really not in NYC? I’m surmising the census takers are getting a lot of heat over the loss of citizenry in the major metros. Pandemic exodus is going to have impact for 10 years on house of representatives allocation and on federal funding allocation.” (n. pag.)
She surmises correctly! Cf. “California’s Manhattan Effect: The Wealthy Are Skipping the Census” by Nigel Duara (posted to the CalMatters website, 9/3/2020). The skewed California data will have a huge impact on “poorer communities that rely on taxpayer-funded social safety nets.” “An undercount of Californians has real-world consequences because it could cost the state a seat in the U.S. House of Representatives and less federal funding for affordable housing and anti-poverty programs, not to mention money for roads and infrastructure to school lunches.” (N. Duara, n. pag.)
UPDATE 11: “Census Case that Led to Head Count Halt Heads Back to Court” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 11/13/2020).
UPDATE 12: PBS NewsHour segment, “Supreme Court Reviews Trump Effort to Change Census Data on Immigrants” (first aired 11/30/2020). SUMMARY: “President Trump’s immigration policies and the U.S. census were back at the Supreme Court on Monday [11/30/2020]. As John Yang reports, the issues at stake in the case have the potential of shaping congressional and presidential politics for years to come.”
This piece includes an interesting debate of the issues by regular NewsHour viewers/discussants: click on speech bubble labeled “197 comments” (at head of lefthand sidebar) to access the Disqus discussion thread.
Supplemented by: “LISTEN: Supreme Court Appears Skeptical of Trump’s Census Plan” (posted to the PBS NewsHour website, 11/30/2020).
As pointed out here, “Justice Amy Coney Barrett was among several members of the court who said the [Trump] administration’s argument for broad discretion in deciding whom to exclude is troublesome because ‘a lot of the historical evidence and long-standing practice really cuts against your position.’” I share this originalist interpretation.
Again, I recommend the ensuing debate of the issues among NewsHour regulars. See the speech bubble labeled “171 comments” (top left of article) to access the related Disqus discussion thread.
UPDATE 13: “High Court Rules Challenge to Trump Census Plan Is Premature” by Mark Sherman of The Associated Press (posted to the PBS NewsHour website, 12/18/2020). This SCOTUS decision, delivered 12/18/2020, was about the timing of the plaintiffs’ “challenge to President Donald Trump’s plan to exclude people living in the country illegally from the population count used to allot states seats in the House of Representatives,” and not about the legality of Trump’s plan: “‘Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time,’ the court said in an unsigned opinion.” (M. Sherman, n. pag.)
As such, “It’s not clear that Friday’s [12/18/2020] decision will have much practical effect. Documents leaked to the House committee that oversees the Census Bureau suggest the apportionment numbers won’t be ready until after Jan. 20 [2021], when Trump leaves office and Joe Biden becomes president. The Census Bureau has acknowledged the discovery of data irregularities in recent weeks that put the Dec. 31 deadline in jeopardy.” (M. Sherman, n. pag.)
As pointed out by Dan Walters in his commentary, “GOP Congressional Wins Set Stage for 2022” (posted to the CalMatters website, 12/2/2020), multiple factors are at play in determining how many congressional seats California will have in 2022: “Demographers believe it’s likely that California’s slow population growth could reduce its allotment, now 53 seats, by one or two. However, it could lose even more if the U.S. Supreme Court, in a case that was argued just this week, supports Trump’s position that undocumented immigrants should be excluded from congressional seat calculations. ¶ California is home to as many as three million undocumented immigrants and traditionally the decennial census has included them, along with citizens and legal immigrants, in the complete count used to determine the number of each state’s congressional seats. ¶ Were undocumented residents excluded, it would translate into roughly three fewer seats for California, on top of the one or two seats the state might lose due to its overall slow population growth. ¶ That’s why California Attorney General Xavier Becerra has joined the Supreme Court battle over Trump’s directive. ¶ ‘For hundreds of years, the U.S. Constitution has been clear: everyone counts,’ Becerra said in a statement. ‘Here in California, we know that fundamental value extends beyond the census. No matter the color of your skin or where you come from, you count.’ ¶ However many seats California winds up having, their districts will be redrawn by a 14-member independent commission with five Democrats, five Republicans and four independents, and its first foray into redistricting a decade ago proved that its actions are not predictable.” (D. Walters, n. pag.)
UPDATE 14: “Census Bureau to Miss Year-End Deadline” by The Associated Press (posted to the PBS NewsHour website, 12/31/2020).
Of note, “The Census Bureau’s watchdog agency on Wednesday [12/30/2020] said it was concerned about lapses in quality control checks meant to detect falsifications by census takers. The Office of Inspector General said the Census Bureau failed to complete 355,000 re-interviews of households to verify their information was accurate. [...] Former Census Bureau director John Thompson said the quality of the data is ‘the overarching issue’ facing the Census Bureau. ¶ ‘If these are not addressed, then it is very possible that stakeholders including the Congress may not accept the results for various purposes including apportionment,’ said Thompson, who oversaw 2020 census preparation as the agency’s leader during the Obama administration. ¶ He said in an email that missing the Dec. 31 [2020] target date ‘means that the Census Bureau is choosing to remove known errors from the 2020 Census instead of meeting the legal deadline.’” (n. pag.)
UPDATE 15: “Trump’s Census Plan in Peril as Bureau Expects February Release of Count Results” by Hansi Lo Wang of NPR (posted to the KPBS website, 1/4/2021).
UPDATE 16: “Data Snags Cause Trump to Miss Giving Congress Census Data” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/11/2021).
“The earliest date the apportionment numbers will be ready is Feb. 9 [2021], as the Census Bureau fixes anomalies discovered during data processing, according to Department of Justice, which is representing the Commerce Department and Census Bureau in a lawsuit filed by a coalition of municipalities and advocacy groups in federal court in San Jose, California. ¶ If that date holds, the Census Bureau will not finish processing the numbers until several weeks after Trump leaves office Jan. 20 [2021], putting in jeopardy an unprecedented order by the president to exclude people in the country illegally from those figures. President-elect Joe Biden opposes the order, which was inspired by an influential GOP adviser who wrote that excluding them from the apportionment process would favor Republicans and non-Hispanic whites.” (M. Schneider, n. pag.)
UPDATE 17: “Census Halts Efforts to Comply with Trump Citizenship Order” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/13/2021).
UPDATE 18: “Census Bureau Says Trump’s Push to Exclude Undocumented Is Dead: The Census Bureau said in a statement on Saturday it has agreed not to release data used to apportion congressional seats until after ‘the change of [a]dministration’ on Jan. 20” by Zach Montellaro (posted to POLITICO’s website, 1/16/2021).
UPDATE 19: “Census Bureau Director to Resign amid Criticism over Citizenship Data” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/18/2021).
Cf. “Census Bureau Director Stepping Down after Outcry over Immigrant Count: Pressure mounted on Steven Dillingham after an inspector general memo alleged he pressured employees to rush a report on the number of unauthorized immigrants” by Zach Montellaro (posted to POLITICO’s website, 1/18/2021).
UPDATE 20: “Census Data for Congressional Seats Still Months Away” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 1/27/2021).
UPDATE 21: “Census Says No Redistricting Data until End of September” by Mike Schneider of The Associated Press (posted to the PBS NewsHour website, 2/12/2021).
According to Schneider, U.S. Census Bureau officials “say they need the extra time to fix not-unexpected irregularities found in the data,” attributing ongoing operational delays to the COVID-19 pandemic. A “bipartisan group of U.S. senators [Democratic U.S. Sen. Brian Schatz of Hawaii and Republican U.S. Sens. Lisa Murkowski and Dan Sullivan, both of Alaska] introduced legislation that would extend the deadline for turning in the redistricting data to Sept. 30” and would set “an April 30 deadline for turning in the apportionment figures used for divvying up congressional seats among the states.” (M. Schneider, n. pag.)
The “delayed release creates a chain reaction in the political world. ¶ Several states will not get the data until after their legal deadlines for drawing new districts, requiring them to either rewrite laws or ask courts to allow them a free pass due to the delay. Candidates may not know yet whether they will live in the district they want to run in by the filing deadline. In some cases, if fights over new maps drag into the New Year, primaries may have to be delayed. ¶ In the end, though, experts said the elections will proceed as normal in November 2022. The biggest impact will be to compress the window during which lawyers can challenge bad maps in court.” (M. Schneider, n. pag.)
Of note, “Eric Holder, a U.S. attorney general in the Obama administration, warned that the new deadline shouldn’t be ‘a pretext to hold 2022 elections on old maps’ in an effort at political gain, or to draw maps without significant public input, using the compressed timetable as an excuse.” (M. Schneider, n. pag.)
