March 20, 1962 (5)

The Senate resumed the consideration of the - motion of the Senator from Montana [Mr . MANSFIELD l to proceed to the consideration of the joint resolution (S.J. Res. 29) providing for the establishing of the former dwelling house of Alexander Hamilton as a national monument. ·

Mr. JOHNSTON. Mr. President, in the beginning, I think it would be well to set forth what the Senate is debating at this time. Many persons who are listening to the proceedings do not realize exactly what the situation is.

The Senate will have before it a pro­ - posed amendment- to the Constitution of the United States. I shall read the entire amendment, since it is very short:

ARTICLE-

SECTION 1. The right of citizens of the United States to vote in any primary or other election for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax or to meet any property qualification.

SEc. 2. Nothing in this article shall be construed to invalidate any provision of law denying the right to vote to paupers or persons supported at public expense or by charitable institutions.

SEc. 3. The Congress shall have power to enforce this article by appropriate legislation.

Mr. President, at the beginning of my remarks I want it clearly understood that the position I take in regard to the pending question is not predicated on a desire to protect the State of South Carolina or to prevent a change in the South Carolina law, for at the present time South Carolina does not have a poll tax requirement. Today, only five of the States have laws which require the payment of a poll tax before a citizen can vote. Therefore I want it distinctly undestood that my reason for opposing this measure is the fundamental belief on my part that the States have the right to determine the qualifications and requirements for voting, in accordance with the Constitution of the United States as it now stands. Furthermore, I believe that if this measure had been proposed at the Constitutional Convention in Philadelphia, and if at that time it had been written into the Constitution, it would have been impossible to get a sufficient number of the States to ratify the Constitution. I make that statement for the reason that it will be remembered that at the time when the U.S. Constitution was being written, there was a great fight over the question of the power of the States versus the power of the Federal Government. One very large group thought that entirely too many States rights would be given to the Federal Government, with the result that the Federal Government would be very large and almost all powerful. For that reason, several of the States hesitated to ratify the U.S. Constitution. So, Mr. President, it is my position that we should not begin to whittle away the rights the States have, as regards stating what shall be the qualifications of voters. For that reason, Mr. President, I rise to speak in opposition to the proposed constitutional amendment submitted by the senior Senator from Florida [Mr. HoLLAND], which would set into motion the incorporation into the Constitution of the United States of an amendment declaring in essence, that payment of State poll taxes levied by States would become a Federal matter. Such an amendment to the Constitution would make it unconstitutional for a State to require the payment of poll tax as a prerequisite to voting.

The fundamental basis upon which I build my opposition to this proposal is that poll tax legislation is a State mat- _ ter, and is a matter in which the Federal Government has no business. By "Federal Government," I mean the Congress of the United States, the President of the United States, and all of his officers. In several court rulings it has been clearlY . declared that the States constitutionally have this authority. The latest decision was rendered by the U.S. Supreme Court on May 28, 1951, in the case of Butler v. Thompson, 341 U.S., beginning at page 937.

In addition to opposing the amendment per se, I am equally opposed to the methods being used by the proponents of this legislation. Earlier this year the Senate roundly defeated a proposal to circumvent the normal procedures of the Senate; and I had hoped that the procedural issue was dead for at least the rest of this year. The constant hammerings away at the procedural foundations of the Senate endanger the smooth function of this body. The more the Senate votes to bypass committee procedures and normal routes for legislation, the more confused we shall become. Our dignity will disappear with the advent of such disorder. Bad procedures make for bad legislation, and bad legislation makes for bad government. To say the least, the U.S. Senate will be playing the part of a bully if 45 States move to impose upon a minority-5 States-their views on the poll tax by constitutional amendment. Certainly the Senate should have the benefit of a committee report, both majority and minority, containing the legal precedents involved in this proposal.

It is no secret that long ago the State of South Carolina abolished the poll tax as a prerequisite to voting. It is my firm conviction, and it is legally documented, that South Carolina or any other State has the inherent right, guaranteed at the present time by the Constitution, to impose or to dispose of poll taxes, and that the Federal Government has no right in this field. A constitutional amendment may legally make poll taxes the Federal Government's business, but that does not make it right. It would be wrong.

South Carolina has had no poll ta:x prerequisite for the past 11 years. The people of South Carolina decided that matter by constitutional amendment that was ratified by the general assembly in 1951. Prior to that time we fought, just as bitterly as we fight today, attempts by the Federal Government to repeal State laws requiring payment of poll taxes as a prerequisite to voting in State elections. South Carolinians removed payment of poll taxes as a voting requirement. It was their State right to make such a decision. Other States may not wish to change their poll tax laws; and it is not the rightful business of the Senate to force such a change upon any people or any State. The right to establish certain qualifications for voters has been guaranteed to the individual States by the Constitution ever since we became a nation. Whether any individual Senator believes the payment of a poll tax should or should not be a qualification for voting has nothing to do with the underlying principle which is at stake today.

The principle involved is not the poll tax itself, but the right of the States to control their own election machinery . and to set forth qualifications which their citizens must meet before they are eligible to vote as now guaranteed the States. It has been proven time and time again in the Senate debates that it would be unconstitutional for the Congress to legislate an anti-poll-tax bill. Anyone can propose a constitutional amendment and be legally within his rights, but such an amendment to the Constitution is contrary to the intent of the founders of our Nation. The right of States in this area is outstandingly underscored in the .decision of Butler against Thompson, which I have cited previously. It was on May 28, 19~1. in this case on appeal from the U.S. District Court, Eastern District of Virginia, that the Supreme Court granted a motion to affirm the lower court's judgment on a poll tax situation. The lower court had stated that the decisions generally held that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the 'United States protected by the 14th amendment.

