FIFTEENTH AMENDMENT

RIGHT OF CITIZENS TO VOTE

CONTENTS

Page

Sections 1 and 2. ...................................................................................................................... 2227

Abolition of Suffrage Qualifications On Basis of Race .................................................... 2227

Adoption and Judicial Enforcement .......................................................................... 2227

Adoption ................................................................................................................ 2227

The Judicial View of the Amendment ................................................................ 2228

Grandfather Clauses ............................................................................................ 2229

The White Primary .............................................................................................. 2230

Literacy Tests ....................................................................................................... 2230

Racial Gerrymandering ....................................................................................... 2231

Congressional Enforcement ........................................................................................ 2232

State Action .......................................................................................................... 2232

Federal Remedial Legislation ............................................................................. 2234

2225

RIGHT OF CITIZENS TO VOTE

FIFTEENTH AMENDMENT

SECTIONS 1 AND 2. 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.

The Congress shall have power to enforce this article by appropriate legislation.

ABOLITION OF SUFFRAGE QUALIFICATIONS ON

BASIS OF RACE

Adoption and Judicial Enforcement

Adoption.—The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment,

aside from the provisions of section 2,1

left the issue of Negro suffrage solely with the states, and Northern states were generally as

loath as Southern to grant the ballot to African-Americans, both the

newly freed and those who had never been slaves.2 But, in the second session of the 39th Congress, the right to vote was extended to

African-Americans by statute in the District of Columbia and the

territories, and the seceded states as a condition of readmission had

to guarantee Negro suffrage.3 Following the election of President

Grant, the “lame duck” third session of the Fortieth Congress sent

the proposed Fifteenth Amendment to the states for ratification. The

struggle was intense because Congress was divided into roughly three

factions: those who opposed any federal constitutional guarantee of

Negro suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who

1 See discussion under “Apportionment of Representation,” supra. Of course, the

Equal Protection Clause has been extensively used by the Court to protect the right

to vote. See “Fundamental Interests: The Political Process,” supra.

2 W. GILLETTE, THE RIGHT TO VOTE: POLITICS AND THE PASSAGE OF THE FIFTEENTH AMENDMENT 25–28 (1965).

3 Id. at 29–31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat.

379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153,

14 Stat. 428 (1867) (First Reconstruction Act).

2227
were willing to settle for an amendment merely proscribing racial

qualifications in determining who could vote under any other standards the states wished to have.4 The latter group ultimately prevailed.

The Judicial View of the Amendment.—In its initial appraisals of this Amendment, the Supreme Court appeared disposed to

emphasize only its purely negative aspects. “The Fifteenth Amendment,” it announced, did “not confer the right . . . [to vote] upon

any one,” but merely “invested the citizens of the United States with

a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color,

or previous condition of servitude.” 5 But in subsequent cases, the

Court, conceding “that this article” has originally been construed

as giving “no affirmative right to the colored man to vote” and as

having been “designed primarily to prevent discrimination against

him,” professed to be able “to see that under some circumstances it

may operate as the immediate source of a right to vote. In all cases

where the former slave-holding States had not removed from their

Constitutions the words ‘white man’ as a qualification for voting,

this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left

him in the enjoyment of the same right as white persons. And such

would be the effect of any future constitutional provision of a State

which would give the right of voting exclusively to white people. . . .” 6

Although “the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote,” the Amendment

“is cast in fundamental terms, terms transcending the particular

controversy,” and “grants protection to all persons, not just members of a particular race.” 7 Moreover, the Court has construed “race”

broadly to comprehend classifications based on ancestry as well as

those based on race.8 “Ancestry can be a proxy for race,” the Court

has explained, finding such a proxy in Hawaii’s limitation of the

right to vote in a statewide election for an office responsible for ad4 Gillette, supra, at 46–78. The congressional debate is conveniently collected in

1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 372 (1971).

5 United States v. Reese, 92 U.S. 214, 217–18 (1876); United States v. Cruikshank,

92 U.S. 542, 566 (1876).

6 Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States, 238

U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage

to whites was automatically nullified by ratification of the Fifteenth Amendment.

