THE POLITICAL ECONOMY OF VOTING RIGHTS ENFORCEMENT IN AMERICA’S GILDED AGE:
PARTISAN COMMITMENT, ELECTORAL COLLEGE CONSTRAINT AND THE IMPLEMENTATION
OF THE FEDERAL ELECTION LAW
Scott C. James
[email protected]
and
Brian L. Lawson
[email protected]
University of California, Los Angeles
For helpful comments we would like to thank Philip Ethington, Paul Frymer, Howard Gillman, J.
Morgan Kousser, David Mayhew, Eric Monkonnen, Karen Orren and Rick Valelly.
With the close of the Civil War, the radical wing of the Republican party began a
concerted drive to secure citizenship rights for African Americans, including the right to vote on
terms extended to white males. This commitment to black political equality was the central
impetus to the passage of the Fifteenth Amendment in 1869. Five so-called “Force
Acts”—enforcement legislation passed under the aegis of the black suffrage amendment—quickly
followed suit between the years 1870-1872. Among other things, this legislation asserted plenary
authority to amend or repeal state election laws affecting federal elections. In addition, it
established a system of national supervision over state-administered election laws, including the
application of federal sanctions to state officials charged with their implementation. Finally, it
created a host of new federal officers, including election commissioners, election supervisors, and
thousands of special deputy marshals.
The Federal Election Law also marked a clean break with received tenets of American
federalism. In Prigg v. Pennsylvania (1842) and Commonwealth of Kentucky v. Dennison (1861),
the Supreme Court denied federal authority to compel state officials to enforce national laws;
federal responsibilities, it held, must be implemented through federal instrumentalities. However,
in Ex parte Siebold and Ex parte Clarke (1880) the Supreme Court abandoned its historic
position. Asked to pass on the constitutionality of this new federal regulatory system, the Court
now found ample authority in the Constitution not only for Congress to formulate a uniform
federal election code, but to adopt a state’s election law at its own and punish the citizens and
officers of that state for violations in federal court.
The administration of the Federal Election Law in America’s Gilded Age is more
intriguing still, for in the end party necessity overran programmatic commitment. What was born
of an effort to secure political power for predominately Southern blacks developed over time into
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an expansive machinery to police federal elections in predominately Northern cities. More
precisely, this Republican guarantee of black suffrage rights was gradually crowded-out by a
preoccupation to contain Democratic registration and voter fraud in the competitive swing states
in presidential elections. This shift—from South to North; from black suffrage rights to the purity
of the Northern ballot—recast the basic premise behind the federal enforcement of national voting
rights. It helped to consummate the “retreat from Reconstruction” engineered by the
“Compromise of 1877,” in which Republicans agreed to withdraw federal troops from the South
in exchange for retention of the presidency. It also tracked the growing electoral insecurity of the
Republican party in national elections.
Like the “Compromise of 1877," the administration of the Federal Election Law reveals a
Republican preoccupation to retain control of the presidency. National oversight of federal
elections in electorally doubtful states such as New York, Indiana, New Jersey, California and
Connecticut grew to such proportions that by the early 1890s, for example, over 10,000 federal
election officials would be deployed in New York state—8,000 in New York City alone! Because
federal marshals were authorized to appoint an unlimited number of deputies to police election
processes, Republicans might hope to contain Democratic voting irregularities while turning a
blind eye toward their own. More broadly—and in keeping with the era’s fusion of politics and
administration—this system of deputy marshals provided Republican leaders with an
organizational adjunct to the traditional party machinery, mobilizing the faithful to the polls in
pivotal states while simultaneously intimidating their partisan opponents. When the Democratic
party assumed full control of the national government in 1893—the first time since the 1850s—
they promptly dismantled this federal regulatory machinery without a single dissenting vote in
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either chamber; the partisan nature of the system could not have been made more clear.1 The
realignment of 1896 and the admission to statehood of several new, Republican-leaning states in
1889 and 1890 combined to give Republicans comfortable margins in national elections for most
of the succeeding generation. With the competitive pressure to reinstate the system defused, and a
new generation of Republican leaders installed in power, this first chapter in federal election
regulation drew to a final close. Effective federal intervention to secure voting rights for African
Americans would not reemerge for nearly eighty years, with the passage of the landmark Voting
Rights Act of 1965.
Outside of a handful of Ph.D. dissertations (Horn, 1942; Swinney, 1962; Burke, 1966;
Goldman, 1976; and Wang, 1993), the enforcement of the 19th century Federal Election Law has
received only modest scholarly attention (Gillette, 1979; Bensel, 1984; and Argersinger, 1992).
Still less has systematic consideration been given to the political logic that structured its
application. Scholars have debated the extent of electoral fraud in the Gilded Age and the impact
of ballot reform upon party voting and participation rates (Burnham, 1965, 1974; Rusk, 1970,
1974; Converse, 1972, 1974; Kleppner and Baker, 1980). In addition, there is no dearth of
scholarship on Republican efforts to consolidate national power after the Civil War. Historians
have investigated in great detail the various Republican strategies to construct a Southern wing of
the party (De Santis, 1959; and Hirschon, 1962). Political scientists have explored the strategic
aspects of statehood politics in the postbellum era—admitting Republican “rotten boroughs” as a
means of maintaining partisan advantage in the Senate (Stewart and Weingast, 1992). Finally,
scholars of both stripes have examined the impact of Gilded Age partisan competition upon the
effective status of black voting rights (Kousser, 1974, 1992; Valelly, 1993, 1996; See also,
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Frymer, forthcoming).
This paper offers a different vantage point on the politics of party-building and electoral
consolidation in Gilded Age America. Relying on relatively unexplored data on prosecutions and
expenditures under the Federal Election Law, we examine the political economy of nineteenth
century voting rights enforcement. By “political economy,” we mean the rational allocation of
scarce administrative resources by partisan elites, a rationality dictated by the structure of
competitive national elections and a desire to retain control of the federal executive. We argue
that the logic of electoral college competition came to dominate the administration of the Federal
Election Law, exerting an ever increasing constraint on party actors as competition for the
presidency stiffened over the course of the “third party system.” More broadly, this paper
expresses our conception of the electoral college as a critical force in American politics and
American political development. With its highly structured system of competition for doubtful
states and pivotal groups, the electoral college injects a logic uniquely its own into national
politics. In conjunction with more contingent factors—such as the balance of national party forces
and the geographical distribution of party support—the dynamics of electoral college competition
can act as a powerful influence on political decision making, pressing otherwise reluctant
politicians to undertake actions of fundamental political or constitutional moment.
The Electoral College and American Political Development
The electoral college has been a constant feature of American national politics since the
Founding. Yet, the political consequences of its operation are considerably more variable. The
explanation for this is located in the historically contingent features of the American political
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landscape—the distribution of partisan support between states, the issues that achieve salience in
a particular campaign, or shifting regional demographic patterns—to name just a few. Ultimately,
electoral college effects on the strategic choices of political elites are conditioned by the level of
uncertainty attached to a presidential contest. Where victory margins are expected to be large and
outcomes one-sided, the independent effect of the electoral college will be least significant.
However, when the structure of electoral college competition is at its most constraining, political
actions should be more closely guided by the rules of its operational logic.
The electoral college is a highly structured political environment with precise rules,
procedures, and norms of strategic behavior adhered to by contestants for the presidential office.
The constitutional stipulations are well known. Candidates and their party organizations compete
for electoral votes allocated by state in numbers equivalent to the sum of its House and Senate
representation. The winning candidate must accumulate an absolute majority of the total electoral
votes to avoid throwing the contest into the House of Representatives. In practice, of course,
party candidates do not compete for electoral votes with equal intensity in all states. Ceteris
paribus, for example, states with large, winner-take-all blocs of electoral votes will generally
attract greater party attention than those with smaller allocations.
Most central to our analysis, party organizations carve up the electoral college map into
“sure states” and “doubtful states.” Sure states are those in which the election day outcome is
considered a foregone conclusion. Sure states can be differentiated still further into “sure for” and
“sure against” the party in question. For our purposes, the commonalities of these two
subcategories are more important than their differences. With the outcome all but assured, party
organizations have little incentive to invest scare resources in sure states. For similar reasons,
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there is less incentive to fashion major campaign themes and programmatic promises to voters
housed in these states, at least not when such appeals conflict with the preferences of voting blocs
located in doubtful states.2
Doubtful states, by definition, are those in which parties are competitive and the outcome
of the presidential election is uncertain. Among doubtful states is a subcategory of particular
interest, so-called “swing states.” Swing states, as the name implies, have the additional
characteristic of being states on which political elites expect the outcome of a presidential election
will finally turn. Depending on how fine the balance of party competition is in a given presidential
election, the number of swing states may be several, very few, or theoretically just one.
