United States v. Mississippi

PETITIONER:United States
RESPONDENT:Mississippi
LOCATION:Louisiana General Assembly

DOCKET NO.: 73
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 128 (1965)
ARGUED: Jan 26, 1965
DECIDED: Mar 08, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – January 26, 1965 in United States v. Mississippi

Earl Warren:

Number 73, United States, Appellant, versus Mississippi et al.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

This is a case brought by the United States to enjoin Mississippi officials from continuing to enforce certain provisions in the Mississippi constitutions and statutes which in their operation deprive otherwise qualified Negro citizens of the opportunity to vote without distinction of race or color.

A three-judge district court held by a divided vote that the complaint did not state a claim upon which relief could be granted against any of the defendants.

Its decision was based partly on procedural or jurisdictional grounds and partly on the merits.

The central issue on the appeal as we see it, is whether the defendants continued enforcement of the Mississippi voting laws attacked in the complaint is unconstitutional, because enforcement of the statutes operates to deprive Negroes of the right to vote without distinction of race or color in violation of the Fifteenth Amendment and in violation of Section 1971 of Title XLII of the United States Code.

We submit that the statutes are unconstitutional and that they are enforcement by the defendants that violates Section 1971 principally for two independent reasons.

First, we say that the principal statutes involved here which I will identify in a moment, delegate to petty officials, uncontrolled discretion to qualify or disqualify would be voters in a community in which every political force is mastered to preserve white political supremacy.

And that that discretion is discriminatorily exercised in accordance with the original intent of the statutes and the systematic practice for well over half a century to deny Negroes the equal opportunity to vote.

This aspect of our case, as we see it, is based upon Yick Wo against Hopkins and in very brief it asserts that the intended and actual operation of the state laws, condemns them exactly as if the racial discrimination were written into the words.

Second, we say that the Mississippi laws or the principal law is under attack, violate the Fifteenth Amendment because they establish new and sharply different requirements for voting.

After a long period in which white voters were permitted to register and Negro voters possessing the same qualifications were not so that the effect of the new and sharply different requirements is to perpetuate a form of discrimination and this we think violates the Fifteenth Amendment under the principle in Gwynn against the United States and Lane against Wilson.

What way the statutes come across?

Archibald Cox:

I am going to refer to that in just a moment.

I was stating the theories at this point.

I will elaborate them later so that the Court may have them in mind when I go through the complaint.

Because it is obvious from the mere statement of the theories that in part, they depend upon the actual facts.

The facts are those set forth in the complaint because of course, the motion to dismiss admits its allegations for the purposes of this proceeding.

Arthur J. Goldberg:

(Inaudible) interrogatory, has it anything to do with the motion to dismiss.

Archibald Cox:

I intend to refer to one or two incidents as illustrations of the kind of thing that we have alleged, as indications perhaps of the proof that we would expect to introduce in support of it.

It doesn’t seem to me that there is any further need to rely on the interrogatories at this point.

We think the facts that we rely on are all sufficiently alleged in the complaint.

Arthur J. Goldberg:

But basically, these interrogatories are in the complaint in the motion to dismiss.

Archibald Cox:

That’s correct.

As I say, I shall refer to one or two of the facts of the interrogatories to show that specific illustrations of the generalization that I take it I could do that even if they weren’t in the interrogatories.

They would just be what we hope to prove.

Now, in going — making my argument and in going through the complaint, I intend to emphasize the first claim just because there is too much here to argue in an hour.

The first claim is directed at Section 244 of the Mississippi Constitution.

And I think it really exemplifies the critical issues in the case, I’ll tell not all of it.

Archibald Cox:

The complaint begins or the important part of this begins at 2 and 3.

The central allegation which dominates the entire case is contained in paragraphs 16 and 19.

That allegation is that it is the continuing all pervasive purpose of those controlling the government of Mississippi to establish, promote and maintain white political supremacy.

That objective, we allege in paragraph 16 and 17, was one of the principle purposes of the Constitution of 1899 — of 1890, and Section 244 was one of its principal instruments.

In its original form, Section 244 provided for a new registration of all voters.

And that every elector in addition to other qualifications shall be able to read any section of the constitution of this state or I shall be able to understand the same and read to him or give a reasonable interpretation thereof.

By 1899, about 82% of the white citizens of voting age had been registered to vote under the 1890 Constitution but only about 9% of the Negroes of that age.

From then until 1952 according to paragraph 21 of the complaint, Section 244 was one of the principal methods used to maintain white political supremacy and to deny Negroes equal participation or effective participation in voting, because Negroes who could read were nevertheless required to interpret provisions of the Mississippi Constitution.

I may say, there will no lack of evidence to prove that fight.

For example, there were registrars who testified in hearings before the United States Senate in 1946 that they put to Negro voters seeking to register complicated provisions of the Mississippi Constitution to interpret, that they did not put to white applicants.

One voter who ask if he remembered making the statement, no matter how they, Negroes, answered these questions, that they were disqualified then.

I think I told them in short words that they would have a hard time convincing me.

I think I made that statement.

In the mid-50s, the Court of Appeals for the Fifth Circuit cast out upon the continued usefulness of Section 244 for this purpose because it held in accordance with the rather plain meaning of the words of the original form of Section 244, if you remember them, it always required that you would be able to read the constitution or interpret it.

And upon that ruling, the section became a considerably less effective instrument.

A campaign was then undertaken by white Citizens Councils as we allege in paragraphs 25, 27 and 29 to amend Section 244 for the valid purpose of preventing the further qualification of Negroes.

It’s significant that in the course of that election, the Attorney General of the State explains what had happened very vividly.

Under the present setup, he said as he quoted in one of the Mississippi papers, “If a Circuit clerk refuses to register a person who can read then he is liable for damages in court for depriving that person of his right.”

A clerk in Oklahoma gets sued and had to pay $5,000.

This scared some of our clerks of Mississippi.

And as a result in several counties, the Negroes had been voting in large numbers and then he went on.

“In other words, the only defense, Section 244, we now have is now trembling and we need additional requirements that the clerks can legally impose.

The time is short, the Citizens Councils in each community they are in the position to perform a great service if they can ensure the passage of this amendment.

The amendment was the new version of Section 244.

It is set out on page 106 in the back of our brief.

In its present form it provides, every elector shall in addition to the foregoing qualifications, be able to read and write any section of the constitution of this state.

Byron R. White:

What page?

Archibald Cox:

A 106 of the Government’s brief in number 73 — be able to read and write putting it in the conjunctive and give a reasonable interpretation thereof to the county registrar.

And then it added a new requirement, he shall demonstrate to the county registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government.

Going back to the complaint, after explaining in paragraph 38 as I shall explain later, how the new form of Section 244, this — a virtually unlimited discretion of the registrars to determine the qualification of voters.

Archibald Cox:

Paragraph 41, toward the bottom of page 6 and page 7 of the record, alleges that the defendant Registrars of Voters have used, are using and will continue to use the interpretation test, that’s the interpretation of the state constitution and the duties and obligations test to deprive other qualified Negro — otherwise qualified Negro citizens of the right to register to vote without distinction of race or color and then in the next sentence, it says that the existence and continued enforcement of those tests could — well — is deterring and will continue to deter otherwise qualified Negroes in Mississippi for applying for registration to vote.

The effect of these provisions is shown by the fact that as of the recent count, 67% of the white persons of voting age in Mississippi are registered.

But only 5% of the Negroes —

Potter Stewart:

And that Mississippi has a permanent registration?

Archibald Cox:

Mississippi has a permanent registration.

Potter Stewart:

In all throughout the state.

Archibald Cox:

That is true.

Potter Stewart:

And this is literally permanent once you are on, you’re on forever —

Archibald Cox:

Once you’re on, you’re on.

Potter Stewart:

— whether or not you ever vote?

Archibald Cox:

As I understand it, whether or not you ever vote, which means of course that when you raise the requirement, you are raising them only as to those who haven’t read it.

Potter Stewart:

I see.

Archibald Cox:

There is in fact the Grandfather Clause and you can see where the argument goes from there.

Thurgood Marshall:

Affirming (Inaudible) himself in Massachusetts.

Archibald Cox:

No, we have it in Massachusetts and I assume that it exist in to great many states and I would assume that the requirements may be changed from time to time under circumstances different from these because this of course is one whole picture and may not be properly broken down into its segments.

That really completes the first claim of the compliant which is centered on Section 244 as it now stands to the Mississippi Constitution.

There are the formal allegations of course that the defendants are intending to give effect to Section 244.

And that it deprives people of the right to vote as I just read.

The other three claims carry forward the story of Mississippi’s attempts to prevent Negroes from voting.

I really haven’t time to summarize them.

I would simply say that when the Court comes to read them and we regard them as important, it’s just the problem of time that relate in the Court.

What they clearly shows is a story of action and reaction in which every attempt by the Congress or the United States bringing suit to enforce equal voting rights was countered by the adoption of new laws intended to put obstructions in the path or to raise new obstacles.

Thus, the new requirements that were added in the 1960 and 1962, requiring applicants to satisfy the registrar of their good moral character to fill out the application far unaided a letter perfect in every detail to prohibit the registrars from giving the reason of why a man was denied registration unless it was lack of good moral character, to authorize the registrars to destroy the records of applications and of action thereof which had been maintained previously for years.

Another new statute provided that for the publication of the names of people seeking to register and then a period of time in which anyone might come in and challenge their qualifications including their good moral character.

Or the effect of publication in an atmosphere of intimidation and harassment needs no elaboration.

As I say, I’m going to confine myself to Section 244.

For the purpose of that section in the first claim, of course, the importance of this additional event is that they show that the intent to preserve white political supremacy by denying Negroes effective participation in the political process does continue.

I come back down to the two legal theories on which we urge that the complaints states a cause of action for enjoining the defendant officials and the State from the enforcement of Section 244 as a violation of the Fifteenth Amendment.

Our first theory is that the reasonable interpretation of the Constitution and understanding of citizenship test are inherently engines of racial discrimination as they have been administered just as if the racial discrimination were written into their words.

