Memorandum from Chris to Guinier; Legal Research on Voting Barriers and Proportional Representation

    l.

MEMO

To: Lani

From: Chris

Re: L982 Amendments to the VRA
House Report and House Debates

I looked for remarks in the following categories:

I) References to traditional barriers, i.e. short registration
hours, reregistration, refusal to appoint pol1 watchers. This
category does not include redistricting, at-large districts, etc.

2) References to proportional representation, i.e. any definition
of it, and whether j-t can be ordered as a remedy.

3 ) References that show that voter assistance was a concern of
the amendments.

4) Definitions of vote dilution.

5) Definitions of the 'resultsr test; references to the "totality
of the circumstances" and "eguality of opportunity. "

6) References to the use of the results test in subparts of the
test, i.e. proof of polarized voting by results.

7) References to the remedial powers of Congress as fully
utilized by the amendments. / S4a-.1,0-.v.*r J '( )to.-[-.^-,4.I) P;[,,r'. r,p*.] dua^.--

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2

1 ) References to traditional barriers:

H. Rep. at 14: "Despite the gains in increased minority regis-
tration and voting and in the number of minority elected offici-
a1s, the Committee has observed, during each consideration of the
extension of the Act, continued manipulation of registration
procedures and the electoral process which effectively exclude
minority participation from all stages of the political process."

H. Rep. at l4: "A.study conducted by the U.S. Commission on
Civil Rights on the enforcement of the Act since 1975, further
butresses the Committee's findings that voting violations are
sti1l occurring with shocking frequency."/26

26. U.S. Commission on Civil Rights "The Voting Rights Act:
UnfuIfilled Goa1s, Sept. 1981.

H. Rep. at 14: "Hearings on H.R.3lI2 indicate that there are
numerous practices and procedures which act as continued barriers
to registration and voting.

These practices include: inconvenient location and hours of
registration, dual registration for county and city elections,
refusal to appoint minority registration and election officials,
intimidation and harassment, frequent and unnecessary purgings
and burdensome reregistration requirements, and failure to
provide or abusive manipulation of assj-stance to illiterates."
H. Rep. at 15: examples from the hearj-ngs of harassment and
intimidation during registration and voting.

H. Debate at H684I, Glickman: "The Subcommittee on Civil and
Constitutional Rights found overwhelming evidence that the act is
still needed. Unfortunately, there are areas of the country
where individuals are stiII discriminated against.. .. "

H. Debate at H6841, Rodino: "Some might poj-nt to these successes
and argue the protections of the law are no longer needed. But
the extensive hearings by the Judiciary Subcommittee on Civil and
Constitutional Rights convinced even those skeptics that continu-
ance of the act, including preclearance, was absolutely vita1."
H. Debate at H6845, Hyde: "We heard [at the hearings] tales of
abuses in areas where polling booths are not available, where
reregistrations is demanded, but the registration offices are
open from 4 to 9 (sic), I day a week, and all sorts of subtle and
not-so-subtle deprivations of people's right to vote."
H. Debate at H6847, Bingham: "The U.S. Commission on Civil
Rights . has once again found that harassment and intimida-
tion of minority voters and candj-dates continue to persist.

There are continuing problems in registration and in
voting. " ( gives examples )



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H. Debate at H5848, Frost: t'witness after witness appeared
before the committee to report on lingering instances of voter
discrimination. "

H. Debate at H5850, vJashington: "The witnesses before us Iat the
hearings ] gave us a chamber of horrors, instance after instance
in which the act had been violated. There had been intimidation,
threats, coercion, po11 changes with no notice, individuals in
the South forced to vote at an open table where everyone could
see them and intimidation h,as rampant. . Multiple registra-
tion has been required. Inconvenient voting locations have been
mandated primarily in black counties or black locaIes. There
have been unnecessary runoffs and slate requirements where no
slates were needed. "

H. Debate at H5869, Fowler: "rn Georgiar dS in most southern
States, black registraton generally remains 20 percent lower that(sic) white registration, with just over one-harf of the blackpopulation of voting age registered to vote. And voting abuses
continue. As recently as I980, in Taliaferro county, the sheriff
and his deputy, both white, took it upon themselves to deliver
absentee ballots to black households and help voters fill them
out. The results were predictable . . l"ly state i s not the
only, nor is it the worst, offender in the area of voting
regulations and procedures. . . ."
H. Debate at H5873, Markey: "Despite substantial advancement of
voting rights, the battle is not yet won. During hearings on the
act, extensive evidence was presented showing the perpetuation of
efforts to exclude minorities from the electoral process at aII
stages. "



