Amicus Curiae Brief — South Carolina v. Katzenbach

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sar SEe2 S8Seegasegsaeesgde a

JOINING IN THIS Brier,

Hon. Bert T. Kobayashi, Attorney General of Hawaii.

Hon. John J. Dillon, Attorney General, Theodore D. Wilson,

Assistant Attorney General, and John O. Moss, Deputy

Attorney General, of Indiana.

Hon. Lawrence F. Scalise, Attorney General of Iowa.

Hon. Robert C. Londerholm, Attorney General of Kansas.

Hon. Richard J. Dubord, Attorney General of Maine.

Hon. Thomas B. Finan, Attorney General of Maryland.

4 Hon. Frank J. Kelly, Attorney General and Robert A.

Derendoski, Solicitor General, of Michigan.

Hon. Forrest H. Anderson, Attorney General of Montana.

4 Hon. Arthur J. Sills, Attorney General of New J ersey.

a Hon. Louis J. Lefkowitz, Attorney General of New York.

E Hon. Charles Nesbitt, Attorney General, and Charles L.

Owens, Assistant Attorney General, of Oklahoma.

Hon. Robert Y. Thornton, Attorney General of Oregon.

4 Hon. Walter E. Alessandroni,

vania. ;

‘Hon. J. Joseph N

| Hon. John P. C

4 Hon. C. Donald

s ginia.

Hon. Bronson C. LaF cllette

“consin.

Attorney General of Pennsy]-

ugent, Attorney General of Rhode Island.

onnarn, Attorney General of Vermont.

Robertson, Attorney General of West Vir-

» Attorney General of Wis.

“Hon. William Maynard, Attorney General

of New Hamphire

Table of Contents,

Interest of these amici curiae

Summary of argument

Argument

I, Congress has power to enact appropriate legisla-

tion precluding the states from denying the right

fo vote on the basis of color

A, Although a state has power to determine the

qualifications for Voting, such power may not be

used to violate the Fourteenth and Fifteenth

Amendments

B. Congress has the power to enforce a Negro

citizen's constitutional voting rights by **ap-

propriate legislation’

Il. Congress reasonably determined on the basis of

overwhelming evidence that Negroes in several

states and political subdivisions were being sys-

tematically deprived of the right to vote, and that

literacy and other tests and devices were the chief

means being used to accomplish that result

Ill. Congress reasonably concluded in the light of

extensive experience that case-by-case enforcement

of voting rights under previous legislation could

hot cope with the seale and dimension of the prob-

lem in certain states

A. Prior voting rights legislation was limited in

scope and required case-by-case enforcement

B. The case-by-case approach proved to be en-

tirely inadequate to deal with the magnitude of

the problem

IV. In the light of the magnitude and nature-of the

&

problem, and its failure to yield to past case-by-

11

17

ii TABLE OF AUTHORITIES CITED

case procedures, the comprehensive approach of

the Civil Rights Act of 1965 is a reasonable and

appropriate exercise of congressional power 20)

A. The presumption created by section 4(b) of the

Voting Rights Act of 1965 is reasonable 20

B. There is preeedent for suspending otherwise

proper tests and devices where they have become

infected with abuse 23

V. The Act is not a bill of attainder, ex-post-facto

law, or other type of unreasonable or improper

legislation 25

Conclusion o7

Table of Authorities Cited.

CasEs.

Alabama v. United States, 371 U.S. 37 10n., 12

Alabama v. Rogers, 187 F. Supp. 848 16

Anderson v. City of Albany (No. 20501, 5th Cir.) 18

Bailey v. Patterson, 199 F. Supp. 590 18

Brown v. Board of Edueation of Topeka, 847 U.S. 483 18

Cases v. United States, 131 F. 2d 916

Casey v. United States, 276 U.S. 418

Chastleton Corp. v. Sinclair, 264 U.S. 543

Coleman, In re, 208 F. Supp. 199

Coyle v. Smith, 221 U.S. 559

Cummings v. State of Missouri, 4 Wall. 277

Dinkens v. Attorney General, 285 F. 2d 430

Dunn v. Grisham, 157 So. 2d 766

Guinn v. United States, 238 U.S. 347

Guaranty Trust Co. v. Henwood, 307 U.S. 247

PE gg Ota ONTO SS OIG REARS AIDE OER OH AEDT SG BNR AN .

TABLE OF AUTHORITIES CITED lii

Gomillion v. Lightfoot, 364 U.S. 339 9, 12

Hawker v. New York, 170 U.S. 189 25

Heart of Atlanta Motel, Ine., v. United States, 379

US. 241 10

James Everard’s Breweries y. Day, 265 U.S. 545 24

Katzenbach y. McClung, 379 U.S. 294 10

Kennedy v. Bruce, 298 F, 24 860 19

Lane v. Wilson, 307 U.S, 268 12

Larche v. Hannah, 177 F. Supp. 816

Lassiter v. N orthampton County Board of Elections,

360 U.S. 45 8

Lassiter v. Taylor, 152 F. Supp. 295 18

Lewis v. Fidelity & Deposit Co. of Maryland, 292 U.S.

599 26

Louisiana v. United States, 380 U.S. 145 8n., 10n., 12

M’Culloch v. State of Maryland, 4 Wheat. 316 10

Meredith v. Fair, 7 Race Rel. L. Rep. 741 19

Mitchell v.Wright, 69 F. Supp. 698 14n.

Mobile, Jackson & Kansas City Railroad Co, y. Tur-

nipseed, 219 U.S, 35 26

Morrison y, California, 291 U.S. 82 25

Myers vy. Anderson, 238 U.S. 368 8n., 11

National Labor Relations Board y. Newport News

Shipbuilding & Dry Dock Co., 308 U.S. 241 23

Neal v. Delaware, 103 U.S. 370 8n.

Nixon v. Condon, 286 U.S. 73 8,11

Nixon vy, Herndon, 273 U.S. 536 8,11

Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 96

Porter v. Senderowitz, 158 F. 2d 435 26

——e PARAS

iv TABLE OF AUTHORITIES CITED

_ Reynolds v. United States, 292 U.S. 443 6

Schnell v. Davis, 336 U.S. 933 8n., 12

Senderowitz v. Fleming, 330 U.S. 848 2%

Smith v. Allwright, 321 U.S. 649 8, 11

Stell v. Savannah-Chatham County Board of Educa-

tion, 318 F. 2d 425 18, 19

Terry v. Adams, 345 USS. 461 11

United States v. Alabama, 192 F. Supp. 677 14

United States v. Association of Citizens Councils of

Louisiana, 187 F. Supp. 846 16

United States v. Duke, 332 F. 2d 759 19

United States v. Louisiana, 225 F’. Supp. 303 9, 11

United States v. Lynd, 301 F. 2d 818 18

United States v. Manning, 215 F. Supp. 272 9

United States v. Mississippi, 380 U.S. 128 10n,

United. States v Raines, 362 U.S. 17 9n,

United States v. Reese, 92 U.S. 214 11

United States v. Thomas, 362 U.S. 58 9n., 12

Velazquez v. United States, 319 U.S. 770 25

Virginia, Ex parte, 100 U.S. 339 9, 10

Yarbrough, Ex parte, 110 U.S. 601 11

STATUTES.