It’s hardly necessary to ague that Section 244 is so losing its terms as to give registrars virtually unlimited power to choose who will pass and who won’t pass.

Archibald Cox:

For many years, apparently, the registrars were free to put or not put — to test or not test an applicant’s ability to interpret a provision of the Constitution.

I am not sure that that’s true today.

It may not be.

It’s a little hard to tell.

In any event, it is wholly clear today that the registrars select the provision to be interpreted from several hundred possibilities in the state constitution.

Senator Bilbo, again in the hearings in the 1940s opposed that it wasn’t the poll tax that kept Negroes from voting that it was Section 244.

And then he went on to explain fine very vivid language.

The circuit clerks are under oath to protect the provisions of that Constitution, and if there is a single man or woman serving in this important office who cannot think of questions enough to disqualify undesirables then write Bilbo or any good lawyer and he can give them a hundred questions.

One example which struck me which was often given to Negroes was the provision in the Constitution that provides that judges may be removed for a reasonable cause not constituting grounds for impeachment.

I wonder if we can all with a bit of fun think of meaning for that but I wonder how many lawyers can give a — within the bar can give a really accurate interpretation and how many layman in the back of the courtroom could even approach giving an interpretation.

The registrar is also determined of whether the applicant’s answer is adequate or inadequate.

There are no standards in this statute to guide their discretion.

One of the favorite questions put the white voters if I may go into the interrogatories by way of illustration was what does the provision in the Constitution mean that provides there shall be no imprisonment for death.

The answer was, I think that a Nigger should have two years in college before voting because he don’t understand.

That voter was passed does understanding the prevision relating to imprisonment for theft.

It could well be argued I think that such a delegation of power making the right vote subject to the uncontrolled whim of a petty official is unconstitutional on its face by analogy to the familiar cases dealing with the licensing of the distribution of pamphlets or the licensing of the solicitation of memberships for labor unions.

Especially here in an environment of racial hostility and where the racial purpose of the law is plain to all the work.

That was indecently the ground of decision by the three-judge court dealing with a similar Alabama statute which was affirmed by this Court in Davis against Schnell.

We don’t need to rely on that argument, however, because here, the complaint also shows that for years, more than seven decades, the untrammeled power delegated by Section 244 has in fact been administered as an engine of discrimination.

I quote it paragraphs 38 and 41 of the complaint that the allegations are implicit all the way through it.

Excuse me.

Hugo L. Black:

It was denied by this defendant?

Archibald Cox:

There was a motion to dismiss so that all of this is admitted for the purpose —

Hugo L. Black:

They have never — we have to consider that that’s a fact in there whether he denied it or not.

Archibald Cox:

For the purposes of this appeal sir.

Yes.

This aspect of the case, were the allegation of those facts.

We say it’s precisely governed by Yick Wo against Hopkins in 118 United States where the Court held that the law would be fair on its phase to be partial in appearance, yet, if it is applied and administered by public authority were so evil an eye and unequal hand as to practically make unjust and the illegal discriminations between persons of similar circumstances material to their rights.

The denial of equal justice is still within the prohibition of the Constitution.

I would go on and emphasize that our case should even be stronger than Yick Wo.

Archibald Cox:

Here, the practice in using the interpretation test to bar Negroes for voting while registering white citizens with no better qualifications was not solely the unauthorized act of the registrars.

It conformed to the intent.

I am speaking now of intent as we usually use it in interpreting statutes and not of some motive to apply some legislative voting but of intent in that sense.

It conformed to the legislative intent.

At the Mississippi Constitutional Convention of 1890 which the complaint alleges was dedicated to finding ways of disenfranchising Negroes.

One delegate remark, it looks as if it is referring the Section 244 was intended that if I register want a demand to vote, he would read him some — such clause as slavery except as a punishment for crime should be prohibited.

Do you understand this?

Oh yes.

But if he did not wanting to vote, he would read him the interstate clause or the section forbidding the legislature to pass ex post facto laws and demand the construction.

And that is I have shown and as the complaint alleges that I have shown from the complaint was also the intent of the 1955 Amendment which was intended to revive this engine of discrimination.

I’d emphasized too that the same purpose runs through other Mississippi voting laws.

And the conductive scores of state officials as alleged in the complaint.

The 1890 Constitution was described by the Supreme Court of Mississippi as one which swept the circle of expedience to obstruct the exercise of suffrage by the Negro race, the adoption of the Amendments to Section 244 certainly have that purpose.

The laws adopted in 1960 and 1962 are most notably the one calling for the publication of the names of anybody seeking to register.

It showed very plainly that the entire Mississippi government unhappily still persists in the purposes alleged in the complaint.

In short and perhaps I belabor in obvious point, whatever may have been true if only the words were whatever may have been true — if only the words were available, the experience of 74 years shows that Section 244 stands now, not as an invitation to the exercise of the trammeled discretion in deciding who shall vote in a community where every power has been mobilized to bar Negro subjects.

The original intent and the consistent practice have written the meaning in to the words which is well understood by the registrars, the election officials and equally well understood by the Negroes whom they notify that it is useless to apply.

Under those conditions, we submit, any further enforcement of Section 244 in any court is as violated with the Fifteenth Amendment as I will show later of Section 1971, is if racial discrimination were written into the words of the statute.

Here, again, Yick Wo is squarely in point.

As the court — this Court has repeatedly pointed out in later cases, Yick Wo held that not merely the administration of the San Francisco apartment but the ordinance itself was a violation of the Fourteenth Amendment.

We say very simply to say in principle applies here.

It is too late now to attempt to separate the abstract words of Section 244 from demeaning part into them by their framers and by their practical interpretation for seven-and-a-half decade.

After so long period, the defendants can’t be heard to say, well, maybe we could find some way to give these tests a constitutional application.

I think the two familiar principles that confirm this conclusion if any confirmation is needed, what is the role where the very existence of a broad statute unconstitutionally in some of its applications, operates as a restraint upon the exercise of fundamental freedoms, then the Court will invalidate the whole statute, enjoin its enforcement in total without casting about to try and sever and save little bits of it here and there.

Smith and California is perhaps one of the best statements of that rule.

The familiar cases deal with speech and freedom of association, which surely, the right to vote is entitled no less protection.

For 74 years, Section 244 has been an instrument for defeating the efforts of Negroes to vote without distinction of race and color.

It is highly speculative whether it could be given any meaning non-discriminatory and therefore constitutional application.

Its continued enforcement carries inherent in it inescapably a threat of continued racial discrimination.

And under some circumstances, we say, the Court should remove the entire barrier if we prove the allegations in the complaint by enjoining the defendants from acting at anyway, carrying out Section 244.

Archibald Cox:

The second supporting principle —

Byron R. White:

Well, Mr. Solicitor General, we have the Court said about the case about Yick Wo that perhaps the case was held unconstitutional on its face that was applied in such a way by the guaranteed Equal Protection Clause.

Is that what you’re saying?

Archibald Cox:

Well, I think, we say very much what the Court said in Yick Wo.

We think that this statute might well be held unconstitutional on its face.

We don’t press the point particularly because we don’t need to, because we say that in — it has been enforced in such a way four years as to show that it is an engine of discrimination.

And we say that as the Court held in Yick Wo and on the face of that record, the statute like the ordinance in Yick Wo should be held on constitutional.

We have cited in our brief half a dozen occasion on which this Court said that the ordinance had been held unconstitutional in Yick Wo as well as the practice under it.

And I’m suggesting essentially two principles that I think support it.

One is the principle stated in the Smith case that whether a statute unconstitutional in some of its application or where it’s an area of fundamental liberties or where it is in — and where its existence operates as a restraint upon those liberties then the Court will strike down the whole statute.

I think much of that reasoning lest it was at the bottom of the decision in Yick Wo.

Then the second supporting reason we suggest is the familiar role that once a wrong is proved and here, the most serious wrong then in order to provide effective relief, the court of equity will enjoin whatever conduct is necessary to give complete relief.

And it may enjoin conduct withstanding by itself and in another context reviewed abstractly might have been held to be loved and it seems to me that that principle which perhaps we encounter most often in antitrust cases purports a general equitable principle.

You can find it in an unfair competition cases and others is also applicable to this kind of case.

Tom C. Clark:

Mr. Solicitor General, what is the relevancy of the disparity in the educational systems to this point you are not (Voice Overlap)

Archibald Cox:

Well, there are the — yes, let me give a little larger answer than to your immediate question.

The complaint was framed on a number of grounds and I don’t want to indicate that we waive them.

We’ve stressed in our brief, the two I emphasized here, those are the ones we principally rely.

But the draftsman of the complaint had some other various in mind as well as this.

I think these fairly appear.

One of them was that in a state where there has been systematically different education for white children the Negro children.

Then to apply an understanding, a civic test to put in short hand is itself discriminatory because you have educated one group to pass it and you haven’t educated the other.

Tom C. Clark:

Even if that test were equally applied?

Archibald Cox:

Right, now the second theory that enters in — that entered into the complaint was that this test requiring you to interpret any provision of the Constitution is not reasonably related in any sense to qualification to vote and therefore doesn’t come within the states normal power to fix the qualifications of elected.

I think there was also a theory which I have alluded to and not withdrawn from although I say we don’t emphasize it that the statute was unconstitutional on its face for the reason that it was so vague too.

But that was the reason that was in the case and as I say, we don’t drop it out but to get by the motion to dismiss, we don’t to rely upon it.

Potter Stewart:

How many states have statutory or constitutional provisions similar to this?

Archibald Cox:

Louisiana of course involves the next case.

Mississippi, Alabama attempted to adopt one.

I am not familiar with any others.

Potter Stewart:

I am not referring to state which misused them or abused them.

I’m just a talking about —

Archibald Cox:

No, I don’t think there’s — I don’t think any — there are states that have literacy test.

But I don’t know of any state that has this to interpret any provision of the state constitution.

I’m told that South Carolina has one.

Hugo L. Black:

— your time is limited and I don’t want to take any but it seems to me that it might be a very vital distinction as to whether the Court decides if it’s going on its faith to avoid in this operation insofar as your relief is concerned.

If all the relief granted would be and I don’t do this discriminatorily, it would be quite a different relief saying you can’t do it all.

