State Action

SECTIONS 1 AND 2. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.


State Action.—Like section 1 of the Fourteenth, section 1 of the Fifteenth Amendment prohibits official denial of the rights therein guaranteed, giving rise to the “state action” doctrine.31 Nevertheless, the Supreme Court in two early cases seemed to be of the opinion that Congress could protect the rights against private deprivation, on the theory that Congress impliedly had power to protect the enjoyment of every right conferred by the Constitution against deprivation from any source.32 In James v. Bowman,33 however, the Court held that legislation based on the Fifteenth Amendment that attempted to prohibit private as well as official interference with the right to vote on racial grounds was unconstitutional. That interpretation was not questioned until 1941.34 But the Court’s interpretation of the “state action” requirement in cases brought under section 1 of the Fifteenth Amendment narrowed the requirement there and opened the possibility, when these decisions are considered with cases decided under the Fourteenth Amendment, that Congress is not limited to legislation directed to official discrimination.35

Thus, in Smith v. Allwright,36 the exclusion of African-Americans from political parties without the compulsion or sanction of state law was nonetheless held to violate the Fifteenth Amendment because political parties were so regulated otherwise as to be in effect agents of the state and thus subject to the Fifteenth Amendment; additionally, in one passage the Court suggested that the failure of the state to prevent the racial exclusion might be the act implicating the Amendment.37 Then, in Terry v. Adams,38 the political organization was not regulated by the state at all and selected its candidates for the Democratic primary election by its own processes; all eligible white voters in the jurisdiction were members of the organization but African-Americans were excluded. Nevertheless, the Court held that this exclusion violated the Fifteenth Amendment, although a majority of the Justices did not agree on a rationale for the holding. Four of them thought the case simply indistinguishable from Smith v. Allwright, and they therefore did not deal with the central issue.39 Justice Frankfurter thought the participation of local elected officials in the processes of the organization was sufficient to implicate state action.40 Three Justices thought that when a purportedly private organization is permitted by the state to assume the functions normally performed by an agency of the state, then that association is subject to federal constitutional restrictions,41 but this opinion also, in citing selected passages of Yarbrough and Reese and Justice Bradley’s circuit opinion in Cruikshank, appeared to be suggesting that the state action requirement is not indispensable.42 The 1957 Civil Rights Act43 included a provision prohibiting private action with intent to intimidate or coerce persons in respect of voting in federal elections and authorized the Attorney General to seek injunctive relief against such private actions regardless of the character of the election. The 1965 Voting Rights Act44 went further and prohibited and penalized private actions to intimidate voters in federal, state, or local elections. The Supreme Court has yet to consider the constitutionality of these sections.

31 See “State Action,” under the Fourteenth Amendment, supra. “The State . . . must mean not private citizens but those clothed with the authority and influence which official position affords. The application of the prohibition of the Fifteenth Amendment to ‘any State’ is translated by legal jargon to read ‘State action.’ This phrase gives rise to a false direction in that it implies some impressive machinery or deliberative conduct normally associated with what orators call a sovereign state. The vital requirement is State responsibility—that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which colored citizens are denied voting rights merely because they are colored.” Terry v. Adams, 345 U.S. 461, 473 (1953) (Justice Frankfurter concurring).

32 The idea was fully spelled out in Justice Bradley’s opinion on circuit in United States v. Cruikshank, 25 Fed. Cas. 707, 712, 713 (No. 14,897) (C.C.D. La. 1874). The Supreme Court’s decision in United States v. Cruikshank, 92 U.S. 542, 555–56 (1876), and United States v. Reese, 92 U.S. 214, 217–18 (1876), may be read to support the contention. Ex parte Yarbrough, 110 U.S. 651 (1884), involved a federal election and the assertion of congressional power to reach private interference with the right to vote in federal elections, but the Court went further to broadly state the power of Congress to protect the citizen in the exercise of rights conferred by the Constitution, among which was the right to be free from discrimination in voting protected by the Fifteenth Amendment. Id. at 665–66.

33 190 U.S. 127 (1903), holding unconstitutional Rev. Stat. § 5507, which was section 5 of the Enforcement Act of 1870, ch. 114, 16 Stat. 140.

34 E.g., United States v. Classic, 313 U.S. 299, 315 (1941); United States v. Williams, 341 U.S. 70, 77 (1951).

35 See “Congressional Definition of Fourteenth Amendment Rights,” supra.

36 321 U.S. 649 (1944).

37 “The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restrictions by any State because of race. This grant to the people of the opportunity for choice is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied.” 321 U.S. at 664.

38 345 U.S. 461 (1953).

39 345 U.S. at 477 (Justices Clark, Reed, and Jackson, and Chief Justice Vinson).

40 345 U.S. at 470.

41 345 U.S. at 462, 468–69, 470 (Justices Black, Douglas, and Burton).

42 345 U.S. at 466–68. Justice Minton understood Justice Black’s opinion to do away with the state action requirement. Id. at 485 (dissenting).

43 71 Stat. 637, 42 U.S.C. §§ 1971(b), 1971(c). In a suit to enjoin state officials from violating 42 U.S.C. § 1971(a), derived from Rev. Stat. 2004, applying to all elections, the defendants challenged the constitutionality of the law because it applied to private action as well as state. The Court held that inasmuch as the statute could constitutionally be applied to the defendants it would not hear their contention that as applied to others it would be void. United States v. Raines, 362 U.S. 17 (1960), disapproving the approach of United States v. Reese, 92 U.S. 214 (1876).

44 Pub. L. 89–110, §§ 11–12, 79 Stat. 443, 42 U.S.C. §§ 1973i, 1973j.