Legal Research on Voting Rights News Excerpts 1

    "l'he decision on rvhat standard to use should not be uade on the basis of what
facilities the finding of a violation," the staffer said, .,but on what is fair.',

lFrom the Wall Street Journal, Jan. 19, 1082J

Vorrxc \YRoNcs

New amendments to the Yoting Itights Act of 1965 are rrp for Senate heariugs
this weck aud we wonder if the subeommittee on the constituHon will notice that
they have a strarrge little quirk: In the rrarue of protectiDg the rig.irt to t.ote
they expand federal porver to outla$' Iocal elections. 'rhe coirtradiction escaped
notice in the llouse, n'hich already has passed the ameudmer)ts.

1l'his seems to be a case of Corrgress rrot knorving where to stop. The act, orig-
iltally designed to overcome systernatic denial of irccess to thelxrlls in certairr
Southern states, has largely accomplished its purpose. In lUississippi, for et-
arrrPle, 67 l)erceut of the eligible bla<:ks are registered, a telfokl irri.iease from
190;. But in 1975 the law rvrs expautled beyoud the south rnd exteuderl to "lan-
guilge milorities" ils rvell. 'l'otlay, ber.ause of .'trigger ntet,hanisms,, that invoke
the larv rvhere violatiolls are suslrected, all rotirrg districts in nine states lnd
sorne irr 1il others are required to "preclear" $'ith the Justice Departmeut any
prolrose<l charrges in election lrrocedures. Thirty states are recluired to provide
bilirrgual eler:tion nrrterial and assiitarrt,e.

Around 35,000 proposed electiorr lan' r.hanges have heen submitted to the .rus-
tice Department since 19ti5. Of those, ,Iustice refrrsed to allow g11, the bulk of
rvhich involved alleged reductions in .,minority" 

','oting pori'er through districting
changes and use of at-large as opposed to distriet replesentation. In some cases,
.Tustice has blocked electious; Nerv Iork City, for example, has yet to hold its
19t11 City Cotttrcil elections because oll n reclistricting dispute witir \Yashington.

In only about a tenth of these cases did Justice fnd any "intent" to disciimi-
nate; in the rest, under the act's strict ,'preclearanee" tesi, it merely founrl that
the proposed changes would have a dlscriminatory ,,effect.', This ,ieffects" test
currently applies only to those states nnd localities which had a history of inteD-
tional discrimination or tlisproportioDate voting petterns.

The Supreme Court has ruled that irr other. parts of the country the govern-
ment must flrst prove "intent" to discriminate before it can apply tle provisions
of -the act. Moreover, in upholding Mobile, Alahama,s at-large vbtinglystem in
1980, the court said that some existing electiou practices may resultlniorv rep-
resentation of minorities amottg elected officials but that doesn't itself constitute
"purposeful" discrimination. "'l'he lSth Amendulent,,, it atlded, ,,does not elttail
the right to have Negro candidates elected."

The House amendments to Section 2 of the Yoting Rtghts Act would depart
dramatically from the Court's logic. 'l'he federal goyemment would no longer
I)ave to prove "intent" to discrimiDate irr elx:tions. rt could merely cite voting
practice "results" in alleging diseriminatiorr. The amendmerrts rvould obligate the
Justice Department to revien' electious in every state and municipality in the
natlon and to look not only at proposed changes in procedures but also it every
existing eleetion law. 'Ihe biggest target $.ould lil<ely be the at-large system of
votiug used in two-thirds of the moderatesize munieipa.lities in theU.S.

Now, the at-large system isn't perfect, but it does have certain merits and,
indeed, has often been adopted in reform movements. X'or one thlng, it makecit impossible for incumbents to haug onto their seat through redlstiicting.'We learned s long time ago that when you allorv the .X'eds to assess ,,results,,,
they end up doing it by essentially racist methods, dividing the community intb
the various races and ethnic groups the law happens k) cover and trl ing to pro-
vide-each wlth a representative. Somehow this doesn't strike us as the-way we
should be moving if we are trying to remove the vestiges of racism in Amei.ican
society. Moreover, we don't flnd it comforting thot the result so far of many



768

disputes between the I'eds and the loeal authorities often has been to suspend

if"[dr", oi.t.u""rri.ing uoieis ana allowing the incumbents to stav in power.

