Harman v. Forssenius – Oral Argument – March 02, 1965

Media for Harman v. Forssenius

Audio Transcription for Oral Argument – March 01, 1965 in Harman v. Forssenius

del

Earl Warren:

Number 360, A. M. Harman, Jr., et al., Appellants, versus Lars Forssenius et al.

Mr. Carter, you may proceed and continue with your argument.

Joseph C. Carter, Jr.:

Mr. Chief Justice may it please the Court.

On yesterday prior to the recess, the issues in this case had been stated and the statement of facts had been substantially completed.

I had just apprised the Court of the facts concerning a special session of the General Assembly of Virginia held in November of 1963 which enacted certain revisions of the election laws so as to make them workable in the practice with the total tax requirement for registration and voting inoperative in federal elections as required by the Twenty-fourth Amendment but operative in state and local elections.

The only one of these statutory revisions that was held invalid by the court below and the only one which is the subject of this appeal is Section 24-17. 2 to which I referred yesterday which establishes two optional methods by which a registered voter in years subsequent to the year in which he registered must prove his revenues as a qualification for voting.

The Twenty-fourth Amendment having been formally ratified in January of 1964, the statutes involved here became effective by their terms on February 19, 1964.

Two declaratory judgment actions and these cases were instituted by the appellees on the very next day, February 20, 1964.

And the order of the court below was entered on May the 29th.

A stay was refused by this Court in June of 1964 and consequently the final order of the Court went into effect on July 1 of last year.

When you look at the opinion of the court below in this case, you will see that in the very first sentence, that court concluded that the statute involved here created a new and additional substantive qualification for voting in Virginia.

A qualification which the Court said was demanded of federal voters only and not of state voters.

Thus, the reason of the Court, this qualification is invalid under Article I, Section 2 and the Seventeenth Amendment of the Constitution of the United States.

This initial conclusion at the very start of the opinion is the cornerstone of the entire reasoning of the court below.

And we believed that it is plainly and fundamentally erroneous.

It’s quite clear we believe that Article I, Section 2 and the Seventeenth Amendment contemplate that the people of the states must first establish qualifications for voting in their state constitutions.

Which qualifications are then adopted by those two sections of the United States Constitution and are thereby made qualifications for voting in federal and congressional elections as well.

This Court and numerous other authorities have repeatedly observed that it is the people of the state who first fixed or established the qualifications for voting that apply in federal and state elections.

Now going back into history, all of the states in this nation at one time or another have had qualifications based on qualifications for voting, based on age, or residents, or sex, or race, or property ownership, payment of taxes, literacy, and other similar qualifications.

But of course the power to fix or establish these qualifications as vested in the people of the states by Article I, Section 2 and the Seventeenth Amendment has now been expressly and specifically limited by the Fifteenth, the Nineteenth, and the Twenty-fourth Amendments.

Those amendments are couched in very similar language and in the same basic form although the last one, the Twenty-fourth Amendment, is the only one that applies to specified federal elections only.

The other two apply to all elections held in the United States.

Now each of these amendments rendered inoperative a particular type of qualification for voting that many states had theretofore had in their own constitutions.

But none we submit has fundamentally altered the basic plan whereby it is the people of the states who first fixed the qualifications for voting and those qualifications are then adapted by the Constitution of the United States.

The power to fix or established voting qualifications has also been limited at least to the extent of procedural and implementation statutes by the requirements of the Equal Protection Clause of the Fourteenth Amendment.

But subject only to the limitations of these four amendments to which I have referred, the people of the states have the power to initiate voting qualifications.

Now, it is important to remember that the state courts very early in our history proclaimed the fundamental constitutional nature of voting qualifications.

And the Supreme Court of Virginia like the highest courts of most of our states has adopted the rule that substantive qualifications for voting must originate in the Constitution of Virginia and cannot be created or rescinded by mere legislative enactments of our general assembly.

This rule has been enunciated in three different Virginia cases which are cited on page 13 of our opening brief.

So, if the statute involved here Section 24-17.2 created a qualification as the court below reasoned then this statute would be invalid under the Constitution of Virginia.

Joseph C. Carter, Jr.:

We believe and we argued to the court below that this was basically a question of state law as to whether or not such a qualification was created.

And it was on that basis that we moved for abstention in this case, feeling that surely in the area of voting qualifications there was one field left where the federal courts might properly divert it to the state courts.

But of course this motion was overruled by the court below.

Turning now to the Constitution —

John M. Harlan:

What was — what would be the question of the state law (Inaudible)?

Joseph C. Carter, Jr.:

Whether or not Section 24-17.2 created a new substantive qualification for voting that had never existed before and whether it would thereby be invalid under the Constitution of Virginia as a mere legislative enactment.

John M. Harlan:

(Inaudible)

Joseph C. Carter, Jr.:

Would have been completely disposed off, yes.

Byron R. White:

But these (Inaudible) constitution before you established it, this is the qualification (Inaudible)?

Joseph C. Carter, Jr.:

You would certainly have a federal question left in that situation, yes.

Byron R. White:

(Inaudible)

Joseph C. Carter, Jr.:

No sir, Mr. Justice White, I do not believe it is because I believe the question assumes —

Byron R. White:

Well, we’d still be having (Inaudible) — I understand it to be such — this qualifications.

Joseph C. Carter, Jr.:

That is quite correct.

It’s — it has been our argument all along that this was a procedural on implementation statutes so if we prevail before the Virginia Court the federal question would remain.

Byron R. White:

You would still have to (Inaudible) the procedure whether or not the (Inaudible) is substantially different on the meaning to be different in any way from the qualifications that of the state, is that correct?

Joseph C. Carter, Jr.:

That quest —

Byron R. White:

(Inaudible)

Joseph C. Carter, Jr.:

Excuse me.

Byron R. White:

— did the (Inaudible) decided the case?

Joseph C. Carter, Jr.:

That is quite correct Your Honor.

Turning now to Sections 18 and 20 of the Constitution of Virginia, we see that poll tax payment has been a qualification for registrative — for registration and voting in Virginia for many years.

As I pointed out yesterday —

Arthur J. Goldberg:

(Inaudible)

Joseph C. Carter, Jr.:

That’s quite correct.

But I believe that in the history of property and other qualifications for voting in the constitutions of various states, you have all of these things, age, residence —

Arthur J. Goldberg:

(Inaudible)

Joseph C. Carter, Jr.:

— and so on —

Arthur J. Goldberg:

You see a difference in it don’t you between age, (Inaudible).

Well, would you know whether a certain year, that is the qualification and that’s the ruling (Inaudible).

Arthur J. Goldberg:

Is that correct?

Joseph C. Carter, Jr.:

Mr. Justice Goldberg, in the early history of this country most of the 13 original states, all but two I believe out of the qualification for voting property ownership —

Arthur J. Goldberg:

That it were important?

Joseph C. Carter, Jr.:

Well, as I understand it, the theory was at that time that property ownership did give a man an attachment to the community and an interest in the affairs of the community that he otherwise would not have had.

Arthur J. Goldberg:

You just have it squared or do you (Inaudible) would not be a qualification required on voters?

Joseph C. Carter, Jr.:

I don’t believe that this Court has ever decided that a property qualification would be unconstitutional.

Now, it’s interesting to note that in some of the original Senate Resolutions which were the forerunners of the Twenty-fourth Amendment, you had a prohibition against property qualifications and poll taxes.

But when the final resolution was adopted by the Congress, the property qualification was left out and the amendment was limited to the poll tax.

Arthur J. Goldberg:

(Inaudible)

Joseph C. Carter, Jr.:

Yes sir, I am.

My theory has been that that case does not involve voting qualifications in the constitutional sense that we are discussing here today.

And in no case to my knowledge have you had a situation where the people of the state have purported to adopt the qualification of that kind in their own constitutions.

Now, as I pointed out yesterday because of the system of permanent registration in Virginia, the payment of the poll tax has had a very practical significance in the working of the election machinery.

It actually was the means by which the various voting lists were kept up to date.

And thus, it had a dual function in practice.

It was a constitutional qualification.

And in addition to that, it was a means of proving continuing residence and residence of course is a separate qualification under our Constitution.

Therefore, it is easy to see that in order to give effect of the Twenty-fourth Amendment in federal elections and simultaneously retain the poll tax in the state elections, some method was necessary to keep these registration lists up to date.

And the method that the General Assembly of Virginia chose was the statute which is before this Court today.

Hugo L. Black:

How many — how much money do you get out of the poll taxes in Virginia?

Joseph C. Carter, Jr.:

The total is a dollar and a half per year, Your Honor.

Hugo L. Black:

I meant, aggregate, in the aggregate?

Joseph C. Carter, Jr.:

My understanding is that it has average about a million dollars a year for several years.

Hugo L. Black:

Why do — what do you use that fund for?

