1

st

T

The second argument against such a reregistration "solution" is even more basic and even more ironic. Even the fair administration of a new literacy test in the relevant areas would, inevitably, disenfranchise not only many Negroes, but also thousands of illiterate whites who have voted throughout their adult lives.

Our concern today is to enlarge representative government. It is to solicit the consent of all the governed. It is to increase the number of citizens who can vote. What kind of consummate irony would it be for us to act on that concern-and in so doing reduce the ballot, to diminish democracy?

It would not only be ironic; it would be intolerable.

VI. CONCLUSION

I have come before you to describe the proposed Voting Rights Act of 1965, the need for this Act, and some of the questions raised about it, and to do so in considerable detail. I will be happy to respond to your questions as fully as possible. I am prepared certainly, to remain here this morning, this afternoon, this evening, tomorrow, and every day that the committee feels my presence would be helpful. This legislation must be enacted.

However detailed my presentation may be and however extensive your consideration may be, there remains, nevertheless, a single, unomplicated and underlying truth. This legislation is not only necessary, but it is necessary now.

Democracy delayed is democracy denied.

Mr. Chairman, this bill is based on the 15th amendment which, in its own terms, prohibits discrimination on account of race or color voting and which, in its own terms, gives Congress the power to enact legislation to secure that end.

I think the law is clear that where there is a specific grant of power to Congress, the Congress may adopt any appropriate means to secure that end. It is my judgment that in view of the record of the past, n particular, and in view of the demonstrations that can be made that these are areas which have indeed practiced voting discrimination, in view of the fact that it is these tests and devices which have been used to accomplish that end, that Congress may make its decision that a reasonable way, and perhaps the only effective way to effectuate the command of the 15th amendment is to enact steps substantially as this legislation does.

That is, simply to abolish the use of those tests which have been used for this purpose for many, many years, to suspend them until he mandate of the 15th amendment can be fulfilled.

I would like to point out that the formula under the proposed bill for suspending tests is objective, that I have and can continue to introduce material on which Congress can make the judgment that the formula is related to the problem of racial discrimination and olation of the 15th amendment; and, further, that there is a court procedure, if it can be demonstrated that there has been no racial discrimination, whereby a State or county covered may come out from under the provisions of this bill.

I should point out that these means are certainly not prohibited under the Constitution, that they are appropriate in the words of

the court decisions, and they are plainly adapted, again in the words of the court decisions, to the end of eliminating racial discrimination in voting.

It seems to me that that test has been settled really since the very beginning of our country as a right of Congress, and was reaffirmed recently in cases upholding the Civil Rights Act of 1964, which, as the Chairman will recall, was predicted by many to be unconstitutional-by many members of this House and the other body-but which was upheld by the Supreme Court unanimously.

Thus, Mr. Chairman, it is clear that the Constitution will not allow racially discriminatory voting practices to stand. It is even clearer. the Constitution invites Congress not merely to stand by and watch the courts invalidate State practices, but by the terms of the 15th amendment itself, to take a positive role by outlawing the use of any practices utilized to deny the rights of the 15th amendment.

This bill accepts that invitation.

One may, I suppose, grant the constitutionality of the remedy proposed in this bill but nevertheless oppose it on the ground that it places the ballot in the hands of the illiterate. On this theory, the remedy for existing discrimination would be to guarantee the fair administration of literacy tests rather than to abolish them. I suggest that this alternative, Mr. Chairman, is unrealistic.

In fact, the majority of the States-at least 30-find it possible to conduct their elections without any literacy tests whatever. There is no evidence that the quality of government in these States falls below that of the States which impose, or purport to impose, such a requirement.

I doubt if there is any member of this Congress who would take the position that those 30 States have a poorer government than States which have a literacy test.

Whether there is really a valid basis for the use of literacy tests is, therefore, subject to legitimate question. It is not for this reason that the proposed legislation seeks to abolish them in certain places. Rather, we seek to abolish these tests because they have been used in those places as a device to discriminate against Negroes.

Highly literate Negroes have been refused the right to vote. Totally illiterate whites have been allowed to vote. In short, in those areas the literacy test is demonstrably unrelated to intellectual capacity. It is directly related only to one factor: color.

