and others made during the same period will be reviewed and considered if there is any effort to revive the iniquitous title III.

My purpose today is to put on the record objections to an equally, though possibly less obvious, threat to our constitutional liberty. This threat is contained in proposals to nullify article I, section 2 of the Constitution, which gives to the States the power to fix qualifications of voters, and the 10th amendment which says powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The type of proposal to which I am referring varies from a form which would prohibit the imposition of a poll tax as a prerequisite to voting to the broad form of a bill which would prohibit use of any tax, property, educational, or intelligence test as a qualification for voting.

The straight anti-poll-tax bills may seem unimportant to some, because so few States are involved. It may be said those States can adjust to the prohibition, just as have other States which once used the tax as a voting qualification and then abolished it, but the important point to be observed is that if we establish, by congressional action, the principle that Congress has the right to determine any qualification of voters in all elections, that principle can be applied to every form of qualification unless the Supreme Court protects the constitutional rights of the States. Thereafter a temporary majority in the Congress will be in a position to broaden or restrict the electorate to serve its own ends; and States rights, which were the great balancing factor in our constitutional system, will cease to function.

Because I am so deeply concerned about the possibility of that ultimate result, I want to take no chance that a poll tax provision will be thoughtlessly inserted as part of the "flesh" which proponents have said they would use to clothe their "skeleton" civil rights bill. And because the subject is a technical one, which requires reference to debates in the Constitutional Convention and State ratifying conventions, contemporary comments by the authors of the Constitution and later interpretations by the courts, I want to place some pertinent material on record now with the hope that Members of the Senate will study it before any proposal of this kind actually is brought up for action.

I may say that what I shall offer today is merely a brief summary of the material I have assembled on this subject, but I hope the outline will indicate so clearly the trend of all the authorities that it will not be necessary to present it in full.

During recent years there has been a definite trend to encroach upon the rights of the States but nowhere is the infringement of powers reserved to State governments more direct than in the area of voting qualifications. Since 1939 there have been varying attempts at such encroachment made by anti-poll-tax bills. These proposals, by seeking to outlaw the poll tax, restrict State authority to defining voting qualifications. An early example was based on the assumption that the poll tax requirement resulted in fraudulent political practices. The most extreme bill, introduced in the Senate last month, forbids a State to impose a qualification of any poll or property tax, or even a literacy or intelligence test. The following analysis uses S. 2000, a less extreme measure, merely as a typical example on which to base a study of the fallacies of such legislation generally.

This analysis will supplement the complete discussion of earlier bills which I made on the floor of the Senate on August 2, 1948, recorded on pages 9753-9773, Congressional Record. My conclusion now, as it was then, is that, in view of the unconstitutional nature of anti-poll-tax legislation, the only proper course for abolition of the tax would be by State action or constitutional amendment.

THE THEORY OF S. 2000

S. 2000, one of the proposed Federal anti-poll-tax bills, would make it unlawful to collect any tax as a prerequisite to voting in a national election or to interfere with a person's voting in a national election because of his failure to pay a poll tax. The bill states that any such action "shall be deemed an interference with the manner of holding such elections, an abridgment of the right and privilege of citizens of the United States to vote for such officers, and an obstruction of the operations of the Federal Government." The bill would authorize application to a district court for an injunction against a violation or for an order compelling compliance.

In my judgment, S. 2000 would be unconstitutional because it would conflict with the constitutional provision that the qualifications for electors are to be

prescribed by the States. Here are the provisions of the Constitution of the United States which are involved:

"ARTICLE I

"Section 2. 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.

"Section 4. The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

If the imposition of a poll tax is a matter of the qualifications of a voter, it is controlled exclusively by the State under article I, section 2, and the Federal Government cannot under article I, section 4, prohibit the imposition of a poll tax under the guise of regulating the manner of the election. Accordingly, article I, section 4, of the Constitution is not a proper basis for S. 2000.

Section 3 of this bill defines the imposition of a poll tax as an interference with the manner of holding elections and also states that poll taxes shall be deemed an abridgement of the right and privilege of citizens of the United States to vote for such officers, meaning Federal officials. This may be a reference to the 14th, 15th, and 19th amendments.

Court decisions have held that the 14th and 19th amendments do not preclude the imposition of a poll tax. Moreover, since the case of Butler v. Thompson, below, has held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, of the Constitution, neither in its terms nor its application violating the 15th amendment, S. 2000 would be clearly unconstitutional.

Fortunately, the framers of the Constitution left us in no doubt on that subject, as the exclusive control of the States over voter qualifications is clearly shown in the "Constitutional Debates" and "Federalist Papers."

DIFFERING QUALIFICATIONS OF THE STATES

A. The Constitutional Convention

At the outset, we should take note of the fact that in 1789 the States had rigorous and widely differing requirements for voting. These were summarized by Chief Justice Waite in his opinion in Minor v. Happersett (21 Wall, 162 (1874) at p. 172).

