Oregon v. Mitchell – Oral Argument – October 19, 1970 (Part 2)

Media for Oregon v. Mitchell

Audio Transcription for Oral Argument – October 19, 1970 (Part 1) in Oregon v. Mitchell


Warren E. Burger:

43 and 44 are submitted and in 46 and 47, Mr. Solicitor General whenever you are ready.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

These cases are original suits brought by United States against the State of Arizona and the State of Idaho, both arise, as did the previous two cases under the Voting Rights Amendment Acts of 1970, the full text of which is set out in the appendix to our brief in this case.

It’s also set out in the appendix to our brief in the Arizona and Texas case, the voting rights portions are, and turning to page 78, I would point out the way the statute is put together after what has now become Title I which extends the 1965 Voting Rights Act and also steps up the controlling date to the 1968 election in the alternative and not in place of the previous one.

Then we come to Title II, which extends the abolition of literacy requirements to all of the states.

That is involved in the Arizona case, number 46 which involves the voting age requirement too and then in Section 202 of Title II, we have the fairly extensive provision, dealing with residency requirements and that along with voting rights is involved in the Idaho case, number 47.

As Mr. Wright pointed out, there is in Section 205, a separability clause, it’s in an odd place, but its language is certainly broad enough to be applicable to any of the provisions of the act and finally, in Title III, we have the voting rights provisions which were the subject of the argument this morning.

As I have indicated, both of these cases involve voting rights.

I will not repeat the argument which I gave in the Texas and Oregon cases, but I do have a few supplementary points which I would like to advance.

The Chief Justice asked whether in Carrington against Rash, the two classes were not identical and this made the restriction against one of them in doubt.

I think I can respond to that more precisely with respect to Evans and Cornman which also dealt with exclusions based on residence.

There, as I mentioned in my argument, there were differences between the two classes concerned, residence in the enclave, did not pay real estate taxes either directly or through their rent.

They were subjected to somewhat different criminal provisions.

Insofar as they were subject to the Maryland law, it was pursuant to adapting provisions of the federal statute.

The issue of residence involved there like that of age is one as to which in general, there is a substantial state interest, of course.

If the question of drawing fine lines were one of state province, then we would have expected the Maryland statute to be upheld, whether people are Maryland residents as a matter now in law which seemed to be in the first instance, a matter for the Maryland legislature, but we think that the Court was right in that case, in concluding that the law violated the Equal Protection Clause.

In the Cornman case, the Court readily could conclude that the basis offered by Maryland for the distinction, was is inconsistent, was insufficient.

Warren E. Burger:

Is it really accurate Mr. Solicitor General to say that they are in Maryland or that they are in an island surrounded by Maryland and —

Erwin N. Griswold:

Well, I think Mr. Chief Justice, the Court decided that they were in Maryland.

The Court certainly said in its opinion that it was within the external boundaries of Maryland.

Warren E. Burger:

I suppose if it hadn’t been for the on play factor, it wouldn’t it be necessary to be so circumspect in the use of the terms, would they?

Erwin N. Griswold:

No, I suppose not, but I think the Court must have decided that they were residents and citizens of Maryland, otherwise they couldn’t vote.

In this case, the Court alone — in that case it was black and white, either they are in or they are out, there is no numerical problem, no line drawing problem and the Court, we think properly held that they were in Maryland, and that for Maryland to say otherwise was not supported by a sufficiently compelling reason to take it out of the Equal Protection Clause.

In this case, the Court alone might not be able to reach such a conclusion.

Choosing between 18 and 21, requires line drawing which a court is not particularly well qualified to do.

Congress can do it and Section 5 of the Fourteenth Amendment, we submit, permits it.

Now let me go back to the South Carolina against Katzenbach case and recall attention to the specific provisions of the Voting Rights Act of 1965 which was upheld there.

The literacy test provision sustained there had a trigger provision, fixed by Congress under which the provisions of the statute went into effect and states where less than 50% of the possible voters had registered or had voted.

Now this might have been 40%, might have been 60%, but Congress made it 50%.

This figure was never questioned, if Congress had power to act at all, the establishment of such a figure was exactly what it was qualified to do, better qualified on the whole than the Courts.

Erwin N. Griswold:

In Katzenbach against Morgan, the statute upheld was applicable to those who studying in American Flag schools, where — who studied in American Flag schools were Spanish, was the language, had proceeded through the 6th grade, not the 4th grade or the 8th grade, but the 6th grade.

I think this Court might have found it very difficult to decide simply under the Equal Protection Clause whether the 4th or the 8th or the 6th, I can’t, it’s hard for me to think of the record which would really support such a determination.

In both of these cases, Congress proceeding under the enforcement powers of Section 5 of the Fourteenth Amendment drew lines and fixed exact points.

This is the kind of line that Congress is well qualified to draw and this was upheld by this Court and I may go back to the definition by Congress under the Eighteenth Amendment of what constituted an intoxicating liquor.

Some of us recall 3.2 beer and I guess that was exactly the same kind of a line well-drawn by Congress, perhaps difficult for this Court to draw pursuant to the power expressly granted to Congress in that case to enforce the Eighteenth Amendment.

Byron R. White:

So Mr. Solicitor General, the Section 5 gives Congress equal power to exclude as well as to include, 3.2 beer —

Erwin N. Griswold:


Byron R. White:

–- 3.2 beer was excluded, wasn’t it?

Erwin N. Griswold:

3.2 beer —

Byron R. White:

Was excluded —

Erwin N. Griswold:

— was excluded.

It was held not to be intoxicating if it was not more than 3.2.

Byron R. White:

That was Congress’ judgment?

Erwin N. Griswold:

As was Congress’ statement.

Byron R. White:

And we are bound to accept that?

Erwin N. Griswold:

The Court decided that it would accept it and I suspect on the basis that –- well, undoubtedly on the basis that it was a valid law.

Byron R. White:

But the same standard for exclusion as inclusion?

Erwin N. Griswold:


I am not sure if Congress had passed a statute saying that 50% spirits is not intoxicating, I suppose that would have been found beyond Constitution.

Byron R. White:

Well, I would suppose there might be some limits, but how about the standard by which we judge the validity of congressional action under Section 5.

The same for exclusion as inclusion?

If it says cough syrup is within the reach of the Eighteenth Amendment, if it’s got something intoxicating and in a certain amount —

Erwin N. Griswold:

Yes Mr. Justice I suppose that if Court would have sustained an act of Congress which forbade the sale of anything with any alcoholic content.

Byron R. White:

And you would use the same standard in your view to judge the validity of congressional act which excludes from coverage as well as includes?

Erwin N. Griswold:

I want to be careful to not to jump from the Eighteenth Amendment analogy I have given and the Interstate Commerce analogy to which we have referred and the Fifteenth Amendment one to the Equal Protection situation because I do not contend that Congress has power to say that anything which this Court had held to be a violation of Equal Protection shall henceforth not be a violation of equal protection.

I have already made reference to footnote 10 which in the Katzenbach and Morgan opinion which represented a difference of opinion in the Court and I stand with the majority view that the power of Congress is to bar actions which it regards as denials of equal protection above and beyond what would be denials of equal protection without the act of Congress.

That’s why I am hesitant about as entering about inclusion and exclusion.

I also said this morning that if Congress does extend the enforcement of the Fourteenth Amendment I think it can thereafter repeal it’s extension, but I do not think that it can repeal a decision of this Court which has been reached without the effect of any act of Congress.

Now why is that?

Why should not —

Erwin N. Griswold:

Because the Constitution itself says that nor shall any state deny, deprive any person of the equal protection of the laws and this Court has held that a state has deprived a person of the equal protection of the laws, nothing that Congress does under Section 5 can be an action by Congress to enforce the Fourteenth Amendment.

It can be an action by Congress to limit the enforcement on the Fourteenth Amendment, but not to enforce the Fourteenth Amendment.

