Amicus Curiae Brief — South Carolina v. Katzenbach
Supreme Court brief1965
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DEC 2 01
JOHN F. DAVIS,
No. 22 Original
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965
STATE OF SOUTH CAROLINA,
Plaintiff,
Vs.
NICHOLAS deB. KATZENBACH, Attorney General of the
United States,
Defendant.
BRIEF FOR THE STATE OF MISSISSIPPI,
AMICUS CURIAE
Joe T. PATTERSON,
Attorney General,
Ducas SHANDs,
Assistant Attorney General,
CHARLES CLARK,
Special Assistant
Attorney General,
State Capitol Building,
Post Office Box 220,
Jackson, Mississippi.
BL. Muxpenmats, Inec., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-3030
Sega OTERO IASG EAE. (RR Ag ARTS EIST HEI AAR
APE ID AR AEE LEE LGN FRR || EES RR ne OI
INDEX
Authority for the Filing of Amicus Curiae Brief ....__
intevest of the Amicus
Request for Permission to Participate in Oral Argu-
NI sipesetsnccnitimeetsncrviertternanistancnirenisiietieparnheniesusoaminansins.....
ee ee
Argument—
I. By the Constitution, the People of the Several
States Created a Central Government of Limited,
I et
II. The Fifteenth Amendment Does Not Vest Au-
thority in Congress to “Suspend” State Literacy
NE eB
A. “Suspension” of the State Literacy Qualifica-
tions for Voting Is Not APPROPRIATE un-
der the Fifteenth Amendment in the Light of
the Legislative History of That Amendment,
Which Discloses That the Fortieth Congress
Considered at Length, but Refused to Include
in the Amendment, a Prohibition of Literacy
cere cs ie, fe IRA SESE TTI RR ie
B. The New Right Which the 15th Amendment
Conferred upon Male Citizens Was the Right
to Vote IN ACCORDANCE WITH STATE
LAW, Free from Denial or Abridgement on
I OT ae
C. There Is No Repugnance or Conflict Between
the Power of State to Fix a Literacy Require-
ment for Electors and the Prohibition of the
15th Amendment o.oo
D. A “Suspension” of the Paramount Power of
the States to Fix Reasonable and Non-Dis-
criminatory Voter Qualifications and to Make
Reasonable Changes in Such Qualifications
Must Be Based upon Authority to Destroy
That Power
10
10
15
24
30
BR ae PIRAEUS PPO PEI! GEST PES PREC ING
II INDEX
III. Neither Misapplication by an Executive Officer
nor Improper Motive or Purpose on the Part of a
Legislator Can Operate to Negate a Statute
Which Is in Fact Constitutionally Valid .............. 32
ia iarcarinicemmenncspewetemosenrcen 38
IV. The Voting Rights Act of 1965 Is a Bill of At-
RRS BERG Sa ee 46
A. In Enacting the Voting Rights Act Congress
Purported to Exercise Purely Judicial Powers
and to Vest Legislative Powers in the Courts 46
B. Legislative Trials Are Abhorrent to the Con-
stitutional Principles of Separation of Powers
SSE AS ES 50
C. The Act Was Drafted to Apply to Known,
Named States and Subdivisions Alone and Its
Purported “Formula” Is Merely a Sophisti-
RGR ec ee nee RS 69
D. The Creation of an Irrational, Irrebuttable
Presumption Results in Legislative Convic-
tion and Forfeiture of Sovereign Rights With-
out Judicial Proceedings ........................:-..0s0c0:« 71
V. The Constitution Does Not Permit the Classifica-
SS SERA SLE ATR 76
sha TAT CT Cee Rca PR OTTO Ree Saat 80
Appendix—
Mississippi Code, as amended June 30, 1965 ............ Al
TABLE OF CASES
Albertson et al. v. SACB, No. 3, Oct. Term 1965,
11/15/65 ...... DE BR EE RR EA AA On 68
Anthony v. Halderman, (1871) 7 Kan. 50, 60 ................ 14, 18
Aptheker et al. v. Secretary of State, 378 U.S. 500, 508,
Fie ee BR LS | ee 49, 68
Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449,
66 L.Ed. 817, 21 A.L.R. 1432 FE EIEN De 5
Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.
2d 822 66
INDEX III
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S.Ct.
inp cen cee OO ai 25
Cameron v. Johnson, ........ * Se senadunsion i , 14
L.Ed.2d 715 (hind tapacin aamteen ana 62
Carrington v. Rash, ZS. ....... » 85 S.Ct. 775, 13 L.Ed.
SR etiesiirenn i iiebinuena 13, 16
Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80
Se ira nntmmreeinrniemttomegnig 47
Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405,
coo) relegate NE ee taellaar 65
Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 ——
Collector v. Day, 78 U.S. (11 Wall.) 113, 20 L.ka. 122... 25
Coyle v. Smith, 221 US. 559, 31 S.Ct. 688, 55 L.Ed.
Sc ae eee ne ee OL ate idee 25, 79
Cummings v. State of Missouri, 71 U.S. (4 Wall.) 277,
seit ot hs pene I, etl iain 57
Davis v. Schnell, 81 F.Supp. 872, Aff. 336 U.S. 933, 69
et 4]
Duke Power Co. y. Greenwood County, 91 F.2d 665, 672,
Aff. 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381... 34
Ellis v. U. S., 206 U.S. 246, 256, 27 S.Ct. 600, 51 L.Ed.
ri Ses wept ee ee a ice aa 35
ep siege oo asa 10
"ae L.Ed2d __ ssectireniheitiin a. Al
Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5
L.Ed.2d 110; 167 F.Supp. 405, 270 F.2d 594. | 43
i4
Re. ous
SO Sen epee
Iv INDEX
Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct.
2” Ag AIAN MITT vwivcipsscacnenineiise in aeibeennlatcncbusesseaddndacces 66
Guinn v. U. S., 283 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed.
SE nicticketapiiticicgialecneegileniag vatailas ..27, 40
Hale v. Wisconsin, 103 U.S. 5, 11, 26 L.Ed. PED esis 7-8
Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d
BN - aise 63
Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 611, 19
L.Ed. 513 51
Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 LEd.
SIT sinssbahcaetiacthcliniepcteetieedebataibenepinineliechssaie tag enpeealineaseaiaenniilalcedcaicabeiabincuion 25
Hopkins Federal Savings & Loan Assn. v. Cleary, 296
U.S. 315, 56 S.Ct. 235, 80 L.Ed. 251, 100 A.L.R. 1403... 25
Hunt v. Richards, (1868) 4 Kan. 549 .. 14
Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80
S.Ct. 813, 4 L.Ed.2d 852, 78 A.L.R.2d 1294 -...0 2. 27
In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 .... 47
James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed.
979 . 25
Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123, 146, 71 S.Ct. 624, 95 L.Ed. 817 ............ 52
Karem v. United States, 121 F. 258 (CCA 6th, 1903) .... 21
Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 190, 26
L.Ed. 377 . 50
Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed.
BE tiene . 40, 43
Lassiter v. Northampton County Board of Elections, 360
U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 ..... ra 27, 63
Linder v. United States, 268 U.S. 5, 17, 45 S.Ct. 446, 69
L.Ed. 819, 39 A.L.R. 229 ....... 8
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31
S.Ct. 337, 55 L.Ed. 368 ....................... 36
Martin v. Hunter’ $s Lessee, 14 USS. e Wheat.) 304, 325,
4 L.Ed. 97 ..
Maxwell v. Dow, 176 US. 581, 20 S.Ct. 448, 44 LEd. 597 10
McCabe v. Atchison, Topeka & Santa Fe eaentied Co.,
235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169
INDEX Vv
McCulloch v. Maryland, 17 US. (4 Wheat.) 316, 403,
Weems. 7, 76
McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6
ayia bear ee Neen aate tata ds 36
McKay v. Campbell, (D.C. Or., 1870) 16 Fed.Cas. 157,
TE I TON eis snrirecninigtionernn 14,17
McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 16
Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed.
OOF sterminrttcoreomnaiestrinerostrtntcnscscdicuene ccc 16
Muller v. Oregon, 208 USS. 412, 28 S.Ct. 324, 52 L.Ed.
ire ee ST 8-9
Nashville, C. & St. L. Ry. Co. v. Browning, 310 U.S. 362,
wn ORE Tee a4
Newberry v. U. S., 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed.
913 ...... see ee nemnoancieanentiinentNanlortetimaiisesiiiity Lg a. (2, 25
Oregon-Wisconsin Timber Holding Co. v. Coos County,
(1914) 71 Ore. 462, 142 p. stay gig, oe 22
Parker v. Brown, 317 US. 341, 63 S.Ct. 307, 87 L.Ed.
OF Sohn slag 26, 31
Permoli v. Municipality No. 1 of the City of New Or-
leans, 44 U.S. (3 How.) 589, 610, 11 L.Ed. ORS 77
Pollard et al. v. Hagan et al., 44 U.S. (3 How.) 212, 224,
EME wiisipiir cc tiketiage 77
Railroad Retirement Bd. v. Alton Railroad Co., 295 U.S.
330, 346, 347, 55 S.Ct. 758, 79 L.Ed. 1468. 8
Railway Express Agency v. Virginia, 358 U.S. 434, 79
<a CC tec
Reynolds v. Simms, 377 U.S. 533, 595, 84 S.Ct. 1362, 12
ENO Reto iteeeinnontininanenteccee
Rhode Island vy. Massachusetts, 37 U.S. (12 Pet.) 657.
ED SUE Ohninnstknnciacene cate
Sinnot v. Davenport, 63 US. (22 How.) 227, 16 L.Ed.
Se Soe nnerct olaniescsedinmmaickerce sc.
Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77
L.Ed. 288, 87 A.L.R. TU Pinta.
Stone y. Smith, (1893) 159 Mass. 413. 34 N.F. 521 |
ae... Bey Snaiaiae ernie CURE AIS ENEMIES Sea SAE rg Nn ea aras
VI INDEX
U. S. v. Amsden, 6 F. 819 (D.C. Ind. 1881) 2.000000... ... 18
U.S. v. Baltimore & Ohio R. R. Co., 84 U.S. (17 Wall.)
Ss Te TIS TI Seeceicdiciots ellsnstdnieasceidvsadidtinpehtnsebeeticcbsenensnves 25
U. S. v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d
SD sai lactchscascbiceaeesteseaateasnsd balielesilelebrsnrcheiaaiataieabiinieaiiaenbiiien 10
US. Brown, ........ US. . ., 85 S.Ct. 1707, 14 L.Ed. 2d
5 SIR EN AES SE orn ne eee Ne eee Pee 32, 52, 56, 57, 68
U. S. v. Carolene Products Co., 304 U.S. 144, 152, 58
I I i | sontiecetneientatinnreniinnensaiie 66
United States v. Constantine, 296 U.S. 287, 299, 56 S.Ct.
SA RTE RE ee ye US 46
United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.
I stain inane 25
U. S. v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed.
ail 32, 56
U.S. v. Miller, 107 F. 913 (D.C. Ind. 1901) ...........000... 20
U.S. v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d
SU aah tecesiadettenbticaceesesiiarsach inci thei aheoonpeteasnicidcanseabiiadeliemaiontl 34, 62, 67
U.S. v. Reese et al., 92 U.S. (2 Otto) 214, 23 L.Ed. 568 ....
Bs LEI n-ne PRA A SR Rae EN OY ONT STE 13, 25, 50
United States v. Romana, No. 2, October Term, 1965,
SS i a icherelenteiinlciomenions 73
United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94
Ee ENR ARNE SiS ce ly SE AO SRC Lorne UN TOI 80
Veix v. Sixth Ward Building & Loan Assn., 310 US.
eo Fie Breen aoe 68
Washington v. State, (1884) 75 Ala. 582, 584, 51 Am.Rep.
TIT senccnessessesire seijinchsicseaandhenth recbnaidtcliaaale x: usheaatbdiaahenladashahalaabeiitaaaudsais 18
Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215,
Si aL ammnEn. GUE citciniesencoebalitiaadehcichiciamramninioditaameciednodmil 73
Williams v. Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42
TRMEEG TEMIEE. Gecesrsscsnn-csncincasephentidaedatieiadiassebitiadesoniaiaboctsuch Ailasaantios 43
Wood v. Fitzgerald, 3 Or. 568, 580 20.0... cee 14
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.
UTE coucindsthansdieicdees issveihicnde doch dimciagansdeiadcatanmandee 38. 29, 40, 42, 48
—
CoNsTITUTIONS
INDEX VII
Connecticut—Constitution of 1818, as amended in 1845,
Art. VIII, Laws of 1874, P. 132 14
Illinois—Constitution of 1847, Art. VI, Sec. 1; Starr and
Curtis Anno. Statutes of tL eee 14
Indiana—Constitution of 1851, Art. II, Secs. 2 and 5,
ae ae 14
Kansas—Constitution of 1859, Art. V, Sec. 1 icine ee
Michigan—Constitution of 1850. Art. VII, Sec. 1;
Howell’s Anno. Statutes of « 5 pee 14
Nevada—Original Constitution, Art. IT, Sec. 1; Cutting’s
Complied Laws of Nevada, 1861-1900, Sec. 207 14
Ohio—Constitution of 1851, Art. V, Sec. 1; Swan &
Saylor Code of 1868, P. 336-9; Laws of 1869, P. 424 __ 14
Oregon—Constitution of 1857. Art. II, Sec. 2; Code of
Civ. Proc. (1863), i 14
United States Constitution—
Article I, Sections 2 cle 5 nC AN 6,9
spied in: Sgn tan oh aaa .32, 33
Article IV, Section 3, ME ir ru 76, 80
WHAmninet 9, 13,14
15th Amendment .__ «.3, 4, 6,9, 10, 11, 13, 14, 15. 27, 28
NE 6
OE 9
Oe NE er 9
OTHER AUTHORITIES
Act of Admission. December 10, 1817, 3 Stat. (L. & B.
et eetinti ciel 2, 76
Atlantic Monthly, April issue, 1901, p. 473, Daniel H.
Lo se pane hI ia aaa 37
Congressional Globe, ei senin oes, a a 13, 16
Enabling Act of March 1. 1817, 3 Stat. (L. & B. Ed.) 342 2, 76
Federalist. No. 59. Madison Ed..p.279.0 11
|
VIII INDEX
Hearings before Committee on the Judiciary, U. S. Sen-
ate, 89th Congress, S. 1564, Part 1
sense 11, 23, 29, 31, 48, 61, 67, 69, 71, 74
Hearings before Subcommittee No. 5, Committee on the
Judiciary, House of Representatives, 89th Congress,
H.R. 6400, Ser. No. 2 .................... 11, 23, 47, 60, 67, 69. 71, 74
House Hearings; House of Representatives, Report No.
439, 89th Congress, 1st Session, pp. 16-19 ........ 11, 27, 61, 74
Rules of the Supreme Court of the United States, Rule
CI cia cata hte cc donndindlentctcanieineniiaduteisniniitiosione 1
United States Senate Report No. 162, Part 3, 89th Con-
I, alee I Mh SE cd bis cincedprcctsseetonineontaemnesnecsoosnvense 12
Voting Rights Act of 1965, Public Law 89-110 ................
sldbibedestniddeadiaietalalsss aiid cionatatbinats 2, 3, 4, 5, 6, 9, 11, 28, 52
1962 Weaver Constitutional Law Essay Winner; Ritz,
“Free Elections and the Power of Congress Over
Voter Qualification”; 49 ABA Journal 949 ................ 10
MON CE SAF NEE PNW AEIIE TH 0 Het ERE ce
RPC TIT Lake at, (TIN a FI
No. 22 Original
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965
STATE OF SOUTH CAROLINA,
Plaintiff,
Vs.
NICHOLAS deB. KATZENBACH, Attorney General of the
United States,
Defendant.
BRIEF FOR THE STATE OF MISSISSIPPI,
AMICUS CURIAE
AUTHORITY FOR THE FILING OF AMICUS
CURIAE BRIEF
The Court’s order of November 5,
permits the filing of this brief.’
ee
1. See also Rule 42 (2) and (4), Rules of the Supreme
Court of the United States.
1965, in this cause
———mag
INTEREST OF THE AMICUS
The State of Mississippi became the 20th member of the
Union in the year 1817 when it was “admitted on an equal
footing with the original states in all respects whatever,”
There is now pending in the United States District Court
for the Southern District of Mississippi, Jackson Division,
Civil Action No. 3312, styled “United States of America,
Plaintiff, v. The State of Mississippi et al., Defendants”,
wherein the constitutionality of the Voting Rights Act of
1965, Public Law 89-110, is precisely drawn in issue as to its
application to and effect upon the new statutes of the State
of Mississippi relating to qualifications required of electors
which are set out in Appendix A hereto. This district court
action directly and not abstractly raises questions of
constitutionality both included within and in addition to
those raised by the South Carolina case. Both the sover-
eignty and equality of the State of Mississippi could be
affected by an improper decision of the cause pending here.