It is not this bill-it is not the Federal Government-which undertakes to eliminate literacy as a requirement for voting in such States or counties. It is the States or counties themselves which have done so, and done so repeatedly, by registering illiterate or barely literate white persons.

The aim of this bill is, rather, to insure that the areas which have done so apply the same standard to all persons equally, to Negroes now just as to whites in the past.

It might be suggested that this kind of discrimination could be ended in a different way-by wiping the registration books clean and requiring all voters, white or Negro, to register anew under a uniformly applied literacy test.

For two reasons, such an approach would not solve, but would compound our present problems.

To subject every citizen to a higher literacy standard would, inevitably, work unfairly against Negroes-Negroes who have for decades been systematically denied educational opportunity available to the Thite population.

Such an impact would produce a real constitutional irony-that Tears of violation of the 14th amendment right of equal protection through equal education would become the excuse and the justification for continuing violation of the 15th amendment right to vote.

The result would be something chillingly close to the mechanism once confidently described by the late Senator Theodore Bilbo of Mississippi, and I quote:

The poll tax won't keep 'em from voting. What keeps 'em from voting is section 244 of the constitution of 1890, that Senator George wrote. It says that Iman to register must be able to read and explain the constitution when read > him. *** And then Senator George wrote a constitution that damn few Thite men and no niggers at all can explain. ***

The second argument against such a reregistration "solution" is even more basic-and even more ironic. Even the fair administration of a new literacy test in the relevant areas would, inevitably, disenfranchise not only many Negroes but also thousands of illiterate whites who have voted throughout their adult lives.

Our concern today is to enlarge representative government, to solicit the consent of all of the governed, to increase the number of citizens who can vote.

What kind of consummate irony would it be for us to act on that concern, and in so doing to reduce the ballot, to diminish democracy? It would not only be ironic; it would be intolerable.

Mr. Chairman, I have come before you to describe the proposed Voting Rights Act of 1965, the need for this act, and some of the questions raised about it, and to do so in considerable detail. I would be happy to respond to your questions as fully as possible and I am prepared, certainly, to remain here this morning, this afternoon, this evening, tomorrow, and every day that the committee feels my presence Would be helpful.

This legislation simply must be enacted.

However, detailed my presentation may be and however extensive your consideration may be, there remains, nevertheless, a single, unomplicated and underlying truth: this legislation is not only necessary but it is necessary now.

Democracy delayed is democracy denied.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Katzenbach, Mr. McCulloch and I only reeived the bill yesterday. It was put on our desks this morning and we have had, of course, insufficient time to analyze it carefully. The questions to be directed to you this morning are the result of more or ess superficial examination of the bill. Nonetheless, I think while You are here we would like to ask some questions of you.

Did I understand that the bill gives you, as the Attorney General, the power of appointing Federal examiners in some six States; that is, Alabama, Louisiana, Mississippi, Georgia, South Carolina, and Virginia? Am I correct in that?

Mr. KATZENBACH. The examiners are actually appointed by the Civil Service Commission, Mr. Chairman.

The CHAIRMAN. Why was the Civil Service Commission selected Mr. KATZENBACH. It was selected because the Civil Service Com mission is a bipartisan body and because there are employees of Civi Service Commission in virtually every county of the country. It wa hoped that if it became necessary to appoint Federal examiners, tha the Civil Service Commission could, in a neutral, nonpolitical way either name employees of the Commission in those counties or, if neces sary, appoint somebody else.

I think it was the reputation of the Civil Service Commission for its bipartisan, fair, nonpolitical activities, that led to its choice as the appointing body.

Not that I would want to cast any reflections on the Attorney General.

The CHAIRMAN. Must these examiners be residents of the States in which they are to operate?

Mr. KATZENBACH. There is no requirement in the bill that they should or must be, Mr. Chairman. I would suppose that in ordinary circumstances they would be. I think that it is generally preferabl to have a local resident perform those functions. He is familiar with the area. He knows the people and it seems to me it is easier for him to make the judgment.

So, I would assume the Civil Service Commission would, in general appoint people from that area.