I want to quote the exact language, in part, from that decision by the Supreme Court of the United States:

The decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the 14th amendment. The privilege of voting is derived from the State and not from the National Government. The qualification of voters in an election . for Members of Congress is set out in article 1, section 2, clause 1, of the Federal Constitution, which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. The -supreme Court in Breedlove v. Suttles, 302 U.S. 271, 283, 58 S. St. 205, 82 L. Ed. 252, held that a poll tax :prescribed by the constitution and statut-es of the ' State of Georgia did not o:ffend the Federal con­ stitution.

Mr. President, the language is clear and explicit: The privilege of voting is derived from the State, and not from the National Government.

.Mr. President, there is no clearer way to state the matter. There are legislators in the Senate and in the House who carry around in their hip pockets as bibles to follow, so to .speak, the decisions of the Supreme Court. Hardly a day goes by in Washington that some legislator does not cry out about Supreme Court rulings being the law of the land. Certainly they . have hammered this home sufficiently in the 1954 school integration decision, which came up from my State. While I do not agree with these legislators, in that any supreme Court ruling is the law of the land, because Supreme Courts are subject to error as any other human group of people would be; I do wish that these Senators who feel that Supreme Court rulings in cases of integration are laws of the land would be consistent and, in this instance. agree that the decision of Butler against Thompson equally be considered the law of the land. In light of this, I should hope. too, that the sponsors of this amendment would withdraw it since the Supreme Court has stated it is a state :ma-tter and that the Federal Government has no business meddling in such state matters. Of course, I imagine this would be too much to expect at this time, concerning this particular ameildment.

In the lower court's decision in Butler against Thompson, whi~h was upheld by the Supreme Court, the following language was used. which ts as clear as any 1anguage anyone can cite:

To make payment of poll taxes a prerequisite of voting b; not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United . States, but is conferred by the State and, .save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution. the State may condition suffrage as it deems appropriate. (Minor v. Happersett, 21 Wall. 162, 170 et seq., 22 L. Ed. 627; Ex Parte Yarbrough, 110 U.S. 651, 66~65.)

Surely, this language of the highest court in the land ~hould be clear enough that this is a State matter.

I would like to go into the amendment proposed by the senior Senator from Florida.

As I have said at the outset, we must admit that anyone can offer any amendment to the Constitution and be within the law, so to speak. However, anyone can certainly question the wisdom of any such amendment proposed.

That is what I am doing at the present time, I am questioning the advisability of adopting any amendment which would qualify in any way the rights of any State to fix the qualifications of -voters in that State.

In the first place, there are only five States which still have poll tax as a prerequisite to vote. This means 45 other States do not require the payment of poll taxes in order to make one eligible to vote. At this late date, to go through the very expensive and cumbersome procedure to amend the Constitution, in order to force the will of 45 States upon 5 remaining States, is certainly poor sportsmanship and poor business, to say the least.

"The great danger in the amendment proposed by the senior Senator from Florida is not just in that it would keep the five remaining States from requiring the payment of poll tax as a prerequisite to vote. The real danger lies in the grotesque form which this amendment to the Constitution would take.

It would become a wedge in the door for further amendments and even unconstitutional legislation to enable the Federal Government to completely control all elections in the United States. If we have the right to pass judgment on a small matter like poll tax provisions in five States, then what will prevent us next year from coming back and proposing the elimination of other, or ev£D. all, State prerequisites for voting?

We know that at the present time they are knocking at the door with other amendments with regard to the qualifications of voters.

If States are not allowed to maintain this important right of establishing qualifications for their electors within the safeguards now contained . in the Constitution, then those who wish to take away this one constitutional right might well try .to broaden the proposed amendment by the Senator from Florida in some future amendment, to include all qualifications.

I think it would be well at this point that we refresh our minds with the provisions of article I, . section '2, -of the Constitution, which says:

The House of Representatives shall be composed tJf Members chosen every second Year by the People of the several States and the Electors 1n each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Leglsla ture.

That goes back to each State legislature.

The Congress recognized this reservation of power within the several States when the l'lth amendment to the Constitution was proposed. by the Congress to the States for their ratification. That amendment in its first paragraph provides:

The Senate of the United States shall be composed of 'two Senators from each State-

J: am quoting from the constitutional amendment. Senators should bear in mind that Senators were not always elected. It w.a.s left up to the States to choose them. For a long while Senators were not elected, but States chose their Senators. 1 ask Senators to listen to what the 17th amendment , provides: The Senate of the United States shall be composed .of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most .numerous branch of the State legislatures. Historically, the voting privilege was extended to inhabitants of a State in all the Original Thirteen States upon the basis of the State laws of those States. Some of them required a specific poll tax. All of them required the ownership of varying amounts of property, either real estate or personal property. Each State had varying other laws: (a) age; (b) residence in the State; (c) residence in the county, district, or precinct; (d) innocence of crime or conviction of crime; (e) and many other provisions; which determined the qualifications for voting.

There are many different qualifications for voting in the various States of the Union at the present time.

' It is my contention that we in the Congress have no right to interfere with the time-honored and respected provision of our Constitution that each State has the right to determine for itself who within its borders is qualified to vote. While .each of the Original Thirteen States imposed some sort of taxation upon its eligible electors and while the requirement of a poll tax now exists in only five States-namely, Alabama, Arkansas, Mississippi, Texas, and Virginia--we should not by our act attempt to sit in judgment upon a matter exclusively within the wisdom. discretion, and judgment of the people of the States concerned.

lt is not too much to suppose that the remaining five States ln due time will · dispense with the requirement of a poll tax. But this is a matter solely of their · concern. Why then should we set the date for them now, 186 years after our Nation was founded? It is their constitutional prerogative to do with this particular requirement as they see fit.

I think this system has worked pretty well in the 186 years it has been in existence.

It is neither our function nor our duty to impose our will upon the States by even a constitutional provision, for the Constitution already provides authority in this case.

