As the Supreme Court said in 1941 in United States v. Classic (313 U. S. 299, 315), this right to choose-

is a right secured by the Constitution *** And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the 14th and 15th amendments, is secured against the action of individuals as well as of States.

Congress passed many years ago statutes, now title 42, United States Code, sections 1971 and 1983, under which private persons claiming that they had been deprived of the right to vote on account of race or color by persons acting under color of State law have been able to bring civil suits for damages and preventive relief.

In fact, it is in a long series of cases brought by private individuals under these statutes that the courts have held that the constitutionally protected right to vote extends beyond the general election to any primary or special election which is either a recognized part of the State's election machinery or which is, in fact, the only election which counts in the ultimate selection of the elected officials.

The Congress has also authorized Federal criminal prosecutions in the voting field. Actions by private individuals which interfere with the right to vote for Federal officials may be prosecuted under title 18, United States Code, sections 241 or 594.

Persons who act under color of law to deprive individuals of their right to vote in any election, State or Federal, because of race, color, religion, or national origin may be prosecuted under title 18, United States Code, section 242. A number of prosecutions have been had under these provisions.

So much for the present framework under the laws.

The major defect in this statutory picture, however, has been the failure of Congress thus far to authorize specifically the Attorney General to invoke civil powers and remedies. Criminal prosecutions, of course, cannot be instituted until after the harm actually has been done yet no amount of criminal punishment can rectify the harm which the national interest suffers when citizens are illegally kept from the polls.

Furthermore, I think it is fair to point out that criminal prosecutions are often unduly harsh in this peculiar field where the violators may be respected local officials. What is needed, and what the legislation sponsored by the administration would authorize, is to lodge power in the Department of Justice to proceed in civil suits in which the problem can often be solved in advance of the election and without the necessity of imposing upon any official the stigma of criminal prosecution.

Let me now give you some examples of situations which have come before us in the Department in which we think the proposed legislation would have been of great assistance in protecting the right to vote. First, let me refer to the situation which developed last year in Ouachita Parish, La.

In March 1956 certain members and officers of the Citizens Council of Ouachita Parish commenced an examination of the register of the voters of Ouachita Parish.

Thereafter, they filed approximately 3,420 documents purporting to be affidavits but which were not sworn to before either the registrar or deputy registrar, as required by law.

Mr. SLAYMAN. Excuse me, Mr. Attorney General, how many of those were there?

Mr. BROWNELL. 3,420.

Mr. SLAYMAN. 3,000?

Mr. BROWNELL. 3,420.

Mr. SLAYMAN. Thank you.

Mr. BROWNELL. In each purported affidavit it was alleged that the affiant had examined the records on file with the registrar, that the registrant named therein was believed to be illegally registered and that the purported affidavit was made for the purpose of challenging the registrant's right to remain on the roll of registered voters.

Such affidavits were filed challenging every one of the 2,389 Negro voters in ward 10. None of the 4,054 white voters in that ward were challenged.

Senator HENNINGS. General, in what part of the State is that parish?

Mr. BROWNELL. Near Monroe, La.

Senator HENNINGS. Near Monroe?

Mr. BROWNELL. Yes.

With respect to another ward, ward 3, such affidavits were filed challenging 1,008 of the 1,523 Negro voters.

Only 23 of the white voters in ward 3 were challenged. The registrar accepted their affidavits even though she knew that each affiant had not examined the registration cards of each registered voter he was challenging.

On the basis of these affidavits, citations were mailed out in large groups requiring the challenged voters to appear within 10 days to prove their qualifications. Registrants of the Negro race responded to these citations in large numbers. During the months of April and May large lines of Negro registrants seeking to prove their qualifications formed before the registrar's office, starting as early as 5 a. m. The registrar and her deputy refused to hear offers of proof of qualifications on behalf of any more than 50 challenged registrants per day. Consequently, most of the Negro registrants were turned away from the registrar's office and were denied any opportunity to establish their proper registration.

