Defendant-Intervenors' Reply to States Motion and Incorporated Memorandum to Dismiss

     

 

June 17, 1.982

six hours. Melton said. deoendlnt on wheth-
er 1'- ‘l'u a smooth or rough sea.

purine his stay on Cebu. Melton's aupem.
sor Joe Gapaa. director of the Bureau of
70'3"! Dei'elopment. was notified that
the Cebu Black Shame. a Sit-inch blue-
black songbird. was being placed on the list
of extinct species.

Gapas believed however the bird was not
extinct and asked Melton to help alert loud
people to the need to watch for it in rural

area;

The bird is found only in Cebu. Melton
said. and although he worked hard to ino
volve people in finding the bird. his efforts
occasionally backfired.

Onefartner.toprovehehadseenthe
Black Shame. shot one and sent a picture to
the bureau. Melton said.

While working to save the .tiny bird.
whose song is considered to be more beauti-
ful than its more common cousins through-
out Southeast Asia. Melton also helped to
break ground for the Cebu Nature Center.

He spent many hours working with Perla
Magsalay. a field technician he trained. put,
ting together letters requesting funding for
the center.

But it wasn't until after he left the Philip-
pina that Melton'a projects began to come
to fruition. -

Recently he received a letter confirming
the Cebu Black Shaina was officially has:
on the endangered species list and that
funding for the nature center had come
through.

Melton finds particular delight in the re-
instatement of the songbird because it was
officially sighted with binoculars he had
given to Maul-lay.

Since his return to the South Bay a few
months ago. Melton has had little doubt
about what he wants to do next. “l‘ve al-
ready reapplied to join again." he said.

[From the Palm Desert Post. Mar. ll. i982)

PD Mun Nam AS Pucx Cortes Chin: roa
Casuaun mirror!

Paul Dunn—Walter Mas Binswanger.
El. of Palm Desert. has been named the
Peace Corps country director for Jamaica
by Loret Miller Ruppe. director of the
agency.

A former commercial and industrial devel-
oper. transportation manager and World
War II pilot. Blnswanger will direct the ac-
tivities of the 130 Peace Corps Volunteers
serving in agriculture: urban. rural and com-
munity development; and education pro-
grams in Jamaica. The- prograrcs are de-
signed to help the host country develop its

economic potentlal and improve the quality '

of life of its people.

"i am looking forward to Joining the
Peace Corps and helping to extend the
people-to-people contact that has resulted
in our friendly relations With the Caribbean
island country." says Binswanger. a 1976
candidate for the Board of Supervisors of
Orange County.

Semi-retired. Blnswanger has served as dl-
rector and consultant to Boatrnan Proper-
ties. Inc. a. commercial and industrial real
estate development firm. since l9‘l’9.

He founded Max Blnstvanger Trucking.

Inc. ln 1941. which grew to become an inter.
state carrier operating in five western
states. He sold the company in 1971. and
continued as president and director until
1919.
’He also was involved in oil and gas explo«
ration in Tennessee ind Kentucky. Elm
wangcr was the founder and president of a
commuter airline (now Golden West Air-
lines which serves California).

Binswanger graduated from the United
States Army Air Cadet Training School in

CONGRESSIONAL RECORD —- SENATE

Port Sumner. XML. in 1942 and was commis-
sioned a second lieutenant in the Army Air
Corps. i-ie flea! with the Eighth and Fif-
teenth Air Forces during World War ii.

While with the Eighth. he was shot down
in France. walked across the Pyrenees
Mountains. and was captured and interned
in Spain. He scoped to Gibraltar and re-
turned to England. Thereafter. he trans—
ferred to italy in the Fifteenth Air Peirce
and flew several bombing missions. He was
shot down again in Romania and uptured
by_the Germans. Be was taken a prisoner of
war near the Ploesti Oil Fields where he re-
mained until the end of the war.

Binsw'anger says he has a very high regard
for the effort of the Peace Corps Volunteers
in benefiting world peace. “Peace Corps Vol.
unteers epitomize the American philosophy
of volunteer service." he notes.

His wife. Evelyn. will be working closely
with him. misting wherever she can. say:
Binswanger.

They have eight children. ranging in ages
from'2i to 36. and 12 grandchildren.

There are about 5300 Peace Corps Volun-
teers semng in nearly so developing coun-
tries around the world.

Persons interested in information about
the Peace Corps may call 300—425-3580. Ext.
93. toll free.

[From the Antioch (Calif.l Ledger. Feb. 17.
1332]
Put: Coars Vouhrrm ‘i‘uci-tts merton
to Amen! Won:

Although few people in Antioch could
locate the country Benin. it is home to 'l'ami
Smith. a 1973 graduate of Antioch High
School. She ls a Peace Corps volunteer in
this new Afrian country which was former-
ly called Dahomey.

After earning a bachelor's degree from the
University of California at Davis tith a
major in' nutrition. Smith acted on a long
standing desire and entered the Peace
Corps. She was assigned to Benin in Janu-
an of 1981 for a period of two years. She
visited her family this past Christmas and
her father. Bob Smith. relays many stories
of her experienca in Benin.

Smith travels by Jeep from the coastal
city of Cotonou (pop. 178.500) to the tiny
village of Else where she. the only outsider.
llvu in a concrete block “triplex." Her work
is to instruct the native women in nutrition
for themselves and their babies. Eight out
of 10 babies do not survive to adulthood due
mostly to the malnutrition which unable:
them to fight off disease.

Smith says there are many local food
items available to provide a balanced diet
but natives by tradition refuse to eat them.
By building friendships she has had some
success in introducing new foods. She is cur-
rently getting greater governmental support
and feels optimistic. She ls very excited
about a recent acquisition of baby scales
which will allow her to record infant
growth.

She cooks her own meals using food pur-
chased at the village market—mainly fish.
rice and bananas. When she needs to travel
around the ‘lungle. she hops on the Peace
Corps moped. Her other concession to a
modern way of living is a generator which
she cranks up weekly to provide electricity.
the natives then drift up to her house to
listen to her stereo.

