March 23, 1962 (4)

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 of Alexander Hamilton as a national monument.

Mr. SPARKMAN. Mr. President, on Tuesday of this week I spoke against the motion to consider Senate Joint Resolution 58. Before I really get into my talk tonight, I wish to give an explanation. At that time I stated, as a part of my remarks:

I am informed by the Library of Congress that if the proposed constitutional amendment were to become effective, it would nullify certain voting laws in Florida, South Carolina, New Hampshire, and Rhode Island. This statement appeared on page 4583 of the RECORD, in the middle column.

Since making that statement, I have been informed by the Library of Congress that the statement is incorrect so far as Rhode Island is concerned. The Library informs me that their researcher, in preparing the information for me, failed to take into consideration a change in Rhode Island law which eliminated any provision relating to the poll tax.

I wish to make that statement and that correction.

Mr. President, on Tuesday it was my privilege to address the Senate at some length in opposition to the motion to consider the joint resolution, to which it is proposed to attach the proposed constitutional amendment to abolish the poll tax. I set out as best I could the ma,ny reasons why I believe that the adoption of this constitutional amendment would be contrary to the public interest, would jeopardize our established system of dual sovereignty and would constitute an act of bad faith to the original framers of our Constitution, whose concurrence in the Constitution was based upon a compact that the States would be free to set the qualifications of the voters in national elections, qualifications that included the payment of poll Mr. President, as important, and, indeed, a matter of greater concern is another consideration. If this proposed amendment is approved, it will be nothing more than the simple exercise of the power of a majority of the States that are not directly affected against a small minority of five. There is really nothing which the people of these five States can do in a powerplay such as this, other than appeal to the reason of those who would exercise it. All we ask is that the people of our State be given the same opportunity that the people of the other States have had with respect to the poll tax, and that is simply to decide whether there shall be one, and to what extent. Were this tax a burdensome one, were it to constitute a real barrier to the exercise of the franchise, were it to be a real threat to our democratic process, then, perhaps, one might argue that such a power play is justified; or, in other words, that the end justifies the means. But, Mr. President, such is not the case. While I would be the first to admit that there are some instances in which people otherwise qualified to vote simply by inadvertence omit to register and to pay the tax and are thereby precluded from voting, yet, in such an event, it is not the lack of funds which keeps them from voting but their own inadvertence. I am told that there are several States which require those already on the poll list to reregister at intervals. Surely, it is not proposed to make this reregistration unconstitutional. It surely is not argued that one's inadvertence in failing to reregister should be sufficient to justify amending the U.S. Constitution. Perhaps it is not wise for the States to require the payment of poll tax or reregistration. Some would argue that it is. Some would argue that it is not.

But, as I have said before, Mr. President, this question is one for the people of the State to decide, and it should be left in their hands.

This is what the framers of the Constitution intended. Had the Constitution not so provided, then I am satisfied that the Constitution would not have been approved, and there would not have come about the formation of the Union at the time and in the manner it was formed. To abrogate this solemn compact less than 2 centuries after its ratification for the purpose of whipping five sovereign States of the Union into line is to do violence to the very philosophy of a republican form of government.

Indeed, I feel strongly that the adoption of this amendment would be a serious mistake, and I strongly urge that the proposal be defeated.

Even so, Mr; President, I must confess that if the change is to be made the approach of a constitutional amendment is at least the proper procedure no matter how distasteful its purpose may be. Unfortunately, even this procedure does not satisfy some who are so determined to exercise this power play against five sovereign States of the Union. Already there has been sent to the table a bill which it is proposed to be called up which would endeavor to abolish the poll tax by statute. Such a bill would be patently unconstitutional.

The Constitution clearly defines the respective power of the State and Federal Governments in respect to voter qualifications. Clearly, a poll tax falls within this area. Now it is recommended that article I, section 4, which has been a part of our Constitution for over a century should be interpreted so as to permit the usurpation by the Federal Government of the power of each State to determine the qualifications of electors. I cannot agree with this.

First, I would like to discuss the constitutionality of this proposal as it relates to the election of the President and the Vice President of the United States. The Constitution authorizes the State legislatures to determine the manner of appointing presidential electors. Therefore, it is discretionary with the State whether the presidential electors shall be selected by a vote of the qualified electors or by some other means, and I will read the section which makes it clear.

In article II, section 1, the Constitution provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, Number of Electors, equal to the Whole Number of Senators and Representatives to which the State may be entitled in the Congress. As to the Congress, it provides:

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their votes; which Day shall be the same throughout the United States. In substance, the selection of the President is constitutionally a twofold procedure: First, the appointment of presidential electors within a State; and second, the selection of a President by the electors. The language in the Constitution is clear, and the U.S. Supreme Court has on a number of occasions preserved the selection of presidential electors to the exclusive control of the States (Ray v. Blair, 343 U.S. 214 0952) ; McPherson v. Blacker, 146 U.S. 1 0892) ; In re Green, 134 U.S. 377 (1890)).

