(concurring in part and dissenting in part):
I join the foregoing opinion except for its treatment of Title I, section 4 (relating to the trigger provisions for the literacy tests) because I view plaintiffs’ attack on that section to be premature. I also have some additional views concerning the constitutionality of Title III.
Title I — The Trigger Provisions
Section 4(b) of the Voting Rights Amendments of 1970 provides, inter alia:
[T]he provisions of subsection (a) [Sec. 4(a) of the Voting Rights Act of 1965] shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (iij the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968. (Emphasis added).1
*1012The requirement that the Director of the Census shall determine the factual matters specified in the statute requires such determination to be made concerning facts which existed on November 1, 1968. With respect to this statutory requirement the Director of the Census advised the Assistant Attorney General of the United States by letter of July 27, 19702 that the Census Bureau “could not in good conscience make the determinations without the benefit of new benchmark data. New benchmark data, [would] be uniformly provided by the 1970 census results.” He added it was necessary for the Census Bureau “to wait for the results of the 1970 census” which would not become available for New York until “toward the end of the year.”3 We are thus faced with the fact that the person designated by Congress in the statute to make the required important determinations that trigger the application of the Act has stated, in effect, that he cannot make a good faith determination of the required facts until later in the year when the necessary underlying data will be available, and with the fact that the required determination has not been made.
In the face of this recognition of the non-existence of the underlying factual material from which the statutory determination, in the opinion of the Census Director, must be made, and also the non-existence of the statutory determination by the Director, the majority opinion in footnotes 16 and 17 questions whether the Director of the Census has discretion to “delay” making the determination on the “best available figures.” In my view it is not a question of discretion for the Director but a matter of what the statute directs him to determine and the date concerning which such determination must be made. In this respect the statute is very definite. He must determine the necessary facts involving population, registrations and voting as of November 1, 1968. And he has stated that he cannot do this in good conscience until the 1970 census figures are available.4 Footnotes 16 and 17 suggest, in effect, that the Census Director, lacking the necessary 1970 data, should make the determinations on the basis of the 1960 census figures and implies that the court might so direct him to make his determination.5 But the statute designates the Census Director as the person to make the decisions, and not this court or any other person. Furthermore, the decision of the Census Director on the matter is final and conclusive and “not reviewable in any court.”6 It is accordingly my opinion that there is no *1013basis for the court in this case to question the Director’s preliminary decision as to what underlying factual data he needs to permit him to make the statutory determination committed to his unreviewable judgment.
The court’s opinion, however, does not go so far as to order the Director to make the determination on the basis of 1960 data. Rather, it states:
[I]t is clear that there is a danger that Section 4(a) will apply to New York County, whenever the determination is made by the director of the census. Plaintiffs’ assertions to this effect were uncontested by defendants.
In my view this holding that we are required to accept plaintiffs’ factual assertions, which are contained in his brief and which do not even rise to the dignity of factual allegations in his pleadings, is impermissible. First, the court is denied the power to substitute its factual determination, or that of the plaintiff, for that of the Census Director by section 4(b) of the Voting Rights Act of 1965.7 This section, as above stated, prohibits the court from reviewing the Director’s determination and, in my opinion, even his preliminary determination that he cannot make the required determination without the 1970 census figures, is a “determination * * * under this section [§ 4(b)]”8 of the Act. Secondly, the statute requires the determination to be made by the Census Director and that admittedly has not been made.
It seems clear that Congress intended a good faith determination to be made by the Director and that until the necessary underlying facts are available from which such determination can be made by the person designated by the statute it would not be sufficient to substitute a determination or mere allegation by another person which admittedly is based on factual data that the person designated by the Act considered to be inadequate. It is obvious that such would not be a determination by the Director of the Census.
Further, the statute directs that the Director of the Census shall “determine” the required factual matters. To determine something means “to fix conclusively or authoritatively * * * to settle a question or controversy * * Under its preferential dictionary definition the word means an authoritative decision on the matter involved. Webster’s New International Dictionary 616 (3d ed. 1961). A secondary meaning of the word is “to establish causally.” It is apparent from the context of this statute, and the vital importance of the matters that flow from the determination, that Congress intended to direct that an authoritative and not a casual determination was to be made. The determination was not to be a guess.9 That is the difference between what footnote 16 would substitute for the Director’s determination and my view of what the Act requires.
