Mr. MAYS. No; it is more than a burden of proof, we have a constitutional question.

May I state it again this way: Article I, section 2, gives the State carte blanche power to determine what the provocation of voters are. Out of experience

Mr. LINDSAY. That article was adjusted by the same amendment. Mr. MAYS. And two others. To the extent that that is changed by those amendments, it has been modified, but except as to those degrees and in those ways, it stands as it is.

Now, there is nothing in the three modifying amendments which take away the literacy tests. It simply says that you must not discriminate against colored people; it does not take away the test, it simply says you must apply the test uniformily when there is a discrimination and appropriate legislation may be applied to do it. But appropriate legislation does not include something which would violate the other provisions of the Constitution and you are trespassing again on article I, section 2, if you do.

I see you shake your head, sir, but you are saying in effect that it was not necessary to amend the Constitution to take care of the colored people, it was not necessary to take care of the women, it was not necessary to take care of the poll tax, we could have done it by legis lation in the last 100 years. That is a novel thing.

Mr. LINDSAY. I do not wish to prolong this. I must say that the 15th amendment states that literacy tests shall not be used discriminatorily and where there are reasonable findings to that effect, the Federal Government under the 15th amendment has the power to see to it that they are eliminated.

Mr. MAYS. Well, the 15th amendment does not deal with literacy tests at all, it says there must be no discrimination between the races. Mr. LINDSAY. And section 2 of the 15th amendment gives Congress the power to do whatever is necessary in order to guarantee the right contained in the 15th amendment.

Mr. MAYS. Whatever is appropriate. My point is that in doing something which the Congress deems appropriate, it must not infringe upon the part of the Constitution that is still there if these tests that the State has are still within the States' power.

Now if you find it is abused in a given State and we set up machinery by which a Federal representative can come in and watch it and police it and see in one way or another that the 15th amendment is enforced so there is no discrimination, all right; but I can't come there and say we will do a literacy test, that is a constitutional right the State has.

Mr. LINDSAY. We won't debate that point because I think we have discussed it earlier. The State can be free of the effects of the bill if it demonstrates it has not discriminatorily used literacy tests against the Negroes.

Mr. MAYS. The State does not have to be put to that under the Constitution.

Mr. LINDSAY. Thank you.

Mr. ROGERS. Thank you. We appreciate your being here.

Mr. Tuck. Thank you.

Next is the attorney general of Virginia, Mr. Robert Y. Button.

STATEMENT OF HON. ROBERT Y. BUTTON, ATTORNEY GENERAL OF THE STATE OF VIRGINIA

Mr. BUTTON. Mr. Chairman, gentlemen of the committee: My name is Robert Y. Button and I am currently attorney general of Virginia. I have not had an opportunity to correlate my statement with that of Mr. Mays; I regret there will be some repetition.

H.R. 6400 is among the most dangerous pieces of legislation ever offered in the Congress of the United States. I make this statement advisedly, for I earnestly believe it goes further than any step yet attempted to erode the basic concepts of constitutional government in which the individual States are acknowledged to be sovereign. The legislation is not only patently unconstitutional, but it is shockingly discriminatory.

Section 2 of H.R. 6400 provides, "no voting qualification or procedure shall be imposed or applied to deny or abridge the right to vote on account of race or color." Enactment of this section is fully justified by the inhibition of the 15th amendment to the Constitution of the United States.

Surely, no one will argue with the wisdom of that prohibition; yet, by some mental gymnastics not yet clearly determined, the authors of H.R. 6400 have reached the amazing conclusion that requiring a person to read or write his own name in registering to vote is a voting qualification which abridges the right in question on account of race or color.

Apparently, such a requirement is considered in some States a "test or device" which abridges the right to vote on account of race or color. How, then, are we to determine the States in which such a test or device violates the proscription of the 15th amendment?

It will be seen from the provisions of section 3 that this bill would apply to States that maintained on November 1, 1964, some "test or device" as a qualification for voting only (a) if less than 50 percent of the persons of voting age were registered on November 1, 1964, or (b) if less than 50 percent of such persons voted in the presidential election of 1964.

