Mr. MCLEOD. I have certainly never met Mr. Katzenbach; I know both he and his predecessor were eminently qualified. The point is that what you are doing is determining voter qualifications in a Federal jurisdiction. Mr. ROGERS. But you are doing it under the State law. The point I am trying to make is that there is this requirement under section 5(b): "Any person whom the examiner finds to have the qualifications prescribed by State law in accordance with instruction received under section 6(b). ***," and so forth. Well, now, isn't it reasonable to assume that the Attorney General of the United States would instruct the examiners according to the South Carolina law? Mr. MCLEOD. I agree with you completely. Now let me show you what that will lead to. Mr. ROGERS. All right. Mr. MCLEOD. In the Langer case, Idaho, one of the Midwestern States, Governor Langer was convicted of a Federal offense. Mr. ROGERS. North Dakota. Mr. MCLEOD. Well, almost midwestern. Mr. ROGERS Yes. Mr. MCLEOD. The Governor was convicted and the question came up as to his conviction whether he was disqualified from holding office within the State of North Dakota. It was determined by both courts that he was disqualified. That is not necessarily the law in my State. The point is that the same decision may be made by your Federal registrars. I do not know what the law is myself. Their decision will be one thing and they will be required to decide whether this man is a resident of South Carolina or not, if he has been convicted, whether that is a disqualifying crime or if it is a crime in a certain jurisdiction, whether that disqualifies him. If you get a number of voters that will be permitted to vote because the name is on the list, I presume that a challenge can be made, although the wording in the statute here indicates that any subsequent challenge may be a violation of somebody's civil rights. But if a challenge is made in that election and the matter is taken to a State court, and there is a contrary adjudication by the State court of South Carolina that this man in fact is disqualified to vote or was not a resident or for some reason not related to discrimination is disqualified, then you have a statement by a State court that a man under their law is not qualified to vote and a finding by Federal authority that he is qualified to vote, and those votes may be the deciding factors in an important election. Mr. ROGERS. Now let's put it the other way around. You admit that under the bill, the list is made public and any listing could be challenged, but you say the time is so short that there is a possibility that that would be ineffective. But let's assume that the Attorney General has made certain regulations in connection with the law of the State of South Carolina. Suppose he decides some particular qualification is not the law of the State of South Carolina and they register people under it and they are listed and you challenge it. Now you go into Federal court, do you not, as a result of that challenge? Mr. MCLEOD. That is right. Mr. ROGERS. Once you get into the Federal court, then the question would arise as to the interpretation of the South Carolina statute. Now, isn't there a procedure whereby you could make application to the court that this matter be decided by the South Carolina court as being an interpretation of that statute? Mr. MCLEOD. You are reading that into the law; it is not there. Mr. ROGERS. But the present law is. Let's back up. As I think the law to be since the cases in 1938, 1939, the Supreme Court here said that when there is an interpretation of the State law, the State supreme court or the State should make the interpretation. Mr. MCLEOD. You are reading a doctrine of abstention into the act by the Attorney General that is not there. Mr. ROGERS. What I am trying to point out is that people of South Carolina would not be deprived of their own State laws. The interpretation by the Attorney General of the United States would not supersede any laws of the State of South Carolina except those which were discriminating against voters because of color. Now, that is what I am trying to point out. The CHAIRMAN. Gentlemen, we only have 13 more minutes; we cannot sit beyond 12 o'clock. We have a full schedule tomorrow and unless we are through with this gentleman at 12 o'clock, he will have to come back tomorrow night. Now, I do not want to have this gentleman inconvenienced, so I am going to ask the members to be very brief in their questions. I am going to yield to the gavel if they are not brief. Forgive me for saying that, but those are the exigencies under which we have to operate. Mr. ROGERS. I yield. Mr. CRAMER. Mr. Chairman, may I ask one brief question? Mr. ASHMORE. I do not know whether the Attorney General made it clear to the chairman or not, but he did not intend to read his statement; he wanted to submit it for the record and then make the summarizing statements. The CHAIRMAN. You have that permission and for any other additional statements you want to put in the record, sir. Mr. MCLEOD. Thank you. Mr. CRAMER. I have one brief question. Aren't you trying to make the point that, for the first time, a Federal official is making a determination, not