For our purposes, the critical point is that parties in control of the presidency have strong
incentives to give disproportionate political attention to states that hold the balance of power in
the electoral college. In most instances this has meant appealing to disgruntled elements within
one’s own party or within the opposition organization—in particular those with a demonstrated
willingness to cross party lines. But it may also mean mobilizing previously inactive voters into
the electoral process or enfranchising new groups who have been previously excluded from
electoral participation. Conversely, parties in power may seek to alter the competitive balance by
demobilizing centers of opposition electoral strength through institutional reforms or by the
strategic application of state coercion.
As stated above, the influence of the electoral college as a catalyst for political change is
perhaps more contingent than many of the other institutional features of American politics. Yet
few, we believe, have proven themselves more dramatic in their consequences. Elsewhere we have
argued that electoral college competition for swing states and pivotal groups help account for the
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stunning transformation in party commitments that mark the history of the Democratic party: from
an organization committed to limited government and states’ rights, to one pledged to central
state authority and activism; from an organization founded on a commitment to slavery and racial
segregation, to one at the forefront of the contemporary civil rights movement. Similarly, electoral
college competition helps to explain why it was that a largely agrarian and antimonopolistic
Democratic party nonetheless presided over the “corporate reconstruction of American
capitalism” with the passage of the Federal Trade Commission Act of 1914 (James 1992, 1995a,
1995b).
Strategic Rationality and Partisan Commitment in Models of Electoral Competition
Our framework has deep roots in the model of rational choice party competition laid out
by Downs (1957), while the explanatory importance we ascribe to swing states and pivotal groups
conforms to the median voter logic employed in spatial models of elections. In both cases, parties
strategically focus their effort on blocs of voters positioned to effect the balance of power in
national elections. Where we depart from the Downsian fold—and from rational choice models
more generally—is in the adherence to a conception of party politicians as opportunists. In the
classical Downsian formulation parties possess few programmatic commitments, rather their only
consistent motivation is a desire for the perks and emoluments of office. We reject this portrait of
party politicians as substantially incomplete. We take parties to hold durable programmatic and
ideological commitments. Mugwump caricatures notwithstanding, this characterization also holds
for American political parties in the Gilded Age and can be seen across a range of issues from
federalism and administrative power to economic regulation, trade policy, and race relations
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(Gerring, 1994, 1997). These commitments resonated deeply with party members and were
submerged or dislodged only under conditions of considerable duress.
While our analysis is consistent with strategic models of electoral rationality, we follow
Satz and Ferejohn (1994) in utilizing rational choice as a structural theory rather than as a theory
of individual psychology. Our’s is a natural selection model, and like all such models strategic
“choices” are induced by environmental imperatives, not the product of an individual-level
impulse to optimize. As has been observed, rational models of the firm and political parties
consistently perform better than comparable models of consumer and voter choice. The reason is
that firms and parties, unlike consumers and voters, operate within a severely constrained
environment, one that punishes suboptimal behavior. Thus politicians might behave as if they are
“single-minded seekers of reelection,” but such behavior is situationally induced, leaving the
imputation of psychologically derived preferences and motivations an optional feature of any
particular explanation. Of course, party leaders are human agents endowed with free will; as such,
they may elect to ignore structural dictates. The point is that they do so under pains of adverse
selection. In sum, we believe it is the presence of severe situational constraints, such as those that
characterized Gilded Age presidential elections, that give our theory of electoral college
competition its explanatory bite. Indeed our findings underscore the somewhat ironic insight that
“the theory of rational choice is most powerful in contexts where choice is limited.” (Satz and
Ferejohn, 1994: 72).
The history of the Federal Election Law conforms nicely to the structural theory sketched
above. The Republican party remained committed to black voting rights throughout the Gilded
Age (Valelly, 1995). Republican interest in building a Southern wing of the party also remained
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high, both as a means to protecting African American rights and, not incidentally, to promoting
national party fortunes.3 Evidence for each of these points can be found in the epic battle to pass
the Lodge Bill in 1890. Presented with unified control of the federal government in the election of
1888, Republicans moved to capitalize on the opportunity and strengthen the election law’s
enforcement machinery in the rural counties of the South. Under the leadership of Massachusetts
congressman Henry Cabot Lodge and House Speaker Thomas Reed, the Lodge Bill passed the
House on a strictly partisan vote. Republican support ran high in the Senate as well, though in the
end it fell to defeat because a small band of western silver Republicans placed currency inflation
above party regularity and black political equality (Crofts, 1970).4
Contrast the partisan commitment evinced in the struggle over the Lodge Bill with the
administration of the Federal Election Law under Republican president Benjamin Harrison (18891893). In both public and private utterances Harrison’s personal commitment to Southern black
voting rights ran deep (De Santis, 1959; Crofts, 1970; Orren, forthcoming). Yet in the elections of
1890 and 1892 Southern prosecutions under the Federal Election Law reached an all time low
among Republican administrations. True, the application of the election law in the South was
difficult and frequently dangerous, but this had been so for preceding Republican administrations
as well.5 Indeed, in the presidential election year of 1892 the number of Southern prosecutions
under Harrison was actually lower than that recorded in the previous presidential election
year—under the Democratic administration of Grover Cleveland.
This is not to say that Republicans were generally lax in their application of the
enforcement law. To the contrary, prosecutions in the Northern swing states reached a record
high in 1892. In making sense of these conflicting patterns our theoretical framework highlights
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the fact that Republicans had lost the presidency to the Democrats in 1884 and nearly lost it again
in 1888 (in fact, Harrison did lose the popular vote to Cleveland in that year). Confronted with a
hyper-competitive party system and the threat of expulsion from power, Republican officials
responded in an electorally rational manner, reallocating money and men away from Southern
election polls and putting them in those Northern locations consistent with their short term
electoral survival.
I.
THE FEDERAL ELECTION LAW
Substance and Machinery
The Federal Election Law was a child of Reconstruction politics. Between 1870 and 1872,
Republican congresses passed a total of five Enforcement Acts, the primary purpose of which was
to give administrative bite to the party’s commitment to secure the political rights conferred upon
the freedman by the Fourteenth and Fifteenth Amendments. In so doing, Republicans aimed to
“prevent a retreat from Reconstruction in the South” (Foner, 1988; Valelly, 1993). These
Enforcement Acts struck not only at state discrimination against the political rights of Southern
blacks, they also hit hard at private acts of violence and intimidation against African Americans
who chose to exercise their right to vote, serve on juries, and invoke the equal protection of laws.
These objectives notwithstanding, from its inception the Federal Election Law contained a
dual mandate. Its secondary purpose was the containment of registration and voting fraud in
Northern urban enclaves, areas typically under Democratic party control. Thus the Federal
Election Law generalized Reconstruction principles, striking at infringements on voting rights
broadly conceived and guaranteeing the right of all citizens to honest registration and balloting
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processes and a fair vote count.
The first Enforcement Act (May 31, 1870) sought explicitly to secure to African
Americans “a free ballot and a fair count,” extending federal protection to black citizens against
discrimination by state officials in voting and registration processes “on account of race, color, or
previous condition of servitude.” It also struck at the Ku Klux Klan, making private acts of
“force, fraud, or intimidation” “to prevent any colored citizen from voting” a federal crime.6
However the main architecture for the Federal Election Law was contained in the second and
third Enforcement Acts. Targeting cities and towns with populations greater than 20,000, these
laws accomplished several objectives. The second Act (July 14, 1870) extended federal oversight
to traditionally state-administered naturalization systems in the nation’s urban areas.
Naturalization papers were the currency by which newly enfranchised immigrants documented
their legal right to register and vote. Not surprisingly, the naturalization process became
thoroughly politicized, with the extension of citizenship rights to foreign-born residents frequently
exploited to expand the voting base of the local party in power. To counteract this, the second
Act established penalties for fraud in the naturalization process and gave the federal court system
exclusive jurisdiction over cases arising under the law. In effect, the law required a voter, if
challenged by authorities, to provide evidence of naturalization certified by a federal court before
casting a ballot.
The third Enforcement Act (February 28, 1871) established the basic machinery for federal
oversight of state registration and election processes. On petition of two citizens, federal circuit
court judges were to appoint two election supervisors for each election district or voting
precinct—one from each political party—to superintend all registration and voting processes,
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witness the tallying of the ballot, and certify the accuracy of the election records. Supervisors
were also authorized to arrest or challenge voters—that is, mark the backs of their ballots for later
investigation. Finally, this legislation authorized federal marshals to appoint an unlimited number
of special deputies to maintain order at the polls, assist in the authentication of voter lists, and
protect election supervisors from interference or molestation. Special deputies were also
empowered to make arrests for violation of the election law either with judicial warrant or on
view, and to compel the assistance of private bystanders to help preserve order. A salary of five
dollars a day for up to ten days work was also prescribed for both supervisors and special
deputies (Burke, 1968: 89, 91).
