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Attorney General KENNEDY. I don't believe that the Federal Government can establish the qualifications for voting, Senator, and we have not done so in this legislation.
Senator Ervin. But you are trying to nullify the power of the States to prescribe the qualifications for voters by a presumption that, if a person has attended a school as defined in the bill for as much as 6 years, he shall be presumed to be literate?
Attorney General KENNEDY. No, we are not, Senator.
Attorney General KENNEDY. The qualifications that are required in the State are a requirement of literacy.
Under the 15th amendment, the Federal Government has a responsibility to see that all of our citizens have the right to participate in elections. We are not establishing qualifications for voting, we are protecting the right to vote.
Senator ERVIN. You are saying that the court shall not inquire into whether an individual possesses a prescribed qualification for voting, are you not?
Attorney General KENNEDY. Would you repeat that, Senator?
Senator Ervin. Does not this bill provide that there could be no inquiry into the question as to whether one possesses the literacy qualification for voting ?
Attorney General KENNEDY. The bill does not say that, Senator.
Attorney General KENNEDY. Senator, as I have testified here, we found that there is a pattern of discrimination against individuals in certain States, a pattern of discrimination against them because of their race. Individuals have not been permitted to register to vote and participate in elections because of their race. Now, that right is protected under the 15th amendment.
The way that that has been done, the pattern that has been followed, is that an individual is denied the right to register on the grounds that he is illiterate.
A white person comes up and has completed the second or third grade, has trouble writing his name, but the registrar allows him to register and says he is literate.
A Negro comes up, who is a college professor, or might have an advanced degree of some kind, and the same registrar refuses to permit him to register on the grounds that he is illiterate.
Now, we are attempting to deal with that kind of problem. It is a pattern that has been followed and what we are saying is that if a State wants to establish a literacy qualification, there should be a presumption that if an individual has finished and completed the sixth grade, he is literate.
But that can be contested then in the courts.
Senator ERVIN. Yes; but the Government would not have to prove its case at all, would it?
Attorney General KENNEDY. I don't see that that follows, Senator.
Senator Ervin. It does, because all the Government would have to show would be that he had completed the sixth grade. That is all the Government would have to show. Then it would be presumed that he was qualified under the literacy test.
Attorney General KENNEDY. That is correct; then if he is turned down it would be contested in the courts.
All there is here, Senator, is a presumption.
Senator ERVIN. Mr. Attorney General, there are a great many States in this Union that have literacy tests.
Attorney General KENNEDY. That is correct.
Senator ERVIN. And not all of them have been adopted in States which are inhabited by sinful southerners.
Attorney General KENNEDY. That is right.
Senator ERVIN. Do you say election officials in all of these States commit the offenses which you have described ?
Attorney General KENNEDY. Not at all, Senator, last year we contacted States which have literacy tests and most of them feel, Senator, that this type of legislation would not interfere in the slightest in their States.
Some States that have protested are the States where literacy tests have been used to discriminate against Negroes.
Senator Ervin. And you would have Congress adopt a law to govern all men and to deny an inquiry as to the possession of qualifications in cases where there was no allegation that an election official had not acted properly.
Attorney General ŘENNEDY. Senator, you add all those things and that is not correct.
Senator Ervin. I am not adding this presumption. Attorney General KENNEDY. Yes, you are. It is a presumption. Then it can be tested in the court, Senator. It is not automatic. There is a presumption that if you have a literacy test, and the individual concerned has completed the sixth grade, there is a presumption that he is literate.
Senator Ervin. In view of the way this is worded, the presumption is also that an idiot or an insane person who completed the sixth grade is entitled to vote, unless he has been legally judged incompetent.
Attorney General KENNEDY. Senator, there is not going to be any difficulty about that. All the State has to do is turn him down.
Senator Ervin. There would be a difficulty in this if Congress creates the presumption in the language of this bill, because it would apply to them.
Attorney General KENNEDY. That is correct.
Then the State turns him down on the grounds that he is an idiot. That is no problem, Senator.
Senator ERVIN. Let's see what
Attorney General KENNEDY. Senator, so that we are talking about the same situation, could you agree that there has been this pattern of discrimination ? Because, unless you agree with the facts, we are not discussing the same subject.
Senator Ervin. I only know I have not conducted any investigation in that field.
I will tell you what I did find out in 1957. When your predecessor, Mr. Brownell, came down and cited three alleged discriminations against Negroes in 3 precincts out of the 2,000 in my State as a reason for changing the entire election laws of the United States, I inquired into his charges and I found out that the North Carolina Board of Elections had corrected those alleged discriminations by administrative process in time for all the qualified people affected to register and vote in the next primary and next election.
Attorney General KENNEDY. Senator, I am not questioning the situation in North Carolina. But there are situations in other States where individuals are being discriminated against on grounds of their race. I think you have first to examine whether this legislation is needed, examine what the facts are. I would be glad to go into them.
I went, in my statement, into some examples, but I have hundreds of examples. † have a whole book here, Senator, which I would hope you would look at and read and see the kind of practices going on at the present time in the United States.
If I may just explain, I think that first you have to reach the conclusion whether there is a need for this kind of legislation. I think that there is definitely a need for this kind of legislation.
Then you try to adapt legislation which will meet that need, which will remedy the situation. But if we proceed on the basis that there isn't this kind of discrimination, then I think that we are not talking about the same subject.
I would agree with you. I think if there is not the need for this legislation, Senator, then we should not be offering the legislation. Senator ERVIN. But the thing that I
Attorney General KENNEDY. Could I offer the committee this book, which gives some examples ?
The CHAIRMAN. The book will be attached to the testimony.
(The document referred to will be found in the files of the committee.)
Senator Ervin. The thing I object to is for you to ask for new laws which deny people who are obeying the law their rights and their powers because some other people are offending.