2) proportional representation

H. Rep. at 30: "The proposed amendment does not create a right
of proportional representation. Thus, the fact that members of a
racial or language minority group have not been elected in
numbers equal to the group's proportion of the population does
.not, in itself, constitute a violation of the section although
such proof, along with other objective factors, would be highly
re16vant. Neither does it create a right to proportional
representation as a remedy. "

H. Debate at H6983, l0/5/8L, Minish: "What the bill says is that
you will be judged by the result if the laws are in a form which
results in a denial or abridgement of the rights of the minority
group, and it includes specifically a disavowal of any effort to
require quotas. . So hre are not imposing a quota, nor asking
for a simple head count. "

H. Debate at H3841, 6/23/82, Sensenbrenner: "the remedy for any
voting right violation must be conmmensurate with the right that
has been violated. For this reason, the courts in correcting
section two violations are to exercise their traditional equi-
table powers to implement relief that completely remedies the
prior violations or dilution of minority voting strength. Based
upon established and accepted concepts of equity and existing
case law, the courts have a duty in section two cases to provide
equal opportunity for minority citizens to participate in the
electorate and to select candidates of their choice. They must
fu1ly and completely eliminate the prior dilution of minority
voting strength. "



3) voter assistance

H. Rep at I4: "Hearings on HR
numerous practices and procedures
to registration and voting.

These practices include:
manipulation of assistance to illi

actually into the
had no testimony
exists. "

H. Debate at H6851, l0/3/8I, Fenwick: "I would like to ask the
chai'rman I do not think there is sufficient protection
there for the voter. . I think that if advj-ce is needed, both
parties can get together and advise outside and coach But
nobody ought to go into that thing unless they are blind or have
not got an arm or two arms. I mean, it is open to the most
terrible abuse and there is no protection as far as f can see.

Would the gentleman accept an amendment that would reguire
that any advice and help take place outside the voting booth
itself?"
Edwards: 'r do

3112 indicate that there are
which act as continued barriers

. failure to provide or abusive
terates. "

not know of any States where the people go
polling booth fn addition to thatr w€

to the effect that the abuse . mention[ed]

H. Debate at H6965, 10/5/81, Fenwick: "To me it is shocking that
assistance can be rendered to a voter, in what should be the
secrecy of the voting booth, when the voter is not blind
If assistance is needed, it should be rendered outside the booth

. .We have let this support of assistance creep into the bill
and I am afraid that now it will be hard to get an amendment to
take it out. . We must keep other people out of the booth.
Just leave the voter alone in the booth. Assist them outside.
TelI thenr, show them, anything you like, but not in the booth."
Note: this was out of order, there !{as no response, and debate
on the motion continued.

H. Debate at H7001, l0/5/81, Fenwick offers amendment:
"Sec.208. Nothing in this act shall be construed in such a way
as to permit voting assistance to be given within the voting
boothr unless the voter is blindr or physically incapacitated."

Ewards in opposition to the amendment: "no provision of the
VRA requires that jurisdictionsallow persons assisting persons to
enter the voting booth with them. How assistance is provided is
determined by State laws and is not properly a Sederal responsi-
bi1ity. "

The amendment was adopted.

H. Debate at H7A07, l0t5i6l, remarks of Ms. CclLins of Il1.:
"Sinri1ar1y, a requirement that il l jterate persons carr on ly
receive voting assistance from election workers, instead of fronr
persons of their choice, trdy discourage those persons from voting
if there are no minority election workers and thel feei intinr-
idateO b), white electron workers."



4) vote dilution

H. Rep at 17: "The Congress and the courts have long recognized
that protection of the franchise extends beyond mere prohibition
of official actions designed to keep voters away from the po11s,
it also includes prohibition of state actions which so manipulate
the elections process as to render the vote meani-ng1ess. "
. 'The right to vote can be affected by a dilution of voting
pgwer as well as by an absolute prohibition on casting a ba1-
1ot. ' / 42
42/Allen v. State Board of Elections, 393 U.S. 544, 569 (1969),
Reyolds v. Sims, 377 U.S. 533, 555 (1954).

