Shelby County v. Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement...

7/29/2019 Shelby County v. Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement Power

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Shelby County v. Holder:

An Historical Exploration of the Fifteenth Amendment and itsEnforcement Power

A ConSource Research Project

The mission of The Constitutional Sources Project is to increase understanding,facilitate research, and encourage discussion of the United States Constitution byconnecting individualsincluding students, teachers, lawyers, and judgeswith thedocumentary history of its creation, ratification, and amendment.


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I. The Constitution and The Right to Vote

(A) Text of the Constitution

(1) Citation:U.S.CONST. amend XIV.Background: The Fourteenth Amendment was passed in July of 1866 by the Thirty-ninth Congress. Itbecame part of the Constitution on July 9, 1868, when 28 of the 37 states ratified the amendment. TheFourteenth Amendment, like theCivil Rights Act of 1866, was drafted by Congressional Republicans aspart of a multi-faceted effort to combat Black Codes, statutespassed by Southern states that limited therights of African Americans, resurrecting what many viewed as a de facto system of slavery. TheAmendment contains one provision, Section 2, that addresses state restrictions on the right to vote, but doesnot empower Congress to directly regulate suffrage in the States or to protect the voting rights of AfricanAmericans. Instead, Section 2 of the Fourteenth Amendment imposes a direct penaltya reduction infederal Congressional representationfor states that deny suffrage rights to male inhabitants above the ageof twenty-one. The perceived failure of Section 2 to address the denial of suffrage rights to AfricanAmericans, in both the north and south, led to calls by many Republican members of congress for the

enactment of the Fifteenth Amendment.

For more information on the Fourteenth Amendment, see14thAMENDMENT TO THE U.S.CONSTITUTION.

Text: SECTION 1. All persons born or naturalized in the United States, and subject tothe jurisdiction thereof, are citizens of the United States and of the state wherein theyreside. No state shall make or enforce any law which shall abridge the privileges orimmunities of citizens of the United States; nor shall any state deprive any person of life,liberty, or property, without due process of law; nor deny to any person within itsjurisdiction the equal protection of the laws.

SECTION 2. Representatives shall be apportioned among the several states according totheir respective numbers, counting the whole number of persons in each state, excludingIndians not taxed. But when the right to vote at any election for the choice of electors forPresident and Vice President of the United States, Representatives in Congress, theexecutive and judicial officers of a state, or the members of the legislature thereof, is deniedto any of the male inhabitants of such state, being twenty-one years of age, and citizens ofthe United States, or in any way abridged, except for participation in rebellion, or othercrime, the basis of representation therein shall be reduced in the proportion which thenumber of such male citizens shall bear to the whole number of male citizens twenty-oneyears of age in such state.

SECTION 3. No person shall be a Senator or Representative in Congress, or elector ofPresident and Vice President, or hold any office, civil or military, under the United States,or under any state, who, having previously taken an oath, as a member of Congress, or asan officer of the United States, or as a member of any state legislature, or as an executive orjudicial officer of any state, to support the Constitution of the United States, shall haveengaged in insurrection or rebellion against the same, or given aid or comfort to theenemies thereof. But Congress may by a vote of two-thirds of each House, remove suchdisability.
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SECTION 4. The validity of the public debt of the United States, authorized by law,including debts incurred for payment of pensions and bounties for services in suppressinginsurrection or rebellion, shall not be questioned. But neither the United States nor anystate shall assume or pay any debt or obligation incurred in aid of insurrection or rebellionagainst the United States, or any claim for the loss or emancipation of any slave; but all

such debts, obligations and claims shall be held illegal and void.SECTION 5. The Congress shall have power to enforce, by appropriate legislation, theprovisions of this article.

(2) Citation:U.S.CONST. amend XV.Background: Congress passed the Fifteenth Amendment on February 26, 1869. On March 30, 1870,the Fifteenth Amendment became part of the Constitution. In the process of drafting the Amendment,members of congress produced three different versions of the text. The first and most moderate proposalprohibited states from denying citizens the vote because of their race, color, or previous status as a slave. Thesecond version prohibited states from denying the vote to anyone based on literacy, property, or circumstancesof birtha controversial option, even among congressional Republicans, many of whom supported literacyqualifications to limit the electoral strength of immigrants in their states. The third, and most controversialversion, would have prohibited all restrictions on the right to vote for male citizens above the age of twenty-one. Determined to achieve ratification, in a sharply divided nation, the drafters ultimately settled on thefirst and more modest version of the amendment to present to states for ratification. For more information

about the Fifteenth Amendment see15thAMENDMENT TO THE CONSTITUTION.

Text: SECTION 1. The right of citizens of the United States to vote shall not be denied orabridged by the United States or by any state on account of race, color, or previouscondition of servitude.

SECTION 2. The Congress shall have power to enforce this article by appropriatelegislation.

(B) Statutes

(1) Citation:An Act to regulate the elective Franchise in the District of Columbia, 14 Stat. 375(January 8, 1867).

Background: In the period between the ratification of the Fourteenth Amendment and the passage of theFifteenth Amendment, Congress extended, for the first time in United States history, the right to vote toAfrican-Americans by a series of statutes. The first such act, The District of Columbia Franchise Act,

passed by the Thirty-ninth Congress on January 8, 1867, guaranteed the right to vote to most male citizensover the age of twenty-one in the District of Columbia, without regard to race or color. Exceptions weremade for those under guardianship, those convicted of major crimes, and those who had voluntarily shelteredConfederate troops during the Civil War. President Johnson vetoed the law, but congress overrode the vetoand it passed into law.