Neal v. Delaware, 103 U.S. 370 (1881).

7 Rice v. Cayetano, 528 U.S. 495 (2000).

8 Guinn v. United States, 238 U.S. 347 (1915) (invalidating Oklahoma exception

to literacy requirement for any “lineal descendants” of persons entitled to vote in

1866).

2228 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
ministering a trust for the benefit of persons who can trace their

ancestry to Hawaiian inhabitants of 1778.9

Grandfather Clauses.—Until quite recently, the history of the

Fifteenth Amendment has been largely a record of belated judicial

condemnation of various state efforts to disenfranchise AfricanAmericans either overtly through statutory enactment or covertly

through inequitable administration of electoral laws and toleration

of discriminatory membership practices of political parties. Of several devices that have been held unconstitutional, one of the first

was the “grandfather clause.” Beginning in 1895, several states enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could

be registered notwithstanding their inability to meet any literacy

requirement. Unable because of the date to avail themselves of the

exemption, African-Americans were disabled to vote on grounds of

illiteracy or through discriminatory administration of literacy tests,

while illiterate whites were permitted to register without taking any

tests. With the achievement of the intended result, most states permitted their laws to lapse, but Oklahoma’s grandfather clause had

been enacted as a permanent amendment to the state constitution.

A unanimous Court condemned the device as recreating and perpetuating “the very conditions which the [Fifteenth] Amendment was

intended to destroy.” 10

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 that provided that all persons, except those who voted in 1914, who were qualified to vote in 1916

but who failed to register between April 30 and May 11, 1916, with

some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for

the Court, nullified “sophisticated as well as simple-minded modes

of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 11

The impermissible effect of the statute, the Court said, was automatically to continue as permanent voters, without their being obliged

to register again, all white persons who were on registration lists

in 1914 by virtue of the previously invalidated grandfather clause,

whereas African-Americans, prevented from registering by that clause,

had been afforded only a 20-day registration opportunity to avoid

permanent disenfranchisement.

9 Rice v. Cayetano, 528 U.S. 495, 514 (2000).

10 Guinn v. United States, 238 U.S. 347 (1915).

11 Lane v. Wilson, 307 U.S. 268, 275 (1939).

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2229
The White Primary.—The Court displayed indecision, however, when it was called upon to deal with the exclusion of AfricanAmericans from participation in primary elections. Prior to its becoming convinced that primary contests were in fact elections to which

federal constitutional guarantees applied,12 the Court had relied upon

the Equal Protection Clause to strike down the Texas White Primary Law 13 as well as a later Texas statute that contributed to a

similar exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees of such parties.14 When exclusion of African-Americans was thereafter perpetuated by political parties not acting in obedience to any

statutory command, this discrimination was for a time viewed as

not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments.15 This holding

was reversed nine years later when the Court declared that, where

the selection of candidates for public office is entrusted by statute

to political parties, a political party in making its selection at a primary election is a state agency, and consequently may not under

the Fifteenth Amendment exclude African-Americans from such elections.16 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by

a lower federal court with no doctrinal difficulty,17 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion

of African-Americans by the Jaybird Association, a countywide organization that, independently of state laws and the use of state

election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held

unconstitutional but there was no opinion of the Court.18

Literacy Tests.—At an early date the Court held that literacy

tests that are drafted so as to apply alike to all applicants for the

voting franchise would be deemed to be fair on their face and in

the absence of proof of discriminatory enforcement could not be said

12 United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S.

649 (1944).

13 Nixon v. Herndon, 273 U.S. 536 (1927).

14 Nixon v. Condon, 286 U.S. 73 (1932).

15 Grovey v. Townsend, 295 U.S. 45 (1935).

16 Smith v. Allwright, 321 U.S. 649 (1944).

17 Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948);

see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).

18 Terry v. Adams, 345 U.S. 461 (1953). For analysis of the opinions, see “State

Action,” supra.

