Thank you for allowing me the opportunity of expressing my views on the two bills and I would like to offer my services to the subcommittee at any time you may feel they would be of some use.

Sincerely yours,

MORTON GITELMAN, Assistant Professor of Law.

REMARKS BY MORTON GITELMAN, ASSISTANT PROFESSOR OF LAW, UNIVERSITY OF DENVER COLLEGE OF LAW, CONCERNING THE CONSTITUTIONALITY OF S. 2750, 87TH CONGRESS, 2D SESSION AND S. 480, 87TH CONGRESS, 1ST SESSION

I. S. 2750

(A) Constitutionality of abolishing literacy tests

The problems attendant upon a congressional attempt to abolish literacy tests as a State imposed election qualification are compounded by the fact that the United States Supreme Court has never expressly delimited the powers of Congress to regulate elections. However, the Court has given many indications of the relative powers of the States and of Congress which may prove helpful.

Few have questioned the broad powers of the States to impose qualifications for electors in Federal as well as State elections. These powers stem from article I, section 2: "* ** the electors in each State shall have the qualifications requisite for the electors of the most numerous branch of the State legislature."; the 17th amendment which uses similar language for senatorial electors; article II, section 1, clause 2 and the 12th amendment use similar language for presidential electors. In addition, the Supreme Court has often mentioned the power of the States to impose qualifications for electors. See, e.g., Pope v. Williams (193 U.S. 621 (1904)); Guinn v. United States (238 U.S. 347 (1915)). Although the States have broad power to impose voting qualifications, this power is not absolute. Clearly, the 15th and 19th amendments prevent the States from regulating elections in such a manner as to discriminate against citizens because of race, color, or sex. Also, article I, section 4, gives Congress the power to regulate the "Times, places, and manner" of holding elections for Senators and Representatives.

Applying the above principles to the question of literacy tests, the first consideration must be the case of Lassiter v. Northampton Election Board (360 U.S. 45). This recent (1959) case held that a State may require a literacy test, nondiscriminatory on its face, to all prospective voters. However, in the course of his opinion for a unanimous Court, Justice Dougles stated:

"So while the right of suffrage is established and guaranteed by the Constitution *** it is subject to the imposition of State standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed." (360 U.S. at p. 51.) [Emphasis added.]

The implication of this statement is that a State may impose a literacy test in the absence of a valid congressional act to the contrary. If S. 2750 were law at the time of the Lassiter case, the question the Court would have had to determine is whether the congressional exercise of power is valid. As further indication that the Lassiter case, by itself, does not stand in the way of S. 2750, we have two expressions by the Supreme Court that the powers of the States are limited by article I, section 4:

(1) In Minor v. Happersett (21 Wall. 162 (1875)), Justice Waite said:

"It is not necessary to inquire whether this power of supervision (under art. I, sec. 4) thus given to Congress is sufficient to authorize any interference with the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts." (21 Wall. at p. 171.)

(2) In United States v. Classic (313 U.S. 299 (1941)), the Court indicated that the power of the States was subject to article I, section 4, and the "necessary and proper" clause:

"[T]he States are authorized to legislate on the subject (voting qualifications) as provided by section 2 of article I, to the extent that Congress has not restricted State action by the exercise of its powers to regulate elections under (art. I, sec. 4) and its more general power under article I, section 8, clause 18, of the Constitution to 'make all laws which shall be necessary and proper for carrying into execution the foregoing powers'." (313 U.S. at p. 315.)

Therefore, since the powers of the States to impose voting qualifications are limited by the valid exercise of congressional powers, it only remains to inquire whether the power of Congress to regulate the "times, places, and manner" of holding elections for Senators and Representatives extends to abolition of literacy tests.

The question of whether the phrase "time, places, and manner" extends to voting qualifications has been debated before. See, e.g., "Hearings before a Subcommittee of the Committee on Judiciary on S. 1280, 77th Congress, 2d session (1942)." dealing with proposed antipoll tax legislation. These debates must be regarded as inconclusive, since the legislation was never enacted or tested. However, some precedent, judicial and historical exists for the proposition that voting qualifications, such as literacy tests, fall within the phrase "time, places, and manner."

In Smiley v. Holm (285 U.S. 355 (1932)), Chief Justice Hughes stated: "The subject matter is the 'times, places, and manner of holding elections for Senators and Representatives.' It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections." (285 U.S. at p. 366.)

