Senator ERVIN. The Civil Rights Act of 1957 authorizes the Department of Justice to bring a civil action in equity, triable before a Federal district judge without a jury, to prevent the deprivation of the right to vote of any qualified voter on the ground of race or color, does it not? Attorney General KENNEDY. I believe so, Senator. Senator ERVIN. And the only issues that will be involved in a case of that kind would be these two: First, whether the man was qualified to vote according to the law of the State; and second, whether he has been deprived of his right to vote? Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. And it ought not to take a Federal judge more than a few hours to determine both of those questions, sitting as he does without jury. Attorney General KENNEDY. That is what you would think, Senator. Senator ERVIN. That is what I know. At least I am convinced that I know. Now, under the Civil Rights Act of 1960, a Federal judge_who finds that just one man has been denied his right to vote by a State or local election official in a particular district can be asked by the Attorney General to determine another question; namely, whether that denial was based upon the man's race or color, can he not? Attorney General KENNEDY. That is correct. Senator ERVIN. And under the Civil Rights Act of 1960, that issue does not have to be tried by the district judge in an original action, but can be tried under an order to show cause or under a motion made by the Attorney General, can't it? Attorney General KENNEDY. That is correct. Senator ERVIN. And the Federal judge can set the time for the hearing on it at virtually any time he sees fit in the order to show cause. Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. And the Federal judge tries that issue without a jury? Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. Now, if the Federal judge finds, under the Civil Rights Act of 1960, that the denial of the right to vote covered by the Civil Rights Act of 1957 was pursuant to a pattern applying to the members of that particular man's race, then the Federal judge can receive applications from anybody else of that same race in that election district, and determine their qualifications to vote, or appoint voting referees to make such determinations. Attorney General KENNEDY. That is correct. Senator ERVIN. These voting referees can set down the application for hearing any time the judge permits them to do so, and they take the evidence to determine whether applicants are qualified in what we lawyers call an ex parte proceeding, don't they? Attorney General KENNEDY. That is correct. Senator ERVIN. To put that in plain English, it means that the voting referees try the cases and make their decisions in the absence of the election official whose conduct is in question and without giving him any opportunity to testify or to be represented by counsel. Is that not true? Attorney General KENNEDY. This is on the legislation that is already on the books? Senator ERVIN. Yes. Attorney General KENNEDY. That is correct. Senator ERVIN. Then the voting referee makes his report to the judge and the election official does not get any hearing whatever or any opportuity to present his side of the case unless he files affidavits with the judge which satisfy the judge that he has a meritorious defense. Attorney General KENNEDY. Then the judge may hear it. Senator ERVIN. In other words, under the Civil Rights Act of 1960, the judge can deny the election official whose conduct is involved any right whatever to present any oral testimony to justify his ruling unless the election official first convinces the judge by affidavits that his rulings were justified. Attorney General KENNEDY. The judge would make the decision as to what should be heard. Then he would make the final determination. Then, of course, it could be appealed. Senator ÉRVIN. But if staying the order of the judge pending the appeal might interfere with the applicant's voting in an election, then the judge's order could not be stayed by the appeal, could it? Attorney General KENNEDY. That is correct. Senator ERVIN. Doesn't the Civil Rights Act of 1960 provide further that if a person covered by the act files an application to have the judge or the voting referee pass on his qualifications and it is not possible to hold a hearing on the application and have his qualifications determined before the election, he may nevertheless be permitted by an order of the district judge to vote in the election, "vote provisionally," I believe the statute says? Attorney General KENNEDY. Yes. If he makes his application, I believe, within 20 days of the time of the election, and, if the application is undetermined by the election date, he can vote provisionally in the election. Senator ERVIN. I think the act also contains the provision that this is true not only if he files it within 20 days of the election, but also if his application has not been heard by election time, regardless of when it was filed. That is my recollection of the statute. Attorney General KENNEDY. We can check that, Senator. So we have already upon the Federal statute books three criminal statutes and two civil statutes which can be invoked by the Department of Justice to vindicate the right of any qualified citizen to register to vote or to punish any election official who willfully denies him the right to do so? Attorney General KENNEDY. That is correct, sir. Senator ERVIN. And still the Department of Justice feels it needs. more legislation? Attorney General KENNEDY. That is correct, Senator. Senator KEATING. Would the Senator from South Carolina yield on that point? Senator JOHNSTON. Yes. Senator KEATING. I beg your pardon-North Carolina. I apologize for referring to you as the Senator from South Carolina. Senator ERVIN. That is all right; South Carolina is a very great State. Senator KEATING. So is North Carolina. Do any of the statutes which have been referred to by Senator Ervin authorize the Attorney General to bring civil injunctive suits by the Attorney General except in voting cases? Attorney General KENNEDY. They do not, Senator. Senator KEATING. Am I correct that it is the feeling of the Department of Justice that that power is essential in the school and public accommodation cases that these statutes have practical consequences? Attorney General KENNEDY. That is correct; I hope we will be able to develop further why we feel that the legislation we have requested in the field of voting is also necessary, even though there are at the present time the three criminal statutes and the acts of 1957 and 1960. But I expect Senator Ervin is going to develop that. Senator ERVIN. I am going to try to develop a lot of things, because I am trying to preserve some of the economic rights, some of the legal rights, and some of the personal rights which thousands of people have purchased for us with their prayers, their tears, their sweat, and their blood. And it will take a little time to do that, because it took them hundreds of years to purchase such rights for us. Attorney General Kennedy. Attorney General KENNEDY. Those were Negro people as well as white people, Senator. Senator ERVIN. Yes; and these rights belong to the Negro people as well as to white people and I am fighting to keep