Amicus Curiae Brief — Cardona v. Power

TABLE OF CONTENTS

_ Qvestions To WuHIcH THis Barer 1s ADDRESSED

INTEREST OF THE AMERICAN JEWISH CONGRESS

Summary or ARGUMENT

ARGUMENT

Pornt OnzE—Denial of the right to vote to one who

is literate in a language other than English,

which is in common usage in the community

wherein he resides, deprives him of his priv-

ileges and immunities as a citizen of the United

States and his liberty as a person in violation

of the Fourteenth Amendment

A. ‘The Role of the Right to Vote in Our Con-

stitutional System

B. The English Literacy Requirement for Vot-

ing Violates the Privileges and Immunities

Clause of the Fourteenth Amendment

The English Literacy Requirement for Vot-

ing Violates the Due Process Clause of the

Fourteenth Amendment

Pornt Two—The New York requirement of literacy

in English is not one reasonably related to any

valid constitutional purpose but was intended

to and has the effect of discriminating against

an isolated minority group ix violation of the

Fourteenth and Fifteenth Amendments

A. Limitations on the Power of the State to

Restrict the Right to Vote .................00008 26

.B. The Discriminatory Intent and Effect of

the New York English Literacy Require-

MIOWE gocaitiasieectinateds Soickksssin-sthvdebtoderelauiastovss Geass 27

C. A State Literacy Test Which is Intended

to and is Effective to Discriminate Against

National Origin Groups is Unconstitu-

eee COPE COCO COCOCCOCCOCOCCC COCO Cie er reir ere ret rrr rrr)

Pornt THreE—The New York English literacy re-

quirement is an unconstitutional ‘‘Grandfather

Clause’’ clearly violative of the Fourteenth and

Fifteenth Amendments to the Federal Consti-

RRR Ree HERE Eee Ree EEE EERO EERE EEE EEE HEE ES ESTEE EE EEE EEE EEE EEE ERED

SERRE RRR ERE RR REE E EERE EEE EE EERE EERE REE EE EEE EERE EE EEE EEE EEE ee

ConcLusIon

TABLE OF AUTHORITIES

Cases:

Baker v. Carr, 369 U. S. 186 (1962) ...ccccsccsecscseeie 26

Carrington v. Rash, 380 U. S. 89 (1965) 0.0... 34, 36

Comacho v. Rogers, 199 F. Supp. 155 (S. D. N. Y.

TERRA RRR E REE EEE REE R ERE E ESET EERE EEE EEE REET EEE EEE E SHEE E EERE E EEE SEES

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala.), aff’d

mem., 336 U. S. 933 (1949)

TEER RRR EERE Ree Ee eee Eee eee eee eee

whee ee eens

{_, SORRSSE Sa erga etiie sk near et RC aR

Ferguson v. Skrupa, 372 U. S. 726 (1963)

ec eee ECO eCerrrer

Gitlow v. New York, 268 U. S. 652 (1925) ..................

Gomillion v. Lightfoot, 364 U. S. 339 (1960) ................ 27, 34

Gray v. Sanders, 372 U. 8. 368 (1968) ..............00:cce 33

Guinn v. United States, 238 U. S. 347 (1915) .......... 39, 41, 42

Hague v. C. I. 0., 307 U. S. 496 (1939) ..........ceeceeeees 22

Hawke v. Smith, 253 U. S. 221 (1920) 0.0.0.0... cece 23

Lassiter v. Northampton County Board of Elections,

300: T. G. 66 CGS) ne sc. as 11, 15, 17, 33, 38

Lassiter v. Taylor, 152 F. Supp. 295 (N. C. 1957) ........ 40

Mabry v. Davis, 232 F. Supp. 930 (W. D. Tex. 1964)... 34

McCulloch v. Maryland, 4 Wheat. 316 (1819) ................ 20

Meyer v. Nebraska, 262 U. S. 390 (1923) ............ 15, is 30, 43

Meyer v. State, 107 Neb. 657, 187 N. W. 100 (1922)... 30

Nixon v. Condon, 286 U. S. 73 (1932) ........ A CareAN DRI 26

Nixon v. Herndon, 273 U. S. 536 (1927) ..............c8 26

Oyama v. California, 332 U. S. 633 (1948) .................... 37

Pope v. Williams, 193 U. S. 681 (1904) 0.0.00... 33

Reynolds v. Sims, 377 U. S. 533 (1964) ..............cccee 8, 10

Skinner v. Oklahoma, 316 U. S. 535 (1942) ..........00....... 26

Slaughter-House Cases, 16 Wall. 37 (1873) ....5, 19, 20, 21, 22

Smith v. Allwright, 321 U. S. 649 (1944) «0.0.00, 23, 26

Star Opera Co. v. Hylan, 109 Misc. 132, 178 N. Y. S.

FID CADID) iss ener ian 31

Stone v. Smith, 159 Mass. 413, 34 N. B. 521 (1893) ........ 33

Thomas vy. Collins, 323 U. S. 516 (1945) ............... 13, 14

Thornhill v. Alabama, 310 U. S. 88 (1940) ................... 13, 14

Twining v. New Jersey, 211 U. S. 78 (1908) .................. 22

United States v. Aaron Burr, 4 Cranch 470 .................... 20

United States v. Carolene Products Co., 304 U. S. 134

CRI) cis aciesinsciticiensoiiisek Seve casipageaniemcaeclinbeseehintaee 13, 14,15

United States v. Classic, 313 U. 8. 299 (1941) .............. 26

Iv

PAGE

United States v. Clement, 231 F. Supp. 913 (W. D. La.

TR arn 8S CAEN CSG Re te A Tat ea 35

United States v. Louisiana, 225 F. Supp. 353 (KE. D.

La. 1963), affirmed 380 U. S. 145 (1965) ................ 35, 37

United States v. Mississippi, 229 F. Supp. 925 (S. D.

Miss. 1964), reversed, 380 U. S. 128 (1965) ............ 36

United States v. Palmer, 230 F. Supp. 716 (E. D. La.

HOGA) nic Ss i sc 35

Wesberry v. Sanders, 376 U. S. 1 (1964) 0.00.0. 23

West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) 21

West Virginia State Board of Education v. Barnette,

SES UT Fe. OO Ce ok ee sie ees 15

Wiley v. Sinkler, 179 U.S. 58 (1900) o.oo 26

Wright v. Rockefeller, 376 T/. S. 52 (1964) ............. 35, 37, 40

Yarbrough, Ex parte, 110 U. S. 651 (1884) 000. 26

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................... 7

Other Authorities:

Bogart, The Age of Television, 10 (1956) .........0.00.0...... 18, 19

Chafee, Free Speech in the United States, 237 (1948) ..30, 31

Cobb, The Rise of Religious Liberty in America, 502 9

Laslett, Second Treatise on Government .................0.0.... 10

Lazarsfield, Berelson and Gauder, The People’s

NU BE sansa ie ga beceeds oetuireorsacte each 19

Library of Congress Edition of the Constitution

LS aR 1%” RARER RES UaR once nec Ne e Pe 20

Op. Atty. Gen., 48 St. Dept. 179 (1933) 0.0.00 pu a

I Br Ng Ti TO seks ree Sox isha ccsie chic cv nnd 8

United States Commission on Civil Rights, 1959 Re-

Pg Ee Oe Ba OA Soe BW ie wi MRT chu Slesyvarae Cot earaehens 12

Waldman, Albany: The Crisis in Government (1920) 31

IN THE

Supreme Court of the United States

October Term, 1965

No. 673

_ Oe

MarrHa Carpona,

Appellant,

vs.

James M. Powser, THomas Mauiez, Maurice J. O’Rourke

and JoHn R. Crews, Members of and constituting the Board

of Elections of the City of New York,

and

Louis J. Lerxowitz, as Attorney General, appearing

specially pursuant to Section 71 of the Executive Law.

——-— a

BRIEF OF AMERICAN JEWISH CONGRESS,

AMICUS CURIAE

The American J ewieh Congress has sought and received

consent of the parties to submit this brief amicus curiae.

