South Carolina v. Katzenbach (1966)
Introduction
The passage of the Voting Rights Act of 1965 was a hallmark achievement of the Civil Rights Movement. At its center was an ingenious and novel, but constitutionally dubious, stipulation subjecting southern states with a history of racial discrimination to federal approval before they could implement new election laws. The Supreme Court’s full endorsement of the law in South Carolina v. Katzenbach swept away the constitutional objections of southern states. It signaled that states rights arguments would find little purchase with the Court and Congress was free to act aggressively in rooting out racist practices in the south. Katzenbach marked a pivotal shift in elevating federal oversight of elections and swinging the balance in the enforcement of civil rights and election law toward Congress.
The Historical Context
The Fifteenth Amendment, the last of the post-Civil War Reconstruction Amendments to be enacted, was ratified in 1870, declaring that “[t]he 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.” During Reconstruction, the rights of former slaves were protected by a federal military presence in the south, resulting in robust Black political participation and the election of many former slaves to public office. With the withdrawal of federal troops in 1876, Reconstruction collapsed and with it, meaningful political rights for Blacks in the south.
Once beyond the policies of Reconstruction, the former confederate states undertook to erect legal and social barriers to Black voting that quickly undid the gains of Reconstruction and effectively eliminated Black political participation in the south for much of the next century. In the late 1800s, widespread electoral fraud and violence was wielded to suppress Black voting. Legalized disenfranchisement followed, as Jim Crow spread across the south. Voting restrictions included Whites-only primaries, the selective use of poll taxes and literacy tests, and outright physical intimidation at the polls. Various tests were administered unequally between Blacks and poor Whites, with alternate tests prescribed in such a way as to ensure that white illiterates would not be deprived of the franchise. Grandfather clauses, property qualifications, “good character” tests, and “comprehension” tests were sufficiently vague and subjective as to invite open abuse in the hands of racist southern voting officials. Blacks were obliged to obtain vouchers from registered voters, a virtual impossibility where no other Blacks were on the voting rolls. The Supreme Court in the early decades of the 1900s largely allowed such practices, finding it beyond the remedial powers of the judiciary to force states to protect racial minorities’ right to vote.
With the emergence of the Civil Rights Movement in the 1930s and ‘40s, Congress and the Court began to devote their energies to combatting discriminatory voting practices. In Smith v. Allwright (1944), the Court invalidated the practice of white primary elections. It struck down “understanding tests” (Louisiana v. U.S. 1965), eliminated poll taxes as a requirement to vote in state elections (Harper v. Virginia State Board of Elections 1966) and prohibited states’ making voting on certain matters contingent on ownership or rental of real property (Kramer v. Union Free School District 1969). For its part, Congress passed a relatively tepid voting rights bill in 1957. But the Act did establish a Civil Rights Division of the Justice Department and, along with the Civil Rights Act of 1960, authorized the bringing of lawsuits to prosecute alleged denials of the vote based upon on race. Between 1957 and 1964, the Civil Rights Division brought over 70 lawsuits targeting racially discriminatory practices. But the strategy of case-by-case litigation proved largely ineffectual. Lawsuits were laborious and time consuming, and ran into constant resistance among local election officials and even southern federal judges who opposed Black suffrage. Cases finally won in court proved largely pyrrhic, granting remedies that were easily skirted, blocked or delayed. The litigation strategy produced miniscule increases in Black registration in the years preceding the Voting Rights Act of 1965 (VRA). As of 1964, Black registration rates were only 19% in Alabama and 6% in Mississippi, some 50% lower than White voter registration in those states. Overall pre-VRA differences between White and Black voter registration ranged from 22% in Virginia to 50% in Alabama and Louisiana to 63% in Mississippi. On average registration among Whites in the southern states ran roughly 50 percentage points or more ahead of Black registration.
The Passage of the Voting Rights Act of 1965
The passage of the Voting Rights Act of 1965 was a landmark of American civil rights laws. It permanently banned literacy tests and other practices that had been employed to keep Blacks from voting. It empowered the Attorney General to appoint federal officials to register minorities where discriminatory practices had previously been used or where registration rates were notoriously low. Sections 4 and 5 of the law created a new and innovative path around the tedious, ineffectual case-by-case litigation process. That coverage and preclearance process was the law’s most noteworthy feature, requiring federal approval for all manner of election administration and voting changes in certain specified jurisdictions. Its coverage provisions identified those regions of the country with a history of voting rights discrimination. Included under the “coverage formula” were those that, first, employed a prohibited, discriminatory “test or device” as a prerequisite to voting and, second, had less than 50% of their voting age population either registered to vote or having actually voted in the 1964 presidential elections. Seven states (Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina and Virginia) fell within the coverage formula, along with parts of four other states (Arizona, Hawaii, Idaho, and North Carolina).
