March 22, 1962

Mr. ROBERTSON. Is it not true that in the Federalist it was made clear that the reason for inserting this provision in the Constitution, while leaving to the States exclusive jurisdiction, under section 2 of article I, on qualifications, was that it would enable Congress to say to the States, “You qualify the voters; you set up the voter lists; but we will tell you when we will have an election for Federal officials." Otherwise, it was felt the States might refuse to have an election for Federal officials.

· Mr. TALMADGE. That is correct.

Mr. ROBERTSON. The only purpose was to give Congress a little control, so as to create and perpetuate itself.

Mr. TALMADGE. That is entirely correct; because without that power, if the States had seen fit to do so, they could have refused to hold elections , and the National Government would thereby have died.

Mr. ROBERTSON. Mr. President, will the Senator from Georgia further yield for a question?

Mr. TALMADGE. I yield for a question.

Mr. ROBERTSON. Is it not also true that in the Yarbrough case, decided in 1884, and · confirmed in the Swofford case and all subsequent cases, it was held that the Constitution clearly left to the States the right to fix the qualifications of voters, provided restrictions were not imposed on the basis of race, previous condition of servitude, or sex, and provided restrictions were not imposed upon voting · for Federal officials which were different from those required for voting for the most numerous branch of the State legislatures?

Mr. TALMADGE. This is entirely correct .-

Mr. ROBERTSON. Have not the courts consistently held that?

Mr. TALMADGE. Nothing is clearer in American history and law than that the qualifications of voters shall be determined by the States. The National Government has merely adopted as the yardstick for voting for Federal officials the requirements which have · been adopted by the States. That has been true from the time of the formation of our Republic down to the present time. Now I shall read what the Supreme Court of the United States held in the case of Smiley v . Holm, 285 U.S. 355, 76 L. Ed. 795 (1932).

The Court specified some of the things which properly might be included within the term "manner," to wit:

The subject matter is the "times, places and manner of holding elections for Senators and Representatives."

It cannot be doubted that these comprehensive words embrace · authority to provide a complete code for congressional elections, not only as to times and places, but in relation _ to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.

In the constitutional debates, the discussion relative to article I, section 4, centered principally around the reference to "place and time." See 3 "Elliot ' s Debates," pages 60, 175, 366, 403-404; Id. volume 2, page 32.

Mr. Madison stated that this authority in Congress was necessary; and he gave several examples, all of which involved procedural matters-5 Elliot, pages 401- 402. See also 2 Elliot, pages 22-34; · 48- 49; 325; volume 4, page 104.

Mr. Steele, a delegate from North Carolina to the Convention, stated the issue very succinctly, viz:

Every man who has a right to vote for a representative to our legislature will ever have a right to vote for a representative to the general government. Does it not expressly provide that the electors in each State shall have the qualifications requisite for the most numerous branch of the State legislature? Can they, with a most manifest violation of the Constitution, alter the qualifications of the electors? The power over the manner of elections does not include that of saying who shall vote; the Constitution expressly says that the qualifications which entitle a man to vote for a State representative. It is, then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote, or by any other way ( 4 Elliot's Debates, p. 71).

In a disputed election case before Congress in 1842, it was declared that the purpose of article I, section 4, was to authorize Congress to act in case the States did not. It was pointed out that seven of the Thirteen Original States protested against this section, and it was finally approved with the understanding that Congress would act only where the States had failed to do so. 1 Bart. El. Cas. 47 (1842).

Mr. ROBERTSON. Mr. President, will the Senator ;from Georgia yield for a question?

The PRESlDING OFFICER (Mr. MET­

CALF in the chair). Does the Senator from Georgia yield . to the Senator from Virginia? . .

Mr. TALMADGE. I yield to my friend, the Senator from Virginia, for a question.

Mr. ROBERTSON. The distinguished Senator from Georgia is making it just as clear as can be what those who framed the Constitution said the year thereafter it meant.

Mr. TALMADGE. The able Senator is right.

Mr. ROBERTSON. But now, more than a century and a half after that event, we have an Attorney General and some Members of Congress who are trying to say it meant something different from what those who wrote it said, a year after they wrote it, that it meant. Is not that a fact?

Mr. TALMADGE. That is wholly correct. There is no clearer point in the history of American jurisprudence than the meaning of the provisions on voting in the National Constitution. But, Mr. President, as the distinguished Senator from Virginia knows, in recent years it has become very popular in some circles just before an election to create a strawman, slay him, and then point with pride to the body. That is the object of the contrived issue before us at the present time.

Mr. ROBERTSON. And is it not also a fact that, under the rules of the Senate, when we refer to this strange construction of the Constitution, we are not at liberty to explain exactly what is behind it all; under the rules of the Senate, protocol is required, and language unbecoming or impugning certain things is not permitted. In short, we cannot do that under the rules of the Senate, can we?

Mr. TALMADGE. Yes; the rules are clear on the point of raising questions of motive. However, I have no hesitancy in stating that we are considering a political issue. The junior Senator from Virginia knows it. The junior Senator from Georgia knows it. And I am quite certain those who bring forth legislation of this type know it, too.

Mr. ROBERTSON. Mr. President, let me say that the Senator from Georgia is making a very fine speech.

Mr. TALMADGE. I thank the Senator from Virginia.

Mr. President, similar views were ex· pressed by Hamilton in the Federalist, No. 59, where it was said:

It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed; that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the Convention. They have submitted the regulation of elections for the Federal Government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.

Nothing can be more evident, than that an exclusive power of regulating elections for the National Government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk.

From another standpoint, it is clear that article I, section 4, does not support the validity of S. 2750, insofar as it would illegalize literacy tests. The words "times, places and manner" appear in that sequence. "Times" and "places" are specific in nature, and precede the more general term "manner."