REQUEST FOR PERMISSION TO PARTICIPATE IN
ORAL ARGUMENT
Pursuant to leave granted in the Court’s said order of
November 5, 1965, request is hereby made to the Clerk
of this Court that the State of Mississippi, as Amicus Curiae,
be allowed to participate in the oral argument of this cause
on January 17, 1965, or as soon thereafter as the State may
be heard.
2. Act of Admission, December 10, 1817, 3 Stat. (L. & B.
Ed.) 472. See also Enabling Act of March 1, 1817, 3 Stat. (L.
& B. Ed.) 348. The Act of Admission contained a finding that
the requirement of the Enabling Act for the establishment of a
republican form of government had béen met.
SUMMARY OF ARGUMENT
Discussions of the Voting Rights Act of 1965 in the
Congress were based on a false premise. The Constitution
of the United States grants no powers to the State Govern-
ments. That document and its Amendments create a central
government of limited enumerated powers, none of which
powers grant or include authority to affirmatively establish
qualifications for electors in the various states.
The provision of the Voting Rights Act purporting to
“suspend” the rights of selected States to use a literacy
qualification for voting is Particular'y “constitutional in
the light of the history of the adoption of the 15th Amend-
ment. That history discloses that the 40th Congress which
proposed the 15th Amendment expressly debated the in-
clusion of prohibitions against education, property and
religious tests but finally determined to include only pro-
hibitions against race, color or previous condition of
servitude. The history of al] provisions of the original
Constitution and the other Amendments likewise discloses
a complete lack of support for this Act.
The only new right which the 15th Amendment con-
ferred was the right of male citizens to vote if they met
State qualifications which did not deny or abridge the right
to vote on account of race. Every republican form of
government withholds the right of franchise from some
portion of its constituents on the basis of its own ideas of
proper qualifications; and all courts have long affirmed that
the Constitution does not confer suffrage on anyone. In
America, voter qualifications have always been based upon
the laws of the separate States. The privilege of suffrage
becomes a right to vote only when a citizen comes within
the limits of the privilege as defined by State legislation.
—_ Se nee REN.
ira
The central government can have no legitimate concern
with “enlarging representative government” or with
“increasing democracy” because, under our Constitution,
Congress is not empowered to create or require any
particular combination of qualifications for the electors of
any State or all of them. When literacy requirements are
plain and reasonable and equate with the bare mechanical
ability to mark a ballot and comprehend election notices
and voting instructions, such requirements cannot discrimi-
nate on account of race or color. Such a requirement is so
clearly not conflicting with or repugnant to the command of
the 15th Amendment that Congress cannot constitutionally
create a repugnance by its attempts to legislate “enforce-
| ment.”
There is a gross anomaly in this legislation. The Voting
Rights Act was aimed at correcting misadministration.
Congress conceded that they were dealing with voting
standards which did not, on their face, discriminate on
account of race. Therefore when Congress essayed to
destroy such laws in some States on the basis that it was
the easy, convenient way to stop occasions of misuse in
certain counties and parishes, it erred. It was patently
improper to despoil South Carolina’s requirement that
her voters possess marginal literacy, since her “conviction”
was based on the allegations of misadministration of other
laws in other States.
There is no such thing as suspended sovereignty. If
the power to suspend exists it can be exercised to suspend
for 100 years as easily as for five. It can suspend the
entire range of qualifications as easily as it can suspend
one. Insofar as South Carolina's sovereignty is concerned,
there is no difference between the power to suspend and
the power to destroy her voter laws.
5
If a statute be valid and non-diseriminatory by its
plain terms, it cannot be destroyed or rewritten by an
administration which misuses it nor can it be debilitated by
Congress’ looking beneath the surface of the law in an
attempt to divine some improper legislative motive. In
order for a statute, which is Within a State's power to enact,
to be invalid, it must have the inevitable effect of operating
discriminatorily or it must vest arbitrary power in adminis-
trative officials. Laws which are capable of a fair, even
application and have the effect of operating equally may
be vehicles of discrimination in the hands of evi] men but,
in such cases, correction must work on the men not the
statute. This is not to say that misadministration cannot
give rise to a constitutional claim of denial of equal protec-
tion of law, it is only to state that misadministration can
never make a bad statute good nor can it make a good
statute bad.
type of function amounts to a legislative trial and is a bill
of attainder. The States attained under this act are
inflicted with deprivations of their unqualified rights to
use valid, constitutional laws and to make reasonable
changes in their voter requirements for a five-year period
While other states, both with and without past histories
of discrimination, are permitted to use and enforce identical
laws. Such principles of legislation have recently been
condemned by this Court in the field of regulation of
Communist activities. The Constitution is no less available +
to and protective of the sovereign State of South Carolina
than it is to the Communist Party.
Although the act purports to use a formula to deter-
mine its coverage, the “formula” is a subterfuge to cover
6
the fact that Congress was legislating against selected states
that were frequently named in its discussions and were
arbitrarily chosen for legislative adjudication. The “for-
mula” looks exclusively to the past so that it will not in
the future accidentally catch any States other than those
singled out for punishment now. The “formula” does not
define a standard of conduct that bears a reasonable rela-
tionship to proving the claimed wrongdoing, rather, it de-
fines only the States and counties which have been selected.
As drawn, the act clearly violates the right of South
Carolina and every other state to equal footing as respects
political standing and sovereignty within the Union.
Congress exceeded the limits of the Constitution in
enacting the Voting Rights Act of 1965.
ARGUMENT
I.
By the Constitution, the People of the Several States
Created a Central Government of Limited,
Enumerated Powers,
A recurrence to fundamentals is an apt beginning be-
cause throughout committee proceedings and debates Con-
gress discussed the constitutional issues raised by this
legislation in terms, on the one hand, of its power to legis-
late under the 15th Amendment and, on the other hand,
what was referred to as the power “granted” to the states
to fix voter qualifications under Article I, Sections 2 and
4, and under the first section of the 17th Amendment. The
fallacy of this very basic premise is obvious.
Practically since the Ninth and Tenth Amendments of
the Bill of Rights made it explicit, this Court’s opinions have
repeatedly pointed out that our federalism is not built upon
—_
7
a central government possessing general powers, sur-
rounded by satellite states occupying subservient govern-
mental roles. There are no powers granted to the States
by the Constitution. The Court’s own words negate the
congressional premise and best illustrate the true structure
of the United States.
“... (After the adoption of the Constitution) the sover.
eign powers vested in the state governments, by their
respective constitutions, remained unaltered and un-
impaired, except so far as they were granted to the
government of the United States.” Per Story, Justice,
speaking in Martin v. Hunter’s Lessee *
“No political dreamer was ever wild enough to think
of breaking down the lines which separate the states and
of compounding the American people into one common
mass. ... From these (State) conventions the Con-
stitution (of the United States) derives its whole
authority. ... This government is acknowledged by
all to be one of enumerated powers. The principle,
that it can exercise only the powers granted to it, would
seem too apparent to have required to be enforced by
all those arguments which its enlightened friends, while
it was depending before the people, found it necessary
to urge. That principle is now universally admitted.
“Should Congress, in the execution of its powers, adopt
measures which are prohibited by the constitution: or
should congress, under the pretext of executing its
powers, pass laws for the accomplishment of objects
not intrusted to the government; it would become the
painful duty of this tribunal, should a case requiring
such a decision come before it, to say, that such an act
was not the law of the land.” Per Marshall, Chief
Justice, speaking in McCulloch v. Maryland.‘
“The General Government has no powers but such as
are given to it expressly or by implication.
3. 14U.S. (1 Wheat.) 304, 325, 4 L.Ed. 97.
4. 17 US. (4 Wheat.) 316, 403, 405 and 423, 4 L.Ed. 579.
. en
# tn earn aa ta SLOP L BRE ET EEL ERE
IPN RTs fat,» op ES yA VRE ic Cy Re Ee ee
8
“The States and their Legislatures have all such as have
not been surrendered or prohibited to them.” Per
Swayne, Justice, speaking in Hale v. Wisconsin.’
“Congress cannot, under the pretext of executing
delegated power, pass laws for the accomplishment of
objects not intrusted to the federal government. And
we accept as established doctrine that any provision
of an act of Congress ostensibly enacted under power
granted by the Constitution, not naturally and reason-
ably adapted to the effective exercise of such power,
but solely to the achievement of something plainly
within power reserved to the states, is invalid and
cannot be enforced.” Per McReynolds, Justice, speak-
ing in Linder v. United States."
“ Though we should think the measure embodies a
valuable social plan and be in entire sympathy with its
purpose and intended results, if the provisions go be-
yond the boundaries of constitutional power we must so
declare.
“The federal government is one of enumerated powers;
those not delegated to the United States by the Con-
stitution, nor prohibited by it to the states, are reserved
to the states or to the people. The Constitution is not
a statute, but the supreme law of the land to which
all statutes must conform, and the powers conferred
upon the federal government are to be reasonably and
fairly construed, with a view to effectuating their
purposes. But recognition of this principle cannot
justify attempted exercise of a power clearly beyond
the true purpose of the grant.” Per Roberts, Justice,
speaking in Railroad Retirement Bd. v. Alton Railroad
Co.
“It is the peculiar value of a written constitution that it
places in unchanging form limitations upon legislative
5. 103 U.S. 5, 11, 26 L.Ed. 302.
6. 268 US. 5, 17, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R. 229.
7. 295 US. 330, 346, 347, 55 S.Ct. 758, 79 L.Ed. 1468.
—_~>~_——
action, and thus gives a permanence and stability to
popular government which otherwise would be lack-
ing.” Per Brewer, Justice, speaking in Muller y.
Oregon.*
9
The 15th and 19th Amendments prohibit denial or
abridgement of the right to vote on account of race and sex.
The 24th Amendment proscribes poll and other tax
prerequisites in Federal elections. Congress is given the
power to enforce these prohibitions. Article I, Section 4,
gives Congress permission to make or alter regulations
prescribing the times, places and manner of holding elec-
tions for Federal Congressmen. Except for the reduction
of representation clause of the 14th Amendment, the
Constitution of the United States is otherwise silent as to
Congressional power to control the elector qualification and
voting processes of the several States. Therefore, under
proper constitutional precepts the remaining plenary
powers belong to the States to fix and change qualifications
of electors and to prescribe reasonable procedures and
regulations to prevent corrupt practices in voter registra-
tion and elections, subject only to the general judicial
protections of the Constitution applicable to all State action
in the execution and enforcement of its Statutory and
decisional policies.
The Founding Fathers undertook to establish a con-
stitutional republic and explicitly required that each State
be guaranteed a republican form of government. The
persuasions urged upon Congress to assume to extend
suffrage to citizens of selected States, contrary to the laws
of those states, were urgings to create a government of
men and not of laws, and outside of the limits of the Federal
Constitution. In respondent to these urgings by enacting
the Voting Rights Act of 1965, Congress exceeded its con-
stitutional powers.
8. 208 US. 412, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann’ Cas.
957.
. dS URI PNT ELEMENT EIR ee
5 . RR Ses Ryrthae SHARE ny hea Oe
10
II.
The Fifteenth Amendment Does Not Vest Authority in
Congress to “Suspend” State Literacy Qualifications.
A.
“Suspension” of the State Literacy Qualifications for
Voting Is Not APPROPRIATE under the Fifteenth
Amendment in the Light of the Legislative History of
That Amendment, Which Discloses That the Fortieth
Congress Considered at Length, But Refused to
Include in the Amendment, a Prohibition of Literacy
Qualifications.
This Court has long adhered to the practice of inter-
preting provisions of the Constitution in the light of the
conditions existing at the time of their enactment.’ Rec-
ords of the debates in the Constitutional Convention and
contemporary writings, such as The Federalist papers, are
often quoted in support of interpretations of the original
document. It is equally appropriate to refer to the debates
in Congress and ratifying state legislatures to ascertzin
the true intent and meaning of the several amendments.”
There was certainly no thought of authorizing Con-
gressional setting of voter qualifications in the original
Constitution. Not even the leading exponent of centraliza-
tion, Alexander Hamilton, dared to propose federal regu-
lation of State voter qualification. It was Hamilton who
9. See, e.g., Rhode Island v. Massachusetts, 37 U.S. (12 Pet.)
657, 9 L.Ed. 1233; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44
L.Ed. 597; Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed.
527, 38 A.L.R. 31; U. S. v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12
L.Ed.2d 23.
10. For a thoroughly documented discussion of the orig-
inal constitution’s history in the field of voting qualifications
for Federal elections, see the 1962 Weaver Constitutional Law
Essay Winner; Ritz, “Free Elections and the Power of Congress
Over Voter Qualification”; 49 ABA Journal 949.
11
proposed that the Constitution be so framed as to give the
Central Government power to appoint the Chief Execu-
tive of each state, whose appointment would extend dur-
ing good behavior and who would be vested with the power
of absolute veto over any acts of the State legislature. But
when it came to the creation of Federal electors, Hamil-
ton wrote:
“Suppose an article be introduced into the Constitu-
tion empowering the United States to regulate the
elections for the particular States, would any man
have hesitated to condemn it, both as an unwarrant-
able transposition of power, and as a premeditated
engine for the destruction of the state governments?”""
The portions of the Voting Rights Act which are in-
volved in this proceeding depend solely on the 15th
Amendment for their constitutional foundation.!”
11. Federalist No. 59, Madison Edition, p. 279.
12. See, e.g., in Hearings before Subcommittee No. 5, Com-
mittee on the Judiciary, House of Representatives, 89th Congress,
H.R. 6400, Ser. No. 2:
“Mr. Katzenbach: As drafted this is based entirely on
the legislative provision of the 15th amendment which em-
powers Congress to enact legislation in order to effectuate
the substantive prohibitions against discrimination on the
ground of race or color.” (p. 50)
See, also, pp. 12-19 in the House Hearings; House of Rep-
resentatives, Report No. 439, 89th Congress, 1st Session, pp. 16-19;
Rearings before Committee on the Judiciary, United States Senate,
89th Congress, S. 1564, Part 1:
This legislation has only one aim—to effectuate at long
last the promise of the 15th amendment—that there shall
be no discrimination on account of race or color with respect
to the right to vote. That is the only purpose of the pro-
posed bill. It is therefore, truly legisiation “designed to
enforce” the amendment. (p. 20)
“Senator Ervin: Under this bill the literacy test that
12
The legislative history of the proposal of the 15th
Amendment makes it transparant that Congress intended
by the amendment to forbid only the denial or abridge-
ment of the right to vote on account of race, color or pre-
vious condition of servitude. Both branches expressly con-
sidered and extensively debated making the proposal into
a sweeping constitutional veto of state voter qualifications
based upon educational, property and religious tests, in
addition to race; but after the House refused to concur
in a narrowly passed Senate proposal to this effect, the
amendment was proposed to the States in its present form.
Rather than lengthen this brief, we refer to the outstand-
ing thorough and copiously documented treatise on this
subject which is the appendix to the brief filed in this
proceeding by the Commonwealth of Virginia, Amicus
Curiae.
Although we submit that the 14th Amendment was not
intended to furnish any base for the portions of the Vot-
ing Rights Act which are presented by South Carolina's
complaint, and that it could not validly furnish any such
base if it had been put forward, we would also respectfully
refer the Court to Part I B of the dissent of Mr. Justice
Attorney General Katzenbach: That is right, Senator
because this is based on the 15th amendment. And I do not
believe that that situation in New York could be cured under
the 15th amendment.” (p. 75).
Later, the Puerto Rican provision was added [Section 4 (e)] as
was a poll tax provision [Section 10], but neither are involved
here.
Hereinafter, for sake of brevity, these records will be re-
ferred to as House Hearings, Hours Report, and Senate Hear-
ings, respectively. To the same effect is United States Senate
Report No. 162, Part 3, 89th Congress, Ist Session, pp. 1, 17.
See also the Brief filed by the United States in Original Nos.
23, 24 and 25, October Term, 1965, p. 17.
Emphasis in all quotations is added except where otherwise
indicated.
r
13
Harlan in Reynolds v. Simms," in which he demonstrates
by quotations from the debates of the 39th Congress and
references to the various state ratifying actions that the
14th Amendment was in nowise intended to cover the
affirmative fixing of qualifications for electors. Espe-
cially do we assert that the 14th Amendment does not bar
the use by any state of a literacy requirement so reasonable
that it requires no more than that electors possess the
naked manual ability to place the mark they intend upon a
ballot."* The only relationship the 14th Amendment bears
to suffrage is the same which it bears to all types of classi-
fications; namely, it proscribes arbitrary devices and for-
mulae which deny equal protection of law, such as that
condemned in Carrington v. Rash.”
If the 14th Amendment were ever to be distorted into
authority for Congress to demand that all states have the
same federally established or approved elector qualifica-
tions, the Union of the Constitution would be dead. A
greater opportunity to create a self-perpetuating oli-
garchy could not be envisioned than to give to Congress the
power to designate the qualifications of those who could
vote them into office. The very fact that the 15th Amend-
ment was adopted recognizes what Section 2 of the 14th
Amendment implies, and that is that before the adoption
of the 15th Amendment a state could constitutionally limit
the franchise to Caucasians."