Text:Be it enacted by the Senate and House of Representatives of the United States of America inCongress assembled,That, from and after the passage of this act, each and every male person,
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excepting paupers and persons under guardianship, of the age of twenty-one years andupwards, who has not been convicted of any infamous crime or offence, and exceptingpersons who may have voluntarily given aid and comfort to the rebels in the late rebellion,and who shall have been born or naturalized in the United States, and who shall haveresided in the said District [of Columbia] for the period of one year, and three months in

the ward or election precinct in which he shall offer to vote, next preceding any electiontherein, shall be entitled to the elective franchise, and shall be deemed an elector andentitled to vote at any election in said District, without any distinction on account of raceor color.

(2) Citation:An Act to regulate the elective Franchise in the Territories of the United States(the Territorial Suffrage Act), 14 Stat. 379 (January 25, 1867).

Background:After the passage of the District of Columbia Suffrage Act, and the petition of a group ofColorado Freedmen, the Thirty-ninth Congress passed what has become known as the Territorial SuffrageAct. The Act prohibited territorial governments from denying the elective franchise on account of race orprevious condition of servitude. Like the District of Columbia Suffrage Act, the Act became law after

congress overrode President Johnsons veto. The language of the Territorial Suffrage Act is similar to thatfound in Section 1 of the Fifteenth Amendment.

Text: Be it enacted by the Senate and House of Representatives of the United States of America inCongress assembled, That from and after the passage of this act, there shall be no denial of theelective franchise in any of the Territories of the United States, now, or hereafter to beorganized, to any citizen thereof, on account of race, color, or previous condition ofservitude: and all acts or parts of acts, either of Congress or the Legislative Assemblies ofsaid Territories, inconsistent with the provision of this act are hereby declare null and void.

(3) Citation:An Act to provide for the more efficient government of the rebel states (the FirstReconstruction Act), 14 Stat. 428-29 (March 2, 1867).

Background: The First Reconstruction Act, also known as the Military Reconstruction Act, becamelaw on March 2, 1867over President Andrew Johnsons veto. The act applied to all ex-Confederate statesin the south, except Tennessee, which had already ratified the Fourteenth Amendment. It split the statesinto five military districts, each under the control of a military general who was tasked with maintainingand protecting peace, order, life and liberty. The Act also demanded the drafting of new state constitutions,the provision of equal rights for all citizens, and the ratification of the Fourteenth Amendment. One of themore contentious aspects of the Act was found in Section 5, which mandated that all newly drafted stateconstitutions provide for the enfranchisement of all male citizens, except those who participated in therebellion or otherwise committed crimes recognized as felonies at common law.

Text:Sec. 5. That when the people of any one of said rebel States shall have formed a

constitution of government in conformity with the Constitution of the United States in allrespects, framed by a convention of delegates elected by the male citizens of said Statetwenty-one years old and upward, of whatever race, color, or previous condition, who havebeen resident in said State for one year previous to the day of such election, except such asmay be disfranchised for participation in the rebellion, or for felony at common law, andwhen such constitution shall provide that the elective franchise shall be enjoyed by all suchpersons as have the qualifications herein stated for electors of delegates, and when suchconstitution shall be ratified by a majority of the persons voting on the question of
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ratification who are qualified as electors for delegates, and when such constitution shallhave been submitted to Congress for examination and approval, and Congress shall haveapproved the same, and when said State, by a vote of its legislature elected under saidconstitution, shall have adopted the amendment to the Constitution of the United States,proposed by the Thirty-Ninth Congress, and known as article fourteen, and when said

article shall have become a part of the Constitution of the United States, said State shall bedeclared entitled to representation in Congress, and Senators and Representatives shall beadmitted therefrom on their taking the oaths prescribed by law, and then and thereafter thepreceding sections of this act shall be inoperative in said State: Provided, That no personexcluded from the privilege of holding office by said proposed amendment to theConstitution of the United States shall be eligible to election as a member of theconvention to frame a constitution for any of said rebel States, nor shall any such personvote for members of such convention.

Sec. 6. That until the people of said rebel states shall be by law admitted to representationin the Congress of the United States, any civil governments which may exist therein shallbe deemed provisional only, and in all respects subject to the paramount authority of the

United States at any time to abolish, modify, control, or supersede the same; and in allelections to any office under such provisional governments all persons shall be entitled tovote, and none others, who are entitled to vote under the provisions of the fifth section ofthis act; and no person shall be eligible to any office under any such provisionalgovernments who would be disqualified from holding office under the provisions of thethird article of said constitutional amendment.

(4) Citation:E.g.,An Act to admit the State of Arkansas to Representation in Congress, 15Stat. 72 (June 20, 1868).

Background: The Act to admit the State of Arkansas to Representation in Congress is a representativeexample of the Acts of June 22 to 25, 1868, by which seven states (Arkansas, North Carolina, South

Carolina, Louisiana, Georgia, Alabama, and Florida) were admitted to the Union upon thefundamental conditionthat the constitutions of these states would never be altered to deprive enfranchisedformer slaves of the right to vote. The bills were passed over President Johnsons veto. Radical RepublicanJohn Bingham, principle architect of the Fourteenth Amendment, later questioned the binding force of suchconditions, noting that the American system of government is a total failure if the people cannot beinstructed with the right of altering and amending their constitutions of government at their pleasure, subjectto the general limitations of the Federal Constitution.CONG.GLOBE,40TH CONG.,2D Sess. 2211(March 28, 1868) (Remarks of Representative Bingham).Binghams concerns would later drive him andothers to push for the passage of the Fifteenth Amendment, in order to ensure that individuals within eachstate would not be disenfranchised on the basis of race or previous condition of servitude.

