April 1, 1964
PAGE 6740
CIVIL RIGHTS ACT
Mr. ELLENDER. Mr. President, will the Senator yield?
Mr. HART. I yield.
Mr. ELLENDER. Before the Senator proceeds to the next case, I should like to ask him what action was taken by that Negro after he was denied registration.
Mr. HART. The action of the court in the case of Miller is reported to me as follows: The court proceeding in his case resulted in only limited relief in the district court. The case is reported at 210 Federal Supplement, 411. It is true that the judgment of the district court was reversed by the court of appeals in United States v. Adkins, 323 Federal Second 733, and a much more comprehensive order was directed to the registrars in the county.
The point I make is twofold: First, the extraordinary delay that is involved in such an appeal, second, the arbitrary use of discretion by the registrar which caused the need for such litigation to begin with.
Mr. ELLENDER. In other words, Miller had an opportunity to use present laws to effectuate his registration.
Mr. HART. That is true -- and in the process miss some elections while waiting for a lengthy legal proceeding.
Mr. ELLENDER. That may be true but I take the position that it might be well for us to move slowly in these matters rather than risk violating the Constitution, as the Senator proposes to do under title I.
Mr. HART. No violation of the Constitution is involved in the proposal contained in title I, as I see it, and as many other persons see it.
Mr. ELLENDER. The Senator realizes that the effort being made now is to have the Federal Government, rather than the States, prescribe the qualifications for voters.
Mr. HART. Indeed, no.
Mr. ELLENDER. That would be a direct violation of article I, sections 2 and 4 of the Constitution.
Mr. HART. What is proposed is that the State of Alabama and the State of Michigan apply uniformly whatever conditions and standards they establish. If the Senator will look at the answers contained on these forms, he will recognize immediately that there is a great lack of uniformity in the application of the standards.
For example, consider the case of a Mr. McKay, who was qualified and registered by the board. What is his answer to the question, "Will you give aid and comfort to the enemies of the U.S. Government or the government of the State of Alabama?" His answer was "If hurt would give comfort only if wounded." That applicant passed the test. Yet some very sound, informative answers were made by certain Negro applicants who failed to pass the test, and would necessitate a long, grinding process of court litigation and court appeal. This is what we are talking about when we discuss the arbitrary character of the application of standards set by the States.
Mr. ELLENDER. Of course, under the 14th amendment to the Constitution, as well as the 15th amendment, if the laws are not applied equally, there is cause for complaint. The point I am trying to make is that there are laws now on the statute books which are designed to protect people who are denied their right to vote. What the Senator proposes to do is to provide methods of registration to be laid down by the Federal Government, and not by the State, in direct violation of the Constitution. I refer to subsection (C), wherein is contained the language: Such test is administered to each individual wholly in writing except where an individual requests and State law authorizes a test other than in writing.
As I interpret that provision, it would mean that if the State did not require any of the questions to be answered in writing, the Federal Government could so provide -- which would be contrary to such requirements as set forth by the State.
Mr. HART. This provision, and Subsections (A) and (B) along with it, is a regulation of the manner of holding an election for a Federal officer and is aimed at eliminating the discriminatory practices affirmatively reflected by the charts in the rear of the Chamber.
Mr. ELLENDER. There is a vast difference between the manner of holding elections and the qualifications of voters.
Mr. HART. Indeed; yes.
Mr. ELLENDER. The Senator fails to make that distinction. It is my contention that whenever Congress places a provision in the law that describes the qualifications of a voter, it violates article I, section 4 of the Constitution. That would be done by the pending bill under these three provisions, subsections (A), (B), and (C), as well as the sixth grade provision.
Mr. HART. We have previously exchanged our differing views on this question. I insist that a bare reading of title I in subsections (A), (B), and (C), will confirm the proposition that the language is designed to meet problems encountered in the operation of the 1957 and 1960 Acts, as the charts in the rear of the Chamber illustrate -- specific abuses occurring in connection with Federal elections -- and these are regulations affecting the manner of holding elections. I have no doubt that the Supreme Court would ultimately confirm this point of view.
Mr. ELLENDER. There is no point in having the Senator from Michigan and the Senator from Louisiana continue the argument, but I am as convinced as any man can be that the additional provisions sought to be placed in title I seek to provide Federal qualifications for voting, rather than times, places, and manner of holding elections. I grant that the latter can be done under the Constitution, but whenever Congress treads on the rights of the individual States to set forth qualifications for voters to achieve registration, it tramples on the Constitution.