13. 377 U.S. 533, 595, 84 S.Ct. 1362, 12 L.Ed.2d 506.
14. History of the 39th Congress which proposed the 14th
Amendment shows that that same Congress chose to impose a
literacy test on all new voters in the District of Columbia, the bulk
of whom were Negroes. It further shows that the District bill
kad the support of most of those who supported the proposal of
the 14th Amendment and thet the bill was Passed over the veto
oi the then President Johnson. (See Volume 39 of the Congres-
sional Globe.)
15. US. » 85 S.Ct. 775, 13 L.Ed.2d 675.
16. U.S. v. Reese et al., 92 US. (2 Otto) 214, 22 L.Rd. 563.
STARS RAB SRF ALE LET ST
14
The States themselves, in the times of the adoption
of the Fourteenth and Fifteenth Amendments, certainly
did not evidence any opinion that the Fourteenth Amend-
ment operated to enfranchise Negro citizens. In fact, just
the opposite appears. At least sixteen States outside the
Confederacy restricted the franchise to Caucasians (and
in some cases, to Indians). Most of them continued this
pattern of racially restricted suffrage after the ratifica-
tion of the Fourteenth Amendment."
This suit presents a direct confrontation between the
Constitution and the Voting Rights Act. Both cannot stand;
17. Oregon-Constitution of 1857 Art. IH, See. 2; Chapter
XIII, Code of Civ. Proc. (1863). Remained in organic law until
self-executing provisions of the 15th Amendment took effect.
See, Wood v. Fitzgerald, 3 Or. 568, 580, and McKay v. Campbell,
Infra, Page 19.
Nevada-Original Constitution, Art. I], See. 1, not amended
until the ratification of Art. XVII in 1880. See Sec. 207, Cutting’s
Compiled Laws of Nevada 1861-1900.
Kansas-Constitution of 1859, Art. V, Sec. 1. See Anthony v.
Halderman, Infra, Page 19 and cf. Hunt v. Richards, (1868) 4
Kan. 549.
Michigan-Constitution of 1850, Art. VII, Sec. 1, not amended
until ratification of amendment in 1870. Howell's Anno. Statutes
of 1882, P. 55.
IUinois-Constitution of 1847, Art. VI, Sec. 1 not amended
until ratification of amendment July 2, 1870. Starr and Curtis
Anno. Statutes of 1885, P. 99.
Connecticut-Constitution of 1818, as amended in 1845, Art.
VIII of amendments, after one unsuccessful attempt in 1869 to
enfranchise Negroes the Legislature deleted the word “white
from the Constitution in 1874. Laws of 1874, P. 132.
Ohio-Constitution of 1851, Art. V, Sec. 1, Severe provisions
enforcing exclusively white suffrage were adopted on April 16,
1868, Swan & Saylor Code 1868, P. 336-9. May 7, 1869, the
Legislature rejected the 15th Amendment reciting that the people
of Ohio had recently rejected “Negro suffrage” by a majority of
over 50,000 votes. Laws of 1869, P. 424.
Indiana-Constitution of 1851, Art. II, Sees. 2 and 5 not
amended until after July 1, 1870. See Davis Supplement to
Gavin & Hard Code.
_
one must fall. To permit the Voting Rights Act to stand
will result in sanctioning: (1) that which was rejected by
the draftsmen of the Constitution of the United States, (2)
that which would have prevented the adoption of that
Constitution by the States which did adopt it, and (3)
that which the 39th and 40th Congresses refused to in-
clude in the prohibitions of either the Fourteenth or the
Fifteenth Amendments.
15
If neither the original document, nor the 14th, nor the
15th Amendment were designed or intended to proscribe
State adoption of a fair, reasonable literacy requirement
as a qualification for electors, a fortiori the action of Con
gress in adopting the Voting Rights Act in a form which
“suspends” just such a qualification in South Carolina and
leaves it in use and available for use in other states is
without semblance of constitutional support.
B
The New Right Which the 15th Amendment Conferred
upon Male Citizens Was the Right to Vote IN AC-
CORDANCE WITH STATE LAW, Free from Denial
or Abridgement on Account of Race.
Although the Fifteenth Amendment has been referred
to as creating universal male suffrage, only a moment’s
reflection is necessary to determine that such a characteri-
zation is wholly inaccurate. Some States extend suffrage
to 18 year olds, others require the attainment of 21 years
of age. Residence requirements, sanity requirements, char-
acter requirements, literacy requirements, poll tax re-
quirements, temporary and permanent registration pro-
cedures and provisions of corrupt practice acts, all serve
to reduce suffrage in varying degrees and to differing
extents in the several States. None allows all males or all
citizens the right of the ballot. Almost 100 vears ago in
16
the debates on the 14th Amendment this same thought
was expressed on the Senate floor, thus:
“All the people, or all the members of a State or com-
munity, are equally entitled to protection; they are all
subject to its laws; they must all share its burdens,
and they are all interested in its legislation and gov-
ernment.
“Notwithstanding this, no State or community pro-
fessing to be republican allows all its people to vote.
Every one fixes for itself some rule which, in its
judgment, will furnish a body of voters or electors
who will most wisely and safely represent the wishes
and interests of the whole people. The right or fran-
chise of voting has, probably, been more widely ex-
tended in these American States than in any other pro-
fessed republican Government, but in the most liberal
of these it has always been confined to a small minor-
ity of the whole people. In none of our States have
females, or males under twenty-one years of age,
ever been allowed to vote.
“The truth is that the whole system of suffrage of any
republican State is wholly artificial, founded upon its
own ideas of the number and class of persons who will
best represent the wishes and interests of the whole
people.”"*
The numerous “voting” cases decided by this Court,
from Minor v. Happersett’® to McPherson v. Blacker” to
the Carrington case™ will obviously be extensively dis-
cussed by the principal litigants.
The amicus feels that it would be of more interest to
the Court to supply in this brief a ready reference to the
reasoning of other courts which have dealt with this sub-
18. 39 Congressional Globe (June 5, 1866), p. 2962.
19. 88 U.S. (21 Wall.) 162, 22 L.Ed. 627.
20. 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869.
21. Footnote 15, supra, p. 13.
17
ject reasonably near to the time of the adoption of the
15th Amendment.
In McKay v. Campbell,?* the Court reasoned:
“The fifteenth amendment above quoted, declares
in effect that citizens of the United States and of the
several states shall vote in their respective states at
all elections by the people, without distinction on ac-
count of race, color or previous condition of servitude.
But the amendment does not take away the power
of the several states to deny the right of citizens of the
United States to vote on any other account than those
mentioned therein. For instance, notwithstanding the
amendment, any state may deny the right of suf-
frage to citizens of the United States, on account of
age, sex, place of birth, vocation, want of property or
intelligence, neglect of civic duties, crime, etc. The
power of Congress in the premises is limited to the
scope and object of the amendment. It can only legis-
late to enforce the amendment, that is, to secure the
right to citizens of the United States to vote in the
several states where they reside, without the distinction
of race, color or previous condition of servitude.”
The Kansas Constitution contained the following arti-
cle on franchise:
“Every white male person, of twenty-one years
and upwards, belonging to either of the following
classes, who shall have resided in Kansas six months
next preceding any election, and in the township or
ward in which he offers to vote at least thirty days
next preceding such election, shall be deemed a quali-
fied elector.”
On the claim of one denied the ballot, the Kansas
Supreme Court wrote:
22. (D.C. Or., 1870) 16 Fed.Cas. 157, 160, Case #8839.
FEE tat AEE ERS TEE OPERA, ORE
18
“The object and effect of the Fifteenth Amend-
ment to the Federal Constitution were to place the
colored man in the matter of suffrage on the same
basis with the white. It does not give him the right
to vote independent of the restrictions and qualifica-
tions, such as age and residence, imposed by the State
Constitution upon the white man. The colored man, to
become a voter, as well as the white man, must be
twenty-one years of age, six months a resident of the
State, and thirty days a resident of the township or
ward. That amendment operates no further than to
strike the word ‘white’ from the State Constitution.”
In U. S. v. Amsden,”' it was succinctly stated:
“The right to vote in the states comes from the states,
while only the right of exemption from discrimination
comes from the United States.”
The Supreme Court of Alabama in a well documented
opinion in Washington v. State,» expressed the following
views:
“It may be laid down as a sound proposition, using
the language of Mr. Cooley, that ‘participation in the
elective franchise is a privilege rather than a right, and
it is granted or denied on grounds of general policy;
the prevailing view being that it should be as general
as possible, consistent with the public safety.—
Cooley’s Con. Lim. (5th Ed.) 752 (*599). Mr. Story,
without undertaking to say whether it has its founda-
tion in natural right or not, says it ‘has always been
treated in the practice of nations as a strictly civil
right, derived from and regulated by each society
according to its own free will and pleasure.’—1 Story’s
Const. (4th Ed.) §§ 579-582. The weight of both rea-
son and of authority, however, as we shall see, sup-
23. Anthony v. Halderman, (1871) 7 Kan. 50, 60.
24. 6 F. 819 (D.C. Ind. 1881).
25. (1884) 75 Ala. 582, 584, 51 Am.Rep. 479.
19
port the view that political suffrage is not an absolute
or natural right, but is a privilege conventionally
conferred upon the citizen by the sovereignty. There
can be practically no such thing as universal suffrage,
and it is believed that no such theory is recognized
among any people. Some are necessarily excluded on
the ground of infancy, and the Privilege is infinitely
varied among others, either upon the ground of public
policy, or for reasons that seem arbitrary. No one can
lawfully vote under any government of laws except
those who are expressly authorized by law. It is well
| settled, therefore, under our form of government, that
| the right is one conferred by constitutions and stat-
| utes, and is the subject of exclusive regulation by the
| State, limited only by the provisions of the Fifteenth
| Amendment to the Federal Constitution, which pro-
hibits any discrimination on account of ‘race, color,
or previous condition of servitude.’—Cooley’s Cons.
Lim. (5th Ed.) 752 et seq.; McCreary on Elec. (2d Ed.)
§ 3; Brightley’s Elec. Cases, 27; Huber vy. Reiley, 53
Penn. St. 112. The States having the power to confer
or to withhold the right, in such manner as the people
may deem best for their welfare, it necessarily fol-
lows that they may confer it upon such conditions
or qualifications as they may see fit, subject only to
the limitation above mentioned.” (Emphasis by the
Court).
The Supreme Court of Massachusetts in Stone vy.
Smith,’ put the rule thus:
“Article 14 of the amendments of the constitution of
the United States (section 2) provides that, ‘when
the right to vote at any election, * * * is denied to
any of the male inhabitants of such states, being
twenty-one years of age and citizens of the United
States, or in any way abridged, except for participa-
tion in rebellion or other cause, the basis of repre-
sentation therein shall be reduced in the proportion
26. (1893) 159 Mass. 413, 34 N_E. 521.
ee
—_ PEG YRORO ST SL AE BO SURIE GED SS ARE IIE REM EIEN arty
20
which the number of such citizens shall bear to the
whole number of such citizens, twenty-one years of
age, in such state.” This distinetly recognizes the
right of a state to deny or abridge the right to vote
of the male inhabitants who are 21 years of age, and
it is well known that many of the states have, from
time to time, by an impartial and uniform rule of
prohibition, denied the right to vote to such of their
male inhabitants as were thought not to possess the
qualifications necessary for an independent and in-
telligent exercise of the right. Article 15 of the amend-
ments of the constitution of the United States pro-
vides that ‘the right of the 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 pre
vious condition of servitude.” This is the only pro-
hibition on the states contained in the constitution
of the United States which concerns the right to vote.”
In U.S. vy. Miller! it was stated:
“It is manifest that no power is conferred on Con-
gress by the second section to enact legislation for the
regulation and control of elections generally, nor for
securing to the citizens of the United States the right
to vote at all elections, ‘The right of suffrage is not
inherent in citizenship, ner is it a natural and inalien-
able right, like the right to life, liberty, and the pur-
suit of happiness, Unless restrained by constitutional
limitation, the legislature may lawfully confer the
right of suffrage upon such portion of the citizens of
the United States as it may deem expedient, and may
deny that right to all others, Before the adoption of
the fifteenth amendment, it was within the power of
the state to exclude citizens of the United States fram
voting an account of race, age, property, education, or
on any other ground however, arbitrary or whimsical.
The constitution of the United States, before the adop-
tion of the fifteenth amendment, in no wise interfered
et 107 F Os (DC. Ind 1901)
e~*~7VWX"
21
with this absolute power of the state to control the
right of suffrage in accordance with its own views of
expediency or propriety, It simply secured the right
to vote for members of congress to a definite class of
voters of the state, consisting of those who were
eligible to vote for members of the most: numerous
branch of the state legislature, Further than this, no
power was given by the constitution, before the adop
tion of the fifteenth amendment, to secure the right
of suffrage to any one. The fifteenth amendment
does not in direct terms confer the right of suffrage
upon any one. Tt secures to the colored man the same
right to vote as that possessed by the white man, by
prohibiting any discrimination against hira on account
of race, color, or previous condition of servitude.
Subject to that limitation, the states still possess un-
controllable authority to regulate the right of suff rage
according to their own views of expediency.
. * *
“As we have said, this section is bottomed solely
on the fifteenth amendment. It cannot be successfully
contended that the amendment confers authority to
impose penalties for every conceivable wrongful dep-
rivation of the colored man's right to vote, It is only
When the wrongful deprivation is on account of TACe,
color, or previous condition of servitude that congress
may interfere and provide for its punishment. If,
therefore, the section in question goes beyond that
limit, it is unauthorized by the amendment.”
In Karem vo United States, that Civeuit held
“The Fifteenth amendment is therefore a limita-
fion upon the powers of the states in the execution
of their otherwise unlimited right to prescribe the
qualification of voters in their own elections, and the
power of Congress to enforce this limitation is neces-
Sk OYE FE asa (COA @th, Tansy
Sg hayaeaeesaney a
TEE ace Ra RHEE TIRE BR Tie leg eae re :
22
sarily limited to legislation appropriate to the correc-
tion of any discrimination on account of race, color,
or condition. The affirmative right to vote in such elec-
tions is still dependent upon and secured by the Con-
stitution and laws of the state, the power of the state
to prescribe qualification being limited in only one
particular. The right of the voter not to be discrimi-
nated against at such elections on account of race or
color is the only right protected by this amendment,
and that right is a very different right from the af-
firmative right to vote.”
In Oregon-Wisconsin Timber Holding Co. v. Coos
County,” the Supreme Court of Oregon ruled:
“Safely it may be said that the right of suffrage
is not an absolute unqualified personal right, but a
franchise dependent upon law. None of the law
writers include the right to vote among the rights
of property or of person. The only restriction on the
power of the states to regulate the qualifications of
electors is to be found in the fifteenth amendment
to the federal Constitution, which provides that the
right of citizens of the United States to vote is not to
be denied or abridged by the United States, or by any
state, on account of race, color, or previous condition
of servitude. Subject to this constitutional restriction,
the states have exclusive power to regulate the right
of suffrage and to determine the class of inhabitants
who may vote.”
In proposing this legislation and ‘urging its constitu-
tionality to Congress, the Attorney General failed to rec-
ognize that the right to vote in State elections is a right
to vote which is subject to every condition that a State
chooses to impose except those prohibited by the Consti-
29. (1914) 71 Ore. 462, 142 P. 575, 576.
Bas Samia SRSA CRS ENE C %
ee
23
tution. The error of his position is demonstrated in the
following quotation:
“. . . we seek to abolish these (literacy) tests because
they have been used in those places as a device to
discriminate against Negroes.
“It is not this bill—it is not the Federal Government—
which undertakes to eliminate illiteracy as a require-
ment 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... . It might be suggested that
this kind of discrimination could be ended in a differ-
ent 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 problem .. . (1)
Negroes have been denied educational opportunity ...
(2) 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 gov-
ernment. It is to solicit the consent of all the gov-
erned. It is to increase the number of citizens who
can vote. Surely we cannot even purport to act on
that concern if, in so doing, we reduce the ballot and
correspondingly diminish democracy.”?°
Neither the Attorney General or the Congress, nor the
Attorney General and the Congress, have the constitutional
30. House Hearings, pp. 16 and 17; Senate Hearings, pp.
22 and 23. The remarks of the Attorney General in appearances
before Congress are Particularly significant in as much as he
and his aides were the principal draftsmen and proponents of
this legislation.
BAG PAR EEF DEFRA OT LIES IN ETE LE MG RE ln
ie ROLLE EL LAE ELLIE LE EILEEN CLE TNE
24
prerogative of enlarging representative government, nor
is theirs separately or collectively the prerogative of in-
creasing democracy. The 15th Amendment power of Con-
gress is solely the power to enact appropriate legislation
to enforce a prohibition against racial discrimination in
voting. It is not a source of power to take over state elec-
toral functions nor is it an authorization to create addi-
tional voters, black or white, or both. The Attorney Gen-
eral is certainly not entitled to erect his prejudices into
principles.