Text: WHEREAS

the people of Arkansas, in pursuance of the provisions of an act entitledAn act for the more efficient government of the rebel States, passed March second,eighteen hundred and sixty-seven, and the acts supplementary thereto, have framed andadopted a constitution of State government, which is republican, and the legislature of saidState has duly ratified the amendment to the Constitution of the United States proposed bythe Thirty-ninth Congress, and known as article fourteen: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congressassembled, That the State of Arkansas is entitled and admitted to representation in Congress
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as one of the States of the Union upon the following fundamental condition: That theconstitution of Arkansas shall never be so amended or changed as to deprive any citizen orclass of citizens of the United States of the right to vote who are entitled to vote by theconstitution herein recognized, except as a punishment for such crimes as are now feloniesat common law, whereof they shall have been duly convicted, under laws equally applicable

to all the inhabitants of said States: Provided, That any alteration of said constitutionprospective in its effect may be made in regard to the time and place of residence of voters.

(C) Founding-era Materials

(1) Citation:James Madison,Note to Speech on the Right of Suffrage, in Notes of Debates in the FederalConvention(August 7, 1787) (1821), reprinted in5 DOCUMENTARYHISTORY OF THECONSTITUTION OF THE UNITED STATES OFAMERICA 440-49 (Washington, DC, 1901-05)(emphasis in original).

Background: During the Thirty-ninth Congress, Senator Jacob M. Howard, a Radical Republicanfrom Michigan who worked closely with Abraham Lincoln to draft and pass the Thirteenth Amendment,

quotedMadisons 1787 Constitutional Convention notesto support a right of suffrage for AfricanAmericans. After quoting the below excerpted quote, he asked the following question: Now, apply thatgreat principle as broadly as it is laid down by Mr. Madison on the page from which I have read, and howcan any man of true republican feeling, attached to the essential principles of our system of government refusethe right of suffrage to the whole negro population as a class?CONG.GLOBE,39TH CONG.,1STSESS.2767 (1866) (statement of Senator Howard).While Madisons language appears broad andsweeping, it is worth noting that his discussion of the universal right of suffrage was couched in a largerdebate over property qualifications for voting, which Madison ultimately supported.

Text: Under every view of the subject, it seems indispensable that the Mass of Citizensshould not be without a voice, in making the laws which they are to obey, & in chusing

[sic] the Magistrates, who are to administer them, and if the only alternative be between anequal & universal right of suffrage for each branch of the Govt. and a confinement of theentireright to a part of the Citizens, it is better that those having the greater interest at stakenamely that of property & persons both, should be deprived of half their share in theGovt.; than, that those having the lesser interest, that of personal rights only, should bedeprived of the whole.

(D) Legislative Record

(1) Citation:CONG.GLOBE,39TH CONG.,1ST SESS.91(December 20, 1865) (Remarks ofSenator Sumner) (emphasis in original).

Background: Senator Charles Sumner, a Radical Republican and staunch abolitionist, took thefloor of the Senate to resume discussion on a bill introduced by his colleague Senator HenryWilson tomaintain the freedom of the inhabitants in the States declared in insurrection and rebellion by theProclamation of the President of the first of July, 1862.Wilsons proposed bill, if passed, wouldeffectively nullify all state laws making distinctions on account of race or color. Sumner here declaresthat it is the duty of the national government, and not the recalcitrant states, composed of former slave-owners, to maintain and preserve the life and liberty of those freed by the Emancipation Proclamation.
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Text: All must admit that the bill of my colleague is excellent in purpose. It proposesnothing less than to establish Equality before the Law, at least so far as civil rights areconcerned, in the rebel States. This is done simply to carry out and maintain theProclamation of Emancipation, by which this Republic is solemnly pledged to maintain

the emancipated slave in his freedom. Such is our pledge: and the ExecutiveGovernment of the United States, including the military and naval authority thereof,will recognize and maintain the freedom of such persons. This pledge is without anylimitation in space or time. It is as extended and as immortal as the Republic itself.Does anybody call it vain words? I trust not. To that pledge we are solemnly bound.Wherever our flag floats as long as time endures we must see that it is sacredlyobserved.

But the performance of that pledge cannot be intrusted [sic] to another; least of all, canit be intrusted [sic] to the old slave-masters, embittered against their slaves. It must beperformed by the national Government. The power that gave freedom must see thatthis freedom is maintained.

(2) Citation: CONG.GLOBE,39TH CONG.,1ST SESS. 1256 (March 8, 1866) (Statement ofSenator Wilson).

Background: Senator Henry Wilson of Massachusetts, a supporter of the Radical Republicanreconstruction program, responds here to a question raised by Senator Yates, asking whetherthe[Fourteenth Amendment] permit[s] the rebellious States to exclude from the right of voting and todisfranchise entirely the freedmen?Wilson answers in the negative, pointing to Section 2s penaltyprovision. In giving his answer, he draws attention to the chief limitation of Section 2 of the FourteenthAmendmentthat its language leaves considerable discretion in the hands of the state, which wouldultimately permit them to limit the exercise of the franchise by freedmen and others. This deficiency

ultimately leads Wilson and his Republican colleagues to push for the passage of a suffrage amendmentduring the Fortieth and Forty-first congresses.

