1. A State may, consistently with the Fourteenth and Seventeenth
Amendments, apply a literacy test to all voters irrespective of
race or color.
Gunn v. United States, 238 U.
S. 347. Pp.
360 U. S.
50-53.
2. The North Carolina requirement here involved, which is
applicable to members of all races and requires that the
prospective voter "be able to read an write any section of the
Constitution of North Carolina in the English language," does not,
on its face, violate the Fifteenth Amendment . Pp.
360 U. S.
53-54.
248 N.C. 102,
102
S.E.2d 853, affirmed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This controversy started in a Federal District Court. Appellant,
a Negro citizen of North Carolina, sued to have the literacy test
for voters prescribed by that State declared unconstitutional and
void. A three-judge court was convened. That court noted that the
literacy test was part of a provision of the North Carolina
Constitution that also included a grandfather clause. It said
that
Page 360 U. S. 46
the grandfather clause plainly would be unconstitutional under
Guinn v. United States, 238 U. S. 347. It
noted, however, that the North Carolina statute which enforced the
registration requirements contained in the State Constitution had
been superseded by a 1957 Act, and that the 1957 Act does not
contain the grandfather clause or any reference to it. But being
uncertain as to the significance of the 1957 Act, and deeming it
wise to have all administrative remedies under that Act exhausted
before the federal court acted, it stayed its action, retaining
jurisdiction for a reasonable time to enable appellant to exhaust
her administrative remedies and obtain from the state courts an
interpretation of the statute in light of the State Constitution.
Lassiter v. Taylor, 152 F.
Supp. 295.
Thereupon, the instant case was commenced. It started as an
administrative proceeding. Appellant applied for registration as a
voter. Her registration was denied by the registrar because she
refused to submit to a literacy test as required by the North
Carolina statute. [
Footnote 1]
She appealed to the County Board of Elections. On the
de
novo hearing before that Board, appellant again refused to
take the literacy test, and she was again denied registration for
that reason. She appealed to the Superior Court, which sustained
the Board against the claim that the requirement of the literacy
test violated the Fourteenth, Fifteenth, and Seventeenth Amendments
of the Federal Constitution. Preserving her federal question, she
appealed to the North Carolina Supreme Court, which affirmed the
lower court. 248 N.C. 102,
102 S.E.2d
853.
Page 360 U. S. 47
The case came here by appeal, 28 U.S.C. § 1257(2), and we noted
probable jurisdiction. 358 U.S. 916.
The literacy test is a part of § 4 of Art. VI of the North
Carolina Constitution. That test is contained in the first sentence
of § 4. The second sentence contains a so-called grandfather
clause. The entire § 4 reads as follows:
"Every person presenting himself for registration shall be able
to read and write any section of the Constitution in the English
language. But no male person who was, on January 1, 1867, or at any
time prior thereto, entitled to vote under the laws of any state in
the United states wherein he then resided, and no lineal descendant
of any such person, shall be denied the right to register and vote
at any election in this State by reason of his failure to possess
the educational qualifications herein prescribed: Provided, he
shall have registered in accordance with the terms of this section
prior to December 1, 1908. The General Assembly shall provide for
the registration of all persons, entitled to vote without the
educational qualifications herein prescribed, and shall, on or
before November 1, 1908, provide for the making of a permanent
record of such registration, and all persons so registered shall
forever thereafter have the right to vote in all elections by the
people in this State, unless disqualified under section 2 of this
article."
Originally, Art. VI contained in § 5 the following
provision:
"That this amendment to the Constitution is presented and
adopted as one indivisible plan for the regulation of the suffrage,
with the intent and purpose to so connect the different parts, and
to make them so dependent upon each other, that the whole shall
stand or fall together. "
Page 360 U. S. 48
But the North Carolina Supreme Court in the instant case held
that a 1945 amendment to Article VI freed it of the indivisibility
clause. That amendment rephrased § 1 of Art. VI to read as
follows:
"Every person born in the United States, and every person who
has been naturalized, twenty-one years of age, and possessing the
qualifications set out in this Article, shall be entitled to
vote."
