The State Board of Elections and all of the election officials in Virginia respectfully ask the Congress of the United States to relieve the Commonwealth from the burden of submitting every change in the electoral procedure to the Department of Justice in Washington for approval before implementation. If the Congress would grant such relief and give the Commonwealth of Virginia the same right as most of the other states of the nation, the right to uniformly implement its election laws without discrimination, a safeguard could be included in any future legislation to ease the concern of the very few who have expressed doubts. If this Board can be of any further assistance to you or to the Congress, please call upon us. With warm personal regards, I am Enclosures. Mrs. ANNE D. SNYDER, Chairman, Electoral Board, County of Prince William, JOAN S. MAHAN, Secretary. FEBRUARY 25, 1975. DEAR MRS. SNYDER: The Voting Rights Act of 1965 requires that any change in any election procedure that is different from that currently in practice must be submitted to the United States Attorney General and he has sixty days in which to interpose an objection. Additional registration times would be required to be submitted as described above by the chief legal officer of your county. Under the circumstances presented in your letter to me of February 18, 1975, I would suggest that the person submitting these changes request their expeditious review by the Attorney General. Sincerely, JOAN S. MAHAN, Secretary. PRINCE WILLIAM COUNTY ELECTORAL Board, Mrs. JOAN S. MAHAN, Secretary, State Board of Elections, DEAR MRS. MAHAN: Nancy Haydon has been briefing me on recent events in Richmond, among them, your statement to the Voter Registrar's Association to the effect that because temporary registration hours fall under the Federal Voting Rights Act, the U.S. Attorney General must be notified sixty days prior as to date, time and place of any such temporary registration hours in order to have time to interpose an objection. To say I am stunned at this revelation would be putting it mildly! We are already receiving myriad requests to facilitate voter registration, such as appointing more registrars, permitting them to sit in shopping centers, etc., etc. It is difficult enough to try to explain to our citizenry why we can't have instant registrars going door to door soliciting registrations. It will be impossible to explain that we must have sixty days notice PLUS administrative time, before we can even agree to provide a registrar for a voter registration drive held in a public place. We have already passed the date when we should have notified the Attorney General of voter registration drives being planned by various citizens groups for March and April. They are going to be quite irate when we tell them we must renege on our offer to provide registrars for these occasions due to the fact that their requests are too late to satisfy the 60 day requirement of notification to the U.S. Attorney General. For that reason, I would much appreciate a written statement from you and/ or the Attorney General of Virginia and the Attorney General of the United States explaining why we must have a minimum of seventy days prior notice to provide a registrar for a voter registration drive. Yours very truly, ANNE D. SNYDER, Chairman, Prince William County Electoral Board. Senator SCOTT. Now, Mr. Chairman, a reading of that letter indicates that sometimes it is desired that there be a registrar sent to a library, a registrar sent to a shopping center, that there be an effort to encourage as many people as possible to register and vote; yet, when it takes 60 days to get approval from the Attorney General of the United States to do that, and Virginia law requires at least 10 days' notice be given, that is a total of 70 days or a possible 70 days and the local registrars, the general registrars of the county and city, they just fell that is too much effort and they do not do the things that they would like to do because of this Voting Rights Act. There is no effort in Virginia to keep anyone from voting but as illustrated in this correspondence, the Voting Rights Act in effect frustrates our State in its efforts to obtain still greater participation. Mr. Chairman, all I am asking of the subcommittee is that in the further consideration of this proposal we look at the situation as it exists today; that we not attempt to write a punitive measure. It would serve no useful purpose and the finger might be pointed in almost any direction within a given period of our history; that we merely attempt to provide that no citizen shall be denied the right to vote on the basis of race or color. This is the content of my remarks, Mr. Chairman. I appreciate the courtesy of the Chair in affording me the opportunity to testify. Senator TUNNEY. Thank you very much, Senator Scott, for your testimony. There is a difference of opinion as to whether or not the act is punitive. I do not think there is any question that it was not the intention of those who passed the act in 1965 and again in 1970; those who favor its continuation for another 5 or 10 years are doing it, not with the idea of being punitive to individual States, but to guarantee that blacks and other minorities have the right to fully participate in the political process. In that regard, the 50-percent figure for registration and voter turnout was not established as a goal but as an indication of discrimination and I recognize that you disagree with the basic principle underlying that basic legislative draftsmanship. But that was my understanding as to the purpose of it. Senator SCOTT. Mr. Chairman, please understand that I do not impugn the motive of any colleague in the Senate. That is not my intention at all. But if you would read the cases, the cases that arose from the District of Columbia, if you would read the dicta within those cases, you will find suggestions