The Coming of the Fifteenth Amendment: The Republican Party and the Right to Vote in the Early Reconstruction Era

Louisiana Law Review Louisiana Law Review

Volume 82

Number 2

Winter 2022

Article 6

3-31-2022

The Coming of the Fifteenth Amendment: The Republican Party The Coming of the Fifteenth Amendment: The Republican Party

and the Right to Vote in the Early Reconstruction Era and the Right to Vote in the Early Reconstruction Era

Earl Maltz

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The Coming of the Fifteenth Amendment: The Republican Party and the Right to Vote in the

Early Reconstruction Era

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The Coming of the Fifteenth Amendment: The

Republican Party and the Right to Vote in the Early

Reconstruction Era

Earl Maltz

TABLE OF CONTENTS

Abstract ........................................................................................ 395

Introduction .................................................................................. 396

I. The Dispute Over African-American Suffrage in

The Early Reconstruction Era ...................................................... 398

A. African-American Suffrage and the Drafting

of the Fourteenth Amendment ............................................... 401

B. The Debate over African-American Suffrage,

1866-1868 .............................................................................. 408

II. The Drafting of The Fifteenth Amendment ................................. 418

A. The Aftermath of the Election ............................................... 418

B. The Congressional Debate ..................................................... 423

1. The Rejection of Statutory Change ................................. 425

2. Initial Consideration by the

House of Representatives ................................................ 427

3. Initial Consideration by the Senate ................................. 428

4. Response of the House of Representatives...................... 437

5. Senate Action .................................................................. 438

6. The House of Representatives Changes Course .............. 440

7. The Approval of the Conference

Committee Proposal ........................................................ 441

III. The Battle Over Ratification ........................................................ 443

Conclusion .................................................................................... 449

ABSTRACT

The year 2020 marked the 150th anniversary of the ratification of the

Fifteenth Amendment, the last of the three Reconstruction Amendments

that fundamentally transformed both the structure of the Constitution and

the nature of American federalism. The Fifteenth Amendment differed

396 LOUISIANA LAW REVIEW [Vol. 82

from its predecessors in a number of important ways. First, it was the only

one of the Reconstruction Amendments and remains the only part of the

entire Constitution to focus explicitly on race. In addition, the amendment

became the first provision of the Constitution to limit the power of the

state governments to establish the qualifications for voters in elections for

state office, providing that “[t]he right of citizens . . . to vote shall not be

denied or abridged . . . on account of race, color, or previous condition of

servitude”

and vesting Congress with the authority to enforce this

command by adopting “appropriate legislation.”

Thus, among other

things, the Fifteenth Amendment provided the most plausible source of

congressional authority for the passage of the Voting Rights Act of 1965—

a statute which was and continues to be, by any standard, one of the most

important civil rights measures that Congress ever adopted.

Nonetheless, unlike the Thirteenth and Fourteenth Amendments, legal

scholars have shown relatively little interest in exploring the background

of the Fifteenth Amendment. This Article describes both the sequence of

events that led to the passage and ratification of the Fifteenth Amendment

and the forces that shaped the amendment itself.

INTRODUCTION

For more than 50 years, the Supreme Court has relied primarily on the

Fourteenth Amendment in providing constitutional protection for voting

rights. Beginning with the decisions in Reynolds v. Sims

and Harper v.

Virginia State Board of Elections,

the Court has consistently held that the

right to vote is fundamental for purposes of equal protection analysis and

that any state action that infringes upon that right is unconstitutional unless

the action is necessary to further a compelling governmental interest.

Thus, for example, in the recent decision in Alabama Legislative Black

Caucus v. Alabama,

the majority relied on the Equal Protection Clause in

concluding that strict scrutiny should be applied whenever a court finds

that race was the predominant factor in determining the boundaries of even

a single legislative district.

 I gratefully acknowledge the assistance of Travis Crum, who read an

earlier draft of this Article and provided a variety of useful suggestions.

. U.S. CONST. amend. XV, § 1.

. Id. § 2.

. Reynolds v. Sims, 377 U.S. 533 (1964).

. Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966).

. Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254 (2015).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 397

The framers of the Reconstruction Amendments would have found

this approach to be puzzling at best. The Republicans who were

responsible for drafting the Fourteenth Amendment made a conscious

decision to delete protection for voting rights from the text of the

amendment

and during the congressional debates explicitly stated that the

amendment would not impose any new limitations on state control of the

electoral process.

Instead, it was not until after the Fourteenth

Amendment was ratified that congressional Republicans united around the

Fifteenth Amendment, which they viewed as the source of constitutional

protection for voting rights.

This Article will describe the complicated dynamic that ultimately led

to the passage and ratification of the Fifteenth Amendment.

The Article

will begin by discussing the role that the issue of African-American

suffrage played in the debates over Reconstruction policy in 1866 and the

considerations that shaped the decision to remove explicit protections for

the right to vote from the Fourteenth Amendment. The Article will then

describe the conflict over the issue within the Republican party in the

period between 1866 and 1869, which culminated in the creation of a

consensus among Republicans regarding the need for either a federal

statute or a constitutional amendment that would require states to allow

African-Americans to vote. At the same time, however, Republicans

. See BENJAMIN KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF

FIFTEEN ON RECONSTRUCTION 101 (1914).

. CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866).

. WILLIAM GILLETTE, THE RIGHT TO VOTE: POLITICS AND THE PASSAGE OF

THE FIFTEENTH AMENDMENT (1969) is the only modern book-length treatment of

the evolution and ratification of the Fifteenth Amendment. However, Gillette

makes only passing reference to the discussions of the issue of African-American

suffrage that took place during the crafting of the Fourteenth Amendment and also

pays little attention to the debate over women’s suffrage during the late 1860s.

Other, less detailed discussions of the background of the Fifteenth Amendment

include MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL

REPUBLICANS AND RECONSTRUCTION, 1863-1869, at 325–38 (1974); ERIC

FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION

REMADE THE CONSTITUTION 93–125 (2019); ALEXANDER KEYSSAR, THE RIGHT

TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 75–

82 (2009); EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION AND CONGRESS,

1863-1869, at ch. 9 (1990); XI WANG, THE TRIAL OF DEMOCRACY: BLACK

SUFFRAGE AND NORTHERN REPUBLICANS, 1860-1910, at ch. 1 (1997) and Travis

Crum, The Superfluous Fourteenth Amendment, 114 NW. U.L. REV. 1549, 1592–

1617 (2020).

398 LOUISIANA LAW REVIEW [Vol. 82

continued to have widely differing views on the precise form that federal

action should take.

Delving deeply into the complex congressional debates that produced

the final draft of the Fifteenth Amendment, the Article will describe these

differences, focusing, among other things, on the unsuccessful efforts to

prohibit discrimination on the basis of sex as well as race, as well as the

equally unsuccessful attempt to ban only discrimination against African-

Americans, which would have left the states free to explicitly deny the

right to vote to Asian-Americans and other racial minorities on the basis

of race. After chronicling the brief but intense struggle over ratification,

the Article will conclude by describing the impact that the Fifteenth

Amendment has had on the electoral process in the United States.

I. THE DISPUTE OVER AFRICAN-AMERICAN SUFFRAGE IN THE EARLY

RECONSTRUCTION ERA

The passage of the Fifteenth Amendment was the culmination of one

of the major political struggles of the early Reconstruction era. By the end

of the Civil War, most mainstream Republicans had embraced the idea that

African-Americans should be allowed access to the right to vote under the

same conditions as their white counterparts. Republican support for the

basic concept of African-American suffrage was based in part on

ideological convictions that transcended purely sectional considerations.

Thus, for example, in 1864 a majority of congressional Republicans

supported an unsuccessful effort to enfranchise African-Americans in the

territory of Montana,

and in early January 1866, the Republican

dominated House of Representatives passed a bill extending the right to

vote to African-Americans in the District of Columbia.

However, the

primary impetus for broader federal action was created largely by the need

to deal with fundamental issues related to Reconstruction.

The issue of political power was at the core of the debate over

Reconstruction policy. In simple terms, Republicans believed that the ex-

Confederate states should not be restored to their former status as full

partners in the Union without some assurance that the governments of

those states would be in the hands of forces that were loyal to the federal

government.

The difficulty was that the vast majority of the white

population in the states that had seceded had been Confederate

. CONG. GLOBE, 38th Cong., 1st Sess. 1361, 1651 (1864).

. CONG. GLOBE, 39th Cong., 1st Sess. 310 (1866).

. See, e.g., CARL SCHURZ, REPORT ON THE CONDITION OF THE SOUTH (1865),

https://wwnorton.com/college/history/america9/brief/docs/Schurz_Carl_Report_

on_the_Condition_of_the_South_1865.pdf [https://perma.cc/6BV9-BXPG].

2022] THE COMING OF THE FIFTEENTH AMENDMENT 399

sympathizers, whom most Republicans believed could not be trusted with

control of the institutions of state and local government.

Republicans were also gravely concerned about the potential impact

of the restoration of the ex-Confederate states on the balance of power in

the federal government. Even before the war, Republicans had argued that

the policies adopted by the federal government had too often been

designed to protect the interests of Southern slaveowners. In particular,

Republicans had complained bitterly that the formula for determining

representation in the House of Representatives, which included three-

fifths of the number of slaves in each state in the basis of representation,

had given an unfair advantage to the South.

Ironically, the Thirteenth Amendment, which was the capstone of the

long struggle against the institution of slavery itself, also had the potential

to further enhance the political influence of what Republicans described

as the “slave power.”

Once freed from bondage, under the rules

established by the original Constitution, all former slaves would be

counted fully in determining the number of representatives to which the

states in which they lived were entitled in the House of Representatives.

But at the same time, unless the rules that had been in place in the ex-

Confederate states prior to the war were changed, only the white citizens

would have a voice in choosing the congressional delegations in those

states. Thus, the influence of these citizens—most of whom had been

Confederate sympathizers—would actually be greater than it had been

prior to the Civil War. Moreover, the vast majority of those who were

chosen to represent the ex-Confederate states under this regime would

have almost certainly aligned themselves with Northern Democrats,

making it far more difficult for Republicans to keep control of the House

of Representatives. For obvious reasons, this prospect was anathema to

most, if not all, mainstream Republicans.

Many Republicans believed that these problems could be ameliorated

by enfranchising the newly-freed slaves. In addition to supporting the

concept of race-blind suffrage as a matter of principle, these Republicans

reasoned that the ex-slaves would be likely to support Republican

candidates and would thus provide a political counterweight to

Confederate sympathizers in elections for both state office and the House

. See, e.g., Letter from John Quincy Adams to Uriah Tracy (1804), in

Digital History, UNIV. HOUS., http://www.digitalhistory.uh.edu/disp_textbook

.cfm?smtID=3&psid=215 [https://perma.cc/Q4HZ-NSXU] (last visited June 19,

2021).

. For a detailed discussion of the concept of the slave power, see LEONARD

RICHARDS, THE SLAVE POWER: THE FREE NORTH AND SOUTHERN DOMINATION,

1780-1860 (2000).

400 LOUISIANA LAW REVIEW [Vol. 82

of Representatives. Further, some Republicans argued that if African-

Americans were given the means to protect themselves through the state

political process, the need for additional federal action designed to provide

such protection might be obviated. Thus, for example, in December 1865,

one Republican newspaper predicted that even “‘conservative’

[Republicans] . . . will be willing that some general Constitutional

amendment shall be adopted, looking to an equalization of suffrage

everywhere, without regard to color.”

However, in 1866 some Republicans did not share the belief that

federal action designed to enfranchise African-Americans was either

appropriate or desirable. One problem was ideological. During the early

Reconstruction period, many moderate and conservative Republicans

remained committed to the concept of federalism and believed that any

measure that established national standards for voting would unduly

impinge on the prerogatives of individual state governments. For example,

on January 5, 1866, in his annual address to the state legislature, Samuel

Cony, the Republican Governor of Maine, observed that “the states of the

American Union are not under the surveillance of the general government

. . . except in a very limited degree, and the regulation of the right of

suffrage rests with [the states] exclusively.”

In addition, not all Republicans were convinced that, if granted the

right to vote, the newly-freed slaves would in fact effectively counter the

voting power of white Southerners. For example, arguing against the

imposition of a constitutional mandate for race-blind suffrage, the

conservative New York Times observed:

Everybody knows how easy it is for a wealthy and intelligent

class, though small in numbers, to hold in subjection a poor and

ignorant majority, even when the rights of the individual and his

equality before the law are loudly proclaimed and speciously

enforced. The whole history of Southern politics exhibits this.

Finally, moderate Republicans in particular also recognized that the

idea of making African-American suffrage a centerpiece of the party’s

reconstruction program carried substantial political risk. Although most

Republicans favored African-American suffrage, in a number of Northern

states crucial swing voters were adamantly opposed to the concept. As a

. Admission of Rebel States, BANGOR DAILY WHIG & COURIER (Me.), Dec.

11, 1865, at 2.

. The Governor’s Address, BANGOR DAILY WHIG & COURIER (Me.), Jan.

5, 1866, at 3.

. The Suffrage Question, N.Y. TIMES, Feb. 13, 1866, at 4.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 401

result, during the fall of 1865, supporters of African-American suffrage

suffered a number of important defeats in local elections in Northern

states.

The most significant setback came in Connecticut, the last New

England state to deny African-Americans the right to vote, where a

measure that would have removed the racial qualification was defeated in

a referendum conducted in October 1865.

Thus, it appeared that the

aggressive promotion of African-American suffrage had the potential to

undermine the political fortunes of the Republican party in jurisdictions

where the electorate was closely divided between Republicans and

Democrats. Against this background, one Republican senator worried

privately that “if I vote for a negro suffrage bill . . . the opposition journals

will open their guns on me, and if possible make me and my party

unpopular.”

The impact of these considerations was clearly reflected in

the treatment of the issue of African-American suffrage during the process

of the drafting of the Fourteenth Amendment.

A. African-American Suffrage and the Drafting of the Fourteenth

Amendment

The Fourteenth Amendment as we know it emerged only after a long

and complex drafting process. The ratification of the Thirteenth

Amendment in December 1865 had permanently abolished slavery.

Nonetheless, when the first session of the Thirty-Ninth Congress convened

in the same month, most congressional Republicans believed that

additional changes in the Constitution were necessary to adequately

address issues related to Reconstruction. Initially, however, they did not

envision the creation of the kind of multifaceted amendment that

ultimately became part of the Constitution. Instead, they focused their

attention on the creation of amendments that were more narrowly tailored

to deal with specific problems.

The Republican members of the Joint Committee on Reconstruction

quickly took the lead in drafting these amendments. Congress created this

. JOSEPH JAMES, THE DRAFTING OF THE FOURTEENTH AMENDMENT 16–17

(1956).

. Id. at 17.

. Notes from the Capitol, CONGREGATIONALIST, Jan. 12, 1866, at 6.

. The Joint Committee on Reconstruction was composed of twelve

Republicans—Sens. William Pitt Fessenden of Maine, James W. Grimes of Iowa

Ira Harris of New York, Jacob M. Howard of Michigan and George H. Williams

of Oregon and Reps. John A. Bingham of Oho, Henry T. Blow of Missouri,

George S. Boutwell of Massachusetts, Roscoe Conkling of New York, Justin S.

Morrill of Vermont, Thaddeus Stevens of Pennsylvania and Elihu B. Washburne

402 LOUISIANA LAW REVIEW [Vol. 82

committee in December 1865 with a mandate to “inquire into the condition

of the [ex-Confederate] [s]tates . . . and report whether they, or any of

them, are entitled to be represented in . . . Congress.”

