Enforcing the 15th

Ninety-five years ago, when the U.S. added the 15th Amendment to the Constitution, President Ulysses S. Grant called it "a measure of grander importance than any other one act of the kind, from the foundation of our free Government to the present day." The 15th did indeed have a grand ring: it promised 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."

Nevertheless, the great promise of the 15th Amendment was never fulfilled; it was like a stirring march that was written but never played. It needed strong legislative implementation to make it come alive.

The voting rights bill that President Johnson sent to Congress last week strikes up the band. As Attorney General Nicholas Katzenbach, prime mover and a key author of the bill, explained to a House Judiciary Subcommittee last week: "This bill applies to every kind of election, federal, state and local, including primaries. It is designed to deal with the two principal means of frustrating the 15th Amendment: the use of onerous, vague, unfair tests and devices enacted for the purpose of disenfranchising Negroes, and the discriminatory administration of these and other kinds of registration requirements."

Limited Franchise. The voting rights bill did not spring entirely from spur-of-the-moment shock at the outrages in Selma. Back in November, the President had ordered White House aides and Justice Department attorneys to begin designing a powerful and unprecedented measure to assure Negro voting rights. Well aware that it would be subjected to a quick and savage attack from the South on constitutional grounds, Johnson warned Katzenbach: "I want this bill completely legal." That was possible. But to make it completely tamperproof was another matter.

The notion that the Constitution absolutely assures every citizen the right to vote is quite wrong. "At the time the Constitution was framed," explains University of Chicago Law Professor Philip Kurland, "it provided for only a limited franchise." That franchise in 1789 went almost exclusively to white males; most Negroes were slaves, with no rights at all, and it was to be 131 years before women would be permitted to vote.

The 15th Amendment, enacted by zealous Reconstructionists, was indeed a historic cornerstone. It gave Congress the power to enforce equal voting rights through legislation, in effect overriding Article 1, Section 2 of the Constitution, which leaves voting qualifications entirely up to the states. But the legislation that Congress devised was more often than not sloppily written or beyond constitutional bounds. The effect of it all was virtual disenfranchisement of Negroes in the Deep South.

Burn the Papers. An uneasy stirring of conscience in 1957 finally moved Congress to pass a civil rights bill that allowed the Government to initiate suits in cases of voting discrimination or intimidation. Again, in 1960 and 1964, the laws were revised to make it easier for Justice Department lawyers to get action on voting suits. Still, the courts drifted along at a painfully slow pace. Seventy-one suits have been filed by the Government since the 1957 law was passed. Yet in only about a dozen of these cases have courts handed down orders with enough muscle actually to halt discrimination.

All in all, it was an exercise in futility. No sooner would the Government dislodge one unjust voting law than Southern legislatures would dream up another. "Then," says Nick Katzenbach, "you've got to bring suits to throw these out too. You've got to go all the way to the Supreme Court, and when you get that done, there's nothing to prevent them from coming up with something else."

Unsurprisingly, Justice Department lawyers devote an average of 28 months' hard labor to each such suit. In a Montgomery, Ala., case, for example, the Government had to analyze 36,000 pages of voter applications and subpoena 185 witnesses; six lawyers worked a full year just to prepare the case for court. When Congress authorized free Government access to registration records, Mississippi's legislature simply passed a law empowering state registrars to burn their papers. A voting-discrimination suit against officials in Selma was started in April 1961, but it was not until last month that an effective court order was produced--and Selma's registration history, so eloquently depicted in current headlines, testifies to the effectiveness of that court order.

Aimed at the Barricades. As Selma's angry impatience exploded, Lyndon Johnson realized that the time was ripe to go after the widest possible support for his bill. Key figures in the bipartisan drafting were Republican Senate Leader Everett Dirksen, Democratic Majority Leader Mike Mansfield and Katzenbach. Each man set his own legal staff to work, writing drafts of the new bill, refining, plugging loopholes, setting new standards, comparing notes. At each stage Lyndon Johnson studied the proposals and made suggestions. The 24th Amendment to the Constitution already outlaws poll taxes in federal elections, and now Johnson wanted a section abolishing poll taxes in local elections too. Katzenbach advised against it, since the Supreme Court is expected soon to rule on a suit involving Virginia's poll tax.

