He does not convict. He does not know in most of the cases what the facts are going to turn out to be after everyone has had his day in court. But if he has a prima facie case, it is his obbligation to proceed. Senator ERVIN. Does the Attorney General have to bring suit every time he has a prima facie case? Mr. BROWNELL. Where he thinks the interests of justice would be served by it; yes, sir. Senator ERVIN. And it is conceivable that the Attorney General would have to prosecute thousands of cases. Do you know there in Louisiana, in that one parish there are hundreds of cases in that one parish? Mr. BROWNELL. We would hope-evidently I did not make it clear that in a case like that by an injunction action brought against the proper officials, that that could all be done at one time. That is one of the real arguments in favor of the legislation which we propose. Senator ERVIN. According to my way of thinking, the best nutshell analysis of the Constitution of the United States was made by Chief Justice Chase in Texas v. White. He said the Constitution in all of its provisions looks to an "indissoluble union composed of indestructible States." I just wondered if you would agree with me in the observation that that is about as good a nutshell analysis of the Constitution as has ever been made. Mr. BROWNELL. Yes, I think you can find I have quoted that with approval in a number of my civil-rights speeches. Senator ERVIN. Now as a matter of fact don't the provisions in these bills, the third and fourth parts of S. 83, contribute very much to the theory that the States ought to be destroyed instead of preserved? Mr. BROWNELL. On he other hand, I believe that there is no question, Senator, that this would do more to bring together people of good will in the State and Federal Governments than any other thing the Congress could do at this session, because at the present time, in order to carry out our oath of office, all we can do in this area is to use the criminal sanctions against State and local officials. That does not contribute to the proper functioning of our Federal system. If we had these civil remedies, we could ameliorate that condition considerably, and I believe it would be a real contribution toward the maintenance of the proper balance between the Federal Governments that was contemplated by the Founding Fathers. Senator ERVIN. You pointed out quite correctly in your statement that the right to prescribe the qualifications of voters is vested in the States under article 2 and article 17 of the Constitution, subject to the prohibitions in the 14th and 15th amendments and subject to the prohibition about denying franchise on account of sex. Part III of this provides that the district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section, and shall exercise the same without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law. A similar provision appears in part 4. If those provisions are adopted, the Federal courts, could exercise, in substance, the power to pass in the first instance on whether a particular person possessed the qualifications for voting, could they not! Mr. BROWNELL. I wonder if you would restate that, Senator. I lost you there. Senator ERVIN. The proposed amendments embodied in part 3 and part 4 of S. 83 provide that "district courts of the United States could exercise the jurisdiction given them without regard to whether the parties aggrieved shall have exhausted any administrative or other remedies that may be provided by law." I ask you if the Federal courts could not assume the power under those provisions to determine in the first instance whether a person possessed the qualifications for registering and voting? Mr. BROWNELL. No; I think the answer is definitely no on that. Senator ERVIN. Why not? Mr. BROWNELL. The only substantive questions that would come in this area are those where the Federal Government has the power to act. In those areas where it does not have the power to act, it would not be affected by this legislation at all. Senator ERVIN. How is the Federal Government going to determine, for example, whether a person possesses the qualifications for registering and was denied the right on account of his color or race, or national origin or religion? Mr. BROWNELL. Just the way you decide any other question of fact, if it is a Federal question. Senator ERVIN. What I am getting at is this: Under North Carolina law and I think under the law that prevails in most of the States, there are certain qualifications for registering and voting? Mr. BROWNELL. Yes. Senator ERVIN. Such as that the person cannot be a convicted felon who has not had his civil-rights restored, or that he cannot be a person who has been adjudged to be insane, or that he must pass a simple literacy test. I think you and I both concede that those are reasonable kinds of requirements if properly administered, and they have got to be determined before a person has the right to register and vote. Now how can those matters be determined except by the State in the first