March 21, 1962 (2)

The significance of this history is reinforced by the fact that as late as 1912, when the 17th amendment was proposed by Congress, providing for popular election of Senators, language was used identical to that of article I, section 2. This amendment says:

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

It should be noted that these words were adopted after more than a century of experience with the suffrage provisions contained in the Constitution and also after there had been ample time to observe operations of the newer poll taxes which were imposed between 1875 and 1908.

D. FEDERALIS'l;' INTERPRETATION OF ul\dANNE.R"

The fourth section of article I reads: The times, places, and manner o! hold­ .. ing elections for Senators and Representatives ; rshall 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 choosing Senators.

The main purpose of this section was to enable both the State and Federal Governments to preserve themselves by the regulation of elections-see Nos. 59 and 60, Federalist Papers.

Also, discussing article I, section 4, in · the Virginia ratifying convention, Mr. · Madison explained:

It was found impossible to fix the time, place , and manner of the election of Representatives In the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the . situation of the people, subject to the control of the General Government, in order to enable it to produce uniformity and prevent its own dissolution.

And, considering the State governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State governments, the General Government might easily be dissolved. But if they be regulated properly by the State legislatures, the congressional control will very probably never be exercised. This, it should be remarked, deals only with the times, places, and manner of holding elections and not with qualifications of voters since, under the provision of article I, section 2, a State could not attempt to dissolve the General Government by disqualifying voters without automatically dissolving its own government. It is essentially a distinction between substance and procedure. This · distinction was made by a concurring opinion in Newberry v. U.S., 256 U.S. 232, 280 (1920).

Arguments have been made that "manner" does not refer merely to procedure of elections; but to accept that premise is to agree to what the entire thrust of the constitutional debates refute, that the Central Government could impose uniform franchise qualifications. · Rather, Hamilton argues that once the States set up a qualification, the Central Government could insist that it be carried out, i.e., that elections be held. · Hamilton's analysis was reinforced by the majority opinion in Newberry against United States where Justice McReynolds states that "manner" of holding elections does not mean power broadly to regulate them-at 256.

Moreover, this clause has been used as the author foresaw, to protect a Federal election from corruption, later referred The foregoing history is convincing evidence that the members of the Constitutional Convention and the Ratifying Conventions intended the Constitution to give to the States and to the States only the authority to prescribe qualifications for voters. The courts have consistently followed this interpretation.

COURT INTERPRETATION OF SECTIONS 2 AND 4 OF ARTICLE I

In Ex parte Yarbrough, 110 U.S. 651 (1884l, the court said, after quoting section 2, article I:

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. N-or · can they prescribe the qualifications 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 ill: that State. It adopts the qualification thus furnished as the qualification of its own electors for Members of Congress (at See also Swafford v. Templeton, 185 U.S. 487 (1902), following Yarbrough and pointing out once more that it is the Constitution, not Congress, that . adopts the qualifications of State electors. McPherson v. Blacker, 146 U.S. 1, 27, 35 (1892), reaches the same conclusion.

State power over definition of voter qualification was again affirmed by the Supreme Court as recently as June 8, 1959, In Lassiter against Northampton County Board of Elections, upholding a North Carolina illiteracy test, Justice Douglas said:

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised (at p. 6).

The main discussion of the court in Yarbrough was interpretation of section 4, article I. Congress' power over the "manner" of holding elections. The theory of protection against corruption - of qualified voting was fully developed in this case.

Yarbrough and others were prosecuted for interfering by physical attack with the exercise of the right to vote of certain qualified voters in an election of a · Member of Congress from Georgia. After holding that Congress under the · quoted section could pass an act prohibiting such violence, Justice Miller wrote:

Can it be doubted that Congress can by law protect the act of voting, the place where it is done, and the man who votes from personal violence or intimidation and the election itself from corruption and fraud? (at 661).

Or a suppression of voting rights by electors who refuse to accept payment of a poll tax prerequisite may be protected by congressional action under section 4, article I, United States v. Munford, C.C.E.D. Va. 16 Fed. Rep. 223, 228 (1883).

