crimination, goes far afield and seeks to limit the power of the States to enact even nondiscriminatory legislation, which is clearly entrusted to the States under existing constitutional provisions. Again I iterate such a bill opens a "Pandora's box." Suppose a Negro, who finished his schooling in Texas 50 years before, seeks to vote in North Carolina. Suppose he has no certificate showing completion of a sixth grade education. How are his educational qualifications determined? Suppose no records are available from Texas, either because records were not preserved when he went to school, or because they had been lost in one way or another. Will a letter or a note from a former teacher or other hearsay evidence of qualifications be sufficient? If he presents a certificate showing that he completed sixth grade, are the State authorities necessarily to be bound by the certificate? May they question its authenticity, and, if so, are there going to be trials to test such authenticity? Even if it is conceded that he had a valid certificate showing completion of sixth grade studies, suppose that the standards of education in the State where the Negro seeks to vote are such that the achievement in the State where the schooling took place is equivalent only to that of the fourth grade in the State where the Negro seeks to vote. In the latter case, to allow this Negro to vote on what is essentially the equivalent only of a fourth grade education would be to discriminate unfairly against local citizens whose sixth grade education involved higher achievement. In short, by the standards of which State is the fact of a sixth grade education to be measured, the State where the schooling took place, or the State in which the citizen seeks to vote? This bill opens the door to these and many other troublesome questions. Finally, I note that, in addition to limiting the power of the States to enact nondiscriminatory literacy tests, S. 2979 also attempts to restrict the power of the States to enact age and residency requirements by requiring that such requirements be "reasonable" as well as nondiscriminatory. It seems to me that the power and burden of determining what is reasonable is one which the Constitution entrusts to the States. If a State chooses to enact age and residency requirements, which are reasonable under the constitution of the State, I cannot see how Congress has the authority to superimpose a different standard of reasonableness, so long as the age and residency requirements are uniformly applied throughout the State to all persons. In summary, it is my opinion that, whether Congress chooses to deal with residency, age, or literacy requirements, it may do so only to the extent of providing that State law must be uniformly applied within the State and its political subdivision to all persons. Beyond that, barring a constitutional amendment, the power of the States to determine for themselves what the specific nondiscriminatory qualifications should be remains exclusively a State prerogative. With kind regards. Sincerely, DONALD J. FARAGE. DUKE UNIVERSITY LAW SCHOOL Hon. SAM J. ERVIN, Jr. DURHAM, N.C., March 17, 1962. Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. MY DEAR SENATOR ERVIN: This is an answer to your letter asking for my opinion about the constitutionality of S. 480 and S. 2750. I believe that either bill, if enacted into law and challenged in the courts, would rightly be held to be consistent with the Constitution. The two bills differ in important respects, but both would amend 42 U.S.C. 1971 to make it provide in effect that no person otherwise qualified shall be denied the right to vote because of a literacy test if he has completed the sixth primary grade in school. S. 480 applies to voting in all elections; S. 2750 does not apply to State elections in which the ballot lists no candidate for President, Vice President, presidential elector, Senator, or Representative. S. 480 relates to official action only (although, as United States v. Raines, (362 U.S. 17) (1960) indicates, provisions of subsection (a) of 42 U.S.C. 1971. which S. 480 would not change may extend to private action); S. 2750 would expand a provision of subsection (b) which forbids private action as well as official action interfering with the right to vote. (Subsections (a) and (b) of 42 U.S.C. 1971 are, and thus S. 480 and S. 2750 would be, implemented by the provisions for preventive relief in subsections (c), (d), and (e), added to section 1971 by the Civil Rights Acts of 1957 and 1960.) Under S. 480, the sixth primary grade must be completed in a school "accredited by any State or by the District of Columbia"; under S. 2750 the school may be "any public school in any State or territory, the District of Columbia, or the Commonmealth of Puerto Rico," and the inclusion of schools in Puerto Rico is explained by a congressional finding that "lack of proficiency in the English language provides no reasonable basis for excluding * * * from participating in the democratic process" citizens of a State educated "in a part of the United States in which the Spanish language is commonly used." Discussing S. 480 first, I shall refer to and quote from opinions in Supreme Court decisions which explicitly recognize that the 14th and 15th amendments grant to Congress powers which I believe the courts would rightly hold enable Congress to make applicable to all elections a requirement that the