again, litigation will be the only remedy available. Such case by case court action to secure the right to register and vote proved almost totally ineffective in the late fifties and early sixties. This was one of the main reasons for the passage of the Act originally. The suspension of literacy testing and all other tests or devices as prerequisites to the right to vote is another basic provision of the Voting Rights Act that is scheduled to expire this August. Originally, the ban on such testing applied only to the jurisdictions covered by the triggering provisions of Section 4 of the Act, but in 1970 literacy tests were banned nationwide. In 1970, when I was Staff Director of the United States Commission on Civil Rights, the Commission recommended that the nationwide ban be made permanent. Over the past 5 years, I have become even more convinced that a permanent ban on all tests and devices is both constitutional and essential to assure full compliance with the 14th and 15th Amendments. In 1970, Congress not only found that literacy tests had a racially discriminatory effect wherever they were applied, but also concluded that the tests were of little practical value. Radio and television now are major sources of information to all, regardless of their ability to read and write. It is entirely possible to make an informed judgment on current issues without ever picking up a newspaper or reading a campaign poster. There are many uninformed literate citizens and many well informed illiterate citizens. Furthermore, many Spanish-speaking citizens are effectively disenfranchised because of their inability to read and write English regardless of how well-informed they might be through Spanish language newspapers and broadcasting. The extent of functional illiteracy in the United States also is greater than many would expect. Figures from the 1970 Census indicate that some 5.5 percent of the total population over 25 years of age had less than 5 years of formal schooling. The 1970 Census also shows that 15 percent of all blacks and 16 percent of all citizens of Spanish heritage over 25 years of age are functionally illiterate. The disproportionate incidence of illiteracy in blacks and other minorities results in large part from the segregated and inferior public education systems many were forced to attend. In fact, the Supreme Court in the 1969 case of Gaston County, North Carolina v. United States (395 U.S. 292) held that a literacy test requirement in that jurisdiction, even if uniformly applied, nevertheless had a discriminatory effect on prospective black registrants because of the continuing effects of the segregated and inadequate education blacks in Gaston County had traditionally received. And increasingly we have come to realize that illegal school segregation is not indigenous to the South. It is found in Denver, Colorado, Detroit, Michigan, New Rochelle, New York, San Francisco, California and, yes, even in the Athens of America, the Cradle of Liberty-Boston, Massachusetts. It is doubly reprehensible when we disfranchise our citizens because they have been short-changed in our schools. But even aside from the problem of racial and cultural discrimination, I feel that all tests and devices as prerequisites to the right to vote in our democracy are inherently wrong. Voting is not a privilege offered by the state, such as a driver's license. It is a fundamental and sacred personal right-"the essence of a democratic society," (Reynolds v. Sims, 377 U.S. 533, 555 (1939))—and should not lightly be denied to anyone for any reason. All citizens should be encouraged to vote and to participate in our political processes, not shamed and discouraged by petty and humiliating literacy tests. Surely, the illiterate is affected just as much by government's actions as are all other citizens. Government at all levels should welcome citizen participation and do everything possible to make such participation easy and convenient. I do not believe that literacy tests, regardless of how they are structured or administered, have any place in the American democracy. If the ban on literacy testing is allowed to expire this August, so that states can once again enforce their literacy tests, we will undo much of the progress we have made in the past 10 years. For example, all citizens who attempt to register to vote in Alabama will be required to "read and write any article of the Constitution of the United States in the English language and make proof of same in the manner prescribed by the legislature." (Ala. Code, Title 17-32). Prospective registrants in South Carolina will be required to either "both read and write any section of (the State) Constitution submitted to said elector by the registration officer or... show that he owns, and has paid all taxes collectable during the previous year on property in this State assessed at three hundred dollars or more.” (S.C. Code Ann., 23–62(4)). Not only would new voters have to pass such tests, however. If Section 5 were no longer in force, Alabama, South Carolina and the 12 other states with literacy tests still on the books could simply require reregistration, and most of the illiterate voters registered during the last ten years would be stricken from the voting rolls. Added to this would be the many literate voters who might be discriminated against in the administration of the test. Many blacks and Spanish-speaking citizens would be as effectively disenfranchised as they had been in 1964. We would betray