As new Peace Corps volunteers enter the
area. Smith trains them for the assign-
ments. Being half way through a two-year
contract. she is now a senior volunteer. For
companionship and occasional meetings she
jams other PC'rs at the American Consul-
ate in Cotonou.

Smith credits two Antioch High School
teachers with giving direction to her life.

/

S 6929

Linda Terranova. an English teacher. gave
her vibrancy and enthusiasm and Joe Olen-
chalk inspired her by his dedlcatlon to sci-
ence.

Her brother. Steve. clan of '57. is em-
ployed by the Contra Costa. Times. her
sister Robin. class of "ll ls now Mrs. Ste~
phen Rubia. a Berkeley housewife. and
sister Katie is an Antioch High School
Junior.

' a.

 

VOTING RIGHTS ACT
WMENTS OF 1982

Mr. EAST. Madam President. I wish
to speak on behalf of the motion to
proceed which is currently before the
Senate.

I shall not engage in extended dis—
cusion here. I simply wish to make
some remarks which should be of in- ‘
terest to our colleagues with respect to
the issue before the Senate. the
Voting Rights Act. _

i am confident. as things are pro-
gressing. that this Chamber. in due
course. will come to grips with this
issue and will resolve it in an orderly
way. in a way that i hope will reflect
well upon the body. whatever the final
decisionls. ' , ' ‘

I want to make clear that our pri-
mary concern as we have engaged in
substantive discussion. has been to
alert our fellow Senators and the
American people to the importance of
this legislation and to the significant
effects it Will have on our country and
on the election process. That has been
the spirit in which we have entered
into discussion. '

Of course. there is always the risk in
this Chamber that when you support
some measure and want to push it
through quickly. you come to view any
kind of delay as unwarranted and un~
necessary.

However. as we all learn. from time
to time we have to consider legislation
that is vital to our State or to our
region and which we think is quite "un-
poriznt r; the country as a whole.

I :ecall that some weeks ago. the dis-

tinguished Senator from Connecticut

(Mr. Woman) had some matters on
which I ‘;-.sagreed with him. as did
many other Members of the Senate.
bu: about which he felt very strongly.
I admired his courage and forthri ht~
ness in addressing his concerns, and I
think other Members of the Senate
did as well. From time to time all of us
find ourselves in situations similar to
the one in which he found himself.
Perhaps we wish we did not. but it
seems to be inherent in human nature
and the nature of this body.

However. I should like to assure mY'
colleagues. as one Senator. that l fully
anticipate that we can resolve this
issue. too. by reasonable application of
our rules and traditions and that then
we will move on to other pressing busi-
hes.

I did want to clarify that matter.
and I appreciate the opportunity to do
so.

' June 17, 1.982.

every case." A more complete listing
of relevant factors for consideration
was included in the House report on
3.3. 3112.."

These cases are also important be-
cause none of them involved I. require
ment of proportional representation
by race among elected officials as a
remedy to sdiudiated violations.
Indeed. several of the cases expremiy
rejected such a requirement.“

ishln the
to a Re este et. 5 an -
o roo vote dilut on use a.
.‘me—mw “2"“ “m" 5* ““8""
t's role as reme

many opponen 1992 argue that
1. “results" test would “punish“ and
"stigmatize" jurisdictions by imposing
legal sanctions and labeling them as
"discriminators." Nothing could be
further from the truth. The Voting
Rights Act is designed to protect
voters. not to “punish discriminators."
Rather than imposing “sanctions." the
act employs remedies for denials of op-
portunity. “ " ' '
bee in with th

' r than evaluating the
su lect ve intent of past or present po-
llcymakers..a “results" test would in-
quire into objective factors regarding
the degree of electoral exclusion suf-
fered by members of minority groups.
Remedies would then be fashioned by
the courts to alleviate any such exclu-

   
   

 

n.
fit “results" test would thus be less
socially and politically divisive than an
“intent" test. No “accusation" and
“conviction" would be required: no
"discriminator" would be held up to
public scorn. Instead. objective circum-
stances which disadvantage minority
citizens could be identified and cor‘
rected. -
It is very important to note that the
S. 1992 “results" standard is clearly a
constitutional exercise of congressiono
al authority. It has been established
for some time that Congress may.
under the empowering clauses of the
ivil War amendments. require more
of State and local jurisdictions than
the constitutional provisions them-
selves require." Further. the Supreme
' Courtnoted as recently a 1980 that
The prior decisions of this Court foreclose
any argument U13?- Congress may not. pur-
suant to Section 2 [of the 15th Amend-
ment]. outlaw voting practices that are dis-
criminatory in effect.“

Perhaps the most serious objections
raised about S. 1992': “results“ stand-
ard involve the contentions that it
would allow adjudication of violations
of section 2 of the act on the basis of a.
lack of proportional representation by
race plus some additional scintilla of
evidence. and that racial proportional
representation might be either permis-
sible or required as a remedy to adju-
dicated violations of section 2. I have
mentioned this subject several times
earlier in this discussion. but I believe
that the issue of proportional repre—

) .

 

CONGRESSIONAL RECORD —- SENATE

nounced thereafter that they intended
to support the bill as amended by the
those

sentation is important enough to
merit separate discussion.

The original version of S. 1992 had a
provision that stated that a lack of
racial proportional representation was
insufficient. “in and of itself." to es-
tablish I. violation of section 2. Oppo-
nents of S. 1992 claimed that the "in
and of itself” language merely implied
that a lack of proportional representa-
tion plus virtually any other evidence
of discriminatory effect would estab-

h a violation. This interpretation

faulty. because the language of
the original bill was a paraphrase of
the following portion of the White

hts .
Wm M tam-st Reta-tar ovmlom

it is not enough that the racial group al-
legedly discriminated against has not had
legislative seats in proportion to its voting
potential. 412 0.5. 735. 785-4.

Nevertheless. after the completion
of the Constitution Subcommittee's
consideration of S. 1992. many moder-
ate Senators still had doubts that the
language of S.- 1992 would. in fact.
reestablish the White standardm
was in w r t

It was is cons

led to a resolution of the conflict and
broad support of S. 1992 in the Judici-
ary Committee and in the Senate gen-
eralJJ.

