February 2, 1960 (3)

IN THE HOUSE OF REPRESENTA­

TIVES

The Senate resumed the consideration of the joint resolution (S.J. Res. 39) to amend the Constitution to authorize Governors to fill temporary vacancies in the House of Representatives.

Mr. JAVITS. Mr. President, on behalf of myself and other Senators, I offer an amendment in the nature of a substitute for Senate Joint Resolution 39. I ask unanimous consent that the reading of the amendment be waived, and that the amendment be printed in the REcORD.

There being no objection, the amend­ time. ment offered by Mr. JAVITS, for himself and Mr. DOUGLAS, Mr. ALLOTT, Mr. BARTLETT, Mr. BEALL, Mr. CASE of New Jersey, Mr. CHURCH, Mr. CLARK, Mr. COOPER, Mr. HART, Mr. HUMPHREY, Mr . . KEATING, Mr.- LONG of Hawaii, Mr. McCARTHY, Mr. Mr. Moss, Mr. MURRAY, Mr. MUSKIE, Mr. NEUBERGER, . Mr. PASTORE, Mr. PROXMIRE, Mr. SCOTT, Mr . WILLIAMS of New - Jersey, and Mr. YoUNG of Ohio, was ordered to be printed in the RECORD, as follows:

Strike out all · afte-r the resolving clause and insert in lieu thereof th~ following:

"That the Congress finds that the re-. quirement 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 o'ther elections for President, Vice President, Elector for President or Vice President, or for Senator or Member of the House of Representatives is not and shall not be deemed a qualification of voters m: 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 be deemed an interference with the man ner of holding primaries and elections for said .national officers, . ~n , abridgment . nt of · the ·' rights and privileges of citizens of the United States, a tax on such rights and · privileges, and an obstruction of the operations of the Federal 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 or 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." .

Amend the resolving clause so 'as to read: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,".

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, as a considerable number of Senators are in the Chamber, I hope I shall be granted the yeas and nays; and then I shall very much curtail my remarks in the debate. Since this matter has already been discussed, I hope to take but a very short time to discuss it now.

Mr. JOHNSON of Texas. Mr. President, will the Senator from New York yield?

Mr. JAVITS. I yield.

Mr. JOHNSON of Texas. Several regular committees are now meeting, as well as several important joint committees. One of the witnesses testifying is General Power. It will be necessary to resume the . sessions at an early time. I shall be glad to ask that the Senator from New York be given the yea.S and nays, if we may reach a vote in a short

Mr. JAVITS. Mr . President, I ask br the yeas and nays.

The yeas and nays were ordered.

Mr. JAVITS. Mr. President, the amendment I have proposed would do by statute exactly what would be accomplished by . a constitutional amendment, if a constitutional amendment were approved. The basis of my argument is the . following: First, that a statute would be constitutional and would effect the desired result. I shall discuss that very briefly ; I believe it is a conclusive case. But certainly there is argument about it; Second, we should not take a chance on a constitutional amendment, which requires the approval of three-fourths of the States for such a matter as the prohibition of the poll tax, which is an anachronism and should be excised from our law, certainly as it applies to Federal officials, which is what we are talking about here.

Third, for those of us who are deeply interested in civil rights, we are setting a precedent if . we let a constitutional amen d ment be adopted, by which we say, .. If you are trying to legislate with respect to voting on anything which is not specifically within the words of the Constitution, the time, place, and manner, with relation to which Congress can intervene, or the qualifications of electors, regarding which Congress cannot intervene, then you and the other side, which is opposed to civil rights, sustain the argument that you make a precedent by an anti-poll-tax amendment which is submitted to the States."

I shall take up those points in order. First, on the question of constitutionality, very interestingly, such a statute, thus making a finding for the constitutional course, was passed by the other body in the 77th, 78th, 79th, 80th, 81st Congresses. Indeed, it has been reported by the Senate Committee on the Judiciary on two occasions, but in both cases action by the Senate was frustrated because a cloture rule failed. So the euphemistically called extended debate killed both opportunities for the Senate to vote on this proposed statute.

So not only the other body, on five successive occasions, but also the Senate Committee on the Judiciary, on two occasions by a majority vote---there was a minority dissent-reported this particular measure.

As to constitutionality, the constitutional argument for this proposed legislation is based essentially on the fol- lowing points: First and foremost, the poll tax is not a qualification for voting. Qualifications are left to the States by the Constitution. The poll tax is not a qualification for voting; it is a condition precedent to voting. The voter first has to satisfy this condition by paying a tax; then he is allowed to vote according to his qualifications. It seems to me that that is proved by the fact that the tax is universally applied. Therefore, when Congress finds that a tax which is universally applied operates to frustrate or burden or obstruct the right · to vote for :federal officials, Congress has the right to declare that fact and to declare that such exaction shall be illegal.

That also is the answer to the Breedlove case, which in 1937 held the poll tax constitutional. Some authorities point out that that case had mixed in it the question of voting for State officials with voting for Federal officials, and that the person who sued in that instance-the plaintiff--did not make that clear representation. But the challenge of the constitutionality was on the ground that it was an obstruction of the e x ercise of a Federal right when voting for Federal officials.

I do not think that is the material point. I believe the material point is that Congress had not at that time made a finding that this tax represented a burden upon the right to vote for Federal officials, that that is a Federal right protected by the Constitution, and that Congress has the right to declare, therefore, under the necessary and proper clause of the Constitution, that it is a burden on voting, thereby can forbid the States from levying it.

