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

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