# Amicus Curiae Brief — Cardona v. Power

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0281%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1966
- **Citation:** 384 U.S. 672

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0281%3A06. Public record. Not legal advice.