Earl Warren: State of South Carolina, Plaintiff, versus Nicholas deB Katzenbach, Attorney General of the United States. Mr. Leverett.
E. Freeman Leverett: Mr. Chief Justice and may it please the Court. Georgia like South Carolina is brought under the Voting Rights Act of 1965 by virtue of the number of first instant voting in the 1964 general election rather in the number of people who are registered to vote that year. In 1964, 63% of all persons of voting age in Georgia were registered, but only 43.2% of the persons of voting age actually voted in the 1964 general election.
Potter Stewart: Voting age in Georgia is 18?
E. Freeman Leverett: That is correct sir. We think that's one reason that is always comparatively a lower percent of people voting in our state because 18-year olds do not tend to register and vote as much as adults.
Byron R. White: You ought to think you have the primary?
E. Freeman Leverett: We did not have a primary of any consequence that year that I recall. We had one in 1962 for governor and the voting in the primary for governor in 1962 I think was somewhat smaller than the vote into presidential election. I'd like to discuss one or two instances of what we conceive to be arbitrary application of the triggering mechanism of the Voting Rights Act then I will deal with Section 5 as a general proposition. The effect of Section 4 is to raise a presumption of discrimination at the registration stage, but Georgia like South Carolina is brought under the Act by virtue of something that happened at the voting stage that only 80% of the registered voters in Georgia in 1964 voted Georgia would not have been brought under the 1965 Voting Rights Act. Therefore, we say that there's no rational connection between the fact presumed and the fact assumed. Secondly, keeping in mind that the Act operates to suspend one aspect of registration because of discrimination assumed to occur at that stage, it appears that Georgia has a higher percentage of its voting age population registered than the five states of Arkansas, Florida, Hawaii, Kentucky and Texas, none of which are subject to the Act. Thirdly, all the 159 counties in Georgia are placed under the Act when in fact complaints of discrimination have been limited to two or three, perhaps four small counties in Southwest, Georgia. We have had only two counties involved in voting rights suits. One county, Randolph County involved a damage suit in 1955. There's been no problem since that time. There were two suits in Terrell County, Georgia in 19 -- one in 1958 and one in the 60's. And in 1964, the Attorney General of United States reported that voters were being permitted to register without difficulty in Terrell County.
Speaker: I'd like to ask you a few questions. Is there any requirement that the Georgia law was deactivated so to speak, were deprived against the literacy test after registration?
E. Freeman Leverett: No sir.
Speaker: -- what I'm saying is that the man is qualified for registration. Was there a [Inaudible]
E. Freeman Leverett: No sir, it is not.
Speaker: And the second question I want to ask you is the legislative record [Inaudible] is there any evidence before the Congress that add to legislation statute [Inaudible]
E. Freeman Leverett: No sir, not in Georgia that I recall. I think there has been evidence that in some states, challenges were initiated in other states, but I do not recall any of that type of thing in Georgia.
Hugo L. Black: But there was evidence of that characteristic to other states.
E. Freeman Leverett: One state that I specifically recall that challenges were instituted on a discriminatory basis by a White Citizens' Council.
Earl Warren: Are challenges permitted in Georgia?
E. Freeman Leverett: Yes sir. We point out that the Negro vote in almost of the urban counties in Georgia is the controlling force. I think Georgia probably has a record. We have 10 Negro members of the General Assembly, two in the Senate and eight in the House of Representatives and yet the effect of the Act is to place all of the counties of Georgia, all 159 counties under the Act when it is obvious that no discrimination has been practiced in Fulton, Dekalb, Muscogee, Chatham and Richmond counties in many, many years and there's no evidence of discrimination in the great majority of the other counties. Since the Act declares that it applies in any political subdivision within a state where less than 50% of the person's of voting age voted, there's no reason why that's even though the state itself voted less than 50%, there's no reasonable reason why that same requirement was not made in the Act as a general proposition so that this Act would be applicable only to a particular political subdivisions where the necessary percentage was not met. Four, the presumption established by Section 4 applies as Attorney General Katzenbach testified before the Senate Committee in any state where the formula has met even though no discrimination in fact existed in that state. Five, although 100% of all of the persons of voting age were actually registered in the State, therefore, conclusively rebutting any discrimination in the registration state the Act nevertheless applies if less than 50% actually voted in the election. The Act does become operative not because of state action but because of the apathy of voters in going to the polls. Six, the Act raises a presumption of discrimination states where literacy test or in effect from percentages of citizen's voting which exceed those existing in other areas to which the Act does not apply namely Texas and the District of Columbia. Seven, the Act covers 120 counties in Georgia, every one of which voted a larger percentage of its persons of voting age than did the State of Texas. There were 71 counties in Georgia where more than 50% of the re -- of the person's of voting age actually voted. None of the larger counties other than Dekalb, I think, and this illustrates to me the arbitrariness of the presumption as applied to Georgia, there's never been any claim of any discrimination in the urban counties and yet those counties voted substantially less percentage of their people of voting age than did many rural counties. Dekalb County is -- which has posted along is the only county of any size in Georgia which voted more than 50% of it's population in the presidential election. The eighth observation that we would like to make is the fact that the Act is not even directly related to Negro voting although every Negro of voting age was registered and actually voted in the presidential election. The Act would nevertheless be applicable if an insufficient number of other persons failed to vote. On the sum total of these considerations, we submit that the Voting Rights Act is left exposed as an unconstitutional effort to supersede the qualifications for voting prescribed by a state. Congress admittedly could not pass a law, striking down these qualifications direct. We submit that it cannot accomplish the same thing indirectly. I think we need to distinguish between the types of classification. Now, under the Commerce Clause, Congress engages in a classification because it does not want the impact of a law to fall on a particular object. In the Voting Rights Act, the Congress undertook to set up a classification or formula because it had to in order to make the Act constitutional. It had to set up a formula which would undertake to make it applicable -- the Act applicable only to instances of racial discrimination. In the commerce type of classification, there is no Equal Protection Clause applicable to Congress and Currin versus Wallace relied upon by the Government simply holds that there's no uniformity requirement other than the Due Process Clause which imposes a very general prohibition against arbitrary action. That is not true here because if the -- if the classification is arbitrary in this instance, it's not just simply a question of due process but it's a question of the Act having an impact in an area where Congress is not authorized to legislate as I would come to momentarily. What the Voting Rights Act seeks to do is to deal with illegal administration by striking at the law itself. This is not permissible. This was settled we think in a case Cummings versus National Bank in 1880. In that case, the state had structured its ad valorem tax laws in such a manner as the Court found to invite discrimination by the equalizers as between varying classes of taxpayers. Moreover, the evidence showed that the law had in fact had this effect and therefore a challenge was made to the law itself and this Court said that a law cannot be held unconstitutional because while it's interpretation is consistent with the Constitution, it is unfaithfully administered by those who are charged with it's executions. We submit that it would be just as reasonable to say that because in times past some states have abused their police power that the laws finding this police power could be suspended under the Due Process and Equal Protection Clause.
Hugo L. Black: What was the case to which you referred Cummings, what?
E. Freeman Leverett: Cummings versus National Bank, 101 U.S. 153. There's some similar language Mr. Justice Black in the Monongahela Bridge case --
Hugo L. Black: In what?
E. Freeman Leverett: -- in 216 U.S.
Hugo L. Black: What bridge case?
E. Freeman Leverett: Monongahela. Coming to --
Byron R. White: Well, is one of your points that the Congress had no evidence whatsoever of discrimination against Negroes in registering in the State of Georgia?
E. Freeman Leverett: No sir. I think they have some evidence of some discrimination. The Attorney General put in his files that showed he had made about 10 investigations in Southwest Georgia.
Byron R. White: Well did this evidence include use of literacy test in a discriminatory manner or just other kinds of discrimination?
E. Freeman Leverett: The two cases that -- he did not report to the Randolph County case. The one case that he put in before Congress did involve the use of the literacy test and abuse maladministration of the literacy test.
Byron R. White: Well, what's your answer to the question I asked Mr. Mcllwaine yesterday? What -- what would be your answer if a state had a -- had a literacy test, but by its terms, the test was applicable only to Negroes?
E. Freeman Leverett: I think --
Byron R. White: Would that be a -- could Congress pass a law of -- have the power to pass a law under the Fifteenth Amendment outlawing that statute, by striking down that statute?
E. Freeman Leverett: By name -- naming the state?
Byron R. White: Yes.
E. Freeman Leverett: I'm not so sure that it could. That is a question that frankly I'm not prepared to answer one way or another, but I don't think we have to reach it because the Fifteenth Amendment of its own force would do that. Neal versus Delaware of course this Court held that the Fifteenth Amendment was self-executing so you would not need a statute. Now, while the Congress --
Byron R. White: So you think that Section 2 is just for passage --
E. Freeman Leverett: No sir. I --
Byron R. White: -- for the Fifteenth Amendment.
E. Freeman Leverett: I'm going to deal with that at this point.
Byron R. White: Well, how about -- let me ask you this then statute -- the statute applied -- the state stat -- literacy test applies generally but it's uncontested and admitted that it's applied in a discriminatory manner and it's -- and only Negroes are asked to pass the literacy test in a regist -- by the registrar.
E. Freeman Leverett: Not -- not universally (Voice Overlap). In some areas --
Byron R. White: Does this Congress have -- would the Congress have power to do anything about that?
E. Freeman Leverett: It's already done something about it.
Byron R. White: Would it have had the power to do anything about it?
E. Freeman Leverett: Certainly, I think the existing law was --
Byron R. White: Under the Fifteenth Amendment?
E. Freeman Leverett: Yes.
Byron R. White: What could it do?
E. Freeman Leverett: It has already done it. It's made certain things of crimes. It has conferred civil calls of action for damages and for equitable relief and in the case that I referred to in Randolph County.
Byron R. White: But your point is -- your point is that they -- the Congress could not suspend the operation of literacy test?
E. Freeman Leverett: I don't think our position is they cannot go after the law itself. I think the Court can after the facts have shown that in that particular area the law has been abused but that's done not to simply --
Byron R. White: You mean a court can suspend the operation of the test entirely?
E. Freeman Leverett: You've already done that in Louisiana versus United States, but there is a distinction between what --
Byron R. White: Do you -- do you accept that case, are you in agreement with the results of the case?
E. Freeman Leverett: Well, I am not. I'm bound by it. I think that upon the basis that it was put that it is sustainable and that is to afford relief against to cure the past injustices but I -- there's a great distinction between that and what Congress has done.
Byron R. White: You say that although a court may do it under the Fifteenth Amendment, the Congress can't?
E. Freeman Leverett: It's a -- let me -- I'm going to be deal with that momentarily Mr. Justice White. I think there's a difference that I will attempt to point out. I would like first to deal with the question raised by Mr. Justice Black yesterday and that is the Congress's power under Section 2 of the Fifteenth Amendment. I'd like to deal with this by posing three hypothetical situations. Suppose Congress should decide in 1967 that the Voting Rights Act of 1965 has not worked, has not been successful, that the only way to enforce the Fifteenth Amendment is to impose severe criminal penalties, and since, suppose Congress further finds that southern juries are not inclined to convict, the only way that this can be made effective that the only way that they can enforce this amendment is by providing for trial by three judges without a jury, would that law be constitutional? Let's take another situation. Suppose that in 1967, Congress should likewise conclude that the Voting Rights Act of 1965 has not been affective and the only way to enforce it would be to deny every state that involved in a discrimination of its equal suffrage in the same contrary to Article V, could Congress do that? Well, you may answer that by saying well that deals with inactive Congress that comes in to direct conflict with another provision of the Constitution. Of course, our reply to that would be that so does the particular act here that Article I, Section 2 and Section 2 of the Seventeenth Amendment which is passed in the states, the right to prescribe qualifications certainly stands as a prohibition against Congress dealing with the problem and I think we can take even a stronger case. Assume this the Congress should decide in 1967 that the only way to enforce the Fifteenth Amendment because of the difficulties in proving discrimination, the Attorney General will tell you that he has to prove a pattern and he has to prove how groups of 15 or 20 White people were treated ten prove how groups of 15 or 20 colored people were treated, compare to show that they were treated different and that is the difficult burden of proof in some instances. Suppose Congress recognizing that concludes that the only way is to simply say that any deprivation of the right to vote for any reason will be proscribed without limiting it to discrimination based upon the race because of the inherent difficulty of proving that. Would that type of law to be upheld under Section 2, I don't think there's any question. This Court held in 1876 that it could not, that is United States versus Reese. The key I think to the construction of Section 2 of the Fifteenth Amendment is the fact that the amendment does not say that Congress can enforce it by legislation. It says by appropriate legislation. Now, what is meant by appropriate? Obviously, it means something. It's a limiting term. It qualifies the word legislation. It cuts it down somewhat. We think that the obvious purpose of the word appropriate was to limit Congress in Section 2 to the scope defined in Section 1 which is discrimination based on race and calls by state action. Legislation which is not limited is not appropriate and Congress cannot make legislation appropriate simply by declaring it so worded otherwise Congress would not distort would be the final [Inaudible] of the Constitution. This brings me to Section 5, a veto power. This Section declares that with regard to any state for which a determination has been made by Section 4 that no new qualification standard practice or procedure different from that existing on November 1st 1964 shall be effective to deny any person the right to vote until either first, the District Court and the District of Columbia makes a certain determination or secondly until the Attorney General fails to object to the law within a period of 60 days after it's been submitted to him. Now, even after such an adjudication by the District Court or failure to object by the Attorney General, Section 5 declares that notwithstanding, that will not act as a bar to any federal court enjoining the use of any such new law or standard. Before Congress, the Attorney General sought to sustain this particular section by drawing an analogy to the freezing principle involved in Louisiana versus United States. But the freezing principle, Mr. Justice White, differs in this -- in these respects from what Congress has sought to do here. First, the freezing principle applies only where discrimination has been found to exist in fact by evidence in a judicial hearing. Second, the freezing principle applies only in the particular political subdivision where this discrimination has been found to exist where Section 5 by the Attorney General's own admission applies to innocent and willful conduct alike. For example in the Louisiana case, the freezing doctrine was invoked only with respect to 21 of the state's 64 countries. Thirdly, and this is very important, the freezing principle is applicable only with respect to the victims of discrimination that is those persons who were during the period, discrimination was taking place where voting age were not disqualified because of conviction of felony or otherwise will qualify under the state law. Section 5 applies regardless of whether the persons involved, wherever the victims were even capable of being the victims of discrimination. Fourth, under the freezing principle, the suspension of state law automatically is ended if the state effectuates a complete re-registration under Section 5, however, even though the state conducted a complete overall re-registration of all its voters in a nondiscriminatory manner, Section 5 would still apply to remove by some court. Coming to the constitutionality of Section 5, we -- it would do good to observe that assuming that the triggering mechanism of Section 4 be held invalid. Section 5 would likewise fall because it's dependent for it's being put into operation by Section 4. But independently of that, we submit that there are two independent reasons why Section 5 cannot stand. The most basic premise of the federal system is that stated in United States versus Harris, every valid act of Congress must find in the Constitution somewhat for its passage. In Slaughter-House cases, this Court recognized that we have in this nation a government of each of the states and a government of all of the states, that it is a dual sovereignty that recognizing that this type of situation that conflicts would inevitably arise between the two governments. The Constitution provided a means whereby these conflicts could be resolved in Article III in which the federal judiciary was created, but the Congress did not say that the federal courts would be a sense of moral of all state legislation. If you were limited to cases in controversies. As stated and as delineated there faithfully in Hamilton's essay in number 78 of the federal and expounded upon by Chief Justice Marshall in Cohens versus Virginia, we think the unavoidable deduction which must be gained from this juxtaposition of dual sovereignty and the judicial power is that no state law can be made to depend upon the ascent or the consent of any federal instrumentality whether the Court or otherwise. Means havebeen provided both for resolving these conflicts when they come before the Court in a case of controversy but their idea of a dual sovereignty refutes the fact that the law of a state can in the first instance be made to depend upon some federal agency of proving it. It's pointed out by General McLeod yesterday that was one of the evils against which the declaration of independence railed where it was said that “for suspending our own legislation and declaring themselves invested with power to legislate for us and all keepers whatsoever”. We submit that if the Congress can suspend the operation of a state law for five years or until some federal court approves it that it can suspend it for a 100 years. The Congress can under the Fifteenth Amendment, let's assume in advance from prior misconduct that all laws thereafter enacted will be invalid, so to could it assume under the Commerce Clause that because states had in some times past, imposed illegal exactions upon interstate commerce that no state income tax or sales tax law that there have to be passed until such time as it had been approved by federal court. Secondly, aside from the power of Congress to require federal approval as a condition generally of a state law becoming effective, we think that the Act here is subject to challenge because of the peculiar nature of the federal tribunal to which this power has been invested. This arises because of the fact that even though the federal court in the District of Columbia makes a favorable determination, its decision is not binding and the law says “that neither the Attorney General's failure to object nor a declaratory judgment entered under this Section shall bar a subsequent action to enjoin enforcement of such qualification prerequisite standard of practice. We submit that this is in effect an effort to invest the federal court in the District of Columbia with the authority to render advisory opinions. It is early as 1792 when Congress sought to vest in the federal courts certain duties in connection with the granting of pensions. It was -- it's been recognized as stated by Circuit Court in the footnote to Hayburn's case, the Court was composed of Chief Justice Jay and Mr. Justice Cushing, “That neither the Legislative nor the Executive branches can constitutionally assign to the judiciary any duties but such as are properly judicial and to be performed in a judicial manner.” One year later in 1793, President Washington asked this Court for an opinion or advice with respect to the construction of certain treaties and the laws arising out of the French Revolution. The Court there respectively declined to do so and since that time no principle has been no more well settled in that the federal courts in Article III do not render an advisory opinion. In Chicago versus -- in Southern Airlines versus Waterman Steamship Corporation, this Court struck down a statute which sought to give the federal courts the duty of rendering an opinion on a matter which would not be binding. This Court said “that would be to render an advisory opinion in its most obnoxious form” and this is precisely what we say Congress is sought to do in Section 5. In the O'Donoghue case, that the Courts in the District of Columbia were held to be constitutional on Article III courts. In the Glidden case, it was recognized that while these courts might also perform certain local functions under the District of Columbia Clause like state courts do in states that this was limited to functions that were local in nature not national in character. That was referred to in the body of the decision as well as in the footnote dealing with the old Federal Radio Commission case. So we say that Congress cannot impose this advisory jurisdiction upon the federal courts in the District of Columbia and in footage with the Glidden case, an effort to do so results in that jurisdiction falling not in the Court losing it's Article III status. The man who authored the Constitution of United States recognized at great times of national stress imperiled to be inflicted upon the public. To this end, this Court was created fortified by the assurance of life tenure and undiminished compensation against what Hamilton referred to as “those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community”. We don't deny the discrimination has existed in some parts of the South. I don't deny that it has existed in some parts of Georgia. I'm not here to defend it. I'm ashamed of it and I join with the Court and everyone else in condemning it, but we would hope that simply because a state has erred in the past, it does not thereafter lose a right to claim the protection of the Constitution. The Voting Rights Act of 1965 was enacted on unusual circumstances. I need not refer to the fact that I think that to paraphrase Justice -- Judge Wisdom that what all Americans know this Court knows and all Americans know that the Congress was deliberating under the pressure and influence of people who were threatening revolution and rebellion in the streets and I would hope that as long as this Court sits that Congress cannot to appease a mob in the streets, invoke an unconstitutional means to achieve a constitutional means.
Earl Warren: Mr. Attorney General.