Also see Dummit v. O'Connell (181 S.W. 2d 691 (Ky. 1944)), where the Court stated a voting qualification referred to the method of casting a ballot and could be abrogated by an act of Congress under article I, section 4.

James Madison spoke of article I, section 4, in the following terms: "Should the people of any State, by any means, be deprived of the right of suffrage, it was judged proper that it be remedied by the General Government." (3 Elliott, Debates on the Adoption of the Federal Constitution, 367 (1866).)

In addition to the above statements, the proposition that Congress can act generally under article I, section 4, against fraud and corruption in elections has been well settled. See, e.g., Ex parte Yarbrough (110 U.S. 651 (1884)); Ex parte Siebold (100 U.S. 371 (1879)); United States v. Classic (313 U.S. 299 (1941)).

Under article I, section 4 Congress can regulate elections for Senators and Representatives, since State imposed voting qualifications relate to the "manner" of holding elections; the Supreme Court has indicated on more than one occasion that the powers of Congress under article I, section 4 are broadbroad enough to reject the view that the section refers only to the mechanics of holding elections.

Congress has the power, as demonstrated above, to abolish literacy tests in elections for Senators and Representatives. The question remains whether S. 2750 can abolish literacy tests in elections for President, Vice President, or presidential electors.

The powers of Congress in regard to presidential elections is necessarily limited by the fact that article I, section 4, applies only to congressional elections. Some Supreme Court cases sustain the view that the powers of the States are absolute in the area of presidential elections. See, e.g., In re Green (134 U.S. 377 (1890)); McPherson v. Blacker (146 U.S. 1 (1892)). However, a later case, Burroughs v. United States (290 U.S. 534 (1934)), stated that the power of Congress extends to protection of presidential elections from corruption. The Burroughs case specifically denied that congressional power over presidential elections is limited to determination of the time of choosing electors. Another indication that Congress may regulate presidential elections is found in Ex parte Yarbrough (110 U.S. 651 (1884)), where the Court holds that once the States grant the right to "vote" for presidential electors (in opposition to appointment or some other scheme of selection) the right becomes a national right. Thus Congress can regulate this national right under the privileges and immunities clause and section 5 of the 14th amendment.

In conclusion, then, the portions of S. 2750 which abolish literacy tests in Federal elections are a constitutional exercise of the power of Congress. (B) Constitutionality of creating a presumption of literacy

S. 2750 creates a presumption of law that completion of a sixth-grade education is proof of literacy. The question arises whether Congress can constitutionally create such a presumption. The question has been quite settled in favor of such legislative presumptions: "Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, National and State, dealing with such methods of proof in both civil and criminal cases,

abound, and the decisions upholding them are numerous. (Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 42 (1910), quoted with approval in Adler v. Bd. of Education, 342 U.S. 485 (1952).)"

II. S. 480

S. 480 is similar in all major respects to S. 2750 except that it seeks to abolish literacy tests in State as well as Federal elections. This difference is enough to raise serious doubts as to the constitutionality of S. 480.

The powers of Congress to regulate State and local elections are limited to the areas encompassed by the 14th, 15th, and 19th amendments. The 19th amendment need not be considered here since it deals with female suffrage. S. 480 cannot be supported on the basis of the 15th amendment since citizens are not being denied the right to vote because of race or color. Literacy tests which are required of all prospective voters do not violate the 15th amendment; thus Congress has no power under that amendment to abolish literacy tests.

The only resting place, then, for S. 480 is the 14th amendment. The power of Congress to abolish literacy tests in State elections under this amendment is questionable. First, the right to vote in a State election is not a right peculiar to U.S. citizenship; therefore, it is not a privilege and immunity under the 14th amendment. See Slaughter-House Cases, 16 Wall. 36 (1873); Twining v. New Jersey, 211 U.S. 78 (1908). Second, literacy tests do not violate the equal-protection clause nor the due-process clause since the tests are general, applicable to all, and are a reasonable exercise of the police power of the States. See Lassiter v. Northhampton Election Bd., 360 U.S. 45 (1959). Although a literacy test may be, and probably is, applied in a discriminatory manner, it is valid on its face; furthermore, the victim has a remedy under existing civil rights legislation. See U.S. Rev. Stats. § 5510; 42 U.S.C. § 1983.