Constitution of the United States, art. I, § 2 8n.

Constitution of the United States, art. I, § 8 10n.

Constitution of the United States, art. I, ¢ 9 25n.

Constitution of the United States, Tenth Amendment 81.

Constitution of the United States, Fourteenth Amend-

ment 1n., 2, 4, 5n., 6, 7, 8, 9, 20, 23, 26

TABLE OF AUTHORITIES CITED ¥

Constitution of the United States, Fifteenth Amend-

ment In., 2, 4, 5, 6, 7, 8, 9, 11, 20, 23, 26, 27

Constitution of the United States, Seventeenth Amend-

ment 10n.

Public Law 89-110 Voting Rights Act of 1965, Section

' 4(e) and Section 4(b) 1 et seq.

71 Stat. 634, 42 U.S.C. $§ 1971, 1975-1975(e), 1995 9n.

74 Stat. 86, 42 U.S.C. §§ 1971(e), (e), 1974-1974(e),

1975(h) 9n.

Federal Rules of Civil Procedure, Rule 53(c) 16

MISCELLANEOUS.

Black, Constitutional Prohibitions, § 179 26

Christopher, ‘‘The Constitutionality of the Voting

Rights Act of 1965,’’ 18 Stanford L. Rev. 7-9 19n.

Cox, ‘‘Constitutionality of the Proposed Voting

Rights Act of 1965,’’ 3 Houston L. Rev. 10 4n., 11

73 Harv. L. Rev. 1358 18

Hearings before the Subcommittee on Constitutional

Rights of the Committee on the J udiciary, United

States Senate, 87th Cong. 2d Sess., on S, 480, S. 2750

and S. 2979 13n.

H.R. Rep. No. 439, 89th Cong. Ist Sess. 12n., 15n., 21n., 22n.

Sen. Rep. No. 162, parts 2 and 3 17n., 19n., 22n.

1959 United States Commission on Civil Rights Report 13n.

1 1961 United States Commission on Civil Rights

Report 12n., 15n., 17n.

73 Yale L.J. 90 17n., 18, 19

_———

Supreme Court of the United States.

Ocroser Term, 1965.

No. 22, ORIGINAL.

STATE OF SOUTH CAROLINA,

Plaintiff,

v.

NICHOLAS pr B. KATZENBACH,

ATTORNEY GENERAL OF THE Unirep Srarzs,

Defendant.

BRIEF OF THE ATTORNEY GENERAL

OF MASSACHUSETTS,

AMICUS CURIAE.

Interest of These Amici Curiae.

The above-named Attorneys General join in this brief

amicus curiae in support of the Voting Rights Act of 1965.

The purpose of the Act is to control the discriminatory use

of literacy and like tests and devices in those few states

and localities where they are used as vehicles for prevent-

ing Negroes from voting,’ and to assure that all citizens

may exercise the right to vote on equal terms.

"Some of the States joining herein have literacy and like tests

themselves; some do not. New York joins in this brief and argu-

ment only as to the applicability of the Fifteenth Amendment and

specifically reserves the question of the applicability of the Four-

teenth Amendment to the cases arising under section 4(e) of the

y

‘The above-named Attorneys General are convinced that

the Act does not offend the Constitution, and that, further,

it merits the support of all who believe that the day has

passed when denial by a state of the most basic rights

inherent in a United States citizen can be tolerated.

At issue is Congress’s power to cope with an enforce.

ment problem that has beset it sinee adoption of the Fif-

teenth Amendment. By ratifying the Fifteenth Ament.

ment the states determined beyond dispute that no state

should have the power to deny or abridge the rights of

citizens of the United States to vote because of race or

color, Seetion 2 of the Fifteenth Amendment expressly

gave Congress power to enforce its provisions by ‘tappro-

priate legislation."’ Yet to this day the provisions of the

Vifteenth Amendment have remained a dead letter ina

fow states; and Negroes in those states have been and still

are denied the right to vote, because of their race.

The outeome of this case will determine whether at long

lust the Fifteenth Amendment is to be given practical

effect with adequate, timely methods of enforcement, as

opposed to those means which history has proved to be

ineffective, too little, and too late.

The above-named Attorneys General believe that Con-

gress may and must take appropriate steps to ensure to

Negro citizens everywhere their constitutional right to

vote on terms the same as whites. Those who join in

this brief do not doubt that each state has the right to

establish the qualifications of voters. They would assert

and defend such right against improper encroachment.

But we are a nation, not just a group of states—-and a

state’s power to determine the qualifications of voters

must be exereised in harmony with the standards of the

Fifteenth Amendment.

Voting Rights Act of 1965 (Morgan v. Katzenbach, D.C. D, Col,

Nov. 17, 1965; and United States vy. County Board of Election of

Monroe County, D.C. W.D.N.Y., Dee. 8, 1965).

—

3

The Voting Rights Act of 1965 is intended to abolish

the well-documented practice in a few states of using

literacy and like tests and devices, not to test literacy or

maintain reasonable and uniform minimum standards for

all voters, but to give local registrars a legalized pretext

for turning down all or most Negroes while registering

whites, After it became overwhelmingly clear that OXisting

remedies, no matter how Vigorously pursued, were inade-

quate, Congress had no alternative but to frame new legis-

lation to cope with the situation.

Th Voting Rights Act of 1965. reflects a rational, ap-

propriate and measured approach to the problem, It (1)

provides for suspending local literacy and like tests and

devices in those few states and localities where less than

fifty per cent of persons of voting age were actually

registered on November 1, 1964: and (2) it provides for

federal examiners to register the victims of discrimina-

tion in areas where local registrars refuse to register

qualified Negroes. Also, it provides for judicial review and

for termination of the Act's application wherever diserim-

ination is disproved.

The Act may not reflect the only possible approach,

Opinions may differ as to the wisdom of its every detail.