Text: I answer emphatically, no! In my judgmentand I have tried very hard to thinkthe other way, and have heard and read a good deal on that subjectthis amendmentpermits nothing, nothing whatever. I have never seen or heard or read anything yet thatconvinces me that the adoption of the constitutional amendment making free thesepeople gave the Congress of the United States any power to settle the question ofsuffrage in Pennsylvania, Ohio, Indiana, or anywhere else.

* * * *

I will answer the Senator by saying that I think this amendment leaves the matter withthe States just precisely as it is now; there is no implication in it, no compromise in it,no surrender by this Government of any power whatever. This amendment does nottouch the question of suffrage at all; this amendment simply proposes a penalty fordenying to freemen the right of suffrage. It proposes that free persons, as now, shallcontinue to be the basis of representation; but that if any portion of them, on accountof color or race, are denied, in any State, the rights of suffrage, they shall not be
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counted in the basis of representation.

If it is trueand who can doubt itthat the States possess the power of prescribingthe qualifications of electors, how can it be maintained that by implication thisamendment concedes to the States the power of denying the right of suffrage? This

amendment concedes nothing whatever. It yields nothings whatever of the powers nowpossessed by the Federal Government; but it does say to every States, If you denysuffrage to any man on account of color or race the whole of that class or race shall beexcluded from the basis of representation. There is no compromise in this, noconcession, no surrender of any rights now possessed by the Government.

(3) Citation:CONG.GLOBE,39TH CONG.,1ST SESS.353(January 22, 1866) (Statement ofRep. Rogers).

Background: Representative Andrew Rogers of New Jersey, a Democrat who served on the JointCommittee of Reconstruction, in an attempt to dissuade his colleagues from passing broaderconstitutional language securing the right to vote, describes here what he views as the Fourteenth

Amendments devils bargain.In order for states to secure their rightful representation in congress,they must allow unqualified suffrage for freedmen. Ultimately, Rogers and his fellow Democrats fail toconvince their Republican colleagues that Section 2 of the Fourteenth Amendment adequatelysafeguarded African American voting rights in the states.

Text: This proviso says: That whenever the elective franchise shall be denied orabridged in any State on account of race or color, all persons of such race or color shallbe excluded from the basis of representation.

What does the word abridge mean? It means that if the State of Kentucky, SouthCarolina, or New Jersey should see fit to allow its colored population the right of

suffrage upon a qualification based upon property, or intelligence, or any otherqualification which they did not impose upon the white people, each one of thoseStates would be deprived of representation for every colored man, woman, and child inthat State.

* * * *

Why, sir, this will driveand this is the only object of the propositionevery State inthis Union, except where the negroes are in the majority, to allow to the negroes withinthe States unqualified suffrage to save them from the penalty annexed to their refusalto concur in this dogma of the party in power, unqualified negro suffrage. The only

object, and the only effect of the bill are to induce the States, in order to secure theirrightful representation on this floor, to allow to the negro unqualified suffrage, withoutany condition or qualification, without regard to the degree of intelligence or educationwhich he may possess. The State that attempts to require any qualifications of onesingle negro to vote will, under this amendment, be deprived of representation forevery man, woman, and child of the color or race of the person who may havequalified suffrage unless the same conditions are imposed upon white people.
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(4) Citation:CONG.GLOBE,40TH CONG.,3D SESS. 727 (January 29, 1869) (statement ofRep. Boutwell) (emphasis added).

Background:As consensus emerged, at least amongst Republicans, over the FourteenthAmendmentsinability to address the denial of African American suffrage in all statesnorth and

souththe discussion in congress shifted to the drafting and passage of a new amendment. Asdescribed above, three proposals for a Suffrage Amendment were made. Here, Representative GeorgeBoutwell from Massachusetts, a prominent abolitionist and champion of African American suffrage,discusses the virtues of settling on a more modestly phrased amendment, one that would protect againstdiscrimination on the basis of race, color, or previous condition of servitude rather than affirmativelygranting a universal right of suffrage.

Text: What [Mr. Bingham] has said only adds force to the suggestion I made, that theamendment proposed by the gentleman from Ohio, if referred to the State Legislatures,will be met by [a number of] difficulties; and although I should be willing to strikedown all educational or property tests, and all possibility of their being establishedanywhere, the probability is that the amendment which we are discussing, if submitted

substantially as it came from the committee, will be stronger before the people, andthat if we should attempt to grasp at too much we shall lose the whole. I believe that if we adhere to theproposition to protect the people of this country against distinction on account of race, color, or previouscondition of slavery we undertake all that it is probably safe for us to undertake now.

(5) Citation:CONG.GLOBE,40TH CONG.,3D SESS. 862 (February 4, 1869) (Statement ofSenator Warner).

Background: Senator Willard Warner, elected to the Senate to represent Alabama, after the statesreadmission to the Union, discusses the limitations of the more modest phrasing of the suffrageamendment supported by Boutwell and others, and later codified in the Fifteenth Amendment itself.

Disappointed by what he views as major shortcomings in the proposed constitutional text, Warnerasks, Is this the Dead sea fruit which we are to gather from the plantings of a hundred years?

Text: Now, what are the words proposed by the committee to be put into theConstitution to settle this vital question [of suffrage]? They are as follows:

No State shall deny or abridge the right of its citizens to vote and hold office onaccount of race, color, or previous condition.

* * * *

Let us examine the force and scope of this provision.

