March 27, 1962 (3)

, The Senate resumed 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. JAVITS. Mr. President, I offer as a substitute for the pending amendment an amendment in the nature of a ' substitute, which is at the desk an:d is identified as "3-15-62-B." ' ·

The VICE PRESTDENT. The amendment will be stated. . .

The Chief Clerk proceeded . to state the amendment.

Mr. JAVITS. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with, and that the text of it may be printed in the RECORD at this point.

There being no objection, the text of the amendment was ordered to be printed in the RECORD, as follows:

Strike ' out all after the resolving clause and insert in lieu thereof the following: "That the congress finds that the requirement that a poll tax or ' other tax be paid, or that any property qualification be met, as a prerequisite for voting or registering to vote at primaries or other elections for President, Vice President, electors for President or Vice President, or for Senator or Member of the House of Representatives, is not and shall not be deemed a qu a lification of voters or electors voting or registering to vote at primaries or other elections for said Officers, within the meaning of the Constitution, but is · and shall be deemed an interference with the manner of holding primaries and elections · for said national officers, an abridgment of the rights and privileges of citizens of the United states, a tax on such rights and privileges · , an obstruction of the operations of the Federal Government, and an impairment of the republican form of government.

"SEc. 2. It shall be unlawful for any State, municipality, or other governmental authority · or any subdivision thereof, or for any person, whether or not acting on behalf of any State, municipality, other governmental authority or subdivision thereof, to levy, collect, or require the payment of any poll tax or other tax or to impose a property qualification as a prerequisite for registering to vote or voting in any primary "br other election for President, Vice President, elector for President or Vice President, or Senator or Member of the House of Representatives, or otherwise to interfere with or prevent any person from registering to vote or voting in any such election by reason of such person's failure or refusal to pay or assume the obligation of paying any poll tax or other such tax or meeting any property qualification. Any such levy, collection or require- , and any such tax or property qualification, shall be invalid and void insofar as it purports to disqualify any person otherwise qualified from voting at such primary or other election."

Amend the title so as to read: "Joint resolution to protect the right to vote in national elections by making unlawful the requirement that a poll tax be paid as a prerequisite to voting in such elections, and for other purposes."

Mr. JAVITS. · Mr. President, the amendment is offered on behalf of myself and Senators DouGLAS, KEATING, BusH, HART, NEUBERGER, CAsE of New Jersey, PASTORE, ScoTT, ALLOTT, MoRsE, PROXMIRE, BEALL, WILliiAMS of New Jersey; and KucHEL.

Mr. President, the amendment I would substitute for the constitutional amendment which is now before the Senate is in the form of a statute eliminating the poll tax in elections · for · Federal Government officials.

I am well aware - Of the intention of the majority leader : to move to table this particular substitute. Nonetheless, I have offered if because I feel very deeply that we ' are to _ do anything, after the pain and anguish which we always · go through in these matters, let us do something now instead of deferring the day when we will do something,

Aside from every other argument on this subject-and this has been a matter of disputation for a very considerable period of time-the argument which seems to be most persuasive is this: If we pass a constitutional amendment and it is approved by the States, 'We Will still have to be back here to pass a statute, because no amendment to the Constitution is self-operative. We must pass a law to implement it. , Therefore, why go through all of this circumlocution if we can constitutionally-and I believe it is J1.0W clear beyond peradventure that it can be done--do the same thing by statute now? Do we want a repetition of the events of the last 2 weeks, if it is completely unnecessary? · · ·

The · constitutional amendment technique haS been with us for 14 years. We actually passed it in the Senate in 1960, but nothing has happened. So here we are again with the same constitutional amendment at this session.

On the other hand, in the House, on five successive occasions, there has been passed a simple statute to outlaw the poll tax. If we had seen fit on any - one of those occasions to do exactly as the other body had done, the matter would long since have been settled. May it be said to the credit of this body that this was attempted on one occasion. In 1945 the Judiciary Committee actually reported to the Senate a bill which is very similar to the one I have offered today, which would have outlawed the poll tax in respect of elections for Federal officials. However, that bill ran afoul of extended debate, as it -is euphemistically called, and cloture was not successful; so the matter fell by the wayside.

Mr. President, the first point of argument is, Why should we try to do it by constitutional amendment, when we will have to pass a statute ultimately anyhow, and when we can enact legislation right now? I shall go into that question in some detail later.

The same matter wa.s debated and discussed and voted upon in 1960, at which time the Senate voted to table this statutory approach by a vote of 50 to 37 ~ However, since that time we have had the experience of having passed a constitutional amendment which, when it went to the other body, got nowhere. I do not know what will happen to this one, but I do know . that if we pass it as a statute now we have assurance that it will be passed by the House, by reason of the fact that on five successive occasions in the other body such a statutory method has been adopted and enacted. Consequently, a provision outlawing the poll tax is · more likely to be enacted this . time as a statute than as a _ constitutional amendment.