In conclusion, the constitutionality of S. 480 is, at best, doubtful. The problem of literacy tests is best handled through regulation of Federal elections as in S. 2750. The congressional power in respect to Federal elections is much broader : in addition, the abolition of literacy tests in Federal elections will tend to solve the entire problem because of usual State practices of providing a single registration for Federal and State elections and a single ballot for Federal and State officers.

DE PAUL UNIVERSITY LAW SCHOOL

CHICAGO, ILL., March 17, 1962.

Hon. Senator SAM J. ERVIN, Jr.,
U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: This concerns your letter of February 9, 1962, in which you request an opinion as to the constitutionality of two bills, S. 2750 and S. 480, literacy requirements in voting at Federal elections.

The broad power of the State to prescribe voting qualifications of electors has, it is true, been upheld by several Supreme Court decisions. Congress had not legislated on the subject of literacy in voting. Therefore the Court has not in the past been called upon to answer the question of congressional power in this regard. The Court has at no time denied congressional power in this field. In decisions upholding the right of the State to prescribe voting qualifications there is on occasion set forth an undefined residuum of power in Congress. Pope v. Williams (193 U.S. 621), says "the right to vote for a Member of Congress is not derived exclusively from State law." In Minor v. Happersett (88 U.S. 162, 171), the question was whether women by State law could be denied the right to vote, and the Court said: "It is not necessary to inquire whether the power of supervision (over national elections) thus given to Congress is sufficient to authorize any interference with the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State is supreme until Congress acts." Note the Court says "until Congress acts." In United States v. Classic (313 U.S. 299), the Court said: "While in a loose sense, the right to vote for Representatives in Congress is sometimes spoken of as a right derived from the States *** this statement is true only in the sense that the States are authorized by the Constitution to legislate on the subject as provided by sec. 2 of art. I, to the extent that Congress has not restricted State action by the exercise of its power to regulate elections under sec. 4 and its more

general powers under art. I, sec. 8, clause 18 of the Constitution," the necessary and proper clause.

Ex Parte Yarborough (110 U.S. 651), says: "His right to vote is based upon the Constitution and not upon State law, and Congress has the constitutional power to pass laws for the free, pure, and safe exercise of that right. It is not true that electors for Members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to vote depend exclusively on the law of the State."

Ex Parte Siebold (100 U.S. 371), recognized an extensive power in Congress to affirmatively legislate to maintain the purity of Federal elections even to the extent of proscribing conduct by State officials under State law.

S. 2750 and S. 480 do not prescribe qualifications of voters. They set limits to what otherwise might be discrimination in elector qualifications. This is a facet of regulation of elections to prevent interference with the right to vote rather than qualification of electors. Congress in these bills makes findings regarding discrimination, arbitrary action, and unreasonableness in denying the right to vote to persons who might otherwise be qualified. The Court could certainly find rational basis for these findings citing, for instance, United States v. Raines (362 U.S. 17), where Negro college graduates testified they had been refused permission to register to vote on grounds of illiteracy for mispronouncing or misspelling words in constitutional sections read to them by the registrar. Yick Wo v. Hopkins (118 U.S. 356), found that an otherwise valid law violated the Constitution because its enforcement discriminated against the Chinese. The Court has upheld congressional findings on numerous occasions, very recently in Communist Party of America v. Subversive Activities Control Board (367 U.S. 1). The Court might very well agree with congressional findings and hold that literacy requirements lead to widespread discrimination under the 14th and 15th amendments and that Congress under its authority to prevent discrimination and maintain the purity of Federal elections may legislate to that end.

Although Spanish speaking groups in this country are not technically a race in the sense that Negroes are, they are a race under the 15th amendment in a broad ethnic and cultural sense. The Britannica World Dictionary gives one of the definitions of race as "any class of beings having characteristics uniting them or differentiating them from others."

Under the Meyer v. Nebraska case (262 U.S. 390), the Court in upholding the right to use the German language in teaching said: "The protection of the Constitution extends to all, to those who speak other languages as well as those born with English on the tongue.”

The U.N. Charter has the same effect as a treaty. The Court has indicated it is the law of the land. It provides that members "should promote universal respect for and observance of human rights and fundamental freedoms for all without discrimination as to race, sex, language, or religion." The Declaration of Human Rights provides that voting privileges shall be extended to everyone "without distinction of any kind, as to race, sex, language, religion, political or other opinion, national origin, property, birth, or other status."