Soon after they first

convened, committee members focused their attention on the problem of

determining the proper allocation of political power in a reconstructed

Union.

On January 15, 1866, the committee considered a proposal that would

have barred the states from making “any distinction . . . in political . . .

rights or privileges, on account of race, creed, or color.”

However, all of

the Republican members of the committee except Republican Sens.

William Pitt Fessenden of Maine and Jacob M. Howard of Michigan

rejected this proposal.

Instead, the committee Republicans, joined by

Democratic Sen. Reverdy Johnson of Maryland, coalesced around the idea

of a constitutional amendment that would not have interfered directly with

state control over voter qualifications, but instead would have reduced the

number of seats in the House of Representatives allocated to states that

prohibited African-Americans from voting.

When this proposed amendment reached the floor of the House of

Representatives, radical Republicans such as George W. Julian of Indiana,

Thomas D. Eliot of Massachusetts, and Frederick A. Pike of Maine

contended that the measure was fatally flawed because it would have

allowed states to continue the practice of restricting the right to vote to

white people.

They contended that the governments of states with large

populations of free African-Americans were constitutionally required to

enfranchise the erstwhile slaves by Article IV, section 4, which requires

states to maintain a “republican” form of government, and insisted that the

Constitution already vested Congress with authority to enforce this

mandate.

Republican Rep. William D. Kelley of Pennsylvania would

have found the same authority in the congressional power to regulate the

“time, place and manner” of elections to the House.

Some Republicans

who took this view also contended that the joint committee proposal might

in fact be counterproductive because it implicitly recognized the authority

of Illinois—and three Democrats—Sen. Reverdy Johnson of Maryland and Reps.

Henry Grider of Kentucky and Andrew J. Rogers of New Jersey.

. KENDRICK, supra note 6, at 38.

. Id. at 50.

. Id. at 51–52.

. Id. at 52.

. CONG. GLOBE, 39th Cong., 1st Sess. app. 56–58 (Julian), 406–07 (Eliot),

407 (Pike) (by implication) (1866).

. Id.

. Id. at 408–09.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 403

of the states to indirectly disenfranchise African-Americans through the

use of devices such as property and literacy qualifications for voting.

For

these reasons, they argued that Congress should propose a constitutional

amendment that would explicitly bar racial discrimination in suffrage

qualifications.

Republican Rep. Roscoe Conkling of New York, the floor manager of

the joint committee proposal, responded by recapitulating the arguments

against such a constitutional amendment. He contended that the radical

proposal

trenches upon the principle of existing local sovereignty. It denies

to the people of the several States the right to regulate their own

affairs in their own way. It takes away a right which has been

always supposed to inhere in the States and transfers it to the

General Government.

In addition, noting that most Northern states did not allow African-

Americans to vote and that “some of them have repeatedly and lately

pronounced against it,” Conkling observed that many state legislatures

would almost certainly refuse to ratify a constitutional amendment that

banned racial discrimination in voting rights.

Most of Conkling’s

Republican colleagues were convinced by these arguments, and, with only

minor modifications, the joint committee proposal passed the House with

the requisite two-thirds majority on January 31, 1866.

The obstacles to the passage of the committee measure proved to be

greater in the Senate. There, the Republicans who favored an amendment

that would have explicitly prohibited the states from limiting access to the

ballot on the basis of race quickly took a prominent role in the debates.

Republican Sen. Charles Sumner of Massachusetts, well-known for his

advocacy of extreme radical positions, took the lead in attacking the

proposal that had been passed by the House of Representatives. In a

lengthy speech that, depending on one’s perspective, might be described

as either erudite or pretentious, Sumner reviewed not only American

constitutional history but also French and classical precedents as well.

Insisting that the right to vote was a natural right,

Sumner argued that

. E.g., id. at 407, 426.

. E.g., id. at app. 57.

. Id. at 358.

. Id.

. Id. at 538.

. Id. at 673–87.

. Id. at 677.

404 LOUISIANA LAW REVIEW [Vol. 82

both the Guarantee Clause and Section 2 of the Thirteenth Amendment

had already vested Congress with the authority to ban such discrimination

by statute.

Despite these contentions, Sumner pressed for the adoption of

a constitutional amendment that would have provided “that there shall be

no Oligarchy, Aristocracy, Caste or Monopoly invested with peculiar

privileges and powers, and there shall be no denial of rights, civil or

political on account of color or race anywhere within the United States.”

Predictably, Sumner used the occasion to attack the white power

structure in the ex-Confederate states. But he was equally unsparing in his

assault on the proposal being considered by the Senate. Describing the

joint committee proposal as “nothing else than another Compromise of

Human Rights”

and declaring that “a moral principle cannot be

compromised,”

Sumner declared that the proposal reported by the joint

committee would “admit in the Constitution the twin idea of Inequality in

Rights”

and, comparing the supporters of the proposal to Pontius Pilate,

declared that they would be “partak[ing] in the wrong.”

Although they phrased their alternatives to the committee formulation

in simpler language and were less openly contemptuous than Sumner of

their more moderate colleagues, a number of other Republican senators

were equally committed to the passage of a constitutional amendment that

would directly outlaw racial discrimination in voting rights. Thus, for

example, Republican Sen. John B. Henderson of Missouri asserted:

Every consideration of peace demands it. It must be done to pluck

out political disease from the body-politic, and restore the

elementary principles of our Government; it must be done to

preserve peace in the States and harmony in our Federal system;

it must be done to assure the happiness and prosperity of the

Southern people themselves; it must be done to establish in our

institutions the principles of universal justice; it must be done to

secure the strongest possible guarantees against future wars.

Most Republicans, however, continued to support the measure that

had passed the House. Although William Pitt Fessenden had voted for a

. Id. at 683, 687.

. Id. at 674.

. Id. at 673.

. Id.

. Id. at 674.

. Id. at app. 125; see also id. at 736–42 (statement of Sen. Henry Lane),

831–35 (statement of Sen. Daniel Clark), 915 (statement of Sen. Jacob Howard),

app. 98–105 (statement of Sen. Richard Yates).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 405

proposal much like Henderson’s during the deliberations of the committee

itself, both he and fellow Republican committee member George H.

Williams of Oregon now suggested that the newly freed slaves were in fact

not yet ready to be trusted with the right to vote. Fessenden asserted:

I take it no one [including Sumner] contends . . . that now at this

time the whole mass of the population of the recent slave States is

fit to be admitted to the exercise of the right of suffrage. I presume

no man who looks at the question dispassionately and calmly

could contend that the great mass of those who were recently

slaves . . . and who have been kept in ignorance all their lives,

oppressed, more or less forbidden to acquire information, are fit

at this day to exercise the right of suffrage, or could be trusted to

do it, unless under such good advice as those better able might be

prepared to give them.

Similarly, Williams pleaded:

[G]ive these men a little time, give them a chance to learn that

they are free, give them a chance to acquire some knowledge of

their rights as freemen; give them a chance to learn that they are

independent and can act for themselves; give them a chance to

divest themselves of that feeling of entire dependence for

subsistence and the sustenance of their families upon the land

holders of the South to which they have been so long

accustomed . . . and I will go with [Sumner and Henderson] to

give them the right of suffrage.

However, the supporters of the joint committee formulation continued

to rely primarily on the argument that proposals to directly ban racial

discrimination in voting qualifications had no chance of being ratified.

Fessenden in particular made no effort to disguise his disdain for Sumner’s

insistence that Republicans maintain ideological purity at all costs,

declaring:

I do not think it my duty as a legislator in [the Senate] to trouble

myself much about what are called abstractions. My constituents

did not send me here to philosophize. They sent me here to act, to

find out, if I could, what is best for the good of the whole, and to

do it, and they are not so short-sighted as to resolve that if they

. Id. at 704.

. Id. at app. 95.

406 LOUISIANA LAW REVIEW [Vol. 82

cannot do what they would, therefore they will do nothing.

Fessenden also observed:

The argument that addressed itself to the committee was, what can

we accomplish? What can pass? If we report [an African-

American suffrage amendment] is there the slightest possibility

that it will be adopted by the States and become a part of the

Constitution of the United States? It is perfectly evident that there

could be no hope of that description.

Most Republicans agreed with this assessment of the political

situation. On a number of different occasions, the Senate voted on

language such as that which was proposed by Sumner and Henderson, but

none of these proposals received the votes of more than ten Republican

senators.

However, at this stage in the process, Fessenden and his allies

were also unsuccessful in obtaining the support necessary to pass a

constitutional amendment that would have changed the basis of

representation. While the measure proposed by the joint committee

received a slim majority in the Senate when the roll call vote was taken on

March 9, 1866, Sumner and four other radicals joined a group of

conservative Republicans and the united Democrats to deny supporters of

the measure the two-thirds majority necessary for passage.

However, the political situation changed dramatically on March 27,

when President Andrew Johnson vetoed the Civil Rights Act of 1866. The

terms in which the veto message was couched made it clear that Johnson

and the mainstream Republicans would never be able to come to an

agreement on the conditions under which the ex-Confederate states would

be allowed to regain their status as full partners in the Union.

Thus, it

became almost certain that the issue of reconstruction would dominate the

upcoming elections in the fall of 1866 and that Republicans would need a

coherent plan for reconstruction to present to the voters.

. Id. at 705.

. Id. at 704.

. Id. at 1284, 1287, 1288.

. Id. at 1289. The debates over the committee proposal are described in

detail in Earl M. Maltz, The Forgotten Provision of the Fourteenth Amendment:

Section 2 and the Evolution of American Democracy, 76 LA. L. REV. 149, 153–

68 (2015).

. BENEDICT, supra note 8, at 164; ERIC FONER, RECONSTRUCTION:

AMERICA’S UNFINISHED REVOLUTION, 1863-1877, at 250–52 (1988) [hereinafter

FONER, RECONSTRUCTION]; ERIC MCKITRICK, ANDREW JOHNSON AND

RECONSTRUCTION 326 (1960).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 407

Such a plan had been devised by Republican activist Robert Dale

Owen of Indiana. The Owen plan included both a five-part constitutional

amendment and a bill that would have provided that once the amendment

had become part of the Constitution, any of the ex-Confederate states that

ratified the amendment would be entitled to regain its status as a full

partner in the Union. Among other things, the Owen amendment would

have outlawed racial distinctions in qualifications for voters after July 4,

1876, and in the interim would have excluded those who were denied the

right to vote on racial grounds from the calculations used to determine

representation in the House of Representatives.

All of the provisions of the Owen plan were initially approved by the

joint committee over the unanimous opposition of committee Democrats

on April 21. The eight Republicans who were present for the initial

committee vote were almost united in support of these sections. Among

Republicans, the only dissenter was Rep. George S. Boutwell of

Massachusetts, who consistently supported immediate imposition of a

race-blind suffrage requirement.

However, as details of the Owen plan became publicly known, it

became clear that many mainstream Republicans continued to oppose the

idea of providing direct constitutional protection of the right of African-

Americans to vote. Thus, for example, the Cleveland Daily Herald

reported that many Republicans had concluded that “the attempt to force

negro suffrage upon the States by Congressional action must . . . be

abandoned.”

Similarly, the New York congressional delegation

produced a reconstruction plan that notably omitted any reference to a

requirement of race-blind suffrage but was similar to the Owen proposal

in all other relevant respects. A correspondent of the New York Times

observed, “The question of a negro-suffrage condition, either immediate

or remote, was received with very little favor.”

Faced with this reality, the joint committee did an about-face on the

suffrage issue. On April 25, Republican Sen. George H. Williams of

Oregon moved that the committee reconsider its decision to submit the

Owen amendment to the full House of Representatives and the Senate, and

the motion was passed over the dissents of Jacob Howard of Michigan and

. KENDRICK, supra note 6, at 83–84.

. Id. at 86.

. The Reconstruction Question, DAILY CLEVELAND HERALD, Apr. 27,

1866, at 2, https://go.gale.com/ps/i.do?p=NCNP&u=lln_alsu&id=GALE|GT300

5197827&v=2.1&it=r&sid=NCNP&asid=492d5b97 [https://perma.cc/ZD9M-

49VE].

. Action of the New-York Delegation on Reconstruction, N.Y. TIMES, Apr.

27, 1866, at 1.

408 LOUISIANA LAW REVIEW [Vol. 82

Republican Rep. Thaddeus Stevens of Pennsylvania.

Three days later,

only Howard and Republican Rep. Elihu B. Washburne of Illinois

demurred when Stevens moved to have the prohibition on racial

qualifications for voting removed from the proposed constitutional

amendment.

Instead, the only suffrage-related proposals in the five-part

amendment that was ultimately reported were section two, which provided

that, with certain exceptions, the number of representatives to which a state

was entitled in the House of Representatives would be reduced if the state

refused to extend the right to vote to some groups of adult males, and

section three, which disenfranchised those who had supported the

rebellion.

Despite the deletion of the explicit prohibition on racially

discriminatory qualifications for voters, opponents of the proposed

Fourteenth Amendment argued that section one of the proposal, which

prohibited states from “abridg[ing] the privileges or immunities of citizens

of the United States” or “deny[ing] to any person . . . the equal protection

of the laws,” would have the same effect as the deleted provision.

Republicans, however, denied this claim. Thus, speaking in the capacity

of official representative of the joint committee itself, Jacob Howard

insisted that “[t]he right of suffrage is not . . . one of the privileges or

immunities . . . secured by the Constitution” and thus that section one

“does not give . . . the right of voting [to anyone].”

Against this

background, the requisite majorities in both houses of Congress

passed

the five-part committee proposal and sent it to the states for ratification.

B. The Debate over African-American Suffrage, 1866-1868

The debate over the Fourteenth Amendment was the centerpiece of the

political campaign that led up to the election of 1866. During the

campaign, Republicans argued that the proposed amendment should

provide the basis for reconstruction, and generally indicated that any of

the ex-Confederate states that ratified the amendment would be entitled to

be reinstated to the Union. Based on this platform, Republicans won an

. KENDRICK, supra note 6, at 100.

. Id. at 101.

. Id. at 116.

. CONG. GLOBE, 39th Cong., 1st Sess. 2397, 2538 (1866).

. Id. at 2766.

. Id. at 3042, 3149.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 409

overwhelming victory in the election, gaining two-thirds majorities in both

houses of Congress.

Emboldened by this triumph, Republicans moved more aggressively

against racial discrimination in voting rights during the lame-duck session

of the 39th Congress that convened following the election. Both houses of

Congress quickly passed a bill enfranchising African-Americans in the

District of Columbia,

and on January 8, 1868, overrode President

Andrew Johnson’s veto of the measure.

In addition, the Senate agreed to

a measure previously passed by the House of Representatives that

enfranchised African-Americans in the territories controlled by the federal

government,

and both houses passed a bill that required the Nebraska

legislature to accept a prohibition on racial discrimination in voting rights

as a “fundamental condition” of having statehood granted to the territory.

However, once again it was the need to deal with the problem of

reconstruction that prompted the most significant action on the suffrage

issue. By 1867, the hopes of those Republicans who believed that the

Fourteenth Amendment alone could provide the basis for a final settlement

of the issue of reconstruction had been dashed by subsequent events.