It is here in the realm of protection that United States v. Classic, 313 U.S. . 299, 320 (1941) is appropriate. It points out that section 4 of article I is supple- . men ted by Congress' power to pass implementing legislation under the "necessary and proper" clause, article I, section 8, clause 18. The case does not stand for · a general regulation of qualifications, for . the holding of the case was that a primary was part of a general election. . The foregoing authorities demonstrate that the Federal Government may protect the purity of its elections-but to equate all poll tax statutes with corruption is to miss the point, Those who believe corruption is the result have power to pass Federal legislation specifically outlawing such abuses as the pur- . chase of poll tax receipts.

l have endeavored to show that the purpose of · the two sections of the Constitution when written and as judiciall:Y interpreted does not admit of any restriction on State power to define voter qualifications. Nowhere in the body of the original Constitution will be found a restriction on the discretion of the States in fixing the qualifications of voters. However, restrictions were later added by the 14th, 15th, and 19th amendments. I point out that they were made effective by amending the Constitution, which is the only proper approach that should be taken by those who seek to eliminate the poll tax requirement.

What is the nature of these restrictions? Do they forbid a poll tax qualification?

THE MEANING OF THE 14TH AND 19TH AMENDMENTS

The 14th amendment provides:

SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law . which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Minor v. Happersett, 21 Wall. 162 (1874), following the adoption of the 14th amendment, a woman argued that a Missouri law which limited the franchise to men deprived her of citizenship rights which the amendment gave her. The court denied her claim, because the right to vote before the amendment was not necessarily one of the privileges or immunities of citizenship, and the amendment did not add to them. It simply furnished an additional guaran- · tee for the protection of such as she already had-at 171. The court concluded · with the statement that it was "unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void"-at page 178. See also U.S. v. Cruikshank, 92 U.S. 542, 554 (1875).

In the case of Breedlove v. Suttles, 302 U.S. 277, 238 (1937), a Georgia statute making a poll tax a voting prerequisite to Federal and State elections was attacked on the ground that it violated the 14th and 19th amendments. The tax in question applied to all inhabitants of Georgia between the ages of 21 and 60, with an exception for females who did not register for voting. The court held · that the classification of the law, not being an invalid discrimination, did not violate the equal protection clause of the 14th amendment. The court also held that the exemption for women who did not vote was not in violation of the 19th amendment. In the course of its opinion the court also stated clearly that the poll tax was not prohibited by the privileges and immunities clause of the 14th amendment and was a proper qualification for voting for the States to impose.

To make payment of poll taxes a prerequisite of voting is 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. Ex Parte Yarbrough, 110 U.S. 651, 664--665. McPherson v. Blacker, 146, U.S. 1, 37-38. Guinn v. United States, 238 U.S. 347, 362. The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources. Hamilton v. Regents, 293 U.S. 245, 261.

There have been attempts to distinguish the Breedlove case on the grounds that the voting registration was for both State and Federal elections, and thus the necessity for a State to control its own election dictated ' the result.

But the distinction appears without merit since a later case solely involved a Federal election, Pirtle v. Brown, C.A. 6 (1941) 118 F. 2d 218, cert. den. 314 U.S. 621. A citizen of Tennessee otherwise qualified was refused . the right to vote in a special election to fill a vacancy in the House of Representatives because he had not paid the poll tax. The reasoning of Breedlove was followed, and the Supreme Court denied a petition for review.

These two cases also serve to destroy the notion, sometimes advanced, that a poll tax is a tax on a national function, that of voting, and hence unconstitutional.

THE MEANING OF THE 15TH AMENDMENT

The restrictions of the 14th and 19th amendments have been studied. I should now like to examine that of the 15th, which reads:

SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SEc. 2. The Congress shall have power to enforce this article by appropriate legislation. In United States v. Reese, 92 U.S. 214 (1875). the Court construed a statute passed under Congress' power of section 2 to enact appropriate legislation. The act was invoked by the applicant because his failure to pay a poll tax enabled the inspectors to prohibit his voting in a municipal election. In the opinion of Chief Justice Waite the following statement is made:

Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. * • • The 15th amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not.

