Jackson v. City of Lynchburg, VA School Board Brief for Appellants

    57 Me

In conclusion, I will say only that I do not support these changes in the law
as part of an attempt to undo the good that has been done in the last seventeen
years. Rather I maintain that the protection of the rights of minority group
members is foremost in my mind, because racial prejudice and discrimination
are abhorent to me both politically and personally. If we allow the Voting
Rights Act to become an insurmountable and inflexible barrier to local and state
responsibility, then I believe \xe will have frustrated the intent of its authors
and the Congress that enacted it.

The CHAIRMAN. Does anyone else have a statement to make? The

Senator fmm Kansas. ’ ,
. Senator DOLE. Mr. Chairman, I have a statement that I would make
in connection w1th the amendment I intend to ofl'er, but I want to
proceed in any way the chairman Wishes. If amendments are in order,
then I would be happy to——

The CHAIRMAN. If all the Senators have made statements who care
to, I thmk we ought to proceed With amendments so we can expedite
the blll. I want to tell Senator East and others we are not rushing this
blll. We are gomg to give a chance to everybody to make a statement,
offer amendments, and we want to proceed In an orderly manner; but
we do not want to have delay. I Just wanted to explain that p051t10n to
everyone. \Ve are gomg to be falr to everyone. The Senator from

'9 Senator DOLE. Thank you, Mr. Chairman. Again, I want to express
my thanks to the chairman for his patience and for his willin ness to
meet with us a number of times, a couple of times on Friday, in elping
us take, as the Senator said, a step in the right direction. Maybe it
does not go as far as some would like. Maybe it goes a bit further than
others would like. But it is an honest effort to try to compromise dif-
ferences in a very controversial and emotional subject, and that is
voting rights for Americans. .

I certainly have the highest regard for all of my colleagues on this
committee. I certainly appreciate the statements by Senator Denton
and Senator East. I would hope that when the proposed compromise
is fully explained, as it will be, that we might have the unanimous sup-
port of every member of this committee; if not on the amendment,
then on reporting the bill for Senate action.

Based on that, I would just like to go back and review to some extent
what has happened. This bill has been around for some time. The
House bill passed the House b a vote of 389 to 24. Now, some would
say, well, maybe there would e more votes against it; but it was so
one-sided that everybody except for 24 Members decided to vote for it.
The next step was introduction of that House bill by Senators Kennedy
and Mathias with, I think, at that time 61 cosponsors, now it is about
66 cosponsors; 26 of those are Republicans, and 40 are Democrats.
So, it is a strong bipartisan effort and a demonstration of broad bi-
partisan support for the House bill. I say this as a matter of back-
ground to let members know that I assume without any change the
House bill would have passed. There were some who were keeping score
saying that on this committee there were nine who supported the
House version, seven who opposed it, and two who were undecided.
Now, the Senator from Kansas was not a cosponsor of the House bill.
I had not had an opportunity to look at it. We were very busily en-
gaged in budget and tax matters. It seemed to me that I had some reser-

58

vations that I thought I should take some time to reflect on and did not
cosponsor that legislation. But I do believe that over the years my
record on civil rights is a good record. I have some credibility With
people in the Senate and this committee and with ciVil rights leaders
who were pushing for the House bill.

In the course of discussing this bill—and I know that the Senator
from Utah spent countless hours in hearings, as did other members of
this committee, and I commend them for that; and I know of the strong
views they hold with reference to intent and results. I do not, say, quar-
rel with that, but I will try to explain in a minute why I believe that
we should move quickly on what i will offer as a compromise for my-
self, the Senator from Arizona, Senator DeConcini; the Senator from
Iowa, Senator Grassley. And then the original sponsors of the major
provision have joined in the compromises, Senators Kennedy and

Iathias, along with, I think, Senator Metzenbaum, who has an impor-
tant provision in that bill.

I would like to include in the record before I give my statement a
statement by the President supporting the compromise because I think
it indicates the President’s commitment in this area. I would only say
that he indicates in the last paragraph:

The all-important goal now is to enact an extension of the law as quickly as
possible so that we can put it into effect and assure all of our citizens that .
we are committed to protecting their most sacred rights. As I said in my state-
ment of November 6, the right to vote is the crown jewel of American liberties,
and we will not see its luster diminished.

