South Carolina v. Katzenbach

Context

In the years following the Civil War, hope dawned for the nation’s millions of African Americans that freedom would bring with it a full entry into American public life—an entry best represented by the right to vote. Most Americans understood the Thirteenth Amendment’s requirement (1865) that “neither slavery nor involuntary servitude … shall exist within the United States” to mean that newly freed blacks would acquire all aspects of freedom, including the right to vote. The Fourteenth Amendment’s promise (1868) of equal protection and its defense of the “privileges or immunities of citizens of the United States” added support to newly freed African Americans’ claims to the right to vote. Finally the Fifteenth Amendment (1870) declared: “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.” It seemed that the path to the polls would be a clear and simple one for African Americans.

Events proved otherwise. Most white southerners disliked the federally mandated program of postwar “Reconstruction” and opposed the Republican- and black-led governments organized under this process. As early as 1866, white terrorist organizations—the Ku Klux Klan being the best known—instituted waves of race-based violence and terror that soon spread across the South. In the worst instances, white mobs attacked entire groups of blacks, terrorizing most and killing many. Bad economic times, well-publicized political scandals, and heavy campaigning by Democrats among the region’s white voters added to the Republicans’ woes. The chilling effects of violence on black voting, not to mention election fraud by Democratic-leaning local white officials, led by the mid-1870s to the rise of Democratic “redeemer” governments opposed to all black civil and political rights.

Once in power, these white Democratic officials began a slow, steady, and ultimately successful campaign of race-based disenfranchisement. Among the techniques used to exclude black voters were the use of unfairly applied literacy or understanding tests in which voters had to read, understand, or interpret any section of the state constitution to the satisfaction of a white (and usually hostile) election official; complicated registration requirements that excluded minority voters on technical grounds; and financial barriers such as poll taxes. Intimidation and threats of violence were also effective means of keeping southern blacks from the polls. One of the simplest ways of undermining the black vote involved setting up polling places in areas inconvenient for blacks. Many polling places, for instance, were placed at distant locations or in the middle of white sections of the town or county. Similarly, some polls were established in businesses owned by known opponents of African American voting. Finally, in an effort to exclude all possibility that southern blacks could have a voice in government through the election process, state legislatures across the South implemented rules prohibiting blacks from voting in the politically dominant Democratic Party primaries. Since the Democratic candidate almost always won in the general election, this exclusion denied southern blacks a chance to participate in the one election that mattered most.

The results of such efforts were immediate and drastic. By 1896 black voter participation in Mississippi had declined to fewer than nine thousand out of a potential one hundred forty-seven thousand voting-age blacks. In Louisiana registered black voting had declined by 99 percent. Alabama had only three thousand registered black voters in 1902. Texas saw black voting decline to a mere five thousand votes by 1906. In Georgia, only 4 percent of black males were registered to vote as of 1910. In fact, across the entire region voter turnout fell from a high of 85 percent of all voters during Reconstruction to less than 50 percent for whites and single-digit percentages for blacks by the early twentieth century. Mid-twentieth-century attacks on a number of disenfranchising techniques in the federal courts resulted only in the revision and modification of these methods, not their abandonment. As late as 1940, only 3 percent of voting-age southern blacks were registered to vote. Fewer still were actually able to cast a meaningful ballot.

In the 1950s this situation began to change. By 1956, 25 percent of voting-age blacks were registered to vote; by 1964 this number had increased to 43.3 percent across the South. Raw numbers can be deceiving, however. Most registered black voters lived in the border states or in Florida; in the Deep South, where most blacks lived, African American voter registration stood at only 22.5 percent as late as 1964, with Mississippi setting the lowest standard at 6.7 percent (itself an increase from a rate of 1.98 percent a mere two years earlier). Worse yet, the application of such vote-dilution techniques as voting-list purges, at-large elections, and full-slate and majority-vote requirements—not to mention the ever-present threat of economic reprisals and physical violence against any black trying to vote—meant that, even in those areas where blacks could vote, actual African American voting rates were much lower.

The Voting Rights Act of 1965 was designed to directly combat this race-specific, regionally based disenfranchisement. Previous federal efforts to end southern black disenfranchisement in the courts had been ineffectual and even counterproductive. Civil rights legislation passed in 1957, 1960, and 1964 had expanded the federal government’s role in minority vote protection, but with few concrete results to show for the effort. The problem lay with the enforcement tools available to the federal courts. Litigation as an enforcement mechanism was a slow and unwieldy process. It offered recalcitrant southern election officials (not to mention segregationist federal judges) numerous opportunities for delay and obstructionism. Every time the courts overturned laws aimed at disenfranchising southern black voters, southern election officials simply turned to new or different techniques to achieve the same discriminatory end—techniques not covered by the courts’ orders and thus still permissible until invalidated by another court proceeding. In consequence, opponents of black vote denial were forced to initiate case after case in their efforts to gain the vote—with very little practical gain.

Expressly designed to attack the sources of delay in the case-by-case litigation approach, the nineteen sections of the Voting Rights Act imposed a completely new enforcement methodology for voting-rights violations. Not only did the act outlaw vote denial based on race or color in Section 2, it also gave both the executive branch and the federal courts a powerful new set of approaches for voting-rights enforcement. Among them were the power to appoint federal examiners and observers in whatever numbers the president felt necessary, prohibitions on literacy tests and poll taxes, and rules outlawing any action “under color of the law” that prevented qualified voters from voting or having their votes fairly counted. Most important of all, the act froze all southern election laws in place as of November 1, 1964. If local or state officials wanted to change an election law or procedure, they were required first to receive clearance from the Justice Department or the federal courts before acting. In this way, the southern strategy of using ever-shifting techniques of voter denial to derail election reforms was effectively ended. These enforcement provisions—along with the more general issue of congressional authority to adopt such extreme and powerful provisions—were what South Carolina challenged in South Carolina v. Katzenbach.