H. Rep at l8: "Certain kinds of practices or changes, can
nullify minorities' ability to elect the candidate of their
choice just as h,ould prohibiti-ng some of them f rom voting. "

H. Rep at 18: "There are a number of practices and procedures in
the electoral process which individually or in combination result
in inhibiting or diluting minority political participation and
voting strength . such as at large elections, high fees and
bonding requirements, shifts from elective to appointive office,
majority vote run-off requirements, residency requirements,
annexations/retrocessions, incorporations, and malapportionment
and racial gerrylmanderirg] .

Although these election practices or devices are used
throughout the country, in covered jurisdictions, where there is
severe racially polarized voting, they often dilute emerging
minority politica1 strength. "

H. Rep at 18-19: examples of such vote dilution techniques: at-
large elections, anti-single shot voting, majority vote, numbered
posts, residency restrictions, staggered terms, racial gerrymand-
ering, and malapportionment.



5) results test

H. Rep at 292 "section 2 of H.R. 3112 will amend Section 2 of
the Act to make clear that proof of discriminatory purpose or
intent is not required in cases brought under that provision."

H. Rep at 29-.302 "The purpose of the amendment to section 2 is
to restate Congress' earlier intent that violations of the Voting
Rights Act, including Section 2, could be established by showing
the discriminatory effect/98 of the challenged practice.

98,/See Committee Hearings, 1981. Memorandum From: Hiroshi
Motomura, To: SaIIy Determan.
"In the 1965 Hearings, Attorney General Katzenbach testified that
'the section would reach any kind of practice if its
purpose or effect was to deny or abridge the right to vote on
account of race or color.' As the Department of Justice conclud-
ed in its amicus brief in Lodqe v. Buxton, applying a - purpose'
standardunderSection2w@.purpoSeoreffect,
standard under the other sections of the Act would frustrate the
basic polici.es of the Act.

By amending Section 2 of the Act Congress intends to restore
the pre-Bolden understanding of the proper legal standard which
focuses on the result and consequences of an al1egedly discrimi-
natory voting or electoral practice rather than the intent or
motivation behind it. Section 2 prohibits any voting qualifica-
tion, prerequisite, standard, practice or procedure which is
discriminatory against racial and language minority group persons
or which has been used in a discriminatory manner to deny such
persons an equal opportunity to participate in the electoral
process. This is intended to include not only voter registration
reguirements and procedures, but also methods of election and
electoral structures, practices and procedures which discrimin-
ate. Discriminatory election structures can minimize and cancel
out minority voting strength as much as prohibiting minorities
from registering and voting. "

H. Rep. "Supp. Views of McClory" at 702 differentiates between
the "effects" test and the "resu1ts" test. The effects test
requires a showing of unequal access to the political process by
minority groups. The results test is not a test of access but of
impact on the political process by minority groups.

H. Debate at H6842, tO/81 , Rodi-no: "amend ="Ltio., 2 so that
plaintiffs in voting rights suits would have to prove that
actions by State and Local governments hao resulted in voting
discrimination regardless of the jurisdictions' intent. .

Legislative history Iof act pre-7982 amendmentsi shows that
Congress inteded that proof could rest or erther discriminatcry
resuIt or purpose. "

il. Debate at H6983, lA/5/81 , Sensenbrenner: "The purpose of
section 2 of the committee bill . is to clarify the standard



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of proof in establishing violations of the Voting Rights Act."
H. Debate at H6985, 10/5/81, Edwards: "This bill makes a simple
and sensible change. It says discrimination can be proved if
either discriminatory purpose or discriminatory result is shown.
This makes it possible to prove a case where there actually is
discrimination, and it allows the court to take into account a
number of relevant factors in making its decision.

H. Debate at H3840, 6/23/82, Edwards: "The amendment Ito section
2l is designed to make clear that proof of discriminatory intent
is not required to establish a section 2 violation. fn fact, thej-mposition of an intent standard under section two has been
specifically and decidedly rejected by both the House and
Senate. "

H. Debate at H3842, 6/23/82, Hyde: States that the results test
incorporates the intent test of White v. Regester.



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6 ) reaulta etandard throughout the act

H. Debate at H6983, Sensenbrenner: trCongress intended that the
same standard of proof apply throughout the act, but that
different remedies would apply depending upon when the violation
occurred. "

tilote: I think this refers to the different sections of the act,
not ihe subsections to section 2.

7l remedial pouers of Congress

H. Rep at 3I : I'Section 2 , as amended, is an exercise of the
broad remedial power of Congress to enforce the rights conferred
by the Fourteenth and Fifteenth Amendments."