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AGO 1967 No. 21 - June 15, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


ELECTIONS - CIVIL RIGHTS - VOTER REGISTRATION - ADMINISTRATION OF LITERACY TEST TO PERSONS REGISTERING TO VOTE.

Persons registering to vote in Washington cannot currently be tested for literacy in the manner provided for in RCW 29.07.070 (13), in view of the provisions of the 1965 federal voting rights act (42 U.S.C., § 1971 (a)).

                                                              - - - - - - - - - - - - -

                                                                   June 15, 1967

Honorable Alfred E. Cowles
Executive Secretary, Washington
State Board Against Discrimination
Senate Arms Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1967 No. 21

Dear Sir:

            You have asked for the opinion of this office on a question which we paraphrase as follows:

            May persons registering to vote in Washington currently be tested for literacy in the manner provided for in RCW 29.07.070 (13), in view of the provisions of recent federal voting rights legislation?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The Washington constitution (Article VI, § 1) provides that:

            "All persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections: . . . they shall be able to read and speak the English language: . . . The legislative authority shall enact laws defining the manner of ascertaining the qualifications of voters as to their ability to read and speak the English language, and providing for punishment of persons voting or registering in violation of the provision of this section."

             [[Orig. Op. Page 2]]

            Pursuant to this article, the Washington legislature has provided (RCW 29.07.070):

            "Having administered the oath, the registration officer shall interrogate the applicant for registration, concerning his qualifications as a voter . . ., requiring him to state:

            ". . .

            "(13) Whether the applicant . . . is able to read and speak the English language so as to comprehend the meaning of ordinary English prose, and in case the registration officer is not satisfied in that regard, he may require the applicant to read aloud and explain the meaning of some ordinary English prose;"

            Notably, this is the only Washington statute pertaining to the administration of literacy tests in implementation of the constitutional provision.  It is further to be noted that this office has previously advised that the Washington literacy requirement has been modified by the "Puerto Rico" provision contained in the federal voting rights act of 1965, 42 U.S.C. § 1973b (e).  See our letter to Honorable A. Ludlow Kramer, Secretary of State, dated September 20, 1966, a copy of which is enclosed.  This provision says that literacy in English cannot be a qualification to vote for persons educated in American flag schools in which the predominant classroom language was other than English.

            Except for persons who come within the Puerto Rico provision,supra, the Washington literacy requirement remains in effect.  However, the manner oftesting for literacy is now controlled by federal law, as will be hereinafter seen.  Preliminarily though, it should be noticed that the state of Washington is not one of the places where literacy tests have been prohibited outright by federal legislation.  The 1965 voting rights act suspends literacy tests and other devices only in those states or political subdivisions where the director of census determines that less than fifty percent of the persons of voting age residing therein were registered on November 1, 1964, or that less than fifty percent of such persons voted in the presidential election of November, 1964.  See 42 U.S.C.  [[Orig. Op. Page 3]] § 1973b.  Washington was not included in the director of census' report on the states that failed these fifty-percent requirements.  See 30 Fed. Reg. 9897.

            Unlike this more publicized part of the federal voting rights legislation, the part controlling the manner of administering literacy tests applies uniformly in all the states, including, of course, Washington.  The pertinent language appears in 42 U.S.C., § 1971 (a), as follows:

            ". . .

            "(2) No person acting under color of law shall -

            ". . .

            "(C) employ any literacy test as a qualification for voting in any election unless (i) such test is administered to each individual and is conducted wholly in writing, and (ii) a certified copy of the test and of the answers given by the individual is furnished to him within twenty-five days of the submission of his request made within the period of time during which records and papers are required to be retained and preserved pursuant to sections 1974-1974e of this title: . . .

            "(3) For purposes of this subsection -

            ". . .

            "(B) the phrase 'literacy test' includes any test of the ability to read, write, understand, or interpret any matter."  (Emphasis supplied.)

            The quoted language originated in the civil rights act of 1964.  At that time it was limited to federal elections, but the 1965 voting rights act (§ 15 (a), 79 Stat. 445) made it applicable to state and local elections as well.

            The purpose of this feature of the federal voting rights legislation was explained in the report of the House Judiciary Committee recommending passage of the 1964 Civil Rights Act as  [[Orig. Op. Page 4]] follows:1/

            "Title I is designed to meet problems encountered in the operation and enforcement of the Civil Rights Acts of 1957 and 1960, by which the Congress took steps to guarantee to all citizens the right to vote without discrimination as to race or color.

            ". . .

            "Section 101 (a) is designed to insure nondiscriminatory practices in the registration of voters for Federal elections.  It would amend existing law (42 U.S.C. 1971 (a)) by requiring the application of uniform standards, practices, and procedures to all persons seeking to vote in Federal elections . . . These provisions would provide specific protections to the right to vote and would reduce opportunities for discriminatory application of voting standards without in any way lessening or limiting the broad prohibitions against voting discrimination already contained in existing law."

