January 28, 1960 (4)

Those familiar with the Virginia rat1- fying convention know that . Patrick Henry opposed the ratification of the Constitution on the ground that it gave the Federal Government too much power. One issue was whether the Federal Government could pass on the qualifications of the voters or whether Virginia, as in the past, could fix those qualifications. If the latter, the Federal Government would merely determine the t i mes, places, and manner, if it wished to do so, of holding those elections, but those who had the right to vote under the State law would then freely participate.

Wilson Nicholas, a member of the Virginia convention, gave the members positive assurance that the Federal Government could not and never would undertake to pass upon and fix the qualifications of voters.

He was a little too optimistic. But that was the assurance.

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

Mr. ROBERTSON. I yield.

Mr. RUSSELL. I hope the Senator does not mean to impugn the good faith of the delegate Nicholas. I do not believe that any member of the Convention at that time would ever have thought that any Member of Congress would propose a statute undertaking to invade the right of the States to fix the qualifications of voters.

Mr. ROBERTSON. The Senator is correct. It was inconceivable to them. They could not believe that the time would ever come when anyone would stand on the floor of eith e r House of Congress and propose a law to fix the qualifications of voters in any State.

Virginia agreed to ratify the Constitution only on the assurance that the first session of the Congress would propose bill-of-rights amendments to the Constitution, and even went a step further when the Convention named a committee, headed by Gov. Edmond Randolph and including James Madison and John Marshall, to draft a form of ratification that would include certain reservations as to States rights.

I want my southern friends to be reminded of the conditions under which Virginia entered the Union, and the conditions under which she left the Union in 1861. That was when Mr. L i ncoln called for 75 , 000 volunteers to whip 5 Southern States back into the Union.

The resolution reported by that committee and adopted by the Convention said:

The powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and at their will.

Alexander Hamilton could not persuade New York to ratify the Constitution until the same · reservation was adopted with respect to that State.

In explaining the voting plan to the North carolina Convention, John Steele, like Wilson Nicholas, s a id:

Can they, without a most m a nifest violation of the Constitution, alt e r the qu a qualifications of the electors: The po ·w· er over the manner of elections does not include that of saying who shall vote. The Con s titution expressly says that the qualifications are those which entitle a man to vote for a S ta te representative. It is, then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine who these electors shall elect--whether by ballot, or by vote, or by any other way.

In summary, the records of the State ratifying conventions show that there was strong opposition to giving Congress any control over elections. The explanations given in the conventions, demonstrating that the powers of Congress were very limited and did not extend to voter qualifications, sufficiently allayed the fears of the people so that the Constitution was ratified by a sufficient number of States.

SENATORS AND THE 17TH AMENDMENT

The significance of these limitations is reinforced by the adoption as late as 1912 of the 17th amendment. It provided for popular election of Senators in langua g e identical to that of article I, section 2. This amendment says:

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

Thus, the Constitution and the amendments make it even clearer that Congress has no power over the qualifications of electors for Senators than it does in the case of Representatives.

If the manner - of - holding elections does include, as the bills before the Senate purport to declare. the power to fix qualifications for electors, Congress would still have no power to establish the qualifications of electors for Senators. On the contrary, the adoption of this viewpoint takes from Congress the power to regulate the manner of holding elections for Senators.

This is because the 17th amendment expressly provides that the electors for Senator "shall have the qualifications requisite for electors of the most numerous branch of the State legislatures," but the amendment is silent as to the power of Congress to regulate the "time" and "manner" of holding elections. If there is a conflict, the provision of the 17th amendment defining the qualifications of electors, being express and late in time, must prevail over the earlier pro • vision contained in article I, section 4.

Such legislation, it should be remarked, was adopted after more than a century of experience with the suffrage provisions contained in the Constitution and also after there had been ample t i me to observe operations of the newer poll taxes which were adopted between 1875 and 1908. It is a matter of record, however, that when the 17th amendment was debated in Congress, no issue was raised on the right of the States to determine ­ the qualification of electors. But, on the contrary, serious consideration was given to a proposal to take away from Congress, by amendment, the authority to. alter the times, places, and manner of holding elections.

The Senator from Florida [Mr. HoLLAND] recently called attention to the fact that ratification of this amendment was necessary by four out of five Southern States-North Carolina, · Texas, Arkansas, Tennessee, and Louisiana. Each of these at that time in its constitution had poll tax requirements for voting for the election of the most numerous branch of their State legislature-for the constitutions at the time, see hearings on Senate Joint Resolution 126, before a subcommittee of the Committee on the Judiciary, 86th Congress, 1st session, August 17 and 27, pages 31 to 39.

Let us see how the framers interpreted the word "manner." That is what is being relied on in the Javits bill, which will be offered as a substitute. -

Federal i st interpretation of "manner"

Study must now be given to the fourth section of article I. It reads:

The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing S e nators.

The main purpose of this section was to enable both bodies, the State and Federal Governments, to preserve themselves by the regulation of elections. Iil No. 59, Federalist, Hamilton wrote:

It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed; that it must either have been lodged wholly in the National Legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been · preferred by the Convention.