In the case of McPherson against Blacker, supra, the Supreme Court, after reviewing the history of the methods adopted by the States for the selection of presidential electors, asserted:

In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in In re Green, 134 u.s. 377, 379, "no more officers or agents of the United States than are the members of the State legislatures when acting as electors of Federal Senators, or the people of the State when acting as the electors of Representatives in Congress." Congress ls empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the s a me day throughout the United States, but otherwise the power of jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and Federal influence might be excluded.

We know that the exclusion of certain persons referred to in the decision relates to Members of Congress and to Federal officeholders, no one of whom is eligible to be chosen as an elector under the constitutional provision.

Moreover, the Court, in rejecting the contention that a State which previously adopted a general statewide ticket in choosing presidential electors and which now employs a district system, was violating the 14th and 15th amendments by preventing qualified voters from casting their ballots on all electors, remarked: . The right to vote i:ntended to be protected -refers to the right to vote as est a blished by the laws and constitution of the State. There is no color for the contention that under the amendments every male inhabitant of the State being a citizen of the United States has from the time of his majority a right to vote for presidential electors.

The object of the 14th amendment in respect of citizenship was to preserve the equality of rights and to prevent discrimination as between citizens, but not to radically change the whole theory of the relation of the State and Federal Governments to each other, and of both governments to the people (In re Kemmler, 136 U.S. 436).

The inhibition that no State shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discriminatory and hostile legislation (Pem­ · bina Company v. Pennsylvania , 125 U.S. 181) . The Court, in conclusion, stated:

If presidential electors are appointed by the legislatures, no discrimination is made; if they are elected in districts where each citizen has an equal right to vote the same as any other citizen has, no discrimination is made • • • unless the authority vested in the legislatures by the second clause of section 1 of article II has been divested and the State has lost its power of appointment, except in one manner.

The exclusive power preserved to the States in regard to electors is even more evident in the case of Walker v. U.S., 93 F.(2) 383 (8th Cir. 1937) .

Although the issue involved was whether falsification of the vote . on candidates for presidential electors was a Federal criminal offense, the court of appeals affirmed the complete jurisdiction of the states in selecting presidential electors. In holding that there was no Federal offense, the court discussed the Government's reliance upon Ex parte Yarbrough, 110 U.S. 651 0184), which had held that electors for Members of Congress did not owe their right to vote exclusively to State law. But the court pointed out that we are here discussing the status of presidential electors-not Members of Congress. Manifestly, the right to vote for presidential electors depends directly and exclusively on State legislation.

Proponents may contend that the case of Burroughs v. U.S., 290 U.S. 534 (1934) lends substance to Federal regulations of the selection of presidential electors. However, in that case, the court was careful to point out that the Corrupt Practices Act neither in purpose nor in effect interfered with the power of a State, under section 1, article II, of the Constitution, to appoint electors or the manner in which their appointment shall be made. The court explained that the act was confined to situations which, if not beyond the power of the State . to deal with at all, were beyond its power to deal with adequately. It in no sense invaded any exclusive State power.

The principles expounded in that case can in no way be applied to the proposed legislation. In my judgment, no case ment. can be made that the States are unable adequately to appoint their presidential electors. The manner of appointing presidential electors, as stated in the decisions I have analyzed, preserves such activity as an exclusive State power. This has been reaffirmed as late as 1952 in Ray against Blair, supra. In my judgment, there is no question that if a State chooses to elect its electors by popular election, it does have the exclusive power to prescribe qualifications for its voters, as long as there is no contravention of the 14th and 15th amendments. Certainly, no case can be made that the requirement of the payment of poll taxes involves a contravention of the 14th and 15th amendments. There can be no serious contention that the administration of the poll tax requirement is handled in such a way as to discriminate between prospective voters because of their race or creed.

The poll tax in those States where it is applicable is required of all persons subject to the tax whatever their race or c r eed.

For these reasons, I am of the firm opinion that the proposal as it relates to presidential electors would be unconstitutional.

I am now speaking about the proposal which I understand is at the desk, to substitute a legislative enactment for a constitutional amendment. I believe everyone accepts the fact that a constitutional amendment proposal is to become more or less a vehicle to which it will be attempted to add a statutory amendment such as the one I have been discussing, which I contend is palpably unconstitutional.

I should · uke to discuss next the constitutionality of the proposal as it relates to the election of Members of Con­ . gress.

Qualifications of voters for congressional elections have long been considered a matter committed to the States, subject only to Federal constitutional restrictions prohibiting discrimination on account of race, color, or sex-Pope v. Williams, 193 U.S. 621 (1904).

Naturally, the 1904 case did not speak of sex, because at that time women had not been authorized to vote. However, the case of Ventre v. Ryder, 176 F. Supplement 90 0959), laid down the rule as to race, color, or sex. -

I am sure that no one needs to be reminded that when, under the administration of Woodrow Wilson, it · was decided to permit the women of this course taken was that of a constitutional country to have the right to vote, the amendment. I have never checked back into the records, but I daresay it was not even proposed that it be done by statutory enactment. It was done by constitutional amendment. The same thing was true with reference to the freedmen, who had recently been slaves. I daresay that no effort was made to enact a statute for the purpose of giving them the vote. It was done through a constitutional amendment.

