served to prevent many of them from voting, as well as it has prevented many whites from voting.

When you find the figures on poll taxes in the States that do not have these tests, the voting registration and numbers of people voting in the elections is quite low for that reason. It hurts your case on the 15th amendment because in those States there has not been any substantial amount of discrimination.

The CHAIRMAN. As I read the bill, any State can remove itself from the provisions of the act by appealing to a three-man court in the District of Columbia; am I correct?

Mr. KATZENBACH. That is correct, Mr. Chairman, with this caveat to it: Those States in which there is, or may be, a final judgment by a court that there has been discrimination in violation of the 15th amendment, in that State or in any part of that State, may not petition the court for removal until 10 years after the last such decision.

The CHAIRMAN. Under this portion of the bill, why was the District of Columbia selected?

Mr. KATZENBACH. The District of Columbia was selected as a convenient forum and for the reason that it was felt that since at least three circuits would be involved, in this determination, it would be desirable to take a three-judge court at the seat of government in order to establish uniformity of decision in this regard.

The CHAIRMAN. What State would be barred by this 10-year prohibition?

Mr. KATZENBACH. The States of Louisiana, Mississippi, and Alabama, would be barred for substantially 10 years from the enactment of this bill. The State of Georgia would be barred for approximately 5 years after the enactment of this bill on the basis of present court decisions.

If there were new court decisions in this respect, those periods might be extended.

The CHAIRMAN. What about Virginia?

Mr. KATZENBACH. Virginia would not be barred from coming in immediately.

The CHAIRMAN. South Carolina?

Mr. KATZENBACH. South Carolina could come in immediately.

The CHAIRMAN. You have mentioned Arizona?

Mr. KATZENBACH. One county in Arizona could come in immediately and Alaska could come in immediately.

The CHAIRMAN. How about North Carolina?

Mr. KATZENBACH. North Carolina is not within the provisions. Counties of North Carolina could come in immediately. I think it is 34 counties in North Carolina. Mr. Glickstein says there is one other county in Maine and one in Idaho.

Mr. Tuck. Could I ask one question?

The CHAIRMAN. I first will permit members of the subcommittee to ask questions and the other members, who do not compose the subcommittee. However, I will make an exception in your case.

Mr. Tuck. Is it the policy of the Government now to interest people to come in and establish their innocence?

Mr. KATZENBACH. No, Congressman, that is not the theory. There is no guilt or innocence involved. The problem is to find an objective. standard. We have found an objective standard here; we believe the great majority of cases of low voter participation relate to racial discrimination.

Mr. Tuck. Is that not the effect of your recommendation? Mr. KATZENBACH. I am sorry. I did not hear your question. Mr. TUCK. Is that not the effect of your recommendation? Mr. KATZENBACH. I certainly would not put it that way, CongressI suppose what you are suggesting is that the State falls within the objective criteria and it has to come in and prove absence of discrimination. That is true, but if Virginia, for example, has not been discriminating, I do not see any great difficulty in their coming in and establishing that.

man.

They have plenty of time to do so before there is any election in Virginia.

The CHAIRMAN. Mr. Attorney General, in addition to the required determination that less than 50 percent of the voting age population had not registered, or had not voted, this will empower you, as Attorney General, to certify after you received meritorious complaints from 20 persons that there has been a denial of the right to vote by reason of race or color? In other words, there are two conditions? One, the less than 50 percent determination and two, receipt of complaints from 20 persons?

Mr. KATZENBACH. No, Mr. Chairman, that is not quite right. The conditions that put a State or political subdivision within this law are: (1) That it has a literacy test or similar kind of test, and I certify that. That is a purely ministerial certification. It merely requires me, in my capacity, to read the law of the State and certify that they have such a test or did have such a test in November of 1964.

The second condition is that either less than 50 percent are registered or less than 50 percent voted in the November 1964 election.

If these conditions are met, then a State is within these provisions— or a political subdivision thereof-unless it can get out by establishing the absence of any discrimination.

The other provision gives the Attorney General the authority within those States, within those counties that are already covered by that section, the power to require of the Civil Service Commission the appointment of a Federal Examiner.

That is where the 20 complaints come in.

