Grandfather Clause

A portion of a statute that provides that the law is not applicable in certain circumstances due to preexisting facts.

Grandfather clauses, which were originally intended to prevent black people from voting, were named for provisions adopted by the constitutions of some states. Such amendments sought to interfere with an individual's right to vote by setting forth difficult requirements. For example, common requirements were ownership of a large amount of land or the ability to read and write portions of the state and federal constitutions. The name grandfather clause arose from the exceptions that were made for veterans of the Civil War. If the veterans were qualified to vote prior to 1866, their descendants were also qualified. Thus, in effect, if a person's grandfather could vote, he could vote without further restrictions.

These statutes accomplished precisely what was intended, since nearly all slaves and their descendants were disqualified from voting because they could not satisfy the statutory requirements.

In the 1915 case of Guinn v. United States, 238 U.S. 347, 35 S. Ct. 926, 59 L. Ed. 1340, the SUPREME COURT OF THE UNITED STATES examined a GRANDFATHER CLAUSE that was added to the Oklahoma constitution shortly following its admission to the Union. The 1910 constitutional amendment required that prospective voters pass a literacy test in order to qualify to vote. However, anyone who was entitled to vote on January 1, 1866, or any time earlier under any form of government, or who at that time lived in a foreign country, was exempt from satisfying the literacy test requirement. The lineal descendants of such exempted persons also were exempt from such a requirement. In reality, the amendment recreated and perpetuated the very conditions that the FIFTEENTH AMENDMENT was intended to destroy, even though race was never mentioned as a voter qualification.

The Court held that the clause was in violation of the Fifteenth Amendment, which states that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Oklahoma argued that states had the power to set forth voter qualifications. Therefore, the statute in controversy did not violate the Fifteenth Amendment since race was not mentioned as a voter qualification. The Supreme Court was in agreement that states have the right to determine who is qualified to vote; however, they are permitted to do so only within constitutional limits. The limit that proscribes consideration of the race of voters extends to sophisticated as well as simpleminded discrimination, and equality under the law cannot be based upon whether a person's grandfather was a free man.

Oklahoma undertook to change its law following this decision. The revised statute said that everyone who was able to vote as a result of the grandfather clause automatically continued to be eligible and those who had been denied VOTING RIGHTS were given twelve days in 1916 to register to vote. If they were out of the county where they resided or if they were prevented from registering by sickness or unavoidable circumstances, they were given an additional fifty days in 1916 to register. After that time black persons who tried to register to vote were turned away, since the time to register outside the grandfather clause had ended in 1916.

In the 1939 case of Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281, the Supreme Court rejected Oklahoma's new scheme, calling it another example of an attempt by a state to thwart equality in the right to vote regardless of race or color. The Court ruled that the proposed remedy, in the form of such a limited registration period, was inadequate. A group of citizens who lacked the habits and traditions of political independence deserved a greater opportunity to register to vote.

The term grandfather clause in its current application refers to a legislative provision that permits an exemption based upon a preexisting condition. For example, through the application of grandfather clauses, certain prerogatives are extended to those regularly engaged in a particular profession, occupation, or business that is regulated by statute or ordinance. Such a clause might allow an individual, who has been in continuous practice in a particular profession for a specific period, to circumvent certain licensing requirements.