“Legislatures represent people, not trees or acres…”[1] Chief Justice Earl Warren
I White Male Suffrage
The American colonies inherited property qualifications for voting that had been established in England at least as early in the fifteenth century.[2] Because of cheap land and tax administration, suffrage was far more widespread in practice in the colonies during the 18th century than in England. Before the Revolution, the prevailing political theory was influenced by Aristotle idea of a balance government, which held that tyranny will result if either the monarchical, the aristocratic, or the democratic principle dominated the others In the absence of secret ballot, voting by tenant, employees, or paupers was regarded as likely to lead to corruption or coercion, with a consequence magnification of the influence by the wealthy.
The Constitution of the United States does not regulate franchise. The only federal officials chosen by direct election under the Constitution are the members of the House of Representatives.[3] The Northwest Ordinance and other law governing territories imposed landowning requirements for voting. Difficulties with land titles and other practice problems quickly made property requirements a dead letter in much of the west. With the arrival of the nineteenth century, the idea of universal white manhood suffrage became ascendant. The Aristotelian view was opposed by a Puritan belief that for purposes of secular politics, people should be treated as if they were equal and, increasingly, by natural rights theories of political equality.
Religious test for voting and exclusion on the basis of status as a servant or employee (but not as a slave) were largely eliminated by the end of the revolutionary period.[4] In many places, the payment of tax was permitted as an alternative to satisfying property qualifications.[5] Service in the military, similarly, was increasingly accepted as an alternative to owing land or paying taxes, thereby extending the right to vote to a higher percentage of men.
The only true dramatic event in the early extension of suffrage occurred in Rhode Island[6]. In that state during the Jeffersonian period, the property qualifications did not prevent most adults males from voting, so there was a strong pressure to eliminate them. After the War of 1812, as industries began to develop and cities to grow, it became more apparent that the non-landowning working class could be composed of immigrants, largely Catholics. Resistance to suffrage reform became strong in rural areas, where Protestant farmers had no desire to share political powers with the newcomers. Pressure for a liberalize franchise grew, but was stoutly resisted by the rural interests who controlled the state Government. By the time of the Civil War, adult male suffrage was the rule in most of the states, with relatively minor exceptions.[7]
II The Betrayal of the 15th Amendment
In 1865-1866, the Republicans, uncertain if their electoral prospects, did little to promote voting rights for African Americans. The 14th Amendment, proposed in 1866 and ratified in 1868, made African Americans citizens and guaranteed “equal protections of the law.[8] In 1866, the Republican won a landslide victory and thus felt safe in ordering black suffrage in areas where doing so would not arouse opposition in their northern constituencies. In 1867, blacks were given franchise in the District of Columbia and in federal territories.[9] Ulysses Grant, the Republican Candidate and memorable Civil War general, was elected President in 1868.[10] The Republicans responded to their concerns by rushing the 15th amendment through the session of Congress in January and in February 1869. Accomplished with some difficulty, the final version of the 15th amendment was something like a compromise, falling short to its expectations.[11] As adopted, the 15th Amendment states the following:
“Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.”[12]
The 15th Amendment had the dual purpose of enfranchising African Americans in the northern states and reinforcing the right to vote in the South.[13] African Americans were elected to office in substantial states in 1872.[14] In 1877, Union soldiers were removed from the South as part of the settlement of the disputed presidential election of 1876. White support for disenfranchisement of African Americans came primarily from “black belt counties”[15] and from wealthier areas. Typical leaders in the disenfranchisement movement were wealthy, well-educated and from established families. White opposition to disenfranchisement came mostly from poorer and predominantly white areas, and from members of the Republican and other opposition parties. Their opposition to disenfranchisement may have been motivated by principle, but it certainly was motivated by recognition that their partisan and class interest had no hope of success without the support of black voters. Black themselves actively resisted disenfranchisement in both judicial and political arenas, though ultimately without success.