Despite the defeat of the supporters of Andrew Johnson in the election of

1866, with the exception of Tennessee, the governments of the ex-

Confederate states had refused to ratify the amendment. As a result, even

the most moderate mainstream Republicans had no choice but to concede

the necessity of adopting additional reconstruction measures in the lame-

duck session of the 39th Congress that convened in early 1867.

The

Military Reconstruction Act that emerged from that session required,

among other things, that as a prerequisite for resumption of full status in

the Union, the constitutions of the unreconstructed states be rewritten to

enshrine the principle of universal manhood suffrage in state law.

The decision to force color-blind suffrage on the South by federal

action created both a philosophical and a political dilemma for many

Republicans. Despite the ambiguous position of the former members of

. See, e.g., BENEDICT, supra note 8, at 188–209; FONER, RECONSTRUCTION,

supra note 48, at 264–71.

. CONG. GLOBE, 39th Cong., 2d Sess. 109, 138 (1867).

. Id. at 313–14, 344.

. Id. at 382–99.

. Id. at 481–87.

. BENEDICT, supra note 8, at 212.

. For descriptions of the complex dynamic that ultimately produced the

Military Reconstruction Act, see, for example, BENEDICT, supra note 8, at 210–

43; FONER, RECONSTRUCTION, supra note 48, at 271–91; and MCKITRICK, supra

note 48, at 473–85.

410 LOUISIANA LAW REVIEW [Vol. 82

the Confederacy, most Americans were accustomed to viewing those

states as members of the Union. Indeed, the claim that the ex-Confederate

states had never lost this status had been the foundation of the political

theory upon which the Union effort in the Civil War had been based. Thus,

the passage of the Military Reconstruction Act left Republicans open to

the charge that they were asserting an authority that might be used to

control the electoral process even in states that had never purported to

secede.

Initially, some Republicans believed that the emergence of a national

consensus on the issue of African-American suffrage might resolve the

problem. Their hopes were fed by a suggestion by the Chicago Times—a

Democratic organ—that the opposition party should accept and embrace

the inevitability of impartial suffrage.

It soon became clear, however,

that most Democrats did not share the sentiments expressed by the Times

and that failure to effectively address the seeming inconsistencies in the

Republican position on African-American suffrage could have adverse

political consequences.

These problems were particularly acute for Republicans in the ex-

Confederate states—a region in which the party hoped to develop and

maintain substantial political power. White Southern Democrats could

claim that their region was being singled out for unduly oppressive federal

action and could also contend that the absence of African-American

suffrage requirements in the North demonstrated that Republicans were

not in fact actually concerned about the welfare of the freedmen but were

instead simply using the former slaves as pawns to further Republican

political goals. Both of these claims provided effective ammunition for

assaults on Republican organizing efforts in the South.

Republicans made a variety of familiar arguments in an effort to blunt

the force of these attacks. First, they emphasized the fact that, in

constitutional terms, the position of the ex-Confederate states could still

be conceptualized as different from that of their Northern counterparts.

From this perspective, federal power to regulate suffrage in the South

might conceivably be justified by reference to the war power—a rationale

that would not be available with respect to federal action requiring the

Northern states to allow African-Americans to vote.

In addition,

Republicans constantly stressed the need to create a class of African-

American voters that would provide a counterweight to the political power

. MCKITRICK, supra note 48, at 463.

. CONG. GLOBE, 39th Cong., 2d Sess. 1372 (1867) (statement of Sen. John

Henderson); Equal Suffrage, HARPER’S WKLY., Apr. 27, 1867, at 258.

. See, e.g., CONG. GLOBE, 39th Cong., 2d Sess. 1365 (1867) (statement of

Sen. Jacob Howard).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 411

of rebellious whites, a need that obviously did not exist in the states that

had adhered to the Union cause.

Finally, Republicans argued that the

social and legal climate in the erstwhile slave states placed African-

Americans at particular risk, and that granting the freedmen the ballot was

the best and least intrusive means of protecting them from the predations

of their former masters.

In addition to relying upon the special circumstances that they claimed

justified federal action on African-American suffrage in the South,

Republicans also responded more directly to the charge of hypocrisy by

redoubling their efforts to have African-Americans enfranchised in the

North through the process of state constitutional reform, and in 1867,

Republican-controlled state legislatures succeeded in having the issue

placed on the ballot for fall elections in Kansas, Minnesota, and Ohio.

However, reform on a state-by-state basis was by its nature a gradual,

drawn-out process and in any event could not resolve the federal

constitutional issues that were raised by the suffrage provision of the

Reconstruction Act. Thus, for many Republicans, the idea of taking federal

action that would require states to allow African-Americans to vote

throughout the nation became increasingly attractive.

Radical Republicans continued to press for a statute that would outlaw

racial discrimination in suffrage throughout the nation. With the

Fourteenth Amendment not yet ratified, radicals reiterated their contention

that Congress could derive the requisite authority to pass such a statute

from either the Guarantee Clause or the enforcement provision of the

Thirteenth Amendment. The most persistent and vociferous supporters of

this view were Sens. Charles Sumner and Henry Wilson, both of whom

sponsored national impartial suffrage bills that were introduced during the

first session of the 40th Congress.

However, many mainstream Republicans did not share the broad

conception of federal power that underlaid the Sumner and Wilson

proposals. The counterargument of Republican Sen. Lyman Trumbull of

Illinois was among those that received the widest circulation. While noting

his support for the basic principle of impartial suffrage and state

constitutional amendments embodying this principle, Trumbull averred

that “even to do a right thing in a wrong way is often fraught with greater

danger than to leave the thing undone, and is never justifiable when there

is a right way by which it may be accomplished.”

He warned against

. See, e.g., Kentucky Politics, CINCINNATI COM., Apr. 27, 1867, at 2.

. The Last Veto, N. AM. & U.S. GAZETTE (Phila.), Mar. 25, 1867, at 2.

. CONG. GLOBE, 40th Cong., 1st Sess. 292, 345 (1867).

. THE SUFFRAGE QUESTION: Can Congress Regulate Suffrage in the

States—Views of Hon. Lyman Trumbull, N.Y. TIMES, Sept. 2, 1867, at 2.

412 LOUISIANA LAW REVIEW [Vol. 82

constitutional theories that granted Congress unlimited discretion,

asserting that “to allow [Congress] to exercise powers not granted would

be to make [the legislators] the masters instead of the servants of the

people, and such a representative Government would be little better than

a despotism.”

Turning specifically to the Guarantee Clause, Trumbull

declared that permitting Congress to control voter qualifications in the

loyal states would be “a sacrifice of the obvious meaning and spirit of [the

Constitution]”

and that the adoption of a statute requiring states to allow

African-Americans to vote “would be the subversion instead of the

guarantee of republican forms of government, and would necessarily

abrogate all existing State Governments.”

Against this background, the key test of support for a suffrage bill

during the first session of the 40th Congress came on July 12, 1867. On

that date, in apparent contravention of a previous resolution limiting the

business of the session to matters related to Reconstruction, Sumner

attempted to bring his suffrage bill to the Senate floor for consideration.

However, on the question of whether his motion was in order, Sumner was

able to garner the support of only twelve of his Republican colleagues, as

fifteen Republicans joined seven Democrats in opposition.

The refusal of conservative and moderate Republicans to countenance

federal suffrage legislation should not be taken as evidence that they

opposed a national guarantee of impartial suffrage in principle. Indeed, by

mid-1867, a consensus favoring such a guarantee seems to have emerged

among mainstream Republican leaders of all stripes. The crucial

difference was that, unlike more radical Republicans who generally

believed that the guarantee could be provided by statute, their more

conservative and moderate compatriots believed that a constitutional

amendment was necessary. While the supporters of this approach

understood that such an amendment would constitute an unprecedented

federal intervention into the affairs of state government, the nature of that

encroachment would be limited by its terms and would not imply that the

scope of federal power should be interpreted broadly in other contexts.

Thus, African-Americans could be provided with access to the ballot while

leaving the traditional distribution of power between the state and federal

governments otherwise undisturbed.

With these considerations no doubt in mind, even before the passage

of the Reconstruction Act of 1867, important moderate journals such as

. Id.

. CONG. GLOBE, 40th Cong., 1st Sess. 615 (1867).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 413

the Springfield Republican and the Chicago Tribune expressed the view

that the adoption of a suffrage amendment would provide a simple, final

solution to the problem of reconstruction more generally.

The

subsequent imposition of universal suffrage on the ex-Confederate states

provided further impetus to the movement for such an amendment. For

example, the Republican asserted that for the northern states to demand

universal suffrage as a precondition for readmission while not recognizing

the right of African-Americans to vote in their own states was

“contemptible.”

Similarly, in the same editorial in which it attacked the

attempt to pass a national suffrage bill, the New York Times declared that

it was necessary to “strengthen [the principle of impartial suffrage] with

constitutional forms so that no single State shall have the power to disturb

it.”

Seeking to give these sentiments more concrete form, on March 7,

1867, John Henderson reintroduced his proposal for a constitutional

amendment prohibiting racial discrimination in voting rights.

Perhaps

because Congress was preoccupied with the adoption of more general

reconstruction measures, no real effort was made to press for the adoption

of the Henderson amendment during the short sessions of March and July

1867. Initially, the prospects for passage of the amendment during the long

session scheduled to begin in early 1868 seemed to be brighter. However,

in the interim, the elections of 1867 intervened and dramatically changed

the political dynamic.

These elections did not involve the selection of national officials.

Rather, voters were being called upon to choose the officers who would

serve at the state and local levels. Nonetheless, the elections were also in

part seen as a referendum on issues of national policy. African-American

suffrage was one such issue. While voters were being asked to approve

measures that would have allowed African-Americans to vote in several

different states, the state of Ohio was generally considered to be the most

important barometer of sentiment on this issue. For example, the

Cincinnati Commercial averred that, in that state, “if the [impartial

suffrage] amendment does not prevail, the Republican party will be

. No More Floundering, SPRINGFIELD REPUBLICAN, Jan. 1, 1867, at 2;

Universal Suffrage, CHICAGO TRIB., Feb. 17, 1867, at 2.

. How the South Should Look at it, SPRINGFIELD REPUBLICAN, Mar. 13,

1867, at 4.

. Universal Suffrage—Congress and the States, N.Y. TIMES, July 5, 1867,

at 4.

. CONG. GLOBE, 40th Cong., 1st Sess. 13 (1867).

414 LOUISIANA LAW REVIEW [Vol. 82

substantially defeated” even if party members were able to claim all other

state offices.

When the votes were tallied, it became clear that Republicans had

suffered a stunning defeat. The suffrage amendment in Ohio not only

received less than 46 percent of the votes that were cast, but also proved

to be a formidable drag on Republican candidates, as the party lost control

of the state legislature and barely retained the governorship. The news for

Republicans was no better elsewhere, as the efforts to give African-

Americans access to the ballot box were also defeated in both Kansas and

Minnesota, and the party lost ground in virtually every state in which

elections were contested, including California, New York, and

Pennsylvania.

The potential implications of this debacle went well beyond the

diminution of Republican power in the states that had held local elections

in 1867. The national elections of 1868 were fast approaching, and

Republicans were well-aware that African-American suffrage might be a

key issue in that election. Against this background, the responses of the

different elements of the party to their defeat in 1867 varied widely.

Radical Republicans blamed the defeat on the moderate wing of the

party and continued to argue that Congress should immediately act on

impartial suffrage legislation.

Yet despite their defiant rhetoric, radicals

were clearly disheartened by the results of the 1867 elections. Thus, even

the normally indefatigable Charles Sumner was forced to recognize that

“times haven’t been propitious” for African-American suffrage

legislation.

Nonetheless, in March 1868, Republican Rep. John H. Broomall of

Pennsylvania brought just such a bill to the floor of the House of

Representatives for debate.

In expressing his opposition, Republican

Rep. Rufus P. Spalding of Ohio not only condemned the measure as

unconstitutional but also declared that passage of such a bill would be “the

death-knell of our hopes . . . in the approaching presidential canvass.”

Similarly, the Republican predicted that the enactment of a national

suffrage law would “give [almost] every state in the Union to the

. The Constitutional Amendment, CINCINNATI COM., Sept. 18, 1867, at 4.

To the same effect, see Suffrage for Women, NAT’L ANTI-SLAVERY STANDARD,

Oct. 5, 1867, at 3.

. BENEDICT, supra note 8, at 272.

. See, e.g., The Thirty-Fourth National Anti-Slavery Subscription Anniversary,

NAT’L ANTI-SLAVERY STANDARD, Jan. 18, 1868, at 2.

. Washington Letter, CINCINNATI COM., Jan. 1, 1868, at 2.

. CONG. GLOBE, 40th Cong., 2d Sess. 1955 (1867).

. Id. at 1971.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 415

Democrats.”

With sentiment so strongly against it, the Broomall bill

never even came to a vote, and by March 19 it was reported that no

Republican had “the slightest idea” that any such measure would be voted

on, let alone adopted, during that session of Congress.

The defeat in Ohio also severely weakened the moderate/conservative

drive for a constitutional amendment dealing with suffrage. Some

moderate Republicans remained committed to the passage of such an

amendment. For example, The Republican argued that “the Republican

party must stand for equal suffrage, or confess that it has no basis at all on

which it can stand”

and contended that, given the course that the process

of reconstruction had already taken, “[t]here is really only one thing to be

done now, and that is to propose the establishment of equal suffrage in the

Constitution.”

However, the Commercial disagreed, asserting that the

election of 1867 had settled the point and that Republicans should not

press the suffrage issue in the upcoming campaign.

It was reported that

some mainstream Republicans were even willing to abandon the

requirement that the ex-Confederate states guarantee impartial suffrage as

a condition for readmission.

Given these circumstances, the local elections that were held in the

spring of 1868 took on special significance. In March, a smashing

Republican success in New Hampshire gave the pro-suffrage element of

the party a major boost. However, the hopes of this group of Republicans

were dashed by the results of the April election in Connecticut, which were

inconclusive, and by those in Michigan, where the inclusion of an African-

American suffrage provision led to the rejection of a proposed new state

constitution. As the New York Times noted, the results of these elections

demonstrated that the Republican party “has no strength to throw away,

and that it has good reason for behaving itself just as well as it can.”

The

Commercial concurred, reiterating its position that “the Party cannot risk

success this fall by a conspicuous recognition of the doctrine . . . of negro

suffrage in the North.”

Even the Republican was forced to retreat,

conceding bitterly that the Connecticut and Michigan results

. Untitled, SPRINGFIELD REPUBLICAN, Oct. 15, 1867, at 2.

. From Washington, SPRINGFIELD REPUBLICAN, Mar. 19, 1868, at 2.

. Untitled, SPRINGFIELD REPUBLICAN, Oct. 14, 1867, at 2.

. Party Issues for 1868, SPRINGFIELD REPUBLICAN, Jan. 3, 1868, at 2.

. The Democratic Platform of the Eighth of January, CINCINNATI COM.,

Jan. 10, 1868, at 4.

. Untitled, SPRINGFIELD REPUBLICAN, Oct. 12, 1867, at 4.

. The Spring Elections, N.Y. TIMES, Apr. 13, 1868, at 4.

. The Republican National Convention, CINCINNATI COM., May 14, 1868,

at 4.

416 LOUISIANA LAW REVIEW [Vol. 82

[i]ndicate beyond a doubt that the rank and file of the republican

party . . . are yet so far from being unanimous in favor of black

suffrage, that the more immediate interests of reconstruction

might be jeopardized by forcing the issue at this juncture, and it is

therefore certain that the party leaders and party press will only be

too ready to ignore or postpone it.