I . repeat, first, the most important point _ is that we will have to pass a statute anyhow , sooner . or later; therefore, 'We might as well do it now, . since we hav-e the . power to do it.

' Secondly, · as to the chances 'for enacting a constitutional amendment, let us remember that there are 11 States which either have the poll tax now or have had it in the - very recent past. · so we start with that problem. We also have the fact that 11 States did not ratify our last previous constitutional amendment, giving to residents of the District of Columbia the right to vote in presidential elections. We have also the fact that a considerable number of States-12 to be exact-disqualify paupers or inmates of charitable institutions from voting. It strikes me that when we take the 11 and add to that number-and then we need only 2 more-the 12 States which have laws preventing paupers or inmates of charitable institutions from voting, we are running some risk that a minority of the country, both as to the number of States and as to population, may frustrate the whole design of Congress. Therefore, I believe we must ask ourselves the logical question: Why do it the hard way? Why not do it the direct way which is available to us, and in which the other body has time and again shown a disposition to joiJJ.?

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

Mr. JAVITS. I should like merely to add one sentence. Then I will be very glad to yield to the Senator from Florida. Mr. President, I must, of course, demonstrate-as I shall now undertake to do-that to take the statutory - course is permitted by the Constitution, because whether it can be tested or not, we are too responsible to move in that way unless we are convinced the Constitution allows it. So I shall now attempt to demonstrate that to the Senate.

I now yield to the Senator from Flor­

Mr. HOLLAND. What reason does the Senator have for thinking that the States which have pauper statutes, so called, would be interested in defeating this amendment?

Mr. JAVITS. I think any of the States which have pauper statutes may be interested in defeating the amendment. It will be argued in more detail in respect to the Senator's amendment when we reach that part of the debate, assuming that I do not succeed, but it may very well be that those States which have that kind of provision may entertain some doubt about continuing under their laws. They may say, " This is an out on that score because of doubt as to what that may or may not mean"; and hence they may find an interest in not ratifying the amendment in order to continue their own laws with respect to paupers. '

Mr. HOLLAND. The Senator knows, does he not, that we struck out of section 1 the reference to property qualifications?

Mr. JAVITS . I do not want to deal with that in full at this point because property disqualification can and will be discussed, I am sure, in connection with the constitutional amendment, and raises some questions. I was only trying to answer specifically the Senator ' s question as to what States m i g ht be against this proposal.

CONGRESSIONAL RECORD- SENATE . Mr. HOLLAND. I cannot follow the Senator's logic. When we strike out of section 1 the only thing that related to section 2, by striking out the property qualification provision, I do not see how the pauper proviSions of the 12 States involved could have any application at all to this amendment.

Mr. JAVITS. I am not trying to apply the constitutional amendment proposal to the State laws; I am only trying to apply the acid test to the proposal: Whether we are likely to have the amendment approved by three-fourths of the States. I point out that a number of States have an interest because of those laws to let the Constitution remain as it is.

Mr. HOLLAND. Does the Senator think there is anything in the amendment which would interfere with those States or the pauper · provisions?

Mr. JAVITS. I would rather not pass · upon that question until the questions of exclusion and inclusion raised by the Senator have been dealt with in the debate , as I feel certain they will be.

The question of constitutionality, which is involved in the statutory substitute I am offering, has been very much discussed; but I think constitutionality is firmly based upon a number of grounds, all of which are recited in my amendment itself, in which the Congress finds as a fact that the poll tax is an attempt to interfere with the manner o~ holding elections and primaries, a tax on primaries, an abridgment of rights and privileges of citizens- of the United States, a tax on such rights and privileges, an obstruction of the operations of the Federal Government, and an impairment of the republican form of government. This relates to the various elements of the Constitution upon which I depend in urging the constitutionality of such an approach as this.

The first question is: Is the poll tax a qualification for - voting within the language of the Constitution, article I, section 2, which gives the ' States power? Or is it a regulation as to time, place, or manner within article I, section 4, which expressly authorizes the Congress to act? The word "qualification" has been defined time and again in the Congress. Interestingly enough , I find the most exact definition in a message sent by the Governor of South Carolina to his own legislature in 1947, urging the legislature to repeal the poll tax. In his message, the Governor of South Carolina said:

There has been much misguided agitation about the poll tax as a qualification for voting. Capacity, in accordance with the other constitutional provisions, to exercise the right of franchise should be the only qu a lification of an electOr.

In short, what the Governor was really saying was that any kind of financial or property prerequisite for voting is not a qualification. He himself defines the word "qualification" as synonymous with the concept of capacity. It seems to me that that concept is borne out by the cases, particularly the one case upon which the proponents of the constitutional amendment theory constantly rely, the case of Breedlove v.