The following methods and devices were used in the southern states with the goal of the disenfranchisement of the African American Population:
1) Secret Ballots:[16] This method was introduced as a good government device to reduce voter corruption and preserve the integrity of the ballot box; the secret ballot box was also favored in the South (and perhaps in the North) as a device to prevent illiterates from voting. In the South, this had a detrimental effect on blacks, who had been denied education as slaves and were subject to inferior education during the Civil War. Elected officials could discriminatory provide assistance to white voters who needed it, while denying assistance to black voters.[17] Precinct officials gave no assistance to illiterate blacks, and the boxes could be moved around frequently during the day of the election, to confound any outside person who might seek to instruct black voters on which box was which.
2) Poll Tax: Georgia adopted a poll tax in 1877.[18] The poll tax was justified by their proponents as a device to disenfranchise blacks, but it also had the effect, and probably the intent, of lowering white turnout. The poll tax was a particularly severe obstacle in voting in some states, which requited an individual to pay not only the current year’s tax but also unpaired taxes from previous years. The 24th Amendment, added to the Constitution in 964, banned poll taxes in federal elections. Two years later, the Supreme Court in Harper v. Virginia State Board of Elections[19] ruled that the use of poll tax in any election violated the Equal Protection Clause.
3) Literacy Test: Were among the most important devices adopted at the disenfranchisement convention in the decades before and after the century. They were often accompanied by escape provisions, the best known as the “grandfather clause”, which waived the literacy test for persons who were eligible to vote or whose ancestors were eligible to vote on a date prior to the initial enfranchisement of African Americans. Grandfather clauses were declared unconstitutional in Guinn v. States[20], but the literacy test could be and were administered in a discriminatory manner against blacks.[21] In Lassiter v. Northampton County Elections[22] the Supreme Court held that a literacy test fairly applied, did not violate the Equal Protection Clause:
“Of course, a literacy test, fair on its face, may be employed to perpetuate that discrimination with the Fifteenth Amendment was designed to uproot. No such influence is charged here… The present requirement, applicable to all members of all races, is that the prospective voter <<be able to read and write any section of the Constitution of North Carolina in the English language.>> That seems to us to be one fair way of determining whether a person is a literate, not a calculated scheme to lay springs for the citizen. Certainly, we cannot condemn it on its face as a device unrelated” to the desire of the North Carolina to raise the standards for people of all races to cast the ballot.”
Literacy test in the South were not fairly applied. The Voting Rights Act of 1965 banned literacy tests in most of the Deep South. In South Carolina v. Katzenbach[23] the Supreme Court held that the literacy ban was a permissible exercise of Congress’s power to enforce the 15th Amendment, despite the fact that the literacy test itself was not unconstitutional. In 1970 some amendments were made to the Voting Rights Act banning literacy test nationwide. The Supreme Court held the nationwide literacy ban in Oregon v. Mitchell.[24]
4) Intimidation and Violence: The Supreme Court had the chance to combat the practices of white intimidation towards African Americans in Giles v. Harris[25] in which 5,000 blacks in Montgomery, Alabama complained that they had been unconstitutionally prevented from registering to vote despite satisfying all applicable requirements. Justice Holmes[26], writing for the Court, rejected this challenge on the ground that the Court did not wish to involve itself in Alabama unlawful activity and that any remedy the Court ordered will be ineffective:
“The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more that it has in the past, to enforce the political rights… The Court has no practical power to deal with the people of the state in the body. The bill imports that the great mas of the white population intends to keep the black from voting. To meet such intent something more than ordering the plaintiff name to be inscribe upon the list of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in state by officers of the court, it seems to us that all that plaintiff could get from equity would be an empty form. Apart from the damages to the individual, relief from a great political wrong. If done, as alleges, by the people of the state and the state itself, must be given by them or by the legislative and political department of the government of the United States.
