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Absentee Soldier Voting in Civil War Law and Politics David A Wayne State University Wayne State University Dissertations 1-1-2014 Absentee Soldier Voting In Civil War Law And Politics David A. Collins Wayne State University, Follow this and additional works at: http://digitalcommons.wayne.edu/oa_dissertations Part of the History Commons, Law Commons, and the Political Science Commons Recommended Citation Collins, David A., "Absentee Soldier Voting In Civil War Law And Politics" (2014). Wayne State University Dissertations. Paper 1043. This Open Access Dissertation is brought to you for free and open access by DigitalCommons@WayneState. It has been accepted for inclusion in Wayne State University Dissertations by an authorized administrator of DigitalCommons@WayneState. ABSENTEE SOLDIER VOTING IN CIVIL WAR LAW AND POLITICS by DAVID A. COLLINS Submitted to the Graduate School of Wayne State University, Detroit, Michigan in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY 2014 MAJOR: HISTORY Approved by: _________________________________ Advisor Date _________________________________ _________________________________ _________________________________ © COPYRIGHT BY DAVID A. COLLINS 2014 All Rights Reserved ACKNOWLEDGMENTS As my dissertation committee and fellow graduate students are well aware, this project has been in the works for a long time. I appreciate everyone’s patience. Special thanks go to Marc Kruman, my advisor and friend, for encouraging me several years ago to take up this subject. His guidance on the architecture of the dissertation and his editorial eye have been invaluable. Sandra VanBurkleo, another friend and the most patient editor I have ever known, did the immense service of insisting that I liberate the subject from the confines of formal law. Virginia Thomas and Jan Bissett of the Arthur Neef Law Library at Wayne State University gave me generous research support and encouragement, for which I am deeply indebted. Their colleague, Kathryn Polgar, did so as well and then, along with Tim Parker, Kathryn rendered magnificent service flyspecking footnotes for compliance with style requirements. ABA colleagues Mark Harrison and Charlie Geyh steered me to useful sources about nineteenth century judicial ethics. I am grateful to them all. My wife, Cynthia, deserves the most gratitude of all. She has been a rock of cheerful support. I can never repay the debt I owe her for bearing with me so uncomplainingly through this interminable effort, but I will try. DAC August 22, 2014 ii TABLE OF CONTENTS Acknowledgments . ii Introduction . 1 Chapter 1. “Words Become Things:” The Experience of Ohio . 35 Chapter 2. Dislocated Suffrage: The Radicalism of Soldier-Voting Laws Nationally 90 Chapter 3. 1863 Pennsylvania: Proving Ground for 1864 Political Messaging . 136 Chapter 4. The Indispensable Voice of Soldiers in the Messaging Wars of 1864 . 176 Chapter 5. The Democrats’ Predicament . 243 Conclusion . 278 Appendix . 291 Bibliography . 401 Abstract . 431 Autobiographical Statement . 433 iii 1 INTRODUCTION Ohio attorney Columbus Delano envisioned a bleak future if the state supreme court upheld a new voting law. The innovative 1863 statute allowed absent Civil War soldiers to vote in Ohio elections, just as if they were home. Delano’s client, Democrat John McBride, would have won his election bid for Wayne County probate judge based exclusively on the votes cast within the county, but he lost the race when canvassers added the votes of absent soldiers to the home vote. Before the law’s enactment, there was no such thing as absentee voting in Ohio, and Delano argued that the legislature lacked authority to invent it. The law giving absent soldiers an opportunity to vote was not only unconstitutional, Delano insisted, but also “subversive to the very foundation of the state government.” It would transform the elective franchise intolerably, making it “a mere transitory or migratory thing, to be exercised not at any stated or prescribed election precincts, but anywhere, and in any part of the world.”1 To the modern American ear, this protest may sound puzzling. Twenty-first century Americans take absentee voting for granted as a convenience that facilitates participatory democracy by allowing citizens to cast ballots “anywhere, and in any part of the world.” But such voting was completely unfamiliar to Ohioans in 1863. The statute created something altogether different from what they had come to understand about elections and voting. There was no precedent before 1863 for Ohioans to cast ballots 1. Lehman v. McBride, 15 Ohio St. 573, 582 (1863), italics in the original. Delano did not share his client’s Democratic political views. A Whig turned Republican, Delano served in the state assembly when he argued McBride’s case. Earlier he had served a term in congress and had narrowly lost to Benjamin Wade in the 1862 contest to represent Ohio in the U.S. Senate. Rossiter Johnson, ed., The Biographical Dictionary of America (Boston: American Biographical Society, 1906), 3:227. 