standard of a sixth grade certificate is a way in which people can be protected against the discriminatory use of State literacy tests.

Senator JOHNSTON. You are putting a limitation on the State, though.

Senator JAVITS. You are putting on a limitation. And the cases from Yarbrough right through Lassiter approve of the proposition that a limitation may be put on where it is necessary in order to carry out the 15th amendment.

Senator HRUSKA. Would the Senator yield?

Senator JOHNSTON. I think you are entirely right, if it discriminated against any class of people. But your bill doesn't state that at all. It doesn't go into that field at all. Therefore, I think it is unconstitutional.

Senator JAVITS. Well, the Senator is entitled to his judgment. I deeply feel that the cases sustain this position and that the facts sustain this position. I feel we derive our support from the line of cases to which I referred. And I would also suggest to the Senator that the opinion of the Attorney General of the United States is not an inconsiderable element in our consideration. He is also a lawyer. That doesn't mean that his opinion is holy or inviolate. But it is the opinion of the Attorney General of the United States that this statute is constitutional and reasonably adapted to serve as the means for effectuating a legitimate purpose.

Senator ERVIN. Here is where you and I reach a diametrically opposite position with respect to your bill. The operative part of your bill, section 1, does not undertake any way, by any syllable in it, to prevent discrimination on the basis of race, color, or previous condition of servitude. I can't reconcile it with decisions-many decisions of the courts, and one was Karem v. United States, which was an opinion of the sixth circuit. I use it because it states the proposition so clearly:

The 15th amendment is therefore a limitation upon the powers of the States in the execution of their otherwise unlimited right to prescribe the qualifications of voters in their own elections, and the power of Congress to enforce this limitation is necessarily limited to legislation appropriate to the correction of any discrimination on account of race, color, or condition. The affirmative right to vote in such elections is still dependent upon and secured by the Constitution and laws of the State-the power of the State to prescribe qualifications being limited in only one particular, the right of the voter not to be discriminated against in such elections on account of race or color is the only right protected by this amendment, and that right is a very different rigth from the affirmative right to vote. There are certain very obvious limitations upon the power of Congress to legislate for the enforcement of this article

that is the 15th amendment.

First. Legislation authorized by the amendment must be addressed to State action in some form, or through some agency.

Your bill so satisfies that first condition. But the second condition is this:

It must be limited to dealing with discrimination on account of race, color, or condition.

Now, there is not a thing in the operative part of your bill which is limited to dealing with discrimination on account of race, color, or condition. But it is limited to discrimination based upon literacy, which as the Supreme Court said in the Lassister case is neutral as to race and color.

Senator JAVITS. Well, I must say that I find myself completely at odds with the Senator. He is a lawyer, entitled to his view. But I would like to point out that none of these bills, in their operating clauses, does what the Senator desires, and if they did, they would defeat their very purpose.

The purpose of these bills is to establish a uniform standard to prevent discrimination, which discrimination, on the ground of race or color, is found as a fact within the terms of the 15th amendment in every one of these bills. Therefore, having found that as a fact, the Congress, I am arguing, has the right to establish a standard test as a conclusory one, without any regard to the State tests which can continue to be enforced, provided that in the final analysis, they accept this one, which the Congress has established as a means for preventing the discrimination which is forbidden by the 15th amendment. And therefore every one of these bills is exactly the same in that respect none of them condition their operation upon the existence of discrimination in the voting right in each instance, because, if they did, they would be self-defeating. The inadequacy of a caseby-case approach is precisely why we now have to enact a uniform standard.

Senator ERVIN. I hate to disagree with the Senator so much, but I say there is a very wide distinction between the Senator's bill, that is, 480, and 2750 on this point. The other bill is restricted to what may be called Federal elections, and it attempts to proceed fundamentally under the other provisions of the Constitution relating to Senators and Congressmen. It does have the same preambles as the Senator's bill has. But the Senator's bill quite clearly attempts to regulate this matter in respect to State elections as well as Federal. And only the 15th amendment applies to State elections. The decisions of the court have held and I am quoting:

But the power of Congress to legislate at all upon the subject of voting in pure State elections is entirely dependent upon the 15th amendment.

Senator JAVITS. That is exactly right. The Senator has now moved away from the point that these bills don't state that you must discriminate in order to bring about the application of the uniform test. The Senator is now saying that my bill applies to elections generally, and the other bills apply to Federal elections only, which is a very different point. And I say in answer to that, that the 15th amendment applies to all elections, and, therefore, my bill applies to all elections.