2230 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
to deny equal protection .Voter qualifications 19 But an Alabama constitutional amendment, the legislative history of which disclosed that

both its object and its intended administration were to disenfranchise African-Americans, was held to violate the Fifteenth Amendment.20

Racial Gerrymandering.—The Court’s series of decisions interpreting the Equal Protection Clause as requiring the apportionment and districting of state legislatures solely on the basis of population 21 had its beginning in Gomillion v. Lightfoot,

22 in which the

Court found a violation of the Fifteenth Amendment in the redrawing of a municipal boundary line into a 28-sided figure that excluded from the city all but four or five of 400 African-Americans

but no whites, and that thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the

validity of multi-member districting and alleged dilution of minority voting power, were decided under the Equal Protection Clause,23

and, in City of Mobile v. Bolden,

24 in the course of a considerably

divided decision with respect to the requirement of discriminatory

motivation in Fifteenth Amendment cases,25 a plurality of the Court

sought to restrict the Fifteenth Amendment to cases in which there

is official denial or abridgment of the right to register and vote, and

to exclude indirect dilution claims.26 Congressional amendment of

section 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however.27

19 Williams v. Mississippi, 170 U.S. 213 (1898); Cf. Lassiter v. Northampton County

Bd. of Elections, 360 U.S. 45 (1959).

20 Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d, 336 U.S. 933 (1949).

21 See “Apportionment and Districting,” supra.

22 364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

23 E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S.

755 (1973).

24 446 U.S. 55 (1980).

25 On the issue of motivation versus impact under the equal protection clause,

see discussion of “Testing Facially Neutral Classifications Which Impact on Minorities” in the Fourteenth Amendment, supra. On the plurality’s view, see 446 U.S. at

61–65. Justice White appears clearly to agree that purposeful discrimination is a

necessary component of equal protection clause violation, and may have agreed as

well that the same requirement applies under the Fifteenth Amendment. Id. at 94–

103. Only Justice Marshall unambiguously adhered to the view that discriminatory

effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146–49

& nn.3–5 (1976) (dissenting).

26 446 U.S. at 65. At least three Justices disagreed with this view and would

apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125–35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).

27 See Voting Rights Act Amendments of 1982, Pub. L. 97–205, 96 Stat. 131,

amending 42 U.S.C. § 1973. The Supreme Court interpreted the 1982 amendments

to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2231
Congressional Enforcement

Although the Fifteenth Amendment is “self-executing,” 28 the Court

early emphasized that the right granted to be free from racial discrimination “should be kept free and pure by congressional enactment whenever that is necessary.” 29 Following ratification of the Fifteenth Amendment in 1870, Congress passed the Enforcement Act

of 1870,30 which had started out as a bill to prohibit state officers

from restricting suffrage on racial grounds and providing criminal

penalties and ended up as a comprehensive measure aimed as well

at private action designed to interfere with the rights guaranteed

under the Fourteenth and Fifteenth Amendments. Insofar as this

legislation reached private action, it was largely nullified by the Supreme Court and the provisions aimed at official action proved ineffectual and much of it was later repealed.31 More recent legislation

has been much more far-reaching in this respect and has been sustained.

State Action.—Like section 1 of the Fourteenth, section 1 of

the Fifteenth Amendment prohibits official denial of the rights therein

guaranteed, giving rise to the “state action” doctrine.32 Nevertheless, the Supreme Court in two early cases seemed to be of the opinion that Congress could protect the rights against private deprivation, on the theory that Congress impliedly had power to protect

the enjoyment of every right conferred by the Constitution against

deprivation from any source.33 In James v. Bowman,34 however, the

had effectively overruled the City of Mobile intent standard in returning to a “totality of the circumstances” results test.

28 Guinn v. United States, 238 U.S. 347, 362–63 (1915).

29 Ex parte Yarbrough, 110 U.S. 651, 665 (1884).

30 16 Stat. 140. Debate on the Act is collected in 1 B. SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 454 (1971). See also The Enforcement Act of

1871, ch. 99, 16 Stat. 433.

31 Ch. 25, 28 Stat 36 (1894); ch. 321, 35 Stat. 1153 (1909). See R. CARR, FEDERAL

PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 35–55 (1947), for a brief history of the

enactment and repeal of the statutes. The surviving statutes of this period are 18

U.S.C. §§ 241–42, and 42 U.S.C. §§ 1971(a), 1983, and 1985(3).