III. Voting Rights for Women
The beginning of the American women’s right movement began in 1848 in a meeting in Seneca Falls, New York, organized by Elizabeth Cady Stanton and Lucretia Mott. The demand to the right of vote contained in the Declaration of Sentiments adopted at the Seneca Falls was regarded as radical. The founders of the women’s movement were abolitionists, and their call to the right to vote was motivated in part of the desire to win the right to participate more effectively in the movement to end slavery. Leaders of the movement worked actively during the Civil War helping the Union cause. Many of the women were disillusioned when, after the war, the Republican Party pushed for votes for blacks but not for women. Efforts to obtain judicial relief failed when the Supreme Court ruled that the Fourteenth Amendment did not prevent denying women the right to vote.[27] In 1890, two women’s suffrage groups merged to form the National Women Suffrage Association.[28] In 1890, Wyoming was admitted as the first state to allow full woman suffrage. Colorado, Utah, and Idaho followed by 1896, but it was not until 1910 that Washington became the next state to do so. After 1910 several more states joined, and New York doing so in 1917 became the turning point in the effort to obtain women’s suffrage nationwide.[29]
IV. Gerrymandering and contemporary disfranchisement: The future of democracy
The Supreme Court of the United States recently heard the arguments in Gil v. Whitford.[30] Does the Constitution Prohibits a State from Engaging in Extreme Partisan Gerrymandering in Drawing its Legislative Districts? That’s the main issue at stake in the recent case at the Supreme Court.
Gerrymandering is older than the republic, the first American gerrymandering occurred in early Pennsylvania in early eighteenth century.[31] Gerrymander was first used in 1812 when Governor Elbridge Gerry signed into law a redistribution plan particularly aimed to control one of Massachusetts district. Apparently, guests at a dinner party were lamenting the contours of that particular district, noting that it looked like a lizard or salamander, when one guest exclaimed that the district looked more like a “gerrymander.” Ever since, “gerrymander” has been used as an epithet to describe districts that are thought to have been drawn with an eye toward furthering various agendas.[32]
Justiciability: The Political Question Doctrine:
Article III, Section 2 states that the judicial power shall extend to all cases in law and equity arising under the Constitution and the laws of the United States. This is the “cases and controversies” limitation on the Supreme Court jurisdiction. The doctrine of justiciability finds support in Chief Justice Marshall statement in Marbury v. Madison[33] that the power of judicial review must be tempered by the Court’s duty to exercise its power only when it must. Consequently, the court can interpret a law so as to avoid having to render a decision on the law’s constitutionality, it should do so. These limitations exit to reduce the fear the Court, as an unelected body, will assert power in ways contrary to democratic theory. There are five major doctrines of justiciability: 1) standing; 2) the political question doctrine; 3) ripeness; 4) mootness; 5) prohibition against advisory opinions.
The political question doctrine declares that some disputes are subject solely to political resolution, not judicial resolution, thus making the question political. Marshall made this point in Marbury: “Questions, in their nature political, or which are, by the constitutions and laws, submitted to the executive can never be made in court. In 1842, the Supreme Court decided Luther v. Borden[34]. Luther arose out of the Dorr Rebellion in Rhode Island. Unlike the other states in the Union, Rhode Island had not adopted a constitution after independence, but operated under a charter dating from the colonial era. By the 1840s the right of white males to vote was substantially expanded in nearly all the states, although this had not yet occurred in Rhode Island. The limitation of the vote and the complaints of the town residents of under representation in the legislature, led some citizens, including Dorr, to craft a constitution providing for a greater suffrage. The existing government refused to recognize this constitution[35]. Luther v. Borden was a common law trespass action brought by the aptly named Martin Luther, one of Dorr’s supporters, to recover damages for the breaking and entering of his house by the sheriff, Borden. Borden claimed justification because he was following military orders after martial law was declared by the government. Luther offered evidence that this government was no longer in power after the adoption of the Dorr constitution by the people. The trial court rejected Luther’s evidence and Luther lost. The Court, per Chief Justice Taney, held the issue nonjusticiable. One reason for its conclusion was the absence of any guiding standards to judge which government was the rightful Rhode Island government.