Now, if the other gentlemen choose to confine their bills to Federal elections, that has nothing to do with the power of the Congress. And all we are considering now is the power of the Congress. The Congress may choose to apply this measure only to Federal elections. But the Congress need not do that.

Senator ERVIN. Well, the Senator and myself are in very wide disagreement, because the courts hold that the power to legislate in State elections is based solely upon the 15th amendment. Of course, we might add now the 19th. The courts have held in numerous cases, as in the one I have just read, that no legislation under the 15th amendment is valid unless it is legislation which is designed to prevent discrimination on account of race, color, or previous condition of servitude.

Now, the operative part of the Senator's bill doesn't have the slightest reference to that, and, therefore, the Senator is trying to legislate generally in the field of literacy tests, upon the basis of the 15th amendment, which does not support any such legislation.

Senator JAVITS. The Senator from New York points out that none of the other bills do either, and the distinction which the chairman makes as to their applying to Federal elections is not the distinction which he is arguing about now. The 15th amendment, precisely as I have said, does apply to all elections. Therefore, the operative section constitutes a means of enforcing the 15th amendment, and that means need not again refer to the discrimination which requires us to fix the standard test.

Now, we will have plenty of time and I am willing to stay here all day if the Senator wishes me to-to discuss this matter on the floor. But it just seems to me that the Senator and I are not meeting in the argument. The Senator is kind of passing me by-perhaps he feels the same way about me.

Senator ERVIN. Let me ask the Senator. Does not the Senator agree with me in the opinion-I am not talking about anything except the phraseology of these bills now-does he not agree that under the phraseology of S. 2750 that the only elections that are attempted to be dealt with there are elections that are popularly called Federal elections?

Senator JAVITS. The Senator doesn't even agree with that, because the bills state as follows, not that it matters in the argument, but because the Senator wants my interpretation of the language of these statutes. I am reading now from page 3, lines 11 and 12, of S. 2979; and I am reading also from page 3, lines 22 and 23, of S. 2750:

Federal election means any general, special, or primary election held solely or in part for the purpose of electing or selecting—

and so on.

Now, it seems to me that that clearly contemplates that if it is just one election that is being held, then it will cover the whole electoral process no matter what offices are being filled. So I don't think even those bills purport to confine themselves strictly and absolutely to Federal elections. And again I point out that this is not the point the Senator is making at all. The Senator's point, as I understand it, is that these bills are required to make the operative section apply only if discrimination is proved. And I say that the Congress doesn't have to do that-once it finds that there is a general pattern of discrimination on the grounds of race or color for which literacy tests are being used. Now, that is the fundamental issue between us.

Senator ERVIN. I understand the Senator to state that it is his considered opinion that there is no difference in substance between section 3 of S. 2979, and section 2 of S. 2750, and section 2 of his bill.

Senator JAVITS. This is a totally different question, and there is a difference in substance. The difference is that the State could run a separate election for State and Federal offices under the other bills; but under my bill, whether it did or did not, it would be bound in both elections.

Now, that is the difference. There is a difference in substance. But what the Senator asked me before is whether these bills applied solely

to Federal elections. And I said I didn't even agree with that, because the words "solely or in part" qualify even that judgment.

Senator ERVIN. Now, let's see if we can't agree on some English. Is it not true that under S. 2750, that there is no effort to legislate as to any voter except to the extent that voter participates in voting for Federal officials.

Senator JAVITs. If any part of an election is voting for Federal officials, then it applies to the whole election.

Senator ERVIN. Well, I don't think the Senator and I can agree. But I can show you many decisions where indictments have been quashed because they failed to allege that a man who voted at an election in which voting for Federal officials and State, cast his vote solely for Federal officials.

Senator JAVITS. Well, if the Senator will show me the decisionsand he will have to show me the statutes upon which the decisions were based. I am talking about S. 480, my bill, as contrasted with the other bills. That is the only thing I am talking about. And that would then be the operative statute.

Senator ERVIN. I just received notice the Senate is taking up the Holland amendment.

Senator JAVITS. I have to go, Mr. Chairman, if I may. I have an amendment to that bill as the Chair knows. I will be glad to come back if the Chair desires me to.

Senator ERVIN. You and I have disagreed very frequently on these matters. I had thought we had come to an area of agreement-that we had agreed that your bill referred to all elections, and would regulate all elections, in this respect, and S. 2750 would regulate what we call Federal elections. But I find we don't even agree on that. I am very disappointed we didn't find one area of agreement.

