Ballots at 40 Paces?

Some of you may have seen recent news reports about a bound volume of Virginia state government papers, dating from 1863, that fell out of a ceiling during the renovation of Mr. Jefferson's Capitol building.

As Hugh Lessig described the find in the Newport News Daily Press:

The Virginia General Assembly sits in special session. The governor addresses the transportation crisis. The nation is at war.

Also in the headlines: The latest report from the Joint Legislative Committee on Salt and a patient count at the insane asylum, where people suffer from "political excitement," "suppressed perspiration," "excessive use of tobacco" and "close reading of the Bible."

So went the Old Dominion in 1863, according to a bound collection of government papers that literally fell into the 21st century as workers renovated the State Capitol.

As a window into history, it shows how far things have progressed and how some problems never go out of style.

One would think that such a discovery would be viewed as extraordinarily valuable by archivists. Nope. The Library of Virginia turned down an offer to take custody of the papers, saying it already had a copy in its collection.

Meanwhile, last week in Charlottesville, we had a similarly exciting discovery -- though not of the same magnitude.

While cleaning out a closet, members of the staff of the Office of Voter Registration found two old paperbound books, copies of the "Virginia Election Laws" from, respectively, 1932 and 1938.

Each volume is rather slim, perhaps about one-quarter to one-third as thick as the current book that contains the Virginia election code. Of course, why should election law and regulation be different from any other component of government? All government functions have grown exponentially in the past 70 years.

To an elections junkie like me, reading these old laws is fascinating. The code book includes definitions of all the legislative districts, which were far more contiguous and compact than districts are today. The type of gerrymandering we see today did not take place then, though I am sure there were some manipulations of districts.

Today's political-party- and racially-based gerrymandering actually became possible only after the Supreme Court ruled that the Constitution requires "one man, one vote" and after the Voting Rights Act.

In the days of multimember districts, some of the apportionment may have seemed capricious, or at least ad hoc, but it was nonetheless intriguing. House and Senate districts were not described in intricate detail by metes and bounds but rather by grouping cities and counties together on the basis of geography.

For instance, according to Section 78 of the Code (which is numbered differently today), "Albemarle, Charlottesville, and Greene shall have two delegates," while "Richmond city shall have six delegates" and "Fairfax shall have one delegate." (I imagine that apportionment was largely made on the basis of population, though not entirely, so those three examples alone show how much has changed since 1938.)

And although Electoral Boards still serve with only token compensation, the pay the board members received in the 1930s is a real pittance compared to today: Section 89 states that

Each member of the electoral board shall receive from the county or city, respectively, for each day of actual service the sum of five dollars, and the same mileage as is now paid jurors; provided, that no member of such board shall receive more than twenty-five dollars in any one year exlusive of mileage

with certain exceptions. (Perhaps some economically-minded reader will tell us what $25 in 1938 dollars would be worth today.)

Reading the old code, however, made it clear that the current law does not consist simply of additions to the previous laws. Some things have been removed, though it is not always clear why.

One paragraph immediately jumps out at the reader. This is from the Virginia state constitution of 1902, still in force in 1938:

Section 22. Persons exempt from payment of poll tax as a condition of right to vote.---No person, nor the wife or widow of such person, who, during the late war between the States, served in the army or navy of the United States, or of the Confederate States, shall at any time be required to pay a poll tax as a prerequisite to the right to register or vote. The collection of the State poll tax assessed against anyone shall not be enforced by legal process until the same has become three years past due.

I suppose the current constitution leaves this out because there aren't a lot of Confederate war widows clamoring to be exempt from paying their poll taxes. Or maybe it's because the U.S. Constitution outlaws poll taxes. Or maybe both.

The next section of the constitutional provisions affecting voting contains two separate items worth noting.

Section 23. Persons excluded from registering and voting.---The following persons shall be excluded from registering and voting: Idiots, insane persons and paupers;

Let's stop there.

I know there are a lot of political activists out there, on both the right and the left, who are wondering why anyone would have left this provision out of current election law. After all, don't we usually wake up on the day after an election and ask aloud, "Who let those idiots vote?"

Now let's continue, skipping a few lines. We're still talking about "persons excluded from registering and voting":

... persons who while citizens of this State, after the adoption of this Constitution, have fought a duel with a deadly weapon, or sent or accepted a challenge to fight such a duel, either within or without this State, or knowingly conveyed such a challenge, or aided or assisted in any way in the fighting of such duel.

Political party officials, take note. You now have another reason to challenge a voter at the polls. Just don't slap him in the face with a glove.