Take particular note that it does not apply equally to all States, even though there may be in effect a voter qualification, test, or device in a State to which the law does not apply, far more stringent than that utilized in a State to which the legislation does apply.

In Virginia, for example, a prospective voter is required to register in his own handwriting. Under this bill, such a requirement could be construed to constitute a "test or device."

In November of 1964, only 41 percent of the voting age population of Virginia voted in the presidential election. In Alabama, 36 percent of the adults voted; Alaska, 48.7 percent; Georgia, 43.2 percent; Louisiana, 47.3 percent; Mississippi, 32.9 percent; South Carolina, 38 percent.

Although less than half of the adults of Arkansas and Texas voted in that election, these States reportedly employ no "test or device" as defined in this legislation and would therefore be excluded from its provisions.

Although less than 50 percent of the adults voted in Virginia in 1964, this circumstance surely cannot be attributed to any discrimina

tion in registering prospective voters, since more than 50 percent of the adults were registered at the time.

Despite the fact that 1,311,023 adults were qualified to vote in the 1964 presidential election, and despite the unprecedented efforts of both major political parties to encourage those persons to vote, only 1,042,267 eligible persons voted; 268,756 failed to exercise their franchise.

Notwithstanding, under the test prescribed in this legislation, the State of Virginia will be penalized for the failure of those registered voters who did not take sufficient interest in the candidates offered for their consideration in 1964 to exercise their franchise.

The basic premise of this legislation thus fails; for, despite the absence of a "test or device" in States such as Arkansas and Texas, less than 50 percent of the adults voted in the last presidential election.

On the other hand, the State of New York has a literacy test far more rigorous than that employed in some States but, because 63.2 percent of the adults in that State voted in the last election, New York is exempt from this punitive legislation.

This bill manifestly brings about the very evil it purports to cure; namely, the creation of a separate and distinct standard of voter qualifications in all elections. No person with the slightest regard for the Constitution of the United States could conceivably read this legislation and fail to conclude that it abolishes all qualifications for voting within a minority group of States, while simultaneously permitting all other States to impose their own qualifications no matter how stringent they may be.

This, gentlemen, is not only unconstitutional; it is discrimination of the rankest order-discrimination that has neither reasonable classification nor rational justification.

Section 2 of article 1 of the Constitution of the United States specifically provides that the electors in each State shall have the same qualifications requisite for electors of the most numerous branch of the State legislature. It has always been uniformly considered the right of the various States to set the qualifications for the electors of the most numerous branch of its State legislature.

With the exception of the prohibitions against classifications based upon race or sex enunciated in the 15th and 19th amendments, no provision of the Constitution of the United States has to this date changed that fundamental principle. Indeed, the principle was expressly reaffirmed in the 17th amendment. And yet, if a State falls within the provisions of this bill or if, in the uncontrolled judgment of the Attorney General, Federal examiners are appointed, such examiners will then register and place on the list of those eligible to vote persons who may not be qualified under State law.

In other words, the Federal Government will disregard the qualifications of the States and setup its own rules and regulations for persons who may register and vote in all elections-Federal, State and local.

This action on the part of the Federal Government would apply only to those States in which Federal examiners were appointed, either because those States were indicted under section 3, or because, in his unfettered judgment, the Attorney General thought the same

necessary.

This would mean that in all other States the law applicable to the qualifications of electors would still be in force and govern; while in the small minority of States in which Federal examiners were appointed, this would not be true.

The Federal Government would thus apply its judgment as to qualifications of electors in certain States and not in others. This would be the most far-reaching denial of constitutional State power yet devised and the obliteration of the most fundamental rights of the States by their transfer to the Federal Government.

In practical effect, the States so irrationally indicted and (though guiltless of racial discrimination) convicted without trial would no longer be sovereign entities but simply departments of the Federal Government.

Also, if examiners are to be appointed in some political subdivisions of the States, different rules as to registration would apply in those subdivisions having examiners and those which do not. In those subdivisions where no examiners were appointed, the laws of the State would still be effective.

If we are to assume this legislation is to stand or fall on the strength of the 15th amendment, we should look to the question of voter discrimination based on race or color. I can, of course, speak only for Virginia.

The U.S. Commission on Civil Rights, in its 1961 report on voting, found no discrimination in Virginia on account of race or color. Indeed, there has been no report of any recognized agency or responsible individual which even suggests that discrimination exists in Virginia in the right to vote on account of race or color.

Moreover, anyone who had the temerity to allege that Negroes are denied registration or the right to vote in Virginia because of their race could not sustain that allegation by proof and would be guilty of manifest and willful misstatement.

In the city of Richmond, where there is a large Negro population, 14,986 Negroes applied for registration in 1964 alone, and 14,786 were duly registered. Only 200 applicants were rejected, and the applications of these 200 on file in the registrar's office reveal that these 200 were rejected solely because they were unable to fill out the registration form which merely required-and this is what Virginia requires on an application form-insertion of the applicant's age, date and place of birth, residence and occupation at the time of registration and for 1 year next preceding, whether or not he has previously voted, and if so, the State, county, and precinct in which he last voted. That is not a literacy test.

Richmond is typical of the State as a whole, and no person who has even attempted to inform himself can truthfully state that Negroes in Virginia have been subjected to discrimination in either registration or voting.

Mr. McCULLOCH. May I interrupt at that point?

Mr. BUTTON. Yes.

Mr. McCULLOCH. I was impressed by your reciting the law of Virginia with respect to its qualifications for voters. Must the applicant to register, or must a voter be able to read those qualifications himself or may he meet the test by having them read to him and orally answering the questions?

Mr. BUTTON. He has to read them and answer in his own handwriting.

Mr. McCULLOCH. Thank you.

Mr. BUTTON. And that is all of the questions that are asked of him, sir. Those questions are printed on the form that are given to him. Now, it is true under our law, that the registrar may question him but he can only question him as to his qualification as an elector; that is, whether he has ever been convicted of a felony and so forth.

Indeed, no accusation has been received from any quarter that any person of voting age in Virginia, whether white or Negro, has ever been denied the right to register or vote by imposition of a "test or device" based on race or color.

I would also focus your attention on the power conferred upon the Federal Government in this legislation which would discriminate against registered voters who do not elect to vote.

Under this bill, Federal examiners are to be appointed in the minority States to which the enactment applies. These examiners prepare and maintain lists of persons eligible to vote in Federal, State, and local elections.

If, for any reason, those registered voters-whether white or Negro-do not see fit to vote at least once during 3 consecutive years, their names are to be removed from the list.

I have always entertained the view that the right to vote was just that a personal right, not a governmentally imposed obligation.

So far as I am aware, there has never heretofore been proposed a Federal law which would compel a State to see that registered persons actually voted, or to penalize registered voters for failure to exercise the franchise.

To insure that illiterates, felons, and other unqualified individuals do not vitiate the electorate, many States have imposed some form of voter qualification. This power, exclusively one reserved and confirmed to the States, has heretofore been founded upon article I, section 2, of the Constitution of the United States and the 10th amend

ment.

Apparently, Congress is now to substitute its own judgment for that of the individual States regarding voter qualifications, not only in Federal elections but in State and local elections as well.

Thus, the States affected by this legislation will be compelled to extend the franchise indiscriminately to all, or to anyone deemed to be qualified in the unlimited discretion of a Federal examiner.

Finally, with due respect, I offer this admonition. This bill is merely one step in a scheme for ultimate Federal control of the conduct of all State and local elections-even to the extent that later there will be federally appointed election officials in elections involving public office in every State, county, city, and town in the Nation, as well as elections upon such limited questions as creating local debt or imposing local taxes.

Today, it is a select minority of States which Congress is so gleefully and impetuously grinding under its heel.

Tomorrow, under other circumstances, your own States may feel the weight of this tyranny, for surely there is no man here so blind as to be unable to see that the criteria designed today to eliminate the reasonable voter qualifications in Virginia can as easily be redesigned