The legislation which this subcommittee is considering is long overdue and should be given favorable action by the Congress at the earliest possible date.

Thank you very much for the chance to appear here today, Mr. Chairman.

As I said, Mr. Harris, our associate counsel who is with me, is prepared to discuss our views on the constitutionality of the proposed legislation.

Senator ERVIN. I have to take issue with you as to the State of North Carolina. The spokesman for the Civil Rights Commission was here the other day, and he said if the situation everywhere were like it is in North Carolina, there would be no justification for passing these bills.

We have a Negro population of 1,116,000, and there have only been 59 complaints filed in the State of North Carolina.

Mr. BIEMILLER. Mr. Chairman, I shall be very happy to check that matter back. You note the statement comes from a statement prepared for our convention. And if we have offended your State unfairly, I apologize.

Senator ERVIN. We are used to being criticized. We have been for a 100 years.

As a matter of fact, in 1957 the then Attorney General of the United States, Mr. Brownell, appeared before this subcommittee and picked out one precinct in Greene County, N.C., one precinct in Chatham County, N.C., and one precinct in Brunswick County-that is three precincts out of 2,200 in North Carolina and used them as a justification for demanding the overhaul of all election laws in the United States. And, low and behold, when I called the State board of elections, I found out that each one of those complaints had been called to the attention of the State board of elections by the field secretary of the NAACP, and every one of them was corrected in time for the persons effected to register and vote in the primary, within less than a month after the complaints were filed. So I think we have a pretty good record down there considering the fact that we have a very active NAACP chapter. We have a very active State advisory commission, headed by a person who is very diligent, and comprising within its membership the head of the North Carolina Life Insurance Co., which is the largest Negro-owned and controlled financial institution on this earth, so I am told.

Mr. BIEMILLER. I am delighted to hear this is the case.

Senator ERVIN. Also I may say we have in North Carolina many fine Negro educators. We have aldermen of that race in WinstonSalem, Durham, Greensboro, and have had in the past in Southern Pines.

Illinois, Indiana, Ohio, Pennsylvania, New Jersey, New York, and the six remaining States have about 112 million or 2 million more Negro inhabitants than North Carolina, and North Carolina employs about 1,000 or 1,100 more Negroes as teachers and principals of schools than all of those States combined. So I think we do very well in North Carolina.

Mr. BIEMILLER. I repeat, if I have unfairly mentioned your State I apologize.

Senator ERVIN. I told Dean Griswold that you cannot always rely on the figures. I said "The nonwhite population in the United States is about 10 percent or a little more," and I asked him "What is the nonwhite registration in Harvard Law School, how does it compare with the nonwhite population of the United States." He said he would have to admit it is very low. And I said, "Well now you can't infer from those figures that Harvard Law School is discriminating on the basis of color." He said "No." And I agree with him. Do you have any questions?

Mr. CREECH. Thank you, Mr. Chairman.

Mr. Biemiller, just pursuing for a moment the question the chairman just asked you, on page 1 of your statement you say—

It is clear that literacy tests are frequently used in many areas of the country to deny the right to vote to many citizens, based on their race or color.

Sir, is the statement on page 8-is that the index for the areas of the country which you have in mind?

Mr. BIEMILLER. Page 8?

Mr. CREECH. Yes, sir. On page 8 you are quoting from your executive council report, the 1961 convention report.

Mr. BIEMILLER. And that in turn is quoting from the report of the U.S. Civil Rights Commission.

Mr. CREECH. Does your view differ from that report, sir, or did you have other areas of the country in mind?

You have said, sir, without identifying the areas of the country, on page 1 of your statement, that it is clear that such tests, meaning literacy tests

Are frequently used in many areas of the country to deny the right to vote to many citizens based on their race or color.

I should like to inquire, sir, which areas of the country you have in mind.

Mr. BIEMILLER. The areas mentioned in the statement taken from the Civil Rights Commission, on page 8.

Mr. CREECH. Thank your, sir.

Now, sir, also on page 1 of your statement you say that all three of the bills have the common objective of qualifying as a voter, notwithstanding tests, any otherwise qualified person who has completed at least six grades of primary schooling.

Is it your opinion, sir, that Congress has the authority to qualify any person for the voting right?

Mr. BIEMILLER. May I refer that to our associate general counsel, Mr. Harris.

Mr. HARRIS. I have here, sir, a statement which we would like to submit for the record which elaborates in much more detail on the constitutional issues.

As the chairman pleases, I would be glad either simply to submit this for the transcript or go over it orally and attempt to summarize

it.