Thereafter, the registrar struck the names of such registrants from the rolls. With respect to those registrants who were lucky enough to gain admission to the registrar's office, the registrar imposed requirements in connection with meeting the challenge which were in violation of Louisiana law.

The registrar refused to accept as witnesses, on behalf of challenged voters, registered voters of the parish who resided in a precinct other than the challenged voter or who had themselves been challenged or had already acted as witnesses for any other challenged voter.

By these means the number of registered Negro voters in Ouachita Parish was reduced by October 6, 1956, from approximately 4,000 to 694.

On October 10, 1956, Assistant Attorney General Warren Olney III, who is here with me today, testified concerning the facts regarding Ouachita Parish before the Senate Subcommittee on Privileges and Elections and recommended that the subcommittee hold public hearings in advance of the general election. The subcommittee took no action with respect to the situation.

The point I would like to make now is that, had the administration's program been in effect, the Department would have been able to initiate a civil action for the purpose of restoring the Negro voters to the rolls of registered voters in time to vote in the November election.

Our investigation has revealed similar situations in several other Louisiana parishes. Related problems have developed in other States. For example, our investigations disclosed the following situations in North Carolina just prior to the North Carolina primary elections of May 1956.

The North Carolina constitution (art. VI, sec. 4) and statutes (General Statutes 1943, ch. 163, art. 6, sec. 28) provide that a person, to become a registered voter, must be able to read and write any section of the North Carolina constitution to the satisfaction of the registrar. The constitution and statutes also contain a "grandfather clause" exempting any male person (or his lineal descendent), entitled to vote January 1, 1867, from this requirement if such person registered prior to December 1908.

What happened under these provisions?

1. Camden County (Courthouse Township precinct): In this precinct, the registrar gave the reading and writing tests to Negro applicants, but not to white applicants. The latter were permitted to register upon showing the necessary residence, and so forth.

In giving the reading and writing tests to Negroes, the registrar demanded that they write the preamble to the constitution from her dictation. She required in this connection that all spelling, punctuation, and capitalization be correct.

The complainants, 4 Negro high-school graduates, failed the test, although 2 were very determined and went back and memorized the whole preamble and passed another test.

The registrar recently resigned. During the 2 years she was in office (1954-56), she registered a total of 4 Negroes. During the same period, she registered 55 white persons. The population of the precinct is roughly 2 to 1-about 1,200 whites and 600 Negroes.

2. Brunswick County (Bolivia precinct), N. C. :

In this precinct, the practice of the registrar, according to his own statement, is to qualify Negroes under the educational tests (reading and writing a section of the constitution), and to register whites under the "grandfather clause."

3. Greene County (Snow Hill precinct): In this precinct, the registrar omitted as to both races the requirement pertaining to reading and writing a part of the constitution. However, as to Negro registrants, he demanded that they answer a list of 20 questions. The questions required them to name all candidates running for office in the county, to define primary and general elections, to state whether they were members of the NAACP, and whether they would support the NAACP should that organization attack the United States Government, and so forth. White applicants were required to answer no such questions.

The reason I give these example, of course, is to be able to point out that in most of these situations civil remedies would enable the Government to take affirmative action to deal with attempts at what amounts to mass disenfranchisement of Negroes in time to be effective,

In a civil proceeding for preventive relief or for a declaratory judgment, the constitutionality of the election practice could be quickly determined and appropriate relief awarded. Criminal remedies at best come after the harm has been done. Furthermore, we all know that jurors are reluctant

Senator HENNINGS. General, if I may interrupt, isn't that true of our entire philosophy of criminal prosecution?

Mr. BROWNELL. Oh, yes; no doubt about that.

Senator HENNINGS. We indict and convict after the act?

Mr. BROWNELL. That is right; and it is a very important factor in this situation.

