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"necessary and proper" clause, article I, section 8, clause 18. The case does not stand for a general regulation of qualifications, for the holding of the case was that a primary was part of a general election.
The foregoing authorities demonstrate that the Federal Government may protect the purity of its elections—but to equate all poll tax statutes with corruption is to miss the point. Those who believe corruption is the result have power to pass Federal legislation specifically outlawing such abuses as the purchase of poll tax receipts.
I have endeavored to show that the purpose of the two sections of the Constitution when written and as judicially interpreted does not admit of any restriction on State power to define voter qualifications. Nowhere in the body of the original Constitution will be found a restriction on the discretion of the States in fixing the qualifications of voters. However, restrictions were later added by the 14th, 15th, and 19th amendments. I point out that they were made effective by amending the Constitution, which is the only proper approach that should be taken by those who seek to eliminate the poll tax requirement.
What is the nature of these restrictions? Do they forbid a poll tax qualification?
THE MEANING OF THE 14TH AND 19TH AMENDMENTS
The 14th amendment provides :
“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."
In Minor v. Happersett, 21 Wall. 162 (1874), following the adoption of the 14th amendment, a woman argued that a Missouri law which limited the franchise to men deprived her of citizenship rights which the amendment gave her. The Court denied her claim, because the right to vote before the amendment was not necessarily one of the privileges or immunities of citizenship, and the amendment did not add to them. “It simply furnished an additional guarantee for the protection of such as (s) he already had” (at 171). The Court concluded with the statement that it was "unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void" (at page 178).
See also U.S. v. Cruikshank, 92 U.S. 542, 554 (1875).
In the case of Breedlove v. Suttles (302 U.S. 277, 238 (1937)), a Georgia statute making a poll tax a voting prerequisite to Federal and State elections was attacked on the ground that it violated the 14th and 19th amendments. The tax in question applied to all inhabitants of Georgia between the ages of 21 and 60, with an exception for females who did not register for voting. The Court held that the classification of the law, not being an invalid discrimination, did not violate the equal protection clause of the 14th amendment. The Court also held that the exemption for women who did not vote was not in violation of the 19th amendment. In the course of its opinion the Court also stated clearly that the poll tax was not prohibited by the privileges and immunities clause of the 14th amendment and was a proper qualification for voting for the States to impose.
"To make payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the 14th amendment. Privilege of voting is not derived from the United States, but is conferred by the State and save as restrained by the 15th and 19th amendments and other provisions of the Federal Constitution, the State may condition suffrage as it deems appropriate (Minor v. Happersett, 21 Wall. 162, 170 et seq. ; Ex Parte Yarbrough, 110 U.S. 651, 664–665; McPherson v. Blacker, 146 U.S. 1, 37–38; Guinn v. United States, 238 U.S. 347, 362). The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources (Hamilton v. Regents, 293 U.S. 245, 261)."
There have been attempts to distinguish the Breedlove case on the grounds that the voting registration was for both State and Federal elections, and thus the necessity for a State to control its own election dictated the result.
But the distinction appears without merit since a later case solely involved a Federal election, Pirtle v. Brown (C.A. 6 (1941) 118 F. 2d 218, Cert. Den. 314 U.S. 621). A citizen of Tennessee otherwise qualified was refused the right to vote in a special election to fill a vacancy in the House of Representatives because he had not paid the poll tax. The reasoning of Breedlove was followed, and the Supreme Court denied a petition for review.
These two cases also serve to destroy the notion, sometimes advanced, that a poll tax is a tax on a national function, that of voting, and hence unconstitu. tional.
THE MEANING OF THE 15TH AMENDMENT
The restrictions of the 14th and 19th amendments have been studied. I should now like to examine that of the 15th, which reads:
"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.
“SEC. 2. The Congress shall have power to enforce this article by appropriate legislation."
In United States v. Reese (92 U.S. 214 (1875)), the Court construed a statute passed under Congress' power of section 2 to enact appropriate legislation. The act was invoked by the applicant because his failure to pay a poll tax enabled the inspectors to prohibit his voting in a municipal election. In the opinion of Chief Justice Waite the following statement is made:
"Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress.