They have submitted the regulation of · elections for the Federal Government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary c . circumstances might render that interposi· tion necessary to its safety.

· Note that Hamilton, always an advocate of strong Central Government and fearful of State encroachments, in at- ­ tempting to win support for the compromise provisions of the Constitution which he had helped to frame, claimed no more than that the national authority might interpose itself in the regulation of elections when necessary to its safety.

He argued that giving the exclusive power . of regulating elections for the National Government to the State legislatures would leave the existence of the Union at their mercy, since they could annihilate it simply by refusing to hold any election for national officials. This is another recurrence of the theme I have tried to develop.

Turning then to the other side of the picture he said:

. Suppose an article had been introduced into the Constitution empowering the United St a tes to regulate the elections for the particular States, would any man have hesi· tated to condemn it, both as an unwarrantable tr a nsposition of power and as a premeditated engine for the destruction of State governments?

. The violation of principle, in this case. would have required no comment; and to an unbiased observer, it would not be less app a rent in the project of subjecting the existence of · the National Government, · in a similar respect, to the pleasure of the State governments . . An impartial view of the mat· · ter cannot f a il to re s ult in a conviction, that each, as far as possible, ought to depend on itself for its own preservation.

Continuing his discussion in the Sixtieth Federalist, Hamilton said that with the House of Representatives being elected directly by the people, the Senate by the State legislatures, and the President by electors chosen for the purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. ·

As to the Senate he said:

It is impossible that any regulation of time and manner, which is all that is proposed to be submitted to the National Government in respect to that body , can affect the spirit which will direct the choice of its members. Also discussing article I, section 4, in the Virginia ratifying convention, Mr. Madison explained:

It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments as being best acquainted with the situation of the people, subject to the control of the general Government, in order to enable it to produce uniformity and prevent its own dissolution.

. And, considering the State governments and General Government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State governments, the General Government might easily be dissolved. But if they be regulated properly by the State legislatures, the congressional control will very probably never be ex e rcised.

This, it should be remarked, deals only with the times, places, and manner of holding elections and not with qualifications of voters since, under the provision of article I, section 2, a State could not attempt to dissolve the General Government by disqualifying voters without automatically dissolving its own government.

It is essentially a distinction between substance and procedure. This distinction was made by a concurring opinion in Newberry v. U.S. (256 U . S. 232, 280 (1920)). Attempting to prove that primaries are a part of elections, Justice Pitney said that the manner of holding elections "can mean nothing less than the entire mode of procedure-the essence, not merely the form, of conducting elections."

Arguments have been made that "manner" does not refer merely to procedure of elections; but to accept that premise is to agree to what the entire thrust of the constitutional debates refute, that the Central Government could back. impose uniform franchise qualifications. Rather, Hamilton argues that once the States set up a qualification, the Central Government could insist that it be carried out, that is, that elections . be held. Hamilton's analysis was quoted by the majority opinion in Newberry against United States, - where Justice McReynolds states that "manner" of holding elections does not mean power broadly to regulate them-pages 255 to 256.

Proponents, in the past, have sought to support legislation similar to that now before the Senate by claiming that to give article I, section 2, its natural meaning is ro create a monstrosity, which will be used at any moment to destroy the Nation. The argument is that to allow the States the power of determining the electorate for Federal officials is to give the States the power to destroy the Federal Government. It is never made clear why the people of the several States, or of any single State, would want to do this, or how they would go about accomplishing this objective. Such an argument, based on an imagined evil, made in the year 1960 about a Federal Government that has lasted 170 years, survived a Civil War, and has continually grown stronger, needs no rebuttal.

Moreover, section 4, article I has been used as the author foresaw, to protect a Federal election from corruption. This will become evident later.

The foregoing history is convincing evidence that the members of the Constitutional Convention and the ratifying conventions intended the Constitution to give to the States and to the States only the authority to prescribe qualifications for voters. The courts have for years followed this interpretation .

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

Mr. ROBERTSON. I yield.

Mr. RUSSELL. I am glad the Senator will discuss · these decisions. It may be of some help to us if the Senator would give the year when each decision was rendered.

Mr. ROBERTSON. I will do that.

Mr. RUSSELL. My attitude toward the court is somewhat like that of a connoisseur toward wine; the year of the vintage has a great deal to do with my conclusions as to the decision.

Mr. ROBERTSON. The Justices who rendered these decisions were very fine jurists, even though some of them may not be inscribed on the walls of fame. These are all Supreme Court decisions, and they are all in line with the principle that the time, place, and the manner of holding elections have nothing to do with qualifications; and that poll taxes are a qualification, and therefore Congress has no jurisdiction over them.

Mr. RUSSELL. I do not believe the Senator will find anything in any decision in any year which is contrary to that general statement. I think that has been uniformly held by the Supreme Court.