Nicholas Deb. Katzenbach: Mr. Chief Justice and may it please the Court. The position of the United States in this case can be very simply stated. Section 2 with the Fifteenth Amendment gives the Congress an express power to enforce the prohibition contained in Section 1 against the denial or abridgment of voting on account of race or color. We simply contend that the Voting Rights Act of 1965 is appropriate legislation viewed as a whole and its operating context, it's well adapted, it operates fairly and reasonably to achieve the objective which is as explicitly within the power of Congress to achieve and indeed the provision which puts a duty on the Congress to enforce that provision of Section 1. In developing this position, I want first to describe the actual problem of compliance as it was presented to Congress and as it exists in fact as Congress faced and understood it. The so-called triggers contained in Section 4 of the Act aren't mere mechanical abstractions pulled out of the air. They can't be fairly viewed or understood in isolation from their function, in relation to other provisions of the Act. For example, to the problem of enforcement of Section 1 of the Fifteenth Amendment as understood by Congress, these triggers are temporary, automatic, suspension of inherently dangerous test and devices and they're coupled with the provision in Section 4 (d) which permits more detailed judicial inquiry at the request of any state or subdivision affected. In these two sections, Section 4 should be seen as a single integrated measure for solving problems revealed by experience and demonstrated to Congress by ample testimony. So after outlining the problem which was before Congress and the relationship to the Act to the solution, if time permits, I'll take up some specific objections raised against it.
Speaker: And that's acquiescence.
Nicholas Deb. Katzenbach: Yes.
Speaker: How long did this legislative record --
Nicholas Deb. Katzenbach: The legislative record can demonstrate it visually Mr. Justice that these are the --
Speaker: You have the -- you decide [Inaudible]
Nicholas Deb. Katzenbach: No sir, as the references to that record appear with frequency in the briefs Mr. Justice. The problem before Congress was compounded by the three separate distinct elements. First, literacy test and similar test and devices for determining the qualification of voters were widely used and they're being wildly and persistently used as engines of racial discrimination in violation of the Fifteenth Amendment. So Congress focused its attention first upon literacy test. Secondly, despite prior legislation to enforce Section 1, Congress with ample justification concluded that the scheme of prior legislation case by case, county by county, parish by parish adjudication had proved too slow and ineffective, a remedy for continued denials on a widespread basis of the most basic of all rights. And thirdly, there was urgent need in the national interest to secure compliance with the Fifteenth Amendment and secure compliance now. Turning first to tests and devices as engines of discrimination; Section 4 (c) defines test and devices as including any requirement for the persons of prerequisite for voting or registration for voting, demonstrates the ability to read, write, understand or interpret any matter, demonstrate any educational achievement or it's knowledge on any particular subject, possess good moral character or prove his qualifications by the voucher of registered voters or members of any other class. In so defining test and devices, Congress used experience before it to strike at those forms of qualification, most inherently capable of abuse and where in fact there was evidence that they had been repeatedly abused in violation of the Fifteenth Amendment.
Potter Stewart: I understood from the argument yesterday that there was no such evidence in the current contemporary Virginia.
Nicholas Deb. Katzenbach: There was no such evidence with respect to current contemporary Virginia Mr. Justice. The point that I am making here is that these tests so defined, had in fact been used as engines of racial discrimination in various states and counties where suits had been brought, where the observation of objective observers had noted them and they had been used and used repeatedly on a widespread basis in this. Now, in fashioning the particular trigger in this instance, we contend that the Congress was capable and had the power to include on a temporary suspension basis, areas where it believed there was an inherent danger, the possibility that these tests were being abused, and it did not require to have evidence in front of it that they were in fact being abused at this particular moment in the State of Virginia or in the State of South Carolina or in any of the particular counties or in the State of Alaska that were covered by the trigger. The trigger was based upon the fact, I hope to demonstrate in this argument that these tests were inherently dangerous that they had in fact on many instances been used for purposes of racial discrimination and that the existing remedies of the law were inadequate and that for those reasons in those areas where Congress believed they had been so used or there was a danger that they would be so used, they could temporarily suspend them awaiting a more refined judicial inquiry as to whether or not in fact in those areas they were being abused. The Congress provided that if in fact they were not being abused and had not recently been abused then the proceeding was set up so that the state could escape from the coverage of Section 4.
Speaker: I realize that Congress has -- that Congress has passed the law [Inaudible]
Nicholas Deb. Katzenbach: I think that it would have been possible for Congress to have suspended or even abolish these tests perhaps in every state where they were used.
Speaker: [Inaudible]
Nicholas Deb. Katzenbach: I think the difficulty with that and I would not -- I think they could Mr. Justice have suspended them at least in every state because of this danger had they chosen to do so. I think the reason that they did not was that that raises more difficult questions as to the reasonableness of the legislation and it's propriety because it was clear to Congress that in at least some states, there was very little possibility of these being abused in violation of the Fifteenth Amendment and I think the question raises the difficult point, can Congress abolish or even suspend tests in areas of the country where to make the case most clear, there are no Negroes? And is that necessary and proper to the enforcement of the Fifteenth Amendment for Congress to choose an area where there are few or no Negroes and say that you have to do this to enforce the Fifteenth Amendment. The Congress attempted here to make a more refined judgment on that score and if I would emphasize --
Hugo L. Black: May I ask you a question --
Nicholas Deb. Katzenbach: Yes sir.
Hugo L. Black: -- because it's rather important to me. Am I to understand that you're implicitly assuming or conceding that Congress would not have the power to permanently outlaw these practices?
Nicholas Deb. Katzenbach: No sir, under the -- the question was under the Fifteenth Amendment.
Hugo L. Black: I'm talking about the Fifteenth Amendment.
Nicholas Deb. Katzenbach: No, I -- I do not take that position. I said that I thought that would raise a more difficult question as to the appropriateness of that legislation then I think is raised by the case before us Mr. Justice. But I'm not sure that it could not go so far on the basis of the history and experience of the application of these tests. I said it was more difficult because it would mean the abolition of these tests in parts of the country where they couldn't possibly be used to violate the Fifteenth Amendment. But if I had to come down with the decision on that, I would say yes.
Hugo L. Black: Which state could they not possibly be used. I don't quite -- I don't think that has to be decided here but that's rather a broad statement.
Nicholas Deb. Katzenbach: It is a rather broad statement.
Hugo L. Black: I think we had a case a few days ago from one of the Northern states on that very subject and still have attended.
Nicholas Deb. Katzenbach: No question Mr. Justice that there had been discrimination of various kinds. I have no evidence of discrimination in voting but in many states outside of the -- of the South.
Hugo L. Black: We have a literacy test in New York is it not?
Nicholas Deb. Katzenbach: Yes sir.
Hugo L. Black: Recent case on it, isn't it?
Nicholas Deb. Katzenbach: Two sir. One here in the District of Columbia and the other before a three-judge court in New York.
William J. Brennan, Jr.: May I ask this -- don't they have a state court -- state statute?
Nicholas Deb. Katzenbach: They may Mr. Justice Brennan.
William J. Brennan, Jr.: Not the one involving --
Nicholas Deb. Katzenbach: Not for involving the statute.
William J. Brennan, Jr.: Yes.
Nicholas Deb. Katzenbach: Or one involving discrimination remains.
William J. Brennan, Jr.: No, a literacy test.
Nicholas Deb. Katzenbach: They have a literacy test in Sixth Grade education.
William J. Brennan, Jr.: They had a decision in the Court of Appeals in New York involving the application of [Inaudible] apart from the federal statute.
Nicholas Deb. Katzenbach: Yes.
Arthur J. Goldberg: What state Mr. Attorney General [Inaudible] under the Act?
Nicholas Deb. Katzenbach: As I moved in by the appointment of the examiners in four states in Mississippi, Alabama, Louisiana and South Carolina.
Arthur J. Goldberg: You haven't moved in Virginia?
Nicholas Deb. Katzenbach: It has not moved to Virginia. It's not moved in Georgia, it's not moved in Alaska.
Byron R. White: Was there a question here be any different if instead of the triggering device, the Congress had simply named certain states and said in view of the past history, literacy test provided for in the following states are hereby suspended for five years?
Nicholas Deb. Katzenbach: I think that there's nothing in the Constitution Mr. Justice White that forbids the naming of a particular states. I think that states could have been named if the basis for their naming was objective and even handed I would think that the results of this -- they could have been named in the statute. I think there's a good deal of political resistance to that and I think as a matter of taste and forms and desires, I think there's another reason --
Byron R. White: Well, is that the explanation why Congress didn't --
Nicholas Deb. Katzenbach: That's a part of the explanation --
Byron R. White: That's indeed the non-legal consideration?
Nicholas Deb. Katzenbach: I think that is part of the consideration perhaps they never even got to the questions whether or not there were legal considerations.
William J. Brennan, Jr.: Well, doesn't the choice of the November date in effect identify the states in any --
Nicholas Deb. Katzenbach: It does identify the states but there's always the possibility as indicated indeed by the -- by the hearings as compared with facts afterwards and the application of the formula, the information before Congress was not absolutely exact. For example in the testimony you'll find that 34 counties in North Carolina are included within the trigger whereas in fact after a more refined examination by the census, it's only 28 so that people were let in and out in that phases, and that raises the difficulty I think Mr. Justice White with respect to Congress actually naming at any given state because if the formula, the objective basis for naming them --
Byron R. White: That based on the information they had, they knew what they were covering?
Nicholas Deb. Katzenbach: They knew what they were covering and I think that --
Byron R. White: What they intended to cover?
Nicholas Deb. Katzenbach: And I think it's extremely important that they did.
Byron R. White: Now, that maybe that -- maybe that somewhere in or out they haven't anticipated that based on the information they had then they knew what the law was going to cover?
Nicholas Deb. Katzenbach: They knew what the law was going to cover and I regard that as an extremely important fact. It was stated yesterday by counsel for some of the states that I had said in testimony that before Congress that if it had not covered the states in which we've had repeated litigation, I would have thought that the formula was not a particularly a good formula. I think it's important that Congress, and I -- I would stand on that position. If the formula adopted by the Congress had not covered any of the states where there had been litigation involving voting then I would have thought that formula was a pretty unreasonable one.
William J. Brennan, Jr.: Indeed, wasn't it suggested yesterday I think by Louisiana that there was a choice made even though that brought in Alaska to be sure that Louisiana was in --
Nicholas Deb. Katzenbach: Well, that was suggested by the Louisiana. There was a difference between the House of Senate versions. The Senate version would have included a provision that 20% of the population be non-White and was not included within the House version. It's presently not in the law, but Congress had before it and I would give emphasis to it the information that in these states, the percentage of White -- of non-White population according to the census statistics was preceded 20% in all save, two states of Louisiana -- of Alaska and Virginia where it was a little bit in excess of 18%. And further to that, if you took the percentage of non-White population out of the census with respect to all states, you would find the first six states -- first seven states would include these six southern states only Arkansas which has no literacy test would appear in that as a percentage of non-White to White population and the Congress was very much aware and I think it's relevant and important to the enforcement of the Fifteenth Amendment that there is in terms of inherent risk a substantial non-White population that at least could discriminate it against within those states.
Byron R. White: Well, Mr. Attorney General you -- the evidence -- about Virginia, there was no evidence you say in the hearings concerning the actual use of literacy test for discriminatory purposes. Was there evidence that -- affirmative evidence that they weren't so used, or did the United States in these hearings concede that it wasn't used in that --
Nicholas Deb. Katzenbach: No. The United States did not Mr. Justice concede this in any of these states. We said with respect to Virginia that we had no current evidence of the abuse of literacy test in the State of Virginia. We said something substantially similar that in South Carolina although we did have some investigations going in the State of South Carolina at that point. It was also explained in the hearings by the Attorney General that under a conscious policy in the Department of Justice, our resources had been aimed at those areas where we knew the voting discrimination was most widespread simply as an enforcement policy we had brought suits within -- particularly within Mississippi, Northern Louisiana and Alabama and down through the Black Belt counties because this was the most flagrant areas of abuse as far as voting was concerned and that we believed that there might be voter discrimination, other instances would not be of the same massive character.
Byron R. White: Had there been any suits brought in the District of Columbia by any state that is covered by the Act?
Nicholas Deb. Katzenbach: I believe that Alaska has filed at this point in the District of Columbia. It's either done so or indicated its intention to file. I believe it filed just the other day.
Speaker: I gather in what you said that you're willing to have [Inaudible] this case [Inaudible]
Nicholas Deb. Katzenbach: The -- Mr. Justice, the law was -- the case should be decided on the basis that it was directed at specific areas where Congress believed on all of the evidence before it that discrimination in voting had occurred and/or were believed from other things before the Congress there was a real inherent danger in using such tests and devices --
Speaker: In a more concrete --
Nicholas Deb. Katzenbach: And those areas were by and large identified and repeatedly discussed in the hearings.
Speaker: More or less under the [Inaudible]
Nicholas Deb. Katzenbach: I think I would see some objections sir to --
Speaker: Constitutional --
Nicholas Deb. Katzenbach: -- constitutional objections to not selecting your states on the basis of the same objective criteria. I think that -- I do not believe that the Congress could have selected Alabama simply because it was Alabama or for one reason or another of that kind. I think it could adopt any objective formula and as long as it treated people within an objective formula aimed at getting at the aim to be able to be cured, it could have chosen to name the particular areas that fitted into that -- into that definition. But I think it's important that the criteria that Congress used or even handed criteria as far as the states are concerned.
Potter Stewart: Why is it a matter of constitutional law?
Nicholas Deb. Katzenbach: Because I think that, Mr. Justice Stewart, the appropriate legislation has to be judged by it's reasonableness in terms of dealing with problem and after they're dealing with the problem of the use and abuse of literacy test which was a problem faced by Congress then I think, however, wide or narrow that net is cast, it has to be appropriate to the dealing with this particular problem. And in the face of the record, I was talking to the actual record in front of Congress, with that record in front of them to have said we're going to direct this legislation against Alabama, but not against Mississippi or Louisiana would have raised very serious questions as to whether or not that was an appropriate way to deal with the problem because I could not find any rational basis for the inclusion of Alabama and the exclusion of Mississippi. I can't find a rational basis for the way in which a particular net here, the trigger was determined.
Potter Stewart: You can find a rationale basis for -- if you're right in the answer to my Brother Harlan's question that there would be constitutional difficulties about picking out one or more states and excluding others where the problem exists, you can find a rational basis for the exclusion of Northern Florida and Arkansas and Texas, can you?
Nicholas Deb. Katzenbach: Those three are particularly easy Mr. Justice Stewart because in none of those three is there a test or device?
Byron R. White: Well, precisely that's what -- that's -- can you find a rational basis for the exclusion of those states under this synthetic device that's been devised by Congress.
Nicholas Deb. Katzenbach: The problem Mr. Justice Stewart was to deal with tests and devices which had been repeatedly abused.
Potter Stewart: Yes, but really it's --
Nicholas Deb. Katzenbach: By dealing with tests and devices, it seems to me that attention has to be focused on those states that have them.
Potter Stewart: But you've just told us a little earlier that there was no evidence of any contemporary abuse of this device in the State of Virginia.
Nicholas Deb. Katzenbach: That's correct, but there was a good deal of other evidence before Congress which could lead it on a temporary suspension to suspend those tests and devices in Virginia until there had been more refined, detailed, judicial inquiry into the question whether they were currently being abused.
Byron R. White: Well isn't the significance of the low vote part of the trigger that you get a low enough vote the inferences that there's discrimination.
Nicholas Deb. Katzenbach: Yes. The inference --
Byron R. White: And -- and when there's a -- and the other leg is that the -- did the low vote infers discrimination and when there's a literacy test or some other device, named device there why the inferences had resulted from those devices but --
Nicholas Deb. Katzenbach: It may have.
Byron R. White: It maybe. In a state where there's a low vote but no literacy test, do you think there's no inference of discrimination?
Nicholas Deb. Katzenbach: There's no inference, no. I don't think there's no inference of discrimination (Voice Overlap) situation but it has nothing to do with abuse of tests and devices.
Byron R. White: Oh! I agree with that, I agree with that. But -- and so the low vote infers discrimination and hence the -- just as much in Texas as it does in Louisiana. The low vote infers discrimination from something. It may not be -- it can't be literacy test because there's no literacy test. So what's the rational basis for -- for just covering on your own statement a while ago? What's the rational basis for covering some discrimination and not other discrimination?
Nicholas Deb. Katzenbach: The Act covers all discrimination. There are procedures set out in Section 3 and prior legislation continues to exist which enabled the Government to deal in a more traditional way with discrimination in other areas. There was a testimony before Congress by the Attorney General and by others. They believe that while discrimination might exist, areas not using tests and devices that the problems of establishing and proving and curing this by the process of lawsuit were not as in super bowl as difficult and as die near impossible as they have proved to be where you had tests and devices.
Byron R. White: So I agree --
Nicholas Deb. Katzenbach: The Congress was concentrating on dealing with these aspect of the problem while a great deal of emphasis had been put on the 15% provision, I would put a good deal of emphasis on the fact that Congress was dealing with tests and devices.
Byron R. White: Can you send the examiners into -- into any state where there's discrimination you think but no tests and devices?
Nicholas Deb. Katzenbach: No, but I can bring a suit and there can be with the consent of the Court with the appointment of an examiner right away.
Byron R. White: Under the old law?
Nicholas Deb. Katzenbach: No sir, under Section 3 of this law which expands that power.
Abe Fortas: Mr. Attorney General, do I correctly understand then that it is your position that this statute does not deal with all of the problem of supposed violation of the Fifteenth Amendment, but it deals with a part of the problem and also that it's your position that the Congress has constitutional power to deal with part of that problem?
Nicholas Deb. Katzenbach: No, Mr. Justice Fortas. Perhaps I did not express myself well on that. This Act deals with all of the problem, but it deals with different means and mechanisms of discrimination in different ways. This Act covers all of the 50 states, but it deals with those states which had literacy test differently or at least some of those states which have literacy tests differently than it deals with states which do not have literacy test because the problem of the literacy test was in view of Congress a very special problem with respect to enforcing the rights under the Fifteenth Amendment.
Byron R. White: How many states have literacy test?
Nicholas Deb. Katzenbach: There are 21 states that have literacy tests and I think it's interesting to note in terms of low voter turnout that you get this kind of correlation. There are 21 states that have literacy tests. There were nine states in which less than 50% of the people voted in the 1964 election. That includes seven of the states that have literacy tests and only two did not to the correlation between a low voter turnout and the literacy test is good in that direction. If you turn that correlation around, look at the other 14 states with literacy test and find that in those cases the voter turnout in 1964 was above the national average in every single one of those 14 states. So the low voter turnout can't be geared simply to the existence of literacy test.
William J. Brennan, Jr.: Have you actually gone into state on the basis of any test or device except for the literacy test?
Nicholas Deb. Katzenbach: We -- you mean in past experience?
William J. Brennan, Jr.: In what you've done so far? I mean actually where you've moved in with your expression.
Nicholas Deb. Katzenbach: Well, it's all been -- we've had more as far as the literacy test themselves are concerned, we had more difficulty at first with a more comprehensive and vague understanding tests which were used --
William J. Brennan, Jr.: Is that it? Is that item (c) -- two in subsection (c)?
Nicholas Deb. Katzenbach: No, it would be all part of one.
William J. Brennan, Jr.: Of one.
Nicholas Deb. Katzenbach: They're just different forms of tests that can be used in this situation and --
William J. Brennan, Jr.: Well, you have four --
Nicholas Deb. Katzenbach: We've had a variety of different kinds of tests.
William J. Brennan, Jr.: Well, they actual has four categories, does it?
Nicholas Deb. Katzenbach: Yes.