Jurors are reluctant to indict and convict local officials in a criminal prosecution even though they recognize the illegality of what has been done. As a result, not only are the election officials freed, but also the Government is not able to get an authoritative determination regarding the constitutionality of what was done.

The proposals of the administration would, of course, go beyond the voting cases, important as they are, and give to the Department the authority to invoke civil remedies in other cases of civil-rights violations. Here, as in the voting situation, private persons have long been able to bring civil suits where civil-rights violations have occurred.

Much of the large body of judicial precedent and decision which has been built up in the courts defining constitutionally protected rights has been handed down in such suits.

Yet, while the private persons can bring these suits, the Federal Government is limited to criminal prosecutions which, as in voting cases, are cumbersome, difficult, and in situations not involving brutality and violence, often unduly harsh.

Our experience over the years in civil-rights cases demonstrates that in many situations civil remedies would go far toward permitting the Government to arrive at the most rational and fair solution of the problems presented.

Let me give you an example of what I mean. The United States Supreme Court recently reversed the conviction of a Negro sentenced to death by a State court because of a showing that Negroes had been systematically excluded from the panels of the grand and petit juries that had indicted and tried him.

Senator ERVIN. Mr. Attorney General, I wish you would state what case that is.

Mr. BROWNELL. In Georgia. I think I come to that in a moment or two in my prepared text.

In so doing, the Supreme Court stated that, according to the undisputed evidence in the record before it, systematic discrimination against Negroes in the selection of jury panels had persisted for many years past in the county where the case had been tried.

In its opinion the Court mentioned, parenthetically, but we thought pointedly, that such discrimination was a denial of equal protection of the laws, and it would follow that it was a violation of the Federal civil-rights laws.

Accordingly, the Department of Justice had no reasonable alternative except to institute an investigation to determine whether in the selection of jury panels in the county in question the civil-rights laws

of the United States were being violated, as suggested by the record before the Supreme Court.

I think it must be clear to you that the mere institution of this inquiry aroused a storm of indigation in the county and State in question. This is understandable since, if such violations were continuing, the only course left open to the Government under the laws as they stand now was criminal prosecution of those responsible. That might well have meant the indictment in the Federal court of the local court attachés and others responsible under the circumstances. Fortunately, in this case the Department was never faced with that disagreeable duty. The investigation showed that, whatever the practice may have been during the earlier years with which the Supreme Court's record was concerned, in recent years there had been no discrimination against Negroes in the selection of juries in that county. Supposing, however, that on investigation, the facts had proved otherwise. The necessarily resulting prosecution would have stirred up such dissension and ill-will in the community that it might well have done more harm than good.

Such unfortunate collisions in the criminal courts between Federal and State officials can be avoided, certainly minimized, if the Congress would authorize the Attorney General to apply to the civil courts for preventive relief in civil-rights cases.

In such a proceeding the facts can be determined, the rights of the parties adjudicated and future violations of the law prevented by proper order of the court without having to subject State officials to the indignity, hazards, and personal expense of a criminal prosecution in the Federal courts.

I should like to add a few words regarding the relationship of these proposals to the school segregation situation. As you all know, the Supreme Court recognized the many difficulties involved in making the transition from segregated to nonsegregated education.

The Court said that

School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.

Civil suits brought by private individuals are at the present time as a matter of common knowledge bringing the school situation before the Federal courts in increasing numbers of areas where segregation has been practiced.

Because of the discretion vested in the district courts in solving these questions the Department has not become aware of any case in which the exercise of its existing criminal jurisdiction is warranted. For similar reasons we should not expect often to be faced with the necessity of taking affirmative action in civil suits were the legislation now advocated by us enacted by the Congress.

There is, however, one type of situation in which these civil remedies might be useful in the school segregation area, illustrated perhaps by a case that arose in Hoxie, Ark.

There you will remember that the school board, in compliance with the United States Supreme Court ruling and without waiting for a lawsuit to be brought to compel them to do so, went ahead and desegregated the school.