Consequently, under the rule of interpretation known as ejusdem generis, the meaning of "manner" is restricted by "times" and "places"-50 Am. Jur. 244, sec. 249. As stated in Cutler v. Kouns, 110 U . S. 720, 728, 28 L. Ed. 305 (1884) :

The rule of interpretation correctly stated is, that where particular words of a statute are followed by general, the general words are restricted in meaning to objects of like kind with those Epecified.

See also United States v. Salen, 235 U.S. 237, 59 L. Ed. 210 (1914), and Cleveland v. United States, 329 U.S. 14, 18, 91 L. Ed. 12 (1946).

Since "times" and "places" deal only with the physical or procedural aspects of an election, it is clear that "manner" must likewise be limited, and cannot ~e held to embrace such substantive matters as the qualifications of electors. To construe it otherwise would not only violate the rule of ejusdem generis, but likewise completely nullify so much of article I, section 2, and section 1 of the 17th amendment, as adopt the qualifications prescribed by State law. Even as to the original Constitution, that is, article I, section 2, all provisions must be construed so as to give effect to each, 50 Am. Jur. 361, section 358, and to harmonize all parts and avoid inconsistencies-50 Am. Jur. 367, section 363. To assert otherwise here would require that we go even further and assume that section 1 of the 17th amendment, although a later expression of the people than article I, section 4, was nevertheless subordinate to the latter.

The extent of congressional power is also indicated to some extent · ii by congressional interpretation thereof as evidenced by statutes enacted by Congress in the past. Some of these statutes are as follows: 2 U.S.C.A. 1, as amended, "Time for election of Senators, and certification of results’; 2 U.S.C.A. 2 and 2a, "Number, apportionment, and reapportionment of representatives"; 2 U.S.C.A. 3, "Election of Representatives by districts"; 2 U.S.C.A. 4, "Representative at Large following increase due to reapportionment"; 2 U.S.C.A. 5, "Nomination of Representative at Large"; 2 U . U.S.C.A. 6, "Reduction of representation following census"; 2 U.S.C.A. 7, "Time of election"; 2 U.S.C.A 8, "Vacancies"; 2 U.S.C.A. 9, "Voting by written, printed ballot, or voting machine"; 2 U.S.C.A., chapter 7, "Contest of elections"; 2 U.S.C.A., chapter 8, "Corrupt Practices Act." See U.S. v. Foote, 42 F. Supp. 717 (D.C. Del. 1942), upholding 2 U.S.C.A. 250, penalizing expenditures to influence voting, the Court predicating its decision on article I, section 4.

Mr. HILL. Mr. President, will the Senator yield?

Mr. TALMADGE. I yield for a question.

Mr. HILL. The Senator has cited a number of statutes enacted by Congress. Is it not a fact that in none of them whatever is there any attempt in any way, shape, or form, to cast any shadow of doubt upon the power of the States insofar as fixing the qualifications of of electors is concerned?

Mr. TALMADGE. The Senator is entirely correct; and in the history of the country, from the adoption of the Constitution down to the present time, Congress has not passed a single statute to prevent the States from determining the qualification of electors in any election.

Mr. HILL. In other words, Congress has recognized, from the beginning, from the adoption of the Constitution down to this good hour, that the matter of fixing the qualifications of electors was a power completely in the hands of the several States. Is that correct?

Mr. TALMADGE. The Senator is absolutely right.

See also title 18, United States Code Annotated, sections 591, and the following, defining penal offenses relative to elections, such as intimidation of voters-section 594-and expenditures to influence voting-section 597.

On the civil side, existing section 1971 (a), title 42, United States Code Annotated, designed to implement the 14th and 15th amendments, is limited entirely to discrimination based on race. Section 1971(b), quoted at the beginning hereof, deals exclusively with Federal elections, and while it, unlike paragraph (a), is not limited to State action or discrimination based on race, it does deal exclusively with the process or conduct of the election itself, in that it refers to “intimidation,” threats, or coercion.

So strongly has the matter of voter qualifications been considered a State function, that section 2003 of the Revised Statutes, title 42, United States Code Annotated, section 1972, provides: No officer of the Army, Navy, or Air Force of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order or otherwise, the qualifications q! voters in any State, or in any manner interfere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State.

As pointed out in Ex parte Yarbrough, 110 U.S. 661, 28 L. Ed. 274 (1884), and il) United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368 (1941) Congress can legislate so as to regulate the conduct of Federal elections so as to protect them against fraud, violence, . nce, and the like, even as against the acts of private individuals, but as stated in the Yarbrough case:

The importance to the General Government of having the actual election, the voting for those members, free from force and fraud is not diminished by the circumstances that the qualifications of the voter is determined by the law of the State where he votes (p. 663).

In the Classic case, in speaking of Congress authority under article I, section 4, it was said:

And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the 14th and 15th amendments, is secured against the action of individuals as well as of States.

At page 317, however, it was clearly stated that this authority was derived from article I, section 4, and see page 310, holding that the right to vote for Members of Congress is defined in article I, section 2, declaring that Representatives are to be chosen by the people, and so forth, subject to regulations prescribed by section 4.

At page 320, it was said:

Not only does section 4 of article I authorize Congress to regulate the manner of holding elections, but by article I, section 8, clause 18, Congress is given authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." This provision leaves to the Congress the choice of means by which its constitutional powers are to be carried into execution. "Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to that end which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional."