32 See “State Action,” under the Fourteenth Amendment, supra. “The State . . .

must mean not private citizens but those clothed with the authority and influence

which official position affords. The application of the prohibition of the Fifteenth Amendment to ‘any State’ is translated by legal jargon to read ‘State action.’ This phrase

gives rise to a false direction in that it implies some impressive machinery or deliberative conduct normally associated with what orators call a sovereign state. The

vital requirement is State responsibility—that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into

any scheme by which colored citizens are denied voting rights merely because they

are colored.” Terry v. Adams, 345 U.S. 461, 473 (1953) (Justice Frankfurter concurring).

33 The idea was fully spelled out in Justice Bradley’s opinion on circuit in United

States v. Cruikshank, 25 Fed. Cas. 707, 712, 713 (No. 14,897) (C.C.D. La. 1874).

The Supreme Court’s decision in United States v. Cruikshank, 92 U.S. 542, 555–56

2232 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
Court held that legislation based on the Fifteenth Amendment that

attempted to prohibit private as well as official interference with

the right to vote on racial grounds was unconstitutional. That interpretation was not questioned until 1941.35 But the Court’s interpretation of the “state action” requirement in cases brought under section 1 of the Fifteenth Amendment narrowed the requirement there

and opened the possibility, when these decisions are considered with

cases decided under the Fourteenth Amendment, that Congress is

not limited to legislation directed to official discrimination.36

Thus, in Smith v. Allwright,

37 the exclusion of AfricanAmericans from political parties without the compulsion or sanction of state law was nonetheless held to violate the Fifteenth Amendment because political parties were so regulated otherwise as to be

in effect agents of the state and thus subject to the Fifteenth Amendment; additionally, in one passage the Court suggested that the failure of the state to prevent the racial exclusion might be the act

implicating the Amendment.38 Then, in Terry v. Adams,

39 the political organization was not regulated by the state at all and selected

its candidates for the Democratic primary election by its own processes; all eligible white voters in the jurisdiction were members of

the organization but African-Americans were excluded. Nevertheless, the Court held that this exclusion violated the Fifteenth Amendment, although a majority of the Justices did not agree on a rationale for the holding. Four of them thought the case simply

indistinguishable from Smith v. Allwright, and they therefore did

not deal with the central issue.40 Justice Frankfurter thought the

participation of local elected officials in the processes of the organi-

(1876), and United States v. Reese, 92 U.S. 214, 217–18 (1876), may be read to support the contention. Ex parte Yarbrough, 110 U.S. 651 (1884), involved a federal election and the assertion of congressional power to reach private interference with the

right to vote in federal elections, but the Court went further to broadly state the

power of Congress to protect the citizen in the exercise of rights conferred by the

Constitution, among which was the right to be free from discrimination in voting

protected by the Fifteenth Amendment. Id. at 665–66.

34 190 U.S. 127 (1903), holding unconstitutional Rev. Stat. § 5507, which was

section 5 of the Enforcement Act of 1870, ch. 114, 16 Stat. 140.

35 E.g., United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Williams, 341 U.S. 70, 77 (1951).

36 See “Congressional Definition of Fourteenth Amendment Rights,” supra.

37 321 U.S. 649 (1944).

38 “The United States is a constitutional democracy. Its organic law grants to

all citizens a right to participate in the choice of elected officials without restrictions

by any State because of race. This grant to the people of the opportunity for choice

is not to be nullified by a State through casting its electoral process in a form which

permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied.”

321 U.S. at 664.

39 345 U.S. 461 (1953).

40 345 U.S. at 477 (Justices Clark, Reed, and Jackson, and Chief Justice Vinson).

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2233
zation was sufficient to implicate state action.41 Three Justices thought

that when a purportedly private organization is permitted by the

state to assume the functions normally performed by an agency of

the state, then that association is subject to federal constitutional

restrictions,42 but this opinion also, in citing selected passages of

Yarbrough and Reese and Justice Bradley’s circuit opinion in

Cruikshank, appeared to be suggesting that the state action requirement is not indispensable.43 The 1957 Civil Rights Act 44 included a

provision prohibiting private action with intent to intimidate or coerce persons in respect of voting in federal elections and authorized the Attorney General to seek injunctive relief against such private actions regardless of the character of the election. The 1965

Voting Rights Act 45 went further and prohibited and penalized private actions to intimidate voters in federal, state, or local elections.