The product of the joint enterprise, as proposed in Congress last week, is based firmly on the 15th Amendment. More important, it is aimed precisely at the barricades that have delayed quick action in the past. Significantly, most of the power to act in voting cases would be moved out of the courts and into the hands of the executive branch. The bill would slam hardest at its biggest targets --those states with the most outstanding records of voter discrimination.

No Coincidence. Under a carefully inclusive formula, the bill covers any state or county where 1) a literacy test or similar qualifying device was in force as of Nov. 1, 1964, and where 2) fewer than 50% of voting-age residents either were registered or cast ballots in the 1964 presidential election. "The premise," Katzenbach says, "is that the coincidence of low electoral participation and the use of tests and devices results from racial discrimination in the administration of the tests and devices."

By no coincidence, that formula is calculated to attack the most flagrant rights offenders in Mississippi, Alabama, Louisiana, Georgia, South Carolina, Virginia and 34 counties in North Carolina. Under the bill, the Attorney General can abolish the literacy tests in those places for ten years. He also has the power to replace local registration officials with federal registrars.

Big Fish. Inclusive as they tried to be, drafters of the bill did miss some states with records of voting abuses. There is voter discrimination in Florida, Arkansas and Tennessee, but they do not fall under the bill's provisions because those states do not require literacy tests. Says a Justice Department attorney: "If we had tried to use a finer net, we would have caught a lot more nondiscriminatory fish."

As it turns out, the net does catch a few apparently innocent fish. Aroostook County, Me.; Elmore County, Idaho; Apache County, Ariz., and the whole state of Alaska would be subject to federal control under the new bill because they, too, used literacy tests and failed to turn out 50% of their eligible voters in November. Says Katzenbach: "As far as I know, it may have snowed in Maine on Election Day, and that's why they had a low turnout." To get federal dispensation, these places would have only to show that they have not been guilty of discrimination.

The machinery for that purpose lies in a provision for an appeal to a three-judge U.S. District Court in the District of Columbia. If the court found no evidence of voting discrimination, federal control over voting in the state would be canceled. But Katzenbach & Co. want to take no chances on missing their primary targets. They wrote in a clause saying that any state found by a federal court to have practiced voting discrimination--at any time over the past ten years--cannot be exempted through appeal; the state automatically remains under the Attorney General's jurisdiction.

Since Mississippi, Alabama and Louisiana have all been slapped with discriminatory voting judgments in recent months, each state would face ten years of federal voting controls. Georgia, slapped with a similar judgment in 1960, could not wriggle out for another five years. South Carolina and Virginia could be exempted through appeal, but the Justice Department would almost certainly put up an extremely tough case against them.

Co-Sponsors. All too aware of past attempts to thwart Negro voting rights, the writers of the bill have added a clause that would hog-tie evasive Southern legislatures. Once a state comes under federal vote controls, all its voting laws would be frozen as of last Nov. 1. No new regulations could be put into effect unless the District of Columbia federal court--a notably pro-civil rights body--approved them first. Moreover, even the qualifications on which a federal registrar would judge voter applicants would be approved by the Civil Service Commission and the Attorney General, although Congress may want to provide some general guidelines on such matters as literacy of applicants, age, mental competence, residence and history of felony convictions.

As the bill stands now, it appears to answer the needs of the moment and ought to pass both houses handily. For once, a Senate civil rights filibuster seems unlikely. The proposal was introduced on the Senate floor last week by 64 co-sponsors--44 Democrats and 20 Republicans. To make certain that it does not get stuck in Mississippi Senator James Eastland's Judiciary Committee, the Senate voted 67 to 13 to instruct Segregationist Eastland to return the bill to the floor no later than April 9. The House hopes to vote by mid-April, and will probably produce no more than 100 votes against it.

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