Leroy Pitzer: Citizen, Voter, Lunatic?

1

Belt

Leroy Pitzer: Citizen, Voter, Lunatic?

Rabia Belt

On March 14th, 1905, 338 citizens of South Charleston, Ohio cast ballots to determine whether the town would ban the sale of liquor. 166 people voted no, 167 voted yes, 3 people did not mark their ballots, and 2 people marked their ballots incorrectly.[1] By one vote, South Charleston indicated that it would become a dry town and its celebrated taverns would close.

Not content to let the results stand, the tavern owners challenged the election in the Probate Court of Clark County. Ultimately, the court’s decision turned upon a single man, Leroy Pitzer, and his mental state. The Ohio Constitution barred people deemed “idiotic or insane persons” from the vote. It was up to the Probate Court to decide if Pitzer met the standard of idiocy or insanity, declare his vote invalid, and thus change the election result to a tie.

For most legal scholars, the story of In re South Charleston Election Contest and Leroy Pitzer would remain hidden in the past. The decision of an Ohio County Probate Court would likely escape the vision of a field concentrated upon Supreme Court jurisprudence and federal appellate opinions. Legal scholarship is largely a story written from above, where powerful, clearly “legal” authorities enact legal rules that constrain those who are less empowered.

Yet, as historian Nancy Cott has noted, “law is both internally conflicted and plural in origin” as it “suppl[ies] an authoritative composite face.”[2] Over the past few decades, several noted legal historians have challenged this “law from above” model by demonstrating the significance of custom, the importance of local courts, and community norms, and the multiple locations and sources of legal doctrine. Significantly, such alternative methodologies have uncovered original information about the disempowered voices only hinted at in elite legal realms. As an example, HendrikHartog, in his seminal article, “Pigs and Positivism,”[3] illustrates that despite a legal opinion to the contrary, unpenned pigs roamed antebellum New York City by an assumed custom of pigkeepers. In another instance, Ariela Gross, in Double Character: Slavery and Mastery in the Antebellum Southern Courtroom,[4] describes the strong influence of slavery and the agency of enslaved people in Southern courts despite the formal acceptance of slavery and prohibition against slave testimony.

Such works complicate depictions of legal stories and de-center the primacy of federal appellate cases. In re South Charleston continues this revised model by yielding its insights in a story that ispolyvocal, where the meaning of the formal legal documents take shape in legal contestation, and custom and local practice give meaning and provide the stakes for legal interpretation, thus shaping the outcome. While the power plays between taverns and churches of South Charleston echo the contested legal dynamics depicted by Hartog, it is significant that the linchpin of the case, Leroy Pitzer, does not have a voice. He is the conduit used by others to gain strategic political advantage.[5]

In re South Charleston Election Contest and Leroy Pitzer’s challenged ballot was far from an isolated curiosity in American history. Over the course of the nineteenth and early twentieth centuries, forty states wrote voting bans based on mental status into their constitutions or legislation. The antebellum 19th century witnessed a revolution in voting, as Americans began to believe that non-propertied white men could think independently. This shift was a change both in democratic theory and actual economic relations. As states revisited their constitutions after the American Revolution, Americans removed the restrictions on political citizenship for those considered economically dependent that they borrowed from the English. Blackstone, in his Commentaries on the Laws of England, noted:

[t]he true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.[6]

As Robert Steinfeld observed:

In the early modern period, a wide range of adult relationships of dependence were considered normal. Hardly anyone questioned the right of persons who controlled resources to use those resources to create relationships of dependence. Such relationships were grounded in the notion that those who controlled resources might extend their protection and care to those who did not. The latter, in return, would owe loyalty and obedience. They were expected to serve their protectors and do their bidding. Those who controlled no resources had little choice about the matter. They frequently had to enter one of these relationships and submit to the government of others, simply in order to survive.[7]

By the 1750s, 12 American colonies had adopted property qualifications for suffrage.[8] During the revolutionary period, states required voters to be property-holders, reasoning that property allowed men the independence necessary to make political decisions for themselves.

