Fifteenth Amendment

  • February 7, 2013

    by Jeremy Leaming

    The opponents of the landmark Voting Rights Act have argued for years now that it is outdated – racial discrimination in voting is not really a problem, a thing of the past – and an unconstitutional infringement on state sovereignty.

    And the opponents have come close to convincing the U.S. Supreme Court to agree with them. In 2009 the conservative wing of the Supreme Court in Northwest Austin Municipal Utility District Number One v. Holder did not gut the VRA, but strongly hinted it may be inclined to weaken or ditch the VRA’s major enforcement provision, Section 5.

    Now opponents, this time from a largely white county in Alabama, are back gunning to greatly hinder if not scuttle the VRA, specifically by weakening or scrapping Section 5. That section requires certain states and localities with long histories of discriminating against voters because of race to obtain “preclearance” of proposed changes to their voting procedures from a federal court or the Department of Justice. During the 2012 elections the Department of Justice employed Section 5 to successfully shut down actions aimed at suppressing the votes of minorities. On Feb. 27, the Supreme Court will hear oral argument in Shelby County v. Holder, offering the court another chance to strike or greatly weaken Section 5. (See ACS’s Voting Rights Resources page for more detail about the VRA and the Shelby County case.)

    The NAACP Legal Defense & Educational Fund, representing some Alabama voters, argue that in 2006 Congress justifiably reauthorized Section 5 for another 25 years, creating a voluminous record that revealed, among other things, that racial discrimination in voting is no relic. A bipartisan group of House Judiciary lawmakers who helped advance the 2006 reauthorization has lodged an amicus or friend-of-the-court brief with the Supreme Court urging it to show deference to the legislative branch and keep Section 5 viable.

    As The Atlantic’s Andrew Cohen notes, there are a “remarkable” number of amicus briefs for the justices to wade through, and he highlights several of them, including one filed by the Brennan Center for Justice.

    The Brennan Center, long a defender of the VRA, also lodged a brief in the 2009 case. The group’s Shelby County brief provides the backdrop for Congress’s work to enfranchise formerly enslaved black Americans, the tenuous nature of protecting the right to vote for minorities, and the continued need for Congress to use appropriate tools, like preclearance of the VRA, to ensure that the right to vote is not trampled by powerful and corrupt interests bent on keeping African Americans and other minorities away from the polls. A resounding message to the justices, from the Brennan Center’s brief, is that great strides forward are often met with great resistance and that those accomplishments advancing equality can be rolled back.   


  • March 23, 2012

    by Nicole Flatow

    The country lost a civil rights giant, with the passing of president and director-counsel of the NAACP Legal Defense and Education Fund, John A. Payton. He died suddenly on Thursday at Johns Hopkins University Hospital after a brief illness, The Root reports.

    Payton led LDF in several major Supreme Court victories, including Northwest Austin Municipal Utility District v. Holder, which rejected a challenge to the constitutionality of a core provision of the Voting Rights Act of 1965, and Lewis v. City of Chicago, a major employment discrimination victory, according to a statement from LDF.

    The statement adds:

    Widely considered one of the country's most skilled members of the Supreme Court bar, John Payton's enduring legacy will be his commitment to a principle articulated by LDF's founder, Charles Hamilton Houston. "What I am more concerned about," Houston said, "is that the Negro shall not be content simply with demanding an equal share in the existing system. It seems to me that his historical challenge is to make sure that the system [that] shall survive in the United States of America shall be a system which guarantees justice and freedom for everyone."

    LDF's work will go on, in just the way that John would have wanted.

    President Obama said today in a statement:

    Michelle and I were saddened to hear about the passing of our dear friend John Payton. As president and director-counsel of the NAACP Legal Defense and Education Fund, John led the organization's involvement in five Supreme Court cases.

    A true champion of equality, he helped protect civil rights in the classroom and at the ballot box. The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms.

    Payton was a voice for the civil rights community, and a leading constitutional thinker. During a 2009 American Constitution Society event at the National Press Club on “The Road from Lincoln to Obama,” Payton discussed the importance of shedding our racist history as we move forward with our constitutional jurisprudence.

    “I would say Reconstruction didn’t fail. It was destroyed,” he said.