William J. Brennan, Jr.: I was just interested whether it's on the basis of any -- other than one or perhaps two that you felt it's necessary to move in to the state.
Nicholas Deb. Katzenbach: Well we've had problems with -- in the lawsuits that we've brought with respect to voucher difficulties and with respect to the good moral character where it's been differently administered with respect to --
William J. Brennan, Jr.: Or present -- do you -- you have examiners in Mississippi?
Nicholas Deb. Katzenbach: Yes sir.
William J. Brennan, Jr.: And as I understand it Mississippi appealed its good moral character perhaps.
Nicholas Deb. Katzenbach: Yes.
William J. Brennan, Jr.: But was it -- that requirement in part which moved you to move in.
Nicholas Deb. Katzenbach: Well, the reason for examiners and -- being appointed into Mississippi has been the fact that Mississippi does not interpret the federal law as abolishing all forms of literacy test and they require a filling out of a simple application in some counties and I've felt under the Act that -- where that was required I was obligated to -- where illiterates were being turned down that I was obligated to appoint a federal examiner.
William J. Brennan, Jr.: So that's a requirement of good moral character.
Nicholas Deb. Katzenbach: All of -- in Mississippi --
William J. Brennan, Jr.: You didn't really --
Nicholas Deb. Katzenbach: -- no, Mississippi did it after they've passed the Voting Rights Act by constitutional amendment, Mississippi greatly simplified its prior laws on this subject and reduced them down to fairly normal kind of a literacy test as far as the other states are concerned. It's a very, very simple test.
Potter Stewart: Do I understand that beginning for a moment the constitutional questions it's just a matter of information as to how this law works that it's provisions require that in these states which have been certified to meet these -- in which these triggers have an impact, hereafter, the state registrars are required to register people who are illiterate and who are of bad moral character that is they're not required to prove that the applicant is either illiterate or of good moral character and thereafter there can't be any challenge on the -- on the basis that they -- on either one of those criteria.
Nicholas Deb. Katzenbach: Those laws are suspended under this Act. Other state laws continue for example, laws which prohibit felons from voting or not touched by the statute.
Potter Stewart: But under this Act there is a requirement upon the state officials so long as he's in charge or upon your federal registrar if you proceed under Section 6 of the Act and send federal people in there, there is a requirement that they register applicants who are illiterate and are of bad moral character, is that right?
Nicholas Deb. Katzenbach: They are required to -- they cannot apply Mr. Justice Stewart any law with respect to literacy because this Act --
Potter Stewart: Or good moral character.
Nicholas Deb. Katzenbach: Or any law not objective kind of law with respect to good moral character.
Potter Stewart: How about an objective law? It doesn't say any about a non-objective law.
Nicholas Deb. Katzenbach: No, they -- there's nothing that no objection to the prior convictions and they can refuse to do that. The point that I wanted to make is that state law -- some state laws are suspended, the ones described here in Section 4 (a). They would continue to register under those state laws that were not suspended. Federal examiner within the area would continue to apply those state laws not suspended by Section 4 (a).
Potter Stewart: I was really getting -- I think we understand each other and then there cannot be under any subsequent challenge on the basis either of illiteracy or bad moral character objectively applied but without anything, without any requirements like previous conviction of felony.
Nicholas Deb. Katzenbach: It's pretty hard Mr. Justice to make a judgment about good moral character unless you have something like criminal conviction.
Potter Stewart: Well that may or may not be but that's a different subject. I just want to be sure that there -- there cannot be any subsequent challenge on --
Nicholas Deb. Katzenbach: That's correct --
Potter Stewart: -- either one of those statements.
Nicholas Deb. Katzenbach: As long as that state is within the accomplice of the Act.
Potter Stewart: What is the -- what is the provision for the challenge? What's the -- what's the challenge then all about, the challenge authority you found in the statute --
Nicholas Deb. Katzenbach: MWell, the challenge --
Potter Stewart: -- the 10 days within which to challenge.
Nicholas Deb. Katzenbach: -- the challenge authority is there -- the person is really a resident of the area if he's convicted of felony if he's --
Potter Stewart: If he doesn't made other --
Nicholas Deb. Katzenbach: Other, yes.
Potter Stewart: -- valid state requirements which haven't been suspended by this legislation.
Nicholas Deb. Katzenbach: Yes, that is correct. Yes sir.
Hugo L. Black: MDoes that Section 2 have any effect on this bill except the statement of policy?
Nicholas Deb. Katzenbach: No, I don't think so Mr. Justice. I don't think Section 2 has any --
Hugo L. Black: And no sanctions can be applied under it, are there?
Nicholas Deb. Katzenbach: No, it's just a general statement of the really -- which required already by the --
Hugo L. Black: Constitution.
Nicholas Deb. Katzenbach: -- by the constitution, yes sir. Now -- but it doesn't have any operative effect that you would not have I would say by the Section 1 of the Fifteenth Amendment save insofar as the Attorney General authorized from -- to bring a suit or for it's enforcement.
Hugo L. Black: There's no provision in the Act which makes an offense or attempts to make it an offense but first in administering the law that apply one of these what you call devices --
Nicholas Deb. Katzenbach: No --
Hugo L. Black: -- totally on account in order to discriminate on account of felony.
Nicholas Deb. Katzenbach: No, unless to the extent that would come under the -- the provisions of Section 12 because there is an explicit reference to Section 2 there, “whoever shall deprive or attempt to deprive any person with any rights secured by Section 2 and other sections shall violate Section 11 (a) or (b) should be fined and so forth.”
Hugo L. Black: Well that --
Nicholas Deb. Katzenbach: “Or whoever conspires to violate the provisions.”
Hugo L. Black: Why would that not apply to an election officer who deliberately applies, used the test to discriminate on the account of color?
Nicholas Deb. Katzenbach: The --
Hugo L. Black: Why wouldn't that be an offense?
Nicholas Deb. Katzenbach: If we were using it with a requisite criminal intent, I think that it could be under Section 12.
Hugo L. Black: But if he was using it to deprive him of his vote on account of color.
Nicholas Deb. Katzenbach: If he is using it to deprive him of his vote on account of color, I think that it would be Mr. Justice Black.
Hugo L. Black: Well, that's a pretty effective section itself is it not? It can be.
Nicholas Deb. Katzenbach: It can be. It doesn't have accomplished the purpose of getting people --
Hugo L. Black: Yes, I --
Nicholas Deb. Katzenbach: -- entitled to register and vote.
Hugo L. Black: Yes, I understand the difference, yes. I was just asking about it.
Nicholas Deb. Katzenbach: Yes.
Hugo L. Black: Since we're considering a bill.
Nicholas Deb. Katzenbach: Yes. Well then those provisions are quite broadly drawn --
Hugo L. Black: As I understood you, there's been no objection raised in the Section except 4 and 5.
Nicholas Deb. Katzenbach: I believe yesterday, Mr. Robinson raised the objection with respect to Sections 11 and 12, but didn't discuss it at that time. I would suggest to the Court that as far as those sections are concerned, I don't think the facts of their actual application are presently before the Court as far as the criminal sanctions are concerned and I would think that the focus of attention should be as it has been in the argument on the sections that are presently operative and that are in dispute which are Sections 4 (a) and 5 and other sections relating to the appointment of the examiners and so forth. Section 11 and Section 12 whatever their constitutionality, I believe must be constitutional. It might await another time where the facts of a particular prosecution were here and the Court would consider those sections in the light of facts of an actual case.
Hugo L. Black: I had noticed that they weren't challenged by South Carolina but if they are challenged by South Carolina, is it your idea that we would not be called on to pass on?
Nicholas Deb. Katzenbach: I don't think it's necessary for the Court to pass on this time and I question the desirability of passing on those sections at this particular time.
Potter Stewart: Mr. Attorney General in the -- during the process of consideration of this Act, during its legislative history as we call it, was any consideration given to a simple act that would provide that whenever the attorney general found that literacy test or others of these devices were being unfairly administered, he could send in federal registrars to act and to fairly administer the acts --
Nicholas Deb. Katzenbach: Yes.
Potter Stewart: -- state law.
Nicholas Deb. Katzenbach: Yes, there was at least one bill before Congress that considered that as a --
Potter Stewart: An alternative.
Nicholas Deb. Katzenbach: -- alternative to this. There were a number of alternatives to this that were considered in Congress and this is the alternative that Congress in its wisdom selected. I think from a constitutional point of view it's my job to --
Potter Stewart: Uphold this one --
Nicholas Deb. Katzenbach: -- uphold this and appropriate legislation and not to second guess the Congress of the United States as to whether there was or was not a better way of accomplishing the objective which Congress sought to accomplish. The fact that most of these tests and devices are non-discriminatory on their face or the fact that most of these could be administered fairly its between the raises, I don't think it's controlling. The Courts held that discrimination and violation of the Fifteenth Amendment is outlawed whether it's accomplished by it's procedural or substantive means, whether it's sophisticated or simple minded and as this Court explicitly noted in Lassiter, a literacy test fair on its face maybe employed to perpetuate the discrimination which the Fifteenth Amendment was designed to uproot. And let me make a point here which one made repeatedly before Congress and it's a very important point in the administration of these laws. It would be wrong to think of these laws as simply being unfairly applied to Negroes and regard the problem as one of securing their fair application to members of the Negro race. Because the other side of that coin is equally important that they haven't been applied at all or that they have been applied at less than the statute would require as far as White citizens are concerned and this was very much in Congress' mind when they were there, so that there is no cure by saying from now on let's make sure that the tests are fairly applied to Negroes because you have a problem of the easy use of these problems testified to in case after case after case has been litigated where it means whites gone on the rolls and did the -- as the Attorney General of Louisiana said yesterday, there's before the enactment of this Act there were 35,000 illiterates on the rolls in Louisiana and while there's a great deal had been made about all the wisdom of an intelligent electorate in the use of the literacy test even in South Carolina's argument. I notice that South Carolina by her own Constitution says either you have to be literate or you have own a second hand car in order to vote because it has a $300 exemption you can get out of being literate, you're wise enough to vote if you get $300 of personal property.
Potter Stewart: You're not -- you're not attacking the constitutionality of that, aren't you as such?
Nicholas Deb. Katzenbach: No, but I'm pointing out that each of these states, each of these states, there are many illiterates on the roll. Now, this Court is heard a great deal about literacy and the value of literacy. The fact is that even under their own statutes there are great many illiterates registered. Even under their own statutes there are a great many illiterate Whites who presumably under even handed administration should not have been registered and I'm saying that it's being cured with this problem with the suspension of these tests. But the Congress took that into account and said in terms of getting rid of violations of the Fifteenth Amendment and the effects of test violations of the Fifteenth Amendment, this is an appropriate way to do it.
Potter Stewart: You're not suggesting it's the only way though.
Nicholas Deb. Katzenbach: No, and I don't believe that the Constitution requires Congress, no, Mr. Justice Stewart to enact the only --
Potter Stewart: Now are you suggesting it's the best way, I assume because I obviously -- it could be suggested that maybe the best way --
Nicholas Deb. Katzenbach: In another fourm I would do (Voice Overlap)
Potter Stewart: -- to cure or putting illiterates on the -- on the rolls is not to put many more illiterates on the rolls. Another way to do it would have been to declare the whole thing null and void and they have a new registration of everybody by federal registrars of wherever you found that these things had been abused.
Nicholas Deb. Katzenbach: It would have been possible to have done it in that way and to have a completely registration of everyone who was (Voice Overlap) by federal state law. I can understand that -- why Congress would reject that as being a much more harsh in effect than this particular legislation, and certainly in another forum Mr. Justice Stewart, I did defend this as the best legislation.
William O. Douglas: I suppose if the record shows that the literacy tests are engines of discrimination, racial discrimination, the Congress could abolish literacy test?
Nicholas Deb. Katzenbach: I would think so Mr. Justice Douglas. I think in this instance to understand this best, what Congress did was to say “literacy test can be and have been used as engines of discrimination” and therefore, we ought to suspend literacy test. Look at a great deal of other evidence before it and said in order to meet the danger that literacy test can be used as engines of discrimination. It is not necessary, although I think they could have so done, to suspend them in all 21 states or we can be more refined in that. They then looked at the other evidence before them, they looked at the number particularly, the number of people voted in that election that was hotly contested and hotly contested in these areas in 1964 and felt that some inference could be drawn from the fact that these states were way below the national average I their voting turnout. Now, it can be said that -- it's been said that there's no relationship between voting and registration because it's an obvious relationship. You can't vote if you aren't registered and the fewer the people register, the fewer the people are eligible to vote and one would except some drop in the voting figures from that alone. Not satisfied with this alone, Congress examined who would be covered by this trigger and what did they find when they examined it? What they found was that in these states that six of the seven states covered had a history of racial discrimination coming into the recent test with respect to other matters other than voting. Four of them, there had been judicial findings with respect to patterns and practice of discrimination in voting. They had a non-White population as I've emphasized more than 20% in five of these six states. They also looked at the registration figures and if they look at the registration figures they found registration for Whites was in all states twice what it was for Negroes and in at least one state more than 10 times what it was for Negroes. The Congress had all of this in front.
Potter Stewart: I suppose it had the literacy rights in these states in front of it too.
Nicholas Deb. Katzenbach: Yes, and it have a literacy rate of these states in front of it and as you raise the question, Mr. Justice Stewart, I like to make two points --
Potter Stewart: I think its irrelevant (Voice Overlap) because obviously if there were 50% literacy rate the fairest application in the world could produce more than 50% of registered voters.
Nicholas Deb. Katzenbach: That's correct and the suggestion that South Carolina makes is there's 20% of their population illiterate and that's true as far as the functional illiteracy, as far as the Census Bureau is concerned, there are 20%, but that means not having achieved fifth grade education and now the literature does not equate with the literacy test in South Carolina nor does it equate with the $300 left hand exemption in South Carolina. Furthermore than that, although South Carolina did not emphasize it in its brief, the same figures show that after some 70 years of constitutional mandate to give at least equal education to Negroes within the state then on those -- with those literacy rates as they say it's approximately 11% of the White population and 44% of the Negro population and in fact the median education in South Carolina, the median rate of education was twice and it's about 10.2 years of school which is just about the national average of 10.4 median education for Negroes is 5.4 less than six years.
Potter Stewart: The highest literacy -- illiteracy rate of anyone of these states affected that.
Nicholas Deb. Katzenbach: I think the highest is in Louisiana. I don't have the figure at the moment and it's significant because 23% --
Potter Stewart: 23%.
Nicholas Deb. Katzenbach: -- in Louisiana, I guess Louisiana had actually a higher registration figures in many of these other states involved.
Potter Stewart: The 23% of the people of voting age I suppose the illiteracy is a little higher among older people than in the younger people.
Nicholas Deb. Katzenbach: Yes, they must be very young.
Potter Stewart: Yes, but that's 23% of the total population?
Nicholas Deb. Katzenbach: Yes, but again I would caution that you're using a definite --
Potter Stewart: The test maybe from the --
Nicholas Deb. Katzenbach: -- the test there from the --
Potter Stewart: -- statutory test.
Nicholas Deb. Katzenbach: -- might be statutory.
Potter Stewart: -- from the statutory test.
Nicholas Deb. Katzenbach: Because if to say South Carolina for example were to enact a six-year educational requirement, it would immediately eliminate half of the Negroes in South Carolina, but it would eliminate very few, if any, of the Whites and I raise the point because I would at least raise the issue as to whether the state's failure to give equal educational opportunity in the past and over the past 70 years whether that can be used now in order to disenfranchise large numbers of their own citizens on the basis that they have not achieved a certain achievement of literacy when that falls unequally upon the races and when the fact that that falls unequally upon the races, can be put today as it could not have been put back at the time of the Fifteenth Amendment. It can be put today squarely on the statute of the state involved because it's been under an obligation to avoid that inequality for over 70 years.
Potter Stewart: Now, that question is not --
Nicholas Deb. Katzenbach: The question is not before (Voice Overlap). It's not before the Court at this point, no sir.
Potter Stewart: Now, that question would be if you had a fairly administrative literate -- literacy test and a vast proportion of the illiterate were Negro people and the reason they were illiterate people was because the State had denied on the equal facilities with education. That would be quite a different lawsuit and quite a different question than the one we had here, isn't it?
Nicholas Deb. Katzenbach: That would be.
Speaker: You could run through the legislative history [Inaudible] that their version of it is correct, the question that my Brother Stewart is putting to you, I should think would be right in front that legislative history of the --
Nicholas Deb. Katzenbach: Well, I intend to go into that legislative history in some detail, but I would suggest it differently Mr. Justice Harlan. I was premising my point on the fact that they had an obligation for schooling which was not an obligation that they had in -- when the Fifteenth Amendment was passed in 1867, but it is an obligation which they've had since before the turn of the century.
William J. Brennan, Jr.: Well, is that [Inaudible]
Nicholas Deb. Katzenbach: I don't think it's -- I don't think it's necessary for that. It was discussed that -- it was --
William J. Brennan, Jr.: [Inaudible]
Nicholas Deb. Katzenbach: It was discussed in the legislative history.