The Supreme Court has yet to consider the constitutionality of these

sections.

Federal Remedial Legislation.—The history of federal remedial legislation is of modern vintage.46 The 1957 Civil Rights Act 47

authorized the Attorney General of the United States to seek injunctive relief to prevent interference with the voting rights of citizens.

The 1960 Civil Rights Act 48 expanded on this authorization by permitting the Attorney General to seek a court finding of “pattern or

practice” of discrimination in any particular jurisdiction and authorizing upon the entering of such a finding the registration of all

qualified persons in the jurisdiction of the race discriminated against

41 345 U.S. at 470.

42 345 U.S. at 462, 468–69, 470 (Justices Black, Douglas, and Burton).

43 345 U.S. at 466–68. Justice Minton understood Justice Black’s opinion to do

away with the state action requirement. Id. at 485 (dissenting).

44 71 Stat. 637, 42 U.S.C. §§ 1971(b), 1971(c). In a suit to enjoin state officials

from violating 42 U.S.C. § 1971(a), derived from Rev. Stat. 2004, applying to all elections, the defendants challenged the constitutionality of the law because it applied

to private action as well as state. The Court held that inasmuch as the statute could

constitutionally be applied to the defendants it would not hear their contention that

as applied to others it would be void. United States v. Raines, 362 U.S. 17 (1960),

disapproving the approach of United States v. Reese, 92 U.S. 214 (1876).

45 Pub. L. 89–110, §§ 11–12, 79 Stat. 443, 42 U.S.C. §§ 1973i, 1973j.

46 The 1871 Act, ch. 99, 16 Stat. 433, provided for a detailed federal supervision

of the electoral process, from registration to the certification of returns. It was repealed in 1894. ch. 25, 28 Stat. 36. In Giles v. Harris, 189 U.S. 475 (1903), the Court,

in an opinion by Justice Holmes, refused to order the registration of 6,000 AfricanAmericans who alleged that they were being wrongly denied the franchise, the Court

observing that no judicial order would do them any good in the absence of judicial

supervision of the actual voting, which it was not prepared to do, and suggesting

that the petitioners apply to Congress or the President for relief.

47 Pub. L. 85–315, 71 Stat. 634. See United States v. Raines, 362 U.S. 17 (1960);

United States v. Alabama, 192 F. Supp. 677 (M.D. Ala. 1961), aff’d, 304 F.2d 583

(5th Cir.), aff’d, 371 U.S. 37 (1962).

48 Pub. L. 86–449, 74 Stat. 86.

2234 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
by court-appointed referees. This authorization moved the vindication of voting rights beyond a case-by-case process. Further amendments were added in 1964.49 Finally, in the Voting Rights Act of

1965,50 Congress went substantially beyond what it had done before. It provided that if the Attorney General determined that any

state or political subdivision maintained on November 1, 1964, any

“test or device” 51 and that less than 50 per cent of the voting age

population in that jurisdiction was registered on November 1, 1964,

or voted in the 1964 presidential election, such tests or devices were

to be suspended for five years and no person should be denied the

right to vote on the basis of such a test or device. A state could

reinstitute such a test or device within the prescribed period only

by establishing in a three-judge court in the District of Columbia

that the test or device did not have a discriminatory intent or effect and the covered jurisdiction could only change its election laws

in that period by obtaining the approval of the Attorney General or

a three-judge court in the District of Columbia. The Act also provided for the appointment of federal examiners who could register

persons meeting nondiscriminatory state qualifications who then must

be permitted to vote.