It is possible that in the final analysis the Court may look upon the matter of literacy requirements in voting as a political question when Congress steps in. I believe the legislation would be held constitutional on the basis of the above You may use this expression of views for any purpose you desire including insertion in the printed record.

The very best to you in your endeavors.
Respectfully yours,

ROBERT G. WECLEW,

Associate Professor and Teacher of Constitutional Law,
DePaul University.

Re: S. 2750 and S. 480

DICKINSON SCHOOL OF LAW

PHILADELPHIA, PA., February 21, 1962.

Hon. SAM J. ERVIN, Jr..

Chairman of the Subcommittee on Constitutional Rights.

Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: As per your request, Dean Shafer of Dickinson School of Law has forwarded to me, as professor of constitutional law at Dickinson,

82715-62-38

your letter of February 12 asking my opinion concerning the constitutionality of S. 2750 and S. 480.

As your letter points out, provisions in article I and the 17th amendment require that the electors for Senators and Congressmen in each State "shall have the qualifications requisite for electors of the most numerous branch of the State legislature." Similarly, article II and the 12th amendment indicate that the President and Vice President are to be elected "by electors who must be chosen in each State."

In my opinion, the language of the Constitution clearly reposes in the States the ultimate determination of the qualifications of the voters. Without constitutional amendment, I do not see how Congress can take from the States the power to determine such qualifications.

Of course, in view of the amendments following the Civil War, which guarantee Negro suffrage, and under decisions like Guinn v. U.S., (238 U.S. 347). the Federal Government, both through its courts and through Congress, may, and should, act to prevent discrimination against Negroes, and, for that matter, against any other minority group. Congress may certainly forbid States from setting higher qualification standards for Negro and other minority group voters then are set for voters generally, but so long as the States meticulously avoid any semblance of discriminataion, neither the Supreme Court nor Congress, in my opinion, has authority to interfere with the constitutional prerogative of the States to determine for themselves the qualification of voters. In my opinion, the proposed statutes go beyond merely preventing discrimination and cannot be justified, even as a sophisticated effort to avoid discrimination.

Finally, in answer to your inquiry concerning the constitutionality of creating a presumption in law that completion of a sixth grade education is of itself proof of literacy and of capacity to vote intelligently, it is my opinion that, even if the presumption were made rebuttable, a Federal statute of that sort would still be invading the prerogative of the States. I might add that if diplomas are going to be made a prerequisite for voting, a Pandora's box of problems is going to be precipitated.

I note that S. 2750 is willing to substitute proficiency in Spanish for proficiency in English. If proficiency in Spanish is to be sufficient, why not proficiency in Hebrew, Italian, Germany, French, etc.?

I am opposed as firmly as anyone can be to discrimination against Negro and other minority group voters, but I am persuaded that the Federal courts, under existing constitutional and statutory provisions, can deal adequately with any attempts to disenfranchise Negroes or minority groups and that these proposed statutes are not only unnecessary, but would create needless problems and limitations upon the powers of the States.

Sincerely,

DONALD J. FARAGE.

PHILADELPHIA, PA., March 27, 1962.

Hon. SAM J. ERVIN, Jr.,

U.S. Senate, Committee on the Judiciary,

Subcommittee on Constitutional Rights, Washington, D.C.

DEAR SENATOR ERVIN: Your letter of March 23, asking me to comment on S. 2979, is acknowledged.

While this bill is, in some respects, better drafted than S. 480 and S. 2750, it is my opinion that it is still subject to the same basic objections that I previously voiced concerning the other two bills.

I notice that S. 2979 attempts to regulate the qualifications of voters for both Federal and State elections and that, in effect, it deprives the States of the power to require more than a sixth grade education as a qualification for registering or voting. Despite the more sophisticated phraseology used throughout this bill, it still appears clear to me that the bill goes far beyond preventing discrimination, on account of race or color, and purports to impose even nondiscriminatory literacy requirements. Under the existing Constitution, I see no reason why, in this modern day of advanced education, a State should not have the power to require a 10th grade or even full high school education as a condition of voting, so long as such condition was uniformly applied throughout the State to all perI iterate that, in my opinion, the 14th and 15th amendments permit the Federal Government to regulate voters' qualifications only to the extent of proscribing discrimination; whereas this bill, in the guise of seeking to prevent dis

sons.