The power of the States to deal with this matter is encompassed within article I, section 2, and the 17th amend­

Article I, section 2, provides:

The House of Representatives shall be composed of Members chosen every second year by the people of the several States , and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

I believe everyone must be aware of that language in the Constitution, and how it was clearly left to the States to decide the qualifications · or electors who choose the most numerous branch of the State legislature, usually referred to as the house of representatives:

I suppose that almost every State calls it most numerous branch of the legislature the house of representatives. It was the State's function to prescribe the qualifications for the persons voting for members of the legislature, the house of representatives; and by article I, section 2 of the Constitution, the same people who are eligible to vote were made eligible to vote for Members of Congress and no one else. The determination of qualifications · was the function of the individual States.

I am sure everyone is familiar with the 17th amendment, adopted in 1913; nevertheless, I believe it is well for us to refresh our recollection frequently. It reads:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 years; and each Senator shall have one vote . The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. Yesterday the distinguished Senator from Georgia [Mr. TALMADGE] called the attention of the Senate to the fact that · this . is the only place in the Constitution where language from another part of the Constitution was repeated word for word in a later provision.

This amendment, which was adopted 130 or more years after the adoption of the Constitution, carried forward those particular words. · I shall repeat them, because I think they ought to be burned into our conscience in deciding the question as to the duality of government in this country and the division of powers between the Federal Government and the respective States:

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

Words identical with those are found in article I, section 2 of the Constitution. That - shows that the people who originally wrote the constitution intended that the States should have such powers. It shows that their descendants who wrote the amendment 130 years later intended the same thing. They intended the power to be vested in the States.

Accordingly, in a number of ca.Ses the Supreme Court has upheld provisions in State constitutions or laws prescribing the qualifications of voters--Minor v: Happersett, 88 U.S. (21 Wall) 162 (1874), denial of suffrage to women; Mason v. Missouri, 179 U.S. 328 (1900), partial registration system; Pope v. Williams, supra, declaration of intent to become a citizen; Myers v. Anderson, 238 U.S. 368 (1915), ownership of property; Breedlove v. Suttles, 302 U.S. 277 (1937), poll tax; Lassiter v. Northampton County Board of Election, supra, Trudeau v. Barnes, supra, Guinn v. U.S. supra, and Williams v. Mississippi, supra, literacy tests.

Despite this long history of judicial interpretation, the proponents now contend that article I, section 4, and the 14th and 15th amendments give the Federal Government the authority to usurp specific powers reserved to the States by the Constitution. When I say the "proponents," I am speaking of the proponents of the proposed statutory enactment; I am not referring to the proposed constitutional amendment, which will be only the beginning, if it is taken up. Accordingly, I have examined carefully several court decisions in regard to these provisions.

Article I, section 4, provides:

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.

The contention that this provision encompasses or applies to qualifications of voters, in my judgment, is without merit. As stated in U.S. v. McElveen, 177 F. Supp. 355 (1959), under Federal constitutional authority to regulate the manner of holding elections for Federal office and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers:

Congress may also control the registration but not the qualifications, of voters in Federal elections.

That the States have exclusive jurisdiction over the qualifications of voters in Federal elections seems to me to be irrefutable.

Since the first election in this Republic under the Constitution, the national electorate was limited to those, and only those, who were eligible under the laws and the constitution of the several states of the Union to vote for the most numerous branch of the State legislature. This, indeed, is in accord with the intent and understanding of the framers of the Constitution, and this can be made clear by an examination of the debates in the Federal- Convention and in the ratifying conventions, and of the Federalist essays.

Writing on this point in No. LII of the Federalist, Madison observed:

The definition of the right of suffrage is very justly regarded as a fund , fundamental article of republican government. It was incumbent · on the Convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of Congress, would have been improper for the reason just men- tioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason, that it would have rendered too dependent on the State governments, that branch of the Federal Government, which ought to be dependent on the people alone. To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory as to some of the States, as ' it would have been difficult to the Convention. The provision made by the Convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State; because it is conformable to the standard already established, or which may be established by the State itself. It wm be safe to the United States; because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States wm alter this part of their constitutions, in such a manner as to abridge the rights secured to them by the Federal Constitution.

I wish also to refer to some comments by Alexander Hamilton which appear in Federalist No. 60. I can hardly restrain myself from commenting on the fact that Alexander Hamilton is the subject of the joint resolution which is sought to be taken up. Three or four years ago the Stella school district bill was the vehicle for proposed civil rights legislation. I do not know what finally happened to the Stella school district bill. I think I shall find out. I shall make inquiry as to what happened to the Stella school district bill. But in this instance the Alexander Hamilton Memorial measure, if I mistake not, is the vehicle which it is proposed shall carry the proposed amendment.

Alexander Hamilton is usually regarded as really the godfather, not the founder, of the Republican Party. It was some of his philosophy to which the party subscribed, and to which it largely subscribes today. I have always admired Alexander Hamilton for what he accomplished. I have admired him for what he did · for the good of the young government of this country when it was getting started.