The second and third Enforcement Acts had a decidedly Northern thrust. Of the sixtyeight cities and towns with more than 20,000 inhabitants identified by the 1870 U.S. Census, only
seven were located in the ex-Confederate South: New Orleans, Nashville, Richmond, Charleston,
Memphis, Mobile, and Savannah. The purpose of the fifth Enforcement Act (June 10, 1872) was
to extend the system laid out in the second and third Acts into the rural areas of the South, where
most African Americans—indeed, most Southerners—lived. However, key aspects of the urban
system were omitted from the new legislation, the absence of which seriously hampered
enforcement efforts throughout the life of the Federal Election Law.
The Republican party faced an enormous political problem in extending the provisions of
the second and third Acts outside the nation’s cities. Put simply, any attempt to bring the
enforcement system into the Democratic-dominated rural counties of the South would necessarily
bring that same system to the largely Republican-dominated rural North. Rural Republicans were
understandably “ambivalent over the extension of the federal law to [their] home districts”
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(Burke, 1968: 101). As a result, legislation authorizing federal oversight of rural Southern
elections was considerably weakened. Two critical differences separated the rural system from the
one put in place in the urban centers. First, elections supervisors in rural communities were denied
the power to make arrests or mark ballots, turning them into relatively powerless federal
observers of state-administered registration and voting processes. They were also denied
compensation for their services. Second, the Fifth Enforcement Act explicitly denied Southern
marshals the authority to appoint special election deputies to police rural registration and voting
process and make arrests for violations of the election law.
Federal Oversight of Southern Elections in Law and Practice
As is readily apparent, compared to earlier enforcement legislation the Enforcement Act
that emerged from Congress in 1872 was relatively ineffectual. Had matters stopped there, federal
oversight of Southern elections might have proved a nullity from the beginning. However, what
Republicans could not secure legislatively they subsequently recovered, in part, through statutory
construction. Early in the life of the new election law President Grant’s Attorney General
Alphonso Taft instructed his rural Southern marshals that while the fifth Enforcement Act
prohibited the appointment of special deputy marshals, federal law granted ample authority to hire
as many general deputies as needed (with pay) to perform the police functions of special deputies
at election time. Under this construction Taft was able to bring several hundred deputies in to the
rural counties of Florida and Louisiana to police voting polls in the subsequently disputed election
of 1876.7 Indeed, as Table One makes clear, no Southern state was denied at least a minimal
allocation of deputy marshals in that election. Perhaps most striking of all, roughly half of the
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almost 4,500 deputies assigned to police Southern polls in 1876 were located in states having no
cities or towns with the population requirements contained in the enabling legislation.
[Table 1 About Here]
In practice, therefore, the authority and the resources available to federal officials to
intervene in Southern elections was much more ample than a straightforward reading of the
Federal Election Law reveals. Political will was as critical as legal authority to the aggressive
implementation of the election law in the South. This said, there is no gainsaying the fact that the
enforcement machinery for the Federal Election Law remained substantially weaker in the South
throughout the Gilded Age. In particular, rural election supervisors remained largely powerless
and unpaid “sunshine” officers, authorized to do little more than make public observed violations
and testify as witnesses to those wrongs in court. While supervisors might draw on the authority
of deputy marshals to make arrests for observed violations at Southern polling precincts,
registration processes remained difficult to reach. Strengthening the election supervisor system in
rural elections was a major impetus to the effort to pass the Lodge Bill in 1890.
This said, from 1872 to 1882 Republican administrations expended considerable effort to
police Southern elections and prosecute violations of the election law. As our analysis of the data
will show, not until the presidential election year of 1884 did Republican administrative attention
decisively shift away from the South and toward the electorally competitive states of the North.
Not coincidently, in this same year Republicans found themselves locked in a hard fought and
TABLE 1. NUMBER OF DEPUTY MARSHALS ASSIGNED TO POLICE SOUTHERN STATES IN 1876
FEDERAL ELECTIONS.
States w/
No. of
Urban Areas Deputies
Alabama
586
Georgia
207
Louisiana
840
South Carolina 338
Tennessee
30
Texas
49
Virginia
201
States w/o
No. of
Urban Areas Deputies
Arkansas
999
Florida
745
Mississippi
248
North Carolina
166
Total
Total
2,256
2,153
Source: U.S. Congress. Senate. Letter from the Attorney-General. Deputy Marshals at the Election of
November 7, 1876. 44th Congress, 2nd session, 1877. Executive Document No. 6, p. 8.
Note: The determination of states with and without urban populations in excess of 20,000 is based on
figures taken from the 1880 U.S. Census.
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ultimately losing battle with Democrats for the retention of the presidency.
II.
ENFORCING THE FEDERAL ELECTION LAW
The Fusion of Politics and Administration
Like most aspects of Gilded Age public administration, the application of the Federal
Election Law effectively fused partisan politics with genuine law enforcement functions. It
accords well with our reigning interpretation of the nineteenth century American state as a “state
of courts and parties” (Skowronek, 1982). While the formal objective of the election law was to
ensure “a free ballot and a fair count,” the system frequently operated informally to facilitate
Republican partisan goals. This was particularly true of the system of deputy marshals, and a
comparison of its appointment process with that of election supervisors clarifies its intrinsically
partisan dimensions
The appointment process for election supervisors differed from the one established for
deputy marshals by its closer adherence to administrative reform principles gaining currency in the
period, principles that placed a premium on insulation, non-discretion, and bipartisanship. Their
rejection in the case of special deputy appointments was a continual sore point, and helped to fuel
the controversy that continually swirled around their election-related police activities. Insulation
simply meant the absence of direct exposure to electoral pressure on the part of individuals
charged with the appointment of election officers. Partisan manipulation of the selection process
was seen to vary inversely with the degree of electoral insulation conferred upon appointing
officials. Non-discretion referred to the presence of statutory constraints on federal officials
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governing the logistics of local intervention. As statutory specificity governing the number and
allocation of election officers increased, discretion declined, as did the possibility that the
apportionment of federal personnel could be manipulated for political purposes. Finally,
bipartisanship referred to statutory constraints placed upon federal officials regarding the partisan
mix of election officers. In this period of intense partisanship, bipartisan administration lessened
the possibility that the activities of federal election officers would produce an electoral advantage
for the administration party.
Along each of these dimensions, the mechanisms for appointing election supervisors came
closer to meeting the contemporaneous standards of civil service reformers for separating partisan
politics from the administration of the law. Election supervisors were chosen by federal circuit
judges, a feature that ensured that the selection process would occur in an environment
comparatively removed from the immediate pressures of electoral politics. Of course, a federal
judges could be insulated from electoral pressures and still be strongly partisan. In this sense,
overt partisanship in the appointment process was tempered in two additional respects. First, the
supervisor system was triggered by local request, and, more important, federal judges were
constrained ex ante by precise statutory rules governing the number of supervisors to be
appointed and their geographical placement in the effected community. Upon citizen petition,
circuit judges were required to appoint two supervisors for every electoral division in the area
affected. Second, the supervisor system was bipartisan, with the requirement that one Democrat
and one Republican be selected to oversee jointly the registration and voting process in their
division. To be sure, in practice federal judges appointed election supervisors from a list of names
submitted to them by local party committees. Thus it was not uncommon to find supervisors
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engaged in partisan activities on election day (Burke, 1968: xxx; “Alleged Fraud,” xxx). Still, if
this appointment process for election supervisors fell substantially short of non-partisan
administrative ideals, its operational thrust was nevertheless in the direction of tempering
presidential partisan control. The fact that Democrats were as likely as Republicans to request
federal supervisors if they were in the minority locally is one clear indication of the less partisan
character of the supervisor system. (Argersinger, 1992, p. 51).
The character of the appointment process for deputy marshals was markedly different.
Deputy marshals were appointed by the local U.S. marshal, a patronage position under the direct
control of the party holding the presidency. In addition, federal marshals had a material stake in
the outcome of any presidential election because their job tenure was directly tied to party victory.
For these reasons, the pressures of short term electoral politics reverberated through the U.S.
Marshals Office. The Nation, an independent Republican periodical and a leader in the movement
for civil service reform, insisted that “the U.S. Marshal . . . is always a partisan, and often a rabid
partisan, and is rarely appointed for anything but partisanship” (Nation, May 27, 1880). Federal
marshals were party workers and often campaigned openly for Republicans candidates in federal,
state and local elections, also seeing to it that Republican ballots were in plentiful supply at the
polls on election day (Kaczoroski, 1985, p. 65; Argersinger, 1992). Secondly, unlike federal
circuit judges, U.S. marshals retained discretionary control over the number of deputies they
hired, as well as their assignment to the various polling sites on election day. Depending on the
judgement of the local marshal, particular electoral divisions might receive disproportionate
attention or absolute neglect. Of course there were clear law enforcement reasons for this
discretion, but the historical record indicates that it was frequently abused for partisan purposes.