See also Guinn and Beal v. United States, 238, U.S. 347, 362 (1915) where Chief Justice White stated for the Court that the States retained the power under article I, section 2, to establish qualifications of voters, "except of course as _ to the subject with which the 15th amendment deals and to the extent that obedience to its command is necessary."

VIRGINIA POLL TAX HELD VALID

The question of Virginia poll tax as · a prerequisite to voting was reviewed by a special three-judge court as recently as 1951 in Butler v. Thompson, D.C.E.D. Va., 97 F. Supp. 17, affirmed, 341 U.S. 937. Judge Dobie quoted from an earlier opinion in the case of Saunders v. Wilkins, 152 F. 2d 235, 237, as follows:

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 I section 2, clause 1 of the Federal Constitu- tion 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. 277, 283, 58 S. Ct. 205, 82 L. Ed. 252, held that a poll tax prescribed by the constitution and statutes of the State of Georgia did not offend the Federal Constitution.

Then followed the quotation from Breedlove against Suttles, which I quoted earlier.

In the latter part of the decision in the case of Butler against Thompson the Court discussed the general principle that a statute may be administered in such a fashion as to be unconstitutional even though it is fair on its face, under the 14th amendment, as in Yick Wo v. Hopkins, 118 U.S. 356 or under the 15th amendment as in Lane v. Wilson, 307 U.S. 268. Judge Dobie reviewed the administration of the poll tax in Virginia, and came to the conclusion, on the basis of the evidence presented tq him, that it was being fairly administered, without discrimination on the basis of race. · ~ Accordingly, Judge Dobie, speaking for the unanimous three-judge court, held that the Virginia poll tax statute did not violate either the 14th amendment or the 15th amendment, and was valid under article I, section 2 of the Constitution of the United States.

Mr. President, Butler against Thompson shows clearly that the administration of the poll tax in Virginia has not been used as a vehicle of discrimination against voters on account of race or color. As the senior Senator from Virginia stated earlier in the week, Virginia's modest $1.50 poll tax approximates the compensation, these days, for 1 hour of work. Virginia now has more than 100,000 qualified persons who pay the poll tax and vote. It is true that many colored people do not pay it; but it is likewise true that many white persons do not pay it either. Those people are simply not interested enough in government to pay the $1.50. Nor do they wish to take the trouble to register, although as my colleague from Virginia observed, our State has permanent registration.

The requirement in some States, for example, in New York, that voters register before each general election disqualifies far more persons than are disqualified in Virginia by our $1.50 poll tax. Yet the finger of scorn is pointed at Virginia and the four other Southern States which have a poll tax as though we were engaging in some immoral action. Nothing could be further from the truth.

Mr. STENNIS. Mr. President, will the Senator from Virginia yield for a question?

Mr. ROBERTSON. I yield for a question.

Mr. STENNIS. From the Senator's study of the Constitutional Convention, does he not believe that one of the most important considerations during the Convention related to the very strong debate on the question of the qualifications of electors and how they were to be de signa ted?

Mr. ROBERTSON. Absolutely. The Convention delegates knew that the question of determining the qualifications of voters was a tender one with each of the States. They deliberately left it within the State's power provided that no State could set a voter qualification for Federal officials which was different from those qualifications set for electors of the most numerous branch of the State legislature. That provision was clearly explained in the - State conventions. It was frankly admitted by many that the Federal Constitution would not have been ratified if there had been an attempt to impose uniform qualifications.

James :Madison and Gouverneur Morris thought, and not without some merit, that unless a man owned property or, at least, had income from it; he should not be permitted to vote. However, that proposal was rejected.

As . the . Senator from Mississippi has · stated, it was stressed that the power to determine voter qualifications was a cherished right of the sovereign States, they did not intend that the Federal Government should take it away from them.

Mr. STENNIS. Is it not true that article I, section 2 of the Constitution means that there can be no Federal qualifications for elector~? It does not mean that there can be anything such as a Federal test, does it? Does it not clearly show that the drafters of the Federal Constitution adopted State tests as the sole and only tests?