5089 Suttles (302 U.S. - 2'77), decided in 1937 . There the Supreme Court refers throughout to the poll tax not as a qualification for voting-or, to use the words of the Governor of South Carolina, as relating to capacity-but as a "prerequisite of voting."

I respectfully · submit that treated as a prerequisite, as a condition precedent for voting, it falls far more within the time, place, and manner of holding elections, over which article I, section 4, of the Constitution gives Congress the power, than it does within the term “qualifications,” over which article I, section 2, gives the States power.

This is also borne out , by other cases which have been decided by the Supreme Court under article I, section 4. But I find a very interesting reference with respect to it in the opinion of the Attorney General of the United States, when be testified the other day before a subcommittee of the other body, in which the main thrust of his testimony was with respect to literacy. The Attorney General, when be argued the question with respect to the poll tax, said that the statutory method for eliminating the poll tax was in his opinion just as valid an exercise of congressional authority as it was with respect to literacy. However, be said that the administration preferred the constitutional amendment approach; and so he said be preferred that method. But be said, as a basic and organic element of his opinion, that the statutory method for outlawing the poll tax was just as effective and valid as it was with respect to literacy.

The cases which can be cited in support of that process go back to 1879. I refer to Ex parte Siebold (100 U.S. 371) in which there were convictions for 'Jallot-box stuffing under Federal criminal law. The con . convictions were upheld on ' the ground that Congress has the power to assume the entire regulation of the election of Representatives and may, as it did in that criminal election fraud statute, undertake only partial regulation.

A very important aspect of that caseand it is true of a whole series of cases-­ is the proposition that under article I, section 4, State regulation applies only unless and until Congress steps in, and then only to the extent that those State regulations are not superseded by · Federal law. So it is plain that Federal law can be effective notwithstanding the fact that the Supreme Court has upheld the poll tax. The Supreme Court upheld a State poll tax statute in the Breedlove case, to which I referred , en the ground that it was not discriminatory on its face; the statute made distinctions as to women and certain o ~ her categories of ,_ voters who were exempt, but that was before Congress stepped into the situation and, in terms of its own authority, ' there is a whole line of cases which holds that so long as Congress does not assert its authority, State regulations may remain in effect and may, indeed, be constitutional without contravening the power of Congress, when Con g ress chooses to exercise it.

I cite next the case of Davis v. 0 :'1- io (241 U . S. 565 ) , which dealt with r e di s­ tricting in that State. There , again, the ' . Supreme Court stated that Congress had the express power to prohibit the way in

· · · · t' h d ..... ~ d b th which red1stnc mg a ucen one Y e · State. so long as the c:ongress chose to exercise that po.wer. Since the Congress had • not chosen to exercise the power, the Court held, the State retained the power. A similar case was Smiley v. Holm (285 U.S. 355) ' in which the Court s~ated thatCongress . has a.general~uper- 'Vlsory. power • over .tJ:le whole sUbJect . of congressional elections. .

The most convincing case in terms .of r the authority that . we are . discussing J to- , day is United States against -- Classic, in which convictions - were upheld under a Federal statute prohibiting the denial of rights secured by the Constitution for. altering . ballots cast m a primary election. The question . was whether constitutional guarantees applied to primary elections. In that case, · the Court said, at page-310: Such right as is secured by the Constitution - to qualified voters - to choose Members of the House of Representatives is thus to be exercised in conformity to the requirements of State law subject to the restrictions prescribed by section 2 a~d to the authority conferred on Congress by section 4, to reg- , ulate times, places, and manner of holding elections :ror Repres · entatives. ·

And at , page 3l5: _

While, in a loose.-sense, the right to vote for . Representatives ~ .. .in .. Congress is sometimes spoken of as - ~ right derived from the State [.citations . omitted], 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 · !', to the · extent that Congress · has not restricted State -- action by · the- exercise l · of its - powers , to regulate elections .under section 4 and its more general power under 162 : article I, section S ; _ clause 18 of' the 9ons~i- tution · "To · make - all : law~ which shall · be necess.ary and proper for carrying into execution the foregoing powers." ·

Madam President (Mrs. NEUBERGER in , the .. chair), it · has also :::. been argued—and quite prop:erly, I think—that under present conditions the poll tax is ; an abridgt f h · ht d · ·1 . men o t en~ . san PriVl eges o Cl I- zens of the United States. One of those rights and privileges is the right to . vote for Federal officials; and it seems to me that , the imposition of a tax on any such right is clearly an abridgment of the rights and privileges of citizens. ·

It is argued that there were property qualifications in the States at the time : of ratification of .. the Constitution ~ and that they were not considered as anything other than · the normal course of events at that time : · But the difficulty lies in the contrast between the situation of the country then and the situation today, when the passage of time has made us feel that the voting right should · not be - encumbered either by a property qua!i- fication or by any financial . considera- - tion, and that Congress can assert that the developments in our whole social order now result in making what - may formerly have been considered tolerable · as an institution, an encumbrance under - present -conditions and an abridgment of the rights of citizens to exercise their rights and privileges as citizens of the United States. . . .

