VOTING RIGHTS WEDNESDAY, MARCH 24, 1965 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to recess, at 10:30 a.m., in room 2228,. New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, Johnston, Ervin, Fong, Hart, Kennedy of Massachusetts, Bayh, Tydings, Dirksen, Hruska, Scott, Miller, and Javits. Also present: Joseph A. Davis, chief clerk; Palmer Lipscomb, Robert B. Young, and Thomas B. Collins, professional staff members of the committee. Senator JOHNSTON. The committee will come to order. The Attorney General will be heard. I think he was being heard at the time we adjourned yesterday. I think the Senator from North Carolina, Senator Ervin, was asking some questions. So you may proceed. STATEMENT OF HON. NICHOLAS deB. KATZENBACH, ATTORNEY Attorney General KATZENBACH. Mr. Chairman. Attorney General KATZENBACH. I have some statistics here, some of which were introduced yesterday, and I have put them in a more orderly form, and I have asked some of the people to get more statistics on this. I wonder whether I could submit these that I have for the record and leave it open for more statistics of a like nature. Senator JOHNSTON. You may submit those for the record and also bring the others at a later date, later time, there being no opposition to it. Attorney General KATZENBACH. Thank you, sir. (The material referred to follows:) 1 This is an estimate by the Bureau of Census as of Nov. 1, 1964, taken from a memorandum issued by the Department of Commerce, dated Sept. 8, 1964, No. CB-64 93. This column is based on figures supplied by official State sources to the Congressional Quarterly. These figures are mostly based on the official reports of the various States, but in some cases do not represent the actual number of persons registered, due to the lack of effective purging of voters who have died or moved away or otherwise become ineligible. These percentages are based on the voting age population as of Nov. 1, 1964. These States use a test or device as defined by sec. 3(b) of the proposed Voting Rights Act of 1965. Idaho, which does not have a literacy test, has a "good moral character" requirement. Some of the literacy tests States also have a "good moral character" requirement. These States do not have statewide registration. States which use a test or device as defined by sec. 8(b) of the proposed Voting Rights Act of 1965 This is an estimate by the Bureau of Census as of Nov. 1, 1964, taken from a memo issued by the Department of Commerce, dated Sept. 8, 1964, No. CB64-93. This column is based on figures supplied by official State sources to the Congressional Quarterly. States in which less than 50 percent of the voting age population voted in the presidential election of 1964. 1964. States in which more than 50 percent of the voting age population voted in the presidential election of Senator ERVIN. Mr. Attorney General, I am very much interested in the editorial by the Wall Street Journal of this date, which undertakes to analyze your position on this matter, and I think it might be illuminating if I asked you some questions about it. It says: Appearing before the Senate Judiciary Subcommittee Mr. Katzenbach made no claim the Constitution gives to the Federal Government the authority to set voting qualifications in all the several States nor did he cite any Supreme Court opinions to suggest that the Federal Government has such power. Now, in view of that I would like to ask you, Do you take the position that the Federal Government has the right to set voting qualifications in any State? Attorney General KATZENBACH. I don't take the position, Senator, that the Federal Government has the right simply to set voter qualifications. I think that remains with the States. I do take the position that the Federal Government has the right to enact statutes under section 2 of the 15th amendment which would implement those provisions; and I do take the position that on a proper record of past racial discrimination in voting, the Federal Government has the authority to suspend voter qualifications, or other tests and devices, which have been used in violation of the 15th amendment, and to impose upon those areas of the country which have done so in order to implement the 15th amendment, a suspension of such tests and devices in order that people may be registered within their States, Negroes may be reg istered within those States on the same basis that, in fact, has been used for white voters. Senator ERVIN. It states here that you did not cite any Supreme Court opinions to suggest the Federal Government has the power to set voting qualifications, and it says "He hardly could have." This is what I want to direct your attention specifically to, for the very first article of the Constitution reaffirmed by the 17th amendment lays down only one qualification which the National Government insists upon; namely, that all voters qualified to vote for the most numerous branch of the State legislature must be qualified also to vote in any national election. Do you quarrel with that principal? Attorney General KATZENBACH. I think that is perfectly true as far as article I is concerned. I do think that the 15th amendment sets down another standard. Senator ERVIN. Yes; they follow that with this statement Attorney General KATZENBACH. And I thought that I had cited at least the Lassiter case, and I thought I had read from the Supreme Court, to the effect that when they said literacy tests were proper for States to use that they also said in the same case that it was subject to the imposition of other constitutional powers. Senator ERVIN. Yes; but is this not a correct statement of what the Constitution provides on this subject, that States can prescribe not only the qualifications of voters in State and local elections but they can also prescribe qualifications for voting in national elections subject to three conditions: First, that the qualification laid down by the States for voting in national elections must provide that the voters, persons eligible to vote in a national election, if they possess the qualifications prescribed by State law for electors of the most numerous branch of the State legislature Attorney General KATZENBACH. Right. Senator ERVIN. The second limitation is that a State cannot deny or abridge the right of any person, any citizen to vote on account of his race or color as provided in the 15th amendment. Attorney General KATZENBACH. Right. Senator ERVIN. And the third is that a State cannot abridge the right of any citizen to vote on account of the sex of that citizen. Attorney General KATZENBACH. That is right. And our position, Senator, is that they have not merely violated the 15th amendment but they have also violated the provision which talks about qualification for the most numerous branch of the State legislature because they have, in fact, registered whites with no literacy qualifications at all while imposing literacy qualifications unfairly in the administration of that on Negroes, so they have actually been in violation of article I-2 as well as the 15th amendment. Senator ERVIN. I want to add the fourth limitation, that no State can impose a poll tax as a prerequisition to voting in Federal elections since a constitutional amendment has recently been adopted. Attorney General KATZENBACH. Yes. Senator ERVIN. That statement of those four limitations on the power of a State to prescribe qualifications for voting is supreme, |