1937

FIFTEENTH AMENDMENT

RIGHT OF CITIZENS TO VOTE

CONTENTS

Page

Abolition of Suffrage Qualifications on Basis of Race ............................................................ 1939

Adoption and Judicial Enforcement .................................................................................. 1939

Adoption ....................................................................................................................... 1939

The Judicial View of the Amendment ....................................................................... 1940

Grandfather Clauses ................................................................................................... 1940

The White Primary ..................................................................................................... 1941

Literacy Tests .............................................................................................................. 1942

Racial Gerrymandering ............................................................................................... 1942

Congressional Enforcement ............................................................................................... 1943

State Action ................................................................................................................. 1944

Federal Remedial Legislation ..................................................................................... 1946

1939

1Supra, pp. 1926–27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892–1911. 2W. 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).

RIGHT OF CITIZENS TO VOTE

FIFTEENTH AMENDMENT

SECTION 1. 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.

SECTION 2. 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 § 2, 1 left the issue of African American

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 African American 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 African American suffrage, those

who wanted to go beyond a limited guarantee and enact universal

male suffrage, including abolition of all educational and propertyholding tests, and those who wanted or who were willing to settle

for an amendment merely proscribing racial qualifications in deter-
1940 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

4Gillette, supra n., 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).

mining who could vote under any other standards the States

wished to have. 4 The later 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

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 African

Americans 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 which have been voided, one of the first to be held unconstitutional 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
AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 1941

7Guinn v. United States, 238 U.S. 347 (1915).

8Lane v. Wilson, 307 U.S. 268, 275 (1939).

9See also supra, p. 120. 10 United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S.

649 (1944). 11 Nixon v. Herndon, 273 U.S. 536 (1927). 12 Nixon v. Condon, 286 U.S. 73 (1932).

vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited 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.’’ 7

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which 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 simpleminded 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.’’ 8 The impermissible effect of the statute, said

the Court, 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.

The White Primary.—Indecision was displayed by the Court,

however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to

its becoming convinced that primary contests were in fact elections

to which federal constitutional guarantees applied, 10 the Court had

relied upon the equal protection clause to strike down the Texas

White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections

to members of state political parties as determined by the central

committees thereof. 12 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
1942 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

13Grovey v. Townsend, 295 U.S. 45 (1935). 14Smith v. Allwright, 321 U.S. 649 (1944). 15 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). 16Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see

infra, p. 1945. 17Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton

County Bd. of Elections, 360 U.S. 45 (1960). 18Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949).

On congressional action on literacy tests, see infra, pp. 1946–47. 19Supra, pp. 1902–11. 20 364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 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 hence it may not under

the Fifteenth Amendment exclude African Americans from such

elections. 14 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, 15 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 county-wide organization which, 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. 16

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

tests which 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 to deny equal protection. 17 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 condemned as violative of the Fifteenth Amendment. 18

Racial Gerrymandering.—The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population

basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the

Court found a Fifteenth Amendment violation in the redrawing of

a municipal boundary line into a 28-sided figure which excluded

from the city all but four or five of 400 African Americans but no
AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 1943

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

755 (1973). 22 446 U.S. 55 (1980). 23On the issue of motivation versus impact under the equal protection clause,

see supra, pp. 1815–20. 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). 24 Id. 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). 25See 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

had effectively overruled the City of Mobile intent standard in returning to a ‘‘totality of the circumstances’’ results test. 26Guinn v. United States, 238 U.S. 347, 362–63 (1915). 27 Ex parte Yarbrough, 110 U.S. 651, 665 (1884). 28 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.

whites, and which 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, 21

and in City of Mobile v. Bolden, 22 in the course of a considerably

divided decision with respect to the requirement of discriminatory

motivation in Fifteenth Amendment cases, 23 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. 24 Congressional

amendment of § 2 of the Voting Rights Act may obviate the further

development of constitutional jurisprudence in this area, however. 25

Congressional Enforcement

Although the Fifteenth Amendment is ‘‘self-executing,’’ 26 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.’’ 27 Following ratification of

the Fifteenth Amendment in 1870, Congress passed the Enforcement Act of 1870, 28 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 Amend-
1944 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

29 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). 30Supra, pp. 1786–1802. ‘‘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). 31The 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 (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. 32 190 U.S. 127 (1903), holding unconstitutional Rev. Stat. § 5507, which was § 5

of the Enforcement Act of 1870, ch. 114, 16 Stat. 140. 33 E.g., United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Williams, 341 U.S. 70, 77 (1951).

ments. 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. 29 More recent legislation has been much more far-reaching

in this respect and has been sustained.