'Ihe ameltdments tbe Seuate will vote orlsoon should be srubbed in favor of a

return to the intent t".furr.fo planned-phase-out of the Voting Rights Act alto-

;;ffi;; ;". it il;;* i;";;.i";i; ;{"ent that no one is being kept rrom the

oolls because ot tris racJ, iiee-a 6. 
"oto"' 

Otherwise, l,l'e will end up with more'

irot less, racial and ettrnie polarization'

Jtrlom the Rlchmond Tlmes-Dlspatch' Jan' 20' 19821

"ErrBcr" Vrssus "Irtnwr"

If the U.S. Senate concurs ln the House-passed Voting Rights Aet extension

bill, Iocal and state So;ii-"ni"-couiA f.," subjectetl to tremendous harassment

fr"v !.o"ps alleging violations of their voting rights'
The bill,s provisio, til;;;idilr"iu-r--i"u"iins chaotic regyl-ts.would provide

tfraino voting practir," or ptoa"au.u''s1all 5e_imposed or applied.Sy any state or

political sutrdivisiorr i" o-oiu"n". "'iricl 
rcsults in a denial oi abridgement of the

i.tg-if to uotu], [rtalics uha"a.t;rtu provision in.the present law that it would re-

;E;; ;;y- i;at'noi.otinipiaciice oi.procedure..,shau be i[rposed by any state or
political subdivision t" ?6ri,-o. tbridge the right of any eitlren 6f the United

States to vote. ."" i; oth;" words, lf any aetion had nn efJea.t tbat gom@ne could allege s/46 de1y'

irg 
"i""rrrfogirrg 

ti,e rilfriio vote, ,rat action could be challenged in court, even

if 6rere were no inte,t il.tralever to discrininate and there rvere legitimate rea-

;;;-f,- the action, entirel5' apart from utv racial issue'
No fair-mindeo persori'iiir,rt5 t" i"" anv inaividual's right to. I'ote.denled or

aU"iagea, *Uutn". ifre aeniat or abrldgement r,s-intentional or unintentional' But
flre ,,right to l,ote" orto.iir"i,iouarv-inierpretea by the Depar-tme,Tt.of Justice and

the federal courts to g, t* fr"V."A the q-uestion of castinE of ballots. I.t ls held to

be a denial of t pe""orif^t;iil;;icl't" if' fo" example, anv actiop-is taken to
,,dilute,, his vote. rf t,facf, "itireir'i-iotirrg 

iigt ts are i'iolateq, accordlng to such

in"i"ipi=titio"s,-il a citv a"neies territo"itnat brings ln a large number of whltes'
resulting in a situatiol l"-ii'rri"tt itre trtacts lrave Iess loting power' proportion-

ately, than they forlnerly had.
In seven Southern stitei--includisg Yirginia, and in parts of 16 other states'

tbo efrect rule already ui,iiilr-io o"ti]:rst^a"Xen Uf st&tes and clties since the Vot-

iiii iiigi,ts  "t 
ir", "iisiiinily ,u.iuo ,,t ,Str. .Tliese are the areas corered lv the

nreelearanco provision o-fi1i,Juit, 
"reaning 

that no change affee-ting voting ln these

'['.X';;;";; 
';;;;^;ith";i-"pp;;;i orihe Departmcnt or Justice or. the U's'

I)istrict Court of trre IliJtJc['<i-i:oii,"rtia. Und6r the proposed. extenslon of the

la!r'. ttre er7ec, provisio";:;;iA ;pplt;;;; i" larvs enactid oi actions taken' before

1965. It n ould apply "utio"*iouiirot 
just to the preclearance areas ; if there is to

t c sucn a provision.-it should apply to the whole nation'- -s"ilhd rnect .rle ."o.,f6 fGiriong anyrvhere. It could easily be interpreted as

""q"i.i"s "rcial 
balarrce, * propo"tlonai_representation. Ilinority voters might

"rii""A,"to" 
example, that a-citl' that adopted at-large elqctions- 100. years ago

.ritf, no'."-oie intention to discriminate rvas nevertheless discriminating against
them because they were "ot 

iep."serrted on city council in proportion to their
numbers in the eitY's Population.--Tirginia's 

aa Oistrict'tt*p. ii,n*ur J. Bliley {l.,yho sought unsuccessfullv to
g"t i-r[ "n."t 

provision si.iiLe" from the bill, tolal his colleagues that if that pro-

vision betome,s law, t unareas of torvns and cities that have at-large elections

"oota 
u" brought lnto court and perhaps fgrceg.to adopt district eleetlons.""nup. ll. caitlwelt nutier ot virginii's 6th pi:trict, who waged a- strong flght

agairist oppressiye p.r*i."ion" of tiie House bill, points out that under the e/Icct

"if",;irr"-"v 
ut-tu.s^" electoral system in the.country in which-ltinority grouq

"aodiautes-*-ere 
not er"clea i" proportion to their numbers would be suspect of

i*iri Ofi*f-irato"y." it-"Juia, rre aeelares, be- "a dangerous step to'prards estab-
iirniig a legislative precedent'for requiring that speeial -grou^ps within the na-

lionaf"efecto-"ate be r6presented in proportion to their numbers'"- 
U"ae" tne existing preclearance-re{uirement, the city of Richmond,-it will be

"e.utteO, 
had to at,inhon at-large coirncilmanie elections after it had annexed

i;;ilori from Chesterfleltf Colnir. The Department of Justlce and the federal



7ffi

courts said that in the wake of the anDexation, which brought many addltional
white persons into the city, at-Iarge elections would dilute the black vote, so
the city had to adopt a district system.

