laws provide, among other things, that application forms must be filled out "properly and responsively" by the applicant without any assistance, and that a registrar may not tell an applicant why he failed the test because to do so might constitute assistance, and they allegedly give registrars even greater discretion to deny Negroes the right to register on formal, technical, inconsequential errors.11

11

By way of relief the court was asked (1) to declare the challenged state laws unconstitutional as violations of federal constitutional provisions and statutes; (2) to find that by these laws Negroes had been denied the right to vote pursuant to a "pattern and practice" of racial discrimination; 12 (3) to enjoin the defendants from enforcing any of these state laws or in any other way acting to "delay, prevent, hinder, discourage, or harass Negro citizens, on account of their race or color, from applying for registration and becoming registered voters in the State of Mississippi," or using any other interpretation or understanding test which "bears a direct relationship to the quality of public education afforded Negro applicants"; and (4) to order the defendants to register any Negro applicant who is over age 21, able to read, a resident for the period of time prescribed by state law, and not disqualified by state laws disfranchising the insane and certain convicted criminals.

It is apparent that the complaint which the majority of the District Court dismissed charged a long-standing,

11 Miss. Code Ann. § 3213 (Cum. Supp. 1962), as amended by Miss. Laws, 1962, c. 570, is claimed by the Government to have had the latter effect. In its brief in this Court the Government argues that this provision is invalid on its face as contrary to § 101 (a) of the Civil Rights Act of 1964, 78 Stat. 241, amending 42 U. S. C. § 1971 (a) (1958 ed.).

12 Such a finding would by force of 42 U. S. C. § 1971 (e) (1958 ed., Supp. V) authorize a court to make an order declaring that a person denied the right to vote because of color is entitled to vote.

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carefully prepared, and faithfully observed plan to bar Negroes from voting in the State of Mississippi, a plan which the registration statistics included in the complaint would seem to show had been remarkably successful. This brings us to a consideration of the specific grounds assigned by the District Court for its dismissal.

I.

One ground upon which the majority of the District Court dismissed the Government's complaint was that the United States is without authority, absent the clearest possible congressional authorization, to bring an action like this one which challenges the validity of state laws allegedly used as devices to keep Negroes from voting on account of their race. We need not discuss the power of the United States to bring such an action without authorization by Congress, for in 42 U. S. C. § 1971 there is express congressional authorization for the United States to file a suit precisely of this kind. Section 1971 (a) guarantees the right of citizens "who are otherwise qualified by law to vote at any election" to be allowed to vote "without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.' And subsection (c) of § 1971 specifically authorizes the Attorney General to file proper proceedings for preventive relief to protect this right to vote without discrimination on

19 13

13 "All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. . . ." Act of May 31, 1870, 16 Stat. 140, 42 U. S. C. § 1971 (a) (1958 ed.).

account of color whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of that right." The District Court's holding that despite the clear language quoted above the United States still was not authorized to file this suit seems to rest on the emphasis it places on the phrase "otherwise qualified by law" in § 1971 (a). By stressing these words the majority below reached the conclusion that if Negroes were kept from voting by state laws, even though those laws were unconstitutional, instead of being barred by unlawful discriminatory application of laws otherwise valid, then they were not "otherwise qualified" and so § 1971 did not apply to them. In other words, while private persons might file suits under § 1971 against individual registrars who discriminated in applying otherwise valid laws, and while such suits might even be filed by the Government, see United States v.. Raines, 362 U. S. 17, the statute did not authorize the United States to bring suits challenging the validity of

14 74 Stat. 92, 42 U. S. C. § 1971 (c) (1958 ed., Supp. V), provides: "Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person. "Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceedings, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State."

the State's voting laws as such, however discriminatory they might be. We can find no possible justification for such a construction of § 1971 (a) and § 1971 (c). Subsection (a) explicitly stated the legislative purpose of protecting the rights of colored citizens to vote notwithstanding "any constitution, law, custom, usage, or regulation of any State." The phrase "otherwise qualified by law to vote" obviously meant that Negroes must possess the qualifications required of all voters by valid state or federal laws. It is difficult to take seriously the argument that Congress intended to dilute its guarantee of the right to vote regardless of race by saying at the same time that a State was free to disqualify its Negro citizens by laws which violated the United States Constitution. Cf. Neal v. Delaware, 103 U. S. 370. The Fifteenth Amendment protects the right to vote regardless of race against any denial or abridgment by the United States or by any State. Section 1971 was passed by Congress under the authority of the Fifteenth Amendment to enforce that Amendment's guarantee, which protects against any discrimination by a State, its laws, its customs, or its officials in any way. We reject the argument that the Attorney General was without power to institute these proceedings in order to protect the federally guaranteed right to vote without discrimination on account of color.

II.

The District Court held, and it is contended here, that even if the Attorney General did have power to file this suit on behalf of the United States, as we have held he did, nevertheless he was without power to make the State a party defendant. The District Court gave great weight to Mississippi's argument that the Fifteenth Amendment "is directed to persons through whom a state may act and not to the sovereign entity of the state itself." Largely to avoid what it called this "substantial constitutional claim," the District Court proceeded to construe the lan

guage of 1971 as not granting the Attorney General authority to make the State a defendant. We do not agree with that construction.

Section 1971 (c) says that whenever the Attorney General institutes a suit under this section against a state official who has deprived a citizen of his right to vote because of race or color,

"the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State." The District Court accepted the State's argument that this meant that a State can be made a defendant in such a case only when the office of registrar is vacant, so that there is no registrar against whom to file suit. This argument relies on the fact that in a case pending in this Court when the statutory language was changed, registrars had resigned their offices in order to keep from being sued under § 1971. United States v. Alabama, 267 F. 2d 808 (C. A. 5th Cir.), vacated and remanded, 362 U. S. 602. Congress, the State says, passed the provision authorizing suit against a State solely to provide a party defendant when registrars resigned, as they had in the Alabama case. But whatever the reasons Congress had for amending § 1971 (c), and without our now deciding whether it was necessary to do so to permit the United States to sue a State under that section, the language Congress adopted leaves no room for the construction which the District Court put on these provisions. Indeed, on remand in the Alabama case the Fifth Circuit affirmed the District Court's refusal to dismiss the State as a defendant even though new registrars had qualified, and this Court affirmed that judgment. Alabama v. United States, 371 U. S. 37, affirming 304 F. 2d 583 (C. A. 5th Cir.).