4 JOYNER_FINAL.DOCX (DO NOT DELETE) 2/20/2016 4:18 PM AFRICAN AMERICAN POLITICAL PARTICIPATION IN NORTH CAROLINA: AN ILLUSION OR POLITICAL PROGRESS? IRVING JOYNER† I. INTRODUCTION1 ince the beginning of the American democracy, Africans— Sboth free and slave—have often encountered prohibitions in voting.2 Even when officially recognized as citizens after the Civil War,3 African Americans continued to encounter limitations when they sought to exercise their right to vote and have been locked in an ongoing battle with segments of the white community to gain, maintain, utilize, and maximize political power.4 The ability to exercise political power is directly dependent upon the right to vote in a participatory democracy. African Americans’ struggle to vote has certainly been defined by the history in North Carolina.5 This ongoing political battle has been directed toward a nebulous, poorly defined, and often fleeting notion of the right to vote, which the North Carolina and federal constitutions presumably guarantee.6 Instead, this right has been regularly † Professor of Law at North Carolina Central University School of Law. The author would like to thank his research assistant, Serenity Hargrove, for her research and editing, as well as the staff of the Wake Forest Journal of Law & Policy for their expert assistance. 1. For this discussion, the term “Africans” is used to refer to those people of color—free and slave—who were in the United States before 1865 and were not legally considered to be citizens, while the term “African Americans” is used to refer to people of color after the enactment of the Thirteenth and Fourteenth Amendments to the federal Constitution. “African American” is used throughout this discussion instead of “Black” or another descriptor. 2. Steven I. Friedland, African Americans and Sustained Voting Rights Inequality, 31 DUQ. L. REV. 685, 686 (1993). 3. U.S. CONST. amend. XIV, § 2; id. at 698–99. 4. Friedland, supra note 2, at 700–03 (describing cases addressing voting restrictions and the disenfranchisement of African Americans). 5. See infra Part II & III. 6. Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 VAND. L. REV. 89, 95–103 (2014). 85 4 JOYNER_FINAL.DOCX (DO NOT DELETE) 2/20/2016 4:18 PM 86 WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 6:1 challenged and diminished by the active political opposition and trickery of elected officials in this state.7 In this constitutional democracy, whether and how to vote is a power reserved to the state.8 The Fourteenth Amendment to the federal Constitution provides that the right to vote, as determined by the state, cannot be denied on the basis of race.9 For African Americans, it has always been understood that the right to vote is the fundamental protector of every other right people possess.10 Without this right, any other purported protection is illusory since it can, and will, be taken away at the whim and caprice of the majority. This article will discuss the convoluted journey that African Americans in North Carolina have been forced to navigate through in order to vote and how political forces have regularly conspired to eliminate or limit the exercise of that right. This article will also discuss how effectively African Americans have been able to utilize this right. II. AFRICAN AMERICAN VOTING PARTICIPATION IN NORTH CAROLINA DURING SLAVERY Even before the Civil War, free Africans in North Carolina who were landowners were able to vote.11 In the eastern portion of North Carolina, free Africans constituted as much as fifteen percent of the population in several counties.12 During the period of legal slavery in North Carolina, the African population equaled or exceeded that of whites in several eastern North Carolina counties where the vast majority of Africans, slave or free, lived.13 Among free Africans in North Carolina were educators like Reverend John Chavis,14 craftsmen like Thomas Day,15 business 7. See William A. Mabry, “White Supremacy” and the North Carolina Suffrage Amendment, 30 N.C. HIST. REV. 1, 5 (1936) (discussing two senators’ attempts to exempt descendants of white voters from literacy tests). 8. Douglas, supra note 6, at 101. 9. U.S. CONST. amend. XIV, § 2. 10. W.E.B. DUBOIS, THE SOULS OF BLACK FOLK 37 (Hayes Barton Press 2005). 11. See, e.g., JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA 1790– 1860, at 105–06 (1943) (discussing the notion that the qualification for voting was not based on race after 1743). 12. JEFFREY J. CROW ET AL., A HISTORY OF AFRICAN AMERICANS IN NORTH CAROLINA 9 (2d rev. ed. 2011). 13. See FRANKLIN, supra note 11, at 18. 14. Id. at 169–70. 