I think this Nation, regardless of the political differences between Hamilton tion? and the man who might be called the godfather of the Democratic Party, Thomas Jefferson, whose political philosophy I profess to follow, owes a great debt to Alexander Hamilton. I have great admiration for Alexander Hamilton, and I think this Nation was fortunate to have had him as the first Secretary of the Treasury. I believe he started us on a safe, sound, sane financial basis.

I wish to see the national debt reduced, · if we can do it, as much as does anyone else. But one of Alexander Hamilton's · basic philosophies was that if the Nation was to be strong, it should have a national debt-that that would strengthen the Nation.

So I have always had a great admiration for Alexander Hamilton. He was a patriot; and I am in favor of the proposed Alexander Hamilton · National Monument. I do not like to see that measure sacrificed by being changed into a vehicle for the proposed poll tax measure. ·

A moment ago I said I never knew what happened to the Stella school district bill, which was made a similar vehicle a few years ago. However, my attention has been called to the fact that the Stella school district bill is now back on the calendar; it is Calendar No. 687. It is a bill for the relief of the Stella Reorganized School R-I, Missouri, in the sum of $1,500; and I notice that the bill was reported from the . Judiciary Committee by the Senator from Missouri [Mr. LoNG]. Mr. President, :L certainly hope the Stella school district obtains that relief without being penalized by having some other measure substituted for that bill.

Likewise, I hope the Alexander Hamilton National Monument joint resolution, which it is sought to make a vehicle for the poll tax proposal, will be taken care of. I think the Alexander Hamilton National Monument joint resolution is a good measure, and I shall be glad to join with other Senators in paying our respects to the memory of Alexander Hamilton.

Mr. President, I may say to the Senator from Mississippi [Mr. STENNIS] that I was about to quote from the words of Alexander Hamilton which appear in volume 60 of the Federalist papers. A few minutes ago I quoted from the writings of James Madison in the Federalist papers.

In volume 60 of the Federalist papers, Alexander Hamilton wrote as follows:

The truth ls, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect, or be elected. But this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the Constitution; and are unalterable by the legislature.

Mr. STENNIS. Mr · . President, will the Senator from Alabama yield for a ques­

Mr. SPARKMAN. I am glad to yield for a question.

Mr. STENNIS. The Senator from Alabama will recall the conditions which existed in Alabama-and largely the same conditions also existed at that time in my State and in similar areas of the country-when we were young men. The poll tax is now being referred to as a most vicious thing and something highly nefarious: and it is said that all kinds of evil attaches to it. Let me ask the Senator from Alabama whether he recalls the attitude, when he was a young man, in the communities and small towns in his State in regard to payment of a poll tax, as connected with the exercise of the citizenship privilege of voting: Can the Senator from Alabama tell us about that?

Mr. SPARKMAN. I did not grow up in a small town; I grew up out in the country, several miles from town and several miles from the railroad. We were so far out that I could only hear the train whistle as it went through; that is to say, when the wind was right, I could hear the train whistle. But I can certainly speak of the attitude of the people of the community in which I lived. I referred to it the other day.

My father was a poor man, and there were 11 children in my family. I have often marveled that my daddy was able to feed all 11 of those hungry children.

Mr. STENNIS. He was a good :financier.

Mr. SPARKMAN. We raised on the farm practically all the food we ate. But my father would not have thought of going without paying his poll tax. That was true throughout the neighborhood; regardless of how poor a man might be, he would produce the $1.50 a year to pay for the right of exercising his citizenship privilege.

In the neighborhood there was a strong feeling in that connection, inasmuch as people more or less looked down upon one who did not pay his poll tax. Those who did not pay it . .were . regarded as not fully - discharging . their responsi- . bilities of citizenship. _ I never knew anyone to be denied the right to vote,- merely on the · basis of · his ' ' · not having th~ ·_ $1.50 with which to · pay his poll tax, or because of not being able . to get the $1.50 with which to pay it. . Mr. STENNIS. I thank the Senator · from Alabama.

Let me ask him another question, if I may. It was - really a source of - pride on . the part of everyone, was it not, to have a poll tax receipt and to be on the list of voters? As the Senator from · Alabama has said, people were looked down upon if they did · not try to meet those requirements.

Mr. SPARKMAN. That is true. . Let ~e recite my · own experience: When I was about to become 21 years of age-my birthday is December 20-uncier our rule, one who would become 21 within a certain • time of registration could register ahead of · time. · At any rate, when the time came when l was eligible to register, no one could have : tied me away from registering.

Mr. STENNIS - . Yes.

Mr. SPARKMAN. · Let · me say to my friend that as soon · as the time to pay the poll tax came, I paid it promptly. I still have the receipt for the taxes I paid in those days. As I said the other day, about 1921 our legislature enacted a law-later it was written into the state constitution-:-exempting war veterans from the requirement to pay the poll tax; and since I was a veteran of World War I, I then became eligible for that exemption . . Thus it is that I have not paid a poll .tax since that first time.

Mr. STENNIS. That . was in appreciation of the service . rendered by the veterans. However, the principle that the poll tax should be paid still remained, did it not? ·

Mr. SPARKMAN. Yes.