COURT INTERPRETATION OF SECTIONS 2 AND 4 OF ARTICLE I

Mr. ROBERTSON. I quote first from an · 1884 decision. That is rather far In ex parte Yarbrough, 110 U.S. 651 (1884), the Court said, after quoting section 2, article I:

The States, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualifications for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State. It adopts the qualification thus furnished as the qualification of its own electors for Members of Congress (at663).

The case just cited was followed by Swafford v. Templeton, 185 U.S. 487 0902). It involved the question of whether a person qualified to vote under State laws, who is wrongfully denied that right, has a cause of action for damages arising under the Constitution of the United States.

In answering this question in the affirmative, the Court interpreted Yarbrough in this way:

That is to say, the ruling was that the case was equally one arising under the Constitution or laws of the United States or from violation of a State law which affected the exercise of the right to vote for a Member of Congress, since the Constitution of the United States had adopted, as qualification of electors for Members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State (at 492).

Please note that since it is the Constitution which adopts them, rather than Congress, that body is without power to alter such adoption.

Likewise, in McPherson v. Blacker, 146 U.S. 1, 27, 35 0892), a case involving the jurisdiction of the Supreme Court toreview the constitutionality of a State law providing for presidential electors, section 2, article I, was discussed.

The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively, to define the method of effecting the object.

Mr. Chief Justice Fuller also said in his opinion in this case:

In short, the appointment and mode of appointment of electors belong exclusively to the States under the COnstitution of the United States. They are, as remarked by Mr. Just i ce Gray In re Green (134 U.S. 377, 379 (33: 951, 952) "no more officers or agents of the United St a tes than are the members of the State legislatures when acting as electors of Federal Senators , or the people of the States when acting as the electors of Representatives in Congress." Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the sam . e day throughout the United States , but otherwise the power and jurisdiction of the State is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and Federal influence might be excluded.

State power over definition of voter qualification was again affirmed by the Supreme Court as recently as June 8, 1959. In Lassiter v. Northampton County Board of Elections (360 U.S. 45), involving an illiteracy test, Justice Douglas said:

The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised [citations omitted], absent, of course, the discrimination which the Constitution condemns (at 50).

WARTIME LEGISLATION FOR SOLDIERS

The distinguished Senator from New York [Mr. Javits] raised the question of the freedom of members of the armed services from the poll tax. In my opinion, there is no analogy at all, for - that was a war measure. Since members of the armed services could not come to their place of residence to vote, Congress said, in effect, "We will send the ba.llots to them, wherever they are." Congress determined the time, place, and manner, as a war measure, and sent the ballots to them.

I am not certain whether it carried a prohibition against the poll tax, or whether Virginia simply adopted a conforming law. But we sent ballots to the men in the armed services and did not even require them to register or pay a poll tax. We relied on their service record to show that they were 21 years old, which was the requirement of our State, and that their legal residence was in Virginia, and that they could vote.

I remember very well that I was in the House the first year the law took effect. With great trouble, I got the name and address of every member of the Armed Forces in the Seventh Congressional District and wrote him a letter in which I stated that I hoped he would vote. I did not ask him to vote for me; I simply expressed the hope that he would vote. Let us bear in mind that nobody wanted to raise a legal question about whether a member of the armed services, who was engaged in defending our liberties, should have the privilege of voting. Therefore, Members of Congress did not question the constitutionality of such legislation. - Moreover, no court has ever ruled on the validity of the Soldiers' Voting Act. In order to cite its passage by Congress against the decisions interpreting sections 2 and 4 of article I, the Senator from New York should discover a court ruling upholding the constitutionality of the act. I believe he can produce none.

PROTECTION AGAINST CORRUPTION OF FEDERAL ELECTIONS

The theory of protection against corruption of qualified voting has been developed both under section 2 and 4, article I.

Controversy over the extent to which the power - of the United States can be employed to protect the integrity of national elections has arisen on several occasions. Efforts to exercise the Federal power have proceeded predominantly under criminal statutes against conspiracies.

Subsequently, a number of cases have arisen dealing with protection of the integrity of national elections. The Supreme Court held that-

(1) The failure of an election board to include the vote of 11 precincts for congressional candidates was unlawful because the right to · vote includes the right to have the vote counted honestly and fairly.

(2) A conspiracy to bribe voters at an election for national officers was not an interference with rights guaranteed by article I, section 2, to other qualified voters.

(3) It was unlawful for election officials to conspire to stuff a ballot box at which a U.S. Senator is being chosen.

The three preceding paragraphs are taken from the report of the United CommisSion on Civil Rights, pages 108-109.

The main discussion of the Court in Yarbrough . was interpretation of section 4, article I, Congress power over the “manner” of holding elections. The theory of protection against corruption was _ first developed in this case.

Yarbrough · and others were prosecuted for interfering by physical attack with the exercise of the right to vote of certain qualified voters in an election of a Member of Congress from Georgia. After holding that Congress under the quoted section could pass an act prohibiting such violence, Justice Miller wrote: Can it be doubted that Congress can by law protect the act of voting, the place where it is done, and the man who votes from personal - violence or intimidation and the election itself from corruption and fraud? (At 661.)

