The origins of civil rights in America.

• Author: White, G. Edward
• Position: III. The Judicial Fashioning of Enforcement Rules for Civil Rights Cases B. United States v. Reese through Conclusion: A Revised Narrative of the Origins of Civil Rights, with footnotes, p. 787-816

2. United States v. Reese

   In 1876, the Supreme Court reviewed Bradley's decision in Cruikshank and a companion case where officials in Lexington, Kentucky, had refused to count the vote of an African American, also retaining the concept of state neglect, as well as insisting that federal prosecutions under the Fifteenth Amendment or the Civil Rights Act of 1866 could only be brought if a racial motive was asserted. The companion case, United States v. Reese, (110) has, like Cruikshank, been treated as evidence of the Court's hostility to Reconstruction because "state action" was clearly involved and the Court dismissed the indictment. (111)

   But Reese, like Cruikshank, was based on the Court's understanding that racial animus was required where the federal government was seeking to penalize violations of Fifteenth Amendment voting rights. In Cruikshank no racial animus had been shown. In Reese it could be presumed because the prospective voter was black, but an 1874 codification of the Enforcement Act of 1870, on which the federal prosecution was based, had failed to include language prohibiting only those denials of voting made "on account of race, color, or previous condition of servitude." (112) The sections under which the defendants in Reese had been indicted were thus unconstitutionally broad.

   Two passages in Chief Justice Morrison Waite's opinion for the Court in Reese demonstrated that the Court had entertained each of Bradley's suggestions for the federal enforcement of voting rights. (113) One, referring to the failure of the indictment in Reese to allege racial animus, stated, "It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude, that Congress can interfere, and provide for its punishment." (114) Although the passage was chiefly directed toward disposing of the indictment, it contained all of the elements of the Court's jurisprudence of federal voting rights cases in the South. The "right" at stake was that of not having one's voting rights in a municipal election discriminated against on the basis of race, a Fifteenth Amendment right. Federal intervention was triggered by the "wrongful" refusal of access to voting. That refusal could be the result of the action of state officials (as in Reese) or private individuals (as in Cruikshank). It also could be the result of inaction on the part of state officials: state neglect. Neither official action nor intentional conduct was necessary to trigger federal intervention.

   In addition, Waite said that "[t]he effect of art. 1, sect. 4, of the Constitution, in respect to election for senators and representatives, is not now under consideration." (115) That provision would play a role in the Court's subsequent voting rights cases. It was not relevant in Reese because that case involved a municipal election, and the article pertained to national elections. (116) But the Clause gave Congress the power to make "regulations" for those elections, including the "manner" of holding them, and it did not require a showing of racial animus to be enforced. So it appeared to be a basis for the positioning of federal officials to uphold African American voting rights in the South.

   Two months before the 1876 presidential election, Attorney General Alphonso Taft issued a circular deploying Federal Marshals to several Southern states to enforce "the peace of the United States" in federal elections. He based his authority on Article I, Section 4, and noted that in the Reese case the Court had indicated that it was not considering that provision. Reese, Taft said, "arose upon an election of State officers, only, and this order relates to the election of Federal officers, only." (117)

   The above actions by the Court and the Grant administration demonstrate that without knowing the doctrinal setting of Court decisions in the years immediately following the passage of the Civil Rights Act of 1866 and the Fourteenth and Fifteenth Amendments, it is easy to gain a false impression of those decisions. Distinctions such as that between secured and created rights, or between ordinary crimes and the actions specially sanctioned by the Fourteenth and Fifteenth Amendments, were crucial for Justices who wanted to acknowledge the federal government's power to enforce the Amendments' provisions but did not want to radically disturb antebellum understandings of the relationship between state and federal powers.

   The differential treatment of violations of voting rights in state and federal elections captured those concerns. Where state elections were concerned, as in Cruikshank and Reese, the power of the federal government to oversee the conduct of state officials and private individuals was limited to actions motivated by racial animus (or by the disinclination of state officials to correct private actions of that sort). To allow the federal government to enforce voting rights without evidence that those rights had been restricted because of racial animus was to invite undue interference with state prerogatives. But no such concern was present in federal elections. Here, the rights were created rights, which extended to all voters, so the federal government's supervisory power need not be limited to instances of racial discrimination. Stationing federal marshals in Southern states to regulate the process of federal elections was not an unwarranted extension of federal power. (118)

3. Federal Voting Rights Cases, 1877-1884

   Brandwein has also shown that three cases decided between 1877 and 1884 can be seen as illustrating the continuing vitality, in those years, of the doctrinal guideposts first introduced by Bradley in his circuit court opinion in Cruikshank. (119) The first decision was a circuit opinion by Waite in United States v. Butler. (120) In September 1876, members of "rifle clubs" in Aiken County, South Carolina, sought to intimidate African Americans from participating in forthcoming elections by besieging and shooting them. In a riot near the town of Ellenton, many African Americans were killed, and some retaliated by killing whites. Federal troops were dispatched to the area, and twelve rifle club members were arrested, including Andrew Pickens Butler, a former colonel in the Confederate army.

   The federal government, pursuing the lines laid out in Taft's circular, brought an indictment against Butler and the others based on two theories. One was under Article I, Section 4; the other under the Fifteenth Amendment and the Enforcement Act of 1870. In his charge to the jury, Waite followed the Cruikshank rules for federal enforcement of civil rights. For the three counts under Article I, Section 4, Waite made it clear that the federal government had a general power to police federal elections and that no racial animus on the part of those interfering with them needed to be shown. For the two counts under the Fifteenth Amendment, Waite concluded that the "controlling element" to make out a successful indictment was a showing that those indicted had conspired to deprive African Americans of the opportunity to vote on the basis of their race. (121)

   In the second case, Ex parte Siebold, (122) the Supreme Court relied on Article I, Section 4 to secure the convictions of five Maryland election officials who stuffed ballot boxes and allowed others to be destroyed in a national election. They were charged under election laws that called for the prosecution of state officials who refused to perform duties in national elections or interfered with the duties of federal officials. They sought a writ of habeas corpus after being imprisoned on the ground that keeping the peace was a duty reserved for state officials. The Court, in an opinion written by Bradley, held that the federal government had a power to police national elections and could compel state officials to assist federal officials in that task. The election laws sanctioning state officials for not cooperating in the policing of federal elections were valid implementations of the Times, Places, and Manner Clause of Article I, Section 4. (123)

   The third case, Ex parte Yarbrough, (124) involved another effort to interfere with voting by African Americans in a federal election. Five members of the Klu Klux Klan beat a Georgia black voter. Indictments were brought under the Fifteenth Amendment and Article I, Section 4. A unanimous Supreme Court upheld the indictments against arguments that state action was necessary to convict under the Fifteenth Amendment and that the right to vote for a member of Congress was governed by state law. Justice Miller explained the Court's rationale:

   The reference to cases in this court in which the power of congress under the first section of the fourteenth amendment has been held to relate alone to acts done under state authority can afford petitioners no aid in the present case.... [A]cts which are mere invasions of private rights [and] have no sanction in the statutes of a state, or ... are not committed by any one exercising its authority, are [normally] not within the scope of that amendment, [but] it is quite a different matter when congress undertakes to protect the citizen in the exercise of rights conferred by the constitution of the United States.... (125) Violations of "secured" rights thus required state action under the Fourteenth and Fifteenth Amendments, but not violations of "conferred" rights, and, as Miller explained, by protecting African Americans against discrimination in voting "whenever the right to vote may be granted to others," the Fifteenth Amendment "substantially conferred] on the negro the right to vote, and Congress has the power to protect and enforce that right." (126) Moreover, the right to vote for a member of Congress was not dependent on state law, as in the case of voting rights generally. It was "created by the Constitution," and thus the federal government had plenary power to endorse it...