In sum, in my view of this proceeding in its present context, we are dealing with a motion for summary judgment in which it is admitted that the 1970 census figures are not available. It is also admitted that the Director of the Census has decided that he cannot make an accurate determination of the facts he is directed to make by the Act until the 1970 figures are available and necessarily that he has not made such determination. All this supports the conclusion that plaintiffs’ attack on section 4 at the present time is premature. The essential facts are not presently known, the required determinations have not been made, and the requirements of the statute that the matter be determined on the basis of the stated facts as of November 1, 1968, and not on some other basis, cannot be evaded by substituting for the required facts conclusory allegations which all know have no true basis in fact. I would accordingly grant the *1014motions of the Attorney General and of the New York City Board of Elections for summary judgment and dismiss Counts 7 and 8 for failure to state a claim upon which relief can be granted. See South Carolina v. Katzenbach, 383 U.S. 301, 308, 317, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Davis v. Ichord, U.S.App.D.C. (No. 23426, Aug. 20, 1970) (Leventhal, J., concurring).10 This suggested disposition of this phase of the case would, of course, not preclude any of the plaintiffs or others from bringing a suit after the Director of the Census has made the statutory determinations.
Another question is presented by that portion of the majority opinion which suggests because there is a substantial likelihood that Title I may apply to New York County that we should accordingly decide now upon its constitutionality. However, in view of our disposition of section 201, and since sections 4 and 5 raise difficult constitutional questions even beyond South Carolina v. Katzenbach, supra, the possibility that Title I will eventually become applicable to New York County does not justify us in undertaking to decide these issues at this time.
Title III — The 18-year-old Voting Provision
In addition to the reasons announced in the majority opinion in my view there are additional reasons for holding that the 18-year-old voting provision con-tamed in section 302 of the 1970 Amendments is within the power of Congress conferred by the Fourteenth Amendment. It was argued before this court that the framers of the Fourteenth Amendment did not intend it to apply to voter qualifications and that the states,11 under our constitutional system, would retain the exclusive power in that area. In support of this contention, plaintiffs' referred to remarks made in the congressional debates which preceded the passage of the Fourteenth Amendment. The most emphatic statement to this effect was that made by Representative Bingham of Ohio, a member of the Joint Committee on Reconstruction and the author of section 1 of the Fourteenth Amendment:
Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to'deny any freeman the equal protection of the laws or to abridge the privileges and immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.
The second section excludes the conclusion that by the first section suffrage is subjected to congressional law * * *12
*1015Bingham also remarked:
To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.13
Senator Howard, who was also a member of the Joint Committee, also indicated very strongly that section 1 did “not give to either of these classes [whites or blacks] the right of voting.” He remarked,
The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depotism [sic.].14
He later remarked:
The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. * * *
The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.15
However, the congressional debates also reflected a number of statements by other members of Congress who placed a different interpretation upon the language used in the Amendment. *1016These are gathered in an article by Professor Van Alstyne.16 The remark with the greatest force and weight to this effect was that made by Representative Rogers of New Jersey, also a member of the Joint Committee on Reconstruction:
[The proposed Amendment] provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege. I hold if [the proposed Amendment] ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody under this term of privileges and immunities.17
The foregoing quotations must be read in light of the fact that there appear to have been two bodies of thought prevalent in Congress at the time concerning congressional power to regulate suffrage. One group were of the opinion that Congress had some power over suffrage qualifications by Art. IV, § 418 guaranteeing a republican form of government; by Art. I, § 4, cl. I19 giving Congress power to “make or alter” state regulations as to “the times * * * and manner of holding elections for Senators and Representatives”; and by the provision of Art. I, § 2, cl. 120 which recites that the House of Representatives shall be composed of members “chosen * * * by the people of the several states.” (Emphasis added.) Members of this group who contended that the Fourteenth Amendment did not confer power on Congress to regulate suffrage were not necessarily contending that Congress was to be powerless in the area.21 The other group did not consider that the Constitution conferred any power in Congress to deal with voter qualifications. Doubtlessly, this latter group relied heavily upon the provisions of Art. I, § 2, cl. 122 that for the House of Representatives “the electors in each State shall have the Qualifications *1017requisite for Electors of the most numerous Branch of the State Legislature.” In effect this allowed the state legislatures to set voter qualifications. Some of this group argued that the Fourteenth Amendment contained the potential to confer powers over voter qualifications upon Congress.23
The passage of the Amendment thus did not find all parties in agreement on the precise effect it had on the power of the states to regulate suffrage. Nor was the debate ended by the submission of the Amendment to the states and its subsequent ratification.
