LITERACY TESTS AND VOTER REQUIREMENTS IN

FEDERAL AND STATE ELECTIONS

TUESDAY, APRIL 10, 1962

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee), presiding.

Present: Senators Ervin (presiding), Keating, Johnston, and Long of Missouri.

Also present: Senator Barry Goldwater, of Arizona.

William A. Creech, chief counsel and staff director; and Bernard Waters, of minority counsel.

Senator ERVIN. The subcommittee will come to order.

The subcommittee welcomes here this morning the Attorney General of the United States. We will be glad to hear from you at this time.

STATEMENT OF ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES; ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL

Attorney General KENNEDY. Mr. Chairman, I am particularly happy to be here before your subcommittee, as I spent so many years associated with you and working for you.

I was on the other side of the table then, but I am delighted to be here today.

Senator Ervin, and members of the committee, I am here because I believe strongly that the American system of government depends upon the fullest participation of all its citizens. Therefore, I appreciate this opportunity to testify in support of S. 2750. This bill would end abuses in the administration of State literacy requirements for persons seeking to have a voice in their government. It would ban the unfair use of literacy tests to prevent literate persons from voting. Its enactment would give new fulfillment to our basic belief in justice under the law.

The administration fully supports this proposal. It should be enacted without delay.

When the 15th amendment was adopted in 1870, it became illegal to practice racial discrimination in the voting process. Yet it is necessary today, 92 years later to file lawsuit after lawsuit to make this constitutional command a reality.

The gap between principle and practice is particularly acute in States with large Negro populations. In 1959, in 16 counties in which Negroes of voting age were the majority, not one Negro was registered to vote. In 49 other such counties, fewer than 5 percent of the eligible Negroes were registered. In 23 counties in one State with a large Negro population, and at least 63 in another, the percentage of registered Negroes of voting age are less often very substantially lessthan 10 percent. In 66 of those counties the number registered can only be termed insignificant.

These and similar statistics have been a source of major concern to me and the Department since I took office. I must report to the subcommittee that beyond question they are mainly the result of discrimination by registration officials. Further, our experience shows overwhelmingly that the principal cause and method of discrimination has been the abuse of so-called literacy or interpretation tests and similar performance tests. My own conclusion is confirmed by the findings of others with longer experience and unquestioned expertness in this field. In 1957 the Southern Regional Council found that literacy test or interpretation or other types of performance testswas the legal weapon used most often to discourage and stop Negroes from registering to vote. In its 1961 report the Commission on Civil Rights made a similar finding.

This type of discrimination is accomplished most frequently by giving wide discretion to the persons who administer the tests while making objective review of their actions as difficult as possible.

Some tests involve reading. Who is to determine what is "satisfactory reading"? Who has the last word on whether a person reads too quickly or not fast enough? Is it right for an applicant to be flunked for mispronouncing a word? No standards have been set nor are any available. The result is that registrars can pass or fail applicants as they see fit.

Opportunities for discrimination also exist in the administration of writing and understanding tests. Applicants can be required to write from the dictation of the registrar-which can be fast or slow, distinct or indistinct, or even inaudible. They might have to write long or short statements, interpret complex or simple test materials-all to the satisfaction of the examiner. In the last analysis the opportunities for discrimination are endless, as I think some case instances will illustrate.

One Negro, who has applied to register four times since 1957, explained to the court that he had not tried to interpret a constitutional provision dealing with a city's debt liquidation because "it was so complicated." The U.S. district judge studied the lengthy provision and commented, "I am inclined to agree with you on that."

Persons, whose exact ages appeared on their applications, were denied registration because they inserted the phrase "since birth" or "all my life" in a blank calling for the length of their residence in the county.

Similarly, Negro applicants who stated their names in four places on one application form were rejected because they failed to insert it in a fifth blank.

Elsewhere, a Negro schoolteacher was rejected because in reading a long passage aloud perfectly, she pronounced "equity" as "eequity."

White applicants in those same districts, on the other hand, have been assisted in completing the forms, and sometimes they have been registered without taking any test.

These particular examples eventually could be corrected through litigation and we have cases of voting discrimination in various stages of progress. But the area of discretion in all these types of performance tests is so wide that other methods of abuse always can be found.

The Federal Government must deal with this problem. The issue is not whether to act, but how.