Well, if Congress thinks that action of this Court frustrates the Fourteenth Amendment, why isn’t that enforcement —

Erwin N. Griswold:

I have -– I think that that might well be and we have already referred to that and specifically the Virginia literacy statute which this Court held to be consistent with the Fourteenth Amendment, was thereafter made ineffective by the act of Congress under Section 5 involved in South Carolina against Katzenbach.

I don’t know that Congress necessarily decided that this Court’s decision frustrated the Fourteenth Amendment.

But I think it did decide that under all the circumstances it did not effectively enforce the Fourteenth Amendment.

Now let me turn to, first to the case of United States against Arizona and the literacy problem which is involved there, arising under Section 201 of the statute.

Under that provision, Congress has provided that any test or device which is a phrase taken out of the 1965 Act as a prerequisite for voting and for which we have used the shorthand of literacy and requirement, shall be invalid in all states of the country to which the trigger provisions of the 1965 Act as extended, do not apply.

The effect of that is that literacy requirements are made invalid throughout the United States.

I can not say that they are exactly the same in every part of the United States because any state which is within the triggered class is also subject to further provisions under which it can not make changes in these laws without either the approval of the Attorney General or of the District Court of the United States for the District of Columbia.

Those provisions with respect to approval are not applicable in Idaho or Minnesota, they may be applicable on one county of Arizona and they applicable in Alabama and Mississippi and the other states which were subject to the 1965 Act.

So the question is as to the power of Congress, seeking to act under Section 5 of the Fourteenth Amendment or other provisions which might in this case include Section 2 of the Fifteenth Amendment and even Section 2 of the Thirteenth Amendment, has power to extend the abolition of literacy requirements to the entire country.

I am inclined to think that the way the argument has developed, we have argued the most difficult case first, that is that the voting age requirement raises the most serious intellectual and constitutional problems.

In my own view, the argument with respect to residency is a fortiori from the previous discussion and the argument with respect to literacy is a multo fortiori from the previous discussion.

We have here an express determination by Congress that literacy devices do work out discriminatorily.

We have the foundation of South Carolina against Katzenbach which upheld the validity of the 1965 statute and more recently we have the decision of the Court in Gaston County against the United States which held that merely because a county’s current practice was non-discriminatory was not enough to take it out from the 1965 Act.

If the continuing effect of past discrimination in education continued to produce persons who were now illiterate and who would be barred from voting, not because of any current discrimination, but because of past discrimination that, that was enough to sustain the continued application of the statute.

Now we have a very similar situation here.

It is not suggested that there has been past discrimination, at least within recent times in education in Arizona, but it is very clear that large numbers of persons have moved into Arizona from other parts of the country where they have been subjected to educational discrimination.

What the Congress has done is in no sense designed to punish Arizona for any past derelictions.

It isn’t suggested that there have been such derelictions.

Warren E. Burger:

You say that’s true with Oregon and Idaho also?

Erwin N. Griswold:

Yes Mr. Justice I think it is true to some extent with Oregon and Idaho–

Warren E. Burger:

To a substantial degree?

Erwin N. Griswold:

To an appreciable degree and I suppose any person who is illiterate because of this and can’t vote is subjected to it, besides which it seems to me, is this is a kind of thing upon which Congress can rightly and properly adopt a national policy which shall be effective throughout the United States.

Warren E. Burger:

Well, that’s a little different because they do not need any evidence in the latter situation, do they?

If they are enacting on a premise that you just suggested then, I would take it there would be some evidence in the legislative history to support that sort of a finding.

Erwin N. Griswold:

Well, Mr. Justice there — Mr. Chief justice there is complaint by Arizona in this case that Congress held no hearings in Arizona and did not develop the facts with respect to Arizona.

And I think that is immaterial because Congress did have before it in the legislative history, extensive material as to the movement about throughout the country.

It is perfectly true that more in some areas and more to, I will have to say, in big cities than elsewhere of millions of people who had been subjected to discrimination of this kind in the past and Congress concluded — Congress and its members were well aware of this situation and could properly find as it did that the statute could be based on the enforcement powers under both the Fourteenth and the Fifteenth Amendments.

Erwin N. Griswold:

I do not think that this is a matter which has to be separately adjudicated on a state by state or county by county or city by city basis.

Its is a national problem.

Congress is our national legislature and undertook to dispose it on a national basis.

This is particularly referred to in the testimony of the Attorney General in the Senate hearings is on pages 42 to 46; where he dealt at some length with the house.

In the house hearings in the summer of 1969 when the provision for the extension of the literacy — the abolition of literacy requirement was presented.

The Attorney General testimony appears on pages 42 to 46 and deals with the matter on a national basis.

Now in the Lassiter case, there was no statutory provision under Section 5.

The Lassiter case holding at the Virginia literacy requirement could constitutionally be enforced.

Here we have an explicit legislative provision under Section 5 of Fourteenth Amendment.

There are I think as up to date, no compelling state interest justifying the imposition of literacy test.

We have much wider dissemination of information and knowledge about political matters through radio and television.

I suspect that the people who are illiterate that numerically speaking far more get their information on political matters today through their ears and through television then they do by reading.

Most states do not have literacy requirements and never had had them and some few which do have them do not enforce them as to which I understand that Oregon is an — we believe that the question of the validity of the extension of literacy requirements in Section 201 is really covered by South Carolina against Katzenbach on the one hand and Katzenbach against Morgan on the other.

So I will turn to the Idaho case, number 47.

Byron R. White:

Could I ask you again Mr. Solicitor General?

Do I understand you to say that Arizona itself has been guilty in the past of denials of equal protection to certain groups other than denying them the right to vote?

Erwin N. Griswold:

No, Mr. Justice, not with respect to Negroes.

I think that there is some suggestion in the record that there may be a difference with respect to Indians in Arizona.

Byron R. White:

But not with respect to Negroes?

Erwin N. Griswold:

Not with respect to Negroes.

Byron R. White:

Although now Negroes —

Erwin N. Griswold:

I am not talking now about some what remote past and the 1870s and 80s.

Byron R. White:

Well, what is that sustains this Act with respect to the —

Erwin N. Griswold:

That people come to Arizona in substantial numbers who are illiterate because they were subjected to discrimination in the places where they were at earlier times.

Byron R. White:

Now what is the legal justification for Congress making Arizona remedy the — make them to do something that they otherwise would not have to do because of something some other state did?

Erwin N. Griswold:

The legal justification I repeat is not punishment —

Byron R. White:


Erwin N. Griswold:

— is not retribution.

It’s simply that there is a denial of equal protection.

Here are people in the State of Arizona who are otherwise qualified to vote and whom Arizona will not allow to vote because they are illiterate.

Byron R. White:

Well, even literates have been subjected to denial the protection by state A and Congress you say, may give them the remedy in State B?

Erwin N. Griswold:

Now they are denied an equal protection today by Arizona because Arizona won’t let them vote today, that is a denial of equal protection.

Byron R. White:

I know, but the reason is some other state in the past has denied them equal protection?

Erwin N. Griswold:

The reason is they are illiterate and the reason they are denied the right of vote is that they are illiterate and the question simply is whether that is such a compelling interest of the state that Congress can not properly under Section 5 of the Fourteenth Amendment hold it invalid.

Now we concede that it is inappropriate interest of the state.

We concede that in the absence of action by Congress, a state could make literacy a test as many of states have.

Byron R. White:

If the states who deprive these illiterates of the equal protection of the law, haven’t denied them equal protection law and they have moved to Arizona, Arizona could maintain literacy test?

Erwin N. Griswold:

No, Mr. Justice under this statute, it does not make any difference, who was to blame for the fact that they are illiterate.

Under this statute the mere fact that they are illiterate, no matter who is to blame or on what reason just because they could have gone to school but were lazy and did not go to school, under this statute they can vote in Arizona.

Byron R. White:

I understand the impact of the statute, but I am just asking about the justification for them and the justification is that although Arizona could have maintained this literacy test in normal circumstances, people have moved there from other places who have been denied the equal protection of the law?

Erwin N. Griswold:

No, the justification Mr. Justice I believe is in a sense some of more simple than that.

