March 23, 1962 (2)

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

Mr .. ERVIN. Mr. President, I shall not discuss at any great length the proposal to abolish the poll tax as a prerequisite to voting in Federal elections. My comments on the joint resolution will be few. In view of the fact that only 5 of the 50 States of the Union have a poll tax as a prerequisite for voting, I am constrained to say that in my judgment a great deal of time is being spent on an exceedingly small matter.

I am reminded of the time that some of my friends in my home county of Burke in the State of North Carolina went fox hunting. About 15 or 20 of them gathered together on the occasion with all their fox hounds and embarked on a fox hunt. The dogs struck a trail and followed the trail over virtually all the county. At long last the fox hounds managed to run down a scrawny and mangy little fox, and one of the fox hunters remarked that it was the longest chase for the poorest hide that he had ever seen.

There are some who oppose a poll tax as a prerequisite for voting because they think that laws imposing such a poll tax disenfranchise someone.

That argument reminds me of an occasion when I was privileged to hold court in Clay County, N.C., in my then capacity as a superior court judge. I often think of that case because the prosecuting attorney, who bore the title of solicitor in our legal usage, was John Queen. He was one of the most unusual characters I have ever known. John had a boy about 19 or 20 years old indicted for disturbing religious worship. It turned out that the religious body whose worship was allegedly disturbed was . composed of members of a sect which we call the Holy Rollers. Several members of the congregation who were attending the service under a tent testified for the State to the effect that the boy had come into the meeting and had danced and shouted. After introducing evidence to that effect, John Queen rested the State's case. I asked the boy, who had no attorney, if he desired to testify. He informed me that he did. Thereupon the clerk administered to him the oath of a witness, and the boy took the witness stand.

He testified that he did not disturb that meeting; that the meeting disturbed itself. He said he was walking along the road about three-quarters of a mile a way and he heard a great deal of shouting and hollering going on down at that tent. He said, "I'm a person of a great deal of curiosity. So I went down there to the tent to see what was going on. Some of the Holy Rollers were rolling over · and over, and the rest of . them were dancing , and shouting. I joined the crowd that was dancing and shouting. I didn't disturb that meeting. The meeting disturbed itself."

The statutes which impose the poll tax as a prerequisite for voting do not disfranchise anyone. The people who refuse to pay their poll tax · disfranchise - themselves. They are like the Holy Rollers: they bring the trouble on themselves.

I have found myself totally incapable of shedding any crocodile or political tears over the loss to the country of the votes of people who do not care enough about voting to pay $2 or $2.50 or $3 a year to the support of the Government which educates their children, which gives them highways to ride over, , and which secures to them such valuable things as due process of law.

I venture the suggestion that none of these people fail to pay the poll tax because of their poverty. I assert that in all human probability, if we were to go to the home s of a n y of these people we would find the automobiles sitting in their yards and a television aerial sticking out of the top of their houses.

My State abolished the poll tax as a prerequisite to v o t i ng 40 years ago. I must confess that I would be som e what gratified if the five States which still retain a poll tax as a p r erequisite to the right to vote would abolish the tax as far as it re l ates to the ex e rcise of the franchise. Such action by these States would eliminate a pretext, which is seized upon to make a whippi n g boy out of these five Southern States, by those persons and organizations who find it emotionally enjoyable or financially profitable or politically advantageous to berate the South or any part of the South.

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

Mr. ERVIN. I am glad to yield to the able and distinguished junior Senator from Virginia for a question.

Mr. ROBERTSON. Is it not a fact that the issue presented to us is far larger than merely the poll tax in five States? Does it not go to the right that John Steele, the great statesman of the State of North Carolina, in addressing the ratifying convention in North Carolina referred to when he said, "You have the right to fix the qualifications of the voters in your State"?