Joseph C. Carter, Jr.:

One dollar of the fund according to our Constitution goes to public free schools at the state level.

Fifty cents is sent back to the localities to be appropriated as they see fit.

In most cases that also was used for the school system.

Hugo L. Black:

It’s never been devoted has it to the cost of the election?

Joseph C. Carter, Jr.:

No sir.

Byron R. White:

Can I ask you, the poll tax (Inaudible) collectible whether you vote or not?

Joseph C. Carter, Jr.:

It is collectible whether you vote or not.

The statutes of Virginia now provide that it is not collectible by legal process until after it remains unpaid for three years.

William J. Brennan, Jr.:

Now, what this lawsuit is about that we meet about this morning here?

Joseph C. Carter, Jr.:

All I know about the lawsuit is the story in the morning paper but that is correct as I understand it.

The collection of the poll tax after three years falls under the general tax collections statutes of Virginia.

And it is my understanding that it can be collected by legal process —

William J. Brennan, Jr.:

That being it’s a lien against one little state, that’s it?

Joseph C. Carter, Jr.:

No sir.

William J. Brennan, Jr.:

No.

Joseph C. Carter, Jr.:

No sir, not at all.

Arthur J. Goldberg:

Mr. Carter, its difficult (Inaudible) constitution of Virginia?

Joseph C. Carter, Jr.:

I think that is quite correct.

It’s —

Arthur J. Goldberg:

(Inaudible) you are to say that the fact (Inaudible) that the poll tax is not a (Inaudible), is that what you — the court said?

Joseph C. Carter, Jr.:

I’m sure that’s a correct characterization of it.

We believe that it has been a qualification from voting.

Hugo L. Black:

Maybe as in what?

Joseph C. Carter, Jr.:

A qualification of — for voting that I must say was the basic purpose —

Hugo L. Black:

You mean that the (Voice Overlap) —

Joseph C. Carter, Jr.:

— of the poll tax requirement in the past.

Hugo L. Black:

You mean in the past or now?

Joseph C. Carter, Jr.:

In the past and now in the state elections by our constitution —

Earl Warren:

Well, it could turn a million dollars a year over to the school systems, how can you say it is the revenue made?

Joseph C. Carter, Jr.:

I would presume that Mr. Justice Goldberg’s question was directed to the basic purpose of the statute.

And I would have to say as I did that the basic purpose and the whole constitutional framework was in the election laws that the qualification for voting or rather than being basically a revenue merger is undoubtedly has characteristics to the both.

Hugo L. Black:

When was it — when was the class — when was that first inclusion in the Constitution?

Joseph C. Carter, Jr.:

In its present form of the first included in the 1902, the Constitution of 1902 which is still the basic constitutional framework.

Hugo L. Black:

Is that the one where the constitution was amended in several respects to make it more difficult to vote?

Joseph C. Carter, Jr.:

There is in the records of that constitution several statements by some of the more extreme members or delegates to it which the appellees have cited in their briefs indicating that the basic purpose of those delegates was to restrict the franchise.

Hugo L. Black:

Was that Senator Glass?

Joseph C. Carter, Jr.:

Yes sir.

Hugo L. Black:

(Voice Overlap)

Joseph C. Carter, Jr.:

He is quoted I believe in the appellee’s brief.

Hugo L. Black:

I have not read the brief.

Joseph C. Carter, Jr.:

Now, as our court has held subsequent to that time, actually it was in the case of Butler versus Thompson passing on the validity of the poll tax itself in which the opinion was affirmed by this Court.

It was there stated that the quotation from those particular delegates to the constitutional convention had no significance at this time.

What was an issue in that case of court was the basic constitutional validity of the poll tax and it was upheld as a qualification for voting claim.

Now, returning to the opinion of the court below, it seems to us that the basic reasoning behind its holding was that the court felt that payment of the poll tax was just not a trustworthy means of proving residence.

And as a practical matter it boiled down to that so far as the Court is concerned.

Now, it’s our contention that this conclusion was unsupported in the record.

There’s not a bit of evidence in this case to contradict the legislative history of the statute before the Court today.

And that legislative history has to the effect that in practice the poll tax has been used to prove residence.

Moreover, there are any number of cases, many of which are cited in our brief that hold — that in situations where you must determine residence or domicile the voluntary payment of poll taxes and other personal taxes assessed in the locality is the best possible test of residents that you can have in those situations.

Byron R. White:

But what if you — could you send out the poll tax return, (Inaudible) first suppose to file?

Joseph C. Carter, Jr.:

The practice in most by our local jurisdictions, Mr. Justice White, is that the personal property tax return, the tangible personal property returns contained insu — contain information sufficient for the assessment of the poll tax.

And so basically the list of poll tax of people who are required to pay the poll tax is made up from personal property return and bills are sent out to the persons who have filed a return.

Byron R. White:

Then the personal property tax return itself is really the source of your information as to residence?

Joseph C. Carter, Jr.:

That’s quite correct.

Byron R. White:

That rather than the poll — rather than the payment of the poll tax.

Joseph C. Carter, Jr.:

Well, the voluntary payment of the poll tax we believe is much better evidence on that particular subject.

Byron R. White:

What — in payment of your personal property taxes?

Joseph C. Carter, Jr.:

Well, the personal property tax bills are sent out to all persons who paid them the year before, some of them may have moved.

Byron R. White:

Yes.

Joseph C. Carter, Jr.:

We believe that the payment of the poll tax and the payment of personal property taxes as well are both indications of continued residence.

Now the legislature shows —

Byron R. White:

What if you endorse the – (Inaudible) when you got your poll tax, (Inaudible).

I’m here, send it back and the — without the money?

Joseph C. Carter, Jr.:

Well actually sir, the certificate required in 24-17.2 is very little more than that.

If you were to write on your poll tax bill the essentials of the information required in the certificate and sign it and have it witnessed and send it back, then you would have complied with the Section which is before the Court today.

Byron R. White:

And —

Joseph C. Carter, Jr.:

And no form —

Byron R. White:

You have to have the witness.

Joseph C. Carter, Jr.:

That’s correct, that’s correct.

Arthur J. Goldberg:

(Inaudible)

Joseph C. Carter, Jr.:

Either witness or another act, that is in accord with the forms that we viewed in Virginia for many years in absentee voting and voting by persons absent in the armed services.

In fact, the certificate is patterned very closely on the certificate that has been used by armed service voters for many years in Virginia.

Earl Warren:

Well, the question that was asked by Mr. Justice White doesn’t mean or your answer to it rather, doesn’t mean that there is a form that they must fill out in paying the poll tax which will give the same information, is that — the certificate does it?

Joseph C. Carter, Jr.:

No sir.

There is no form or return that is required in connection with payment of the poll tax itself.

Earl Warren:

All they do is send the bill and the (Voice Overlap) —

Joseph C. Carter, Jr.:

Voluntary payment of that tax.

Earl Warren:

The money — the money is returned.

Joseph C. Carter, Jr.:

That’s correct, Your Honor.

Earl Warren:

Do you say that’s voluntary?

That’s new to me.

Joseph C. Carter, Jr.:

In view of the —

Hugo L. Black:

How much is (Inaudible).

Joseph C. Carter, Jr.:

Well, it has been pointed out in many of the cases involving poll taxes that no state as a practical matter collects them by legal process.

Obviously, it would be more expensive to do so than it would be worth making.

So immediate involuntary return of that money says the General Assembly of Virginia constitutes a voluntary admission that you continue as a resident of the locality which sent you the bill

And as I say we have cited a number of cases, tax cases, particularly state tax cases, divorce cases, election cases, and others where many, many courts have said that this is a reasonable and a proper test for residence.

Byron R. White:

Well, that’s what he wants, the admission, why do you require a proof with other — from another kind of political (Inaudible)?

Joseph C. Carter, Jr.:

I suppose that depends on the definition of the word proof.

Byron R. White:

Or if it —

Joseph C. Carter, Jr.:

Actually both alternatives are very, very simple.

Both are admissions in my judgment that you are a resident, either the certificate or the payment in poll tax.

John M. Harlan:

Why is the certificate cost?

Joseph C. Carter, Jr.:

It has no cost.

John M. Harlan:

(Inaudible)

Joseph C. Carter, Jr.:

Generally not in my experience in Virginia and of course it can be witnessed by a layman and does not have to be notarized.

Arthur J. Goldberg:

(Inaudible)

Byron R. White:

Where do you have to file them?

Arthur J. Goldberg:

(Voice Overlap)

Byron R. White:

Where do you have to file them?

Joseph C. Carter, Jr.:

The certificate of residence is sent in to the treasurers of the localities or the Commissioner’s revenue who happened to be the officers charged by the Constitution of Virginia preparing a list of eligible voters.

After those lists are prepared, they are submitted to the clerks and the sheriffs, and they’re actually posted at each voting place in Virginia prior to the election.