That court said that "one of those qualifications" was the
literacy test contained in § 4 of Art. VI; and that the 1945
amendment
"had the effect of incorporating and adopting anew the
provisions as to the qualifications required of a voter as set out
in Article VI, freed of the indivisibility clause of the 1902
amendment. And the way was made clear for the General Assembly to
act."
248 N.C. at 112, 102 S.E.2d at 860.
In 1957, the Legislature rewrote General Statutes § 163-28 as we
have noted. [
Footnote 2] Prior
to that 1957 amendment, § 163-28 perpetuated the grandfather clause
contained in § 4 of Art. VI of the Constitution, and § 163-32
established a procedure for registration to effectuate it.
[
Footnote 3] But
Page 360 U. S. 49
the 1957 amendment contained a provision that "[a]ll laws and
clauses of laws in conflict with this Act are hereby repealed."
[
Footnote 4] The federal
three-judge court ruled that this 1957 amendment eliminated the
grandfather clause from the statute. 152 F. Supp. at 296.
The Attorney General of North Carolina, in an
amicus
brief, agrees that the grandfather clause contained in Art. VI is
in conflict with the Fifteenth Amendment. Appellee maintains that
the North Carolina Supreme Court ruled that the invalidity of that
part of Art. VI does not impair the remainder of Art. VI, since the
1945 amendment to Art. VI freed it of its indivisibility clause.
Under that view, Art. VI would impose the same literacy test as
that imposed by the 1957 statute, and neither would be linked with
the grandfather clause, which, though present in print, is
separable from the rest, and void. We so read the opinion of the
North Carolina Supreme Court.
Appellant argues that that is not the end of the problem
presented by the grandfather clause. There is a provision in the
General Statutes for permanent registration in some counties.
[
Footnote 5] Appellant points
out that,
Page 360 U. S. 50
although the cut-off date in the grandfather clause was December
1, 1908, those who registered before then might still be voting. If
they were allowed to vote without taking a literacy test, and if
appellant were denied the right to vote unless she passed it,
members of the white race would receive preferential privileges of
the ballot contrary to the command of the Fifteenth Amendment. That
would be analogous to the problem posed in the classic case of
Yick Wo v. Hopkins, 118 U. S. 356,
where an ordinance unimpeachable on its face was applied in such a
way as to violate the guarantee of equal protection contained in
the Fourteenth Amendment. But this issue of discrimination in the
actual operation of the ballot laws of North Carolina has not been
framed in the issues presented for the state court litigation.
Cf. Williams v. Mississippi, 170 U.
S. 213,
170 U. S. 225.
So we do not reach it. But we mention it in passing so that it may
be clear that nothing we say or do here will prejudice appellant in
tendering that issue in the federal proceedings which await the
termination of this state court litigation.
We come then to the question whether a State may, consistently
with the Fourteenth and Seventeenth Amendments, apply a literacy
test to all voters irrespective of race or color. The Court in
Guinn v. United States, supra, at
238 U. S. 366,
disposed of the question in a few words:
"No time need be spent on the question of the validity of the
literacy test, considered alone, since, as we have seen, its
establishment was but the exercise by the state of a lawful power
vested in it not subject to our supervision, and, indeed, its
validity is admitted."
The States have long been held to have broad powers to determine
the conditions under which the right of suffrage may be exercised,
Pope v. Williams, 193 U. S. 621,
193 U. S. 633;
Mason v. Missouri, 179 U. S. 328,
179 U. S. 335,
absent, of course, the discrimination which the Constitution
condemns.
Page 360 U. S. 51
Article I, § 2 of the Constitution in its provision for the
election of members of the House of Representatives and the
Seventeenth Amendment in its provision for the election of Senators
provide that officials will be chosen "by the People." Each
provision goes on to state that "the Electors in each State shall
the Qualifications requisite for Electors of the most numerous
Branch of the State Legislature." So, while the right of suffrage
is established and guaranteed by the Constitution (
Ex parte
Yarbrough, 110 U. S. 651,
110 U. S.
663-665;
Smith v. Allwright, 321 U.