Senator Dou: acted as the focal
point of the effort to clarify the intent
of the bill. He‘ took those of us in'sup-
port of the bill at our word. and sug~
gested that if “results" meant' the
same thing as White. why not use lan-
guage directly from White to express
the standard of proof in section 2?
Many days of intent. patient. and diffi-
cult work followed. while a version
which would be acceptable to the civil

rights community. the original spon- -

sors. and to the moderate Senators
with whom we worked was developed.
A number of phrases were worked into
statutory language and incorporated
into a subsection (b) of section 2 of the
act. This new subsection provided
that: . .

(b) A violation of subsection (a) is estab-
lished if. based on the totality of circum-
stances. it is shown that the political proc-
esses leading to nomination or election in
the state or political subdivision are not
equally open to participation by members of
a class of citizens protected by subsection
(a) in that its members have less opportuni-

~ty than other members of the electorate to

participate in the political process and to
elect representatives of their choice."

Finally. to dispose once and for all of
the spectre of proportional representa-
tion. the following clause was added;

The extent to which members of a pro-
tected class have been elected to office in
the State or political subdivision is one 'cir-
cumstance'“ which may be considered. pro-
vided that nothing in this section estab-
lishes a right to have members of 1 protect-
ed class elected in numbers equal to their
proportion in the population.“

This language was adopted by the
Judiciary Committee by a vote of 14 to
4. A number of additional Senators an-

a' e ,- 'b -~ en. White line
of cases was the desired en .

S 6931

Judiciary Committee. Among

Senators. I am proud to say. is the
senior Senator from my own home
State. er Gonowarts. He is con-
vinced. as are most of the Members of
the Senate. that the cow“

tatute

preme Court and lower 999:1 mg
e voluminous egisiative histog

th ciari i lan

 

amour

Mr. President. there is broad agree-
ment that Jurisdictions should be
given the opportunity to bail out from
the coverage of section 5 of the Voting
Rights Act. Unfortunately. there is
quite a bit of disagreement as to how
to go about providing that opportuni-
ty. In addition to S. 1992': provisions.
which would allow bailout starting in
1984. a “simple 10-year extension" has
been proposed which would extend
present provisions of the-law for 10
years. The differences between these
two proposals are complex. but I be-
lieve that careful analysisreveals that
S. 1992's provisions are superior.

The central issue in discussions re~
lating to the reasonableness of a bail
out is incentive: a bailout procedure
must create an incentive for jurisdic-
tions to fully comply with the law. If
the law makes bailout seem either dis-
tant or impossible. no incentive is cre-
ated. Similarly. if the 'law makes bail.
out almost automatic. there is again
little incentive to faithfully comply
with the terms of the act.

Much of the Deep South has been
covered by section 5 for 17 years.
meaning that they have had to pre-
clear all major and minor changes in
voting laws with either the Justice De-
partment of the U.S. District Court
for the District of Columbia. Original-
ly. jurisdictions covered in 1965 were
to have the opportunity to bail out in
1970: that opportunity has been de-
layed. however. by extensions of the
deadline in 1970 and 1975.

AJO-year extension would simply
perpetuate this chain of extensions.
making it a total of some 27 years
before many jurisdictions even have
the opportunity to bail out. Worse. it
would likely create the expectation
that. come August of 1992. yet another
extension would be enacted. Finally. a
10-year extension would place the
prospect of eventual bailout beyond
the immediate consideration of State
and local officials who are serving 1-.
2-. and 4-year terms of elected office.
When one considers all of these fac-
tors. it becomes apparent that a. 10-
ycar extension would not create an in-
centive to comply with the law: rather.
they all serve to make bailout seem
like a distant. if not unattainable goal.

 

 

S 6930

Madam President. I suggest the ab-
sence of a quorum.

The PRESIDING OFFICER. The
clerlt will call the roll.

The bill clerk proceeded to all the

roll.

Mr. DcCONCI'NI. Mr. President. I
ask unanimous consent that the order
for the quorum all be rescinded.

The PRESIDING OFFICER (Mr.
Goes-on). Without objection. it is so

rdered. .

Mr. DzCONClNI. Mr. President. for
the past several months the attention
of the Nation’s civil rights community.
this Canvas. and of the Nation itself
has been focused upon the extension
of the Voting Rights Act of 1965. I
Join in this concern. for as the Su-
preme Court noted almost a century
we '

" epoiiticalfnnchiseofvotingis...a
fundamental political right. beause preser-
vative of all rights.‘

My belief in the central nature of
voting rights has led me to support
and cosponsor S. 1992. the Voting
Rights Act Amendments of 1982.

The Voting Rights ‘Act has been
hailed as “one of the most important
and effective pieces of civil rights leg-
islation ever passed by Congress!“
Under this act. enormous strides have
been made. Prior to the act's enact-
ment. the percentage of black regis-
tered voters in the “covered jurisdic-
tions averaged 29 percent: it is now
well in excess of 50 percent.’ In my
own home State of Arizona. Hispanic
voter participation has increased mar-
kedly. an increase due in large part to
the enactment of the bilingual provi-
sions of the act in 1975.‘

Unfortunately. there is substantial
evidence that racial discrimination
still permeates many facets of the
American eiectorial system. Many
days were spent during the House
hearings on HR. 3112—the House ver-
sion of S. 1992—outiining recent in-
stances of intimidation. harassment;
and intransigence in both the registra~
tion and balloting processes.‘ This
Nation started battling racial discrimi-
nation in voting in 1370 with the en-
actment of the 15th amendment: the
Voting Rights Act. extended and
strengthened by S. 1992. is clearly the
proper means to finish the job.

There is broad support for extension
of the Voting Rights Act in both
Houses of this Congress. Extension.
however. is not the only issue that we
must consider. S. 1992 would strength-
en the act in several important re'-
spects. A strengthening is necessary
because. as Governor Bruce Babbitt of
Arizona remarked:

' {Mlethods lam violent than the police dog
and the billy club can be used to deny the
effective use of the ballot}

In the years since the passage of the
Voting Rights Act. many subtle and
complex means have been developed
to avoid inclusion of minority persons
in the political proces. With the

 

IPootnotes at end of statement.