without proof but suggestions of a long line of discrimination among all the Southern States, no mention is made of discrimination in other States. I happened to have been on the floor and heard two of our more liberal friends-in fact I will not mention the man, the Senator who said it, but he was talking to Senator Ed Brooke. He said, "You know, Ed, your trouble started when you lifted the curfew up in Massachusetts." There is a little bit of horseplay that they were having, yet they told me that there used to be a curfew on Irish people up in Massachusetts. We know Massachusetts is one of our most progressive States. I do not say anything at all in the way of criticism of this given. State, one of the great States in our Union. Witches were burned at Salem. You can go back into the history of any State. I suspect your own State. Sometime in history there was discrimination against people of oriental descent, people of Mexican descent. If we go back into history we find that is true in all of our States. I do not think that you are proud of it; I do not think that I am proud of it. I am saying that we ought to look at what the situation is today, not go back to 1964 or some past date when we are called upon to come into the District of Columbia. Past events should not have a thing to do with it but it seems reasonable to me that we pass legislation on the basis of the facts that exist today. This is really the thrust of the argument that I am making. Now, Mr. Chairman, I do have here, without his permission, a copy of the testimony that was given by the attorney general of Virginia over on the House side. If the Chair feels it would be of any value to the Senate committee in making its determination, I would be glad to offer a copy of it for the record. Senator TUNNEY. We would like to have it incorporated in the record. [The prepared statement of Andrew P. Miller, attorney general of Virginia before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, appears on the following pages:] STATEMENT OF HON. ANDREW P. MILLER, ATTORNEY GENERAL OF VIRGINIA Mr. Chairman and Members of the Subcommittee: As Attorney General of Virginia, I appreciate the invitation of the Chairman, of the committee, Mr. Rodino, for this opportunity to testify on the Voting Rights Act. I intend to address a major concern of the Commonwealth and a major factor emphasized by the Department of Justice in its testimony before this Subcommittee on March 5, 1975: the undue strain on federalism which has resulted by application of the Act. The manner in which the Act is now being interpreted, by the Department of Justice and the United States District Court for the District of Columbia, has, in short, resulted in an unconstitutional application that must be cured by this Committee. Let me illustrate. Section 5 of the Act, which requires pre-clearance of voting changes was and is a far-reaching remedy. In South Carolina v. Katzenbach, 383 U.S. 301 (1966). Mr. Justice Black, in dissent, argued that Section 5 "so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless." Id. at 358. Section 5 was considered by Justice Black to be "in direct conflict with the clear command of our Constitution that 'the United States shall guarantee to every state in this Union a Republican Form of Government.'" Federalism, if it means anything, "means at the least that the states have power to pass laws and amend their constitutions without first sending their officials ... to beg federal authorities to approve them." Id. at 359. The majority of the Court acknowledged that Section 5 was "an uncommon exercise of congressional power" but allowed it to stand in view of the "exceptional conditions" and "compulsion of . . . unique circumstances" with which Congress was dealing. Id. at 334-35. The majority of the Court held federalism was not destroyed since the Act cures such an overbreadth problem. The coverage formula set forth in Section 4(b) of the Act was, in effect, a statutory inference that, where a jurisdiction maintained a literacy test and had low voter participation, the level of participation reflected purposeful manipulation of the test to discriminate against blacks. This presumption was not intended as a final determination of culpability, however, and provision was made in the Act for rebutting it. Congress recognized that the formula might ensnare states either that had administered their literacy tests fairly or that had some explanation other than discrimination for the relatively low level of voter participation, and it expressly provided a method for those states to gain relief from the burdens of the Act. The House Report states, for example, that: "There may be areas covered under the formula of section 4 where there has been no racial discrimination violating the 15th amendment. The bill takes account of this possibility by a provision which affords any State or subdivision an opportunity to exempt itself, by obtaining an adjudication that such tests or devices have not been used by it to accomplish substantial discrimination in the preceding 5 years." H.R. Rep. No. 439, 89th Cong., 1st Sess. 14 (1965). As Attorney General Katzenbach stated: "The intent is to get rid of subjective tests in areas where they have been used for a violation of the 15th amendment. I believe on the basis of the testimony I have made, on the basis of the evidence that we have, that those tests have been presumptively used in the areas described here for that purpose. I believe that in setting up the objectives we may have caught possibly one State, possibly more, that have not used them for discriminatory purposes. I think in general we have caught those States and counties which have discriminated and those which have not have the opportunity to come in and show that they have not done so." Hearings on H.R. 6400 Before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., Ser. 2, 105 (1965). (1965 House Hearings.) The