Shelby County v. Holder Brief Amici Curiae

    No. 12-96

In  t h e

S u p r e m e  (E u u rt o f  the ^ m te h  £&t<xie%

Sh e l b y  Co u n t y , A l a b a m a ,
Petitioner,

v.

Eric  H. H o l d e r , J r ., A tt o r n e y  G e n e r a l , et a l .
Respondents.

On Writ of Certiorari to the United States Court of Appeals for 
the District of Columbia Circuit

BRIEF OF THE BRENNAN CENTER 
FOR JUSTICE AT NYU SCHOOL OF LAW AS 

AMICUS CURIAE ITU SUPPORT OF RESPONDENTS

W endy W eiser 
Myrna Perez 
The Brennan  Center for 
Justice at  NYU School of Law  

161 Ave. of the Americas, FI. 12 
New York, New York 10013 
(646) 292-8318

Sidney S. Rosdeitcher 
Pa u l , W eiss, Rifkind , W harton  
& Garrison  LLP 

1285 Ave. of the Americas 
New York, New York 10019 
(212) 373-3000

Paul M. Sm ith*
M ichael B. D eSanctis 
Jessica Ring Amunson  
Caroline D. Lopez 
Jenner & Block  LLP 
1099 New York Ave., NW 
Suite 900
Washington, DC 20001 
(202) 639-6000 
psmith@jenner.com

* Counsel o f Record

Attorneys for Amicus Curiae

mailto:psmith@jenner.com


TABLE OF CONTENTS

TABLE OF CONTENTS................................................ i
TABLE OF AUTHORITIES.........................................iii
INTEREST OF AMICUS CURIAE...............................1
SUMMARY OF ARGUMENT....................................... 2
ARGUMENT.................................................................. 5
I. The Fifteenth Amendment was Designed to

Give Congress Adequate Authority to Protect 
Against, Discrimination in Voting Rights and 
to Ensure Citizens Could Use the Vote to 
Attain the Equality Promised by the Other 
Reconstruction Amendments................................. 5
A. Congress Drafted the Fifteenth 

Amendment to Overcome Deficiencies in 
its Pre-Amendment Legislative Authority
to Protect Citizens’ Voting Rights....................6

B. Congress Viewed the Fifteenth
Amendment as Essential for Achieving 
Racial Equality................................................. 10

II. The Fifteenth Amendment Provides
Congress with Exceptionally Broad Powers
of Enforcement....................................................... 14
A. The Fifteenth Amendment Gave

Congress Primary Enforcement Authority 
for Protecting the Right to Vote..................... 15

B. The Fifteenth Amendment Altered the
Federal-State Balance to Empower 
Congress to Protect a Right of Extreme 
National Importance........................................21



C. Congress’s Decisions About How to 
Enforce the Fifteenth Amendment are 
Entitled to Special Deference, as This
Court Has Long Recognized........................... 23

III. The Fifteenth Amendment Provides
Congress with the Flexibility to Address All
Practices Which Abridge the Right to Vote,
Including Vote Dilution.........................................26
A. The Text and History of the Fifteenth

Amendment Confirm that the Framers 
Understood it to Prohibit All 
Abridgements of the Right to Vote, Not 
Merely Denials of that Right..........................27

B. This Court’s Jurisprudence Confirms the
Framers’ Understanding that the 
Fifteenth Amendment Protects Against 
All Abridgements of the Franchise................31

C. The Voting Rights Act Addresses the 
Same Concerns that Animated the 
Framers of the Fifteenth Amendment and 
is a Valid Exercise of Congress’s Fifteenth

11

Amendment Powers....................................... 35
CONCLUSION............................................................ 38



Ill
TABLE OF AUTHORITIES

Cases

Alexander v. United States, 509 U.S. 544
(1993).................................................................... 32

Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002).............................................................32

B artlett v. Strickland, 556 U.S. 1 (2009)...... 31, 35
B eer v. United States, 425 U.S. 130 (1976).........36
Ex parte Bollman, 8 U.S. (4 Cranch) 75

(1807).................................................................... 20
City o f M obile v. Bolden, 446 U.S. 55................... 34
City o f Rome v. United States, 446 U.S. 156

(1980).................................................................... 36
Gomillion v. Lightfoot, 364 U.S. 339 (i960)... 33, 34
Guinn v. United States, 238 U.S. 347 (1915)...... 32
Gray v. Sanders, 372 U.S. 368 (1963)................... 33
Johnson v. DeGrandy, 512 U.S. 997 (1994)..........31
Lane v. Wilson, 307 U.S. 268 (1939)..................... 32
League o f United Latin American Citizens

v. Perry, 548 U.S. 399 (2005)..............................1
Lopez v. M onterey County, 525 U.S. 266

(1999).................................................................... 36
Marsh v. Chambers, 463 U.S. 783 (1983).............20
M iller v. Johnson, 515 U.S. 909 (1995)................. 36



N orthcross v. Board o f Education o f 
M em phis C ity Schools, 412 U.S. 427 
(1973)....................................................................

N orthw est Austin M unicipal U tility D istrict 
Number One v. Holder, 557 U.S. 193 
(2009).....................................................................

Reno v. B ossier Parish School Board, 520 
U.S. 471 (1997)....................................................

Reno v. B ossier Parish School Board, 528 
U.S. 320 (2000)................................. 31, 32, 34-

Rice v. Cayetano, 528 U.S. 495 (2000).... 14, 34,
Ex parte Siebold, 100 U.S. 371 (1879)...................
Shaw v. Reno, 509 U.S. 630 (1993)........................
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)............................................................. 25,
Thornburg v. Gingles, 478 U.S. 30 (1986)............
United Jewish Organizations o f 

Williamsburgh, Inc. v. Carey,, 430 U.S.
144 (1977)............................................................

United States v. Cruikshank, 92 U.S. 542 
(1876)............................................................. 24,

United States v. M osley, 238 U.S. 383 
(1915)....................................................................

United States v. Saylor, 322 U.S. 385 (1944)......
Wright v. Rockefeller, 376 U.S. 52 (1964)............
Ex parte Yarbrough (The Ku K lux Klan 

Cases), 110 U.S. 651 (1884)..........................6,

iv

31

..1

34

35
35
..6
34

36
31

34

25

33
33
34

23



Constitutional Provisions and Statutes

U.S. CONST, amend. XV, § 1...................................... 3
U.S. CONST, amend. XV, § 2.......................................3
Act of Apr. 20, 1871, ch. 22, 17 Stat. 13...............20
Act of Feb. 28, 1871, ch. 99, 16 Stat. 433............ 19
Act of May 31, 1870, ch. 114, 16 Stat. 140.... 18, 19
An Act for the Admission of the Territory of 

Nebraska into the Union, ch. 36, 14 Stat.
391 (1867)................................................................ 7

An Act to Admit the State of North 
Carolina, South Carolina, Louisiana, 
Georgia, Alabama, and Florida, to 
Representation in Congress, ch. 70, 15 
Stat. 73 (1868)..................................................... 7-8

An Act to Provide for the More Efficient 
Government of the Rebel States, ch. 153,
14 Stat. 428 (1867)................................................. 7

An Act to Regulate the Elective Franchise 
in the District of Columbia, ch. 6, 14 Stat.
375 (1867)................................................................ 7

An Act to Regulate the Elective Franchise 
in the Territories of the United States, 
ch. 15, 14 Stat. 379 (1867).................................... 7

Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 
2006, Pub. L. No. 109-246, 120 Stat. 577

V

2



Legislative Materials

Cong. Globe, 40th Cong., 3d Sess.
(1869)...........................................  10, 12, 16, 28, 30

Cong. Globe, 40th Cong., 3d Sess. app.
(1869)........................ 11, 12, 16, 22, 23, 28, 29, 30

vi

Cong. Globe, 41st Cong., 2d Sess. (1870)...... 17, 18
Extension o f the Voting Rights A ct o f 1965-' 

H earing B efore the Subcomm. on 
Constitutional Rights o f the S. Comm, on 
the Judiciary; 94th Cong. (1975)................ 13, 14

Extension o f the Voting Rights Act-
Hearings B efore the Subcomm. on Civil
and Constitutional Rights o f the H.
Comm, on the Judiciary; 97th Cong.
(1982)......................................................................37

H.R. Rep. No. 89-439 (1965), as reprinted in
1965 U.S.C.C.A.N. 2437......................................26

S. REP. NO. 89-162, pt. 3 (1965), as 
reprinted in 1965 U.S.C.C.A.N. 2508................25

Other Authorities

Vikram D. Amar & Alan E. Brownstein,
The Hybrid N ature o f Political Rights, 50 
Stan. L. Rev. 915 (1998)......................................13