Senator JAVITS. Yes, sir. Thank you, Mr. Chairman.

Mr. CREECH. Mr. Chairman, the next witness is the Honorable Lister Hill, Senator from Alabama.

Senator ERVIN. Senator Hill.

STATEMENT OF HON. LISTER HILL, A U.S. SENATOR FROM THE STATE OF ALABAMA

Senator HILL. Mr. Chairman, I recognize that the Chair and the Senator from Alabama have to go to the floor of the Senate.

May I file my statement with the committee and make this statement-that all one has to do to understand how these bills attempt to do violence to the Constitution of the United States is simply to read the statement of the distinguished chairman of this committee, which was made on the floor of the Senate of the United States on March 15 last. And I want to say that I am unalterably opposed to these bills. There is no basis whatever in the Constitution of the United States, in the 14th amendment or in the 15th amendment, or any authority whatever in any shape, fashion, or form, for the Congress of the United States to pass these bills. I agree wholeheartedly with all that has been said here this morning by the distinguished chairman of this committee, Senator Ervin, of North Carolina, and also by the distinguished member, Senator Johnston, of South Carolina, about these bills.

There is no basis whatever that gives any authority or any power to the Congress to enact this legislation as embodied in these bills. They fly right into the teeth of the Constitution, and into the reserved powers of the States, as has been so well brought out here, in section 2, article I. I thank the chairman.

(The full statement of Senator Hill follows:)

STATEMENT OF SENATOR LISTER HILL IN OPPOSITION TO S. 2750, S. 480, AND S. 2979

Mr. Chairman, I am unalterably opposed to S. 2750, S. 480, and S. 2979. These bills would prohibit the use of literacy tests such as the one we presently have in Alabama and a number of other States to determine whether prospective voters possess the minimum knowledge and comprehension prescribed by the laws of Alabama and the other States as a necessary qualification for voting.

In effect, each of these bills would outlaw existing State literacy tests so far as they apply to prospective voters who have completed the six primary grades of school. Two of the bills, S. 2750 and S. 480, provide exceptions in the case of those adjudged mentally incompetent. No exception is provided under S. 2979. The application for S. 2750 is restricted to those seeking to qualify for voting in Federal elections, while S. 480 and S. 2979 would apply to all elections including State and local elections.

In addition to the State literacy tests, one of the bills, S. 2979, would abolish all other qualifications for voting except those relating to age, residence, legal confinement, or conviction of a felony. This bill would also proscribe interference with the right to vote through arbitrary action or inaction, and would require the Director of the Census to compile voting statistics, by race, color, and national origin.

I am unalterably opposed to these bills because they seek to further restrict the reserved powers of our States to determine the qualifications of their voters. If passed, these bills would constitute a totally unwarranted, unnecessary and unjustifiable invasion of State powers and functions that are secured and reserved to the States by the Constitution.

In short, each of these bills seek to impose a Federal literacy standard on the States. They would supplant any State laws that provide a different literacy requirement for voting than the Federal standard. All of these bills are unconstitutional inasmuch as Congress has no such power over the States.

As we know, at the time the Constitution was written back in 1787, the States had diverse qualifications for suffrage, and almost all of them had property qualifications of one sort or another. In the very beginning, article I, section 2 of the Constitution vested in the State governments the power of fixing the qualifications for voters. This section provides as follows:

"The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite to electors of the most numerous branch of the State legislatures."

How could any language be clearer? It would seem that nothing could be clearer than the language in this section of the Constitution. When we consult Madison's notes, and the other authorities, we find that there were three schools of thought in the Constitutional Convention with reference to the matter of qualifications of electors to vote for Members of Congress.

One school of thought felt that the qualifications should be prescribed in the Constitution itself.

The second school of thought felt that the question should be left to Congress. The third school of thought, which as we know prevailed at the Constitutional Convention, was that the qualifications for the electors should be those fixed by the States for the most numerous branch of the State legislatures.

Congress was not given any power to prescribe the qualifications for voting and this omission was absolutely deliberate. When the Founding Fathers desired to give Congress power to alter State rules with respect to the times, places, and manner of holding elections for Senators and Representatives, they specifically did so in article I, section 4.

Nor can it be argued that the 14th or 15th amendments gave Congress any such power. A check of the record will indicate that when the 14th and 15th amendments were submitted by Congress, there was no thought, no suggestion that Congress could step in and by legislative enactment fix or prescribe the qualifica