It will be argued, therefore, that qualifications prescribed by State laws for voting, or registration to vote, other than qualifications based upon age, residence, freedom from confinement, and freedom from conviction of a crime, are susceptible of use, and have been used, to deny citizens the right to vote, because of their race and color, and that, therefore, Congress has the right to and should nullify and supersede the qualifications prescribed by State laws.

If this be good logic, if section 5 of the 14th amendment can be used in this respect, then it can be so used to abolish any State legislation which the Congress thinks is being used to deprive persons within the jurisdiction of any State of the equal protection of the laws.

It would make no difference if this is the law-what State, or how many States, had used a law "discriminatingly," or in the language of the Constitution, "so as to deprive presons within its jurisdiction of the equal protection of the laws."

If the State of California, for example, in the opinion of Congress used its capital punishment statute so as to deny persons within its jurisdiction the equal protection of it, that is, if more Chinese or Negroes were executed than white people, then the Congress could supersede the statutes of all States prescribing capital punishment.

Under this new theory of constitutional law, if a State criminal statute is even susceptible of such use by any State, Congress may repeal all such statutes in every State.

This supposed new-found power of Congress would not be confined to criminal statutes.

If taxing statutes of a State are susceptible of such use, or are being so used by any one State, Congress may repeal them all.

Under this supposed new-found power, Congress could repeal any statute of any State susceptible of being used to abridge the privileges or immunities of citizens of the United States.

Under this supposed new-found power, Congress could repeal any statute of any State susceptible of being used to deprive any person of life, liberty, or property, without due process of law, or susceptible of being used so as to deny to any person within the jurisdiction of a State the equal protection of the laws. If Congress has this power, then the States and the cities have absolutely no police power left, for any statute or ordinance enacted for the health, safety, and general welfare of the people is susceptible of being discriminately used. Drivers' licenses, speed limit laws, all safety measures, will disappear. All health measures will disappear.

Control of every phase of every day life will pass from city councils and State legislatures to the Congress.

SUPPLEMENT TO TESTIMONY OF CHARLES J. BLOCH

During the hearing of April 10, I was granted permission to supplement my remarks with additional material. I had hoped to make a fairly complete statement with respect to the 14th amendment and voting rights. However, I am now advised that supplementary material must be furnished by April 16. Hence, this will of necessity be rather sketchy.

I had hoped to develop the thesis that the 14th amendment was not intended to apply to voting rights.

If it was so intended, the adoption of the 15th was useless.

I am not unmindful of the trend of recent cases, but my knowledge of their holdings does not prevent my wondering when the shift from the 15th to the 14th as the measure of voting rights commenced and why.

The very fine opinion of Circuit Judge Cameron writing for himself and District Judges Mize and Clayton in Darby v. Daniel, 168 F. Supp. 170, in holding that "the qualification of voters is a matter committed exclusively to the States" and that "the Supreme Court has spoken on the subject in language as clear as it is decisive" (p. 176) cites several Supreme Court decisions beginning with Pope v. Williams (1904), 193 U.S. 621.

Then, Pope contended that the assailed Maryland statute was contrary to parts of the 14th amendment including that which prohibits a State from denying any person within its jurisdiction the equal protection of the laws.

The Court reiterated its ruling in Minor v. Happersett, 21 Wall. 162, and said:

"The State might provide that persons of foreign birth could vote without being naturalized, and as stated by Mr. Chief Justice Waite in Minor y. Happersett, supra, such persons were allowed to vote in several of the States upon having declared their intentions to become citizens of the United States. Some States permit women to vote; others refuse them that privilege. A State, so far as the Federal Constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote, as the Federal Constitution does not confer the right of suffrage upon anyone, and the conditions under which that right is to be exercised are matters for the State alone to prescribe, subject to the conditions of the Federal Constitution already stated; *** (pp. 632–633).

I emphasize certain words because it was those which I had in mind when I responded to the query of Senator Keating during the hearing.

The "conditions of the Federal Constitution" to which the Court referred are those of the 15th amendment (op. cit. 632) as the 14th does not in section 1 mention "race, color, or previous condition of servitude."

The next one cited is Guinn v. United States, 238 U.S. 347, which has doubtless been often cited in these hearings.

There the Court held a clause of the Oklahoma constitution to be void because it violated the 15th amendment. In the headnotes in the official report, the 15th amendment is mentioned five times; the 14th not once.

Indeed, in the arguments for the plaintiffs in error (p. 349) is this paragraph:

"Suffrage in the States of the American Union is not controlled or affected by the 14th amendment to the Constitution of the United States. Blaine's Twenty Years in Congress; Brannon's 14th amendment, 77; Coffield v. Coryell, 4 Wash. C.C. 371; Miller's Lectures on Const. 661; Minor v. Happersett, 21 Wall. 162; Slaughter House Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U.S. 303; 1 Willoughby's Constitution, 534; 2 Id. 483; 5 Woodrow Wilson's Hist. Am. People."