It is that though Arizona has an interest with respect to literacy, this is a matter which Congress can pursuant to its powers under Section 5 of the Fourteenth Amendment, regardless if this is the origin determine is not sufficient to justify the discrimination against boarding and thus the denial of equal protection which is a result or consequence of it.

Warren E. Burger:

And before these people moved into the Arizona for example, I take it there was no problem because there were no class of people or group voters on whom the present statute could operate?

Erwin N. Griswold:

You mean in Arizona?

Warren E. Burger:

Yes, in Arizona.

Erwin N. Griswold:

Well the Indians have been there.

Indian have been there long time.

Warren E. Burger:

Yes but they are not —

Erwin N. Griswold:

There is a —

Warren E. Burger:

— it wasn’t the source of this legislation, was it?

Erwin N. Griswold:

Oh yes, Mr. Chief Justice.

The Indians are specifically referred to in the hearings and there is evidence that a much higher proportion of Indians voted in New Mexico where there is no literacy requirement than voted in Arizona where there was a literacy requirement and there is a considerable basis, discussions in the record that one of the reasons whether the literacy requirement in Arizona is to keep the Indians from voting.

Now the brief for Arizona does show that under Mr. Justice Douglas’ interim order, requiring that people be registered though illiterate on a separate list to await the result of this Court’s decision.

I think only 21 persons in the state actually were registered, although the record had shown that there were some 87,000 persons in Arizona who were barred from voting on the literacy requirement, and I think that’s a disappointing showing, but I don’t think it’s terribly significant.

All the experience in the deep south showed that you got the people to register only by fairly intensive voting rights and indeed it was not very effective until lots of people went down and gave people information and instructions and let them to the appropriate places and after a while when fear subsided and so on, and more people got out and did it, then the number registered greatly increased.

And I suspect that if this Court upholds the provision of this statute, and if there is some effort to register people in Arizona who heretofore have not been allowed to vote that a very substantial number, surely not 87,000, but a very substantial number will in fact register, and that the voting rules in Arizona will be substantially increased.

Now let me turn to the residency provision which is applicable with respect to the State of Idaho.

As a matter of fact, we had some difficulty in finding defendants with respect to the residency requirements and even some with respect to the literacy requirements.

Most of the States did not indicate any desire to contest these provisions.

The residency provision is really three provisions.

Erwin N. Griswold:

There are three distinct things which it does and let me point out one preliminary matter, it relates only to voting for President and Vice President.

Solicitor General, why do you think the Congress was so terrible in have restriction in section where (Inaudible)?

Erwin N. Griswold:

Because Mr. Justice, I think this is the explanation.

With respect to local — with respect of other elections, like Governor, even Congressmen and Senator, certainly Sheriff and District Attorney and all of those things, knowledge of local issues, knowledge of the community, being a part of the local community is relevant, not necessarily controlling.

I think I would be quite prepared to defend this statute if Congress had made it applicable in all elections.

But with respect to voting for President or Vice President, it doesn’t make the slightest difference, barring only such mechanics as arise out of the electoral college provisions that anachronism with which we are still bound.

It doesn’t make the slightest difference whether you vote in Arizona or in New York.

Now, it is true that as far as I know we never had an election in this country which was determined by one vote.

You can — that is a Federal election, you can of course, assume a case where one man moved from Idaho to New York and voted there, and that was enough to make a majority in New York, which got the New York electoral votes than the fewer number of Idaho votes that either were not changed or went the other way.

But simply in terms of the franchise, Congress felt, and I think quite understandably and rightly so, that a citizen of the United States, who is resident in the Untied States ought to be able to vote for President and Vice President every four years.

That is the -– I want to put it in another way that there was no substantial controlling, compelling reason on the part of the state to say that he shouldn’t be entitled to vote, because the first provision here is that if you have resided within the state for 30 days, you can vote in the state in which you reside.

The second provision is that the state —

Harry A. Blackmun:

Mr. General, may I bring you back though just for one follow through question?

Despite all of the discussions as to the elimination of the electoral college, we still have it —

Erwin N. Griswold:

We still have it —

Harry A. Blackmun:

— and hence the voter does not vote directly for the President and the Vice President.

He votes for a strange animal called an electoral.

Do you think this makes the case a more difficult one for your point of view and if we have direct election?

Erwin N. Griswold:

Oh yes, no doubt about.

It is filtered, it is diverted here by the electoral college.

The statute throughout refers to vote in any election for President and Vice President, shall be denied the right to vote for electors for President and Vice President, or for President and Vice President.

Apparently the draftsman of that provision thought there was some hope that perhaps we might eliminate the electors, but we still have them.

I think that if we didn’t have the electors, I think I could almost say that there is no ground whatever on which a state could oppose this provision.

It would be a little bit like transferring a criminal indictment from the Southern District of Texas to the Northern District of Arkansas.

It’s a matter of convenience, and if we didn’t have electors and we simply counted the votes, then the only interest would be to see that the person didn’t vote twice and where he voted wouldn’t make any difference at all.

Now in addition to the 30-day residence limitation, which I may say is widely in effect throughout the country under state statutes, the act of Congress of last June, also provides for absentee voting and absentee registration, under fairly short-term provisions, in many respects different from provisions of some of the states.

For example, some state say that the absentee ballot must be received not later than noon on the day of the election.

The Federal statute says that it shall be counted if it’s received up to the closing of the polls on the day of the election.

Then finally there is a third provision which purely in doctrinaire terms, perhaps goes the farthest of all, which says that if you have left a state in which you were qualified to vote, and have gone to anther state, and have not resided in that second state for 30 days so as to be eligible to vote there, then you can still vote in the state from which you came and of which you are no longer a citizen, and you can make a complete formal argument that this compels the state to allow a person to vote for President and Vice President who by hypothesis is not a citizen of that state.

And yet I think that too is valid although it pushes it further simply on the general proposition that Congress was concerned and was rightly concerned that every citizen of the United States, President in the United States should be entitled to vote for President or Vice President someways, and that the fact that the exigencies of his job, or simply that he retired and decided to move to a new location, or problems with respect to his family’s health or other matters had required him to move just at the crucial time.

Warren E. Burger:

Mr. Solicitor General, is the voter given any option under that last section that you mentioned, the option to vote in the state from whence he came, or the one to which he has come?

Erwin N. Griswold:

No Mr. — well, the state into which he moved, I suppose can allow him to vote, in which case I believe he cannot vote in the other state.

Warren E. Burger:

Now that gives the voter quite a choice, doesn’t it?

Obviously, depending upon the states involved, his vote would have far greater impact —

Erwin N. Griswold:

No, I don’t think it gives him any option, Mr. Chief Justice.

Warren E. Burger:

Oh, then I was —

Erwin N. Griswold:

Either he can vote in the new state or he can’t.

The new state may allow him to vote by having a one-day residence requirement, or having a special provision for people who move in from another state.

The Statute, it’s on Page 81 of our brief in the Arizona case.

“If any citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any election for President and Vice President has begun residence in such State or political subdivision after the thirtieth day next preceding such election and, for that reason, does not satisfy the registration requirements of such state or political subdivision he shall be allowed to vote for the choice of electors.”

Now, if he has started residence 20 days before the election, but the state into which he moves says you can vote if you have been here for 15 days then he isn’t protected by the statute, he would have to vote in the new state not in the old State.

Under this statute he has no election, he can vote one place and only one place, he can vote in the new state if the new State will let him, and if the new state won’t let him vote in the new place he can vote in the old State.

Warren E. Burger:

Does this statute contain a kind of penal sanction for voting in two states?

Erwin N. Griswold:

Yes, Mr. Justice I believe that that is Section 202 (i) that provisions of Section 11 (c) shall apply to false registration and other fraudulent acts and conspiracies committed under this Section.

11 (c) is in the original voting rights act of which this is amendment and that is a general criminal provision for criminal act.

There is no doubt that a person who — certainly a person who votes twice and a person who votes for, he is not entitled to vote will subject to federal, criminal sanctions.

