Third, its limitations apply only to action of a State or the United States and not to individual action, even though such action might result in denying to an individual his right of suffrage because of race, color, or previous condition of servitude.&

Fourth, even where there is action by a State that prevents a citizen, black or white, from voting, there is no violation of the Fifteenth Amendment unless the action is taken because of the voter's race, color, or previous condition of servitude.86

Fifth, while initially it seems to have been assumed that Congress did not intend the legislation it enacted pursuant to this amendment to apply to State and local elections, it now is applied to elections for State as well as for Federal offices.88

87

LITERACY TEST

A significant use of the Fifteenth Amendment has been to circumscribe the application of literacy tests which are ostensibly intended. to determine whether the prospective voter is qualified to make an informed political choice.

89

Mississippi's literacy test, which was typical of those then in effect, was indirectly sustained in 1898 by the Supreme Court in Williams v. Mississippi. Since it did not on its face discriminate against Negro voters and there was no showing that it had been administered for this purpose, it was held to be not in violation of the Fifteenth Amendment.

Until 1915, restrictions on Negro suffrage continued to meet with little interference from the Supreme Court." In that year the Oklahoma "grandfather clause" was struck down by the Court in Guinn v. United States 91 as a violation of the Fifteenth Amendment. This ingenious device was similar to others that had been earlier adopted in some half dozen other southern States. The clause set up a literacy test based on the ability to read and write any section of the Oklahoma constitution. It then provided a loophole for the escape of illiterate whites by exempting those whose ancestors were qualified to vote as

Corwin, op. cit. supra note 67, at 1186. United States v. Reese, 92 U.S. 214 (1876); United States v. Amsden, 6 Fed. 819, 822–23 (D. Ind. 1881).

United States v. Amsden, supra; James v. Bowman, 190 U.S. 127 (1903). "James v. Bowman, supra, at 142.

"Chapman v. King, 154 F. 2d. 460 (5th Cir, 946). Cert. denied, 327 U.S. 800 (1946). The Court noted that the statute, 42 U.S.C. 1971(a) enacted pursuant to the Fifteenth Amendment, "makes no difference between elections touching State offices and those touching Federal offices, but applies in terms to all elections by the people, and the Fifteenth Amendment, to enforce which the statute was made, is broad enough to include them all." It should be observed, however, that this case involved denial of the right to vote at an election in which nominees for the U.S. Senate and House of Representatives, as well as for State offices in Georgia, were being chosen.

*170 U.S. 213 (1898). See Corwin, op. cit. supra note 67, at 1185-86.

"But see Ex parte Yarbrough 110 U.S. 651 (1884).

238 U.S. 347 (1915). See Corwin, op. cit. supra note 67, at 1184.

of January 1, 1866-a date when no Negro in the State was qualified to vote. This made it clear, the Court held, that Oklahoma's "grandfather clause" had racial discrimination in voting for its purpose.

The following year, the State sought to achieve the same purpose through a "sophisticated" registration procedure. The new suffrage law, enacted by The Oklahoma Legislature in 1916, provided that persons who had voted in the general election of 1914, held under the invalid "grandfather clause," were automatically placed on the register of voters for life. All other voters were required to register within a specified 12-day period or be permanently disfranchised. In an action brought by a Negro citizen who was refused the right to vote in 1934 because he had failed to register within this prescribed period in 1916, the Court held this registration scheme to be racial discrimination in violation of the Fifteenth Amendment.92 Said Justice Frankfurter for the Court:

[This Amendment] nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.

THE SEVENTEENTH AMENDMENT

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

This Amendment, ratified in 1913, substituted direct popular election of U.S. Senators for the original constitutional method of selection by State legislatures."