On the question of fact as to whether the poll tax is a burden on voting, we have very interesting testimony, the testimony of the proponent of the constitutional amendment himself. When the distinguished senior Senator from Florida [Mr. HoLLAND], who is a. very eloquent, gifted, and able man, as we all know, testified before the Committee on the Judiciary on this amendment on August 17, 1959, he spoke as follows:

May I say, Mr. Chairman, outside of my prepared statement, that in 1937, as a member of the State Senate of Florida, I was one of those who participated in outlawing the poll tax requirement in Florida which was permitted to be levied as a requirement for voting by our constitution. We outlawed it as a requirement for all kinds of voting, that is, going much further than this proposed amendment, which of course confines itself to the Federal field.

We have had nothing but good results from that action. It has freed certain counties from control by political machines, which was exercised through the payment of a poll tax, by the so-called "courthouse ring" in most cases, or others who had some selfish int e rest. It has resulted in a greater par• ticipation in voting by people of both races. It h a s had salutary effects .

I am strongly sold upon the proposition that to impede the casting of ballots, as is done by the imposition of poll tax requirements or these other requirements which would be outlawed under this proposed amendment, is a hurtful process which prevents t s full realization of the democratic possibilities which are best realized when a lar g e proport i on of the people come to the polls and vote. I strongly believe that it 1s sou n d democracy to have as full participation as possible in our elections.

Mr. President, it seems to me that if we needed a factual basis for a finding by the Congress that the poll tax is a burden on a Federal right, an is obstruction to voting, and is conducive to bad practices and to discrimination against the exercise of the ballot, we have it right there in the findings by one who has that experience in his own State. I respect the views of the Senator from Florida [Mr. HoLLAND], as a lawyer, on the · constitutional questions involved. I have my own views, and I entertain them very strongly. But I believe there can be no d is pute of the view of the Senator from Florida of the facts, as he has stated them, or that the Congress should deClare this tax to be a burden on the enjoyment of a Federal right.

The famous authority in this case is, of course, the decision of the Supreme Court in the case of McCullough against Maryland.

There is also the argument that the poll tax works to the particular disadvantage of Negroes, and therefore violates the equal protection clause and the 15 t h amendment. There is also the argument that the poll tax does not guarantee a republican form of government, within the language of the Constitution. But, as a lawyer, I believe, that one has to take a stand on the basis of the strongest argument, and should not confuse either a court or the Senate by referring to the many aspects of so very complicated a legal question; and I believe the simple issue is as follows:

First, this is a Federal right, as conclusively decided by the Supreme Court in the case of the United States against Classic, to which I S.hall refer further in a moment.

Second, the poll tax represents a burden upon that right. It may not have been such in the colonial days, but it has worked out in that way; and I have read the statement by a distinguished Senator who has had that experience.

So, Mr. President, when the Congress finds that the poll tax is a burden and an obstruction on a Federal right, the Congress, in order to maintain the right to vote for Federal officials, has a right to excise this particular tax from the body politic, whether it is levied by a State or by any other agency of government, because it affects a fundamental governmental function.

The deci s ion of the Supreme Court in the Classic case is very clear in this connection, Mr. President; and I quote now from the majority opinion in that case, which is reported in 313 U.S. 299:

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, 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."

As everyone knows, the Court made Federal statutes applicable to primary elections.

It seems to me that here is probably the latest authoritative discussion of this subject, and that therefore the Congress has the right to eliminate from the law-whether State law or Federal law— a burden or obstruction upon that right. Mr. President, I believe it very important for us to analyze what will happen to this proposal when it is in the form of a proposed constitutional amendment. It will go to the States, and it will be necessary to have it approved by 38 of the States. Let us remember there are five poll-tax States. In addition, in the so-called Deep South there are . at least five other States. Let us also remember that a number of States have some kind of property qualification. They are Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. That makes a total of 15 States which are real possibilities for rejecting this proposed constitutional amendment.

On the time question, inasmuch as it is argued that the constitutional amend­ ~ent course is the surest one, let us remember that the last constitutional amendment-that relating to two terms for the President-took 4 years to be approved by the States.

When we consider the States of the South alone, we find that their populations total 38 million, as compared to the population of the entire United States of approximately 175 million or 176 million.

The method I propose will require only a majority vote in order to do what I believe the law fully allows us to do. On the other hand, I point out that if this matter is handled by means of a proposed · constitutional amendment, a relatively small minority will be able to determine what shall be done. ·

Furthermore, 30 Members of the Sanate, and also Vice President NIXoN. formerly were Members -. of the House of Representatives. So when the anti-poll- ' tax bill was passed by the House, we had a chance to pass on this matter; and we had that chance time and time a,gain. · Let us examine the record in tha.t · connection. · I shall not mention names, because, as everyone here knows; I have greatest solicitude for my personal relations with all other Members of the Senate. I am discussing only the principle involved, We find that 30 Members of the Senate and the Vice President were Members of the House of Representatives during the period when these bills were voted on there. Three of them always voted against the statutory approach, and two of them are from poll-tax States. Four of them split their votes; but all four voted in favor of constitutionality, when that question was raised on a point of order in the 80th Congress. Twenty-four always · voted for the statutory approach.

As a matter of sustaining our own reputations for understanding what we were doing on all those occasions, and in order to do what I believe there is no question that we should do, and to eliminate a real ar.achronism from our · law, and especially in view of the recent decision of the Supreme Court of the United States and the clear evidence that the poll tax is a burden upon voting and is an obstruction to voting for Federal officials, I believe it is · high time that we demonstrate the degree of responsibility and decisiveness that is expected of us by the people who sent us here, by voting this as a · statute-as should be done--and thus here and now end this anachronism in our law and this impediment to the enjoyment by all Americans of fundamental constitutional rights.