But overall, as said, it reflects a rational, appropriate and

measured approach to a most difficult problem, It calls for

no greater intrusion of federal responsibility than is war-

ranted in the light of experience. As the former Solicitor

General of the United States said about the Act:

“Whether the shift of responsibility [from state

to federal] proves great or small in the end depends

entirely upon the willingness of the person affected

now to conform to the fifteenth amendment’s declara-

tion that the right of a citizen to vote shall not be

denied or abridged on account of race or color. The

bill will have no effeet upon the respective functions

4

of state and federal governments—it will not bring

one iota of federal intervention—in those states and

localities in which the fifteenth amendment is made a

living reality as the Constitution directs. .. .’’?

Each State joining in this brief has a substantial interest

in the ending, within sister states, of a denial of fundamental

constitutional rights. This nation’s identity and purpose

derive from a common allegiance to the Constitution.

Denial by any state, solely because of race or color, of a

citizen’s right to vote affronts the principles which make

us one nation. Such denial is a source of damage to every

other state.

Today, residents of one state frequently move to an-

other, carrying with them training and attitudes from their

former residences. It is of concern to the States joining

herein that newly arrived Negro residents will not come

from a background of systematic deprivation of their con-

stitutional and political rights. Quite apart from the in-

justice that such citizens will have suffered, they will be

poorly prepared to participate ii the democratic process

at their new residence. Furthermore, when, under color

of law, any state denies to Negroes the right to vote, its

action must inevitably lend a facade of respectability to

the misguided efforts of those persons in other states who

might desire to hamper the efforts of Negro citizens to

exercise their legal and constitutional rights. In this

fashion the legally established discrimination practiced by

a few states serves throughout the country to retard na-

tional progress toward full equality and racial harmony.

Every state, therefore, is interested in seeing that the rights

conferred by the Fourteenth and Fifteenth Amendments

are uniformly effective throughout the nation.

2 Cox, ‘‘Constitutionality of the Proposed Voting Rights Act of

1965,’’ 3 Houston L. Rev. 10.

5

In addition, our nation’s posture abroad suffers if solemn

constitutional commitments are in default. Opponents in

the international arena use the denial of rights in any state

to mischaracterize our entire democracy. In this further

respect, the denial of rights in a few states is injurious

to all.

And, of course, the composition of our federal govern-

ment—the men who are elected to national office and our

Senators and Representatives—is determined by the com-

position of the electorate. In a state where less than half

the eligible voters are registered, enrollment of now un-

registered voters could result in substantia] changes both

in the individuals representing the state and in the policies

they pursue. Such changes could have important effects

on national policies influencing all the states. It is plainly

of significance to all the states whether the make-up of the

Congress reflects all the electorate in certain states or just

the white part of it?

For the foregoing reasons, the States joining herein

as amici curiae have vite! interests in this case. It is

their deep conviction that the Voting Rights Act of 1965

is not only constitutional but reflects needed’ action by

Congress to secure constitutional rights essential to the

vitality and health of the nation.

Summary of Argument.

The Fifteenth Amendment provides that no state shall

have power to deny or abridge the rights of citizens of

*See also the second paragraph of the Fourteenth Amendment,

which specifically provides for a reduction in Congressional repre-

sentation in the case of states which deny adult citizens the right

to vote. This provision clearly gives every other state a direct

interest in the extent to which a sister state may discriminate in

voter registration.

6

the United States to vote because of race or color. Con-

gress is given power by section 2 of the Fifteenth Amend-

ment to enforce its provisions by appropriate legislation,

While power to set voting qualifications rests with the

states, that power is plainly limited by the guaranties of

the Fifteenth Amendment as well, also, as of the Equal

Protection clause of the Fourteenth Amendment. Quali-

fications used to violate these guaranties have been con-

sistently rejected by this Court.

The Voting Rights Act of 1965 is a valid exercise by

Congress of its power to enact appropriate legislation to

enforce the provisions of the Fifteenth Amendment.

The appropriateness of this Act can be seen by reference

to the long histury that preceded it and the peculiar

problems that it was designed to overcome.

First, the evidence is overwhelming that in certain

states there has been and still is widespread, indeed almost

universal, calculated denial of Negro voting rights.

Second, the disenfranchisement has been accomplished

by use—or rather misuse—of literacy and other tests and

devices by local registrars. Such tests and devices (which

would ordinarily be legal if equitably and fairly applied

to Negroes and whites alike) provide the pretext for re-

jecting Negroes while registering whites.

Third, prior voting-rights legislation, providing mainly

for reinforced judicial, case-by-case remedies, has simply

been inadequate to correct the situation.

Faced with this history, Congress was compelled to fash-

ion legislation which would provide for the suspension of

tests and devices in those few states where they were being

used overtly to disenfranchise Negroes. The Voting Rights

Act of 1965 accomplishes this result on a rational basis.

There is precedent for legislation, such as the Act, which

uproots otherwise proper practices that have become ‘*in-

fected with abuse,’’ instead of merely attempting to erase

7

their improper features. In the present case, years of

experience, and volumes of testimony and evidence, indi-

cated the impossibility of securing Negro voting rights in

certain states without suspending for a period the tests and

devices being used to disenfranchise Negroes, That sach

tests and devices are legal if uniformly administered does

not prevent Congress from facing up to their systematically

illegal use in some states—and from acting realistically in

those states.

The Voting Rights Act of 1965 provides ample safe-

guards for exempting states and localities with literacy and

like tests which are not administered so as to offend the

Fifteenth Amendment. The Act is not a bill of attainder, an

ex-post-facto law, or other inequitable type of law.

In the light of the facts and circumstances before Con-

gress, it is difficult to conceive of much different—cer-

tainly no less encompassing—legislation which would have

accomplished Congress’s valid aims. If South Carolina’s

contentions were to prevail, Congress would be placed in

the position of being impotent to enforce the guaranties

of the Fourteenth and Fifteenth Amendments—a_posi-

tion which the states, no less than the federal government,

would find intolerable.

Argument.

I. Concress HAs Power To Enact APPROPRIATE LEGISLATION

PRECLUDING THE States FROM DENyING THE RIGHT TO

Vore oy THE Basis or Couor.

A. Although a State has Power to Determine the Qualifica-

tions for Voting, Such Power may Not be Used to Vio-

late the Fourteenth and Fifteenth Amendments.

The Fifteenth Amendment provides that no state shall

have power to deny or abridge the rights of citizens of

the United States to vote because of race orcolor. A state’s

-the Equal Protection clause of the Fourteenth Amendment.

8

power to determine qualifications for voting" is not abso-

lute, but is limited by the Fifteenth Amendment as well as by

Thus Delaware’s early attempt to restrict the franchise to

whites fell before the Fifteenth Amendment,’ as did ** grand-

father clauses’? in Oklahoma* and Maryland.‘ Attempts

to make race a qualification for voting in primary elections

have been struck down under the Fourteenth and Fifteenth

Amendments. Smith v. Allwright, 321 U.S. 649. Nixon

vy. Condon, 286 U.S. 73. Nixon v. Herndon, 273 US. 536.