But, it was in upholding the constitutionality of the 1965 Act

in South Carolina v. Katzenbach that the Court sketched the outlines of a broad power in Congress to enforce the Fifteenth Amendment.52 Although section 1 authorized the courts to strike down state

statutes and procedures that denied the vote on the basis of race,

the Court held section 2 authorized Congress to go beyond proscribing certain discriminatory statutes and practices to “enforce” the

49 Pub. L. 88–352, 78 Stat. 241.

50 Pub. L. 89–110, 79 Stat. 437, 42 U.S.C. §§ 1973 et seq.

51 The phrase “test or device” was defined as any requirement for (1) demonstrating the ability to read, write, understand, or interpret any matter, (2) demonstrating any educational achievement or knowledge, (3) demonstrating good moral character, (4) proving qualifications by vouching of registered voters. Aimed primarily at

literacy tests, South Carolina v. Katzenbach, 383 U.S. 301, 333–34 (1966), the Act

was considerably broadened through the Court’s interpretation of section 5, 42 U.S.C.

§ 1973c, which require the approval either of the Attorney General or a three-judge

court in the District of Columbia before a state could put into effect any new voting

qualification or prerequisite to voting or standard, practice, or procedure with respect to voting, to include such changes as apportionment and districting, adoption

of at-large instead of district elections, candidate qualification regulations, provisions for assistance of illiterate voters, movement of polling places, adoption of appointive instead of elective positions, annexations, and public employer restrictions

upon employees running for elective office. Allen v. State Bd. of Elections, 393 U.S.

544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971); Georgia v. United States, 411

U.S. 526 (1973); Dougherty County Bd. of Educ. v. White, 439 U.S. 32 (1978). See

also United States v. Board of Comm’rs of Sheffield, 435 U.S. 110 (1978) (precoverage provisions apply to all entities having power over any aspect of voting, not

just “political subdivisions” as defined in Act).

52 383 U.S. 301 (1966).

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2235
guarantee by any rational means at its disposal. The standard was

the same as that used under the “Necessary and Proper” Clause

supporting other congressional legislation. Congress was therefore

justified in deciding that certain areas of the nation were the primary locations of voting discrimination and in directing its remedial legislation to those areas. The Court found that Congress chose

a rational formula based on the existence of voting tests that could

be used to discriminate and on low registration or voting rates, which

demonstrated the likelihood that the tests had been so used; that

Congress could properly suspend for a period all literacy tests in

the affected areas upon findings that they had been administered

discriminatorily and that illiterate whites had been registered while

both literate and illiterate African-Americans had not been; and that

Congress could require the states to seek federal permission to reinstitute old tests or institute new ones; and it could provide for

federal examiners to register qualified voters. 53

The Katzenbach decision appeared to afford Congress discretion to enact measures designed to enforce the Amendment through

broad affirmative prescriptions rather than through proscriptions of

specific practices.54 Subsequent decisions of the Burger Court confirmed the reach of this power. In one case, the Court held that

evidence of past discrimination in the educational opportunities available to black children precluded a North Carolina county from reinstituting a literacy test.55 And, in 1970, when Congress suspended

for a five-year period literacy tests throughout the nation,56 the Court

unanimously sustained the action as a valid measure to enforce the

Fifteenth Amendment.57

Moreover, in City of Rome v. United States,

58 the Court read

the scope of Congress’s remedial powers under section 2 of the Fifteenth Amendment to parallel similar reasoning under section 5 of

the Fourteenth Amendment. In City of Rome, the City had sought

to escape from coverage of the Voting Rights Act by showing that it

had not utilized any discriminatory practices within the prescribed

period.59 The lower court found that the City had engaged in practices without any discriminatory motive, but that its practices had

53 Id. at 333–37.

54 Justice Black dissented from the portion of the decision that upheld the requirement that before a state could change its voting laws it must seek approval of

the Attorney General or a federal court. Id. at 355.

55 Gaston Cty. v. United States, 395 U.S. 285 (1969).

56 84 Stat. 315, 42 U.S.C. § 1973aa.

57 Oregon v. Mitchell, 400 U.S. 112, 131–34, 144–47, 216–17, 231–36, 282–84

(1970).

58 446 U.S. 156 (1980).

