Evolution of Negro Suffrage & the 15th Amendment: Adoption to Judicial Enforcement, Schemes and Mind Maps of History

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FIFTEENTH AMENDMENT RIGHT OF CITIZENS TO VOTE CONTENTS Page Sections 1 and 2. ...................................................................................................................... 2221 Abolition of Suffrage Qualifications On Basis of Race .................................................... 2221 Adoption and Judicial Enforcement .......................................................................... 2221 Adoption ................................................................................................................ 2221 The Judicial View of the Amendment ................................................................ 2222 Grandfather Clauses ............................................................................................ 2223 The White Primary .............................................................................................. 2224 Literacy Tests ....................................................................................................... 2224 Racial Gerrymandering ....................................................................................... 2225 Congressional Enforcement ........................................................................................ 2226 State Action .......................................................................................................... 2226 Federal Remedial Legislation ............................................................................. 2228 2219 Ge0, ministering a trust for the benefit of persons who can trace their ancestry to Hawaiian inhabitants of 1778.9 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 sev- eral devices that have been held unconstitutional, one of the first was the “grandfather clause.” Beginning in 1895, several states en- acted temporary laws whereby persons who had been voters, or de- scendants 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 vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permitted to register without taking any tests. With the achievement of the intended result, most states per- mitted 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 per- petuating “the very conditions which the [Fifteenth] Amendment was intended to destroy.” 10 The Court did not experience any difficulty in voiding a subse- quent Oklahoma statute of 1916 that provided that all persons, ex- cept 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 ad- ditional brief period to register, should be perpetually disenfran- chised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified “sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which ef- fectively handicap exercise of the franchise by the colored race al- though the abstract right to vote may remain unrestricted as to race.” 11 The impermissible effect of the statute, the Court said, was auto- matically 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. 9 Rice v. Cayetano, 528 U.S. 495, 514 (2000). 10 Guinn v. United States, 238 U.S. 347 (1915). 11 Lane v. Wilson, 307 U.S. 268, 275 (1939). 2223AMENDMENT 15—RIGHT OF CITIZENS TO VOTE The White Primary.—The Court displayed indecision, how- ever, when it was called upon to deal with the exclusion of African- Americans from participation in primary elections. Prior to its be- coming convinced that primary contests were in fact elections to which federal constitutional guarantees applied,12 the Court had relied upon the Equal Protection Clause to strike down the Texas White Pri- mary Law 13 as well as a later Texas statute that contributed to a similar exclusion by limiting voting in primary elections to mem- bers of state political parties as determined by the central commit- tees of such parties.14 When exclusion of African-Americans was there- after perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by ei- ther the Fourteenth or the Fifteenth Amendments.15 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 pri- mary election is a state agency, and consequently may not under the Fifteenth Amendment exclude African-Americans from such elec- tions.16 An effort by South Carolina to escape the effects of this rul- ing by repealing all statutory provisions regulating primary elec- tions and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty,17 but the Su- preme Court, although nearly unanimous on the result, was un- able to come to a majority agreement with regard to the exclusion of African-Americans by the Jaybird Association, a countywide or- ganization that, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Demo- cratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court.18 Literacy Tests.—At an early date the Court held that literacy tests that 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 12 United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944). 13 Nixon v. Herndon, 273 U.S. 536 (1927). 14 Nixon v. Condon, 286 U.S. 73 (1932). 15 Grovey v. Townsend, 295 U.S. 45 (1935). 16 Smith v. Allwright, 321 U.S. 649 (1944). 17 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). 18 Terry v. Adams, 345 U.S. 461 (1953). For analysis of the opinions, see “State Action,” supra. 2224 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE to deny equal protection. Voter qualifications 19 But an Alabama con- stitutional amendment, the legislative history of which disclosed that both its object and its intended administration were to disenfran- chise African-Americans, was held to violate the Fifteenth Amend- ment.20 Racial Gerrymandering.—The Court’s series of decisions in- terpreting the Equal Protection Clause as requiring the apportion- ment and districting of state legislatures solely on the basis of popu- lation 21 had its beginning in Gomillion v. Lightfoot,22 in which the Court found a violation of the Fifteenth Amendment in the redraw- ing of a municipal boundary line into a 28-sided figure that ex- cluded from the city all but four or five of 400 African-Americans but no whites, and that thereby continued white domination of mu- nicipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minor- ity voting power, were decided under the Equal Protection Clause,23 and, in City of Mobile v. Bolden,24 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases,25 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.26 Congressional amendment of 19 Williams v. Mississippi, 170 U.S. 213 (1898); Cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). 