In surveying the boundaries and limits of the power
granted to Congress to enforce the 15th Amendment's self-
executing veto of any state law or action which abridges
or denies the right to vote on account of race or color, this
Court should not give the slightest weight to the Attor-
“ney General’s wish for more universal suffrage, rather,
the judicial assay must be conducted with scrupulous re-
gard for the constitutional necessity fo: enforcement of
every nondiscriminatory qualification for voting set by
each of the 50 States of the Urivn.
Cc.
There Is No Repugnance or Conflict Between the
Power of State to Fix a Literacy Requirement for
Electors and the Prohibition of the 15th Amendment.
From time to time during its history this Court has
been called on to review legislation with an eye to deter-
mining whether or not Congress has exceeded the enumer-
ated powers vested in it by the Constitution and thereby
wrongly invaded powers belonging to the States; and in
more than a few cases the Court has found that congres-
sional action has transgressed on the Constitution and on
25
State sovereignty.** Thus, the mere fact that Congress de-
cided to enact the Voting Rights Act cannot be treated
as conclusive evidence that Congress possesses such power.
Otherwise, serious discussion of constitutional limitations
must cease.*”
In Sinnot v. Davenport,** the power of Congress to regu-
late interstate commerce had been exercised through the
medium of a statute requiring the enrollment and license
of vessels engaged in the coasting trade at their home
ports. The State of Alabama, some fifty years later, passed
an act providing for the registration of the names of steam-
boat owners in Alabama and, acting under its law, detained
the New Orleans based steamboat, Bagaby. The validity
of the state statute was brought to this Court’s attention
on a writ of error to the Alabama Supreme Court. This
31. See,eg.:
Collector v. Day, 78 USS. (11 Wall.) 113, 20 L.Ed. 122;
U. S. v. Baltimore & Ohio R. R. Co., 84 U.S. (17 Wall.)
322, 21 L.Ed. 597;
United States v. Reese et al., supra; footnote 16, p. 13;
United States v. Harris, 106 U:S. 629, 1 S.Ct. 601, 27 L.
Ed. 290;
Civil Rights Cases, 109 US. 3, 3 S.Ct. 18, 27 L.Ed. 835;
nS Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed.
Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65;
Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, £5 L.Ed. 853;
“oe v. U. S., 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed.
Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449,
66 L.Ed. 817, 21 A.L.R. 1432;
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S.Ct.
443, 76 L.Ed. 815; and
Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U.S.
315, 56 S.Ct. 235, 80 L.Ed. 251, 100 A.L.R. 1403.
(The Reese, James and Newberry cases were related to con-
gresssional restrictions on voting action.)
32. Newberry v. U. S., Footnote 31, supra, p. 25.
33. 63 U.S. (22 How.) 227, 16 L.Ed. 243.
ne
SER SGT RE RR IO FE ie PPS, a ERA EE ROR ERO EL SE oO
26
Court found that the Alabama statute was in direct conflict
with the exercise of the congressional power, and pointed
out that the supremacy clause operated in case of such
conflicts to make the congressional enactment paramount,
This decision sets forth the correct approach to resolving
such questions as that raised in this action, saying:
“We agree, that in the application of this principle
of supremacy of an act of Congress in a case where
the state law is but an exercise of a reserved power,
the repugnance or conflict should be direct and posi-
tive, so that the two acts could not be reconciled or
consistently stand together; and also that the act of
Congress should have been passed in the exercise of
a clear power under the Constitution, such as that in
question. * * *
“The power of Congress, however, over the subject
does not extend further than the regulation of com-
merce with foreign nations and among the several
states. Beyond these limits the states have not sur-
rendered their power over the subject, and they exer:
cise it independently of any control or interference of
the general government; . . =
We submit there is no conflict or repugnance between
the power of a state to prescribe a literacy qualification
and the prohibition of the 15th Amendment. This Court
has uniformly said there is not. In affirming the right of
the State of Oklahoma to use a literacy test for voter
qualification, the Court pointed out:
“In fact, the very command of the (15th) Amendment
recognizes the possession of the general power (over
suffrage qualifications) by the state, since the amend:
ment seeks to regulate its exercise as to the particular
84. Cf. Florida Lime and Avocado Growers V. Paul, 878 US
182, 929, AY S.Ct. 1210, 10 1. Ed. 2d 248; and Parker v. Brown, suv,
U.S. 841, 63 S.Ct, 807, 87 L.Ed, 3158 which reconciled State statutes
alleged to conflict with congressional powers
27
subject with which it deals... . Thus the authority
over suffrage which the states possess and the limita-
tion which the amendment imposes are coordinate
and one may not destroy the other without bringing
about the destruction of both?
Similarly, in the case at bar there is no direct or posi-
tive repugnance or conflict between the power of the State
of South Carolina to prescribe a fair and reasonable liter-
acy qualification as a prerequisite to voting and the com-
mand of the th Amendment prohibiting racial dis-
crimination, Since the two powers possessed by the respec-
tive sovereigns are without repugnance or conflict, conflict
could never be created by what is, truly, appropriate legis-
lation in pursuance of congressional powers. Legislation
which would create a conflict where none exists is neither
appropriate nor constitutional.
Even a brief study of the background and legislative
history of this act shows that literacy requirements of the
type adopted and enforced by South Carolina weren't in-
tended to be covered by the Act. A canvass of the voter
qualifications selected for destruction by this Act. in the
words of Congress:
“.. reveals that they are vague, arbitrary, hy pertech-
nical or unnecessarily difficult, and have little (if any)
bearing upon the capacity to cast an intelligent
ballot."
Plain, reasonable requirements that applicants possess
the simplest of ability to read and write were really not
35. Guinn vo UL S283 US. 847, 362, 35 S.Ct. 926, 59 L.Ed
1840.) This issue was most recently laid to rest in Lassiter vy.
Northampton County Roard of Elections, 360 US 45, 79 Sct
985, 3 L.Ed td 1072.
36. Cf Huron Portland Cement Ce. vy. Detroit, 8362 US 440,
80 S.Ct. 818, 4 L. Bd.2d 852, 78 ALL. Rod 1294.
ST. House Report, p. 18.) The Attorney General used almost
the same language in describing the tests which the Act intended
tocover, See House Hearings, po
i
DIRIGO ONE pL IO SOON NOIR SIE I TREE : inimical J
28
within the contemplated sphere of action, yet the Act in-
vades State sovereignty of South Carolina to proscribe just
such a requirement.
The qualifications now required in Mississippi,” (a state
which was one of the prime targets for this bill) and those
now required in South Carolina,” (a State which just got
“caught”), show on their face that they are simple, ob-
jective and encompass no more than the bare mechanical
ability to mark a knowing ballot and comprehend printed
notices of elections and voting instructions. Such qualifica-
tions are completely compatible with the Constitution and
with a fundamentally sound republican government.
There is yet another basis for demonstrating a com-
plete lack of repugnance or conflict. In adopting the Vot-
ing Rights Act, Congress was not exercising its power to
“regulate” an area of conduct or commerce entrusted to
its care full-sway. The 15th Amendment only vests in Con-
gress authority to enforce a limited and definite prohibi-
tion—a prohibition which this Court has held to be self-
executing. Since the Ist Section of the amendment oper-
ates to ipso facto write out all racially discriminatory terms
and provisions of state voting laws, the appropriate subject
of congressional enforcement power vested under the 2nd
Section must, of necessity, relate to misadministration.
Thus the appropriate legislation which Congress is em-
powered to enact should only be directed to correction
of misapplication and should not attempt to create, through
suspensions of some requirements, a new set of standards
which are in conflict with and repugnant to the particular
combination of qualifications adopted by the sovereign
States.
-
38. See Appendix A.
39. See Exhibit B to the Complaint and Appendix A to
South Carolina’s brief.
SSM IG RENEE NAR SGM -
29
The Attorney General candidly admitted that misad-
ministration was truly the basis for the Act.”
The demonstration of unconstitutionality of the Con-
gressional Act here in question under this principle be-
comes even clearer when it is recalled that the asserted
ground of conflict between state action and federal power
as to South Carolina must have been based upon the as-
sumptions of Congress as to misapplication by registrars
in a portion of the counties of other States of the statutes
of those other states since no widespread misuse of her
laws has ever been suggested and no misuse has been
proven in any court of law. There is no logic to a rule that
would deny the use of a law forbidding prostitution in
Houston, Texas, on a finding that officials in Galveston
had been guilty of widespread systematic flaunting of
that same law. If a law is valid, it ought to be enforced
in every part of the jurisdiction in which it is applicable.
If officers in one or many places are not correctly enforc-
ing the law or are guilty of outright violations of such a
statute, the errant officials ought to be corrected. Just
as burning a barn is no practical way to get rid of a rat, so
destroying a statute is no constitutional way to correct mis-
administration.*!
40. Attorney General Katzenbach: Yes, all literacy tests
are nondiscriminatory as they are written. The difficulty is in
their administration, Senator.
Senator Ervin: Nevertheless, this would wipe out the literacy
test even though the literacy test in words was absolutely non-
discriminatory, and was applied alike to people of all races,
wouldn’t it?
Attorney General Katzenbach: Yes, it would.
Senator Ervin: And it would do that on the basis of an
event which occurred before November 1964.
Attorney General Katzenbach: Yes, it would, Senator.
Senate Hearings, p. 59.
41. See Point ITI, infra, p. 32.
PORE, ty ASO RRP eH GERI IE? PINE MES AAI PRIA 5 SOMERS. 5
POY EE SURINS
30
With even stronger logic we would observe that mis-
creants in other States have no semblance of authority to
negate South Carolina’s laws and Congress can invest them
with none. When Congress casts so large a net that it
creates a conflict between State and Federal functions as
unnecessarily as was done in the instance of this Act, it
clearly leaves every modicum of Constitutional authority
behind.
D.
A “Suspension” of the Paramount Power of the States
to Fix Reasonable and Non-Discriminatory Voter
Qualifications and to Make Reasonable Changes in
Such Qualifications Must Be Based upon Authority to
Destroy That Power.
There is no such thing as suspended sovereignty.
Any valid claim of authority on the part of Congress
to “suspend” state voter qualifications which do not in
fact transcend constitutional prohibitions, or any claim of
authority to prohibit a state from making reasonable
changes in its qualifications without Federal approval,
would have to find a basis in a constitutional grant of
power broad enough to authorize the total destruction of
such state laws. Such authority does not exist in the Con-
stitution.
|
Legislative power to enforce the prohibition of the
15th Amendment is not analogous to the power to regulate
interstate commerce. In the latter instance, the power is
complete and plenary as to the entirety of the topic. Let
the subject matter be in fact interstate commerce, and
Congress is then empowered to take action which occupies
all or any part of the “field.” Its occupancy can suspend
existing state enactments or negate them entirely. It can
ira
31
proscribe present or future state legislation which is or
may be in conflict therewith. For example, in Parker vy.
Brown,” the Court commented:
“Occupation of a legislative ‘field’ by Congress in the
exercise of a granted power is a familiar example of
its constitutional power to Suspend state laws.”
On the other hand, when the grant of power is partial or
limited and the remainder of the power in the “field” is
vested in State sovereignty then Congress must confine
itself to action within the ambit of the part of the power
granted or its acts are unconstitutional. It is elementary
that the grant of authority to establish post offices and post
roads does not include power to establish a grocery store.
Similarly, the power to enforce a limitation on state
sovereignty which forbids that sovereignty to abridge or
deny the right to vote on account of race, cannot rea-
sonably be thought to include the power to withdraw
from some of the states, through the process of so-called
“suspension,” their unquestioned right to require their
electors to possess bare minimum literacy.
The fact that Congress has chosen to use the ingenious
approach of “suspending” rather than frank, direct de-
struction makes the act nonetheless unconstitutional.*"
Obviously this Court would not permit a criminal prose-
cution to be conducted in violation of the 5th and 6th
Amendments just because the convict was punished by a
“suspended” sentence. The power to suspend must in-
clude the power to destroy, for if suspension can be
42. 317 U.S. 341, 350, 63 S.Ct. 307, 87 L.Ed. 315.
43 An unconstitutional act cannot be made valid by a change
of descriptive words. Railway Express Agency v. Virginia, 358
U.S. 434, 79 S.Ct. 411, 3 L.Ed.2d 450. The Attorney General, in
Proposing this legislation, used the words “suspend” and “abolish”
interchangeably. Senate Hearinas, Part 1, p. 162.
UF SIEM OA teh EIST NSE RRR NE IARI ESS IO ey
32
ordered once it can be ordered twice or a hundred times
for a day, a week, a year or a hundred years. These are
only matters of degree. Congress is granted neither the
power to suspend nor the power to destroy as respects the
adoption and use of reasonable, non-discriminatory voter
qualifications in the several states of the Union.
III.
Neither Misapplication by an Executive Officer nor
Improper Motive or Purpose on the Part cf a Legis-
lator Can Operate to Negate a Statute Which Is in Fact
Constitutionally Valid.
Those proponents of the Voting Rights Act of 1965
who were willing to admit that the states all possess the
right and power to establish a reasonable literacy qualifi-
cation for voting, sought to justify the bill on the basis that
selected states should be denied their power because they
said administrative officials in some of those states had
put such tests to discriminatory uses in the past.
Such a contention is completely illogical. Article I,
Section 9, Clause 3, prohibits the enactment by Congress of
any Bill of Attainder or ex post facto law, yet on more than
one occasion the persons occupying the office of Congress-
men and Senators and the President of the United States
have been found guilty of violating this proscription. T+
would be ridiculous to assert that the erronee:s actions
of these officials detracted from the powers which the Con-
stitution granted to the Congress or the President.
The fact that prohibition was honored more widely in
its breach than in observance was never claimed to write
44. See, e.g., Ex parte Garland, 71 U.S. (4 Wall.) 333, 18
L.Ed. 366; U. S. v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed.
1252; and U. S. v. Brown, infra, p. 52. See also Footnote 31,
supra, p. 25, as to violations by Congress of other constitutional
limits.
the 18th Amendment, or the Statutes enacted pursuant to
it, off the books. In fact, on the completely contrary pre-
sumption, Congress Proposed and the States ratified the
21st Amendment to formally bring that era to a Cause.
33
Did the long years of discrimination in freight rates
against the South in clear violation of Article 1, Section 9,
erate to curtail the power of Congress over other phases
of commerce? Of course not. One bad administrator or
There are also vast differences between the “freezing”
p:inciple which some courts of equity have applied to cor-
(1) In the Court cases the State or subdivision had
been given its day in court to meet the case alleged
against it.
(2) The courts Maintain continuing jurisdiction of
such causes to permit the subdivision to, at any
time, show that it has ordered a re-registration of
voters on an even basis in accordance with the
State’s own Statutes.
34
(3) No court ever suspended the requirements that
a voter possess bare minimum literacy of the type
and to the degree required by South Carolina,
which is ne more than such literacy as is mechan-
ically required to cast a knowing vote."
(4) The courts never deprived the subdivision of sim-
ple means of keeping down corrupt practices pur-
suant to the provisions of its own laws.
(5) The court decrees sought to produce compliance
with State standards and not destruction of a por-
tion of those standards, They were designed to
secure equal enforcement of standards set by the
State, not to nullify those standards by stuffing
the voter rolls “to increase democracy” or for any
other high sounding reason.
In Giles v. Harris,“* this Court ruled that it would not
permit the actions of an administrative officer to make a
void and unconstitutional statute valid, saying:
“If the sections of the (State) Constitution concerning
registration were illegal in their inception, it would be
a new doctrine in constitutional law that the original
invalidity could be cured by an administration which
defeated their intent.”
The converse of this situation has also been approved by
this Court in Duke Power Co, v. Greenwood County.’ The
Fourth Circuit, speaking through Judge Parker, emphasized
45. It is also worthy of note that the relief sought by the
Miaintiff in UL S. ¥. Mississippi, 380 U.S, 128, 85 S.Ct. 88, 18
L.Ed.2a 717, would have required the Negro applicant to possess
the ability to read, Voter testing which requires possession of
a 6th grade education level was recommended by the Civil Rights
Commission and was maintained in the Federal law, by the Voting
Rights Act of 1965 (See Section 1S and 42 USCA 1971)
46. 189 U.S, 475, 487, 23 S.Ct. 639, 47 L.Ed. 909.
47. O1 Fe GOS, 672, Aff, 802 US. 485, 58 S.Ct. 306, 83 L.Ed,
35
that a valid statute could not be voided by an improper ad-
ministration. Its reasoning was:
“Confusion in thinking results from the method
employed by plaintiff of arguing that the statute is un-
constitutional ‘as applied by the Public Works. Admin-
istrator’ in making the loan and grant here under con-
sideration. This involves, of course, two questions:
(1) The validity of the act of Congress when tested by
the Constitution; and (2) the authority of the Admin-
istrator when tested by the act of Congress. A statute
may not be held void because of the action of an execu-
tive officer in applying its provisions. Even when there
is an abuse of executive power against which the courts
cannot relieve because of their inability to control ad-
ministrative discretion, the act of Congress under
which the action is taken is not rendered invalid any
more than it is by action which is absolutely unauthor-
ized. The constitutional validity of the statute must be
considered, therefore, without reference to what the
Administrator is doing under it.”