« [TJhe right of suffrage .. . is subject to the imposi-

ten of state standards which are not discriminatory and

which do not contravene any restriction that Congress, act-

ing pursuant to its constitutional powers, has imposed.”

Lassiter v. Northampton County Board of Elections, 360

U.S. 45, 51.

Literacy tests and similar requirements are not exempt

from the Fifteenth Amendment. In Lassiter v. Northamp-

ton County Board of Elections, supra, where a North

Carolina literacy test was sustained against the conten-

tion that ‘fon its face’’ it violated the Fifteenth Amend-

ment, the Court stated that ‘ta literacy test, fair on its

face, may be employed to perpetuate that discrimination

which the Fifteenth Amendment was designed to uproot.”

Id. at 53. The Court, which in 1949 affirmed a decision

annulling Alabama’s literacy test on the ground that it

was ‘‘merely a device to make racial discrimination easy,’”

in 1965 voided one of Louisiana’s literacy tests. Louisiana

. United States, 380 U.S, 140.

TUS . Const. art. 1, $ 2; Amendments } 3 XVI.

2 Neal vy. Delaware, 103 U.S. 370.

3 Guinn v. United States, 238 U.S. 347.

4 Myers v. Anderson, 238 U.S. 368.

5 Ibid.: see Schnell vy. Davis, 336 U.S, 933, affirming 81 F. Supp.

872 (S.D. Ala. 1949).

9

As these cases have made clear, the States’ right to set

voting qualifications, exercised ‘wholly within the domain

of state interest . . . is insulated from federal judicial

review. But such insulation is not carried over when state

power is used as an instrument for cirenmventing a fed-

erally protected right.’’ Gomillion y. Lightfoot, 364 U.S.

339, 347. Clearly, then, the States, in exercising their

power to determine the qualifications of their voters, may

not use otherwise legitimate tests to deprive certain of

their citizens of the right to vote.

B. Congress has the Power to Enforce a Negro Citizen's

Constitutional Voting Rights by ‘* Appropriate Legisla-

tion,”

The last sections of the Fourteenth and Fifteenth Amend-

ments give Congress the power to enforce each of these

articles by ‘‘appropriate legislation.” This language was

clearly meant to enlarge the power of Congress and to

provide for congressional enforcement of the substantive

constitutional rights. Ex parte Virginia, 100 US. 339,

349, Congress's broad powers to enact legislation designed

to prevent the denial of the right to vote because of race

or color have been sustained in a number of cases. United

States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963) ;

aff'd, 380 U.S. 145. See United States v. Manning, 215

F. Supp. 272, 288, n. 38 (W.D. La. 1963); Larche vy. Han-

nah, 177 F. Supp. 816, 821 (W.D. La. 1959); aff'd, 363

US. 420. The Civil Rights Acts of 1957* and 19607 were

upheld,

*71 Stat. 634 (1957), 42 U.S.C. $$ 1971, 1975-1975e, 1995 (1964).

The constitutionality of the Aet w 8 upheld by the Court in United

States v. Thomas, 362 U.S. 58; United States y. Raines, 362 U.S.

\V; Larche v. Hannah, 363 US. 420.

"74 Stat. 86 (1960), 42 U.S.C. §§ 1971(¢), (e), 1974-1974e,

IWdd(h) (1964). The constitutionality of this Act was upheld by

c

—_ SERRA SM NOSIS IRI LING SOAR T MTOM

10

This Court has defined the scope of congressional power

as follows:

‘‘Whatever legislation is appropriate, that is,

adapted to carry out the objects the amendments have

in view, whatever tends to enforce submission to the

prohibitions they contain, and to secure to all persons

the enjoyment of perfect equality of civil rights and

the equal protection of the laws against State denial or

invasion, if not prohibited, is brought within the domain

of congressional power.’’ Ex parte Virginia, 100 US.

339, 345-346.

In construing the powers of Congress under the analogous

‘‘necessary and proper’’ clause* the Court has recog-

nized that Congress must necessarily have considerable

flexibility in the selection of appropriate means. See

Katzenbach v. McClung, 379 U.S. 294; Heart of Atlanta

Motel, Inc., v. United States, 379 U.S. 241; M’Culloch v.

State of Maryland, 4 Wheat. 316, 420 (1819).

In the present instance Congress has fashioned reason-

able and practical means for dealing with longstanding

methods employed by certain states to deny Negroes the

right to vote, based on misuse of literacy tests and like

devices. To understand the appropriateness of Congress’s

action it is necessary to examine into the history of these

abuses and the circumstances with which Congress was

confronted. To that history and to those circumstances

we now turn.

the Court in Louisiana v. United States, 380 U.S, 145; United States

v. Mississippi, 380 U.S. 128; Alabama v. United States, 371 US, 37

(per curiam).

8 U.S. Const. art. I, § 8.

# ’ nongiae

11

II. Coneress Reasonasty Determinep on THE Basis or

Ovr8WHELMING Evipence tHat Negrors In SEVERAL

SraTes AND PorricaL Suspivisions WERE BEING SysTem-

ATICALLY DEPRIVED oF THE RIGHT To VorE, AND THAT

Literacy aND OTHER Tests anv Devices WERE THE CHIEF

Means BEING Usep To AccompLisH THAT Resvtr.

Literacy, interpretation and like examinations as a quali-

fication for voting first made their appearance in the South-

ern states in the 1890’s with the purpose, usually explicitly

admitted in legislative debate, of disenfranchising the

Negro so far as possible.' Of Louisiana’s tests a federal

District Court recently said:

‘‘These are rooted in the State’s historic policy and

the dominant white citizens’ firm determination to

maintain white supremacy in state and local govern-

ment by denying to Negroes the right to vote.’”’ United

States v. Louisiana, 225 F. Supp. 353, 363 (E.D. La.

1963); aff’d, 380 U.S. 145.

The use of the subjective nature of literacy and lixe

tests as a means to bar Negroes from voting has been the

most durable of a long series of schemes to deprive colored

citizens of their Fifteenth Amendment rights. See

United States v. Reese, 92 U.S. 214; Ex parte Yarbrough,

110 U.S. 651; through the ‘“‘grandfather clause’? cases,

Guinn v. United States, 238 U.S. 347; Myers v. Anderson,

238 U.S. 368; and the ‘‘white primary”’ cases, Nixon v,

Herndon, 273 US. 536; Nixon v. Condon, 286 US. 73;

Smith v. Allwright, 321 U.S. 649; Terry v. Adams, 345 U.S.

