of the appropriate election officials with copies to the Attorney General and the attorney general of the State.

Suppose a State official refused to accept it. Could you prosecute him for a crime under this law?

Mr. KATZENBACH. No; I believe, Congressman, if an official refused to accept the list we would have two remedies: One, the United States could go into court and compel him to accept that list if sufficient time remained. If it were too close to the election to do so, then we would use the provisions of section 9(e). That is, if a person on the list was not accepted by the officials for voting in the next election, the court would hold up the voting returns and permit such a person to vote. Mr. ROGERS. While we are on that section, if an examiner had certified this to the proper official and the official made it appear that he did not receive it when the man appeared to vote, then, as I understand it, if within 24 hours he and any others in that political subdivision were not permitted to vote, the Court would then take over the question, issue an injunction and require the registrars of the State to permit these people to vote and have the vote counted in connection with that election?

Mr. KATZENBACH. I would think so; yes, Congressman.
Mr. ROGERS. That is the intent and purpose of 9(e).

Mr. KATZENBACH. Yes.

The CHAIRMAN. Mr. Katzenbach, is it true that an individual registered by a Federal examiner can vote and have his vote counted even if after the election, (a) this act is found to be inapplicable to the State or political subdivision in an action instituted under section 3 (c), page 2, or (b) the individual is found to be ineligible to vote under section 6(a)?

Mr. KATZENBACH. Yes.

The CHAIRMAN. In other words, the vote could be counted although it may be found later that he did not have the right to vote.

Mr. KATZENBACH. Yes, that is true. This follows in that respect the normal State procedures. If there is a challenge and the challenge is heard and disposed of by a hearing officer as it can be under the act and the hearing examiner decides the person offering to vote is properly on the voting lists, then if the court should fail to make a decision by the time of the election-which is an unlikely event, the hearing examiner having made the decision of eligiblity to vote the person would vote and his vote would be counted.

The CHAIRMAN. Of course, I see the practical problem. The alternative would be to deny the applicant the right to vote and involve him in legal proceedings. And even if the court found he could vote thereafter the election would have passed.

Mr. KATZENBACH. Yes.

The CHAIRMAN. What is the justification for the provision in this bill for the Federal courts to determine the validity of any State voting qualification in an act subsequent to November 1, 1964? I am referring to section 8, page 7, which reads:

Whenever a State or political subdivision for which determinations are in effect under section 3(a) shall enact any law or ordinance imposing qualifications or procedures for voting different than those in force and effect on November 1, 1964, such law or ordinance shall not be enforced unless and until it shall have been finally adjudicated by an action for declaratory judgment brought

against the United States in the District Court for the District of Columbia that such qualifications or procedures will not have the effect of denying or abridging rights guaranteed by the 15th amendment. All actions hereunder shall be heard by a three-judge court and there shall be a right of direct appeal to the Supreme Court.

Before a State changes a statute, must it get a court order?

Mr. KATZENBACH. Yes.

The CHAIRMAN. What is the justification for that?

Mr. KATZENBACH. The justification for that is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. I refer, for example, to the new voter qualifications that have been put into the statutes of Louisiana, Mississippi, and Alabama following the enactment of the 1964 act which made things more difficult for people to vote and which were put in, I believe and we have established in one case and I believe we will establish in the other cases-for no other purpose than to perpetuate racial discrimination.

The same thing was true, as the Chairman may recall, in Louisiana at the time of the initial school desegregation, where the legislature passed I don't now how many laws in the shortest period of time. Every time the judge issued a decree, the legislature, which was sitting in special session, passed a law to frustrate that decree.

If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act.

If you look at the past history on this, it seemed to us that the State which had been discriminating in the past should be subjected to some kind of limitations as to any new legislation that it might propose. Certainly, there could be appropriate changes of legislation. A State could raise the voting age from 18 to 21 or drop the age from 21 to 18 or change the residence requirements from 12 months to 6 months, or something of that kind, and there would be no objection to it. That kind of matter could be very quickly disposed of. It would not interfere with any election or registration proceeding at all because clearly

The CHAIRMAN. You say it could easily be disposed of, but if they changed the age, would they still have to go to the District of Columbia court?