Statement

Appellant, Martha Cardona, is a native-born citizen of

the United States who is literate in Spanish, the native

language of her place of birth, Puerto Rico (R. 2). She

voted regularly in gubernatorial, legislative and municipal

elections in Puerto Rico prior to coming to New York City

in 1948 (R. 3). The facts set forth in her petition indicate

that she had access to sufficient sources of information and

has utilized such sources to become an informed and know]-

edgeable citizen (R. 3). Nonetheless, she and large num-

bers of her fellow citizens similarly situated, although they

are literate in the language which they learned in their

United States schools, are denied the right to vote in New

York State pursuant to Article II, Section 1 of the New

York State Constitution and Sections 150, 168 and 201(1)

of the New York State Election Law. The constitutional

provision reads, in part, as follows: ‘‘* * * after January

first, one thousand nine hundred twenty-two, no person shall

become entitled to vote * * * unless such person is also able,

except for physical disability, to read and write English.”’

Appellant’s application for an order directing that the

members of the Board of Elections of the City of New York

register her as a duly qualified voter or, in the alternative,

directing the Board to give appellant a literacy test in the

Spanish language (R. 1) was denied by the Supreme Court

of New York County (R. 37-38). The New York Court of

Appeals, voting four to three, affirmed (R. 40-41).

Questions te Which this Brief is Addressed

This brief amicus considers only the following ques-

tions:

1. Is the denial of the right to vote to native American

citizens who, although literate in Spanish, are unable to

meet the English literacy requirement of New York State

3

a violation of either the Privileges and Immunities or Due

Process Clauses of the Fourteenth Amendment?

2. Is the English literacy requirement for voting a vio-

lation of the Equal Protection Clause of the Fourteenth

Amendment and the prohibition of discrimination in the

Fifteenth Amendment because its purpose and effect is to

discriminate against specific groups in the population?

3. Does the New York English literacy requirement

violate the Fourteenth and Fifteenth Amendments because

it contains an impermissible ‘‘grandfather clause’’?

Interest of the American Jewish Congress

The American Jewish Congress was formed in part ‘‘to

help secure and maintain the equality of opportunity * * *

to safeguard the civil, political, economic and religious

rights of Jews everywhere’’ and ‘‘to help preserve and

extend the democratic way of life.’’ It has a special inter-

est in assuring equal recognition of the social, economic and

1. The American Jewish Congress sought consent to file an

amicus curiae brief in Katzenbach v. Morgan, October Term 1965,

Nos. 847 and 877 as well as in this case. Consent was granted by

the United States, the State and City of New York but not by the

appellee. Accordingly, we do not discuss in this brief the question

whether Congress validly nullified the New York English literacy

requirement, in whole or in part, by adopting Section 4(e) of the

Voting Rights Act of 1965. We note, however, that a decision in

the Morgan case upholding the validity and effectiveness of Section

4(e) would not dispose of the issues to which this brief is addressed

or render them moot. Section 4(e) does not invalidate the New

York voting limitation in toto but merely suspends it as to persons

educated in American-flag schools. Other American citizens, not

literate in English, would be barred from voting in New York even

if Section 4(e) were upheld. :

4

politieal interests of minority groups and it combats dis-

crimination against such groups whether on grounds of

race, religion or national origin or because of the expression

of unpopular views.

It is the belief of the American Jewish Congress that the

disfranchisement of American citizens of Puerto Rican

origin effected by the English literacy test established in

New York is wholly unjustifiable and tends to perpetuate

the hardships that this substantial minority group faces

in its attempts to become part of the mainstream of Ameri-

can society. Although there were in the past a number of

American citizens of the Jewish faith who were disfran-

chised by the requirement of English literacy, the major

impact of this inequitable requirement falls today upon the

Puerto Riean Ameriean who is literate only in the language

native to his place of birth in this country.

No right is more cherished or more important to any

segment of United States citizenry than the right to vote

and to be heard by the executive, legislative, and judicial

branches of the government. To shut off the voice of this

substantial group of persons who reside within a fairly

limited geographical area in the City of New York is to

deprive them of their single most important political right.

The denial of appellant’s application for relief continues

in effect a set of laws which are inimical to two of the basic

traditions of this country—universal adult suffrage and

cultural pluralism. The issues presented on this appeal

raise serious questions eoncerning the very core of our re-

publican form of government and the preservation of Amer-

ican democratic principles.

Summary of Argument

I. A. Denial of the right to vote to one who is literate

in a language other than English in common use in the com-

munity in which he resides deprives him of privileges and

immunities as a citizen of the United States and also of

his liberty as a person, in violation of the Fourteenth

Amendment.

The right to vote is an essential element of our demo-

cratic system which can be denied only upon the clearest

evidence that the denial is required by the common weal.

The state cannot and has not shown that disenfranchise-

ment of appellant and others similarly situated is unques-

tionably necessary to achieve intelligent exercise of the

ballot.

B. The right to vote impaired by the New York English

literacy requirement should be found to be a privilege and

immunity of Federal citizenship, protected against impair-

ment by the Fourteenth Amendment. We urge the Court

to reach this result, overruling or limiting, if necessary, its

decision in the Slaughter-House Cases, 16 Wall. 37 (1873).

C. The same result can be reached under the Due Proc-

ess Clause of the Fourteenth Amendment, since it is plain

that the term ‘‘liberty’’ as used in that amendment includes

the fundamental freedoms upon which our democratic so-

ciety rests, including the right to vote.

II. A. The New York English literacy requirement vio-

lates the prohibitions of discrimination contained in the

Fourteenth and Fifteenth Amendments.

B. The history of the New York requirement clearly

demonstrates that its purpose was to discriminate against

6

later arriving persons who were not of ‘‘ Anglo-Saxon

stock.’’ The arbitrary character of the requirement further

supports the view that its purpose was not to protect the

-voting process.

C. A state literacy test which is intended to and is ef-

fective to discriminate among voters on the basis of national

origin is unconstitutional under both the Fourteenth and

Fifteenth Amendments.

Il. The New York English literacy test is a ‘‘grand-

father clause’’ which perpetuates discrimination in a man-

ner that violates the Fourteenth and Fifteenth Amend-

ments, It effects the same discrimination condemned in

previous decisions of this Court dealing with grandfather

clauses.

ARGUMENT

POINT ONE

Denial of the right to vote to one who is literate

in a language other than English, which is in common

‘usage in the community wherein he resides, deprives

him of his privileges and immunities as a citizen of

the United States and his liberty as a person in viola-

tion of the Fourteenth Amendment.

A. The Role of the Right to Vote

in our Constitutional System

The one element of a democratic government which,

above all others, distinguishes it from all other forms of

government is the participation of the people in the selec-

tion of those who govern them. We dissolved the political

bonds which connected us with England because its King

7

denied us that right, and in our declaration of the causes

which impelled the separation we asserted that only those

powers are justly exercised as are derived from the consent

of the governed. The Constitution which conferred powers

on the independent government established after the sever-

ance was ordained by ‘‘ We, the people.’’

Ideally, the consent of the governed is best exercised by

the direct ‘‘town meeting’’ vote of the people on every

legislative proposal—a procedure known in political science

as pure democracy. This, obviously, was hardly practicable

in 1787 and is even less so today. Our Constitution, there-

fore, set up the next best thing—representative govern-

ment. Representative government, however, is democratic

government only to the extent that the representatives are

selected by the people they govern. This view has been ex-

pressed by this Court on many occasions.

Thus, in Yick Wo v. Hopkins, 118 U. 8. 356, 370 (1886),

this Court said:

Though not regarded strictly as a natural right, but as

a privilege merely conceded by society according to its

will, under certain conditions, nevertheless it [the

political franchise of voting] is regarded as a funda-

mental political right, because preservative of all

rights.. (Emphasis added.) :

A more recent decision, Wesberry v. Sanders, 376 U. Ss.

1, 17 (1964), reemphasized that view:

No right is more precious in a free country than that

of having a voice in the election of those who make the

laws under which, as good citizens, we must live. (Em-

phasis added.)

8

And it gave perspective to that concept by a quotation from

No. 57 of The Federalist (id. at 18):

‘*Who are to be the electors of the Federal Repre-

sentatives? 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

obscure and unpropitious fortune. The electors are

to be the great body of the people of the United States

*@ @9)

Again, in Reynolds v. Sims, 377 U. S. 533, 565 (1964),

this Court said:

* * * representative government is in essence self-

government through the medium of elected representa-

tives of the people and each and every citizen has an

inalienable right to full and effective participation in

the political processes of his state’s legislative bodies.

There is, of course, always a gap between principle and

practice. Objectives and ideals unavoidably find them-

selves compromised to the demands of political realities.

