PROPOSAL FOR A CONSTITUTIONAL AMENDMENT TO ESTABLISH UNIVERSAL SUFFRAGE

By Chairman Hannah and Commissioners Hesburgh and Johnson The Commission's recommendation for temporary Federal registration should, if enacted by Congress, secure the right to vote in the forthcoming national elections for many qualified citizens who would otherwise, because of their race or color, be denied this most fundamental of American civil rights. But the proposed measure is clearly a stopgap.

In its investigations, hearings, and studies the Commission has seen that complex voter-qualification laws, including tests of literacy, education, and "interpretation," have been used and may readily be used arbitrarily to deny the right to vote to citizens of the United States.

Most denials of the right to vote are in fact accomplished through the discriminatory application and administration of such State laws. The difficulty of proving discrimination in any particular case is considerable. It appears to be impossible to enforce an impartial administration of the literacy tests now in force in some States, for, when there is a will to discriminate, these tests provide the way.

Therefore, as the best ultimate solution of the problem of securing and protecting the right to vote, we propose a constitutional amendment to establish a free and universal franchise throughout the United States.

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 providing clear, simple, and easily enforceable standards.

The proposed constitutional amendment would give the right to vote to every citizen who meets his State's age and residence requirement, and who is not legally confined at the time of registration or election. Age and residence are objective and simple standards. With only such readily ascertainable standards to be met, the present civil remedies of the Civil Rights Act should prove more effective in any future cases of discriminatory application. A court injunction could require the immediate registration of any person who meets these clear-cut State qualifications.

The proposed amendment is in harmony with the American tradition and with the trend in the whole democratic world. As noted in the

beginning of this section of the Commission's report, the growth of American democracy has been marked by a steady expansion of the franchise; first, by the abandonment of property qualifications, and then by conferral of suffrage upon the two great disfranchised groups, Negroes and women. Only 19 States now require that voters demonstrate their literacy. Michigan, New Hampshire, Pennsylvania, Tennessee, and Vermont have suffered no apparent harm from absence of the common provisions disqualifying mental incompetents. With minor exceptions, mostly involving election offenses, Colorado, Maine, Massachusetts, Michigan, Pennsylvania, Utah, Vermont, and West Virginia have no provisions barring certain ex-convicts from the vote, and of the States which do have such provisions, all but eight also provide for restoration of the former felon's civil rights. In only five States is the payment of a poll tax still a condition upon the suffrage. The number of Americans disqualified under each of these categories is very small compared with the approximately 90 million now normally qualified to vote. It is also small in relation to the numbers of qualified nonwhite citizens presently being disfranchised by the discriminatory application of these complex laws. The march of education has almost eliminated illiteracy. In a nation dedicated to the full development of every citizen's human potential, there is no excuse for whatever illiteracy that may remain. Ratification of the proposed amendment would, we believe, provide an additional incentive for its total elimination. Meanwhile, abundant information about political candidates and issues is available to all by way of television and radio. We believe that the time has come for the United States to take the last of its many steps toward free and universal suffrage. The ratification of this amendment would be a reaffirmation of our faith in the principles upon which this Nation was founded. It 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.

For all these reasons we propose the following Twenty-third Amendment to the Constitution of the United States.

ARTICLE XXIII

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.

SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.

SEPARATE STATEMENT REGARDING PROPOSED TWENTY-THIRD AMENDMENT

By Vice Chairman Storey and Commissioner Carlton We strongly believe in the right of every qualified citizen of the United States, irrespective of his color, race, religion, or national origin, to register, vote, and have his vote counted. We regard full protection of these rights of suffrage by both State and Federal Governments necessary and proper. Therefore, we have supported and voted for all recommendations of the Commission (except the proposed Twenty-third Amendment) to strengthen the laws and improve the administration of registration and voting procedures. However, we cannot join our distinguished colleagues in the recommendation of the proposed constitutional amendment. These are our several

reasons:

1. We believe that our Commission recommendations, if enacted into law and properly enforced, will eliminate most, if not all, of the restrictions on registration and voting by reason of race, color, religion, or national origin.

A recommendation proposing a constitutional amendment granting additional power to the Federal Government would be in order only if we had found a lack of power under existing constitutional provisions. Such is not the case.

2. On principle, proposals for constitutional amendments which would alter longstanding Federal-State relationships, such as the constitutional provision that matters pertaining to the qualifications of electors shall be left to the several States, should not be proposed in the absence of clear proof that no other action will correct an existing evil. No such proof is apparent.

3. The Constitution of the United States of America presently includes sufficient authority to the Federal Government to enable it effectively to deal with denials of the right to vote by reason of race, color, religion, and national origin.

4. The information and findings cited in support of the proposed Twenty-third Amendment disclose that some illiteracy still exists, that authoritative State statistics and studies are wholly lacking to support such an important proposal, and that our staff has not had the opportunity to make a thorough study of such a far-reaching proposal. COMMISSIONER BATTLE:

I heartily agree with the objections of Commissioners Storey and Carlton to the proposed Constitutional Amendment.

517016-59- -11

PART THREE. PUBLIC EDUCATION

CHAPTER I. THE PROBLEM IN HISTORICAL PERSPECTIVE

1

One duty of the Commission is to "study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution." The problem of school desegregation is undoubtedly the most controversial and most complex question falling within this phase of the Commission's work.

THE STATEMENT OF THE PROBLEM

Rarely has an important public issue been so clouded and confused by emotion and the expression of biased judgment as has that of discrimination in public education since the decision of the Supreme Court in the School Segregation Cases of May 17, 1954. The problem brought into focus by these decisions is the dual one of preserving unimpaired our system of public education, generally considered an essential bulwark of our democratic system of government, and of safeguarding the fundamental right to equal protection of the laws in the enjoyment of the opportunities of public education.

The Commission's undertaking with respect to education, therefore, is based upon two important premises: (1) that the American system of public education should be preserved, without impairment, and (2) that the recently recognized constitutional right to be free from racial discrimination in public education is to be realized.

This introductory chapter will undertake (1) to summarize the evolution of segregation in public education in the United States, and (2) to set forth the historical development in court decisions of the constitutional issue culminating in the School Segregation Cases.

SEGREGATION IN PUBLIC EDUCATION

Segregation by race in free public schools is known to have existed first in the non-slave States of the North.2 In 1868, when the Fourteenth Amendment was adopted, eight States that had not belonged to the Confederacy had laws providing for separate schools for colored

142 U.S.C. 1975c(a)(2).

See Roberts v. City of Boston, 59 Mass. 198-200 (1849). The Massachusetts court points out: "For half a century, separate schools have been kept in Boston for colored children, Schools for colored children were originally established at the request of colored citizens, whose children could not attend the public schools on acount of the prejudice then existing against them."

....