Voting: Rights, Acts, Bills, and Amendments

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Photo by Jennifer Griffin on Unsplash

The 15th Amendment was codified (arranged into the United States Code) in 1965 and is known as the Voting Rights Act of that year. There have since been four amendments, and a fifth is being drafted. According to an article in The Hill, Democrats are under a self-imposed deadline to pass voting rights legislation this month.  

I thought it helpful to provide an overview of the Voting Rights Act as it currently stands. This summary references the amendments to date and is overly simplified for this space. Unless text appears in “quotation marks,” it is paraphrased. I begin with definitions to aid comprehension of the text. Lastly, lowercase letters in parentheses, for example (a), refer to subsections.

15th Amendment aka Amendment XV and codified at 52 U.S.C. 10301-10314, 10501-10508, and 10701-10702

Section 1. 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. 

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Photo by Unseen Histories on Unsplash

Definitions:

Sec. 13 (c)(1)“’vote’ or ‘voting’ shall include all action necessary to make a vote effective in any primary, special or general election, including, but not limited to, registration, listing… or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. (2) The term “political subdivision” shall mean any county or parish, except that, where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.”  Sec. 4(c) defines “test or device” as any requirement to determine voters’ literacy, knowledge or education level; moral character; or to prove qualification by voucher or membership. “Shall” is a directive; whereas, “may” implies that to perform (do an action) or not is the discretion of the official to whom the Codes are delegated. (Refer to a law dictionary.) “Equitable relief” means a court’s order for something to be done, or to stop something from being done, when money isn’t enough to satisfy the injury.

The Voting Act

Sec. 1. “this Act shall be known as the “Voting Rights Act of 1965.”  

Sec. 2.  States cannot impose any qualifications, eligibility rules, standards or processes (e.g. literacy tests) that will deny any citizen the right to vote based on race or color. Amended in 1982 to provide that plaintiffs didn’t have to prove the purpose of discrimination, i.e. race, color or language.

Sec. 3. (a) Whenever the Attorney General (AG hereafter) initiates a proceeding under statute, in any State or political subdivision, to enforce the rights guaranteed by the 15th Amendment, the court authorizes the United States Civil Service Commission (CSC hereafter) to appoint Federal examiners, according to Sec. 6., for enforcement. The court’s determination may be an interlocutory order (provisional) or a final judgment, depending on its findings. If the court finds that the number of incidents of denial of the right to vote based on race or color is low and have been corrected; that their continued effect has been removed and that reoccurrence isn’t probable, then the court doesn’t need to authorize the appointment of examiners. (b)  If the court finds that a test or other eligibility device has been used to deny any citizen the right to vote based on color or race, it shall suspend the use of said device(s) as deemed appropriate under certain conditions. (c) When the court finds that violations of the 15th Amendment have occurred in any proceeding commenced by the AG under any statute in any State or political subdivision, the court may grant equitable relief and it shall retain jurisdiction (authority) for as long as deemed necessary, and no changes to the existing voting procedures, qualifications or standards shall be made unless the court finds that such changes won’t deny one’s right to vote on account of race or color. Loophole: the voting procedures, qualifications or standards may be enforced if the chief legal officer or other appropriate official of the State or subdivision submits same and how they don’t violate the 15th Amendment to the AG, and s/he hasn’t objected within 60 days after the official’s submission. The court’s finding nor the AG’s failure to object doesn’t prevent the commencement of another action to enforce voting law. The 2006 Amendments eliminated the provision for voting examiners, in alignment with said devices causing too numerous court actions for discrimination.

Use of Tests or Devices Prohibited. Declaratory Judgment Proceedings

Sec. 4. No citizen will be denied the right to vote in any local, State or Federal election based  on race or color because s/he didn’t comply with any State test or device and it’s been determined that certain conditions of subsection (b) have been met or that a court decision in a separate matter had determined that no test or device has been used for five year before a pending action….This section outlines the courts authority and the conditions under which the AG can enter orders and judgments. (d) provides remedy to States that show “few” instances of using said devices that have been addressed; that lasting effect has been eliminated and that reoccurrence is unlikely. Subsection (e) secures the 14th Amendment rights of “American-flag school” students who speak a language other than English and prohibits States from denying their and any English as second language students who completed 6th grade or equivalent in a public or accredited private school the right to vote. 1982 Amendment extended these provisions for 25 years. 

