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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 basis19 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[p.1943]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 Sec. 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[p.1944]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.


17 Williams v. Mississippi, 170 U.S. 213 (1898) ; cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960) .
18 Davis 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.
19 Supra, pp. 1902–11.
20 364 U.S. 339 (1960) . See also Wright v. Rockefeller, 376 U.S. 52 (1964) .
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) .
23 On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815–20. On the plurality’s view, see 446U.S. at 61–65 446U.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) .
25 See Voting Rights Act Amendments of 1982, Pub. L. 97–205, 96 Stat. 131 , amending 42 U.S.C. Sec. 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.
26 Guinn 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 .
29 Ch. 25 28 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).
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