Mr. CARROLL. Mr. President, will . the Senator from New York yield?

Mr. JAVITS. I yield.

Mr. CARROLL. Can the Senator from New York tell me whether either a Democratic Attorney General or Republican Attorney General ever gave an opinion in regard to the statutory phase of this question?

Mr. JAVITS. I should like to be able to provide that information to · the Senator from Colorado. However, I cannot do so, because I did not read in meticulous detail, with that point in mind, all the records in regard to the various hearings before the House committee and the Senate committee. I have just now asked my assistant who did the research; and he tells me that he cannot give the answer, either.

However, I have little doubt that the Government departments were asked for opinions on this subject. I have referred to the passage of this measure by the other body on five · occasions and the reports on two occasions to the SenMr . . CARROLL. Assuming that the amendments of the · distinguished Sena- · tor from New York were · agreed to, how long would it take to contest it in the courts?

Mr. JAVITS. Our experience with ety such a process is that the answer can be · now found by means of this process much York. more quickly than by means of any other type of statute, because this would re- · quire only one decision 6y the Supreme to Court. I have little doubt that the stat­ ment ute would be promptly contested and the case heard. · I would say 1 year, at the outside, although that is only an esti­ and mate, based op appeals and Supreme the Court proceedings in connection with have cases of this character. ·

Mr. CARROLL. If I correctly understand the position of the able Senator bate from New York, action by the States on the a proposed constitutional amendment might take 3 or 4 or 5 years.

Mr. JAVITS. Again, if the Senator will allow me, I can only suggest :what experience shows. The last constitutional amendment took 4 years for approval. Other amendments took as little as 11 months. During the Civil War they took a matter of days, but everyone recognizes there were then special cir­ and cumstances. That is why I had made that the analysis of the number of S.tates in the so-called Deep South and the num­ at ber of other States that could, in the aggregate, as compared with the total been number of . States which would have to · approve the proposed amendment, frustrate a constitutional amendment.

Mr. CARROLL. Does the senior Sen­ tion. No ator from New York see any inconsistent position on the part of Senators who had previously voted for the constitutional amendment procedure in voting for the amendment of the Senator from been New York?

Mr. JAVITS. The Senator from New York would like to point out that, in all will honesty, in duty to my conscience and my constituents, I must do what is right tion. as I see it. At the very least, I want to see adopted a constitutional amendment. New I believe we should accomplish our pur­ come pose by statute. I would prefer it done by statute, but I want it done one way- or the other, and want to go on record by my voice or my vote. I made it clear by It my vote how · I would prefer to proceed.

Mr. CARROLL. I may say to the Sen­ tests ator from New York that the junior Sen­ years ator from Colorado feels the same way. · tion, There is an unconscionable voting brir­ tests den which _ can be removed in one of two ways. That is why I voted for th~ · approach of the Senator from Florida, which I think is an intelligent one but would one of last resort; however, to expedite that action, I intend to vote for the statute approach offered by the Senator from · New York, and I see nothing inconsistent in that position.

Mr. JAVITS. I thank my colleague.

Mr. HOLLAND. Mr. President, first I desire to thank my distinguished colleague from New York both for the of brevity of his presentation and for having voted for the amendment taking the · constitutional amendment approach, that which, of course, he could not have felt was completely wrong . . I think the Senator from New York is right . when he confirms the constitutional approach, because . I do not know of any lawyer who questions the propriety or legality from of that approach, whereas there are many lawyers who question the proprior leg . legality of approach by statute · , as offered by the Senator from New

Mr. President, I do not propose . to argue this question , in detail. I intend .

move to lay on the table the amendoffered by my distinguished colleague when I have completed my brief remarks. I desire to call his attention the attention of other Senators to fact that not only in the Southland lawyers questioned the wisdom, propriety, and sufficiency of the statutory approach. I have already in this dereferred to the fact that perhaps ablest lawyer in the Senate, the distinguished Senator from Wyoming [Mr. O'MAHONEY], has repeatedly taken the position that only by constitutional amendment may this question be adequately approached. . The distinguished former Senator from Idaho, Mr. Borah, argued at great length to the same effect. I could continue to mention distinguished men who served in this body in the other body who have taken position.

· I remind my distinguished friend that the hearings-and we have had four hearings on this matter—there have only two witnesses who have insisted on the statutory approach, the witnesses representing the NAACP and the Americans for Democratic Ac- other witness appearing throughout the four hearings in four separate years, argued for the statutory approach · except these two witnesses. Mr. President, I think the question has amply - debated. I move now-­

Mr. ROBERTSON. Mr. President, before the Senator makes the motion, he yield for a question? ·

Mr. HOLLAND. I - yield for a ques­

Mr. ROBERTSON. The Senator from York has asserted that poll taxes · under the category of "manner of · election." Of . course, he has given no support for - that assertion by any legal decision or statute or other authority. is merely a nice contention. In his approach he would repeal the property of seven States. Nobody, in the 20 we have been discussing this queshas ever questioned · the property of the Original Thirteen States, which provided that a person had to · own property before he could vote. By his proposal the Senator from New York · repeal property qualifications, and would make his proposal unconstitutional from any standpoint one could describe. ·

Mr. HOLLAND. I appreciate the very helpful remarks of my friend from Virginia. In conclusion, in passing, I may refer to the fact that every Senator ' who argued extensively against the adoption my amendment, which was agreed to · a few minutes ago, took the position that it was only by constitutional amendment this matter could be adequately handled.

