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Negro suffrage in relation to American federalism, 1957-63

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Title:
Negro suffrage in relation to American federalism, 1957-63
Creator:
Anderson, Robert L ( Robert Lee ), 1931-
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English
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iii, 194, [1] leaves : ; 28 cm.

Subjects

Subjects / Keywords:
African Americans ( jstor )
Citizenship ( jstor )
Civil rights ( jstor )
Congressional elections ( jstor )
Federalism ( jstor )
State elections ( jstor )
United States government ( jstor )
Voter registration ( jstor )
Voting ( jstor )
Voting rights ( jstor )
African Americans -- Suffrage ( lcsh )
Dissertations, Academic -- Political Science -- UF ( lcsh )
Federal government -- United States ( lcsh )
Political Science thesis Ph. D ( lcsh )
City of St. Petersburg ( local )
Genre:
bibliography ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis - University of Florida.
Bibliography:
Bibliography: leaves 186-194.
General Note:
Manuscript copy.
General Note:
Vita.

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University of Florida
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This item is presumed in the public domain according to the terms of the Retrospective Dissertation Scanning (RDS) policy, which may be viewed at http://ufdc.ufl.edu/AA00007596/00001. The University of Florida George A. Smathers Libraries respect the intellectual property rights of others and do not claim any copyright interest in this item. Users of this work have responsibility for determining copyright status prior to reusing, publishing or reproducing this item for purposes other than what is allowed by fair use or other copyright exemptions. Any reuse of this item in excess of fair use or other copyright exemptions requires permission of the copyright holder. The Smathers Libraries would like to learn more about this item and invite individuals or organizations to contact the RDS coordinator(ufdissertations@uflib.ufl.edu) with any additional information they can provide.
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NEGRO SUFFRAGE IN RELATION TO

AMERICAN FEDERALISM, 1957-63













By
ROBERT LEE ANDERSON


A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF PHILOSOPHY











UNIVERSITY OF FLORIDA


August, 1964














TABLE OF CONTENTS


Chapter


I. FEDERALISM UNDER PRESSURE . . . . . .

States Rights and Responsibilities .
Leadership of the Western World . .
The Welfare State . . . . . . .*. .
A Lack of Consistency . . . . . . ..

II. THE FEDERAL TIDE . . . . . . . . . . .

The Flow Stage . . . . . . . . . . .
Ebb Tide . . . . . . . . . . . . . .
Between Ebb and Flow . . . . . . . .

III. THE CIVIL RIGHTS TEMPO INCREASES . . .

The Federal Judiciary in the Forefront
A Changing Climate . . . . . . . . .
The 1957 Civil Rights Act . . . . . .
The 1960 Civil Rights Act . . . . .

IV. THE EXPANDING "FEDERAL PRESENCE" . . .

Expansion of a Technique . . . . . .
Economic Coercion . . . . . . . ..
Enjoining State Criminal Proceedings Enjoining a School Board . . . . . .

V. TOWARDS UNIFORMITY . . . . . . . . . .


The Demise of the Louisiana Interpretation
Test . . . . . . . . . . . .. . . . .. .
The Citizenship Test . . . . . . . . . . .
The Voter Application Form is Attacked .
Pressure on the Literacy Test . . . . ...
A Lesson Unlearned . . . . . . . . . . ,

VI. CAUSE FOR CONCERN . . . . . . . . . . . . . .


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135 141 149 151 159

163


Page


10
. . . 8 . . . 10 . . . 13 . . . 14

. . . 23

. . . 23 . .. 40
. . . 45

. . . 61

. . 61 . . . 67 . . . 74 . . . 85

. . . 96

. . . 103 . . . 110 . . . 117 . . . 122

. . . 126








Page


APPENDIX

A. Relevant Pre-1957 Civil Rights
Statutes . . . . . . . . . . . . 179
B. The Georgia Voter-Registration
Examination . . . . . . . . . .... 181
C. The Louisiana Voter Application
Form ................. 184

BIBLIOGRAPHY ........ ............ 186


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CHAPTER I


FEDERALISM UNDER PRESSURE

In 1939 Professor Harold J. Laski concluded that the epoch of federalism was over.1 His was a common pessimism. In that year many of his less literary contemporaries, barely emerging from the wringer of the Great Depression, would have agreed that something was "wrong" with their government. Like the reports of Mark Twain's death in his own time, such gloomy reports on federalism as Laski's made in the gray decade of the Great Depression today seem perhaps somewhat exaggerated from our more comfortable position in the 1960 ' s.

Although federalism as a system of government has not passed from the world scene, it exists in a decided minority of present-day states. Only four states are today generally
acknowledged by writers on federalism to employ the federal system of government: Australia, Canada, Switzerland, and the United States.2 These four states are non-conformists in a world society of unitary governments.

1Laski, "The Obsolescence Of Federalism," TJje Reoublic. May 3, 1939, p. 367.
2See, for example, Livingston, Federalism and ronstitutional ChanCe (1956) and Wheare, Federal Govrnment (3rd ed. 1953).


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* -2-


The precise standard used to classify these states, that is, the definition of federalism employed, varies somewhat, though not greatly, from scholar to scholar. K. C. Wheare, for example, defines the "federal principle" as "the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent."3 William 8. Livingston sees federal government as
a form of political and constitutional organization that unites into a single polity a number of diversified groups or component parts so that the personality and individuality of the component parts
are largely preserved while creating in the new
totality a separate and distinct political and constitutional unit.

Livingston goes on to suggest some characteristics of federalism which are found to be common and frequently described as essential to federal systems. He reserves judgment, however, as to whether particular characteristics are absolutely necessary. These characteristics areas (1) a written constitution, (2) a formal distribution of power (3) a constitutional interpretation of the terms of distribution; (4) representation of the states as states in the legislaturer (5) dual citizenshipp (6) an executive with federal qualities, for example, a state-based electoral college in the United States for choosing the president and Senatorial approval of executive appointments (7) a process of constitutional amendment.5

heare, S. M. a note 2, at 11.
4Livingston, SM. S& ggA note 2, at 9.

5g1. at 10-11.






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Both Wheare and Livingston agree that in classifying governments one must go beyond mere outward appearances and ascertain how the government in question actually operates in practice. Thus Wheare found that although the Canadian Constitution was "quasi-federal in law," it was "predominately federal in practice."6 On the other hand, Livingston found that in the "four ostensible federal systems" in Latin America at the time (1956), federalism had "been confined to the constitution" and "had little effect on the processes of government."7 Both Wheare and Livingston confine the federal classification to the four states previously mentioned.
A similar classification of these four states might be arrived at by defining federalism in yet another way as "a division of powers between central and local governments by an authority superior to both and in a way that cannot be changed by the action of either the local or central unit acting alone."8 In essence this definition and those of Wheare and Livingston are not widely divergent.
The theory and practice of federalism has intrigued scholars generally and in no place more than in the United States. Any number of studies have been and are being made

6Wheare, .* Sg&. AM note 2, at 21.
7Livingston, R. i* sura note 2, at 293.

8Swarthout and Bartley, Princiles and ProblesI of American National Govenmnt 89 (2d ed. 1956).






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concerning American federalism.9 It is nevertheless of

moment to make a limited examination of American federalism today. Federalism is an ever-changing concept and

analysis of present status, contrast with past position, and

some attention to future development is always in order.

Professor Laski's examination was concerned to a large

extent with economic ills and the federal system, reflecting

quite naturally that paramount problem of those times. When

we look at the American federal system today, however, we

find that it is suffering from another major ailment. Albeit

economic ills still persist,10 they are not paramount. The

present disorder has been long incubating and virulent symptoms have appeared periodically, but it is in the last several

decades, and more precisely in the last decade, that the affliction has become more pronounced and demanded almost

9Some of the more recent studies which deal wholly or
in part with American federalism are: Anderson, The Nation and the States: Rivals or Partners? (1955); Benson, Essays In Federalism (1961); MacMahon (ed.), Fderalism: Mture and Emercet (1955); Morley, Freedom and Federalism (1959); Rockefeller, The Future of Federalism (1962).
Of the older studies the following, among others, are of interest to students of federalism: Benson, Te New Centralization (1941); Brogan, The Crisis of American Federalism (1944); Clark, The Rise of a New Federalism (1938); Pound, Federalism as a Democratic Process (1942).

10In his State Of The Union Message of January 8,
1964, President Johnson declared that poverty was a national problem and pledged his administration to war against it. The President estimated that one-fifth of American families had incomes "too small to meet their basic needs." H. R Dc, No. 251, 88th Cong., 2d Sess. 3 (1964).
For a detailed description of the "one in every five" who is poor see Bagdikian, "The Invisible Americans," Saturday Evening Post, Dec. 21-28, 1963, pp. 28-39.






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constant attention. It is primarily with civil rights ills that American federalism must contend in the Age of Atom and Space.
American federalism has suffered from "civil rights malnutrition." Mobs, police dogs, and terror are the reasulting scurvy. One need only scan the daily newspapers to follow the epidemic. Treatment has been most vigorously demanded, profusely prescribed, and in some instances applied. The prognosis is still uncertain. As is the case with some diseases, affliction with this one may, in the end, make the patient healthier overall and the stronger for his suffering. It may confer some degree of immunity for the future. Conversely, however, such affliction may lead to his general debilitation and ineffectiveness and, at the very extremane, to his ultimate demise in spite of well-intentioned treatment.
It is perhaps argumentative and arbitrary to attempt
to isolate a paramount civil right, to single out a particular one as more important than any other, and to say that this or that particular one is of the essence for our democratic system and the federalism within which it operates.
Nevertheless one particular right, the right to vote, has been selected for discussion and analysis. The struggle for Negro suffrage will serve as a study to gain insight into the character of American federalism with particular reference to the period 1957 through 1963.

American federalism is passing through what might be

called the Age of Civil Rights. The effect of this experience









upon federalism in the United States can perhaps be glimpsed through a study of the efforts by the federal government to expand and to protect this one particular right, the right to vote, by the removal of racial restrictions upon that right.
This particular right is chosen as a focal point because it can be plausibly maintained that access to the ballot is basic to the enjoyment of any other rights claimed under the Constitution. The right to vote provides the democratic means of redressing onerous restrictions of other rights, be they infringements upon freedom of speech, assembly, or any other rights. The possession of the franchise provides a means of removing those inequities which are often applied openly and brazenly to the disfranchised. Conclusions reached in this study may furnish some insight into what may be the general effect upon our federal system of the effort to cure other civil rights ills.
Political disfranchisement came fourth in Myrdal's

"Rank Order of Discriminations."11 The frenetic activity of

13Ayrdal's ranking is as follows
"Rank 1. Highest in this order stands the bar against intermarriage and sexual intercourse involving white women. Rank 2. Next come the several etiquettes and discriminations, which specifically concern behavior in personal
relations.
Rank 3. Thereafter follow the segregation and discrimination in the use of public facilities such as schools,
churches and means of conveyance.
Rank 4. Next comes political disfranchisement. Rank 5. Thereafter come discriminations in law courts, by the police, and by other public servants.
Rank 6. Finally come the discriminations in securing land, credit, jobs, or other means of earning a living and
discriminations in public relief and other social
activities." (An American Dilema SeoP
lm and ModernDemocracy 60-61 [1944.






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several of the Southern states with heavy Negro population to restrict Negro suffrage, and the resulting burgeoning of suffrage litigation point to the importance of the suffrage. Although the importance of voting is sometimes popularly deprecated,12 unreasonable and arbitrary restriction on it leaves those to whom it is denied little recourse for redress of grievances or expression of discontent but the streets. Action in the streets, as recent events have demonstrated, is an alternative that has been accepted with increasing frequency by American Negroes. Street demonstrations and attempts to paralyze governmental functions by civil disobedience are productive of conflicting emotions within American society and are quite possibly as inimical to minorities as the evils they protest.

The right to vote is chosen as an observation ground in studying present-day American federalism not only because it is in the deepest sense fundamental in a democratic system but additionally because it presents in a very dramatic way the confrontation of the "two sovereignties." Here on the one hand stands the federal government committed, albeit unevenly,13 to the promotion and protection of this right of


12Keats, "Stay Home and Don't Vote," Te Saturday Evening Post, October 26, 1963, p. 8.
13"Unevenly" because the executive branch of the federal government and the federal judiciary, as will become apparent in the following cha-ters, have shown a commitment usually in advance of the Congress.









the franchise. On the other hand stand various states which are firmly committed to defending from federal incursion what they consider a matter of state control, state prerogative, or "states' rights." After such clashes of this type neither contestant is ever quite the same again.

States Riahts and Resonatilities

Today the term "states rights" strikes a discordant note in many an ear. To many persons the term means secondclass citizenship. To such persons, "states' rights" means racism. "States' rights" means the "right" of the state to discriminate among its citizens solely on the grounds of color. "States' rights" means to provide inferior education to the Negro,14 the "right" of the state to dispense two
kinds of justice conditioned on the color of the person's skin,15 and the "right" of the state to frustrate attempts to register and vote.16 Indeed, when such uses of "states' rights" have been re-enforced by over one hundred years of repeated experiences, the difficulty of entertaining any other notion of the meaning of "states' rights" is readily apparent.
The tendency of those persons, who so interpret the term, to look to the federal government for assistance, and

148ee, in general, U. S. Commission on Civil Rights,
1961 Commission on Civil Rihts Reort. Book 2. Education (1961).

15See, in general, U. S. Commission on Civil Rights,
1961 .CMmssion on Civil Rihts Report, Sook 5. Justice (1961) [Hereinafter cited as 1961 Reort on atice.
16See, in general, U. S. Commission on Civil Rights,
261 Cmmiss on Civil Rihts Report, Z 1 V (1961) Rereinafter cited as 1961 Renort on Votial.


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to urge upon it additional powers for redress of grievances unanswered at the state and local level, is little to be wondered at. Local government could not or would not rise to the occasion. There was no alternative. This is an ominous sign of malfunction in federalism lending weight, perhaps, to Professor Laski's conclusion. If, as Madison said, the affection of the people will lie with the government which is best administered,17 the federal government has been garnering the affection of a large group of persons upon the grounds of its attempts at, and moderate successes in, administering the civil rights guarantees of the Constitution.
Unfortunately, as with most political terminology,
there are no rules on the use of the term "states' rights." If there were, perhaps its use could be happily restricted to those for whom "rights" also imply responsibility. The

words, however, flow with equal facility from the pens of all participants in the debate.18

17The Federalist No. 46 (Madison).

18For example, the following from the platform of the Louisiana Citizens Councilss
"We reiterate our beliefs in the rights of the sovereign
states under the Constitution to manage their own internal affairs. We are keenly aware that either communistic influences, vote grabbing politicians, or economic Vressure groups stand behind every effort to invade States rights, and at the slightest whim or fancy attempt to force integration burdensome taxation, ruinous in lation, or corrupt Feeral decisions upon the people of this nation.
And we are aware that resistance to these evil forces has been dormant too long." U. S. Coaission on Civil Riqhts,





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So far as the writer is concerned, any definition of "states' rights" should be qualified by the assumption that "states' rights" are inseparable from states' responsibilities. The doctrine of "states' rights" cannot be used as a barrier to federal intervention when these state responsibilities have been forfeited to the federal government by state neglect and inaction.
This study proceeds on the assumption that "states'
rights" and responsibilities are a legitimate concern of those who view the growth and expansion of the federal government and the "federal presence" with some misgivings; that these rights and responsibilities are a legitimate concern of those who prefer a federal form of government out of the conviction that such a government is more compatible with the American notion of individual freedom and "close-to-thegoverned" government. This study proceeds on the further assumption that to use the concept of "states' rights" as a cloak for racial discrimination is a perversion of that concept.

LeadershiD of the Western World

The present Age of Civil Rights might just as well
be called the Age of War. Two world wars, a "police action," a continuing "cold war" and various "little hot wars" have been the lot of the twentieth century in its first six decades. These events were, and are, responsible for growth of federal power in response to the exigencies of the times. If






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the international situation of the twentieth century has meant increased federal government activity and growth, increased dependence by business upon the federal government for profits, and increased dependence upon the federal government by the individual for emplopaent,19 it also has meant that it is no longer possible for that government to pose as the world champion of democracy upon the international scene and at the same time deny the essentials of democracy to a minority-the Negro--at home.
The post World War I years have been characterized by the rise of formerly dependent peoples, particularly non-white peoples, as colonialism fell away. These people have assumed control of their own destinies and now strive to bridge the gap between themselves and the more advanced countries of East and West. The implications of this independence and participation in world affairs is not lost upon colored minorities the world over, including those in the United States.

The position of the United States on the international scene as leader of the western democracies has meant an unrelenting pressure upon its national government to insure that the reality of the democratic ideal within the country conforms to the "image" sought to be propagated abroad. The names of Little Rock, Oxford, and Birmingham are as familiar and well known abroad, especially among non-white groups, as

19Cook, The Warfare State 21-24, 162-202 (1962).






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the ubiquitous Coca-Cola.20 Racial hate and violence burden

the American national government as it works to demonstrate
the efficacy and superiority of the democratic way to those

nations vacillating between East and West. The fact that

some of these nations seem to be taking the opposite path

from that desired by the United States21 only serves to intensify the pressure upon this country to present a more

compelling domestic practice in support of its own case. The

fact that these nations are often obviously hypocritical22
in their criticisms of the United States should only spur

the United States to be less so.

20"Is this Birmingham or Moscow?" asked the placards borne by African students in Moscow demonstrating over the death of a Ghanaian student, allegedly by foul play. The St. Peterabur Times, Dec. 12, 1963, p. 1-A.
21The virulent critics of the United States Supreme Court might well be envious of the power play recently performed by Kwame Nkrunah of Ghana when he sacked Chief Justice Sir Arku Korsah for handing down the "wrong" decision. ML Ghanaian Times supported this action, reportedly saying that "We cannot have a wig and gown cantata while Rome is burning. The nation cannot be bamboozled by the diabolic insinuations and aspersions of a confused and antagonistic judiciary." "Outrage At Law," Ti Dec. 20, 1963, pp. 21-22.
22Dr. Paul Cook, National Chairman, American Veterans Committee testified before a Senate sub-committee that while representing the American Veterans Committee and the United States Council of the World Veterans Federation in Copenhagen in May, 1963, he was addressed as follows by delegates from the United Arab Republic: "Why do you continue to discriminate against Negroes in the United States? Please let them know that they are welcome in the United Arab Republic where they would face no discrimination on account of their race or their color." Dr. Cook did not ask the United Arab Republic delegates about their attitudes toward the Jewish people. Hearings on S.1117 and S.1219 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judici&D 88th Cong. 1st Sess. 280 (1963).






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The Welfare State

The exigencies of our time--war, constant preparedness for war, and leadership of the Western nations--have all, then, contributed in part to the growth of federal power, a growth in largest part unavoidable. Add to these exigencies the demands placed upon our federal government by the concept of the "service" or the "welfare" state and the result is admittedly a concentration of power without parallel in the history of democratic government.

For good or ill the federal government is being called on to solve more and more of the afflictions and problems which beset the country and its populace. The federal government is called upon to retrain the unemployed, to provide health care for the old and the needy, to provide housing, and to "do something" in a myriad of situations. Failure by the states, for whatever reasons, to provide the expected relief in a particular area not only leaves it up to the federal government to take action in that particular area, but encourages the petitioners to submit their next request to the federal government initially. This poses an unremitting pressure for federal expansion, although it is seldom called for in precisely those terms. It is to the national government that the people look more and more for alleviation of their multitude of ills and for a guarantee of the "good life."









A Lack o Consistencv

In the midst of the growth of the federal government

in sise and functions, the states, in particular the Southern states where most is heard about "states' rights," have done little to enhance the standing of the concept of "states' rights." These states exhibit, rather, an ambivalent attitude toward the concept which gains it few friends outside Dixie.
There is a venerable tradition in the South on the
part of state officials to assume a position of flexibility in the matter of defending the concept of "states' rights." This flexibility allows a conspicuous silence, or at best a sotto voce protest, in those instances where the federal government arrives bearing federal largess. The states in many instances actually demand federal e.penditures in the form of public works, grants-in-aid, and military bases. On the other hand, this flexibility permits a vociferous and adamant defense of "states' rights" when the federal government arrives bearing, not largess, but an insistence on racial equality.
Although control, some amount of control at least, is generally assumed to follow the federal dollar this does not deter state officials from besieging Washington with requests for funds for roads, harbors, canals, ad infinitum. Vigorous Southern exponents of "states' rights" see no incompatibility between seeking this type of federal "intervention" and their


* 14 *a






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much professed attachment to the concept of "states' rights" when race is the issue. Everyone likes his serving of "pork," with any side dishes that the chef can be persuaded to serve along with it. As Senator McNamara put its "In most instances the states' rights doctrine stops at the federal pay window."23

To point out the increasing dependence of the states on the federal government for financial aid, to say that some degree of control will inevitably follow the federal dollar, is not to say that federal funds can never be really beneficial. Federal money may well be the lesser evil in some cases, particularly where states can't, or won't, act. The argument is, simply, that federal expansion is federal expansion whether it comes in the guise of aid to education, broad expanses of new highways, medical care to the aged and indigent, or the prohibition of interstate shipment of fire arms. Federal expansion, then, has been actively sought by the states themselves.
In this context "states' rights" means, for example, the "right" of a state to get its proper share of federal money for highway construction, its rightful share for reclamation work, and so forth. Even the most extreme "states' righter" does not demand for his state the "right" of total financial responsibility in building its own highways, in

244cNamara, "The Challenge of a Federal-State Partnership," 34 N.Y.U.L. Rev. 996, 999 (1959).






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taking care of its own streams and rivers, or in constructing its own hospitals and medical schools.
One might entertain doubts as to the actual bases of the opposition to federal aid to education maintained by various state figures in the South. It is quite possible that this opposition stems primarily �fraom a fear that the federal government will use this aid as a tool to speed up integration of the schools. rear of integration would seem to be a plausible explanation for this opposition to federal aid to education in view of the general state affinity for federal funds. This fear is as plausible an explanation for the opposition as saying that the federal government should leave the inadequacies of the local schools to the solution of the local tax-bedeviled citizens.
In any event it would be interesting to observe the
response, even perhaps in some of the most obdurate sections of the South, if the citizens were given the choice on their ballots of a "little more" integration along with their federal aid or a "little larger increase" in the local school millage and no federal aid. This hypothetical choice would of course be conditioned on the citizens' recognition of the shortcomings of their present schools and the necessity of improving them. In such a case it might take extreme dedication to the principles of "states' rights" to resist passing this financial burden along to the federal government.
If voices raised in defense of "states' rights" are in many instances muted by the rattle of federal coin, they






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are of stentorian character in those instances where race is involved. When the subject of race and racial discrimination arise, then one may see some of the most liberal beneficiaries of federal bounty become ardent defenders of "states' rights." When race, not federal "pork," is the subject of attention, it is then that the tenth amendment trumpets one clear call to the "states' rights" champions and a chorus of "states' rights" voices hastily assembles chanting dour forebodings as the principle actors come to the fore and recite their classical lines.
Assailed by these harmonies the audience may now
pause, if it pauses at all, to reflect upon their form of government. Some of the audience may even imagine they detect discordant notes. On the other hand, the audience may be entranced by the symmetry of the performance and find the elegant utterances of the dramatis personae running through their minds like the words to a popular song, with as little meaning. More damaging for federalism, however, is the possibility that the phrases of the actors and chorus will end up serving as a particolored linguistic cloak under which to conceal racial prejudice and a somewhat inconstant attachment to principles embodied in the Constitution.
At some point in the performance by our "states' rights" actors and chorus the word "responsibility" will roll from their tongues. We will be told, for example, that education is the responsibility of the state and that if









federal aid is to be accepted, it must be given without any conditions or strings attached. We will hear too that regulation of the voting franchise is the constitutional responsibility of the state. Any federal interference with the way a state conducts its elections and grants the franchise is an outrageous rape of the doctrine of "states' rights." It matters not that "states' rights" may have been turned into a creature of easy virtue by the very ones who champion the doctrine now. The chorus swells. A paean to the Founding Fathers is recited. The performance continues.
This performance, for all its classical beauty, should not blind us to the fact that there are different kinds of responsibility. Education may well be the responsibility of the state and local authorities but it is also the responsibility of the state to offer equal opportunity to this education to all of its citizens. It cannot arbitrarily deny access to the best in way of educational facilities which it has to offer simply on the grounds of color. Responsibility is a two-sided coin. Failure or refusal to recognize this fact led to one of the most momentous and bitterly criticized decisions in the history of the United States Supreme Court.24 It is a decision whose ultimate effect upon the federal system of government as known in the United States can even now, nine years later, only be estimated. As the states resist the spreading negation of


(1954).24Br v. Board of Education of Topeka. 347 U.S. 483 (.. . ..4).








"separate but equal" and as they shirk their responsibility, the more the federal government will be called upon for support by those dedicated to the abolishment of "separate but equal." The federal government will respond to the requests by increase of its power to act in the situations confronting it.
These remaeks concerning state responsibility and

education apply equally to the franchise which is the main concern here. The Constitution leaves to the states vast control over the question of who shall vote in a particular state.25 The thesis of this study is simply stated: State use, misuse, abuse or arbitrary use of power to set voting qualifications has led in the past and is presently leading rapidly to increased federal intrusion into the field of the franchise, a field once deemed the almost exclusive preserve of the states; this expansion of federal activity is of immense consequence to American federalism. The controversy over opposed state and national power in the area of suffrage qualifications is one more example in a long history of controversy in American federalism, but few such controversies have touched so fundamentally on problems more demanding of solution. If federalisman be a transient form of government

25Por the power to set qualifications see U. M. Const. art. 1, sec. 2 and US., Conat. amend* XVII. These powers are, of course, restricted by the negative commands of the fifteenth, nineteenth, and twenty-fourth amendments.


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on the way to unity,26 the particular solution of the suffrage problem in the United States will be an important factor in the rate of transition.
All sorts of pressures are affecting and will continue to affect American federalism. War, welfare statism, and Western leadership are examples.
But above all today, there is another source of pressure which affects American federalisman. This source is unquestionably the most dramatic and has very aptly been labeled the "Second American Revolution" or the "Negro Revolution."
The Negro has been seeking equality of treatment since his arrival in the United States. It is in the present decade, however, that the quest for equality, building up pressure over the long, frustrating years, burst upon the American scene with a fervor, a dedication and a singleness of purpose which amazed Americans both North and South, and quite possibly amaed many colored Americans as well as white ones. "Freedom now," the orators cry. "Jim Crow is dead" and "Segregation is finished" proclaim the placards carried by young and old. "Sit-ins," "wade-inda," "pray-ins," et cetera, became common occurrences across the land in the early 1960's, both North and South, as the quest for equality spread and intensified. Street demonstrations, at times unruly and

26A description attributed to Lord Bryce by Edward McWhinney in McWhin ney, omarativ Federalism States Riahts and National Power 4 (1962).






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destructive, but always symptomatic of the disease of secondclass citizenship became standard vehicles for protests and demands. Demands are made for equality of job opportunity, equality of education, equality of access to public accommodations, and so forth. In short, the demand is to delete the accident of color, now and without further delay, from the vicissitudes a man must face in his attempt to realize his own personal American dream, whatever it may be.

Of paramount importance in the realization of this

dream is the acquisition of an asset which may well underlie or guarantee the equality which is so fervently sought for. This asset is the franchise, the right to vote. A voteless man is a voiceless man and a voiceless man is not heard in the chambers of the legislatures. Silence on the political stage is never golden.
The struggle of the Negro to secure the franchise has been a long and frustrating one. With the passage of the Civil Rights Act of 195727 and the Civil Rights Act of 196028
the suffrage front has been one of intense activity29 . a front of gain and a front of continued frustration. This

27Act of Sept. 9, 1957, 71 �=. 634.
28Act of May 6, 1960, 74 jAg. 86.
29The front is a limited one, however. The Civil
Rights Commission reported that discriminatory disfranchisement of Negroes did not exist in forty-two of the states but was confined to about one hundred counties in the states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. 1961 R:eort on Voting 133.
It is the nature of the right denied rather than the size of the area within which that right is denied that is of foremost importance.






- 22

struggle for the franchise in the period of main concern here, 1957-1963, must be considered in the light of the pressures on federalism previously described and the total consequences for federalism. These pressures and the struggle for the franchise are inextricably intertwined.












CHAPTER Z


THE FEDERAL TIDE

The Flow Stae
Since the end of the Civil War the federal government's participation in the Negro's quest for equality, in general, and access to the suffrage, specifically, has flowed, then ebbed, and at present is at full flow in a manner which surpasses the highwater marks of the past.1
A major part of the initial flow was represented, of course, by the three amendments--the thirteenth, the fourteenth, and the fifteenth--which were added to the Constitution in a period of less than five years after the conclusion of the Civil War. It would not be until the year 1964--a period of almost ninety-four years from ratification of the fifteenth amendment-that another amendment aimed at facilitating access to the suffrage, primarily for Negroes, would be added to the Constitution. In February of that year President Johnson added his signature to the ratified

1For an excellent condensed version of the Negro's
quest for full citizenship during the period under discussion, see U. S. Comission on Civil Rights, Eeedom to the Free: 186A Cenurv of L ancination 1963 (1963).


- 23 -









twenty-fourth amendment which eliminated the poll tax in federal elections.2
The other component of this federal involvement with the Negro was the group of civil rights statutes which were passed in the Reconstruction period. There were seven of these statutes in all: (1) the Act of April 9, 1866,3 "An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication";
(2) the Act of May 31, 1870,4 "An Act to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other Purposes"y (3) the Act of February 28, 1871,5 "An Act to amend an Act approved May thirty-one, eighteen hundred and seventy, entitled 'An Act
to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other

2The importance of this latest amendment is debatable. It applies only to voting for federal office. At the time of its passage only five states required payment of a poll tax as a requisite to qualification for voting. Furthermore, in view of the many discriminatory practices available, (See 1961 Report on Votina 48-72), the elimination of the poll tax would not seem to pose serious obstacles to those bent on frustrating the attempts of Negroes to register. The amendment will, of course, eliminate such situations as were revealed in UnitedLae v. BSQ 314 F. 2d 767 (5th Cir. 1963), where Negroes attempting to pay the tax in Tallahatchie County, Mississippi, were told that they would have "to see" the sheriff first.
314 Otat 27.
416 ggg.. 140.

516 ggAl. 433.


- 24 -









Purposes'"; (4) the Act of April 20, 1871,6 "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States and for other Purposes";
(5) the Act of March 1, 1875,7 "An Act to protect all citizens in their civil and legal rights"; (6) the Act of May 21, 1866,8 "An Act to prevent and punish Kidnapping";

(7) the Act of March 2, 1867,9 "An Act to abolish and forever
prohibit the System of Peonage in the Territory of New Mexico and other parts of the United States." A mere perusal of the titles of these statutes gives an indication of the broad areas which these measures were intended to encompass.
The doctrine of "states' rights" had risen to its zenith in the attempted withdrawal of the Southern states from the Union; the doctrine now approached a temporary nadir. The onus of being considered a threat to the freedom of the individual passed from the shoulders of the federal government to the shoulders of state governments and private citizens. This onus has remained in great measure on the states ever since, particularly in regard to racial discrimination.

The federal government after the Civil War was called upon to afford protections which the states could not or

617 $24%@ 13.

718 ggat 355.

814 SAt 50.
914 ga. 546.


- 25 -






- 26 -


would not provide; the federal response was a series of

civil rights acts. Responsibility which was directly denied

or sloughed off by the states involved was assumed by the
federal government. The Negro's attachment to the federal

government which showed such solicitude for his welfare has
continued through the years. One seldom, if ever, meets a

Negro whose political interests center around "states'

rights."10

The extent of this governmental solicitude can perhaps

be better understood by a brief consideration of several of

these broader post Civil War acts. The Act of April 9,

1866, provided, in part, that

all persons born in the United States and not subject
to any foreign power, excluding Indians not taxed,
are hereby declared to be citizens of the United
States; and such citizens, of every race and color, without regard to any previous condition of slavery
or involuntary servitude except as punishment for
a crime whereof the party shall have been duly convicted, shall have the same right, in every state and
Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold convey real and
personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and
shall be subject to like punishments, pains, penalties,
and to none other, any law, statute, ordinance, reglation, or custom, to the contrary notwithstanding. 1

10Probably it is of no great significance, but the word "national" is commonly found in the names of Negro organizations. For examples The National Association for The Advancement of Colored People, The National Council of Negro Women, The National Insurance Organization, The National Association of Real Estate Brokers, Inc., and so
forth.


1114 SU& 27.






- 27 -


Several early federal court cases accepted the constitutionality of the 1866 act.12
The Act of April 20, 1871, sometimes known as the Ku

Klux Klan Act, provided in part that
any person who, under color of any law, statute or
ordinance, regulation, custom, or usage of any State,
shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States,
shall, any such law, statute, ordinance, regulation,
custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceedings to be prosecuted in the several dis ict or circuit courts of
the United States. . ..
The Act of March 1, 1875,14 is of special interest
due to the controversy which has ensued over the inclusion
of a public accommodations section in the civil rights
measure promoted by the late President Kennedy and supported
by President Johnson.15 The 1875 statute's first section

declared s

12United State v. bdes 27 Fed. Cas. 785 (No. 16, 151) (C.C.D. Ky. 1866); Ip Re Turner 24 Fed. Cas. 337 (No. 14, 247) (C.CD. Md. 1867).
1317 �.. 13.

1418 U&. 335.

15Section 202 of the draft submitted to Congress by President Kennedy, June 19, 1963, provided "(a) All persons shall be entitled, without discrimination
or segregation on account of race, color, religion, or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and
accommodations of the following public establishments;
(1) any hotel, motel, or other public place engaged
in furnishing lodging to transient guests, including guests






- 28 -


from other States or traveling in interstate commercet
(2) any motion picture house, theater, sports arena,
stadium, exhibition hall, or other public place of amusement or entertainment which customarily presents motion pictures, performing groups, athletic teams, exhibitions, or other sources of entertainment which move in interstate commerce; and
(3) any retail shop, department store, market, drug
store, gasoline station, or other public place which keeps goods for sale, any restaurant, lunch room, lunch counter, soda fountain, or other public place engaged in selling food for consumption on the premises, and any other establishment where goods, services, facilities, privileges, advantages, or accommodations are held out to the public for sale, use, rent, or hire, if(i) the goods, services, facilities, privileges, advantages, or accommodations offered by any such place or
establishment are provided to a substantial degree to
interstate travelers,
(ii) a substantial portion of any goods held out to
the public by any such place or establishment for sale,
use, rent, or hire has moved in interstate commerce,
(iii) the activities or operations of such place or
establishment otherwise substantially affect interstate
travel or the interstate movement of goods in commerce, or
(iv) such place or establishment is an integral part of
an establishment included under this subsection. For
the purpose of this subsection, the term "integral part"
means physically located on the premises and owned, operated, or controlled, directly or indirectly, by or for
the benefit of, or leased from the persons or business
entitites which own, operate, or control an establishment.
(b) The provisions of this title shall not apply to a bona fide private club or other establishment not open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection
(a)." H. R. Doc. No. 124, 88th Cong., let Sees. 17-18
(1963) [Hereinafter cited as HI. R. Doc. No. 124 (1963)].
This attempt to open public accommodations to Negroes is based on the powerful interstate commerce clause whereas the 1875 act was based on the fourteenth amendment. This is, of course, a major ground of objection to the public accommodations section of the Kennedy bill. Basing public accommodations on the interstate commerce clause will vastly broaden the sphere of federal interest in, and regulation of, business. Businesses once having been classified as being engaged in interstate commerce for public-accommodations purposes, can most likely expect other forms of interstate commerce regulation for other purposes.






- 29 -


All persons within the jurisdiction of the United
States shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances
on land and water, theaters, and other places of
public amusement subject only to the conditions and limitations established by law, and applicable alike
to citizens of every race and color, regardless of
any previous condition of servitude.16

This section, and section 2 which provided penalties for the violation of section 1, were declared unconstitutional in the Civil Riahts Cases eight years later.17
These two statutes just discussed serve to give some idea of the expansion of the federal government's activity in the Negro's quest for equality. It is with the federal government's efforts in the suffrage field, however, with which we are primarily concerned here. As previously pointed out, there were two post Civil War measures which dealt specifically with the right to vote.
The first statute, the Act of May 31, 1870,18 went to great lengths in its attempt to facilitate suffrage access for the Negro. First of all, section 1 of the act declared that all citizens of the United States otherwise qualified by law to vote "at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision" should be entitled to vote at all such elections without

1618 gg=. 335.
17109 S1 3 (1883).

1816 Ltgg. 140.









distinctions of race.19 This was in the main a positive enlargement upon the recently ratified fifteenth amendment which was negative in character.
The act went on to provide in section 2, however, that if there were any act which was required as a prerequisite or qualification for voting in any state, the officials so charged with the administration of these requirements were required to give "all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude."20 Failure to give effect to these strictures made the official civilly liable to the person aggrieved to the extent of 500 dollars for each offense. In addition, such offenses were made misdemeanors and the offending party, if found guilty, would be fined not less than 500 dollars or imprisoned for not less than one month and not more than one year, or both, at the court's discretion.
Section 3 provided that an offer to perform any act made by law a requirement or prerequisite to voting was equivalent to the performance of the act, where the performance was wrongfully denied by the official executing the law.21

19@, 201j.

2l 1W.


- 30 -






- 31 -


A penalty similar to that of section 2 was provided in section 3 for any person who
by force, bribery threats, intimidation, or other
unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with
others to hinder, delay, prevent, or obstruct, any
citizen from doing any act required to be done to
qualify him to vote or from voting at any election
as aforesaid . . . 22
This particular provision of the Act of May 31, 1870, as well as the provisions of section 3 were declared unconstitutional in United States v. eese .23 The Court concluded that sections 3 and 4 were beyond the limit of the fifteenth amendment and therefore unauthorized because they wero not confined in their operation to unlawful discrimination on account of race, color, etcetera. "The power of Congress," said the Court, "to legislate at all upon the subject of voting at state elections rests upon this [fifteenth] amendment" and
it has not been contended, nor can it be, that the
amendment confers authority to impose penalties for
every wrongful refusal to receive the vote of a
qualified elector at State elections. It is only
when the wrongful refusal at such elections is because of race, color, or previous condition of
servitude, that Coqness can interfere, and provide
for its punishment."
The Court in Reese went on to note that under section
3 the elector was required only to state in his affidavit

22ggo at 141.

2392 U. S. (2 Otto) 214 (1875).

24,. at 218.






- 32 -


that he had been wrongfully prevented from qualifying.

Section 3 contained no words limiting its operation to

wrongful acts on account of race, color, and so forth.
Similarly, the Court found that section 4 of the act contained "no words of limitation, or reference even, that can
be construed as manifesting any intentions to confine its
provisions to the terms of the Fifteenth Amendment."25
We are [said the Court], therefore, directly called upon to decide whether a penal statute enacted by Congress within its limited powers,
which is in general language broad enough to cover wrongful acts without as well as within
the constitutional jurisdiction, can be limited
by judicial construction so as to make it operate
only on that which Congress may rightfully prohibit and punish . . . whether we can introduce
words of limitation into a penal statute so as to
make it specific, when as expressed, it is general
only. It would certainly be dangerous if the
legislature could set a net large enough to catch all possible offenders, and leave it to the courts
to step inside and say who could be rightfully detained, and who should be set at large. This
would, to some extent, substitute the judicial for the legislative department of the government . * . .26

The judiciary, the Court concluded, was not in the
business of law-aking. "To limit this statute in the manner asked for," said Chief Justice Waite, "would be to make

a new law, not to enforce an old one. This is no part of

our duty."27

251. at 200.

26Z&. at 221.
27 @.






- 33 -


Another significant section of the Act of May 31,

1870, section 5, met the same fate of being declared unconstitutional at the hands of the Court in JaAs v. oma.28 This portion of the act had provided that

if any person shall prevent, hinder, control, or
intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of suffrage is secured or guaranteed by the fifteenth amendment to the Constitution of the United States,
by means of bribery, threats, or threats of depriving
such person of employment or occupation, or of
ejecting such person from rented house, lands, or
other property, or by threats of refusing to renew
leases or contracts for labor, or by threats of
violence to himself or family, such person so offending shall be deemed guilty of a misdemeanor
and shall, on conviction thereof, be fined not less
than five hundred dollars, or be imprisoned not
less than one month and not more than one year, or
both, at the discretion of the court.29
The indictment in JaMs v. BoMan charged in substance that certain "men of African descent, colored men, negroes, and not white men" had, "by means of bribery," been prevented from voting in a congressional election in Kentucky held in November of 1898.30 The Court noted, however, that the indictment charged neither the State of Kentucky nor any of its officers with any wrong. Rather, the act complained of was performed by an individual on his own initiative and, said Justice Brewer, "a statute which purports to punish purely individual action cannot be sustained as an appropriate

28190 U. 8. 127 (1903).

2916 Sar. 141.
30190 U. S. 127 (1903).









exercise of the power conferred by the Fifteenth Amendment upon Congress."31 Furthermore, the indictment did not charge that the bribery was on account of race, color, or previous condition of servitude. "They were not bribed," the Court pointed out, "because they were colored men, but because they were voters."32
In answer to the contention that Congress had amuple power in regard to election of Representatives to sustain the statute in question, and the indictment, the Court ruled that Congress had not by section 5 acted in the exercise of such power. Section 5 was
not legislation in respect to elections of Federal officers, but is levelled at all elections, state
or Federal, and it does not purport to punish
bribery of any voter, but simply those named in
the Fifteenth Amendment in respect to all elections,
and not in pursuance of the general control by
Congress over particular elections.33
The Court acknowledged that it was "fully sensible of the great wrong which results from bribery at elections" and that it did not "question the power of Congress to punish such offenses when committed in respect to the election of federal officials."34 However, the Court added that

Congress has no right to punish bribery at all elections. The limits of its power are in respect to elections in which the nation is directly

31g. at 129.
32a. at 139.

33 .
34Ug. at 142.






- 35 -


interested or in which some mandate of the National
Constitution is disobeyed, and courts are not at
liberty to take a criminal statute, broad and comprehensive in its terms and inthese terms beyond the power of Congress, and change it to fix (ug.
some particular transaction which Congrqs might
have legislated for if it had seen fit.
The fifth section of the act had also received adverse

treatment earlier at the hands of lower federal courts. In

a case36 arising in Indiana, one Thomas Wilson, a Negro,
charged that he had been intimidated with threats of violence
and prevented from exercising his right of suffrage in township elections in Addison Township, Shelby County, Indiana.
In disposing of the case, the district court saids
It is =2 an offense against the laws of the United States to prevent a citizen, white or
black, from voting at a 8% election by violence or otherwise. A further element is necessary in such a case to subject the offender to federal jurisdiction and punisbment. The violence or other act which is resorted to mugt be
done on account of the voter's race. etc.31

The court then went on to add a

The federal government can exercise only such
powers as have been conferred upon it, and however reprehensible the acts described in the
indictment may be, unless they are done on account of race, etc. and under authority of
legislation which is prohibited by the fifteenth
mendment, it is the exclusive rovince of the
state to punish the offenders.



