Attorney Notes Pages 1426-1429

    ."#1,{,,'6,* ,4zB

voters Predomj'nate so that the blacli vo'lers constitute
fort)' percent of '-he voters in District A, forty Percent
in Dj.strict B and twenr-)' percent :.n District C. No
biack comi.ssicne: has ever been el.ected, but the poli-
tical parties that noninate canCidates regularly con-
sult leaders of the black cornnunit;r and candidates
no+- infreguentl)'pitch part of'.heir camPaigns to the
specia) needs of black voters.

on rhese tacts alone the presen+. ilstricting would
not be unlawfui even under the p:icF,ased amendrnent
to Section 2.r Evidence of the absence of propor-
ironate representation, even whe:'e prcrportionate
reF,r:esertation could easi 1!' be p:c','rded, is not
a)one enough to prove a viola+-ioi. Tc, si-ate the
neanj.ng of the proposed amendn,en'. as clearly and
precisely as possible in a single sentence, I would
e>:pect the courts to inierpret Section 2, as amendeC,
to prosclibe any law relatinq to votinq that had the
effect, in its particular context,of substantially
and systematically exciuCing vcters of a particular
race fron egual opportunities for meaningful partici-
pation in the democratic process. I underrtand this
to L.e the meaning of the wr:rds "results in Cenia] or
abriCAement of the right tc vote on account of race
or color. "

Thus, Section 2, if amended as proposeC by S. 1992, wou).C

prcscribe any particul.a:' form of gcvernmeni-, iistricting

or representation without regarC to the par'.iculaI circuns.,ances.

Any form, including elecr-rons at 1arge, may operate rdithout

racial discrimination in the circums'.ances of a partj.cuLar time

and p1ace. Almost any forrn may operate or be manipulated :.n

the ccndltions of a particular time and pLa:e i.r such a wa\, +ha'

there js an obvious, discrir',inator]' viciai:cr, of basic democratic

rights. Simj.1arly, f aiLure +-c elec+- ner,bers of a minorit!' group

prcportj-onate to the groug's nurrbe:-s L1., the total popul.ation

woulc not in and oI itse^: constitute a Iicr a+-]on. Vcl-ers irr a

minorit!, -qroup may have exacci.1, the same opPcrtu:.i+-ies for
participation as an)'cther voters, e\rell +-i:.utrl rro members of tne

group are electei 
"o 

offlce. The Irrinorj-i! r.ay nct vote as a

bLoc. ?he mrnoritv may vcte as a baoc Elur r,ar:e iis rn:tuence

felt in the selection of non-ninorit-v canc:oates for eiec+_i.orr,

in f::aning their programs ani policies, ani in support of one

or more candidar-es against their opporents, h'hether a par..j-

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rIf additional
r.rere added, then

facts suffrcient
the result rrould

.-c p:-cr,'e systenatic exclusion
be dif f e::ent.

L4n

cular form of government, districting, representation or voting
operates to cancel out or dilute the potentiat voting strength
of racial elements of the population to such an extent aa to
constitute a violation of Section 2, as proposed to be amended,

will depend upon appraisal of all the relevant factors in the
case, including the severity of the dilution and the weight of
any other purposes served by the measure.

In determining what factors are to be considered and when

those factors add up to denial or abridgement of the right to
vote on account of race or color, the courts ril1 have the
guidance of a sizable body of precedent in the case law developed
prior to 1980.4



7Uz(,-
O z. The other obvious, outsiide limit upon the meaning of

the "resu1ts" test is fi'xed t)y the new concluding sentence

proposed bY S. 1992:

The fact that members of a minority group have not
been elected in numbers equal to the group's.propor-
tion of the population shall not, in and of itself'
constitute a violation or! this section'

This language should allay any fear that the effect of the

"resuIts" test would be to mandate a system of proportional

representation. The Attorney General festified that "any

voting law or procedure which produces election results that

fail to mirror the population malie-up in a particular coflununity

v:uld be vulnerable to legal challenge under Section 2"'

with all due respect, I submit that that statement is plainly

and demonstrably wrong-

un

The new final sentence to be added to Section 2 by S. 1992

explicitly and specifically provides that proof of ,'election

results that fail to mirror the population make-up in a

particular conununity" shall not be sufficient -- shall not

be sufficient -- grounds to invalidate a voting law or practice.
The earlier case law that the amendments to Section 2 are

intended to revive and that will govern their meaning explicir-ly
and repeatedly asserts that'it is not enough to prove a mere

disparity bet!'reen the number of minority residents and the

number of minority representatives." Zinuner v. F{cKeithen,

485 F. 2d, 1297, 1305 (5th Cir. 1973). see also t{hite v. Regester,

412 U.S. 755,765,766 (lg73l. (,,To sustain such claims it is
not enough that the racial group alregedry discriminated against
has not had legislative seats in proportion to its voting poten_

tia1. " )

Two examples illustrating conunon Bituations in forms

exaggerated for clarity further illustrate the point:

0*l;

- The voting population of a populous county is 75percent white and 25 percent btack. fhe -ounty isgoverned by a five-rnember Board of Commissioneiselected by districts. If some theory of raciallyproportionate representation were appLied, there
should be one black Conunissioner. ln fact, the blackportion of the population is not concentrated in a
compact area but a gerrymander could be constructedthat $rouLd put enough black people in one district
to elect a black Comnissioner if the votes pretty
closely followed racial lines. In fact, the disaricts
are compact and contiguous and no black person has
ever been elected Commissioner.

On these facts alone there would be no violation of
proposed Section 2, because it does not call for ra-cially proportionate representation.*

- The population of a populous county is seventy percent
white and thirty percent black. uuch of the black popu-
Iation -- threnty percent of the total populatlon of
the county -- lives in a compact area in the easternpart of the county. The county is governed by a five-
member Board of Commissioners etected from fiie dis-tricts ma(le up of compact and contiguous areas. Thedistrict lines divicle the compact aiea in which black

*rf aclditional
were added, then -lacs sufficient to prove systematic exclusionLrrE r\ult vould be different.