Mr. President, I move-

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

Mr. HOLLAND. I yield to the Senator

North Carolina.

Mr. ERVIN. I will ask the Senator · from Florida if it is not a fact that · during · its last term the Supreme Court in a case which arose in my State of North Carolina, cited the Breedlove case as authority for the proposition that the State had the right to prescribe qualifications for voters, subject to the provisions of the constitutional amendments prohibiting discrimination on account of sex or race.

Mr. HOLLAND. It is my understanding that was the ruling. ·

Mr. ERVIN. Would the Senator, as a lawyer, not consider that case, which was decided as recently as the last term of the Supreme Court, and in which the Court placed its stamp of approval on the case of Breedlove versus Suttles, which was decided in 1937, as a correct ruling on the constitutionality of poll taxes?

Mr. HOLLAND. The Senator is correct. That is my understanding.

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

Mr. HOLLAND. I yield to the Senator from Tennessee.

Mr. KEFAUVER. Many years ago, in the House of Representatives, I saw the matter as the Senator from New York did. Upon arguments presented at that time, there ' seemed to be considerable question as to whether a poll tax could be considered as a qualification. Since I have been chairman of the Constitutional Amendments Subcommittee of the Judiciary Committee of the Senate, I have had occasion to review the cases in more detail, and there have been some later cases. The Classic case has been cited. That case set forth that there was a Federal interest in the matter of election of Federal officials, and other details, and the Senator from New York has referred to them. That case - was decided in 1941.

The most direct case on this subject of which I know-there are quite a number of them-was one that came from my own State of Tennessee, which I have reviewed recently. In that case in a special election to fill a vacancy in the House of Representatives, ' a voter who was otherwise qualified, but who failed to pay the poll tax was refused the right to vote. The Circuit Court of Appeals, by unanimous decision, held that this was a matter of qualification. The same court decided the Classic case. I think, probably after the Classic case was decided-anyway, within the same year-the Supreme Court refused cer ... tiorari from the Sixth Circuit Court of Appeals. So I think that case is important. .

In any event, if this problem is going to be taken care of, the proper way to do it, in my opinion, is by constitutional . amendment.

Mr. JAVITS. Mr. President, will the Senator yield to me before he makes the motion?

Mr. HOLLAND. I will yield to the Senator from New York, but I had promised the Senator from Idaho that I would yield to him, and I now do so.

Mr. CHURCH. I thank the Senator. My question is, If the amendment in the nature of a substitute offered by the Senator from New York were adopted, would the effect be to eliminate the constitutional amendment both as to the form in which it was reported by the committee and - as ~t has now been to amended by the Senate? '

Mr. HOLLAND. It would. That would mean it would eliminate not only the those possibility of correcting for all time the poll tax question, but it would eliminate for all possibility, under the resolution of the the Senator from Tennessee, of curing the defect in our law because of which dent, the House of Representatives might be or could be left without a quorum in the ator event of a great disaster which wou l d wipe out more than half of its Members. dent, I thank the Senator for bringing up than that question.

Mr. CHURCH. I thank the Senator also. I should like to say, for the pur- the pose of the RECORD, that, as the Senator JAVITsJ knows, in the past I have joined as a co- for sponsor of the poll tax amendment, and I have joined as a cosponsor of this proposal. My reason for now voting against this proposal is · -that I think, since the in Senate has taken action on the amendment, and since the amendment includes matters other than the poll tax, it would be improper now to substitute in the ator place of the constitutional amendment table a statutory proposal which is not so · can broad in scope as is the amended pro- throu posed constitutional amendment as it we stands before the Senate.

Mr. HOLLAND. I think the Senator levied. is entirely correct in his position, and I thank him and congratulate him.

Mr. CLARK. Mr. President, will the table will prevail. Senator yield?

Mr. HOLLAND. I yield to the Sena- from Texas. tor from Pennsylvania.

Mr. CLARK. Mr. President , for the purpose of explaining my vote, I should , the like to say to my friend from Florida York that, while I was not a cosponsor of the I ask Holland amendment, I did vote for it. I am a cosponsor of the Javits amendments in the nature of a substitute. I dent, would be happy to · support the Javits proposal were it to be brought to the senate independently for a vote, . but I I ask cannot bring myself to vote for it under in the present parliamentary situation, pared. since the result would be to prevent the passage not only of the proposal of the ment Senator from Tennessee, the original RECORD, joint resolution, bUt also Of the amendment of the Senator from Florida.

Mr. HOLLAND. I thank my friend . from Pennsylvania .

Mr. JAVITS. Mr. President , will the of Senator yield?

I · ld t 0 th S

Mr. HOLLAND. yield e en- States ator from New York.

Mr. JAVITS. Mr. President, I should say like to make one basic point. My argu- ing. ment on constitutionality is based upon the fact that the Congress has not de- · posal clared these taxes to be a burden upon the Federal right to vote, unless it so declares now. Therefore, all the deci- ment sions of the Supreme Court sustaining the constitutionality of the poll taxes There are not inconsistent with that point.

Second, Mr. President, this is the first never time the United States Senate has voted on a statute to eliminate the poll tax. I find hope all Members will remember that. other This is the first time the Senate has voted upon this issue.

Upon that ground, Mr. President, since not this has had a long and arduous history, and since many efforts have been made bring this matter to a vote, it is now ready for a · vote within the next few minutes, and I hoPe very much all of who through the years have contemplated the time when they could vote an anti-poll-tax bill · Will vote against motion to table the amendment. .