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A final point of difference between the two appointment systems was the absence of a
statutory mandate of bipartisanship in the selection of election deputies. Not surprisingly, the
evidence seems strong that the deputy marshals appointed by federal marshals were almost always
drawn from a pool of applicants active in the president’s party. When Congress investigated the
administration of the Federal Election Law in 1879, the two Republican-appointed marshals with
respective jurisdiction over New York City and Philadelphia testified that all of their deputy
marshals (some 2,000 in 1878) had been Republicans, many of them being “active men of the
Republican party” (“Alleged Frauds,” 1880, pt. 2: pp., 14, 234-235). These same investigations
recounted numerous complaints of false arrest, detention, and intimidation against Democratic
voters by Republican deputy marshals. They also detailed the pro-Republican activities of these
deputies, such as distributing Republican ballots at the polls and vouching for Republican voters
whose names did not appear on local registration rolls. As one student of the Federal Election
Law has written, “Deputy marshals were in a sense, a civilian military, functioning at the
command of the party in power in Washington,” and like their immediate superiors, they “had an
immediate interest in the outcome of the election they were appointed to watch” (Burke: 1968, p.
95).
This differential partisan thrust between special deputies and election supervisors is
evident in spending patterns for Pennsylvania and New York, two of the largest states in Gilded
Age America. While these two states were roughly comparable across a range of economic and
demographic indicators—including as population size, level of industrialization, and
urbanization—a significant point of difference was the partisan alignment of their city politics. In
Pennsylvania, Republicans held sway, while in New York Democrats generally dominated urban
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politics, especially in New York City where the bulk of the Federal Election Law money was
concentrated. Thus, if the supervisor system generally worked to advantage the local party
minority (whether Republican or Democratic) against major party fraud, while the deputy marshal
system merely disadvantaged Democrats, Pennsylvania Democrats should have been much more
reluctant to request the intervention of federal marshals than federal election supervisors.
Similarly, Pennsylvania Republicans should have had far less need to call on the assistance of
deputy marshals than Republicans in New York. All of this leads to the prediction that while
spending for supervisors in these two states should have been roughly comparable, expenditures
for special deputies should have been substantially lower in Pennsylvania than in New York.
Figure One depicts the basic spending trends in Pennsylvania and New York for the years
1872 to 1892, controlling for urban population size. It shows quite clearly that spending levels for
election supervisors in Pennsylvania and New York were much more closely equivalent than
expenditures for special deputies. Of course there are outliers, most notably the election of 1874.
But even here the telling point is that the bulk of the outlays went to Pennsylvania and not to
New York. Indeed, in 9 of 11 federal election periods between the years of 1872 and 1892,
expenditures per thousand for election supervisors were greater in Pennsylvania. A comparison of
median expenditures tells the same story. In Pennsylvania, median expenditures for election
supervisors was $36.4 per thousand in Pennsylvania, in New York the median was $31.1.
[Figure 1 About Here]
By comparison, federal outlays for special deputies in Democratic-dominated New York
FIGURE 1. PER CAPITA FEDERAL SPENDING ON DEPUTY MARSHALS AND ELECTION
SUPERVISORS IN NEW YORK AND PENNSYLVANIA.
DOLLARS PER THOUSAND OF URBAN POPULATION
A. SPENDING ON ELECTION SUPERVISORS
80
80
70
70
60
60
50
50
40
40
30
30
NY
20
1872
1874
1876
1878
1880
1882
1884
1886
1888
1890
20
1892
PA
YEAR
DOLLARS PER THOUSAND OF URBAN POPULATION
B. SPENDING ON DEPUTY MARSHALS
50
50
40
40
30
30
20
20
10
10
NY
0
1872
1874
1876
1878
1880
1882
YEAR
1884
1886
1888
1890
0
1892
PA
20
were vastly greater than in Republican-controlled Pennsylvania. Median expenditures in New
York were $21.8 per thousand versus only $3.7 per thousand in Pennsylvania. In New York,
spending for special deputies reached its highest levels in 1872 and 1892, years in which
expenditures approached $50 per thousand. Expenditures were their lowest in 1882, when only
$12.7 per thousand was allocated. In Pennsylvania, on the other hand, expenditures for deputies
marshals, even at their high water mark, never equaled the lowest sums expended in New York.
In 1878, spending for special deputies in Pennsylvania reached $8.5 per thousand. In most
election years, however, the figure was considerably lower.
Finally, one anecdote further underscores the divergent character of these two
appointment processes, indicating as well the importance Republicans attached to retaining
political control over deputy marshals. When Democrats gained control of Congress in 1879,
they introduced legislation to transfer the appointment of special deputies (and those general
deputies hired specifically to police elections) away from federal marshals and, like election
supervisors, turn it over to the federal courts. Like the supervisorial system too, the legislation
would have required deputy marshals to be selected from among both of the major parties in equal
numbers. Of course, the Deputy-Marshal Bill was extremely popular with Democrats, but more
important it also garnered the strong support by civil service reformers. Indeed, during
congressional debates, Republicans were embarrassed to recall that identical legislation had earlier
been introduced in the House by their 1880 presidential nominee, civil service reform advocate,
James A. Garfield. Despite the pressures facing Republicans to support these reforms, when the
bill finally passed Congress in 1880, it did so against the solid opposition of both House and
Senate Republicans (Congressional Record, 1880, p. 4447). Capping the episode was the action
21
of President Rutherford B. Hayes, like Garfield a proponent of civil service reform. The
Republican Hayes effectively reasserted the status quo by vetoing the Deputy-Marshals bill.
Presidential appointees would continue to select their election deputies throughout the life of the
Federal Election Law.
Enforcement Patterns, 1872-1892
Data
Our analysis of enforcement activity employs data on criminal prosecutions and spending
for special deputy marshals under the Federal Election Law. We are drawn to these data because
they represent those aspects of the election law that were most responsive to partisan control.
Each is therefore a useful proxy for political interest and partisan effort in the application of that
law, allowing us to make inferences about the effects of electoral constraint on programmatic
purpose. For tractability of exposition and because spending on election supervisors was less
responsive to central partisan direction, we bracket systematic consideration of this data for the
remainder of this paper; though where appropriate we will draw on supervisor spending as a point
of comparison.
Equally important, our analysis privileges prosecutorial activity over deputy marshal
spending, as this data better captures the political geography of federal enforcement activity and
its underlying partisan rationality. This is because the available data on spending for deputy
marshals is limited to special deputies. As we discussed earlier, U.S. marshals hired both special
and general deputies to police federal elections. The use of general deputies allowed Republican
administrations to skirt the constraints imposed by the Federal Election Law and bring federal
22
policing authority to rural elections, particularly in the South. Because our data is confined to
spending for special deputies, it excludes from the analysis states with no cities having populations
greater than 20,000. The prosecution data has no such limitations, and thus better captures the
level of federal enforcement activity in both urban and rural states. That said, our findings indicate
that even within the limits imposed by our spending data, allocation patterns for special deputies
are generally consistent with our expectations.
Our source for election law prosecutions and spending for election supervisors is the
Annual Reports of the Attorney General. Data on spending for special deputies was obtained
from the Congressional Record, 53rd Cong., 1st sess., p. 1901 and House Executive Document
246, 48th Cong., 2nd sess. The earliest Attorney General reports do not distinguish between
actions brought under the election law and those that issued under other provisions of the
Enforcement Acts. We follow Horn’s (1949) determination that by 1875 most prosecutions under
the Enforcement Acts were made in connection with the election law. As a result, our analysis of
prosecutions starts with the election year of 1874. Analysis of spending data begins with 1872.
1. The Northernization of Federal Election Law Enforcement (I): Prosecutorial Activity
Figure 2A depicts the aggregate trends in prosecutorial activity under the Federal Election
Law. It tracks prosecution rates in the Northern and ex-Confederate states as a fraction of all
election year prosecutions, depicting a pattern in which enforcement activity migrated out of the
South and into the Northern states in the 1880s.8 This finding supports the contention that the
early application of the election law was closely tied up with the protection of newly enfranchised
Southern blacks. It also accords with the well-documented Republican interest in building a
23
Southern wing of the party both to support black political power and bolster national Republican
political fortunes. By contrast, the bulk of prosecutions occurring in later years fell
disproportionately in the North, a pattern consistent with the increasing competitiveness of
national elections and the Republican party’s growing preoccupation with urban Democratic
registration and ballot fraud.
