Legal Research on Joseph L. Rauh Testimony 2

    \56 fig?)

980

I would say the effect test is clearly the better test. The intent
test gets you into all the side issues of subjective motivation; most
importantly the effect test gets more directly at what we are trying
to stop. We are trying to stop the results of discrimination, not just
the intended discrimination. A guy might be wrong, a legislature
might be wrong, and the effect of their acts may be discriminatory.

Now you say, well, how are you going to keep it from going the
whole way to proportionality? I thought Professor Dorsen was ex-
cellent in his presentation of how you would keep at—large voting
from becoming a per se illegality. I would be against a statute that
would make at—large voting per se illegal.

Let. me put it this way: If Congress decided to say that any at-
large voting was illegal on a civil rights basis, I would be against
that. If possibly someday Congress decided that in governmental in-
terests generally—forget about race, forget about discrimination—
that there was something valuable in local districts as against at
large voting, maybe Congress has the power to do that. That is a
much tougher question. That would be a really hard exam ques
tion.

However, I would be against saying on race grounds that you
automatically knock out at~large voting. I do not think the courts
are going to do that. As a matter of fact, Mr. Parker put in a very
good document here in which he pointed out. that even under the

effects test, a lot of cases against at-large voting have been lost. I
do not think you are going to win every time with the effects test.

Senator HATCH. I do not either but it certainly makes it a lot
easier.

Mr. RAUH. Yes, and I think that——

Senator HATCH. Rightly or wrongly.
hMr. RAUH. Yes; I think rightly and you think wrongly. However,
t at is——

Senator HATCH. Not necessarily, but I am saying I think in many
cases it can be wrongly applied. and that is one of the problems
that I have with it. More importantly. however, it is an appropriate
test.

Mr. RAUH. Well, I am not for a per se test, and I do not think
you are going to have it. Look. I know what happens in most of
these situation. Where you really have a case, the blacks can show
other discrimination against them. They do not get the public serv-
ices the white areas get. They find someday the polling place is
suddenly moved, or something. There are all sorts of possibilities
here.

Where you really have a fair-run city or a county or other local
body, where government is really fairly operated at large, the
courts are not going to knock out at—large voting my experience
with the courts is that they are not quite as hot for doing these
things as some of your questioning and feelings would imply. I
think courts are essentially conservative bodies who do not want to
go beyond the important points. Unless they really feel that there
has been real discrimination through the at-large system, courts
are not going to treat section 2 as ordering them to stop at-large
voting.

It seems to me that one has a choice to make. It will be easier to
prove discrimination with the effects test, but it should be easier.