Angela Behrens, Christopher Uggen, & Jeff 
Manza, Ballot M anipulation and the 
M enace o f Negro Dom ination7 Racial 
Threat and Felon Disenfranchisem ent, 
1850-2002, 109 Am. J. Soc. 560 (2003)...... 9



Thomas M. Cooley, Im partial Suffrage 
Established, in II Joseph 
Story, Commentaries on the Constitution 
o f the United States (Melville Madison 
Bigelow, ed., 5th ed. 1891).................................11

Chandler Davidson, The Voting Rights Act- 
A B rief H istory, in Controversies in 
M inority Voting: The Voting Rights A ct 
in Perspective (Bernard Grofman & 
Chandler Davidson eds. 1992)......................... 29

Eric Foner, R econstruction: Am erica’s
Unfinished Revolution, 1863-1877 
(1988)..................................................... 8, 9, 24, 29

Lee W. Form wait, The Camilla M assacre o f 
1868'- Racial Violence as Political 
Propaganda, 71 Ga. Hist. Q. 400 (1987)............8

William Gillette, The Right to Vote-' Politics 
and the Passage o f the Fifteenth  
Am endm ent (1965)............................7, 11, 12, 13

Robert M. Goldman, Reconstruction and 
Black Suffrage-' Losing the Vote in Reese 
and Cruikshank (2001)................................24, 29

Alexander Keyssar, The Right to Vote-' The 
Contested H istory o f Dem ocracy in the 
United States (2000)...........................................29

J. Morgan Kousser, The Voting Rights A ct 
and the Two Reconstructions in 
Controversies in M inority Voting: The 
Voting Rights A ct in Perspective 
(Bernard Grofman & Chandler Davidson, 
eds., 1992).........................................11, 19, 24, 37

vii



9

vm
Charles Lane, The D ay Freedom Died'- The 

Colfax M assacre, the Supreme Court, 
and the B etrayal o f Reconstruction (2008).

John Mabry Mathews, Legislative and 
Judicial H istory o f the Fifteenth  
Am endm ent {1909)......................9, 10, 15, 17, 21

Laughlin McDonald, A Voting Rights 
Odyssey'- Black Enfranchisem ent in 
Georgia (2003).................................................... 8 ,9

VI James Ford Rhodes, H istory o f the 
United States from the Compromise o f 
1850 to the M cKinley-Bryan Campaign o f 
1896 {1906)............................................................ 19

Everette Swinney, Enforcing the Fifteenth  
Amendment, 1870-1877, 28 J. So. Hist.
202 (1962).............................................................. 19

Allen W. Trelease, White Terror•' The Ku 
Klux Klan Conspiracy and Southern 
Reconstruction (1971)............................................8

Richard Vallely, The Two Reconstructions-'
The Struggle for Black Enfranchisem ent 
(2004).............................................................. 13, 28

Gilles Vandal, Rethinking Southern
Violence (2000)........................................................8

Xi Wan, The M aking o f Federal 
Enforcem ent Laws, 1870-1872, 70 Chi.- 
Kent L. Rev. 1013 (1995).................................... 22

Noah Webster, Am erican D ictionary o f the
English Language (1865)................................... 27



INTEREST OF AMICUS CURIA®

Named for the late Associate Justice William J. 
Brennan, Jr., the Brennan Center for Justice at NYU 
School of Law is a not-for-profit, non-partisan public- 
policy and law institute that focuses on issues of 
democracy and justice. Through the activities of its 
Democracy Program, the Brennan Center seeks to 
bring the ideal of representative self-government 
closer to reality by working to eliminate barriers to 
full and equal political participation, and to ensure 
that public policy and institutions reflect the diverse 
voices and interests that make for a rich and 
energetic democracy. The Brennan Center has 
focused extensively on protecting minority voting 
rights, including by authoring a report on minority 
representation and reports on other issues relating 
to voting rights; launching a major, multi-year 
initiative on redistricting; and participating as 
counsel or amicus in a number of federal and state 
cases involving voting and election issues. The 
Brennan Center has submitted amicus curiae briefs 
in a number of Supreme Court cases involving the 
Voting Rights Act, including N orthw est Austin 
M unicipal U tility D istrict No. One v. Holder, 557 
U.S. 193 (2009), and League o f United Latin 
American Citizens v. Perry, 548 U.S. 399 (2005).

1 Letters from the parties consenting to the filing of this brief 
are on file with the Clerk. No counsel for a party authored this 
brief in whole or in part, and no counsel or party made a 
monetary contribution intended to fund the preparation or 
submission of this brief. No person other than amicus curiae or 
its counsel made a monetary contribution to the preparation or 
submission of this brief.



SUMMARY OF ARGUMENT
2

Am icus curiae the Brennan Center for Justice 
submits this brief in support of Respondents urging 
affirmance of the D.C. Circuit’s decision upholding 
the constitutionality of the preclearance and 
coverage provisions — Sections 5 and 4(b) — of the 
Fannie Lou Hamer, Rosa Parks, and Coretta Scott 
King Voting Rights Act Reauthorization and 
Amendments Act of 2006, Pub. L. No. 109-246, 120 
Stat. 577 CVRARA”).

The Court of Appeals and Respondents 
persuasively demonstrate that the evidence of 
racially discriminatory practices in the covered 
jurisdictions is sufficient to show a continuing need 
for the preclearance provisions. The coverage 
formula is likewise justified when viewed in light of 
the deference to which Congress is entitled and the 
system Congress established for modifying coverage 
upon changed circumstances.

In this brief, amicus shows that the history of the 
Fifteenth Amendment supports special deference to 
Congress’s findings. With the Fifteenth Amendment, 
the Framers elevated the right to vote as a central 
concern of the federal government and made 
Congress the primary enforcer of that right. A core 
purpose of the Amendment was to give Congress 
significantly broader, constitutionally-based 
legislative authority to protect citizens’ right to vote 
from racial discrimination.

Soon after the abolition of slavery, Congress 
embarked on legislative efforts to enfranchise the 
newly emancipated former slaves. These efforts



were limited by federalism concerns and were 
frustrated by fierce resistance in the former 
Confederate states. Of particularly grave concern, 
Congress feared it could lose its power to regulate 
voting in the former Confederate states once they 
were readmitted to the Union.

The Fifteenth Amendment was adopted to 
address these problems. To that end, Congress 
crafted two simple, straightforward, and 
interdependent sections. The first section elevated 
protection of the “right of citizens of the United 
States” to vote from all forms of discrimination “on 
account of race, color or previous condition of 
servitude” to constitutional status. U.S. CONST, 
amend. XV, § 1. To give those words their full 
meaning, the second section delegated to Congress 
broad authority to enforce these words by 
“appropriate legislation.” U.S. CONST, amend. XV, § 
2. Congress adopted these sections with the 
conviction that the right to vote was the right on 
which all other rights were founded and was 
therefore indispensable to achieve equality for all 
citizens.

Both Congress and the states recognized that the 
Fifteenth Amendment fundamentally altered the 
balance of power between Congress and the states, 
and gave Congress paramount authority to prohibit 
racially discriminatory practices that denied or 
abridged the right to vote, notwithstanding the 
states’ traditional role in regulating voting and 
elections. This understanding of the broad authority 
the Framers intended to give Congress is confirmed

3



by the vigorous enforcement legislation Congress 
enacted immediately after ratifying the Amendment.

The Reconstruction Congress was well aware that 
the former Confederate states might use various 
stratagems to evade the terms of the Fifteenth 
Amendment. The choice, therefore, to prohibit not 
only those practices that “deny” the right to vote on 
account of race, but also those that abridge it 
reflected the Framers’ purpose to end all practices— 
whatever their form—that might diminish or lessen 
the value of a citizen’s voting rights, including 
specifically dilution of their votes. This Court’s 
subsequent precedent has honored this original 
intent by reading the Fifteenth Amendment’s 
prohibition against “abridgting]” the right to vote to 
encompass protection against vote dilution.

In sum, the history of the Fifteenth Amendment 
confirms that its Framers entrusted to Congress the 
primary responsibility for determining whether and 
what legislation is needed to enforce and give 
meaning to the Amendment’s prohibition of practices 
that deny or abridge the right to vote on account of 
race. In light of that history, Congress’s legislative 
judgment that the evidence is sufficient to justify 
re authorization of the Voting Rights Act s 
preclearance and coverage provisions is entitled to 
special deference.

4



ARGUMENT

I. The Fifteenth Amendment was Designed to 
Give Congress Adequate Authority to Protect 
Against Discrimination in Voting Rights and 
to Ensure Citizens Could Use the Vote to 
Attain the Equality Promised by the Other 
Reconstruction Amendments.