Mr. ERVIN. The Senator from Virginia is certainly correct in his position. As a matter of fact, while I wish that the five States would abolish the poll tax, in order to put an end to the use of it for the purpose of raising a hue and cry by the groups I have mentioned, I expect to vote against the resolution, because I believe the power to prescribe the qualifications for voters was correctly reposed in the States at the time the great Virginian, George Washington, was inaugurated as President of the United States. It has resided there ever since, and, in my judgment, it is one of the checks and balances put in the Constitution by the Founding Fathers to make certain that the Republic would endure.

Mr. ROBERTSON. Mr. President, is it not also true that Congress has always recognized that fact, not only when it proposed the 17th amendment, which reaffirmed what was in section 2 of article I of the Constitution, but also when it proposed the amendment which provided that the · vote shall not be denied to a man because of his race, color, or previous condition of servitude, or when it adopted the proposed amendment to provide that no person shall be denied the right to vote because of sex; and in that way did they not recognize the fact that the States have the right to fix the qualifications unless the Constitution is changed?

Mr. ERVIN. As . the Senator from Virg i ni a has so w ell pointed out, when the Congress and the States adopted the 15 t h and ~ 9th amendments, they recognized e d that the Constitution of the United States vested in the States the power to prescribe the qualifications of voters for Senators and Representatives, and that that power could not be taken away f r om the States except through the process of a constitutional amendment.

Mr. ROBERTSON. Did the distinguished h ed Senator from North Carolina read in the press this morning that certain leftwing groups, such as the Ameri c ans for Democratic Action and the NAACP, and so forth, are opposed to the Holland constitutional amendment because it is too slow and cumbersome. and t ha t h t ey want congressional action, constitutional or unconstitutional?

Mr. ERVIN. Unfortunately I did not have an opportunity to read the newspaper this morning. I do know that there are in this country certain intemperate and impatient organizations and, I might add, individuals who are not willing to allow any problem to remain un s olved before another setting of the sun; consequently; they demand that the problem be solved even if it must be solved in violation of the clearest provi s ions of the Constitution.

Mr. ROBERTSON. Are these leftwing organizations which are urging the taking of! of r e strictions so far as voting is concerned the same organizations t h at used to be known as tax-and-taxand-spend -and -spend organizations?

Mr. ERVIN. The Senator has named one organization whose fulminations I do not read with great care. But, I have read some things which have intimated that it adheres to the economic theory that the more a person spends of what he hasn't got the richer he will be.

M r. ROBERTSON. That is the point I am asking the Senator about. Is it not true that the Founding Fathers thought that the right of suffrage should be limited to those who had some stake in the spending of the money, and therefore all of the 13 States but one had some kind of property qualification for voting?

Mr. ERVIN. The Senator is certainly stating a historic fact.

Mr. ROBERTSON. Is it not true that now the whole trend is to take away qualifications, to take away property qualifications, even if it is only $1.50, and to take away intelligence tests, and to let everyone vote? Does that not lead to a freewheeling spending program which will carry us, in the end, to bankruptcy?

Mr. ERVIN. Unless a halt is called to it.

Mr. ROBERTSON. Well, they will beat all the conservatives they can if they get enough voters qualified in this way. Anyone who wants to vote against spending is called a reactionary; is not that the attitude?

Mr. ERVIN. As I stated to the Senator a while ago, I do not know much a b out their a t titude except as it is exp r e s sed in a few statements which h a ve been issued and which I have read. T h ey cer t ainly do assert the economic theo r y t h at the more we spend of what we do n o t have, the richer we shall be; and the more money we shall have to appropriate. a te.

I remember saying that all of them advocate what some people call the modern economic theory. But it is not a modern economic theory. They advocate the expenditure of everything we have , and of putting a mortgage on all our future; and then they want to leave a large debt for unborn generations of American taxpayers to pay.

They remind me of the time in the B r itish Parliament, about 50 or 60 years ago, when a member proposed a big bond issue under a bill which provided that no repayment of principal would be made for 50 years. Another member, having sound judgment on such matters, like the junior Senator from Virginia [Mr. RoBERTSON], rose and said the bill was not fair to posterity. Still another member of Parliament rose and said, "Posterity has never done anything for me, so I do not propose to do anything for posterity. Furthermore, posterity cannot vote in the next election. [Laughter.]