Only the members of the House of Representatives were,

in 1787, to be chosen ‘‘by the people.’’ Senators were to be

elected indirectly and were to be distributed upon a geo-

graphic rather than popular base. Inability to agree upon

qualifications for voting impelled the constitutional fathers ©

to leave the issue to the states for determination (with the

significant command that they should be the same as im-

posed upon electors of the ‘‘most numerous branch of the

state legislatures’’), and within the states restrictions on

access to the ballot were numerous and widespread. Wom-

en and Negroes were universally disenfranchised. So too

were paupers and in some states non-landowners. In a few

9

non-Christians and even, under some circumstances, non-

Protestants, could not exercise their franchise. Cobb, The

Rise of Religious Liberty in America, 502.

It was, however, not the purpose of the Constitution to

freeze these impairments of democracy into our govern-

mental structure for all time. The history of the United

States is a chronicle of expanding democracy. Steadily

we have been progressing towards the ultimate (even if,

perhaps, never fully attainable) goal of universal franchise.

Religious restrictions upon voting disappeared first; the

era of Jacksonian democracy brought an end to most state

property qualifications. Negroes and women later achieved

constitutionally protected access to the polling places.

United States Senators were required to appeal to the

people directly for their votes. Residents of the District

of Columbia were enfranchised at least in part and the poll

tax was removed as a barrier to the ballot bex in Federal

elections.

It is true that most of these changes were effected by

express constitutional amendment or statutory enactment.

Nevertheless, the judiciary too has its responsibilities of

office. Can it be doubted that were the requirement in the

original New York constitution that applicants for citizen-

ship and thus for the franchise abjure all foreign allegiance,

‘tecclesiastical as well as civil,’’ effective today it would

be adjudged unconstitutional by this Court? It was the

judiciary, after long default by the legislature, which man-

dated, as far as possible, the democratic principle of one

man, one vote.

10

Democratic expansion did not come to a halt in 1787,

even as far as the judiciary is concerned. The secret ballot

was unknown then, but there is no question that it would be

constitutionally protected today. Real property ownership

qualifications for voting were widespread but even aside

from the 14th Amendment would this Court uphold a Con-

gressional statute limiting the right to vote in the District

of Columbia to persons owning real property? The United

States has called upon this Court to declare unconstitu-

tional the poll tax requirement for voting in state elections

even though the 24th Amendment is expressly limited to

F»-»ral elections.

Whatever may have been the situation in 1787, we sub-

mit that American constitutional democracy today requires

that no person may, except for the gravest reasons, be de-

nied the right to participate in the selection of the persons

who exercise the power to govern him. As the Court said

in Reynolds v. Sims, supra, 377 U.S. at 555:

The right to vote freely for the candidate of one’s

choice is of the essence of a democratic society, and any

restrictions on that right strike at the heart of repre-

sentative government.

We submit that today, with the exception of children and

the mentally incompetent,’ every person has an inherent

2. John Locke, godfather of the Declaration of Independence and

our representative government, recognized the validity of these ex-

ceptions (Second Treatise on Government, Laslett, ed.) :

55. Children, I confess are not born in this full state of

Equality, though they are born to it. Their Parents have a sort

of Rule and Jurisdiction over them when they come into the

World, and for some time after, but ’tis but a temporary one.

The Bonds of this Subjection are like the Swadling Cloths they

are wrapt up in, and supported by, in the weakness of their

ll

right to vote and a governmental deprivation of that right

is constitutionally justifiable only upon the clearest evi-

dence that it is required by the common weal. We submit

further that this is one of the privileges and immunities

guaranteed to the people by the 14th Amendment against

abridgement by the states and a liberty guaranteed by it

against deprivation by the states without due process of

law.

We are not required in this case to challenge disenfran-

chisement of felons and non-citizens. Nor need we here

challenge the assumption in Lasstter v. Northampton Coun-

ty Board of Elections, 360 U. S. 45 (1949), that the state

has a sufficient interest in the intelligent use of the ballot

Infancy. Age and Reason as they grow up, loosen them till at

length they drop quite off, and leave a Man at his own free

Disposal.

* * x

60. But if through defects that may happen out of the ordi-

nary course of Nature, any one comes not to such a degree of

Reason, wherein he might be supposed capable of knowing the

Law, and so living within the Rules of it, he is never capable of

being a Free Man he is never let loose to the disposure of his

own Will (because he knows no bounds to it, has not Under-

standing, its proper Guide) but is continued under the Tuition

and Government of others, all the time his own Understanding

is capable of that Charge. And so Lunaticks and Ideots are

never set free from the Government of their Parents; Children,

who are not as yet come unto those years whereat they may

have; and Innocents which are excluded by a natural defect from

ever having; Thirdly, Madmen, which for the present cannot

possibly have the use of right Reason to guide themselves, have

for their Guide, the Reason that guideth other Man which are

Tutors over them, to seek and procure their good for them, to

seek and procure their good for them, says Hooker, Ecc. Pol.

Lib. 1. Sec. 7. All which seems no more than that Duty, which

God and Nature has laid on Man as well as other Creatures, to

preserve their Off-spring, till they can be able to shift for them-

selves, and will scarce amount to an instance or proof of Parents

Regal Authority.

12

to justify conditioning it upon ability to read and write.

Indeed, we can even concede that the most likely means of

assuring the intelligent use of the ballot is to require liter-

acy in the English language, even though thereby not only

Spanish speaking citizens in New York but Japanese and

Chinese speaking citizens in Hawaii are disenfranchised.

We submit, however, where an ‘‘inalienable Right”

which is ‘‘of the essence of a democratic society’’ is con-

cerned, it is not sufficient that the state has selected a likely

method among various apparently reasonable alternatives.

In such a situation the state is required to establish by the

clearest evidence that no practicable alternative method to

achieve a specific end exists other than disenfranchisement

of citizens literate in a language other than English. We

submit, finally, that in a community in which there are

widespread organs of public communication in the citizen’s

tongue, such as newspapers, periodicals, radio and tele-

vision, which regularly report and comment on matters of

political interest and public concern, a state’s determination

that no practicable alternative exists cannot be sustained.

According to the 1959 Report of the United States Com-

mission on Civil Rights, pp. 67-68, there are approximately

618,000 American citizens of Puerto Rican ancestry living

in New York City. About 190,000 of them have lived here

long enough to satisfy the state’s residence requirements

for voting. However, 59% of Puerto Rican residents of

New York read and write only Spanish and are therefore

not permitted to vote. Although the exact number so dis-

enfranchised is not indicated in the Commission’s report,

it does state that ‘‘this Commission has found that Puerto

13

Rican-American citizens are being denied the right to vote,

and that these denials exist in substantial numbers in the

State of New York.”’

We submit that only the most cogent grounds can jus-

tify the denial of the franchise to so substantial a number

of American citizens who are residents of New York. It

is quite reasonable that a court in reviewing the constitu-

tionality of a statute should give great weight to the judg-

ment of the legislature in its determination of the necessity

of the legislation. Ordinarily, if a situation exists which

the legislature deems to require legislative action, the

courts will not interfere with its determination of the ap-

propriateness of a particular remedy unless the legisla-

ture’s act was patently unreasonable. United States v.

Carolene Products Co., 304 U. S. 134, 152-3 (1958). Where,

however, the legislation abridges a fundamental right of

American citizens, a far sterner test is imposed. ‘‘The

rational connection between the remedy provided and the

evil to be curbed, which in other contexts might support

legislation against attack on due process grounds, will not

suffice.”? Thomas v. Collins, 323 U. 8. 516, 530 (1945).

As was said in Thornhill v. Alabama, 310 U. S. 88, 95-

96 (1940):

Mere legislative preference for one rather than

another means for combatting substantive evils, there-

fore, may well prove an inadequate foundation on

which to rest regulations which are aimed at or in

their operation diminish the effective exercise of rights

so necessary to the maintenance of democratic insti-

- tutions.

14

Where the legislation restricts the right to vote, the

most stern judicial test is to be applied when its consti-

tutionality is challenged. In United States v. Carolene

Products, supra, 304 U. S. at 152-3, n. 4, the Court did not

find it necessary ‘‘* * * to consider now whether legisla-

tion which restricts those political processes which can

ordinarily be expected to bring about repeal of undesir-

able legislation, is to be subjected to more exacting judi-

cial scrutiny under the general prohibitions of the Four-

teenth Amendment than are most other types of legislation.

** *? Tn subsequent cases, however, the Court did find

it necessary to pass upon the question and answered it in

the affirmative. Thomas v. Collins, supra; Thornhill v.

