Home » Historical Background » The Forgotten Election Laws of Antebellum Texas

The Forgotten Election Laws of Antebellum Texas

The Handbook of Texas has a generally excellent article on the origins and development of Texas statutory law relating to elections (see, O. Douglas Weeks, “ELECTION LAWS,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/wde01), accessed July 03, 2013. Published by the Texas State Historical Association).

However, the article omits any discussion of the pre-Civil War election laws that prevailed in Texas. Luckily, the University of North Texas has created an incredibly powerful resource for researching early Texas law online.

What should a set of election laws accomplish? We’d expect at a minimum that the laws would (1) describe where and when elections should take place; (2) how to appoint people to conduct the election; (3) how to accept the voters at the polls; (4) how the votes should be cast and tabulated; (5) how the results should be applied; (6) how to resolve ties and disputes; and (6) describe procedures for guarding against fraud.

On May 11, 1846, the Texas Legislature passed a comprehensive law in 30 sections that regulated elections in all the above respects. See: Gammel, Hans Peter Mareus Neilsen. The Laws of Texas, 1822-1897 Volume 2, Book, 1898; pages 1515-1524; digital images, (http://texashistory.unt.edu/ark:/67531/metapth6726/ : accessed July 03, 2013), University of North Texas Libraries, The Portal to Texas History, http://texashistory.unt.edu; crediting UNT Libraries, Denton, Texas. The 1846 law is remarkable not only for the differences that it represents, but also for the ways in which it is similar to current law.

One huge difference is that voting in 1846 was not secret – votes told the election officials who they were voting for, with plenty of witnesses around, and with the exact nature of each individual’s vote written down for all to see. One can quickly see how this process enforces conformity; one isn’t likely to vote against a powerful empresario or haciendado when everyone will know.

But there are some deep similarities as well. Voters were exempt from arrest while voting; election officials were required to take an oath to execute the election in an impartial way; and elections could be contested through a written judicial review process.

The 1846 law was by no means the first legislative enactment in Texas relating to voting (a body of inherited Spanish colonial law and numerous emendations to voting procedures following Mexican independence already existed, even before Texas was a republic, and there were a number of ad hoc laws to regulate voting in specific plebiscites as well as regular local and state elections). But the 1846 law does appear to be the first comprehensive body of post-statehood Texas laws that carefully regulate elections in general, rather than just in special cases.


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