Fifteenth Amendment--Rights of Citizens to Vote

[[Page 1937]]


                           FIFTEENTH AMENDMENT

                               __________

                        RIGHT OF CITIZENS TO VOTE

                               __________


                                CONTENTS

                                                                    Page
        Abolition of Suffrage Qualifications on Basis of Race.....  1939
        Adoption and Judicial Enforcement.........................  1939
                Adoption..........................................  1939
                The Judicial View of the Amendment................  1940
                Grandfather Clauses...............................  1940
                The White Primary.................................  1941
                Literacy Tests....................................  1942
                Racial Gerrymandering.............................  1942
        Congressional Enforcement.................................  1943
                State Action......................................  1944
                Federal Remedial Legislation......................  1946


[[Page 1939]]


                           FIFTEENTH AMENDMENT

                        RIGHT OF CITIZENS TO VOTE

                               __________

  Section 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
  Section 2. The Congress shall have power to enforce this article by
appropriate legislation.

          ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

      Adoption and Judicial Enforcement

        Adoption.--The final decision of Congress not to include
anything relating to the right to vote in the Fourteenth Amendment,
aside from the provisions of Sec. 2,\1\ left the issue of African
American suffrage solely with the States, and Northern States were
generally as loath as Southern to grant the ballot to African Americans,
both the newly-freed and those who had never been slaves.\2\ But in the
second session of the 39th Congress, the right to vote was extended to
African Americans by statute in the District of Columbia and the
territories, and the seceded States as a condition of readmission had to
guarantee African American suffrage.\3\ Following the election of
President Grant, the ``lame duck'' third session of the Fortieth
Congress sent the proposed Fifteenth Amendment to the States for
ratification. The struggle was intense because Congress was divided into
roughly three factions: those who opposed any federal constitutional
guarantee of African American suffrage, those who wanted to go beyond a
limited guarantee and enact universal male suffrage, including abolition
of all educational and property-holding tests, and those who wanted or
who were willing to settle for an amendment merely proscribing racial
qualifications in deter

[[Page 1940]]
mining who could vote under any other standards the States wished to
have.\4\ The later group ultimately prevailed.

        \1\Supra, pp. 1926-27. Of course, the equal protection clause
has been extensively utilized by the Court to protect the right to vote.
Supra, pp. 1892-1911.
        \2\W. Gillette, The Right to Vote: Politics and the Passage of
the Fifteenth Amendment 25-28 (1965).
        \3\Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of
Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat.
391 (1867) (admission of Nebraska to statehood upon condition of
guaranteeing against racial qualifications in voting); ch. 153, 14 Stat.
428 (1867) (First Reconstruction Act).
        \4\Gillette, supra n., at 46-78. The congressional debate is
conveniently collected in 1 B. Schwartz, Statutory History of the United
States--Civil Rights 372 (1971).
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        The Judicial View of the Amendment.--In its initial appraisals
of this Amendment, the Supreme Court appeared disposed to emphasize only
its purely negative aspects. ``The Fifteenth Amendment,'' it announced,
did ``not confer the right . . . [to vote] upon any one,'' but merely
``invested the citizens of the United States with a new constitutional
right which is . . . exemption from discrimination in the exercise of
the elective franchise on account of race, color, or previous condition
of servitude.''\5\ But in subsequent cases, the Court, conceding ``that
this article'' has originally been construed as giving ``no affirmative
right to the colored man to vote'' and as having been ``designed
primarily to prevent discrimination against him,'' professed to be able
``to see that under some circumstances it may operate as the immediate
source of a right to vote. In all cases where the former slave-holding
States had not removed from their Constitutions the words `white man' as
a qualification for voting, this provision did, in effect, confer on him
the right to vote, because . . . it annulled the discriminating word
white, and this left him in the enjoyment of the same right as white
persons. And such would be the effect of any future constitutional
provision of a State which would give the right of voting exclusively to
white people. . . .''\6\

        \5\United States v. Reese, 92 U.S. 214, 217-18 (1876); United
States v. Cruikshank, 92 U.S. 542, 566 (1876).
        \6\Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United
States 238 U.S. 347, 363 (1915). A state constitutional provision
limiting the right of suffrage to whites was automatically nullified by
ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370
(1881).
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        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 several
devices which have been voided, one of the first to be held
unconstitutional was the ``grandfather clause.'' Beginning in 1895,
several States enacted temporary laws whereby persons who had been
voters, or descendants 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

