Excerpts from Senate Hearings: Totality of Circumstances Test (Prepared Statement of Benjamin Hooks)

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~ 0 p at an election ochene hee e discrilinetory reeult. en aggregete

of objective fectore would have to be proved. ouch ee;

. e hietory of diocrilinetion effecting the right to vote.
. the use of devices or procedures designed to ensure that only
the eejority will get elected. such ae n majority vote
require-Int, enti-eingle—ehot provieion, et-lerga
electione. numbered poete, or purging of voter regietation

. reciel bloc voting

. e -white or predoainentl
which control the eleting proceee a
or olploy reciol ce-peign tactics;

   

y white political orgenizations
nd exclude minorities

. locale-of ninoritiee to the nejority (whether minority
cendideten were afforded equel zonal-to forums, public

epece. etc. )

on of minority voters (whether absentee
bellote were provided for minority citizens in the some
manner end under the sen. circunutencee ae whiten; whether
the polling plecee are ectesseble in the communities where
the linoritien reoide. end tines convenient for the voters.)

. equal eccmodeti

All of theee feetore need not be proved to eeteblieh a Section A violation.

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e electoral process--thet they were denied equal

were effectively uhut out of th

racess-—or that their voting strength

opportunity to perticipete in the political p

wee effectively diluted.

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P.405

./ I an particularly concerned with the amendment to Section 2, \\
because I feel that its implications are not understooJ. Unlike

nost parts of HR 3112 which operate only to extend the existing act.
the amendment to Section 2 changes and substantiall alters that section.

 

It is no overstatenent to say that the effect of the amendment is
revolutionary, and will place in doubt the validity of political bodies
and the election codes of many states in all parts of the Union; If
enacted. Section 2 will in a very short time, produce a new horde of ‘
voting rights suits all over the -Nation having repercussions with
portants no less than the flood of reapportionaent casss‘which followed
Bauer v. Carr, 369 u.s. 186 (1962). It is simply impossible at this
ltine to anticipate the numerous voting practices, laws and governmental
structures which will fall victils to the broad sweep of the alssnded
section. he expressed by Representative Butler in the House Debates, 4
in changing to an 'sffects' test, one is linitedr'only by his imagi-
nation.‘ Cong. Rec. 8 698‘. This is necessarily so because in sub-
stituting an 'effect" or 'inpact' test for the traditional. intentional
discrimination rule of Fourteenth and Fifteenth mndnsntijuriaprudence, ‘
the validity of a law is made to depend upon‘how it operates in a given
context. The same law, although. neutral on‘ its face and enacted with
the-purest of motives and purposes, may well be invalid in1 some states
while valid in others, because of differences only in such circumtances
as whether a racial or language minority is present in one state or sub-
division, or whether the minority enjoys substantially tho sans socio- *
economic status in one jurisdiction as the majority. In other words.

the validity _of a law under the 'sffact' test depends not on its inherent
qualifies or the legislative context in which it was enacted. but 235
the evidence in the articular case, as to how it affects certain persons
in that state. This evidence will vary from state to state and period
to period. It is quite possible for example, that a law may bs con-

\stitutional in some jurisdictions within a state, and void as to others.