This Court's affirmance expressly approved this reasoning.
As a direct corollary to this line of authority holding
that ministerial or executive officers can neither make a
bad statute good nor a good statute bad, this Court has
committed itself to the rule that if the Congress or a State
Legislature possesses the constitutional power to enact a
statute and it exercises that constitutional power to achieve
& permitted end, the fact that speculation can be raised as
to other motives for the legislation, which could place the
Act beyond legislative power, cannot result in making the
Act invalid. In Ellis v. U.S. the opinion stated:
“Congress, as incident to its power to authorize and
enforce contracts for public works, may require that
they shall be carried out only in a way consistent with
48. 206 US. 246, 256, 27 SCt 600, 51 L.Ed. 1047, 11 Ann.
Cas 589
RAEN Seen EYE OER RAIS i BT IO PT OARS LDS
36
its views of public policy, and may punish a departure
from that way. It is true that it has not the general
power of legislation possessed by the legislatures of
the states, and it may be true that the object of the
law is of a kind not subject to its general control.
But the power that it has over the mode in which con-
tracts with the United States shall be performed can-
not be limited by a speculation as to motives. If the
motive be conceded. however, the fact that Con-
gress has not general control over the conditions of
labor does not make unconstitutional a law otherwise
valid, because the purpose of the law is to secure to it
certain advantages, so far as the law goes.”
In Stephenson v. Binford,® the Court, speaking of
State legislation, said:
“We need not consider whether the act in some
other aspect would be good or bad. It is enough to sup-
port its validity that, plainly, one of its aims is to con-
serve the highways. If the Legislature had other or
additional purposes, which, considered apart, it had no
constitutional power to make effective, that would not
have the result of making the act invalid.”
The true rule of statutory assessment is to be found
in such cases as McGowan v. Maryland,” Rast v. Van Deman
& Lewis Co.,"! and Lindsley v. Natural Carbonic Gas Co*
where this Court has held that if any state of facts reasona-
bly can be conceived that would sustain a statute, it must
be upheld. Statutes come to every court clothed with a
presumption of constitutionality and correctness and the
strong burden is placed on the attacker to demonstrate that
the statute does not rest on any reasonable basis but is
49. 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288, 87 A.L.R. 721.
50. 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393.
51. 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679.
52. 220 US. 61, 31 S.Ct. 337, 55 L.Ed. 369.
37
essentially arbitrary. This very rule will doubtless be
urged in support of the Voting Rights Act, and rightly so.
But if statutes are entitled to this status in the courts, they
are none the less entitled to that status in the Congress. If
they in fact can be shown to rest on a reasonable basis no
congressional conjecture as to bad legislative motive can
topple them and no administrator can be held to have sub-
verted them by wrongful application.
Indeed, if litigants were allowed to delve below the
surface of legislation to reconstruct supposed, submerged
motives and intent, a number of aspersions might be cast
on the Voting Rights Act of 1965, as witness the sentiment
of the remarks of Daniel H. Chamberlain, a northern Re-
publican who served as Reconstruction Governor of a South-
ern State. Writing in the Atlantic Monthly** concerning
the adoption of the post Civil War Reconstruction Acts,
he said:
“Hardly anywhere else in recorded debates can be
found so surprising a revelation of the blindness of
partisan zeal as these discussions disclose. But it may
now be clear to all, as it was then clear to some, that
underneath all the avowed motives and all the open
arguments lay a deeper cause than all others—the will
and determination to secure party ascendancy and con-
trol in the South and the nation through the Negro
vote. If this be a hard saying, let anyone now ask him-
self or ask the public, if it is possibly credible that the
Reconstruction Acts would have been passed if the
Negro vote had been believed to be Democratic?”
Only the last word need be changed for purposes of
present day speculation. Just why Texas “happened” to be
left out and States voting for Goldwater “happened” to be
“caught” would also furnish interesting grist for such a
mill.
53 April issue, 1901, p. 473.
38
When the Voting Rights Act undertakes to translate its
judgment of misadministration into power to nullify the
law being administered, it attempts to do that which the
courts have ruled cannot be done.
Cases Distinguished
An amicus does not customarily have an opportunity
to respond to briefs filed by the parties. We would, there-
fore, beg leave to now distinguish several decisions of this
court which have been urged as detracting from the estab-
lished rule of statutory construction stated above. The first,
and probably the most misconstrued precedent in the field
of constitutional law, is Mr. Justice Matthews’ decision in
Yick Wo v. Hopkins." In this habeas corpus action a Chinese
laundryman sought freedom from imprisonment under the
provisions of ordinances of the City of San Francisco relat-
ing to laundries. The Court’s description of these ordi-
nances was:
“They (the ordinances) seem intended to confer,
and actually do confer, not a discretion to be exercised
upon a consideration of the circumstances of each case,
but a naked and arbitrary power to give or withold
consent, not only as to places, but as to persons; so that,
if an applicant for such consent, being in every way a
competent and qualified person, and having complied
with every reasonable condition demanded by any pub-
lic interest, should, failing to obtain the requisite con-
sent of the supervisors to the prosecution of his busi-
ness, apply for redress by the judicial process of man-
damus to require the supervisors to consider and act
upon his case, it would be a sufficient answer for them
to say that the law had conferred upon them authority
to withhold their assent, without reason and without
responsibility. The power given to them is not confided
to their discretion in the legal sense of that term, but
54. 118 US. 356,6 S.Ct. 1064, 30 L.Ed. 220.
39
is granted to their mere will. It is purely arbitrary, and
acknowledges neither guidance nor restraint.”
The Court then proceeded to examine the record con-
cerning the application of this unreasonable statute which
conferred naked and arbitrary power, and found the record
to disclose that more than 200 Chinese had been denied
the opportunity to operate laundries, while that same right
had been granted to 80 other persons—none of whom were
Chinese subjects but all of whom were similarly situated.
The Court reasoned that equal protection of law not only
forbade discriminatory legislation but also nullified dis-
criminatory administration of a valid law. The words of
the Court expressing this second and separate principle
were:
“Though the law itself be fair on its face, and im-
partial in appliance, yet, if it is applied and administered
by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal dis-
criminations between persons in similar circumstances,
material to their rights, the denial of equal justice is
still within the prohibition of the constitution. This
principle of interpretation has been sanctioned by this
court in Henderson v. Mayor of New York, 92 USS.
259; Chy Luny v. Freeman, 92 U.S. 275; Ex parte Vir-
ginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370; and
Soon Hing v. Crowley, 113 U.S. 703, S. C., 5 Sup. Ct. Rep.
730.”
As stated, this was a habeas corpus proceeding; so, if Yick
Wo’s imprisonment was caused by an arbitrary, void stat-
ute, he was entitled to be released; and in the alternative,
it was equally true that if his imprisonment was caused by
misadministration of a fair law, he ought to be free. The
Court concluded that both the statute and the administra-
tion of the statute had wrongfully caused Yick Wo’s im-
prisonment, stating:
a
EE PERE OR RY AAR EIEN NG eo RR RON
40
“The fact of this discrimination is admitted. No
reason for it is shown, and the conclusion cannot be
resisted that no reason for it exists except hostility to
the race and nationality to which the petitioners be-
long, and which, in the eye of the law, is not justified.
The discrimination is therefore illegal, and the public
administration which enforces it is a denial of the equal
protection of the laws, and a violation of the fourteenth
amendment of the constitution. The imprisonment of
the petitioners is therefore iliegal, and they must be
discharged.”
Not a single intimation or inference can be properly drawn
from any part of the Court's decision in the Yick Wo case
as support for the principle that misadministration of a fair,
reasonable law—one which would pass the mandamus test
proposed in that opinion—could be negated by the whim, or
desire, or misdeeds of administrative officials.
In Lane v. Wilson," the Court considered the validity
of an Oklahoma statute which was designed to correct the
unconstitutional discrimination condemned in Guinn V.
U. S.* The new statute was condemned on its face as
arbitrarily and unreasonably confined. Its discriminatory
result was “inevitable”. The pertinent portion of the
Court's opinion reads:
“The practical effect of the 1916 legislation was to
accord to the members of the negro race who had been
discriminated against in the outlawed registration sys-
tem of 1914, not more than 12 days within which to
reassert constitutional rights which this Court found
in the Guinn Case to have been improperly taken from
them. We believe that the opportunity thus given
negro voters to free themselves from the effects of dis-
crimination to which they should never have been sub-
jected was too cabined and confined. The restrictions
55. 307 US. 268, 59 S.Ct. 872, 83 L.Ed. 1281
56. Footnote 35, supra, p. 27.
41
imposed must be judged with reference to those for
whom they were designed. It must be remembered
that we are dealing with a body of citizens lacking the
habits and traditions of political independence and
otherwise living in circumstances which do not encour-
age initiative and enterprise. To be sure, in excep-
*[277]
tional cases a supplemental *period was available. But
the narrow basis of the supplemental registration, the
very brief normal period of relief for the persons and
purposes in question, the practical difficulties, of which
the record in this case gives glimpses, inevitable in the
administration of such strict registration provisions,
leave no escape from the conclusion that the means
chosen as substitutes for the invalidated ‘grandfather
clause’ were themselves invalid under the Fifteenth
Amendment. They operated unfairly against the very
class on whose behalf the protection of the Constitu-
tion was (t)here successfully invoked.”
It would distort this Court’s opinion to contend that a rea-
sonably drawn statute, which did not have the inevitable
effect of discrimination, could be voided by an administra-
tion which disregarded its terms. For example, if the stat-
ute had provided a 12-year period instead of a 12-day
period for the supplemental registration procedures and
the Court had found that 12 years was a reasonable period,
then one or more state officials had refused to apply the
law to Negro voters from and after the 12th day, any such
acts of misapplication of the law would be grounds for court
relief; but they could not condemn a proper, valid statute.
Davis v. Schnell sought a judgment declaring that the
Boswell amendment to the Alabama Constitution was ar-
ditrary and void. The District Court found that it was,
stating, in pertinent part:
57. 81 F.Supp. 872, Aff. 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed.
1093.
42
“The language does not call for a simple, fair or
: reasonable understanding or explanation. It does not
: say that the understanding and explanation must be
partial, full, complete, definite, proper, fair, reasonable,
plain, precise, correct, accurate, or give any rule, guide
or test as to the nature of the understanding or ex-
planation that is required. The Amendment does not
say to whose satisfaction the applicant must ‘under-
stand and explain,’ but under the statutes," it must be
to the reasonable satisfaction of a majority of the mem-
bers of one of the 67 boards of registrars that are
provided for the 67 counties of Alabama. * * *
“To state it plainly, the sole test is: Has the ap-
plicant by oral examination or otherwise understood
and explained the Constitution to the satisfaction of
the particular board? To state it more plainly, the
board has a right to reject one applicant and accept
another, depending solely upon whether it likes or dis-
likes the understanding and explanation offered. To
state it even more plainly, the board, by the use of the
words ‘understand and explain,’ is given the arbitrary
power to accept or reject any prospective elector that
may apply, or, to use the language of Yick Wo v. Hop-
kins, 118 U.S. 356, 366, 6 S. Ct. 1064, 1069, 30 L. Ed.
220, these words ‘actually do confer, not a discretion to
be exercised upon a consideration of the circumstances
of each case, but a naked and arbitrary power to give
or withhold consent * * *’ The board has the power
to establish two classes, those to whom they consent
and those to whom they do not—those who may vote
and those who may not. Such arbitrary power amounts
to a denial of equal protection of the law within the
meaning of the Fourteenth Amendment to the Con-
stitution, and is condemned by the Yick Wo and many
other decisions of the Supreme Court.”
Such a statute could not pass the mandamus test set
out in Yick Wo.™
58. Footnote 54, supra, p. 38.
43
The Court further found that the administration of this
arbitrary amendment had unconstitutionally excluded
Negro applicants for the franchise, while white applicants
with comparable qualifications were being accepted. The
District Court concluded that both the amendment and
its administration were unconstitutional. In affirming, this
Court cited both Yick Wo and Lane but called for a com-
parison of these cases with Williams v. Mississippi,” which
distinguished Yick Wo. The former Mississippi election
statutes discussed in Williams were held not to be dis-
criminatory on their face. A showing that evil actions were
possible under these statutes was rejected as not sufficient
to overturn them. Williams’ attorney claimed Williams
had been convicted by a jury from which Negroes had
been excluded by virtue of a law requiring all jurors to be
qualified electors. Thus, the Court correctly pointed out
that Williams would have been wrongfully convicted if he
had shown that a valid election law had been misapplied in
his county, just as his conviction would be erroneous if the
laws had been void on their face. The Court certainly did
not purport to rule that misadministration could void stat-
utes which were, in fact, valid.
In Gomillion v. Lightfoot,” the Court condemned a stat-
ute gerrymandering the rectangular boundaries of an Ala-
bama city into “a strangely irregular 28-sided figure”. The
lower courts sustained a motion to dismiss.“' On appeal,
this Court reversed, stating:
If these allegations upon a trial remained uncon-
tradicted or unqualified, the conclusion would be irre-
sistible, tantamount for all practical purposes to a math-
59. 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012.
60. 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.
61. 167 F.Supp. 405, 270 F.2d 594.
44
ematical demonstration, that the legislation is solely
concerned with segregating white and colored voters by
fencing Negro citizens out of town so as to deprive
them of their pre-existing municipal vote.
“It is difficult to appreciate what stands in the
way of adjudging a statute having this inevitable effect
invalid in light of the principles by which this Court
must judge, and uniformly has judged, statutes that,
howsoever speciously defined, obviously discriminate
against colored citizens.”
“While in form this is merely an act redefining metes
and bounds, if the allegations are established, the in-
escapable human effect of this essay in geometry and
geography is to despoil colored citizens, and only
colored citizens, of their theretofore enjoyed voting
rights.”
With deference, we emphasize that the Court in this
case was not dealing with a statute which was susceptible
of constitutional application. The allegations admitted by
the motion to dismiss alleged legislation which was solely
concerned with unconstitutional racial segregation. The
Court spoke in terms of a law which had the “inevitable”
and “inescapable human effect” of despoiling “only” Negro
voting rights. Neither good nor bad administration could
help or hurt it.
In Nashville, C. & St. L. Ry. Co. v. Browning,” the
Court held that the State of Tennessee had the power to
classify railroad property in a different “pigeonhole” from
other property for tax purposes. A large volume of evi-
dence had been offered in the courts below to show that
administration of the state’s tax statutes in such a manner
2s to over-tax railroads was the rule and not the exception.
The lower court found the proof offered insufficient to over-
62. 3210 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254.
come the presumption that reviewing officials had acted
properly to equalize the taxes. This Court stated that there
was not enough evidence in the record to reverse this find-
ing. The Court further observed that since the State had a
right to classify railroads differently from other property, a
railroad could not be heard to complain that classification
either by law or by practice had harmed them. By way
of obiter dicta, the Court made the following passing corm-
ment in disagreeing with a contention of the State agency
that since the statutes of Tennessee provided for fair taxa-
tion there could be no basis for a claim of denial of equal
protection of laws within the meaning of the 14th Amend-
ment.
45
“Here, according to petitioner’s own claim, all the
organs of the state are conforming to a practice, syste-
matic, unbroken for more than forty years, and now
questioned for the first time. It would be a narrow
conception of jurisprudence to confine the notion of
‘laws’ (within the 14th Amendment phrase ‘equal
protection of the laws’) to what is found written on
the statute books, and to disregard the gloss which
life has written upon it. Settled State practice can-
not supplant constitutional guarantees, but it can estab-
lish what is state law. The equal protection clause
did not write an empty formalism into the Consti-
tution. Deeply embedded traditional ways of carry-
ing out state policy, such as those of which petitioner
complains, are often tougher and true law than the
dead words of the written text.”
What the opinion was saying was that a denial of the 14th
Amendment’s guarantee of equal protection of laws could
not be shielded by the fact that the words of a statute
or “law” did not justify the misdeeds of an officer. If,
over 40 years, the assessors made it a uniform practice
to over-assess railroads, the practice was a denial of equal
protection, just as much as if the inequalitv were written
SOLAS Bae ENYA NTS MT Ee, PERM AR
iia
on the statute books of the state as a “law”. The issue
which this comment in the Nashville case was discussing
is not the question here. We hardily contend that Mr.
Justice Frankfurter was not attempting, by way of this
dicta, to commit this Court to the proposition that any
single officer or any number of officials acting over any
period of time could make a valid statute bad or an un-
© stitutional act good. There is a vast difference be-
tween ruling that misadministration can give rise to a
cause of action or deprive a person of “equal protection
of law” and ruling that it can rewrite a statute.
Certainly no one of these decisions logically supports
an assertion that misuse of valid statutes creates a power
in Congress to abolish or suspend the laws of a State. No
one of them holds that a statute which is valid on its
face can be judicially voided because of an invalid ad-
ministration or by indulging in subjective psychoanalysis
in the field of legislative intent. With the utmost as-
surance, we contend that a statute which cannot be over-
turned through the judicial process cannot be nullified by
legislative fiat.
