RHODE ISLAND PROVIDENCE, February 9, 1962. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. DEAR SENATOR: This will acknowledge receipt of your letter of February 7. 1962, with reference to the proposed Federal legislation dealing with literacy treatment for voters. I have studied the contents of your letter carefully as well as the copies of the two bills proposed in the U.S. Senate, and I must respectfully suggest that, in my opinion, both of these bills are in conflict of spirit and letter of the constitution of this State with reference to voting requirements. The Rhode Island Constitution contains no literacy requirements of any nature whatsoever for voters. As I read the two bills submitted with your letter, there is at least an implication contained in both as to a requirement that a person must have completed the sixth primary grade in order to be assured of his right to vote. In all frankness, I cannot agree with such a policy, but rather, I believe that the constitution of Rhode Island properly treats the matter of voting rights by containing no literacy requirements whatsoever. Trusting that the above may be of some assistance to you, I remain, J. JOSEPH NUGENT, Attorney General. SOUTH DAKOTA PIERRE, March 8, 1962. Mr. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Washington, D.C. DEAR MR. ERVIN: Enclosed herein is a copy of the constitution of South Dakota, article VII of which deals with voting qualifications. As can be seen upon analysis of article VII, this State has no literacy requirements. Thus, Federal legislation concerning such would have no effect on the voters of South Dakota. Yours very truly, A. C. MILLER, Attorney General. ARTICLE VII. ELECTIONS AND RIGHT OF SUFFRAGE SEC. 1. Every person resident in this state, who shall be of the age of twentyone years and upwards, not otherwise disqualified, belonging to either of the following classes, who shall have resided in the United States five years, in this state one year, in the County ninety days, and in the election precinct where such person offers his vote thirty days next preceeding any election, shall be a qualified elector at such election provided; that no elector in the state by reason of having changed his residence from one county or precinct to another shall be deemed to have lost his right to vote at any election in the precinct from which he has moved until he shall have acquired a new voting residence in the county or precinct to which he has removed. First. Citizens of the United States. Second. Persons of foreign birth, who have become naturalized citizens conformably to the laws of the United States, upon the subject of naturalization. (As amended November 1958, pursuant to Ch. 304. Laws of 1957.) SEC. 2. The legislature shall at its first session after the admission of the state into the union submit to a vote of the electors of the state the following question to be voted upon at the next general election held thereafter, namely: "Shall the word 'male' be stricken from the article of the constitution relating to elections and the right of suffrage." If a majority of the votes cast upon that question are in favor of striking out said word "male," it shall be stricken out and there shall thereafter be no distinction between males and females in the exercise of the right of suffrage at any election in this state. SEC. 3. All votes shall be by ballot, but the legislature may provide for numbering ballots for the purpose of preventing and detecting fraud. SEC. 4. All general elections shall be biennial. SEC. 5. Electors shall in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at elections and in going to and returning from the same. And no elector shall be obliged to do military duty on the days of elections, except in time of war or public danger. SEC. 6. No elector shall be deemed to have lost his residence in this state by reason of his absence on business of the United States or of this state, or in the military or naval service of the United States. SEC. 7. No soldier, seaman or marine in the army or navy of the United States shall be deemed a resident of this state in consequence of being stationed therein. SEC. 8. No person under guardianship, non compos mentis or insane, shall be qualified to vote at any election, nor shall any person convicted of treasons or felony be qualified to vote at any election unless restored to civil rights. SEC. 9. Any woman having the qualifications enumerated in Section 1 of this article as to age, residence and citizenship, and including those now qualified by the laws of the territory, may vote at any election held solely for school purposes and may hold any office in this state, except as otherwise provided in this constitution. SAM J. ERVIN, JR., UTAH SALT LAKE CITY, March 15, 1962. Chairman, Committee on the Judiciary, Washington, D.C. DEAR SENATOR ERVIN : This will acknowledge receipt of your letter of February 7, 1962, in which you invite my comments concerning S. 2750 and S. 480, relating to qualifications and literacy requirements for the exercise of the voting franchise. I have examined both bills and have attempted to appraise them in the light of the questions to which you sought inquiry in your letter. First, I have extreme doubts as to the constitutionality of both of these measures. As you have noted in your letter, the U.S. Constitution provides, pursuant to article I and the 17th amendment, that Members of Congress shall be elected by electors who have the qualifications that are the same as those provided for the selection of the State legislature. A similar provision for President and Vice President is found in the 12th amendment. It seems clear, then, that the States are left to determine the qualifications of those persons who exercise the electoral franchise even as to Federal elections. The present bills will usurp, to a great degree, the discretion of the State to establish its own qualifications for electors. It is, of course, well within the jurisdiction of the Federal courts and the Congress to take steps to avoid improper racial discrimination in voter qualifications. Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73. However, the Supreme Court has indicated, as you correctly point out, in Lassiter v. Northampton Election Board, 360 U.S. 45, that literacy tests equally applied, irrespective of race or color, are not unconstitutional and are within the discretion of the State legislature. It would appear, then, that unless the qualifications imposed by the State are being improperly applied or are discriminatory upon their face, that the Federal legislation would, by virtue of the Constitution, be subordinated to any State legislation. I, therefore, feel that since the proposed legislation is extremely broad in its possible application, that it may run afoul of the U.S. Constitution. I believe that the provisions of the present Civil Rights Commission legislation, where the matter of voter discrimination can be directly dealt with, offers a better alternative than the proposed bills submitted to the Senate; first, because the great majority of States have no racial discrimination in the exercise of the elective franchise; secondly, those few minority States that do have some discrimination do not require such broad legislation as the two bills under consideration, and the strengthening of the Civil Rights Commission or other more direct procedure would better correct the problem. As to the question of the standards applied in the bill, I am of the opinion that it is a reasonable presumption that a person who has finished the sixth grade is literate, so that there would be no constitutional objective on the basis of the presumption itself. However, I think it is well within the sound discretion of the appropriate State legislature to provide other standards which would be more effective in actually determining a voter's qualifications. I note that the bills exclude only those persons who have been adjudged incompetent. Since adjudication procedures vary greatly from State to State, it may well be that some persons who are adjudged incompetent may well be qualified to vote, and some persons who have not been adjudged incompetent should be deprived of the franchise. For this reason, I would feel that a more definitive exploration of incompetency is in order. The bills provide that reading and writing of the English language should not be a criteria in determining the qualifications for exercise of the franchise. I would strongly disagree with the recited statement in S. 2750 that there are sufficient Spanish or other foreign language periodicals available to apprise a citizen of the important and cogent issues in an election. In addition, a substantial number of States provide that certain matters to be voted on by the citizens of their State shall be published in an English language newspaper. This, undoubtedly, would lead to a splitting of ballots and substantial confusion. I do not feel that it is too much to ask that a person be able to read and write the English language in order to be granted the franchise. A workable democ racy depends upon a highly informed and intelligent electorate. Participation in voting by great numbers is also important, but if those persons participating are not informed of the real issues involved, the democratic processes are nonetheless undermined. In summary, I feel that there is a constitutional objection to these bills. I further feel that if legislation is deemed necessary to correct discriminatory practices in the election process, that a bill more directly related to the correction of the abuses is the appropriate way to proceed, with penalties being provided for willful discrimination and with easy access to the courts to enforce arbitrary denials. Finally, I am of the opinion that the present proposed legislation creates as many problems as it would solve. For example, it would allow the very arbitrary determination that persons with less than 6 years' formal education are illiterate and thus, in some areas, provide an excellent lever to continue discriminatory practices. Very truly yours, A. PRATT KESLER, Attorney General. SALT LAKE CITY, March 28, 1962. Hon. SAM J. ERVIN, Jr., Washington, D.C. DEAR SENATOR ERVIN: Thank you for your kind letter of March 22, 1962, relating to my comments on S. 480 and S. 2750. In reference to your letter of March 23, 1962, requesting my views on S. 2979, which was attached thereto, I have given that bill close attention. At the outset, let me say that I think section 2(a) is of questionable constitutionality, first, since the Federal Constitution expressly leaves the qualifications for voting up to the States. The fact that a Federal office is the subject of election does not change the constitutional mandate allowing the States to establish voter qualifications. I would agree, of course, that a State may not establish any qualifications for the right to vote which are arbitrary or discriminatory against any race, creed, or color, and for this reason I would have no objection to section 4, subsection (b) of the bill. In fact, I would heartily endorse its passage and I feel that the recognition of inaction, as well as active participation as a cause of discrimination, is a good step in the right direction. However, the four qualifications set out under section 2 appear to be in conflict with the implicit allowance of a literacy test as set out under section 3. Thus, the bill, on its face, is subject to confusion and open to interpretation which can always be used for ulterior motives. Even so, I note that the four definitive qualifications under subsection (b) of section 2 are certainly not all the reasonable restrictions that could be validly imposed before allowing the exercise of the electoral franchise. For example, if a person were placed under guardianship due to incompetency, but not confined, and if he had had 6 years of formal education, he could not be denied the right to vote under the terms of your bill, although a person under guardianship may well not be a competent voter and could be easily subjugated to the influence of his guardian. In addition, the same objection applies to this bill constitutionality-wise as applied to the others. That is, as long as a State established reasonable quali 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.2 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." 3 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). The Federalist No. 60, at 402 (Wright ed. 1961) (Hamilton). [Emphasis added.] Ex 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). |