State Action.—Like § 1 of the Fourteenth, § 1 of the Fifteenth

Amendment prohibits official denial of the rights therein guaranteed, giving rise to the ‘‘state action’’ doctrine. 30 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. 31 But in James v. Bowman 32 the Court held

that legislation based on the Fifteenth Amendment which attempted to prohibit private as well as official interference with the

right to vote on racial grounds was unconstitutional, and that interpretation was not questioned until 1941. 33 But the Court’s interpretation of the ‘‘state action’’ requirement in cases brought

under § 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
AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 1945

34Supra, pp. 1933–36. 35 321 U.S. 649 (1944). 36 ‘‘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.’’

Id. at 664. 37 345 U.S. 461 (1953). 38 Id. at 477 (Justices Clark, Reed, and Jackson, and Chief Justice Vinson). 39 Id. at 470. 40 Id. at 462, 468–69, 470 (Justices Black, Douglas, and Burton). 41 Id. at 466–68. Justice Minton understood Justice Black’s opinion to do away

with the state action requirement. Id. at 485 (dissenting). 42 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

Congress is not limited to legislation directed to official discrimination. 34

Thus, in Smith v. Allwright, 35 the exclusion of African Americans 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. 36 Then, in Terry v. Adams, 37 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 no rationale was agreed upon by a majority

of the Justices. Four of them thought the case simply indistinguishable from Smith v. Allwright and thus did not deal with the central

issue. 38 Justice Frankfurter thought the participation of local elected officials in the processes of the organization was sufficient to implicate state action. 39 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, 40 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. 41 The 1957 Civil Rights Act 42 included a provision
1946 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

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). 43Pub. L. No. 89–110, §§ 11–12, 79 Stat. 443, 42 U.S.C. §§ 1973i, 1973j. 44The 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

African Americans 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. 45Pub. L. No. 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). 46Pub. L. No. 86–449, 74 Stat. 86. 47Pub. L. No. 88–352, 78 Stat. 241. 48Pub. L. No. 89–110, 79 Stat. 437, 42 U.S.C. § 1973 et seq. 49The 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 § 5, 42

U.S.C. § 1973c, which require the approval either of the Attorney General or a threejudge 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, adopprohibiting 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 43 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. 44 The 1957 Civil Rights Act 45

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 46 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 by court-appointed referees. This authorization moved the

vindication of voting rights beyond a case-by-case process. Further

amendments were added in 1964. 47 Finally, in the Voting Rights

Act of 1965 48 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’’ 49 and that less than 50 per cent of the
AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 1947

tion 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 Board 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)

(pre-coverage provisions apply to all entities having power over any aspect of voting,

not just ‘‘political subdivisions’’ as defined in Act). 50 380 U.S. 128 (1965). 51 380 U.S. 145 (1965). See also United States v. Thomas, 362 U.S. 58 (1960);

United States v. Alabama, 362 U.S. 602 (1960); Alabama v. United States, 371 U.S.

37 (1962).

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.

These laws the Supreme Court upheld and expansively applied. In United States v. Mississippi 50 the Court held that the Attorney General was properly authorized to sue for preventive relief

to protect the right of citizens to vote, that the State could be sued,

and that various election officers were defendants and the suit

could not be defeated by the resignation of various officers. A lower

federal court’s judgment voiding an ‘‘interpretation test,’’ which required an applicant to interpret a section of the state or federal

constitution to the satisfaction of the voting registrar was approved

in Louisiana v. United States. 51 The test was bad because it vested

vast discretion in the registrars to determine qualifications while

imposing no definite and objective standards for administration of

the tests, a system which the evidence showed had been administered so as to disqualify African Americans and qualify whites. The

Court also affirmed the lower court’s decree invalidating imposition

of a new objective test for new voters unless the State required all

present voters to reregister so that all voters were tested by the

same standards.

But it was in upholding the constitutionality of the 1965 Act

that the Court sketched in the outlines of a broad power in Con-
1948 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

52South Carolina v. Katzenbach, 383 U.S. 301 (1966). 53 Justice Black dissented from that portion of the decision which 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. 54Gaston County v. United States, 395 U.S. 285 (1969). 55 84 Stat. 315, 42 U.S.C. § 1973aa. 56Oregon v. Mitchell, 400 U.S. 112, 131–34, 144–47, 216–17, 231–36, 282–84

(1970). 57 446 U.S. 156 (1980).

gress to enforce the Fifteenth Amendment. 52 While § 1 authorized

the courts to strike down state statutes and procedures which denied the vote on the basis of race, the Court held, § 2 authorized

Congress to go beyond proscribing certain discriminatory statutes

and practices to ‘‘enforcing’’ the guarantee by any rational means

at its disposal. The standard was the same as that employed 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. Congress chose a rational formula based on the existence of voting

tests which could be used to discriminate and based on low registration or voting rates demonstrating the likelihood that the tests

had been so used; it 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; it could require the States to seek federal permission to

reinstitute old tests or to institute new ones; and it could provide

for federal examiners to register qualified voters. The nearly unanimous decision affords Congress a vast amount of discretion to enact

measures designed to enforce the Amendment through broad affirmative prescriptions rather than through proscriptions of specific

practices. 53 Subsequent decisions confirm the reach of this power.

