Memo from Lani Guinier to Eric Schnapper and Steve Ralston Re Motion to Dismiss or Affirm (Gingles)

    M E M O R A I{ D'U M

TO: C. Lani Guinier

FROM: David Kohane

DAIE: .June 10, 1985

SUBifgCT: Excerpts frorn Legislative Hj-story of 1982 Voting

Rights Act AmenCments

fntroduction
Thls memorand.um is meant to briefly introduc'e the

-passages f have excerpted from the Senate Judiciary Committee

Report an,C. the Hearings condueteC blz the Senate Judiciary

-Connittee,s Subcommittee on the Constitution. It seeks to

polnt out srgrrlgsttas baseC on this l-egislative history for and

acar.nst LDF's positicn 1n 9in{Ies, !ry, McCaid and @!g,
anC cases presentinql similar issues.

part f of tire memo concerns voter assistance (section zoa

-Gthe Vc+-ing R,ights -\ct), '*hich is of concern in the T:::ner

case. part II d,iscusses the references to the "totalitlz of the

circunstances'r test, r.'l'ith an eye tot'rarC LDP's ginglee argument

that the eLection of a fer.r black officials t'rilI not defeat a

d:.Iut.on c1ain. Part IIf looks at tne Siscussions regardinq

prcportional representation, coth to shor'r that the concer:1s

raised about the use of proportionality analysis Ln representa-

ticn shctr.lC not be exterded to 5#-type cases, and to looll

more clcselr: at '.rirat Congress meant to accornpl isir bv a:nendino

secticn ?. Part I1,r exanines '-vhat !'Ias neant b'r ":aciaI bl-oc

,/3t:-:1.,' and "racialll, .Dc1a:'i zed votinqr " vie"'eC j-n 1i?ht of



treDurposesoftne;esultstest'PartVbrieflydiscusses

t1e aool-icabj-l-itv of section ?- Lo "episcCic" J:arriers tc equal

access for rninorities. I have not discussed the issue of

congres.s r lntent to use its broac relnec1ia1 pgrvers, because the

f e:.1 passaqes I f ound ( r started looking f or this late in my

:.sr.risr..7 ef ti:e legislatlve history) are self-expJ'anator-'l'

:llthouqh I have separated these excerpts lntc categories,

severai of t-:e categcr:es a-re conceptualllz rrerY inter-related'

In par+-icuIar, the "totalitlz of the circrrmstances, " proportional

.-represe:rtati:n, and racial- polarization issues c''rerlap' A1I of

thern at bottom concern just '.'rhat conqress meant to accomplish

bv tae res..rlts test. The languaqe most often used bir section

? s::ppor+-ers tc define the results test is containec in section

2 (b) itser f :

A violaticn o! subsec-'ion (a) is established lf ' baseC on

1..-.!ire.lcta]-itvofc:.rcuinstances,itiss::o:..'nthatthepolitica]-
D=ccesses llaCing !o nomination or election in the State or
pclitical subd.ivisrcn a:e not equaLJ-y c!)en 

--.--o 
participation

r:v nenbers o!. a class of citizens protected :=a subsec+-ion
i;1"'1"-ai.a its menbers ':rave less opportunity than otl:er
menbers of t"re electcrate to participate in the polltical-
Drocess and to elect ;epresentalirzes cf tneir choice .. '

:riJ-t.]ough t'::e resul"s test is ri.rscussec a: creat length in

ttle Senate Hearinqs anc reDort, most of the ciscussion bv

s.,1pDortei.s 1.:as aine{ at|. 4ifferentiatrnq it fron t1e :-:rtent

test :n trre cne hand, anc prcporti-onal :eDresentation cn t:re

ctirer. ilthouoh I ruas nct Lcokinq to ex'-racr- definitlons of

.he resul-ts test until our rliscussion :qith ct''zd.e, after I harl

frnisiedinl::eaCingcfthehearincls,Ibel-ierzetlatthe
I

Cef r::r-,io"$, r,,,:tnesses at the hearirqrs bas'i callrl follot'red

t1e also.re-c-uoted J-anquace frcm secticn 2(b). Fu=tilerro;e, t:re



3

meaning of the results test is lntlmately bound up trith the

,'totality of circunstErnees'r test, and the dlscuesion of propor-

tional representation and racial bloc voting. Manlr of the

excarpts from each category.thus bear on the others,'and

aII ,orill be reLevant to an understanding of just what Congress

r.ras trylng to accompllsh with the section 2 results togt.



f. Assistance to Voters

M1z exanination of the legislative history of the voter

assistance orovisions r,ras Cirected to bolsterincf LDFrs

oosition in the Turne! case. Turner is a feCeral

criminal prosecution of civil riqhts t'rorkers who heloed-

people filI out absentee ballots. The government

maintains that their assistance amounted to votinq twice.

The examination of the legislative history of the L982

amendments tvas aimeC at finding support for the propositionr

that this kind of assistance to voters who need help to

'./ote is nc+- cnlv permitterl but encouraged by +-he VJting

R.iqhts Act. Ti:e legislati-ve history r have examined has

a limitec amount of discussion on voter assistance,

anC i-t does not sceak directly to the issue of assistanee to

thcse votinq brz absentee baIlot; ho"rer.rer, there is support

in the Leaislative historlz f.or this proposition.

Ttre Leqislative history of. the 1982 arnendnents

shor.rs that Conqress was concerned to ensure that all Americans

'.rho have the tegal riqht tc rlole are alel-e to dc so. Congress

',ranted tc bring into the noliticel process trose whc r'rere

a''l i^rilrlc t'r vote but ior r.vhom there !'rere ph-vsical or
v 4 -',.I

lanquaqe inrpediments to voting. jection 208 of the Voting

R.io'"rts Act section 5 of the amendrnents seeks to assure

that the bl:.nC, disabled and illiterate will be entitleC tc

the assistance thev neeC so t:rat these voters :'ri'! t harle

"the same oocortr:ni trz tc vot.e en jclre'l bv al-1 cit:zens. "

s. Le-:. at 62. T\e ,section allo'*s a Derscntl"rho requ-i-res



assi stanee to vcte bv raason of blindnes's, disability, o!

tnabilitv to read or r,'/rite" .!c have assi-stance "by a person

of the voterts choice. " These procecures, tl:Ie senate

cci:lnittee report note<l, 1.Iere intended to "be established i6 a

iilanner r,vhich encourages greater participation in our

electoral grocess.,' fL at 52-63. The report notes that

the ban on i-iteracl' tests, r^rhich "ras made oermanent in

1975, had been intero:etec as reguirinq assistance to

illiterate r/oters, to make their right to vo'ue "meaninqful. "

f3. at 63,(quotincr U.S-. ''r. Louisiana, 2.55 F'Suop' 703' 708

(ro r-a.I965), aff. mem. 385 U.S. 21O (197C)'

T:re e:noeti nr- corce:n t--'.-ouohout Ccnoressional

:onsiCerati cn cf vo+:irg assistance provisions l.,as that

t'1ose voters .r1r\3 .rrerg so assi;ted rniqht be unduly inf luenced

hy l-'lose assisti-rg t:en. l1 tre sections I examined, most

Ci scussicn conce=:1ej :r;hat sort' of assistance couLd and should

be =::o..rided. at poliirg placee. For examgle, R'epresentat'ive

MiIl-icent Fen:.rick apparentli:.believed the Canger of undue

infl-uence at pol-linq places was so rrreat tSat she offered an

amendment forbidCinq assistants in the votino booth except

fcr f,'rcse ohlzsicaLl-v unable to use the bocth. The .{ot:se

ado-ote4 her orooosal :-n I{.R.3LL2.

T1e senate ccnmittee also expressed concern al:out undue

infl-uence brr a,ssl-stants. See S.Rep at 52. But tne Senate

concluCer'l that assiStance in the booth tras necessary for

t\e rlliteraie as r,rel-1 as the pnl/sically cisablec. It

soucrrt to qua::d aoainst the Canqer of undue inf luence by

allor,ring the voter to ):e accompanied bv a person of their

choice. This Senate t/er3i-cn ''ra.: incor!:orated int'o the final



iLL over the Fenwicl: version.

This historv c::ovides a useful analoqv to the Turner

situaticn. T5e Senate bi1L, unJ-ike the re jecteC Fen'.si-ck

version, talles a liberal attituCe to?"rarC Cirect assistance to

voters in the act of votins. Assistance in filling out

absentee baLlots is akin to assistance in the voting booths.

There is adCitional support in t\e I-eqislative

histcrv in.+-he Senate for the notion that if faced rqith the

chcice betr+een qreater pisk of undue influence and a greater

risk of nonparticipation, the Senate wished to err in

favcr of the former. The assistance provisions do not a1low

the assistant of choice to be an aqent of an enployer or

::nion - presumably beeause of aclditional concer:l about undue

influence. I{owever, the S.eDort notes that in smalI

cornnr:nities made up larselv of people w:-th an unrrritten

Ian-guage, .Ihere t.:lere rna'; be yerv fetr' emolovers, "the
l:urCen cn t',re indirziCuaL r s right to choose a trustt.rorthv assistant

'^rculd l:e too ereat to justif'r application of the bar on

emplo.;er assistance. " S.Rep. at 54. This passa.te orcvides

additional evidence of the weioht of the Senaters ccncern that

voters ha:ze access to assistance even if t1e :es,-:]t is a

r:eater risl< cf und're inf !-uence.

Olher sections of the t/otinq R,ights bitl also srroport the

not-ion that Ccnqress in L9g2 placed great ernchasis cn brinqing

people into tire political proces5 ruho have been sleut out by

-ohLrs:-caI or lanqruaoe l:ar::ir€is. T\e new barloy'f p:ovi s-ions

reluire that a j:rri sCicticn take af f irinati'.re steps "to excand

caco;t':i-nl'-ies f cr ni nori,t'.r partici.oat i on. " S.ll.eo. at 5 3.

1,1,:;e:tze:, t'1e e:<t.ension cf the bi-1-incrual prorzisions, anC :-ts



acccmpan\,/inq 3-egislative historv, indicates congJress I s

concern to brinq non-English speakers :-nto the political

process. As Ben jamin Hoclcs saiC in his testimonv: "Sj-nce

the L975 ext,ensicn cf ti:e Act when the bilincual pror,,i sions

r..r€r€ enacted, the political process has been cpened un

tc :nany q/ho r.rere pre',ziousIy exCluCeC and t're belie're that

this protectlon is essent:aI tc preserve t':e riqhts of a

croup of citizens tc participate fully in a-11- aspects of.

-Lrnerican 1if e. "

There are tr.ro obvious problems t'rith ihese argiurnents.

One is that althouqir Congress put a premiura on assistance, the

Senate Com6ittee Cid express Concern 356rt:t ti:e conpeting

croblen of urCue inflrience or misl-eading assistatrce, rfee

S.Rep. at 62. The other is tlra+- the prcv|sions .speali cf

a.ssistance br/ a person cf the voter's c:roi-ce; a cc'':r+-

:li,::h! reqarC as a tuestion cf f act '.rir.ether a ei'zi'! rrcirts

'-,?crl<e:' :'ras a pe:son of the voter's choice.

II. The .Totali-t.r cf t:le Circrmstances Tesj.-

fn GlncTles, the Justi-ce Department seens to argue Ln

,Da:.t tl-rat the e] ectlon of a fer^r nirori-ty representali'zes 'riI1
.1e----eat, a 'rc!-e 4ilution cLairn. I found rz€rY littLe di:ect

4i sc'..rssicn c!. ti:is iss':e i-n the I-egislative historlz T read! - - -

althcuch there '*as a g=eat Ceal- of discussion about tl.re

coltTerse: t.Ihetbei: tl:e el-ection of verv fet,z mirority

reoresen+-at:-r.res (r.lhat slme calleC a lack of nrcportional

reDresentatr-cn ) '..1o'-:''i C ai::re :onstitute a 'ric1"-:t'i on. i{c'^ret/er,

t:e l:earinqs and Senate ReDcrt a=e replete 'rit\ references tc

tlre "tolalit',' of 't'::e Circ':nstances'r test. Tl:e test is refer:eri



B

tc exolicltliz in section 2. The Senate comrnittee report, of

ecurse, lists as one possible factor in provinq a vote dilutir:n

case the exte:rt to r.riricl: rnembers of minoritrr groups have

been elected, but it also rnal<es clear that this is on]v one

factcr, and that no one'faclor is dispositive. See S.Rep. at

29. The hearLngs contaj.n manl/ similar statements. For

examp'le, in his prepared statennent, Benjamin Hoolcs noted that

in some cases, the extent of election of rninority legislators

may not be a factor at all. S."S'ee.tinq,s at ?i5. Ehe rvitnesses

r.rhc spolce in f arror'of t:re test .lU" clear that it is intended

tc be a verv fact-orienteC inquiry.

