South Carolina v. Katzenbach – Oral Argument – January 17, 1966

Media for South Carolina v. Katzenbach

Audio Transcription for Oral Argument – January 18, 1966 in South Carolina v. Katzenbach

del

Earl Warren:

Number 22 Original, State of South Carolina, Plaintiff, versus Nicholas deB. Katzenbach, Attorney General of the United States.

Mr. Robinson.

David W. Robinson:

Mr. Chief Justice, may it please the Court.

This action was brought in the original jurisdiction of this Court to test the constitutionality of certain sections of the Voting Rights Act of 1964.

The complaint alleges — 1965, excuse me.

The complaint alleges the passage of the Act, its application to South Carolina, the suspension of her literacy qualifications, certain of her voting records, voting history, the population characteristics of her people and something of her political characteristics.

The answer for the most part denies the allegations of unconstitutionality of certain sections of the Act.

This hearing is held pursuant to your order of November the 5th.

At the outset, we would like to make two points clear.

First, we do not here challenge the purpose of this Act.

We believe that every man, white or black, who can — who possesses the reasonable qualifications proscribed by State should be permitted to vote.

We further believe that Congress has a duty to enforce the prohibition against the infringement of that right.

Second, we do not attack most of the provisions of this Act.

The Act has broad remedial provisions which give courts tools to move in and stop discrimination in the use of literacy qualifications.

We do not here questions though.

Our attack is directed to some two and a half of the Act’s 19 sections.

Those sections which automatically suspend South Carolina’s literacy test and freeze her legislative powers without any court hearing.

Secondly, these are Sections 4, 5 and 6 (b) of the Act.

Secondly, whether you find those at pages 82 to 85 of the appendix our initial complaint was 4, 5 and 6 (b).

Secondly, we challenge the constitutionality of those criminal sections which make certain conduct criminal which is unrelated to state action and is unrelated to any discrimination on the grounds of race.

Those are Sections 11 and 12 and you’ll find those on page 91 and 92 of our complaint brief.

We have grouped our argument into two parts, those reasons why these sections are not constitutionally appropriate and those reasons why these sections do not constitute legislation.

First, is to the appropriateness.

This Act is grounded upon the Fifteenth Amendment, which requires that it’d be appropriate.

In acting under this amendment, Congress must legislate against the background of the entire constitution.

And we submit that if this Act violates fundamental rights secured under other provisions of the Constitution, or if it is an attempt to exercise powers which the Fifteenth Amendment does not bring, it cannot be appropriate.

These sections we submit do both.

First, the Constitution as originally drawn, never gave Congress any powers to fix voter qualifications.

The sole permission and the power that Congress had in the Article 1, was to proscribe in connection with times, places and manners of federal elections, in effect the constitutions of each state were incorporated in the United States Constitution, insofar as voter qualifications are concerned.

There was no problem of the Supremacy Clause with respect to those qualifications.

David W. Robinson:

Congress never had the power.

This is why the Fifteenth Amendment and the Nineteenth Amendment had to be amendments.

Congress itself could not move into this area.

Before these amendments, there’s no question but that literacy and similar property and other reasonable voter qualifications were perfectly legitimate and legal, and constitutional.

Now, we submit that the legislative history, the language of the amendment and the decisions of this Court today, showed that the Fifteenth Amendment gives Congress no power to suspend lawful reasonable voter qualification proscriptions of the States.

The history of the Fifteenth Amendment you have before you in the appendix of the Virginia brief.

I would also call your attention to the new book, just to the Johns Hopkins press written by Mr. William Gillette, entitled The Right to Vote.

This is a Connecticut political history professor.

He’s done a beautiful job.

These authorities clearly show that the authors of the Fifteenth Amendment considered and unequivocally rejected the idea of — by the Fifteenth Amendment authorizing Congress to move into this area and proscribe or strike down voter qualifications, in connection with preventing racial discrimination.

Now, the specific language of the amendment is clear.

The right to vote shall not be denied on account of race.

The power given to Congress is to impose these prohibitions.

And I think this is the basic difference between my Brother and myself.

He contends that under this enforcement power, Congress has the right to anticipate a problem and move in and prevent that problem.

Gentlemen, that is regulation.

That is the power that Congress does have under the Interstate Commerce Clause.

That’s a plenary power.

Congress has all of the powers.

It surely under that power to regulate, in the Interstate Commerce Clause, it can anticipate a problem and meet that problem before it occurs.

It’s mindful of a city council with zoning laws.

The city council can proscribe for growth problems of a city through its zoning on it’s will before they have it.

But gentlemen, this is the power to regulate.

The power of the Fifteenth Amendment is the power to enforce.

This is a power that the policeman has on the street corner.

Policeman cannot arrest me as a citizen because he thinks there’s a danger that I’m going to commit a crime.

This, you gentlemen have said over and over again, only so clearly in the demonstration cases, that crime must occur, the enforcement power, he cannot arrest me because I have a bad record.

He can only arrest me when I’m committing a crime.

This is Congress’ power to legislate under the Fifteenth Amendment.

It is the power to prevent only what’s prohibited, any law.

David W. Robinson:

We are told that the reason for these trigger sections is that literacy test may be abused and a low vote indicates that they will be abused.

Any law gentlemen, any law administered by man is subject to abuse.

The fact that these sections may be abused gives Congress no power to suspend under an enforcement power.

We submit that none of the defendant’s authorities sustain as this is the (Voice Overlap) —

Potter Stewart:

Isn’t the — isn’t the theory — maybe it’s just a matter of words, but isn’t the theory that the combination of the literacy test and the local as evidenced not that they may be abused but that they have been abused.

David W. Robinson:

Not as I read his brief, Your Honor.

Potter Stewart:

You don’t.

David W. Robinson:

He has testified before Congress that South Carolina has not been given the type of discrimination of massive widespread discrimination of both, this is his testimony.

He never charges us with that in his brief.

His whole brief is that the combination of these two factors indicates that it probably will have.

There’s a danger, as I read his brief.

This is the whole basis that he would sustain as legislation.

This basic distinction was made by this Court in the civil rights cases.

Mr. Justice Bradley, and I call your attention to that case, particularly his language at pages 14 and 15 and 18.

Mr. Justice Bradley, the civil rights cases went into this difference between the power of Congress to regulate and a power of Congress to impose.

And he made it clear that under the Fourteenth Amendment which has the identical enforcement power, Congress could not move into this field.

We didn’t put this case in our brief because we had no idea at the time we found that that this would be the basis of the Government’s position.

Finally, I would ask you to compare the differences between the sections that we attacked and those that we don’t attack.

The sections that we don’t attack are proper enforcement tight legislation.

They’d given the courts the tool to move in and correct these situations where they occur.

The sections we attacked absolutely regulate, they suspend our literacy qualification.

They paralyzed our legislature, we can pass no more laws in South Carolina dealing with elections, unless we come to Washington and get Washington’s permission.

This is regulation, and this power, Congress does not have.

The only other present besides the Interstate Commerce Clause cases on which the defendant relies is Louisiana versus United States and I’d like to comment on that if I could.

In that case, the Court said that Louisiana adopted a new citizenship-type test for registration.

The Court said this was top or within the test that you’ve been applying.

You’ve got to give the same test to everybody.

You cannot let the new voters or make the new voters take this new test unless you make everybody take it.

So until you make everybody take it, we suspend it and leave it as it is.

There was nothing wrong with the new test.

David W. Robinson:

The Court didn’t say that Louisiana couldn’t have made everybody take this new test.

This is the same thing this Court said in the Grandfather clause cases, there’s nothing new.

Everybody has got to take the same test, everybody got — has the same qualifications, this is proper.

South Carolina’s test that its citizens be able to read and write only.

We don’t need to have an English requirement, read and write.

This test has been on these books for 70 years.

We require re-registration every ten years, to make sure that if one guy slipped through ten years ago presumably, there’d be new administrators in ten years, he’ll have to take it.

What more could you ask for?

This is a simple test, all that we require.

Potter Stewart:

How’s the test administered?

David W. Robinson:

It has been administered just like the —

Potter Stewart:

Well, what I mean to say is can a person simply sign an affidavit, I know how to read and write?

David W. Robinson:

No Your Honor.

We require them to read a section of the Constitution.

And I can’t speak personally except where I’ve seen it in my own county, but it’s been a short two or three words or sentence

Potter Stewart:

They just fixed it up and read it aloud?

David W. Robinson:

Fixed it up, reads out loud, and there’s a form which we’ve reproduced, attached to our complaint that he fails out showing where his address is and his age and so on, so he didn’t know?

Potter Stewart:

And that latter shows his ability to write.

David W. Robinson:

That’s all it is.

That’s all it is, and they gave — and actually they’ve given help — sometimes it takes some of these people 20 or 30 minutes filling up but they’ve been given the time and given the help to do it.

If you go and have a literacy requirement, if it’s permissible to have one, I don’t think that our requirement could be any simpler.

It’s much simpler than New York, so many of the States which are not touched by this law.

Byron R. White:

Mr. Robinson, you have no complaint about the Louisiana case?

David W. Robinson:

We don’t think the Louisiana case is applicable.

What if — if we to read it correctly, all the Louisiana case said —

Byron R. White:

You did nothing that — nothing that you argue is inconsistent with the Louisiana case?

David W. Robinson:

I don’t see it.

Byron R. White:

And Louisiana case is inconsistent or it doesn’t preclude anything that you argue?

David W. Robinson:

I do not say it is doing so, Your Honor.

As I see it, all the court there said, you’ll go and put in this new test.

Byron R. White:

Well the Cong — you would concede them that Congress could’ve done just what the Court did there.

But if you said the Louisiana’s test must be suspended until they give the new test to everybody.

David W. Robinson:

I don’t think it could.

I think that Louisiana — the Court — I think there’s the difference in an equity power and a legislative power.

Byron R. White:

So you don’t think that — you don’t think that Congress could have done what the Court did.

David W. Robinson:

I do not.

Byron R. White:

And what if it could?

David W. Robinson:

Well, I don’t think it can.

Byron R. White:

Well, what if it could — we listen up to same issues that —

David W. Robinson:

I don’t think it is here.

Because we don’t have a new test, first of all, I think the Congress — if Congress had been talking about Louisiana, they’ve said, “Well, you put in a new test.”

Byron R. White:

Yes, but I take that what you’re arguing is that the Congress can only as it in — in enforcing the Fifteenth Amendment, order or make a crime out of or otherwise preclude or forbid States from discriminating in the application of their test.

David W. Robinson:

That’s correct.

Byron R. White:

They may not, you say, Congress may not, even if it shows that the test has consistently been discriminatorily applied, Congress may not even in those events suspend the operation (Voice Overlap) —

David W. Robinson:

That — that’s our position.

Now I think Congress could send in federal examiners tomorrow.

Byron R. White:

Even though a court could.

David W. Robinson:

Even though a court could.

Byron R. White:

Do you think if you’re —

David W. Robinson:

I don’t think the court could.

No Your Honor, I don’t.

I don’t think that’s what the Court said.

Byron R. White:

Well not, but the Court do it in Louisiana.

David W. Robinson:

I don’t think that’s what the Court said.

All the court said in Louisiana was “You’ve got two tests.”

Potter Stewart:

Or it’s — thus, the test was suspended nevertheless.

David W. Robinson:

It was suspended because it was a new test and all — the Court didn’t say, you couldn’t put in the new test tomorrow.

But if it said if you do, you got to make everybody take it.

Potter Stewart:

You don’t think that a court then could enjoin the use of a literacy test for any period of time.

David W. Robinson:

We don’t reach that question in our position.

David W. Robinson:

This is what Congress has attempted to do in Section 3 (b), I believe it is of the Act.

I would question then, I would think that proper remedy for the Court would be to send any examiners, federal or otherwise to register these people under the state requirements would see that they finally registered.

I don’t think that there’s anything wrong with the requirement, nothing in the requirement says that Negroes couldn’t vote.

Certainly, that is not the requirement there, but the literacy requirement is not bad.

It’s not out of reason to require that people be able to read and write — read and write.

They may not understand the Government.

But certainly, if they cannot read and write, their chances have been not understand, how much high than why won’t my seven-year-old daughter vote?

She can read and write, but the reason for the age requirement is designed to encourage the possibility or the probability that your people will understand what good government is.

And this is all that a literacy requirement is, it’s not a bad — United States Government, requires that every foreigner who comes to this country to — who wants to become a citizen.

Before he can become a citizen, he must be able to read and write the Constitution in English and understand American history.

Byron R. White:

Well, Congress can by legislation attempt to prevent the use of literacy test as engines of discrimination.

David W. Robinson:

Right.

Byron R. White:

But you say that it may not suspend the use of those tests even where it’s been proven that the test has been —

David W. Robinson:

We don’t think —

Byron R. White:

— supported.

David W. Robinson:

— that would be the proper remedy.

And that Congress — if that situation occurs and if Congress would have concluded that it couldn’t in no way even with federal examiners catch up, so to speak, put these people in the proper proportion — Congress might — could’ve even require re-registration under the fair test.

That is to put everybody on this.

But the test itself is not bad, there’s nothing wrong with the test, and if — if the Constitution doesn’t give Congress the power to knock the test down, this is our position.

And even it has pass that power, our second point here is that Congress has —

Byron R. White:

Yes, but does it — did the Congress say, we’re going to suspend it?

Didn’t they say that this test has been so wrapped up with discrimination and at least in some stage that it ought to be suspended until the State indicates or until there’s been some showing that it’s no longer used as a discriminatory device?

David W. Robinson:

This is what the Congress said.

Byron R. White:

And you say they can’t do it.

David W. Robinson:

I said they cannot do that on the enforcement power.

I said maybe they would require re-registration, but there’s nothing wrong with the test, and that the power is enforcement.

Our second position that even if it has that power, these Sections 4, 5 and 6 violate clearly the due process requirements of the Fifth Amendment.

These requirements require that any statutory presumption, one, be not arbitrary.

That is to say that the conclusion presumed be reasonably related or reflected in human experience to the basic facts proven.

Secondly, that it not be irrebuttable.

Hugo L. Black:

Does the statute use the word presumption?

David W. Robinson:

It does not in itself, Your Honor, say they’re setting up a presumption.

But what it says, if these two things exist, that is if there’s a low vote and if you have a literacy test, then you lose your literacy test unless you come to Washington and be declared that you have the court decide that you haven’t been discriminated.It’s a presumption in effect.

Hugo L. Black:

Why — why is that a presumption?

David W. Robinson:

Because it must be — it must presume racial discrimination.

This is the whole part of the Act under Fifteenth Amendment.

What the — the Congress is acting to prevent racial discrimination and what it just said is through this test, there was or is a danger of racial discrimination because of these facts.

This is — this is got to be the presumption that that legislation is based on.

Otherwise, it’s not Fifteenth Amendment legislation.

Tom C. Clark:

You have the right to disprove it though.

David W. Robinson:

We have the right to disprove it, well, we definitely we don’t.

It’s irrebuttable.

And — can I first address myself to how arbitrary it is I think.

The presumption says that we’ve been guilty of racial discrimination and registration.

That is the use of our literacy test to discriminate and who we let get registered.

But the Act is not applied to us because of registration, because of low registration.

The Act applied — is applied to South Carol — solely because South Carolina had a low vote in the presidential election of 1964.

Now, we submit that human experience does not say, does not tell us that the fact that registered voters did not vote, is evidenced of discrimination and registration.

The fact that — my neighbor stays home on election day is no indication that the officials have not let people register and this is exactly what Congress has done to us.

Potter Stewart:

Any — what’s the percentage of registered voters among the adult population of South Carolina?

David W. Robinson:

South Carolina has 56 point something of its total over 21 population registered.

It voted 38%, which is extremely low.

The evidence —

Potter Stewart:

And all of those — I want to be sure we understand each other, all that 56%, all of those people were freely illegible to vote —

David W. Robinson:

This is I —

Potter Stewart:

— out of their own choice.

David W. Robinson:

That’s correct.

Every —

Potter Stewart:

No further poll taxes or —

David W. Robinson:

No poll taxes —

Potter Stewart:

— qualifications for that?

David W. Robinson:

— no, nothing.

No, nothing.

That Congress had said because they didn’t vote.

We must have been discriminating on racial grounds.

And this just does it on —

Potter Stewart:

Discriminating on registration.

David W. Robinson:

On registration.

Potter Stewart:

Because disqualified registered people didn’t vote.

David W. Robinson:

That’s correct.

The evidence before Congress doesn’t support this in any way.

The evidence before Congress shows that there were four States with massive discrimination which were not covered by this treatment.

It showed there were twos — and those four States registered fewer people without a literacy test.

And South Carolina, didn’t waive.

Byron R. White:

What was involved in your case, in your — what would — what did the Attorney General’s advanced in –?

David W. Robinson:

That we voted —

Byron R. White:

For registering?

