"No person, whether acting under color of law or otherwise shall by arbitrary action, and no public officer, Federal or State, or other person acting under color of law shall by arbitrary action or inaction, deny, abridge * * With every good wish, I am, ARTHUR E. SUTHERLAND. HASTINGS COLLEGE OF LAW, UNIVERSITY OF CALIFORNIA Hon. SAM J. ERVIN, Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: We have your letter of February 12, 1962, requesting our comments on S. 2750 and S. 480, and, in the paragraph third from the end of your letter on the constitutionality of a statutorily created presumption of literacy. In our opinion, the provisions of section 2 of article I of the Constitution, and of section 1 of amendment XVII, preempt the field, so far as the qualification of voters for Representative and Senator are concerned. These provisions leave the States free to determine those qualifications, by the process of setting the qualifications of voters for members of the most numerous branch of the State legislature. When the States have done this, in compliance with the 15th amendment as to race, etc., and in compliance with the equal protection provision of the 14th amendment, that would seem to set the qualifications of voters for Representatives and Senators, and leave no room for congressional action. From what we have said, it would follow that a State can set whatever standard of literacy it pleases. It must of course administer its standard in compliance with the constitutional requirements referred to above. The provision that a sixth grade education in the Spanish language shall qualify a voter infringes, in our opinion, on the constitutional right of the State to determine the qualifications of voters. The 15th amendment does not forbid States from requiring literacy in English as a qualification for voting. And it is hardly conceivable that a requirement of literacy in the official language of a State and of the Nation would be regarded as a denial of the equal protection of the laws to those not literate in that language. As to qualifications for voting for electors who in turn vote for the President and Vice President, article II of the Constitution, and the 12th amendment, lodge that determination in the States. Congress may not regulate it, except in the enforcement of the 15th amendment and the equal protection provision of the 14th amendment. As to the validity of the suggested statutory presumption of literacy, mentioned in your letter, it follows from what we have said that such a provision would have no room for application, since the presumed fact is irrelevant to anything which Congress could, under the Constitution, regulate by legislation. We take note of the proposed findings of Congress that literacy tests for voting are susceptible to misuse and have in fact been misused to accomplish unconstitutional objectives, in regard to the subject here under discussion. In 1957 and 1960 important improvements were made in the enforcement procedures applicable to the existing statutes. There has not been time for an adequate test of the effectiveness of those improved procedures. It may be that they will, to a considerable extent, eliminate the present unconstitutional administration of the present State literacy tests, in the States where such maladministration occurs. If experience should demonstrate that it is impossible, or largely impossible, to enforce the 15th amendment so long as literacy tests, applied without Federal restrictions, are permitted, we should want to reconsider our position concerning statutes such as the ones submitted for our comment. The 15th amendment is fundamental, and Congress has the power to make it effective. But the proposed legislation seems to us to collide with the constitutional provisions as to eligibility to vote. Those constitutional provisions ought not, in our opinion, to be eroded, except upon a convincing demonstration that adherence to their text and their natural meaning in fact denies to citizens the rights which the 15th amendment guarantees to them. We appreciate your having given us the opportunity to express our views. Would you be good enough to see that we get three copies of your committee's hearings, when they are printed? We will place one copy in the law school library. Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: We appreciate your giving us an opportunity to comment on S. 2979, which is under consideration by your subcommittee. May we refer you to our letter of February 28, 1962, in which we commented on S. 2750 and S. 480. Our comments in that letter seem to us to be applicable to S. 2979. Some of the States, at the time of the adoption of the Constitution, and at the time of the adoption of the 14th and 15th amendments, had qualifications for voting other than those permitted by section 2(b) of S. 2979. We think they would still be permitted by the Constitution to have such other requirements, so long as there were none which collided with the 14th and 15th amendments. Our views as to the literacy tests proposed in section 3 of S. 2979 were expressed in our former letter. We see no objection to section 4 of S. 2979. This seems to come under Congress' power to supervise elections for Federal officers. Section 