Anyone has the right to propose an amendment , -but we have the responsibility to look beyond the immediate effects of such proposals and act wisely. In this case I think the proper thing to do is to reject it.

If we approve this amendment then what will prevent us from setting the age limits, the residence restrictions, the registration provisions and all the other numberless details which each of the 50 States, acting within its reserved powers, may establish for the exercise of this privilege of voting. The entire purpose of the two constitutional provisions I have set forth can be whittled away so that the entire reservation of a State's power may become meaningless and worthless.

We would then be ready to have set up here in Washington a bureaucracy clothed with power to establish the eligibility of voters in each State. When one creates a vacuum by removing State powers, one invites Federal powers to fill the void. Such action, I contend, would be contrary to - the express will of our Founding Fathers. Had such action been taken or proposed in 1787, there would have been no United States of America. The Colonies would have rejected a Union. The debates in the Continental Congress, the Federalist papers, and the minutes taken of the deliberations of the representatives in that Congress prove this fact beyond a reasonable doubt.

I do not believe in the theory of government that all wisdom is here at the seat of our Government. I believe in States rights. I believe we govern too much at the present time from Washington, D.C. I believe, as Jefferson believed that the people governed best are governed least. He also believed that the greatest wisdom for government resided in the people; and when this was removed from the people, bad government usually followed.

The elective process is one of the most vital, sensitive, and important powers remaining with the people of our several States. I would not, as a citizen of South Carolina, wish to impose one of its laws upon the State of New York, or Tennessee, or Florida, or Utah, or any other State through a constitutional amendment if such a law violated a power reserved to any one of these States.

The Federal branches of Government have too often raided our States' powers, usurped them, and imposed Federal will upon them. The time has come to halt this trend. The time has come for us to give back to the States some of the powers the Federal Government ought never to have assumed.

The Federal Government is now topheavy, and becoming more so.

If anyone does not believe that to be true, he should be a Senator for a while . Then he would learn how the Federal departments come in from every angle, to such an extent that one cannot keep up with what is going on at the present time.

The Federal Government has drained the States of their sources of revenue. It might be news to some, but at this time I am sitting with the subcommittee of the Committee on Appropriations holding hearings. The other day the representatives of the Internal Revenue Service came before us , with respect to the appropriations for the Internal Revenue Service for the year to come. Those representatives said that 95 million people were making income tax returns, and that they would collect this year approximately $98 billion. They said that next year, if everything ran along normally, they believed they would collect over $100 billion. I immediately asked a question. I said, "In the appropriation bill I can find only about $80 billion or so , and that is the figure spoken of most of the time in the newspapers."

The answer was that a great deal of back-door spending does not show up in the r e cord.

As I said a few moments ago, the time has come for us to give back to the States some of the powers that the Federal Government ought never to have assumed. The Federal Government is topheavy. It has drained the States, so far as revenue is concerned. The facts and figures I gave just now show that.

Laws have been construed so generously and ofttimes so unwisely that in many instances only the imaginary line divides our sovereign States . Thus, sovereignty has been almost absolutely destroyed. The rights of the people are lost . . They are in a Federal straitjacket. We lose our greatness as a Nation when the rights of our States are destroyed. This is an eternal truth.

I should think by now that we would have learned that we cannot legislate from the floor of the Senate without becoming embroiled and entangled in timeconsuming and effort-wasting debate. This is what would happen in this instance with a constitutional amendment as proposed. I hope the Senate will have the good sense to reject the amendment proposed by the senior Senator from Florida. In doing so, the Senate will be rendering the Nation a tremendously important service.

In July 1948 the late Senator Burnet R. Maybank, my colleague at that time, spoke at great length in defense of retention by States of powers controlling the qualifications for voters. In particular he referred to the requirement of paying poll taxes as a prerequisite to voting. At that time South Carolina still had this requirement but, as I pointed out earlier, it was subsequently repealed by constitutional amendment that was ratified by the State legislature. It was a State constitutional amendment, and not a Federal constitutional amendment.

The late Senator Maybank pointed out some very important facts concerning the history of South Carolina's poll tax. I would like now to quote from what he said at that time on the floor of the Senate:

The practice , custom, and tradition of levying a poll tax in the State of South Carolina had its origin prior to the American Revolution. In 1702 the general assembly passed an act for the purpose of raising revenue to be used in the defense of Charles Town.

The name has not been changed. It is "Charles Town," not "Charleston."

Continuing to read:

This act provided that 550 British pounds per annum be raised by a poll tax (spelled p-o-1-e). It provided for the payment of 20 shillings per annum by each man within the bounds of the town who was capable of bearing arms. It is interesting to note that this act also provided for the payment of 20 shillings per annum by every sin g le woman or widow that was a housekeeper within the bounds of the town. Thus we find that from the earliest time the poll tax was used as a revenue measure which, indeed, it is today in South Carolina.

This is proof that the existence of a poll tax came prior to the Constitution and for that very reason was a right retained by the States when the States drafted the Constitution. It is another reason why we should not tamper with this State right. We would be going behind the Constitution and, in a sense, breaking the faith of those who wrote the Constitution if we were to do so.

I wish to quote further from what Senator Maybank said, in the Senate on that particular occasion. I should think by now Senators might have observed that I am opposed to the amendment. Senator May bank said:

In 1876 Wade Hampton was elected Governor of the State of South Carolina, thus returning the official leadership of the State back to the citizens of South Carolina. Shortly thereafter the legislature passed an act providing for the collection of a poll tax referred to in the constitution of 1868. This act was ratified on March 22, 1878 .

The constitution of 1876 was the radical constitution in South Carolina and was at that time controlled by the colored people in that State.

Quoting further from Senator Maybank's speech:

That the several county treasurers shall retain all the poll tax collected in their respective counties; and it is hereby made the duty of the said county treasurers in collecting the poll tax, to keep an account on the exact amount of said tax collected in each school district in his county • • • and the poll tax collected therein shall be expended for school purposes in the school district from which it was collected.