It was not until Reconstruction, . however, that _ the Congress, choosing to exercise extensively its powers under article I, section 4, passed the comprehensive Enforcement Act of 1870 and kindred ­ measures.

It was made a Federal offense to register falsely, to vote without legal right, to : make false returns of votes cast, or to bribe or interfere in any manner with officers of elections. It was also made a Federal offense for any officer of elections to neglect duties imposed and required by a State or Federal law. -

In 1894, Congress repealed, as I pointed out in a colloquy earlier in the day between the junior Senator from Georgia [Mr. TALMADGE] and myself, the portions of this Reconstruction legislation which dealt specifically with elections, but left effective the portions relating to civil rights generally.

The constitutionality of these laws was challenged - a number of times before 1900. As a result of these challenges and resultant court interpretation, the following observations are warranted:

First. Congress need not assume the entire regulation of elections for Senators and Representatives but can make partial regulations to be carried out in conjunction with the States.

Second. Enforcement of article I, section 4, may involve two sets of sanctions: (a) The State may enforce their own regulations; and (b) Congress may both punish delinquency of Federal officers and restrain persons who attempt to interfere with the performance of their duties.

Third. Congress is empowered under article I, section 4, to enact legislation protecting a voter from personal violence or intimidation, and the election itself from corruption and fraud-Ex parte Yarbrough (110 U.S. 651, 661 (1884)); ; United States v. Mosley (238 U.S. 383, (1915)) ; United States v. Saylor (322 u.s. 385 (1944)

Fourth: Federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a State primary election may be · punished pursuant to article I, section · 4-Unitecl States v. Wurzbach (280 u.s. 396 (1930)).

Fifth. The right of the Federal Government to regulate primary: elections conducted under State law for the nominati-on of Members of Congress is · now settled where such primaries are effectively made or sanctioned under State law as "an integral part of the procedure of choice or where in fact the primary ' y effectively controls the choice”— United States v. Classic (313 U.S. 299, 318 (1941)).

- The foregoing summary of the enforcement act is from the Civil Rights Commission Report, pages 114-115.

It is here in the realm of protection · that United States v. Classic (313 u.s. 299, 320 0941)) is appropriate. It points out that section 4 of article I is supplemented by the power of Congress to pass implementing legislation under the necessary and proper clause, article I, section 8, clause 18. The case does not stand for a general regulation of qualifications, for the holding of the case was that a primary was a part of a general election. -

- The foregoing authorities demonstrate that the Federal Government may protect the purity of its elections-but to equate all poll tax statutes with corruption is to miss the point. Those who believe corruption ' is - the result have power to pass Federal legislation specifically outlawing such abuses as the purchase of poll tax receipts.

The distinguished Senator from New York is trying to equate the congressional power to protect Federal elections against corruption with the poll tax, saying, therefore, that the Federal Government can control that form of corruption · by abolishing the poll tax. I maintain that there is no just relationship between the power to insure clean elections and the poll tax or any other property tax which a State has seen fit to impose on everyone in the State who votes for members of the most numerous branch of the legislature. But if the a · assessment is carried out without discrimination, as a Virginia case I shall quote directly said, the courts have uniformly held that it was within the right of the State to do so.

I have endeavored to show that the purpose of the two sections of the Constitution when written and as judicially interpreted does not admit of any restriction on State power to define voter qualifications. Nowhere in the body of the original Constitution will be found a restriction on the discretion of the States in fixing the qualifications of voters. However, restrictions were later added by the 14th, 15th, and 19th amendments. I point out that they were made effective by amending the Constitution, which is the only proper approach that should be taken by those who seek to eliminate the poll tax requirement.

- What is the nature of these restrictions? Do they forbid a poll tax qualification?

THE MEANING OF THE 14TH AND 19TH AMEND• MENTS

The 14th amendment provides:

SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the . State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction · the equal protection of the laws. In Minor v. Happersett, 21 Wall. 162 (1.874), following the adoption of the 14th amendment, a woman argued that a Missouri law which limited the franchise to men deprived her of citizenship rights which the amendment gave her. The court denied her claim, because the right to vote before the amendment was not necessarily one of the privileges or im- _ munities of citizenship, and the amendment did not add to them. "It simply furnished an additional guaranty for the protection of such as she already had"-at page 171.

The court concluded with the statement that it was "unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void"-at page 178.

In U.S. v. Cruikshank (92 U.S. 542, 554-555), decided in 1875, it was said: The 14th amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in dutybound to protect all its citizens in the enjoyment of this principle, if within its power: That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.