The Republicans who wished to downplay the issue of African-

American suffrage dominated proceedings when the party convention

assembled to choose a presidential candidate in Chicago on May 19 and

20. By the time that the convention opened, the presidential ambitions of

Benjamin Wade and Chief Justice Salmon P. Chase—both of whom were

prominently associated with the radical pro-suffrage position—had

evaporated. Instead, the nomination of Ulysses S. Grant, the favorite of the

conservative and moderate wings of the party, was a foregone

conclusion.

Wade was also shunted aside for the vice presidency in favor

of Schulyer Colfax of Indiana, the less ideologically committed Speaker

of the House.

Finally, although radicals continued to demand that the

party irrevocably bind itself to the pursuit of impartial suffrage,

the

convention deliberately evaded that key issue. While supporting the power

of Congress to require universal suffrage in the ex-Confederate states, the

party platform also declared that “the question of suffrage in all the loyal

States properly belongs to the people of those States.”

Although the adoption of this provision of the platform infuriated

many radicals, in fact the action of the convention had aptly captured the

mood of a majority of Republicans. For example, although expressing

regret that the party could not bring the country to accept the concept of

impartial suffrage, the Republican nonetheless concluded that “since it has

been distinctly proved that it cannot, there is no reason why it should go

so far ahead as to lose the nation in a vain effort to achieve an impossible

good.”

100

Thus, while leaving the way open for individual Republican

candidates to express support for the idea of taking federal action to

. Untitled, SPRINGFIELD REPUBLICAN, Apr. 9, 1868, at 2.

. MARTIN MANTELL, JOHNSON, GRANT AND THE POLITICS OF

RECONSTRUCTION 69–70 (1973).

. Id. at 98–99.

. The Republican Party—Suffrage, NAT’L ANTI-SLAVERY STANDARD,

May 9, 1868, at 2.

. 1 DONALD JOHNSON, NATIONAL PARTY PLATFORMS 38 (1978).

100

. Our Platform, SPRINGFIELD REPUBLICAN, May 23, 1868, at 4; see also

The Political Situation, CINCINNATI COM., May 23, 1868, at 4; The Platform and

the Nominations, NATION, May 28, 1868, at 425.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 417

enfranchise African-Americans, the platform sought to dispel the notion

that the party as an institution was committed to the idea that such action

was necessary.

However, this effort was hampered by a number of different factors.

First, the platform plank could not erase the memory of the forceful

position on the issue that the party’s candidates had taken only a year

before. In addition, the platform language failed to deal effectively with

the tension between the party’s refusal to endorse a nationwide suffrage

measure and its insistence that the ex-Confederate states enfranchise their

African-American populations as a precondition to readmission. This

tension was only exacerbated in the period between the convention and the

election when, over the objection of some moderate representatives and

senators, provisions requiring the maintenance of universal suffrage were

included as “fundamental conditions” in the bills that restored seven

different southern states to full participation in the Union.

101

The debate over fundamental conditions highlighted the constitutional

issues involved in federal regulation of access to the ballot. In addition,

the debate provided the Democrats with a new weapon that they could use

in the presidential campaign. After an extremely contentious convention

and a dalliance with the idea of selecting Chase as their candidate on a

platform that endorsed impartial suffrage, the Democrats ultimately chose

Horatio Seymour of New York to be their standard bearer and Francis A.

Blair, Jr. of Missouri to be his running mate. Although the party platform

did not explicitly take the position that African-Americans should not be

allowed to vote, the platform did declare that “any attempt by congress, on

any pretext whatever, to deprive any State of [the right to regulate access

to the ballot], or interfere with its exercise, is a flagrant usurpation of

power, which can find no warrant in the Constitution.”

102

During the presidential campaign that followed, Republicans

generally tried to avoid the suffrage issue altogether. By contrast,

Democrats focused on the issue from a variety of different perspectives.

Reminding voters of the positions that the Republican party had taken in

the 1867 elections, Democrats sought to portray the Republicans as the

champion of voting rights for African-Americans

103

and described the

Republican platform plank on this issue as a “cowardly . . . evasive

101

. The debate surrounding the imposition of fundamental conditions is

described in BENEDICT, supra note 8, at 315–22.

102

. Democratic Party Platform of 1868, in JOHNSON, supra note 99, at 38.

103

. Speech of Daniel Voorhees, CINCINNATI COM., June 13, 1868, at 1;

Speech of John Reid, CINCINNATI COM., June 20, 1868, at 2; Speech of Allan

Thurman, CINCINNATI COM., July 20, 1868, at 2–3.

418 LOUISIANA LAW REVIEW [Vol. 82

dodge”

104

which covered the true Republican position with “the thin veil

of expediency.”

105

Building on the same theme, the Philadelphia Age urged voters to

dismiss the disclaimers in the platform for two reasons. First, the Age

reminded voters that during the 1866 campaign Republicans had promised

not to impose African-American suffrage on the Southern states and had

promptly broken that promise immediately after returning to office.

106

Second, the Age asserted that the imposition of fundamental conditions on

the readmitted states demonstrated that the platform plank was a

“humbug.”

107

Taking the same idea further, Democrats suggested that the

plank showed a more general Republican propensity for political

hypocrisy and cowardice.

108

But despite Democratic efforts to exploit the suffrage question and

other issues, Grant’s personal popularity and the Republican pledge to

bring a speedy end to reconstruction proved too much for the Democrats

to overcome in the election of 1868. Republicans swept to victory in the

presidential election, and despite losing twenty seats in the House of

Representatives, also maintained a substantial majority in both houses of

Congress. This victory provided the backdrop for a renewed struggle over

African-American suffrage in the lame-duck session of the 40th Congress

that convened in early 1869.

II. THE DRAFTING OF THE FIFTEENTH AMENDMENT

A. The Aftermath of the Election

Within weeks of the election, representatives of a variety of different

viewpoints within the Republican party renewed the call for a

constitutional amendment that would finally settle the suffrage issue.

109

Several factors influenced the reinvigoration of the drive for such an

amendment. First, the election itself had reduced the political problems

attendant to the aggressive pursuit of African-American suffrage. No

matter what the public reaction, the presidency would be in Republican

104

. Speech of Michael Kerr, CINCINNATI COM., June 13, 1868, at 1.

105

. Speech of A. K. Bradley, CINCINNATI COM., July 22, 1868, at 2.

106

. Not Twice, PHILA. AGE, May 23, 1868, at 2.

107

. Arkansas, PHILA. AGE, June 3, 1868, at 2.

108

. Speech of George Pendleton, PHILA. AGE, Aug. 1, 1868, at 2.

109

. Some Considerations Why Impartial Suffrage Should be Made Universal,

CINCINNATI COM., Nov. 9, 1868, at 4; Amending the Constitution, HARPER’S

WKLY., Nov. 28, 1868, at 754; Our Washington Correspondence, NAT’L ANTI-

SLAVERY STD., Nov. 14, 1868, at 3.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 419

hands for four years and both the House of Representatives and the Senate

would be safely Republican for at least two years. Of course, advocacy of

race-blind suffrage could still hurt the party in state and local elections,

but that problem would always remain. Thus, the political dangers

surrounding the issue were at their nadir in early 1869.

In addition, despite their victory, the election of 1868 had engendered

within Republican ranks a sense that the lame-duck session of the 40th

Congress might be the last opportunity to pass a suffrage amendment.

During that session, mainstream elements of the party would have a clear

two-thirds majority in both houses of Congress. Indeed, Republican

strength had been enhanced with the arrival of senators and representatives

from a number of newly readmitted Southern states. At the same time,

although the situation was not entirely clear, some Republicans feared that

the necessary two-thirds majority might be lacking in the House of

Representatives in the 41st Congress that was to convene in March

1869.

110

Others expressed the concern that the party might soon lose

control of some state legislatures whose concurrence would be necessary

for ratification of any proposal for a constitutional amendment that might

emerge from Congress.

111

In short, the elections of 1868 provided the Republican party with its

best opportunity to resolve the tension that had been inherent in its position

on the issue of African-American suffrage since early 1867. On one hand,

Republicans insisted that the ex-Confederate states allow the newly freed

slaves to vote as a precondition for readmission to the Union. But on the

other hand, despite being in firm control of Congress, Republicans had

failed to adopt any measure that would impose a similar mandate on the

states that had adhered to the Union.

There can be little doubt that Republicans felt this apparent dissonance

acutely. As already noted, the situation made Southern Republicans

particularly uncomfortable. For example, Republican Sen. Frederick A.

Sawyer from the recently reconstructed state of Tennessee complained that

“[we] have for two years been subject to the charge . . . that the Republican

party of the northern States put the negro on one platform in the loyal

States and upon another platform in the lately disloyal States.”

112

But the

sources of Republican dissatisfaction went beyond simple sectional

discontent. For example, Rep. James G. Blaine later recalled that

110

. CONG. GLOBE, 40th Cong., 3d Sess. 1629 (1869); Now Is the Time, NAT’L

ANTI-SLAVERY STANDARD, Nov. 28, 1868, at 1.

111

. Now Is the Time, supra note 109, at 1; The Constitutional Amendment, N.

AM. & U.S. GAZETTE (Phila.), Feb. 6, 1869, at 2.

112

. CONG. GLOBE, 40th Cong., 3d Sess. 1628 (1868).

420 LOUISIANA LAW REVIEW [Vol. 82

Republicans believed that it was “obviously unfair and unmanly”

113

impose impartial suffrage on the South without requiring similar action

from the North and that most party members “became heartily ashamed of

[the platform position on the suffrage issue] long before the political

canvas had closed.”

114

Thus, Blaine observed that there was a “desire and

a common purpose among Republicans to correct the unfortunate position

in which the party had been placed by the National Convention” and take

action on a suffrage measure that would have nationwide applicability.

115

Similarly, during the debate over the Fifteenth Amendment, Republican

Sen. James W. Nye observed that “[although] [a]ll of my education and

my sympathies are with [the Northern] States . . . they are not strong

enough to make me desire any rule of conduct or any privilege for them

that is not granted to the southern states” and that “[m]y desire in the

passage of the [constitutional amendment is] to secure uniformity, to stop

this bickering about one law for one locality and another law for

another.”

116

Other considerations also influenced the near-unanimous belief

among congressional Republicans that such a measure should be adopted

in 1869. Examining the words and deeds of mainstream Republicans in

the period from 1866 through 1868, one cannot help but conclude that

most party members agreed with the sentiments expressed by Republican

Sen. Edmund G. Ross of Kansas, who declared in 1869 that “[t]he first

great and sufficient reason why the negro should be admitted to the right

of suffrage in all the States is that it is right.”

117

Admittedly, during this

period many party leaders had at times felt compelled to mute their support

for impartial suffrage for reasons of political expediency. But when

political conditions permitted, Republican advocacy of color-blind voting

had been consistent and forceful. Indeed, Republicans had sometimes

supported the cause of African-American suffrage even when that support

carried with it substantial political dangers.

118

By proceeding through the medium of a federal constitutional

amendment, Republicans could avoid the problems that in a number of

113

. JAMES BLAINE, TWENTY YEARS OF CONGRESS: FROM LINCOLN TO

GARFIELD WITH A REVIEW OF THE EVENTS WHICH LED TO THE POLITICAL

REVOLUTION OF 1860, at 412 (1884).

114

. Id.

115

. Id.

116

. CONG. GLOBE, 40th Cong., 3d Sess. 1306 (1869).

117

. Id. at 983.

118

. LaWanda Cox and John Cox, Negro Suffrage and Republican Politics:

The Problem of Motivation in Reconstruction Historiography, 33 J.S. HIST. 303

(1967).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 421

cases had thwarted their efforts to enfranchise African-Americans on a

state-by-state basis. While the individual states would still have to ratify

any amendment, the ratification process would not require that

Republicans triumph in the kind of popular referenda that had often

rejected state constitutional amendments designed to provide African-

Americans with access to the ballot. Instead, a proposed federal

amendment would need to attract only the support of state legislatures—

bodies in which Republicans had great success in gaining majority support

for race-blind suffrage.

But states that had not yet enfranchised African-Americans in 1869

were not the only Republican concern. Many Republicans also doubted

the security of the political rights of the former slaves in the ex-

Confederate states, notwithstanding the mandate that those states provide

for African-American suffrage in their state constitutions. Thus, for

example, even before the elections of 1868, The Nation had presciently

expressed the fear that after the southern states were restored to their pre-

Civil War status, whites would seize control of the state governments and

disenfranchise African-Americans.

119

While the imposition of

fundamental conditions was designed to obviate this danger, many

Republicans had doubts regarding the enforceability of these conditions.

The events of late 1868 had done little to ease Republican concerns on

this score. In Louisiana, attempts by African-Americans to vote for

Republican candidates had been met with violence and intimidation, while

in Georgia, the state legislature had refused to seat duly elected African-

Americans. Incidents such as these fueled the apprehensions of

Republicans who saw the need for a continuing federal commitment to

protect the voting rights of the freedmen.

120

In addition, some Republicans saw the potential for long-term political

gains in the loyal states from a federal requirement that African-Americans

be granted the right to vote. Their calculations on this issue were obviously

complicated, for the elections of 1867 had clearly demonstrated the

unpopularity of the concept of African-American suffrage with a critical

portion of the electorate. Thus, for example, the Philadelphia North

American observed that vigorous advocacy of such an amendment would

bring with it the loss of some white votes.

121

119

. The Platform and the Nomination, NATION, May 28, 1868, at 425.

120

. The Platform and the Nomination, NATION, Jan. 28, 1869, at 124; A

Constitutional Amendment, NAT’L ANTI-SLAVERY STANDARD, Oct. 17, 1868, at

1; Georgia and Its Colored Legislators, N.Y. TIMES, Nov. 16, 1868, at 4.

121

. Passage of the Suffrage Amendment, N. AM. & U.S. GAZETTE (Phila.),

Feb. 1, 1869, at 2.

422 LOUISIANA LAW REVIEW [Vol. 82

But throughout the two-year debate over the question, other pro-

suffrage Republicans contended that newly enfranchised African-

Americans would vote for party candidates in sufficient numbers to offset

any loss of white support. In the loyal former slave states of Kentucky,

Delaware, and Maryland, votes from large numbers of freedmen were

regarded as the best hope for overcoming the power of the state

Democratic parties. Although in the free states the number of potential

new votes was much smaller, Republicans also needed far fewer additional

votes to gain firm control of those state governments. Thus, some argued

that a constitutional amendment mandating race-blind suffrage would

have a salutary effect on Republican fortunes in those states as well.

122

Finally, by dealing conclusively with African-American suffrage,

Republicans hoped to remove two volatile issues from the national

political debate. The first of these was the issue of race itself. Ever since

the formation of the Republican party, Democrats had attempted to use

that issue to appeal to a racist white populace. Republicans hoped that by

irrevocably granting African-Americans the right to vote, they could

finally put the issue of race behind them. Thus, for example, Republican

Sen. Oliver H. P. T. Morton of Indiana declared:

The Democratic party for more than twenty years has lived upon

the negro question. It has been its daily food, and if the negro

question shall now be withdrawn from politics the Democracy, as

a party, will literally starve to death. [The adoption of an African-

American suffrage amendment] will forever withdraw the subject

from politics, and will strike down that prejudice to which the

Democratic party has appealed for years.

