Mr. BROWNELL. The answers that I gave are just the same. That they still have private people who can act in this in their own

Senator ERVIN. That's the answer to a question that I haven't put to you. That is my objection to it.

Mr. BROWNELL. It certainly throws light on the proper answer to your question.

Senator ERVIN. It also throws darkness on the right answer to the question I am putting to you.

Mr. BROWNELL. Under the laws amended if this program passes, private people will retain the right they have now to sue in their own name and the Attorney General will have the additional right which he does not now have to bring on behalf of the United States for the protection of its citizens the new remedy remedial actions.

Senator ERVIN. And he is the only human being that would have that new right?

Mr. BROWNELL. I don't want to change my answer. I think I have given you a complete answer rather than give a partial one.

Senator ERVIN. I do construe your answer to constitute an admission that the new right which would be created by the proposed amendments inserted in parts 3 and 4 of Senate bill 83 is a new right to be exercised by the Attorney General exclusively.

Mr. BROWNELL. I will stand on my answers and you can have your own interpretation of it. It is not my interpretation.

Senator ERVIN. Do you claim that any person other than the Attorney General could make the determination whether the new remedies should be invoked?

Mr. BROWNELL. Perhaps it would be helpful, Mr. Chairman, if the reporter read my last answer, because it would be the same this time. Senator HENNINGS. Mr. Reporter, will you read the last answer? Senator ERVIN. Read my previous question and see if the other was an answer to it.

Senator HENNINGS. Read the last answer please, of the Attorney General.

(Answer read.)

Senator ERVIN. I will accept the answer on the legal rule of construction that inclusion of one thing is the exclusion of another and therefore when you say the new right is to be exercised by the Attorney General I am going to take it that the inclusion of the Attorney General excludes the other 160 million people in the United States.

Mr. BROWNELL. That is your interpretation, I would like to have the record show and not mine.

Senator ERVIN. The committee will undertake to make its own interpretation in due course of course.

Read that last answer.

(Answer read.)

Senator ERVIN. Mr. Attorney General, I want to read to you part 3 of S. 83, which is substantially in the same words as subsection (c) of part 4:

Whenever any persons have engaged

this is the amendment you ask us to incorporate in the law

Whenever any persons have engaged or are about to engage in any acts or practices which would give rise to a cause of action pursuant to paragraphs first, second, or third, the Attorney General may institute for the United States

or in the name of the United States but for the benefit of the real party in interest a civil action or other proper proceedings for redress or preventive relief, including an application for a permanent or temporary injunction, restraining order or other order.

Now I have read you verbatim the proposed amendment embodied in part 3 of Senate bill 83. And I ask you what persons or what officials have a right to determine whether the Attorney General will avail himself of that new proposed remedy?

Mr. BROWNELL. The same answer would apply there, Senator, that the private persons retain their rights under the existing law which would be part of the amended law and the part that you have read there gives the United States Government action through the Attorney General an additional right to also start actions.

Senator ERVIN. The reason I ask you this question a second time is that I construed your answer a while ago to say that my conclusion that the power to determine whether the proposed new remedy should be invoked could be exercised only by the Attorney General was not your conclusion.

Mr. BROWNELL. The same answer goes as before, I will make my own statements, and then of course you have the privilege of interpreting them as you see fit.

Senator ERVIN. Will you read the Attorney General his statement about the new remedy because I want to ask a question restricted to it.

(Answer read.)

Senator ERVIN. My question was with reference to the second part of your answer.

Mr. BROWNELL. I beg your pardon?

Senator ERVIN. My question refers to the second part of your answer and to that part only. Do you intend to convey to me by that answer the information that in your opinion any person other than the Attorney General has any authority to determine whether the new remedy shall be put in motion?

Mr. BROWNELL. Same answer, Mr. Chairman.

Senator ERVIN. Your same answer is an answer that involves talking about private persons as well?

Mr. BROWNELL. Yes; I think that covers both questions in order to give a realistic picture of what the amended law will do.