And finally there 1s the constitutional provision-one not too often construedwhich relates to the duty of the Federal

Government · to provide for · every · -state a republican.form of J government. · .

It '11 b t d · th t · · thi 8 d' · ·

Wl . e ' -!1° e . a ~ _ lSCUSSlO? of ~nst1tutu~nallty-which I repeat lS mainly premlsed ~· on the · two points of the times · , places, and manner of · holding · Federal · elections, which " are clearly within the power of Congress, and · upon the · obstruction of, or imposition · of a b th · ht to · .

~rden -on, . e. ng · · exercise ones rights and PriVIleges · as .a citizen of the United States-ther _ e 1s -~ yet another point ; namely, the way - in which -the poll tax has worked to discriminate · against Negroes in - the exercise of · · the ,... voting right, so that Congress has · power to · act under the 15th amendment. · · yve d~ not have as much evidence on this subJect as we have With respect to use - of the literacy test as a means of discriminating in . connection with voting. However, we are by - no · means without evidence · on this · subject. For - instance it is very interesting to me to note that the Senator · from Florida, in arguing in favor of his amendment, has always argued as a fact, and has given figures · from - his own State to show that removal of ~he_ poll tax as · had a · material effect m increasing the number of voters there and · also in increasing the number of those who seek · to vote. I think - that is a · most important argument, · and 1t is -an · additional plea in favor - of adoption of this proposed constitutional amendment.

But on the negative :Side, and m regard to use- of the poll tax for purposes of discrimination, I should like to ref-er first to the 1961 · report · of - the Civil Rights Commission on voting, a;t page A stnkm~ . situation _ exiSts in . one .of the eight counties, Issaquena, Miss., where no Negroes . are registered to vote .- A wealthy WI Negro · landowner and merchant pays more than $2,000 taxes annually t6 his county, and when bond . issues are approved by · the white electorate, he carries. a large share of the financial burden. Yet, he says, as consistently f - ·t· .. as he proffers his $2 poll tax along with his other · taxes it is refused by the collector. Let us remember that in most of these States, - the · poll · tax has to be paid long before the time to register and the time to vote. Hence, the poll tax is a tipoff to the authorities that a particular Negro may have decided that he wants to vote; · and then all the machinery is set in motion to discourage him from what some in that area consider to be a very bad idea.

Madam President, in the testimony recently taken before a subcommittee of the Judiciary Committee of the other body in regard · to the poll tax, there was evidence from two citizens of · Mississippi; and · I should like to · read part of that evidence, . if I may, to my colleagues, because it gives some idea of how the poll · tax ·s used. The · chairman of the committee was addressing Mr. Smith, a witness:

The CHA~:tMAN. Have you had any ' experien:ce to indicate that? Did you do any checking · on · records or have · you had the experience · to indicate that the removal of · the poll tax would be a · great improvement relative to th& number of Negroes who can register and vote?

Mr. SMITH. Maybe · I could substantiate this with an experience - iii Holmes countythat is , in central - Mississippi. · The county · seat · is. .about fifty . miles . from the State capital, which is Jackson. where I live.

There is a small college operated for Negroes . there. · They have StudentS from _ om thirteen · foreign : countries. '" The president bf that college is a- Negro woman; Dr. Mallorey, -well educated. · She has traveled around the world , and knows her way around.

She has a farm about .,. 2 miles from the - • . school. She sent the check for her taxes on her farm, - and included $ 2 - to pay · her poll tax . . · The · man · wh.o ' ts chief _ deputy sheriff now--his wife at ' present · 18 the shetiff_;_the .rita.n · who is chief ' deputy sherift~he served the · last · time and · his · wife succeeded himsent the- check back . and e;verything and · he used language that -I :would - !eeLembanas.sed - to use before this committee. . -- -- . . But _ ln substance . finally ~e . said-;h.e ·_ didn't use words that are worthy of . repeating in your presence, · but it had reference& ' to . Negro citizens paying their poll taxes. · ·

He said when he got ready for them to pay them, · he would send for them, · Not one Single Negro in that county—and in connection . with that, Negroes constitute the . majority of the . population in that . t county.

And so forth : · So that iS another factual example.