Mr. JOHNSON of Texas. Mr. Presiwill the Senator yield?

· Mr. HOLLAND. t yield to the Senfrom Texas.

Mr. JOHNSON of Texas. Mr. President, I came to Congress more

21 years ago the Congress was debating repealing the poll tax by the statutory route, such as is suggested by Senator from New York [Mr. . That issue has been preserved discussion . throughout all those years.

I have done everything I could in an attempt to have the poll tax repealed my State.

I supported the Holland amendment today. I think if the Senate will act favorably upon the motion of the Senfrom Florida '[Mr. HoLLAND] to the Javits amendments that we .

pass the Holland amendment g h this body and that very shortly will see the poll taxes I ' repealed in the five States where such taxes are now I think this way we will get results instead of an issue. I hope the motion to Mr. HOLLAND. I thank the Senator . Mr. President, I now move to lay on the table the amendments offered by distinguished Senator from New

[Mr. JAVITS], and on this question for the yeas and nays.

Mr. JOHNSON of Texas. Mr. Presimay we have the yeas and nays.

The yeas and nays were ordered. Mr. BYRD of Virginia. Mr. President, unanimous consent to have printed the RECORD a statement I have preThere being no objection, the statewas ordered to be printed in the as follows:

STAT EME NT BY SENATOR BYRD OF VIRGINIA

The Javits substitute for Senate Joint Resolution 126 is a double assault on the Constitution of the United States. As a Member the U.S. Senate, I have taken an oath to uphold the Constitution; not destroy it.

The Constitution specifically vests in the the power to establish voting qualifi.- . cations. This proposal would have Congress what shall not be qualifications for votTo give Congress this authority, the proin effect amends the Constitution by statute. The Constitution clearly provides procedures for its own amendment. Amendby statute is not among them.

This proposal is not new. It has been here many times before in similar form. is neither moral nor fundamental basis for its ra . favorable consideration, and there will be.

If the proposal were passed Congress would the requirement that a poll tax or tax to be paid, or that any property qualification to be met, as a prerequisite for voting or registering at primaries or other elections for Federal office is not and shall be deemed a qualification of voters or electors • * • wi:thin the meaning of the Constitution.

With respect to election of the President and Vice President, the Constitution ~n article II, section 1, says: "Each state shall appoint in such manner as the legislature thereof may direct, a number of electors,'" with the further provision that these electors shall elect the . President and the Vice President.

With respect to election of Members of the U.S. House of , Representatives, the Constitution, in article I, section 2, says: "The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the el,ectors in eooh State shall have the qualifications requisite for electors in the most numerous branch of the State · legislature." Members of the U.S. Senate originally were elected by ~he legislatures of their respective States. The 17th amendment . to the Constitution provides for their election directly by the people ot the States. . .

And the 17th amendment says qualifications of voters 1n senatorial elections shall be fixed by the States in precisely the same manner aa provided for House elections. .

Th.e framers of the Constitution were wise and farsighted men. They provided for its amendment, but they protected it from as.­ sault by impatient public officials, temporary majorities, and varying moods of public opinion. .

These are not my words. They are the words of historians who have documented the deliberations of the Constitutional Convention. · Article 5 of the Constitution proVides for its amendment as follows:

"The COngress, whenever two-thirds of both Houses shall deem it necessary, shall propose · amendments to this Constitution, or, on the application of the legislatures of two-thirds ot the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and. purposes, as part of this Constitution, when ratified by the legislatures of three-fourths ot the several · States, or by conventions 1n three-fourths thereof, as the one or the other m . mode of ratification may be proposed by the Congress."

There is no constitutional authority for amendment by statute. The framers considered this procedure. They rejected it deliberately. They foresaw change in the Nation's . basic law with the political winds.

Charles Warren, author of "The History of the Supreme Court of the United States," is an eminent authority on both the unconstitutional prongs of this proposal. I quote from him: _

"In arriving at this method (art. I, sec. 2-1) of disposing of the question of the right to vote, there was a threefold contest in , the Federal Convention of 1787.

"It was between those who wiShed a uniform qualification for electors prescribed in the Constitution; those who wished the · power to prescribe vested in Congress; and those who wished the qualifications to be those prescribed by the States for their own people.

"The l a st group prevailed, and after 2 days of active debate, they left the Constitution in this respect as it now stands in this muchread section 2-1 of article 1."

Voting qualifications in the Constitution are not there by accident. They are there as the product of serious delibe r ation by wise and patriotic men who were motivated by the . best interest of the Nation rather than passing politics. - These provisions have been ratified by every State in the Union, and they have never been successfully attacked either in the courts or in Congress. There is nothing presented here to justify change now.

I quote again from Dr. Warren, who says, i 'No legislature can define the meaning of a word in the Constitution . "

And he says, "There is an absolute absence of any . right granted to Congress to decide or define . what a State by its constitution or legislature could demand of one of its inhabitants in order to qualify him to vote for a State legislature." .. If the Senate wants more of Dr. Warren's documented views, they may be found in the "Library of Congress Memorandum on Poll Tax (H.R. 4920), 1946."

It suffices to say that Congress can no more define the meaning of words in the Constitution than it can insert new words in it. Yet, the pending proposal undertakes to have Congress say what is "within the meaning of the Constitution."

The late Abram P. Staples, an eminent Virginia jurist, is authority for the statement th a t there is "an unbroken line of decisions of the U.S. Supreme Court which recognize the exclusive power of the States to prescribe suffrage qualifications of their electors."

