Amicus Curiae Brief — South Carolina v. Katzenbach

SUBJECT INDEX

Page

Interest of amicus curiae 22... cccceeeeeeeees 1

yp cetace ON RORE R e 7

Congress has the power under the Constitution to

enact the Voting Rights Act of 1965...

II.

The Voting Rights Act of 1965 is appropriate

legislation under the Fifteenth Amendment and

is not a bill of attainder, ex post facto law, nor a

violation of due process o....e.cceeccceeccseeeeoe-

(a) The Voting Rights Act of 1965 is mani-

festly appropriate legislation under the

Fifteenth Amendment ............... ‘pihidilnisitiiie

(b) Sections 4(a) and 4(b) are not a bill of

attainder, nor ex post facto law, nor do they

WEOMRUT GINS UTI ec ccitecetsenc

PIU wicitinctuitinin Ula e e P

Appendix A. 1960 Study of Voting Behavior of

Negro Migrants from the South App. p.

1]

11

12

15

ii.

TABLE OF AUTHORITIES CITED

% Cases Page

Bowles v. Willingham, 321 U.S. 503 .....-.-----------2+ 14

Carrington v. Rash, 380 80 OS Serre 9

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 ....... 13

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 11

Everard’s Breweries v. Day, 265 U.S. 545 .............. 11

Flemming v. Nestor, 363 U.S. 603 ....---------1-+11t- 13

Garland, Ex parte, 71 U.S. (4 Wall.) 333 -............. 13

Gomillion v. Lightfoot, 364 U.S. 339 -.....------.-----++ 9

Guinn v. United States, 238 U.S. 347 ............ 9, 10

Hannah v. Larche, 363 U.S. 420 ......--------------02 8

Heart of Altanta Motel Inc. v. United States, 379

3h. Sa. | Peace neat oe 8, 11

Katzenbach v. McClung, 379 U.S. 294 ....------.-----+ 11

Lane v. Wilson, 307 U.S. 268 ......-.----------e0-ss-eeseeeee 9

Lassiter v. Northampton Election Bd., 360 U.S. 45

a punieuincilaaceneannaeeainhpeiactoresttionamnetentnertta 9, 10

Louisiana v. United States, 380 U.S. 145 ...........--.- 9

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 .... 7

Neal v. Delaware, 103 U.S. 370 ........-------:+-s:12000 9, 10

People v. Elkus, 59 Cal. App. 396 -...-----------se--e-0 5

Pope v. Williams, 193 U.S. 621 -.....------ s-+-s--seeseeseee 9

Regan v. King, 49 F. Supp. 223 -.....-----------:---se 5

Spier v. Baker, 120 Cal. 370 .....----------+----s-sse-eeesceo 5

United States v. Brown, 381 U.S. 437 ....----------

United States v. Lovett, 328 U.S. 303 ..........--------+

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

United States v. Raines, 362 U.S. 17 ...------.--2--00

Williamson v. Lee Optical Co., 348 U.S. 483

Yakus v. United States, 321 U.S. 414 .......---------

ili.

+4 Miscellaneous Page

Hearings Before Subcommittee No. 5 of the House

Committee on the Judiciary (1965), 89th Cong.,

Ist Sess., Ser. 14 at pp. 24, 26, 27, 29-33 .............. 12

Hearings Before Subcommittee No. 5 of the House

Committee on the Judiciary, 89th Cong., 1st Sess.,

ssattnlarghick, dicen es a OE ta as 5

Hearings on S. 1564, Before Senate Committee on

the Judiciary (1965), 89th Cong., Ist Sess. Pt.

i as TT EE a Me 12

Hearings on S, 1564 Before the Senate Committee

on the Judiciary (1965), 89th Cong., Ist Sess.,

PP ia IN dni rcisecsucesineie. uae 8

Hearings on S. 1564, Before the Committee on the

Judiciary, 89th Congress, 1st Session, pt. 2, pp.

}462-1463 haiti ani tiohetinateaaeitatilae 3

Il Congressional Record, DT ccimeies —

ew York: Harper & Row (1964), The Burden an

the Glory: The Hopes and Purposes of President

Kennedy’s Second and Third Years in Office as

Revealed in his Public Statements and Addresses,

DR a eaictiaiinninmincradlecae ities SUE SS aa

- Statutes

iv.

