CARDONA v. POWER
Argument of Paul O'dwyer
Chief Justice Earl Warren: Number 673, Martha Cardona, Appellant versus James M. Power et al.
Gentlemen, we will proceed till -- until three o'clock at least.
Mr. Paul O'dwyer: Chief Justice, members of the Court.
Chief Justice Earl Warren: Mr. Dwyer -- O'Dwyer.
Mr. Paul O'dwyer: I think it might be well at the outset to give some facts surrounding the history of literacy test in the 19 states where they are in existence.
We've had the problem previously.
One of the counsel who just addressed you stated and gave the outline and the background of the enactments in both Massachusetts and Connecticut and I may say that the history of literate -- of literacy test indicate that in practically every state where they exist, they were -- they were determining a right to exclude people from voting rather than as qualifications for voting.
I must say that I was somewhat surprised to hear the literacy tests that the statute in New York prescribed as benign by comparison with the others.
I may say that it was enacted in 1922 at a time when there was absolutely no necessity to enact a literacy test with respect to native born New Yorkers.
They'd had a school system at that time for almost a century.
Many attempts had been made previously in the State of New York to enact literacy test.
In the convention of 1848, they almost got one through but there were too many people that were talking Dutch in the State at that time so consequently, they weren't able to put it across.
1915, they tried it in 1917, it was successful.
The lady who appeared here talked about the fact that it was meant for the purpose of attempting to saying the people of New York who are not conversing with English in the industrial plants and that it had for its purpose assisting in many other ways.
I may say to that the history of the hearings more or less belies that.
I am turning to the brief of the American-Jewish Congress at page 27 to read some of the things were said at that time.
Mr. -- one of the arguments presented on behalf of it is as follows.
More precious even than forms of Government or the mental qualities of our race by those stand on impaired all are safe.
They're exposed to a single danger and that is by constantly changing our voting citizenship through the wholesale but valuable and necessary infusion of Southern and Eastern European races.
The danger has begun, we should check it.
That was on the one side proposing the change.
On the other was Senator Wagner, obviously, that proposal is directed against the foreign born American.
Remembering that the great mass of foreigners that come annually to our shores are simulated into and become part and parcel of the American people because they strive and hope and succeed in acquiring the right to vote.
You cannot recognize in the amendment, a clandestine effort to prevent this assimilation of alien blood without citizenship and to segregate and exclude the foreigner from the rights, the privileges, and the opportunities which we have always held out to all men.
I may say that at that very --
Justice Potter Stewart: I should think the effect whatever the -- whatever the rhetoric was and I've seen in your brief, there was some rhetoric along racial lines and the lines of bigotry but I see the effect would be an effect of assimilation into American society rather than the dissimilation?
Mr. Paul O'dwyer: Whatever -- whatever the end result was, I am speaking here to the point of the polluted origin of the legislation in the first instance.
It was at that time that five elected assemblymen were prevented from being seated in the New York State Legislature and a hearing of the type which has never before happen in the State of New York or anywhere else followed it.
It was in the middle of this type of hysteria that this enactment was passed.
It was condemned by Governor Smith.
It was condemned by Senator Wagner.
It was condemned by the progress of that date but it was enacted in the state of hysteria.
In connection with the --
Justice Potter Stewart: Was the legislation signed by the Governor?
Mr. Paul O'dwyer: It was signed by the Governor.
It was after it had this period of hysteria had prevailed.
I may say that we come to the questions which are raised here with regard to whether or not the 4 (e) and the New York State statute are intertwined and it would seem to me that they are.
It would seem that the justification for the passage of 4 (e) has been because of the discriminatory character of the legis -- New York State legislation.
It would seem that one of the things which I think has been overlooked is that in somewhere about 1946 as a result of a committee from Columbia University, a travel to Puerto Rico to examine the educational facilities there and the results upon the children of Puerto Rican schools and found that our attempt to Englishized had totally failed and it was as a result of that was a new method was developed whereby this appellee and other children born in Puerto Rico have no choice but to read and write, and learn American history and civics through the medium of Spanish.
So that for all intents and purposes, we have -- we are a country of two languages.
We have fostered one throughout this island.
We have developed it there.
Of the 19 states which have a literacy test, there are some like the State of Louisiana which permitted at least in the language of one's forebears in the mother tongue as well as in English.
Justice Hugo L. Black: May I ask you?
Mr. Paul O'dwyer: Yes, sir.
Justice Hugo L. Black: You said children?
Is it the plaintiff here -- petitioner a child?
Mr. Paul O'dwyer: No.
The petitioner was born, raised, and educated and voted in Puerto Rico before coming to New York --
Justice Hugo L. Black: When did she come to New York?
Mr. Paul O'dwyer: She came about approximately 1950.
It was the -- at that time, the committee from Columbia --
Justice Hugo L. Black: Has she not learned any English since that time?
Mr. Paul O'dwyer: She has not learned any English since that time.
She has not learned sufficient to be able to engage in conversation and I may say parenthetically there are many people who are not capable of doing it even though they're be highly literate in another language.
They have blocks with respect to it and it is not on common in a place like New York City where we have three daily newspapers dealing with all problems of history, civics, and politics, where we have radio stations and television stations dealing in the Spanish language that they continue to do that.
But one other things which I'm afraid that those of us who are constantly confused, the Puerto Rican with every other foreigner who comes to the shore.
This man is came as -- became a citizen by virtue of the Treaty of Paris in 1898, the Jones Act in 1917, and by further enactments of the Congress to the United States which gave a sanction to the Constitution of Puerto Rico.