[Figure 2 About Here]
Figure 2A also indicates that this sharp alteration in sectional prosecution patterns
coincides with the election of 1884, in which the Republican party suffered its first presidential
election loss in almost thirty years. Southern prosecutions totaled 118 in 1884, a drop of roughly
two-third the levels recorded in elections of 1880 (334) and 1882 (367). Prosecutorial activity in
the South continued to dwindle under the Democratic administration of Grover Cleveland (18851889). In the 1886 off-year elections, Southern enforcement activity effectively ceased, with only
19 prosecutions initiated. Democratic prosecutions in the South showed something of a minor
renaissance in 1888, actually surpassed the Republican figures for 1884 (159 to 118). However,
almost 60 percent of these (91) occurred in Tennessee, where the incumbent Democratic
governor was locked in battle to retain his seat.9 Under the Republican administration of Benjamin
Harrison, Southern enforcement activity reached its nadir, continuing a pattern of erosion in the
Republicans’ “Southern strategy” and cementing the Northernization of election law enforcement.
Finally, Figure 2A also indicates that the increasing tempo of Northern prosecutions began
in 1880, predating the Southern decline by four years. This upswing comes as no surprise, given
the controversy that surrounded the electoral vote count in the election of 1876 and the
FIGURE 2. AGGREGATE TRENDS IN PROSECUTORIAL ACTIVITY UNDER THE FEDERAL
ELECTION LAW.
A. NORTH VERSUS SOUTH
FRACTION OF ALL PROSECTIONS
1.0
.8
.8
.6
.6
.4
.4
.2
.2
SO UTH
0.0
1874
1876
1878
1880
1882
1884
1886
1888
1890
0.0
1892
NO RTH
ELECT ION YEAR
NUMBER OF PROSECUTIONS
B. SW ING STATES VERSUS OTHER NORTHERN STATES
300
300
200
200
100
100
O THER
NO RTH
0
1874
1876
1878
1880
1882
1884
ELECT ION YEAR
1886
1888
1890
0
1892
SW ING
24
presidential loss barely averted by the Republicans. Figure 2B shows that this change was
principally the result of an upturn in enforcement activity in the swing states. It maps the
aggregate change in swing state prosecutions from 1874 and 1892. From under 50 in 1872 and
1876, the number of swing state prosecutions jumped to 185 in 1880. Prosecution figures in 1884
paralleled those for 1880 (172), reaching their zenith in 1888 in the Cleveland Administration
(255). Under Harrison, swing state prosecutions continued apace, numbering 218 in 1892.
This temporal shift in the sectional incidence of prosecutions is indicative of a systemic
alteration in the political economy of enforcement activity under the Federal Election Law. The
watershed was the presidential election of 1884. Near defeat in 1876 and the emergence of the
Solid South drove home to Republicans their tenuous hold on the White House and precipitated a
reallocation of federal enforcement effort away from the Confederate South and toward the swing
states of the North. In 1884 Republicans lost 4 of 5 swing states to the Democrats, winning only
California. Falling only 19 electoral votes short of the necessary 201, Republicans might have
obtained these either by winning the popular vote in New York (with its 36 electoral votes), or by
capturing Indiana (15 electoral votes) plus either Connecticut (6 electoral votes) or New Jersey (9
electoral votes). Equally significant, Republicans lost the popular vote in each of these 4 states by
less than one percentage point. In the aftermath of the 1884 presidential election, federal election
law enforcement became preoccupied with policing Northern swing state elections for electoral
fraud, divesting itself from Southern elections and the protection of the tenuous voting rights of
African Americans.
One of the striking aspects of the sectional trends in prosecutions is that they are apparent
even before controlling for population (unlike our spending data). When we do take population
25
into account, however, additions features of the data are thrown into relief. Figure 3A graphs
mean prosecution levels by region, identifying two prominent spikes in enforcement activity
associated with the off-year elections of 1882 and 1890. These upswings warrant attention for
two reasons. First, they represent the only occasions in the period between 1876 and 1896 in
which Republicans went into an election with unified control of the national government, losing
that control in each instance as a result of sweeping House defeats. Moreover, equally telling are
the radically divergent responses these two events elicited from the Republican party in power. In
1882 Republicans reacted to the threatened loss of the House and unified government by
redoubling their effort in the South. This involved the failed effort of President Chester A. Arthur
to align the Republican party with independent third party movements in the South in the hope of
building a new Republican majority in the region (De Santis, 1959). In this instance, vigorous
election law enforcement was not only important to African Americans, but it promised to be a
tremendous aid to third party voters as well. By comparison Figure 3B shows that the Republican
responded to looming House defeat in 1890 by stepping up enforcement activity in the non-swing
areas of the North, states such as Missouri, Massachusetts, Pennsylvania and in the newly
admitted state of Idaho. In all, these patterns suggest the importance that Republicans placed on
retaining unified government and control of the House of Representatives (where their hold was
weakest). It also indicated the shifting importance of Southern and Northern strategies in attaining
these goals.
[Figure 3 About Here]
FIGURE 3. PER CAPITA PROSECUTION PATTERNS UNDER THE FEDERAL ELECTION LAW
(CONTROLLING FOR REGION).
PROSECUTIONS PER MILLION
A. NORTH VERSUS SOUTH
60
60
50
50
40
40
30
30
20
20
10
10
SO UTH
0
1874
1876
1878
1880
1882
1884
1886
1888
1890
0
1892
NO RTH
YEAR
PROSECUTIONS PER MILLION
B. SW ING STATES VERSUS OTHER NORTHERN STATES
60
60
50
50
40
40
30
30
20
20
10
10
O THER
NO RTH
0
1874
1876
1878
1880
1882
1884
YEAR
1886
1888
1890
0
1892
SW ING
26
The Northernization of Federal Election Law Enforcement (II): Spending for Deputy Marshals
Unlike prosecutions, aggregate spending on special deputy marshals was always heavily
skewed toward the North. The reason was the restrictions placed on the hiring and payment of
special deputies outside cities with populations of greater than 20,000. Since the preponderance
of these cities were located outside the South, federal money earmarked for overseeing elections
overwhelmingly flowed Northward. In the years between 1872 and 1892, nearly $1.3 million was
spent nationally to reimburse special deputies. Of this sum, 88 percent was directed toward
northern cities.
Among Northern states, New York was the most populous and the most urbanized. For
these reasons, and because of that state’s critical political importance in national elections, the
bulk of outlays for federal election regulation found its way into that state, and from there largely
into New York City. Over the life of the election law, roughly 40 percent of all spending on
election supervisors and well over 50 percent for special deputies were targeted at New York
state alone.
This said, there is still much to be learned about the effects of electoral constraint upon
partisan purpose by examining patterns of resource allocation after controlling for urban
population size. Our findings suggest that population effects mask significant changes over time in
the regional commitment of federal manpower to enforce the election law. Like patterns of
criminal prosecution, per capita expenditures for special deputy marshals reveal a temporal shift
from a more Southern-directed system to one in which Northern swing states were a primary
target of federal initiative. Figure 4A graphs the shift over time for special deputies in dollars per
1,000 persons of urban population (hereafter, dollars per urban thousand). It shows quite clearly
27
that in every election until 1884, substantially more dollars per thousand were spent in Southern
elections than went into their Northern counterparts. Between 1872 and 1882, a regional mean of
$13.1 per urban thousand was allocated to provide special deputies for urban Southern elections;
in the North the equivalent figure was $5.75. Beginning in 1884, however, spending patterns were
flipped, with slightly more money per urban thousand now being directed at Northern elections
($7.7 versus $6.7).
[Figure 4 About Here]
Figure 4B also disaggregates these Northern figures into their swing state and non-swing
state components. Here it becomes clear that even after controlling for population effects, swing
state spending drove the increase in Northern spending for election regulation. Swing state
spending for special deputies increased from $12.3 per urban thousand in 1884 to over $30 in
1892. By contrast, in non-swing Northern states, equivalent spending fell from $6.6 to $4.8.
Finally, Table Two presents the mean number of dollars per urban thousand, organized by
region, time period, and party spent to hire special deputies. It shows that spending for special
deputies in swing state elections was always an important component of overall spending,
regardless of the period or party examined. However, it is also clear that, unlike the period from
1872-1882, swing state spending in the years 1884-1892 overwhelmed any other regional
expenditure allocation. Even excluding New York—which, as we noted, consumed the lion’s share
of aggregate dollar expenditures— the essential relationship remains unaltered. By contrast, while
swing state spending was still an important component of overall spending in the earlier period, it
competed much more evenly with Southern spending.
[Table 2 About Here]
FIGURE 4. REGIONAL SPENDING FOR SPECIAL DEPUTY MARSHALS (CONTROLLING FOR
URBAN POPULATION SIZE).