CONGRESSICNAL RECORD — SENATE

recent Supreme Court decision of

Mobile v. Holden. 446 US. $5 (1980).‘

which requires a finding of discrimina-
tory intent to establish a violation of
the 15th amendment. 2. new statutory
tool became necessary to avoid the
consequences of such subtle discrimi-
natory mechanisms. S. 1992 would es-
tablish a “results" test in section 2 of
the act. and ‘thus provide the neces-

tooi. ,

Additionally. S. 1992 would provide
the opportunity. starting in August of
1984. for covered Jurisdictions as small
u counties to ball out from coverage
under section 5 of the act. While this
bailout was originally supposed to
become available in 1970. a series of
succeeding extensions of the act have
kept bailout out of reach for the vast
majority of covered jurisdictions. S.
1992 would instead set up a stringent
set of guidelines to usure that juris-
dictions applying to bail out from sec-

tion 5 coverage have complied with-

both the letter and spirit of the Voting
Rights Act.
mums-1mm

In the connect the debate over a
“results" versus an "intent" test for
section 2 of the act. opponents of “re-
sults" have asserted that intent to dis-
criminate is. and always has been. the
standard of proof in civil rights law;
This assertion involves a number of
misunderstandings of the history of
civil rights law.

First. while intentional discrimina-
tion has always been clearly prohibit-
ed by the 14th and 15th amendments
to the Constitution. it has not always
been understood to be the sole stand-
ard by which discrimination could be
attacked under those provisions.
Indeed. it was entirely consistent for
Attorney General Katzenbach to state
in 1965 that section 2 would reach any
practice or procedure “if its purpose or
effect was to deny or abridge the right
to vote on account of race or color.”

    
 
  
  
 
 
  
  

June I 7. 1.982

     
 
 
 

.20 “.0
5:3 .EIT- -
anguage designed to
mere numbers or minorities elected to
office would not. by themselves. p -
vide a basis for alleging a violation of
section 2 nor provide a standard for
remedies of adjudicated violations of
section 2. words. the section 2
"res “ tes w- .
W.
ton t an either the s ‘

MEIEZE: §§s§s. '

A “results" test would be superior to
the present "intent” test for a variety
of reasons. First and most fundamen-
tally. "results" language in section 2 of
the act would reimpose the standard
which most Federal courts used in
vote dilution cases prior to the Bolden
decision in 1980. This standard was ar-
rived at through interpretation of a
number of landmark Supreme Court
decisions over the past two decades.
Most important among these decisions
are Fortson against Dorsey.” Burns
against Rici'iardson.u Whitco'rnb
against Chavis.“ and White againts
Regester." These Supreme Court de-
cisions did not create a standard 0
proof which required discriminato
intent: rather. they outlined obiectiv
factors which could be analyzed to d
termine whether or not minorit
voting strength had been unconstitu
tionally diluted by the existing elec
toral system.

As a result of these deciSions. some
23 cases “ were litigated in the lower
Federal courts between 1972 and 1979.

 

 

Va- .. ‘ pu— ~-

enrlo Vh u A‘ .

e we \- t i n. “to

. .. t
. ‘3 Factors taken into ac-
count include lack of minority access
to the candidate slating process. a ten-V
uous policy underlying multimem'oer
or at-iarge districting systems. and the
existence of past discrimination. After

n...

sifh

and to agree with Senator Dirksen's . . .

assertion that section 2 was “a restate- inflating? :1 msucgnfz egrcsiuiohghad

ment. in effect of the l.5th amend- y ‘ c.‘ ese.
' support could be provided through

merit."I That same year. the Supreme .
. . proof of such electoral mechanisms as
Court had held that multimember diso majority vote requirements and anti-

trict systems would be unconstitution< single-shot voting provisions.

al if it were shown that— Th 1
designed“: or otherwise. a mum-member .ese 23 cases 3'". extreme._y impel:
constituency scheme . . . would operate to tant m the "31‘3”?“ of 3' results
minimize or cancel out the voting strength {55‘ which would incorporate their
of racial . . . elements of the voting popula- standards into statutory 1375- It [5 ins.
tion. iorrson v. Dorsey. 379 Us. 43: at 4:9 portant to note. for instance. that in

(1965). (Emphasis added.) . these 23 cases. the defendants pre-

Intent has been expressly required
by the Supreme Court as a necessary
element of a 14th amendment equal

vailed 13 times." Thus. a "results"
test would not mean automatic victory
for plaintiffs in vote dilution cases.

  
   

wf-.V_-v————V _——, _._,.. :

protection case only since-1975) It has Also. violations were not proven under
been expressly required in 15th these cases merely by evidence of a
amendment cases only since the lack of racial proportional representa-
Mobile against Bolden decision in tion plus some additional scintilla of
1980. evidence. 'as some critics of S. i992 sug-

Seccnd “effect" standards have gest would be possible under the “re-
oeen used. and are being user: today.— suits" test. Rather. consideration of
the "totality of the circumstances"
was required.” together with a finding
“of an aggregate of these factors." U
It has been pointed out. however. that
not all the factors need be proven in

standards. i.
"SIllffi' ‘

_.__-_. ___—.__—

S 6932

The basic reason {or these past ex-
tensions was that the sole criterion for
determining eligibility for bailout
was—and is. under current. law—
nonuse oi "tests or devices." as deiined
by the act. to deny or abridge the
right to vote. Since the use at such
tests and devices has been illegal in
covered jurisdictions since 1965 and
nationally since 1970. and the avail-
ability oi bailout would mean almost
automatic bailout for most jurisdic.
tions. instead oi toughening the stand-
ards ior bailout. put Congresses have
chosen simply to extend the deadline
for application for bailout. last year.
however. the House faced up to the
task and iashioned a set oi criteria by
which to judge eligibility for bailout.
It then extended the deadline ior only
2 years. in order to give jurisdictions
an opportunity to review and comply
with the criteria. I believe that this
approach is the most reasonable. and i
support it iully. ‘

An additional reason that S. 1992':
provisions are superior to a 10-year ex-
tension is that. under current law. po-
litical subdivisions such as counties.
parishes. and independent citia
within covered States cannot bail out
until their entire State has bailout. S.
1992 would allow political subdivisions
to bail out by proving that they have
met the criteria that their State may
have iailed to meet. For instance.
when a State has objections tiled
against any oi its election laws and

processes under the criteria set out by.