And then in 1947 when the United States Government, went before the United Nations and/or to establish our right, not to make various reports from time to time under the provisions of the colonial powers, we obtained and received permission from the United Nations to deal with this into the -- provide dealing with that in that fashion.
Justice William J. Brennan: May I ask Mr. O'Dwyer?
Mr. Paul O'dwyer: Yes, sir.
Justice William J. Brennan: I gather if the Government wins the previous case, your case is moot, isn't it?
Mr. Paul O'dwyer: No, it is not sir.
It is not moot for the following reasons.
I think if the whole -- I do -- I contend that even though that Congress of the United States may have a right to impose literary requirements, it may not impose literary requirements if the purpose of that is to deprive people from voting rather than to create a climate in which they may vote intelligently.
Justice William J. Brennan: Well, let me see.
Am I wrong if the Government prevails that 4 (e) is constitutional?
Mr. Paul O'dwyer: That only --
Justice William J. Brennan: Then under the Supremacy Clause, will not that supersede the New York statute?
Mr. Paul O'dwyer: No.
No, it will still leave open the requirement with respect to a certificate from a sixth grade school -- sixth grade in any school under the American flag.
Justice Byron R. White: That doesn't include -- that doesn't include the Puerto Rican who is involved here, isn't it?
Mr. Paul O'dwyer: It will not include Puerto Rican --
Justice William J. Brennan: If she's had a certificate?
Mr. Paul O'dwyer: Yes.
It would include that Puerto Rican who is involved here, but I respectfully submit --
Justice Byron R. White: Her case is solved then and if -- if the Government wins the other case, this party's case is solved?
Mr. Paul O'dwyer: This, it's true.
Under the -- that's true.
This Martha Cardona but the next one coming before this Court would not be solved.
Justice Byron R. White: That -- that case?
Mr. Paul O'dwyer: That -- however, I may say that I think -- I think we should to attempt to solve the Cardona case first and then proceed from that to deal with the 4 (e) case because on the contrary, I think if the -- in order to solve the -- to the case arising under Provision 4 (e), this Court must come to the conclusion that the New York State law is discriminatory.
So, it would seem to me that if you have solved that problem in the first instance, you may more easily solve this -- the one which was previously argued.
Justice William J. Brennan: Well actually, would this be right Mr. O'Dwyer if you're right and if the New York statute independently of 4 (e) is unconstitutional, and is stricken down in your case so we never have to reach the 4 (e) question.
Mr. Paul O'dwyer: You will never -- precisely Judge Brennan.
That's precisely the situation.
If you solve the problem arising here and you come to the conclusion that the New York statute is discriminatory because of the Grandfather Clauses, the unusual exceptions with respect to it and which have no relationship with the quality of persons who are preparing to vote, then by that token that is the end of that problem not only with respect to -- it is certainly is a process in the State of New York is concern and we -- you never need to arrive at the other.
I don't know how this effect --
Justice Byron R. White: Maybe is solve when you decide what constitutional questions to avoid solving another?
Mr. Paul O'dwyer: Well, it will dispose of the total because it will have done far deeper.
It would seem to me and I'm not going to -- I don't want to prejudice their case presented here ahead of me, but it would seem to me from listening to the argument that the Court must come to the conclusion that there was a basic reason for the enactment of 4 (e), that there was a reason based upon a violation of the Fourteenth Amendment.
It would seem to me that if we present that evidence in the first instance as we have here, that solves the problem -- the total problem and that would be known -- well, perhaps I better not get off into arguing the other fellow's case, but as seemingly in any event it would -- it would be a requirement that you come to that conclusion.
There is --
Justice Byron R. White: Well, of course you could take both.
What you're saying is that Congress said so and furthermore Congress is right?
Mr. Paul O'dwyer: Yes, it would seem that way and I may say that it is not so that we are confined purely to the -- to -- we confine totally and completely to the pronouncements on the day when this was argued which incidentally was three days after the arguments and all of the United States Court of Appeals in the Cardona case and all of the people who did the arguing, both in the House and in the Senate had before them the various information which was available in the case at that time and based their arguments on the Cardona case, but there was -- there were various hearings before the congressional committees dealing with voting practices in the various states previously and among them was the inequities in connection with the establishment of these laws.
It would --
Justice William J. Brennan: Specifically of the New York statute Mr. O'Dwyer?
Mr. Paul O'dwyer: The hearings which took place --
Justice William J. Brennan: Yes, fairly.
Mr. Paul O'dwyer: – Not precisely at that time Judge Brennan but took place about two years before that, had also call into question these very enactments not merely here, but in other places as well.
Now, we've had -- we'd talked about here of the State of New Mexico.
I may say in the early stages of it, we are -- we're accustomed to dealing with Spanish, apparently it has come up as a problem somewhat before at the constitutional convention before that state was admitted into statehood.
The presiding officer did not know how to speak English and talking again with respect to the possibility that New York may have to supply certain information in Spanish to the voters so that they can properly understand the amendments and resolutions which appear in the voting machine, I may say and I have made available to the court, literature in which the -- the State of New York went out of its way to give all this information in to Spanish to the perspective taxpayer.
And the -- if the -- if they can go to the trouble of providing the taxpayer with instructions in Spanish as to how to fill out a complicated form, it's not too much to ask that perhaps they give some of the instructions beforehand.
I may stay however parenthetically, that very few people read the amendments or resolutions in the voting machine.
