administrative process in time for all the qualified people affected to register and vote in the next primary and next election.

Attorney General KENNEDY. Senator, I am not questioning the situation in North Carolina. But there are situations in other States where individuals are being discriminated against on grounds of their race. I think you have first to examine whether this legislation is needed, examine what the facts are. I would be glad to go into them. I went, in my statement, into some examples, but I have hundreds of examples. I have a whole book here, Senator, which I would hope you would look at and read and see the kind of practices going on at the present time in the United States.

If I may just explain, I think that first you have to reach the conclusion whether there is a need for this kind of legislation. I think that there is definitely a need for this kind of legislation.

Then you try to adapt legislation which will meet that need, which will remedy the situation. But if we proceed on the basis that there isn't this kind of discrimination, then I think that we are not talking about the same subject.

I would agree with you. I think if there is not the need for this legislation, Senator, then we should not be offering the legislation. Senator ERVIN. But the thing that I

Attorney General KENNEDY. Could I offer the committee this book, which gives some examples?

The CHAIRMAN. The book will be attached to the testimony.

(The document referred to will be found in the files of the committee.)

Senator ERVIN. The thing I object to is for you to ask for new laws which deny people who are obeying the law their rights and their powers because some other people are offending.

What you should do would be to prosecute the people who offend instead of trying to rob the innocent of their rights.

Attorney General KENNEDY. I don't think anybody is being hurt by this, Senator.

All we are doing here in this legislation, as you have explained, is to say that if a State sets up a qualification of literacy, that there should be a presumption that if an individual has completed the sixth grade he is literate.

It does not have to be accepted. It can be contested in the courts, it can be contested all the way up. There is no problem about it. Nobody is hurt, Senator.

Senator ERVIN. I think law itself is hurt when an artificial presumption is created for the purpose of dispensing with proof.

I think we monkey with justice when we establish an artificial presumption to be used to dispense with proof. That is my honest opinion.

Attorney General KENNEDY. I think it has been established at various times by those who have studied the situation that, if an individual has completed the sixth grade, he should be considered literate. This is not something established by the Department of Justice but by many others.

Senator ERVIN. Literacy tests contemplate that inquiry will be made to see if an applicant for voting privileges can read and write.

Attorney General KENNEDY. That is the difficulty, Senator. Who is making that determination? The registrar asks a Negro to read a particular passage and says he doesn't like the particular way he pronounces the words, so he says, "You can't do it."

Senator ERVIN. Why don't you prosecute that registrar?

Attorney General KENNEDY. We have a difficult time in some States having any kind of prosecution. I take you back to Oxford, Miss. We took the strongest cases we had in connection with the disturbances which occurred when James Meredith was registering at the University of Mississippi and presented them to a grand jury.

Not one of those people was convicted in the State of Mississippi. Senator ERVIN. Maybe they didn't deserve it.

Attorney General KENNEDY. I would say this: There have been in the field of voting a number of cases presented to grand juries and we have a very difficult time. I have to make these determinations all over the country. I am just telling you, Senator, and I think you could find out, as I said to you the last time, find out from your colleagues that you have a very, very difficult time in four or five of these States. Not every State in the South, certainly, but in four or five of these States, you have a very difficult time, when it is a contest between a Negro and a white person, for the Negro to get equal justice. Senator ERVIN. And for that reason you would deprive all of the law-abiding officials of rights that you would have to accord to an Al Capone.

Attorney General KENNEDY. I don't think that is correct, Senator. Senator ERVIN. You would deny them trial by jury.

Let's see if we can agree on something about this.

I call your attention to section 2 of article I of the Constitution:

The House of Representatives shall be composed of members chosen every second year by the people of the several States and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

I also want to read in this connection the 17th amendment to the Constitution:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for 6 years; and each Senator shall have one vote. The Electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State leigslature.

