The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
Sudler Family Professor of Constitutional Law, New York University School of Law
Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School
Most Americans probably believe the “right to vote” is one of their most fundamental constitutional rights. It will come as a surprise, therefore, to learn that neither the original Constitution nor the Bill of Rights nor any other provision of the Constitution expressly guarantees the right to vote. Only in the 1960s, when the Supreme Court began to conclude that the Fourteenth Amendment implicitly protected the right to vote, did American constitutional doctrine begin to treat the right to vote as a fundamental constitutional right. Once the Court recognized the right to vote, decisions of the Supreme Court helped revolutionize the way voting was treated under American constitutional law. Most of the law concerning “the right to vote” developed under the Fourteenth Amendment, though important Court decisions also have relied at times on the Fifteenth Amendment.
The reason the original Constitution and the Bill of Rights do not expressly protect the right to vote is that doing so would have been too controversial and divisive at the time. Different states had different rules for who could vote (many states had property-holding requirements and differed on the amount; some states permitted women and free black men to vote, others did not). To create a uniform standard across the country would have required resolving these major differences. The only place where voting is directly recognized in the original Constitution is for choosing members of the House of Representatives; Article I, Section 2 provides that the people eligible to vote for members of the U.S. House will be determined by whom the States let vote for their own house of representatives. Since the Civil War, many constitutional amendments address voting issues, but these amendments are written to prohibit certain bases for denying the vote to some people once the vote is extended to others: the Fifteenth Amendment prohibits racial discrimination in the vote; the Nineteenth Amendment prohibits discrimination based on sex; the Twenty-Fourth Amendment prohibits the use of poll taxes in national elections; and the Twenty-Sixth Amendment prohibits denying the vote to those over 18 years of age.
But in terms of constitutional decisions of the Supreme Court, the two most important provisions with respect to the vote have been the Fourteenth and, to a lesser extent, the Fifteenth Amendments. Although the Fourteenth Amendment was not designed to protect the right to vote and does not expressly mention it, two lines of Supreme Court decisions have provided important protections since the 1960s. In the first line of cases, the Supreme Court created the “one-vote, one-person” doctrine, which requires that there must be fairly equal numbers of people in election districts when electing representatives to a political body—for example, all the congressional districts in a state must have the same number of people. Before the decisions in Baker v. Carr (1962), Reynolds v. Sims (1964), and similar cases, some districts in a state might have had 900,000 people, others only 100,000 people, but voters in each district would elect one representative to Congress. The Court concluded that the Fourteenth Amendment reflected principles of political equality that required each district have, to the extent possible, an equal number of residents, which is what one-vote, one-person means.
The second area of important decisions involves the right to get to the ballot box and cast a vote. Again under the Fourteenth Amendment, the Supreme Court first began to recognize this right in the 1960s, in Harper v. Virginia Board of Elections (1966), Dunn v. Blumstein (1972) and many other cases, the Court decided that restrictions on who could vote would be subject to strict scrutiny, the most demanding judicial standard. Once this standard was announced, the Court quickly held unconstitutional virtually all restrictions on voting other than (1) citizenship; (2) residency in the jurisdiction; and (3) age under 18. To evaluate other regulations on the voting process, the Court in later cases, such as Burdick v. Takushi (1992) has created a two-part test that first requires courts to decide if a burden on the right to vote is “severe” or not. If it is, the regulation can survive only under strict scrutiny, which most regulations fail. But if the burden is not severe, the regulation is much more likely to be upheld. Most current constitutional controversies about regulations of the voting process take place under this Burdick framework and require courts to decide, first, whether a regulation imposes a severe burden on the right to vote.
Added to the Constitution in 1870, the Fifteenth Amendment was the final of the three constitutional amendments enacted during Reconstruction in the aftermath of the Civil War. While the Thirteenth Amendment prohibited slavery, and the Fourteenth Amendment barred states from denying “equal protection of the laws,” the Fifteenth Amendment established that the right to vote could not be denied on the basis of race. Though its express terms prohibit all racial discrimination in voting qualifications, the Amendment was aimed at ensuring the enfranchisement of African-Americans. Section 2 of this short but momentous Amendment also gave Congress the power to enact legislation to enforce the right against race-based denials of the vote. The constitutional meaning of the Civil War was reflected in these three amendments; when the Fifteenth Amendment was passed, it represented the principle that African-American citizens—many of them former slaves—were now entitled to political equality.