If they're did, we couldn't possibly end our voting in one day.
Everybody that votes on these which are precious few and make themselves acquainted with the provisions long beforehand and are in position to deal intelligently with it.
Justice Abe Fortas: Mr. O'Dwyer --
Mr. Paul O'dwyer: The pronouncement the -- a statement has been made on the record here that from -- on the basis of the information which is imparted to the Spanish-speaking community in New York are through the newspapers, through the magazines, and through the radio that if they are as intelligent, the Spanish-speaking voter is just as in -- as just enlightened on the issues as any of the other fellow citizens who are not Spanish-speaking.
And it presupposes too of course during the course of the argument that everybody from all over the State of New York is fully conversing as they go into poll with respect to each and every problem presented and of course have -- where situation has nothing to do with language.
Truth to say we know that this is not quite so.
This is an area in which these people are as -- as has been stated here a few moments ago are inducted into the United States Army are assigned to a regimen where Spanish is spoken who go to school and have no choice with respect to the language that they are taught.
This is done not merely through local taxes, but it is done through federal grants and aid under the sanction and under the approval of the United States and certainly, to have under these circumstances where they come to the -- to the mainland, have the State of New York through its invidious statutes depriving of the right to vote because of the fact that they were brought up under circumstances over which they had no control certainly requires that this Court take action and strike it down.
Justice Abe Fortas: Mr. O'Dwyer.
Chief Justice Earl Warren: Excuse me Mr. O'Dwyer.
Mr. Paul O'dwyer: Yes, sir.
Justice Abe Fortas: I dislike interrupting the order of your argument but I like to get back to this question of whether your case is moot, if we should sustain the 4 (e) in the previous case.
Now in order to rule -- to make a ruling that will give relief to the plaintiff in which whom you represent, we would have to go farther wouldn't we than merely to say that the in fact that New York has to accept sixth grade education in the Spanish language, but have to go beyond that and say that and hold involved that New York has to give an examination or literacy test in Spanish as well as in English where the --
Mr. Paul O'dwyer: Yes --
Justice Abe Fortas: -- person concern speaks of a Spanish.
The reason for that being your complaint has not state that you're seeking relief on behalf of somebody who has a sixth grade education in the Puerto Rican schools.
Mr. Paul O'dwyer: That's right sir.
Justice Abe Fortas: So we would have to go further --
Mr. Paul O'dwyer: Indeed Your Honor.
Justice Abe Fortas: -- than we have to go in the previous case under 4 (e) which involves -- which raises only the question of the sixth grade education.
Mr. Paul O'dwyer: That is correct.
You're not on -- I have presented here what I regard arguments in the brief and also presented on the brief of the amicus curiae to the effect that this -- the grandfather provisions of the enactment itself are sufficient to permit this Court to strike it down if for no other reason dealing not merely with Spanish, not with any other language but just on that basis alone.
But in addition --
Justice William J. Brennan: That is if -- those are impermissible -- it's an impermissible classification in light of the exceptions for veterans and grandfather and so forth.
Mr. Paul O'dwyer: Correct.
It should --
Justice Byron R. White: What if they eliminated the exemptions?
Justice William J. Brennan: Yes.
Mr. Paul O'dwyer: If -- I'm not quite sure I follow you Judge --
Justice Byron R. White: Well, what if they eliminated those aspects of the law which you say deny the protection?
Mr. Paul O'dwyer: Well, this is on the more -- in the broader aspect.
Now, if they eliminated that I still believe that under the circumstances here in view of the fact that a whole class of American citizens who do not knock at the door from the immigrant ship who are here by virtue of their own inherent right as citizen for three and four generations, that New York State may not make an enactment which prevents them from exercising a rather sacred right and so, even if you eliminate --
Justice Byron R. White: Well if that aspect to your argument would be solved by the deciding the other case in favor of the Government?
Mr. Paul O'dwyer: It would be solved insofar as this particular person is concerned is true.
Justice Byron R. White: Or any other person --
Mr. Paul O'dwyer: No --
Justice Byron R. White: -- insofar as your -- that last page to your argument?
Mr. Paul O'dwyer: That only a person who can pass the sixth grade education in Spanish.
I am talking -- and present a certificate --
Justice Byron R. White: You're saying -- you're suggesting that New York may not impose literacy test at all.
Mr. Paul O'dwyer: I may --
Justice Byron R. White: If you -- if it requires at least a sixth grade education?
Mr. Paul O'dwyer: I would say that New York State insofar as a Spanish-speaking Puerto Rican citizen --
Justice Byron R. White: Or an English-speaking person who has passed the sixth-grade English exam.
Mr. Paul O'dwyer: I would say that if -- that would fall under the grandfather provisions enacted in 1922, that the whole thing collapses by virtue of that.
Justice Potter Stewart: But an American born citizen who speaks only Chinese or Yiddish or French and I suppose there are such?
Mr. Paul O'dwyer: I'm not able to answer that --
Justice Potter Stewart: (Voice Overlap) -- who's letter for those --
Mr. Paul O'dwyer: -- it's an interesting question raise here somebody that went to a foreign country when they were a child and came back.
I don't know whether a democracy we can take care of each in individual situation and I'm quite certain as our laws are developed, we do -- do an injustice --
Justice Potter Stewart: We're not here to take care of the situations but to decide constitutional issues and I was wondering if your -- the argument that you make is solely on behalf of native-born American born in Puerto Rico and if so, if that's a very good argument under the Equal Protection Clause because you're saying that the -- only the special group should be protected and that is -- and it was denial of equal protection for New York to different franchise only the special group.