In the case of Breedlove v. Suttles (302 U.S. 277, 238 (1937)), a Georgia statute making a poll tax a voting prerequisite to Federal and State elections was attacked on the ground that it violated the 14th and 19th amendments. The tax in question applied to all inhabitants of Georgia between the ages of 21 and 60, with an exception for females who did not register for voting. The court held that the classification of the law, not being an invalid discrimination, did not violate the equal protection clause of the 14th amendment. The court also held that the exemption for women who did not vote was not in violation of the 19th amendment. In the course of its opinion the court also stated clearly that the poll tax was not prohibited by the privileges and immunities clause of the 14th amendment and was a proper qualifica- · tion for voting for the States to impose: To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the 14th amendment. ­ Privilege of voting is not derived from the United States, but is conferred by the State and, save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate. Minor v. Happersett (21 Wall. 162, 140 et . seq.). Ex Parte Yarbrough (110 U.S. 651, 664-665) McPherson v. Blacker (146, U.S. 1, 87-38). Guinn v. United States (238 U.S. 347, 362). The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources. Hamilton v. Regents (293 U.S. 245, 261).

There have been attempts to distinguish the Breedlove case on the grounds that the voting registration was for both State and Federal elections, and thus the necessity for a State to control its own election dictated the result.

But the distinction appears without merit since a later case solely involved a Federal election, Pirtle v. Brown (C.A. 6 (1941), 118 F. 2d 218, cert. den., 314 U.S. This case grew out of the complaint of a citizen of Tennessee, · otherwise qualified, who was refused the right to vote in a special election to fill a vacancy in the House of Representatives because he had not paid his poll tax.

If there could be a more direct issue before the court than that, I do not know what it could be. That is the very issue before us now. He wanted to vote for a Member of Congress, and he had not paid his poll tax. The State officials said, "You cannot vote." The district court found against him. The decision was affirmed unanimously by the Sixth Circuit Court of Appeals, whose opinion followed closely the reasoning of Mr. Justice Butler in the Breedlove case.

The Supreme Court was asked to review the case, but, on October 13, 1941, the petition was denied, without any opinion or statement.

This case is highly significant because only a special election for a Member of Congress was involved, and the refusal of the Supreme Court to review it came as a great disappointment to those who had tried to discount the Breedlove case on the ground that both a State and a Federal election were involved.

TAX ON A. NATIONAL FUNCTION

These two cases also serve to destroy the notion, sometimes advanced, that a poll tax is a tax on a national function, that of voting, and hence unconstitutional. Section I of S. 2868 makes a congressional finding that the tax is on the rights and privileges of citizens of the United · States-to vote? For the sake of argument, let us assume that such privileges to vote, if that is what is intended by the phrase, do in fact exist as privileges of national citizenship.

The taxes imposed by the five poll-tax States do not assess voters as a class, however. In the constitution of each State, exemption is made for certain categories of voters, such as those over 60 or incapacitated. On the other hand, a large class of inhabitants ineligible to vote at all, such as aliens or others not able to meet the residence requirement, are still liable for the tax.

The purpose served by these taxes, ranging from a dollar to three dollars, is for the general school fund of each of these States. · That is a legitimate purpose for incidence of State taxation.

Upon the whole, we think it is reasonable to conclude that the provisions requiring the payment of the tax as a prerequisite to voting do not so much connote a levy and assessment as they · do an effective method of collection. They do not levy a poll tax upon any voter. They give due recognition to the poll tax assessment laws hereinbefore quoted, Pirtle v. Brown (at 220).

The central idea, expressed by Pirtle, that a legitimate purpose for which to raise funds has found a reasonable means of collection, is also expressed by Breedlove:

Payment as a prerequisite is _ not required for the purpose of denying or abridging the privilege o~ voting. It does not limit the tax to electors; aliens are not there permitted to vote, but the tax is laid upon them, if within the defined class. It is not laid upon persons 60 or more years old, whether electors or not. Exaction of payment before registration undoubtedly serves to aid collection from electors desiring to vote, but that use of the State's power is not prevented by the Federal Constitution (at 283) •

THE MEANING OF THE 15TH AMENDMENT

The restrictions of the 14th and 19th amendments have been studied. I should now like to examine that of the 15th, which reads:

SEcTioN 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SEC. 2. The Congress shall have power to enforce this article by . appropriate legislation.

In United States v. Reese (92 U.S. 214 (1875) the Court construed a statute passed under Congress' power of section 2 to enact appropriate legislation. The act was invoked by the applicant because his failure to pay a poll tax enabled the inspectors to prohibit his voting in a municipal election. In the opinion of Chief Justice Waite, the following statement is made:

Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress.

The 15th amendment does not confer the right of suffrage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not.

See also Quinn and Beal v. United States (238 U.S. 347, 362 (1915)), where Chief Justice White stated for the Court that the States retained the power under article I, section 2, to establish qualifications of voters, "except, of course, as to the subject with which the amendment- 15th-deals and to the extent that obedience to its command is necessary."

The same question arose in the Virginia poll tax case, Butler against Thompson. That is about the last case directly on the subject. It was decided in 1951. Circuit Judge Dobie, who was a brilliant teacher at the University of Virginia and a fine member of the court of appeals, rendered the opinion.