‘For the history of the Louisiana voting Gualification tests, and

those of other states in general, see Judge Wisdom’s careful study

in United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963) ;

aff'd, 380 U.S. 145. See also Cox, “‘Constitutionality of the Pro-

pose! Voting Rights Act of 1965,’’ 3 Houston L. Rev. (1965), 2-3.

— PASSAT OE NE LER EE RE CRE IO

12

461; the resort to procedural hurdles, Lane v. Wilson, 307

U.S. 268; to racial gerrymandering, Gomillion v. Lightfoot,

364 U.S. 339; to improper challenges, United States y,

Thomas, 362 U.S. 58; and, finally, the discriminatory use

of tests, Schnell v. Davis, 336 U.S. 933; Alabama v. United

States, 371 U.S. 37; Louisiana v. United States, 380 US.

145.

Aware of this history, Congress established, in 1957, the

United States Civil Rights Commission, with broad investi-

gative powers, and directed it to study the extent and

circumstances of voting discrimination.

The Commission’s studies, taken in conjunction with

evidence appearing in litigation, and other reports, con-

firmed the existence of a widespread and determined ef-

fort in certain states to keep Negroes from registering and

voting. The evidence of this was overwhelming.’ In

1961 the Civil Rights Commission concluded that in at least

one hundred and twenty-nine counties in ten states, where

Negroes constitute more than 5 per cent of the population

twenty-one years old and over, less than 10 per cent of

those ostensibly eligible were in fact registered to vote.

In twenty-three of these counties in five states, indeed, no

Negroes at all were registered. The inference was un-

avoidable that some affirmative deterrent was at work,

especially in those counties where none were registered.

The Commission also found that literacy and similar

tests were the primary means used to prevent Negroes

from voting. In 1959 it reported that—

‘In its investigations, hearings, and studies, the

Commission has seen that complex voter qualification

2 See I 1961 United States Commission on Civil Rights Report

especially, and also the appendices to H.R. Rep. No. 439, 89th

Cong. Ist Sess. (1965).

3] 1961 United States Commission on Civil Rights Report, 111-

112.

13

tests, including tests of literacy, edueation, and ‘in-

terpretation’ have been used and may readily be used

arbitrarily to deny the right to vote to citizens of the

United States. Most denials of the right to vote are

in fact accomplished through the discriminatory ap-

plication and administration of such State laws. The

difficulty of proving discrimination in any particular

case is considerable. It appears to be impossible to

enforce an impartial administration of the literacy

tests now in force in some States, for where there is

a will to discriminate, these tests provide the way.’’*

(Emphasis added.)

The subjective nature of many of these examinations

constitutes their chief value to those who wish to exclude

Negroes from the rolls. Wide discretion is often vested

in the registrars who evaluate the test results. Review

of their determinations is almost impossible. In hearings

before the Senate Subcommittee on Constitutional Rights

it was testified that ‘“‘Applicants ... might have to write

long or short statements, interpret complex or simple test

materials—all to the satisfaction of the examiner. In the

last the opportunities for discrimination are endless . . .’

Thus, in a county in one state, for example, a federal dis-

trict judge found that six Negro applicants (two with

master’s degrees, three with bachelor’s degrees and one

with a year of college training) were denied the right to

Vote on the specious ground that they could not read

*1959 Report, by the United States Commission on Civil Rights:

Proposal for a Constitutional Amendment to Establish Universal

Suffrage, 144-145.

* Hearings before the Subcommitiee on Constitutional Rights of

the Committee on the Judiciary, United States Senate, 87th Cong.

“d Sess., on S. 480, S. 2750 and S$ “979, pp. 261-262.

ASG al eb at Me Rae Tea aal eee? f RE PIN.

aD ad eabiyat pit Yer: pe :

—

14

intelligibly or write sections of the state constitution’

White applicants, however, have been assisted in completing

the forms, and sometimes they have been registered without

taking any test.’

Also, the Courts have found discrimination by use of

qualifying examinations for voting. In United States y,

Alabama, 192 F. Supp. 677 (M.D. Ala. 1961); aff’d, 371

U.S. 37, the District Court found that ‘‘The double stand-

ard in receiving and processing applications of Negroes

and whites has been applied by the Board of Registrars

during the past five years in at least six different phases

of the registration processes.’’ 192 F. Supp. at 679-680.

The decision is virtually a textbook of methods of depriv-

’ ing Negroes of their voting rights, without appearing to

do so.®

Thus Congress was plainly entitled to conclude, as stated

in the Report of the House Committee on the Judiciary:

‘‘The facts are clear. In widespread areas of sev-

eral states tests and devices, as defined in this bill,

6 Ibid.

7 Ibid. 261-262. °

8 The six phases alluded to were (1) the order of accepting

applicants (whites were chosen first, no matter when they arrived),

(2) the assistance rendered to white applicants (certain whites had

been given assistance by the registrars, whereas Negroes of high-

school and college education were rejected repeatedly for minor

errors, and had not been given any aid); (3) the writing test

(Negroes invariably wre required to copy a provision of the Fed-

eral Constitution—often article II; whites were given an easier

passage, or none at all) ; (4) grading of applications of Negroes who

were rejected because of formal or inconsequential errors, while no

whites were rejected for the same errors; (5) the failure to mail

registration certificates to Negro applicants (thus the Negroes had

no proof of their right to vote, but, if it came to court, the fact

of registration would suddenly be ‘*diseovered’’—see Mitchell ¥.

Wright, 69 F. Supp. 698 (M.D. Ala. 1947)) ; (6) the failure to

notify rejected applicants (a practice operating only as to Negroes,

hampering their reapplication).

15

have been effectively and repeatedly used to deny or

abridge the right of Negroes to vote."

The finding that Negroes in several states and political

subdivisions were systematically deprived of the right to

vote, and that literacy and like tests and devices were the

principal means to reach this result, was not only proper,

but inescapable.

III. Coneress Reasonasiy ConcLupep In THE LIGHT OF

Extensive EXperteNce THAT Case-By-Casz ENrorcEMENT

or Votinc RicguTs uNpER Previous Lercis.aTion COULD

Nor Cope WITH THE ScaLE anp DIMENSION oF THE PROB-

LEM IN Certain Srates.

A, Prior Voting Rights Legislation was Limited in Scope

and Required Case-by-Case Enforcement.

The previous Voting Rights Acts of 1957, 1960 and 1964

enlarged and strengthened the legal remedies available to

help individuals illegally denied the right to vote.