The history leading up to the adoption and 
ratification of the Fifteenth Amendment vividly 
demonstrates that its Framers deliberately chose to 
protect the right to vote as the one right that was 
paramount to the goal of achieving racial equality. 
Congress passed the Fifteenth Amendment 
immediately after the 1868 elections and at the end 
of a two-year period in which it had expanded black 
enfranchisement as far as possible through ordinary 
legislation. The limits imposed on such legislation 
by federalism, pervasive violence, obstructionist 
practices, and the looming readmission of the former 
Confederate states convinced Congress that its 
authority to protect black enfranchisement was 
fragile and tenuous.

Congress responded by passing a constitutional 
amendment that would prohibit practices by the 
states that “denied or abridged” the right to vote “on 
account of race” and would give Congress adequate 
authority to enforce its terms through appropriate 
legislation. Congress adopted the Fifteenth 
Amendment with the solemn understanding that 
protecting the right to vote against racial 
discrimination was indispensable to securing the

5



equality promised by the other Reconstruction 
Amendments, and that the right to vote was the 
right on which all other rights depended. Congress’s 
authority to enforce the Fifteenth Amendment 
should be interpreted in light of that understanding.

A. Congress Drafted the Fifteenth Amendment to 
Overcome Deficiencies in its Pre-Amendment 
Legislative Authority to Protect Citizens’ 
Voting Rights.

In 1867 and 1868, prior to passage of the 
Fifteenth Amendment, Congress enacted a series of 
aggressive statutes designed to extend black male 
enfranchisement as far as Republicans believed 
possible without another constitutional amendment 
— namely, in territories over which Congress had 
plenary control and in the former states of the 
Confederacy then still under federal military 
authority.2 From the beginning, Congress believed 
that the success of voting rights laws depended on 
forceful legislation, including ancillary civil and 
criminal enforcement mechanisms, to ensure that 
those rights could be meaningfully exercised.

6

2 Although U.S. Const, art. I, § 4, and U.S. Const, art. II, § 1, cl. 
4, gave Congress power to regulate federal elections, Congress 
had not frequently used its Article I powers. Congress did not 
pass any regulations of federal elections until 1842 and did not 
pass comprehensive regulations until 1870 as part of the First 
Enforcement Act. See Ex parte Siebold, 100 U.S. 371, 382-84 
(1879); Ex parte Yarbrough (The Ku Klux Klan Cases), 110 
U.S. 651, 662 (1884) (noting that, before the Enforcement Acts, 
Congress had, “through long habit and long years of 
forbearance ... in deference and respect to the states, refrained 
from the exercise of these powers”).



Congress first passed legislation enfranchising 
blacks in the District of Columbia, overcoming a 
presidential veto. See An Act to Regulate the 
Elective Franchise in the District of Columbia, ch. 6, 
14 Stat. 375 (1867); see also William Gillette, The 
Right to Vote- Politics and the Passage o f the 
Fifteenth Am endm ent 30 (1965). Because Congress 
realized that enfranchisement on paper would not 
necessarily produce enfranchisement in practice, it 
also included two sections penalizing interference 
with the voting rights established by the Act. See 14 
Stat. 375, §§ 2, 3. Congress then passed legislation 
enfranchising blacks in other federal territories. See 
An Act to Regulate the Elective Franchise in the 
Territories of the United States, ch. 15, 14 Stat. 379 
(1867); An Act for the Admission of the Territory of 
Nebraska into the Union, ch. 36, 14 Stat. 391, § 3 
(1867).

Most significantly, in the First Reconstruction 
Act, Congress refused to re'admit the former 
Confederate states into the Union unless the states 
amended their constitutions to allow voting by male 
citizens “of whatever race, color, or previous 
condition.” An Act to Provide for the More Efficient 
Government of the Rebel States, ch. 153, 14 Stat. 
428, § 5 (1867) (“First Reconstruction Act”). To 
prevent backsliding, Congress also required that, in 
the future, “the constitutions of neither of [the 
readmitted states] shall ever be so amended or 
changed as to deprive any citizen or class of citizens 
of the United States of the right to vote in said 
State.” An Act to Admit the States of North 
Carolina, South Carolina, Louisiana, Georgia,

7



Alabama, and Florida to Representation in Congress, 
ch. 70, 15 Stat. 73, § 1 (1868). Congress was acutely 
aware that the fragile gains it had achieved could 
easily be rolled back if left unprotected.

Although Congress succeeded in formally
enfranchising blacks throughout the former
Confederacy and federally controlled territories by 
the end of 1868, those legal rights were almost 
immediately undermined by violence, intimidation, 
and obstructionist practices. The period leading up 
to the 1868 election saw one of the greatest waves of 
racial violence in American history. See, e.g., Eric 
Foner, Reconstruction'- Am erica’s Unfinished 
Revolution, 1863-1877 342-44 (1st Perennial Classic 
ed. 2002); Gilles Vandal, Rethinking Southern 
Violence 93-94 (2000); Allen W. Trelease, White 
Terror•' The Ku K lux Klan Conspiracy and Southern 
Reconstruction 101 (1971). The connection between 
violence and suffrage was both explicit and 
pervasive. For example, L.N. Trammell, who 
eventually became president of the Georgia Senate 
when the Democrats gained control in 1871, 
demanded in March 1868 that “‘the negroes should 
as far as possible be kept from the polls,”’ adding 
that “‘the organization of the KKK might effect this 
more than anything else.’” Laughlin McDonald, A  
Voting Rights Odyssey-' Black Enfranchisem ent in 
Georgia 21 (2003); see also Lee W. Form wait, The 
Camilla M assacre o f 1868- Racial Violence as 
Political Propaganda, 71 Ga. Hist. Q. 400, 402-03 
(1987).

The southern resistance did not end once the 
ballots were counted. In 1868, the Klan assassinated

8



a black Republican congressman from Arkansas and 
three black members of the South Carolina state 
legislature. Charles Lane, The D ay Freedom Died-' 
The Colfax M assacre, the Supreme Court, and the 
B etrayal o f Reconstruction 3 (2008). And in the 
summer of 1868, Georgia’s governor—despite the 
State’s ratification of the Fourteenth Amendment— 
asserted that the state constitution did not permit 
blacks to hold legislative office and expelled 32 black 
representatives from the state assembly, prompting 
Congress to place Georgia under military rule. See 
McDonald, Voting Rights Odyssey, at 23.

The Congress that drafted the Fifteenth 
Amendment was well aware of this devastating 
bloodshed and properly understood it as an effort to 
nullify the First Reconstruction Act’s establishment 
of voting rights for southern blacks. See Foner, 
Reconstruction, at 342-44; Angela Behrens, 
Christopher Uggen, & Jeff Manza, Ballot 
M anipulation and the M enace o f N egro Dom ination’-' 
Racial Threat and Felon Disenfranchisem ent, 1850- 
2002, 109 Am. J. Soc. 559, 560 (2003).

The Congress drafting the Fifteenth Amendment 
feared that as the Confederate states began to return 
to the Union, and Congress lost plenary control over 
these areas, Congress’s power to protect black voting 
rights in those states would vanish. “Now that most 
of the ex-Confederate States had been in measure 
rehabilitated it was realized that the practically 
complete control which Congress had exercised over 
them was gradually slipping away and must 
eventually come to an end.” John Mabry Mathews, 
Legislative and Judicial H istory o f the Fifteenth

9



Am endm ent 20 (1909). In theory, the former 
Confederate states were bound in perpetuity never to 
amend their constitutions to disenfranchise their 
citizens on account of race, but “ [t]he fear was freely 
expressed however that the theory of the equality of 
the States was too deeply rooted in our constitutional 
system ever to make the observance of such a 
condition practically enforceable.” Id. at 18. At a 
time when enforcement was most needed, Congress 
thus faced the possibility of losing its legal authority 
to protect the right to vote.3

The Fifteenth Amendment was therefore 
necessary to “supplyQ a new basis for the 
continuance of congressional control over the 
suffrage conditions of the Southern States. This 
basis could be surely and safely supplied only by 
means of a new grant of power from the nation in the 
form of a suffrage amendment to the Constitution 
which should contain the authorization to Congress 
to enforce its provisions.” Mathews, H istory o f the 
Fifteenth Am endm ent at 21.

B. Congress Viewed the Fifteenth Amendment as 
Essential for Achieving Racial Equality.

The urgency for adopting the Fifteenth 
Amendment to remedy existing deficiencies in 
Congress’s authority to protect voting rights 
reflected Congress’s view that the franchise was

10

3 Congressional Republicans also believed that the Fifteenth 
Amendment was necessary to empower Congress to override 
referenda opposing suffrage in Northern states and 
enfranchise blacks in the loyal states that had never seceded. 
See, e.g., Cong. Globe, 40th Cong., 3d Sess. 555 (1869).