I would say to some who were urging the White House to make such
a statement that it came within 1 hour after the press conference yester-
day. The Senator from Kansas, I guess it is fair to say, knew it was
coming but was not in a position to announce it at the press conference.
In any event, that is an indication of the President’s commitment and,
I think, indicates widespread support.

I can also indicate that other Senators who did not cosponsor the
legislation, such as Senator Goldwater and Senator Gorton and others,
have now indicated their support for the compromise and, I believe,
will be doing so publicly before the day is out. That will be a fair
number of Senators on the Republican side. I understand there may be
some on the Democratic side who will express their support for the
compromise.

I would say at the outset that supporting the compromise does not
indicate that everybody is totally satisfied with the final product.
There are some who have reservations that we do not do enough, as I
said earlier, and some will probably—and I certainly respect that
right—attempt to amend the compromise in the committee and on the
Senate floor.

As the members of the committee are aware, late yesterday after-
noon I along with Senators DeConcini, Grassley, Kennedy, and Metz-
enbaum and Senator Mathias, who could not be there, announced that
we had worked out a compromise on the matter now under consider-
ation. The compromise is the result of extensive negotiation and dis-
cussion with our colleagues on the committee as well as with leaders
in the civil rights community. I believe that, as I try to count the
present support for the compromise, there are about 13 members of

 

' 59

this committee who will support the compromise. Hopefully, that
number Will grow before a vore is taken.

In addition, as I have indicated, the compromise has received the
endorsement of the I’i'esident. The President, I think it is fair to say,
does recognize that there are some concerns before the committee with
reference to bailout provision. But generally it is a strong endorse-
ment of the proposal.

Before getting into the specifics, 1 would like to share a few general
comments about the Voting Rights Act. I would certainly like to add
my name to everybody else in this committee regardless of their view
on the compromise who have acclaimed the act as the most effective
piece of ciVil rights legislation ever passed by Congress. In the past,
I have supported measures designed to extend and strengthen this leg-
islation. I hope that I can be of some help in this Coongress.

In addition, I think it is important, and I share everyone’s concern
that we should not rush the legislation; but there are a number of mat-
ters that must be dealt with between now and the first of J line: for
example, the debt ceiling for example, the defense authorization bill
that is on the floor; the budget resolution. There are a couple of op-
portunities, notwithstanding that rather heavy schedule, where the
Senate might consider this legislation. It is also my understanding, I
would say to Senator Denton, that I entered into this compromise on
the firm assurance that the House would accept the compromise. that
we would not go to conference and have it watered down. If that hap-
pens, the Senator from Kansas is going to have some serious reserva-
tions, as I had about'section 2 of the House-passed bill.

I hope it is fair to say that there has been contact with leaders in
the House. It is my understanding, unless there are amendments
adopted that could not be acceptable, that at least the language of the
compromise would be accepted by the House and might even avoid the
necessity of a conference altogether. I think that is a matter that ought
to be fully understood.

In August key protections of the act will expire. That is another
reason, 1 think, that we should use deliberate speed where we can.
There is a clear mandate from the American people; there is no doubt
about that. I think that is another reason we should act promptly.

With regard to the compromise itself, we are all aware that the
most controversial aspect of the committee’s consideration of S. 1992
relates to section 2 of the Voting Rights Act. Section 2 lies at the heart
of the act insofar as it contains the basic guarantee that the voting
rights of our citizens should not be denied or abridged on account of
race, color, or membership in a language minority. In the 1980 case
of Mobile v. Bolden, the Supreme Court interpreted section 2 as pro-
hibiting only intentional discrimination. The Mathias/Kennedy bill
would amend section 2 to prohibit any voting practice discriminatory
in result. The bill recommended by the Constitution Subcommittee,
however, would not amend section 2, thus leaving the intent require-
ment of the Mobile decision intact. _

Proponents of the results standard in the Mathias/Kennedy bill
persuasively argue that intentional discrimination is too diflicult to
prove to make enforcement of the law effective. Perhaps more 1m or-
tantly, they have asked, if the right to exercise a franchise has een

93-706 0 — 83 — 5

60

denied or abridged, why should plaintiffs have to prove that the depri-
vation of this fundamental right was intentional. On the other hand,
many on the committee have expressed legitimate concerns that a re-
sults standard could be interpreted by the courts to mandate propor-
tional representation. That is the matter that Senator East referred to
and, I think, properly so. However, it has been repeatedly pointed out
that prior to Mobile the courts used a legal standard which did not
require proof of discriminatory intent and that the use of the legal
standard did not lead to court-ordered proportional representation.

