Northwest Austin Municipal Utility Distr. One v. Holder Brief Amicus Curiae Brennan Center for Justice

    No. 08-322

In the

Suprem e (Erntri of iljc ^Snitefr p la tes

N o r t h w e s t  A u s t in  M u n ic ip a l  U t il it y  D is tr ic t  N u m b e r  O ne
Appellant,

v.
E r ic  H. H o l d e r , J r ., A t t o r n e y  G e n e r a l , et  a l .

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

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

AMICUS CURIAE IN SUPPORT OF APPELLEES

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

161 Ave. of the Americas, FI. 12 
New York, New York 10013 
(212) 998-6730

Sidney  S. Rosdeitcher  
Pa u l , W eiss , R ifk in d ,
W harton  & Garrison  LLP 

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

‘ Counsel of Record

Paul M. Sm ith*
Marc A. Goldman  
Thomas H. Kim  
Jam es C. Cox
N icholas O. Stephanopoulos 
A nna M. Baldw in  
Caroline  D. Lopez 
J enner  & Block  LLP 
1099 New York Avenue, NW 
Suite 900
Washington, DC 20001 
(202) 639-6000

Joshua  A. Block  
Luke  P. M cLoughlin  
J enner & Block  LLP 
919 Third Avenue, FI. 37 
New York, NY 10022 
(212) 891-1600

A ttorn eys fo r  A m icus Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................iii
INTEREST OF AMICUS CURIAE............................ 1
SUMMARY OF ARGUMENT.....................................2
ARGUMENT................................................................. 4
I. The Fifteenth Amendment Was Enacted 

to Prevent Recent Gains in 
Enfranchisement From Being Eroded by 
Southern Resistance or Future Electoral 
Rollbacks...... .........................................................4
A. Before Passing the Fifteenth

Amendment, Congress Enacted 
Aggressive Statutes Regulating the 
Franchise in Federally Controlled 
Areas..............................................................5

B. Southern Violence and Intimidation
Threatened to Undermine Recent 
Gains in Enfranchisement.........................9

C. Congress Was Concerned that Its
Pre-Fifteenth Amendment Powers 
Were Inadequate to Protect 
Enfranchisement in States 
Readmitted Into the Union......................11

D. The Fifteenth Amendment Was
Designed to Set a Baseline 
Guarantee Against Racial 
Discrimination in Voting and to 
Ensure that Congress Would Retain 
the Constitutional Powers to Protect 
that R ight........................     13



II. The Fifteenth Amendment Marked a 
Fundamental Structural Change with 
Respect to Congress’s Role in Protecting
the Right to V ote................................................15
A. The Fifteenth Amendment Codified

the Fundamental Importance of the 
Right to Vote...............................................15

B. The Fifteenth Amendment Made
Racial Discrimination in Voting a 
Central Concern of the Federal 
Government................................................18

C. The Fifteenth Amendment Vested
Congress with Primary
Responsibility for Enforcing the 
Amendment’s Guarantees........................21

III. Early Supreme Court Precedent 
Recognized that the Fifteenth 
Amendment Vested Congress with 
Especially Broad Powers to Protect 
Against Racial Discrimination in Voting ...... 28

IV. Congress’s Enforcement of the Fifteenth
Amendment Is Entitled to Special 
Deference.............................................................33

CONCLUSION............................................................37



Ill
TABLE OF AUTHORITIES

Cases

Bartlett v. Strickland, 556 U.S. ___, 2009
WL 578634 (Mar. 9, 2009).................................

B eer v. United States, 425 U.S. 130 (1976)........
Ex parte Bollman, 8 U.S. (4 Cranch) 75 

(1807).....................................................................
City o f Boerne v. Flores, 521 U.S. 507 (1997).....
City o f  Rome v. United States, 446 U.S. 156 

(1980).............. ......................................................
James v. Bowman, 190 U.S. 127 (1903)...........
Lopez v. M onterey County, 525 U.S. 266 

(1999).....................................................................
Marsh v. Chambers, 463 U.S. 783 (1983)............
M iller v. Johnson, 515 U.S. 909 (1995)................
Rice v. Cayetano, 528 U.S. 495 (2000).................
Ex parte Sieb old, 100 U.S. 371 (1879)..................
South Carolina v. Katzenbach, 383 U.S. 301 

(1966)............................................ ........... 33, 35,
Tennessee v. Lane, 541 U.S. 509 (2004)...............
United States v. Cruikshank, 92 U.S. 542 

(1876)..................................................29, 30, 31,
United States v. Reese, 92 U.S. 214 (1875)...... .
Ex parte Yarbrough (The Ku Klux Cases),

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

35

36

28

34

36

32

36

28

36

17

..6

36

34

32

31

21



Constitutional Provisions and Statutes

U.S. Const, amend. XV, § 2..... .................................5
U.S. Const, art. I, § 4 .................................................6
U.S. Const, art. II, § 1, cl. 4 ......................................6
Act of Apr. 20, 1871, ch. 22, 17 Stat. 13............... 27
Act of Feb. 28, 1871, ch. 99, 16 Stat. 433......26, 27
Act of May 31, 1870, ch. 114, 16 Stat.