36United States v. Amaden, 6 Fed. 819 (D. Ind. 1881). 8 .
37g.. at 823. (Emphasis added.)


38a, at 824.









Two years before the Supreme Court decision in Jigm v.

Buman. a circuit court of appeals had also levelled its

sights on section 5.39 The case arose in Kentucky and involved not actual violence but the bribing of Negroes to

stay away from the polls, for which absence they were given

the sum of five dollars apiece. Here the court continued
the theme set forth in the Amden case, saying that
the vice of the fifth section, now section 5507 of the Revised Statutes, is precisely the vice
of the third and fourth sections of the same act.
It is not limited in its operation to Conaresas~al or residential elections, nor to offenses grounded upon race, color, or previous condition of servitude. Reading the section in connection with the other parts of the act from which it was taken, it is too obvious for discussion that Congress intended that it should have operation in
all elections, and should not be limited to
obstructions to the free exercise of the elective
franchise based upon race, etc. Indeed, this is
the very meaning attached to the act by the court below. The indictment in the case at bar did not
aver the bribery to have been because of color,
etc., and, if it had, it would have added an
element not named in the statute . . . . Without
considering the further question as to whether
the power of Congress to legislate in respect to
purely state elections is not also limited to prohibitions of discrimination by the United States,
and by the states and their officers or others, claiming to act under color of laws within the
prohibition of the amendment, we are content to
hold that section 5507 is void, as including within its operation offenses not grounded upon race,
color, or previous condition of servitude, and
therefore in excess of the power of Congress in
respect of state elections its powers in respect
to such elections being dependent upon the fifteenth
amendment alone.40

39acker v. United States, 107 Fed. 114 (6th Cir. 1901).


40X, at 121. (Rmphasis added.)


- 36 -






- 37 -


Section 6 of the 1870 act was also limited in effectiveness by judicial decision. This section provided that

if two or more persons shall band or conspire
together, or go in disguise upon the public highway, or upon the premises of another, with intent
to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen
with intent to prevent or hinder his free exercise
and enjoyment of any right or privilege granted or
secured to him by the Constitution or laws of the United States, or because of his having exercised
the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,--the
fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,--and shall,
moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust create by the Constitution or laws of the
United States. '1

In Vited States v. Cruikshak,42 certain counts of
the indictment were based upon section 6, charging that
the defendants had intended to hinder and prevent some
Negroes from voting. Chief Justice Waite rendered the

decision holding that
inasmuch, therefore, as it does not appear in these
counts that the intnLntof the defendants was to
prevent these parties from exercising their right
to vote on account of their race, etc., it does not
appear that it was their intent to interfere with any right granted or secured by the Constitution
or laws of the United States. We may suspect that
race was the cause of hostility, but it is not so
averred. This is a material description of the
substance of the offense, and cannot be supplied
by implication.43

4116 L. 141.

4292 U. S. (2 Otto) 545 (1875).

431. at 556. (Emphasis added.)






- 38 -


Later, after the turn of the century, section 6 was still meeting with judicial disapproval. "This section," said a federal circuit court in 1903,
has for its object the punishment of a llpersons
who conspire to prevent the full enjoyment of
any right or privilege secured by the Constitution or laws of Congress, without regard to whether the
persons so conspiring are -ate individuals or
ogjals exercising the power of the United States
or of a state. Neither does it draw any distinction
between a conspiracy directed against the exercises
of the right of suffrage based upon race or color,
and a conspiracy not so grounded . . . . That it is
not within the province of the courts to so limit
an act by judicial construction as to make it
operate only on that which Congress may rightfully prohibit and punish is now a well-ettled principle
of constitutional interpretation.4

The court went on to say that if freedom from discrimination at a state election was a "right or privilege" secured by the Constitution or laws of the United States, it was one which originated solely in the fifteenth amendment. This "right" could be enforced only by congressional legislation aimed at state action in some form or other which deprived otherwise qualified voters of the franchise because of race, color, or previous condition of servitude. "This," the court said, "was the limit of the power of Congress
under the article."45
The court found that section 6, at that date incorporated into the Revised Statutes of 1875 as section 5508,

4 M v. United States., 121 Fed. 250 (6th Cir.
1903). (Emphasis added.)
451. at 261.






- 39 -


was not so limited and therefore not "appropriate legislation for the enforcement of the fifteenth amendment.*46 It did not, however, declare the section in question unconstitutional because "the warrant for the section is found in other provisions of the Constitution."47 These other provisions were not specified.
The foregoing sections do not exhaust the provisions of the federal government's Act of May 31, 1870, but are the highlights of that act and outline the government's first statutory entry into the suffrage field in the Reconstruction period. Together with the broad civil rights measures previously mentioned they furnish evidence of the federal government's commitment in this period--a commitment not equaled again until the decades of the 1950's and 1960's.
As in our own time, the commitment of the federal
government was somewhat uneven. In the immediate period after the Civil War it was Congress which surged forward in the civil rights field. The federal judiciary, in what will be seen as a direct contrast to its activities today, severely limited the effect of the new measures by its narrow interpretation of them. The cases cited above in connection with the Act of May 31, 1870, constitute a demonstration of this judicial behavior toward the civil rights measures.



47z .









Eb. Tide
The congressional attachment to the aspirations of

the Negro was destined to slow after the first flush of the Reconstruction period was over and the country moved into a period of rapid industrial growth and unrestrained capitalism. This slower pace ra was an accurate reflection of the mood of the country at large. There were more important things to do than to worry about the Negro and his problems. He could be left to future generations--and was.
No more appropriate example of the congressional

temper could peha be given than the repeal of much of the civil rights legislation by congressional act. A particular victim of the congressional action at this time was the Act of February 28, 1871,48 the second of the two post Civil War civil rights statutes which dealt specifically with voting. This act had gone to great lengths to prevent fraud in elections for the Congress of the United States. The principle feature of the act was a provision for the appointment of election supervisors whenever any two inhabitants49 in any town or city of upwards of twenty thousand inhabitants made a written request to a judge of the circuit court of the United States making known their desire to have the registration or election, or both, scrutinized and guarded.

4816 $ta 433.

49This requirement was amended in 1872 to read "ten citizens . . . of good standing." Act of June 10, 1872, 17 Stat 348.


- 40 -






-41 -


The circuit judge was authorized to appoint two residents of

the city involved as supervisors, residents who were "of

differing political parties, and able to read and write the

English language."50 The United States marshall in the district was authorized on application of two citizens of the

city or town, to appoint special deputy marshalls to assist

the supervisors. The duties of these election supervisors

were quite extensive.51

5016 Ia. 433.

518ection 4 provided, in part, that the supervisors were
"authorized and required, to attend at all times and
places fixed for the registration of voters, who, being registered, would be entitled to vote for a
representative or delegate in Congress, and to challenge any person offering to register: to attend at
all times and places when the names of registered
voters may be marked for challenge, and to cause such
names registered as they shall deem proper to be so
marked . . "
Section 5 set forth that supervisors, in addition, were
"authorized and required, to attend at all times and
places for holding elections of representatives or
delegates in Congress, and for counting the votes
cast at said elections to challenge any vote offered
by any person whose legal qualifications the supervisors, or either of them shall doubt to be and
remain where the ballot-boxes are kept at all times
after the polls are open until each and every vote cast at said time and place shall be counted, the
canvass of all votes polled be wholly completed, and
the proper and requisites certificates or returns made, whether said certificates or returns be required under any law of the United States, or any State, territorial, or municipal law, and to personally inspect and scrutinize, from time to time,
and at all times, on the day of election, the manner in which the poll-books, registry lists, and tallies or checkbooks, whether the same required by any law of the United States, or any State, territorial, or
municipal law are kept: and to the end that each
candidate for office of representative or delegate






- 42 -


Section 10 of the act provided penalties in that anyone interfering with, or hindering the election supervisors in the performance of their duties, would be guilty of a misdemeanor and could be instantly arrested without process. Conviction could be punished by up to two years imprisonment or a fine of not more than 3,000 dollars, or both, plus the costs of the prosecution. Section 16 of the act provided for the removal to a United States circuit court of any suit, civil or criminal, commenced in a state court, for any act done under color of the statute.

There are only two reported cases involving the system of election supervisors created by the Act of February 28, 1871. In the first, In re Supervisors of Election,52 the supervisor plan was held to be constitutional. In Ex Pate Siebold,53 the second case, the defendants again challenged


in Congress shall obtain the benefit of every vote for him cast, the said supervisors of election are, and each of them is, hereby required . . . to personally scrutinize, count and canvass each and every
ballot in their or his election district or voting precinct cast, whatever may be the endorsement on
said ballot, or in whatever box it may have been
placed or found . . . ."
Section 6 authorized the supervisors to
"take, occupy, and remain in such position or positions,
from time to time, whether before or behind the ballot boxes, as will, in their judgment, best enable them or
him to see each person offering himself for registration or offering to vote, and as will best conduce
to their or his scrutinizing the manner in which the
registration or voting is being conducted . . "
16 Stgg 434-5.
5223 Fed. Cas. 430 (No. 13,628) (C.C.S.D. Ohio 1878).

53100 U. S. 371 (1880).






- 43 -


the validity of the act. These defendants were state-appointed
election judges in Baltimore who had been found stuffing the

ballot boxes in an election in which a United States Congressman was being elected as well as local and state officers.

Their convictions were upheld by the Supreme Court. The careful language of the statute in centering the system of supervisors on elections in which members of Congress were being

elected preserved the statute from the fate at the hands of

the courts which befell, for example, the loosely worded

sections of the Act of May 31, 1870.54
This language, of course, offered no barrier to Congress. Towards the close of the nineteenth century the
civil rights program of the Reconstruction period was abandoned, and the prevalent mood of Congress was set forth in
a House report which stated:
Let every trace of the reconstruction measures
be wiped from the statute books; let the states
of this great Union understand that the elections
are in their own hands, and if there is to be
fraud, coercion, or force used they will be the
first to feel it. Responding to a universal sentiment throughout the country for greater purity
in elections many of our States have enacted laws to protect the voter and to purify the ballot box.
These under the guidance of State officers have worked efficiently, satisfactorily, and beneficently, and if these Federal statutes are repealed

5416 $a 140. In United States v. ggg 92 U. S. (2 Otto) 214, at 220, the Court said, for example:
"If Congress had the power to provide generally for the punishment of those who unlawfully interfere to
prevent the exercise of the elective franchise without regard to such [racial] discrimination, the
language of these sections would be broad enough for
that purpose."






-44-


that sentiment will receive an impetus which, if
the cause still exists, will carry5such enactments in every state of the Union.5
In fact, as early as 1877, a Democratic Congress had passed a measure which repealed much of the civil rights legislation but the act was vetoed by President Hayes. Throughout this period the executive branch was content to let Congress lead the way in regard to civil rights and the suffrage. Legislative and executive statutory concern with the question of civil rights would not again be manifested in statute until the Civil Rights Act of 195756--eighty-two years after the Act of March 1, 1875,57 the last of the post Civil War civil rights statutes.
Congress did not wipe every trace of the Reconstruction measures from the statute books but it did make considerable headway in that direction. In February of 1894, President Cleveland signed into law a measure entitled "An Act to repeal all statutes relating to supervisors of elections and special deputy marshalls, and for other purposes."58 This act repealed the rather elaborate supervisor system set up in the Act of February 28, 1871,and in addition, repealed sections 2, 3, and 4 of the Act of May 31, 1870.59

550. Rev. No. 18. 53d Cong., let Sees. 7 (1894).
56Act of September 9, 1957, 71 �Ig. 634.
5718 �a. 335.

58Act of February 8, 1894, 28 A . 36.
59See pp. 30-31 amE






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By the turn of the century, then, the federal government's concern with Negro suffrage was well along into its ebb period. Court decisions restricted the effectiveness of the program arnd the enthusiasm of Congress waned rapidly as time passed.

Eatmann. Ebh and...X~mr
The years intervening between the repeal measure of 1894 and the Civil Rights Act of 1957 can not, however, be considered a period of complete stagnation in the field of civil rights in general and the suffrage area in particular. Some very notable advances were made on the suffrage front during this sixty-three year time span but, significantly, these advances were not the result of congressional activity. It is in the federal courts that actions were brought by private persons during this period against many types of alleged state discriminatory practices based in major part on race i and it is in the federal courts that many such state actions discriminating in the practice of the suffrage on the basis of color were invalidated.
The earlier federal cases of the period from 1866 to around the turn of the century, discussed in the previous section of this chapter, had without exception been brought under federal Reconstruction statutes. They did not involve an attack on ag statutes allegedly discriminatory on a racial basis. And it has been shown that the federal courts denied the power of Congress to legislate on the basis of






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the fifteenth amendment where racial discrimination was not
a factor. These earlier cases did not even involve, in most instances, alleged discriminatory action by a person or persons clearly serving a tU function.
But at the turn of the century, many Southern states
began actively seeking ways to disfranchise the Negro. State statutes and state constitutional provisions having the effect of keeping the Negro from the polls were enacted. It was in this new context that the federal courts now found themselves thrust willy-nilly into a position of leadership where private litigants invoked the federal constitutional provisions of the fourteenth and fifteenth amendments (for the most part) against alleged state suffrage discrimination.

In 1910 the National Association for the Advancement
of Colored People was organized as a permanent body. Shortly thereafter, in 1915, the organization appeared for the first time before the Supreme Court in the case of 2J v. United $t2860 declaring, in the words of Counsel Moorfield Storey, that "all discriminations respecting the right to vote on account of color are unconstitutional."61
At issue in the gaIg case was the Oklahoma grandfather clause which exempted persons who had been entitled to vote on January 1, 1866,or their lineal descendants, or their lineal descendants who lived abroad on that date, fra

60238 U. S. 347 (1915).

611, at 353.






- 47 -


being disqualified for registration because of their inability to read and write certain sections of the Oklahoma state constitution. The case arose from the federal indictment and conviction of certain Oklahoma election officers under section 5508 of the Revised Statutes of 1875 which at that time was section 19 of the Criminal Code of 199 and which was originally derived from section 6 of the Act of Kay 31, 1870.62
The case clearly involved gtdg action, though f ral statutes were also at issue. The suit was brought by Negro citizens who alleged that the provisions in question of the Oklahoma constitution were void because they conflicted with the prohibitions of the fifteenth amendment and violated the Negro citizen's rights thereunder. The Supreme Court struck down Oklahoma's grandfather clause saying that it was "unable to discover how, unless the prohibitions of the Fifteenth Amendment were considered, the slightest reason was afforded

62"If two or more persons shall band or conspire together or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,--the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,--and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States." 16 gJA. 141.






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for basing the classification [for exemption from literacy requirements] upon a period of time prior to the Fifteenth Amendment. 63
On the same day, June 21, the Court struck down a similar scheme in the State of Maryland.64 The Maryland scheme was based on the date, January 1, 1868. Here three parties had brought separate suits to recover damages against certain registration officials who had refused to register them. The grounds for the suit were that the registration officials had, by their refusal to register the three parties, deprived them of a right to vote secured by the fifteenth amendment and that there was liability for damages under section 1979 of the Revised Statutes of 1875.65 In sending the Maryland scheme down the same path as the Oklahoma one, the Court said that if the defendant's argument were accepted,

63gaM v. United States, 238 U. 8. 347, 365 (1915).

64MerL v. derson. 238 U. S. 368 (1915).
65This section was derived from section 1 of the Act of April 20, 1871, 17 ga. 13, which provided that "any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ."






-49 -


it would follow that although the Fifteenth Amendment by its self operation without any action of the State had changed the clause in the constitution of the state of Maryland conferring suffrage
upon "every white male citizen" so as to cause it
to read "every male citizen," nevertheless the amendment was so supine, so devoid of effect as
to leave it open for the legislature to write back
by statute the discriminating provision by a mere
changed form of expression into the laws of the State and for state officers to make th result
of such action successfully operative.U
With these two cases, then, the advocates of equal suffrage for the Negro scored a victory and removed a road block to their aspirations.
As was too often the case in the suffrage struggle, however, the removal of one obstruction does not clear the way but merely affords a better view of the next obstruction. The state of Oklahoma, in a demonstration of state resourcefulness when confronted by federal negative, did not forego its efforts at discrimination after the ginAg case disposed of its grandfather clause. The Oklahoma legislature passed another statute which provided that those who were qualified to vote in the 1914 general election--which had been based on the grandfather clause--automatically remained qualified voters. The new registration requirements would only affect others. These "others" were given from April 30, 1914 to Ma i11.i 1916, to apply for registration. An extension was given only to those who were out of the country at the time or who were prevented by sickness or unavoidable misfortune from applying within the original period.

6%qgv. Ander 238 U. 8. 368, 382 (1915).






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The validity of this statutory provision came before the Supreme Court in Lan v. Wilson.67 In this case three county election officials were being sued for failure to register the colored petitioner on October 17, 1934. The action was one for 5,000 dollars in damages brought under the what was then section 43, Title 8 of the United States ns,68 claiming discriminatory treatment as a result of the Oklahoma legislation in violation of the fifteenth amendment. Here, again, sa action was clearly the issue. The Court invalidated this latest Oklahoma disfranchising scheme with Justice Frankfurter proclaiming for the Court that
the [fifteenth] Amendment nullifies sophisticated as well as simple-mainded modes of discrimination.
It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract riht to
vote may remain unrestricted as to race.o

The invalidation of the grandfather clause device was accomplished with relative ease compared to the campaign now waged by the National Association for the Advancement of Colored People and other Negro organizations against the white primary. This battle would take over two decades, and the main theatre would be the state of Texas.
Strangely enough the seeds of the struggle over the
white primary were sown in the Northern state of Michigan in

67307 U. S. 268 (1939).

68lormerly section 1979 of the Revised Statutes of
1 See p. 48 & note 65 sura
69-Iv. Wilgson. 307 U. S. 268, 275 (1939).






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a series of events where race was not an issue. In 1921, the United States Supreme Court held, in newberrt v. United states 70 that primaries were "in no real sense part of the manner of holding the election."71
Truman Newberry, in his campaign for nomination and election as United States Senator from Michigan, had been convicted of violating the Federal Corrupt Practices Act.72 This act restricted campaign expenditures in securing nomination and in the actual election. The Supreme Court, however, set aside Newberry's conviction by separating the primary and general elections. "The Seventeenth Amendment," it said,
which directs that Senators be chosen by the people, neither announced nor requires a new meaning of election and the word now has the same general significance as it did when the
Constitution came into existence--f.ial choice
of an officer by the duly qualified electors.
Primaries were then unknown. Moreover, 3y are in no sense elections for an office, but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate choice by all qualified
electors. General provisions touching elections in constitutions or statutes are not necessarily
applicable to primaries--the two things are
radically different.73

70256 U. S. 232 (1921).

711& at 257.

72Act of June 25, 1910, 36 gg. 822.

73Newrryv. United States, 256 U. 8. 232, 249 (1915). (Emphasis added.)






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Continuing in the same vein the Court said that the election did not depend upon the scheme by which candidates were put forward primary, convention, petition, or whatever, did not directly affect the manner of holding the elections. "Birth," said the Court, "must precede but it is no part of either funeral or apotheosis."74

In its conclusion the Court paid homage to "states' rights"a

We cannot conclude that authority to control party primaries or conventions for designated candidates
was bestowed upon Congress by the grant of power to regulate the manner of holding elections. . . . Nor
is this control necessary in order to effectuate the power expressly granted. On the other 'and,
its exercise would interfere with purely domestic affairs of the State and infringe upon liberties
reserved to the people.
It should not be forgotten that, exercising
inherent police power, the state may suppress
whatever evils may be incident to primary or convention.75

The Southern states interpreted the Newerr decision to mean that the primaries were theirs to do with as they pleased. Their pleasure was the exclusion of the Negro. Texas, in May of 1923, enacted a state statute which provided that "in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas."76 When the Court found this to be a denial of

741. at 257.
75U. at 258.

76 i a v. Herndon, 273 U. S. 536, 540 (1927).






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fourteenth amendment equal protection,77 Texas promptly tried

another method of continuing its white primary which was

promptly challenged in giggn v. Condon.78 At issue here was

the Texas statutory measure enacted after the decision in

ian v. lerd. This new measure stated that

every political party in this State through its
State Executive Committee shall have the power
to prescribe the qualifications of its own members
and shall in its own way determine who shall be
qualified to vote or otherw e participate in
such political party. . . .
The Court found this device also violative of the equal protection guaranteed by the fourteenth amendment.80 The plaintiff in both these cases relied upon section 1979 of the

Revised Statutes of 1875 for damages.

77"We find it unnecessary to consider the Fifteenth Amendment because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth . . . . States may do a good deal of classifying that is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in the case." Ul.
78286 U. 8. 73 (1932).

79Quoted 5. at 82.
80"The test is not whether the members of the Executive Committee are the representatives of the State in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the constitution set limits to
their action.
Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black. The Fourteenth Amendment, adopted as it was with the special solicitude for the equal protection of members of the Negro race, lays a duty upon the Court to level by its judgment these barriers of color." L. at 89.









The attempts to retain the white primary did not cease
with this last decision and its advocates enjoyed a temporary success when the Court held in grove v. Townsend.81 three years later, that the action of the Texas Democratic Party convention in adopting, on its own authority and without state legislation on the subject, a resolution restricting membership in the party to white citizens, was valid under the fourteenth amendment because it was not state action.
The decision seemed to support the argument that political parties were private concerns not subject to the strictures of the constitution against state action and that the primaries held by these parties were not really part of the election process.

The concept was in short time due for significant
revision, however. Six years after Xo the Supreme Court rendered a decision in the case of United StAts v. Clasic.82 This case, interestingly enough, was not a racial discrimination case, nor did it directly involve state action. Some election officials in Louisiana were prosecuted under sections 51 and 52, now sections 241 and 242, Title 18 of the td Sates Code, for tampering with ballots in a primary election where candidates for Congress were chosen. In reaching its decision the Court said:

81295 U. S. 45 (1935).
82313 U. S. 299 (1941).






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The words of section 2 and section 4 of Article I, read in the sense which is plainly permissible and
in the light of the constitutional purpose, require us to hold that a primary election which involves a
necessary step in the choice of candidates for
election as representatives in Congress, and whih
in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision and is subject to Congressional regulation as to the manner of holding
it.83

Now, if primaries could be considered an integral
part of the election process it would follow that the idea
that primaries were the private domain of private organizations was obviously due for some rather drastic overhauling.

Three years later, in a new case from Texas, Sg v.

Allnwat,84 the Court overruled Groves saying:
Classic bears upon Grovey v. Townsend not because
exclusion of Negroes from primaries is any more or
less state action by reason of the unitary character of the electoral process but because the recognition
of the place of the primary in the electoral scheme makes clear that state delegation to a party of the
power to fix the qualifications of primary elections is delegation of a state function that wy make the
party's action the action of the state.

After considering the ways in which the Texas primaries were

regulated by state statutes, the Court concluded that the

political party took its character as a state agency from

the duties imposed upon it by state statutes. Even though

the privilege of membership in the party might be of no concern to the state, when that privilege of membership was also

8311. at 320. (Emphasis added.)
84321 U. S. 648 (1944).
85a. at 660.







- 56 -


the essential qualification for participating in the primary to select nominees for a general election, then the state

made the action of the party the action of the state.86

South Carolina thought that it could solve the obstacles presented by the Smith v. Allwright decision by erasing all statutory references to party primaries thus transforming the Democratic Party of that state into a strictly private

and voluntary association. These ambitions, however, were blighted at the lower court level87 and the Supreme Court refused to grant certiorari.88

It had been approximately twenty years from the

erndon case down to the invalidation of South Carolina's

abortive white primary. During this long campaign the burden of the struggle had been carried on by private initiative. The remnants of the old civil rights acts which had survived into the Revised Statutes of 1875 and into the Uig States Code did not provide for civil suits initiated by the federal government in suffrage cases nor did they provide for injunctive relief from discriminatory practices.89 Convictions of local offenders by local juries under the

criminal provisions90 of these acts which remained on the

86d. at 663.
87Elmore v. Ri 72 F. Supp. 516 (E.D. So. Car. 1947); Ri v. Elmore, 165 F. 2d 387 (4th Cir. 1947).

8%& v. Elmore, 333 U. S. 875 (1948).
89See Appendix A.


90bid






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books was somewhat difficult.91 Nevertheless, by the late 1940's considerable progress had been made, albeit at agonizing pace to those involved in the struggle. The grandfather clauses were gone and so apparently was the white primary.

Like Banquo's ghost, however, the white primary did not rest in peace. It was found operating in full vigor in Texas through an arrangement in which a political party known as the Jaybird Party conducted its own primary. The winners of this pre-primary then entered the regular Democratic primary where they were uniformly successful. The Jaybirds excluded Negroes from their primary. The Supreme Court found this pre-primary arrangement to be an integral part of the election process and therefore subject to the limitations of the fifteenth amendment.92
More recently, in November 1959, the federal government filed a complaint under section 1971(a), Title 42, of
the United States Code against the Fayette County (Tennessee) Democratic Executive Committee whom it found conducting a white primary in that county. In the face of increased Negro registration for the primary election in 1959, notice was

given by party officials that participation in the primaries

91See, Carr, Federal Protection of Civil Riahts: Quest for A Sword 138-146 (1947).
92g v v. Addg, 345 U. S. 461 (1953).






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was to be confined to white Democrats.93 The election officials adhered to these instructions and suit was filed by the Justice Department to enjoin the defendants from excluding Negroes from participation in any selection process conducted by the defendants or their successors. A consent judgment to this effect was entered on April 25, 1960.94 As of the end of 1963 no other white primary operations had been brought to light by way of court action.
The white primary was too blatant a violation of the guarantees of the fourteenth and fifteenth amendments to stand. As the states involved expanded their efforts to retain the white primary by various subterfuges designed to resemble private action, the federal courts expanded the concept of what constituted state action and, consequently, of what came under the prohibitions of the fourteenth and fifteenth amendments.

A similar thread can be seen in other aspects of the suffrage struggle since the demise of the white primary. As the various states bent on discrimination have tried to avoid the responsibility that is theirs in regard to providing equal access to the ballot, the federal courts, aided to be sure by civil rights legislation after 1957, have cast an

9Marshall, "Federal Protection of Negro Voting Rights," 27 Law & ContemD. Prob. 455, 464 (1962).

94United States v. Fayette County Democratic executive Committee, Civ. No. 3835, W.D. Tenn., April 25, 1960, 5 Ra Rel. L. Rep. 421 (1960).






- 59 -


ever-widening net to encompass every gyration and contortion that the states are able to perform. Consequently, the "federal presence" increases and the offending states lift anguished voices in defense of "states' rights" and unleash scathing attacks against what they term "federal interference." Lashed on by their own rhetoric the states then indulge in more contrivances designed to thwart the "federal interference" and the cycle begins again. This phenomenon will become more apparent as this study proceeds.

In the period after the Civil War we have seen how

the federal government first entered the civil rights field

with vigor at high tide. Then, as vigor and interest ebbed, withdrew from the field leaving as evidence of its presence the remnants of its civil rights measures and several constitutional amendments of unknown range of applicability. These bits and pieces of legal phraseology were to sustain the Negro in his struggle for equality until the first civil rights measure of the twentieth century was passed in 1957.95 As has been pointed out, some notable gains were made due to the perseverance of private individuals and the increasingly favorable attitude of the Supreme Court towards civil rights, particularly in regard to the suffrage, as the nation entered the twentieth century.

95Act of Sept. 9, 1957, 71 L=. 634.






- 60

In the field of suffrage, however, merely the top of
the iceberg of discriminatory practices had been chipped away in the elimination of the grandfather clause and the white primary. More comprehensive and effective devices than those available up to 1957 would have to be made available if the advance towards equality were to continue.












CHAPTER III


THE CIVIL RIGHTS TEMPO INCREASES

The Fedeal Judiciary in the Forefront

In the long period from the passage of the last civil rights act in 18751 down to the passage of the first civil rights act of the twentieth century in 19572 it was in the federal courts that the Negro's search for the ballot made what progress it did.
The various grandfather clauses, stamped invalid by

the Supreme Court, were such obvious and clumsy contrivances to circumvent the fifteenth amendment that the Court would have had to indulge in some extraordinary judicial gymnastics had it been inclined to uphold their constitutionality. Nevertheless, these devices were an obstacle which had to be eliminated. Their elimination represented a step forward.

The invalidation of the white primary represented a step of greater magnitude. The essence of the struggle to do away with the white primary lay in the ever-widening judicial concept of what constituted state action. With the Court's decision in the Classic case3 serving as the keystone

lAct of March 1, 1875, 18 at. 335.

2Act of Sept. 9, 1957, 71 g o 634.

3U-ited States v. Classic 313 U. S. 299 (1941).


- 61 -






- 62 -


after 1941, all subsequent efforts by states anxious to retain the white primary were struck down with unvarying regularity, including South Carolina's mute statute books.4 State responsibilities in the matter of primary elections simply could not be shunted off to party executive committees,5 party conventions,6 or pre-primary primaries.7 Such a fundamental part of the democratic process as primary elections could not be given over to the caprices of "private" groups. The gift itself was deemed action on the part of the state.

Today's militants on the civil rights front are quick to point out that eradication of the grandfather clause and the white primary, particularly the latter, is not much to show measured against the time involved. Furthermore, the militants add, these advances were qualified by the Supreme Court holding valid in Williame v. MississioI8 a Mississippi law requiring voters to be able to read, understand, or interpret any section of the Constitution. This law and others like it would do yeoman service in furnishing those bent on restricting Negro suffrage with a tool much more sophisticated than the white primary with which to accomplish

4R.a v. Elmore 176 F. 2d 387 (4th Cir. 1947).

5gagg v. Condon 286 U. S. 73 (1932).
6sMgg v. Al iht 321 U. S. 749 (1944).

7Tr v. Adams, 345 U. S. 461 (1953).

8170 U. S. 213 (1898).






- 63 -


their objective. In the Will Ws case too, the legality of the poll tax was upheld, a ruling later reaffirmed in 1937 when the Court held again in Breedlove v. Settles that the tax did not violate the fourteenth amendment.9
The poll tax has long been to many persons a sort of symbol of racial discrimination. By 1937, however, three Southern states, acting on their own initiative, had repealed their poll tax requirements--North Carolina in 1920, Louisiana in 1934, and Florida in 1937. Georgia followed

suit in 1945 and South Carolina in 1950. Tennessee, had, for all practical purposes, eliminated its poll tax requirements by 1951. The states still retaining the tax in 1952-Alabama, Arkansas, Mississippi, Texas, and Virginia--still

were using the instrument at the time of ratification of the twenty-fourth amendment in 1964.

Although the poll tax did operate in its time to disfranchise some potential voters, whites as well as Negroes, it is problematical how much, if any, increase in voter

9302 U. S. 277 (1937). Breedlove was not a case involving race, however. A white male, age twenty-eight, attacked Georgia's poll tax statutes which exempted all persons under twenty-one and over sixty, and all females who did not register to vote, from payment of the tax. The Court felt there was no denial of equal protection since the burden upon the appellant was exactly the same as that put on other men in his class. Paying homage to the institution of motherhood, the Court gallantly held that
"the tax being upon persons, women may be exempted
on the basis of special considerations to which they are naturally entitled. In view of burdens
necessarily borne by them for the preservation of
the race, the State reasonably may exempt them
from poll taxes." a. at 282.






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participation subsequent to the 1964 constitutional amendment will be attributable to the elimination of the poll tax. One might even speculate that this latest amendment to the Constitution was successfully ratified precisely because there was, in reality, no pressing need for it. In three of the five states which retained the tax--Arikansas, Texas, and Virginia--the federal government had, as of the end of 1963 filed no voter discrimination suits under the 1957 and 1960 civil rights acts. In one state which early discarded the tax--Louisiana--there have been many suits in the federal courts. If the number of governmental suits may be taken as an indicator of the seriousness of the discrimination problem, then the states of Alabama and Mississippi have the somewhat singular distinction of having a constitutional amendment ratified practically for their "benefit" alone. Even in these states, however, where the federal government is almost continuously litigating voter discrimination suits, manipulation of the poll tax itself is seldom at the heart of the suit.

As a deterrent to Negro registration, a much better

case could be made for literacy tests than the poll tax. In combination with "understanding" and "interpretation" requirements, the literacy test placed a potent weapon at the discretion of the registrar. As has been mentioned, Mississippi's literacy test, with the "understanding" or "interpretation" features was upheld in the early Willia v.






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Missiasin2i.10 Here the Court said that the statutes and Constitution of Mississippi did not "on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them."11
Even this technique for denying the franchise had
been weakened before the passage of the civil rights measure in 1957, however. Alabama had, in a general election of November 7, 1946, adopted the so-called Boswell Amendment which added as an additional qualification for registration that the applicant be able to "understand and explain" any article of the Constitution. Negro citizens of Mobile County brought suit alleging the unconstitutionality of this requirement in March of 1948, and in January of 1949 a threejudge federal district court declared the Boswell Amendment unconstitutional as violative of the fifteenth amendment.12 In reaching its decision the court found that "the ambiguity inherent in the phrase 'understand and explain' cannot be resolved, but on the contrary, was purposeful and used with a view of meeting the decision of the United States in SdIth v. Allwright . . . ."13 The purpose of the amendment

10170 U. S. 213 (1898).
11X. at 225.
12aUi Lv. Schnel, 81 F. Supp. 872 (S.D.Ala. 1949), affd me. 336 U. S. 933 (1949).
13ad. at 876.






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was scarcely concealed.14 The court concluded that even

though there was no mention of race or color in the Boswell

Amendment this particular feature could not save it since,

in Mr. Justice Frankfurter's words froman je v. Wilson.15

the fifteenth amendment "nullifies sophisticated as well as

simple-minded modes of discrimination."16

Davis v. Schell is a significant case. The court

was willing to go beyond the letter of the law and take

cognizance, as it was not in the early case of Willias v.

Mississii, of the actual operation of a law not on its face

discriminatory. The Boswell Amendment was a much more

141n a letter dated August 27, 1946, the chairman of the State Democratic Executive Committee wrote to the other members of the Committee saying, in part, as follows:
"I might add that while a few members of our State
Committee have expressed the thought that the funds of the State Committee should not be expended in a campaign either for or against the adoption of the proposed Boswell Amendment, yet the great majority
of the members of our Committee have taken the
position that since the emblem of our party is a crowing rooster with the words 'White Supremacy' above the rooster, and the words 'For the Right'
below the rooster, that it is entirely proper that
the State Democratic Executive Committee should lead the fight to maintain the traditions of our
Party in this state by adopting the proposed amendment to our Constitution and endeavoring, as far as
it can legally be done, to make the Democratic
Party in Alabama the 'white man's party'." Quoted
A. at 879.
A campaign newspaper, the Alabama Democrat, in support of the adoption of the amendment ran the following headline and footlines "Vote White-Vote Right--Vote for Amendment No. 4." Quoted i&. at 870.
15307 U. S. 268.

1949). 16Davis v. Scnell, 81 F. Supp. 872, 880 (S.D.Ala. 1949).






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sophisticated device than the grandfather clause and the white primary; the State of Alabama in employing this device only served to lengthen the shadow of legal protection cast by the fifteenth amendment. This case presaged a more careful scrutiny of the states' right to set the qualifications of electors. This scrutiny, in turn, would raise the rallying cry of "federal intervention" and violation of "states' rights" from the offended states.

The story of the Boswell Amendment is once again illustrative of what might be called the civil rights theme, that is, the disinclination of a state to assume its responsibilities to its citizens and the consequent assumption of this responsibility by the federal government. As the tempo of the civil rights movement increased in the 1940's and 1950's, the theme is repeated again and again and nowhere with more striking effect than in the area of suffrage.

A Chancina Climate

Aside from federal court decisions, there were other signs that civil rights were becoming more important on the American scene. In 1939 Attorney General Frank Murphy created a Civil Rights Section in the Criminal Division of the Department of Justice. This new Civil Rights Section was handicapped by lack of sufficient personnel and the absence of adequate statutory bases from which to operate. Its establishment was of considerable importance, nevertheless,






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for there would now be a government organization specifically concerned with civil rights.17
Five years later a significant step was taken in the private sector in connection with civil rights and suffrage in particular. In 1944 the Southern Regional Council was chartered in Georgia "for the improvement of economic, civic, and racial conditions in the South" and "to attain through research and action programs the ideals and practices of equal opportunity for all peoples in the region."18 The Council made the study of Negro suffrage one of its primary concerns and its studies of the suffrage problem in the South foreshadowed the later findings of the United States Commission on Civil Rights.19
The years of these advances were also war years, years during which a sense of nagging moral discomfort arose within the American nation. This discomfort came from the discomforting paradox of waging bloody battle against an enemy with a creed grounded in theories of racial superiority--an enemy proceeding on a program of systematically eliminating

17Tuskegee Institute's compilation of lynching
statistics for the years 1930-1939 indicate that there was ample reason for concern with civil rights. In this period 119 Negroes had been lynched along with ten whites. 1961 Report on Justice 268.
18The Southern Regional Council, The Southern Revional un a Its Oriqin and Purpose 5 (1944).
19Two examples of the Council's fine work, both by
Margaret Price are: The Nearo Voter in the South (1957) and The Negro and The Ballot in the South (1959).






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a racial minority--while America at the same time indulged itself in racial discrimination. This discrimination was not confined to the home front but was extended to the segregated armed services put into the field by a democratic America to contend with the totalitarian states. The anomaly of this situation was too stark to pass unnoticed, particularly by the Negro. The Second World War illuminated the problem of civil rights and racial minorities within the American nation and generated pressures for equality which called for an accelerated pace in the quest. Those individuals who, after the Second World War, sought return to pre-war status for civil rights in America sought a vanished Atlantis.
One of the first manifestations of the changed civil rights climate in the country was President Truman's Executive Order of December 1946 establishing the President's Committee on Civil Rights.20 This Committee was to inquire into possible methods of establishing firmer safeguards for the civil rights of American citizens. The Committee sent its recommendation to the President the following year.21 Among these were (1) Reorganization of the Civil Rights Section of the Department of Justice to provide for the establishment of regional offices, increased staff and appropriations, an increase in investigative action in the absence

20Exec. Order, No. 9808, 11 Fed. eq. 14153 (1946).
21President's Committee on Civil Rights, o Se e sp Riaht (1947).






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of complaints, greater use of civil sanctions, and the elevation of the Rights Section to full division status within the Department of Justice;22 (2) Establishment of a permanent Commission on Civil Rights within the Executive Office of the President and the simultaneous establishment of a Joint Standing Committee on Civil Rights in Congress23 (3) Legislation providing that "no member of the armed forces shall be subject to discrimination of any kind by any public authority or place of public accommodation, recreation, transportation, or other services";24 (4) Congressional action to condition all federal grants-in-aid and other forms of public assistance "to public or private agencies for any purpose on the absence of discrimination and segregation based on race, color, creed or national origin";25
(5) A federal Fair Employment Practices Act;26 and (6) "The enactment by the states of laws guaranteeing equal access to places of public accommodation, broadly defined, for persons of all races, colors, creeds, and national origins."27
Plainly the Committee's recommendations were comprehensive, far reaching, and would involve a re-entry of the

22a. at 151.

231. at 154.
241. at 163.

25U. at 166.
26ZA. at 167.

27U. at 170. (Emphasis added.)






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federal government into the civil rights field on a scale that would exceed the high tide of federal involvement after the close of the Civil War.

In addition to the above generalized recommendations, the President's Committee had specific suggestions as to the manner in which the suffrage might be strengthened. First of all, the Committee called for action by the states or Congress to eliminate the poll tax as a voting prerequisite, adding that "Failing such prompt state action, we believe that the nation, whether by act of Congress or by constitutional amendment, should remove this final barrier to universal suffrage."28 The Committee then called for a federal statute to protect the right of qualified persons to participate in federal elections free from interference by public officers or private persons.29 A third recommendation called for another federal statute which would protect the "right to qualify for, or participate in, federal or state

primaries or elections against discriminatory action by state officers based on race, or color, or depending on any other unreasonable classification of persons for voting.'30

Although the President's Committee did not call for

the federal enactment of a public accommodations measure, recommending instead that such a significant measure be

28w, at 160. (Emphasis added.)

29.d.

3 0LIU1






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enacted by the states, certainly the thrust of the report was toward increased federal--not state--activity. This feature of the Committee's report would also characterize the later reports of the Civil Rights Commission. The states, in particular the Southern states, had little to show by way of accomplishment in the civil rights field for the period up to the time of the Committee's report in 1947. The Committee's

report was, in fact, an announcement that time had just about run out on these states.

The year following the report of the President's Committee on Civil Rights, President Truman took two more steps in the civil rights field via the method of executive order. One such order was aimed at eliminating segregation in the armed forces of the country31 and another, issued on the same day, proclaimed the policy of "fair" employment for the federal government and created a Fair Employment Board within the Civil Service Commission.32

.In the same year, the Supreme Court handed down

unanimous decisions in two cases which, while upholding the validity of restrictive covenants, denied them judicial enforcement. Though not dealing with the suffrage, the two cases clearly indicated a broad willingness on the part of the Court to utilize judicial power to strike at racial discrimination. In Shelley v. Kraemer33 the Court found that

31Exec. Order No. 9981, 13 Fed. Req. 4313 (1948).
32Exec. Order No. 9980, 13 Fed, Req. 4311 (1948).
33334 U. S. 1 (1948).






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it was "clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint."34 Judicial enforcement of restrictive covenants was, in short, state action within the meaning of the fourteenth amendment. "The Constitution," said the Court, "confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals."35 In the second case, Hurdv. Vgde,36 arising in the District of
Columbia where the fourteenth amendment would not apply, the Court held that judicial enforcement of restrictive covenants would be a violation of section 1 of the Civil Rights Act of 1866.37
The most significant court decision in this post-war era before the passage of the 1957 civil rights measure was, of course, Brown v. Board of Education of Toeka.38 This decision was not nearly so abrupt a change on the part of the Court as its critics would have us believe. A careful study of the cases dealing with racial discrimination, and particularly education, prior to BML reveal quite clearly the

341g. at 19.
351, at 22.
36334 U. S. 24 (1948).

378ee p. 26 supra.
38347 U. S. 483 (1954).