123

Republicans also viewed the adoption of a constitutional amendment

granting African-Americans the right to vote as a means to put the issue

of reconstruction behind them. The Republican slogan in 1868 had been

“let us have peace,”

124

and Republican Sen. William M. Stewart of Nevada

asserted, “Let [impartial suffrage] be made the immutable law of the land;

let it be fixed; and then we shall have peace. Until then there is no

peace.”

125

Stewart later observed that in 1869 many Republicans believed

that an irrevocable federal guarantee of enfranchisement would “save [the

ex-slaves] from peon laws and [allow them to] obtain powerful friends

122

. GILLETTE, supra note 8, argues that this perception provided the primary

impetus for Republican advocacy of an African-American suffrage amendment.

123

. CONG. GLOBE, 40th Cong., 3d Sess. 991 (1869).

124

. Let Us Have Peace, N.Y. TIMES, Aug. 23, 1868, at 4.

125

. CONG. GLOBE, 40th Cong., 3d Sess. 668 (1869).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 423

who would prevent [their] reenslavement” and thereby avoid the need for

a permanent federal presence to protect the freedmen in the ex-

Confederate states.

126

Similarly, Republican Rep. George Boutwell of

Massachusetts predicted that a constitutional amendment guaranteeing

African-Americans the right to vote would be “the last . . . of [the] great

measures growing out of the rebellion, and necessary for the

reorganization and pacification of the country.”

127

In short, by the time that the lame-duck session of the 40th Congress

convened on December 7, 1868, virtually all mainstream Republicans

believed that the federal government should take some action that would

require the states to allow African-Americans to vote. However, they did

not agree on the precise form that the action should take.

B. The Congressional Debate

Initially, the proposed constitutional amendments that were reported

to the floors of the House and the Senate by their respective judiciary

committees were very similar. In both cases, the language of the proposal

mandated that the right to vote shall not be “denied or abridged” on

account of race, color, or previous condition of servitude. The major

difference was that, in an apparent effort to deal with situations such as

that of Georgia, the Senate version would also have prohibited the same

kinds of discrimination with respect to the right to hold office.

128

During

the initial consideration of the Senate proposal on January 23, Stewart

observed that “I do not think that it will involve long discussion.”

129

However, this prediction proved to be wildly optimistic. The amendment

was not finally approved by Congress until February 26,

130

and only after

a long, complicated series of debates that featured, among other things, an

all-night session of the Senate on February 8.

In part, the length of the deliberations reflected the need for

mainstream Republicans to deal with the objections raised by Democrats

and their allies. Not surprisingly, Democratic complaints were at times

couched in openly racist terms. For example, describing African-

Americans as morally and intellectually inferior to whites, Democratic

Sen. Thomas T. Hendricks of Indiana asserted, “I do not believe that the

negro race and the white race can mingle in the exercise of political power

126

. WILLIAM STEWART, REMINISCENCES OF SENATOR WILLIAM M. STEWART

OF NEVADA 232 (1908).

127

. CONG. GLOBE, 40th Cong., 3d Sess. 555 (1869).

128

. Id. at 286, 668.

129

. Id. at 541.

130

. Id. at 1641.

424 LOUISIANA LAW REVIEW [Vol. 82

and bring good results to society.”

131

In addition, Democrats sometimes

sought to characterize the effort to amend the Constitution as nothing more

than a cynical attempt to gain political advantage, with Democratic Sen.

James A. Bayard of Delaware declaring that “[t]he intent is, and the sole

intent [of the amendment is] to maintain the dominance of the

[Republican] party by . . . degradation of the suffrage.”

132

However, opponents of the proposed amendment more often cited

other reasons for objecting to the Republican initiative. Opponents

frequently raised issues of federalism. Thus, contending that the

amendment would undermine the position of the states within the federal

structure, Sen. James Dixon of Connecticut—a former Republican who by

1869 had joined the Democrats—declared that “it is utterly impossible that

any state should be an independent republic which does not entirely

control its own laws with regard to the right of suffrage.”

133

Building on

the same theme, Democrats at times argued that the amendment process

could not be used to limit state authority over suffrage, with Thomas

Hendricks contending that “the power of amendment is limited to the

correction of defects in the practical operations of the Government; but the

power of amendment does not carry with it the power to destroy one form

of government and establish another”

134

and that the proposed amendment

would “take away from the States a power which they retained and which

is necessary to that independence and sovereignty of the States which the

original compact contemplated they should enjoy.”

135

But perhaps the most common Democratic complaint was that the

effort to mandate African-American suffrage by federal law was

inconsistent with the terms of the party platform on which the Republicans

had stood during the election of 1868, and thereby broke an implicit

commitment made in that platform. Democrats contended that, in the

words of Democratic Rep. Charles A. Eldridge of Wisconsin, “if it be

possible that the Republican party can commit itself to anything . . . by its

action in national convention, [the party] committed solemnly to the

doctrine that the people of the several States have properly the right to

control the question of suffrage in their respective States.”

136

Eldridge

declared that “the Republican members [of Congress] cannot force this

131

. Id. at 989.

132

. Id. at 1303–04.

133

. Id. at 705.

134

. Id. at 988.

135

. Id.

136

. Id. at 645.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 425

measure upon the country at this time without covering their party with . . .

dishonor, without a shameful violation of party pledges and party faith.”

137

Democrats also argued that the declaration in the Republican platform

should be an important factor in establishing the ratification procedure for

any suffrage amendment that might be proposed. They reasoned that

voters had chosen the existing state legislatures with the understanding

that no such amendment would be put forward by Congress, and that if

voters who were opposed to African-American suffrage had been aware

that the issue would be presented to the legislature, they might well have

chosen to vote for different candidates. Given this problem, Democrats

insisted that any amendment should provide that ratification would be

accomplished either through the medium of state conventions or by

legislatures selected after the amendment was proposed by Congress.

138

Republicans struggled to provide a convincing answer to the claim that

the effort to require the states to allow African-Americans to vote was

inconsistent with the position that the party had taken during the recently

concluded election campaign. One response came from Jacob Howard,

who insisted that the statement in the party platform was nothing more

than a recognition of the existing state of affairs and did not in any way

foreclose the possibility of pressing for a constitutional amendment that

would limit the power of the states to regulate access to suffrage.

139

In any event, this debate was largely academic. As already noted,

during the third session of the 40th Congress, mainstream Republicans

were uniformly committed to the principle that African-Americans should

be allowed to vote. Moreover, they possessed the majorities necessary to

pass a constitutional amendment establishing that proposition in both the

House of Representatives and the Senate. The only remaining question

was whether they could agree on the precise form of the action that should

be taken.

1. The Rejection of Statutory Change

Some radical Republicans continued to press for the passage of a

statute instead of or in addition to a constitutional amendment. In the

House of Representatives, George Boutwell argued that Congress should

both pass an impartial suffrage statute and approve a constitutional

amendment,

140

while in the Senate, Charles Sumner was the most

prominent advocate of the position that Congress should pass only a

137

. Id.

138

. See, e.g., id. at 673 (statement of Sen. Thomas Hendricks).

139

. Id. at 986–87.

140

. Id. at 904.

426 LOUISIANA LAW REVIEW [Vol. 82

statute.

141

Radicals cited a number of different considerations in arguing

for statutory change.

First, supporters of a suffrage statute noted the complexity of the

process necessary to produce constitutional change. They observed that

while a statute could become effective immediately upon passage by

Congress and approval by the President, a constitutional amendment

would have to await “the uncertain concurrence of state legislatures.”

142

Thus, at best the effective date of any such amendment would be

postponed, and at worst the amendment might never receive the necessary

support from state legislatures at all.

In addition, Sumner and other radical Republicans expressed concerns

founded in constitutional theory. They feared that by resorting only to a

constitutional amendment, Congress would be implicitly conceding that,

in the absence of such an amendment, the federal government lacked

authority to regulate elections for state offices. This position was anathema

to some radicals; indeed, Sumner was so fearful of this possibility that he

opposed the passage of any constitutional amendment designed to

enfranchise African-Americans. He also suggested that a struggle over

ratification in the states would allow the Democratic party to use the issue

“as the pudding-stick with which to stir the bubbling mass.”

143

By contrast,

Boutwell, like most radicals, believed that Congress should adopt a

constitutional amendment in addition to a statute focusing on the suffrage

issue.

In offering their proposal, advocates of the suffrage statute faced the

perennial problem of identifying the source of congressional power to

address the issue. Sumner took the most extreme ground, reiterating his

oft-repeated assertions that “anything for Human Rights is

constitutional”

144

and that “there can be no State Rights against Human

Rights.”

145

More temperate radicals relied on their standard claims related

to the scope of the guaranty of a republican form of government in Article

146

and the enforcement clauses of both the Thirteenth

147

and Fourteenth

Amendments.

148

141

. Id.

142

. Id. at 504; see also id. at 561, 1001.

143

. Id. at 904.

144

. Id. at 902 (emphasis in original).

145

. Id.

146

. Id. at 721 (statement of Rep. William Kelley).

147

. Id. at 1004 (statement of Sen. Richard Yates).

148

. Id. at 558–59 (statement of Rep. George Boutwell), 1000 (statement of

Sen. George Edmunds).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 427

But despite their best efforts, the radical Republicans found relatively

little support for their broad conception of federal power. Their arguments

were rejected not only by Democrats, but also by a variety of mainstream

Republicans, including Sens. Jacob M. Howard of Michigan and Frederick

T. Frelinghuysen of New Jersey.

149

Howard emphasized the language of

Section 2 of the Fourteenth Amendment,

150

which, Howard asserted.

“[p]lainly and in the clearest possible terms recognize[d] the right of each

State to regulate the suffrage and to impart or to declare the necessary

qualifications of voters.”

151

Against this background, it soon became obvious that no suffrage bill

could gain the approval of Congress. Sumner’s proposal garnered only

nine votes in the Senate,

152

while Boutwell’s bill was never even brought

to a vote in the House. Thus, any effort to require states to allow African-

Americans to vote would have to take the form of a constitutional

amendment. However, the precise form of the amendment to be proposed

was determined only after an intense debate among mainstream

Republicans over a variety of different options.

2. Initial Consideration by the House of Representatives

In the House of Representatives, it was the question of whether the

language of Boutwell’s initial proposal provided sufficiently expansive

protections that provoked the greatest discord among Republicans.

Republican Reps. Samuel Shellabarger and John A. Bingham of Ohio both

introduced proposals that were founded on the basic principle of universal

manhood suffrage.

153

Both formulations would have generally required

states to allow adult males “of sound mind” access to the ballot but would

have allowed states to exclude those who had been convicted of serious

crimes. In addition, Shellabarger’s proposal would have allowed the states

to deny the ballot to those who had engaged in “insurrection or rebellion

against the United States.”

154

Bingham, on the other hand, would have allowed the states to impose

a one year residency requirement, observing that “each year there are

landed upon our shores hundreds of thousands of adult persons who are

149

. Id. at 979–80 (statement of Sen. Frederick Frelinghuysen), 1003

(statement of Sen. Jacob Howard).

150

. Id. at 1003.

151

. Id.

152

. Id. at 1041.

153

. Id. at 638–39 (statement of Rep. Samuel Shellabarger), 638 (statement of

Rep. John Bingham).

154

. Id. at 639.

428 LOUISIANA LAW REVIEW [Vol. 82

aliens [and] by the modern invention of forged naturalization papers

[allowing] the pollution of the ballot box by thousands who are not entitled

to vote, and yet control the elections of the people.”

155

More importantly,

unlike Shellabarger’s proposal, Bingham’s formulation would not have

allowed the states to exclude men simply because they had participated in

the rebellion. Instead, essentially embracing the principles of universal

suffrage and universal amnesty, Bingham asserted that “[t]he interests of

this great country demand that we shall so frame the fundamental law of

the country that we will take not vengeance for the past, but security for

the future” and that “[w]e should so amend our Constitution as to summon

back to the standard of the country and to the support of its Government

the whole multitude of men who but yesterday were in arms against us.”

156

Both proposals drew a variety of criticisms from other mainstream

Republicans. For example, Republican Rep. Benjamin F. Butler of

Massachusetts contended that the language of both proposals would call

into question the ability of the states to require that voters register prior to

casting ballots

157

and indicated that he supported the imposition of

educational requirements as well.

158

In addition, the idea of universal

amnesty that underlaid Bingham’s formulation drew the ire of

Republicans such as Rep. Glenn W. Scofield of Pennsylvania, who

characterized the concept as “an undeserved . . . act of grace to the cruel

men, who for four years drenched the land with blood, and whose

implacable hate still pursues the unforgiven Unionist [in the South] with

persecution, banishment, and murder.”

159

Ultimately, Shellabarger’s

amendment was defeated on a vote of 126–61

160

and Bingham was able to

garner only 24 votes in support of his proposal.

161

After the defeat of these

alternatives, Boutwell’s original proposal was adopted by a vote of 150–

42.

162

3. Initial Consideration by the Senate

The Senate began its work on a suffrage amendment even before the

House had completed the consideration of its version of the amendment.

In his speech introducing the proposal of the Senate Judiciary Committee

155

. Id. at 722.

156

. Id. at 723.

157

. Id. at 724.

158

. Id. at 724–25.

159

. Id. at 725.

160

. Id. at 744.

161

. Id.

162

. Id. at 745.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 429

on January 28, William Stewart pressed for quick action. He noted that

“[e]very person in the country has discussed it; it has been discussed in

every local paper, by every local speaker; [and] it has been discussed at

the firesides.”

163

Thus, he declared, “I cannot add to the many eloquent

speeches that have [already] been made on this great question . . . I want a

vote . . . I hope we shall soon have a vote upon the question.”

164

However, the liberal Senate rules left Stewart powerless to attain his

wish. The Judiciary Committee proposal was the subject of seemingly

endless discussions, including an all-night session on February 8, and a

wide variety of amendments were offered. For example, on January 29,

seeking to prohibit discrimination on the basis of sex as well as

discrimination on the basis of race, Republican Sen. Samuel C. Pomeroy

of Kansas moved to amend Stewart’s proposal to provide that “the right of

citizens . . . to vote and hold office shall not be denied or abridged . . . for

any reasons not equally applicable to all citizens of the United States.”

165

Asserting that “human nature, claiming its rights, has no sex” and that “the

mind and the soul have no gender,”

166

Pomeroy insisted that “[t]here are

no reasons for giving the ballot to a man that do not apply to a woman with

equal force.”

167

By making this proposal, Pomeroy raised an issue that divided

Republicans throughout the early Reconstruction era. Feminists and their

allies had been infuriated by the language of section two of the Fourteenth

Amendment, which reduced the representation of states that denied the

right to vote to certain classes of men but allowed states to exclude women

from voting rights without suffering any penalty.

168

However, prior to

1869 the most complete congressional discussion of the issue of whether

women should be allowed to vote had taken place in December 1866, in

connection with the Senate’s consideration of the bill that was designed to

extend the right to vote to African-Americans in the District of Columbia.

163

. Id. at 668.

164

. Id.

165

. Id. at 708.

166

. Id. at 709.

167

. Id. at 710. For other discussions of the debate over the issue of women’s

suffrage during the early Reconstruction era, see, e.g. FAY E. DUDDEN, FIGHTING

CHANCE: THE STRUGGLE OVER WOMAN SUFFRAGE AND BLACK SUFFRAGE IN

RECONSTRUCTION AMERICA (2011); ELLEN C. DU BOIS, FEMINISM AND

SUFFRAGE: THE EMERGENCE OF AN INDEPENDENT WOMEN’S MOVEMENT IN

AMERICA 1848-1869, at 71–72 (1978); FONER, RECONSTRUCTION, supra note 48,

at 112–15 and sources cited therein.

