Board of Education of Marshall County v. Baugh Court Opinion

    L*'t*----,
*/"#: ,ri "- concerned about rne riru'

amendment'standand of pruf; I ,"' con@rned about this leading to
pure proportional representation. Do you share any of that fear or
worry yourself?

Mr. Cox. Well, but I think it has now been met by the addition of
Ianguage, and I have been somewhat better informed by additional
study of the case law. I did think that I wanted to chew it over in
my mind rather than to ans\trer it then and there during the hear-
ings. I certainly admit that it is a very important queetion.

Senator Hercx. It certainly is. I am still disturH by the "in
and of itself' language of the saving clause. An expert lawyer like
yourself knows that you can circumvent that language six ways
from Friday, and that it really is no protection from a misuse of
section 2.

Mr. Cox. But I do not Bee, Senator Hatch, any reason in the ear-
lier cases to think that the courts-that will be chiefly the ftfth cir-
cuit-concerned with applying the new law if it is amended as pre
po6ed would have such-I do not mean any offense-such zeal to
pervert its real intent as to disregard the effect of the thrust of
that last sentence and to say, well, we are not saying "in and of'
extends as a scintilla. I am sure they would get rrevemed if they
did.

Senator Hercn. \[ell, I might just mention that Justice Mar-
ehall, in dissent, tn Mobilc also suggeated that proportional repre'
sentation waa a red herring. This was what the court'e perfunctory
rresponse was to this suggestion by Justice Marshall in the Mobilc
v. Boldcn case. In footnote 22, it atated:

the diseenting opinion eeeks to dieclaim this description of itg theory by suggeeC-
ing thst a claim of vote dilution may rcquire, in addition to prmf of electoral defeat,
eome evidence of "higtorical and social fac'tors" indicating that tlre group in quea.
tion is without political inlluence. Putting to the eide the evident fact that theae
quasi€ociologiical consideratioDs barl m udhttiooal baais, it r'smains far from

L445

certain that they could, in any principled manner, exclude the claime 9f. any d11

;;;t" ;iitdi-i4i"rp tt"irtt"ppeds, for'what€ver r€a'on, to elect fewer of its candi
dates lhan arithmetic indicates it might.- I"a""d, the putative limits are bound to-prove illusory if the ,exprees purpose- in
f".-i"glt iii i-piiotio" would be, er tlp dircnt Eume8, to redrees the "inequita-
ble dist-ribution oi political inlluencc." 1t

t€!__ -*? l

t r $me of the opponents have focuscd on the fact that-our bill says

tUe fa& "f 
p"ofio*ionat repreeentation, in and of itself-those are

ffi; i;ey,;;i&:i" oK ;[-th"v ;i+P that all p nlaintifr would
ffi;6 sh;w is *-"'"".y slight additional evidence. Some have

"&"*"a 
to j*t . r"i"iitt. 6f evidence to strike at at-large elections,

".J tfr", ov tfrat an, iaw student could win those particular cases.*fir;'r.;"L"i"*",i ilrii"- ie'ponse to earlier- questions. You

fr."J"*p"".""a yo"t rilt", ."g t kirow that it is very helplul for us

il;ad;&;-trriJii""" ui"""* itt ink it is going to be one of-the key

;;;;;;; *tictrM"-Grs of the Sena6 are goiTg to make some

',ilf,#H?#j:x*1slt"tt"3"r't,tilr,th[",""i$:%tl,:
itv-of-circumstanc;- r"f" i" Whii wbuld- let the- plaintiffs strike
a;;-;l-t;E; "l""tio"t 

so easilv?^Haven't, reallv',the cases re'
;"i;a; 

"E 
i-",ru"i"riii"l;h.*itC of exclusion from the process?

"i,I;:Coi:T tf,i"t ttiiia" ""q"ii" 
a substantial showing, an! lhey

-"r." .1";; th;t i;"."ih.t m6re pro-po4ionality wo:rld result in a
iiltiii-"f-"iri.tioii.""-""*"""-it"a. Th"v +rik" clear fears that
mere elections at i;;;;;id ue 

"iot"tio"s 
that are unwarranted.

The opinio"t *"-uB"v "*pii"it 
on those poilb apg vgry explicit

h ;;;{fr;|il ;h; ;;e";6-""d focusine on the ultimate question-

; i;;li;th;"Jt ""i [u"-U""" a systemati[ and subgtantial denial of
&;i;;-;.tticipation to i mini'ritv group on account of race or

color.l

\uJ \,r( (/n,+),^. 'W\
rAnother area of confusion appears to be over whether the
amended language of section 2 would create q tes! requiring pro-
portional repiesentation among persons actually elected-a g1rot-a
System. So-cllled disclaimer language of the amendment specifical-
l! says that a disproportionate election result- "shall- not, in and of
i[seli constitute a violation of this section." Those who find a pro[
lem with the amendment seem to read that statement as though
the word "not" were omitted. If all the words are read, the state'
ment seems perfectly clear. The White v. Regester test.sought to be
incorporated-by the change in section 2 to reenact a "results" rule
cleariy would 

-require 
consideration of multiple factors, many of

which were mentioned by the chairman in his o-peningstatement.o