Senator RANDOLPH. These younger States are more vibrant, in a degree; I think they are pioneering in this field of thought and in the expression of responsibility of conviction.

Senator KEFAUVER. Of course, we voted in the Senate on this proposition back about 10 years ago. I have forgotten the vote, but it failed to obtain a two-thirds majority. I don't think that is conclusive now because I don't know that the Senators are any more wise or any more thoughtful about extending the rights of people, but the average age of the Senate is quite younger now than it was when we voted on this subject, and that might make a difference.

Senator RANDOLPH. And the Senate is more liberal now because of that aspect of its membership. Do you not believe that is a fact, Mr. Chairman?

Senator KEFAUVER. Yes; I think that is true. I think the times are changing quite rapidly, too.

Senator RANDOLPH. I know we used to think, and this is not an attempt to draw comparison between the House and the Senate the people thought generally the House was the more liberal and the Senate the more conservative body of our legislative process, but I think most observers and students of government would say today that the Senate is more liberal and the House is more conservative. In other words, there has been this transposition.

Senator KEFAUVER. Anyway, there has been a great change in the world which has been reflected in the Senate in the last few years. Senator RANDOLPH. Could I ask a question?

Senator KEFAUVER. Yes, indeed.

Senator RANDOLPH. I know your positive feeling on the subcommittee, your long espousal of this cause. How would you feel this subcommittee might determine this problem?

Senator KEFAUVER. Well, I am always reluctant about guessing what any committee might do, but Senator Keating has a resolution and Senator Dirksen has a resolution, and of course, I have one, all similar to yours.

Senator RANDOLPH. Yes, sir.

Senator KEFAUVER. So that is three on the subcommittee, and, as I look around, I see five names.

Senator RANDOLPH. Yes.

Senator KEFAUVER. So I should think that a majority of the subcommittee might be favorable-would be favorable.

Senator RANDOLPH. Relying on that look at your subcommittee, I hope the subcommittee will act promptly and report such a resolution to the parent committee.

Senator KEFAUVER. Thank you very much, Senator Randolph.

The subcommittee is honored to have with us this morning Senator Joseph Clark of Pennsylvania, for whom the chairman and, I am sure, all members of the committee, have great respect and appreciation of his work in connection with extending the right of participation in our democratic process to people who are qualified, and he is here this morning to speak in support of his resolution, Senate Joint Resolution 81, which he has filed on behalf of himself; the Senator from Michigan, Mr. Hart; the Senator from New Jersey, Mr. Williams; from Missouri, Mr. Long; from Minnesota, Mr. Humphrey; from Alaska, Mr. Gruening; and from Missouri, Mr. Symington. The resolution has been made part of the record.

STATEMENT OF HON. JOSEPH S. CLARK, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

Senator CLARK. Thank you very much, Mr. Chairman, for those kind words.

I have a short statement here, accompanied by two memorandums on the subject of the history of anti-poll-tax legislation in Congress and preferential presidential primaries prepared for me by the legislative reference service of the Library of Congress.

I would ask your permission to have my statement and the memorandums inserted in the record.

Senator KEFAUVER. Senator Clark's statement will be inserted at this point in the record, and the memorandums will be inserted following Senator Clark's entire statement.

(The statement submitted by Senator Clark follows:)

Mr. Chairman, I support passage of a constitutional amendment to eliminate poll tax payment as a requirement for voting in Federal elections. This curb on the most fundamental of all democratic rights has been permitted to survive too long.

Last September 1, President, then Senator, Kennedy asked Congressman Celler of New York and myself to prepare legislative proposals carrying out the civil rights pledges in the 1960 Democratic Party platform for introduction in the 87th Congress.

One of those pledges, as you well know, is as follows:

"We will support whatever action is necessary to eliminate *** the payment of poll taxes as (a) requirement * * * for voting."

In carrying out this portion of our assignment, Congressman Celler and I reviewed the long history of efforts to repeal the poll tax requirement in Congress in recent years. I asked the Legislative Reference Service to chronicle this history for me, which was done in the attached memo.

It was our view that there was sufficient doubt about the authority of Congress to eliminate this requirement by legislation to make it appear advisable to recommend adoption of a constitutional amendment to achieve this end. Accordingly we introduced identical constitutional amendments in the House and the Senate on May 8, 1961 (S.J. Res. 81; H.J. Res. 404).

As you will readily see from an examination of the resolution I have submitted, it is modeled, with one exception, word for word on the Holland amendment which was approved by the Senate by a 72-16 vote on February 2, 1960. The exception attempts to cover the situation in which States permit voters in presidential primaries to vote directly for the candidates for President and Vice President, not for a slate of electors pledged to such candidates.