David W. Robinson:

That we voted — he invoked that by point — we voted less than 50% —

Byron R. White:

In voting under the (Voice Overlap).

David W. Robinson:

That’s correct.

That is only one state corner of the registration.

Everybody voted over 50.

There were two States —

Potter Stewart:

I didn’t understand that.

David W. Robinson:

There’s only one State that’s covered.

I believe Mississippi is the only one that’s registered.

Potter Stewart:

That has deal with the 50% registrants.

David W. Robinson:

Right.

Potter Stewart:

All the others have more than 50% registered voters —

David W. Robinson:

Less —

Potter Stewart:

— fewer than 50% voter —

David W. Robinson:

That’s correct.

Potter Stewart:

— is that right?

David W. Robinson:

Yes sir.

Potter Stewart:

Now you said there were four States which were what?

David W. Robinson:

Which?

Potter Stewart:

They’re not covered but which were what?

David W. Robinson:

But which — and where there was evidence presented at Congress, a massive racial discrimination who registered without a literacy test, no more than fewer percentages than South Carolina, they’re not covered.

Potter Stewart:

Which States are they?

David W. Robinson:

Arkansas 56, Florida 54, Kentucky 51, and Texas 56.3.

Potter Stewart:

Those percentages are registration.

David W. Robinson:

Registration of total population.

Byron R. White:

Does the record have in it the respective percentages of whites and Negroes registered in your State?

David W. Robinson:

No, it does not.

I don’t believe so.

Byron R. White:

I see in Virginia’s — in the State of Virginia’s brief, they have some figures here but you don’t — that’s not —

David W. Robinson:

There were some figures before Congress.

I think that indicated some 36%, somewhere in that neighborhood of Virginia (Voice Overlap) —

Byron R. White:

But in this brief, it says there were 69% of your white folks and 34% of your Negroes, isn’t that right?

David W. Robinson:

34, I think that (Voice Overlap) — I’m not sure, probably, we had — I do not know but we don’t dispute.

Hugo L. Black:

But (Inaudible).

David W. Robinson:

A vote?

Yes Your Honor, we’ve got the poll voting history.

We attached I think —

Hugo L. Black:

Where is that on these papers?

David W. Robinson:

Exhibit C.

Hugo L. Black:

In the original —

David W. Robinson:

In our original papers, Exhibit C1.

Byron R. White:

What page?

Hugo L. Black:

What pages?

David W. Robinson:

Page 21, it’s a pulled out page.

We’ve tried to go all the way back with all the figures we could find on primaries and general elections.

The figures are hard to come by because the records have been kept like they should have been.

Potter Stewart:

What’s the percentage of illiteracy in your State?

David W. Robinson:

20%.

20% of our adult population is illiterate.

And if you exclude 20% from the total 21 vote then we are voting and registering.

Or we’re certainly registering right at the national average.

This is our problem.

This is why this case is arbitrary and let me come to this point, if I may.

What will any State that has a large percent of illiterates and the literacy test that keeps them from voting, is always going to have a smaller percent of its population registered and a smaller percent that can vote to than a state either which has no literacy test or which has a small percent of illiterates.

Look at the facts, every State is covered that has — that has a literacy test, also has a huge percentage of illiterates.

On the other hand, the States that are not covered, Massachusetts has a literacy test, 6% illiterate.

Illiteracy doesn’t make any difference in Massachusetts.

California, 5%.

South Carolina on the other hand, her literacy test does mean something with 20% of her population are functionally illiterate.

Potter Stewart:

Did you say it was 20% of the adult population?

David W. Robinson:

Of the adult population.

Potter Stewart:

That is the potential voting population?

David W. Robinson:

Potential voters.

What Congress has really said by picking these factors is that, South Carolina, if you have a literacy test, if you have a lot of illiterates, you’re bound to be guilty of racial discrimination.

And that’s where the whole thing comes down to, we have reproduced the figures in these exhibits.

This is what I’m asking you because we have a lot of illiterates and because we keep them from voting, we are guilty of racial discrimination.

Now gentlemen, this is just arbitrary.

This — it has no basis, we submit in human experience.

The presumption is irrebuttable.

The basic purpose of a statutory presumption is like here to shift the burden of proof.

That is by proving one fact.

It’s up to you to disprove a conclusion.

This is what a burden of proof is or back, or presumption.

David W. Robinson:

Let me take the facts which this Court will remember from gaining.

That Congress said that if a man was present at a whisky still, he was presumed involved in making the whisky.

Now the man at the whisky still — on the other hand if he could come in and prove that he was present because he was delivering the mail, because he was looking for John Jones to collect the rent, he could explain his presence.

For some reason, it was completely unrelated to the conclusion that is being involved.

The whole presumption fail and it wasn’t necessary for him to prove that he was not involved.

But if a man either could not or did not explain his presence at the whisky still.

He then had to assume the burden of proof and that he was not involved in making the whisky.

What is the basic fact here?

The basic fact here is a light vote.

Yet, South Carolina cannot come in before any court and explain why it had a light vote.

We have attached in our exhibits, our schedules would show that South Carolina’s population characteristics or the reasons she has a light vote.

These are not dangerous grounds, these are grounds unrelated to race, low income, low education, more rural population, even the age of her population falls into non-voting groups.

The religion of her population even falls into non-voting groups that as California tells us, the Southern Negro, when he goes to California does register and vote when presumably, they have a fair case.

Potter Stewart:

That’ll point — yes, he’s been rather out to have it.

David W. Robinson:

Well, this is what they assumed but we administered our case as fairly as they do and they don’t vote at all.

This is of course his assumption but we think it’s a characteristic that people just — and this char — these are non-dangerous reasons, because all we want the opportunity to prove it.

We can’t come into court and prove that.

The only recourse that South Carolina has under this theory is to go into court and prove that it hasn’t discriminated for a single day for the past five years in racial — in registration, not even in 1964.

This is like telling the criminal, you accuse be stealing this car but you took — it’d be let time lose, you’ve got to prove you hadn’t stolen a car for the last five years as well as this car.

Gentlemen, how does the State come into a court to prove it hasn’t done anything?

How do I come into court and prove to you that I haven’t committed a crime.

I know I have.

Sure, I have the information as my friend would tell you, we had — but how do I prove it?

We can bring all the registrars of the state up here and then one fellow could come in and say well, three and a half years ago, I applied to vote but you didn’t let me.

With — the very start we didn’t remember the fellow.

We then got to go check him out and find out who he is and where he was, and so it’s an impossible kind of burden of proof is what I’m trying to tell you.

No matter how innocent you are.

Byron R. White:

You don’t think — the provisions of Section 4 (d), doesn’t help you under Section 5, is that it?

David W. Robinson:

I don’t think it does.

I think it’s somehow, I think it perfectly defines what you have —

Byron R. White:

Because it says that an old political subdivision will be determined to have engaged in the use of test or devices that the incidence had been few in number and so on.

Do you think that’s —

David W. Robinson:

I think that’s helpful.

I think this tremendously helps.

Byron R. White:

Well, it isn’t true then that you would have to prove that you couldn’t discriminate just a single day.

David W. Robinson:

Well, it’s not true in the sense that — I of course do —

Byron R. White:

Maybe you would have to be — you don’t have to be more than just a few instances.

David W. Robinson:

I think it would.

I think —

Byron R. White:

Do you think that this provision then does — is available to you in a suit in the District of Columbia?

David W. Robinson:

I think it would be tremendously helpful, Your Honors, no question about that.

We had took on that burden.

How do you prove under that section there’s no danger?

I don’t know.

Hugo L. Black:

Do you think it’s the same rule with reference to presumption and burden of proof which you’re talking about that’s applied in criminal cases necessarily apply to Congress in passing along?

David W. Robinson:

I do, Your Honor, because I think here we discuss the fundamental governments of the States.

Congress has suspended South Carolina’s legislature.

Congress has taken away her right to have her officers chosen by literate people, by people who can read and write.

Hugo L. Black:

Is that good?

You say it’s taken away her right, that’s one of the question here, isn’t it?

If that right, if that practice turns in the way of following out the subdivision two of the amendment, how could you say that that’s necessarily right for the State?

David W. Robinson:

Well, of course —

Hugo L. Black:

If Congress reaches a conclusion that just meant to say they do that in order to enforce it, their right, their privilege to vote.

David W. Robinson:

Well, let me say this.

If literacy test are bad, if Congress has decided that literacy test all the way are bad things, they should have abolished them nationwide.

Hugo L. Black:

They could have done it, Couldn’t they?

David W. Robinson:

I don’t think they could Your Honor because I don’t think that the Article — as we tried to point out, the Fifteenth Amendment gave Congress the power to regulate suffrage generally.

I don’t think they could have done that.

But if they were going to do it, this is what they should have done.

This is where your principles of equality of State that would come into play.

David W. Robinson:

If there ever was a principle that that I know of in the history of this country has been that each State was entitled to equal treatment.

We’re not talking here about the different classifications based upon population or income or geographical terms.

We’re talking about different treatment of sovereignty.

Byron R. White:

But who would — how have you been treated differently from someone or your State?

David W. Robinson:

Well, we have lost our right to enact laws and to have a leader elected.

In Massachusetts, California, some 11 or 12 other States across the country have not.

Our sovereignty has been treated differently.

We’ve been told, South Carolina, you’ve got to come to Washington and you get to be declared clean before you can do these things.

California doesn’t, now these things are bad.

Byron R. White:

That’s because of the — that’s because of certain set of facts that the Act deals with this in your State.

David W. Robinson:

Well, of course —

Byron R. White:

And that doesn’t in some other States.

David W. Robinson:

But if the basic part that Mr. Justice Black has mentioned was that we’ve lost this right because these are bad things and it’s our position that ought to be done away with the initial requirements.

Of course the facts, we’ve tried to show that we’re condemned on it.

The facts have nothing to do (Voice Overlap) —

Byron R. White:

Of course the facts are as you stated them in South Carolina and about what the evidence was before Congress, you could easily win your suit in the District of Columbia.

David W. Robinson:

We think we have the burden, no question about it.

The defendants then made, if you’re innocent he’s not going to contend.

And let me point out what happened in this case even if —

Hugo L. Black:

May I direct on the statements you made with the kind of burden.

I didn’t intend to leave the impression that I thought those were bad.

What I said was that Congress had a right to conclude that they would stand in the way of the right to vote so that it would have power under part two of the Fifteenth Amendment to legislate against them, which is quite different.

David W. Robinson:

It is, and I apologize.

I didn’t know that —

Hugo L. Black:

No, I know, you don’t need to do that, I just —

David W. Robinson:

I’ve —

Hugo L. Black:

I would like to ask you just one more question.

David W. Robinson:

Yes sir.

Hugo L. Black:

Suppose you’re right that this law should be applied generally throughout the country on a uniform basis as a provision at the end of the Act which says that anyone part of the Act is held bad, anyone part of the Act is held bad that that shall not affect the other parts of the Act.

Suppose it were held, suppose one would agree with you that it should be applied all over the country?

Hugo L. Black:

Why would that necessary to be a part of this Act?

Why couldn’t the Act stand without it?

David W. Robinson:

Without these sections —

Hugo L. Black:

That the Attorney General carry out his plan against any State he would have.

David W. Robinson:

Under the other sections of the Act?

Hugo L. Black:

Yes.

David W. Robinson:

I have no objections, none whatsoever.

We don’t question those other sections, Your Honor.

Let me mention one more fundamental provision of our Constitution, it seems essential to me that I think may put a little different light on it.

We — the reason for forming the union was to protect the governments of the States.

This was the whole purpose of having a union, was to put each State to join together to preserve others, their internal governments.

These sections freeze and destroy South Carolina Republican Government.

The impact of here — of these illiterates on her elections is going to be tremendous.

We’re talking about 20% of the population, that’s 270,000 people, she only voted 525,000 people in that 1964 election.

We’re not talking about a theoretical problem, I wish it were theoretical.

We had 5 or 6% population illiterate, we’re not talking about the major problem and I hope that they’ll come and we’re working on it.

When we are — we’ll be in that category.

This is a national trend, bt gentlemen, we are talking about a tremendous impact on South Carolina’s government.

We’re also talking about freezing her legislature.

There is absolutely no president in the history of this union for the central government telling any State legislature that it cannot enact law unless we approve it.

This has never been done and there’s no need to do it here.

We have reproduced at Appendix A in our first brief the whole history of changes in South Carolina’s election alone, in the entire trend over this whole period, it has been to liberalize who could vote and make it easier for everybody to vote.

We haven’t kept anyone from voting by manipulating our laws.

There’s no need to freeze our legislative function.

There are several other reasons looking at these sections against the Fifteenth Amendment alone as to why they’re not appropriate.

Getting the other provisions of the Constitution, Fifteenth Amendment is nationwide.

Its protections are nationwide, as we’ve animated, if literacy test are bad they ought to be stricken down nationwide.

The substance of the amendment is to prevent discrimination.

It doesn’t create the right to vote for anybody.

Congress here has created the right of an illiterate in South Carolina to vote.

David W. Robinson:

Whether the administration wants more people voting or not the Congress has no power to do this.

The power of the amendment is to prevent racial discrimination.

White, illiterates in South Carolina vote.

Her legislature is frozen regardless of whether these new laws had anything to do with race.

The power is to prevent — is the grant protection against state actions.

The criminal sections had no — nothing to do with state acts.

The remedy itself is excessive.

As we’ve animated, there’s no — that the problem here, the whole problem the Congress had is misadministration.

And we submit to you when you get a case before you or a man who is convicted in violation of the Constitution, you don’t go with the law under which he was convicted.

You simply reverse the conviction, the result was bad, not the law.

Here, we’ve got a good law.

But the problem is misadministration.

Look at the minority bill, look at what the minority of the Congress proposed.

This was a bill which would have gone to misadministration and this is what we’re talking about.

There’s no need for Congress to move in and strike down this better qualifications.

As we’ve animated that these sections are not tailored to the known problem here; it doesn’t cover States where Congress was told of a massive discrimination.

It does cover States where there was no discrimination.

Look at Alaska, Hawaii, Idaho, Arizona, it’s just not an appropriate piece of legislation.

Finally, it unnecessary it blocks, nails the courthouse doors shut.

If a local community in South Carolina wants the construction of this bill, the only court that it can come to is the United States District Court for the District of Columbia, then it only has subpoena power for a hundred-mile radius from the district.

There’s no reason that this violates any sense of fairness of due process.

The defendant told Congress that he needed that to make the — voter uniformly construed.

But he has the right in the United States District Court across the country.

It would be no uniformity of the interpretation of anything.

Why in the world bar the people from access to reasonably accessible course?

This is just — this is completely unnecessary and it cannot be considered appropriate.

Abe Fortas:

Mr. Robinson.

David W. Robinson:

Yes sir.

Abe Fortas:

Excuse me.

As I read Section 4 (a), what would happen here would be that after — let us assume that the Court had not decide in South Carolina’s, the court for the District of Columbia, and South Carolina could come back to the court after five years had passed but not before.

David W. Robinson:

Correct.

Abe Fortas:

So that when the statute talks as I think it does in terms of a suspension, I suppose that one must leave that as meaning for five years after the prior administrative action has been taken and would you still say that the effect of the legislation is to abolish or to suspend?

David W. Robinson:

It’s to suspend.

Abe Fortas:

Yes.

David W. Robinson:

I was —

Abe Fortas:

I think it is.

David W. Robinson:

It’s unquestionably, within the five years, we could reinstate the test which your dealers affirmed down the road.

Abe Fortas:

Well that would — there’s nothing in the statute that rules on that one way or the other, is there?

David W. Robinson:

Not, but there’s nothing in all process as to strike, as I see it.

Abe Fortas:

No, but it doesn’t.

It doesn’t affect that question one way or the other, I’m asking for information.

David W. Robinson:

Not that I know of, Your Honor.

But it contains no — this is one of the reasons we’ve say we have no remedy.

In other words, if we went to the District Court today the people that we’ve been registering since August we’re stuck with.

Abe Fortas:

Yes.

David W. Robinson:

We have no right under this bill to take them off the road.

Abe Fortas:

Well, let’s — alright, may I ask another question.

Do I understand that maybe I — maybe you didn’t intend to say this, that an appropriate — if an appropriate circumstances and by appropriate procedure, there were inappropriate finding, whatever that might mean, that there was consistent maladministration to use your word, who do not challenge the power of Congress to do something whatever that something might be.

David W. Robinson:

That’s correct.

That’s right.

Abe Fortas:

So you concede that Congress would have the power.

The next question is this, as I understand this law, it provides that the Attorney General of the United States must make a finding, it’s in effect an administrative finding.

That’s under 4 (b) that — and he — his power to make that finding is limited to a particular category, that is to say the category where less than 50% of the persons of voting age were registered, et cetera.

Within that category, he’s empowered to make the findings, is that right?

David W. Robinson:

The finding, yes, that’s correct Your Honor.