Mr. Paul O'dwyer: It would seem --
Justice Potter Stewart: Now, if the denial of equal protection to have a literacy test in English, isn't it just as much a denial as against the native-born American citizen who speaks only French and is very literate in that language --
Mr. Paul O'dwyer: Yes, sir.
Justice Potter Stewart: -- or only Chinese or only Swedish or only Portuguese or only Yiddish and I suppose that the --
Mr. Paul O'dwyer: There are some --
Justice Potter Stewart: -- those such could be found?
Mr. Paul O'dwyer: -- there are many -- I assumed.
I -- I'm not wise enough to be able to follow the argument with that conclusion, but it would seem to me that the logic would suggest that it would be unconstitutional insofar as they're concern as well.
Justice Potter Stewart: But any literacy test in English --
Mr. Paul O'dwyer: Yes.
Yes, indeed to any --
Justice Potter Stewart: -- is the denial of equal protection to American citizens who are literate but not literate in English, is that it?
Mr. Paul O'dwyer: Yes, sir and when we have -- when we come to the whole -- we had then -- we have to survey -- in the light of this argument, we have to survey whether or not the literacy test really has done what it is set out to do or whether or not as historically is the fact that it was a provision to prevent people from voting every state where it existed and that I may say that apparently 31 states have done very well without it.
Many of the members of this Court have come from states where they don't have a literacy test and it would be invidious indeed to suggest that in these states where there is no literacy test the type of legislation, the type of enactments that come from it to these circumstances are in theory to those in areas where the literacy test does in fact prevail.
Justice Hugo L. Black: May I ask you.
Suppose the situation, legal situation here were reversed as between the state and the nation, suppose that New York had authorized these particular people to vote under this conditions, Congress came along and says well they couldn't, which would be supreme?
Mr. Paul O'dwyer: I would say that any enactment by Congress under those circumstances would be invalid.
Justice Hugo L. Black: What would -- on what credentials --
Mr. Paul O'dwyer: If the State of New York which will enact -- to make some enactment which would grant literacy -- which would grant voting rights to a citizen and Congress were to take that right away by its enactment, I think that enactment should be -- should be --
Justice Hugo L. Black: Well, if Congress has the supreme power to pass legislation in that field, why could it not do so even if the situation were reversed?
Mr. Paul O'dwyer: Because Judge Black --
Justice Hugo L. Black: If the power is in Congress to pick the qualification to voters in this respect.
Mr. Paul O'dwyer: Because Judge Black, I would regard the grabble of the complaint to be taking rights away and that's what New York State would not have done under the proposal which you have suggested.
Whereas on the contrary, Congress would be taking away something that a state had enacted and --
Justice Hugo L. Black: You're saying -- are you saying -- I'm just asking --
Mr. Paul O'dwyer: Yes sir.
Justice Hugo L. Black: -- because they thought that it could --
Mr. Paul O'dwyer: Right.
Justice Hugo L. Black: -- to this argument that's going on.
Mr. Paul O'dwyer: Yes.
I would say that if --
Justice Hugo L. Black: Are you saying that the Congress that they have a constitutional right to vote without qualification with reference to literature?
Mr. Paul O'dwyer: I would say that --
Justice Hugo L. Black: Or knowledge of the English language?
Mr. Paul O'dwyer: I would say, that unless there is -- I do not contend --
Justice Hugo L. Black: Federal Constitution [Inaudible]
Mr. Paul O'dwyer: I do not contend here that the states do not have a right to setup reasonable requirements with respect to voting.
I do say that every place they have done it, it has been for the purpose of preventing people from voting and therefore this Court should look with more scrutiny into each one -- particularly, one such as we are here -- we have here under consideration.
Justice Hugo L. Black: Unless it is undoubtedly as to keep them from voting when you say you can't vote it -- you up over unless you are 21 or reduce it to 18 and nearly all these things are to prevent people from voting unless it meets some qualification.
Mr. Paul O'dwyer: I would say that Congress at that point if the State of New York extend its power to those to -- to vote and that Congress took that power away that such an Act would be unconstitutional because they would have been taking away a right from the citizen that it had acquired under the State.
Justice Hugo L. Black: Under the state law?
Mr. Paul O'dwyer: Under the state --
Justice Hugo L. Black: State supreme in that field?
Mr. Paul O'dwyer: I would say that the State is supreme provided that it is not done for the purpose and it does not interfere with -- as it does here, rights which had been acquired by the Treaty of Paris, by enactments of Congress, by proposal submitted to the United Nations which makes this a unique and different situation and I would say that Congress -- that the State would be supreme with the development of its voting rights provided however, that it did not interfere with the basic constitutional rights of any citizens such as in -- Judge Black, you asked whether or not there was any proposal here -- there was any suggestion that this was violative of the Fifteenth Amendment and we make -- we claim that it is, not under the colored provisions but under the race provision.
It is our suggestion here that Puerto Ricans in the sense are a race and a race that are here in the sense that they have a language.
They have a common tradition.
They have a common purpose for over 300 years in their island home and it is our suggestion here that when any law, even though it may not have interfered with them at the time of its enactment, if later, it did actually interfere with their rights under the Fifteenth Amendment, that it should be stricken down.
Justice Hugo L. Black: Now, let's get back to the questions that Justice Stewart asked a while ago.