It is worthy to note that the poll tax provision was first enacted in South Carolina in the constitution of 1868 under the reconstruction government of South Carolina, and that prior to that time South Carolina had no poll tax provisions.

From this we see that there was a definite purpose and need for poll tax legislation and the requirement that people pay this tax before they could vote was a necessary way to enforce payment of the tax. If a citizen desires the right to vote, he should carry with that responsibility the support of his State and its institutions, in this instance, the schools.

I do not think it is too much to ask ment. a citizen to pay his fair share of the burden of the cost of government if he is going to have a voice in saying how the government is to function. The late . Senator Maybank was discussing the constitutionality of legislation proposed at that time, 1948. Here is what Senator May bank had to say:

The proposed legislation is in direct conflict with article I , section 2, of the Constitution of the United States in that it attempts to take from the several States a right guaranteed to the States by the Constitution. This proposed legislation , known and designated as H.R . 29, and entitled "An act making unlawful the requirement for the payment of a poll tax as a prerequisite to voting in a primary or other election for national officers," is in effect changing the qualifications for electors for national officers in violation of article I, section 2, of the Constitution of the United States.

Article I, section 2, of the Constitution of the United States reads as follows:

"The House of Representatives shall be composed of members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature . "

This section of the Constitution is clear and unambiguous. The framers of the Constitution wisely decided that the qualifications requisite for electors of the House of Representatives should be left entirely to the several States. It is true that the qualifications of these electors may riot be the same in each of the several States, which itself shows that the framers of the Constitution did not desire uniformity.

Mr. President, ever since this speech was made by Senator Maybank the Supreme Court has ruled generally, but in most specific terms, that there is no such thing as Federal suffrage. There is only State suffrage, and the power to create such suffrage was not one granted to the Federal Government in the Constitution but on the contrary, to the several States. ~his guarantee of State suffrage to the States is the most important single bulkwark against a Federal Government controlling the ballot boxes of the Nation

Several of the States hesitated some years before ratifying the Constitution of the United States because they felt there was insufficient guarantee for preservation of the rights of the States. That was one of the main reasons for their hesitation. If the Constitution, as originally adopted, had contained a provision restraining the States from making their own voting qualifications, whether it be payment of a reasonable poll tax as a requirement or any other reasonable qualifications, the Constitution would not have been ratified and we would not now have constitutional government or a United States.

If Federal control of the ballot boxes of the Nation were to ever come about, we would no longer be a United States, but we would be a Federal institution which could be controlled by a handful of directors sitting in Washington. This is clearly just another move to strip the States of another right. No one can deny it. It is an anti-States rights amendment. President, this is not the only attack being . made against constitutional government and the State right of controlling election machinery. Now pending in the Senate Judiciary Subcommittee on Constitutional Rights, of which I am a member, are highly unconstitutional measures proposing to force upon the States by Federal intervention a uniform literacy requirement for voting. That is clearly unconstitutional. The proposals pending before the subcommittee on constitutional rights are just another attack launched against the control of elections by individual States. They are whittling away at every corner of the bill; they are working like termites to take away from the States their rights.

It is another determined effort by the band of liberals to place under the Federal Government complete control of all elections. The proponents of this bill would have the Federal Government force the States to permit every individual to vote regardless of their ability to read, write, and comprehend the candidates and the issues of the day.

In each passing year we see more and more attempts to destroy the foundation of our election system by those who would unconstitutionally legislate away the powers of the individual States. It is my purpose today in addressing the Senate on this subject, to place before the American people the unquestionable, documented legal and historical background why the Congress cannot constitutionally legislate away from the States the right to control their own elections.

Mr. President, the proposed legislation, S. 2750, now pending before the Judiciary Subcommittee on Constitutional Rights, is the latest attack launched against the control of elections by the individual States. The establishment of reasonable and responsible prerequisites to voting is a State right and a State function. This proposed legislation, S. 2750, which would attempt to impose upon the States a uniform literacy test requirement for voting in Federal elections in all the States, is unquestionably unconstitutional.

The very title of the bill is misleading and from every viewpoint there is no just and right argument why the Senate of the United States should not kill this proposal as well as the resolution now being debated.

This bill itself can be said to be comprised of two parts. The first is a preamble that states it to be the finding · of · congress that literacy tests and other performance examinations have been used extensively to effect arbitrary and unreasonable denials of the right to vote, denials which may or may not be based on race or color, and that existing statutes are inadequate to assure that all qualified persons shall enjoy the right to vote. There is no proof of this, and from a legal standpoint these tests requirements in the several States from their language apply to all citizens alike without regard to race or color, and have, therefore, been upheld by the U.S. Su­ · preme Court, which in numerous cases . has said they are valid so long as they .do not discriminate and apply to all alike. These literacy tests statutes have been upheld by the Supreme Court without exception and as late as 1959, with respect to North Carolina in Lassiter v. Northampton County Board of Electors, 360 U.S. 45.

The second part of this bill is the operative section which amends section 131 (c) (b) of the Civil Rights Act of 1957 (42 u.s.c. 1971(b)).

This provision would add another prohibition in a Federal election against subjecting or attempting to subject any person to the deprivation of the right to vote in any Federal election. "Deprivation of the right to vote" is defined as to ~ ' include but shall not be limited to, first, the application to any person of standards or procedures more stringent than are applied to others similarly situated; and, second, the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico."

The bill states that the basis of congressional authority for the enactment of such a measure are set forth as the 14th and 15th amendments, article I, section 4 of the Constitution. I shall rely on these provisions of the Constitution to show that the bill pending · in committee is unconstitutional, and the Supreme Court cases affirm my position. The reason why I am discussing the bill now pending before the committee is that it is an example of the attempt which is being made to whittle away the rights of the States.