Yet the most significant fact about the Fifteenth Amendment in American history is that it was essentially ignored and circumvented for nearly a century. This history illustrates that constitutional rights can be little more than words on paper unless institutions exist with the power to make sure those rights are actually enforced. For the first twenty to thirty years after the Amendment was adopted, black adult men (women were generally not permitted to vote at this time) were indeed permitted to vote—and did so in large numbers. Nearly 2,000 African-Americans were elected to public offices during this period. But starting in 1890, Southern states adopted an array of laws that made it extremely difficult for African-Americans (and many poor whites) to vote. This was the start of what is known as the era of disenfranchisement, and it lasted all the way up until 1965. These laws required people to demonstrate literacy, or prove their good character, or pay certain voting taxes, or overcome other hurdles, before they were permitted to vote. As a result of these laws, African-American voting in the South was kept at extremely low levels from 1890 to 1965, despite the Fifteenth Amendment.
Early on in this process of disenfranchisement, the Supreme Court was asked to hold these laws unconstitutional. But in a 1903 case called Giles v. Harris (1903), the Supreme Court refused to do so; the Court stated that it did not have the power to force Southern states to comply with the Fifteenth Amendment. Later that year, in James v. Bowman (1903), the Court held that the Amendment did not authorize Congress to punish private individuals who interfered to prevent African-Americans from voting.
The Supreme Court did eventually invoke the Amendment to hold unconstitutional a few of the specific laws that sought to block African-Americans from effective political participation. In 1944, for example, the Court held unconstitutional rules that in some Southern states prohibited black citizens from voting in political primary elections. Smith v. Allwright (1944). In a well-known case, Gomillion v. Lightfoot (1960), the Supreme Court held that that City of Tuskegee, Alabama, had violated the Fifteenth Amendment when it re-drew the city’s boundaries from a square to an “uncouth twenty-eight sided figure” that put the residences of nearly all black people outside the city’s boundaries. Yet as of 1965, it was still the case that in Mississippi, for example, only 6.3% of African Americans were able to register to vote.
The situation only began to change dramatically in 1965, when Congress used its power to enforce the Fifteenth (and Fourteenth) Amendment by enacting the Voting Rights Act of 1965 (the VRA). The VRA provided a variety of means for the federal government and the federal courts to ensure that the right to vote was not denied on the basis of race.
In modern constitutional law, the Fifteenth Amendment plays a minor role. The reason is that other, broader sources of law have emerged to protect the right to vote. In the 1960s, the Supreme Court concluded that the Fourteenth Amendment protects the right to vote as a general matter, while the Fifteenth Amendment is more limited to protecting against only race-based denials of the right to vote. In addition, federal statutes, such as the VRA and others, now exist to protect the right to vote as well. When cases involving issues of race and the vote are brought today, they will typically be brought simultaneously under the Fifteenth and Fourteenth Amendments, as well as the VRA.
If a law explicitly imposes different rules by race for access to the ballot, there is little doubt the courts today would hold such a law to violate the Fifteenth Amendment. The one case like this in recent decades came from Hawaii, where a law permitted only Native Hawaiians, not all Hawaiians, to vote for certain officials. The Supreme Court concluded that a law limiting who could vote based on their ancestry was equivalent to a law that limited the vote based on race and that Hawaii’s law therefore violated the Fifteenth Amendment. Rice v. Cayetano (2000). But if a voting law does not impose different rules by race, and is challenged as nonetheless racially discriminatory, the Court has concluded that the challenger must show that the law is based on a racially-discriminatory purpose before the Fifteenth Amendment is violated. Mobile v. Bolden (1980).
Although the Fifteenth Amendment does not play a major, independent role in cases today, its most important role might be the power it gives Congress to enact national legislation that protects against race-based denials or abridgements of the right to vote.