Archibald Cox:

Well, we don’t think that we have to show the statute is void on its face.

The words abstracted from the events, it ordered to obtain relief that says “don’t give any effect to that statute”.

We think that the lesson of Yick Wo is that where you have this long period of administration which writes a gloss on the statute for everyone to see that that becomes part of the law, that practice that you would join giving any effect to the statute.

So I was saying we think that’s the lesson of Yick Wo.

We think it’s the principle of cases like Smith against California which is applicable to the voting cases.

We think we’re entitled to adhere as I was attempting to elaborate a moment ago on the principle that even if the statute conceivably could have been given some proper application on its face once that we’re entitled enjoin the whole thing to give us effective relief.

Hugo L. Black:

You would undoubtedly be entitled there if it’s going on its face.

Archibald Cox:

Well, I think we’d undoubtedly be entitled to it even if it isn’t quite on its face.

Hugo L. Black:

I understand that but the arguments are different.

Archibald Cox:

Yes, right.

Hugo L. Black:

There could be no argument against it.

It could be held void on its face.

Archibald Cox:

And we think that as I suggest —

Hugo L. Black:

I understand that.

Archibald Cox:

— but if —

Hugo L. Black:

Yes, I understand that.

Archibald Cox:

But I would like to emphasize that even if it isn’t quite (Voice Overlap).

Yes, at the principle, I don’t think I should take more time to elaborate it but the principles that we have cited the case in our brief is that your are entitled to effective relief quite frankly after some years of experience, we find that efforts to deal with discrimination case by case by case move so slowly and they are so difficult to prove that — that they perhaps ultimately will remove the obstacles which they would turn that kind of relief that would simply leave Section 244 as an obstacle that people might eventually get over rather than wiping away the fundamentally wrong interest.

What was the relief you’re asking from this Court as an opportunity to try your case —

Archibald Cox:

We’re asking an opportunity to try our case.

Not that the statute should be struck down on its faith.

Archibald Cox:

I would be happy to have that relief but we have not pressed it.

You have not pressed it.

Archibald Cox:

We have not pressed it.

Well, I read your brief and it’s indicating that you are pressing the other as almost exclusive.

Archibald Cox:

Well, we intended to not to wait.

Not to abandon the other.

Archibald Cox:

We intend not to abandon it Mr. Justice but we do not press it.

I think that’s the other statement.

Now, our second independent reason which also goes I think for the question of relief Mr. Justice Black for attacking Section 244 as it stands today and for attacking if one can conceive it that theoretically fair test of ability to interpret the Constitution.

Is that to apply new and radically different standards to people who are not registered today in a community where only 5% of the Negroes who are eligible — old enough to vote have been allowed to register and something like 67% or 70% of the whites are already permanently registered is itself discriminatory as to who is prevented to vote which is what you are concerned with.

Because it means that the Negro the previous victim of discrimination is now in fact compelled to pass a higher — a different test that was applicable to the white citizens.

And in principle of course this is just Gwynn against the United States, Lane and Wilson as the principal has been adopted by the courts in this Fifth Circuit for some period.

Now, that ground which perhaps we would have to prove our facts in order to be entitled to that relief that relief would certainly strike down Section 244 or any application of 244 which would be bound to be a new in different test today since there has been no uniformed valid test in the past.

Arthur J. Goldberg:

This is the problem which Judge Wisdom (Inaudible) hearing.

Archibald Cox:

Yes, yes.

I turn now to the ruling of the District Court that the United States is not entitled to maintain this action.

Under Title XLII of the United States Code, Section 1971 and that appears in my brief beginning at page 99.

Section 1971 provides leaving out the unimportant words, all citizens of the United States who are otherwise qualified by law to vote shall be entitled and allowed to vote at all such elections without distinction of race, color or previous condition of servitude.

Any constitution law, custom usage or regulation of any state or territory to the contrary notwithstanding, then you’ll notice that subsection C, authorizes the Attorney General to sue for preventive relief in the name of the United States whatever any person has engaged or the reasonable grounds to believe that any person is about to engage, in any act or practice which would deprive any other person of any right or privilege secured by subsection A.

The same allegations which charges the enforcement of Section 244 violates the Fifteenth Amendment, the ones that I’ve just developed of bringing the case within Section 1971 (a), giving effect to the reasonable interpretation in citizenship test is certainly an act or practice to its conduct by the state officials and the people who give effect to it.

The state officials named as defendants are obviously present to subject Negroes seeking to vote to discriminatory test of their qualifications, deprives them of the right to vote without distinction of race or color.

Only other requirement is certainly met by the complaint which alleges with sufficient clarity that the victims of the discrimination were otherwise qualified to vote that is to say they met the non-discriminate — they met the test applied to white citizens.

Indeed, those allegations as I pointed out earlier, are summarized almost in the words of Section 1971, in paragraph 41 of the complaint.

One can look at it in its original form on page 7 or as it was amended over on our 66.

It makes no difference in this instance because the passage I have in mind is both.

It said the registrars have used or using and will continue to use the interpretation test and the duties and obligations test to deprive otherwise qualified Negro citizens of the right to vote without distinction of race or color.

And then in the next sentence, it spoke of the existence and the enforcement of those tests as deterrent otherwise qualified Negroes from applying for registration to vote.

You’ll find over in paragraph 42 (b) that the allegation is that Section 244 perpetuates prior discrimination against Negroes from possessing similar qualifications to those of the whites who were permitted to register and vote.

It goes on to describe Section 244 as an engine of discrimination.

Now, certainly, we weren’t required in the complaint to list all the events that we required — that we relied upon to make out the practice of consistent interpretation that we alleged.

Most of the particulars that did come out from the answers to interrogatories, of course ever since they got those particulars, the appellees have been alleging that they weren’t part of the record but they have them available.

Now, the appellee raises a number of objections to the application of Section 1971, which I must confess, it seemed to me, almost frivolous.

Archibald Cox:

But, in order to try to do them justice, I want to take them up as they’re set out in the brief for the defendant registrars.

At first, they say from pages 14 to 19 that Section 1971 authorizes only a proceeding for preventive relief.

But one under the request we made here is that the defendants be enjoined for continuing to give effect to this — to the statute.

I can’t think of anything that it is more preventive than continuing to give effect to that statute.

We did ask for some other relief, and we think we’re entitled to it.

We think it’s preventive but, whether it is or not, it doesn’t need to be debated at this stage of the case because we certainly did include at that appropriate request that I’ve already mentioned.

Then going on page 19, the appellees say, “The Attorney General has had no standing under Section 1971 to attack constitutionality”.

And under that, subsection C does not attempt to invest the Attorney General with authority to attack the provisions of a state’s statutes.

It speaks exclusively of acts or practices of persons.Well, of course, to take it literally, it seems to me that that is a fantastic argument of why you speak of enjoining the enforcement of the statute.

It’s simply a shorthand for referring to the acts and practices of the enforcement officials to the conduct of the state officials giving effect to it.

To say that the Attorney General has no authority to attack the constitutionality of the state’s statute under this section, which say that for Mississippi to pass a law which in terms discriminated against Negroes in voting could not be attacked by the United States under Section 1971.

But surely, that is not either the language or the intent of Section 1971.

Even the appellees have seem to find that argument a bit sticky because they go on and say on page 22, “We would not contend that a state could put unconstitutionally discriminatory action by a registrar beyond the reach of a proper proceeding for preventive relief under 1971 by passing an act attempting to authorize the discrimination.

The proper way such void law should be said if not, would be a proceeding against the enforcement official, the registrar to enjoin and prevent his application of such statute”.

Well, we’ve asked that the defendants be enjoined from enforcing and giving any further effect to the statutes.

I can’t believe that anybody seriously distinguishes between the word applied to the statute and our choice of enforcing or giving effective.

And we have joined here some defendant registrars.

I suppose that this juncture, the appellee might say, well, the passage that the Solicitor General just read, deals with the statute unconstitutional on its face.

And, we didn’t intend it to apply to one which is unconstitutional when it’s consistent in the interpretation it showed.

But that point, I’d come back again to the words of Section 1971 that suggests that a distinction, if that’s what they mean, is irrelevant.

Section 1971 as this word show is concerned with acts or practices depriving otherwise qualified citizens of the right to vote but without distinction of race or color.

It doesn’t matter how it’s done, it may be done by an official or acting contrary to state statute.

It may be done by an official on carrying out his duty under a statute which commands discrimination on its face.

Or, it maybe done we say and certainly this is true so far as the words that 1971 go, by an official, giving effect to a statute which is unconstitutional because of the rubric written on it as well as its words or by years of actual practice.

Now, if our substantive theory were wrong on that point, then of course, it wouldn’t come under 1971 (a).

But, if our substantive theory is right, clearly in its action to enjoin these officials, thus come under Section 1971 Act.

Now, I’ve already stated our reasons for arguing that we’re right and there’s no need for me to elaborate it further.

The other point that I have time to devote myself to is the argument raised by the State of Mississippi, that we have no right to join Mississippi as a defendant.

We did join her because the basic wrong in this case is the deliberate, as we see it, long continued violation of the Fifteenth Amendment by the enactment and operation of racially discriminatory voting laws, enacted for the purpose of preserving white political supremacy, action in which all the arguments of the State have joined and action as we allege taken throughout the State of Mississippi.

In joining the State as a defendant and I want to emphasize this, we joined the State.

Archibald Cox:

We refer to the State in exactly the same sense that the word state is used in the Fifteenth Amendment and many other provisions of the original Constitution as well as other amendments.

We think to joinder is clearly proper under the second paragraph of Section 1971 (c) still on page a hundred of my brief.

It provides that whenever any state official is alleged to deprive anyone of the right to vote without distinction of race or color, the act or practice shall also be deemed that of the state, and the state may be joined as a party defendant.

The evident theory of the provision is that when the suit is brought by the United States, the State may be treated as other corporate bodies that held responsible for the acts of its officials within the scope of their agencies — scope of their employment.