Abe Fortas:

So that, you start off here with a finding by the Attorney General of the United States which is in the category of an administrative —

David W. Robinson:

No Your Honor.

Abe Fortas:

No?

David W. Robinson:

The only finding that he makes is that a literacy test exists.

This is just the question of reading the state law.

David W. Robinson:

He makes no finding that it has been abused.

He makes no finding that it has been used for racial discrimination.

His only finding is strictly automatic.

Abe Fortas:

Yes.

David W. Robinson:

That a literacy test does exist in these States.

Abe Fortas:

And then where the scheme of the Act is that after he makes that finding within that prescribed category, then the State has the opportunity under the statute to come into the United States District Court for the District of Columbia, and try to persuade the Court that no such test has been used for the purpose or with the effect of denying or breaching the right to vote on account of race or color.

Is that — do I correctly understand the scheme?

David W. Robinson:

This is my understanding of the mechanic, yes sir.

Let me — even if Congress can do that, what you have just described, this brings me of what I think is the most basic objection to this section.

The Fifteenth Amendment power is the power to enforce by legislature.

We submit that this section constitute a congressional adjudication, they are not legislations.

As we understand that the constitutional separation of powers, Congress may define characteristics of people or things and say — and this definition is necessarily based upon past conduct.

We define these characteristics, anyone who falls into this class in the future who has these characteristics are subject to certain rules; this is rules for the future.

On the other hand, adjudication says because of past conduct.

You people before us, you people before the Court, and you only, are subject to certain rules in the future.

That’s the difference, as I understand it between legislation and adjudication, now what do we got here?

Congress has said, that the existence of a low vote and the existence of a literacy test, indicate a danger of racial discrimination, but not general and not hereafter, but only in 1964.

If in 1968, Massachusetts, with the literacy test, voted 40% of its total population over 21, it does not lose its laws.

If Texas, who only voted 44% in 1964, adopts a literacy test today for the purpose of discriminating and only vote 44% in 1968, it does not lose its law.

It does not have its legislature suspended.

This is adjudication.

What Congress had said here is only for you certain people at this time and nobody else ever again can these two factors cause the loss of laws in the suspension of legislature.

And let’s look it even further, how they completed the adjudication.

This Court said time and time again, while Congress can define classification, the courts ultimately must decide who falls into that classification.

The Congress has deprived us of the right to contest the certificates of the Bureau of Census or the Attorney General.

They’ve not only by picking this formula which the defendant testified was picked because of who it covered.

By picking this formula, they’ve not only completed who’s covered but they said you can’t have a contested coverage and it never applies to anybody else again.

Now, if Congress can do this I suggest to you that the existence of a low vote and the existence of a literacy test, if that’s evidence of racial discrimination, it’s got to be evidenced of racial discrimination in 1968 and 1972 and 1976.

Congress cannot pick out a few things and say because these facts existed only you and you.

This is what they have done and this is really problems of the most basic —

That’s the question I want to put to you, suppose that Congress had go with it directly and say on the basis of our investigation we find that in the States of the union, there has been racial discrimination brought about and imparted by the use of literacy test and we find that that exist in named States, nine named States.

What would be the constitutional objection do the Congress (Voice Overlap) —

David W. Robinson:

We think that’s adjudication.

What?

David W. Robinson:

That’s adjudication.

Congress has held a hearing, they’ve taken the test —

Now, suppose that they are named States.

David W. Robinson:

I’d still say its adjudication.

A legislative function does not include the right to put a penalty on one person or one group and one group only.

And this isn’t a penalty, this is a question of ensuring by congressional legislation.

David W. Robinson:

But this — it can’t do this.

So it’s closed the place, if it does that.

It have —

Well, it possessed future legislation.

David W. Robinson:

That’s right.

And they can define what it shooting at and it could such assuming that we’re wrong as we’ve gotten after this one.

Assuming it could say that where there’s a low vote and where there’s illiteracy test —

And —

David W. Robinson:

— that’s the evidence of discrimination and you lose your literacy.

Assuming it could say that, it’s got to say it to everybody.

That’s the question I just put in you, why?

David W. Robinson:

Because if it doesn’t, it’s adjudicating.

And the powers are separated in our Constitution, this Court and the judiciary are the only one who can exercise a judicial function, and that is adjudication.

William J. Brennan, Jr.:

Your point is that Congress could abolish the literacy test under the Fifteenth Amendment because if was shown as a matter of experience to be instrumentality of discrimination.

David W. Robinson:

Well, we deny.

That’s not our point.

We assume — assume that it could.

It can’t do it this way.

William J. Brennan, Jr.:

But it could — do you think it could or —

David W. Robinson:

No Your Honor, I do not.

David W. Robinson:

I do not.

I think that the enforcement power like the policeman cannot write a law and the policeman’s only power is to go and stop the crime when it’s being committed.

I think that’s what enforcement power is.

I think this was the distinction Mr. Justice Bradley made in the civil rights cases in James against Bowman and so on.

These are what these cases say but even if you assume that Congress could, even assume I’m wrong on that, Congress cannot adjudicate.

It’s got to prescribe a set of laws that applied to everybody from now on.

If Texas or Massachusetts votes low in 1968, it’s got to come on in and join this category.

Otherwise, Congress is adjudicating.

It’s hearing certain parties.

It’s taking testimony.

It’s drawing inferences and it gives you a five-year sentence with a parole.

You’d come to Washington if you get paroled.

This is about what this thing amounts to (Voice Overlap) —

Hugo L. Black:

Is this the same principle at which you apply or prefer to apply to the state legislature?

David W. Robinson:

I think it probably would but I don’t think —

Hugo L. Black:

Suppose the state makes it a crime to gamble — have gambling in one county only, picks it up, what about that?

David W. Robinson:

Well, I think that — would the State —

Hugo L. Black:

I think we’ve had that case out of (Voice Overlap) related to that.

David W. Robinson:

I think there you’ve got it more into an equal protection situation with the State.

We’re talking about here of the Constitution that specifically separates these powers, Article I, II and III or just as clear as they could be.

And we’re talking about here and the bill of attainder comes in.

But I don’t even think that attainder is necessary.

I think we have punishment here but I don’t think it’s necessary.

Hugo L. Black:

How was that?

David W. Robinson:

In our position.

Hugo L. Black:

Which provision did you say it’s clear that a law passed by the Federal Government must apply a light in all the State, which one?

David W. Robinson:

We don’t cite any section that says that.

What we say is that Congress must define things in terms which permit anybody in the future that possesses those characteristics to come into class or get out of illusions of this category.

When you close the class, this is what you do with the court, you only rule this to the parties before the court or the groups and you only prescribe rules for them through judgments or injunctions in the future.

This is what a court does.

David W. Robinson:

This is what Congress is doing if it says your State now and nobody ever again.

And this is what we say on the Article III and Article I, Congress just cannot.

Earl Warren:

Mr. Robinson, may I ask you this question.

If Congress found from the testimony before in its hearings that there had been certain discrimination against Negroes in many parts of the country and then it wanted to enact the law to prevent it, could it not have a starting formula for taking care of those situations where they have been discriminated — just let me finish please.

David W. Robinson:

Yes sir.

Earl Warren:

Where there had been discrimination and say, any State that finds itself in this condition is subject to the provisions of certain sections of the Act, 4, 5, and 6.

But that in the future, after we have gone through that procedure, in the future, it would be judged or each case will be judged in a different — according to a different formula or to a different procedure, now would that modify equally to all States and why is that wrong?

David W. Robinson:

We think it would but singling out a given few, they are in effect adjudicated.

Based on the testimony that they’ve heard solely and maybe they’re right, maybe Congress is right.

But it’s the exercise of a judicial function to put these States in and close the class is what we say.

Now, we don’t think that Congress — by closing the class now, what they’re saying is this thing can occur anywhere else.

Earl Warren:

No, but if it has occurred in certain States, then Congress was to have a starting point to remedy this situation.

I ask you, why you say that it applies just to those States?

Apparently, it’s been applied also to Alaska and I don’t think anyone had any idea that Alaska came on to this Act because we thought that we never heard about any such discrimination there.

But it did fall under it apparently and I don’t see why any other State that was in the same condition wouldn’t have been subject to the Act as you are and therefore, it would be a general law.

David W. Robinson:

Well, of course this is true, Your Honor.

That only the States that have those two factors, low vote and literacy test, are covered.

We’re not — I’m not saying there’s anything wrong with that.

I’m saying on this part and I think if you say this and this only then you get into an arbitrary problem because Congress is not covering areas where there is discrimination otherwise.

But what I’m saying is by defining these factors, Congress can’t say that we only apply these factors today.

This is my — this then closes the class and adjudicates those people and those people alone.

I think Congress possibly could say.Of course, our position is to the contrary but it could say these are bad factors.

You people have got them today, we apply them to you.

But it’s like all legislation it continues and it should continue, and if the situation occurs in Texas or in Arkansas and they adopt the literacy test, why shouldn’t they fall on it too?

Earl Warren:

What Congress — hasn’t Congress provided other procedures for taking care of that?

David W. Robinson:

Other procedures nationwide but these things —

Earl Warren:

Yes.

And hasn’t it also provided the procedure for those who find themselves in that condition to take themselves out of it?

David W. Robinson:

I think the basic and I don’t — the basic difference is that by using these tests themselves, by not making them continue.

This shows that Congress has adjudicated those States.

David W. Robinson:

This is — by just saying, we’ll — this is what the court does, we bring in and look at the evidence here and there, just for you.

And this is what Congress has done.

If they had said generally, if they had said generally, that would be legislation but they have taken testimony.

They’ve heard the evidence.

They said, “Okay just you and now and now only.”

This is adjudication.

This is something only a court can do, we submit, and South Carolina has no court ever, anyone has said that we’ve used our literacy requirements to discriminate on the grounds of race.

Potter Stewart:

Now, was this part of your argument, the — this appeared instead of November 1st, 1964, in the presidential election of 1964, Congress had said November 1st of any — even numbered here or there are any presidential election.

David W. Robinson:

It would.

I think it would.

Potter Stewart:

That your — this part of your argument goes to that?

David W. Robinson:

I think it does.

I think it’s — well what my argument is that that shows it’s not legislation.

But I think if they had setup a continuing category, I think that — that would be legislation and I wouldn’t agree that that’s Constitution.

Potter Stewart:

I’m talking about this part of your argument.

David W. Robinson:

That’s right.

That shows — that’s what shows it’s not legislation.

Potter Stewart:

I see that you — what shows what?

David W. Robinson:

The fact that it’s tied to one point in time, November 1, 1964.

I mean, I think that Congress have said whenever — in any presidential election, you vote like this, this is the danger, that would be legislation.

Now, whether it would be a bad legislation it’s not there.

Potter Stewart:

Or on November 1st of any even number here.

David W. Robinson:

That’s correct.

In conclusion, in preparation of this oral argument, Attorney General McLeod told one authority, in my attention I’d like to read to you, if I might — if I could.

Earl Warren:

Sure?

David W. Robinson:

He has forbidden his governors to pass laws of immediate and present importance unless suspended in their operation until his ascent should be obtained.

And the document continues that his sponsored legislation, “for transporting us beyond seas to be tried for pretended offenses; for taking away our charters, for abolishing our most valuable laws and altering fundamentally the forms of our governments; for suspending our own legislatures” and it continues.

These passages as you gentlemen recognized it from the declaration of independence.

And it’d be quick to say that South Carolina is not about to see, we’ve tried that once and we’re not going to — but I’ve called these passages to your attention, for the sole purpose of showing that this bill of particulars contained fundamental reasons why our union was born to prevent such use of central authority to do the kind of things that are enumerated in there.

This document was signed by South Carolina a 190 years ago was back here today with similar objections to similar use of central authorities, suspending legislatures, knocking down local voter qualifications.

David W. Robinson:

Now, we have not come to you lightly in the first instance.

We knew of overwhelming national concern to see that the Negro is given complete equality in American life today.

We fully understand that.

We know the administration.

We know your concern and if — we don’t object to that concern.

All we are saying here today is that the solution, the remedy, the solution to this problem like the solution to any problem has got to square with the command of the Constitution.

We think this problem can be solved by congressional legislation but not to these sections.

The remedy does not square with basic constitutional command, this is our position.

And we are here in the first instance before you, with the fundamental belief that the citizens of South Carolina are entitled to the same protections against the use of that central authority in such a way as the citizens of any other State in the Union.We appreciate your courteous attention.

Earl Warren:

Mr. McIlwaine.

R. D. McIlwaine, III:

Mr. Chief Justice, may it please the Court.

As an Assistant Attorney General of Virginia, I appear as one of the counsel for the Commonwealth amicus curiae in support of the positions taken by the State of South Carolina in the case at bar.

Specifically, the Commonwealth endorsed these two of the positions taken by the State of South Carolina.

First, the invalidity of the 50% formula provisions which governed the applicability of the Act; and secondly, the invalidity of the substantive provisions of the Act which abolished even racially nondiscriminatory literacy tests in the various States covered by the Act.

Now, various aspects of South Carolina’s position had been endorsed by different counsel from different other States which have supported the plaintiff in the case at bar.

And then an effort to prevent duplication of argument, we have undertaken to apportion certain of the aspects of South Carolina’s position for different emphasis by different counsel.

It is to the second contention of South Carolina which we support that I withdraw the Court’s attention in this case.

Particularly to what we believed to be the central and controlling issue in the case at bar, namely, the scope of the power conferred upon Congress by the Fifteenth Amendment as indicated by the legislative history of the framing and the adoption of that amendment.

In this connection, counsel for Virginia take the position that any impartial analysis of that legislative history will demonstrate beyond (Inuadible) that no power was conferred upon Congress by that amendment to alter, amend, suspend or abolish the literacy test requirement of any State or any other educational qualification placed upon the right to vote by any State.

And also, that the Framers of that amendment on three separate occasions by recorded vote specifically rejected attempts to insert in the Fifteenth Amendment just such a power.

As a result, the Voting Rights Act of 1965 constitutes in our view nothing more than an attempt by Congress to assert by legislation a power which was specifically denied in the constitutional amendment.

As approval to a consideration of this contention, we should like to note the Government’s concurrence in at least one aspect of our position and our concurrence in one aspect of the Government’s position.

This is embodied in two sentences.

The opening two sentences of the Government’s brief in its initial argument on page 26.

The Government says this, “In enacting the Voting Rights Act of 1965, Congress was unmistakably invoking its powers under the Fifteenth Amendment.

Whether it exceeded those powers and invaded rights reserved to the States as South Carolina contends, must be determined from an analysis of the scope of a grant and the nature of the reservation.

Byron R. White:

Mr. McIlwaine, let’s assume that a particular State, let’s assume Virginia passed a law providing for a literacy test for Negroes and provided no literacy test for whites, and Congress then passed the law suspended in that literacy test.

Would Congress be exceeding its powers for the Fifteenth Amendment?

R. D. McIlwaine, III:

So far as we understand it Your Honor, if the law did not apply equally to all what was tagged to race, just like a Grandfather clause to perpetuate a condition.

Byron R. White:

Congress couldn’t have the power.

R. D. McIlwaine, III:

— which existed prior to the induction of the Fifteenth Amendment, then Congress could — if not abolish it, could at least make it apply to all —

Byron R. White:

But could it apply, could — well, you mean it could itself write the — change the Virginia law, one way or the other, if he either abolish it or expand it.

R. D. McIlwaine, III:

Not so far as the literacy test is concerned.

We would take the position, Your Honor —

Byron R. White:

Let’s take the literacy test so that this old statute said that it — this literacy test applies only to Negroes.

R. D. McIlwaine, III:

No sir, we should take the position that the Fifteenth Amendment in and of itself just as the Grandfather clause in the Guinn case would abolish that statute, would render that statute in effective.

Byron R. White:

And consequently, Congress could have passed a law that —

R. D. McIlwaine, III:

That consequently there would be no need for Congress to enact any law.

Byron R. White:

Well, they might want to make it a crime or someday might just want to abolish it.

R. D. McIlwaine, III:

I do not think they could make it a crime Your Honor, under the second section for a legislature of any State to enact a statute.

If the statute offends a provision of the Constitution as the statute that you suggest would offend the Fifteenth Amendment just as the Grandfather clause cases, then the Act would have no validity.

And I do not think it would fall within the power of Congress to undertake by statute to make that requirement, anymore than as I say the Grandfather clause cases in which the scope of the amendment has been considered.

That if a law would apply to make —

Byron R. White:

Well, I take it — I take it then you would say that consistently with your argument that Congress could not pass the law suspending the operation of the Virginia statute which applies under the —

R. D. McIlwaine, III:

That is correct, Your Honor.

We take the position of the first section of the Fifteenth Amendment would abolish it by its own force, so appropriately all on the glory and that Congress could not pass the statute making it an offense.

Byron R. White:

But you would say that did — that just on its face that did violate the Fifteenth Amendment.