    He continued:

  • September 28, 2011
    Guest Post

    By Mark Posner, Senior Counsel, Lawyers’ Committee for Civil Rights Under Law

    Recently, Judge John Bates of the U.S. District Court in Washington, DC, ruled that a core provision of the Voting Rights Act of 1965 – the Section 5 “preclearance” requirement – remains a constitutional exercise of Congress’ anti-discrimination authority under the Fourteenth and Fifteenth Amendments. This was a major victory in our nation’s ongoing efforts to “banish the blight of racial discrimination in voting.”

    This challenge to the constitutionality of Section 5 was brought by Shelby County, Ala., a largely white suburb of Birmingham. In rejecting the County’s arguments, Judge Bates agreed with an earlier unanimous decision, by a three-judge panel of the D.C. District Court (Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221 (D.D.C. 2008)), which likewise upheld the constitutionality of Section 5, in a case brought by a local Texas utility district. That earlier decision, however, was vacated in 2009 when the Supreme Court decided that the utility district could pursue a statutory “bailout” from Section 5 coverage. Unlike the Texas utility district, Shelby County freely admitted that it has a recent history of voting discrimination that disqualified it from “bailing out.”

    Section 5 requires states and localities with a history of discrimination in voting – mostly in the South and Southwest – to obtain federal preclearance before implementing any changes in a voting “standard, practice, or procedure.” Preclearance is obtained by demonstrating, either to the Attorney General or the D.C. District Court, that the change does not have a discriminatory purpose or effect.

    Congress enacted the preclearance procedure in 1965 after it found that certain jurisdictions with a history of voting discrimination often were devising new discriminatory voting practices when old ones were struck down by the federal courts. Thereafter, Congress reauthorized Section 5 four times, in 1970, 1975, 1982, and, most recently, in 2006, each time finding that voting discrimination in the covered jurisdictions had remained high. Section 5 has prevented hundreds of discriminatory voting changes from going into effect, and has deterred countless others from ever being enacted.

    In the Shelby County case, Judge Bates confronted the fundamental question of what legal standard should be used to determine whether, as Shelby County claimed, Congress had exceeded its authority in reauthorizing Section 5 for 25 years in 2006. Shelby County invoked recent Supreme Court holdings that, at least as to certain Fourteenth Amendment legislation, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”  In so doing, the County proposed a standard that would effectively preclude Congress from renewing effective antidiscrimination laws. The United States and defendant-intervenors (represented by civil rights organizations and law firms, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, and the NAACP Legal Defense Fund) argued that, in its prior rulings in 1966 and 1980 upholding Section 5, the Supreme Court held that Congress may “use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” 

  • September 16, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde Fran├žois, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.

    Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.  

    The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.

    In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional. 

  • August 25, 2011
    Guest Post

    This post is part of an ACSblog symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. The author, Daniel Tokaji, is a Professor of Law at the Ohio State University Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors.

    Martin Luther King, Jr. wrote that “the arc of the moral universe is long, but it bends toward justice.” But as he understood better than anyone, progress on civil and political rights is neither inevitable nor constant.  It takes hard work, courage, and perseverance.  Otherwise, injustices will fester and grow. The result will be stasis or, even worse, backsliding.

    So it was with the right to vote, which African Americans exercised for a brief period after the Civil War only to see it taken away until the 1960s. And so it is now, as many state legislatures move to enact laws that would impose new burdens on this most fundamental right. As we celebrate Dr. King’s legacy, we must also remember that the fight for civil and political rights continues. We cannot simply hope that the arc of justice will bend on its own. It is our responsibility to make it happen.

    If the history of voting rights teaches us anything, it is that articulation of a right is one thing, realization of that right quite another – and far more difficult – thing. The Fifteenth Amendment to the U.S. Constitution, ratified in 1870, states in no uncertain terms that “[t]he right of citizens of the United states to vote shall not be denied or abridged ... on account of race, color, or previous condition of servitude.” For a time, this promise was honored. African Americans voted in large numbers throughout the country, including in the states of the former Confederacy. Many African Americans also served in elective office during this period, with over 300 black legislators elected from southern states in 1872.