Those preclearance section prohibited covered states and jurisdictions from implementing any changes in their election procedures without the prior approval of the U.S. Justice Department or alternatively a three-judge federal district court in Washington, D.C. That condition admittedly had a negative impact on the sovereignty of the covered states. While those not covered were free to alter their electoral systems, the covered states could not do so without first obtaining federal approval. South Carolina quickly challenged the law, claiming that it unconstitutionally encroached upon the states’ prerogatives in the realm of election administration, and that selective application to the covered jurisdictions violated the principle of equal federal treatment of states. The Supreme Court granted original jurisdiction in the case, with a handful of other southern states joining with South Carolina. Some twenty northern and western states files briefs supporting the VRA. On March 7, 1966, the Court announced its decision upholding the constitutionality of the Act.
The Majority Opinion
Chief Justice Earl Warren wrote on behalf of the eight-member majority, with Justice Black writing a sole partial dissent. The majority opinion opened with a lengthy review of the long history of practices employed by southern states to prevent Blacks from voting. Based upon the “voluminous legislative history” of the VRA, Warren stated that “Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” Given the failure of conventional remedies to improve Black participation, Congress rightly opted for “sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.” Notwithstanding the substantial efforts to enforce the Fifteenth Amendment through litigation, Warren noted that there persisted a “widespread pattern or practice” of discriminatory application of voting qualifications throughout the south.
South Carolina contended that only the judiciary had the authority to strike down state voting statutes and procedures. Warren responded by citing the Fifteenth Amendment language authorizing Congress to “enforce [the amendment] by appropriate legislation,” making Congress primarily responsible for implementing Fifteenth Amendment voting. He found it beyond question that “Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.” Warren acknowledged that making new voting regulations contingent upon review by the Justice Department was an uncommon exercise of Congress’s power. But he characterized the “ground rules” around the Fifteenth Amendment as pointing to “one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” In evaluating Congress’s use of its remedial power, Warren cited the basic test for Congress’s express power with relation to those reserved to the states, invoking Chief Justice Marshall’s classic formulation from McCulloch v. Maryland: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Warren upheld the preclearance requirements over South Carolina’s objection that “fashioning specific remedies or of applying them to particular localities” was necessarily to be left to the courts. Preclearance was a legitimate response to Congress’s finding that “case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting . . . [or to] overcome the obstructionist tactics” of southern states. Given nearly a century of “systematic resistance to the Fifteenth Amendment,” it was well within Congress’s discretion to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
Congress’s choosing to confine its remedies to a certain number of states and political subdivisions likewise was a permissible method of dealing with the problem in those “geographic areas where . . . substantial voting discrimination presently occurs.” Warren found that the doctrine of the equality of States only applied “to the terms upon which States are admitted to the Union” and not to remedies for local evils which have since arisen. Warren closed by lauding Congress for responding to “a century of widespread resistance to the Fifteenth Amendment” by marshalling “an array of potent weapons against the evil” of racial discrimination. He anticipated that “millions of non-white Americans will now be able to participate for the first time on an equal basis in the government under which they live.”
Justice Black’s Partial Dissent
Justice Black joined the Court in upholding Congress’s power to ban literacy tests and other discriminatory state-imposed voting qualifications. But Black took issue with the pre-clearance formula of the VRA, finding it constitutionally flawed on two grounds. First it failed to satisfy the justiciability requirement of an actual “case or controversy.” He could not accept that “a justiciable controversy can arise in the constitutional sense” from a U.S. government official’s determination in advance of “what legislative provisions a State may enact or what constitutional amendments it may adopt.” That was a “far cry from the traditional constitutional notion of a case or controversy . . .” That a State had to obtain federal approval of a proposed law smacked “precisely the type of advisory opinion our Constitution forbids.”
Black’s second, more fundamental, objection was that sections 4 and 5 obliterated foundational principles of federalism. Barring certain states from passing laws or constitutional amendments without first “being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.” Black insisted that the basic distinction between the central government’s limited powers and the remainder reserved to the states meant at the very least that “the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them.” Likening states under the pre-clearance mechanism to “conquered provinces,” Black found such a “radical degradation of state power” offensive to traditional understandings of the Constitution. It came “dangerously near to wiping the States out as useful and effective units in the government of our country,” something Black could not countenance.