“ [t]he centerpiece of Reconstruction.” J. Morgan 
Kousser, The Voting Rights A ct and the Two 
Reconstructions, in Controversies in M inority 
Voting■' The Voting Rights A ct in Perspective 135, 
136 (Bernard Grofman & Chandler Davidson eds. 
1992). Through the Fourteenth Amendment, 
Congress and the states had already guaranteed 
equal protection generally. But the Framers of the 
Fifteenth Amendment singled out the right to vote 
for special protection. They recognized the right to 
vote as a fundamental right needed to secure all 
others.

“Without the elective franchise,” they asked, 
“what insurance has a man of his life, what security 
for his liberties, what protection in his pursuit of 
happiness?” Cong. Globe, 40th Cong., 3d Sess. app. 
100 (1869) (statement of Rep. Hamilton). Congress 
knew that the ballot box could ultimately provide 
more lasting protections than piecemeal legislation: 
“ [T]he ballot was absolutely essential to [the] 
protection against oppression and wrong in a 
thousand forms where the general law would be 
powerless.” Thomas M. Cooley, Im partial Suffrage 
Established, in II Joseph Story, Commentaries on 
the Constitution o f the United S tates 718 (Melville 
Madison Bigelow, ed., 5th ed. 1891). “A man with a 
ballot in his hand is the master of the situation. He 
defines all his other rights. What is not already 
given him, he takes.... The Ballot is opportunity, 
education, fair play, right to office, and elbow-room.” 
William Gillette, R etreat from Reconstruction, 1869- 
187922> (1979) (quoting Wendell Phillips).

11



In drafting the Fifteenth Amendment, the 
Framers sought to leave nothing to chance, ensuring 
that this foundational principle of electoral equality 
received full constitutional protection, both in theory 
and in practice. Recognizing that “ [i]t is difficult by 
any language to provide against every imaginary 
wrong or evil which may arise,” the Framers sought 
to create a broad amendment that would successfully 
prevent discrimination in all facets of voting. Cong. 
Globe, 40th Cong., 3d Sess. 725 (1869) (statement of 
Rep. Pile).

To ensure that Congress would be able to protect 
the right to vote against evolving threats, the two 
clauses of the Fifteenth Amendment were designed 
to serve complementary purposes. First, the 
substantive guarantee in the first section of the 
Amendment would consolidate the formal gains that 
had been previously made and ensure that they were 
not rolled back by future electoral majorities. The 
Amendment would set a constitutional floor to “make 
it impossible, if the Democrats ever returned to 
power in Washington, to repudiate Negro voting, 
North or South.” Gillette, Right to Vote, at 73! see 
also Cong. Globe, 40th Cong., 3d Sess. app. 97 (1869) 
(statement of Rep. Bowen) (“This rule ... should be 
established by constitutional amendment 
otherwise it will be subject to change, and thus of 
uncertain duration and use.”); id. at app. 102 
(statement of Rep. Broomall) (“Laws may be 
repealed, and it is not advisable that so important a 
principle of republican government should be left to 
the caprices of party. Its proper place is in the 
organic law.”). The first section also extended

12



protections of voting rights against interference by 
the states, notwithstanding the states’ role in 
administering elections.

Second, the enforcement power provided in the 
second section of the Amendment would give 
Congress continuing constitutional power to protect 
black suffrage: It gave Congress “a general
commission to make detailed statutes” protecting 
against racial discrimination in voting. Richard 
Vallely, The Two Reconstructions-' The Struggle for 
Black Enfranchisem ent 103 (2004). The power given 
to Congress to protect the franchise thus provided an 
“alternative to ... the continued military occupation 
of the South.” Vikram D. Amar & Alan E.
Brownstein, The Hybrid N ature o f Political Rights, 
50 Stan. L. Rev. 915, 940-41 (1998). And it gave 
Congress power to protect the right to vote in the 
North, where elections had been under the exclusive 
control of the states. Gillette, Right to Vote, at 73.

By codifying a prohibition on racial 
discrimination in voting as part of the Constitution, 
the Framers of the Fifteenth Amendment thus 
singled out the right to vote as a uniquely important 
right. With the Fifteenth Amendment, Congress 
enshrined the right to vote as a centerpiece of 
Reconstruction and as a foundational constitutional 
guarantee of racial equality.4 By creating a

13

4 The debates surrounding the passage of the Fifteenth 
Amendment make clear that the final version of the 
Amendment was also understood to protect racial groups other 
than those of African descent. See Extension o f the Voting 
Rights A ct o f 1965-' Hearing Before the Subcomm. on 
Constitutional Rights o f the S. Comm, on the Judiciary, 94th



nationwide ban on racial discrimination in voting 
and providing Congress a new source of power to 
enforce that right, the provisions of the Fifteenth 
Amendment were designed to ensure that recent 
gains in enfranchisement would be doubly protected, 
both from future electoral rollbacks and from 
attempts to undermine the formal promise of racial 
equality in voting through more invidious methods.
II. The Fifteenth Amendment Provides Congress 

with Exceptionally Broad Powers of 
Enforcement.

Conscious of the importance and fragility of the 
right to vote, the Framers used the Fifteenth 
Amendment to confer extensive powers upon 
Congress to prevent racial discrimination in voting. 
The Amendment entrusted Congress with primary 
authority for enforcement as well as sweeping 
powers to accomplish this task. With the 
Amendment, the Framers consciously altered the 
balance of federalism, providing powers to Congress

14

Cong. 698 (1975) (noting that some legislators opposed the 
Fifteenth Amendment precisely because it would protect more 
than just blacks and that California and Oregon refused to 
ratify the Amendment because of “fear that it would lead to 
enfranchisement of Chinese Persons”). Indeed, the 
Reconstruction Senate “twice rejected ... a provision which 
stated that: ‘Citizens ... of African descent shall have the same 
right to hold office ... as other citizens.’” Id. Additionally, this 
Court’s precedent establishes that Latinos, Asian Americans, 
and Native Americans are protected by the Fifteenth 
Amendment. See Rice v. Cayetano, 528 U.S. 495, 514 (2000) 
(holding that because “ [alncestry can be a proxy for a race,” 
discrimination based on common ancestry or culture violates 
the Fifteenth Amendment).



that traditionally had been reserved to the states. 
Mindful of this commitment of broad power to 
Congress, this Court has, ever since the 
Amendment’s passage, recognized that
Congressional action under the Fifteenth 
Amendment is entitled to special deference.

A. The Fifteenth Amendment Gave Congress 
Primary Enforcement Authority for Protecting 
the Right to Vote.

The Fifteenth Amendment vested Congress with 
primary authority for enforcing the new
constitutional guarantee against racial
discrimination in voting, and with wide remedial 
powers to achieve that goal. Based upon its 
experience with prior efforts to enfranchise blacks in 
the District of Columbia, federal territories, and 
former Confederate states, Congress knew that the 
Fifteenth Amendment would require a vigorous 
enforcement mechanism. “ [T]here was never any 
difference of opinion among the friends of the 
measure, either as to the desirability of including ... 
[an enforcement provision] in the Amendment or as 
to the form which it should assume.” Mathews, 
H istory o f the Fifteenth Amendment, at 36 n.55.

Indeed, Republicans who preferred a broader 
constitutional amendment were willing to accept a 
narrower version of the first section of the Fifteenth 
Amendment precisely because the second section 
would provide Congress with additional enforcement 
power to transform the negatively phrased first 
section into a positive guarantee:

15



If there were nothing at all here except the 
first section I might see a great deal of weight 
in [a concern that the first section’s purely 
negative formulation leaves states able to 
devise indirect means of disenfranchising 
African-Americans]. But there happens to be 
added to that a second section, giving to 
Congress the express power to enforce the 
prohibition. The result of the whole matter is 
that if we amend this first section [to a form 
almost identical to the one ultimately 
enacted], ... by the second section Congress is 
invested with express authority to enforce the 
limitation.

Cong. Globe, 40th Cong., 3d Sess. 727 (1869) 
(statement of Rep. Bingham); see also id. at 1625 
(statement of Sen. Howard).

Opponents of the Amendment similarly noted 
that the enforcement clause would give Congress 
substantial discretion to determine the scope of its 
own enforcement power. See id. at app. 163 
(statement of Sen. Saulsbury) (warning that 
enforcement clause language “leav[es] [the] 
legitimate and proper meaning [of ‘appropriate’ 
legislation] to be determined by each particular head 
in this Senate Chamber and in the House of 
Representatives” and asking ” [u]nder the exercise of 
the power to carry this amendment into execution by 
appropriate legislation what cannot you do?”).