140.............................................................24, 25, 26
An Act for the Admission of the Territory of 

Nebraska into the Union, ch. 36, 14 Stat.
391 (1867)........   8

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).........................................................8

An Act to Provide for the More Efficient 
Government of the Rebel States, ch. 153,
14 Stat. 428 (1867)..................................................8

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

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

Legislative Materials

Cong. Globe, 39th Cong., 2d Sess. (1866)................ 6



Cong. Globe, 40th Cong., 3d Sess.
V

Cong. Globe, 40th Cong., 3d Sess. app.
(1869)....................................  13, 16, 17, 19, 20, 22

Cong. Globe, 41st Cong., 2d Sess. (1870)...... 23, 24
S. REP. No . 89-162 (1965)...................................4, 33
H.R. R e p . No. 89-439 (1965).............................. 4, 33
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 Cong. (1975)........................17

Extension o f  the Voting Rights A ct: 
Hearings Before the Subcomm. on Civil 
and Constitutional Rights o f the H.
Comm, on the Judiciary, 97th Cong.
(1982)...................................................................... 35

Other Authorities

Vikram D. Amar & Alan E. Brownstein,
The Hybrid Nature o f  Political Rights, 50 
Stan. L. Rev. 915 (1998)......................................14

Angela Behrens, Christopher Uggen, & Jeff 
Manza, Ballot Manipulation and the 
M enace o f Negro Domination’: Racial 
Threat and Felon Disenfranchisement, 
1850-2002; 109 Am. J. Soc. 559 (2003)...... 10-11

Thomas M. Cooley, Impartial Suffrage 
Established, in II Joseph Story & 
Melville Madison Bigelow, eds., 
Commentaries on the Constitution o f the 
United States (5th ed. 1891).............................. 16



Eric Foner, Reconstruction•' Am erica’s 
Unfinished Revolution, 1863-1877 
(1st Perennial Classic ed. 2002)...... 9, 10, 16, 29

Lee W. Formwalt, The Camilla Massacre o f  
1868- Racial Violence as Political 
Propaganda, 71 Ga. Hist. Q. 400 (1987)..........10

William Gillette, R etreat from
Reconstruction, 1869-1879 (1979).................... 16

William Gillette, The Right to Vote'- Politics 
and the Passage o f the Fifteenth 
Amendment (1965)....................................7, 13, 14

Robert M. Goldman, Reconstruction and 
Black Suffrage'- Losing the Vote in Reese 
andCruikshank (2001)............................. ...29, 31

Alexander Keyssar, The Right to Vote'- The 
Contested H istory o f Democracy in the 
United States (2000).............. .................. 13

J. Morgan Kousser, The Voting Rights A ct 
and the Two Reconstructions, in Bernard 
Grofman & Chandler Davidson, eds., 
Controversies in M inority Voting•' Then 
Voting Rights A ct in Perspective 
(1992).....................................12, 15, 26, 29, 32, 34

Charles Lane, The Day Freedom Died•' The 
Colfax Massacre, the Supreme Court, 
and the Betrayal o f Reconstruction 
(2008)........................................................  10, 31, 32

John Mabry Mathews, Legislative and 
Judicial H istory o f the Fifteenth 
Amendment (1909)................... 11, 18, 19, 21, 23



10

V l l

Laughlin McDonald, A Voting Rights 
Odyssey'- Black Enfranchisement in 
Georgia (2003)................................................

VI James Ford Rhodes, H istory o f  the 
United States from the Compromise o f  
1850 to the McKinley-Bryan Campaign o f  
1896{1906)................  27

Everette Swinney, Enforcing the Fifteenth 
Amendment, 1870-1877, 28 J. So. Hist.
202 (1962).....     27

Allen W. Trelease, White Terror•' The Ku 
Klux Klan Conspiracy and Southern 
Reconstruction (1971)............................................ 9

Richard Vallely, The Two Reconstructions- 
The Struggle for Black Enfranchisement 
(2004)........................................................ 14, 29, 30

Gilles Vandal, Rethinking Southern
Violence (2000)........................................................ 9

Xi Wang, The Making o f Federal 
Enforcement Laws, 1870-1872, 70 Chi.- 
Kent L. Rev. 1013 (1995) 19



INTEREST OF AMICUS CURIA®

Named for late Associate Justice William J. 
Brennan, Jr., the Brennan Center for Justice at NYU 
School of Law is a not-for-profit, nonpartisan 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.

In order to ensure that Congress retains its full 
powers to enforce the guarantees of the Fifteenth 
Amendment, the Brennan Center participated as 
amicus curiae in the summary-judgment proceedings 
before the district court in this case. In granting 
summary judgment to the government and 
intervenors and upholding the constitutionality of

1 The parties have consented to the filing of this brief. 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 its preparation or submission.



Section 5 of the Voting Rights Act, the district court 
cited with approval the Brennan Center’s argument 
that ‘“while the Supreme Court has found some 
statutes were not an appropriate means of enforcing 
the Fourteenth Amendment, the Court has been far 
more deferential when Congress’s Fifteenth 
Amendment powers are at stake.’” Northwest Austin 
Mun. Util. Dist. No. One (“NAMUDNO ’) v. Mukasey, 
573 F. Supp. 2d 221, 236 (D.D.C. 2008) (quoting 
Brennan Center amicus brief). On appeal, the 
Brennan Center again submits a brief as amicus 
curiae in support of Appellees and in support of 
affirmance. In this brief, the Brennan Center 
addresses the history of the Fifteenth Amendment, 
which supports the district court’s conclusion.

