Amdt15.S1.1.1.1 Right to Vote Clause: Doctrine and Practice

Fifteenth Amendment, 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–

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.1 But in subsequent cases, the Court, conceding that this article has originally been construed as giving no affirmative right . . . to vote and as having been designed primarily to prevent discrimination, 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. . . .2

Although the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote, the Amendment is cast in fundamental terms, terms transcending the particular controversy, and grants protection to all persons, not just members of a particular race.3 Moreover, the Court has construed race broadly to comprehend classifications based on ancestry as well as those based on race.4 Ancestry can be a proxy for race, the Court has explained, finding such a proxy in Hawaii’s limitation of the right to vote in a statewide election for an office responsible for administering a trust for the benefit of persons who can trace their ancestry to Hawaiian inhabitants of 1778.5

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 that have been held unconstitutional, one of the first 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, black citizens were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate white citizens were permitted 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.6

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 that 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.7 The impermissible effect of the statute, the Court said, 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 black persons, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

The White Primary

The Court displayed indecision, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied,8 the Court had relied upon the Equal Protection Clause to strike down the Texas White Primary Law9 as well as a later Texas statute that contributed to a similar exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees of such parties.10 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 viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments.11 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 consequently may not under the Fifteenth Amendment exclude African Americans from such elections.12 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary electionvos and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty,13 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 countywide organization that, 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.14

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 to deny equal protection.15 But an Alabama constitutional amendment, the legislative history of which disclosed that both its object and its intended administration were to disenfranchise black citizens, was held to violate the Fifteenth Amendment.16

Racial Gerrymandering

The Court’s series of decisions interpreting the Equal Protection Clause as requiring the apportionment and districting of state legislatures solely on the basis of population17 had its beginning in Gomillion v. Lightfoot,18 in which the Court found a violation of the Fifteenth Amendment in the redrawing of a municipal boundary line into a 28-sided figure that excluded from the city all but four or five of 400 black citizens but no white citizens, and that 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,19 and, in City of Mobile v. Bolden,20 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases,21 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.22

Footnotes

  1.  Jump to essay-1United States v. Reese, 92 U.S. 214, 217–18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).
  2.  Jump to essay-2Ex 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 free white male citizens was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).
  3.  Jump to essay-3Rice v. Cayetano, 528 U.S. 495 (2000).
  4.  Jump to essay-4Guinn v. United States, 238 U.S. 347 (1915) (invalidating Oklahoma exception to literacy requirement for any lineal descendants of persons entitled to vote in 1866).
  5.  Jump to essay-5Rice v. Cayetano, 528 U.S. 495, 514 (2000).
  6.  Jump to essay-6Guinn v. United States, 238 U.S. 347 (1915).
  7.  Jump to essay-7Lane v. Wilson, 307 U.S. 268, 275 (1939).
  8.  Jump to essay-8United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).
  9.  Jump to essay-9Nixon v. Herndon, 273 U.S. 536 (1927).
  10.  Jump to essay-10Nixon v. Condon, 286 U.S. 73 (1932).
  11.  Jump to essay-11Grovey v. Townsend, 295 U.S. 45 (1935).
  12.  Jump to essay-12Smith v. Allwright, 321 U.S. 649 (1944).
  13.  Jump to essay-13Rice 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).
  14.  Jump to essay-14Terry v. Adams, 345 U.S. 461 (1953). For analysis of the opinions, see State Action, supra.
  15.  Jump to essay-15Williams v. Mississippi, 170 U.S. 213 (1898); Cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959).
  16.  Jump to essay-16Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d, 336 U.S. 933 (1949).
  17.  Jump to essay-17See Apportionment and Districting, supra.
  18.  Jump to essay-18364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).
  19.  Jump to essay-19E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).
  20.  Jump to essay-20446 U.S. 55 (1980).
  21.  Jump to essay-21On the issue of motivation versus impact under the equal protection clause, see discussion of Testing Facially Neutral Classifications Which Impact on Minorities 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).
  22.  Jump to essay-22446 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 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).