But in this respect, it is clear that the Court was referring to the process of the election itself, in the sense that unless Congress could regulate primaries, State law could in effect completely destroy Congress power under article I, section 4, by incorporating primaries into its election machinery to such an extent, as was done here, as to make the primary the real election and the general election only a formality. The Court obviously was not concerned with the substantive qualifications of electors.

In Christensen, "The Constitutionality of National Antipoll Tax Bills," 33 Minn. L.R. 217 (1949), the author declares that the States prescribe qualifications subject only to the 15th and 19th amendments, dealing with race and sex. He discusses the Classic case and concludes that at pages 307, 310, 314, the Court was saying that it is only the right of qualified voters-under State law-that is a national right.

Other cases have recognized Congress power as to Federal elections in similar terms. See Ex Parte Siebold, 100 U.S. 383, 25 L. Ed. 717 (1880) ; United States v. Gale, 109 U.S. 1, 27 L. Ed. 857 (1883); ; United States v. Munford, 16 F. 223 (c.c. Va. 1883); United States v. Mosley, 238 U.S. 383, 59 L. Ed. 1355 (1915); United States v. Belvin, 46 F. 381 (c.c. Va. 1891); Larche v. Hannah, 177 F. Supp. 816 (D.C. La. 1959), reversed, 363 U.S. 420, 4 L. Ed. 2d 1307 (1960); ; and of Logan v. United States, 144 U.S. 263, 36 L. Ed. 429 (1892).

On the other hand, Federal legislation governing State elections is limited by the 14th and 15th amendments to discrimination arising from State action, and Congress is powerless to legislate regarding State elections with respect either to private individuals, or interferences not concerned with race. Lackey v. United States, 107 F. 114, cert. den., 181 U.S. 621; United States v. Cruikshank, 92, U.S. 542, 23 L. Ed. 588 (1876) United States v. Harris, 106 U.S. 629, 27 L. Ed. 290 (1883); ; Baldwin v. Franks, 120 U.S. 678, 30 L. Ed. 766 (1887); ; United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 (1876).

Moreover, the mere fact that Members of Congress are also voted on in a State election confers no power on Congress to regulate the latter. Ex Parte Siebold, supra (100 U.S. at 393); Ex Parte Perkins, 29 F. 900 (c.c. Ind. 1887).

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

Mr. TALMADGE. I am delighted to yield to my friend from Mississippi for a question.

Mr. EASTLAND. Is it not apparent, throughout all the constitutional debates, that the foundation of this Government was the power of the people in the States to determine the qualifications of their own electors? Is it not true that our whole government is built upon that principle?

Mr. TALMADGE. The Senator is entirely correct. That is true not only with respect to the constitutional debates but also with respect to all Federal court decisions down to and including the present time. The qualifications of voters is a matter to be determined by the laws of the respective States.

Mr. EASTLAND. Is it not true that the proposal is a step toward federalization?

Mr. TALMADGE. There is no doubt about that. It would transfer power from 50 States to Washington, D.C. It would limit State power and increase Federal power. That is the purpose of the measure.

Mr. EASTLAND . . What would be the first step necessary in concentrating power and destroying the rights of the States?

Mr. TALMADGE. It would be necessary to change the system of voting so that the voters would be controlled on a national level.

Mr. EASTLAND. Is not the present system basic to our whole system of government?

Mr. TALMADGE. It certainly is. The power of a State to determine its electors cannot be denied without destroying of the right of all States to determine who shall elect their officials, both State and Federal.

Mr. EASTLAND. Does the Senator think that if the proposal is enacted it will be followed by others which would completely nationalize the voters?

Mr. TALMADGE. I am sure this is only the forerunner of a great many election-year proposals which will seek to transfer what few powers the States, counties, and cities have left to Washington.

Mr. EASTLAND. Is it not true, if that is done, the liberties of the American people will have been crushed?

Mr. TALMADGE. There is no doubt that the trend is in that direction and has been so for a number of years. Some people object to the exercise of governmental power in the city halls, county courthouses, and State capitols. Those people would like to see all the power transferred to Washington, D.C., and given to some bureaucrat who does not know the problems to say nothing of the solutions.

Mr. EASTLAND. Is it not true that the best custodian of liberty and the best custodian of the American system of government is the power of people in their own communities, speaking through their State governments, to control their local affairs?

Mr. TALMADGE. That is entirely correct. I could not agree more. When power is removed from the local level it is almost impossible for the average citizen even to have a right to be heard,-let alone to exercise that right.

Mr. EASTLAND. Can we ever have a dictatorship in this country when the power is exercised at the local level?

Mr. TALMADGE. No, we cannot. It is the greatest possible guarantee of a republican form of government. Whenever the power of government is transferred to one central level, it then becomes very easy for some dictator to take control of the machinery of government.

Mr. EASTLAND. Does the Senator think that this proposal is a direct attack on the American system of government?

Mr. TALMADGE. Certainly it is to the extent that it would substitute the regimentation of a central government for the right of local self-government.

Mr. EASTLAND. Is that not an at· tack on the present American system of government?

Mr. TALMADGE. I would say that it is an attack on the rights of States to determine who shall be their electors. It is also interesting to note that in the 1959 report of the U.S. Civil Rights Commission, Commissioners Hannah, Hesburgh, and Johnson recommended adoption of a constitutional amendment which would outlaw use of literacy tests. See report, page 143; 4 Race Rel. L.R. 791 (1959). It is significant that even such partisans who obviously favor abolition of literacy tests believe that a constitutional amendment will be required to accomplish it. Commissioners Storey and Carlton, who opposed the proposal, agreed in this respect, for they declared: On principle, proposals for constitutional amendments which would alter longstanding Federal-State relationships, such as the constitutional provision that matters pertaining to the qualifications of electors shall be left to the several States, should not be proposed in the absence of clear proof that no other action will correct an existing evil. No such proof is apparent ( 4 Race Rel. L.R., 793) .