SUMMARY OF ARGUMENT
The history of the Fifteenth Amendment confirms 

that its framers intended to give Congress broad 
authority to protect the fundamental right to vote 
from racial discrimination and fully justifies the 
special deference this Court has consistently given to 
Congress’s judgments in exercising that authority.

Before passing the Fifteenth Amendment, 
Congress had extended black enfranchisement as far 
as it could through ordinary legislation. Although 
Congress had succeeded in formally enfranchising 
blacks throughout the former Confederacy and 
federally controlled territories by the end of 1868, 
those legal rights were already being undermined by 
violence and intimidation. The Fifteenth 
Amendment was intended to consolidate the formal 
gains that had been previously achieved and ensure

2



that they were not rolled back by circumvention or 
by future electoral majorities. At the same time, the 
enforcement clause of the Fifteenth Amendment was 
designed to provide Congress with continuing 
authority to protect black voting rights after it ceded 
supervisory control over the former Confederacy.

Both Congress and the states recognized that the 
Fifteenth Amendment represented a fundamental 
structural change in at least three ways. First, the 
Amendment enshrined the right to vote as a right of 
paramount importance to achieving racial equality. 
Second, the Amendment transferred to the federal 
government control over an area that had once been 
left exclusively to the states. And, third, the 
Amendment provided that Congress would play an 
ongoing role in protecting the new federal right the 
Amendment had created. Immediately after the 
Amendment was ratified, Congress passed a series of 
vigorous enforcement acts, reflecting 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.

In its early decisions examining Congress’s 
enforcement powers, the Supreme Court also 
recognized that the Fifteenth Amendment
represented a major transfer of authority from the 
states to the federal government and gave Congress 
broad authority to protect against racial
discrimination in voting. Indeed, when Congress 
passed the Voting Rights Act in 1965, the Senate and 
House Reports noted that “ [n]o statute confined to

3



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);
H. R. Rep. No. 89-439, at 17 (1965). That observation 
remains true to this day.

The history and structure of the Fifteenth 
Amendment demonstrate that Congress’s decision to 
extend the temporary provisions of the Voting Rights 
Act should be accorded special deference. Section 5 
of the Voting Rights Act (both as originally enacted 
and as reenacted) addresses the same concerns that 
animated the framers of the Fifteenth Amendment. 
Congress, which is entrusted with critical 
responsibility for enforcing the Fifteenth 
Amendment, has once again determined, based on an 
extensive record, that the protections of Section 5 are 
necessary to prevent hard-won gains in voting rights 
from being eroded or undermined. This Court should 
defer to that legislative judgment and reject 
NAMUDNO’s constitutional challenge.

ARGUMENT

I. The Fifteenth Amendment Was Enacted to 
Prevent Recent Gains in Enfranchisement From 
Being Eroded by Southern Resistance or Future 
Electoral Rollbacks.
Congress passed the Fifteenth Amendment 

immediately after the 1868 elections at the end of a 
two-year period in which it had expanded black 
enfranchisement as far as possible through ordinary 
legislation. Congress viewed the recent gains in 
black enfranchisement as fragile and tenuous. 
Because it was uncertain whether the Fourteenth

4



Amendment would fully protect such rights, 
Congress believed that only another amendment 
establishing robust federal authority could safeguard 
against racial discrimination in voting and preserve 
Congress’s role in protecting enfranchisement as the 
former Confederate states were re-assimilated into 
the Union. Section 1 of the Amendment instituted a 
self-executing nation-wide ban on racial 
discrimination in voting. And Section 2 of the 
Amendment provided Congress with additional 
power to enforce the Amendment through 
“appropriate legislation.” U.S. Const, amend. XV, 
§ 2 .

A. Before Passing the Fifteenth Amendment, 
Congress Enacted Aggressive Statutes 
Regulating the Franchise in Federally 
Controlled Areas.

At the beginning of 1867, a mere two years before 
Congress passed the Fifteenth Amendment, and just 
three years before the Amendment cleared the 
threshold of state ratifications, federal law did not 
guarantee the voting rights of any black persons. 
Congress enacted a series of aggressive statutes in 
1867 and 1868 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 under Reconstruction.

5



Congress also provided mechanisms to enforce this 
right.2

Congress first passed legislation enfranchising 
blacks in the District of Columbia. See An Act to 
Regulate the Elective Franchise in the District of 
Columbia, ch. 6, 14 Stat. 375 (1867).3
Enfranchisement alone was revolutionary enough. 
See Cong. Globe, 39th Cong., 2d Sess. 107 (1866) 
(statement of Sen. Sumner) (“Here in the District of 
Columbia we begin the real work of reconstruction by 
which the union will be consolidated forever.”). But 
Congress recognized that enfranchisement on paper 
would not necessarily produce enfranchisement in 
practice. The District of Columbia suffrage bill 
therefore included two sections penalizing 
interference with the voting rights established by the

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, those 
powers did not apply to elections of state officials. And, even 
with respect to 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 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”).

3 Subject to restrictions on age, duration of residency, criminal 
history, and other such factors, the Act stated that “each and 
every male person . . . shall be entitled to the elective franchise, 
and shall be deemed an elector and entitled to vote at any 
election in said District, without any distinction on account of 
color or race.” 14 Stat. 375, § 1.



Act.4 From the very beginning, Congress thus 
recognized 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.