S. 649,
321 U. S.
661-662), it is subject to the imposition of state
standards which are not discriminatory, and which do not contravene
any restriction that Congress, acting pursuant to its
constitutional powers, has imposed.
See United States v.
Classic, 313 U. S. 299,
313 U. S. 315.
While § 2 of the Fourteenth Amendment, which provides for
apportionment of Representatives among the States according to
their respective numbers counting the whole number of persons in
each State (except Indians not taxed), speaks of "the right to
vote," the right protected "refers to the right to vote as
established by the laws and constitution of the state."
McPherson v. Blacker, 146 U. S. 1,
146 U. S. 39.
We do not suggest that any standards which a State desires to
adopt may be required of voters. But there is wide scope for
exercise of its jurisdiction. Residence requirements, age, previous
criminal record (
Davis v. Beason, 133 U.
S. 333,
133 U. S.
345-347) are obvious examples indicating factors which a
State may take into consideration in determining the qualifications
of voters. The ability to read and write likewise has some relation
to standards designed to promote intelligent use of the ballot.
Literacy and illiteracy are neutral on race, creed, color, and sex,
as reports around the world show. [
Footnote 6] Literacy
Page 360 U. S. 52
and intelligence are obviously not synonymous. Illiterate people
may be intelligent voters. Yet, in our society, where newspapers,
periodicals, books, and other printed matter canvass and debate
campaign issues, a State might conclude that only those who are
literate should exercise the franchise.
Cf. Franklin v.
Harper, 205 Ga. 779, 55 S.E.2d 221,
appeal dismissed,
339 U.S. 946. It was said last century in Massachusetts that a
literacy test was designed to insure an "independent and
intelligent" exercise of the right of suffrage. [
Footnote 7]
Stone v.
Page 360 U. S. 53
Smith, 159 Mass. 413-414, 34 N.E. 521. North Carolina
agrees. We do not sit in judgment on the wisdom of that policy. We
cannot say, however, that it is not an allowable one measured by
constitutional standards.
Of course, a literacy test, fair on its face, may be employed to
perpetuate that discrimination which the Fifteenth Amendment was
designed to uproot. No such influence is charged here. On the other
hand, a literacy test may be unconstitutional on its face. In
Davis v. Schnell, 81 F. Supp.
872, 873,
affirmed, 336 U.S. 933, the test was the
citizen's ability to "understand and explain" an article of the
Federal Constitution. The legislative setting of that provision and
the great discretion it vested in the registrar made clear that a
literacy requirement was merely a device to make racial
discrimination easy. We cannot make the same inference here. The
present requirement, applicable to members of all races, is that
the prospective voter "be able to read and write any section of the
Constitution of North Carolina in the English
Page 360 U. S. 54
language." That seems to us to be one fair way of determining
whether a person is literate, not a calculated scheme to lay
springes for the citizen. Certainly we cannot condemn it on its
face as a device unrelated to the desire of North Carolina to raise
the standards for people of all races who cast the ballot.
Affirmed.
[
Footnote 1]
This Act, passed in 1957, provides in § 163-28 as follows:
"Every person presenting himself for registration shall be able
to read and write any section of the Constitution of North Carolina
in the English language. It shall be the duty of each registrar to
administer the provisions of this section."
Sections 163-28.1, 163-28.2, and 163-28.3 provide the
administrative remedies pursued in this case.
[
Footnote 2]
Note
1 supra.
