fications under its own law and did not arbitrarily apply them, the Federal Constitution provision for election according to the established qualifications for the State, would allow the State law to be federally superimposed over the Federal law, and anything in conflict with State law in the Federal statute would be void. Once again I feel that this bill undermines our constitutional balance of State and Federal power, and does so for the sake of a few minor States which would undoubtedly be able to use other means to accomplish their ends. I still am of the opinion that a direct active attack by the Civil Rights Commission with the right of the individual voter to seek vindication in the courts, either with the assistance of the Federal and State attorneys general or on his own, offers the surest way of combating the evil recognized by the bills. Best wishes. Very truly yours, A. PRATT KESLER, Attorney General. VERMONT MONTPELIER, February 19, 1962. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SIR: Your letter of February 7 addressed to Thomas Debevoise, as attorney general of this State, has come to my attention by reason of my succeeding Mr. Debevoise in this office. Your letter relates to the activities of the Senate Subcommittee on Constitutional Rights concerning two bills which in turn relate to literacy requirements as conditions for voting. This State has nothing by way of such requirements in its statutory law and it would not seem to me appropriate at this time for us to give consideration to the constitutionality and desirability of the bills you have under consideration. We appreciate the opportunity you have given us for comment and hope that you understand our reason for declining to consider the bills in the light of their constitutionality and desirability. Very truly yours, CHARLES J. ADAMS, Attorney General. VIRGINIA RICHMOND, February 28, 1962. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. MY DEAR SENATOR ERVIN: In accordance with the request in your letter of February 7, 1962, relative to S. 2750, I am enclosing a memorandum of the views of this office in regard to this bill. No specific reference was made to S. 480. The objections to S. 2750 apply also to S. 480 and, of course, S. 480 has the additional objection that it applies to all elections, State as well as Federal. You have authority to use this memorandum in any way desired by you, including insertion in the printed record, if you feel it is desirable to do so. I do not understand your letter of February 27, 1962, in which you acknowledged receipt of material furnished you in regard to these bills, as this memorandum is the first that this office has sent you. With kind regards and best wishes, I am. ROBERT Y. BUTTON, Attorney General. MEMORANDUM RE S. 2750 Senate bill 2750 provides that no person, whether acting under color of law or otherwise, shall be subjected to a deprivation of the right to vote in a Federal election.1 "Deprivation of the right to vote" is interpreted in the bill as mean 1 A Federal election is defined by the bill as an election for President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegate, or Commissioner from the territories or possessions. ing the denial to any person otherwise qualified by law of the right to vote on account of his performance in any examination, whether for literacy or otherwise, if such person has not been adjudged incompetent and has completed the sixth primary grade of any public school or accredited private school * * *.” As indicated in the preliminary portions of the bill, one of the major purposes of its enactment is to outlaw State literacy tests now required of prospective voters. The proponents of the bill rely for congressional authority upon article I, section 4 of the Constitution, giving Congress the power to regulate “the times, places and manner of elections"; upon the 14th amendment and its privileges and immunities, equal protection, and due process clauses; and upon the 15th amendment mandate that no State shall deny to its citizens the right to vote solely upon conditions of race, color, or previous condition of servitude. This memorandum will establish that none of the portions of the Constitution relied upon confer upon Congress the power to enact S. 2750. ARTICLE I, SECTION 4 While it is true that article I, section 4 permits Congress to regulate the times, places and manner of holding elections for Senators and Representatives, it is also true that this language is ambiguous. It is difficult to tell specifically what are those items which may be regulated by Congress. The ambiguity is eliminated to some extent by article I, section 2, and the 17th amendment, which provide that in the elections of Senators and Representatives, “the electors (voters) in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." In other words, the States shall establish qualifications which must be met by prospective voters. Under this clause, the States have established literacy tests and other requirements which have been upheld by the U.S. Supreme Court.❜ Aside from the fact that the Supreme Court has upheld the exercise of State power in this area, it is true that the authors of the Constitution contemplated that the States should have all constitutional authority, and the Federal Government should have no power, to set voter qualifications. Alexander Hamilton, speaking of the power to establish voter qualifications, stated: "this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. [Emphasis in original.] The qualifications of the persons who may choose or be chosen, as has been remarked on other occasions, are defined and fixed in the Constitution, and are unalterable by the (national) legislature." There have been a great many other occasions on which courts, legislators, and congressional committees have commented to the same effect,' but Hamilton's statement is perhaps the clearest one which may be used as an example to illustrate the complete lack of congressional authority in the area of voter qualification. THE 14TH AMENDMENT As to the power of Congress to enact legislation pursuant to the provisions of the 14th amendment, the Supreme Court has said "the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing Thus if the State laws as to literacy, poll taxes, and related requirements are prohibited by the 14th amendment, Congress is authorized to enact S. 2750 to counteract those State laws. But if the State laws are constitutional, Congress lacks the power necessary to enact S. 2750. 