The argument of Mr. Solicitor General Davis for the United States as summarized (pp. 350-353) does not mention the 14th amendment, nor does the Court in its opinion.

Yick Wo, next mentioned, did not deal with voting rights.

Lane v. Wilson, 307 U.S. 268, dealt with an act of the Oklahoma Legislature passed following the Guinn decision. Justice Frankfurter delivered the opinion of the Court (of which Justices Black and Douglas were members) but Douglas took no part in the consideration of the case. The statute was measured entirely by the 15th amendment.

Schnell v. Davis, 336 U.S. 933, is discussed by Judge Cameron at page 180 of his opinion.

It is true that in Williams v. Mississippi, 170 U.S. 213, certain provisions of Mississippi's law as to qualifications of electors were considered with respect to an attack made on them as being violative of the 14th amendment. This case antedated Guinn and Lane v. Wilson. Evidently counsel did not make the point that such statutes were not susceptible of attack under the 14th amendment. It made no practical difference in the case as the Court held that they did not discriminate between the races, and it had not been shown that their actual administration was evil.

In Lassiter v. Northampton Education Board, 360 U.S. 45, the Court considered the question to be "whether a State may consistently with the 14th and 17th amendment" (p. 50) and cited first in its discussion Guinn v. United States in which the applicability of the 14th had not been considered.

When the Court considered the Texas primary laws in Grovey v. Townsend, 295 U.S. 45, it held that they denied no right given under the 14th or 15th amendment. When it was overruled in Smith v. Allwright, 321 U.S. 649, it was on the basis of a violation of the 15th amendment (p. 666).

Laying all cases to one side except Minor v. Happersett, let us examine the forbidding clauses of section 1 of the 14th amendment.

They are three in number.

First is "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; * * *". It is the only one of the three clauses which uses the word "citizens," the only one which limits protection to "citizens." Yet, it was held not to be sufficiently strong

(Minor

to permit women to vote prior to the adoption of the 15th amendment. v. Happersett, supra.) Next is "* ** nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *”. Corporations are "persons" within the meaning of this clause (Covington etc. Turnpike Road Co. v. Sandford, 164 U.S. 592, and numerous other cases) so clearly it has no application.

The third clause is: "* ** nor deny to any person within its jurisdiction the equal protection of the laws ***”. It also applies to corporations. It also applies to residents, alien born (Truax v. Raich, 239 U.S. 33) and even to aliens who are ineligible to citizenship (Sei Fujii v. State, 38 Cal. 2d 718). Certainly a State may prohibit an alien or one not a citizen of the State from voting. Certainly it could not if the equal protection clause was intended to apply to voting privileges.

Under this new theory of the 14th amendment will it now be urged that a State cannot prevent aliens "within its jurisdiction" from voting?

LITERACY TESTS AND VOTER REQUIREMENTS IN

FEDERAL AND STATE ELECTIONS

WEDNESDAY, APRIL 11, 1962

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 2:12 p.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee), presiding.

Present: Senators Ervin (presiding), Eastland (chairman of the committee), and Stennis.

Also present: William A. Creech, Chief Counsel and Staff Director; and Bernard Waters, Minority Counsel.

Senator ERVIN. The subcommittee will come to order.

Senator EASTLAND. Mr. Chairman, I want the honor of presenting the present Lieutenant Governor of Mississippi, the Honorable Paul B. Johnson.

His father was a very distinguished Governor of the State. In fact, he was one of our outstanding Governors. He made one very grave mistake, and that was when he appointed me to the U.S. Senate. Senator ERVIN. Well, I do not like to argue with my chairman, but I disagree with my chairman's statement.

Senator EASTLAND. Mr. Johnson, the present Lieutenant Governor has made an outstanding record as a lawyer, an outstanding record in the business world and in public life, and I certainly commend him

to you.

He is a man of unimpeachable integrity and very great ability. Senator ERVIN. The subcommittee is delighted to have you with us. Mr. JOHNSON. Thank you, Senator.

Senator ERVIN. I believe we have a witness with a short statement, and if it is all right with you, we will let him testify first.

Mr. JOHNSON. Thank you, Senator. I am here at your pleasure. Mr. CREECH. Mr. Chairman, the first witness this afternoon is Mr. Al Hartnett, the secretary-treasurer of the International Union of electrical, Radio and Machine Workers. Mr. Hartnett.

STATEMENT OF AL HARTNETT, SECRETARY-TREASURER, INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS

Mr. HARTNETT. My name is Al Hartnett. I am secretary-treasurer of the International Union of Electrical, Radio, and Machine Work

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