Arthur J. Goldberg:

Mr. Carter, where do you get this certificate?

Joseph C. Carter, Jr.:

The statutes passed by the General Assembly in 1963 provide that the State Board of Elections must print out forms of these certificates and distribute those forms to the various local voting registration authorities.

The statute does not go on to say what those authorities will do with it and presumably there maybe differences in practice, some may distribute them widely or keep them in their offices for use.

I can’t tell but I should point out, Mr. Justice Goldberg, that the statute clearly says that you must file a certificate substantially in this form not in any particular form, substantially in this form.

Arthur J. Goldberg:

Would you think, Mr. Carter, it would be more or less burdensome on the voter to pay the dollar and a half pursuant to the bills sent to them or to either compose or pick up a certificate which is required to be — ones to vote in a federal election, what’s your own view of that?

Joseph C. Carter, Jr.:

I would say that certainly in — on many economic levels that would be easier and less burdensome to file a certificate and send it in.

If it is true as many have argued that a dollar and a half per year is a sufficient amount to deter people from voting then certainly as to those people it would be easier to fill out and send back the certificate.

In other cases —

Arthur J. Goldberg:

And if you have the dollar and a half, what would your view be?

Joseph C. Carter, Jr.:

I would say that they are equally reasonable.

I don’t see that one is anymore burdensome than the other.

Arthur J. Goldberg:

What would you think in your own case?

Joseph C. Carter, Jr.:

That’s definitely my answer in my own case.

I don’t see any burden of any unreasonable nature at all involved in this certificate.

Potter Stewart:

You said it was equally burdensome with the poll tax and the Twenty-fourth Amendment outlawed of the poll tax.

Joseph C. Carter, Jr.:

I said, I didn’t see any difference in terms of trouble involved in sending back one or the other.

Earl Warren:

Doesn’t the certificate require the maker to say that he intends to remain a resident until the election?

Joseph C. Carter, Jr.:

Yes sir, that point is correct.

Earl Warren:

Does the poll tax pair have to make any such certificate?

Joseph C. Carter, Jr.:

If he does not make that particular certification.

Earl Warren:

Well, what kind of a — does he make any certification to that effect?

Joseph C. Carter, Jr.:

No sir, the general assembly doubtless felt that payment of the tax was sufficient indication that he intended to stay there until the election in order to vote.

Earl Warren:

Suppose this — suppose a man said I make the cert — I’ll make the certificate out and I cannot — I don’t care to state that I am — that I will be a resident at the time of the election.

Would it be any good?

Joseph C. Carter, Jr.:

Believe he would automatically be disqualified from voting at the election because he would no longer be a resident under —

Earl Warren:

No, he would still —

Joseph C. Carter, Jr.:

— Section 18 of the constitution.

Earl Warren:

He would still a resident but maybe he’s planned for uncertain and he didn’t know what he was going to do and he didn’t want to be charged with any offense for falsifying certificates.

So he just didn’t want to say and he declined to answer that question, would a certificate be any good?

Joseph C. Carter, Jr.:

He would be disqualified under those circumstances.

Earl Warren:

Be disqualified but anyone who — anyone who pay the poll tax and had the same reservation would not be disqualified, is that right?

Joseph C. Carter, Jr.:

That is correct but —

Earl Warren:

Well, why isn’t that a qualification for voting then?

Joseph C. Carter, Jr.:

The General Assembly in this case and the judgment of the appellants simply acted on the basis of practical experience in Virginia and stated what it felt as a matter of legislative power constituted evidence of residence, residence being the qualification for voting with which we are concerned here.

Now, it is not up to us in this case.

We believe to show any more than that.

This was not a clearly irrational and arbitrary action by the legislative body.

Surely, it had to file to act on the basis of practical experience to set up an evidentiary requirement in the voting area just as it may set up evidentiary requirements in other areas of the law.

I will move on now to the second issue in the case —

Earl Warren:

You mean that’s true even though it would slow down the voting rights of a man that reaches it to some extent, do you think that’s within the power of the legislature under the Twenty-fourth Amendment?

Joseph C. Carter, Jr.:

If the statute in this case was as we deemed it to be, simply our requirement for proof of residence then I would not feel that whether or not it slows down voting as any constitutional significance because all qualifications of voting whatever their nature must have this effect of slowing down voting in that sense.

Earl Warren:

But do you think the legislature can prescribe a number of tests of — for voting that are different among different groups?

Joseph C. Carter, Jr.:

If the classification were reasonable under the Equal Protection Clause of the Fourteenth Amendment which we will argue in a few moments, then I believe that a state could, yes sir.

Completing very quickly the opening argument for the appellants, may I say that the second issue in the case is whether the order of the Court should’ve been extended to elections for president and vice president on the basis of Article I, Section 2 in the Seventeenth Amendment.

Those two sections of the constitution apply only at the congressional elections.

And if you look at Article II, Section 1 and the Twelfth Amendment which deal with elections for president and vice presidents, it is clear that the states are left to determine how the electors for those federal officers will be selected.

And there is no adopting provision which brings them back as qualifications for voting under the constitution or anything of that sort.

So as the brief for the United States concedes in this case, it was improper for the court below to have extended its order to presidential elections in this way.

Earl Warren:

Mr. Widener.

H. E. Widener, Jr.:

Mr. Chief Justice, may it please the Court.

We don’t want to be taken as conceding that if the United States has conceded we don’t want to be taken as conceding if this — or the court was improper concerning the presidential electors.

I don’t think the United States has conceded it either but if the court think so we don’t want to be a party to the concession.

The — I think I might start out with the question asked by Justice Black about this extremist business.

This is what Senator Glass said in the convention, discrimination, well that is exactly what we proposed, exactly what this convention was elected for, to discriminate to the very extremity of permissible action under the limitations of federal constitution.

H. E. Widener, Jr.:

But the fact is, that Senator Glass was not —

Hugo L. Black:

What he is — what he’s saying out — about the poll tax?

H. E. Widener, Jr.:

No sir, he was talking about the purpose of the suffrage provisions in our constitution of 1902.

But the fact is that Senator Glass was not the extreme — didn’t represent the extreme view in that convention.

He represented the middle between the Eastern and Western Virginia.

Many people in the convention from Western Virginia probably most of them were against any poll tax at all.

The people from Eastern Virginia by and large Eastern Blue Ridge Mountains were far more stringent restrictions on voting than this constitution provided.

And the statement was made by Senator Glass that the constitutional convention would discriminate but only to the extent which was permissible under the federal constitution.

And I think a reading of the debates makes that quite clear that he was the person of the convention who got to people together.

The poll tax was put in that convention purely and simply as a qualification for voting.

There was no — there’s no mention in the debates the convention was fully reported and the reports are widespread, I guess almost every laws of Virginia has one.

There was no mention with the debates anywhere at all of poll tax being any kind of a proof of residence.

The constitutional convention established four qualifications for voting; age, residence, registration, and poll tax.

It was residence and poll tax, not residence or poll tax.

The Attorney General, when the legislature met the special session to pass this legislation stated that the right of the state to fix qualifications for voting is not changed in any other respect.

The Attorney General stated again, this appears in 80 — pages 84 and 86 of the record, state voters will automatically qualify to vote in federal elections but federal voters will not automatically qualify to vote in state elections.

So what this special session met for and passed were concerned qualifications for voting granted that the statute itself after he get started goes off on what is called evidence of residence now.

It wasn’t called hat then.

In the preambles of the statute itself at page 92 of the record, it’s a bill to authorize persons in anticipation of ratification of the Twenty-fourth Amendment of the constitution of the United States to file certificates of continuing residence so as to be able to vote if otherwise qualified.

At the very outset of all of these legislations, the legislature has stated that in filing this certificate is a qualification for voting.

The argument that it was a proof of residence came later in the statute.

Apparently the General Assembly must have been worried about the classification or establishing different qualifications for voters from the House of Delegates and for Congress and the Senate.

But in any event, that’s what they called it in the statute.

The Governor in his address to the General Assembly, stated that the — they were not fooling around with the qualifications for voting but that they were only legislating with regard to proof of residence.

And the Governor laid it back to the constitutional convention.

He said accordingly and out of the genius of that body of men originated our present system whereby it is presumed that any person assessed for the computation tax and thereby allege to be a resident of Virginia who comes forward and voluntarily pays the assessments six months prior to a general election shall be presumed to be a resident of Virginia and shall be deemed to have satisfied those provisions of the constitution which restrict voting to residents.

But that isn’t what the constitutional convention debate said.

There was no mention in it — of it.

There just wasn’t any mention in the debates of such a thing.

I like to invite the attention of the court to the defendant’s Exhibit Number 32 which is a compilation of Virginia election laws put out by the state and in the back of the exhibit are the laws passed to the special sessions.