Mr. KATZENBACH. They would still have to go to the District of Columbia court, but I do not believe the United States would, or indeed, could oppose that, unless the United States were capable of making a case with respect to the effect of the proposed change of law. The effect would have to be one of denying the rights guaranteed by the 15th amendment.

The CHAIRMAN. In other words, your language on page 7, line 25 is all-sweeping and covers the enactment of any law on voter qualifications.

Mr. KATZENBACH. That is correct, Mr. Chairman. You can go ahead and look at the test which is stated in lines 6, 7, and 8, and the test of that law is that the court has to find that the laws won't have

the effect of denying or abridging rights guaranteed by the 15th amendment. If they do have those effects or the court decides they might have those effects, then it seems to me proper, under a law to enforce the 15th amendment, to deny the State the right to endorse those provisions.

Mr. McCULLOCH. Would the gentleman from Colorado yield in view of this line of questioning?

Mr. ROGERS. The gentleman from Colorado yields.

Mr. McCULLOCH. As I recall, it was the statement of the Attorney General that possibly Alaska could be affected by this legislation. Mr. KATZENBACH. Yes, it could.

Mr. McCULLOCH. There has been no intimation or no feeling that there has been discrimination against the people of Alaska by reason of race or color in voting or registering in the past, is there?

Mr. KATZENBACH. None that I know of in any kind of concrete way, Mr. McCulloch.

Mr. McCULLOCH. Suppose in Alaska they had been voting by paper ballots alone and they decided to change their laws to vote by machine. Would it be necessary for Alaska to come to the District of Columbia to seek a declaratory judgment for that change in voting procedures? Mr. KATZENBACH. Yes, I believe that it would, Mr. McCulloch, but I believe Alaska would have gone into that court quite a long time. before it did that. I think it would have been in there to get out from section 3(a). I think it would be in there to establish that there had never been any discrimination and, therefore, the State would not be bound by this proposed legislation. I would think a better example might be Mississippi.

Mr. McCULLOCH. Would you elaborate on that statement, please, sir?

Mr. KATZENBACH. I think Alaska probably would, if what you intimate and I have no evidence to the contrary-is true, Alaska would get out under the procedures of section 3 (c), and, therefore, get out from any prohibitions on future legislation.

I believe, Congressman, that it would be possible to set out in section 8, if this committee wanted to do so, certain changes that could be made in State law without requiring a State to comply with the declaratory judgment provisions of that section. I do not think it really makes any difference if a State wants to change the voting age. I don't think it makes any difference if they want to change the residence requirements. I think if they want to go from paper ballots to machines, it does not make any difference. If they want to go from machines to paper ballots, I think I would raise a question as to just why, but that sort of thing, I think, could be permitted as long as the type of excepted legislation could be stated clearly enough. The difficulty is that there will come a point where you are going to have to construe the exceptions also, and I think, probably, they do not go very much beyond the kind of example that I have given and that you have given.

Mr. McCULLOCH. Might we conclude, then, that of some of these examples you would suggest that the rule of reason would determine the question without the necessity for going to court?

Mr. KATZENBACH. I think it would be possible, but I suggest that they have to be pretty specific. For example, I can conceive of changes

in property requirements, for example, which I would be willing to contend would be in violation of the 15th amendment. I can conceive of other changes that might not be and it would seem to me to be very difficult to express that in precise terms without knowing in what State and under what circumstances and conditions these were put on. Mr. McCULLOCH. Would you think that a procedure which changed the election laws from a nonregistering requirement in a political subdivision to one requiring registration would be one that would require a declaratory judgment?

Mr. KATZENBACH. From nonregistration to registration, yes, I should think it would.

The CHAIRMAN. Would the gentleman yield?

Mr. McCULLOCH. Yes, Mr. Chairman.

The CHAIRMAN. Must not the procedures have the effect of abridg ing the rights guaranteed by the 15th amendment? Is that not correct? Mr. KATZENBACH. Excuse me, Mr. Chairman?

The CHAIRMAN. I say, is it not a fact that the keystone of this situation is that these changes in procedures that we are talking about, like changing from a paper ballot to a machine, may not likely have the effect of denying or abridging rights guaranteed by the 15th amendment?

Mr. KATZENBACH. Mr. Chairman, one would think so, but suppose that the change in procedures is simply to have the registrar office open 1 hour 1 day, every 2 months. There is very little opportunity under those circumstances for Negroes who have not been registered in the past to get registered. Even in a sense a most innocent kind of law, as our experiences have indicated time and time again, can be used. You change the place of registration, for instance. Granted, that sort of problem we can solve to a considerable extent, by the appointment of Federal examiners, but it has not been our desire in providing for Federal examiners to appoint them if the State registrars can be persuaded to do their job and to register under the laws as they should.

There is no sense to Federal functions here if the States will do their job. Indeed, if the States were willing to do their job there would not be any reason to have this law.

The CHAIRMAN. In other words, we are facing harsh conditions and we may have to have harsh laws?

Mr. KATZENBACH. I would not describe this law as harsh, Mr. Chairman. I would describe it as effective.

Mr. ROGERS. Mr. Attorney General, on page 9 of your statement this morning you said:

In Wilcox County, Ala., a Negro insurance agent became the first of his race to apply for registration in several years. Within weeks, 28 different landowners ordered him to stay off their property when he came to collect insurance premiums. To keep his job. the man had to accept a transfer and live away from his family, in a different county.

Also, on page 12 of your statement, you say:

In our view, section 7 of the bill, which prohibits intimidation of persons voting or attempting to vote under the bill represents a substantial improvement over 42 U.S.C. 1971(b). Violation of this section would be a felony and could result in the imposition of severe penalties which should prove a substantial deterrent to intimidation.

My question is: Would an individual be guilty of a crime under this bill in this Wilcox County case you have described where the man registered and then went out to carry on his business and the people he had been doing business with said:

No, if you are going to go down there and vote, I am not going to do business with you.

Would that constitute a crime?

Mr. KATZENBACH. I would think that it could, under appropriate circumstances, do so, particularly if this were part of a conspiracy by a number of people.

I do not know whether one person failing to give insurance premiums could be regarded as intimidating, threatening, or coercing. I think several acting together could be.

Mr. ROGERS. What I am trying to find out is: To what extent may the individual act and not be guilty of a crime under this bill? The bill is intended to protect an individual in his voting rights and not have persons to threaten him or intimidate him because he exercises those rights. That is what you are trying to get at and many are in sympathy with that goal. But as you and I know, being a criminal situation, the burden is upon the Government to prove it. What acts would constitute intimidation under this bill?

Suppose you say, "I am not going to speak to you anymore" or "I won't have anything to do with you because you went out and registered to vote." Would you explore that area with us as to how far we can go without committing a crime; do we commit a crime when we say we will have nothing to do with you because you did register or did vote? Mr. KATZENBACH. Like all of the criminal statutes that I know and that you are familiar with, Congressman, some situations fall on one side of the line and some fall on the other side.

I would think that it would be pretty clear if an employer called together all of his employees and said, "All right, anybody who goes down there and attempts to register to vote or votes is going to lose his job and I am going to be down at the polls and see who is there to register or vote and you are going to go the next day," then every person that went down there and attempted to register or voted was fired the next day, I would think that would be a pretty good case.

I think I can state less good cases. In fact, I think you stated one, that, "I am not going to speak to you anymore." Of course, I guesssuppose it depends on who it is.

Mr. ROGERS. There has to be a line of demarcation some place in the law as to what constitutes a crime and what does not.

Mr. KATZENBACH. That is right.

Mr. ROGERS. You and I know that in order to constitute a crime. the statute must be definite and certain and if it is not, then the Supreme Court is going to set it aside.

Mr. KATZENBACH. These are terms that have been used time and time again. These terms are very similar to those which appear in the present law. People have been prosecuted under those laws. I am sure that other people have been acquitted under them and it has never been declared unconstitutional for vagueness. If you can suggest, sir, language that makes it crystal clear what intimidation is, I would think that would represent a substantial improvement in the bill.