Mr. STENNIS. I still have the receipts for the - poll taxes I paid-for the first one I paid, and also for those I paid each successive year; and I am proud to have them.

During the consideration of this subject, much has been said to the effect that some politicians of a low order or a low type would pay the poll taxes of other people, and thereby would cast their ballots, so to speak.

Mr. SPARKMAN. bloc voting.

Mr. STENNIS. Yes; bloc voting. The Senator from Alabama was . born and reared in Alabama, and he has been out among the people and in public life all these years; and I am sure he would have knowledge of such a thing if it had occurred in any appreciable degree. So let me ask him this question: What is the knowledge of the Senator from Alabama in regard to such matters?

Mr. SPARKMAN. I do not think it would have been possible. In Alabama; a person is not allowed to pay another person's poll tax-except the poll tax of a member of his own family. For example, throughout the years I have paid my daughter's poll tax, and I still do. But if the Senator from Mississippi were a · citizen in Alabama and I were to pay his poll tax, I would . be guilty of a criminal offense ; · That is done only at one place. · A voter goes to the tax collector in the courthouse and pays it ;lust as he would pay his regular taxes. We do not have the books we hear about. I have heard of them in other States, bJ.It it would be absolutely impossible in my State. Such a thing never took place there.

Mr. STENNIS. Some incident of irregularity or instance of abuse is scraped up and put into a report of some kind, and it comes tumbling · in on the floor of the Senate, and is pointed out as something nefarious and foul, requiring a constitutional amendment to wipe it I served for 5 years as district attorney and 10 years as trial judge. I spent 15 consecutive years, in daily, weekly, and monthly contact with all kinds of transactions dealing with public - affairs, alleged crimes, and everything else. I .never heard of · such a thing happening with reference to the poll tax.

I know something like that could happen. Perhaps it does here, there, or yonder, but with respect to skulduggery, fraud, and corruption in connection with elections, as a member of the Rules Committee of the Senate, when we went tO a large city not far from here and took testimony, I heard in one day more proof of corruption, and the poll tax was not involved - in that, than I - heard in all my life put together before.

Mr. SPARKMAN . . · I am sure of it. By the way, while we are talking about the Alabama poll tax; I made the - statement the other day, and I repeat - eat it now, that the exemptions have been extended. I referred to the exemption set up follow- _ ing World War I. Then an exemption was set up following World War II. Many thousands of boys and girls who went into the service, regardless of race, color, religion, or any other factor, were exempted from the payment of the poll tax. The same was true of the Korean war. · I do not mean that an act of the State was required; we simply exempted them. We also exempt members of the National Guard. We exempt persons who are blind, deaf, or otherwise physically disabled. There have been court decisions by the U.S. Supreme Court sustaining those exemptions and holding In other woo-ds, that they were valid.

Mr. STENNIS. As I understand the situation in Alabama, not only veterans, but those who are disabled, are exempt from payment of the tax. . The general idea is that if one does not have an earning capacity, he does not have to pay the poll tax. Is that correct?

Mr. SPARKMAN. Yes.

Mr. STENNIS. Is it not a fact that persons above a certain age are also exempted?

Mr. SPARKMAN. Persons 45 and over. We do not require cumulative payments for years in arrears, but merely payment for the current year plus 1 back year. In other words, if a person has been delinquent in his payments for 10 years, he pays $3, for the current year plus 1 back year, and he is then ready to vote.

I wish to bring out this point, which t' stressed . the other day, and which is important. In Ala . Alabama every bit of the money collected goes to our schools. It is quite an item. · I received a photostatic copy of a letter through the mail from the examiner of public accounts. I actually received it from Judge Walter B. Jones, but he had received it from the examiner of public · accounts. It is most interesting.

We are now in the 1961-62 year for poll tax collections. According to the figures, $404,248.50 has already been collected. Many persons may say that the poll tax does not amount to anything, but in Alabama enough has already been collected this year-and the money goes toward the . schools-to pay the salaries of probably 80 to 100 schoolteachers, or to build two 15-room schoolhouses.

Again, that may seem like a small amount, but when a State has to scratch for money, as we do in my State, and ' as they do in the State of the Senator from Mississippi, · half a million dollars is not to be laughed at.

. Mr. STENNIS. Still, is it not a small amount as to each individual so that it does not preclude him from making that contribution?

Mr. SPARKMAN. Yes; the Senator is correct.

Mr. STENNIS. ! . understood the Senator . to say that all persons 45 years of age and over are exempted in Alabama. , Mr. SPARKMAN. Yes.

Mr. _ STENNIS. In Mississippi persons 60 years of age and ov.er are exempted.

Mr. SPARKMAN. Our exemption applies to persons _ 45 ye _ years . of age and over.

t was interested to see that we had collected to date $404,248. ·

Last year, which was ·- not an election year, the total amount collected was $268,606.50.

The year before, the amount collected was $377,395.

The year before that, it was $260,49:>. It can be seen how the amounts go more or less in cycles, but there is a · steady increase.