You would say they can't do that with reference to any people from many countries?
Mr. Paul O'dwyer: Any country -- American citizens in any country, I would -- well, I'm not prepared to argue that.
It would seem logically to me that if American citizen for some reason or another found himself in another country and was brought up and had to learn his language -- some other language that under these circumstances I suppose it would be logical to follow through and suggest that the law would be unconstitutional as to such person.
Chief Justice Earl Warren: Mr. Hirshowitz.
Argument of Samuel A. Hirshowitz
Mr. Samuel A. Hirshowitz: Mr. Chief Justice, may it please the Court.
I want to make it clear that New York has done everything within its power to make sure that every citizens to give an opportunity to vote and the very exceptions that had been pointed out by the attorney for the appellant were ethics made by New York to ease the literacy requirement so that more people would be given a chance to vote.
When Congress passed the Civil Rights law of 1964 in which it had a provision that education in an American flag school where the language was principally English up to the sixth grade was a test for voting in federal elections.
New York State very promptly passed an amendment to the election law which provided that equally so in New York, persons educated in Puerto Rico in American flag schools where English was the principal language of instruction up to sixth grade would be eligible to register and vote in New York.
I cite that to show the interest of New York in the availability of citizens for voting.
Moreover, New York by amendment of absentee registration, the amendment of absentee voting, the availability of voting to members of the Armed Forces and veterans has made an intelligent effort to get all the citizens of New York State who made possibly be eligible become part of the -- of the electorate of the State.
And so for -- for instance, the Attorney General of Puerto Rico suggests that New York doesn't care what happens to its Puerto Rican population is a tremendous disservice because a great deal of money and effort is being put into a campaign and has been put into a campaign to see that persons, American citizens originally from Puerto Rico are given a -- every opportunity to vote and in the election of 1965, New York sent automobiles, trucks to the various areas where the Puerto Rican population was located in order to make it easier for these persons to come out and register, and as you've heard, actually their actually there only 8000 persons that took the opportunity under this 4 (e) to register for the 1965 election.
So far, there's been a great deal of discussion about the power of Congress to surround a certain group of the United States citizens with a protection which follows them wherever they may go and keeps them a separate and distinct class in any -- in any society in which they may live and I want to point out to you that the effect of the desired result sought by the appellant would be that there would be setup an enclave in the city such as New York where all the Puerto Ricans would read Puerto Rican newspapers, listen to Puerto Rican radio stations and television stations, read the literature in Puerto Rican and have no opportunity to integrate into society around them either in New York City or California whatever the case may be.
We have heard from the appellant in the Morgan case that Congress has done that by enacting Section 4 (e) of the Voting Rights Act of 1965 and at the same time, we have heard from appellant in this case that the Congress did it long ago by treaty, by statute, by the United Nations' charter, and by the Constitution of Puerto Rico.
We submit that there is no substantial basis to any of the contentions the appellant here.
We submit further that something very important has been lost sight of along the way.
We are not talking here about Puerto Rican citizens.
We're talking about New Yorkers.
The Fourteenth Amendment defines state and national citizenship, all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of United States and of the state wherein they reside.
The appellant here is entitled to be treated like any other citizen of New York.
New York cannot create a separate class of citizens based solely on the fact that citizenship was a crime in a place other than New York.
The very idea is repugnant to the basic ideas of our society and in violation of the Fourteenth Amendment which says that a state shall not, “Deny to any person within its jurisdiction the equal protection of the law.”
Appellant's position throws into question the power of the state to set voting qualifications of its citizens and to have those qualifications apply equally to all its citizens.
Yet, the Constitution and the decisions of this Court have left that power beyond question so long as the qualification set by the State bear a reasonable relation to the exercise of the franchise and are not used to discriminate.
This Court has held that literacy does indeed bear a reasonable relation to the exercise of the franchise.
This was held not only in the Lassiter case, but most recently in the Harper case, Mr. Justice Douglas referred to the same intelligent exercise with the franchise which is the basic foundation of literacy test in English.
Moreover, it cannot be denied that in times of New York and indeed of the Continental United States, literacy can realistically mean only English literacy.
New York has always contained the greatest diversity and language of any state and consequently, it's not pertinent for the appellant to suggest that the same problems may exist in some other state.
In New York, New York believes that one common language serves all the courtesies.
The policy of one language has served New York well as it has served United States well, since English was required and is required as a prerequisite to naturalization.
Even today, in New York, there are many persons whose primary language is not English and it is not Spanish but the policy of one common language makes for integration and makes a workable community.
English literacy is a reasonable qualification or exercise of the franchise in New York.
The ballot itself demonstrates this.
Each year, the ballot presents a long list of candidates and a wide range of questions.
It is a primary concern that the voter have the ability to confront the ballot independently and that he had no need to rely on any person or group to act as an intermediary in confronting the ballots.
It should be pointed out that the English literacy qualification in New York was initially proposed as an alternative to shorten the ballot and was -- the shortening the ballot and was not accepted by the voter.
There were some comments this morning by one of the appellants to the effect that -- in the newspapers -- in the Spanish newspapers, there was a printing of the ballot in Spanish and of the constitutional amendments.
Now as far as our information is, we followed the Puerto Rican press, this was not the case.
The Puerto Rican press is mainly concerned with discussion of life and events in Puerto Rico and another Spanish communities and little attention was given to general information.
Supposing the President of United States makes a television address, he makes the address in English.