2 anywhere other than in their own Ohio communities, in the company of neighbors and under the watchful eyes of community leaders. Now a subset of the state’s qualified voters – soldiers – could vote in distant locations, not only away from their home communities but altogether outside the state. Delano lost his constitutional argument – the court upheld the new law – but even the court agreed that this was something new, something the framers of Ohio’s constitution had never contemplated.2 During the Civil War, twenty northern states did what Ohio did by creating novel opportunities for absent Civil War soldiers to vote. Though mindful of what was going on in other states, states acted individually in doing so, and the stories of how it happened vary. For the newest state of Nevada, which became a territory during the war and achieved statehood barely a week before Election Day in 1864, absentee voting represented no jolting departure from earlier electoral practices, since Nevada was too young to have developed its own traditions of voting. Most states, however, entered the war with firmly established election habits, some tracing their legal origins back nearly two centuries. For them absentee voting departed dramatically from familiar election norms. Before enactment of these precursors to modern absentee voting laws, state laws had tightly tethered balloting to the voter’s community, requiring strict supervision by local elites and in-person participation by voters. One scholar aptly describes antebellum elections as “masculine, communal” events.3 Under the new laws, elections remained decidedly masculine, but hardly communal in the prewar sense of that word. Now 2. Lehman, 15 Ohio St. at 612. 3. Adam I.P. Smith, No Party Now: Politics in the Civil War North (New York: Oxford University Press, 2006), 15. 3 eligible voters – as long as they were soldiers – could cast their ballots in distant places where they served as warriors, far from the watchful eyes of their neighbors and community leaders. In the absentee voting process that the new laws created, the absent party was as much the soldier’s civilian community as it was the soldier himself. With the subordination of the home community’s role came the subordination of previously paramount legal values. Preserving “the purity” of elections, so evident as a value in the antifraud provisions of nearly all earlier election laws, suddenly gave way to the higher value of keeping absent soldiers within the community of voters. Dating from their earliest existence as political polities, most states had become progressively sterner in their laws’ attempts to discourage fraud. The anti-fraud provisions all depended for enforcement on the tight oversight of the voting process by election supervisors, men chosen from the social and political elites of each community. And while many states’ soldier-voting laws mimicked the oversight mechanisms of pre-war laws – including election judges and clerks selected from among the soldiers gathered in the field to vote, opportunities for challenging the qualification of soldiers to vote, sworn oaths for election officials and voters, the keeping of poll books, etc. – in operational reality such mechanisms were relatively toothless when implemented away from the states in military settings. Predictions of that toothlessness by opponents of enactment did not deter proponents, to many of whom it simply did not matter. For them, it was the legislature’s responsibility, and within the legislature’s constitutional authority, to subordinate the value of election “purity” to the more important wartime imperative of allowing absent soldiers to vote, no matter the far greater risk of fraud. 4 State by state, legislators, lawyers, and judges would disagree about whether the novelty of these new voting arrangements created constitutional problems, as Columbus Delano argued unsuccessfully that they did in the Ohio case. Constitutional or not, however, all could agree that the new laws created an entirely new form of political participation, upending settled views about what an election was. The phenomenon was, in other words, legally radical. Chapters 1 and 2 undertake an examination of the contours of that radicalism. Chapter 1 is a case study of one state’s experience with the invention of absentee voting. It constructs a history of election law in Ohio, comparing the prewar sense of what an election was, as revealed over six decades in statutes and constitutions, with the very different kind of election contemplated
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