Just i ce Staples found also that "there have been numerous State court decisions sustaining the validity of the poll-tax qualification." If there is competent legal authority for this - proposal, it is not in evidence. This is not only bad legislation fundamentally; but it is bad practicably. If enacted, it probably would result in dual election procedurei-one · for Federal officers and one for local and ' State officers.

It probably would result in dual registration. This would result in cumbersome poll checking . . There would be no end of difficulty and complication.

It is strange, but somehow proponents of so called civil rights legislation seem unable to promote their cause within either the provisions of the Constitution or the accepted and traditional rules of legislative procedure. Mr. JAVITS. A parliamentary inquiry, Mr. President.

The PRESIDING OFFICER. The Senator from New York will state it.

Mr. JAVITS. As I understand the parliamentary situation, a vote in favor of my amendments will be a vote "nay" on the motion to table.

The PRESIDING OFFICER . The Senator is correct.

The question is on agreeing to the motion of the Senator from Florida [Mr. HoLLAND] to lay on the table the amendments of the Senator from New York [Mr. Javits]. On this question the yeas and nays have · been ordered, and the clerk will call the roll.

The legislative clerk proceeded to call the roll. ~

Mr. MAGNUSON (when his name was Brunsdale called). On this vote 1 have a · pair with the senior Senator from MiSsissippi [Mr. EASTLAND J. If he were present and vot­ Cooper ing, he would vote "yea." If I were at liberty to vote, I would vote "nay." I therefore withhold my vote.

The rollcall was concluded.

Mr. JOHNSON of Texas. I announce Bennett that the Senator from New Mexico [Mr. CHAVEZ], the Senator from Massachusetts [Mr. KENNEDY], the Senator from Kennedy Montana [Mr. MANSFIELD], the Senator from Wyoming [Mr. McGEE], the Senator from Utah [Mr. Moss], and the Senator from Montana [Mr. MuRRAY] are absent on official business.

The Senator · from Mississippi [Mr. EASTLAND] is absent because of illness was agreed to. and is confined to the hospital.

The Senator from Oregon [Mr. NEUBERGER] and the Senator from Wyoming [Mr. O'MAHONEY] are absent because of illness. ·

The ·. Senator from Florida [Mr. SMATHERS] is absent on official business attending the Latin American Trade Study Mission as chairman of the Latin American Trade Subcommittee of the Senate Interstate and Foreign Commerce Committee.

On the vote the Senator from Massachusetts [Mr. KENNEDY] is paired with the Senator from Flo r ida [Mr. SM A THERS]. If present and voting, the Senator from Massachusetts would vote "nay," and the Senator from Florida would vote "yea."

The Senator from Wyoming [Mr. McGEE] is paired with the Senator from Utah [Mr. Moss]. If present and voting the Senator from Wyoming would vote "yea," and the Senator from Utah would vote "nay." ·

The Senator from Oregon [Mr. NEuBERGER] is paired with the Senator from Wyoming [Mr. O'MAHONEYJ. If present and voting, the Senator from Oregon would vote "nay," and the Senator from Wyoming would vote "yea."

I further announce, if present and voting, the Senator from · New Mexico, [Mr. CHAVEZ] would vote "yea."

Mr. KUCHEL. I announce that the Senator from Utah [Mr. BENNETT] is absent on official business, and, if present and voting, would vote "nay."

The Senator from Indiana [Mr. CAPE• HARTl is necessarily absent.

The result was announced—yeas 50, nays 37, as follows:

YEAS-50

Bible Fulbright McClellan Bridges Goldwater Martin Butler Gore Mundt Byrd, Va. Green Prouty Byrd,W. Va. Gruening Robertson Cannon Hayden Russell Carlson Hennings Sal tons tall Case, s. Dak. Hickenlooper Schoeppel Church Hill Smith Clark Holland Sparkman Curtis Hruska Stennis Dirksen Johnson, Tex. Talmadge Dodd Johnston, S.C. Thurmond Dworshak Jordan Williams, Del. Ellender Kefauver Yarborough Ervin Kerr Young, N.Dak. Frear Long, La.

NAYB-37

Aiken Fong Morse Allott Hart Morton Anderson Hartke Muskie Bartlett Humphrey Pastore Beall Jackson Proxmire

Javits Randolph

Bush Keating Scott Carroll Kuchel Symington Case, N.J. Lausche Wiley Long, Hawaii Williams, N.J. Cotton McCarthy Young, Ohio Douglas McNamara Engle M.onroney

NOT VOTING-13

McGee Neuberger g~~;~:rt ~~~:fr O ' O’Mahoney

Smathers

Eastland Moss

Murray

So Mr. HOLLAND'S motion to lay Mr. JAVITS' amendment on the table was agreed to. . Mr. HOLLAND. Mr. President, I move · that the Senate reconsider the vote by which the motion to lay on the able

Mr. JOHNSON of Texas. Mr. President, I move to lay that motion on the table.

The motion to reconsider was laid on the table.

Mr. DOUGLAS subsequently said: Mr. President, I regret that I was not able to take part in the discussion on the socalled , Javits amendment when it was before the Senate. At that time I was presiding at a meeting of the Joint Economic Committee, and the committee had before it Mr. William McChesney Martin, the Chairman of the Federal Reserve Board. That hearing took up virtually all the afternoon. ·

Mr. President, I was proud to be a cosponsor of the Javits amendment, and of. course I voted against the motion to table. I had asked the Law Division of the Library of Congress to go into the question of the constitutionality of the Javits amendment, and I received from them an able opinion, which reviews . the history of the law on the subject very thoroughly. It came to the conclusion that the Javits amendment was a perfectly constitutional proposal and could be carried out under the existing Constitution.