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road which the Court was travelling.39 Although Brown was concerned specifically with segregated education in the public schools, holding it violative of the fourteenth amendment, it struck a body blow at segregation in general, at the concept of "separate but equal," and at the idea of two classes of citizens with a separate class of rights for each.
The intense drive to secure unfettered recourse to the ballot by the Negro is more easily understood if it is considered against this backdrop of the burgeoning Age of Civil Rights. Racial restraints and disabilities were falling away on every hand and their demise only quickened the desire to be rid quickly of those that remained. The power of the ballot, if access to the polls could be secured, would tend to insure that remaining vestiges of second-class citizenship would receive more attention than heretofore from elected officials at all levels of government.

Th 1957 Civil Riahts Act
Federal action to protect and promote the right to
vote was at the heart of the Civil Rights Act of 195740 and also of the Act of 1960.41 These acts were not only a

39For examples Missouri ex rel Gaines v. Canad, 305 U. 8. 337 (1938); jiguel v. Board of ReceUts of t Un rity of Oklahoma 332 U. 8. 631 (1948) McLaurin v. Ok1 , 339 U. 8. 637 (1950); Sweatt v. Paintr. 339 U. 8. 62i9_ (19560.
40Act of Sept. 9, 1957, 71 5&" 634.
41Act of May 6, 1960, 74 fg&. 86.






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reflection of the continuing Negro migration42 to the North, and subsequent increased Negro participation in the electoral process, but also a reflection of increased problems of civil rights throughout the country.

The passage of these acts was of momentous importance for American federalism--for relations between the federal government and the states. As a result of their enactent, the federal government and the states, or at least five of them, would be locked in constant court battles over issues of suffrage. Part IV of the 1957 act set the stage by prohibiting attempts to intimidate or prevent any person from voting in general or primary elections for federal offices.43 Part IV of the act also provided that the Attorney General was empowered to seek an injunction when any person

42Hart, "The Changing Distribution of the American
Negro," 50 Annals of the Association of AMrican Geograhers 242 (1960). This article provides an interesting description of the patterns of Negro migration out of the South.
43"No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Conmmissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate." 71 g . 637 (1957), 42 US.C.A. Sec. 1971(b) (Supp. 1963).






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was deprived or about to be deprived of his right to vote.44
Constitutionality of this particular section was challenged in the first suit arising under the 1957 act, United States v. Rain 45 The United States District Court for the Middle District of Georgia dismissed the suit, holding that this section of the act was unconstitutional because its language applied to private persons and was "not limited to State action."46 Congress, thought the district court, had exceeded its power under the fifteenth amendment in authorizing the United States, through its Attorney General, to enjoin purely private action which had as its object the depriving of persons of their right to vote on account of race or color. The complaint in the suit involved only official action, but the court ruled that since the statute on its face was susceptible of application beyond the limitations of the fifteenth amendment, it was unconstitutional in all its applications.

44Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b), the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person." 71 Sg 637 (1957), 42 U.S.C.A. Sec. 1971(c) (Supp. 1963).
5)45USited g v. Raines 172 F. Supp. 552 (M.D.Ga. 1959).


46g.. at 558.






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The district court's ruling was reversed by the Supreme Court which believed that the question of constitutionality had been prematurely injected into the case. "Whatever may be the reach of the Fifteenth Amendment," said the Court,
it is enough to say that the conduct charged-discrimination by state officials, within the
course of their official duties, against the voting rights of United States citizens, on
grounds of race or color-is "state action" and
the clearest form of it, subject to the ban of
that amendment, and that legislation designed to
deal with such discrimination is 'appropriate
legislation' under it.47
After eighty-two years federal participation in the civil rights field once again was entering the flow stage. The ending of the legislative drought on civil rights reflected vividly the change in the civil rights climate throughout the nation. Although proponents of the 1957 bill did not get all they desired in the measure as finally passed,48 it cannot be denied that the 1957 act was a significant step forward in extension of the suffrage,
Part I of the 1957 act was also of great significance for federal-state relations. Under this part, the Civil Rights Commission was created and empowered to (1) investigate allegations that citizens of the United States were

47nited States v. Raines 362 U. S. 17 (1960).
48Eliminated from the bill was Part III which would
have provided that the Attorney General could initiate suits seeking injunctions against any person who deprived or was about to deprive any other persons of any civil right.









being deprived of their right to vote and have that vote
counted on account of race, color, religion or national
origin; (2) study and collect information concerning legal
developments constituting a denial of equal protection of
the laws under the Constitution; and (3) appraise the laws

and policies of the Federal Government with respect to equal

protection of the laws under the Constitution.49

The effect of this part was to establish a new federal

agency, particularly devoted to the advancement of civil

rights and which would devote its full time and resources to
investigation and probing of those sensitive spots which
some of the states were least inclined to have investigated

and analyzed.50 Chief among such matters was that of suffrage.


1963). 4971 fA, 635 (1957), 42 U.*LC.A. Sec. 1975(c) (Supp. 1963).

50An attack on the rules of procedure adopted by the Commission as being violative of the fifth amendment was fended off by the supreme Court in HAh v. Larce, 363 U. 8. 420 (1960). The Court held that the Commission was authorized under the 1957 act to adopt rules providing that complainants to the Commission could remain unidentified, that those testifying before the Commission, including individuals against whom complaints had been lodged, could not crossexamine other witnesses called by the Conniasion, and that the Commission's rules of procedure did not violate, under the due process clause of the fifth amendment, the rights of those individuals who had complaints filed against them. The Court found the Commission's functions were
"purely investigative and factfinding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life,
liberty, or property. In short, the Comumission


- 78 -






- 79 -


In its first two years of existence the Civil Rights Commission, composed of six members, held hearings in New York City and Chicago in the North, as well as in Montgomery, Nashville and Atlanta in the South. The findings and recommendations of the Commission's first two years, as submitted in its 1959 report,51 are an interesting commentary on the tendency for expansion apparently inherent in governmental agencies as well as an insight to Commission thinking concerning the clash over suffrage between the federal government and the states.

As a first recommendation, the Commission proposed-since it felt there was a general deficiency of information available on the phenomenon of non-voting as it related to race, color, and national origin--that the Census Bureau be authorized to take a nation-wide compilation, by supplementary census if necessary, of registration and voting statistics which would include a count of individuals by race, color and creed, registered to vote and the extent of their previous voting participation.52

does not and cannot take any affirmative action which will affect an individual's legal rights.
The only purpose of its existence is to find facts
which may subsequently be used as the basis for
legislative or executive action." Hannah v.
Larche, s-1 at 441.
51U. S. Commission on Civil Rights, Report of the Commission 1959 (1959) [Hereinafter cited as 1959 Civil Rights Report].
52Ld at 136.








Second, the Comission decried the lack of "uniform" provisions for the preservation of voting and registration records. Lack of such information impeded its work. The r ecmndation was made that Congress require that all state voting and registration records be preserved for a period of five years and be open to public inspection.53
Third, the Conmmission proposed that Congress amend the Civil Rights Act of 1957 to make it illegal for state officials to refuse to perform their duties in registering voters. This re omndation was directed at those cases where registrars refused to function or were not appointed.54
During the voting hearings in Montgomery, Alabama, in 1958, the Comaission was, it said, "impressed with the fact that its purposes were not fully realized because of the divided authority for compelling production of registration records."55 The Commission could, in fact, subpoena records but only through a request to the Attorney General to seek court process to compel a contumacious witness to comply with the Comnission's subpoena. The Commission found such divided responsibility "unusual" and believing that such situations "require rapid, coordinated action and comnication," it asked that in cases of contumacy or refusal to obey a subpoena issued by the Commission, the Commission be empowered to

531. at 138.

54 .
55@. at 139.


- 80 -






- 81 -


apply directly to the appropriate federal district court for enforcement process.56
Finally, the Commission recommnded that a federal registrar system be initiated. Under this proposal, upon receipt by the President of sworn affidavits from nine or more individuals-in any political subdivision of a state-alleging that they had attempted to register and were denied the right to register on account of race, color, religion, or national origin, the President would turn these affidavits over to the Commission for investigation of their validity. The Commission would certify the well-founded affidavits to the President who would appoint a temporary registrar in the area from which the complaints were received. This registrar would administer the state laws on voter registration and issue registration certificates to those qualifying, enabling them to vote in federal elections. Jurisdiction would be retained until such time as the President determined that the presence of the registrar was no longer necessary.57 This recommendation was, in effect, a reworking and elaboration of the supervisor system set forth by the Act of February 28, 1871,58 with a central role for the new Commission on Civil Rights.

561WA,

57a. at 141-42.
5816 fg. 433.






- 82 -


The Commission's recommended registrar system is a most significant suggestion. The registrar scheme would have a federal officer, appointed at federal discretion, administering sate law because federal discretion had

decided that state law was not being erly administered. If such an arrangement in regard to voting registration seems feasible to the Commission, why, one might ask, would not something similar seem appropriate in regard to education that is, if local school boards continued to stall on desegregation of schools, or to gerrymander school districts to achieve or to continue segregation, why not appoint federal officers to draw the school district lines to assure compliance with the "equal protection" guarantees of the fourteenth amendment? That the proposal would result in a great shift in federal-state relationships cannot be gainsaid.
As this recommendation demonstrates, the problems of eliminating racial discrimination in our federal system frequently generate an impatience with the system and a chafing at its restrictions. There is a tendency to want to slice directly through the entanglements of federalism and achieve "equality" with a decisive stroke. This characteristic will become more apparent as this study proceeds.
In addition to all the recommendations discussed above, three of the Commissioners--Hannah, Besburgh and Johnson--proposed slashing directly through the Gordian knot






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of the suffrage problem with a constitutional amendment "to

establish a free and universal suffrage throughout the United

States," viewing this "as the best ultimate solution of the

problem of securing and protecting the right to vote."59

The Commission added that the proposed amendment was "in

harmony with the American tradition and with the trend in
the whole democratic world" and would "reassure lovers of

freedom throughout a world in which hundreds of millions of
people, most of them colored, are becoming free and are
hesitating between alternative paths of national development."60
In deference to the federal-state relationship involved, the three Commissioners said that
an important aim of this amendment would be to remove the occasion for further direct federal intervention in the states' administration and
conduct of elections by prohibiting complex
voting requirements and providing6lear, simple,
and easily enforceable standards.

591959 Civil Rights ReoXrt 143.
60. at 144.
61 &i. The proposed amendments
"Section 1. The right of citizens of the United
States to vote shall not be denied or abridged by
the United States or by any State or by any person
for any cause except inability to meet State age
or length-of-residence requirements uniformly applied to all persons within the State, or legal
confinement at the time of registration or election.
This right to vote shall include the right to register or otherwise qualify to vote, and to have one's vote counted. Section 2s The Congress shall have
power to enforce this article by appropriate legislation . . . ." E. at 144-45.






-84-


A court injunction could require that any person who met these clear cut state qualifications be immediately registered. The effect of such a proposal would be to eliminate future state-federal clashes by stripping the states of their power to set voting qualifications other than age, residence, and absence of legal confinement at the time of registration or election. Uniformity would be substituted by constitutional amendment for that diversity often put forth as one of the virtues of a federal system.62
It should be borne in mind that the Commission's
amendment proposal, as well as its other voting proposals, are aimed primarily at four states-Alabama, Georgia, Louisiana, and Mississippi-judging by the concentration of voting suits filed by the Justice Department in these states. These states must take primary responsibility for the push toward uniformity and the restriction of state control which

62Carrying the Commission's reasoning on the suffrage amendment one step further, one might maintain that federalstate clashes in the field of education might similarly be averted by another constitutional amendment establishing a uniform racial-balance percentage figure which states would be obliged to maintain within their public schools as evidence of non-segregated education. This would also provide "clear, simple, and easily enforceable standards."
Interestingly enough the Commission did recommend that
the office of Education of the Department of Health, Education, and Welfare, in cooperation with the Bureau of the Census,
"conduct an annual school census that will show the number and race of all students enrolled in
all public educational institutions in the United
States, and compile such data by States, school
districts, and by individual institutions of
higher learning within each state." 1, at 327.






- 85 -


is involved in the Commission's proposed amendment. By their discriminatory behavior in the field of suffrage, these four states have brought retaliatory action on themselves. The passage of the 1957 civil rights measure and the recomendations of its prime administrative am, the Civil Rights Commission, should have served as a warning and an indication of the mood of the country to these four states.
As the second general report of the Commission made in 1961 would indicate, however, discriminatory suffrage tactics increased after the passage of the 1957 act. Furthermore, Negroes, becoming impatient with the progress being made in the civil rights field generally, initiated the tactics of the "sit-in" early in 1960. This tactic along with boycotts, picketing, and street demonstrations grew in popularity as a means of expressing dissatisfaction.

The 1960 Civil Ridhts Act
In May of 1960 Congress was able to pass another civil rights bill63 which, like the measure passed in 1957, was designed basically to help Negroes to secure the right to vote.64 This new act took several steps in the direction of recommendations made by the Civil Rights Commission in its 1959 report. First of all, the new civil rights measure

63Act of Meay 6, 1960. 74 gg, 86.

64For a study of the legislative struggle involved in the passage of the 1960 act see Berman, A Bill ecames a Laws The Civil Riahts Act of 1960 (1962).






- 86 -


provided in Title III that voting records and registration records for all federal elections, primaries included, must be preserved for a period of twenty-two months after the election and made provision for the inspection of these records by the Attorney General.65 The Commission had, it will be recalled, recommended preservation of the records for a period of five years.
Much litigation has centered on this particular provision of the act.66 The essence of the constitutional attacks has been that Title IlI's provisions constitute a denial of due process guaranteed under the fifth amendment and are repugnant to the commands and protections of the sixth amendment. For example, in one of the latest cases, Kenedy v. jgX67 the defendant registrar contended that
due to the criminal sanctions available to the
Attorney General under Title ZZI of the 1960
Civil Rights Act . . . [the defendant registrar]
should be informed of the nature and cause of the
accusation: be confronted with the witnesses
against her and have the right of cross examination
of these witnesses and all other safeguards guaranteed . . . under the Sixth Amendment of the
United States Constitution. The demand to inspect


1963). 6574 E� . 88 (1960), 42 U.S.C.Ag Sec. 1974 (Supp. 1963).

668ee, for example, re A.B. (Brown) Gordon, 218
F. Supp. 826 (S.D. Miss. 1963); CoiAA v. Kenney313 F. 2d 867 (5th Cir. 1963); In re Coleman 208 F. Supp. 199 (S.D. Miss. 1962); Kennedy v. J l, 306 I. 2d 222 (5th Cir. 1962)1 Kennedy v. Bagg 298 F. 2d 860 (5th Cir. 1962); D=n v. Attorney General of %United States, 285 F. 2d 430 (1961); Alaama e~x rel Gallion v. Rg 187 1F. Supp. 848 (M.D. Ala. 1960).
67325 F. 2d 210 (5th Cir. 1963).






- 87 -


the records in her custody by the Attorney General
for the purpose of ascertaining whether or not
Federal law has been violated amounts to an accusation against her.
The court of appeals rejected this contention sayings

We repeat here that the proceedings and hearings
afforded to Mrs. Lewis comport with procedural
due process and there is no substance in the attacks of the appellee on the constitutionality
of this section of the law under the Fifth Amendment, the Sixth Ant, or any other part of
the constitution.

Shortly before this decision in December 1963, the

Supreme Court in July of the same year had refused to stay

an order of the same court, tLe Court of Appeals for the
Fifth Circuit, in another case70 directing Mississippi

registrars to make voting records available to the Attorney

General.71 Justice Black, speaking for the Court, said

that
whatever might be the case if movants were being
summoned by the Attorney General, not simply to produce documents of which they are mere custodians, but to give oral testimony amounting in
fact to the first step in a criminal prosecution . . . I agree with the Solicitor General that, under the circumstances here, the constitutional questions raised are not so substantial
as to justify my upsetting the order of the Court

68Brief for Appellee, p. 49, Kegala v. "g 325 F. 2d 210 (5th Cir. 1963).
69&a d v. AgyJ, 325 F. 2d 210, 211 (5th Cir.
1963). A similar statement was made by the same court of appeals in ae v. 2agg 321 F. 2d 116, 117 (5th Cir. 1963), a case involving similar circumstances.
7KennedX vv. Sw 321 F. 2d 116 (5th Cir. 1963).

v. Kenned 84 S. Ct. 12 (1963).






- 88 -


of Appeals. That order does not require movants
to testify before any office, official, or agency,
but only requires them to make available to the
Attorney General or his representative, under fair and reasonable conditions, records of which movants are not the owners but are only custodians for the
State or its agencies. Our Court has unifourmly held that one who is a mere custodian of records
cannot invoke the Fourth or Fifth Amen ts to
resist an order to produce such records.

Another new provision was contained in Title IV of

the 1960 act. Under this title the Civil Rights Commission was empowered to administer oaths and to take sworn statements.73 Rather surprisingly, the 1957 act contained no such provision.
Title VI of the new civil rights bill74 took steps in the direction of the Commission's 1959 registrar proposal.75 Under this title when a federal court finds in a suit brought under the 1957 act that a person has been deprived of his right to vote on account of race or color, the Attorney General may ask the court to find that deprivation was pursuant to a pattern or practice. If the court finds that such pattern or practice exists, then any person of that race or color may apply to the court for an order declaring him qualified to vote upon proof that at any

72a. at 13.
7374 gtar. 89 (1960), 42 pUSAo.A Sec. 1975(d) (Supp. 1963).
7474 Sa. 90 (1960), 42 U.S.C. Sec. 1975(e) (Supp. 1963).
758ee p. 81 ga.g






- 89 -


election or elections (1) he was qualified under state law to vote and (2) he has since the finding of pattern or practice by the court (a) been deprived of the opportunity to register and vote under color of law or (b) found unqualified to vote by any person acting under color of law.
To carry out these provisions the court is empowered to appoint voting referees with power to review the applications, take evidence and report their findings to the court. These referees proceed ex parte at such times and places as the court directs. The applicant's statement under oath is considered as prima facie evidence of his age, residence, and prior efforts to register to vote. Where proof of literacy or "understanding" is required by state law the applicant's written answers are to be included in the report to the court and if the test is oral, his answers are to be taken down stenographically and included in the report. The applicant's literacy and understanding of other subjects would be determined solely on the basis of answers included in the voting referee's report.
Title VI also provides that state officials are alloved to challenge the referee's report within a time limit fixed by the court but not to exceed ten days. The issues of facts and law raised by exceptions to the referee's report would be determined by the court, or if speed were of the essence, they could be determined by the voting referee in accordance with judicially prescribed procedures. An






- 90 -


applicant who applied for a court certificate twenty days or more before an election and found his application challenged is allowed to vote provisionally if his case were not decided by election day, provided that he is qualified to vote under state law.
In order to solve the problem of resigning registrars and similar dilatory maneuvers, the last section of Title VI provides that where a state official is alleged to have committed any act or practice which constituted a deprivation of rights secured by section 1971(a) of the United States 46,76 the act or practice is to be considered that of the state and the state could be joined as party defendant if, prior to the institution of the suit, the state official involved resigned, or was relieved of his position, and no successor had replaced him.77
In spite of these additional methods of protecting
the right to vote the Civil Rights Commission found in 1961 that the nation still faced "substantial and urgent problems in civil rights." One of the outstanding of these problems was the fact that in "some 100 counties in eight Southern states there is reason to believe that Negro citizens are prevented-by outright discrimination or by fear of physical

76See Appendix A.
7774 S t. 92 (1960), 42 U.S..A. Sec. 1971(c) (Supp. 1963).






- 91 -


violence or economic reprisal-from exercising the right to vote."78
The Commission went on to say that although "the gap between the promise of liberty and its fulfillment is narrower today than it ever has been in the past," a gap nevertheless remained which "in the changing world of 1961 seems wide and deep, and the demand to close it is more urgent than ever."79 This urgency, the Commission said, was due in part, to the fact that "the closer we come to the achievement of our ideal, the more obvious and Saina& is the remaining disparity,"80 and due in part to
events [that] in a rapidly changing world have put
a new focus on the way in which the United States puts its principles into practice. The emergence
of new nonwhite nations in Africa and Asia does
not make an inequity anymore unjust. I may, however, make remedial action more urgently
As in 1959, the Commission made recommendations which it felt would improve the situation in regard to suffrage. By 1961 the Commission had apparently despaired of getting an amendment guaranteeing "free and universal" suffrage and recommended instead that Congress take action

781961 Renort on Votina 5.

791. at 1.

80J~Jg. (Emphasis added.)

81g. at 2.






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under the second section of the fifteenth amendment82 and

sections 2 and 5 of the fourteenth amendment83 to

(a) declare that voter qualifications other than
age, residence, confinement, and conviction of a crime are susceptible of use, and have
been used, to deny the right to vote on
grounds of race and color.

(b) enact legislation providing that all citizens
of the United States shall have a right to

82The fifteenth amendment to the United SAtes Conatitution in its entiretys
"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation."

83Sections 1, 2, and 5 of the fourteenth amendment to the Ujited States Consatitutions
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial Officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State,
Section 5. The Congress shall have power to enforce.
by appropriate legislation, the provisions of this article."






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vote in federal or state elections which
shall not be denied or in any way abridged
with by the United States or by any State
for any cause except inability to meet
reasonable age or length-of-residence requirements uniformly applied to all persons
within a State, legal confinement at the
time of registration or election, or conviction of a felonyl such right to vote to include the right to register or otherwise
qualify vote, and to have one's vote
counted.
The Commission's second recommendation was for Congress to enact further legislation providing that in all elections in which a literacy test, an understanding test, an educational test, or an interpretation test was required by state law, such requirements would be fulfilled if the elector had completed six grades of formal education.85
An amendment of existing law86 was also requested by the Commission to prohibit "any arbitrary action or (where there is a duty to act) arbitrary inaction, which deprives or threatens to deprive any person of the right to register, vote, and have that vote counted in any Federal election."87
In two concluding proposals, the Commission recommended, first, that Congress consider the advisability of

841961 Reaort on Votina 139.
851A. at 140. The Ku Klux Klan, interestingly enough, had urged only a four-year standard in 1925. eras Befor S~ubommittee No. 5 of the House Committee on the car, 88th Cong., 1st Bess., ser. 4, pt. 2, at 1143 (1963).
86Specifically, 42 U.J.. Sec. 1971(b). See note 43 ggpg
871961 Report on Voting 141.






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requiring that voting districts for federal elections or state elections to any house of a state legislature elected on a population basis be equal in population as nearly as possible, and that the federal courts be given specific jurisdiction of cases arising out of such election district requirements.88 Second, the Commission again renewed its proposal for an immediate nationwide compilation of registration and voting statistics including a "count of persons of voting age in every State and territory by race, color, and national origin, who are registered to vote, and a determination of the extent to which such persons have voted since January 1, 1960."89 As a part of the last proposal, the Commission recommended the addition of a requirement that the Bureau of the Census compile such information in each next succeeding decennial census, and at such other times as Congress might see fit.90 The legislative dam had been breched with the 1957 act and, as has been outlined in this chapter, there has been an increasing demand for


89,

90%@, at 141-42.






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federal legislated equality throughout the subsequent
years.91 In regard to the suffrage, this demand can be laid

at the doorsteps of a few obstreperous Southern states. In

regard to civil rights in general it can be laid at the
doorsteps of all fifty states of the Union.

91The period generally is one where emphasis is
placed on action, not reflection and thought. There were, of course, exceptions. Alfred DeGrazia writing in early 1959 remarked that the 1957 Civil Rights Bill,
"as with most bills of like character that have
faced Congress, has envisioned greater use of
the federal police power to enlarge civil rights.
Such proposals depend for their success upon the direct reform of people who feel that they would
betray their deepest loyalties by being 'reformed.'
Indeed the present law may operate so as to indefinitely postpone reform and may lead only to
greater disrespect of police and courts--with
possibly an even more bitter attempt later on at
more policing and more litigation." Alfred DeGrazia "A New Way Towards Equal Suffrage," 34 N.Y.UL. Rev.
716 (1959).
As an example of this latter tendency DeGrazia cited a report on p. 11 in the New York Times of March 21, 1959, of Attorney General Rogers on the previous day defending before a Senate Judiciary Subcommittee a plan proposed by the executive branch to designate as a federal crime the use of force or threats of force in resisting judicial attempts to desegregate schools. bDa.
It is also interesting to note in this context the remarks attributed to Dr. Martin Luther King to the effect that the federal marshalls were not equipped to handle the civil rights policing job and that a "big federal police force would be needed at first . . . when citizens learned
of its existence, the need for it would diminish." Hea Before Subcommittee No. 5 of the House Couittee on the 8udiciar 88th Cong., 1st Sess., ser. 4, pt. 3, at 2155 (1963). (Hereinafter cited as 1963 Civil Richts HearinQs, pt. 3].












CHAPTER IV


THE EXPANDING "FEDERAL PRESENCE"

As the nation entered the decade of the 1960's it

was, in effect, engaged in a second Reconstruction. It was, however, a Reconstruction aimed at the nation as a whole and not confined merely to the South. With the exception of the Negro suffrage problem which remains peculiar to the South,1 Negro protest activities in the Sixties have made it plain that racial problems are nationwide. School boycotts, picketing, and sit-ins to protest de acgsegregation in education are widespread phenomena across the nation, particularly in the large urban areas.2 Picketing and threatened boycotts are used to enforce job demands. In the late summer of 1963, for example, the National Association for the Advancement of Colored People issued a threat to boycott

1United States Commission on Civil Rights, gJ Rights '63 13-50 (1963) [Hereinafter cited as 1963 Civil Riahts Recortd.

2The Civil Rights Commission reported that the metropolitan area of New York City had been the center of such protests since the summer of 1961 and that similar demonstrations had occurred in Philadelphia, Boston, Chicago, and St. Louis. Xd. at 53-54. Since the Commission's 1963 findings, school boycotts have increased in popularity as a protest tactic. Early in 1964 a reported 462,363 out of New York City's 1,000,000 public school children staged a one-day boycott to protest segregated schools. "The Spreading Boycott," Ig Feb. 14, 1964, p. 48.


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- 97 -


Hollywood movies and the products of television sponsors unless Negroes were given increased roles throughout the industries concerned.3 The Negro was anything but a helpless and passive bystander in this second Reconstruction as these activities demonstrate. He was, in effect, demanding a racial revolution for the entire nation.
President Kennedy's Civil Rights Message of June 19, 1963,4 and the proposals contained therein reflect the intensity and the quickening pace of the racial revolution. They reflect the extent to which the President and others of like mind would have the federal government go in alleviating the nation's race problems. In addition to voting proposals, which will be discussed in detail later, the President asked for inclusion in a Civil Rights Act of 1963 the following: (1) A provision which would guarantee to all citizens equal accommodations in public facilitieser5

(2) Authority to enable the Attorney General to initiate suits in federal district courts against local school boards or public institutions of higher learning in order "to

3The NAACP demanded that: "(1) Negroes appear in
television commercials. (2) Negroes be shown in professional roles to balance menial roles. (3) Negroes comprise oneninth of film casts and crews, since they comprise about one-ninth of the nation's population. (4) The Negro be depicted as he really is in the context of American life.
(5) A Negro have a continuing role on each television series." Gainesville Sun, Aug. 16, 1963, p. 14.

4. R. Doc.- No. 124 (1963).

511. at 3-5.




Full Text

PAGE 1

NEGRO SUFFRAGE IN RELATION TO AMERICAN FEDERALISM, 1957-63 By ROBERT LEE ANDERSON A DISSERTATION PRESENTED TO THE GRADUATE COUNQL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA August, 1964

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TABLE OP CONTENTS Chapter Page I. FEDERALISM UNDER PRESSURE .... 1 States Rights and Responsibilities .... 8 Leadership of the Western World ...... 10 The Welfare State . • • • 13 A Lack of Consistency . 14 II. THE FEDERAL TIDE 23 The Flow Stage 23 Ebb Tide 40 Between Ebb and Flow 45 III. THE CIVIL RIGHTS TEMPO INCREASES 61 The Federal Judiciary in the Forefront . . 61 A Changing Climate 67 The 1957 Civil Rights Act 74 The 1960 Civil Rights Act 85 IV. THE EXPANDING "FEDERAL PRESENCE" 96 Expansion of a Technique . 103 Economic Coercion 110 Enjoining State Criminal Proceedings ... 117 Enjoining a School Board 122 V. TOWARDS UNIFORMITY . 126 The Demise of the Louisiana Interpretation Test 135 The Citizenship Test 141 The Voter Application Form is Attacked . . 149 Pressure on the Literacy Test 151 A Lesson Unlearned 159 VI. CAUSE FOR CONCERN 163 ii -

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Page APPENDIX A. Relevant Pre-1957 Civil Rights Statutes 179 B. The Georgia Voter -Registration EKamination 181 C. The Louisiana Voter Application Form 184 BIBLIOGRAPHY 186 iii -

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CHAPTER I FEDERALISM UNDER PRESSXJRE In 1939 Professor Harold J. Laski concluded that the epoch of federalism was over.^ His was a coimnon pessimism. In that year many of his less literary contemporaries, barely emerging from the wringer of the Great Depression, would have agreed that something was "wrong" with their government. Like the reports of Mark Twain's death in his own time, such glo«ny reports on federalism as Laski 's made in the gray decade of the Great Depression today sean perhaps somewhat exaggerated from our more comfortable position in the 1960 's. Although federalism as a system of government has not passed from the world scene, it exists in a decided minority of present-day states. Only four states are today generally acknowledged by writers on federalism to employ the federal system of government: Australia, Canada, Switzerland, and the United States.^ These four states are non -conformists in a world society of uniteury governments. '-Laski, "The Obsolescence Of Federalism, " The New Republic, May 3, 1939, p. 367. 2see, for example, Livingston, Federalism and Constitutional Change (1956) emd Wheare, Federal Government (3rd ed. 1953) .

PAGE 5

The precise standard used to classify these states « that is, the definition of federalism employed, varies somewhat, though not greatly, from scholar to scholar • • K. C. Wheare, for example, defines the "federal principle" as "the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent."^ William S. Livingston sees federal government as a form of political and constitutional organization that unites into a single polity a niaiiber of diversified groups or component parts so that the personality and individuality of the component parts cire largely preserved while creating in the new totality a separate and distinct political and constitutional unit,Livingston goes on to suggest some characteristics of federalism which are found to be common and frequently described as essential to federal systems. He reserves judgment, however, as to whether particular characteristics are absolutely necessary. These chcoracteristics are: (1) a written constitution; (2) a formal distribution of power; (3) a constitutional interpretation of the terms of distribution; (4) representation of the states as states in the legislature; (5) dual citizenship; (6) an executive with federal qualities, for example* a state-based electoral college in the United States for choosing the president and Senatorial approval of executive appointments; (7) a process of constitutional amendment.^ 3wheare, 2E.« cit . supra note 2, at 11. '^Livingston, op. fiit* !?^pi^^ note 2, at 9« Sj^. at 10-11.

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Both Wheare and Livingston agree that in classifying governments one must go beyond mere outv/ard appeeurances and ascertciin how the government in question actually operates in practice. Thus Wheare found that although the Canadian Constitution was "quasi-federal in law," it was "predominately federal in practice."^ On the other hand, Livingston found that in the "four ostensible federal systems" in Latin Araer*; ica at the time (1956) , federalism had "been confined to the constitution" and "had little effect on the processes of government."' Both Wheare and Livingston confine the federal classification to the four states previously mentioned. A similar classification of these four states might be airrived at by defining federalism in yet another v/ay as "a division of powers between central and local governments by an authority superior to both and in a way that cannot be changed by the action of either the local or central unit acting alone. "^ In essence this definition and those of Wheare and Livingston are not widely divergent. The theory and practice of federalism has intrigued scholars generally and in no place more than in the United States. Any number of studies have been and are being made ^Vlheaxe, 2E.» cit . gHEIia. rio^e 2, at 21. "^Livingston, ae.* cit . supra note 2, at 293. Qswarthout and Bartley, Principles and Pr oblems of ftMFii'^fl P ^ation^ Goverrmient 89 (2d ed. 1956).

PAGE 7

4 concerning American federalism.^ It is nevertheless of moment to make a limited examination of American federalism today. Federalism is an ever -changing concept and analysis of present status, contrast with past position, and some attention to future developnent is always in order. Professor Laski's examination was concerned to a large extent with economic ills and the federal system, reflecting quite naturally that paramount problem of tliose times. When we look at the American federal system today, however, we find that it is suffering from another major ailment. Albeit economic ills still persist , ''^ they cire not pciramount. The present disorder has been long inciibating and virulent symptoms have appeared periodically, but it is in the last several decades, and more precisely in the last decade, that the affliction has become more pronounced and demanded almost ^Some of the more recent studies which deal wholly or in part with Americcui federalism are: Anderson, The Nation and the States ; Rivals or Partners? (1955) ; Benson, Essavs In Federalism (1961); MacMahon (ed.) , Federalism : Mature and Emergent (1955) ; Morley, Freedom and Federalism (1959) ; Rockefeller, The Future of Federalism (1962) . Of the older studies the following, among others, are of interest to students of federalism: Benson, The New Centralization (1941) ; Brogan, The Crisis of American Federalism (1944) ; Clark, The Rise of a New Federalism (1938) ; Pound, Federalism as a Democratic Process (1942) . ^^In his State Of The Union Message of January 8, 1964, President Johnson declared that poverty was a national problem and pledged his administration to war against it. The President estimated that one -fifth of American families had incomes "too small to meet their basic needs." H. R . Doc. No. 251 , 88th Cong., 2d Sess. 3 (1964). For a detailed description of the "one in every five" who is poor see Bagdikian, "The Invisible Americans," The Saturday Evening Ppst, Dec. 21-28, 1963, pp. 28-39.

PAGE 8

constant attention. It is primsirily with civil rights ills that American federalism must contend in the Age of Atom euxd Space. American federalism has suffered from "civil rights malnutrition." Mobs, police dogs, and terror are the resulting scurvy. One need only scan the dciily newspapers to * follow the epidotaic. Treatment has been most vigorously demanded, profusely prescribed, and in some instances applied* The prognosis is still uncertain. As is the case with some diseases, affliction with this one may, in the end, make the patient healthier overall and the stronger for his suffering. It may confer some degree of immunity for the future. Conversely, however, such affliction may lead to his general debilitation and ineffectiveness and, at the very extreme, to his ultimate demise in spite of well-intentioned treatment. It is perhaps argumentative and arbitrary to attempt . to isolate a paramount civil right, to single out a particular one as more important than any other, and to say that this or that particular one is of the essence for our democratic system and the federalism within which it operates. Nevertheless one particular right, the right to vote, has been selected for discussion and analysis. The struggle for Negro suffrage will serve as a study to gain insight into the character of American federalism with particular reference to the period 1957 through 1963, American federalism is passing through what might be called the Age of Civil Rights. The effect of this experience

PAGE 9

6 -» / upon federalism in the United States can perhaps be glimpsed through a study of the efforts by the federal government to expand and to protect this one particular right, the right to vote, by the removal of racial restrictions upon that right. . . , . This paarticular right is chosen as a focal point because it can be plausibly maintained that access to the ballot is basic to the enjoyment of any other rights claimed under the Constitution. The right to vote provides the democratic means of redressing onerous restrictions of other rights, be they infringements upon freedom of speech, assembly, or any other rights. The possession of the franchise provides a means of removing those inequities which are often applied openly and brazenly to the disfranchised. Conclusions reached in this study may furnish some insight into what may be the general effect upon our federal system of the effort to cure other civil rights ills. Political disfranchisement came fourth in Myrdal'a "Rank Order of Discriminations. The frenetic activity of llMyrdal's ranking is as follows: "Rank 1. Highest in this order stands the bar against intermeurriage and sexual intercourse involving white women. Rank 2. Next cc»ne the several etiquettes and discriminations, which specifically concern behavior in personal relations. Rank 3. Thereafter follow the segregation and discrimination in the use of public facilities such as schools, churches and means of conveyance. Rank 4. Next comes political disfranchisement. Rank 5. Thereafter come discriminations in law courts, by the police, and by other public servcints. Rank 6. Finally come the discriminations in securing land, credit, jobs, or other means of earning a living and discriminations in public relief and other social activities." (An American Dilemma: Th? ^^^^<^ ?rgfr~ lem and Modern Democracy 60-61 [1944].)

PAGE 10

7 several of the Southern states with heavy Negro population to restrict Negro suffrage, and the resulting burgeoning of suffrage litigation point to the importance of the suffrage. Although the importance of voting is sometimes popularly deprecated , -^2 unreasonable and arbitrary restriction on it leaves those to whom it is denied little recourse for redress of grievances or expression of discontent but the streets. Action in the streets, as recent events have demonstrated, is an alternative that has been accepted with increasing frequency by American Negroes. Street demonstrations and attempts to pciralyze governmental functions by civil disobedience are productive of conflicting emotions within American society and are quite possibly as inimical to minorities as the evils they protest. The right to vote is chosen as an observation ground in studying present-day American federalism not only because it is in the deepest sense fundamental in a democratic system but additionally because it presents in a very dramatic way the confrontation of the "two sovereignties." Here on the one hand steuids the federal government committed, albeit tinevenly, to the promotion and protection of this right of ^^eats, "Stay Home and Don't Vote," The Saturday Evening Post , October 26, 1963, p. 8. ^3 "Unevenly" because the executive branch of the federal government and the federal judiciary, as will become apparent in the following chapters, have shown a commitment usually in advance of the Congress.

PAGE 11

8 the franchise. On the other hand stand various states vj^iich are firmly committed to defending from federal incursion what they consider a matter of state control, state prerogative, or "states' rights." After such clashes of this type neither contestant is ever quite the same again. States Rights and Responsibilities Today the term "states' rights" strikes a discordant note in many an ear. To many persons the term means secondclass citizenship. To such persons, "states' rights" means racism. "States' rights" means the "right" of the state to discriminate saxiong its citizens solely on the groxinds of color. "States' rights" means to provide inferior education to the Negro, the "right" of the state to dispense two kinds of justice conditioned on the color of the person's fitkin,^^ and the "right" of the state to frustrate attempts to register and vote.-*-^ Indeed, when such uses of "states' rights" have been re-enforced by over one hundred years of repeated experiences, the difficulty of entertaining any other notion of the meaning of "states* rights" is readily apparent. The tendency of those persons, viho so interpret the term, to look to the federal government for assistance, and •'•^See, in general, U. S. Commission on Civil Rights, 1961 Commission on Civil Rights Kevort. Book 2. Education (1961). ^^see, in general, U. S. Commission on Civil Rights, 1961 Commission on Civil Ricfhts Roioort, Book 5, Justice (1961) (Hereinafter cited as 1961 Rerxart on Justice ! . ^%ee, in general, U. S. Commission on Civil Rights, 961 Commission on Civil Rights ReTX>rt. Book 1, Voting (1961) Hereinafter cited as 1961 Report opt Voting] .

PAGE 12

9 to urge upon it cidditional powers for redress of grievances unanswered at the state and lyocal level, is little to be wondered at. Local government could not or would not rise to the occasion. There was no alternative. This is an ominous sign of malfunction in federalism lending weight, perhaps, to Professor Laski's conclusion. If, as Madison said, the affection of the people v/ill lie with the government which is best administered,^^ the federal government has been garnering the affection of a large group of persons upon the grounds of its atteic^ts at, and moderate successes in, administering the civil rights gucurantees of the Constitution. Unfortunately, as with most political terminology, there are no rules on the use of the term "states' rights." If there were, perhaps its use could be happily restricted to those for whom "rights" also imply responsibility. The vrords, however, flow with equal facility from the pens of all participants in the debate.^® *-^ The Federalist No, 46 (Madison) • example, the following from the platform of the Louisiana Citizens Councils: "We reiterate our beliefs in the rights of the sovereign states under the Constitution to manage their own internal affairs. We are keenly awsure that either communistic influences, vote grabbing politicians, or economic pressure groups stand behind every effort to invade States^ rights, and at the slightest whim or fancy attempt to force integration, burdensome taxation, ruinous inflation, or corrupt Federal decisions upon the people of this nation. Ana lire are aurare that resistance to these evil forces has been dormant too long." U. S. Commission on Civil Rights, Hearings Before the Unite d States Commission on Civil Rights. Hei7 Orleans. Lou isiana. SG,otoiriber 21 . 23. I960? May 5. 6. 1961. ^fc 531 .

PAGE 13

So far as the writer is concerned, any definition of "states' rights" should be qualified by the assumption that "states' rights" are inseparable from states' responsibilities. Tlie doctrine of "states' rights" cannot be used as a barrier to federal intervention when tliese state responsibilities have been forfeited to the federal government by state neglect and inaction. Tliis study proceeds on the assumption that "states' rights" and responsibilities are a legitimate concern of those who view the growth and expansion of the federal government and the "federal presence" with some misgivings; that these rights and responsibilities are a legitimate concern of those who prefer a federal form of government out o£ the conviction that such a government is more cooipatible with the American notion of individual freedom and " close -to -the governed" government. This study proceeds on the ftirther assumption that to use the concept of "states' rights" as a cloak for racial discrimination is a perversion of that concept. IgglHip^^oT^^p of the Western World Tl^e present Age of Civil Rights might just as well be called the Age of War. Two world wars, a "police action," a continuing "cold war" and various "little hot wars" have been the lot of the twentieth century in its first si^i decades. These events were, and axe, responsible for growth of federal power in response to the exigencies of the times. If

PAGE 14

11 the international situation of the twentieth century has meant increased federal goverianent activity and growth, increased dependence by business upon the federal government for profits, and increased dependence upon the federal government by the individual for employiaent, it also has meant that it is no longer possible for that government to pose as the world champion of democracy upon the international scene and at the same time deny the essentials of democracy to a minority — the Negro — at home. ' ' The post World War II years have been characterized by the rise of formerly dependent peoples, particuleurly non-vhite peoples, as colonialism fell away* These people have assumed control of their own destinies and now strive to bridge the gap between themselves and the more advanced countries of East and West. The implications of this independence and participation in world affairs is not lost upon colored minorities the world over, including those in the United States. The position of the United States on the international scene as leader of the western democracies has meant an unrelenting pressure upon its national government to insure that the reality of the democratic ideal within the country conforms to the "image" sought to be propagated abroad. The names of Little Rock, Oxford, and Birmingham cu:e eis familiar and well known abroad, especially among non -white groups, as 19Cook, The Warfare State 21-24, 162-202 (1962)

PAGE 15

12 the ubiquitous Coca-Cola. 20 Racial hate and violence burden the American national government as it works to demonstrate the efficacy and superiority of the democratic way to those nations vacillating between East and West. The fact that some of these nations seem to be taking the opposite path from that desired by the United States^l only serves to intensify the pressure upon this country to present a more compelling domestic practice in support of its own case. The fact that these nations axe often obviously hypocritical22 in their criticisms of the United States should only spur the United States to be less so. 20 "ig this Birmingham or Moscow?" asked the placards borne by African students in Moscow demonstrating over the death of a Ghanaian student, allegedly by foul play. The St. Petersburg Times , Dec. 12, 1963, p. 1^. 2lThe virulent critics of the United States Supreme Court might \fell be envious of the power play recently performed by Kwame Nkrumah of Ghana when he sacked Chief Justice Sir Arku Korsah for handing down the "wrong" decision. The Ghanaian Times supported this action, reportedly saying that "We cannot have a wig and gown CcUitata while Rome is burning. The nation cannot be bamboozled by the diabolic insinuations and aspersions of a confused and antagonistic judiciary." "Outrage At Law," Tijne . Dec. 20, 1963, pp. 21-22. 22Dr. Paul Cook, National Chairman, American Veterans Committee testified before a Senate sub-committee that while representing the American Veterans Committee and the United States Council of the World Veterans Federation in Copenhagen in May, 1963, he was addressed as follows by delegates from the United Arab Republic: "Why do you continue to discriminate against Negroes in the United States? Please let them know that they are welcome in the United Arsib Republic where they would face no discrimination on account of their race or their color." Dr. Cook did not ask the United Arab Republic delegates about their attitudes toward the Jewish people. Hearings on S.1117 a nd S. 1219 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciarv, 88th Cong. 1st Sess. 280 (1963).