During the debates which preceded the passage of the Fifteenth Amendment, it was argued by Senator Doolittle of Wisconsin that such Amendment was necessary because the Fourteenth had left state control over suffrage unimpaired.24 Senator Sumner of Massachusetts, on the other hand, argued that the Fifteenth was unnecessary because the guarantees it contained had already been effected by the Fourteenth Amendment.25 Representative Stevens in 1868 also expressed a similar view although he had not done so explicitly in the congressional debates on the Fourteenth Amendment.26
It thus appears that the legislative history of the Fourteenth Amendment is inconclusive and cannot be relied upon to fully support either contention or to furnish a dependable basis for interpreting the Amendment. See Afroyim v. Rusk, 387 U.S. 253, 267, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Compare Adamson v. California, 332 U.S. 46, 68-123, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Black, J., dissenting) and Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U.Chi.L.Rev. 1 (1954) with Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L. Rev. 5 (1949). In the Congress itself there were conflicting opinions as to the effect of what they were doing by the language of the Amendment as adopted and these variable opinions have persisted to the present day. This requires us to rely heavily upon the ordinary meaning of the words used.
This is no less true of the question of the proper age for voting than it is for *1018voting in general. The argument has been made here and in Congress that because section 2 of the Fourteenth Amendment prescribed a penalty for states which denied the vote to persons over twenty-one, that this precluded a finding that it was a denial of equal protection to deny the vote to persons under twenty-one.27
However,' as the majority points out, section 2 of the Fourteenth Amendment provides a specific remedy for a specific type of abuse. It does not purport otherwise to establish the age for voting. In addition, members of Congress had differing views concerning the reason that, twenty-one was considered an appropriate voting age. Representative Schenck of Ohio, responding to a suggestion that representation in Congress should be based on population, suggested that it should be based on suffrage, and that suffrage should be limited to male citizens over twenty-one years of age. He stated his reason for choosing twenty-one:
I take twenty-one years of age because, I believe, in every State in the Union that has always been and is now the line between the adult and the minor.28
But the line between adult and minor was, in his view, a line to be drawn pragmatically:
[I]n every country, the age of majority, not being a thing which is settled by natural right, is to be settled according to the best exercise of discrimination on the subject, and the best consideration that is to be given to questions of expediency by those who framed the institutions of that Government.29
Senator Poland of Vermont considered the question of the voting age to be capable of differing answers:
[W]e all know that many females are far better qualified to vote intelligently and wisely than many men who are allowed to vote; and the same is true of many males under twenty one * *. The truth is that the whole system of suffrage in any republican State is wholly artificial, founded upon its own ideas of the number and class of persons who will represent the wishes and interests of the whole people.30
Others during the same era attached more significance to the age limit. During the debates concerning the qualifications for suffrage in the District of Columbia, Senator Morrill of Maine remarked :
“Manhood suffrage” to define it, is simply to state the conditions of manhood, the state of an adult male grown to full size and strength * * *. In most nations, for purposes of war, it is a male person between the ages of eighteen and forty five years. Among the civilians it was from fourteen to twenty-five. * * *
The fatal objection to “manhood suffrage” is that the right is based on physical development, like arms bearing, while the act [of voting] itself necessarily implies intelligence, discretion, intellectual development. ******
The American principle favors the right of suffrage for the male citizen of full age, supposed to be based upon the law and usage that at this age he becomes free of the tutelage of family and is free to manage his own affairs.31
*1019In a similar vein, Senator Bayard of Delaware remarked during the debates over the Fifteenth Amendment:
