Whereas the Voting Rights Act of 1965 will expire on August 6, 1975 of this year unless it is further extended by Congress; now, therefore, be it Resolved, That we, your Memorialists, do hereby respectfully urge that Congress, prior to August 6, 1975, extend the Voting Rights Act of 1965 for an additional 10 years; and be it further Resolved, That a copy of this resolution, duly authenticated by the Secretary of State, be transmitted by the Secretary of State to the President of the Senate and the Speaker of the House of Representatives of the United States Congress and to each Member of the Maine Congressional Delegation. House of Representatives; Read and Adopted April 11, 1975. Sent up for Con currence. EDWIN H. PERT, Clerk. In Senate Chamber; Read and Adopted In Concurrence April 14, 1975. HARRY N. STARBRANCH, Secretary. UNITED STATES OF AMERICA, STATE OF MAINE, OFFICE OF THE SECRETARY OF STATE I. Markham L. Gartley, Secretary of State of the State of Maine, and custodian of the seal of said State, do hereby certify: That I have carefully compared the annexed copy of the Joint Resolution memorializing the United States Congress to extend the Voting Rights Act of 1965 for 10 additional years, and that it is a full, true and complete transcript therefrom and of the whole thereof. In Testimony Whereof, I have caused the seal of the State to be hereunto affixed. Given under my hand at Augusta, this sixteenth day of April, in the year of our Lord one thousand nine hundred and seventy-five and in the one hundred and ninety-ninth year of the Independence of the United States of America. [SEAL] MARKHAM L. GARTLEY, Secretary of State. DEPARTMENT OF JUSTICE, Washington, May 16, 1975. Hon. JOHN V. TUNNEY, Chairman, Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. DEAR SENATOR TUNNEY: During my testimony before the Subcommittee on Constitutional Rights on April 29, 1975 I told you that I would provide the Subcommittee a letter spelling out in detail our views as to the constitutionality of expanding the special coverage of the Voting Rights Act as proposed in several bills and amendments currently pending in the Congress. Enclosed in accordance with that commitment is a detailed staff analysis of the constitutional questions involved. I agree completely with the conclusion in the staff analysis that the record supports the constitutionality of the provisions of Amendment 344 and of H.R. 6219 expanding the coverage of $4 of the Voting Rights Act. The goal of protecting the voting rights of non-English speaking racial minorities is legitimate under the Fifteenth Amendment. The evidence is sufficient to support a legislative determination of need and to support the means chosen for protecting the right to vote. I wish to stress again that in addition to the question of constitutionality of such expansion of § 4 there remain the questions whether expansion is appropriate. This question is properly within the province of the Congress. While we continue to hold ourselves available to assist the Congress in its consideration of the 1975 Voting Rights Amendment, I am not in a position, based on the existing state of the record, to comment, on behalf of the Administration, as to the advisability of expansion of § 4. In short, I believe expansion would be constitutional and I stand neutral at this time on the question whether Congress shou'd expand the provisions of the Act. Sincerely, J. STANLEY POTTINGER, Assistant Attorney General, Civil Rights Division. MEMORANDUM MAY 15, 1975. To: J. Stanley Pottinger, Assistant Attorney General, Civil Rights Division. From: Cynthia L. Attwood, Attorney, Appellate Section. Subject: The constitutionality of proposed expansion of the Voting Rights Act. During your testimony before the Senate Subcommittee on Constitutional Rights on April 29, 1975, Chairman Tunney requested that we provide an evaluation of the constitutionality of proposed provisions which would expand the coverage of the Voting Rights Act to jurisdictions with substantial concentrations of certain minorities and low voter participation. As you indicated in your prepared statement before the Subcommittee at p. 58, expansion of the special provisions of the Act to include other jurisdictions along the lines proposed in Amendments 312, 344 and 345 to S. 1279; S. 1409; and H.R. 6219 appears to be a constitutional exercise of remedial congressional power authorized by Section 2 of the Fifteenth Amendment or Section 5 of the Fourteenth Amendment. Discussion in this memorandum will focus on Senate Amendment 344 and H.R. 6219. I. THE FIFTEENTH AMENDMENT The Fifteenth Amendment provides: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The Fifteenth Amendment is an express limitation of the provisions of Article I. Section 2 and the Tenth Amendment, which reserve to the States the power to determine the qualifications of voters and to regulate elections. See Oregon v. Mitchell, 400 U.S. 112, 124-131 (opinion of Black, J.) (1970). The standard against which a congressional enactment to enforce the Fifteenth Amendment must be judged is articulated in South Carolina v. Katzenbach, 383 U.S. 301 (1966): The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretations, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibitions of racial discrimination in voting. The gist of the matter is that the Fifteenth Amendment supersedes contrary exertions of state power. Id. at 324-325. The Court continued: $ 2 of the Fifteenth Amendment expressly declares that "Congress shall have power to enforce this article by appropriate leigslation." By adding this authorization, the framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1. "It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. . . ." Er Parte Virginia, 100 U.S. 339, 345. Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting. The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation 50 years before the Fifteenth Amendment was ratified: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end. which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat 316, 421. Id. at 325-326. Thus, any congressional enactment pursuant to Section 2 of the Fifteenth Amendment must be weighed against two criteria: 1) is the end legitimate and within the scope of the Constitution; 2) are the means to that end appropri ate, adapted to that end, and consistent with the letter and spirit of the constitution? A. The appropriateness of the end The purpose of the provisions contained in Amendment 344 and H.R. 6219 which would expand the special provisions of the Voting Rights Act to jurisdictions with concentrations of certain minorities and low voter participation, is to eradicate voting discrimination against such minorities through the use of the remedies contained in the 1965 Act. The only significant consideration in determining whether this purpose is appropriate under the Fifteenth Amendment is whether the minorities protected by the various provisions constitute a "race or color" within the meaning of the Fifteenth Amendment. The protected class in the coverage formulae of Senate Amendment 344 and H.R. 6219 is defined as: 1) persons who are members of a "language minority," which is further defined to include persons who are Asian American, American Indian, Native Alaskan, or of Spanish heritage (H.R. 6219); and 2) persons who are members of a minority race or color the native language of which is other than English (Senate Amendment 344). The definition of Senate Amendment 344 is intended to cover the same classes of persons as those listed in H.R. 6219. There is no dispute that Asian-Americans, American Indians and Native Alaskans are members of a minority "race or color." Therefore the issue is whether Congress could find that persons of Spanish origin or heritage belong to a different "race or color" than white persons, so that discrimination against them can be said to be discrimination on account of race or color within the meaning of the Fifteenth Amendment. The question whether persons of Spanish heritage constitute a race or color within the meaning of the Fifteenth Amendment is discussed at length, and answered in the affirmative, in the Department of Justice Memorandum attached as Exhibit 32 to your testimony before the Senate Subcommittee. In addition, support for that position can be drawn from Oregon v. Mitchell, 400 U.S. 112 (1970), in which eight members of the Supreme Court upheld the Voting Rights Act nationwide ban on literacy tests on Fifteenth Amendment grounds (the remaining member of the court, Justice Douglas, found the nationwide ban constitutional on Fourteenth Amendment grounds). In his opinion in support of the constitutionality of that provision, Justice Black stated: I would hold that the literacy test ban of the 1970 Amendments is constitutional under the Enforcement Clause of the Fifteenth Amendment and that it supersedes Arizona's conflicting statutes under the Supremacy Clause of the Federal Constitution. In enacting the literacy test ban of Title II Congress has before it a long history of the discriminatory use of literacy tests to disenfranchise voters on account of their race. Congress could have found that as late as the summer of 1968, the percentage registration of nonwhite voters in seven Southern States was substantially below the percentage registration of white voters. Congress also had evidence to show that voter registration in areas with large Spanish-American populations was consistently below the state and national averages. In Arizona, for example, only two counties out of eight with Spanish surname populations in excess of 15% showed a voter registration equal to the statewide average. Arizona also has a serious problem of deficient voter registration among Indians. Congressional concern over the use of a literacy test to disenfranchise Puerto Ricans in New York State is already a matter of record in this Court. Katzenbach v. Morgan, supra. Oregon v. Mitchell, supra, 400 U.S. at 132–33. It is clear from this passage of Justice Black's opinion that in his view the Fifteenth Amendment extends protections to persons of Spanish heritage as well as to blacks and American Indians.1 1 The opinion in which Justices Brennan, White and Marshall joined, upholding the literacy test ban on Fifteenth Amendment grounds, also specifically refers to the effects of literacy tests on "persons of Spanish surname," at p. 235. Therefore, the Fifteenth Amendment provides a sufficient constitutional basis for enacting legislation to protect the voting rights of persons of Spanish heritage. B. The appropriateness of the means The basic structures of Senate Amendment 344 and H.R. 6219 are quite similar Jurisdictions with substantial populations of certain minorities, low voter participation,' and English only elections in 1972, are covered by operation of the Act and must comply with the special provisions of the Act, such as preclearance of all voting changes, which have been required of covered jursdictions since the passage of the original Act in 1965. In holding the means contained in the 1965 Act appropriate and constitutional, the Supreme Court in South Carolina v. Katzenbach, supra, analyzed the necessity for the Act, the rationality of the coverage formula, the potential for overbreadth, and the rationality of the preclearance requirement of Section 5. Any or all of these issues might be raised again in the context of a constitutional challenge to the expansion of the Act based on either of the proposed coverage formulae. 1. The necessity for expansion of the act The Supreme Court's extensive recitation of the history of voting discrimination against blacks in South Carolina v. Katzenbach, supra, 383 U.S. at 309315, has resulted in considerable controversey over what quantity and quality of evidence is necessary to constitutionally justify congressional expansion of the coverage of the Act. This is a complex issue; however, it is important to keep in mind that it is distinct from the issue whether the quantity and quality of evidence before Congress warrants a legislative judgment that the Act's coverage should be expanded. A law may be constitutional even if not all persons can agree on its necessity. The standard by which Congress evaluates the necessity of an act is usually, and appropriately, quite different from the standard used by the courts to evaluate a law's constitutionality. Whether a proposed law is likely to be held unconstitutional is, of course, an appropriate legislative consideration. However, Congressional analysis is not limited to that