specifically discriminating against any one on account of race or color. In Southy v. Virginia, 181 U. S., Revised Statutes, of the United States, Cont. St. 1901, pages 37-42, providing that every person who prevents, hinders, controls or intimidates another from exercising the right of suffrage, to whom that right is guaranteed by the Fifteenth Amendment of the Constitution of the United States, by means of bribery, etc., shall be punished, was held invalid as it was considered to be beyond the constitutional power of Congress to act in such a case except in that of race discrimination. If the discrimination is in a State or municipal election, however, Congress may intervene, if the discrimination is shown, but not until then.
In the case of Giles v. Harris65 there was brought to the Supreme Court a bill in equity, complaining that Negroes qualified to vote for members of Congress had been refused on account of their color by virtue of the Alabama constitution, whereas white men were registered to vote at such an election. Relief was asked for on the basis of the Revised Statutes, Sec. 1979, praying that the Supreme Court should order that the petitioner be registered and declare null and void the special clause of the Alabama constitution. The court answered this petition with certain observations disclaiming jurisdiction largely for "want of merit in the averments which were made in the complaint as to the violation of Federal rights."
The court held that if the registrars acting at this election in Alabama had no authority under the new constitution, which the petitioner prayed that the court might declare null and void, they could not legally register the plaintiff. If they had authority, they were within their right to use their discretion. If this clause in the constitution should be struck down according to the prayer of the plaintiff, there would be no board to which the mandamus could be issued. The Supreme Court, therefore, held that no damage had been suffered because no refusal to register by a board constituted in defiance of the Federal Constitution could disqualify a legal voter otherwise entitled to exercising the electorate franchise, since this amounts to a decision upon an independent non-Federal ground sufficient to sustain the judgment without reference to the Federal question presented. It observed, moreover, that the bill imported that the great mass of the white population intended to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff named to be inscribed upon the lists of 1902 would be needed.
Giving his dissenting opinion in this case, Justice Brewer showed that "although the statute and these decisions thus expressly limit the range of inquiry to the question of jurisdiction, it was held that there is a constitutional question shown in the pleadings. The certificate, therefore, might be ignored and the entire case presented to the court for consideration.... Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved." Brewer would not assent to the proposition that the case presented was not a strictly legal one and entitling a party to a judicial hearing and decision. "He is a citizen of Alabama entitled to vote. He wanted to vote at an election for a Representative in Congress. Without registration he could not, and registration was wrongfully denied him. That many others were thus treated does not deprive him of his right or deprive him of relief." Justice Harlan dissented also giving practically the same argument as that of Justice Brewer. He observed: "The court in effect says that although it may know that the record fails to show a case within the original cognizance of the Circuit Court, it may close its eyes to that fact, and review the case on its merit." In view of the adjudged cases, he could not agree that the failure of parties to raise a question of jurisdiction relieved this court of its duty to raise it upon its own motion.
There was thereafter presented a petition for modification of judgment and for a rehearing June 1, 1903. The court ordered the decree of affirmance changed adding these words: "So far as such decree orders that the petition be dismissed, but without prejudice to such further proceedings as the petitioner may be advised to make."
The case of Giles v. Teasley66 was, to some extent, of the same sort. A Negro of Alabama who had previously been a voter and who had complied with the reasonable requirements of the board of registration, was refused the right to vote, for, as he alleged, no reason other than his race and color, the members of the board having been appointed and having acted under the provision of the State constitution of 1901. He sued the members of the board for damages and for such refusal in an action, and applied for a writ of mandamus to compel them to register him, alleging in both proceedings the denial of his rights under the Federal Constitution and that the provisions of the State Constitution were repugnant to the Fifteenth Amendment. The complaint had been dismissed on demurrer and the writ refused, the highest court of the State holding that if the provisions of the constitution were repugnant to the Fifteenth Amendment, they were void and that the board of registers appointed thereunder had no existence and no power to act and would not be liable for a refusal to register him, and could not be compelled by writ of mandamus to do so; that if the provisions were constitutional, the registrars had acted properly thereunder and their action was not reviewable by the courts.
"The right of the Supreme Court to review the decisions of the highest court of a State," said the national tribunal, "is even in cases involving the violations by the provisions of a State constitution of the Fifteenth Amendment, circumscribed by rules established by law, and in every case coming to the court on writ of error or appeal the question of jurisdiction must be answered whether propounded by the counsel or not. Where the State court decided the case for reasons independent of the Federal right claimed its action is not reviewable on writ of error by the United States Supreme Court." It was held that the writs of error to this court should be dismissed, as such decisions do not involve the adjudication against the plaintiff in error of a right claimed under the Federal Constitution but deny the relief demanded on grounds wholly independent thereof." In Wiley v. Sinkler, and Swafford v. Templeton, the registrars were legally averred to be qualified.67
In the Maryland case of Pope v. Williams68 the court further explained its position. While the State cannot restrict suffrage on account of color, the privilege is not given by the Federal Constitution, nor does it spring from citizenship of the United States. While the right to vote for members of Congress is derived exclusively from the law of the State in which they are chosen but has its foundation in the laws and Constitution of the United States, the elector must be one entitled to vote under its statute. A law, therefore, requiring a declaration of intention to become citizens before registering as voters of all persons coming from without Maryland is not a violation of the Constitution.
In the case of Guinn v. United States69 the court held that the literacy test was legal and not subject to revision but in this clause of the constitution that part of a section providing for literacy was closely connected with the so-called grandfather clause that the United States Supreme Court declared both unconstitutional as it did in the case also of Myers v. Anderson,70 coming from Annapolis, Maryland, and in the case of The United States v. Mosely, from Oklahoma.71 The clause referred to follows:
"No person shall be registered as an elector of this State or be allowed to vote in any election herein, unless he be able to read and write any section of the Constitution of the State of Oklahoma; but no person who was on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the provisions of this section shall be enforced by the precinct officer when electors apply for ballots to vote."
The court held that this was a standard of voting which on its face was in substance but a revitalization of conditions which when they prevailed in the past had been destroyed by the self-operative force of the Thirteenth