United States Constitution, Art. II, Sec. 1

United States Constitution, Fifth Amendment ........ 13

United States Constitution, Fifteenth Amendment

at i ccihneneepincoaaane 3, 6, 7, 8, 10, 13, 15

CE cccvencstnucedccssunnesqoorepenvesevaaetersneeenerteenenrennnesennyes 3

Voting Rights Act of 1965, Sec. 4(a) «....-s0i-.--2-- 12, 14

Voting Rights Act of 1965, Sec. Oo ee 12, 14

Textbook

The Federalist No. 57, (Modern Library Ed.), p.

BD on sececeeseccesesevcossevcecsorssensusenensessuscsncensneseseenequssenenenvts 3

ae an Ne ee ee

, ,

IN THE

Supreme Court of the United States

October Term 1965

No. 22, Original

STATE OF SouTH CAROLINA,

Plaintiff,

US.

NICHOLAS DEB. KaTzENBACH, Attorney General of the

United States,

Defendant.

BRIEF OF THE STATE OF CALIFORNIA

AS AMICUS CURIAE.

Interest of Amicus Curiae.

California is submitting a brief amicus curiae in sup-

port of the United States Attorney General because it

is imperative that all legitimate means be adopted to

enhance the right of universal suffrage. For as Presi-

dent Johnson stated when he urged passage of the Vot-

ing Rights Bill:

“In our system, the first right and most vital

of all our rights is the right to vote . . . It is from

the exercise of this right that the guarantee of all

our other rights flow.

Unless the right to vote be secure and unde-

nied, all other rights are insecure and: subject to

denial for all our citizens. The challenge to this

right is a challenge to America itself.’””

‘President Lyndon B. Johnson's message to Congress, March

15, 1965; 111 Cong. Rec. 4927 (daily ed. Mar. 15, 1965).

a

x. oo

e It is a truism that California, as a state of the

Union, has a vital interest in assuring that the voice

which speaks for America is truly representative of all

its people, a representation which cannot be achieved if

there is unjustifiable restriction of suffrage.

But more particularly, California, as a sovereign

state, is concerned with the voting rights of its own

residents. She seeks assurance that no state erect or

maintain barriers which unfairly abridge the right to

vote, for such barriers leave individuals new to Cali-

fornia inexperienced and apathetic in their political par-

ticipation, the most important aspect of which is the

exercise of the vote. Equally, California is anxious that

none of her citizens lose political rights when they emi-

grate, for surely no man should be subjected to the pos-

sibility of a stripping of constitutional guarantees sim-

ply because circumstances lead him to live elsewhere.’

2California cannot limit her concern over suffrage to those

Americans who presently live within her borders. The precepts

of the Constitution and the practical necessities of life do not

permit such a restricted attitude.

Every day brings new citizens to California from other sec-

tions of the nation. For the 5-year period from 1955 to 1960,

2,148,255 residents of other parts of the Union moved to this

state. (U.S. Bureau of Census P.C. (2)-2B). During the year

ending July 1, 1965, California’s population showed an approxi-

mate net increase of 340,000 attributable solely to migration from

within the United States. (Information supplied to our office

by ne Office of Population Studies, California Department of Fi-

nance ).

President Kennedy expressed the necessity of such a national

concern in another context when he spoke at San Diego State

College on June 6, 1963. Given the fundamental importance of the

right to vote, his words have equal meaning here. “. . . American

children today do not yet enjoy equal educational opportunities

for two primary reasons: One is economic and the other is racial.

_. . It does no good, as you in Califoraia know better than any,

to say that that is the business of another state. It is the business

of our country. These young, uneducated boys and girls know no

state boundaries and they come West as well as North and East.