We ask for nothing more than new remedies for old wrongs. This administration believes States may legitimately require their voters to have the ability to inform themselves about election issues. I think it is clear the bill does not prevent the States from requiring literacy or understanding ability of their voters. That objective is not wrong.

The wrong lies in the manner in which literacy and understanding are determined. Our proposal deals with manner and method-not with ultimate goals.

What we propose is to substitute an objective standard for the present subjective color bar to Federal voting. The bill we support recognizes a fact of our national life: Persons who have completed the sixth grade are qualified to vote and are fully capable of intelligent participation in the democratic process-by any reasonable standard fairly applied.

After exhaustive studies, the Bureau of the Census has determined that completion of six grades of school can be equated with literacy. The Civil Rights Commission unanimously recommended Federal law to make completion of six grades sufficient qualification under any State literacy or interpretation test. Experience in States with no racial discrimination problem demonstrates persons with a sixth-grade education can pass reasonable tests impartially applied.

Responsible authorities in such States do not believe our proposal would add illiterates to their voting rolls, or would significantly affect the administration of their qualification tests in any way. Answers to our inquiries from a number of these States-Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New York, Oregon, Washington, Wyoming-make it clear that no question would arise as to the qualifications of any person with as much as a sixth grade education.

Senator KEATING. Mr. Chairman, if the Attorney General will pardon an interruption at this point, he referred to the State of New York, and it would seem to me that this is an appropriate place to place in the record a letter to the chairman from Gov. Nelson A. Rockefeller of New York, with regard to this subject.

Senator ERVIN. If there is no objection. On the other hand, it might be more appropriate to make that statement a part of the record immediately following the Attorney General's statement.

Senator KEATING. Thank you very much.

Senator ERVIN. The statement will be placed in the record immediately after the Attorney General's statement.

Attorney General KENNEDY. For these reasons, Mr. Chairman, I conclude that the manner of measuring voter competency which we

recommend will eliminate the arbitrary aspects of the present system while permitting the States to set whatever basic qualifications it considers desirable to achieve a qualified electorate.

Before asking for this legislation, I fully considered whether the problem could be solved without new legislation. This was in keeping with the policy of the administration. Prior to the first session of this Congress the President explained that, before recommending any new legislation in this field, we wished to test the existing tools with vigor and imagination.

We have done so, and we have made significant progress. However, our experience shows that existing laws are inadequate. The problem is deep rooted and of long standing. It demands a solution which cannot be provided by lengthy litigation on a piecemeal, countyby-county basis. Until there is further action by Congress, thousands of Negro citizens of this country will continue to be deprived of their right to vote.

Next, I wish to comment briefly on a special aspect of the administration proposal. The bill also would benefit citizens of Puerto Rican origin who possess the required educational background. These persons were educated under the American flag in schools in which Spanish is the classroom language. They are literate citizens, and they can be intelligent voters. The numerous Spanish-language news media available in the United States amply inform their readers and listeners about public issues. We have a national obligation to take steps to eliminate the cause of their disenfranchisement.

Let me say a word or two about the constitutional basis for the proposed legislation. I am fully conscious of the questions that have been raised on this point, and we have gone into the matter with great care and thoroughness. I am filing with the subcommittee a full legal analysis of the problem. But the essential constitutional basis for the proposed legislation is really quite simple.

On their face and as a matter of history, the 14th and 15th amendments are an affirmative grant of power to Congress to enact legislation to guarantee the rights protected by these amendments, including principally the right to vote.

I have no doubt that this bill is valid under that grant of power. There is no question that widespread deprivations of the right to vote because of race have occurred and continue to occur. The question is not whether this bill is valid, but whether it would correct the situation. Voting tests which in this day of high educational achievement can exclude persons with a sixth-grade education are potential devices for discrimination. In my judgment, virtually no one with that amount of education has been turned down as a voter for other than racial reasons. Congressional action adapted to correcting this evil is not a questionable innovation. It is overdue.

In this connection I might point out that we have furnished the subcommittee with a list and brief description of all the cases which have been filed under the 1957 and 1960 Civil Rights Acts.

The judgments that have been entered in completed cases are supported by judicial findings of racial discrimination in the counties. I do not suppose that anyone would question but that they are constitutional. All that this bill would do is to take an overall corrective step based upon a similar finding by Congress of racial discrimination.