[
Footnote 3]
Section 163-32 provided:
"Every person claiming the benefit of section four of article
six of the Constitution of North Carolina, as ratified at the
general election on the second day of August, one thousand nine
hundred, and who shall be entitled to register upon the permanent
record for registration provided for under said section four,
shall, prior to December first, one thousand nine hundred and
eight, apply or registration to the officer charged with the
registration of voters as prescribed by law in each regular
election to be held in the State for members of the General
Assembly, and such persons shall take and subscribe before such
officer an oath in the following form,
viz.:"
" I am a citizen of the United States and of the State of North
Carolina; I am __ years of age. I was, on the first day of January,
A.D. one thousand eight hundred and sixty-seven, or prior to said
date, entitled to vote under the constitution and laws of the state
of _______, in which I then resided (or, I am a lineal descendant
of ___________, who was, on January one, one thousand eight hundred
and sixty-seven, or prior to that date, entitled to vote under the
constitution and laws of the state of _________, wherein he then
resided)."
[
Footnote 4]
N.C.Laws 1957, c. 287, pp. 277, 278.
[
Footnote 5]
Section 163-31.2 provides:
"In counties having one or more municipalities with a population
in excess of 10,000 and in which a modern loose-leaf and visible
registration system has been established as permitted by G.S.
163-43, with a full time registration as authorized by G.S. 163-31,
such registration shall be a permanent public record of
registration and qualification to vote, and the same shall not
thereafter be cancelled and a new registration ordered, either by
precinct or countywide, unless such registration has been lost or
destroyed by theft, fire or other hazard."
[
Footnote 6]
World Illiteracy at Mid-Century, Unesco (1957).
[
Footnote 7]
Nineteen States, including North Carolina, have some sort of
literacy requirement as a prerequisite to eligibility for voting.
Five require that the voter be able to read a section of the State
or Federal Constitution and write his own name. Arizona Rev.Stat. §
16-101; Cal.Election Code § 220; Del.Code Ann., Tit. 15, § 1701;
Me.Rev.Stat., c. 3, § 2; Mass.Gen.L.Ann., c. 51, § 1. Five require
that the elector be able to read and write a section of the Federal
or State Constitution. Ala.Code, 1940, Tit. 17, § 32;
N.H.Rev.Stat.Ann. § 55:10-55:12; N.C.Gen.Stat. § 163-28;
Okla.Stat.Ann., Tit. 26, § 61; S.C.Code § 23-62. Alabama also
requires that the voter be of "good character" and "embrace the
duties and obligations of citizenship" under the Federal and State
Constitutions. Ala.Code, Tit. 17, § 32 (1955 Supp.).
Two States require that the voter be able to read and write
English. N.Y. Election Law § 150; Ore.Rev.Stat. § 247.131. Wyoming
(Wyo.Comp.Stat.Ann. § 31-113) and Connecticut (Conn.Gen.Stat. §
9-12) require that the voter read a constitutional provision in
English, while Virginia (Va.Code § 24-68) requires that the voting
application be written in the applicant's hand before the registrar
and without aid, suggestion or memoranda. Washington (Wash.Rev.Code
§ 29.07.070) has the requirement that the voter be able to read and
speak the English language.
Georgia requires that the voter read intelligibly and write
legibly a section of the State or Federal Constitution. If he is
physically unable to do so, he may qualify if he can give a
reasonable interpretation of a section read to him. An alternative
means of qualifying is provided: if one has good character and
understands the duties and obligations of citizenship under a
republican government, and he can answer correctly 20 of 30
questions listed in the statute (
e.g., How does the
Constitution of Georgia provide that a county site may be changed?,
what is treason against the State of Georgia?, who are the
solicitor general and the judge of the State Judicial Circuit in
which you live?), he is eligible to vote. Ga.Code Ann. §§ 34-117,
34-120.
In Louisiana, one qualifies if he can read and write English or
his mother tongue, is of good character, and understands the duties
and obligations of citizenship under a republican form of
government. If he cannot read and write, he can qualify if he can
give a reasonable interpretation of a section of the State or
Federal Constitution when read to him, and if he is attached to the
principles of the Federal and State Constitutions. La.Rev.Stat.,
Tit. 18, § 31.
In Mississippi, the applicant must be able to read and write a
section of the State Constitution and give a reasonable
interpretation of it. He must also demonstrate to the registrar a
reasonable understanding of the duties and obligations of
citizenship under a constitutional form of government. Miss.Code
Ann. § 3213.