Legal Research on March 25th Executive Session 1

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19

is to speak purely and simply of racial balance and racial quotas.

The remises of the results test is that any disparity between minority

popu ation and minority representation evidences discrimination. As

gieiupreune Court observed in the 1980 decision of City of Mobile v.
0 en:

The theory of the dissenting opinion—proposing 8. results test—appears to be
that every political group or at least every such group that is in the minority
has a Federal constitutional right to elect candidates in proportion to its
numbers. The Equal Protection Clause does not require proportional representa-
tion as an imperative of political organization.

In Mobile, the court summarily rejected the notion that the results
test was not directed toward proportional representation. The court
observed:

The dissenting opinion seeks to disclaim the proportional representation de-
scription of its theory by suggesting that a claim of vote dilution may require, in
addition to proof of electoral defeat, some evidence of historical and social factors
indicating that the group in question is without political influence. Putting to
the side the evident fact that these gauzy sociological considerations have no
constitutional basis. it remains far from certain that they could, in any principled
manner. exclude the claims of any political group that happens for whatever rea-
son to elect fewer of its candidates than arithmetic indicates it might. The limits
are bound to prove illusory.

It is not simply the Supreme Court that has affixed the label of
proportional representation to the proposed results test. Consrder a
few other observations. The House report itself on this measure
states:

The fact that members 01' a racial or language minority group have not been

elected in numbers equal to the group’s proportion of the population would be
highly relevant under the proposed amendment.

The Attorney General of the United States has testified:

Under the new test, any voting law or procedure in the country which pro-
duces election results that fail to mirror the pOpuIation’s make-up in a partic-
ular community would be vulnerable to legal challenge. If carried to its logical
conclusion, proportional representation or quotas would be the end result.

The former Attorney General of the United States, Griflin Bell, has
written:

To overrule the Mobile decision by statute would be an extremely dangerous
course of action under our form of government.

The Assistant Attorney General for Civil Rights has testified:

A very real prospect is that this amendment could well lead us to the use of
quotas in the electoral process. We are deeply concerned that this language will be
construed to require government units to present compelling justification for any
voting system which does not lead to proportional representation.

The distinguished constitutional law professor, William Van Al-
styne, has written:

The proposed amendment must invariably operate to create racially defined
wards throughout much of the nation and to compel the worst tendencies toward
race-based allegiances and divisions.

Joseph Bishop of the Yale Law School has written:

It seems to me that the intent of the amendment is to ensure that blacks or
members of other minority groups are ensured proportional representation. 11'. for
example, blacks are 20 percent of a State, Hispanics 15 percent, and Indians 2 per-
cent, then at least 20 percent of the members of the legislature must be black, 15
percent Hispanic, and 2 percent Indian.

20

Henry Abraham, chairman of the Department of Government at the
University of Virginia, recently testified:

Only those who live in a dream world can fail to perceive the basic thrust and
purpose and inevitable result of the new section 2; it is to establish a pattern of
proportional representation. now based upon race, perhaps at a later time upon
gender or religion or nationality.

John Bunzel of the Hoover Institution, former president in the Uni-
vers1ty of California system, has testified:

Equal access does not mean equal results. Under the amendment, proportional
results have become the test of discrimination.

Mr. Chairman, I can go on and on with constitutional scholars, politi-
cal scientists, litigators, and the media who have quickly and correctly
identified the proposed results test for what it is: an entirely and genu-
inely radical efi'ort to substitute for the notion of equal opportunity in
the electoral process the notion of equal outcome. I use the entirely over-
worked term radical as precisely as I can in this respect. Even the
Washington Post, which has carried on a ceaseless cam aign for the
House bill in both its editorial and news pages, remar ed after the
Supreme Court’s decision in M obile :

The logical terminal point of those challenges to Mobile is that election districts
must be drawn to give proportional representation to minorities.

Apart from the fact that the results test imports into the Voting
Rights Act a theory of discrimination that is inconsistent with the
traditional understanding of discrimination, the public policy impact
of the new test would be far reaching, perhaps as far reaching as any
legislation ever passed by this body. Under the results test—and I em-
phasize again that this would be true under either the House version
or the marginally altered Dole version which I have seen—Federal
courts would be obliged to dismantle countless systems of State and
local government that are not designed to achieve proportional repre-
sentation. This is precisely what the plaintiffs attempted to secure in
the Mobile case and, in fact, were successful in achieving in the lower
Federal courts. Despite the fact that there was no proof of discrimina-
tory purpose in the establishment of the at-large electoral system in
Mobile and despite the fact that there were clear and legitimate non-
discriminatory purposes to such a system, the lower court in Mobile
ordered a total revampmcnt of the city’s municipal system because it
had not achieved proportional representation.

Let there be no mistake about it in this room. The at-large system
of government is the principal immediate target of proponents of the
results test. Despite repeated challenges to the propriety of at-large
systems, the Supreme Court has consistently rejected the notion that
the at—large system is inherently discriminatory toward minorities.
The court in Mobile further observed that literally thousands of mu-
nicipalities throughout the Nation, approximately two-thirds of the
18,000 in the country, have adopted an at-large system.