Thus the 1957 Act provided for judicial enforcement at

the suit of the Attorney General of the right to vote. But

the Civil Rights Commission found that ‘‘the results of

the Act in the field of voting seem disappointing.’’ In 1959

the Commission noted that discriminatory denials of the

vote were serious and widespread. The Civil Rights Di-

vision had instituted three actions under the new section

1971(¢), and had not been successful in any.’ Partially as

4 result of this pessimistic report, the 1960 Act was

passed,

*HLR. Rep. No. 439, 89th Cong. Ist Sess. 12-13.

‘I 1961 United States Commission on Civil Rights Report, 75.

16

Title III of the 1960 Act declared voting records public

and required their preservation for a period of twenty.

two months following any general or special election. The

Attorney General was given the power to secure such ree-

ords. This provision resulted in complex litigation. See

Alabama y. Rogers, 187 F. Supp. 848 (M.D. Ala. 1960);

aff’d, sub nom. Dinkens v. Attorney General, 285 F. 2d 430

(Sth Cir. 1961); cert. den. 366 U.S. 913; United States y.

Association of Citizens Councils of Louisiana, 187 F. Supp.

846 (W.D. La. 1960). Title VI, providing for federal

voting referees, was a significant innovation, but a long

way from securing the right to vote to Negroes. The ma-

chinery for appointing a referee under this title was

complicated and time-consuming.

First, the Government had to file a suit under section

1971(a) and (ce) and obtain a Court order to the effect

that ‘‘a person has been deprived on account of race or

color’’ of the right to vote. Then the Court must find that

‘such deprivation was or is pursuant to a pattern or

practice.” For at least a year after such a finding, any

person in the area of the race found to be discriminated

against may apply for an order entitling him to vote. To

get such an order he must prove that (a) he is qualified

under state law to vote, and (b) he has since such finding

by a Court been (1) deprived of or denied the opportunity

to register to vote or otherwise to qualify to vote, or (2)

found not to be qualified to vote by any person acting under

color of law. After these findings are made, the Court

may hear the applicant himself, or appoint referees, who

are empowered to act in a fashion similar to a master

appointed under Rule 53(¢) of the Federal Rules of Civil

Procedure. The time-consuming nature of such a process

and the difficulties of proof are apparent.

/ Thus the Civil Rights Commission concluded that ‘* These

successes (under the 1957 and 1960 Acts), however, do not

17

indicate that current legislation, even with continued vig-

orous enforcement, affords a prompt solution to the exist-

ence of discriminatory denials of the right to vote on

account of race or color. The Government, under present |

laws, must still proceed slowly—suit by suit, county by

county... There is no widespread remedy to meet what

is still widespread discrimination.’’2

Title I of the 1964 Civil Rights Act expedited suits by

prohibiting rejection of applications for immaterial error

in filling out forms. It also barred the use of oral literacy

tests, and established a rebuttable presumption of literacy

flowing from completion of six grades in any school ree-

ognized by the state.

But while of value, the 1964 legislation still required

judicial enforcement by the traditional case-by-case ap-

proach.

B. The Case-by-Case Approach Proved to be Entirely

inadequate to Deal with the Magnitude of the Problem.

Congress, upon examination of results under the previous

Voting Rights Acts, reasonably concluded that “*experience

has shown that the case-by-case approach will not solve

the voting discrimination problem.’’* The sheer magnitude

of the problem defied a case-by-case solution,

The ineffectiveness of the litigative approach can be seen

in the history of voting suits, particularly in the Fifth Cir-

cuit The many opportunities for delay available in any

voting-rights lawsuit have all been employed at one point

or another by Courts not entirely sympathetic to the vin-

dication of Negroes’ rights. For example, the doctrine of

abstention has been used extensively. This doctrine post-

*1 1961 United States Commission on Civil Rights Report, 100.

*Sen. Rep. No. 162, part 2, 89th Cong. p. 6.

‘See generally, 73 Yale L.J. 90 (1963).

18

pones litigation in a three-judge District Court until po-

tentially controlling questions of state law have been

answered by the state judiciary. Several years may be

required to obtain a conclusive ruling if the issue is taken

to the state Supreme Court. See Bailey v. Patterson, 199

F. Supp. 595 (S.D. Miss. 1961) ; vacated per curiam, 369

U.S. 31 (1962) (dealing with a nonvoting civil-rights issue),

and Lassiter v. Taylor, 152 F. Supp. 295 (E.D. N.C. 1957),

where the District Court ordered abstention in order that

the state Court might consider the challenged statute (a

literacy test) ‘‘in the light of the provisions of the State

Constitution.’? 152 F. Supp. at 298. See also 73 Harv.

L. Rev. 1358, 1364-1365.

Substantial opportunities for delay arise from post-

ponements prior to and during the trial, and from the

district judge’s control over the period of time between

completion of trial and hearing and rendering of his de-

cision. See Anderson v. City of Albany (No. 20501, oth

Cir. July 26, 1963), in which the judge did not render a

decision in two of the cases until nine months after the

consolidated hearings. Also see United States v. Lyni,

301 F. 2d 818, 821 (5th Cir. 1962); In re Coleman, 208

F. Supp. 199 (S.D. Miss. 1962) ; aff’d, per curiam, Cole-

man v. Kennedy, 313 F. 2d 867 (5th Cir. 1963) ; cert. den.

373 U.S. 950 (1963) (a demand stalled for more than a year

by judicial delays and stays); and see cases cited in 73

Yale L.J. 90, 96.

Delays of the sort mentioned above are compounded

when the lower Court errs, requiring appeal, reversal and

remand for retrial. Perhaps the most striking example of

such ‘‘error’? may be found in a school segregation case,

Stell v. Savannah-Chatham County Board of Education,

318 F. 2d 425 (5th Cir. 1963), nine years after Brown v.

Board of Education of Topeka, 347 U.S. 483. Here the

district judge denied the requested injunctive relief ‘‘solely

19

on the basis’’ of a factual finding that, although segrega-

tion existed, integration was injurious to members of both

races. J18 F. 2d at 427. See also Kennedy v. Bruce, 298

F. 2d 860 (5th Cir. 1962), which was a suit to require the

production of county voting records. There the judge ren-

dered decisions, without opinion, denying the request about

sixteen months after it was made. 298 F. 2d at 862. For

a recent case in which the findings would seem to have been

contradicted by the facts, see United States vy. Duke, 332

F. 2d 759 (1964).

And even after the decision of the District Court has

been reversed and remanded, it has still other means of

slowing down the redress of constitutional wrongs. Four

stay orders were used in Meredith v. Fair, 7 Race Rel. L.