            Seven members of the committee expressed additional views as follows:2/

            "Closely related to the delays in justice are the intricate methods employed by some State or county voting officials to defeat Negro registration . . .

            ". . .

             [[Orig. Op. Page 5]]

            "(T)he basic troubles come not from discriminatory laws, but (as the Civil Rights Commission so well expressed in its 1959 report, p. 133) 'from the discriminatory application and administration of apparently nondiscriminatory laws.'

            "It is for these reasons that the committee has amended the 1957 and 1960 Civil Rights Acts to provide that, in Federal elections State registration officials must: (1) apply standards, practices, and procedures equally among individuals seeking to register to vote; . . . (3) administer literacy tests in writing. . . ."3/

             The approach of the earlier 1957 and 1960 Civil Rights Acts had been to enforce voting rights by authorizing the United States attorney general to bring civil lawsuits against offending state officers.  But the state officers were acting under laws designed to give them an arbitrary discretion which was not easily subjected to judicial review.  See,Louisiana v. United States, 380 U.S. 145 at 151-52 (1965), in which the court found that interpretation tests, such as Louisiana's requirement that an applicant give a reasonable interpretation of any section of the state or federal constitution, were adopted for the frank purpose of disfranchising Negroes, it being understood that the registration officers would use their discretion for that purpose.  And, when the United States attorney general succeeded in having a state literacy statute declared unconstitutional, another slightly different one would be enacted to take its place.

            Thus, in 1964, Congress decided to get to the heart of the problem; i.e., the practice of vesting unlimited discretion in state registration officers.  Accordingly, the 1964 Civil  [[Orig. Op. Page 6]] Rights Act prohibited the use of literacy tests unless they met federal standards for uniform application.  The basic operative language of the statute (now applicable as to state elections as well) is:

            "No person . . . shall . . . employ any literacy test as a qualification for voting in any election unless . . . such test is administered to each individual and is conducted wholly in writing . . ."

            In other words, unless a state's system for administering literacy tests meets the standards of the federal law, state officers may not use literacy tests at all.4/

             RCW 29.07.070, supra, does not presently require that a literacy test be given to each person who applies to register to vote.  Instead, our statute says that a test is to be administered only if the registration officer "is not satisfied" with the applicant's sworn statement that he is able to read and speak the English language so as to comprehend the meaning of ordinary English prose.

            In addition, our statute does not require that the test be given in writing; it says that the registration officer -

            ". . . may require the applicant to read aloud and explain the meaning of some ordinary English prose;"

            While Washington is not one of the states with a tradition of discrimination against minorities in voting, our statutory provisions on literacy tests are like those which were in effect where abuse occurred.  The federal government has prohibited the discretionary approach, and Washington is bound to obey the law5/ as much as those states whose misconduct caused it to be enacted.

            We reiterate that it is literacy testing, not the literacy requirement, at which 42 U.S.C. § 1971 (a) (2) is directed.

             [[Orig. Op. Page 7]]

            Except in cases where the Puerto Rico provision applies, we see nothing in the federal voting rights legislation which prevents a voter registration officer from requiring an applicant to state (RCW 29.07.070) and swear (RCW 29.07.080) that he is able to read and comprehend ordinary English prose.6/   A person who falsely swears for this purpose is guilty of a felony.  RCW 29.85.200.

            To summarize, we have concluded that:

            (1) The Washington requirement that a person be able to read and speak the English language in order to vote remains in effect, except for persons educated in American flag schools where the predominant classroom language was other than English.

            (2) Except as noted in (1), federal law does not prevent a voter registration officer from requiring an applicant to state and swear that he is able to read and speak the English language.

             [[Orig. Op. Page 8]]

            (3) Until Washington provides for the administration of literacy tests on a uniform basis in conformity with federal law, no person may be required to take a literacy test.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYTLER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/House Report No. 914, 88th Congress, 2d Session, 1964 U.S. Code Cong. & Ad. News 2391 at 2394.

2/Additional views on H.R. 7152 by Representatives McCulloch, Lindsay, Cahill, Shriver, MacGregor, Mathias and Bromwell, 1964 U.S. Code Cong. & Ad. News, 2487 at 2490.

3/For additional legislative history, see the comments of Representative Rogers of Colorado on the House floor, January 31, 1964, 110 Cong. Record 1548, and of Senator Keating on the Senate floor, April 1, 1964, 110 Cong. Record 6717.

4/See note, Federal Protection of Negro Voting Rights, 51 Va. L.R. 1051 [[51 Va. L. Rev.]]at 1192.

5/The constitution of the United States says:  "This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land . . . anything in the constitution or laws of any state to the contrary notwithstanding."  Article VI, clause 2.

6/For their own guidance, voter registration officers may wish to take note of 42 U.S.C., § 1971(c) which says that in any lawsuit brought by the United States attorney general to enforce voting rights:

            ". . . there shall be a rebuttable presumption that any person who has not been adjudged an incompetent and who has completed the sixth grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico where instruction is carried on predominantly in the English language, possesses sufficient literacy, comprehension, and intelligence to vote in any election."

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