William J. Brennan, Jr.: [Inaudible]
Nicholas Deb. Katzenbach: It was one of the considerations which Congress obviously had on it's mind and I raise it for that reason, but this legislation is not based on the -- it's based on the Fifteenth Amendment and it was suggested by several that if it hit somewhat unequally as far as literacy was concerned that prior violations of the Fourteenth Amendment shouldn't now frustrate Congress in enacting under the Fifteenth Amendment. I don't think it's necessary to come to in this case. Now the common thread and the point that I want to give the most emphasis to is the actual abuse of these tests and devices and their inherent possibility of abuse and the fact that Congress had before it great evidence, many of these areas although not all of them that in fact it had been abused. In addition, the Congress had before it evidence that many of these tests and devices had their frank and candid inception with respect to a desire to discriminate against Negroes. They had been designed for that explicit purpose while in some states this went back many years, in other states for example in Louisiana record this Court is familiar with that same purpose was being stated by legislators in the 1960s. We have brought over some 70 cases involving tests and devices of this kind. 32 of which have come to final judgment and in all 32 a pattern of discrimination was found and we've been upheld either by the District Court or the Court of Appeals. And this Court is familiar with the problem, Schnell against Davis, United States against Thomas, and Alabama against United States, Louisiana against United States, United States against Mississippi, all cases before this Court have been testing the fact that the sorts of tests and devices outlaw suspended in statute before us have been grossly abused in their administration. And the same facts have been found by others presented to Congress. I could quote as we do in our brief from Professor Keith who says flatly that the Southern literacy test was a fraud and nothing more and there were testimony before Congress that frequently that the test was applied to Negroes only, they're not fairly not applied to Whites at all. We go in at some length to the history of discrimination. The history of purpose, the fact is that you had a history that's been before this Court time and time again. You start it with your older clauses, your fighting Grandfather Clauses, that kind of thing in order to keep Negroes from the franchise. You went from there into such things as the -- the White primer, those issues came before this Court. The Congress acted in an attempt to deal with this problem in 1957, 1960, and 1964. The point is that here is the Fifteenth Amendment on the books for 95 years and a long history of devices which opened up the opportunities to bad motivated registrars to abuse them back in many instances where the legislation history indicates that. Indeed, if you look to the good moral character test, they were used primarily as an exemption for many literacy requirement saying well, if the person wasn't literate but the registrar found him to be of good moral character, he could register anytime. An application that was made to White citizens much frequently than it was to Negro citizens and still another form of exemption clearly had a racial purpose in it's origin was the $300 property qualification which is in the South Carolina statute a qualification which to say the very least that there's literal relationship to the kind of issues discussed as to the need for literate voters but there's a significant relationship to race in the state such as South Carolina where the incidence of poverty is so much greater among the Negroes than it is among the Whites. Indeed, the same kind of literacy test prescribed by South Carolina was reviewed by this Court, United States against Alabama and this Court affirmed a judgment that such a test had been used as an engine of discrimination. Now, the District Court with that opinion vividly described how the Alabama test which is identical with this had been manipulated thus demonstrating at least the potential in the statute that it could be used as they had in fact been used in Alabama as an engine for discrimination. And indeed, the Congress had before it an existing fact, the Court decisions which have demonstrated the fact that these tests and devices were not given to Whites at all in Clarke, Forrest, Georgia, Panola, Sunflower, Tallahatchie, and Walthall counties in Mississippi and Macon, Sumter counties in Alabama, Jackson, Plaquemines Parish in Louisiana and others. And so there was some justification for the Senate in concluding as it did in its report when it said and I quote “in suspending the use of tests and devices, Congress would be applying to Negroes the ‘law' applied to Whites”, and the word law there is ending in a quote. Was that record first which was before Congress? Secondly, the Congress had before it failure prior records to obtain compliance with the Fifteenth Amendment to a recourse to judicial relief found that those are proved genetically. Now, our constitutional system rests on the proposition that when a valid law is enacted and when the constitution is amended or already exists, the state and local officials in good faith comply with federal law in supremacy with the provisions of the Constitution which they've taken oath -- taken an oath to uphold, but unfortunately in matters of high emotional content such as race relations, this hasn't always been the case. And so, a remedy that says and in fact in our federal system sometimes rarely a person will not act as he's meant to act, an officer of the law or state official, such an instance you can go to Court and that works as long as those are exceptional circumstances and as long as its good faith compliance and it simply hasn't work in the voting field. Beyond that, Fifteenth Amendment doesn't speak just to the federal government. The Fifteenth Amendment speaks to the states. It imposes obligations directly upon them to secure compliance with the Fifteenth Amendment. There's been no such record in many states and indeed the contrary is too often been the case. We have found in many of our lawsuits not that the state was in there and anxious to cure a situation clearly in violation of the Fifteenth Amendment but it was in there making motions and defending on narrow and technical grounds what had been going on and making no effort to cure it. And I think that a great deal of burden was best put upon the judiciary and upon the lower courts and upon this Court. The Congress sought for the first time and I think it waited too long a period of time to enforce the Fifteenth Amendment that the 1957 Voting Rights Act would authorize the United States to bring suit wherever persons had been deprived, not at least equalizing to a certain extent the burden had been put on a private plaintiff who have the faith to secure his right to vote or to have it vindicated and then actually, it was always dependent to the taxpayers' expense that brought the United States in to this. And we found quickly Congress did the violations of the Fifteenth Amendment were too widespread to make that relief adequate and the Act was amended in 1960 so as to permit the courts to deal with violations which went beyond individuals. That is to say to put in the provisions for federal registration where a pattern of practice was found to exist into a point where we believe to register eligible voters whenever the government was able to demonstrate that pattern of practice. It also provided absolute right on the part of the federal government to examine voting records despite the fact that this remedy was in many respects unique, despite vigorous efforts by the Department of Justice that again can only be concluded to be a failure. The record before Congress complete with testimony and concrete individuals of resistance to its enforcement. Even such relatively clear rights is that to examine voter records were resisted by state and local officials who insisted upon making every motion and every argument possible under the law and I recall in one case we took over four years simply to secure the voter records. And Mississippi, the State of Mississippi two weeks before the enactment of the 1960 Act repealed its state law which made the destruction of voter records unlawful so that registrars would be free to destroy records. Furthermore, the problems the counsel this morning conceded of proving a pattern or practice are formidable problems. Again those were illustrated by a testimony before Congress, thousands upon thousands of man-hours spent in the examination of records alone, 10,000 man-hours, 12,000 man-hours simply to examine voting records to see a pattern or practice of discrimination can be found from those records because it's extremely difficult to get the testimony of citizens. One can get the testimony often of Negro citizens deprived. It's extremely difficult to get the testimony of White citizens who haven't taken a literacy test or who had been helped by the registrar. Occasionally, this comes out, one can see it in the records, case of occupation forms in one area. We did note a coincidence of some 11,000 forms -- 1100 forms that's made out with the same handwriting, all White, so that each case was vigorously fought and enforced at every level through the courts and the average time in securing relief and relief which often wasn't adequate relief exceeded two years not including the year or so that was necessary to determine whether or not you had the facts on which to base a complaint. I don't quarrel with the resort to the judicial process, but the point before Congress was whether or not delays taken in this way whether or not taken in good faith, the result was delay and delay and delay and delay in securing this right and Congress was very conscious of that realizing that every election that went by where a person was wrongfully given the right to vote -- denied the right to vote was irretrievable. While I've heard discussion of distinguished counsel on the other side about the delusion of the vote of literates and those who have $300 with people who can't meet that, let me suggest to this Court that there's another delusion in here because every single person who was wrongfully denied his right to vote under the Fifteenth Amendment dilutes the vote of every single other person who would have voted in the same way. The argument cuts in two ways with respect to that. So it was the conclusion of Congress that county by county, parish by parish lawsuit was simply inadequate to deal with this problem. And after statewide action in this Court is familiar with them were inadequate for the same reason. State legislature was acting to frustrate the will of Congress enacted two tests and devices in Mississippi, in Louisiana had elsewhere and that bears upon the reason for Section 5 in this legislation and attempts to set aside these efforts were meant with procedural points which require the United States to come to this Court for resolution. In the case of United States against Mississippi, a process involving 36 months from the filing of the complaint without even hearing on the merits. The Congress said before it and the facts to test almost countless illustrations of frustrations, delay and the adequacy of the remedy under existing law to deal with these hardcore areas. The most dramatic example because of the circumstances surrounding the 1965 Act was the litigation in Dallas County which was testified to at length by the Attorney General and it appears in the Senate hearings at page 10 and 12 and it gives any capsule kinds of frustrations in vindicating of right which we were faced with, but that's not a unique example. Somehow Alabama was not a unique example. The plain fact was that adequate remedies simply could not be achieved by the process of lawsuit within any reasonable period of time in the foreseeable future. So the sort of delay that was illustrated by experience under the 1957 and 1960 Acts made it clear to Congress that some more effective system of enforcing the Fifteenth Amendment was required. So it was faced with a problem of devising legislation which recognized both the importance of achieving the right to vote and of enumerating the grievances and the loss of confidence in the political institutions of the United States and especially in the judicial process. Congress went and enacted this legislation not enacting it because of my distinguished colleagues suggest because of pressure. Congress had before it in 1965 a crisis situation in the sense of a simply a loss of confidence in the political institutions of this country to deal with that problem, to deal with enforcement of the Fifteenth Amendment. And it was for that reason and it's that reason why it was so important that Congress had enacted this piece of legislation that could secure for it compliance now before the disillusionment with the whole process of democratic government and the supremacy of the rule of laws set in. And so as those three facts, public sentiment not only among Negroes, but among others, among all citizens outraged at incapacity to deal with this problem against that factual record of the use and abuse of these tests. And the whole nation looked to Congress to find the workable solution, a solution which would both establish the integrity and viability of the Fifteenth Amendment and even more importantly as I suggested the integrity of the viability of our basic democratic political institution.
Earl Warren: We'll recess now. [Recess] Mr. Attorney General you may continue your argument.
Nicholas Deb. Katzenbach: Thank you Mr. Chief Justice. I attempted this morning to describe the situation that Congress faced it and so on and faced with those three elements, literacy test, record of the abuse of literacy test, massive scale in some areas and with the need for finding an effective and efficient solution which the Congress had failed to find prior legislation as to the process of litigation that crafted this legislation. And I think it's worth the point of emphasis that in doing so -- well, as I said in answer to a question by Mr. Justice Fortas while the Act covers discrimination in voting anywhere this was a particular problem which it focused upon in view of the record in front of it in the history of past abuses. And in that sense, as it treated literacy test differently or at least by a different method of enforcement. And so it determined to have provided for the suspension of tests or devices coupled with a potential appointment of federal examiners in those places where in the judgment of Congress, the danger of racial discrimination in voting rights was greatest. Faced with the need for immediate and effective action, it provided for the initial use of semi-automatic objective criteria, so-called triggers, which incorporated the information immediately available to Congress to determine where those tests had in fact been abused indicated by prior litigation and decisions of courts or where in the judgment of Congress the danger of the abuse was greatest. Congress recognized as I said earlier that given more time, a refined judicial inquiry could lead to different conclusions. Therefore, it preserved the power of the Attorney General to sue for injunctive relief under prior voting acts and in fact strengthened that power somewhat in Section 3 and for areas outside the so-called trigger that it authorized any state within the standards to sue for the purpose of demonstrating that in truth and in fact tests and devices were not being and had not in the immediate past been used as engines of discrimination. Thus, the triggers govern only for a relatively short period of time in which the goal of compliance for the Fifteenth Amendment without delay, required action simply on the basis of the best available information pending a full investigation, pending a full hearing on the actualities of your use for discrimination. After that, judicial decision replaces the triggers. Now there would seem to be only two possible objections to this approach. The first is that Congress has no broad authority to enact legislation under Section 2 of the Fifteenth Amendment to deal with the substantive evil, but that that section can be used only to provide procedural remedies, including criminal sanctions. And the second would be that the machinery established by the Voting Rights Act of 1965 lacks any reasonable relationship to its objective and in that sense is not appropriate legislation.
Potter Stewart: Is the third objection that its at least had been voiced by your brothers on the other side and that is that Section 2 of the Fifteenth Amendment doesn't allow Congress to overwrite other constitutional provisions and if there are such other constitutional provisions which rely on the -- as obstacles to this particular legislation.
Nicholas Deb. Katzenbach: Well, it's our view and I had thought to include that in my first objection when I -- when I stated that it can only do procedural matters rather than substantive but it is our view that Congress under this express power contained in Section 2 of the Fifteenth Amendment has the same power that it has in any other express powers that it has throughout the Constitution and that it can enact legislation to achieve the mandate of Section 1 for the only limitation being that it -- that legislation has to be appropriate to the achievement of that end and I would take that to be the same as any other power that's given to Congress and I think --
Potter Stewart: Well, you're not suggesting are you Mr. Attorney General that Congress could say override the privilege against self-incrimination just for example under Section 2 of the Fifteenth Amendment?
Nicholas Deb. Katzenbach: No, I don't --
Potter Stewart: Even though that might be quite appropriate in the enforcement of the Fifteenth Amendment.
Nicholas Deb. Katzenbach: No, I don't suggest that it can take away rights which you're explicitly guaranteed particularly in the area of individual rights, but surely and all the history indicates with respect to the Fifteenth Amendment as well as the decisions of this Court, it can prohibit state laws, state actions, which are in violation or can be used in violation or are being used in violation of the Fifteenth Amendment. And I think it's -- you know it's really an exaggeration to talk about the Congress providing specifically that the qualifications are to be decided by the states as though that were similar to your Fifth Amendment point. What the Congress --
Potter Stewart: The Fourteenth Amendment point.
Nicholas Deb. Katzenbach: What?
Potter Stewart: For the Fourteenth Amendment.
Nicholas Deb. Katzenbach: The -- what the Constitution says there and I think it's really to determine the voting in federal elections and your constitutional history as you recall, there was considerable fear rather ironic fear today that the federal government would impose two rigid restrictions on the franchise and it would not be sufficiently democratic and for that reason that it was determined that the qualification would be those of the lowest house under the state government. But it's merely a method of describing the -- who is permitted to vote in federal elections and simply assumes as indeed all other parts of the Constitution assume that the -- that the power is not given expressly to the federal government or reserved for the states and I think it is no different situation than any other rights reserved to the state. Now, it's our view --
Hugo L. Black: Are you depending on the fact that the first clause was adopted in 1788 that is a general clause relating to the right to voting in the state [Inaudible] it's a specific expressed provision designed to enter -- to cut off anything that didn't appeared with it in the past.
Nicholas Deb. Katzenbach: Yes sir, I would. I would think that it gained and this Court has said so that an express power given to Congress to deal with the problem of discrimination in voting and that it says that Congress can deal with that by appropriate legislation. And I think under that section Mr. Justice Black Congress has the power not merely to guard against past violations but to guard against the possibility of future violations wherever that's a reasonable judgment and assessment to make, to eliminate tempting opportunities which have in fact on the basis of experience whether it's in that state or another state, it's been widely abused. It seems to me that the interpretation given by Section 2 of -- by the plaintiffs in this action is contrary to the interpretation of this Court to other similar express powers contrary to the history of the Fourteenth and Fifteenth Amendments and contrary to judicial precedent in this Court with respect to the Fifteenth Amendment. Now, a general principle constitutional law is that the breathe for legislative discretion is still as it was and as expressed by Chief Justice Marshall in McCulloch against Maryland that they can be legitimate let it be within the scope of the Constitution and all means which are appropriate which are plainly to that end and which are not prohibited that it consists through letter and spirit of the Constitution are constitutional that this rule is equally applicable to the amendments of the Constitution, that's certainly demonstrated by Everard's Breweries against Day where this Court stated that the Congress is not limited to such measures as are indispensably necessary to give effect to it's express power. The history of the adoption both the Fourteenth and Fifteenth Amendments supports in our judgment the view that the enforcement section was intended to be treated in exactly the same way as other affirmative powers of the federal government. That is to say appropriate legislation was legislation which was necessary and proper to carry out Section 1 of the Fifteenth Amendment. That was recognized by this Court in ex parte Virginia where speaking of the -- all the post war, Civil War Amendments, this Court said, whatever legislation is appropriate that is adopted to carry out the objects the amendments have in view, whatever it tends to enforce submission to the prohibitions they contain and to secure all persons the enjoyment perfect equality of civil rights and equal protection of the law against state denial or invasions if not prohibits it is brought within the domain of congressional power. In that same decision, this Court pointed out explicitly that the Thirteenth and Fourteenth Amendments derived much of their force from their enforcement provisions which enlarge the power of Congress to achieve the -- end sought by the prohibitions themselves of the first section.
Speaker: Those generalizations are of course submitted [Inaudible] Section 1 that not withstanding potential risk for discrimination in the states for free really depends. That's their argument and then therefore when you talk about appropriate you have to deal with appropriate in terms of what the passage of that evidence, the debates which is subsequently [Inaudible]
Nicholas Deb. Katzenbach: That's absolutely true Mr. Justice Harlan and there are the differences which you assumed in your question --
Speaker: [Inaudible]
Nicholas Deb. Katzenbach: Well, we don't contend that immediately upon the passage of the amendment in 1870, before the states here affected had adopted any tests and devices the Congress could then at that point have banned their use and banned it for all time. There were those who foresaw the future at that time and thought that the test ought to be banned by Section 1 itself to put into the Constitution and banned in that way and their view didn't prevail and the great bulk of the debates is to whether or not the Congress should in Section 1 banned off such devices because they realized even then that these would be capable of discriminatory application. But I don't think that it follows and I don't think that there's anything in the debates that indicated that Section 2 therefore left the Congress powerless to deal with those tests. If it hasn't happened in fact, they later were in fact used as engines of discrimination and in fact, the natural inference from Section 2 and its inclusion is that it was put in to permit later Congresses to deal effectively with whatever problems arose with respect to the implementation and enforcement of Section 1. That was its function.
Speaker: [Inaudible] in connection with the section.
Nicholas Deb. Katzenbach: There was relatively little on Section 2 and it's -- but it's not accurate to say that those who wrote Section 2 thought Congress could never reach voting qualifications. For example, I have a quotation here from Senator Howard and he said this “Suppose that after the reorganization of the government in the State of South Carolina for example, the voters in the state shall see fit to divest the colored man there of his right to vote” and I assume that he means or at least includes the legislature of South Carolina in that. He then continues “The only mode in which the right to vote could be restored to the colored man in that state would be under the subsequent clause in this Amendment giving Congress -- giving to Congress the power to carry out and effectuate this clause by appropriate legislation so that Congress would then if it saw it fit step in and remedy the defect of the state law and restore to the colored man his right to vote. This might be the case in more than one state of this union. It might indeed be the case in all states of the union and Congress would be called upon to exercise an authority under the second clause of this amendment and to impart by direct congressional legislation to the colored man his right to vote. No one can dispute this.”
Speaker: Is that cited in your brief?
Nicholas Deb. Katzenbach: This quotation does not appear in --
Speaker: Where was it?
Nicholas Deb. Katzenbach: -- in our -- in our brief?
Speaker: [Inaudible] Senator, who was it?
Nicholas Deb. Katzenbach: Senator Howard.
Speaker: What relationship he had –
Nicholas Deb. Katzenbach: He was a proponent of the -- of the amendment that appears in the -- in the congressional globe 48th Congress 3rd session at page 1625 and there are a number of other quotations to it, somewhat similar view when dealing with Section 2. I think its important Mr. Justice Harlan that remember that Senator Howard was one of those who preferred a broader first section, but he explains his reason. There wasn't any doubt about the power of Congress to deal with engines of discrimination under Section 2 in the future. And what it was rather and it comes out clearly in debates are theory that Congress when it became less republican might fail to exercise the powers that were granted to it under Section 2 and the proponents of the more radical view wanted to freeze that into the Constitution at that time. Their fear was not a constitutional fear, their fear was simply that that if it were not done future Congresses would not take full advantage of Section 2, and indeed I might say history bears them out to a considerable extent because there has been precious little with respect to Section 2 of the Fifteenth Amendment despite it's widespread noncompliance and violation over the years to first small steps in 1957 and then followed by this legislation in 1965. So I would think the enforcement power here was just as broad as it was elsewhere. And indeed as Mr. Justice Black suggests it maybe broader under the Fifteenth Amendment than under the Fourteenth Amendment. But let me emphasize that the Voting Rights Act doesn't attempt to stretch it beyond quite familiar boundaries and this legislation while broader in scope, does nothing different in time and what this Court has repeatedly approved when ordered by a court of equity. Davis against Schnell was determined at Alabama as understanding the test. It violated the Fourteenth and Fifteenth Amendments because the Registration Board was given arbitrary power to accept or reject electorate. Further use of that test was enjoined. In Louisiana against The United States, this Court affirmed the judgment for the United States which found that the Louisiana interpretation test on its face and as applied was part of an unconstitutional plan to deprive Negroes of its vote -- of their right to vote. And this Court at that time stated and it's one of the basis for this piece of legislation that the lower court had the power and duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future and it approved the decree entered by the District Court which enjoined the future use of the Louisiana interpretation test, and also enjoined in 21 parishes of adoption of the new citizenship test which had been passed for a previous use of the interpretation test that greatly reduced the proportion of Negroes registered to vote at least until such time that there would be a complete re-registration. And our proposition that is simply stated is that such power exists in the federal judiciary to enforce the mandate of the Fifteenth Amendment. It likewise exists in the Congress under the specific authority of Section 2. In fact, Congress does not only like that even a broader power and that's clear from a number of decisions of this Court. It has established principle of constitutional law; we believe that Congress may exercise its expressed powers to deal potential evils at least where the restriction is reasonably related to the danger to be met. This Court expressly said in North American against SEC, the evils disclose themselves which entitled Congress to legislate as it did. The Congress has the power to legislate generally unlimited by the proof of existence of the evils in each particular situation. Now clearly, Congress didn't lack the problem or the power to meet the problem as it did and I think the other question would be whether or not that formula which we've discussed is reasonable. And to a certain extent, I've already discussed this in response to questions I like -- just briefly to review why we think the test itself is reasonable. Again, I would put emphasis. The problem the Congress was facing was the abuse of literacy test as a particular part of a larger problem of discrimination in voting. Its attention was focused upon that abuse and it therefore directed its attention in the first instance to those states which maintain test or devices of this kind. It's concentrated upon those 21 states and from the facts as they exist as they were presented to Congress, the mere presence of such laws gives light to the inference that they could be used as engines of discrimination. But Congress didn't rest on that inference alone. It sought by other criteria to refine its judgment and one such test clearly is how many people are participating in the political process and it took as a criteria for that participation in a hotly contested election particularly hotly contested election in the states involved here and concluded that where the number of people going out to vote was significantly less than the national average, 50% as against some 62% on the national average and if you eliminate these states or you contrast them, it's about an average of 43 as against an average of about 66%. It's a big gap. That one inference that could be drawn would be that qualified citizens were being denied the right to vote.