First, it does not determine who shall vote and hold office. Secondly, it does notprotect any class of citizens against disfranchisement or disqualification. It simply andonly provides that certain classes indicated shall not be disfranchised or disqualified forcertain reasons, namely, race, color, or condition. For any other reason any State maydeprive any portion of its citizens of all share in the Government. The animusof thisamendment is a desire to protect and enfranchise the colored citizens of the country;
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yet, under it and without any violation if its letter or spirit, nine tenths of them mightbe prevented from voting and holding office by the requirement on the part of theStates or of the United States of an intelligence or property qualification.

Is this the Dead sea fruit which we are to gather from the plantings of a hundred years?

Is this to be the sum of the triumph of the grand struggle of a century past in thiscountry for equal rights, a struggle whose pathway is marked by the graves ofunnumbered martyrs, and whose culmination rocked the Republic to its base andreddened a thousand fields with the blood of its best sons?

(6) Citation:CONG.GLOBE, 40TH CONG.,3D SESS.863 (February 4, 1869) (Statement ofSenator Morton).

Background: In this speech, Senator H.P.T. Morton, a stalwart ally of Abraham Lincoln and aRadical Republican, concedes that the Fifteenth Amendment, as drafted, might allow states todisenfranchise citizens on any basis other than race, color, and previous condition of servitude. Warnerand Mortons discussions of the suffrage amendments limitationsare relevant to later discussions of the

Enforcement Act of 1870, which set out to enforce Section 1 of the Fifteenth Amendment.

Text:The amendment of our committee is:

The right of citizen of the United States to vote and hold office shall not be deniedor abridged by the United States, or any State, on account of race, color, orprevious condition of servitude.

It will be observed that this language admits or recognizes that the whole power overthe question of suffrage is vested in the several States except as it shall be limited bythis amendment. It tacitly concedes that the States may disfranchise the colored people

or any other class of people for other reasons save and except those mentioned in theamendment. They cannot be disfranchised by reason of race, color, or previouscondition of servitude. In other words, it leaves all the existing irregularities andincongruities in suffrage.

(E) Case Law

(1) Citation: Anthony v. Halderman, 7 Kan. 50, 58-59 (1871), availablewithsubscription onLexisNexis or WestLaw, or upon request by ConSource staff (emphasis in original).

Background: Anthony v. Halderman was a Kansas Supreme Court case involving 130 male

persons of African descent who were denied the right to register as voters for a mayoral election. TheKansas justices interpretation of the Fifteenth Amendment is consistent with most state courtinterpretations of the amendment during this period. The Kansas justices, like their counterparts inother states, strictly construed the amendment as leaving in place all qualifications on the right to vote,except the requirement that all voters be white. The justices also read the amendment as conferring noright to vote; instead, they interpreted the amendment as simply preventing the future denial of suffrageon the basis of race or previous condition of servitude.
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Text: If, in answer to this suggestion, it shall be claimed that the so-called fifteenthamendment to the constitution of the United States conferredthe franchise, or a right ofvoting, on such negroes as had the necessary qualifications other than that of beingwhite, then, in answer thereto, we submit that said amendment does not have such

effect. Toprevent a future denial of a rightis one thing; to confer a rightis another and verydifferent matter. Negroes never otherwise obtained any right to vote in Kansas. If theconstitution of this state shall hereafter be amended so as to permit negroes to votehere, then such right could not afterwards be taken from them. In states where theyhad such right when said amendment took effect, it cannot be taken from them.Further than this said amendment is not operative. The said amendment should beconstrued according to its language, and not in accordance with any supposed orpresumed intent not shown by the law itself.

(2) Citation: Wood v. Fitzgerald, 3 Or. 568, 568 (1870), available withsubscription onLexisNexis or WestLaw, or upon request by ConSource staff.

Background: Here, again, the Oregon Supreme Court further illustrates the conventional wisdom ofstate court justicesthe Fifteenth Amendment, as strictly construed, only operates to void those lawsrestricting the right of suffrage to white persons. The next section of this report on the scope of congresssenforcement power will review federal court interpretation of the Fifteenth Amendment.

Text: The fifteenth amendment to the federal constitution is a part of the supreme lawof the land, and its effect is to annul those provisions of the state constitution, andthose enactments of the state legislature, which restrict the exercise of the right ofsuffrage to white persons.

II. Scope ofCongresss Power to Enforce the Reconstruction Amendments.

(A) Text of Constitution

(1) Citation:U.S.CONST., art. I, 4, cl. 1.Background:The Elections Clause enables Congress to make or alter regulations regarding the time,place, and manner of federal elections in the states, except with respect to location of choosing Senators. In1884, inEx Parte Yarbrough, 110 U.S. 651 (1884), the Supreme Court upheld the authority of

Congress under the Elections Clause to enact laws criminalizing voter suppression through violence andintimidation. The Court noted that it was not until 1842 that Congress took action under the ElectionsClause, and asserted, it is only because the Congress of the United States, through long habit and longyears of forbearance, has, in deference and respect to the States, refrained from the exercise of these powers,that they are now doubted. Id. at 662.