UPDATE 22: PBS NewsHour segment, “How the 2020 Census Affects Washington’s Balance of Power” (first aired, 4/26/2021). SUMMARY: “The first batch of results from the 2020 census count are in. The bureau released state population numbers today and revealed how the balance of power in the U.S. House of Representatives has been reset for the next decade, and could affect the electoral college. Congressional correspondent Lisa Desjardins and Cook Political Report’s Amy Walter break it down.”
As reported by Lisa Desjardins, “The Bureau showed three states in the South have gained enough population to add seats in Congress, Texas gaining two seats and North Carolina and Florida one apiece. ¶ The other three states adding one each are West, Colorado, Montana and Oregon. In turn, seven states will lose one seat each, California and then a cluster of Rust Belt states, West Virginia, Pennsylvania, Ohio, Michigan, Illinois, and New York. ¶ For New York, some sting to the loss. Officials said the state needed to count just 89 more people to keep all of its congressional seats. [...] states that lost, like New York, are sure to be unhappy, along with some states that gained, like Florida, which expected two new seats, not just one. It’s too late to add more population, but states do have one option: to appeal these numbers in court.” (n. pag.)
According to the U.S. Census Bureau, our national population topped 331 million in 2020.
Amy Walter describes the impact the new census data will have on apportionment: “[...] the real nitty-gritty is going to come later this summer when the detailed data is released and they have to start drawing those lines. ¶ That is when you are going to hear words like gerrymander. Even states that aren’t gaining or losing, unless you are a state that only has one congressional district, you have to redraw your lines. Population shifted around a lot. Think about a place like Georgia, where the Atlanta suburbs have been booming, not so much in the other parts in the state. ¶ So, they’re going to have to readjust those congressional lines. You can gain or lose a seat as a party just because — even if you are not gaining or losing a congressional district, right? ¶ The good news for Democrats, they have more control over the process than they did in 2010, the last time the lines were drawn. The bad news for Democrats, the good news for Republicans is that Republicans still control more than twice as many congressional district lines, in terms of, they have total control for drawing that many more lines. ¶ That is likely to help, as I said, especially in places that are fast growing, Texas, North Carolina, but also in a place like Georgia, where Democrats have made really big gains in these last two years, but Republicans control the entire line-drawing process. ¶ And so what you may see there is Democrats actually winning two Senate seats, but in the next upcoming election, they may lose a congressional district.” (n. pag.)
Related stories are here: “Census: Texas Gains Congress Seats, California Loses for the First Time” by Mike Schneider and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 4/26/2021).
And here: “Census Surprise: Texas Gains Only 2 Seats as Shift to Sun Belt Slows: The gains and losses by states for the next decade were smaller than most observers expected” by Ally Mutnick (posted to POLITICO website, 4/26/2021).
And here: “Census Data Leaves Latinos Wondering: Were We Counted? After warnings about a potential undercount of the Latino population, three key Sun Belt states made smaller than expected gains in House seats” by Zach Montellaro and Ally Mutnick (posted to POLITICO website, 4/27/2021).
UPDATE 23: “Loss of House Seat May Be Bad News for Funding, Access to Reps” by Charles T. Clark (San Diego Union-Tribune, 4/30/2021, pp. B1 and B3), retitled “CA Lost a House Seat Despite Massive Census Outreach; But There Are More Issues” for online posting.
Clark notes that “California spent $187 million on census outreach, more than any other state in the nation. ¶ Community groups across the state and in San Diego launched unprecedented outreach campaigns. Members of San Diego’s sprawling Count Me 2020 coalition volunteered more than 3,500 hours to bolster response rates. ¶ They were largely successful, despite a pandemic knocking out face-to-face interactions and attempts by the Trump administration to suppress participation. ¶ In San Diego County nearly 74 percent of households responded to census surveys — a more than 5 percent increase over the 2010 census — and California’s response rate, 70 percent, exceeded the national average. ¶ Yet California will lose a congressional seat — even after our population increased by more than 2 million — because our 6 percent growth rate is below the nation’s 7.4 percent average. ¶ The fallout goes beyond a lost House seat. ¶ It will potentially impact community services by affecting federal funding. And it will likely reduce the ability of some community organizations to access elected officials. It also raises questions about the quality and fairness of our system of political representation.” (C. T. Clark, B1)
UPDATE 24: “Delayed Census Data Kicks Off Flood of Redistricting Lawsuits: Litigation Is Already Piling Up Before New Maps Are Even Drawn” by Zach Montellaro (posted to POLITICO website, 5/1/2021).
“So far, California asked for and received a redistricting extension from state courts last year, while Michigan redistricting officials recently asked courts to extend their redistricting window. Other states have sued the Census Bureau to try to force an earlier release of redistricting data. ¶ Ohio was the first state to file a case, which was dismissed by federal district court, a decision the state appealed. Alabama also filed a federal lawsuit challenging both the release schedule and the use of ‘differential privacy,’ a process that will blur demographic data on small geographic levels. The Census Bureau says it is necessary to protect any one individual from being identified, but mapmakers fear it makes the data functionally unusable. ¶ Other states are considering using data other than the decennial count to draw their map lines — including data from the American Community Survey, another Census Bureau product that is independent of the decennial count and is based on a survey instead of a hard count, which would almost assuredly spawn legal challenges. ¶ ‘It’s not that the ACS data is in itself wrong, but it is like grabbing a pair of sunglasses when you need to read the fine print,’ Feng said. ‘It is not going to give you the sharp focus you need.’ ¶ New York Gov. Andrew Cuomo also said he was ‘looking at legal options’ after his state lost out on an additional House seat on Monday by 89 people. But courts have not acted on similar cases in the past, redistricting attorneys say, while noting the pandemic has introduced a new dimension of uncertainty.” (Z. Montellaro, n. pag.)
UPDATE 25: Given the brewing legal battles over the Census Bureau’s implementation of “differential privacy” (scil., Alabama’s federal lawsuit, as reported on above [see Update No. 24]), I want here to recommend Zack Stanton’s fascinating interview with Tufts University mathematician, Moon Duchin: “Is Gerrymandering About to Become More Difficult?: A New Approach in the Way the Census Aggregates Its Data Could Make It More Difficult to Do Extreme Gerrymandering, Says Moon Duchin” (posted to POLITICO Magazine website, 5/27/2021).
With the 2020–2021 census, “the Census Bureau has added random noise to its data that makes it slightly inaccurate at the smallest, most zoomed-in level, but accurate at an aggregate, wide-angle view. The approach, known as ‘differential privacy,’ aims to protect the anonymity of census respondents amid a glut of third-party online data that could otherwise make it possible to personally identify census respondents.” This, in itself, is a worthy goal, but there are other benefits, too: the new practice of “differential privacy” may actually prevent “extreme gerrymandering” and “complicate partisans’ designs for the 2022 congressional maps.” (Z. Stanton, n. pag.)
Probing into the psychology of mapping, Duchin explains about the aesthetic pull of electoral maps and “the difference between neutrality and fairness in map designs.”
“Is a ‘badly’ shaped district bad? [...] If we required ‘good’ shapes, would we successfully eliminate the things that bother us about gerrymandering? [...] Badly shaped districts play with our intuition. We see them and think they must be abusive; that something has to be wrong. But we now have lots of examples — just from the last cycle — that show us that while badly shaped districts are a fairly successful flag that somebody was trying to do something, they don’t really tell us what their agenda was, or whether it was nefarious or benign. [...] On the other side of the equation, though, is a lesson that we gerrymandering obsessives have learned in the last 10 years: A requirement for ‘good shape’ doesn’t get you very far. North Carolina and Pennsylvania, those are two states where we had really clear examples [of this in the past decade]. The initial congressional district plans in those two states were very noncompact, with these shapes that I like to call ‘tumors’ and ‘fractals’ — completely irregular, not plump or well-rounded or whatever other descriptors we like. They looked unreasonable, and actually were unreasonable. But in both cases, under pressure, when the legislatures had to redraw, they came up with maps that looked great, but locked in all the same partisan advantage. ¶ That’s sort of the dual disappointment of district shape: Bad shapes are not necessarily bad, and good shapes are not necessarily good.” (M. Duchin, n. pag.) Indeed, “a district can be distorted-looking, yet drawn with totally good intentions, yet still cause democratic harm by giving the appearance of ill intent.” (Z. Stanton, n. pag.)
Duchin also addresses complicated issues of proportional representation.