Furthermore, there is some discussicn of cases in the

?eoort anrl l{earings that :-ndi cate trat the election of a

snal-1 nunber of ninority legisla+-ors shoul:1 not Cefeat a 'rote

4:- t ution cLai n. T\e -c.eprct nctes, f or exanple, that the

aourt :n i'Ihite '2. P.eqester upheld a diluticn claim uhen, inter

alia, a s:nall nunber of Mexican-Americans had been e]ected to

the leois'lature. T'1e Ccurt cited this fact tc sr:oport its conclu-

sr-on that dilution had tal<en place, not to ar;ue that the election

of a fer.v l4exican-Anericans defdated t:re c1aim. See S. ReD. at 22.

LauohLin l,l:DonalC of the Southern R.ecrional ACLU office cited

rritl: disappro'.ral ',11e result of Ctcss v. Ba:<ter, r.:hich in t,he

'*alr,e of l4cb11e rejecteC a Cilution claim after a single blaclr

canCidate !.,.,as elected. See S. i{earings at 334-85.

There is also discussion in the I?.eport and the llearings \

cf. t're i-rten',icn to return to the tests used in lihite v. Recrest,er,

Z:-nne:: , alC ct:ler pre-}{cbi1e cases. AIt':ouoh these cases becran

to be rei-nterc.reted a closet intent cases aft,er .}rLinaton



i{eiohts and Mobile, it is clear that those r.;ho suDported t:re

results stanCaril cont,inueC to vie'nr them as result cases, anri

intendeC. tc i-ncorporate their "totality of the ci.rcumstances"

approach , anterpreted as a results test.

There are some unfortunate word choices by section 2

supporters that mi-ght lend scme support to the ,fustice Depart-

ment t s position. . !'or exanple, irr David I'Ialbert I s testimony

he says that section 2 is needed so minority candiCates would

have "scme shotrt at being elected. See S. Hearings at 526.

Representative Senseni:renner made a similar iomnent. f9. at
g92. To some e:(tent, w€ malr be able to r'rrite these off as

hea',-of-the-rnoment rhetoric. More importantly, thouoh, these

comments are outnurnbereC by the nunber that insist that one

factor alone is not disposiiive in a Cilution suit.

Ifi. ProoortionaL ReDresentation

I read t:1e passagres in tire legislative history regarding

proportioaal representation with two issues in mind (although

I started with oa'ly ihe f irst). One concerns the probLenr

presented bir l{ariis v. Grad<lick: to r,rhat extent does the

re;ecticn of p:oporti-onaI representation bar the use of

of propcrticnalrtv anallzsis in other aspects of e'lection

praetices -- specifically, the appointment cf poLl- officials.

The second concei:1 is ]:roader: ',uhat exactly did Congress reject

:-n announeino that sectioa ? di,l not afford a rrqht tc Droportional

:errese:1taiion.

The ,'l-eqislati ve history sho'.,rs that Congressional- concern



10

and deliberati-on about the use of proportionalitlz was almost

exclusively focused on tlne question of proportionality in

representation. The opponents of the results test, like

senator Hatch, maintained that the results test had no'"core

valudr other than proportional representati.on , see Additional

Views of sen. Hatbh, s. R.ep. at 96, and that proportional

representaticn r+as inconsistent with the Amerlcan system of

representative government. The conc,srn was that it inrplied that

each faction should have its olin repre'sentative, undermining

the basis for comprornise. see, Q.Q.1 Testimony of Prof. I'Ialter

Berns, S. Hearings at ?29-3L. Although these same people likel1r

har,re ob jecti cns to the use of racial goals in other coRtexts,

their expressec'eoatr€rns in this context largely $rere about

causinq a rad,i cal a'! teration in the .\merican f orm of representa-

tive qoverament. These eoncerns are pecullar to the use of

quotas ia apportioni.ng representatives; they do not app1y to

t:le aopointrnent of poll watchers. Thus, e';en the o3rponents of

ti:e res:rlts test expressed little that r+cu]4 bar the use of

d.isproportj-onality analysls for non-representative, election

of f :-ciaIs.

Th.ere is also lnore Cirect evidence #-iat Congress t,\ras

ccncerned to ensure that there r':ouIrl be an increase in the

nunber of ninority _eJ-dction officj.a'ls. Ti:e bailout prorzisions,

f or example, reor:ire +-hat to escape section 5 preclearance

jurisdicticns take constructive efforts



I1

to elirinate barriers to mi-nority voting, such as "the appointment

of m:nority persons'as eLection officials .througirout the

jurisCiction and at all stages of the election and registraticn

pEocoss.,r Section 2 (b) (F ) ( iii) . Based on the legislatlve historv

I have read, then, the Harris-type issr-res shouLd not be signifi-

cantliz affecteC b1r the legislative history of the proportional

representation disclaimer.

Of broaCer concern, however, is some ambioui-ty in just

',rhat was meant by 'rDroportional representaticrl." The term

'gas seldom defined. Usually, it was used to. mean racial quotas

in allocat:-on of representative seats, both by supporters and

gp:Donents of the results test. Supporters consistentlY maintained

that quotas rvere not the alm of section 2. Howerler, opponents

cf the resuLts test sometimes used "proPortional representati on

to nean ect ;ust racial rluotas, br:t also efforts to
,i-esiqn electoral srlstens that woul<L affor4 rninori ties an

opportunrty to e]ect candiCates of their choice. See, €.Q.7

Additional Vier+s: cf Senat,or llatch, S. R.ep. at 139. S'ince the

legislati-ve hrstory is full- of suqgesticns that hi.s opportunitv

is exac'uly what sectlon 2 t.ras designecl tc affcrC, tire courts

shculd reject t'ris rzle',.' of r.rhat prcportional re.presentation

neant tc tie Congress tlrat rejected it, and nct read. this

aooroach irtc the dlsclaiiner in section 2(b).

IV. Raci.al Blcc/PolarizeC t/otino

Tlre Senate feirort lisis racial bloc vctino as a facl'or in



L2

determini::cr r.rSether a section 2 violation exists, anc-'

ccurts, l:oth bef ore {g}!}g an,l af ter 1992, have apparentllr

seen it a.5 the "l:'nchpin" of a dilution case. I{ot'rever, althouqh

the terms '.re.re used freq-uentl:f by both sides, t:1ev trere used

care1ess1y.Theissuepresentedin@,the,!Higginbotham
challenge, " and other cases -- whether racial polarization in

vot5.ng means that whites refused to vote for blaclcs -because of

racial animus, oriust trat blacks and white vote differentlv --

is thus d.ifficuLt to sort out; support fcr both sides can be

drawn from the legislative history.

The notion that "racial bloc 'rotlng:" just means that racial

or ethnic minorities and najorities vote dlfferently. in a

olven ccrnmunity is sltpporteC by languaOE trr-the House report, -

whi-ch-indicates:th.at- an election scheme fhat results in the I

consistent defeat of minority candidates or canCidates aligned

r^rith minority,interests" would be iIleqaI. II. Report at 30.

. oCdly enough, some support for this positron'also cornes

fron an opponen+- of section ?, Prof . Susan McManus, r+ho

Cefined racial polarization as follo',rs:

[-n1."ia1 polarization ..., technically, occurs rvhen citizens
}f oae racial grcup uniformllz vote fcr one candidate and
citizens of another raci.al group uniformly vote for
an other.------:---.- -. .

S. Hearings at 513. (She then rvent on to salr that it is very

rllffrcul-t to measure racial boldrization,- ind'tc Cefine hor,fiuch

polarizatj-cn is unacceotable. ) Several lines Iater, however,

si:e revealed that her definition tvas not entirel-.r consistent

'ritii l.rer u::de::stanCincr cf the puppose of loolcino at racial
poLarization, fcr she seerned to think that tlee purpos€ trl?s to



13 /

f inC out r,'hether racia'l animus underlay individualsr voting

decisions. See S. Hearincrs at 543. Fer't others rnade an

attenpt to def ine "racialIy polarized voting" a'" a1I, althouqrh

sornetines thei: neaning can be extracted frora context.

Becar:se people on both sides of the issue..iuse the terms

inconsistently, arguments about what raciaL polarization in

votincr means tr'ill have to look beyond quotations from legis-

lative history to the pllrposes of the results test.

I.ie can argue from the statute and its purpo.ses that a definition

of "racial] y po-larized voting" that does aot rely on racial

aninus -best serves the Congress' intentions.

The legisla+-i.re historlz of the Act contains frequent

references tc the goal of en.suring t:\at 'rmenbers of a protected

class have the same gpPgglg:g as others to participate in the

poJ-itical process and elect candidates of their Choice." See,

3.cI., r\Cditional Vie'r,'s of Senator Do1e, S. R.ep. at !94. This

approach is incorporated Cirectly into the sectlon 2(it) test

cf :uhat ccnstitutes a ,zi.olation of the results test. ("A vi-o'lation

of subsection (a) is esta:Li.sl1ed if , based on the tota1itV of

c'ircurnstances, it is shcr.rn that the polit,icaL p=ocesses

l-earlinc to nora:nation or eLeetj-on in the State or political

subrli.risicn are not ecual]y o:Den to gart:-cinalion bv nenbers of

a cl-ass of citi-zens DrctectbC by sr:l:sectj-on (ir) in that its

nenbers ::al/e I ess ooportunitr: thah other members of the electorate

to pa:trc- oate 1n 
"'.1e 

pclitical process anC to elect representa-

ti'/es of t-:elr cho-j:e. " ) I: r-le i-;rtent oi. Congress lras +-o

::rilc' t.he ':::C.e:represerteC intc the political strsten, +-he

16!ir,ra!is1s of .rl:ite vcte=s in r.zoting for C:fferent candida'ues



1Ar=

fro:n blacl,.s are unirnportant. (Thus, one !'lay to explain

statenents b1r suDpbrters of the results test that-'imply that

voting t{1+-l: racial animus was a central concern is that racj.a}1y

motivated voting is a concern, but not the l.lhole concertr;

it I s a sul:set of the set of reasons minority voters are unable

to elect representatives of their choosing. )

Tl:j,s approach,'mtrting-reICtal animus unnecessary for a

finding of racially polarized voting, is also supported

generally by the reasons for'.the eli:nination of the question of

intent from sectj.on 2. Although the discussion of this

question focused on whether the intent of l6gilators and

Legislatures neeC-be"consid€red in a section 2 cLaim, sirnilar

eonsiderations appLl, to the problem of t+hether votersr motives

. must b€ exanineC in a Cil.ution suit. The leqisLatlve historv

ccnrains manj.' rererences ro the rtirricu,ty :;";:*iil)i".""..
See, €.g., Testimon',2 of Benjamin !{ookg, S. Hearinqs at ?63-641

S. Rep. at 35. The Crfficulties in provinq the rnotives ct

indiv:-d';a1 voters pose even q,reater diff icr:1ties. Mcreover, if

the ooint cf t\e r/otinq R,ignts Act r+as d,esignerl tc qive ninorities

t'::e ooportunitlr tc eLect candidates of their choice, then to lool',

at vote::st inte:rt is to "asi<f J the wrong q':estio[.rt S'. P.ep.

at 36 (rejectingr the intent standard for section 2). (f d,o
spec rf ic

nct recall seeingr/references to rejection of intent-based

analysi.e for the sub-parts of the results test, as CLvCe had

suggeste,C looking for. i{or'rever, since f cn)-ir slolie 'rrith hirn

after I haC fin:-shed reading the sectj-on ofthe Senate hearinqrs

I di,i, I r,ras not specrficallv lool<ing for such references. I'{12



15 tL

.Sense is tlle:e r.rere :rot' sueh references, and our be.st ar.Tuments

on tl.lis a:e interpol-ated frcm t'le rejection o! tl:e eeneral inEent

"test. )

Thi.s anal\/sis o'rerlags r,rith and is rnformed b'r the

discussi on of proportlcnal- representation , f or it concerns what

the Voting ffights Act was meant to accomplish in the area of

vcte dilution. To the extent that tne rejection of prooortional

reDresentation was lj.nited 
"o 

a rejection of racial quotas in

reDresentatLon, the arguments that the ain of the statute is to

increase mrnority ability to elect legislators of their choice

remaj.n stronq. But if the CongressionaL hostilitv to Dropor-

t:-ona1 representation is interpreted as reluctance even to
oPPortuaiitY

suoport efforts to enhance minorities' / to elect repre-

senta-,ives of their chcosincr, it wouE also be harCer to 1"eep

t5.e crr-lestior cf racj-al animus cut cf the definitron of racial

bloc voti;rg.