93

It had previously ruled that one's right to vote for Members of the House of Representatives was derived from and secured by the Constitution of the United States," now the Supreme Court similarly declared that if a person possessed the qualifications requisite for voting for a Senator, his right to vote for such an officer was not merely derived from the constitution and laws of the State but was grounded in the Constitution of the United States.95 On the basis of

Lane v. Wilson, 307 U.S. 268 (1939). See Corwin, op. cit. supra note 67, 1184. Practical disadvantages and improprieties involved in legislative selection of Senators had become highly unpopular. Vacancies remained unfilled for substantial periods due to deadlock within legislatures. Evidence of insidious and corrupt activities, including purchase of leglislative seats, had begun to mount.

Prior to ratification of the Seventeenth Amendment a number of States had not only made efforts, but had instituted procedures designed to afford the voters more effective control over the selection of Senators. In fact, by 1912 at least 29 States were effectively nominating Senators on a popular basis, so that the discretion of the legislators had been curtailed severely. Corwin, op. cit. supra note 67, at 1203.

4 Ex parte Yarbrough, 110 U.S. 651 (1884).

United States v. Aczle, 219 F. 917 (1915).

96

this premise, it has been held that when local party authorities refused to permit a Negro, on account of his race, to vote in a primary election for the office of U.S. Senator, they deprived him of a right secured to him by the Constitution and laws in the Seventeenth Amendment.

CIVIL AND CRIMINAL STATUTES

Not until 1870 did Congress utilize, in a significant manner, its constitutional right to legislate in the election field. As noted earlier, most of the provisions of the Civil Rights Act of 1870 97 were subsequently repealed or held unconstitutional. Nonetheless, it is the taproot from which spring most of the present Federal election laws. The following civil and criminal remedies, provided by Congress to protect suffrage rights, are operative today:

(1) Criminal penalties can be assessed against any person who seeks to intimidate a person in the exercise of his voting rights.98

(2) Civil sanctions are available to protect suffrage rights from infringement through conspiracies." If two or more persons conspire to prevent by any means one lawfully entitled to vote from voting in an election to select presidential electors, the person so deprived has an action for damages against the conspirators.1

(3) Criminal sanctions cover conspiracies to injure, oppress, or intimidate citizens in the exercise of federally secured rights and privileges. They also cover the willful subjection of any inhabitant under color of law to the deprivation of rights, privileges, or immunities secured by the U.S. Constitution and laws, or to discriminatory pains and punishments on account of race, color, or alienage. These statutes have been used commonly in the voting area.

(4) The Civil Rights Act of 1957 is concerned directly with the elective franchise. Section 1971 (a), derived from the Civil Rights Act of 1870, declares that all citizens otherwise qualified shall be allowed to vote without regard to race, color, or previous condition of servitude. Section 1971 was amended by the Civil Rights Act of 1957, which added four provisions, in substance as follows:

In this case the local party authorities acted pursuant to regulations prescribed by a party's State executive committee. Corwin, op. cit. supra note 67, at 1208.

Chapman v. King, 154 F. 2d 460 (1946); certiorari denied, 327 U.S. 800 (1946). * 16 Stat. 140.

18 U.S.C., sec. 594 (1952).

* 42 U.S.C., sec. 1985 (3) (1952).

1 While 42 U.S.C. 1985 (3) (1952) has been invoked extensively in its broader application to conspiracies to deprive a person of other civil rights, it has rarely been used in protecting voting rights.

18 U.S.C. 241.

18 U.S.C. 242.

442 U.S.C. 1971.

This section has been sustained as a valid exercise of congressional power under the Fifteenth Amendment. In re Engle, Fed. Cas. No. 4488 (C.C.D., Md. 1877).

(1) Section (b) declares that no person shall intimidate, threaten or coerce, or attempt to intimidate, threaten or coerce, another for the purpose of interfering with his right to vote in any election in which a Federal officer is to be selected."

(2) Section (c) gives to the Attorney General of the United States power to institute, for or in the name of the United States, any civil action or proper proceeding for preventive relief, whenever any person had deprived or is about to deprive another of rights secured in sections (a) and (b).'