59 Id. at 172.

2236 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
had a discriminatory impact.60 The City thus argued that, because

the Fifteenth Amendment reached only purposeful discrimination,

the Act’s proscription of effect, as well as of purpose, went beyond

Congress’s power.61 The Court held, however, that, even if discriminatory intent was a prerequisite to finding a violation of section 1

of the Fifteenth Amendment,62 Congress still had authority to proscribe electoral devices that had the effect of discriminating.63 The

Court held that section 2, like section 5 of the Fourteenth Amendment, was in effect a “Necessary and Proper Clause,” which enabled Congress to enact enforcement legislation that was rationally related to the end sought, and that section 2 of the Fifteenth

Amendment did not prohibit such legislation since the legislation

was consistent with the letter and spirit of the Constitution, even

though the actual practice, which the legislation outlawed or restricted, would not, in itself, violate the Fifteenth Amendment.64 In

so acting, Congress could prohibit state action that perpetuated the

effect of past discrimination, or that, because of the existence of past

purposeful discrimination, raised a risk of purposeful discrimination that might not lend itself to judicial invalidation.65 The Court

stated:

It is clear, then, that under § 2 of the Fifteenth Amendment Congress may

prohibit practices that in and of themselves do not violate § 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting

are “appropriate,” as that term is defined in McCulloch v. Maryland and Ex

parte Virginia . . . . Congress could rationally have concluded that, because

electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.66

In 1975 and 1982, Congress extended and revised the Voting

Rights Act.67 Congress used the 1982 Amendments to revitalize sec60 Id.

61 Id. at 173.

62 Cf. City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980).

63 Id.

64 Id. at 174–77.

65 Id. at 175–76.

66 City of Rome v. United States, 446 U.S. 156, 177 (1980). In Lopez v. Monterey

Cty., 525 U.S. 266 (1999), the Court reiterated its prior holdings that Congress may

exercise its enforcement power based on discriminatory effects, and without any finding of discriminatory intent.

67 The 1975 amendments, Pub. L. 94–73, 89 Stat. 400, extended the Act for seven

years; expanded it to include those areas having minorities distinguished by their

language, i.e., “persons who are American Indian, Asian American, Alaskan Natives

or of Spanish heritage,” § 207, in which certain statistical tests are met; and required election materials to be provided in an alternative language if more than five

percent of the voting age citizens of a political subdivision are members of a single

language minority group whose illiteracy rate is higher than the national rate. § 301.

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2237
tion 2 of the Act, which, unlike section 5, applies nationwide.68 As

enacted in 1965, section 2 largely tracked the language of the Fifteenth Amendment. In City of Mobile v. Bolden,

69 a majority of the

Court agreed that the Fifteenth Amendment and section 2 of the

Act were coextensive, but the Justices did not agree on the meaning to be ascribed to the statute. A plurality believed that, because

the constitutional provision reached only purposeful discrimination, section 2 was similarly limited. A major purpose of Congress

in 1982 had been to set aside this possible interpretation and to

provide that any electoral practice “which results in a denial or abridgement” of the right to vote on account of race or color will violate

the Act.70

The Court in Shelby County v. Holder,

71 however, emphasized

the limits to the enforcement power of the Fifteenth Amendment

in striking down section 4 of the Act, which provided the formula

that determined which states or electoral districts are required to

submit electoral changes to the Department of Justice or a federal

court for preclearance under section 5 of the Act. In 2006, Congress

had reauthorized the Act for twenty-five years, and provided that

The 1982 amendments, Pub. L. 97–205, 96 Stat. 131, in addition to the section 2

revision, provided that a covered jurisdiction may remove itself from the Act’s coverage by proving to the special court in the District of Columbia that the jurisdiction

has complied with the Act for the previous ten years and that it has taken positive

steps both to encourage minority political participation and to remove structural barriers to minority electoral influence. § 2. Moreover, the 1982 amendments change

the result in Beer v. United States, 425 U.S. 130 (1976), in which the Court had

held that a covered jurisdiction was precluded from altering a voting practice covered by the Act only if the change would lead to a retrogression in the position of

racial minorities; if a change in voting practice merely perpetuated a practice that

was not covered by the Voting Rights Act because it was enacted prior to November

1964, the jurisdiction could implement it. The 1982 amendments provide that the

change may not be approved if it would “perpetuate voting discrimination,” in effect

applying the new section 2 results test to preclearance procedures. S. REP. NO. 417,

97th Congress, 2d Sess. 12 (1982); H.R. REP. NO. 227, 97th Congress, 1st Sess. 28

(1981).