[T]he age is fixed arbitrarily at twenty-one, founded no doubt upon the principle that the human passions develop more rapidly than the intellectual and the reflecting powers, and that the control over the passions is not sufficient under the age of twenty-one to trust men with the exercise of the franchise. The result would be personal conflicts and riots at elections, becoming so general that to avoid anarchy the people would accept despotism. There are boys of eighteen who might be safely entrusted with suffrage, but no tribunal could be possibly organized to determine fairly on individual exceptions. * * * To use the slang of the day, the community has not yet been educated up to the idea because some boys of eighteen may have more intellect and self-control than the average man of forty, and be quite competent to exercise the franchise of voting, that therefore all boys of eighteen ought to enjoy the franchise. But in this age of progress * * * no prediction can be made as to when this question will seriously arise.32
Other quotations, on both sides of the question, can be found.33 When they are totaled, however, they do not definitively answer the question of the proper age for voting any more than other remarks indicate conclusively whether or not the Fourteenth Amendment was intended to apply to voting at all.
The usual caveats concerning the use of legislative history in statutory interpretation34 apply with similar force to attempts to interpret constitutional amendments. However, there is a difference in that the views of the ratifying states as to the meaning of the Amendment may not correspond to the views of the people who drafted and debated the provision in Congress and because their approval is necessary to its adoption their intention is also material.35 The states would be inclined to make independent judgments concerning the meaning of the Amendment based on the language of the Amendment itself. The current meaning of the Amendment must be determined, therefore, from the words themselves, their origin and “line of growth”36 as much as, if not more than, from the intentions of the men who wrote them as those intentions are revealed in congressional debates.
Not only is there no showing, therefore, that the Fourteenth Amendment precludes a congressional enactment setting the voting age at eighteen, but there is abundant evidence that Congress had the power to interpret that Amendment for itself and to pass legislation in keeping with its interpretation.37 This it has done here and it is my opinion that in doing so it has acted within its eon*1020stitutional power as presently interpreted by the Supreme Court.38
APPENDICES TO THE OPINION OF THE COURT
Appendix A
Provisions of the Voting Rights Act Amendments of 1970
SEC. 2. The Voting Rights Act of 1965 (79 Stat. 437; 42 U.S.C. 1973 et seq.) is amended by inserting therein, immediately after the first section thereof, the following title caption:
“TITLE I — VOTING RIGHTS”
[Sections 3, 4 and 5 of the 1970 Amendments affect sections 4(a), 4(b), and 5 of the Voting Rights Act of 1965 (79 Stat. 438-39; 42 U.S.C. 1973b & -c). The changes are marked in the full quotation of sections 4(a), 4(b), and 5 as amended in Appendix B infra,.]
SEC. 6. The Voting Rights Act of 1965 * * * is amended by adding at the end thereof the following new titles:
“TITLE II — SUPPLEMENTAL PROVISIONS
“Application of Prohibition to Other States
“SEC. 201. (a) Prior to August 6, 1975, no citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State as to which the provisions of section 4 (a) of this Act are not in effect by reason of determinations made under section 4(b) of this Act.
“(b) As used in this section, the term ‘test or device’ means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.
“Residence Requirements for Voting
“SEC. 202. (a) The Congress hereby finds that the imposition and application of the durational residency requirement as a precondition to voting for the offices of President and Vice President, and the lack of sufficient opportunities for absentee registration and absentee balloting in presidential elections—
“(1) denies or abridges the inherent constitutional right of citizens to vote for their President and Vice President ;
“(2) denies or abridges the inherent constitutional right of citizens to enjoy their free movement across State lines;
“(3) denies or abridges the privileges and immunities guaranteed to the citizens of each State under article IV, section 2, clause 1, of the Constitution ;
“(4) in some instances has the impermissible purpose or effect of denying citizens the right to vote for such officers because of the way they may vote;
“(5) has the effect of denying to citizens the equality of civil rights, and due process and equal protection of the laws that are guaranteed to to them under the fourteenth amendment ; and
“(6) does not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections.