Rep. 741, 742-745 (5th Cir. July-Angust, i962). The district

judge may extend the period prior to framing an injunction

to several months, rather than the several weeks normally

required. Or the district judge may enter a decree ‘‘mis-

interpreting’ the opinion from the Court of Appeals, and

delay full relief while modification is sought. The suit

may ultimately be abandoned through sheer fatigue of the

petitioners. See Meredith v. Fair, supra, and comments

in 73 Yale L.J. 90, 98.

The failure of case-by-case enforcement under prior

voting legislation to bring about substantial improvement

in the problem as a whole has been shown by statistical

results. For example, in Mississippi in ten years the per-

centage of voting-age Negroes who were on the rolls had

crawled from 4.4 per cent to 6.4 per cent (and from 1961 to

1964, the period of greatest litigative activity, it had risen

from 6.2 per cent to 6.4 per cent). In Louisiana the regis-

tration of Negroes appears to have increased by only one

tenth of 1 per cent between 1958 and 1965.5

Senate Hearings, Report No. 162, part 2, p. 6. See Christopher,

“The Constitutionality of the Voting Rights Act of 1965,’’ 18

Stanford L. Rev. 7-9.

20

Thus Congress’s decision that a more comprehensive

approach was needed if Negroes were ever to be given their

rights under the Fourteenth and Fifteenth Amendments

was not only proper but inescapable.

IV. In vue Licut or THE MaGniTuDE AND NATURE OF THE

PROBLEM, AND ITS F'alLURE TO Yuietp To Past Case&-By-Case

PRocEDURES, THE COMPREHENSIVE APPROACH OF THE Civin

Rieuts Act or 1965 1s A REASONABLE AND APPROPRIATE

Exercise oF ConGRESSIONAL PowER.

A. The Presumption Created by Section 4(b) of the Voting

Rights Act of 1965 is Reasonable.

The main feature of the Voting Rights Act of 1965 is to

substitute a rebuttable administrative presumption of dis-

crimination in an entire state or subdivision thereof for

proof of the same case by case (§ 4(b)). The presump-

tion then results in suspension of all literacy and like tests

and devices, and permits federal voting examiners to

register voters if local registrars continue to discriminate.

The rebuttable presumption arises wherever fewer than 50

per cent of the population twenty-one years of age and

older has not registered or voted in the 1964 presidential

election, and wherever there is in effect a ‘‘test or device.’

Congress had ample evidence justifying the legislative

formula that invokes this presumption. The evidence in-

dicated that voting discrimination was widespread in all

but one of the seven states which would fall within the

formula. Judicial findings of violations of the Fifteenth

Amendment through the use of tests and devices in most

of the included states and subdivisions were buttressed by

findings of a ‘‘pattern or practice’ of discrimination. No

voting discrimination case initiated by the Justice De-

1 Section 4(b).

21

partment within the included states and subdivisions had

been concluded without a finding of discrimination. In

the counties in Alabama, Mississippi and Louisiana where

suits had been instituted, a pattern emerged of a substantial

non-white voting-age population, a high percentage of white

registration, a very low percentage of non-white registra-

tion, and a low voter turnout in the presidential election of

1964. In the six southern states which would be included,

a general public policy of racial segregation was evidenced

by state statutes regarding travel, education and hospital

facilities. Only two states, besides those six, having ‘‘tests

and devices’’ also had laws indicating policies of racial

discrimination. In one of these, North Carolina, thirty-four

counties would apparently be covered by the formula, and

in the other, Delaware, recent legislation reflects abandon-

ment of legalized discrimination.

On the other hand, in most states with tests or devices

where more than 50 per cent of the voting-age population

voted in 1964, there are statutes affirmatively outlawing

racial discrimination. Congress justifiably concluded that,

since those states expressed a public policy against racial

discrimination, it was reasonable to assume that voting

discrimination on account of race did not exist in quantity.

There are a few areas, of course, covered by the mechani-

cal formula of section 4 which plainly do not discriminate

(for example, Aroostook County, Maine), but they are

afforded the opportunity to exempt themselves by Court

action,” and, indeed, the Attorney General is dirceted to

consent to entry of a judgment exempting such a state or

locality (§ 4(a), (d)).

In view of the evidence before it, Congress could appro-

priately find, as it did, that, where these two factors (less

than 50 per cent registered or voting, and a literacy or like

*HLR. Rep. No. 439, 89th Cong. p. 14.

2 &

“A se

ray —

—y

test) are present, there is good reason to presume, subject

to rebuttal, that racial discrimination exists.®

Inevitably, a mechanical formula of this nature may fall

short of perfection in a minority of the circumstances to

which it applies. Some areas that discriminate will escape,

A few that do not may conceivably be put to the trouble

of legal proceedings. But there is a rational connection

between the presumption and the ‘‘triggering’’ facts (viz,

less than 50-per-cent registration); means for avoiding

the presumption are provided; and years of experience

demonstrate that only legislation of this scope can deal

realistically with the problem.

Moreover, in analyzing the reasonableness of the pre-

sumption, one must weigh the burden that it imposes against

the greater right that is at stake. The most that can happen

to a state is to lose, temporarily, its right to establish tests

and devices as a qualification to vote. In return for this,

the right of its citizens to vote without discrimination is

vindicated.

It should be repeated that the Act’s restrictions do not

apply if a state or political subdivision (although other-

wise within the formula) can show that it has not dis-

criminated against Negro voting applicants in the last five

years. The burden is a reasonable one; it requires a

showing that, for the preceding five years, no test or device

has been used to deny the right to vote on account of race

or color, and that any incidents of discrimination have been

few in number, promptly corrected, and are unlikely to

recur in the future.* The burden of proof falls on the

3 H.R. Rep. No. 439, 89th Cong. Ist Sess. 13. Sen. Rep. No. 162,

part 3, p. 13.

4 Sections 4(a) and (d). The fact that no declaratory judg-

ment may be obtained if, within the last five years, a court has

entere’ a judgment holding that the state or subdivision has en-

gaged in the discriminatory use of tests simply is a form of cel-

23

proper party, inasmuch as the greatest part of the rele-

vant evidence is in the hands of the states or subdivisions

involved.

Clearly, the presumption under section 4 of the Act is

sufficiently reasonable in the light of past experience and

the problem at hand to fall within the authority granted

Congress to enact ‘‘appropriate legislation’’ to enforce the

provisions of the Fourteenth and Fifteenth Amendments.

B. There is Precedent for Suspending Otherwise Proper

Tests and Devices where they have Become Infected

with Abuse.

The suspension for a period of time of otherwise proper

literacy and like tests and devices in states and subdivisions

where they are being used for illegal purposes does not

exceed Congress’s power. There is precedent for legisla-

tio which uproots otherwise legal practices that have

become so infected with abuse that it is impractical simply

to isolate and erase their improper features.

