dence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate compaign issues, a State might conclude that only those who are literate should exercise the franchise. Cf. Franklin v. Harper, 205 Ga. 779, 55 S.E. 2d 221, appeal dismissed 339 U.S. 946. It was said last century in Massachusetts that a literacy test was designed to insure an "independent and intelligent" exercise of the right of suffrage. Stone v. Smith, 159 Mass. 413-414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.

In Darby v. Daniel, 168 F. Supp. 170, certain persons challenged the provisions of the Mississippi constitution requiring a literacy test. In the course of its opinion, the district court said:

Any consideration of the constitutionality of the challenged portions of this amendment begins with the fundamental fact that, under our constitutional system, the qualification of voters is a matter committed exclusively to the States.

In support of this basic principle of constitutional law, the Court quoted from Pope v. Williams, 1904, 193 U.S. 621, 24, S. Ct. 573, 48 L. Ed. 817, as follows:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States, Minor v. Happersett, 21 Wall. 162, 22 L. Ed. 627. It may not be refused on account of race, color, or previous conditions of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper

Mr. Chairman, my brief discussion today was restricted to the constitutional issue and I have not attempted to go into detail. Authorities have been cited plainly showing that the Congress does not have constitutional authority to enact this legislation but that the States have this sole power. Further, that the States themselves have enacted legislation providing literacy tests and that such tests are a valid exercise of the powers granted to the States.

In my judgment, this legislation should not be considered further by the subcommittee, the full committee nor the Senate. However, if this bill should be taken up on the Senate floor pursuant to the plans. which have been announced, then I expect to discuss many more authorities and special points in alerting Members of the Senate and the Nation to the serious dangers of such legislation.

Should this proposal be approved by the Congress, signed by the President and upheld by the Courts, it would be irrefutable proof that the U.S. Constitution is gone. The passage of this bill would be fair warning to all of the people that any provision of the Constitution could be ignored or "read out" of the Constitution. It would be proof that the President and a majority of the Congress could do what they wish. Thus we would, in effect, no longer have a written Constitution.

Mr. Chairman, I especially thank the chairman of the committee for holding this session.

Senator ERVIN. I invite the Senator's attention to page 3 of S. 2750, where it says—

No person whether acting under the color of law or otherwise shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such person to vote or to vote as they may choose in any Federal election, or subject or attempt to subject any other persons to the deprivation of any State in any Federal election.

I will ask the Senator from Mississippi if he agrees with me that the way this is phrased, "No person whether acting under the color of law or otherwise" it does not indicate a purpose to make it apply to individuals.

Senator STENNIS. I think so. I don't see any other interpretation. Senator ERVIN. And has not the Supreme Court of the United States held on many occasions that the 15th amendment only applies to State actions, and that legislation cannot be adopted under it applying to individuals?

Senator STENNIS. The Senator is correct, that is the recollection of the Senator from Mississippi. That is a good point.

Senator ERVIN. Now, the other bill, S. 480, I would like to invite the Senator's attention to section 2 on page 3, to the phraseology

All citizens of the United States who are otherwise qualified by law to vote in any election by the people in any State, territory, district, county, city, parish, township, school district, municipality, or other territorial division

and so forth.

Does that indicate that the purpose of this bill is to apply to all elections regardless of whether held for Senators and Congressmen for the National Congress, or for State or municipal officers?

Senator STENNIS. It is clear, and unmistakable; it would be allinclusive.

Senator ERVIN. And has not the Supreme Court held in a number of cases that the only authority Congress has to legislate in respect to State elections is under the 15th amendment?

Senator STENNIS. Yes, the Senator is correct.

Senator ERVIN. If I may state a premise, it was admitted by the spokesman for the Civil Rights Commission, Dean Griswold, that this bill was aimed at the Southern States alone.

Senator STENNIS. Yes.

Senator ERVIN. Now, there are only seven Southern States that have a literacy test. I will ask the Senator from Mississippi if the Supreme Court did not hold in the Lassiter case that the literacy test established by the North Carolina Constitution and statute is perfectly valid under the Federal Constitution?

Senator STENNIS. That was the holding of the court, and, as I recall that was one of the recent cases.

Senator ERVIN. And did not the Supreme Court of the United States hold in the case of Williams against Mississippi that the literacy test prescribed by the State of Mississippi is valid under the Constitution of the United States?

Senator STENNIS. That is the holding of the Court undoubtedly, yes, that was the U.S. Supreme Court case decided in 1904.

Senator ERVIN. And then I will ask the Senator if the circuit court of appeals did not hold in the Trudeau case that the literacy test prescribed by Louisiana is perfectly valid under the Federal Consti

tution, and did not the Supreme Court refuse to grant certiorari and review that decision in the Trudeau case?

Senator STENNIS. Yes, the Senator is correct. And that case was decided as recently as 1933.

Senator ERVIN. So that the Federal courts, which possess the judicial power of the United States, have held that the literacy tests prescribed by three of the seven Souhern States are perfectly valid under the Federal Constitution?

Senator STENNIS. Correct.

Senator ERVIN. And now we have these peculiar bills which are proposed to be enacted by the Congress, which possesses none of the judicial power of the United States, reciting in effect that, notwithstanding the decisions of the Supreme Court of the United States and of the circuit court of appeals as to the literacy tests of three of the Southern States, these literacy tests are actually unconstitutional.

Senator STENNIS. That is correct. It goes into the very teeth, as the Senator says, of the Constitution.

Senator ERVIN. Do not these bills represent an effort on the part of the Congress to usurp the judicial power of the United States and to overrule the decisions of the Federal courts, including two decisions of the Supreme Court of the United States?

Senator STENNIS. Unmistakably; it goes into a field of legislation where it has no authority, and in order to get there it usurps the power of the judiciary, too.