168

. Nina Morais, Sex Discrimination and the Fourteenth Amendment: Lost

History, 97 YALE L.J. 1153, 1155–57 (1988).

430 LOUISIANA LAW REVIEW [Vol. 82

In an effort to embarrass supporters of the bill, Sen. Edgar Cowan of

Pennsylvania—a nominal Republican who by late 1866 had become a

consistent supporter of the Democrats on race-related issues—proposed an

amendment that would have extended the right to vote to women in the

District.

169

During the debate that followed, some mainstream Republican

senators, including Sens. Henry B. Anthony of Rhode Island, B. Gratz

Brown of Missouri, and Benjamin Wade of Ohio,

170

expressed their

support for the Cowan amendment. Nonetheless, it soon became clear that

most Republicans opposed the amendment.

A number of Republicans argued that intrinsic differences between

men and women justified the policy of restricting the right to vote to men.

For example, observing that “the women of America are not called upon

to serve the Government as the men of America are,”

171

Frederick T.

Frelinghuysen noted that “[t]hey do not bear the bayonet, and have not that

reason why they should be entitled to the ballot”

172

and that “it seems to

me as if the God of our race has stamped upon them a milder, gentler

nature, which not only makes them shrink from, but disqualifies them for

the turmoil and battle of public life.”

173

Similarly, Republican Sen. Lot

Morrill of Maine declared that the right to vote “associates the wife and

mother with policies of state, with public affairs, with making,

interpreting, and executing the laws, with police and war, and necessarily

disseverates [sic] her from purely domestic affairs, peculiar care for and

duties of the family; and, worst of all, assigns her duties revolting to her

nature and constitution, and wholly incompatible with those which spring

from womanhood.”

174

Assertions such as these were often linked with appeals to what was

known as the theory of “virtual representation”—the idea that women had

no need for the right to vote because, unlike African-Americans, their

interests could be adequately represented by the men to whom they were

related. Thus, Frelinghuysen asserted that “the women of America vote by

faithful and true representatives, their husbands, their brothers, their sons;

and no true man will go to the polls and deposit his ballot without

remembering the true and loving constituency that he has at home.”

175

169

. CONG. GLOBE, 39th Cong., 2d Sess. 46 (1866).

170

. Id. at 55–56 (statement of Sen. Henry Anthony), 76–78 (statement of Sen.

B. Gratz Brown), 62–63 (statement of Sen. Benjamin Wade).

171

. Id. at 66.

172

. Id.

173

. Id.

174

. Id. at 40.

175

. Id. at 66.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 431

Other Republicans spoke frankly in terms of expediency in explaining

the reasons that they opposed the Cowan amendment. They worried that

attaching the amendment to the District of Columbia suffrage bill would

result in the defeat of the bill and that the opportunity to enfranchise the

African-American residents of the city would thereby be lost. The

statement of Republican Sen. Henry Wilson of Massachusetts reflected

this view. Wilson asserted, “I am for enfranchising the black man, and then

if [the women’s suffrage] question shall come up in due time and I have a

vote to give I shall be ready to give my vote for it.”

176

But at the same time,

he also declared that “to vote [for women’s suffrage] now is to couple it

with the great measure now pressing upon us, to weaken that measure and

to endanger its immediate triumph, and therefore I shall vote against the

[Cowan] amendment.”

177

Taken together, these considerations led most Republicans to oppose

the Cowan amendment. When the Senate took the final vote on December

12, 1866, it rejected the amendment by a vote of 37–9.

178

Moreover, four

of those who supported the amendment were Democrats who no doubt

hoped to use the issue of sex discrimination to undermine the entire

suffrage bill. Thus, Senate Republicans overwhelmingly rejected the idea

that the party should commit itself to the principle of sex-blind suffrage.

Less than three years later, Pomeroy’s proposal also generated little

enthusiasm among his Republican colleagues. Although Pomeroy himself

attacked the theory of virtual representation,

179

Republicans such as Sen.

Frederick A. Sawyer of South Carolina continued to insist that men could

be trusted to protect the interests of their wives and daughters.

180

Conversely, Republican Sen. Willard Warner of Alabama took a position

similar to that which had underlain Henry Wilson’s opposition to the

Cowan amendment in 1866. While declaring that if the decision were his

alone he would grant women the right to vote, Warner also observed, “I

know that woman’s suffrage is not now attainable” and declared, “I would

not, as a practical legislator, jeopardize [African-American suffrage] by

linking with it that which is impossible.”

181

Against this background, the

Senate never even put Pomeroy’s proposal to a vote.

Republicans were more closely divided over the question of whether

a constitutional amendment should prohibit racial discrimination generally

or should instead focus only on African-Americans, leaving the states free

176

. Id. at 63.

177

. Id. at 64.

178

. Id. at 84.

179

. Id.; CONG. GLOBE, 40th Cong., 3d Sess. 709–10 (1869).

180

. CONG. GLOBE, 40th Cong., 3d Sess. 998 (1869).

181

. Id. at 862.

432 LOUISIANA LAW REVIEW [Vol. 82

to deny the right to vote to other racial and ethnic minorities. A number of

Republicans who took the latter position represented states from the far

west that were home to a substantial number of Chinese immigrants.

Although only white immigrants were eligible for naturalization at the

time that the constitutional amendment was being considered, these

senators expressed the fear that this aspect of the naturalization statute

might be changed at some later date and wished to guard against the

possibility that the states might then be required to enfranchise natives of

China who took advantage of the opportunity to become American citizens

in the future. For example, asserting that natives of China “bring with them

institutions of paganism which they are establishing here” and observing

that “in San Francisco they now have their places of worship in which

idols are set up,” Republican Sen. Henry W. Corbett of Oregon declared

that “the question is whether you desire to allow this class of people to

come in and overthrow the Christian institutions established on the Pacific

coast by the American people, a Christian people.”

182

Those who shared Corbett’s sentiments proposed a number of

different formulations that were designed to achieve the objective of

leaving Asian immigrants outside the scope of the protection of any

constitutional amendment.

183

However, the most important of the

proposals that were designed to limit the effect of the constitutional

amendment only to the situation faced by African-Americans was

engendered by an idiosyncratic concern that was expressed by Jacob

Howard. Howard does not seem to have been particularly concerned with

the possibility that natives of China might at some point be allowed to

vote. Instead, he repeatedly insisted that both the Boutwell and Stewart

formulations would, by negative implication, vest the federal and state

governments with the authority to impose religious qualifications for

voters. Seeking to eliminate this problem, he proposed an amendment that

would have provided that “citizens of the United States of African descent

shall have the same right to vote and hold office in States and Territories

as other citizens [who are] electors of the most numerous branch of their

respective Legislatures.”

184

Voicing his support for Howard’s proposal,

Orrin Ferry declared that “when we propose to amend the Constitution we

should carry our actions just so far as the evil [to be addressed] extends

[and] the amendment [that Howard proposes] reaches to the full extent of

182

. Id. at 1035.

183

. E.g., id. (proposing to add language prohibiting naturalization of

immigrants from China).

184

. Id. at 1008.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 433

the evil, the wrong done to a certain class of citizens which is now

proposed to be remedied.”

185

However, other Republicans decried the effort to limit protection to

African-Americans. Thus, Willard Warner asserted that “to single out one

race is unworthy of the country and unworthy of the great opportunity now

presented to us”

186

and George Edmunds declared that “there is nothing

republican in [the Howard proposal].”

187

Despite arguments such as these,

at one point Howard seems to have convinced a majority of his mainstream

Republican colleagues in the Senate that his proposal was superior to that

which the judiciary committee had produced. While on February 17 the

effort to substitute the Howard language failed on a vote of 27–22, the

margin of victory was provided by Democrats who were no doubt anxious

to keep the issue of the status of Chinese immigrants alive in any potential

dispute over ratification and voted unanimously to leave the committee

language intact.

188

Other Republicans raised a very different objection to the language of

the Stewart proposal. Just as they had in the House, advocates of universal

manhood suffrage played a major role in the Senate discussions of the

proposed constitutional amendment. Willard Warner delivered a

particularly passionate plea in support of universal suffrage.

189

Taking

direct aim at those who contended that the proposed constitutional

amendment would unduly infringe on state’s rights, Warner asserted that

“it is a proposition too clear for argument that to . . . the whole people [of]

the nation belongs the decision of the question [of] who shall exercise

political power”

190

and that

to allow States to determine who of the citizens of the nation shall

have political power is to give away the most essential and vital

attribute of sovereignty—to concede a power which may be used

to build up an aristocracy or to change and destroy our system of

government.

191

He also contended that

[the idea] that a citizen living in Massachusetts should lose his

right to vote for President by moving to Connecticut, or that

185

. Id.

186

. Id. at 1009.

187

. Id. at 1008.

188

. Id. at 1311.

189

. Id. at 861–62.

190

. Id. at 862.

191

. Id.

434 LOUISIANA LAW REVIEW [Vol. 82

different qualifications for voting for President, for instance,

should be required in different parts of the country, is . . .

manifestly wrong and . . . clearly at variance with [the Privileges

and Immunities Clause of Article IV].

192

Warner also took issue with the narrowness of the Stewart proposal on

policy grounds. He observed that while the fundamental purpose of the

proposed constitutional amendment was to enfranchise African-

Americans, “without any violation of its letter or spirit, nine tenths of them

might be prevented from voting . . . by . . . an intelligence or property

qualification.”

193

He also contended more generally that such

qualifications would effectively disenfranchise those who were most in

need of the ballot, observing that

“[t]he millionaire in his money, and the man of education in his

knowledge and brain, have each a power . . . greater than a

hundred ballots [while] [i]t is the poor, unlearned man, who has

nothing but the ballot, to whom it is a priceless heritage, a

protection and a shield.”

194

In an effort to address these issues, Warner, like Bingham before him, put

forth a proposal that would have effectively provided for universal

suffrage and universal amnesty.

195

However, when this formulation came

to a vote on February 9, it garnered the support of only five Republicans.

196

By contrast, the universal suffrage amendment supported by Henry

Wilson gained far more traction in the Senate. In framing his proposal,

Wilson took a somewhat different tack than Bingham, Shellabarger, and

Warner. Rather than including sweeping language that abolished by its

terms virtually all limitations on access to the ballot, Wilson moved to

change the language of the proposed constitutional amendment to

specifically prohibit discrimination based on race, color, nativity,

property, education, or creed.

197

In supporting this proposal, Republican

Sen. John Sherman of Ohio asked:

Why should we protect the African in the enjoyment of suffrage

when in certain States of the Union even naturalized citizens

cannot vote? Why should we protect the descendant of the African

192

. Id.

193

. Id.

194

. Id.

195

. Id. at 861.

196

. Id. at 1041.

197

. Id. at 1029.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 435

when in certain States of the Union a man who has the misfortune

not to be able to read and write cannot vote? Why should we apply

this supreme remedy of the Constitution only in favor of this

particular class of citizens? Senators must see at once that to rest

this constitutional amendment up on so narrow a ground is not

defensible.

198

Responding to these arguments, the Republican opponents of the

Wilson formulation raised two different types of objections. First, some

suggested that an education requirement was in fact a desirable

prerequisite for the exercise of the franchise. Thus, in the view of Roscoe

Conkling of New York, such a stipulation would limit the right to vote to

those who possessed “a standard of intelligence above the most groveling

and besotted ignorance.”

199

Others were concerned with the impact of the

Wilson proposal on states’ rights. For example, in sharp contrast to

Warner, Jacob Howard complained that the adoption of a universal

suffrage requirement would “overthrow and uproot the very foundations

of the State constitutions.”

200

When the Wilson proposal first came to a vote on February 9, it failed

by a margin of 24–19.

201

However, later that same day, the Senate reversed

itself and approved the proposal on a 31–27 vote.

202

A number of senators

who had been absent for the first roll call ultimately voted to support the

Wilson proposal. Nonetheless, his language could not have been adopted

without the support of three Republican senators—Joseph C. Abbott of

North Carolina, Thomas Robertson of South Carolina, and Waitman T.

Willey of West Virginia—all of whom switched sides on the second vote.

Thus, the Senate became at least tentatively committed in principle to the

concept of universal suffrage for adult men.

However, before final Senate approval of the proposed constitutional

amendment, the addition of a provision that was designed to reform the

electoral college muddied the waters even further. This amendment was

the brainchild of Democratic Sen. Charles R. Buckalew of Pennsylvania,

who introduced the proposal on January 28. Buckalew’s ire was directed

at the prevalence of the so-called general ticket in presidential elections,

whereby the person receiving a majority of the popular vote in any state

would receive all of the electoral votes from that state. Buckalew

characterized the use of the general ticket as “unjust and unfair” and

198

. Id. at 1039.

199

. Id. at 1038.

200

. Id. at 1037.

201

. Id. at 1029.

202

. Id. at 1040.

436 LOUISIANA LAW REVIEW [Vol. 82

argued that the use of that device rendered the electoral college “worse

than a sham [but rather] positively pernicious.”

203

In 1842, Congress outlawed the use of the general ticket in elections

for the House of Representatives, requiring instead that individual

members of Congress be chosen by district.

204

The difficulty was that

while Article I, Section 4 of the Constitution vests Congress with the

authority to prescribe the “Times, Places and Manner of holding Elections

for [the House],”

205

Article II, Section 1 provides that electors shall be

chosen “in such Manner as the [state] Legislature [shall] direct.”

206

Buckalew proposed to remedy this situation by requiring that electors be

chosen by a vote of the people qualified to vote in elections for the House

of Representatives and vesting Congress with the power to prescribe the

procedures to be used in the selection of the electors.

After some discussion, the Buckalew amendment was referred to the

Committee on Representative Reform, where it received unanimous

approval. On February 9, shortly after the Senate had adopted the Wilson

formulation, Oliver Morton moved to have the Buckalew initiative

appended to the proposed constitutional amendment.

207

During the brief

debate that followed, Buckalew presciently emphasized the fact that the

regime then in place created the real possibility that a presidential

candidate might emerge victorious despite receiving fewer popular votes

than some other candidate—a possibility that would come to fruition in

the presidential elections of 1888, 2000, and 2016.

208

Several senators also

noted that under the existing Constitution, states were not even required to

select electors by popular vote, and both Morton and Democrat Thomas

Hendricks noted that in South Carolina and Florida the state legislatures

had chosen electors in 1868.

209

Against this background, the Senate initially rejected the

Buckalew/Morton proposal by a narrow margin.

210

However, on a second

vote the electoral college reform measure was appended to the proposed

203

. Id. at 671.

204

. The evolution of the Apportionment Act of 1842 is described in detail in

Robert Ross, Recreating the House: The 1842 Apportionment Act and the Whig

Party’s Reconstruction of Representation, 49 POLITY 408 (2017).

205

. U.S. CONST. art. I, § 4.

206

. Id. art. II, § 1.

207

. CONG. GLOBE, 40th Cong., 3d Sess. 1041 (1869).

208

. E.g., id. at 1042 (statement of Sen. Oliver Morton), 1043 (statement of

Sen. George Edmunds).

209

. Id. at 1042.

210

. Id. at 1041.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 437

Fifteenth Amendment by a vote of 37–19

211

and the decision to add the

proposal survived a motion to reconsider by a margin of 28–26.