Although the great bull< cf the legislati're history of

secti-on 2 in the senate concerns ho:^r t:)e ;esults test is

applied in dilution cases, there can be 1itt1e doubt that

section 2:.Ias meani to apply to "epi-scdic" barriers to equal

n:-ncr j-tv participation as wel-1, such as the f ailure to appoint

minority poIl officials in Harris. The Senate P.eport

soecificalliz points out that section 2 "also prohibits practices

.:h:-ch, 'rhi-'l e episcdic and not invol-vinq perr:laneni Structural-

barrie=s, resu'lt in the Cenral of equal access to anv ohase of.

the electcral process for minoritlz qrouD nernbers. " S. 3.ep. at 30.

l.f . ',Ecisodic" Earriers to Ecua1 Minority Perticipsli-gn



l-6

It also notes that proof o! such violations might well rely

on different factors from those used in challengingr structural

barriers. LB. I{itnesses at the hesrings in the Senate cited

example of intimiyiation and harassment of minoritv regis-

trants and voters and unresponsiveness of white election officials

to mj-nority people seeking to exercise their votingr. rigrhts.

See, €.g., Testimony of Hon. Charles Mathias, S. Hearings at

203-09; Testiinonv of Ruth llinerfelC, S. Hearings at 322.

Indeed, the lack of black election officials was specificalllr

cited as a barrier that need.ed correction. See Prepared State-

ment of Benjamin lloolcs, ;. Heari'ngs at 21-t' Support for increased

appointment of minoritlz election officials is also found in
( I zr5Yroiir e{ *e<, l',tt )

the statute , s bai.Iout. .orovi5ions^ specif ical ly mention appoint-

ment of minority election officials as oue..of two exaqples of

the l-.ind of. ',constructive effcrtsrr at increasingr mi.nority access

that the bailout provisions require. While this analogy to

secti on 5 does not prove that failure to appoint minority

po1l officials r,rould automaticallv constitute a violation of

section two, this 1-egislative historlr surely supports the

notj-on that if an 'repisodic" practice is al barrier to

ninorlty votinq st;ength, it 'riolates section 2, and also

the nctic:r that fai'lure to apoo:-nt mincrit'z el-eet-ion officials

m:-.:tht bften be such a oractice.



ASSISTANCE TO VOTERS

NOTES FROM SENATE HEARIIIGS

Januarv 27, I982

Testimonv of l{on. 'l.lilliam French Smitil (U.S. Att'v Gen'I)

(page 70) 'rThe bilinoual protections of sections 4 and

203 were adderl in 1975 to securd the right to vote for'
those citizens who are not fluent in the English
Ianguage.

"In our meeting with various groups last summer, rr/e

heard numerous expressions of suPport for.the bilingual
provi-sions. Citizens whose first langiuage is not English
have been affcrded by tlrese provisions the opportunity
to participate effectively in the election process. "

( Smittr then indicates the administrationrs support
for extension of these provisions. )

Prepared Staternent of lIon. Ed'+ard M. KenneCv (Sen. - t"tass.)

(page 220) El" bilinqual provisions-7 "have proven
successful in bringing thousands of .\neri-cans into
the political process who lr'ere previously unable or
hesitant to partlcipate !:ecause of tneir inability to
speak and read Eng1ish. "

(224) "The theoreiical argument has been that such
bii-ingual assistance r,night make lanquage rninority



voter assistance, 2

Americans more separate and insulate them from the main-
stream of American societv. I think that arqument

stands loqic on its heaC. Histcrv teaches us that the
best walz to avoiC insularitlz is to brinq people into
the political process; not to make them feel shut out.
An editorial last September in the San Diego Union put
it well:

As for language separatism, we do not see that as
a real danger in America... bilingual voting, at
best is a temporary measure, a make-shift measure
to give. older Spani-sh-speaking citizens the sense
of full particioatlon in our democracy. The

' younger members of the community - are moving rapidly
a?rav from linguistic isolation.

We should not turn our backs now on the thousands of
older Anericans qrho, through no fault of their own,

simply have not had tne opportunity to learn English
r.,'elL enough to vote rvithout painful ernbarrassement (sic)
and, rlangerous conf us ion . "

PrepareC Staternent of i{on. Sor.rard M. I,letzenbaurn ( Sen. -

(paqe 226) "As elected officials, r+e have a
responsibilitlz to preserve and to protect the right of
every citizen to vote fieely and privately tvithout
regard to race, language or handicap.rl

(227 ) "These bilingual provisions currently avoid the
effective disenfranchisement of countl-ess of language
mi-norit'r Americans. "



voter assitance, 3

Testimo4ll__o:[-Vikna Maftrnez (Exec. Dir. and G54:. CqunseI,

(page 291) "The continuing need for bilingual voting
assitance is demonstrated by tha fact that 16 percent
of all respondents, aLI U.S. citizens, irl our surve!,
/-conducted blz MALDEF and the Southt.rest Voter Regris-

tration Education Project in response to charges that
bilingual elections are not needed-7 speak Spanish
on1y, and 33 percent requested that the intervievr be

conducted onllz in Spanish, suggesting that even though
an individual malr be bilingual, he or she may be more

comf ortable in Soanish. rr

Preoared Statement of Ruth J. Hinerfel-d (Pres. Leaoue

of rrlomen Voters)

(page 325) t'ue support extension of the Bilingual
Elections provision unti I Lg92 to ensure that
all eligible voters have access to the ballot."

Januarrz t9g2

PreoareC Statement of Hon. Henrv L. Marsh (Mavor of
RicnnonC. Va. )

( -oage 451) ,/cites
which s*,i11 exists
denlr blaclcs access

as an example of_7 "the determination
amonq some wtritl officiats to
to the political process" :

"... In Caroline County which is 43 percent bIack,



Voter assistance, 4

the local NAACP branch reported that the General

Registrar t-s negative and indifferent and does not
demonstrate a lvillingness to assist prospective
registrants , esPecialIY blac)<s. "

Februarv 2. 1982

Eestirnonv of AbicTail Turner (Attrrl, Mobile. AIa.)

bage 748) ,/-Referring to the history of voting
discrimination in Chbctaw County (in -Alabamars "black
belt") and the need for preclearance:-7

"The Justice Department itself had brought suit in
the earliz sixties under the Civil Rights Act of 1957

because blacks \.rere being discriminated against in
regristering to vote. The Federal court enjoined the
county from refusing to provide assistance to black
voters that had been provided to white voters. That
r,.7BS Ddxticularly the case for persons who were illiterate.
The county's response was enactinq a lTlore difficult
literacy test. The judge struck it do',m ag:ain."

fyts. Turner's p,repared statement describes the same

prob'l em at p . i58.J

Prepared Statement:

(page 759) fnotes that the Justice Department failed
to obSect to a codntyrs "reidentification" i.e.
reregistration -- p1an, despite the plan's vio'lation
of an earlier aqreement r.rith the Justlce Department



voter assistance, 5

requiring, inter alia, assistance for illiterates.

From r,^Iritten Submissi-on b..' Turner entitled:
"The Voting Rights Aet in Alabama:
A Current Legal Assessment"

(page 773) "In at least eiqht counties, serious
violations of election latr lrave occurred tvhen

i11. iterate or handicapped blacks have been denied
the right to have the person of their choice provide
them needed assistance, as provided under Alabama

la1f. Ala. Code s g 17-8-29; L7-g-25. ... rn
I,iashington County and Pickens Countlz in the 1980

electj-on, and Perry County in 1978, people who assj-sted

,/ Note that Turner's testimony tras mostly directed to
the need for strong sec+-ion 5 preclearance provisionse
However, it Coes sho'^r concenn-of the act as a l.rhole

that voter assistance be provided. 7'

Prepared-Statement of Benjamin J. i{ooks_(Exec. Dir.. NAACp)

.(page 279) ,/Efter noting his support for an

extension of the bilinqual provisionszT

"For the Hispanie adult who cannot speak or read
English fluently, the riqht to vote has no meaning
if it cannot be used. Against t:ris backdrop, the mere
inconvenience or costs of printing pales into
insignificance.

J

more than one voter were harassed and threateneCc
r+rth arrest." ffootnotes omitted 7



voter assistance, 6

Slnce the 1975 extonsion of the ..Act when the
bllinEua} provtslons were enacted, the politlcal
procass has been opened up to nany r*ho were prcvlously
cxcluded and wa bell.evc that this protcction ls cssenttal
to presGrue the rights of a group of citizens to
particlpate fully ln all aspects of Anerlcan life. "



TOTALTTY OF CIR.CUMSTANCES TEST

NOTES FROM SENATE HEARI}IGS

Januarv 27. I9B2

Testimonv of Hon. ui.Iliam French Smith ( U. S. Att'v Gen' 1)

/Euestioning by Senator l'letzenbaumtT

(page 83) . Smith! .... It seems to me that when you

are talklng about the chanqe in section 2, you are
tal)<ing about a good deal more than the question of
intent; you are talking about what this rvould

ultimatellz produce if that section is applied as its
langruage would indicate that it should be applied,
and that is ultimately proportional 'representation-
I do not see ho',r anybody can rea111z subscri.be to that
as a test under our system of democraey.
(84) Sen. Metzenbaum: I do not think anybody does that.

Smith: ',.Ie are talking about election results,
nct the right to vote, r,7hen you get into that area.

Sen. Metzenloaum: You can have many other $rays of
proving effect rather than merely the eLection results.
If there are no candidates, for example, that is
certainly a different kind of situation. "

/6uestioninq b.. Sen. Mathias:7

(92) Smith: Senator, actualIy, 3s i said before,
effects, in a good many cases, :nakes up a large part
of intent, not all of j-t. The Supreme Court, again
i-n Mobile, rnade that t/erl, clear, that proving intent
Coes not require going into somebodyrs mind in tl:is



Total j-ty of circumstances, 2

area. fn this area it can be established through
indirect testimony -- circumstantial evj-dence.

Sen. Mathias: But much more diffieult. I do not
see this as a punitive kind of statute. It merellz

tries to identify a condition, r*hich the American
people flnd unacceptable, and to remedy that condition.

Smi-th responded, there have been no f indings
the chanqe to the results test is necessary,

so don't enact it because there is the risk it
wi'l.I be interpreted as requiring proportional
representat jron.-7

/-
hat

T.,im. Bradford Revnolds (Asst

R.iqhts Division Justice Depl
Letter f

Civi I
Att I

to
Hateh,
EIatch

responding to questions subm:i-tted by

in an earlier letter

.,/Eesponding to question regarding the
standards for section 5 preclearanee

department I s

on annexations: 7

(page 18f ) E:n" department uses the standards
developed by the feCeral courts.-7 "This is done on

a case-by-case basis in consideration of all the
relevant facts.

Among the factors considered are the effects of the
proposed annexations upon the racial make-up 6f
the total population, voting-age population, and regis-
tered voters. I{owever, the Depar"ment does not use

any rigid mathematical cut-off. Each ;submission is
evaluated individually. The existing method of
q'overnment, including r^rhether the electoral slzstem

provides f or ma jority or pLurality votJ-ng, f or fu11-
slate or rsingle-shot' voting, and for election by

Cistrict or at-larqe voting, is considereC, alonqr with



fr

Totality of Cir., 3

such matters as the extent of racial bloc voting.
IiIe also consider the history of annexations by the
jurisdiction, "

(183) "fn evaluating reapportionment or red:-stricting
plans submitted under Section 5, as in evaluating
annexations, the Department applies the legal standards
that have been developed by the courts, In doing so,

we proceed on a case-by-case basis, in liqht of all
of the facts, without imposing any rlgid mathematical
standards. "

hese quotations regardinq the Justice Department's
policy on section 5 preclearance are obviously of
limiteC 'raIue. llowever, they could be used -'11'
simpJ.y to shor,r that when faced with a results test
in the past, the department quite carefully reeoqnized
that it rvas a fact-bound inquiry, done on the basis
of all the facts, in contrast to its aPpafent position
in its $!3g-}g. brief . StilL, there are problems with
the analogy, especially since, aceording to the Justice
Deoartment letter at 132-183, Betrs v. Uni-ted Stateg
425 U.S. 130 (1976) treta that lack of a single factor,
"retrogression", meant there was no bad "effect" unCer

secticn 3.-7

Testinonv cf Hon. Charles McC. Iulathias , Jr . ( Sen. -Md. )

(eage 200)
lla+-hias: Tne purpose of the bill is to provid-e f or

fair and just access to the electoral orocess.
Sen. Hateh: Is that the nost fair and just means

to acl:ie're access if 55 pereent of Baltimore is



Totalitv of circumstance, 4

-black then 55 percent ought to be black majority
di stricts ?