For example, the general requirement was ownership of property, usually real estate. In 1789 Georgia liberalized its requirements by extending the vote to those who had prepaid taxes, even though they did not qualify by property ownership. Other States followed suit. As the usual course men of 21 years of age enjoyed the franchise. Residence restrictions sometimes existed.

These differences occasioned many debates in the Constitutional Convention on the possibility of uniform qualifications for voters. The dispute centered on whether the Constitution should limit the franchise to landowners or whether limitations should be left to the individual States. James Madison and Gouverneur Morris of Pennsylvania favored the former position. The argument was that landowners would be the safest depository of republican liberty. Moreover, they feared making qualifications dependent on the will of the States not because the States would unduly restrict the electorate but because they would be too generous in extending the privilege.

As presented by Oliver Ellsworth of Connecticut, James Wilson of Pennsylvania, and George Mason of Virginia, the argument on the other side related to the diversity of existing State qualifications. They warned that the right of suffrage was a tender point carefully guarded in the State constitutions, and that tampering with it might wreck the new Government. They pointed out that it would be difficult to settle on a uniform rule for all States and that it would be awkward if the electors of the State legislatures and Congress were not the same (vol. 5, Elliott's Debates, 385 (1866)).

In addition, they argued that a power to alter the qualifications of voters would be a dangerous power in the hands of the National Legislature. Once the principle is established that the Congress can make such changes, the power used at one time to expand the electorate might be used at another to

restrict it, and, theoretically at least, the restriction could be carried so far that there would result a depotism.

At the conclusion of the debate advocates of a ballot limited to freeholders were defeated by a vote of 7 States to 1, and the plan of the committee on detail was adopted without a dissenting vote. Its language was changed only slightly and it became that part of section 2, article I, of the Constitution which reads:

"The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature."

The words "qualifications of the electors shall be the same from time to time," etc., had been omitted from the recommendation of the committee (vol. 5, Elliott's Debates, 377).

It has been argued that this omission was for the purpose of preventing exclusive control over qualifications by the State legislatures, rather than by the people of States; and that the inclusions of "most numerous branch" of the State legislature was to assure a broad popular base. Undoubtedly this purpose was a real one, but the fact remains that as finally worded, section 2 of article I leaves to the States the choice of deciding the qualifications for the Federal electors, and for the reason that a uniform national requirement was found unworkable.

As has been indicated, the members of the Constitutional Convention were conscious of the need to satisfy the people of the various States sensitive on the subject of suffrage rights. It was therefore one of the subjects which received close attention in the "Federalist Papers" written at the time to convince State conventions to adopt the Constitution.

B. The Federalist

In No. 52 of the Federalist, it was pointed out that the Constitution made the qualification for Federal electors the same as those of the electors of the most numerous branch of the State legislature.

"The definition of the right of suffrage is very justly regarded as a fundamental article of Republican government."

The Federalist author continued:

"It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the Federal Government which ought to be dependent on the people alone."

The following words of the paragraph should be noted:

"To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention.

"The provision made by the Convention appears, therefore, to be the best that lay within their option. It must be satisfactory to every State, because it is comformable to the standard already established, or which may be established by the State itself. It will be safe to the United States because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge rights secured to them by the Federal Constitution."

Then in the 54th Federalist, it was remarked:

"The qualifications on which the right of suffrage depend are not, perhaps, the same in any two States. In some of the States the difference is very material." C. Ratifying conventions

Later, at the Massachusetts Ratifying Convention, in answer to a query as to whether Congress may prescribe a property qualification for voters, Mr. Rufus King, a member of the Federal Convention, said:

"The idea of the honorable gentleman from Douglass transcends my understanding; for the power of control given by this section extends to the manner of elections, not the qualifications of the electors."

And James Wilson, who had warned in the Constitutional Convention of the difficulty that might result if qualifications of State and national electors were different, had this to say in the Pennsylvania Convention:

"In order to know who are qualified to be electors of the House of Representatives, we are to inquire who are qualified to be electors of the legislature of

each State. If there be no legislature in the States, there can be no electors of them; if there be no such electors, there is no criterion to know who are qualified to elect Members of the House of Representatives. By this short, plain deduction, the existence of State legislatures is proved to be essential to the existence of the general government."

Those familiar with the Virginia Ratifying Convention know that Patrick Henry opposed the ratification of the Constitution on the ground that it gave the Federal Government too much power. One issue was whether the Federal Government could pass on the qualifications of the voters or whether Virginia, as in the past, could fix those qualifications. If the latter, the Federal Government would merely determine the times, places, and manner, if it wished to do so, of holding those elections, but those who had the right to vote under the State law would then freely participate.

Wilson Nicholas, a member of the Philadelphia Convention, came to Richmond and explained what had been done in Philadelphia. He gave the members of the Richmond Ratifying Convention positive assurance that the Federal Government could not and never would undertake to pass upon and fix the qualifications of voters.