Now our position is that though the states have an interest and we don’t question that.

The states have an interest with respect to literacy, they have an interest with respect to residency, they have what you might call an administrative interest in terms of making their voting procedures not too expensive and in such a way that they can effectively guard against fraudulent registration and voting that this is not a compelling enough interest to stand up against the exercise of power by Congress in its wisdom pursuant to the powers granted by Section 5 of the Fourteenth Amendment.

This is not a petty matter.

It is estimated that 5 million people are barred from voting in this country in presidential elections because of the residency requirements.

We have a highly mobile population.

We have a great many people whose jobs are with big companies or others and they are transferred.

We have the people coming to Washington and going from Washington, not presidential appointees so that they may have a domicile here in Washington while they are here, go back to their states and the aggregate here is a very large number, something like 3 or 4% of the total possible voting rules.

I don’t say that this will increase it by 5 million votes because not all of the 5 million people will actually register and vote, but there are 5 million persons who will be made eligible to vote under this provision, who until the very recent past have not been so eligible.

The State restrictions have been loosening up in recent years so that this has been a less serious matter than it used to be.

There is no real argument here in our view with respect to administrative convenience.

This I think is evidenced by the fact that a great many states now have 30-day provisions and other special provisions with respect to the election for President and Vice-President.

The states will have to change their statutes.

They will have to modify their practices in one way or another.

The fact that many states have done it successfully indicates that it is not a serious matter.

Erwin N. Griswold:

Now indeed four-fifths of the State which is 40 states, permit registration or qualification of at least some voters up to 30 days before the election.

A number of states have maintained separate rosters for presidential elections.

The situation is similar with respect to those who have left the State with respect to absentee voting and registration.

It seems to us that decisions of this Court in Carrington and Rash, and Katzenbach against Morgan are applicable.

Now, I have discussed Section 202 mostly with respect to the Equal Protection Clause of the Fourteenth Amendment but there are also other basis which can be relied on here.

This supply is only to the first, the foremost, the federal elections that for President and Vice-President.

It is a federal event with respect to which the Federal Congress might have some appropriate voice.

It’s a privilege of national citizenship or at least it can be contended to be a privilege of national citizenship to vote for President or Vice-President derived from the Constitution.

It is one of the privileges and immunities of a citizen of the United States analogues to the right to travel freely among the several states.

Indeed this has been a curve, a break, a restrain on freedom of movement among the several states and I think all of us have known people who did delay they move until after an election or who were very concerned because they couldn’t vote because they had to move before an election.

Such case as Edwards against California can also be relied on.

For these reasons we think that the prayers of the complaints in these two cases should be granted.

That a declaration should issue that the statute enacted by Congress is constitutional and that the State should be enjoined from enforcing their statutes which are in conflict with the federal statute.

Warren E. Burger:

Thank you, Mr. Solicitor General.

Mr. McGowan you may proceed whenever you are ready.

John M. McGowan, II:

Mr. Chief Justice and may it please the Court.

First I would like to correct or restate some of the facts stated by the Solicitor General.

In the government’s brief the figure used is 73,400 rather than 87,000 is the number in Arizona not registered.

And since the order of Justice Douglas on August 21, only 18 people have registered to vote in all of the fourteen counties of Arizona rather than 21 in the State.

In the Appendix of Arizona’s brief we have attached copies of all of the county records of Arizona setting forth the number that did register and the total population of the said county as revealed by the latest census figures.

William O. Douglas:

As I recall that was a program of the schedule worked out with the approval of the Attorney General of Arizona?

John M. McGowan, II:

Yes sir, and it was given due notoriety in all the papers, the television, radio, so it was broad casted, but they had the opportunity for three weeks Mr. Justice to register.

It is Arizona’s position that there it was not adequate basis given for the act — for the Voting Rights Act of 1970.

Arizona was not give opportunity to be heard and in this Court’s decision, in the Morgan case the court satisfied itself that pertinent factors were used in that congressional decision.

Here there is nothing before this Court to which it can perceive a basis upon which Congress acted as it did in placing the 1970 Act.

Thurgood Marshall:

Mr. McGowan you said that Arizona wasn’t heard, were they prohibited from coming?

John M. McGowan, II:

They were not invited Mr. Justice.

Thurgood Marshall:

You have two senators.

So I mean you could have gone, and that bring the point you were denied a hearing?

John M. McGowan, II:

No, no sir.

Thurgood Marshall:

The only point you weren’t invited.

John M. McGowan, II:

That’s correct.

I know here we are in Arizona.

Thurgood Marshall:

The Bill is pending?

John M. McGowan, II:

Yes sir.

From what is put forward, it appears that Congress merely took cognizance, that literacy test have been used in the past as a tool of deliberating invidious discrimination.

That has never been the case in Arizona.

Arizona has people from all parts of the country who reside there, that have moved there and as this Court held in the Gaston opinion that, in footnote 8, where it very carefully said, “we have no occasion to decide whether this Act would permit reinstatement of literacy test in that face of a rational disparate educational literacy achievement, for which the government bore no responsibility.”

The government’s brief quotes, Honorable Raymond Nakai, Chairman of Navajo Nation to the effect that the only reason advanced by the number of illiterate, the high number of illiterates not registered in Arizona and New Mexico was the fact of Arizona’s literacy test, but no other fact to substantiate that statement.

Arizona has a great bulk of the Navajo people.

They live in a rather isolated area.

New Mexico’s Indian population is largely situated in Pueblos, that’s — that fact does not bear up under the —

William O. Douglas:

Are they literate in the Indian language?

John M. McGowan, II:

No sir, by and large no sir, not.

William O. Douglas:

Is that a personal opinion or is there historical records or official documents in your records?

John M. McGowan, II:

It’s a personal opinion, Your Honor.

Potter Stewart:

Is it a spoken language only or is it a written language?

John M. McGowan, II:

It’s a spoken language.

It was a written language as of about 50 years ago.

The gentleman who comprised the written language passed away about 2 years ago.

William O. Douglas:

Do they have newspapers?

John M. McGowan, II:

In the English language.

Warren E. Burger:

What about their schools?

John M. McGowan, II:

Schools, they talk in the English language.

Warren E. Burger:

In the English language?

For how long has that been true as far back as the schools go?

John M. McGowan, II:

Yes sir, since the Treaty of 1967 or 1968 when the Federal government promised a school teacher for every so many Indian children.

Warren E. Burger:

There is a gap there that at least for me needs some explanation.

I am not sure how relevant it is.

If they have had schools for a 100 years, how do, what’s the explanation for the illiteracy in English?

Warren E. Burger:

Don’t they attend the schools?

John M. McGowan, II:

Mr. Chief Justice, by the very nature of the geography of the area, the children are taken into towns like Winslow, Phoenix and other places and educate them.

Some of them have never liked that approach and therefore, they have not gone.

Warren E. Burger:

You mean there is widespread truancy in effect?

John M. McGowan, II:

Yes sir.

Warren E. Burger:

I am not sure how relevant this is but it’s rather surprising gap here?

John M. McGowan, II:

In the Gaston case where the footnote is quoted and in this Court in last June in the Edwards case in striking down the (Inaudible) theory saying that the State within a State concept must go.

William O. Douglas:

What does that effect?

John M. McGowan, II:

We have a case in Arizona that’s Warren Trading Post versus Arizona Trading Commission, 1965 in which this Court said, “in compliance to these treaty obligations, the Federal government has provided for the roads, education and other services needed by the Indians.”

The Court concluded and I quote, “Since federal legislation has left the State with no duties, all responsibilities, respecting the reservation Indians, we cannot believe that Congress intended to leave to the State to privilege of leveling State Privilege tax.

By the very language of the Warren trading post, Arizona was bought within the exception provided in footnote 8 of a Gaston decision.

As was determined in Warren Trading Post case, Arizona clearly has no responsibility for the literacy or lack of it of a large part of its citizens by virtue of federal responsibility.