the thousands of concerned black and white citizens who marched from Selma, Alabama to the state capitol at Montgomery ten years ago this month to dramatize their appeal for full voting rights if we fail to renew the Voting Rights Act-the fruit of their suffering. We would ignore the history of black disenfranchisement in the South over the last hundred and ten years if we allowed the covered jurisdictions to return to the practices which have proven so susceptible to racial discrimination. We feel, therefore, that it is absolutely essential that the Voting Rights Act be extended for ten years and that the nationwide ban on literacy tests and devices be made permanent. Over the ten years since the Act was passed, a variety of voting problems have come to light for which the Act contains no specific remedies. Of particular concern are the difficulties experienced by Spanish-speaking Americans in their attempts to exercise their right to vote. In some parts of the country they are subject to many of the same types of discrimination that blacks have suffered. In fact a Federal District Court in Texas concluded that Mexican Americans have been denied access to the political processes in that state "even longer than the Blacks were formally denied access by the white primary." (Graves v. Barnes, 343 F. Supp. 704, 731 (W.D. Tex., 1972)). Similarly, a Commission on Civil Rights investigation in Texas last year uncovered evidence of widespread economic threats and coercion against Mexican-Americans who became involved in local politics. Overt discrimination is not the only factor which limits the political participation of Spanish-speaking Americans. Since most registration and election materials are printed in English, the language barrier often has prevented Spanishspeaking citizens from registering or, once registered, from voting effectively. This barrier is as significant an impairment of the right to vote as any literacy test that was used to deny the franchise to blacks. As a Federal District Court in New York said: "It is simply fundamental that voting instructions and ballots, in addition to any other material which forms part of the official communication to registered voters prior to an election, must be in Spanish as well as English, if the vote of Spanish-speaking citizens is not to be seriously impaired." (Torres v. Sachs, 381 F. Supp. 309, 312 (S.D.N.Y. 1974)). Overt discrimination and the language barrier has had its consequences. Spanish-speaking Americans suffer from disproportionately low registration and voting rates. According to a study of the Bureau of the Census for 1972, only 46 percent of Mexican Americans were registered to vote, as opposed to 73.4 percent of whites. Only 37.5 percent of Mexican Americans actually voted in November, 1972, compared to 64.5 percent for whites. The denial of access to the ballot has resulted in a similar disproportionate absence of Mexican Americans from elected offices. For instance, in California, where Mexican Americans comprise 18.8 percent of the population, fewer than 2 percent of the major elected and appointed government officials at all levels of government were Mexican American in 1970. In Texas, where 18 percent of the population is Mexican American, in 1972 only 298 of the 2,770 elected officials were Mexican Americans. While the nationwide suspension of literacy tests and devices and the Voting Rights Act coverage of several counties in California, Arizona and New York which have large Spanish-speaking elements of the population enabled many Spanish-speaking Americans to register and vote for the first time, the Voting Rights Act has otherwise had little impact on their political and electoral problems. Several possible remedies have been suggested for these problems. Some have urged that Congress amend the Voting Rights Act by enacting a new triggering device which would bring under the coverage of the Act jurisdictions where a significant percentage of the population is Spanish-speaking or of Spanish extraction, or where a fixed percentage of the eligible voters are of a mother tongue other than English. Another suggestion is that the Department of Justice treat any election process conducted solely in English as, in effect, a literacy test or device for Spanish-speaking citizens. I am confident that the varied questions posed by possible amendments to the Voting Rights Act will be fully explored in these hearings, and that extensive testimony will be received concerning the problems of discrimination against Spanish-speaking citizens in the electoral process. Much of the evidence suggests that the most serious abuses of the voting rights of Spanish-speaking citizens have occurred in Texas. Texas, despite its 44 percent voter turnout rate in 1964, was not brought within the coverage of the Voting Rights Act because its various requirements for registration and voting were not regarded as a "test or device" of the type prohibited by the Act. I believe that the evidence collected to date presents a strong case for extension of the Act's coverage, and this Subcommittee should give serious consideration to these proposals that the Act be expanded to include protection for Spanish-speaking citizens. Efforts to remove the barriers to the participation of minority groups in the political process should be accompanied by steps to increase the shamefully low level of participation of citizens in general. In these days of the ever increasing importance of government actions to the