“The two simplest flags of wrongdoing, in terms of public intuition and conventional wisdom, one is about shape and the other is about disproportions.... With disproportions, you heard this talked about a lot in the last [redistricting] cycle in the states that were sued: Maryland, Pennsylvania, North Carolina, Wisconsin and Texas. (There will always be lawsuits in Texas; I think that’s just a natural law.) Wisconsin’s voting patterns were roughly 50-50 [between Democrats and Republicans], but you had a more than 2-to-1 ratio of Republicans to Democrats in the state Legislature. Pennsylvania had roughly 50-50 voting patterns, but a 13-5 Republican-majority in its congressional delegation; in North Carolina, same thing, and its delegation was 10-3 [in favor of Republicans]. ¶ It appeals to that same hard-wired intuition as in the Massachusetts example, where you had 2-to-1 voting, but a complete sweep for Democrats: that, absent any gerrymandering, you should expect the share of votes [statewide] to be roughly reflected in the share of seats. It’s about proportionality. One problem with that is that sometimes just the actual geography of where people live and how they vote makes it hard or even impossible to get to equal proportions. ¶ But there’s another problem, which conservatives on the court like to hold up: Nobody said proportionality was the goal. That might be your intuition, but if you want a proportional system, the conservative justices like to say, you should move to Europe. Most of the rest of the world has a different way of composing its legislature that is built to guarantee more proportionality with voters’ party preferences. We don’t do that in the U.S. So, we’re in a funny position, where the universal intuition of what ‘fairness’ would mean is nowhere in the rules. ¶ OK, so what might you do about that? Well, one thing you can do is to make it a rule. Ohio was maybe the first state to do that, and it happened pretty recently. In 2018, Ohio voters passed a [state] constitutional amendment creating a commission — a not-very-independent commission, it turns out — and written into those rules was the goal that the [partisan] share of seats should reflect the share of [statewide] votes. And as far as I know, that’s the first spelled-out instance of setting up proportionality as a goal. ¶ For a mathematician like me, that’s really sensible: State your goals, then we can try to achieve them. But when your goals remain really vague, it’s very difficult to talk about why one might be better or fairer than the other.” (M. Duchin, n. pag.)
UPDATE 26: PBS NewsHour segment, “What Texans Stand to Gain and Lose from the Redistricting Battle Now Underway” (first aired on 6/11/2021).
SUMMARY: “State legislatures across the U.S. eagerly await new census data that would impact the redrawing of congressional district lines. One state that has a lot at stake is Texas, which is gaining two congressional seats due to population growth largely fueled by communities of color. But they may not be the ones benefiting from the redistricting fight. NewsHour’s Lisa Desjardins and Daniel Bush report.”
The difficulty of accomplishing “extreme gerrymandering” when redrawing 2022 congressional maps now impacts even states like Texas, where Republicans control the state legislature and “are driving the bus.” As Daniel Bush reports: “And what you can see from speaking to Republicans is the sense that it is harder and harder, when they look at how to carve up these districts and find Republican votes, to find those votes, because, increasingly, these are Democratic areas. Joe Biden, President Biden, won Fort Bend County by 10 points last year. [...] Republicans only need to pick up five seats to win back control of Congress. So they look at Texas as a place where they can gain a couple of seats. It’s very important. ¶ And then, of course, nationally, what the census showed us, Lisa, is that states in the Northeast are losing population. People are moving to the South, the Southwest. And those areas, which used to be Republican states, Republican strongholds, are becoming more and more competitive. ¶ So the landscape is shifting.” (n. pag.)
UPDATE 27: “Democrats Face New Hurdles in Legal Fight over Redistricting” by Nicholas Riccardi, of The Associated Press (posted to the PBS NewsHour website, 8/20/2021).
Riccardi here reports on the “changed legal climate” of the 2020s, for which “federal courts are newly hostile to claims of unconstitutional partisan gerrymandering.” This follows the Supreme Court’s 2019 ruling that, even though racial gerrymandering remains illegal under federal law, partisan gerrymandering can no longer be overturned by federal courts (only state courts retain this power). As summarized by Michael Li (of the Brennan Center for Social Justice in New York City): “The Supreme Court has created this weird binary — if it’s [gerrymandering] on the racial side, it’s bad, but if it’s on the partisan side, it’s okay.” (qtd. in N. Riccardi, n. pag.)
This makes racial gerrymandering cases “a double-edged sword. Democrats can argue Republican gerrymanders are racial, rather than partisan, but GOP lawyers can just tell judges they were following the Supreme Court’s direction and looking only at party, not race.” (Michael Li, qtd. in N. Riccardi, n. pag.) Indeed, “Republicans in the North Carolina legislature — who have complete control over the process because the state’s Democratic governor cannot veto a redistricting bill — have already taken advantage of that dynamic by formally declaring they won’t use racial data in drawing lines.” (N. Riccardi, n. pag.)
Despite popular belief that “party affiliation often runs along racial lines, with Black, Latino and Asian American voters more likely to be Democratic and white voters more likely to be Republican,” the flurry of litigation over racial gerrymandering “won’t always help Democrats,” as noted by Tom Saenz (president of the Mexican-American Legal Defense and Educational Fund), who told Riccardi “that, in some states like California, his group has fought with white Democrats over the creation of majority Latino districts.” (N. Riccardi, n. pag.)
Moreover, “The longer odds of [gerrymandering] litigation are particularly ominous for Democrats, who start the process at a significant disadvantage. They control line-drawing in states with 75 House seats, while the GOP controls the process in states with 187 seats.” As such, experts anticipate “a decade of extreme gerrymandering” ahead, unless “Congress passes an ambitious election bill known as the For the People Act, which would, among other provisions, outlaw partisan gerrymandering. But the legislation is stuck in the Senate....” (N. Riccardi, n. pag.)
Cf. POLITICO’s interview with mathematician Moon Duchin for a more optimistic view of “extreme gerrymandering” and its real-world impact after states redraw their 2022 congressional maps.
UPDATE 28: Jim Hightower’s take on a Polish uprising (over suffrage) in 17th-century Jamestown, arguing that from the beginnings of self-government in 1619, foreign workers resident in Anglo-America earned the right to political representation: “Vox Populist: No Vote, No Work!” (in the Dec. 2021/Jan. 2022 issue of The Progressive, vol. 85, no. 6, p. 70).
UPDATE 29: For a fascinating look at Michigan’s implementation of citizen mapping, see the PBS NewsHour Weekend segment, “In Michigan, an Effort to Take Politics Out of Redistricting” (first aired on 9/25/2021).
As introduced by NewsHour Weekend’s anchor, Hari Sreenivasan: “Every ten years since 1790, the U.S. has embarked on a constitutionally-mandated count of its population. 2020 was no different. Despite a pandemic and extended litigation over what questions should be asked, there is now new data on who lives where. ¶ Tonight, we begin a new occasional series on that data, part of the massive trove of economic and demographic statistics produced by the U.S. Census Bureau. We begin with a look at redistricting, the process by which states use population counts to redraw congressional and state legislative districts. ¶ States have wide latitude in how they go about this process. The vast majority rely on politicians to draw districts. But since 2010, a growing number of states, including Michigan, have created independent commissions, designed to take this process out of the hands of politicians. In a state that’s deeply divided politically, it’s a radical experiment in trying to create more fair legislative districts. NewsHour Weekend’s Christopher Booker reports.” (n. pag.)
And for an update re. Michigan’s independent redistricting commission, see the PBS NewsHour Weekend segment, “States Redraw Districts Ahead of Midterms” (first aired, 1/16/2022).
SUMMARY: “Several states across the country have redrawn legislative districts on the basis of the 2020 census. In Michigan, the lines were drawn for the first time by an independent commission made up of citizens. NewsHour Weekend’s Christopher Booker has an update to our report from there, and Hari Sreenivasan speaks with Adam Podowitz-Thomas, senior legal strategist at the Princeton Gerrymandering Project.”
UPDATE 30: A good discussion, led by Lisa Desjardins, of how the loss of competitive districts results in yet more fake representation: PBS NewsHour segment, “Dems Control the House by Only 3 Seats. Here’s How Redistricting Efforts Could Affect That” (first aired, 11/24/2021).
“[T]he biggest victim in all of this gerrymandering is competition. We’re likely to see the number of competitive seats in the House reduced by as much as a third.” (n. pag.)
UPDATE 31: “Why Gerrymandering Needs to Land in State Courts: The latest redistricting cycle is set up to be a disaster for democratic fairness. Unlikely as it sounds, there’s a path to fix it” by Joshua A. Douglas (posted to POLITICO’s website, 11/24/2021).
Douglas argues in this op-ed that state courts “offer the strongest path available to challenge [...] egregious partisan gerrymanders.” “So far, although there have been some challenges brought in state courts, Democrats and others are focusing on federal court litigation — including under the Voting Rights Act, especially given that many of the new maps will minimize the power of racial minorities. Unfortunately, however, the Supreme Court has made it harder for these claims to succeed, issuing restrictive rulings that allow partisan map drawers to use sophisticated algorithms to achieve their partisan ends while still ostensibly complying with rules that prohibit diluting minority voting rights.” (J. A. Douglas, n. pag.)