Almost immediately after the Amendment was 
ratified, Congress enacted the Enforcement Act of 
1870, which reflected Congress’s belief that the

16



Amendment was designed to give Congress broad 
enforcement powers to pass affirmative legislation 
protecting against racial discrimination in voting. 
See Mathews, H istory o f the Fifteenth Amendment, 
at 78-79. Supporters of the bill, almost all of whom 
had voted for the Amendment sixteen months 
earlier, invoked Congress’s broad power when 
discussing the Act. For example, Senator Carpenter 
stated that “ [tjhis amendment to the Constitution is 
ample and full, and clothes Congress with all power 
to secure the end which it declares shall be 
accomplished.” Cong. Globe, 41st Cong., 2d Sess. 
3563 (1870). Representative Davis similarly argued 
that “ [i]n amending the Constitution of the United 
States the people have seen fit to clothe Congress 
with the power to enforce by appropriate 
legislation.... No broader language could be adopted 
than this with which to clothe Congress with power.” 
Id. at 3882.

Senator Morton referred to “the spirit and the 
true intent of the fifteenth amendment” while 
rebutting arguments that the 1870 enforcement 
legislation intruded too far on the sovereignty of the 
states. Id. at 3670. Recalling the 1868 debates, 
Morton argued that the Fifteenth Amendment’s 
purpose was to ensure that “the colored man, so far 
as voting is concerned, shall be placed upon the same 
level and footing with the white man, and that 
Congress shall have the power to secure him that 
right.... We know that the second Section was put 
there for the purpose of enabling Congress itself to 
carry out the provision. It was not to be left to State 
legislation.” Id. And Senator Howard similarly

17



warned that the Amendment should not be given a 
“narrow construction” that would prevent Congress 
from “apply[ing] the remedies which are proper in 
the case to punish individuals for interrupting, 
preventing, delaying, or hindering the colored man 
from the peaceful and free exercise of his right of 
suffrage! which was the great object we had in view 
in proposing this amendment to the people of the 
United States.” Id. at 3655.

Congress ultimately enacted seven suffrage- 
related sections as part of the 1870 Enforcement Act, 
powerfully demonstrating that the Forty-First 
Congress viewed the Fifteenth Amendment’s 
enforcement clause as a substantial source of 
authority. See Act of May 31, 1870, ch. 114, 16 Stat. 
140. Section 1 of the Enforcement Act simply 
restated the core principle behind the Fifteenth 
Amendment without creating any enforceable rights. 
But each of the other six sections contained an 
aggressive, affirmative mandate that was national in 
scope. Sections 2 and 3 of the Enforcement Act 
prohibited discrimination in voter registration and 
provided remedies to voters for any such violation. 
See 16 Stat. 140, §§ 2, 3. Sections 4, 5, and 6 
targeted a broad range of methods of voter 
intimidation, ranging from outright violence, id. § 4, 
to retaliation by landlords and employers, id. § 5, to 
conspiracies to “threaten, or intimidate any citizen 
with intent to prevent or hinder his free exercise and 
enjoyment of any right or privilege granted or 
secured to him by the Constitution or laws of the 
United States, or because of his having exercised the 
same,” id. § 6 (emphasis added). Finally, Section 23

18



permitted a candidate for office who lost “by reason 
of the denial to any citizen or citizens ... of the right 
to vote, on account of race, color, or previous 
condition of servitude” to sue to “recover possession” 
of the office, thereby nullifying a state election. Id. § 
23. Taken together, this set of bold provisions makes 
clear that the contemporary Congress was not 
“constrained by traditional theories of federalism.” 
Kousser, The Voting Rights A ct and the Two 
Reconstructions, at 139. Congress understood its 
enforcement power to be extremely broad, 
encompassing a range of prophylactic measures not 
compelled by the first clause of the Fifteenth 
Amendment, but which Congress nonetheless 
deemed necessary to achieve the Amendment’s 
objectives.

A  year after passing the 1870 Enforcement Act, 
Congress went even further, amending Section 20 of 
the Act to place congressional elections more firmly 
under federal control. Act of Feb. 28, 1871, ch. 99, 16 
Stat. 433 (“1871 Enforcement Act”). The
amendments provided for the appointment of federal 
observers with detailed supervisory powers over the 
electoral process, from registration to the 
certification of returns. Id. § % see also VI James 
Ford Rhodes, H istory o f the United States from the 
Compromise o f 1850 to the M cKinley-Bryan 
Campaign o f 1896 423 (1906). These broad 
enforcement acts “were comprehensive ... but the fact 
is that they did not go beyond the intent of the 
Fifteenth Amendment.” Everette Swinney, 
Enforcing the Fifteenth Amendment, 1870-1877, 28 
J. So. Hist. 202, 204 (1962).

19



In addition to the provisions in the 1871 
Enforcement Act, the Ku Klux Klan Act of 1871 
authorized the President to deploy the army to 
respond to “insurrection, domestic violence, unlawful 
combinations, or conspiracies” that had the effect of 
depriving citizens of “any of the rights, privileges, or 
immunities, or protection, named in the Constitution 
and secured by this act,” including the Fifteenth 
Amendment’s guarantee of equal suffrage. Act of 
Apr. 20, 1871, ch. 22, 17 Stat. 13, § 3.

These enforcement laws, which were enacted by 
substantially the same Congress that drafted the 
Fifteenth Amendment, are entitled to special weight 
in construing the Amendment. Like the first 
Congress in 1789, the Congress in 1870 “must have 
felt, with peculiar force, the obligation of providing 
efficient means by which [a] great constitutional 
privilege should receive life and activity.” Ex parte 
Bollman, 8 U.S. (4 Cranch) 75, 95 (1807); cf. Marsh v. 
Chambers, 463 U.S. 783, 790 (1983) (“An act ‘passed 
by the first Congress assembled under the 
Constitution, many of whose members had taken 
part in framing that instrument, ... is
contemporaneous and weighty evidence of its true 
meaning.”’ (quoting Wisconsin v. Pelican Ins. Co., 
127 U.S. 265, 297 (1888))). The enforcement 
legislation reflects the contemporary understanding 
that the Fifteenth Amendment entrusted to 
Congress primary responsibility for protecting 
against racial discrimination in voting and vested 
Congress with all the powers necessary for 
accomplishing that task.

20



B. The Fifteenth Amendment Altered the 
Federal-State Balance to Empower Congress 
to Protect a Right of Extreme National 
Importance.

By vesting Congress with broad powers of 
enforcement, the Fifteenth Amendment radically 
altered the balance of power between the federal 
government and the states with respect to regulation 
of the franchise. The Amendment was passed 
against a status quo in which the states had 
exercised control over the franchise and Congress’s 
control, as a practical matter, had been limited to 
protecting the right to vote in federal territories. As 
late as 1866, even among northern Republicans, 
“ [t]here was a feeling too widespread to be safely 
antagonized that the regulation of the suffrage was a 
matter properly belonging to the state governments.” 
Mathews, H istory o f the Fifteenth Amendment, at 
12. The Fifteenth Amendment broke with that 
status quo by transferring ultimate power to protect 
against racial discrimination in voting away from the 
states and to the federal government—even with 
respect to the states’ own elections. See id. at 36. 
The Congress that passed the Fifteenth Amendment 
and the states that ratified it determined that the 
traditional federal-state balance had been 
insufficient to protect against racial discrimination 
in voting.

Supporters and opponents of the Fifteenth 
Amendment recognized that the Amendment would 
transfer to the federal government responsibility 
over an area that had once been left exclusively to 
the states. For example, Senator John Pool, a strong

21



supporter of the Amendment, explained that: “If a 
State by omission neglects to give every citizen 
within its borders a free, fair, and full exercise and 
enjoyment of his rights, it is the duty of the United 
States Government to go into the State.” Xi Wang, 
The M aking o f Federal Enforcem ent Laws, 1870- 
1872, 70 Chi.-Kent L. Rev. 1013, 1030 (1995). 
Senator Bayard, an opponent of the proposed 
Amendment, contrasted the power provided by the 
Amendment with the autonomy states had 
previously enjoyed over their own elections: “The
Federal Government in the past has neither 
attempted to usurp the power as within the limits of 
the Constitution, nor has it been yielded by the 
States or their people.” Cong. Globe, 40th Cong., 3d 
Sess. app. 166 (1869).

Even some abolitionists and former Republicans 
protested the Amendment’s intrusion on principles of 
state sovereignty. James Doolittle, a Wisconsin 
Republican who supported the abolition of slavery 
but believed questions of voting were best left to the 
states, predicted that the power to enforce the 
Fifteenth Amendment would give Congress complete 
control over state elections:

[TJhe power to enforce it of necessity implies 
power over the elections of the States. In 
order to give the colored man of the States the 
right to vote at the elections in the States, to 
secure to his vote a fair count, and to make 
sure that if his vote be counted and determine 
the result that the person elected shall have 
the office, will draw to this Government the

22



power to control the elections themselves. It is 
impossible to separate the two.