That amount represents contributions from approximately one-fourth of our voters. In other words, about threefourths of our voters do not have to pay. As the number of older people increases, as health improves, the number of exemptions will grow larger. Of course, with the great numbers of war veterans we have had over the years and the large National Guard we are maintaining, it is apparent that great numbers are · exempt and will be exempt. Probably three-fourths of our voters . are exempt from paying any poll tax whatsoever.

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

Mr. SPARKMAN. I yield for a question. ·

Mr. STENNIS. The application and administration of the poll tax, of course, applies to all races. Is · that correct?

Mr. SPARKMAN. Oh, yes.

Mr. STENNIS. Is it not true that the irresponsible, the indifferent, the careless, the shiftless, and the drifters are the ones who usually fail to pay the tax and are left off the rolls?

Mr. SPARKMAN. Yes. We are often criticized for the relatively small vote in the general elections. I can remember many general elections in which we hardly knew an election was going on. I will admit that · in recent years the Republicans have shown a little more · interest. It is true that interest has been shown primarily by people of the Republican , political faith moving · in from the North, but even yet the Senator from Mississippi knows we get no real challenge from them in the voting in the general elections. In the ' primaries people fail to vote. Many persons pay the poll tax. It is not a question of people failing to vote because they have . not paid the poll tax · . The big failure comes from those who have paid the poll tax, but who do not show · enough interest, or are not alert enough or interested enough, or do not have initiative enough to get out and vote. ·

Mr. STENNIS. In that connection, I had some figures from my own State which showed, on the basis of comparison, that four and a half out of every six who were qualified voted in what we call the big election, the election of county officers and Governor, which brings out a large vote. Is that situation true in Alabama?

Mr. SPARKMAN. Yes. A . moment ago the Senator referred to the application of the poll tax and the collection of it. I was interested in an editorial · which appeared in the Montgomery Advertiser of yesterday, March 22.

He discusses the poll tax. In the editorial, the editor refers to the fact that during the collection period of October 1, 1960, to February 1, 1961, a total of $268,606 was ' collected from 157,400 voters. .

I estimate that there are - between 800,000 and a million voters in Alabama. Therefore, obviously, a relatively small number are paying the poll taxes.

The editor went on to say, with regard to the poll tax: ,

It all went to schools except $3,304, which was withheld to pay for the poll tax books in which the records are kept.

Last year was not a big election year, and the $268,606 i::: not much money. But it will pay the salaries of 65 or 70 teachers or build a 20-classroom grade school.

My estimate was incorrect. If this amount would pay for that many teachers, the amount already collected this year probably would pay for 125 or 150 teachers. That means a great deal to the schools of our State.

With reference to the question of Negroes being kept from voting because of the payment · ent of poll taxes, the editor is a very vigorous person and goes directly to the point. He says,

The Advertiser-

That is a pretty good way of saying The Advertiser placed a call to a Federal judge in the State. He could not remember that a case had ever arisen in this State where a Negro challenged the poll tax as a discriminatory device, and he had no personal knowledge or information that the poll tax is so. used-

That is the Federal judge. No com .. plaint was ever made-

A call was made to a member of the Alabama Advisory Committee of the U.S. Civil Rights Commission. Ditto.

A call was made to the chairman of the advisory committee. His reply: There have been no official complaints, and it is his personal opinion that the poll tax of $1.50 a year-maximum of $3 if the voter is delinquent--does not keep Negroes from voting. The only person who thought the poll tax does keep Negroes from the polls was Dr. Foster, president of Tuskegee Institute. He . believed that it is a "psychological" deterrent. He also thinks it is an economic deterrent, that it falls with more force on Negroes than whites because more Negroes are in lower-inca~~ groups.

Taxpaying requirements of one kind or another were in force in many of the States at the time the Constitution was adopted. I know of no instance in which anyone deemed such taxpaying requirements to have been abrogated by the adoption of the Constitution. Precedent and practice indicate conclusively that this requirement of a poll tax for the privilege of voting is wholly a matter of State concern and no Federal constitutional "right" derived from the 14th, 15th, or 19th amendment is violated by such a requirement, even where the choice of national offices is involved.

In the case of Guinn and Beal v . . u.s .. 238 U.S. 347, the Court said in reference to the 15th amendment:

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 organization 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 seeks to regulate its exercise as to the particular subject with which it deals.

In the case of Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205, - Justice Butler, speaking for a unanimous court, declared:

Privilege of voting is not derived from the United States, but it is conferred by the State and save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate.

I simply cannot conceive of more specific, definite, or brief language than that in stating the principle that the right to vote is derived from the State, and that the State can give it on such conditions as it prescribes, so long ' as it does not conflict with the provisions of the 15th and the . 19th amendments. ' ents.

Proponents of legislation to abolish the poll tax may contend that · the supreme Court decisions, which have not always been uniform as . to whether the right to vote for a Member of Congress has a State or U.S. source, add to their argument. This is simply not the case. Even in those decisions which do indicate that the right to vote stems from the Federal Government as opposed to the State, these holdings are made with reference to the exercise of the power to . regulate the manner of holding congressional elections as opposed to the fixing of qualifications of electors. This is made pe;rfectly clear in the case of Ex parte Yarbrough, 110 U.S. 651.