Potter Stewart: I have a little trouble right there. It was a double test as we both know that 50% of -- under 50% of those registered on November 1st or under the 50% of those who voted on otherwise November 4th. Literacy test has to do only with registration so far as direct impact is concerned, do they not?
Nicholas Deb. Katzenbach: Yes sir.
Potter Stewart: Well, why wouldn't the -- I can understand therefore the relevance and the claimed rationality of the percentage of registration, but I have difficulty with the other alternative. Indeed, I could understand it if only the number who voted were there, but since they're both there, I think it intensifies my problem because only the one seems directly relevant.
Nicholas Deb. Katzenbach: The one -- only one that really is relevant is the voting.
Potter Stewart: Well, I would have thought the other.
Nicholas Deb. Katzenbach: And the reason for that is very simple sir. The reason is, well, I think registration figures would have been better and I think Congress felt the same way, it's more directly related to this problem.
Potter Stewart: It's the only thing --
Nicholas Deb. Katzenbach: The fact is you couldn't get completely accurate registration figures. While you can find in the record, registration figures as derived from various different sources and I would assume that they are in general accurate. They don't have the accuracy and -- of the census determination as to who voted in the presidential election.
Potter Stewart: As to how many voted.
Nicholas Deb. Katzenbach: As to how many voted. So that they went one step -- I think Congress would have taken, I think this is borne out by the record registration if they have had accurate figures on registration. What they wished to avoid was the whole series of lawsuits with respect to the accuracy of registration figures and indeed there was evidence that there is slightly amusing kind that in one state more people voted than appeared on the registration figures and you have that kind of a problem.
Potter Stewart: Its only registration which is -- which is directly affected by literacy test, is it not or do I misunderstand (Voice Overlap)
Nicholas Deb. Katzenbach: I believe that's correct. So it was only registration is directly affected.
Potter Stewart: I just wanted to ask you or I asked that question earlier. In other words once you registered, there cannot be an additional challenge thereafter when you go to voting places, but you're illiterate.
Nicholas Deb. Katzenbach: Well, I think you could be challenged for being improperly registered.
Potter Stewart: Because there's no additional (Voice Overlap)
Nicholas Deb. Katzenbach: -- registration in this kind of challenge could be made, yes.
Potter Stewart: But there's no additional literacy test --
Nicholas Deb. Katzenbach: No additional literacy test.
Potter Stewart: The literacy test goes to your registration, is it not?
Nicholas Deb. Katzenbach: That's correct Mr. Justice Stewart, but the point that I think is more refined and I would concede it, a more refined figure would have been people registered if you hadn't had the difficulty from establishing that figure beyond doubt. So what Congress did in this instance was take a double inference. It's clearly a relationship between registrations in voting. If you're not registered you can't vote. So that if a low number of people is registered, the chances are there will be a lower figure of voting. If you only have 60% of the people registered, it's clear not more than 60% can or only should be able to vote.
Potter Stewart: It doesn't have to work the other way though.
Nicholas Deb. Katzenbach: But it doesn't necessarily work the other way. So they took that figure but they didn't consider that figure in an abstract because they found out that as I indicated of the 21 states that were using literacy states -- tests, six of them were located in areas where generally discrimination against Negroes in various respects that existed historically enough to the present day. Those facts were before Congress and when you asked where there's evidence of discrimination in voting there is certainly evidence in those states at least of the possibility of discrimination in voting if you had problems as Virginia's had and South Carolina has had with respect to schools, with respect to public accommodations, with respect to other matters over the past years.
Tom C. Clark: And thinking the general election system board, did Congress considered the primaries in those states?
Nicholas Deb. Katzenbach: Yes. There was this discussion of the primaries within those states but as you recall Mr. Justice Clark in the 1964 election whatever might have been true of primaries in the past elections, in the 1964 election there was a good hot presidential raise in each of those states. And where it would have been traditionally democratic states and traditionally low turnout for general election, if you look at the figures, you'll find even in the case of South Carolina higher turnout in the general election and this is true of general elections in the past and indeed true of many primaries.
Tom C. Clark: I noticed here in the 1960 [Inaudible]. I don't know if the turnout was 64% while the primaries were only 63%.
Nicholas Deb. Katzenbach: Yes.
Tom C. Clark: So it's been high [Inaudible]
Nicholas Deb. Katzenbach: It would have been higher and this could have been true of other states. The figure of course is taking it as an arbitrary figure for the -- taken for the purpose here of -- of simply setting a trigger which can be lately looked at, I mean, subsequently looked at. You could change the figure, it could have been 48 or 52 or some other figure, they took 50% and they put it together with a good deal of the other evidence that they had. The issue, that mistaken issue to concentrate on whether or not 50% is better than 51% or 52% or any other figure of this kind. The fact of the matter is that 50% in that election was well below the national average. I think if you consider what Congress was using before the Congress was using this for the purpose simply of having an automatic test for initial determination of where these tests were suspended providing for a more refined judicial inquiry so that the state could come in --
William J. Brennan, Jr.: But Mr. Attorney General, I thought you suggested earlier that it's also picked because the result by using it, it could be anticipated in terms of the states.
Nicholas Deb. Katzenbach: Yes.
William J. Brennan, Jr.: And this would apply. There's nothing wrong about that resource.
Nicholas Deb. Katzenbach: No, I don't think there's any -- I mean any kind of --
William J. Brennan, Jr.: That those were the states you are really concerned with.
Nicholas Deb. Katzenbach: Yes, the point -- the point that I was making earlier, I think, Mr. Justice Brennan, was if with all the lawsuits we brought in Mississippi, Alabama and Louisiana, if Congress had adopted this 50% formula then looked at it and found those three states were included within the formula, I think they would have looked for a more rational formula. I see nothing wrong in Congress --
William J. Brennan, Jr.: It might have been increased to 52% or 55% or dropped --
Nicholas Deb. Katzenbach: Or may have taken entirely a different proposition as indeed the Senate had the third clause in there with respect to a large Negro population which is -- which was true. They also examined -- which was true in all of these states when they saw what state it was likely all probability would apply to. All of these -- six of these seven states had -- had a history segregated schools, segregated education other forms of discrimination against the Negroes. They all had a history of -- I'll say all of the -- the six of the seven had a history of White supremacy in voting, the history of attempts to maintain it down through the years.
Tom C. Clark: Well, and I know Mr. Attorney General was this a -- you say that the reason that literacy test might be responsible for this decrease in the voting percentage to the registrations. I wondered if the primary system in a single party state might not have some effect on that.
Nicholas Deb. Katzenbach: That was considered by Congress and I think they -- the Congress came to the conclusion that while indeed that might be true was one of the reasons for the fairness of the years selected Mr. Justice Clark was that it was far less true in this year than in -- than in any other year.
Tom C. Clark: They considered that.
Nicholas Deb. Katzenbach: And they considered that. It was after all merely as an effort to achieve something that was fair, that was applied on an objective basis and I think the inference is hard to say that it's an irrational inference.
Tom C. Clark: But do we have to say or consider it quite certainly and they resolved it by as much to be said. I didn't -- I was asking whether they consider this --
Nicholas Deb. Katzenbach: These questions were raised repeatedly in the discussions in the Congress.
Byron R. White: Do we -- does this case turn on the -- let me put it this way. Do we have to really decide whether the rational connection between a low vote and discrimination by the -- in the application of literacy test --
Nicholas Deb. Katzenbach: No, I don't think --
Byron R. White: -- do we have to decide that -- I mean, so what if there isn't a rational connection? The Congress apparently just took the figures in 1964 and said that this is why at a certain stage and this is the stage that you wanted to apply to. Do we take that or do we really have to say, approach that this is a testing that there may be of some presumption or some evidentiary inference.
Nicholas Deb. Katzenbach: No, I don't think that you have to say that --
Byron R. White: Although this is the way that --
Nicholas Deb. Katzenbach: Congress --
Byron R. White: -- that Congress wrote it up, isn't it?
Nicholas Deb. Katzenbach: The Congress said it this way. It's said it this way with a good deal of other evidence and knowing where this was likely to apply as a device to bring in to operation those provisions pending a judicial hearing and I think that all this Court has to say is that taken as a whole on this that it was appropriate legislation within the meaning of the Fifteenth Amendment and taken as a whole whatever you might feel about this piece of evidence or that piece of evidence or this inference or that inference and taken as a whole, the Congress exercise powers within it's rights, within the broad discretion -- (Voice Overlap)
William J. Brennan, Jr.: Well, excuse me Mr. Attorney General. As I understood you to say earlier that they've expressly named Louisiana, South Carolina, Mississippi, Alabama, etcetera there would be no constitutional problem. That's -- does that sound --
Nicholas Deb. Katzenbach: I believe it is.
William J. Brennan, Jr.: -- there can't be any argument here.
Nicholas Deb. Katzenbach: I would -- I would think not unless the basis for -- as I indicated earlier the basis for naming those states was solely irrational that --
Byron R. White: Well let's assume -- let's assume that Congress had -- that the actual figures that it did one year was an 80% of the people who voted in a primary and 45% voted in the general election, 1964 and Congress said since 50% voted in the general, this infers discrimination in the application of the literacy test and you might have some problems about the rationality in -- 80% voted in the primary and were registered.
Nicholas Deb. Katzenbach: I would think that that was possible and that's one of the reasons that I emphasize all of the other evidence that was before the Congress and that they knew exactly what they were doing when they applied these tests.
Byron R. White: Now the Attorney General from Louisiana indicated that there was a high vote in the primary on this date of 1964 that despite the interest of the general election that there was a much lower vote in the -- in the general election.
Nicholas Deb. Katzenbach: Yes but I think --
Byron R. White: Is that true?
Nicholas Deb. Katzenbach: The --
Byron R. White: Those figures he said about 70% or 80% --
Nicholas Deb. Katzenbach: Well, he gave these figures I think of those registered. I think that's his percentage figures because you can't get to a figure of a total of 66% in Louisiana registered to an 80% participation and we thought merely we can't --[Laughter]
Byron R. White: Well that -- is that the figure? Is that the figure 66%?
Nicholas Deb. Katzenbach: The 66% registered in Louisiana and as I -- I think and he understated that figure in the point of fact and the difference between the registration, Whites and Negroes and Louisiana is over twice as many eligible whites to eligible Negroes and it's a count of four in Louisiana as the record bears out by the fact that part of that state, there has been very little discrimination and in part of that state, there has been a good deal --
Byron R. White: Do you have the --
Nicholas Deb. Katzenbach: -- with the discrimination of these courts aware from Louisiana case.
Byron R. White: Apparently, there's nowhere in this record that I have seen the actual figures for 1964 as between the primary and the general?
Nicholas Deb. Katzenbach: I believe those figures maybe in the hearing since the number of table -- I'm not sure of that Mr. Justice White.
Byron R. White: Because South Carolina didn't input their figures for 1964 in their sheet, in their appendix and --
Nicholas Deb. Katzenbach: There's a very light primary turnout 1964 in South Carolina. I believe that -- I think that was stated by the counsel.
Speaker: May I ask your General Katzenbach [Inaudible]
Nicholas Deb. Katzenbach: Yes, I believe every -- yes, every --
Speaker: Was there any [Inaudible]
Nicholas Deb. Katzenbach: Its repeated statements of no discrimination that are made. There's not -- this is sort of -- in the record, it's sort of an evidence of the law enforcement officials saying there are no complaints that have been made to them. So the different statistics was commonly testified to as resulting from apathy on the part of Negro voters and that was the reason for potential Negro voters and that was primarily the reason why they weren't more Negroes registered. There's also a good deal in the way the statistics on education which was showed at a higher rate of illiteracy among Negroes -- less literacy among Negroes than among Whites but the -- apart from general statements of that kind and I would like to be clear with this Court, Mr. Justice Harlan, obviously, there are degrees of difference. There are degrees of difference between states in the South, there are degrees of difference between Southern states, Northern states, discrimination as you indicate exist in many places. I have no question on the record of the feeling that Mississippi, Alabama, and Louisiana based on suit after suit after suit within those states wherein a different category is reflected in the legislation than states like Virginia and South Carolina where a discrimination if any with respect to voting was considerably less. The Congress felt that the basis was triggered and the other evidence that there was a sufficient danger that these tests and devices were being used even in South Carolina, Virginia, for the purpose of discriminating against Negroes in violation of the Fifteenth Amendment and for that reason provided for a more refined judicial inquiry to find out whether or not this was in fact true with suspension of the test in the interim. In other words, it was a simple method of a time to identify what they thought the real danger spots were and then taking action with respect to them and indeed repeatedly stated in Congress that the fact that they fell within this trigger did not mean that they had in fact been discriminated in voting but merely that there was a danger of it. It wasn't making a judgment about that instead, there are enough factors involved there to warrant our closer examination of whether or not these has split or not -- these tests and devices are being used for that purpose and for that reason it set up the procedure requiring state of the subdivision separately affected by the Act to come into the District of Columbia to three-judge court. And if in fact discrimination was not existing on a widespread basis, it's just sporadic, small incidence of it that they could by the judgment of that court be relieved of the suspension of tests and devices.
Hugo L. Black: These so-called triggers affected automatic, aren't they?
Nicholas Deb. Katzenbach: They are virtually automatic. I --
Hugo L. Black: They just used some words --
Nicholas Deb. Katzenbach: In fact the Attorney General of the same (Voice Overlap)
Hugo L. Black: -- use some words to say that if this petition exist, it's not difficult to find out, that's the condition upon which this Act will go into effect.
Nicholas Deb. Katzenbach: That's correct Mr. Justice Black.
Hugo L. Black: And it would cover certain states.
Nicholas Deb. Katzenbach: Yes sir.
Hugo L. Black: And after all the intents and purposes was to cover a certain state. If that's the case, what difference does it make about rationality if this is a -- Congress had a right to pass the law. It also has the right to condition it for an automatic term such as for the next six months, 12 months on certain census, certain population, and so forth. That being the case then, why isn't the fact that it permits some states thereafter to relieve themselves from it and that act of grace on the part of Congress which it does not require any judicial review at all.
Nicholas Deb. Katzenbach: I believe that could be true and I believe that these provisions were intended simply to mitigate rather than aggravate any supposed harshness in the -- in the test that --
Hugo L. Black: But still it gets -- that still leaves you with one proposition which I think probably you've finished or I'm not sure. Assuming all of these, getting over these so-called procedure hurdle I rather call them, assuming that you have a situation where no provision of the Constitution gave general power to the states to govern election and it could take its literacy test. Now you have a new provision, you take a new look at the Constitution and they say we'll had covered it here with the state. We want to correct it. The main trouble has been their reference for depriving people their vote on account of color and we're going to amend that so as to say that there could be no law of that kind and we're going to go further to say that that is barred by the Constitution. We're going to give Congress in addition to its necessary and proper power another buttressing to make it still counter that they have the right to pass such legislation as is necessary or appropriate to us in no difference between the words, much in order to do this, you still have to meet the problem of whether they have the power for it -- I can see no distinction myself between temporary and permanent. If they don't have it permanently, I don't see why they have it temporary. Then you've got to see whether or not they have the power to do away with this test if Congress reaches the conclusion that it's necessary to do it in order to protect the voters right from discrimination on the account of color and of course Congress doesn't have to have evidence of what's been done, it's a matter of the history of the nation which had been denied here, politically known to everybody in the country that those tests have been used for that purpose as established in all the cases. But you -- what is -- what is your answer to the argument that that is the way the Congress has the full power to obliterate the test temporarily or permanently if it sees that it reaches the conclusion that that's the way to protect their right. Why don't they have that right?
Nicholas Deb. Katzenbach: I think it does Mr. Justice Black. I think in -- and I think it's exercised it in this case. I think that the only question between the temporary and permanent is if whether and I think the Court would be differential to Congress and I think to question is whether or not it's necessary to abolish them for all time or whether it's necessary to allow --
Hugo L. Black: Well, I would consider that myself to be their business and not mine?
Nicholas Deb. Katzenbach: And I think they have the -- I think they do have the power to suspend or to abolish these tests. I think in this -- and that's exactly the power that they exercised within this Act. Now, they chose to exercise it within those areas where they believed the Congress made the judgment, there was a higher act -- actual abuse or higher possibility of abuse, and then they put in, and I agree with you Mr. Justice Black that it was not necessary to put it in, but they put in a provision permitted a state to say we've been fairly administering these law in the past.
Speaker: In all events you have that permanent case?
Nicholas Deb. Katzenbach: No.
Speaker: [Inaudible]
Nicholas Deb. Katzenbach: I think it would be more difficult case Mr. Justice Harlan because I --
Speaker: [Inaudible]
Nicholas Deb. Katzenbach: -- that differs Congress to make the judgment that this is necessary for all time would seem to me a more difficult judgment to make and to say that this is necessary for a period of years.
Hugo L. Black: Of course that's the difference in the courts. From my standpoint, that's the business of Congress and not split it up into parts to say that for us to split it up and say it'd be reasonable to go this far but not reasonable to go this far in particular direction. I think that's their business.
Nicholas Deb. Katzenbach: I want to simply cover a couple of points rather briefly. In my judgment, Section 5 as it was discussed here in the view of the Government, if it's legitimate for Congress to suspend the operation of tests and devices under Section 4, those which presently exist than it would seem to me to follow from that, that Congress could take any such similar laws or laws affecting the same situation and suspend those absence on form of judicial or executive approval, executive approval which resort to the judiciary or judicial approval. I think it's particularly true if you look to the history of the efforts in some states as soon as you deal with an existing law to enact a new law which makes it more difficult to enforce. I think to say that Congress has one power without the other is to deny that they really have a power to enforce the scheme under the Fifteenth Amendment. I think the procedures that require people to come in to the District of Columbia states subdivisions are reasonable. They have judicial precedent for requiring people to come in not merely the Emergency Court of Appeals, but until very recently it was the common practice in suits against government officers and agencies which for reasons venue always had to be filed in the District of Columbia so that it seems to me that there's nothing particularly unusual or horrendous in this. There has been discussions saying about a hundred mile subpoena. I call the Court's attention to the fact that subpoena power apart from the facts you're dealing here with state officials and one might think would testify freely the subpoena power can run beyond the 100 miles with the -- with the approval of the Court. As far as the proof, non-discrimination is concerned, there's a testimony in the record for Congress that really this isn't a difficult proof because what happens is you simply come in, you get testimony or depositions, state officials saying there have been no complaints, no discrimination. And then incumbent upon the Attorney General to go back in and show that there has been voting discrimination and to produce that evidence. Absent to that and absence to his production of that evidence, the State would clearly prevail. So that it is not carrying a heavy negative burden of proof. The point of the fact, the proof really would be upon the --
Byron R. White: Are you talking about Section 5 now?