“(b) Upon the basis of these findings, Congress declares that in order to secure and protect the above-stated rights of citizens under the Constitution, to en*1021able citizens to better obtain the enjoyment of such rights, and to enforce the guarantees of the fourteenth amendment, it is necessary (1) to completely abolish the durational residency requirement as a precondition to voting for President and Vice President, and (2) to establish nationwide, uniform standards relative to absentee registration and absentee balloting in presidential elections.
“(c) No citizen of the United States who is otherwise qualified to vote in any election for President and Vice President shall be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to comply with any durational residency requirement of such State or political subdivision; nor shall any citizen of the United States be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to be physically present in such State or political subdivision at the time of such election, if such citizen shall have complied with the requirements prescribed by the law of such State or political subdivision providing for the easting of absentee ballots in such election.
“(d) For the purposes of this section, each State shall provide by law for the registration or other means of qualification of all duly qualified residents of such State who apply, not later than thirty days immediately prior to any presidential election for registration or qualification to vote for the choice of electors for President and Vice President or for President and Vice President in such election; and each State shall provide by law for the casting of absentee ballots for the choice of electors for President and Vice President, or for President and Vice President, by all duly qualified residents of such State who may be absent from their election district or unit in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election and have returned such ballots to the appropriate election official of such State not later than the time of closing of the polls in such State on the day of such election.
“(e) If any citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any election for President and Vice President has begun residence in such State or political subdivision after the thirtieth day next preceding such election and, for that reason, does not satisfy the registration requirements of such State or political subdivision he shall be allowed to vote for the choice of electors for President and Vice President, or for President and Vice President, in such election, (1) in person in the State or political subdivision in which he resided immediately prior to his removal if he had satisfied, as of the date of his change of residence, the requirements to vote in that State or political subdivision, or (2) by absentee ballot in the State or political subdivision in which he resided immediately prior to his removal if he satisfies, but for his nonresident status and the reason for his absence, the requirements for absentee voting in that State or political subdivision.
“(f) No citizen of the United States who is otherwise qualified to vote by absentee ballot in any State or political subdivision in any election for President and Vice President shall be denied the right to vote for the choice of electors for President and Vice President, or for President and Vice President, in such election because of any requirement of registration that does not include a provision for absentee registration.
“(g) Nothing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein.
“(h) The term ‘State’ as used in this section includes each of the several States and the District of Columbia.
*1022“(i) The provisions of Section 11(c) shall apply to false registration, and other fraudulent acts and conspiracies, committed under this section.
“Judicial Relief
“SEC. 203. Whenever the Attorney General has reason to believe that a State or political subdivision (a) has enacted or is seeking to administer any test or device as a prerequisite to voting in violation of the prohibition contained in section 201, or (b) undertakes to deny the right to vote in any election in violation of section 202, he may institute for the United States, or in the name of the United States, an action in a district court of the United States, in accordance with sections 1391 through 1393 of title 28, United States Code, for a restraining order, a preliminary or permanent injunction, or such other order as he deems appropriate. An action under this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2282 of title 28 of the United States Code and any appeal shall be to the Supreme Court.
“Penalty
“SEC. 204. Whoever shall deprive or attempt to deprive any person of any right secured by section 201 or 202 of this title shall be fined not more than $5,000, or imprisoned not more than five years, or both.
“Separability
“SEC. 205. If any provision of this Act or the application of any provision thereof to any person or circumstance is judicially determined to be invalid, the remainder of this Act or the application of such provision to other persons or circumstances shall not be affected by such determination.