Mr. MUSKIE. Mr. President, will the Senator from Michigan yield?
Mr. HART. I yield to the Senator from Maine.
Mr. MUSKIE. The Senator from Michigan is discussing with the Senator from Louisiana the application of section 4, article I of the Constitution, to title I of the pending bill. I tend to agree with the Senator's interpretation on that section of the Constitution as it applies to the bill, but if there be any doubt, it seems to me that the doubt is eliminated by the 15th amendment.
The record of discussion in the Senate for the past 3 weeks is replete with statements relative to the rights, prerogatives, and privileges of the Federal and State Governments with respect to voting. The 15th amendment comprises but 46 words. It seems to me to be as plain as the English language can be. I should like to read the two sections of that amendment. The first section reads:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
As I understand the presentation the Senator from Michigan has been making this afternoon, it consists of a documentation of abridgements by States of the right to vote on account of race or color.
Mr. HART. Clearly.
Mr. MUSKIE. If the facts so disclose -- and I think the Senator's documentation does so disclose -- the second section of the 15th amendment comes into application. The language of that section is very brief. It reads:
The Congress shall have power to enforce this article by appropriate legislation.
The question comes down to whether or not the provisions of title I, section 101, are appropriate to meet the abuses which the Senator's documentation has disclosed. Am I correct?
Mr. HART. The Senator is correct.
Mr. MUSKIE. Am I to understand that the Senator's documentation discloses that there has been a practice of applying standards, practices, or procedures differently for Negro citizens than for white citizens under State laws establishing qualifications for voting?
Mr. HART. The reports of the U.S. Commission on Civil Rights have been as complete a ready reference as I know of.
Mr. ELLENDER. The article of the Constitution referred to has nothing whatever to do with who shall prescribe qualifications for voters. Under the Constitution which I just cited as article I, section 2:
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 for Electors of the most numerous Branch of the State Legislature.
The courts have held that insofar as qualifications are concerned, the States exercise that right. The only thing the 15th amendment does is to see that there is no discrimination practiced.
Mr. MUSKIE. I should like to ask the Senator from Louisiana this question: Does he argue that if a State established a different and more stringent set of qualifications for Negro voters than for white voters, the 15th amendment would not come into play?
Mr. ELLENDER. It would.
Mr. MUSKIE. Is there a difference in the Senator's mind between the establishment of different qualifications than there is in the different application of the qualifications?
Mr. ELLENDER. It is all in the interpretation. As I have stated, the Supreme Court has held any number of times -- and the Senator from Michigan [Mr. HART] knows that, because he is a good lawyer -- that the right to determine qualifications for voting rests in the State and not in the Federal Government.
Mr. MUSKIE. I do not believe that is the point at issue.
Mr. HART. There is disagreement on that.
Mr. ELLENDER. That is the point.
Mr. MUSKIE. The point at issue, as I understand –
Mr. HART. The point at issue is how it is applied, whether we have the right to apply it, and I believe we do.
Mr. MUSKIE. The 15th amendment supports the Senator's view.
Mr. ELLENDER. That would apply after registration, not before registration.
Mr. MUSKIE. The Senator has agreed with me. If I understood him correctly, he said a moment ago that if a State established a different and more stringent set of qualifications for Negroes than for whites, the 15th amendment would apply. The Senator from Michigan and I simply take the position that if the same qualifications are applied more stringently to Negroes than to whites, the 15th amendment also applies.
Mr. ELLENDER. Then that would be discrimination, without question.
Mr. MUSKIE. This is the whole point of the Senator's discussion.
Mr. ELLENDER. When it comes to voting rights, the 15th amendment would apply, but when it comes to registration and qualifications of voters, then the State laws must be strictly followed.
Mr. MUSKIE. I find it difficult to comprehend the Senator's position that the registration of voters cannot be used in such a way as to abridge a citizen's right to vote.
Mr. ELLENDER. I did not say that.
Mr. MUSKIE. That appears to be the thrust of what the Senator just said.
Mr. ELLENDER. I was trying to make a distinction between qualifications rather than the actual voting.
Mr. MUSKIE. Of course, there is a distinction.
Mr. ELLENDER. Yes; of course there is a distinction. That is where the 15th amendment comes into play, in the voting rights. But when we speak of qualifications of registration, that is a function of the State, not the Federal Government.