A Federal statute attempting to establish a uniform literacy requirement for voting in Federal elections certainly is unconstitutional. The creation of such a qualification for voting would require an amendment to the Constitution of the United States. Of course, we realize that the Constitution provides the method by which the Constitution itself may be amended and the only way in which it may be amended, and certainly Congress has no right by an act to amend the Constitution. The power was left to the States to determine the qualification of its voters.

Concerning the qualification of voters for U.S. Senators and Representatives in Congress the Constitution contains the following provisions. I first quote from article I, section 2, clause 1:

The House of Represen ta ti ves .shall be composed of Members chosen every second "Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

I now quote from amendment xvn with reference to election of Senators. I do so because there are some that have maintained that this in some way took away the exclusive rights of the States to set the . qualifications of the voters. It does not because the language is simple and clear. Reading from the 17th amendment:

The Senate of the United States shall be composed of two .Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. This is certainly clear language. Certainly we do not deny the right of the States to name the qualifications necessary for the electors of its own state legislature. It is evident from the above provisions that although the States may not prescribe the qualifications of voters of Congress as such, the qualifications prescribed by the States for electors of the most numerous branch of their legislatures a-re adopted by the Constitution for this purpose.

I would like to point out here that most States, according to these provisions of the Constitution, have adopted a literacy test of their own, the State of New York included. The State of New York has a strict literacy test. No contention has ever been made that they . did not have the right to set such qualifications so long as they did not discriminate. It is certainly evident from the provisions which I have quoted that although the States may not prescribe the qualifications of voters of Congress as such, the qualifications prescribed by the States for electors of the most numerous branch of their legislatures are adopted by the Constitution for this purpose. Certainly I say again that no one argues · that any -authority other than the States themselves have the right to set the qualifications for electors of the most numerous branch of their legislatures.

I shall discuss the last point which I have made, the Supreme Court opinion in Ex parte Yarborough, reported in 110 U.S. 651, 663, stated as follows:

The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State.

It adopts the qualification thus furnished as the qualification of its own electors for Members of Congress. It is not true, therefore, that electors for Members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.

However, it clearly leaves it to the States, and this is part of the above case cited, Ex parte Yarborough, supra. I now quote from the 14th amendment, section 2:

.Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice .President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basic representation therein shall be reduced in the proportion which the number of such male citiZens shall bear to ~he whole number of male citizens twenty-one years of age in such State. So we see that this section does not take away or in any way deny the right of each State to set the qualifications of voters, but still leaves it in their exclusive jurisdiction to provide the qualifications of voters, and provides some penalty for discrimination, but in no way takes away the right of States to set qualifications. As early as 1898, the U.S. Supreme Court held that the provision of section 244 of the constitution of Mississippi, making the ability to read any section of the constitution, or to understand it when read, a necessary qualification to be a legal voter, does not on its face discriminate between the white and Negro races, and does not amount to a denial of the equal protection of the law secured by the 14th amendment of the Constitution. The constitution of Mississippi and its statutes "do not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them." That is the language of the Supreme Court's decision in the case of Williams v. Mississippi: reported in 170 U.S. 213, 220, and 225.

I quote now from the 15th amendment, because again some have maintained that it might have changed or abridged the right of the States to the exclusive jurisdiction to name the qualifications of voters. The 15th amendment reads as follows, reading from section 1 thereof: . 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. It says nothing, of course, about the States not having the right to set their own qualifications for their voters, and this provision does not take away that right, but only provides that there shall be no discrimination; and, of course, if the literacy tests provided by the States are the same for all of their voters, as stated, and are fair, then certainly the States have this right, and there is no discrimination. So in the case of Williams against . Mississippi, as quoted above, in upholding as constitutional the provisions of the Mississippi statute relative to the literacy test, the Court clearly said that since the States have the right, under the Constitution, to name the qualifications; they have the right to make a literacy test a necessary qualification, the only limitation being that it shall apply to all voters alike, · and is valid so long as it does not discriminate.

I quote now from section 2 of the 15th amendment:

The Congress shall have power to enforce this article by appropriate legislation.

Th-e effect of this amendment · is, beyond any doubt, . not to take from the · state governments, in a , general sense, the power over suffrage, which has belonged to those governments from the beginning, and without the possession of which power the whole fabric upon which rest the division between State authority and national authority under the Constitution and the organization of both governments would be without support, and the authority of both the Nation and the States would fall to the ground.

In fact, the very command of the amendment recognizes the possession of the general power by the States, since the amendment seeks to regulate its exercise as to the particular subject with which it deals: that is, that there shall be no discrimination among the races. That is all that it seeks to do. It . does not in any sense take away the right of · suffrage or the right of qualifications to be set by the States themselves. I now quote from the Court's decision:

No time need be spent on the question of the validity of the literacy test considered alone since as we have seen its establishment was but the exercise by the State of a lawful power vested in -it not subject to our supervision, and indeed, its validity is admitted. This quotation is from the Court's decision in the case of Guinn v. United States. 238 U.S. 347, 362, 366.

The decision in Guinn against United States may be summarized by stating that the Court held that the power was left with the States to determine the qualifications of their voters, and that a State may establish a literacy test as a prerequisite for voting, providing that such test applies alike to all citizens of the State, without discrimination as to race, creed, or color.

As stated above, practically all the States, including States in the North and South, among them the State of New York, have provided literacy tests . There has never been any contention that a literacy test was not valid, so long as it did not discriminate. Certainly the amendments and the Court decisions only hold that there shall be no discrimination.

None of these provisions takes away any of the rights of the States-which they have, and have always had-to determine the qualifications of the voters. The States themselves have that right.

Now I shall quote from what was stated by the Supreme Court on the 14th and 17th amendments, in commenting on the principle laid down in Guinn v. United States. supra and Lassiter v. Northampton Election Board, 360 U.S., pages 45 and · 5o. I may point out that this case is as recent as 1959; the Court said:

We come then to the question whether a State may consistently with the 14th and 17th amendments apply a literacy test to all voters irrespective of race or color.

