such a State, no person shall be denied the right to vote in any election in such State or separate subdivision because of his failure to comply with a test or device. Inclusion of a separate subdivision of a State which is not totally subject to section 3(a) does not, of course, bring the whole State within the section.

I shall present at the end of my discussion of the bill the information we have as to the areas to be affected by determinations under section 3(a).

The prohibition against tests may be ended in an affected area after it has been free of racial discrimination in the election process for 10 years, as found, upon its petition, by a three-judge court in the District of Columbia. This finding will also terminate the examiner procedure provided for in the bill.

However, the court may not make such a finding as to any State or subdivision for 10 years after the entry of a final judgment, whether entered before or after passage of the bill, determining that denials of the right to vote by reason of race or color have occurred anywhere within such State or subdivision.

Because it is now beyond question that recalcitrance and intransigence on the part of State and local officials can defeat the operation of the most unequivocal civil rights legislation, the bill, in section 4, provides for the appointment of examiners by the Civil Service Commission to carry out registration functions in a political subdivision in which the tests have been suspended pursuant to section 3 (a).

The suspension of tests would not automatically result in the appointment of examiners. For that to happen the Attorney General must certify to the Civil Service Commission under section 4(a) either (1) that he has received 20 or more meritorious complaints from the residents of a subdivision affected by the determination referred to in section 3 (a) alleging denial of the right to vote on account of race or color, or (2) that in his judgment the appointment of examiners is necessary to enforce the guarantees of the 15th amendment in such a political subdivision. Of course, one (but not the only) situation that would fall within section 4(a) (2) would be the continued use of tests and devices by a local registrar after section 3 (a) takes effect.

It can be readily seen that the bill places a premium on compliance with section 3(a) and the adoption by State registrars of fair procedures. All that State registration officials need do to avoid the appointment of examiners is to comply with section 3(a) and not discriminate against Negroes.

After the certification by the Attorney General, the Commission is required to appoint as many examiners as necessary to examine applicants in such area concerning their qualifications to vote. Any person found qualified to vote is to be placed on a list of eligible voters for transmittal to the appropriate local election officials.

Any person whose name appears on the list must be allowed to vote in any subsequent election until such officials are notified that he has been removed from the list as the result of a successful challenge, a failure to vote for 3 consecutive years, or some other legal ground for loss of eligibility to vote.

The bill provides a procedure for the challenge of persons listed by the examiners, including a hearing by an independent hearing offi

cer and judicial review. A challenged person would be allowed to vote pending final action on the challenge.

The times, places, and procedures for application and listing, and for removal from the eligibility list, are to be prescribed by the Civi Service Commission. The Commission, after consultation with the Attorney General, will instruct examiners as to the qualifications applicants must possess. The principal qualifications will be age citizenship, and residence, and obviously will not include those sus pended by the operation of section 3.

If the State imposes a poll tax as a qualification for voting, the Federal examiner is to accept payment and remit it to the appropriate State official. State requirements for payment of cumulative pol taxes for previous years would not be recognized.

Civil injunctive remedies and criminal penalties are specified for violation of various provisions of the bill. Among these provisions is one requiring that no person, whether a State official or otherwise shall fail or refuse to permit a person whose name appears on the examiner's list to vote, or refuse to count his ballot, or intimidate threaten, or coerce," a person for voting or attempting to vote under the act.

An individual who violates this or other prohibitions of the bill may be fined up to $5,000 or imprisoned up to 5 years, or both.

It should be noted also that a person harmed by such acts of intimidation by State officials may also sue for damages under 42 U.S.C. 1983, a statute which was enacted in 1871. That statute provides for private civil suits against State officers who subject persons to deprivation of any rights, privileges, and immunities secured by the Constitution and laws of the United States. Private individuals who act in concert with State officers could also be sued for damages under that statute, Baldwin v. Morgan (251 F. 2d 780 (C.A. 5, 1958)).