instance? Mr. BROWNELL. You have two questions in there, it seems to me, Senator. One, of course, is the qualifications are determined by the State, and the Federal Government does not pass on them. However, the Federal Government does have an interest in the general area. The question is whether or not the State constitution or statute has laid down a qualification, the effect of which while it appears perhaps on the surface to be a qualification to vote, the effect of it, if it is used in such a way, if it is improperly administered in such a way that it deprives the voter, prospective voter, of a Federal right, then the Federal Government does have the right to step in and the Supreme Court has held that a good many times, and there the question of that fact would be decided either by the court or the jury as the case may be just as it would in any other case. Senator ERVIN. Suppose a man is turned down by a registrar. How is the Federal court going to determine that he has been denied his right to vote, without first passing on the question of whether he is a convicted felon whose civil rights have not been restored, or whether he has been adjudged insane and not has his sanity restored, or whether he is competent to pass the literary test? Mr. BROWNELL. The way it has been handled in the past I would assume is to receive evidence on the point and if it is just a question of qualification within the power of the State and it is being properly administered, then they say so in their opinion and say there is no Federal question involved. Senator ERVIN. But it says here that the Federal court has the jurisdiction to pass on this without regard to whether the party aggrieved shall have exhausted any administrative remedy? Mr. BROWNELL. That is quite different quite a different point, Senator. I see now what I think is bothering you there. That has to do with the situation like this. Let's stick to the Ouachita Parish, La., example that we discussed a little earlier this morning. Suppose in that case as we found out the 1st of October, that there was a mass refusal en masse to register the Negro voters in that parish. Senator ERVIN. Let's not take the mass case. Let's take Camden County. I am more familiar with that in North Carolina law, if you will. Mr. BROWNELL. If it is a substantial case, then the evidence is presented to the Federal court. Now if it was necessary, we will say, on the 1st of October for the person involved to go through a long series of administrative remedies which might take a couple of years to exhaust, then the Federal right would in fact be destroyed if we were not able to get the matter before a court promptly so that the harm could be prevented before it happens. That is the type of case that we have in mind. Senator ERVIN. And the Federal court would issue an order to register? Mr. BROWNELL. Register or vote, as the case may be. Senator ERVIN. And in States where no double registration prevails, the effect of that order would be to deprive the State of the right to determine whether its own citizens can vote for State offices, wouldn't it? Mr. BROWNELL. Only to the extent and this is so fundamental to this proposal-that a Federal right set forth in the constitutional laws of the United States has been violated, and the only remedy involved in order to prevent the harm from occurring must be prompt. Senator ERVIN. Ordinarily in North Carolina you can get an administrative remedy before you can get your pleadings drawn for the case in the Federal court. Mr. BROWNELL. Then that would be much preferable. Senator ERVIN. For that reason I wonder why you strike down the authority of States in cases where they have proper procedures, and drag State officials into the Federal court, when the party aggrieved has a prompt administrative remedy. The proposed amendments are based on the theory that the State officials are not going to perform their duty, aren't they? Mr. BROWNELL. No. I would look at it this way, Senator: This does not take away from the States any of their authority to run proper election machinery. In fact, it would be the hope of everyone concerned, I am sure, that the States would function, and the local communities, in such a way that no one would be deprived of their right to vote. However, we know from experience that that is not universally true, that there are cases where, as I say, in the mass, people have been deprived of their right to vote on account of their color. Here we would like to give an additional remedy, without taking any authority away from the States, but the additional remedy to have the Federal Government be able to carry out its promise, the promise being in the Constitution, that people shall be equal under the law and there shall not be discrimination. Senator HENNINGS. That is an enlargement of the franchise, is it not, General? Mr. BROWNELL. For the protection of the individual voter; yes. Senator ERVIN. It is decreasing the power of the States and enlarging that of the Federal Government? Mr. BROWNELL. I cannot see that