I need not tell this committee, which is made up of lawyers, who have studied this for years, that the right to vote is one of our most precious rights. It is the cornerstone of our form of government and affords protection for our other rights. It must be zealously safeguarded.

Article I, sections 2 and 4, of the Constitution place in the Congress the power and the duty to protect by appropriate laws elections for office under the Government of the United States. With respect to elections to State and local office, the fifteenth amendment to the Constitution provides that 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. And the fourteenth amendment prohibits any State from making or enforcing laws which abridge the privileges and immunities of citizens of the United States and from denying to any person the equal protection of the laws. The courts have held that these prohibitions in the fourteenth amendment operate against election laws which discriminate on account of race, color, religion or national origin.

To implement these provisions of the Constitution Congress passed many years ago a voting statute, now title 42, United States Code, section 1971 (Rev. Stat. 2004), which provides that all citizens shall be entitled and allowed to vote at all elections, State or Federal, without distinction based upon race or color. It was the duty of Congress under the Constitution and its amendments to pass legislation giving full protection to the right to vote and undoubtedly it was the intent of Congress to provide such protection when it passed title 42, United States Code, section 1971.

However, in the years since its enactment, a number of serious defects in the statute have become plainly apparent, most of them having been pointed out in actual cases in court. The most obvious defect in this law is that it does not protect the voters in Federal elections from unlawful interference with their voting rights by private persons. It applies only to those who act "under color of law," which means to public officials. The activities of private persons and organizations designed to disfranchise voters in Federal or State elections on account of race or color are not covered by the present wording of title 42, United States Code, section 1971 and the statute fails, therefore, to afford voters the full protection from discrimination contemplated and guaranteed by the Constitution and its amendments. Also section 1971 of title 42, United States Code, is clearly defective in another important respect. It fails to lodge in the Attorney General any authority to invoke civil remedies for enforcement of voting rights and is particularly lacking in any provision authorizing the Attorney General to apply to the courts for preventive relief against violation of voting rights. We think this is a major defect and I'll try to point out why. The ultimate goal of the Constitution and of Congress is the safeguarding of the free exercise of the voting right, acknowledging the legitimate power of the States to prescribe necesand fair voting qualifications. Civil proceedings by the Attorney General to forestall illegal interference and denial of the right to vote, I think, would be far more effective in achieving this goal than the private suits for damages presently authorized by the statute or the criminal proceedings authorized under other laws which can never be instituted until after the harm is done.

sary

I think that Congress should now recognize that in order to properly execute the Constitution and its amendments, and in order to perfect the intended application of the statute, section 1971 of title 42, United States Code, should be amended in these particular ways.

First, the addition of a section which will prevent anyone, whether acting under color of law or not, from threatening, intimidating or coercing an individual in his right to vote in any election, general, special or primary, concerning candidates for Federal office.

Second, authorization to the Attorney General to bring civil proceedings that I mentioned a moment ago on behalf of the United States or for that matter any aggrieved person for preventive or other civil relief in any case covered by the statute.

Third, express provision that all State administrative and judicial remedies need not be first exhausted before resort to the Federal courts. We have put these provisions into a third bill, which is S. 3718. 4. Amendment of another civil rights statute to include the addition of civil remedies in the Department of Justice for their enforcement:

In attempting to achieve the constitutional goal of respect for and observance of the civil rights of individuals, it has been, in my opinion, a mistake for the Congress to have relied so heavily upon the criminal law and to have made so little use of the more flexible and often more practical and effective processes of the civil courts. Although the Attorney General, under present statutes, can prosecute after violations of the civil rights laws have occurred, he has no authority at the present time to seek preventive relief in the courts when violations are threatened or, in spite of an occasional arrest or prosecution, are persistently repeated.

Criminal prosecution can never begin until after the harm is done and it can never be invoked to forestall a violation of civil rights no matter how obvious the threat of violation may be. Moreover, criminal prosecutions for civil rights violations, when they involve State or local officials as they often do, stir up an immense amount of ill feeling in the community and inevitably tend to cause very bad relations between State and local officials on the one hand and the Federal officials on the other who are responsible for the investigation and prosecution. A great deal of this could be avoided if the Congress would authorize the Attorney General to seek preventive and other appropriate relief from the civil courts in civil rights cases.

I would like to give you one illustration.