“TITLE III — REDUCING VOTING AGE TO EIGHTEEN IN FEDERAL, STATE, AND LOCAL ELECTIONS
“Declaration and Findings
“SEC. 301. (a) The Congress finds and declares that the imposition and application of the requirement that a citizen be twenty-one years of age as a precondition to voting in any primary or in any election—
“(1) denies and abridges the inherent constitutional rights of citizens eighteen years of age but not yet twenty-one years of age to vote — a particularly unfair treatment of such citizens in view of the national defense responsibilities imposed upon such citizens;
“(2) has the effect of denying to citizens eighteen years of age but not yet twenty-one years of age the due process and equal protection of the laws that are guaranteed to them under the fourteenth amendment of the Constitution; and
“(3) does not bear a reasonable relationship to any compelling state interest.
“(b) In order to secure the constitutional rights set forth in subsection (a), the Congress declares that it is necessary to prohibit the denial of the right to vote to citizens of the United States eighteen years of age or over.
“Prohibition
“SEC. 302. Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older.
“Enforcement
“SEC. 303. (a) (1) In the exercise of the powers of the Congress under the necessary and proper clause of section 8, article I of the Constitution, and section 5 of the fourteenth amendment of the Constitution, the Attorney General is authorized and directed to institute in the name of the United States such actions against States or political subdivisions, including actions for injunctive relief, as he may determine to be neces*1023sary to implement the purposes of this title.
“(2) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this title, which shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing and determination thereof, and to cause the case to be in every way expedited.
“(b) Whoever shall deny or attempt to deny any person of any right secured by this title shall be fined not more than $5,000 or imprisoned not more than five years, or both.
“Definition
“SEC. 304. As used in this title the term ‘State’ includes the District of Columbia.
“Effective Date
“SEC. 305. The provisions of title III shall take effect with respect to any primary or election held on or after January 1, 1971.”
Appendix B
Sections 4(a), 4(b), and 5 of the Voting Rights Act of 1965 as amended by Sections 3, 4, and 5 of the 1970 Amendments
[Deleted material is in brackets; new material is italicized.]
SEC. 4. [42 U.S.C. § 1973b]. (a) To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device in any State with respect to which the determinations have been made under subsection (b) or in any political subdivision with respect to which such determinations have been made as a separate unit, unless the United States District Court for the District of Columbia in an action for a declaratory judgment brought by such State or subdivision against the United States has determined that no such test or device has been used during the [five years] ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color: Provided, That no such declaratory judgment shall issue with respect to any plaintiff for a period of [five years] ten years after the entry of a final judgment of any court of the United States, other than the denial of a declaratory judgment under this section, whether entered prior to or after the enactment of this subchapter, determining that denials or abridgements of the right to vote on account of race or color through the use of such tests or devices have occurred anywhere in the territory of such plaintiff.
An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.
If the Attorney General determines that he has no reason to believe that any such test or device has been used during the [five years] ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.
(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained *1024on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964. On and after August 6, 1970, in addition to any State or political subdivision of a State determined to be subject to subsection (a) pursuant to the previous sentence, the provisions of subsection (a) shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968.
A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.
[Subsections 4(c) to (e) were unchanged by the 1970 Amendments.]
SEC. 5 [42 U.S.C. § 1973c]. Whenever a State or political subdivision with respect to which the prohibitions set forth in section [4] (a) based upon determinations made under the first sentence of section [4] (b) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section [4] (a) based upon determinations made under the second sentence of section [4] (b) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.
. The determinations made in accordance with this section indicate the states or subdivisions which are to be subject to § 4(a) (suspending literacy tests), § 5 (re*1012quiring prior approval of changes in voting laws) and § 6 (relating to federal examiners) of the Act. Section 6 is not under attack in the instant case and plaintiffs’ challenge to § 5 has been dismissed because it is premature. As used herein, the term “trigger provisions” refers to § 4(a) and (b) because they together operate to suspend the operation of literacy tests in certain states and political subdivisions.
. See majority opinion, footnote 14.
. Id.
. To wait until then is not to delay. Delay would only occur if he failed to make his necessary decision within a reasonable time after the necessary data was available.