Sen. Ivlathias: A fair and just gperation of the
electoral process is to give all citizens equal access

to vote, run, ot otherwise participate in the process.
Senator HATCH. What does "equa1 access" mean,

Senator Mathias?
Seaator MATHIAS. You are well a''var<i of '.+hat i! means.

Senator HATCIi. I r.rant to knorv r,vhat you think it
means, because I know what it mearis under the effects
test in section 5. I think j.t means, os does the

'Attornelr Geneail. of the United States, proportionaL
representation.

Senator MATHfAS. You look at the totality of the
circumstances; tnat is 'raht '.'le har/e been do'i ng.

Se rnalor I{ATCI{. I am quite confused as to the
relevance of the circumstances that you are consideri.ng
in their totality. For instance, the intent test would
also aLlorv all of these consideratlons to be evaluated
by the court in question.

Senator I4AEHIAS. Is what lzou are =ealllt asking me,

would this bill resuire proportional representation?
If that is realJ.y lrour question, I can give lzou a quick
SIlS\,I€f -- nO.

Senator HATC:{. f will g:-ve you an equallv quich
response; it most certainlv '*ould

Senator }4ATHIAS. That is where '',ue disaoree.
Senator l{ATCiI. You and the Attornev General and f

Cisagree, I suDpose.
Let ne just sa-y 

"his 
: You talk about "eoual access, "

and "tctality of circumstances." In the Lodge case,
for example, the totality of circ:rnstances have been



Totality of circumstances, 5

considered to arrive at a finding that there was an intent
to discriminate.

lhe circumstances added up to an inference of
intent, enough to go to the jury, 3S they do in criminal
cases, but without that high of a standard of proCf.

I do not understand rvhat the question is that the
Court asks itself in evaluating the totality of the
circumstances under the results test. Ifhat precisely
does the Court aski itself afier it has looked at the
totalitlz of the circumstances? I.Ihat is the standard
for evaluatlon under the results test?

Senator MATHIAS. Look at the results.
Senator HATCH. That is all? You are saying that if

there was absolutely no intent to discriminate, BS the
Court found j-n the [obi]e case, Y€t the resuLts l{ere the
election of disproportionately few mlnority candidates,
that a case would be established? i{orq rvould this
effect /EicJa case such as that raised in Bal-timore?

(2OZ) Senator }L{THfAS. I do not think looking
like discrlmination -- the Court has to find that there
is discrinination. ff the results are that people
are being excluded, that is a condition that we rvant to
re:nedy. It is not a punitive act, it is a remedial
act. I'tre want to remedy that condition.

Senator ILAICH. I{ow are }uou going to do that without
looking predominantllr at the numbers in a case. such
as the one f cited from Baltiroore?

Senator MATHIAS. Of course you look at the nunbers;
you look at a variety of factors.

Senator IL\TCH. If there is no sho',aing of intent,
there is ia fact no intent. If the numbers show what
Ivlr. Douglas Eeferring to ,-Tohn I^i. Douglas, chairman
of the Maryland General AssembJ-y I s Btrack Caucus, who

expressed concern that Baltimore, which was 55 percent
black, would harre only 44 percent blacl< districts under
a redistricting proposaLJ said, how Coes a communitv



Totalitv of circurnstances, 6

respond? 'ithat ev-'i-dence does it offer? ?Iould we be

able to impose a voting slustem on Baltimore?
Senator MArI{fAS. I can onlv repaat rrhat t have

said, Ml. chairman. The court would look a" a variety
of factors. I think they have to look beyond a

lack of proportionality. They have to look at a lot
of thingg. That is what we believe the Iaw has required
before the Sg!!}g case. That is what we would simply
restore; that is all.

senator HATCE. Again, I am still confuSed as to the
relevance of what you are talking about, with regard
to these circumstances that you are considering in
their totality. I.Ihat precisely does the court ask

itself after it has looked at the totalitlz of
circumstances? Does it not reallv come dot+n to a

statistical numbers game and proportionaL representation?
Senator MATiIIAS. You look at uhat goes on; you

look at '..rhere people are, 'rrhat they do; you lool<

at a great varietY of things.

:

Prepared Statement

(page 2L4) "In &}!en, f our members of the Court
interpreted Section 2 to require'that violations of
the iection be based on specific evidence of discrimi-
natory purpose. Prior to s!!93, a vioLation r. in
voting Ciscrimination cases could be shct'/n bv reference
to a varietv of factors that '^rhen taken together
added up tc a finding of illeqa1 discri.rnination. In

Eg]len, tire o]uralitlr appears to harze abandoned this
"totaLitir of circunstances" test and to have replaced
rt rvith a recuirement of specific eviCenee of
disc:in1l1at,cr'"' ourDcse . "



Totality of Cireumstances, 7

Testimon of Hon Edrsard M. Kenned Sen. - MA

(page 21S) ',Let me just say that urhat basically \^te

are attemptlng to do with our proposal is restore the

rule of law as it r"ras in the @!!9 decision'
There is no requirement 6or strict proportional

representation at large elections, and to trv and state
that as part of our particular leqislation is I
think the words ?.\rere used earlier in the course of the

hearing -- a smokescreen. It basically fails to
understand. rvhat the courts were dealing with in the

white decision and what we are attempting to do 'rrith
this legislation.

Senator Mathiasr respon5s r{as riqht on poi-nt. No

matter horv many tj..res the question is asked, I think
the ansver is very much the same that there is
no requirement about a strict proportional represen-
tation at large elections. I^Ihat ',.ri11 be Considered

is a variety of dif f erent f actors, some of ''shi'ch
have been outlinerl in the course of the hearings and in
the committee report g[3! rvas put out in the House,

and I i magine there are going to be other factcrs !o
be ccnsiclereC by a court, not to be all inclusive'
f think that is r.1r\3! w€ are qettinq at."

Preoared staternent:

(223) "In fact, the amendment of Section 2 in s.1992:
reflects the original understanding of Congress

in 1955;
restores the legal standard that applied for
mcst of the Past 15 Years;
is constitut j-ona1; and



Totalitv of Circumstances, 8

-- trould not require quotas.
ecti-on 2 s amended t^rou1d not 'make mere failure

of
violation . even if that came as t-!g -iesglt of at

laroe elections. Plaintiffs would ha''re to prove

additlonal factors establishing that, in the total
circumstances minority voters not only failed "to
win,, but were effectively shut out of a fair opportunity
participate fsic-7 in the election."

estirnonv of Prof . i{alter Berns ( Arnerican erl]rLse
Institute) (oppcinent of results test)

(page 230) "I am not unmindful of the fact that the
amended section 2 contains this disclaimer that:
'Disproporticnality of results shall not in and of
itself constitute a violati.on of this section. I

All that means, 'and all it is intended to mean, is
that some factor, in addition to disproportionality,
will have to be present before it can be said that
a grroup's vote has been abriCoed by being di-luted."

( 229!vhen is a vote diluted? when the grrogp is
Ceprived of the opportunity to elect one of the qrroup;

for example, to quote from UJO

orqranj-zations-7 v. Carev, when
/Tunited Jewish

the number of blacks
in a district is not sufficient to insure the
cpportunity for the election of a black representative.

(233) "... a 'rote is understooC to be dil-uted -- and

here of course tre are talking about not the vote of
an indivldual but the vote of a group, and a grouprs

minorities to win proportional repleEe-nlation a



totality of circ., 9

vote is said to be diluted when its legislative
representation is less than its proportion in the
community. "

Testinonv of Ben'iamin L. Hooks (Exec. Dir.. btAACP)

r+hether section to would require proportional
representation-7 "Remember, when rse talk about
proportional representation, 'dB seem to have forgrotten
one thing. I'le talk about that Baltimore examplet
It does not matter if Baltimore becomes 90 percent
b-lack and they elect a white mayor and 19 white council
people out of 19. The law sa-\zs there must be a practice,
a condition, something that happens that causes that,
something that you can pinpoint that made that
happen.

If the cause is the black folk in Baltimore happen

to like that r.rhite mayor and those white council people,
that i s not a cause for justiciable arrangement of
a grievance.

Al-1 f am saying is that I think we have forgotten
what precedes the languaqe, and that is there must be

a practice, there must be a conCition, anC in mlz raritten
testinony I have outlined about 30ii.things that happen.

If vou could prcve that vct:.ng from miCnrght until
I in the rnornrng kept blacks frorn rzoting of puttincl
the p=eci:rots in the poLice departrnent there are
alL kinds cf ',hln$s if you couLC not prove a oractiee,
a custcn r 'r)or sornetninq that haopened, You r':ould nct
errer qet tc the resu'lts. The results trigger lool<i-ng

(paqre 2541 fResponding to Hatch questions about



totalitv of circ., 10

at practices, and vou have tc do both."

PrepareC Statement

(275) "we are not suggesting, as the opponents of the

"results" rest would have you believe, that minori-ties
have a right to proportional representation. The

"results'r test vrill not establish a quota of minority
elected officials. The amendment to Section 2

expressly disavows these notions. ft provides that:

"the fact that members of a miaority group have
not been electeC in numbers equal to the grouors
proportion of the population shall-not, in and of
ifself, constitute a violation."
Under a "resu1ts" test, minoritv representation

NrIl likellr be a factor in establishing that an

election scheme has a discriminatory effect; hotvever,

minoritlr representation is not the central focus of
the inquiry and in some instances, may not be a factor
at all. Under a "results" test, the focal point of
the inquiry would be on the Cil-ution of black voting
strength, nct the ability of black candidates to get
eLecteC. There may be instances, as is the case l{ith
the lOth Congressional District of llew Jersey (D-aodino),

',.rhere a black electorate elects a tvhite candidate.
The f ai 1r:re of that predominantly black district
to elect a black candidate, !.rit,hollt more, certainlv
ruould not lead to a f inding of discriminatorv resul+-.

Tc prove that an e'lecticn scl:eme has a discri:ninatorlz
result, &i agqregate of ob jective f actors t.rould hatze to
be provec... fqives examples-7

(215) ef1 of these factors neeC not be pro'reC to



totality of circumstances, 11

establish a Section 2 violation. 'rlhat "zould have to be

c1ear, hotvever, is that the persons challenging the
scheme '^rere effectivel'/ shut out of the electoral
process that they were denied equal opportunity
to participate in the political process -- or that
their votinqr strength was effectively diluted. "

Memorandum from Ralph G. Neas, Exec. Dir. of the
Leadership Conferencq on Civil Riqhts, dated
Jan. ?6. L982. re: amendment of section 2

submitted r^rith Hooks testinonv.

(paoe 234) faiscussinq tlre 1egal standard before
Uobile:-7

'tFor 14 lrears, the courts heard alleqations that
districting and other practices ili-ega11y diluted
minoritlr voting strengt\, without applying an intent
requirenent. In 1965 the Supreme Court observed in
Igglg v. Dorsev that a districting system migrht be

unconstitutional because it worked to cancel out a

racial minorityrs strengthr (285) 'designedly or
other'.+ise. ' In @!!59g! v. Chavis ( 1971) and '['Ihite

v. Reqester (I973) the Court looked to the rtotality
of the circumstances' to determine vrhether the
challenged svstem effectively shut racial minorities
out of the Drocess. silggp upheld at large electj.ons
ia Indianapol-is even thouqh the Cilution of
black voting strenqtlr Drevented blacks from electing
candldates in proportion to their share cf the electorate.
The Court noted the }ack of proof of discrirninatorv
purpose. 3ut its anallrsis focused on vrhether blacks
had less c:Doortunity than otllers 'to participate in
the political Drocess and to elect J-egislators of
their choice. ' 4O3 U. s. L24 , L49 ( 1971 ) .



totality of circumstances, L2

I'Ihite struck Cot*'n at large elections in two Texas -

counties. The Court affirmed the trial court's
,intensely locaI appraisal' of the total circumstances.
Justice '['Ihite ('n'ho a]so wrote the I.}j!-EsgE9- opinion)
stated for a unanimous court that the right protected
tras not a riqht to prooPrtional representati-on, but
only the rigrht of equal access to the process:

' rthe plaintiff's burden is to produce evicence

Cld- ... that the political process lea.ding to the
nomination and election was not equally oPen to
participation by the group in question.' 412 U.S.
755,166 (1973)."

