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In oflering the substitute, I was guided by two ke objectives. First,
it was imperative to make it un uivocally clear t at plaintifl's ma
base a violation of Section 2W
in which case roof of discrrmrna ry in nt or purpose would be
neither requi , nor relevant. I was convinced of the inappropriate-
ness of an “intent standard” as the sole means of establishing a voting
rights claim, as were the majoritv of my colleagues on the Committee.
As ex lained more fully in the Committee Report, the basic problem
with t e test is that its focus is misplaced. If a voting practice or struc-
ture operates today to exclude members of a minority group from a
fair opportunity to participate in the political process, the motives
behind the actions of ofiicials which took place decades before is of
the most limited relevance. Further, it places an inordinate burden of
proof on plaintiffs, thus frustrating vigorous enforcement efl’orts. It
also causes divisivenes because it inevitably involves charges that the
decisions of oflicials were racially motivated. In short, from both a
policy and legal standpoint, exclusive reliance on the test is misguided
and would prevent eradication of the racial discrimination which, un-
fortunately, still exists in the American electoral prom.

PP- HMS Era-34.53

THE REVISED SECTION 2 DOES NUT INCLUDE AN ELEMENT 0F INTENT

It should be reemphasized that the “results” test contained in the
substitute amendment in no way includes an elenrent of discrrmrnatory
pu . I am aware that some have sought to characterize the thte
hol ing as including an ultimate purpose requirement or a _so—called

' , “objective design" element. The implication of this characterrzatron rs
that because the substitute amendment codifies the Whifc standard,
the amendment also includes some requirement of discriminatory pur-

. But in presenting my compromise before the Committee. I ex-
plicitly stated that “the supporters of this compromise belicve that a
voting practice or procedure which is discriminatory in result, should
not be allowed to stand. regardless of whether there exists a discrimi-
natory purpose”. Further. as the Committee Report spells out. in
adopting the substitute amendment, the Committee has concluded that
the White case made no findings and required no proof as to the motl-
vation or purpose behind the challenged voting practice.

[page 195]

It should be noted that prior to the Committee markup on S. 1992,
numerous draft amendments were circulated to Committee members
which were said to achieve. in various ways, some third, composrte
kind of standard, ostensibly combining both the “results" and “intent”
tests. One such suggestion was that defendants be permitted torebuta
showing of discriminatory results by a showing of some nondrscrimr-
natory purpose behind the challenged voting practice or structure.
Another suggestion was that the results test of White be vrewed as
requiring plaintiffs to prove that the discriminatory result of the chal-
lenged voting practice was a reasonably forseeable consequence of its
desrgn. However, m colleagues and I who ofi'ered the substltute
amendment remaine convinced that Section 2 should only require
plaintifl's to establish discriminatory “results" and rejected the notion
that any element of purpose should be incorporated into the standard.

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standard in the original Section 2. A new subsection'(b) is created
which includes specific modifying language taken directly from the
Supreme Court’s White v. Regeater decision. Thus, the Committee
has created a new standard that codifies the analytical interpretation
of voting discrimination as articulated in White v. Regenter. Thus
the new language of Section 2 is the test utilized by the Supreme
Courtin thtemothin more and nothin less.

By substituting a results” test in ubsection (a) the proposal
clarifies that proof of discriminatory purpose is no longer required

[page 198]

for the establishment of a Section 2 violation. Should plaintiffs choose
to satisfy the “intent" standard they may do so. The new standard
demands that plaintifl's show that, in accordance with the provisions
of Subsection (b), the challenged practice or procedure was imposed
or applied in a manner which results in a denial or abridgement of
the ri ht to vote on account of race or color. The establishment of a
violation—proving a discriminatory result—is thus contingent upon
satisfaction of the rovisions of Subsection (b).

Subwction (b) directs the courts to consider the “totality of the
circumstances” in adjudicating each individual case. In evaluating
these cases the Court should conduct a thorough inquiry into the rele‘
vant circumstances and objective factors of each case. Later in this
section it is stipulated that “disproportional representation" is only
one “circumstanw” which may be considered. Other objective factors
which the Court may find relevant are adequately outlined in the
Committee Report.

It is further stipulated in Subsection (b) that a violation is estab-
lished if. based on the Court’s inquiry into the totality of the circum~
stances. it is shown that “the political processes leading to nomination
or election in the state or political subdivision are not Holly open to
participation by members of a class of citizens protected _v Subsection
(a). “Not equally open” is thereafter defined by the clause “in that its
members have less opportunity than other members of the electorate to
participate in the political process and to elect. representatives of their
c oice.’

Therefore. in order to establish a violation by proof of a discrimina-
tory result plaintifis must demonstrate that the members of the mi-
nority group have less opportunity than other members of the elec-
torate to participate in the political process and to elect representatives
of their choice.

P

wrra'r rs ma NEW STANDARD?

In determining the practical Significance of these rather nebulous
conwpts the Committee has ordered that the Courts rely upon the
Supreme Court’s application of this standard in White v. Regester. In

that case the Court found that there existed functional bars to par-
trcipation by both Black and Mexican—American citizens in the po- I
litical processes in Dallas and Bexar Counties. The Court found that
Blacks _1n Dallas County were effectively barred from slating can-
didates in the Democratic party. In Bexar County the Court noted that
Mexican-Americans suffered a cultural and language barrier that
maggsparticrpatlon in community processes extremely difficult. Whitn
p. , . .

The committee has sought to overcome these semantical difiiculties
by embracrng {practical standard articulated in the Supreme Court
decrsron of Whale v. Regesfcr. The plain language of subsection (b)
and the Supreme. Court’s analysis of the totality of the circumstances
in.W_Iute.lead me to the conclusion that the exclusive test in voting dis—
crimination cases rs whether there exists an efl'ective bar to minority
fitting: equafl opportgmrty tplparticipaste in the political process. In

e a ence o sue a ar 8. vro ation o . ectio ' '

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The Re rt claims that a “results test" under Section 2 would create
«Treat don t. and uncertainty about. the appropriate legal standard.
in fact. the proposed amendment to Sectionj2 would codify a test apl
plied with no suggestion of difliculty in over two dozen Courts of Ap-
peals decisions across the country. The touchstone would be straight-
forward: whebher minorities had a fair opportunity to participati- in
the political process?