# Amicus Curiae Brief — South Carolina v. Katzenbach > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0226%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 898 ## Text preme FILE 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 ~_—— 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0226%3A11. Public record. Not legal advice.