In Colegrove v. Green[36], a plurality of the Court held nonjusticiable a challenge to the congressional districts in Illinois. The complainants argued that the district populations were uneven to such an extent that they were denied their right to vote. The plurality, in an opinion by Justice Felix Frankfurter, noted that fair representation in the House of Representatives was left by the Constitution to the House itself. The opinion concluded, “Courts ought not to enter this political ticket.” Everything changed in Baker v. Carr[37]. Pursuant to the state constitution, the Tennessee legislature was to be reapportioned regularly to ensure that the legislative representation was evenly appointed according to the population. However, the legislature had not been reapportioned since 1901. Plaintiff, citizens of Tennessee, claimed that the failure of the legislature to engage in the process of reapportionment violated the Equal Protection Clause of the Fourteenth Amendment. Plaintiff noted that the legislature had no incentive to reapportion itself and requested and injunction barring future elections base on the 1901 reapportionment. The Court held that the claims of political under representation were justiciable. The Court followed up on the implicit promise of Baker and later held that the Equal Protection Clause requires “one person, one vote.” Reynolds v. Sims, 379 U.S. 870 (1964). Reynolds concerned malapportionment of Alabama state legislature. As Chief Justice Earl Warren stated in Reynolds: “Legislature represent people, not trees or acres… {T}he Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Id. At 562. Thus, one consequence of Baker is that the federal courts routinely are asked to decide whether state legislative reapportionment meets equal protection principle set forth in Reynolds.
Gerrymandering and the Constitution: Gil v. Whitford
a- Introduction:
Up to now, the Supreme Court has declined to rule on cases alleging partisan gerrymandering, because the Court lacks a sufficiently determinate test to judge when a partisan redistricting plan goes too far. In other words, these cases raise a nonjusticiable political question. This case presents the Court with a test, however, and an example of extreme partisan gerrymandering. As a result, the case gives the Court an opportunity to reconsider whether it will hear partisan gerrymandering claims and, if so, how it will judge them
b-Issues:
- Do voters from just 11 state legislative districts have standing to challenge the entire Wisconsin Assembly map?
- Does the case raise a nonjusticiable political question?
- Did the plaintiffs articulate a sufficiently “limited and precise” standard for judging political gerrymanders?
- Does the plaintiffs’ partisan-gerrymandering claim fail because the map complies with traditional redistricting principles?
- Does it matter that the map locks in majority control of the Assembly, and, if so, should the Court remand the case to allow the parties to argue this point?
c- Facts:
In January 2011, the Wisconsin legislature began the task of drawing new state legislative boundaries based on results of the 2010 Census. Wisconsin Senate Majority Leader Scott Fitzgerald and Speaker of the Wisconsin Assembly Jeff Fitzgerald retained attorney Eric McLeod and a private law firm to assist with the effort. In April 2011, after they received Census data from the Legislative Technology Services Bureau, staff members from the Majority Leader’s and Speaker’s offices worked with a consultant and a political science professor to begin drafting the new map in a law firm office they called the “map room.”[38]
In fashioning the new legislative districts, the map-drawers endeavored to comply with the “one-person, one-vote” principle and the Voting Rights Act; they also considered traditional districting principles like compactness and contiguity. Politics was another factor. In particular, the map-drawers drew legislative districts such that Republicans could win a disproportionate number of seats in the Assembly as compared to their portion of the overall, statewide vote.
The legislature passed the map-drawers’ plan, and the governor signed it. The map was published as Wisconsin Act 43 on August 23, 2011. In the first election under Act 43, in 2012, Republicans won 60 out of 99 seats in the Assembly with just 48.6 % of the statewide vote. In the next election, in 2014, Republicans won 63 of the 99 seats with just 52 % of the vote.