Attorney General made clear that Virginia was not among the states in which "voting discrimination has unquestionably been widespread," and he saw no existing bar to exculpation by Virginia based on the statutory standard. Id. at 12, 24, 25. Specifically, Section 4(a) of the Act, as originally adopted, provided that a state might be relieved from the sanctions of the Act if the United States District Court for the District of Columbia determined, in a declaratory judgment action instituted by the state, that "no test or device has been used during the five year (now ten) preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color." In order to ensure that exculpation would not be withheld in the absence of a showing of substantial discrimination through the use of a test, Congress provided in Section 4(d) of the Act that even where evidence of discriminatory use may be present, the Court may still make the necessary determination if: "(1) incidents of such use have been few in number and have been promptly and effectively cor rected by State or local action, (2) the continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their recurrence in the future." [Voting Rights Act, § 4(d), 42 U.S.C. § 1973b (d).] The Supreme Court upheld the formula in Section 4(b) as a reasonable inference based upon evidence of actual discrimination: "Congress began work with reliable evidence of actual voting discrimination in a great majority of the States and political subdivisions affected by the new remedies of the Act. The formula eventually evolved to describe these areas was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by 84(b) of the Act." South Carolina v. Katzenbach, 383 U.S. at 329. As to those jurisdictions in which the evidence might not support such an inference, the Court stated that it was "permissible to impose the new remedies" At least in the absence of proof that they have been free of substantial voting discrimination in recent years.' Id. at 329-30. (Emphasis added.) In justifying this shifting of the burden of proof to those states, the Court emphasized that the burden was not intended to be insurmountable (383 U.S. at 332): "[A]n area need do no more than submit affidavits from voting officials, asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past five years, and then refute whatever evidence to the contrary may be adduced by the Federal Government. Section 4(d) further assures that an area need not disprove each isolated instance of voting discrimination proceedings. The burden of proof is therefore quite bearable. . This assertion by the Supreme Court majority is not now true. No longer is there any possibility of termination of Section 5 coverage for a state. The current application of the Act prohibits any jurisdiction from terminating coverage if there previously existed in that jurisdiction discrepancies in educational opportunity. In view of this application, Justice Black's dissent, I suggest, can no longer be ignored. Let me state at the outset, that the interpretation of the Act does not lend itself to any distinction between de jure or de facto segregation. The argument is that, against a history of unequal educational opportunities, any literacy test maintained would have an inherently discriminatory effect. Lack of equal educational opportunities as well as achievement levels is a condition that Congress itself has found existed nationwide. Let me summarize for you your own findings as well as those of others: 1. Unequal educational opportunity for blacks and whites, whether defined in terms of literacy ability, school facilities and expenditures, or segregation, is not confined to any one region of the nation but exists throughout the United States. Oregon v. Mitchell, 400 U.S. 112, 133-34, 233-36, 283-84 (1970); Hearings on H. 4249 Before Subcommittee No. 5 of House Committee on the Judiciary, 91st Cong., 1st Sess., Ser. 3, 55-57, 223–25 (1969) (1969 House Hearings); Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 Before Subcommittee on Constitutional Rights of Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 185-88, 415-16 (1969-70) (1970 Senate Hearings); E. Q. Campbell, “Negroes, Education, and the Southern States," 47 Social Forces 253 (1969); Office of Education, Equality of Educational Opportunity (the "Coleman Report"); 2. Blacks lag behind whites in literacy ability and reading comprehension in each region of the nation. Coleman Report, at 274; E.Q. Campbell, "Defining and Attaining Equal Educational Opportunity in a Pluralistic Society," 26 Vand.L. Rev. 461, 463 (1973). 3. A greater percentage of blacks than whites was illiterate in each of the states which maintained literacy tests in 1964 but which were not subjected to the prescriptions of Section 5 of the Voting Rights Act. In addition, the median number of years of school completed by whites was higher than that for blacks in all but one of those states. United States Census 1960, Characteristics of the Population, Arizona, California, Connecticut, Delaware, Hawaii, Idaho, Maine, Massachusetts, New Hampshire, New York, North Carolina, Oregon, Washington, and Wyoming, Table 47. 4. In each of the literacy-test states not subject to Section 5 of the Voting Rights Act for which statistics by race are available, the percentage of black students more than one year behind in school in 1950 exceeded the percentage of white students more than one year behind by increasing margins. United States Census 1950, Characteristics of the Population, Arizona, California, Connecticut, Massachusetts, New York, North Carolina, Table 63. See also, United States Census 1960, Characteristics of the Pouplation, Arizona, California, Connecticut, Delaware, Massachusetts, New York, North Carolina, Table 101. 5. A substantial portion of the black students in each of the literacy-test states not subject to Section 5 of the Voting Rights Act in 1970 attended majority black |