While the Courts have said that the right to vote for a Member of Congress is a right or privilege secured by the Constitution, it also stated that-

The States, in prescribing the qualifications · of voters for the most numerous branch of their owri legislatures, do not do this with reference to the election for Mem- . bers of Congress. Nor can they . prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution - of the United States says the same persons shall vote for Members of the Congress in that State. It adopts _ the qualifications thus furnished as the qualification of its own electors for Members of Congress. • • • The Court did not intend to say (in Minor v. Happersett) that when the class or · person is thus ascertained, his right to vote for a Member of Congress was not fundamentally based upon the Constitution, which created the office or Member of Congress, and declared it should be . elective, and pointed to the means of ascertaining who should be electors.

For Congress to enact legislation-! am now talking about a statutory enact­ . ment, rather than a constitutional amendment-abolishing the poll tax is, as I have mentioned, tantamount to . usurpation of the sovereign rights of the states and is in derogation of the Constitution. The Constitution specifically leaves qualifications of voters within the purview of the States' powers.

· None · of the provisions which the proponents of legislation abolishing the poll tax rely on would give congress a carte blanche power but each would limit the Congre.ss in the area in which it has the power to act.

As I have pointed out, it was my privilege to address the Senate last Tuesday evening on this question. During the colloquy between the distinguished Senator from Texas [Mr. YARBOROUGH] and me, - reference was made to a paper in the Texas Law Review, "The Poll Tax and Voter Registration," written by a member of the Travis County Bar Association of that State, Fagen Dickson, a distinguished and able lawyer. I pointed out that this was a very interesting article.

The Senator from Texas [Mr. YARBOROUGHJreminded me that Mr. Dickson is one of the distinguished Democratic leaderS of the State of Texas who practices law in Austin and is widely known in the public life of that State .

Mr. Dickson formerly served as first assistant attorney .general of the State under Attorney General Price Daniel, who is now · the Governor · of Texas and who formerly served in this body.

In view of the comments about Mr. Dickson and his article, I would like to take the liberty of reading excerpts from it because I believe them to be compelling to the conclusion that legislation endeavoring to abolish the poll tax would be unconstitutional. I am speaking of a statutory enactment rather than a constitutional amendment. Of course, I concede, as does everyone, that a constitutional amendment duly approved in . the method prescribed by the Constitution is naturally constitutional. Earlier in my remarks I talked about a proposal to enact a statute removing the poll tax, and I was discussing the constitutionality otsuch an endeavor:

In 35 Texas Law Review, at page 1032, Mr. Dickson writes, as follows:

In Breedlove v. Suttles, decided in 1937, the Supreme Court unanimously upheld a provision of the Georgia constitution requiring payment of a poll tax as a qualification for voting in State and National elections. The tax was $1 and was levied ' annually on -all persons between the ages of 21 and 60, excepting the . blind, and females not registering for voting. The Court made the following observation:

"To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United States, but is _ QOnferred by the State and, save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate."

What I have read is almost the identical language that Mr. Justice Butler used, which I quoted a few minutes ago. I continue to quote Mr. Fagan Dickson: then there has been a marked trend . toward a more liberal interpretation of the Federal Constitution by the · Supreme- Court in · civil rights cases. It is exemplified in Smith v. Allwright, and Brown . v. Board of Education, two recent cases which ov.erruled · previous , decfl:11o . ns a-nd struck down State action. In view of this trend toward broader Federal powers, can the Breedlove case be expected to stand? Since the Supreme Court . is · the final arbitrator of such constitutional issues, Congress cannot overturn this case as it did the tidelands decision.

In the Breedlove case, the petitioner did not allege . that he was unable to pay the assassed poll tax. · If an indigent could not afford to pay the tax, could he claim that ' he was being denied equal - protection of the laws? In Griffin v. Illinois, the Supreme Court in a 4-to-4 opinion, with Mr. Justice Frankfurter concurring in the disposition of the case, held that the failure of the State o! Illinois to provide a free transcript to an indigent petitioner in an appeal from a conviction of armed robbery, violated the due process and equal protection clauses of the 14th-amendment. The State action was condemned as "invidious discrimination," because full appellate review was denied to this petitioner although available to those able to pay for their transcript, and to indigents under a life sentence who are furnished a free transcript.

I interpolate at that · point to say that I see nothing in the decision to quarrel with. I think it was exactly right. In my State an indigent can obtain a transcript: My recollection of the practice in the Federal court is that an indigent can always obtain a transcript in the Federal courts. So it seems to me that the point has no bearing. The writer of the article goes on to say, in effect, that the point really does not determine the case, and he comes to the conclusion that enactment of the statute would be unconstitutional.

Mr. Dickson continued:

In determining the reasonableness of classifications · under the 14th amendment, the interest of the individual must be weighed against that ~f the State. Legitimate interests are sought to be served by the State's levy of a poll tax. It is claimed that the power . r to withhold the privilege of voting affords an effective means of collecting revenue to support the public schools. In this time of high wages and inflation, it would seem that inability to pay a $1.75 poll tax would be too small a harm for the law to notice in the absence of a denial of . a constitutional right.