Se ER Re

a

As one of the 21 states with literacy® or other vot-

ing qualification tests,‘ California is concerned that

there be no impropriety in the administration of these

tests, so that no disparaging reflection be cast upon

their use. Congress, however, after extensive hearings,

has found that voting tests are being used to disen-

franchise certain racial groups and economic classes. Its

findings suggest that a fundamental principle of our

nation is being ignored, a principle which James Madi-

son enunciated so well when he discussed the qualifica-

tions of voters in The Federalist. As electors, he said,

the Union should have,

“Not the rich, more than the poor; not the

learned, more than the ignorant; not the haughty

heirs of distinguished names, more than the humble

sons of obscurity and unpropitious fortune. The

electors are to be the great body of the people of

the United States.’”®

They are your citizens as well as citizens of this country.” The

Burden and the Glory: The Hopes and Purposes of President

Kennedy's Second and Third Years in Office as Revealed in his

Public Statements and Addresses. (New York: Harper & Row,

(1964), page 260.)

Conversely, 938,455 Californians between 1955 and 1960 emi-

grated to other regions of the nation, oft-times attributable to

the exigencies of California business and commercial interests.

It cannot be denied that discrimination elsewhere based upon:

race or color bears upon the mobility of California citizens who

participate in California-based industry with interests in other

parts of the country.

*California Constitution. article IT, section 1.

‘[Hearings on S. 1564 Before the Committee on the Judiciary,

89th Cong.. Ist Sess., pt. 2, at 1462-1463].

The Federalist No. 57, p. 371 (Modern Library Ed.).

When Madison contributed to The Federalist, he was con-

cerned solely with the adoption of the Constitution, and thus his

words were directed toward federal elections. But his views are

pertinent and significant today, for since his writing the right of

suffrage has been continually expanded, through amendments

such as the fifteenth and seventeenth. And those amendments

speak in terms of state as well as federal elections.

_

The Voting Rights Act represents the conclusion of

Congress that this principle must be re-affirmed and

that no state frustrate it with sophisticated techniques,

California submits that there was ample evidence before

Congress to warrant this re-affirmation and to pre:

clude its frustration. California therefore supports the

legislation.

In California, Madison's beliefs are reflected in ar-

ticle I, section 1 of the state constitution which pro-

claims:

“Every native citizen of the United States of

America, every person who shall have acquired the

rights of citizenship under and by virtue of the

Treaty of Queretaro, and every naturalized citizen

thereof, who shall have become such 90 days prior

to any election, of the age of 21 years... shall

be entitled to vote at all elections which are now

or may hereafter be authorized by law; . ..

For the past 75 years the thrust of California law at

all levels, from popular referendums to judicial deci-

sions. has been directed toward the advancement of uni-

versal suffrage."

Nevertheless, California believes her efforts may

often be insufficient, for she cannot protect her citizens

®For example, California voters voluntarily removed a fe

striction against “Natives of China” through a constitutional

amendment in 1926. Her legislature has continually sought to

implement equal suffrage through amendments to the California

Ilection Code, Most recently, it passed Election Code section

223, which states that “no county clerk may refuse to deputize

any person to register to vote because of race, creed, color, of

national origin or ancestry.” Previous sections included section

201, where encouragement of registration is declared as the ex-

press intent of the legislature, and where “co-operation of it

terested citizens and organizations” is solicited ; and sections

once they leave the state. And while California can of-

fer to all the opportunity to vote, she cannot easily

instill a desire to exercise this right here in people made

apathetic by unconstitutional disenfranchisement else-

where, Apathy and non-participation, however, are not

the only results of disenfranchisement which concern

California, for the denial of the right to vote may also

produce mistrust and suspicion of elected officials. The

disenfranchised may come to believe their representa-

tives are oblivious to their needs and unaware of their

interests, attitudes which have no place in America."

In preparing this brief, California attempted to gauge

the extent of this apathy by studying the 1960 voting

behavior of Negro migrants from the South. Five

areas of Los Angeles County were chosen from the

I4 areas with the highest concentration of Negroes

according to the 1960 census data. Three of these areas

29000 ff, where penal provisions are directed against individuals

or groups who threaten or intimidate prospective voters. Cali-

fornia courts have long echoed this philosophy (see, for example,

Spier vt. Baker, 120 Cal. 370, 375 (1898) : People v. Elkus, 59

Cal. App. 39, 398 (1922)), and defeated what. few attempts

have been made to limit suffrage. See, for example, Regan v.