necessarily with regard to literacy but with regard to other matters relating to the interpretation of State laws and State procedures, and therefore it is not pursuant to what you as attorney general of the State instruct those examiners that the State law is, or what the State supreme court cases determine to be, but what the Attorney General interprets the State law to be without consultation with you or anybody else in the State? That is the information and the regulations upon which the examiner makes his determination? Your only remedy is to later challenge in Federal court each and every voter registered upon the determination of the examiner. What you are asking is why should not the State attorney general be consulted with regard to the regulations in the first instance? Mr. MCLEOD. That would be the fairest thing that could be done, the least that could be done. I agree with you completely; that is exactly the point I was trying to make. You are taking the matter out of the hands of the States where it belongs. The CHAIRMAN. This is not the first time this was attempted. For example, shortly after the adoption of the 15th amendment, the Congress enacted a Federal Register Act providing for Federal registration in the various States in Federal elections and that law was held constitutional Ex Parte Siebold, 100 U.S. 3715 and United States v. Gale, 109 U.S. 65. Mr. MCLEOD. Insofar as the State elections were concerned I believe it was election for Members of Congress and presidential electors. The CHAIRMAN. That is right. Mr. MCLEOD. As a corollary to that I believe it is Ex Parte Perkins, I am not sure that that is it. It is a Georgia case arising under the 1878 act where the exact inconsistent position arose that I referred to a moment ago under that statute before it was declared unconstitutional. There you had a coroner of a county, a matter that ultimately went to the U.S. Supreme Court because of inconsistent findings by Federal registrars and determination of States. The CHAIRMAN. Have you go that citation? The CHAIRMAN. I would like to see that. Mr. MCLEOD. Yes, sir. I will be happy to do it. Mr. Chairman, gentlemen of the committee: I summarize my views upon this. No. 1, this bill clearly usurps State functions. 2. It seeks to amend the Constitution without following constitutional procedures. 3. Discriminates between States using and not using literacy tests. 4. Imposes unfair and unwarranted presumption of discrimination because of voter indifference. 5. Places an abitrary and harsh 10-year period of subjection to Federal election negotiation. 6. Changes American concept of convenience of courts. 7. Arbitrarily fixes one date as controlling time for application of the law. 8. Places a premium on illiteracy. 9. It operates on the theory that one perversion of the Constitution deserves another. 10. It does not seek to have literacy tests fairly and impartially administered-it seeks to abolish them in some States while permitting them in others. 11. It is a product of political panic. Thank you, Mr. Chairman, and gentlemen. The CHAIRMAN. Thank you, sir. I want you to know that we appreciate your coming this long distance to give us the benefit of your counsel and advice. I want to say to you that we have Mr. Ashmore on this committee and he is a very strong and able advocate. We always welcome his views and give them every possible reasonable consideration. Mr. MCLEOD. Thank you very much. The CHAIRMAN. Thank you, sir. Mr. ASHMORE. Thank you. Mr. CRAMER. Keeping my question brief, you have suggested in No. 7 that it arbitrarily fixes one date as controlling the application of the law. I note on the top of page 2 that the Attorney General said one of the requirements for bringing an area under the bill was that it maintained on November 1, 1964, any test or device as a qualification for voting. Do you interpret that to mean, as I do, that any State after the enactment of this bill could put into effect any test or device it wishes, so long as it is not discriminatory on the face of it, without being subject to this bill? Mr. MCLEOD. You are correct; yes, sir. Another factor to be borne in mind on that is with respect to the fact that if this law is made applicable after these determinations are made to a State, no subsequent change in the voting law can be made unless an action is brought to establish that that change is nondiscriminatory on its face. Mr. CRAMER. We have had on the record a discussion with a number of witnesses that even a change from paper ballots to voting machines in an area that has never discriminated would require approval of the three-judge court in the District of Columbia. Do you concur with that? Mr. MCLEOD. Yes, sir; I do. The CHAIRMAN. Thank you very much, sir. Mr. MCLEOD. Thank you. (Statement referred to follows:) STATEMENT OF DANIEL R. MCLEOD, ATTORNEY GENERAL OF SOUTH CAROLINA, BEFORE HOUSE COMMITTEE ON THE JUDICIARY, WASHINGTON, D.C., MARCH 30, 1965 I am Daniel R. McLeod, attorney general of South Carolina. I have served In that capacity since January 1959, and prior thereto I served as assistant attorney general for a period of 10 years. The bill before you (H.R. 6400) imposes further restrictions