Federal Legislation

On March 30, 1870, the i5th amendment was officially declared ineffect. It provides:

The right of citizens of the United States to vote shall not be deniedor abridged by the United States or by any State on account of race,color, or previous condition of servitude.

Shortly thereafter Congress passed a law embodying that amendment'scommand: 1

All citizens of the United States who are otherwise qualified by law

to vote at any election by the people in any State, Territory, district,county, city, parish, township, school district, municipality, or otherterritorial subdivision, shall be entitled and allowed to vote at allsuch elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulationof any State or Territory, or by or under its authority, to the contrary notwithstanding.

While the Supreme Court has long since struck down much Reconstruction legislation as unconstitutional, this provision survives as section1971 (a) of title 42 of the United States Code, a cornerstone of Federallegislation to protect the right to vote.

But this section merely declared a right. It provided no legal remedy.And other relevant Reconstruction legislation has proved difficult toapply, or depends on private initiative. Until the passage of the CivilRights Act of 1957, therefore, the Federal Government could do littleto combat discriminatory denials of the right to vote. The 1957 act,and its successor act in 1960, opened the way to more direct and effectiveFederal action to protect the fundamental right of participation ingovernment.

For 70 years, the Federal Government relied almost solely on twosections of the U.S. Criminal Code to prevent discrimination in voting.Both were Reconstruction measures.

Section 241 of the U.S. Criminal Code penalizes conspiracies to"injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right . . . secured .. . by the Constitution orlaws of the United States. . . . " 2 This provision applies to actions byeither State officials or private persons that interfere with voting in Federal elections, 3 and apparently to discrimination by State officials in Stateand local elections as well. 4 The other criminal provision, now section242 of the United States Code, prohibits action "under color of law"2014

i.e., by State officials or persons acting in concert with them which interferes with "rights . . . secured or protected by the Constitution or lawsof the United States," including the right not to be discriminated againston grounds of race or color. 5

Section 241 was involved in the 1884 case °f Ex parte Yarbrough?

where the Supreme Court declared that the right to vote in Federalelections arose from the Federal Constitution, and was therefore subjectto protection by Federal legislation. This was true, said the Court,despite the fact that State laws prescribe the qualifications of electors.Both sections were involved in United States v. Classic? in 1941, wherethe Supreme Court first held that the guarantees of the Constitutioncover primary as well as general elections.

In 1939 Congress enacted, as part of the Hatch Act, another criminalprovision, protecting the right to vote: This provision sets penalties forwhoever intimidates, threatens...