T};'e cflect provision in the extension bill would not apply only to the question
of at-large vs. district elections, of eourse. Anything related to voting would be
covel.ed. Voting precincts which had been used for meny years might be chal-
lenged as being so located as to discriminste against certain groups.

In a reeent opinion in a Yoting Rights Act ease, U.S. Supreme Court Justices
William H. Rehnquist and Lewis tr'. Powell Jr. called the preclearance provislon
of the act "unreasonably burdensome." They deplored "a system which places
such discretionary authority in the hands of a few unelected federal ofrcials
[of the Depertment of Justice] who are wholly detached from the realities of
the locality and the preferences of the local electorate."

The burden imposed by the Yoting Rights Act could be signiflcantly increased
if the llouse's extention bill, or one like it, were approved by the Senate and
beeame law. The Senate subcommittee on the Constitutlon today begins a serles
of heorings on the Voting Rights Aet, and there are reasons to believe that the
Senate u'ill display the good judgmerrt to come up rvith a lnore reasonable bill
than the one approved by the House.

[f,'rom tbo Washlngton Post, Jan. 26, 19821

YorrNG Rrorrrs: Br StnoNo

Later today the president rvill be rnaking, flrtal revisions of his State of the
Union rnessage. Anroug other subjects he is expected to &nnounce the adrninis-
tratiorr's positiol) on extension of the Yoting Rights Act. 'Ihe attorney general's
scheduled appeararrce before the Senate Judiciary Courmittee was postponul
last rveek because thnt position had not yet been lirtnly established. Until the
policy is set in t)'pe there is still time to urge the plesitlent to support the House-
passed version of this bill.

The }Iouse bill realfirns the nation's comrrriturent to protect the most lmpor-
tant right guar{rntee by the ConstitutioD to all our citizens-the rigllt to vote.
lVhen minorities ar€ denied full participation ln the electoral process representa-
tive government is flawed. 'Ihe Voting Rights Act, passed originally in 1065, hue
beeu elorlnousll' successful. \'oter regstratiou of lrriuotities in the cover.ed states
has gone froru 29 percent to ol'er 50 percerrt in the Irrst 17 years. The rruntber of
blacli elected offcials in these same states has increased frrom 158 to 1,813 in the
last 12 years. llut as Professor Howard Ball s trticle on the opp(rsite page

,demonstrateg, efi-orts are still being made to subvert the law and dilute the vot-
irrg lrorver ot' lriuorities. 'I'he votillg ll.ights Act is the rnost poryerlul weapotr
available to defeat these elforts.

Controversy has centered around Section 2 of the bill, as passed by the House.
'Ihis llrovisiotr would allow courts to consider a nuurlrcr of factors, including
diserirninatory efrects of a larv, in deciding rvhethcr that lan'derries or abridges
the right to vote. Opponents of the measure say this would require c€urts to
strike rtown any voting slstent that di<in't result in proportioual representation.
Not true. It lvould simply reinstate the standard used by the courts before the
Supremo Court decision in Mobile v. Bdlden, a 1g8O case requiring proof that
tlte tlrufters of the larv in question intended to discrinlillate-u standerd that is
virtttully impossible to rneet sirtce the legislators in question lrave all been dead
for yerrs.

In earlier cases the Suprenre court had considered the totality of circum-
stattces-inelrttling eleetion results responsiverress 0f eleeted oflicials to the needsof minorities, nominating procedures and history of discrimination-to deter-
tttirte rrltetlter tlte cltullettged systelrr really slrut out raeial rrrirtr;rities. In a 1g71
caso'luhitcontb v. chaois, the court upheld at-lar8e elestions in rndianapolis even
thouglt black voters streltgth u'as diluted, because there was not sufficient addi-tional evidence of discrimination. 'Iwo years later, in Whitc v. Regeiler, the
court struck dolvn a sitttilar s}'sterD iu T6xas because other evitlence ofdiscrimin-
atiolr $'as preserrt. I'hat is the standard to u'hich the House-passed bill rvould
retll rlr.

'Iltc llresident has received some very l:ad advice on civil r.ights matters fronrItis tssoeiates in reeent ryeeks. I'he sarne people rvho toltl hirri ttrat lt tyould be



?70

wlse to restore tax-exempt status to segr€gated sehools are urging him to op
pose Seetlou 2 as pa.ssed [y the House. Thts bill was passed by a vote of 389 to
1+. tt nas been cosponsoretl by 61 senators---+nough even to stop a fllibuster. The
president sh,ruld listen to hia friends on the Hill rtnd not JIst those in his own
'offices in deeiding what message on civil rights he sends to the country tonight.

[Dditorial from the W'ashlngton Post' tr'eb' 11' 1982]

Ma. RPYxor,oe' LETTEB

we ofrer you today a rather unusual discussion between Assistsnt attorney
C""e".iWifiiam Bradford Rtynolds, whose letter appears elsewhere on,this page'

anO or""etoes. \Ye say orrrrarit beeause it is not sim-ply an argument afuout prin-
;iil";;;ii;; 6;-;hi"h t;sonable people misht disasree, but an argument about

ll,etter to the Edltor of the lvashlngton PoBt, f'eb. 11, 19821

Trtr Vmrno Rroxrs Acr WoBKs As I8

By editorlal comment ("Voting Rights: Be Strong," Jan.26), The Post urged
end6rsement of the House-passed amlndment to Seetion 2 of the Votlng Rights
Aci, whieh changes the stendard for determining a vlolation from_thj current
,,intent" test to one that requires only a showing of dlscriminatory "effeet." Re-
markably, the case made for this position was that the House blll merely seeks
to reinsfate the standard in use [efore the Supreme Court decision ln CitU of
Mobil,e v. Roldcn.

In the 198O Mobile decislon, the supreme court considered seetion 2 of the
Yoting Rtghts Act for the flrst tlme and concluded that proof of discrlminatorT
.,inten-t', lJ necessary to establish violations of that provision. Contrary to The
Post's edltorial, this decision signaled no ehange in the law.

The act itself is unambiguou- on this point. As Justice Potter Stewart observed
n ioOAe, Sectlon 2 was eiacted to enfoice the guaranty of the X'ifteenth.Amend'

-""t, "",i 
that eonstitutional provision has always, requirel proof of discrimi

"ato"v 
intent. Had Congress iniended to include in Section 2 an "effects" test, it

ce"tainty knew how; ii feOS, and again in 19?O and 1975, Congress explicitly
included an ,,effects" test in Section 5 of the Voting Bights Act (applicable only
to setected Jurisdictions), but chose not to put-the same standard ln Section 2

(applieable nationwide),'Nbr 
have the eourts sgggested other*'ise. The Post points-to t-wo decisions

(initcomO D. Chaoia and,-Whtte 1). Regester) -ln support,o,f its claim that an
,)efrects" test did in fact exist in Section 2 before the Mobil,e declslon. Neither

"u."-,-non'"1i"rr 
even involved Section 2 of the Yoting R.tghts-Aet; rather, they

frotfr'"*""r""d claims brought under the Equal Protection Clause of the Four-
teenth Amendment. Moreovei, 

"re1 
on the tr'ourteenth Amendment question, both

Wtvitcomb and lVhite tacitly recognized that proof of dlseriminatory intent is a
,"""..u"y etement of the i:onstiiutional offense. Justice Stervart's opinion in
trIobile makes this clear, and The Post's editorial suggestion to the contrary is
simply legally ineorrect.

eiso uisouna is The Post's assertion that discriminatory intent- is ''virtually
i-pos.iUie;; io p"oo". Several Supreme Court decisions have made lt abundantlv
cfe-ar tnat a "smoking gun" in the form of incriminatory stgtements or documents
h;.;;o;"'b"er, ""qri.dd. 

Intent in this area, as in any other, qay b9 proved by

"i""""r.iu"iiul 
and indirect evidence. Notably, the equal prote.ction_clause of the

f,'ourteeuth Amendment, responsible for so many historic civil rights advances'
has a similar test.

ifreiJis a general consensus in this country that the temporary provislons of
tne i'otini niiit. Act should lre extended foran additional period of time. Con-

i"".. .nolfa iot, nowei'ei introduce- uneerta-inty and confusion ln!o. what has

8""" tfr" most su'ccessful piece of civil rights legislation eve^r enaeted by making
rJ A"r*"ii" u .nurrg" in iis permanent piovisions. Section 2 therefore should be

retained rvithout change' 
wrr.r,reu Breorono REyNoLDs,

AEsistant Attorneu Generel (Cioil, Rigllts Dioiaion)'
Washington.