The supporters of this compromise believe that a voting practice or
procedure which is discriminatory in result should not be allowed to
stand, regardless of whether there exists a discriminatory purpose or
intent. For this reason, the compromise retains the results standards of
the Mathias/Kennedy bill. However, we also feel that the legislation
should be strengthened with additional language delineating What
legal standard should apply under the results test and clarifying that
it is not a mandate for proportional representation. Thus, our com-
promise adds a new subsection to section 2. which codified language
from the 1973 Supreme Court decision of White v. Regeater. White
was a controlling precedent for voting rights cases prior to the con-
troversial Mobile decision.

The new subsection clarifies, as did White and previous cases, that
the issue to be decided is whether members of a protected class enjoy
equal access. I think that is the thrust of our compromise: equal ac-
cess, whether it is open; equal access to the political process; not
whether they have achieved proportional election results.

The new subsection also provides, as did this White line of cases, that
the extent to which minorities have been elected to office is one cir-
cumstance which may be considered. But it explicitly states—let me
make that very clear—in the compromise that nothing in this section
establishes a right to proportional representation.

Another issue which has been the focus of debate in the committee
concerns a preclearance requirement of the Voting Rights Act. Pur-
suant to section 5 of the existing law, certain States and political sub-
divisions with a history of discrimination are required to preclear vot-
ing changes with the Department of Justice or Federal District Court
in the District of Columbia. In August of this year, many of these
jurisdictions will be eligible to bail out of this preclearance require-
ment. There is virtually unanimous agreement among the committee
that the preclearance requirement of the act should be extended. There
has been, however, considerable disagreement as to how this should be
done.

Under the Mathias/Kennedy bill, jurisdictions could begin bailing
out of the preclearance requirement in 1984. but to do so they would
have to meet new tough bailout criteria. Under the subcommittee bill,
jurisdictions could not begin bailing out until 1992. But in 1992 they
would only have to meet the bailout criteria of the existing law, which
is simply that they have not used a test or device to discriminate since
1965. That is a rather major difference in the two approaches.

We believe that the approach in the Mathias/Kennedy bill on this
issue is preference to that of the subcommittee. I might say that this
was a matter that was discussed in great detail on the House side. An

61

amendment there was put together by Congressman Sensenbrenner and
Congressman Fish of New York. That was accepted as a compromise
in this particular area. Further, under this approach the basic measure
of eligibility for bailout is a jurisdiction’s good behavior, while under
the subcommittee bill it is essentially a mere expiration date.

For these reasons, the compromise retains a new bailout criteria of
the Mathias/Kennedy bill but with one significant change. Under the
Mathias/Kennedy bill the compromise places a 25-year cap on the pre-
clearance requirement. After that time, the Congress would have to re-
view the progress made in those jurisdictions, if any, which were still
subject to preclearance and to enact further extension if necessary. The
compromise also requires the Congress to reconsider after 15 years the
workings of the new bailout criteria. Of course, as everyone under-
stands, the Congress would not have to wait 15 years. They could re-
view it next year or the year after or every'2 years. But we do put in
the statute or in the compromise a mandatory review within 15 years.

This mandatory reconsideration clause will enable the Congress to
monitor the progress of covered jurisdictions in establishing a clean
record under the new criteria and insure that the criteria continues
to work in a fair and effective manner.

Our proposal also includes an extension of the bilingual assistance
requirements of the act until 1992. That was also in the subcommittee
bill reported out of Senator Grassley’s subcommittee. Identical provi-
sions are contained in the House and subcommittee bill.