VIRGINIA POLL TAX HELD VALID

The question of Virginia poll tax as a prerequisite to voting was reviewed by a special three-judge · court as recently · as 1951 in Butler v. Thompson, D.C.E.D. Va., 97 F. Supp.17, affirmed, 341 U.S. 937. Judge Dobie quoted from an earlier opinion in the case of Saunders v. Wilkins, 152 F. 2d 235,237, as follows:

The decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the 14th amendment. The privilege of voting is derived from the State and not from the National Government. · The qualification of voters in an election for Members of Congress is set out in article I, section 2, clause 1 of the Federal COnstitution which provides that the electors in e a ch State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S. Ct. 205, 82 L. Ed. 252, held that a poll tax prescribed by the constitution and statutes of the State of Georgia did not offend the Federal Constitution.

Then followed the quotation from Breedlove against Suttles, which I quoted earlier.

The latter part of Butler against Thompson discussed the general principle that a statute may be administered in such a fashion as to be unconstitutional even though it is fair on its face, under the 14th amendment, as in Yick Wo v. Hopkins, 118 U.S. 356, or under the 15th amendment as in Lane v. Wilson, 307 U.S. 268. Judge Dobie reviewed the administration of the poll tax in Virginia and came to the conclusion on the basis of the evidence presented to him that it was being fairly administered, without · discrimination on the basis of . race.

Accordingly, Judge Dobie, speaking for the unanimous three-judge court, held that the Virginia poll tax statute did not violate either the 14th amendment or the 15th amendment, and was valid under article I, section 2 of the Constitution of the United States.

ENABLING LEGISLATION OVER POLL TAXES PREEMPTED BY COURT DECISION

S. 2868 and similar bills · would make unlawful all poll taxes as a prerequisite for voting, presumably as a violation of the 14th or 15th amendments. On its face, s. 2868 would prohibit the Virginia poll tax as a prerequisite for voting. But the case of Butler against Thompson, above, had held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, of the Constitution, and neither in its terms nor in its application violates the 14th or 15th amendments. S. 2868 purports to make a congressional finding of a fact which the Supreme Court has held not to be a. fact. It exceeds the power of the Congress under the 14th and 15th amendments to enforce those amendments by appropriate legislation.

REPUBLICAN FORM OF GOVERNMENT

. Not more than passing attention need be given to argument based on section 4, article IV, so dear to the Senator from New York. This section provides:

The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of . them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.

Under this section it is contended that Congress may pass appropriate legislation under the "necessary and proper" clause to outlaw the poll tax because it reduces the size of the electorate, therefore denying a republican form of government. It is added that this legislation will not be unconstitutional since the Supreme Court historically has refused review of such a political question. The short answer to this approach is that the definition of a republican form of government may only be found by examining those of the States when they adopted the constitution. Among the qualifications which prohibited universal suffrage were tax statutes, including poll taxes. See the explanation of this section by Madison in No. 43, Federalist. Moreover, such is the judicial interpretation, Minor against Happersett, above, at pages 175 to 176.

coNcLusioN

Any attempt of the Congress to invade the rights of the States to fix the qualifications of their electors would be a serious threat to constitutional government. The reason for this conclusion is the theme that I have developed today: The supposed power that Congress is asked to exert in order to abolish the requirement of poll tax payment or property qualifications as a prerequisite to voting for Representatives, is a power that the Congress can likewise exert to impose as prerequisites to voting.

I remind Senators, this includes both. There are five poll tax States in the South, and seven which have property qualifications elsewhere, some in the North.

It is impossible for a poll tax or property requirement to bar a person from being an elector for the most numerous branch of a State legislature, without also barring the same person from being an elector for a U.S. Representative. It is impossible because the Constitution says so. The Constitution says that the electors for U.S. Representative shall be the same as the electors for the most numerous · s branch of the State legislature. That is, the electors for the different o:tllces shall have the same qualifications, for it is not necessary that qualified electors should vote for either or both o:tllces.

The reason why the framers of the Constitution denied Congress any power over the qualifications of electors for Representatives is easy to find. They wanted to place this important power in disinterested hands. The framers of the Constitution succeeded in doing so, insofar as it was humanly possible, by using an objective standard.

No one directly establishes the qualifications of electors for Representatives. The qualifications are established indirectly, or in the most disinterested way that could be devised, when the people of the - several States establish the qualifications of electors for the most numerous branches of their own legislatures. Could anyone say that the Members of Congress are disinterested in this matter? It is sometimes thought that the Members of Congress are interested in continuing in o:tllce--in being reelected. Because of this great selfinterest on the part of Congress, it is only natural that the Constitution denies to Members of Congress any power of prescribing the qualification of their own electors.

The basic constitutional right, guaranteed to the people of the United States by article I, section 2, is that of free elec- · tions. Free elections require that the qualifications of the electors for Representatives shall be fixed by disinterested persons in a disinterested manner. The bills before the Senate violate this fundamental constitutional ri g ht.

The qualifications of electors for Representatives and Senators are defined in the Constitution by reference to an objective standard-the qualifications of electors for the most numerous branches of the State legislatures.

I hope I have now demonstrated what the voting "operations" of the National Government are--and how they may only be ascertained by reference to the constitution.