R. D. McIlwaine, III:

I would say under the Guinn decision that such statute applying only to Negroes and not to whites as I understand Your Honor —

Byron R. White:

Not the Fourteenth Amendment — the Fifteenth.

R. D. McIlwaine, III:

The Fifteenth Amendment, yes Your Honor.

It would be exactly as it is.

Byron R. White:

On its face.

R. D. McIlwaine, III:

— as the racially — key of Grandfather clause.

And it would violate the Fifteenth Amendment per se under the scope of those decisions.

Byron R. White:

Just like a literacy test of general applicability supposedly that one that is discriminatorily applied regularly that that would violate Fifteenth Amendment too.

R. D. McIlwaine, III:

No sir.

If it is discriminatory applied we then reach an area in which Congress would have power to legislate, to enforce the prohibition of the Fifteenth Amendment —

Byron R. White:

If —

R. D. McIlwaine, III:

— and the scope of its legislation would then come under consideration.

But if the literacy test were fair on its face and applied to all, it would not violate the provisions of —

Byron R. White:

Oh no — no, no.

No.

R. D. McIlwaine, III:

— the Fifteenth Amendment and could not be suspended under the second section.

So far as the Government’s position as we return —

Earl Warren:

We’ll recess now McIlwaine.

R. D. McIlwaine, III:

Yes, Mr. Chief Justice.

Mr. Chief Justice, thank you sir.

While we concur with the Department of Justice, and they with us that the appropriate disposition of this case requires an analysis of the scope of the grant of power to Congress under the Fifteenth Amendment, this also forms our point of departure.

But we then contend that the first place to look to determine the scope of this grant is to read the 46 words which comprised the Fifteenth Amendment in its entirety.

And thereafter, the principal source by which to determine the scope of the grant is the legislative history of the framing and the adoption of that amendment.

This second point, the Justice Department passes by without comment or counterargument in their brief.

Now, we take it as fundamental that this Court’s duty is to construe, not to rewrite or to amend the Constitution as was stated by Mr. Justice Goldberg in Bell against Maryland, a proposition concurred in by both the majority and the dissenting opinion.

And as Mr. Justice Goldberg said on that occasion and we used this expression of it simply because it is recent and because we think it forcefully puts the proposition for which we contend, our sworn duty to construe the Constitution requires however that we read it to effectuate the intent and purposes of the Framers.

We must therefore consider the history and circumstances indicating what the Civil War Amendments were in fact designed to achieve.

Now, this, the Commonwealth of Virginia had done, and it has included that history in an appendix to its brief.

We take the position that this legislative history shows as clearly as anything can be that the scope of the authority conferred upon Congress was the power to prohibit discrimination on account of race, color or previous condition of servitude and left absolutely unaffected the power of the States to prescribe any of the qualification upon the right to vote, specifically, it left untouched the power of States to proscribe literacy and educational tests upon the right to vote.

Potter Stewart:

Supposed Mr. McIlwaine it was clear and as I gathered from scanning your appendix before this argument, it was made clear that if the former slave States had put in literacy test at the time of the enactment of the ratification of the Fifteenth Amendment and write — and thereafter — immediately thereafter, the very fairest kind of an application of such literacy test would probably have effectively disenfranchise to something like 95% or 98% of the Negro potential voters, would it not?

R. D. McIlwaine, III:

That is the suggestion that was made, Your Honor.

That it would disfranchise sometimes, somebody said 50%, some said 99%.

But that if it was done, it would constitute no violation of either the letter or the spirit of the Fifteenth Amendment.

This is exactly the point that was made by those who objected to the limited language of the Fifteenth Amendment.

It originated — I beg your pardon.

Potter Stewart:

You go ahead, I just —

R. D. McIlwaine, III:

It originated as a proposal of the House Judiciary Committee and as you issued forth from that committee, it was substantially as the Fifteenth Amendment now reads.

Objection was made to it, on this ground by Mr. Shellabarger of Ohio and by Mr. Bingham of Ohio.

And I submit that when we reached Congressman Bingham, we have reached a source that is entitled to great consideration for in his dissenting opinion in the Adamson case, Mr. Justice Black characterized Congressman Bingham as the matters of the first section of the Fourteenth Amendment.

He was in Congress at all times during the debate on the Fourteenth and the Fifteenth Amendment and he pointed out as clearly as could be that under the Fifteenth Amendment as proposed by the House Judiciary Committee, it would be perfectly competent for the States to disfranchise any and all classes of citizens they may wish to do so provided they did so with a literacy test or a property qualification applicable to all.

On this point, Mr. Bingham said and we have set it out on page 4 of our appendix, these three items, race, color and previous condition of servitude are the only terms of limitation in it.

And hence it is manifestly true that this power remaining in the States in no other manner fettered by the proposed amendment may be exercised to the end that an aristocracy of property may be established and aristocracy of intellect may be established.

This language echoed that of Mr. Shellabarger from Ohio who said that under it, it leads the discriminations of the States and that these discriminations may be made on the score of either intelligence or want of property or any other thing than the three things enumerated in the proposition.

R. D. McIlwaine, III:

Now, Mr. —

Earl Warren:

As I understand the (Inaudible).

R. D. McIlwaine, III:

I am not aware of it, Mr. Chief Justice.

I do not deny that it may have been, yes Your Honor.

Earl Warren:

How come that it’s — those records (Inaudible)?

R. D. McIlwaine, III:

I think this is true, Mr. Chief Justice, without knowing specifically about the existence of the laws to which you refer because those who objected to the limited form of the Fifteenth Amendment pointed out that for years, both southern and northern states had deprived the Negro of education, had robbed him of his property and that therefore, he had been reduced to this condition and yet he could still be disfranchised for want of education, want of literacy and want of property even though his status in both northern and southern states was due to the manner in which he had been treated for two centuries in this country, yet he could still be disfranchised by a literacy test.

And Senator Charles Sumner of Massachusetts said, in effect, this makes no difference if the qualification, education, literacy or property is one which is attainable, if it is within the reach of a well-directed effort by colored citizens or by Orientals who were the chief concern of the senators from the West Coast, then it is a proper qualification.

And despite the fact, that the condition of the Negro in this country had been brought about as the radical republican said by the activities of the white citizen both in the north and the south, yet under this limited amendment they could be disfranchised by a literacy test which applied equally to all.

And that was the purpose or the specific ground of their opposition to the limited Fifteenth Amendment, Mr. Chief Justice.

They proposed instead, both Mr. Bingham and Mr. Shellabarger, the universal manhood suffrage proposition, which would have said that no state should deny to any male citizen, 21 years of age or upward and of sound mind, the right to vote if he has resided in the State for one year under Mr. Bingham’s proposal, under Mr. Shellabarger’s proposal if he has resided in the State for the length of time prescribed by state law.

Now these propositions were voted down by more than two to one vote in the House.

And the proposition to insert in the Fifteenth Amendment, in addition to race, color and previous condition of servitude, property and education was also voted down.

And thereafter, the House passed the Fifteenth Amendment in the form in which we now find it.

If they — and the Senate opened on this resolution as settled from the House, and once again, objection was made to it and it was castigated on all side by those who said, under it — the southern states as well as the northern states may disfranchise any people they wish, any class of people, by use of a property qualification or an educational qualification so far — so long as it applies equally to all who make application to vote.

Mr. Warner and Mr. Morton, or Senator Warner and Senator Morton, both republicans, made the same type of statements that Mr. Bingham, Congressman Bingham and Congressman Shellabarger had made in the House.

Mr. Warner’s statement is especially forceful.

It set on page 8 of the appendix, it is to this effect.

The animus of this amendment is a desire to protect and enfranchise the colored citizens of the country.

Yet, under it and without any violation of its letter or spirit, nine-tenths of them might be prevented from voting and holding office by the requirement on the part of the States or of the United States of an intelligence or property qualification.

The objection to the limited amendment was that it would not protect anyone from the requirement of a state prescribed literacy test, property test, nativity test, religious test or any other test, so long as it was not race, color or previous condition of servitude.

This limited scope of the amendment so angered Senator Wilson of Massachusetts that he proposed an amendment which would have added to the specific grounds banned by the Fifteenth Amendment, not only race, color and previous condition of servitude but also nativity, property, education and creed.

He proposed an amendment to the House version which would have added these four specific realms as grounds upon which a state might not disfranchise its citizens.

This proposition actually carried in the Senate and that version in which — which would have authorized Congress to pass legislation enforcing a ban against literacy and educational qualifications was sent from the Senate to the House.

The House by a lopsided vote of a 133 to 37 refused to concur in the Senate amendment and called for a conference committee.

The Senate would have no part of a conference committee because of the objections stated by Senator Buckalew of Pennsylvania who warn the Senate that in these matters, the House of Representatives always insist that its particular view shall prevail and in nine-tenths of the cases they have their way.

If we send this to a conference committee, what we’re going to get back is the limited House version and not the version as amended by the Wilson Amendment.

As a result, they refused —

Earl Warren:

(Inaudible)

R. D. McIlwaine, III:

Yes sir, if they apply equally to all citizens.

Earl Warren:

(Inaudible)

R. D. McIlwaine, III:

The most valid evidence in the world Mr. Chief Justice, because it abolishes Virginia’s literacy test which simply requires people to fill out a form to vote.

It is the most nondiscriminatory literacy test that can possibly be imagined even —

Earl Warren:

(Inaudible)

R. D. McIlwaine, III:

No sir.

I think that when you have a statute of the Congress of the United States which says, in any State, Virginia or any other State that a state statute which says in order to be able to vote, a person must fill out an application form in his own handwriting.

That Congress has no power whatever under any circumstances, whatever to abolish that test, because that is an education test, it is not within the authority of Congress to abolish or suspend it or order it or amend it.

Earl Warren:

(Inaudible)

R. D. McIlwaine, III:

How discriminatorily it may be applied, yes Your Honor.

The statute is still perfectly good and Congress cannot suspend it.

Now, if Congress finds that there has been discrimination in the administration, are they perfectly valid test?

Then the Congress may take action under the Fifteenth Amendment to end the discriminatory application, but Congress in so doing does not touch the qualification to vote.

This is what is reserved to the States.

This is what the Constitution of the United States confirms to the States.

In Article I Section 2 and in the Seventeenth Amendment passed subsequent to the Fifteenth Amendment.

The qualifications to vote for members of Congress are the qualifications established by state law and no statute enacted by Congress until now and no statute which Congress could ever enact under the Fifteenth Amendment can vary nondiscriminatory educational qualifications.

This is the power which it was specifically attempted to confer upon the Congress.

Indeed, it was a power which the — a certain Framers of the Fifteenth Amendment sought to write into the amendment per se, so that all literacy test would be abolished by the sheer forces of the Fifteenth Amendment and all property qualifications abolishment.

But in cases that from the point of this Court, since then, particularly Myers versus Anderson, a requirement that a voter must own $500 worth of property was sustained by this Court and the Court said, it makes no difference how this qualification applies in actual practice, that is the percentage of people who may or may not be permitted to vote because of the $500 figure?

The figure itself is nondiscriminatory and it cannot be attacked on the ground of the motive for which it was inserted or its practical operation in effect upon any class of voters.

It is a power within the scope of the States under the Article I Section 2 in the Tenth Amendment and it is not within the scope of authority under the Fifteenth Amendment which has been granted to Congress.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

Yes sir.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

That is precisely my view, Mr. Justice Black.

Hugo L. Black:

That’s specifically what has been made —

R. D. McIlwaine, III:

That is where we’ve —

Hugo L. Black:

— do you think?

R. D. McIlwaine, III:

Yes, I think so.

And we start with this proposition that out of Section 2 of Article XV says “Congress shall have power to enforce this Article by appropriate legislation.”

It does not have power to enforce the Fifteenth Amendment as it was not adopted.

R. D. McIlwaine, III:

It does not have the power to enforce a prohibition against literacy test which was not given to them under the Fifteenth Amendment.

It does not have that power.

This proposition which you put sir, that Congress should come to the conclusion that people are being discriminated against because of property qualifications, and educational qualifications, and they operate upon one class to exclude more of that class than they do of another, more colored people than they do white people, more Orientals than they do colored people, all white people.

This was known to the Framers as being an objection to the limited scope of the Fifteenth Amendment.

They understood that that might happen and that there was nothing in the Fifteenth Amendment or under the second section.

Hugo L. Black:

Under the amendment’s powers?

R. D. McIlwaine, III:

Yes sir, or that the Congress would had any power to deal with it.

Hugo L. Black:

Where can you find this in your (Inaudible)?

R. D. McIlwaine, III:

Well this is in the latter sections of our history, Mr. Justice Black, to which we would refer you pages 40 — I beg your pardon, page 34 to 45 of our brief during the congressional debates on enforcement legislation where it clearly appeared that Congress would have no power.

Hugo L. Black:

Do you think it (Inaudible)

R. D. McIlwaine, III:

But Your Honor, you’re assuming that a literacy is discriminatory.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

I mean —

Hugo L. Black:

What?

R. D. McIlwaine, III:

— because of the way — I mean, do you not put the proposition that Congress finds.

Hugo L. Black:

The Congress doesn’t find this is the only way (Inaudible)

R. D. McIlwaine, III:

If —

Hugo L. Black:

I’m talking about if it could include that’s the only way that the Congress has (Inaudible)

R. D. McIlwaine, III:

Yes sir.

Well this —

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

Well, we arrive at that proposition by this course, Your Honor.

Congress is protecting the right to vote.

Protecting it against what?

Congress is authorized by the Fifteenth Amendment which is the sole constitutional provision upon which the Voting Rights Act of 1965 has rested.

Congress is authorized to protect the vote from discrimination on account of race, color or servitude.

It is not authorized to enfranchise either Negroes or Orientals or illiterates —

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

— simply because it would enlarge the electorate.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

To enforce this article, Mr. Justice Black —

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

That’s correct.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

That’s right, not the right — not to be discriminated against on the grounds of illiteracy.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

Against discrimination on the grounds of race, Your Honor.

If the two things can be brought together, and I submit that there is no possible way in which a state which applies a literacy test applicable to everyone which this Court unanimously approved in Lassiter against Northampton County.

And said, this is a perfectly valid —

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

No, see you’ve sustained it as not being valid with the Fourteenth or Fifteenth Amendments, so that — we do not have discrimination by virtue of a literacy test.

A literacy test only discriminates against the illiterate, if it is applied to all.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

But if at that time the Framers adopted the Fifteenth Amendment Your Honor, they foresaw this possibility that Congress would have or would not have power under the second section to abolish state literacy test and deny that that power was in the Fifteenth Amendment.

We respectfully submit that this Court cannot at this date write it into the Fifteenth Amendment as a matter of interpretation.

To do that, it would in effect supply the missing votes for the Bingham and Wilson proposals.

And it would give —

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

I beg your pardon?

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

Section 2 authorizes Congress — if Your Honor please to pass anyone of a number of laws to provide for the fair administration of state prescribed qualifications to prescribe all sorts of investigations which have been undertaken under the Fifteenth Amendment to make it an offense for any person to deny a person the right to vote on account of his race or color.

The numerable collateral things which the Congress can do under the Fifteenth Amendment, but it cannot reach state prescribed literacy qualifications.

It cannot alter those qualifications under the Fifteenth Amendment.

Hugo L. Black:

(Inaudible)

R. D. McIlwaine, III:

All that Congress can do in that case Your Honor as we submit in our brief is to provide for the even-handed application of the nondiscriminatory criteria.

It cannot suspend the criteria.

We have suggested in our brief, Your Honor, what we believed to be the simplest possible method of doing it and the most effective.

And that the statute of applicable throughout the length and breadth of the United States that whenever in any political subdivision anyone alleges in the Federal District Court that he’s been denied the right to register and vote on account of his race or color, the District Court shall hear the case, make a finding, if he finds that there has been discrimination, he can appoint an examiner and the examiner can sit and be administer the state prescribed qualifications under the Office of the District Court and register anybody he wants to.

That’s the way to protect it, that’s even-handed application of state prescribed qualifications which within the scope of the Fifteenth Amendment and leaves the reserve filed to the States on attachment.

Thank you sir.

R. D. McIlwaine, III:

I beg your pardon Mr. Chief Justice.

Earl Warren:

(Inaudible)

Nicholas Deb. Katzenbach:

Mr. Chief Justice, may it please the Court.

My 30 minutes is going to be devoted to the triggering clause.

We did not cover that in our brief because at the time that we file these particular briefs, or rather after we filed these particular briefs, we — all of these were met and decided that each State would take a portion of argument in order to give our views to the Court as intelligently and as possible.

And it’s therefore my task to discuss the triggering clause which puts into effect the application of the Voting Rights Act of 1965.

Which of course is found in Section 4 (b) that that shall apply in any State or in any political subdivision of a state which the Attorney General determines maintained on November the 1st, 1964 or that less than 50% of such persons voted in the presidential election of 1964, provided of course that it had a test or device known as the literacy test.