So I should say that the group of whom the Senator is speaking, who advocate vast expenditures, not only are opposed to the conservatives, but seem not to have any love for posterity.

Mr . ROBERTSON. Mr. President, if under the rules I were permitted to do so, I would commend the answer given to me by the distinguished Senator from North Carolina.

Mr. ERVIN. Mr. President, I wish to address my remarks principally to three bills, which are designated respectively as S. 480, S. 2750, and S. 2979. These bills undertake to do two things: First, they undertake to abolish or nullify the statutes of about 21 States which prescribe literacy tests; second, they propose to substitute for the abolished or nullified statutes a Federal standard or a Federal literacy test.

I wish to say something rather drastic about these bills, but I want to do so in the gentlest and sweetest fashion possible. The bills contain many remarkable provisions. The most remarkab l e thing about them, however, is this: They offer the Senate the very finest opportunity it has ever had to act in an exceedingly foolish manner. Let me explain why I make this drastic assertion as gently and as sweetly as possible.

When one reads the statutes of the 21 States which ha v e es t ablished literacy tests, in the light of the Constitution and of the decisions of the Supreme Court of the United States construing the Constitution on this point, it is as clear as the noonday sun that all of the statutes establishing the literacy tests conform strictly to section 2 of article I of the 17th amendment. These constitutional provisions declare in as simple words as can be found in the English language that the only persons eligible to vote for Senators and Representatives are those persons in a State who have the qualifications requisite for voting for the electors of the most numerous branch of the State legislature.

These three bills undertake to nullify the statutes of the 21 States which prescribe literacy tests, and they seek to do it on a peculiar ground. They say that those statutes are arbitrary, unreasonable, and unconstitutional, even though the statutes comply strictly with the Constitution. That being true, these bills assert, in the final analysis, something which has never before been asserted, so far as I know, in any bill presented to Congress; namely, that the Constitution is unconstitutional.

Mr. President, in order that Members of the Senate may have an opportunity to examine the bills, I ask unanimous consent that the text of S. 480, S. 2750, and S. 2979 be printed at this point in the RECORD.

There being no objection, the bills were ordered to be printed in the RECORD, as follows:

s. 480

A bill to prohibit the application of unreasonable literacy requirements with respect to the right to vote

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the Congress finds that the right to vote is fundamental to free, democratic government and that it continues to be the responsibility of all Federal Government to secure and protect this right against all unreasonable and arbitrary restrictions.

(b) The Congress further finds that the right to vote of many persons has been subjected to arbitrary and unreasonable restrictions on account of race or color; that tests of literacy have been used . extensively as a device for arbitrarily and unreasonably denying the right to vote to otherwise qualified persons on account of race or color; and that laws presently in effect are inadequate to assure that all qualified persons shall enjoy this essential right without discrimination on account of race or color.

(c) The Congress further finds that illiteracy is rapidly disappearing in the United States; that the quality of elementary education furnished by the Nation's schools is of high caliber; that persons completing six grades of education in a State-accredited school can reasonably be expected to be literate; that a literate electorate can be assured by affording the right to vote to any otherwise qualified person who has completed six grades of education; and that any test of literacy that denies the right to vote to any person who has completed six grades of education is arbitrary and unreasonable. (d) The Congress, therefore, further finds and declares that the enactment of this Act is necessary to make effective the guarantees of the Constitution, particularly those contained in the fourteenth and fifteenth amendments, by eliminating or preventing arbitrary and unreasonable restrictions on the franchise which occur through the denial of the right to vote to persons with at least six grades of education and which exist in order to effectuate denials of the right to vote on account of race or color.

SEc. 2. Subsection (a) of section 2004 of the ReVised Statutes (42 U.S.C. 1971), as amended, is further amended to read as follows:

"All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude, and without subjection to any arbitrary or unreasonable test, standard, or practice with respect to literacy; any constitution, law, custom, usage, or regulation of any State or territory, or by or under its authority, to the contrary notwithstanding. 'Arbitrary or unreasonable test, standard, or practice with respect to literacy' shall mean any requirement designed to determine literacy, comprehension, intelligence, or other test of education, knowledge, or understanding, in the case . of any citizen who has not been adjudged an incompetent who has completed the sixth primary grade in a school accredited by any State or by the District of Columbia."

