Under that statute, the Attorney General has the power to bring a proceeding in equity to prevent the denial of the right to vote to any person who is qualified to vote anywhere in the United States. This is a proceeding in equity which is triable by the Federal district judge without a jury. And, notwithstanding all allegations to the contrary, which might be made, it would not take a Federal judge trying a case without a jury under this statute more than a day to determine whether anyone has been wrongfully denied the right to vote on account of his race or color, and to issue an order under the statute for his registration. This is the fourth statute that is available to the Attorney General in the voting rights field. Now, I call attention to the fifth one. That is Public Law 86-449, which is known as the Civil Rights Act of 1960. That is quite an unusual statute. It provides that if a district judge has tried a case under the Civil Rights Act of 1957, and found that any person has been denied the right to vote on account of his race or color, then the court, upon application of the Attorney General in that same case, can proceed to ascertain as a matter of fact whether such denial was pursuant to a pattern of discrimination against men of the original party's race. This question is also triable by the judge without a jury. This question is presented by a motion in the cause, and the judge, by issuing an order to show cause, can limit the time for the hearing upon that question as he sees fit. The Civil Rights Act of 1960 provides that in case the judge in a trial without a jury of the question as to the existence of a pattern finds that the original party was denied the right to register or vote on account of his race or color, pursuant to a pattern, the judge has two courses of action he can take. He can either sit himself and receive applications from persons of the same race in the same election district, and pass upon the question, as a matter of fact, without a jury as to whether such applicants are qualified to vote and have been wrongfully denied the right to register to vote, or he can delegate that authority to voting referees, and these voting referees can pass on the matter, and make their findings. These voting referees are empowered by the Civil Rights Act of 1960 to do something which I don't think has ever been authorized by the Congress of the United States before. It provides that these voting referees can conduct the hearings on the question of an applicant's qualifications, and their being denied the right to register to vote in ex parte proceedings. This is the only case where you try a case against an election official without allowing him to be present or to be represented by counsel at the taking of the testimony on which the case is to be decided. Then the voting referee makes his findings. And the election official is not even granted a hearing unless he can show by affidavits to the satisfaction of the judge that he has a meritorious defense. In other words, the court passes on the question of whether the election official has a meritorious defense before hearing his evidence, except in the form of affidavit. This statute goes ahead and says that if a man's application is filed too late to be heard before the election, then he can be allowed by the district judge to vote provisionally. Under that statute, there is suf ficient power in the Office of the Attorney General to secure the registration of any qualified voter anywhere in the United States in a proceeding where the right to a jury trial does not exist and which can be heard speedily by the judge or a voting referee appointed by the judge. These things being true, there are three criminal statutes in existence under which the Attorney General can prosecute any election official who denies to any qualified voter of any race the right to register and vote. Besides, there are two additional statutes in existence, the Civil Rights Act of 1957 and the Civil Rights Act of 1960, under which the Attorney General can bring civil actions triable before Federal district judges without juries to prevent any qualified citizen from being denied the right to register or vote on account of his race or color. But the Department of Justice is not satisfied to have five statutes available to it for use in the voting rights field. It demands further legislation, which it certainly does not need. It asks for two new laws. The Department wants a statute creating a presumption that if any person has gone to school for 6 years, he shall be presumed to be literate even if he can't pass a literacy test. I don't believe that a law creating a presumption of that kind is valid. It would be contrary to the Constitution of the United States which provides in three separate places that the power to prescribe qualifications for voting, including literacy tests, belongs to the States and not to the Federal Government. The first of these sections is section 2 of article 1. This says: The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. When the Constitution was amended by the addition of amendment 17, to provide for the direct election of Senators, these same words were incorporated in the 17th amendment, which says: The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures. Then the second article of the original Constitution says in section 1: Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. The courts have held under that provision that the State legislature of each State has the sole power to determine how presidential electors shall be chosen in such State. The Supreme Court has held in the following cases that under these three provisions of the Constitution the power to prescribe qualifications for voting, including the power to prescribe literacy tests, belongs to the States, and not to the Congress. These decisions are Williams v. Mississippi, 170 U.S. 213; Guinn v. United States, 238 U.S. 347; and Lassiter v. Northampton County Board of Elections, 360 U.S. 45. This last case is a unanimous decision handed down by the Supreme Court of the United States as it is presently constituted, with the exceptions of Justices White and Goldberg, who have ascended the Supreme Court bench since that decision was rendered. Senator DIRKSEN. What was the date of that? Senator ERVIN. The Lassiter case was handed down in 1959. 21-579-64--3 How, in the light of those three constitutional provisions and those decisions of the Supreme Court, any legally trained man can advocate with any degree of conviction that Congress can nullify those three constitutional provisions by establishing a Federal presumption is something which exceeds my capacity of comprehension. I will mention one other thing Senator JOHNSTON. Senator, I think you ought to give your background. Let the people know who is speaking to us here today. I would like to have your record on the courts. Senator ERVIN. Senator, I think I can truthfully assert that I have devoted more of my life to law than I have to politics. I spent 15 years actively practicing law and 15 years serving on courts. I served as a judge of the Superior Court of North Carolina for 7 years. The superior court is a court of general jurisdiction. I also served slightly over 6 years on the Supreme Court of North Carolina. I want to mention another thing at this point. The second request of the Department of Justice for additional legislation in the voting rights field, which is incorporated in title I of the bill, is even more drastic than the ex parte proceedings authorized by the Civil Rights Act of 1960. Although it now has five separate statutes: to wit, section 242 of title 18, section 241 of title 18, section 371 of title 18, the Civil Rights Act of 1957, and the Civil Rights Act of 1960, available to it in voting rights cases, the Department of Justice is not content. It demands that Congress enact into law the provisions of title I and especially those beginning on line 10 of page 5 and ending on line 12 of page 9. These provisions would make two drastic amendments to the Civil Rights Act of 1960. In the first place, these provisions would deprive Federal district judges of the power to select voting referees of their own choosing and compel such judges to name voting referees from panels by the Federal judicial council of the circuit. In the second place, these provisions of title I provide, in effect, that the Attorney General may rob State election officials of their powers to determine the qualifications of voters under existing law and transfer such powers to voting referees selected from panels established by the Federal judicial council of the circuit merely by requesting the court to find that a voter in a particular election district has been denied the right to register to vote because of his race and merely by alleging that fewer than 15 percent of the total number of voting-age persons of the same race are registered in such election district. In other words, the Department of Justice is asking Congress to enact a new law which will enable the Department of Justice to obtain what is equivalent to a final judgment merely by making certain allegations in a complaint or a motion without any trial being had and without any evidence being offered and without any findings being made by the court. The due process clause of the fifth amendment applies to the Federal Government and all of its departments. Due process of law is a law which proceeds upon inquiry and renders judgment only after a hearing. This being true, these provisions cannot possibly be reconciled with the due process clause of the fifth amendment. To be sure these provisions provide that at some time after such final judgment is rendered in favor of the Department of Justice upon its naked and unsupported allegations, the case may be tried and the judgment reversed if such allegations are found to be untrue. This event, however, is not to take place until the State election officials have been robbed of their prerogatives under existing law and such prerogatives have been usurped and exercised under cover of these provisions by Federal officials. These provisions call to mind this ancient couplet: I oft have heard of Lydford law How in the morn they hang and draw And sit in judgment after. I sincerely trust that the Congress of the United States will not give the Department of Justice the power to obtain merely upon allegations in a complaint, without any proof, without any evidence, and without any hearing, a court order giving it the judgment