Correspondence from Atwell to Guinier

    td{
t Senator Harcn. The greateet 

-prob_lem tt "t. ! t ""e 
with the pro

posed results or effects test is that I cannot identifv a"v U""ijfo.
g9_mg3rison by ,which evidence is to be evaluated, st ort"of p.opo._
tronal representation standards.
. Now, each time that I have tried to ascertain the threshold oues-tion that a court must ask itself in evaluating the evidence;l ir;;;

ug9l, tola bv the witnesses that the court musT co""iaeilLe t"kiiiit
of the circumstances.

what I am interested in is the standard that the evidence must
:,"lisfy, not the.scope 

-q! 
tltg eviden-ce. Would yo,, ti"ue .r,y-r.i"*s on

this_ particular issge, Mr. Younger?
Mr. YouNcnn. My view is t-hat the only way to applv the ,,ef_

fgcts" test is what f think iou, Se""to.,-iia'il*i;d'iGt-iook at
the. racial composition of tlie eiected body and 

"o-pJ" it *itn trr"racial composition o{ t-he electorate, anii if they ire roughly the
sarne, you pass, and i-f they are different, you don-'t pass.

The consqluence of tha[, in my mind, witt Ue a qriota svstem.
senator Hnrcn. Then you beli-eve that the conse'quenc6 wo,rid irr-

evitably be the implementation of a system of prolportio."i ."p."-
sentation?

Mr. YouNcnn. Yes. That is what I mean by a quota system. r

o Looking at the other side, it eeemg to T" that the obvious outsrde

fi-it "po" 
the meaning of tle -'results" test is fixed by the pro-

posed concluding sentence in S. 1992:

The fact that members of a minority group have not been elected in numbers

*;;itilir"-;oup's proportion of the ioiulat:ion shall not, in and of itself, consti-

tute a violation of this section.

I submit that this language surely should-allay any fear that the

"fflciof 
tt e ,.results" telt would be to mandate a system 9f propor;

;i;il r"p.""""t"tion. I realize lhat ttre Attor-ney General testifred
;iil;t:;otfu t.* or proc-edure which produces election results
;ii;;6ii to miiror the pbpulation makeup in a particular commu-
;ity ;;td be ,ulnerable-to.legal cha]Jenge un-der-section 2' But
*iii rtt due respect to the Attorney General, I submit that that
statement is plainly and demonstrably- wrong'- Th; final s'entence says that that ihall not be enough. I cannot
imagine any court simply disregarding tfe final sentence as it
;;id--;p#r in r".iion l. F,r"th]e"'',or6, the earlier ca.se -Iaw the
amendments to section 2 were intended to revive and that will
;;;;;;h;i; -"""i"i, as I-understand it, explicitlv.and repeatedlv
8""".t" that it is notZnough to prove a mere-disparity between the

"Gb;.-;i minority residlntE dnd the number of minority repre'
sentatives-o

/l

7 u:: - /-uft, /,t ^
O I believe that it would not be reasonable for a federal

court, under any circumstanceE-that I can imagine, to apply
the language of the Rodino bill in such a $ray as to reguire thatthe percentage of racial and language minority representation onapplicable city councils, school boards and/or 1egislatures ap-proximate the racial mix of the citizens it repreaents. I say
this for two reasons.

First, I find it whoIly unreasonable to suppose that any
court r.rould dictate or limit the racial character of representa-
tives to be chosen at an election.

Second, I believe that the Rodino proposal would not makeproportional representation a per se test of the legality of an
electoraL arrangement. Under controlli-ng Supreme Court decisions
the denials or abridgments of the right to vote on account of
race or color that violate the Fifteenth Amendment involve pur-
poseful racial discrimination. Section 2, if altered as proposed
in the Rodino amendment, is apparently intended to authorize
courts to find illegality by inference from the effects under
circumstances in which that inference is hrarranted. Bare proof
that the number of minority representatives elected is not pro-
portionate to the number of rninority voters would not be sufficien
per se to establish a violation regardless of the circumstances.

If there is the slightest uncertainty about the answer
to the question posed, the risk could be elininated by including
an appropriate explanation in the conunittee report. -

oa

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