S. 2750

A bill to protect the right to vote in Federal elections free from arbitrary discrimination by literacy tests or other means

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) Congress finds that it is essential to our form of government that all qualified citizens have the opportunity to participate in the choice of elected officials.

(b) Congress further finds that the right to vote in Federal elections should be maintained free from discrimination and other corrupt influence.

(c) Congress further finds that many persons have been subjected to arbitrary and unreasonable voting restrictions on account of their race or color; that literacy tests and other performance examinations have been used extensively to effect arbitrary and unreasonable denials of the right to vote; and that existing statutes are inadequate to assure that all qualified persons shall enjoy the right to vote.

(d) Congress further finds that education in the United States is such that persons who have completed six primary grades in a public cchool or accredited private school cannot reasonably be denied the franchise on grounds of illiteracy or lack of sufficient education or intelligence to exercise the prerogatives of citizenship.

(e) Congress further finds that large numbers of American citizens who are also citizens of the several States are deprived of the right to vote by virtue of their birth and . education in a part of the United States in which the Spanish language is commonly used; that these citizens are well qualified to exercise the franchise; that such information as is necessary for the intelligent exercise of the franchise is available through Spanish-language news sources; that lack of proficiency in the English language provides no reasonable basis for excluding these citizens from participating in the democratic process.

(f) Under article I, section 4 of the Constitution; section 5 of the fourteenth amendment, and section 2 of the fifteenth amendment; and its power to protect the integrity of the Federal electoral process, Congress has the duty to provide against the abuses which presently exist.

SEc. 2. Subsection (b) of section 2004 of the Revised Statutes (42 U.S.C. 1971) is amended to read as follows:

"(b) No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such person to vote or to vote as he may choose in any Federal election, or subject or attempt to subject any other person to the deprivation of the right to vote in any Federal election. 'Deprivation of the right to vote' shall include but shall not be limited to (1) the application to any person of standards or procedures more stringent than are applied to others similarly situated and (2) the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such other person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico. ·

"'Federal election' means any general, special, or primary election held solely or in part for the purpose of electing or select· ing any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegate, or Commissioner from the territories or possessions."

SEc. 3. If any part or provision of this Act is held invalid, all other parts or pro· visions shall remain in effect. If a part or provision of this Act is held invalid in one or more of its applications, the part or provision shall remain in effect in all other applications.

s. 2979

A bill to further secure and protect the rights of citizens to vote in Federal and State elections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Federal Voting Rights Act of 1962" . .

VOTER QUALIFICATIONS

SEC. 2. (a) The Congress hereby finds-

( I) that qualifications prescribed by State laws for voting, or registering to vote, in Federal and State elections, other than qualifications based upon age, residence, freedom from confinement, and freedom from conviction of a crime, are susceptible of use, and have been used, to deny citizens the right to vote, because of their race or color;

(2) that the enactment of this section by the Congress is necessary and proper to carry out the powers conferred upon it by section 5 of the fourteenth amendment and by section 2 of the fifteenth amendment to the Constitution of the United States.

(b) Except as provided in section 3 of this Act, the right of citizens of the United States to vote, to register or otherwise qualify to vote, and to have their vote counted in any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, or presidential elector, for the office of Member of the Senate of the United States or Member of, · or Resident Commissioner in, the House of Representatives of the United States, or for any office established by or under the constitution or laws of any State shall not be denied, abridged, or interfered with by the United States or by any State for any cause except for the following reasons, uniformly applied within the State and its political subdivisions to all persons:

( 1) inability to meet reasonable age requirements;

(2) inability to meet reasonable requirements as to length of residence within the State and its political subdivisions;

(3) legal confinement at the time of the election or registration; and

(4) conviction of a felony.