S. 2750 is not appropriate legislation to enforce the 14th and 15th amendments.

Section 5 of the 14th amendment, and section 2 of the 15th amendment, authorize Congress to enforce those amendments by "appropriate legislation."

Under these amendments, Congress is limited to legislating against State action discriminatory in nature. Civil Rights cases, 109 U.S. 3, 13, 27 L. Ed. 835 (1883) ; Lackey v. United States, 107 F. 114 (c.c. Ky. 1901), cert. den., 181 U.S. 621; United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 592 (1876). In this respect, it is important to recall that Congress power under the 14th and 15th amendments is in a sense more restricted than its power to legislate as to the "manner" of Federal elections under article I, section 4. Under the latter, if the subject matter is legitimately concerned with the "manner" or conduct of the election process itself, Congress can legislate even as against private individuals, United States v. Classic, 313 U.S. 299, 315, 85 L. Ed. 1368 (1941), and such legislation is not limited to proscribing discrimination. United States v. Munford, 16 F. 223 (c.c. Va. 1883) ; United States v. Foote, 42 F. Supp. 717 (D.C. Del. 1942). Under the 14th amendment, however, Congress can legislate only so as to prevent discrimination, and under the 15th amendment, only as against discrimination based upon race or previous condition of servitude. United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 (1876).

Applying these principles, it necessarily follows that any effort by Congress to outlaw literacy tests cannot be predicated upon either of these two amendments. Literacy tests uniformly have been upheld as against claims that they constituted discrimination. Williams v. Mississippi, 170 U.S. 213, 42 L. Ed. 1012 (1898); Trudeau v. Barnes, 65 F. 2d 563 (CC5th 1933) ; Darby v. Daniel, 168 F. Supp. 170 (D.C. Miss. 1958) ; Wiliams v. McCulley, 128 F. Supp. 897 (D.C. La. 1955); Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 3 L. Ed. 2d 1072 (1959).

These cases are all in accord that the qualifications of electors is a State matter and only a State matter, and that the National Government must adopt the State yardstick for the qualification of electors to vote for Federal officers.

Therefore, since literacy tests do not constitute discrimination, they cannot be reached under either the 14th or 15th amendments.

Moreover, the proposition goes even further here. To upholdS. 2750 in this regard would require a holding that the general reference in these two amendments is sufficient authority for Congress to supersede the specific language of article I, section 2, remitting all questions of qualifications to State law, and that such authority is also paramount to similar, . ar, specific language adopted subsequent thereto in the 17th amendment. In other words, the Government necessarily must contend that despite the rule that the latest expression of the lawmaking body controls, the plain language of the 17th amendment cannot be given effect because of the enforcement clauses of ~he earlier 14th and 15th amendments.

While Congress has a wide choice in selecting means to implement its powers, United States v. Classic, 313 U.S. 299, 320, 85 L. Ed. 1368 (1941), the means sought to accomplish even a legitimate end must not be unreasonably broad, and may in no event themselves be violative of the Constitution. Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 (1961) Smith v. California, 361 U.S. 147, 4 L. Ed. 2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 2 L . Ed. 2d 1460 (1958). As an example, in the Shelton case, Arkansas had enacted a law requiring public school teachers to list annually all organizations to which they had belonged or contributed within the preceding 5 years. In striking down this . statute the Court recognized that a State has a legitimate interest in the fitness of its schoolteachers, and it was further recognized that the associational relationships of the teachers would have some bearing on this question. However, considering the adverse consequences likely to flow from disclosure of membership in certain organizations which the Court considered legitimate, that is, the NAACP, the Court held that the means selected by Arkansas were too broad to accomplish the legitimate end, which the Court said could be more narrowly achieved. It was said:

The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose. The less "drastic" alternative to outlawing literacy tests altogether is simply what is now being done, and that is to seek court relief against discriminatory administration of such tests, as was done in such cases as United States v. Alabama, 192 F. Supp. 677 (D.C. Ala. 1961), and Sellers v. Wilson, 123 F. Supp. 917 (D.C. Ala. 1954).

Nor is it any answer to say that the proof is difficult in such cases. This argument, if valid, could be used to justify legislation authorizing imprisonment without trial.

The whole problem simply gets back to the proposition that the Constitution adopts the qualifications of electors prescribed by State law. Legislation which would in effect abrogate the Constitution in this respect can hardly be called appropriate for any purpose.

Literacy tests are constitutional.

The earliest case is Williams v. Mississippi, 170 U.S. 213, 42 L. Ed. 1012 (1898), where a Negro indicted for murder in Mississippi moved to quash the indictment on the ground that under Mississippi law, qualification to serve on juries is dependent upon qualification as an elector, and as to the latter, Mississippi law imposed a literacy test and other procedures of such nature as to invite discrimination against the Negro race.

The holding of the Court denying this contention is summarized in the syllabus; namely:

The equal protection of the laws is not denied to colored persons by a State constitution and laws which make no discrimination against the colored race in terms, but which grant a discretion to certain officers, which can be used to the abridgment of the right of colored persons to vote and serve , on juries, when it is not shown, that their actual administration is evil, but only that evil is possible under them.

In Trudeau v. Barnes, 65 F. 2d 563 (C.C. 5th 1933), a Negro brought action against a Louisiana registrar to recover damages for refusing to register plaintiff because of his inability to read and interpret a clause of the Constitution, as required by State law.

The Court upheld the law, declaring that it violated neither the 14th nor 15th amendments, as it lays down but one test, that of intelligence, which is applicable equally to all.

