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The Civil Rights Division attributes part of its difficulties in administering the 1957 Act to lack of access to local registration records. This Commission has also met with such difficulties. But even if a law were adopted to guarantee such access and even if the Attorney General should bring civil suits for preventive relief in a larger number of districts where there are presently "reasonable grounds to believe" that persons are being deprived of their right to vote, there is little reason to believe that such litigation would afford adequate relief.
The history of voting in the United States shows, and the experience of this Commission has confirmed, that where there is will and opportunity to discriminate against certain potential voters, ways to discriminate will be found. The burden of litigation involved in acting against each new evasion of the Constitution, county by county, and registrar by registrar, would be immense. Nor is any effective remedy available at present for a situation where the registrars simply resign.
If any State were to pass a law forthrightly declaring colored citizens ineligible to vote, the Supreme Court would strike it down forthwith as in flagrant violation of the Fifteenth Amendment. The trouble, however, comes not from discriminatory laws, but from the discriminatory application and administration of apparently nondiscriminatory laws.
Against the prejudice of registrars and jurors, the U.S. Government appears under present laws to be helpless to make good the guarantees of the U.S. Constitution.
VOTING: FINDINGS AND RECOMMENDATIONS
"To secure these rights," declared the great charter of American liberty, "governments are instituted among men, deriving their just powers from the consent of the governed." The instrument by which consent is given or withheld is the ballot.
Few Americans would deny, at least in theory, the right of all qualified citizens to vote. A significant number, however, differ as to which citizens are qualified. None in good conscience can state that the goal of universal adult suffrage has been achieved. Many Americans, even today, are denied the franchise because of race. This is accomplished through the creation of legal impediments, administrative obstacles, and positive discouragement engendered by fears of economic reprisal and physical harm. With those Americans who of their own volition are too apathetic either to register or, once registered, too apathetic to vote, this report does not concern itself. But with denials of the right to vote because of race, color, religion, or national origin, this Commission and the Congress of the United States are urgently concerned.
The studies of the Commission on Civil Rights reveal that many Negroes are anxious to exercise their political rights as free Americans and that they have made some progress. Our investigations have revealed further that many Negro American citizens find it difficult, and often impossible, to vote. An attempt has been made to gather and assess statistics and facts regarding denial of the right to vote. This task has required careful analysis and understanding of the legal impediments.
The Commission has sought to evaluate the extent to which there is an obligation on the part of the Federal Government to prevent denial of the right to vote because of discrimination by reason of color, race, religion, or national origin. This is what Congress asked. The scope of Federal power to protect the suffrage depends on whether interference comes from State and local officers or from private persons; or whether improper voting procedure alone is involved, or whether the interference is based on race or color, and on the nature of the election itself, whether State or national.
Article I, section 2, of the U.S. Constitution has long stood for the proposition that while the qualifications of electors of Members of Congress are governed by State law, the right to vote for such representatives is derived from the U.S. Constitution. Article I, section 4, authorizes Federal protection of voting in Federal elections against interference from any source. The Fourteenth Amendment affords protection against State interference with the equality of opportunity to vote in any election. The Fifteenth Amendment prohibits any action by the United States or a State, in any election, which interferes with the right to vote because of race or color or previous condition of servitude. The Seventeenth Amendment provides that a person possessing State qualifications has a right to vote which is derived not merely from the constitution or the laws of the State from which the Senator is chosen, but has its foundation in the Constitution of the United States. The Nineteenth Amendment supports action in any election against State interference with the right to vote because of sex.
On many occasions our Nation has found it necessary to review the state of the civil rights of its people. During the period 1776 through 1791 civil rights were of prime concern in the drafting of the Declaration of Independence, the writing of the Constitution and the Bill of Rights. A new concept of liberty emerged. It was almost immediately challenged by the Alien and Sedition Acts of 1798. Then, prior to, during, and after the War Between the States an appraisal of civil rights culminated in the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments. The most recent review prior to 1957 was initiated by Executive Order 9808 promulgated by President Harry S. Truman on December 5, 1946, establishing the President's Committee on Civil Rights. This culminated in the 1947 report of the Committee entitled "To Secure These Rights." Many recommendations were made in the voting field. Twelve years have passed since that report was issued. Without attempting to evaluate specific changes other than those reflected in the body of our report on voting, it has become apparent that legislation presently on the books is inadequate to assure that all our qualified citizens shall enjoy the right to vote. There exists here a striking gap between our principles and our everyday practices. This is a moral gap. It spills over into and vitiates other areas of our society. It runs counter to our traditional concepts of fair play. It is a partial repudiation of our faith in the democratic system. It undermines the moral suasion of our national stand in international affairs. It reduces the productivity of our Nation. In the belief that new legislation is needed, we submit for consideration of the President and the Con
gress the following recommendations which we believe will help Americans to make good our declarations of national purpose.