LITERACY TESTS

SEC. 3. In any case in which, under the laws of any State, any literacy test or any other test designed to assure a person's ability to read and understand is administered in order to determine whether a person is qualified to vote, or to register to vote, in any general, special, or primary election held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, or presidential elector, for the office of Member of the Senate of the United States or Member of, or Resident Commissioner in, the House of Representatives of the United States, or for any Office established by or under the constitution or laws of such State, the successful completion of six or more grades of formal education by such person shall satisfy all the requirements of any such test.

DEPRIVATION OF RIGHT TO VOTE THROUGH ARBITRARY ACTION OR INACTION

SEc. 4. Subsection (b) of section 2004 of the Revised Statutes, as amended (42 U.S.C. 1971) , is amended by adding at the end thereof the following new sentence: "No person, whether acting under color of law or otherwise, shall by arbitrary action, or by arbitrary inaction, deny, abridge, or interfere with, or threaten to deny, abridge, or interfere with, the right of any other person to vote, or to register to vote, and to have his vote counted for any candidate for any office enumerated in the preceding sentence at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate."

COMPILATION OF REGISTRATION AND VOTING STATISTICS

SEC. 5. (a) The Director of the Census shall, as soon as possible after the enactment of this Act, compile comprehensive information and statistics relating to the registration of voters in each State and the number of registered voters in each State who vote 1n elections held in such State. Such statistics shall include-

( 1) the number of persons of voting age in each State, classified by race, color, and national origin, who are registered to vote; (2) insofar as it is possible to ascertain, the number of persons of each such classification who have voted in any election since January 1, 1960.

(b) Commencing with the next decennial census after the enactment of this Act, the information and statistics referred to in subsection (a) shall be compiled as a part of each decennial census.

Mr. ERVIN. Mr. President, I ask unanimous consent that analyses of the bills, prepared by the Legislative Reference Service of the Library of Congress, be printed at this point in the RECORD.

There being no objection, the analyses were ordered to be printed in the REcORD, as follows:

THE LmRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE,

Washington, D.C., March 7, 1962.

To: Senate Constitutional Rights Subcommittee, Senate Judiciary Committee.

Attention: Miss Simmons. From: American Law Division. Subject: Analysts of S. 480 and S. 2750, 87th

Congress-Literacy Tests in Voting.

Reference is made to your request for an analysts of S. 480, introduced by Senator JAVITS and others, and S. 2750, introduced by Senators MANSFIELD and DmKSEN. bills relate, generally, to prohibiting unreasonable literacy tests as requirements with respect to the right to vote.

The following paragraphs will describe the provisions of the bills under various subject headings:

. PREAMBLE-FINDINGS OF CONGRESS

Right to vote s. 480(a) states that the right to vote i~ fundamental in a system of free government. S. 2750(a) states that it is essential to our form of government that all qualified citizens have the opportunity to vote.

Protection against discrimination s. 480(a) states that it "continues to be" the responsibility of the Federal Government to protect the right to vote against unreasonable restrictions.

s. 2750(b) states that the right to vote in Federal elections should be maintained free from discrimination. Discrimination on account of race or color­

Literacy test s. 4.80(b) states that the right to vote of many persons has been subjected to arbitrary and unreasonable restrictions on account of race or color; that literacy tests have been used extensively for denying the right to vote to otherwise qualified persons on account of race or color; and that present laws are inadequate to assure the right to vote to qualified persons.

s. 2750(c) substantially similar to paragraph (b) of S. 480, but with the phraseology, "literacy tests and other performance examinations." Literacy standardr-Completion of six grades of school s. 480(c) states that the caliber of the Nation's schools is such that persons completing six grades of education in a Stateaccredited school can reasonably be expected to be literate, and that any test of literacy that denies the right to vote to any person who has completed six grades of education is arbitrary and unreasonable.

s. 2750(d) substantially similar-a person who has completed six grades of a public or accredited private school cannot reasonably be denied the franchise on grounds of illiteracy.