The -- not only the content of address -- of the address but the manner in which it is understood by the voter is very important in order to have an appreciation of the sense of the speech by the President or possibly by a candidate of President.
The 1960 election turned on television with debates.
These debates are conducted in English.
This -- the voter whose knowledge would only be in Spanish would only get this permeated to him through the Spanish press and through the Spanish radio station or television.
To achieve an independent electorate, New York is interested only in an -- a minimal amount of English literacy.
No person is being required to abandon his reading of material in other languages or his use of another language as his primary medium of communication.
No one is being asked only to acquire enough English to enable him if he chooses to participate as an individual in the business of governing the state.
Now in our brief, we have inserted comments from respectable persons and groups which demonstrate that the New York literacy test which is conduct at -- not by any political officials but by the Board of Regents of the State of New York, the Education Department, the English literacy test is a model and you have a copy, a sample copy of the English literacy test attached as an appendix in our brief.
Chief Justice Earl Warren: Did they have the exemptions you have in that?
Mr. Samuel A. Hirshowitz: The exemptions?
Chief Justice Earl Warren: You have in your Act as being model, a model Act?
Mr. Samuel A. Hirshowitz: The exempt --
Chief Justice Earl Warren: You exempt from it -- not only veterans who are in a veterans' hospital, but you say by a reason of their being in a hospital, their parents and their spouses (Voice Overlap) and all of their children are thereby qualified to vote?
Mr. Samuel A. Hirshowitz: Let me clarify that Mr. Chief Justice.
Chief Justice Earl Warren: Well I wondered if the fact was in the model Act --
Mr. Samuel A. Hirshowitz: No, no, no.
I was just saying Your Honor that the examination, the test that is given by --
Chief Justice Earl Warren: What test?
Mr. Samuel A. Hirshowitz: -- is a model, is here --
Chief Justice Earl Warren: Yes.
Mr. Samuel A. Hirshowitz: -- as a model throughout the country.
Chief Justice Earl Warren: Yes.
Mr. Samuel A. Hirshowitz: Now, I will deal with the exemptions very quickly.
Chief Justice Earl Warren: Do it in your own time.
Mr. Samuel A. Hirshowitz: The exemptions are -- no, I will deal with him right now.
The exemptions are to -- men in the Armed Forces who get an honorable discharge, these men have had English before they've been inducted into the service, and consequently the State recognizes it by saying that they can vote without going through another literacy test.
Secondly, the veterans falling in a same category who happen to be in veterans hospitals in New York State, not in a county of their residence so that special arrangements must be made for absentee registration and voting for these persons.
Now as to the spouses; I don't know today and I don't know that my opponent knows today that a spouse or a child of a veteran has got a right to register merely because he or she is so joining in the veterans hospital with a sick veteran.
The statute, Section 115 which is incorporated in our brief does not make that clear and we have -- we know of no instance where a spouse of a veteran has registered without qualifying by a literacy test or making an affidavit that he or she is literate in the English language.
The forum --
Chief Justice Earl Warren: No, I don't know that either, but I was reading from page 10 of the appellant's brief and he says that under the New York law and he lists four subdivisions and in five, he says, spouses, parents, and children of veterans in veterans hospitals.
Mr. Samuel A. Hirshowitz: Yes, but the only thing that says Mr. Chief Justice is, it sets up a system for absentee registration where a spouse is living with a veteran at a veterans hospital somewhere say around Buffalo and they should register and vote say in Brooklyn.
Some efforts should be made not to disqualify that spouse or the child with a spouse from opportunity to vote.
And as I said, New York makes every effort to ensure that everybody is given the right to vote.
Chief Justice Earl Warren: This says whether the veteran is living or dead.
Mr. Samuel A. Hirshowitz: Only when the veteran is in the hospital or the spouse of the veteran is in the hospital or under -- I don't know too much about the federal veterans hospital legislation but I surmise that a wife of a veteran may have a right to get hospitalization in veterans hospital, but the principles are the same to provide for absentee registration and voting.
It does not say in there that you then have to qualify by English literacy and that we have contacted the New York City Board of Elections and we find they have no experience of anybody who has registered under that provision without qualifying and passing a literacy test.
Now as a matter of fact, in is much Mr. Chief Justice as you expressed interest in that point and the argument of my associate Mrs. Cone under the 4 (e) case, we have available, I'd like to make available to the Court in a further appendix, the form which is used by the Board of Elections.
Under this Section and you will see in there, there is a provision where the applicant must state whether he or she has a literacy certificate.
So that there is no substantial basis to the argument that the State has done anything, but I think is the most laudable thing here as tried in every way possible to give everybody the opportunity to register and vote regardless of the fact that because of their domicile and because of disability they may be unable to either take the literacy test or by the same token may be unable to register because they are located somewhere outside their voting district.
This is in the same line as I think the most frivolous objection that's been made by the appellant is that it's a badge of unconstitutionality for New York to provide that if you're disabled you can register and vote provided you -- the Board of Regents or the examiner is satisfied that but for the disability you would be entitled to vote.
The same provision is contained in the Federal Naturalization Act.
I just want to point out more to indicate the interest that New York has in getting everybody to the polls and voting.
In 1952, New York provided that anyone who's naturalized and therefore had to satisfy the federal authorities of the ability to read and write English, does not have to pass a literacy test as exempt for it and the ground for that thing that having already satisfied literacy requirements, it would be unnecessary for them to pass another examination.
Now, this goes for persons of all races and all creeds.