question. Discussion in this Section is limited to the question of the standard to be applied in determining whether the expansion of the Voting Rights Act is constitutionally justified. The Supreme Court in South Carolina v. Katzenbach, supra, 383 U.S. at 309– 315 stressed the "voluminous legislative history" which disclosed "unremitting and ingenious defiance" of the Fifteenth Amendment in holding the Voting Rights Act constitutional. The Court stated: "The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects." South Carolina v. Katzenbach, supra, 383 U.S. at 308. The opinion therefore raises the question whether a similarly overpowering case of discrimination against Spanish heritage persons (and any other persons protected, depending on the language of the coverage formula) must be made in order to sustain the constitutionality of a provision which expands the coverage of the Act. It should not be necessary, in order to sustain the constitutionality of any expansion of coverage of the Act, to build the kind of legislative record which was presented to the Court in South Carolina v. Katzenbach. This conclusion is based upon an evaluation of the context in which the Supreme Court decided the South Carolina case and of more recent Supreme Court decisions. At the time South Carolina v. Katzenbach was decided, the Voting Rights Act was viewed as an inventive exercise of Congressional power, because the Act prescribes remedies for voting discrimination which go into effect without any need for prior adjudication, and because special provisions of the Act are confined to a small number of states and political subdivisions. That the Court found it appropriate to give a detailed discussion of the legislative history supporting the Act is therefore understandable. However, it would be misinterpreting that opinion to conclude that it is constitutionally necessary now, to make an equally 2 Amendment 344: greater than 5 percent persons of voting age are members of any single minority race or color. the native language of which is other than English. H.R. 6219: greater than 5 percent citizens of voting age are members of a single language minority. 3 Defined in both proposals as less than 50 percent voter registration or participation in the 1972 presidential election. overwhelming factual case in support of expansion of the Act. First, one can assume that the Court recited the detailed factual setting for the Act in part because it had been developed by the Congressional record, and because Congress had relied upon that record in enacting the law. There is no indication in the Court's opinion that it would not have been satisfied with a congressional finding that the law was a necessary exercise of its constitutional powers based on a much less elaborate record. Although it is likely that Congress would have been held to have exceeded its authority if it passed such as act without any factual basis to support it, South Carolina v. Katzenbach should not be read as holding that the quantity and quality of factual support for the enactment of the Voting Rights Act constituted the minimum showing necessary to constitutionally justify passage of the Act. Second, a review of the constitutionality of a provision expanding the coverage of the Act ten years after South Carolina v. Katzenbach would, of necessity, present the issue whether there was a sufficient congressional factual basis to justify enactment in a context quite different from that of South Carolina. Expansion of the Act to include other jurisdictions is done within the context of a law which has been in operation for ten years. Such provisions do not attempt to expand federal powers beyond those which are contained in the 1965 Act; rather, they simply require that those constitutionally authorized powers be exercised in jurisdictions which become covered by virtue of an expanded definition of "test or device." In this sense, the proposed expansion provisions are similar to portions of the 1970 Amendments to the Voting Rights Act, which added a new coverage date the 1968 presidential election-in order to include jurisdictions not previously covered by the 1964 formula. Further, addition of the new definition of test or device-English only elections in areas with substantial populations of certain racial minorities which also suffer from language barriers to voting can be seen as a legislative attempt to codify recent case law which has arguably expanded the definition of test or device. See New York v. United States, F. Supp. (D. D.C. January 10, 1974), aff'd U.S. (43 U.S.L.W. 3224). More recent Supreme Court decisions also support the conclusion that an overwhelming factual case for expansion is not constitutionally required. The Court in Katzenbach v. Morgan, 384 U.S. 641 (1966) upheld Section 4(e) of the Voting Rights Act which prohibits the enforcement of English language literacy requirements against persons possessing a sixth grade education in Americanflag schools. The issue before the Court was whether Section 4(e) was "appropriate legislation" under the congressional authority granted by Section 5 of the Fourteenth Amendment. There was little if any legislative record to support the enactment of Section 4 (e). The Court stated: Correctly viewed, §5 [of the Fourteenth Amendment] is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment. It was for Congress, as the branch that made this judgment, to assess and weight the various conflicting considerations-the risk of pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. Katzenbach v. Morgan, supra, 384 U.S. at 651-653. Section 2 of the Fifteenth Amendment closely resembles § 5 of the Fourteenth Amendment. See also Oregon v. Mitchell, supra, 400 U.S. at 132–133 where Justice Black in large part hypothesizes what evidence Congress might have considered in deciding to enact a nationwide ban on literacy tests. Justice Harlan, in his separate opinion in that case, agreed with Justice Black's conclusion that the nationwide ban on literacy tests was a constitutional exercise of congressional power under Section 2 of the Fifteenth Amendment. Justice Harlan states: Despite the lack of evidence of specific instances of discriminatory application or effect, Congress could have determined that racial prejudice is |