The Wisconsin constitution allowed black citizens to vote, provided that the idea was “submitted to the vote of the people at a general election, and approved by a majority of all the votes cast at such election.” When in 1849 Wisconsin residents voted on that question, African American voting rights were approved 5,265 to 4,075. But there were several issues on the ballot that day and less than half of all people who went to the polls voted on the black suffrage question. Because “a majority of all the votes cast” that day did not approve black suffrage (the majority had not voted on it at all), most observers believed that African Americans were not permitted to vote in Wisconsin. In subsequent referendums in 1857 and in 1865, voters rejected black suffrage outright.
During the 1865 referendum, Ezekiel Gillespie, a leader of Milwaukee’s black community, was not allowed to register to vote. Working with attorney Byron Paine (who had argued against the Fugitive Slave Law in the Joshua Glover case), Gillespie took the election inspectors to court. His suit immediately advanced to the Wisconsin Supreme Court, where his attorney claimed that the phrase in the 1848 constitution (quoted above) meant that only a majority of votes on the suffrage issue had to prevail, not a majority of all votes cast on all issues that day. The Supreme Court ruled unanimously in favor of Gillespie.