I have not examined personally the laws of the five poll tax States (Alabama, Arkansas, Mississippi, Texas, and Virginia), but another memorandum I have received from the Library of Congress indicates that none of these States presently permits primary votes directly for presidential candidates. It would seem a pity to permit avoidance of a constitutional amendment by mere passage of a State law setting up such a direct primary system, however, and I urge the committee to cover this contingency in the poll tax resolution it recommends to the full committee and to the Senate.

Senator CLARK. Mr. Chairman, there is only one difference in the wording of Senate Joint Resolution 81 and Senate Joint Resolution 58, which has been sponsored and cosponsored by a very much larger number of Senators than the one which I have sponsored. Such change appears in lines 3 and 4 on page 2 of Senate Joint Resolution 81, where the words "for President or Vice President" are inserted in my resolution, but do not appear in Senate Joint Resolution 58.

The reason for the additional language is because if we were attempting in Senate Joint Resolution 81 to cover a situation in which States might permit voters in presidential primaries to vote directly

for the candidates for President and Vice President and not just for a slate of electors pledged to such candidates.

It so happens that none of the five States which presently have poll taxes are in that category, but they might pass laws to permit direct votes for primary candidates at any time, and if they did, in my opinion, the wording of Senate Joint Resolution 58 would not apply and the amendment would be meaningless in that particular State.

I suggest, therefore, it would be a wise precaution to insert these words in the resolution, which I have no doubt will be reported to the full committee in due course by your subcommittee.

That, I think, Mr. Chairman, is all that I care to say. My statement makes clear why I did put this resolution in and my interest in it. Senator KEFAUVER. Let's see if I understand clearly what your reasoning is.

In Senate Joint Resolution 58 by Senator Holland and others, the language is "in any primary or other election for electors for President or Vice President, or for Senator or Representative in Congress. In your resolution, Senate Joint Resolution 81, the language is "in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress.' Are you saying in some places they do not vote

for electors?

Senator CLARK. That is right. My State is one.

In the general election, we vote for electors. But I am referring to the States where, in the primaries, the voter marks his ballot for the candidate, not for the elector.

Senator KEFAUVER. Yes; that is true in quite a number of States. Senator CLARK. Well, I stated it this way in my statement:

The exception attempts to cover the situation in which States permit voters in presidential primaries to vote directly for the candidates for President and Vice President, not for a slate of electors pledged to such candidates.

Now, you will recall that when you ran in the Pennsylvania primary, we voted for you, we didn't vote for any slate of electors pledged

to you.

Senator KEFAUVER. That is true, and that is true in quite a number of States.

Senator CLARK. Hence this precaution.

It is particularly important in Southern States where the primary is equivalent to the general election.

Senator KEFAUVER. Well now, does Senator Holland's resolution really mean that in a primary you would be voting for electors? Senator CLARK. I think it is susceptible of that interpretation; don't you?

Let's read that clause of Senate Joint Resolution 58 together: to vote in any primary or other election for electors for President or Vice President.

Senator KEFAUVER. Mr. Kirby, you are our counsel, what do you think?

Mr. KIRBY. I have discussed this question with Senator Holland's staff, and it is his interpretation that his amendment would apply to a primary only if electors themselves were the candidates in the primary, which has been true in Florida, apparently. But in a State where delegates to the national convention were on the ballot

in the primary, his amendment would not apply; or where the names of the candidates were on the ballot in the primary, his amendment would not apply.

Senator CLARK. I think it should apply.

Now, it is true that none of the five States which presently have poll taxes permit direct votes for presidential primary candidates, but they could change the law tomorrow, and another State which does not have a poll tax could adopt one and have a direct presidential primary, in which case I submit that Senator Holland's joint resolution would not cover that situation, and I submit that it should.

Senator KEFAUVER. Well, Senator Clark, when you are running in a primary in a State like Wisconsin, you don't vote for the candidates. You vote for the delegates, and they are not electors.

Senator CLARK. I am just pointing out that there are some States where that is not true, and there could be more States tomorrow.

Senator KEFAUVER. You mean you think under Senator Holland's resolution that it would not apply to primaries unless in that particular State they voted for electors who, in turn, would vote in the electoral college?

It

Senator CLARK. Yes. In other words, here is a loophole that is easy to close. I assume that it was an inadvertent loophole. could be closed by an amendment adopted by the subcommittee. Senator KEFAUVER. Well, we certainly are glad to have your analysis and explanation of this difference, Senator.

Thank you very much for coming and being with us.
Senator CLARK. Thank you sir.

(The memorandums submitted by Senator Clark follow:)

To: Hon. Joseph S. Clark.

From: American Law Division.
Subject: Anti-poll-tax legislation.

NOVEMBER 17, 1960.

Reference is made to your recent inquiry concerning the above subject. We have considered the history of this legislation by Congress since the 77th Congress commencing in 1941.