PAGE 16

13 \ The Welfare State The exigencies of our time— war, constant preparedness for war, and leadership of the Western nations— have all, then, contributed in part to the growth of federal power, a growth in largest part unavoidable. Add to these exigencies the demands placed upon our federal government by the concept of the "service" or the "welfare" state and the result is admittedly a concentration of power v/ithout parallel in the history of democratic government. For good or ill the federal government is being called on to solve more and more of the afflictions and problems which beset the country and its populace. The federal government is called upon to retrain the unemployed, to provide health care for the old and the needy, to provide housing, and to "do something" in a myriad of situations* Failure by the states, for whatever reasons, to provide the expected relief in a particular area not only leaves it up to the federal government to take action in that particular area, but encourages the petitioners to submit their next request to the federal government initially. This poses an unremitting pressure for federal expansion, although it is seldcnn called for in precisely those terms. It is to the national government that the people look more and more for alleviation of their multitude of ills and for a guarantee of the "good life."

PAGE 17

14 In the midst of the growth of the federal government , in size and ftinctions, the states, in particulair the Southern states where most is heard alxjut "states' rights," have done little to enhance the standing of the concept of "states* ^ rights." These states exhibit, rather, an anbivalent attitude toward the concept v/hich gains it few friends outside Dixie. There is a venerable tradition in the South on the part of state officials to assume a position of flexibility in the matter of defending the concept of "states' rights," Trds flexibility allows a conspicuous silence « or at beat a sotto voce protest, in those instances v^ere the federal government aurrives bearing federal largess. The states in many instances actually demand federal e:unt of control at lesust, is generally assumed to follow the federal dollar this does not deter state officials from besieging Washington with requests for funds for roads, heurbors, ceinals, ad infinitum. Vigorous Southern e:iponents of "states' rights" see no incompatibility between seeking this type of federal "intervention" and their

PAGE 18

15 much professed attachment to the cxsncept of "states' rights" when race is the issue. Everyone likes his serving of "pork," with any side dishes that the chef can be persuaded to serve along v/ith it. As Senator McNamara put it: "In most instances the states' rights doctrine stops at the federal pay window. "23 . To point out the increasing dependence of the states on the federal government for financial aid, to say that some degree of control will inevitably follow the federal dollcu:, is not to say that federal funds can never be really beneficial. Federal money may well be the lesser evil in some cases, particulsirly where states can't, or won't, act. The argument is, simply, that federal expansion is federal expansion whether it comes in the guise of aid to education, broad ezcpanses of new high\irays, medical care to the aged and indigent, or the prohibition of interstate shipment of fire arras. Federal expansion, then, has been actively sought by the states themselves. In this context "states' rights" means, for example, the "right" of a state to get its proper share of federal money for highway construction, its rightful share for reclamation work, and so forth. Even the most extreme "states' righter" does not demand for his state the "right" of total financial responsibility in building its own highways, in 23McNamara, "The Challenge of a Federal -State Partnership," 34 H.Y.U.L. Rev . 996, 999 (li^59) .

PAGE 19

16 taking care of its own streams and rivers, or in constructing its own hospitals and medical schools. One might entertain doubts as to the actual bases of the opposition to federal aid to education maintained by various state figures in the South. It is quite possible that this opposition stems primarily from a fear that the federal government will use this aid as a tool to speed up integration of the schools. Pear of integration vjould seem to be a plausible eis^lanation for this opposition to federal aid to education in view of the general state affinity for federal funds. This fear is as plausible an explanation for the opposition as saying that tlie federal government should leave the inadequacies of the local scIkxjIs to the solution of the local tax-t>edeviled citizens. In any event it would be interesting to observe the response, even perhaps in some of the most obdurate sections of the South , if the citizens were given the choice on their ballots of a "little more" integration along with their fed-*^ eral aid or a "little larger increase" in the local school millage and no federal aid. This hypothetical choice would of course be conditioned on the citizens ' recognition of the shortcomings of their present scItooIs and the necessity of improving them. In such a case it might take extreme dedication to the principles of "states' rights" to resist passing this financial burden along to the federal government. If voices raised in defense of "states' rights" are in many instances muted by the rattle of federal coin, they

PAGE 20

17 are of stentorian character in those instances where race is involved. Wlien the subject o£ race axid racial discrimination arise, then one may see some of the roost liberal beneficiaries of federal botinty become ardent defenders of "states' rights." Wlien race, not federal "pork/* is the subject of attention, it is then that the tenth an»ndment trumpets one clear call to the "states' rights" champions and a chorus of "states' rights" voices hastily assenubles chanting dour forebodings as the principle actors come to the fore and recite their classical lines. Assailed by these harmonies the audi«ice may now pause, if it pauses at all, to reflect upon their form of government. Some of the audience may even imagine they detect discordant notes. On the other hand, the audience may be entranced by the symmetry of the perfojrmance and find the elegant utterances of the dramatis personae running through their minds like the words to a popular song, with as little xaeeming. More damaging for federalism, however, is the possibility that the phrases of the actors and chorus will end up serving as a particolored linguistic cloak under which to conceal racial prejudice and a scatiewhat inconstant attachment to principles embodied in the Constitution. At some point in the performance by our "states' rights" actors and chorus the word "responsibility" will roll from their tongues. Wg will be told, for example, that education is the responsibility of the state and that if

PAGE 21

18 federal aid is to be accepted, it must be given without any conditions or strings attached. We will hear too that regu* lation of the voting franchise is the constitutional responsibility of the state. Any federal interference with the way a state conducts its elections and grants the franchise is an outrageous rape of the doctrine of "states' rights." It matters not that "states' rights" may have been turned into a creature of easy virtue by the very ones who chaanpion the doctrine now. The chomis swells. A paean to the Founding Fathers is recited. The performance continues. This performance, for all its classical beauty, should not blind us to the fact that there are different kinds of responsibility. Education may x»ell be the reaponsibility of the state and local authorities but it is also the responsibility of the state to offer equal opportunity to this education to all of its citizens. It cannot arbitrarily deny access to the best in way of educational facilities which it hais to offer simply on the grounds of color. Responsibility is a two-sided coin. Failxire or refusal to recognize this fact led to one of the most momentous and bitterly criticized decisions in the history of the United States Supreme Court. ^4 it is a decision whose ultimate effect upon the federal system of government as known in tbm United States can even now, nine yeeurs later, only be estimated. As the states resist the spreading negation of , ^"^ecsmv. ^Qg^ 9^ savicaUw 9^ tpp?}^;^* 347 u.s. 433 (1954).

PAGE 22

19 "separate but equal" and as they shirk their responsibility, the more the federal government will be called upon for support by those dedicated to the abolishment of "separate but equal." Tlie federal government vfill respond to the requests by increase of its power to act in the situations confronting it. ; / These r^arks concerning state responsibility and education apply equally to the franchise vohich is the main concern here. The Constitution leaves to the states vast control over the question of who shall vote in a peurticular state. 25 "jhe thesis of this study is simply stated: State U8e# misuse, abuse or arbitrary use of power to set voting qualifications has led in the past and is presently leading rapidly to increeised federal intrusion into the field of the franchise, a field once deemed the almost exclusive preserve of the states; this expansion of federal activity is of immense consequence to American federalism. The controversy over opposed state and national power in the area of suffrage qualifications is one more example in a long history of controversy in American federalism, but few such controversies have touched so fundamentally on problems more demanding of solution. If federalism be a transient form of government 2%or the power to set qualifications see U. S. Const. art. I, sec. 2 and U. S. Cpnst . amend. XVII. These powers are, of course, restricted by the negative commands of the fifteenth, nineteenth, and twenty-fourth amendments.

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20 on the way to iinity,'^^ the particular solution of the suffrage problem in the United States will be an important factor in the rate of transition. > .v ; r . • All sorts of pressures are affecting and will continue to affect American federalism. War, welfare statism, and Western leadership are examples. ; . But above all today, there is another source of pressure which affects American federalism. This source is unquestionably the most dramatic and has very aptly been labeled the "Second American Revolution" or the "Negro Revolution." . The Negro has been seeking equality of treatment since his arrival in the United States. It is in the present decade / hov/ever, that the guest for equality, building up pressure over the long, frustrating years, burst upon the A:nerican scene with a fervor, a dedication and a singleness of purpose which amazed Americans both North and South, and quite possibly amazed many colored Americans as v;ell as white ones. "Freedom now," the orators cry. "Jim Crow is dead" and "Segregation is finished" proclaim the placards carried by young and old. "Sit-ins," "wade-ins," "pray-ins," et cetera, became common occurrences across the land in tlie early 1960 's, both North and South, as the guest for equality spread and intensified. Street demonstrations, at times unruly and 26a description attributed to Lord Bryce by Edward McWliinney in McWliinney, Comparative Federalism : States Rights and National Power 4 (1962) .

PAGE 24

21 destructive, but always symptomatic of the disease of secondclass citizenship became standard vehicles for protests and demands. Demands are made for equality of job opportvmity, equality of education, equality of access to public accommodations, and so forth. In short, the demand is to delete the accident of color, now and without further delay, from the vicissitudes a man must face in his attempt to realize his own personal American dream, whatever it may be. Of paramount importance in the realization of this dream is the acquisition of an asset which may well underlie or guarzmtee the equality which is so fervently sought for. This asset is the franchise, the right to vote, A voteless mem is a voiceless man and a voiceless man is not heard in the chambers of the legislatures. Silence on the political stage is never golden. The struggle of the Negro to secure the franchise has been a long and frustrating one. With the passage of the Civil Rights Act of 195727 and the Civil Rights Act of 1960^® the suffrage front has been one of intense activity^^ — a front of gain and a front of continued frustration. This 27Act of Sept. 9, 1957, 71 Stat . 634. 28Act of May 6, 1960, 74 Stat . 86. 29The front is a limited one, however. The Civil Rights Commission reported that discriminatory disfranchisement of Negroes did not exist in forty-two of the states but was confined to about one hundred coixnties in the states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. 1961 Repprt op Votj.na 133. It is the nature of the right denied rather than the size of the area within which that right is denied that is of foremost importance.

PAGE 25

22 struggle for the franchise in the period of main concern here, 1957-1963, must be considered in the light of the pressures on federalism previously described and the total consequences for federalism. These pressures and the strug gle for the franchise are inextricably intertwined.

PAGE 26

CHAPTER II THE FEDERAL TIDE Tlie Flow Stage Since the end of the Civil War the federal government's participation in the Negro's quest for equality, in general/ and access to the suffrage, specifically, has flowed, then ebbed, and at present is at full flow in a manner which surpasses the highwater marks of the past.*'* A major part of the initial flow was represented, of course, by the three amendnents->«^he thirteenth, the fourteenth, eind the f ifteenth— ^ich were added to the Constitution in a period of less than five years after the conclusion of the Civil War. It would not be until the yeaur 1964~a period of almost ninety-four years from ratification of the fifteenth amendment --that smother amendment aimed at facilitating access to the suffrage, primarily for Negroes, would be added to the Constitution. In Pebruaury of that year President Johnson added his signature to the ratified ^For an excellent condensed version of the Negro's quest for full citizenship during the period under discussion, see U. S. Commission on Civil Rights, Freedom to the Free : 1863 Century of Emancipation 1963 (1963) . 23

PAGE 27

24 twenty-fourth amendment which eliminated the poll tax in federal elections.^ The other component of this federal involvement with the Negro was the group of civil rights statutes which were passed in the Reconstruction period. There were seven of these statutes in allj (1) the Act of April 9, 1866,3 Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication"; (2) the Act of May 31, 1870,'* "An Act to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other Purposes"; (3) the Act of February 28, 1871,^ "An Act to amend an Act approved May thirty-one, eighteen hundred and seventy, entitled 'An Act to enforce the Rights of Citizens of the United States to vote in the several States of this Union, and for other ^The importance of this latest amendment is debatable. It applies only to voting for federal office. At the time of its pcissage only five states required payment of a poll tax as a requisite to qualification for voting. Furthermore, in view of the many discriminatory practices available, (See 1961 Report on Voting 48-72) , the elimination of the poll tax would not seem to pose serious obstacles to those bent on frustrating the attempts of Negroes to register. The amendment will, of course, eliminate such situations as were revealed in United States v, Doaan . 314 F. 2d 767 (5th Cir, 1963) , where Negroes attempting to pay the tax in Tallahatchie County, Mississippi, vr&re told that they would have "to see" the sheriff first. 3l4 §iat. 27. 4 16 Stat . 140. He Stat . 433.

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25 Purposes'"; (4) the Act of April 20, 1871,® "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States and for other Purposes"? (5) the Act of March 1, 1875,^ "An Act to protect all citizens in their civil and legal rights"; (6) the Act of May 21, 1866,^ "An Act to prevent and punish Kidnapping"; (7) the Act of March 2, 1867,^ "An Act to abolish and forever prohibit the System of Peonage in the Territory of New Mexico and other parts of the United States." A mere perusal of the titles of these statutes gives an indication of the broad areas which these measures were intended to encompass* The doctrine of "states' rights" had risen to its zenith in the atten^ted withdrawal of the Southern states from the Union; the doctrine now approached a temporary nadir. The onus of being considered a threat to the freedom of the individual passed from the shoulders of the federal government to the shoulders of state governments and private citizens* This onus heis remained in great measure on the states ever since, particuleirly in regard to racial discrimination. The federal government after the Civil War was called upon to afford protections which the states could not or ®17 Stat. 13. 7i8 Stat. 355. ^14 Stat . 50. ^14 Stat . 546.

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26 If would not provide; the federal response was a series of civil rights acts. Responsibility which was directly denied or sloughed off by the states involved was assumed by the federal government. The Negro's attachment to the federal government which showed such solicitude for his welfare has continued through the years. One seldom, if ever, meets a Negro whose political interests center around "states' rights. "^0 The extent of this governmental solicitude can perhaps be better understood by a brief consideration of several of these broader post Civil Wcir acts. The Act of April 9, 1866, provided, in paurt, that all persons bom in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude except as punishment for a crime whereof the party shall have been duly convicted, shall have the same right, in every state and Territory in the United States, to make and enforce contracts, to sue, be peirties, and give evidence, to inherit, purchase, lease, sell, liold convey real and personal property, and to full and equal benefit of all la»7S and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be svibject to like punishments, pains, penalties, and to none other, any law, statute, ordinance, regulation, or custCMH, to the contrary notwithstanding. •'•^Probably it is of no great significance, but the word "national" is commonly found in the names of Negro organizations. For exeaaple: The National Association for The Advancement of Colored People, The National Council of Negro Wcsaen, The National Insurance Organization, The National Association of Real Estate Brokers, Inc., and so forth. Ill4 Stat . 27.

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27 Several eairly federal court cases accepted the constitutionality of the 1866 act. ^2 The Act of April 20, 1871, sometimes knovm as the Ku Klux Klan Act, provided in part that any person \ftio, under color of any law, statute or ordinance, regulation, custom, or usage of any State, shall subject, or cause to be stibjected, any person . : . within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, ; shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in ciny action at law, suit in equity, or other proper proceeding for redress; such proceedings to be prosecuted in the several district or circuit courts of the United States. . . .^^ „ The Act of March 1, 1875,-^'* is of special interest due to the controversy which has ensued over the inclusion of a public accommodations section in the civil rights measure promoted by the late President Kennedy and supported by President Johnson. •'^ The 1875 statute's first section declared: ^^United States v. Rhodes , 27 Fed. Cas. 785 (No. 16, 151) (CCD. Ky. 1866); In Re Turner. 24 Fed. Cas. 337 (No. 14, 247) (CC^D* m, 1867)\ 13l7 gifeat. 13. 3.418 Stat . 335. ISsection 202 of the draft submitted to Congress by President Kennedy, June 19, 1963, provided: "(a) All persons shall be entitled, without discrimination or segregation on account of race, color, religion, or national origin, to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and acconsnodations of the following public establishments: (1) any hotel, motel, or other public place engaged in furnishing lodging to transient guests, including guests

PAGE 31

28 from other States or traveling in interstate com: . merce; (2) any motion picture house, theater, sports arena, stadium, exhibition hall, or other public place of amusement or entertainment which customarily presents motion pictures, performing groups, athletic teams, exhibitions, or other sources of entertainment which move in interstate commerce; and (3) any retail shop, depcurtment store, market, drug store, gasoline station, or other public place which keeps goods for sale, any restaurant, lunch room, liinch counter, soda fountain, or other public place engaged in selling food for consumption on the premises, and any other establishment where goods, services, facilities, privileges, advantages, or accommodations are held out to the public for sale, use, rent, or hire, if— (i) the goods, services, facilities, privileges, advantages, or accommodations offered by any such place or establishment are provided to a substantial degree to interstate travelers, (ii) a substantial portion of any goods held out to the public by cuiy such place or establishment for sale, use, rent, or hire has moved in interstate commerce, (iii) the activities or operations of such place or establishment other^wise substantially affect interstate travel or the interstate movement of goods in commerce, or (iv) such place or establishment is an integral part of an establishment included under this subsection. For the purpose of this subsection, the term "integral part" means physically located on the praises and owned, operated, or controlled, directly or indirectly, by or for the benefit of, or leased from the persons or business entitites which own, operate, or control an establishment. (b) The provisions of this title shall not apply to a bona fide private club or other establishment not open to the pxiblic, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (a)." H. R. Doc. Ho. 124 . 88th Cong., 1st Sess. 17-18 (1963) [Hereinafter cited as H. R. Doc. No. 124 (1963)]. This attempt to open public accommodations to Negroes is based on the pov^erful interstate commerce clause whereas the 1875 act was based on the fourteenth amendment. This is, of course, a major ground of objection to the public accommodations section of the Kennedy bill. Basing public accommodations on the interstate commerce clause will vastly broaden the sphere of federal interest in, and regulation of, business. Businesses once having been classified as being engaged in interstate commerce for public -accommodations purposes, can most likely expect other forms of interstate commerce regulation for other purposes.

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^ All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accoiranodations , advantages, facilities, and privileges of inns, public conveyauices on land and water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude, 1° This section, and section 2 which provided penalties for the violation of section 1, were declared xinconstitutional in the Civil Rights Cases eight years later. ^''^ ' These two statutes just discussed serve to give some idea of the expansion of the federal government's activity in the Negro's quest for equality. It is with the federal government's efforts in the suffrage field, however, with which we are primarily concerned here. As previously pointed out, there were two post Civil War measures which dealt specifically with the right to vote. The first statute, the Act of May 31, 1870,^® went to great lengths in its attempt to facilitate suffrage access for the Negro. First of all, section 1 of the act declared that all citizens of the United States otherwise qualified by law to vote "at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision" should be entitled to vote at all such elections without 16l8 Stat . 335. 17109 U. S . 3 (1883) . 18i6 Stat . 140.

PAGE 33

30 distinctions of race.^^ This was in the main a positive enIcirgement upon the recently ratified fifteenth amendment Which was negative in character. The act went on to provide in section 2, however, that if there were any act which was required as a prerequisite or qualification for voting in any state, the officials so charged with the administration of these requirements were required to give "all citizens of the United States the same and equal opportunity to perform such prerec[uisite , and to become qualified to vote without distinction of race, color « or previous condition of servitude, "^^ Failure to give effect to these strictures made the official civilly liable to the person aggrieved to the extent of 500 dollars for each offense. In addition, such offenses were made misdemeanors and the offending party, if found guilty, would b# fined not less than 500 dollars or imprisoned for not less than one month cind not more than one year, or both, at the court's discretion. Section 3 provided that an offer to perform any act made by law a requirement or prerequisite to voting was equivalent to the performance of the act, where the per. formance was wrongfully denied by the official executing the law. 21 20j^. . 21j^.

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A penalty similar to that of section 2 was provided in section 3 for any person who by force, bribery threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid ... .22 This peorticular provision of the Act of May 31, 1870, as well as the provisions of section 3 \f&xe declared unconstitutional in United States v. Reese . 2 3 The Coiirt concluded that sections 3 and 4 were beyond the limit of the fifteenth amendment and therefore unauthorized because they were not confined in theix operation to unlawful discrimination on account of race, color, etcetera. "The power of Congress," said the Court, "to legislate at all upon the subject of voting at state elections rests upon this [fifteenth] amendment" and . . . . • = it has not been contended, nor can it be, that the amendment confers authority to impose penalties for ' every wrongful refusal to receive the vote of a qualified elector at State elections. It is only when the wrongful refusal at such elections is because of race, color, or previous condition of servitude, that Congress can interfere, euid provide for its punishment. 24 The Court in Reese went on to note that under section 3 the elector was required only to state in his affidavit '^^l^. at 141. 2392 U. S. (2 Otto) 214 (1875). 24 j^, at 218.

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32 that he had been wrongfully prevented from qualifying. Section 3 contained no words limiting its operation to wrongful acts on account of race, color, eind so forth. Similarly, the Court found that section 4 of the act contained "no words of limitation, or reference even, that cem be construed as manifesting any intentions to confine its provisions to the terms of the Fifteenth Amendment. "25 , We are [said the Court], therefore, directly called upon to decide whether a penal statute enacted by Congress within its limited powers, which is in general language broad enough to cover wrongful acts without as v/ell as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate , ... only on that which Congress may rightfully prohibit and piinish . , , whether we can introduce . words of limitation into a penal statute so as to make it specific, when as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully ; detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative depeirtinent of the government ... .26 The judiciary, the Court concluded, was not in the business of law-making. "To limit this statute in the manner asked for," said Chief Justice Waite, "would be to make a new law, not to enforce an old one. This is no part of our duty. "27 ^^l^. at 200 26^. at 221 27ibid.

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33 Another significant section of the Act of May 31, 1870, section 5, met the same fate of being declared iinconstitutional at the hands of the Court in Jajues v. Bo\vman .^^ This portion of the act had provided that if any person shall prevent, hinder, control, or intimidate, any person from exercising or in exercising the right of suffrage, to whom the right of •suffrage is secured or guaranteed by the fifteenth ; amendment to the Constitution of the United States, by means of bribery, threats, or threats of depriving such person of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family, such person so offending shall be deemed guilty of a misdemeemor and shall, on conviction thereof, be fined not less than five hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. 29 The indictment in James v. Bowman charged in stibstance that certain "men of African descent, colored men, negroes, and not white xaen" had, "by means of bribery," been prevented from voting in a congressional election in Kentucky held in November of 1898.30 The Court noted, however, that the indictment charged neither the State of Kentucky nor any of its officers with any wrong. Rather, the act cc«aplained of was performed by an individual on his own initiative and, said Justice Brewer, "a statute which purports to punish purely individual action cannot be sustained as an appropriate

PAGE 37

34 exercise of the power conferred by the Fifteenth Amendment upon Congress. "31 Furthermore, the indictment did not chcirge that the bribery was on account of race, color, or previous condition of servitude. "They were not bribed," the Court pointed out, "because they were colored men, but because they were voters. "-^^ In answer to the contention that Congress had ample power in regard to election of Representatives to sustain the statute in question, and the indictment, the Court ruled that Congress had not by section 5 acted in the exercise of such power. Section 5 was not legislation in respect to elections of Federal officers, but is levelled at all elections, state or Federal, and it does not purport to punish bribery of any voter , but simply those named in the Fifteenth Amendment in respect to all elections, and not in pursuance of the general control by . Congress over particular elections. -^^ The Court acknowledged that it was "fully sensible of the great wrong which results from bribery at elections" and that it did not "question the power of Congress to punish such offenses when cOTimitted in respect to the election of federal officials."*^ However, the Court added that Congress has no right to punish bribery at all elections. The limits of its power are in respect to elections in which the nation is directly 31l^. at 129. 32^^. at 139. 33 ibid . 343^. at 142.

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35 interested or in which scane mandate of the National Constitution is disobeyed, and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms and intiiese terms beyond the power of Congress, and change it to fix [sic! some particular transaction which Congress might have legislated for if it had seen fit.-^^ The fifth section of the act had also received adverse treatment earlier at the hands of lower federal courts. In a case^^ arising in Indiana, one Thomas Wilson, a Negro, charged that he had been intimidated with threats of violence and prevented frc»n exercising his right of suffrage in township elections in Addison Township, Shelby County, Indiana. In disposing of the case, the district court said: It is not an offense against the laws of the United States to prevent a citizen, white or black, from voting at a state election by violence or otherwise. A further element is necessary in such a case to subject the offender to federal jurisdiction and punishment. The violence or other act which is resorted to must be done on account of the voter's race, etc. 3/ The court then went on to addi • The federal government can exercise only such powers as have been conferred upon it, and however reprehensible the acts described in the indictment may be, unless they are done on account of race, etc. and under authority of legislation v/hich is prohibited by the fifteenth amendment, it is the exclusive province of the state to punish the offenders. 35ibid. ^ ^nited States v. Amsden , 6 Fed. 819 (D. Ind. 1881) . , , 3'^Id. at 823. (Emphasis added.) 38j^. at 824,

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36 Two years before the Supreme Court decision in Ja y aes, v mPUUX* * circuit court of appeals had also levelled its sights on section 5.-^^ The case arose in Kentucky and involved not actual violence but the bribing of Negroes to stay away frcxa the polls, for which absence they were given the sum of five dollars apiece. Here the court continued the theme set forth in the jtoisden case, saying that the vice of the fifth section, now section 5507 of the Revised Statutes, is precisely the vice of the third and fourth sections of the same act. It is not limited in its operation to Conaressiojaal or presidential elections, nor to offenses grounded upon race, color, or previous condition of servitude. Reading the section in connection with the other parts of the act from which it was taken, it is too obvious for discussion that Congress intended that it should have operation in all elections, and should not be limited to obstructions to the free exercise of the elective franchise based upon race, etc. Indeed, this is the very meaning attached to the act by the court below. The indictment in the case at bar did not aver the bribery to have been because of color, etc . , and , if it had , it would have added an element not named in the statute .... Without considering the further question as to whether the povrer of Congress to legislate in respect to purely state elections is not also limited to prohibitions of discrimination by the United States, and by the states and their officers or others, claiming to act under color of lav/s within the prohibition of the amendment, we are content to hold that section 5507 is void, as including within its operation offenses not grounded upon race, color, or previous condition of servitude, and therefore in excess of the power of Congress in respect of state elections? its powers in respect to such elections being dependent upon the fifteenth amendment alone. ^0 ^ ^aci^Qv V. United States, 107 Fed. 114 (6th Cir. 1901). "^Qld. at 121. (Emphcusis added.)

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37 Section 6 of the 1870 act was also limited in effectiveness by judicial decision. This section provided that if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to in. jure, oppress, threaten, or intimidate amy citisen with intent to prevent or hinder his free exercise i and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the ;. United States, or because of his having exercised the same, such persons shall be held guilty of felony, . and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,— the fine not to e::ceed five thouseind dollars, and the imprisonment not to exceed ten years, --and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, . ; or trust created by the Constitution or laws of the United States. 41 In United States v. Cruikshank^ ^^ certain counts of the indictment were based upon section 6, charging that the defendants had intended to hinder and prevent some Negroes from voting. Chief Justice Waite rendered the decision holding that ... n inasmuch, therefore, as it does not appear: in these counts that the iptent of the defendants was to prevent these parties from eicercising their right to vote on account of their race , etc . , it does not appecu: that it weis their intent to interfere with any right granted or secured by the Constitution or laws of the United States. We may suspect that race was the cause of hostility, but it is not so averred. This is a material description of the Biibstance of the offense, and cannot be supplied by implication. 4 3 41l6 Stat . 141. 4292 U. S. (2 Otto) 545 (1875). 43jd. at 556. (Emphasis added.) I

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38 Later, after the turn of the century, section 6 was still meeting with judicial disapproval. "This section," said a federal circuit court in 1903, has for its object the punishment of aJLl persona v;ho conspire to prevent the full enjoyment of any right or privilege secured by the Constitution or laws of Congress, without regard to whether the persons so conspiring are private individuals or Qf^4.cials exercising the power of the United States or of a state. Neither does it draw any distinction between a conspiracy directed against the exercises of the right of suffrage based upon race or color, and a conspiracy not so grounded .... That it is not within the province of the courts to so limit an act by judicial construction as to make it operate only on that which Congress may rightfully prohibit and punish is now a well-settled principle of constitutional interpretation.'*'* The court went on to say that if freedom from discrimination at a state election was a "right or privilege" secured by the Constitution or laws of the United States, it was one which originated solely in the fifteenth amendment. This "right" could be enforced only by congressional legislation aimed at state action in some form or other which deprived otherwise qualified voters of the franchise because of race, color, or previous condition of servitude. "This," the cotirt said, "was the limit of the power of Congress under the article. "45 The cotirt found that section 6, at that date incorporated into the Revised Statutes of 1875 as section 5508, 44 Karem v. United States. 121 Fed. 250 (6th Cir. 1903) . (Emphasis added.) ^^M.' at 261

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39 was not so limited and therefore not "appropriate legislation for the enforcement of the fifteenth amendment. "^^ It did not, however, declare the section in question unconstitutional because "the warrant for the section is fotind in other provisions of the Constitution."'*^ These other provisions were not specified. . , , , , The foregoing sections do not exhaust the provisions of the federal government's Act of May 31, 1870, but axe the highlights of that act and outline the government's first statutory entry into the suffrage field in the Reconstruction period. Together with the broad civil rights measures previously mentioned they furnish evidence of the federal government's commitment in this period— a cananitment not equaled again until the decades of the 1950 s and 1960 's. As in our own time, the commitment of the federal government v/as somewhat uneven. In the immediate period after the Civil War it was Congress which surged forwaurd in the civil rights field. The federal judiciary, in what v/ill be seen as a direct contrast to its activities today, severely limited the effect of the new measures by its narrow interpretation of them. The cases cited above in connection with the Act of May 31, 1870, constitute a demonstration of this judicial behavior toward the civil rights measures.

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40 Ebb Tide The congressional attachment to the aspirations of the Negro was destined to slow after the first flush of the Reconstruction period was over and the country moved into a period of rapid industrial growth and unrestrained capitalism* This slower pace pey;haps was an accurate reflection of the mood of the country at large. There vrere more important things to do than to worry about the Negro and his problems. He could be left to future generations — and was. Bib more appropriate example of the congressional temper could per]hiaps be given than the repeal of much of the civil rights legislation by congressional act. A particular victim of the congressional action at this time was the Act of February 28, 1871, '^^ the second of the two post Civil War civil rights statutes which dealt specifically ^ with voting . This act had gone to great lengths to prevent fraud in elections for the Congress of the United States. The principle feature of the act v/as a provision for the appointaaent of election supervisors whenever any two inhabitants'*^ in any town or city of upwards of twenty thousand inhabitants made a written request to a judge of the circuit court of the United States making known their desire to have the registration or election, or both, scrutinized and guarded. ^^16 Stat . 433. ^^his requirement \iras amended in 1872 to read "ten citizens ... of good standing." Act of June 10, 1872, 17 Stat. 348.

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41 The circuit judge was authorized to appoint two residents of the city involved as supervisors, residents who were "of differing political parties, and able to read and write the English language. The United States marshall in the district Wcis authorized on application of two citizens of the city or town, to appoint special deputy marshalls to assist the supervisors. The duties of these election supervisors were quite extensive. 5^16 Stat . 433. bisection 4 provided, in part, that the supervisors were "authorized and required, to attend at all times and places fixed for the registration of voters, who, being registered, would be entitled to vote for a representative or delegate in Congress, and to challenge any person offering to register; to attend at all times and places when the names of registered voters may be marked for challenge, and to cause such names registered as they shall deeaax proper to be so marked . . . . " Section 5 set forth that supervisors, in addition, were "authorized and required, to attend at all times and places for holding elections of representatives or delegates in Congress, and for counting the votes cast at said elections; to challenge cuiy vote offered by cUiy person whose legal qualifications the supervisors, or either of them shall doubt; to be and remain where the ballot-boxes are kept at all times , after the polls aore open until each and every vote cast at said time and place shall be counted, the canvass of all votes polled be wholly completed, and the proper and requisites certificates or returns made, whether said certificates or returns be required under any law of the United States, or any State, territorial, or municipal law, and to personally inspect and scrutinize, from time to time, ; and at all times, on the day of election, the manner in which the poll-books, registry lists, and tallies or checkbooks, whether the same required by any law of the United States, or any State, territorial, or municipal law are kept; and to the end that each candidate for office of representative or delegate

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42 Section 10 of the act provided penalties in that anyone interfering with, or hindering the election supervisors in the performance of their duties, would be guilty of a misdemeanor and could be instantly arrested without process. Conviction could be punished by up to two years imprisonment or a fine of not more than 3,000 dollars, or both, plus the costs of the prosecution. Section 16 of the act provided for the removal to a United States circuit court of any suit, civil or criminal, commenced in a state court, for any act done under color of the statute. There are only two reported cases involving the system of election supervisors created by the Act of Februeiry 28, 1871. In the first. In re jSupervisors of Election, the supervisor plan was held to be constitutional. In Ex Pcurte Siebold , the second case, the defendants again challenged in Congress shall obtain the benefit of every vote for him cast, the said supervisors of election are, and each of them is, hereby required ... to personally scrutinize, count and canvass each and every ballot in their or his election district or voting precinct cast, whatever may be the endorsement on said ballot, or in whatever box it may have been placed or found . . . . " Section 6 authorized the supervisors to "take, occupy, and remain in such position or positions, from time to time, whether before or behind the ballot boxes, as will, in their judgment, best enable them or him to see each person offering himself for registration or offering to vote, and as will best conduce to their or his scrutinizing the manner in which the registration or voting is being conducted . . . . " 16 Stat . 434-5. ^^23 Fed. Cas. 430 (No. 13,628) (C.C.S.D. Ohio 1878). 100 U. S. 371 (1880)

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43 f the validity of the act. These defendants were state -appointed election judges in Baltimore who had been found stuffing the ballot boxes in an election in which a United States Congressman Wcus being elected as well as local and state officers. Their convictions were upheld by the Supreme Court. The careful language of the statute in centering the system of supervisors on elections in which meitibers of Congress were being elected preserved the statute from the fate at the hands of the courts which befell, for example, the loosely worded sections of the Act of May 31, 1870.^4 . This language, of course, offered no barrier to Congress. Towards the close of the nineteenth century the civil rights program of the Reconstruction period was abandoned, and the prevalent mood of Congress was set forth in a House report which stated: Let every trace of the reconstruction measures be wiped from the statute books; let the states of this great Union understand that the elections are in their own hands, and if there is to be fraud, coercion, or force used they will be the first to feel it. Responding to a universal sentiment throughout the country for greater purity in elections many of our States have enacted laws to protect the voter and to purify the ballot box. These under the guidance of State officers have worked efficiently, satisfactorily, and beneficently; and if these Federal statutes are repealed ^'^le Stat . 140. In United States v. Reese. 92 U. S. (2 Otto) 214, at 220, the Court said, for example: "If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such [racial] discrimination, the language of these sections would be broad enough for that purpose."

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that sentiment will receive an impetus which, if >r the cause still exists, will carry such enactments in every state of the Union. In fact, as early as 1877, a Democratic Congress had passed a measure which repealed much of the civil rights legislation but the act was vetoed by President Hayes. Throughout this period the executive branch was content to let Congress lead the way in regard to civil rights and the suffrage. Legislative and executive statutory concern with the question of civil rights would not again be manifested in statute until the Civil Rights Act of 1957^^ — eighty-two years after the Act of March 1, 1875,^7 the last of the post Civil War civil rights statutes. ?' Congress did not wipe every trace of the Reconstruction measures from the statute books but it did make considerable headway in that direction. In February of 1894, President Cleveland signed into law a measure entitled "An Act to repeal all statutes relating to supervisors of elections and special deputy marshalls, and for other purposes. "^^ This act repealed the rather elaborate supervisor system set up in tlie Act of February 28, 1871, and in addition, repealed sections 2, 3, and 4 of the Act of May 31, 187 0.^^ Rep. No. 18, 53d Cong., 1st Sess. 7 (1894). Se^ct of September 9, 1957, 71 Stat . 634, 57l8 Stat . 335. S^Act of February 8, 1894, 28 Stat . 36. , 59see pp. 30-31 S3iB££L'

PAGE 48

By the turn of the century, then, the federal government's concern with Negro suffrage was well along into its ebb period. Court decisions restricted the effectiveness of the program and the enthusiasm of Congress waned rapidly as time passed. ..... — The years intervening between the repeal measure of 1894 and the Civil Rights Act of 1957 can not, however, be considered a period of complete stagnation in the field of civil rights in general and the suffrage area in peirticular. Some very notable advances were made on the suffrage front during this sixty-three year time span but, significantly, these advances were not the result of congressional activity. It is in the federal courts that actions were brought by private persons during this period against many types of alleged state discriminatory practices based in major part on race? and it is in the federal courts that many such state actions discriminating in the practice of the suffrage on the basis of color were invalidated. The earlier federal cases of the period frcan 1866 to around the turn of the century, discussed in the previous section of this chapter, had without exception been brought under federal Reconstruction statutes. They did not involve an attack on state statutes allegedly discriminatory on a racial basis. And it has been shown that the federal courts denied the power of Congress to legislate on the basis of

PAGE 49

the fifteenth amendment vdiere racial discrimination was not a factor. These earlier cases did not even involve, in most instances, alleged discriminatory action by a person or persons cleeirly serving a state function. But at the turn of the century, many southern states began actively seeking ways to disfrcinchise the Negro. State statutes and state constitutioneLL provisions having the effeet of keeping the Negro from the polls were enacted. It was in this new context that the federal courts now found themselves thrust willy-«illy into a position of leadership where private litigants invoked the federal constitutional provisions of the fourteenth and fifteenth amendments (for the most part) against alleged state suffrage discrimination. Zn 1910 the National Association for the Advancement of Colored People was organized as a permanent body. Shortly thereafter, in 1915, the organization appeared for the first time before the Supreme Court in the case of Guinn v. United States . decl2u:ing, in the words of Coimsel Moor field Storey, that "all discriminations respecting the right to vote on account of color are unconstitutional."^-^ At issue in the Guinn case was the Oklahoma grandfather clause which exempted persons who had been entitled to vote on Januciry 1, 1866, or their lineal descendants, or their lineal descendants who lived abroad on that date, from ^^238 U. S. 347 (1915) . Slid, at 353.

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47 being disqualified for registration because of their inability to read and write certain sections of the Oklalioma state constitution. The case arose from the federal indictment and conviction of certain Oklahoma election officers under section 5508 of the Revised Statutes of 1875 which at that time was section 19 of the Criminal Code of 19Q9 and which was originally derived from section 6 of the Act of May 31, 1870. . ; < The caMB clearly involved state action, though federal statutes were also at issue. *he suit was brought by Negro citizens who alleged that the provisions in question of the Oklahoma constitution were void because they conflicted with the prohibitions of the fifteenth amendment and violated the Negro citizen's rights thereunder. The Supreme Court struck down Oklahoma's grandfather clause saying that it was "unable to discover how, unless the prohibitions of the Fifteenth Amendment were considered, the slightest reason was afforded ^2 "If ojmore persons shall band or conspire together or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,-the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years,— and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of lienor, profit, or trust created by the Constitution or laws of the United States." 16 Stat. 141.

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48 for basing the classification [for exemption from literacy requirements] upon a period of time prior to the Fifteenth Amendment. "^3 On the same day, June 21, the Court struck down a similar scheme in the State of Maryland. ^4 The Maryland scheme was based on the date, January 1, 1868. Here three parties had brought separate suits to recover damages against certain registration officials vho had refused to register them. The grounds for the suit were that the registration officials had, by their refusal to register the three parties, deprived them of a right to vote secured by the fifteenth amendment and that there was liability for damages under section 1979 of the Revised Statutes of 1875 .^^ In sending the Maryland scheme down the same path as the Oklahcana one, the Court said that if the defendant's argument were accepted. ... ^^ Guinn v. United States . 238 U, S. 347, 365 (1915). ^^ Mvers v. Anderson . 238 U. S. 368 (1915). 65This section was derived from section 1 of the Act of April 20, 1871, 17 Stat . 13, which provided that "any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution of the United States shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithsteuiding , be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ."

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49 it vjould follow that although the Fifteenth Amend. ment by its self operation without any action of the State had changed the clause in the constitution of the state of Maryland conferring suffrage upon "every white male citizen" so as to cause it to read "every male citizen," nevertheless the amendment was so supine, so devoid of effect as to leave it open for the legislature to write back i . by statute the discriminating provision by a mere changed form of expression into the laws of the State and for state officers to make the result of such action successfully operative. With these two cases, then, the advocates of equal suffrage for the Negro scored a victory and removed a road block to their aspirations. As was too often the case in the suffrage struggle, however, the removal of one obstruction does not cleeir the way but merely affords a better view of the next obstruction. The state of Oklahoma, in a demonstration of state resourcefulness when confronted by federal negative, did not forego its efforts at discrimination after the Guinn case disposed of its grandfather clause. The Oklahoma legislature passed another statute which provided that those who were qualified to vote in the 1914 general election— which had been based on the grandfather clause— automatically remained qualified voters. The new registration requirements would only affect others. These "others" were given from April 30, 1916k to May 11, 1916, to apply for registration. An extension waa given only to those wlio were out of the country at the time or who were prevented by sickness or unavoidable misfortune frcm applying within the original period. ' Mvers v. Anderson. 238 U. S. 368, 382 (1915)

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Ttom validity of tMs statutory provision came before the Supreme Court in Lane v. Wilson .^^ this case three county election officials were being sued for failure to register the colored petitioner on October 17, 1934. The action was one for 5,000 dollars in damages brought under the what was then section 43, Title 8 of the United States Code. ^Q claiming discriminatory treatment as a result of the Oklahoma legislation in violation of the fifteenth amendment. Here, again, state action was clearly the issue. The Court invalidated this latest Oklahoma disfranchising scherat with Justice Frankfurter proclaiming for the Court that the [fifteenth] Amendment nullifies sophisticated as well as simple -blinded modes of discrimination. • . It hits onerous procedural requirements which ef-» fectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.^^ The invalidation of the grandfather clause device was accomplished with relative ease conpared to the campaign now waged by the National Association for the Advancement of Colored People and other Negro organizations against the vAiite primary. This battle would take over two decades, and the main theatre would be the state of Te^iaa . Strangely enough the seeds of the struggle over the white primary were sown in the Northern state of Michigan in 67307 U. S. 268 (1939) . ^^Formerly section 1979 of the fipvfsed Statutes of 1875. See p. 48 & note 65 supra . . 6 ^ane v. SJiiSfiJi* 307 U. S. 268, 275 (1939) .