Basic to any discussion of constitutionality of the poll tax is an examination of the nature of the right or privilege to vote. Breedlove spoke of . a privilege conferred by the State, bu.t United States v. Classic criticized this language. However, the Classic case involved the .right of . qualified voters to have their ballots counted, and was not concerned With determining what was a valid qualification. .

If it be assumed the Supreme Court will not strike down the Texas poll :tax by overruling or distinguishing the Breedlove case, there remains a strong possibility that Congress may pass an anti-poll-tax bill. The validity of such an . act wm present a major States right issue. In this instance the 1 States w111 not able to rely on the lOth amendment. That amendment reserves to the States only those "powers not delegated . ated to the United States by the Constitution nor prohibited by it to the States." The right . to prescribe the qualifications o! voters is delegated by the Constitution tO the States. This is not to be confused with the right of the citizen to vote in national elections. That right may be derived from the United States, but only those citizens who meet the States qualifications are entitled to exercise it. An _ e . examination o~ the provisions of the US. Constitution relating . to tJ:le . three types of national elections makes -. this evident.

The House · of Representatives and the Senate are chosen by the people, .. and. the electors in each State shall have the qualifications requisite for electors of the most . numerous branch of the State legislature." Since the right to vote for the most numerous branch of the State legislature is derived from the State, and since the State unquestionably has the right to determine the qualifications of the persons who have the right to vote in these elections, it follows that these provisions delegate to the States the right to fix the qualifications of voters in congressional elections. In respect to presidential elections, the Constitution provides that "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors. • • •" Thus the manner of the electors' selection is delegated exclusively to the State. In Texas they are nominated by conventions and selected by the qualified citizens voting for a presidential candidate in the general election. The requirement that a party's electors sign a pledge to vote for their party's . nominees was upheld as within the powers delegated to the States. The Supreme court said:

"The presidential electors exercise a Federal function in balloting for President and Vice President but they are not Federal officers or agents any more than the State elector who votes for Congressmen. They act by authority of the State that in turn receives its authority from the Federal constitution."

The attempted justification for the authority of Congress to pass an anti-poll-tax bill is set forth in section 1 of the act which passed the House of Representatives in 1947. It provided (1) that the poll tax "shall not be deemed a qualification of voters" in national elections, (2) "shall be deemed an interference with the · manner of holding" elections for national -- officers, and (3) shall be deemed "a tax upon the right or privilege of voting for said national officers.” Qualifications, it is argued, refer to competency, and the ability . to pay . a $1.75 poll tax has little relation to one's competency to cast a ballot. However, the conte-ntion has been . made that it is not unreasonable to require a citizen to show he has an interest in his government by contributing at least this token financial support. Furthermore, registration is deemed a proper qualification, and in Texas the payment · or one's poll tax also accomplishes registration. Mo:re accurately, a poll tax should be considered a requirement, or a . condition precedent for voting. And it has been held that the states can constitutionally so condition the right of suffrage.

"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. • • •"

This provision of the Constitution . only gives Congress the power to regulate how a vote may be cast, not who may cast it. Advocates of anti-poll-tax legislation claim that the tax encourages vote buying which leads to corruption and interferes with the manner of holding . an election. _ Such roundabout reasoning would result In killing the patient to cure - his cold.

The poll tax is not a tax on the right to vote, b t i ta hi h i t 1 vo ' u s a · w x c ex s s independently of that · right. Furthermore, many eligible voters are permitted to exercise their franchise without paying the tax, and such reasonable exemptions are constitutional.

The poll t , tax applies equally J;o !loll races and does not discriminate against the Negro. In fact, although-many Southern States have -a larger Negro population than Texas, recent. figures reveal that Texas has the greatest number of registered Negro voters.

Texas did not adopt the poll tax as a requirement for , voting until 1903. Thus, it can be seen that the tax was not a postreconstruction attempt to disfranchise the Negro. More likely it was intended to inhibit the Populist movement and prevent fraud in elections by providing a registration system. .

The contention that the poll tax denies the States a republican form of government ap· pears to be without merit. The tax was originally introduced to extend suffrage to a larger class than had been permitted to vote under the freehold property qualifications. These latter qualifications existed in the States when the Constitution was adopted, and they have been held to be constitutional. Argument in favor of the constitutionality of an anti-poll-tax b11lis based on the reluctance of the Supreme Court to nullify an act of Congress, and the contention that the poll tax might be characterized as a political question. The following language from United States v. Classic is frequently cited as supporting such legislation under the "necessary and proper" clause of the Federal Constitution:

"While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the States, 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 execution the foregoing powers."

Although this dictum may be indicative of · a trend toward greater national power over the States, it is believed that the better view would find a Federal anti-poll-tax bill unconstitutional. Congress should not be permitted to usurp the power of the States and the Supreme Court, by declaring a State's action invalid. If Congress could have de· termined voter eligibility constitutional amendments would not have been necessary in order to give Negroes and women the right to vote.

Mr. President, it is my understanding that the majority . leader is ready to move a recess of the Senate at this point. With that understanding I shall be glad to yield the floor. I have concluded my second speech.