In Tullier v. Giordano, 265 F. 2d 1 (C.A. 5th 1959), also involving the Louisiana literacy test, the Court declared: The qualification of voters is left to the several States subject to some limitations imposed by the U.S. Constitution.

The Court then enumerated these limitations as being article I, sections 2 and 4; article II, section 1 ; and the 14th, 15th, 17th, and 19th amendments. Reviewing the evidence, the Court concluded that while plaintiff was discriminated against in the registration process, it was not on racial grounds, and hence did not fall within Federal protection. The leading case today is Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 3 L. Ed. 2d 1072 (1959).

This case was an appeal from a threejudge Federal court, brought by a Negro seeking to have declared unconstitutional a provision of the North Carolina constitution imposing a literacy test as a requisite for voting, as being contrary to the 14th, 15th, and 17th amendments. At the outset, the Court, in a unanimous opinion by Douglas, disposed of a question concerning a "grandfather clause” in the same State constitutional provision, not pertinent to the present inquiry.

As to the literacy test, it was 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. The Court in Guinn v. United States, supra (238 U.S. at 366) , 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 in it not subject to our supervision, and indeed, its validity is admitted."

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, Pope v. Williams, 193 U.S. 621, 633, 48 L. Ed. 817, 822, 24 C. Ct. 573; Mason v. Missouri (179 U.S. 328,335,45 L. Ed. 214,220, 21 S. Ct. 125), absent, of course, the discrimination which the Constitution condemns. Article I, section 2, of the Constitution in its provision for the election of Members of the House of Representatives and the 17th amendment in its provisions for the election of Senators · rs 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 l e gislature." So while the right of suffrage is established and guaranteed by the Constitution (Ex. Parte Yarbrough, 110 U.S. 651, 663-665, 28 L. Ed. 274, 278, 279, 4 S. ct. 152; Smith v . Allwright, 321 U . S . 649, 661, 662, 88 L. Ed. 987, 995, 996, 64 S. Ct. 757, 151 ALR 1110), it is subject to the imposition of State standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed . See United States v. Classic, 313 U.S. 299, 315, 85 L. Ed. 1368, 1377, 61 S. ct. 1031. While section 2 of the 14th amendment, which provides for apportionment of Representatives among St a tes according to their re s pective numbers counting the whole number of persons in e a ch State (except Indians not taxed) , sp ea k s of the right to vote, the right prot e cted "refers to the right to vote as established by the laws and constitution of the State." McPherson v. Blacker, 146 U.S. 1, 39, 36 L. Ed. 869, 878, 13 S. Ct. 3.

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, 33 L. Ed. 637, 641, 642, 10 S. Ct. 299), are obvious examples indicating factors which a State may take . into consideration in determining the qualifications of voters. The ability 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. Dliterate 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. Cf. Franklin v. Harper, 205 Ga. 799, 55 S . E. 2d 22, app. dismd. 339 U.S. 946,94 L. Ed. 1361, 70 S. Ct. 804. It was said last century in Massachusetts that a literacy test was designed to insure an "independent and intelligent" exercise of the right of suffrage Stone v. Smith, 159 Mass. 413, 414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards (360 U.S., at pp. 50-53).

In footnote 7, the Court noted that 19 States now impose some sort of literacy test, including Georgia.

The Court noted, however, that literacy tests may be administered unfairly, or as held in Davis v. Schnell, 81 F. Supp . 1093, aff'd. 336 U.S. 933, they may be void on their face when they confer such broad discretion in their administration as to indicate, in the light of persuasive legislative history, that they were intended and calculated to be an instrument of discrimination.

It was concluded:

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 springes for the citizen. Certainly we c a nnot condemn it on its face as a device unrelated to the desire of North Carolina to raise the standards for people of all races who c a st the ballot (pp. 53-54).

Further consideration should be given to some of the cases cited by the Court.

The case of Guinn v. United Sttaes, 238 U.S. 347, 59 L. Ed. 1340 (1915), cited by the Court in the Lassiter case, concerned an indictment under what is now 18 U.S.O.A. 241, against Oklahoma election officials for having refused to permit Negroes to vote. The State law contained a so-called grandfather clause, whereby persons qualified to vote in January 1866, were automatically qualified to vote, whereas all other persons were required to undergo a literacy test.

The Court concluded that the grandfather clause itself was void as being contrary to the 15th amendment, in that it set up a discrimination based on race. But it was expressly held that the 15th amendment's grant of power as to racial di s crimination did not destroy the authority of the States over suffrage; namely:

(a) Beyond doubt the amendment does not take away 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 the division of State and National authority under the Constitution and the org a nization of both governments rest would be without support, and both the authority of the Nation and the State would fall to the . ground. In fact, · the very command of the amendment recognizes the possession of the general power by the State, since the amendment seeks to regulate its exercise as to the particular subject with which it deals.

Thus the authority over suffrage which the States possess and the limitation which the amendment imposes are coordinate and one may not destroy the other without bringing about the destruction of both (p. 362).

And again, at page 366:

No time need be spent on the question of the validity of the literacy test, considered alone, since, as we have seen, its establishment w a s but the exercise by the State of a lawful power vested in it, not subject to our supervision, and, indeed, its validity is admitted.

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

Mr. TALMADGE. I yield to the Senator from Mississippi for a question.

Mr. STENNIS. Does the Senator from Georgia think the following quotation from Willoughby, in "The Constitutional Law of the United States," pages 540 and 541, to which I call his special attention, is sound historically as well as l e gally on the important point he has been discussing:

A distinction is to be made between the right to . vote for a Representative to Congr e ss and the conditions upon which that right is granted • • • the right to vote is conditioned upon and determined by State law . But the right itself, as thus determined, is a Federal right. That is to say, the right springs from the provision of the Federal Constitution that Representatives shall be elected by those who have the right in each State to vote for the members of the most numerous branch of the State le g islature. The Constitution thus gives the right but accepts, as its own, the qualifications which the States severally see fit to e s t a blish with reference to the election of the mo s t numerous branch of their several St a te le g islatures.