Also, · Madam President, the · Departt f t' - h . · t't t rt· ti men o . Jus _ 1ce as 1ns . 1 u ed .li.lga _on on the ground . that the poll tax IS being used as a means of discriminating against Negro voters in Tallahatchie County, Miss. The title of the case is United States ag-ainst · Dogan : The di.s­ trict court has · denied · a motion . by · the - 'Government for a preliminary injunction d · · th t d f 'th 10n ~n · e . ground a no good ai effort was.mad~ t~ pay the poU tax. But again I cite this instance to lend some factual . bas1s--which I ~hmk - very clearly exists-for - the point that payment of the poll tax can be used, and as -a matter · of fact is used, - as one of a number of means of . discrimination in connection

'th th . f th . ht t 't e exercise o . e right . o V? e.

- Madam President, 1n a soCial senseand I believe it important to analyze · this aspect-the poll tax is certainly -· a discouragement to voting, especially in the areas and upon those whom it affects with the greatest impact. Although the poll tax IS not large m amount, the difference between the amount of income enjoyed by citizens who do vote and the amount of income of citizens wJ:w apparently can very easily be discouraged from voting is very marked. For example, the national figures show that in 1956 the average per- capita income of white citizens was $2,917, whereas the average income for individual nonwhite citizens was $1,075. These are figures from the 1960 Bureau of the Census report.

· Also, when one looks at the rates of nonwhite income in the South, something in the amount of $23 or $25 a week, he can see that a cumulative poll tax, which is the case in some of the States that have the poll tax, can take away a material part of a week's pay. This is not to say that it is a burden that is absolutely impossible, but it is a material drawback to the exercise of the privilege, and the Federal Government, through the Congress, has a right to act in this field, under the economic and other conditions we presently face in our country. Madam President, lf I may, I wish ~o - summarize tl'le argument I have made m favor of the statutory approach. I have not detained the Senate long, because this matter has been debated once before. I would - like to summarize the situation - as follows:

First and foremost, the path of a constitutional amendment, which - ha.S been around here for the - last 14 . years, has never been a path which the other body has followed. · The other body has consistently; on five separate occasions, voted a statutory means for outlawing the poll tax. The only · opportunity which the Senate has had to vote on it was in 1960, when the · constitutional amendment which it passed came to naught in the other - body .;- ·· The Senate has on one previous : occasion, in 1945, had a statutory provision reported by the Judiciary Committee. .

If we adopt the constitutional amendment, we shall have to double back on our tracks and adopt a statute, because the -amendment is not self -implementing. On the other · hand, if we enact a statute, · it immediately becomes operative and the poll tax is removed in the five states in which it remains. .

Before I leave the constitutional amendment process, it has been stated · there - is some - doubt-and 1 think there is some · doubt-as . to ratification when we have 11 States which did not ratify the amendment · to give voting rights to citizens .of the District of Columbia, . and when we have 12 States which disqualify . voters . who . are defined as paupers, with · the possibility that certainly 2 of those . States will , prefer to leave the system as it . is now , instead . of running the risk of what the amendment will or will not do in respect of paupers. A brief . - word . on . the . question of whether it is constitutional I have before given the . opinion - of . the Attorney Genera-l .of the United States, which I submit is entitled to be very seriously listened .to - by the Congress . . I am re- . ferring to the . opinion of the - Attorney _ General as . he . testified - .on. the question on March 15, 1962, before a . subcommittee of the Judiciary Committee of the House of Representatives. He said·

Let me · turn now to House Joint Resolution 404 and other proposals to abolish state poll tax laws. _

For -the past quarter century, Congress and the Nation have been keenly aware of the unfair burden . caused by such la'ws.

Federal legislation to eliminate them, either by statute or by constitutional amendment, has been introduced in every session since 1939. Anti-poll-tax bills were passed by the House five times. Similar proposals have been favorably reported by Senate committees, and 2 yea:rs . ago, one such measure passed · the Senate.

I a.m completely ln favor of these proposals. In the second half of the 20th century poll tax laws are out of date.

Only five States still have them-Alabama, . Arkansas, Mississippi, Texas, and Virginia. Within recent years Florida, Tennessee, South Carolina, and Georgia, among others, have . dropped these. antiquated requirements. . ents. _ The State of · Florida reports a notable increase in registration to vote since it abandoned the - poll tax. · So does Tennessee.

And so forth. Now I come to the question of constitutionality ill the Attorney General's opinion. He . said the following at page 9 of his statement:

How poll tax laws are to be eliminated is up to the Congress. I believe that- C< ; Congress h~ the power under the Constitution to — enact. legislation . .abolishing State poll tax laws applied to Federal elections. I believe 1t has this power under sections 4: and 8 of · article I of the cOnstitution, which I have ~ already discusSed; under section 4 of article · IV, which · gives -the Federal Government a responsibility to guarantee a republican form of government to the States; and under the 14th and 15th amendments-

The , basic .reason for my belief is this: In America, the right to vote is the rule and . restrictions on that right are the exception. ~ The poll tax is an arbitrary and meaningless · requirement, having no reasonable relationship to the rights and privileges of citizenship, -and it may therefore · be forbidden under the provisions · I have mentioned. - Nevertheless, a constitutional amendment is a realistic and . commendable path to the same _ goaL There should . be little doubt . of speedy ratification of such an amendment, since 45 of our 50 States already do not have such useless legislation.

