Federal Government Power: The Voting Right Act
Michael C. Dorf
Cornell Law School
January 1, 2010
Touro Law Review, Vol. 26, No. 505, 2010
Cornell Legal Studies Research Paper No. 13-24
Following the contested election of 1876, as part of the compromise that gave the United States Presidency to Rutherford B. Hayes, Union troops were withdrawn from the states of the former Confederacy. As a more or less direct consequence, the formerly enslaved African Americans, who had begun to exercise political power under Reconstruction, were once again disenfranchised. The Fifteenth Amendment would remain all but a dead letter until the civil rights movement of the mid-twentieth century.
Along with direct challenges to Jim Crow came legal challenges to the various restrictions and qualifications that states and their subdivisions placed on African-American suffrage. Literacy tests were a favorite device. As Justice Thomas recounted in his separate opinion in Northwest Austin Municipal Utility No. One v. Holder ("NAMUNDO"), such tests dated back to the period immediately following the adoption of the Fifteenth Amendment.
Literacy tests were an effective tool of racially selective disenfranchisement because, as a legacy of slavery and continuing inequality in educational opportunities, the African American population was disproportionately illiterate. To compound the disproportionate impact of literacy tests, white illiterates were often permitted to vote under "grandfather clauses" extending the franchise to those whose grandparents (in the time of slavery) had voted. The blatant race discrimination of the literacy-test-plusgrandfather-clause was invalidated by the Supreme Court as early as 1915. Nevertheless, state officials were creative, so when one stratagem failed, a new one sprang up, and the new ploy was used until it, too, was struck down. But, by then, yet a new disenfranchising technique had been developed.
These tactics were very effective at disenfranchising African Americans in the South, and accordingly, when, a century after the conclusion of the Civil War, Congress finally addressed them, it needed equally effective countermeasures. The Voting Rights Act ("VRA") of 1965 created one such mechanism. Devices that have the purpose or effect of suppressing minority votes violate the substance of the VRA. In addition, under section 5 of the VRA, if a state or one of its subdivisions in a "covered jurisdiction" attempts to change its voting rules in any way, it must first submit the proposed change either to a three-judge court in the District of Columbia or to the Attorney General for what has become known as preclearance.
Number of Pages in PDF File: 11
Keywords: The Voting Rights Act, VRA, Thirteenth Amendment, Fifteenth Amendment, raceAccepted Paper Series
Date posted: February 9, 2013
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