,/discussing how amended sectj,cn 2 rvould' o-oerate:7
(oage 287) "The legislative history in the House of
Representatives made clear'that the language is a

return to the 'totality of circumstnacesr approach of
the earlier cases such as White and I'/hitcomb which
repeatedly held that there t^Ias no such right to t.rin

offices or a parti.cular proportlon of seats. ...
The senate Committee Report will be unequivocalllz

clear that even in the case of at larqe elections, the
mere failure of minorities to el-ect a prcDortion of
the r..rinners because of racially polarized bloc votingr
rrould not. without more establi.sh a violation of Section
2. as amended. Additional proof of other factors would

be required before a court luould l:e €hpo'r/€r€d to find
from the 'totalitlz of the circumstances I that olaintiffs
had been denied equal cpportunity to participate in
the proc€ss. rl



totality of circ., I3

,

IvIALDEY)

Fage 292) Senator HATCH. First let me raise a

preliminary questj.on. Do you feel that at-large
elections should be outlawed?

Ms. MARTINEZ. No; I do not take the position that at-
Iarge elections, per s€, discriminate agrainst minority
people. I think that one needs to look at facts in
any and all instances.'

Testimonr/ of Ruth J. !{inerfeld (Pres.. Leaque of Women Voters

( paqe 3LB ) Senator I{A?CH. Ho'r, precisellr, r.riIl tre

knor+ '^rhen rainorities are no Ionger under-representeC?
Ms. HII{ERFELD. 1,1r. Chairman, I do not think thate

there is any single formula wherebr/ this determination
can be made. Of course, it is a question that tvilI
depend on the particular cornmunity and the situation in
the cornmunity, and a whole host of considerations
the ful1 rangre of the kinds of things that will have
to be taken into account under settion 2, r+hich f
believe is what you were speakinq to, t,rhen deterrninations
under section 2 are maCe.

Januarrz 28, 1982

Testinonrr of Lauqhl-in McDonaId (Di-r.. So,uthern P.eqional
Office. ACLU Foundation. Inc.)
(page 358) "The burCen cf showi-nq rzote dilutlcn



totalit.t of circurnstance,s , L4

under section 2 and the Constitution prior to 9itv
of Mobile 'rras incredii:I1z dif f icu1t....

To have anlz hope of winnlnq a Cilution suit, the

minority plaintiffs had to prove an aqgrregate of the

so-called Zinmer factors -- history of segregation in all
of its aspects, cliscrimination j-n registering in
votinq, disproportionately low number of minorities
e'lected to office, racial bloc votinqr, lack of
responsiveness it's a laundry list of things.

The optimum dilut,ion suit, quite franklv, r'as

nothing less than a presentation of the complete

racial nistorv of the jurisdiction."

(369) "... 'rith all respect, the proposed anendment-

to section 2, I think, vrould merely restore the Ia'rr to
what it was pri-or to citv of Mobile. There would be

no fLood /-of litigatior.J in m1z judgnent." fbecause
of the great cost of Zimmer- type suits.T

Prepared staternent

(3?7) /-restates the pre-Mobile list of factors used

in a dilution suit. 7

(394-35)/-Cites case of @, a challenqe
tc an at-1arqe e.Lection svstem in 'urhich the 5th Circuit
held f or the plaintif f s, saving pJ-aintif f s sho','red

r-tnresponsivenesS. On renand, after a bl-acl< hai been

electeC in the interiFr, the district co:-lrt
fcund responsiveness bir the city qovernment, even

though there :,ras evi-dence that whites haC sit'tpI1z

voted. for the b1acl: to help the city rv:-n the suit
"to gi-.e the appearance of racial fairness to city
elections. " This tine, ho'{ever, af ter Mobi-le, the
5th cj-rcuit affirned the cistrict court findi-ng for
tl:e city, saying responsi'reness is a fact governed --
b1r the "c1early erroneous" standard'-7



totality of circ., 15

(386) ',tdany erroneous ideas have been expressed about
amendeC Section2. ft has been erroneousllz described
as an election results test, ds if the results of
an election rvould be dispositive of the validity of
the electi-on system. "

( 387) "fhese are all reflections of the recurring
erroneous idea that amended Section 2 will guarantee

election of minoritj"es rather than sinpllz qiving them

an ooportunitv to participate fully in the political
process. Amdnded Section 2 does not involve a test
of ,,election results'r but rather of the overall results
of tire system, 3s viewed in tight of a1l the complex'.
factors , n"r" described.. Anended Section 2 will
return, 3s I have said'to the test that was used in
fact before Mobile and was involved in t'trhite v.
Reqester and Zimmer v. McKelthen. It rvas only the
application of that test that alloryed minoritlz voters
in certain tovrns and counties where lhey l'rere €SS€o-

tia1ly excluded frorn political participation
to have an ooportunitv to partj-cipate for the first
time. I{ithout the ability to chal-lenqe those
exclusionary election systems, ninority voters woulC

be and continue to be denied ooportuntitv, and it
is,frankly, quite fanciful to think that these cases

involve aov notion of proportional representation.
That r.ras confirmed in tr'Ihtte v. BeggEle!, where

the Court said:
"To sustain such claims, it is not enough

that *,he racial grour: alIegedllz discriminated
aqrainst has not had legislative seats in pro.oor-
tion to its vctinq potential." l4L2 U.s. 156J
Tlre; se:ltence that lras added to amended Section 2

is simplir an incorporation of this sentence from
nlh i {-a rz )ada etar ll



totality of circ., 15

Testimonv of Hon. l{enrY ttrzie (seo. - rf f ') (oDp9

of amended section2)

(page 4O2) Senator BIDEN. fnol a member of the

subcomnrittee-7 /-ltotes that during the House

hearings, HYde said:-7
"'Under any effects test that $'e can crank in,

I would hope t:rat the court and the Justice Department

could revierv the totality of thg cj.rcumstances in
evaluatj-ng whether this in fact is a voting rights
abuse.ltt

Mr. ifYDE . ... I.-tlrink what I'm trying to soYr.'and

I think rvhat can be done, is a codification of the Wash-

ingtcn v. Davi-s case, l.rhich is a fairly reCent case,

in which the court said the totality of the cireun-
stances snould be studies to see r"rhether or not
i.nviClous Ciscrinination exists. "

fir,lae apparentLy c'hanged his nind betrrreen the
ti:ne of the ilouse hearings and this testimonv,
or at least became more concerned, as he would put
it, about the results Lesl.-7

Testirnonv of Lauqhlin McDona1d. conti.nued -

(page 420) ,/-respon,ting to questi-ons c1r ?{atch;-7

j,lr. IvlcDOi.T-4,LD. I do not knor+ of a single
case and I agai-n respectfullv challenge you to
s:1or..r :ne one --that salfs the rnere absence cf bl acks from

office is ever enouqh to violate eitrer section 2 0r
the 14th or L5th amenrlnent. Not onl': are there no

cases tl}at lla're ever said that, lout e\/er:I case sa-vs



totalitY of circ., 17

preci.seJ.Y the oPPosite.

red Statement of Hon. Henr L. Marsh--lI't-ayor.,

(pace 463) "The proposed standard' '/Section 2J
cloes not mandate a simple 'effects' test, but' according

to its legislative history in the House of Repres€D-

tatives,restorestheapproachfollol.redinthepre-
Mobi16 cases under which courts must look to the
.totality of the circumstances.r BY its express

terms, the arnendrnent does not create a rlght to pro-

portional representation nor mandat'e racj'aI quotas'

Thj.sisclearfromthepriorcasesr+hichincorporate
the intended stand,arC ." f cit,ino Site -7

(473) responding to questions by Sen' East:J
l,layor MIR.SH. ... I think there are real problems r'rj'th

usinq a crirni naL law standard in tnis area of protecting

something as vital as the riqht to vote. / Because,

among other reasons, of the suggestion it $.!!g!9g,
I{eiqhts that the motives of legislators are not

materi.al.-7 o . .

AnC I think that '*hat the rilhite r'. Reseste{

stand,ar,l woulC do is not just -- urhen f say results
test, itrs not just lookina at the results; itrs
looking at the totalitlz of the circumstances, and the

results r*oulC be one of the criteria, but the nain

th:ng is there r'rouLd have to be a sho''"inqt that
there was a denial of equal opportunity to
Darticipate ihat has to be shoran in the tsst'"

Richmond. va. )



totalitv of circ., 19

Testinonv of Hon Thomas J. 81i1ev, Jr. (ReP -Va
(opponent of section 2, as amended)

(page 477) /-atiley cites Roanoke, vi-rginia, rvith
22 percent blacks, and which had a black mayor and

vice mayor, 3s evidence that at-Iarqe elections
do not automatj.callyl discriminate. I'Ie shoulrl argiue

that that's exactly the point one factor does

not make or breal< the case, such as whether there
are at-Iarge elections, but rather the totality of
circumstances. 7

Testimonv of Dr. Edtuard J. Erler (lTational Humanities

Center, Raleiqh, N.C.) (opponent of results test)

(page 4BB) FnrL"r claims White itself threatens
all juris-'.dictions without proportional representation.-7

Preoared Statement

(5oO) ferfer sees Problem as

[tfe] "=ight to vcte"lintoJ ,I
"transmogrif &itq] "

right to an effective
of that vote is

_7
the

?cte' " pr,.=") " the ef f ectiveness
measured in terms of tresults'"

!'ebruarv l-. 1992

Or:enino statement bv :latch

(page 517) "... Given the existence of lack of



totality of Cir., 19.

proportional representation and some further
scintilla of evidence, f am unsure that such evidence
is even rebuttable by a d6fendant." ,/-Cites, in
support of thi.s proposition, that Lhe lower courts
in l4obile did not consider lack of evidence of intent
and evidence of nonracial motives to rebut plaintiffs I

case. 7

Eestirnonv of Joaquin AviIa (Assoc. counsel. MAIDEF)

(page 572) "A return to the @
totality-of-the-circumstnaces standard v,ri]l not mean

that every time you har;e a disproport5-onate impact
and raciall-1r polarized voting it will invalidate the
entire DEoc€ss.rr

(577 ) Senator KEMIEDY. And is it your understandingt
that if theplaintiffs are just able to shor.r that .-there
is not proportional representation, that is sufficient
to '.'rin ?

lulr. AVILA. No, it is not, not even under the proposed

arnenCment to section 2, It '.qould not '!ce. I'Ie r'rould

have tc shotr a totalitv of the circumstances in order
to prevail.

Senatcr KEITNEDY. WeII, that is mrz understanding \

both of the llliE holding, and it is my understanding
of the princi.pa!. sr.ionorters of the House bill, and

it is the understanding cf Senator i'latnias and

myseJ.f in terms of, tne prine supDorteis of this
l-eci-sl-3ticn.

Prepared. Statemeat" - ^

(589) "The absence of rninorities on an eLecteC board



totalitv of cJ-rc., 20

ln proportion to their representatj-on in the population
is nerely a startinq point fcr rleterrnj.ning tvhether

a statutory violation exists. Such a. factor is no

different from the use of raci.al inpact in the
constitutional anallzs:-s recluired under ViLl-age of
Arlington Heiqhts 'r. Metropolitan Housing Authoritv,
97 s. Ct. 555 (1917)."