DOLLARS PER THOUSAND OF URBAN POPULATION
A. NORTH VERSUS SOUTH
40
40
30
30
20
20
10
10
SO UTH
0
1872
1874
1876
1878
1880
1882
1884
1886
1888
0
1892
1890
NO RTH
YEAR
DOLLARS PER 1,000 OF URBAN POPULATION
B. SW ING STATES VERSUS OTHER NORTHERN STATES
40
40
30
30
20
20
10
10
SW ING
O THER
0
1872
1874
1876
1878
1880
1882
YEAR
1884
1886
1888
1890
0
1892
NO RTHERN
TABLE 2. MEAN DOLLAR EXPENDITURES PER URBAN THOUSAND FOR SPECIAL DEPUTY
MARSHALS.
A. REPUBLICAN YEARS: 1872-1882
Presidential Years
Off-Years
Swing States
Swing
w/o New York
$13.7
$ 9.8
$8.2
$7.8
Other
Northern
$4.0
$3.1
Southern
$12.4
$13.7
B. REPUBLICAN YEARS: 1884-1892
Presidential Years
Off-Years
Swing States
Swing
w/o New York
$22.9
$14.0
$20.5
$ 7.8
Other
Northern
$5.5
$2.8
Southern
$9.0
$3.5
C. DEMOCRATIC YEARS: 1884-1892
Presidential Years
Off-Years
Swing States
Swing
w/o New York
$25.7
$13.6
$24.2
$13.3
Source: Congressional Record, 53rd Congress, 1st session, p. 1901.
Other
Northern
$6.6
$1.7
Southern
$8.1
$1.8
28
Briefly, spending patterns for federal election supervisors differ from those we have
observed for special deputies and for criminal prosecutions in one dramatic way. As Figure Five
shows, 1884 once again emerges as a watershed. But unlike our earlier findings, Southern
expenditures actually appear to have been stimulated by the election of 1884, with expenditure
levels generally persisting at a much higher rate in the period after that election than before. From
an earlier high of $12.7 per urban thousand in 1878, Southern expenditures for supervisors
reached $32 in 1884, $31 in 1888, and $21 in 1892. More broadly, the period mean for Southern
supervisors in the years 1872-1882 was $6.5, while between 1884-1892 the figure was $22.8.
[Figure 5 About Here]
Equally striking, Figure Five also indicates that per capita Southern spending grew not
only in absolute terms, but relative to Northern spending as well. We believe this different
spending pattern is likely the result of the different triggering mechanism attached to the
supervisorial process, a process that was largely independent of national administrative direction.
Thus, while Republicans were otherwise turning their attention Northward in terms of
prosecutions and spending for special deputies, Southern spending for election supervisors
continued to grow.
Divided Government and the Republicans’ “Southern Strategy”
Congressional Democrats did not stand idly by as Republican administrations deployed
federal resources to aid African American participation in Southern elections. Particularly
incensed about the use of special and general deputy marshals, Democrats expended considerable
effort to bar or limit the use of federal civil and military authorities to keep peace at the polls.
DOLLARS PER THOUSAND OF URBAN POPULATION
FIGURE 5. REGIONAL SPENDING FOR ELECTION SUPERVISORS (CONTROLLING FOR
URBAN POPULATION SIZE.
60
60
50
50
40
40
30
30
20
20
10
10
SOUTH
0
1872
1874
1876
1878
1880
1882
YEAR
1884
1886
1888
1890
0
1892
NORTH
29
And because Democrats controlled the House of Representatives during most of the election
years blanketed by the Federal Election Law, they were effectively positioned to do so. Between
the years 1872-1892, eleven federal elections were held under the auspices of the election law. Of
these eleven elections, nine were administered by Republican administrations, with five of those
under conditions of divided government (1876-1880, 1884 and 1892).
Democrats sought to impede the effective implementation of the Federal Election Law in
several ways. In 1876 they passed the Holman Rule, which authorized the attachment of
substantive riders to appropriations bills “so long as they purported to retrench spending”
(Stewart, 1989). In the years 1879-1880 Democrats tacked a total of seven riders to
appropriations bills, legislation which, had they been signed by Republican president Rutherford
B. Hayes, would have repealed the portion of the election law authorizing the use of special and
general deputy marshals in connection with federal elections (Hoogenboom, 1995). Democrats
also refused to appropriate money to pay salaries incurred in previous elections until the Supreme
Court passed on the constitutionality of the election law. And once the constitutionality of the law
was upheld in 1880, Democrats continued their opposition by under-allocating money to
Republican presidents to pay federal election officers for services rendered (Burke, 1968).
One might therefore reasonably hypothesize that divided government—and not national
electoral politics—was the critical factor behind the erosion in Republican will to use the election
law in support of African American voting rights. If so, our data should show that prosecutions
were more numerous during years of unified Republican government, than during years in which
Republican presidents shared power with Democrats in Congress.
At first glance, the evidence appears to support such a contention. A look at mean
30
Republican prosecution rates in the South between 1872-1892 shows that, on average, 83 more
prosecutions occurred under conditions of unified government than divided government.
However, when we add a temporal component to our analysis, we find the effect of divided
government is not consistent over time. As Figure 6A shows, while mean prosecutions in the
years 1874-1882 were indeed greater under conditions of Republican unified government, in the
period from 1884-1892 mean rates were higher under divided government. Figure 6A indicates
that the more significant trend was the dramatic drop that occurred in prosecutions that occurred
under both governing conditions after 1884. ANOVA tests reported in Table Three also confirm
the statistical significance of this temporal trend as well as the insignificance of divided
government.
[Figure 6 And Table 3 About Here]
As previously noted, our spending data is incomplete because it lacks information on
expenditures for general deputies hired to police federal elections. But one might nonetheless
hypothesize that per capita spending for special deputies in urban Southern elections was similarly
affected by divided government. Here, however, the evidence that divided government shaped the
Southern enforcement activity of Republican administrations is even less compelling. As Figure
6B shows, in the period between 1872-1882 there was virtually no difference in mean spending
for special deputies under divided and unified government. Moreover, in the period 1884-1892
mean spending for special deputies under divided government was almost twice that allocated
under unified government, though in this instance neither effect is significant at the .05 level.
This said, we fully believe that divided government was a critical force shaping
FIGURE 6. LEVELS OF REPUBLICAN ENFORCEMENT ACTIVITY IN THE SOUTH
UNDER DIVIDED AND UNIFIED GOVERNMENT (EXCLUDING 1886 AND 1888).
FIGURE 6A. MEAN SOUTHERN PROSECUTIONS
400
350
300
250
200
150
100
50
0
DIVIDED
1874-1882
UNIFIED
1872-1882
DIVIDED
1884-1892
UNIFIED
1884-1892
FIGURE 6B. MEAN PER CAPITA SPENDING FOR SPECIAL DEPUTIES
14
12
10
8
6
4
2
0
DIVIDED
1872-1882
UNIFIED
1872-1882
DIVIDED
1884-1892
UNIFIED
1884-1892
TABLE 3. ANALYSIS OF VARIANCE TEST OF EFFECT OF DIVIDED GOVERNMENT
ON SOUTHERN ENFORCEMENT ACTIVITY BY REPUBLICANS.
A. REPUBLICAN PROSECUTIONS.
VARIABLES
DIVIDED GOVT
1884-1892
F
1.707
11.945
SIGNIFICANCE
.261
.026
B. REPUBLICAN SPENDING FOR SPECIAL DEPUTIES.
VARIABLES
DIVIDED GOVT
1884-1892
F
0.479
4.274
SIGNIFICANCE
.520
.094
31
Republican enforcement activity, but in ways more subtle than the thesis just expounded suggests.
Most obviously, divided government rendered the resources available for effective implementation
more scarce than they might otherwise have been. The uncertainty of increasingly competitive
presidential elections was compounded by a scarcity of funds to force Republicans to readjust
enforcement activity in a manner more fully consistent with their short term electoral needs. This
structurally-induced logic is at the heart of our political economy framework. Relative scarcity
and environmental uncertainty forced Republican administrations to make very tough “rational
choices” regarding how best to allocate their resources. Our bedrock realist assumption is that
parties ultimately place a higher value on retaining short term power than on acting out their short
term commitments. Anything Republicans could accomplish for Southern blacks—or any other
coalition group, for that matter—was predicated on first retaining office.
Multivariate Analysis
1. Method and Variable Construction
Finally, we pooled our data to submit our spatial and temporal findings to more rigorous
multi-variate testing. We estimated three models, one for prosecutions and one each for deputy
marshal and supervisor spending. To analyze the data we have employed negative binomial
regression, a maximum-likelihood technique useful where the dependent variable takes the form
of count data (non-negative integers). Both negative binomial and Poisson models are appropriate
to count data, but the use of Poisson is restricted to cases where the variance in the dependent
variable equals its mean, an assumption violated by our data. Because the negative binomial
allows for a wider dispersion of the dependent variable, it more effectively summarizes our data
32
than Poisson.