The Impact of Katzenbach and the VRA
The Court’s ruling in Katzenbach gave the green light to the VRA, allowing it to move forward with full force. On strictly empirical grounds, there was an immediate and substantial impact on the rates of political participation among Black voters, with nearly a million additional Black voters registering in the two years following the decision. Recall that the gap between White and Black voter registration numbers prior to Katzenbach in the covered jurisdictions hovered between 40-50%. Within two years, that figure had shrunk by half. By the mid-1970s, the disparity in registration had dropped to single digits. The VRA is widely regarded as one of the most, if not the most, successful civil rights measure in our country’s history, in large part due to the Court’s legitimating stamp of approval.
The Court validated what was undeniably a novel legislative policy that pushed the boundaries on federal involvement in states’ election prerogatives. In so doing, it signaled to Congress that it was empowered to act aggressively to attack racial discrimination, that it was not constrained by claims of states’ unhindered control of their election laws. It was difficult to imagine a broader act of legitimation than the Court’s endorsement of Congress’s Fifteenth Amendment enforcement authority in the form of the extraordinary coverage/preclearance remedy. It expanded Congress’s power in an area long understood to be the turf of the states. The case marked a pivotal shift in elevating federal oversight of elections and swinging the balance in the enforcement of civil rights and election law toward Congress.
A Postscript: Shelby County v. Holder (2013) – A “Gutting” of the VRA? Or A Mark of Racial Progress?
Since the inception of the VRA, Congress repeatedly reauthorized it with little or no alteration, most recently in 2006. The preclearance mechanism stood until 2013, when the Court in Shelby County v. Holder struck down the coverage provision by a 5-4 margin. In doing so, the Court revisited the demands of federalism and the residual sovereignty retained by states in the realm of elections. Noting the fundamental principle of equal sovereignty among states – that states be treated evenhandedly by the federal government – the Court contemplated whether contemporary political realities still warranted the extraordinary remedies embodied in the coverage/preclearance provisions. Opining that “current burdens require current justifications,” the Court determined that Congress, by relying on 1972 voting data when it reauthorized the statute in 2006, had failed to establish that there still existed a rational basis for the coverage provision as an appropriate exercise of Congress’s enforcement power.
Ironically, the basis for Shelby County’s challenge to the pre-clearance mechanism was that it has been so successful that the facts justifying it in the first place no longer existed. In short, its success had rendered it obsolete. Indeed, the VRA had undeniably worked remarkably well. Fifty years after the enactment of the Voting Rights Act, the disparities in the rates of registration between white and black voters had essentially disappeared. In several of the covered states, Blacks voted at higher rates in the 2004 elections than did Whites. The country had elected a black president, twice. Greater percentages of Black voters had cast ballots in the 2012 elections than had Whites. Mississippi, one of the covered states, was represented by more Black officials than any other state in the country. Voter turnout and registration numbers for minorities in recent elections were as favorable, if not moreso, in southern states as in northern states. The formulas for pre-clearance seemed to have lost their relevance in 21st Century America. At the very least, reliance upon thirty-five year-old data failed to capture such significant shifts in voting practices in America.
The reactions to Shelby County very much depended upon one’s perception of the status of racialized electoral politics in 21st Century America. Those who see the country as continuing to fall short of equal voting participation across races were quick to accuse the Court of “dismantling” the VRA and “gutting” civil rights for minority voters. Shelby did not affect the substance of VRA and its ban on racial and voting discrimination, nor did it eliminate other tools for combating racial voting discrimination. Instead it returned civil rights cases to their traditional posture, by shifting the burden to those challenging voting practices to establish discrimination.
Shelby raised a number of important questions. Did it represent an exercise in conservative judicial activism, given that the Court overruled congressional action in an area in which Congress seemed better situated to make such political determinations? How much deference was owed Congress by the Court in accepting at face value the factual bases upon which VRA reauthorization rested? And where did the country honestly stand with respect to race as a determinant in voting practices and the quality of political representation that follows from it? To what extent does racially polarized voting and political participation continue to shape, and perhaps undermine, “fair and effective representation” for Black citizens? Ultimately the Shelby decision is perhaps best be understood as a straightforward application of the Katzenbach finding that congressional action requires a rational basis. From this angle, Congress’s failure to update the empirical case for the racially discriminatory impact of voting laws that warranted the extraordinary remedies upheld in Katzenbach was critical. One thing is clear in the wake of the recent 2026 Louisiana v. Callais decision which struck a likely fatal blow to race-based redistricting; extraordinary race-specific remedies designed to advance equality are unlikely to be looked upon kindly by the current Court. It seems committed to pursuing a color-blind approach to equal rights, following Chief Justice Roberts’ lead when he admonished that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (Parents Involved in Community Schools v. Seattle School District No. 1 2007)