individual citizen, it is of paramount concern that all citizens be encouraged to participate fully and equally in the democratic processes. One of the recommendations of the Commission on Civil Rights 1968 Political Participation report was that Congress explore various affirmative measures by which the Government could encourage persons to register and vote. Among the suggested means was a proposal that local offices of federal agencies, such as the Post Office or the Department of Agriculture, be used to disseminate information on registration and voting. An idea particularly well-suited to the problems of black and minority voters throughout the nation which I feel warrants careful consideration by this subcommittee is postcard registration. Such plans have already proved very successful and almost totally free 1rom fraud and abuse in Texas, Minnesota and New Jersey. The U.S. Senate passed in the last Congress a bill which would have provided for registration by mail in federal elections. This is exactly the sort of affirmative step Congress should take to encourage increased political participation. The Voting Rights Act was a giant step forward toward that goal, but we have not yet reached it. There is continued and substantial evidence that many Americans are being denied the right to vote and to have their votes given full weight because of their race or ethnic background. The patterns of discrimination and intimidation against black voters in the South that have developed over a hundred years cannot be ended in just five or ten years. In previous Congressional testimony, I likened the coverage of the Act to a protective umbrella under which a viable black political tradition could begin to grow. This umbrella must be kept in place until the roots of black political participation are deep enough to permit blacks to protect themselves through the political process. Although these roots are somewhat deeper today than they were in 1971, there is a great risk that black political participation will never grow to its full potential, and perhaps will even wither and die, if the protective umbrella of the Voting Rights Act is stripped away. This was the case in the post-Reconstruction years and there is substantial evidence that that shameful period of American history could indeed repeat itself. We must not allow that to happen and so I urge this Subcommittee to recommend the extension of the Voting Rights Act of 1965 and a permanent ban on literacy tests. Senator TUNNEY. Thank you very much. We appreciate it. I would like to announce that the hearing will reconvene on Tuesday, April 22, in this room, when we will hear from a number of witnesses on the extension of the Voting Rights Act to Spanishspeaking people. The subcommittee is adjourned. [Whereupon, at 1:15 p.m., the subcommittee adjourned.] EXTENSION OF THE VOTING RIGHTS ACT OF 1965 TUESDAY, APRIL 22, 1975 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 9:40 a.m., in room 2228, Dirksen Senate Office Building, Senator John V. Tunney (chairman of the subcommittee) presiding. Present: Senators Tunney, Bayh, and Scott of Virginia. Also present: Marshall Goldberg, majority counsel. Senator TUNNEY. The subcommittee will come to order. Today the subcommittee begins the second day of hearings on the issue before us, the extension of the Voting Rights Act to other minorities, particularly Spanish-speaking minorities. We are very pleased to have with us today Congresswoman Barbara Jordan, who is the lead author of amending the Voting Rights Act over in the House of Representatives, which would extend the voting rights coverage to Spanish-speaking minorities. Congressman Herman Badillo, from New York, was scheduled to be our first witness this morning but due to some pressing business in the House he is unable to be with us. At this time, without objection, I would like to submit his prepared statement for the record. [The prepared statement of Congressman Badillo follows:] PREPARED STATEMENT OF REPRESENTATIVE HERMAN BADILLO, FROM THE STATE OF NEW YORK Mr. Chairman and Members of this Subcommittee, it is a pleasure to give testimony on behalf of the extension and expansion of the Voting Rights Act of 1965. My colleagues, Representative Barbara Jordan of Texas and Representative Edward Roybal of California, and I have been working together for several months developing amendments to the Voting Rights Act that would expand the Coverage of this vital law to jurisdictions which have denied or abridged the right to vote of persons of Spanish heritage. On March 26, 1975, we introduced a bill in the House of Representatives (H.R. 5552) which we believe represented a rational, effective and constitutional approach to this question. An amendment to Senator Philip Hart's bill, S. 1279, introduced by Senator Birch Bayh, now pending before your Subcommittee, is identical to H.R. 5552. As you know, the House Subcommittee on Civil and Constitutional Rights, of which I am a Member, has just reported legislation to extend and expand the Voting Rights Act. During our markup of this legislation, the Subcommittee unanimously approved amendments expanding the coverage of the Act. The amendments I offered represent further improvements in the provisions of H.R. The legislation approved by the House Subcommittee was the result of a careful review of the excellent testimony which had been presented during the 13 days of hearings from February 25, 1975 to March 25, 1975. During the hear 5552. 52-004-75-16 |