I, therefore, endorse this method of eliminating poll . taxes as . a condition for voting in elections for Federal officers.

In short, the Attorney General found the statutory method perfectly constitutional. He · also found the constitutional amendment route to be perfectly valid. In view of the fact · that the administration's · proposal was iihe · amend- · ment route, he · adopted that. But it seems · to me that the Congress unques:- tionably has the power to proceed by the statutory route, and the -whole point of my argument today is that it ought to exercise · that power.

A.gain . bY way of summing - up, the power, in : my opinion, is derived froJJl, the authority of the Congress to · deter mine the · times, places, and manner of holding elections for Federal office. It derives · from the right of Congress to eliminate burdens · upon or abridgments of the . right to vote · for F . Federal officials. It applies to the . right of Congress ~so t~ de3:1 under ~e 15th amendment 1 with Situations - ~p~ch . . tend · to cre~te diScrimination m voting, o~ . under the 14th amendment w1~h deprivations .. of the privileges and immunities of citizens. On any one of those grounds, both on the factual basis which I have described, and . on the basis of law which I have referred to, there is ample authority for Congress to proceed by the statutory method.

;Finally, the provision that · states shall have the authority over qualifications for voting is not a provision which defeats the power of the Congress in respect of the matter we are discussing now, because I point out that in the leading case on that point, the case which sustained a poll tax statute a.s · constitu- route. tional on its face, Breedlove against Suttles, the court at no point referred · to th n t lift t• f e poll tax as a qua ca Ion or voting, but spoke of it as a prerequisite. We respectfully submit that prerequisites for voting belong in the category of ti _ times, v places, and manner Of voting, which is within Congress power, rather than in the category of qualifications. Now I would like to _ conclude my argument, if I ;may, upon the substantive aspects of this . question, aside from - m its constitutionality, which I have discussed, and · aside - from the risks of getting a constitutional amendment ratified.

I might say to my colleagues that, of course, we should all try to do our ut- . most to get the amendment ratified if . that is the choice oi . Congress, but, . given the . choice of means and the opportunity : to eliminate . the anachronism by stat­ - ute-and it is an .anachronism-! think ~ we ought to , take advantage of that . opportunity.

I - should like to call the attention of my colleagues to an editorial in the New

York Times which I think properly epitomizes the choice which we face between a constitutional amendment and a simple statute. . The Times says , with respect to the . poll tax amendment:

Congress is taking the long way to a good end in its consideration of a constitutional amendment to outlaw : the poll . tax. Th . is \ archaic system of restricting the right to vote survives in only five · States, and fairness · to both Negroes and whites requires its total discard with maximum speed. "'ItS effective- · in negating democracy is · seen rwith special force in a State such as Mississippi, . where the combination of poll taxes and literacy tests has been a factor in keeping three-quarters of . the citizens from voting.

The quickest way to get rid of this obstacle to true majority _ rule would be through · a simple law prohibiting the States from · making · payment of , a poll tax a requirement . for voting · in Federal elections. But the southern Democrats are not ready to move with such directness, and the administration has decided to settle for the much more cumbersome method of a constitutional amendment. -

Such an amendment cleared the Senate two years ago by a margin of nearly ~ four to . one, but never . came to a · vote in the House. This . year it may again get .lost in the- endless jockeying that . bedevils every effort to inch ahead on the c1v11 rights front. President . Kennedy’s - _ declaration of support for the measure should reduce this noxious passibil.; · ity. · Even after the proposal gets through Congress, it faces a wearying wait for ratifica.tion !>y the States. No sectional controversies were involved in the 22d amendment barring a third Presidential term. Yet it took almost . 4 years from passage to . e . ffecti ve date. A start on abolishing the _ pall tax is already long past due. · · · ·

In short, in view of the tortuous experience which we have had with the _ constitutional amendment route, it seems clear to me that we should take the most direct statutory route • . particularly in view of the fact that notwithstanding the administration's · support for the constitutional amendment, the administration's representative, the Attorney General, who represents the administration on legal matters, no - nonetheless supports the proposition which I have stated, that it is perfectly constitutional to proceed by . the statutory Madam President, under these circumstances it seems to me we should not ourselves invite, without any assurance of success · ess considering past history, the long and tortuous passage on which we shall be embarking if we adopt the con- : stitutional amendment route. We should do something definitive. We have the opportunity to do something definitive. Let us do something definitive. Let us pass the statute. Ultimately w~ shall have to act by statute anyWay. ~t us act by statute now, especially in view of the very strong case which can be made for acting in that fashion.