In Guinn v. United States, supra, on page 366, the Court disposed of the question in a few words:

No time need be spent on the question of the validity of the literacy test considered alone since as we have seen its establishment was but the exercise by the State of a lawful power vested ln lt not subject to our supervision, and, indeed, its validity is admitted. I continue to quote from the Court's decision:

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.

Cited in support of this is the case of Pope against Williams, reported in 193 U.S., on pages 621 and 633; and Mason against Missouri, reported in 179 U.S., on pages 328 and 335:

Absent of course the discrimination which the Constitution condemns. Article I, section 2 of the Constitution in its provision for the election of Members in the House of Representatives and the 17th amendment in its provision of Senators provide that officials will be chosen "by the people." Each provision goes on to state that "the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. Again I say that certainly no one denies the right of the States to name the qualifications of the members of its legislature. And this quotation is from the Supreme Court, stating again that in interpreting the above named sections of the Constitution, the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Quoting further from the Supreme Court:

So while the right of suffrage is established and guaranteed by the Constitution (Ex parte Yarborough, 110 U.S. 651, 663-665; Smith v. Albright, 321 U.S. 649, 661-662) it is subject to the imposition of State stand- · ards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.

This is quoting still from the Supreme Court in which it says see United States v. Classic, 313 U.S. 299, 315; and I say now, again showing that the only power that Congress has is to pass legislation to see that these qualifications are not discriminatory.

And, as long as they are not, the State has the right to state the qualifications of its voters, applying the same to all of its citizens, this latter being the only restriction.

Further quoting from the Court in this case:

We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ab111ty to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society, where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are .literate should exercise the franchise.

This is also from the Supreme Court. We say, of course, again that certainly states have the right to provide the qualifications according to residents' age, and so forth; and, as the Court has said, it also has the right to state the literacy requirements according to its standards for all voters within the State, and Congress under the Constitution, and these decisions of the Court certainly have no right constitutionally to take away that right from the States or to say that the States would not have the right themselves to state what these literacy qualifications should be in each State.

I continue to quote from the Court:

Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the 15th amendment was designed to uproot. No such influence is charged here. On the other hand, a literacy test may be unconstitutional on its face (citing Davis v. Schnell, quoted in 336 u.s. 933).

Further quoting:

The great discretion it [the legislation] vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy. We cannot make the same inference here. The present requirement, applicable to 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 literate, not a calculated scheme to lay springs for the citizen.

I maintain again that the 15th amendment provides only that there will be no discrimination as to race, creed, or color, and so forth. It in no way touched on the question of the right of the States to name the qualifications for its voters as long as there was no discrimination; and so, by this constitutional amendment the right of the States to name the qualifications of its voters remains with the State alone.

Mr. HILL. Mr. President, will the Senator yield for a question?

The PRESIDING OFFICER (Mr. PELL in the chair). Does the Senator yield?

Mr. JOHNSTON. I · yield for a question, with the understanding that I shall not lose my right to the floor.

Mr. HILL. Is it not true that there is no provision of the Constitution which has been more jealously guarded or more highly respected by the courts than section 2 of article I?

Mr. JOHNSTON. That is certainly true.

Mr. HILL. Has not the Senator been citing case after case confirming this fact?

Mr. JOHNSTON. Yes. I shall cite many other cases from the Supreme Court of the United States.

Mr. HILL. Is it not true that all the cases have confirmed and ratified section 2 of article I, leaving to the States the question of fixing the qualifications of voters?

Mr. JOHNSTON. In all sections of the Constitution it is left entirely to the States.

We may summarize Lassiter against Northampton County Board of Elections, to affirm the principle that the application of a literacy test by a State as a qualification for voting is consistent with State power under the 14th and 17th amendments if applied to all voters alike, irrespective of race or color; and if such requirement is not unfair on its face and does not show an intent to effectuate discrimination, it is not violative of the 15th amendment.

ARTICLE I, SECTION 4, CLAUSE 1

We have seen from the aforementioned decisions that a State statute providing literacy as a qualification for voting in a Federal election is not only valid but actually derives its validity from article I, section 2, clause 1, supra, and from the 17th amendment, supra, the provisions of which give recognition to the fact that the States may set requisites for electors of the most numerous branch of the State legislature by adoption of these requisites for electors of U.S. Senators and Representatives.

We come now to the effect which article I, section 4, clause 1 of the Constitution may have upon the question. The Constitution provides in clause 1 of section 4, of article I as follows:

The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The case of Ex parte Clarke, 100 U.S. 399, decided in 1879, involved the constitutional power of Congress to enact a law for punishing a State officer of election for the violation of his duty under a State statute in reference to an election of a Representative to Congress. The Court held that Congress did have this power. This type of statute was considered as covering the "manner of holding" an election.

The case did not involve the qualification of voters. However, Justice Field, in the dissenting . opinion, does speak about qualifications of voters and makes the following comment on pages 418-419: The power vested in Congress is to alter the regulations prescribed by the legislatures of the States, or to make new ones, as to the times, places, and manner of holding the elections. Those which relate to the times and places will seldom require any affirmative action beyond their designation. And regulations as to the manner of holding them cannot extend beyond the designation of the mode in which the will of the voters shall be expressed and ascertained. The power does not authorize Congress to determine who shall participate in the election, or what shall be the qualification of voters. These are matters not pertaining to or involved in the manner of holding the election, and their regulation rests exclusively with the States. The only restriction upon them with respect to these matters is found in the provision that the electors of Representatives in Congress shall have the qualifications required for electors of the most numerous branch of the State legislature, and the provision relating to the suffrage of the colored race. And whatever regulations Congress may prescribe as to the manner of holding the election for Representatives must be so framed as to leave the election of State officers free, otherwise they cannot be maintained. In one of the numbers of the Federalist, Alexander Hamilton, in defending the adoption of this clause in the Constitution, used this language: "Suppose an article had been introduced into the Constitution empowering the United States w regulate the elections for the particular States, would any man have hesitated to condemn it, · both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? "The violation of principle 1n this case would have required no comment." By the act of Congress sustained by the Court, an interference with State elections is authorized almost as destructive of their control by the States as the direct regulation which he thought no man would hesitate to condemn. The views expressed derive further .support .from the fact that the constitutional provision applies equally to the election ot Senators, except as to the place of choosing them, as it does to the election of 'Representatives.