Arizona has always spent a great amount of its fund on education, approximately 70% and Arizona’s Constitution was enacted in the hay day of direct democracy.

In fact, the former Chief Justice of this Court, the former President, delayed Arizona’s admission by virtue of the recall of judges.

We have a very easily amended Constitution.

5% of the voters of Arizona may refer to the voters of Arizona, any Bill passed for the legislature.

For that reason, no Bill becomes a law for 90 days following the general of legislature to give any 5% of the people the right to petition for referral to themselves.

By virtue of that fact, it’s awkward situation to let someone who cannot read what he has to decide upon; that he has a right to pass upon the Constitution or the ordinary statute to the state because it’s easy to refer a measure.

No Bill becomes a law until 90 days have passed, unless two-thirds of the legislature has declared it to be an emergency.

It’s for this reason that Arizona has always spent a great portion of it’s taxable wealth on education.

Our Constitution is amended every 2 years, we have 3 or 4 this year, which is the smaller number than usual, yet to say that they may listen to radios and televisions is alright, is about candidates.

But when it comes to the voting on detailed legislation and the constitutional amendments, it makes it a rather difficult proposition to defend.

Now we have in Arizona a case that says that the right to drive an automobile is a right, not a privilege.

No one has ever said that a person who has impaired eyesight shouldn’t have the right to have that driver’s license.

The same way, if illiterates are given the right to the ballot, they not only or will not be able to sufficiently use that, but it will impede the right of someone else who has taken the time to learn to read and write.

No have Arizona ever used this as a test or device, to prevent someone from voting, that would be one thing, but we have never done that.

It was only used to ensure that the ballot would be understood and that a great number of people that we elect and the ease by which we amend our constitution referral measures, would not be given the whole protection of that process, if literates are given the ballot.

Harry A. Blackmun:

Mr. McGowan, what in your judgment is the significance of so few registering pursuant to Mr. Justice Douglas’ interim relief order?

John M. McGowan, II:

The only conclusion Your Honor, I could reach was that there was not a demand for it.

Warren E. Burger:

There was not what?

John M. McGowan, II:

Not the demand for it.

Harry A. Blackmun:

Do you think this will be carried out in the future if the application of the statute to Arizona is upheld?

John M. McGowan, II:

I don’t think the percentage would increase much Mr. Justice.

Harry A. Blackmun:

Then why are you concerned about the statute?

John M. McGowan, II:

As a matter of, if one person is allowed to vote as an illiterate, that puts our whole process in jeopardy.

Why do you say that?

John M. McGowan, II:

Because Your Honor, our whole system in Arizona is built upon the people reserving to themselves the legislative process and if a person has the right, equivalent to someone who has learned to read and write, go in there and negative his vote by just blind voting and then it makes a mockery of our system.

William O. Douglas:

What is the Spanish speaking community in Arizona?

Is it literate in English largely?

John M. McGowan, II:

Largely, Your Honor, yes sir, roughly 21% of Arizona has mainly Spanish derivatives.

William O. Douglas:

If they’re literate only in Spanish, you don’t let them vote?

John M. McGowan, II:

The Constitution says they must read the Constitution of United States to be able to and to write —

William O. Douglas:

Read the Constitution of United States in Spanish or English?

John M. McGowan, II:

In English.

William O. Douglas:


Warren E. Burger:

This is an extraordinary thing, this negative response.

I suppose it could be related to the communication of the information about the order, the interim order.

Does this mean that this is open to an inference that Navajos generally don’t have television or don’t have radios or what — would you care to speculate on that, though?

John M. McGowan, II:

Well, Your Honor, I think it has to do with the geographical distribution of that.

Some people must come 15-16 miles to vote.

William O. Douglas:

What was the time limit, I signed that order late in August.

John M. McGowan, II:

21, August Your Honor and it was to expire on September 14, so there were three full weeks in which our primary was on the 8th —

William O. Douglas:

That may explain a part of it, short, shortness of time.

John M. McGowan, II:

But there was much interest by virtue of the fact that the primary was two weeks after you signed it and so a consciousness of election was upon everyone.

Do the Indians of Arizona still retain suitable Indian Autonomy in connection with passenger laws or (Inaudible) laws?

John M. McGowan, II:

Yes, sure Your Honor they have.

25% of Arizona is under their sole jurisdiction.

That’s for the election of people officers and —

John M. McGowan, II:

So that they have their own tribal government.

Might that have anything to do with condition of which have been asked about?

John M. McGowan, II:

Quite possible Sir.

Warren E. Burger:

In other words, it’s a rejection perhaps, speculatively, of participation in the affairs outside their own, Navajo nation tribal affairs?

John M. McGowan, II:

Lack of interest, Mr. Chief Justice.

Thank you.

Warren E. Burger:

Thank you.

Mr. Nelson!

Gary K. Nelson:

Mr. Chief Justice and may it please the Court.

If I might just briefly comment on some of the questions that were just asked concerning the literacy in the Indian nation and the reasons for not registering in the interim period.

I think there is a combination of factors that are exceedingly frightening to me as a Chief Legal Officer of the State, which has a large Indian population.

I think one of the problems is that the Indians, since 1800 have by and large rejected Federal government’s effort to bring them into the mainstream of this country’s processes, whether it’s by language, by government or any other criteria, education that you want to weigh.

And I think this is a reason in addition to the actual factual matter that the communications on the reservation are totally inadequate to take any information to the Indian nation and I don’t know what the solution is to it, but they have exactly three jurisdictions that they’re concerned with, not any one of which has full responsibility over them; the Federal government, the state in which they’re in and their own nation and it is a pressing problem.

Yet I don’t think that it is right for them to be able, in a sense, without having any basis in fact or knowledge to legislate in the state of Arizona and I think they could particularly in two counties, if they chose to do so.

So it’s a problem which we are really concerned and we don’t purport to offer here and would this be the proper form, all of the answers to this question.

Thurgood Marshall:

Are those two counties have a majority of the Indian population?

Gary K. Nelson:

I believe that is correct.

Thurgood Marshall:

Well, what’s wrong with that government itself even if they are illiterate?

Gary K. Nelson:

Nothing, but they don’t choose to do so Mr. Justice Marshall, they have never chosen to do so.

Thurgood Marshall:

You given them the opportunity?

Gary K. Nelson:

But there is no evidence, there was no evidence before Congress and there is no evidence here as a basis of these admittedly short-term opportunities and affidavits that they cared to do so, that they cared to come in and register and run the two counties even though they wouldn’t admittedly be subject to paying any of the county’s taxes.

Thurgood Marshall:

Are they free to vote in those counties?

Gary K. Nelson:

As far as I know, they are Your Honor.

Thurgood Marshall:

Or do you think that these natives don’t want to vote?

Gary K. Nelson:

I think it’s not quite that simply explained that they haven’t — but they haven’t shown the motivation and certainly that’s true.

Thurgood Marshall:

Then why do you oppose this move to give them other than the literate — right to Vote?

Gary K. Nelson:

Well, we oppose it on the constitutional grounds that we don’t think it can be done this way, plus, we oppose it on the main ground as Mr. McGowan had mentioned concerning the factor that so much of Arizona’s legislation, both constitutional and statutory legislation is submitted to the people and if they can’t read and understand the language, how can they possibly intelligently vote and then the odds are increased that they will vote in a block like someone suggests they should vote as opposed to making an independent decision and I just think that’s a terrible risk for Arizona had to take.

Thurgood Marshall:

Do you think that Arizona has (Inaudible) blind people voting?

Gary K. Nelson:


Thurgood Marshall:

Well, couldn’t somebody read this to the Indian who can see, but can’t read?

Gary K. Nelson:


Thurgood Marshall:

Where is the problem?

Gary K. Nelson:

I just don’t think it would be done, it isn’t done.

Do they have members of the legislation to state Senate?

Gary K. Nelson:

They finally elected one member of the house of representatives, which is the lower body and he served one term, his name was in Lloyd house, he was a Navajo and he tried to run for Congress and was beaten in a three-way primary.

