This bill could be appropriately divided into seven bills. I want to discuss first the provisions of it relating to voting rights.

I have told this story before, but it bears repeating here, because it illustrates a truth.

I don't know of anything the Department of Justice needs less than a new law relating to voting rights. There are sufficient statutes already on the books to secure to every one all of his rights under the Constitution and laws of the United States. Among them are a multitude of statutes relating to voting rights now at the disposal of the Department of Justice. There is no need for any additional legislation in this field.

When I hear the Department of Justice say it needs a new statute to enable it to enforce voting rights, I am reminded of the story about the time that John and Mary were courting. They were sitting on a bench in the moonlight in an area which was permeated by the fragrance of roses. It was a situation which would excite anyone to romance. John said to Mary, "Mary, if you wasn't what you is, what would you like to be?"

She said, "John, I would like to be an American beauty rose."

And then she turned the question on John and said, "John, if you were not what you is, what would you like to be?"

He said, "I would like to be an octopus."

Mary said, "John, what is an octopus?"

John said, "An octopus is some kind of an animal or fish or something that has a thousand arms."

Mary said, "Well, John, if you were an octopus and had a thousand arms, what would you do with them?""

John said, "I would put every one of them around you."

Mary said, "Go away, John, you ain't using the two arms you've already got."

If anybody is being wrongfully denied their right to vote anywhere in the United States, it is because the Department of Justice is not using the laws it already has in this field.

I will call attention first to section 242 of title XVIII of the United States Code. This statute bears the heading, "Deprivation of Rights Under Color of Law," and reads as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or be imprisoned not more than one year, or both.

The courts have held under this statute time and time again that any State election official who willfully denies to any qualified citizen of any race the right to vote is subject to be sent to prison for as much as 1 year and fined as much as $1,000. If there is any public official anywhere in the United States who is willfully denying to any qualified citizen of any race the right to register and vote, the Department of Justice ought to prosecute him under this statute instead of asking for new laws.

In addition to this statute, there is a section 241 of title XVIII of the United States Code which reads as follows:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined not more than $5,000 or imprisoned not more than 10 years, or both.

Under this statute any election official who conspires with another person to deny any man of any race his right to register and vote, provided he is qualified, is punishable by imprisonment for 10 years and a fine of $5,000.

As a consequence, if any election officer has offended in these fields, the Department of Justice has these two criminal statutes that can be applied.

There is another statute which is codified in title XVIII, section 371. This statute provides:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner, or for any purpose, and one or more of such persons do any act to affect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

If any public official conspires with any other person to violate the first statute I read, section 242, title XVIII, then he can be punished for conspiracy under section 371 of title XVIII. I might say to the Senator from Tennessee that the court of appeals for his circuit has recently so held, in a case which originated in Nashville, Tenn., Brown v. U.S. (204 F.2d. 247).

In addition to these statutes, there is another statute which gives to any qualified person who is wrongfully denied the right to vote, the right to recover damages against the offending election official, and anybody who conspires with him to accomplish that result or to bring a suit for preventive relief and obtain an injunction in advance if he is threatened with a denial of his right to vote. That statute is section 1983 of title 42 of the United States Code.

In addition to that, there is another statute, directed principally against a conspiracy to deny anyone any right under the Constitution or laws of the United States, and that is subsection 3 of section 1985 of title 42 of the United States Code.

This being so, there are five different statutes that can be invoked, three of them by the Attorney General, and two of them by the individual wronged, to vindicate not only the right to vote, but any other right such individual has under the Constitution or laws of the United States.

In addition to that, the Attorney General has another law at his disposal, which is Public Law 85-315, and which is commonly called the Civil Rights Act of 1957.

Under that statute, the Attorney General has the power to bring a proceeding in equity to prevent the denial of the right to vote to any person who is qualified to vote anywhere in the United States. This is a proceeding in equity which is triable by the Federal district judge without a jury. And, notwithstanding all allegations to the contrary, which might be made, it would not take a Federal judge trying a case without a jury under this statute more than a day to determine whether anyone has been wrongfully denied the right to vote on account of his race or color, and to issue an order under the statute for his registration.

This is the fourth statute that is available to the Attorney General in the voting rights field.

Now, I call attention to the fifth one.

That is Public Law 86-449, which is known as the Civil Rights Act of 1960. That is quite an unusual statute. It provides that if a district judge has tried a case under the Civil Rights Act of 1957, and found that any person has been denied the right to vote on account of his race or color, then the court, upon application of the Attorney General in that same case, can proceed to ascertain as a matter of fact whether such denial was pursuant to a pattern of discrimination against men of the original party's race. This question is also triable by the judge without a jury.

This question is presented by a motion in the cause, and the judge, by issuing an order to show cause, can limit the time for the hearing upon that question as he sees fit.

The Civil Rights Act of 1960 provides that in case the judge in a trial without a jury of the question as to the existence of a pattern finds that the original party was denied the right to register or vote on account of his race or color, pursuant to a pattern, the judge has two courses of action he can take. He can either sit himself and receive applications from persons of the same race in the same election district, and pass upon the question, as a matter of fact, without a jury as to whether such applicants are qualified to vote and have been wrongfully denied the right to register to vote, or he can delegate that authority to voting referees, and these voting referees can pass on the matter, and make their findings. These voting referees are empowered by the Civil Rights Act of 1960 to do something which I don't think has ever been authorized by the Congress of the United States before.