5 (a) of S. 2979 would seem to be unobjectionable. We might add that the use of the word "reasonable" in section 2(b) (1) and (2), lines 24 and 25 of page 2 of the draft, would present troublesome questions of interpretation, if a State imposed requirements in these regards, which were different from those ordinarily imposed. Chairman, Subcommittee on Constitutional Rights, DEAR SENATOR ERVIN: I have your letter of February 12 asking the views of constitutional law professors respecting the constitutionality of the provisions of the pending bills, S. 480 and S. 2750. Your letter states the basic rules which govern this problem of constitutionality. The Constitution contemplates that the States shall retain power to establish voter qualifications. On the other hand no State may deprive any person of the right to vote without due process of law. A State would violate due process if it deprived any person or class of persons of voting rights arbitrarily, or by unjust discrimination, or without some reasonable basis. Lassiter v. Northampton Election Bd., 360 U.S. 45 (1945), makes it clear that a literacy test for voters would not violate due process provided the test is applied on a nondiscriminatory basis. Congress, however, has found, on persuasive evidence, that, in practice, literacy tests have been used extensively to discriminate unreasonably between Negro and white voters, inasmuch as Negro voters have been subjected to more difficult tests than have the white. Under the circumstances, I believe Congress would be well within its power, under paragraph 5 of the 14th amendment, to implement the due process clause if it prescribed sixth grade education in an accredited English-speaking school as an objective standard of literacy. S. 2750 goes considerably beyond this. It would also prescribe that sixth grade education, even in a foreign language school (e.g., an accredited Spanishlanguage school in Puerto Rico), must be accepted as compliance with the language proficiency as well as the literacy test of any State. In effect, this would deny to any State the power to impose proficiency in English as a qualification for voters. If Congress were to enact this provision, I believe it would be usurping the power explicity reserved to the States to determine the qualifications of electors in their respective elections. I disagree heartily, and any State legislature may fairly and justly disagree, with the recital or implication of S. 2750 that citizens who read, speak, and understand only Spanish are, generally speaking, as well qualified as those proficient in English to exercise the voting franchise. I further disagree with the recitals "that such information as is necessary for the intelligent exercise of the franchise is available through Spanish-language news sources," and "that lack of proficiency in the English language provides no reasonable basis for excluding these citizens from participating in the democratic process." To me, it seems ordinary commonsense that ignorance of the English language would tend to handicap any voter in this country from understanding campaign issues and the qualifications of candidates. The relatively limited Spanish-language news sources cannot be expected to give as broad coverage to campaign issues and candidates as English-language sources. Moreover, a State legislature might reasonably find that campaigners would be unduly burdened if they were under duress to duplicate their broadcasts in Spanish as well as English, and to meet all the challenges posed by Spanish-language publications as well as English. If a State wishes to enfranchise their foreign-language citizens, regardless of proficiency in English, it would certainly be within their power to do so; but they would not be acting arbitrarily or unjustly if they elected not to do Under the Constitution, the States should have the freedom to make their own rules in the matter and Congress should not repress that freedom. The rule that might be best for New Mexico may not be appropriate for Maine or New York. SO. Respectfully, RICHARD V. CARPENTER, MICHIGAN UNIVERSITY LAW SCHOOL Hon. SAM J. ERVIN, Jr., ANN ARBOR, MICH., February 26, 1962. Chairman of the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: In your letter of February 13 you request my opinion concerning the constitutionality and desirability of two bills, which have been introduced in the Senate, 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. I have had no opportunity to research thoroughly the constitutional questions raised by these measures, but I am familiar with the general area and the basic question of constitutional power involved, and I submit my analysis and comments for what they may be worth. Both of the proposed bills have one central feature in common, and that is that they are directed against the use of tests, presently used in a number of States, which are designed to test literacy or knowledge and comprehension as a qualification for voting. Each of these bills would in effect, outlaw literacy tests in the case of persons who have not been judged mentally incompetent and who have completed the six primary grades of school education. Or, to put the matter another way, under either of these bills a