Alabama, supra.

The reason for the imposition of a sterner test in cases

involving fundamental liberties, particularly those affect-

ing the franchise, is obvious. One may well urge that, in

general, removal of unwise laws should be sought by ap-

peal not to the court but to the ballot and to the processes

of democratic government. But this necessarily implies

that recourse to the ballot is unobstructed and that the

processes of democratic government are kept free to oper-

ate. It follows that the Court should subject to a closer

than ordinary scrutiny and impose more exacting stand-

ards in respect to legislative actions that obstruct the

channels for legislative change. It little profits the Span-

ish-speaking Puerto Ricans that the literacy test assailed

here can be removed by action of the legislature if they

are barred from participating in the process of selecting

the legislature. In such a case, the Court must assume

something of the nature of a fiduciary for the protection of

15

the otherwise unprotected disenfranchised and must de-

mand a strict accounting on the part of the legislature.

This is particularly so where the disenfranchised are

a racial, religious or national minority. United States v.

Carolene Products, supra; Meyer v. Nebraska, 262 U. S.

390 (1923) ; Farrington v. Tokushige, 273 U. S. 284 (1927).

This Court therefore must determine what legitimate

end the assailed literacy test sought to achieve, and whether

the use of the literacy test is a valid means to achieve that

end. In this respect, we submit that the only legitimate

end that could be sought to be achieved was to assure that

citizens exercising their elective franchise have a reason-

ably intelligent understanding of the issues and the candi-

dates upon whom they are called to pass judgment, so that

they can make ‘‘intelligent use of the ballot.’’ Lassiter

vy. Northampton County Board of Elections, supra, 360

U.S. at 512

3. It is, we submit, beyond the constitutional power of the legis-

jature to employ the grant or withholding of the elector’s franchise

as a means to induce persons to learn the English language. We do

not challenge the power of the state to encourage and facilitate the

learning of the English language by residents of the state. For that

purpose the states and municipalities can and do provide free instruc-

tion in the English language for foreigners and engage in public

campaigns to induce residents to learn English. However, to deny

persons their constitutional right of engaging in the election of their

government as a means to influence them to learn English is, we

submit, a form of impermissible coercion.

In Meyer v. Nebraska, supra, this Court held that a state could

not declare it a crime for persons to teach children a foreign lan-

guage; and in Farrington v. Tokushige, supra, it held that the oper-

ation of a foreign language school could not be hampered by unrea-

sonable and arbitrary regulations motivated by a desire to discourage

the learning of a foreign language. In West Virginia State Board

of Education v. Barnette, 319 U. S. 624/(1943), it held that the

privilege of attending a free public school could not be withdrawn

16

It follows, therefore, that only if this Court finds by

clear, cogeut and convincing evidence that a person literate

in a language other than English cannot intelligently exer-

cise the ballot, can the statute assailed herein be upheld.

It follows, also, that the burden of establishing this neces-

sity is upon the state. The right of American citizens to

vote in elections is a precious one, of which they should not

be deprived except for the most grave reasons. It is not

enough that persons literate in English may exercise the

ballot more intelligently than those literate in Spanish.

That college graduates may exercise the ballot more intel-

ligently than elementary school graduates would not justify

disenfranchisement of the latter. To justify the depriva-

tion of so fundamental a right, the state must establish

that such disenfranchisement is unquestionably necessary

to protect the electoral process.

For the following reasons, we submit that there is no

such cogent proof that literacy in English is necessarily

required for intelligent exercise of the ballot as would

justify the denial to so many American citizens of the

fundamental democratic right to participate in the selec-

tion of their government:

1. The literacy in English qualification is barely a quar-

ter of a century old. For a century and a half the State

of New York, beginning with its Constitution of 1777, did

not require literacy in English as a requisite to vote.

from children who refused to salute the flag or pledge allegiance

to it. This, the Court held, was as much a form of coercion as the

means employed in the Meyer and Tokushige cases. Since the legis-

lature patently cannot coerce adult persons to learn the English lan-

guage, it cannot achieve this end indirectly by withholding from them

a constitutional right unless they do so.

17

During that period many illustrious and great persons

were elected to high office in the State of New York. Three

of its governors became Presidents of the United States.

Certainly there is not the slightest evidence that, during

this period, the fact that persons not literate in English

participated in the selection of the government was in any

way prejudicial to the public welfare.

2. Even today more than three-fifths of the States of

t; . Union have no literacy qualification at all for voting.

Thus, in 31 of the 50 states, one need not be literate in any

language in order to cast a ballot. Lassiter v. Northamp-

ton County Board of Elections, supra, 360 U.S. at 52, n. 7.

There is no reason to believe that the administration of

the government and laws in these states is inferior to that

in the other 19 states. Without regard to whether the re-

quirement of literacy is reasonabie, we urge that, in view

of the fact that three-fifths of the states require no literacy

at all, there is no clear need for the requirement of literacy

in English.

It should be noted further that of the 19 states which

do have a literacy requirement only 12 specify that the

literacy be in English. Hence, of the 50 states in the Union,

fully 38 states do not require literacy in English as a quali-

fication for voting.

3. Whatever might be the case in respect to some

rarely used foreign language, literacy in so widely used

a language as Spanish assures that the Spanish-speaking

voter can be fully enough familiar with the issues and

candidates presented to him to make an intelligent choice.

coy eR er neemIRT:

18

As the United States Commission on Civil Rights has

shown in its 1959 Report, p. 67, there are three Spanish-

language newspapers, having a combined daily circulation

of 82,000, published and distributed in New York. Two

of these newspapers, El Diario and El Emparcial, have a

format similar to that of the English language Daily News.

Like the English-language prototype, the first six pages

of El Diario and El Emparcial are mainly devoted to cur-

rent political and civic issues. The more significant polit-

ical and civic issues are explored further by featured

columnists and in the editorials. Prior to September 17,

1959, La Prensa was much like the World Telegram and

Sun and the Herald Tribune in format and coverage.

Since that date the more popular tabloid form of layout has

been adopted. However, the coverage is apparently as

complete as before.

The Spanish newspapers use the same news services

as the English press. In addition, there are a number of

radio and television stations in New York regularly broad-

casting news and news analyses in Spanish. These pro-

grams are listed in detail in the Spanish press.

Whatever need there may have been for literacy in

English as a means of obtaining political information 40

years ago when the New York requirement went into effect,

it has been largely if not completely eliminated by the ad-

vent of radio and television. In 1925, only 10% of the

homes in the United States owned radio sets. By 1940,

82% owned radios, Bogart, The Age of Television, 10

(1956), and a study of that election concluded that ‘‘radio

proved more effective than the newspaper’’ because of its

19

‘face-to-face contact with the principals’? and the ‘‘per-

sonal relationship’’ established. Lazarsfield, Berelson and

Gauder, The People’s Choice, 128, 129 (second edition

1948). In 1956, 98% of the homes in the United States

owned radios and 73% owned television sets. Bogart,

supra. The percentages are undoubtedly higher today and

the influence of radio and television upon voters has

dwarfed the importance of the printed word. Thus, there

is even less reason today to disqualify Spanish-speaking

voters and continue to deny to them a most cherished right

and privileges.

B. The English Literacy Requirement for Voting

Violates the Privileges and Immunities Clause

of the Fourteenth Amendment.

We believe we have established that there is no such

compelling need for New York’s English literary require-

ment as to justify denial of the right to vote to a substan-

tial number of citizens. If so, the requirement is unconsti-

tutional either as a denial of privileges and immunities

guaranteed under the Fourteenth Amendment or as an

impairment of a liberty protected by that Amendment’s

Due Process Clause. We deal with the latter concept be-

low. Here, we urge that this Court reach the suggested

result under the Privileges and Immunities Clause, over-

ruling to whatever extent necessary its decision in the

Slaughter-House Cases, 16 Wall. 37 (1873). We submit

that the time has come to take that step toward restoration

of the full intended effect of the Fourteenth Amendment.

‘Unique among constitutional provisions, the privileges

and immunities clause of the’ Fourteenth Amendment’ en-

20

joys the distinction of having been rendered a ‘practical

nullity’ by a single decision of the Supreme Court rendered

within five years after its ratification.’’ Library of Con- |

gress Edition of the Constitution (1964), pp. 1075-1076.

This came about because the Court interpreted the clause

as limited to the protection of those privileges and im-

munities ‘‘which owe their existence to the Federal govern-

ment, its National character, its Constitution, or its laws.”