It was said a long time ago by Salmon P. Chase, "The way to resumption is to - resume." . I say the same in respect to this problem. The way to outlaw this anachronistic poll tax is to outlaw it now, by statute in the Congress, especially since we have every encouragement from - the fact that the other body, having passed such a provision five times, is far more likely to adopt a statutory provision than to adopt a constitutional amendment, which the Senate has passed once and which never got anywhere in the other body.

For those reasons, Madam President, I hope the Senate will support my substitute and the statutory approach toward solving this problem.

Mr. COOPER. Madam President, will the Senator yield?

Mr. JAVITS. I yield.

Mr. COOPER. As I understand the Senator's argument, he takes the position that · either the statutory or the constitutional amendment is adequate to prohibit the imposition of a poll tax by the States. ' ,

Mr. JAVITS. I must say to my colleague that I would not wish to say precisely that--and I am sure my colleague knows my love and respect for him-because he used the word “adequate.” If the Senator w111 allow me to say it my way, I would say that certainly the statutory or constitutional amendment approach, assuming enactment and implementation, would bring about an end to the poll tax.

I have argued. and I am deeply convinced that the statutory approach is by all odds the better way to proceed.

Mr. COOPER. Madam President, will country· the Senator from New York yield further? I do not wish to intrude upon · the time of the Senator from Illinois but this may be the only opportunity ' ity i shall have to make a comment, because I understand that a motion is to be made to table the amendment offered by the Senator from New York. I am led to intervene also because of my great respect for the' Senator from New York. As the Senator knows quite well, I do not believe there have been many legislative issues upon which we have disagreed, particularly with respect to those issues which affect the field of civil rights. Whatever may be said about this issue, and how much it may be quieted down this is an issue which is involved in th~ field of civil rights. ·

I intend to vote against the motion to table, when it is made, because I believe those who support the amendment of the Senator from New York should have as reasonable an opportunity to support this amendment by argument and debate as those who have opposed the Holland amendment. I do not · believe they would use up as much time.

But, because my position would not be known if the amendment is tabled, I state that if a vote comes upon the merits 1 will vote against the amendment offered by the Senator from New York. I do not believe that constitutionally the im-: position of the poll tax by the States can be inhibited by the enactment of a legislative statute by the Congress.

We are in a dilemma. I believe the rights. poll tax has been used in some States to discriminate against voters. I am very thankful we do not have such a tax in oU:r State. · But, I am sure, as the Senator from New York pointed out by reference to specific cases, the poll tax has been used in some States to discriminate against voters.

Nevertheless, the Congress of the United States can move against this discrimination only in a constitutional way. I believe that the only way the poll tax restrictions can be removed is under the terms of the Constitution, and that is by constitutional method.

The Senator from New York and I would agree upon this point, I am sure. We have been debating civil rights issues in the Senate for years, as well as proposed legislation. There is much that can be done if the effort would be made. During the last 2 years, · we have played around the edges of the subject. A few legislative measures have been proposed of doubtful constitutionality. .

I say that the record of . the present administration has been one of avoiding legislative action. Little progress made in the field of civil rights, except in the continuation and extension of measures undertaken and initiated under the administration of President Eisenhower. No legislation has been passed. Emphasis seems to be laid upon the appointment of able and outstanding members of the Negro race to office. This is all for the good and I have favored these appointments, but appointment of a few to office is not a substitute for legislative action to more nearly assure equal rights to all Negroes and all people in this In addition to appointment to offices, the administration has made much of the issue whether a Negro can belong to some club. I have no fault with this administration on either approach, but I assert they do not meet the needs and the necessity of providing by legislation and Executive action equality of rights to all citizens.

I suggest there are some things the administration ~an do and th~ Congress can ~o, If ~here Is really a desire to .come to grips With the problem of CIVil rights. There are measures which can ~e taken Without doubt of their constitutiOnality. Something can be. done in th~ field of housing, by legislative action and probably by Executive actiOn. If It does require legislative action, there is no question about its constitutionality. In 1954 the Supreme Court - ruled upon the Brown case. It has been 8 years since the ruling. If the administration wishes to make progress . in this field it can have . introduced in the Congress a legislative proposal to enable the Att?r- ney General of the United States tomtervene upon behalf of those who are discriminated against, urid . er the Brow _ n decision.

The Senator from New York and I have introduced proposed amendments to the Civil Rights Act of 1957 which would authorize the Attorney General to intervene, , and give to him the same power with respect to integration of schools, as he has with respect to voting I have taken this opportunity to make the point that measures can be taken, both legislative and Executive, which will be effective in the field of · civil rights, and which will not cut across the question of constitutionality. Those measures are not being taken by the administration or by the Congress.

