The 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—

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

—Earl M. Maltz

Introduction

In April 1866, the Joint Committee on Reconstruction approved a version of the Fourteenth Amendment that would have explicitly embraced the principle of race-blind suffrage.¹ Because many northerners continued to oppose black suffrage in principle, fears of a political backlash led the committee to abandon the issue.² Nevertheless, most Republicans quickly became convinced that additional action was needed. Thus, in 1869, Congress passed the Fifteenth Amendment, which banned all racial discrimination in voting rights. The amendment also included a clause vesting Congress with the power to enforce this prohibition. The amendment was ratified in 1870 and became the last of the Constitution’s three Reconstruction Amendments. Subsequently, the enforcement clause provided the authority for passage of the Voting Rights Act of 1965, which is now the primary federal mechanism for preventing discrimination against voters on the basis of race.

Drafting of the Fifteenth Amendment

Republicans had a variety of reasons for supporting the Fifteenth Amendment. First, most Republicans believed that allowing blacks to vote was the right thing to do in and of itself. In addition, after the Reconstruction Act of 1867 forced black suffrage on the former Confederate states, Republicans were charged with hypocrisy for not imposing the same requirement on northern states.³ Moreover, despite passage of the Reconstruction Act, many Republicans worried that black suffrage in the South would be insecure without a constitutional amendment.⁴ Some Republicans also believed that enfranchising blacks in the Union states would provide critical support for Republican candidates in some northern states.⁵

By 1869, these considerations had convinced virtually all mainstream congressional Republicans that a constitutional amendment was desirable. At the same time, however, Republicans were deeply divided over the question of precisely what language should be adopted. A proposal adopted by the House of Representatives provided simply that “the right of any citizen of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of slavery.” It also would have armed Congress with the power to enforce this prohibition.⁶ However, a number of prominent Republicans complained that this narrow language would essentially “legalise the disfranchisement of the vast body of the loyal race of the south.” The states would be left free to adopt qualifications that, although neutral on their face, would in practice be impossible for most freed slaves to satisfy.⁷

Seeking to address these and other concerns, the Senate passed a measure that would have applied to both the right to hold elective office and the right to vote. This proposal would have banned discrimination not only on the basis of race or color, but also because of nativity, property, education, or religious belief and, like the House version, included an enforcement provision.⁸

Given this conflict between the House and the Senate, a conference committee would normally have been convened and charged with the task of crafting a measure on which both houses could agree. However, the Senate did not vote to enter into conference. Instead, the entire drafting process began anew. The House produced a draft that in many ways was similar to the original Senate version.⁹ The Senate responded with a simple prohibition on racial discrimination with respect to the rights to vote and to hold office.¹⁰

At that point, a conference committee was convened. The committee produced the final version of the Fifteenth Amendment.¹¹ This formulation prohibited racial discrimination with respect to voting rights and, like the Thirteenth and Fourteenth Amendments, included a section that vested Congress with the power to enforce this prohibition by “appropriate legislation.” (See Essay Nos. 191 and 200.) However, the committee language made no reference to the right to hold office.

Many Republicans would have preferred more sweeping language, but most reluctantly accepted the compromise. Senator Henry Wilson of Massachusetts concluded that the Republicans should take “what [they] could get.”¹² In March 1869, the committee’s language received the necessary majorities in both the House and the Senate.¹³

Ratification of the Fifteenth Amendment

The ratification process for the Fifteenth Amendment was brief but intense. During the ratification debates, both sides reiterated the points that had been made during the congressional debates.¹⁴ In California and Oregon, opponents derailed ratification efforts by arguing that the amendment would enfranchise Chinese immigrants.¹⁵ In addition, some members of the women’s suffrage movement opposed the amendment because it did not grant women the franchise.¹⁶

At the time, there were still three ex-Confederate states that were not yet represented in Congress: Virginia, Mississippi, and Texas. Congressional Republicans required the legislatures of those three states to ratify the amendment in order to regain their status as equal partners in the Union.¹⁷ The three state legislatures promptly complied with this condition and pushed the Fifteenth Amendment over the threshold. On March 30, 1870, the Secretary of State declared that the Fifteenth Amendment had been ratified by the requisite three-fourths of the state legislatures.

Voting Rights After the Fifteenth Amendment

Even before the Fifteenth Amendment was ratified, the Reconstruction Acts had established a regime that greatly enhanced the political power of African Americans in a number of the former Confederate states. For example, in 1870, Hiram Revels became the first black person to serve in either house of Congress after being selected to serve in the Senate by the state legislature of Mississippi.¹⁸ At the same time, however, these gains were already being threatened. Organizations such as the Ku Klux Klan waged a campaign of terror designed to intimidate black voters and allow white supremacists to regain control of the electoral process.

Immediately after adoption of the Fifteenth Amendment, Republicans in Congress relied on its Section 2 authority to protect the gains that had been made by the former slaves. However, by the early 1890s, federal resolve had faded. During that same period, white supremacists regained control of the state governments throughout the South. Those governments adopted a variety of measures known as Jim Crow laws that were designed to prevent black people from regaining influence in the electoral process.¹⁹

Judicial Precedent: Section 1

The U.S. Supreme Court was called upon to decide the constitutionality of Jim Crow laws that began to disenfranchise the freedmen. Williams v. Mississippi (1898) considered the constitutionality of a literacy test. The Court refused to consider the motives of the lawmakers who had adopted the facially neutral test and rejected the constitutional challenge.²⁰ However, Guinn v. United States (1915) declared unconstitutional a grandfather clause that essentially allowed illiterate white people to vote while excluding potential black voters. The Court found that the only plausible explanation for this clause was an intent to discriminate on the basis of race.²¹