Now going back to the Armed Forces --
Chief Justice Earl Warren: Doesn't apply to Puerto Ricans because they are citizens.
Mr. Samuel A. Hirshowitz: No.
Chief Justice Earl Warren: It doesn't apply to Puerto Rican because they are citizens.
Mr. Samuel A. Hirshowitz: They are citizens, and because they have not up to that point satisfied anybody that they can read and write English, sixth grade or any grade for that matter.
Now, this exemption for the Armed services and exemption for veterans no matter what the content of that Section 155 of the Election Law is, is without the regard to race, creed and color.
There is no purpose of discrimination in that at all and as a matter of fact Mr. Chief Justice, in that same research that we did in New York County involving a 1964 election, there was 644,000 people that voted in that presidential election.
Of that 644,000, there were 12 people who registered, took advantage of the opportunity to register from -- as discharged veterans, honorably discharged veterans.
Of those 12 people, 10 people came from the 12th Assembly District in New York County and if you may remember the Rosario against Rockefeller case, the 12th Assembly District is in Harlem, one of the heaviest Negro districts.
Two people who registered under that provision came from the 10th Assembly District and bore Spanish-speaking names so the beneficiaries of the relaxation or the exemption as you call it Mr. Chief Justice, are that Negroes and the Puerto Ricans rather than those who were educated in New York schools would not need to benefit of this exemption at all.
New York's requirement cannot be challenged as being unreasonable.
It does not classify its citizens in any way.
It satisfies the test and the classification in the Harper case and any case that decided by this Court.
There is not the slightest basis for any challenge on the ground of discrimination.
It applies equally to all citizens.
It is the lack of a classification of which the appellant complaints here.
She insists that she is in a separate category and that Spanish learned in Puerto Rican schools must be treated equally with English by New York.
The Fourteenth Amendment does not guarantee a quality of language.
It guarantees a quality of citizenship.
The problems that may arise if Spanish -- if New York is compelled to give a Spanish examination were as illustrated by the concession made by my line and opponent that similar examination would have to be arranged for people who were educated in not only Yiddish, Italian, or whatever -- Chinese or any other language.
Chief Justice Earl Warren: May I ask you, may I ask you, what's your thought is on the mootness question that was raised by Mr. Justice Fortas, Mr. Justice Brennan with this case (Voice Overlap) --
Mr. Samuel A. Hirshowitz: You mean about that New Mexico case?
Chief Justice Earl Warren: No.
Would this case be moot if the --
Mr. Samuel A. Hirshowitz: We suggest that --
Chief Justice Earl Warren: -- Government prevailed in the case preceding this?
Mr. Samuel A. Hirshowitz: We suggested in our original brief and in support of our motion to dismiss that the case might be moot and in a footnote in our present brief, we have renewed that suggestion on the theory that if 4 (e) is upheld by this Court, the Court doesn't have to reach the constitutional questions raised in the Cardona case and that I believe there's a general principle of the -- adopted by the judiciary to avoid constitutional questions if that can be accomplished.
Justice William O. Douglas: Now, 4 (e) is a constitutional question?
Mr. Samuel A. Hirshowitz: 4 (e) is what sir?
Justice William O. Douglas: A constitutional question, is that a constitutional question?
Mr. Samuel A. Hirshowitz: Yes.
Yes Your Honor.
Justice Hugo L. Black: Do you think the New York law is in conflict with 4 (e)?
Mr. Samuel A. Hirshowitz: We -- well, New York law wouldn't be in conflict under 4 (e).
Congress, whether they delegated itself the power of preemption as to the New York law to the extent that it did in providing that the sixth grade education in a Puerto Rican school is equivalent to -- in Spanish it is equivalent to the literacy required by New York law.
Justice Hugo L. Black: I suppose -- supposed that law is valid that the federal statute, why isn't your law in conflict with it?
Mr. Samuel A. Hirshowitz: The law is not in conflict because as I understand -- as I understand the argument being made -- whether it was made this morning by the Solicitor General and by his associates, they were contending that under the -- under that subdivision 5 of Fourteenth Amendment, Section 5, the Congress had the power to go further than the courts in implementing --
Justice Hugo L. Black: But you're saying that you're challenging that are you?
Mr. Samuel A. Hirshowitz: We're challenging that in the Florie case.
Justice Hugo L. Black: I suppose Section 5 does give power --
Mr. Samuel A. Hirshowitz: But then --
Justice Hugo L. Black: – Congress should do this.
Where -- does your law conflict with it?
Mr. Samuel A. Hirshowitz: No.
It wouldn't in conflict there.
It would be merely a -- an application by Congress if this Court upheld that -- of its right under Section 5 to --
Justice Hugo L. Black: It would be the supreme law of the land, wouldn't it?
Mr. Samuel A. Hirshowitz: I didn't get --
Justice Hugo L. Black: If it's valid, it would be the supreme law, would it not?
Mr. Samuel A. Hirshowitz: It would be the supreme law, yes sir.
Justice Hugo L. Black: Now --
Mr. Samuel A. Hirshowitz: And would be followed by New York right away --
Justice Hugo L. Black: Are you arguing that it is invalid?
Mr. Samuel A. Hirshowitz: We're arguing in the first case that the 4 (e) is invalid for the primary reason, the territory argument, I don't think anybody on either side puts much stock in, but the primary argument being that in order for a Congress to take action, they must first show that there's discrimination.
Now in the South Carolina --
Justice Hugo L. Black: Now, suppose it has -- that that's what I want to get it so I'm not interested in that part of the argument.