King, 49 F. Supp. 223 (1942), where an endeavor to disen-

franchise people of Japanese origin was prevented. It should be

noted that Regan was an action where the defendant-registrar

Was attacked not because he refused to register Japanese-Ameri-

cans, but because he refused to remove those already on the rolls,

Testimony to this effect was presented to Congress during its

deliberations on the Voting Rights Bill, See, for example, the

statements of Mrs, Victoria ]. Gray, on behalf of the Mississippi

Freedom Democratic Party | Hearings Before Subcommittee No.

S of the House Committee on the Judiciary, S%th Cong., Ist

Sess,, Ser, 14 at p. $22] and those of Mrs, Virginia Y. Collins,

Chairman, Ad Hoe Committee of Concerned Citizens of New

Orleans | 4. at p. 533).

‘This group was chosen’ for primary study because the con-

gtessional hearings revealed they were the people most often af-

fected by improper voting test’ administration,

—5—

had the highest percentage of new residents from the

South. The remaining two reflected the exact opposite

—the highest percentage of migration from the West,

North and East. By analyzing the two, it was possible

to determine how areas with high Southern migration

compared with areas with high non-Southern migra-

tion.

The results, which are detailed in Appendix A, are

of more than passing interest. For in the “High South-

ern Migration” area, not only did fewer of the eligible

population register to vote, but fewer of those registered

actually voted, and thus the area participated less in the

1960 presidential election. The table also reveals that

the “High Southern Migration” area manifests less

participation than either Los Angeles County or the

state as a whole.

Perhaps, with time, apathy and mistrust can be over-

come. But the surest means of overcoming both apathy

and disillusionment is to prevent their occurrence by in-

suring that the mandate of the fifteenth amendment

be effectively enforced.

Through the enactment of the Voting Rights Act

of 1965, Congress is seeking to meet this mandate and

finally end an evil, which after 100 years of patience,

our Union can no longer tolerate. The law is well

within the constitutional power of Congress and_ its

appropriateness is beyond question.

es yet ae

SER Sa aA oy ee . —

; a STS

wiles

ARGUMENT.

I.

Congress Has the Power Under the Constitution

to Enact the Voting Rights Act of 1965.

There is no doubt that the Constitution gives Con-

gress the power to enact the Voting Rights Act of

1965. (Public Law 89-110.) The fifteenth amendment

provides :

“Section 1. The right of 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 previous condition of servitude.

“Section 2. The Congress shall have power to

enforce this article by appropriate legislation.”

Additionally, article I, section 4, grants Congress the

power to make or alter any state regulations as to the

time, place and manner of holding elections for senators

and representatives, “except as to the places of choos-

ing senators.”

It has long been held that when Congress has been

granted such specific and plenary power as _ that

granted by the fifteenth amendment and article I, sec-

tion 4, its power to enact legislation pursuant to such a

grant is very broad and unfettered. As Justice Marshall

succinctly stated in McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 421 (1819):

“Let the end be legitimate, let it be within the

scope of the Constitution, and all means which are

appropriate, which are plainly adapted to that end,

which are not prohibited, but consist with the letter

and spirit of the constituiton, are constitutional.”

ELE IE SOI LTA CM A FT

— oe

More recently, this was reiterated in Heart of (tan.

ta Motel Inc. v United States, 379 U.S. 241, 238

(1904), where it was said in reference to the com:

merce clause and the Civil Rights Act of 194:

“The Commerce power invoked here by the Con:

gress is a specific and plenary one authorized

by the Constitution itself, The only questions are:

(1) whether Congress had a rational basis for

finding that racial discrimination by motels af:

fected commerce, and (2) if it had such a basis,

whether the means it selected to eliminate that evil

are reasonable and appropriate,”

Past cases upholding legislation under the fifteenth

amendment reveal the breadth of congressional power

under that amendment, For example, in United States

b. Mississippi, 880 U.S. 128. THE C1905), this Court up:

held the power of Congress to make a state a defendant

in a suit: seeking preventive relief (rom voting dis-

crimination. In Hannah ve Larche, 303 U.S. 420, 482

(1900), the 1957 Civil Rights Act was held to be ap

propriate legislation under the fifteenth amendment.