To the best of my knowledge and I would ask Mr. McGowan to check his recollection that, that’s the only Navajo that’s been elected.

There have been, I believe, some other Indians Apaches perhaps Yavapais, who were either totally Indian or part Indians who have been elected but I just can’t recall, Lloyd House, I know.

Do they have a district where the Indians can elect the members?

Gary K. Nelson:

Oh, yes, oh yes, I think there are at least two districts in Arizona where if all the Indians voted, even the ones that perhaps are registered, they could elect a representative if they chose to do so.

Now if I may briefly touch upon what I think is the most critical issue before this Court, I sort of feel a little bit like quoting Lincoln’s words, I think it’s appropriate although it’s a different form.

He found himself at Gettysburg, I think we are really met here today in this particular question of the 18-year-old vote to find out if the country so conceived as ours has, can long endure.

I think that is really the ultimate test that we’re faced with when we brush all the cases aside, all the decisions and look simply at the Fourteenth Amendment.

Even though we may call it abortive or an anachronism, or whatever we call it, I don’t see how we can conceivably sweep it away.

I think I was very encouraged to hear the Solicitor General mention the fact that we still consider the Electoral College, which I think is a classic example of what most of the people and most of the states for different reasons and with different degrees of how they would like to change it totally in apposite to our system today and it’s still there.

I am finding myself in a position where personally I have for years circulated petitions to get the 18-year-old vote question on the Arizona ballot.

There is no question in my mind that will happen.

That’s not the issue, but it’s a very dangerous situation that we find ourselves in, because I think historically this is where governments tend to make the first shortcut that leads to its eventual downfall and that’s in an area where everybody sees a need.

It’s a good thing.

It’s not an evil thing that we’re doing, so why not do it the easy way, why wait as we did for the female suffrage amendment, why wait for that long drawn out difficult political process of constitutional amendment, everybody really wants it or whether majority of Congress wouldn’t have voted in the first place and the Fourteenth Amendment that we see from the briefs in this case and from the concurring opinion of Judge McKinnon.

The legislative history is not really conclusive and it’s never been enforced in its original provision so, why not forget it and I think that would be a tragedy.

I think you can explain all of the parts of the Section — of the Fourteenth Amendment and I think we must, I think we must construe them all and the fact that it hasn’t been enforced.

I can’t see any logical or legal argument that, that makes any difference whatsoever.

Now I can see a very sound argument to be made that Section 5 may give a concurrent remedy other than the remedy of simply reducing a state’s representation in converse.

I can see that as an argument, as a logical argument that this Court might adopt in 1970 as opposed to perhaps what was in vogue in the 1800’s of potentially reducing the representation in the Federal legislation.

But to say —

Potter Stewart:

Well, you don’t mean it gives — you mean it gives Congress the power to —

Gary K. Nelson:

To Congress the power, I am sorry —

Potter Stewart:

— to enact a concurrent remedy or an alternative —

Gary K. Nelson:

An alternative remedy —

Potter Stewart:

A traditional remedy.

Gary K. Nelson:

Yes, sir, yes Your Honor.

But to say that the words are not there, that the numbers are not there or to say that well all it did was really put into the Constitution, what was the acceptance standard in 1865 or 66, the generally acceptable minimums is to avoid the question, so what if it indeed, that is what it did and if indeed they shouldn’t be there today that maybe true, but we can change it by Congress.

Gary K. Nelson:

Yes, excuse me.

What you are arguing, the second section of the Fourteenth Amendment does, what do you think it does?

Gary K. Nelson:

I think it sets a minimum age for voting at 21 years under which the Federal government has no authority to enforce any sanctions against the State whatsoever for allowing people, or for disallowing people under the age of 21 to vote.

I think it says that very clearly.

Now, granted perhaps if we had been drafting the Fourteenth Amendment, we could have set it better or more straight forwardly, but I do not think we construe a way the fact that it says to the State’s states, “If you do not allow your people who are 21 years old or older to vote, the Federal government can come in under this Amendment and sanction you.”

Now I think it has to say if you do allow all people under 21 years of age or older to vote, then the Federal government has no authority to come in and sanction you on that purpose and I just — it’s inconceivable to me quite frankly that we could come to any other conclusion in spite of the sound constitutional lawyers and judges, whose opinion are to the contrary and it seems that we wouldn’t even be bending the Constitution, we’d simply be breaking it and while it would be for a good purpose and a result that I personally want to see accomplished, I think it would just be the first step and that every other step then, would be a little easier even if it were more controversial.

And I think this is just the history of how governments finally conceive, have gone wrong because they took a step a little outside the law because well, everybody wanted to do it and the way to do it within the law was a little cumbersome, we had some problems, we had some unrest perhaps that’s attributable risk although I think that is an erroneous conclusion.

And I just would urge to this Court to think very, very carefully about ignoring as Congress had, that is one check that’s gone, as unfortunately the President has, even though he stated that he thought it was unconstitutional.

That is two stripes and there is only one check left and unquestionably the Congress had the power to do what they did, this Court has the power to sanction it.

I do not think either body has the authority.

Warren E. Burger:

Thank you Mr. Attorney General.

Mr. Robson — Mr. Attorney General.

Robert M. Robson:

Mr. Chief Justice, gentlemen of the Court.

I hate to keep flogging this, (Inaudible) to death, but it looks like that is the name of the game all afternoon.

I think that we have heard enough arguments that I can assume that this Court will recognize that Congress at least directly by the Constitution of United States has no right to enfranchise any citizen to vote per se.

That Congress can legislatively, to prevent discrimination under the Equal Protection Clause is not denied.

The combination of the Article XIV, Section 1 and Section 5 certainly has be and allowed to be exercised by this Court in a good many areas, but I think when you look at the Section 14 as a whole, you’ll find that really the intent of the enactors of that piece of legislation were attempting to stop discrimination against citizens of the United States in an area where discrimination had been practiced for a 100 years because of race, color, and national origin.

They were so unsure about Section 14 and what it did that they enacted Section 15 to make sure that they weren’t understood, that they weren’t misunderstood.

I think Katzenbach and I want to point this out because I do not think it has been pointed out in any argument today, note 14 shows that expressly in the constitutional convention of State of New York there was a great deal of discussion about national origin.

I cannot help but believe that this Court has taken a real good look at that when they decided Katzenbach.

Contrary to the argument of the Solicitor General, I do think that there was in this Court’s mind invidious discrimination on the basis of race, color, creed or national origin.

Thurgood Marshall:

But I do not think the Puerto Ricans were around this country, when this amendment was being passed, is that correct?

Robert M. Robson:

I am talking about Katzenbach versus Morgan, the case.

Thurgood Marshall:

You are saying that in Fourteenth Amendment, it was restricted to newly freed slaves?

Robert M. Robson:

I was talking about Katzenbach — now, you got me confused, I might not on your wavelength.

Thurgood Marshall:

You said that the Fourteenth Amendment was restricted to the newly freed slaves and I submit Puerto Ricans weren’t even here at that time.

Katzenbach involved Puerto Ricans.

Robert M. Robson:

I understand that, but the New York constitution provision that was struck down in Katzenbach as I understand and in one of the footnotes, in that case, it was clearly pointed out.

I think it is on page 645 or 654, 654 to be exact, 384 U.S. 654.

I think that that footnote indicates that this was being lifted because there is the quote in there directly out to constitutional convention of the State in New York that showed that they were considering national origin as the source for their limitation.

Robert M. Robson:

I just want to point that out that this was — it was before this Court, it does have some overtones.

Another thing that I would like to point out to the Court, and there has been some discussion, at least today but not specifically — a specific — there was this specific finding by Congress in the determination of how they were going to word this Section in regard to the 18-year old vote in which they found in exactly the language of this Court in Katzenbach, that it was an invidious discrimination for the States not to allow 18 years of age to vote because of their military service as required by them and I would like to point out that this is I think a syllogism because certainly more than half of the 18 years olds in this country are women that are not subject to any Federal service.