It’s in this sense that we seek a decree against the State of the practical aim, and of course the practical consequence, is to hold the State responsible and to enjoin all the persons, the agents for whom the State might act for the continued interference with voting rights in violation of — under Section 244, as just as one who would obtain a similar decree binding any other corporate body pursuing a collectivity here a group of people in their organized capacity and organized governmental capacity in this instance, not some abstraction.

Byron R. White:

I gather Mr. Solicitor General that you couldn’t have sued the State alone here.

Archibald Cox:

Well, the next — if the registrar had resigned —

Byron R. White:

Well, yes but I mean we could.

Archibald Cox:

We could.

Otherwise, I think that we have to join some registrars, yes.

Byron R. White:

And, if —

Archibald Cox:

Well, let me just qualify that — that the qualification is important to this case but this is always the future.

We couldn’t under Section 1971.

Byron R. White:

That’s my question.

Now, under 1971, I take it that even if you hadn’t enjoined the State here, you think you could have maintained this suit against all these registrars in this Court?

Archibald Cox:

Yes, in the District Court, yes.

Yes.

Byron R. White:

And all the State — and all the other officials in the State.

Archibald Cox:

And the other officials that we named, yes.

And perhaps — and other officials charged with –.

Byron R. White:

If that has been your problem or anything else?

Archibald Cox:

Well, there is that argument which I prefer to leave to the briefs about whether to joinder was proper.

We think that this — that the statute and the common purpose brings this within the provision of the rule as to joinders.

Byron R. White:

Joining the state, that argument remained the same whether you join the state or you don’t, doesn’t it?

Archibald Cox:

Yes.

I think so.

Also, yes.

Also, I may say that these people would all be bound by a decree against the state even if they hadn’t been personally joined because the decree against the state of course will cover its agency so that the question of the other people would become moot in the sense if the decree went against the state.

Byron R. White:

And under 1971, the — I take it, the United States could not sue the State of Mississippi and its registrars to — to declare the statute void on its face unrelated to its applicants.

Archibald Cox:

Well, if — even declaring the statute void on its face, it usually requires that allegation that someone has done something to enforce it.

Byron R. White:

That there’s a threat of the enforcement?

Archibald Cox:

Yes.

Well, that would be enough to bring the case within 1971 because we would have in the words of 1971, reasonable grounds to believe that the person was about to engage in an act or practice and —

Earl Warren:

Well, they could have sued the —

Archibald Cox:

Well, no.

Wait a minute.

I overstate it.

I misspoke myself.

The word about to engage apparently isn’t carried forward into the second paragraph.

It is in the first paragraph.I thought it was in the second, but as I look at it very quickly, it’s not in the second.

So, I suppose we would have to allege that somebody did something.

But, we certainly have alleged that here many, many times.

The United States do have the statute.

Archibald Cox:

We say that we can but we don’t — we don’t think we need to rely on that because this is a much easier argument.

We haven’t briefed it.

Again, I’m — I just don’t want the same to waive something that might someday be important.

William O. Douglas:

That’s the depth problem and also as in Barnett the United States suing of an attack.

Archibald Cox:

Yes.

Also that would not be quite — again, it would not be quite the same as this.

We thought that as an easier problem than this one would be.

The Court — both the District Court held in Section 1971 was not applicable simply because it thought there would be some constitutional doubts about its validity.

If it were construed to cover this case, we think that the ruling was wrong for four reasons.

The first place, it flies squarely in the phase of Section 1971.

The Statute says, whatever it is alleged that the state official has deprived anyone of this 1971 rights, then the act or practice shall be deemed that of the state, and the state maybe joined as a defendant.

There’s simply no room for interpretation.

The case squarely fits the word.

Second, what little legislative history there is, as we showed in our brief, indicates that the Congress intended the words to be given their natural scope.

At one stage, the Bill was more narrowly drawn to cover the specific problem of what had been raised in United States against Alabama of registrars who would resign pending suit.

And the Bill was introduced to cover that problem.

And in the hearings, it was said, well, there are a lot of other things that may happen.

Archibald Cox:

And as a result, Congressman McCulloch came in with a new Bill which contained the present language.

We think on those facts, it’s certainly a fair inference that the language was intended to have its full scope and avoid all these problems.

Third, there is not the slightest constitutional doubt that the United States may sue a state.

I argued such case here only in December.

There are many occasions, ever since United States against Texas in 143 United States on which it’s been held that a state has no immunity from suit by the United States.

Fourth, there is no constitutional principle that a state, being a perfect idealism may commit no wrong.

There are many provisions in the Constitution, indeed in the original Constitution that are plainly addressed to states, things that only a state could do like entering into a compact with another state, enacting an ex post facto law, enacting a law impairing the obligation of contract.

And this Court has said that the Fifteenth Amendment was intended to have the same impact on the state as those original provisions.

It may well be that Fifteenth Amendment certainly took account of the fact that states could deny the right to vote without distinction of race or color.

It may well be that the consequence of the Fifteenth Amendment is that an effort to authorize someone to engage in that discrimination does not confer upon in the sovereignty of the state.

So that he cannot be sued under the Eleventh Amendment.

But, it certainly doesn’t go in the theory that there’s no way in which a state can commit a violation.

And if as it has been held that a state may be sued by the United States for breach of contract, for wrongful occupation of property, for tort, for taxes, for interfering with the activities of federal officials, then certainly it can also be sued for violating the constitutional rights of citizens.

I’d like to save the rest of my time.

Earl Warren:

Mr. Clark.

Charles Clark:

Mr. Chief Justice, may it please the Court.

At the outset, I think it’s appropriate for me to emphasize that I am not going to stand before this Court and contend that the Fifteenth Amendment is not in the Constitution nor am I taking the position with you that the legal effect of our motion to dismiss was not to admit the allegations of the complaint.

Although, there is an answer on file, in which these allegations offer the most part to deny it.

I think that the single issue that is really worthy of this Court’s time and attention in this case is the issue of the constitutional and statutory ambit of the Attorney General’s authority to have brought the suit that was dismissed.

This, I think, is the point at issue that is before this Court today.

I think that its resolution involves a rather complex relationship created by the Constitution between the central government and the 50 states.

And I don’t think that you can decide this case on Mississippi facts and wind up with a rule of statutory decision that will fail to effect the relationships of the central government and each of the other 49 states besides Mississippi.

I think this is the real importance of the case.

And I think this is the issue that the Court should consider, because I think that — well, it’s not my opinion, the opinions of this Court have held throughout the history of this Court, that the proper demarcation between where the central government ends and where the states begin is the fundamental of a Federal Republic.

This Court is the surveyor.

And I’m saying where you’re going to lay the line, I wish you would bear with me in my argument by recalling throughout, that the able and the eloquent Solicitor General of the United States is constantly before this Court.

He’s here in Washington all the time.

He presents a consistent argument for the extent of federal power.

The states who are here ad hoc by different counsel and certainly, less able counsel to hand their side of the picture to the Court in bits and pieces, and not as a consistent and uniform whole.

And, I hope as I say that the Court will bear with me in my argument with that thought in mind — thank you Mr. Chief Justice.

Charles Clark:

It is the position of the State of Mississippi that this suit could not constitutionally be instituted against the State.

And perhaps it would be wise on this exact point to begin with a negative.

The State of Mississippi is not invoking sovereign immunity nor is it invoking the constitutional bar of the Eleventh Amendment.

This is not the concept of the State’s defense that this suit could not be constitutionally maintained against it.

What the State says is that this Court did not commit a violation of the Constitution when in Eleventh Amendment cases it said that the State is separate from the individuals who compose its government.

And therefore when the same Constitution that contains the Fifteenth Amendment bar against a state commits a wrong through individuals that this is not the State’s wrong that the sovereignty of the State has not wronged an individual but rather an errant official has wronged that individual.

And the individual has a right of action against him even though the majesty of his office had to be present so that he could accomplish his wrong doing.

If any other theory is valid and I with that most difference just so it will be the most pointed analogy that I could make.

When evil man could sit in a chair on this Court and make the Court evil and that’s not possible.

The Court is something more than the people that sit in these chairs.

This is not possible for any officer to do to his office.

He’s the wrongdoer.

Byron R. White:

Well, Mr. Clark, I think your point would hold that your argument would be made against anyone suing the state whether it was the United States suing the state or anyone else.

Charles Clark:

Yes, Your Honor, for the point of the — of making an accusation of wrong doing.

Now, there are cases when the state is the repository of title to lands when the State holds property that’s involved in the suit that it might be a legal defendant but where the accusation is a wrong has been done.

Byron R. White:

Civil or any other — any kind of a wrong?

Charles Clark:

Particularly, Your Honor, my mind really hasn’t gone beyond the contrast of the case.

This is a criminal wrong if it’s wrong at all particularly not a criminal wrong because as between sovereigns, there can be no law of crime.

Byron R. White:

Well, then to the extent that there are any statutes or on the books now which purport to give federal courts jurisdiction of suits against states.

Those statute are to that extent unconstitutional to the extent that they purport to allow a state as the state could be sued except in that limited category, you might say that were like entitled to the property and things like that.

Charles Clark:

Well sir, it goes further than that.

It goes of course to the point where if a commission of a wrong involves a breach of the Constitution.

And the sovereignty of the State is involved then obviously, the Constitution gives a remedy.

But my point with you sir is that in a criminal wrong and a wrong of this type, the sovereignty of the State can’t be involved, it’s the officer.

And I think this is 1971, the basic jurisdictional statute that the governor — that the Government relies or the authorization statute is not jurisdictional theory.

This is shot through with recognitions on behalf of Congress that this is the constitutional point because it talks of actions of individuals when persons commit wrongs then it says, “Any law of the state is to be taken to the contrary notwithstanding unless right of action goes beyond the law given by the state.”

Byron R. White:

I don’t see why your contention doesn’t have then — have to carry the saying that 1971 is unconstitutional.

Charles Clark:

No sir, I don’t.

Byron R. White:

Because it permits — it permits joinder of the state and at least of its circumstances as a state.

Charles Clark:

It permits in my opinion sir and this was a little bit later in my argument but I’ll get to it now.

Charles Clark:

It permits the joinder of a state.

And the problem before Congress when this language was put into the enactment laws.