it for them as well as for white people. As I construe title 1, which relates to voting rights, the Department of Justice is asking that it be given three separate powers additional to the powers they have under the three criminal statutes and the two civil statutes we have been discussing. Attorney General KENNEDY. That is correct, Senator. Senator ERVIN. The first of these is contained in lines 22, 23, 24, and 25 on the bottom of page 4 and lines 1, 2, 3, 4, 5, 6, 7, on page 5, as I construe it. This portion of the bill reads as follows: If, in any such proceeding literacy is a relevant fact, it shall be presumed that any person who has not been adjudged an incompetent and who has completed the sixth grade in a public school in, or a private school accredited by, any State or territory or the District of Columbia where instruction is carried on predominantly in the English language, possesses sufficient literacy, comprehension, and intelligence to vote in any Federal election as defined in subsection (f) of this section. That is one of them, isn't it? Attorney General KENNEDY. That is correct. Senator ERVIN. Mr. Attorney General, do you seriously think that Congress can create a Federal presumption and thereby nullify the provisions of the Constitution which vest in the State the right to prescribe the qualifications for voting, including the right to prescribe a literacy test? Attorney General KENNEDY. I don't believe that the Federal Government can establish the qualifications for voting, Senator, and we have not done so in this legislation. Senator ERVIN. But you are trying to nullify the power of the States to prescribe the qualifications for voters by a presumption that, if a person has attended a school as defined in the bill for as much as 6 years, he shall be presumed to be literate? Attorney General KENNEDY. No, we are not, Senator. Attorney General KENNEDY. The qualifications that are required in the State are a requirement of literacy. Under the 15th amendment, the Federal Government has a responsibility to see that all of our citizens have the right to participate in elections. We are not establishing qualifications for voting, we are protecting the right to vote. Senator ERVIN. You are saying that the court shall not inquire into whether an individual possesses a prescribed qualification for voting, are you not? Attorney General KENNEDY. Would you repeat that, Senator? Senator ERVIN. Does not this bill provide that there could be no inquiry into the question as to whether one possesses the literacy qualification for voting? Attorney General KENNEDY. The bill does not say that, Senator. Senator ERVIN. It says it will be presumed. Attorney General KENNEDY. That is correct. Senator ERVIN. Does not the presumption prohibit an inquiry? Attorney General KENNEDY. Senator, as I have testified here, we found that there is a pattern of discrimination against individuals in certain States, a pattern of discrimination against them because of their race. Individuals have not been permitted to register to vote and participate in elections because of their race. Now, that right is protected under the 15th amendment. The way that that has been done, the pattern that has been followed, is that an individual is denied the right to register on the grounds that he is illiterate. A white person comes up and has completed the second or third grade, has trouble writing his name, but the registrar allows him to register and says he is literate. A Negro comes up, who is a college professor, or might have an advanced degree of some kind, and the same registrar refuses to permit him to register on the grounds that he is illiterate. Now, we are attempting to deal with that kind of problem. It is a pattern that has been followed and what we are saying is that if a State wants to establish a literacy qualification, there should be a presumption that if an individual has finished and completed the sixth grade, he is literate. But that can be contested then in the courts. Senator ERVIN. Yes; but the Government would not have to prove its case at all, would it? Attorney General KENNEDY. I don't see that that follows, Senator. Senator ERVIN. It does, because all the Government would have to show would be that he had completed the sixth grade. That is all the Government would have to show. Then it would be presumed that he was qualified under the literacy test. Attorney General KENNEDY. That is correct; then if he is turned down it would be contested in the courts. All there is here, Senator, is a presumption. Senator ERVIN. Mr. Attorney General, there are a great many States in this Union that have literacy tests. Attorney General KENNEDY. That is correct. Senator ERVIN. And not all of them have been adopted in States which are inhabited by sinful southerners. Attorney General KENNEDY. That is right. Senator ERVIN. Do you say election officials in all of these States commit the offenses which you have described? Attorney General KENNEDY. Not at all, Senator, last year we contacted States which have literacy tests and most of them feel, Senator, that this type of legislation would not interfere in the slightest in their States. Some States that have protested are the States where literacy tests have been used to discriminate against Negroes. Senator ERVIN. And you would have Congress adopt a law to govern all men and to deny an inquiry as to the possession of qualifications in cases where there was no allegation that an election official had not acted properly. Attorney General KENNEDY. Senator, you add all those things and that is not correct. Senator ERVIN. I am not adding this presumption. Attorney General KENNEDY. Yes, you are. It is a presumption. Then it can be tested in the court, Senator. It is not automatic. There is a presumption that if you have a literacy test, and the individual concerned has completed the sixth grade, there is a presumption that he is literate. Senator ERVIN. In view of the way this is worded, the presumption is also that an idiot or an insane person who completed the sixth grade is entitled to vote, unless he has been legally judged incompetent. Attorney General KENNEDY. Senator, there is not going to be any difficulty about that. All the State has to do is turn him down. Senator ERVIN. There would be a difficulty in this if Congress creates the presumption in the language of this bill, because it would apply to them. Attorney General KENNEDY. That is correct. Then the State turns him down on the grounds that he is an idiot. That is no problem, Senator. Senator ERVIN. Let's see what Attorney General KENNEDY. Senator, so that we are talking about the same situation, could you agree that there has been this pattern of discrimination? Because, unless you agree with the facts, we are not discussing the same subject. Senator ERVIN. I only know I have not conducted any investigation in that field. I will tell you what I did find out in 1957. When your predecessor, Mr. Brownell, came down and cited three alleged discriminations against Negroes in 3 precincts out of the 2,000 in my State as a reason for changing the entire election laws of the United States, I inquired into his charges and I found out that the North Carolina Board of Elections had corrected those alleged discriminations by |