Suppose if they do have the power to enact it under Section 5, if they reach the conclusion that the – it is necessary to do that to protect people against discrimination in voting?
Mr. Samuel A. Hirshowitz: Well, they --
Justice Hugo L. Black: Well, and there's any rational ground that anybody could think about, or conceive of to say that Congress had the right to do that, what about it then?
Mr. Samuel A. Hirshowitz: Not simply necessary to protect people from voting Mr. Chief Justice --
Justice Hugo L. Black: Well, the protection from discrimination.
Mr. Samuel A. Hirshowitz: That's different Mr. --
Justice Hugo L. Black: Alright.
Suppose if there's reasonable ground for Congress to believe that, why a separate language you want to use or other language than you use -- if it's not wholly irrational for them to say that they need protection from discrimination if this would result in it --
Mr. Samuel A. Hirshowitz: I'll --
Justice Hugo L. Black: – how wouldn't the law be valid?
Mr. Samuel A. Hirshowitz: Our view would be as in the -- that the view expressed in the South Carolina case is the proper application of Section 5 because in that case the Court went out of its way in the opinion to indicate the great effort that was made by federal authorities --
Justice Hugo L. Black: Are you saying, if Congress has to make -- has to produce evidence to show that had a -- that it had a right to believe, what --
Mr. Samuel A. Hirshowitz: The Section 5 as I recall which says, Congress may make laws from foster prohibitions I think.
Justice Hugo L. Black: Yes, have found the -- enforced by appropriate legislation, the provision to this Section.
Mr. Samuel A. Hirshowitz: Yes.
Well then I think they would have to show that there is a discrimination --
Justice Hugo L. Black: Well, who would have show it? Does Congress --
Mr. Samuel A. Hirshowitz: The extent of --
Justice Hugo L. Black: -- have to produce evidence to show that it has grounds to believe that the law ought to be passed or is it -- very heavy burden on the people who attack its law?
Mr. Samuel A. Hirshowitz: I think there's --
Justice Hugo L. Black: It's all that it had no ground.
Mr. Samuel A. Hirshowitz: Mr. Justice Black, I think this would be too easy in application of that section of the Fourteenth Amendment because the Congress would be enacting legislation without any proper background.
I think the position that caught took in the South Carolina case which we supported by a brief that we filed is a proper one that where there is efforts to show of -- that where is the record shows that efforts have been made by the federal judicial authorities and federal administrative officials to enforce the provisions for the Fourteenth Amendment and those efforts have been patently unsuccessful that Congress has a right to step in and otherwise, they could step in on every single occasion without any prior (Voice Overlap) --
Justice Hugo L. Black: Well, they could step in, in many fields where --
Mr. Samuel A. Hirshowitz: No.
Justice Hugo L. Black: -- it has power to enact legislation in that field without having in a burden put on the Congress to show that it had a right to do it?
Mr. Samuel A. Hirshowitz: Well Mr. Justice Black, the best illustration on what I'm trying to say is what happened in this 4 (e).
Mister -- Senators Javits and Kennedy, sponsors of this section from New York admitted on the floor of Congress that there was no evidence of discrimination by New York, that's in the congressional record and we cite that in our brief, yet Congress went ahead --
Justice Hugo L. Black: Most Congress believed that there was enough probability of it that it is necessary in the public interest to protect against discrimination on account of race or color or what not, why wouldn't have a right to do it under Section 5?
It is the burden on the Congress?
Mr. Samuel A. Hirshowitz: I --
Justice Hugo L. Black: Or the Government to show that it had grounds for it or put on the people who attack the law?
Mr. Samuel A. Hirshowitz: I would suggest first as you say Mr. Justice Black, it would have to be evidence of actual discrimination and secondly, --
Justice Hugo L. Black: I don't suggest that.
Mr. Samuel A. Hirshowitz: Well, as stated for you.
Secondly, that the -- before this Court should uphold this extension of congressional power under Section 5 of the Fourteenth Amendment, the Court should be impressed with the fact that it was in the South Carolina case that there's a long history of frustration of judicial and administrative process to command respect for the dictates of the Fourteenth Amendment and this of course is wholly absent from this case and the only attempted evidence of that is to go back to 1920 -- 1915 to 1920 when the amendment was on the consideration.
Sure, there were people, I readily admit there were people at the constitutional convention who have narrow-minded concepts for the enactment of these -- this constitutional provision, but at the same time, there were hind-minded people and we have quoted from one or more of those people whose interest was in the promotion of the welfare of the State of New York.
Chief Justice Earl Warren: Very well.
Rebuttal of Paul O'dwyer
Mr. Paul O'dwyer: May I just for a moment.
Chief Justice Earl Warren: You may just have a moment.
Mr. Paul O'dwyer: Your Honors that I think that the burden placed upon this Court in dealing with the 4 (e) matter has been considerably lightened by consideration of the facts outlined in the Cardona case which have not been questioned.
All of the allegations contained in the record are without contradiction.
In so consequently in order to arrive at the point where you feel that Congress is justified in the enactment of 4 (e) having first from to the conclusion that by virtue of the Grandfather Clause and the other provisions and the other arguments which are made that the law is unconstitutional in the first -- in the first place then this presents a basis for the -- for the establishment of the 4 (e) if the law at the present time.
But it would seem to me that they are intertwined to the point for a consideration of the first case must come after a full and complete consideration of the Cardona case.
Chief Justice Earl Warren: We'll return.