(The statement of Mr. Harris follows:)

STATEMENT BY THOMAS E. HARRIS, ASSOCIATE GENERAL COUNSEL, AFL-CIO, ON S. 2750 AND OTHER BILLS TO PROTECT THE RIGHT TO VOTE IN FEDERAL ELECTIONS FROM ARBITRARY DISCRIMINATION BY LITERACY TESTS OR OTHER MEANS My name is Thomas E. Harris. I am associate general counsel of the AFLCIO, and appear here on its behalf.

My statement will deal only with the constitutionality of S. 2750 and other similar bills to protect the right to vote in Federal elections. Mr. Biemiller's statement deals with the merits of these proposals.

Let us consider first the Constitution as it stood when it left the hands of the founding fathers, prior to any amendment.

Article I, section 2, provides:

"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."

(This language as to "Qualifications requisite for Electors" was subsequently made applicable by the 17th amendment also to the election of Senators.) Article I, section 4, states:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

Article I, section 8, clause 18, provides:

"The Congress shall have Power * * *

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." A basic issue which was formerly much mooted was whether a voter possessing the qualifications laid down by a State for voting for the lower house of the State legislature derived his right to vote for Federal Representatives (under article I, section 2) and Senators (under the 17th amendment), solely from the State, so that only the State might protect the exercise of that right, or whether it was a Federal right derived from the Constitution, the exercise of which might be protected by Congress. However, this question was long since answered by the Supreme Court, which has affirmed in the broadest terms the power of Congress to protect the exercise of the franchise in electionsincluding primaries for Senator and Representative. United States v. Classic (313 U.S. 299). The Civil Rights Act of 1957 and the 1960 amendments to that act rest, in part at least, on that doctrine.

It would appear that under the original Constitution Congress had plenary power to regulate the conduct of elections for the House of Representatives, and, after the 17th amendment, the Senate. However, that power was limited in two respects: (1) It applied only to congressional elections; not even reaching elections for President; (2) the States were empowered to prescribe the qualifications for elections, and this power was subject to no explicit, and possibly, though not certainly, to no implicit, restitution.

Let us consider now what changes were brought about by the "reconstruction" amendments.

In the first place, the due process and equal protection clauses of section 1 of the 14th amendment now operate as restrictions upon State laws prescribing the qualifications for voters. Section 1 of the 14th amendment has the same application to State action prescribing the "Qualifications requisite for Electors" as to any other State action.

Much of the argumentation against these bills seems to ignore the adoption of the "reconstruction" amendments, and to rest on the assumption that the power of the States to prescribe the qualifications of voters is absolute. The slightest reflection, however, should demonstrate that this is not so. If, for example, a State should enact a law that only persons with red hair may vote, there can be no room for doubt that the Supreme Court would hold the law

invalid under section 1 of the 14th amendment. Only a few days ago the Court ruled that the apportionment of seats in a State legislature is subject to challenge under the equal protection clause. Since the due process and equal protection clauses apply to all State action, they have equal application to all State laws or rules prescribing voter qualifications, regardless of whether the elections concern Federal, State, or local office.

That the Supreme Court is correct in holding that the general guarantees of section 1 of the 14th amendment were specifically intended to safeguard the right to vote is shown by section 2 of the 14th amendment, which provides that the congressional representation of a State shall be reduced in the proportion that it denies the right to vote to any of the male inhabitants of the State, "except for participation in rebellion, or other crime." Further, this sanction attaches not only to the right to vote at elections for Federal office but for "the Executive and Judicial officers of a State or the members of the Legislature thereof."

This constitutional directive has never been implemented, and some Members of the Congress may regard its provisions as extreme. Its meaning, however, is unmistakably plain, and if there are Members of the Congress who support the objectives of the bills before the committee, but are troubled (as I think they need not be) by doubts as to the bills' constitutionality, there is available, under section 2 of the 14th amendment, a powerful sanction which Congress may, if it wishes, employ to eliminate State restrictions on the franchise.

The 15th amendment to the Constitution is explicitly and exclusively directed to the protection of voting rights. Section 1 states that the right of citizens of the United States shall not be denied or abridged by any State on account of race, color, or previous condition of servitude." Section 5 of the 14th amendment and section 2 of the 15th amendment each provides that Congress shall have power to enforce that amendment by appropriate legislation. The 15th amendment, like the 14th, applies to all elections, not simply to elections for Federal office.

Finally, the 19th amendment, in form closely patterned after the 15th, declares that the right to vote shall not be abridged on account of sex.

Thus the amendments have greatly broadened the powers Congress originally had under the Constitution to regulate elections. While Congress originally had power to regulate elections for Congress, it had no power to regulate elections for State office or for the Presidency. That has been changed. Congress now has power to regulate State and Presidential elections not only to insure that no one be denied the right to vote on account of race, color, or sex, but that no one be denied the franchise by any State-prescribed voting qualifications violative of due process or equal protection. Congress can even, if it wishes, enforce universal suffrage, and in State as well as Federal elections, though only on penalty of curtailment of a State's representation in the House of Representatives.