A problem whereby a registration official had resigned and nobody would take his place.

Byron R. White:

But I don’t see how that changes the — the character or the thrust of your argument about the ability to make the state a party in a suit like this.

Charles Clark:

There’s no claim in that instance if Your Honor please that the State has done wrong.

It is certainly a vehicle for writing discrimination that the Constitution forbids because there is no person against whom that wrong can be right.

And therefore it says, in this instance, in the instance where there is nobody there, the action can be instituted against the State.

And it’s a concept of what they meant by the word join really.

Byron R. White:

And you would say that the constitutional provisions purporting to extend the judicial power to suit against states and certain — certain circumstance have to have these blocks to put on it.

But that this excludes, necessarily excludes suits against states of this type.

Charles Clark:

Suits against states where crimes are charged.

Because every time —

Byron R. White:

Or violations of constitutional — of the Constitution?

Charles Clark:

Yes, sir.

Because both have to be entwined because the State itself can’t violate the Constitution any more than the United States can violate the Constitution.

Byron R. White:

So no state can constitutionally be sued where a violation of the constitutional right is alleged.

Charles Clark:

Yes sir.

Well, it is alleged and it must Justice White, where it is alleged that the vehicle of the sovereignty of the State did this.

And this is why I make a distinction in —

Byron R. White:

That’s just involved in suing the State isn’t it, when you say this —

Charles Clark:

Well, sir —

Byron R. White:

— in the State of Mississippi and alleged that there has been a violation of the constitutional right?

You say the State as it stated that its governmental or sovereign capacity can’t commit a wrong like that and it can’t be sued.

Charles Clark:

In its sovereign capacity not its governmental capacity and the distinction would be that the people who constitute the Government, can never so absent themselves from the State or from the area by death or by resignation or by any other force that they can defeat the right to correct the constitutional wrong.

But it was their wrong and when you — when the Congress permits the states to be — the State to be sued as an action instituted against them where a man has done wrong and then the left, it’s not to correct the sovereignty is wrong, it’s to correct the wrong of the man that’s no longer there.

And it’s not a charge against the State.

In other words, it’s not a force sir that could destroy the State which is exactly what this Court — what this case could do.

It could say, “You’re no good Mississippi”.

And that’s not possible any more so than it would be for Mississippi to say to the United States, you are no good.

Because this is a compact, this Constitution is a compact, a contract, an agreement that the United States cannot violate.

Charles Clark:

And if it does, it’s wrong.

But it’s the wrong of its individual officers.

So much so that when Secretary Forrestal was sued in Mine Safety Appliances versus Forrestal.

This Court was careful to point out that it was not his act.

I mean it was not the act of the United States that was in — in issue.

It was the act of an individual and if he had taken something from somebody because he was an officer of the United States, he was the one that was liable not the United States.

The United States wasn’t even in this principle part of the suit and sovereign immunity didn’t prevent in going forward.

It was very clear on that.

And if I might, while we’re on this question of joint.

1971 has two different aspects and I claim that the Attorney General has just turned them apparent thought before in his effort to show what cause Constitution.

1971 says that where this individual action has taken place, the United States can sue a registrar and it gives them permission to jointhe state.

Then it points out, when the official is no longer present and then it can be instituted against the State.

The constitutional conception of that language is that the Congress solved the problem that it had before it.

And that was — first of all, they had the language written, if the man is no longer there it can be instituted against the State.

And that is what I just explained to you.

Then the suggestion was made, “Well, what if after the institution of the action or against the individual registrar he then resigns or then dies or he’s no longer available so that this individual relief can be granted against him”.

So Congress came back and said, “We’ll permit you to join the State.”

And I say that joining was used in the sense of it onto afterwards, join when it became constitutionally necessary to join.

But here, the thrust of this action is, the State was wrong and that all that occurred is they picked six registrars and pasted them on to the suit, the thrust of which is against the State of Mississippi and I would say it’s an action instituted against the State to which registrars at random were joined.

Not an action against the registrars where it became necessary to join the State.

And at the outset too, I might point out to the Court that it’s my contention that this in any way enfeebles 1971 or stops the writing of constitutional wrongs if registrars are available, if the man who bring the wrong into being or that and then they can be sued and their actions corrected in suits against them and it’s not necessary to bring the constitutional issue of an attack on the sovereignty of the State of Mississippi into the case at all.

Earl Warren:

Doesn’t — Mr. Clark, doesn’t this section that you’ve just been talking about provide for two different situations, one that says that they may join the State with the offending officer and if prior to the institution of a proceeding such official has resigned or has been relieved to his office and no successor assume such office, the prosecution — the proceeding may be instituted against the State.

Now, doesn’t that — aren’t they dealing with two different actual situations there?

Charles Clark:

Yes, Your Honor.

Earl Warren:

One, where he is a law office where they can join the state with him and the other one where there is no officer and they can sue the state alone.

Charles Clark:

I agree with you too hastily because I did not know that you were going to explain your thought in the way that you subsequently did.

The answer to your exact question would be, no.

I would say that the only constitutional concept of join in the first part of that statute sir would be to join him in the existing action against the registrar when and if that registrar became unavailable.

This was the problem opposed to Congress and I would say that they did — they did not do anymore than to solve the problem presented to them.

Earl Warren:

Well, I’m not — I’m not talking about the constitutional concept.

Earl Warren:

I’m talking about the language of the section itself.

Does the language clearly imply two different actual situations there?

Charles Clark:

Two different factual situations —

Earl Warren:

Yes.

Charles Clark:

Mr. Chief Justice but not two different factual situations defined as you have defined them sir.

In other words, as I say, I think our difference would be in the meaning of the word join.

You were thinking of join as now bringing an original joint action against.

And I’m thinking of the word join is add onto an existing lawsuit where a disability of the defendant has occurred.

Earl Warren:

Yes, let’s just — let’s just read it.

Whenever a proceeding instituted under this subsection any official of the State or subdivision thereof is alleged to have committed in any act or practice constituting a depravation of any right or privilege secured by subsection A of this section.

The act or practice shall also be deemed that of the State.

And the State may be joined as a party defendant.

Now, if it stopped right there, wouldn’t you say that in filing an action against the officer that they could also file against the State?

Charles Clark:

Yes, sir.

Earl Warren:

All right.

Charles Clark:

And stop there so I think you would have had an entirely concept and the rest of the statute could (Voice Overlap).

Earl Warren:

Yes, all right.

(Voice Overlap) Now, it goes on though and it says, “And if prior to the institution of such proceeding, such official has resigned or has been relieved to his office and no successor has assumed such office, the proceeding may be instituted against the State”.

Charles Clark:

Yes, sir.

Earl Warren:

Now —

Charles Clark:

Mr. Chief Justice, the —

Earl Warren:

Now, how — how do you derive from that if the Congress hasn’t set that the State may be joined with the offending officials?

Charles Clark:

It’s the concept of the word join sir that we have our difference about.

If your concept of the word joined were the — were the one that will finally be interpreted to stand and then the balance — the whole balance of that statute about if he is not there, if prior to the institution that he — of the suit he has resigned, this wouldn’t mean a thing.

It wouldn’t add anything to what Congress had done and the words of the Court.

It would be cutting a little hole in the fence for little cats when they already cut a big hole for big cats.

Because if they’re going to give a joint right of action against the State, why do they even have to bother to provide that there may be some other kind of action on the happening of different circumstances.

Earl Warren:

Well, because — because if there is no — if there is no individual who can be sued because he is out of office then the Government can proceed solely against the State.

But otherwise, he can — the state can be joined with the offending officer.

Charles Clark:

Yes.

Earl Warren:

I — well, I just inquire of you if it doesn’t have that plain meaning.

Charles Clark:

I wish we could — I wish I had — I could communicate but there’s a difference between us and —

Earl Warren:

But we won’t argue that I had merely asked the question.

Charles Clark:

This might be an appropriate time also, if the Court please, to discuss word deem.Of course this — this has a completely different legal significance than the one we’ve been talking about.

In the income tax field, the Government, particularly — excuse me, not income tax but the field of taxation and the precise area of estate taxation.

They were going to deem any gift made within three years of death to be in contemplation of death.

And that deem meaning, has a conclusive presumption was stricken down by this Court in Hannah versus Donald (ph).

And one point also in that case was that just because the Government would find it more expedient to have this deemed into being was no constitutional reason to create an irrebuttable presumption.

So this business of deeming the action of an officer of which is wrong, which cannot become the action of the State, to be the action of the State is an illogical presumption, an irrational presumption and one is made conclusive by the operation of the statute and one is clearly impermissible under the rules of other cases in this Court.

Arthur J. Goldberg:

(Inaudible)

Charles Clark:

Yes, sir.

And this, this is — Mr. Justice Goldberg, this is the real difference.

State action is covered by the Eleventh Amendment.

State action is covered by the Fourteenth Amendment.

State action is covered by the Fifteenth Amendment.

But how can you say that this Court chose to give a different meaning to the Eleventh Amendment state action than it chose to give to the Fourteenth or Fifteenth without saying that this Court was just playing with the Constitution.

As the Solicitor General said, state in his conception means the same thing throughout the Constitution.

State means in the Fifteenth Amendment what it meant in the Eleventh Amendment.

And under the Eleventh Amendment cases, this Court holds, an individual can commit state action.

But that action is not the act of the State and there’s more in this than just a play on words.

This is a deep fundamental constitutional principle.

Because if the United States can hold a state wrong, its sovereignty wrong, then it can punish that state, it can punish the sovereignty of that state.

And it has within its power, the power to destroy the union and this was not given by the Constitution.

This was something that they’re — the frame of the Constitution by and large granted.

Although at that time, they thought that it was the states that were going to wind up dominant in our federal system.

Alright, at this point on the question of state sovereignty, let me read to you from a brief filed earlier in the same case by the Government to show the concept of the lawsuit insofar as they are concerned.

The ultimate sovereign, the United States of America, in the name and through its officials, attacks the conduct of a lesser political entity, the State of Mississippi, which is sovereign only to its subjects and coequals, this is the position of the Government in this lawsuit that the United States, as a central government, looks down on its lesser political entities, the sovereign states.