Our data on prosecutions is a text-book example of count data. The spending data,
however, needed to be converted to counts. This was easily done. Because we know the daily
salary of special deputies and election supervisors was fixed at $5 per day throughout the period,
we have transformed raw dollars into counts of the number of person/days for which special
deputies and election supervisors were hired. As a result, in the analysis that follows, the data on
deputy marshals and election supervisors express the count of the number of person/days per state
allocated in a given election year.
We constructed several independent variables to include in our models. SWING assesses
the effect of swing state status on prosecutions and federal manpower presence, taking the value
of “1" for New York, New Jersey, Indiana, Connecticut and California in all presidential years.
Otherwise SWING takes a value of “0.” For our prosecutions model we have included
POPULATION,
which controls for the effect of a state’s population size on election law activity.
We use POPULATION as a rough measure of the amount of electoral fraud in a state. All things
being equal, the level of electoral fraud should be positively related to its population size: the
greater the number of inhabitants, the greater the number of fraudulent electoral activities, and
therefore the greater the level of enforcement activity we expect to find. Controlling for
population size allows us to assess the additional effect of our political variables upon the level of
federal activity in a state. For our deputy marshal and supervisor data we have substituted URBAN,
which measures the number of persons in a state living in areas with a population in excess of
20,000.
In order to capture changes over time in the level of Southern enforcement activity we
33
have constructed two variables: BLACK POP/PRE-1884 and BLACK POP/1884&AFTER. BLACK
POP/PRE-1884
takes the value of a state’s percentage black population in election years prior to
1884 and a value of “0”for all subsequent years. BLACKPOP/1884&AFTER reverses this order,
taking a value of “0” for all years prior to 1884 and the value of a state’s percentage black
population for the years 1884-1892.
To round out our models we have included two dummy variables, DIVIDED GOVERNMENT
and DEMOCRATIC PRESIDENT. DIVIDED GOVERNMENT is coded “1” in all years in which partisan
control of the national government was divided between Republicans and Democrats. Conditions
of unified government are scored “0.” Here we are again interested in whether the presence of
divided government significantly restricted federal enforcement activity under the election law.
DEMOCRATIC PRESIDENT
assesses differences in the enforcement behavior of Republican and
Democratic administrations and takes a value of “1” for Democratic administrations and “0”
otherwise. Since Democrats were virulent opponents of the Federal Election Law and
Republicans were its ardent supporters, it might be expected that Democratic and Republican
presidential administrations would differ in the energy they brought to bear upon the
implementation of the law.
Results
Table Four reports our results. In all three models, population size— whether expressed
as state or urban totals—is statistically significant and positively associated with our measures of
federal enforcement activity. Not surprising, larger states could expect greater levels of federal
intervention than smaller states. In addition to this population effect however, our results also
34
confirm the positive and statistically significant relationship between swing state status and
enforcement activity across our models. The greater volatility of presidential politics in these
states could be expected to prompt greater levels of federal activity than states with more
predictable patterns of electoral politics.
Our results also confirm the effect of a state’s percentage black population on federal
enforcement activity. In both our prosecution and special deputy models, the effect of the black
population coefficients are larger for the pre-1884 period than for the period from 1884 onward.
The effect is most pronounced in the case of prosecutions. Here the magnitude of the coefficient
dropped by almost two-thirds between earlier and later periods. For special deputies, the
reduction was almost one-fifth.
The effect of a state’s percentage black population on the presence of election supervisors
is also consistent with our earlier findings. Contrary to our first two models, in the period 18721882 the black population coefficient is negative and statistically indistinguishable from zero.
However, in the period 1884-1892 (and again contrary to the patterns found in our other two
models) black population size has a positive and statistically significant effect on supervisor
spending. Again, we suspect that this divergent pattern likely stemmed from the more
decentralized triggering mechanism associated with the supervisorial process, a process less likely
to register shifts in the partisan calculus of administrative officials than more centrally controlled
aspects of election law enforcement.
As we also found earlier, the effect of divided government on enforcement activity is
always insignificant and erratic in its directionality. Perhaps the most unexpected finding is the
positive and significant effect of Democratic presidents on prosecution levels. This suggests that
35
while Democrats were vehemently opposed the existence of the Federal Election Law, they were
nonetheless willing to aggressively utilize it when they could not repeal it.
[Table 4 About Here]
Finally, we took the coefficients of our prosecution model and calculated their predicted
values. This allowed us to assess the magnitude of the relative effects of our variables upon
enforcement activity. The results are presented in Figures Seven and Eight. Figure Seven offers
two angles on the effect of swing state status on prosecutorial activity. Figure 7A plots the impact
of both population size and swing status on prosection levels, setting all other variables to zero.
Most prominently, it shows that effect of swing state status on predicted prosecution levels at any
given population size is always substantially greater than the population effect. Additionally, it
indicates that the effect of swing state status on prosecutions becomes larger as population
increases. This is certainly empirically consistent with the fact that large states with electorally
volatile presidential elections like New York received the lion’s share of federal attention as
measured by enforcement activity. Finally, Figure 7A also suggests that small but electorally
volatile states were likely to experience higher levels of enforcement activity than substantially
larger states where presidential elections were more predictable.
[Figure Seven about Here]
We also reran our prosecutions model, this time interacting SWING with a trend variable in
order to measure the differential effect of swing state status on enforcement activity over time.
Setting state population size to its mean and all other variables to zero, we then plotted the
changing effect of swing state status on prosecutorial activity over time. Figure 7B charts the
TABLE 4. NEGATIVE BINOMIAL REGRESSION ESTIMATES FOR CRIMINAL INDICTMENTS AND
PERSON/DAYS FOR SPECIAL DEPUTY MARSHALS AND ELECTION SUPERVISORS.
PROSECUTIONS
VARIABLES
SPECIAL
DEPUTIES
B
1.4464**
(.4447)
B
1.4479**
(.6644)
STATE POPULATION
0.0004**
(.0001)
3.55e-06 **
(8.44e-07)
% BLACK (PRIOR TO 1884)
4.4690**
(.7111)
3.4736**
(1.5325)
SWING STATES
% BLACK (1884 & AFTER)
DIVIDED GOVERNMENT
1.5437†
ELECTION
SUPERVISORS
B
1.2558*
(.5889)
3.99e-06**
(7.03e-07)
-0.4066
(1.1527)
(.8439)
2.8702†
(1.5947)
2.9019*
(1.3873)
-0.2700
(.2522)
0.4349
(.4238)
0.1893
(.3782)
DEMOCRATIC PRESIDENT
0.8513**
(.2818)
-0.0008
(.5169)
0.0275
(.4639)
CONSTANT
0.9905**
(.2262)
3.4925**
(.2619)
4.4044**
(.4098)
(395)
(320)
(320)
-1036.395
-1388.724
-1678.901
(N)
Log Likelihood
alpha (dispersion)
LR test against
Poisson,
chi2 (1) =
P=
3.968
6510.5
(0.000)
10.935
274485.1
(0.000)
10.262
577379.2
(0.000)
** p > .01
* p > .05
† p > .10
Note: Entries are unstandardized regression coefficents with standard errors in parentheses.
FIGURE 7. TWO MEASURES OF SWING EFFECT ON LEVELS OF PROSECUTORIAL ACTIVITY.
NUMBER OF PROSECUTIONS
A. PREDICTED EFFECT O F PO PULATIO N AND SW ING STATUS O N PRO SECUTIO NS
120
120
100
100
80
80
60
60
40
40
20
20
SW ING EFFECT
PO PULATIO N
0
LO W
MEAN
+1 SD
+2 SD
+3 SD
+4 SD
0
HIGH
EFFECT
POPULAT ION SIZE
NUMBER OF PROSECUTIONS
B. PREDICTED EFFECT O F SW ING STATE STATUS O N PRO SECUTIO NS O VER TIME
40
40
30
30
20
20
10
10
0
0
1876
1880
1884
1888
1892
PRESIDENT IAL ELECT ION YEAR
NOTE: FOR FIGURE 7A MEAN STATE POPULATION (IN 1,000S) = 1223 (SD=1095). ALL OTHER VARIABLES ARE SET TO
ZERO. FOR FIGURE 7B STATE POPULATION IS SET AT THE MEAN; ALL OTHER VARIABLES ARE SET TO ZERO.
36
results. It indicates that whereas the predicted effect of swing state status on a state with a
population of 1.2 million was an additional 7.6 prosecutions in 1876, by 1884 the predicted effect
was 16.5, reaching 35.7 by 1892.
Figure Eight shows quite clearly the precipitous decline in enforcement activity in states
with substantial African American populations after 1882. The slope of the trend line for our
second time period (1884-1892) is virtually flat, suggesting that the relative size of a state’s black
population had almost no effect on predicted federal prosecutorial activity. By comparison, the
slope of the trend line for the period 1874-1882 is sharply positive, suggesting the dramatically
greater attention heaped on Southern states in the early years of the Federal Election Act. In
general, Figure Eight is a vivid illustration of the Republican party’s “retreat from
Reconstruction,” a relative withdrawal of federal effort to enforce the election Law in the South
precipitated by the changing climate of national electoral politics in the mid-1880s.