. This would be the substantial equivalent of requiring a court to decide a case before all the evidence is in.
. Sec. 4(b) of the Voting Rights Act of 1965, 79 Stat. 438, 42 U.S.C. § 1973b (b) (Supp. V, 1969), reads in part:
A determination or certification of the Attorney General or of the Director of the Census under this section or under section 1973d or 1973k of this title shall not be reviewable in any court and shall be effective upon publication in the Federal Register.
The language of the statute is sufficiently definite to preclude the operation of the general presumption of reviewability. See Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Calderon v. Tobin, 88 U.S.App.D.C. 134, 187 F.2d 514, cert. denied, 341 U.S. 935, 71 S.Ct. 854, 95 L.Ed. 1363 (1951). See generally, 4 K. Davis, Administrative Law Treatise § 28.15 (1958).
. See note 6 supra.
. Id.
. I differ with the statement in the majority ' opinion which infers that “accuracy” of the determination is not essential. See note 16 of the majority opinion.
. The issues involved in Title I were almost totally ignored in both the briefs and at oral argument. Nevertheless, with respect to § 4(a), I agree with the majority opinion that there is probably a case or controversy in the narrow sense and thus rest my disagreement on what I view to be a proper exercise of discretion by this court.
. It is impliedly admitted by all the arguments that the strict language of the Fourteenth Amendment is broad enough to cover voter qualifications. Thus, the only means of escaping such interpretation is to prove a controlling contrary intention by those who caused it to be adopted, or to rely upon the effect of other provisions of the Constitution upon the provisions of the Amendment, or a combination of both.
. Cong.Globe, 39th Cong., 1st Sess. 2542 (1866). A number of other references to the congressional debates to the same general effect are set forth in the dissenting opinion of Mr. Justice Harlan in Reynolds v. Sims, 377 U.S. 533, 595-602, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). See also Van Alstyne, The Fourteenth Amendment, The “Right” to Vote, and the Understanding of the Thirty-ninth Congress, 1965 Sup.Ct.Rev. 33.
*1015Eep. Bingham did, however, recognize the right of the people of each state to have a republican form of government. Cong.Globe 39th Cong., 1st Sess. 2542 (1866). Others contended that the Constitution conferred upon Congress the power to regulate suffrage so as to prevent widespread disenfranchisement. For example, Eep. Lawrence of Ohio, in discussing the Civil Eights Bill, stated:
A State which denies to half its citizens, not only all political, but their essential civil rights, recognized and confirmed by the national Constitution and described in this bill, has ceased to be republican in form, and the Constitution has made it the duty of Congress to “guarantee” such form of government.
This it may do by law in this form. Cong.Globe, 39th Cong., 1st Sess. 1836-37 (1866). Eep. Eliot of Massachusetts, discussing the preeusor to § 2 of the Fourteenth Amendment, stated:
[W]hile the Constitution now says that Congress shall guaranty to every State a republican form of government, this amendment as reported by the committee admits by implication that, although a State may so legislate as to exclude these multitudes of men, not on account of race or color, but on account of property, yet, nevertheless, she would have a republican form of government, and that Congress will not and ought not to interfere.
Id. at 407. See also Van Alstyne, supra at 49-53, containing the views of Farnsworth of Illinois, Shellabarger of Ohio, Cook of Illinois and Julian of Indiana. The Supreme Court held that the question of what constitutes a republican form of government is a political question for the Congress alone to answer. Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849). See also Baker v. Carr, 369 U.S. 186, 209-232, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80, 50 S.Ct. 228, 74 L.Ed. 710 (1930); Mountain Timber Co. v. Washington, 243 U.S. 219, 234, 37 S.Ct. 260, 61 L.Ed. 685 (1917).
. Cong.Globe, 39th Cong., 1st Sess. 2542 (1866).
. Id. at 2766.
. Id. It is clear that these remarks of Senator Howard were addressed to the “privileges and immunities” portion of section 1 and to section 2 and not to the equal protection provision.
. See note 12 supra.