This Court in Farrington versus Tennessee said, “Every state has a sphereof action where the authority of the national government may not intrude,” within that domain the state is as if the union were not.

And what I ask this Court to do is to survey where that line comes, this is the issue.Where it is the states domain?

Arthur J. Goldberg:

Mr. Clark, (Inaudible)

Charles Clark:

No sir.

Arthur J. Goldberg:

(Inaudible)

Charles Clark:

Because the operation of the Fifteenth Amendment has been held by this Court to be self-executed when it came into effect, there were a number of states that had provisions in their franchise laws, every white male citizen that has certain qualifications is entitled to vote and this Court has held it on the day that that amendment came into effect, white disappeared.

The Gwynn case that the Solicitor cited has — I won’t take time to read you the quotation, you know it better than I do, has exactly that meaning and when the Nineteenth came in to being — the Nineteenth Amendment came into being, male disappeared.

This — but, let’s suppose or even further.

Let’s suppose that the registrar said, “I never heard of any Fifteenth Amendment.

The law of my state says white people only and that’s what I’m going to apply.”

Who’s wrong is that when I colored citizen otherwise qualified under the state laws comes up and presents themselves and the registrar says, “that’s my law, you can’t vote”?

Who committed the wrong?

Did the sovereign state commit the wrong or the man who occupies the office of the registrar commit the wrong?

This is the — this is the distinction that I would make to you sir about state action.

He committed state action because he was the official who had the authority to register or not register but not the State.

Arthur J. Goldberg:

(Inaudible)

Charles Clark:

No, sir.

You can’t bind the state to a criminal act by being a member of the legislative branch of government as opposed to being a member of the executive nor of the judicial.

Under the concept that I’ve seen Mr. Justice Goldberg is necessarily inherent in the constitution.

Arthur J. Goldberg:

(Inaudible)

Charles Clark:

The State cannot do that.

The officers of the State did it.

Somebody, I mean some Governor or some Captain or Commander of the Military, made that decision.

The State of Mississippi doesn’t attack the United States any more than the United States attacks a state.

The Government of the states can be wrong just exactly like a false preacher can be wrong or a false judge can be wrong.

But his office can’t be wrong.

Byron R. White:

When — except for the owner’s gift of property when — when do you think the state ever takes any action in your defense?

When the — I guess you just never can see a state acting.

You can never discover any state action except in ownership of property.

Charles Clark:

Excuse me.

We’d have to change state action because I would say state action is obviously something that subject to correction because state action is what the officers do.

But the State is indivisible.

I mean, the State is — well, I don’t know that the words that have been used don’t really mean too much, ideal, intangible, invisible, immutable.

Charles Clark:

It is there as a constitutional concept as a repository of sovereignty.

As something that will continue despite the death of models, despite their wrongful action and maybe there is no time, at least in all candid, nothing has occurred to my mind of your question to me now of an action in which there was a state, asserting its sovereignty but subject to suit other than (Voice Overlap)

Byron R. White:

Under the Fourteenth Amendment which forbids a state from doing something — from discriminating for example.

Charles Clark:

Yes.

Byron R. White:

That uses the word state.

Charles Clark:

Yes, sir.

Byron R. White:

It doesn’t say state action.

It doesn’t say state officials but simply state.

Charles Clark:

That’s right.

And then when — and then in the suits where a man came along and said, Joe Smith, the registrar used a Fourteenth Amendment example if that’s what’s on your mind.

Joe Smith denied him equal protection of the laws.

He violated the Fourteenth Amendment.

And then the defense is made — this is —

Byron R. White:

Why is that the State?

Charles Clark:

This is not the State, sir.

Byron R. White:

Well, then the Fourteenth Amendment then you wouldn’t have enough cause of action of the Fourteenth Amendment.

Charles Clark:

Yes, sir because they say under the Fourteenth Amendment that what this is, is state action; just like the Eleventh Amendment says the same thing.

You can’t come along and say, you can’t sue Joe Smith if he deprived you of equal protection of the law because this in effect is a suit against his state.

And they say that’s not what the Eleventh Amendment means and that’s not what the Fourteenth Amendment means.

Those amendments are addressed to state actions, state wrong because a state can’t be wrong.

This is a thrust of Ex parte Virginia, Poindexter versus Greenhow and a long line of cases that have been consistently held that way.

That State in the sense of the Constitution of the prohibitions of the Constitution can’t mean the sovereignty.

It must the mean the man who compose its government because they are the ones who can commit wrong.

They are the ones who can commit state actions.

Arthur J. Goldberg:

Mr Clark (Inaudible)

Charles Clark:

No, sir.

Because those torts are the actions of individuals just as in the Forrestal case, they said they would permit the suit without the United States even being there.

Arthur J. Goldberg:

I believe that the statutes submit direct suits against the State or doesn’t it, without depending on the individual.

Charles Clark:

But the thing that is being corrected is individual action.

It can’t constitutionally be otherwise.

Byron R. White:

But the case that you’ve made parties on what Mr. Justice Goldberg said and they pay.

Charles Clark:

To the extent that they — that the State, qua state is said to be acting unconstitutionally or wrongfully.

It can’t be squared with the Constitution.

Arthur J. Goldberg:

Did you say you can’t answer that?

Charles Clark:

I do not know of it, sir.

I cannot answer your question.

Potter Stewart:

Your answer to this questions is that does — it’s under agency doctrines of respondeat superior and your point is that this case is not that, this is wrongdoing by individuals despite the correction of the State, isn’t it?

Charles Clark:

Thank you sir.

I accept that.

I don’t have another answer for it at this moment.

Of course, I think that this position is consistent with 2281 which was a statute under which the Court was convened to a three-judge statute because this statute says in terms that it contemplates an action against the enforcer and it requires that notice be sent to the State.

Well, obviously, if it contemplated the State being made a party, it wouldn’t require a notice to the Governor or to its Attorney General.

This statute, 2281, which is as much a foundation of this action as any other statute, mentioning the Government’s jurisdictional statement not discussed in their brief.

Here’s a statute that is necessary to support the action of this Court as convened.

Hugo L. Black:

Is there any criminal punishment possible under this Act —

Charles Clark:

19 —

Hugo L. Black:

1971?

Charles Clark:

No sir.

You have to go into the criminal code.

I believe it’s Title XVIII, Section 242, Mr. Justice Black which we put to in our brief at one point or another so I don’t know whether I can pick it up for you right now.

Hugo L. Black:

What does it provide?

Charles Clark:

It provides that anyone who deprives another with his constitutional rights is guilty of the crime.

Hugo L. Black:

I thought there was one that sounds familiar in the offense — criminal offense to violate any of the civil rights statute, is that wrong?

Charles Clark:

I don’t — I’m not able to answer your question sir.

But there is one that whoever on the color of law deprives another of his rights is guilty of — is guilty.

This is the whole civil rights law, nothing in the recent enactments.

But, this was a —

Hugo L. Black:

What I’m hearing is the one that — is that in that — from the registrar and did not keep the record to the Court and then I’m guilty.

Charles Clark:

Yes, sir.

Hugo L. Black:

We’ve done it before, haven’t we?

Charles Clark:

Yes sir.

This is involved in this lawsuit because this is the statute that the Government asked the Court to take up and strike down now and we believe it’s wrong because it’s not a violation of the Supremacy Clause.

And this is a point — this is a time when — if ever unequal sovereignty does exist, it exists only at that point where there is an interference with the operation of the laws of the United States but of course, what’s — what does the whole thrust of this suit here is, that individuals have been wrong.

And, the United States may more efficiently protect that wrong by bringing suit to correct those wrongs against individuals.

And that the thrust of my argument as to the State is that — that there are individuals on both sides of the suit — of this suit and that the sovereignty of the United States should not attack the sovereignty of the State of Mississippi.

Tom C. Clark:

You’re familiar with California — United States against California?

Charles Clark:

There are some — several of them so I hope I’m familiar with —

Tom C. Clark:

You distinguished the case?

Charles Clark:

Is this the tort suit?

Tom C. Clark:

No, no.

That’s the one where the Congress refused to give the Attorney General the right to sue and then he went into Court anyway.

Charles Clark:

The thrust of what I’m saying here so would be that the point that I make pass sub silentio in the Court’s opinion there that it didn’t receive the necessary attention, number one.

Number two, that where a property right is involved, that the conflict is permissible because it does not carry with it a wrongdoing, a criminal action on the part of the sovereign.

Tom C. Clark:

So you’re stating there that the government explained — the federal government explained in parallel, the property.

Charles Clark:

Yes sir.

Tom C. Clark:

That’s what I distinguished to be permissible.

Charles Clark:

For property — it was a property action, yes sir.

Tom C. Clark:

That distinction you could rely — you can present argument on but it was not sub silentio.

It was previously argued.

They vigorously argued on both sides and decided within the Court’s opinion.

The Attorney General did have power to protect the Government’s interest.

I haven’t argued that case, have I?

Charles Clark:

Yes sir.

Well, I mean you’re talking about now whether or not there’s inherent authority —

Tom C. Clark:

Well, the Attorney General can file a suit.

Charles Clark:

Yes sir.

Tom C. Clark:

It was argued.

Charles Clark:

Under inherent authority as opposed to statute.

Tom C. Clark:

Well, I think subject to the evidence where it stated in the infringement of federal right of the Attorney General without any authorization and filed a suit to correct that wrong.

I merely first filed that suit in the trial court and get then that you could get.

Tom C. Clark:

And they filed a motion to dismiss the decision against the State.

Now, we dismiss that from here that’s why with the question on how you distinguish this case.

Charles Clark:

It would have to be on the property aspect.

It was not an attack on the sovereign as a wrongdoer.

It was an attack on the sovereign over who had title to their property.

The only action of the sovereign would have been that it held the title if the suit was well taken.

Hugo L. Black:

Yes, if your — if that ground is solid, that is a distinction.

Charles Clark:

Yes.

Earl Warren:

Mr. Clark, I didn’t — I don’t quite remember your answer to Justice White when he asked you if you are arguing that Section 1971 is unconstitutional to the extent that it authorizes a proceeding instituted by the Attorney General against the State.