What conclusions, then, are to be reached as to the constitutional validity of the bills before the committee?

If they are passed, their constitutional validity will, it appears to me, be sustained by the Court under sections 1 and 5 of the 14th amendment if the Court decides that Congress had a reasonable basis for concluding that literacy tests (or other similar tests) were being used to deprive voters of due process or of the equal protection of the laws. In other words, if the Court decides that the Congress had a rational basis for concluding that literacy tests were being used as a cover for impermissible discriminations with respect to voting, it will uphold the legislation. Similarly, the Court will uphold the legislation under the 15th amendment, if it decides that Congress had ground for believing that literacy tests were being used as a cover for denying persons the right to vote on account of race or color.

I gather that the draftsmen of these bills reached pretty much the same conclusions I have expressed with regard to the constitutional problems. Thus I note that S. 2750 (Mansfield) recites in section 1 (c) that Congress finds "that many persons have been subjected to arbitrary and unreasonable voting restrictions on account of their race or color" and "that literacy tests and other performance examinations have been used extensively to effect arbitrary and unreasonable denials of the right to vote * **

One argument that has been made against the validity of these bills is that they undertake to vest in Congress judicial power which is vested in the courts by article 3 of the Constitution, and what I take is in effect the same

argument, that "these measures undertake to legislate the truth of facts" and thus usurp the judicial function in violation of the fifth amendment.

These arguments misconceive the respective functions of Congress and the judiciary. The constitutionality of a vast amount of legislation turns on whether Congress has rational basis for deeming it necessary or desirable. In recognition of this it has become quite customary during the last 30 or 40 years for major legislation to begin with recitals of findings and policies which are in part factual finding or conclusions. One purpose of these recitals is to advise the courts as to why Congress deemed the legislation necessary or desirable. Thus all three of the major labor bills enacted by Congress in the last 30 years, the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act, begin with recitals of findings and policies.

When the constitutionality of legislation is challenged, however, the courts do not treat these findings as conclusive. They merely state the theory of the Congress as to why the legislation is necessary or desirable. These findings may facilitate the task of the courts, but cannot eliminate it. For example, in NLRB v. Jones & Laughlin Steel Corp. (301 U.S. 1), the opinion of the Court begins by setting forth in a footnote the "findings and policies" recited in the Wagner Act, but the opinion does not treat these recitals of fact as conclusive. Instead, the opinion reviews the history of industrial relations in this country, drawing from published materials from congressional and judicial sources, and from its own general background knowledge of the subject, and concludes that there is a rational basis for this legislation.

I do not mean that the Court will substitute its own independent judgment for that of Congress. Its role, rather, is to ascertain whether Congress could reasonably have reached the conclusion it did as to the necessity or desirability of the legislation. In performing its function the Court will look not only to the findings in the statute, if any (and there is no constitutional necessity for findings at all), but to information of public record, such as the records of congressional hearings and of judicial proceedings, reports of public bodies such as the Commission on Civil Rights, and matters of common knowledge. I do not propose to review the factual justification for this legislation, since Mr. Biemiller and many other witnesses have done so, but I see little reason to doubt that the Court would uphold the legislation.

Mr. HARRIS. In this study, we do reach the conclusion that Congress has this authority.

I couldn't answer your question briefly, without in effect

Mr. CREECH. I would like to ask you this. You said you have concluded that Congress has this authority. Now which provision or provisions of the Constitution do you maintain gives Congress the authority?

Mr. HARRIS. I would say primarily the reconstruction amendment. Mr. CREECH. That would be the 13th, 14th, and 15th amendments, sir?

Mr. HARRIS. The 14th and 15th amendments; the 1st section of the 14th amendment, the 15th amendment, and the enabling sections of the 2d amendment.

Mr. CREECH. I see, sir.

Now, sir, the late James G. Blaine, who was Speaker of the House of Representatives, and who was later a Member of the Senate, in speaking on the 15th amendment, said

The 15th amendment now proposed did not attempt to declare affirmatively that the Negro should be endowed with the elective franchise, but it did what was tantamount in forbidding to the United States or to any State the power to deny or abridge the right to vote on account of race, color, or previous condition of servitude. States that should adopt an educational test or appropriate qualification might still exclude a vast majority of Negroes from the polls. But they would, at the same time, exclude all white men who could not comply with the test that excluded the Negro. In short, suffrage by the 15th amendment was made impartial, but not necessarily universal to male citizens above the age of 21 years.

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