In our view, section 7 of the bill, which prohibits intimidation of persons voting or attempting to vote under the bill represents a substantial improvement over 42 U.S.C. 1971 (b), which now prohibits voting intimidation. Under section 7 no subjective "purpose" need be shown, in either civil or criminal proceedings, in order to prove intimidation under the proposed bill. Rather, defendants would be deemed to intend the natural consequences of their acts. This vari ance from the language of section 1971 (b) is intended to avoid the imposition on the Government of the very onerous burden of proof of "purpose" which some district courts have wrongfully, I believe— required under the present law.

The bill provides that a person on an eligibility list may allege to an examiner within 24 hours after closing of the polls in an election that he was not permitted to vote, or that his vote was not counted. The examiner, if he believes the allegation well founded, would notify the U.S. attorney, who may apply to the district court for an order enjoining certification of the results of the election.

The court would be required to issue such an order pending a hearing. If it finds the charge to be true, the court would provide for the casting or counting of ballots and require their inclusion in the total vote before any candidate may be deemed elected.

The examiner procedure would be terminated in any subdivision

that all persons listed have been placed on the subdivision's registration rolls and that there is no longer reasonable cause to believe that persons will be denied the right to vote in such subdivision on account of race or color.

The bill also contains a provision dealing with the problem of attempts by States within its scope to change present voting qualifications. No State or subdivision for which determinations have been made under section 3(a) will be able to enforce any law imposing qualifications or procedures for voting different from those in force on November 1, 1964, until it obtains a declaratory judgment in the District Court for the District of Columbia that such qualifications or procedures will not have the effect of denying or abridging rights guaranteed by the 15th amendment.

I turn now to the information we have regarding the impact of section 3(a). Tests and devices would-according to our best present information-be prohibited in Louisiana, Mississippi, Alabama, Georgia, South Carolina, Virginia, and Alaska, 34 counties in North Caroina, and 1 county in Arizona, 1 in Maine, and 1 in Idaho. Elsewhere, the tests and devices would remain valid, and similarly the registration system would remain exclusively in the control of State officials.

The premise of section 3 (a), as I have said, is that the coincidence of low electoral participation and the use of tests and devices results from racial discrimination in the administration of the tests and devices. That this premise is generally valid is demonstrated by the fact that of the six Southern States in which tests and devices would be banned statewide by section 3(a), voting discrimination has unquestionably been widespread in all but South Carolina and Virginia, and other forms of racial discrimination, suggestive of voting disrimination, are general in both of those States.

The latter suggestion applies as well to North Carolina, where 34 ounties are reached by section 3 (a) and where, indeed, in at least one instance a Federal court has acted to correct registration practices which impeded Negro registration.

In view of the premise for section 3(a), Congress may give sufficient territorial scope to the section to provide a workable and objective system for the enforcement of the 15th amendment where it is being violated. Those jurisdictions placed within its scope which have not engaged in violations of the 15th amendment-the States and Counties affected by the formula in which it may be doubted that racial discrimination has been practiced-need only demonstrate in court that they have not practiced discrimination within the 10 immediately preceding years in order to lift the ban of section 3(a) from their registration systems.

That is, section 3(a) in reality reaches on a long-term basis only those areas where racial discrimination in voting in fact exists. In its 1st section, the 15th amendment explicitly provides, without equivocation, that "the right to vote shall not be denied or abridged *** by any State on account of race or color." And its second section is no ess straight forward in declaring that "the Congress shall have power to enforce this article by appropriate legislation." The sole question, then, is whether the means embodied in this bill are appropriate or as Chief Justice Marshall put it, "plainly adapted to that end."

There is no question but that this bill was adapted to the end of eliminating racial discrimination in voting.

Senator HRUSKA. Would the witness yield?

I cannot follow him on the manuscript I have. This is material apparently which is extemporaneous to my copy of the statement. Attorney General KATZENBACH. There is in the statement a quite long section on constitutionality of the bill and I was simply summarizing that in a couple of paragraphs.

My statement has already gone a long time.

The CHAIRMAN. That manuscript there is not part of what you are reading?

Attorney General KATZENBACH. Yes; I am sorry, I was unaware of that and I realize that I had asked them to prepare a summary of that and I was reading from that.

The CHAIRMAN. Will you make copies available to the committee Attorney General KATZENBACH. It is just two paragraphs and it summarizes that.

