Fifteenth Amendment, Section 2:

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

Federal remedial legislation related to the Fifteenth Amendment1 culminated in the passage of the Voting Rights Act of 1965 and its amendments.2 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

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 The Court held that Congress could “enforce” the guarantee of the right to vote by any rational means at its disposal.5 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 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 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 Amendments.8

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 The lower court found that the City had engaged in practices without any discriminatory motive, but that its practices had a discriminatory impact.10 The City thus argued that, because the Fifteenth Amendment reached only purposeful discrimination, the Act went beyond Congress’s power.11 The Court held, however, that, even if discriminatory intent was a prerequisite to finding a violation of Section 1 of the Fifteenth Amendment,12 Congress still had authority to proscribe electoral devices that have a discriminatory impact or effect.13 The Court stated:

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 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 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 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

The Court in Shelby County v. Holder,19 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 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 and violating the “fundamental principle of equal sovereignty” among states.22 While the Court acknowledged that the disparate treatment of states under Section 4 could be justified by “unique circumstances,” such as those before Congress at the time of enactment of the Voting Rights Act,23 the Court held that Congress could no longer “distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story” with respect to racial discrimination in covered jurisdictions.24 The Court added, however, that Congress could “draft another formula [for preclearance] based on current conditions” that demonstrate “that exceptional conditions still exist justifying such an ‘exceptional departure from the traditional course of relations between the States and the Federal Government.” 25

In the 2021 case Brnovich v. Democratic National Committee, the Court continued to set limits on the Fifteenth Amendment’s enforcement power as applied through the Voting Rights Act by narrowing the circumstances through which a successful challenge can be brought under Section 2.26 The Court, noting that the decision was its first interpreting a state’s “generally applicable time, place or manner voting rules” under Section 2, distinguished the case from previous challenges brought in the redistricting contexts.27 In upholding two State of Arizona election provisions, restrictions on out-of-precinct voting and third-party ballot collection28 that were challenged as disproportionately burdening minority voters, the Court applied a new version of the “totality of circumstances” test from Thornberg v. Gingles,

, with emphasis on the requirement that an alleged violation of Section 2 show there is not “equal openness” of participation in the election process.29 The Court also provided new “guideposts” that take the form of five specific, but nonexhaustive, circumstances for courts to consider.30

Footnotes

1

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.

2

Voting Rights Act of 1965, Pub. L. No. 89–110, 79 Stat. 437.

3

52 U.S.C. §§ 10303(a), 10303(b).

4

383 U.S. 301 (1966).

5

Id. at 325–26.

6

Id. at 330–31.

7

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).

8

Oregon v. Mitchell, 400 U.S. 112 (1970) (splitting 5-4 on whether Congress could set voting age requirements).

9

446 U.S. 156, 172 (1980).

10

Id.

11

Id. at 173.

12

Cf. City of Mobile v. Bolden, 446 U.S. 55, 60–61 (1980).

13

See City of Rome, 446 U.S. at 173.

14

City of Rome v. United States, 446 U.S. 156, 177 (1980). See also Lopez v. Monterey Cty., 525 U.S. 266 (1999).

15

Codified as amended at 52 U.S.C. §§s 10301, 10303(f)

16

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).

17

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).

18

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).

19

570 U.S. 529 (2013).

20

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).

21

Shelby Cnty., 570 U.S. at 545.

22

Id. at 542 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)). The significance of the principle of equal sovereignty as enunciated in Coyle v. Smith had been considered by the Court in a previous challenge to the Act. See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). Coyle, while based on the theory that the United States “was and is a union of States, equal in power, dignity and authority,” 221 U.S. at 580, was distinguished by the Court in Katzenbach as concerning only the admission of new states and not remedies for actions occurring subsequent to that event. The Court in Shelby County held, however, that a broader principle regarding equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.” Shelby County, 570 U.S. at 544 (citing Nw. Austin, 557 U.S. at 203).

23

Shelby Cnty., 570 U.S. at 545–46 (quoting Katzenbach, 383 U.S. at 334–335).

24

Id. at 546–47, 556.

25

Id. at 545 (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500–01 (1992)).

26

141 S. Ct. 2321 (2021).

27

Id. at 2333 ( “In the years since Gingles, we have heard a steady stream of § 2 vote-dilution cases, but until today, we have not considered how § 2 applies to generally applicable time, place, or manner voting rules.” )

28

Ariz. Rev. Stat. Ann. §§ 16–122, 16–135; § 16–1005(H, I).

29

52 U.S.C. 10301(b); See Brnovich, 141 S. Ct. at 2338 ( “The core of § 2(b) is the requirement that voting be ‘equally open.’ The statute’s reference to equal ‘opportunity’ may stretch that concept to some degree to include consideration of a person’s ability to use the means that are equally open. But equal openness remains the touchstone.” )

30

Brnovich, 141 S. Ct. at 2338–40 (listing “nonexhaustive” circumstances to consider including: (1) the size of the burden imposed by a challenged voting rule, (2) the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982, (3) the size of any disparities in a rule’s impact on members of different racial or ethnic groups, (4) the opportunities provided by a state’s entire system of voting, and (5) the strength of the state interests served by a challenged voting rule); Contra id. at 2362 (Kagan, J., dissenting)