68 Private parties may bring suit to challenge electoral practices under section

2.

69 446 U.S. 55 (1980). See id. at 60–61 (Burger, C.J., Stewart, Powell, Rehnquist,

JJ.), and id. at 105 n.2 (Marshall, J. dissenting).

70 Before the 1982 amendments, section 2 provided that “[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed

or applied by any State or political subdivision to deny or abridge the right of any

citizen of the United States to vote on account of race or color.” Pub. L. 89–110, § 2,

79 Stat. 437. Section 3 of the 1982 amendments amended section 2 of the Act by

inserting the language quoted and by setting out a nonexclusive list of factors making up a “totality of circumstances test” by which a violation of section 2 would be

determined. 96 Stat. 131, 134, amending 42 U.S.C. § 1973. Without any discussion

of the Fifteenth Amendment, the Court in Thornburg v. Gingles, 478 U.S. 30 (1986),

interpreted and applied the “totality of the circumstances” test in the context of multimember districting. Id. at 80.

71 570 U.S. ___, No. 12–96, slip op. (2013).

2238 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE
the preclearance requirement extended to jurisdictions that had a

voting test and less than 50 percent voter registration or turnout

as of 1972.72

In Shelby County, the Court described the section 5 preclearance process as an “extraordinary departure from the traditional

course of relations between the States and the Federal Government” 73 and as “extraordinary legislation otherwise unfamiliar to

our federal system.” 74 This led the Court to find the formula in section 4 violated the “fundamental principle of equal sovereignty” among

states because the section, by definition, applied to only some states

and not others.75 While the Court acknowledged that the disparate

treatment of states under section 4 could be justified by “unique

circumstances,” such as those before Congress at the time of enactment of the Voting Rights Act,76 the Court held that “Congress could

no longer distinguish between States in such a fundamental way

based on 40-year-old-data, when today’s statistics tell an entirely

different story” with respect to racial discrimination in covered jurisdictions.77 The Court added, however, that Congress could “draft

another formula [for pre-clearance] based on current conditions” that

demonstrate “that exceptional conditions still exist justifying such

an ‘exceptional departure from the traditional course of relations

between the States and the Federal Government.’ ” 78

72 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act

Reauthorization and Amendments Act, Pub. L. 109–246, 120 Stat. 577.

73 570 U.S. ___, No. 12–96, slip op. at 12

74 Id. (citation omitted).

75 570 U.S. ___, No. 12–96, slip op. at 9 (quoting Nw. Austin Mun. Util. Dist.

No. One v. Holder, 557 U.S. 193, 203 (2009)). The significance of the principle of

equal sovereignty as enunciated in Coyle v. Smith had been considered by the Court

in a previous challenge to the Act. See South Carolina v. Katzenbach, 383 U.S. 301,

328–29 (1966). Considering the disparate treatment of states under the section 5

preclearance requirement, the Katzenbach Court had referenced the case of Coyle v.

Smith, 221 U.S. 559 (1911), which upheld the authority of Oklahoma to move its

state capitol despite language to the contrary in the enabling act providing for its

admission as a state. This case, while based on the theory that the United States

“was and is a union of States, equal in power, dignity and authority,” 221 U.S. at

580, was distinguished by the Court in Katzenbach as concerning only the admission of new states and not remedies for actions occurring subsequent to that event.

The Court in Shelby County held, however, that a broader principle regarding equal

sovereignty “remains highly pertinent in assessing subsequent disparate treatment

of States.” 570 U.S. ___, No. 12–96, slip op. at 11 (citing Nw. Austin, 557 U.S. at

203).

76 570 U.S. ___, No. 12–96, slip op. at 12–13 (quoting Katzenbach, 383 U.S. at

334–335).

77 Id. at 13, 23–24.

78 Id. at 24 (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500–01 (1992)).

AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 2239