Testinon'r of David Wal-bert. Esg. ( f ormer Iat+ -ogqfesEe!,
Enorz Universitv) ( supporter of section 2)

(6L9) fpre-.Bolden cases did not require proportional
representation.-7"i,'ihat did occq.r j-n those cases was

reaII1z a verv arduous task of proof to assess the loca1
political prccess anC see '^rhether o= aot b] acks

I have not been in'rclved in anv Hispaaic l-itigation 'in

Geo:qia -- d.j-d ra're an opoortunitv to partic:.pate i n

the poLiticai- process equalIlz and 'rhether or nct
bLack-s :aC an'opportunitlz to elect leqis.lators of their
chcice. ?iere they shut out of the political
sr/stem? " /-TaaE, he says, is the question the circuit
courts exarni nerl under i.rhite 7

( 525 ) Senator I{:\TCH. }Tor'r , tyou toLd the
connittee, 'The ulti-rna+.e test in l'Ihrte

-rlouse

v. Regeste=

is, C.oes the ninc:i-ty grouo nave equal
elect !::e legislatcrs of their ehoice."

Ur. :{AL3ERT. !o participate in the
orocess, f thinl<.

Senator HI,TC!{. 3.ight, leavinq aside tlre fact that
the ccnstituticn protects persons, not qroups, l-lot'''

ca:1 a n. nc:i t'zt s c'1ance ;9 ruin electi o:rs etrer 'ce

ooPortu:litir 1q

political



totalitv of circ., 2!

equal to that of the ma jority? Isnrt tire vrord you

rea11y t+ent "PrcPortional"?
M:. I'I-C.LBERT. llo; the '+ord I qant is "some shotr"

sone chance, not no chance Iike it is today.
Senator HAICH. You are saying there is no

chance?
l,{,r. I,IALBERT. No ChanCe in the Situations where these

cases have prevailed. ...

Prepared Statement

(639) fBetore &!!Llg, one did not have to prove

intent. Nonetheless,_7 "these !^Iere all arduous cases
tbq 6ecause) notrvithstanCing the absence of any requirement

of intent, r+hat we did have to prove was not easy..
i'ie were required to prove essentially that the electoral
system in the particular county or city, taken in the
totality of circumstances, shut minority voters out of
a fair opportunitv to participate -- that is important,
there l{as never any aspect b our claims of any guarantee

of a particular result (much less a result of
proportional representation) ; it was opportunity. "

Submission brr Hon. Henrv Kirkserz (State Sen.-l{iss. ) entatled:
"Questj-ons and lnsr.rers on the Section 2 "Eesults"
Standard cf. S. \992"

(page 703) 'rfltese findings fty the district
:fhite v. Reg'este-r 7 showed that baseC on the

court in
" totality
"effectivelv
U.S. at 769 7

of the cricumstances" Mexican-Americans 1',ere

renoved. frorn the political process. . . .''lALz



totality of circumstances, 22

(7O7) /-uotes that the facts in I'ihite included verv
1ow (but not non-e:<istent) representatlon by blacks
and, Mexican-Americans. 7

(708) /-tn Zimmer the 5th Circuit implemented the
'requal access" approach, notingr that lack of propor-
tj-onal representation was not enough, but that:-7
"' ft]ne fact of diLution is establisherl upon proof
of the existence of an .
The Supreme Court's recent pronouncement in tr'Itrite
v. Resester, Sl3pIg, demonstrates, however, that all
these factors need not be proved in order to obtain
relief."' /-aAS P.2d at 1305. First emphasis by
the X,awyers' Comrnittee, lvhich 'rrote the submissionT

(715) "The rin and of itself ! lanquaqe f in !{.R. 3lL2J
means that a court may take exclusion of minority
representation into consi-deration. "

Februarv 4, 1932

Testironv of EJrr. F. James Sensenbrenner (P.ep- ilisc.)

(page 380) "l.tost section 2 lar.rsuits and there have
been verv-fe', of them have been extrenellz complicateC
and the plaintiffrs burden of proof is very difficult,
even if an effects or a results test !,rere included in
the larv. - I think tirat one aqlain '*:ould have to Look

at the total:-ty of the statute or prcceC.ure that r.ras

r:.nder cirallanqe in a section 2 chaLlenge. "

a

Seiator HATCH. ... I{ou1d lzou give us a citation to



totality of circumstances, 23

any section 2 ot voting rights case where the Supreme

Court held that intent is not required unCer

section 2?

l1r. SEIISENBRENITER. The courts have held that
section 2 has run along the same lines as the 14th
and 15th amendrnents to the United States Consti.tution.

Senator HATCH. ?he 15th amendment, in any event.
Mr. SENSENBRENNER. fn White v. Reqester, the

Court did look to the totality' of tne circumstances
to deterrnine whether the challenged system effectively
shut out racj-al ninorities from the process. I I'ould
submit that the arndndment to section 2 that is proposed
in the House-passed bill sinplv aoplies the.standard
of tihite v. Regester to section 2 Iat'rsuits that can

be brought anlriahere in the Nation, as we1L as in the
ccvered ju=isdicticns, for pre-1955 activities.

(43,3) Sena"cr iLiTCI{. ... Let me ask irou this ciuesticn:
Let's ass:ne fcr the purDose of discussion that

the seeticn 2 lanouage is enacted, anC that :-t does

lead tc proportional representation anC that at-1arge
rzoting dist:icts are outla'^re'] . trr'or:ld vcu agree t+'i-th

tbat resu'l t?
(889)i,1:. SE\TSEITBREIqNER.. lTo, f Co not agree'../itr that
at a]1r If the tctalitir cf the circumstances do sho','r

that ninorities are shut out of the electoral process

and thelz Co not have a chance to tvin f air and square,
then it r.rould be outlatved.

(392) Senator :{ATCI{. Jim, what in vour ooinion 1s the
results test? SpecJ-f j-callrr, tvhat dces it mean?

It=. SEITSEITBP.E1.ETEP.. The results test is if t1e result
of the procedure that is r:lCer chal]enge so completeI."z
shuts cut rninority qroups fron lhe electi cn Drocess
t:1at ti:ey do nct l':ave a ora\.rer of 'cerno el ecte'i- ot



totalj-t.,/ of circ. , 24

or tal..ing their case to the rroters of that parti,cular
area or state and having a chance cf t.rinninq. I ti:rnk
.7ou have 'to look at the totali ty of ci-rcumstances
in orCer to sustain a section 2 lar.lsuit.

Senator 1{ATC}I. How would you make that
d,etermination? Give me some illustrati-ons of hor.r

you niqht make such a determination.
Mr. SEIISEIIBRENNER. I would say i-n the case of

!Iobi1e, if there is no ltav that a mlnority person
could be elected to the commission in Mobile, based

upon the tray the situtaion t.'as set up, that would be a

case. Seccnd i-f there was a --
Senatcr :{ATCH. Let me see if I understand that;

]rcu are savin'l that if the most qualifieC person
runnincl --

ltr. SEliSE}IB?ENiIER. Yes, could not ,be elected nerelr'
because cf. t::e color of nis skin.

Secon.l, in t:re case of a Cistrict eleeti on

''rhere tre Ci-strict bounda.ries r'/e:e so qe:rymandered
that a ninorit,vrperson coulC not be e'lected, anC

t..te diC see some naps from some com:'runities in Texas
Curing the -touse subcommittee hearings on that

Senatcr :{\TC:I. The Gomillion case is a perf e ct
illustration.

1.1r. SENSEIIBRE.*TITER. Yes. That would be a case l'rhere

the acticn deprived a minority member frorn being

be proven under the intent standa::d. Sensenbrenne:
responds that that deoends on hor'r lonq ago t:1e practice
i{as instituterl. 7

Ser'rato= :-lATCi{. r;Ie , iust to rtelo ugAere, ,..:hat prec!seJ-r.z

is t:1e cuestion the court t.rould ask itself in erraluat:.ncl

a'l aa{.aA

/-Eatcl resoond,s that the Gornillicn tvpe ca.ses cculd.



PR.OPOR.T IONAL R.EPRE SENTAT IO}I

}TOTES FROM SE}TATE HE.q,R,II.TGS

Januarv 2'l L9g2

Openins Statement of Hon. Strom Thurmond(Sen.-N.C.,
chalrman. Committee on the Judiciarv)

(page 6O)freferring to the proposed results test,
"This radical addition to the Voting Riqhts Act

-would shift the focus of the law from a qt:estion of
access:to the ballot box: to a guestion of results or
outcome of the electoral process."

(6f) "... some would have us define di.scrimination as

something other than inhi.bitions on registering and

voting. Thev r+ould define dd.scrimination in terms of the
results of el-ections. Fcr these people the ke:/ words
are not "equal access to the ballot box" but "effective
political povrer" of '"acceEs to the ballot process.rt
These terms have recentllz been created or in part
borrowed from other tvpes of cases ',shich address
the rights of Dersons as inCividual-s.

Removed from their oriqinal context of inCividual
riqhts, these phrases have taken a giant step to
now signifiy a theorlr of political representat:-on
which requires us to move along a path which measures
success by comparing the representation of a group in
elective bodies r.rith the proportion of a grroup in
the general population. From +-hose r+ho r.roulC apply
this theorlz of Ciscrimi-nation 've shoulC seek to f ind
out wi'r1z tl.re',/' belie',re that the adoption of this



PE, 2

approach will not ..r"or."q" or talce us closer to
mandated proportional representation by' race or
ethnic group, a position which is being ! -

openly aCvocated by some in our societlz toda1z. "

Testimon of Hon I'IilIiam French Smith LT. S. Att Gen. )

(page 83)

A.G. SMfTH. It seems to me that when you are

talking about thti-change in section 2, you are talking
about a good deal more than the question of intent;
you are talking about what this r'uou1d ultimately
produce if that section is applied as its language

'.rould indicate that it should be applied, and that is
ultimately proportional representation. I Co not see

ho'.r anvone can reallv subscribe to that as a test
under our svstem of demoncracY.

(84)Sen. I4ETZENBAUM. f do not thinl< anybody does that.
A.G. SMITH. I{e are talking about election results,

not the right to vote, when lrou get:-nto that area.
Sen. ME?ZEITBAUM. You can have many other ways of

proving effect rather tban merely election results.
If there are no candidates, for example, that is
certainlv a different kind of situalion.

Prepared Statement of Flon. Charles McC. llathias ( Sen. -!1D )

(paoe 215) "I understand that some harue expresse<l
ccncern about, the proposeC ar'.rendrnent t,o Section 2 tn



PR, 3

S. lgg2. It has been said that thj-s ]anguage may

lead to a statutory requirement of proportional
representation for minority voters. I think these

concerns are unfounded. As the origi-naI sponsor of
s. 895, I can say unequivocally that Language in s. 895

and H.R. 3J-I2, as introduced, Cid not
(215) have any such meaning-"

l22O ) ". . . \{e must !s 'rar! of the scare tactics and

mis-information that will be used against the proposed

amendment to Section 2 of the Voting Rigtrts Act.
We have already. heard extremely rnisleading statements

of rrrhat the law has been and of r.'rhat our amdndnent

"rouId, d6. In fact, the Mathias-Kennedv bill r.rould

restore the 1aw in voting discrimination cases to 
"'rhat

it has been for mostof the past 15 vears.
The courts have made clear that under tha standard

in our bill there is no riqht to a quota or to
proportional representation, even Ln the context ' of
at large elections. Some have alleged that our bill
would strike d.ot*n at large elections unless minoriti'es
elected a proportional share of the candidates. That

allegation is false and misleading- "

Testinonv cf Hon. Edqrard M. Kennedy (sen'-I"lA)

(paqe 218) "Let me .iust say that what basicallY i./e are

attenpting to do '*rith our proposal is restore the
rule of la'..r as it '..ras in the i'Ihite Cecisi-on.

There is no requiremen+- for strict proportional
representation at larqe electi-ons, and to trY and state
tha+- as par+- cf our particular legislation is I
think the '.rcrds r,/ere used earlier i-n the ccurse of. the
hearing -- al smokescreen. Ir- basicalllz fails to
understanC :'rhat the courts were dealing h'ith in the



' PR, 4

I^Ihite decision and r..rhat we are attempting to dov,vrith

this Iegj-slation. "

Prepared staternent''

(?23) "fn fact, the amendment of Section 2 Ln S.I992:
reflects the oriqinal understandinq of Congress
in 1965;
restores the 1eqa1 standard that applied for most
of the. past 15 years;
is constitutional; and

-- would not require 9ll9!3E.
Section 2 - as anended would not make mere failure of

,

a"

Testi-rnonv of Prof . -,r.Ialter Berns. (American Enterorise
fnstitr:te) (opponent of amended sect j.onl2 )

(229) "... fcr some qroups it G},. right to votq
is the riqht to be represented in proportion to their
n,:mbers in 

"he 
ccmmuni.ty. I say this because the

amendeC section^2 is intendeC avowedly to reversqt,he
Supreme Court's decision in Citv of Mobile and bringl
it into line r,vith the Courtrs decision in Citv of
Rone v. United States."