I ask unanimous consent that it may be printed in the RECORD following the vote on the motion to table.

There being no objection, the statement was ordered to be printed in the RECORD, as follOWS:

STATEMENT BY AMERICAN LAW DIVISION, LIBRARY OF CONGRESS, IN SUPPORT OF THE CONSTITUTIONALITY OF THE JAVITS' AMEND• MENTS MAKING IT UNLAWFUL TO REQUmE PAYMENT oF A PoLL TAx AS A PREJtEQUISITE

FOR VOTING FOR NATIONAL OFFICERS

Section 1 of the Javits . ' amendments declares that the Congress finds that the requirement that a poll tax or other tax be paid, or that any property qualiflca tion be met, as a prerequisite for voting or registering to vote at primaries or other elections for President, Vice President, elector for President or Vice President, or for Senator or Member of the House of Representatives is not and shall not be deemed a qualification 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, and an obstruction of the operations of the Federal Government.

Section 2 of the amendments makes it 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 or 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.

Bills similar to the Javits proposal have been introduced in the House and Senate during each Congress beginning with the 76th Congress, when the first such bill (H.R. 7534) was introduced on August 5, 1939. The House has passed four such bills, each time by more than a two-thirds majority as follows:

l. Seventy-seventh Congress, H.R. 1024, on · October 13, 1942, yeas 254, nays 84.

2. Seventy-eighth Congress, H . R. 7, o~ May 25, 1943, yeas 265, nays 110.

3. Seventy-ninth Congress, H.R. 7, on June 12, 1945, yeas 251, nays 105.

4. Eightieth Congress, H.R. 29, on July 21, 1947, yeas 290, nays 112.

In each instance the Judiciary Committee of the Senate reported favorably on the-constitutionality of the bills in the version that passed the House (S. Rept. 1662, 77th Cong.; S. Rept. 530, 78th Cong.; S. Rept. 625, 79th Cong.; and S. Rept. 1225, 80th Cong.).

On two occasions the House and Senate have passed legislation containing a provision that members of the Armed Forces shall not be required to pay a poll tax in voting for Federal officers, including presidential elect . ors. The first instance was Public Law No. 712, September 16, 1942, the Federal Soldiers Voting Law. The second time was by way of amendment to the Selective Service Act of 1948. The Langer amendment, as it was called, was a'greed . to in the Senate on June 7, 1948, accepted by the House after conference, and became Public Law 759, June 24, 1948. 62 Stat. 604, 618.

Opponents of legislation by Congress outlawing the poll tax have relied chiefly on two arguments. One argument is that payment of the tax is a qualification for voting properly imposed by the States in the election of Representatives . and Senators pursuant to section 2, article I and amendment No. 12 of the Constitution giving the States the right to fix the qualifications for voting for these officers as follows:

VOTING FOR REPRESENTATIVES

Article I, section 2: "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."

VOTING FOR SENATORS

Amendment No. 12, clause 1: "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six 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."

In their argument that a State may lawfully require payment of a poll tax as a qualification for voting, opponents of Federal legislation on the subject cite four cases, one decided as recently as 1951. These cases are: Williams v. Mississippi ((1898) 170 U.S. 213); Breedlove v. Suttles ((1937) 302 U.S. 277); Pirtle v. Brown ( (1941) 118 Fed. 2d 218); and Butler v. Thompson ((1951) 97 Fed. Supp. 17, aff'd 341 U.S. 937 (per curiam decision No. 713)). ·

In none of the cases referred to was it held that the poll tax is a qualification for voting. They upheld the constitutionality of the poll tax on other grounds. · In each case the poll tax was treated as a revenue measure, and not as a qualification for voting. The decisions are unanimous in treating payment of the tax as a regulation determining who possesses the quallfiation to vote. In Breedlove v. Suttles, payment of the tax is de· clared to be a "regulation" . and "is not required for the purpose of denying or abridging the privilege of voting." (At pp. 282, 283.) Similarly in Pirtle v. Brown, supra, at page 219, the court states:

"The question is, whether the constitution and statutes o! Tennessee, which make the payment of a poll tax a condition precedent to the right to vote for Members of the Congress, are repugnant to any provisions of the Constitution of the United States."

The very Tennessee statute under scrutiny by the court in Pirtle v. Brown made a distinction between payment of the tax and qualifications · of the voters.

In other words, the tax records or poll lists are used to determine who is qualified to vote. The prospective voter pays his tax. This payment is made a condition which he has to m~et before his qualifications are considered. Registration may or may not be . required, but, if so, it likewise is a condition and not a qualification. In this connection it will be noted that in two States requiring the payment of a poll tax, Arkansas and Texas, registration is dispensed with the poll tax lists used to identify voters.

Poll tax lists are similar to registration lists, i.e., they are evidence of qualifications. A registration book is usually by: statute declared to be prima facie evidence of a person's right to vote. Suppose a State required a fee of $1 or more to register. Is there any doubt that Congress could pass a law prohibiting such a fee? Congress could, in fact, appoint Federal registrars and conduct the registration of voters. Congress did on February 28, 1871, pass a statute governing registration of voters in the States and the regulations were sustained in Ex Parte Siebold ((1879) 100 U.S. 371). In this case the Supreme Court said that in making regulations for the election of Representatives, Congress has supervisory power over the subject, and may either make entirely new regulations governing registration, or add to, alter or modify the regulations made by the State. This significant control over the franchise which may be exercised by Congress appears in article I, section 4 of the Constitution:

"FEDERAL REGULATION OF ELEcriONS

"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 place of choosing Senators." It is significant that the Javits proposal in clear language adopts the proposition that payment of a poll tax is not a qualification of a voter within the meaning of the Constitution. This language makes it clear that the tax requirement is simply a regulation— one of inference--and, of course, Congress may by law alter any such regulations the States might impose.