I will now read you a portion of section 1 of article II :

Each State shall appoint in such manner as the legislature thereof may direct, a number of electors, equal to the whole numebr of Senators and Representatives to which the State may be entitled in the Congress.

I will ask you if the Supreme Court has not held in Williams v. Mississippi (170 U.S. 225), Guinn v. United States (238 U.S. 347), and Lassiter v. Northampton Board of County Electors (360 U.S. 45), that these three provisions of the Constitution give the States the power to prescribe the qualifications of voters and that such power includes the power to prescribe literacy tests?

Attorney General KENNEDY. That is correct, Senator. I think there is no question that it is in the power of the States to establish the qualification of its voters and the State does have the authority to establish a literacy test.

I think that as long as we are putting in all of the provisions of the Constitution dealing with this matter, we might also put in the 15th amendment.

Senator ERVIN. Yes; the 15th amendment provides that neither the United States nor a State can deny or abridge the right of a citizen of the United States to vote on account of race, color, or previous condition of servitude. But a State can determine whether any individual of any race is literate, can it not?

Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. If I may be facetious, I can understand why the President would want to do something about literacy tests. I have never seen any of his writing but his signature. If the rest of his writing is like his signature, I would have to say, as far as his writing is concerned, he is illiterate.

Attorney General KENNEDY. I am afraid it runs in the family, Senator.

Senator ERVIN. Anyway, you ask Congress to create this presumption for use in lieu of determining whether a man possesses the literacy qualifications prescribed by State law.

Attorney General KENNEDY. I am sorry, Senator.
Senator ERVIN. I will strike that out.

You wish Congress to authorize this presumption in order to avoid the necessity of determining as a question of fact in the first instance whether a man possesses the qualifications prescribed by literacy tests. Attorney General KENNEDY. No; I think that that necessity still exists. I think the presumption will help, however.

Senator ERVIN. This is a sort of shortcut, isn't it?

Attorney General KENNEDY. It will be of assistance to Negroes voting in the United States.

Senator ERVIN. It will be a shortcut?

Attorney General KENNEDY. A shortcut to them? They have been waiting for 100 years.

Senator ERVIN. Those who advocate so-called civil rights bills keep talking about the Civil War having ended 100 years ago but unfortunately they keep Reconstruction alive with their demands for unwise legislation in the so-called civil rights field.

I now invite your attention to the portion of the bill which begins on line 10 of page 5 and ends with line 16 on page 6. Let me state my understanding of the meaning of this passage. I will appreciate it if you will advise me whether my understanding coincides with yours. I interpret this passage of the bill to mean this:

Whenever the complaint filed by the Attorney General in any proceeding under the Civil Rights Acts of 1957 and 1960 requests the district judge to make a finding as to whether the denial of the right to vote of the original party involved in the case was pursuant to a pattern or practice applying to persons of his race in the election district involved and alleges in addition to such request that fewer than 15 percent of the total number of voting age persons of the same race residing in such election districts are registered, then the district judge, acting either in person or through voting referees selected by him from a panel named by the judicial council of the circuit, forthwith would receive applications for registration to vote from other persons of the same race residing in the election district and pass upon the qualifica

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tion of such applicants to vote and order their registration for voting without the Attorney General having to prove by any testimony the truth of his allegations and without the State election officials of the election district being given any notice of any trial or any opportunity to disprove the truth of the Attorney General's allegations.

In other words, the Department of Justice would be granted the relief sought by it without notice or a trial being had.

Attorney General KENNEDY. I would say, Senator, if we went through and explained exactly what the bill does and what the referees would do I think that would be helpful.

Senator ERVIN. I am not asking what action the district judge or the voting referees take. I am asking if the district judge or the voting referees appointed by him would not be called into action merely upon the Department of Justice filing a complaint and requesting the finding of a pattern and alleging that fewer than 15 percent

Attorney General KENNEDY. They would not necessarily be called into action. It would be up to the court to make that determination. Senator ERVIN. Where is the court given any power to conduct any hearing before he or the voting referees take action?

