Amendment 15 — Federal Remedial Legislation

prev | next

Fifteenth Amendment , Section 2:

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

Federal remedial legislation related to the Fifteenth Amendment [1](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn1amd15 " In Giles v. Harris, 189 U.S. 475 (1903), the Court refused to order the registration of 6,000 Black voters who alleged that they were being wrongly denied the franchise, suggesting that the petitioners apply to Congress or the President for relief. The passage of the 1957 Civil Rights Act 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 and its amendments expanded on this authorization by permitting the Attorney General to seek a court finding of “pattern or practice” of discrimination in any particular jurisdiction. ") culminated in the passage of the Voting Rights Act of 1965 and its amendments.[2](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn2amd15 " Voting Rights Act of 1965, Pub. L. No. 89–110, 79 Stat. 437. ") Pursuant to the Voting Rights Act, Congress provided, among other things, that if the Attorney General determined that any state or political subdivision maintained any test or device, such as literacy tests, and that less than 50% of the voting age population in that jurisdiction was registered to vote or voted in the previous presidential election, such tests or devices were to be suspended for five years and no person could be denied the right to vote on that basis, and prescribed which states and jurisdictions with a history of discrimination were required to obtain “preclearance” before changing any voting law.[3](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn3amd15 " 52 U.S.C. §§ 10303(a), 10303(b). ")

Upholding the constitutionality of the Voting Rights Act a year later in South Carolina v. Katzenbach, the Court sketched the broad outlines of Congress’s power to enforce the Fifteenth Amendment .[4](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn4amd15 " 383 U.S. 301 (1966). ") The Court held that Congress could “enforce” the guarantee of the right to vote by any rational means at its disposal.[5](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn5amd15 " Id. at 325–26. ") 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.[6](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn6amd15 " Id. at 330–31. ") The Katzenbach decision affirmed Congress’s power to enact measures designed to enforce the Fifteenth Amendment through broad affirmative prescriptions rather than through proscriptions of specific practices. Subsequent decisions of the Burger Court confirmed the reach of this power.[7](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn7amd15 " See Gaston Cty. v. United States, 395 U.S. 285 (1969) (holding that that evidence of past discrimination in the educational opportunities available to Black children precluded a North Carolina county from reinstituting a literacy test). See also, 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); United States v. Board of Comm’rs of Sheffield, 435 U.S. 110 (1978). ") When Congress suspended literacy tests throughout the Nation in 1970, the Court unanimously sustained the action as a valid measure under the Fifteenth and Fourteenth Amendment s.[8](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn8amd15 " Oregon v. Mitchell, 400 U.S. 112 (1970) (splitting 5-4 on whether Congress could set voting age requirements). ")

In the 1980 case City of Rome v. United States, the City had sought to exit the preclearance requirements of the Voting Rights Act by showing that it had not used any discriminatory practices within the prescribed period.[9](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn9amd15 " 446 U.S. 156, 172 (1980). ") The lower court found that the City had engaged in practices without any discriminatory motive, but that its practices had a discriminatory impact.[10](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn10amd15 " Id. ") The City thus argued that, because the Fifteenth Amendment reached only purposeful discrimination, the Act went beyond Congress’s power.[11](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn11amd15 " Id. at 173. ") The Court held, however, that, even if discriminatory intent was a prerequisite to finding a violation of Section 1 of the Fifteenth Amendment ,[12](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn12amd15 " Cf. City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980). ") Congress still had authority to proscribe electoral devices that have a discriminatory impact or effect.[13](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn13amd15 " See City of Rome, 446 U.S. at 173. ") The Court stated:

It is clear, then, that under § 2 of the Fifteenth Amendment Congress may prohibit practices that in and of themselves do not violate § 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.[14](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn14amd15 " City of Rome v. United States, 446 U.S. 156, 177 (1980). See also Lopez v. Monterey Cty., 525 U.S. 266 (1999). ")

However, just as the Court showed the Voting Rights Act’s reach in City of Rome, it almost simultaneously set limitations in City of Mobile v. Bolden that same year. As enacted in 1965, another section of the Voting Rights Act, Section 2, largely tracked the language of Section 1 of the Fifteenth Amendment .[15](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn15amd15 " Codified as amended at 52 U.S.C. §§s 10301, 10303(f) ") In City of Mobile v. Bolden, a majority of the Court agreed that the Fifteenth Amendment and the Act were coextensive, but the Justices did not agree on the meaning to be ascribed to the statute.[16](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn16amd15 " 446 U.S. 55 (1980). See id. at 60–61 (Burger, C.J., Stewart, Powell, Rehnquist, JJ.); id. at 105 n.2 (Marshall, J., dissenting). ") A plurality believed that because the constitutional provision reached only purposeful discrimination, Section 2 of the Voting Rights Act was similarly limited. A major purpose of Congress’s 1982 amendments to the Act,[17](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn17amd15 " See Thornburg v. Gingles, 478 U.S. 30, 80 (1986) (applying the amended language in the Voting Rights Act in the context of multimember districting). ") therefore, was to put aside this possible interpretation 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.[18](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn18amd15 " The 1982 amendments also changed 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 covered by the Act only if the change would lead to a retrogression in the position of racial minorities. The 1982 amendments provide that the change may also not be approved if it would “perpetuate voting discrimination,” in effect applying the new Section 2 “results test” to preclearance procedures. S. Rep. No. 97–417, at 12 (1982); H.R. Rep. No. 97–227, at 28 (1981). ")

The Court in Shelby County v. Holder,[19](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn19amd15 " 570 U.S. 529 (2013). ") however, emphasized the limits to the enforcement power of the Fifteenth Amendment in striking down Section 4 of the Act, which provided the formula that determined which states or electoral districts are required to submit electoral changes to the Department of Justice or a federal court for preclearance under Section 5 of the Act.[20](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn20amd15 " In 2006, Congress had reauthorized the Act for twenty-five years and provided that the preclearance requirement extended to jurisdictions that had a voting test and less than 50% voter registration or turnout as of 1972. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King, Voting Rights Act Reauthorization and Amendments Act, Pub. L. No. 109–246, 120 Stat. 577 (2006). ") In Shelby County, the Court described the section 5 preclearance process as an “extraordinary departure from the traditional course of relations between the States and the Federal Government” [21](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn21amd15 " Shelby Cnty., 570 U.S. at 545. ") and violating the “fundamental principle of equal sovereignty” among states.[22](https://www.law.cornell.edu/constitution-conan/amendment-15/federal-remedial-legislation#fn22amd15 " Id. at 542 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holde