Sec. 5. Provides special provisions targeting where Congress believed discrimination might be  greatest, with respect to the prohibitions of section 4(a). These jurisdictions couldn’t  implement changes to voting procedures without a court order, and the AG could appoint an examiner to review voters’ eligibility to vote. States and political subdivisions have to initiate a proceeding wherein they prove that the purpose of their changes doesn’t deny citizens the right to vote on account of race or color. See Supreme Court case Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) re: the unconstitutionality of poll taxes. Amendments in 1970 and 1975 preserved, extended and broadened how Sec. 5 could be interpreted, e.g. to gerrymandering (redistricting) and other manipulations.

Appointment of Examiners

Sec. 6. Whenever a court authorizes appointment of examiners pursuant to Sec. 3(a), or (b) unless a declaratory judgment (declares the rights of the parties involved) in accordance with section 4(a) has been made, the AG certifies (confirms as genuine, true and/or compliant) that s/he received 20 or more written complaints from residents from the State or political subdivision, or that in his/her judgment examiners are necessary to enforce voting law; the CSC shall appoint as many examiners as needed within the subdivision wherein the ratio of white to nonwhite persons registered to vote appears to be reason for violations (other considerations include whether substantial evidence exists in favor of real efforts for a subdivision to be in compliance with the 15th Amendment. Prior to the 2006 Amendment, the CSC was to appoint as many examiners as needed to prepare and maintain lists of eligible voters in local, State and Federal elections. The examiners, hearing officers authorized under sec. 9(a) and “other persons deemed necessary” to carry out provisions “shall be appointed, compensated and separated without regard to the provisions of any statute administered by the CSC, and service under this Act shall not be considered employment for the purposes of any statute administered by the CSC, except the provisions of sec. 9 of the Act of 1939, as amended (5 U.S.C. 118i), prohibiting partisan political activity: Provided, That the Commission is authorized, after consulting the head of the appropriate department or agency, to designate suitable persons in the official service of the United States, with their consent, to serve in these positions. Examiners and hearing officers shall have the power to administer oaths.” 

“And I pledge you that we will not delay, or we will not hesitate, or we will not turn aside until Americans of every race and color and origin in this country have the same right as all others to share in the process of democracy.”

Lyndon Baines Johnson: Remarks in the Capitol Rotunda at the signing of the Voting Rights Act August 6, 1965 Tweet

Duties of Examiners

Sec. 7. The Civil Service Commission (CSC hereafter) regulates the place examiners examine voting qualifications and the form of voter application; (b) places qualified applicants on voter list; certifies and transmits voter lists to election officials and Federal and state AGs. This section informs when lists are available to the public and the duties of the  State and local election officials. (c) Examiner is to give each person on list of eligible voters a certificate of eligibility to vote. (d) Examiners can remove a person from the list if s/he is successfully challenged or loses eligibility to vote under section 9 or State law that doesn’t violate the Constitution.

Observers at Elections

Sec. 8. Whenever an examiner also serves in any political subdivision, the CSC may assign officers to ensure that people eligible to vote are allowed to do so, and to enter any place votes are being counted that is within the political subdivision of the examiner to make sure votes are being properly counted. The person appointed must report to an examiner appointed for such political subdivision, to the AG, and to the court if applicable. Again, the 2006 Amendment removed the provision for examiners, so this will be a notable place of comparison when the revised bill drops!

Challenges to Eligibility Listings, Hearings

Sec. 9. Outlines the process for challenging a list of eligible voters, and provides that voter eligibility is determined by and according to regulations of the CSC, who, after consulting with the AG, instructs examiners. The CSC has the power to subpoena witnesses and the production of evidence in matters brought under this Section.

Poll Tax

Sec. 10. Poll taxes are established as a means of denying the right to vote and therefore unconstitutional. (b) The AG is authorized, pursuant to section 5 of the 14th Amendment and section 2 of the 15th Amendment, to initiate action against States or political subdivisions who require a poll tax as a condition to vote. (c) These actions are under the jurisdiction of the district courts of the United States, three judges of which must hear the case as early as possible and in an expedited manner. (d) If the court declares a poll tax constitutional, read carefully: “no citizen of the United States who is a resident of a State or political subdivision” that the AG determines maintained any test or device on 11/1/64, and the Director of the Census determines that less than 50% of those of voting age residing there were registered on 11/1/64 or that less than 50% of same voted in the presidential election of Nov. 1964 AND a judgment hasn’t been entered during the 1st year s/he is entitled to vote, shall be denied the right to vote for not paying a poll tax if he tenders payment of such tax for the current year to a designated collector at least forty-five days prior to an election. Said tax is remitted to the office of the State or local official authorized to receive it. 