Text:The times, places, and manner of holding elections for Senators and Representativesshall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by law make or alter such regulations, except as to the places of choosing of Senators.
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(2) Citation:U.S. Const. amend XV, 2.Background:The second section of the Fifteenth Amendment, which is modeled on similar sections inthe Thirteenth and Fourteenth Amendments, was included because it was feared that without the provision,

the power of Congress would not be extensive enough to secure the proper enforcement of Section 1. JohnBingham and others believed the enforcement language would also help remedy the negative character of themodestly phrased suffrage amendment by enabling congress, among other things, to secure state-wideuniformity in the qualifications of electors.CONG.GLOBE 40TH CONG,3D.SESS. 727 (January 29,1869) (Statement of Representative Bingham).Most members of congress, including congressionalRepublicans, did not accept Binghamsinterpretation of Section 2, and rejected the idea that the FifteenthAmendment might be made affirmative in character. See, e.g.,CONG.GLOBE 40TH CONG.,3D SESS.727-28 (Statement of Representative Jenckes).

Text: Section 2. The Congress shall have power to enforce this article by appropriatelegislation.

(B) Statutes

(1) Citation:An Act supplementary to an Act entitled An Act to provide for the moreefficient Government of the Rebel States, passed [March 2, I867] and the Actsupplementary thereto, passed [March 23, I867] 11 (the Third Reconstruction Act), 15Stat. 14 (July 19, 1867).

Background: The Third Reconstruction Act clarified the language and true intent of the First andSecond Reconstruction Acts. The first two reconstruction acts divided the former Confederate states into five

military districts, required new state constitutions recognizing the voting rights of freedmen, and demandedstate ratification of the Fourteenth Amendment as a condition for readmission to the Union. Section 11 ofthe Third Reconstruction Act declared that the first two acts should be construed liberally, granting congressample powerto carry forth each billsprovisions, which included language requiring state recognition ofvoting rights for freedmen.

Text: SEC. 11. And be it further exacted, That all provisions of this act and of the acts towhich this is supplementary shall be construed liberally, to the end that all the intentsthereof may be fully and perfectly carried out.

(2) Citation:An Act to enforce the Right of Citizens of the United States to vote in theseveral States of this Union, and for other Purposes (Enforcement Act of 1870), 16 Stat.

140, (May 31 1870).

Background:As a columnist noted in May of 1870,everybody knows that in many states the[fifteenth amendment] standing by itself, isnt worth a straw.DWB,Washington, THEINDEPENDENT(May 1870). Congress responded to this state of affairs by passing the Enforcement Actof 1870. The Act principally enforced the Fifteenth Amendment, stating that race, color, or previouscondition of servitude could not bar an otherwise qualified voter from voting, regardless of whatdiscriminatory language remained in state or local laws. It also allowed for the federal prosecution of anyone
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who obstructed citizens in the exercise of the elective franchise. Section 19 of the Act further authorizedfederal authorities to prosecute irregularities and corrupt practices in congressional elections.

Text: Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of Americain Congress assembled, That all citizens of the United States who are or shall be otherwise

qualified by law to vote at any election by the people in any State, Territory, district,county, city, parish, township, school district, municipality, or other territorial subdivision,shall be entitled and allowed to vote at all such elections, without distinction of race, color,or previous condition of servitude; any constitution, law, custom, usage, or regulation ofany State or Territory, or by or under its authority, to the contrary notwithstanding.

Sec. 2.And be it further enacted, That if by or under the authority of the constitution or lawsof any State, or the laws of any Territory, any act is or shall be required to be done as aprerequisite or qualification for voting, and by such constitution or laws persons or officersare or shall be charged with the performance of duties in furnishing to citizens anopportunity to perform such prerequisite, or to become qualified to vote, it shall be theduty of every such person and officer to give to all citizens of the United States the same

and equal opportunity to perform such prerequisite, and to become qualified to votewithout distinction of race, color, or previous condition of servitude; and if any suchperson or officer shall refuse or knowingly omit to give full effect to this section, he shall,for every such offence, forfeit and pay the sum of five hundred dollars to the personaggrieved thereby, to be recovered by an action on the case, with full costs, and suchallowance for counsel fees as the court shall deem just, and shall also, for every suchoffence, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined notless than five hundred dollars, or be imprisoned not less than one month and not morethan one year, or both, at the discretion of the court.

Sec. 3.And be it further enacted, That whenever, by or under the authority of the constitution

or laws of any State, or the laws of any Territory, any act is or shall be required to [be] doneby any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizento perform the act required to be done as aforesaid shall, if it fail to be carried intoexecution by reason of the wrongful act or omission aforesaid of the person or officercharged with the duty of receiving or permitting such performance or offer to perform, oracting thereon, be deemed and held as a performance in law of such act; and the person sooffering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote inthe same manner and to the same extent as if he had in fact performed such act; and anyjudge, inspector, or other officer of election whose duty it is or shall be to receive, count,certify, register, report, or give effect to the vote of any such citizen who shall wrongfullyrefuse or omit to receive, count, certify, register, report, or give effect to the vote of suchcitizen upon the presentation by him of his affidavit stating such offer and the time andplace thereof, and the name of the officer or person whose duty it was to act thereon, andthat he was wrongfully prevented by such person or officer from performing such act, shallfor every such offence forfeit and pay the sum of five hundred dollars to the personaggrieved thereby, to be recovered by an action on the case, with full costs, and suchallowance for counsel fees as the court shall deem just, and shall also for every suchoffence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less thanfive hundred dollars, or be imprisoned not less than one month and not more than oneyear, or both, at the discretion of the court.