To enact the District of Columbia suffrage bill, 
Congress had to override a presidential veto for the 
first time in the nation’s history. See William 
Gillette, The Right to Vote'- Politics and the Passage 
o f the Fifteenth Amendment 30 (1965). That same 
month, Congress overrode a second presidential veto 
and passed legislation giving blacks the right to vote 
in other geographic areas subject to federal control. 
See An Act to Regulate the Elective Franchise in the 
Territories of the United States, ch. 15, 14 Stat. 379 
(1867). And just two weeks later, Congress required 
that the Territory of Nebraska abolish all racial 
qualifications on voting before it could be admitted

7

4 Sections 2 and 3 of the District of Columbia suffrage bill read:

[A]ny person whose duty it shall be to receive votes at 
any election within the District of Columbia, who shall 
willfully refuse to receive, or who shall willfully reject, 
the vote of any person entitled to such right under this 
act, shall be liable [criminally and in tort].

14 Stat. 375, § 2.

[I]f any person or persons shall willfully interrupt or 
disturb any such elector in the exercise of such 
franchise, he or they shall be deemed guilty of a 
misdemeanor . . . .



into the Union. See An Act for the Admission of the 
Territory of Nebraska into the Union, ch. 36, 14 Stat. 
391, § 3 (1867) (“[T]his act shall not take effect 
except upon the fundamental condition that within 
the State of Nebraska there shall be no denial of the 
elective franchise, or of any other right, to any 
person, by reason of race or color, excepting Indians 
not taxed.”).

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”). Recognizing the 
possibility of 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.” E.g., An Act to Admit the States of 
North Carolina, South Carolina, Louisiana, Georgia, 
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 and, as 
discussed below, ultimately found it necessary to 
adopt a constitutional amendment to solidify its own 
powers to guarantee such protection.

8



B. Southern Violence and Intimidation 
Threatened to Undermine Recent Gains in 
Enfranchisement.

Although Congress had succeeded in formally- 
enfranchising blacks throughout the former 
Confederacy and federally controlled territories by 
the end of 1868, those legal rights were already being 
undermined by violence and intimidation. The 
period leading up to the 1868 election saw one of the 
greatest waves of racial violence in American history. 
At least 65 blacks were lynched in 1868 in Louisiana 
alone, most in the six-month period from May to 
November immediately leading up to the elections. 
Gilles Vandal, Rethinking Southern Violence 93-94 
(2000). In northern Alabama, the Ku Klux Klan 
spread “a nameless terror among negroes, poor 
whites,” and other prospective Republican voters. 
Allen W. Trelease, White Terror■' The Ku Klux Klan 
Conspiracy and Southern Reconstruction 101 (1971). 
In Camilla, Georgia, “400 armed whites, led by the 
local sheriff, opened fire on a black election parade”; 
similar riots rocked Pulaski, Tennessee (the 
birthplace of the Klan), St. Landry Parish, 
Louisiana, and dozens of other communities. Eric 
Foner, Reconstruction•' America's Unfinished 
Revolution, 1863-1877 342 (1st Perennial Classic ed. 
2002).

The connection between violence and suffrage 
was both explicit and pervasive. L.N. Trammell, who 
eventually became president of the 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

9



organization of the KKK might effect this more than 
anything else.’” Laughlin McDonald, A Voting 
Rights Odyssey: Black Enfranchisement in Georgia 
21 (2003); see also Lee W. Formwalt, The Camilla 
Massacre o f  1868: Racial Violence as Political 
Propaganda, 71 Ga. Hist. Q. 400, 402-03 (1987). 
Republicans in Georgia and Louisiana abandoned 
their campaigns because they were “ [ujnable to hold 
meetings and fearful that attempts to bring out their 
vote would only result in further massacres.” Foner, 
Reconstruction, at 342.

The southern resistance did not end once the 
ballots were counted. In 1868, the Klan assassinated 
a black Republican congressman from Arkansas and 
three black members of the South Carolina state 
legislature. Charles Lane, The Day Freedom Died-' 
The Colfax Massacre, the Supreme Court, and the 
Betrayal 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 
Manipulation and the M enace o f Negro Domination':

10



Racial Threat and Felon Disenfranchisement, 1850- 
2002, 109 Am. J. Soc. 559, 560 (2003).

C. Congress Was Concerned that Its Pre- 
Fifteenth Amendment Powers Were 
Inadequate to Protect Enfranchisement in 
States Readmitted Into the Union.

In addition to private violence, Congress also 
faced a looming structural problem. As the 
Confederate states began to be re-assimilated into 
the Union, Republicans were concerned that 
Congress’s constitutional power to protect black 
enfranchisement 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 History o f the Fifteenth 
Amendment 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.

Once the former Confederate states were 
readmitted into the Union, the source of the legal 
authority to protect suffrage on an ongoing basis 
became less clear. At a time when enforcement was 
most needed, Congress thus faced the possibility of 
losing its legal authority to protect the right to vote.

11



The Fifteenth Amendment was therefore necessary 
to “supplyD 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.” Id. at 21.

The Amendment would also enfranchise blacks in 
the Northern states, most of which still prohibited 
blacks from voting. From 1865 to 1869, white voters 
in the northern states had rejected eight of eleven 
state referenda that would have ended racial 
restrictions on voting. J. Morgan Kousser, The 
Voting Rights A ct and the Two Reconstructions, in 
Bernard Grofman & Chandler Davidson, eds., 
Controversies in M inority Voting-' The Voting Rights 
A ct in Perspective 137 (1992). Congressional 
Republicans believed that only a constitutional 
amendment would empower Congress to override 
these referenda and enfranchise blacks in the loyal 
states that had never seceded. See Cong. Globe, 40th 
Cong., 3d Sess. 555 (1869) (statement of Rep 
Boutwell) (arguing that, without a constitutional 
amendment, “the subject is not within the proper 
scope of legislative power, and that the only way to 
secure the equality of suffrage to the people of this 
country, without distinction of race or color, is by an 
amendment to the Constitution”).

