By Gretchen Schuldt
(Updated 6/7/21 to correct Booth's biography.)
Ezekiel Gillespie, born a slave, grew up to win the right to vote for Wisconsin's Black men. (All women would have to wait a while.)
Gillespie may be one of the better-known unsung heroes in Wisconsin's legal history – he at least has a pocket park named after him – but his story seems especially timely now, as the Legislature works diligently to increase restrictions on who can vote and when.
Gillespie was born a slave in Georgia. His mother also was enslaved and his father reportedly was their owner. Reports about how Gillespie got his freedom are contradictory, but he may have bought his freedom from his own father.
State voters were asked in an 1849 constitutional referendum whether the voting franchise should be extended to African American men. There were numerous political offices up for a vote at the same time. The franchise referendum passed, 5,265 to 4,075, but a lot of voters who went to the polls didn't vote on the referendum question at all – they were more interested in other items on the ballot. Because the referendum did not receive a majority of all the votes cast that day, officials said, it failed.
That is how the matter stayed until 1865, when Gillespie tried to register to vote in Milwaukee.
Unsurprisingly, election officials turned him away, as did election officials when he showed up at the polls to vote.
Gillespie sued the Milwaukee board of election inspectors. In anticipation of the suit, Gillespie already was working with Sherman Booth, an abolitionist and newspaper editor. Gillespie was represented by Byron Paine, a premier civil rights attorney of the time and a former (and future) State Supreme Court justice, who may have had his fees covered by Booth.
Gillespie lost in Milwaukee County Circuit Court and appealed to the Supreme Court.
D.G. Hooker, representing the election inspectors, argued that the constitution required that the suffrage measure, to be adopted, had to be approved by a majority of voters in the election, not just a majority voting on the referendum.
"It is not reasonable to presume...that the convention intended to permit a change in the provisions of the constitution on so important a subject as the right of suffrage, and one which the convention knew would at that time have been particularly odious to a large majority of the people, without requiring that it should be approved, either by an actual majority of all the members of the legislature, or by an actual majority of the voters themselves," he argued.
But the court disagreed.
"Under the provisions of our constitution, as well as of other constitutions, persons are elected to a particular office who have a majority of the votes cast – not for the candidates for some other office, but for the candidates for that office...." Justice Jason Downer wrote for the three-member court. "To declare a measure or law adopted or defeated – not by the number of votes cast directly for or against it, but by the number cast for and against some other measure, or for the candidates for some office or offices not connected with the measure itself, would not only be out of the ordinary course of legislation, but, so far as we know, a thing unknown in the history of constitutional law."
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