[[Page 1941]]
vote on grounds of illiteracy or through discriminatory administration
of literacy tests, while illiterate whites were permited to register
without taking any tests. With the achievement of the intended result,
most States permitted 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
perpetuating ``the very conditions which the [Fifteenth] Amendment was
intended to destroy.''\7\

        \7\Guinn v. United States, 238 U.S. 347 (1915).
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        The Court did not experience any difficulty in voiding a
subsequent Oklahoma statute of 1916 which provided that all persons,
except 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 additional
brief period to register, should be perpetually disenfranchised. 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
effectively handicap exercise of the franchise by the colored race
although the abstract right to vote may remain unrestricted as to
race.''\8\ The impermissible effect of the statute, said the Court, was
automatically 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.

        \8\Lane v. Wilson, 307 U.S. 268, 275 (1939).
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        The White Primary.--Indecision was displayed by the Court,
however, when it was called upon to deal with the exclusion of African
Americans from participation in primary elections.\9\ Prior to its
becoming convinced that primary contests were in fact elections to which
federal constitutional guarantees applied,\10\ the Court had relied upon
the equal protection clause to strike down the Texas White Primary
Law\11\ and a subsequent Texas statute which contributed to a like
exclusion by limiting voting in primary elections to members of state
political parties as determined by the central committees thereof.\12\
When exclusion of African Americans was thereafter perpetuated by
political parties not acting in obedience to any statutory command, this
discrimination was for a time

[[Page 1942]]
viewed as not constituting state action and therefore as not prohibited
by either the Fourteenth or the Fifteenth Amendments.\13\ 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
primary election is a state agency, and hence it may not under the
Fifteenth Amendment exclude African Americans from such elections.\14\
An effort by South Carolina to escape the effects of this ruling by
repealing all statutory provisions regulating primary elections and
political organizations conducting them was nullified by a lower federal
court with no doctrinal difficulty,\15\ but the Supreme Court, although
nearly unanimous on the result, was unable to come to a majority
agreement with regard to the exclusion of African Americans by the
Jaybird Association, a county-wide organization which, independently of
state laws and the use of state election machinery or funds, nearly
monopolized access to Democratic nomination for local offices. The
exclusionary policy was held unconstitutional but there was no opinion
of the Court.\16\

        \9\See also supra, p. 120.
        \10\United States v. Classic, 313 U.S. 299 (1941); Smith v.
Allwright, 321 U.S. 649 (1944).
        \11\Nixon v. Herndon, 273 U.S. 536 (1927).
        \12\Nixon v. Condon, 286 U.S. 73 (1932).
        \13\Grovey v. Townsend, 295 U.S. 45 (1935).
        \14\Smith v. Allwright, 321 U.S. 649 (1944).
        \15\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).
        \16\Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the
opinions, see infra, p. 1945.
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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\

        \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.
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        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 basis\19\
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

[[Page 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\

        \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
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).
        \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.
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      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

[[Page 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.

        \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 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. Sec. Sec. 241-42,
and 42 U.S.C. Sec. Sec. 1971(a), 1983, and 1985(3).
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        State Action.--Like Sec. 1 of the Fourteenth, Sec. 1 of the
Fifteenth Amendment prohibits official denial of the rights therein
guaranteed, giving rise to the ``state action'' doctrine.\30\
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.\31\ But in James v. Bowman\32\ the Court
held that legislation based on the Fifteenth Amendment which attempted
to prohibit private as well as official interference with the right to
vote on racial grounds was unconstitutional, and that interpretation was
not questioned until 1941.\33\ But the Court's interpretation of the
``state action'' requirement in cases brought under Sec. 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

[[Page 1945]]
Congress is not limited to legislation directed to official
discrimination.\34\

        \30\Supra, pp. 1786-1802. ``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).
        \31\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.
        \32\190 U.S. 127 (1903), holding unconstitutional Rev. Stat.
Sec. 5507, which was Sec. 5 of the Enforcement Act of 1870, ch. 114, 16
Stat. 140.
        \33\E.g., United States v. Classic, 313 U.S. 299, 315 (1941);
United States v. Williams, 341 U.S. 70, 77 (1951).
        \34\Supra, pp. 1933-36.
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        Thus, in Smith v. Allwright,\35\ 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.\36\ Then, in Terry v. Adams,\37\ 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 no rationale was
agreed upon by a majority of the Justices. Four of them thought the case
simply indistinguishable from Smith v. Allwright and thus did not deal
with the central issue.\38\ Justice Frankfurter thought the
participation of local elected officials in the processes of the
organization was sufficient to implicate state action.\39\ 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,\40\ 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.\41\ The 1957 Civil Rights Act\42\
included a provision

[[Page 1946]]
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
Act\43\ 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.