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a series of events where race was not an issue. In 1921, the United States Supreme Court held, in Newberry v. United States. "^Q that primaries were "in no real sense part of the manner of holding the election. Truman Newberry, in his campaign for nomination and election as United States Senator from Michigan, had been convicted of violating the Federal Corrupt Practices Act. 72 This act restricted campaign expenditures in securing nomination and in the actual election. The Supreme Court, however, set aside Newberry's conviction by separating the primary and general elections. "The Seventeenth Amendment," it said, which directs that Senators be chosen by the people, neither announced nor requires a new meaning of election and the word now has the same general significance as it did when the Constitution came into existence — final choice of an officer by the duly qualified electors. Primaries v/ere then xinknown. Moreover, they are in yio sense elections for an office, but merely methods by which party adherents agree upon candidates whom they intend to offer and support for ultimate choice by all qualified electors. General provisions touching elections in constitutions or statutes are not necessarily applicable to primaries— the two things cire radically different. ^ 3 '^256 U. S. 232 (1921) . 71jd. at 257. "^^Act of June 25, 1910, 36 Stat . 822. 7 3Newberry v. United States . 256 U. S. 232, 249 (1915) . (Emphasis added.)

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52 Continuing in the san» vein the Court said that the election did not depend upon the ach&axe by which candidates were put forward; primary, convention, petition, or whatever, did not directly affect the manner of holding the elections. "Birth," said the Court, "must precede but it is no part of either funeral or apotheosis. "^^ In its conclusion the Court paid homage to "states' rights": We cannot conclude that authority to control party primaries or conventions for designated Ccuididates was bestowed upon Congress by the grant of power to regulate the manner of holding elections. . . . Nor ' is this control necessary in order to effectuate the power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the State and infringe upon liberties reserved to the people. It should not be forgotten that, exercising inherent police power, the state may suppress whatever evils may be incident to primeiry or convention.^^ The Southern states interpreted the Newberrv decision to mean that the primeu:ies were theirs to do with as they pleased. Their pleasure was the exclusion of the Negro. Texas, in May of 1923, enacted a state statute which provided that "in no event shall a negro be eligible to participate in a Democratic party primciry election held in the State of Texas. "76 when the Court found this to be a denial of 74j^. at 257. 75id. at 258. 76 Nixon v. Herndon . 273 U. S. 536, 540 (1927).

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53 fourteenth amendment equal protection, ' Texas promptly tried another method of continuing its white primary which was promptly challenged in Ni^xon v, Condon .^^ At issue here was the Texas statutory measure enacted after the decision in Nixon V. Herndon . This new measure stated that I. , every political pcurty in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members ' and shall in its own way determine who shall be qualified to vote or otheinf/ise participate in such political party. . . .'^ The Court found this device also violative of the equal protection guaranteed by the fourteenth amendment. 80 The plaintiff in both these cases relied upon section 1979 of the Revised Statutes of 1875 for damages. ''"We find it unnecessary to consider the Fifteenth Amendment because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth .... States may do a good deal of classifying that is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in the case." Ibid . , ^8286 U. S. 73 (1932) . 79Quoted I^. at 82 . 80 "The test is not whether the members of the Executive Coxnmittee are the representatives of the State in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the State to such an extent and in such a sense that the great restraints of the constitution set limits to their action. Delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between vmite citizens and black. The Fourteenth Amendment, adopted as it was with the special solicitude for the equal prote'^tion of members of the Negro race, lays a duty upon the Court to level by its judgment these barriers of color." Jd.. at 89.

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The attempts to retain the white primairy did not cease with this last decision and its advocates enjoyed a temporary success when the Court held in Grovev v. Townsen^ . three years later, that the action of the Texas Democratic Party convention in adopting, on its own authoyitv and without state legislation on the su^aiect . a resolution restricting membership in the party to white citizens, was valid under the fourteenth amendment because it was not state action. The decision seemed to support the argument that political parties were private concerns not subject to the strictxires of the constitution against state action and that the primaries held by these parties were not really part of the election process. The concept was in short time due for significant revision, however. Six years after Grovev the Supreme Court rendered a decision in the case of United States v. Classic . This case, interestingly enough, was not a racial discrimination case, nor did it directly involve state action. Some election officials in Louisiana were prosecuted under sections 51 cuid 52, now sections 241 and 242, Title 18 of the United States Code , for tampering with ballots in a primary election where candidates for Congress were chosen. In reaching its decision the Court said: 81295 U. S. 45 (1935) . 82313 U. S. 299 (1941)

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55 The words of section 2 and section 4 of Article 1, read in the sense which is plainly permissible and in the light of the constitutional purpose, require us to hold that a primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which ^n the circumstances of this case controls that , choice , is an election within the meaning of the constitutional provision and is subject to Congressional regulation as to the manner of holding it.83 Now, if primaries could be considered an integral part of the election process it would follow that the idea that primaries were the private domain of private organizations was obviously due for some rather drastic overhauling. Three years later, in a new case from Texas, Smith v. Allwriqht ,^ the Court overruled Grovev, saying: Classic bears upon Grovey v, Townsend not because exclusion of Negroes from primaries is any more or less state action by reason of the unitary cheoracter of the electoral process but because the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the state. °^ After considering the ways in which the Texas primaries were regulated by state statutes, the Court concluded that the political party took its character as a state agency from the duties imposed upon it by state statutes. Even though the privilege of membership in the party might be of no concern to the state, when that privilege of membership was also Q3id. at 320. (Emphasis added.) 8^321 U. S. 648 (1944) . at 660.

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56 the essential qualification for participating in the primcury to select nominees for a general election, then the state made the action of the party the action of the state. 86 South Cearolina thought that it could solve the obstacles presented by the Smith v. Allwriciht decision by erasing all statutory references to party primaries thus transforming the Democratic Party of that state into a strictly private and voluntary association. These ambitions, however, were blighted at the lower court level®^ and the Supreme Court refused to grant certiorari.®® , It had been approximately twenty yeeirs from the Herndon case down to the invalidation of South Carolina's abortive white primary. During this long campaign the burden of the struggle had been carried on by private initiative. The remnants of the old civil rights acts which had survived into the Ru vised Statutes of 1875 and into the United States Code did not provide for civil suits initiated by the federal government in suffrage cases nor did they provide for injunctive relief from discriminatory practices.®^ Convictions of local offenders by local juries under the criminal provisions'^ of these acts which remained on the ®^id. at 663. Q'^ Elmore v. Rice., 72 F. Supp. 516 (E.D. So. Car. 1947); Rice V. Elmore . 165 F. 2d 387 (4th Cir. 1947). Q^ Rice V. Elmore. 333 U. S. 875 (1948), 89 See Appendix A. 'Qlbid.

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57 books was somewhat dif ficult.^-*Nevertheless, by the late 1940*8 considerable progress had been made, albeit at agonizing pace to those involved in the struggle. The grandfather clauses were gone and so apparently was the white primary. ; Like Banquo's ghost, however, the white primary did not rest in peace. It was found operating in full vigor in Texas through an arrangement in which a political party known as the Jaybird Party conducted its own primary. The winners of this pre-primary then entered the regular Democratic primary where they were uniformly successful. The Jaybirds excluded Negroes from their primary. The Supreme Court found this pre-primary arrangement to be an integral part of the election process and therefore subject to the limitations of the fifteenth amendment.^ •' More recently, in November 1959, the federal government filed a complaint under section 1971(a) , Title 42, of the United States Code against the Fayette County (Tennessee) Democratic Executive Committee whom it found conducting a white primary in that county. In the face of increased Negro registration for the primary election in 1959, notice was given by party officials that pcirticipation in the primaries ^^See, Carr, Fedeyal Protection of Civil Ricfhts t Quest for A Sword 138-146 (1947) . 92 Terrv v. Adams. 345 U. S. 461 (1953).

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58 was to be confined to white Democrats. The election officials adhered to these instructions and suit was filed by the Justice Department to enjoin the defendcuits from ex~ eluding Negroes from participation in any selection process conducted by the defendants or their successors. A consent judgment to this effect was entered on April 25, 1960.^^ As of the end of 1963 no other white primary operations had been brought to light by way of court action. The white primary was too blatant a violation of the guarantees of the fourteenth and fifteenth amendments to stand. As the states involved expanded their efforts to retain the white primeiry by various subterfuges designed to resemble private action, the federal courts expanded the concept of what constituted state action and, consequently, of what came under the prohibitions of the fourteenth and fifteenth amendments . A similar thread can be seen in other aspects of the suffrage struggle since the demise of the white primary. As the various states bent on discrimination have tried to avoid the responsibility that is theirs in regard to providing equal access to the ballot, the federal courts, aided to be sure by civil rights legislation after 1957, have cast an ^%ca:shall, "Federal Protection of Negro Voting Rights," 27 Law & Contemp. Prob . 455, 464 (1962). ^"^ United States v. Favette County Democratic Executive Committee , Civ. No. 3835, W.D. Tenn., April 25, 1960, 5 Race Rel. L. Rep . 421 (1960) .

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ever -widening net to encompass every gyration and contortion that the states are able to perform. Consequently, the "federal presence" increases and the offending states lift anguished voices in defense of "states' rights" and unleash scathing attacks against what they term "federal interference." Lashed on by their own rhetoric the states then indulge in more contrivances designed to thwcirt the "federal interference" and the cycle begins again. This phenomenon will become more apparent as this study proceeds. ' In the period after the Civil War we have seen how the federal government first entered the civil rights field with vigor at high tide. Then, as vigor and interest ebbed, withdrew from the field leaving as evidence of its presence the remnants of its civil rights measures and several constitutional amendments of unknown range of applicability. These bits and pieces of legal phraseology were to sustain the Negro in his struggle for equality until the first civil rights measiire of the twentieth century was passed in 1957. As has been pointed out, some notable gains were made due to the perseverance of private individuals and the increasingly favorable attitude of the Supreme Court towards civil rights, particularly in regard to the suffrage, as the nation entered the twentieth century. 95Act of Sept. 9, 1957, 71 Stat . 634.

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In the field of suffrage, however, merely the top of the iceberg of discriminatory practices had been chipped away in the elimination of the grandfather clause and the white primary. More comprehensive and effective devices than those available up to 1957 would have to be made available if the advance towards equality were to continue. '

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CHAPTER III THE CIVIL RIGHTS TEMPO INCREASES The Federal Judiciary in the Forefront In the long period from the passage of the last civil rights act in 1875^ dovm to the passage of the first civil rights act of the twentieth century in 19572 it was in the federal courts that the Negro's search for the ballot made what progress it did. , . . .. The various grandfather clauses, stamped invalid by the Supreme Court, were such obvious and clumsy contrivances to circimivent the fifteenth amendment that the Court would have had to indulge in some extraordinary judicial gymnastics had it been Inclined to uphold their constitutionality. Nevertheless, these devices were an obstacle which had to be eliminated. Their elimination represented a step forward. The invalidation of the white primary represented a step of greater magnitude. The essence of the struggle to do away with the white primary lay in the ever -widening judicial concept of what constituted state action. With the Court's decision in the Classip case^ serving as the keystone ^Act of March 1, 1875, 18 Stat . 335. 2Act of Sept. 9, 1957, 71 Stat . 634. ^United States v. Classic , 313 U. S. 299 (1941). 61 -

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62 after 1941, all subsequent efforts by states anxious to retain the white primary were struck down with unvarying regulcority, including South Carolina's nvute statute books."* State responsibilities in the matter of primary elections simply could not be shunted off to party executive committees,^ party conventions,^ or pre-primary primaries.^ Such a fundamental part of the democratic process as primary elections could not be given over to the caprices of "private' groups. The gift itself was deemed action on the part of the state. Today's militants on the civil rights front are quick to point out that eradication of the grandfather clause and the white primary, particularly the latter, is not much to show measured against the time involved. Furthermore, the militants add, these advances were qualified by the Supreme Court holding valid in Williams v. Mississippi^ a Mississippi law requiring voters to be able to read, understand, or interpret any section of the Constitution. This law and others like it would do yeoman service in furnishing those bent on restricting Negro suffrage with a tool much more sophisticated than the white primary with which to accomplish ^ Rice V. Elmore . 176 P. 2d 387 (4th Cir. 1947) . %ixon v. Condon. 286 U. S. 73 (1932). ^ Smith V. Allwriqht . 321 U. S. 749 (1944). ^ Terrv v. Adams . 345 U. S. 461 (1953). 8i7o u. S. 213 (1898) .

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63 their objective. In the Williams case too, the legality of the poll tax was upheld, a ruling later reaffirmed in 1937 when the Court held again in Breed love v. Suttles that the tax did not violate the fourteenth amendment.'' The poll tax has long been to many persons a sort of symbol of racial discrimination. By 1937, however, three , Southern states, acting on their own initiative, had repealed their poll tax requirements — North Carolina in 1920, Louisiana in 1934, and Florida in 1937. Georgia followed suit in 1945 and South Carolina in 1950. Tennessee, had, for all practical purposes, eliminated its poll tax requirements by 1951. The states still retaining the tax in 1952— Alabama, Arkansas, Mississippi, Texas, and Virginia — still were using the instrument at the time of ratification of the twenty-fourth amendment in 1964. Although the poll tax did operate in its time to disfranchise some potential voters, whites as well as Negroes, it is problematical how much, if any, increase in voter 9302 U. S. 277 (1937). Breed love was not a case involving race, however. A white male, age twenty-eight, attacked Georgia's poll teix statutes which exempted all persons under twenty-one cind over sixty, and all females who did not register to vote, from payment of the tax. The Court felt there was no denial of equal protection since the burden upon the appellant was exactly the same as that put on other men in his class. Paying homage to the institution of motherhood, the Court gallantly held that "the tax being upon persons, women may be exempted on the basis of special considerations to which they are naturally entitled. In view of burdens necessarily borne by them for the preservation of the race, the State reasonably may exempt them from poll tcixes." Id . at 282.

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64 participation subsequent to the 1964 constitutional amendment will be attributable to the elimination of the poll tax. One might even speculate that this latest amendment to the Constitution v/as successfully ratified precisely because there was, in reality, no pressing need for it. In three of the five states which retained the tax— Arkansas, Texas, and Virginia — the federal government had, as of the end of 1963 filed no voter discrimination suits under the 1957 and 1960 civil rights acts. In one state which early discarded the tax — Louisiana— there have been many suits in the federal courts. If the number of governmental suits may be taken as an indicator of the seriousness of the discrimination problem, then the states of Alabama and Mississippi have the somewhat singular distinction of having a constitutional amendment ratified practically for their "benefit" alone. Even in these states, however, where the federal government is almost continuously litigating voter discrimination suits, manipulation of the poll tax itaelf is seldom at the heart of the suit. As a deterrent to Negro registration, a much better case could be made for literacy tests than the poll tax. In combination v/ith "understanding" and "interpretation" requirements, the literacy test placed a potent weapon at the discretion of the registrar. As has been mentioned, Mississippi's literacy test, with the "understanding" or "interpretation" features was upheld in the early Williams v.

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65 Mississippi . Here the Court said that the statutes and Constitution of Mississippi did not "on their face discriminate between the races, and it has not been sho\ini that their actual administration was evil, only that evil was possible under them."-^^ . : Even this teclinique for denying the franchise had been weakened before the passage of the civil rights laeasuro t in 1957, however. Alabama had, in a general election of November 7, 1946, adopted the so-called Boswell Amendment which added as an additional qualification for registration that the applicant be able to "understand and explain" any article of the Constitution. Negro citizens of Mobile County brought suit alleging the unconstitutionality of this requirement in March of 1948, and in January of 1949 a three' judge federal district court declared the Boswell Amendment unconstitutional as violative of the fifteenth amendment. ^2 In reaching its decision the court found that "the ambiguity inherent in the phrase 'understand and explain' cannot be resolved, but on the contrary, was purposeful and used with a view of meeting the decision of the United States in Smith V. Allwriqht . . . ."^^ The purpose of the amendment 10170 U. S. 213 (1898) . 3-3-Id. at 225. l^ Davis V. Schnell . 81 P. Supp. 872 (S.D.Ala. 1949), aff d mem. 336 U. S. 933 (1949). at 876.

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66 was scarcely concealed. The court concluded that even though there was no mention of race or color in the Boswell Amendment this particular feature could not save it since, in Mr. Justice Frankfurter's words from Lane v. Wilson, the fifteenth amendment "nullifies sophisticated as well as simple -lainded modes of discrimination,"-^^ ;»; ' .. .. Davis V. Schnell is a significant case. The court was willing to go beyond the letter of the law and take cognizance, as it was not in the early case of Williams v. jdississippi , of the actual operation of a law not on its face discriminatory. The Boswell Amendment was a much more •^'*In a letter dated August 27, 1946, the chaiman of the State Democratic Executive Committee wrote to the other xoeoibers of the Committee saying, in part, as follows: "I might add that while a few members of our State Committee have expressed the thought that the funds of the State Committee should not be expended in a campaign either for or against the adoption of the proposed Boswell Amendment, yet the great majority of the members of our Committee have taken the position that since the emblem of our party is a crowing rooster v/ith the words 'Wiiite Supremacy' above the rooster, and the words 'For the Right' below the rooster, that it is entirely proper that the State Democratic Executive Committee should lead the fight to maintain the traditions of our Party in this state by adopting the proposed amendment to our Constitution and endeavoring, as far as it can legally be done, to make the Democratic Party in Alabama the 'white man's peirty'." Quoted i^. at 879. A campaign newspaper, the Alabama Democrat , in support of the adoption of the amendment ran the following headline and foot line: "Vote White— Vote Right— Vote for Amendment Ho. 4." Quoted i^. at 870. 15307 u. S. 268. l^Davis. V. Schnell . 81 F. Supp. 872, 880 (S.D.Ala. 1949) .

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67 sophisticated device than the grandfather clause and the white primary; the State of Alabama in employing this device only served to lengthen the shadow of legal protection cast by the fifteenth amendment. This case presaged a more careful scrutiny of the states' right to set the qualifications of electors. This scrutiny, in turn, would raise the rallying cry of "federal intervention" and violation of "states' rights" from the offended states. The story of the Boswell Amendment is once again illustrative of what might be called the civil rights theme, that is, the disinclination of a state to assume its responsibilities to its citizens and the consequent assumption of this responsibility by the federal goveriwaent. As the tempo of the civil rights movement increased in the 1940 ' s and 1950 's, the theme is repeated again and again and nowhere with more striking effect than in the area of suffrage. A Changing Climate Aside from federal court decisions, there were other signs that civil rights were becoming more important on the American scene. In 1939 Attorney General Prank Murphy created a Civil Rights Section in the Criminal Division of the Department of Justice. This new Civil Rights Section was handicapped by lack of sufficient personnel and the absence of adequate statutory bases from which to operate. Its establishment was of considerable importance, nevertheless.

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68 for there vwauld now be a government organization specifically concerned with civil rights. ' Five years later a significant step was taken in the private sector in connection with civil rights and suffrage in particular. In 1944 the Southern Regional Council was chartered in Georgia "for the improvement of economic, civic, and racial conditions in the South" and "to attain through research and action programs the ideals and practices of equal opportunity for all peoples in the region." ° The Council made the study of Negro suffrage one of its primary concerns and its studies of the suffrage problem in the South foreshadowed the later findings of the United States Commission on Civil Rights.-^' The yeara of these advances were also war years, yeaxs during which a sense of nagging moral discomfort arose within the American nation. This discomfort came from the discomforting paradox of waging bloody battle against an enemy with a creed grounded in theories of racial superiority — an enemy proceeding on a program of systematically eliminating l^Tuskegee Institute's compilation of lynching statistics for the years 1930-1939 indicate that there was ample reason for concern with civil rights. In this period 119 Negroes had been lynched along with ten whites. 1961 Report on Justice 268. ISrhe Southern Regional Council, The Southern Regional Council ; Its Origip and Purpose 5 (1944) . •^^Two examples of the Council's fine work, both by Margaret Price are: The Negro Voter in the South (1957) and The Negro and The Ballot in the South (1959) .

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69 a racial minority— while America at the same time indulged itself in racial discrimination. This discrimination was not confined to the home front but was extended to the segregated armed services put into the field by a democratic America to contend with the totalitarian states. The anomaly of this situation weis too stark to pass unnoticed, peurticularly by the Negro. The Second World War illuminated the problem of civil rights and racial minorities within the American nation and generated pressures for equality which called for an accelerated pace in the quest. Those individuals who, after the Second World War, sought return to pre-Wcu: status for civil rights in America sought a vanished Atlantis. One of the first manifestations of the changed civil rights climate in the country was President Truman's Executive Order of December 1946 establishing the President's " Conmiittee on Civil Rights. This Committee was to inquire into possible methods of establishing firmer safeguards for the civil rights of American citizens. The Committee sent its recommendation to the President the following year.^^ Among these were: (1) Reorganization of the Civil Rights Section of the Depcirtment of Justice to provide for the establishment of regional offices, increased staff eind appropriations, an increase in investigative action in the absence 20Exec. Order, No. 9808, 11 Fed. Reg . 14153 (1946). 21president 's Committee on Civil Rights, To Secure These Rights (1947) •

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70 of complaints, greater use of civil sanctions, and the elevation of the Rights Section to full division status within the Department of Justice; 22 (2) Establishment of a permanent Commission on Civil Rights within the Executive Office of the President and the simultaneous establishment of a Joint Standing Committee on Civil Rights in Congress; 23 (3) Legislation providing that "no mernber of the armed forces shall be subject to discrimination of any kind by any public authority or place of piiblic accommodation, recreation, transportation, or other services"; 24 (4) Congressional action to condition all federal grants-in-aid and other forms of public assistance "to public or private agencies for any purpose on the absence of discrimination and segregation based on race, color, creed or national origin"; (5) A federal Pair Employment Practices Act;26 and (6) "The enactment bv the states of laws guaranteeing equal access to places of public accommodation, broadly defined, for persons of all races, colors, creeds, and national origins."^' Plainly the Committee's recommendations were comprehensive, far reaching, and would involve a re-entry of the 22j^. at 151. 23ggd. at 154. 24id. at 163. 25i^. at 166. 26j^. at 167. 27id. at 170. (Emphasis added.)

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71 federal goveriucient into the civil rights field on a scale that would exceed the high tide of federal involvement after the close of the Civil War. In addition to the above generalized recommendations, the President's Committee had specific suggestions as to the manner in which the suffrage might be strengthened. First of all, the Committee called for action by the states or Congress to eliminate the poll tax as a voting prerequisite, adding that "Failing such prompt state action, we believe that the nation, whether by act of Congress or by constitutional amendment, should remove this final barrier to universal suffrage . "^^ The Committee then called for a federal statute to protect the right of qualified persons to participate in federal elections free from interference by public officers or private persons. A third recommendation called for another federal statute which would protect the "right to qualify for, or peorticipate in, federal or state primaries or elections against discriminatory action by state officers based on race, or color, or depending on any other unreasonable classification of persons for voting ."^^ Although the President's Committee did not call for the federal enactment of a public accommodations measure, recommending instead tiiat such a significant measure be ^ ^I j d . at 160. (Emphasis added.) ^^ Ibid . 30 i]3id .

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72 enacted by the states, certainly the thrust of the report was toward increased federal — ^not state — activity. This feature of the Committee's report would also characterize the later reports of the Civil Rights Commission. The states, in particulcir the Southern states, had little to show by way of accomplishment in the civil rights field for the period up to the time of the Committee ' s report in 1947 . The Committee ' s report was, in fact, an announcement that time had just about run out on these states. The year following the report of the President's Committee on Civil Rights, President Truman took two more steps in the civil rights field via the method of executive order. One such order was aimed at eliminating segregation in the armed forces of the country^-^ and another, issued on the same day, proclaimed the policy of "fair" employment for the federal government and created a Fair Employment Bocurd within the Civil Service Commission. In the same year, the Supreme Court handed down unanimous decisions in two cases which, while upholding the validity of restrictive covenants, denied than judicial enforcement. Though not dealing with the suffrage, the two cases clearly indicated a broad willingness on the part of the Court to utilize judicial power to strike at racial discrimination. In Shelley v. Kraemer^ -^ the Court found that 3lExec. Order No. 9981, 13 Fed. Reg . 4313 (1948) . 32Exec. Order No. 9980, 13 Fed. Reg . 4311 (1948). 3^334 U. S. 1 (1948) .

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it was "clear that but for the active intervention of the state coiirts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. "34 Judicial enforcement of restrictive covenants was, in short, state action within the meaning of the fourteenth amendment. "The Constitution," said the Court, "confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.""^^ In the second case, Hiird v. Hodae , arising in the District of Columbia where the fourteenth amendment would not apply, the Court held that judicial enforcement of restrictive covenants liould be a violation of section 1 of the Civil Rights Act of 1866.37 The roost significant court decision in this post-war era before the passage of the 1957 civil rights measure was, of course. Brown v. Board of Education of Topeka .^Q This decision was not nearly so abrupt a change on the part of the Court as its critics would have us believe. A careful study of the cases dealing v/ith racial discrimination, and particularly education, prior to Brown reveal quite clearly the 34id. at 19. 35jd. at 22. 36334 u. S. 24 (1948) . 37see p. 26 supra . 38347 U. S. 483 (1954).

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road which the Court was travelling.-'^ Although gfosQ], was concerned specifically with segregated education in the piiblic schools, holding it violative of the fourteenth amendBient, it struck a body blow at segregation in general, at the concept of "separate but equal," and at the idea of two classes of citizens with a separate class of rights for each. ' ' The intense drive to secure unfettered recourse to the ballot by the Negro is more easily understood if it is considered against this backdrop of the burgeoning Age of Civil Rights. Racial restraints and disabilities were , falling away on every hand and their demise only quickened the desire to be rid quickly of those that remained. The power of the ballot, if access to the polls could be secured, would tend to insure that remaining vestiges of second-class citizenship would receive more attention than heretofore from elected officials at all levels of government. The 1957 Civil Rights Act Federal action to protect and promote the right to vote was at the heart of the Civil Rights Act of 1957^*^ and also of the Act of 1960. These acts were not only a "^^Por example: Missouri ex rel Gaines v. Canada , 305 U. S. 337 (1938) ; Sjpuel v. Board of Regents of the University of Oklahoma. 332 U. S. 631 (1948): Mc-Laurin v. Oklahoma, 339 U. S. 637 (1950); Sweatt v. Painter. 339 U. S. 629 (1950) . ^^Act of Sept. 9, 1957, 71 Stat . 634. 4lAct of May 6, 1960, 74 Stat . 86.

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75 reflection of the continuing Negro migration^-^ to the North, and sijbsequent increased Negro participation in the electoral process, but also a reflection of increased problems of civil rights throughout the country. The passage of these acts was of momentous importance for American federalism— for relations between the federal government and the states. As a result of their enactment, the federal government and the states, or at least five of them, would be locked in constant court battles over issues of suffrzige. Part IV of the 1957 act set the stage by prohibiting attempts to intimidate or prevent any person from voting in general or primary elections for federal offices. "^-^ Part IV of the act also provided that the Attorney General was empowered to seek an injunction when any person '^^Hart, "The Changing Distribution of the American Negro," 50 Annals of the Association of American Geographers 242 (1960) . This article provides an interesting description of the patterns of Negro migration out of the South. 43"No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering v/ith the right of such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector. Member of the Senate, or Mamber of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate." 71 Stat . 637 (1957), 42 U.S.C.A. Sec. 1971(b) (Supp. 1963).

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76 was deprived or about to be deprived of his right to vote.^"* Constitutionality of this particular section was challenged in the first suit arising under the 1957 act. United States v. Raines . The United States District Court for the Middle District of Georgia dismissed the suit, holding that this section of the act was unconstitutional because its language applied to private persons and was "not limited to State action. "^^ Congress, thought th© district court, had exceeded its power under the fifteenth amendment in authorizing the United States, through its Attorney General, to enjoin purely private action which had as its ^ object the depriving of persons of their right to vote on . •.. account of race or color. Tlie complaint in the suit involved only official action, but the court ruled that since the statute on its face was susceptible of application beyond the limitations of the fifteenth amendment, it was unconstitutional in all its applications. 44whenever any person has engaged or there are reasonable groiands to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) , the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. In any proceeding hereunder the United States shall be liable for costs the same as a private person." 71 Stat. 637 (1957), 42 U.S.C.A . Sec. 1971(c) (Supp. 1963). ^^ united States v. Raines . 172 F. Supp. 552 (M.D.Ga. 1959) . 46j^. at 558

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The district court's ruling was reversed by the Supreme Court which believed that the question of constitutionality had been prematurely injected into the case. "Whatever may be the reach of the Fifteenth Amendment, " said the Courtjf, it is enough to say that the conduct charged — discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color — is "state action" and the clearest form of it, subject to the ban of that amendment, and that legislation designed to . deal with such discrimination is 'appropriate legislation' under it. 47 After eighty-two years federal participation in the civil rights field once again was entering the flow stage. The ending of the legislative drought on civil rights reflected vividly the change in the civil rights climate throughout the nation. Although proponents of the 1957 bill did not get all they desired in the measure as finally passed, it cannot be denied that the 1957 act was a significant step forward in extension of the suffrage. Part I of the 1957 act was also of great significance for federal -state relations. Under this part, the Civil Rights Commission was created and empowered to (1) investigate allegations that citizens of the United States were 47 united States v. Raines . 362 U. S. 17 (1960). " •^^Eliminated from the bill was Part III which would have provided that the Attorney General could initiate suits seeking injunctions against any person who deprived or was a3x)ut to deprive any other persons of any civil right.

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IB being deprived of their right to vote and have that vote counted on account of race, color, religion or national origin; (2) study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and (3) appraise the lam and policies of the Federal Government v/ith respect to equal protection of the latws under the Constitution.^^ The effect of this part was to establish a new federal agency, particularly devoted to the advancement of civil rights and which laould devote its full time and resources to investigation and probing of those sensitive spots which some of the states v^ere least inclined to have investigated and analyzed. Chief among such matters was that of suffrage. 4971 Stat. 635 (1957), 42 U.S.C.A. Sec. 1975(c) (Supp, 1963) . S^An attache on the rules of procedure adopted by the Commission as being violative of the fifth amendment was fended off by the Supreme Court in Hannah v. Larche . 363 U. S. 420 (1960) . The Court held that the Commission was authorized under the 1957 act to adopt rules providing that complainants to the Coiraaission could reaain unidentified, that those testifying before the Commission, including individuals against v/hora complaints had been lodged, could not crossexamine other \idtnesses called by the Commission, and that the Commission's rules of procedure did not violate, under the due process clause of the fifth amendment, the rights of those individuals who had complaints filed against them. The Court found the Commission's functions were "purely investigative and factfinding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In slK>rt, the Commission

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79 In its first two years of existence the Civil Rights Commission, composed of six members, held hearings in New York City and Chicago in the North, as well as in Montgomery, Nashville and Atlanta in the South. The findings and recommendations of the Commission's first two years, as submitted in its 1959 report, are an interesting commentary on the tendency for expansion apparently inherent in governmental agencies as well as an insight to Coiranission thinking concerning the clash over suffrage between the federal government and the states. As a first recommendation, the Commission proposed — since it felt there was a general deficiency of information available on the phenomenon of non-voting as it related to race, color, and national origin — that the Census Bureau be authorized to take a nation-wide compilation, by supplementary census if necessary, of registration and voting statistics which would include a count of individuals by race, color and creed, registered to vote and the extent of their previous voting participation. does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action." Hannah v. Larche . supra at 441. -"^U. S, Commission on Civil Rights, Report of the Commission 1959 (1959) [Hereinafter cited as 1959 Civil Rights Report 1 , ^2id. at 136.

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80 Second, the Commission decried the lac3c of "uniform" provisions for the preservation of voting and registration records. Lack of such information impeded its work. The recommendation was made that Congress require that all state voting and registration records be preserved for a period of CO five yecirs and be open to public inspect ion. ^-^ Third, the Commission proposed that Congress amend the Civil Rights Act of 1957 to make it illegal for state officials to refuse to perform their duties in registering voters. This recommendation was directed at those cases where registrars refused to fxinction or were not appointed. During the voting hearings in Montgomery, Alabama, in 1958, the Comroission was, it said, "impressed with the fact that its purposes were not fully realized because of the divided authority for compelling production of registration records. "55 Commission could, in fact, subpoena records but only through a request to the Attorney General to seek court process to compel a contumacious witness to comply with the Coirmiasion's subpoena. The Commission found such divided responsibility "unusual" and believing that such situations "require rapid, coordinated action and conatiunication, " it asked that in cases of contumacy or refusal to obey a subpoena issued by the Commission, the Commission be empowered to 53j^. at 138, 55y^. at 139.

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apply directly to the appropriate federal district court for enforcement process. Finally, the Commission recommended that a federal registrar system be initiated. Under this proposal, upon receipt by the President of sworn affidavits from nine or more individuals— in any political subdivision of a statealleging that they had attempted to register and were denied the right to register on account of race, color, religion, or national origin, the President would turn these affidavits over to the Commission for investigation of their validity. The Commission would certify the well-founded affidavits to the President v^o would appoint a teraporcury registrar in the area from which the complaints were received. This registrar would administer the state laws on voter registration and issue registration certificates to those qualifying, enabling them to vote in federal elections. Jurisdiction would be retained until such time as the President determined that the presence of the registrar was no longer necessary. This recommendation was, in effect, a reworking and elaboration of the supervisor system set forth by the Act of Pebrueiry 28, 1871,^® with a central role for the new Commission on Civil Rights. ' 56jbid57^^. at 141-42. 58i6 Stat . 433.

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82 The Commission's recoiranended registrar system is a most significant suggestion. The registrar scheme would have a federal officer, appointed at federal discretion, administering state law because federal discretion had decided that state law was not being properly administered. If such an arrangement in regard to voting registration seems feasible to the Commission, why, one might ask, would not something similar seem appropriate in regard to education; that is, if local school boards continued to stall on desegregation of schools, or to gerrymander school districts to achieve or to continue segregation, why not appoint federal officers to draw the school district lines to assure compliance with the "equal protection" guarantees of the fourteenth amendment? That the proposal would result in a great shift in federal-state relationships cannot be gainsaid. As this recommendation demonstrates, the problems of eliminating racial discrimination in our federal system frequently generate an impatience witli the system and a chafing at its restrictions. There is a tendency to want to slice directly through the entanglements of federalism and achieve "equality" with a decisive stroke. This characteristic will become more apparent as this study proceeds. Zn addition to all the recommendations discussed above, three of the Commissioners— Bannah, Hesburgh and Johnson --proposed slashing directly through the Gordian knot

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83 of the suffrage problem with a constitutional amendment "to establish a free and \iniversal suffrage throughout the United States," viewing this "as the best ultimate solution of the problem of securing and protecting the right to vote."^^ The Commission added that the proposed amendment was "in harmony with the American tradition and with the trend in the whole democratic world" and would "reassure lovers of freedom throughout a world in vAiich hundreds of millions of people, most of them colored, eire beccanaing free and aire hesitating between alternative paths of national development." In deference to the federal -state relationship involved« the three Commissioners said that an important aim of this amendment vx>uld be to remove the occasion for further direct federal ... intervention in the states' administration and conduct of elections by prohibiting complex voting requirements and providing clear, simple* , v. and easily enforceable standcirds.®-'^^1959 Civil Rights Report 143. ^ , . ,w . , 60j^. at 144. '^<>. _ ^V: . . . .v / ^•^ Ibid . The proposed amendment: "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State or by any person for any cause except inability to meet State age or length -of -residence requirements uniformly applied to all persons within the State, or legal confinement at the time of registration or election. This right to vote shall include the right to register or otherwise qualify to vote, and to have one's vote covmted. Section 2: The Congress shall have power to enforce this article by appropriate legislation . . . ." l^. at 144-45.

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84 A court injiinction could require that any person who met these clear cut state qualifications be inmvediately registered. The effect of such a proposal would be to eliminate future state -federal clashes by stripping the states of their power to set voting qualifications other than age, residence, and absence of legal confinement at the time of registration or election. Uniformity would be substituted by constitutional amendment for that diversity often put forth as one of the virtues of a federal system. ' ' It should be borne in mind that the Commission's amendment proposal, as well as its other voting proposals, are aimed primarily at four states— Alabama, Georgia, Louisiana, and Mississippi— judging by the concentration of voting suits filed by the Justice Department in these states. These states must take primary responsibility for the push tov/ard xiniformity and the restriction of state control which ^^carrying the Commission's reasoning on the suffrage amendment one step further, one might maintain that federalstate clashes in the field of education might similarly be averted by another constitutional amendment establishing a unifom racial -balance percentage figure which states would be obliged to maintain within their public schools as evidence of non -segregated education. This would also provide "clear, simple, and easily enforceable standards." Interestingly enough the Commission did recommend that the office of Education of the Depairtment of Health, Education, and Welfare, in cooperation with the Bureau of the Census, "conduct an annual school census that will show the number and race of all students enrolled in all public educational institutions in the United States, cind compile such data by States, school districts, and by individual institutions of higher learning within each state." Id . at 327.

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85 is involved in the Coinmission 's proposed amendment. By their discriminatory behavior in the field of suffrage, these four states have brought retaliatory action on themselves. The passage of the 1957 civil rights measure and the recommendations of its prime administrative arm, the Civil Rights Commission, should have served as a warning and an indication of the mood of the country to these four states. : As the second general report of the Coranission made in 1961 would indicate, however, discriminatory suffrage tactics increased after the passage of the 1957 act. Furthermore, Negroes, becoming impatient with the progress being made in the civil rights field generally, initiated the tactics of the "sit-in" early in 1960. This tactic along with boycotts, picketing, and street demonstrations grew in popularity as a means of expressing dissatisfaction. The 1960 Civil Rights Act In May of 1960 Congress was able to pass eunother civil rights bill^^ which, like the measure passed in 1957, was designed basically to help Negroes to secure the right to , vote.^** This new act took several steps in the direction of recommendations made by the Civil Rights Commission in its 1959 report. First of all, the new civil rights measure ^^Act of May 6, 1960. 74 Stat . 86. ^'^For a study of the legislative struggle involved in the passage of the 1960 act see Herman, A Bill Beccmies a Law i The Civil Rights Act of 1960 (1962) .

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86 provided in Title III that voting records and registration records for all federal elections, primaries included, must be preserved for a period of twenty-two months after the election and made provision for the inspection of these " records by the Attorney General. The Commission had, it will be recalled, recommended preservation of the records £or a period of five years. Much litigation h2is centered on this particular provision of the act.^^ The essence of the constitutional attacks has been that Title III ' s provisions constitute a denial of due process guaranteed under the fifth amendment and are repugnant to the commands and protections of the sixth amendment. For example, in one of the latest cases, Kennedy v. Lewip^ ^ the defendant registrar contended that due to the criminal sanctions available to the Attorney General under Title III of the 1960 Civil Rights Act ... [the defendant registrar] should be informed of the nature and cause of the accusation; be confronted with the witnesses against her and have the right of cross examination of these witnesses and all other safeguards guaranteed . . . under the Sixth Ttoendment of the United States Constitution. The demand to inspect ^^74 Stat . 88 (1960), 42 U.S.C.A. Sec. 1974 (Supp. 1963) . "See, for example. In re A. B. (Brown^ Gordon. 218 P. Supp. 826 (S.D. Miss. 1963) ; Coleman v. Kennedy. 313 P. 2d 867 {5th Cir. 1963); In re Coleman. 208 F. Supp. 199 (S.D. Miss. 1962); Kennedy v. Lynd . 306 P. 2d 222 (5th Cir. 1962); Kennedy v. Bruce . 298 F. 2d 860 (5th Cir. 1962); Dinkens v. Attorney Goneral of United States . 285 P. 2d 430 (1961); Alabama, ex rel Gallioja v, Roqeys , 187 F. Supp. 848 (M.D. Ala. 1960) , , . , . 67 325 F. 2d 210 (5th Cir. 1963).

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87 the records in her custody by the Attorney General for the purpose of ascertaining whether or not Federal law has beep violated amounts to an accusation against her.^° The court of appeals rejected this contention saying: We repeat here that the proceedings and hearings afforded to Mrs. Lewis comport with procedural due process and tiiere is no substance in the at> tacks of the appellee on the constitutionality of this section of the law under the Fifth Amendment, the Sixth Amendment, or any other part of the constitution. °^ Shortly before this decision in December 1963, the Supreme Court in July of the same year had refused to stay an order of the same court, tl^e Court of Appeals for the Fifth Circuit, in another case'° directing Mississippi registrars to make voting records available to the Attorney General. ^-^ Justice Black, speaking for the Court, said that whatever might be the case if movants were being summoned by the Attorney General, not simply to produce documents of v/hich they are mere custodians, but to give oral testimony amounting in fact to the first step in a criminal prosecution ... I agree with the Solicitor General that, under the circumstances liere, the constitutional questions raised are not so substantial as to justify my upsetting the order of the Court ^^Brief for Appellee, p. 49, Kennedy v. Lewis, 325 F. 2d 210 (5th Cir. 1963) . ^^Ssaas^v. lesMis^ 325 f. 2d 210, 211 (sth cir. 1963) . A similar statement was made by the same court of ^peals in Kennedy v. Owen, 321 F. 2d 116, 117 (5th Cir. 1963) , a case involving similar circumstances. , "^Q Kennedv v. Owen , 321 F. 2d 116 (Sth Cir. 1963). "^^ Owen V. Kennedy . 84 S. Ct. 12 (1963) .

