Richmond v JA Croson Company Brief of Amici Curiae in Support of Appellant

    o. \

0 Havin said that, I can only repeat what I have consistently stated
during t e Senate debate on the proposed amendments to section 2.
These amendments, in my view, including my friend from Kansas,
will effect an incalculable transformation in the purposes and the ob-
jectives of the Voting Rights Act. They will alter what has been the
traditional focus of the act and indeed of all civil rights law generally
from equal access to registration and the ballot to equal results and
equal outcome in the electoral process.

The Constitution as well as the public policy implications of this
change will be immense. In what seems to be t e euphoria generated
by the proposed com romise amendment by my friend from Kansas,
whom I respect great y as much as any man in this Senate, I must re-
grettably state that I believe that the emperor has no clothes. The pro-
posed compromise is not a compromise at all, in my opinion. The im-
pact of the proposed compromise is not likely to be one wit different
than the unamended House provision relating to section 2. As much
as I have been tempted to embrace this language and, too, of course,
claim compromise if not victory, I simply cannot do this.

In this respect, I recall the words of another Member of this body
about a decade ago. When asked his solution to the Vietnamese con-
flict, Senator Aiken of Vermont argued that we ought to immediately
Withdraw our troops from Indo-China, bring them home, and claim
victory for ourselves. That, in my view, if the equivalent of supporters
of the intent standard attempting to describe the proposed amendment.
as a victory or a compromise. As Pyrrhus said many centuries ago,
another such victory over the Romans and we are all undone.

I would like to outline for the record very briefly why this language
is not a compromise. I would like to do this with full knowledge of just
how difficult an issue this has been for many of my colleagues and just
how hard they have been looking for language which difi'ered from an
intent test and yet differed from the House provision. I do not raise
these criticisms of the proposed compromise to call into question the
sincerity of any of my colleagues 'but simply to observe that, to the
extent serious questions are raised by the House language, they are not
ameliorated at all by the proposed amendment. And I know how
sincere my colleagues are.

The proposed amendment contains two sections. The first section is
identical to the present House amendment to section 2. It would alter
the present law language of section 2 from an intent standard to a re-
sults standard. Discriminatory conduct for purpose of the act would
be redefined. For all the reasons that have been outlined in my earlier
statements and in the subcommittee report. which I would recommend
to anyone genuinely trying to understand these issues, the first section
is as equally flawed as the House language. The question then is wheth-
er or not the second section. which is largely new. would mitigate any
of these difficulties. I do not believe that it would whatsoever.

In short. this language amounts to little more than cosmetics.

Let me focus on the highlights of this section. The section refers to
violations being established on the basis of to‘alitv of circumstances.
That. I gather. is supposed to be the helpful language. It is not. There
is no doubt that under either the results or the intent test a court would

71

look into the totality of circumstances. The difierence is that under the
intent standard, unlike the results standard, there is some ultimate
core value against which to evaluate this totality. Under the intent
standard, the totality of evidence is placed before the court, which
must ultimately ask itself whether or not such evidence raises an infer-
ence of purposeful discrimination. Under the results test, there is no
comparable workable standard.

As Prof. James Blumstein has observed:

Under the results test once you have aggregated out all those factors. what do

you have? Where are you? 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 other than election re-
sults. There is no core value that can lead anywhere other than propor-
tional representation by race. But we are assured that there is a strong
disclaimer against this in the new compromise. That is not quite true.
The referred-to language states:

Nothing in this section establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.

Most pointedly, perhaps, nothing in this language refers to the avail-
abilit of proportional representation as a remedy to a section 2 viola-
tion. et us see if proponents of this language are amenable to pre-
cluding proportional representation as a remedy. Then maybe we will
reach a result that would be what they have claimed in public.

More fundamentally, however, this language, in the words of the
Supreme Court in the Mobile case, is illusory as a protection a ainst
proportional representation. It is illusory because the precise rig t in-
volved here is not in fact proportional representation but the right to
political processes that are “equally open to participation by members
of a class of citizens protected by subsection a.” The problem, of course,
is that this right has largely been defined in terms of proportional rep-
resentation. In other words, this specific right, one not addressed at all
in the disclaimer, is violated where there is a lack of proportional rep-
resentation plus the existence of what have been called objective fac-
tors of discrimination.