Finally, it includes a provision of interest to Senator Metzenbaum,
requiring that the blind, disabled, or illiterate be able to have an as-
sistant of their own choosin in the polling booth. As I have indicated,
this is a primary result of enator Metzenbaum and others who sup-
port that provision, as does this Senator.

I certainly want to commend Senators DeConcini and Grassley in
working out the provisions of this compromise, also Senator Simpson,
who was an early supporter of the compromise. Obviously, we owe.
much to the cooperative spirit of the principal sponsors of the legis-
lation: Senators Mathias and Kennedy and, I believe, to the Leader-
ship Conference, and to those who have been actively engaged in the
discussions over the past several days.

I believe the compromise strengthens the House-passed bill. I be—
lieve that, had it not strengthened the House—passed bill, we could
have had a long discussion in this committee. But I do. believe that
many of the concerns that have been expressed by Senator Hatch and
others, and I again recognize their expertise in this matter, much
greater than the expertise of this Senator, particularly since they were
parties to nearly all the hearings and in the subcommittee markup.
Notwithstanding a difference of opinion, I would hope that we would
move to adopt the compromise amendment, which in itself would be
open to amendment.

I would just say in summary that, so everybody clearly understands,
the compromise maintains the results standard of the House bill but
adds language—and this is the key part that I think Senator Thur-
mond and others are concerned about—to address the proportiona1_rep—
resentation issue. Specifically, the compromise pr0vides that the issue
to be decided is whether political processes are equally open, thus

62

placing focus on access to the process, not election results. To the ex-
tent which minorities have been elected is one circumstance to be con-
sidered. We talk about the totality of circumstances, the White v.
Regester criteria. But it also expressly states that there is no right,
there is no right to proportional representation.

Regarding section 5, the compromise retains the provision of the
House bill, whereby a jurisdiction can bail out of section 5’s preclear-
ance requirement in 1984 by meeting a set of tough, new bailout criteria.
But the compromise places a 25-year cap on the preclearance require-
ment and provides for mandatory congressional reconsideration after
15 years. As I have indicated, there are other provisions of that bill.

I would like now, if I might, Mr. Chairman, to yield to the distin-

guished Senator from Iova who I believe has a statement with ref-
erence to the comp-rgfiiil r—
e rassley?

Senator GRASSLEY. Thank you, Senator Dole.

I want to compliment everybody who has been involved with working
out this compromise, people on the commmittee staff as Well as those
outside of the Congress who are interested in this legislation. Yesterday
I announced my cosponsorship of this voting riohts compromise pro-
posal. As a member of the Subcommittee on the Constitution, I had an
opportunity to actively participate in the hearings of the proposed
extension of certain parts of the Voting Rights Act of 1965. In those
hearings I heard many convincing arguments both pro and con as to
the merits of amending this important act, especially of amending
section 2.

Throughout these proceedings, I have continuously asked: Is there
some mi dle ground? I sought the counsel of various members of the
Judiciary Committee on both sides of the aisle in an attempt to find
some point of reconciliation on this sensitive issue. At the subcommittee
markup, I expressed my regret at not having attained a compromise
position at that time. I made it clear, however, that I would continue to
seek a proposal which would gain the support of the vast majority of
members of this committee. I believe that this proposal is in keeping
with my intentions to resolve this critical issue with a broad, bipartisan
measure. I should hope that this bipartisan action would dispel the
fears of our minority citizens as to the perceived extension of the
Voting Rights Act.

This compromise proposal should put to rest the misrepresentation
that the right to vote is threatened because the Voting Rights Act is
about to run out. This action is a clear signal that Congress will not
allow even the special temporary provisions of the permanent Voting
Rights Act to expire. I believe that this compromise proposal is in the
best interest of all of our citizens. At a time when we face demanding
economic challenges, this Nation needs to unite and not be divisive.

It is apparent to me that the Congress should settle the technical
questions involved in this important civil rights matter so that we may
focus our full attention in the summer months on the economic chal-
lenges which face this Nation. It is in this spirit that I support this
compromise which guarantees that all Americans shall have the right
to participate in the electoral process.

The CHAIRMAN. Senator Dole?

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