In 1952, several Negro citizens of a certain county in Mississippi submitted affidavits to us alleging that because of their race the registrar of voters refused to register them. Although the Mississippi statutes at that time required only that an applicant be able to read and write the Constituion, these affidavits alleged that the registrar demanded that the Negro citizens answer such questions as "What is due process of law?" "How many bubbles in a bar of soap?" and questions of that type. Those submitting affidavits included college graduates, teachers and businessmen, yet none of them, according to the registrar, could meet the voting requirements. The reason I give the illustration is if the Attorney General had the power to invoke the injunctive process, the registrar could have been ordered to stop these discriminatory practices and qualify these citizens according to Mississippi law.

Senator JOHNSTON. Do you know what the law is? Could you give that right here?

Attorney General BROWNELL. I don't have it right here

Senator JOHNSTON. I would like you to read that into your statement right here, what the Mississippi law is with regard to that. Attorney General BROWNELL. I can summarize it for you. I haven't got the language here, but I can put that into the record. The sum and substance is that they must be able to read and write. Senator JOHNSTON. Does it use the word "interpret" the Constitution? Some States have that.

Attorney General BROWNELL. I'll check that, and I'll be glad to put it in the record.

Senator JOHNSTON. I don't know whether it does or not, but some do. Attorney General BROWNELL. I'll be glad to add that to the record of the proceedings.

(This information was subsequently received by letter dated June 4, 1956, and is as follows :)

Hon. JAMES O. EASTLAND,

Chairman, Committee on the Judiciary,

United States Senate,
Washington, D. C.

JUNE 4, 1956.

DEAR SENATOR: At the hearing held on May 16, 1956, before the Committee on the Judiciary on certain civil rights bills, including S. 3604, S. 3605, S. 3717 and S. 3718, Hon. Olin D. Johnston requested that the Attorney General submit for the record the provisions of Mississippi laws in force in 1952 relating to qualifications necessary to enable an individual to register as a voter. Mr. Robert B. Young of the staff requested that the Attorney General submit certain affidavits referred to in his statement to the committee concerning questions allegedly asked of Negro citizens who sought to register in a Mississippi county. (1) The relevant provisions (excluding such matters as residence, nonconviction of certain crimes, etc.) of the Mississippi Constitution and statutes as they existed in 1952 are as follows.

Article 12, section 244, Mississippi Constitution:

"On and after the first day of January A. D. 1892, every elector shall, in addition to the foregoing qualifications, be able to read any section of the Constitution of this State; or he shall be able to understand the same when read to him, or give a reasonable interpretation thereof. A new registration shall be made before the next ensuing election after January the first A. D. 1892."

Section 3212, Title 14, Mississippi Code, 1942:

"A person shall not be registered unless he be able to read any section of the constitution, or in case he cannot read, unless he be able to understand any section thereof when read to him, or to give a reasonable interpretation thereof." (2) We are enclosing herewith two photostats of the affidavits requested by Mr. Young. Since the name of the affiant is under the circumstances regarded as confidential, it, as will be noted, has been deleted. Affidavits identical with the photostat enclosed were filed by seven individuals.

We might add with respect to this situation that before the Negro citizens of Forrest County complained to this Department, they instituted a civil action against the registrar of voters in the United States District Court for the Southern District of Mississippi seeking to restrain the racial discrimination allegedly involved in the registrar's refusal to register Negroes as voters. When the case reached the Court of Appeals, Fifth Circuit, in 1951, that court held (Peay v. Cox 190 F. 2d 123) that the complainants were not entitled to the relief sought since they had failed to exhaust the administrative remedies (consisting of appeals to the county election commissioners and thence through the circuit court to the supreme court of the State) provided by the State. When the matter was subsequently referred to this Department it was, after investigation, presented to a Federal grand jury in Mississippi. The grand jury declined to return an indictment.

Sincerely,

WILLIAM P. ROGERS, Deputy Attorney General.

Attorney General BROWNELL.