Slaughter-House Cases, supra, at 79.

As has often been noted, this restrictive interpretation

of the Clause makes it completely superfluous. Privileges

and immunities so limited are already protected by the

Supremacy Clause and by the Federal Government’s in-

herent power to protect its own processes and institutions.

McCulloch v. Maryland, 4 Wheat. 316 (1819). The decision

in the Slaughter House Cases sets forth among the exam-

ples of privileges which owe their existence to the National

Government access to the Federal Courts. But can there

be any doubt that, were there no Fourteenth Amendment,

this Court would hold unconstitutional a law passed by

a jealous state making it a criminal offense for its citizens

to resort to the Federal courts for judicial redress of their

grievances?

In United States v. Aaron Burr, 4 Cranch 470, 482, the

greatest of Chief Justices noted that, ‘‘Every opinion to

be correctly understood ought to be considered with a view

to the case in which it was delivered.’’? An examination

of the circumstances surrounding the Slaughter-House

Cases decision and of the later opinions of the Justices who

joined in the majority and minority opinions indicates

21

quite clearly that the underlying motivation of the majority

of the Court was to forestall use of the Amendment as a

means, urged by the appellants in the case, to censor and

restrict state regulation of business. The majority there-

fore asserted that the sole ‘“‘pervading purpose’’ of the

Amendment was to assure ‘‘the freedom of the slave race.’”

The expectations or hopes of the majority were doomed

to frustration. In succeeding years the Amendment was

used far more to protect the interests of business than the

rights of the Negro race; substantive due process provided

an adequate and satisfactory alternate route after the road

via privileges and immunities was closed.

In any event, nullification of the Privileges and Im-

munities Clause is today no longer necessary. The uni-

form holding and tenor of the Court’s decisions from West

Coast Hotel Co. v. Parrish, 300 U. 8S. 379 (1937) to Fergu-

son v. Skrupa, 372 U. S. 726 (1963) show unmistakably

that the Court has no intention to use the Fourteenth

Amendment to censor State regulation of business. We

submit that the time has come for the Court to restore

to privileges and immunities the meaningfulness it took

from it in the Slaughter-House Cases. To paraphrase in

reverse the words of Job, what the Court has taken away,

the Court can give.

Specifically, what we urge is that the right of a citizen

to participate in the selection of those who govern him is

a privilege of citizenship of which the Fourteenth Amend-

ment forbids deprivation by the State in the absence of

the clearest evidence that deprivation is required to pro-

tect a paramount societal interest and that there is no

available alternative to protect the interest.

Nor should the Court be deterred by undue concern for

an extreme interpretation of the limitations imposed by

the principles of federalism. Federalism is a means, not

an end, and where federalism stands in the way of assur-

ing to citizens their inalienable right to participate in the

selection of their governors, it is federalism rather than

the right which should yield ground. This, in any event,

was the entire raison d’etre of the Fourteenth Amend-

ment, as this Court has recognized in innumerable deci-

sions. 3 *

Should, however, the Court decide that it cannot go so

far, we submit that the same result be reached by a nar-

rower interpretation of the Privilege and Immunities

Clause, one fully consistent with the restrictive interpre-

tation in the Slaughter-House Cases as further interpreted

in Twining v. New Jersey, 211 U. S. 78, 97 (1908). Inso-

far as elections to Federal office are concerned, it is hardly

contestable that the right to participate therein owes its .

existence to the national government. If, as this Court

held in Hague v. C. I. 0., 307 U. S. 496 (1939), freedom to

use municipal streets and parks for public discussion of

a law enacted by Congress is a privilege or immunity

which owes its existence to the national government, cer-

tainly so too is the freedom to participate in the election

of members of the Congress that enacts the law. Hence,

at the very least, the Court should hold the New York law

unconstitutional in respect to elections for the President

and members of Congress.

23

However, we urge the Court to go further. We submit

that the powers and functions of a state legislature are so

inextricably related to the national government that a dep-

rivation of the right to vote for members of the state

legislature impairs privileges and immunities protected

by the Fourteenth Amendment. We note, for example,

that when a state legislature passes upon a resolution to

amend the Federal Constitution, it is exercising a power

and responsibility which is derived from the national gov-

ernment through the national Constitution. Hawke v.

Smith, 253 U. S. 221 (1920); so, too, when it prescribes

the rules and regulations for primaries at which candi-

dates for Federal office are selected (Smith v. Allwright,

321 U. S. 649 (1944) ), or when it apportions districts from

which members of the House of Representatives are elected

(5 Stat. 491 (1842)); Wesberry v. Sanders, 376 Uv. 6.2

(1964), or when it calls upon the national government to

protect it against domestic violence (U. S. Constitution,

Article IV, Sec. 4).

Nor is this interdependency of Federal and State gov-

ernmental functions limited to the legislature. The right

of a state governor to demand extradition from another

state has its source in the Federal Constitution (Article

IV, Sec. 2), as has the right to call upon the national gov-

ernment for protection against domestic violence (Jd., Sec.

4).

Even the state judiciary exercises powers whose source

is in the national government. Its judicial proceedings

are accorded extraterritorial effectiveness only by reason

of the Full Faith and Credit Clause of the National Con-

stitution (Article IV, Sec. 1).

24

Finally, we note the many and ever-increasing instances

of what has been called cooperative federalism—the joint

efforts of the national government and the states in achiev-

ing such common objectives as security against want in old

age or in unemployment or extended education on the ele-

mentary, secondary and college level or provision for the

ill and physically injured who require hospital care.

These and many other instances can be cited in sup-

port of our basic proposition—that the Federal and state

governments are so inextricably interrelated and interde-

pendent that deprivation of the right to participate in the

selection of state government directly and inevitably im-

pairs privileges and immunities whose source is in the na-

tional government.

C. The English Literacy Requirement for

Voting Violates the Due Process Clause

of the Fourteenth Amendment.

Finally, we submit that the result urged herein can be

achieved under the Due Process Clause of the Fourteenth

Amendment. Ever since Gitlow v. New York, 268 JU. S.

652 (1925), this Court has recognized that the term ‘‘lib-

erty’’ in the Fourteenth Amendment encompasses much

more than freedom from physical restraint, and includes

the fundamental freedom upon which our democratic so-

ciety rests. Can it be doubted that if ‘‘liberty’’ includes

freedom of speech, press and assembly, it also includes

freedom to chose those who exercise the compulsory pow-

ers of government? Is not a major reason for freedom

of expression that it ensures intelligent and responsible

choice in the selection of those who exercise their just

powers by reason of the consent of the governed? What

25

does it profit a Spanish-speaking Puerto Rican that he has

the right to hear all views on public issues if he is barred

from exercising the right of suffrage on the basis of con-

clusions reached after constitutionally-protected exposure

to these views? Freedom of speech would be an illusory

right if the listeners were forbidden to act upon what they

heard.

Of course, due process extends beyond ‘‘citizens’’ to

‘‘persons.’? We do not here contend that restricting the

ballot to citizens unconstitutionally deprives non-citizens

of their liberty under the Fourteenth Amendment. Only

such deprivations as are ‘‘without due process of law’’

are forbidden by the Amendment, and it may well be held

that a requirement of citizenship is within the purview of

due process. We urge only that, for the reasons hereto-

fore stated, disenfranchisement of citizens who are literate,

though in a language other than English, does constitute

a deprivation of liberty without due process of law.

POINT TWO

The New York requirement of literacy in English

is not one reasonably related to any valid Constitu-

tional purpose but was intended to and has the effect

of discriminating against an isolated minority group

in violation of the Fourteenth and Fifteenth Amend-

ments.

In Point One, we have assumed that the English lit-

eracy requirement was in fact adopted by New York State

for the purpose of insuring intelligent voting, arguing

only that no sufficient case could be made for limiting the

26

franchise in this fashion. We here urge that the require-

ment is in fact a restriction aimed at specified groups in

the population and, as such, is a violation of the Equal

Protection Clause of the Fourteenth Amendment and the

prohibition of discrimination based on race or color in the

Fifteenth.

A. Limitations on the Power of the State

to Restrict the Right to Vote

Although a state may within certain limitations pre-

scribe the qualifications of voters as provided by the Con-

stitution of the United States, Article I, Section 2, the

basic right to vote, at least in general elections, is not

derived from state law but is ‘‘a right secured by the Con-

stitution.’’ Smith v. Allwright, 321 U. S. 649, 662 (1944).