In one case, the Court held that evidence of discrimination in the

educational opportunities available to black children in the county

as compared to that available to white children during the period

in which most of the adults who were now potential voters were in

school precluded a North Carolina county from reinstituting a literacy test because of the past educational discrimination. 54 And

when Congress in 1970 55 suspended for a five-year period literacy

tests throughout the Nation, the Court unanimously sustained the

action as a valid measure to enforce the Fifteenth Amendment. 56

Moreover, in City of Rome v. United States, 57 the Court read

even more broadly the scope of Congress’ remedial powers under

§ 2 of the Fifteenth Amendment, paralleling the similar reasoning

under § 5 of the Fourteenth. The jurisdiction sought to escape from
AMENDMENT 15—RIGHT OF CITIZENS TO VOTE 1949

58 Cf. City of Mobile v. Bolden, 446 U.S. 55 (1980). 59 City of Rome v. United States, 446 U.S. 156, 177 (1980). Justices Powell,

Rehnquist, and Stewart dissented. Id. at 193, 206. 60The 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, 42 U.S.C. § 1973 1f(c)(3), in which certain statistical tests are met and requiring election materials be provided in the language(s)

of the group(s), and enlarged to require bilingual elections 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. The 1982

amendments, Pub. L. 97–205, 96 Stat. 131, in addition to the § 2 revision, alter after

August 5, 1984, the provisions by which a covered jurisdiction may take itself from

coverage of the Voting Rights Act by showing that it had not utilized any discriminatory practices within the prescribed period. The

lower court had found that the City had engaged in practices without any discriminatory motive but that the practices had had a discriminatory impact. The City thus argued that, inasmuch as the

Fifteenth Amendment reached only purposeful discrimination, the

Act’s proscription of effect as well as purpose went beyond Congress’ power. The Court held, however, that even if discriminatory

intent was a prerequisite to finding a violation of § 1 of the Fifteenth Amendment by the courts, 58 Congress had the authority to

go beyond that and proscribe electoral devices that had the effect

of discriminating. The section, like § 5 of the Fourteenth Amendment, was in effect a ‘‘necessary and proper clause’’ enabling Congress to enact enforcement legislation which was rationally related

to the end sought and which was not prohibited by it but was consistent with the letter and spirit of the Constitution, even though

the actual practice outlawed or restricted would not be judicially

found to violate the Fifteenth Amendment. 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. ‘‘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. 59 City of Rome is

highly significant for the validity of congressional additions to the

Voting Rights Act. In 1975 and 1982, the Act was extended and revised to increase its effectiveness, 60 and the 1982 Amendments
1950 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE

under the Act by proving to the special court in the District of Columbia that it 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. Moreover, the 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 only if the change would

lead to a retrogression in the position of racial minorities; even if the change was

only a little ameliorative of existing discrimination, 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 § 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).

61Private parties may bring suit to challenge electoral practices under § 2. It

provided, before the 1982 amendments, 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.’’

62 446 U.S. 55 (1980). See id. at 60–61 (Justices Stewart, Powell, Rehnquist, and

Chief Justice Burger), and id. at 105 n.2 (Justice Marshall dissenting).

63 In § 3 of the 1982 amendments, § 2 of the Act was amended by the insertion

of the quoted phrase and the addition of a section setting out a nonexclusive list

of factors making up a totality of circumstances test by which a violation of § 2

would be determined. 96 Stat. 134, amending 42 U.S. § 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.

64See Rogers v. Lodge, 458 U.S. 613 (1982).

were addressed to revitalizing § 2 of the Act, which, unlike §§ 4 and

5, that remain limited to a number of jurisdictions, applies nationwide. 61 As enacted in 1965, § 2 largely tracked the language of the

Fifteenth Amendment itself. In City of Mobile v. Bolden, 62 a majority of the Court agreed that the Fifteenth Amendment and § 2 of

the Act were coextensive, but the Justices did not agree on the

meaning thus to be ascribed to the statute. A plurality did believe

that because the constitutional provision reached only purposeful

discrimination, § 2 was similarly limited. It was one major purpose

of Congress in 1982 to set aside this possible interpretation and

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. 63 The subsequent Court adoption, or re-adoption,

of the standards by which it can be determined when a practice denies or abridges the right to vote, though couched in terms of proving intent or motivation, may well bring the constitutional and

statutory standards into such close agreement that the constitutional question will not arise. 64