Another illustration:

The United States Supreme Court recently reversed the conviction of a Negro sentenced to death by a State court because of a showing that Negroes had been systematically excluded from the panels of the grand and petit juries that had indicted and tried him. In so doing the Supreme Court stated that according to the undisputed evidence in the record before it systematic discrimination against Negroes in the selection of jury panels had persisted for many years past in the county where the case had been tried. In its opinion the Court mentioned parenthetically, but we thought pointedly, that such discrimination was a denial of equal protection of the laws, and it would follow that it was a violation of the Federal civil rights laws. Accordingly, the Department of Justice had no alternative except to institute an investigation to determine whether in the selection of jury panels in the county in question the civil rights laws of the United States were being violated, as suggested by the record before the Supreme Court. I think it must be clear to you that the mere institution of this inquiry aroused a storm of indignation in the county and State in question. This is understandable since, if such violations were continuing the only course open to the Government under the laws as they stand now, was criminal prosecution of those responsible. That might well have meant the indictment in the Federal court of the local court attachés and others responsible under the circumstances.

Fortunately the Department was never faced with that disagreeable duty. The investigation showed that, whatever the practice may have been during the earlier years with which the Supreme Court's record was concerned, in recent years there had been no discrimination against Negroes in the selection of juries in that county.

Supposing, however, that on investigation, the facts had proved otherwise. The necessarily resulting prosecution would have stirred up such dissension and ill will in the community that it might well have done more harm than good. Such unfortunate collisions in the criminal courts between Federal and State officials can be avoided if the Congress would authorize the Attorney General to apply to the civil courts for preventive relief in civil rights cases. In such a proceeding the facts can be determined, the rights of the parties adjudicated and future violations of the law prevented by proper order of the court without having to subject State officials to the indignity, hazards and personal expense of a criminal prosecution in the Federal

courts.

Congress could authorize the Attorney General to seek civil remedies in the civil courts for the enforcement of civil rights by a simple amendment to section 1985 of title 42, United States Code (R. S. 1980). That is the statute that presently authorizes civil suits by private persons who are injured by acts done in furtherance of a conspiracy to do any of the following things: (1) to prevent officers from performing their duties; (2) to obstruct justice; (3) to deprive persons of their rights to the equal protection of the laws and equal privileges under the laws.

A subsection could be added to that statute to give authority to the Attorney General to institute a civil action for redress or preventive relief whenever any persons have engaged or are about to engage in

Almost the first day I was down here, we had the Thompson Restaurant case, which was in the courts then, on which we filed a brief, and got a favorable decision from the courts, which laid the groundwork for doing away with discrimination here in the Nation's Capital, specifically in the restaurants. I can't exaggerate the importance that has had nationwide.

Then we have had 2 years of steady litigation in the Supreme Court on school segregation, which took a great deal of time. You know the results there.

Furthermore, we worked closely with the President's Advisory Committee on eliminating discrimination in employment and contracts. We did the legal work on abolishing discrimination in the Armed Forces.

All of those things we have been active on. In addition to that, we have had great success in carrying our cases forward in elimination of peonage, stopping a revival of this Ku Klux Klan in one of the States, and as I mentioned in my prepared statement, we are now getting to the point where we are participating in some of these civil cases. I wouldn't want your question to imply we haven't been awfully busy on this.

Senator HENNINGS. You may know that I haven't any intention of being misleading. You know these were initiated in the preceding administration.

Attorney General BROWNELL. A great many of them, yes.

Senator HENNINGS. It has not been initiated, and I don't mean to bring this into the realm of politics, except to indicate perhaps insofar as being a knight in shining armor, and we welcome you, indeed, to that fold, and hope you will continue your good work in the prosecution of these good cases.

Attorney General BROWNELL. I am not here as a knight in shining armor today. I read your speech in which you pointed out your 20 years of activity in this field.

I have tried throughout my private and public life to do the same thing. I do want to say I am not here today except in my capacity to carry out the President's program, and I claim no personal credit whatsoever.

Senator HENNINGS. I just wanted it clear that many of the things that this administration has done have been initiated in preceding administrations.

Attorney General BROWNELL. I think there are men of good will in both parties, who want to see these objectives attained.

If .

Senator HENNINGS. Certainly I can agree with you on that. If you will forgive me, I think that we should have the record clear on some things.

Attorney General BROWNELL. I agree with you on that.

Senator HENNINGS. We welcome your suggestion, for example, that there be a Commission on Civil Rights in the Department of Justice. At my request on March 22, 1955, this letter was addressed to you, signed by the late Harley Kilgore, former chairman of the Committee on the Judiciary. The letter reads as follows:

DEAR MR. ATTORNEY GENERAL: Attached herewith are copies of S. 902, S. 905, S. 906, and S. 907, concerning the protection of civil rights, amending and supplementing existing civil rights statutes, and establishing a Commission on Civil Rights in the executive branch of the Government.