2 Literacy test: Lassiter v. Board of Supervisors, 360 U.S. 45 (1959). Poll tax: Breedlove v. Suttles, 302 U.S. 277 (1937). 3 The Federalist No. 60, at 402 (Wright ed. 1961) (Hamilton). [Emphasis added.] Er parte Yarbrough, 110 U.S. 651, at 663 (1884); Guinn v. United States, 238 U.S. 347, at 366 (1915); H.R. Rep. No. 3,000, 56th Cong., 2d sess. (1901); Cong. Globe, 27th Cong., 2d sess., 349 appendix (1842) (remarks of Mr. Clifford of Maine); note, 3 Race Rel. L. Rep. 390 (1952); Corwin, "The Constitution of the United States," 1172 (Legislative Reference Service, Library of Congress, 1952). 5 Civil Rights Cases, 109 U.S. 3. 13 (1883). [Emphasis added.] See also, United States v. Harris, 106 U.S. 629, at 639 (1883). State literacy tests and poll taxes have been upheld as constitutional. As recently as 1959, Mr. Justice Douglas, speaking for a unanimous Court, stated that "in our society *** a State might conclude that only those who are literate should exercise the franchise."" Since the Supreme Court is of the unanimous opinion that literacy tests are constitutional exercises of State power, no State is prohibited from enacting laws providing for such tests. Therefore Congress has no authority to declare void these State laws. It is proper to point out that the Supreme Court, not Congress, is charged with the responsibility of determining the constitutionality of State laws. THE 15TH AMENDMENT The Supreme Court has said that the 15th amendment does not confer on Congress authority "to impose penalties for every wrongful refusal to receive*** (a) vote *** (but) only when the wrongful refusal is because of race, color, or previous condition of servitude." 8 Or in other words, if a State's laws regarding voter qualification are constitutional, there is no power in Congress to declare these laws void by passing conflicting legislation. The situation is almost identical with the situation under the 14th amendment. State literacy tests and poll taxes have been held not to be violations of the 15th amendment." It necessarily follows that, since the States are not constitutionally prohibited from passing such laws, there is no power in Congress to enact conflicting legislation. It should be noted that 19 States, most of them non-Southern States, have enacted laws requiring literacy tests of prospective voters.10 It is recognized that if these State laws go beyond the provisions of the 15th and 19th amendments, they are unconstitutional." But in this regard it is again emphasized that the responsibility for determining the constitutionality of these laws is in the Supreme Court, not in the Congress. PRESIDENTIAL ELECTIONS With regard to presidential elections the Constitution provides: "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress." 12 The words "in such manner as the legislature thereof may direct," are conclusive upon the question here under consideration.13 The only authority of Congress in this regard is to "determine the time of chusing the electors, and the day on which they shall give their votes ***" 14 It is without question true that, in presidential elections even more than in congressional elections, the power of the States to determine all aspects of the procedure, including voter qualifications, is superior to any other legislative authority.15 CONCLUSION Senate bill 2750 is an unnecessary proposal, because all the States currently have laws governing exercise of the franchise. If these laws are in any way oppressive, citizens of the States may petition their State legislatures for redress. It is error to assume that the Congress can better establish voting requirements in the several States than can the legislatures of those States. The proposed legislation is, therefore, logically unsound. In addition, S. 2750 is constitutionally unsound. Article I, section 4 of the Constitution confers on Congress no power to establish qualifications for voters, and article I, section 2 absolutely denies that Congress is to have such power. Neither the 14th nor the 15th amendment confers on Congress the power to void • See note 2, supra. See also Williams v. Mississippi, 170 U.S. 213 (1898). Lassiter v. Board of Supervisors. 360 U.S. 45 52 (1959). 8 United States v. Reese, 92 U.S. 214, 218 (1876). See notes 2 and 6, supra. 10 See 3 Race Rel. L. Rep. 390 (1958), for a listing of the States and the applicable statutes. 11 Guinn v. United States, 238 U.S. 347 (1915); Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala., 1959). 12 U S. Constitution, art. II. sec. 1, cl. 2. 13 McPherson v. Blacker, 146 U.S. 1 (1892). 14 U S. Constitution, art. II, sec. 1, cl. 4. 15 Wi'kinson, "The Electoral Process and the Power of the States," 47 A.B.A.J. 251, at 251 (1961). See In re Green, 134 U.S. 377 (1890). existing State laws. Since the Supreme Court has declared these State laws constitutional, Congress lacks authority to pronounce them unconstitutional. It follows that Senate bill 2750 should be rejected by the Subcommittee on Constitutional Rights. MEMO REGARDING S. 2979; SPECIFICALLY, AS COMPARED WITH S. 2750 Senate bill 2979 differs from S. 2750 in one major respect: it would grant to the Federal Government power to establish qualifications for those who vote in State elections. At the very least, this is an astounding proposition, as reason would dictate that each State should administer its own political system. But the fact that this proposition is offered not as a constitutional amendment. but as a simple act of Congress, can only produce amazement in the mind of anyone who has never read the Constitution. To quote