“Given the aggressive partisan behavior of state legislators, it might seem absurd to hope for a state-level fix. But in fact, state constitutions are a source of robust voting rights protection — meaning state courts could have a crucial role to play. ¶ Virtually all state constitutions have a clause granting state citizens the fundamental right to vote. (Only Arizona’s does not, but its courts have construed its state constitution as still essentially conferring the right to vote.) About half of the state constitutions declare that elections must be ‘free,’ ‘free and equal,’ or ‘free and open.’ And a few state constitutions, such as Florida’s, even dictate rules that require fairness in redistricting.” (Joshua A. Douglas, n. pag.)
UPDATE 32: The debate over apportionment moves to the local level: “LA County’s Board Is Too Small for 10 Million People” by Dan Walters (posted to CalMatters website, 11/24/2021).
“Los Angeles County’s supervisors have opposed previous enlargement proposals and local voters have rejected them eight times over the last century, thanks to opposition from special interests that prefer the status quo. However, the case for expansion is compelling, as the machinations by the county redistricting commission again underscore.” (Dan Walters, n. pag.)
UPDATE 33: The debate over competitive districts continues: “New Maps Spark Debate over Majority-Minority Districts” by David Eggert and Nicholas Riccardi of The Associated Press (posted to the PBS NewsHour website, 11/25/2021).
“Rebecca Szetela is a lawyer who describes herself as an independent, and a white woman who chairs Michigan’s new Independent Citizens Redistricting Commission. Its job is to redraw the lines of legislative seats to promote more partisan competition in a state where Republicans have dominated the Legislature for decades. One of the best ways to do that, and empower minority voters, Szetela and other commissioners argue, is putting some of the majority-Black neighborhoods in Hollier’s district in other seats, where they may have more say over Michigan’s leadership. ¶ For Hollier’s 2nd Senate District, that means some of its Detroit neighborhoods would be grafted on to mostly white districts, and his own seat would stretch across Eight Mile Road, the infamous boundary between Detroit and its first-ring, majority white suburbs. Its Black voting-age population would drop to 42%. ¶ Hollier, like other Black lawmakers, is furious, saying that move jeopardizes Black elected officials. ‘By and large, Black people vote for Black people and white people vote for white people,’ Hollier said. ‘It’s just the reality. It’s got nothing to do with me. Draw maps that majority-Black communities can win.’ ¶ Whether Hollier is right is at the heart of a heated debate over how to ensure racial and ethnic minority communities can elect the officeholders of their choice. The fight is complicated and wonky — like most surrounding the once-a-decade redistricting process. But the stakes are clear: Black, Latino and Asian Americans are underrepresented in state legislatures.” (David Eggert and Nicholas Riccardi, n. pag.)
UPDATE 34: Again, how the loss of competitive districts results in yet more fake representation: “Redistricting Is Resulting in Fewer Congressional Swing Seats – and More Political Polarization” by Nicholas Riccardi, for The Associated Press (posted to the PBS NewsHour website, 12/9/2021).
“In the last presidential election, only 13 of 435 House seats switched between the two parties. It’s evidence of a decline in competitiveness that dates from the middle of the 20th century and has accelerated as the two main political parties have become more ideological. In the 1950s, political handicappers ranked about 130 of the seats in the House as competitive, but now only categorize about 48 like that, said Josh Huder, a senior fellow at Georgetown University’s Governmental Affairs Institute. ¶ Huder notes redistricting isn’t the only cause. An even bigger factor is that voters are choosing to live in places where they are surrounded by like-minded neighbors — Democrats clustering in cities, Republicans in rural areas, for example. That makes it more likely that districts will be dominated by voters of just one party.” (N. Riccardi, n. pag.)
“‘It’s almost inevitable that we’re going to see polarization in these really safe districts,’ said Adam Podowitz-Thomas of the Princeton Gerrymandering Project, which monitors redistricting. ‘It’s going to be harder for moderates or people who work with the other side to get elected in these districts.’” (Nicholas Riccardi, n. pag.)
UPDATE 35: “Why Is California’s Redistricting Commission under Increasing Scrutiny?” by Sameea Kamal (posted to CalMatters website, 12/8/2021).
“IN SUMMARY / The independent citizens panel isn’t just being criticized for the legislative and congressional districts it’s drawing. It’s already in court over alleged secret meetings and studies. Now, it’s facing questions over its spending and budget.”
“While the process hasn’t been perfect, James Woodson, policy director for the California Black Census and Redistricting Hub, said the independent commission does more to serve voters rather than self-interested politicians. ¶ ‘This process has given Californians like the ones our coalition engages — Black immigrants, refugees, formerly incarcerated people, houseless folks who are traditionally left out of processes like this — the opportunity to engage the commission and have their voices heard,’ he said. ‘We would not trade this process for another.’ ¶ Still, Woodson noted some ways the process could be improved, including more time for commissioners to be trained on California’s laws and diverse makeup.” (Sameea Kamal, n. pag.)
UPDATE 36: A welcome return to America’s founding tradition of radical republicanism, rooted in expanded voting rights: “New York City Lawmakers Pass Bill Giving Noncitizens Right to Vote” by Bobby Caina Calvan, of The Associated Press (posted to the PBS NewsHour website, 12/9/2021).
“Legally documented, voting-age noncitizens comprise nearly one in nine of the city’s 7 million voting-age inhabitants. The measure would allow noncitizens who have been lawful permanent residents of the city for at least 30 days, as well as those authorized to work in the U.S., including so-called ‘Dreamers,’ to help select the city’s mayor, city council members, borough presidents, comptroller and public advocate.” (B. C. Calvan, n. pag.)
“More than a dozen communities across the United States already allow noncitizens to cast ballots in local elections, including 11 towns in Maryland and two in Vermont. But New York City is the largest place by far to give voting rights to noncitizens. ¶ Noncitizens still wouldn’t be able to vote for president or members of Congress in federal races, or in the state elections that pick the governor, judges and legislators. ¶ The city’s move could enflame the national debate over voting rights, particularly among some who wrongly assert that rampant fraud by noncitizens has taken place in federal elections.” (Bobby Caina Calvan, n. pag.)
UPDATE 37: “Biden White House Moves to Protect Data from Politics after Trump Census Pressure” by Mike Schneider, for The Associated Press (posted to the PBS NewsHour website, 1/18/2022).
“[N]ew documents released over the weekend revealed that political appointees in the Trump administration’s Department of Commerce, which oversees the Census Bureau, tried to exert unusual influence on the 2020 census, the nation’s once-a-decade head count overseen by statisticians, demographers and government bureaucrats. The documents, made public through a Freedom of Information Act lawsuit by the Brennan Center for Justice and first reported by The New York Times, showed alarm bells going off within the Census Bureau about efforts by political appointees in the Commerce Department to interfere with the count.” (M. Schneider, n. pag.)
“At the time, Census Bureau officials were under pressure to carry out two orders from then-President Donald Trump. ¶ The first Trump directive ordered that people in the country illegally should be excluded from the state population count used for divvying up congressional seats among the states, also known as the apportionment numbers. Even though the U.S. Constitution mandates that every U.S. resident be counted in censuses, Trump said at the time that including people in the country illegally was ‘part of a broader left-wing effort to erode the rights of Americans citizens, and I will not stand for it.’ ¶ The second directive ordered the Census Bureau to gather citizenship information about every U.S. resident using administrative records after the Supreme Court nixed the Trump administration’s effort to add a citizenship question to the census questionnaire. Critics claim the citizenship question was inspired by a Republican redistricting expert, who believed using citizen voting-age population instead of the total population for the purpose of redrawing of congressional and legislative districts could be advantageous to Republicans and non-Hispanic whites. The redistricting expert has since died, but some of the guidance he was giving on redistricting has surfaced publicly.” (Mike Schneider, n. pag.)
UPDATE 38: For an interesting look at the politics of reapportionment and how “straight-ticket voting” enables gerrymandering, see the PBS NewsHour segment, “How the 2020 Census Data Has Started New Gerrymandering Battles” (first aired, 1/25/2022).
In response to Judy Woodruff’s question, “Just a couple of basics. What is this reapportionment supposed to accomplish? It’s every 10 years after the new census numbers come out. What’s it supposed to accomplish? And, in most cases, it’s done by the legislature, but in some by an outside commission?” Dave Wasserman replied: “That’s right. ¶ And this really happens in two steps. The first is reapportionment, which is, the census determines how many seats each state gets in Congress for the next 10 years. [...] Texas is picking up two seats, five other states picking up one seat each, seven states losing a seat, including California for the first time since gaining statehood. ¶ But the bigger impact is how the lines are then redrawn within every state to rebalance population according to the census data down to the block level. And Republicans have more control over the process than Democrats. In states where legislatures, partisan legislatures, draw the lines Republicans hold 20 states, totaling 187 districts, whereas Democrats have the final say in eight states totaling 75 districts. ¶ There are 10 states have independent or bipartisan commissions. There are also six states where control is split between the parties and courts may need to step in.” (n. pag.)