"I,jhen 1s a vote diluted? When the group is deprived
of the cpportunity to elect one of the group; for
examp]-er. to quote from UJO v. Carev, rvhen the number
of blacks in a Cistrict is not sufficient to insure the
opportunitlz for the election of a black reores€ntative."



PR, 5

(230) "I am not unmindful of the fact that the
amended section 2 containe this disclaimer that: I

'Disproportj-onalit1z of results shall not in and of
itself constitute a violation of this section. I All
that means, and all it is intended to mean, is that
some factor, iD addition to disproportionality, will
have to be present before it can be said that a groupts
vote has been abridgred by being diluted. "

1233 ) "... a vote is understood to be diluted -- and
here of cour.se we are talking about not the vote of
an individual but the vote of a grbup, and a group's
vote is said to be diluted when its leqiislative
representation is less than its proportion in the
community. "

Testimonv of Beniamin llool<s (Exec. Dir. . NAACP)

(246) ." I knor.r of no civil rights qrroup -- an/ t may

state unequivocally for the NA.\CP and for the
Leadership Conference on Civil Rights that rve are not
seeklng oroportional representation. VJe are not
seeking a mirror image of the ethnic classifications
of neighborhoods or cities. I'Ie are simply seeking
the unfettered right to vote without having to prove
that ',rhich someti:res is not susceptible to proof
|-
Lt...'inten{."

(252) Sen.HATCI{. You inrlicate that you knot.r of no one
in the civil rights community that has advocated.
proportional reDre.sentation. Permit me, if you wi11,
to quJte from the Greenvi-11e, S.C. "lTer.rs r " of December

-1-3, I991, the remarlts cf Dr. VtriIlier Gibson, 'rrhom I arn



PR,6

sure vou know. He is the president, I belJ-eve, of the
south caroLina NAACP. I{e indicates his opposition to
a redistricting plan in South Carolina by statingr,
,,Unless we See a plan that has ther-possibility of blacks
havingr the probabllitvh of being elected in proportion
to this population, r.re will push hard for a new D1an."

Can you explain to the subcommittee t'rhat Dr. Gibson

is talting about here? It appears to me that he is
talking about proportional represen'uation.

Mr.. FIOOKS. I understand preciselv what Dr- Gibson

is talking about. Those are not unusual staternents to
be made. f think there is a big difference between

proportj,onal representation and representbtion in pro-
portion to their population. It simply neans that t\'e

are not looking for 00 percentage points if we ha're

42 Srercent, '.ve r.uant 42 percent representation. But it
does mean there must be some appearance of eouity --
that 'rre woulC not be satisf ies with a p1an, f or instance

Sen. HATCI{. Is that not a form of proportional
represent,at i on ?

Mr. HOOKS. ff you get to the nth degree, anY

representation is somer,rhat prooortional. ft is a part
cf our Constitution. It is not aC-
( 253 ) hered to
generalJ-v, but the 'rhorle business of redistri"tinc, ''ras

to ad.lrere to tne concept of 250p00 rnenl:ers for a

Conqressperson, 2 for every State no natte=rhat size
for t,he Senate. It r.ras set up like +-hat ....

Tl:at Dr. Gibson 'rras dealinq r,zith ''ras a precise
situaticn t*here sonebody said, "There are 30 rnembers

of the senate; would you be happy to settle for 1?"

In that l..ind of rhetorical statenent to a people, the
an-'rer ah'ravs is, "Certainllz not. rr'ie want sonethingt
that resembLes our population.' That is a far different
c=y f=o:r a nathernatical proporti-onal representaticn,
'.raich is the term that is being used here over and

over arTain.



PR, 7

Testimonr/ of _Vilma Maftinez (Exec. Dir.. Gen. Counsel,
MALDEF )

(29t) "!n rny judgment, the section 2 anendment reflects
the original understanding of Congress in 1965, restores
the leqlal standard that applied for most of the past
16 years, is clearly constituti.onal, and would not
requir.e proportional representation of quotas."

Prepared. Statement

(305feritics of this amendment and this standard incorrectly
contend that ere seek to enact a requirement of
rproportional representation I of minorities in gcvern-
mental bodies. CIearIy the standard outlined above

reouires far rnore than proof of lack of 'prcportional
representatiolt. I At a mini:num, rninori-ties would have to
shotq raci alIy polarized '.roting together '*ith other
objective factors vrhich effectively precl'-tde
their participation in the political process ot' dilute
the value cf their vote.

The issue, then, is not proportional reDresentation,
but equal access to the political Drocess. This does

not guarantee that minorities wj.11 be elected to office;
it does qruarantee that minorities r.rho are barred from
nolding office or trhose votes are debased because of
their race or nernbership in a lanouage minoritlr
grcup ',ri11 have lega1 channels through lvhich to
challengr their exclusion.



Januarv 2B

Dr) e
! l\ ,

]-982

Testimcnv cf Lauohd-in McDonald (Oir Southern Recrional

Office, ACLU Foundation, In

(372) 6qr. l4cDonald says that the cases tried under the
effects standard before l'lobile did not require or
result in proportional representatl-onl

Sen. I{ATCH. That's precisely what the Mobile.

case \,ras about. I{ad you won that, the result would

have been implementation of proportional representation
. Mr. !{cDONALD. I{el}, I respectfulllz disaqree. tr'ihat

those cases do is establish equali-ty of access.
373) And thatrs more than just rhetpric, The only

people who can determine who their rePresentatlves t'ri11

b€, who will represent them proportionately or
otherwise, are the voters' ?here is no way that the
court in those Cases can insure proportional represen-
tation. All the court can do is establish a system

cf access. As a practical matter, +-hat j-s true."

"So I quite honestly will have to te1l lzou that in
my own experience, proportional representation is
neither r'rhat the folks want or tzhat the cases have

reouired or '*hat the continuation of the Zimmer

standard woulC entail. "

Prepared Statement

\-r
(3gO) (ases before yeE!}.. used a results testrl
"lle have had the experience of cases that operateC
under the principle of not requirinq proof of
discriminatory PurPose,
( 331) and yet those cases did not
in the sli-ghtest involve any thing remotei--y-:esembling
prooo:tional reDresentati-on or ciuota aystem. "

After Questicn bv i{atLh:
(420) "I do not l<nor.+ of a single case and I



Pr, 9

again respectfulllz challenge you to shol'/ me one

that says the mere absence of blacks from office
ls ever enough to violate either section 2 or the 14th

or l5th amendment; IIot only are there no cases that
have ever said that, but everlz case says precisely
the opposite. "

Testimo e (Reo.- rl1.

(4OB) "Very simply, then, what we are ta]'king about

here is quotq representation based on race, a principal

Ei.J whj-ch, though camouf laged by the rhetoric of
effects or results, nevertheless denands so{ne rather
dismal assumptions. It suggests the ','rorst kind of
racism, a policv which concludes that prejudice is
infinite, that blacks cannot be represented by

whites and,, with do':al 1ogic, vhites cannot be repre-
sented by blacks."
Evde sr:crgests the I'Iashi.ngton v. Davis approach as a

rniddle ' gro,:n.lJ
J

"$he political issue here, tbough, is proportional
representation, just as it was in I9!!1e. "

(40e)
Sen. EAST. You put your finqer on thrs question cf
proportlonal representation. If l.rnat lrourte triri-nql to
co is gr133.sntee tn the statute the right cf indi'riduaLs
to register and vote, irrespective of race, thatrs one

thing, i:ut r..7]'l.et:e a st-atute is designed to g'uarantee

specif ic =esults, b€ it '.rhite represeniation, b€ i:
b1acl: representaticn, llexican-:1:rerican or'"':l:ater/€E,
p:rccorticnal reDresenta+-ion, thati a :rho1Lir net'r ccncef:t

i-n,-the Ane:ican Cemocratic electo:al Droeess. "



PR, L0

Test,imonrz of Prof . Barrv Grcss (CUliy)

House bill's
(424) $eferring to the,/disctairner,:)

Prof . GROSS. ... That language must mean, can only
mean, that prcportionality is the major factor in
judging a violation, that lack of proportionality plus
a scintilla of further evidence proves the violations.

The committee report its61f bears tnis out in
commentarlz. I quotue i

'' ?he nurnber of minority elected officials j-s stilL
a fractj-orl of elected offj-ci.als. Ooly five percent
of elected officials in the Southern corzered states
are blacl< in an area where ?6 percent of the
popui-aticn is black. .

Sen. llATCH. Yotr point that the mere lack of propor-
tional-itlr pLus one other scintilla proves the validity
of a claim in a case seems to be very significant.

(c=o"" sar,rs the i{ouse statute and cases cited in the
\,A

I{cuse ="ooti:\-J
"make it clear that the inrpermissible result is diluti on

of the potential numerical strength of a minority
voting bl-ock, anC the measure of that strehgth is the
nr:mber of ninority representatirres it orrght tc e1ect.
Eiti:er the in+-en+-ion behind some chanqe in voting
regulations or structure must be decisi'ze, oF lacl<
cf prcportional result rnust be Cecisive. No other
stanCarC is offe:eC, and inCeed there is no other
stanCard. "

teZl ) Sen. H.lTc:I. . . . Section 2 r'ri 11 create sinql g-
race distri-ctsl] Don't lzou f ind even the suggrestion
of i-mpLementing such a color-conscj-ous system
-anrahanc'ih'la?
-9J!

Prof . GLOS5. Tha-" is, f th-i-nl<, constitutionalll.r
inpernissll:le. I beLieve it to be abso'lutel:z repre-
hensil:f e. The Constitution, 3s r- read. it speaksionly



DD 'l't
! r\, 44

of indi-viCual-s and politj-cal subdi'risions. f knorq of
no provision that makes any room for proportional

' representation.
Sen. HATCH. I made the point yesterCair that politj.cians

should be representing individuals, not blocks of
special interests.

Prof. GROSS. I believe that's true.
Sen. HATC.'J. Doesn't this proposeC biLl move us

toruard representing blocks of special interest?
Prof . GROSS. I believe that trhies can represent

blacks and blacks can represent rvhites, Ua"ar"e we're
all citizens.

(429) Sen. HATCI{. Horv is an "effective vote" defined
in terms of group politics?

Prof . GROSS. J vrould think the onl;r way to define it
is that irour group has an effective vote if lzou vote in
the prcper Dercentage of people of your qrouprs
pe:suasion, whatever that happens to be. i'Ihatever
groups are protected by the act r.rill then have a

proportional right to representation.

grepared Statement

(434) "No one has a right to slate a candidate, or to
lrin an election, or to proportional representation.
Every citizen has a Ccqstltutional right to be free
of fet fs:-c] or hindrance in the attempt to do the
first tr.ro -OE. these. Those rights are not violated
absent actions done 'rith the intent to prevent
citizens either from voting or from the attempt to
slate cnaCidat€s.'l

(435) "The Constitution neither provi-Ces for nor
permits .oropcrtional representation for oroups.
IhC:-viCuaLs alone are reoresented thrcr:oh political



PR, L2

subdivisions.

(442) l.Proponents of the effects standard and propor-
tional representation finC fl "non-existent right:
to be represented as a group and in electoral results
in numbers reflect5-nq their voting strength. This
they attempt to butress b1z arguing that unless thdir
is some such right, then their votes trave lost fu1I
value.

But they are l.rrongt. There is no such Constitutional
right. The value of a vote is'fulI r+hen it is
freellz cast and accurately counted. "

Testimonll-p1E l{on. ifenfy L Marsh (Mavor, Rich .)