Senator ERVIN. Now, Mr. Attorney General, we talked a little yesterday about the right of confrontation of witnesses, the right to cross-examine witnesses. I said that was a very basic right. Whenever you put the testimony of a man on a piece of paper, you can't tell whether the man has the veracity of a George Washington or the lack of veracity of an Ananias. I would like to ask you if you do not agree with me that rule 65 of the Federal Rules of Civil Procedure provides in express terms that a restraining order can be issued solely upon affidavits.

Mr. BROWNELL. Would you read the rule, please!
Senator ERVIN (reading):

No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and the hearing held on it.

Mr. BROWNELL. That seems clear to me; yes.

Senator ERVIN. In other words, the restraining order can be issued under rule 65, 65 (b) itself on an affidavit and a verified complaint or verified complaint, either.

Mr. BROWNELL. Yes; I give the same answer today as I did yesterday; yes.

Senator ERVIN. Then I will ask if you if there is any provision in the rule that requires anything other than that on a temporary injunction?

Mr. BROWNELL. Read the rule to me again with that in mind. I will try to interpret it, too, for you.

Senator ERVIN. To save time, it is a long rule and there is no use discussing all the provisions of it. I will say that I have read it. It is silent on that point. I have not been able to find any other rule or any statute anywhere-and there are a lot of statutes and a lot of rules-but I have tried to make a diligent effort to find them and I have not found a single one which requires anything other than affidavits or verified pleadings on a temporary injunction.

Mr. BROWNELL. As we said yesterday, the matter is in the discretion of the trial judge. These three election cases I cited this morning by name and number show that the trial judges do exercise that discretion and in some cases they hear witnesses and in others they do not.

Senator ERVIN. I think you and I are in agreement on that. I quote this from volume 43 Corpus Juris Secundum, 19, headnote:

In the absence of a statute to the contrary and except on the hearing for a permanent injunction affidavits may be considered and when they establish sufficient grounds for a temporary injunction may justify its issuance. The court, however, may require or consider other evidence.

Mr. BROWNELL. That's a good statement.

Senator ERVIN. I think we both agree that is a correct statement of the rules.

Mr. BROWNELL. That's a good statement of it, yes.

Senator ERVIN. Yes; I think we can also agree on this statement from volume 43 Corpus Juris Secundum in section 193:

When pleadings are properly verified they may serve the office both of pleadings and of evidence on the application for a temporary injunction.

I believe we can agree on that.

Mr. BROWNELL. Yes, that's a good restatement of what we said yesterday.

Senator ERVIN. I have asked you a great many questions about how this new proposed remedy will work. Is it your idea that the remedy would be speeded and take effect before the election? Isn't it?

Mr. BROWNELL. Yes, to prevent the crime from happening if possible.

Senator ERVIN. And would take effect before there was an opportunity in a great majority of cases to have a trial on the merits. wouldn't it?

Mr. BROWNELL. No, as we said yesterday, no.

Senator ERVIN. You tell me that a man can get a Federal case tried on the merits in something like 5 or 6 weeks!

Mr. BROWNELL. I have seen it done in much shorter time than that, Senator.

In emergency cases here in the District as you perhaps noticed in the papers once in a while they will even sit in the evening to see that justice is done.

Senator ERVIN. Well, of course, those are very exceptional, aren't they?

Mr. BROWNELL. Yes, in the ordinary case you would have plenty of time to present the evidence at length.

Senator ERVIN. Most Federel judges are pretty much overworked

men.

Mr. BROWNELL. They are a very fine group of men and have consciences.

Senator ERVIN. They are so overworked in my State that the Department of Justice has recommended that we have another district Juage.

Mr. BROWNELL. Good, I hope they will vote for that bill.

Senator ERVIN. As one who is familiar with the laws, delays as well as with the darts of outrageous fortune, I know it is not likely that the great majority of cases of this kind can possibly be tried on the merits before the election is held.