. Cong.Globe, 39th Cong., 1st Sess. 2538 (1866). Others who voiced similar sentiments included Rep. Boyer of Pennsylvania, id. at 2467, Rep. Phelps of Maryland, id. at 2398, and Rep. Niblack of Indiana, id. at 2465.
. U.S.Const. Art. IV, § 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
. U.S.Const. art. I, § 4, cl. 1:
The Times, Places and Manner of holding Elections for Senators and Repsentatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
In Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171, 22 L.Ed. 627 (1875), Chief Justice Waite recognized the possible role of Congress when he commented on Art. I, § 4 of the Constitution :
It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the State laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the State in this particular is certainly supreme until Congress acts. (Emphasis added).
. U.S.Const. art. I, § 2, cl. 1:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
. See note 12 supra.
. Id.
. See note 17 supra. The assertion of these numerous differing constructions which were prevalent in Congress contemporaneously with the formulation of the amendment should have alerted those who asserted a different construction to the necessity of including a specific exemption for elections if they desired to exempt elections from the normal meaning of the words used.
. Cong.Globe, 40th Cong., 3d Sess., App. 152 (1869).
. Cong.Globe, 40th Cong., 3d Sess. 1008 (1869).
. In support of a bill, grounded in § 1 of the Fourteenth Amendment, to prohibit the states from denying the right to vote on account of race, Rep. Stevens remarked :
Since the adoption of the fourteenth amendment * * * I have no doubt of our full power to regulate the elective franchise, so far as it regards the whole nation, in every State of the Union, which, when tried, I hope, will be so formed as to be beneficial to the nation, just to every citizen, and carry out the great designs of the framers of the Government, according to their views expressed in the Declaration of Independence. * * *
The fourteenth amendment, now so happily adopted, settles the whole question and places every American citizen on a perfect equality so far as merely national rights and questions are concerned. * * *
If by the amended Constitution every American citizen is entitled to equal privileges with every other American citizen, and if every American citizen in any of the States should be found entitled to impartial and universal suffrage with every other American in any State, then it follows as an inevitable conclusion that suffrage, throughout this nation is impartial and universal so far as every human being, without regard to race or color, shall be found concerned, and so far as it affects the whole nation.
Cong.Globe, 40th Cong., 2d Sess. 1966-67 (1868).
. See statement and testimony of Dean Louis Poliak, Yale Law School. Hearings on S.J. Res. 7 et al., Before the Sub-comm. on Constitutional Amendments of the Senate Judiciary Committee, 91st Cong., 2d Sess. 249-73 (Comm.Print 1970) ; letters from Professors Bickel, et al. and Casper, 116 Cong.Rec. H5648-49 (daily ed. June 17, 1970).
. Cong.Globe, 39th Cong., 1st Sess., App. 298 (1866).
. Id.
. Id. at 2962.
. Cong.Globe, 39th Cong., 2d Sess. 40 (1866).
. Cong.Globe, 40th Cong., 3d Sess., App. 168 (1869).
. See, e. g., Cong.Globe, 39th Cong., 2d Sess. 43 (1866) (Remarks of Senator Willy of West Virginia).
. See A. Biekel, Politics and the Warren Court 212 (1965). See generally, Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527 (1947).
. This seems to have been recognized by the drafters of the Fourteenth Amendment themselves. See the remarks of Rep. Stevens, Cong.Globe, 39th Cong., 1st Sess. 2459 (1866).
. Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (1914) (per Holmes, J.j. See also Harper v. Virginia State Board of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966) (“Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”).
. The results might be subject to different treatment in the courts, depending upon the provision of the Constitution under which Congress acts; but the necessity for a member of Congress, or Congress itself, to interpret the Constitution occurs almost daily. That duty arises with respect to every piece of legislation. See generally D. Morgan, Congress and the Constitution (1966).
. X see no .necessity for discussing the extreme suggestion that Congress might prohibit states from denying the vote to those over 12, over 5 and so forth or that Congress could decide that age is an impermissible basis of classification for voting purposes. See majority opinion at pp. 1010-1011. Rebutting such arguments emphsizes them beyond their merits.