Legal Research on Lawyers' Committee for Civil Rights Under Law

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that evaluati n of dilution claims “should be made under . . precedents

[which] do no each the question of racial motivation.”

       
    
  
 
  
 
  
  
 
  
  
 

[Zimmer v. u c ' - o upon the misunderstand-
ing that it i no ' tory purpose in order to
prove a viola ion 0 the Equal Protection Clau hat proof of a discrimina-
tory effect is sufl'lcie t.

446 U.S. at 71.

The Mobile decision thus
standard applied both by the
black and Hispanic voters had a - :

presents a ra' cal departure from the prior legal
i t and the Fifth Circuit under which

  

Mobile decision, the Justice I partme (during the Carter Administration)
died two White v. Regester 'wsuits cha -nging‘ multi-member districts in the
South Carolina Senate (U
voting in Hattiesburg, as V. City of Hattieaburg)—both
of which were dropp- within three months a ~ the Mobile decision because
of the difliculty of v oving discriminatory intent. ‘ ese actions show that the
itself recognized that the M0121 case drastically changed

  

the law.

The House ..
simply to restore the legal standard followed in the cases .
focuses on the results and consequences of a challenged vot ‘ '
on the intent or motivation behind it.

- tion 2 amendment is
or to Mobile, which
law, rather than

c s. ”PROPORTIONAL REPRESENTATION”

What Mr. Reynolds said:

“By adopting a statistical test which measures the statutory validity of a vot-
ing practice or procedure against election ‘results.’ the House amendment would
place in doubt the validity of any election system under which candidates backed
by the minority community were not elected in numbers equal to the group’s
proportion of the total population.” (Written Statement, p. 14.)

The truth is: These proportional representation claims are made out of whole
cloth. There is nothing in the language of S. 1992. the House Report, or the
speeches of the various supporting witnesses and members of Congress to lead
to the conclusion that quotas in election results are the goal of the House-passed
bill. Indeed. the plain words of the amendment specifically disclaim proportional
representation. The second sentence of Section 2 of S. 1992 reads: “The fact that
members of a minority group have not, been elected in numbers equal to the
group's proportion of the population shall not, in and of itself. constitute a viola-
tion of the Section." As the Washington Post correctly editorialized. “The draft-
ers of the House bill went to some trouble to avoid this misapprehension [that
Section 2 would require proportional representation)" (The Washington Post,
December 20, 1981).

4. THE EXIBTENCE OF A TRACK RECORD REGARDING THE RESULTS TEST AND
PROPORTIONAL REPRESENTATION

What Mr. Reynolds said:

“Senator MATHIAS. . . . [Y]ou said that we had no experience as to how
the court would react under an ‘effect‘ test. But is it not true that we do have
a track record on which to rely for the, amended Section 2? There is. in fact. a
track record of a lot of Court of Appeals decisions that did adopt the ‘result'
test. that did look to all the circumstances, that did reject proportional repre-
sentation. and I would submit that this track record does exist and that the
Congress can rely upon it with a great deal of confidence.

“Mr. REYNOLDS. Well, with all due respect. Senator, you are absolutely
wrong . . . The cases that I suspect that you have reference to. all are cases
that came out of White versus Regester mold. largely in the Fifth Circuit.
Those cases do incorporate and include an element of the violation that there
has to be a showing of discriminatory intent.” (Transcript. pp. 72—73) (Emphasis
added).

' 745

The truth is :

There is an extensive Fifth Circuit track record under the results test, and
it specifically repudiates in word and practice the notion of proportional rep—
resentation. As previously noted, the lawyers’ Committee analysis presented
at the Subcommittee hearings shows that the Fifth Circuit consistently applied
a results standard to vote dilution cases from 1972 to 1978. None of the nineteen
cases summarized in that analysis required proportional representation and. as
the summaries specifically demonstrate, all but two explicitly repudiated the
concept of proportional representation. For example, the Court noted in Zimmer
that “[c]1early, it is not enough to prove a mere disparity between the number
of minority residents and the number of minority representatives.” 485 F.2d at
1305. And in I'aigc v. Gray. the (‘ourt’s articulation of a results analysis was
accompanied by the statement that “the plaintiff must show more than a mere
disparity between percentage of minority residents and percentage of minority
representation.” 538 F.2d at 1111.

Thus, contrary to Mr. Reynolds’ representation, we clearly do have an ex—
tensive track record which shows that the results test in no way leads to pro-
portional representation. Indeed, th results test specifically repudiates the con-
cept of proportional representation.

5. FEDERAL COURT ‘‘RESTRUCTURING'y 0F ELECTION SYSTEMS

Whht Mr. Reynolds said:

“But in the archetypal case—where minority-backed candidates unsuccess-
fully seek oflice under electoral systems, such as at-large systems, that have not
been neatly designed to produce proportional represcntation—disproportionate
electoral results would lead to invalidation of the system under Section 2, and,
and. in turn. to a federal court order restructuring the challenged governmental
system. Such restructuring would by no means be limited to southern cities. . . .
Would the multi-member districts in Pittsburgh, Pennsylvania or Hartford, Con-
necticut be vulnerable to a restructuring federal court suit under Section 2? A
brief look at the statistics would lead to the conclusion of minority underrepre-
sentation in those cities, as well as Wilmington, Delaware and Kansas City.
Kansas and many others. Yet no evidence has been presented suggesting racial
discrimination in the electoral system of those cities." (Written Statement
p. 16).

“Mr. REYNOLDS. We have done a rough survey to see exactly what the impact
might be with regard to an effects test and certainly in the areas that were men-
tioned in my testimony, Pittsburgh, Pennsylvania, and you have an at-large
system where you have 24 percent of the population in Pittsburgh that is minor-
ity and they have only one black out of nine on the city council.