Mr. BROWNELL. Yes, one thing we mentioned yesterday, too, might be appropriately brought up at this point. We are covering the same ground again. Take that Louisiana example, it might be necessary under present law to have as many as 4,000 lawsuits whereas here we might avoid that congestion in the courts by a single injunction action and bring justice to the people involved.

Senator ERVIN. How much time does a man have as a matter of right in a suit in a Federal court to file an answer? In any case? Mr. BROWNELL. In any case?

Senator ERVIN. In all cases?

Mr. BROWNELL. What we are talking about now is equitable relief where we may be having motion practice.

Senator ERVIN. I am not bothered about motions. Motions are not trial on the merits according to my understanding. Trial on the merits involves the right to present oral testimony.

Mr. BROWNELL. A large part of our legal system is based on it. It is as important as the other part.

Senator ERVIN. If you brought an action under this statute you could not try the case on the merits until the defendant had filed an answer, could you?

Mr. BROWNELL. Yes; many cases.

Senator ERVIN. You mean to tell me that equitable cases could be tried on the merits before an answer is filed?

Mr. BROWNELL. I can conceive that many of these cases would be started on motion and a full hearing, on the merits held without any complaint or answer, any answer in the normal sense being filed.

Senator ERVIN. You don't anticipate that these cases would be brought until the registration period opened insofar as the rights of voters are concerned, do you?

Mr. BROWNELL. I think they would be an all-year-round operation. We would try to detect the violations as promptly as we could so the courts would not be jammed at the last minute.

Senator ERVIN. In the average State the opportunity to register is afforded the voters only a few weeks before election, isn't that so?

Mr. BROWNELL. Yes, but you may get a situation-I don't know the laws of all the 48 States.

Senator ERVIN. A man couldn't be denied the right to register until he is entitled under the law to present himself for registration?

Mr. BROWNELL. Under the present law he doesn't have any adequate protection at all. Like take Louisiana situation which we discussed so much; I don't see any reason why if this program passes you couldn't start injunction proceedings right away to see to it that there wasn't a repetition of this crime.

Senator ERVIN. Are you going to disagree with me in the observation that you couldn't bring a case until a cause of action has arisen?

Mr. BROWNELL. Yes, but the cause of action may arise in these injunction proceedings long before the registration period based on past facts.

Senator ERVIN. You mean to say that you propose, if this bill is passed, that you propose to bring civil action to force election officials to register voters before the time comes in which the election officials can legally enroll those voters.

Mr. BROWNELL. No.

Senator ERVIN. That being true, you don't propose to bring a suit before the man is denied his right to register, do you?

Mr. BROWNELL. In some cases, yes. Where we have a course of conduct which indicates that the voter is going to be again deprived of his right to vote, which is guaranteed to him by the Constitution, we would be able to commence the injunction proceeding before the registration period.

Senator ERVIN. The Federal courts are judicial bodies, aren't they? Mr. BROWNELL. That seems clear.

Senator ERVIN. And do you think that a judicial body has jurisdiction of a cause of action before the cause of action arises?

Mr. BROWNELL. No.

Senator ERVIN. Frankly I don't see how a man can be illegally denied his right to vote until he has made an application to register and has been denied registration. I do not see how the Federal Government can compel the States to change their laws so as to let the Federal courts by injunction regulate the times at which the books of registration could be open for the registration of voters.

Mr. BROWNELL. Aren't you confusing two things there-unintentionally, I'm sure? One is the time when the cause of action arises so the court can take preventive relief. The other is the time when the decision or the decree of the court should be carried out.

It may be that the decree of the court should be carried out only during the registration period but the decree itself could be formulated and handed down at an earlier date when the cause of action has arisen.

Senator ERVIN. I don't know whether I am quite as confused as you think I am. I have the thought that a court will not entertain an action to enforce a cause of action until the cause of action has arisen.

Mr. BROWNELL. I agree with that.

Senator ERVIN. I am glad you do. There is not as much confusion between us in my mind as I thought.

Mr. BROWNELL. No, I answered it three times and always the same way.