Perhaps the most important objective factor of discrimination is
the at-large system of municipal government, which some in the civil
rights community believe serves as a barrier to minority participation.
Under the results test the absence of proportional representation plus
the existence of an objective factor such as an at-large system Would
constitute a violation.

In a highly technical sense, it would not be the lack of proportional
representation by itself but the lack of proportional representation
combined with the so-called barrier to minority voting such as the
at-large system. It would be irrelevant that there was no discrimina—
tory purpose behind the establishment of the at-large system or that
there were legitimate nondiscriminatory reasons for its establishment.
Among just a few of the other so-called “objective” factors of dis-
crimination—and I put “objective” in quotes—besides an at-large sys-
tem would be laws canceling registration for failure to vote, residencv
requirements, special ballot requirements for inde endent or thir -
party candidates, staggered terms of office, anti—smgle-shot voting,

72

evidence of racial bloc voting, a history of English-only ballots, num-
bered electoral posts, majority vote requirements, et cetera, et cetera,
et cetera.

The right established in the new section 2 would not technically be
to proportional representation. The right precisely would be a system
of State, local, or county government that lacked proportional repre-
sentation and that was characterized by one or more of these objective
factors of discrimination.

As the Supreme Court clearly recognized in M obilc, a disclaimer of
the sorts in the proposed compromise is meaningless and illusory. The
root problem is not with an inad uately strong disclaimer. The root
problem is with the results test itse f. No disclaimer, however strong—
and the immediate disclaimer, I submit, is not very strong, in any
event, because of its failure to address proportional representation as
a remedy—can overcome the inexorable and inevitable thrust of a re-
sults test, indeed of any test uncovering discrimination other than an
mtent test.

The concept of a results test as one focused upon political processes
that are not ‘e ually 0 en to participation” is fine rhetoric but has also
been identified y the Supreme Court in Mobile for what it is at heart.
Justice Stewart in Mobile stated in response to a similar description
of the results test by Justice Marshall in dissent:

This dissenting opinion would discard fixed principles of law in favor of a

judicial inventiveness that would go far toward making this court a super-
legislature.

In short, the concept of a process equally open to participation
brings to the fore the second major defect of the results test after its
notion of proportional representation. That is that the results test
offers absolutely no guidance whatsoever to courts in determining
Whether or not a section 2 violation has been established. It offers no
guidance whatsoever to communities in determining whether or not
their electoral policies and procedures are in conformity with law.

What is an equally open political process? How can it be identified
in terms other than statistical or results oriented evidence? Under what
circumstance is an at-large system a barrier to such an open process?
Under What circumstances are periodic registration requirements a
barrier to an open process? What would a totally open political process
look like?

Not only do I believe that proponents of the results test are unable
to answer these questions in anything but the vaguest terms, but no
one is able to answer these questions. As Justice Stevens noted in his
concurring opinion in Mobile:

The standard cannot condemn every adverse impact on one or more political
groups without spawning more dilution litigation that the judiciary can manage.

On the opening day of hearings, I raised three fact situations with
my colleagues on the committee. One fact situation related to Boston,
Mass; another to Baltimore, Md.; and another to Cincinnati, Oth.
I asked repeatedly 110w, given the fact circumstances in these com-
munities, could a mayor or councilman in those communities assure
themselves that a section 2 violation could not be established. I have
yet to hear an answer that would afford the slightest bit of guldance

73

to these individuals, and that is after days and countless hours of
listening to testimony and asking questions.

Each of these communities lacks proportional representation. Each
has erected a so—called barrier to minority participation in the form
of an at-large s stem. Each has been characterized by some history of
school segregation. There are thousands of other cities across the N a-
tion in precisely these circumstances as well.

I will ask the question once more. How does a community and how
does the court know it is right and wrong under the results standard?
How do they know enough to be able to comply with the law? How do
they know what kind of electoral law or procedure is valid and under
what circumstances? \Vhat kind of electoral law or procedure is in-
valid? How do we avoid having the concept of racial discrimination
boil down to nothing more than what one witness said? I may not be
able to define it, but I know it when I see it.

Mr. Chairman, there are other objections to the proposed amend-
ment. As with the House ro osal, it transforms the concept of section 2
from one protecting indivi ual citizens into one protecting racial or
color groups.