When states changed their constitutions in the 19th century after the American Revolution, the question of voter qualifications was at the forefront of the minds of convention attendees. Between 1790 and 1850, every state in the Union held at least one constitutional convention.[9] As the country urbanized, independence remained a priority for voting, but requirements changed from owning property to paying taxes. Further urbanization and commercialization and the disappearance of agriculture caused a rise in the number of white men who could not fulfill tax or property requirements.[10] Especially in the South, state officials wanted poor whites invested in the polity so that they would serve in militia patrols.[11] New states competed for new members. Political parties as well lobbied for new members to swell their ranks.[12]

As common men became able to vote, the parameters of who could vote became more fraught. Elites considered some people, such as women, children, and nonwhites, unable to govern themselves and thus dependence relationships were for their protection.[13] Others, such as servants, were thought to possess the capacity for self-autonomy, but contracted it away to their masters.[14] For these dependents, their protectors were supposed to look out for their interests in the polity. Therefore, the emphasis in the concern about dependence shifted from a lack of land to a legal relationship of dependence.[15] Those marked for exclusion included criminals, paupers, and now the mentally impaired.[16] While before 1820 only two states listed suffrage exclusions based on mental status,[17] by 1880, 24 out of 38 Union states disenfranchised people because they were “idiots, insane, of unsound mind, or under guardianship.”[18] Though most white men received the vote, voting remained the exception in the United States, with women, children, enslaved people, and now lunatics and idiots were excluded from the franchise due to the requirements of perceived formal independence and minimal psychological competence.

Despite this sea change of thinking about voting, very little historical work has been done on the disenfranchisement and subsequent legal challenges of people with alleged mental disabilities.[19] Alexander Keyssar, for example, who has written perhaps the most exhaustive modern treatment of American suffrage laws, barely notes disenfranchisement based on mental competency.[20] Scholars whose work focuses on the disabled have analyzed issues of access, primarily a concern for people with physical disabilities, and not the outright ban on voting that people with mental disabilities still face today.

For scholars in disability studies, the opening of this paper, of cheerful eccentric people living in a small town and a possibly insane person caught up in a legal system not of his making, may echo a far more famous juxtaposition. Michel Foucault’s Madnessand Civilization introduces a pre-modern Europe where Fools inhabit towns as community members.[21] Modernity marks the enclosure of the Fool within asylums, and the distinction between the normal and the pathological. Those considered normal are “worthy” of full-fledged citizenship; the pathological, on the other hand, are quarantined away as biomedical specimens.

Foucault’s account is seductive and has proved influential in disability studies.[22] Disability studies’ explicitly civil-rights oriented framework attacks the medically-focused model of disability that Foucault depicts. This old model privileges the viewpoint of doctors, therapists, and other allied professionals who diagnose, label, and treat those considered disabled.[23] In its place, disability scholars advocate a social model of disability that foregrounds the lived experience of a person with an impairment interacting with the world. Thus, while a person may have an impairment, it is social context that gives meaning to a disability. For example, someone’s impairment could be the inability to walk, but her disability takes shape in a community that decides whether or not to fund wheelchairs, sideway cuts and ramps. In the words of scholar SagitMor:

Disability studies investigates issues such as the social construction of disability, ableism and the power structure that supports and enhances the privileged status and conditions of non-disabled persons in relation to disabled persons, the genealogy of social categories such as normalcy, and the politics of bodily variations. The basic approach that all disability studies scholars share is that disability is not an inherent, immutable trait located in the disabled person, but a result of socio-cultural dynamics that occur in interactions between society and people with disabilities.[24]

Disability studies scholars emphasize the importance of the structural landscape in shaping the lived experiences of people with disabilities. Disability studies has certainly had its successes in altering this landscape, most notably, the Americans with Disabilities Act of 1990 (ADA), and it is gaining a foothold in the academy. Though the sociocultural model of disability studies is grounded in social context that changes over time, the field’s current strength is in cultural studies instead of history.[25]Primarily, disability history focuses upon the emergence and events of the modern disability movement, that is, from approximately the 1970s to the present, and the eugenics movement of the early 1900s.[26] Although synthetic works about the nineteenth century increasingly note ability as an important axis of analysis, the evolution and interweaving of disability with the development of the modern American state and the rise of the rights-bearing individual remains understudied.[27] This paper demonstrates the importance of disability to the development of the franchise. While the current disability studies historiography identifies the 19th century as the period where the “medical model” of disability developed, this paper suggests that the medicalization of disability may be overstated in some venues.[28] Significantly, this historiography does not catalog what preceded and shaped the period, nor does it identify the law as a coterminous axis of power. Here, a “common sense” model of disability is far more important, where the state relied upon lay or vernacular understandings of disability for the classification and restraint of people with disabilities and then translated these assumptions into legal or medical language for harder and more formal restrictions. I build on the insights of legal scholars such as Ariela Gross and Ian Haney Lopez, who examined how a “common sense” model of race as described by courts and scientists formalized vernacular understandings of racial classifications. I argue that a similar dynamic was involved in the use of common sense reasoning by the court to decide In re South Charleston Election Contest and determine whether to disfranchise Leroy Pitzer.