[Figure 8 about Here]
CONCLUSION
Voting rights enforcement in the Gilded Age was shaped by party system structure and the
institution of the electoral college. Our theory suggests that the imperative to collect an absolute
majority of electoral votes in a series of state-level, winner-take-all presidential contests forces
political parties to invest resources disproportionately in those states where competition is close
and outcomes are decisive to national electoral victory. The more competitive a presidential race,
the tighter the constraints on party behavior, and the more strategically rational party decision
making can be expected to be. In addition, where the structure of the law can be turned
NUMBER OF PROSECUTIONS
FIGURE 8. PREDICTED EFFECT OF BLACK POPULATION SIZE ON PROSECUTION LEVELS IN
TWO TIME PERIODS (1874-1882 AND 1884-1892).
70
70
60
60
50
50
40
40
30
30
20
20
10
10
PERIOD 1:
1872-1882
PERIOD 2:
0
LOW
MEAN
+1 SD
+2 SD
0
HIGH
1884-1892
PERCENTAGE POPULATION BLACK
NOTE: MEAN PERCENTAGE BLACK POPULATION = 14.3% (SD=19.6). ALL OTHER VARIABLES ARE SET TO ZERO,
EXCEPT STATE POPULATION, WHICH IS ALSO SET TO ITS MEAN VALUE.
37
to partisan advantage, as with the case of special deputy marshals, political parties have strong
incentives to exploit that advantage in conformity with prevailing electoral incentives.
We are not the first to connect Gilded Age electoral competition to the collapse of African
American voting rights. Reaching conclusions different from our own, Valelly (1996) maintains
that it was the decline of national party competition in 1896—itself the product of party system
change—that precipitated the Republican abandonment of the South. Because the GOP could
now secure national majorities without Southern votes, the impulse to intervene on behalf of
African American voting rights shriveled correspondingly. In an opposite vein, Kousser (1992)
maintains that it was an excess of competition that kill African American voting rights in the
Gilded Age (while its relative absence is a critical reason for its successful institutionalization
today). By this reading, the electoral and political threat posed by the full mobilization of African
Americans was a critical impetus to the systematic, decades-long campaign of disenfranchisement
undertaken by Southern whites.
Our findings place us both somewhere between these two positions and somewhere
beyond them. On the issue of whether the presence or absence party of competition lay behind the
collapse of African American political participation, our findings clearly suggest the former. Like
Kousser, we believe that a precondition for the dismantling of African American voting rights in
the nineteenth century was the presence of intensely competitive national elections. However, we
resist the implication that it was the level of competition per se that drove black
disenfranchisement. Here we embrace Valelly’s injunction to examine the internal structure of
national party competition and the institutional context in which it was embedded.
Our emphasis on the electoral college and its structure of sure states and doubtful states
38
makes clear that national electoral competition can be organized in substantially different ways to
empower or isolate a wide variety of groups. As we have shown, a change in the structure of
competition can undermine the programmatic commitments of political parties by altering the
conditions of electoral survival and the strategic assumptions that underlay them. The
maintenance of effective black suffrage rights required the active and thorough application of
federal power to police Southern elections. However, a growing preoccupation with ensuring
Republican majorities in Northern swing states pulled party principle and electoral expediency in
increasingly divergent directions.
We do not mean to understate the enormity of the task that would have been required to
effectively secure Southern black political rights. Success in the face of rampant racism required a
substantial commitment of federal will, resources and manpower. Nor would such a costly level of
federal intervention have likely been popular with Northern white voters. Nevertheless, if our
analysis suggests anything it is that the erosion of the Republican commitment to enforce
Southern black voting rights stemmed in large measure from an competitive structure that
devalued the electoral importance of the South in favor of states where national elections were
increasingly decided. Put differently, we believe that a convergence of party principle and
electoral expediency was a necessary precondition for a successful federal assault on Southern
racism and the protection of fragile black political rights. Indeed, it was just as a convergence of
principle and expediency that helped induce Harry Truman to order the desegregation of the
military in 1948 (Sitkoff, 1971; James, 1995). On the other hand, the absence of such a
conjuncture isolated African Americans politically within the Gilded Age Republican coalition,
with disastrous results for all advocates of equal rights.
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ENDNOTES
1. In the House, Northern Democrats voted 92-0 to repeal the Federal Election Law, with Southern Democrats voting
97-0. In the Senate, the Democratic vote to repeal was 12-0 and 23-0 respectively.
2. Of course this logic extends to all manner of elections. In his recent biography of Abraham Lincoln, the historian
David Herbert Donald writes of the calculus by which Lincoln, an Illinois Republican party leader, allocated his
appearances in 1858 on behalf of party candidates for the statehouse: “[Lincoln] drew up a careful, detailed list of how
the representative and senatorial districts had voted in the previous election and . . . tried to predict how each district
would go in 1858. Some, mostly in Southern Illinois, he wrote off as ‘desparate’ [sic], meaning that there was no use
wasting Republican resources there; others, chiefly in the North, he marked as ‘we take to ourselves, without question,’
so that no campaigning in these counties was needed. He allocated his public appearances accordingly, making only four
speeches in the North and only four in the South. The rest of his time he devoted to districts ‘we must struggle for,’
mainly in the central part of the state, where the Whig (and more recently the Know Nothing) party had been strongest.”
(Donald, 1995: 212).
3. The Republican party’s “Southern strategy” went through several permutations in the period between 1870 and 1892,
from Hayes’s efforts to court “respectable” Southern white opinion, to Arthur’s support for Southern Independent
movements, to a neo-Reconstructionist strategy under Harrison (De Santis, 19xx; Crofts, 1970).
4. House Republicans supported the passage of the Lodge Bill 154-2. In the Senate, two procedural votes to lay aside
the Lodge bill were critical: the first involved a motion to take up silver legislation, the second to consider a bill for the
apportionment of House seats under the Eleventh Census. Respectively, Republicans voted 8-28 and 6-31 against the
motions, with Senators from Nevada, Colorado constituting the core of Republican opposition to further consideration of
the election bill.
5. It is a mistake to think that enforcing the election law in the North was easy or absent danger. One federal marshal in
Philadelphia observed that “fraudulent voting and violence were so endemic in that city that ‘Never an election goes by
without a riot,’ and in some wards ‘scarcely an election goes by without somebody being killed.’” Similarly, a New York
City election supervisors wrote: “‘I think it next to impossible for any man to go down and get a square vote at that
precinct unless he had a regiment of soldiers with fixed bayonets. . . . The crowd got around me and threatened my life,,
so that I was advised I had better leave, and did so, as I did not want to be killed (Argersinger, 1992: 115-116).
6. The fourth Enforcement Act (April 21, 1871) also targeted Klan terrorism in the South.
7. A copy Taft’s circular of September 4, 1876 is reprinted Report of the Attorney General, House Executive Document
no. 6, part 2, 1877 (44th Congress, 2nd session). The Congressional Record also records Democratic frustration with
the Attorney General’s end run around the Federal Election law. See, for example, the discussions of Thomas Bayard
(May 19, 1880, p. 3519), Allen Thurman (May 19, 1880, p. 3525) and John Carlisle (June 11, 1880, p. 4436).
8. “South” refers to the eleven states of the ex-Confederacy: Alabama, Arkansas, Florida, Georgia, Louisiana,
Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia. “North” is defined as all states outside the
ex-Confederate and Border regions. Between 1875-1896, roughly 10 percent of all arrests under the federal election law
were initiated in the Border states: Maryland, Kentucky and West Virginia. Because the Justice Department collected
prosecution data by fiscal year (from July 1 to June 30), we have found that the figures most closely corresponding to a
given election are those published in the two years subsequent to a given election year. This parallels the judgement of
Burke (1968). So, for example, prosecutions made in conjunction with the midterm election year of 1882 correspond to
those prosecutions reported in the Annual Report of the Attorney General for 1883 (July 1, 1882 to June 30, 1883) and
1884 (July 1, 1883 to June 30, 1884). Those made in conjunction with the 1884 presidential election year are those
reported in the Annual Report of the Attorney General for 1885 (July 1, 1884 to June 30, 1885) and 1886 (July 1, 1885
to June 30, 1886). See Albie Burke, “Federal Regulation of Congressional Elections in Northern Cities, 1870-1894"
(Ph.D. dissertation, University of Chicago, 1968).
9. The incumbent Democratic governor emerged victorious in that contest with a mere 51.3 percent of the vote.
Congressional Quarterly, Guide to U.S. Elections, 2nd Ed. (Washington, D.C.: Congressional Quarterly Inc., 1985), p.
528.