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to the constitution of Oklahoma as a whole is likewise invalid. The unconstitutional portion of the amendment is not separable from the remainder. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 564-565; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 395.
The first question certified by the Circuit Court of Appeals should be answered in the negative; the second question in the affirmative.
Mr. Moorfield Storey for the National Association for the Advancement of Colored People:
All discriminations respecting the right to vote on account of color are unconstitutional.
Whether the Oklahoma amendment constitutes such a discrimination is to be determined by its purpose and effect, and not by its phraseology alone.
The undoubted purpose and effect of the amendment is to discriminate against colored voters. Anderson v. Myers, 182 Fed. Rep. 223; Bailey v. Alabama, 219 U. S. 219; Brimmer v. Rebman, 138 U. S. 78; Collins v. New Hampshire, 171 U. S. 30; Chy Lung v. Freeman, 92 U. S. 275; Galveston &c. Ry. v. Texas, 210 U. S. 217; Giles v. Harris, 189 U. S. 475; Giles v. Teasley, 193 U. S. 146; Graver v. Faurot, 162 U. S. 435; Hannibal & St. Jo. R. R. v. Husen, 95 U. S. 465; Henderson v. Mayor of New York, 92 U. S. 259; Lochner v. New York, 198 U. S. 45; Maynard v. Hecht, 151 U. S. 324; Minnesota v. Barber, 136 U. S. 313; Mobile v. Watson, 116 U. S. 289; New Hampshire v. Louisiana, 108 U. S. 76; People v. Albertson, 55 N. Y. 50; People v. Compagnie Générale, 107 U. S. 59; Postal Tel.Cable v. Taylor, 192 U. S. 64; Schollenberger v. Pennsylvania, 171 U. S. 1; Scott v. Donald, 165 U. S. 58; Smith v. St. Louis & So. W. Ry., 181 U. S. 248; State v. Jones, 66 Ohio St. 453; Strauder v. West Virginia, 100 U. S. 303; Voight v. Wright, 141 U. S. 62; Williams v. Mississippi, 170 U. S. 213; Ex parte Yarbrough, 110 U. S. 651.
Mr. J. H. Adriaans filed a brief as amicus curiæ.
Mr. John H. Burford and Mr. John Embry filed a brief as amici curiæ.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
This case is before us on a certificate drawn by the court below as the basis of two questions which are submitted for our solution in order to enable the court correctly to decide issues in a case which it has under consideration. Those issues arose from an indictment and conviction of certain election officers of the State of Oklahoma (the plaintiffs in error) of the crime of having conspired unlawfully, wilfully and fraudulently to deprive certain negro citizens, on account of their race and color, of a right to vote at a general election held in that State in 1910, they being entitled to vote under the state law and which right was secured to them by the Fifteenth Amendment to the Constitution of the United States. The prosecution was directly concerned with § 5508, Rev. Stat., now § 19 of the Penal Code which is as follows:
"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States."
We concentrate and state from the certificate only matters which we deem essential to dispose of the questions asked.
Suffrage in Oklahoma was regulated by § 1, Article III of the Constitution under which the State was admitted into the Union. Shortly after the admission there was submitted an amendment to the Constitution making a radical change in that article which was adopted prior to November 8, 1910. At an election for members of Congress which followed the adoption of this Amendment certain election officers in enforcing its provisions refused to allow certain negro citizens to vote who were clearly entitled to vote under the provision of the Constitution under which the State was admitted, that is, before the amendment, and who, it is equally clear, were not entitled to vote under the provision of the suffrage amendment if that amendment governed. The persons so excluded based their claim of right to vote upon the original Constitution and upon the assertion that the suffrage amendment was void because in conflict with the prohibitions of the Fifteenth Amendment and therefore afforded no basis for denying them the right guaranteed and protected by that Amendment. And upon the assumption that this claim was justified and that the election officers had violated the Fifteenth Amendment in denying the right to vote, this prosecution, as we have said, was commenced. At the trial the court instructed that by the Fifteenth Amendment the States were prohibited from discriminating as to suffrage because of race, color, or previous condition of servitude and that Congress in pursuance of the authority which was conferred upon it by the very terms of the Amendment to enforce its provisions had enacted the following (Rev. Stat., § 2004):
"All citizens of the United States who are otherwise qualified by law to vote at any election by the people of any State, Territory, district,
other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding."
It then instructed as follows:
"The State amendment which imposes the test of reading and writing any section of the State constitution as a condition to voting to persons not on or prior to January 1, 1866, entitled to vote under some form of government, or then resident in some foreign nation, or a lineal descendant of such person, is not valid, but you may consider it in so far as it was in good faith relied and acted upon by the defendants in ascertaining their intent and motive. If you believe from the evidence that the defendants formed a common design and coöperated in denying the colored voters of Union Township precinct, or any of them, entitled to vote, the privilege of voting, but this was due to a mistaken belief sincerely entertained by the defendants as to the qualifications of the voters—that is, if the motive actuating the defendants was honest, and they simply erred in the conception of their duty-then the criminal intent requisite to their guilt is wanting and they cannot be convicted. On the other hand, if they knew or believed these colored persons were entitled to vote, and their purpose was to unfairly and fraudulently deny the right of suffrage to them, or any of them entitled thereto, on account of their race and color, then their purpose was a corrupt one, and they cannot be shielded by their official positions."
The questions which the court below asks are these:
"1. Was the amendment to the constitution of Oklahoma, heretofore set forth, valid?
"2. Was that amendment void in so far as it attempted to debar from the right or privilege of voting for a qualified
candidate for a Member of Congress in Oklahoma, unless they were able to read and write any section of the constitution of Oklahoma, negro citizens of the United States who were otherwise qualified to vote for a qualified candidate for a Member of Congress in that State, but who were not, and none of whose lineal ancestors was, entitled to vote under any form of government on January 1, 1866, or at any time prior thereto, because they were then slaves?"
As these questions obviously relate to the provisions concerning suffrage in the original constitution and the amendment to those provisions which forms the basis of the controversy, we state the text of both. The original clause so far as material was this:
"The qualified electors of the State shall be male citizens of the United States, male citizens of the State, and male persons of Indian descent native of the United States, who are over the age of twenty-one years, who have resided in the State one year, in the county six months, and in the election precinct thirty days, next preceding the election at which any such elector offers to vote."
And this is the amendment:
"No person shall be registered as an elector of this State or be allowed to vote in any election herein, unless he be able to read and write any section of the constitution of the State of Oklahoma; but no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person, shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration be required. Should registration be dispensed with, the provisions of this section shall be enforced by the