IV.
The Voting Rights Act of 1965 Is a Bill of Attainder
A.
In Enacting the Voting Rights Act Congress Purported
to Exercise Purely Judicial Powers and to Vest
Legislative Powers in the Courts.
A frank study of the history of this legislation dis-
closes that Congress assumed to (1) conduct a trial-type in-
vestigation, (2) make findings, and (3) pass a fiat enforc-
63. Cf. United States v. Constantine, 296 U.S. 287, 299,
56 S.Ct. 223, 80 L.Ed. 233.
RETAIN TS TSAI I Nn eae HOS
47
ing liabilities in selected states on the basis of past facts.
As indicative of Congressional spirit, we would refer to
the remarks of Congressman McCullough to Attorney Gen-
eral Button of Virginia.‘
“You know, Mr. Attorney General, we sit here as
members of this committee in two capacities, or at
least, some of us do. Some of us sit here as advocates
of legislation which we think is necessary to end dis-
crimination in some States, in violation of the 15th
amendment.
“We also sit here in the nature of judges who are lis-
tening to the presentation of a case by the opponents
and by the proponents. One of our major duties, if not
our major duty, is not only to consider our Position as
advocates but to most seriously take our responsibili-
ties as judges.”
In performing its “advocate-judge” function, Congress
may have acted out of the noblest of motives. Its actions
were, nevertheless, absolutely unconstitutional. No mat-
ter how high its aims, nor how serious its Purposes or
how good its intents, they cannot substitute for consti-
tutional power."
It is perhaps incidental that mixed with its attempts
to adjudicate, Congress wound up improperly placing legis-
lative functions in the hands of the judiciary in this very
same legislation. In the course of the House Hearings,
Attorney Genera] Katzenbach assured Congressman Lind-
Say as follows:
64. House Hearings, p. 569.
65. Carter y. Carter Coal Co., 298 US. 238, 56 S.Ct. 855,
60 L.Ed. 1160. No man can be judge in his own case even where
he is authorized to exercise judicial power. In re Oliver, 333 U.S.
257, 68 S.Ct. 499, 92 L.Ed. 682.
66. P. 105.
ae eng re See eee He¥e
48
“I believe that in setting up the objectives we may
have caught possibly one State, possibly more, that
have not used them (literacy tests) for discrimina-
tory purposes. We may have caught a few coun-
ties that have not used them for discriminatory pur-
poses.
“I think in general we have caught those States and
counties which have discriminated and those which
have not had the opportunity to come in and show
that they have not done so.”
In the Senate Hearings" he exchanged the following
comment with Senator Ervin:
“Senator Ervin. Yes. But do you think that the
Constitution gives Congress the power to determine
by legislative enactment the guiit of a particular State
or particular subdivision of the State on the question
as to whether it violated the 15th amendment or the
19th amendment?
Attorney General Katzenbach. I think that Con-
gress can set down reasonable standards in that re-
spect, and then in addition it makes it possible for
a State to be out from under that by reasonable tests
in the courts as to whether, in fact, that is fair or not.”
Later™ the following remarks passed between Senator Er-
vin and the Attorney General:
“Senator Ervin. You are striking down the liter-
acy test application in the 34 North Carolina counties
in the absence of any evidence. You are striking them
down by congressional recital.
Attorney General Katzenbach. Striking them
down by congressional recital and offering each and
67. P. 83.
68. Senate Hearings.
49
every one of those counties the opportunity to show
that they have not discriminated.”
We respectfully submit that it is clear from these quo-
tations that the thrust of the bill was to cast an overly
large net of guilt in the hope that it would be validated
by a clause letting courts loose any “innocents” that were
“caught”. Just such a procedure was in these words con-
demned in U. S. v. Reese:™
“It would certainly be dangerous if the Legisla-
ture could set a net large enough to catch all possi-
ble offenders and leave it to the courts to step inside
and say who could be rightfully detained and who
should be set at large. This would, to some extent,
substitute the Judicial for the Legislative Department
of the Government. The courts enforce the legislative
will when ascertained, if within the constitutional grant
of power. Within its legitimate sphere, Congress is
supreme and beyond the control of the courts; but if
it steps outside of its constitutional limitation and at-
tempts that which is beyond its reach, the courts are
authorized to and when called upon in due course of
legal proceedings must, annul its encroachments upon
the reserved power of the States and the people.”
Even legislation which is within the express power of a
legislative body has been condemned when its sweep is
made unnecessarily and unreasonably broad.”
69. Footnote 16, supra, p. 13.
70. Cf. Aptheker et al. v. Secretary of State, 378 U.S. 500,
508, 84 S.Ct. 1659, 12 L.Ed.2a 992, and the cases there cited.
=
50
B.
Legislative Trials Are Abhorrent to the Constitutional
Principles of Separation of Powers and Due Process
In Kilbourn v. Thompson,” Mr. Justice Miller, speak-
ing for a unanimous court, stated:
“It is believed to be one of the chief merits of the
American system of written constitutional law, that
all the powers entrusted to governments, whether state
or national, are divided into the three grand depart-
ments of the executive, the legislative and the judicial.
That the functions appropriate to each of these branches
of government shall be vested in a separate body of
public servants, and that the perfection of the system
requires that the lines which separate and divide these
departments shall be broadly and clearly defined. It
is also essential to the successful working of this sys-
tem, that the persons entrusted with power in any one
of these branches shall not be permitted to encroach
upon the powers confided to the others, but that each
shall by the law of its creation be limited to the exer-
cise of the powers appropriate to its own department
and no other. To these general propositions there are
in the Constitution of the United States some important
exceptions. One of these is, that the President is so
far made a part of the legislative power, that his assent
is required to the enactment of all statutes and reso-
lutions of Congress.
This, however, is so only to a limited extent,
for a bill may become a law notwithstanding the re-
fusal of the President to approve it, by a vote of two
thirds of each House of the Legislature.
So, also, the Senate is made a partaker in the func-
tions of appointing officers and making treaties, which
are supposed to be properly executive, by requiring
its consent to the appointment of such officers and the
71. 103 U.S. (13 Otto) 168, 190, 26 L.Ed. 377.
—_~
51
ratification of treaties. The Senate also exercises the
judicial power of trying impeachments, and the House
of preferring articles of impeachment.
In the main, however, that instrument, the model
on which are constructed the fundamental laws of
the States, has blocked out with singular precision,
and in bold lines, in its three primary Articles, the
allotment of power to the executive, the legislative,
and judicial departments of the government. It e2lso
remains true, as a general rule, that the powers con-
fided by the Constitution to one of these departments
cannot be exercised by another.
It may be said that these are truisms which need
no repetition here to give them force. But while the
experience of almost a century has in general shown
a wise and commendable forbearance in each of these
branches from encroachments upon the others, it is not
to be denied that such attempts have been made, and
it is believed not always without success. The increase
in the number of States, in their population and wealth,
and in the amount of power, if not in its nature to be
exercised by the Federal Government, presents power-
ful and growing temptations to those to whom that
exercise is intrusted, to overstep the just boundaries
of their own department, and enter upon the domain
of one of the others, or to assume powers not intrusted
to either of them.”
In Hepburn v. Griswold,” Chief Justice Chase put the
point thus:
“No department of the government has any other
powers than those thus delegated to it by the people.
All the legislative power granted by the Constitution
belongs to Congress; but it has no legislative power
which is not thus granted. And the same observa-
tion is equally true in its application to the execu-
tive and judicial powers granted respectively to the
72. 75 U.S. (8 Wall.) 603, 611, 19 L.Ed. 513,
LPT OSE As BEGET” STS Se SRE * een
52
President and the courts. All these powers differ
in kind, but not in source or in limitation. They all
arise from the Constitution, and are limited by its
terms.
“Not every Act of Congress, then, is to be regarded
as the supreme law of the land; nor is it by every Act
of Congress that the judges are bound. This character
and this force belong only to such acts as are ‘made
in pursuance of the Constitution’.”’
To whatever extent congressional action in the form
of the Voting Rights Act of 1965 undertakes to exercise
a restraint upon and displacement of the judicial power
then, to precisely the same extent, that Act is unconsti-
tutional.
In its June 7, 1965, decision in U. S. v. Brown," this
Court struck down an enactment of Congress as an un-
constitutional Bill of Attainder. The Court began its dis-
cussion with a brief review of the history of that clause
in our Constitution. The relationship between the separa-
tion of the divisions of the national government and the
prohibition of attainders was sharply drawn in this lan-
guage:
“The Constitution divides the National Govern-
ment into three branches—Legislative, Executive and
Judicial. This ‘separation of powers’ was obviously
not instituted with the idea that it would promote gov-
ernmental efficiency. It was, on the contrary, looked
to as a bulwark against tyranny. For if governmental
power is fractionalized, if a given policy can be im-
plemented only by a combination of legislative enact-
73. US. , 85 S.Ct. 1707, 14 L.Ed.2d 484.
74. Another note of historical interest is to be found in the
appendix to the opinion of Mr. Justice Black in Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 146, 71 S.Ct. 624,
95 L.Ed. 817.
—
53
ment, judicial application, and executive implemen-
tation, no man or group of men will be able to impose
its unchecked will. James Madison wrote:
‘The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the
very definition of tyranny.’
The doctrine of separated powers is implemented by a
number of constitutional provisions, some of which
entrust certain jobs exclusively to certain branches,
while others say that a given task is not to be per-
formed by a given branch. For example, Article III’s
grant of ‘the judicial Power of the United States’
to federal courts has been interpreted both as a grant
of exclusive authority over certain areas. Marbury
v. Madison, 1 Cranch 137, 2 L. Ed. 60, and as a limita-
tion upon the judiciary, a declaration that certain tasks
are not to be performed by courts, e. g., Muskrat v.
United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.
Compare Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153.
The authors of the Federalist Papers took the posi-
tion that although under some systems of government
(most notably the one from which the United States
had just broken), the Executive Department is the
branch most likely to forget the bounds of its author-
ity, ‘in a representative republic * * * where the legis-
lative power is exercised by an assembly * * * which
is sufficiently numerous to feel all the passions which
actuate a multitude; yet not so numerous as to be in-
capable of pursuing the objects of its passions * * *.
barriers had to be erected to ensure that the legisla-
ture would not overstep the bounds of its authority
and perform the functions of the other departments.
The Bill of Attainder Clause was regarded as such a
barrier. Alexander Hamilton wrote:
POSES Winer user eaae RES OLIN. SORRY NSIS TET la ON pint oinienrnd
54
‘Nothing is more common than for a free people,
in times of heat and violence, to gratify momentary
passions, by letting into the government principles
and precedents which afterwards prove fatal to them-
selves. Of this kind is the doctrine of disqualifica-
tion, disfranchisement, and banishment by acts of
the legislature. The dangerous consequences of this
power are manifest. If the legislature can disfran-
chise any number of citizens at pleasure by genera!
descriptions, it may soon confine all the votes to a
small number of partisans, and establish an aristoc-
racy or oligarchy; if it may banish at discretion all
those whom particular circumstances render obnox-
jous, without hearing or trial, no man can be safe,
nor know when he may be the innocent victim of a
prevailing faction. The name of liberty applied to
such a government, would be a mockery of common
sense.’
Thus the Bill of Attainder Clause not only was in-
tended as one implementation of the general prin-
ciple of fractionalized power, but also reflected the
Framers’ belief that the Legislative Branch is not so
well suited as politically independent judges and juries
to the task of ruling upon the blameworthiness, of,
and levying appropriate punishment upon, specific per-
sons.
‘Every one must concede that a legislative body, from
its numbers and organization, and from the very
intimate dependence of its members upon the people,
which renders them liable to be peculiarly suscepti-
ble to popular clamor, is not properly constituted to
try with coolness, caution, and impartiality a crim-
inal charge, especially in those cases in which the
popular feeling is strongly excited,—the very class
of cases most likely to be prosecuted by this mode.”
By banning bills of attainder, the Framers of the Con-
stitution sought to guard against such dangers by
limiting legislatures to the task of rule-making. ‘It is
the peculiar province of the legislature, to prescribe
general rules for the government of society; the ap-
plication of those rules to individuals in society would
seem to be the duty of other departments.’ Fletcher
v. Peck, 6 Cranch 87, 136, 3 L. Ed. 162.
* * *
“Under our Constitution, Congress possesses full legis-
lative authority, but the task of adjudication must be
left to other tribunals.”
55
The Court’s observations in this recent decision con-
firm the precise principles enunciated by Hamilton in the
Federalist Papers. Some pertinent extracts from this rare
document are:
“The standard of good behaviour for the continu-
ance in office of the judicial magistracy, is certainly
one of the most valuable of the modern improvements
in the practice of government. Ina monarchy, it is an
excellent barrier to the despotism of the prince: in a
republic, it is a no less excellent barrier to the encroach-
ments and oppressions of the representative body. And
it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws. * * *
The complete independence of the courts of justice
is peculiarly essential in a limited constitution. By a
limited constitution, I understand one which contains
certain specified exceptions to the legislative authority;
such for instance, as that it shall pass no bills of at-
tainder, no ex post facto laws, and the like. Limitations
of this kind can be preserved in practice no other way
than through the medium of the courts of justice; whose
duty it must be to declare all acts contrary to the mani-
fest tenor of the constitution void. Without this, all the
reservations of particular rights or privileges would
amount to nothing.”
75.
Federalist, No. 78, Madison Ed., pp. 363, 364.
CERO TUS ae Ope ea yE TTY) pase rear aaes
56
The fact that Congress was dealing, in the Brown case,
with an area where it had a wide latitude of power, to-wit,
the commerce clause, did not deter the Court from con-
demning the legislation, stating:
“Under the line of cases just outlined, § 504 plainly
constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting
interstate commerce persons who may use such posi-
tions to bring about political strikes. In § 504, how-
ever, Congress has exceeded the authority granted it
by the Constitution. The statute does not set forth
a generally applicable rule decreeing that any person
who commits certain acts or possesses certain charac-
teristics (acts and characteristics which, in Congress’
view, make them likely to initiate political strikes)
shall not hold union office, and leave to courts and
juries the job of deciding what persons have committed
the specified acts or possess the specified characteris-
tics. Instead, it designates in no uncertain terms the
persons who possess the feared characteristics and
therefore cannot hold union office without incurring
criminal liability—-members of the Communist Party.”
In the present legislation though the words used do
not call states by name, certain states have been carefully
selected and designated in no uncertain terms.”* The Jack of
a precise appellation to the states brought under this act
does not cause it to be any the less a Bill of Attainder. The
comparable reasoning in Brown was expressed in these
words:
“The Attorney General urges us to distinguish Lovett”
on the ground that the statute struck down there
‘singled out three identified individuals.’ It is of course
true that § 504 does not contain the words ‘Archie
76. See Points C and D, infra, pp. 69 and 71.
77. United States v. Lovett, Footnote 44, supra, p. 32.
57
Brown’, and that it inflicts its deprivation upon more
than three people. However, the decisions of this Court,
as well as the historical background of the Bill of
Attainder Clause, make it crystal clear that these are
distinctions without a difference. It was not uncommon
for English acts of attainder to inflict their depriva-
tions upon relatively large groups of people, sometimes
by description rather than name. Moreover, the stat-
utes voided in Cummings and Garland were of this
nature. We cannot agree that the fact that § 504
inflicts its deprivation upon the membership of the
Communist Party rather than upon a list of named
individuals takes it out of the category of bills of at-
tainder.”
Under the rule of Brown the fact that in this case the dep-
rivations of power to be visited on the “guilty” states are
allegedly designed to be preventive rather than retributive,
does not keep the visitation of these sanctions from being
a form of punishment.
“The Solicitor General argues that § 504 is not a bill
of attainder because the prohibition it imposes does not
constitute ‘punishment’. In support of this conclusion,
he urges that the statute was enacted for preventive
rather than retributive reasons—that its aim is not
to punish Communists for what they have done in the
past, but rather to keep them from positions where they
will in the future be able to bring about undesirable
events. He relies on American Communications Ass’n
v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, which
upheld § 9(h) of the Taft-Hartley Act, the predecessor
of the statute presently before us. In Douds the Court
distinguished Cummings,”* Garland” and Lovett on the
ground that in those cases
78. Cummings v. State of Missouri, 71 US. (4 Wall.) 277,
18 L.Ed. 356.
79. Ex parte Garland, Footnote 44, supra, p. 32.
SERA. PN. (RIO ALN EDM DISTRESS SCRE RICE ORGIES
58
‘the individuals involved were in fact being pun-
ished for past actions; whereas in this case they are
subject to possible loss of position only because there
is substantial ground for the congressional judgment
that their beliefs and loyalties will be transformed
into future conduct.’ Id., at 413, 70 S.Ct. at 691.
“This case is not necessarily controlled by Douds. For
to prove its assertion that § 9(h) was preventive rather
than retributive in purpose, the Court in Douds focused
on the fact that members of the Communist Party could
escape from the class of persons specified by Congress
simply by resigning from the Party:
‘Here the intention is to forestall future dangerous
acts: there is no one who may not by a voluntary
alteration of the loyalties which impel him to action,
become eligible to sign the affidavit. We cannot con-
clude that this section is a bill of attainder.’ Id. at
414, 70 S.Ct. at 692.
