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No Coincidence. Under a carefully inclusive formula, the bill covers any state or county where 1) a literacy test or similar qualifying device was in force as of Nov. 1, 1964, and where 2) fewer than 50% of voting-age residents either were registered or cast ballots in the 1964 presidential election. "The premise," Katzenbach says, "is that the coincidence of low electoral participation and the use of tests and devices results from racial discrimination in the administration of the tests and devices."
By no coincidence, that formula is calculated to attack the most flagrant rights offenders in Mississippi, Alabama, Louisiana, Georgia, South Carolina, Virginia and 34 counties in North Carolina. Under the bill, the Attorney General can abolish the literacy tests in those places for ten years. He also has the power to replace local registration officials with federal registrars.
Big Fish. Inclusive as they tried to be, drafters of the bill did miss some states with records of voting abuses. There is voter discrimination in Florida, Arkansas and Tennessee, but they do not fall under the bill's provisions because those states do not require literacy tests. Says a Justice Department attorney: "If we had tried to use a finer net, we would have caught a lot more nondiscriminatory fish."
As it turns out, the net does catch a few apparently innocent fish. Aroostook County, Me.; Elmore County, Idaho; Apache County, Ariz., and the whole state of Alaska would be subject to federal control under the new bill because they, too, used literacy tests and failed to turn out 50% of their eligible voters in November. Says Katzenbach: "As far as I know, it may have snowed in Maine on Election Day, and that's why they had a low turnout." To get federal dispensation, these places would have only to show that they have not been guilty of discrimination.
The machinery for that purpose lies in a provision for an appeal to a three-judge U.S. District Court in the District of Columbia. If the court found no evidence of voting discrimination, federal control over voting in the state would be canceled. But Katzenbach & Co. want to take no chances on missing their primary targets. They wrote in a clause saying that any state found by a federal court to have practiced voting discrimination—at any time over the past ten years—cannot be exempted through appeal; the state automatically remains under the Attorney General's jurisdiction.
Since Mississippi, Alabama and Louisiana have all been slapped with discriminatory voting judgments in recent months, each state would face ten years of federal voting controls. Georgia, slapped with a similar judgment in 1960, could not wriggle out for another five years. South Carolina and Virginia could be exempted through appeal, but the Justice Department would almost certainly put up an extremely tough case against them.