20 Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff ’d, 336 U.S. 933 (1949). 21 See “Apportionment and Districting,” supra. 22 364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964). 23 E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973). 24 446 U.S. 55 (1980). 25 On the issue of motivation versus impact under the equal protection clause, see discussion of “Testing Facially Neutral Classifications Which Impact on Minori- ties” in the Fourteenth Amendment, supra. 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). 26 446 U.S. 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 Ste- vens concurring), 102 (Justice White dissenting), 125–35 (Justice Marshall dissent- ing). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982). 2225AMENDMENT 15—RIGHT OF CITIZENS TO VOTE ment, although a majority of the Justices did not agree on a ratio- nale 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.40 Justice Frankfurter thought the participation of local elected officials in the processes of the organi- zation was sufficient to implicate state action.41 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,42 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 require- ment is not indispensable.43 The 1957 Civil Rights Act 44 included a provision prohibiting private action with intent to intimidate or co- erce persons in respect of voting in federal elections and autho- rized the Attorney General to seek injunctive relief against such pri- vate actions regardless of the character of the election. The 1965 Voting Rights Act 45 went further and prohibited and penalized pri- vate 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.46 The 1957 Civil Rights Act 47 authorized the Attorney General of the United States to seek injunc- tive relief to prevent interference with the voting rights of citizens. 40 345 U.S. at 477 (Justices Clark, Reed, and Jackson, and Chief Justice Vinson). 41 345 U.S. at 470. 42 345 U.S. at 462, 468–69, 470 (Justices Black, Douglas, and Burton). 43 345 U.S. at 466–68. Justice Minton understood Justice Black’s opinion to do away with the state action requirement. Id. at 485 (dissenting). 44 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 elec- tions, 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). 45 Pub. L. 89–110, §§ 11–12, 79 Stat. 443, 42 U.S.C. §§ 1973i, 1973j. 46 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 re- pealed 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. 47 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). 2228 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE The 1960 Civil Rights Act 48 expanded on this authorization by per- mitting the Attorney General to seek a court finding of “pattern or practice” of discrimination in any particular jurisdiction and autho- rizing 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 vindica- tion of voting rights beyond a case-by-case process. Further amend- ments were added in 1964.49 Finally, in the Voting Rights Act of 1965,50 Congress went sub- stantially beyond what it had done before. It provided that if the Attorney General determined that any state or political subdivi- sion maintained on November 1, 1964, any “test or device” and that less than 50 per cent of the voting age population in that jurisdic- tion was registered on November 1, 1964, or voted in the 1964 presi- dential 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.51 Aimed primarily at literacy tests,52 the Act was considerably broadened through the Court’s interpretation of § 5,53 which requires the approval of either 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 new standard, practice, or procedure with respect to vot- ing. Thus, preclearance became required for changes such as appor- tionment and districting, adoption of at-large instead of district elec- tions, candidate qualification regulations, provisions for assistance of illiterate voters, movement of polling places, adoption of appoint- ive instead of elective positions, annexations, and public employer restrictions upon employees running for elective office.54 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 ef- fect and the covered jurisdiction could only change its election laws 48 Pub. L. 86–449, 74 Stat. 86. 49 Pub. L. 88–352, 78 Stat. 241. 50 Pub. L. 89–110, 79 Stat. 437, 42 U.S.C. §§ 1973 et seq. 51 The phrase “test or device” was defined as any requirement for (1) demonstrat- ing the ability to read, write, understand, or interpret any matter, (2) demonstrat- ing any educational achievement or knowledge, (3) demonstrating good moral char- acter, (4) proving qualifications by vouching of registered voters. 52 South Carolina v. Katzenbach, 383 U.S. 301, 333–34 (1966), 53 42 U.S.C. § 1973c. 54 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). 