Thus, for some years the National Labor Relations Board

has disestablished company unions instead of merely en-

joing company domination or interference. This prac-

tice was upheld in National Labor Relations Board v. New-

port News Shipbuilding & Dry Dock Co., 308 U.S. 241, 250,

per Roberts, J.:

‘As pointed out in National Labor Relations Board

v. Pennsylvania Greyhound Lines, 303 U. S. 261, dis-

establishment of a bargaining unit previously dom-

inated by the employer may be the only effective way

of wiping the slate clean and affording the employes

an opportunity to start afresh in organizing for the

adjustment of their relations with the employer.”’

lateral estoppel; the political entity cannot now claim that it has

not done what it has already been found to have done.

i

24

In both situations the interest of innocent persons may

be subordinated for a time to the securing of the larger

interest—there the interest of employees who might wish

to support the union theretofore dominated was subor-

dinated; here that of the literate voters who may object to

possibly illiterate voters sharing in the suffrage. .

In James Everard’s Breweries v. Day, 265 U.S. 54%,

Congress was permitted to prohibit the prescription of

malt liquors for medical purposes, and was not limited to

regulating the misuse of the prescriptions. The Court

said, at pages 558-559:

‘« |, Congress is not limited to such measures as

are indispensably necessary to give effect to its express

powers, but in the exercise of its discretion as to the

means of carrying them into execution may adopt any

means, appearing to it most eligible and appropriate,

which are adapted to the end to be accomplished . ..”

In the last analysis, the appropriateness of any legisla-

tion depends on the peculiar facts and circumstances with

which Congress must deal. Seldom has Congress had a

longer history or more conclusive documentation upon

which to base its action. The failure of earlier case-by-case

attempts, and the fact that so little has been accomplished

over so long a period, underscored the necessity for the

more comprehensive action which Congress finally took.

(Compare Chastleton Corp. v. Sinclair, 264 U.S. 543, point:

ing out the decisive effect of new, or newly disclosed,

facts on an earlier constitutional decision.)

Whatever the Court’s judgment might have been as to

the appropriateness of the Act had it been enacted, say,

in 1871, there can be little doubt as to its appropriateness

nearly a century later in the light of intervening exper-

ence and the facts and evidence at hand.

e

a i

25

V. Tue Act ts Nor a Br or Arrarnper, Ex-Post-Facro

Law, on OTHER TyPE or UNREASONABLE oR ImpRorER Legis-

LATION.

Arguments that the Act is a bill of attainder, or an ex

post facto law, and that it infringes upon the states’ rights

to equal treatment, deserve summary treatment. There is

nothing in the evils against which the bill of attainder and

ex post facto law clause’ are directed, or in the cases

which have construed it, to indicate that the protection

was designed to apply to the states. As to the states’

rights to equal treatment, Coyle v. Smith, 221 US. 599,

makes clear that this ‘‘equal footing’’ doctrine applies

only to the basis on which a state is admitted to the Union.

Even if states were entitled to protection against bills

of attainder and ex post facto laws, the Act does not fall

into either category, for it imposes no punishment. Cf.

Cummings v. State of Missouri, 4 Wall. 277. A presump-

tion general in its terms, founded on substantial experi-

ence, and subject to dissolution in a judicial proceeding,

is in no event a bill of attainder. It is well established that

even in criminal cases the burden of proving certain facts

can be shifted to the defendant without violating his con-

stitutional rights. Casey v. United States, 276 U.S. 413,

418. Morrison v. California, 291 U.S. 82, 88. Cases vy.

United States, 131 F. 2d 916 (1st Cir. 1942) ; cert. den. sub

nom. Velazquez v. United States, 319 U.S. 770; reh. den.,

324 U.S. 889.

Hawker v. New York, 170 U.S. 189 (1898), supports the

authority of Congress to impose present sanctions on

the basis of a past judicial finding of illegal conduct.

There a New York statute made a criminal conviction, even

prior to passage of the law, conclusive evidence of unfit-

ness to serve as a doctor; here the suspension of literacy

"US. Const. art. I, § 9.

= rrr eae aaa—aE———EEI

26

tests in section 4 may be affirmed on the basis of a judicial

finding of illegal voting dicrimination made prior to as well

as after enactment of the Act.

Arguments that the Act operates ‘tretroactively”’ or is

based on a “legislative trial’ are frivolous: all regulatory

legislation must be based on legislative findings as to

antecedent facts. Such legislation has been consistently

upheld where reasonable and where there is **some rational

connection between the fact proved and the ultimate fac:

presumed, and... the inference of one fact from proof of

another . . . [is not] so unreasonable as to be a purely

arbitrary mandate." Mobile, Jackson & Kansas City Rai

road Co. v. Turnipseed, 219 U.S. 35, 48. Cf. Lewis ¥.

Fidelity & Deposit Co. of Maryland, 292 U.S. 959, 971,

Reynolds v. United States, 292 U.S. 448, 449. Porter y.

Senderowiéz. 108 F. 2d 435, 440 (3d Cir, 1946); cert. den,

sub nom. Senderowitz v. Fleming, 330 U.S. S48. Dunn y.

Grisham, 157 So. 2d 766, 769-770 (1963) (S. Ct. Miss,),

Black, Constitutional Prohibitions, § 179 (1887 ed.). See

also Guaranty Trust Co. v. Henwood, 307 U.S. 247; Yor-

man vy. Baltimore & Ohio Railroad Co., 294 U.S. 240.

Admittedly the Act establishes a presumption which, like

all legislative presumptions, has a quality of arbitrariness

The Legislature has to draw lines at some point, and one

can always argue in a given instance that the line should

have been drawn at some slightly different point. How

ever, so long as the legislation is reasonable and rational,

it is for the Legislature, not the Court, to draw the lines.

Given the facts and circumstances of the situation and

the widespread refusal of certain states to abide by the

Fourteenth and Fifteenth Amendments, Congress has acted

reasonably and disereetly, and in a manner consistent with

a due regard for the rights of all the states.

27

Conclusion.

The right of all United States citizens to vote on equal

terms, without reference to their race or color, is such

an ingrained, accepted part of the system of values under

which modern Americans live that it is incomprehensible,

in the year 1965, to realize that in a few states this right is

still not acknowledged. The Voting Rights Act of 1965

is a reasonable effort by Congress, after years of frustra-

tion and failure, to carry out the clear mandate of the

Fifteenth Amendment. We respectfully urge the Court to

uphold the constitutionality of said Act.

Respectfully submitted,

EDWARD W. BROOKE,

Attorney General of Massachusetts,

LEVIN H. CAMPBELL,

Assistant Attorney General of Masssachusetts,

On behalf of All Attorneys General join-

ing herein.