Now, in our State, the Attorney General determined that Louisiana maintained the test or device as defined in the Act.

I might say that U.S. versus Louisiana has been reconstructed.

The Government filed a suit in a three-judge court in the Eastern District of Louisiana, number 2866, some time ago in which it sought certain temporary restraining orders against actions of state individuals and registrar, the pleasing of these names that the federal examiner certified on the roles only to the extent that those were — who absolutely unqualified to vote according to state law and according to this Act such as felons and so forth and people having the proper residential requirements.

Of course, we consented to being joined, the Government, the Board of Registration has dropped and myself and several district attorneys were added as defendants.

Now, we consented to the action and we challenged the constitutionality of the Act in that proceeding.

And the reason I’m mentioning that to you is to bring out a point that I want to make that the determination of the Attorney General is final and not subject to a review by court.

But then when he makes this action which puts the trigger to work, now there is some thought by some people that in four — in the other sections of the Act that a state could come to the District of Columbia as Mr. Robinson mentioned.

But when this Act is triggered and a state is found to be under this particular formula, you have no legal recourse from the determination of either the Director of the Census or the Attorney General.

And if you come to court in the District of Columbia, you’ve got to first challenge the constitutionality of that before you can go into your five-year provision or any other feature of the Act that that forum affords you if it does afford you that particular relief.

Potter Stewart:

I don’t think —

Nicholas Deb. Katzenbach:

Yes sir.

Potter Stewart:

I don’t understand that point.

You’ve told us that as the Act indeed explicitly provide that there is no review whatsoever of the certification of finding by the Director of the Census or by the Attorney General.

Nicholas Deb. Katzenbach:

That’s correct.

Potter Stewart:

But now — why do you first have to attack the constitutionality of that before you can invoke the other (Voice Overlap) of Section 4?

Nicholas Deb. Katzenbach:

Because I don’t think that the Acts — the Act says in 4 (b) that there’ll be no judicial review.

Potter Stewart:

Yes.

Nicholas Deb. Katzenbach:

But yet, you’ve given the remedy of coming to the District Court of Columbia on certain other facets of the case, but that is the plan as to whether that procedure has afforded you, not the way I understand it.

In other words, I think that we’ve have to come in, say if Louisiana filed a suit and unless we’re successful in this eastern district case, we’ve challenge it that we do that to come under the Act.

In order for us to do it, we’re going to have to say in my opinion that that portion of 4 (b) which says is not subject to judicial review is that ex post facto in nature and is unconstitutional and that the courts do have the right to review the finding of the Attorney General or the Director of the Census.

Potter Stewart:

That’s cer — (Voice Overlap)

Nicholas Deb. Katzenbach:

That’s the point I’m trying to make (Voice Overlap) —

Potter Stewart:

— they’ll certainly be entitled to make that claim.

Potter Stewart:

I just —

Nicholas Deb. Katzenbach:

Yes.

Potter Stewart:

— didn’t understand why he’d be required to make that claim in order to get to the other.

Nicholas Deb. Katzenbach:

Yes.

Now, we stipulated the Government and the State of Louisiana, rather the Attorney General of Louisiana, I’m the defendant in that suit and Attorney General Katzenbach is the defendant here.

But we’d determined — the parties determined that Louisiana did maintain a test or device in a stipulation.

And it was readily admitted that more than 50% of the persons of voting age residing in Louisiana were registered on November 1st, 1964.

And we have stipulations to that effect in the record in that case.

The Director of the Census, however, determined that that applied to Louisiana because less than 50% of the voting age resided — residing in Louisiana voted in the presidential election of November 1964.

Now, in making that determination, the Director of the Census determined that on November 1st, 1964, Louisiana’s adult population was a 1,000,893 persons and that 896 persons voted for president in the presidential election on November 1964.

This was also stipulated.

Louisiana’s voting percentage in that election, therefore according to that formula was 47.3.

Now, we proved in this case that the Director of Census was entirely erroneous, because 942,226 persons actually voted in the presidential election of 1964, but there were 45,963 persons that voted in the election that did not cast a vote for presidential counting.

Now, I say that that’s an absurd conclusion which this Act does not authorize because it says, voted in a presidential election, it doesn’t say that you have to vote for president.

It doesn’t say you have to vote for vice-president, it just said voted in the election.

And there were 45,900 people who didn’t choose to vote for a presidential candidate but voted for senator, congressman or whatever was up for election in the general election of 1964.

So — and this formula that I’m giving to you here applies to all the States in question.

But in determining the number of persons of voting age residing in Louisiana on November 1st, the Bureau of Census included adult military personnel stationed in Louisiana who actually were from other states.

He also included convicted felons confined and at large on that date who are not restored to the right of suffrage.

And he also included persons in past prisons and inmates charged with executions who cannot vote if they so incurred.

On November 1st, there were 3200 persons confined to our state penitentiary, who had lost the right of franchise of course.

There were 5093 adult convicted felons on parole or probation.

There were 50,000 convicted felons roaming around Louisiana who hadn’t been restored to citizenship.

And of course, we prove this in this case.

Now, in November the 3rd, 1964, in addition to the above persons in the penitentiary and so forth, there were 2338 persons confined in parish prisons throughout the State.

There were 8539 persons who are inmates in state charitable institutions, not including charity hospital in New Orleans.

There were 18,000 Louisiana persons serving in the Armed Forces.

And there were 31,000 military personnel from outside the State stationed in military post in Louisiana, and that of course is in the record in that lawsuit.

On November the 1st, 1964, there were 312,000 or so illiterates ineligible to vote in Louisiana and we passed a constitutional amendment in 1960 which prevented the illiterates.

But at the time we froze on to the rules, those illiterates who were then registered and it’s interesting to note that we froze in on the registration rules over 20,000 white illiterates and over 13,764 Negro illiterates.

Nicholas Deb. Katzenbach:

So there were 44,000 persons, therefore, in Louisiana not possessing the necessary residential requirements for voting.

And there were 20,101 females, to use an expression from Shakespeare, bastardizing females who were ineligible to vote because under our law and under our Constitution, unwed mother with bastard child is ineligible to vote.

There were 29,400 persons convicted of misdemeanors and who are ineligible to vote for a short period of time.

Now, the Voting Rights Act contemplates registration in voting and necessarily speak only of persons eligible to register the vote.

And when this Act, of course the persons of voting age residing in Louisiana, it obviously means persons eligible to vote under Louisiana law.

In two other places in the Act between qualifications prescribed by state law is referred to.

Coming back to my statistics, there were 31,000 persons serving in the Armed Forces stationed in Louisiana on November 1st, 1964 but there were only 18,000 citizens of Louisiana who were serving in the Armed Forces in Louisiana and all over the world.

According to the Department of Justice, now that the proper votes has been counted, Louisiana voted 49.5 of the population as determined by the Director of Census.

And this is a record in the suit I’m speaking about.

Louisiana missed voting 50% by 4000 votes according to the Department of Justice.

Now, I submit — I submit that if a number of Armed Forces personnel were corrected, if the felons who couldn’t vote for our county, if those in charitable hospitals were considered, and if any of these factors were determined according to the true facts, which we submit the Department of Justice and the Census Bureau did not determine, then Louisiana voted far in excess of 50%.

In fact we had a demographer of Tulane University who we’d qualify as an expert, testified that it was in excess of 70% that voted in the presidential election of November 1964.

Now, the Attorney General, I’m sure in all sincerity told the Congress that the number of the Armed Forces personnel outside the state, those serving inside the state would not affect the percentage of adult persons voting in Louisiana.

And therefore, there was no need to amend the bill or to delete these persons.

And of course, the reasons that the Attorney General told Congress this, was because he was unaware at that time of the fact that the Bureau of the Census had miscalculated the vote in Louisiana by over some 45,963 persons.

Potter Stewart:

Is there any question about the percentage of your registered voters among the —

Nicholas Deb. Katzenbach:

No, Your Honor.

No, we have no question about the registration.

Potter Stewart:

What’s that percentage around?

50?

Nicholas Deb. Katzenbach:

No, it’s about 52 or 53, Your Honor, thank you.

Potter Stewart:

That’s not an issue, is it?

Nicholas Deb. Katzenbach:

There’s no issue as far — the only thing that brings Louisiana into that and most of the other States that is involved here who are not named in this particular Act that who said they will put in as a result of this trigger.

Potter Stewart:

Is the voting (Voice Overlap) —

Nicholas Deb. Katzenbach:

It’s the voting percentage, did you understand?

You see Texas doesn’t have any literacy test but — unless that its population voted but they’re not under the Act because they have low test.

And that of course is one of the fallacies in this triggering business.

Let’s take in the State of South Carolina or in Louisiana for that matter.

We’re guilty — we’re presumed guilty of discrimination by Congress if less than 50% of our people vote.

And of course, South Carolina, the Department of Justice both said that there’s no discrimination in South Carolina.

Nicholas Deb. Katzenbach:

Alright, let’s suppose that there is widespread discrimination in South Carolina and in the general election of 19 — November 1964, South Carolina votes 90%, therefore she’s not under the Act.

And that is one of the inconsistencies of the trigger formula.

Byron R. White:

If there was widespread discrimination, 90% of the eligible people wouldn’t be voting.

Nicholas Deb. Katzenbach:

But suppose it happened.

It could very well happen.

And I submit to follow up on that particular point, what Mr. McIlwaine said.

The authority to stop discrimination presently exists in the Civil Rights Act of 1964.

It was placed in the courts where it properly should be done and properly should be handled.

But this Act does one thing, that’s not fast enough.

The judicial process is not fast enough, it takes the matter of discrimination, its determination and its judicial determination which in the way from the courts and puts it in the hands of the Department of Justice through the use of federal examiners.

And that is the whole key, that’s the whole nutshell I argue here with.

Byron R. White:

Mr. Attorney General, do you have — do you recall whether there was any great difference between the vote in your primary and in your general election in 1964?

Nicholas Deb. Katzenbach:

Oh yes, definitely.

Yes.

Byron R. White:

What were the figures, do you know?

Nicholas Deb. Katzenbach:

I would — do you agree with all of that?

I would say it’s about 78 — no, I know what it is, it’s a little over 80% voted in the democratic primary.

You see our republican primary and democratic primary are at the same time.

And we’re an overwhelming democratic state and I think about 80% of those eligible to vote participated in the primary.

Byron R. White:

In both primary?

Nicholas Deb. Katzenbach:

In — well, they conduct it at the same time.

Byron R. White:

Oh, I know.

So you — but your 80% is —

Nicholas Deb. Katzenbach:

80% was in the primary, yes.

Byron R. White:

In both parties?

Nicholas Deb. Katzenbach:

Yes.

That’s — they’re just conducted in one and the same time.

That’s all by 80%, little over 80%.

One funny thing about this, we’ve got about — I think 13,000 people would put on the rules as a result of the five examiners that we have.

It’s very interesting to note that 99.99% all are registering democrats.

Nicholas Deb. Katzenbach:

An evident that people don’t like to register as republicans in Louisiana, although republican candidate carried the election.

So this Act is going to — this Act isn’t going to cure that because all these people that are voting, still votes the democratic primary.

Now we are still going to have this lackadaisical apathetic approach to voting the general election.

Byron R. White:

Well, how about the general, what percentage voted in the general?

Nicholas Deb. Katzenbach:

Well, 49.5.

Byron R. White:

49.5 and there —

Nicholas Deb. Katzenbach:

49, with Your Honor, let me answer that correctly.

49.5 voted according to the determination of the Justice Department and the Census Department.

Now, we submit that it would be accounted all of the factors that they should’ve known it and that’s one of the inconsistencies of the triggering clause, no formula was established on how to determine these people other than the discretion of the Attorney General and the Department of Justice.

And if they had counted it correctly, we would have had over 70% participating, and all the 70% did actually do it but we’ll only get credit to 49.5.

Byron R. White:

But the 80% that you — that 80% is figured the way you figure it.

Nicholas Deb. Katzenbach:

Yes —

Byron R. White:

But the primary not —

Nicholas Deb. Katzenbach:

Active participation, yes.

That that —

Byron R. White:

What did you figured that the way that — you’re the — but you did?

Nicholas Deb. Katzenbach:

It would still be way over 50%.

Byron R. White:

What would it be, 70 or?

Nicholas Deb. Katzenbach:

At least 60 to 70%.

But there’s no other way you can figure it because felons and persons who do not restore their citizenship can’t vote.

That hadn’t been destroyed by this Act of Congress.

But of course, the enactment of other laws had certainly been stopped.

Our judicial process as Mr. Robinson pointed out had been stopped as a result of this triggering clause.

We, in Louisiana, if we wanted to say now that all persons in Louisiana who 18 years of age would be eligible to vote, we wanted to pass a constitutional amendment to that effect.

We have to come to the Attorney General and say, “Mr. Attorney General is this alright?”

He’d have 60 days to think it over.

He didn’t reply, you could go ahead and do it or you could come to Washington again, in the District Court of Columbia to submit your plan.

And then if the court approved that, then you could go back to Louisiana and pass your legislation.

I think that that’s totally inconsistent with our Constitution because I don’t think Congress ever intended that the right to regulate elections would be taken away from the various legislatures.

And I submit again, that this only happens to the few States who were caught in the trigger, South Carolina, Georgia, Mississippi, Alabama and Louisiana.

Nicholas Deb. Katzenbach:

And I don’t think that this Act was adopted by happenstance let’s say.

The Attorney General quite frankly conceded during the hearings that if this trigger formula hasn’t worked out to catch those that he knew were discriminated that he had device some other system.

That’s in the record, so that was evidently an obvious attempt on the part of Congress to get these particular States that the claimed was discriminating.

And let me say this here and now.

We’ve had a lot of lawsuits in my state between the Department of Justice and the Attorney General in our office —

Byron R. White:

You’d have about 30 or 40 haven’t you Mr. Attorney General?

Nicholas Deb. Katzenbach:

In one of these cases, you ask questions to Louisiana.

The federal court said to 21 registrars, you’ve been using this literacy test to discriminate.

Now, we don’t say that you don’t have the right to have a literacy test but we say you keep discriminating with the use of this test.

And you submit me a report every month, telling me how many people have been registered and whether you use the test and whether you applied the test to everybody.

Now, we’ve got 21 registrars of voters in Louisiana who report to the courts monthly.

Telling them, how they had been running their offices and then we have other suits that found discrimination to exist.

Even in Plaquemines Parish, the registrar there has been reporting to the court for 31 months.

And in fact, the courts have actually been operating at least half of our parishes or maybe a third of our parishes by court order under the Civil Rights Act of 1964.

Byron R. White:

And this is the —

Nicholas Deb. Katzenbach:

But this Act — yes, Your Honor?

Byron R. White:

You say that’s the way you think it ought to be.

Nicholas Deb. Katzenbach:

Well, certainly.

That’s what courts have thought under our system of separation of powers.

There was never any intent on the Framers of our Constitution on anybody, to just turn over or overturn it to the Attorney General the discretion of running registrar’s offices in the various States.

Now, let me give you just a little example of how far that’s gone.

Just the other day, Mr. Doar wrote me a letter by which the Attorney General of the United States had set out to all of the registrars in my parish.

And it’s a very nice letter and it goes on down here and it says, compliance has been fine, everything is going long good, everybody’s happy.

Then he says, number one, have all practices which delayed to discourage the registrations that abandoned.

And then a new practice has been adopted which tend to discourage registration of potential voters.

Now, as a registrar, he would determine who a potential voter is.

What identification requirements are being used?

Are the procedures being used more onerous than those which were used in registration of white citizens in the past?

Are citizens who seek to qualify to vote being treated fairly and courteously?

What law says that the registrars got to be courteous to anybody?

Nicholas Deb. Katzenbach:

He says, he’s got to be fast, sure in registration but I don’t have to say good morning, how are you doing, anything like that when I come in to register to vote.

But the Attorney General wants my registrars to do that, then we’ve come down here a little further and he says, finally in conducting registration, it makes good sense to be open during longer hours or during some evenings or on Saturday.

Our legislature prescribes the time that the registrar’s office will be open and where it would be located.

And that’s been upheld in the case of United — I forget the title, but the Gallinghouse case, Judge Elis in the eastern district who since retired said that the registrar has got to file a state law and he’s got to conduct his office of registration where the law provides.

Namely, the county ceded the facts in which this case is New Orleans which I understand everybody in which it’s got a beautiful setup down there.

And then he goes on, to be open during long hours or during some evenings or on Saturday or to employ extra place.

Now, here as the Attorney General of the United States telling us we’ve got to hire extra place, appropriations for this matter, comes from the police juries or the Board of Supervisors, whose going to pay for that?

But to hold registrations in each polling places and each municipality, then I believe you should do so, if that’s not a clear mandate from the Attorney General to tell our registrars how to operate their office and how to operate and operate in contrary to Louisiana law, which we can’t change unless we come up here to the District of Columbia and voluntarily bring our witnesses.