REGISTRATION AND VOTING STATISTICS
The Commission study of voting revealed that information on voting turnout in the United States is incomplete. Data on voting turnout among specific racial groups, particularly on a comparative basis for States or sections, was impossible to obtain except for fragmentary material provided by the Survey Research Center of the University of Michigan, Elmo Roper & Associates, and the Gallup Organization. Official State sources are of only limited help. Some States report total registration figures, in some cases broken down by counties. Other States do not report such figures. To know the extent of nonvoting requires a standard, and the one usually adopted is the potential vote; that is, the total number of citizens of voting age. This is an inexact standard because, in any year, millions of citizens are ineligible to vote because of State residence and other requirements. If it were possible to have reliable registration figures, State by State and county by county, the computation of voting turnout among those qualified to vote would be simple. Millions of citizens are eligible to register but neglect to do so and their number can be more accurately estimated if reliable registration figures are available.
The Commission finds that there is a general deficiency of information pertinent to the phenomenon of nonvoting. There is a general lack of reliable information on voting according to race, color, or national origin, and there is no single repository of the fragmentary information available. The lack of this kind of information presents real difficulties in any undertaking such as this Commission's.
Recommendation No. 1
Therefore, the Commission recommends that the Bureau of the Census be authorized and directed to undertake, in connection with the census of 1960 or at the earliest possible time thereafter,1 a nationwide and territorial compilation of registration and voting statistics
1 The Commission has been informed that the 1960 decennial census forms were "frozen" in December 1958. This means that the content of the 1960 census cannot now be changed through addition of new material. In fact, the forms to be used in taking the census are in the process of being printed. The Commission feels that there is such a compelling need to collect these statistics that Congress should determine the feasibility of having a supplementary census.
which shall include a count of individuals by race, color, and national origin who are registered, and a determination of the extent to which such individuals have voted since the prior decennial census.
AVAILABILITY OF VOTING RECORDS
In its effort to discharge its duty to "investigate" formal complaints of denial of the right to vote by reason of race and color, the Commission found it necessary to examine the registration and voting records kept by local officials pursuant to provisions of State law. In both Alabama and Louisiana, the two States which led in the number of voting complaints received by the Commission, the Commission and its staff encountered obstacles in its effort to examine records. These obstacles were erected upon existing State laws, or interpretations thereof, by State officials; they were at least partially effective as a deterrent to the Commission's discharge of its duty.
Specifically, officials of the State of Alabama interpreted constitutional provisions vesting adjudicatory powers in Boards of Registrars to pass upon applications as precluding examination thereof by a nonjudical body of the Federal Government. This interpretation was held to be without merit by the Federal courts. Alabama officials further interpreted custodial and repository provisions of State law as precluding production of the records at the Commission's hearing. By compromise agreement, some of the records were examined by the Commission staff after the hearing.
Officials of the State of Louisiana interpreted provisions for examination of the State registration and voting records as prohibiting such examination by the Commission staff. This interpretation, similar to the Alabama refusal, necessitated exercise of the Commission's subpena power, and unnecessarily delayed the Commission's efforts to evaluate the merits of the complaints in both States.
Furthermore, after records in only one-half of the counties being investigated in Alabama had been examined, the State legislature passed a bill which permits the destruction of application forms of persons denied registration. Such forms are essential to any investigation of denials of the right to vote.
The Commission finds that lack of uniform provision for the preservation and public inspection of all records pertaining to registration and voting hampers and impedes investigation of alleged denials of the right to vote by reason of race, color, religion, or national origin.