To r e p e at my question: Does the Senator, from his learning and research, agree with th e soundness and substance of this quotation from Willoughby; and if he does not, why does he not?

Mr. TALMADGE. I heartily agree with the quotation cited by the distinguished Senator from Mississippi both as a wise governmental provision and as sound law. The almost identical language was used by the Supreme Court in both the Yarbrough and Happersett cases. Cooley in his "Limitations · on Constitutional Law" also uses almost the same quotation.

Mr. STENNIS. Is it not true that not only is the rule just expressed by the Senator from Georgia clearly spelled out in the Constitution; but that the whole soul and spirit that permeated the atmosphere at the time these provisions were finally agreed upon, as well as the history, as it has come down through the years and the decades, was that that principle would be left to the States, and that the States would make those decisions? Does not the Senator think that that principle should continue?

Mr. TALMADGE. Indeed, I do. In my opinion, there is nothing clearer than that. As the Senator from Mississippi, who is a capable historian, so well knows, our foreparents, who devised the dual system of government, knew that a delegation of power to the National Government was necessary for many things that could best be handled on the national level. Examples are the control of navigable streams, the operation of the postal service, the coining of money, and the administration of national defense. However, they determined toreserve for the States all powers not delegated to the National Government. I do not believe anything is more fundamental to local self-government or home rule than the right to say who shall or shall not vote.

Mr. STENNIS. Is it not true also, in keeping with both the rule and the spirit of the written Constitution, that it is highly probable that had not such an agreement been so clearly spelled out, the Constitution would never have been written and agreed to-certainly not at that time?

Mr. TALMADGE. The Constitution never would have been ratified had its framers demanded that the National Government have the right to determine the qualifications of voters.

Mr . STENNIS. Is it not also true that only a few days-perhaps 10 days or 2 weeks-before the Constitution was finally drafted, wise men like Benjamin Franklin and others, said it was probable that there would not be a Constitution?

Mr. TALMADGE. The Senator is entirely correct.

Mr. STENNIS. I thank the Senator from Georgia.

Mr. TALMADGE. As the Senator from Mississippi also knows, someone asked Ben Franklin, as he was leaving the Constitutional Convention, “What type of government have we, Dr. FrankFranklin replied, "A republic, if we can keep it."

Ben Franklin undoubtedly knew that erosion would set in against the Constitution if an effort were made to federalize the franchise and that was the reason he said, . "A republic, if we can keep it."

Mr. STENNIS. Then am I correct in judging, from what the Senator has said, that it is absolutely essential, if we are to maintain the Republic, to keep the fundamental law of the land?

Mr. TALMADGE. I could not . agree more with the Senator from Mississippi. I thank him for his interrogation and contribution to this discussion.

Mr. STENNIS. I thank the Senator from Georgia for yielding to me.

Mr. TALMADGE. Mr. President, the Government of the United. States has enacted nine civil and six criminal statutes guaranteeing the right of everyone to vote . In other words, Congress has enacted 15 statutes which are available to every citizen of the country to enforce his right to vote. Under some of the statutes passed b(Y Congress, the citizen does not even have to engage his own lawyer; the Attorney General of the United States will give him counsel at the taxpayers' expense.

If there is anything wh i ch Congress has made · abundantly clear, it is that every citizen of the United States is entitled to vote, provided he meets · the standards of the respective States to exerc-ise that right. It is clear that no further legislation is needed on that score.

Mr. President, when the Congress of the United States proceeds · to legislate in the field of voting, it must walk a point? narrow constitutional line.

The Constitution very clearly delineates between the responsibilities of the Federal Government and those of the State governments in this field, and there is an impressive and unbroken body of legal precedent sustaining that delineation.

Simply stated, the dividing lines between Federal and State responsibility for voting are these:

In all elections except those for President, Vice President, and Members of Congress, the State is sovereign within the limitations of the 15th and 19th amendments both as to voter qualifications and as to the times, places, and manner of holding the elections.

In all elections :for Members of Congress, the State is sovereign within the limitations of paragraph 1, section 2, article I . and the 15th and 19th amend ments as to qualifications and the Congress of the United States is sovereign as "to the times ~ places, and manner of holding the elections."

In all elections for President and Vice President, the State is sovereign as to the manner of selection and the places of meeting of the electors and the Congress of the United States is sovereign as to the times of their selection and meetThe controlling provisions of the Constitution in this regard are these:

Paragraph 1, section 2, article I:

The House of Representatives shall be composed of Members chosen every second year 'by the people of the sev e ral State s , and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the S t ate legislature.

Paragraph l, section 4, article I: -

The times, places, and manner o:r 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.

Paragraph 2, section 1, article II:

Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the St a te may be entitled in the Congress; but no Senator or Representative or person holding an office of trust or profit under the United States shall be appointed an elector.

Paragraph 3, section 1, article II:

The Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. Article XV:

The right of the citizens of the United States to vote shall n . not be. denied or abridged by the United States or by any State on ac:c . account . of race, c · color, or previous; condition of servitude.

Article XIX:

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 sex.

Mr. SPARKMAN ~ Mr. President, will the Senator yield for a . q:uestion at that

Mr. TALMADGE P I am delighted to yield to the Senator from Alabama.