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Sec. 4.And be it further enacted, That if any person, by force, bribery, threats, intimidation, orother unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine andconfederate with others to hinder, delay, prevent, or obstruct, any citizen from doing anyact required to be done to qualify him to vote or from voting at any election as aforesaid,such person shall for every such offence forfeit and pay the sum of five hundred dollars to

the person aggrieved thereby, to be recovered by an action on the case, with full costs, andsuch allowance for counsel fees as the court shall deem just, and shall also for every suchoffence be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less thanfive hundred dollars, or be imprisoned not less than one month and not more than oneyear, or both, at the discretion of the court.

Sec. 5.And be it further enacted, That if any person shall prevent, hinder, control, orintimidate, or shall attempt to prevent, hinder, control, or intimidate, any person fromexercising or in exercising the right of suffrage, to whom the right of suffrage is secured orguaranteed by the fifteenth amendment to the Constitution of the United States, by meansof bribery, threats, or threats of depriving such person of employment or occupation, or ofejecting such person from rented house, lands, or other property, or by threats of refusing

to renew leases or contracts for labor, or by threats of violence to himself or family, suchperson so offending shall be deemed guilty of a misdemeanor, and shall, on convictionthereof, be fined not less than five hundred dollars, or be imprisoned not less than onemonth and not more than one year, or both, at the discretion of the court.

Sec. 6.And be it further enacted, That if two or more persons shall band or conspire together,or go in disguise upon the public highway, or upon the premises of another, with intent toviolate any provision of this act, or to injure, oppress, threaten, or intimidate any citizenwith intent to prevent or hinder his free exercise and enjoyment of any right or privilegegranted or secured to him by the Constitution or laws of the United States, or because ofhis having exercised the same, such persons shall be held guilty of felony, and, on

conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,the fine not to exceed five thousand dollars, and the imprisonment not to exceed tenyears,and shall, moreover, be thereafter ineligible to, and disabled from holding, anyoffice or place of honor, profit, or trust created by the Constitution or laws of the UnitedStates.

Sec. 7.And be it further enacted, That if in the act of violating any provision in either of thetwo preceding sections, any other felony, crime, or misdemeanor shall be committed, theoffender, on conviction of such violation of said sections, shall be punished for the samewith such punishments as are attached to the said felonies, crimes, and misdemeanors bythe laws of the State in which the offence may be committed.

Sec. 8.And be it further enacted, That the district courts of the United States, within theirrespective districts, shall have, exclusively of the courts of the several States, cognizance ofall crimes and offences committed against the provisions of this act, and also, concurrentlywith the circuit courts of the United States, of all causes, civil and criminal, arising underthis act, except as herein otherwise provided, and the jurisdiction hereby conferred shall beexercised in conformity with the laws and practice governing United States courts; and allcrimes and offences committed against the provisions of this act may be prosecuted by theindictment of a grand jury, or, in cases of crimes and offences not infamous, the


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prosecution may be either by indictment or information filed by the district attorney in acourt having jurisdiction.

Sec. 9.And be it further enacted, That the district attorneys, marshals, and deputy marshals ofthe United States, the commissioners appointed by the circuit and territorial courts of theUnited States, with powers of arresting, imprisoning, or bailing offenders against the lawsof the United States, and every other officer who may be specially empowered by thePresident of the United States, shall be, and they are hereby, specially authorized andrequired, at the expense of the United States, to institute proceedings against all and everyperson who shall violate the provisions of this act, and cause him or them to be arrestedand imprisoned, or bailed, as the case may be, for trial before such court of the UnitedStates or territorial court as has cognizance of the offense. And with a view to affordreasonable protection to all persons in their constitutional right to vote without distinctionof race, color, or previous condition of servitude, and to the prompt discharge of the dutiesof this act, it shall be the duty of the circuit courts of the United States, and the superiorcourts of the Territories of the United States, from time to time, to increase the number ofcommissioners, so as to afford a speedy and convenient means for the arrest and

examination of persons charged with a violation of this act; and such commissioners arehereby authorized and required to exercise and discharge all the powers and dutiesconferred on them by this act, and the same duties with regard to offences created by thisact as they are authorized by law to exercise with regard to other offences against the lawsof the United States.

Sec. 10.And be it further enacted, That it shall be the duty of all marshals and deputy marshalsto obey and execute all warrants and precepts issued under the provisions of this act, whento them directed; and should any marshal or deputy marshal refuse to receive such warrantor other process when tendered, or to use all proper means diligently to execute the same,he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of

the person deprived of the rights conferred by this act. And the better to enable the saidcommissioners to execute their duties faithfully and efficiently, in conformity with theConstitution of the United States and the requirements of this act, they are herebyauthorized and empowered, within their districts respectively, to appoint, in writing, undertheir hands, any one or more suitable persons, from time to time, to execute all suchwarrants and other process as may be issued by them in the lawful performance of theirrespective duties, and the persons so appointed to execute any warrant or process asaforesaid shall have authority to summon and call to their aid the bystanders or possecomitatus of the proper county, or such portion of the land or naval forces of the UnitedStates, or of the militia, as may be necessary to the performance of the duty with whichthey are charged, and to insure a faithful observance of the fifteenth amendment to theConstitution of the United States; and such warrants shall run and be executed by saidofficers anywhere in the State or Territory within which they are issued.