As regards electoral maps, Judy Woodruff asked: “And let’s talk about what it looks like so far. Of the states that have dealt with this and had their maps, their redrawn lines approved, I think 33 of the 50 states at this point have had their maps approved.” To which Wasserman replied: “That’s true. And some are pending litigation. ¶ But, for the most part, because geographic polarization is so high and straight-ticket voting is so high, how lines are drawn predetermines election outcomes. And so, if you have a district that’s drawn that Trump would have won with 55 percent or that Biden won with at least 55 percent, you can be reasonably sure that that district is going to go blue or red. ¶ And so parties who are redrawing these lines, they have every incentive to draw safe seats, so they don’t have to keep spending money on them. We could see the number of competitive districts decline by as much as a third this cycle.” (n. pag.)
UPDATE 39: PBS NewsHour segment, “How a New Law ‘Turbocharges’ Difficulties of Voting in Texas” (first aired, 1/28/2022).
The new Texas law (Senate Bill 1 for 2022) is being touted by its authors as ensuring “election integrity”: “Senate Bill 1 makes it easy to vote and hard to cheat,” according to Texas state senator Bryan Hughes.
But the new I.D. number matching requirements (voters must provide either a partial Social Security number or a driver’s license number on their mail-in ballot application, “And that number has to match what’s on their original voter registration”) has led to “needless chaos and mass disenfranchisement” of “fully qualified, eligible” voters, including “this 95-year-old World War II veteran, who says his mail-in ballot application has been denied twice due to new requirements.” (n. pag.)
Plus, elections workers in Texas “are frustrated that they can’t help voters fix their applications, because the law now prohibits them from doing so.” (n. pag.)
Geoff Bennett asks: “Is this voter suppression by design, or is this just benign negligence on the part of lawmakers, who failed to heed warnings from folks like yourself?” To which James Slattery (of the Texas Civil Rights Project) responded: “It’s hard not to see this as a feature, rather than a bug. ¶ There is, I think, an element of bureaucratic malpractice here too, just because the state’s election infrastructure is so underfunded already, that, when you put a new 76-page bill on top of it, it’s going to be bad regardless.” (n. pag.)
As noted above, founding state statutes in Virginia regulating elections had similar concerns about the method of conducting elections and determining the result — excluding disqualified persons from participating; enabling each voter to express his individual choice without intimidation, without fear of oppression, and without being influenced by bribery; securing a fair and honest counting of the ballots and determination of the result of the election — but achieved “election integrity” in ways that radically enlarged — not abridged — the franchise.
It is these founding values of self-government & liberty for all that the Texas state legislature now turns its back on, in line with the subsequent historical development of popular suffrage in Anglo-America after the restoration of monarchy in 1660. A true “election integrity” movement would focus on rooting out and punishing electoral fraud and fraudsters, which originally included all those who undermine the popular vote, as have former President Donald Trump and his allies with their lies about “rigged”/“stolen” elections, which have been thoroughly debunked: “Brad Raffensperger, the Republican Georgia secretary of state, testified that when Trump and his associates pushed Georgia election officials to look into claims of voter fraud, he found nothing. ¶ ‘They said that there was over 66,000 underage voters. We found that there was actually zero. They said that there was 2,423 non-registered voters. There were zero,’ Raffensperger said. ¶ ‘They said that there was 2,056 felons. We identified less than 74 or less that were actually still in a felony sentence. Every single allegation, we checked. We ran down the rabbit trail to make sure that our numbers were accurate,’ he said.” (Brad Raffensperger, Republican Georgia secretary of state, in testimony before the House Jan. 6 select committee on Day 4; qtd. in “The Biggest Takeaways from the Jan. 6 Hearings” by Casey Kuhn and Julia Griffin [posted to the PBS NewHour website, 7/29/2022])
But the contemporary “election integrity” movement has been co-opted and misdirected to serve a partisan agenda: see the Wikipedia article, “Republican efforts to restrict voting following the 2020 presidential election.”
UPDATE 40: “Florida Halts Redistricting Effort after DeSantis Asks Florida Supreme Court to Weigh In: He recently submitted his own map that throws out the district now held by Rep. Al Lawson, a Black Democrat from Tallahassee” by Gary Fineout (posted to POLITICO’s website, 2/1/2022).
Florida Governor Ron DeSantis has asked Supreme Court justices for an advisory opinion as to “whether the Florida Constitution’s non-diminishment standard mandates a sprawling congressional district in northern Florida that stretches hundreds of miles from East to West solely to connect black voters in Jacksonville with black voters in Gadsden and Leon Counties (with few in between) so that they may elect candidates of their choice.” (qtd. in G. Fineout, n. pag.)
Critics, such as Rep. Al Lawson, who holds the north Florida district, see this as an “effort to disenfranchise every minority voter north of Orlando.” (qtd. in G. Fineout, n. pag.)
While “it was the state Supreme Court that signed off on a map that included the current configuration for Florida’s 5th congressional district” which DeSantis seeks to redraw, “At the time, the court, which still had a liberal majority, approved a minority-access district that stretched across north Florida instead of one that connected Black neighborhoods in Orlando and Jacksonville. Justices contended that the map initially produced by the Legislature had been tainted by partisan motivations that were barred by the Fair Districts initiative approved by voters in 2010. ¶ But DeSantis has remade the high court with several key appointments since he took office in early 2019. Chief Justice Charles Canady and the court’s conservative majority since then have already overturned multiple previous decisions and rulings.” (G. Fineout, n. pag.)
“The map that the governor’s general counsel submitted to legislators last month could likely result in the number of seats held by Black lawmakers going from four on current proposed congressional maps to two, while boosting the number of seats Donald Trump would have won in 2020 to 18 from the 16 on the map being considered by the GOP-led Florida Senate.” (Gary Fineout, n. pag.)
AND FOR AN UPDATE ON FLORIDA’S CONTENTIOUS BATTLE OVER REDISTRICTING: “Florida Supreme Court Locks In DeSantis-Backed Redistricting Map: Groups that challenged the map sharply criticized the ruling and said they will not drop their underlying lawsuit” by Gary Fineout (posted to POLITICO’s website, 6/2/2022).
The state Supreme Court’s 6/2/2022 decision “freezes in place for now a new congressional map for the nation’s third-largest state that will likely give Republicans a potential 20-8 advantage in a state where the GOP has only a slight voter registration advantage. This is another big blow to Democrats’ hopes of holding onto their majority in the U.S. House. ¶ This new map also dismantles the North Florida congressional seat held by Rep. Al Lawson, a Black Democrat.” (Gary Fineout, n. pag.)
UPDATE 41: The SCOTUS decision on racial gerrymandering with major implications for voting rights in this country: “Supreme Court Sides with Alabama Republicans Despite Impact on Black Voters” (a PBS NewsHour segment, first aired 2/8/2022).
This “ruling from a divided Supreme Court allows Alabama to rely on a congressional map that a lower court said likely denied Black voters in that state an additional member in the U.S. House of Representatives. ¶ Republican lawmakers in Alabama drew congressional districts following the 2020 census to give Black voters control of one of seven of the state’s congressional seats. [...] the new map has just one majority district — majority-Black district in a state where more than a quarter of the population is African American. ¶ Now, a three-judge federal panel ruled last month that the arrangement likely violated the Voting Rights Act. The Supreme Court with its ruling further [whittled] away at that landmark 1965 law.” (Geoff Bennett, n. pag.)
Pushing back against the argument that “majority-Black districts are somehow problematic” because they assume that “Blacks can only be elected in Black districts,” Janai Nelson of the NAACP Legal Defense and Educational Fund counters that racial gerrymandering has created this unfair situation, which only corrective racial gerrymandering can solve: “Black voters are consistently manipulated and packed into districts because of their race, because of how they will vote, and because we want to deny them an equal opportunity to elect candidates of their choice. ¶ And I would only say that this issue went before a three-judge panel that consisted of two appointees from President Trump. All three judges on that panel decided, based on the record evidence, that the maps of Alabama likely discriminate against Black voters.” (Janai Nelson, n. pag.)
UPDATE 42: “Census Undercounted Black People, Hispanics and Native Americans in 2020: Census Bureau Director Robert Santos noted the 2020 undercounts reflect ‘limitations’ in the decennial tally” by Samuel Benson (posted to POLITICO’s website, 3/10/2022).