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of Appeals. That order does not require inovants to testify before any office, official, or agency, but only requires them to nialce available to the i .' Attorney General or his representative, under fair and reasonable conditions, records of v;hich movants are not the owners but are only custodians for the State or its agencies. Our Court has uniformly held that one who is a mere custodian of records cannot invoke the Fourth or Fifth An^ndments to resist an order to produce such records. Another new provision was contained in Title IV of the 1960 act. Under this title the Civil Rights Commission was empowered to administer oaths and to take sworn statements.^^ Rather surprisingly, the 1957 act contained no such provision. . Title VI of the new civil rights bill^^ took steps in the direction of the Commission's 1959 registrar proposal .^^ Under this title when a federal court finds in a suit brought under the 1957 act that a person has been deprived of his right to vote on account of race or color, the Attorney General may ask the court to find that deprivation was pursuant to a pattern or practice. If the court finds that such pattern or practice exists, then any person of that race or color may apply to the court for an order declaring him qualified to vote upon proof that at any '^I^. at 13. '^h4 Stat . 89 (1960), 42 U.S.C.A. Sec. 1975(d) (Supp. 1963) . . : 7474 Stat. 90 (1960), 42 U.S.C.A . Sec. 1975(e) (Supp. 1963) . ^%ee p. 81 supra.

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89 ~ election or elections (1) he was qualified under state law to vote and (2) he has since the finding of pattesn:! or practice by the court (a) been deprived of the opportunity to register and vote under color of law or (b) found unqualified to vote by any person acting under color of law. To carry out these provisions the court is empowered to appoint voting referees with power to review the applications, take evidence and report their findings to the court* These referees proceed ex parte at such times and places as the court directs. The ^plicant's statement under oath is considered as prima facie evidence of his age, residence, and prior efforts to register to vote* Where proof of literacy or "understanding" is required by state law the applicant's \7ritten answers are to be included in the report to the court and if the test is oral, his auiswers are to be taken down stenographic ally and included in the report. The ^plicant's literacy and understanding of other subjects would be determined solely on the basis of answers included in the voting referee's report. Title VX also provides that state officials are allowed to challenge the referee's report within a time limit fixed by the court but not to exceed ten days. The issues of facts and law raised by exceptions to the referee's report would be determined by the court, or if speed were of the essence, they could be determined by the voting referee in accordance with judicially prescribed procedures. An

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90 applicant who applied for a court certificate twenty days or more before an election and found his application challenged is allowed to vote provisionally if his case were not decided by election day« provided that he is qualified to vote under state law, r, < ^ ,v In order to solve the problem of resigning registrars and similar dilatory maneuvers, the last section of Title VI provides that where a state official is alleged to have committed ciny act or practice which constituted a deprivation of rights secured by section 1971(a) of the United States Code,"^^ the act or practice is to be considered that of the state and the state could be joined as party defendant if, prior to the institution of the suit, the state official involved resigned, or weis relieved of his position, and no successor had replaced him.''^ In spite of these additional methods of protecting the right to vote the Civil Rights Commission found in 1961 that the nation still faced "substantial and urgent problems in civil rights." One of the outstanding of these problems was the fact that in "some 100 counties in eight Southern states there is reason to believe that Negro citizens are . . prevented --4)y outright discrimination or by fear of physical ^^See Appendix A. 7774 Stat. 92 (1960), 42 U.S.CA. Sec. 1971(c) (Supp. 1963) . . . .. .

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91 violence or economic reprisal— from exercising the right to vote."''^ The Commission went on to say that although "the gap between the promise of liberty amd its fulfillment is > . narrower today than it ever has been in the past, " a gap nevertheless remained which "in the changing world of 1961 seems wide auid deep, and the demand to close it is more urgent than ever."^^ This urgency, the Commission said, was due in paurt, to the fact that "the closer we come to the achievement of our ideal, the more obvious and galling is the remaining disparity, "®^ and due in part to events [that] in a rapidly changing world have put a new focus on the way in which the United States puts its principles into practice. The emergence of new nonwhite nations in Africa and Asia does ^ not make an inequity anymore unjust. It may, however, maJce remedial action more urgent. '* As in 1959, the Commission made recommendations which it felt would improve the situation in regeird to suffrage. By 1961 the Commission had apparently despaired of getting an amendment guaranteeing "free and universal" suffrage and recommended instead that Congress take action '^^ 1961 Report on Voting 5. ^^Mat 1. 80 lbid . (Emphasis added.) Slid, at 2.

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under the second section of the fifteenth amendment^^ ^n^ sections 2 and 5 of the fourteenth amendment^^ to (a) declare that voter qualifications other than age, residence, confinement, and conviction of a crime are susceptible of use. and have been used, to deny the right to vote on grounds of race and color . (b) enact legislation providing that all citizens of the United States shall have a right to ^^The fifteenth amendment to the United States Constitution in its entirety I "Section 1, The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation." 83sections 1, 2, and 5 of the fourteenth amendment to the United States Constitution ; "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective ntucibers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of election for the choice of electors for President euid Vice President of the United States, Representatives in Congress, the Executive and Judicial Officers of a State, or the members of the Legislature thereof, is denied to cuiy of the male inhabitemts of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

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93 vote in federal or state elections which shall not be denied or in any way abridged with by the United States or by any State for any cause except inability to meet reasonable age or length-of-residence requirements unifomly applied to all persons within a State, legal confinement at the time of registration or election, or conviction of a felony; such right to vote to include the right to register or otherwise qualify to vote, and to have one's vote counted . °^ The Commission's second recommendation was for Congress to enact further legislation providing that in all elections in which a literacy test, an understanding test, an educational test, or an interpretation test was required by state law, such requirements would be fulfilled if the elector had completed six grades of formal education, ^5 An amendment of existing law^^ was also requested by the CcMiHnission to prohibit "any arbitrary action or (where there is a duty to act) arbitrary inaction, which deprives or threatens to deprive any person of the right to register, vote, and have that vote counted in any Federal election. "^^ In two concluding proposals, the Commission recommended, first, that Congress consider the advisability of 84 " ^1961 Report on Voting l-^Q, 85 j^, at 140. The Ku Klux Klan, interestingly enough, had urged only a four-year standard in 1925. Hearings Before Subcommittee No. 5 of the House Committee on the Judiciary. 88th Cong., 1st Sess., ser. 4, pt. 2, at 1143 (1963). "^Specifically, 42 U.S.C.A. Sec. 1971(b). See note 43 supra . • 871961 Report on Voting 141.

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requiring that voting districts for federal elections or state elections to any house of a state legislature elected on a population basis be equal in population as nearly as possible, and that the federal covurts be givexx specific jurisdiction of cases arising out of such election district requirements. Second, the Coitanission again renewed its proposal for an iiranediate nationwide compilation of registration and voting statistics including a "coxint of persons of voting age in every State and territory by race, color, and national origin, who are registered to vote, and a determination of the extent to which such persons have voted since January 1, 1960."^^ As a part of the last proposal, the Coinroission recommended the addition of a requirement that the Bureau of the Census compile such information in each next succeeding decennial census, and at such other times as Congress might see fit.^^ The legislative dem had been breeched with the 1957 act and, as has been outlined in this chapter, there has been an increasing demand for ^^16, at 141^2.

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«-. 95 federal legislated equality throughout the sTibsequent years. In regard to the suffrage, this demand can be laid at the doorsteps of a few obstreperous Southern states. In regard to civil rights in general it can be laid at tho doorsteps of all fifty states of the Union. ^'The period generally is one where emphasis is placed on action, not reflection and tliought. There were, of course, exceptions. Alfred DeGrazia writing in early 1959 remarked that the 1957 Civil Rights Bill, "as with most bills of like character that have faced Congress, has envisioned greater use of the federal police power to enlarge civil rights. Such proposals depend for their success upon the direct reform of people who feel that they would betray their deepest loyalties by being 'reformed.' Indeed the present law may operate so as to indefinitely postpone reform and may lead only to greater disrespect of police and courts— with possibly an even more bitter attempt later on at more policing and more litigation." Alfred DeGrazia . "A New Way Tov/ards Equal Suffrage," 34 N.Y.U.L. Rev . 716 (1959) . As an esiample of this latter tendency DeGrazia cited a report on p. 11 in the Nev/ York Times of March 21, 1959, of Attorney General Rogers on the previous day defending before a Senate Judiciary Subcommittee a plan proposed by the executive branch to designate as a federal crime the use of force or threats of force in resisting judicial attempts to desegregate schools. Ibid . It is also interesting to note in this context the remarks attributed to Dr. Martin Luther King to the effect that the federal marshalls were not equipped to handle the civil rights policing job and that a "big federal police force v/ould be needed at first . . . when citizens learned of its existence, the need for it would diminish." Hearings Before S ubcoramittee No. 5 of the House Committee on the Judiciary. 88th Cong., 1st Sess., ser. 4, pt. 3, at 2155 (1963) . [Hereinafter cited as 1963 Civil Rights Hearings, pt. 3 ] .

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CHAPTER IV THE EXSMSDUHG "FEDERMi PRESENCE" As the nation entered the decade of the 1960 's it was, in effect, engaged in a second Reconstruction. It was, however, a Reconstruction aimed at the nation as a whole and not confined merely to the South. With the exception of the Negro suffrage problem which remains peculiar to the South, Negro protest activities in the Sixties have made it plain that racial problems are nationwide. School boycotts, picketing, and sit-ins to protest de fac to segregation in education are widespread phenomena across the nation, particularly in the large urban areas. ^ Picketing cind threatened boycotts are used to enforce job demands. In the late summer of 1963« for example, the National Association for the Advancement of Colored People issued a threat to boycott ••United States Commission on Civil Rights, Civil Rights '63 13-50 (1963) [Hereinafter cited as 1963 Civil fiep9rt1. ^The Civil Rights Commission reported that the metropolitan area of New York City had been the center of such protests since the summer of 1961 and that similar demonstrations had occurred in Philadelphia, Boston, Chicago, and St. Louis. Id . at 53-54. Since the Commission's 1963 findings, school boycotts have increased in popularity as a protest tactic. Ecurly in 1964 a reported 462,363 out of New York City's 1,000,000 public school children staged a one-day boycott to protest segregated schools, "The Spreading Boycott," Time, Feb. 14, 1964, p. 48. 96 -

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97 Hollywood movies and the products of television sponsors unless Negroes were given increased roles throughout the industries concerned,-^ The Negro was anything but a helpless and passive bystander in this second Reconstruction as these activities demonstrate. He was, in effect, demanding a racial revolution for the entire nation. President Kennedy's Civil Rights Message of June 19, 1963,^ and the proposals contained therein reflect the intensity and the quickening pace of the racial revolution. They reflect the extent to which the President cind others of like mind would have the federal government go in alleviating the nation's race problems. In addition to voting proposals, which will be discussed in detail later, the President asked for inclusion in a Civil Rights Act of 1963 the following: (1) A provision which would guarantee to all citizens equal accommodations in public facilities;^ (2) Authority to enable the Attorney General to initiate suits in federal district courts against local school boards or public institutions of higher learning in order "to "^he HAACP demanded that: " (1) Negroes appear in television commercials. (2) Negroes be shown in professional roles to balance menial roles. (3) Negroes comprise oneninth of film casts and crews, since they comprise about one-ninth of the nation's population. (4) The Negro be depicted as he really is in the context of Americcin life. (5) A Negro have a continuing role on each television series." Gainesville Sun , Aug. 16, 1963, p. 14. ^ H. R. Doc. No. 124 (1963) . 5jd. at 3-5.

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98 achieve a more orderly and consistent compliance with the Supreme Court's school and college desegregation decisions?"^ (3) A Community Relations Service to provide assistance to communities and persons living in them in resolving racial disputes, discriminatory practices, emd so forth;' (4) The pcissage by Congress of "a single comprehensive provision making it clear that the federal government is not required, under any statute, to furnish any kind of financial assistance — by way of grant, loan, contract, guaramty, insurance or otherwise—to any program or activity in which racial discrimination occurs,"® . In addition to these proposals, the President called for expansion and broadening of existing programs aimed at relieving the unemployment problem, particularly virulent among Negroes, and the elimination of racial discrimination in employment.^ In an earlier message to Congress on February 28, 1963, the President had asked for expansion of the Civil Rights Commission's activities to include its serving as a "national civil rights clearing house providing information, advice, and technical assistance to any requesting agency, private or public" and extension of the 6jd. at 6. at 11. Qyd.. at 12. ^Idi. at 7-11. }'

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99 Conunission for a tern of "at least 4 more years. "'•^ Provisions to this effect were also included in the proposed , 1963 bill.l^ President Johnson in his first address to Congress indicated his support for these measures. The new Chief Ejcecutive said that no memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long .... I urge you again, as I did in 1957 and 1960, to enact a civil rights law so that we can move forward to eliminate from this Nation every trace of discrimination and oppression that is based upon race or color. There could be no greater source of strength to this Nation both at home and abroad. '^ The long-range effect upon American federalism of those of President Kennedy's civil rights proposals v/hich are finally enacted into law are incalculable. These proposals obviously envisage a much broader civil rights measure than those enacted in 1957 and 1960-*-3 and one in which voting provisions form only one of the important sections of the measure. The attempt to guarantee access tQ public accommodations perhaps overshadows all else requested by the President. Taken alone, this public^O h. R. Doc. No. 75, 88th Cong., 1st Sess. 8 (1963). ^JH. R. Doc. Ho. 124 23 (1963) . 12 h. R. Doc. No. 178 . 88th Cong., 1st Sess. 3 (1963). 13Act of Sept. 9, 1957, 71 Stat . 634; Act of May 6, 1960, 74 Stat. 86.

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100 accommodations provision could serve as apt illustration of the fact that federal participation in the Negro's quest for equality has once again reached the flow stage. "Public accommodations" is an issue pregnant with questions of rights, both "human" and "property." It is heavy with potentialities for federal -state conflict. Federal regulation and "federal presence" would increase, once publicaccommodations guarantees were written into law, with the need to see that federal guarantees of equal access are indeed observed. The mass of litigation which could be raised by these guarcintees of equal access would certainly far exceed the numerous suits raised in the areas of voting and education. We are not likely to see in the future any ebbing away of federal participation like that after the Civil War when the flush of equalitarianism generated in that Reconstruction faded rapidly to insignificance within a few short years. The Negro himself stands as a barrier to this. He has tasted of equality and first-class citizenship in the past few years and found it an CTiinently satisfying diet. He stands organized and militantly ready to defend his advances— and press for more. Further, a nation attempting to provide leadership in a predominantly "colored" world can ill afford to negate advances made by its own colored minority. Perhaps most important of all, as the passage of two, and most likely three, civil rights measures in a

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101 space of seven years might indicate, significant numbers of Americans are apparently re-examining their concepts of equality and vrtxat is involved therein. . Federal efforts to enforce the guarantee of access to the ballot without discrimination on account of color will most likely be duplicated by federal action in regard to ' public accommodations, employment, education and other aspects of civil rights. Indeed, provisions appeared in President Kennedy's draft 1963 civil rights bill in the version as it passed the House, and in the version being debated in the Senate at the time of this writing, which indicate that this is already becoming the case. In summeucy, what has taken place in the area of voting is that a small minority of Southern states have, by their obstreperousness and obdurate refusal to see to it that their Negro citizens are not denied access to the ballot box, induced and invited federal intervention on a very much broader scale that would astound the Founding Fathers. The continued recalcitrance of these states only invites mora federal intrusion. In an era of immense central government, which shows signs of becoming more immense, a healthy federalism can hardly be preserved by unnecessarily expanding the activities and province of the central government. Expansion of the federal government is precisely what these few states have accomplished, however, for as the pressure mounted for compliance with the fifteenth amendment

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102 they took refuge behind the doctrine of "states' rights" and from this position displayed extraordinaury persistence and versatility in thwarting the letter and the spirit of that amendment. From this position these states issued challenge after challenge to the federal government. These challenges were answered in part by the federal government in the form of the Civil Rights Acts of 1957 and 1960, undoubtedly to be implemented soon by a third and broader civil rights act touching activities not immediately related to the suffrage. The fact that these first tv«> acts were directed primarily towards a handful of states does not lessen the seriousness of their impact on the federal system. With these acts a precedent is set for additional action by the federal government in order to overcome state relucteince and obstinacy. New^ techniques are developed for the guarantee of civil rights which thrust the "federal presence" forward in many directions, techniques which are geographically applicable outside the South as in it and substantively applicable in all the fifty states. Considering the enormity of the federal government, its multitude of activities, and the additional chores urged upon that government daily, its expansion through civil rights, an airea so intimately a part of the democratic concept of government, by way of the default of a few states, portends possible ill for a healthy federal system. This expansion may presage. 3-4 ibid .

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103 rather « unity and unifozmity under a central government which is truly hie et ubjque . Expansion of a Technicrue As we have seen, in the civil rights measures adopted during the Reconstruction period the individual v^as left mostly on his ovm to take civil action to protect rights guciranteed to him by the new statutes. Not only did individual action by court suit entail considerable expense, but the notoriety gained in such litigation stood a fair chance of subjecting the individual to various types of extra-legal pressures from the coitmunity in which he lived. Tliis situation was alleviated to cin extent by the Civil Rights Act of 1957, Part IV of which provided that the Attorney General of the United States could institute a "civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order" to prevent deprivation of the right to vote, 15 With this provision the federal government took a vigorous and affirmative step into the area of civil rights in general and into the area of voting specifically. The victim of discriminatory suffrage practices would no longer have to bear the costs of extended litigation to establish his right to vote. The federal government would carry his "71 Stat . 637 (1957), 42 U.S.C.A. Sec. 1971(c) (Supp, 1963) . See also p. 76 & note 44 supra .

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104 case for him. Moreover, a new governmental body, the Civil Rights Commission, would assist. This new Commission would search out racially discriminatory practices, point them out in reports, and thus along with the Justice Department, beeir the brunt of any community obloquy. Significantly, it was the federal government, not the state governments — those governments said to be "closer" to the individual and local problems — which now assumed a burden in protecting the franchise . Significant also is the fact that since many of the acts and practices of discrimination v/ere, in effect, being carried on by state and local officials, suits initiated by the Attorney General would bring the federal government into repeated clashes with local government . 16 Ti^e possibilities of such clashes were increased by provisions of the Civil Rights Act of 1960 declaring that discriminatory acts of state and local officials would be considered acts of the state and that the state could be joined as party defendant, ^7 The stage was thus set for protracted conflict between nation and state. l^By July 31, 1963, the Department of Justice had filed forty-five suits under the Civil Rights Acts of 1957 and 1960 with only several exceptions the suits were filed against states, state and local officials, and local governing bodies. Letter from William J. O'Hearn, Acting Chief, Voting and Elections Section, Civil Rights Division, United States Department of Justice, October 1, 1963. ^"^74 Stat . 92 (1960), 42 U.S.C.A. Sec. 1971(c) (Supp. 1963) .

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105 This same technique of "suits by the Attorney General" would be expanded in the provisions of President Kennedy's proposed civil rights measure for 1963 to include the areeus of public accommodations and education. Section 204(a) of Title 11 of the Kennedy-proposed bill provided that "whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice" which would deprive any person of the right to nondiscrimination in places of public accommodation guaranteed by the bill, then the aggrieved person or the Attorney General could institute a civil action for preventive relief, "including an application for a permanent or temporary injunction, [or] restraining order." The Attorney General could bring the action if he certified that he had received a written complaiint from the aggrieved peirty and that in his judgment "the person aggrieved is unable to initiate and maintain appropriate legal proceedings" and "the purposes of this title will be materially furthered by the filing of an action. "^8 Subsection (c) of the same title and section goes on to enlarge upon the meaning of the foregoing subsection (a) by stating that a person shall be deemed unable to initiate and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person is unable, either directly or through other interested persons or organizations, to bear R. Doc. Ho. 124 18 (1963) .

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106 ^• yv the expenses of the litigation or to obtain effective legal representation; or when there is reason to believe that the institution of such litigation by him vrould jeopardize the employment or economic standing of, or might result in injury or economic damage to, such person, his family, or his property. '^ As to desegregation of public educational facilities, section 307(a) empowers the Attorney General to institute suits to further this objective. The Attorney General may institute an action when he receives a complaint which is (1) signed by a parent or group of parents to the effect that his or their minor children, as members of a class of persons similarly situated, are being deprived of the equal protection of the laws by reason of the failure of a school board to achieve desegregation, or "* ' ' (2) signed by cin individual, or his parent, to . . the effect that he has been denied admission to or not permitted to continue in attendance at a pxiblic college by reason of race, color, ~ religion or national origin. ^0 If the Attorney General then certified that in his opinion the complainants were unable to maintain the suit and that the institution of such a suit would "materially further the orderly process of desegregation, " he would be authorized to institute the suit, and might implead as "defendants such additional parties as are or become necessary to the grant of effective relief. Section 307 contains a definition in subsection (b) of what shall be deemed inability to 19lbid. 20ld. at 20. 21 lbid .

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107 maintain a suit identical to subsection (c) of section 204. This same section 307 further provides in subsection (c) that in any suit involving failure of a school board to achieve desegregation of a public college to either admit or allow the continued attendance of an individual, the Attorney General might intervene in such suit if he certified that, " in his judgment , the plaintiffs are unable to maintain the action for any of the reasons set forth in subsection (b)."^^ The substance of these proposals was included in the civil rights bill passed by the House in early February of 1964 and in the Senate version being debated in early May 1964. What will finally emerge from the legislative mill in 1964 and how much of the Kennedy proposals the new civil rights act will contain is, of course, open to con jecture.24 The point is that the technique utilized in connection with the suffrage has now been urged as a basis for enforcement in other areas of civil rights. 22id. at 21. 23 ibid . (Emphasis added.) 24The following bills introduced in the House contained proposals for suits by the Attorney General in regard to public accommodations and education which were identical to those in the Kennedy proposal: H.R, 7146, H.R. 7152, H.R. 7182, H.R. 7204, H.R. 7208, H.R. 7212, H.R. 7224, H.R. 6226, H.R. 7246, H.R. 7255, H.R. 7266, H.R. 7281, H.R. 7298, H.R. 7328, H.R. 7338, H.R. 7375, H.R. 7453, H.R. 7521. For the complete text of these bills see Hearings Before Subcommitt ee No. 5 of the House Committee on the Judiciary . 88th Cong., 1st Sess. ser. 4, pt. 1, at 649-873 (1963). [Hereinafter cited as 1963 Civil Rights Hearings, pt. 1 1 ,

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108 It will be recalled that the Eisenhower Adiainistration's 1957 civil rights bill had originally contained in Part III a provision which v)Ould have empowered the Attorney General to institute suits for injunctions against cuiy person who deprived or was about to deprive any person of any civil right. Eliminated from the final version of,, tlie bill, the provision is now making its way onto the statute books on a piecemeal basis. The Kennedy version of the civil rights bill, as submitted to Congress, also contained a provision authorizing the President to establish a Commission on Equal Employment Opportunity to prevent discrimination against employees or applicants for employment because of race, color, religion, or national origin by Government con• tractors, and by contractors cind subcontractors peorticipating in programs or activities in which direct or indirect financial assistance by the United States government is provided by way of grant, contract, loan, insurance, guareuity, or otherwise. The Commission shall have such powers to effectuate the purposes of this title as may be conferred on it by the President. The President may also confer upon the Conmiission such powers as he deems appropriate to prevent discrimination on the ground of race, color, religion, or national origin in government employment, 25 While this provision does not provide specifically for suits for injunctive relief, "such powers" as the President deemed "appropriate" to prevent racial discrimination in government employment just might conceivably be held to 25 h. r. Doc. No. 124 24 (1963) . (Emphasis added.)

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109 include the power to initiate such suits against, for example, the multitude of contractors and subcontractors who engage in work in which federal money is involved. Given the fact that Congress, under Article III of the Constitution, is vested with power to set the entire jurisdiction of the federal district courts, the interpretation offered is, of course, arguable. Whether such suits would be brought by the Coramission itself or the Attorney General, the effect would be the same— increased federal control through the federal courts over actions of individuals. The provisions regarding institution of civil suits by the Attorney General are already on the books in regeird to voting. In regard to pxiblic accoromodations and school desegregation, and possibly employment, we have similar proposals advocated in ciirrent civil rights measures.^' The eliminated provision in Part III of the Eisenhower Administration's civil rights bill, which would have given the Attorney General such broad powers in regard to civil rights suits, appcirently seems to be well on the way to acquiring 26The history of the Civil Rights Commission might furnish grounds for believing the Commission on Equal Employment Opportunity would want this power for itself. The Civil Rights Commission found in 1959 that "full and effective implementation of the Commission's policy in discharge of Commission responsibilities under law requires full and exclusive control of any necessary resort to the Courts by the Commission itself." 1959 Civil Ricfhts Report 139. 27ir]^e Commission on Equal Employment Opportunity was also included in the bills in note 24 supra .

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110 life by the process of accretion. The potential for federalstate conflict is obvious. ' ' . , Economic Coercion The federal government may now, through its Attorney General, bring civil suits to protect voting rights. We may see, in some ^f these suits brought by the federal government to protect voting rights, evidences of the scope and magnitude of the federal pervasiveness. The Civil Rights Act of 1957 contained, as pointed out in the previous chapter, a provision x^ich prohibited any person from intimidating, threatening, or coercing any other person for the purpose of interfering with that person's voting rights. Although only a small number of suits have been filed xonder this provision, the significance of several of these suits offsets the mere lack of numbers. In the summer of 1958 and 1959, in the Tennessee Counties of Haywood cind Payette, a stepped -up campaign to increase Negro registration emd voting met with a white primary in Payette County and with econranic reprisals of 28The Civil Rights Commission recommended in 1961 that Congress consider the advisability of authorizing the Attorney General to institute civil suits to prevent exclusions from jury service on account of race, color, or national origin. 1961 Report on Justice 113. 2971 Stat . 637 (1957) . 42 U.S.C.A . Sec. 1971(b) (Supp. 1963) . See also p. 75 fie note 43 supra . 30some twelve suits had been initiated by the federal government by the middle of 1963. 1963 Civil Rights Report 47-50.

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Ill various types against Negroes in both Fayette and Haywood Counties. 31 The white primary was eliminated through a federal suit early in 1960^2 but Negroes were still being punished for their suffrage activity by the eviction of tenant farmers and the refusal of local businesses to carry on their customary transactions with Negroes. Evicted Negroes set up a tent city and this, along with their general plight aroused sympathy throughout the nation. 33 The federal government initiated action under the Civil Rights Act of 1957 in the Fall of 1960 and, after involved proceedings in both the district court and the court of appeals, 34 v/as finally able to secure a consent decree of official judgment on May 2, 1962, which enjoined the defendants of Haywood County from engaging in ciny acts, including, but not limited to those specified below, for the purpose of interfering with the right of any other person to register and to vote for candidates for public offices, including Federal offices, or from engaging in any such acts or practices on account of the exercise of said rights: 3lGloster B. Current tells the story of the Hayvrood and Fayette County Negroes' struggle in "Which Way Out . . .?" 68 Crisis 133 (1961). 32 United States v. Pavette County Democratic Executive Commj.ttee, Civ. No. 3835, W.D. Tenn., April 25, 1960, 5 Race Rel. L. Rep . 421 (1960). 33Relief in the form of food and clothing \Tm sent in to Haywood and Fayette from various parts of the country. Teamster Local No. 945 of Clifton, N.J., for example, sent in 4,000 pounds of food and clothing. "Looking and Listening," 68 Crisis 100 (1961) . ^ ^, For a summary of these proceedings see "Elections." 6 Race Rel. L. Rep . 200 (1962) .

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112 1. Teinninating the employment of any person or altering the terms of such employment. 2. Refusing to sell goods or provide services for cash or credit to any person. 3. Refusing to lend money to any person. 4. Combining or conspiring among themselves or with other persons to engage in any of the conduct specified in the immediately preceeding three (3) sub-paragraphs, or counseling or advising other persons to intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce any other person by the application of economic penalties or otherwise. 5. From engaging in any threats, intimidation, coercion whether by eviction or threatened eviction or refusal to deal in good faith with them concerning their tenemcies in keeping with the usage and customs heretofore prevailing in Haywood County, Tennessee, of any of their tenants for the purpose of interfering with the rights of such tenants or other persons to become registered or to vote in Haywood County, Tennessee, and for punishment for having previously registered or voted, or engaging in any act or practice which would deprive the tenants of such right or privilege. An injunction against defendants in Fayette County, in identical terms to the above, was secured on July 26, 1962."^^ The over 160 defendants thus enjoined in the two counties included several banks in addition to various landlords, merchants, gasoline dealers, cotton ginners, wholesale grocers, etcetera. The federal government had reached down into the state and laid a direct hand upon all of them. "Free enterprise" did not include the freedom to use this 35 united States v. Beatv . Civ. No. 4065, W.D. Tenn., May 2, 1962, 7 Race Rel. L. Rep . 484 (1962) . The case of United States v. Bancroft , Civ, No. 4121, W.D. Tenn., v/as combined by the court with United States v. Beatv . 36 united States v. Atkeison, Civ. No. 4131, W.D. Tenn. July 26, 1962, 7 Race Rel. L. Rep . 486 (1962) .

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113 enterprise to retaliate against a man for voting or attempting to do so, according to the court. The court's decree did not explain just how it would discern which of the acts that might be committed in the future by the defendants were for the purpose of interfering with the right to vote and which were for other reasons. Presumably, any future act of any of the defendants which a Negro construed as unfriendly could be subject to judicial complaint as "intimidation" due to the complainant's having registered or voted. So fair as using eviction as a means of coercion was concerned, the Department of Justice had filed, on December 2, 1960, a motion for a tanporciry restraining order to prevent the defendant landowners from (1) evicting or threatening to evict, any Negro sharecropper of voting age in Haywood county occupied by such Negro unless the defendant shall first have filed a sworn statement setting forth in detail his reasons for the eviction .... (2) altering or threatening to alter the existing tenant farming or sharecropping agreement, including present financial arremgements , if any, with any Negro tenant of voting age in Haywood County . . . unless the defendant shall have at first filed a sworn statement setting forth in detail his reasons for the change in the existing tenant farming agreement. (3) engaging in any threats, intimidation, or coercion, or attempted threats, intimidation or coercion, of any nature, whether economic or otherwise, for the purpose of interfering with the right of any other person to become registered to vote in Haywood County, Tennessee, and to vote for candidates for federal office.^' 37Quoted in United States v. Beatv , 288 P. 2d 654 (6th Cir. 1961) .

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114 The district court denied this request by the United States -^^ and the action was affirmed by the court of appeals. Under this request, according to the Sixth Circuit Court of Appeals, a defendant "would be enjoined without a showing that his action in eviction or alteration of the tenancy was for the purpose of intimidating or coercing the tenant in the exercise of his right of franchise" and that the Government's request would "assume the defendant did violate the law and place upon him the burden to prove that he did not.""^ The court of appeals, however, did hold that in its judgment the United States was entitled to a preliminary injunction, enjoining and restraining the Isindowner -defendants . . . from 'engaging in any threats, intimidation or coercion or attempted threats, intimidation or coercion, whether by eviction or threatened eviction or refusal to deal in good faith with them concerning their tenancies, in keeping with the usage and custom heretofore prevailing in Haywood County, Tennessee, of any of their Negro sharecropper tenants, for the puxrpose of interfering with the right of such Negro sharecroppers, or other persons, to become registered or to vote in Haywood County, Tennessee, and to vote for candidates for federal office, or for punishment for having previously registered or voted, or engaging in any act or practice which would deprive the tenants of any such right or privilege. ^0 This injunction as we have seen was later made permanent .^-^ 38"Eiections, " supra note 34, at 202,. 39 united States v. Beatv. 288 F. 2d 654, 657 (6th Cir. 1961) . 40 lbid . 41 united States v. Be at v . Civ. No. 4065, W.D, Tenn., May 2, 1962, 7 Race Rel. L. Rep . 484 (1962).

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115 As has been pointed out in subsequent comment on this case, the federal government had "no legitimate interest in discovering vhv a given Negro was evicted except as to determine whether or not the eviction was related to voting rights . '"^^ Yet under its statutory authority the federal government was in effect broadening its legislatively defined interest to inquire deeper into private business relationships in its quest to eliminate discrimination. The only possible parallel for the Haywood and Fayette County cases VTOuld, of course, be the Civil Rights Cases and the parallel would be far from exact. The Haywood and Fayette County cases are not simple. They do not represent a relatively straight forward action by the federal government to invalidate a state law or action under the fourteenth or fifteenth amendments. They do not represent a relatively simple action by the federal government against state officers, although several such officers were indeed among the over 160 defendants. The Haywood and Fayette County cases are complex actions talcen against private persons and involving an inquiry into the motivations of those persons. That no citizen should be able to influence the suffrage of another through economic coercion is a principle that few will argue. ^^Hote, "Private Economic Coercion and the Civil Rights Act of 1957," 71 Yale L. J . 537, 548 (1962). (Emphasis added.) 43i09 U.S. 3 (1883) .

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116 It is equally apparent, hov^ever, that the cases, even though entered on consent decree of final judgment at the district court level, represent a striking extension of federal authority, The total extent of federal government activity in Tennessee under the current civil rights statutes was in Haywood and Fayette Counties. No additional suits in Tennessee had been initiated at the close of 1963. This may be due in part to the fact that the state had no severely restrictive voter registration law. Age, residency. United States citizenship and non-conviction of a felony are the only registration requirements.'^^ The Civil Rights Commission has indicated that since "nearly 40 percent" of Tennessee's voting age Negroes are registered, Tennessee may be dropped from the Commission's list of states where the Negro's access to the ballot is impeded. The question of how much the absence of additional voting suits, and the presence of such a significant Negro registration figure, can be said to be due to improved race relations is open to question, however. This is paorticularly so in the areas where the Justice Depcirtment secured its injunctions. In July of 1963, for example, it was reported ^^Consequently the minimal requirements have helped the NAACP to make considerable progress in its voter registration campaigns in Tennessee. See "Along the N.A.A.C.P. Battlef ront , " 69 Crisis 412 (1962). ^5 i963 Civil Rights Report 21.

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117 that violence was only ncirrowly averted in Fayette County as armed Negroes and whites confronted each other across a highway and that . this near clash culminated in an evening of harassment by segregationists as Negro and white voter registration vrorkers were chased down on the highways, automobiles were tampered with, and a visiting attorney was nearly run off the highway. The registration drive followed an announcement that a few Negroes will run for office in the county. In the Tennessee cases, then, and a similar and later case arising in Louisiana, the federal government has succeeded in enjoining private economic pressures, coercion, and threats as a method of dissuading Negroes from registering and voting. Enjoining State Criminal Proceedings A second significant case^^ which demonstrates the sweep of the federal government's power under the 1957 civil "^^ Birmingham World . July 27, 1963, p. 4. ^ "^ United States v, Beatv , United States v. Barcrof t. Civ. Nos. 4065 and 4121, W.D. Tenn., May 2, 1962, 7 Race Rel. L. Rep . 484 (1962) ; United gtates v. AtXeison , Civ. No. 4131, W.D. Tenn., July 26, 1962, 7 Race Rel. L. Rep . 486 (1962) . "^^n United States v. Deal . Civ. No. 8132, W.D. La., Feb. 3, 1961, 6 Race Rel. L. Rep . 474 (1961) , the federal government brought action against various persons— cotton gin operators, sundry business operators, and the sheriff of East Ccirroll Parish, Louisiana — to enjoin their exerting pressure upon a Negro, Frances Joseph Atlas, who had testified concerning his efforts to register to vote before the Civil Rights Commission hearing in Louisiana. Defendant businessmen had, in effect, refused to gin Atlas' cotton or to engage in other business transactions with him. 4 ^nited States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert, denied . 369 U.S. 850 (1962).

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118 rights act's prohibition against intimidating, threatening, or coercing any person for the purpose of interfering with his voting rights^^ arose from events transpiring in Tyler town, Mississippi. In August of 1961 one John Hardy, a Negro, came to Tylertown for the purpose of working with local Negroes to increase their voter registration. He conducted classes in a local church for that purpose. In September of that year Hardy accompanied two prospective registrants to the office of the registrar where an altercation ensued between Hardy and Registrar Wood which ended with Hardy being ordered from Wood's office and then struck on the head with a pistol by the registrao:.^^ Hardy sought out the sheriff to report the incident and was thereupon arrested by the sheriff for disturbing the peace and inciting an uprising I He was scheduled to appear before a local Justice of the Peace on Septertiber 22 and was released on bond. 5O7I Stat . 637 (1957), 42 U.S.C.A. Sec. 1971(b) (Supp. 1963) . SlAccording to Wood, while he was talking to the two applicants Hardy "charged in from the outer office" and demanded in a "loud, belligerent voice that I had to give these people the test," He "was dressed in Bermuda sliorts, had long tan stockings on and had a staring, belligerent and contemptuous glare." Brief for the Appellee, App. "D", p. 2. United States v. Wood . 295 F. 2d 772 (5th Cir. 1961), cert, denied . 369 U.S. 850 (1962) . On the other hand. Hardy "claimed that he discussed in a calm, normal tone with Wood the fact that Wood was obligated to register Peters and Wilson," the two individuals whom Hardy had taken to the Registrar's Office. Brief for the Appellee, App. "C", p. 3.

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119 The case reached the Fifth Circuit Court of Appesds when the United States appealed from a denial of a temporary restraining order, pending a hearing for a preliminary injunction, by a federal district court judge. The Government sought to restrain the prosecution of Hardy before the local Justice of the Peace on the grounds that this prosecution was designed to, and would, intimidate other Negroes in the county from attempting to register and vote. In other words, it ouiked tb<|t court of appeals to en join a state criminal proceedincr , a most unusual process. Crucial to the federal government's case v/as the interpretation of Title 28, section 2283, of the United States Code which says that a court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or v/here necessary in aid of its jurisdiction, or to promote or effectuate its judgments. The Justice Department contended that this statute did not apply where the United States was bringing the suit. The court of appeals held that this question had been before the Supreme Court in Leiter Minerals, Inc . v. United States^ -^ and that the Supreme Court had expressly construed section 2283 as inapplicable to a suit brought by the United 52por an escpanded discussion of federal injunctive power in relation to state proceedings, see Note, "Federal Power to Enjoin State Court Proceedings," 74 Harv. L. Rev . 726 (1961) . 53352 U. S. 220 (1957) .

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120 States.^'* It rejected an attempt on the part of the appellees to distinguish the Leiter case on the grounds that Leitey , first of all, was concerned with a protection of federal property rights and the enjoinment was of state civil proceedings, not criminal; and, secondly, that the United States in the Woods case was bringing suit on behalf of a class of private citizens to enjoin state criminal proceedings. In refuting this first contention the court said: As far as the type of proceeding is concerned , the statute must be read as applicable to all state proceedings . Admittedly, this policy against interference with state criminal proceedings is stronger than tliat v/ith respect to state civil proceedings but this policy is not one of statutory derivation. It applies even where section 2283 does not. Thus the type of state court proceeding may not be used as a ground for distinguishing the Leiter Minerals construction of section 2283. It is also difficult to see how the nature of the interests the United States asserts can make a difference as long as the United States asserts them. The method of construction used in Leiter Minerals is that the statute will not be imputed to apply to the United States in the absence of some congressional indication to the contrary. We are unaware that Congress even considered the applicability of section 2283 to the United States, much less that it distinguished between the type of rights the United States may happen to assert. 55 To appellee's second contention— which was that since the United States was asserting private rights in this case, applying section 2283 would not lead to the frustration of ^" Hjnited States v. Wood . 295 F. 2d 772, 778 {5th Cir. 1961), cert, denied . 369 U. S. 850 (1962). 55jd.. at 779. (Emphasis added.)

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superior federal interests within the meaning of Leiter and that the lack of a federal interest precluded the Attorney General from bringing suit in the first place— the court cited the opinion of the Supreme Court in United States v. Raines . In Raines, the Court had said: It is urged that it is beyond the power of Congress to authorize the United States to bring action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it is perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.^' "Thus," said the court of appeals in Wood , "whatever doubt there may have been as to the right of the United States to bring the suit or to the extent of the federal interest involved has been put to rest."^^ It went on to add that in those cases where the United States had instituted the suit it must be assumed that a violation of a national interest had taken place, and such a judgment "should not be lightly put aside by the courts. "^^ The court of appeals then remanded the case to the district court with instructions that it should grant the Government's request for a temporary restraining order. At 56362 U. S. 17 (1960) . S'^Id. at 27. 58 united States v. Wood , 295 F. 2d 772, 779 (5th Cir. 1961) , cert, denied . 369 U. S. 850 (1962). 59id. at 783.

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122 the time of this writing no further developments in this case had been reported. In the Haywood and Fayette County cases, the federal government had moved against econoiaic coercion by private individuals where suffrage was involved. In Wood, resort to court process was successfully had to restrain a state criminal prosecution because of the effect such prosecution might have on potential Negro voters . Although clearly state action is involved in Wood, the sophisticated enlargement of federal authority under a combination of the 1957 Civil Rights Act and section 2283 of Title 18 of the United States Code is evident and extremely important. Enjoining a School Board But there is yet more to the astute utilization of the 1957 act's provision dealing with voter intimidation.^^ In United States v. Board of Education of Greene Countv . Mississippi . the federal government sought a mandatory injunction to force the rehiring of a teacher whose one -year contract the school board did not renew at the conclusion of the contract period. The federal government alleged that the teacher had not been rehired because of her participation in a voting suit which the Justice Departn^nt brought in ^^71 Stat . 637 (1957), 42 U.S.C.A. Sec. 1971(b) (Supp, 1963) . ^^Civ. No. 1729, S.D. Miss., Aug. 30, 1962, 7 Race Rel. L. Rep . 770 (1962) .

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123 adjoining George County. As a result of that voting suit the teacher and others had registered and voted. The federal government alleged that the action of the school board in refusing to rehire the teacher constituted "intimidation and coercion" not only of the teacher but of other Negroes who might be inclined to register and vote in Greene County. The federal district court dismissed the government's complaint saying that there was "nothing but tenuous inferences from circumstantial evidence even tending to support the conclusions relied on by the plaintiff s. "^^ In reaching its decision the court was impressed by the following facts brought out in the case: (1) The teacher had applied for a job at another school before she knew she was not to be rehired at her former school; (2) No one in George County had complained to the defendants concerning the political activities of the teacher; (3) The Board had refused to hire other teachers in former years who were involved in law suits; (4) The teacher learned of the suit's being filed from a newspaper in Mobile, had not attempted to find out why she was not rehired, and testified that she did not know why she was not rehired at her school; (5) There was uncontradicted and xanimpeached testimony that the refusal to rehire the teacher was not designed to intimidate other Negroes from registering or voting; (6) No Negro had been ^2j^. at 773.