Also in United States v. Raines, 362 U.S, 17, 3

(1900), the 1957 Civil Rights Act, including provisions

giving the Attorney General power to bring suits for

preventive relief, was held constitutional,

It has been contended that the total effect of sections

‘ewo and four of article 1, the first section of article I,

and the seventeenth amendment, is to vest in each state

the exchisive power to decide the qualifications for its

electors for representatives, senators, president and vice

president, See Hearings on 5, 1564 Before the Senate

Committee on the Tidiciary, 8Oth Cong, Ist Sess., Pl

at pp. 664-600 (1905),

—

PORTH Tae OREM eg

~

The words of the late Justice Frankfurter in Gomiil-

lion v. Lightfoot, 304 U.S, 339, 347 (1900), provide

a reply to such a contention,

“When a Senate exercises power wholly within

the domain of state interest, it is insulated from

federal judicial review, But such insulation is not

carried over when state power is used as an instru-

ment for circumventing a federally protected right.”

The fifteenth amendment makes the right to be free

trom the abridgment of voting rights on account of

race or color a ftederally protected right. In a con-

tinuous line of cases since 1880 this Court has held

that the right of a state to fix the qualifications of

her electors is quelified and restricted by the fifteenth

amendment. In addition to Gomillion ¢. Lightfoot,

supra, see Carringion wv Rash, 380 U.S. 80, oO]

(1903); Louisiana v United States, 380 U.S. 148.

133 (1905): United States &. Mississippi, supra,

at page L38 (1908): Lassiter ©. Northampton Elec

tion Bad., 300 U.S. 45, 50, 83 (1980) (dictum); Lane

t. Wilson, 307, U.S. 268, 278 (1930): Guinn e.

United States, 238 US. 347, 362 (1915); Pope v.

Williams, 193 U.S, 021, 633 (1903): Neal Delaware,

103 U.S, 370, 389 (1880),

The language found in Guinn © United States. supra,

at page JO2 is especially appropriate to illustrate the

point,

“But it is equally bevond the possibility of ques:

tion that the [fifteenth] Amendment in express

terms restricts the power of the United States or

the States to abridge or deny the right of a citi-

ven of the United States to vete on account of

race, color or previous condition of servitude.”

a

There is no doubt that a state may prescribe that

a person be literate as a pre-condition to his right to

vote. See Lassiter v. Northampton Election Bd., supra,

at 50-51. However, the act in question does not seek

to abolish literacy tests per se, but only those literacy

tests which are used for the purpose or with the effect

of denying or abridging the right to vote on account

of race or color. Congress was faced with the following

considerations. On the one hand there was extensive

evidence pointing to an unquestioned abuse of literacy

tests leading to an unjustified restriction of the suf-

frage. On the other hand, any means used to correct

the situation created the possibility of some persons

being permitted to vote who might not meet the re-

quirement of a bona fide literacy test. The solution

need not be perfect, and bearing in mind the ineffec-

tiveness of past Congressional attempts and the heavy

preponderance of evidence that the conditions still per-

sisted, Congress had no choice but to enact the Voting

Rights Act of 1965, What better way to attack the evil

than by suspending the instrument of the evil! Con-

gress has not exceeded the power given to it under the

fifteenth amendment because the incidental effect of

the suspension of a particular literacy test may result

in allowing some who are actually illiterate to vote.

Cf. Guinn v. United States, supra at 362, 363; Neal

v. Delaware, supra at 389.

ae

II.

The Voting Rights Act of 1965 Is Appropriate

Legislation Under the Fifteenth Amendment

and Is Not a Bill of Attainder, Ex Post Facto

Law, nor a Violation of Due Process.

(a) The Voting Rights Act of 1965 Is Manifestly Appro-

priate Legislation Under the Fifteenth Amendment.

In deciding on the appropriateness of past legislation,

this Court has repeatedly stated that it would not in-

quire into the necessity or wisdom of the enactment.

“It is... well settled that where the means

adopted by Congress are not prohibited and are

calculated to effect the object entrusted to it, this

Court may not inquire into the degree of their

necessity; as this would be to pass the line which

circumscribes the judicial department and to tread

upon legislative ground. [citations omitted.] Nor

may it enquire as to the wisdom of the legislation.”

Everard’s Breweries v. Day, 265 U.S. 545, 559

(1924). See e.g., Williamson v. Lee Optical Co.,

348 U.S. 483, 492 (1955); Day-Brite Lighting,

Inc. v. Missouri, 342 U.S. 421, 425 (1952).