Twelve Wisconsin voters, who resided in 11 legislative districts throughout the state, sued state officials in a three-judge federal district court, arguing that the Assembly map was an excessive political gerrymander in violation of the First and Fourteenth Amendments. The plaintiffs argued that the map-drawers used two gerrymandering techniques to ensure that Republicans would win a disproportionate number of Assembly seats. First, they claimed that the map-drawers “packed” a small number of districts by concentrating Democrats in those districts; this would ensure that Democrats would win in those few districts with an overwhelming majority. Next, they claimed that the map-drawers “cracked” Democratic populations among many other districts, so that Democrats would fall just short of a majority in each one of those many districts. The plaintiffs argued that these techniques resulted in “wasted” votes—those excess votes for a winning candidate in a packed district, and those votes for a losing candidate in a cracked district—and that the wasted votes for Democrats significantly outnumbered the wasted votes for Republicans. (The plaintiffs call the difference between Republican wasted votes and Democratic wasted votes the “efficiency gap.”)
The plaintiffs incorporated the efficiency gap into a proposed three-part test to determine when a partisan gerrymander is unconstitutional. First, plaintiffs would have to show that a state had an intent to gerrymander for partisan advantage. Second, plaintiffs would have to prove a partisan effect. (The plaintiffs here proposed that an efficiency gap greater than 7 percent should be presumptive unconstitutional.) Third, if the plaintiffs carried their burdens at the first and second steps, the state would have to show that the plan resulted from “legitimate state policy” or “the state’s underlying political geography” in order to avoid a conclusion that the map was unconstitutional.
The court adopted the basic framework of this test, but modified the second step slightly: it looked to both the efficiency gap and other evidence (including social science evidence) for the partisan effect. Applying the test, the court ruled that (1) the map was designed with discriminatory intent, (2) the map caused a “large and durable” discriminatory effect, and (3) there was no neutral way to explain this effect. The court enjoined the state from using Act 43 and ordered that it adopt a new plan by November 1, 2017. The Supreme Court stayed this order, however, and agreed to hear the case on the merits.
d- Case Analysis:
Do the Plaintiffs Have Standing to Sue?
The state argues that the plaintiffs lack standing and that the case should be dismissed. It says that the plaintiffs, who are individual voters in only 11 Assembly districts, have standing to challenge only the districts where they vote and not the entire Assembly map. The state claims that the plaintiffs have suffered a concrete and particularized harm (required for standing) only in the district where they live or vote and that they have not suffered a harm in other Assembly districts “on the theory that they want more Democrats for their Assembly or House member to caucus with.” The state says that this is consistent with standing requirements for plaintiffs who bring racial gerrymandering claims and that granting the plaintiffs’ standing in this case would perversely favor challenges to political gerrymandering over challenges to racial gerrymandering.
The plaintiffs counter that every partisan gerrymandering case before the Court has been a statewide challenge, and the Court has never suggested that the plaintiffs lacked standing in those earlier cases. Moreover, the plaintiffs say that their claim (and thus their harm) is “unquestionably statewide: the intentional, severe, durable, and unjustified dilution of Democratic votes throughout Wisconsin.” The plaintiffs contend that racial gerrymandering claims are different, because they allege that race was used in a district-specific way—in drawing one or more particular legislative districts—and because the harm in those cases involves racial classification (and not, as here, statewide voter dilution).
Does the Case Raise a Nonjusticiable Political Question?
The state argues that the case raises a nonjusticiable political question and that the case should be dismissed. The state says that a majority of justices in Vieth v. Jubelirer, 541 U.S. 267 (2004), “definitively concluded that such claims were nonjusticiable…or could eventually prove to be so.” The state claims that the courts have not been able to identify determinate legal standards for judging political gerrymanders and so should stay out of it (and instead leave it to the state legislatures). The state contends that the district court’s test is not sufficiently “comprehensive and neutral” and has no support in the history or practice of redistricting.