The CHAIRMAN. You have used the phrase a number of times-"tests and devices".

I take it the word "test" is clear. That is literacy tests?

Mr. KATZENBACH. Yes, sir.

The CHAIRMAN. What do you mean by "devices" and how broad is that?

Mr. KATZENBACH. The term is broadly defined in section 3(b) of the act on page 2. It means any requirement, no matter what form it may take, that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter; (2) demonstrate any educational achievement or his knowledge of any particular subject; (3) possess good moral character; or (4) prove his qualifications by voucher of registered voters or members of any other class.

The CHAIRMAN. Mr. Rodino?

Mr. RODINO. Mr. Attorney General, first, I wish to commend you on the very fine, strong statement which you have presented this morning. I am hopeful that this committee may, in a bipartisan spirit, seek to achieve that which we thought we achieved in the past many

46-535-65——

years, and that we will favorably report this bill and that it will be enacted quickly so that the right to vote provided under the Constitution may be a reality.

In 1957, 1960, and 1964 the Congress attempted to eliminate the obstacles and abusive practices that have prevented many of our citizens from exercising their right to vote. These remedies, it is now clear, have been inadequate to cope with the deliberate refusal of those who are determined to deny their fellow Americans their right to vote because of race or color.

I concur with the statement of President Johnson in his Message to the Congress on March 15, in which he said:

"For at the real heart of the battle for equality is a deep-seated belief in the democratic process. Equality depends not on the force of arms or tear gas, but depends upon the force of moral right-not on recourse to violence but on respect for law and order."

Now, Mr. Attorney General, in your statement you have spoken of the history of the denial of this right to vote, the evasion, obstruction, and delay. You also cite various examples of how, when we have sought to remedy these problems, nonetheless certain devices have been used, and there has been obstruction.

Do you envisage, Mr. Attorney General, that with the enactment of this bill into law that that evasion and obstruction will pass away? Mr. KATZENBACH. I do, Congressman, after what I am sure will be one test of the constitutionality of this bill. Then I think after that this bill provides the means necessary to protect the right to vote and to guarantee it within all of those areas where delay, frustration, and unfairness have so long denied it.

Mr. RODINO. Do you feel that it will require only one test, or do you envisage that there may be many tests? Is it not possible that there may be tests in various parts of the country because of the provisions of this bill?

Mr. KATZENBACH. I would think not, Congressman. I would think it would be essentially like the public accommodations law where there was one quite rapid constitutional test, and where the Court covered the subject in its opinion quite well and where there has been compliance.

Mr. RODINO. The bill refers to the Director of the Census making a determination respecting a 50 percent figure as to both the people of voting age who are registered as of November 1, 1964, and those who voted as of November 1964 in the presidential election. Why do you use the figure of 50 percent?

Mr. KATZENBACH. I use the 50 percent figure, Congressman, because looking at the problems statistically I find that the average number throughout the country who registered and who voted, with some exceptions, runs to an average of about 61 percent. There was quite a gap in the national average. There is quite a gap between the national average and the figure 50 which was selected. Obviously any particular figure selected is an arbitrary figure, that is, 49, 51, or 52: 50 is a good round number.

When you examine it further and you look at the States involved. and the counties involved, there would seem to be quite a direct relationship between the low registration and voting figures in those States as compared to the whole population, and the fact that a low number of Negroes are registered.

If you look further into that you will find that these are the areas in general in which complaints have been made about discrimination, in which the Department of Justice has filed under the existing laws voting suits, and in which we have won voting suits. These are the States in which we have filed suits against discrimination in voting. I think you can make a judgment, on the basis of that, that the reason for the low registration and the low voting figure, is the fact that Negroes are not registered, and a further judgment that the probability is that the Negroes in those States have been discriminated against.

Mr. RODINO. Would you conclude that if 51 percent of the people of voting age were registered as of November 1, 1964, and 51 percent of the people of voting age voted in the election of November of 1964, that there had been no discrimination in that area?

Mr. KATZENBACH. I would say, Congressman, that one could not say there had been no discrimination in those areas, nor was it necessary to say there had been no discrimination. There may well have been, but I would say that the higher the percentage of people who are registered and who vote the less the possibility of at least widespread discrimination.