Id. at app. 151.

Thus, both proponents and opponents of the 
Amendment understood it to dramatically alter the 
status quo by establishing the federal government, 
and Congress in particular, as the ultimate protector 
against racial discrimination in voting. As this 
Court recognized soon after the Amendment’s 
passage^ “The fifteenth amendment of the 
constitution, by its limitation on the power of the 
states in the exercise of their right to prescribe the 
qualifications of voters in their own elections, and by 
its limitation of the power of the United States over 
that subject, clearly shows that the right of suffrage 
was considered to be of supreme importance to the 
national government, and was not intended to be left 
within the exclusive control of the states.” Ex parte 
Yarbrough (The Ku Klux Klan Cases), 110 U.S. 651 
664 (1884).

C. Congress’s Decisions About How to Enforce 
the Fifteenth Amendment are Entitled to 
Special Deference, as This Court Has Long 
Recognized.

As Yarbrough shows, this Court has long 
recognized that the Fifteenth Amendment vested 
Congress with broad powers to protect against racial 
discrimination. In the years immediately following 
the Amendment’s ratification, this Court shared the 
contemporary understanding that the Fifteenth 
Amendment represented a major transfer of 
authority from the states to the federal government

23



and vested Congress with broad powers to enforce 
the Amendment’s prohibition on racial 
discrimination in voting. Even as it placed severe 
restrictions on Congress’s efforts to enforce the 
Reconstruction Amendments in the 1870s and 1880s, 
the Court signaled that Congress’s authority to 
enforce the Fifteenth Amendment was greater than 
its authority to enforce the Fourteenth Amendment.

The Court’s decision in United States v. 
Cruikshank, 92 U.S. 542 (1876), illustrates its 
differing approaches to the Fourteenth and Fifteenth 
Amendments. The Court in Cruikshank overturned 
the convictions of white supremacists who led the 
infamous Colfax Massacre, “the bloodiest single act 
of carnage in all of Reconstruction,” Foner, 
Reconstruction, at 530, and “the largest murder of 
African Americans in American history,” Kousser, 
The Voting Rights A ct and the Two Reconstructions, 
at 160. While the decision led to “disastrous” 
interference with Reconstruction, for example by 
imposing insurmountable burdens of proof on the 
prosecution, id., it actually upheld the 
constitutionality of the Enforcement Acts and 
affirmed that Congress had particularly broad 
authority with respect to the Fifteenth Amendment. 
See Robert M. Goldman, Reconstruction and Black 
Suffrage■ Losing the Vote in Reese and Cruikshank 
106 (2001) (noting that Cruikshank was a
surprisingly “narrow” decision that “clearly and 
explicitly confirmed congressional authority” to 
protect against racial discrimination in voting).

The Cruikshank Court pointedly did not 
invalidate Congress’s power to protect equal

24



suffrage, and it affirmed that the Fifteenth 
Amendment (unlike the Fourteenth) created “a new 
constitutional right” that Congress could protect 
against individual interference. Cruikshank, 92 U.S. 
at 555. The Fifteenth Amendment, the Court 
explained, had established the “exemption from 
discrimination in the exercise o f’ the right to vote as 
a “necessary attribute of national citizenship.” Id. 
Congress had primary responsibility for protecting 
against racial discrimination in voting because “ [t]he 
right to vote in the States comes from the States; but 
the right of exemption from the prohibited 
discrimination comes from the United States.” Id. at 
556. And within this intersection of race and voting, 
primary responsibility was vested in Congress, not 
the states.

This Court’s early interpretation of the
Amendment thus shows that Congress’s Fifteenth 
Amendment power is sweeping, and that so long as 
Congress is acting to prevent racial discrimination in 
voting, this Court will defer to Congress’s judgment 
about how best to do that. Thus, “[o]n the rare 
occasions when the Court has found an
unconstitutional exercise of [Fifteenth Amendment] 
powers, in its opinion Congress had attacked evils 
not comprehended by the Fifteenth Amendment.” 
South Carolina v. Katzenbach, 383 U.S. 301, 326 
(1966). Indeed, when Congress passed the Voting 
Rights Act in 1965, the Senate and House Reports 
noted that “ [n]o statute confined to enforcing the 
15th amendment exemption from racial 
discrimination in voting has ever been voided by the 
Supreme Court.” S. Rep. No. 89-162, at 17 (1965);

25



H.R. Rep. No. 89-439, at 17 (1965). That remains 
true today.
III. The Fifteenth Amendment Provides Congress 

with the Flexibility to Address All Practices 
Which Abridge the Right to Vote, Including 
Vote Dilution.

The language and history of the Fifteenth 
Amendment confirms that Congress, in 
reauthorizing Section 5 and Section 4(b) of the 
Voting Rights Act, properly considered current 
evidence of vote dilution through racial 
gerrymandering to justify the continued need for 
these sections. The Framers of the Fifteenth 
Amendment considered vote dilution an abridgement 
of the right to vote that diminished the franchise’s 
value and potency.

The Framers understood the Fifteenth 
Amendment as having a broad substantive sweep, 
prohibiting not only denials of the right to vote but 
also more indirect abridgements of the franchise, 
such as vote dilution. Indeed, the text of the 
Amendment confirms that its Framers were 
interested not only in protecting against outright 
denials of the right to vote, but also in guarding 
against any “abridge [ment]” of the right. Honoring 
the intentions of the Framers, this Court has 
continually confirmed that the Fifteenth Amendment 
confers upon Congress broad, flexible powers to 
address all practices which diminish or devalue the 
right to vote. In light of this history, the VRARA is a 
valid exercise of Congress’s extensive enforcement

26



powers and is fully consistent with the intent of the 
Fifteenth Amendment’s drafters.

A. The Text and History of the Fifteenth 
Amendment Confirm that the Framers 
Understood it to Prohibit All Abridgements of 
the Right to Vote, Not Merely Denials of that 
Right.

Both the text and the history of the Fifteenth 
Amendment show that the Framers were concerned 
with far more than outright denials of the franchise 
on the basis of race. The Framers consciously chose 
to prohibit both denials and abridgments of the right 
to vote. For the Framers and their contemporaries, 
an abridgment of the right to vote implied a 
diminution of the right to vote that fell short of a 
denial. Indeed, contemporary dictionary definitions 
demonstrate that to “abridge” means something 
quite different than to “deny.” The 1865 edition of 
Noah Webster’s authoritative American Dictionary o f 
the English Language defines “abridge” as “[t]o 
lessen! to diminish; as to abridge labor! to abridge 
power or rights.” Noah Webster, An American 
Dictionary o f the English Language 6 (1865). By 
using the word “abridge,” in addition to the word 
“deny” in the Fifteenth Amendment, the Framers 
plainly sought to reach acts of interference with the 
right to vote that did not result in a complete denial 
of the franchise, including through dilution of the 
vote that “diminishes” and ‘lessens” the franchise’s 
effectiveness.

As Representative George Boutwell, who 
managed the Amendment in the House of

27



Representatives emphasized, “The amendment 
which we propose secures the people against any 
abridgment o f their electoral pow er; either by the 
United States or by the States.” Cong. Globe, 40th 
Cong., 3d Sess. 560 (1869) (statement of Rep. 
Boutwell) (emphasis added). See also Vallely, The 
Two Reconstructions, at 102.

Reflecting this broad understanding of 
disenfranchisement as reaching abridgements of the 
right to vote that fell short of outright denial, the 
Framers of the Fifteenth Amendment closely tied the 
right to vote to representation. Of the former slaves, 
one Senator noted: “ [W]e must sooner or later see to 
it that they are citizens possessed of the right to vote 
and to be represented in the legislative bodies who 
have control of their persons and their property.” 
Cong. Globe, 40th Cong., 3d Sess. 986 (1869) 
(statement of Sen. Howard). In the eyes of the 
Framers, the Amendment would provide the former 
slave not merely a nominal vote, but also a real voice 
in the political process, and thus “place in the hand 
of the black man of Georgia a rod of power before 
which all politicians quail.” Cong. Globe, 40th Cong., 
3d Sess. 1629 (1869) (statement of Sen. Stewart).