H. E. Widener, Jr.:

Now the laws in the balance of the book, the principal part of the book, have not changed it substantially since 1902.

These were the laws which were brought about by our constitutional convention of 1902.

It’s true that absent voting and voting by members of the armed services on a different way have been added since then but there’s been no substantial change.

There isn’t a mention in the principal part of this book up until the fall of 1963 of the payment of the poll tax being evidence of anything, residence, or otherwise.

The payment of it was put in there simply to restrict the electorate.

If it wasn’t, why are three-years payment of poll tax required to prove one year’s residence?

Why is payment of 1963 tax required to vote in 1964?

The 1963 poll tax for example is assessed on January the 1st, 1963.

It is payable on this — until December the 5th, 1963 without a penalty.

I think that time there’s a penalty in interest charge on it.

But if you pay it up until May of 1964, you can vote in the general election which takes place in November 1964.

But how does the payment of the poll tax in May prove that you’re a resident in November?

Or out of the payment for poll tax for 1963, supposed you paid on time, proves that you’re going to be a resident of Virginia at all for 1964?

Byron R. White:

Mr. Widener —

H. E. Widener, Jr.:

Yes sir.

Byron R. White:

— that’s Virginia, how does Virginia ascertain who the residents are for the purposes of voting?

H. E. Widener, Jr.:

By registration sir.

The registration forms are very detailed and complete requiring just —

Byron R. White:

But that’s a permanent registration, isn’t it?

H. E. Widener, Jr.:

Yes sir, it is.

Byron R. White:

So that you don’t have to register for every election?

H. E. Widener, Jr.:

No sir, you only register one time in Virginia.

Byron R. White:

And do you suggest that Virginia has no other device to check up on – to determine who were the qualified electors?

H. E. Widener, Jr.:

No sir.

The — we have to challenge.

Anyone can be challenged.

There’s a — being a nonresident at the polls when he offers to vote.

Byron R. White:

Aren’t they required to post the qualified electors at the voting (Inaudible)?

H. E. Widener, Jr.:

Yes sir.

Well, they post them —

Byron R. White:

Where do they get that — where did they get that information?

H. E. Widener, Jr.:

They only post the poll tax list.

No sir.

There is no requirement to post a registration list.

The registration books are kept by a registrar in every precinct in the state.

In some places, we have central registrars for a whole county or city.

The books are kept in the hands of the registrar.

Byron R. White:

Well, you’re suggesting that the poll tax is no proof of residence and shouldn’t be considered such and —

H. E. Widener, Jr.:

I don’t say it is not any evidence of residence.

I say that isn’t —

Byron R. White:

If that isn’t, what’s the proof of resident — residence?

H. E. Widener, Jr.:

Yes sir.

I don’t say it’s a proof of residence, it is evidence of residence.

There’s no doubt about that.

The payment of any tax is —

Byron R. White:

Do you say it isn’t very good and it wasn’t intended to be that anyway.

H. E. Widener, Jr.:

That’s right sir.

Yes sir.

Byron R. White:

Do you say it is some evidence of residence?

H. E. Widener, Jr.:

Yes sir.

I say it some evidence of residence, payment of a personal property tax is where a man’s family is, where his domicile is, where his actual physical abode is.

All of these things are evidence of residence.

Byron R. White:

And Virginia can require some evidence of (Inaudible) — of residence?

H. E. Widener, Jr.:

I don’t see why they couldn’t require it sir but I don’t think they could acquire a different evidence of residency in state and federal elections.

John M. Harlan:

Can a man who has paid his poll tax in May and then decides he’s — doesn’t want to vote in November or even leave Virginia, go back, go down to registrar and get his dollar and a half back?

H. E. Widener, Jr.:

No sir.

I wouldn’t think that he could once he paid the tax.

I never have heard of anyone trying it sir.

Potter Stewart:

How do you — the system of permanent registration quite a part from this particular issue we have here in this case, how do — what happens when people die?

How do you get them off the registration list?

H. E. Widener, Jr.:

The — there’s a provision for purging the registration book, sir.

The registrar actually takes them off himself.

There are other provisions for purging by other registered voters.

They can come forward and say that the Jones and Smith and Brown have died or moved —

Potter Stewart:

Or moved away, whatever?

H. E. Widener, Jr.:

And the registrar then gives notice to the people and if they don’t appear he takes them off the books.

Potter Stewart:

Is that a — is that something that’s done routinely —

H. E. Widener, Jr.:

In my —

Potter Stewart:

— periodically?

H. E. Widener, Jr.:

In my own community it is, yes sir.

The registrar keeps our books in very good shape.

I can’t speak for other places.

I would guess that possibly in the small country precincts from — maybe that’s better.

They know people more.

Potter Stewart:

Yes.

H. E. Widener, Jr.:

But I think probably they’re kept it in fairly good shape.

Arthur J. Goldberg:

I assume the candidates for office in a contested election are alert to this and their watchers challenge people —

H. E. Widener, Jr.:

Yes sir, we’re allowed to have —

Arthur J. Goldberg:

(Voice Overlap)

H. E. Widener, Jr.:

— poll watchers at the polls.

Each candidate has poll watchers at the counting and any qualified voter can challenge another person when he offers to vote.

When you come in Virginia and ask for a ballot or say my name is Smith, am I on the list?

That is an offer to vote in Virginia.

And at that time he can be challenged.

The — both the majority party and the minority party are represented at the polls.

The people who got the majority in the last general state election have the majority of two judges.

The minority party has one judge.

I don’t know about the practice for clerks of election in other places.

In my hometown we have one clerk and they have one clerk.

So that this — as far as I know, there’s adequate safeguards at the polls for challenging people.

H. E. Widener, Jr.:

If you — a challenge comes out at the polls for a voter there’s a note which the judges of election must administer to the voter and perhaps this answers to Justice White’s question to some extent.

There’s an oath which the judges of election administer to the voter before he is allowed to vote.

If Smith comes up and says, “I want my ballot” and the — one of the judges says, “I challenged Smith on the grounds he’s a nonresident”, the challenge sticks at that time until there’s a long statutory oath and they are also allowed to examine him.

Byron R. White:

But every voter unless he’s — and unless he’s challenged, the voter doesn’t have to make that kind of an affidavit.

H. E. Widener, Jr.:

No sir, that’s right.

You walk in, give them your name, they check you up on the registration books —

Byron R. White:

Well, would you have any idea of — would you be up here arguing if the bill that they sent along with the poll tax had on it the — essentially the information which the certificate has on it and that required witnesses.

H. E. Widener, Jr.:

Yes sir.

Byron R. White:

Yeah.

H. E. Widener, Jr.:

Yes sir, the poll tax — the —

Byron R. White:

What if the fellow who sent back the poll tax to vote in a state election, had to pay a dollar and a half and he had to sign a bill and had said, “I’m going to be resident, I intend to be a resident until —

H. E. Widener, Jr.:

Well, sir if the – I think that the state – if the state would require voters in state elections to file the same certificate I wouldn’t be up here.

Byron R. White:

Well, yes but I’m just saying they put a certificate right on the back of the poll tax bill.

H. E. Widener, Jr.:

And required it to be signed before they could vote.

If the State required the state voter to sign the same certificate, no sir I would not be here.

Byron R. White:

Even though they sent it to him with the poll tax?

H. E. Widener, Jr.:

Well, I would then complain that they didn’t send it to everyone on the registration books.

There was a question asked a few minutes ago about how is it mailed out.

They mailed it out to the people who paid the personal property tax the year before.

This certificates though if — if a state were to adopt that system ought to be mailed to all of the voters not to all of the taxpayers.

The fact that whether a man who owns the personal property tax list or not has nothing to do with whether he is a voter or not.

Byron R. White:

Could they have forms of registration?

H. E. Widener, Jr.:

Yes sir, they are their blank forms they are part of the record in these proceedings.

So you must —

Byron R. White:

Well, isn’t this a — isn’t this really an additional argument that really the certificate requirement reaches people that the poll tax requirement never reached.

The state sends bills to the — only seeks the poll tax, rather that the poll tax would be paid people who paid personal property taxes?

H. E. Widener, Jr.:

Yes sir, that’s true.

Then you must go down and get this certificate of residence, have it witnessed or notarized, say that you will not leave the state until the election.

None of those things the poll taxpayer has to do in addition to the actual filing of the certificate.

The poll tax payments, the dollar and a half was mentioned, that isn’t nearly important as to the fact that you have to pay it for three years.

H. E. Widener, Jr.:

The $5 could make a difference to some voters.

The fact that it must be paid in May to vote in November is the thing that makes the big difference about the poll tax.

How was that (Inaudible)?

H. E. Widener, Jr.:

You walk over the treasurer’s office and pay it and get a receipt, sir.