212

Almost

immediately thereafter, by a vote of 39–16, the combination of the Wilson

and Buckalew formulations was approved as a substitute for the

amendment that had been adopted by the House of Representatives and

this substitute was sent to the House for its consideration.

213

4. Response of the House of Representatives

The House of Representatives discussed the Senate language on

February 15. John Bingham quickly moved to concur with the Senate and

send the proposal to the state legislatures for their consideration.

214

George

Boutwell, however, argued that both portions of the Senate amendment

were fatally flawed. Boutwell contended that the Wilson formulation left

a giant loophole because it failed to explicitly prohibit discrimination

based on previous condition of servitude. Thus, he reasoned that the ex-

Confederate states would remain free to disenfranchise virtually all free

African-Americans by simply denying the right to vote to all those who

had previously been enslaved.

215

In addition, Boutwell observed that the

proposed reform of the electoral college system did not include a

requirement that the regulations adopted by Congress be uniform

throughout the nation, and that whatever party was in control of Congress

would therefore apparently be left free to manipulate the rules to their

advantage.

216

After Boutwell voiced these objections, the House considered the

Wilson language separately from the Buckalew amendment. Although

Bingham vigorously disputed Boutwell’s assessment of the significance

of the failure to prohibit discrimination based on previous condition of

servitude,

217

the mere possibility that Boutwell was correct was sufficient

to convince many supporters of universal manhood suffrage of the need

for a conference on this issue, and Bingham’s motion to concur in this part

of the Senate amendment garnered only 37 votes.

218

Immediately

thereafter, the motion to concur in the electoral college reforms failed

211

. Id. at 1042.

212

. Id. at 1044.

213

. Id.

214

. Id. at 1224.

215

. Id. at 1225.

216

. Id.

217

. Id.

218

. Id.

438 LOUISIANA LAW REVIEW [Vol. 82

without even a roll call vote.

219

Under these circumstances, the rules of the

House of Representative required that the House request a conference with

the Senate, and Speaker Schuyler Colfax designated Boutwell,

Shellabarger, and Democrat Charles Eldridge to represent the House on

the conference committee.

220

5. Senate Action

When the notice of the House request reached the Senate on February

17, William Stewart immediately moved to have the Senate accede to the

request.

221

However, after both George Williams and Charles Buckalew

contended that the issue was too important to refer to a conference

committee,

222

Stewart withdrew this motion. Instead, mindful that the end

of the session was rapidly approaching and anxious to obtain the passage

of some form of suffrage amendment, Stewart sought to have the Senate

recede from its own proposal and concur in the measure that had originally

passed the House.

223

Not surprisingly, Democrats and their allies were adamantly opposed

to this motion.

224

But the main problem that Stewart faced was that some

mainstream Republicans were also dissatisfied with the formulation that

had passed the House. For these Republicans, the main problem did not lie

with the lack of a provision reforming the presidential selection process.

For example, Oliver Morton, who had championed the proposal that dealt

with this issue, declared, “I am not willing . . . to risk the adoption of a

constitutional amendment on the main question even by attaching to it [a

proposal] so good [as the Buckalew amendment].”

225

Nor were most

Senate Republicans adamant about the need to provide for universal

manhood suffrage rather than simply outlawing discrimination based on

race. Thus, Henry Wilson regretfully observed, “My [proposal], I am sorry

to find, is too broad, comprehensive, and just to be sustained by the

country.”

226

Instead, the main sticking point was the failure of the House language

to address the issue of racial discrimination in eligibility for office. This

219

. Id.

220

. Id. at 1226.

221

. Id. at 1284.

222

. Id. at 1284–85.

223

. Id. at 1285.

224

. See, e.g., id. at 1285–86 (statement of Sen. Charles Buckalew), 1299

(statement of Sen. Willard Saulsbury, Sr.).

225

. Id. at 1292.

226

. Id. at 1291.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 439

issue formed the backdrop of a bitter exchange between Wilson and

Stewart, with Wilson accusing Stewart of abandoning the African-

Americans who had been excluded from the state legislature in Georgia

227

and Stewart responding that if Wilson himself had not insisted on

expanding the prohibitions embodied in the original Senate provision that

had dealt with officeholding, the latter provision would have had a much

better chance of passage in the House of Representatives.

228

Stewart also

noted that “[s]ome of our leading Republican journals have objected to”

the idea of dealing with the right to hold office

229

and asserted that “[t]he

only hope for getting anything is to vote for [the House] proposition.”

230

In contrast, Frederick Sawyer declared, “I had rather have nothing than to

have this.”

231

When the votes were counted, it became clear that Stewart had stepped

into a parliamentary trap of his own creation. In order for Stewart’s

maneuver to succeed, he would have had to prevail on two separate votes.

The first step was for the Senate to agree to abandon the proposal that had

passed that chamber on February 9. Approval of this proposal required

only a simple majority, and the motion carried by a margin of 33–24.

232

But in addition to receding from its own version of the suffrage

amendment, the Senate was also required to affirmatively vote to adopt

the Boutwell language, and on this point a two-thirds majority was

necessary. Thus, while a majority of those voting supported Stewart on

this point, the motion failed on a vote of 31–27.

233

As a result, Stewart’s

effort to break the legislative logjam brought the Senate back to square one

in the amendment process.

At this point, the senators began anew the consideration of Stewart’s

original language, which would have barred racial discrimination with

respect to both the right to vote and the right to hold office. As the Senate

remained in session for twelve consecutive hours, the tempers of the

exhausted senators became increasingly frayed. Republican Sen. James

W. Nye of Nevada summed up the mood of the entire body when he

exclaimed, “I am sick of hearing [this discussion]. It has become painful

to listen to it.”

234

In a war of attrition, Stewart ultimately prevailed. After

the Senate considered and rejected a number of efforts to change the

227

. Id. at 1296.

228

. Id.

229

. Id. at 1299.

230

. Id. at 1298.

231

. Id. at 1299.

232

. Id. at 1295.

233

. Id. at 1300.

234

. Id. at 1306.

440 LOUISIANA LAW REVIEW [Vol. 82

language of the amendment, on February 17 mainstream Republicans

united around the Stewart proposal and sent it back to the House on a 35–

11 vote.

235

6. The House of Representatives Changes Course

When the amendment that the Senate had passed reached the House

floor, in parliamentary terms the proposal occupied a position that was

very different from that of the Wilson formulation that had arrived only

five days before. Rather than being styled as an amended version of

legislation that had already been passed by the House, the Stewart

amendment had the status of an entirely new proposal. Therefore, before

the House could even consider the idea of a conference committee, it was

required to approve either the Stewart amendment itself or some variation

thereof by a two-thirds vote. Against this background, Republican Rep.

Benjamin F. Butler of Massachusetts pleaded with his colleagues to adopt

the Senate proposal without change, observing that Senate rules would

allow renewed, extended debate over any alterations and declaring that “if

we do not take this I fear we shall get nothing.”

236

However, a number of

his Republican colleagues were undeterred by this possibility and sought

to make changes in the proposed amendment before a final vote on passage

by the House.

Republican Rep. John A. Logan of Illinois moved to remove the

references to the right to hold office from the proposed constitutional

amendment. Drawing on principles of federalism, Logan argued that the

authority to determine which persons were qualified to make crucial

governmental decisions “has been properly left [to the states themselves]

by the Constitution.”

237

He also contended that direct constitutional

protection for the right to hold office was unnecessary, arguing that once

African-Americans were granted the right to vote, they “will take care of

the right to hold office [for themselves].”

238

But lurking beneath the

surface was also the fear of a political backlash against an amendment that

dealt with officeholding. To ask voters to give African-Americans the right

to vote was one thing, but explicitly suggesting to whites that they should

agree to be ruled by people of color was quite another.

239

However, most

235

. Id. at 1318.

236

. Id. at 1426.

237

. Id.

238

. Id.

239

. The Jeopardized Amendment, GERMANTOWN TEL., Mar. 3, 1869, at 3.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 441

Republicans in the House found these arguments unconvincing, and

Logan’s proposal was defeated on a 95–70 vote.

240

In sharp contrast to Logan’s measure, both Samuel Shellabarger and

John Bingham once again sought to broaden the constitutional protections

established by the Stewart amendment. While Shellabarger reintroduced

the same universal suffrage proposal that he had advocated when the

House had first considered Boutwell’s formulation in early February,

241

Bingham put forth language that in some ways resembled the Wilson

proposal that had originally passed the Senate. Bingham’s formulation

would have prohibited discrimination not only on the basis of race and

previous condition of servitude, but also nativity, property, and creed.

242

However, unlike the original Wilson amendment, the Bingham proposal

made no mention of discrimination based on education.

Despite being opposed by a substantial number of mainstream

Republicans, Bingham’s alternative was adopted by the House on a vote

of 92–70.

243

The margin of victory was provided by 20 Democrats who no

doubt supported the proposal in the hope that its adoption would

undermine the entire effort to have the 40th Congress pass a suffrage

amendment. Shellabarger then withdrew his universal suffrage

proposal.

244

Nonetheless, when the House passed the amended version of

the suffrage measure on a vote of 140–37,

245

the two houses of Congress

had, in the words of William Gillette, “performed a legislative

somersault.”

246

The House of Representatives, rather than the Senate, was

now proposing the more radical version of the suffrage amendment.

7. The Approval of the Conference Committee Proposal

When the action of the House was reported to the Senate on February

22, Stewart did not repeat his earlier tactical error. He immediately moved

to convene a conference committee, and with little discussion the motion

carried by a vote of 32–17 over the objections of six Southern Republicans

who no doubt feared that a conference committee might delete the

protection for officeholding.

247

Stewart, Roscoe Conkling, and George

Edmunds were then chosen to represent the Senate. The following day, the

240

. CONG. GLOBE, 40th Cong., 3d Sess. 1428 (1869).

241

. Id. at 1426.

242

. Id. at 1425.

243

. Id. at 1428.

244

. Id.

245

. Id.

246

. GILLETTE, supra note 8, at 69.

247

. CONG. GLOBE, 40th Cong., 3d Sess. 1481 (1869).

442 LOUISIANA LAW REVIEW [Vol. 82

House reciprocated by also approving a conference and appointing John

Bingham, George Boutwell, and John Logan to act on behalf of its

interests.

248

The report that emerged from the conference committee confirmed the

worst fears of the Southern Republican senators. The conferees decided

not only to have the amendment focus solely on discrimination based on

race, color, or previous condition of servitude, but also to eliminate all

reference to officeholding from the text. The moving forces behind the

decision were apparently John Bingham and John Logan, both of whom

had opposed the officeholding provision in the House. During the

deliberations of the conference committee itself, Bingham and Logan were

able to persuade Stewart and Conkling to accept their position as well.

249

According to George Edmunds, the choice to delete the provision was not

based on a philosophical objection to the idea of providing federal

protection for the right to hold office. Instead, a majority of the committee

members based their decision on a political calculation, believing that the

“people will not be satisfied to give the negro the right to run against

themselves for some office, but they are willing to confer upon him the

boon of voting for them.”

250

Some Republicans, however, believed that these fears were

overblown. While on February 25 the House of Representatives passed the

conference committee measure without debate by a vote of 144–44,

251

the Senate the situation was different. Led by Edmunds, who had refused

to sign the conference committee report, more radical Republicans

vigorously objected to the terms of the proposed amendment. For example,

Samuel Pomeroy assailed the actions of the committee as

“unparliamentary and almost unprecedented,”

252

while a number of others

relied on the example of the situation in Georgia to refute any claim that

the right to vote would automatically carry with it the right to hold

office.

253

However, such complaints failed to move most Senate Republicans.

Although a majority of Republicans favored the idea of protecting the right

to hold office in principle, they were willing to sacrifice this concept in

order to ensure the passage of a suffrage amendment. Some continued to

express the hope that once African-Americans were securely enfranchised,

248

. Id. at 1495.

249

. STEWART, supra note 126, at 236.

250

. CONG. GLOBE, 40th Cong., 3d Sess. 1626 (1869).

251

. Id. at 1563–64.

252

. Id. at 1623.

253

. Id. at 1627 (statement of Sen. Henry Wilson), 1629 (statement of Sen.

Frederick Sawyer).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 443

the officeholding problem would eventually take care of itself. Speaking

earlier, James Nye had given voice to this view in particularly colorful

language, stating:

Give me the majority of the ballots, and I will fix who shall hold

offices in a State. [African-Americans] will fix it; and they are

not . . . so stupid that they will not fix it in opposition, if need be,

to the Senators who represent them on this floor.”

254

In the end, those who opposed the committee formulation were

helpless. With the session rapidly drawing to a close, it was clear that the

choice was between adopting the conference committee report and having

no constitutional amendment protecting African-American suffrage at all.

Henry Wilson summed up both the dilemma facing those who preferred

broader language and the conclusion ultimately reached by most

Republican senators, declaring:

“I have asked always for what was right and taken on all occasions

what I could get. I have acted upon the idea that one step taken in

the right direction made the next step easier to be taken. I

suppose . . . I must act upon that idea now.”

255

Thus, when the Senate took the final vote on February 26, it passed the

conference committee proposal on a vote of 39–13. While a number of

more radical Republicans abstained, only one mainstream Republican—

John Pool of North Carolina—was sufficiently incensed to vote against

the acceptance of the committee report.

256

Thus, after long and tortuous

consideration, Congress had finally approved a constitutional amendment

to send to the state legislatures for their consideration.

III. THE BATTLE OVER RATIFICATION

After the House of Representatives and the Senate approved the final

version of the Fifteenth Amendment, the Republican effort to obtain

ratification by the requisite three-quarters of the state legislatures began

almost immediately. During the campaign for ratification, Republicans

generally emphasized two points that had figured prominently in the

congressional debates. First, they contended that allowing African-

Americans to vote was a matter of simple justice, with one Republican

newspaper proclaiming that disenfranchisement of African-Americans

254

. Id. at 1306; see also id. at 1625 (statement of Sen. Jacob Howard).

255

. Id. at 1626.

256

. Id. at 1641.

444 LOUISIANA LAW REVIEW [Vol. 82

“cannot now be regarded . . . as anything less than monstrous

[symbolizing] a hideous system of caste, and making badges of servitude

where none should exist,”

257

and another insisting that “[t]he experience

of the past is sufficient to convince all candid and impartial men that the

colored citizens will never be able to enjoy their civil rights as long as the

right to vote is denied them.”

258

In addition, the supporters of ratification

argued that granting African-Americans the right to vote was “the surest

and speediest method of attaining general peace and tranquility and

freedom from the turmoil and anarchy which the suffrage question has

already provoked in many localities.”

259

Opponents of ratification also relied on familiar arguments. Thus,

invoking the concept of federalism, Democratic Gov. John W. Stevenson

of Kentucky insisted that “[t]he question is not, what upon principles of

right, each state should adopt as the elements of suffrage, but whether the

Government is to be changed, and the states to be deprived practically of

their stateship,”

260

while the Providence Journal asserted that “[i]f [the

amendment is ratified], it will only be an overthrow of state institutions

under the spurious guise of a constitutional amendment in favor of

freedom.”

261

In addition, the Daily Intelligencer complained that, by

proposing the Fifteenth Amendment, Republicans were “[f]alsifying . . .

the pledge given at the Chicago Convention.”

262

Against this background, the effort to have the amendment ratified

faced a variety of different challenges. First, while some leaders of the

257

. The Constitutional Amendment, N. AM. & U.S. GAZETTE (Phila.), Oct. 5,

1869, at 2.