Mr. SPARKMAN . I have listened carefully as the Senator has read those provisions in the Constitution. I wish to ask the Senator if those are the only instances in the Constitution in which this matter is discussed?

Mr. TALMADGE. That is correct .

Mr. SPARKMAN. l may say that was my understanding.

Is · it not true that when we speak of qualifications of voters, at no place in the Constitution is the qualification of voters treated with except as being within the jurisdiction of the States, save the two prohibitions contained in the 15th and 19th amendments.?

Mr. TALMADGE. The Senator is indeed correct. As the able Senator knows, article I, section 2', and also the 17th amendment provide that the qualifications of voters in Federal elections shall be the same as those provided for the most numerous branch of the . legislatures of the respective States. That is still the law at the present time. The only limitations thereon have been the 15th and 19th amendments, which permitted the newly freed slaves ta vote without discrimination and gave the right of the ballot to women.

Mr. SPARKMAN. If the Senator will yi e ld further for a question, is it not true th a t the first provision the Senator referred to, relating to qualifications for voters, was in the original Constitution?

Mr. TALMADGE. That is entirely correct .

Mr . SPARKMAN. Then the l~th amendment related to the election of Senators by direct vote.

· Mr. TALMADGE ~ That . is , right.

M:r. SPARKMAN. When the 1 'Zth amendment was written. it carried forward the identical provision :in the Constitution with reference to the qualification o.f electors. Is. that correct?

Mr . TALMADGE. The Senator , or has stated it accurately; and. so. far as I know, there a:re only two places in the Constitution where the identical language is u.sed verbatim _ That would indicate to me that the f.ramers of the amendment wanted that point nailed down for all time to come .

Mr. SPARKMAN. If the Senator will yield for one more question, I shall not impose on him further.

Mr . TALMADGE . I am delighted to yield for a question.

Mr. SPARKMAN. Is it not also a significant fact that when the o:riginal Constitution was drawn up 1 and. carried that · provision in it, it was not stating something new; it was simply safeguarding a right that already existed in the Original Thirteen Colonies, one the Colonies. insisted upon retaining, and not surrendering to the Central Government , just as they had enjoyed that , right all along; and there would not have been a Constitution on any other condition?' Mr. TALMADGE. ~ The Senator is entirely correct. As the . able . Senator knows, an effort was made in the Constitutional Convention to require uniform voting qualifications throughout the 13 States . That effort met great objec . tion, and it was rejected for the provision that is in the Constitution at the present time.

Had they not reached agreement on the yardstick of State standards, there would not have been a Constitution to ratify.

Mr. SPARKMAN. If the Senator will yield for one more time, I referred to the Colonies. Of course, at . the time of setting up the Constitution , they · were States under the Articles of C'onfedera . ­ tion. Naturally, under the Colonies, each Colony was supreme within its sovereignty, and it remained so until after the Articles of Confederation. The Colonies gave a certain amount of power to the Confederation of . States. Then later o~ those States gave a certain amount of sovereignty · to the Central Government; but the matter of qualification of voters was one thing that was never surrendered, and any thought of surrendering that power was contested by the representatives of the several States in the Constitutional Convention. Is · that correct?

Mr. TALMADGE. Yes. I earlier pointed out that while Congress has passed 15 statutes . 6 criminal and 9 civil, guaranteeing the . right to vote; it has never attempted to . enact any statute to determine the qualifications of electors.

Mr. SP'ARKMAN. I: thank the Senator.

Mr. TALMADGE. I thank the able Senator from Alabama . for his contribution.

Mr. President, it should be clear beyond all misunderstanding to all who understand the English language that those provisions mean that the States have exclusive power to fix voter qualifications within certain limitations and the Federal Government can police those qualifications only to the extent of those limitations.

And those limitations are that voter qualifications prescribed by a State cannot deny or abridge the right of anyone to vote on account of race, color, previous condition of servitude, or sex, or differentiate in any way between those who vote for members of the most numerous branch of the State legislature and those who vote for Members of the U.S. House of Representatives.

Outside of those specified limitations, Mr. President, the Federal Government has the last word only with respect to when, where, and how elections for Members of Congress are held and when presidential electors are selected and meet to cast their votes.

To those who would contend otherwise, the unanswerable answer is that the only two instances in which restrictions have been placed upon the discretion of the States to fix voter qualifications have in both cases had to be accomplished through the amendatory process.

Congress has no more power under the Constitution to legislate in the field of voter qualifications, outside the authority to implement existing amendments and to submit proposed new amendments for ratification or rejection by the States, than it does to change the boiling point of water from 212° to 150° F. Mr. President, I submit that there is no historical fact more clearly documented than that that the original States of this Union definitely understood that each State would have the guaranteed authority under the Constitution to fix the qualifications of the electors of the most numerous branch of its legislature and that those electors would be the same electors who name the Members of Congress. While it is true that Congress under the Constitution has final authority over the times, places, and manner of holding elections, no exercise in semantics can get around the fact that the determination of voter qualifications is inherent in the registration process and registration consequently is an exclusive State function.

That this also was the understanding of succeeding Congresses throughout the years of our existence as a nation is evidenced by the facts that the 17th amendment providing for the direct election of Senators brought forward the identical language of paragraph 1, section 2, article I, and that the two limitations since placed upon this guarantee were accomplished by constitutional amendments-the 15th and the 19th.

Those who would upset this balance of power which has served our Nation so well for these 170 years of its existence attempt to read into other sections of the Constitution meanings which are not there either by content or implication. There are those who claim authority to work their will through the combined provisions of paragraph 1, section 4, and paragraph 18, section 8 of article I.

The former, which I previously have cited, vests ultimate authority over the "times, places, and manner of holding elections" in Congress. The latter empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."