See also, U. 8. v. Classic, 313 U. S. 299 (1941); Wiley v.

Sinkler, 179 U. S. 58 (1900) ; Ex parte Yarbrough, 110 U. S.

651 (1884). ere are several qualifications that a state

may not require of voters. Race, color, or previous con-

dition of servitude as well as sex are specifically barred

as permissible standards by the Fifteenth and Nineteenth

Amendments. Nor may a state prescribe qualifications

which contravene the Equal Protection Clause of the Four-

teenth Amendment. Nixon v. Herndon, 273 U. S. 536

(1927) ; Nixon v. Condon, 286 U. S. 73 (1932). ‘The tradi-

tional test under the Equal Protection Clause has been

whether a State has made ‘an invidious discrimination,’

as it does when it selects ‘a particular race or nationality

for oppressive treatment.’ See Skinner v. Oklahoma, 316

U. S. 535, 541 * * *.’? Baker v. Carr, 369 U. S. 186, 244

(1962) (concurring opinion). Thus, while a state has the

lawful power to alter its subdivisions, if in doing so it

27

singles out a readily isolated segment of a racial minority

for special discriminatory treatment it violates the Fed-

eral Constitution and its otherwise lawful act is overcome

by the prohibitions contained therein. Gomillion v. Light-

foot, 364 U. S. 339 (1960).

B. The Discriminatory Intent and Effect of the

New York English Literacy Requirement

A proposal that the right to vote in New York State be

limited to those literate in English was proposed at a Con-

stitutional Convention held in 1915. After full debate,

which is a matter of public record, the proposal was de-

feated. Nevertheless, it was renewed at the 1917 session

of the New York State Legislature and was approved by

both chambers. N. Y. L. 1917, pp. 2785, 2786. It was

passed again at the 1919 session of the Legislature (N. Y. L.

1919, pp. 1790, 1791), and was placed on the ballot for pop-

ular vote in the 1921 election. It was approved by the

voters that year. N. Y. L. 1922, p. 1849.

Although the constitutional provision imposing a liter-

acy test was defeated at the 1915 Constitutional Conven-

tion, the debates at the sessions of that body are the best

available evidence of the basis on which the case for the

proposal rested. (There is no public record of the debates

in the New York State Legislature.)

The provision requiring literacy in ‘‘the mother-

tongue’’ was first proposed at the Convention by Charles

H. Young who said, in support of the amendment:

More precious even than the forma of government are

the mental qualities of our race. While those stand

28

unimpaired, all is safe. They are exposed to a single

danger, and that is by constantly changing our voting

citizenship through the wholesale, but valuable and

necessary infusion of Southern and Eastern European

races * * * The danger has begun * * * We should

check it * * *. 3 New York State Constitutional Con-

vention 3012 (revised record of 1916) (emphasis

added).

The level of the arguments in favor of the proposal

is illustrated by the remarks of Gordon Knox Bell, who

said:

Gentlemen, we must stop to think of what we are.

This is not a question of nations, it is a question of

races, and when all is said and done, there is not a

man in this room who dares deny that we are an Eng-

lish race, born and bred and brought up with the

traditions of the men of England; of Anglo-Saxon

stock. Id. at 3015 (emphasis added).

Mr. Bell traced the history of the settlement of England

and, although denying that he was an ‘‘ Anglo-maniac,”’

concluded after an astounding outburst, that if there were

any greater word than ‘‘Englishman”’ it must be the word

which signifies that heritage as embodied in our language.

Id. at 3015-17.

The proposal was recognized as an attempt to prevent

the assimiliation of ‘‘alien blood’’ into the supposedly pure

Anglo-Saxon heritage of the nation by segregating and

excluding foreign-born Americans from the rights, priv-

ileges and opportunities of full citizenship. Its proponents

impugned the patriotism of Yiddish-speaking citizens and

demeaned almost every national group other than the

29

English. In opposition to the proposal, Mr. Nathan Bur-

kan made the following plea:

The highest and most priceless privilege of a citizen

is the right to participate and have a voice in the

government—the right to vote for all officials and for

the adoption and rejection of fundamental laws.

It is abhorrent to believe that those who toi! by the

sweat of their brows, who create and improve prosper-

ity, who aid in the development of the great resources

of this state and in the building up of its industries

and commerce shall be disfranchised because they

cannot comply with an irksome test. Id. at 3152-53.

Robert F. Wagner, late United States Senator from New

York, said of the proposed requirement:

* * * Obviously that proposal is directed against the

foreign born American. Remembering that the great

mass of foreigners that come annually to our shores

are assimilated into and become part and parcel of

the American people because they strive and hope and

succeed in acquiring the right to vote, can you not

recognize in the amendment a clandestine effort to

prevent this assimilation of alien blood into our citizen-

ship and to segregate and exclude the foreigner from

the rights, the privileges and the opportunities which

we have always held out to all men?

[I]n so far as you dare to go, you take from [the

foreigner] the opportunity and the privileges which

your ancestors enjoyed when they like the immigrants

of today found in this land a refuge from the very

spirit of intolerance and hate which finds expression

in this amendment. Id. at 3022-23.

30

%m short, the case for the voting restriction was striking-

ly similar to that made, during this period, in Oregon for

a statute prohibiting instruction of children in a foreign

language—that that practice was ‘‘inimical to our own safe-

ty’’ because the children would ‘‘always think in that lan-

guage.’? Meyer v. State, 107 Neb. 657, 187 N. W. 100

(1922). That decision, of course, was reversed by this

Court. Meyer v. Nebraska, 262 U. S. 390 (1923).

The period during which the constitutional provision

was thereafter approved by the Legislature and the voters,

during and after World War I, was marked by inflamma-

tion of national hatred of minority groups, particularly

aliens and recent citizens of foreign extraction. The end

of hostilities did not stem the tide. In addition to the

enactment and enforcement of various sedition, anarchy

and criminal syndicalism laws, there was widespread inter-

ference with free expression in the form of seizures of

newspaper files, restrictions on mailing rights and prosecu-

tions of educators and others for ‘‘disloyal language.’’

This period also saw the enactment of the national immi-

gration law establishing the offensive national origins quota

(recently repealed), legislation presaged by the mass de-

portations of aliens without even a semblance of due proc-

ess, characterized by Professor Zechariah Chafee as

‘‘wholesale deportation for ideas.’’ Chafee, Free Speech

in the United States 237 (1948). The free speech contro-

versy during the war and the restrictive legislation follow-

ing the war led Charles Evans Hughes to wonder ‘‘whether

constitutional government as heretofore maintained in this

republic could survive another great war even victoriously

waged.’’ Id. at 102.

1 *

Oregon enacted legislation outlawing all private and

parochial schools. Several states, like Nebraska, passed

laws making it a crime to teach foreign languages, or to

teach any subject in a foreign language, to children in grade

school. In New York, six of twelve laws characterized as

affecting freedom of speech were enacted during the period

1917 to 1921. Id. at 590-91. The mayor of the City of

New York, after the Armistice of 1919, banned the per-

formance of operas in the German language. Star Opera

Co. v. Hylan, 109 Mise. 132, 178 N. Y. S. 179 (1919).

But it was the Legislature of New York, during the

very period in which it submitted the English literacy re-

quirement for adoption, that most vividly displayed hos-

tility to the ‘‘foreign-born’’ in its notorious expulsion of

the five lawfully elected Socialist assemblymen in 1920—

truly a repudiation of government by representation and

the disfranchisement of the assemblymen’s constituents. At

a hearing likened to the Salem witch trials, amid testimony

involving a ‘‘little red book’’ in Yiddish and a fantastic

story by a young girl that one of the five had ‘‘spit upon

the American flag,’’ the speaker of the New York State

Assembly charged that the Socialist Party was ‘not truly

a political party, but is a membership organization ad-

mitting within its ranks aliens, enemy aliens and minors.’’

Despite vigorous editorial comment branding the action of

the assembly a ‘‘legislative lynching,’’ the powerful forces

spawned by extreme chauvinism and xenophobia marched

onward. See Chafee, op. cit. supra at 278-79; Waldman,

Albany: The Crisis in Government xvi, xvii, 4, 25-27, 40-

42 (1920).