Nicholas Deb. Katzenbach: No, I'm talking here about Section 4 (d)
Byron R. White: You're going to talk about 5, I take it.
Nicholas Deb. Katzenbach: I'm not going to devote time to 5, Mr. Justice White, unless you have questions. It seemed to me that if you have the power to suspend the existing test you -- Congress has the power to cope with future legislation which might affect the scheme and resolution that it has here and as a practical matter it's impossible to make a definition of a law, broad terms, which -- and the state -- what its impact is going to be by some definitional process because then when the new law is enacted, it goes then through the process of long -- pieces of long time of litigation. So here, they said the new law -- you can't say you can't enact the law incidentally. It's just you can't enforce provisions of a new law until such time is in effect the Attorney General has entered a consent judgment on it or you've gone into court and it indicates that it's not done with the purpose or effect of violation of the --
Byron R. White: Who asked – [Inaudible] in that kind of piece of litigation Mr. Attorney General that --
Nicholas Deb. Katzenbach: In that piece --
Byron R. White: -- it passes a new law and he can't put it in effect and it comes to you and it says we're not doing this for any purpose of discrimination. You said, we'll, I don't know about that. I'm not going to clear it. Go to court. And they go to court. Now, who -- who ask to show what their -- they got the burden I think.
Nicholas Deb. Katzenbach: They got the burden, yes, Mr. Justice White. They're just as -- anybody who is under in a special category and it seeks to be exempted from it, carries the burden and I conclude my argument that the --
Hugo L. Black: May I ask you just one more question?
Nicholas Deb. Katzenbach: Yes sir.
Hugo L. Black: Do we in your judgment have to decide that question about 5 in this case?
Nicholas Deb. Katzenbach: South Carolina has urged it because it extended for one hour its voting laws, something which they have not inquired with the Attorney General about which he would be happy to offer us. I don't --
Byron R. White: And Mississippi has got a (Voice Overlap)
Nicholas Deb. Katzenbach: Mississippi has a new law which sets minimum standards of literacy. I would -- I would say that Section 5 so interrelated to what I described as the heart and core scheme of the statute that it would be difficult to decide the issues under Section 4 without making reference in deciding the questions under Section 5 Mr. Justice White.
Hugo L. Black: One other question on this. Suppose that they -- suppose that's held invalid, why would that invalidate the other section of the bill.
Nicholas Deb. Katzenbach: Well, there's a Separability Clause. I would suppose that as I've stated that it's very difficult for me Mr. Justice Black to conceive of the argument would invalidate Section 5 would not also invalidate Section 4.
Hugo L. Black: I suppose someone else could see it differently and they did hold that.
Nicholas Deb. Katzenbach: Well, then that would be --
Hugo L. Black: Would you say that that would invalidate Section 4 in the other provisions of the bill?
Nicholas Deb. Katzenbach: No, I would not Mr. Justice Black. I would say that enforcement of the Voting Rights Act of 1965 would be very much more difficult.
Earl Warren: Mr. Campbell.
Levin H. Campbell: May it please the Court. Massachusetts appears as amicus curiae in support of the constitutionality of the Voting Rights Act of 1965. We are honored to be represented in oral argument by a distinguished citizen of Massachusetts, the former Solicitor General of United States, Archibald Cox who today appears before this Court, will appear before this Court as a special Assistant Attorney General of Massachusetts. Mr. Cox will argue the constitutionality of the Act and the greater part of Massachusetts time will be given over to Mr. Cox's argument. Before Mr. Cox's argument, however, I shall address myself for 10 minutes or eight or nine minutes to a single point which I believe it is most important to make clearly at the outset namely Massachusetts' deep interest in this case as chief of the Massachusetts Attorney General's division of civil rights and liberties and as a regular staff member who deals regularly and primarily with matters inside the borders of our state, perhaps I can make this point even more urgently than can Mr. Cox. And may I say parenthetically of course that Massachusetts has been joined in its brief amicus curiae by 18 other states, five of which like Massachusetts have literacy test and 13 of which do not have any form of literacy test and of course all of these states share our concern and interest. Admittedly, the 1965 Act does not suspend tests and devices in Massachusetts. We have a literacy test but the Act does not affect our literacy test. This is because the Act is concerned not with literacy test per se, but only with their use as so-called engines of racial discrimination.
Potter Stewart: That's not quite true about the Act. It might have been true about the concern of Congress. I'm sure it was but the Act directs itself to literacy test per se, doesn't it?
Levin H. Campbell: Well, I would feel Your Honor --
Potter Stewart: In the seven states.
Levin H. Campbell: -- that the purpose -- that the purpose of the Act with the triggering mechanism and the --
Potter Stewart: Was to eliminate the discrimination and the abuse which is going on a under this -- under these literacy tests. But the tests per se are the object of the Congressional attack, are they not?
Levin H. Campbell: The tests are certainly -- are certainly related but only tests were --
Potter Stewart: What results -- what results from this Act of Congress if it's valid is the registration of thousands of -- hopefully of illiterate people in these states, am I correct?
Levin H. Campbell: Conceivably that would -- that would be so.
Potter Stewart: Well, isn't that the purpose, isn't that the effect?
Levin H. Campbell: Yes. And it might well be the effect in some areas. Massachusetts -- I might go on. Massachusetts is directly and vitally concerned with ending the denial everywhere in the nation of the constitutional rights of Negro citizens of the United States and what I perhaps would like to emphasize is the interest that Massachusetts has in saying that the rights under the Fifteenth Amendment throughout the nation are enforced and a much greater interest perhaps that we have in this that in the question of literacy test as such. I might say that even in my state there is considerable question now as to the continuation of the Massachusetts literacy test. The day as long since vanished that if it ever existed when systematic denial of rights under the Fifteenth Amendment in one or more states could be regarded mainly as a local phenomenon. Let me outline a few of the reasons why this appears to be so. Last August, I was sent by the Attorney General to Springfield, Massachusetts where incidents which had occurred which we feared might lead to racial disturbances of the type that have occurred in many Northern and Western cities. Fortunately, the immediate trouble in Springfield subsided, but my point is that Springfield, Massachusetts like Boston, like New Bedford, like Cambridge, like other Massachusetts cities and areas has a steadily growing, very large Negro population. Between 1950 and 1960, the total Negro population of Massachusetts grew by approximately 50,000. Of these inquiries, we estimate that almost 50% or 25,000 came from outside the State. In many cases, these new citizens came from the Southern states. Is it not plain that Massachusetts is deeply and vitally concerned by the attitudes and the backgrounds that these new residents bring to our State. We want them to be law abiding to participate as good citizens in our electoral process and yet one wonders what attitudes a man or a woman is going to bring into a state where he has been the victim of systematic discrimination. A man or a woman who has been systematically deprived of his constitutional rights in one state can hardly be blamed if he or she is apathetic or defiant or suspicious or even hostile towards the law and towards organized society in the new state to which he is moved, and increasingly, as I say Massachusetts and the Northern and the Western states are becoming the homes of citizens who are born in other states. I don't say this is a kind of a cheap and easy way to shift responsibility from our own shoulders to those of our southern sister states. We have our problems in Massachusetts and we are certainly learning that the condition that the problems that we have and the forms of discrimination that we may have in some of our states maybe just as persistent and just as difficult as those in the southern states. But at least a legalized discrimination does not exist, and while eliminating the growth reforms of legalized discrimination throughout our nation won't solve all the problems it is certainly obvious that there can be no final solution so long as the law, the courts and the authorities in some portions of our country actually support and encourage discriminatory practices in violation of the federal constitution. This is a matter of concern to all of the states. Basically, what I'm saying is that we are one nation. The truth is that the problem of creating the conditions of just and equitable relationships between the races is a national problem. It's not a problem that belongs to the one or the other of the states. In our mobile society and an agent mass communications as well as mass travel, a state cannot discriminate and expect the resultant attitudes that feelings and resentments and consequences to stop at that states own borders and not to be a matter of concern to other states. I will just mention one or two other points before concluding on this matter, but certainly we're concerned in Massachusetts not only with Negro citizens who come into our State, we're concerned with the right of citizens of our State to move out of Massachusetts and would become residents of other states and to enjoy their constitutional rights in those states. Increasingly, this becomes tied into economics, to jobs as it's obvious, most -- many jobs now in private industry or in the government involve travel, involve residence elsewhere and Massachusetts Negro citizens may it be in Georgia or Mississippi or in Illinois or California one or two years from now.
Abe Fortas: Counsel, can you think of any reciprocal complaints in any of the southern states might have with respect to any -- to your state.
Levin H. Campbell: I can't find -- I can imagine many --
Abe Fortas: You said it's a national problem, I was wondering whether the southern states reciprocated feelings of this expressed to any of them to your knowledge think that any of the customs north of the Mason-Dixon Line are objectionable.
Levin H. Campbell: I certainly -- I'm sure they feel that way Your Honor. Of course, we're not complaining about -- if these were questions of customs, I wouldn't be here today and I think that it's a question of constitutional rights. I will conclude. I could go on and mention questions of foreign policy. I could mention many other issues and I realize it in the sense I am simply building [Inaudible] and repeat points which are obvious to the Court. But I do think it is important and the reason that we have filed this amicus brief, the reason that many states have joined us in this amicus brief is that the question of the relationships between the races, the questions of the effective Constitution simply are no longer malice which has to deal with how the state treats its citizens or that states treat its citizens and other states really aren't interested. We are all interested in problem that we have to face in connection with the -- with the relationships between citizens in this country are problems which are as important to Massachusetts or to California or to Illinois as they are to what Mississippi or to Georgia. Thank you.
Earl Warren: Mr. General Cox.
Archibald Cox: Mr. Chief Justice, may it please the Court. I should concentrate my argument upon our submission that provisions of the Voting Rights Act, requiring the suspension under certain circumstances of literacy tests and other tests and devices defined in Section 4 (b) are valid exercise of the power conferred on the Congress by Section 2 of the Fifteenth Amendment, to enact appropriate legislation for the enforcement of Section 1. Initially, we rest upon five propositions that seem to us to sustain the great bulk of this statute. First, the Voting Rights Act of 1965 is concerned with the suspension of literacy test and other tests and devices only in circumstances where they're used in the judgment of Congress, carries undue danger of racial discrimination in their application, resulting in the denial of the right to vote on grounds of race or color. I think there's a very important distinction here that I'd like to emphasize. A literacy test may bear harder on a particular race or class in either of two ways. It may bear harder upon Negroes, it was suggested during the consideration of the Fifteenth Amendment, because most of them are illiterate as was the case at that time. It may also bear harder upon Negroes for a quite different reason that it is administered in a discriminatory fashion. So that same test is not given to them as it's given to Whites or so that a test is given to them and no test is given to Whites. And it is that latter kind of discrimination with which this statute is concerned, and that kind of discrimination was never mentioned in the debates on the Fifteenth Amendment. It was concerned only with the lack of literacy as such. Here, we're concerned to repeat with discriminatory application on such consistent discriminatory application as I argued last year in United States against Mississippi that it really has been read in to the state law itself. Second, the authority given to Congress to enact enforcement legislation, we say, carries the power to forbid where it's necessary to do enforcement any state activities which present danger of continued violations without waiting for the wrong to occur. Now, it's conceded here as I understood Mr. Robinson's argument, and quite rightly so, that Congress under other sections of this stat -- Constitution has power to deal with what it considers potential if not actual sources of evil as the Court said in one occasion or that it may enact preventive or prophylactic measures outlawing to remove tempting opportunities, a rather apt description I may say in these tests. The argument is that where Congress is acting under one of the powers given in Article 1, it may regulate that here, but here it may only enforce, but that argument is contrary to our whole constitutional history as far back as Prigg against Pennsylvania before the Civil War described in the opinion by Mr. Justice Stewart said that wherever there was a right given by the Constitution then Congress had power to enact appropriate legislation to enforce it and that has been the way the Constitution has been applied consistently. For example, Section 2 of the Eighteenth Amendment gives power to Congress in the same words as Section 2 of the Fifteenth to enact appropriate legislation for the enforcement of that article, and of course the Court repeatedly upheld and the lower courts repeatedly upheld regulatory measures that did more than simply deal with adjudicated violations of the statute itself, but which swept in that, broad enough to deal with the dangers of violation. And these things were recognized in the early cases under the Fourteenth and Fifteenth Amendment. Perhaps the clearest expression was that by Mr. Justice Bradley in United States against Cruikshank when he was sitting on the Circuit. There he used words, which flatly repudiate Mr. Robinson's distinction between enforcement and regulation. The method of enforcement, he said, or the legislation appropriate to that end will depend upon the character of the right to infer. It maybe by the establishment of regulations for attaining the object of the right. There he used the very word regulation as something that could be done in enacting enforcement legislation. And again, in Strauder against West Virginia quoting from the earlier case of United States against Reese this Court said, “Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The fault and manner of the protection maybe such as Congress in the legitimate exercise of its legislative discretion shall provide.” I would emphasize one more case ex parte Virginia. “Whatever legislation is appropriate that is adopted to carry out the objects, the amendments having viewed, whatever tends to enforce submission of the prohibition they contain is brought within the domain of congressional power.” Now that language of course is very reminiscent of the famous language by Mr. Justice Marshall in McCulloch against Maryland. In fact, it must have been written with the language in McCulloch against Maryland in mind, if not actually in the front of the authors who copied it. And I think Mr. Justice Harlan to come back to the distinction I emphasized in connection with my first point, that there is nothing in the history here with respect to literacy test which would operate in such a way as to disqualify more Negroes than Whites that curtails the power of Congress to deal with literacy test and other tests and devices which have built into them engines of discrimination because of the way they are applied unevenly. It's just as if in Mr. Justice White's examples during the course of the argument that they had enacted a literacy test for Negroes and not for Whites or a different literacy test for Negroes and not for Whites and certainly, there's nothing in the history of the Fifteenth Amendment that suggests that that was permissible. Our third point is that Congress may act selectively. It's not bound to deal in a single statute with every aspect of the evil and I would say that this statute in an answer to a question that was asked by Mr. Justice Fortas does deal selectively with the problem and that this of course is a familiar legislative power. There are other statutes dealing with the overall problem of the Fifteenth Amendment. This statute deals with the problem in a number of different ways, and we suggest that both with respect to procedure and with respect to error, Congress could operate selectively in such a way as to deal with the situation where the evil was seemingly greatest and where the particular remedy provided was seemingly the best, the most appropriate and that is, I insist, a legislative question.
Potter Stewart: It's ultimately a judicial question though, it's ultimately a constitutional question.
Archibald Cox: It's ultimately a constitutional --
Potter Stewart: And therefore a question for this Court to decide, is it not?
Archibald Cox: The Court has to decide ultimately whether this is within the power given to Congress and --
Potter Stewart: Regarding the question particularly I mean is to whether or not this is appropriate legislation.
Archibald Cox: Well, the judgment of appropriateness, it would seem to me, Mr. Justice Stewart, was essentially one for Congress --
Potter Stewart: Well now let's say -- let's take a case (Voice Overlap)
Archibald Cox: Well, I use the word section.
Potter Stewart: Does the State of Wyoming have a literacy test?
Archibald Cox: I don't recall. Let's assume it does.
Potter Stewart: And let's assume that Congress said under our power, under Section 2 of the Fifteenth Amendment, we're going to abolish all the literacy tests in the State of Wyoming.
Archibald Cox: Just Wyoming.
Potter Stewart: And there would be or they might synthesize some test that would apply to Wyoming and only Wyoming. Then it would certainly be a matter for this Court to decide as to whether or not that was an appropriate enforcement of the Fifteenth Amendment, was it not?
Archibald Cox: I did not mean to indicate that whatever Congress did could be said to be appropriate. There comes a point to a judicial judgment. There have been historically difference within the Court as to how much judicial judgment should be exercised. I was seeking to avoid being drawn into them because I think this statute is well within that area whichever degree of scrutiny the Court applies to the legislation, but I agree that ultimately, there are some judicial -- appropriate judicial determination as to whether the means is adapted to the end, yes of course.
Abe Fortas: Mr. Cox, may I ask you a question, I don't want to interrupt you. The -- I suppose that the initial question is whether the legislation adapted by Congress has as its purpose the object stated in the first sentence of the Fifth Amendment, that is to say that the legislation in order to be supported by the second sentence of the Fifth Amendment has to have a rational relationship to the elimination of an abridgment of voting rights on account of race or color.
Archibald Cox: Yes.
Abe Fortas: Would you agree?
Archibald Cox: Yes.
Abe Fortas: In other words, take for example -- let's suppose that Congress passed a law fixing voting age at 16 in all of the states and overriding the state's special law.
Archibald Cox: Correct, I agree that --
Abe Fortas: That it could not be supported presumably under the second sentence of the Fifth -- of the Fifteenth Amendment.
Archibald Cox: Entirely Mr. Chief Justice.
Abe Fortas: So that it has to have a relationship to it --
Archibald Cox: Oh! yes. I didn't mean to say anything inconsistent with that. I did mean to suggest that in determining what was appropriate --
Abe Fortas: The Congress --
Archibald Cox: -- the Congress had a very wide area of judgment --
Abe Fortas: Yes.
Archibald Cox: -- conversely, that the Court has an obligation to defer very widely to that judgment. I also meant to imply that of course this is not a matter of reviewing the findings made on the record by an administrative agency. Here, we're dealing with an area in which I suppose no group of man has as much knowledge and as much personal experience, the basis of which to form their judgment as the Congress of the United States. We're dealing with voting matters with elections, with registration, things that they've made, they do it. My fourth proposition and I want to emphasize it, is that Congress made the dominant and ultimate test of the requirement for suspension because of the danger of violation, a judicial determination of whether a state or a county had used literacy test or other test or device as an engine of discrimination in the past and I would emphasize that that dominant test applies everywhere to every state and every county in the United States. There is no difference between them. Section 3 (b) printed on page 90 of the Government's brief, very specifically provides that when the Attorney General has brought a proceeding in any state, if the Court finds that the test or device has been used for the purpose or with the effect of violating the Fifteenth Amendment, then it shall suspend the use of test and device in such state or political subdivision. That's uniform. It applies everywhere, but the dominant test of course even to those states or counties under Section 4 is the same one, a judicial inquiry into whether a test or device has or has not been used in such a way as to result in violations of the Fifteenth Amendment. Now, I don't mean to suggest that there are no differences between those under 3 (b) and those under Section 4, but the dominant ultimate test in each case is the same and if there is any state represented here in the courtroom today that has not used the test or device to violate Fifteenth Amendment or whose officials have not so done, all it has to do is to go in to court and show it. They could have been if this is true in South Carolina or Virginia. They could have filed a suit in September. They'd be well away to a decision now if assertions are true, perhaps it would have had the decision in the lower court. They are created equally in terms of the ultimate test. This is --
Potter Stewart: As I understand it, if they went in and lost then the five years would start running again, wouldn't it or do I misunderstand --
Archibald Cox: As at the time that the violation had occurred, it is five years from when it was used --
Potter Stewart: From the violation and not from the finding?
Archibald Cox: From the violation as I understand it.
Potter Stewart: I'm --
Archibald Cox: Yes.