It provides that these voting referees can conduct the hearings on the question of an applicant's qualifications, and their being denied the right to register to vote in ex parte proceedings. This is the only case where you try a case against an election official without allowing him to be present or to be represented by counsel at the taking of the testimony on which the case is to be decided.

Then the voting referee makes his findings. And the election official is not even granted a hearing unless he can show by affidavits to the satisfaction of the judge that he has a meritorious defense.

In other words, the court passes on the question of whether the election official has a meritorious defense before hearing his evidence, except in the form of affidavit.

This statute goes ahead and says that if a man's application is filed too late to be heard before the election, then he can be allowed by the district judge to vote provisionally. Under that statute, there is suf

ficient power in the Office of the Attorney General to secure the registration of any qualified voter anywhere in the United States in a proceeding where the right to a jury trial does not exist and which can be heard speedily by the judge or a voting referee appointed by the judge. These things being true, there are three criminal statutes in existence under which the Attorney General can prosecute any election official who denies to any qualified voter of any race the right to register and vote. Besides, there are two additional statutes in existence, the Civil Rights Act of 1957 and the Civil Rights Act of 1960, under which the Attorney General can bring civil actions triable before Federal district judges without juries to prevent any qualified citizen from being denied the right to register or vote on account of his race or color. But the Department of Justice is not satisfied to have five statutes available to it for use in the voting rights field. It demands further legislation, which it certainly does not need. It asks for two new laws. The Department wants a statute creating a presumption that if any person has gone to school for 6 years, he shall be presumed to be literate even if he can't pass a literacy test.

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I don't believe that a law creating a presumption of that kind is valid. It would be contrary to the Constitution of the United States which provides in three separate places that the power to prescribe qualifications for voting, including literacy tests, belongs to the States and not to the Federal Government.

The first of these sections is section 2 of article 1. This says:

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.

When the Constitution was amended by the addition of amendment 17, to provide for the direct election of Senators, these same words were incorporated in the 17th amendment, which says:

The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.

Then the second article of the original Constitution says in section 1: Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.

The courts have held under that provision that the State legislature of each State has the sole power to determine how presidential electors shall be chosen in such State.

The Supreme Court has held in the following cases that under these three provisions of the Constitution the power to prescribe qualifications for voting, including the power to prescribe literacy tests, belongs to the States, and not to the Congress. These decisions are Williams v. Mississippi, 170 U.S. 213; Guinn v. United States, 238 U.S. 347; and Lassiter v. Northampton County Board of Elections, 360 U.S. 45.

This last case is a unanimous decision handed down by the Supreme Court of the United States as it is presently constituted, with the exceptions of Justices White and Goldberg, who have ascended the Supreme Court bench since that decision was rendered.

Senator DIRKSEN. What was the date of that?

Senator ERVIN. The Lassiter case was handed down in 1959.

21-579-64--3

How, in the light of those three constitutional provisions and those decisions of the Supreme Court, any legally trained man can advocate with any degree of conviction that Congress can nullify those three constitutional provisions by establishing a Federal presumption is something which exceeds my capacity of comprehension.

I will mention one other thing

Senator JOHNSTON. Senator, I think you ought to give your background. Let the people know who is speaking to us here today. I would like to have your record on the courts.

Senator ERVIN. Senator, I think I can truthfully assert that I have devoted more of my life to law than I have to politics. I spent 15 years actively practicing law and 15 years serving on courts. I served as a judge of the Superior Court of North Carolina for 7 years. The superior court is a court of general jurisdiction. I also served slightly over 6 years on the Supreme Court of North Carolina.

I want to mention another thing at this point. The second request of the Department of Justice for additional legislation in the voting rights field, which is incorporated in title I of the bill, is even more drastic than the ex parte proceedings authorized by the Civil Rights Act of 1960.

Although it now has five separate statutes; to wit, section 242 of title 18, section 241 of title 18, section 371 of title 18, the Civil Rights Act of 1957, and the Civil Rights Act of 1960, available to it in voting rights cases, the Department of Justice is not content. It demands that Congress enact into law the provisions of title I and especially those beginning on line 10 of page 5 and ending on line 12 of page 9. These provisions would make two drastic amendments to the Civil Rights Act of 1960. In the first place, these provisions would deprive Federal district judges of the power to select voting referees of their own choosing and compel such judges to name voting referees from panels by the Federal judicial council of the circuit. In the second place, these provisions of title I provide, in effect, that the Attorney General may rob State election officials of their powers to determine the qualifications of voters under existing law and transfer such powers to voting referees selected from panels established by the Federal judicial council of the circuit merely by requesting the court to find that a voter in a particular election district has been denied the right to register to vote because of his race and merely by alleging that fewer than 15 percent of the total number of voting-age persons of the same race are registered in such election district.

In other words, the Department of Justice is asking Congress to enact a new law which will enable the Department of Justice to obtain what is equivalent to a final judgment merely by making certain allegations in a complaint or a motion without any trial being had and without any evidence being offered and without any findings being made by the court. The due process clause of the fifth amendment applies to the Federal Government and all of its departments. Due process of law is a law which proceeds upon inquiry and renders judgment only after a hearing. This being true, these provisions cannot possibly be reconciled with the due process clause of the fifth amendment.

To be sure these provisions provide that at some time after such final judgment is rendered in favor of the Department of Justice upon its naked and unsupported allegations, the case may be tried