If I didn’t do that when I want to vote, I have to pay then (Inaudible).

H. E. Widener, Jr.:

No sir.

You could not pay it then.

(Inaudible)

H. E. Widener, Jr.:

No sir.

And if you were on this list you couldn’t vote even though you have the receipts as a matter of fact.

They make up the poll tax list and there’s provision made.

The treasurer posts it down the courthouse.

You then are supposed to go and check the list yourself to see if you’re on it.

If you aren’t on it there’s a provision for getting yourself put back on it.

And if you don’t do that actually the poll tax receipt is not any good at the polls.

Hugo L. Black:

(Inaudible)

H. E. Widener, Jr.:

That’s right sir, yes sir.

William J. Brennan, Jr.:

Don’t you have — you have to be registered even though you paid the poll tax —

H. E. Widener, Jr.:

No sir.

Oh, you have to be registered even if you pay the tax, yes sir that’s correct.

But you don’t have to have registered to pay the tax.

You cannot register to vote in Virginia though at — on state elections in any event unless you have previously paid your poll tax.

It is a qualification both for registration and for voting.

A voter who is coming 21 gets — can register without payment of the tax and gets his first vote free.

The same thing applies to new residents who moves into the state.

He can register without paying the tax because it’s assessable on January 1st.

Byron R. White:

How do you register for federal elections?

H. E. Widener, Jr.:

Under this — well now, it depends on which bunch you’re in sir, a federal voter or a voter in all elections.

They have separated them now.

It used to be — we had one set of registration books.

Byron R. White:

Now you’ve got two.

H. E. Widener, Jr.:

Now we have two, yes sir.

Now for federal elections, you go down to the registrars office on this federal election book and you fill out a certificate which is our form which is almost exactly the same.

The form actually is in the records, it’s a blank piece of paper.

And you have state your — guess what you must state on there, your name, age, residence, I think the names of your parents, how long you’ve lived in the state and where did you last vote and possibly some other information, it’s very complete.

Earl Warren:

Well, does a man who signed one of these certificates go on the permanent voting role then?

H. E. Widener, Jr.:

For federal elections only sir.

Earl Warren:

Yes.

But it is a permanent —

H. E. Widener, Jr.:

Yes sir.

Yes sir it’s a different book just exactly like the book for all elections.

They have —

Byron R. White:

Have to be (Inaudible) to file a certificate before, do you not?

H. E. Widener, Jr.:

Yes sir that’s correct.

The first —

Earl Warren:

Well, that’s what I meant.

He has to file that every year.

H. E. Widener, Jr.:

Yes sir.

He has to come back and file a certificate each year.

Earl Warren:

But if he wants to pay as to poll tax and he gets on there, how about that?

H. E. Widener, Jr.:

No sir, he doesn’t.

Thereafter, he has to file the certificate.

Earl Warren:

Yes.

H. E. Widener, Jr.:

He would have to pay his poll tax or file a certificate each year though.

One or the other is required each year.

Earl Warren:

How would these — how are these forms for the certificates distributed to the public?

H. E. Widener, Jr.:

I don’t know if any provision for distributing them to the public.

I can tell you the practical matter in my hometown.

Earl Warren:

But now it’s given to the prospective voters as to the necessity for them doing this and —

H. E. Widener, Jr.:

I don’t —

Earl Warren:

— where they may get the forms.

H. E. Widener, Jr.:

I don’t think there’s any requirement of it at all in the law.

I don’t think their state or the state officials, the registrars, accounting treasurers, and so forth, are not required to do anything.

The voter is supposed to know to come in and get his form.

Registration is practically the same as in (Inaudible)?

H. E. Widener, Jr.:

Yes sir.

Permanent registration is about the same as the other?

H. E. Widener, Jr.:

Yes sir.

It’s just about the same.

And your point is that the federal elector has to file — renew every year?

H. E. Widener, Jr.:

That’s correct sir.

(Inaudible)

H. E. Widener, Jr.:

Yes sir.

(Inaudible)

H. E. Widener, Jr.:

And if the state hadn’t — had said that the — everybody that votes on every election must file this certificate.

I don’t know if any — more of a classification or anything wrong we’ve done.

If they said the filing of the certificate would entitle us to vote in state elections which could be read into the state’s brief that they filed in this case, they say there’s — it’s equally applicable.

If either system were adopted but we maintained they have — don’t have the right to make a classification of a state voter or a federal voter who has not paid his poll tax.

And that’s what they called the classification that they made in the conclusion of their reply brief.

This is — now, on page 16 they say Virginia should be upheld even if it had enacted a statute affecting only a class and this is the name of the class (federal voters who have not paid their poll taxes).

Now that — that’s the classification that they are — they’re legislating about and we say that they don’t have any right to legislate about it.

What page is that Mr. Widener?

H. E. Widener, Jr.:

That’s on page 16 of the appellant’s reply brief, sir.

John M. Harlan:

You seem to be arguing (Inaudible)?

H. E. Widener, Jr.:

No sir, not entirely.

We also say it’s a violation of Article —

John M. Harlan:

(Inaudible) the requirement that you said (Inaudible) the certificate for voting is across the board, you don’t (Inaudible)?

H. E. Widener, Jr.:

Not the poll tax across the board, sir.

The requirement of the certificate is across the board.

John M. Harlan:

(Inaudible)

H. E. Widener, Jr.:

Yes sir.

Well, the District Court has —

John M. Harlan:

(Inaudible)

H. E. Widener, Jr.:

I’m arguing on Article I, Section 2 in the Seventeenth Amendment, sir.

John M. Harlan:

(Inaudible)

H. E. Widener, Jr.:

Well, yes sir, up to date it has.

The District Court has held as a matter of fact that the filing of these certificates is a qualification to vote.

We maintained that the District Court is right.

Now, the — just — or if for no other reason and there are lots of reasons, the statute itself says it’s a qualification to vote.

The Attorney General has said in two places in the state to General Assembly that they were passing legislation concerning qualifications to vote.

Now, the Article I, Section 2 and Amendment 17 provide that the qualifications cannot be different for members of the House of Delegates and for people voting for Congress and the Senate.

But we have different qualifications here.

This certificate is required of federal voters and this certificate does not entitle according to the state law as the state construes it, this voter to vote in an election for the House of Delegates.

That voter is required to pay a poll tax.

(Inaudible)

H. E. Widener, Jr.:

The Government has said — of the United States that it is an abridgement of the rights given by the Twenty-fourth Amendment.

And on page 10 of the Government’s brief, they say it remains only to show that the Virginia statute in suit, in fact, in process, onerous procedural requirements.

The state has taken the view that the Government says that the state can’t — thereafter legislate concerning any uniform requirement.

The difficulty we see to the Government’s view under the Twenty-fourth Amendment is this.

That if we get into the degree of requirements that is allowed or what is allowed is — how much is allowed to form — we will end up with these cases as a matter of fact.

For example, they’re required two witnesses if they can require two, can’t — they require ten.

We don’t think there’s any use to get to the argument of whether this requirement is reasonable or unreasonable, we say they don’t have any right to do it.

Potter Stewart:

Well, now how do you get it to presidential elections through Article I, Section 2 if it was Seventeenth Amendment?

H. E. Widener, Jr.:

Alright sir, the– as I understand it, at least our court has said in Willis against Commack (ph), its page 43, it’s Judge Keith.

He says, “The object to the Fourteenth Amendment was to secure the right to vote at any election for the choice of electors for president and vice president of the U.S., representatives in Congress, the executive and judicial officers of the state or the members of the legislature thereof.”

And I think that the Fourteenth Amendment would have application to this right because this is not an exclusively state right establishing qualifications for voting.

The state’s brief has argued at great length that the establishment of qualification is the — in exclusive right of the state.

On page 8 of the brief, their opening brief, they state that the states have the exclusive power to create qualifications for voting in all elections and that word exclusive or words of similar import are used a great number of times throughout their brief.

The — we don’t believe that the history of the voting legislation in general bears that out.

Potter Stewart:

I still don’t get the answer to my question.

Potter Stewart:

How do you get a presidential election through Article I, Section 2 or to the Senate (Voice Overlap)?

H. E. Widener, Jr.:

Alright sir, we say that the right of — for voting in federal elections as is a federally protected right, the Yarborough cases held that.

That — although that our case concerned this — of the House I think or something like that.

That it is a federally protected right.

That they have made an unwarranted classification, they have legislated for federal voters only.

We don’t think that they have any right to do it.

The —

Potter Stewart:

Article I, Section 2 in the Seventeenth Amendment refer only to congressional elections.

H. E. Widener, Jr.:

Yes sir, that’s right.

Potter Stewart:

Am I right about that?

H. E. Widener, Jr.:

And we say that they have established a classification.

The — on page 95 of the record, this is the beginning line of one of the Sections, Section 17.1, persons entitled to vote only at elections for certain federal officers.