Mr. ROBERTSON. Absolutely; and time after time our · Supreme Court has held that, with the exception of the amendments relating to race and to sex, there are no Federal restrictions upon the States with respect to determining the qualifications of voters, except the requirement of article I, section 2 and the 17th amendment that the qualifications of voters in Federal elections shall be the same as for the most numerous branch of the State legislatures.

Mr. STENNIS. I am sure the Senator will recall that in the first debate on this subject after the Senator from Mississippi came to the Senate, the Senator from Virginia raised this point. Is it not true that in the Senator's research on qualifications, he has found that, after all, the poll tax came into being as one of the qualifications used by the various States as a liberalizing measure, as a milder . requirement than the demand of a property tax?

Mr. ROBERTSON. That is correct.

Mr. STENNIS. Or the ownership of property. Is not that true? /

Mr. ROBERTSON. Yes. Many of the states insisted on very large property holdings or on rent from very large property holdings.

Mr. STENNIS. Yes.

Mr. ROBERTSON. And some said, "A merchant who has a stock of goods, accounts payable, and all that, should be allowed to vote"; so merchants were allowed to vote.

Others said, "If a resident pays a mere poll tax, to show his interest in government, we will let him vote."

So, as I have stated, the poll tax was a liberalizing influence in some instances. My colleague from Virginia [Mr. BYRD] pointed out, this week, in his remarks on the Senate floor that from this tax more than $1,500,000 a year is obtained for the schools.

Mr. STENNIS. I thank the Senator from Virginia for yielding.

ENABLING LEGISLATION OVER POLL TAXES PREEMPTED BY COURT DECISION

Mr. ROBERTSON. Mr. President, Senate bill 478 and similar bills would make unlawful all poll taxes as a prerequisite for voting, presumably as a violation of the 14th or 15th amendment. On its · face, S. 478 would prohibit the Virginia poll tax as a prerequisite for voting. But the Court in its decision in the case of Butler against. Thompson above, has held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, . of the Constitution, and neither in its terms nor .in its application violates the 14th or 15th amendment. Senate bill '478 purports to make a congressional finding of a fact which the Supreme Court has held not to be a fact. It eXCeedS the pOWer of the Congress under the 14th or 15th amendment to enforce those · amendments by appropriate legislation.

REPUBLICAN FORM OJ' GOVERNMENT

Not more than passing attention need be given to argument based on section 4, article IV. This section provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Under this section it is contended that Congress may pass appropriate legislation under the necessary and proper clause to outlaw the poll tax, because it reduces the size of the electorate, therefore denying a republican form of government. It is added that this legislation will not be unconstitutional, since the Supreme Court historically has refused review of such a political question. The short answer to this approach is that the definition of a republican form of government may be found only by examining those of the States when they adopted the Constitution. Among the qualifications which prohibited universal suffrage were tax statutes, including poll taxes. I refer to the explanation of this section by Madison in No. 43 of the 1951. Federalist Papers. Moreover, such is the judicial interpretation in Minor against Happersett, at pages 175-176.

The poll tax proposals represent another attempt to transfer to the Federal Government a power which our forefathers, after great debate, determined must remain with the States. Today, authority is sought to prohibit one type of voter qualification. Tomorrow, authority may be sought to determine all. I do not accept the principle that the Federal Government is better qualified to determine voter qualifications for all citizens than is each of the individual States for its own citizens, nor do I believe that a strong central government is in our national interest if its strength must be acquired by a corresponding weakening of the sovereign States.

Mr. President, I have read into the RECORD the voting qualifications of the Thirteen Original States. I now hold in my hand a compilation of the present voting requirements of all the States in the Union at the present time. This compilation may be found in part 5 of · the supplemental hearings on Senate Joint Resoluti-on 58 and Senate Joint Resolution 81, concerning poll taxes, of August 25 and 30 and September · a 1961 when ' similar issues were under c~nsid~ eration in the hearings before a. subcommittee of the Judiciary Committee. Mr. President, I believe it pertinent to call attention to some of these voter requirements, in · order to show how varied they are in the different States.

Referring to them in alphabetical order I .shall start with the requirements in.Al~bama:

ALAllAJilA

Unless otherwise designated, references are to Code of Alabama, Recomp. 1959, and to the 1959 supplement thereto-title 17.