Do you consider it’s unconstitutional?

Charles Clark:

Mr. Chief Justice, if your conception of join under that statute —

Earl Warren:

No, no.

No joining at all.

Let’s take the last half of it.

If there is no — if there is no successor in office after the official has resigned, the proceeding maybe instituted against the State.

Charles Clark:

No, sir.

It’s not my claim that that portion of 1971 is unconstitutional.

In fact, I’m not contending that any part of 1971 is unconstitutional.

Earl Warren:

That can be done?

Charles Clark:

Yes sir, because Mr. Chief Justice, the action asserted is not an action that says the State was wrong.

The State is only brought in because it is an essential vehicle to the granting of relief from a constitutional wrong.

The agent of the State who was wrong and who was accused of being wrong, it’s just not there.

He’s dead or he has resigned and it’s not the wrong won’t stand unrighted because an agent is not present.

The State there is really not a wrongdoer, but simply a defendant against whom relief can be granted.

Earl Warren:

Well, if there is no individual against whom the action can be brought while he was in the office, and the proceeding may be instituted against the State, what relief may be given against the State?

Charles Clark:

To require that the successors of that officer right the wrong that was done to the individual person who applied for registration, who was otherwise qualified under the state law, and was denied because of race or color.

In other words, the State can be required in that suit to provide an agent or servant to accomplish the registration but not because the State was wrong, which is a thrust of this action, not because it’s a lesser sovereign, but because a constitutional wrong has been done that needs to be right.

Arthur J. Goldberg:

But how can you distinguish the (Inaudible)

Charles Clark:

Yes sir.

Arthur J. Goldberg:

This is case where the suit is right brought in by the United States against the State of California by the Attorney General under the grounds of violation of the (Inaudible).

Charles Clark:

As far as the sovereign state was involved in that suit and I don’t — I‘m not familiar with the case, Mr. Justice Goldberg, but —

Arthur J. Goldberg:

United States against California (Inaudible) that certified the Government with the series of these cases.

Charles Clark:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Charles Clark:

Yes.

The only distinction that readily occurs to me is that it was a — it was in its proprietary capacity as opposed to its governmental function.

That’s the distinction that I would — would tell you at this time.

So, other than the fact that what I’m saying is that it cannot be squared with the Constitution.

The opposite of the view that you can — that you can attack a state, the view that you can attack a state in its sovereign capacity gives whoever can attack it the power to destroy it.

In fact, you really vest that power with the individual officer because he can say, “Well, I’m going to go out and do wrong and drag my state down”.

And he can’t do it.

I’ve taken so much of my time.

I would say this just in closing the point of the State.

The State is not material to the granting of relief in this cause if the Court should reverse the lower court and hold relief that the trial should have taken place if every allegation the complaint was proved.

You’ve got to get the individuals who committed the wrong enjoined.

And, the fact that you’ve aided the State from the top it does nothing with regard to effective relief.

On the U.S. versus Atkins, a case that the United States did not appeal from the Fifth Circuit which res judicata as to the point in that case.

Byron R. White:

You maintain a — you maintain an action against 10 registrars and they are enjoined, 10 other registrars may not be enjoined, but if you entered an injunction against the State of Mississippi and its agents and employees, I would suppose that all the registrars, at least those who know about the injunction and they’re given the — and their due process rights aren’t violated would be bound just like the injunction in Louisiana case that forbids Louisiana in its agents and employees from doing so forth.

Charles Clark:

Mr. Justice White, you’re precisely right sir.

It is certainly the most expedient and efficient remedy.

The question that I make to you sir is does it cut across the Constitution to get to that efficiency.

Byron R. White:

You suggested that this doesn’t going to make any difference in terms of remedy.

I’m suggesting that it does make a difference.

I’m not saying you’re right but it’s —

Charles Clark:

The point — well, let me explain in this instance.

The point where we would depart is that — I don’t agree with the Solicitor’s answer to a question that you posed to him before the lunch recess, that this action without the State, without some joinder device that this action could be maintained against different registrars.

It is not a joint in several actions.

If Joe Smith in Bolova County says to a qualified Negro citizen, you can’t register in Bolova County because I don’t like Negro citizens.

And if Pete Greene in George County says, anybody that complies with the laws of the State of Mississippi can register in my county, and he does not discriminate, how can you enjoin the Greene County registrar because of something that Bolova County registrar did particularly when these registrars don’t have the right to register out of the area.

They don’t just travel over the state registering people.

Charles Clark:

They are limited and confined to the scope of a single county.

And everybody in that county can apply only to that registrar to become registered.

But this —

Potter Stewart:

How does the person become a registrar?

Is it by appointment of the county?

Charles Clark:

He is required — this is another thing that we differ with the Government on an interpretation to Mississippi Law.

The law says that the circuit clerk who is an elected official of each county elected for a four-year term shall be the Registrar of Voters of that county unless he is shown to be an improper person and never in the history of a state have I known, anyone other than a circuit clerk to be appointed the registrars just for function.

He just inherits it with his elected officers in the Circuit Court.

Potter Stewart:

It’s one of the ex officio job of an elected official, a county elected official will serve for four years.

Is that it?

Charles Clark:

Yes.

There was a question with regard to registration — permanency of registration.

It is permanent in Mississippi except that the voter supervisors of every county, when they deem necessary can call for a re-registration.

Everybody has to start over again.

Potter Stewart:

How often does that happen as a matter of history in the facts?

Charles Clark:

There had been re-registrations.

I can’t — they haven’t been frequent.

But there have been counties of Mississippi that availed re-registrations.

Potter Stewart:

And this is in the absolute discretion of the county officers — county Board of Supervisors or –?

Charles Clark:

You say absolute discretion sir, I don’t — I think that they have to find the —

Potter Stewart:

Some reason for it.

Charles Clark:

Some reason for it.

I don’t know.

You say they can so, General?

They can order it to the Attorney General sir, any time.

Potter Stewart:

On a county — within any given county.

Charles Clark:

Yes, only they — the Board of Supervisors functions only for the county.

Potter Stewart:

How many counties are in Mississippi?

Charles Clark:

82.

I don’t know now.

Charles Clark:

I’ve wasted so much time that I don’t know which of the remaining points that would be best to emphasize.

But let me just say that since the Attorney General made a direct point of Yick Wo versus Hopkins.

And, because this is the interpretation of this case has been such a thorn in the side of so many course.

I guess it’s been cited as often as any case in the books.

Let me just read to you if I may, what I consider the crux of the case which I think clearly demonstrates that the actions of the officer did not invalidate the statute.

I don’t agree that the municipal ordinance involved in Yick Wo versus Hopkins was held unconstitutional.

I think that it was not.

The Court never reached that question.

In the beginning, Mr. Justice Matthews said, “Our jurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation of the Constitution laws or treatises in the United States.

Yick Wo was in jail.

He wanted to get out of jail.

He would have been wrongfully imprisoned if a bad law put him there on the proper administration just like he would have been wrongfully imprisoned if bad administration of a good law put him there.

So, either one of the two facets would have been sufficient to release Yick Wo from jail.

In fact, the Court in defining what was prayed for said, is contained on the part of the petitioners that the ordinance for violation of which they are severally sentenced to imprisonment or void on their face as being within the prohibition of the Fourteenth Amendment.

And in the alternative, the second ground was they are void by reason of the administration.

Then the holding of the Court nowhere in that case that you find this Court say, “that statute was unconstitutional.”

That sentence is nowhere in the case, nowhere in the opinion, and certainly, they would not have struck — bound an ordinance without at least that perfunctory pronouncements, rather they said, “Though the law itself be fair on its face and impartial and applies, yet if it’s applied and administered with an uneven hand so that it unjustly discriminates — unconstitutionally discriminates.”

Then Yick Wo is wrongfully in jail and he’s entitled to be released.

And they said this is the class of case that we are dealing with here, this class of wrongful administration.

Yick Wo was not a case holding that any officer can destroy a statute by choosing to violate instead of obey it.

The Attorney General — the Solicitor General claims that he is seeking preventive relief.

Our claim in that regard is that he tells you only part of the story because with his claim, entwined inseparably in his claim which says declare this statutes void and enjoin their application, is the essential and necessary claim of “create for me,” new franchise laws for the State of Mississippi because the ones existing were applied with a bad purpose.

And they’ve now been now been made bad on the Yick Wo versus Hopkins.

We disagree with his application of Yick Wo.

But for this example, take the qualification now required by Mississippi that a voter be 21 years of age.

Would this Court say that the legislature of the State of Mississippi could not pass a law stating that from this day forward, we believe that voters in Mississippi ought to be 25?

Could they pass a law that said we believe from this day forward, they ought to be 18?

If that law was passed, that one single change in the Constitution and Laws, would it be bad, would it be within this domain that belongs exclusively to the state?

Now, let me add the Solicitor General’s gloss and let’s say that he comes up after the legislature has acted to change the age of registration from 21 to 25.

He says, “Look, I have found some statistics from the Bureau of Census that say that the number of colored citizens between 21 and 25 that lived in the State of Mississippi is less than the number of white citizens between 21 and 25 that live in the State of Mississippi.

Charles Clark:

10%?50%?

Would the law be wrong then?

Could Mississippi still change the age of its electors from 21 to 25?

If statistics showed that it would have a discriminatory application if everybody in one racial group and the other racial group applied?

Would the law be wrong for that reason?

Would the Attorney General on the converse have a right to come into Mississippi and say, “Your law has always been age 21 but I want the laws relating to voting in Mississippi stricken down because of acts of past racial discrimination by administrative officials?”

And I not only want the Court to strike out those laws, I want you now to lower the age to 18 because I find again from a survey that there are more colored people between 21 and 18.

So this would be a helpful thing.

So while are we are remaking Mississippi’s election laws, let’s remake them to 18 because this would help us along.

Hugo L. Black:

What would be the effect or the remedy that could be shown that the Mississippi was — the law said 21, it allowed all whites over 18 to vote but allowed no Negroes at that age?

Charles Clark:

Until they were 21.

Hugo L. Black:

What effect would that have on the law as that should be held to be wrong?