Mr. MUSKIE. A precondition to voting is meeting the qualifications established by the State. If the qualifications themselves are different, or more stringent, or if the same qualifications are applied in a more stringent manner to Negroes than to whites, then I submit that the 15th amendment clearly applies.
Mr. HART. I thank the Senator from Maine very much. I also enjoyed the participation of the Senator from Louisiana.
Let us see if we can wind up the analysis of these few excerpts.
Almost parenthetically it is not inappropriate to state that this legislation, and title I in particular, is prefaced upon the 14th and 15th amendments, on article I, section 4, of the Constitution, and indeed on the implied powers of the Congress to protect the purity of Federal elections.
Mr. President, I was describing the case of Annie Hogan, a Negro citizen of Dallas County, 55 years old, who had taught in the Dallas County public schools for 33 years and she was rejected for a technical reason. Two months later she came back. The board of registrars did not permit her application to be filed. Why? Because she had been previously rejected. Ultimately the court corrected this, too.
Kathleen Harris is a 33-year-old Negro applicant with a B.S. degree. She was teaching in the school system in Dallas County. She was refused registration because she did not state the specific year she became a resident of Dallas County.
I believe it is perfectly clear from the four corners of the application that she had been such a resident for many years in excess of the statutory requirement.
Kathleen Jones -- and last -- is a 55-year-old Negro who had been a resident of the county all her life. She had an 11th-grade education. Her explanation of what the Constitution provided did not satisfy the registrar. She was an extremely literate lady. The questions and answers were never reduced to writing. Later, on court appeal, it was required that such questions and answers be reduced to writing.
I cite one of the instances of a white citizen who was registered, the one who made that striking answer to the question, "Will you give aid and comfort to the enemies of the U.S. Government or the government of the State of Alabama?" by saying, "Only if wounded."
There are some other answers which, as the father of eight children, do not surprise me, but would not persuade me if I were a registrar.
Briefly, let me call attention to the two other charts on the separate easels in the Chamber. These cover eight applications for registration that were filed in Forrest County, Miss.
Two of the applicants are white citizens. These two were held to be qualified and were registered.
These six are all Negro applicants. Three of the Negroes are teachers, two of them have advanced degrees, one of them was awarded a National Science Foundation scholarship. One of the other Negroes had a degree in pharmacy, and two of the others, the remaining two, were ministers, each with some college education.
Two whites were high school graduates.
I ask unanimous consent that several forms and excerpts from the registration applications on these cases be included in the RECORD at the conclusion of my remarks.
There being no objection, the forms and excerpts were ordered to be printed in the RECORD.
(See exhibits 2, 3. and 4.)
Mr. HART. Mr. President, the point to be noted here is that they show the absurdly difficult sections of the Constitution that were given to Negroes to be interpreted. The interpretations, it will be noticed, are strikingly good ones. However, the registrar rejected them all on highly technical and immaterial errors -- errors on the form itself such as failing to sign the application form. They are not errors in the tests themselves, but errors on the application form. Each of the whites was registered.
The purpose of these exhibits is to show how questions can be used to deny Negro citizens the right to vote, instead of as a means of determining whether a Negro is a qualified citizen in the community and therefore should be registered to vote.
Inasmuch as the exhibits in the record will contain in full the constitutional sections which were given for interpretation, and the interpretations given in answer to the questions by the applicants, I shall not paraphrase them in these remarks.
Mr. ELLENDER. Mr. President, will the Senator yield?
Mr. HART. I yield.
Mr. ELLENDER. Will the Senator inform us whether the six Negroes who were denied registration took legal action, and, if so, with what results?
Mr. HART. It is my impression that the Mississippi cases are still pending decision in the courts. If that impression on verification proves to be inaccurate, I shall add to the RECORD the accurate answer. At the moment the answer is that the cases are still pending.
Mr. ELLENDER. The applicants did exercise their right under present law to have themselves declared eligible to vote in Mississippi. Is that, correct?
Mr. HART. They did. The point that those of us who support title I make is that there should be an explicit requirement that questions and answers be in writing, if a literacy test is given; second, that there be a direct expression of obligation to apply such tests uniformly.
Any casual reader of the RECORD, when he comes to these exhibits, will be compelled to agree that there is a lack of uniformity in the action of the registrar in these cases.