VOTERS' QUALIFICATIONS (CONSTITUTION OF ALABAMA 1901, AMENDMENT XCI TO SECTION

Age: 21 years.

Citizenship: Must be citizen of the United States.

Residence: 2 years in State, 1 year in county, 3 months in precinct or ward immediately preceding election (constitution of 1901, amendment XCVI to sec. 178).

Literacy: Must be able to read and write in English any article of the Constitution of the United States which may be submitted to him by board of registrars (also code sec. 32) . 1 Those persons who were registered as v.oters before 1903 are still qualified and need not register again (constitution of Alabama, amendment XCI to sec. 181).

Character: Must be of good character and embrace the duties and obligations of citizenship under the Constitution o! the United States and Alabama (also code sec. 32). Poll tax: Must have paid by February 1, next preceding election, all poll taxes due from him for the last 2 years (constitution of 1901, amendment XCVI to sec. 178).

Exemption: Blind and deaf persons and persons who honorably served in the military service of the United States during hostilities, are exempt from the poll tax payment as a prerequisite to voting (constitution o:r 1901, amendments XC (90) and CIX (109) ). 1 Prior provision, amendment No. 55, was declared to be unconstitutional-Davis v. Schnell (336 U.S. 933 ( 1949)). Present provision, amendment No. 91, was adopted in

DISQUALIFIED FROM VOTING · (CONSTITUTION 1901, SEC. 182.)

1. Idiots and insane persons. _

2. Those who by reason of conviction of crime were disqualified at the time of ratification of constitution of 1901. ·

3. Those who shall be convicted o! treason. murder, arson. embezzlement, malfeasan . ce J:n office . larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on wife, bigamy, living in adultery, sodomy, incest, :rape, miscegenation . crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude.

4. Any person who shall be convicted as a vagrant or tramp, vr of selling or offering to sell or buy his vote or the vote of another, or o! making or otrerblg to make a false :return in a general or primary election to proe\ll'e' the election or nomination Of any person to office, or of suborning any witness or registrar to secure the registration of any person as an elector.

REGISTRATION

Registration is permanent (code sec. 36) and must be made in person only (supp. sec. 31;codesec.27(1)).

Registration application: Applicant . ant shall fill out a questionnaire in his own writing, duly signed and sworn to, in the presence of the board of registrars, without assistance unless physically handicapped. Application is not a public record. If denied, must be preserved by board for ao days, :after which, if no appeal has been taken, they shall be kept with the records of the board or disposed of in such manner as the board may direct (supp. sec. 31).

Contents: The form and contents of the questionnaire shall be prescribed by the Supreme Court of .Alaba.ma and.filed with ibe -secretary of state.and shall be so worded that the answers will give the board of registrars the information necessary to pass upon the qualifications of the applicant - (constitution 1901, amendmend XCI; code supp. sec. Loyalty oath: Questionnaire shall contain an oath to support and defend . -the Constitutions of the United States and of Alabama, and a statement disavowing belief in or affiliation at any time with any group which advocates the overthrow of the Federal or State Government by unlawful · means (constitution 1901, amendment XCI; code supp. sec. 31). - other data: Applicant may be required to state under oath his name. addresses, and employers for the past 5 years (code, 1940, sec. 43 ' ).

PENALTY FOR VIOLATIONS -

Perjury: Any person, in registering, who willfully makes a false statement as to his name, address, or employment for the 1 last 5 years, or who falsely takes the registration oath, shall be guilty of perjury and shall be imprisoned in the penitentiary for not less than 1 year nor more than 5 years · (code, title 17, sees. 309, 323' • . 334; title 14, sec. 878). Illegal voting: A vote cast at a place other than the voting place at which the voter is entitled to vote shall be illegal (sec. 90 ( 3) ) . Any person who votes more than once at any election, or deposits more than one ballot for t . he same office . or knowingly attempts to vote when he · is not entitled to do so , or is guilty of any kind of illegal or fraudulent voting, shall be imprisoned tn the penitentiary for not less than 2 nor more than 5 years, at the discretion of the jury (see. 302) .