258

. The Amendment in Kentucky, MILWAUKEE DAILY SENTINEL, Mar. 19,

1869, at 2.

259

. The Suffrage Constitutional Amendment, UNION & DAKOTAIAN

(Yankton, S.D.), Mar. 6, 1869, at 2; see also, e.g., Danger to the Amendment, N.

AM. & U.S. GAZETTE (Phila.), Sept. 10, 1869, at 2 (showing that adoption of

amendment would “suddenly and finally terminate all struggles about negroes,

and remove entirely from politics all the long continued excitement and agitations

with regard to them and their rights”).

260

. Gov. Stevenson, of Kentucky, on the Fifteenth Constitutional Amendment,

CHARLESTON COURIER, TRI-WEEKLY, Mar. 20, 1869, at 2.

261

. The Fifteenth Amendment, DAILY NAT’L INTELLIGENCER (Wash., D.C.),

Apr. 12, 1869, at 2.

262

. Will General Grant Endorse the New Suffrage Amendment?, DAILY

NAT’L INTELLIGENCER (Wash., D.C.), Mar. 4, 1869; see also Same Bad Faith and

Broken Promises, DAILY NAT’L INTELLIGENCER (Wash., D.C.), Oct. 6, 1869, at 2

(“We should really like to know how faith could be more completely and

shamefully broken than the faith of the [Republican] party in proposing and

endeavoring to pass [the Fifteenth Amendment].”)

2022] THE COMING OF THE FIFTEENTH AMENDMENT 445

women’s movement supported the Fifteenth Amendment, others opposed

ratification because the amendment left the states free to deny women the

right to vote. Thus, for example, Elizabeth Cady Stanton asserted that

“[m]anhood suffrage is national suicide and woman’s destruction”

263

and

successfully persuaded the members of the National Woman’s Suffrage

Association to pass a resolution that declared, “[W]e repudiate the

Fifteenth Amendment, because by its passage in Congress, the Republican

party propose to substitute [for racial discrimination] an aristocracy of sex,

the most odious distinction in citizenship that has ever yet been proposed

since Governments had an existence.”

264

In addition, particularly in the West, the issue of the impact of the

proposed amendment on the status of natives of China played an even

more prominent role than it had in the debate over the amendment in the

Senate. In the campaign leading up to the 1869 elections for state offices

in California, Democrats contended that the Fifteenth Amendment would

lead to the enfranchisement of Chinese immigrants, which in turn would

create a voting bloc controlled by the railroads and eventually lead to even

greater Chinese immigration.

265

By contrast, noting that the amendment

did not bar discrimination on the basis of “nativity,” Sen. William Stewart

argued that, even if the amendment were ratified, states could bar Chinese

immigrants from voting on that basis.

266

Supporters of the amendment also

observed that under existing naturalization laws Chinese immigrants could

not become citizens and could therefore be denied access to the ballot

regardless.

267

Against this background, Stewart’s home state of Nevada

ratified the amendment, but the California state legislature

overwhelmingly voted against ratification and the Oregon legislature took

no action at all on the issue.

268

The effort to ratify the amendment met strong resistance in other parts

of the nation as well. The intensity of the opposition to ratification was

clearly reflected in Indiana in March 1869, when a large majority of

Democratic state legislators resigned in order to leave both houses of the

state legislature without the quorums necessary for the Republican

263

. Equal rights: Anniversary of the American Equal Rights Association,

N.Y. TIMES, May 13, 1869, at 1.

264

. The Aristocracy of Sex—Note From Miss Susan B. Anthony, N.Y. TIMES,

June 5, 1869, at 5.

265

. GILLETTE, supra note 8, at 154.

266

. Id. at 157.

267

. Id. at 156.

268

. Id. at 153–58.

446 LOUISIANA LAW REVIEW [Vol. 82

majorities to conduct ratification proceedings.

269

In addition, in April

1869, the issue of ratification became directly entangled with the process

of reconstruction itself, as Congress considered a bill that dealt with the

reconstruction of Virginia, Mississippi, and Texas. Reacting to the actions

of the Democrats in his home state, Indiana Republican Sen. Oliver H.P.T.

Morton moved to add a requirement that each of the three states ratify the

Fifteenth Amendment as a precondition to having their representation in

Congress restored.

270

As Morton noted, Congress had previously required

all of the ex-Confederate states to ratify the Fourteenth Amendment in

order to regain their status as full partners in the Union.

271

However, those

who opposed Morton’s motion argued that a requirement that the

designated states ratify the Fifteenth Amendment stood on a very different

footing.

First, while the provisions of the Fourteenth Amendment applied to

the entire nation, the amendment was quite clearly designed primarily to

address conditions in the ex-Confederate states themselves. By contrast,

all parties to the debate over the Fifteenth Amendment understood that a

ban on racial discrimination in voting rights would also have a significant

impact in a number of Northern states such as Indiana and Ohio, where

white voters had consistently rejected efforts to enfranchise the African-

Americans who formed a significant part of the population. Thus, for

example, Democratic Sen. Allan G. Thurman of Ohio complained that, by

coercing the named states into ratifying the Fifteenth Amendment, the

Morton proposal would in essence “force that . . . amendment . . . upon

Ohio, Indiana, and Illinois as well, whatever may be the opinion of [those]

states.”

272

In addition, some Republicans opposed the Morton proposal for other

reasons. While reaffirming their support for the Fifteenth Amendment in

principle, Republican Sens. Lyman Trumbull of Illinois and Roscoe

Conkling of New York argued that, since the Reconstruction Acts of 1867

and 1868 had established the conditions under which the ex-Confederate

states would be allowed to once again become full partners in the Union,

to add new conditions at this stage of the process would be unfair. Thus,

for example, Trumbull contended that to impose an additional requirement

would be “breaking faith on the part of the Government of the United

States with these people, who have been proceeding under our acts to do

those very things on the completion of which we have told them ‘You shall

269

. The Democracy and the Suffrage Amendment, N.Y. TIMES, Mar. 11,

1869, at 4.

270

. CONG. GLOBE, 41st Cong., 1st Sess. 654 (1869).

271

. Id.

272

. Id. at 655.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 447

be restored to your relations with the Union.’”

273

Similarly, Conkling

asserted that

as far as [ratification] is even by inadvertence associated with

unfair dealing, with a breach of faith, with an act which would be

deemed overreaching between man and man . . . so far as it is

associated with anything like that [ratification would be]

contaminated by a stigma and a distrust which ought not to rest

upon it.

274

Objections such as these left Morton unmoved. Noting that the

affected states had not yet accepted the conditions imposed by the statutes

that had already been passed, he insisted that “[t]here is no faith to be

violated, no promise to be taken back” and that “[i]t is our right to propose

as many conditions as we see fit.”

275

In addition, focusing on the actions

of the Democrats in Indiana, Morton asserted that “the Democratic party

desire[s] to keep [the issue of ratification] open as an element of political

success in the elections of 1870 and of 1872” and argued that

if we shall make the ratification of the [F]ifteenth [Amendment] a

condition of the reconstruction of [Virginia, Mississippi, and

Texas] these states will accept it at once . . . and then [the

amendment] will become a part of the Constitution [and] the

question will be taken out of our politics forever.

276

A majority of Morton’s Republican colleagues apparently found

arguments such as these to be persuasive. Although thirteen Republicans

joined the united Democrats in opposition, on April 9, 1869, the

amendment to the reconstruction bill passed by a vote of 30–20.

277

The

same day, the House of Representatives overwhelmingly voted to accept

the amendment as well.

278

Later that year, with the prospects for

ratification in doubt and despite the opposition of a majority of the

members of the Senate Judiciary Committee,

279

a similar requirement was

imposed on the state of Georgia.

280

273

. Id. at 654.

274

. Id.

275

. Id.

276

. Id.

277

. Id. at 656.

278

. Id. at 700.

279

. CONG. GLOBE, 41st Cong., 2d Sess. 166 (1869).

280

. Id. at 224, 293.

448 LOUISIANA LAW REVIEW [Vol. 82

Not surprisingly, those who opposed the Fifteenth Amendment

continued to insist that the imposition of these requirements unfairly

influenced the debate over ratification. For example, one Democratic

newspaper in Ohio complained that

[t]he Southern States are to be deprived of their rights under the

Constitution by the Radical majority in congress, unless they

adopt the negro suffrage amendment to the Federal Constitution,

and then they are to be allowed a representation in Congress, and

this is done to force negro suffrage on Ohio, Indiana and other

states, against the consent of the people.

281

Similarly, Democratic Sen. John P. Stockton of New Jersey asserted that

Southern states “are to be coerced to a vote that alters the Constitution of

the United States and of New Jersey fundamentally” and declared that “the

question of who votes and who does not sinks into insignificance

compared with the fundamental alteration of our system of government

which is proposed, and the fraud and violence by which our home born

liberties are to be wrested from us.”

282

Politicians in the states on which the conditions were imposed viewed

the situation quite differently. Because African-Americans had already

been enfranchised by virtue of the Reconstruction Acts in Virginia, Texas,

Mississippi, and Georgia, in those states the ratification of the Fifteenth

Amendment would not materially alter the situation, and compliance with

the condition was relatively costless. Thus, as one Southern newspaper

observed, since “universal suffrage is a fixed fact . . . in the South, the

people of [the relevant states] are perfectly willing to do anything now to

force negro suffrage on the North and the West.”

283

By the end of February

1870, each of those four states had approved the proposed constitutional

amendment, and the amendment had been ratified by a sufficient number

of states to become part of the Constitution.

284

281

. How Ohio Is To Be Made a Negro Voting State, NEWARK ADVOC. (Ohio),

Apr. 23, 1869, at 2.

282

. Tammany Hall on the Next Presidency, N.Y. HERALD, July 7, 1869,

quoted in DAILY ARK. GAZETTE (Little Rock), July 14, 1869, at 3.

283

. Political Affairs in Virginia, HINDS CNTY. GAZETTE (Raymond, Miss.),

May 12, 1869, at 2.

284

. GILLETTE, supra note 8, at 84–85 tbl.2.

2022] THE COMING OF THE FIFTEENTH AMENDMENT 449

CONCLUSION

The adoption of the Fifteenth Amendment brought with it the end of

the efforts of the Republican party to change the provisions of the

Constitution dealing with the institutions of government during the

Reconstruction era. The significance of these efforts can be evaluated from

a variety of different perspectives. Many Republicans would have

preferred an amendment that provided more sweeping protections for

voting rights. However, in terms of the structure of American federalism,

the adoption of even the simple prohibition on racial discrimination was

by any standard a watershed, which for the first time imposed an explicit

limitation on state authority to prescribe qualifications for participation in

both state and national elections. Thus, for example, although at the time

some feminists condemned Republicans for leaving the states free to

exclude women from voting, in later years supporters of women’s suffrage

were able to cite the Fifteenth Amendment as precedent in responding to

claims that the adoption of the Nineteenth Amendment would be

inconsistent with the idea of federalism embodied in the Constitution.

285

By contrast, an assessment of the substantive impact of the

amendment on the actual functioning of the political system depends

largely on the time frame on which one focuses. Together with sections

one and five of the Fourteenth Amendment, the Fifteenth Amendment

provided the constitutional predicate for the passage of a series of federal

statutes in the early 1870s that were designed to protect the rights of the

freed slaves.

286

These statutes in turn provided the legal framework that

helped facilitate the election of African-Americans to both state and

federal office in the late 19th century.

287

But as the enthusiasm of Northern

Republicans for the protection of African-American rights began to

recede, white Southerners regained control of the apparatus of their state

governments and increasingly began to adopt draconian measures

designed to prevent the freed slaves and their descendants from

participating in the political process.

While the withdrawal of federal troops from the South in the wake of

the disputed presidential election of 1876 is typically characterized as

285

. See Leser v. Garnett, 258 U.S. 130 (1922) (relying on analogy to the

Fifteenth Amendment to reject challenge to the validity of the Nineteenth

Amendment).

286

. The evolution of the enforcement acts is described in WANG, supra note

8, at 57–92.

287

. The uneven history of enforcement of the statutes in the period between

1872 and 1891 is described in id. at 93–216.

450 LOUISIANA LAW REVIEW [Vol. 82

signaling the end of Reconstruction,

288

African-Americans continued to

vote in substantial numbers in many parts of the South until considerably

later. Against this background, the dispute over the Federal Elections Bill

of 1890, which was known as the Lodge Force Bill, proved to be a crucial

turning point in the struggle over political power in the South. The Force

Bill—which was premised not on section two of the Fifteenth Amendment

itself, but rather on the authority over federal elections embodied in Article

I, Section 4—provided that, upon the request of a relatively small number

of citizens in any district, the local federal court would have been

authorized to appoint federal supervisors who would have been vested

with a variety of powers, including attending elections, inspecting

registration lists, verifying doubtful voter information, administering oaths

to challenged voters, stopping illegal aliens from voting, and certifying the

vote count. In addition, the bill would have empowered federal officials to

overturn the results of elections that state officials had certified.

The Force Bill was ultimately defeated after a fierce political struggle

in January 1891.

289

But even the abortive effort to provide actual political

power to African-Americans in the South created great concern among the

members of the Southern white establishment. In response, beginning with

the adoption of the Mississippi constitution of 1890, the Southern state

governments adopted a variety of constitutional and statutory measures

that, although race-neutral on their face, were avowedly designed to limit

the access of non-whites to the ballot. In a number of states, these measures

had a dramatic impact. For example, while more than 130,000 African-

Americans were registered to vote in Louisiana in 1896, by 1900 that

number had dropped to a mere 5,320.

290

Similarly, the state of Georgia

adopted draconian measures that had the effect of reducing the registration

of adult male African-Americans from 28.3% in 1904 to 4.3% in 1910.

291

In short, during the early 20th century, despite the passage of the Fifteenth

Amendment, most of the ex-Confederate states effectively excluded

African-Americans from political power.

The first real harbinger of change came with the 1944 decision in

Smith v. Allwright

292

where the Supreme Court relied on the Fifteenth

Amendment to strike down the use of the so-called “white primary” in the

state of Texas. However, the crucial breakthrough did not come until more

288

. See C. VANN WOODWARD, REUNION AND REACTION: THE COMPROMISE

OF 1877 AND THE END OF RECONSTRUCTION (1977).

289

. The complex maneuvering that led to the defeat of the Force Bill is

described in WANG, supra note 8, at 232–52.

290

. Id. at 260.

291

. Id.

292

. Smith v. Allwright, 321 U.S. 649 (1944).

2022] THE COMING OF THE FIFTEENTH AMENDMENT 451

than 20 years later when the enforcement clause of the amendment

provided the constitutional predicate for the passage of the Voting Rights

Act of 1965, which not only outlawed racially discriminatory practices

generally but also required a number of Southern states to have all changes

in voting procedures precleared by the federal government before the

changes could take effect.

293

The passage and implementation of the Voting Rights Act has had a

profound effect on the ability of African-Americans to participate in the

election of public officials, particularly in the Southern states.

294

Nonetheless, discrimination against minority races continues to be a

problem in this context.

295

The Fifteenth Amendment reminds us of the

need to be constantly vigilant in order to ensure that state laws that regulate

the political process treat members of all races equally.

293

. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as

amended in scattered sections of 52 U.S.C.).

294

. See Shelby Cnty. v. Holder, 570 U.S. 529, 547 (2013) (showing that

minority turnout in states subject to preclearance requirement has greatly

increased since the passage of the Voting Rights Act).

295

. See id.