The service is required by a Federal Act not by a State Act, so there can’t be any State discrimination here and the fact that of the 50% of the males were all subject to military service, only about 10% of them ever, ever served unless we were in a World War II situation.

I don’t believe that just because you are old enough to fight, means that you are old enough necessarily to vote.

All that means is you are old enough to take orders and you have been old enough to do that since you could understand.

The other side of the coin is that if you are too old to fight, as I am now considered to be by my country then you are too old to vote and I do not think I am too old to vote.

I would like to point out another argument that I would like to make.

The rationale of the arguments that have proposed here by the Solicitor General are that by a combination of Sections 1 and 5 of the Fourteenth Amendment, Congress can do something indirectly which it can’t find in the enumeration of powers that it may do directly.

In other words, by removing at a step, by coming on with an argument that because we want to enforce Equal Protection in the laws and we don’t want any discrimination, we can come in the back door and do what we could not do directly.

I think it’s a parody on the law and I don’t think it’s an argument that holds too much water, particularly in a situation where there is no particular discrimination by a state that is really pervasive across the board, where you can show that any particular age group or section of the population is really being discriminated anymore than another.

Here is a group between 18 and 21 that are not allowed to vote.

Well, after all at Common Law and this is our heritage, nobody was allowed to vote and nobody — and everybody was an infant till they were 21 years of age.

We have modified this up and down, hither and yon and we have allowed the state legislatures to do this.

But certainly up to this point Congress has never attempted to do so.

If they can do it in this area, in the area of the political arena, then there is no reason why the same kind of argument cannot be carried over into marriage.

We have one of the — we have a terrible social problem with the break up of marriage in this country.

There is no reason why they couldn’t move into driving at a terrible highway facility record in this country.

There is no reason why they couldn’t move into that area.

And there is no reason — we have got a terrible alcoholic problems in this country.

There is no reason why they couldn’t move into the alcoholic and the drinking area.

And there is no end to it and once you open this door, if you, by the premise that’s presented here by the Solicitor General and the government then the door is open.

It also it seems to me in regard to this and this is the last comment I would like to make in regard to the Katzenbach case, it seems to me that when Congress made the finding they did that there was an invidious discrimination because the states did not allow 18-year old persons to vote, that the legislature was in effect invading the judicial power of the United States which is invested in this Court.

Now somebody said, that — and I think it was the Solicitor General that it was easier for Congress to make up it’s mind about what was an invidious discrimination in this area than it was to the nine men on this Court.

I don’t believe that for one minute because they are not any farther away from the people in Idaho or Arizona or California or Maine or New Jersey than you are and they are not any closer.

As a matter of fact, it’s a judicial determination to shape the size of what is discriminatory to lay down the guideline, not a legislative one.

It has to be determined on facts and it has to be determined in a specific law in a specific instance.

As applied to some kind of standard and what we are here to find out is, are you going to let the legislature, the Congress of the United States set the standard or is this Court going to set standard?

Now I get down to the arguments of the Solicitor General in regard to the terrible discrimination which my state perpetrates on residents of the State of Idaho.

Solicitor says that, under the Act, as enacted by Congress that we must allow all citizens to vote whether he is domiciled in the state or not on the same basis as those who are domiciled within the state.

Obviously, this is an impossibility.

Robert M. Robson:

You have to have different procedures for those residents of the state of Idaho who are not domiciled in the state and who register and vote by absentee ballot then you do those who are going to be able to register with a registrar of elections and go to the polls and vote.

Because in the first place, gentleman, you have to use a little Federal help here, you have to use the United States post office.

And in Idaho, we get one mail delivery a day and I don’t know how you do in the rest of the country, but out there we get one.

Now he was yelling about having to get the absentee ballot in on noon of the election day. I want to tell you what the problem is.

I was prosecuting attorney in Idaho County, Idaho which has 8700 square miles, that’s about one-and-a-half times the size of the State of Massachusetts and in that county, there are 12000 people and there are 27 voting precincts and when the mayor comes in at 10 O’clock in the morning and he goes to the county clerk, the Deputy Sheriffs have to get on their horse or their car or whatever it maybe and get to those precincts and get those absentee ballots there, so that by 8 o’clock at night when the polls close, they will be there, so the election judges can count them and if you think, you can do that before 4 o’clock in the morning on election day, you are out of your mind in that county.

It can’t be done, it’s totally impossible and gentleman there is a compelling reason for having those votes in at noon, don’t let anybody kid you.

There are 13 towns in my state that have more than 5000 people in them.

We have got 700,000 people scattered over an area, they would make most of you ashamed, two-and-a-half people per square mile and if you don’t think that doesn’t create some problems administratively, which he shrugs off, that’s great.

But I think, it creates some real problems.

Some real expenses and some pragmatic issues that the State of Idaho is interested in and quite frankly with all due respect, I don’t think the Congress, the Unites States has got any business monkeying with it because they don’t know what they are talking about.

Warren E. Burger:

Does the record in this case, Mr. Attorney General show what position Idaho’s representatives in two houses took on this problem?

Robert M. Robson:

Well, I know —

Warren E. Burger:

Bring all these practical things to the attention of the Congress?

Robert M. Robson:

I am not so sure they did and I don’t have any control of it, Your Honor.

I have very little influence with any of those.

Thurgood Marshall:

Do I assume they voted for it?

Robert M. Robson:


Thurgood Marshall:

Do I assume that they voted for this Bill?

Robert M. Robson:

I haven’t the slightest idea.

I think one Senator did and I think the other three did not, but I am not — don’t quote me.

He says that — he says really as he thinks to have the Congress come along and say, “Well you are citizen of the United States, you just vote for whoever you happen to light on election day.”

We have a reasonable provision in the Idaho law.

We have a 60-day resident requirement for the President and Vice-President, I don’t see anything unreasonable about it.

We were talking about fixing a line here earlier this morning, between 18 and 21, three years, 30 days.

Though it seems to me that the whole premise, that a presidential election is a Federal event is a false premise, if you have ever watched TV on election night, what you see is how the states are voting and you see these totals come up on the board and everybody is waiting for precincts, so and so downstate, in the lower Illinois to get in, There are seven precincts from upper Michigan to get in, so we will know what the final vote is and it’s important to the people of the state to know within a reasonable time what their vote is and who their presidential electors are and really it doesn’t become a Federal job until they meet as they electoral college and then it becomes a Federal event because up to that time who is supervising the election, not Federal officers, who is paying for it, there isn’t any Federal money in there.

And when they passed this Bill, this Bill to amend the Voting Rights Act, I didn’t see him appropriating any money either to cover any increased costs or expenses it might cause the states.

And to me that’s important because my state has a very low income.

Now let’s talk about fraud for a minute.

We have — we are close to a lot of states and we are locked in the mountains.

Now he says that if these people can come into Idaho and vote in an election, absentee, if they left Idaho 30 days ago and they couldn’t get in the next stage or 15 days ago and they couldn’t get to vote on next stage, so we got to take them and they are right back on and they say, we want to vote by absentee ballot.

Robert M. Robson:

How are we going to check to find out whether they really did not vote in say Oklahoma or North Dakota?

Most of our coops go to California, so California.

How — how are we going to check and how our people are going to find out whether there is a vote tried?

Where is the federal register that we are going to find out whether these people really did it or not?

Don’t you think there is some kind of compelling interest here on the part of the state that has the counter ballot to find out whether that man has voted twice or three times or four times?

He shrugs in our office and as you think, I have been a prosecuting attorney both at the federal and county level, I know it’s not easy, it’s tough.

It’s hard to get the evidence.

This opens it wide open and it’s awfully hard for me to accept a legal theory which says that once a man has decided he isn’t going to live in my state anymore and he sells his property, he takes his kids out of school and he takes his wife, and he leaves, to go live some place else.

How can it be?

Once he has severed his residency which is a matter of objective with intent and that’s a fundamental principle of law, once he has objectively said, “I no longer am a resident of the State of Idaho” how in the world can we discriminate against the man that isn’t even in our jurisdiction, I want to know.