Charles Clark:

Absolutely none, Mr. Justice Black, in my conception because there are again, you would be allowing a man charged with the correct use of a statute to violate the statute and kill it, to kill it by his wrongful act.

Hugo L. Black:

Well, we’ve held that reference to some laws and you had to judge him by how they were administered, not by how they were written on the books and let me reference to the tax laws down in Tennessee some years ago.

Charles Clark:

I wasn’t —

Hugo L. Black:

So did the law —

Charles Clark:

— familiar with that case.

I was familiar with the Browning — the Railroad Company versus Browning case that the Solicitor General cited which is a completely different case.

It doesn’t, though, in my opinion is not cited and the excerpt from that case is not sufficiently broad to show the Court what actually happened.

In the Railroad case, they did used the words that the administrative cause to put on the laws, remade the laws but that’s not what Mr. Justice Frankfurter said in his opinion.

He pointed out that the State of Tennessee had a right to separately assist railroad property at one rate of taxation from the rate of taxation applied to the rate of assessment, applied to other property of different kind.

In other words, the classification of railroads and public utilities was a permissible classification.

He said, because they could have done that in their statutory laws but did not.

We’re going to hold that they had a right to do it administratively.

Hugo L. Black:

Aside from the effect of that is that material to the point we have to the dismissal of this case, the point you’re now arguing as to what remedies and what can be the remedy?

Charles Clark:

No, sir.

If Your Honor please, I don’t concede that this Court is null now at this time or concerned with the question of remedy.

You know, this case was reversed in an order of argument with the Louisiana case.

It is at a different stage in this proceeding.

This case has been simply dismissed on a motion to dismiss.

Charles Clark:

The merits of the issues before the Court have never — they have never been presented to a lower court.

There’s nothing here to review with regard to a ruling on the merits.

I think that the ruling of this Court is concerned with whether or not you’re going to reverse the lower court or affirm the lower court in its — in this granting of the motion to dismiss.

Hugo L. Black:

On deciding precisely what?

Charles Clark:

On deciding whether or not the Attorney General in this case has taken a constitutional shortcut, thus, he lacked the power.

And with regard to inherent power, I might say that if you hold that the Attorney General has inherent power to attack voting laws, then he certainly did waste a lot of time in not bringing Reynolds versus Sims to the Court’s attention because this was a violation of the Constitution there.

And just as much within his inherent power as it would have been to bringing Wesberry versus Sanders and if he’s got an inherent power to sue for violation of Fourteenth Amendment rights, it would change some of the decisional law of this Court.

Hugo L. Black:

Your argument as you said in the beginning I gather that one point for a decision whether the Attorney General has a right to file this suit.

Charles Clark:

Yes, precisely.

And we’ve outlined in our brief and I’ve been too long in my argument and I apologize to the Court for not making a more consistent argument.

But we have outlined in our briefs, the precise reasons why each of the different defendants that he brought suit against were improperly sued by the Attorney General.

One other point with regard to — with regard to constitutional adjudications, one of the basic reasons that we claim that the Attorney General would not have the right to attack a state law for constitutional invalidity would be the reason that this Court relied on in U.S. versus Raines to prohibit the attack on a United States statute there, which was that it would bring up an abstract question of constitutional adjudication.

It’s not a question as in the last case where an applicant to vote came in to the Court and said, “I am otherwise qualified and here are my qualifications.

I applied to be registered to vote and the registrar denied me on the grounds of my race and color.

He would have registered me if I had been of another race or color.”

This is a concrete specific example on which constitutionality of legislation has historically been adjudged.

And the United States here is saying, “We don’t like this law.

They’ve been applied in a number of instances and yet the Solicitor says to you why if we have to bring individual suits, it’ll be difficult to prove our case”.

And he says, on the other hand that he wants you to take judicial notice of sufficient facts to hold these laws unconstitutional.It presents an abstract question of adjudication of constitutionality and not a specific question of adjudication.

And it gets back to one fundamental rule, a rule which I believe is widely recognized in the decisions of this Court and that is that when you are confronted with the question of where a statute is or is not unconstitutional, that issue is not properly resolved by a judge saying, “Would I have voted for that if I’ve been in the legislature?

That’s not a good act.

I don’t like it”.

The question is, is there any conceivable set of facts that this Court believes are reasonable in which the constitutional validity of this law may be upheld.

That’s the proper test.

We think that the Attorney General’s argument is exactly an argument seeking to hold the statutes of Mississippi unconstitutional and intertwined with that, fix his new qualifications that he outlines in his complaint which don’t comply with Mississippi’s Constitution of 1890, which don’t comply with the predecessor Constitution of 1869, neither one would bet these are new sets of qualifications conceived by the Attorney General for the State of Mississippi.

We say that no massive assault for the time made here was permissible.

Just one remark and I’m through.

Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for particular states would any man have hesitated to condemn it, both as an unwarrantable transposition of power and as a premeditated engine for the destruction of state governments.

Those are words of Alexander Hamilton, the man who proposed that our Constitution be so framed that the National Government would have the power to appoint the Chief Executive of every state who would be appointed during this behavior and would have to absolute right of veto and yet he himself was unwilling at the time of the adoption of the Constitution to approve any such far reaching effect as this lawsuit would have us — would have the Court adjudicate to be proper.

And that part that I read is —

Hugo L. Black:

(Voice Overlap) Fifteenth Amendment has made quite a change with reference to voting in election?

Charles Clark:

To prohibitions Mr. Justice Black, against actions with regard to voting to saying, “No, you cannot”, no state shall, it does not fix qualifications for voters and this is the thrust of this case.

In other words I am saying to you —

Hugo L. Black:

He does not fit the qualifications for it?

Charles Clark:

No.

Hugo L. Black:

But it does one thing which cannot be disputed here.

It gives the Congress the power to pass laws, to protect that right if he sees fit to do so.

Charles Clark:

It gives Congress the power to enforce the articles.

And this is what Congress exercised in 1971 and we claim the Government’s position in this case is entirely without support on the 1971 because Congress was seeking to enforce a prohibition, was seeking to enforce a don’t, and not a do.

Hugo L. Black:

Well, it says there — to pass laws appropriately, to do what the voters to be done there.

Charles Clark:

Yes sir.

Hugo L. Black:

And that’s not the course here because the Congress hasn’t passed a law particularly fixing the registration and qualification for voters.

Charles Clark:

Yes, and we would say also that this is not — this another reason why inherent power can’t come into play because here the Constitution has expressly said, Congress shall have the power to enforce this article and the Congress has acted and has enforced it and has enforced by enacting 1971.

And their end must be found, the repository or power to bring the suit.

Thank you sir.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

There is just two points, Mr. Chief Justice that I would like to touch upon very briefly.

During my argument before a luncheon, I spoke at various times of the statute to voting statute unconstitutional on its face, that is simply upon the words, that unconstitutional as applied to living reality.

Of course, I simply wished to allude to the fact that several of the cases that have been before this Court where statutes were invalidated have been cases where it was — the statute as applied to reality.

That was true in the Gwynn case.

Reading the statute alone, there was nothing wrong with the Gwynne case.

It was true in Lane and Wilson.

It was true in the Gomillion and Lightfoot but simply reading it alone, there’s nothing wrong with it.

And under the Fourteenth Amendment, in addition to Yick Wo, there is of course the landmark case of Grosjean against American Press where there’s a very pertinent language that I should have put in my brief by Chief Justice Hughes.

The other point to which I wanted to address myself very briefly is the alleged inability to sue the State, as I understand, it in sovereign capacity.

Now, one thing that is perfectly clear is that the Constitution is addressed to the states as Chief Justice White put it, acting in their governmental capacity, he says in the passages that I won’t read, they’re quoted in out brief from the Home Telephone case, the effect that the amendment speaking of the Fourteenth proceeds upon the assumption that the states acting in their governmental capacity in a complete sense may do acts that conflict with its provision.

And certainly, therefore, the Constitution contains no barrier to the United States which can sue a state, suing to hold the State within its domain, but that’s what this suit is about.

The Constitution we entered into it for the purpose of limiting the sovereignty of the states for one reason with many limitations in Section 10 of Article I, obviously addressed to the states in their governmental capacity, things like entering into treaties.

And this is a suit not to destroy the State of Mississippi, not to interfere with its establishing constitutional voting qualification but to enjoin a violation of the Fifteenth Amendment.

William J. Brennan, Jr.:

(Voice Overlap) the point is, you haven’t cited the (Inaudible) that view?

Archibald Cox:

No, I don’t think that case is in here.

We cited the California Safety Appliance case —

William J. Brennan, Jr.:

Are you getting any conflict on what was involved in that case?

Archibald Cox:

I thought it relied on a provision of the statute, if we may.

I neglected to —

William J. Brennan, Jr.:

Well, that’s what we have (Inaudible).

Archibald Cox:

Yes.

William J. Brennan, Jr.:

— the regulation that encompass it, that’s entirely fair —

Archibald Cox:

With it?

William J. Brennan, Jr.:

— in trying to resolve this.

Archibald Cox:

And of course, and all of these provisions carried with them some surrender of sovereignty.

The distinction that was offered between the State acting in its proprietary capacity and governmental capacity simply won’t do.

That was the very pointed issues that was argued in the California case and the Court rushed to decide.

William J. Brennan, Jr.:

It’s applying the statutes.

Archibald Cox:

Yes.

Of course..

But —

William J. Brennan, Jr.:

They’re right about the facts of the statute (Inaudible).

Archibald Cox:

Well, I think it does.

I think I have been involved.

The other point I wanted to make was that in every one of these kinds of cases or suits by the United States against the State, it could equally well have been said the State can do no wrong, the State can commit no trespass, the State can commit no act deserving of a penalty, the State cannot commit no tort for which we sue it for burning down our timber, I suppose the answer may be that we are suing the State in this governmental capacity in which it can and plainly has done wrong, and it’s in that capacity which the Constitution speaks of it.

It’s in that capacity that it’s named as a defendant and would be enjoined to the decree.

There is no attempt to destroy it in its ideal sovereign capacity or to interfere with its legitimate governmental operations.