Voting rights for African Americans have come a long way. Even with the enactment of the 15th Amendment that forbade the denial or abridgment of the right to vote, full voting rights for African Americans really weren’t protected and enforced until 100 years after it was enacted. Ironically, the 14th Amendment was actually a key element that helped solve the issues in voting that occurred before the 15th Amendment.
One of the most important amendments to the United State’s constitution today is the 14th Amendment. It has been a powerful amendment as it is a restraint of the state’s power through discriminatory practices. Through time, this amendment was implemented to forbid states from enacting laws that discriminated against individuals based on race.
This is what ultimately struck down the Jim Crow laws when the Supreme Court found in the landmark case of Brown v. Board of Education when it struck down laws separated schools based on race noting that it violated the equal protection clause of the 14th Amendment. This case was decided in 1954 only 66 years ago.
The 14th Amendment was not always a proponent of race
However, this was not always the case. Before that, the Supreme Court had found in another case back in 1896, Plessy v. Ferguson, which dealt with a law of Louisiana that railway cars carrying passengers to provide “separate accommodations for white and colored races.” If a passenger went into a coach they didn’t belong to, they were subject to criminal penalty of $25 dollars or up to twenty days in the county jail. The passenger at issue was seventh eighths Caucasian and one eighth African who took a seat in the white passenger area.
In that decision the Supreme Court opined regarding the 14th Amendment,
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.
We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Essentially, the court said the 14th Amendment’s purpose was not to stamp out race distinctions and bring racial equality. It said that the laws did not make one race inferior than another and that a law that requires racial segregations was not unreasonable. This is the case that rushed in and approved the legality of the Jim Crow laws that allowed and in fact required businesses to separate based on race. The court did not do the analysis as courts now do, where even though a law on its face may seem constitutional, as applied it is unconstitutional. The court knew full well that African Americans had just been put on equal grounds almost 30 years prior but it was unwilling to step into the social arena states had created on racial segregation.
Finally, in Brown v. Board of Education, the Supreme Court said the opposite,
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development.
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
This is the landmark decision that finally brought racial segregation and the Jim Crow
laws to a halt. However, what is interesting, is that the Supreme Court made such a definition on the 14th Amendment 20 years prior as it related to voting rights. Also, despite the discrepancy in the interpretation of the language of the 14th Amendment, the 15th Amendment’s language was very clear as it pertained to race and voting rights.
Even though the 15th Amendment was clear on voting rights it still was not a reality when it was enacted.
There was one part of the constitution that was enumerated as to rights of all individuals that was specific to race. The 15th Amendment which was enacted in 1870, noted that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color or, or previous condition of servitude.” This came five years after the Thirteenth Amendment which abolished slavery and involuntary servitude in 1865 and four years after the enactment of the Civil Rights Act of 1866.
The 15th Amendment had a political motive. The Republicans wanted to make sure the votes of African Americans were protected as the new votes would increase Republican power in the House of Representatives.
The U.S. Supreme Court makes the 15th Amendment take a step back
The first constitutional challenge to the 15th Amendment came in 1876 in United States v. Reese. An individual refused to register an African American to vote and the individual who refused to do so was charged with a crime under the Enforcement Act of 1870 that made it a crime to deny someone the right to vote based on race.
The individual charged with the crime challenged the constitutionality of the Act with the 15th Amendment and claimed the provision of the Enforcement Act was unconstitutionally vague. His argument was if an individual denied someone the right to vote on a valid basis, they could be charged with a crime if it was denied from someone of a specific race. The Supreme Court struck down the law as unconstitutionally vague.
The Supreme Court interpreted the 15th Amendment as not conferring the right of “suffrage.” Suffrage is the right to vote in public. It determined the 15th Amendment only prevents the states from giving preference to one citizen of the United States over another on account of race. It noted that if there were qualifications to vote, it applied to all citizens and were neutral.
Because of the interpretation of the statute, it was interpreted as a limit on what Congress could do to enforce the law. It was also interpreted that denying someone the chance to vote based on a “neutral limitation” was legal. This was essentially the same type of logic in Plessy v. Ferguson. Again, with Plessy v. Ferguson the court claimed that the segregation laws on its face did not make another race inferior. Also here, the court claimed that laws that were neutral as to qualifications for voters would apply to both voters. These types of laws included, poll taxes, literacy tests and a grandfather clause if their grandfathers were registered voters. These types of laws were a staple in the South from 1890 – 1910.
Just like Plessy v. Ferguson, and despite the more clear language in the 15th Amendment unlike the 14th Amendment, the U.S. Supreme Court found that laws could be enacted to deter African Americans from voting. Also like Plessy v. Ferguson, the court never looked to see that even though the laws were facially neutral, that as applied, they discriminated against another race. The court knew full well that freed slaves had grandparents that could not vote and many African Americans were first-time voters.