The amendment offered by the Senator from Florida is a good amendment. I will vote for it. I am sorry in this instance I cannot join, as I often do, with my dear friend, a strong fighter for constitutional and civil rights, the Senator from New York.

Mr. JAVITS. Madam President, I am very grateful to my colleague. I wish to join with the Senator in what he has stated about the fact that we are playing around.

Madam President, I think we are not hitting the main point and that we are playing around. I do not say this for a moment in any sense of derogation of the efforts of our friend from Florida.

Mr. COOPER. · I do not, either.

Mr. JAVITS. I think all of us under- stand his position and his sincerity on this question for many years. But in relation to the substance of what we are accomplishing, I say we are still playing around. The administration has asked for only two measures. They are by no means earth shattering civil rights measures. Both are with respect to voting, in which the path has been thoroughly blazed. At the same time the administration "sits on its hands" with reference to an order that would eliminate discrimination in housing. It does not ask the Congress to do anything about segregation in the school systems. It does not even give power - to the Attorney General to start suits in relation to those questions. I could not agree with the Senator · from Kentucky more, and while he and I differ as to the constitutionality of this particular approach which I am urging, nonetheless, be it said, so far as I am concerned, I am offering it to the Senate, working for it here in the Senate, and debating it today because I do not want us to play around. If we really want to get to ultimates, let us at least do something which will be tangible and effective, instead of merely giving people power to do something about something later when they start a suit or when they ratify a constitutional amendment. If we should today pass the statutory approach wh.ich I have proposed, the House passes it, and the President signs itas he will, because the Attorney General J:ia s said that the measure is constitutional:-then we would have done something. We would have outlawed the poll tax, and that would be the end of it in the five States. We would have stopped playing around.

I wish the Senator from Kentucky— and I know completely the purity of his judgment and th~ sincerity of his views-had come to the other conclusion and that he could have joined with me today in trying to do something which would have stopped the playing around even in the very limited area in which the administration is allowing us to operate today.

Let it never be forgotten that we cannot get a civil rights measure of any kind . passed unless . the administration in authority asks for it. This was true with . the Eisenhower administration; it is true with the · Kennedy . administration. I take a . very dim view of the prospects, notwithstanding the great fights which , will be put up by my colleague Senator KEATING on the subject of voting, by myself on the subject of education, and by others to whom were assigned various aspects of the new civil rights package which .. was introduced Qn March 13. Notwithstanding everything . we do, it will take the administration to do more. We understand that. Hence my effort today at least to make what the administration is asking for, limited as it is, meaningful by making the measure a statute which could accomplish something, instead of a constitutional amendment which would go to the other body, where it has never succeeded before, thtm make . the rounds of the States, an~ then come back for us to pass some kind of implementing statute. I say let us do it now. ,

Mr. HOLLAND. Madam President, . will the Senator yield? . .

Mr. JAVITS. I yield. ·

Mr. HOLLAND. I am sorry I have not . h . ea ' . rd all the able argument of the distinguished Senator. I wonder how he has dealt with the question of choice of electors to vote for President and Vice President. I notice that even the distinguished Attorney General, who testified pn this question, testified that it presen ted very great trouble to him, and that it appeared to be one of the principal reasons why he preferred the amendment approach. As a basis for the Senator's comment, may I read or reread, for the Senator has read it already • the provisions in the Constitution on this point? · The first provision to which Irefer is in section 1 of article II, the second paragraph of which reads as follows:

Each State shall appoint, in such manner as the legislature thereof may direct, anumber of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

Besides that provision, the only other provision on the choice of electors of which the Senator from Florida knows is that contained in paragraph 3 of the same article, which he reads as follows: The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States. The Senator from Florida has not been able to figure out any means whereby any mind, no matter how capable in the field of law, could justify interference with those provisions through a statute, and he wonders why the Senator from New York has come to the conclusion that his proposed statute would be legal as applied to this particular field of the selection . of electors to choose the . President and the Vice President of the United States.

Mr. JAVITS. What my statutory approach and what the statutory approach · adopted time and · again in the House seeks to reach is the voter himself. If, therefore, the voter is to vote for electors, then - his - right te vote shall not be inblbited . oz:o encumbered by a poll tax. In short, if he . does vote. the poll tax shall not · represent . ent a pre;requisite to voting. . .. It $.eelll!3 to me that , that scheme is entirely . consistent with every phase of the Constitution. Whatever function the voter performs, he shall perform it free of any requirement for a poll tax. That is the point of my statutory approach, and I think it is the point of the Senator's proposed constitutional amendment. I do not see where we would run afoul of any difficulty in respect of other matters in the Constitution so long as we limit whatever we d,o with . r . respect to . the particular voter and his ability to vote when he is called upon to do so.

Mr. HOLLAND. Madam President, will the Senator yield further?