It was unlikely that anyone in South Charleston was surprised that the 1905 election was so close or that it became the subject of a contentious lawsuit. Founded as a stopover point between Cincinnati and Columbus in 1807, saloons peppered the town from its beginning.[29] From the start, South Charleston earned notoriety for its “many celebrated taverns” and eccentric characters.[30] The question of whether drinking should be allowed, and if so, under what conditions, was politically lively throughout Ohio, and indeed across the United States at the turn of the century. In 1894, the Clark County Prohibition Committee circulated a letter throughout the county, including South Charleston. “DEAR FRIEND, DON’T FAIL TO VOTE,” ReiRathbun, the committee chairman urged, “Let nothing keep you away from the polls.” He asked potential voters to “[s]ee any of your Prohibition friends whom you think may be a little careless and remind them to vote.” Even “the sick and weak” had to be “gotten to the polls” if the Prohibition Committee was to prevail.

Though Clark County only went dry for a year,[31] prohibition activists continued to organize. In 1902, anti-drinking advocates, drawn mainly from the Protestant churches, organized a Law and Order League that monitored the saloons for illegal activity and lobbied for new regulations to restrict their business. Their activities, as documented in the local newspapers, uncovered nightly activity where women[32] and African Americans[33] “loitered” and groups of men played slots,[34] gambled, shot pool, fought, and drank.[35]

Anti-saloon activists pushed for a Screen Ordinance, which would “provide[] that in any place devoted to the sale of intoxicating beverages by retail, there shall be maintained no screens, colored glass or other obstructions to prevent a free and unobstructed view of the interior of the saloon from the outside” during nighttime hours. Moreover, saloons would be required to have “sufficient light to distinguish from the outside the features of any person inside the saloon.” In short, a person could not visit a saloon anonymously; to be a saloon-goer meant that one had to be willing to show his or her face to the rest of the town and face the possible social consequences.

On February 28, 1905, South Charleston residents crowded into the gallery of the council chamber as their council representatives debated the measure. The council clerk read aloud the names, “representing a large percentage of the prominent business, social, and political interests of the city,” listed on petitions from nine local churches.[36] The Ordinance passed along party lines by one vote. Mayor Bowles, however, issued a veto. With such a narrow margin of victory, the anti-saloon forces were unable to muster enough support to actually enact the ordinance.

Though the morning newspaper noted in the days after the Screen Ordinance vote that the “saloons closed promptly at twelve o’clock” and liquor dealers “cheerfully obeyed” closing time, the saloon owners were aware of the growing forces arrayed against them.[37] South Charleston churches held revival meetings, added to their numbers through conversion, and joined forces with the Women’s Christian Temperance Union.[38] Finally, anti-saloon activists targeted saloon owners’ pocketbooks through legal action. At the start of the January 1905 term for the Clark County criminal court, saloons faced seventy-one indictments for liquor law violations, selling to minors, and Sunday operating hours, and twenty-six indictments for gaming devices.[39] Over the three-year course of the Law and Order League’s actions, saloon owners paid $12,000 in fines and costs to the Clark County treasury.[40]

In Ohio, a new bill threatened to put the saloon owners out of business entirely. Using a 1902 law, called the “Beal” law, 40 percent of the electorate in a municipality, through petition, could trigger a special election to decide whether the municipality would prohibit liquor. In the previous year, Ohio residents voted 793 saloons out of business.[41] Out of 1,371 townships in the state, 975 were legally dry.[42] Less than a month after the Screen Ordinance battle, South Charleston prepared for a Beal law election. The nine South Charleston churches marshaled enough names for the petition through several revival meetings.[43] Church ministers spoke about the evils of alcohol in their sermons and the churches hosted speakers from Cincinnati and Columbus to rally potential “dry” voters.[44] The owners of the six saloons and two drug stores identified sympathetic “wet” men and asked them to promise to vote in the election.[45] On the eve of the election, neither side knew which one would prevail.[46]

From the beginning of South Charleston’s election contest, things went awry. The Clark County Board of Elections created ballots designed for township elections instead of municipality elections.[47] Though the Beal law stipulated that the ballots should read: “The sale of intoxicating liquors as a beverage shall be prohibited,” and “The sale of intoxicating liquors as a beverage shall not be prohibited,” the actual ballots simply listed “For the sale” and “Against the sale.” Moreover, the order of language was reversed, so that South Charleston electors were offered the choice of allowing liquor before banning it, instead of vice versa. Further complicating matters was that in the last temperance lecture, the speaker instructed potential voters “to be sure to mark their ballots in the upper left hand corner” to register their “dry” vote; on the actual ballot, this would result in a “wet” vote.[48]