“The 2020 census undercounted Black people, Hispanics and Native Americans while overcounting white and Asian people, according to a report released by the Census Bureau” on 3/10/2022.
“The Black or African American population was undercounted at a rate of 3.3 percent, up from 2.1 percent in 2010. The American Indian or Alaska Native populations living on reservations were undercounted at a rate of 5.6 percent, higher than the 2010 rate of 4.9 percent. The American Indian or Alaska Native population not living on reservations was not miscounted. ¶ The Census Bureau noted the difference in the 2020 census’ undercount rate for the Black or African American population and the American Indian or Alaska Native population living on reservations, when compared to the 2010 census, was not statistically significant. ¶ Data from the sample survey also suggest the non-Hispanic white population and the Asian population were overcounted, and the difference in overcount between 2010 and 2020 was statistically significant.” (S. Benson, n. pag.)
This matters because “Census data is used to redraw voting districts, allocate seats in Congress and decide the number of Electoral College votes a state will receive for presidential elections. Some $1.5 trillion in federal funding is allocated in conjunction with census counts each year.” (Samuel Benson, n. pag.)
UPDATE 43: Again re. the struggle for “election integrity,” “political fairness, [...] racial fairness and representation” in Texas: “Redistricting Embroils Texas in Contentious Legal Fight” (a PBS NewsHour Weekend segment, first aired 3/20/2022).
SUMMARY: “Primaries for this year’s midterm elections are already underway. Across the country, these elections are happening in newly drawn districts, the result of redistricting after the latest census. As both parties work the politically fraught process to their advantage, special correspondent Karla Murthy reports from Texas on the contentious redistricting fight there.”
“In Texas, the census showed that 95 percent of population growth in the last decade came from people of color. But when the state’s congressional maps were redrawn last year, the Republican-controlled legislature created more white-majority districts. I’m standing in the center of Sugar Land, which used to fall under one Congressional District. But after redistricting last year, it’s been carved up. ¶ Under the old maps, the Asian-American population in Sugar Land, who tend to vote Democratic, was largely concentrated in Congressional district 22. The new map divied up the community among neighboring districts. What was left of the 22nd was roped in with a more rural white majority that tends to vote Republican. [...] Michael Li is senior council for the Brennan Center at New York University Law School. He says the Texas suburbs – once a Republican stronghold – have now become some of the most diverse areas in the country and a lot more Democratic.” (Karla Murthy, n. pag.)
“Republicans treated the suburbs really as hostile territory and it’s something to be neutralized. And so across the board in Texas, what you see is the creation of these suburban rural districts, right where, where rural voters are being used to shore up Republican advantages.” “Communities of color in Fort Bend County were really just right on the edge of being able to win political power.” (Michael Li, n. pag.)
“[KARLA MURTHY:] Michael Li cautions that as districts become less competitive between Democrats and Republicans, they become more competitive within the parties.
“[MICHAEL LI:] The only thing that matters is the primary. And we know, you know, in Texas and elsewhere, the primary electorates of both parties are more ideological, more extreme. So I think there’s the potential that this gerrymandering will produce greater polarization of both parties and make it harder for Congress to work.
“[KARLA MURTHY:] He says some states have managed to create fair maps using independent redistricting commissions. They include Michigan, Colorado and California.
“[MICHAEL LI:] So I think that there definitely will be a push for more independent commissions. It is sometimes hard to do because it means the Legislature giving up power. But, you know, I think there’s a lot of evidence now that commissions could be a really big part of the solution to the problems that we’re seeing, both in terms of political fairness, but also in terms of racial fairness and representation.” (n. pag.)
UPDATE 44: “In 2 States, 1 in 20 Residents Were Missed during U.S. Census” by Mike Schneider, for The Associated Press (posted to the PBS NewsHour website, 5/19/2022).
“Around 1 in 20 residents in Arkansas and Tennessee were missed during the 2020 census, and four other U.S. states had significant undercounts of their populations which could short-change them of federal funding in the current decade, according to figures from a survey the U.S. Census Bureau released Thursday [5/19/2022]. ¶ In Florida, and Texas, undercounts appear to have cost them congressional seats too. ¶ On the flip side, residents in eight states were overcounted during the once-a-decade head count that is used to allocate political power and federal funding. In Minnesota and Rhode Island, overcounts appear to have saved them from losing congressional seats. ¶ In the remaining 36 states and the District of Columbia, the overcounts and undercounts were not statistically significant.” (Mike Schneider, n. pag.)
UPDATE 45: Again relating to the psychology of mapping and the power of visual rhetoric in spreading misinformation and disinformation: “Why Many Republicans Believe the Big Lie” by David Siders (posted to POLITICO’s website, 6/9/2022).
This is POLITICO’s interview with researchers at the Center for Media Engagement at the University of Texas at Austin whose study of “why so many people believe the lie that the [2020] election was stolen” suggests “that election night visuals were particularly powerful in cueing some people’s suspicions.” (D. Siders, n. pag.)
“It’s true that Trump had some unique things going for him in advancing his fraud. His portrayal of himself as a victim of the news media helped feed the idea that ‘actors on the left would go to extreme and illegal lengths to see that he was out of office,’ according to the researchers. ¶ And the rally sizes that Trump cared so much about? They made a difference in how people viewed the outcome, too. Some people who believed Trump won had a hard time reconciling his large crowds with his losing vote total. ¶ But there was another factor that had nothing to do with Trump: how the lead on election night shifted from Trump to Joe Biden in some states as more ballots came in. Even though such shifts were expected — and explained by many traditional news outlets — the visuals on TV were difficult to overcome.” (D. Siders, n. pag.)
“I definitely think there is room for rethinking what election night coverage looks like. In this particular case, maybe not everyone is listening to it to hear that information. If they’re just looking at it visually, maybe there are ways to convey election results in better ways on air, and in print for that matter. Should we be reporting as 10 percent come in and 20 percent come in? I don’t know. I think that it’s worth having a conversation.” (Talia Stroud, professor of communication studies at the University of Texas at Austin; qtd. in David Siders, n. pag.)
Cf. “Fox News Editor Says Early Indications of Trump Victory a ‘Red Mirage’” by the PBS NewsHour News Desk (posted 6/13/2022). This short piece concerns the 13 June 2022 testimony of “Chris Stirewalt, a former Fox News political editor who was fired by the cable network after the 2020 election,” before the House committee investigating the Jan. 6 attack on the Capitol.
UPDATE 46: “Secret Memo Links Census Citizenship Question to Apportionment, Oversight Committee Says” by Mike Schneider, for The Associated Press (posted to the PBS NewsHour website, 7/20/2022).
The House Committee on Oversight and Reform “has exposed how a group of political appointees sought to use the census to advance an ideological agenda and potentially exclude non-citizens from the apportionment count [...]. It has long been speculated that the Trump administration wanted the citizenship question in order to exclude people in the country illegally from apportionment numbers. ¶ The report includes several drafts showing how the memo evolved from recognizing that doing so would likely be unconstitutional to coming up with other justifications for adding the citizenship question.” (M. Schneider, n. pag.)
“In an effort to prevent future attempts at politicizing the census, members of the oversight committee on Wednesday [7/20/2022] planned to debate a bill introduced by U.S. Rep. Carolyn Maloney, D-N.Y., that would require new questions for the head count to be vetted by Congress, and prohibit a Census Bureau director from being fired without cause. ¶ The Trump administration named an unusually high number of political appointees without prior experience in the statistical agency to top positions in the Census Bureau. The legislation would limit the number of political appointees to three, with all other positions being filled by career civil service workers. ¶ Even though many of the Trump administration’s political efforts ultimately failed, some advocates believe they did have an impact, resulting in significantly larger undercounts of most racial and ethnic minorities in the 2020 census compared to the 2010 census. ¶ ‘It is clear that legislative reforms are needed to prevent any future illegal or unconstitutional efforts to interfere with the census and chip away at our democracy,’ said Maloney, who chairs the oversight committee.” (Mike Schneider, n. pag.)
UPDATE 47: “The Forgotten Constitutional Weapon Against Voter Restrictions: A former Justice Department lawyer thinks he’s found a way to penalize states that undermine voting rights” by Michael Linhorst (posted to POLITICO Magazine website, 7/27/2022).
Reports on a fascinating modern turn in this country’s centuries-old debate over suffrage (from voting as a civic duty, to voting as a privilege, to voting as a right). Most people don’t know that twists & turns in the movement to expand/restrict the franchise resulted in the vote being taken away from women in 1699 (and again, in 1705), as it was taken away from free men of color a few decades later. So the states’ unchecked restrictions on voting rights have been with us since the late-17th century.
The late-18th century federal constitution treated the elective franchise not as a right but a privilege, nowhere guaranteeing the sort of one-taxpayer-one-vote style of democracy experimented with at this country’s founding, and taken for granted by many of us today, thanks to Amendments XIV and XV.
