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the suit has begun-when he is turned down, he can then either go to a referee who has been appointed by the judge or go to the judge himself. He attempts to register. The judge then makes a determination, after hearing all of the evidence, as to whether this individual has been denied the right to register on the basis of his color.
There is no determination, Senator, made until after there is a trial.
Senator ERVIN. What I have been trying to bring out is that State power is transferred to Federal officials without a trial being had.
Attorney General KENNEDY. No.
Senator ERVIN. There is no trial at all on this point. You say you are not transferring the power? I will ask you this question: If the Attorney General does not bring a suit under this bill, who would pass on the qualifications of voters ?
Attorney General KENNEDY. Senator, you are not removing his authority. You are not removing a State official from office. You are not taking away his authority until a Federal judge has passed on the question that an individual, a particular individual, has been denied the right to register
Senator ERVIN. Mr. Attorney General-
Attorney General KENNEDY (continuing). On the grounds of his race or color.
Senator KEFAUVER. Would the Senator yield?
Senator KEFAUVER. Mr. Chairman, may I ask that the Senator from North Carolina allow the Attorney General, for purposes of clarification, to explain, step by step, what would happen, what the procedure would be if title I of this bill were to pass, amending the previous voting rights bill ? I think that might be helpful.
Senator ERVIN. I think the Attorney General has stated that to me four or five times.
Senator KEFAUVER. I guess I have not heard.
Senator KEFAUVER. What, step by step, would happen if title I is passed of this bill, supplementing the previous voting rights bill? Just explain the procedure whereby the trial would take place; who has what rights?
Attorney General KENNEDY. Could I go back and make a slightly preliminary statement, as we have talked about the three criminal statutes and the two civil statutes on the books and the question of whether, in view of that, this other legislation is required! That has not been brought out.
There are three criminal statutes on the books and there are these laws of 1957 and 1960. But there are still great problems that we have in dealing with these matters.
Now, I think Senator Ervin mentioned the fact that, in making some of these determinations, it should only take a few hours or a few days on the question of whether somebody is qualified to vote or not.
I have, here, a number of cases that we have brought, just to show the length of time required.
Terrell County, Ga., was brought in December 1958, decided in September 1960.
Macon, Ala., February 1959 to March of 1961. A parish in Louisiana, June 1960 to August 1961. Bullock County, Ala., January 1961 to July 1962. Dallas County, Ala. We brought a case in April of 1961 and it is still going on.
In Clarke County, Miss., we brought a case in July of 1961 and it is still going on.
Forrest County, Miss., we brought a case in July 1961 and it is still not over.
Now, during that period of time, Senator Ervin and other members of the committee, there have been elections and these individuals who allege that they have been discriminated against have lost the opportunity to vote in the election. All we are trying to do in the legislation that we have offered is first to expedite the hearing of those cases, to put them at the head of the docket. That is the first step that we have taken, Senator, to try to have these cases heard right at the beginning, because voting is the most basic right of all. The fact that some of these cases go on for 2, 3, and possibly 4 years, and election after election goes by and people are not permitted to register or to vote, makes it very clear that voting right cases should be put at the head of the docket.
That is the first part.
The second part is what you have mentioned. We have found during this period of time that the literacy tests have been used to discriminate against an individual. Now, we can bring an individual case, but it is long and tedious. In one of these cases, we had to examine 36,000 records and we had to call 180 witnesses.
Now, if you had a presumption, if we had that assistance that an individual who had completed the sixth grade was presumed to be literate, that would help in making a determination in these cases.
We have contacted States that have literacy tests. By and large, except in those States where we have found that there is a pattern of discrimination, no State official who has been charged with the responsibility in this field feels that this legislation would hamper them in what they are attempting to do.
Senator KEFAUVER. Excuse me, Mr. Attorney General. My thought was that we would all have a better understanding if you would outline, step by step, what would happen, what you think procedurally would happen if title I is passed to amend the acts of 1957 and 1960.
Attorney General KENNEDY. I just wanted to make sure that we understood the three major parts. The third part, Senator, is the one we have been discussing here, which refers to counties where there are fewer than 15 percent of the Negroes registered to vote. First we make a determination what those counties are. As
you can see from this book where we have them listed, or most of them listed, the per
centage of Negroes registered in most of these counties is 1, 2, 3, 4, 5 percent, so we are not getting close to the 15 percent.
We first make that determination. We then make an investigation. If the investigation reveals that there is a pattern, that the reason that these Negroes have not been permitted to register is because of their race or anybody else has been turned down in this area because of race or color, then we bring a suit. After the suit is brought, if an individual Negro wants to register, he must go to the local registrar and attempt to register. If he is then turned down and he feels that he has been turned down because of his race, then the Federal judge can hear that case himself or he can appoint a referee to determine the facts.
Now, assume that the referee determines the facts. The referee then decides whether the individual is qualified or not. If he determines that he is qualified and he has to be qualified under State law, the referee applies State law. If he determines that the applicant is qualified, he reports that to the judge.
Senator KEFAUVER. Do the State officials have a right to appear and give their testimony before the referee and the judge ?
Attorney General KENNEDY. That is right. The referee can make the determination. When the judge makes the determination, he gathers all the facts he feels are pertinent.
Senator Ervin. Pardon me for interrupting. I don't believe you answered the Senator. He asked you if the official had the right to appear before the referee. I will ask you as a matter of language if the legislation doesn't say it is an ex parte proceeding and he has not the right.
Attorney General KENNEDY. I think I said that.
Attorney General KENNEDY. The State official then cannot register the individual Negro. It is not up to the referee to register him. He just develops the facts. Then he presents the facts to the judge. Then the judge makes the determination whether the individual should or should not be registered.