Mr. ELLENDER. Following the suggestion which the Senator has made, it would mean that the Federal Government would be undertaking the obligation of providing the qualifications. Is that correct?
Mr. HART. Let me state the point again. I do not agree that that is the case. The effect of title I in this case would be to compel the registrar to apply uniformly whatever rule Mississippi has with respect to qualifications.
Mr. ELLENDER. The Senator would have the Federal Government insist that the examination be in writing if the State says it should not be in writing. Is that correct?
Mr. HART. I believe that is a prudent manner in which to apply the examination. We have the right to prescribe the manner of conducting an election
Mr. ELLENDER. The elections.
Mr. HART. And the preliminaries that are a part of an election.
Mr. ELLENDER. That is where we differ. There is a difference between voting and the preparation for voting.
Mr. HART. We believe that the framers of the Constitution and the judgment of the American people contemplated that we would not hamstring ourselves to the point where it might cause discrimination and disqualification which would not be within the reach of the Federal Government.
Mr. President, I ask unanimous consent, as I indicated I would, that at the conclusion of my remarks, excerpts from the testimony of Dean Erwin N. Griswold of the Harvard Law School, which I identified as having been given before the Subcommittee of the Committee on the Judiciary in 1962, be printed in the RECORD.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. HART. I appreciate the patience of the Senate in these remarks, which extended longer than I had estimated. I hope that as the days advance, our understanding of what the bill is designed to do will increase. I hope, additionally, that the people across the country will come to a clearer understanding of what the bill involves. It is a part of the game, I suppose, that confusion and misinformation should be a part of any such debate in a society such as ours. Some outrageous notions as to what the bill would do have been circulated widely.
Perhaps it is more than a sensible person could expect, namely, to have people who write us about the civil rights bill read the civil rights bill before they write us about it.
For my part, when they write to me, and it is clear from their expression that they have not read the bill, I undertake, in reply, to send to them at least the excerpt from the bill which bears on the subject of concern of the letterwriters. I am sure other Senators do likewise.
I am sure that in the days ahead, the more the RECORD is read, the clearer will become the realization that this is an effective civil rights bill, and a moderate civil rights bill, and that its enactment is as essential to the survival of a free society as any legislation that will confront any Member of the Senate.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. HART. I yield.
Mr. MUSKIE. The Senator from Louisiana has made the point that the Negro citizens whose applications and other election documents are displayed here have a remedy under present law. Throughout much of the debate during the last 3 or 4 weeks, many opponents of the bill have complained that the bill does not provide standards which can be useful in the judicial branch or the executive branch.
Section 101 of title I, as I understand, does just that; it applies some specific standards for application for the purpose of determining whether, in fact, there has been discrimination. Am I correct?
Mr. HART. The Senator from Maine has stated correctly, and interpreted correctly, the purpose of title I.
Mr. MUSKIE. Moreover, the standards, as I understand them, are realistic, because they are geared to actual situations in which discrimination has been disclosed by the studies of the Civil Rights Commission. Is that correct?
Mr. HART. This title reflects a restrained response to the sharp statement made by the Civil Rights Commission that, if we are to reduce specific abuses in Federal elections, which the experience of the 3 previous years have proved to be even beyond reach of existing law, we must undertake without delay corrective action. That is what the Civil Rights Commission had occasion to say. Title I is in response to that statement.
Mr. MUSKIE. With respect to section 101 (A) (2) (C), the requirement that any literacy test be reduced to writing, is a practical requirement, without which it is almost impossible to prove in court whether or not there has been, in fact, any discrimination in this way. Is that correct?
Mr. HART. The Senator has pointed to one practice; namely, oral questions and oral answers, which, like the air in which they are spoken, evaporate and disappear long before it is possible to bring a case into court. The burden on the Department of Justice in voting rights cases is almost overwhelming in this respect.
Mr. MUSKIE. May I ask whether the Senator concurs that if this desire exists on the part of States to preserve their prerogatives, their rights, and their authority in the field of voting without any intrusion or intervention by the Federal Government, the best way to insure that is to make sure that State laws are applied uniformly and without discrimination?
Mr. HART. This is even more obvious and generally more thoroughly agreed upon than the proposition that 2 plus 2 is 4.
Mr. MUSKIE. I am not sure that we could get 100 percent agreement on that mathematical proposition on the floor of the Senate today.
Mr. HART. Not if it were in the civil rights bill. I thank the Senator.