Civil Rights: Challenge from the South

The significance of the case on trial before the U.S. Supreme Court could not be underestimated. Twenty-six states were lined up on opposing sides. U.S.

Attorney General Nicholas Katzenbach himself was both defendant and defense counsel. The court allotted eight hours—longest in memory—for oral arguments. Even Chief Justice Earl Warren was moved to note that the outcome of South Carolina v. Nicholas deB. Katzenbach would have "wide and profound implications in the life of our nation."

At issue was the constitutionality of the Voting Rights Act of 1965, enacted in August, which outlawed literacy tests and other registration practices used by Southern states to keep Negroes off the voting rolls. Joining South Carolina in attacking the law were five sister states also directly affected by the bill—Alabama, Georgia, Louisiana, Mississippi and Virginia. To lend moral support to Katzenbach and the Federal Government, 20 other states were represented as amid curiae.

Arbitrary & Capricious. "We do not come here to challenge the purpose of this act," said South Carolina's David W. Robinson II, 34, who, as special counsel for his state, opened the two-day argument. "We believe that every citizen, white and black, has the right to vote under reasonable state regulation. And we believe the Congress has a duty to enforce that right." Nonetheless, he contended, "the Constitution, as originally drawn, never gave Congress the power to do away with valid voting regulations," while the 15th Amendment, on which the Voting Rights Act is based, "gives Congress no power to suspend lawful and reasonable voting regulations."

Robinson objected that any state with a literacy test and a high percentage of illiterates (20% of adults in South Carolina) is bound to have a low percentage of voters. Thus, he reasoned, the act's automatic triggering mechanism, which is aimed at any state or county where less than 50% of the voting-age population was registered for or cast ballots in the 1964 presidential election, is arbitrary and capricious. "Congress can't pick out a few states and say that because these facts existed, we're going to apply the law to you," he argued. "The legislative prerogative doesn't include the right to put a penalty on one person and one person only."

Double Violation. Louisiana Attorney General Jack P. F. Gremillion defended his state's right to disfranchise mothers of illegitimate children—"bastardizing females," as he put it—along with convicted felons. Georgia's Deputy Assistant Attorney General E. Freeman Leverett admitted that he was "ashamed" of the South's history of voter discrimination, adding: "But Congress cannot, in order to appease a mob in the streets, invoke unconstitutional means to achieve a constitutional end." Meanwhile, Defendant Katzenbach, who had been accompanied to court by Solicitor General Thurgood Marshall and Assistant Attorney General John Doar, sat quietly awaiting his turn.