Then there is a contest—if the State or the county officials contest the judge's determination, they contest it in a regular court case. If they lose at the district court level, then they can take an appeal to the circuit court and then to the Supreme Court. The individual, therefore, is not registered. Nobody is registered until after there is a determination by the court, when there is a case between the individual and the local officials or the State officials. Nothing happens, therefore, until that occurs.
Senator KEFAUVER. Thank you.
Senator Ervin. Mr. Chairman, I would like to have inserted in the record at this point the provisions of title I of this bill, which appear beginning at line 10 on page 5 and extend through line 16 on page 6.
I am going to say that the only interpretation, in my honest judgment, which can be placed upon this provision is that when the Attorney General makes the request and the allegations specified in his complaint, then the right of an applicant to have his application passed on either by the judge or a voting referee appointed by the judge arises without any trial being had, without any proof being offered, and without any judgment being entered. And the fact that this interpretation is sound appears from the proviso in lines 11, 12, 13, 14, 15, and 16 on page 6, which states:
Provided, That in the event it is determined upon final disposition of the proceeding, including any review, that no pattern or practice of deprivation of any right secured by subsection (a) exists, the order shall thereafter no longer qualify the applicant to vote in any subsequent election.
The only possible interpretation in my judgment that can put on this is that the State election official is denied the power to pass upon the qualifications of the voters and this power is transferred to the court or voting referees appointed by the court upon the mere allegations of the complaint of the Department of Justice. And this proviso shows that the court will try the case after all these things happen. Then if the trial shows that the allegations were not the truth, then the rights of the applicants to vote cease. From my viewpoint, it is absolutely inconsistent with due process of law to deprive State officials of their power without a trial being first had.
I will read this from 12 American Jurisprudence, Constitutional Law, section 573, pages 267 and 268:
The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly procedure adapted to the nature of the case before a tribunal having jurisdiction of the cause.
Under this bill, election officials of the State could be deprived of their powers without any notice, without any opportunity to be heard or to defend the case. Then long afterwards, the court would try the case and see what allegations the Attorney General could prove.
The CHAIRMAN. Which lines did you want in the record ?
Senator ERVIN. I want everything beginning with line 10 on page 5 and ending with line 16 on page 6.
The CHAIRMAN. It is so ordered.
(f) Whenever in any proceeding instituted pursuant to subsection (c) the complaint requests a finding of a pattern on practice pursuant to subsection (e), and such complaint, or a motion filed within twenty days after the effective date of this Act in the case of any proceeding which is pending before a district court on such effective date, (1) is signed by the Attorney General (or in his absence the Acting Attorney General), and (2) alleges that in the affected area fewer than 15 per centum of the total number of voting age persons of the same race as the persons alleged in the complaint to have been discriminated against are registered (or otherwise recorded as qualified to vote), any person resident within the affected area who is of the same race as the persons alleged to have been discriminated against shall be entitled, upon his application therefor, to an order declaring him qualified to vote, upon proof that at any election or elections (1) he is qualified under State law to vote, and (2) he has since the filing of the proceeding under subsection (c) been (A) deprived of or denied under color of law the opportunity to register to vote or otherwise to qualify to vote, or (B) found not qualified to vote by any person acting under color of law. Such order shall be effective as to any Federal or State election held within the longest period for which such applicant could have been registered or otherwise qualified under State law at which the applicant's qualifications would under State law entitle him to vote: Provided, That in the event it is determined upon final disposition of the proceeding, including any review, that no pattern or practce of deprivation of any right secured by subsection (a) exists, the order shall thereafter no longer qualify the applicant to vote in any subsequent election.
Senator ERVIN. This reminds me of the couplet:
I oft have heard of Lydford law
And sit in judgment after.
I am ready to proceed with title 2, which relates to public accommodations.
Senator KEFAUVER. I think the Attorney General ought to have a chance to comment.
Senator KEATING. Would the Senator yield at that point?
Senator ERVIN. Yes; I think the Attorney General should comment.
Attorney General KENNEDY. I really think that what I have said as best I can has answered it.
Senator KEATING. Doesn't the Senator view that as a stay, which we are very familiar with in jurisprudence and which again
Senator ERVIN. What kind of a stay?
Senator KEATING. That the order is in effect unless it is upset on appeal and final disposition of the proceeding
Senator Ervin. I don't see any similarity between these provisions of the bill and a stay. A party obtains a stay after the court has tried the case for the purpose of preventing the execution of the judgment pending his appeal. In such cases, due process of law has been observed and a trial has been had and the party obtaining the stay has appealed from the judgment rendered on the trial.
Senator REATING. No. A stay does not involve a trial. It involves a preliminary determination.
Senator ERVIN. Maybe you are thinking about an injunction. Senator KEATING. Å temporary stay.
Senator Ervin. Temporary injunctions or restraining orders are issued to preserve the status quo and prevent any change in it until a trial can be had on the merits of the case. These provisions of the bill change the status quo entirely without trial and without a hearing.
Do you have any further comments!
Attorney General KENNEDY. I would just say in connection with that: there is not any change until after you have had a hearing.
Senator ERVIN. The change is that the power of the State election officials has been vested by the unproved allegations in the judge and the voting referees.
Attorney General KENNEDY. We have been through it, so I did not see any sense in going into it
further. Senator ERVIN. Let us consider title 2, relating to public accommodations.
Let's see if we can agree on this:
Have you heard any claim made that the public accommodations provisions of this bill can be sustained by any provision of the Constitution other than the 14th amendment or the interstate commerce clause?
Attorney General KENNEDY. Senator, I think the 13th amendment would also have a bearing on it. The 13th, 14th, and the commerce clause.