More recently, the Court has invoked both the Fourteenth and Fifteenth Amendments in a variety of voting rights cases. Cases declared unconstitutional facially neutral restrictions on voting rights where the legislative history revealed an intention to exclude or hinder African Americans.²² The Court also blocked gerrymanders that were clearly designed to disenfranchise black voters.²³ In addition, the Court has held that race may be considered in the redistricting process only as long as racial considerations do not predominate and there is no effort to dilute the voting strength of minorities.²⁴

Judicial Precedent: Section 2

The Court’s view of the scope of the enforcement authority granted to Congress by Section 2 of the Fifteenth Amendment has also evolved over time. Ex Parte Yarbrough (1884) suggested that Congress could rely on its Section 2 powers to regulate the actions of private actors, such as the Ku Klux Klan, that sought to limit the ability of racial minorities to participate in the political process.²⁵ Two decades later, the Court reversed course. James v. Bowman (1903) held that the Fifteenth Amendment did not allow Congress to regulate purely private activity.²⁶

However, in subsequent cases the Court avoided the problem by expansively defining some nongovernmental activities as state action for purposes of the Fifteenth Amendment, particularly in cases involving challenges to the constitutionality of white primaries and the exclusion of people of color from a political caucus that had an outsized influence on the selection of government officials.²⁷

The Voting Rights Act

Congress passed the Voting Rights Act of 1965 after committee hearings produced extensive evidence that literacy tests and other devices had been used to systematically deny people of color the right to vote in several Southern states. The statute included provisions of general applicability, and imposed other restrictions on those states that both used literacy tests and similar devices and had either low voter registration in 1964 or low voter turnout in the presidential election that was held in that year. The Voting Rights Act was also construed to subject the electoral apparatus in those states to federal supervision by requiring all changes in existing procedures to be precleared by federal officials. In South Carolina v. Katzenbach (1966), the Supreme Court rejected a constitutional challenge to these and other parts of the Voting Rights Act.²⁸ The Court found that the scope of the power granted to Congress by Section 2 was analogous to that granted to Congress more generally by the Necessary and Proper Clause.

By its terms, the original preclearance requirement under the Voting Rights Act of 1965 would have expired in five years. However, the duration of the requirement was increased on a number of occasions. In 2006, the duration was extended for an additional twenty-five years. But at the same time, the 2006 statute did not change the coverage formula for those states that were made subject to the requirement by virtue of conditions that had existed in 1964. In Shelby County v. Holder (2013), the Court held that, in the absence of continuing widespread racial discrimination in those states, Congress could not rely on the original coverage formula to apply the preclearance requirement to some states while not imposing the same requirement on other states. In the decade since Shelby County, Congress has not updated its coverage formula or placed any states or local governments under federal supervision.

Open Questions

• The Voting Rights Act outlaws any restriction “which results in a denial or abridgement of the right . . . to vote on account of race or color.”²⁹ City of Rome v. United States (1980) held that Section 2 of the Fifteenth Amendment empowers Congress to outlaw restrictions on voting that have a discriminatory effect even absent proof that such restrictions were intended to limit the political power of racial minorities.³⁰ However, City of Boerne v. Flores (1997) narrowly read Congress’s power under Section 5 of the Fourteenth Amendment.³¹ Did City of Boerne undermine City of Rome? Does Congress have the authority to restrict state power based on a discriminatory effect?³²
• Would Congress have the authority to impose a preclearance requirement on all states without exception?

1. Benjamin B. Kendrick, The Journal of the Joint Committee on Reconstruction 99 (1914). ↩︎
2. Id. at 101. ↩︎
3. Cong. Globe, 40th Cong., 3d Sess. 1628 (1869). ↩︎
4. The Platform and the Nominations, 6 The Nation 425 (May 28, 1868). ↩︎
5. Cong. Globe, 40th Cong. 1st Sess. 561 (1869). ↩︎
6. Id. at 745. ↩︎
7. Id. at app. 97. ↩︎
8. Id. at 1044. ↩︎
9. Id. at 1428. ↩︎
10. Id. at 1318. ↩︎
11. Id. at 1563–64. ↩︎
12. Id. at 1626. ↩︎
13. Id. at 1563–64, 1641. ↩︎
14. William Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 79–165 (1965). ↩︎
15. Id. at 153–56. ↩︎
16. Id. at 118. ↩︎
17. Id. ↩︎
18. U.S. Senate Historical Office, Hiram Revels: First African American Senator (Feb. 25, 2020), https://perma.cc/N3UJ-LN7Z. ↩︎
19. Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 chs. 2–6 (1997). ↩︎
20. 170 U.S. 213 (1898). ↩︎
21. 238 U.S. 347 (1915). ↩︎
22. Rogers v. Lodge, 458 U.S. 613 (1982); Hunter v. Underwood, 471 U.S. 222 (1985). ↩︎
23. Gomillion v. Lightfoot, 364 U.S. 339 (1960). ↩︎
24. Bush v. Vera, 517 U.S. 952 (1996). ↩︎
25. 110 U.S. 651 (1884). ↩︎
26. 190 U.S. 127 (1903). ↩︎
27. Smith v. Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 461 (1953). ↩︎
28. 383 U.S. 301 (1966). ↩︎
29. 52 U.S.C. § 10301. ↩︎
30. 446 U.S. 156 (1980). ↩︎
31. 521 U.S. 507 (1997). ↩︎
32. Luis Fuentes-Rower, The Future of Section Two of the Voting Rights Act in the Hands of a Conservative Court, 5 Duke J. Const. L. & Pub. Pol’y 125 (2010). ↩︎