Second, it even goes beyond the House language in its euphemistic
reference to the ability of racial groups to “elect representatives of their
choice.” In this regard, I note the statement of Georgia State senator
Julian Bond in the New York Times yesterday, in which he commented
upon the redistricting presently taking place in that State. He said:

I want this cohesive black community to elect a candidate of their choice. White
people see nothing wrong with having a 95 percent white district. Why can’t we
have a 69 percent black district?

That ultimately is what the so‘called right to “elect candidates of
one’s choice” boils down to: the right to have established, racially ho-
mogcnous districts to insure some measure of proportional representa-
tion.

Finally and perhaps most importantly, the proposed compromise
suffers from the flaws of the House language in that it attempts statu-
torily to overturn the Supreme Court. decision in City of Mobile. In a
nutshell, it is every bit as unconstitutional as the unamended House
language. Under our system of government, Congress simply cannot
overturn a constitutional decision of the Supreme Court by simple
statute. The Supreme Court has held that the 15th amendment requires
a demonstration of purposeful discrimination. To the extent that the
Voting Rights Act generally and section 2 specifically are predicated
upon this amendment, and they are, there'is absolutely no authority in
Congress to impose greater restrictions on the States.

There is purely and simply no power within Congress to act beyond
the boundaries of the 15th amendment as interpreted by the Court. It is
unconstitutional, in my view, to overturn Roe v. Wade by simple law,
and it is equally unconstitutional, in my view, to overturn Mobile In
this manner.

Mr. Chairman, the changes that will be wrought by the change in sec-
tion 2 will not come overnight. They will not be felt fully this year or
next year or the following year. Over a period of years, however,
perhaps only over a period of decades, the proposed change in section 2
will have a profound impact upon what this Nation stands for. We can

74

launch all the platitudes that we care to about our concern for civil
rights, but let us make no mistake about it. Both the purpose and the
clear effect of this statute will be to inject racial considerations into
more and more electoral and political deCisions that formerly had noth-
ing to do with race. Increasingly, this Nation is going to be content
with providing compact and secure political ghettos for minorities
and conceding them their 10 percent representation rather than at-
tempting to move them toward the electoral mainstream in this coun-
try. Increasingly, the Federal courts of this Nation are going to become
even more deeply involved in State and local electoral and political
affairs than in the past.

The change, Mr. Chairman, will not be subtle. Because of this legis-
lation and because the results test may soon be established in other
areas of the law, we are embarking today upon a major change in di-
rection in civil rights. We are forsaking the great historical goals of
equal protection and a color-blind society and establishing new goals
in which racial balance and color-consciousness are primary. The
change may appear to some of us as somewhat subtle toda , but I assure
you that its impact will become clearer and clearer as t e years pass.
Rather than moving in the direction of a single society, we have begun
to give legal and constitutional sanction to a restoration of separate
but equal.

I 110 e that my colleagues think long and hard about what we are
doing ere today, as I know that they have already done. Those of you
who share at all my concerns about the results test may look apprecia-
ti vely upon the out being offered us by the present compromise. I would
hope, however, that my colleagues will not delude themselves into be-
lieving that it represents anything more than that.

I would just say in conclusion that I personally am glad to have this
battle approaching an end. I fought it as hard as I could, in the best
manner that I could, feeling as deeply as I do about the Constitution,
about its principles. I fought it on the highest intellectual plane that
I could. But, clearly, the majority of my colleagues have chosen other-
wise. I am the first to acknowledge this fact. So, although I cannot
support this amendment, I do intend to vote for the final act because
of the principles for which it stands and because of my belief that there
still are grievous wrongs in our society perpetrated against minority
individuals. I personally believe we must do everything we can to root
them out.

I feel very serious about this constitutional issue and have felt
obliged to make these arguments so that nobody can say, when these
issues face the Supreme Court, that they have not been made. Nobody
can say decades from now as we see major changes in our society that
people failed to make these arguments at the time when such changes
could have been prevented.

With that, I compliment my colleagues on both sides. I congratulate
my friends in the civil rights community for the way they fought this
battle. I have nothing but the highest respect for them. I have learned
to appreciate many of these individuals who have testified before our
committee for their sincerity, their drive, and their determination in
these matters. I compliment them. I compliment Senator DeConcini-
and other members of. our committee for the hard work that they did