We say that that the classification itself is not warranted.

That they cannot legislate with regard to that that they just — they just can’t do it.

It’s not the question of whether it’s a reasonable or unreasonable that they have no right to put people in that class.

Then they have gone on and in addition to that, the District Court has pointed out in its opinion in great length the differences between people who pay poll tax and filed a certificate of it and that — about paying the poll tax or filing a certificate is a burden on the federal elector which is not required of the state elector.

And I don’t think that we’re entitled to measure the degree of the burden.

If there’s any burden on this federal elector or does not require for the state elector, we maintain its violation of the Fourteenth Amendment.

Potter Stewart:

Well, we have go to the — am I — do you have to go then to the Fourteenth Amendment to get the —

H. E. Widener, Jr.:

I would — I would rather go —

Potter Stewart:

To get to the (Voice Overlap) —

H. E. Widener, Jr.:

— to the Fourteenth Amendment than to the Twenty-fourth to get to it, yes sir.

Because I think it’s very clear that if they make any requirement of the federal voter and legislate with regard to him that it’s not required of the state voter that they have violated the Fourteenth Amendment.

They have by statute created a class.

They have repeated that in their brief and now named it as class.

The federal voter who’s not paid his poll tax must do A and B and C.

We say they have no right to do it.

Potter Stewart:

That’s the Fourteenth Amendment.

H. E. Widener, Jr.:

Yes sir, yes sir.

John M. Harlan:

Well, on that theory, the Twenty-fourth Amendment applies to people who vote in federal elections.

Potter Stewart:

That’s right.

H. E. Widener, Jr.:

We would say that the Twenty-fourth Amendment, sir, creates a prohibition —

That’s what it (Voice Overlap) —

H. E. Widener, Jr.:

— what they can’t require rather than what they can — sir?

The Twenty-fourth Amendment is a prohibition.

It just erased the poll tax.

We’re then creating a class.

There is a good bit of argument in the —

John M. Harlan:

What do you say about the burden (Inaudible)?

H. E. Widener, Jr.:

No sir, I think that some of the certificates were filed.

I know there were some who were filed.

How many?

I’m just not able to say it.

John M. Harlan:

Do you think this is a more burdensome requirement (Inaudible)?

H. E. Widener, Jr.:

In my own mind it is, yes sir.

I’d much rather stick a check for a dollar and a half in the mail than have to go down to the treasurer’s office, get a certificate, take it out, fill it in, find a witness, get it back to the treasurer or else pay a notary fee.

Perhaps there are no notary fees in Richmond.

There certain are (Inaudible).

John M. Harlan:

Supposed that you just show up and register (Inaudible)?

Where do you have to go (Inaudible)?

H. E. Widener, Jr.:

I think it would depend entirely on whether the registrar or the treasurer whoever gave it wants a notary and wanted to take your acknowledgement, you wouldn’t have to if he didn’t want to.

There’s no requirement of the law —

John M. Harlan:

(Inaudible)

H. E. Widener, Jr.:

You have — either have to have two witnesses or a notary.

And are — one thing we say is, if you can have two witnesses, why can’t you have ten witnesses?

Why can’t — they’re required a dozen?

(Inaudible)

H. E. Widener, Jr.:

Yes sir.

But they have required two witnesses or a notary.

They — you can do either one.

William O. Douglas:

You should get a witness (Inaudible)?

H. E. Widener, Jr.:

I could, yes sir.

William O. Douglas:

(Inaudible)

H. E. Widener, Jr.:

Yes sir, that’s right.

But whether — what — they have to have two witnesses, sir.

They — the — or one witness would not suffice.

Arthur J. Goldberg:

Suppose that you were a rich man, can you (Inaudible)?

H. E. Widener, Jr.:

I would say that it would sir.

Arthur J. Goldberg:

(Inaudible)

H. E. Widener, Jr.:

I would say that it would sir.

I would rather pay him the tax, I do that.

But right now, (Inaudible)?

Arthur J. Goldberg:

Yes sir.

There’s nothing it would require him to send you one, I don’t think in the statute though.

Hugo L. Black:

(Inaudible)

H. E. Widener, Jr.:

Yes sir, you could do that.

William J. Brennan, Jr.:

Why (Inaudible) under the Fourteenth Amendment?

H. E. Widener, Jr.:

Because we say that that you will get into — getting to the reasonable — that whether or not a restriction is reasonable or unreasonable.

William J. Brennan, Jr.:

Well, will you if you accept the — as I understand the Government’s proposition that this requirement is something in lieu of the poll tax and therefore the equivalent of the poll tax it therefore violates the Twenty-fourth Amendment, that wouldn’t get — that argument gets you in to know — weighing —

H. E. Widener, Jr.:

What — no sir, that argument that — just as —

William J. Brennan, Jr.:

You don’t embrace that argument?

H. E. Widener, Jr.:

The one that you’ve stated sir, I would embrace but I do not embrace the fact of whether or not the burden that is put on this voter is reasonable or unreasonable.

I do not — I don’t think they have a right to put any burden on him —

William J. Brennan, Jr.:

(Voice Overlap)

H. E. Widener, Jr.:

— under the Fourteenth —

William J. Brennan, Jr.:

— making the argument that this is burdensome?

H. E. Widener, Jr.:

Yes sir.

Apparently they are.

That’s why I say —

Byron R. White:

— it seems to me that the — your argument also is that you say that this really isn’t — that the qualifications for the federal elector really aren’t equivalent to that of the state.

H. E. Widener, Jr.:

That is correct sir.

Byron R. White:

Which your — to me is of — is it equivalent or not, is a way of measuring operation rather than they’re right or wrong in your argument.

H. E. Widener, Jr.:

We say they didn’t have any right to legislate concerning it sir.

Byron R. White:

For example, you wouldn’t say really — do you think here, your argument to the extent that federal electors have to file a pink registration statement and that the state electors have to file a white registration?

H. E. Widener, Jr.:

No sir, I wouldn’t.

Byron R. White:

You wouldn’t and then yet your right — they just have no right to put them in a separate category, would — wouldn’t you argue that?

H. E. Widener, Jr.:

I do say that they haven’t a right to put them in a separate category and then provide —

Byron R. White:

Well, what — you don’t think they ought to be able to make — to file a pink registration statement.

H. E. Widener, Jr.:

If everybody else had to file a white one, that’s alright sir.

But I don’t think that you could put them in a category and file a pink slip —

Byron R. White:

— a burdensome, aren’t they?

They have to get to — you have to get (Inaudible) and understand the difference in the qualifications?

H. E. Widener, Jr.:

Well we say that there — if it’s a — in any difference in the qualifications, I don’t think pink and white would be a different qualification, sir.

The filing or not filing, I do think it’s different.

If you had — one had —

Byron R. White:

More burden.

H. E. Widener, Jr.:

Sir?

Byron R. White:

More burden.

H. E. Widener, Jr.:

Well — if that’s the way the court puts it sir.

Thank you, sir.

Earl Warren:

Mr. Greene.

Harold H. Greene:

Mr. Chief Justice may it please the Court.

We submit that the Virginia laws are invalid under the Twenty-fourth Amendment itself.

The Twenty-fourth Amendment provides the right to vote in certain federal elections, shall not be denied or abridged upon the kind of failure to pay poll tax.

We believe there was an abridgement here because the legislation imposes a burden on persons who have not paid the poll tax solely because they have not paid the poll tax, because that burden is an unnecessary and unreasonable burden and because it is precisely a burden of the type which was meant to be reached by the Twenty-fourth Amendment.

William J. Brennan, Jr.:

Well, let’s see.

Is it your position that this is nothing for the device to do the same thing that the outlawed poll tax did?

Harold H. Greene:

Not precisely.

If it were — if — to argue that would only be a device to reach the same result as the poll tax, you might have to go into purpose or motive and I don’t think it’s necessary in this case to do that.

It has a bearing.

Harold H. Greene:

The fact that the type of device that’s attached to this procedure is similar to the cumbersomeness in the type of rejections that were made to the poll tax, has a bearing on the results on whether this is or is not an abridgement but standing by itself.

I don’t — we do not argue that that alone is — would be sufficient or would cause for the invalidity of —

Byron R. White:

I would think you have to get pretty close to that argument so to make it violative of the Twenty-fourth Amendment, isn’t it?

Harold H. Greene:

Well, if the Court please —

Potter Stewart:

Your point is as I under — he — tell me if I understand it correctly that the Twenty-fourth Amendment confer the right upon all voters in federal elections to vote without any impairment of the poll tax.

And that here, Virginia has put a price on the exercise of that right and they cannot do that.

Harold H. Greene:

That is correct.

Now, we say further that if — it’d be assumed that Virginia argues that they must — they need to do that and we are willing to concede or assume for purpose of this case that if a case of absolute necessity were made out by the state that there’s no other way in which they can achieve the legitimate governmental objective, namely the checking on residence.