Similarly, this Court has held that if there is any

rational basis for Congress to find that the regulatory

plan it chooses is necessary to enforce the fifteenth

amendment, then the investigation into the appropriate-

ness of that plan is at an end. See Katsenbach v. Mc-

Clung, 379 U.S. 294, 303-04 (1965): Heart of Atlanta

Motel, Inc. v. United States, 379 U.S, 241, 250 (1964).

An examination of the records of the hearings be-

fore both the Senate and House Committees reveals

ample evidence to give Congress a rational basis to

conclude that the particular plan it enacted was neces-

sary. For example, testimony indicated that in a great

=

majority of cases low voter participation is related to

racial discrimination. (See Hearings Before Subcom-

mittee number 5 of the House Committee on the Judi-

ciary 89th Cong., Ist sess., ser. 14 at p. 24 (1905).)

Furthermore, there was evidence that in states and coun-

ties where less than 50 per cent of those residents of

voting age were registered or voted, the percentage of

Negroes who were registered was extremely low. (See

House Hearings, supra, at p. 26; Hearings on S, 1564.

Before the Senate Committee on the Judiciary, 89th

Cong., Ist Sess., Pt. 1 at p. 33 (1965).) In general,

these are the areas where complaints about discrim-’

ination have been made (See House Hearings, supra,

at 27) and where the Department of Justice has filed

and won voting discrimination suits under previous law.

(See House Hearings, supra, at 27: Senate Hearings,

supra, at p. 33). Statistics presented to Congress bear

this out. (See House Hearings, supra, at pp. 29-33.)

The act creates a presumption that any state or po-

litical subdivision thereof which uses some form of

voting test or device and wherein less than 50% of

those residents of voting age were either registered on

November 1, 1964, or voted in the 1964 presidential

election, is using that voting test or device to deny or

abridge voting rights on account of race or color. (See

sections 4(a) and 4(b) of the Voting Rights Act of

1965.) In the light of the evidence before Congress.

the rationality of this presumption is amply supported.

(b) Sections 4(a) and 4(b) Are Not a Bill of Attainder,

nor Ex Post Facto Law, nor Do They Violate Due

Process.

The multiplicity of contentions concerning bills of at-

tainder, ex post facto laws, and violations of due proc-

ess only serve to confuse the issues before the Court.

ee ec ee eee OME a caro ieee —

—13—

The contentions invoking these doctrines are but. var-

iants of one basic argument—that the Voting Rights

Act of 1905 is invalid because it works a punishment

or deprivation upon certain citizens.

The cases condemning a statute as a bill of attain-

der all involve situations where an individual or group

was being punished or deprived of a valuable right.

See United States v. Brown, 381 U.S. 437 (1965)

(denial of the right to be an officer or employee of a

labor union); United States v. Lovett, 328 U.S. 303

(1946) (withholding an individual’s salary); Ex parte

Garland, 71 U.S. (4 Wall.) 333 (1866) (denial of right

to engage in the practice of a profession) ; Cummings

v, Missouri, 71 U.S. (4 Wall.) 277 (1866) (same).

The same requirement is applicable to an ex post facto

law. See Flemming v. Nestor, 363 U.S. 603, 613

(1960). Furthermore, the due process clause of the

fifth amendment requires a deprivation “of life, liber-

ty, or property.”

The Voting Rights Act of 1965 does not punish or

deprive anyone of any rights. No person or group

loses life, liberty, property, or job because a voting test

is suspended. A particular state or county cannot be

heard to complain because it has lost the right to dis-

criminate on account of race or color. It never had

such a right. Nor can they argue that the operation

of the presumption works a punishment in the form of

a dilution of some of their citizens’ vote. Every exer-

cise of power under the fifteenth amendment must

have an impact on those who have enjoyed the benefit

of an unjustifiably restricted suffrage. “Dilution” in

this sense is not a deprivation. To consider it so is

to limit Congress to previously used methods of en-

forcing the fifteenth amendment, which experience has

we

demonstrated are ineffective. Consequently, to impose

such a limitation on congressional power would render

the fifteenth amendment nugatory.