What you should do would be to prosecute the people who offend instead of trying to rob the innocent of their rights.
Attorney General KENNEDY. I don't think anybody is being hurt by this, Senator.
All we are doing here in this legislation, as you have explained, is to say that if a State sets up a qualification of literacy, that there should be a presumption that if an individual has completed the sixth grade he is literate.
It does not have to be accepted. It can be contested in the courts, it can be contested all the way up. There is no problem about it.
Nobody is hurt, Senator.
Senator ERVIN. I think law itself is hurt when an artificial presumption is created for the purpose of dispensing with proof.
I think we monkey with justice when we establish an artificial presumption to be used to dispense with proof. That is my honest opinion.
Attorney General KENNEDY. I think it has been established at various times by those who have studied the situation that, if an individual has completed the sixth grade, he should be considered literate. This is not something established by the Department of Justice but by many others.
Senator Ervin. Literacy tests contemplate that inquiry will be made to see if an applicant for voting privileges can read and write.
Attorney General KENNEDY. That is the difficulty, Senator. Who is making that determination? The registrar asks a Negro to read a particular passage and says he doesn't like the particular way he pronounces the words, so he says, “You can't do it.”
Senator Ervin. Why don't you prosecute that registrar?
Attorney General KENNEDY. We have a difficult time in some States having any kind of prosecution. I take you back to Oxford, Miss. We took the strongest cases we had in connection with the disturbances which occurred when James Meredith was registering at the University of Mississippi and presented them to a grand jury.
Not one of those people was convicted in the State of Mississippi. Senator ERVIN. Maybe they didn't deserve it.
Attorney General KENNEDY. I would say this: There have been in the field of voting a number of cases presented to grand juries and we have a very difficult time. I have to make these determinations all over the country. I am just telling you, Senator, and I think you could find out, as I said to you the last time, find out from your colleagues that you have a very, very difficult time in four or five of these States. Not every State in the South, certainly, but in four or five of these States, you have a very difficult time, when it is a contest between a Negro and a white person, for the Negro to get equal justice.
Senator ERVIN. And for that reason you would deprive all of the law-abiding officials of rights that you would have to accord to an Al Capone.
Attorney General KENNEDY. I don't think that is correct, Senator. Senator Ervin. You would deny them trial by jury. Let's see if we can agree on something about this. I call your attention to section 2 of article I of the Constitution: The House of Representatives shall be composed of members chosen every second year by the people of the several States and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.
I also want to read in this connection the 17th amendment to the Constitution :
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for 6 years; and each Senator shall have one vote. The Electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State leigslature.
I will now read you a portion of section 1 of article II: Each State shall appoint in such manner as the legislature thereof may direct, a number of electors, equal to the whole numebr of Senators and Representatives to which the State may be entitled in the Congress.
I will ask you if the Supreme Court has not held in Williams v. Mississippi (170 U.S. 225), Guinn v. United States (238 U.S. 347), and Lassiter v. Northampton Board of County Electors (360 U.S. 45), that these three provisions of the Constitution give the States the power to prescribe the qualifications of voters and that such power includes the power to prescribe literacy tests?
Attorney General KENNEDY. That is correct, Senator. I think there is no question that it is in the power of the States to establish the qualification of its voters and the State does have the authority to establish a literacy test.
I think that as long as we are putting in all of the provisions of the Constitution dealing with this matter, we might also put in the 15th amendment.
Senator ERVIN. Yes; the 15th amendment provides that neither the United States nor a State can deny or abridge the right of a citizen of the United States to vote on account of race, color, or previous condition of servitude. But a State can determine whether any individual of any race is literate, can it not?
Attorney General KENNEDY. That is correct, Senator.
Senator ERVIN. If I may be facetious, I can understand why the President would want to do something about literacy tests. I have never seen any of his writing but his signature. If the rest of his writing is like his signature, I would have to say, as far as his writing is concerned, he is illiterate.
Attorney General KENNEDY. I am afraid it runs in the family, Senator.
Senator ERVIN. Anyway, you ask Congress to create this presumption for use in lieu of determining whether a man possesses the literacy qualifications prescribed by State law.
Attorney General KENNEDY. I am sorry, Senator.
You wish Congress to authorize this presumption in order to avoid the necessity of determining as a question of fact in the first instance whether a man possesses the qualifications prescribed by literacy tests.
Attorney General KENNEDY. No; I think that that necessity still exists. I think the presumption will help, however.
Senator ERVIN. This is a sort of shortcut, isn't it?
Attorney General KENNEDY. It will be of assistance to Negroes voting in the United States.
Senator ERVIN. It will be a shortcut!
Attorney General KENNEDY. A shortcut to them? They have been waiting for 100 years.
Senator ERVIN. Those who advocate so-called civil rights bills keep talking about the Civil War having ended 100 years ago but unfortunately they keep Reconstruction alive with their demands for unwise legislation in the so-called civil rights field.
I now invite your attention to the portion of the bill which begins on line 10 of page 5 and ends with line 16 on page 6. Let me state my understanding of the meaning of this passage. I will appreciate it if you will advise me whether my understanding coincides with yours. I interpret this passage of the bill to mean this:
Whenever the complaint filed by the Attorney General in any proceeding under the Civil Rights Acts of 1957 and 1960 requests the district judge to make a finding as to whether the denial of the right to vote of the original party involved in the case was pursuant to a pattern or practice applying to persons of his race in the election district involved and alleges in addition to such request that fewer than 15 percent of the total number of voting age persons of the same race residing in such election districts are registered, then the district judge, acting either in person or through voting referees selected by him from a panel named by the judicial council of the circuit, forthwith would receive applications for registration to vote from other persons of the same race residing in the election district and pass upon the qualifica