And if the means are adopted to accomplish that objective were the most reasonable and the least cumbersome possible, perhaps this type of device would then be appropriate.

The Court need not reach the question in this case —

William J. Brennan, Jr.:

Would be if (Voice Overlap) —

Harold H. Greene:

— were there any device?

Hugo L. Black:

if I get you — are you saying that this requirement is spreaded with all the impediment that made the Congress decide — to outlaw the poll tax.

And is that the sense on which you’re using the burden?

Harold H. Greene:

Yes sir.

Well it — and also in the sense that it is a practical burden as I will try to show, it is a —

William J. Brennan, Jr.:

(Inaudible) I must say — well, go on.

Harold H. Greene:

Whether if I’m — if I may proceed, the concept of abridgment as has been used and understood in connection with the Fifteenth and Nineteenth Amendments is that if any burden, any requirement is placed upon a person because of his race or sex in connection with voting, that would be an abridgement of the Fifteenth and the Nineteenth Amendments.

In the same way here under the Twenty-fourth Amendment where a requirement, a burden is placed on the person solely because he avails himself on his right under the Twenty-fourth Amendment, not to pay a poll tax that would be a burden in the three-judge court in the equivalent Mississippi case, Gray against Johnson held just that.

Now, the state comes —

John M. Harlan:

What (Inaudible) — what would be the Government’s position (Inaudible)?

Harold H. Greene:

Now, this is, as I understand it that —

John M. Harlan:

(Inaudible)

Harold H. Greene:

This would be required only of a person who had not paid his poll tax.

John M. Harlan:

(Inaudible)

Harold H. Greene:

No, I — that’s why in answer to the previous question, I said this would be a much harder case.

It might well be.

We think it might well be as that too would be invalid.

But the Court need not concern itself in this case with that example because here we have the type of burden which is very cumbersome and which —

John M. Harlan:

(Inaudible) get out of it is that your argument essentially comes down with the proposition that the affidavit, the certificate requirement is just a burden (Inaudible)?

Harold H. Greene:

It is a burden which is most severe or at least as severe as the payment as the poll tax.

John M. Harlan:

(Voice Overlap)

Harold H. Greene:

It is the burden of the type —

John M. Harlan:

(Inaudible)

Harold H. Greene:

That’s right.

It is a burden of the type which the framers of the Twenty-fourth Amendment had in mind and I might say this, the burden —

John M. Harlan:

(Inaudible)

Harold H. Greene:

That it is a burden?

Well, the mechanics for obtaining this residence certificates are as follows.

First of all, it must be filed in every election in connection with every election it’s not from that type of thing.

It must be filed within the specified time between October first of the year proceeding the election and six months before the election with — would work out in May of the year of the election.

Apparently as I read the record, if the certificate is received subsequent to May, it will not be considered at all, the registrar would simply — the treasurer will simply give it no validity whatever.

So it must be filed within a specified very definitely limited specified period of time.

John M. Harlan:

Are there no standards where the (Inaudible)?

Harold H. Greene:

No sir.

The poll tax is mailed out to the voter.

He doesn’t have to get — go out and get it.

Now, of course the state says and the certificate can be typed out or written out by the applicant himself and I don’t think that’s a greatly — significantly different burden in obtaining this certificate if you have to type it out —

Byron R. White:

The poll tax has to be paid within a certain time before the election?

Harold H. Greene:

The poll tax has to have been paid by May, but it may be mailed it anytime.

You can’t vote if you haven’t paid it by May but you can mail it at anytime.

You receive the bill at your home and then at anytime after you received the bill, you mail in your check and that’s all you have to —

Byron R. White:

So, you have to do it by May.

Harold H. Greene:

You can do it by mail, yes sir.

Byron R. White:

But if you have to do it by May, that’s what (Inaudible) — how —

Harold H. Greene:

You have to do it by May to vote in that election.

Byron R. White:

Right.

Harold H. Greene:

That’s correct.

But here, you have to pick up the certificate or make it out yourself at one office.

You have to fill it out —

Byron R. White:

But the poll tax bill had on it just a statement that said, I choose not to pay the tax and we’ll vote only in federal elections.

Then they get to return the bill on.

That’s all the federal elector had to do, you wouldn’t have any problem.

Harold H. Greene:

I wouldn’t say that wouldn’t have any problem because you might still then have to determine the question were there any kind of requirement imposed on a non-poll tax payer solely because he’s a non-poll tax payer is valid under the Twenty-fourth Amendment.

William J. Brennan, Jr.:

Now, Mr. Greene after all that — after all the — the amendment abolished the poll tax for a reason, is it?

Harold H. Greene:

For several reasons.

William J. Brennan, Jr.:

Alright, for several reasons.

Now if these requirements serve those same reasons, why — isn’t that within the band of the Twenty-fourth Amendment?

Harold H. Greene:

Well, it might be.

Of course that would reach also the — that would — that is true if it weren’t solely for that reason.

But of course the poll tax was abolished.

I couldn’t tell the Court that the poll tax was abolished solely for the reason that it was a cumbersome requirement.

It was also abolished for the — because of the fact that it involved the expenditure of money which was certainly one of the reasons Congress had in mind.

Now, as to whether which of those ought to be given more weight, whether the fact that this requirement is somewhat in the same area would be sufficient to cause invalidity per se of the requirement, I — is again a question which — as I say is a harder question than what we have here.

Here we happened to have all of the factors present.

We have a cumbersome requirement.

We have one that is imposed on people solely because they are trying to avail themselves of their Twenty-fourth Amendment right.

And we have a requirement which is very analogous to at least some of the objections that people had to the poll tax.

So that on that aspect of it that would be the narrowest basis on which this case could be desired.

John M. Harlan:

(Inaudible)

Harold H. Greene:

That’s correct.

John M. Harlan:

The poll tax (Inaudible)?

Harold H. Greene:

Well, we of course challenged that the state’s premises in this regard are correct.

We don’t believe that the poll tax ever was a — an evidentiary requirement or that it has ever been used in that manner.

And I might say on this issue at least insofar as the Twenty-fourth Amendment is concerned, the state has a very heavy burden because they are putting a burden on the exercise of the Twenty-fourth Amendment right and they have the job of justifying that this is a reasonable burden and they can — if they cannot justify it this is a reasonable burden unless they can show that the poll tax in fact and as a matter of legislative intent was a residence requirement which I think it was not.

The constitution of Virginia list of paying a poll tax in residence is two entirely separate qualifications and not one is a proof of the other.

So far as we have been able to determine (Inaudible) — and the state has not pointed out differently.

Until November of 1963 no one has ever dreamed that the poll tax was a requirement, was a proof of residence, it was always something else.

It was an — means of raising revenue or as the Supreme Court of Virginia has pointed out, it was a means of restricting the electorate to those persons who are sufficiently interested in governmental affairs to pay their poll tax at an early time.

Now in fact, it does not — the poll tax does not really prove residence.

Harold H. Greene:

It — the check on residence might be necessary with respect to two classes basically, the persons who are coming into the state for the first time and people who have been within the state, have registered, have voted, and that since moved out and would still like to vote again.

As to the first class, people who have never been then tried to vote.

The real proof of residence, the real check on residence is the registration requirements because that’s the first thing you have to do.

This legislation recognizes that registration is the real check on residence as to those people because you do not have to obtain the certificate in the year in which you register.

So that when a person comes in, he — the state knows that he is a resident by virtue of the fact that he registered permanently at that time and he can be examined at that time as to his residence.

Hugo L. Black:

Can he required to — on your judgment under the Twenty-fourth Amendment in order to vote in the Virginia elections where they are electing Representatives and Senators?

Harold H. Greene:

Can he be required to —

Hugo L. Black:

Try to register?

Well what in your judgment would be the effect of that?

Harold H. Greene:

He can —

Hugo L. Black:

Must he register —

Harold H. Greene:

— be required to register — everyone is required to register on — at one (Voice Overlap) —

Hugo L. Black:

He is, do you agree to that?

Harold H. Greene:

Yes, yes of course.

Hugo L. Black:

I don’t think anybody have used the word abridge.

I thought the defendant use the word “abridge”?

Harold H. Greene:

I was intending — I — if I didn’t, I meant to.

Hugo L. Black:

I’ve heard anyone used it this morning.

Harold H. Greene:

I meant to.

If I didn’t I meant to rely —

Hugo L. Black:

I gather —

Harold H. Greene:

— on the abridgement clause.

Hugo L. Black:

Looking at the words of the amendment, it says this, he should not be denied a right — citizens to vote in these elections, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Then your whole issue whether or not is a right to vote as abridged.

Harold H. Greene:

Well I intended to state that.

If I didn’t I’m sorry.

