Shelby County v. Holder

570 U.S. ___ (2013)

 

[Majority: Roberts, Scalia, Kennedy, Thomas, Alito.  Dissenting: Ginsburg, Breyer, Sotomayor, Kagan.]

Chief Justice Roberts delivered the opinion of the Court.

The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.  Section 5 of the Act required States to obtain federal permission before enacting any law related to voting….  And §4 of the Act applied that requirement only to some States….  This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting….  Reflecting the unprecedented nature of these measures, they were scheduled to expire after five years.

Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031.  There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.…  Since [2009], Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent.…

The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.…

I-A.  The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War.  It provides that “[t]he 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,” and it gives Congress the “power to enforce this article by appropriate legislation.”

“The first century of congressional enforcement of the Amendment however, can only be regarded as a failure.”  Northwest Austin Municipal Util. Dist. No. One v. Holder (2009).[1]  In the 1890s, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African-Americans from voting.  [Eventually, starting in the 1950s][2] Congress passed [new] statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down….

Congress responded in 1965 with the Voting Rights Act.  Section 2 … forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”  Both the Federal Government and individuals have sued to enforce §2….  Section 2 is permanent, applies nationwide, and is not at issue in this case.

Other sections targeted only some parts of the country.  At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election.  Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like.  A covered jurisdiction could “bail out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.”  In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.  The additional covered subdivisions included 39 counties in North Carolina and one in Arizona.

In those jurisdictions, §4 of the Act banned all such tests or devices.  Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D.C.…   A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” …

In South Carolina v. Katzenbach (1966), we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.”

In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968.…  Congress also extended the ban in §4(a) on tests and devices nationwide.

In 1975, Congress reauthorized the Act for seven more years, and extended its coverage [based on voter] turnout as of 1972.  Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English … [and] made the nationwide ban on tests and devices permanent.

In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula.  Congress did, however, amend the bailout provisions….  Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a §2 suit, in the ten years prior to seeking bailout….

In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change to its coverage formula.  Congress also amended §5 to prohibit more conduct than before, [including] voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority

status, “to elect their preferred candidates of choice.”

Shortly after this reauthorization, a Texas utility district brought suit, seeking to bail out from the Act’s coverage and, in the alternative, challenging the Act’s constitutionality.  See Northwest Austin.  [In Northwest Austin, the Court held the district eligible for a bailout, but declined to rule on the VRA’s constitutionality.  In dicta, the Court “questioned whether the problems that §5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’”] …

II-B.  Shelby County is located in Alabama, a covered jurisdiction.…  [I]n 2010, the county sued the Attorney General in Federal District Court in Washington, D.C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement.  The District Court ruled against the county and upheld the Act.…

The Court of Appeals for the D.C. Circuit affirmed.  In assessing §5, the D.C. Circuit … accepted Congress’s conclusion that … §5 was … still necessary.

Turning to §4, the D.C. Circuit … looked to data comparing the number of successful §2 suits in the different parts of the country.  Coupling that evidence with the deterrent effect of §5, the court concluded that the statute continued “to single out the jurisdictions in which discrimination is concentrated,” and thus held that the coverage formula passed constitutional muster.…

1. In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” These basic principles guide our review of the question before us.

II-A.  The Constitution and laws of the United States are “the supreme Law of the Land.” U.S. Const., Art. VI, cl. 2.  State legislation may not contravene federal law.  The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect.…

Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives.  Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens.  Amdt. 10.…  But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

More specifically, “‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’”  Gregory v. Ashcroft (1991).  Of course, the Federal Government retains significant control over federal elections.  For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives.  Art. I, §4, cl. 1.  But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.”  Carrington v. Rash (1965).  And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.”  Boyd v. Nebraska ex rel. Thayer (1892).  Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.”  Perry v. Perez (2012).

Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States.  Northwest Austin.…

The Voting Rights Act sharply departs from these basic principles.  It suspends “all changes to state election law — however innocuous — until they have been precleared by federal authorities in Washington, D.C.”  States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action.…

And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties).…

All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.”  Katzenbach….  As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.”

II-B.  In 1966, we found these departures from the basic features of our system of government justified.…  Several States had enacted a variety of requirements and tests “specifically designed to prevent” African-Americans from voting.  Katzenbach.  Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting….

II-C.  Nearly 50 years later, things have changed dramatically.…  In the covered jurisdictions, “[v]oter turnout and registration rates now approach parity.  Blatantly discriminatory evasions of federal decrees are rare.  And minority candidates hold office at unprecedented levels.”  The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.…

The following chart … compares voter registration numbers from 1965 to those from 2004 in the six originally covered States.  These are the numbers that were before Congress when it reauthorized the Act in 2006:

	1965			2004
	White	Black	Gap	White	Black	Gap
Alabama	69.2	19.3	49.9	73.8	72.9	0.9
Georgia	62.[6]	27.4	35.2	63.5	64.2	-0.7
Louisiana	80.5	31.6	48.9	75.1	71.1	4.0
Mississippi	69.9	6.7	63.2	72.3	76.1	-3.8
South Carolina	75.7	37.3	38.4	74.4	71.1	3.3
Virginia	61.1	38.3	22.8	68.2	57.4	10.8

 

[T]here is no denying that, due to the Voting Rights Act, our Nation has made great strides.

Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way.…  In fact, the Act’s unusual remedies have grown even stronger.…  In light of [subsequent] amendments, the bar that covered jurisdictions must clear has been raised even as the conditions justifying that requirement have dramatically improved.…

The provisions of §5 apply only to those jurisdictions singled out by §4.  We now consider whether that coverage formula is constitutional in light of current conditions.

III-A.  When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.”  Katzenbach.  The formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both.

By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.”  Northwest Austin.  As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.

Coverage today is based on decades-old data and eradicated practices.  The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s.  But such tests have been banned nationwide for over 40 years.  And voter registration and turnout numbers in the covered States have risen dramatically in the years since.…

III-B. … [T]he Government … does not even attempt to demonstrate the continued relevance of the formula to the problem it targets.  And in the context of a decision as significant as this one … that failure to establish even relevance is fatal.

The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then — regardless of how that discrimination compares to discrimination in States unburdened by coverage.  This argument … relies on a comparison between the States in 1965.  That comparison reflected the different histories of the North and South.…

But history did not end in 1965.  By the time the Act was reauthorized in 2006, there had been 40 more years of it.…  And yet the coverage formula that Congress reauthorized in 2006 … keep[s] the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.…

The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future.…  To serve that purpose, Congress — if it is to divide the States — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.  It cannot rely simply on the past.…

III-C.  In defending the coverage formula, the … dissent … rel[ies] heavily on data from the record that they claim justify disparate coverage.  Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act.…    [H]owever, no one can fairly say that [this evidence] shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.

But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions.       It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.…

III-D. … There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago.  If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.  It would have been irrational for Congress to distinguish between States in such a fundamental way … when today’s statistics tell an entirely different story.…

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2.  We issue no holding on §5 itself, only on the coverage formula.  Congress may draft another formula based on current conditions.  Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” …

Justice Thomas, concurring. 

I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well.…

Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.

… With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated.  First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­sliding.  Those assessments were well within Congress’ province to make.…

1. … A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.…

Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens.…  Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second-generation barriers” to minority voting.

Second-generation barriers come in various forms.  One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.”  Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority.  By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes.        …  Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot.  Shaw v. Reno (1993); Allen v. State Bd. of Elections (1969); Reynolds v. Sims (1964) .…

In all, the legislative record Congress compiled [prior to the 2006 reauthorization] filled more than 15,000 pages.  The compilation presents countless “examples of flagrant racial discrimination” since the last reauthorization; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” …

1. … It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins (1886).  When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.

The basis for this deference is firmly rooted in both constitutional text and precedent.  The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.” In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v.  Maryland (1819) (emphasis added).

It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment….

The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States.  In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments.  McCulloch.  So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end.…

III.  The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch.…

III-A.  I begin with the evidence on which Congress based its decision to continue the preclearance remedy [of §5].…

All told, between 1982 and 2006, [U.S. Department of Justice (DOJ)] objections blocked over 700 voting changes based on a determination that the changes were discriminatory.  Congress found that the majority of DOJ objections included findings of discriminatory intent….

Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions.  Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency.…

Set out below are characteristic examples of changes blocked [pursuant to §5] in the years leading up to the 2006 reauthorization:

• In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987.…
• In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation” and ordered the district redrawn in compliance with the V League of United Latin American Citizens v.  Perry.  In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement.
• In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the bo The proposal, made without consulting any of the African-American members of the school board, was found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined, violated the VRA.

These examples, and scores more like them, fill the pages of the legislative record.  The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.” …

III-B.  I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b).…  The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions.

There is no question, moreover, that the covered jurisdictions have a unique history of problems with racial discrimination in voting.…  The Court criticizes Congress for failing to recognize that “history did not end in 1965.” But the Court ignores that “what’s past is prologue.”  And “[t]hose who cannot remember the past are condemned to repeat it.” …

Congress learned of [current] conditions through a report … that looked at §2 suits between 1982 and 2004.…  If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas.  The study’s findings, however, indicated that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin.…

The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country.  While racially polarized voting alone does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to discriminatory changes in voting law.…  First, racial polarization means that racial minorities are at risk of being systematically outvoted….  Second, … a governing political coalition has an incentive to prevent changes in the existing balance of voting power.  When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” …

1. … The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled.… Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” …

IV-A. Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization.…

“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”  Broadrick v. Oklahoma (1973).  Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit….  The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.…

In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama.  In Pleasant Grove v. United States (1987), the Court held that Pleasant Grove — a city in Jefferson County, Shelby County’s neighbor — engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood.…

Two years before Pleasant Grove, the Court in Hunter v. Underwood (1985) struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpitude” from voting … because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” …

A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics.  Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies.  The recorded conversations are shocking.  Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout.…  These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010.…

Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking.…

IV-B.  The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional.  It pins this result, in large measure, to “the fundamental principle of equal sovereignty.”  In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” …

In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach.…

IV-C.  The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States.  See, e.g., City of Boerne v. Flores (1997)….  No such claim can be made about the congressional record for the 2006 VRA reauthorization.…

But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” …  Congress, the Court decrees, must “star[t] from scratch.”  I do not see why that should be so.…

Congress could determine from the record whether the jurisdictions captured by the coverage formula still belonged under the preclearance regime.  If they did, there was no need to alter the formula.…

Consider once again the components of the record before Congress in 2006.  …  In light of this record, Congress had more than a reasonable basis to conclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas.…

The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed.  With that belief, and the argument derived from it, history repeats itself.…  Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights.  Katzenbach.  In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support….  In my judgment, the Court errs egregiously by overriding Congress’ decision.…

 

 

[1] The Chief Justice’s majority opinion does not discuss the common failure of the Court to construe the Constitution to protect democracy and the right to vote.  See, e.g., United States v. Cruikshank, 92 U.S. 542 (1876) (holding that the Constitution did not prevent states from violating the civil rights of their citizens); United States v. Reece, 92 U.S. 214 (1876) (noting that the effect of the Fifteenth Amendment was not to confer an absolute right to vote, only to prohibit discrimination; states could thus employ poll taxes, literacy tests, and other practices intended to prevent black citizens from voting so long as the law purported to treat white and black citizens equally); Giles v. Harris, 189 U.S. 475 (1903) (holding that the Court had no power to compel Montgomery County, Alabama, to add black citizens to its voter rolls, even if the suffrage provisions of the Alabama constitution violated the Fourteenth and Fifteenth Amendments); Giles v. Teasley 193 U.S. 146 (1904) (conceding that certain provisions of the Alabama constitution were intended to disenfranchise black citizens, yet still holding that the Fourteenth and Fifteenth Amendments did not grant federal courts the power to interfere in elections); Williams v. Mississippi, 170 U.S. 213 (1898) (holding that the suffrage provisions of Mississippi’s constitution, which required voters to pass a literacy test and pay a poll tax, though designed to suppress the black vote, were not discriminatory because they applied to both black and white citizens).  On the failure to enforce section 2 of the Fourteenth Amendment, see, e.g., Michael Kent Curtis, The Fourteenth Amendment: Recalling What the Court Forgot, 56 Drake L. Rev. 911, 955-61 (2008).  On Cruikshank, see generally Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (2008).  [Editor’s comment.]

[2] Explanatory material in brackets was added by the editor.