State could disqualify a person from voting on the basis of a literacy test (as broadly defined by the bills) only if he has failed to complete the sixth grade or has been adjudged mentally incompetent. There are, however, some differences between the two bills. S. 2750 would be applicable only with respect to voting in Federal elections, whereas S. 480 would be applicable to all elections, whether Federal, State, or local. Under S. 2750, an otherwise qualified voter may not be disqualified from voting on the basis of a literacy test if he has completed the sixth primary grade in either a 82715-62- 41 public school or an accredited private school in any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico, whereas under S. 480 a similar limitation would be applicable only with respect to persons who have completed the sixth grade at any public school or accredited private school in any State or the District of Columbia. Under S. 480, a person who had completed the six primary grades in Puerto Rico would be subject to a literacy test imposed by State law and would be disqualified if he could not read or write English as required by such law. Before taking a closer look at the constitutional questions raised by these proposals, consideration must be given to the sources of congressional power to deal with problems relating to qualification of voters. Under article I of the Constitution the States have the power to prescribe qualifications for electors voting for the most numerous branch of the State legislature and for Representatives in Congress. Likewise, under the 17th amendment, the qualifications of electors to vote for the U.S. Senate are determined by State law. On the other hand, under article I of the Constitution the Congress has the paramount power to make regulations respecting the time. place, and manner of holding congressional elections. It seems clear from opinions of the Supreme Court that the congressional power over Federal elections is not limited to the regulation of the time, place, and manner of elections. It extends to the entire electoral process in respect to Federal officers. Moreover, the Supreme Court has held that the right to vote for Representatives and Senators is a federally created right, stemming directly from the Constitution and Congress, therefore, has the implied power to safeguard the exercise of this right. Nevertheless, the Constitution does also make clear that the qualification of electors is determined by State law, and in view of this explicit constitutional provision, it must be concluded that the breadth of the congressional power over Federal elections does not include power to override State-prescribed qualifications or to substitute federally prescribed qualifications in their place. The Supreme Court decision sustains an assertion of congressional power. If what a State requires by way of voting eligibility is not really a qualification within the sense of the Constitution, but goes to another matter which is subject to the paramount Federal control over the electoral process in respect to Federal officers or interferes with the federally created right to vote, it is subject to congressional control and regulations. Likewise, if a State-imposed qualification violates the express prohibitions of the 15th and 19th amendments or otherwise arbitrarily discriminates in classifying persons eligible to vote in violation of the equal protection clause of the 14th amendment, it ceases to have any validity as a qualification, and Congress may act in an appropriate way to enforce the right to vote free from such a qualification, and in this case, it is not limited to protecting the right to vote in Federal elections, since the 14th, 15th and 19th amendments operate to invalidate any restrictions on the right to vote, whether in Federal or State elections, which violate the limitations imposed by these amendments. Turning to the questions raised by literacy tests required by State law as a condition to voting, it seems clear that proof of literacy as a condition to registration for voting is appropriately characterized as a qualification within a State's power to impose under the authority reserved to the States under article I. It seems to me that this question was put to rest by the Supreme Court's decision in Lassiter v. Northampton Election Board (360 U.S. 45), where the Court held that the imposition of a literacy test by the State of North Carolina came within the State's power to prescribe qualifications, and that absent any showing that the test was applied in an arbitrary or discriminatory way, such a qualification did not violate the 14th amendment. As I understand the holding in Lassiter, it means that a literacy test goes to the matter of qualification over which States have control under article I (and also the 17th amendment) and that such a qualification, as long as it is not unreasonable or discriminatory on its face, does not violate the 14th amend ment. In view of this I fail to see how Congress has any authority under its article I powers to legislate against State-imposed literacy tests in their application to Federal elections. On the other hand, it seems clear also that the Lassiter case does not resolve all the questions