Hugo L. Black:

But isn’t that —

Harold H. Greene:

That is right.

That is our contention that the right to vote —

Hugo L. Black:

Wouldn’t that be better than the word burden?

Harold H. Greene:

No.

Well, the —

Hugo L. Black:

Maybe burden might be an abridgement, because wouldn’t it be better to talk about abridgment.

Harold H. Greene:

Well, we’re only talking about burdening because the right is abridged if it is burdened in the sense that the requirements are placed upon it then you have an abridgement.

If the abridgement is the consequence which follows from the burden which follows from the additional requirement that’s put on.

Hugo L. Black:

Doesn’t the amendment provide itself what should be considered an abridgement?

Anything that’s done by a reason of the requirement to pay (Inaudible) a poll tax, isn’t that what it says?

Harold H. Greene:

Well, that —

Hugo L. Black:

By reason of failure to pay a poll tax.

Harold H. Greene:

I think that’s right.

You — if — it is perfectly proper —

Hugo L. Black:

Then I suppose our issue as the courts below was to do decide whether or not within the common sense meaning of the term abridge, what’s been done here and what you do, if I am to vote, abridges his right to vote where a con — where the constitution evidently intended to be holding completely free any impediment of any kind of character that abridge his right to vote.

John M. Harlan:

No, by reason of the payment of the poll tax.

Hugo L. Black:

Important by reason of paying the poll tax.

Harold H. Greene:

Well, that’s correct.

And as I — that’s quite true and I think the Court could hold and it could be argued that any requirements that’s placed on a person solely because he has not paid the poll tax is an abridgment and I’m not —

Hugo L. Black:

Well then–

Harold H. Greene:

I’m not particularly disavowing that argument.

Hugo L. Black:

Would that be a strange construction of a —

Harold H. Greene:

It’s no — I’ve —

Hugo L. Black:

— of a constitution amendment perhaps, my question wrong?

(Inaudible) when the man has to register like the other people I should say.

He has to register to vote, doesn’t he?

Harold H. Greene:

That’s right.

Hugo L. Black:

And they know he is registered, they know he is there.

Harold H. Greene:

That’s right.

Hugo L. Black:

And if they wanted to do it when he registers they could ask him if he’s living at — (Inaudible) street or some place else?

Harold H. Greene:

Well, as a matter of fact, Mr. Justice Black, the state could do the same thing if the other 44 states that have permanent registration are doing and it is doing what the other 44 states are doing, to check on residents.

They have a challenged provision at the polls.

They have provisions for purging those who are no longer residents.

Harold H. Greene:

They have criminal penalties for persons who vote not withstanding the fact that they are not residents.

And those are all the means and devices which other states, the other — or the other 44 states have found to be sufficient to deal with the problem of nonresidents and none of these states has found it necessary to add in addition to this complicated, cumbersome, peculiar residence certificate requirement.

So that’s — that is quite —

Hugo L. Black:

Well, I — what I’m getting at is, why can’t they when they considered residence of purging and challenging, why can’t they consider this point of whether he is a qualified voter then.

Harold H. Greene:

Then — well I think they could, they certainly could.

And they should and that’s — as I say that’s all that’s really needed so far as residence is —

Hugo L. Black:

What your claiming as I understand it is the right to utilize the method which they say was utilized for that purpose before, saying that since he doesn’t now have to pay a poll tax.

They want to transfer and substitute for — requirement that they required for registration with the requirement now for him to vote.

Harold H. Greene:

That’s right.

And the — as I say the answer is number one, the premise that the poll tax was used for that isn’t true.

The second answer is that they have sufficient devices now to deal with problem of voting by nonresidents.

And therefore this peculiar requirement which is in the area of the devices to be dealt with by the Twenty-fourth Amendment is wholly unnecessary and can really have no other purpose except to perpetuate the difficulties inherent in the poll tax.

What would be — if this — (Inaudible) holding the way they all outlawed the poll tax, (Inaudible) established as an abridgment in this case?

Harold H. Greene:

It does in one of the respect that the poll tax dealt —

(Inaudible)

Harold H. Greene:

Well, it may well be enough.

I’m not arguing that it’s not enough.

As I say in this case we have all these additional factors which could be taken into account to strike down this legislation.

Earl Warren:

Number 123.

Joseph C. Carter, Jr.:

Mr. Chief Justice, we were given 15 additional minutes to answer the Government in this case.

Earl Warren:

Oh, I beg your pardon, I —

Joseph C. Carter, Jr.:

Court please-

Earl Warren:

I thought you had taken your —

Joseph C. Carter, Jr.:

Oh, I beg your pardon, 45 minutes.

Earl Warren:

You will —

Joseph C. Carter, Jr.:

You must excuse me, I’m sorry.

Earl Warren:

We will give you a few minutes to answer.

You go ahead and answer.

You did it mistakenly but you did have your full time.

Joseph C. Carter, Jr.:

I’m very sorry.

Earl Warren:

It’s alright.

You take a few minutes —

Joseph C. Carter, Jr.:

I thought I have (Voice Overlap) —

Earl Warren:

— Mr. Carter to answer the Solicitor General.

Joseph C. Carter, Jr.:

If the Court please, first of all let me point out one misquotation which was made by counsel for the appellees and I’m sure unintentionally in the heat of the questioning he said in showing how unreasonable the certificate was that it had to be verified by two witnesses.

On page 10 of the record in Subparagraph B of this Section before you, it says it would be notarized or witnessed by at least one adult.

So one witness only is required.

Now, as to the equal protection argument that’s been made here, I challenge anyone to look at the statute in question and tell that it classified federal voters and state voters in terms it speaks of every person, any person.

So it does not make the classification.

Now we did say in our reply brief that even conceding that it made a classification of federal voters, that classification would be invalid under the rule of Pope versus Williams, a Maryland case which was cited and relied on very heavily by this Court only yesterday in the case of Carrington versus Rash.

And we believe that under the language of both of those cases, this particular provision of Virginia Code would be valid as a classification even if it did — even if it were limited to federal voters only which is not —

Potter Stewart:

Well, as Mr. Justice Harlan had suggested it’s a classification of the Twenty-fourth Amendment itself makes, is it not?

Joseph C. Carter, Jr.:

That is quite correct and many of the enactments of the General Assembly in 1963 were classificate — bringing into law the classifications of the Twenty-fourth Amendment made.

Now, in answer to the contention made by the Government, the questions of Mr. Justice Harlan and Mr. Justice White got right at the heart of their contention because if you read their brief, you will see that what they are saying is that anything which is burdensome, onerous, harsh, oppressive, and which would force you to pay the poll tax would be invalid under the Twenty-fourth Amendment.

We would concede that if it had the effect of forcing you to pay the poll tax and was so unreasonable and so arbitrary that it did that then it would be invalid under that amendment but here —

John M. Harlan:

I see you have to go a little further than that if it has that calculated tendency (Inaudible)?

Joseph C. Carter, Jr.:

Even conceding that, Your Honor, we believe that it is not true in this case that the requirement is reasonable and not at all burdensome.

Now pushing the Government’s argument to its fullest extent, let us supposed that Virginia did a way with the poll tax and in place of it adopted an annual registration system which many states have.

And let’s say that they declared in making that constitutional amendment that they were doing it as a substitute for the poll tax.

Now would that be invalid?

We contend that it clearly would not be and that the Government’s argument falls apart completely and when it’s viewed in that light.

In conclusion, I would like to say just a word about the abridgement argument which was brought up here.

It’s our contention that if you look at the legislative history of this particular amendment, you will see that it was a specific and pinpointed as any amendment to this constitution has ever been.

Senator Harlan introduced the resolution in about five sessions of Congress and he spoke at — on it at every bar association and other meeting he held during that period of time.

And he said repeatedly that the only objective was to do a way with the price on the vote.

And that he did not intend his resolution to upset the state election machinery anymore than that.

So we contend that the word abridged in this context and with this legislative history means to deprive or to cut off or to curtail by doing something else that is so harsh and so oppressive that it has the tendency to make people pay the poll tax and thereby violates the amendment.

In no —

John M. Harlan:

Are there any — excuse me — are there any figures that will show that — how many of those who voted in federal — the last federal elections have filed the affidavit and the state should know (Inaudible)?

Joseph C. Carter, Jr.:

If Your Honor please I should have gotten to that at the outset because I believe the Court has been mislead in this respect in trying to answer these questions.

Joseph C. Carter, Jr.:

All of us have speculated as if this law had been in effect for sometime and then we did have some practical experience under it.

Truth of the matter is that it was in effect for only two months.

It was declared invalid before you had any real experience and it was not in effect in any elections during 1964.

We believe that the Government’s argument on the Twenty-fourth Amendment is so broad that its — averts the intent of the framers of that amendment and constitutes an undue interference with the power of the states over voting qualifications.