Prohibitions

Sec. 11 No person acting under the appearance of legal authority that in reality doesn’t exist (color of law) shall deny an eligible voter the right to vote or fail or refuse to count or report the vote of whosoever is entitled. (b) No person acting under color of law or otherwise shall threaten, intimidate, coerce, or even attempt to coerce, intimidate or threaten another for voting, urging or aiding another to vote or otherwise exercising a right under sections 3(a), 6, 8, 9, 10 or 12(e). (c) Whoever gives false information to establish voter eligibility, conspires for same reason, or offers or accepts payment for voting or registration to vote, will be fined up to $10K, imprisoned up to five years or both. This provision is applicability only to federal elections. (d) Whoever conceals or gives false facts, makes false statements, or makes or uses false documentation in a matter pending under an examiner or hearing officer will be fined up to $10K, imprisoned up to five years or both. 

Sec. 12 Whoever deprives or attempts to deprive another of a right secured by sections 2-5, 7 or 10 or whoever violates section 11(a) or (b) will be fined up to $5K, imprisoned up to five years or both. (b) Whoever, within a year following an election in a political subdivision in which an examiner was appointed, destroys or in any way alters the marking of a paper ballot cast in said election, or alters any official record of voting tabulated from a voting  machine or otherwise, will be fined up to $5K, imprisoned up to five years or both. (c) Whoever conspires to violate provisions (a) and (b) or interferes with any right secured by sections 2-5, 7, 10 or 11(a) or (b) will be fined up to $5K, imprisoned up to five years or both. (d) The AG may commence an action on behalf of the United States for the prevention, restraint or other order against any one engaged or believed to be engaged in any act prohibited by sections 2 – 5, 7, 10-11, or subsection (b) of this section. Orders may include permitting persons listed to vote and to count the votes. (e) If examiners are appointed in any political subdivision and someone alleges within 48 hrs. of polls closing that they were not permitted to vote, in spite of their eligibility and listing as eligible, the examiner must notify the AG if the allegations are well-founded. The AG may then file an application with the presiding district court for an order providing for whatever remedy is needed to finalize election results, and the district court shall hear the matter and make a determination immediately. The remedy provided here doesn’t waive any remedy available under State or Fed law. (f) The district courts of the United States have jurisdiction of proceedings under this section, whether or not someone claiming rights under this Act has exhausted administrative or other remedies provided by law.

Listing Procedures, Termination

Sec. 13. Listing procedures shall be terminated whenever the AG notifies the CSC or  whenever the district court for DC renders a declaratory judgment in any political subdivision of any State where the Director of the Census has determined that more than 50% of the nonwhite persons of voting age residing there are registered to vote, placed on  appropriate voter registration roll and that there’s no longer cause to believe that racial discrimination may occur.

Criminal Contempt Proceedings

Sec. 14. Violations of this Act are criminal violations punishable under section 151 of the Civil  Rights Act of 1957 (42 U.S.C. 1995). Only the District Court of DC, or a court of appeals in proceedings under section 9, have jurisdiction to issue section 4 or 5 declaratory judgments, restraining orders or injunctions. Subsection (d) details procedures and limitations respecting subpoenas and witnesses who are required to attend the district court for DC. 

Sec. 15. A series of statutory amendments to Section 2004 of the Revised Statutes (42 U.S.C. 1971) have resulted in the word “Federal” being deleted “wherever it appears in subsections (a) and (c); (b) Repeal subsection (f) and designate the present subsections (g) and (h) as (f) and (g), respectively.

Armed Forces, Voting Rights Study

Sec. 16. The AG and the Secretary of Defense, together, were directed to study if any preconditions exist that could lend to the discrimination of members of the Armed Forces from voting. The two were to report to Congress no later than June 30, 1966 with a report of their study and to have included recommendations for the legislative prevention of discrimination in voting against those serving in the U.S. military. 

Sec. 17. Nothing in the Act is to be interpreted to deny any one registered in any state the right to vote. 

Appropriation

Sec. 18. Congress is authorized to allocate as much funding as needed for the enforcement of this Act. 

Sec. 19. If any part of this Act or the way it’s applied is found invalid by the Supreme court, the remaining parts and applicability are still valid.

To Be Continued...

MAYBE I’ll chart the contrasts once Democrats under Senate Majority Leader Charles E. Schumer release the revised voting rights bill. Surely, it’ll be a time-consuming, brain-frying feat. So, if the posting of a “part two” of this entry takes as long as the release of the revised bill, give me a pardon please, and grant that my case rests in the minds of SĀHGE students as we study the details in our civics class!

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Arden Santana

Arden Santana

Arden has over twenty years of experience in education administration, methodology, and pedagogy. She’s served children, adults and elders across the country through school systems, non-profit organizations, and family-owned and operated counseling and education programs. Arden enjoys reading, creating art with her daughters, hosting guests and loved ones, and traveling.

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