I can’t see how in the world we can be held responsible for that?

I could see it, if Congress passed a law saying, in the federal building, Ed Boyce, Idaho, if you ever happened to passing through Idaho, you can go over there and vote and register and we will count them and we will see that it gets in the proper place and that it gets on election ballot.

But I cannot see for the like of me how that kind of argument can be used successfully.

There is one final argument I would like to make in this, it seems to me this argument hasn’t been made at all today, and no consideration has been given to it.

There seems to be a philosophy or a tendency on the part of not only court’s, but Congress and legislators and lawmakers of all kinds to protect the individual which is a (Inaudible) he is totally dependent upon us to protecting him from everything.

Now, it doesn’t seem to me so greater burden that a man ought to be able to get if he is going to leave a state, get down to the county courthouse and get his absentee ballot and vote it before he goes to Timbuktu or he goes to Playground, USA or he flies to Europe or if he comes back here to Washington.

It doesn’t take very long.

I have a son, who is going to school in State of Oregon.

He came home to visit this summer and in half an hour, I had him registered and voted before he went back to school and his wife too.

Half an hour, it didn’t take any great effort to protect that boy’s right to vote and his wife’s right to vote.

With a little planning, it seems to me that the individual could pretty well protect himself and if he wants to take the responsibility for lollygag in all over the United States of America or all over the world for that matter and he doesn’t want to make any effort to get where he is supposed to be when it comes voting time, I can’t feel very sorry for him.

It seems to me that there should be at least an area in here where a state has not invidiously discriminated against an absentee voter because this 30 lousy days.

We amended our constitution some time ago to fall in line with the trend it was going on and at that time 60 days seemed to be a reasonable period of time.

Most of the states since that he was speaking about this morning, have amended their laws of Constitution since we did.

And we keep planning ourselves in the position or trying to call off at the times and then finding all of a sudden, we didn’t go far enough because somebody set the standard in other notch.

We find this particularly true all along in the line of administrative law.

This morning we argued Cipriano and Kramer and I have a great deal of respect for this Court in those decisions, where they have left an impact on my state and the city of Phoenix that is hard to imagine because for two years, we have had no capital investment in our state because we can’t sell our bonds and there is not a thing I can do about it, until our own Supreme Court falls in line with this Court and if it doesn’t do it pretty quick, we are two years away again because our legislature won’t be able to take care of the problem.

So when these ripples come out from here, they go in all directions and they are very important and it seems to me gentleman that Congress should not be allowed to substitute its judgment unless there is a serious, capricious and arbitrary judgment being made by the state legislature and I don’t think this Court had allowed Congress under the provisions of Section 1 and 5 of the Fourteenth Amendment to rewrite the constitutions and statutes of 50 states.

Thank you.

Warren E. Burger:

Thank you Mr. Attorney General.

Warren E. Burger:

Mr. Solicitor General, you have I think 13 minutes left.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

At first, I would like to thank Mr. McGowan for correcting the figures I gave as to the number of persons barred from voting in Arizona and the tiny number who did register under Mr. Justice Douglas’ order.

I was speaking from memory and I am sorry that I have them somewhat inaccurate.

Warren E. Burger:

What do you have if you care to comment on the diversity of problems which the states must meet, which the Attorney General of Idaho has just commented on.

Mail in New York maybe highly efficient, the problems of registration are different from the problems of mountainous oral stage.

Erwin N. Griswold:

I couldn’t follow the discussion, I am sorry, Mr. Chief Justice because the statute provides that the ballot must be received by the closing of the polls.

There is no obligation on the state to get the ballot there, the obligation is on the voter and on the United States post office and the voter ought to be aware that he better allow plenty of time if the post office is going to have it received by the time the polls are closed.

If the ballot is received by the time the polls are closed, I don’t see any burden on the state above and beyond that which is presented by the voter who comes in five minutes before the polls are closed and cast his votes.

So I couldn’t follow that particular argument.

Warren E. Burger:

I was thinking of this particularly Mr. Solicitor General in the realm of the new voter, problems that it tend to exchange of mail for example to check, if Idaho wants to check on a new resident’s vote.

I suppose it’s rather a complicated business to find out from the old voting situs, whether the man has in fact cast an absentee ballot?

Erwin N. Griswold:

Mr. Chief Justice there is some problem about following up here.

What will happen in some cases I suppose will be that there will be charge of sometime made that this man voted twice, it can then be investigated without great difficulty.

It maybe somewhat hard in advance to prevent dual voting.

Although I think this is really a threat, but not a very serious matter.

Time may come when we will have electronic checkups by social security numbers and things of that kind which will be varied.

But even in the meantime there are telephones and I have no doubt there are telephones in Idaho which extend to a great many places where it won’t be very difficult to get the information.

In this connection I think it is relevant that Arizona is a large partially populated state with very similar problems, mountains and desert and the chief proponent of much of this legislation was Senator Goldwater from Arizona.

Also, I think it is relevant with respect to the argument of Arizona about the literacy requirement.

Although, Senator Goldwater was primarily interested in the residency aspects, he took an active part in all of the discussion and he had at no point opposed the legislation with respect to literacy on the ground that it would present special problems in Arizona.

Moreover, it was suggested on behalf of Arizona that the problem with respect to literacy in Arizona was due to the default of the United States in not providing adequate education to the Indians and if that is true, and I have no doubt that there is a substantial measure of responsibility there.

I assure that the United States ought to be able to take steps to remedy its own default.

With respect to the problem of persons who moved into the State of Arizona who had been discriminated against with in their education in other states, this was specifically pointed out by the Attorney General in his testimony both in the House and in the Senate.

The Gaston County case was expressly relied upon by him and by others and it was never effectively countered.

The — in the Senate, there was never any committee report.

There was a problem getting it out of the judiciary committee and it was taken out by another legislative device but ten members constituting a majority of the senate judiciary committee and this is printed on page 40 of our brief, issued a joint statement which it seems to me under all the circumstances can be treated as the equivalent of a committee report in which they said that this extension of the suspension of test to areas not covered by the 1965 Act and incidentally, I think it is not irrelevant that this statute does not invalidate, does not nullify state literacy test, it suspends them for five years.

They said that this extension of the suspension is justified for two reasons.

One, because of the discriminatory impact which the requirement of literacy as a precondition to voting may have on minority groups and the poor and there is nothing there about who is responsible for it, where it happened.

We are going to make them be good because they were bad in the past, is simply a current fact.

Erwin N. Griswold:

A large proportion of the persons who are now illiterate for one reason or another are of minority groups and of the poor and thus the literacy requirement has a specific impact on them, and two, the joint statement continued because there is insufficient relationship between literacy and responsible interest of voting to justify such a broad restriction of the franchise.

Now that committee and the Congress proceeded to view the problem as a national problem and to legislate on a national basis.

Now what the specific fact is in a particular state, whether in one state, it is a more serious problem than in another, is not important.

The objective which Congress had in mind and could appropriately have in mind, we believe under Section 5 of the Fourteenth Amendment is to eliminate denials of the Equal Protection Law anywhere in the United States, large or small.

In last analysis, it seems to us that these three problems, voting age, literacy and residence are in fact very similar and I would not necessarily say that they must to stand or fall together.

There are different arguments which can be made with respect to one of them.

The voting age, I believe, stands only on Section 5 of the Fourteenth Amendment whereas Section 2 of the Fifteenth Amendment and other provisions can be brought in, in addition with respect to the others.

These are in our view matters which lie within the judgment of Congress pursuant to its power to enforce these several provisions of the Constitution.

Suggestions have been made that Congress might go to extremes.

If Congress goes to extremes, that will be another case and it can be dealt with and this Court is still sitting.

But in this case in our view, Congress has not gone to an extreme.

What Congress has done is an appropriate action within the concept of the Necessary and Proper Clause as established by Chief Justice Marshall a 150 years ago and should be sustained by this Court.

Warren E. Burger:

Thank you Mr. Solicitor General.

Thank you gentlemen.

The cases are submitted.