Voting without registration _ and oath: .A;ny person voting , at any county · or State election who has not registered and subscribed to the registration oath shall be fined from from $100 to $1,000 or imprisoned in the OF county jail, or sentenced to hard labor for the county for from 1 to 6 months (sec. 303). Unlawful registration: Any person who registers for another. or who knowingly registers or procures the registration of any person not possessing the qualifications of a voter, or who :register.s more than once shall be guilty of a felony punishable by imprisonment in the penitentiary for from 1 to 5 years (sec. 308).

There are 1 Y:z printed pages of laws under the constitution and on the statute books for just 1 of the SO States of the Union-Alabama-and one of the relatively minor provisions in the Alabama law relates to the poll tax, which the proposal we are discussing seeks to nullify.

The hearings to which I have referred contain 62 pages of State laws relating to the qualifications of voters. As I have said, that is more than 1 printed page for each State, containing State laws which, under the Constitution, . the States have legally adopted.

Now it is proposed to start taking away from the States the power to fix voter qualifications, and to confer that power on the Congress.

A 8 I h 'd M n.. "d t I h 11 ave shall • r. ~.teSI en • s a not encumber the RECORD with 62 pages of State voter qualifications. I have re­ !erred to " Alabama, which is a southern State, - for which the provisions took a page and a half. Now let us . review the voter qualifications of the most populous state in the Union, New York.

I was particularly interested in reading the qualifications of voters of New York, because the Senators of New York have been in - the forefront of those who have been complaining so bitterly about unfair restrictions:

VOTERs• QUALIFICATIONS

Age: 21 years on election day.

_ Citizenship: Must be U.S. citizen at least 90 days prior to election.

Residence: 1 year in State, 4 months . in county . city. or village, . e, SO days in election district next preceding the election.

Literacy: Unless. he became entitled to vote prior to January l, 1922, . must, in addition to above qualifications, be able to read and write English unless prevented by physical incapacity.

DISQ.UALIFIED FROM VOTING

1. Persons who shall pay or receive or offer to pay or receive money or thing o! value for giving or withholding a vote at an election, or for registering or refraining to. register as a voter, or who shall make any promise to influence the giving or withholding of any such vote or registration-

I ask Senators to listen to this disquali:fica tion:

[Persons who J • • • shall make or become directly or indirectly interested in any bet or wager depending on the result Q! an election shall not vote at such election.

Anybody in New York who bets on an election or who becomes directly or indirectly interested in such a bet, is disqualified from voting. The big bookmakers in New York quote the odds on a presidential election right up to election day; · but a person who bets is not allowed. to vote • . Paradoxical? Yes, indeed.

Nevertheless, Ule . State of New York has . the unqualified right . to put such a requirement in its law. I do not know of any other State which has such a requirement, and, as I say, State authorities apparently do not pay any attention to it, but Congress has no right to dictate otherwise.

I continue to read:

2. Pe:rsons convicted . of a. felony pursuant to laws o! New York shall not. have the right to register or vote at any election unless previously pardoned or restored to civil rights of citizenship by the Governor or unless awarded a certificate of good conduct granted by the boa;rd of . parole pursuant to the provisions of the executive la.w to remove the disability under the section because of such conviction . The · Governor, however, may attach as a condition . to any such pardon a provision that any such person shall not have the right o-r suffrage until it shall have been separately restored to him. 3. Persons convicted of a felony fn a Federal court if offense would constitute felony under laws of New York unless pardoned or restored to the rights of citizenship by the President of the United States .

4-. Persons convicted of a. felony in a Federal court for an offense of which such court has exclusive jurisdiction unless pardoned or restored to the rights or citizenship by the President of the United States. . es-.

5. Persons convicted in another' State for a crime which would constitute a felony under the laws of New York. unless, restored to the rights of citizenship by the . Governor or other appropriate authority o! such other State.

6. Persons who have been adjudged Incompetent or committed to a mental institution by Judicial authority unless thereafter adjudged competent or found to have recovered and discharged from the . institution.

REGISTRATION

Voter must :register m · person before every general election in cities o:r villages having 5,000 inhabitants or more.