        \35\321 U.S. 649 (1944).
        \36\``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.'' Id. at 664.
        \37\345 U.S. 461 (1953).
        \38\Id. at 477 (Justices Clark, Reed, and Jackson, and Chief
Justice Vinson).
        \39\Id. at 470.
        \40\Id. at 462, 468-69, 470 (Justices Black, Douglas, and
Burton).
        \41\Id. at 466-68. Justice Minton understood Justice Black's
opinion to do away with the state action requirement. Id. at 485
(dissenting).
        \42\71 Stat. 637, 42 U.S.C. Sec. Sec. 1971(b), 1971(c). In a
suit to enjoin state officials from violating 42 U.S.C. Sec. 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).
        \43\Pub. L. No. 89-110, Sec. Sec. 11-12, 79 Stat. 443, 42 U.S.C.
Sec. Sec. 1973i, 1973j.
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        Federal Remedial Legislation.--The history of federal remedial
legislation is of modern vintage.\44\ The 1957 Civil Rights Act\45\
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 Act\46\ 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

[[Page 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.

        \44\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.
        \45\Pub. L. No. 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).
        \46\Pub. L. No. 86-449, 74 Stat. 86.
        \47\Pub. L. No. 88-352, 78 Stat. 241.
        \48\Pub. L. No. 89-110, 79 Stat. 437, 42 U.S.C. Sec. 1973 et
seq.
        \49\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 Sec. 5, 42 U.S.C. Sec. 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 Board 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).
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        These laws the Supreme Court upheld and expansively applied. In
United States v. Mississippi\50\ 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.

        \50\380 U.S. 128 (1965).
        \51\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).
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        But it was in upholding the constitutionality of the 1965 Act
that the Court sketched in the outlines of a broad power in Con

[[Page 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\

        \52\South Carolina v. Katzenbach, 383 U.S. 301 (1966).
        \53\Justice Black dissented from that portion of the decision
which 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.
        \54\Gaston County v. United States, 395 U.S. 285 (1969).
        \55\84 Stat. 315, 42 U.S.C. Sec. 1973aa.
        \56\Oregon v. Mitchell, 400 U.S. 112, 131-34, 144-47, 216-17,
231-36, 282-84 (1970).
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        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

[[Page 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

[[Page 1950]]
were addressed to revitalizing Sec. 2 of the Act, which, unlike
Sec. Sec. 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\

        \57\446 U.S. 156 (1980).
        \58\Cf. City of Mobile v. Bolden, 446 U.S. 55 (1980).
        \59\City of Rome v. United States, 446 U.S. 156, 177 (1980).
Justices Powell, Rehnquist, and Stewart dissented. Id. at 193, 206.
        \60\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,'' 207, 42 U.S.C. Sec. 1973 1f(c)(3), in which certain
statistical tests are met and requiring election materials be provided
in the language(s) of the group(s), and enlarged to require bilingual
elections 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. The 1982
amendments, Pub. L. 97-205, 96 Stat. 131, in addition to the Sec. 2
revision, alter after August 5, 1984, the provisions by which a covered
jurisdiction may take itself from under the Act by proving to the
special court in the District of Columbia that it 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. Moreover, the amendments
change 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 only if the change would lead to a
retrogression in the position of racial minorities; even if the change
was only a little ameliorative of existing discrimination, 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 Sec. 2 results test to
preclearance procedures. S. Rep. No. 417, 97th Congress, 2d Sess. 12
(1982); H.R. Rep. No. 227, 97th Congress, 1st Sess. 28 (1981).
        \61\Private parties may bring suit to challenge electoral
practices under Sec. 2. It provided, before the 1982 amendments, 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.''
        \62\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).
        \63\In Sec. 3 of the 1982 amendments, Sec. 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 Sec. 2 would be
determined. 96 Stat. 134, amending 42 U.S. Sec. 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.
        \64\See Rogers v. Lodge, 458 U.S. 613 (1982).