The Framers of the Fifteenth Amendment were 
well aware of the problems of vote dilution through 
gerrymandering as a means of abridging the right to 
vote. In debates concurrent with the passage of the 
Fifteenth Amendment, members of the Fortieth 
Congress discussed their concerns about the 
problems of gerrymandering as a means of diluting 
the vote. See, e.g., Cong. Globe, 40th Cong., 3d Sess. 
app. 268-69 (1869) (Report of Sen. Buckalew). They

28



worried that redistricting inherently “secure [s] an 
unjust measure of power to [its] authors, and it may 
be expected that each successive district 
apportionment will be more unjust than its 
predecessor.” Id. at 269. This concern, which was 
initially focused on partisan gerrymandering, grew 
as the first racial gerrymanders began to appear 
during and immediately after Reconstruction in the 
former Confederate states and the neighboring 
border states. See, e.g., Goldman, Reconstruction 
and Black Suffrage, at 65; Alexander Keyssar, The 
Right to Vote- The Contested H istory o f Democracy 
in the United States 105 (2000); Chandler Davidson, 
The Voting Rights Act'- A B rief History, in 
Controversies in M inority Voting- The Voting Rights 
A ct in Perspective 7, 10 (Bernard Grofman & 
Chandler Davidson eds. 1992). As early as 1867, 
Maryland “reoriented representation toward the 
plantation counties at the expense of Baltimore and 
the small farming regions to its north and west” as 
part of an “ingenious method □ of limiting black 
voting power.” Foner, Reconstruction, at 422. In 
Mississippi, “Redeemers concentrated the bulk of the 
black population in a ‘shoestring’ Congressional 
district running the length of the Mississippi River, 
leaving five others with white majorities.” Id. at 590.

For the Framers, this gerrymandering and vote 
dilution represented a form of disenfranchisement, 
trampling on minority rights. In the partisan 
context, members of Congress spoke of “the entire 
disenfranchisement of minorities, which is done in 
almost every State by gerrymandering,” and noted 
that, “ [t]he disenfranchisement suffered through one

29



decade by a political party may be repeated upon it 
in the next with increased severity.” Cong. Globe, 
40th Cong., 3d Sess. app. 212, 269 (1869) (statement 
of Rep. Ashley, Report of Sen. Buckalew). For the 
authors of the Fifteenth Amendment, the right to 
vote did not exist in isolation, but rather was closely 
tied to the district in which one voted. Through 
districting, they realized, a majority could effectively 
deprive a minority of the franchise. Thus, the 
Framers understood that the “elective franchise” 
encompassed “the right to vote by ballot in 
convenient election districts.” Cong. Globe, 40th 
Cong., 3d Sess. 1226 (1869) (statement of Rep. 
Lawrence) (emphasis added).

Opponents of the Fifteenth Amendment shared 
this understanding of disenfranchisement, arguing 
perversely that black suffrage would dilute the votes 
of the white population, and thus disenfranchise the 
nation’s Anglo citizens. “If we introduce these votes 
which are to be cast” they noted, “it is an injury, a 
positive injury, to those who have the right to vote ... 
it impairs and weakens the weight and force of the 
legal votes which are cast.” Cong. Globe, 40th Cong., 
3d Sess. 910 (1869) (statement of Sen. Vickers).

Thus, the text and contemporaneous history of 
the Fifteenth Amendment show that the Framers 
were concerned with the problems of gerrymandering 
and vote dilution as an abridgement of the right to 
vote.

30



B. This Court’s Jurisprudence Confirms the 
Framers’ Understanding that the Fifteenth 
Amendment Protects Against All 
Abridgements of the Franchise.

The last century of this Court’s jurisprudence 
confirms what is manifest in the history and text of 
the Fifteenth Amendment: The Fifteenth
Amendment reaches not only outright denials of 
access to the ballot box, but also more indirect 
abridgments of the franchise. This Court has made 
clear that assessment of whether a restriction 
“abridge [s]” the right to vote under the Fifteenth 
Amendment requires a comparison “with a 
hypothetical alternative ... to what the right to vote 
ought to b e” Reno v. Bossier Parish Sch. Bd. 
(Bossier II), 528 U.S. 320, 334 (2000) (emphasis in 
original).

This broad reading of “abridge” as a comparison 
to the ideal version of the right to vote accords with 
the Framers’ original understanding of the term and 
comports with this Court’s interpretation of “abridge” 
more generally in the voting rights context as 
encompassing infringements of a protected right that 
are something less than an outright denial. Notably, 
this Court has interpreted the parallel language of 
Section 2 of the Voting Rights Act, which “track[s], in 
part, the text of the Fifteenth Amendment,” Bartlett 
v. Strickland, 556 U.S. 1, 10 (2009), to prohibit 
indirect interference with the right to vote, primarily 
through vote dilution. See e.g., Thornburg v. Gingles, 
478 U.S. 30 (1986); Johnson v. DeGrandy, 512 U.S. 
997 (1994)/ see also Northcross v. Bd. o f Educ. O f 
Memphis City Schs., 412 U.S. 427, 428 (1973)

31



(stating that the similarity in the language of two 
provisions is “a strong indication that the two 
statutes should be interpreted pari passu”) .5

Just as this Court’s precedent has given full 
meaning to the prohibition against any 
“abridge[ment]” of the right to vote, so too it has 
confirmed the Framers’ understanding of “what the 
right to vote ought to be,” Bossier II, 528 U.S. at 334, 
both before and after the passage of the Voting 
Rights Act. Throughout the course of the last 
century, this Court’s Fifteenth Amendment 
jurisprudence prohibited indirect methods of racial 
discrimination in voting. As early as Guinn v. 
United States, which struck down an Oklahoma 
grandfather clause, this Court has noted that the 
Fifteenth Amendment extends far beyond “express 
words of ... exclusion.” 238 U.S. 347, 364 (1915). 
“The Amendment nullifies sophisticated as well as 
simple-minded modes of discrimination,” reaching all 
“contrivances by a state to thwart equality in the 
enjoyment of the right to vote by citizens of the 
United States regardless of race or color.” Lane v. 
Wilson, 307 U.S. 268, 275 (1939).

32

5 Similarly, in the context of the First Amendment, this Court 
has read the term “abridge” to include restrictions on speech 
that fall far short of outright prohibition of speech. See 
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002) 
(noting that government action can “abridglel the freedom of 
speech ... in many ways” including through “overbroad laws 
that chill speech”) (internal quotation marks omitted); 
Alexander v. United States, 509 U.S. 544, 566 (1993) (Kennedy, 
J., dissenting) (observing that government action “may abridge 
speech in a direct way by suppressing it, or in an indirect way 
by chilling its dissemination”).



In keeping with the Framers’ intentions, this 
Court has long recognized that these prohibited 
“contrivances” include the practice of diluting 
minority votes via improper vote counting. In 
affirming a conviction for the refusal to count valid 
ballots, this Court explained that “the right to have 
one’s vote counted is as open to protection by 
Congress as the right to put a ballot in a box.” 
United States v. Mosley, 238 U.S. 383, 386 (1915); 
see also United States v. Saylor, 322 U.S. 385, 388 
(1944) (affirming conviction for ballot box stuffing). 
In the one-person, one-vote context, this Court has 
expressly noted that “[i]f a State in a statewide 
election weighted ... the white vote more heavily 
than the Negro vote,” such action would “denyQ or 
abridgte] a Negro’s right to vote” in violation of the 
Fifteenth Amendment. Gray v. Sanders, 372 U.S. 
368, 379 (1963). “None could successfully contend 
that this discrimination was allowable.” Id.

These cases viewing vote dilution in its various 
forms as an abridgement of the right to vote extend 
to the recognition that the Fifteenth Amendment 
prohibits race-based gerrymandering and intentional 
vote dilution in redistricting. As this Court noted 
over five decades ago, “[a] statute which is alleged to 
have worked unconstitutional deprivations of 
petitioners’ rights is not immune to attack simply 
because the mechanism employed by the legislature 
is the redefinition of municipal boundaries.” 
Gomillion v. Lightfoot, 364 U.S. 339, 347 (i960). In 
Gomillion, this Court explicitly held that the 
Fifteenth Amendment does not “sanction the 
achievement by a State of any impairment of voting

33



rights whatever so long as it was cloaked in the garb 
of the realignment of political subdivisions.” Id. at 
345. Like the Framers of the Fifteenth Amendment, 
the Gomillion Court recognized that gerrymandering 
had the potential to disenfranchise by rendering 
access to the voting booth meaningless; “ [T]he 
Alabama Legislature has not merely redrawn the 
Tuskeegee city limits ... it is more accurate to say 
that it has deprived the petitioners of the municipal 
franchise.” Id. at 347.6

Since Gomillion, this Court has continued to treat 
claims of intentional vote dilution as cognizable 
under the Fifteenth Amendment. Wright v. 
Rockefeller, 376 U.S. 52, 56 (1964), decided four 
years after Gomillion, reiterated that plaintiffs 
alleging vote dilution in redistricting may state a 
claim under the Fifteenth Amendment. See also 
United Jewish Organizations o f Williamsburgh, Inc. 
v. Carey, 430 U.S. 144, 165 (1977); City o f M obile v. 
Bolden, 446 U.S. 55, 62-63 (plurality opinion); Reno 
v. Bossier Parish Sch. Bd. (Bossier I), 520 U.S. 471, 
481 (1997) (noting that “a plaintiff’ may “bringD a 
constitutional vote dilution challenge” either “under 
the Fourteenth or Fifteenth Amendment”). To the 
extent this Court questioned this proposition and 
deviated from the intent of the Framers in Bossier II,

34

6 Gomillion remains a core part of Fifteenth Amendment 
doctrine. Although some language in Shaw v. Reno, 509 U.S. 
630, 645 (1993), suggests that Gomillion turned on the Equal 
Protection Clause of the Fourteenth Amendment, this Court’s 
most recent extended discussion of the Fifteenth Amendment 
continues to treat Gomillion as grounded in the Fifteenth, and 
not the Fourteenth, Amendment. See Rice, 528 U.S. at 513, 
522.