With the enactment of this law we are trying to deal with those areas in which there has simply been massive resistance to the registration and voting of Negroes.

I don't think that all areas of the country are free of prejudice, and I think it is possible that in any State of this country Negroes may have been discriminated against from time to time. They may be discriminated against now.

I think the likelihood of that on any large scale is small, and I think you show the likelihood is small on a statistical basis.

Remember, we still have the power after the enactment of this bill, to single out a particular county and to go through the procedures of the prior Civil Rights Act which remain if there is a discrimination which we have not caught with the statistical judgment.

Mr. RODINO. In other words, even if more than 50 percent of the people in a particular area voted or were registered that in itself would not mean that cases of discrimination which might exist in such areas would not be studied and acted upon?

Mr. KATZENBACH. That is absoluately right, Congressman. I have some statistics here, Mr. Chairman, which I would like to submit. for the record.

I believe these figures are correct. I can say that with confidence since I did not do the mathematical computations myself. Had I done so I would not dare submit them. I believe these are correct and I believe they would tend to support the general statement that I just made.

I have here an analysis of the States, voting age population, total vote cast in the 1964 presidential election, percentage of population which cast its vote; number of registered voters in 1964, and that is a figure which I do not regard as completely reliable but the best we can do: and the percentage of population of that State registered. It varies from very high figures, 90 percent in Maine, 93 percent in Indiana, 94 percent in Idaho, down to the lowest figure which is 44

percent on those registered, 33 percent on those voting, and that State happens to be Mississippi.

The CHAIRMAN. We shall be glad to receive those in the record. Mr. KATZENBACH. I also have for the record, Mr. Chairman, the list of States which use a test or device as defined in section 3(b) of the proposed Voting Rights Act of 1965. Again I believe this list to be correct. I would like the opportunity, if further research indicates we made errors, to correct it for the record, although I believe it is

correct.

The CHAIRMAN. Without objection these tables may be placed in the record.

(The tables referred to are tables A-1, and A-2 of the following set of compilations which were supplied by the Department of Justice :)

INDEX TO TABLES

A-1-Fifty-State compilation of voting and registration statistics.

A-2-States which use a test or device as defined by section 3(b) of the proposed Voting Rights Act of 1965.

A-3-States using tests or devices as defined by section 3(b) of the proposed Voting Rights Act of 1965.

B-1-Voting age population and registered voters classified by race in those States where use of tests and devices is suspended by the proposed Voting Rights Act of 1965.

B-2(a)-Discriminatory use of "tests or devices" challenged in Justice Department litigation in Alabama.

B-2(b)-Voting age population and registered voters classified by race in those Alabama counties in which racial voting suits have been brought under 42 U.S.C. 1971A.

B-3(a)-Discriminatory use of "tests or devices" challenged in Justice Department litigation in Louisiana.

B-3(b)-Voting age population and registered voters classified by race in those Louisiana parishes (counties) in which racial voting suits have been brought under 42 U.S.C. 1971A.

B-4(a)-Discriminatory use of "tests or devices" challenged in Justice Department litigation in Mississippi.

B-4(b)-Voting age population and registered voters classified by race in those Mississippi counties in which racial voting suits have been brought under 42 U.S.C. 1971A.

C-1-Statutes in effect within the past 10 years requiring segregated facilities in those States which use a test or device as defined by section 3(b) of the proposed Voting Rights Act of 1965.

C-2-State antidiscrimination laws in force in those States which use a test or device as defined by section 3 (b) of the proposed Voting Rights Act of 1965. D-State voting qualifications unaffected by the proposed Voting Rights Act of 1965 in States and separate counties where use of tests and devices would be suspended.

E-Voting statistics by counties for States having "tests or devices" which are not suspended on a statewide basis by the proposed Voting Rights Act of 1965. E-1-Arizona.

E-2-California.

E-3-Connecticut.

E-4-Delaware.

E-5-Hawaii.

E-6-Idaho.

E-7-Maine.

E-8-Massachusetts.

E-9-New Hampshire.

E-10-New York.

E-11-North Carolina.

E-12-Oregon.

E-13-Washington.

E-14-Wyoming.