"The 15th amendment does not confer the right of sufferage upon anyone. It prevents the States, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous conditions of servitude. Before its adoption, this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property, or education. Now it is not. * * *
See also Guinn and Beal v. United States (238 U.S. 347, 362 (1915)), where Chief Justice White stated for the Court that the States retained the power under article I, section 2, to establish qualifications of voters, “except of course as to the subject with which the amendment (15th) deals and to the extent that obedience to its command is necessary.”
* * *
VIRGINIA POLL TAX HELD VALID
The question of Virginia poll tax as a prerequisite to voting was reviewed by a special three-judge court as recently as 1951 in Butler v. Thompson, D.C.E.D. Va., 97 F. Supp. 17, affirmed, 341 U.S. 937. Judge Dobie quoted from an earlier opinion in the case of Saunders v. Wilkins, 152 F. 2d 235, 237, as follows:
"** * the decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the 14th amendment. The privilege of voting is derived from the State and not from the National Government. The qualification of voters in an election for Members of Congress is set out in article I, section 2, clause 1 of the Federal Constitution which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S. Ct. 205, 82 L. Ed. 252, held that a poll tax prescribed by the constitution and statutes of the State of Georgia did not offend the Federal Constitution.”
Then followed the quotation from Breedlove v. Suttles, which I quoted earlier.
The latter part of Butler v. Thompson discussed the general principle that a statute may be administered in such a fashion as to be unconstitutional even though it is fair on its face, under the 14th amendment, as in Yick Wo v. Hopkins, 118 U.S. 356 or under the 15th amendment as in Lane v. Wilson, 307 U.S. 268. Judge Dobie reviewed the administration of the poll tax in Virginia and came to the conclusion on the basis of the evidence presented to him that it was being fairly administered, without discrimination on the basis of race.
Accordingly, Judge Dobie, speaking for the unanimous three-judge court, held that the Virginia poll tax statute did not violate either the 14th amendment or the 15th amendment, and was valid under article I, section 2 of the Constitution of the United States.
ENABLING LEGISLATION OVER POLL TAXES PREEMPTED BY COURT DECISION
S. 2000 and similar bills would make unlawful all poll taxes as a prerequisite for voting, presumably as a violation of the 14th or 15th amendments. On its face, S. 2000, would prohibit the Virginia poll tax as a prerequisite for voting. But the case of Butler v. Thompson, above, has held that the Virginia poll tax is a valid exercise of the State's authority under article I, section 2, of the Constitution, and neither in its terms nor in its application violates the 14th or 15th amendments. S. 2000 purports to make a congressional finding of a fact which the Supreme Court has held not to be a fact. It exceeds the power of the Congress under the 14th and 15th amendments to enforce those amendments by appropriate legislation.
REPUBLICAN FORM OF GOVERNMENT
Not more than passing attention need be given to argument based on section 4, article IV. This section provides :
“The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence."
Under this section it is contended that Congress may pass appropriate legislation under the “necessary and proper" clause to outlaw the poll tax because it reduces the size of the electorate, therefore denying a republican form of government. It is added that this legislation will not be unconstitutional since the Supreme Court historically has refused review of such a political question.
The short answer to this approach is that the definition of a republican form of government may only be found by examining those of the States when they adopted the Constitution. Among the qualifications which prohibited universal suffrage were tax statutes including poll taxes. See the explanation of this section by Madison in No. 43, Federalist. Moreover, such is the judicial interpretation, Minor v. Happersett, above, at 175–176.
Any attempt of the Congress to invade the rights of the States to fix the qualifications of their electors would be a serious threat to constitutional government.
Senator KEFAUVER. Are there any other requests?
Mr. KIRBY. I should like to offer, Mr. Chairman, to be appended to this portion of the hearings, three studies by the Library of Congress: one entitled "Qualifications for Voting, Constitutional and Statutory Provisions of the States," another, “Changes in Poll Tax in Certain States During the Past 20 Years," and also “Poll Taxes as Levied in New England States."
Senator KEFAUVER. We will let them be printed an an appendix to the record of this hearing.
Mr. KIRBY. That is all I have, sir. Senator KEFAUVER. We will stand in recess subject to further call of the Chair.