It knew that most African Americans were illiterate due to their circumstances and that African Americans were as a whole less financially well off compared to white Americans. These courses of action also included other situations such as “white-male only” primary elections. This also included changing the voting area for African Americans at the last second. African Americans were also excluded from threats of violence from lynch mobs and the Klu Klux Klan. Voter suppression was a real thing full well after 1870.
States started to embrace the United States v. Reese decision and continued to enact laws to deter African Americans from voting.
The U.S. Supreme Court finally strikes down a voter law they could not overlook.
It got to the point where one state had finally crossed the line. In 1915, in Guinn & Beal v. United States the U.S. Supreme Court finally started to “read between the lines” on a State Oklahoma constitution grandfather clause that exempted individuals from a literacy test. This also involved individuals that were charged with a crime for denying African Americans the right to vote under language of the constitution.
The language allowed individuals to still vote if they had the right to vote prior to January 1st, 1866 or if they had ancestors that did. Still, the court could claim that it was facially neutral as it did in United States v. Reese but the problem was the date that was on-par with the dates related to the emancipation proclamation and the 15th it could be only inferred the only reason for this was to allow white voters who could not read or write be allowed to vote and not other races. As a result, this decision started to quell state laws that were as applied, discriminatory toward race, however, this also only related to an issue that arose in a general election and did not address primary elections.
The 14th Amendment comes into save the 15th Amendment and racial biased voting laws.
The court again addressed racial-biased voting issues in decisions known as the “Texas Primary Cases” around 1927. An individual sued for being denied a ballot in the Democtractic primary on the basis of race and the court found in his favor under the 14th Amendment under equal protection. After that, Texas changed the laws to allow political party committees to set voting qualifications. The individual sued again and the court found in his favor again in violation of the 14th Amendment. The U.S. Supreme Court said then that the14th Amendment:
“not only gave citizenship and the privileges of citizenship to persons of color, but
it denied to any State the power to withhold from them the equal protection of the
laws. . . . What is this but declaring that the law in the States shall be the same
for the black as for the white; that all persons, whether colored or white, shall
stand equal before the laws of the States, and, in regard to the colored race, for
whose protection the amendment was primarily designed, that no discrimination
shall be made against them by law because of their color?”
Despite this, this language did not overturn the “separate but equal” analysis. However, it was one of the first times a court found that the 14th Amendment was a defender of race. However, in 1935, the U.S. Supreme Court found that Democracy Parties could ban African Americans from voting in the primary elections because the action was not state action with the 15th Amendment did not forbid. It was action from the political party. This again caused a set-back and allowed political parties to still discriminate based on race in the primary races.
This was later overturned in 1944 in Terry v. Adams where the court had to interpret the term “elections” in the 15th Amendment where the court concluded it included any election in which public issues are decided or public officials are selected. It indicated where the state permits within its borders the use of any device that produces an equivalent of the prohibited election it violates the 15th Amendment.
The result of court enforcement of the 15th Amendment led to increase of African American voter registrations from five percent to 28 percent in 1960 and 63 percent in 1976. So up to 1960, the 15th Amendment only got it to the point where 5 percent of African Americans could register to vote. In 1962, the twenty first amendment was enacted, effectively banning poll taxes in federal elections.
The voting Act Rights of 1965 required all states with history of racial discrimination to submit all changes to their voting laws to the federal government for approval. Voter registration for African Americans reached 63 percent in 1963. However, in 2013 the U.S. Supreme Court found the pre-approval section, where states that had a history of racial bias laws, required approval from Congress prior to its enactment, was no longer constitutional and exceeded the powers of the 15th Amendment, which can be argued was again a step-back for the 15th Amendment without states being required to have their laws approval by Congress.
A look at the history of voter rights for African Americans shows that even though laws that are enacted to protect an individual, may not in practice or in interpretation protect that individual based on the societal norms at the time. It took over a hundred years for the 15th Amendment to effectively do what it was supposed to do through court interpretation and other laws used to enforce the Amendment. What is troubling about the situation, is if laws are against you that restrict you to choose a representative to pass laws in your interest, how can the situation ever change and resolve itself?
It also should be a message to all of us on how the right to vote should be unfettered no matter how different an opinion a person has. Even if it isn’t a racial issue, no one should ever find a way to restrict another to voice their opinion on who should represent them in this country. It is also a reminder that this country is not perfect and was never perfect from the start and this is still a learning process. It should be celebrated as to how far we have come so far and have given the meaning of the 14th Amendment and 15th Amendment to what it should be. However, it should also be remembered that many individuals of the past have suffered through this learning process. Hopefully we continue in a manner where every individual is afforded equal protection under the laws and this country moves upwards toward protecting liberty and democracy and not backwards.
Brian K. Jackson, LLC 