4 JOYNER_FINAL.DOCX (DO NOT DELETE) 2/20/2016 4:18 PM 2016] AFRICAN AMERICAN POLITICAL PARTICIPATION 87 owners, farmers, and laborers.16 In 1850, North Carolina had a white population of 553,028, a free African population of 27,463, and a slave population of 288,548.17 By 1860, those populations had increased to 631,100 for whites, 30,463 for free Africans, and 331,059 slaves.18 In these eastern counties, many of these free individuals were able to vote and politicians eagerly sought their participation.19 Dr. John Hope Franklin, the renowned historian, reports that the 1776 state constitution did not discriminate—on the basis of race—against people of color so long as they were property-owners, lived in the county, and were of the appropriate age.20 “Enfranchisement was looked upon as a right of all free men, and for a time the law enforcement officials failed to show that they saw any difference between free white men and free Negroes.”21 In many instances the votes of these free Africans constituted the balance of power in eastern North Carolina counties.22 “Before their disfranchisement, free [Africans] voted in North Carolina from the Revolution until 1835.”23 The ability and right of free Africans to vote was regularly challenged by disgruntled whites who campaigned for legislative action to disfranchise this population.24 As small as the free African population was, many whites deemed them to be a threat to their political future.25 During the 1835 legislative debate regarding the disfranchisement of free Africans, it was noted that North Carolina was the only southern state that allowed free Africans to vote.26 Central to this debate were comments made by Representative Wilson of Perquimans County; he warned his fellow legislators: “There are already 300 colored voters in Halifax, 150 in Hertford, 50 in Chowan, 75 in Pasquotank, etc., and if we 15. Id. at 142. 16. Id. at 134–35. 17. Id. at 18. 18. Id. 19. Id. at 106. 20. Id. at 12. 21. Id. at 105–06. 22. Id. at 106. 23. CROW ET AL., supra note 12, at 9. 24. FRANKLIN, supra note 11, at 111. 25. Id. at 108. 26. Id. at 111. 4 JOYNER_FINAL.DOCX (DO NOT DELETE) 2/20/2016 4:18 PM 88 WAKE FOREST JOURNAL OF LAW & POLICY [Vol. 6:1 foster and raise them up, they will soon become a majority―and we shall have Negro justices, Negro sheriffs, etc.”27 Thus, as early as 1835, when the vast majority of Africans in North Carolina were slaves, white politicians used the fear of “Black domination” as a reason to prevent African Americans from voting.28 It is interesting that, at the time, the historical record did not evidence that any free African had been elected or appointed to public office.29 The notion that only white property owners should enjoy the political franchise was not novel and had already been adopted in most southern states.30 On this point, Representative James W. Bryan of Carteret County stated, “North Carolina is the only Southern State . that has permitted them to enjoy this privilege; and so far as my experience and observation extends, her interests have not been promoted by the concession of the privilege.”31 This same point was echoed further during the legislative debates by the president of the Convention, Representative Nathaniel Macon, who argued, “free Negroes never were considered as citizens and no one had the privilege of voting but citizens.”32 This political reality was judicially determined to be the “law of the land” in the infamous United States Supreme Court decision Dred Scott v. Sandford,33 in which Chief Justice Robert Taney decreed that the founders and drafters of the original United States Constitution did not contemplate that Africans, slave or free, could be citizens of this country.34 The disfranchisement of free Africans in North Carolina did not occur without significant opposition in the legislature.35 The debate on this legislation occurred over a two-day period, and the final vote was sixty-six to sixty-one.36 During this debate, many legislators―all white―spoke forcefully in support of allowing free Africans to vote.37 Before the final passage of this legislation and in 27. Id. 28. Id. at 108. 29. Id. 30. Id. at 116. 31. Id. at 110–11. 32. FRANKLIN, supra note 11, at 111. 33. Dred Scott v. Sandford, 60 U.S. 393, 407 (1857). 34. Id. 35. FRANKLIN, supra note 11, at 112–13. 36. Id. 37. Id. at 110–12. 4 JOYNER_FINAL.DOCX (DO NOT DELETE) 2/20/2016 4:18 PM 2016] AFRICAN AMERICAN POLITICAL PARTICIPATION 89 a last ditch plea, Judge Gaston of Craven County reminded the legislators that: the majority of free Negroes in North Carolina were the offspring of white women and were “therefore entitled to all the rights of free men” .