Senator ERVIN. Mr. Chairman, this is one of the most important questions in this bill. I do not like to tell the Attorney General how to perform his duty, but I think this committee can bear some elaboration and elucidation on this point. I would be glad to lend the Attorney General my copy of this.

Attorney General KATZENBACH. I have a copy of the whole thing and I will read it, Mr. Chairman.

Senator JAVITS. Mr. Chairman, a parliamentary inquiry: Is the witness compelled to testify to what he issues in an advance statement, or can he testify as he chooses?

The CHAIRMAN. Frankly, under the rules-we do not have a strict interpretation, but he is supposed to file a statement a day in advance. Of course, any member of the committee can go further than the statement in examining the witness. But we have never enforced that rule. Senator JAVITS. I thank the Chair.

The CHAIRMAN. Senator Ervin has objected and wants him to read the entire statement. He is well within his rights.

Senator ERVIN. Mr. Chairman, the reason for that, I think the bill is unconstitutional in certain respects and I want to give the Attorney General a chance to relieve my mind of that false impression if he can do so.

Attorney General KATZENBACH. I appreciate that opportunity. Let me try, Senator.

Mr. Chairman, I will go to the text.

The CHAIRMAN. I do not understand yet. Were you skipping from place to place or did you have a memorandum there which we do not have? Which is correct?

Attorney General KATZENBACH. What I have here, Mr. Chairman. is a two-paragraph summary of the section which appears in the statement entitled "Constitutionality."

The CHAIRMAN. But Senator Ervin has requested that you read the statement and I think that is what should be done.

Attorney General KATZENBACH. I apologize, Mr. Chairman. I will do that.

I have shown why this legislation is necessary and have explained how it would work. It remains to explain why we think it is consti

Far from impinging on constitutional rights—in purpose and effect, the bill implements the explicit command of the 15th amendment that

Senator ERVIN. What page is that on?

Attorney General KATZENBACH. Page 12. [Continues reading:]

The right

to vote shall not be denied or abridged *** by any State on account of race [or] color.

The means chosen to achieve that end are appropriate, indeed, necessary. Nothing more is required.

Let me pursue the matter a little. This is not a case where the Congress would be invoking some "inherent," but unexpressed, power. The Constitution itself expressly says in section 2 of the 15th article of amendment:

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

Here, then, we draw on one of the powers expressly delegated by the people and by the States to the National Legislature. In this instance, it is the power to eradicate color discrimination affecting the right to vote. Accordingly, as Chief Justice Marshall said in Gibbons v. Ogden (9 Wheat. 1, 196), with respect to another express power-the power to regulate interstate commerce

[T]his power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.

That was the constitutional rule in 1824 when those words were first spoken by Chief Justice Marshall. It remains the constitutional rule today: those same words were repeated by Mr. Justice Clark for a unanimous Court just recently in sustaining the public accommodation provisions of the Civil Rights Act of 1964. See Atlanta Motel v. United States (379 U.S. 241, 255).

This is not a case where the subject matter has been exclusively reserved to another branch of Government-to the executive or the courts. The 15th amendment leaves no doubt about the propriety of legislative action. And, of course, both immediately after the passage of the 15th amendment, and more recently, the Congress has acted to implement the right. See the very comprehensive act of May 31, 1870 (16 Stat. 140), and the voting provisions of the Civil Rights Act of 1957, 1960, and 1964.

Some of the early laws were voided as too broad and others were later repealed. But the Supreme Court has never voided a statute limited to enforcement of the 15th amendment's prohibition against discrimination in voting. On the contrary, in the old cases of United States v. Reese (92 U.S. 214, 218) and James v. Bowman (190 U.S. 127, 138-139), the Supreme Court, while invalidating certain statutory provisions, expressly pointed to the power of Congress to protect the right to "exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provisions of the second section of the amendment, Congress may enforce by 'appropriate legislation.'" And with respect to congressional elections, shortly after the adoption of the 15th amendment, the Court sustained a system of Federal supervisors for registration and voting not dissimilar to the system proposed here. See Ex parte Siebold (100 U.S. 371), United States