S. 1992. that would disqualify the
State from bailout for 10 years. How-
ever. under S. 1992. political subdivi-
sions such as counties would be able to
bail out independently from the State.

S. 1992 would preserve elements oi
the present law which would preclude
a State from bailout until all of its po-
litical subdivisions had succeeded in
bailing out. This seems fair. since
under our Constitution. States are ul-
timately responsible for their political
subdivisions." As Arizona State Sena-
tor Aliredo Gutierrez recently re-
marked:

To suggest . . . that the state should be
permitted to bailout when its subdivisions
are not clean is to absolve the state oi its ex-
clusive responsibility and to nullify the rela-
tionship between the state and its political
subdivisions."

Again. these provisions go to the
heart oi the issue oi incentive. Ii coun-

ties cannot bailout until the State can'

bailout. and the State cannot bailout
for at least 10 years. the counties have
no incentive to reform their practices.
I! the State can bailout beiore its sub-
divisions do so. the State has no incen-
dve to pressure those subdivisions into
compliance.

It appears to me that 5. 1992's provi-
sions relating to jurisdictional respon-
sibilities would create better incentives
to the jurisdictions involved than
would the 10-year extension. which
would simply extend the current law's
deadline for application until the year
1992.

CONGRESSIONAL RECORD — SENATE

As mentioned previously, 'the only

standard under current law for bailout:

is that the jurisdiction in question not
have used a proscribed test or device
ior a prescribed period. This b clearly
an inadequate standard: it does not
even require that the jurisdiction
comply with the other basic require-
ments oi the Voting Rights Act or. ior
that matter. the 15th amendment. S.
1992 would require. in addition to the

honuse oi prohibited tests and devices.

that a jurisdiction for 10 years:

First. Submit all voting law changes
for preclearance. as provided by the
act.

Second. Have no judgments iiled
against it for violations oi the right to
vote in contravention oi the act or the
Constitution.

Third. Have no consent decrees. set-
tlements. or agreements which result
in the jurisdiction's abandonment at
an allegedly discriminatory practice.

in addition to demonstrating its
compliance with the law by meeting
these and other standards. a jurisdic~
tion would have to demonstrate its
good faith by:

First. Eliminating voting procedures
which inhibit or dilute equal access to
the political process.

Second. Taking positive steps to
eliminate hamsment oi persons exer-
cising their legal and constitutional
voting rights. -

Third. Taking other positive steps.
such as convenient registration oppor-
tunities for all voters. appointment oi
minority voting oiiicials. and the like.

These standards. stringent though
they may be. are clearly achievable. At
least 25 percent oi the covered juris-
dictions. and. possibly more. should be
able to bail out as. soon as bailout be-
comes available in 1984. 1‘. As these iu-
risdictions. which have complied with
both the letter and spirit oi the Voting
Rights Act. are able to bail out” a
strong incentive will be created for less
responsive jurisdictions to comply in
the same manner.

The Dole clarifying amendment. in
addition to including language regard-
ing section 2. also added a provision

which would. in the absence of further '

congressional action. bring the section
5 preclearance requirement to an end
in 25 years. I-‘urther. the provision
calls upon the Congress to reevaluate
the preclearance requirements in 15
years. This is the (list time that a
limit has been put on the existence of
preclearance itseli; previous “ex:en~
sions" have merely moved back the
date for application for bailout. The
25 year period is. I believe. long
enough to discourage any lethargy on
the part oi State and local govern-
ments in complying with the law. Nev-
ertheless. it does create an element oi
security and reasonableness which was
previously missing from the act.

Some have suggested that 3. 1992's
provisions might lead to a situation
wherein bailout suits could be prevent-
ed by the filing oi suits which alleged.
sincerely or not. that violations oi the

June 17, 1.982

right to vote had occurred within the
jurisdiction applying for bailout. 1!
this were the case. it would represent a
serious challenge to the validity of the
bailout procedure: any individual or
group with the money to iile irivolous
suits could prevent bailout indefinite-
ly. This concern. however. is mis-
placed.

The language oi S. 1992 merely
states that no judgment may be en-
tered during the pendency of an
action. illed beiore the baiJOut suit. al-
leging denial or abridgement oi the
right to vote. In other words. the case
could proceed: the entry of the judg
ment establishing the jurisdiction’s
bailout would merely be stayed until
the previously filed suit had come to a
conclusion. Presumably..any irivolous
suits filed prior to the bailout suit
would be thrown out oi court prompt»
ly. and would not unduly delay entry
of a bailout judgment.

. Arizona

Naturally. Mr. President..as an elect-
ed representative. I am concerned with
the manner in which the laws passed
by this Congress aiiect my home. This

is especially true with reierence to the'

Voting Rights Act. since the entire
State oi Arizona has been covered
under section 5 since 1975. In order to
demonstrate my confidence in the res-
sonableness oi the various changes
that S. 1992 would make in the uh I
would like to survey quickly the ways
in which the amended act would aiiect
my home State.

The largest city in the State at Ari-

zona is Phoenix. Since its city council
is elected on the basis of an at-large
electoral system. it has been suggested
that Phoenix would be susceptible to a
section 2 suit under the S. 1992 “re-
sults" standard. Let us look at some of
the factors suggested {or "resulm"
analysis by White against Regester.
Zirnmer against McKeithen and its
lower court progeny. and the House
report on 3.3. 3112.
use mm

The Phoenix city council has 6 mem-
bers. all elected at large. Ii six candi-
dates do not all receive a majority oi
votes in the general election. a. runoi:
election is held. The elections are non
partisan. There is a. slating commis-
sion. the charter commission. which is
quite influential. although not deter-
minative. in who is elected to the
council. Minority candidates have run
and won without the charter’s en-
dorsement. and the charter has en-
dorsed legitimate minority candidates.

