CRS Annotated Constitution
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Federal Remedial Legislation.—The history of federal remedial legislation is of modern vintage.44 The 1957 Civil Rights Act45 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 Act46 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[p.1947]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. Mississippi50 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[p.1948]gress to enforce the Fifteenth Amendment.52 While Sec. 1 authorized the courts to strike down state statutes and procedures which denied the vote on the basis of race, the Court held, Sec. 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 Sec. 2 of the Fifteenth Amendment, paralleling the similar reasoning under Sec. 5 of the Fourteenth. The jurisdiction sought to escape from[p.1949]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 Sec. 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 Sec. 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 Sec. 2 of the Fifteenth Amendment Congress may prohibit practices that in and of themselves do not violate Sec. 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[p.1950]were addressed to revitalizing Sec. 2 of the Act, which, unlike §§ 4 and 5, that remain limited to a number of jurisdictions, applies nationwide.61 As enacted in 1965, Sec. 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 Sec. 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, Sec. 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
Supplement: [P. 1949, add to n.59:]
In Lopez v. Monterey County, 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.
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