The second argument advanced by opponents of congressional legislation against the poll tax concerns chiefly the manner of electing our President and Vice President indirectly through the choice of electors by the States. Clause 2 of section 1 of article II of the Constitution provides:

"INDIRECT ELECTION OF THE PRESIDENT AND VICE PRESIDENT

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

The electors so chosen are required to meet in their respective States and cast separate ballots for President and Vice President (amendment No. 12). This procedure for electing our President and Vice President, it is contended, gives the States complete control over the presidential election at which electors are chosen and leaves the States free not only to decide whether electors are appointed or elected, but also to fix the qualifications of persons voting at any such election. Cases usually cited to support this contention are In re Green ((1890) 134 u.s. · 377), McPherson v. Blacker ((1892) 145 U.S. 1), and Ray v. Blair ((1951) 343 U.S. 214).

Actually, none of the cases cited as authority for the proposition that Congress may not regulate the election of presidential electors have anything to do with the right of Congress to enact an anti-poll-tax bill. The sole question involved in In re Green was whether a State court had jurisdiction in a prosecution for violation of a State law prohibiting fraudulent voting for presidential elec• tors. The question · presented in McPherson v. Blacker was · whether the State of Michigan could choose presidential electors by districts rather than from the State at large or on a general ticket. The question involved in Ray v. Blair was whether a State [Alaball,la] may permit a . political party to require party regularity by exacting a pledge from its primary candidates for presidential electors.

It would seem absurd to say that Congress could not declare that a requirement of payment of a poll tax in order to vote is an interference with the election of our President, Vice President, Senators, and Representatives · when Congress itself has the ultimate authority and duty to pass on these elections.

For instance, clause 1, of section 5, of article I, of the Constitution gives the House and Senate the authority to judge all elections held to elect Members to their respect! ve bodies:

"House and Senate final judge of election returns.

"Each House shall be the judge of the elections, returns, and qualifications of its own Members."

Acting pursuant to this provision, the House and Senate have decided hundreds of contests and . excluded many Members. In many instances, elections have been declared void because of the type of interferences sought to be correctel by the Javits proposal. During the 59th Congress the House voided the 1904 election in the Second Congressional District of Texas, where a poll tax was levied as a qualification for voting in such a way as to discriminate against residents of cities. Hinds' "Precedents of the House of Representatives," volume 1, page In the case of the presidential election, the votes cast by the electors for President and Vice President are required by amendment No. 12 to be tranmitted to Washington, where they are opened and counted by the President of the Senate in the presence of the Senate and House. If a contest develops out of this count of the vote for President, precedent imposes on Congress the final right to resolve the issue. In making its decision, Congress could refuse to accept votes where interference or fraud has taken place with respect to payment of poll taxes, as was the case of the 1876 presidential election. So it would be absurd to say that Congress does not possess the power to regulate by statute and attempt to prevent in advance the very interference for which it might later void an election.

The Supreme Court has on numerous occasions sustained the right of Congress to enact legislation to prevent interference with the election of the President.

On January 8, 1934, in upholding the Federal Corrupt Practices Act regulating election of presidential electors, the Supreme Court said in Burroughs and. Cannon v. U.S. ( (1934) 290 u.s. 534) :

"The President is vested with the executive power of the Nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the Nation in a vital particular the power of self-protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.

"In Ex parte Yarbrough (110 U.S. 651), this Court sustained the validity of section 272). 5508 of the Revised Statutes, which denounced as an offense a conspiracy to interfere in certain specified ways with any citizen in the free exercise or enjoyment of any right · or privilege secured to him by the Constitution or laws of the United States; and of section 5520, which denounced as an offense any conspiracy to prevent by force, etc., any citizen lawfully entitled to vote from giving his support, etc., toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress. The indictments there under consideration charged Yarbrough and others with conspiracies in violation of these sections. The Court held, against the contention of the accused, that both sections were constitutional. It is true that while section 5520 includes interferences with persons in giving their support to the election of presidential and vice presidential electors, the indictments related only to the election of a Member of Congress. . The Court in its opinion, however, made no distinction between the t . two, and the principles announced, as well as the language employed, are broad enough to include the former as well as the latter. The Court said (pp. 657-658):

"'That a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the legislature is elected by the people directly, has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, 1s a proposition so startling as to arrest attention and demand the gravest consideration.

" 'If this Government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general Government, it must have the power to protect the elections on which its existence depends from violence and corruption.

" 'If it has not this power it is left helpless before the two great natural and historical enemies of all r.epublics, open violence and insidious corruption.'

"And, answering the objection that the right to vote for a Member of Congress is not dependent upon the Constitution or laws of the United States but is governed by State law, the Court further said (p. " 'In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger.

" 'If the Government of the United States has within its constitutional domain no authority to provide against these evils, if the very sources of power may be poisoned by corruption or controlled by violence and outrage, without legal restraint, then indeed, is the country in danger, and its best powers, its highest purposes, the hopes which it inspires, and the love which enshrines it, are at the mercy of the combinations of those who respect no right but brute force, on the one hand, and unprincipled corruptionists on the other.'