“The Forgotten Constitutional Weapon Against Voter Restrictions” on which Linhorst reports is what’s known as the “penalty clause” in Section 2 of the Fourteenth Amendment, whereby a state loses representation (“a percentage of its seats in the House of Representatives”) “in proportion to how many voters it disenfranchises.” (M. Linhorst, n. pag.)
Because the 14th Amendment’s “penalty clause isn’t being enforced — and never has been,” in 2021 the former Department of Justice lawyer, Jared Pettinato, sued “the Census Bureau, which is responsible for deciding how many House seats each state receives after the census is completed every decade. The suit argues that the Census Bureau’s job of apportioning seats also requires it to apply the penalty clause, and that it already has the information it needs to figure out how many people in each state have experienced harm to their voting rights.” (M. Linhorst, n. pag.)
“If the claim succeeds, it could lead to a sea change in election law and congressional representation. Pettinato’s lawsuit argues that the Census Bureau cannot stop at only applying the penalty to the newer restrictions that have garnered headlines, like laws passed by Wisconsin or Texas. Rather, nearly all limits on voting — even longstanding voter registration laws — also count as abridgments and require penalization. Under Pettinato’s argument, states like California and New York, which normally are not on anyone’s list of top vote-restrictors, could lose representatives because of their voter registration requirements. ¶ That’s because, according to the lawsuit, the penalty clause sets out a simple rule: Any citizen who resides in a state, is at least 18 years old and has not participated in a rebellion or been convicted of certain crimes must be free to vote in the state.” (Michael Linhorst, n. pag.)
UPDATE 48: “The Danger of ‘Safe’ Districts: Politicians are using new tools to make elections increasingly uncompetitive” by Amel Ahmed (The Progressive, vol. 86, no. 3, June/July 2022, pp. 24–25).
An important article, revealing new ways in which our elections are rigged: “As partisan gerrymandering becomes increasingly contested, we’ve seen another alarming trend: a sharp increase in the number of ‘safe seats’ secured in the standard redistricting process. These are seats where the expected margin of victory for one party is more than 15 percent — enough to discourage serious challenges from the opposing party and render a district uncompetitive. This phenomenon remains distinct from gerrymandering; while both processes involve manipulating the electoral map, gerrymandering implies geographic distortions of districts for partisan gain, and safe seats can be achieved without this.” (Amel Ahmed, 24)
As of the Summer 2022, “only thirty-three of the 395 districts that have been drawn so far in the current round of redistricting across the country could be considered competitive. Once the redistricting process is complete, it is expected that there will be no more than forty competitive seats. This is less than 10 percent of the 435 seats in the House and down from sixty-two competitive seats in the last round of redistricting in 2010.” (Amel Ahmed, 24)
In sum, “While they may not technically violate these standards of fairness, uncompetitive district maps can be just as dangerous for democracy as gerrymandering.” (Amel Ahmed, 25)
UPDATE 49: PBS NewsHour segment, “Supreme Court Hears Redistricting Cases with Major Implications for Future Elections” (aired 10/4/2022).
The case (Merrill v. Milligan) is about whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act of 1965.
An important topic for oral arguments on 10/4/2022 concerned the debate over “intent” which, as Marsha Coyle explained, is difficult to prove and something of a red herring at this point: “... many years ago, the Supreme Court did say you had to prove discriminatory intent in order to make a Section 2 claim, but Congress reversed that and made it very clear that you don’t have to prove intentional discrimination, which, by the way, is extremely difficult to prove. ¶ Instead, Congress said, you have to show a discriminatory result or a discriminatory effect of the voting practice that’s being challenged. And so I think that Justice Jackson was pointing out, here is what we have on the ground. We have discriminatory results. And any argument you make for intent just isn’t relevant, because intent is not required.” (Marsha Coyle, n. pag.)
At issue are historical concerns over racial gerrymandering. As of the 2020 census, African-American residents comprise about 25% of the state’s population, but only one of Alabama’s seven congressional districts is a majority-minority district, subsequent to redistricting by the Alabama state legislature in November 2021. While the lawyer for Alabama defended the state’s “race-neutral plan,” “Justices Amy Coney Barrett, Justice Kavanaugh, and even the chief justice, to a certain extent, were looking for a narrower approach than no race at all. Maybe, they said, we should be focusing on one of those redistricting principles, like compactness. Is — what does this district look like, and is it shaped right, or is it one of these crazily shaped districts like a dragon or a snake? ¶ So I think several are looking for a narrower approach. I don’t think that would satisfy the justices on the left. As Justice Kagan pointed out very markedly, she said the Voting Rights Act, which she called the greatest achievement of American democracy, had not fared well in this court. And she pointed to recent decisions where the court had pretty much gutted one section and narrowed the reach of Section 2 already.” (Marsha Coyle, n. pag.)
The lawyer for Alabama also argued that if Alabama considered race when drawing its electoral map, the state would be “violating the 14th Amendment, but Justice Jackson said, well, I have researched the Constitution. I have studied what the framers thought and what they read. And I looked at the amendments post-Reconstruction, like the 14th, 15th Amendment, and it’s very clear that they were trying to bring equality to Black Americans who had been treated unfairly, which is exactly what Section 2 is doing, she said. ¶ So the Constitution is not colorblind. And I think that was either a direct or indirect message to justices like Justice Thomas, who argue consistently in almost every race case that the Constitution is colorblind.” (Marsha Coyle, n. pag.)
For a provocative take on our commonsense preference for “compact” over distorted district maps, see above, Update No. 25, which probes the psychology of mapping, including the complicated aesthetics of electoral maps (“Is a ‘badly’ shaped district bad?”; “If we required ‘good’ shapes, would we successfully eliminate the things that bother us about gerrymandering?”), and raises “the difference between neutrality and fairness in map designs.”
UPDATE 50: The Los Angeles Times has comprehensive coverage of the ongoing L.A. City Council redistricting scandal that broke in October 2022 (ongoing because, as of 11/26/2022, Councilmember Kevin de León still refuses to resign). Much coverage has focused on the racist, ethnic, and homophobic insults casually interjected by the three L.A. City Council members (all Democrats) “as they plotted to reshape district maps.” I want here to focus on L.A.’s now “tainted” redistricting maps and the struggle over representation revealed in the three councilmembers’ conspiracy “to preserve and expand Latino political power while ensuring they and their allies would have districts that help them win reelection. They also sounded exasperated by the continued political might of the city’s Black voters, who make up less than 10% of the populace.” See “Should L.A. Scrap the Maps and Start Over?: In furor over racist audio, calls grow to throw out last year’s council redistricting” by David Zahniser and Benjamin Oreskes (Los Angeles Times, 10/16/2022, pp. A1 and A12) for context.
Calls for “scrapping the maps of the council’s 15 districts and drawing new ones” have reached (again, Democrat-controlled) state government: see “California Attorney General Will Investigate L.A. Redistricting in Wake of Leaked Audio” by Dakota Smith, Benjamin Oreskes, Hannah Wiley, and David Zahniser (posted to Los Angeles Times website, 10/12/2022); also, “California Attorney General to Investigate LA Redistricting after Councilmembers’ Racist Remarks” by Michael R. Blood, Brian Melley, & Christopher Weber of The Associated Press (posted to the PBS NewsHour website, 10/12/2022); as well as “Los Angeles Just Got New Political Maps. A Scandal Could Tear Them Up: A leaked tape of council members plotting redistricting moves could spur sweeping change” by Jeremy B. White (posted to POLITICO website, 10/14/2022).
White summarizes: “The state attorney general has launched an investigation. The city attorney wants an independent redistricting commission. Local officials are pushing to double the number of seats.” “‘It’s an extraordinarily complex landscape in which to redistrict,’ said Sara Sadhwani, a Pomona College politics professor who served on the redistricting commission that drew state and congressional maps for California. ‘There are so many interests, so many communities.’ [...] ‘We’re at a critical juncture in Los Angeles,’ she said. ‘Rather than jumping into reforms, can we pause and think about what representation looks like in a multiracial, multiethnic democracy?’” (Jeremy B. White, n. pag.)
CalMatters has also reported on the pressing need for “widespread reform of our local redistricting systems”: see “Will LA City Council Fiasco Lead to Redistricting Reform?” by Emily Hoeven (posted 10/11/2022). And in his column, “New Laws Trade One Gerrymander for Another” (posted to the CalMatters website, 10/10/2022), Dan Walters points out that “The Legislature has created commissions to redraw county supervisor districts in five counties after every census. However, unlike the state redistricting commission, these local bodies are stacked in favor of a county’s dominant political party.”