“Section 504, unlike § 9(h), disqualifies from the
holding of union office not only present members of the
Communist Party, but also anyone who has within the
past five years been a member of the Party. However,
even if we make the assumption that the five-year pro-
vision was inserted not out of desire to visit retribution
but purely out of a belief that failure to include it
would lead to pro ferma resignations from the Party
which would not decre?se the threat of political strikes,
it still clearly appears chat § 504 inflicts ‘punishment’
within the meaning of the Bill of Attainder Clause. It
would be archaic to limit the definition of ‘punishment’
- to ‘retribution’. Punishment serves several purposes:
retributive, rehabilitative, deterrent and preventive.
One of the reasons society imprisons those convicted of
crimes is to keep them from inflicting future harm,
but that does not make imprisonment any the less
punishment.
“Historical considerations by no means compel restric-
ticn of the bill of attainder ban to instances of retribu-
59
tion. A number of English bills of attainder were en-
acted for preventive purposes—that is, the legislature
made a judgment, undoubtedly based largely on past
acts and associations (as § 504 is) that a given person or
group was likely to cause trouble (usually, overthrow
the government.) and therefore inflicted deprivations
upon that person or group in order to keep them from
bringing about the feared event. It is also clear that
many of the early American bills attainting the Tories
were passed in order to impede their effectively resist-
ing the Revolution.
‘In the progress of the conflict, and particularly in
its earliest periods, attainder and confiscation had
been resorted to generally, throughout the continent,
as a means of war. But it is a fact important to the
history of the revolting colonies, that the acts pre-
scribing penalties, usually offered to the persons
against whom they were directed the option of avoid-
ing them, by acknowledging their allegiance to the
existing governments.
‘It was a preventative, not a vindictive policy. In the
same humane spirit, as the contest approached its
close, and the necessity of these severities diminished,
many of the states passed laws offering pardons to
those who had been disenfranchised, and restoring
them to the enjoyment of their property * * *.’
“Thus Justice Iredell was on solid historical ground
when he observed, in Calder v. Bull, 3 Dall. 386, 399-
400, 1 L.Ed. 648, that ‘attainders. on the principle of
retaliation and proscription, have marked all the vicis-
situdes of party triumph.’
“We think that the Court in Douds misread United
States v. Lovett when it suggested, 339 U.S., at 413,
“0 S.Ct., at 691, that that case could be distinguished
on the ground that the sanction there imposed was
levied for purely retributive reasons.”
BE RRS eatery cepa te cincenan nang Tee IRENA RRRUIIR Pe TIE
60
The attainder effects of the present legislation can be
seen even more clearly in the provisions restricting states
singled out for inclusion in the act from going about their
normal legislative processes in the future. This prohibi-
tion is based entirely upon a false presumption of future
bad faith and unlawful conduct. This clause, with its ef-
fect of prospective punishment, is a part of an act wherein
Congress hasn’t set up a single legislative standard for
conduct subsequent to November, 1964, which is to have the
effect of bringing new states under the Act or releasing
those “caught” otherwise than by authorizing a judicial
proceeding in which such states are denied the presump-
tion of innocence and are inflicted with a practically im-
possible burden of proof. Attorney General Katzenbach
testified before the House Committee.”
“Mr. Katzenbach. The justification for that (Sec-
tion 5 of the Voting Rights Act covering changes in
State law) is simply this: Our experience in the areas
that would be covered by this bill has been such as
to indicate frequently on the part of State legislatures
a desire in a sense to outguess the courts of the United
States or even to outguess the Congress of the United
States.
* * *
“If you look at the past history on this, it seemed to
us that the State which had been discriminating in
the past should be subjected to some kind of limita-
tions as to any new legislation that it might propose.
* * *
“The Chairman. In other words, your language
on page 7, line 25, is all-sweeping and covers the enact-
ment of any law on voter qualifications.
Mr. Katzenbach: That is correct, Mr. Chairman
”
.
80. House Hearings, p. 60.
61
At the conclusion of these hearings, a report was is-
sued containing the following statement:
“The prevailing conditions in those areas where
the bill will operate offer ample justification for con-
gressional action because there is little basis for sup-
posing that the States and subdivisions affected will
themselves remedy the present situation in view of the
history of the adoption and administration of the sev-
eral tests and devices reached by the bill.”*!
In the Senate hearings,** the Attorney General’s in-
sistence on a legislative conviction appears even stronger.
“Attorney General Katzenbach. Senator, I think
that where there has been prior misconduct and that
has been shown, I don’t see any difficulty to saying
you have to serve a little period of penance here.
“Senator Ervin. Well, also I call attention—
“Attorney General Katzenbach. I will tell you,
if some of the States repealed their literacy tests to-
morrow, I wouldn’t believe it was done in order to
stop discriminating. I think it would be done because
they had a new device.”
Even though § 5 of the Act has not been precisely ap-
plied to the State of South Carolina, inasmuch as she has
not changed or sought to change her laws, it is nevertheless
under attack here in the complaint; and the part that this
section plays in the over-all scheme of congressional ac-
tion should be considered.
Contrary to the Attorney General’s firmly expressed
disbelief that any good thing can come from South Caro-
lina or the other States attained, it is worthy of more than
passing note to point to the actions taken by the Missis-
81. House Report, p. 19.
82. Senate Hearings, p. 62.
a? se 9
a ELLE SAIN AEN GIG SR SAL IEIBE SISP OCIS Mia Oa semana
62
sippi legislature prior to the passage of the Voting Rights
Act, which, so far as the legislative history of the Federal
act discloses, were not even considered by the Congress.“
These new Mississippi statutes (see Appendix A) place
beyond the pale of controversy the possibility that any rea-
sonable contention could be made that these new require-
ments are vague, arbitrary, hypertechnical or unnecessarily
difficult or that they do not have a direct bearing upon the
capacity to cast an intelligent ballot.
Forcing a State against its will to qualify as electors
persons who cannot even write their name does not com-
port with common sense, let alone constitutional princi-
ple. When such a person marks a ballot it is a game of
chance and not an intelligent act. What sort of justifica-
tion can be advanced for forcing that decision on a State
such as South Carolina, with 20% of her adult popula-
tion illiterate, and at the same time permitting the State
of Oregon with a 3% illiteracy rate to continue to impose
a literacy test as a qualification for voting. Why should
the ignorant 3% of Oregonians be denied the ballot when
1/5th of South Carolina’s electorate is federally enfran-
chised and authorized to play a kind of voter’s Russian
83. The author of United States v. Mississippi, Footnote 45,
supra, p. 34, recognized how wrong it was to pass judgment on
a state’s future conduct on the basis of what its officials might
have done in the past. Mr. Justice Black, speaking in Cameron
v. Johneon, ..... US. .-..., ——-. BC. —-... 46 LE ae 715, said:
It is true that we have only recently held that Mississippi
must not deny the constitutional right of Negroes to register
and vote. United States v. Mississippi, 380 U.S. 128. But this,
of course, does not mean that no good or valid law could come
out of the State of Mississippi. We should without hesita-
tion condemn as unconstitutional discriminatory voting laws
of Mississippi or of any other State. We should with equal
firmness, however, approve a law which on its face is de-
signed merely to carry out the State’s responsibility to pro-
tect people who want to get into and out of the State's
public buildings and to move along its highways freely with-
out obstruction.
63
roulette with that State’s government? Lack of educa-
tional opportunity is no answer, for it has never been
shown, as to South Carolina or as to any of the states
“selected”, that sufficient schooling to produce the bare
minimum literacy required to mark a knowing ballot has
not always been available to members of all races. “Liter-
acy and illiteracy are neutral on race, creed and sex, as
reports around the world show.”** When one pauses to
consider how patently this Court approved the use of liter-
acy tests in the Lassiter decision, the conclusion becomes
inescapable that this congressional action was purely and
simply a “legislative trial”—precisely the device condemned
by Mr. Justice Douglas in his dissent in Hannah v. Larche.®
Quoting from Alan Barth’s “Government by Investiga-
tion”, that opinion pointed out that the legislative trial was
a device for condemning men without the formalities of
due process. Continuing to quote, the decision stated:
“The legislative trial serves three distinct though re-
lated purposes: (1) it can be used to punish conduct
which is not criminal; (2) it can be used to punish
supposedly criminal conduct in the absence of evi-
dence requisite to conviction in a court of law; and (3)
it can be used to drive or trap persons suspected of
‘disloyalty’ into committing some collateral crime such
as perjury or contempt of Congress, which can then
be subjected to punishment through a judicial proceed-
ing.”
84. Lassiter v. Northampton County Bd. of Elections, Foot-
note 35, supra, p. 27. Texas, Florida and other States with
heavy Negro populations could adopt voter intelligence require-
ments now which could be based on a 6th grade educational
level, despite the fact that their past schooling has been racially
Segregated. So could California, where inferior Negro schooling
was blamed in the McCone Report for the robberies, arson and
murder stemming from the most recent race riot there.
85. 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307.
SPEEA AR: 2 FO 4 > eee
) ae a
\
64
He then quotes from Greene v. McElroy: °°
“Certain principles have remained relatively immut-
able in our jurisprudence. One of these is that where
governmental action seriously injures an individual,
and the reasonableness of the action depends on fact
findings, the evidence used to prove the Government's
case must be disclosed to the individual so that he has
an opportunity to show that it is untrue. ... We have
formalized these protections in the requirements of
confrontation and cross-examination. They have
ancient roots. They find expression in the Sixth
Amendment which provides that in all criminal cases
the accused shall enjoy the right ‘to be confronted
with the witnesses against him’. This Court has been
zealous to protect these rights from erosion. It has
spoken out not only in criminal cases, . . . but, also in
all types of cases where administrative and regulatory
actions were under scrutiny.”
In Justice Douglas’ words the opinion continued:
“What we do today is to allow under the head of due
process a fragmentation of proceedings against ac-
cused people that seems to me to be foreign to our
system. No indictment is returned, no commitment
to jail is made, no formal criminal charges are made.
Hence the procedure is condoned as violating no con-
stitutional guarantee. Yet what is done is another
short cut used more and more these days to ‘try’ men
in ways not envisaged by the Constitution. . . . This
is a serious price to pay for adopting a free-wheeling
concept of due process, rather than confining it to
the procedures and devices enumerated in the Con-
stitution itself. ... Men of goodwill not evil ones
86. 360 US. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377.
| ,
only, invent, under feelings of urgency, new and dif-
ferent procedure that have an awful effect on the
citizen.”*?
65
In three of the states which were “caught”, judg-
ments already rendered by the judiciary are frozen on
these attained States and the courts alike for an arbitrary
period of five years. Such a procedure not only wrong-
fully deprives the courts involved of a portion of their
judicial power, but it also runs afoul of a problem involved
in all anticipatory legislation, which was thus discussed
by this Court in Chastleton Corp. v. Sinclair: *
“... 80 far as this ( legislative) declaration looks to
the future it can be no more than prophecy and is
liable to be controlled by events. A law depending
upon the existence of an emergency or other certain
state of facts to uphold it may cease to operate if the
emergency ceases or the facts change even though
valid when passed.”
Yet under § 4 (a) every Court is arbitrarily deprived of
any discretion for a period of five years to make a find-
ing of changed facts. This inflexible proscriptive period
certainly runs counter to the effect required to be given
to changes of State law (such as have occurred in the
87. Compare the approach of Attorney General Katzenbach
when he was challenged as having placed execessive and arbi-
trary authority in himself to make determinations under Sec-
tions 4, 5, 6, 8 and 9:
“Attorney General Katzenbach: Senator, I don’t like, as
long as I am in this Position, having to make the determina-
tions which you regard as unbridled. But frankly I don’t
know a different way of dealing with it except the way
that we have attempted. To go into court all the time
and running into all those delays—I think if you balance
some discretion on the part of the Attorney General against
repeated denials of the right to vote, people who are entitled
to vote, it is better to let the Attorney General have a little
bit of discretion and get some people voting.”
88. 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841.
YEN SONAR RTT NEY SIRS ES
-
66
State of Mississippi) by this Court’s decision in Beli y.
Maryland.
The voting processes in these three “frozen” states
are to be subjected to the unlawful infusion of a large
percentage of persons who are so illiterate they can’t read
a name on a ballot or write a single letter of the alphabet.
These are people described by President Lyndon Johnson
as living in a world of darkness. Certainly they are cor-
rectly characterized by South Carolina as incompetents in
the field of government.
This Act is coldly calculated to punish the convicted
States by bringing the e masses of persons into the State's
election processes and maintaining them there for a mini-
mum of five years, with the expectation that they will make
such inroads into the government that they can never be
displaced. Such an attempt to adulterate the very political
process that might be expected to right the wrong ought
to be especially scrutinized.”
Although the 5th Amen-ment speaks in terms of the
rights of a “person”, which word does not normally include
a State or governmental subdivision, it is hard to con-
ceive that a central government established on the prin-
ciples of limited, enumerated powers could be held to
possess the power to condemn a portion of its creators
without affording them a hearing.’ No party ought to
89. 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822.
90. Cf. Footnote 4 in U. S. v. Carolene Products Co., 304
U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234.
91. Cf. Grosjean v. American Press Co., 297 U.S. 233, 56
S.Ct. 444, 80 L.Ed. 660, where the Court recognized that while a
corporation was not a “citizen” within the privileges and im-
munities clause, it was a “person” within the meaning of the
equal protection and due process clauses. The corporation was
permitted to set aside a tax statute which purported to classify
newspapers (that Huey Long didn’t like) but which the Court
could see was just a subterfuge because the legislature knew in
advance exactly who would be covered and who wouldn't.
67
be condemned unheard. No better instrument has been
devised for arriving at truth than to give one who is in
jeopardy of serious loss, notice of the case against him
and an opportunity to meet it. The Voting Rights Act
is not a mere instance of name calling by public officials;
it is a determination of status.°? The Congress ought not
be immune from the historic requirements of fairness
merely because they act, however conscientiously, in the
name of Civil Rights or against whole States rather than
single officials.
Attorney General Katzenbach assumed the position
with Congress that judicial processes were “too slow” when
he asked for the novel powers of this Act. To the House
he said:
“What is necessary, what is essential, is a new ap-
proach, an approach which goes beyond the tortuous,
often-ineffective pace of litigation.”™
In the Senate Hearings, he said:
“It (the condition of low Negro voter registration)
exists largely because the judicial process, upon which
all existing remedies depend, is institutionally inade-
quate to deal with practices so deeply rooted in the
social and political structure.” (p. 9). “In place of
fruitless legal maneuvering, the bill offers a workable
administrative solution.” ( p. 14).
We respectfully submit that when officials of the
Executive Department stand on the threshold of the op-
portunity to make proof in a Court of Law that they are
entitled to bring to bear the broad new procedural rule
made by this Court in U. S. v. Mississippi,“ and blandly
92. House Hearings, p. 9.
93. House Hearings, p. 9.
94. Supra, footnote 45, p. 34.
LORS ROLE IRE NIM LOE APSR IE” ISLAM ERR
68
assert to Congress that judicial processes are “inadequate”
and “too slow”, they do not thereby manufacture any law-
ful right for Congress to exercise judicial power. An
emergency, real or imagined, does not create constitutional
power.”» The Attorney General’s impatience with due
process and his willingness to compromise procedural prin-
ciples for sake of a quick, easy conviction remain beyond
the bounds of the document which is law for rulers and
men alike.
The United States is a nation which is unique in re-
corded time; and, we submit, for a single reason more
than any other—it is governed by a written Constitution
that does not bend or change with temporal winds and
popular cries. This is a nation that is able to contain
many views under the same flag. Some citizens believe
that the Communist party is a menace to our security and
that any process to rid the Country of that “menace”
should be used. This Court does not agree that means
beyond the Constitution are available.” Still other groups
are quite dedicated to the belief that the present govern-
ment of several Southern States are more deserving of
opprobrium than the Communists. Both Communists and
Southerners are lambasted in most new media, and any
person (or court) who asserts that either group is entitled
to the shield of the Constitution is likely to incur great
wrath. But the plain truth is that short-cuts and devia-
tions which respond only to vox populi make awful in-
roads on the rights of everyone, when, in other times,
those precedents cut a different way. The judicial process
95. Veix v. Sixth Ward Building & Loan Assn., 310 US.
2, 60 S.Ct. 792, 84 L.Ed. 1061.
96. Recent examples are found in U. S. v. Brown, Footnote
73, supra, p. 52, and Apthecker v. Secretary of State, Footnote
70, supra, p. 50, and Albertson, et al. v. »ACB, No. 3, Oct. Term
1965, 11/15/65.
69
is not “institutionally inadequate” in any institution which
1s compatible with the Constitution. In this case this Court
is the first, last and only chance for the State of South
Carolina to be accorded the guarantees of that document.
C.