Attached, is a copy of Senate Joint Resolution 39, 86th Congress, the most recent congressional action on the proposal, together with the House Report 1698 which resulted in deletion of the anti-poll-tax provisions of that resolution. Attached also are copies of bills introduced in the 86th Congress which are illustrative of the various forms anti-poll-tax bills have taken generally over the years.

The Senate report to Senate Joint Resolution 39, 86th Congress, does not consider the anti-poll-tax amendment, since that matter was resultant from a floor amendment.

The subject of anti-poll-tax legislation has been continually before the U.S. Congress at least since the 77th Congress commencing in 1941. With the exceptions of the 82d-85th Congresses, a bill was passed in each Congress by the House of Representatives. The matter was passed by the Senate during the 86th Congress as a proposed constitutional amendment. Each of these bills followed a slightly different course toward passage. There were also differences in language. The history of each of these bills is discussed individually in an attachment.

The anti-poll-tax bills which have been introduced (an average of 15-odd in each Congress) may be classified in 4 general types:

(1) Prohibition of poll taxes as a prerequisite to voting in national elections. (2) Prohibition of poll taxes together with a provision for application for injunctive relief available to either the United States or to an aggrieved party to protect against violations or threatened violations.

(3) Various forms of (1) and (2) above included as a separate title in omnibus civil rights bills.

(4) Proposed constitutional amendments to abolish poll taxes with respect to primary and general elections for national offices.

A copy of each of these types of bills introduced during the 86th Congress is attached.

The language differences among the various bills introduced stem for the most part from enlargements or refinements of the details of the legislation. Seven of these differences which appear of some significance, and which might influence the language to be used in a proposed bill follow.

(1) Inclusion of primary elections and registration of voters with general elections under the prohibition. Such language would prevent a mere substitu tion of poll taxes from thwarting the intent of the act (Congressional Record 95, p. 10224 et seq., July 26, 1949).

(2) Application of the prohibition to "any person" in addition to any "State, municipality, or other political subdivision," thus reducing the possibility of avoidance of the intent of the law by broadening the prohibition.

(3) Prohibition of a tax levied "in consequence" of voting or registering as well as prohibition of a poll tax as a "prerequisite" to voting. This refinement has been included in some of the more recent bills; S. 2000, 86th Congress, as one instance.

(4) Definition of "poll tax." On at least one occasion (H.R. 3199, 81st Cong.) a committee amendment was added to the bill, and was included on House passage, the committee and the House finding that—

"The need for this section is evident from numerous refinements in the use of the poll tax as a clog on the ballot. In some States tax receipts must be presented for more than one successive year, or be dated anterior to certain months long prior to the election" (H. Rept. 912, 81st Cong.).

That amendment reads as follows:

"For purposes of this act, the payment, levying or requirement of a poll tax shall be construed to include any charge of any kind upon the right to vote or to register for voting, and any form or evidence of liability to a poll tax or to any other charge upon the right to vote or to register for voting" (H. Rept. 912, 81st Cong.).

(5) Provision for application by either the United States or an aggrieved person for injunctive relief against a violation or threat of violation of the provision of the act. This provision has been included in many of the more recent proposals though it is absent from the earlier ones (77th-81st Congresses). It appears to be used in conjunction with a prohibition against collection of a poll tax, the combination acting as a substitute for a declaration of illegality of unconstitutionality of a State poll tax statute.

(6) Some anti-poll-tax bills (S.2359, 86th Cong., for example) have sought to extend the legislative prohibition to other requirements in addition to the poll tax. These often include "any property tax, property ownership qualification, or literacy test or intelligence test."

(7) Two provisions have at various times been included in anti-poll-tax proposals which seek to anticipate constitutional objections to such legislation. One (see H.R. 711, 86th Cong.) recites that poll taxes are deemed not to be a "qualification" of voters and, therefore, not determinable by the States (U.S. Constitution art. I, sec. 2), but are deemed to be an interference with the "manner of holding elections," and therefore regulatable by the Congress (U.S. Constitution art. I, sec. 4).

The other provision, included in H.R. 3199, 81st Congress, declared the poll tax to be "[and] an impairment of the republican form of government" which is required by article IV, sec. 4, U.S. Constitution, to be guaranteed to the States by the United States. H. Rept. 912, 81st Congress, says of this provision in H.R. 3199:

"This is a statement of one of the Constitutional bases of authority, which appears in some of the other bills introduced in this House. It incorporates, in the bill itself, what has been said about it in previous reports of Congressional Committees."

In addition to the details of the language of anti-poll-tax legislation, the larger question of the constitutionality of statutory treatment in lieu of constitutional amendment has caused the greatest difficulty in the floor debates throughout its history.

Two Supreme Court decisions are often cited by the proponents and the opponents of the statute-amendment controversy. Ex parte Yarborough, 110 U.S. 651 (1884), is relied upon by adherents to statutory treatment.