528 U.S. at 334 n.3, it did so in dicta in a footnote 
addressing an issue that was not part of the question 
presented. This Court’s otherwise consistent 
treatment of vote dilution as a Fifteenth Amendment 
concern shows the extent to which Bossier I I failed to 
fully consider the issue. As this Court noted in Rice 
v. Cayetano—a case decided after Bossier I I —“state 
authority over the boundaries of political 
subdivisions, ‘extensive though it is, is met and 
overcome by the Fifteenth Amendment to the 
Constitution.’” 528 U.S. 495, 522 (2000) (quoting 
Gomillion, 364 U.S. at 345).

In short, the last century of this Court’s 
precedent, understanding the Fifteenth Amendment 
as protecting against vote dilution, accords with the 
intention of the Amendment’s Framers, who sought 
to guarantee former slaves a truly effective voice in 
their democracy.

C. The Voting Rights Act Addresses the Same 
Concerns that Animated the Framers of the 
Fifteenth Amendment and is a Valid Exercise 
of Congress’s Fifteenth Amendment Powers.

With the passage of the Voting Rights Act in 
1965, Congress acted to fulfill the promise of the 
Fifteenth Amendment. “Passage of the Voting 
Rights Act was an important first step in the 
struggle to end discriminatory treatment of 
minorities who seek to exercise one of the most 
fundamental rights of our citizens: the right to vote.” 
Bartlett, 556 U.S. at 10. Sections 4(b) and 5 of the 
Voting Rights Act (both as originally enacted and as 
reenacted) were designed to prevent renewed

35



retrogression. These provisions address the same 
concerns that animated the Framers of the Fifteenth 
Amendment.

This Court has observed that “Section 5 was 
directed at preventing a particular set of invidious 
practices that had the effect of ‘undoting] or 
defeating] the rights recently won by nonwhite 
voters.’” M iller v. Johnson, 515 U.S. 909, 925 (1995) 
(quoting H.R. Rep. No. 91-397, at 8 (1969)). “[T]he 
purpose of § 5 has always been to insure that no 
voting-procedure changes would be made that would 
lead to a retrogression in the position of racial 
minorities with respect to their effective exercise of 
the electoral franchise.” B eer v. United States, 425 
U.S. 130, 141 (1976). Like the Fifteenth Amendment 
itself, Sections 4(b) and 5 focus not only on the 
current exercise of the right to vote, but also on 
ensuring that rights currently held are not eroded in 
the future.

It was not until after Congress enacted the 
Voting Rights Act of 1965 that the dream of equality 
at the core of the Fifteenth Amendment began to 
become a reality. This Court’s decisions upholding 
Congress’s renewed enforcement efforts have enabled 
Congress to make significant progress in reversing 
decades of discrimination and fulfilling the promise 
of racial equality. See Lopez v. M onterey County, 
525 U.S. 266 (1999); City o f Rome v. United States, 
446 U.S. 156 (1980); Katzenbach, 383 U.S. 301.

Relying on this Court’s precedent, extensive 
hearings, and voluminous evidence, Congress has 
now once again concluded that discrimination

36



against voters on the basis of race or color is far from 
eradicated and that the rights protected by the 
Fifteenth Amendment are still sufficiently fragile to 
require renewal of Sections 4(b) and 5 of the Voting 
Rights Act. The Fifteenth Amendment’s history and 
this Court’s decisions require that Congress’s 
determination be given special deference and that 
Shelby County’s challenge be rejected.

History shows that restricting Congress’s 
Fifteenth Amendment power would pose significant 
risks, and that gains in voting rights are fragile and 
tenuous. The Framers of the Fifteenth Amendment 
“fully realized that enfranchisement required 
practical safeguards against evasions of the law and 
retrogression.” Kousser, The Voting Rights A ct and 
the Two Reconstructions, at 137. One of the central 
lessons of the Reconstruction Era is that “revolutions 
and advances in popular rights and democratic 
rights can be reversed; that history can move 
backward; that enormous gains can be lost and 
jeopardized, eroded, or diluted, and abridged in spite 
of the enormous cost that those advances have 
made.” Extension o f the Voting Rights A ct: Hearings 
Before the Suhcomm. on Civil and Constitutional 
Rights o f the H. Comm, on the Judiciary, 97th Cong. 
2027 (1982) (statement of C. Vann Woodward, 
Professor Emeritus of History, Yale University). 
Declaring Sections 4(b) and 5 of the Voting Rights 
Act to be beyond Congress’s Fifteenth Amendment 
enforcement powers would ignore the lessons of 
history and weaken the essential constitutional 
guarantee that Congress has sought to enforce.

37



38
CONCLUSION

For the foregoing reasons, the decision of the 
United States Court of Appeals for the District of 
Columbia Circuit should be affirmed.

Respectfully submitted,

Paul M. Sm ith*
M ichael B. DeSanctis 
Jessica R ing Amunson  
Caroline D. Lopez 
Jenner & Block LLP 
1099 New York Ave., NW 
Suite 900
Washington, DC 20001 
(202) 639-6000 
ps mith@j enner .com

* Counsel o f  Record
New York, NY 10019 
(212) 373-3000

W endy W eiser 
Myrna Perez 
The Brennan  Center for 
Justice at NYU School of Law  

161 Ave. of the Americas, FI. 12 
New York, NY 10013 
(646) 292-8310

SIDNEY S. ROSDEITCHER 
Paul , W eiss, Rifkind , Wharton 

& Garrison  LLP 
1285 Ave. of the Americas

February 1, 2013





No. 12*96

In The

Jsfapr T m z  Cdrmrl of tlj b  ̂ pbriteh States

Shelby County, Alabama,
Petitioner,

v.

Eric H. H older, Jr., Attorney General, et al.,
Respondents.

CERTIFICATE OF WORD COUNT

As required by Supreme Court Rule 33.1(h), I certify that the document contains 
8,933 words, excluding the parts of the document that are exempted by Supreme 
Court Rule 33.1(d).

I declare under penalty of penury that the foregoing is true and correct.

Executed on February 1, 2013.

Paul M. Smith



No. 12-96

In The

Shelby County, Alabama,
Petitioner,

v.

Eric H. Holder, Jr., Attorney General, Et Al .,
Respondents.

CERTIFICATE OF SERVICE

I, Paul M. Smith hereby certify that I am a member of the Bar of this Court, 
and that I have this 1st day of February, 2013, caused three copies of the Brief of 
The Brennan Center For Justice At NYU School of Law as Amicus Curiae In 
Support of Respondents to be served via first-class mail postage pre-paid to:

Bert W. Rein 
Wiley Rein LLP 
1776 K Street, N.W.
Washington, DC 20006 
(202) 719-7000 
brein@wileyrein.com

Jon M. Greenbaum 
Lawyers’ Committee for Civil Rights 

Under Law
1401 New York Avenue, NW, Suite 400 
Washington, DC 20005 
(202) 662-8315
j greenbaum@lawyerscommittee.org

Donald B. Verrilli Jr.
Solicitor General
United States Department of Justice 
950 Pennsylvania Avenue, N.W. 
Washington, DC 20530-0001  
(202) 514-2217
SupremeCtBriefs@USDOJ.gov

Debo P. Adegbile
NAACP Legal Defense & Educational 

Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2249 
dadegbile@naacpldf.org

Laughlin McDonald 
American Civil Liberties Union 

Foundation
230 Peachtree Street NW  
Atlanta, GA 30303-1504 
(404) 523-2721 
lmcdonald@aclu.org

7'<ru- ^ Z  w i I c Qj_
Paul M. Smith

mailto:brein@wileyrein.com
mailto:greenbaum@lawyerscommittee.org
mailto:SupremeCtBriefs@USDOJ.gov
mailto:dadegbile@naacpldf.org
mailto:lmcdonald@aclu.org