If a witness doesn’t want to come, we can’t make him come because this is more than a 100 miles away.

So I said, when you considered all these States, you considered this triggering clause that the particular States involved were pit out because they wanted to put all these people, everybody on the rules.

Let me show you a little something here.

California’s got a literacy test.

They got over half a million illiterates in California possibly because they got more people than any State in the Union.

And these people can’t vote in California but they can vote in Louisiana under this Act or they’re being discriminated against.

And this Act doesn’t help them because the date of the formula is November 1st or the presidential election of 1964, that’s the cut-off date.

Those that are not affected, Massachusetts’ interveners in amicus curiae and so as New Jersey and several other States.

They’re not affected by this Act, how can it concern them?

What’s their interest?

They have no interest.

It doesn’t apply to them at all.

Let’s take Idaho.

Idaho is (Inaudible) on illiterate ground.

He can’t vote up in Idaho because of this formula because of this triggering clause.

That he could come to Louisiana and after serving the requirement of that time, he can vote in Louisiana.

That’s why we say it’s an act of discriminatory.

That that was the standard that doesn’t apply to everybody and actually discriminating because the only people affected, the only people would ever do it is five or six States involved and of course the last would just have to get caught within that and some couple of county didn’t in Maine and Arizona and Idaho, just happened to get caught that they would like to vote — the people of the county.

Now, I say to Your Honor that five years from our time is awful good.

I think it’s an issue of special legislation and that this legislation which already existed by act of Congress.

Here, we have nothing but shortcut to make it go faster, faster and faster and faster.

Without a resort to the Congress for registration procedures, without the result in the court being conventional or arbitrary over this.

Nicholas Deb. Katzenbach:

This is not only to decide in which — which essential.

Let me tell you something by this Court.

Do you criticize us when you hear a lot of crimes, you had the right to criticize, you’re wrong.

But I have great faith in this Court because I believe that in the final hour, this Court’s wanted to do its duty and this Court is going to find that Congress cannot take over the judiciary which he’s doing in this particular legislation.

And no one can say as we said in our brief that you’ve been dragging your feet because you haven’t done it.

You’ve been on top of these cases, like a powerful — chasing the burden, and you should have been.

You’ve done a good job.

Let’s continue to do this job.

Let’s run this country according to the Constitution.

Thank you Your Honor.

Let’s run this country according to the Constitution the way it should be, not just one part of the Constitution but all of it, consider the gaps.

I’d say this, the legislation is genius.

It was designed for the sake of people.

We got caught if it’s for the defendant names, places, they’re not constitutionally on its face but I ask you Your Honors (Inaudible) rectify these injustices, this is to be done in Court where it should be.

Thank you.

Earl Warren:

(Inaudible)

Attorney:

Chief Justice, may the Court please.

It’s a privilege to be here — here and what I conceived that these rights side of litigation over an Act which will deeply affect the fundamental rights of the government, the State, the individual level and which if allowed to stand is the ultimate destruction of our Constitution and to our dear government.

I also like to show the sanctions of our brief under the Supreme Court rules to this Court define for argument.

Isaac Walton once said that doubtless God could make a better berry, and a strawberry, doubtless God had not.

Today, I can say that doubtless, Congress could enact worse legislation in the Voting Rights Act but doubtless Congress had never enacted anything more flagrantly on the Constitution.

Our argument relates to the denial of free access to the court, the invasion and denial of equality of people and unlawful delegation of power.

Section 14 (b) of the Act, restrict suits for declaratory judgments and injunctions against the execution or enforcement of the Act solely to the District Court for the District of Columbia.

Under Section 5 of the Act, no legislative changes before the qualifications of statutes in an affected state maybe effective until permitted by judgment of the District Court of the District of Columbia.

In effect, the states, individual voters, the rights or debates are diluted; election officials and others are denied free and reasonable access to the court.

Free access is obviously denied and that all litigation must proceed to one judicial courtroom, just to elaborate tort condition to rest doesn’t mean it’s an ingress or egress.

In our case, the congressionally conditioned States have got a one shot access to enjoin improper enforcement of the Act or to obtain declaration of the unconstitutional applications of the Act.

Although the statute Article III Section 2 of the Constitution giving this Court the racial jurisdictions of certain actions, save this Act from its unconstitutional deprivation of access to the court.

There are many individuals, particularly States, election individuals who are personally vitally concerned with the current meaning, application of the constitutionality of the Voting Rights Act in these many aspects, yet for instance in Alabama, you may need to travel 800 miles or more, Choctaw County for the District of Columbia, as has been said, without the power, to subpoena witnesses for more than 100 miles.

It’s even to elaborate upon the expense of the burden, and practically impossibility of obtaining free prompt or effects of justice under said conditions.

Attorney:

This is drastic and despotic legislation.

It gives no reasonable opportunity to be heard to prevent and/or to present evidence and it’s not in the clause with both “fundamental principles of liberty and justice” that Mr. Justice Black has said “lies at the base of our civil and political institution”.

If the Congress can validly designate one Article III federal courts to handle the litigation to this Act or any other Act, it can designate any Article III federal court with the invalidity of the Act has been more or less apparent.

If Congress had designated the District Court — a District Court in the State of Hawaii instead of the District Court here in the District of Columbia.

The effective — the effect of the restrictive provisions is to say among other things that a state statute cannot become effective until approved by federal court with a specifically named federal court.

Thus, such court has made a part of the State’s law making power.

This is certainly not within the grant of any provision of the Constitution.

We are familiar with the legislative contention made by the defendant and this relies on the cases relative to emergency price control legislation in World War II, the rationale of those cases are based on a great factual jeopardy and as much as the earlier legislation was admittedly of a temporary nature to meet war time crisis, while the Voting Rights Act is permanent and no nationwide voting crisis exists.

We — this contention put — in this contention, I think that the words of Mr. Justice Rutledge, the Court will bear with me in the case of Yakus versus United States.

There’s forceful or forceful and most applicable to the first case in view of the absolute prohibition against any court to say that of the District of Columbia going into the validity of the various unconstitutional provisions of the Act so far as the States and the citizens of a state and the state election official is concerned.

He said, “Nor has it been held that Congress can forbid a court vested with a judicial power under Article III to consider this question and called upon to give effect to a statutory or the mandate.

It is one thing for Congress to withhold jurisdiction, it is entirely another to confer it and direct that it be exercised in a manner, inconsistent with constitutional requirements or what in some instances may be the same thing without regard to that.

Once it is held that Congress can require the courts criminally to enforce the unconstitutional law of the statutes including regulations or to do so without regard to their validity, their way will have been found to circumvent the supreme law and what is more, to make the court’s parties in doing so.

Whenever the judicial power is called into authority, it is responsible directly to the fundamental law and no other authority can intervene, force or authorize the judicial body to disregard it.”

That’s 88 Law, Edition 834 United States versus Yakus.

In the time of Magna Carta, we believe that has been a judicially accepted principle in the English speaking world that every litigant ought to be able to obtain justice completely, properly and without being obliged to purchase it as recently affirmed by this Court in Gideon versus Wainwright, of course that’s an impossibility when you have to travel this many hundreds or thousands of miles.

And because of that already, the suit has been denied access to the courts under this Act.

For example the registrars of Montgomery County, Alabama to say nothing of similar results and in other cases and in other base where the courts have said, because of 14 (b) we can’t touch your contention.

Yet of course, the Government has the opportunity to proceed in any court.

In other words, we say that Congress cannot fall or restrict the power of the judiciary to determine, interpret and apply the law through the guise of merely restricting venue.

The doctrine of separation of powers and the inevitable lack of due process resulting from such onerous restriction we think forbid.

Now, with respect to the equality of statehood which have been touched upon by various attorneys preceding me and by some members of the Court, I think Article IV Section 3 has involved the present situation, not historically repetitive of the legal constitutional turmoil in the United States as 1850’s and 1860’s were highly analogous.

That time, those were administered to Federal Government, prompted by the parties and spirit in prejudice had become so strong, they were no longer willing to be bound by the ligaments of our written Constitution.

And Coyle versus Smith, this Court asked the question, “Can a state be placed upon the claim of equal — inequality with its sister states in the Union if the Congress chooses to impose conditions which so operate at the time of its admission?”

The Court answered its own question by saying, “Although that is Illinois admission, he at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to their original states.

She was admitted and could be admitted only on the same footing with it.

Equality of constitutional rights and power is the condition of all the States of the Union.”

If it was unconstitutional to deprive a state of a sovereign power on an attribute of equality as a condition or restriction and the conditional act of admission, then a fortiori that such a deprivation by Congress cannot be sanctioned or upheld to legislation fast long subsequent through the State’s admission.

The Act which admitted Louisiana for instance provides he be admitted “on an equal footing with the original States in all respects whatever”.

It is not the mere assertion of her equality in this clause which is that is her equality.

Attorney:

It only pronounces that equality which the Constitution establishes.

If she’d be equal, however, she must be equally exempt from the legislation of Congress past or future as are elder States.

That’s Permoli versus New Orleans, 3 Howard, 589.

The congressional clause inserted in the acts of admission relating to perpetual freedom of navigable waters as common highways was never held to restrain to — in any degrees of full power of the State even if the exercise of state power resulted in obstructions and impediments to navigation, that’s in Willamette Iron Bridge Company versus Hatch, 125 U.S.

One, “The right of Alabama and every other new States to exercise all the powers of government which belong to and may be exercised by the original States of the Union must be admitted and remained unquestioned except so far as they have temporarily deprived the control over the public lands, from Pollard versus Hagan, 44 U.S. 212 and this Court further emphasized that proposition in the and Escanaba versus City of Chicago when it held equality of constitutional right and power is the conviction of all the States of the union old and new.

The equal footing clause prevents extension of the sovereignty of the State and to a domain of political and sovereign power of the United States from which the other States have been excluded.

Just as it prevents a contraction of sovereign, that is state sovereignty which would produce inequality among the States.

For equality of States means that they are not less or greater or differed in dignity or power, that in U.S. versus Texas, 339 U.S.707.

The freedom of speech, press, religion, assembly, association, and petition are protected as immune from state invasion by the First and Fourteenth Amendment.

I believe that perhaps so in Gideon versus Wainwright.

So conversely, a preexisting and fundamental attribute of sovereignty of the States that is the regulation of the elective franchise is immune from federal invasion transaction, diminution or destruction by the Ninth and Tenth Amendment as well as by the doctrine of equality of statehood.

The negative constitutional proscription against state denial or abridgement of the right to vote by reason of race or color partly creates an affirmative federal power to setup a system of federal elected franchise with any State interrogation, if not destruction of an electoral procedure, not discriminatory upon its face.

And thereby, deprive such State of its constitutional equality of political sovereignty.

As I recall only by the Reconstruction Act which I think in one of the decisions of this Court was declared unconstitutional, has Congress ever free this, they attempted to setup an elective franchise.

It is interesting to compare, therefore the voting qualifications in that Act to those of this Act.

As a former, it seems have served as a suggestive model for this Act.

The qualifications of the Reconstruction Acts are that the voter would be 21 years of age and upwards that he’d be a resident of the State for one year previous to the elections and it excludes those who participated in the rebellion or who committed felonies at common law.

We view — I’ll mention later as to how that is being applied in the present day and under the present Act.

We find that in the application of the Voting Rights Act in Alabama that is practically the rules, the qualifications, the criteria that’s being followed today.

Congress, as we must remember has assumed the protection of voters and their right of franchise vis-à-vis state laws that is under the Fifteenth and Fourteenth Amendments, and has assumed the protection of the application of these law as this Court had properly held Congress may do.

It has done so in many ways and more recently through enactment of the various Civil Rights Act and supplementary legislation.

And in respect thereof, it has been frequently held that this Court, the Government is not included from evading and correcting any impediments or discriminations by anything, the States or individuals, by state authority to do in violation of the congressionally enacted prohibitions.

The Voting Rights Act at its very time goes far beyond the protective regulations of the Civil Rights Acts by actually asserting its power to outlaw and suspend and I say destroy because the power to suspend is the power to destroy.

If you can suspend for five years, you may be able to suspend for 25 years.

That is by actually asserting a power to outlaw and destroy an existing elected franchise and to create and install in lieu thereof federal criteria qualifications and procedures for voting even in local and state election, never before the judgment in that court, the facts and substance this Act does and this without making it uniformly applicable to all the States.

Uniformity, however, could only cure this one defect of Constitution — of unconstitutionality or defect of constitutional inequality of statehood and would by no means cure what I call a vindictive act of its many other constitutional defects.

The destruction of equality, sovereignty of seven entire states, we submit, is a far more calamitous political crime than is their alleged passed discriminatory depravation of individual political rights in a few counties of a few of the 50 states.

Other States remain free to regulate fair franchise to have that pass or to enact new laws without the crippling conditions imposed by the Voting Rights Act upon Alabama and the other affected States.

Alabama has recently enacted legislation through a constitutional amendment and through an enabling act that changes the Voter Qualification Acts that puts it very nearly on a footing to that of New York.

I think part of the legislation was adopted to that but it passed subsequent to the passage of Voting Rights Act, therefore, it’s fraud, we can’t apply regardless of power or good it might be or how effective it may be to get rid of some of the conditions that Congress is attempting to do.

Attorney:

As pointed out, I believe in Wall Street Journal commenting on this Act.

It talks about this inequality of statehood proposition.

It says this would create a truly ingenious paradox.

The illiterate citizen, Negro or otherwise, would find himself with more rights in Alabama and her five outcast sister states than the great State of New York, more of the educational level of the voting citizens of Alabama, the low level of which is part of the general complaint against it by civil rights leaders would be further reduced and this by federal sanction.

Unfortunately, the irony is not funny.

They need to paradoxilize a serious question.

Is it moral that our national law should apply one rule to one state and another to another?

That of course is the fundamental proposition in violation of the equality of statehood.

And finally, with respect to my portion of the Act of the argument, it becomes an unlawful delegation of power.

Section 5 of the Act attempts to confer non-judicial powers on the federal courts.

That is the proposition which would be argued by the Attorney General of Georgia.

Section 6, refers to judicial powers on the executive department, that is the Attorney General.

When Section 6 authorizes the Attorney General to appoint federal voting examiners, it authorizes him to take action which suspend and supersedes the State’s voter and registration system.

It’s a punitive proposition.

And Section 8 authorizes intrusion by these examiners upon and in appearance with purely state and local elections and procedure.

All, after he, the Attorney General decides that because in his judgment or as things appear to him and I’m using the language of the Act now, more or less people of one ethnic group were registered to vote than another, there was in fact some violation of the Fifteenth Amendment.

Then, when he exercises that judgment or things appear to him in a certain way, we say, that using that power which was delegated if that is actually a delegation of judicial power to the executive department.

The Act says is, “judgment” is the key to its remedially corrective or punitive action.

The Attorney General’s judgment in turn and based on his belief.

We know the judgment of any court was based on its belief of the facts involved.

Consequently, Congress has attempted a constitutionally impossible test through the statutory delegation and is the test of avoiding the fundamental separation of judicial and executive power.

It has unlawfully conferred judicial power upon the executive and made the Attorney General and both the judge in execution in respect of if, when and how there should be federal suspension and replacement of a state registration process by a federal system, not by in an effort by something created by Congress, a federal system.

As Justice Sullivan stated in Springer versus Philippine Islands, 277 U.S. 189, “It is an inherent general rule in the American constitutional system that both the legislature cannot exercise either executive or judicial power”.

The legislative treatment under question is a double-barrel attack against the constitutional separation of powers.

First, it assume that Congress has the judicial power of deciding when on or what circumstances federal voting examiners and all their panoply of power may be pirated in these capital states where local election laws are superseded.

And then second, it delegates such judicial power to the executive.

That the legislature had no judicial power which it can delegate, it cannot give such power to an executive officer to determine controversies as to voting rights and then render a decision to determine controversies as to voting rights.

And render a decision which is binding on the State.

However, that is exactly the situation brought about by this Act.

And except that Congress has gone even further and said that no one can even dispute or review what the Attorney General determines and decide.

Attorney:

It gives him judicial power and then says no one can review it.

We realized argument may be made.

The Attorney General has merely given the power to supersede and eradicate the State’s registration system as antecedent to an administrative function.

But this is demonstratively not true because the thing which brings this supra state power into existence is the judgment and determination of the Attorney General himself.

The power given the Attorney General under Section 6 is not that of investigation.

The Government may call it an enforcement power but we do not think it is there.

On the contrary, as we have stated, the Act calls for a mental exercise or decision by the Attorney General which in logic and practice and reality is a judicial act.

In other words, the adjudicative determination depends on the discretion and belief of the Attorney General and how he viewed the 20 or more complaints which he has received.

Also, on his judgment as to the “apparent” of things as related to the ratio whites and blacks registered to vote in which ratio may partially or entirely be unrelated to any Fifteenth Amendment violation.