The Act Was Drafted to Apply to Known, Named
States and Subdivisions Alone and Its Purported
“Formula” Is Merely a Sophisticated Subterfuge.
The rule which forbids sophisticated as well as sim-
ple-minded denials of constitutional rights applies to ac-
tions by the Congress equally as it does to State legislative
action. The states selected for inclusion in this Act were
known and often named.” Although Attorney General
Katzenbach indicated that the 50% figure had been selected
because it “is a good round number,” his testimony in
the Senate indicates that something more than happenstance
was involved in the selection of that “good round num-
ber” and the other “trigger” procedures. There he testi-
fied:
“Attorney General Katzenbach. Senator, in search-
ing the test that made a relationship between the 15th
amendment and these factors, I think one could, as I
have said repeatedly here, fairly make this assump-
tion in this test. If checking that against our figures,
it indicated that the States of Mississippi, Louisiana,
Alabama were not included within this test, I would
have had doubts about the test myself, because I know
97. They are Louisiana, Mississippi, Alabama, Georgia, South
Carolina, Virginia and 34 counties in North Carolina. See, e.g.,
House Hearings, pp. 12, 19, 42, 69, 77, 78, 85, 96, and Senate
Hearings, p. 17. Alaska and one county each in Arizona, Idaho
and Maine were “caught”.
98.
House Hearings, p. 26.
PAARL
70
those are areas where we have brought repeated cases
where we—where we have won cases and we have
the facts in other cases which I believe establish vio-
lations of the 15th amendment.
“So I am frank to say if, in experimenting as we
did with various tests to try to get them fair and ob-
jective, and with a relationship between that and
the 15th amendment, if I had discovered that a test
worked out in such a way that it included six States
with no Negro populations and eliminated all States
with large Negro populations, I would have looked
again at the test.”
Thus the selected states didn’t just happen to come within
the “test’—the “test” was selected to fix those States
chosen for conviction. If one approaches the resolution of
the legal question here without guile, one must admit that
Congress has legislated against certain designated states
and, therefore, congressional power to pass this legislation
must forthrightly be tested as though Congress had frankly
named the states to be included and pointedly excused
all others not so named, for no one not included now can
do anything which will bring them under the net. It is
wrong and constitutionally false for a prospective voter
in South Carolina of any race to be relieved of the require-
ment of completing an application form required by South
Carolina law, when precisely the same form could be re-
quired in the State of Florida or Texas, where racial dis-
crimination in voting was declared tobe known to exist
in testimony given to Congress, and there be enforced
whether it had been enacted prior to or after the adop-
71
tion of the Voting Rights Act, just because the require-
ment was not on the statute books November 1, 1964.%
D.
The Creation of an Irrational, Irrebutable Presumption
Results in Legislative Conviction and Forfeiture of
Sovereign Rights Without Judicial Proceedings.
Completely without regard to race, color or previous
condition of servitude, of those involved, this Act declares
that wherever less than 50% of the persons of voting age
in a state or subdivision were not in fact registered on a
selected past date, or when 50% of such persons failed or
99. The following dialogue bears this out:
“Mr. Cramer: At the top of page 2, the test and device
that triggers the approach in this bill, is the device or test
which the Attorney General determines was maintained on
November 1, 1964.
Mr. Katzenbach: Yes.
Mr. Cramer: Any State hereafter could enact literacy
test statutes and not be subject to this bill; right?
Mr. Katzenbach: Yes; if it did not have a literacy test
on November 1, 1964, then it could enact a literacy test law.
Mr. Cramer: They could discriminate in the future all
they want to and not be subject to this bill.
Mr. Katzenbach: Congressman, I didn’t intend to say
that literacy tests always discriminate.
Mr. Cramer: I didn’t either.
Mr. Katzenbach: I think we are hitting the areas here
where there has been discrimination and that that discrim-
ination has been through the use of literacy tests. I don’t
like literacy tests but I would have no constitutional ob-
jection to literacy tests in other States.
Mr. Cramer: Florida, Kentucky, and Tennessee could
have literacy tests tomorrow, but they would not be subject
to this bill.
Mr. Katzenbach: Correct.”
House Hearings, p. 107. He could have added Texas and
Arkansas also, both of which contain many counties with low
voter registration and participation in areas of heavy colored
populations, not to mention the District of Columbia. See Senator
Ervin’s statement in the Senate Hearings, p. 777.
72
neglected to vote in a designated past election, and the
state was one of a known, named group of states which
on the past date required its electors to demonstrate or
possess literacy, then such a state is to be stripped of a
part of its sovereign powers to enforce its own valid laws.
This invalidation remains until the state goes to a Federal
Court in Washington, D. C.’” encumbered by a withdrawal
of the presumption of innocence which normally attends
every official act, and there assumes and carries the bur-
den of proving that during the past five years there has
been no denial or abridgement of the right to vote on ac-
count of race or color anywhere within its boundaries as
the result of enforcement of its literacy requirement. Three
states are decreed not to be entitled to even hazard such
a burden for five years because past legal proceedings in
a minor portion of their counties or parishes are made
conclusive statewide for five years into the future.
Thus, the presumption is that if a state was a member
of the group using specified voter qualifications and if
its past statistical record was wrong, it must come in and
prove—not what its 1964 statistics truly were—not that
such statistics were not the result of denials on account
of race or color, or that its 1964 requirements were valid—
but. that for five years no denials of the right to vote be-
100. The Act tacitly admits the novelty of moving the cause
of action from the place it arose and would normally be brought
to Washington when Section 14(d) of the Act permits extra terri-
torial process; but subpoenas for witnesses more than 100 miles
from Washington can only be had, on a showing of cause, under
an order of the Court. The suggestion that fixing the jurisdic-
tion in Washington for the States was done out of a desire for
uniformity of interpretation of the Act is wholly negated by
permitting the Attorney General to range over the entire af-
fected area bringing his suits in any U. S. District Court which
normally has jurisdiction of the selected defendant. Section 12(f).
The plain truth of the matter is that the Congress wanted to slam
the door of every southern courthouse to litigation by the selected
States to discourage and defeat any attempt by them to seek
judicial relief from the legislative fiat.
73
cause of race or color have occurred anywhere in the
state which were in any way connected with its then valid,
yet now condemned, requirements have taken place.
In Wieman v. Updegraff,’" this Court stated:
“Indiscriminate classification of innocent with know-
ing activity must fall as an assertion of arbitrary
power.”
When the Attorney General admits that he has cast a
presumption calculated to bring in innocents who are given
the duty of proving their way out of the entrapment, with
the shield of innocence denied to them, he admits that the
Voting Right Act is arbitrary and unconstitutional because
the presumption ne designed is irrational, in addition to
being, to all practical effects, irrebuttable. Numerous prec-
edents exist in this Court’s past decisions supporting this
point. A number of these precedents were collected in the
brief filed by the State of South Carolina (see pp. 56 and
57). These and other cases were cited in the most recent
pronouncement of the Court on the subject, the case of
United States v. Romano, No. 2, October Term, 1965, No-
vember 22, 1965. There the Court held that while pres-
ence at a still was a sufficient basis for a rebuttable pre-
sumption which would sustain a conviction for carrying
on, aiding or abetting the business of distilling,’ presence
at an illegal still site had no reasonable or rational con-
nection sufficient to support a conviction for possession,
custody or control of such a still.
Low registration figures in areas where members of
the Negro race reside in large numbers could conceivably
have some relationship to racially discriminatory prac-
101. 344 U.S. 183. 191, 73 S.Ct. 215, 97 L.Ed. 216.
102. See Gainey v. United States, 380 US. 63, ae
L.Ed.2d ¥
74
tices. Low registration figures of Negroes as a racial group
in such a community would be more probative.’® But
to completely eliminate any sort of a connection between the
percentages used and racial make up of the population,
groups to which such figures were applied renders the
“formula” of the presumption as irrational as that which
was condemned in the Romano case. The reason the Vot-
ing Rights Act advanced the presumption proposed was
that “experiments” showed it “caught” those states de-
sired to be convicted and few enough others to make it
have a veneer of fairness yet pass the Congress handily.
Perhaps the most crushing proof of the arbitrary notion on
which it is based is disclosed by the fact that its proponents
would not hazard making it prospective but insisted on
limiting its operation only to a past date. It is difficult
to put into written words a more pointed demonstration
of the ex post facto nature and effect of this legislation
than was articulated by Mr. McCullough and Mr. Cramer
and others in the House Report in this way:
“(The Voting Rights Act’s) 50 percent voter-registra-
tion test, or automatic triggering device, being retro-
spective in viewpoint, does not consider the actions
of a State or political subdivision in the present, but
rests upon past occurrences. Despite the gross injus-
tices perpetrated by some individuals and govern-
mental bodies, we find the creation of penalties today,
to be applied in the form of indictments for yester-
day’s sins, to be philosophically undesirable, especially
in the light of the delicate Federal-State relationship
and the constitutional issues involved. There is no op-
portunity open to all for the redemption of wrong-
doers. Good faith compliance with the spirit and letter
103. It was contended that such racial statistics are hard to
compile, but it may be noted that Congress received “evidence”
and “testimony” as to such statistics in a number of areas. E.g.,
House Hearings, pp. 32, 33, 35, 37, 135-257, 587-590: Senate Hear-
ings, pp. 190, 771-773, 850-975, 1175-1445.
75
of the law after passage of this voting rights bill would
be of no avail.
The ‘numbers game’ approach, obviously designed
to hit a pre-designated target, is clearly an arbitrary
device unless we are to believe that, without evidence,
without a judicial proceeding or a hearing of any kir.d,
a contrived mathematical formula is capable of f2‘ rly
delineating those States that discriminate on account of
race or color and those that do not. As noted earlier,
it is conceded by the committee-Celler bill’s proponents
that the figures used do not purport to show a propor-
tionally low ratio of Negro to white registrants or vot-
ers which might reflect a pattern of racial discrimina-
tion. In fact, discrimination prohibited by the 15th
amendment could continue untouched under the for-
mula so long as 50 percent of the voting age popu-
lation on November 1, 1964, was registered or voted—
even if they were all whites. We find it to be quite
illogical to declare, on the basis of the formula, that
Louisiana is guilty of discriminating since it had only
47.3 percent of the eligible population voting in the
1964 election, while Hawaii with 52 percent voting is
deemed innocent (subcommittee transcript, p. 29).
Meanwhile, Texas escapes censure, although it had
only 44 percent participation. Yet, as a result of this
arbitrary calculation, a State’s voting qualifications
are suspended until it comes to a selected court in the
District of Columbia and establishes the fact that its
‘tests and devices’ were never used during the past
5 years to deny or abridge the right to vote.
The fair and effective enforcement of the 15th
amendment calls for precise identification of offenders,
not the indiscriminate scatter-gun technique evidenced
in the 50 percent test. Where local election officials
practice discrimination, a Federal remedy should be
readily available to be swiftly administered even if 99
percent of the eligible voters are properly registered
or voted. However, the committee-Celler bill with
its 50 percent test would engulf whole States in a tidal
wave of Federal control of the election process, even
SR Re RS aR ar TR RRE ONS RO CRE RM PEIRCE
76
though many of the counties or parishes within that
State may be acknowledged by all to be absolutely
free of racial discrimination in voting.’
2
The Constitution Does Not Permit the Classification
of States.
Article IV, Section 3, Clause 1 of the Constitution
provides:
“New States may be admitted by the Congress into
this Union; but no new State shall be formed or erected
within the Jurisdiction of any other State; nor any
State be formed by the Junction of two or more States,
or parts of States, without the Consent of the Legis-
latures of the States concerned as well as of the Con-
gress.”
The decisions of this Court have consistently emphasized
that this permission to admit new states was a permission
to admit such states on a basis of equality with the states
that originally formed the Union. The admitting acts of
the various states have uniformly provided that they are
to be admitted on the same basis as the original states in
all respects whatever.’
A little over a year after Mississippi was admitted to
the Union this Court, in McCullough v. Maryland, supra
(p. 410 of 17 U.S.), stated:
“In America, the powers of sovereignty are divided
between the government of the Union, and those of the
States. They are each sovereign, with respect to the
objects committed to it, and neither sovereign with
respect to the objects committed to the other. We can-
104. House Report, p. 45.
105. See, e.g., the Enabling and Admitting Acts for the
State of Mississippi, supra, p. 2.
77
not comprehend that train of reasoning which would
matitain that the extent of power granted by the
people is to be ascertained, not by the nature and terms
of the grant, but by its date. Some state constitutions
were formed before, some since that of the United
States. We cannot believe that their relation to each
other is in any degree dependent upon this circum-
stance. Their respective powers must, we think, be
precisely the same as if they had been formed at the
same time.”
In Pollard, et al. v. Hagan, et al.’ the Court had
occasion to discuss the status of states admitted out of the
territories ceded by the original states of Virginia and
Georgia (which includes Mississippi). The Court there
pointed out that the deeds of cession contained an express
stipulation as to any new States formed out of the land
cedes that “‘such State shall be admitted by its delegates into
the Congress of the United States, on an equal footing with
the original states in all respects whatever.” In discussing
such a new State’s sovereignty, the Court stated:
“The right of Alabama and every other new State to
exercise all the powers of government, which belong
to and may be exercised by the original States of the
Union, must be admitted, and remain unquestioned,
except so far as they are temporarily, deprived of con-
trol of the public lands.”
In Permoli v. Municipality No. 1 of the City of New
Orleans," the Court held that the act admitting the State
of Louisiana had authorized the framing of a State Con-
stitution which established, among other things, a republican
government. In discussing the relationship of the new State
to the ordinance of Congress which formerly governed the
106. 44U.S. (3 How.) 212, 224, 11 L.Ed. 565.
107. 44US. (2 How.) 589, 610, 11 1... 739.
78
Territory before the State was created, the opinion pro-
vided:
“So far as they conferred political rights, and secured
civil and religious liberties (which are political rights)
the laws of Congress were all superseded by the State
Constitution. Nor is any part of them in force, unless
they were adopted by the Constitution of Louisiana as
laws of the State. It is not possible to maintain that
the United States hold in trust, by force of the ordi-
nance, for the people of Louisiana, all of the great ele-
mental principles, or any one of them, contained in the
ordinance, and secured to the people of the Orleans
territory during its existence. It follows, no repug-
nance could arise between the ordinance of 1787 and an
act of the legislature of Louisiana, or a city regula-
tion founded on such act;”
This reasoning was based upon the fact that Congress had
admitted the State “on an equal footing with the original
states in all respects whatever.”
In speaking of the status of admission of the State of
Illinois in Escanaba and Lake Michigan Transportation Co,
v. City of Chicago,’ this Court stated:
“On her admission she at once became entitled to and
possessed of all the rights of dominion and sovereignty
which belonged to the original states. She was ad-
mitted, and could be admitted, only on the same foot-
ing with them. The language of the act of admission
is, ‘on an equal footing with the original! states in all
respects whatever.’ 3 St. 536. Equality of constitu-
tional right and power is the condition of all the states
of the Union, old and new.” (Emphasis by the Court.)
The leading case in this field and the one which laid
the principle to rest so strongly that it has not substan-
108. 107 U.S. 678, 2 S.Ct. 185, 193, 27 L.Ed. 442.
79
tially arisen since is Coyle v. Smith, where the Court
stated:
“The power is to admit ‘new States into this Union.’
(Emphasis by the Court.)
‘This Union’ was and is a union of states, equal
in power, dignity, and authority, each competent to
exert that residuum of sovereignty not delegated to
| the United States by the Constitution itself. To main-
tain otherwise would be to say that the Union, through
| the power of Congress to admit new states, might
come to be a union of states unequal in power, as
including states whose powers were restricted only
by the Constitution, with others whose powers had
been further restricted by an act of Congress accepted
as a condition of admission. Thus it would result, first,
that the powers of Congress would not be defined by
the Constitution alone, but in respect to new states,
enlarged or restricted by the conditions imposed upon
new states by its own legislation admitting them into
the Union; and, second, that such new states might
not exercise all of the powers which had not been
delegated by the Constitution, but only such as had not
been further bargained away as conditions of ad-
mission.
The argument that Congress derives from the duty
of ‘guaranteeing to each state in this Union a republi-
can form of government,’ power to impose restrictions
upon a new state which deprive it of equality with
other members of the Union, has no merit. It may
imply the duty of such new State to provide itself with
such state government, and impose upon Congress the
duty of seeing that such form is not changed to one
anti-republican,—Minor v. Happersett, 21 Wall. 162,
174, 22 L. ed. 627, 630,—but it obviously does not
confer power to admit a new state which shall be any
less a state than those which compose the Union.”
res
109. 221 U.S. 559, 31 S.ct. 688, 66 L.Ed. 853.
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80
In United States v. Texas,''® the Court reasoned that
what is now referred to as the “equal footing” clause
(Article IV, Section 3, Clause 1, supra) could not be
meant to overcome differences in area, location, geology
and latitude which create diversity in economic aspects,
rather it was reasoned that the clause was intended to
create “parity as respects political standing and sov-
ereignty.”""
Any classification of states such as Congress has at-
tempted to make in th
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