/(449) LCites 'l{hite v. Reqfester "equal11z open" approach
as what is sought, not oroportional reDresentationJ

(470) "In man:t cases in R,ichmond, blacks have voted
to elect whites, rejecting other blacks, and so rshat

',re are asking for is not proportional representation
by this amenCment, but the right of minority people,
black ci-tizens of this cor:ntrY, to elect the represen-
tatives of their choice, and to prove in court, under
the new standard, they would harre to meet a burden
of shor+ing that they lrere denied eor:aI opportunitlr. "

(4i51 fin exchangre rqith Flatch, ]Iarsh salrs the Pre-
ls

Mobil&. post-i'Ilrite cases had saf ecTuards agrainst
proport ional representatior{11

1ts*i-n5n'ilof D: Erl'..:a-rrl J. Erler (ltational Huinanities
Center') (o.ooonent of res,.rltg te.st)

(.13:l ) Err." that tne il!!;[s- case itself meant that



DD 1?
I i\ , : J

lacl< of proportional represeniation together with
other.factors was a violation, and that this threatened
almost all political entities 'that l-ackEd proportional
representation J

"The argument in its simple.st fcrrm presumes that
a political process equally open to minorities tuiLl
produce proPortional results. "

l43g) "The tncuseJ comrnittee's =eference to -t{h:-te

and its progeny render unrealistic its. assurances

that the revised section 2 will not create a right to
proportional representation. The courts rqi11 undoubtedly
regard tlre anendment as an imprimatur for the
decisions that have alreaCy, iD effect, required
proportional :epresentation based' on iace.t' Qeferring
to @i!g|s "equallv open... equal opportunity to
eLect legislators of thelr choice... "

(5L2) Sen. I{ATCH. (erooonents of section 2 bel-ieve it
r*on t t lead to prcportional representat:-orf,

Dr. ERLEB. f tnink that belief is mistaken,
because obviously the standard that r'rilL be created to
iest tl"re right to an ef fectj-'re vote , ot to test whether

minorities ha'.ze equal access to po1-iti-caL processes,
r.ri11 be results, anC results ean be measured on1''l brz

the stanCard of proportj-onaI representatron.' .oo

..- f{or.nd.o rrou knorr that someonet rioht to participate
ecuallrz i:: the pcj-itical process aas been diluted
rrit:rout lcol<rnq at the result? ?he stanCard t:rat t'rr1L

be tne test of dilution must inevitabltT }:e

proporticnaLitrz, especiaJ-J-y since the o1d arguernnt that
equal aecess to-the ballot woulC necessaritLlz 'lead to
::ol-rticaL por..,'er fc: ninorities has
(513) been disPlaceC by the
proDos:-tj-on that tire poLitical Drocess regardless
of eot:al access -- 61151 crcCuce ectual res1-11+-s."'



pP 1A-..,

Februarv I LgA2

Prepared Statement of Hon. I'1. Cal-dr,re11 Butler (Reo.-Va.)

(54I) QnCer the "effects" test] "... State anq:l

1ocal officlals trrould b€ requireC to study prospective

votj.ng prccedures to determine their 'reffect" and

adcpt onI'/ those r.rhich statlstically maximize the voting

inpact of each'l minority qroup ',Iithin the eLectorate.'l

frrr", dny 't ocalit'r '.^rithout proportd-ona''l - representatlon
r.rould be .t:rlnera:feJ

.ljrTestinonrl of Jo uin Avila (Assoc Counsel I"1i\LDEF )

A(564)Ir.l':lte d.oes not rnean propor:tional representation
r,rhites have been electeC in !{ispan!c Cistrictsr\ "So

}re are not tall<ing about guaranteeina the election of
a partlcular minoritlz or Hispanic canCidate. I'Ie are

talking about a'.,oicing any fraqmentation of a cohesive

ninorit'/ voting conmunitY. "

(573) Sen. EAS? ... I think this proportional representa-
tion, this effects test, this guarantee, is groing to
fragment and po1-arLze anC eliminate harmonv in
Anerican politics. All of it goes bacl< tc rvhat I
thinl< aqlain is a misreading of the 15th .\mendment,

rhich is the right of each and everlz one of us to
reoiSter and vote. But r./e certainl:z ought not to read

it to suarantee the right of pa=ticular eli:nic,
reli-oious, cr racial qroupinos to hold cffice. I'Ihat do

you think of it?
!1r. AVILA. 1{e)-1, f Co not think our position has

ever been to have a quaranteed ilinoritv seat in any

elected i:ocy. o'ir orqanization inr-erprets the 15th

-\nendment -- r^re used to, anvr.^tav, orioi to ilgbile --
as not cnly- touchincr uDon phvsical access to the polls

l:r'rt a1so to iac'.:nbent situations 'qhere wou have an



PR, l-5

electlon struc''-ure
(374) ttrat dilutes or minimizes the impact

cf mj.;rority voting strength r*hen the rninimlzation or
dilution of that vote is based on racially polarized,
voting and is based on a historY of 'roting discrimination
and. discrimination ryithin a' politicaL subdivj-sion.'

{tie,re not after proportional representation, and

i'ilrite had no such requirement) None of the cases

that were involved in ?exas or other jurisdictions rvith
vrhich I an fami liar even had incorporated within their
remedlz the notion of a porportional re.presentation
scheme. Rather,, th6 focus was on avoiding the
fragmentation bf a sohesive rainority votinc, community

in the context of racial11r polarized votingr.
So the amendment to secti-on'2 r,rould not raise the

notion that rue are seeking 5'o $usrantee rninority
seats. In fact, all of our litigration in the Southwest

has never used that as a basj.c prem:se. The premise

5as allays been to try to preserve or portect the
integrity of a cohesive minority community in the
ccntext of racially polarized voting.

I

I In Texas, there are 3 majority Hispanic districts-
represented by ;\nglosl)

So tre a::e not talking aborlt.'- guarant,eeing the riqht
of minorj-ties to be dLectecl; we are tal)<ing about minorities
havring an impact into the poJ-itical process and to make

sure that impact is not beinq ainrrnisEred becar:se of
racist.-coneerns.

(575) Sen. KEITIIEDY. Do vou ever find a court in anY of
the cases that rTor: have reviewed that has required
q'-rotas or propo=tional representation, iil vour
research?

Mr. AVILA. ]To, I have not.
Sen. i(SlTlTEDY. Even in usinq the standard grior to

t5e l40br-Ie case?



PR, 16

M!r. AVILA. ltro, I have not.

(577) $'enneay says H.R. 3112 incorporates whj.te,

which does not require prpportional representation,
and Avild "A=""")
Preoared Statement -1

(5g9) ffection 2 relies on the standards of l'IhiteJ
',None of the litigation undertakrn uncler White ever

adopted proportional racial representation as a

requirement for remectYing a
(se0) constitutional 1y def ective

Testiinonrr of Davld I'ialbert (Ex-Lar* Professor Enc Univ. )

( 519 ) ftavinq lS.tigated many vctins rights cases

before }lolcile, he can say that judges never found a

',riolation srmplir because of lack of proportional
representat:-on .J

( 5 3O ) Sen. EAST. . . . I r'rouId, submrt, 3S one l-o'-'rl','

freshnan Senator if rrhat 'r'8 nra.llt i s prc-oorticnaL
represent,ati on, tie:.! '.,re ouqht to anenc tl.:e constl{"ttion

election structure.'l

Q""ar.ott , does not require et,ot"" J

Testimonrr of Steve Suitts (Execo Dire , Southern. Req'ional

Counci L )

l'(599) fattsh salrs that results test is measured by

proportional representation the court t+ould

look at r*hether there was prcportional representation
and. one other scintilla of evicence]lJ



D: 1?

and aal/ 5o, that racial rninorities r,?i11 be guaranteed

X pereentaqe, and f presume is qrill mean racial
rnajorities r+iLL be guaranteed X percentage.

( 532 ) Mr. I'IALBERT. . . . Most assuredlv, f would not
suggest that we are talking about guaranteeing results.
I t^rould agree vrith you there, and I do not think we are

talking about proportional representation, and I l+ould

Cisavo,rl any relationship'.vith proportional representa-
tionalists. f do not suPPort that.

------------U

Februarv 2. 1982

Testirnon.z of Prof John Bunzel- Hocver fnstitution

(55?-53) Gurr= the attenpt to tet:rrn to pre-l'lobiIe
focus on results neans proportional representation.
Drarrs a pa:alleL with affirmative action.]

-(555-55) lunaer questioning bv Hatch, Bunzel says

lacl< of proportional representati-on plus a scintilla
of eviCence wou.ld lead to an adverse f inCing Cespite
t::e d.isclainer of H.R. 3112.1

Testlnoq',r of Hon. i{enr',2 J. Kirkserz (State. Sen., Jaclcson.

DIiss. )

(669) "UnCer the standarCs aoplied bv the Fede:al-

eourts -oricr tc the So?ile d.ecision, ..re have never
ororzed ou= case sir'l.plrz bir sho'..rino the Lack of propor-
t-i-cnal geo=esentati on, nor ha'/e '.'e obtained prcpcr-
tronal reoresentation as a remeC-v."



DD ]A! -1,

Testimonv of ProI. Michael Levin (CUIIY-Philosopilz)

( 7Ie) p"tlor, 0\
voting itseLf. "

"is a move toward quotas in

Testimcnv of Armand Derfner (.foint Center for PoliticaI
6tuaies )

(796) "The results test of section 2 is'supposed to
be a return to the standard of White v. Reodst-er

which was famiLiar in a good number of cases Curing the
1970s untj-L the Mobile case essentially sgtpplanted it."
funaer w:rite7 "tl:rere was never ant/ sense of a quota
l) 

-

slzstem or a prinr!:-pl-e of proportional representation.
Quite the contrarj/, that noticn rvas specifically
rejected. "

J
(gOO) fiuoting from Judge Chapman in Mccain v. L,zbrand Il-'
" rBlack voters have no riqht to elect any particular
candidate or nuraber of candidates, butthe law requires
that black voters and black candidates have a fair
chance of beincr sr:ccessful in electiorrs.r'

Preoared Staternent

(321) "In these situations f"rl... n:-norities have been

sirut o"t) , the soal of a changre is to create an

opportuniir -- nothing more than an opportunity --
to partrcipate in the political system. Prooortional
representation is not the goal, and illusor1z fears
about prcporiio:ra1 representatlon should not be allowed
tc justify' maintalnj-ng a slrstem that shuts out an

entire seqnen*. cf the population."



Di) 'l qr t\ ,

Februarv 4 L982

Testimonv of F. Jeggg---sensenbreaner

(839)Sen.GRASSLEY.Pleaselookatthelast
sentence on page 5 of Your testimony, and then I want

to read from page 30 of the House report, the last

sentenceonPage30.Iqruessnypointis,Iconsider
that the two sentences do not square. If they are

intended to, I would like to have you. expLain it or 1*

if there is an inco'nsistency, then explain that as wellt

YouSaYl'.EventheHouse-passedbill.sstrongest
supporters rvill state it is not itq intent to decide who

r.rill I.rin elections but jsut to make sure that the rules

apply fairl1,l to all the participants.,' Then on pagre 30

from the House reoort, I quote, "It t'rou1d be illegal

for a particular state or local body to permLt a bLoc-

vcting majorit,.r over a sr:b.stantial period of time conci
(990) sistently +-o defeat minority cancidates i

oi'band.idates id.entif isd r^rith the interests of a racial

ol: language minority. "

!4r. SEIISEIIBRENITER. I r,rould drarrr vour attention

to the two oaragraphs whj-ch precede the paragrap'tr from

r,rhi-ch -vor-t read in the i{ouse comm'i-ttee report'
Sen. G?3SSLEY. I harre also reaC those, too'
11r. .SE}.ISE}IBREIn{ER. I thi.nk that the sentence that

vou have:ead, has to be read in the total conte><t'-of

the cliscussion tha-' the House Judiciary Committee rnade

relevant to amendments -to tBEtiSE 2 of the act'
riuotes langiuage salrinq/proportional representition

is no" i1 itself a violation of section 2, nor is

tlrere a ri.ght to it as a rerneaYll

?l-:en.it q:es or br,, saizine tris ls ::ot a ner.'r standard,

an4 tallcs a5o':t ',za:icus cther iactc=s such as single-
a:ra| rror.irr: a: colarit1z of voti:rc groups ''rhere peoot e
J--J e i e 

-<-- -. ,



It !

PR, 20

vote along raclal Iines, .and the Like.
scn. GRASSLEY. If the determination from the House

committee statemtBt that I read -- the last scntence
on page 30 -- is a determlnant, then the remedy could
be proportlonal rapresentation.

Mr. SENSENBREN$ER. It does not create a right of
proportional r€Presentation. I do not think that
readlng the plain langruage in the statute wouLd lead
cne to the conclusion, o! would, lead a court to the
.conclusion thst .a proportional rePresentation remedy

was anvisioned by the Congre!,s at all'