(3) Section (d) gives to the Federal District Court jurisdiction of proceedings instituted under Section (c). Of consequence is the provision that the Federal Court should entertain such proceedings without requiring that the party aggrieved first exhaust his State administrative or other remedies. (4) Section (e) establishes contempt proceedings and provides for the rights of individuals cited for contempt of an order issued in an action instituted under Section 1971.

In the absence of section 1971 the existing Federal statutes pertaining to voting afford less than complete protection. For example, 1971 (a), which contains the declaration of voting rights, makes the criminal sanctions more specifically applicable to voting and thus more effective. The civil sanction, which seeks to protect suffrage rights from infringement through conspiracies, is limited in its application to elections to select presidential electors. The criminal penalties that can be assessed against persons who intimidate others in the exercise of their voting rights purport to apply to any election.10 But by definition primary elections or conventions of a political party are excluded." Thus only when section 1971, which does include primaries, is combined with the criminal sanctions contained in sections 241 and 242 can prosecuting authorities reach proscribed election activities which occur in a primary election.

Section 1971(a), which states that all citizens otherwise qualified shall be allowed to vote without regard to race, color or previous condition of servitude, is a valid exercise of congressional power under the Fifteenth Amendment. It extends the power of Congress to elections in which State or Federal officials are to be selected.12 To the extent that the conduct relied upon to establish a deprivation of the right to vote is attributable to the State or Federal Government, and not to private individuals, there can be no question as to the validity of this section.

Section 1971 (b) employs language regarding intimidation of voters paralleling that statute which assesses criminal penalties for such

This provision specifically includes general, special, and primary elections and declares that the action need not be taken under color of law to constitute the conduct prohibited. The potentialities inhering in this section are considered in 71 Harv. L. Rev., 573 (1958). 818 U.S.C. 241, 242.

42 U.S.C., sec. 1985 (3) (1952).

10 18 U.S.C., sec. 594 (1952).

" 18 U.S.C., sec. 591 (1952) sets forth the definitions to cover that part of the criminal code dealing with elections.

"Chapman v. King, 154 F. 2d 460 (5th Cir. 1946), cert. denied 327 U.S. 800 (1946).

acts.13 However, it brings such action within the scope of the new injunctive remedy created by 1971(c). In short, section 1971, as amended by the Civil Rights Act of 1957, protects the rights to vote for State and local officials by use of the injunctive remedy and covers even threatened violations of the right to vote. On its face it appears to extend only to interference by State action; not private interference.14

A unique contribution to the field of voting protection is the device of allowing the United States through the Attorney General, to institute civil actions to protect private individuals from infringement of their right to vote. It appears to be the first time the Federal Government has been empowered to institute such civil actions in the field of civil rights.15 It should be noted that the Attorney General may institute a suit, if in his sound discretion he deems it necessary to do so, without relying upon the consent of the individual whose rights have been infringed. Beyond that, the action may be brought in the Federal district court initially. This procedure may allow relief before it is too late; i.e., before the election is held. The import of this extension in the power of the Federal Government can only be theoretically analyzed at this point in the absence of positive judicial construction. In theory, however, it means that, where criminal convictions might not be secured, the United States may seek redress of wrongs against an individual who does not bring a civil action in his own behalf, whether the cause be indifference, intimidation, poverty, or any other reason.

13 18 U.S.C. 594 (1952).

*See, for example, 71 Harv. L. Rev., 573-574 (1958); 56 Mich. L. Rev., 619 (1958). "It is by no means the first time the Federal Government has taken upon itself the obligations to protect the rights of private individuals through civil remedies. See, e.g., Sherman Antitrust Act, 15 U.S.C. 4 (1952); Fair Labor Standards Act, 29 U.S.C. 216(c) (1952); Emergency Price Controls Act of 1942, Appx. 925 (a) (1952).