“Without trying to suggest that there are any discriminatory motives at all,
and I do not suspect there are, to the effects test that would be vulnerable to
attack. You can go down

“Senator HATCH. Ilow about Hartford. Connecticut?

"Mr. REYNOLDS. Hartford. Connecticut would have the same problem. Wil-
mington, Delaware; Dover, Delaware, would have the same problem. Fort
Lauderdale——

“Senator HATCH. How about Boston?

“Mr. REYNOLDS. Boston, Massachusetts, would definitely have underrepresenta
tion. Springfield, Massachusetts; Baltimore, Maryland, would have underrepre-
sentation. Kansas City, Kansas, South Bend, Indiana—

“Senator HATCH. How about Cincinnati?

“Mr. REYNOLDS. Cincinnati and Dayton, Ohio. would be. Paterson, New Jersey,
Chester, Pennsylvania, Memphis, Tennessee——" (Transcript, pp. 57—58.)

The truth is: This is another example of the “scare tactics" and obfuscation
employed by opponents of the Section 2 amendment in totally misconstruing and
distorting what would happen if the Section 2 amendment became law.

Section 2, since it restores the White v. Regester standard applied by the courts
before the Mobile decision, requires much more than mere “disproportionate
election results” and “minority underrepresentation" to prove a violation. Minor-
ity voters would have to prove that election systems such at at-large voting
actually deny minority voters equal access to the political process.

What Mr. Reynolds did not tell the Senate is that in 1978 the Civil Rights
. Division of the Justice Department conducted a survey of northern and western
cities to explore the possibility of targeting jurisdictions for vote dilution inves«

 

746 ‘

tigations under the White v. Regeater standard, which the Section 2 amendment
is designed to restore. No voting rights lawsuits were filed by the Civil Rights
Division as a result of that survey. Although the cities listed in Mr. Reynolds’
testimony were included in that survey, only Cincinnati was the subject of an
actual vote dilution investigation, and the Civil Rights Division did not discover
the facts necessary to institute a lawsuit under the White v. Regcster standard.

Thus, the experience of the Justice Department shows that cities such as Cin-
cinnati, Ohio will not be vulnerable to a vote dilution lawsuit under the Section 2
results standard simply because of a disproportion in the number of minority
elected officials. I

a. HARTFORD, CONNECTICUT /
/

What Mr. Reynolds said: ,/

“Senator LEAHY. Mr. Reynolds, you say on page 15 of your prepared st ement
that a brief look at the statistics would lead to the conclusion . . . that, inority
under-representation in Northern cities like Hartford, Connecticut, might result
in restructuring ny Federal courts. Is that a basic fair restatement of your
position on page 1 ? /

“Mr. REYNOLDS. hat is what it says, yes.

“Senator LEAIIY. understand that Hartford has a black mayor/f a black deputy
mayor, one-third of the nine-member city council is minority/ comprising two
blacks and one Hispnic. Under the tests of White _v. Regestér and Zimmer v.
M cKeithcn, which ar- revised, what possible basis could anyone find for restruc-
turing anything in Ha tford?

“Mr. REYNOLDS. I blieve you are looking at—your information is based on
outdated figures in Har 0rd and that is not what the situation is.

“Senator LEAHY. Wh.t is the situation in Hartford. today? Do they have a
black mayor?

“Mr. REYNOLDS. A blac mayor—an at-large system with nine members of the
city council. One is black nd one is Hispanic in a jurisdiction that has 33 per-
cent black population and 2‘ percent Hispanic. Total minority of some 55 percent.

“Senator LEAHY. SO am wrong in stating that Hartford has a black mayor,
a black deputy mayor, one-t ird of the city council is minority, two blacks and
one Hispanic? Are those facts ' rong? .

"Mr. REYNOLDS. My inform tion is that there is only one black and one His-
panic and that the percentage 22 percent 11 the city council out of 55 percent
total minority population. '

“Senator LEAHY. So there is ot a bl
one-third of the nine-member cit coun
Hispanic?

“Mr. REYNOLDS. That is not th‘ in ormation I have, Senator.” (Transcript,
pp. 114—116.)

The truth is: The City of Harthv‘
and a nine—person city council w i
blacks and one Hispanic. One of the lack council members is also the deputy
mayor of Hartford. The mayor ' not :. member of the city council.

 
  
 
  
      
  
 
  
  
 
  
  
 
 
  
 

k mayor, a black deputy mayor and
that is minority, two blacks and one

Connecticut is governed by a black mayor

7. PROV G DISCRI iINATORY INTENT

What Mr. Reynolds said-

“The difliculty of provi . discriminato y intent is often cited in support of
the discriminatory effects standard propo. ed by the House. Frequently voiced
by witnesses before this .ubcommittee and by the authors of the House Report
is the review that the Sn reme Court has req ired evidence of the so-called ‘smok-
ing gun’ to prove puruseful voting discri.ination. The Court has done no
such thing.

“To the contrary, in numerous cases it as made abundantly clear that
‘[d]etermining whe ier invidious discrimina'n'y purpose was a motivating
factor demands a s sitive inquiry into such ci umstantial and direct evidence
of intent as mm; b available.’ Arlington Heights v. Metropolitan Homing Com,
.429 U.S. 252, 266— 8 (1977). Indeed, the discrim atory effect of official action
can alone be sui‘l ient to prove an intent to di riminate when the action is
unexplainable on any other basis. as was the ca.e in Gomillion v. Ligh-tfoot,
364 US. 339 (1960). Other indicia of (liscriminatt ry intent recognized by the
Court are (1) the historical background of the chal nged decision, particularly
if it reveals a series of official actions taken for invidious purposes, (2) the degree
to which the action departs from either the normal pro edural sequence or normal

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