Attorney General KENNEDY. The court can either hear the applications itself or it can appoint referees.

Senator ERVIN. That is the point I am getting at. If the Department of Justice made this request and this allegation in its complaint, then the court would either have to pass upon the applications of these people to register or it would have to appoint voting referees to do so; wouldn't it?

Attorney General KENNEDY. That is correct.

Senator ERVIN. In other words, the Department of Justice would get a judgment in the case which would divest the State election officials of their prerogatives to perform this function and transfer those prerogatives either to the judge or the voting referees appointed by the judge without having to prove the truth of the allegation or without any hearing being had?

Attorney General KENNEDY. No, Senator.

Senator ERVIN. What hearing is provided for?

Attorney General KENNEDY. You said the referees would replace the registrars, here and also earlier in your statements. The ordinary registrars would not be replaced, Senator. What would happen is that in the approximately 190 counties which have fewer than 15 percent of the Negroes registered to vote. The Department of Justice makes an investigation, and we determine that there is a pattern in that area of individuals being discriminated against because of the fact of their race, or color, we then bring an action in court. The judge can either appoint voting referees or he can hear the cases himself.

An individual-going to what actually happens: An individual wants to register. He goes up after this complaint has been made. It has to be afterward. He attempts to register. He goes to the local registrar, after this complaint has been brought in these particular counties. The registrar turns him down. The individual feels that he has been turned down because of his race, the fact that he is a Negro. He can then go to the court, or if the court has appointed a referee, he can go to the referee and complain that he was turned down.

case.

The referee and/or the court would apply the standards that have been established by the State for registration. The referee assume that the court has appointed a referee, the referee would hear the Then he would make a determination-assume that he made a determination, that the individual could register. He would then send that case to the judge. The judge then would make the final determination as to whether the individual could or could not be registered. That could be contested by the local registrar or the county officials. There would be a case on whether or not this particular individual should be registered. If the county or the local officials lose that case, they could take an appeal all the way up to the Supreme Court.

Senator ERVIN. The case would not even have to be tried before the applicants were registered to vote.

Attorney General KENNEDY. No, Senator; that is not correct. Senator ERVIN. You talk about the Department of Justice making an investigation and determination. The determination of the Department of Justice would be binding on nobody.

Attorney General KENNEDY. That is correct. You mean on the 15 percent, just so I understand you correctly?

Senator ERVIN. On this provision.

Attorney General KENNEDY. On the question of the 15 percent? Senator ERVIN. Yes.

Attorney General KENNEDY. That is correct; it would be binding. Senator ERVIN. Let's get back to the question I asked. Does not this provision provide that if the Attorney General requests in his complaint that the court make a finding as to whether a pattern exists and alleges in addition that fewer than 15 percent of the original party's race are registered in the election district, then the judge would automatically either pass upon the qualifications for registration of applicants of the same race or delegate the authority to do so to voting referees without any trial being had to determine the truth of the allegation made by the Attorney General.

Attorney General KENNEDY. But no harm has been done up to that point. Nobody has been registered-everybody registered is an individual case. Nobody is registered until the case is passed on by a judge and can be appealed to the circuit court or Supreme Court.

You mentioned somebody being hung before he is tried. Nothing has happened. Nobody is registered until there has been a hearing. Senator ERVIN. Under the Civil Rights Act of 1960, none of these things can happen until it is proved that a pattern exists. This bill would dispense with proof of the pattern, would it not, in these 15percent instances?

Attorney General KENNEDY. But, Senator, no individual could be registered unless he met the qualifications established by the State, and that determination would be made by a judge. It would be contested and could be appealed. All of these cases are decided on an individual basis.

Senator ERVIN. Well, Mr. Attorney General, would not that actually take place without there ever being any decision made as to the existence of a pattern or as to the existence of fewer than 15 percent of the individual's race being registered?

You wouldn't have to prove those things to be true before obtaining the relief you seek.