it decreases the powers of the States at all. Senator ERVIN. Suppose a man goes to the registrar to register and the registrar says he is not qualified to vote, that he is a convicted felon who had not had his citizenship restored? Then he goes into the Federal court and the Federal court says the State authorities are all wrong, that he has been denied the right to vote on account of his color or his national origin. In that case the Federal Government, the Federal court would be overruling the ruling of the State, would it not? Mr. BROWNELL. It is just inconceivable to me that that situation could arise, because you still have the fact that he was a felon, under your assumption, and he would be no more entitled to vote by order of the Federal court than he would be by the State court. Senator ERVIN. I say if there is a disagreement between the State election officials and the Federal court in that instance on that fact the Federal court would be empowered to determine that fact, would it not? Mr. BROWNELL. I think you are assuming a situation which on the basis of experience does not and will not arise, because we have concurrent jurisdietion, Federal and State, in so many areas, and for all these years that concurrent jurisdiction has been functioning smoothly without situations of that kind arising. I see no more reason why it should arise in this area than in any other area of concurrent jurisdiction. Senator ERVIN. Aren't these proposed amendments based, in the last analysis, upon the thesis that the States are no longer competent to exercise such concurrent jurisdiction, and that the jurisdiction to determine those matters should be vested in the Federal courts? Mr. BROWNELL. Definitely not, and any attempt to paint them in such colors, to my mind, would have to be based on a misapprehension completely of their purpose or their effect. Senator ERVIN. What are you going to do with a situation where the State decides that the man is disqualified to vote on valid State grounds, and the Federal judge decides to the contrary? Mr. BROWNELL. Why would he decide to the contrary? Mr. BROWNELL. No. Senator ERVIN. Well, let's see. Mr. BROWNELL. If he is disqualified under proper qualification statute of the State to vote, then he is disqualified in the Federal court just as well as he is disqualified in the State court, and there would be no interference by the Federal Government with that proper authority of the State. Senator ERVIN. Let's take part 4, subsection (b): No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten and so on any other person for the purpose of interfering with the right of such other person to vote. Who is going to pass on whether that person has a right to vote? Mr. BROWNELL. It will be either a State or Federal court, as the case may be. Senator ERVIN. Suppose the State decides he has no right to vote because of his failure to meet a literacy test, or because he is a convicted felon, or because he is adjudged insane, and the Federal court disagrees with it and sustains his right to vote by injunctive relief. The Federal court will be deciding questions which are committed by the Constitution to the State authorities by articles II and XVII. Mr. BROWNELL. In the first place it would never get there because no case would be brought under those circumstances. But I think you are assuming in your question there that the State court would always decide the question on the merits fairly, and that the Federal court always would decide the case not on the merits or fairly. This is quite an assumption. Senator ERVIN. No; I am not assuming that at all. Mr. BROWNELL. If they have the same statement of facts before them, they will reach the same results. Senator ERVIN. I am not even suggesting in my own mind which is right and which is wrong, but I am just suggesting that you have a situation where the State election officials, acting under valid statutes sustained by articles II and XVII of the Constitution, hold that the man does not meet qualifications, and the Federal court decides to the contrary. Mr. BROWNELL. How would it get to the Federal court, Senator? Senator ERVIN. Very easily, Mr. Attorney General, under this bill. The man goes to the registrar, and the registrar refuses to register him on the ground that he is a convicted felon or on the ground that he is adjudged insane or on the ground that he does not meet the literacy test. The election officials, acting in a constitutional manner Mr. BROWNELL. Now you put in a very important qualification. Senator ERVIN. They determine that this man does not meet the qualifications prescribed by State law for those entitled to vote for the most numerous branch of the State legislature under article 2 and article 17, and then he goes to the Federal court. He cannot get an order from the Federal court until he satisfies the Federal court that he does meet those qualifications, can he? Mr. BROWNELL. If the State court has acted constitutionally, as you put in your original statement there before you struck it out, |