These qualifications are subject to change in only two ways: First, by the people of each of the several States, acting individually and disinterestedly, to redefine the qualifications of electors for the most numerous branch of the State legislature; second, by the people of the several states, acting c:ollectively and disinterestedly, to redefine, by the process of amendment in the manner prescribed in article v, the qualifications of electors as previously set forth in the Constitution.

The people of the several states have used the first method many times to change the qualifications of electors. The people of the several States have used the second method, constitutional amendment, three times in the last 90 years.

In 1869-70 Congress proposed and three-fourths of the States ratified the 15th amendment, which guarantees that the right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude. If Congress has the power to redefine the qualifications of electors the 15th amendment was un· necessary.

In 1912-13 congress proposed and three-fourths of the States ratified the 17th amendment providing for the popular election of Senators. The amendment defines the qualifications of electors for Senators in the same language as the original Constitution defines the qualifications of electors for Representatives. If Congress has the · power to define the qualifications of electors it was unnecessary to do so in the 17th amendment.

In 1919-20 congress proposed and three-fourths of the States ratified the 19th amendment, which guarantees that the right of citizens of the United States to vote shall not be denied or abridged on account of sex. If Congress has the power to redefine the qualifications of electors the 19th amendment was un- . nece s s a y.

Parenthetically, it should be mentioned that the advocates of the power of Congress to define qualifications of electors necessarily must assert that Congress always had the power to abolish discrimination on account .of race and sex in Federal elections, and that the 15th and 19th amendments were only necessary to abolish discrimination in purely State elections.

The argument is untenable for two reasons: First, . if discrimination on account of race and sex was constitutionally valid in State elections it was also constitutionally valid in Federal elections, because Congress has no po.wer to redefine the qualifications of electors. Second, it is impossible under the Constitutions to have in any State one group of electors for U.S. Representatives and Senators and a different group of electors for the most numerous branch of the State legislature. .It is impossible because article I, section :2, and the 1'7th amendment say that these two , groups of electors shall be the same.

The power claimed for Congress in S. 2868 to redefine the ,qualifications of electors as prescribed in the Constitution can exist only if the power of Congress under article I, .section 4, to regulate the times, places, and manner of holding elections overrides : First, the constitutional definition in article I, section 2, of the qualifications of electors for Members of the House of Representatives; second, the power of the States under article .II, section 1, to determine the manner of appointing electors for President and Vice President; and third, the constitutional definition in the 17th amendment of the qualifications of · electors for Senators. If the congressional power under article I, section 4, overrides all these constitutional provisions, it must also override the 15th and 19th amendments.

If, contrary to the plain language of the Constitution, Congress can redefine t . he qualifications of electors so as to abolish duly prescribed poll tax and property requirements as prerequisites to voting, Congress can also, contrary to the plain language of the Constitution, redefine the qualifications of electors so as to prescribe the poll tax, 'R literacy test, race, or sex as prerequisites to voting. The power claimed for Congress over the qualifications of electors is nothing less than · u claim that the power of Congress overrides the Constitution. Mr. President, this to me is a most serious matter, although some persons do not seem to recognize it as such. It involves not only the whole Constitution, but it involves the direction in which we are proposing that our Government go, Is the United States to be a government of law? Are we going to maintain our Constitution? Or are we going to drive holes thr-ough the Constitution for political expediency? Let us call it what it is, and that is what it Mr. President, Congress .should reject S. 2868 because lt undertakes to change, in an unconstitutional manner, the definitions established in the Constitution for electors for Representatives and

Senators, and the manner prescribed in the Constitution for appointing electors for President and Vice President. The right of the people, as laid down in the Constitution, to have the qualifications of electors ascertained by reference to an objective standard, which has been duly established in a disinterested way by the people themselves, is a fundamental constitutional right that must be preserved.

Mr. RUSSELL. Mr. President, will from Virginia. the Senator yield?

Mr. ROBERTSON. I yield to my friend from Georgia.

Mr. RUSSELL. Mr . President, I have had an opportunity this afternoon to listen to a great constitutional argument in the best tradition of the U.S. Senate. The distinguished Senator from Virginia has done a great amount of research in connection with his able and illuminating speech. He has gone back to the days of the Constitutional Convention, made clear the intentions of the Founding Fathers, as demonstrated in the debates in the Convention, and cited the judicial determinations on this subject in such a way as to completely demolish any pretense of validity in the argument that such an action can be accomplished by a simple congressional statute.

I cannot commend the Senator too highly for the magnificent speech which he has made and for the thorough job he has done. I particularly wish to associate myself with his last statement. If we start changing the Constitution by statute we shall set a precedent which will bring down the structure of free government, and do it at a very early date.

I realize, Mr. President, it is very popular of late to speak disparagingly about the Constitution of the United States and to claim that there are easy and short circuits to circumvent it, but those who actually made the sacrifices which gave us this Go~ernment-and no one has set them forth more clearly than George Washington, the first President, in his Farewell Address-thought that the Constitution meant something, All of them thought so. They were men who had known tyranny and who had broken its chains by their own efforts. Again and again they pointed out to posterity, in terms all of us · should be willing to understand, whatever the political implications might be, that it was a dangerous Clark thing to use short circuits in dealing with the Constitution of the United States.