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124 refused registration who had applied during the current term of the Greene County Registrar which began in 1956. The teacher, said the district court, was not fired from her job; the one -year contract had been fully performed and it was "the universal rule that it is not within the province of any court to malce a contract and then enforce it,"^^ The court also pointed out that the Supreme Court of Mississippi had held in Lott v. State^ '^ that a mandamus could not compel a contract with a teacher whom the school superintendent did not recommend for "mere personal or political reasons. "^^ The decision is currently on appeal by the Justice Department to the Fifth Circuit Court of Appeals, The question of the federal government's authority to order the rehiring of a teacher whose contract has expired is still open, but the reversal of the federal district court would certainly broaden even more the concept of what is included in the meaning of the term "intimidation" as used in the 1957 act. Carried to its logical extreme, reversal of the lower court would mean that a local school board in Mississippi could not, probably, refuse to renew the contract of any Negro teacher who attempted to register to vote, who registered, who attempted to vote, or who voted without facing ^^Id. at 772. ^'*239 Miss. 97, 121 So. 2d 402 (1960). ^^ united States v. Board of Education of Greene County. Civ. No. 1729, S.D. Miss., Aug. 30, 1962, 7 Race Rel. L. Rep . 770, 772.

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125 the potential power and resources of the federal government in a federal court suit. Parenthetically, however, the situation would not arise had not the state of Mississippi and its officers been so obstinate in the matter of registering Negro citizens to vote.^^ Havwood and Favette . Wood, and Greene County — these cases instituted by the Justice Department under the 1957 Civil Rights Act represent a highly sophisticated enlargement of federal protection based on federal statute and positive federal action of the right to suffrage unrestricted by virtue of race. They constitute elements in the ever heightening federal-state confrontation. So long as such states obstinately consider race in the suffrage process, such clashes v/ill increase federal intervention and the expansion—both by specific legislative language and interpretative implementation — of federal authority. ^%he Civil Rights Commission found that in sixtynine counties in Mississippi where Negroes comprised 37.7 percent of voting age population, only 6.2 percent of the voting age Negroes were registered. In thirteen coiinties no Negroes at all were found registered. 1961 Re port on Voting 108.

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CHAPTER V TOWARDS UNIFORMITY The federal government through actions of the Justice Department based on federal statute has not only broadened its sphere of control and concern in the electoral process by moving on what the covirts may interpret to be "intimidation" or "coercion" interfering with a person's right to vote under the 1957 Civil Rights Act, but state regulatory aspects of the electoral process itself have received federal attention. Federal expansion has not been unprovoked and capricious, for even a cursory examination of any of the Civil Rights Commission's reports or of the less emotional record of federal litigation in the suffrage field shows that remedial action was, and continues to be, needed. Federal expansion is the result of default on the part of a few states. The point has been made that federal-state conflict over suffrage regulation is a kind of vicious circle. As pressure increased, particularly since 1957, for a racially nondiscriminatory grant and exercise of the suffrage, the states where discrimination against would-be voters of the Negro race was most flagrant resisted this pressure. In turn, the federal government increased its efforts to

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127 eliminate race as a consideration in the franchise. Federal action spurred more resistance on the part of the states and the result was a continuing clash of the two "sovereignties." This clash, as history deitKinstrates , despite any profuse present day rhetoric to the contrary, was not and is not a clash between equals. There is ultimately but one outcome; the federal government will prevail. Judging by the number of federal voting suits filed and the activity of the state legislatures, the "hard core" of resistance is composed of the states of Alabama, Louisiana, and Mississippi. It is in these states that the bulk of federal litigation in regard to voting has occurred. ^ Georgia hovers on the periphery of this group and was the site of the first suit^ under the Civil Rights Act of 1957.^ Only three additional suits, however, have been filed in Georgia by the United States as of the end of 1963. Of these three Georgia suits, one involved intimidation of applicants for registration^ and the other two involved successful actions to eliminate segregated polling places, segregated lists of voters, and tabulation of returns on a racially designated ^ 1963 Civil Rights Report 16-22. ^ United States v. Raines , 172 F. Supp. 552 (M.D. Ga. 1959n ^Act of Sept. 9, 1957, 17 Stat . 634. ^ United States v. Mathews . Civ. No. 516, M.D. Ga. filed Aug. 13, 1962.

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1 128 basis in tv«o counties.^ Another suit successful in doing away with segregated polls was brought about by private citizens in Dougherty County.^ The Justice Department's voting suits in Tennessee were discussed in the preceeding chapter. Only in these five states were federal voting suits filed during 1957-1963."^ Writing in 1953 Will Maslow and Joseph Robison, of the Commission on Law and Social Action of the American Jewish Congress, concluded that "the major battles for Negro enfranchisement have been won" cind that what remained, among other things, were "skirmishes with registration bocirds."^ Maslow and Robison, and other persons interested in the suffrage struggle at that time, did not foresee that in the "hcird core" areas of resistance to Negro enfranchisement — Alabama, Louisiana, and Mississippi— the "skirmishes" with the registration boards would develop into protracted guerilla ^ United States v. Jones County Democratic Executive Committee , Civ. No. 1905, M.D. Ga. June 26, 1963, 8 Race Rel. L. Rep . 1091 (1963) ; United States v. Bibb Countv Democratic Executive Committee , 222 F. Supp. 593 (M.D, Ga. 1962) . ^ Anderson v. Courson. 203 F. Supp. 806 (M.D. Ga. 1962) . 7lt was alleged at the House civil rights hearings by Sidney Zagri, legislative counsel for the International Brotherhood of Teamsters, that voting suits were filed on a "selective basis;" that is, the absence of suits in a particular county or state depended upon support of the administration by a state's Senators and Congressmen. For a discussion of this point see 1963 Civil Rights Hearings , pt. 3, at 2076. %laslow and Robison, "Civil Rights Legislation and the Fight for Equality," 20 U. Chi. L. Rev . 363, 379.

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129 warfare. These states' registration boards, usually with the sympathy and support of the state legislature as well as the local white population were capable of engaging in a bewildering variety of dilatory and discriminatory practices to frustrate Negro applicants for voter registration. ^ Standing behind the ramparts of constitutional interpretation, citizenship, and literacy tests, •'•^ the local boards could laugh a voter registration drive to scorn. The federal government found that it was contesting with a hydra. Legally, discriminatory suffrage provisions or practices based on state action— whether by state legislative enactment, state constitutional provision, or state or local executive action — were subject to invalidation under the fourteenth and fifteenth amendments of the federal constitution (or, possibly, conflicting federal statutes) when proper cases were brought testing such state actions. Achieving success in enjoining a particular disciminatory practice, or a group of than in one peurticulcur county, did not necessarily mean that the particular practice or practices would be abandoned in another county or counties without the institution of more federal or private litigation. The %ee, for example, 1961 Report on Voting 137-38. lOThe three types of tests, although obviously capable of being linked together, are not legally nor in fact the same thing. The fact that each type of test is basically different from the other requires that the legal struggle over each one be accorded separate consideration in the remaining portion of this chapter.

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130 result, as assistant Attorney General Burke Marshall complained, was a "time -consuming multiplicity of suits. "-^^ The advantage of a broader method of procedure than the "time-consuming," county-by -county approach was emphasized by Berl I. Bernhard, staff director of the Civil Rights Commission. Bernhard referred to the Justice Department's filing of a suit against the state of Louisiana's constitutional interpretation test"*-^ as "a most significant development" for if the government were successful in this action, a precedent will be set for eliminating discriminatory voter requirements directly rather than through countyby-county litigation .... Most important, however, is that the burden of proof now required of the Government in the many cases which involve discrim ination under the same law will be eliminated. Finally, discriminatory administration of non -discriminatory laws, establishes in some of the cases in any given state, may support a suit to have such laws declared unconstitutional. To the extent that this may be possible the Government will overcome the geographical limitation built into the 1957 Act, which provides relief only within the state administrative unit involved. Registration is almost universally administered in each county, with the result that the Government must file suits in adjoining counties. The point is this. Under the 1957 Cj.vil Rights Act, since most states conduct voter registration on a county-bycounty basis, the federal government was almost required to ^^arshall, "Federal Protection of Negro Voting Rights 27 Law & Contemp. Prob . 455, 461 (1962). ^2 united States v. Louisiana . Civ. No, 2548, E.D. La., filed Dec. 28, 1961. ISfiernhard, "The Federal Fact-Pinding Experience— A Guide to Negro Enfranchisement," 27 Law & Contemp. Prob . 468, 475. (Emphasis added.)

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raove in each county. By moving directly to invalidate a state act in its statewide application, as in United States V. Louisiana, the Justice Departinent hopefully could short circuit county-i>y-co\inty recalcitrance. The complaint of Assistant Attorney General Marshall and staff director Bernhard points the obvious fact that the American federal systm was not designed for men in a hurry even if their ultimate objective is considered desirable. The existence of local governing bodies, reflecting local sentiment, is an impediment to rapid, sweeping change-whether for good or ill. And it is not incorrect to say that such was the general intent of the "check and balance "conscious fraraers of the federal Constitution. The "precedent" hoped for by staff director Bernhard came a little over a year later when on November 27, 1963, a three-judge federal district court declared Louisiana's constitutional interpretation test invalid . President Kennedy's proposals for a civil rights bill in 1963 also reflected concern with the slowness, the "timeconsuming" process, involved in the Justice Department's voting suits. Included in the provisions relating to voting in the Kennedy bill was one which would have relieved the Government to a great extent of the onerous burden of the ^ ^nited States v. Louisiana . 225 F. Supp. 353 (E.D. La. 1963), appeal docketed, 32 U.S.L, Week 3393 (U. S. May 5, 1964) (No. 1073).

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132 "multiplicity of suits /'^^ allowing facilitated registration of persons living in cireas where the government had requested from the federal courts a finding of a pattern or practice of discrimination against would-be voters because of their race or color. Upon filing its voting suit complaint containing a request for a finding of a pattern or practice of discrimination, and alleging that less than fifteen percent of the total number of persons of voting age of the same race as the persons alleged in its complaint to have been discriminated against v/ere registered, the federal government \i?ould simply by-pass the local registrars and their discriminatory tactics. After the filing of such a suit and request, any person living in the area subject to the pattern or practice of discrimination, who was of the same race as the persons named in the federal government's complaint as victims of discriminatory acts, would be entitled to an order declaring him qualified to vote. To get this order the applicant would have to offer proof that: (1) he was qualified to vote under state law; (2) since the filing of the proceedings he had been, under color of law, denied or deprived of, the opportunity to register and vote, or had been found unqualified to vote by emy person acting under color of state law. This order would be "good for any Federal or State election held within the longest period for which such applicant could have been 'H. R. Doc. No. 124 15 (1963)

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133 registered or other\irise qualified under State law at which the applicant's qualifications vrauld under State law entitle him to vote."!^ While this proposed addition to the civil rights statutes protecting voting rights is not a direct diminishing of state power to regulate the electoral process in the sense that invalidation of an interpretation test, a voter application form, or the ratification of a constitutional amendment flatly prohibiting literacy tests are, it accomplishes much the same thing. The primary object of such requirements as literacy and interpretation tests in states inclined to deny suffrage to the Negro is to furnish the registrar with a discretionary device v/ith which he can effectively block the registration attempts of Negro applicants while at the same time permitting whites with equivalent qualifications, or less, to register. Tlaese devices would be rendered useless if a Negro, x/ho could qualify to vote under the letter of state law and was prevented only by the subjective grading ^^ Ibid . "^To use registration applications as an example, it was found in one case that over a five and one-half year period an Alabeima board of registrars registered over ninetysix percent of the white applicants and rejected seventy-five percent of the Negro applicants for errors and omissions on the required forms. Among the rejected Negroes six nad Master's degrees, 152 had four years of college, and 222 had some college education. Also included in this group were 108 Negro public school teachers. United States v. Pent on , 212 P. Supp. 193, 196 (M.D. Ala. 1962) ,

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134 of his "interpretation," or his "literacy," or his application form by the registrar, could procure such an order as described above entitling him to vote in state or federal elections. This, admittedly, is approaching the problem the long way around and is something of a moderate approach in a time when moderation is deemed "tokenism" and anything short of full speed is often deemed much too slow. Since the date of the Kennedy proposals, June 19, 1963, significant events have occurred on the suffrage front which indicate that a more direct approach to elimination of the major discriminatory devices in the hands of tha registrars may now be at hand. Involved is a broad attadk on the validity of state syiffraae yecmlation by the federal government in the federal courts, rather than leaving the devices standing and admonishing and enjoining the registrars not to use them in a discriminatory manner. Statev/ide invalidation of a state suffrage regulation by the federal courts at once eliminates the "time-consuming" county -bycounty approach. It is direct, efficient, and admits of no capricious interpretation by registration officials, although, of course, a general state law or constitutional provision once struck down may be replaced by another! Tlie decision in United States v. Louisiana , invalidating that state ' s required constitutional interpretation test, is the first step in this more direct approach. 18225 P. Supp. 353 (E.D. La. 1963).

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135 The Demise of the Louisiana Interpretation Test Article VIII, Section 1(d) of the Constitution of Louisiana, as amended in 1960 at the behest of Governor "You Are My Sunshine" Davis, provided, in part, that a voter should be a person of good character and reputation, attached to the principles of the Constitution of the United States and of the State of Louisicina, and shall be able to understand and give a reasonable interpretation of any section of either Constitution when read to him by the registrcu:, and he must be v;ell disposed to the good order and the happiness of the State of Louisiana and of the United States and must understand the duties and obligations of citizenship under a republican form of government. The United States instituted suits against the requirements of "understanding" and "interpretation" on the grounds that they were "violative of 42 U.S.C.A. section 1971, the Civil Rights Act, and the Fourteenth cind Fifteenth Amendments Now it must be made clear that what was involved was a "constitutional interpretation" — not a literacy or a citizen ship test. The prospective voter under the Louisiana requirement, had to give a "reasonable interpretation" of sections of the Louisiana and federal constitutions. Under this requirement, he did not have to read or write. The important point is that, as amended in 1960, the test previously applicable only to illiterates and a way for illiterates to qualify to vote, now was applicable to every registrant. ^^I^. at 358

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136 The three -judge federal district court rendered a lengthy decision, upholding the Justice Depeirtment ' s contentions, which was a skillful combination of history and law. Before embarking on a detailed study of the history of Louisiana's constitutional interpretation test, the court felt compelled to review the powers of the federal government in regard to suffrage. "There is no license," said the court, "for the loose statement that in our constitutional system the qualification of voters is 'exclusively' committed to the states, "^^ Three provisions of the Constitution, the court stated, denied such power to the states . The first of the provisions was the fifteenth cunendraent. This amendment, said the court, was "uncomplicated with phrases freighted with history back to Magna Carta" and imposed upon the courts " the unshirkable duty of incniirina into legislative purpose and striking down a fair seeming law that, 'on account of race', is in fact a discriminatory device to deprive Negroes of their vote."^-'The second provision was the fourteenth amendment which through the "equal protection" clause prohibited discriminatory voting qualifications. The third provision was Article I, section 4 of the Constitution which empowers Congress to "make or alter" the "Times, Places and Manner of holding 20lbid. 2^Id, at 359. (Emphasis added.)

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137 elections for Senators and Representatives . . . prescribed in each State by the Legislatxire thereof." This grant of congressional authority, the court pointed out, extends to registration, a phase of the electoral process unknoxvn to the Pounding Fathers but today a critical, inseparable part of the electoral process which must necessarily concern the United States since registration to vote covers federal as well as state elections. 22 Not content to stop at this point, the court enlarged upon these federal credentials in regeurd to suffrage with a recitation of specific authority: The "necessary and proper clause," Article I, Section 8, Clause 13, gives Congress full authority to legislate under Article I, Section 4 (or any other constitutional grant of power) ; the Fourteenth Amendment, Section 5, grants power to Congress to pass "appropriate legislation" to prevent the denial of equal protection of the laws; the Fifteenth Amendment, Section 2, specifically grcints power to Congress to pass "appropriate legislation" to guarantee that the right to vote shall not be abridged on account of race . . . The ' Supremacy Clause, Article VI, subordinates any conflicting state legislation to congressional legislation. The totality of implied powers these sections grant Congress are full authority for Congress to enact the Civil Rights Act or other appropriate legislation to regulate elections (including registration) under Article I, Section 4, and to protect the integrity of the electoral process under the Fourteenth and Fifteenth Amendments . 2 3 Having thus made crystal clear its conception of the federal power in regard to elections, the court launched 22 i33id . Registration was unknown in 1789 because it was unnecessary. Because communities were small, voters were personally known to election officials. 23id. at 360

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138 into an exhaustive study of Louisiana history to ascertain the true reason for the interpretation requirement saying, ho\fevex, as it did so, that "to Louisianians familiar with the history of their state, it must seem an exercise in futility for the Court to labor the proof of the true reason for the xindorstanding and interpretation test. "24 After having examined the milieu of post Civil War Louisiana, the various Louisiana constitutional conventions, including the convention of 1921, which was responsible for the original version of the interpretation test, and the statements by observers of25 and participants in^^ the constitutional conventions, the court concluded that the interpretation test was, in fact "another grandfather clause" with its purpose "rooted in the same history. "27 The interpretation test, in the words of the court, had the same objective the delegates to the Constitutional Convention of 1898 envisaged for the 2^ij^. at 361. 25por example a newspaper report of the day concerning the interpretation test identified it as "an ordinance designed to plug the hole shot through the suffrage provision when the United States Supreme Court declared the famous 'grandfather' clause invalid." Quoted id . at 376. 2^Near the end of the Constitutional Convention of 1898, the one which adopted the grandfather clause, the President of the Convention exclaimed: "What care I whether it be ridiculous or not? Doesn't it meet the case? Doesn't it let the white man vote, and doesn't it stop the Negro from voting, and isn't that what we came here for?" Quoted id. at 374. 2'7id. at 380.

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139 grandfather clause. It is capable of producing the same effective disfranchisement of Negroes today that the grandfather clause produced sixty-five years ago. 28 Furthermore, although the original version of the test had been adopted in 1921, it was seldom used until after 1954, at which time, due to the demise of the white primary in 194429 and the mounting pressures of the "Negro Revolution" after the Second World War, Negro interest in voting began to increase. Once it was applied against the Negro, however, the test produced devastating results. 30 In regard to the contention by Louisiana that its interpretation test measured only native intelligence, the court refuted this argument by pointing out that there was nothing in native intelligence which would enable a person unfamiliar witla constitutional law to give a reasonable interpretation of technical concepts found in a constitutional document. The Louisiana understanding and interpretation test, said the court, "as it is administered and as it was designed to be administered , . . bears no relation to reasonable voting requirements" and 2 8lbid . ^^ Smith V. Allvnriqht , 321 U.S. 649 (1944) 30ln the tv/enty-one peirishes x-zhere it was used Negro registration declined from 24,361 before the interpretation test was put into effect to 10,351 by August 31, 1962. United States v. Louisiana, 225 F. Supp. 353,381 (E.D. La. 1963) , ;^pneal docketed , 32 U.S.L. Week 3393 (U.S. May 5, 1964) (No. 1073) . 3^ yd . at 386.

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140 short of a government of philosopher kings --and no one has ever described Louisiana government in such terms --there is no correlation between an ability to interpret anv section of the Louisiana constitution a registrar may thrust at an applicant for registration and a legitimate State interest in an informed electorate. 32 In relegating the Louisiana constitutional interpretation test to the same dustbin of suffrage history containing the grandfather clause and the white primary, the court issued a plain caveat in regard to restrictive and disfrcinchising suffrate regulations. It said: Some laws may never win constitutional approbation, because they have no rational relation to a legitimate governmental objective and because the unrestrained discretion without standards they grant an officeholder makes them incurably subjective, unreasonable, and incapable of equal enforcement. The understanding and interpretation test is such a lav/. Although the vote abridging purpose and effect of the test render it per se invalid under the Fifteenth Amendment, it is also per se invalid under the Fourteenth Amendment. The vices cannot be cured by an injunction enjoining its vinfair application. The necessary relief, therefore, is to declare the test invalid cind enjoin its enforcement in Louisiana. -^3 ' -^•^ yd . at 391, (Emphasis added.) Just over three months after the decision in this case, however, another three -judge federal district court gave "constitutional approbation" to Mississippi's requirement that prospective voters be able to give a "reasonable" interpretation of selected sections of the state constitution. United States v Mississippi . 32 U.S. L. Week 2504 (S.D. Miss. Mar. 6, 1964), appeal docketed. 32 U.S. L. Week 3401 (U.S. May 11, 1964) (No. 1097) . ^e note," said Judge Ben F. Cameron," ... these differences between United States v. Louisiana and the case here presented, it being there contended: "1. The Louisiana Board of Registration has the power to remove at will any pcirish registrauc of voters;

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141 The Citizenship Test There is a second aspect to this very importeint case. By resolution and state statute , a citizenship test had been 2. The parish registrar's whim alone determines who will be tested and who will be registered without testing; 3. No written records were made in most test cases, thus precluding the use of such records for check or review purposes; 4. The Louisiana registrar is vested with 'raw power'; 5. The test prescribed by Louisiana's law has no rational relation to a legitimate governmental objective; it vests unrestrained discretion in the registrar; it is subjective, unreasonable, and is incapable of equal enforcement." United States v. Mississippi , supra at 2504. Judge Cameron v/ent on to say that "their opinion [in United States v. Louisiana ] equates the Louisiana constitutional provision with Alabama's Bo swell Amendment which was condemned in Davis v, Schnell . 336 U.S. 933. For the reasons set out in Darby v. Daniel . 168 F. Supp. 170, and because of the legal and factual differences noted above, we cannot agree that Mississippi's Section 244 [sic] presents the same questions." United States v. Mississippi , supra at 2504. In Dcirbv v. Daniel . 168 F. Supp. 170 (S.D. Miss. 1958) the court had found that: (1) the requirement of a "reasonable" interpretation did not vest arbitrary or uncontrolled discretion in the registreo: since there was machinery for an administrative appeal from the decision of the registrar; and (2) the language of the requirement was not so vague and indefinite as to furnish no ascertainable standard of action. In regard to this last point the court in Darbv — Judge Cameron rendering the decision — had said: "To attack the leinguage ... as being too vague and indefinite is to ignore a long and unbroken line of decisions approving legislative enactments whose phraseologies are far more nebulous and difficult of ascertainment than the relatively simple terms before us." Darjjv V. Daniel, supr^ at 183. In addition, the court in Darbv did not think the Mississippi requirement was unconstitutional on any theory that its purpose was to enable the registrars to discriminate against Negroes. The contrast in this respect with the opinion in United States v. Louisiana , just five years later, is remarkable.

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142 added to the Louisiana suffrage labyrinth, apparently as a sheet to the windward if the constitutional interpretation requirement should run afoul of federal constitutional requirements. A constitutional amendment to the same effect was added in November 1962. In addition to declaring ' Louisiana's constitutional interpretation test invalid in United States v. Louisiana, the three -judge federal district court also enjoined use of this new Louisiana citizenship test in those parishes in which the interpretation test had been employed.-^ The court said: A nondiscriminatory re -registration of all voters in the State would be the only completely fair and effective means of clearing away the effect of the interpretation test and of applying the new citizenship test. In a general registration the State could require any new, reasonable, non-discriminatory qualifications. However, this Court adheres to the principle that only to the extent clearly necessary should federal courts interfere v/ith established state and local procedures. Accordingly, as to the citizenship test , we restrict our order to the twenty-one parishes in which the interpretation test was used and we cast our order so as to afford an option to the State. . . . However, until there is a general re• registration of all voters in a parish where the test was used, or until the discriminatory effect of the test has been vitiated to the satisfaction of the cour^^ vre enjoin the use of the citizenship 34The parishes were: Bienville, Claiborne, DeSoto, East Carroll, East Feliciana, Franklin, Jackson, LaSalle, Lincoln, Morehouse, Ouachita, Plaquemines, Rapides, Red River, Richland, St. Helena, Union, Webster, West Carroll, West Feliciana, and Winn. 3 ^nited States v. Louisiana . 225 F. Supp. 353, 397 (E.D. La. 1963), appeal docketed . 32 U.S. L. V7eek 3393 (U.S. May 5, 1964) (No. 1073).

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143 The object here, of course, was to prevent the state from "freezing" the past discrimination of the unconstitutional interpretation test by use of the new citizenship test which would in the meiin apply to Negroes . The three-judge federal district court clearly recognized problems raised by its decision for American federalism, for it saidi This is a suit in equity. Its purpose is not to punish Louisiana for past activities. Such a purpose would be presumptuous on the part of the Court and offensive to principles of 2\merican federalism. Neither is it merely to prevent continued enforcement of unconstitutional provisions of Louisiana law. The prime purpose is to provide a remedy for a federally protected right by giving equitable relief: opening the rolls for those to v/hom the rolls were illegally closed, those v/ho v/ere directly discriminated against by rejection of their applications and those who were inhibited from attempting to register because of known humiliating discriminatory practices of registrars. Finally, we repeat that this decision does not touch upon the constitutionality of the citizenship test as a state qualification for voting. Our order forbids enforcement of the citizenship test until Negro applicants can be judged by the same standards used in qualifying those persons already registered. In that sense the court is cooperating with the State in laying a predicate for the fair application of a voting qualification vAiich the State is now endeavoring to convert to an objective test with ascertainable, although unusually high, standards. 36 The Louisiana citizenship test provides a good example of the process of pairry and thrust which has come to characterize federal-state relations as regards the problem of Negro suffrage in the period 1957-1963. The federal government filed its suit against the Louisiana interpretation

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144 test on December 28, 1961. On June 12, 1962, the Governor of Louisiana approved an act passed by the Louisiana legislature authorizing the Board of Registration to "prescribe and direct the registrars of voters to propotand an objective test of citizenship under a republican form of government . . . which ... shall be . . . furnished to the registrars . . , ."^^ A constitutional amendment providing for the citizenship test v/as added to the Louisiana Constitution on November 6, 1962.^8 Thus, the state was preparing a second line of defense before the first had even been breeched by the federal government. Both these lines were breeched simultaneously, however, by the court's striking dovm the interpretation test and enjoining, in part, the application of the citizenship test. Federal district court judge West dissented at length from both the findings and the conclusions of his brethren. He said* 37 La. Acts 1962, No. 62. •^^The araendment, in part: "The Board shall from time to time adopt such rules and regulations as it finds necessary for proper functioning of registration procedure in the State and shall prepare, adopt and issue a uniform, objective written test or examination for citizenship to determine that applicants for registration understand the duties and obligations of citizenship under a republican form of government. The Board of Registrars shall direct and instruct the registrars to administer this test to all applicants for registration and the results shall be maintained in the registrar's office as public records so that all peiffii^s shall have access to them and the right of appeal therefrom under the applicable laws relating thereto as provided elsewhere in this Constitution." La. Const , art, VII, sec. 18.

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145 Insofar as the majority opinion sems to indicate that somehow, the right to vote is guaranteed by the United States Constitution, I respectfully suggest that the majority is in error. In view of the fact that the privilege of voting emanates entirely from the States, and not from the Federal Government, and in view of the fact that the judicial fvmction is properly exercised only by indicating whether or not the State has transcended provisions of the Federal Constitution, it follows, just as the night follov/s the day, that the role of the Federal Court is not to direct the State in the procedures to be used in registering voters. . . .^^ In addition to Louisiana, two other states— Alabama and Georgia— have provided for citizenship tests. These two states had, in fact, preceeded Louisiana down this path. In Georgia the applicant for registration is given a choice of methods of qualifying to vote.^^ He may either seek to qualify on the basis of literacy 2£. on, the basis of good character and his understanding of the duties and obligations of citizenship under a republican form of government. If the applicant selects literacy as a basis of qualification, he is given a section of the United States Constitution or of the Constitution of Georgia and is required to read it aloud and write it in the English language, Successful performances of these tasks qualifies the applicant as a registered voter if he is not disqualified for any other -^ United States v. Louisiana, 225 F. Supp. 353, 399 (E.D. La. 1963) , appeal docketed. 32 U.S. L. Week 3393 (U.S. May 5, 1964) (No. 1073). "^P Ga. Code Ann . . 34-117 (Supp. 1961). "^-^Phe main thrust of this portion of this chapter is directed at the citizenship test. Literacy tests are disctissed later in this chapter.

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146 reason. If the applicant cliooses to qualify on the basis of good character and his understanding of the duties and obligations under a republican form of government, he is then given an oral examination on a list of standard questions, thirty in number, of v/hich the applicant is required to answer twenty correctly. The questions propounded are quite rigorous and would be a distinct challenge to any applicants, including those with college degrees, who had not made a close study of their state government. "^"^ These provisions were , passed by the Georgia legislature in 1958, shortly after the passage of the first civil rights act in September of 1957.45 In Alabama, the law provides that after January 1, 1962, no one could become a registered voter unless he had passed a written examination which demonstrated his ability to read and write in the English language a given section of the United States Constitution or the Constitution of Alabama, and his knowledge of the duties and obligations of citizenship tinder the statutes of Alabama. Applicants are also to be "examined as to their knowledge of the duties and responsibilities and authority of state officers who are ^ ^SL. Code Ann ., 34-118 (Supp. 1961). 43see Appendix B. ^^^ Ga. Acts 1958, No. 321. 45Act of Sept. 9, 1957, 71 Stat . 634. 46codeofAla. Tit. 17, Sec. 32(2) (Supp. 1961).

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147 elected by vote of the people, and such other related matters as may serve to demonstrate their understanding of state government. "^^ No copy of the examination thus provided for was available at the time of this writing but the language of the statute obviously provides a broad base from which the examiners may construct the examination. The above provisions were added to the Alabama statutes by a special session of the Alabama legislature in 1961.'*^ The second federal civil rights act became law on May 6, 1960.49 Both Alabama and Georgia, along with Louisiana, then, have introduced stricter requirements for voter registration in response to the federal government's civil rights bills and to the subsequent cases which have arisen through the implementation of tlie provisions of tliese bills. These requirements, if applied in non -discriminatory fashion, are bound to disfranchise numbers of whites as well as Negroes in these states. Without doubt these states have reached the conclusion tliat some white citizens must be sacrificed ^^ ibid . "^ QaIq. Acts Exec. Sess . 1961, No. 320. 49Act of May 6, 1960, 74 Stat. 86. '

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148 to keep even larger numbers of Negroes from the polls.-'" There is now no grandfather clause to rescue illiterate or poorly educated whites. In the event that the various types of citizenship tests in these three states— Alabama, Georgia, and Louisiana — are not applied without discrimination, then there seems to be a strong likelihood that they may go tlie way of Loui** • . siana's constitutional interpretation test. In United^ . States V. Louisiana^ ^ the three -judge federal district court reserved judgment as to the constitutionality of that state's citizenship test. If it is found that Negroes, through discriminatory grading or evaluation of a citizenship test in any of these states, are being denied registration then it is quite likely tliat the federal courts v/ill conclude that the tests, as actually employed, have no relation to a person s qualifications to exercise the franchise but are merely another in the long series of devices designed to -'*^In November 1963, 90,000 Negroes in 200 communities in Mississippi cast "Freedom Ballots" in a mock election to draw attention to their disfranchisement. Included in a general platform for v/hich these voters cast their ballots., in addition to planks calling for fair employment and a state commission on equality, was a plaiik calling for a $1.25 an hour minimxmi wage. Atlanta Daily Uorld , November 8, 1963, p. 4. Presumably many of the whites wlio would be disfranchised by citizenship tests in Alabama, Louisiana, or Georgia, would, like the Negroes of Mississippi, favor such a minimum wage plank. Their disfranchisement, then, would be cause for little mourning in these low-wage states. CI ^ •^ United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), appeal docketed, 32 U.S. L. Week 3393 (U.S. May 5, 1964) (No. 1073) .

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149 frustrate Negro voting. Thus euiother piece of state suffrage regulation will go by the board. Considering its success in doing away with the interpretation test, there is little possibility that the federal government would try the county -by-county or registrar -byregistrcur approach to solve the problem of discriminatory use of a citizenship test.^^ The state-wide approach is much more rapid and effective. The whole problem could be solved at one stroke. The precedent has been set in Louisiana. The Voter Application Forya is Attacked Louisiana has provided a fertile field for activity of the federal government in pursuit of racially unrestricted suffrage. Shortly before receiving the favorable decision in United States v. Louisiana^ -^ the Justice Depcirtment filed, on October 8, 1963, a suit challenging the validity of Louisiana's voter application form.^*^ The form^^ is rather intricate in nature and lends itself readily to registrars v/ho might be bent upon discriminatory registration CO But see pp. 111-25, chapter IV, where a county-bycounty approach is necessitated by the factual situation in the Haywood and Fayette , Wood , and Greene cases were discussed. 53225 F. Supp. 353 (E.D. La. 1963). 5 %ew York Times . October 9, 1963, p. 30. 5%ee Appendix C.

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150 practices. 56 Louisiana law provides that the application be completed without assistance^"' and thus it takes on the character of a test . The Justice Department contended that the form is merely a device to trap Negroes and sought a permanent injunction against the use of the application form for any purpose except to record facts concerning the applicant. ^8 Louisiana Attorney General Gremillion characterized the government suit as "cinother legal attempt to establish control of voting by the federal go vernment . " "There is," he said, "no such thing as universal suffrage. The right to vote is a privilege, and the requirements to meet this privilege are a prerogative of the state. "^^ What the Louisiana Attorney General did not mention was the obvious fact that had not Louisiana used its prerogative to set requirements with an eye to preventing Negroes from voting, the federal goverxunent would have hcu3 no basis for its entry into the state's preserves. Had not state officers used these requirements as devices of discrimination, then the various strict registration requirements could have stood until the people of Louisiama 5^See, for example, 1961 Report on Voting 54-57. 57 lsa^.S . 18:31 (Supp. 1963). ^^ New York Times . October 9, 1963, p. 30. 5 ^ Times -Picayune . October 9, 1963, p. 11. ^Q lbid .

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151 themselves tired of them and pressed for their removal. With non -discriminatory and strict enforcement of these regulations, such tiring would not have been long in coming. At this writing, the courts had not decided this case. Pressure on the Literacy Test By the end of 1963, the scope of state suffrage regulation, as exemplified in the state of Louisiana, had taken quite a pommeling at the hands of the federal government. That state's constitutional interpretation test had been declared invalid, its citizenship test was partially enjoined and under judicial suspicion, and its voter -application form was under attack by the Government. There was one form of state suffrage regulation, however, which survived in a practically unscathed condition. This was the literacy test. In 1959 the Supreme Court heard the case of Lassiter v. Northampton County Board of Elections.^ in which the state of North Carolina's constitutionally-required literacy test^^ i^gyj been attacked. The Negro plaintiff in this case had alleged that the literacy test violated the fourteenth, fifteenth, and seventeenth amendments and had refused to submit to the test. A unanimous Court rejected these allegations. Speaking for the ^^360 U.S. 45 (1959) . 62 "Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English lemguage. ..." N.C. Const , art. VI, sec . 4 .

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152 Court, Justice Douglas, whose "liberalism" in cases involving allegations of racial discrimination is a matter of long record, held thatthe ability to read and write . . . has some relation to the standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. ^3 Justice Douglas concluded that the North Carolina test seems to us to be a fair way of determining whether a person is literate, not a calculated scheme to lay springes for the citizens. Certainly, we cannot condemn it on its face as a device unrelated to the desire of North Carolina to raise the standaords for people of all races who cast the ballot. Such an attitude on the part of the Supreme Court apparently blocks the way to any federal judicial stamp of invalidity on state literacy tests. The way is apparently clear for Southern states to adopt non-discriminatorilv administered literacy tests, but where particular county registrcirs did discriminate in administration, the Justice Department would be forced into a multiplicity of suits vmder a county-by -county approach. Further, any other decision ^^ Lassiter v. Northampton County Board of Elections , 360 U.S. 45,51 (1959) . ^Id.. at 53. Two years after the decision in the Lassiter case, a three-judge federal district court upheld the state of New York's requirement of literacy in the English language for voter registration. See Ccunacho v. Rogers , 199 F. Supp. 155 (S.D. N.Y. 1961).

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153 by the Supreme Court in the Lassiter case would have opened to question the validity of the admittedly non-^3iscriminatorily administered literacy tests in many Northern states. Nevertheless « considerable pressure has developed in the other branches of the federal government for the removal, through congressional legislation, or by way of constitutional amendment, of literacy requirements. The Civil Rights Coramission, for example, in 1959 recommended a proposed constitutional amendment to establish a universal suffrage which would have eliminated all state requirements except age, length of residence and absence of legal confinement at the time of election, Such cin amendment would have, without question, saved the federal government the ordeal of the "time-consuming multiplicity of suits" and put an end to suffrage experimentation in the state "laboratories," but it would have nationalized the substance, though not perhaps the detail, of the suffrage once and for all. By 1961, having apparently dispaired of the tedious amendment path to universal suffrage, the Civil Rights Commission recommended that Congress enact legislation prohibiting any requirements other than reasonable length-«fresidence requirements, age, and absence of legal confinement or conviction of a felony. In 1963 the Commission repeated ^^ 1959 Civil Rights Report 144. ^^ 1961 Report on Voting 139.

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154 this recommendation but broadened, hoivever, as if by a second thought, the qualifications to be pemitted a state in determining those qualified to vote. Now besides age, length of residence, and absence of legal confinement, the Commission would include "failure to complete six grades of formal education or its equivalent . . . judicially determined mental disability, or conviction of a felony, "^^ as permissible bases of restriction. President Kennedy's proposed civil rights bill of 1963 and the 1964 bill being debated in the Senate at the time of this writing provided for presumption that any person who has not been adjudged an incompetent and who has completed the sixth grade in a public school in, or a private school accredited by, any State or Territory or the District of Columbia where instruction is carried on predominently in the English language, possesses sufficient literacy, comprehension, and intelligence to vote in any Federal election . . . .^^ This recommendation was narrower than those of the Civil Rights Commission, embracing only federal elections whereas 67 x963 Civil Rights Report 28. 6®Unconfined village idiots who were, in effect, recommended for the franchise in 1959 and 1961 by the Commission would still be able to cast their ballots under the 1963 recommendation could they but avoid the scrutiny of local judges. Persons with felony convictions in their past found themselves, in the 1963 recommendation, liable for proscription, whereas they were not so liable in 1959, Truly, the Commission wouldst giveth and the Commission wouldst taketh away. ' H. R. Doc. No. 124 15 (1963)

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155 the Coramission recoramendations would include both federal and state elections. Extensive congressional hearings were held in 1962 concerning proposed bills to grant presumption of literacy in federal elections to persons who had completed six grades of education.''^ None of these bills was able to muster enough support to gain congressional approval but each subsequent session of Congress has seen its share of literacy 71 bills introduced , In November of 1963 the President's Coramission on Registration and Voting Participation added to the continuing pressure against the literacy test by recommending that literacy tests not be a requisite for voting. Said the President's Conanission: Mciny other media are available other than the printed word to supply information to potential voters. The Commission is not impressed bv the argument that only those who can read and write ^" Hearings on S. 480, S. 2750. and S. 2979 Before the Subcommittee on Constitutional Rights of the Senate Comtaittee on the Judiciary . 87th Cong., 2d Sess. (1962). For additional discussion of the federal literacy bill see the following: Van Alstyne, "The Administration's AntiHLiteracy Bill: Wholly Constitutional But Wholly Inadequate/' 61 Mich . L. Rev. 805 (1963) ; Maggs and Wallace, "Congress and Literacy Tests: A Comment on Constitutional Power and Legislative Abnegation," 27 Law & Con temp. Prob . 510 (1962); Note, "The Constitutionality of Federal Anti-Literacy Test Legislation," 46 Minn. L. Rev . 1076 (1962); Note, "Congressional Authority to Restrict the Use of Literacy Tests, " 50 Calif. L. Rev . 265 (1962) . ^'•See, for example, 196? Civil fiights Hearings, pt. 1 .

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156 or have a sixth grade education should have a voice in determining their futuye . This is the right of every citizen no matter what his formal education or possession of material wealth. The President ' s Commission manifestly then went beyond President Kennedy's recommendations for the 1963 civil rights bill in regard to literacy. It simply Wcisn't ^^President 's Commission on Registration and Voting Participation, Report on Registration and Voting Participation 40 (1963). (Emphasis added.) The Commission was established by President Kennedy on March 30, 1963, and was assigned the following duties: " (a) Study the reasons for the failure of many citizens to register and vote in elections for selection of Members of Congress, the President, and VicePresident including: (1) Laws which restrict registration and voting on the basis of residence, economic status, or other reasons, (2) Procedures for registration of voters, (3) Absentee voting provisions and (4) Causes of non-voting by persons who are otherwise qualified to vote. (b) Prepare and present to the President recommendations for increasing citizen participation in Government through exercise of the right to vote." i^. at 63. In order to keep empires intact, however, the Commission was ordered not to consider "matters placed under the jurisdiction of the Commission on Civil Rights by the Civil Rights Act of 1957 . . . . " Ibid . The eleven raerobers of the Commission were: Richard M. Scammon, Director of the Bureau of the Census; Bert L. Bennett, Immediate past chairman. North Carolina Democratic Executive Committee r Brendan Byrne, Executive Director, the American Heritage Foundation; Robert A. Forsythe, State chaiman, Minnesota Republican Party; Evron M. Kirkpatrick, Executive Director, American Political Science Association; Bradshaw Minetener, Attorney, John A. Perkins, President, University of Delaware; Ruth Schertz Phillips, President, League of Women Voters of the United States; Roy L. Reuther, Director, Citizenship-iegislative Department and Administrative Assistcint to the President, United Automobile Workers Union; Victoria Schuck, Professor of Political Science, Mount Holyoke College; Leon H. Washington, Jr., Editor and publisher of the Los Angeles Sentinel .

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157 "impressed" with the six-grades-of -education stsundeird. It should be pointed out, hov/ever, that the reccMtonendation was not unanimous. Commissioner Byrne, Executive Director of the American Heritage Foundation, thought that a distinction should be made between a literacy test as such and "unfair, discriminatory requirements."^^ Byrne thought it unrealistic to equate "subjective and fraud -fraught tests, which have sometimes excluded Negro Ph.D.'s from voting, with objective and fraud proof literacy tests. "'^ "What is so unreasonable," asked Byrne, "about a state preserving its constitutional right ... to require a voter— unless he is blind—to demonstrate his ability to read the language of our ballot? "^^ Coimnissioner Porsythe pointed out that the Justice Department had not found evidence of the discriminatory employment of literacy tests in fifteen of the nineteen states where they were used.^^ Nevertheless, the President's Consoission did recc»iaaend complete abolition of the literacy test. "Literacy tests," said the Commission majority, "are a remnant of class discrimination" which discriminated against the poor, the aged, '^^Id. at 52. at 53. 75 ij3j.d . The writer agrees with Commissioner Byrne. "^^14. at 54. The fifteen states were all Northern states .