12



D. The Fifteenth Amendment Was Designed to 
Set a Baseline Guarantee Against Racial 
Discrimination in Voting and to Ensure that 
Congress Would Retain the Constitutional 
Powers to Protect that Right.

Against this backdrop, the two clauses of the 
Fifteenth Amendment served 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. “Republicans sensed that 
control of the national government might be slipping 
from their grasp, that white Southerners were 
intensifying their opposition to black equality, and 
that something had to be done to guarantee black 
political rights, particularly in the event that the 
Democrats returned to power in the South or 
nationally.” Alexander Keyssar, The Right to Vote'- 
The Contested H istory o f Democracy in the United 
States 93-94 (2000). 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

13



government should be left to the caprices of party. 
Its proper place is in the organic law.”).

Second, the enforcement power provided in the 
Amendment would give Congress continuing 
constitutional power to protect black suffrage even 
once it ceded supervisory control over the former 
Confederacy. The Amendment would give Congress 
“a general commission to make detailed statutes” 
protecting against racial discrimination in voting. 
Richard Vallely, The Two Reconstructions' The 
Struggle for Black Enfranchisement 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 Nature o f  
Political Rights, 50 Stan. L. Rev. 915, 940-41 (1998). 
And it would give 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.

Together, by creating a nation-wide 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.

14



II. The Fifteenth Amendment Marked a
Fundamental Structural Change with Respect to
Congress’s Role in Protecting the Right to Vote.

The Fifteenth Amendment represented a 
fundamental structural change in at least three 
ways. First, the Amendment enshrined the right to 
vote as a right essential to achieving racial equality. 
Second, the Amendment transferred to the federal 
government control over an area that had once been 
left to the exclusive control of the states. And, third, 
the Amendment provided that Congress would take a 
primary role in protecting the new federal rights the 
Amendment had created.

A. The Fifteenth Amendment Codified the 
Fundamental Importance of the Right to Vote.

The Republicans who championed the Fifteenth 
Amendment viewed the franchise as “ [t]he 
centerpiece of Reconstruction.” Kousser, Voting 
Rights A ct and Two Reconstructions, at 136. They 
sought to leave nothing to chance in ensuring that 
the foundational principle of electoral equality 
received full constitutional protection, both in theory 
and in practice.

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 foundational 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

15



happiness?” Cong. Globe, 40th Cong., 3d Sess. app. 
100 (1869) (statement of Rep. Hamilton). Congress 
knew that the ballot box would ultimately provide 
more lasting protections than piecemeal legislation: 
“the 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, Impartial Suffrage 
Established, in II Joseph Story & Melville Madison 
Bigelow, eds., Commentaries on the Constitution o f  
the United States 718 (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- 
1879 23 (1979) (quoting Wendell Phillips).

Supporters also viewed the right to vote as a 
source of empowerment for the recently freed slaves. 
The Amendment would “place in the hand of the 
black man of Georgia a rod of power before which all 
politicians quail”—a certain vote. Cong. Globe, 40th 
Cong., 3d Sess. 1629 (1869) (statement of Sen. 
Stewart). Republicans believed that equal suffrage 
would ‘“confer [] upon the African race the care of its 
own destiny. It places their fortunes in their own 
hands.”’ Foner, Reconstruction, at 449 (quoting 
then-Congressman James Garfield).

Finally, the Amendment’s supporters saw 
political equality as a critical step towards achieving 
social equality. “ [T]he ballot . . .  is at once authority 
and protection, a badge of power, and a shield of 
defense, a schoolmaster for the ignorant, a lifter-up

16



of the lowly, and a bond of fraternal union for all.” 
Cong. Globe, 40th Cong., 3d Sess. app. 146 (1869) 
(statement of Rep. French). As Representative 
Whittemore urged: “Give the colored man his vote! 
then and not till then will disloyalty be crushed; . . . 
then and not till then will the material which feeds 
the flame of partisan and sectional strife be removed 
forever.” Id. at app. 93.

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. The Fifteenth Amendment enshrined the 
right to vote as a centerpiece of Reconstruction and 
as a foundational constitutional guarantee of racial 
equality.5

17

5 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 Suhcomm. on 
Constitutional Rights o f the S. Comm, on the Judiciary, 94th 
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 “[ajncestry can be a proxy for a race,”



B, The Fifteenth Amendment Made Racial 
Discrimination in Voting a Central Concern of 
the Federal Government.

The Fifteenth Amendment radically altered the 
balance of power between the federal government 
and the states with respect to regulations of the 
voting 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. 
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. 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.

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. But the Fifteenth Amendment 
broke with those past assumptions. “The fact . . . 
that the national legislature was authorized to 
enforce the prohibition upon the States carried the

18

discrimination based on common ancestry or culture violates 
the Fifteenth Amendment).



national power over suffrage into a sphere whither it 
had not previously extended.” Id. at 36.