Phoenix is a city of approximately
800.000 persons. Hispanics constitute
about 14 percent oi the population.
and blacks make up about 5 percent oi
the population. The Hispanic popula-
tion is concentrated In the South
Phoenix area. as is the black popula-
tion. The Hispanic population has. in
recent years. been concentrating in
the South Phoenix area. while blacks
have been dispersing to other parts of
the city. . .

 

June 17, 1.982

The South Phoenix area includes
quite a bit of lowdncome housing. to-
gether with some light industry and
warehouses. There have been allega-
tions of inadequate services to the
area. such as transportation and road
surfacing. Further. the use of an Eng~
llsh-only ballot until the 1975 amend-
ments to the Voting Rights Act con-
tributed to a language barrier between
Hispanic in the area and Anglos else-
where. g -

eoucr 3mm ax-ijacx man

The current zit-large electoral
system was adopted in the late forties
in response to a strong reform cem-
paign against ward politics and corrup-
tion. There is some evidence to india
ate that corruption of city officials
was a significant problem prior to the
imposition of the present system.

man or mourn cannula m
. While proportional representation is

not required by the “results" test. the
ability of minority candidates to run
and to win is one among the relevant
factors to be considered under this
standard.

In 1965. 1,967. and 1969. Dr. Morrison
Warren. a black. and Frank Benites. a
Hispanic. were elected. In 1971. Calvin
Goode. a black. and Armando DeLeon
were elected. In ‘both 1973 and 1975.
Goode and Rosendo Gutierrez won. In
1977. Goode was reelected‘while Gu-
tierrez who in second in the mayoral
race. No other Hispanic candidates
mme in eighth and nineth running for
council seats. In 1979. Goode won and
Gutierrez lost a runoff election
against an Anglo. In 1981. Goode won
runoff election against an Anglo.

Both Gutierrez and Goode proved
successful as candidates when they
were endorsed by the charter commis-
sion and when they were not endorsed.
' m or rest orscammanon

While allegations have been made of
racial discrimination in eduction. city
services. and the like, no de jure dis—
crimination has been adjudicated. it
may be reasonable. however. to attri-
bute some of the economic depression
of the South Phoenix area to past pur-
poseful discrimination. Such discriml-
nation has largely been eliminated in
recent times. due mainly to the elec-
tion of the previously mentioned mi-

CONGRESSIONAL RECORD — SENATE

white voters and because of the past
effects of English-only registration
and voting procedures. register and
vote at a level lower than that of
white voters. Assuming that this level
is approximately two-thirds that of
white voters. every minority candidate
elected since 1965 would have had to
received at least half of his or her
votes from white voters. In the case of
extremely succecful candidates. such
as Gutierrez and Goode in 1975. the
proportion probably approached two-
thirds. This shows decisively that
there is not a monolithic bloc vote
against. minority candidates. Were
such bloc voting to take place. the ma-
Jority runoff provision would likely op-
erate to exclude minorities. The fact
that minority candidates are elected
with the majority runoff provision is a
strong indication that no extremely
‘polarized bloc voting is taking place in
Phoenix.
amusements:

Racial epithets and referencm are
not a part of city politics in Phoenix.
and have not been for the past few
decades.

The following are some of the more
specific election mechanisms evaluated
by Zimmer and Regester.

men or Access to sumo

Morrison. Benites. Goode. DeLeon.
and Gutierrez were all endorsed at one
time or another by the charter com-
mission. Furthermore. Guttierres and
Goode have proven successful in the
absence of charter endorsement. Thus.
charter endorsement is both accessible
to minorities and nonessential to their
success. -

mm rosrs

Not used. .

m-smou—snor vo-rzxc mound:

Not used.

moan—r V011 mum

While a modified majority vote re-
quirement is in operation in the Phoe~
nix city government. it has not pre-
vented minority candidates from being
elected.

In summary of the situation in
Phoenix. minorities do have access to
the political process. They have been
successful both within and outside the
charter commission's slating proce-

dures. As minority candidates have

 

nonty candidates 11} Phoemx and to been elected. city responsiveness to ml-
the 919913”? 0‘ minority candidates nority—for example. south Phoenix—
irom Phoenix to the State legislature. problems has improved. Minority can-
These leaders have worked to eliml- didagu have consistently garnered
mic. or at least'substantialiy reduce. white votes in their bids for office.
purposeful discrimination. Currently.. The ultimate :35; under the “re-
for instance. of the approximately 30 sults" standard remains whether mi-
1321'513101'3 from Phoenix districts. norities have a fair opportunity to par-
there are 5 Hispanics and 2 blacits. ticipate and to try to elect candidates
mac vamw of their choice. In those cases where
An examination of voting patterns plaintiffs have successfully invoked
in city elections reveals that it is virt - white. blacks did not just lose out in
ally impossible for the previous men- the electoral process: they had not yet
tioned minority candidata to have really become part of the process.
been elected without a substantial They had little realistic opportunity to
number of Anglo votes It is reason- assert their power through the process
able to assume that minority voters in in combination with white voters.
Phoenix. because of, the fact that they They were actively opposed by the
are. on the average. less affluent than white electorate and were condemned

S 6933

to remain impotent for the foreseeable
future. in the absence of judicial
relief. In these cases. it would have
been no different if the black voters
had all stayed home.

This is not the mse in the city of
Phoenix. ' ' .

1 an: further heartened. in evaluat.
ing the effects of 8. 1992 on Arizona.
by the strong support of S. 1992 by of-
ficials and by private individuals from
my State. Governor Bruce Babbitt has
stated—-

I support enthusiastically the steps taken
by the House to strengthen the Voting
Rigth Act."

