The Guarantee Clause

There is a serious claim that the United States failed to carry out its duty under the Guarantee Clause in the context of African American suffrage. The Supreme Court held that African Americans were protected by the Clause after the passage of the Reconstruction Amendments. In Texas v. White (1891) the Court explained: “[t]he new freemen necessarily became part of the people, and the people still constituted the State . . . . And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guaranty.”

Importantly, after the Civil War, African Americans were a majority of the population in Louisiana, Mississippi, and South Carolina, and 40 percent or more in Alabama, Florida, Georgia, and Virginia. If majority rule and political freedom had prevailed in those seven states, the political power and influence African Americans enjoyed during Reconstruction would likely have continued for decades, or permanently. 

However, as is well-known, African Americans were systematically disenfranchised, most vigorously in places where they were majorities, or could combine with other voters to become majorities. Mississippi was a leader in disenfranchising African Americans. In 1896, the Mississippi Supreme Court explained how this happened in Ratliff v. Beale:

Our unhappy state had passed in rapid succession from civil war through a period of military occupancy, followed by another, in which the control of public affairs had passed to a recently enfranchised race, unfitted by educational experience for the responsibility thrust upon it. This was succeeded by a semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power. The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise.

The Mississippi Constitutional Convention of 1890 solved this problem:

Within the field of permissible action under the limitations imposed by the federal constitution, the convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race.

See United States v. Mississippi (1965). Disenfranchisement of African Americans, the perpetrators themselves recognized, resulted in the establishment of minority rule.

Accordingly, the United States failed to guarantee a republican form of government in many former Confederate states in the period after Reconstruction and before the passage of the Voting Rights Act of 1965. The legislative history of a number of acts of Congress including the Fifteenth Amendment itself, recognized the conflict between the principle of majority rule enshrined in the Guarantee Clause and the reality of systematic disenfranchisement of African Americans.

It is unlikely that anyone would bother to disenfranchise a political opponent unless the outcome of the election might be at stake. In a highly polarized nation, there remain incentives for governmental actors, political parties, or others, to find ways to obstruct registration or casting of ballots to turn minorities of eligible voters into winners of elections. Congress does not have a general power to police and purify state elections, or to install governmental structures it considers desirable. However, the United States has a Guarantee Clause responsibility to step in when the principle of majority rule is threatened.   

Under the Guarantee Clause, the states have a limited ability to define the franchise. States may, for example, set reasonable residency requirements for state and local elections and deny convicted felons the right to vote. Thus, in Oregon v. Mitchell (1970), the Supreme Court held that, while Congress could set the voting age for federal elections, it did not have that power when it came to state and local elections. This case suggests that the Guarantee Clause does not provide a general federal power to police elections. The ability of states to establish the franchise has been narrowed considerably by the Fifteenth (no denial of right to vote based on race), Nineteenth (no denial of right to vote based on sex), Twenty-Fourth (no poll tax), and Twenty-Sixth (overturning Oregon v. Mitchell, and establishing a nationwide minimum voting age of eighteen) Amendments, and by Congress’ right to enforce those Amendments pursuant to legislation.

The text of the Guarantee Clause directs the United States to “guarantee to every State in this Union a Republican Form of Government.” This language acts not only as a prohibition on the type of government a state may have, but also guarantees to them sufficient autonomy to govern according to popular will. The Guarantee Clause thus acts as a limited check on the federal government’s ability to interfere with state autonomy. The federal government may not alter the form or functioning of a state government qua government. Other constitutional amendments, however, may circumscribe a state’s ability to establish its governance structures. Election districts can be redrawn, for instance, under the Fourteenth and Fifteenth Amendments.