It is apparent from Justice Field'.s com- _ ments that this provision of article I, giving Congress the power to alter such regulations of the times and "manner of holding elections for Senators and Representatives" does not apply to qualifications for voting.

It would seem that if the Constitutional Convention had .intended section 4 of article I to authorize Federal legislation concerning qualification of voters, then such intent must have been to nullify, by section 4, the power over qualifications of voters which it had left with the States in section 2 of the same article I. It is difficult to attribute such a motive to that body. Thus, since it is a "most fundamental principle of our constitutional jurisprudence" that "all the provisions · of the Constitution are equally binding upon Congress’—and r quote there from Willoughby on the Constitution of the United States, volume 1, page 493---.it must be assumed that .section 4 of article I means no more than what it says and applies only to the manner of holding elections, leaving the coverage of the qualification of electors to section 2 of said article, which leaves it to the exclusive jurisdiction of the States and to the States only and not to Congress. Under what authority, then, can Congress enact legislation concerning such qualifications? The answer is clear that Congress has no .such power and to acquire it would require a constitutional amendment, which under the Constitution there is only one way as stated above that the Constitution can be amended. And it certainly cannot be amended by act of Congress of the United States which is attempted in the present bill before the Judiciary Committee today. In further duscussing the unconstitutionality and illegality of the attempt in this measure before the committee by such proposed legislation to usurp the constitutional rights of the State, in making my following remarks I shall make some reference to an editorial which appeared in the Wall Street Journal January -30, 1.962, and which later appeared in the CONGRESSIONAL RECORD in its entirety. The editor says that now he possesses an official certificate-his voting certificate-from the State of New York testifying that he can read, and he goes on to state that New York requires every voter to be able to .read the 'English language and strangers within its gates are .required to show proof by taking a literacy test by the New York Legislature according to the needs of the people of the State of New York. Now, though, we are being told by a number of political leaders that it is a wicked thing to make a literacy test for voting. This of course, is another fact in the latest iD. a series of moves, all put forward in the name of “civil -rights" to challenge any and all requirements for voting which the Constitution allows the several States to establish, among th-em a. literacy test. And, of course, the immediate cause of this latest attack on literacy requirements is the unhappy fact that among some minority groups there is widespread illiteracy. Many Puerto Ricans cannot speak it, much less read it. And as any Army recruiting officer can tell you, there are many people who cannot read their native tongue well enough to understand the simplest instructions. The politicians' immediate interest is that all these add up to many potential voters who would be grateful to · the politician who won them the voting privil-ege, regardless of whether the voter understood for whom he was -voting or what he was voting for, or why. So, therefore, we contend that these, certainly the lawYers, know that it would be unconstitutional to deprive the States of their right to set the qualifications of voters of the States, and accordingly each State must -determine the test ne~ed for that particular State, just as 1t must for age, residence, and other requirements.

According to all the decisions of the Supreme Court of the United States which I have quoted, these literacy tests have been upheld numerous times by the Supreme Court as a. valid requisite for voting. Each State must set its own standards and qualifications for voting, but it must be sure that those who vote can intelligently vote and can cast their own ballot. Certainly there is no charge here that any of these are discriminatory. But it seems to us here that this is the way by which such type of legislation as this proposed bill would provide -a means for voting and controlling block votes of ignorant ones whose true wishes would be denied. And those people voting would not know how they were voting, for whom they were voting or why. Certain politicians said they could control block votes in this manner. The thing, from a legal standpoint, that is being assaulted in this proposed measure before the committee today is the fact that responsible democracy rests upon responsible voters; the child, the m-oron, the illiterate, the ignorant, the man who contributes nothing to the commonwealth, the voice of each of these should be counted equally with the voice of the literate, the educated, the intelligent, and the informed, according to these politicians. Certainly that would not make for good government. It would mean that there would be those politicians who could control these ballots; therefore, our forefathers placed in the Constitution the rights of the States to name their own qualifications. The Supreme Court has wisely seen fit in all its cases to uphold the validity of all the literacy tests for each State so long as they did not discriminate according to race, creed, or religion.

It certainly gives the States the right to say · that those who vote within the borders of the state shall be able to vote intelligently. .B__y the same token it says plainly that none of those who _propose such legislation would attack the fa.et that each State has the right to state what age a person must be before he 1s qualified. Following their argument here, why should they not be able to pass a bill which would apply to all States saying that children 10 years of age could vote? It would make certainly as much sense as this type of legislation. And perhaps children 10 years of age, many of them at least, -could vote more intelligently than those who are illiterate, who cannot understand the English language as it is written and who therefore in their voting would not make for good government.

As I say again, constitutionally these qualifications are left to the States; the Supreme Court has upheld the validity of each State in these literacy tests so long as they do not discriminate. Now society, certainly in this view, must ~ permitted to protect itself with even the most rudimentary rules to make voting a privilege of those who have at least an elemental understanding of, and make some contribution to, the society in which they -are privileged to live. As I say again, some of these references are to the editorial as aforementioned.

It would be fruitless to remind those of this persuasion that the American experiment owes its success to the wisdom of those who, in drawing its basic constitution, knew the dependence of democracy upon a responsible citizenry and wrote in many more voting restrictions than we today would dream of. Th€ reminder would not be persuasive because, among those people, traditional wisdom is hooted at.