2229AMENDMENT 15—RIGHT OF CITIZENS TO VOTE in that period by obtaining the approval of the Attorney General or a three-judge court in the District of Columbia.55 The Supreme Court upheld and expansively applied these laws. In United States v. Mississippi,56 it 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 vari- ous election officers were defendants and the suit could not be de- feated by the resignation of various officers. In Louisiana v. United States,57 the Court upheld a lower federal court’s judgment voiding an “interpretation test” that required an applicant to interpret a section of the state or federal constitution to the satisfaction of the voting registrar. The test was unconstitutional because it vested vast discretion in the registrars to determine qualifications, it imposed no definite and objective standards for administration of the tests, and it had been administered so as to disqualify African-Americans and qualify whites. The Court also affirmed the lower court’s de- cree 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 in South Carolina v. Katzenbach that the Court sketched in the out- lines of a broad power in Congress to enforce the Fifteenth Amend- ment.58 Although § 1 authorized the courts to strike down state stat- utes and procedures that denied the vote on the basis of race, the Court held, § 2 authorized Congress to go beyond proscribing cer- tain discriminatory statutes and practices to “enforcing” the guar- antee by any rational means at its disposal. The standard was the same as that used under the “necessary and proper” clause support- ing other congressional legislation. Congress was therefore justified in deciding that certain areas of the nation were the primary loca- tions of voting discrimination and in directing its remedial legisla- tion to those areas. Congress chose a rational formula based on the existence of voting tests that 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 55 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. 56 380 U.S. 128 (1965). 57 380 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). 58 383 U.S. 301 (1966). 2230 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE unlike § 5, applies nationwide.67 As enacted in 1965, § 2 largely tracked the language of the Fifteenth Amendment itself. In City of Mobile v. Bolden,68 a majority of the Court agreed that the Fifteenth Amend- ment and § 2 of the Act were coextensive, but the Justices did not agree on the meaning to be ascribed to the statute. A plurality be- lieved that, because the constitutional provision reached only pur- poseful discrimination, § 2 was similarly limited. A major purpose of Congress in 1982 had been to set aside this possible interpreta- tion 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.69 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 consti- tutional question will not arise.70 The decision in Shelby County v. Holder 71 resulted in a signifi- cant retrenchment of the application of the Voting Rights Act. In Shelby County, the Court overturned § 4 of the act, which specifies the formula by which it is determined which states or electoral dis- tricts are required to submit electoral changes for preclearance. In 2006, Congress had reauthorized the Act for twenty-five years, pro- viding that the preclearance requirement extended to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972.72 In 2009, the Court signaled in dicta that this formula no longer served as an accurate characterization of vot- ing conditions in the jurisdictions specified.73 67 Private parties may bring suit to challenge electoral practices under § 2. It provided, before the 1982 amendments, that “[n]o voting qualification or prerequi- site 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.” 68 446 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). 69 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 mul- timember districting. 70 See Rogers v. Lodge, 458 U.S. 613 (1982). 71 570 U.S. ___, No. 12–96, slip op. (2013). 72 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, Pub. L. 109–246,120 Stat. 577. 73 Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 203– 204 (2009). 2233AMENDMENT 15—RIGHT OF CITIZENS TO VOTE In Shelby County, the Court characterized § 5 preclearance as an “extraordinary departure from the traditional course of rela- tions between the States and the Federal Government” and as “ex- traordinary legislation otherwise unfamiliar to our federal system.” This led the Court to find the formula in § 4 violative of the “funda- mental principle of equal sovereignty” among states.74 While the sig- nificance of a principle of equal sovereignty had been considered and rejected by the Court in a previous challenge to the act,75 the Court in Shelby County held that the principle “remains highly pertinent in assessing subsequent disparate treatment of States.” 76 The Court went on to find that there was insufficient justification for the dis- parate treatment, as “[v]oter turnout and registration rates [in those jurisdictions] now approach parity. Blatantly discriminatory eva- sions of federal decrees are rare. And minority candidates hold of- fice at unprecedented levels.” 77 The dissent, referencing the lenient standard for congressional enforcement legislation established under Katzenbach, closely exam- ined the legislative record developed by Congress in the 2006 reau- thorization of the act. The dissent noted the high number of changes to voting practices which had been submitted by covered jurisdic- tions under the Voting Rights Act and which had not received pre- clearance and the high number of successful voting rights chal- lenges in those jurisdictions under § 2 of the act.78 The dissent also suggested that, regardless of improved minority voting participa- tion, “second-generation barriers” which diluted minority voting power were still prevalent in the covered jurisdictions. These barriers in- cluded redrawing legislative districts to segregate the races, adopt- ing at-large voting to limit the effect of minority’s votes, and dis- criminatory annexation, such as incorporating majority white areas into city limits to decrease the effect of black voting.79 74 570 U.S. ___, No. 12–96, slip op. at 10 (quoting Northwest Austin, 557 U.S. at 203). 75 See South Carolina v. Katzenbach, 383 U.S. at 328–329. Considering the dis- parate treatment of states under the § 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 con- trary in the enabling act providng 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 Katzenbach Court as concerning only the admission of new states, and not remedies for actions occur- ing subsequent to that event. 76 570 U.S. ___, No. 12–96, slip op. at 10 (quoting Northwest Austin, 557 U.S. at 203). 77 570 U.S. ___, No. 12–96, slip op. at 13–14 (quoting Northwest Austin, 557 U.S. at 202). 78 570 U.S. ___, No. 12–96, slip op. at 13–17,19–20. 79 570 U.S. ___, No. 12–96, slip op. at 5–6. 2234 AMENDMENT 15—RIGHT OF CITIZENS TO VOTE