It was recognized both by the Amendment’s 
supporters and opponents 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 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 Making o f Federal 
Enforcement Laws, 1870-1872, 70 Chi.“Kent L. Rev. 
1013, 1030 (1995). Similarly, 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:

19



[T]he 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 
power to control the elections themselves. It is 
impossible to separate the two.

Id. at app. 151. Similarly, James Dixon, a 
disillusioned former Republican who had recently 
switched parties, envisioned federal laws usurping 
state sovereignty over their own elections:

It is not a question of negro suffrage alone, it 
is a question of suffrage in its widest sense. . . .
It is the question who shall be the voter. It is 
the question of suffrage in the State of 
Connecticut, and by whom shall its regulation 
be established? That, the people of 
Connecticut will remember, is the question 
which is presented now, whether the Congress 
of the United States and the people of all the 
States of the United States shall invade the 
borders of that ancient republic and compel 
her to change her laws.

Id. at 861.
Both the proponents and opponents of the 

Fifteenth Amendment thus understood the 
Amendment to dramatically alter the status quo by 
installing the federal government, and Congress in 
particular, as the ultimate protector against racial

20



discrimination in voting. The Amendment carved 
out an area once believed to belong exclusively to the 
states and transferred power from the states to the 
federal government. As the Supreme 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 Cases), 110 U.S. 651, 664 (1884).

C. The Fifteenth Amendment Vested Congress 
with Primary Responsibility for Enforcing the 
Amendment’s Guarantees.

Finally, the 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. Congress knew from the 
beginning, based on its experience with prior efforts 
to enfranchise blacks in the District of Columbia, 
federal territories, and former Confederate states, 
that the Fifteenth Amendment would require a 
vigorous enforcement mechanism. “[Tjhere 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.

21



The Amendment set a constitutional floor 
prohibiting discrimination but also empowered 
Congress to take those steps it believed important to 
preclude such discrimination. Republicans who 
preferred a broader constitutional amendment were 
willing to accept a narrower version of Section 1 
precisely because Section 2 would provide Congress 
with additional enforcement power to transform the 
negatively phrased Section 1 into a positive 
guarantee:

If there were nothing at all here except the 
first section I might see a great deal of weight 
in [a concern that section l ’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]

22



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 
Amendment was designed to give Congress broad 
enforcement powers to pass affirmative legislation 
protecting against racial discrimination in voting. 
See Mathews, History 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 “[t]his 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 referenced “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. Invoking the 1868 debates, Morton argued

23



that the 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. at 3670. 
And Senator Howard similarly 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 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. 
These provisions were designed not merely to ensure 
that voting rights remained formally intact, but to 
ensure that neither states nor private actors took

24



steps to undermine the effectiveness of those voting 
rights.

Sections 2 and 3 of the Enforcement Act 
prohibited discrimination in voter registration. 
Section 2 imposed a positive duty on state election 
officials “to give to all citizens of the United States 
the same and equal opportunity to perform” any 
prerequisite to voting, such as paying a poll tax or 
passing a literacy test, “and to become qualified to 
vote without distinction of race, color, or previous 
condition of servitude.” 16 Stat. 140, § 2. Section 3 
provided that a person denied the opportunity to 
perform a prerequisite to voting “by reason of the 
wrongful act or omission” of anyone involved in the 
registration process “shall be entitled to vote in the 
same manner and to the same extent as if he had in 
fact performed” the prerequisite. Id. § 3.

The next three sections targeted violence and 
intimidation aimed at suppressing the vote. Section 
4 barred “any person, by force, bribery, threats, 
intimidation or other unlawful means” from 
“preventing] or obstructing]” citizens from 
performing any prerequisite or from voting. Id. § 4. 
Section 5 precluded landlords and employers from 
retaliating against their tenants and employees in 
order to “prevent, hinder, control or intimidate . . . 
any person from exercising . . . the right of suffrage, 
to whom the right of suffrage is secured or 
guaranteed by the fifteenth amendment.” Id. § 5. 
Section 6, which enforced rights under the 
Fourteenth Amendment as well as the Fifteenth, 
outlawed conspiracies “to injure, oppress, threaten, 
or intimidate any citizen with intent to prevent or

25



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.

Finally, Section 23 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. Id. § 23. Congress 
thus empowered the federal courts to nullify state 
election results if those results were tainted by racial 
disenfranchisement.

Taken together, this set of bold provisions make 
clear that the contemporary Congress was not 
“constrained by traditional theories of federalism.” 
Kousser, Voting Rights A ct and Two
Reconstructions, at 139. Congress understood its 
enforcement power to be extremely broad, 
encompassing a range of prophylactic measures not 
compelled by Section 1 of the Amendment but which 
Congress 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”). These
amendments provided for detailed supervisory 
powers over the electoral process, from registration 
to the certification of returns. The statute provided 
that if any two citizens of a city or town “make 
known, in writing, to the judge of the circuit court of

26



the United States for the circuit wherein such city or 
town shall be, their desire to have [a] registration, or 
[an] election, or both, guarded and scrutinized,” then 
the judge shall appoint a supervisor. Id. § 2. The 
supervisors’ duties were described in detail and 
included personally scrutinizing and counting 
ballots, making returns, keeping the peace, and 
preventing fraud. See VI James Ford Rhodes, 
H istory o f the United States from the Compromise o f  
1850 to the McKinley-Bryan Campaign o f 1896 423 
(1906) (“A host of supervisors were to be appointed 
by the judges of the United States courts who should 
see that the voting was fair and the count honest.”). 
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).

