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Just a day or two before that, the Republican conference committee met to consider civil rights measures, and, at that time, I drafted a statement which, with some modification, was approved by the conference.
On June 11, 6 days later, the President called another conference in the White House, including Democrat and Republican leaders, both House and Senate.
The meeting was devoted to general discussion, in view of the President's hope and intention of submitting to Congress a civil rights message, and a number of legislative proposals on that subject, each as separate measures, or as a single package.
A first draft of these proposals was submitted to me on June 14 by Mr. Marshall, of the Department of Justice, for weekend study, and another conference thereafter of the leaders of both Houses and both parties was held at the White House with the President on Monday morning, June 17. At that time, I stated, speaking for myself, I could accept most of the provisions of the proposed measure, except for title II, dealing with public accommodations and facilities.
There was a general discussion of the matter, but no request was made for and no offer of commitments was made in behalf of either party.
The following day, Tuesday, June 18, in my office in the Capitol, and at the request of the majority leader, Mr. Mansfield, another conference took place, attended by the majority leader, and Senator Humphrey, myself, and Senator Kuchel—I think Senator Hayden was present. Mr. Sorensen, the attaché of the White House, Mr. Mike Manatos, also a White House attaché, and Mr. Schlei, of the Department of Justice.
In the course of that conference, we examined the latest draft of the civil rights administration package, and again I stated that for myself I could accept all except title II, dealing with accommodations and facilities.
It was at that meeting in my office that it was agreed that Senator Manfield, for himself and other Senators, would introduce the administration program. It was agreed, also, that the majority leader and Senator Magnuson and others would introduce title II as a separate bill, and have it referred to the Senate Committee on Commerce.
It was further agreed that the administration package without title II would be introduced by Senator Mansfield and myself, and others.
At the time of its introduction, I stated that I could in good conscience and as the minority leader for my party-I could sponsor all but title II in the administration bill, because the titles relating to voting rights, enforcement of school desegregation cases, the community relations office, the withholding of Federal funds, guarantees, and insurance where segregation was permitted, the extension of the Civil Rights Commission, and other items were clearly in conformity with the pledges made to the Nation by the Republican Party in its platform in 1960.
These, then, are the measures before us:
Senaté 1732, dealing only with discrimination in public accommodations now before the Commerce Committee--and, incidentally I have drafted a voluntary title without injunctive relief as a substitute title II which has also been referred to the Commerce Committee. In
addition, there is 1731, which is the entire administration bill referred to the Judiciary Committee, and Senate 1750, introduced by Senator Mansfield and myself and others, which contains all except title II of the administration bill, and which also was referred to the Senate Judiciary Committee.
That, Mr. Chairman, is the chronology of the conferences by which this package was finally submitted, and how two of these bills came to the Judiciary Committee; and the third one; namely, title II, and my substitute for title II went to the Committee on Commerce.
Senator KEFAUVER. Mr. Chairman, may I again raise this question of the matter of procedure. I know Senator Ervin's statement will be very helpful and interesting and persuasive. But shouldn't the Cabinet member proposing the legislation present his viewpoint, and let others
The CHAIRMAN. We have always had the rule that the members of the committee had the first right to make a statement. That was understood by the Attorney General in advance.
Senator Ervin said he wanted to make a statement. The Attorney General has gone back to his office.
Senator KEFAUVER. Well, Senator Ervin's statement is not printed. I see the Attorney General's statement is put out for release. I wonder if he could first present his position, and others present their position, which would be more meaningful.
The CHAIRMAN, I believe the committee members have certain rights. As far as the Chair is concerned, they will be respected. Senator Dodd, I understand, desired to make a statement. The Attorney General understood all that in advance. Proceed.
Senator ERVIN. Mr. Chairman, I am somewhat reluctant not to conform my action to the wishes of my good friend, the senior Senator from Tennessee. But I happen to represent a viewpoint in respect to the administration's so-called civil rights proposals which has not yet been presented.
The Attorney General has presented his viewpoint before the House committee. Moreover, it has been well advertised over the Nation. And I think it is about time that a presentation be made to show that the Attorney General is not altogether free from error in his views with respect to these bills.
Senator KEFAUVER. Will the Senator yield?
Senator KEFAUVER. I want to make it clear to the Senator from North Carolina that I am anxious to hear his statement, and there is no intention on my part to not have him make his full statement.
And, looking over the Attorney General's statement, it seems to be somewhat different in some respects to the statement he had made before other committees.
We make our own record in this committee. I thought as a matter of orderly procedure, particularly since it had been announced that way, that the Attorney General makes his statement, and then those of us who had any affirmative or critical remarks
Senator ERVIN. Yes. I can assure the Senator I am going to attempt to proceed in an orderly fashion in presenting my views in respect to this bill.
This bill could be appropriately divided into seven bills. I want to discuss first the provisions of it relating to voting rights.
I have told this story before, but it bears repeating here, because it illustrates a truth.
I don't know of anything the Department of Justice needs less than a new law relating to voting rights. There are sufficient statutes already on the books to secure to every one all of his rights under the Constitution and laws of the United States. Among them are a multitude of statutes relating to voting rights now at the disposal of the Department of Justice. There is no need for any additional legislation in this field.
When I hear the Department of Justice say it needs a new statute to enable it to enforce voting rights, I am reminded of the story about the time that John and Mary were courting. They were sitting on a bench in the moonlight in an area which was permeated by the fragrance of roses. It was a situation which would excite anyone to romance. John said to Mary, "Mary, if you wasn't what you is, what would you like to be?”