Sec. 11.And be it further enacted, That any person who shall knowingly and willfully [sic]obstruct, hinder, or prevent any officer or other person charged with the execution of anywarrant or process issued under the provisions of this act, or any person or personslawfully assisting him or them from arresting any person for whose apprehension suchwarrant or process may have been issued, or shall rescue or attempt to rescue such personfrom the custody of the officer or other person or persons, or those lawfully assisting as


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aforesaid, when so arrested pursuant to the authority herein given and declared, or shallaid, abet, or assist any person so arrested as aforesaid, directly or indirectly, to escape fromthe custody of the officer or other person legally authorized as aforesaid, or shall harbor orconceal any person for whose arrest a warrant or process shall have been issued asaforesaid, so as to prevent his discovery and arrest after notice or knowledge of the fact

that a warrant has been issued for the apprehension of such person, shall, for either of saidoffences, be subject to a fine not exceeding one thousand dollars, or imprisonment notexceeding six months, or both, at the discretion of the court, on conviction before thedistrict or circuit court of the United States for the district or circuit in which said offencemay have been committed; or before the proper court of criminal jurisdiction, ifcommitted within any one of the organized Territories of the United States.

Sec. 12.And be it further enacted, That the commissioners, district attorneys, the marshals,their deputies, and the clerks of the said district, circuit, and territorial courts shall be paidfor their services the like fees as may be allowed to them for similar services in other cases.The person or persons authorized to execute the process to be issued by suchcommissioners for the arrest of offenders against the provisions of this act shall be entitled

to the usual fees allowed to the marshal for an arrest for each person he or they may arrestand take before any such commissioner as aforesaid, with such other fees as may bedeemed reasonable by such commissioner for such other additional services as may benecessarily performed by him or them, such as attending at the examination, keeping theprisoner in custody, and providing him with food and lodging during his detention anduntil the final determination of such commissioner, and in general for performing suchother duties as may be required in the premises; such fees to be made up in conformitywith the fees usually charged by the officers of the courts of justice within the properdistrict or county as near as may be practicable, and paid out of the treasury of the UnitedStates on the certificate of the judge of the district within which the arrest is made, and tobe recoverable from the defendant as part of the judgment in case of conviction.

Sec. 13.And be it further enacted, That it shall be lawful for the President of the United Statesto employ such part of the land or naval forces of the United States, or of the militia, asshall be necessary to aid in the execution of judicial process issued under this act.

Sec. 14.And be it further enacted, That whenever any person shall hold office, except as amember of Congress or of some State legislature, contrary to the provisions of the thirdsection of the fourteenth article of amendment of the Constitution of the United States, itshall be the duty of the district attorney of the United States for the district in which suchperson shall hold office, as aforesaid, to proceed against such person, by writ of quowarranto, returnable to the circuit or district court of the United States in such district, andto prosecute the same to the removal of such person from office; and any writ of quo

warranto so brought, as aforesaid, shall take precedence of all other cases on the docket ofthe court to which it is made returnable, and shall not be continued unless for causeproved to the satisfaction of the court.

Sec. 15.And be it further enacted, That any person who shall hereafter knowingly accept orhold any office under the United States, or any State to which he is ineligible under thethird section of the fourteenth article of amendment of the Constitution of the UnitedStates, or who shall attempt to hold or exercise the duties of any such office, shall be


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deemed guilty of a misdemeanor against the United States, and, upon conviction thereofbefore the circuit or district court of the United States, shall be imprisoned not more thanone year, or fined not exceeding one thousand dollars, or both, at the discretion of thecourt.

Sec. 16.And be it further enacted, That all persons within the jurisdiction of the United Statesshall have the same right in every State and Territory in the United States to make andenforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of alllaws and proceedings for the security of person and property as is enjoyed by whitecitizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, andexactions of every kind, and none other, any law, statute, ordinance, regulation, or customto the contrary notwithstanding. No tax or charge shall be imposed or enforced by anyState upon any person immigrating thereto from a foreign country which is not equallyimposed and enforced upon every person immigrating to such State from any other foreigncountry; and any law of any State in conflict with this provision is hereby declared null andvoid.

Sec. 17.And be it further enacted, That any person who, under color of any law, statute,ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant ofany State or Territory to the deprivation of any right secured or protected by the lastpreceding section of this act, or to different punishment, pains, or penalties on account ofsuch person being an alien, or by reason of his color or race, than is prescribed for thepunishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shallbe punished by fine not exceeding one thousand dollars, or imprisonment not exceedingone year, or both, in the discretion of the court.

Sec. 18.And be it further enacted, That the act to protect all persons in the United States intheir civil rights, and furnish the means of their vindication, passed April nine, eighteen

hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shallbe enforced according to the provisions of said act.

Sec. 19.And be it further enacted, That if at any election for representative or delegate in theCongress of the United States any person shall knowingly personate and vote, or attemptto vote, in the name of any other person, whether living, dead, or fictitious; or vote morethan once at the same election for any candidate for the same office; or vote at a placewhere he may not be lawfully entitled to vote; or vote without having a lawful right to vote;or do any unlawful act to secure a right or an opportunity to vote for himself or any otherperson; or by force, threat, menace, intimidation, bribery, reward, or offer, or promisethereof, or otherwise unlawfully prevent any qualified voter of any State of the UnitedStates of America, or of any Territory thereof, from freely exercising the right of suffrage,

or by any such means induce any voter to refuse to exercise such right; or compel orinduce by any such means, or otherwise, any officer of an election in any such State orTerritory to receive a vote from a person not legally qualified or entitled to vote; orinterfere in any manner with any officer of said elections in the discharge of his duties; orby any of such means, or other unlawful means, induce any officer of an election, or officerwhose duty it is to asc

Shelby County v. Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement...

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Transcript of Shelby County v. Holder: An Historical Exploration of the Fifteenth Amendment and its Enforcement...