Potter Stewart: I was -- it just occurred to me --
Archibald Cox: And I would point out that this is also true with respect to examiners. There's a provision for the appointment of examiners by the Court when a finding that a test has been used to violate the Fifteenth Amendment is made, and equally, the power to appoint examiner's falls, if a state makes each case under Section 4 (a), there's no great difference in the long run in other words with respect to the way the states are treated. Now, fifth I suggest, that the propriety of suspending a test or device where there is that kind of judicial determination that has been used as an engine of racial discrimination is sustained squarely by the decisions of this Court at the Mississippi and Louisiana cases decided last term. Some of my friends attempted to distinguish the Louisiana case on the ground that that was a suspension only pending a full registration. It covers only one of the statutes. There were other tests or devices in Louisiana that were fully suspended and of course that was the theory of the Government's case in United States against Mississippi. I may say in this connection too that it seems to me that those cases implicitly sustain the power of Congress to enact legislation, dealing with perspective violation in the future because of course the only reason that equity court is concerned with violations in the past is because of what they show with respect to the future. It's not a punishment. It's a way of dealing with the danger not the actuality, the danger of perspective violation and where did the Court's power come from those cases to issue that kind of decree. I take it that it came from Congress, from the power granted by Congress under Section 2 of the Fifteenth Amendment as appropriate legislation because when Congress gave the courts jurisdiction to hear that kind of case under the 57th and 60 Civil Rights Act, it impliedly gave the courts the usual powers enacted the court, but the ultimate source, I suggest, with all sincerity would seem to be Section 2 of the Fifteenth Amendment and not some inherent power under Article III of the Constitution which is unrelated to the Fifteenth Amendment. If these propositions are sound, and it seems to me that they are scarcely open to serious debate, then the essential thrust of the Act is certainly constitutional. Now the argument really comes down to the significance given by the statute to the determinations made by the Attorney General and the Director of the Census. Under the statute, they are the measures which Congress desired to be used for determining where and when the use of a test or device carry sufficient danger of discrimination to warrant two or three consequences. One consequence which it attached to those determinations was the immediate suspension of the test or device, pending full judicial inquiries and nothing more. Second, requiring the state or county as to which the determinations have been made to establish its right to an exemption from the prohibition and only that and then third, it opened the door to the immediate appointment of examiners, but again the power that was only interim, awaiting and which would fall if the state established its right to an exemption under the judicial proceedings authorized to be brought in the District of Columbia. The question then comes down simply to this, whether the somewhat different consequences that Congress attached to the making of these determinations under somewhat different consequences they would have in one set of state and counties as applied to another is reasonably adopted to the prevention of violations of the Fifteenth Amendment.
Abe Fortas: Mr. Cox, may I ask whether you consider that there's another question here in the Court actually under 4 (a). The question put to the Court is whether any of such test or device has been used during the five years preceding filing of the action for the purpose of what the effect would bridge in right to vote on the grounds of race and color. And I suppose that theoretically it would be possible to argue that that standard is so limited that to say whether the test or device has been used during the four years as to raise a question as to whether it does properly establish a situation within the ambit of the first sentence of the Fifteenth Amendment. Now, I'm not suggesting that question is before us now. I don't know whether it is or not but theoretically that's the problem --
Archibald Cox: I suggest, Mr. Justice Fortas, that in appraising the significance of that provision that must also take into account the provisions of Section 4 (d) which define when a test or device shall be deemed to have been used for the purpose of the effect. That it very substantially, should I say, ameliorate, soften what might otherwise seemed to be the rigor of the five-year test because it indicates that small occasional violations, things that were quickly corrected and the like are not to be regarded as of sufficient importance to require a judgment against the State. And I take it the Court in reading those and then applying them would bear in mind what is the fundamental question? Has the state conduct in the past shown enough likelihood that this test will be used as an abuse in the future or to warrant it's disestablishment. Now, Congress indicated they didn't -- it had a full round with this I think that there had been enough violation and there was enough importance in securing compliance now that to require a very high degree of proof, but nevertheless the essential theory of the Act remains what I've explained and the court in interpreting this exact words would certainly take that into account.
William J. Brennan, Jr.: Mr. Cox, the sense to which you have some questions of rationality and so forth particularly as the choice in the 1964 presidential election day.
Archibald Cox: Well, I think that -- that's right and I'd answer your question this way if I may try to put it in the context of the argument. I have some difficulty in accepting the proposition, it was put in the form of question and I just state it that way for convenience, that Congress did say, “Well, let's outlaw literacy test in Virginia and nowhere else.” It seems to me that that is -- if there is nothing to distinguish Virginia from other state, if indeed everything that can be suggested is that Virginia is quite as bad as another state. It would -- I would feel grave doubt as to whether that was consistent with the spirit of the Constitution even though there is certainly no specific provision in the Constitution that it would violate and I think therefore in finding that this is legislation before it can find that this is legislation reasonably adapted to enforcing the Fifteenth Amendment that the Court must find that these different procedures have some rational relationship to achieving that objective in places where the problems are somewhat different.
William J. Brennan, Jr.: But what about the November date?
Archibald Cox: Well, that these I think, the November -- you mean because it was passed or just [Inaudible] effort?
William J. Brennan, Jr.: What has to be our concern with the choice by Congress of that date?
Archibald Cox: I think your concern with the choice of that date is only where the Congress could within its legislative judgment rationally conclude that low participation in voting as shown by that election has some bearing on the need for immediate interim suspension of the test and immediate interim power to appoint examiners. Now as --
Byron R. White: Mr. – (Voice Overlap)
Archibald Cox: (Voice Overlap) Congress studied a lot of figures that certainly it's not for the Court to decide which figures are better than any other figures. I am convinced from what I know of the facts, including the records before Congress, that there were very good reasons for choosing that date in general. Now, that doesn't mean it's perfect in any instance. For example, registration figures perhaps would be better, if what had accurate registration --
William J. Brennan, Jr.: Alright, but apart from that as I understood it Mr. Cox -- at least adopt the Attorney General suggested that -- and the function of the choice of date was to be sure that the states where the evidence can really before the Congress indicated the abuse of the tests would indeed be caught under the statute --
Archibald Cox: Well, I obviously --
William J. Brennan, Jr.: If that -- if that were so, what do we have to be concerned with?
Archibald Cox: Well, I think that I understood him -- don't let me put words in his mouth. I would have submitted the proposition a little differently. Suppose that you and I were trying to develop a test for determining which barrels of apples were rotten, we didn't know what was in there, we do something about some barrels. Now, if somebody put forward a test for determining which are rotten and we knew that it left one barrel that we knew to be rotten outside the test, we'd reject that test. We'd say it isn't a very good test and we would come to it, we would seek to devise a test as we worked along that conformed to what we did know. In the case of the state like Virginia, we just didn't know. We have many things fighting in the direction of the conclusion that the literacy test in Virginia was used to discriminate. Whether that is the fact, I don't know but there are -- I'm not talking about record evidence, I'm talking about inferences from general conditions including discrimination in the application and the administration of the poll tax and the lot history of discrimination there. The low participation in voting, all those things tend toward the conclusion that there has been discrimination. They're not perfect to the Court, but the best figures after Congress scrutinize, primary figures, registration figures and others seemed to be participation in the general election. Registration figures are Mr. Justice, are of no value at all. If you look through this record you'll find eight or nine counties in South Carolina where the number of illiterates plus the number of people registered are way above the population. It -- and you'll find that counties in Alabama and Mississippi as Congress looked in which more than a 100% of the population was registered.
Abe Fortas: Well, let me (Voice Overlap) that something is wrong.
Archibald Cox: And the reason of course is this is not perfectly practical one that polls aren't -- the registration list don't have the names of people who are dead and so forth (Voice Overlap)
William J. Brennan, Jr.: I don't think I've made myself quite clear Mr. Cox. I wasn't -- this question wasn't directed to the distinction or difference if there was any between registration day and general election. If I understood it correctly, Congress made this choice of a date largely to assure that those states where there was the abusive effects would come within the reach of the statute and my question was in the constitutional context that we're dealing with this problem, what should be our concern with the Congress' choice of that date. Do we have to -- do we have to be satisfied that it was a rational inference in the choice of that date to the particular mischief that Congress was trying to deal with?
Archibald Cox: Well I think you can so easily be satisfied with --
William J. Brennan, Jr.: It must be, that's my question.
Archibald Cox: Well, I would think that it's the word of rational inference the case would be much harder, yes Mr. Justice, much harder.
Byron R. White: Well the only thing is that we are dealing with this matter in a vacuum. You're dealing on it on the whole record and I just -- the Congress didn't just say, well now, let's see -- should we -- is there some discrimination to attend to or maybe there is and maybe there isn't and so we'll set up -- we'll device the best test we could think of. We'll just say if any -- in any state that less than 50% voted that -- that's to us and that evidence of discrimination. That isn't the way it happened at all. They had much other evidence about -- about various states and if we have to consider the rationality of inferring discrimination of a low vote into the 1964 general election, I would think you really do have a difficult case.
Archibald Cox: Well, it's of course -- but Mr. Justice, I would suggest that the problem isn't that of inferring the discrimination from the low vote taken in a vacuum. It's the problem of --
William J. Brennan, Jr.: Alright, we don't have to be concerned with that then, right?
Archibald Cox: You don't have to be concerned with the rationality of the evidence taken in a vacuum, yes, it's quite true because there's every -- all kinds of things in our history, all kinds of things in the record before Congress that did show that the low vote coincided with all low vote plus the existence of test and device coincided in all probability, not certainty, probability with the likelihood that there was abuse of the test or devices in the sense that I've stated. In the counties and states that that those areas that this is all of our history as Mr. Justice Black said. It's not about our logical deductions simply from that one fact alone that Congress was able to test the yardsticks back against what to do, and each time it tested them, it coincided more and more with the facts of discrimination in the past. I'd like to say two final things. What is that fact that the measure used by Congress, the net put out by Congress sweeps a little bit widely that the actual evils of course is not fatal to what constitutional laws frequently deal in terms of probabilities and they sweep within their bounds on some things which may never end up as the case of that -- the evil. Here, Congress attempted to -- had been mitigate any evil with respect to the, perhaps, excessive broadness of the initial test by providing a way as I've said before that any state could come in and say that the conclusions we've decided would follow upon this fact don't, don't follow. And they said that any state could come forward and prove that it didn't discriminate, but second with respect to Section 5, I would just like to mention one fact that seems to me very pertinent to support the validity of Section 5, prohibiting changes in state laws and prohibiting -- putting them into effect until it has been found by the Attorney General or a court that they will have neither the purpose or effect of resulting in violation of the Fifteenth Amendment. Of course many of these states, most of these states as Congress knew had gone from one device for violating the Fifteenth Amendment to another device for violating the Fifteenth Amendment. And the record in the Mississippi case last year that Your Honors will find in the brief filed by the Government last year, shows how Mississippi came along with one lie after another in an effort to delay putting the Fifteenth Amendment into effect. The same thing was done in many of these states, if not all of these states, but it came to complying with this Court's ruling in the school segregation case. And that of course was the reason that the prohibition enacted in Section 5 is appropriate.
Abe Fortas: Do you think -- may I ask your help on this question? Do you believe that we must pass on Section 5 at this time or second that would be appropriate to not to pass on at this time. Do you have a judgment on that Mr. Cox?
Archibald Cox: As I understood the colloquy here, there is -- it's very doubtful as it is in the case in controversy about Section 5. We ultimately think that South Carolina has said that it wants to do -- let's put this one hour change with respect to the time the polls are open to the registration places open to effect that the Attorney General says that he doesn't deny their right to do it under the statute in the Fifteenth Amendment and therefore can they Mr. Justice, I must say that it's hard for me to see a case of controversy requiring the Court's adjudication. On the other hand, while my connection with these matters is now getting little remote, I must say that I think any doubts left hanging about the validity of Section 5 would be most unfortunate in terms of the securing the right guaranteed by the Fifteenth Amendment in the near future. Thank you.
Earl Warren: Mr. Handler.
Alan B. Handler: Mr. Chief Justice and may it please the Court. The briefs of California and Massachusetts and Illinois have emphasized among other things the [Inaudible] which all states have in a level and quality of political experience of the citizens of other states. We are indeed a populous and mobile nation. The continuous and free movements of people within and among states throughout the entire country is characteristic of our national life. Our state, one of the original 13 has the eight fastest rate of growth among all states, and annually, we experience an influx of persons from other states. The prior political experience and the capacity for political activity and citizenship of persons coming in to our state is of vital concern. We thus have a keen interest and the outcome of this litigation and a decision of this Court which would uphold the constitutionality of the Civil Rights Act of 1965 with its promise of securing, improving and expanding the exercise of the political rights of citizens in the states where those rights have not been recognized. We also consider it to be in the interest of the State of New Jersey to secure throughout the country and as many state as possible a broad and free exercise by the people of their political rights. This Court in Reynolds versus Sims, a case which gave us clause and required us to alter our previous state policy stated “no right is more precious in a free country than that of having a voice in the election of those who make the laws under which as good citizens we must live. Other rights even the most basic or illusory, if the right to vote is undermined. The right to vote and the exercise thereof thus indeed has a direct impact on the policies and actions of state government and on the enactment of laws by which the people are to be governed.” Our state voting laws recognized the importance of suffrage and are designed to accord the widest range, the popular exercise of the political franchise. The passing interest is the fact that the first Negro to vote in the United States under the Fifteenth Amendment was Thomas Mundy Peterson who cast his vote in Perth Amboy, New Jersey on March 31st, 1870, the day after the passage of the Fifteenth Amendment. Consequently, we do not view with alarm or misgivings the enactment of the Voting Rights Act of 1965, and assuredly, we do not concede congressional action in this area as an encroachment upon any power which we would otherwise assert or reserve to ourselves. The power of the State of New Jersey to prescribe voter qualifications is of course subject to the Fifteenth Amendment and to congressional enactments designed to enforce that amendment. In short, we concede that the policy of Congress which is reflected in the Voting Rights Act of 1965 as a reflection of our own state policies. Now, another important aspect of our interest in this case involves New Jersey's participation in the federal system. There are a great many important and substantial national programs which encompass federal assistance to state and local government. Examples come readily to mind; the economic opportunity act, area redevelopment, urban renewal and housing, mass transportation and highways, aid to education. These programs are implemented and administered on the state and local level by local government within the framework of implementing state laws and to state elective and appointive officials. If the solitary objectives of these programs are to be realized fully it is we think imperative that they'd be administered on the local level by officials truly representative of the people. New Jersey's interest in the outcome of this litigation is not therefore academic. For example, New Jersey contributes approximately 4% of the total funds for federal programs of assistance to local government. It receives approximately 2% of total distributions. Now, there may indeed be a need for greater expenditures of federal moneys in other states and areas. We do not complain here of disproportions in these vital federal state programs, but we are much concerned with the manner in which the moneys of our citizens is spent and utilized within the federal system. We must therefore be concerned with the quality of government in the states who are our partners in federalism. In sum the state of New Jersey with every other state of the union as an important state and an abiding interest in this historic litigation. Now this Court has had the benefit of ample and able argument on the part of the counsel, both opponents and proponents, with respect to various facets of the Voting Rights Act. Our additional comments are not intended to be repetitious merely emphatic of points already made in support of the congressional enactment. Two elements in my opinion are crucial and point compellingly to the conclusion that the Act is constitutional. First, there has been a failure of adequate enforcement with respect to previous voting rights legislation. This Court must, as in Congress, note this history. Secondly, there is ample factual documentation to justify the novel and the decisive remedies embraced, the Voting Rights Act of 1965. Now, the Attorney General has related the history of the implementation of the Civil Rights Acts of 1957, 1960 and 1964. It was his conclusion, notwithstanding the compliment paid by Louisiana yesterday to this Court and to the Department of Justice with respect to the efficacy of judicial enforcement, that despite scrupulous, unremitting and conscientious efforts on the part of the national government to secure redress on behalf of aggrieved citizens, the previous Civil Rights Acts have proved inadequate. As stated by the Attorney General before the Senate Committee on the judiciary litigation on a case by case basis simply cannot do the job. This history forcibly underscores not so much why Congress enacted the particular solutions envisaged by the 1965 Act, but also why it was compelled to consider new approaches the problems of racial discrimination in connection with the right to vote. There's no need to recount the complete overwhelming factual documentation demonstrating the need for the solutions encompassed by the Voting Rights Act of 1965. These have already been mentioned in our argument. We capitulate it in the various briefs filed and recorded in the extensive volumes covering the reports and hearings of Congress and the United States Commission on Civil Rights. The Act is thus, not based solely upon or borne solely of the emotions touched off by the Selma-Montgomery March in Alabama. What cannot be over emphasized, however, are the following factors. The fact that literacy tests and other tests and devices as defined in the 1965 Act have been misused and abused for the purpose of discriminating against otherwise eligible voters on account of their being Negro. The fact that in states where this discriminatory use and design of literacy test has been established, there exists articulated and effectuated policies of racial discrimination affecting other areas of life and endeavor and the fact that where there is a coincidence between the use of literacy tests and low popular participation in elections, these factors is usually correlated and thus speak of a purposeful racial discrimination. Now before considering the relevance of these foregoing factors with respect to the validity of the Voting Rights Act, it is well to fix briefly the undoubted power of Congress to enact such legislation under the Fifteenth Amendment. The Act itself is denominated as an Act to enforce the Fifteenth Amendment to the Constitution of the United States and the Fifteenth Amendment has been used many times to nullify state imposed voter qualifications. The lower court in United States versus Louisiana were marked. There is no license for the loose statement that in our constitutional system, the qualification of voters is exclusively committed to the states and Congress has traditionally been accorded great latitude in the selection of appropriate means with respect to the Public Accommodations Act of 1964, which was the designed to achieve social objectives, but was predicated upon the Commerce Clause ordinarily thought to encompass economic problems, this Court stated in Heart of Atlanta Motel, what means are to be employed is within the sound and exclusive discretion of the Congress. It is subject to only one caveat that the means chosen by it must be reasonably adopted to the end permitted by the Constitution. It is in this context and setting of one, the disappointing history of previous enforcement programs and two, the empirical evidence of the discriminatory purpose and effect of literacy in similar tests where suffrage qualification in states where there is a low percentage of popular involvement in elections that the suitability in a constitutional sense of the Voting Rights Act of 1965 must be gauged. Now, various features of this Act have been discussed both from the bench and the bar. The heart of the Act, however, is its most controversial provision, Section 4. Now, this has been characterized as establishing a rule in the nature of a rebuttable presumption and I think that this characterization for purposes of argument is generally accepted and we think that this device is entirely appropriate and necessary. Now, in argument yesterday, South Carolina made the point that under the Fifteenth Amendment by virtue of Section 2, Congress enjoys only the power to enforce not to regulate the aspects brought for under Section 1. I think this is indeed a semantic distinction. It was urged that Congress can only in effect punish for past acts, but cannot regulate with respect to future conduct. Frankly, I don't see why not. Congress may do anything appropriate to assure the full exercise of the right to vote without discrimination and that vote will not be abridged by any actions.
Byron R. White: Well, Mr. Handler what if the only evidence before the Congress about discriminatory application of -- discrimination against Negroes in registration was the fact -- where there were two facts, one, that literacy test did exist in some states and two, that in the 1964 election in several states, less than 50% voted. Now, that's the only evidence Congress have had and I would think that that's all the evidence the Congress had. They wouldn't have passed the Act in the first place, but in the second place, even if they had, what would you think is the terms of that presumption --
Alan B. Handler: Well, I assume --
Byron R. White: -- you may find acceptable.
Alan B. Handler: I assume the question is hypothetical Mr. Justice White.
Byron R. White: Although this is hypothetical in terms the way you are arguing it, do you find the presumption itself on those two facts to be acceptable and say appropriate.
Alan B. Handler: But the facts that Congress had before was the evidence that in most of the states where the literacy tests were used and where there was a low percentage of popular involvement, there were also well-established concerted long standing policies of discrimination with respect to the use of the literacy tests as well as discrimination in other walks of life.
Byron R. White: So that the acceptability of this presumption must be viewed in light of all the evidence not just the -- not just the low vote in 1964.