Spanish language citizens

S. 480 no provision.

S. 2750(e) states that U.S. citizens with Spanish language education are deprived of the right to vote in the States; that they are well qualified to vote; that information to assist them in the intelligent exercise of the franchise is readily available; and that lack of proficiency in the English language provides no reasonable basis for excluding these citizens from voting.

Necessity for legislation

S. 480(d) states that legislation is necessary to make effective the guarantees contained in the 14th and 15th amendments by eliminating unreasonable restrictions on the right to vote, which occurs through denial of the right to persons with at least six grades of education and which exist in order to effectuate denials of the right to vote on account of race or color.

s. 2750(f) states that under (1) article I, section 4, of the Constitution ("the times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators"), (2) section 5 of the 14th amendment (the enforcement section), (3) section 2 of the 15th amendment (the enforcement section), and Both (4) its powers to protect the integrity of the Federal electoral process, Congress has the duty to provide against the abuses which presently exist.

SUBSTANTIVE PROVISIONS

Existing law to be amended

S. 480 (sec. 2) amends title 42, section 1971(a), United States Code, by enlarging the scope of the section. The existing section 1971(a) was derived from the Enforcement Act of May 31, 1870 (16 Stat. 140), was first codified as Revised Statute 2004(a), and was then codified in its existing form. It was left unchanged by the Civil Rights Acts of 1957 and 1960 (71 Stat. 637, and 74 Stat. 90, respectively). It declares that all citizens of the United States who are otherwise qualified by law to vote at any election, shall be entitled to vote "without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or territory, or by or under its authority, to the contrary notwithstanding." It is the statutory form of the 15th amendment (Neal v. Delaware, 103 U.S. 370 (1880); U.S. v. Raines, 362 U.S. 17 (1960)).

S. 2750 (sec. 2) amends title 42, section 1971 (b), United States Code, by enlarging the scope of the subsection. Existing section 1971(b), is entitled, "Intimidation, threats, coercion," and declares that no person, whether acting under color of law or otherwise, shall intimidate · , threaten, coerce, or attempt to intimidate, threaten or coerce, any person for the purpose of interfering with the right to vote in any Federal election including primaries. It was enacted into law by the Civil Rights Act of 1957, and rests upon the authority of U.S. v. Classic, 313 U.S. 299 (1941) as well as article I, section 4 (see U.S. v. McElveen, (D.C. La.) 177 F. Supp. 355 (1959)). As set forth in House Report 291, 85th Congress, 1st session, "The doctrine in that case (i.e., U . S. v. Classic) establishes the authority in Congress to legislate concerning any and all elections affecting Federal offices, whether general, special, or primary • • •" and, “In- sofar as the right of Congress to protect voters in elections for Federal offices from interference by action of private individuals, as distinguished from official action under the color of law, is concerned, again the ruling in the case of U.S. v. Classic, supra, is controlling. Under that ruling the right to choose-"is a right secured by the Constitution • • • 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, supra."

Thus, the existing subsection (b) of section 1971, title 42, United States Code, is declared to rest upon article I, section 4, of the Constitution, and the power of Congress to protect the integrity of the electoral process (U.S. v. Classic, supra).

Neither 1971 (a) nor (b) expressly provides any legal remedy; they merely declare a right. Their enforcement depends upon other sections in the Code: criminal provisions (18 U.S.C. 241, ~42); civil actions by private persons (42 U.S.C. 1983), and civil actions by the Attorney General (42 U.S.C. 1971(c)).

Amendments sought to be effected

S. 480 rewrites 42 U.S.C. 1971 (a), by providing that all citizens shall be entitled to vote in any election, without distinction of race, color, or previous condition of servitude, and without subjection to any arbitrary or unreasonable test, standard or practice with respect to literacy; any constitution, law, etc., of any State to the contrary notwithstanding.

"Arbitrary or unreasonable test, standard, or practice with respect to literacy," is defined to mean any requirement designed to determine literacy, comprehension, intelligence, or other test of education, knowledge, or understanding, in the case of any citizen who has not been adjudged an incompetent who has completed the six primary grades in a sc;hool accredited by any State or by the District of Columbia.