They all want the ignorant to vote. They might as well say that the children shall vote, that anyone can vote; therefore. if there are restrictions placed on voting, these literacy tests, I say again, have been upheld by the Supreme Court on all occasions.

Another requisite for voting which is guaranteed the States by the Constitution is the requirement of residence for a certain length of time; this is not being attacked, yet. How.ever, I am sure that if the forces behind this proposed bill are successful in this endeavor, they will be knocking at the Senate door to do away with residency and other State imposed prerequisites to voting. Indeed they will probably want to clear the decks of all prerequisites to voting and allow anyone to vote regardless of how unqualified they are to judge the issues and regardless of how unable they are to reason right from wrong. The reason for the residence requirement is the reason that even if a person is literate and well educated that certainly he is not in a position to cast a ballot in a locality unless he has been there a sufficient time to understand the issues. Then why would it be proper not to have the States establish adequate literacy tests to be sure that those who vote know for whom they are --voting and why they are voting. That again I say is why the Constitution guarantees the right of the States to set the qualifications, among them age, residence and literacy, which have all been upheld - by the Supreme Court. And as the editor in the Wall Street Journal said, to cast a ballot is a proud thing, and as a nation we ought to work hard to make the best government possible for all. But the way to do it is to lift up the underprivileged and not to heed those who would debase the privilege. For the reason that the Constitution guarantees that each State deciding according to its own needs legislates the necessary age, resident requirements and necessary prohibitions for those who have been convicted of certain crimes, it must then necessarily follow that each State according to its own needs is guaranteed under the Constitution and must set its literacy requirements, so long as it applies to all citizens of the State alike. The proponents of this bill do not contend there is any distinction between the rights of States to provide age and residence requirements, nor do they contend that Congress could pass a uniform age and residence voting bill. What is the difference?

Also, we know that it is elementary that any rights not reserved to the Federal Government are left to the States. We have - forgotten that section of the Constitution. In this instance we go further because voting qualifications for States are guaranteed to the States by the Constitution; and, therefore, the rights can only be taken away from the States by con s titutional amendment and not by act of Congress as is proposed in the bill before the Judiciary Committee. The argument that the term "manner" is a source of authority for the provision in the bill is thus found to be without substance. There is a clear distinction in the Constitution as between power to regulate the manner of holding Federal elections and regulation of the qualifications requisite for voting at such elections. The one authority is found in article I, section 4, clause 1, and is separately allocated from article I, section 2, clause 1, and from the 17th amendment. "Manner" refers to the mode of voting, the method by which eligible or qualified voters' choices are expressed and determined.

The difference between the power to regulate the manner of Federal elections and the qualifications of voters thereat is as wide as the difference between determining how and who. By no stretch of the imagination can the how of voting be deemed to encompass the who.

All of the Supreme Court opinions in which the Court interfered in elections dealt with fraud, corruption, and preventing someone qualified from voting. In fact, the most extreme definition of the scope of the power to regulate the · manner of holding Federal elections, that pronounced in ex parte Siebold in 1880 did not include extension of the authority over voters' qualifications. The Court-page 396-in discussing the scope of power that Congress might exercise if it were, under article I, section 4 ; to assume the entire control and regulation of the election of Representatives, stated: This would necessarily involve the appointment of places for holding the polls, the times of voting, and the officials for holding the election; it would require the regulation of the duties to be performed, the custody of the ballots, the mode of ascertaining the results, etc.

I have cited several cases in which the Court interfered with reference to the manner of holding elections. I have cited numerous cases, including one as recent as 1959, showing that the Court has always upheld the right of the States to determine voter qualifications, and in both lines of cases, those on the manner and those dealing with qualifications, the Court has always distinguished between the manner of holding elections and the qualifications of voters and has said in all of these decisions that while the manner of holding elections may be determined by an arm of the Federal Government, the qualifications of the voters, according to the Constitution, re s ts solely and exclusively with the St a tes.

The strength of our system is rooted in a balanced, divided, and limited government, and thus far the States, acco rd ing to the Constitution of the United States and sanctioned by the Supreme Court, . have exercised their power to determine voter qualifications on a nondiscriminatory ba s is, in accordance with the wishes of their own citizens, not as directed from Washington. These qualifications have served for electors of Repre s entatives and Senators as well.

This method of prescribing qualific · a­ tions was an e s senti a l element of our original conception of a balanced, divided, and limited government. The same principles guide us today. But if the balance of the system is weakened, the division erased and the limitationsprovided for in the Constitution-on the National Government removed, the necessity of reliance on persuasion and compromise is also minimized and can easily be replaced by reliance on other · agents such as force.

We know today how the Federal Government threatens to impose upon the States certain laws that are on the statute books .

Proponents of this bill say that action the roll. by means of a statute is all that is necessary to achieve what is really general regulation over voter qualifications. Yet, most of these same Senators in 1960 voted to approve a constitutional amendment prohibiting the imposition of a poll tax as a condition for voting in Federal elections. A poll tax determines eligibility to vote.

It is a voter qualification factor just like a literacy test. How is it then true that those who now assert that voter qualifications can be regulated by Congress by statute were of the opinion 2 years ago that the proper vehicle for this was a constitutional amendment? Because of the clear constitutional question presented, the only proper course then to follow is the procedure of constitutional amendment in establishing uniform literacy requirements for Federal elections. While I must admit it would be legal to establish a so-called uniform Federal literacy requirement for voting by enacting a constitutional amendment to this effect, I say it not only would be wrong, but it would be clearly contradictory to the original understanding reached by the various States when they adopted the Constitution.

It should be remembered that many States hesitated some time before they ratified the Constitution. The reason was that they felt the Constitution did not guarantee strongly enough these rights to the States and did not guarantee enough rights to the individual States. We should not now justify this hesitancy by destroying what was guaranteed in the Constitution.