State Senators Alfredo Gutierrez
and Jaime Gutierrez have both ex-
pressed to me their support of the bill:
Senator Alfredo Gutierrez stated—

I am very pleased to. . . convey my sup-
port of S. 1992.“

ladditlonally. Betty Shoenhair. push
dent of the League of Women Voters
of Arizona. and Gordon Jensen. State
Chair of Common Cause in Arizona.
have indicated to me their strong sup-
port of S. 1992."

Equally persuasive is the support of
two fine organizations with members
in Arizona. These organizations are
the National Conference of State Leg-
islatures. of which the Arizona State
Legislature is a member organization.
and the us. Conference of Mayors.
Not only are Mayor Margaret fiance
of Phoenix and Mayor Lew Murphy
both members of this organization.
they are both members of its board of
trustees. The executive director of the
Us. Conference of Mayors. John Gun-
ther. noted that the conference urged
“support [of] S. 1992 . . . In particuo
lar. we urge no change in section 2.
which reinstates the ‘results' test as
the basis for determining whether a
jurisdiction is discriminating against
minorities." " Similarly. David Neth-
lng. chairman of the State-Federal As-
sembly of' the National Conference of
State Legislatures. noted that “we can
support the language included in
amended section 2 of S. 1992 . . . " “
If the “results" test would actually
lead to a requirement of racial propor-
tional representation; it is these
groups that I would expect to speak
out. Their support of S. 1992 strength-
ens my resolve that this bill is the
proper and appropriate means to
extend and strengthen the Voting
Rights Act. _

Mr. President. a this country moves
through this present era of hard eco-
nomic fortune. there is sometimes a
tendency to feel that we can. or
should. deemphasize civil rights as a
governmental priority. There is a feel-
ing that other tasks are more impor-
tant. that we can return to the Job of
insuring equal opportunity sometime
in the future when some of our other
problems have subsided. This drift
away from our national commitment

_to civil rights must be resisted at all

COSTS.

' 86934

There are a number of logical falla-
cies in these arguments to let our civil
rights efforts subside. For instance. it
seems that our economic and internao
tional crises never truly abate: our po-
sition of international leadership as-
sure: that we will always be in the
center of controversy. Further. when
our commitment to civil rights abated
for a month. or a week. or even for a
day. benefits of past process are lost
which take a great deal of time and
effort to regain. There is a false econo-
my in letting up in the fight for civil
rights.

The most disturbing fallacy of all.
however. is the idea that we can some-
how "afford" as a nation to give up
our commitment to civil rights. This
amounts to saying that. in order to
fight for America. we must give up an
important part of what makes Amen
jca worth fighting for. that we must
surrender our national commitment to
freedom and equality for all of our
citizens. Such a statement is chilling.
We must never. allow such reasoning
to guide our national policy. We can
never “word” to give up civil rights as
the heart of American greatness.

I return now to where I started. Mr.
Praident. to the idea that. at the
heart of all civil rights is the right to
vote. This right. more than any other,
promota the concept of equality.
Every person has one vote. and one
vote only. This right more than any
other assures that other fundamental
rights will not be arbitrarily stripped
away by unresponsive lawmakers. I
have today outlined the reasons why I
believe that S. 1992 Ls essential to the
preservation of the right to vote and
to participate meaningfully in the po-
litical process. As a result of the Dole
clarification language. the purposes of
S. 1992 may now be recognized with-
out reference to such issues as propor-
tional representation and quotas. I
hope that all my colleagues in the
Senate will Join me. in enthusiastic
support of S. 1992.

romom _ ' .

' Yick We 1. Hopkins. 118 0.3. 356 (13.381.

' Statement of Archibald Cox before the Com
tution Subcommittee. p. 1. Feb. 5. 1982.

' Home report on EB. 3112 p. 1.

‘ Southwest Voter Registration Project report.

‘ House report on ER. lll“. vu- 13-29.

IStatement of Governor Bruce Babbitt to' the
Constitution Subcommxttee. p. 3. Feb. 3. 1981

' Hearings on s. 1364 before the Committee on
the Judiciary. US. Senate. nth Conn-es. ls: so
non. pp. 131-192 (1965).

- 1a.. It p. m. ,

- mini-name v. Dam in us 2:: (ms).

-- :79 us 433(1965).

II 1134 U5. 1'3 (1966).

.. :79 on in (l911).

um on 7:5(1973). .

" Howard 1. Adonis County. 453 P'. :d 435 (5th
Cir. ”72!: Zimmer v. McKrimrn. 485 F. 2d 1231
(SUI cu. mar. Turner v. sierra-mm. «so P. is in
_(5th Cir. 1973): Moore v. Lenore County Board o]
Election Commissioners. 502 F. 2d 621 (5th Cir.
1970: Robinson v. Commissioners Court of Andre-
m County. 50: P. as an (3th Gr. 15'“): Erodes v.
Rapids: Parish Police Jury. so: P. 2:: 1109 (Sin on.
may: Gilbert v. Stem 509 p. :a 1:39 (in: cu.
ms): Wallace v. House 515 r. 24 no (so: Cir.
1913): Perry v. City a] Cyclamen 515 P. :a as: (m:
Cir. 1975): Fen-won v. l’ina Peru/i Police Jury. 523
r. :a :92 (501 Cir. ms): Nessa it. saw. 533 r. as
not (5th Cir. 1318): Ali-Gill v. Gadsden Count:

..-._..._-.. (—7 _ V_—_,_........._. _-...

CONGRESSIONAL RECORD — SENATE ,

Commission 51: P. 24 21"! (5th Cir. 1916): Panto! v.
m m Soloed Board. 538 l'. 24 101 (5th
Cir. 1978): Paw! V. Grav. 53! P. 2‘ 1108 (5th Cir.

1916): Dec-id v. Garrison. 533 P. to 921 (5th Cir.
1911): Haida: v. Joseph. 559 P. 2:: 1185 (51h Gr.
1911): Parnell v. Baotou Par-uh. School Board. 563
I. :4 no (sin Cir. ism. Kim v. Board olSuoer
visors cl Hands County. Mississippi. in F. 2d 138
(3th as. 1911‘): LL: v. Board of Supervisors of I”
as: County. 571 P. 211 ’51 (SUI Gr. 19‘“): Kendrick
v. Welder. 52'! r. 14 « (1th Cir. ms): Vollia v.
limpet 51! r. :d m Hus 0).. 1:15): Dove v.
Noon. 5:. P. as 1153 flu: Cir. l9": slack 7am
narwnusrcei (mainlml.