upon the rights of the States by amending the civil rights provisions of the statutes of the United States so as to further extend the authority of the Federal Government into areas which should be matters of State concern alone. During the period that I have been associated with the office of the attorney general of South Carolina, I have worked in close cooperation with the election officials of South Carolina. A great amount of my time is expended in consideration of problems which arise in connection with the application of the election laws. Necessarily, I have frequent communication with local and State officials charged with the conduct of elections and I, therefore, believe that I am familiar with the problems encountered by election officials in my State and particularly with any disputes that may arise in the conduct of elections or procedures connected therewith. Although the statutes of South Carolina provide a simple, prompt and adequate remedy to anyone who claims the denial to be registered to vote, no complaint has reached my office during the last 14 years, alleging that any individual has been denied the right to register in order to vote. Nor am I aware of any proceeding that has ever been taken by way of appeal from a denial of registration. Had such an appeal been made, I am confident that I would know of it. In May 1958, 538,915 persons were registered to vote in South Carolina. Of this number white registrants comprised 89.2 percent (480,793) and colored registrants comprised 10.8 percent (58,122). On September 21, 1964, the total registration in South Carolina was 772,572. No comparative figures of white and colored registrants is available as of that date, but the number of colored registrants has, to my knowledge, sharply decreased. It is, therefore, clear that there is an absence of discrimination in the registration of voters in South Carolina, as indicated by the total lack of complaints from denial of registration and as evidenced by the increased percentage of colored persons who have registered to vote. This is evidenced also by the statement contained in the 1961 Report of the Commission on Civil Rights with respect to South Carolina, in which it is stated: "The Commission has never received any sworn complaints from South Carolina." The South Carolina Advisory Commission to the Commission on Civil Rights reported in 1961: "*** In the hometown of the committee members, no denials of the right to vote were observed. "No case alleging the denial of the right to vote was brought before the committee." The determination of a prospective voter's qualifications should be vested in the States where it has historically rested, and the attempt to impose upon the States the authority of a Federal board of registration can only lead to hostility and chaos in the elective processes. The power given the Federal Government under this legislation is a dangerous power which can be used to subvert our democratic processes. It should not be granted to the Federal Government, but should remain in the States, where it was constitutionally intended to reside. This bill should be rejected for the following reasons: 1. Usurps State functions. 2. It seeks to amend the Constitution without following constitutional procedures. 3. Discriminates between States using and not using literacy tests. 4. Imposes unfair and unwarranted presumption of discrimination because of voter indifference. 5. Places an arbitrary and harsh 10-year period of subjection to Federal election negotiation. 6. Changes American concept of convenience of courts. 7. Arbitrarily fixes one date as controlling time for application of the law. 8. Places a premium on illiteracy. 9. It operates on the theory that one perversion of the Constitution deserves another. 10. It does not seek to have literacy tests fairly and impartially administered-it seeks to abolish them in some States while permitting them in others. 11. It is a product of political panic. The CHAIRMAN. We will now hear our distinguished Representative from California, the Honorable Phillip Burton. I am sorry we have to call you at 5 minutes to 12, that makes it rather tight for you. STATEMENT OF HON. PHILLIP BURTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. BURTON. Thank you, Mr. Chairman, and members of the committee. I would first like to offer my own highest commendation to you, Chairman Celler, for your most effective and adequate leadership in the effort to make real our democratic processes. I would also like to take note of my high esteem for the ranking Republican on this committee, Mr. McCulloch, who was so helpful in your joint venture in the last session on the 1964 civil rights bill. I am sure we all lament the fact that the 1964 legislation did not contain comprehensive voting rights provisions and hence the problem pending before the Congress at this time. I have a number of observations and suggestions I would like to make with reference to the President's voting rights bill. First on page 7, section 7, it appears that this might be the proper portion of the bill to include some language that makes it clear that those helping assist voters register or go to the polls be given the |