States treat completion of the sixth grade in school as satisfying a literacy test. I shall state why I believe the courts would rightly uphold such a requirement even in the case, covered by S. 2750, of a citizen illiterate in English who has completed the sixth grade in a Puerto Rican school in which Spanish was the medium of instruction. I shall then discuss S. 2750 and the constitutionality of subsection (b) of 42 U.S.C. 1971 as it would read if S. 2750 were enacted. Although S. 2750 is entitled "A bill to protect the right to vote in Federal elections * * *," its provisions (including its definition of "Federal election") actually would protect the right to vote, at an election in which a candidate for presidential elector or Senator or Representative is listed on the ballot, for a candidate for any office whatsoever (including any State office). Because 1 believe Congress will rightly be held by the courts to have power under the 14th and 15th amendments to make the "sixth-grade provision" (and its Spanishlanguage variant) applicable to all elections, I deem it unnecessary to discuss whether Congress could validly enact such provisions under the power conferred upon it by section 4 of article I to "make or alter" State regulations of the "manner of holding elections for Senators and Representatives." Past decisions of the Supreme Court have not, I believe, explicitly recognized that the Constitution (1) grants to Congress powers which enable it to enact 42 U.S.C. 1971(b)'s present prohibition against private action, not under color of law, insofar as that prohibition applies to interference with the right to vote for a presidential elector, or (2) grants to Congress powers which enable it (i) to extend that prohibition, as S. 2750 would, to the right to vote for a candidate for any State office at a State election in which a presidential elector or Senator or Representative may be voted for, or (ii) to enact, as S. 2750 would, other prohibitions against purely private action which would be a "deprivation of the right to vote" (if purely private action would be such a deprivation, as it might be under S. 2750's definition of that term). Nevertheless I believe, for reasons I shall state, that principles established by past Supreme Court decisions about different but analogous questions would rightly lead the courts to uphold the validity of all applications of 42 U.S.C. 1971 (b) as it would read if S. 2750 were enacted. S. 480 (AND S. 2750's SPANISH-LANGUAGE VARIANT OF THE "SIXTH-GRADE 1. Summary of the bill's provisions PROVISION") Section 2 of S. 480 would amend subsection (a) of 42 U.S.C. 1971. That subsection now provides that all citizens otherwise qualified to vote at any election shall be entitled and allowed to vote "without distinction of race [or] color." S. 480 would add: "and without subjection to any arbitrary or unreasonable test, standard, or practice with respect to literacy," defined as "any requirement designed to determine literacy, comprehension, intelligence, or other test of education, knowledge, or understanding, in the case of any citizen who has not been adjudged an incompetent who has completed the sixth primary grade in a school accredited by any State or by the District of Columbia." Subsections (a) through (d) of section 1 of S. 480 set forth congressional findings. In (a), Congress finds "that the right to vote is fundamental to free. democratic government," and that it is "the responsibility of all Federal Government to secure and protect this right against all unreasonable and arbitrary restrictions." The essence of (b) is a finding "that tests of literacy have been used extensively as a device for arbitrarily and unreasonably denying the right to vote to otherwise qualified persons on account of race or color." The essence of (c) is a finding "that a literate electorate can be assured by affording the right to vote to any otherwise qualified person who has completed six grades of education; and that any test of literacy that denies the right to vote to any [such] person ** * is arbitrary and unreasonable." In (d) Congress finds and declares the enactment of S. 480 "necessary to make effective the guarantees of the Constitution, particularly those contained in the 14th and 15th amendments, by eliminating or preventing arbitrary and unreasonable restrictions on the franchise which deny "the right to vote to persons with at least six grades of education and which exist * * to effectuate denials of the right to vote on account of race or color." 2. Constitutional limitations on the States' reserved power to prescribe qualificafications for voters in State elections The Constitution explicity recognizes, in section 2 of article I and in the 17th amendment, that the States have power to "prescribe the qualifications requisite for electors of the most numerous branch of the State legislature." These constitutional provisions implicitly recognize that a much broader power was not given up by the States when the Constitution was adopted, the power to prescribe the qualifications requisite for electors in all State elections. But as the 10th amendment emphasizes, under the supremacy clause of article VI: (1) all powers reserved to the States are subject to the prohibitions imposed by the Constitution on the States and (2) State laws enacted under a reserved power are invalid to the extent that they conflict either (a) with one of those prohibitions, or (b) with an act of Congress passed in the exercise of a power delegated to Congress by the Constitution. The unanimous opinion of the Court in Lassiter v. Northampton Election Board, 360 U.S. 45 (1959), in holding that the North Carolina statute requiring a literacy test was not invalid on its face (360 U.S. at 53f.), stressed these constitutional limitations on the States' reserved power to prescribe the qualifications requisite for electors in State elections: "*** the right of suffrage ** * 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. See United States v. Classic, 313 U.S. 299, 315. [360 U.S. at 51.] "We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote an intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex ***. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards. [360 U.S. at 51-53.] "Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the 15th amendment was designed to uproot. No such influence is charged here. On the other hand, a literacy test may be unconstitutional on its face *** Davis v. Schnell, 81 F. Supp. 872, affirmed 336 U.S. 933. The present requirement *** seems to us to be a fair way of determining whether a person is literate, not a calculated scheme to lay springes for the citizen. Certainly we cannot condemn it on its face as a device unrelated to the desire of North Carolina to raise the standards for people of all races who cast the ballot." [360 U.S. at 53-54.] The Court thus clearly recognized in its unanimous opinion in the Lassiter case that State literacy requirements are constitutionally invalid (1) if they "contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed," (2) if they are either "discriminatory" as written, or constitute "a calculated scheme" to achieve discrimination, or are "employed to perpetuate *** discrimination," and therefore violate the 15th amendment or the equal protection clause of the 14th amendment, or (3) if they have no "relation to standards designed to promote an intelligent use of the ballot" or, the opinion implies, as the Court expressly stated in a unanimous 1954 opinion, no relation to standards designed to promote some other "proper governmental objective," and therefore constitute "an arbitrary deprivation of *** liberty in violation of the due process clause." Bolling v. Sharpe, 347 U.S. 497, 500 (1954). 3. The power of Congress to impose, pursuant to the 14th and 15th amendments, restrictions upon the States' reserved power to prescribe qualifications for voters in State elections. Ex parte Virginia and the Civil Rights cases Congress is given power by section 5 of the 14th amendment and by section 2 of the 15th amendment to enforce the provisions of those amendments by "appropriate legislation." The Supreme Court has held that these grants of power are to be construed as broadly as the Constitution's other grants of power to Congress have been construed since McCulloch v. Maryland, 4 Wheat. 316 (1819); that it is not the courts alone that are empowered to determine what rights are protected against State action by the 14th and 15 amendments; and that these grants of power authorize Congress to insure by "legislation that is appropriate, that is, adapted to carry out the objects the amendments have in view" that rights thus specified by Congress as rights secured by the amendments shall be accorded recognition by the States. See Ex parte Virginia, 10 U.S. 339, 345f. (1880), where the Court said (with the emphasis indicated): "All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the General Government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the Government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." It was an act of Congress, not a judicial decision, that first determined that the 14th amendment conferred upon Negroes the right upheld in Ex parte Virginia. By section 4 of the Civil Rights Act of 1875, Congress had provided that "no citizen *** shall be disqualified for service as grand or petit juror in any court *** of any State, on account of race, color, or previous condition of servitude," and had made it a criminal offense for a person charged with selecting jurors to "exclude or fail to summon any citizen for the cause aforesaid.” Ex parte Virginia thus held that the power granted to Congress by the 14th and 15th amendments included not merely power to provide statutory sanctions designed to make effective rights determined by the judiciary to exist because of those amendments, but also power to specify and define by "appropriate legislation" what rights the amendments protected and to provide sanctions for those legislatively determined rights. In the Civil Rights Cases, 109 U.S. 3 (1883), the opinion of the Court again considered the power of Congress to enforce the 14th amendment. The rights and privileges that amendment guarantees, the Court said, "* ** are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon supposed State laws or State proceedings, and be directed to the correction of their operation and effect ***. [109 U.S. at 11.] “*** Of course, legislation may, and should be, provided in advance to meet the exigency when it arises; but it should be adapted to the mischief and the wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment." [109 U.S. at 13.] The reference in the Court's unanimous opinion in Lassiter v. Northampton Election Board, 360 U.S. 45, 51 (1959) to "any restriction that Congress, acting