In response, the plaintiffs argue that the district court’s test is sufficiently “discernible and manageable” for the Court to hear the case. As to discernibly, the plaintiffs say that the test well identities when partisan gerrymandering dilutes the electoral influence of a group of voters (in violation of the Equal Protection Clause) and when it penalizes voters because of their political beliefs (in violation of the First Amendment). The plaintiffs claim further that the test is symmetrical with regard to partisan politics; that it is comprehensive, in that it can apply to any district plan; and that it is neutral insofar as it treats the political parties alike in converting their votes to legislative seats. The plaintiffs add that the district court’s test is “rooted in the Court’s partisan gerrymandering case law.”
As to manageability, the plaintiffs say that the test’s intent and justification prongs have already been applied in other redistricting situations, “without any apparent difficulty.” They claim that the effect prong is manageable, because courts can measure a gerrymander’s partisan effects with readily available social scientific techniques. The plaintiffs assert that the district court’s test will only ban “both parties’ most egregious gerrymanders,” so it will not overreach and will act as “a stalking horse for partisan interests.”
Did the Plaintiffs Articulate a Sufficiently “Limited and Precise” Standard?
The state argues that even if the plaintiffs have standing and even if the case is justiciable, the Court should dismiss the plaintiffs’ challenge because they have not stated a “limited and precise” legal standard. The state says that the plaintiffs’ proposed test for measuring unconstitutional partisan gerrymandering is a hodge- podge of unreliable social scientific measures that a plurality of the Court previously said, “failed to articulate a ‘reliable measure of fairness.’”
The state claims that the plaintiffs’ first-proposed test (giving greater weight to the efficiency gap) fares no better. The state says that this approach requires a nearly exact proportional increase in legislative seats for each increase in the vote—a “hyperproportionalism” that fails to account for other features of a state’s political landscape. In addition, it asserts that this approach “would find that one out of every three legislative maps drawn in the last 45 years has impermissible partisan effect” and would disproportionately “overlook ” plans drawn by Democrats.
The plaintiffs retort that the district court test is sufficiently limited and precise for the same reasons it argues that the test is judicially manageable and that the case therefore does not raise a political question.
Is Act 43 Valid Because It Complies with Traditional Redistricting Principles?
The state argues that the Court should uphold Act 43 because it complies with traditional redistricting principles, even if it also considered politics. The state says that a majority of justices in Vieth who would have heard a partisan gerrymandering claim would have required a plaintiff to show that the legislature did not comply with traditional neutral redistricting principles. The state says that the plaintiffs’ claim here should fail for that reason alone—because the state did incorporate traditional principles. As proof, the state notes that “Act 43’s results are generally comparable to those that obtained under the immediately prior court-drawn map.”
The plaintiffs argue that under Vieth noncompliance with traditional redistricting criteria is not an element of a partisan gerrymandering claim. Quoting the Vieth plurality, they say that “it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution.”
Should the Court Remand the Case?
Finally, the state argues that the district court wrongly concluded that Act 43 had an impermissible partisan effect because it locked in a Republican majority. The state says that this “entrenchment” approach is foreclosed by Vieth and that they did not have a sufficient opportunity to litigate the issue below. The state urges the Court to remand the case for further proceedings if it adopts an entrenchment approach.
The plaintiffs respond that the Court should not remand for further proceedings on entrenchment, because the parties already had an opportunity to argue the issue. “From the very beginning of the case, both Appellees and the district court made clear their emphasis on the durability of a party’s advantage.”
e-Case Importance:
It’s hard to overstate the potential significance of this case, especially given today’s political climate. That’s because states are responsible for drawing their own legislative maps and the boundaries for their congressional districts (usually every ten years, after the Decennial Census results come out), and most states draw those lines based at least in part on politics. (Thirty-seven states draw their districts in the state legislature; the others use some form of an independent or political commission.) Up until now, the Court has declined to intervene. But if the Court changes it tacks, this could substantially alter the states’ political calculus and even upend their practices, depending on how the Court would rule.
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[1] Reynold v. Sims, 379 U.S. 870 (1964).
[2] British law excluded women, Catholics, Jews, aliens, and servants from franchise.