Virginia agreed to ratify only on the assurance that the first session of the Congress would propose bill-of-rights amendments to the Constitution, and even went a step further when the convention named a committee, headed by Governor Edmond Randolph, and including James Madison and John Marshall, to draft a form of ratification that would include certain reservations as to States rights.

The resolution reported by that committee and adopted by the convention said: "The powers granted under the Constitution being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and at their will ***”

In explaining the voting plan to the North Carolina Convention, John Steel, like Wilson Nicholas, said:

“* * * Can they, without a most manifest violation of the Constitution, alter the qualifications of the electors? The power over the manner of elections does not include that of saying who shall vote. The Constitution expressly says that the qualifications are those which entitle a man to vote for a State representative. It is then, clearly and indubitably fixed and determined who shall be the electors; and the power over the manner only enables them to determine how these electors shall elect-whether by ballot, or by vote, or by any other way." The significance of this history is reinforced by the fact that as late as 1912, when the 17th amendment was proposed by Congress, providing for popular election of Senators, language was used identical to that of article I, section 2. This amendment says:

"The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature."

It should be noted that these words were adopted after more than a century of experience with the suffrage provisions contained in the Constitution and also after there had been ample time to observe operations of the newer poll taxes which were imposed between 1875 and 1908.

D. Federalist interpretation of “manner"

The fourth section of article I reads:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

The main purpose of this section was to enable both the State and Federal Governments to preserve themselves by the regulation of elections. See Nos. 59 and 60, Federalist Papers.

Also, discussing article I, section 4, in the Virginia Ratifying Convention, Mr. Madison explained:

"It was found impossible to fix the time, place, and manner of the election of Representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity and prevent its own dissolution.

"And, considering the State governments and general government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former and the general regulations to the latter. Were they exclusively under the control of the State governments, the general government might easily be dissolved. But if they be regulated properly by the State legislatures, the congressional control will very probably never be exercised."

This, it should be remarked, deals only with the times, places, and manner of holding elections and not with qualifications of voters since, under the provision of article I, section 2, a State could not attempt to dissolve the general government by disqualifying voters without automatically dissolving its own government. It is essentially a distinction between substance and procedure. This distinction was made by a concurring opinion in Newberry v. U.S., 256 U.S. 232, 280 (1920).

Arguments have been made that "manner" does not refer merely to procedure of elections; but to accept that premise is to agree to what the entire thrust of the constitutional debates refute, that the central government could impose uniform franchise qualifications. Rather, Hamilton argues that once the States set up a qualification, the central government could insist that it be carried out, i.e., that elections be held. Hamilton's analysis was reinforced by the majority opinion in Newberry v. U.S., where Justice McReynolds states that "manner" of holding elections does not mean power broadly to regulate them (at 256). Moreover, this clause has been used as the author foresaw, to protect a Federal election from corruption, later referred to.

The foregoing history is convincing evidence that the members of the Constitutional Convention and the ratifying conventions intended the Constitution to give to the States and to the States only the authority to prescribe qualifications for voters. The courts have consistently followed this interpretation.

COURT INTERPRETATION OF SECTIONS 2 AND 4 OF ARTICLE I

In Ex parte Yarbrough, 110 U.S. 651 (1884), the Court said, after quoting section 2, article I:

"The States in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for Members of Congress. Nor can they prescribe the qualifications for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for Members of Congress in that State. It adopts the qualification thus furnished as the qualification of its own electors for Members of Congress" (at 663).

See also Swafford v. Templeton, 185 U.S. 487 (1902), following Yarbrough and pointing out once more that it is the Constitution, not Congress, that adopts the qualifications of State electors. McPherson v. Blacker, 146 U.S. 1, 27, 35 (1892) reaches the same conclusion.

State power over definition of voter qualification was again affirmed by the Supreme Court as recently as June 8, 1959. In Lassiter v. Northampton County Board of Elections, upholding a North Carolina illiteracy test, Justice Douglas said:

"The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised" (at page 6).

The main discussion of the Court in Yarbrough was interpretation of section 4, article I, Congress power over the "manner" of holding elections. The theory of protection against corruption of qualified voting was fully developed in this

'case.

Yarbrough and others were prosecuted for interfering by physical attack with the exercise of the right to vote of certain qualified voters in an election of a Member of Congress from Georgia. After holding that Congress under the quoted section could pass an act prohibiting such violence, Justice Miller wrote: "Can it be doubted that Congress can by law protect the act of voting, the place where it is done, and the man who votes from personal violence or intimidation and the election itself from corruption and fraud?" (at 661).

Or a suppression of voting rights by electors who refuse to accept payment of a poll tax prerequisite may be protected by congressional action under section 4, article I, U.S. v. Munford, C.C.E.D. Va., 16 Fed. Rep. 223, 228 (1883).

It is here in the realm of protection that United States v. Classic, 313 U.S. 299, 320 (1941) is appropriate. It points out that section 4 of article I is supplemented by Congress power to pass implementing legislation under the