So here we see, at the local level, the corrupting power of incumbency and non-competitive districts. I used to be opposed to term limits, assuming that elected officials who were not authentic representatives would be voted out of office. I have since learned that fake representatives have perhaps the most staying power. Our founders knew this, too, and wrote term limits into the original state constitutions. E.g., Article 31 of Maryland’s Declaration of Rights (1776) reads: “That a long continuance in the first executive departments of power or trust, is dangerous to liberty, a rotation therefore in those departments is one of the best securities of permanent freedom.” (William Kilty, The Laws of Maryland ... in Two Volumes, 1799–1800, 1.c2r)
UPDATE 51: In the aftermath of the 8 November 2022 mid-term election, we have learned just how much “tainted” redistricting maps have corrupted democratic representation at the national, as well as local, level.
Florida is the poster child for the 2022 mid-terms: “GOP to DeSantis: Thanks for Helping Us Flip the House / New maps face ongoing legal challenge, but gave Republicans a four seat midterm boost” by Matt Dixon (posted to POLITICO website, 11/17/2022). The DeSantis-drawn maps (see Update 40) “were left in place for the 2022 midterms, but still face significant legal challenges from a coalition of groups led by the League of Women Voters of Florida, which successfully sued under state anti-gerrymandering provisions during the 2012 redistricting cycle. The group argues that the DeSantis map was politically-motivated to help Republicans, specifically pointing to the map erasing a Tallahassee-to-Jacksonville seat held by Lawson, which was the region’s lone Black performing seat.” (Matt Dixon, n. pag.)
See also “Gerrymandering, Hubris and Court Fights: How Redistricting Shaped the Battle for the House / Big parts of the fight to control the chamber were decided in state legislatures and commission meeting rooms over the last two years” by Jessica Piper (posted to POLITICO website, 11/6/2022). In sum: “There are fewer tightly divided districts than ever. Partisan control of redistricting in dozens of states allowing lawmakers from both parties to shore up incumbents at the expense of competitive seats.”
Piper has followed up this initial reporting with “How Redistricting Shaped the Midterms: The first election held under new congressional maps reflected both parties’ successes in shaping the House landscape for the next decade” by Jessica Piper and Ally Mutnick (posted to POLITICO website, 11/25/2022). “After a shockingly disappointing election night, Republicans will have a razor-thin majority of no more than five seats (and maybe as small as four). A margin that small means that the GOP could not have reclaimed control without their redistricting advantage.” (Jessica Piper & Ally Mutnick, n. pag.)
This advantage was partly due to judicial activism, as “Democrats had their most ruthless gerrymanders thrown out in the courts and the GOP did not, giving Republicans an edge that just might have carried them to a narrow House majority.” “Democrats’ inability to gerrymander Maryland and New York stands in stark contrast with states such as Florida, where courts declined to block Gov. Ron DeSantis’ aggressive redistricting plan that allowed Republicans to pick up four seats despite an anti-gerrymandering amendment to the state’s constitution passed by voters a decade ago that states districts should not be drawn to advantage a political party, along with lawsuits that dismantling Lawson’s North Florida seat stripped away a district where Black voters could elect a candidate of their choice.” (Jessica Piper & Ally Mutnick, n. pag.)
The courts’ outsized role in redistricting continues with the Moore v. Harper case, “which argues that North Carolina’s maps — created by a court-appointed special master after the state Supreme Court ruled the maps drawn by the Republican-led legislature were an extreme gerrymander — are unconstitutional on the basis that only state legislatures, not state courts, can decide district lines. ¶ A ruling in favor of the Republican legislators who challenged North Carolina’s special maste[r]-drawn-map could potentially open up avenues for legal challenges to maps in a range of other states where courts were involved. But the high court could also rule against them and let North Carolina’s maps stand.” (Jessica Piper & Ally Mutnick, n. pag.)
For more on Moore v. Harper (SCOTUS is set to hear oral arguments in December 2022), click/tap here.
UPDATE 52: Not only does the loss of competitive districts saddle us with more fake representation (see, for example, Update 30 and Update 34 and Update 48), the resulting “distrustful political zeitgeist” may also lead to growing political violence: “Right now, 90 percent of congressional races are so safe that they fear only a threat from their own ideological side. That’s driving extremism. We need to get rid of primaries in favor of ranked choice and other voting systems that force candidates to cater to the whole electorate.” From “How Political Violence Went Mainstream on the Right: Hate-filled rhetoric rises during election season, and the outcome is obvious” by Rachel Kleinfeld (posted to POLITICO website, 11/7/2022).
As indicated by Kleinfeld’s title, the bulk of political violence is coming from the right. “Democrats are not driving today’s political violence. But they are at least partly responsible for driving many people into the arms of the far right. Fear is a major cause of violence. As America undergoes immense change, from a fourth industrial revolution to remaking the concept of gender, many Americans are struggling to understand why they feel unmoored, anxious and behind. Snake-oil salesmen like Tucker Carlson offer the racist Great Replacement Theory as an explanation. Rather than provide a better story, the progressive left calls people names if they can’t march to a radically new tune fast enough. No wonder that even people of color moved in 2020 toward a right that offers understanding and a sense of community.” (Rachel Kleinfeld, n. pag.)
UPDATE 53: The problem of fake representation is even more acute for indigenous peoples, with their unique status under constitutional and statutory law (see, for example, the discussion of “Indians not taxed” above).
Various proposals have been floated to redress longstanding political grievances of U.S. First Nations.
To wit: “Congress Considers Fulfilling 200-Year-Old Promise to Seat Cherokee Nation Delegate” by Sean Murphy, for The Associated Press (posted to the PBS NewsHour website, 11/17/2022). Murphy reports that the U.S. House Rules Committee chairman, Rep. James McGovern, “said he has been contacted by officials with the Choctaw Nation of Oklahoma and the Delaware Nation, both of which have separate treaties with the U.S. government that call for some form of representation in Congress. McGovern also noted there also are two other federally recognized bands of Cherokee Indians that argue they should be considered successors to the 1835 treaty: the United Keetoowah Band of Cherokee Indians in Oklahoma and the Eastern Band of Cherokee Indians based in North Carolina, both of which reached out to his office.” “Members of the committee seemed to be in agreement that any delegate from the Cherokee Nation would be similar to five other delegates from the District of Columbia, Guam, the Commonwealth of the Northern Mariana Islands, American Samoa and the Virgin Islands. These delegates are assigned to committees and can submit amendments to bills, but cannot vote on the floor for final passage of bills. Puerto Rico is represented by a non-voting resident commissioner who is elected every four years.” (Sean Murphy, n. pag.)
An even bolder bid for equal representation is reviewed here: “The Case for Tribal Statehood: Democrats have advocated for years to add D.C. and Puerto Rico to the 50 states. There’s a constitutional path for statehood for tribes too” by Thomas P. Crocker and Marcia Zug (posted to The New Republic website, 11/8/2022). (A heartfelt thanks to my colleague, Gunnar Swanson, for bringing this provocative piece to my attention!)
On 11/9/2022, the Supreme Court of the United States heard “arguments in Brackeen v. Haaland. The case concerns the constitutionality of the Indian Child Welfare Act, or ICWA, a 40-year-old federal statute that provides different rules for the removal, placement, and adoption of Indian children. The Brackeen plaintiffs argue that the special rules for the adoption of Indian children are racially discriminatory. This is not a new argument, and the court has repeatedly held the act is constitutional. However, the changed composition of the court, combined with the recent Castro-Huerta decision, suggests that this time the outcome might be different. If so, the implications of the Brackeen decision will not be limited to the ICWA. Finding the act unconstitutional could mean the end of most tribal rights.” (Thomas P. Crocker & Marcia Zug, n. pag.)
For a detailed look at all that’s riding on SCOTUS’s Brackeen v. Haaland decision, see “The Case of Baby O” by Rebecca Nagle (The Nation, 315.11 [28 Nov.-5 Dec. 2022]: 14-19 and 31), retitled “The Story of Baby O — and the Case that Could Gut Native Sovereignty: Baby O’s case is at the center of a lawsuit to bring down the Indian Child Welfare Act. But far from proving ICWA should be overturned, it shows why the law is necessary” for online posting.
“Federal Indian law is the body of law that pertains to American Indian tribes and their citizens. Like the ICWA, nearly all federal Indian law is based on the distinction between race and political classification. These laws pass constitutional muster because the term ‘Indian’ is defined as a political classification based on a person’s membership or eligibility for membership in a federally recognized tribe. It is not a racial designation. Consequently, if the Brackeen plaintiffs win their discrimination claim, then the ICWA provisions, as well as most other federal Indian laws, will be considered unconstitutional racial classifications. If this happens, tribal statehood might be the best solution for tribes to maintain their political self-determination.” (Thomas P. Crocker & Marcia Zug, n. pag.)
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