T would conservatively estima.te that more people are prevented from voting in New York City by failing to - register every 2 years than are disqualified for failure to pay poll taxes in all the five Southern states which still have such a payment as a prerequisite for voting. That again, however, is the privilege of New York. We in Virginia. prefer permanent registration. It is more simple. It . is easier to enforce.

In election districts , outside of cities and villages of 5,000 or more inhabitants registration is permanent, subject to cancellation for failure to vote at a general election within a 4-yea:r period.

- Think of that · provision. In the small towns the registration is permanent . , . but if a person does not vote for 4 years he loses his registration.

I think that is a rather complicated provision ,. but if that is what New York wants, I say that is what New York has the right to have.

Mr. STENNIS. Mr. President. will the Senator yield for a question on the point he has made?

Mr. ROBERTSON. I yield.

Mr. STENNIS. Is it not true, with reference to any State having either one or more qualifications, conditions, or provisions as , to electors, that is - a matter for the State to decide. and so far as the qualifications for Federal electors are concerned, they are automatically adopted and accepted? · ·

Mr. ROBERTSON. The Senator is correct. As I say, I bold in my hands 62' pages of State laws dealing with qualifications of voters. The States have .. always had the right to set them, provided they do not discriminate as to race, color, sex, or previous condition of servitude, and provided . they do not require a different qualification for voting for a Federal officer from that required for voting for a member of the most numerous branch of the State legislature. In other words, the State can require anything it pleases. That has always been the right of the State.

As I said before, the Constitution would not have been ratified if it had not left to the States their right to :fix qualifications of electors.

Mr. STENNIS. I believe the Senator said there are 62 pages of such laws.

Mr. ROBERTSON. That is correct.

Mr. STENNIS. Is it not true that even though there are the 62 pages of qualifications, the proposal before the Senate relates to only 1?

. Mr. ROBERTSON. And a relatively . minor one. . .

Mr. STENNIS. A relatively minor one; and it applies to only a few States.

Mr. ROBERTSON. Yes. However, once the trend to Federal control begins, it is difficult to stop.

As I pointed out, the framers of the Constitution said at times the drive might be to liberalize the right to vote and at other times it might be to restrict the right to vote to the point of despotism.

If Congress can broaden voting qualifications, it can also restrict them until only a select few may vote. Then there would be a despotism.

Mr. STENNIS. Is it not true that already there is pending, not yet or: the calendar but before the Senate, a proposed statutory enactment?

Mr. ROBERTSON. I have heard that such a provision is to be brought up, dealing with the subject of a literacy test.

Mr. STENNIS. Is it not true that the records already show the Attorney General has advocated it, and the floor leader has introduced the bill and made the statement that it is the administration bill? Has not the procedure already gone that far?

Mr. ROBERTSON. Undoubtedly, but let us read some more about New York:

Veterans and their spouses, parents, or children, who are inmates of a veterans' bureau hospital in the State may be registered by inspectors of election who will call at the hospital. If the hospital is located outside the State, the signing of his name to an application for an absentee ballot by a veteran, spouse, parent or child of such veteran accompanying him shall constitute personal registration. A voter who expects to be unavoidably absent from his residence on the day of the next general election by reason of being in Federal service, a member of the Armed Forces, a teacher or student in an institution of learning outside the · county, or outside the county on business may register by mail.

Permanent registration. The city of New York, the city of Plattsburgh, the city of Watertown, and any country or any city of over 5,000 outside the city of New York may, by local law, elect to adopt a permanent registration system. In such cases registration shall be in person except for absentee veterans.

In the hearings from which I am reading, two printed pages are devoted to New York's voting restrictions. As I have said, there is hardly a State in the Union that has placed more ; restrictions on voting than has New York State. It so happens that New York State does not have a poll tax; and, therefore, its representatives are on safe ground in advocating the abolition of the poll tax in the :five Southern States which still have it.

In closing, I wish to emphasize that the right to vote is derived from citizenship of a State and not of the Nation. It is a privilege that is extended under certain conditions. As the Supreme Court has said, the Constitution conferred no right to vote upon anyone.