She said, "John, I would like to be an American beauty rose."
And then she turned the question on John and said, “John, if you were not what you is, what would you like to be ?"
He said, "I would like to be an octopus."
John said, “An octopus is some kind of an animal or fish or something that has a thousand arms."
Mary said, “Well, John, if you were an octopus and had a thousand arms, what would you do with them?!
John said, "I would put every one of them around you.
Mary said, “Go away, John, you ain't using the two arms you've already got.”
If anybody is being wrongfully denied their right to vote anywhere in the United States, it is because the Department of Justice is not using the laws it already has in this field.
I will call attention first to section 242 of title XVIII of the United States Code. This statute bears the heading, "Deprivation of Rights Under Color of Law," and reads as follows:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or be imprisoned not more than one year, or both.
The courts have held under this statute time and time again that any State election official who willfully denies to any qualified citizen of any race the right to vote is subject to be sent to prison for as much as 1 year and fined as much as $1,000. If there is any public official anywhere in the United States who is willfully denying to any qualified citizen of any race the right to register and vote, the Department of Justice ought to prosecute him under this statute instead of asking for new laws.
In addition to this statute, there is a section 241 of title XVIII of the United States Code which reads as follows:
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured
They shall be fined not more than $5,000 or imprisoned not more than 10 years, or both.
Under this statute any election official who conspires with another person to deny any man of any race his right to register and vote, provided he is qualified, is punishable by imprisonment for 10 years and a fine of $5,000.
As a consequence, if any election officer has offended in these fields, the Department of Justice has these two criminal statutes that can be applied.
There is another statute which is codified in title XVIII, section 371. This statute provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner, or for any purpose, and one or more of such persons do any act to affect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
If any public official conspires with any other person to violate the first statute I read, section 242, title XVIII, then he can be punished for conspiracy under section 371 of title XVIII. I might say to the Senator from Tennessee that the court of appeals for his circuit has recently so held, in a case which originated in Nashville, Tenn., Brown v. U.S. (204 F. 2d. 247).
In addition to these statutes, there is another statute which gives to any qualified person who is wrongfully denied the right to vote, the right to recover damages against the offending election official, and anybody who conspires with him to accomplish that result or to bring a suit for preventive relief and obtain an injunction in advance if he is threatened with a denial of his right to vote. That statute is section 1983 of title 42 of the United States Code.
In addition to that, there is another statute, directed principally against a conspiracy to deny anyone any right under the Constitution or laws of the United States, and that is subsection 3 of section 1985 of title 42 of the United States Code.
This being so, there are five different statutes that can be invoked, three of them by the Attorney General, and two of them by the individual wronged, to vindicate not only the right to vote, but any other right such individual has under the Constitution or laws of the United States.
In addition to that, the Attorney General has another law at his disposal, which is Public Law 85–315, and which is commonly called the Civil Rights Act of 1957.
Under that statute, the Attorney General has the power to bring a proceeding in equity to prevent the denial of the right to vote to any person who is qualified to vote anywhere in the United States. This is a proceeding in equity which is triable by the Federal district judge without a jury. And, notwithstanding all allegations to the contrary, which might be made, it would not take a Federal judge trying a case without jury under this statute more than a day to determine whether anyone has been wrongfully denied the right to vote on account of his race or color, and to issue an order under the statute for his registration.
This is the fourth statute that is available to the Attorney General in the voting rights field.
Now, I call attention to the fifth one.
That is Public Law 86-449, which is known as the Civil Rights Act of 1960. That is quite an unusual statute. It provides that if a district judge has tried a case under the Civil Rights Act of 1957, and found that any person has been denied the right to vote on account of his race or color, then the court, upon application of the Attorney General in that same case, can proceed to ascertain as a matter of fact whether such denial was pursuant to a pattern of discrimination against men of the original party's race. This question is also triable by the judge without a jury.
This question is presented by a motion in the cause, and the judge, by issuing an order to show cause, can limit the time for the hearing upon that question as he sees fit.
The Civil Rights Act of 1960 provides that in case the judge in a trial without a jury of the question as to the existence of a pattern finds that the original party was denied the right to register or vote on account of his race or color, pursuant to a pattern, the judge has two courses of action he can take. He can either sit himself and receive applications from persons of the same race in the same election district, and pass upon the question, as a matter of fact, without a jury as to whether such applicants are qualified to vote and have been wrongfully denied the right to register to vote, or he can delegate that åuthority to voting referees, and these voting referees can pass on the matter, and make their findings. These voting referees are empowered by the Civil Rights Act of 1960 to do something which I don't think has ever been authorized by the Congress of the United States before.
It provides that these voting referees can conduct the hearings on the question of an applicant's qualifications, and their being denied the right to register to vote in ex parte proceedings. This is the only case where you try a case against an election official without allowing him to be present or to be represented by counsel at the taking of the testimony on which the case is to be decided.
Then the voting referee makes his findings. And the election official is not even granted a hearing unless he can show by affidavits to the satisfaction of the judge that he has a meritorious defense.
In other words, the court passes on the question of whether the election official has a meritorious defense before hearing his evidence, except in the form of affidavit.
This statute goes ahead and says that if a man's application is filed too late to be heard before the election, then he can be allowed by the district judge to vote provisionally. Under that statute, there is suf