raised by the proposed Federal legislation. In Lassiter the Court was dealing with the literacy test imposed by the State of North Carolina. The Court's holding in effect was that the test imposed by North Carolina law was not invalid on its face. In short, a literacy test as such comes within a State's power to prescribe qualifications and is not constitutionally subject to attack unless because of features that make it unreasonable or discriminatory on its face or because it is administered in a discriminatory way. A State-imposed qualification, valid on its face, become invalid if administered or enforced in a discriminatory way so as to violate either the equal protection requirement of the 14th amendment or the explicit requirement of the 15th amendment that the right to vote shall not be abridged because of race or color, or of the 19th amendment forbidding abridgement of the right to vote because of sex. This brings us then to what I regard as the possible constitutional basis of Federal legislation outlawing the use of literacy tests as the ground for disqualification of persons who have completed the sixth grade in school and who are otherwise qualified to vote. Congress has the power to enforce the 14th, 15th, and 19th amendments, and at this point we may concentrate particularly on the 14th and 15th amendments since it appears that the chief objection to the literacy test is that it is used as a means of discriminating against Negroes. Although the congressional power to enforce the 14th and 15th amendments is not to be confused with the Supreme Court's power to interpret the meaning of these amendments, it is nevertheless true that the enforcement power is a broad one and that pursuant to it Congress may employ appropriate measures to end State-sanctioned practices that result in discrimination in the exercise of the voting right on the basis of race or color. Recent Federal civil rights legislation attests to the breadth of this power. In view of the Lassiter holding that a literacy test properly serves a qualification purpose and is not invalid unless unreasonable or discriminatory on its face or in its application, the only ground for congressional intervention aimed at outlawing such tests is a finding and determination by Congress that these tests are subjective in nature and lend themselves to a practice of administrative discrimination, that they are administered in a discriminatory way and that the only effective remedy for dealing with these discriminatory practices is to prohibit the use of these tests altogether, at least as to persons who have completed the sixth grade in school. Such a theory of congressional power to deal with this question would extend this power further than has been recognized to date, and would require a very liberal interpretation of the power to enforce the 14th and 15th amendments. To authorize Federal courts to enjoin enforcement of literacy tests in a given community when shown to be administered in a discriminatory way or to enjoin election officers from discriminatory enforcement of these tests or to require the registration of a person who has been disqualified because of discriminatory enforcement of such a test are all remedies that would be appropriate to meet proven discriminatory application of literacy tests. It is quite another matter, however, to outlaw all literacy tests in all States as a means of coping with the problem of discriminatory enforcement in some areas. As stated above, such a drastic remedy to meet the problem of discriminatory enforcement must rest on findings by Congress that these tests lend themselves to discriminatory application, that, in fact, they are frequently used in a discriminatory way and that the only practical solution to the problem of discrimination resulting from these tests is to eliminate them altogether. Since literacy tests usually afford some discretion to the local officials conducting the test and in some cases are of a character that admit wide discretion in their application and grading, it would not be difficult to establish the proposition that these tests by their nature lend themselves to discriminatory application. Furthermore, evidence is available through the reports of the Civil Rights Commission and other sources, that, at least in some areas, these tests are administered in such a way as to discriminate against Negroes. Whether to correct this situation it is necessary to outlaw these tests in all States, including States where no charge of discriminatory application can be sustained, is the critical question. Certainly Congress could stop short of such a drastic remedy by confining relief to situations and areas where discriminatory use is made of these tests. Or, Congress in the alternative could prohibit the use of tests which place substantial administrative discretion in local officials. Actually the proposed legislation does not prohibit the use of literacy tests altogether. It prohibits their use to disqualify persons who have completed the sixth grade of school. I am not clear, however, that this contributes to strengthen the proposed legislation so far as constitutionality is concerned. Indeed, this feature raises new problems. The very fact that Congress would |