Congressional Enforcement

Although the Fifteenth Amendment is “self-executing,”27 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.”28 Following ratification of the Fifteenth Amendment in 1870, Congress passed the Enforcement Act of 1870,29 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nullified by the Supreme Court and the provisions aimed at official action proved ineffectual and much of it was later repealed.30 More recent legislation has been much more far-reaching in this respect and has been sustained.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.31 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.32 In James v. Bowman,33 however, the 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 1941.34 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.35

Thus, in Smith v. Allwright,36 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.37 Then, in Terry v. Adams,38 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.39 Justice Frankfurter thought the participation of local elected officials in the processes of the organization was sufficient to implicate state action.40 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,41 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.42 The 1957 Civil Rights Act43 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 Act44 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 reme-dial legislation is of modern vintage.45 The 1957 Civil Rights Act46 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 Act47 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 1964.48 Finally, in the Voting Rights Act of 1965,49 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”50 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.51 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 guarantee by any rational means at its disposal.52 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.53 The Court concluded 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.54

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.55 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 African-American children precluded a North Carolina county from reinstituting a literacy test.56 And, in 1970, when Congress suspended for a five-year period literacy tests throughout the nation,57 the Court unanimously sustained the action as a valid measure to enforce the Fifteenth Amendment.58

Moreover, in City of Rome v. United States,59 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.60 The lower court found that the City had engaged in practices without any discriminatory motive, but that its practices had had a discriminatory impact.61 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.62 The Court held, however, that, even if discriminatory intent was a prerequisite to finding a violation of Section 1 of the Fifteenth Amendment,63 Congress still had authority to proscribe electoral devices that had the effect of discriminating.64 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.65 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.66 The Court stated: 67

In 1975 and 1982, Congress extended and revised the Voting Rights Act.68 Congress used the 1982 Amendments to revitalize Section 2 of the Act, which, unlike Section 5, applies nationwide.69 As enacted in 1965, Section 2 largely tracked the language of the Fifteenth Amendment. In City of Mobile v. Bolden,70 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.71

The Court in Shelby County v. Holder,72 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 preclearance requirement extended to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972.73

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”74 and as “extraordinary legislation otherwise unfamiliar to our federal system.”75 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.76 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,77 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.78 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.’ ”79

Footnotes

27
Guinn v. United States, 238 U.S. 347, 362–63 (1915). back
28
Ex parte Yarbrough, 110 U.S. 651, 665 (1884). back
29
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. back
30
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. §§ 24142, and 42 U.S.C. §§ 1971(a), 1983, and 1985(3). back
31
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). back
32
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 (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. back
33
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. back
34
E.g., United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Williams, 341 U.S. 70, 77 (1951). back
35
See “Congressional Definition of Fourteenth Amendment Rights,” supra. back
36
321 U.S. 649 (1944). back
37
“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. back
38
345 U.S. 461 (1953). back
39
345 U.S. at 477 (Justices Clark, Reed, and Jackson, and Chief Justice Vinson). back
40
345 U.S. at 470. back
41
345 U.S. at 462, 468–69, 470 (Justices Black, Douglas, and Burton). back
42
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). back
43
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). back
44
Pub. L. 89–110, §§ 11–12, 79 Stat. 443, 42 U.S.C. §§ 1973i, 1973j. back
45
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 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. back
46
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). back
47
Pub. L. 86–449, 74 Stat. 86. back
48
Pub. L. 88–352, 78 Stat. 241. back
49
Pub. L. 89–110, 79 Stat. 437, 42 U.S.C. §§ 1973et seq. back
50
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) (pre-coverage provisions apply to all entities having power over any aspect of voting, not just “political subdivisions” as defined in Act). back
51
383 U.S. 301 (1966). back
52
Id. at 325–26. back
53
Id. at 331. back
54
Id. at 333–37. back
55
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 (Black, J., dissenting). back
56
Gaston Cty. v. United States, 395 U.S. 285 (1969). back
57
84 Stat. 315, 42 U.S.C. § 1973aa (transferred to 52 U.S.C. § 10501 (2012)). back
58
Oregon v. Mitchell, 400 U.S. 112, 131–34, 144–47, 216–17, 231–36, 282–84 (1970). back
59
446 U.S. 156 (1980). back
60
Id. at 172. back
61
Id. 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. back
62
Id. at 173. back
63
Cf. City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980). back
64
See City of Rome, 446 U.S. at 173. back
65
Id. at 174–77. back
66
Id. at 175–76. back
68
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,” id. at § 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. 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 changed 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. 97–417, at 12 (1982); H.R. REP. NO. 97–227, at 28 (1981). back
69
Private parties may bring suit to challenge electoral practices under Section 2. back
70
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). back
71
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. back
72
570 U.S. ___, No. 12–96, slip op. (2013). back
73
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, Pub. L. 109–246, 120 Stat. 577 (2006). back
74
Shelby County, slip op. at 12. back
75
Id. (citation omitted). back
76
Id. 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.” Shelby County, slip op. at 11 (citing Nw. Austin, 557 U.S. at 203). back
77
Shelby County, slip op. at 12–13 (quoting Katzenbach, 383 U.S. at 334–335). back
78
Id. at 13, 23–24. back
79
Id. at 24 (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500–01 (1992)). back