Senator ERVIN. So if the writer of the book of Ecclesiastes had postponed writing that book until today he would not be able to say that there is nothing new under the sun, would he?

Senator STENNIS. Well, it is certainly an innovation. This law, as the Senator has said, goes just that far. And I say that if it should be adopted and passed, signed, and upheld that then really the Constitution is gone, and all the set precedents under it.

Senator ERVIN. I will have to say that I agree with the Senator from Mississippi; if these bills are passed by the Congress and signed into law by the President, and their validity is upheld by the Supreme Court of the United States, then I say that the States and the people of the United States have lost the protection of the written Constitution.

Senator STENNIS. We are back where we started.

Senator ERVIN. Only worse. We do not have any Alexander Hamiltons I say, or James Madisons around to set up a new one. Senator STENNIS. It will be just the majority of the Congress and whoever happens to be President of the United States.

Senator ERVIN. Does the Senator think that I am straying very far from the truth when I say that these bills represent an effort to sell constitutional truth for a sorry mess of political pottage?

Senator STENNIS. I think unmistakably, you can't reasonably attribute any other idea behind it, except a pattern of that kind. Senator ERVIN. I think counsel has one or two questions.

Mr. CREECH. Senator Stennis, you have addressed your remarks, sir, primarily to S. 480 and S. 2750.

Senator STENNIS. That is correct, yes.

Mr. CREECH. And, as you have said, there are literacy tests in some 20 or 21 States.

Senator STENNIS. Yes.

Mr. CREECH. Now, S. 2979 would change the voting laws in exactly 45, or 90 percent of all the States.

Now, in this particular measure, sir, as you will note on page 2 of the bill, the State would only be permitted to disfranchise an individual from voting in those instances in which he was unable to meet the reasonable age requirements, reasonable requirements as to length of residence, legal confinement at the time of the election, registration, and conviction of a felony. Sir, in the State of Mississippi, as in a number of other States, there is either a constitutional provision or a State statute which disqualifies idiots or insane persons from voting. Under the provisions of this bill they would be permitted to vote unless they were under legal confinement. Also, if this bill should adopt the criminal code definition of a felony, Mississippi could no longer disqualify certain people for certain acts here unless the imprisonment were, as provided by the Federal statute, for 1 year or

more.

I wonder, sir, where in the Constitution is the power granted to Congress to enact such legislation?

Senator STENNIS. Well, I don't think it exists at all. I have not really studied S. 2979 enough to say where he proposes to get it except through this finding clause that he has here. Perhaps there. I concentrated on S. 2750 because I understood that was the one that was going to be called up, and I think that will be the one that will be before the Senate. And these others may be debated. But you certainly make a good point here about it.

He attempts to bottom his bill on the 14th amendment and on the 15th amendment and some other findings of fact.

Mr. CREECH. The statement has been made that whenever Congress has acted to change voter qualifications in the past, it has always done so by constitutional amendment and not by statute. Would you care to comment on that assertion?

Senator STENNIS. Of course we have had attempts here for years to pass the bill with reference to excluding the poll tax by legislative enactment. I think that has been before the Congress for, well, someone told me almost 30 years.

But it has always been defeated when it was brought into that ground.

Mr. CREECH. What they had specific reference to, sir, was the enactment of the 15th amendment to the Constitution and the 17th amendment to the Constitution.

Senator STENNIS. Yes. Well, it has just lately been recognized that that was the path to vote, and it was necessary to vote. And in Congress each time when the voters' qualifications came up they reiterated the previous provisions of the Constitution of the United States, bringing them up to date.

Senator ERVIN. We will recess until in the morning at 10 o'clock. (Whereupon, at 4:15 p.m., the committee recessed, to reconvene at 10 a.m., Friday, April 6, 1962.)

LITERACY TESTS AND VOTER REQUIREMENTS IN

FEDERAL AND STATE ELECTIONS

FRIDAY, APRIL 6, 1962

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10 a.m., in room 357 Old Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senator Ervin (presiding).

Also present: William A. Creech, chief counsel and staff director; Bernard Waters, minority counsel; and L. P. B. Lipscomb, professional staff member, Judiciary Committee.

Senator ERVIN. The subcommittee will come to order. The first scheduled witness is Andrew J. Biemiller.

The committee is glad to have you here.

STATEMENT OF ANDREW J. BIEMILLER, DIRECTOR, DEPARTMENT OF LEGISLATION, AFL-CIO; ACCOMPANIED BY THOMAS HARRIS, ASSOCIATE GENERAL COUNSEL

Mr. BIEMILLER. Thank you, Mr. Chairman. For the record, my name is Andrew J. Biemiller. I am legislative director for the American Federation of Labor & Congress of Industrial Organizations. I am accompanied by Mr. Thomas E. Harris, associate general counsel for the American Federation of Labor & Congress of Industrial Organizations, who in addition to my statement, has a statement on the constitutionality of the proposed legislation that we desire to submit for the record.

The American Federation of Labor & Congress of Industrial Organizations appreciates very much this opportunity to present to you our views on S. 2750 and other bills to protect the right to vote from arbitrary discrimination by literacy tests or other means.

There are three principal measures dealing with this subject which are before you for consideration. These measures are S. 480, introduced by Senator Jacob Javits and a bipartisan group of other Senators; S. 2750, introduced by Senate Majority Leader Mike Mansfield and Senate Minority Leader Everett Dirksen; and S. 2979, introduced by Senator Kenneth Keating who, like Senator Javits, is also joined by a bipartisan group of other Senators, a number of whom are also sponsors of the Javits bill. All three of these bills have the common objective of qualifying as a voter, notwithstanding existing "literacy." "understanding" or "interpretation," "educational" or similar per