To establish a results test in section 2 would be to place at-large sys-
tems in constitutional jeopardy throughout the Nation. particularly if
jurisdictions with such electoral systems contained significant numbers
of minorities and lacked proportional representation on their elected
representative councils or commissions. As observed in the subcommit-

21

tee report and by the Assistant Attorney General for Civil Ri hts in
his testimony, a few of the most vulnerable Cities under the resu ts test
which would be affected if the House bill is enacted would include
Anchorage, Alaska; Baltimore, Md.; Birmingham, Ala.; Boston,
Mass; Cincinnati, Ohio; Dover, Del.; Fort Lauderdale, Fla.; New
York City, N.Y.: Norfolk, Va.; Kansas City, Kans; Pittsburgh, Pa.;;
San Diego, Calif.; Savannah, Ga.; and Wilmington, Del. These are
only a few of the most obvious examples of vulnerable communities;
they represent only the tip of the iceberg.

Under the results test, each of the systems of self-government
adopted by these and other communities would be subject to judicial
scrutiny by the Federal courts. (To the extent that electoral results
become the focus on discrimination analysis, and indeed define the
existence or nonexistence of discrimination, it is difficult to conceive
how proportional representation by race can avoid being established
in the law as the standard for identifying discrimination and, equally
important, as the standard for ascertaining the effectiveness of judicial
civil rights remedies.

Nor is it only the at-large electoral system which is the object of the
results test. In addition. the change in section 2 will preclude any
meaningful annexation b municipalities—for whatever reason, cer-
tainly valid reasons inclu ed—Government. consolidations, county con-
solidations, or other similar reorganizations in areas having minority
populations.

Second, it will place in doubt State laws governing qualifications
andueducational requirements for public office. Third, it Will dramati-
cally affect State laws establishing congressional districts. State legis-
lative districts, and local governing body apportionment or redistrict-
ing schemes. Fourth, it will place in serious doubt countless provisions
in election codes throughout the Nation. Such common and well-estab-
lished practices as anti-single-shot voting requirements, majority vote
requirements, cancellation of registration for failure to vote, residency
requirements, special requirements for independent or third-party
candidacies. numbered electoral posts. and staggered electoral terms
are also explicit targets of the results test.

Quite apart from the notion of proportional representation, the
more I think about it the more convinced I become that the most funda-
mental distinction between the intent standard and the results standard
involves an even greater issue. The real issue is whether or not we are
going to define civil rights in this country by a clear, determinable
standard, through the rule of law, as it were, or by a standard that
literally no one can articulate. In describing discrimination under the
results test, Benjamin Hooks, for example, president of the NAACP,

testified :

Like the Supreme Court Justice said about pornography, I may not be able
to define it but I know it when I see it.

In the final analysis. that is precisely what discrimination boils down
to under the results test because there is no ultimate standard for
identifying discrimination, short of proportional representation.

Under the intent test, jud es or juries evaluate the totality of cir-
cumstances on the basis of w ether or not such circumstances raise an

22

inference of intent to discriminate. In other words, once they have
before them the entire array of relevant evidence relating to an
alleged discriminatorv action, the ultimate or threshold question is,
“Does this evidence (1 up to an inference of intent to discriminate?”
Under the results test, however, there is no comparable question.
OOnce the evidence is before the court, whether it be the totality of
circumstances or any other defined class of evidence, there is no logical
threshold question by which the court can assess and evaluate the evi-
dence short of propmfional representation. As Professor Blumstein of

the Vanderbilt Law School has testified:

The thing you must do under the intent standard is to draw a bottom line.
Basically, is the rationale ultimately a sham or a pretext or is it a legitimate
neutral rationale. That is under the intent standard and that is a fact-finding
decision in the judge or the jury. Under the results standard it seems to me that
you do not have to draw the bottom line. You just have to aggregate out a series
of factors and the problem is, once you have aggregated out those factors, what
do you have? You know it is the old thing we do in law school: you balance and
you balance but ultimately how do you balance? What is the core value?

There is no core value under the results test ekcept for the value of
equal electoral results for defined minority groups or proportional
representation.

The implications of this are not merely academic. In the absence of
such standards, the results test affords virtually no guidance whatso-
ever to communities in evaluating the legality and constitutionality of
their government arrangements; that is, if they lack proportional
representation. And it affords no guidance to courts in deciding
section 2 suits if there is a lack of proportional representation.”
undermining a fixed rule of law and substituting a new rule of “y u
know discrimination when you see it,” the results test would, '. the
words of the upreme Court in Mobile: “Discard these fixed a V
in favor of a dicial inventiveness that would go far to .. : d making

  
     
        
 
  
      
  
  
     
  
  
 
 
  

standard as the runs for identifying discr ination. Controversy
concerning the stan rd and the Mobile ca stems from three basic
contentions. First, it is rgued that the M . vile decision is contrary to
the original intent of Co ~ _ress. Second t is ar led that the decision
was contrary to prior law. hird, it -, argued tilat it poses a test for
identifying discrimination hich ' impossible to satisfy. Let me
respond to these in turn.

First, as to the matter of or'
of the results test argue that a res
inal object" of Congress in -ction nd that this object was misin-
terpreted by the court in . labile. To t ' I would simply respond that
Con ress chose explici to use the effect est in sections 4 and 5 of the
act in highly unusu and limited circum ances. The fact that such
language was 0111' ed from section 2 is :20 . icuous and telling. If
Congress had in 'ndcd to use a results or efl’cc test in section 2, they
had already . onstrated that they were quite apable of drafting
such a prov' on. Congress chose pointedly not to 0 this. Proponents
of the res ts test have also frequently taken out o context a single,
ambiguous remark by former Attorney General Ka enbach on the

al congressional intent, proponents
s or effects standard was the orig-