Nor can it be argued that the Voting Rights Act

of 1965 is a bill of attainder on any theory that it

allegedly violates the principle of separation of powers,

It is a proper legislative function to formulate policy

through the expression of rules, and to state what set

of circumstances amount to a violation of those rules,

It is equally proper for the legislature to decide the

consequences of a violation. In enacting the Voting

Rights Act, Congress has merely decided what set of

circumstances amount to a violation of the commands of

the fifteenth amendment, and that suspension of a vot-

ing test or device is one of the consequences of such a

violation. It is true that the Director of the Census and

the Attorney General, both members of the executive

branch, make the simple ministerial determination as

to the existence of those circumstances which amount

to a violation. (See Sec. 4(b).) Even greater delega-

tions of Congressional power have long been held valid.

See Bowles v. Willingham, 321 U.S. 503, 515 (1944);

Yakus v. United States, 321 U.S. 414, 424 (1944).

It is not true that Congress has attempted to usurp

judicial power. Congress has scrupulously preserved sep-

aration of powers. This follows since section 4(a) pro-

vides a mechanism by which the courts decide the ul-

timate issue of whether a test or device is being used

in a discriminatory manner. It is this legislative recog-

nition of judicial control which distinguishes the situa-

tion here from that which troubled this Court in United

States v. Brown, supra, No state need be finally sub-

jected to the consequences of the Voting Rights Act

of 1965 without this judicial determination.

ON CRIT (OL re ASC ea, ie hee a AY RAR rege YE a LT Ne D

—15—

Conclusion.

The fifteenth amendment affirmatively grants Con-

gress the power to enact. the Voting Rights Act of

1905. Furthermore, the act is appropriate legislation

and is not a bill of attainder, nor an ex post facto law,

nor a violation of due process. For these reasons, the

State of California submits that the Voting Rights

Act of 1965 of 1965 is constitutional. Therefore, the

State of California prays that a decree be entered ad-

judging the Voting Rights Act constitutional, and that

the request for an injunction preventing the Attorney

General from enforcing it be denied.

Dated: January 5, 1966.

Tuomas C. Lyncn,

Attorney General,

Mites J. Rustin,

Senior Assistant Attorney

General,

DAN KAUFMANN,

Assistant Attorney General,

Cuartes B. McKesson,

Davin N. Raxkov,

Puitie M. Rosten,

Deputy Attorneys General.

Attorneys for Amicus Curiae.

®

TE

1 PERE

Bal

APPENDIX A.’

High High-Non-

Southern Southern

Migration Migration Los Angeles

Area Area County California

Total Population 206,235 129,232 6,038,771 15,717,204

% migrants from

South 61.6 25.3 * 26.3

% migrants from

outside South 38.4 74.7 * 73.7

Total Population

Eligibic? to Vote,

iI) 112,699 79,328 3,830,926 9,660,178

% of Eligible”

who registered 69.2 73.0 78.6 77.2

% of Registered

who voted 81.7 87.3 87.4 87.1

% of eligible?

who voted 56.1 63.8 68.7 67.3

*No available statistics.

'The material used in this table was prepared in the following

manner. First, through information supplied by Edward Freud-

enberg and Lloyd Street’s Social Profile: Los Angeles County ;

a determination was made of which areas in Los Angeles County

“eflected the highest and lowest rate of Negro migration from

the South. Only those areas with a 20% or higher Negro popu-

lation were considered. “Migration” was based .apon the number

of people who moved to Los Angeles during the five-year period

from 1955-1960.

Since these study areas were based upon census tracts, it was

felt that an adequate comparison could be made if voting statis-

tics for the same tracts were available. This data was acquired

from studies of Professor Dwaine Marvick of the University of

California at Los Angeles, who correlated voting records with

census tracts for the Falk* Archives of Political Science. The

two sets of material were then combined to produce the above

table.

The data for the Los Angeles County and California columns

was obtained from the United States Bureau of Census and the

Los Angeles County Registrar's Office.

Because of incomplete statistics, a few census tracts in both

the High Southern and High Non-Southern Migration areas had

to be omitted. Also, the table reflects areas in Los Angeles

County rather than the individuals within those areas.

*The “eligible” figure was determined by subtracting the 1960

population under 21 from the overall population in each census

tract.