In addition to the provisions in the 1871 
Enforcement Act, in the Ku Klux Klan Act of 1871, 
Congress 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

27



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 
meaning.’” (quoting Wisconsin v. Pelican Ins. Co., 
124 U.S. 165, 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.
III. Early Supreme Court Precedent Recognized 

that the Fifteenth Amendment Vested 
Congress with Especially Broad Powers to 
Protect Against Racial Discrimination in 
Voting.

The Supreme Court shared the contemporary 
understanding that the Fifteenth Amendment 
represented a major transfer of authority from the 
states to the federal government 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

28



Fifteenth Amendment was even 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, 
Voting Rights A ct and Two Reconstructions, at 160. 
While the decision had “disastrous” results for 
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. “ [Bjuried in an otherwise 
devastating opinion, the Supreme Court expressly 
accepted national action as part of the ‘protecting 
power of Congress’—which is exactly what had been 
at stake during this period.” Vallely, Two 
Reconstructions, at 119; 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 defendants in Cruikshank were charged with 
violating the constitutional rights of the black 
victims they had killed. In examining the 32-count

29



indictment, the Cruikshank Court used a markedly 
different analytical approach depending on whether 
a count of the indictment implicated the Fourteenth 
Amendment or the Fifteenth. With respect to counts 
of the indictment that sought to enforce the 
Fourteenth Amendment against non-state actors, the 
Court invalidated the Enforcement Act as beyond 
Congress’s powers. According to the Court, the 
Fourteenth Amendment did not create any new 
federal constitutional rights enforceable against 
individuals. Black citizens had to look to the state to 
protect their freedom of assembly, right to bear 
arms, and right to life, liberty, and property. The 
Court stated that none of those rights was 
“committed by the people to the protection of 
Congress” or “within the general scope of the 
authority granted to national government.” 
Cruikshank, 92 U.S. at 552. The opinion thus 
“systematically shattered the implicit justification in 
Reconstruction constitutionalism of every count, 
except for those based on the Fifteenth Amendment.” 
Vallely, Two Reconstructions, at 118.

The Court also found the counts based on the 
Fifteenth Amendment deficient, but it did so through 
a crabbed reading of the indictment, while affirming 
the breadth of Congress’s enforcement power. The 
Court pointedly did not invalidate Congress’s power 
to protect equal suffrage and affirmed that the 
Fifteenth Amendment (unlike the Fourteenth) did 
create “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

30



the “exemption from discrimination in the exercise 
o f ’ the right to vote as a “necessary attribute of 
national citizenship.” Id. at 555-56. 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.

Instead of declaring that Congress lacked the 
power to enforce the Fifteenth Amendment, the 
Cruikshank Court invalidated the convictions on 
technical grounds, leaving the Enforcement Act on 
the books and allowing future prosecutions to 
continue. See Lane, The Day Freedom Died, at 251- 
52! Goldman, Reconstruction and Black Suffrage, at 
109.6 The Court asserted that the indictment was 
flawed because it did not specifically allege “that the

31

6 The same day that it decided Cruikshank, the Court, in 
United States v. Reese, 92 U.S. 214 (1875), invalidated a 
portion of the Enforcement Act on vagueness grounds because 
the text of the statute did not clearly indicate whether it 
covered all deprivations of the right to vote or solely 
deprivations made on account of race. Rather than adopting a 
limiting construction requiring that the deprivation be made on 
account of race, the Court invalidated the applicable sections. 
Id. at 221. Congress promptly reenacted the portions of the 
Enforcement Act voided in Reese two months after the Court’s 
decision. “The two new sections, 5506 and 5507 of what were 
now known as the Revised Statutes, were more specific than 
the earlier sections voided by the Court, but were still based on 
the right of suffrage, to whom that right is guaranteed by the 
Fifteenth Amendment.” Goldman, Reconstruction and Black 
Suffrage, at 109 (internal quotation marks omitted).



intent of the defendants was to prevent these parties 
from exercising their right to vote on account of their 
race.” Cruikshank, 92 U.S. at 556. The Court stated 
that “ [w]e may suspect that race was the cause of the 
hostility, but it is not so averred.” Id. 
Commentators have criticized the Court’s strained 
reading of the indictment as “deeply disturbing” : “If 
105 black bodies did not prove racial animosity, what 
would?” Kousser, Voting Rights A ct and Two 
Reconstructions, at 161. Judge Hugh Lennox Bond 
even sent a private letter to Chief Justice Waite 
referring to the Cruikshank opinion as a “‘Dred’ 
decision.” Lane, The Day Freedom Died, at 247. 
But, despite the heavy burden of proof imposed on 
prosecutors, the government continued to obtain 
convictions under the Enforcement Act through the 
administrations of Presidents Hayes, Garfield, and 
Arthur. Id. at 251.7

The history of the Fifteenth Amendment thus 
shows that whatever the limits on Fourteenth 
Amendment enforcement powers, Congress’s 
Fifteenth Amendment power is a sweeping power so 
long as Congress is acting to prevent racial 
discrimination in voting. “On the rare occasions 
when the Court has found an unconstitutional 
exercise of [Fifteenth Amendment] powers, in its

32

7 As a doctrinal matter, subsequent cases following Reese and 
Cruickshank have cast doubt on whether the Fifteenth 
Amendment empowers Congress to address private conduct. 
See James v. Bowman, 190 U.S. 127 (1903). But whether or not 
the doctrinal views of Reese and Cruikshank that the Fifteenth 
Amendment reaches private conduct remain good law, the cases 
reflect as a historical matter the contemporary understanding 
of the Supreme Court.