" «s P. to 1291 lath Cir. 1973).

"See a. under footnote 14 with “in

"while v. hauler. u: on. m.

. " Zimv. Alum to: P. 1‘ l3“.

II 1‘ .

"lodeerepcrtonliJLJllZp-Jfl.

'" Turner v. Edema-n. 490 F. as 191 lath Cir.
in”: Wallace 1. House. ii: 7. “.1 619 (so: Cir.
1915): David a Gan-lama 551 P. as m (Stb Cir.
1917). -

‘- Soam Carolina 1. Kannada. m on. 301
um: Remy. U.S.. loos. C72. 1546 i150).

“South Carolina v. swam 383 on 301
(1966): 3mm 1. Honda. 384 on. 6-H (1965):
Oregon 7. Alum-ILL 100 US. 112 UNI”.

" may. 0.8.1003. CL 1546 (19am.

" DoereConcini-Gnaaley amendment to S.
1991 introduced Mar 4. 1982. 9.;

“ Id— at B. 6-1. . _

"Statement of Armona State Senator Allredo
Gutierra to the Constitution Subcommittee. Pen.
25. is". p. .5. ~

“ Joint Center for Political Studies. lne. study.

“Statement by Governor Bruce Babbitt to Cou-
atimtion Subcommittee. Feb. 1 1981 p. 3.

“Statement at Arman: state Senator Alfredo
Gutierru to the Constitution Subcommittee. Pen.
23. “£2. D- L '

The PRESIDING OFFICER. The
Senator from California is recognized.

 

‘ULYSSES" GOES HOB/[E

Mr. EAYAKAWA. Mr. President. I
wish to make a. few remarks based
upon a story from the Chicago Tri-
bune of today. June 11'. I make them
as a former professor of English
before I reiormed and became a politi-
cian. The. story is from Dublin. tre-
1and. The headline of the story is
“Ulysse- Is Home. Ireland Hails
Joyce." ‘ .

DUBLIN. lawn—Ireland made its
peace Wednesday with James Joyce. the
emigre writer it once shunned. by marking
the centennial year of his birth with cele-
brations that included an unprecedented
daylong radio broadmst of "Glyn-ca".

Mr. President. “Uh/sea." for those
who are not familiar with the novel. is
a huge. long novel of a day in the life
of one fictional character by the name
of Leopold Bloom in Dublin. It con-
tained language which. at that time.
was not permitted to be printed. so the
first edition of James Joyce's "Ulys-
ses" was published in Paris.

As an eager young graduate student
in Montreal at the time. I remember
we got hold of the Paris edition and
read f‘Ulyssec" as we had read also
other books of James Joyce’s. because
we knew that he was one of thweat
writers of our century.

So they had a day-long broadcast of
"Ulysses" on the Dublin station. This
was the important thing.

131:: Dublin establishment once vilified
Joyce. author of the scandalous novel that
recounted the flctional events of June is.
3904. a day in the life of ti-agi‘comic Dublin-
er Leopold Bloom '

June 17, 1982

But things are different now. 41 - years
after Joyce's death in Switzerland.

On Monday. President Patrick Hillery
opened the 5th James Joyce Symposium for
eminent scholars. critics and writers in Duo
lio's Mansion House. the lord mayor‘s rosi-
dence.

On Wednesday. Hillery was unveiling a
bust of the writer in St. Stephen's Green
opposite the old university once attended by
Joyce. who was born in Dublin in 1882.-

A Leopold Bloom breakfast. kidneys in
boner. was on the menu at several Dublin
hotels. -

Incidentally. when you read the
novel. the little account of frying
those kidneys in butter is one of the
memorable scenes.

Radio Elreann. the state radio network.
began a continuous 2t-hour reading of
“Ulyssa” at 6:30 up. with extinct: to be
relayed to stations around the world.

Five Dublin theaters were prsenting
adaptations of Joyce works. including. the
reenactment of street scenes from "Ulys-
ses'.‘ at the loations and times of day they
occurred in the novel.

Hollywood's Surges Meredith was In
town directing actress Honnula Flanagan in
a one-woman show at the Gate Theater.
“James Joyce‘s Women."

Prof. Hugh Keane: of Baltimore's Johns
Hopkins University unveiled a plaque at a
home chosen for Bloom's "birthplace." The
plaque said: _

“Here in Joyce's imagination was born in
May. 1855. Leopold Bloom—citizen. hus-
band. lather. wanderer. reincarnation of
Elysee."

Experts‘lnvited by the government for the
Joyce Symposium include America’s Rich-
ard Elmann. biographer of Joyce: Brittsh
novelist Anthony Burgess. who wrote a
radio muSical on Joyce for the centenary:
and Argentine writer Jorge Luis Borges.

Ellinann noted that Joyce once said he
wrote the enigmatic "Finnegan: Wake” to
keep the critics-arguing for 300 years.

This is the 100th anniversary, Mr.
President. of the birth of James Joyce.
So when your great novel is banned in
your own country, just take comfort in
the thought that 100 years after your
birth. they will celebrate the fact of
your greatness as a writer by broad-
casting your whole darned novel over
national networks.

Mr. President. it gives me great
pleasure to report this fact about
James Joyce. who was. indeed. a. very
great writer.

 

SEX IS NOT A SPECTATOR
SPORT ‘

Mr. HAYAKAWA. Mr. President. I
should like to go on and say something
more about Wall Street and pornogra:
phy. The cable TV and proliferation of
sex films is a subject of" much concern.
The Wall Street Journal reported in a
story the other day an incident under
the headline "Wall Street May Be
Ready for Porn." Let me pass onto my
colleagues here my thoughts on the
subject.

The current invasion of sex films
into American homes via cable and
pay television has revitalized the le-
gitimate concern regarding pornogra-.
phy. privacy and the first amendment.