They like to cite the dictum contained in the case United States v. Classic (313 U.S. 299) as sustaining their contention. Let us examine it and see for ourselves whether that is the case.

The Supreme Court in its ruling written by Mr. Justice Stone said:

While, in a loose sense, the right to vote for Representatives in Congress is sometimes spoken of as a right derived from the States, see Minor v. Happersett • • • this statement is true only in the sense that the States are authorized by the Constitution, to legislate on the subject as provided by section 2 of article I, to the extent that Congress has not restricted State action by the exercise of its powers to regulate elections under section 4 and its more general power under article I, section 8, clause 18, of the Constitution "to make all laws which shall be necessary and proper for carrying into ex . execution the foregoing power." They fail to mention the fact that Mr. Justice Stone also declared in that same decision, as follows:

Such right as is secured by the Constitution to qualified voters to choose Members of the House of Representatives is thus to be exercised in conformity to the requirements of State law subject to the restrictions prescribed by section 2 and to the authority conferred on Congress by section 4, to regulate the times, places, and manner of holding elections for Representatives.

Nor do they go on to quote his further assertion that:

Pursuant to the authority given by section 2 of article I of the Constitution, and subject to the legislative power of Congress under section 4 of article I, and other pertinent provisions of the Constitution, the States are given, and in fact exercise, a wide discretion in tl;le formation of a system.

Mr. President, I have pointed out repeatedly in my remarks that the provisions of the Constitution and the decisions of the courts, both Federal and State, have repeatedly held that the qualifications of electors is a matter to be determined by the respective States. Congress has passed many statutes, both civil and criminal, to guarantee to . every citizen the right to vote. No further legislation is necessary to carry out those provisions. The laws are being enforced in the Federal and State courts, to guarantee to every citizen the right to vote in this land of ours. No legislation is needed. None is necessary. None is desirable.

Mr. President, I challenge anyone to show this Senate where in the Constitution of the United States any general power is given to Congress, either expressly or by necessary implication, to say who shall be qualified to vote in the elections of any State.

Such authority simply does not exist and cannot exist, Mr. President, until an amendment purporting to grant it is submitted by two-thirds of the Members of both Houses of Congress and ratified by three-fourths of the legislatures of the 50 States.

Mr. President, I turn now to the question pending before the Senate and to the proposal which the Senator from Florida [Mr. HoLLAND] has announced he will offer as an amendment, if the Senate makes the joint resolution relating to the preservation of the home of Alexander Hamilton the pending business of the Senate.

Mr. President, I shall vote against the proposed amendment, not because I favor the poll tax, but, rather, because I feel quite strongly that the question of whether such a tax should be levied is one which properly addresses itself to each individual State.

I do not object to any particular State removing the poll tax. As a matter of fact, my State of Georgia did so in 1945. The results have been good, and the people of Georgia have had no reason to regret the change.

However, Mr. President, let me emphasize that Georgians would not presume to advocate or recommend that other States should do what has been done in our State in eliminating the poll The people of Georgia believe the framers of the Constitution of the United States were correct in reserving to each _ State the power to determine voter qualifications, and they feel that anything which dilutes or circumscribes that right results in a weakening of our cherished Federal-State system and the timeproven constitutional checks and balances which serve to preserve it and keep it vital.

In a nation so vast and diverse as ours, it is impossible to prescribe uniform rules which will serve the best interests of all States. Attitudes, conditions, and circumstances vary from State to State, and it must be recognized that what is good for one State is not necessarily good for all other States. On questions such as the one - under consideration, for example, it is possible for two neighboring States to have totally opposite views, and yet both be correct.

Mr. President, the proposed amendment is another example of the alarming trend to substitute compulsion from Washington for the wisdom and good judgment of the elected representatives of the people serving in their respective State legislatures. I submit that the experience of the past has proved that it is impossible to enforce from the national level conformity of human thought and action, and that compulsion is not an answer to any question embracing public policy and governmental philosophy.

The question of whether a poll tax should be required as a prerequisite for voting is one which should be answered by each legislature.

Mr. President, if I were a member of the Legislature of the State of Maine, I do not think I would vote for a bill which would require a poll tax to be levied upon each individual citizen as a prerequisite to the use of the highways of that State. But, Mr. President, as the junior Senator from Georgia, I do not think I have a greater degree of wisdom than the collective judgment of the members of the Legislature of the State of Maine; and I would not come to the U.S. Senate, as a representative of the State of Georgia, and propose a . constitutional amendment which would provide that the State of Maine could not levy a poll tax as a prerequisite to the right to drive an automobile on the highways of Maine. It is presumed that the members of the General Assembly of the State of Maine have a greater degree of judgment as to their own affairs than has the Senator from Geor­ _ gia; and if the people who reside within the State of Maine do not like the way their - legislators handle their business, their remedy is at the ballot box in that State. . The poll tax is an issue with which State legislators are better acquainted and, therefore, better qualified to deal. I, for on~. intend to vote to leave it in their able hands . .

I will say, Mr. President, that I consider it to- the credit of Congress that it has at last recognized that a proposed constitutional amendment is the only constitutional vehicle through which it can act on this subject. I hope the consideration of this question in the form of a constitutional amendment will serve as a precedent for any other proposals for congressional action in the field of voting.

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

Mr. MANSFIELD. Mr. President, will the Senator · withhold that suggestion, and yield the floor?

Mr. TALMADGE. Mr. President, I terminated. withhold my suggestion of the absence of a quorum and I yield the floor at this time, for the consideration of a conference report.

. Mr. MANSFIELD. Mr. President, h~ the Senator from Georgia yielded the floor?

Mr. TALMADGE. I have yielded the · floor.