Congressional Record S6841-S6888

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o Senator MArrurs. Weff, r"t-il];i? ahead a second here so
that you have it all out. Yectenday-we had Frank Parker here,-and
he lo6ked at the pre19?8 voting clilution cases and,analyzing about
20-odd of them, he drew a number of conclueions from these cases,
including that the prevailing standard was the results standard;
that proportional representation was never requiryd and -was rou'
tinelv repudiated; that there was no per 8e invalidation of at large
electionsi that th6 results test does nbt insure near victory for the
plaintiffd but that the defendants have won-a significant number of
iases under the results test; and, that results requires much more
than a scintilla of evidence, in addition to the absence of minority
etected offrcials, to sustain a finding of unconstitutionality.

Now it seems to me that this analysis, teken with the John Hart
Ely precept with which you say you-agreelreally leads us to adopt
tha lind 6f praguatic approacli or toot]ns comprehensively at a sit'
uation-

Mr. Bruusrurx. Senator, let me try to respond to that. I think
that I now see where you are moving.

The notion that an- effects test is appropriate where there id an
affrrmative constitutional duty applies in cases like interstate com-
merce, where the Supreme Court has held that there is an affirma-
tive value in the fri flow of commerce, or in separation of church
and state, where you do not need to find intentional activity to
breach that barridr. T?rere is an affrrmative policy of separation,
and that can be proven by effects, or in the freedom of speech area
we have an affrrinative policy of encourag:ing the free flow of infor-
mation, and that can be shown by showing anadver^se consequence.

I ce*ainly would agree, if we talk about-what 4g-ht-ry Fi"q.-'
fringed, I w-ould not personally haye a-problem and I think section
S rd-a[:i responds to this, as best I understand it. Section 5 is trig-
gered pri-*itv by low-voter registration. I think it is at least argu-
Ibte t6at it wduld be appropriate for Congress and for society gen-
erally to adopt an affirmative policy of encourag:ing voter registra-
tion and encouraging voter participation.

:

ruz

What eection 5 doee, it says if there is not adequate voter regis'
tration or voter participation, then there is a breach of what is an
important eocietril valui and you can look at the efrect. Thoee are
participatory values, and I think it is appropriate for society to en-
eourage participatory values.

My-pr'oUtem'here- is that the value that is being asserted is a

.o,riti;"rrted value, an outcome value, not a process value' You
cannot measure reeult values or outcome values by effects because
there is no entitlement or right. You have a right to vote and you
have rright to have that vof,e counted. You have a right not to be

.t o*o thE Peli''g Daily in a literacy test. You have a lot of differ-
ent kinds of righ[E associat€d with participation in the voting proc-
e88.

You do not have a right to have a particular representative of
you political pereuasion, your religion, your racer or youl gender,
Ltectit as an-offrcial. tlhit is where we pa.rt company. You have
precisely put your finger on the problem: ltrere is a-right to par-
ticipate; there-is not ai affirmativL 

"igh! 
to have racebased entitle

-"irts in tt e ultimate election of candidates. There you have put
yo"r n rg"t on the nub of my disagreement with the language of
section 2 of the House bill.

The other thing is that I do not thinL', r1 co$lrurng "n effects
standard, that yo-u can look at the standard and just *y Whitc v'
Repestcr. We cin sv White v. RcEestcr as many times as we went
bul we also have GrtwPs, and we also have Albemorlc Poper, and we
al"o h."e Webr. W;aiso have a set of title VI cases that would
eeem to have the impact of stopprng or very seriously threateaing
the flexibility of Goier:rment i,oU.i from closing down hoopitals,
fs1 s)rnmple,-that ar€ eimed at mindrity communitiqs,-even if thoee
hospitals, as I say in my testimony, are running-deficits and are
cauilng a fiscal h6morrhage. That is a serious problem. 

-
U yo-u look at the reeulitiorls undlr the certificate of need legis'

Iatioir, it makee it extrbmely difficult for a governmaltal entity to
iustifv shuttins down these kinds sf hoepitals, even though on eco-nomii grouodi that might be perfectly Justifiable{herefore, I do
not thiik you caD loo[ at this and recreate a White v. R.egatcr
standard, siss"ming we could agree on what Whitz-v. Rege-stcr-srya,
on the basis of thJlanguage in-stion 2 as amended by the House. o

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