(Whereupon, at 10:15 a.m., the committee adjourned, subject to the call of the Chair.)
NOMINATION AND ELECTION OF PRESIDENT AND VICE
PRESIDENT AND QUALIFICATIONS FOR VOTING
FRIDAY, SEPTEMBER 8, 1961
Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m., in room 357, Old Senate Office Building, Hon. Estes Kefauver (chairman of the subcommittee) presiding:
Present: Senators Kefauver (presiding) and Keating.
This is the last scheduled meeting during this session of the Senate of the Subcommittee on Constitutional Amendments.
We have up to this point heard everybody who has expressed a desire to testify and to give their views on the various resolutions to amend the Constitution which are pending before this subcommittee and have been the subject of these hearings on the Federal elections system.
I want to say that we have had some very thoughtful and helpful testimony from Members of the Senate, political scientists, lawyers, and other persons interested in the Government, also from representatives of the executive branch of our Government.
The chairman of the committee wishes to express his appreciation for the very fine work done by Jim Kirby, the counsel for the subcommittee, and for the arrangements made by him for the conduct of the hearings.
The subcommittee is honored this morning to have with us Senator John Stennis of Mississippi, whom the chairman knows to be a very able, thoughtful Senator, and a fine lawyer and jurist who has had much experience and who has good knowledge and ideas of the Constitution of the United States.
It is my understanding that Senator Stennis will testify in connection with Senate Joint Resolution 58 and Senate Joint Resolution 81, which have previously been made a part of the record, and which have to do with qualifications of voters in Federal elections insofar as the poll tax is concerned. We will be glad to hear from you, Senator Stennis.
STATEMENT OF HON. JOHN STENNIS, A U.S. SENATOR FROM THE
STATE OF MISSISSIPPI
Senator STENNIS. Thank you very much, Mr. Chairman, for your words of welcome and greeting. I appreciate being here before the subcommittee and I appreciate your arranging the time, too, from last week when I was unable to be here due to the
of many other matters that we all have had in these last days.
Senator KEFAUVER. We were glad to arrange a date so as to make it possible for you to come.
Senator STENNIS. I appreciate it.
Mr. Chairman, with reference to the application now of the payment of a poll tax as a prerequisite for voting, this is a subject that is as old as my memory, because my State has had this minimum. amount as a requirement during my lifetime, and I don't treasure any privilege and thrill any more than I do the first time that I voted and the first time it was my privilege to pay a small token amount, $2, the first tax I ever paid. And that was all that I was assessed with the first year, just a poll tax. I felt that it qualified me to take part in a privilege, not a right but a privilege of choosing our officers, from constable to Governor and President of the United States. I wouldn't swap for anything the exhilaration of that moment a good many years ago.
Senator KEFAUVER. Are poll taxes a requirement of the Mississippi constitution?
Senator STENNIS. That is correct. The provision is for the payment of $2 per year, and it is noncumulative beyond 2 years. In other words, if you become delinquent or did not pay it you can requalify by paying only $4, even though it might have been 10 years since you had been on the list. It does not apply to anyone just becoming 21 years of age, and does not apply to anyone who has attained the age of 60 years.
Senator KEFAUVER. Does it apply to women?
Senator STENNIS. Yes, all alike. But no one beyond the age of 60 years. And it goes exclusively into the common school fund and is used exclusively for school purposes.
Senator KEFAUVER. How much does it bring in in the way of revenue a year?
Senator STENNIS. I don't have those figures with me, but it brings in enough to make a difference.
We had something like 400,000 votes cast in one primary election I remember recently, over that many. And all of those, of course, did not pay a poll tax, those just becoming 21 did not pay, and those 60 or above did not pay, but most all between did.
Mr. Chairman, I want to say that I am in agreement with the legal theory of the sponsors of these measures to the extent that I, too, feel that if the Federal Government is to be injected into the matter of prescribing voter qualifications, it is necessary that it be done by the constitutional amendment process.
The constitutional language pertaining to election of so-called national offices is clear and explicit in vesting this power in the States. It provides, in article I, section 2, and in the 17th amendment, that electors for the offices of Representative and Senator, respectively,