Alexander Hamilton, a man whose dedication to a system of strong Central Government cannot be questioned: "Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment ***" (The Federalist No. 59, at 395 (Wright ed. 1961) (Hamilton)). Hamilton's language was strong, even when he addressed himself to the question of a constitutional provision which would give Congress the power asserted in S. 2979. Since the Constitution does not give Congress that power, but on the contrary expressly denies the power, the tenor of Hamilton's language must be doubled in intensity in rejecting S. 2979. Thus the proposed legislation not only is beyond the constitutional power of Congress; it must be, according to Hamilton, "a premeditated engine for the destruction of the State governments." With regard to the authority of Congress to enact this legislation pursuant to provisions of the 14th and 15th amendments, it is necessary only to examine briefly arguments advanced in the previous memorandum concerning S. 2750. The power given Congress to enforce the provisions of the 14th and 15 amendments is not all inclusive. The only laws Congress may pass in this regard are those "counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing.”—Civil Rights cases (109 U.S. 3, 13 (1883)). The above quotation applies specifically to the 14th amendment. Identical logic may be found regarding the 15th amendment in United States v. Reese (92 U.S. 214, 218 (1876)). State required literacy tests, poll taxes, age limits, and other similar qualifications have time and again been upheld by the Supreme Court as not violative of the 14th or the 15th amendment. Thus the laws which S. 2979 seeks to counteract are not prohibited by the amendments. It follows that there is no authority in Congress pursuant to these amendments to enact S. 2979. PRACTICAL OBJECTIONS S. 2979 is open to a number of practical objections which immeditely meet the eye. At page 2, line 24, the bill begins a list of items which still may be legislated upon by the States. Item (1) authorizes reasonable age requirements. Who has final authority to define "reasonable"? The Supreme Court of the United States. Similarly, under item (2), that Court must finally determine what is a reasonable residence requirement. The result must be that the Supreme Court will establish a substantial portion of local election codes. Surely this was not envisioned by the authors of the Constitution or any of its amendments. Item (3) provides that one legally confined at the time of registration or election may be denied the franchise. But paupers, persons convicted of a multitude of election frauds, and a great many others who are now denied the franchise by State law must be admitted to the polls. Section 3 of the bill purports to leave the States some discretion in establishing literacy tests, but in effect it eliminates all reasonable literacy tests now required by the States. By requiring that any citizen who has completed the sixth grade be permitted to vote in any Federal or State election, the bill completely ignores the fact that a person may complete the sixth grade and thereafter become incompetent to exercise the franchise. This is an example of the type of intricate problem which can best be handled at the lower levels of government. There are many similar problems which have been handled by the States since the formation of the Republic, and which the States would be precluded from handling under the provisions of S. 2979. CONCLUSION Senate bill 2979 is inherently bad regarding Federal elections for all the reasons set forth in the previous memorandum from this office regarding S. 2750. Insofar as S. 2979 purports to deal with qualifications of voters in elections for State officers, there is no semblance of power in Congress to enact the proposed law. Very simply stated, the Constitution does not grant Congress any power in this area, and without such a grant of power, Congress has no authority to act. WISCONSIN MADISON, March 1, 1962. Re Bills S. 480 and S. 2750. Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Senate Office Building, Washington, D.C. DEAR SENATOR ERVIN: This is in reply to your letter of February 7 requesting my opinion on the constitutionality of the two above captioned bills relating to literacy tests for voting. Inasmuch as Wisconsin has no literacy test and the constitution of this State does not authorize the enactment of any such test, the two Senate bills in question do not in any way affect this State. Neither do the provisions relating to other arbitrary deprivation of the right to vote have any significance so far as this State is concerned. Therefore the constitutional issue raised by your letter is not a matter of concern to this office and I have no official reason to interest myself in the matter. In view of the fact that my staff and I are greatly overburdened with litigation and other matters pertaining to the duties of this office and it would require considerable research to answer your question, I respectfully decline to express an opinion. I wish to thank you for the opportunity which you have extended to express an opinion, and I assure you that if the matter were of concern to this State I should be most happy to comply with your request. Sincerely yours, JOHN W. REYNOLDS, Attorney General. SURVEY OF OPINIONS OF CONSTITUTIONAL LAW PROFESSORS LETTER FROM SENATOR SAM J. ERVIN, JR., SUBCOMMITTEE CHAIRMAN, REQUESTING OPINIONS FROM CONSTITUTIONAL LAW PROFESSORS DEAR PROFESSOR: The Senate Subcommittee on Constitutional Rights is presently considering two bills relating to literacy requirements as conditions for voting. One of these is S. 2750, the administration bill, and the other is S. 480, introduced by Senator Javits. It is anticipated that public hearings on these bills will be held in March. In view of the constitutional ramifications of these bills, it would be of great assistance to the subcommittee to have your opinion, as a professor of constitutional law, concerning the constitutionality and desirablity of these measures. |