Alan B. Handler: I think it should be viewed in the context of all of the evidence, but with respect to the vote at 1964 and the reason for that date which was of some concern to Mr. Justice Brennan, I think it's important to bear in mind that the Act was designed to have immediate remedial effect as well as prospective remedial effect. Now we heard a great deal yesterday for example as to how several of the states in the South affected by this legislation have already corrected the evils that they assert the Act is designed to attack and obviously, in 1964 date was utilized in order to furnish the federal government with a reasonably current situation. If the date utilized for example was 1960 or a date more remote, then perhaps there would be some real credibility to the proposition that the states had corrected the situations with which Congress was previously concerned, but the 1964 date of course is a current and I think strongly militates against the argument that from the 1964 to date that there has been such a correction of the evils that the Act should not be applied. Now, the use of a presumption as a device for initiating the enforcement of the law is not unknown. Section 4 (b) in effect operates like any evidentiary, rebuttable presumption by shifting the burden of coming forward with proof to the party which is most able to furnish such proof. Thus, the use of a presumption not only strikes at the inordinate difficulties encountered under previous Acts, improving cases of discrimination on the part of the federal government, but it also overcomes the problems of delay and frustration encountered in a case by case judicial enforcement approach. Now, the provisions of the Act also call for the suspensions of literacy tests and devices for some period of time and this we also conceive to be appropriate. For one thing, in the states affected, such tests have usually been designed and applied for the intentional violation of the Fifteenth Amendment. Also in these states, there has been a policy of overt or covert obstruction with respect to the enforcement of the Fifteenth Amendment. Moreover, as a matter of common sense in recent judgment, it would be extreme optimism or naive take to assume that in states where there has been long enduring policies of racial discrimination that even well-disposed officials could assure the fair administration of such tests on the local level. Now, something has been said about the Act being a bill of attainder. A bill of attainder as I understand it is a legislative act inflicting punishment usually for past acts in such a way that the affected person is unable to avoid such punishment. It might be noted that traditionally, bills of attainder have generally been applied with respect to legislation, dealing with the acts of individuals such as threatening to overthrow the government or membership in the communist party. I for one would doubt that it has any sensible application to states as such or to the area of voting rights and privileges. More to the point Section 4 and Section 5 do not constitute punishment for past acts.
Hugo L. Black: Are you defending Section 5 too, constitutionality of Section 5?
Alan B. Handler: Well, insofar as Section 5 might be thought of as a -- in the view of the southern states as a punitive device, I would say that it still would not run a power of the bill of attainder prohibition of the Constitution. I do not clearly under --
Hugo L. Black: Suppose Cong -- suppose Congress passed a law, advising New Jersey to submit to the District of Columbia courts, all constitutional amendments before they became adapted. What provision of the federal constitution would you think authorizes this?
Alan B. Handler: Well, I think that it would be prohibited under the other provisions of the federal constitution, which explicitly provides for the manner in which constitutional amendments maybe adapted. I don't think that a bill of attainder argument or an ex post facto law argument would be the provision under which that legislation could be claimed to be unconstitutional.
Hugo L. Black: Now, when the federal constitution was adopted an effort was made to let courts pass on the constitutionality and the wisdom of Acts before they were passed for the Constitution of the various laws. Why would you look to find the authority in the Constitution to require a state submit its constitution for consideration by United States District Court and District of Columbia before it could go into effect?
Alan B. Handler: Are you referring Mr. Justice Black to a constitutional amendment to a state contribution --
Hugo L. Black: That's right, that's right. Suppose they did that to New Jersey.
Alan B. Handler: Well, I would have difficulty finding affirmative authority for such a congressional enactment rather than the need to find a prohibition which would preclude such a congressional enactment.
Hugo L. Black: Well, are you defending that phase of Section 5 of this Act --
Alan B. Handler: Well --
Hugo L. Black: -- as constitutional?
Alan B. Handler: Well, it would be our position that Section 5 is constitutional. Yes, and I think it would be constitutional in terms of an appropriate remedy and an appropriate approach available to Congress under Section 2 of the Fifteenth Amendment.
Hugo L. Black: Do you think that's a judicial function to pass on the constitutionality of constitution before it finally becomes effective?
Alan B. Handler: Well the --
Hugo L. Black: Do you think that's a judicial act or is that -- what kind of an Act is it?
Alan B. Handler: The problem I assume that's alluded to is the absence of a genuine case or controversy which gives rise to the exercise of judicial power. But Section 5 I think would have to be construed in the context of a case already before the Courts by virtue of actions brought by the Attorney General or by virtue of the state being within the purview of Section 4 and therefore not having before it the right to impose and utilize present tests and devices. I think it's analogous to the power exercised by -- or recognized by this Court in the Louisiana case in which, in connection with the injunctive relief which this Court fashioned or which the lower court fashioned and this Court approved, it was determined that the state could not apply a new test until the evils or the effects of past discrimination had been corrected.
Hugo L. Black: Suppose Congress has to pass a law provided that they're after constitution amendments for the federal constitution should be submitted to this Court in advance to pass on them.
Alan B. Handler: This would give me serious reservations. Now, when Louisiana itself claimed that she was being punished for past activities under the 1960 Civil Rights Act, Judge Wisdom for the lower court in Louisiana versus United States said, “Its purpose is not to punish Louisiana for past activities. Neither is it merely to prevent continued enforcement of unconstitutional provisions of Louisiana law. The prime purpose is to provide a remedy for a federally protective right” and finally, we think it's unrealistic to view the five-year suspension period, the need for which has been documented as legislative adjudication. It is based upon congressional fact-finding that such a period of suspension is necessary in order to cope with the problems of long standing voter discrimination. For all of these reasons as well as those previously urged by the Attorney General, the Commonwealth of Massachusetts, we urge the Court to find that this Act is constitutional.
Earl Warren: Gentlemen before the -- before Mr. Robinson, you're -- you're next --
David W. Robinson: Mr. Chief Justice may it please the Court. We had arranged for Attorney General McCloud to make the reply argument in behalf of South Carolina.
Earl Warren: Of course, I beg your pardon. Mr. Attorney General McLeod.
Daniel R. McLeod: Mr. Chief Justice and may it please the Court. In connection with one comment that was made a moment ago with respect to the fixed idea of the date of November 1964 as being the determining date upon which the determination of whether the individual states should come within the scope of the Act. I should like to point out that that date remains a fixed date and that although under the provisions of Sections 5 one of the other sections of the law, a state may by it's action come without the scope of the law if it convinced that the District Court, the District of Columbia appropriately. Nevertheless, that determination will remain national for only a period of five years and at the end of that time, the State is still governed by the date of November 1964, so theoretically --
Byron R. White: [Inaudible] the Section 4 -- the determination under Section 4 is made that there's a literacy test [Inaudible] that's essential for general elections, you say that [Inaudible] no matter what?
Daniel R. McLeod: No. Mr. Justice, I said that the triggering device is activated by the date of November 4, 1964. That date is a fixed date. The only date.
Byron R. White: Unless the state is otherwise subject to adjudication of the Court, the State should come in immediately.
Daniel R. McLeod: That's right. Now --
Byron R. White: And to make the case to be exempted from the --
Daniel R. McLeod: Exactly. Now, if they should purge themselves --
Byron R. White: [Inaudible]
Daniel R. McLeod: By that procedure they do purge themselves they're still in the position of ten years from now, still being subject to the date of November 1964 so that theoretically a 100% of the --
William J. Brennan, Jr.: How does that work? Suppose you want it purged [Inaudible] now under what circumstances that maybe the attorney general go back to see [Inaudible]
Daniel R. McLeod: Any time on -- within his discretion. It's discretionary – they're suspended for three to five years as I recall. The examiners rest within the discretion of the Attorney General sending in of the examiners.
William J. Brennan, Jr.: Well that is --
Daniel R. McLeod: Now --
William J. Brennan, Jr.: [Inaudible]
Daniel R. McLeod: That's right. Now, if --
William J. Brennan, Jr.: Yeah, but what about on passing laws? You've purged for example and you want to pass -- you want to pass a new law and you do. You have to go to the Attorney General and get [Inaudible]
Daniel R. McLeod: I do as long as I have come within the scope of the law. Now, I'm purging myself I mean that I come in and prove in the District Court of Columbia, or the District of Columbia that South Carolina has been free of discrimination that judicial determination exists for a period of five years and no further inquiry can be made for --
William J. Brennan, Jr.: Any suspension of the [Inaudible] five years?
Daniel R. McLeod: The determination of the District Court.
William J. Brennan, Jr.: No, but --
Daniel R. McLeod: So that --
William J. Brennan, Jr.: I thought -- I thought that South Carolina established what's necessary to have the suspension lifted then the suspension of the operation of the devices and so forth, go to the effect.
Daniel R. McLeod: That's right.
William J. Brennan, Jr.: Isn't that in effect thereafter?
Daniel R. McLeod: It will be for a period of five years. At --
William J. Brennan, Jr.: [Inaudible]
Daniel R. McLeod: At the end of that period, the Attorney General of the United States could again invoke the provisions of the law predicated on the vote and the registration in November 1964.
William J. Brennan, Jr.: On what section is that?
Daniel R. McLeod: The -- the -- 4 (a) Your Honor, 4 (a).
William J. Brennan, Jr.: And then what?
Daniel R. McLeod: No such declaratory judgment shall issue with respect to the plaintiff for a period of five years at the entry of a final judgment. So that I say that theoretically, 100% of the persons in South Carolina in 1975 could be registered, you could have a 100% participation in voting and still not be precluded or being invoked again within the scope of the Act. The Attorney General's chief position as I understand, it seems to be prior to this that literacy test --
William J. Brennan, Jr.: Well forgive me if I'm not making -- I don't want to take your time but --
Daniel R. McLeod: Yes sir.
William J. Brennan, Jr.: Well, unfortunately in my opinion I don't find that surprisingly [Inaudible] Other than the denial for declaratory judgment. It was [Inaudible]
Daniel R. McLeod: Right. Now, then as I read, it means that South Carolina is free from adjudication or from the determination it become within the scope of the Act for a period of five years after that determination has been made and the Attorney General cannot bring an action to counter avail that decision.
William J. Brennan, Jr.: [Inaudible]
Daniel R. McLeod: The point I was making is that the only date fixed for the calculation of the 50% bracketing is November 1964. The Attorney General's argument is premised on the fact that literacy test are some [Inaudible] of danger. Danger was the word that he used that if a state has a literacy test, there is danger that they were used in a discriminatory manner and that litigation is too slow and too cumbersome and therefore some more drastic needs should be achieved to get immediate relief. But the point of fact is that the very statements made by the Attorney General of the United States here today contradict and avoid the application of the very procedure that he argues because rather than showing any danger in a number of states that are caught within the blanket indictment that's supported by this Act rather than a number of those states are admitted by their own concessions here in open court, shown to be non-existent for example in North -- in South Carolina and in Virginia. In the complaint brought by South Carolina, it's alleged for example in paragraph 19 that South Carolina denies that the use of test or devices has been followed for the purpose or with the effect of denying the right to vote. The answer of the Attorney General alleges insufficient knowledge of information on which to express a belief as to that allegation. The testimony of Mr. Katzenbach before the Congress with respect to Virginia and with respect to South Carolina both indicated that they had a clean bill of health insofar as discriminatory action by those two states was concerned. As a matter of fact, South Carolina with a literacy requirement has a bigger percentage of registration in Florida and Arkansas which have no literacy requirements and about the same as the state of Texas which had no literacy requirement. The absence of any discrimination is shown moreover by the testimony before the Congress with respect to the fact that although a summary simple procedure provided from a denial of registration to the extent that a special session of the Supreme Court of South Carolina will be called to pass upon and allege improper denial of registration, not one single appeal from a denial of registration has ever been taken in South Carolina. The reasons for the registrars in South Carolina as a matter of fact is not related whatsoever to any alleged discrimination in the administration of it's literacy test as shown by the testimony of the Attorney General before the Congress, the statements of the Attorney General here before this Court today. The reasons for the registrars being in South Carolina are not related to any discrimination on the literacy requirements which as I have stated is not existent in my state. But the reasons are that the registrars was sent there simply because the books of registry, were alleged to be open on insufficient number of days during the month although they were open in general institution in accordance with the commands of the South Carolina statute. The relationship between the number of persons who actually voted in the state election and particularly in my state and any alleged discriminatory action insofar as a literacy test is concerned can be attributed to one thing. The low vote in the general election resulted number one from apathy, the failure of person to exercise the rights of citizenship. As Mr. Robinson stated the main argument related to a number of factors including education, economic standing including even religious affiliations, but apathy is primarily the reason that there is a low vote of participation and in fact a low vote -- voter registration record in South Carolina. The fact is that South Carolina is as Mr. Justice Clark indicated one question, I will refer to this subject in one question, a one party state up until the comparatively recent years. Within the last ten years, the democratic party controlled the entire voting process so that participation in general elections was negligible. We have attached to our brief exhibit one on page 21, an exhibit showing the correlation between the primary voting and the general election voting. I just briefly reciting some of the principle ones over the years since 1924 where 51,000 persons voted in the general election of that year whereas 199,000 persons voted in the primaries. 1942, 23,000 persons voted in the general election, 234,000 persons voted in the primary elections. And in 1960 where the question was pointed to a moment ago, the general election vote exceeded the primary election vote, 387,000 to 304,000. The reason for that is very simple because there was only one contested statewide primary reason and it was during presidential election year when there was a considerable amount of interest expressed in that contrary to President over the past preceding generation. In 1962, 313,000 in the general election, 328,000 in the primary election. Now the reason for the absence of any figures with respect to the primary election of 1964 is because there was no contested statewide election during that year.
Byron R. White: Was there a primary [Inaudible]
Daniel R. McLeod: There was a primary but locally and we do not have the figures collected from each of the 46 counties. It was difficult if not impossible we had attempted to get those --
Byron R. White: [Inaudible] for the general election.
Daniel R. McLeod: I would judge so because the interest in the local election --
Byron R. White: [Inaudible]
Daniel R. McLeod: -- race again more than race where in some instances you'll have running for an office of that nature paying $50 a month, 15 or 19 persons running for a job --
Byron R. White: And you have the congressional races.
Daniel R. McLeod: In 1964, I do not recall sir.
Byron R. White: [Inaudible]
Daniel R. McLeod: I do not recall within the congressional races in it or not.
Tom C. Clark: [Inaudible]
Daniel R. McLeod: The primary --
Tom C. Clark: [Inaudible]
Daniel R. McLeod: What's that Mr. Justice?
Tom C. Clark: [Inaudible] in the primary?
Daniel R. McLeod: The sheriffs?
Tom C. Clark: The sheriffs are elected aren't they?
Daniel R. McLeod: I'm sorry I did not understand you.
Tom C. Clark: Your sheriffs are elected aren't they?
Daniel R. McLeod: Yes sir.
Tom C. Clark: Every two years?
Daniel R. McLeod: Four years.
Tom C. Clark: Four years? Did you have any elections for sheriffs in 1964?
Daniel R. McLeod: Oh yes.
Tom C. Clark: Do you have any opposition?
Daniel R. McLeod: I don't think so on a number. I do not recall offhand. I do not recall the 1964 sheriff's election but based upon my own observation, I'm sure that the races locally [Inaudible] would generate a considerable interest that wouldn't be in all likelihood the total primary votes for 1964 in all likelihood did exceed the 524,000 somewhat who cast votes in the presidential election year.
Tom C. Clark: That's all -- but it's all a one party of state isn't it?
Daniel R. McLeod: That's right.
Tom C. Clark: In your primaries.
Daniel R. McLeod: That's right. The -- it was in any event Mr. Justice Clark --
Tom C. Clark: If the --
Daniel R. McLeod: The -- if I may, I shall proceed rather briefly through these remaining points. The arbitrary nature of this imposition is shown by consideration of one fact and that is that whereas the states of California, Massachusetts, New York, come before this Court and urge this Court to say that illiterates in South Carolina should be permitted to vote. In Massachusetts, my colleague expressed a very tenuous solicitude for the Negro vote there but the Negro who is illiterate in Massachusetts cannot vote whereas it is urged upon this Court to say that the Negro who is illiterate in South Carolina should be permitted to vote. California has the same situation so that if an illiterate, in my state, move to California, he cannot vote. New York has a tenuous solicitude also and they urge upon this Court that the illiterate be required to -- allowed to vote without taking a literacy test, but in New York they're asking in what state was Jean Adams born? And he'll have to know the answer to that before he can be admitted to the election rows. They're asking what is the name of the captain who first raised all glory in the navy? How would you -- will the United States flag be in 1977? In what month did the group of men meet to rewrite the articles of confederation? Who was chosen president of the convention? What kind of suit did he wear?
Byron R. White: Where are you getting this?
Daniel R. McLeod: Those are the literacy test that are imposed, devised by the Board of Regents in the State of New York. That is the literacy test for prior years. The current one is kept intact for security reasons.
Byron R. White: [Inaudible][Laughter]
Daniel R. McLeod: Well, it's possible that a test of that nature might have witted a few well-educated persons in my state, but it is required here. Another fact -- at least if I may emphasize is the names that are placed upon the books by the federal registrars remained on those books. There's no provision for subsequently discovered violation and the time to voted is ten days is not sufficient for us to discover whether or not they have in fact been convicted over disqualifying ground although in fairness the Attorney General has worked informally not compelled to do it. But he has worked informally to removing some but nevertheless if a person should commit a crime in the future there's no assurance and no procedure whereby that person's name can be removed from the roll. Finally, there's one important factor that occurs and that is with respect to the challenges that maybe filed. We have filed the challenges of a number of instances although the registrars if not registered but what I am talking about in 600 persons. Some of those challenges are pending. Now, we would have an opportunity to go before the federal registrar. We would go before the Civil Service Commission and then into the courts. And in the determination of that, the question of whether this person is in fact a resident of South Carolina must be determined. It will be determined by the Civil Service Commission initially. It will be determined ultimately by the federal courts. Now, if they have an election tomorrow and not just the county where the registrars are, if they have an election tomorrow and one of those persons or several of them cast their ballot and they are challenged by candidate possibly at the risk of criminal prosecution by the United States but if they are challenged and if a sufficient number of those votes are challenged to I think the result of the election, the determination of who won that election in that event will rest not in the Courts of South Carolina but in the federal administrative procedures and in the federal courts. So that the same situation in a close election which is not uncommon such as arose in Wisconsin I believe where 50 votes out of a million cast separated and determined who was going to be the governor of that state. Now, if sufficient number of those votes are involved in procedures such as the Attorney General institutes and the determination of who is going to be the governor of Wisconsin or who is going to be the sheriff of Dochester County or who would -- whether the advantage that maybe voted on in the past will be determined not by the courts of South Carolina but by the federal judiciary and that is not appropriate under the Constitution of the State.
Earl Warren: Gentlemen before the court adjourns, I should just like to say that in addition to this being the most important case, one involving wide ramifications and with profound implications in the life of our nation that it is the most unique case. This is unique in at least two respects. First, in spite of the questions involved, both sides have come in to this Court and have done everything they could to accelerate the legal process so that a judgment can be obtained and they have cooperated with each other and with the Court in every respect in order to make our problem more simple. Then in addition to that, I should just like to say that it is unique in the sense that in response to our invitation, more than half of the states of the union have come in to this Court and have made their presentations to the Court on both sides of the questions. I can say that the Court is indebted to hold them and to counsel on both sides of the case for the scholarly, lawyer like manner in which presentations for and written had been made to the Court and the Court in indebted to all who have participated in the case. We'll now adjourn.