That is void of any clear standards, its application which is a judicial function rather than an executive one does depend alone upon executive discretion.

This despite the law as well put by Justice Cardozo when he said, “I can see that to uphold a delegation, there is need to discover in the terms of the Act, a standard reasonably clear whereby discretion must be governed.”

There is no such clarity, in the hodge-podge of determinations, judgments, beliefs and how things appear to him, the Attorney General is called for by this Act.

The States, its officials, citizens affected by the exercise of such indefinite discretion have no way of determining, the authenticity, the validity or the correctness of any complaints before these are received by the Attorney General.

Nor do they have any opportunity of showing that a racial imbalance in registration resulted from nondiscriminatory arrangement.

For instance, with all the encouragement racial agent provocateurs have received.

It is not unreasonable distinction.

They would purposely surreptitiously, organize perhaps an election boycott, so as to pull the trigger for appointment of federal examiners.

Because we have seen that federal examiners had constantly abused their authority even under the Voting Rights Act.

In Alabama, a registered persons who cannot read or write, persons who are not 21, persons who cannot even give their own names, persons convicted of felonies, persons who have not been in the State for a year, persons who have been previously raised in the same or other counties thus permitting multiple voting and also registering persons with no effort to verify where they live or whether they are otherwise qualified under state law except for the Voting Rights Act.

For instance, the Montgomery County Board of Registrars has just shown that more than 700 persons registered by examiners in that county alone are unknown when notices went through, that the address is given, they came back.

Therefore, under this Act, these persons who may not be furnished or removed from the list by state authorities are still there and as the examiners furnished to the state officials, election officials, no means of identification.

Then any 700 persons can show up at Alabama elections where these examiners issued registration certificates and proceed to vote.

On the Section 11 of the Act, it would be criminally dangerous for a state official to challenge or fail or refuse to allow such a certificate barring to vote.

The net effect, it would be to destroy the honest and valid elections.

In respect to one question being raised, we wished to close with these quotations from 295 U.S.495, because it gets to some of the propositions in Mr. Justice Black’s those situations that we heard.

“Extraordinary conditions do not create or enlarge constitutional power, the Constitution established a national government with powers deemed to be adequate as they are proved to be both in war and thieves, but these powers of the national government are limited by the constitutional grants.

Those who act under these grants are not at liberty to transcend the proposed limits because they believe more or different power is necessary.”

And that of course is the motivation theme and the real reason passed for the passage of what I would call the motion of legislation that we heard in the past.

Again, I wish to thank the Court for its courtesy.

Earl Warren:

(Inaudible)

Attorney:

Mr. Chief Justice, may it please the Court.

The United States Civil Rights Commission and its report to the president in 1965 had the following to say.

A week after civil rights marches had been attacked by Alabama law enforcement officers, they attempted to walk from Selma to Montgomery to dramatize their appeal for full voting rights, the president appeared before a special session of the Congress to urge speedy enactment of voter legislation.

The way the events of that march were presented to the world by a press, radio and television, stir the public sentiment that naturally had its impact upon the president and the Congress.

That was a passage of the Civil Rights Act of 1965.

I’d let the record clearly show, let the impression unmistakably be made that my appearance here today and my argument here today, serves in no way to justify or defend that tactics employed by the state troopers of Alabama, the deputy sheriffs of Dallas County or to the consequent as they carried out their acts to hold that march, that fatal day, there is no defense.

Either legal or moral, to that brutal and unwarranted attack, there can be no rational defense and the fact that the — of any orders that was given to them by their superior officers.

No justification by the approval given those law officers to use those tactics by high state officials in my state.

However, I do respectfully submit to this honorable Court, the national reactions stimulated and brought out, brought into clear focus by these Acts, moved the Congress of the United States to act swiftly, not only in an attempt to wash away the injustices of this particular case but also the underlying just grievances of the Negro citizens.

Whether I submit that passions of righteous indignation and in the press of time, neither due contemplation or sound deliberation was given to the resulting legislation, thereby presenting to this Court, background or setting which calls for indeed the searching and careful consideration of all of the arguments, constitutional arguments both for and against the Voting Rights Act of 1965.

The State of Alabama expresses very much concern with the method by which the States affected have been brought under this Act.

If not in fact it seems to us that it’s very kindred and principled to the way the legislature of Alabama drew the city lines of the City of Tuskegee by statute.

Statute struck down by this Court in Gomilion and they’re formerly used to include certain States and exclude others, leaves the excluded States free to use literacy test and local course, which is the usual American way such as not true, the States included or affected by this Act.

The use of these deliberate methods, discrimination between States and the citizens there and I believe is obtained.

The affected states, the affected States despite their desire to have a literate electorate, now find the Federal Government certifying illiterates, contrary not only to the state law but contrary to the wishes of the people.

So Alabama here today joins her sister states in opposition to this Act, and Your Honors, we might will join South Carolina in this — because I think it is all but judicially, and certainly executively and congressionally declared that though this may be South Carolina’s lawsuit, this is certainly Alabama’s law.

This argument on behalf of Alabama is directed to the defendant’s contention that this Act, the Voting Rights Act of 1965 suspends or destroys the right to provide that one must be able to read and write, the English language as a condition precedent to registration.

One who can read and write is literate of course.

The federal courts in Alabama have repeatedly ruled, repeatedly ruled that one must be able to read and write.

They have repeatedly declared that this is a pre-requisite to registration under Alabama law.

And the discrimination enjoined in those cases, I think some 15 in my State, the discrimination enjoined has arisen from the use of these tests or the — these test to determine illiteracy or literacy and in determining whether one embraces the duties and obligations of citizenship.

For instance, it’s acknowledged and in Macon County, Alabama long, lengthy sections of the Constitution were given to Negroes to read while shortest sections of the Constitution was given to the whites.

While discrimination in the use of test and the demonstrations of literacy had been enjoined in a number of cases, no court in Alabama has ever decreed that one need not be able to read and write in order to register.

But now, not only the Commission on Civil Rights and the defendant here had insist, based their claims or contends that the Act required the registration of any otherwise qualified person, even though he may not be able to read or write.

This by virtue of Section 4 of the Voting Rights Act, and yet as late as 27th April, 1965, this Court in Harman versus Forssenius said, once again the States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised and of course as taught in Lassiter, have the right to determine and provide that only those who are literate may exercise that franchise.

This certification by federal examiners of illiterates declared — declaring them qualified to voters therefore I believe unwarranted in the States that have these literacy requirements.

And the defendant’s claim that this Act permits this if correct renders Section 4, this Act unconstitutional.

In this respect is invading the powers of the States.

For this reason, any attempt to uphold the Act of 1965, must begin with the determination by this Court.

The Act abolishes test and devices only that clearly states this.

Attorney:

Tests and devices are defined in the Act and defined as follows.

They phrase text or device — test or device shall mean any requirement that a person or a prerequisite for voting or registration for voting, one, demonstrate the ability to read and write, understand and interpreting the matter; demonstrate any educational achievement of his knowledge on a particular subject; possessed moral good character — good moral character through his qualifications by voucher or registered voters.

If the Congress — if the Congress should abolish test and demonstration as to one’s sanity as you so stated, they might well do.

Suppose that Congress abolished the test and demonstration as to one’s sanity, who among us would contend that immediately — the mental incompetence have automatically been qualified to register and vote.

Now, suppose the Congress passed the law and suspended the test to determine a man’s age, would this automatically qualify infants to register?

Constitutional questions therefore as here pertinent must start, must start at the familiar rules of construction with the premises that tests and devices only as defined and suspended by the Act.

Not the requirement itself that one must be able to read and write, write tests and devices only.

Under the law of some states, the burden is upon the applicant to show his qualifications.

By simple statement under oath, a simple statement under oath that I can read and write or the answer to a simple question, can you read and write, were satisfied.

Completely satisfied and would not force upon a state, literate electorate contrary to its laws.

Federal examiners could ascertain this fact by the addition of one simple question to the form now used and could be in compliance with that of state law provided their appointment is held legal.

A person is asked his name, there’s no question about that, it is accepted.

He is asked his residency, is it — has it the required link, there’s no question.

He is asked his age, there is no challenge.

Why couldn’t he be asked, can you read and write?

Why couldn’t that be a requirement?

The Department of Justice has argued in the cases in Alabama now pending at Section 4 (a) of the Voting Rights Act prohibits any election official in the areas affected from denying the right to be registered or listed because one’s and ability to read and write.

No doubt the same argument will be made here.

Byron R. White:

What if the determination of the Attorney General in the operation of the triggering devices in connection with Alabama that Alabama registrars could under any current instruction of this Act ask this question of registrants.

Attorney:

It has been suggested Mr. Justice that —

Byron R. White:

And could do so without violating this Act at all.

Attorney:

I think so, yes sir.

This question could be asked much as your name, your address —

Byron R. White:

And it wouldn’t take any new legislation in Alabama either, would it?

Attorney:

It possibly would, that could take some legislation.

Our (Voice Overlap) —

Byron R. White:

I know but if — would it be violative of any present —

Attorney:

No sir.

Byron R. White:

— Alabama laws —

Attorney:

No sir, it would not.

Byron R. White:

— or registrars simply asked this question of regis —

Attorney:

I don’t think so and I don’t believe that would require any legislation the fact that he’d be asked the question, can you read and write?

Of course he would — if you’d then be subject to challenge, if you felt that if some individual or some mem — official of the court felt that he had lied that he was not literate, he could not –

Byron R. White:

I take it that this suggestion is not — isn’t a brand new one that the Attorney General has heard about it.

Up to now, does he indicate what his position is about?

Attorney:

That is I just said sir.

He has contended in arguments and cases in our State that the Section 4 (a), not only does away with tests and devices but also does away with —

Byron R. White:

I see.

Attorney:

— our requirement that one be literate.

And that’s precisely the point that I’m trying to make, you see Alabama stands in a peculiar position here, we stand convicted some 15 times.

And I stand and admit that the tests or devices have been used in a discriminatory manner in my state.

And yet, a great many of my counties as I will get to later, never have permitted to this and our States wishes and desires that we have a literate electorate.

I need to make a distinction between tests of literacy which can easily be used and has in the past been used in my state for purpose of discrimination, make a distinction between tests of literacy and the actual requirement that a person actually be literate.

My contention is if the Congress had intended to prohibit or suspend the state law providing or asking or requiring that one could read and write, it could have done so by just merely stating the ability to read and write as a qualification for registration of voters and hereby suspended or abolished.

That could have very easily inserted these lines that had the contention been or is it true that those States that require or desire literacy that Congress could have added these words to the Act.

The ability to read and write as a qualification for registration and voting is hereby suspended or abolished, these would have caught enough States in this bill that it would have been impossible to pass, I realized this.

Had they done this?

But I do not believe it was their intention.

I do believe it was the intention to stop the use of these literacy tests.

Stop them as being used in the discriminatory manner.

I do not believe that it was the desire or the wish of Congress that a state whose desire that their electorate be or literate electorate, that they’d be denied the right to require that they read and write.

Instead, the Congress of course went into great detail in defining these tests and devices.

These that are used to ascertain literacy and they suspended these tests and devices, very clear on this Act, by the language that’s very plain and clear.

In Section 4 (e), however, as the person’s educated in American flag schools in which the predominant language was other than English the Congress said, it is necessary to prohibit the States from conditioning the right to vote of such person on ability to read, write and understand or interpret any matter in the English language.

This is quite different from 4 (e), it also gives knowledge that the Congress knows how to use language desired to obtain a given end.

For Section 4 (e) has been ruled unconstitutional in Morgan versus Katzenbach 247 F. Supp. 196.

It’s also noted that the Court their said in effect and this is of course my main contention that the Voting Rights Act of 1965 primarily intended to prevent discriminatory administration of the right to register and vote.

Primary intended to prevent discriminatory administration of the right to register and vote.

And during a hearing before subcommittee number 5 of the Congress, the defendant herein stated, highly literate Negroes had — Negroes have been regis — refused the right to vote, totally illiterate whites have been allowed to vote.

Now, this does not tell the entire of the whole story.

Attorney:

The number of white illiterates registered since the read and write requirement became law in Alabama in 1951 is very small.

It is not over an average of eight of ten per county and these — are those involved in the suits of the — by the United States.

And the Department of Justice, you understand gets copies of the application for registration in advance.

They searched them here in Washington for white registered illiterates, they sent in the FBI then, agents to of course contact and those that are thought to be illiterate and summon them to be a witness on the trial.

There is no attempt but no effort made to see have there been a few illiterate Negroes to slip through at the same time, only white.

And no case have they presented in a great number, not in a great number and the registration contrary to state law of a few illiterates, of a few white illiterates does not authorize similar violations to state law by the registrations of thousands — literally thousands of illiterate Negroes.

Neither does the registration of ten — ten white illiterates authorized a registration of ten Negroes.

This would do nothing more than just sanction a continued violations of state law.

And in the United States versus Atkins, 323 F.2d 733, Judge Reeves for the court had this to say.

Rather than making such unlawful practices a permanent fixture in Dallas County, the District Court could on petition by appellant, urged from the registration list those persons proven by the appellant to have been registered by a procedure which does not meet the minimum requirements of state law.

These persons could then reapply for registration subject to the same requirements as anyone else.

Search relief would be within the broad equity powers recognized in Alabama versus U.S.

The United States has never pursued this method, yet continuing instead in its efforts to register Negroes without regard to their literacy as required by our state law.

As to the administrative remedy, our challenge to a federal examiner or the listing shall be then obtained that may within ten days after the listing of the challenged person is made available for public inspection.

And if supported by affidavits of at least two persons having knowledge of the facts constituting the grounds for challenge and certification that a copy had been served either in person or by mail on the challenged person at the place of his residence.

Now, the Act is sound of course as to just who will make this challenge.

And through December 28th, 1965, according to the Civil Rights Commission, 36,161 Negroes and 190 whites have been found eligible by federal examiners in Alabama.

It is estimated that a large part, possibly even a majority of these are illiterates.Neither the — my office nor anyone else could follow the Act in the preparation of the number of challenges required on the grounds of illiteracy.

In addition to that, illiteracy challenges are futile, since the examiners have instructions to certify illiterates.

Also that the purpose of the administrative remedy is to decide questions of individual applicants’ compliance with the qualifications required by the examiners, not to pass upon what those qualification should be.

What is state law is a pure question of law for the courts and not the examiner.

One final observation before concluding, this, on the very day of the service of Alabama’s brief, December 13th, 1965, a new constitutional Amendment relative to the qualification and registration of electors in Alabama was proclaimed ratified.

Under the new amendment, good character is no longer required and the provision in effect of November 1st, 1964 that one must embrace the duties and obligations of citizens — citizenship under the state and federal constitution has been eliminated.

Now, the Voting Rights Act of 1965 provides, however that when a state is covered by the Act seek to change these voting qualifications or procedures, that those in effect on November 1st, 1964 must either obtain their approval of the Attorney General or initiate a federal suit.

The Attorney General objects so if they’re not been submitted to him for approval, and you’ll always may not be enforced until the District Court for the District of Columbia rules the changes will not — of the purpose of affecting or denying the right to vote because of race or color of any person.

It appears therefore that the State have said it may not remove conditions which have thus far or before previously led to claims of discriminations, unless by suit in the District of Columbia or prior approval by the defendant himself, a rather, unusual situation to say the least.

But I will say as my conclusion, I remained firm in my conviction, very firm in my conviction that every qualified citizen should be permitted to vote, that literacy should be a basic element of qualification.

Discrimination regardless of its origin, whether it’d be on account of race or color, whether it’d be on the use of literate test or literacy demonstrations, must be eliminated, discrimination for any reason must be eliminated.

And as I previously stated, over 50 of Alabama’s 67 counties have never discriminated in voter registration.

And even in those counties where this pattern has been found there has been great improvement or of much progress in some of those counties.

Attorney:

And although I merely ask that literacy be a condition precedent or a prerequisite or a requirement of voter qualification, I remain firm in my view that it not only should be, but it is allowed under this Act.

Now, I also remain very firm in my view that discrimination should be eliminated by constitutional means, and this the Congress did not do by the passage of this Act.

The end sought simply does not justify the means used as to South Carolina or any other State included in the provisions of this Act.

Your Honors, I would submit that no man, no man has for or shall continue to fight harder than I have to protect both the human and constitutional rights of the Negro and my state.

Whether it be determined that the Voting Rights Act of 1965, requires a registration of otherwise qualified person, even if he not be able to read or write, if this is required when the state statutes clearly require that a person be able to read and write in order to vote, it should be struck down as invading the powers of the States.

Or, this Court should certainly judicially determine that this Act does not or cannot constitutionally prevent States from requiring a person be literate in order that he’d be allowed to vote.

Thank you so much for your time sir.

Earl Warren:

Mr. Patterson.

Joe T. Patterson:

Thank you sir.

