Although the Fifteenth Amendment is "self-executing,"28 the Court early emphasized that the right granted to be free from racial discrimination "should be kept free and pure by congressional enactment whenever that is necessary."29 Following ratification of the Fifteenth Amendment in 1870, Congress passed the Enforcement Act of 1870,30 which had started out as a bill to prohibit state officers from restricting suffrage on racial grounds and providing criminal penalties and ended up as a comprehensive measure aimed as well at private action designed to interfere with the rights guaranteed under the Fourteenth and Fifteenth Amendments. Insofar as this legislation reached private action, it was largely nullified by the Supreme Court and the provisions aimed at official action proved ineffectual and much of it was later repealed.31 More recent legislation has been much more far-reaching in this respect and has been sustained.
State Action.—Like § 1 of the Fourteenth, § 1 of the Fifteenth Amendment prohibits official denial of the rights therein guaranteed, giving rise to the "state action" doctrine.32 Nevertheless, the Supreme Court in two early cases seemed to be of the opinion that Congress could protect the rights against private deprivation, on the theory that Congress impliedly had power to protect the enjoyment of every right conferred by the Constitution against deprivation from any source.33 But in James v. Bowman34 the Court held that legislation based on the Fifteenth Amendment which attempted to prohibit private as well as official interference with the right to vote on racial grounds was unconstitutional, and that interpretation was not questioned until 1941.35 But the Court's interpretation of the "state action" requirement in cases brought under § 1 of the Fifteenth Amendment narrowed the requirement there and opened the possibility, when these decisions are considered with cases decided under the Fourteenth Amendment, that Congress is not limited to legislation directed to official discrimination.36
28 Guinn v. United States, 238 U.S. 347, 362-63 (1915).
29 Ex parte Yarbrough, 110 U.S. 651, 665 (1884).
30 16 Stat. 140. Debate on the Act is collected in 1 B. SCHWARTZ, STATUTORY
HISTORY OF THE UNITED STATES—CIVIL RIGHTS 454 (1971). See also The Enforcement Act of 1871, ch. 99, 16 Stat. 433.
31 Ch. 25, 28 Stat 36 (1894); ch. 321, 35 Stat. 1153 (1909). See R. CARR, FEDERAL
PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 35-55 (1947), for a brief history
of the enactment and repeal of the statutes. The surviving statutes of this period are 18 U.S.C. §§ 241-42, and 42 U.S.C. §§ 1971(a), 1983, and 1985(3).
32 See "State Action," under the Fourteenth Amendment, supra. "The State . . . must mean not private citizens but those clothed with the authority and influence which official position affords. The application of the prohibition of the Fifteenth Amendment to 'any State' is translated by legal jargon to read 'State Action.' This phrase gives rise to a false direction in that it implies some impressive machinery or deliberative conduct normally associated with what orators call a sovereign state. The vital requirement is State responsibility—that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which colored citizens are denied voting rights merely because they are colored." Terry v. Adams, 345 U.S. 461, 473 (1953) (Justice Frankfurter concurring).
Thus, in Smith v. Allwright,37 the exclusion of African Americans from political parties without the compulsion or sanction of state law was nonetheless held to violate the Fifteenth Amendment because political parties were so regulated otherwise as to be in effect agents of the State and thus subject to the Fifteenth Amendment; additionally, in one passage the Court suggested that the failure of the State to prevent the racial exclusion might be the act implicating the Amendment.38 Then, in Terry v. Adams,39 the political organization was not regulated by the State at all and selected its candidates for the Democratic primary election by its own processes; all eligible white voters in the jurisdiction were members of the organization but African Americans were excluded. Nevertheless, the Court held that this exclusion violated the Fifteenth Amendment, although no rationale was agreed upon by a majority of the Justices. Four of them thought the case simply indistinguishable from Smith v. Allwright and thus did not deal with the central issue.40 Justice Frankfurter thought the participation of local elected officials in the processes of the organization was sufficient to implicate state action.41 Three Justices thought that when a purportedly private organization is permitted by the State to assume the functions normally performed by an agency of the State, then that association is subject to federal constitutional restrictions,42 but this opinion also, in citing selected passages of Yarbrough and Reese and Justice Bradley's circuit opinion in Cruikshank, appeared to be suggesting that the state action requirement is not indispensable.43 The 1957 Civil Rights Act44 included a provision prohibiting private action with intent to intimidate or coerce persons in respect of voting in federal elections and authorized the Attorney General to seek injunctive relief against such private actions regardless of the character of the election. The 1965 Voting Rights Act45 went further and prohibited and penalized private actions to intimidate voters in federal, state, or local elections. The Supreme Court has yet to consider the constitutionality of these sections.
33 The idea was fully spelled out in Justice Bradley's opinion on circuit in United States v. Cruikshank, 25 Fed. Cas. 707, 712, 713 (No. 14,897) (C.C.D. La. 1874). The Supreme Court's decision in United States v. Cruikshank, 92 U.S. 542, 555-56 (1876), and United States v. Reese, 92 U.S. 214, 217-18 (1876), may be read to support the contention. Ex parte Yarbrough, 110 U.S. 651 (1884), involved a federal election and the assertion of congressional power to reach private interference with the right to vote in federal elections, but the Court went further to broadly state the power of Congress to protect the citizen in the exercise of rights conferred by the Constitution, among which was the right to be free from discrimination in voting protected by the Fifteenth Amendment. Id. at 665-66.
34 190 U.S. 127 (1903), holding unconstitutional Rev. Stat. § 5507, which was § 5 of the Enforcement Act of 1870, ch. 114, 16 Stat. 140.
35 E.g., United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Williams, 341 U.S. 70, 77 (1951).
36 See "Congressional Definition of Fourteenth Amendment Rights," supra.
37 321 U.S. 649 (1944).
38 "The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restrictions by any State because of race. This grant to the people of the opportunity for choice is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied." 321 U.S. at 664.
39 345 U.S. 461 (1953).
Last modified: June 9, 2014