I think it is unfortunate in these days of stress, storm, and peril that we must stand here hour after hour debating the question of the preservation of the rights of the States and how important it is, if our . Republic is to survive, that we do not tear down these landmarks.

The Bible states:

Remove not the ancient landmark, which thy fathers have set.

This Biblical reference has a broad meaning. It warns us to hold dear the fundamental principles of ethics, morality, and principles . of government that were handed down to us by our forefathers and which have been tested by time. Our Constitution has survived many storms. It has been often tested, and under it we now have the oldest form of government of any nation in the world. Whether or not it will survive when our population becomes twice 185 million I do not know. Certainly it cannot survive if we fail to preserve the rights of the States as they were intended to be preserved in the Constitution and as they are specifically spelled out in the lOth amendment.

The right of a State to :fix the qualifications of its electors is the only right that is spelled out twice in the Constitution. Mr. President, we should be very zealous in maintaining that right. The Holland joint resolution should be rejected. I assume that when the poll-tax measure introduced by the Senator from New York [Mr. JAVITS], S.478, comes before the Senate, a motion will be made to lay that bill on the table. Naturally, I hope that motion will be carried.

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

Mr. ROBERTSON. I yield for a question.

Mr. STENNIS. I invite the attention of the Senator to one of the outstanding cases decided by the · Supreme Court of the United States, Ex parte Yarbrough, decided in 1884, and reported in 110 U.S. Supreme Court Reports, beginning at page 651, on the subject of the qualifications of electors. My question of the Senator is whether he thinks it is sound law and is still the law. I now quote from the opinion of the Court:

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 of 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 legislatures and the Constitution of the United States says the same persons shall vote for Members of Congress in that State. It adopts the qualifications thus furnished as the qualification of its own electors for Members of Congress.

Mr. ROBERTSON. The Supreme Court has consistently followed that opinion. The opinion was handed down more than 75 years ago and is as sound today as it was in 1884. It is still the law of the land. It has never been repudiated. .

Mr. STENNIS. Has not the principle been reaffirmed by constitutional amendment, which had to be proposed in Congress, passed by a two-thirds vote, and then adopted by the necessary threefourths of the States?

Mr. ROBERTSON. The Senator is correct. Ex parte Yarbrough was confirmed by Swafford v. Temple (185 U.S.), and later in Lassiter against Northampton County Board of Elections, when Justice Douglas passed on the question . Mr. President, there can be no question whatever about the clear meaning of the Constitution and about the interpretation given the language by those who wrote it and by the Court which interprets it.

Those who would change our Constitution regarding the qualifications of voters, are disputing both wisdom and tradition.

Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. KUCHEL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCARTHY. Mr. President, the poll tax should really be no subject for extended debate in 1962. It is a primitive and undemocratic · requirement . . It is the last vestige of old property-holding limitations on the right to vote. It should be quickly abolished.

I do not believe that there is any real support for the principle behind the poll tax. Even the amount of the tax is usually no problem in those places still requiring this tax, although in some places because of cumulative features in the tax, the amount might become a real barrier to voting.

I do not believe that a constitutional amendment is necessary to eliminate this tax. Simple legislative action is enough. But if it is impossible to enact legislation on this subject, then I believe that we should pass the constitutional amendment provided that section II denying the right to vote to persons supported at public expense or by charitable institutions is stricken from the bill.

Along with the consideration that the poll tax, which is an unwarranted obstacle to participation in full citizenship, there is another problem which deserves the attention of the Congress. This is the problem of residency requirements which in almost every State are a serious obstacle preventing millions of people from exercising the right to vote.

I am preparing a resolution asking for congressional study of this problem in the hope that procedures .. can be worked out so that 'Qy the use . ot absentee ~allots many of those who are currently deprived of the right to vote may have this right restored. ' It has been estimated by the U.S. Census Bureau and the American . Heritage Foundation that State or - local residency requirements prevented about · 8 million citizens from voting in the presidential election of 1960. Another 2,600,000 were traveling for . reasons . of business or · health · and were unable to obtain absentee ballots. Another 500,000 citizens were living or traveling abroad and were unable to vote in 1960. . This is a most serious problem and one which should be considered by the Congress of the United States.