This amendment presumably would rest upon the 15th amendment and the equal protection clause of the 14th amendment.

It would establish a maximum literacy requirement in all States that impose such tests (some 19), of 6 years of school. Anything over that would constitute an arbitrary or unreasonable test, and would contravene the bill.

It would apply to all elections. It would apply to persons who complete the sixth grade of an accredited school only in any State or the District of Columbia. To all intents and purposes it would not thus be applicable to Spanish-language citizens.

Since the bill, however, refers to "accredited school," it presumably includes those private as well as public schools which meet its standard .

By including within the term "unreasonable test," any requirement designed to determine literacy, comprehension, intelligence, and so forth, it could probably be applied in such circumstances as those involving so-called blank registrations, writing from dictation, and so forth.

S. 2750 rewrites 42 U.S.C. 1971 (b), by providing that no person shall coerce, and so forth, another in his attempt to vote in a Federal election, or subject or attempt to subject any other person to the deprivation of the right to vote in any Federal election. "Deprivation of the right to vote" is defined as including, but not being limited to , ( 1) the application to any person of standards or procedures more stringent than are applied to others similarly situated, and (2) the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico.

Federal election includes primaries.

The bill would do two things (although it is not necessarily limited to these since the emphasis is on deprivation of the right to vote (not literacy) in any Federal election). The first is that it would prohibit as respects voting in Federal elections, all discriminatory practices whereby unequal standards are applied to persons similarly situated. The basis for this provision presumably is the equal protection clause of the 14th amendment, but only insofar as State action is concerned (see Civil Rights Cases, 109 U.S. 3 (1883)). The second would be the creation, as respects any Federal election, of maximum literacy requirements of the completion of 6 years of education. The basis for this provision presumably is article I, section 4 of the Constitution, and the power of Congress to protect the integrity of the Federal electoral process.

The inclusion of subprovision (1) respecting application of unequal standards, makes the bill considerably broader than S. 480, since this provision might be construed to reach such elements of the electoral process as absentee voting regulations, and so forth. The bill would apply only to Federal, not to all elections.

It would create a maximum literacy requirement of the completion of six grades of education in any public school or accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico. The inclusion of Puerto Rico incorporates Spanish language educated _ citizens within the terms of the bill, and the reference to territories, although seemingly broader in scope, probably would refer only to Spanish language educated citizens in any territories the United States might acquire. The restriction in the preamble of the findings of Congress in this respect, would probably limit the application of the bill to this class of felony. citizens. · The bill, like S. 480, could be construed to apply to tests other than those of a strict literacy nature, such as writing from dictation. The provision, performance in any examination, whether for literacy or otherwise, would seem to be broad enough to encompass such tests.

No attempt has been made herein to deal with the constitutional questions raised by both bills.

In brief, the major differences between S. 480 and S. 2750 are:

(1) S. 480 presumably rests on the 14th and 15th amendments and applies to all elections; S. 2750, in its literacy test provision, presumably rests on article I, section 4, and U.S. v. Classic, supra. The bill itself relates only to Federal elections;

(2) S. 2750 includes an "unequal treatment" clause, presumably resting on the 14th amendment (as conditioned by the civil rights cases, see supra, and others), and is broader in scope, in this respect, than s. 480;

(3) S. 2750 includes Spanish-language educated citizens within the scope of its provisions. S. 480 does not.

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE,

Washington, D.C., March 12, 1962.

To: Senate Constitutional Rights Subcommittee, Senate Judiciary Committee.

From: American Law Division. Subject: Analysis of S. 2979-A bill "To further secure and protect the rights of citizens to vote in Federal and State elections."

Reference is made to your request for an analysis of S. 2979, introduced by Senator KEaTING and others. The bill relates to securing and protecting the rights of citizens to vote in Federal and State elections, and is entitled the "Federal Voting Rights Act of 1962."

The following paragraphs will describe the provisions of the bill according to its sections: