Taking Voting Rights Seriously: Rediscovering the Fifteenth Amendment

Nebraska Law Review Volume 64 | Issue 3 Article 3 1985 Taking Voting Rights Seriously: Rediscovering the Fifteenth Amendment Emma Coleman Jordan University of California at Davis School of Law, Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Emma Coleman Jordan, Taking Voting Rights Seriously: Rediscovering the Fifteenth Amendment, 64 Neb. L. Rev. (1985) Available at: https://digitalcommons.unl.edu/nlr/vol64/iss3/3 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Emma Coleman Jordan* Taking Voting Rights Seriously: Rediscovering The Fifteenth Amendment** TABLE OF CONTENTS I. Introduction ............................................... II. Tracing the Development of Fifteenth Amendment Theory ..................................................... A. Early Efforts to End the Reign of Terror at the Ballot Box ............................................ B. Origins of Judicial Intervention to Protect Black Voting Rights ......................................... 1. The Fifteenth Amendment Challenges of 1915 .... 2. The Two Fourteenth Amendment Cases .......... 3. New Grandfather Clauses, Vote Fraud, "Understand and Explain" Tests, and White Party Prim aries .......................................... C. Gomillion v. Lightfoot: A Crossroads? .. . . . . . . . . . . . . . . III. The Penumbra of the Fourteenth Amendment: The OnePerson, One-Vote Apportionment Cases .................. A. The Concern for Judicial Manageability .............. B. Mathematical Equality: A Substitute for Representation ........................................ 1. The Talisman of Mathematical Precision .......... 2. The Double Standard of Apportionment .......... C. The Constitutional Dilution Suit ...................... 1. Setting Standards for Court Ordered Plans ....... 2. The Struggle Over Standards of Proof In Dilution Claim s ............................................. IV. Racial Dilution Claims Under the Voting Rights Act ..... V. The Future of the Fifteenth Amendment ................. * ** 390 393 393 397 398 400 402 406 408 408 410 412 415 418 423 425 431 436 Professor of Law, University of California, Davis. I thank my colleague Floyd F. Feeney and Dean Derrick Bell for helpful comments on an earlier draft; I also thank Katherine R. Poss, University of California, Berkeley, Boalt Hall, 1985, and flene Goldstein Block, University of California, Davis, King Hall, 1984, for their invaluable efforts as research assistants. NEBRASKA LAW REVIEW A. VI. [Vol. 64:389 Congressional Power .................................. 1. The Scope of Permissable Action .................. 2. The Fifteenth Amendment Rationale for Safe Districting and Proportional Representation ...... Conclusion ................................................. I. 436 436 440 443 INTRODUCTION This Article presents an approach, a perspective for analyzing the racial dilution strand of voting rights cases. Emphasizing the fifteenth amendment, it suggests that the conceptual failure of the United States Supreme Court and commentators to fulfill the promise of fair and effective representation is due to a persistent refusal to embrace fully the independent rights afforded by the fifteenth amendment. The fifteenth amendment alone offers a unique vantage point, in which the special protection of the Constitution is extended to racial minorities who seek to participate in this democracy by voting. By virtue of the fifteenth amendment, we can approach the questions arising from the loss of political representation for minorities as separate from the loss of representation to all voters arising from malapportioned districts of unequal population. The Court has recognized that racially conscious measures may be required to insure truly fair and effective representation.1 Thus, the Court has ventured, albeit indecisively, toward recognition of the constitutional value of special measures to preserve or enhance the polit1. A recent case, in which approval was given to a race conscious remedy is Mississippi Rep. Exec. Comm. v. Brooks, 105 S. Ct. 416 (1984) (summary affirmance (72) of district court decision to set aside its own earlier redistricting plan for Mississippi's congressional districts, designed to remedy population disparities of up to 17 percent). A second plan was adopted after the case had been remanded by the Supreme Court for reconsideration in the light of the 1982 amendments to the Voting Rights Act of 1965, 42 U.S.C. § 1973 (1982). See Brooks v. Winter, 103 S. Ct. 2077 (1983). On remand, the district court redrew the district map so that the percentage of black citizens of voting age would be increased from 48.05 percent to 52.83 percent. The district court sought to apply the new amendments of § 2, which it concluded required the establishment of a "clear black voting age population majority." The court found that this remedy was required because of the continuing and present effects of Mississippi's "long history of de jure and de facto race discrimination, [the presence of racial block voting, and] political processes [which] have not been equally open to blacks." Mississippi Rep. Exec. Comm. v. Brooks, 105 S. Ct. 416, 417 (Stevens, J., concurring) (quoting App. to Motion to Dismiss or Affirm of Owen H. Brooks 14). Justices Rehnquist and Burger argued in dissent that the district court misconstrued the requirements of the amendments of § 2. In their view the present effects of the history of prior discrimination could not justify the creation of a safe district. They argued that "in amending § 2 Congress did not intend courts to supersede state voting laws for the sole purpose of improving the chance of minorities to elect members of their own class ... [and also that] 'past discrimination cannot, in the manner of original sin, condemn governmental action that is 19851 15TH AMENDMENT ical effectiveness of racial minorities. The Court has, on at least three occasions, 2 found itself sharply divided over the rationale for race conscious remedies to preserve or enhance minority voting power. Thus, we have been left with a series of decisions that buttress the political cohesiveness of racial minorities without a coherent rationale to guide future cases. These decisions have been especially disappointing because the Court has seemed to strain to avoid placing any significant 3 reliance on the fifteenth amendment. Indeed, after Mobile v. Bolien, one could fairly conclude that the Court had sounded the death knell for the fifteenth amendment,4 thus confining its implementation to Congress under the Voting Rights Act. As a consequence, fourteenth amendment theory dominates the disposition of voting rights claims today. If the fifteenth amendment (...truncated)