32

The fact that New York’s English literacy requirement

was not in fact designed to advance intelligent voting is

shown not only by its history and background but also by

the arbitrary and unreasonable nature of some of its pro-

visions. If actually aimed at assuring that voters have

the ability to acquire information about elections, why

should New York require that persons be able to write

as well as read English? The only writing necessary prop-

erly to exercise the franchise of voting involves simply the

writing of one’s own name. Must a person be able to

communicate election information to others in order to be

able to vote intelligently? Furthermore, an exception is

made for all persons who cannot read or write English

because of physical handicaps and also for veterans. Elec-

tion Law, Sections 155, 168(6), 201. The ability of such

persons to acquire information about elections is, in many

cases, substantially less than that of persons literate only

in Spanish. These exceptions, we submit, buttress the con-

clusion that the thrust of the voting restrictions is to

penalize persons whose native language is other than Eng-

lish.

Another indication that the New York literacy-in-Eng-

lish requirement was enacted for an unlawful and uncon-

stitutional purpose rather than as a bona fide attempt to

assure an informed electorate is the ‘‘Grandfather Clause”’

contained in the provision of the New York constitution

which establishes the test. This aspect of the law is dis-

cussed in detail in the next section of this brief as an

independent reason for invalidating the test. It is, how-

ever, pertinent to note here this added indication that the

clause, as written, represents an unreasonable requirement

enacted for an unconstitutional purpose.

33

Cc. A State Literacy Test Which is Intended to

and is Effective to Discriminate Against

National Origin Groups is Unconstitutional.

For the purposes of this aspect of this brief, we do

not contend that a literacy test may never be justified as

a reasonable attempt to assure an independent and intelli-

gent electorate. Cf. Lassiter v. Northampton County Board

of Elections, supra; Stone v. Smith, 159 Mass. 413, 34

N. E. 521 (Mass. 1893). However, if state legislation estab-

lishing such a test is on its face merely a device to effect

prohibited discrimination or, though fair on its face, may

be or is employed to perpetuate discrimination, it is un-

constitutional. Davis v. Schnell, 81 F. Supp. 872 (S. D.

Ala.), aff’d mem., 336 U. S. 933 (1949). Cf. Lasstter, supra,

360 U. S. at 50, 53. Nor is a literacy test valid if literacy

is ‘used as a cloak to discriminate against one class or

group.”’ Gray v. Sanders, 372 U. S. 368, 379 (1963) (em-

phasis added).

In Pope v. Williams, 193 U. S. 621 (1904), which upheld

the reasonableness of a non-discriminatory residence re-

quirement, this Court noted that the situation would be

different where a statute presented a possibility of violat-

ing the Federal Constitution. Interestingly, the hypo-

thetical situation there contemplated as an example of an

‘extreme case’’—discrimination between persons coming

from different states (i.e. Georgia and New York)—is simi-

lar to the instant case where the proscription, in its opera-

tion, necessarily discriminates against persons coming from

Puerto Rico where Spanish is the native language as

against persons coming from the United States mainland.

The New York Legislature has singled out United States

34

citizens of Puerto Rican origin and other later-arriving

‘‘foreigners’’ who are literate only in Spanish—a readily

isolated minority group living in a localized area under

marginal conditions—and has deprived them of the vote,

one of their strongest weapons for improving their lot and

equalizing their opportunities. Cf. Carrington v. Rash,

380 U. S. 89 (1965); Mabry v. Davis, 232 F. Supp. 930

(W. D. Tex. 1964).

The words ‘‘race’’ and ‘‘color’’ as used in the Fifteenth

Amendment are not to be confined to a narrow, technical

meaning. They include nationality groups, such as non-

English speaking persons of Puerto Rican origin. See

Comacho v. Rogers, 199 F. Supp. 155, 160 (S. D. N. Y.

1961). The proponents of the New York constitutional

provision here in question referred to such nationality

groups as ‘‘races,’’ and the requirement of English literacy

was intended to discriminate on the basis of ‘‘race’’ in

violation of the Fifteenth Amendment.

In any event, discrimination based upon either ‘‘race

or place of origin’’ is unconstitutional. See Wright v.

Rockefeller, 376 U. S. 52, 58 (1964). The dissenting opin-

ion in the lower court in that case is particularly illumi-

nating:

* * * the above uncontradicted picture establishes

per se a prima facie case of a legislative intent to

draw congressional district lines * * * on the basis

of race and national origin. To me it fits four square

with Mr. Justice Frankfurter’s statement in Gomillion

v. Lightfoot * * * that the act in question was not

an ordinary geographical re-districting measure even

with the familiar abuses of gerrymandering. Although

Justice Frankfurter’s statement referred to the court’s

holding that there was a violation of the fifteenth

amendment this statement is equally apposite to the

equal protection clause of the fourteenth amendment

under Brown v. Board of Education * * * Cf. the con-

curring opinion of Mr. Justice Whittaker in Gomillion

at 349 * * * The conclusion here is, as in Gomillion,

irresistible, tantamount for all practical purposes, to

a mathematical demonstration that the legislation was

solely concerned with segregating white, and colored

and Puerto Rican voters * * *

.

* * * The pattern * * * shows that they were drawn

so that any district lines encompassing these areas

would necessarily include a very high percentage of

non-whites and Puerto Ricans * * *

We are told that the fifteenth amendment nullifies

sophisticated as well as simple-minded discrimination.

In my judgment the New York legislature has at-

tempted, in violation of the equal protection clause of

the fourteenth amendment, a sophisticated and subtle

discrimination * * * Wright v. Rockefeller, 211 F. Supp.

460, 472-75 (S. D. N. Y. 1962) (dissenting opinion)

(emphasis added).

In several recent cases, the federal courts have stricken

down discriminatory applications of voting requirements

by the states. See U. S. v. Clement, 231 F. Supp. 913

(W. D. La. 1964) ; U. 8. v. Palmer, 230 F. Supp. 716 (KE. D.

La. 1964). A literacy test designed and used to discrimi-

nate against Negroes was held to violate the Fourteenth

and Fifteenth Amendments. U. S. v. Lowisiana, 225 F.

Supp. 353 (E. D. La. 1963), affirmed, 380 U. S. 145 (1965).

Where. the purpose and effect of state requirements are

to discriminate, the law is unconstitutional and the motive

of the legislators in enacting the law is of importance in

making such determination. See U. S. v. Mississippi, 229

F. Supp. 925, 982 (S. D. Miss. 1964) (dissenting opinion),

reversed, 380 U.S. 128 (1965). The Lassiter case does not

hold that a literacy test chosen to deny, not grant, voter

privileges is free from attack.

It may be that a state can constitutionally use a literacy

test to attempt to assure that all voters are capable of

becoming sufficiently informed to make a considered judg-

ment when they cast their ballots. At the other end of

the spectrum, it is clear that a voter qualification test

designed to weed out persons who would tend to vote cer-

tain beliefs or favor certain persons or political parties

is unconstitutional. Carrington v. Rash, supra, 380 U, S.

at 94 (1965). Thus, a test barring persons who are wholly

illiterate could more easily be justified than, say, an IQ

test. Certainly, an IQ test with a minimum passing score

of 120 established on the theory that only such exceptional

persons can ‘‘properly’’ cast their ballots is repugnant to

democratic principles and unconstitutionally discrimina-

tory as well. If a Southern state were to conduct a sur-

vey of its population with respect to certain criteria which

have been held individually to constitute valid limitations

on the right to vote (e.g. one-year residence in the state,

literacy, no felony convictions) and then enacted those re-

quirements which, according to its survey, would disfran-

chise a maximum number of Negroes while permitting a

maximum number of whites to vote, would not this Court

strike down the plan?

While the New York legislators were not as blunt as

members of the Constitutional Convention which enacted

37

the Louisiana literacy test (see U. S. v. Louisiana, supra,

925 F. Supp. at 373, 374), the debates referred to above

leave little doubt that the basic motive and purpose be-

hind the enactment of the New York English literacy test

was to deprive later-arriving immigrants of their vote. The

Puerto Rican influx had not yet begun at the time the

New York test was enacted and, if there was any particu-

lar group at which the test was aimed, it was probably

the large Yiddish-speaking community. Due to unforeseen

circumstances, the most effective deprivation now occurs

not with respect to immigrants but to native American

citizens of Puerto Rican origin who have migrated to New

York, although there are also a number of American citi-

zens of the Jewish faith who are still disfranchised by

the requirement of English literacy.

Both the intent of the legislation and its actual effect

are important fields of inquiry in order to determine wheth-

er it is constitutional. See Oyama v. California, 332 U. S.