I would like only to take ten minutes of the allotted time to the State of Mississippi, leaving the balance for the Honorable Judge Clark to this special assistance associated with me in this argument.

I shall address myself solely to the triggering clause and the nullifying state laws by suspension — by suspending a “valid” constitutional state law.

I submit that the 50% figure as of November 1, 1964, on the 50% participation in presidential elections of 1964, is an arbitrary and mythical formula admitted to be solely for the purpose of reaching these particular States intended that the Act shall be applied to.

And further, just as deliberately designed and intended to exclude all other States and never to apply to any other State although other States may at some time in the future fall within this very 50% formula.

Therefore, the 19 or 20 States including Massachusetts and New Jersey, who appear and argue orally as amicus in support of the U.S. Attorney General can do so that it contend and secure in the thought that the arbitrary, unprecedented and in our opinion unconstitutional provisions of this Act cannot and never will apply to them.

At the Voting Rights Act of 1965 further provided in addition to the 50% formula as of November 1, 1964 that it should also apply to any State that had a literacy requirement at the time of the adoption of the Fifteenth Amendment, then I am confident the Commonwealth of Massachusetts would be here as amicus in support of South Carolina.

Because at the time the adoption of the Fifteenth Amendment, Massachusetts had a strict literacy requirement and her senators and congressmen defeated proposals to include literacy in the Fifteenth Amendment that this Act provided.

That it should apply to States having property requirements to vote at the time of the adoption of the Fifteenth Amendment.

Then Rhode Island and New York would be here as amicus in support of South Carolina because they insisted on retention of that right.

That this Act provided that it should apply to States that had voting laws designed and intended to discriminate against certain people, on account of national origin at the time of the adoption of the Fifteenth Amendment.

The West Coast states, particularly California, would be here as amicus in support of South Carolina because the record shows that the senators from the West Coast states used harsh language in no uncertain terms in expressing their desire and the intention to exclude the Chinese from the ballot at that time.

If the Congress can pave this Act to laws and conditions existent in the State as of November 1, 1964, regardless of whether such laws and conditions have changed into that day, then by the same authority as well as logic, it could go back to 1869.

My counterparts who would be here as amicus in support of the U.S. Attorney General, will I’m sure say, we have changed or repeal those laws that discriminated on account of property or literacy requirements, on account of national origin.

And I stand here, and say that the State of Mississippi has since November 1, 1964 by amendment to its constitution and by acts of the legislature, repealed and changed its laws governing registration to vote, reducing such requirements to a minimum, incapable of discriminatory administration.

In attempting to apply the Voting Rights Act of 1965 to the State of Mississippi, the government seeks to punish a state because laws were in existence in Mississippi on November 1, 1964 alleged to be discriminatory and because 50% were not registered or did not vote in November 1964.

Irrespective of the admitted fact that such laws have now been repealed and registration requirements reduce to a bare minimum that in no way violate the prohibitions of the Fifteenth Amendment that which this very Act is bottom old and states in its very title that it’s an Act to enforce the Fifteenth Amendment.

We submit that the pronouncements of this Court, beginning with Minor v. Happersett in 1875 to Lassiter versus Northampton in 1959 and Carrington versus Rash in 1965, are all applicable here.

And that Congress cannot authorize and direct suspension of state laws that in no way violate rights secured by the Fifteenth Amendment, simply because that state had in the past laws alleged to be violative of the Fifteenth Amendment.

In conclusion, although my friend, the U.S. Attorney General, in hearings in this Act so fit to say that regardless of how the State of Mississippi may change its laws reducing qualification to register and vote, he would not conceive good faith and good intentions to the State of Mississippi in its desire to make registration and voting easier for members of the color and race.

I stand upon the record as reflected by the records of the 82 county registrars in Mississippi which shows that since applying to reduce for requirements to register in accordance with the present law of Mississippi beginning August 1, 1965 to October 1965, 66,886 people have been registered.

And I am confident that 85% or 90% of that number are members of the colored race.

Joe T. Patterson:

And during that same time, federal registrars and they have come to our States in number but they have only registered during that same period of time 13,120 to vote.

Therefore, as we’re doing better than even — my friend is with this arbitrary file.

Our only difference with the position of the government is that the State of Mississippi has the right to require that a person be able to read and write in order to register.

And with that eliminated, we are in perfect accord.

In spite of expressions of doubt of good faith by the U.S. Attorney General, I prefer to take that this Court is going to follow the expressions of Mr. Justice Black in the recent case of Cameron versus Johnson which came from Mississippi.

When Mr. Black’s — Justice Black said, “It is true that we have only recently held that Mississippi must not deny a constitutional right of Negroes to register and vote, but this of course does not mean that no good or valid law could come out of the State of Mississippi.”

We submit that a good and valid law has come out of the State of Mississippi that it should not be arbitrarily suspended that we should be permitted to register voters.

This Court has judiciously and as jealously and forcefully protected the right of the individual against discrimination as it should have done.

But I respectfully submit that the same court should protect the constitutional right of a state against discrimination and that it should be equally and jealously and just as forcefully protect it.

I thank the Court for its kind attention.

Earl Warren:

Mr. Clark.

Charles Clark:

Mr. Chief Justice, gentlemen, Your Honors.

I would like to begin my portion of the assigned topics which concerns itself with the bill of attainder aspects or the bill of pains and penalties aspects of this legislation.

By calling to Your Honors attention that the State of South Carolina is before this Court, not qua state but as parens patriae of people, of individuals, of persons, just as much individuals, just as much citizens as members of the Communist Party.

There’s no reason to make a distinction between Dave Robinson, a citizen of South Carolina, who is an individual here complaining about this Act and who is in effect telling this Court that the Congress of the United States in attempting to deal with what it considered an evil has in fact violated the Constitution under which it operates because the Constitution is over every one of us.

This document says, no bill of attainder or ex post facto law shall be passed.

This is a limitation on what Congress can do, no matter how noble an undertaking that Congress starts out to accomplish.

This limitation is there on everything that it does.

The classic definition is a legislative act which inflicts punishment without a judicial trial and every aspect of that definition is satisfied in this case, every aspect.

More simply, it is a legislative trial.

If Your Honors please, you will recall that this time last year, I stood before you in a case, United States versus Mississippi, in which we were contending that the Government had filed too broad a lawsuit in which we were contending that the judicial power, judicial power, Your Honors please, did not give Mr. Katzenbach — Attorney General Katzenbach, the right to pursue the entire State of Mississippi in one lawsuit.

And that issue had never been made before, this Court ruled against me.

And we went back to Mississippi to try that lawsuit and I affirm my state, taken out of the courts, the courts — the forum that this Court had declared competent to deal with the entire state in one lawsuit but I’m taken out of that forum and into the forum of Congress where no rights are accorded to litigants of a judicial nature or according to the State of Mississippi and numerous aspersions were cast on that State in the course of the congressional hearings.

We didn’t get a judicial trial.

We were forced to leave a judicial proceeding in the midst of it.

A proceeding which by the way it has now been recast as a suit to enforce this Act, a much limited version of the lawsuit we were pursuing to see whether or not in the true test of truth, in the test of truth in a court of law, the Attorney General could prove the things that he claimed to Congress were wrong with voting and registration procedures in the State of Mississippi.

He even contends that court ought not be more ignorant than other man, and it’s a hard thing to say that that’s a bad rule.

But it is and the statute of justice herself is blindfolded.

She knows nothing except what the litigants produced in a courtroom with the true test of trial procedures available to those who are litigating about what is true.

And this is what’s wrong with the bill in the sections attacked by South Carolina.

Charles Clark:

This is not to say that the entire Act must go out and certainly not Your Honor, Mr. Justice Black, it’s not to say that Congress can’t enforce the Fifteenth Amendment but it is to demand that that enforcement be appropriate legislation and it cannot be appropriate if it doesn’t square with the document that Constitution is a continuum.

It’s not one thing here and one thing there, if a law does not square with the entire document, it can’t be a constitutional law.

And if Congress can right drop shot over you, there’s no need to have this Court.

If Congress can’t be called to account for its actions within the limited framework of the Constitution, why do you need to sit?To hear appeals from the States apart court?

That’s not what Article III established this Court for.

It’s established that’s they give you the opportunity to call any department of the Government to account, if it left the bounds of a document we all for to uphold and support and defend.

Your Honor please, I’m at exposing point, would you —

(Inaudible)

Charles Clark:

Oh, you want to finish this afternoon, Your Honor?

(Inaudible)

Charles Clark:

Excuse me.

(Inaudible)

Charles Clark:

Yes sir.

(Inaudible)

Charles Clark:

With it.

(Inaudible)

Charles Clark:

If Your Honor please, this is why I emphasized that the litigant before you today, is not the intangible State of South Carolina.

This is a suit in which jurisdiction is only sustained because of its parens patriae position.

Because of Baker versus Carr, in the line of cases in which you said, individuals have a right, not to have their vote diluted.

This is a matter of people claiming to this Court that their rights have been infringed, just as much so as in ancient England and in revolutionary America, when individuals complained, when legislatures named them, and this is exactly what Congress did.

Congress named these States.

(Inaudible)

Charles Clark:

I agree.

(Inaudible)

Charles Clark:

I don’t know sir.

(Inaudible)

Charles Clark:

If Your Honor please, bill of attainder — I hope to reach it of course.

(Inaudible)

Charles Clark:

Bill of attainders had been a problem to this Court ever since they were brought before you.

There’s never been but one unanimous opinion from this Court on the bill of attainder question, and that was in 1889 about whether you could require doctor who have a license to practice medicine.

Charles Clark:

That’s the only time this Court has been unanimous on the question of whether a particular act is a bill of attainder or not.

And there are two separate schools of taught, one is the strict historical school where you’ve got to find an old bill of attainder just exactly like what this Act does in order for it to be a bill of attainder just to prevent it.

That Court in Brown took awhile the concept and they said it’s intended to guarantee in its limited face the separation of powers within our uniquely compartmented government.

But, you can find attainders just exactly like this Act.

And I — one thing I do want to say, it is my contention that the Congress named the states.

Now, you point out that Alaska got included, well of course Alaska got included because they had a gift to Louisiana.

The Attorney General would say, he wouldn’t accept any test that didn’t include Mississippi, Alabama and Louisiana.

And their gift to Louisiana with this higher percentage of voting, he had to go to 50% in that vote or less.

But, it’s no problem because they can come to the District of Columbia and get out.

Is that — do that keep it from being a bill of attainder?

Not in the historical definition.

Because most of the old attainder acts provided John Jones or the Earl of Kellie is attained with the proviso that he must surrender himself to justice by a fixed date.

(Inaudible)

Charles Clark:

Surrender to justice was all the Act said.

Submit himself to the justices of the peace in England and be tried.

In fact, the old Irish Attainder Act that obtained over 2000 people in the same bill had a provision for surrender.

Of course they did keep that Act in their pockets until after the date was passed.

(Inaudible)

Charles Clark:

Yes sir.

But at the same time, there were in a number of ancient bills of attainder and some of the Tory bill of attainder in this nation.

They weren’t state clauses where these men could go to court and prove they weren’t Tories.

At least they’re, when they surrendered the justice —

(Inaudible)

Charles Clark:

Both Your Honor.

(Inaudible)

Charles Clark:

This is what we’re in right now.

That’s why I wanted to bring to Your Honors attention that Mississippi was picked up out of the courtroom and brought before Congress and convicted and then handed back to the courts.

This is what happened to — and as I say, the trouble is that you talk about States and nobody can put their hand on a state.

But I’m talking about people in Mississippi.

I’m talking about individuals who have a right under the rules of this Court, not to have their votes diluted by people who are not qualified under state law to vote.

Charles Clark:

Or by people who ought to be qualified to vote.

(Inaudible)

Charles Clark:

Fairly state law.

Yes Your Honor, I accept that premise.

(Inaudible)

Charles Clark:

I accept that premise entirely.

And the laws of the State of South Carolina are valid.

The laws requiring its electros to be able to read and write are valid laws.

And when Congress says you, can’t have those laws anymore unless you surrender and go to a court in the District of Columbia and try your lawsuit.

It has passed a bill of pains and penalties.

Hugo L. Black:

(Inaudible)

Charles Clark:

Absolutely not sir.

Absolutely not, I’ve never —

Hugo L. Black:

(Inaudible)

Charles Clark:

How does it get to that, Your Honor please?

By trying the States involved.

Hugo L. Black:

That is not valid (Inaudible).

Charles Clark:

But in the —

Hugo L. Black:

(Inaudible)

Charles Clark:

Absolutely not, Mr. Justice Black.

But it is a punishment when a group of citizens categorized by geography because they are in a state.

It is punishment when those individuals are denied the right to have a republican form of government to establish the rules that they choose to govern themselves.

Hugo L. Black:

(Inaudible)

Charles Clark:

And one of them is the Fifteenth Amendment and it says that you can’t have a law that you can’t have state action that discriminates on voting on account of race or color.

Hugo L. Black:

(Inaudible)

Charles Clark:

May I answer your question by asking you one.

If Congress —

Hugo L. Black:

(Inaudible)

Charles Clark:

— and they authorize it, and I mean it to be rhetoric.

If Congress determined that the communist menace was dangerous to this Government and could if unchecked result in the overthrow of this Government by force and violence.

Charles Clark:

Let’s give it — that’s just a noble motive that comes to my mind because it’s been involved in recent litigations.

It’s no less noble motive for Congress than this law.

But if Congress chooses to get, if Congress chooses to —

Constitutional foul?

Charles Clark:

Yes sir, constitutional foul.

And I hope the Court will accept that Congress’ motive is absolutely immaterial.

But let’s say they had a high end and they passed a piece of legislation that says members of the Communist Party can’t hold union office.

This is a privilege.

Certainly, no man has a right to a union office.

This is what’s classified in the laws on and their privilege.

But if that can’t be done because of the bill of attainder section of the Constitution, then by the same token, Congress can’t act under the second clause of the Fifteenth Amendment because of that same bill of attainder law.

And I only mean to say that they can’t act as they have done here, I don’t mean to diminish —

Hugo L. Black:

(Inaudible)

Charles Clark:

The key is the date, Mr. Justice Black, November 1, 1964.

This is what this law is about.

They didn’t want a law, they wanted a rule, they wanted the type of rule that comes from a court.

Let me say this, the classic — one of the classic examples involves epileptics in driving.

Certainly, Congress could pass a law that would say epileptics can’t operate automobiles in the District of Columbia.

But, with the same intention, the same motive, Congress can’t say, the people who occupy the home for epileptics at 304 K Street on November 1, 1964, can’t in the District of Columbia, have named it solely.

People in that home, they stated that they had 592 doctors that all appeared before Congress and swore to the congressional committees that the people that were living in that home for epileptics at 304 K Street on November 1, 1964 were advanced epileptics, subject to seizures momentarily.

And that every doctor said unanimously, they ought not drive, well they will kill people.

Congress can’t pass that law, only because of the attainder clause.

It is not a question of disabling Congress to enforce the Fifteenth Amendment.

I don’t agree with you that there is some type of history that puts more force in the enforcing clause of the Fifteenth Amendment that it puts in the body of the amendment itself.

But that’s not our difference.

Our differences is whether Congress in pursuing that —

(Inaudible)

Charles Clark:

This is a clause —

(Inaudible)

Charles Clark:

Not — it’s in the Thirteenth, Fourteenth and Fifteenth, it’s in all of these amendments.

Hugo L. Black:

(Inaudible)

Charles Clark:

But they can’t reach them Mr. Justice Black by adjudicating them in Congress across the street from here.

This is the place where adjudications are passed.

Hugo L. Black:

(Inaudible)

Charles Clark:

This Court is committed to the principle that any deprivation is within the attainder clause if the class is specified.

Let me read just briefly, these are the words of the Brown opinion that came down contrary to what the Justice Department thought it would while it was appearing before Congress.

The evil the Framers sought to bar legislative punishment of any form of severity of specifically designated persons of roots.

The only thing that I need to prove to you is that Congress designated the States.

You can take two simple documents, both of which any courts entitled to take judicial notice of.

You can take the census figures and you can take the Attorney General’s determination of what state law is, he didn’t need the makers determination, it’s a matter of any court to take judicial knowledge of.

Those two simple things added to this Act, name every state and every county, just as surely as if the spelling had been there in the bill itself.

And it can’t help but be a classical bill of attainder; it can’t help but be the embodiment of theory itself.

I would like to close with one brief quotation.

“We live in an age of anxiety, but so did the Framers of our Constitution.

We would do well to heed their warning and calm an anxious ages alike.

The accumulation of all powers of legislative, executive and judiciary in the same hands whether of one or few or many, whether the hereditary, self-appointed or elective may just let be pronounced the very definition of theory and Congress made the rule and Congress applied the rule to the State of South Carolina and brought it within the ambit of this Act and that can’t help but be a bill of attainder.”

Thank you, sir.