[3] Article 1, Section 2 of the Constitution states: “the Electors in each State shall have the qualifications requisite for the Electors of the most numerous Branch of the State Legislature. What those qualifications were to be were entirely up to the states. The 17th Amendment, providing for direct elections of the Senators, contains a virtually identical clause.
[4] Rhode Island being the significant exception.
[5] The poll tax later became a prominent device for denying the vote to blacks and poor whites in the South, in the 18th century it was a liberating device that opened the franchise to persons whose wealth did not take the form of land.
[6] In 1841, a group called the Rhode Island Suffrage Association, under the leadership of Thomas Dorr, called for a constitutional convention, delegates to which would be elected by white universal suffrage. Dorr’s convention competed with a constitutional convention sponsored by the state government
[7] Limited voting by women was permitted until 1807, the most universal rule restricted voting to men.
[8] It did not expressly prohibit voting discrimination, though it reduced the representation in Congress of States that denied voting rights to male inhabitants 21 and over.
[9] The Reconstruction Act of 2867 require the blacks be allowed to vote in southern states as condition of readmission.
[10] The margin with democrats in many norther states was very closed. Republicans began to fear that some black voters in the South were in danger of being won over by the Democrats.
[11] Some had hope that the federal constitution would imposed a universal right to vote, universal mal suffrage and bar literacy and property test.
[12] U.S. Const. amend. XV; Ratification by the requisite number of states was completed within thirteen months, but only after considerable uncertainty. Ratification was assisted by legislation requiring Georgia, Mississippi, Texas, and Virginia to ratify the 15th Amendment as a condition of readmission to the Union.
[13] The first purpose was successfully accomplished and the second was accomplished too.
[14] Despite the 15th amendment, a disastrous disenfranchisement was going to happen in the South.
[15] Those especially large African American population.
[16] Can we say that most the Americans today are sufficiently literate that the secret ballot is not a major barrier to voting?; See Voting Rights Act Section 208, 52 U.S.S. Section 10508 (amendments made to the Voting Rights Act mandating the help of any voter who needs assistance because of blindness, disability or illiteracy is entitled to receive it from a person of the voter’s choice).
[17] In South Carolina and Florida, the “eight box” device were used, for similar purposes and with the same effects.
[18] Southern states did not follow until the 1890’s, but by 1904 all the former states of the Confederacy had adopted a poll tax.
[19] 383 U.S. 663 (1966).
[20] 238 U.S. 347 (1915).
[21] By the late 1950s and 1960s, discriminatory literacy tests were the most important devices for restricting voting of African American in the South.
[22] 360 U.S. 45 (1959).
[23] 383 U.S. 301 (1966).
[24] 400 U.S. 112 (1970).
[25] 189 U.S. 475 (1903).
[26] See David Luban, Justice Holmes and the Metaphysics of Judicial Restraint, 44 Duke Law Journal 449, 515 (1994).
[27] Minor v. Happersett, 88 U.S. 162 (1875)
[28] By this time several states allowed women to vote in school and municipal elections.
[29] By this time, enough representatives had voting female constituents to provide impetus to the approval by Congress of the 19th Amendment in 1919. The amendment was ratified by the 36th state and became part of the Constitution in August 1920.
[31] Larry Alexander, Saikrishna B. Prakash, Temptest in and Empty Teapot: Why the Constitution doesn’t regulate gerrymandering, 50 Wm. & Mary L. Rev. 1, William and Mary Law Review, October 2008.
[32] Id.
[33] 5 U.S. 137, (1803).
[34] 7 How 1, (1942).
[35] A latter constitution expanding suffrage was adopted in 1843.
[36] 328 U.S. 549 (1926).
[37] 369 U.S. 186 (1962).
[38] The courts drew the then-existing map, based on the 2000 Census, and the immediately preceding map, based on the 1990 Census, because the politically divided state government was unable to pass redistricting plans of its own. But in 2010, for the irst time in over 40 years, Republicans controlled both houses of the state legislature and the governor’s ofice. This gave promise that the government could pass a plan without the involvement of the courts.
Puerto Rico Constitution Center 