standard. It is objective and can be established objectively, an for that reason we do not prohibit its use.

The CHAIRMAN. In other words, you do not think there are man cases of that kind?

Mr. KATZENBACH. I do not believe so; not for felonies, Mr. Chair man, but a good many more misdemeanors.

The CHAIRMAN. You speak of the payment of poll taxes and unde H.R. 6400 any one applying can pay a poll tax to the Federa examiner?

Mr. KATZENBACH. Yes, sir.

The CHAIRMAN. But there would be no payment of a cumulative poll tax?

Mr. KATZENBACH. Yes.

The CHAIRMAN. As you know, we have a constitutional amendmen which abolishes payment of poll taxes as a condition precedent in Federal elections?

Do you believe that poll taxes should be abolished even in State elections?

Mr. KATZENBACH. Do I?

The CHAIRMAN. Yes.

Mr. KATZENBACH. Yes; I would like to get rid of poll taxes.

The CHAIRMAN. Can we do this by statute without a constitutional amendment?

Mr. KATZENBACH. I think it is very difficult, Mr. Chairman, to do it by statute. There is presently pending in the Supreme Court a case which the Supreme Court will hear at its next session and may do that job.

A constitutional argument can be made that the poll tax, as a condition precedent to voting, is a restriction against voting which is unwaranted by the Constitution, whether applied discriminatorily or

not.

That argument is being made to the Court. Of course, if the Court should come to the conclusion, as I think it might, then poll taxes would be eliminated at State elections.

At the moment, the laws as laid down by the Supreme Court are to the contrary. It holds that poll taxes can be used. This bill is based on the 15th amendment and to eliminate poll taxes on the basis they have been very often used to discriminate, I think, would be a difficult case constitutionally to prove and establish.

The reason for that is somewhat ironic, Mr. Chairman. The reason for that is that while you can find evidence they have had poll taxes in a number of the States that discriminate, and that they enacted them with discrimination in mind, they have, in fact, used the other tests and devices which I have described to eliminate Negroes from voting, to prevent them from voting.

It makes it difficult for us to establish in those areas, by evidence that we could present to Congress, that the poll tax has been very often used for that purpose.

What, in fact, happened is that Negroes who cannot register because of other tests have not had any incentive to pay their poll tax. It is for that reason we knock out the cumulative or the back poll taxes because I think there we can make the constitutional case, there being no incentive for a Negro to pay a poll tax since he could not register anyhow, and that should not now be used, nor in the future, to bar him from voting.

I have no doubt as to the intent of poll taxes. I think personally they are bad. I think one can make a 14th amendment argument and hat is being made before the Court, but I think there is some diffialty on the present state of the evidence to make a 15th amendment

argument.

What concerned people who worked on this bill, Mr. Chairman, was the fact that if the Supreme Court should determine, in accordance with the past law on this subject, that poll taxes or payment of poll res, can be a condition precedent to voting, and if we took care of the situation by eliminating the poll tax on the 15th amendment basis, and if we were then to lose that particular provision in court, we would not be able to get people registered to vote in the coming

Actions.

The problem would then go on while a new provision was introduced ere. People who have been denied, for years, would be prevented the right from voting in the next election.

The difficult choice faces us because I think all of the people who really worked on this bill wanted to get rid of poll taxes and felt, as I did, and as I do, there was a constitutional difficulty to that. They felt if we had to make some sort of "Solomon-like decision" they would Father go through the distasteful process of collecting a State poll tax and making sure people voted than to take what we regarded as a substantial risk of unconstitutionality. I think the case presently efore the Supreme Court is a stronger case for the abolition of the poll tax than the 15th amendment basis would be.

If that case should not abolish the poll taxes, I think we would have difficult job of abolishing them on the 15th amendment basis.

That is the reason for what I regarded as a rather distasteful provision but it seemed to me that at least we were not ingenious enough to figure a way out of it.

If this committee can, I would welcome its suggestion.

The CHAIRMAN. Do you not, in essence, argue for abolishing the poll tax when you say there can be no demand for accumulated poll taxes?

Mr. KATZENBACH. Mr. Chairman, I think we make the argument that Te can abolish the cumulative poll tax and the argument for abolishing that is on the basis of the 15th amendment; as to past poll taxes, there Tas no incentive for payment on the part of those who were being denied the right to vote in violation of the 15th amendment and on ther grounds. That is, by literacy tests and so forth.

It would be unfair to require payment for past years when they were being denied their 15th amendment rights.

I think we can push the 15th amendment that far quite safely. To go further-and I know there are those that disagree I guess that every Member of this committee would agree that, at least, it is a close question, not a clear-cut question as to abolition under the 15th amendment.

The CHAIRMAN. Am I correct that today there are five States which have a poll box-Mississippi, Alabama, Virginia, Arkansas, and Texas?

Mr. KATZENBACH. Yes, I think that is correct. I think the poll tax really discourages voting by anyone. Take a State where there has not been any of these other tests and devices for some years; in my judgment Negroes have not been discriminated against and poll taxes

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

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

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

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

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

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

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

Mr. KATZENBACH. The States of Louisiana, Mississippi, and Ala bama, would be barred for substantially 10 years from the enactmen 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 cour decisions.

If there were new court decisions in this respect, those periods migh 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. Tгck. Is that not the effect of your recommendation?
Mr. KATZENBACH. I certainly would not put it that way, Congress-
a. I suppose what you are suggesting is that the State falls within
e objective criteria and it has to come in and prove absence of dis-
rmination. That is true, but if Virginia, for example, has not been
scriminating, I do not see any great difficulty in their coming in
d establishing that.

can.

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

Trginia.

The CHAIRMAN. Mr. Attorney General, in addition to the required ermination that less than 50 percent of the voting age population ad not registered, or had not voted, this will empower you, as Atorney General, to certify after you received meritorious complaints from 20 persons that there has been a denial of the right to vote by Pason 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 onditions that put a State or political subdivision within this law : (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 in my capacity, to read the law of the State and certify that they are 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
less than 50 percent voted in the November 1964 election.

If these conditions are met, then a State is within these provisions-
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 hose States, within those counties that are already covered by that tion, 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”.

Itake 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!

for v

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

The CHAIRMAN. Mr. Rodino?

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

46-535-65--3

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

In 1957, 1960, and 1964 the Congress attempted to eliminate th obstacles and abusive practices that have prevented many of our cit zens from exercising their right to vote. These remedies, it is no clear, have been inadequate to cope with the deliberate refusal of thos who are determined to deny their fellow Americans their right to vot because of race or color.

I concur with the statement of President Johnson in his Message t 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 th democratic process. Equality depends not on the force of arms or tear ga but depends upon the force of moral right-not on recourse to violence but c respect for law and order."

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

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

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

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

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

Mr. KATZENBACH. I use the 50 percent figure, Congressman, becaus looking at the problems statistically I find that the average numbe throughout the country who registered and who voted, with som exceptions, runs to an average of about 61 percent. There was qui a gap in the national average. There is quite a gap between the na tional average and the figure 50 which was selected. Obviously an 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 involve and the counties involved, there would seem to be quite a direct rel tionship between the low registration and voting figures in those State as compared to the whole population, and the fact that a low numbe of Negroes are registered.