pursuant to its constitutional powers, has imposed" on the prescription by States of standards limiting the right of suffrage is shown by these quotations from the opinions of the Supreme Court in Ex parte Virginia and in the Civil Rights Cases to be a recognition of a congressional power to enact legislation "directed to the correction of [the] operation and effect" of "supposed State laws or State proceedings" "adverse to the rights of the citizen secured by the [14th or 15th] amendment" (Civil Rights Cases, quotation above). These "rights of the citizen" under the two amendments include not only rights already held by the judiciary to be secured by those amendments, but also other rights which Con ** gress has specified in "legislation [which] is appropriate, that is, adapted to carry out the objects the amendments have in view, *** [which] tends * to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion ***." (Ex parte Virginia, quotation above). 4. The courts would rightly hold that the "sixth-grade provision" of S. 480 is "corrective legislation" which is "adapted to carry out the objects the [14th and 15th] amendments have in view” and is therefore valid. The congressional findings set forth in section 1 of S. 480 summarized in "1" above, relate to "legislative facts," not to "adjudicative facts." Cf. Garner v. Louisiana, 368 U.S. 157 (1961). The courts, in deciding upon the validity of section 2 of S. 480, would take judicial notice of these facts even in the absence of these congressional findings. They are well-known facts. See the Reports of the Civil Rights Commission. As Mr. Justice Harlan said in his concurring opinion in Garner, 368 U.S. at 195: **** this Court has many times taken judicial notice of well-known economic and social facts * * *," citing, inter alia, West Coast Hotel Co. v. Parrish, 300, U.S. 379, 398-400 (1937). See, in general, Karst, Legislative Facts in Constitutional Litigation, 1960, The Supreme Court Review 75. So obvious and so cogent are the arguments these facts supply in support of the proposition that the "sixth grade provision" of S. 480 is "corrective legislation" which is "adapted to carry out the objects of" the 15th amendment and of the equal protection clause of the 14th amendment that it seems wholly unnecessary to spell them out or argue their cogency. The Supreme Court has invalidated very few acts of Congress since 1938. It has demonstrated unmistakably in the white-primary cases, in the jury-discrimination cases, and in other cases involving Negroes that "calculated schemes" to achieve discrimination and State statutes "employed to perpetuate * * * discrimination," Lassiter v. Northampton Election Board, 360 U.S. at 53-54 (1959), call for corrective action by the courts. It is unthinkable that the Court would hold that the "sixth grade provision" does not result from an "allowable judgment" by Congress that such a provision is valid "corrective legislation" authorized by the amendments. 5. S. 2750's extension of the "sixth grade provision" to citizens whose medium of instruction in Puerto Rican schools was the Spanish language, though they are illiterate in English, would rightly be held valid for similar reasons. The second part of this statement is devoted to S. 2750; this first part has until now been confined to S. 480. The Spanish language school variant of the "sixth grade provision," contained in S. 2750, however, raises questions so similar to those raised by S. 480's "sixth grade provision" that its validity will be considered here. Relevant congressional findings, set forth in section 1 of S. 2750, are summarized under the first subheading in "II" below. The decisive question is not the wisdom or desirability, as a legislative question, of this provision of S. 2750. Arguments can be made that pressures to make all citizens English speaking are desirable because they promote "assimilation." But the holding in Meyer v. Nebraska, 262 U.S. 390 (1923), warns against deeming such arguments so cogent that they will induce courts to hold that this provision did not result from an allowable judgment by Congress. With reason, Congress may decide (even if the courts would not, in the absence of an act of Congress) that justice to Spanish-speaking citizens of the several States who were educated in Puerto Rico requires that they not be deprived of the right to vote by being classed with illiterates because they can speak and write little or no English. If Congress does enact S. 2750, I believe that the Supreme Court would rightly hold this provision to be permissible "corrective legislation" securing a right which Congress by an allowable judgment has specified as one conferred by the equal protection clause. The Court might well base such a holding on a different ground, that a congressional determination "correcting" State disqualification of citizens literate only in Spanish because they were educated in Puerto Rico is an allowable judgment that such a disqualification has no "relation to standards designed to promote an intelligent use of the ballot," Lassiter v. Northampton Election Board, 360 U.S., 45, 51 (1959), and no relation to any standard designed to promote some other "proper governmental objective," and therefore constitutes "an arbitrary deprivation of *** liberty in violation of the due process clause." Bolling v. Sharpe, 347 U.S. 497, 500 (1954). Cf. Meyer v. Nebraska, 262 U.S. 390 (1923). |