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 15 th 
amendment exemption from racial discrimination in 
voting has ever been voided by the Supreme Court.” 
S. Rep. No. 89-162, at 17 (1965); H.R. Rep. No. 89- 
439, at 17 (1965).
IV. Congress’s Enforcement of the Fifteenth

Amendment Is Entitled to Special Deference.
The history of the Fifteenth Amendment and the 

structural changes it created indicate that Congress 
should be afforded special deference in enforcing the 
Fifteenth Amendment’s prohibition on racial 
discrimination in voting. The Fifteenth Amendment 
is a narrowly targeted provision designed to protect a 
right of extreme national importance. Perhaps more 
than any of the other Reconstruction Amendments, 
the Fifteenth Amendment carved out an area that 
had traditionally been left exclusively to the states 
and transferred primary control to the federal 
government. Indeed, the Fifteenth Amendment was 
designed for the very purpose of altering the federal- 
state balance to allow Congress to continue to protect 
the right to vote even once the former Confederacy 
was re-integrated into the Union.

The structure of the Fifteenth Amendment 
further justifies such deference. Unlike the 
Fourteenth Amendment, where the Court must 
define the scope of such broad phrases as “equal

33



protection” and “due process,” the framers of the 
Fifteenth Amendment defined its substance in 
simple, straightforward terms. The focus on a single, 
fundamental right inherently cabins Congress’s 
enforcement power to a relatively narrow but critical 
area. Because the Fifteenth Amendment is limited 
to the narrow subject of racial discrimination in 
voting, there is no risk that Congress could use the 
Fifteenth Amendment to “prescribe uniform national 
laws with respect to life, liberty, and property,” City 
o f Boerne v. Flores, 521 U.S. 507, 523 (1997), or 
“rewrite the Bill of Rights,” Tennessee v. Lane, 541 
U.S. 509, 556 (2004) (Scalia, J., dissenting). In other 
words, because the Amendment operates only within 
a limited sphere of the intersection of racial 
discrimination and the right to vote, Congress’s 
sweeping powers to enforce the Amendment do not 
pose any risk of undermining general principles of 
federalism or separation of powers.

In contrast, history shows that limiting 
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, Voting Rights A ct 
and Two Reconstructions, at 137. One of the central 
lessons of the Reconstruction period 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

34



made.” Extension o f the Voting Rights Act-H earings 
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). 
History continued to prove the framers right both 
with respect to voting rights in particular and equal 
protection more generally. After the Supreme Court 
in Reese, Cruikshank, and similar cases invalidated 
Fourteenth Amendment legislation and frustrated 
Fifteenth Amendment legislation on technical 
grounds, an increasingly passive and Democratic 
Congress in 1894 failed to pass or reauthorize new 
enforcement legislation, and the South lapsed into 
nearly 75 years of Jim Crow. Just as the framers of 
the Fifteenth Amendment feared, without robust 
legislation from Congress, hard-won gains were 
gradually rolled back. Katzenbach, 383 U.S. at 310 
11.

It took renewed congressional action in the Voting 
Rights Act before gains in enfranchisement resumed. 
“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 v. Strickland, 556 U.S. . 
2009 WL 578634, at *6 (Mar. 9, 2009). Section 5 of 
the Voting Rights Act (both as originally enacted and 
as reenacted) was designed to prevent renewed 
retrogression. It addresses 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

35



that had the effect of ‘undoting] or defeat ting] 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.” Beer v. United States, 425 U.S. 130, 141 
(1976). Like the Fifteenth Amendment itself, 
Section 5 focuses 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 neglect 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. Congress has 
now once again concluded, after holding extensive 
hearings and gathering voluminous evidence, that 
discrimination against voters on the basis of race or 
color is far from eradicated and that the rights 
protected by the Amendment are still sufficiently 
fragile to require renewal of Section 5 and other 
provisions of the Voting Rights Act. The Fifteenth 
Amendment’s history and this Court’s decisions 
require that Congress’s determination be given

36



special deference and that NAMUDNOs challenge be 
rejected.

CONCLUSION

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

37

Wendy  W eiser 
Myrn a  Perez 
The Brennan  Center  for 
Justice  at  NYU School of Law  

161 Ave. of the Americas, FI. 12 
New York, New York 10013 
(212) 998-6730

Sidney  S. R osdeitcher 
Pa u l , W eiss , R ifkind ,
W harton  & Garrison  LLP 

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

Attorneys for Amicus Curiae, the 
Brennan Center for Justice at 
NYU School o f La w

March 25, 2009

Respectfully submitted,

Pa u l  M. Sm ith*
Marc A. Goldman  
Thomas H. Kim  
Jam es C. Cox 
A nna  M. Baldw in  
Nicholas O. Stephanopoulos 
Caroline  D. Lopez 
Jenner  & Block  LLP 
1099 New York Avenue, NW 
Suite 900
Washington, DC 20001 
(202) 639-6000

Joshua  A. Block  
Luke  P. M cLoughlin  
Jenner & Block  LLP 
919 Third Avenue, FI. 37 
New York, NY 10022 
(212) 891-1600

‘ Counsel of Record