633, 651 (1948) (concurring opinion). In the Oyama case,

Justice Murphy noted that the legislation in question was

“spawned of the great anti-Oriental virus’’ that infected

the nation at the time. 7d. at 651. The New York English

literacy test was spawned from an invidious anti-foreigner

virus and the victimized class will ‘‘necessarily include

a very high percentage of Puerto Ricans’’ as in Wright

v. Rockefeller, supra. It is an unreasonable restriction

enacted for the unlawful purpose of discriminating against

non-English-speaking persons by depriving them of the

right to vote.

38

POINT THREE

The New York English literacy requirement is an

unconstitutional “Grandfather Clause” clearly viola-

tive of the Fourteenth and Fifteenth Amendments to

the Federal Constitution.

The New York constitution excludes from the require-

ment of literacy in English all persons who were ‘‘entitled

to vote by attaining majority, by naturalization or other-

wise’’ prior to January 1, 1922. Residents of New York

possessing all the qualifications of voters prior to that date

but who have never exercised their right to vote are, none-

theless, exempt from the literacy test. Ferayorni v. Wal-

ter, 121 Misc. 602, 202 N. Y. S. 91 (1923). However, any

person who establishes residence in New York after that

date must prove his literacy in English. Op. Atty. Gen.,

48 St. Dept. 179 (1933). Thus, American citizens of Puerto

Rican origin, even native-born citizens like appellant, who

had not established residence in New York prior to 1922

have not been able since that date to register and vote

in New York (although they may have voted in elections

in the United States for many years) if they are literate

only in Spanish, the language native to their place of birth

and education in the United States. By contrast, persons

who were merely eligible to vote in New York prior to

1922, although wholly illiterate, have been and are today

eligible to vote. Special assistance may be rendered only

to such illiterates who ‘‘became entitled to vote on or

before January first, nineteen hundred twenty-two.’’ Elec-

tion Law, Sections 169, 199.

39

Any possibility that the cutoff provision was reasonably

related to a valid administrative purpose is negated by

the wholly unjustified breadth of the exemption (see e.g.,

Election Law, Sections 155, 168(6)) and the unwarranted

inclusion in the exempt class of all persons then eligible

to vote although they had never voted and might not first

register until many years after the literacy. requirements

were in effect.

In Guinn v. United States, 238 U. S. 347 (1915), this

Court struck down a state-imposed prerequisite for voting

which required a literacy test in English for all residents

of Oklahoma except any person ‘‘who was, on January

1, 1866, or at any time prior thereto, entitled to vote under

any form of government or who at that time resided in

some foreign nation and (any) lineal descendant of such

person.”’ Although aimed at excluding later-arriving for-

eigners, not a minority group already residing within the

state, in all material particulars the New York test shares

the fatal defects of the Oklahoma legislation.

One of the bases of the Guinn decision was the pattern

of discrimination established by the legislation. This Court

there adopted the description of the statute given by the

Solicitor General (238 U. S. at 352, 364) :

The necessary effect and operation of the Grand-

father Clause is to exclude practically all illiterate

Negroes and practically no illiterate white men, and

from this its unconstitutional purpose may legitimately

be inferred.

40

In practical operation the amendment inevitably

discriminates between the class of illiterate whites and

illiterate blacks as a class to the overwhelming dis-

advantage of the latter.

In 1957, a Grandfather Clause similar to the one con-

sidered in Guinn, but whieh required that, to be exempt

from the special voting prerequisites, a person must have

been permanently registered to vote prior to 1908, was

declared clearly violative of the Fourteenth and Fifteenth

Amendments to the United States Constitution. Lassiter

v. Taylor, 152 F. Supp. 295, 297 (N. C. 1957). When the

matter reached this Court, the Grandfather Clause had

been repealed but this Court observed (360 U. S. at 49-50):

Appellant points out that although the cut-off date

in the grandfather clause was December 1, 1908, those

who registered before then might still be voting. If

they were allowed to vote without taking a literacy

test and if appellant were denied the right to vote

unless she passed it, members of the white race would

receive preferential privileges contrary to the com-

mand of the Fifteenth Amendment. * * *

In New York today there are persons 65 years old and

older who may vote (even if for the first time) without

taking the literacy test whereas appellant and a substantial

number of other persons similarly situated may not vote

unless they pass a test measuring literacy in English, the

exact form of preferential privilege which this Court held

clearly unconstitutional in the Guinn and Lassiter eases.

That the discrimination is based upon ‘‘plaee of origin”

rather than race is irrelevant. See Wright v. Rockefeller,

376 U. S. 52, 58 (1964).

- = CP OS

ay

While the provision exempting ‘‘lineal descendents’’

was significant and gave rise to the ‘‘grandfather’’ desig-

nat.on, the cases do not limit their reasoning to clauses

containing such a provision. In addition to emphasizing

the pattern of discrimination between voters similarly

situated, this Court in Guinn noted that the legislation (238

U.S. at 364-5):

* * * contains no express words of an exclusion

from the standard which it establishes of any person

on account of race, color or previous condition of servi-

tude prohibited by the fifteenth amendment, but the

standard itself inherently brings that result into exist-

ence since it is based purely upon a period of time

before the enactment of the 15th amendment and makes

that period the controlling and dominant test of the

right of suffrage.

The New York situation is simiJar. At the cutoff date

there were relatively few Puerto Ricans or other non-

white, foreign-speaking persons in New York who could

qualify to vote by virtue of the exemption of then-eligible

voters. The timing of the English literacy requirement

was, as we have seen, for the purpose of excluding the

expected influx of non-English ‘‘races.’’ It was also pro-

vided by statute that a certificate or diploma evidencing

completion of the 8th grade in a school in which English

is the language of instruction is acceptable proof of literacy.

Election Law, Section 168. This latter provision virtually

assures that all persons educated on the United States

mainland, where compulsory education in the English lan-

guage is the rule, will be eligible to vote although a sub-

stantial number may be functional illiterates. Thus, the

pattern of invidious discrimination established by the

Grandfather Clause is continued and reinforced.

42

That the original discriminatory purpose for enacting

the New York clause was not directed against the par-

ticular group which is most directly affected by the re-

sultant legislation is of no consequence. Quoting directly

from Guinn, but substituting ‘‘Puerto Ricans’’ for ‘‘Ne-

groes,’’ it is clear that the New York Grandfather Clause

excludes ‘‘practically all illiterate [Puerto Ricans] and

practically no illiterate white men, and from this its uncon-

stitutional purpose may legitimately be inferred.’’ Guinn

v. U. S., supra, at 352. It ‘‘discriminates between illiterate

whites and illiterate [Puerto Ricans] as a class, to the

overwhelming disadvantage of the latter.’’ Ibid. Despite

the absence of ‘‘express words of an exclusion from the

standard which establishes it of any person on account

of’? prohibited grounds, ‘‘the standard itself inherently

brings that result into existence.’’? Id. at 364, 360.

A state undoubtedly has power to enact stricter voter

requirements. However, any new requirement must be

truly prospective and free from any resultant discrimina-

tion against racial or ethnic groups, especially where it

can fairly be said that such discriminatory effect (or a

similar effect) was the purpose of ihe enactment.

* * * on a subject like the one under consideration

involving the establishment of a fight whose exercise

lies at the very basis of government a much more ex-

acting standard is required than would ordinarily ob-

tain. * * * Id. at 366.

As in the Guinn case, the whole of the one-sentence New

York constitutional provision regarding literacy in English

must fall as an unconstitutional Grandfather Clause.

43

Conclusion

In Meyer v. Nebraska, supra, this Court said (262 U. S.

at 401):

The protection of the Constitution extends to all,

to those who speak other languages as well as to those

born with English on the tongue. Perhaps it would

be highly advantageous if all had ready understanding

of our ordinary speech, but this cannot be coerced by

methods which conflict with the Constitution—a de-

sirable end cannot be promoted by prohibited means.

(Emphasis added.)

We submit that, to appellant and other Americans who

were not ‘‘born with English on the tongue,’’ the ‘‘pro-

tection of the Constitution’’ means little if they are not

allowed to vote. The provisions in the New York State

Constitution and the Election Law imposing literacy in the

English language as a prerequisite for voting and barring

from the ballot persons completely literate in another lan-

guage should therefore be held unconstitutional and the

decision of the court below should be reversed.

Respectfully submitted,

Howarp M. Squapron

Donaup S. ENGEL

Leo PFEFFER

JosePH B. Rosison

Attorneys for American Jewish Congress,

Amicus Curiae

March, 1966.