We have, however, had a problem with local residents of the possibility of their being intimidated and having life within the com munity made very difficult for them. I think it was for that reason we gave the Civil Service Commission, in the proposal, the capacity to send somebody who would not have to bear the brunt of local public opinion in such areas, someone from outside the State, if the Commis sion's judgment should be that that was necessary.

The CHAIRMAN. In one of the previous drafts of the bill, there was a provision that the registrar must be a resident of the State in which he operates?

Mr. KATZENBACH. Yes; that was in a prior draft, Mr. Chairman which you saw. It is not included in the bill as submitted by the President for the reason I just gave. I would hope that, in general, they would be local residents and I think they would be.

The CHAIRMAN. The bill also requires the Bureau of the Census to determine the number of persons, the percentage of persons, who voted or registered in 1964 elections?

Mr. KATZENBACH. Yes, sir.

The CHAIRMAN. You also bring in the Civil Rights Commission into the picture, do you not?

in.

Mr. KATZENBACH. No; the Civil Rights Commission is not brought

The CHAIRMAN. That was in one of the earlier drafts, I believe? Mr. KATZENBACH. One of the earlier drafts had the Civil Rights Commission. The bill as submitted did not.

I might say, as you know, the final version of this bill was arrived at at about 11:50 yesterday morning. I guess the signed letter of transmittal was signed by the President about 25 minutes later and submitted to Congress; so, charges were made right up until yesterday noon. It is understandable that members of this committee have not had a chance to see the later version of it.

The CHAIRMAN. The bill also refers to "political subdivisions."
How far down the political scale does that go?

Mr. KATZENBACH. I believe that the term "political subdivision"
sed in this bill is intended to cover the registration area and that the
Thole bill really is aimed at getting people registered.

The CHAIRMAN. For example, in New York we have what is called in assembly district where the representatives of the lower house of the State legislature are elected. Such assembly districts are then broken down into election districts. I take it that an election district would be deemed a political subdivision?

Mr. KATZENBACH. I think that is possible, Mr. Chairman, but, frankly, you are more familiar with how registration is accomplished in New York than I am. I know how it is accomplished or not accomplished in Alabama.

The CHAIRMAN. What would be the lowest possible political unit in the scale?

Mr. KATZENBACH. What is the area in which registration is done in New York? I am not familiar with that, Mr. Chairman.

The CHAIRMAN. In New York, it is the so-called election district, but what would it be in some of the States that would be affected here? Mr. KATZENBACH. Throughout the affected States, in the South, it is 3 county or parish under the present law; parish in Louisiana. The CHAIRMAN. This bill covers Federal, State, and municipal elections. Would it cover an election for a school bond?

Mr. KATZENBACH. Yes; it would, Mr. Chairman. Every election in which registered electors are permitted to vote would be covered by this bill.

The CHAIRMAN. Would the Federal examiner be empowered to distinguish between citizens of good character and citizens of bad character, that is, would he be able to eliminate former criminals?

Mr. KATZENBACH. Yes; moral character tests would be abolished except insofar as people were convicted of felonies and were not permitted to vote. Subjective tests of moral character which have been sed would be abolished because they have been used on a discriminatory basis.

The CHAIRMAN. You speak of felons. Complaints have been registered with me that in certain sections of the South, misdemeanors have been converted into felonies. Persons have been arrested and have been charged with felonies which should have been misdemeanors. They are asked to plead guilty, they say, and then they can go scot free and unmolested. In other words, they may be trapped into a plea of guilty of a felony. I understand there are scores and scores of such

cases.

Would those persons be prevented from registration?

Mr. KATZENBACH. Under the bill as it is drafted, if they were guilty of a felony, they could be refused the right to vote.

The CHAIRMAN. Would be eliminated?
Mr. KATZENBACH. Yes, Mr. Chairman.

The CHAIRMAN. Would that be fair?

Mr. KATZENBACH. I can imagine circumstances under which it would. be unfair, Mr. Chairman, if the facts as you described them are correct. I am not doubting the facts as you describe them, but I do not think large numbers would be disenfranchised by that device.

I do not think it would be possible to use it to disenfranchise large numbers. In general, conviction of a felony is an accepted State