I want to congratulate my friend on Green his able address.

Mr. ROBERTSON. Mr. President, I am very grateful for the lovely tribute my friend from Georgia has paid to me. I am also grateful, as every southerner is, for his wonderful leadership during recent years in our fight to preserve the rights of the States, as guaranteed in the Constitution by the lOth amendment.

I thank the Senator.

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

Mr. ROBERTSON. I yield to my friend from Alabama.

Mr. HILL. Mr. President, I wish · to associate myself with the words of tribute the distinguished Senator fr,om Ge _ Georgia [Mr. RussELL] has spoken on behalf of the Senator from Virginia. As w.e know, the Father of the Constitution, James Madison, came from Virginia. Many of the other great men who fought for and won our freedom in the Revolutionary War, and then contributed so much to the writing .of the Constitution and to the bringing into being of our republican form of government, came The Senator from Virginia has this afternoon given us a most scholarly, profound, and eloquent address. He has, as the Senator from Georgia said, demolished any and all arguments which might be advanced for any abolition of the poll tax by any proposed statute. He has made a magnificent constitutional argument. I am sure if the statesmen of Virginia, who contributed so much to the bringing into being of this Government and to the writing of our Constitution, under which we have enjoyed liberty and freedom and justice, could be present this afternoon they would be indeed proud of the distinguished junior Senator from Virginia [Mr. ROBERTSON].

Mr. ROBERTSON. Mr. President, I thank my colleague for his kind words. He has praised me far beyond my just desserts. I shall cherish the fine commendation he has made of my efforts to bring to the attention of the Senate the views of Virginians, who helped give birth to a new nation and helped explain to us the true meaning of the Constitution and its vital importance.

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

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. CLARK. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. DIRKSEN. Mr. President, reserving the right to object--

Mr. HILL. Mr. President, I object.

The PRESIDING OFFICER. Objection is heard. The call of the roll will be resumed.

The legislative clerk resumed and concluded the call of the roll; and the following Senators answered to their names: Byrd, W. Va. Holland Proxmire

Javits Robertson

Dirksen Johnson, Tex. Saltonstall Dodd Keating Smith Ervin Mansfield Stennis

Monroney Thurmond

Hart Morton Hill Prouty

The PRESIDING OFFICER. A quorum is not present. The clerk will call the names of the absent Senators.

The legislative clerk proceeded to call the names of absent Senators.

Mr. mLL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDENT OFFICER. "TTle absence of a quorum having been announced, the clerk will continue to call the names of .absent Senators.

TheJegisla · tive clerk resumed · and concluded the · call of- the names of a · absent Senators.

The PRESIDING OFFICER. A quorum is not present.

Mr. JOHNSON of Texas. I move that the Sergeant at Arms be directed to request the attendance of absent Senators.

The motion was agreed to.

The PRESIDING OFFICER. The Sergeant at Arms will execute the order of the Senate.

After a little delay Mr. AIKEN, Mr. ALLOTT, Mr. ANDERSON, Mr. BARTLETT, Mr. BEALL, Mr. BmLE, Mr. BRIDGES, Mr. BRUNSDALE, Mr. BUSH, Mr. BUTLER, Mr. BYRD of Virigina, Mr. CANNON, Mr. CARROLL, Mr. CASE of New Jersey, Mr. CASE of South Dakota, Mr. CHURCH, Mr. COOPER, Mr. COTTON, Mr. DOUGLAS, Mr. DWORSHAK, Mr. EASTLAND, Mr. ELLENDER, Mr. ENGLE, Mr. FREAR, Mr. FuLBRIGHT, Mr. GRUENING, Mr. HARTKE, Mr. HAYDEN, Mr. HENNINGS, Mr. HICKENLOOPER, Mr. HUMPHREY, Mr. JACKSON, Mr. JOHNSTON of South Carolina, Mr. JORDAN, Mr. KEFAUVER, Mr. KENNEDY, Mr. LAUSCHE, Mr. LONG of Hawaii, Mr. LONG of Louisiana, Mr. MAGNUSON, Mr. MARTIN, Mr. McCARTHY, Mr. McCLELLAN, Mr. MUNDT, Mr. MURRAY, Mr. MUSKIE, Mr. NEUBERGER, Mr. PASTORE, Mr. RANDOLPH, Mr. RUSSELL, Mr. SCOTT, Mr. SPARKMAN, Mr. SYMINGTON, Mr. TALMADGE, Mr. WILEY, Mr. WIL- -· i.IAMS of New Jersey, Mr. WILLIAMS of Delaware, Mr. YARBOROUGH, Mr. YOUNG of North Dakota, and Mr. YOUNG of Ohio entered the Chamber and answered to their names.

The PRESIDING OFFICER. A quorum is present.