which ordinarily it would only get at the end of the trial. The advocacy of these provisions indicates about the same amount of impatience that prompts a mob to lynch a man. The mob says, “Well, justice demands this man's execution. So we will just lynch the man now and try the case later.” And that is what the Department of Justice asks in this. Let's consider title II, injunctive relief against discrimination in public accommodations. I want to talk about the provisions of this title of the bill. Senator Aiken, of Vermont, has been worrying about Mrs. Murphy. And well he might. According to the quotations in the press, the Attorney General said this bill didn't apply to Mrs. Murphy, and didn't apply to little people. Let's see how this bill does apply. It refers in the first section to hotels, motels, and other public places engaged in furnishing lodging to transient guests, including guests from other States or traveling in interstate commerce. That is a very adroitly drawn section. The Federal Government certainly has no power under the interstate commerce clause, even in the opinion of the Department of Justice, to regulate whom a hotel or motel or any other public place shall receive as guests, unless those guests travel in interstate commerce. In my judgment, Congress cannot compel hotels, motels, or public lodging places even to receive persons traveling in interstate commerce. This is true because their interstate travel is interrupted when they stop at a local establishment of this nature to sleep. But the provisions of title II undertake to require all persons operating hotels, or motels, or other public places furnishing lodging to transient guests to receive any transients regardless of whether they are residents of the State in which such hotels, or motels, or places are located or residents of other States sojourning for long periods of time within the borders of the State within which such places are located or persons interrupting their interstate travel for the purpose of sleeping in such places. In other words, title II would require the reception of two groups of transients who are not connected in any way with interstate travel. Now, let's see how this applies to Mrs. Murphy. Senator ERVIN. Mrs. Murphy-Senator Aiken's imaginary constituent. All of us represent a lot of Mrs. Murphys, widows who are renting some rooms in their dwelling houses to tourists. The Attorney General says the word "public" excludes the Mrs. Murphys. A public place within the purview of the law and within the purview of this bill is any place which invites the public to patronize it. And, any lady owning a dwelling house who puts up a sign indicating that she rents rooms to transient people, that is to tourists, is operating a public place. And to show that this is true, I invite your attention to page 14 of the bill, section 202, subsection (a) and subsection (ii). This bill applies to any establishment where— 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. When a widow operates a tourist home, what does she rent to her guests? She rents rooms under a roof whose shingles have probably moved in interstate commerce. She rents beds and other furniture which have moved in interstate commerce. Under subsection (ii), section 202, on page 14, it is not a question of whether her action in renting her rooms has "a substantial effect" on interstate commerce. The only test is "whether a substantial portion" of the things she rents to tourists have moved in interstate commerce at some time in the past, however near or removed. Consequently, the bill would cover all of the Mrs. Murphys. It would also cover any shoeshine boy whose sole stock in trade consisted of one can of polish and a rag which had moved in interstate commerce. This is clearly so because such can of polish and rag would constitute a "substantial portion" of the goods which he held out for the use of the public under the provision of subsection (ii) on page 14. Section 204 lays down four tests of coverage in subsections (i), (ii), (iii), and (iv). These tests are stated in the disjunctive and not the conjunctive. Consequently, the tests in subsection (ii) would get all of the Mrs. Murphys, all the shoeshine boys, and virtually everyone else in any kind of business. The bill would get beauty parlors, barber shops, shoeshine parlors, swimming pools, and virtually everything else. It is all inclusive. And under this bill the Federal Government would extend the hand of regulation into virtually every commercial enterprise throughout the border of the United States. Is that the kind of legislation that the Congress of the United States wants to pass? Is that the kind of extension of Federal power this Nation needs? This statute, in my judgment, is unconstitutional based on every decision of the Supreme Court that has been handed down to this date. I don't guarantee what is going to happen tomorrow. But, up to this date. We have had a lot of talk as if the Civil Rights cases of 1883, 109 U.S. 3, were the only cases bearing upon questions of this kind. It is interesting to note the provisions of the 14th amendment. I think it is worth reading at this point. I can assert without fear of substantial contradiction that the 14th amendment has nothing to do with |