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158 and rural dwellers.^' It felt that literacy tests had no more place in a modern deinocracy than property tests. In many ways, the future of state -required literacy tests would seem, due to the pressures being exerted against them, to be inauspicious. The civil rights bill being debated in the Senate in 1964 retains the provision for presumption of literacy for persons who have completed six grades in an accredited school. The passage of a civil rights bill providing for a sixth-grade education as a standard of literacy in federal elections would be the opening vredge in the demise of this type of state -suffrage regulation. One could look for some of the states possibly to shift their state elections to off-years in order to sever the connection with the federal election and the consequent federal literacy standcurd. The majority of literacy-test states, where no racial discrimination has been found to exist in the use of the tests, could very well decide that the tests were no longer worth the bother and eliminate them altogether.'''^ Such an action would mean additional unfavorable publicity "^"^Id. at 57. 78lbM. 79The Kennedy proposed civil rights bill also forbade the employment of "cuiy literacy test as a qualification for voting in any Federal election unless (i) such test is administered to each individual wliolly in writing and (ii) a certified copy of the test and of the answers given by the individual is furnished to him within twenty-five days of the submission of his written request . . . ." H. R. Doc . No. 124 15 (1963) .

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159 for, and increased pressure on, the intransigent Southern state minority to conform to the rest of the nation. Another "laboratory" experiment in the federal system will have been concluded, A Iie^son Unlearned The complete elimination of all the suffrage regulations just discussed --the interpretation test, the citizenship test, the registration application used as a "test," the literacy test— would not usher in the millenium in the suffrage field. Rather, judging by past history, it would press upon the states bent upon "controlling" Negro suffrage the necessity of producing new regulations to take the place of the old ones. These new suffrage regulations will ultimately have to be tested before the federal bench as the parry and thrust between nation and state continues. A glimpse of the direction the further state activity may take has been furnished by the legislature of the state of Mississippi. In 1962 that legislature passed a spate of measiares adding new suffrage regulations to those already on the books. As a result, the Mississippi statutes now provide that the name and address of an applicant for registration shall be published in a newspaper "before consideration is given to the sufficiency of the application."^^ If after ' Miss. Code Ann . Tit. 14 Sec. 3212.7 (Supp. 1962).

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160 fourteen days no one has challenged the good moral character^^ of the applicant or any other requirement v/hich applicants must meet, then the registrar will consider whether the applicant has complied with Mississippi's laws and the Mississippi Constitution.^^ Not only does the publication of the name and address of the potential applicant announce that his good moral character is open to challenge but, of course, it identifies the applicant for any of his community who might be inclined to exert various extra-legal types of pressure against him because of his suffrage activity. Another result of the legislative activity of 1962 in Mississippi is that the poll books of each election district are no longer required to make any reference to the color of the electors therein recorded.^ This v/as probably less the result of the Mississippi legislature's being seized by an integrationist spirit than of a desire to **-*-Possession of a good moral chciracter is a constitutional requirement. Miss. Const , art. XII, sec. 241-A. This requirement was ratified by tlie Mississippi electorate on November 8, 1960. The requirement was found to be "reasonable" and "patently not discriminatory on the basis of race" in Upited States v, Mississippi , 32 U.S, L. Week 2504, 2505 (S,D. Miss. Mar. 6. 1964) . appeal docketed . 32 U.S. L. Week 3401 (U.S. May 11, 1964) (No. 1097) . ^^ Miss. Code Ann . Tit. 14 Sec. 3212.7 (Supp. 1962). Q ^ss. Code Ann . Tit. 14 Sec. 3217.02 specifically provides that ciny qualified elector of the county may challenge the good moral character or ciny other requirement of any applicant. (The statute was also added to the books in 1962 by Miss. Lav/s . Ch. 573) . ' %i3s. Code Ann . Tit. 14 Sec, 3232 (Supp. 1962).

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161 hinder the federal governiaent ' s inspection of voting records. 85 In conjimction with this requirenxent, it should bo pointed out that a statute already on the books before the meeting of the 1962 legislature provided that in the absence of an appeal from the ruling of a registrar upon an application for registration, or if the applicant makes another application before any final decision has been made on any prior application, the registrar vA3uld not be required to retain or preserve any record made under the original application.®^ Before 1960, v/hen this particular statute 87 acquired its present wording, °' the registTGu: was required to number all applications serially in the order of taking and to make a permanent record of the date of the application, the name of the applicant and the serial number. All of the applications were to be bound and remain a permanent public record. 88 8%egistration records were formally demanded by the federal government in Mississippi in three covmties in 1960, in tliree counties in 1961, in eighteen counties in 1962, and in thirty counties in 1963. Letter from Louis K. Kauder, Attorney, Civil Rights Division, United States Department of Justice, February 18, 1964. 86 Miss. Code Ann . Tit. 14 Sec. 3209.6 (Supp. 1962) . The constitutionality of this section was upheld in United States V. Mississippi . 32 U.S. L. Week 2504 (S.D. Miss. Mar. 6, 1964) , a^^oQal doclcetGd . 32 U.S. L. Week 3401 (U.S. May 11, 1964) (No. 1097) . 87 ^1iss. Laws 1960. Ch. 449. %is3. Code Ann . Tit. 14 Sec. 3209.6 (1942).

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162 These new regulations are of a minor nature perhaps, cU3 compared with interpretation tests, literacy tests, and so forth. They do deinonstrate , though, that the suffrage battle is far from over and that the states are not at the end of their resources or ingenuity. The apparently unlearnable lesson is that such resourcefulness and ingenuity in the matter of suffrage regulation only invites more federal "intervention."

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CHAPTER VI CAUSE FOR CONCERN American Constitutional history is full of instances of federal -«tate clcushes. The temper of our times with the constantly expauiding emphasis on civil rights and discrimination against minority groups has resulted in the drawing of battle lines as between nation and states in a way seldom before seen in the history of American federalism. Failure of a few Southern states to assume their responsibilities toward their Negro citizens in the area of suffrage has resulted in increased federal activity and intervention into an area previously believed reserved to the states. American federalism today is subject to tremendous pressures emanating from a position of leadership in the "free world," from the demands of the welfare state, and from what is termed the "Negro Revolution." Those responsible for a revolution which seeks elimination of racial discrimination within the nation's borders, which seeks the en masse elevation of a heretofore submerged minority group composed of one-tenth of the nation's population, will chafe at obstacles in their path; they will be impatient with delay and with "states' rights." 163 -

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164 It is in such a charged atmosphere that the federalstate clash over suffrage has taken place. Relying on the fourteenth and fifteenth amendments to the Constitution, positive federal legislation, and militant executive action the judicial as well as the socio-economic front, the federal government has expanded its activities in the field of suffrage, once the almost exclusive province of the states. The primary consequence of this federal -state clash and federal expansion is a movement toward unity and centralization of the suffrage. The clash over suffrage has introduced a pressure for conformity which in many ways v/eakens the idea of diversity, of experimentation, which inheres in a federal system. If, for example, age, residence, and non -confinement to institutions were made the only possible restrictions upon the granting of the suffrage, what would be the result for the states — all of them, not just the Southern states? Would it not make of them mere administrators of a federal standard? True, the freedom to discriminate would be removed but so also would be the freedom to experiment, to be a little different, to try something new. The narrowing of state control over suffrage regulation certainly erodes or chemges in some degree the position of the states — all of them — in the federal system by shifting yet more authority and control to the federal government. Increased federal involvement in the electoral process will not totter the Republic from its foundations. Rather,

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165 the controversy between nation and state over the suffrage has helped produce changes or even, perhaps, malnutrition, a weakening of the federal system. The suffrage conflict, together with the other pressures on federalism which have been mentioned, point toward more centralization in government in the offing, -. There is considerable evidence of impatience with federalism on the part of those who are deeply committed to the elimination of racial restrictions in the suffrage. Civil rights advocates urge us rapidly onward to a goal which still wants of achievement. They point out the frustrating and irritating gap between accomplishments up to the present and the ultimate goal. There is, consequently, an effort to "beat the system, " to seek shortcuts through the federal machinery with not too much regard for the effects of such effort on that system. The efforts of the Civil Rights Commission to promote a "free and universal suffrage" whether by constitutional amendment or by congressional legislation fall into this category.! The Commission would slash through the difficulties imposed by differing state suffrage regulations— and consequently the knot of time-consuming court cases — by eliminating the possibility for difference. There would be no need to battle from county-to-county or from state-tostate in an attempt to open up suffrage to Negroes. A See p. 83 supra

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166 "clear, simple and easily enforceable" federal stcindard vrould eliminate this necessity. . This same impatience with the toils of federalism has been demonstrated by the Justice Department in its statewide suits, such as we have observed in Louisiana, against alleged discriminatory suffrage restrictions. The appeal of this approach shows evidence of increasing popularity in other fields of the civil rights struggle. In the early spring of 1964 the Justice Depcurtment, evidently exasperated at a school -by-school or even school -district by school-district approach in achieving desegregation, asked the federal district court in Montgomery, Alabama, to order the state of Alabama to take state-^^ide steps to bring an end to school segregation . 2 The granting of this Justice Department request by the federal court vrould certainly speed up school desegregation in the state of Alabama and eliminate the bother of so much litigation on the federal government's part. On the non -governmental level, suggestions have been made as to how civil rights guarantees, including the suffrage, might be more effective. Back in 1947, Robert K. Carr, in listing possible constitutional bases for civil rights legislation asked: When a state permits lynchings, violations of free speech, or denies the right to vote, etc., may not Congress intervene [under the power to guarantee ^St. Pet ersburg Times . March 14, 1964, p. 2-A.

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167 a republican form of government within the states] to protect such rights as are necessary to the existence of a republican fomn of government? 3 -'Carr, Federal Protection of Civil Rights ; Quest fop a Swoyd 205 (1958) . The bases, in totality, which Carr suggested that Congress might use "in developing a more comprehensive program for federal protection of civil rights" were: "1, Plenciry power over government employees (federal, state , and local in so far as the latter are paid in v/hole or in part by federal funds) , and over all persons in the armed services. Congress may use this power to protect these millions of persons against threats to their civil rights which are related to their government employment. 2. Treaty power. By the authority of Missouri v, Holland , 252 U.S, 416 (1920) , Congress may pass any law necessary to implement a treaty .... 3. War powers, Lynchings, and other lesser violations of civil rights frequently result in the dissemination of propaganda \Nrhich damages our standing in the eyes of foreign peoples and endangers our national security. May not Congress take steps to protect the nation against this external danger, by attempting to alleviate the internal conditions that give rise to this adverse propaganda? Congress may use the war powers to protect war veterans in the exercise of their special rights and privileges. Their rights to go to school, enter a business or profession, or to buy property without being subjected to racial or religious discrimination may be so protected, 4. Interstate Commerce Power, (a) Congress may forbid discrimination or segregation in interstate transportation based on consideration of race, religion, etc, (b) Congress may prohibit the transportation in interstate commerce of produce manufactured by concerns practicing discrimination in their employment policies. (c) Congress may ma]ce it a federal criminal offense for members of lynch mobs to teilce their victims across state lines, or to flee across state lines. 5. Power to guarantee a republican fom of government within the states. 6. Purchasing or contract power. Using the device employed in the Walsh -Healy Act, Congress may require individuals doing business with the government or having contracts with it, to refrain from discrimination in their employment practices, etc, 7. Taxing power. May not Congress cancel the tax exemption privilege of organizations guilty of

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168 Such a use or implementation of the guarantee clause would open a broad avenue of entry for the federal government into state affairs for without doubt it would be the federal government's definition of "republican" which would be the standard by v/hich state actions would be judged for conformance. Article IV, section 4 of the Constitution is, in the words of Charles Sumner, "a clause which is like a sleeping giant in the Constitution . • . • There is no clause which gives to Congress such supreme power over the states as that clause."^ This "sleeping giant" was nudged again in the present civil rights struggle by Arthur Bonfield who in 1962 asked if a state can be deemed republican if it does not safeguard its citizen's rights in fact, as well as in law? Should not the national government protect Americans against state government that leaves regulation of their rights to private intimidation?^ discriminatory practices, or cancel tax deductions by organizations by the taxpayer on contributions made to such organizations? 8. Spending power. May not Congress withdraw government sxabsidies from organizations practicing discrimination?" Jd^. at 205-06. (Emphasis added . ) "^ Conq. Globe . 40th Cong., 1st Sess. 614 (1867). ^Bonfield, "The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude," 46 Minn . L. Rev . 513, 565-66 (1963) .

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169 Bonfield's answer was: Certainly in the light of contemporary theories of natural justice as well as public e>cpectations , such a government must be deemed unrepublican. As a result, when a state fails in its affirmative duty to adequately protect these rights, that responsibility devolves on the federal government . ^ One, of course, is tempted to wonder at this point just what it is that "conteraporciry theories of natural justice" and "public expectations" will classify as "unreptiblican. " One wonders, too, who will consult the oracles of "natural justice and pxiblic expectations" and reveal their light and wisdom to the multitude— and to Congress. Bonfield sees great possibilities in the rise of the guarantee clause to accomplish more directly the elimination of discriminatory state regulation of the suffrage. This clause, he believes, empowers Congress to abolish the poll tax in state elections, enact maximum as well as minimum qualifications for state electors, eliminate as unrepiiblican malapportionment and gerrymandering, and set a maximum term for public office .^ "By standardizing the qualifications needed to vote," writes Bonfield, "Congress would be advancing the general purpose of the framers which was to secure a substantial unifoCTaitv among state governments."^ ^jCd. at 566. '^Id. at 567-68. ^Id. at 568. (Emphasis added.)

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170 Such an employment of the guarantee clause VTould undoubtedly reduce much of the present litigation in the field of voting regulation and certainly speed "contanporary" ideas of v/hat constituted "natural" justice in this matter of suffrage. Employment of the guarantee clause, furthermore, would most likely not be limited to redressing suffrage ills. Would, for example, a state government which did not correct "racial imbalance" v/ithin state schools be republican? And, similarly, would a state government be republican if businesses licensed by that government employed only white persons? It is difficult to see v/here a use of the clause would stop once it began. The foregoing examples— the Civil Rights Commission's proposal, the nature of the Justice Department suits against suffrage discrimination, the proposed use of Article IV, section 4— are a further consequence of the federal government's increased activity in suffrage regulation. They are examples of, and typify, a mood of impatience with federalism which has developed as a result of the inability of federal activity to achieve the desired end — freedom from racial discrimination in the suffrage — ^as rapidly as those who pursue this end would like. The federal government is slowed by the federal system, which with its multitude of governing bodies militates against rapid change. The continued existence—and expansion— of this mood of impatience portends changes for the distribution of powers

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171 in the American federal system. The desire for speed which \irges additional power on the national government is not calculated to maintain federalism as v/e have known it considering the scope of the national government's present day activity. Closely related to this mood of impatience with federalism is a mood of what might simply be called antagonism, or even of vengeance. Generated also by slowness or reluctance of certain states to conform with national policy, this mood reflects a will, a desire, to use the federal government as an instrument to punish these states. Such a mood does little to promote amicable federal-state relationships; it does little to strengthen federalism cind is productive only of bitterness between the federal and the state governments. This will to use the federal government to pimish the states is reflected in the various proposals to implement section 2 of the fourteenth amendment; that is, to reduce the representation of those states which racially discriminate in the granting of the suffrage.^ Representative Stratton of New York, for example, has introduced a bill, H. R. 6801, to provide that House representation of a state "be reduced For an excellent discussion of section 2 see, Zuckerman, "A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment," 30 Fordham L. Rev . 93 (1961) .

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172 in proportion to the nuniber of adult inhabitants of such State whose right to vote is denied or abridged. In the same spirit of punishment the Civil Rights Commission recommended in its Interim Report that the Congress and the President consider seriously whether legislation is appropriate and desirable to assure that federal funds contributed by citizens of all the States not be made available to any state which continues to refuse to abide by the Constitution and laws of the United States; and, further, that the President e:?n3lore the legal authority he possesses as Chief Executive to with> hold federal funds from the State of Mississippi until the State of Mississippi demonstrates its compliance with the Constitution and laws of the United States. In view of the amount of federal money flowing into other states, as well as into Mississippi, this recommendation by the Commission would be indeed punishment with a vengeance, if put into effect in regard to any state. Without federal largess, Mississippi and many other states would wither on the federal vine. The Commission later contended that it did not meein to advocate that all funds be withheld or that social security and welfare payments, for example, be cut off .•'^ "We were," said staff director Bernhard, "misreported. Even our 10109 Cong. Rec . 9656 (daily ed. June 5. 1963). ^^109 Cong. Rec . 6216 (daily ed. April 18, 1963) . (Emphasis added . ) In regard to demonstrating compliance, the Commission neither specified how this compliance was to be demonstrated nor to whom. ^'^Carter, "The Role of the Civil Rights Commission," The Reporter , July 4, 1963, p. 10, at 11.

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173 friends misunderstood."-^^ What the Commission reportedly had in mind was . a progr am -t»y -program review of Federal money going to the state [Mississippi], particularly grants-inaid and matching funds, to maJce sure that federal money was not being used to foster or encourage discrimination. Such a reviev/ would provide a ' leverage foy bargaining ' which in turn might ' stimulate the business community to cooperate .' '^ Whatever the Commission really did have in mind, the v/ithdrawal or curtailing of a "states" federal money would doubtlessly be looked upon by the affected state as extreme federal punitive action against it. The Commission's "leverage for bcirgaining" vrould reserrible nothing as much as a federal shillelagh to the state or states involved. The resentment generated in such circumstances as these would, as would the proposed reduction of a state ' s representation , create little good will between the states affected and the federal government. Additionally, a financial siege directed at a state or several states by the federal government, once the precedent were set, could be expanded to enforce federal policy in any area. What then of federalism? The Notre Dame Conference on Congressional Civil Rights Legislation, held in February of 1963, had some rather strong recommendations further illustrative of the inclination or desire to punish. "The evil of discrimination," reported the Conference ^^ ibid . ^^Ibid.

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174 is confined ... to certain cornmunities of the deep south where the constitutional prohibition against voting discrimination is openly flouted and efforts to obtain or exercise voting rights are met by acts of intimidation, harrassment, and physical violence, sanctioned and sometimes even participated in by local authorities and law enforcement officers. These are, and should rationally be regarded as, outlaw communities . '•^ The Conference Report went on to add that "our federal system will be less seriously challenged by federal power brought to bear directly on these coramiinities , than by federal laws which supersede state election laws." However # the report stopped to qualify this statement by saying that "it was not meant to preclude federal regulation of elections, or the establishment of federal standards when, in the judgment of Congress they are necessary or desirable. "-^^ Such then are the outstanding consequences of the state failure, in the vital area of the franchise, to asstime responsibility and the expansion of the federal government into that area: an additional contribution to a more centralized government in a time when such contributions are already numerous and powerful; increasing efforts to shuck federalism 's delays and irritations and in consequence, perhaps, the system itself; and a scarcely concealed desire •'••'"Notre Dame Conference on Congressional Civil Rights Legislation — A Report," 38 Hotre Dame Law. 430, 442 (1963). (Emphasis added.) ^^Ibid. ^"^ Ibid

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175 to use the federal government as an engine of punishment upon recalcitrant state members of the federal syston and some of their communities. The division of powers in the American federal system has never been a constant and well-defined thing. The genius of the American Constitution, and the genius of the American federalism system therein set out, has been in flexibility, in adaptability to changes in American society through interpretation and dynamic growth. The division of powers of 1789 was not the division of powers of 1860 nor of 1960. Nor will the division of powers of 1970 be that of 1960. But the events analyzed in this paper, events dealing with one small segment of the great picture of American federalism, forecast a tempestuous and perhaps even tlireatening future for American federalism. Without playing the part of a prophet of "doom and gloom, " there is genuine cause for concern for American federalism in the Age of Atom, Space, and Civil Rights. How far may the process of redistributing powers in the American federal system go v/ithout destroying the federal principle? Does the process of centralization, of which the suffrage picture is a pcirt, carry with it the seeds of em eventual unitary state? May we find ourselves with a federal state in name and a unitary state in activity? Was Laski right (for the wrong reasons!) when he spoke about the "obsolescence of American federalism?"

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176 This paper did not start out to answer general questions of this type, but an observation or two is in order. The key to the future of American federalism, of course, is in constitutional growth and interpretation— by the courts, the legislative bodies, and the executive branches of govern18 ment. Judge West in United States v. Louisiana recognized this important principle for the courts when he said: In view of the fact that the privilege of voting emanates entirely for the States, and not from the Federal Government, and in view of the fact that the judicial fxinction is properly exercised only by indicating whether or not the State has transcended provisions of the Federal Constitution, it follows, just as the night follows the day, that the role of the Federal Court is not to direct the State in procedures to be used in registering voters. •'•^ In the struggle over the suffrage, interpretation has changed and will change in the future the division of powers in the American federal system. Perhaps, the interpretation will be based on language already used — for example, the fourteenth and fifteenth amendments or Congressional acts linked to the Constitution's supremacy clause. Perhaps, the interpretation will be grounded on other bases— the guarantee of a Republican form of government clause of the Constitution, or the war power, or the commerce power. All branches of government at all levels, and the people also, play a part ^^225 F. Supp. 353 (E.D. La. 1963) . ^^I^. at 399.

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177 in this process of growth and interpretation. The division of powers in the American federal system may change by interpretation, but the salient fact of the existence of a meaningful division , so long as that division remains meaningful, is the important fact of American governmental life. The controversy over suffrage has not yet, it is submitted, changed the meanincT of federalism, although the struggle has drastically altered the boundary lines of the division of pov/ers. History may even show that the suffrage, through interpretation, became a national prerogative. It is not the purpose of this paper to contend that American federalism is dead, or even to speculate at length about the state of it« general health. It is the purpose of this paper to show that the division of powers in the American federal system is different today than it was yesterday because of a clash between the nation and the states in the fundamental area of the suffrage, the area which Oliver Wendell Holmes, father of the Supreme Court Justice, once described as The freeman, casting with unpurchased hand. The vote that shalces the turret of the land.

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APPENDICES

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APPENDIX A Relevant Pre-1957 Civil Rights Statutes Section 241, Title 18, United States Code . "If two or more persons conspire to injure, oppress, tlireaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right so secured — They shall be fined not more than 5,000 dollairs or imprisoned not more than ten years, or both." (Derived from Act of May 31, 1870, section 6, 16 Stat. 144) . Section 242, Title 18, United States Code . "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of ciny State, Territory, or district to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than 1,000 dollars or imprisoned not more than one year, or both." (Derived from Act of May 31, 1870, section 17, 16 Stat . 144). Section 1971(a), Title 42, United States Code . "All citizens of the United States who are otherwise qualified by law to vote at any elections by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding." (Derived from Act of May 31, 1870, section 1, 16 Stat . 140) . Section 1983, Title 42, United States Code . "Every person, who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be svjbjected, any citizen 179 -

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180 of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and lav/s, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." (Derived from Act of April 20, 1871, section 1, 19 Stat . 13). Section 1985(3), Title 42, United States Code . "If two or more persons in any State or Territory conspire to go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under tlie laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of the Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." (Derived from Act of April 20, section 2, 17 Stat . 13) .

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APPENDIX B The Georgia Voter HRegistration Examination . 1. What is a republican form of government? 2. Wliat are the names of the three branches of the United States government? 3. In what State Senatorial District do you live and what cure the names of the county or counties in such District? 4. What is the name of the State Judicial Circuit in which you live and what are the names of the counties or county in such Circuit? 5. What is the definition of a felony in Georgia? 6. How many Representatives are there in the Georgia House of Representatives and how does the Constitution of Georgia provide that they be apportioned among the several counties? 7. What does the Constitution of Georgia prescribe as the qualifications of Representatives in the Georgia House of Representatives? , . • 8. How does the Constitution of the United States provide that it may be amended? 9. Who is the Chief Justice of the Supreme Court of Georgia and who is the Presiding Judge of that court? 10. Who may grant pardons and paroles in Georgia? 11. Who is the Solicitor General of the State Judicial Circuit in which you live and who is the Judge of each Circuit? (If such Circuit has more than one Judge, name them all.) 12. If the Governor of Georgia dies, who exercises the executive power, and if both the Governor and the person who succeeds him die, who exercises the executive power? 181 -

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182 13. (a) What does the Constitution of the United States provide regarding the suspension of the privilege of the writ of Habeas Corpus? (b) Wliat does the Constitution of Georgia provide regarding the v/rit of Habeas Corpus? 14. What are the naraes of the follov/ing persons who occupy the following State offices in Georgia? (1) Governor (3) Secretary of State (2) Lieutenant Governor (4) Attorney General (5) Comptroller General (6) State Treasurer (7) Commissioner of Agriculture (8) State School Superin(9) Commissioner of Labor tendent 15. How many Congressional Districts in Georgia are there and in which one do you live? 16. What is the term of office of a United States Senator? 17. What is the term of office of a State Senator? 18. What is the coxinty seat of your county? 19. How does the Constitution of Georgia provide that a county seat may be changed? 20. What are the qualifications for jury service in Georgia? 21. What are the names of the persons wlx? occupy the following offices in your county? (1) Clerk of the Superior Court (2) Ordinary (3) Sheriff 22. How may a new state be admitted into the Union? 23. On what day and how often is the general election held in Georgia at which members of the General Asseatibly of Georgia are elected? 24. What does the Constitution of the United States provide regarding the right of citizens to vote? 25. In what Federal Court District do you live? 26. What cire the names of the Federal District Judges of Georgia? 27. Who are citizens of Georgia? 28. What is treason against the State of Georgia?

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183 29. In what body does the Constitution of the United States declare that the legislative powers granted in such Constitution shall be vested? 30, How many electoral votes does Georgia have in the electoral college? Source: Ga. Code Ann . 34-119 (Supp. 1961).

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APPENDIX C The Louisiana Voter Application Form I am a citizen of the United States and of the State of Louisiema. My name is Mr , Mrs , Miss I was born in the State (or county) of Parish (or county) of on the .... day of , in the year I am now .... years, .... months, and .... days of age. I have resided in this state since , in this parish since .... .., and in Precinct No , in Ward No of this parish continuously since I am not disfranchised by any provisions of the constitution of this state. The name of the houseliolder at my present address is My occupation is My color is My sex is I am not now registered as a voter in any other ward or precinct of this state, except My last registration was in Ward , Precinct , Parish I am now affiliated with the Party. In each of the following items the applicant shall mark through the word 'have' or the words 'have not' so that each item v/ill show a true statement about the applicant; I have (have not) been convicted of a felony without receiving a full pardon and restoration of franchise. I have (have not) been convicted of more than one misdemeanor and sentenced to a term of ninety (90) days or more in jail for each such conviction, other than traffic and/or gamf* law violations, v/ithin five years before the date of making application for registration as an elector. I have (have not) lived with another in 'common law' marriage within five years before the date of making this application for registration as an elector. I have (have not) given birth to an illegitimate child within five years before the date of making this application for registration as em elector (The provisions hereof shall not apply to the birth of any illegitimate child conceived as a consequence of rape or forced carnal knowledge) . I have (have not) acknowledged myself to be the father of an illegitimate child within five years before the date of making this application for registration as an elector. Signature Sworn to and subscribed before me: (Deputy) Registrar Source: LSA-R.S . 18:32 (Supp. 1963). 184

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* • JV BIBLIOGRAPHY 1

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BIBLICXSRAPHY TaJale of Cases Alabama ex rel Gallion v. Rogers, 187 F. Supp. 848 (M.D. Ala. 1960) . Anderson v. Courson, 203 F. Supp. 806 (M.D, Ga. 1962) . Breedlove v. Suttles, 302 U.S. 272 (1937). Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) , Camacho v. Rogers, 199 F. Supp. 155 (S.D. N.Y, 1961) . The Civil Rights Cases, 109 U.S. 3 (1883) . Coleman v. Kennedy, 313 F. 2d 867 (5th Cir. 1963) . Darby v. Daniel, 168 F. Supp. 170 (S.D, Miss. 1958). Davis V. Schnell, 81 F. Supp. 872 (S.D, Ala. 1949) . Dinkens v. Attorney General of the United States, 285 F. 2d 430 (5th Cir. 1961) . Elmore v. Rice, 72 F. Supp. 516 (E.D, So. Car. 1947). Guinn v. United States, 238 U.S. 347 (1915) . Hannah v. Larche, 363 U.S. 420 (1960). Hurd V. Hodge, 334 U.S. 24 (1948). In re A. B. (Brovm) Gordon, 218 F. Supp. 826 (S.D. Miss. 1963) . . « In re Coleman, 208 F. Supp. 199 (S.D, Miss. 1962) . In re Supervisors of Election, 23 Fed. Cas. (No. 13,628) (C,C, S.D. Ohio 1878) . In re Turner, 24 Fed. Cas. 337 (No. 14,247) (CCD. Md. 1867) James v. Bowman, 190 U.S. 127 (1903) . 186

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187 Karem v. United States, 121 Fed. 250 (6th Cir. 1903) . Kennedy v. Bruce, 298 F. 2d 870 (5th Cir. 1962). Kennedy v. Lewis, 325 F. 2d 210 (5th Cir. 1963) . Kennedy v. Lynd, 306 F. 2d 222 (5th Cir. 1962) . Kennedy v. Owen, 321 F. 2d 116 (5th Cir. 1963). Lackey v. United States, 107 Fed. 114 (6th Cir. 1901). Lane v. Wilson, 307 U.S. 268 (1939). . .. Lassiter v, Northampton County Bojurd of Elections, 360 U,S. 45 (1959) . Lott V. State, 239 Miss. 97, 121 So. 2d 402 (I960), McLaurin v. Oklahoma, 339 U.S. 637 (1950). Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938) . Missouri v. Holland, 252 U.S. 416 (1920) . Myers v. Anderson, 238 U.S. 368 (1915). Newberry v. United States, 256 U.S. 232 (1921). Nixon V. Condon, 286 U.S. 73 (1932). Nixon V. Herndon, 273 U.S. 536 (1927) ... Owen V. Kennedy, 84 S. Ct. 12 (1963). Rice V. Elmore, 165 F. 2d 387 (4th Cir. 1947). Rice V. Elmore, 333 U.S. 875 (1948). Shelley v. Kraemer, 334 U.S. 1 (1948). J; '\ Sipuel V. Board of Regents of The University of Oklahoma, 332 U.S. 631 (1948) . Smith V. Allwright, 321 U.S. 648 (1944) . Sweatt V. Painter, 339 U.S. 629 (1950). Terry v. Adams, 345 U.S. 461 (1953) . United States v. Amsden, 6 Fed. 819 (D. Ind. 1881) .

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188 United States v, Atkeison, Civ. No. 4131, W.D. Tenn., July 26, 1962, 7 Race Relations Law Reporter 486 (1962) . United States v. Bsircroft, Civ, No. 4121, W.D. Tenn., May 2, 1962, 7 Race Relations Law Reporter 484 (1962) . United States v. Beaty, Civ. No. 4065, W.D, Tenn., May 2, 1962, 7 Race Relations La\7 Reporter 484 (1962) , United States v. Beaty, 288 F. 2d 654 (6th Cir. 1961). United States v. Bebb County Democratic Executive Coranittee, 222 F. Supp. 593 (M.D. Ga. 1962) . United States v. Board of Education of Greene County, Mississippi, Civ. No. 1729, S.D. Miss., Aug, 30, 1962, 7 Race Relations Law Reporter (1962) . United States v. Cruikshank, 92 U.S. (2 Otto) 545 (1875). United States v. Deal, Civ. No. 8132, Vf.D. La., Feb. 3, 1961, 6 Race Relations Law Reporter 474 (1961) . United States v. Dogan, 314 F. 2d (5th Cir. 1963) . United States v. Fayette County Democratic Executive Committee, Civ. No. 3835, W.D, Tenn., April 25, 1960, 5 Race Relations Law Reporter 421 (1960) , United States v. Jones County Democratic Executive Committee, Civ. No. 1905, M.D. Ga. , June 26, 1963, 8 Race Relations Law Reporter 1091 (1963) . United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963). United States v. Mathews, Civ, No, 516, M,D, Ga., filed Aug. 13, 1962. United States v. Mississippi, 32 United States Law Week 2504 (S.D. Miss., Mar. 6, 1964). United States v. Penton, 212 F. Supp. 193 (M.D, Ala. 1962) . United States v. Raines, 172 F. Supp. 552 (M.D, Ga, 1959), United States v. Raines, 362 U.S. 17 (1960). United States v. Reese, 92 U.S. (2 Otto) 214 (1875). United States v. Rhodes, 27 Fed. Cas. 785 (No. 16,151) (C.C. Ky. 1866) .

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189 United States v. Wood, 295 P. 2d 772 (5th Cir. 1962). Williams v. Mississippi, 170 U.S. 213 (1898). Books Anderson, William. The Nation and The States ; Rivals Or Partners? Minneapolis: University of Minnesota Press, 1955. Benson, George C. S. et al . Essays In Federalism . Clareroonti Institute For Studies in Federalism, 1961. . The New Centralization . New York: Farrar & Rinehart, 1941. Berman, Deiniel. A Bill Becomes a Law ; The Civil Rights Act of 1960 . New York: The Macmillan Company, 1962. Brogan, Denis William. The Crisis of Apterican Federalism . Glasgow: Jackson, Son & Co., 1944. Carr, Robert K. Federal Protection of Civil Rights ; Quest For A Sword . Ithaca: Cornell University Press, 1947. Clark, Jane Perry. The Rise of a New Federalism . New York: Columbia University Press, 1938. Cook, Fred J. The VJarfare State . New York: The Macmillan Co., 1962, . . Hamilton, Alexander and Madison, James and Jay, John. The Federalist . New York: Random House, n.d. . Livingston, William S. Federalism and Constitutional Change . Oxford: Oxford University Press, 1956. MacMahon, Arthur W. (ed.). Federalism : Mature and Emergent . New York: Doubleday, 1955. McWhinney, Edward. Comparative Federalism : States' Rights and National Power . Toronto; University of Toronto Press, 1962. Morley, Felix. Freedom and Federalism . Chicago: H. Regnery Co., 1959. Myrdal, Gunnar. An American Dilemma ; The Negro Problem and Modern Democracy . New York: Harper & Brothers, 1944,

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190 Pound, Roscoe. et al . Federalism as a DGinocratic Process . New Brunswick: Rutgers University Press, 1942. Price, Margaret. The Nearo Voter in the South . Atlanta: Southern Regional Council, 1955. . The Negro and the Ballot in the South . Atlanta: Southern Regional Council, 1959. Rockefeller, Nelson. The Future of Federalism . Cainbridgej Harvard University Press, 1962. Swarthout, John M. , and Bartley, Ernest R. Principles and Problems of American National Government . 2d ed. revised. New York: Oxford University Press, 1955. Wheare, K. C. Federal Government . 3d ed. London: Oxford University Press, 1953. Law Reviev7 Articles Bernhard, Berl I. "The Federal Fact-Finding Experience — A Guide to Negro Enfranchisement," 27 Law and Contemporary Problems 468 (1962) . Bonfield, Arthur. 'The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude," 46 Minnesota Law Review 513 (1962) . DeGrazia, Alfred. "A New Way Towards Equal Suffrage," 34 New York University Law Review 716 (1959) . "Elections," 6 Race Relations Law Reporter 200 (1961). Maggs, Douglas B., and Wallace, Lawrence G. "Congress and Literacy Tests: A Comment on Constitutional Power and Legislative Abnegation," 27 Law and Contemporary Prob2Ma. 510 (1962) . Marshall, Burke. "Federal Protection of Negro Voting Rights, 27 Law and Contemporary Problems 455 (1962) . Maslow, Will, cind Robison, Joseph. "Civil Rights Legislation and the Fight for Equality, 1862-1952," 20 University of Chicago Lsm Review 363 (1953) . McNamara, Pat. "The Challenge of a Federal -State Partnership," 34 Nov/ York University Law Review 996 (1959) ,

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191 "Notxe Dame Conference on Congressional Civil Rights Legislation — A Report," 38 Notre Dame Lawyer 430 (1963). VanAlstyne, William W. "The Administration's Anti -Literacy Test Bill: Wholly Constitutional But Wholly Inadequate," 61 Michigan Law Review 805 (1963) . Zuckerman, George David. "A Consideration of the History of Section 2 of the Fourteenth Amendment, " 30 Fordham Law Review 93 (1961) . Law Notes "Federal Power to Enjoin State Court Proceedings," . 74 Harvard Law Review 726 (1961) . "Congressional Autliority to Restrict the Use of Literacy Tests," 50 California Law Review 265 (1962). "The Constitutionality of Federal Anti-Literacy Test Legislation," 46 Minnesota Law Review 1076 (1962). "Private Economic Coercion and the Civil Rights Act of 1957," 71 Yale Law Journal 537 (1962) . Articles ' ^ • "Along the N.A.A.C.P, Battlefront, " 69 Crisis 412 (1962). Bagdilcian, Ben H. "The Invisible Americans," The Saturday Evening Post . December 21-28, 1963, p. 28. Carter, Barbara. "The Role of the Civil Rights Commission," The Reporter . July 4, 1963, p. 10. Current, Goster B. "Which Way Out ...?" 68 Crisis 133 (1961). Hart, John Frazer. "The Changing Distribution of the American Negro," 50 Annals of the Association of American Geographers 242 (1960) . Keats, John, "Stay Home and Don't Vote." The Saturday Evening Post, October 26, 1963, p. 8. Laski, Harold J. "The Obsolescence of Federalism," The Nev/ Republic . May 3, 1939, p. 367. "Looking and Listening," 68 Crisis 100 (1961).

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192 "Outrage at Law," Time^ December 20, 1963, p. 21. "The Spreading Boycott," Time, February 14, 1964, p. 48. United States Congressional Docianents Congressional Globe . 1867. Congressional Recor<^ . Vol. 109, Hearincfs Bofore Subcongnittee No. 5 of the House Committee on the Judiciary , 88th Cong., 1st Sess., ser. 4 (1963). Hecirings on S. 1117 and S. 1219 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary . 88th Cong., 1st Sess. (1963). Hearings on S. 480, S. 2750. & S. 2979 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judicisirv . 87th Cong., 2nd Sess. (1962). Rt Doc, NOt 88th Cong . , let Sess. (1963) . Pt R. Doc. No. 124, 88th Cong. , 1st Sess. (1963) . p. R. Doc. N9. 178, 88th Cong. , 1st Sess. (1963) . H. R. Doc, ?Io, 251, 88th Cong. , 2d Sess. (1964) . Hf R. Rep. No. 18, 53d Cong. , 1st Sess. (1894) . United States Commission on Civil Rights Materials U. S. Coinmission on Civil Rights, Freedom to the Free ; 1863 Century of Emancipation 1963 . Washington : U.S. Government Printing Office, 1963. U, S. Commission on Civil Rights. Heeirings Before the United States Commission on Civil fiights. New Orleans. lK3uisiana. September 27. 28. 1960; Mav 5. 6. 1961 . Washington: U.S. U. S. Commission on Civil Rights, 1961 Commission on Civil Rights Report. Book 2, Education . Washington: U.S. Government Printing Office, 1961, U. S. Commission on Civil Rights. 1961 Commission on Civil Rights Report. Book 5, Justice . Washington: U.S. Government Printing Office, 1961.

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193 U. S, Coinmission on Civil Rights. 1961 Commission on Civil Rights Report, Book 1, Voting . Washington: U. S, Government Printing Office, 1961. U. S. Commission on Civil Rights. Report of the Commission 1959 . Washington: U. S. Government Printing Office, 1959. Statutory Material Federal Federal Register . 1946, 1948, United States Code . Titles 18, 42 (1952). ., United States Code Annotated . Title 42 (1963) . United States Constitutioyi . United States Revised Statutes of 1875 . United States Statutp^ at Large . Vols. 14, 16, 17, 18, 28, 36, 71, 74. State Code of Alabama . Title 17 (1961) . Georgia Code Annotated . Sections 34-117, 34-118, 34-119 (1961) . Louisiana Constitution . Louisiana Statutes Annotated HRe vised Statutes . Title 18 (1963) , Mississippi Code Annotated . Title 14 (1942, 1962). Mississippi Constitution . Horth Carolina Constitution . State Session Laws Alabama Acts Executive Session 1961 . Georgia Acts 1958 .

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194 Louisiana Acts 1962. Mississippi Lav/s 1962 . Mississippi Laws 1960 . Newspapers Atlanta Daily World . 1963. Birpiinqham World . 1963. Gainesville Sun . 1963. York Times . 1963. ^-i] . St. Petersburg Times . 1963, 1964. ' . Tiptes^^Pica^Am^ . 1963 • ^ ' ^ : • i ' • f , , ^ . ' • -' V ' ' . • . other Sources Brief for the Appellee, Kennedy v. Lewis., 325 P. 2d (5th Cir. 1963) . Brief for the Appellee, United States v. Wood , 295 P. 2d 772 {5th Cir. 196in Letter frcaa Louis K. Kauder, Attorney, Civil Rights Division, United States Department of Justice, February 18, 1964. Letter from William J, O'Hearn, Acting Chief, Voting and Elections Section, Civil Rights Division, United States Department of Justice, October 1, 1963. President's Ccamuittee on Civil Rights. To Secure These Rights . Washington: U. S. Government Printing Office, 1947. President's Commission on Registration and Voting Participation. Report on Registration and Voting Participation . Washington: U. S. Government Printing Office, 1963. Southern Regional Council. The Southern Regional Council ; Its Origin and Purpose . Atlanta: Southern Regional Council, 1944. United States Lav/ Week . 1964 .

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BICX3RAPHICAL SKETCH Robert Lee Anderson was born August 21, 1931, at St, Petersburg, Florida. In June, 1949, he was graduated from St, Petersburg Senior High School. From 1951 until 1955 he served in the United States Air Force and was stationed in the Far East. Following his discharge from the Air Force, he resumed studies at St. Petersburg Junior College and received an Associate of Arts degree from that institution in 1956. In June, 1958, he received the degree of Bachelor of Arts from the University of Florida. In June, 1960, he enrolled in the Graduate Scliool of the University of Florida. He worked as a graduate assistant in the Department of Political Science until June, 1961, and was a graduate fellow until August, 1961, when he received the degree of Master of Arts in Teaching. From September, 1961, until the present time he has pursued his work toward the degree of Doctor of Philosophy. Robert Lee Anderson is married to the former Mary Lucille Tuthill. He is a member of the American Political Science Association, the Southern Political Science Association, Phi Beta Kappa, Phi Kappa Phi, and Pi Sigma Alpha.

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This dissertation was prepared under the direction of the chairmem of the candidate's supervisory conuaittee and has been approved by all members of that committee. It was submitted to the Dean of the College of Arts and Sciences and to the Graduate Council, and was approved as partial fulfillment of the requirements for the degree of Doctor of Philosophy. August 8, 1964 Dean, Graduate School Supervisory Committee: