Legal Research on Congressional Record S6511-S6517

     

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‘ _ * Arracmsnrr A
4' .-. . .- -- 0110113 on Sac-nos 2 m
' Paoron‘rrormr. Emma-non
. theory of the Menting opinion
' 3..- ‘t’ ._ ts" test] . . . appears to be that

 

.. dates in
g. ‘mrtion to its members . . . The Equal
‘ ‘,’_. . tion Clause does not require propor-
a. , . representation as an imperative of po-

' g. organication."—U.8. Supreme Court,
:f -."Bolden (1980)

' 3' 3 . - fact that members of a racial or lan-
' i. u oority group have not been elected

:mnnbers equal to the group's proportion

" the population . . . would be highly rele-

- [under the proposed amendment.1"—

4- w Report 97-227 (Voting Rights Act)

‘jmnder the new test] any voting law or

. . in the country which produces
’- :fiction results that fall to mirror the popu-

*‘Tfiflm‘s make-up in a parucular community

u _. ~ ~ be vulnerable to legal

" Feballenge...ifcarriedtoits logical con-

n'r anion. proportional representation or ~

-'-_'quotas would be the end result."—U.8. At-

}; ? tin-hey General William French Smith

yeti-(fro overrule the Mobile decision by stat-

. on would be an extremely dangerous course

in! action under our form of govemment."—

' tamer US. Attorney General Griffin Bell

,_ “9A very real prospect is that this amend-

- “v -- —-t.,could..well lead us to the use of quotas

’intheelectoralprocess...Wearedeeply

concerned that this language will be con-

,J?'atmed to require governmental 'units to

' resent compelling instillation for any

:‘3’ . ...- system which does not lead to pro- ‘

‘ portionsi representation.”—Asst. Attorney

“General (Civil Rights) William Bradford
.3 ,Reynolds.

-" ,. ‘fBlacks comprise one-third of South Caro-

.1 lian's population and they deserve one«third

"of its representation."—-Rev. Jane Jackson.

Columbia State. October 25. 1981

~. 2- “The amendment must. invariably

. ‘Operate . . ._ to create racially defined wards
=,throughout much of the nation and to

‘ écosnpel the worst tendencies toward race

'. » . ' :rallegiances and divisiosm.”—Prof. Wil-

’ , Jan mummies“ School oi ..

‘ I

'-'~ ‘. ff'l'he'logical Cer'niinal‘polnt of those chal— ’
lenses [to Mobile] is that election districts
,‘ihust be drawn to give proportional repre-

~'_' ; mutation to minorities."—Wuhington Post.
- Anti! 28. 1980 . ' ‘ " - -

 

    
  
     
   
    
 
 
  
   
 
   
  

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3 41: seems to- me that the intent "or the"

ff amendment is to ensure that blacks or mem-

-‘ bars of other minority mare ensured .
. . proportional representation. If. for exam~
7 pie; blacks are 20 percent of the population

"_ of a State. Hispanics in per-ecu? and Indians 1
,Jt least 20 percent‘of the-1

Hispanic and 2 percent

- 2‘ m"_—Prof_Joseph Bkhon. Yale Law

I i' m. . . thintended to reverse.
i gnmmm‘smmn Mobile...

‘ Wamhoriseshdaflcourtato

— then-.rlawst to‘

 

 

v_e government does not ban!) proportions;
_ _ 1..“represeutati0xaV—Dn—I-rwuterw—Bermr
American Enterprise Institute .

‘ probability of being elected in proportion to
this population in South Mina. we will

. Gibson. President. South Carolina NAACP 5

' -‘."~ - “Only those who live in a dream world can

.fail to perceive the basicthrun andpurpoae-

CONGRESSIONAL RECORD _— SENATE

and inevitable result of the new section 2: it
is to establish a pattern of proportional rep-
resentation. now based upon race-perhaps
at a later moment in time upon gender or
religion or nationality."—Prof. Henry Abra-
ham. University of Virginia

“I may state unequivocally for the

portional representation . . .
is a big difference between proportional rep-
resentation and representation in the popu-
lation in proportion to [minority] populm
tion."—Beniamin Hooks. Executive Direc-
tor, NAACP , , ‘

"What the courts are going to have to do
under the new test is to look at the propor-
tion of minority voters in a given locality‘
and look at the proportion of minority rep-
resentatives. Than is where they will begin
their inquiry and that is very likely where
they will end their inquiry. We will have
ethnic or racial proportionallty."—Prof.
Donald Horowitz; Duke University Law
School

“It would be difficult to imagine a politi-
cal entity containing a significant minority
population that was not represented propon
tionately that, would not be in violation of
the new section."—Prof. Edward Erler. Na-
tional Humanities Center

“(The results test would require] dividing ,
the community into the various rams and
ethnic groups the law happens to cover and
trying to provide each with a representa-
tive."—Wall Street Journal. January ll.
1982 .

“Equal amass does not mean equal re-
sults . . . [Under the amendment) propor-
tionate results have become the test of dis-
criminationf—Dr. John Bunsel. Hoover In
stitution (Stanford University)

“The very language of the amendment
proposed for Section I imports proportional
representation into the Act where it did not
exist before.”‘Prof. Barry Gross. City Col-
lege of New York . » '

“By making sheer numerical outcome
‘highly relevant' as to the legality of a on»:
cedure. the House bill moves to replace the
outcome of the voting as the final arbiter by» .
another standard—proportionality; .This is._
not consistent with democracy."—Prof. Mi-
chael Icvin..Cit¥ College of New York; . . '

“The Alabama legislature Lb! indistflctg .
mlproposalliigoingonrecordsayingin
1982 it still does not feel 25 percent of the
population of this State should occupy 28
percent of the responsibilities and obliga-
tions of this legislaturs."—-Alabams Rep. ‘
Thames Reed. Washington Post. June 9,

“The proof (of discriminationunderthe ‘
amended section 2} is the number of people
who get elected."—U.8. Rep. Robert Garcia
(New York) . - . ~ ~ .1: . ;

o' .
o

' . . mu
My conclusion is that p’
representation is the inevi

of the proposed changein‘
notwi .the-'_ ' _ ’erfleada
the inqmry to whether‘ths adoption oi-.
sucha systemkwould

pox-tional ‘}
ble result

Proportional ”representation-u is. con-2.
teary to? our-political ‘ on_ and“
ought not be swepted as va‘general
part of our system of Government at.—
any level.l 1' Professor Berna. for ex-
ample, indicated that the framers con- .

address and rejected any system of
representation ; bued on interest.
groups. He testified; »' ,.

 

a. monstrous Won :4; Myra-say

tion a; '.

. be advisable. \
.. policy. On this: points-the testimony
was virtually unanimous in conclusion: '-

'.

$6511

Representative government does not
imply proportional representation. or any
version of it that is likely to enhance bloc
voting by discrete groups The framers of
the Constitution referred to such groups as
“factions." and they did their best to mini-
mize their influence". . .

Whereas the anti-federalism called for
small districts and therefore. many Repre
sentatives. the framers caUed for (and got)
larger districts and fewer Representatives.
They did so as a means of encompassing
within each district “a greater variety of
parties and interests." thus freeing the
elected Representatives from an excessive
dependence on the unrefined and narrow
views that are likely to be expressed by par-
ticular groups of their constituents.m

The testimony of Professor Erler'
sounded the same theme:

Nothing could be more alien to the Ameri-
can political tradition than the idea of pro-
portional representation. Proportional rep-
resentation makes it impossible for the rep-
resentative proce- to find a common
ground that transcends factionalized inter-
ests. Every modern government based on
the proportional system is highly fragment-
ed and unstable. The genius of the Ameri-
can system is that it requires factions and
interests to take an enlarged view of their
own welfare. to see. as it were. their own in-

must represent not only interests that elect
lum.butthosewbovoteagainsthimaswell. _.
That is to say, he must represent the .‘
common interest ratherw'than any particular
or narrow interest: This is the genius of a
diverse country whose very electoral institu-
tiom—particularly the political party struc-
ture—militate against the idea of propor-
tional representation. Proportional repre~
sentstion brings narrow. particular-iced in-
terests to the fore and undermines the ne-
ceasity of compromise in the interest of the
common good."l

'. I adopt thwervieys and believe that '. . .-.. ..
proportional representation ought to ’ _ .' - '
be. rejectedi an». undesirable public ' ' w, ‘ *
policy totallymrt from the constitu-- - w
tional difficulties that it raises. and
the racial consciousness that it fosters. - .
Since it has concluded that the pro- . :
posedchangeinsectionzwillinevita- ‘
biy lead to the proportional represen.
tation and that the disclairner lan- .
mwmpotpreventthisresmtlne- ‘ '1 r
cesarily and firmly conclude that the ' =', .
Senate amendment tosection 2 should -‘
be rejected by thisbody.- _ ._ 1'
7“” i . . ”has: i-..
In addition tothe serious questions,
inherent in adopting any-legislation-..
”WW ‘3 am “m” "‘
l5 ‘ "“3113: D0 .t » Emmanuel?» ’
_tlon.' it must be taken..into. account; In-
that .the particula; group immediately; 1'.
involved‘ls- deiined‘_solely *on. racial
grounds; I believe special caution is ap- -
propriate when the'enactment. of] any
racelbaselfchOn is contemplate
ed and rigorous analysis of potential i ‘
undersirable social consequences must - ' ' '“i

    

  
 
 
 
  
 

The first problem encountered isfi

. 'push M for ‘ new pun-4),. w. p. sidered the very question which I have simply one of: definition Legislation

which tends to establish representa-‘ . : , .,
tion based on racial group necessarily'~ - -;- 7* ;.
posesthe question of how persons y .4

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, ___ racial characteristics;

ful assumptions which are necessary v-

S 6512

shall be assigned to or excluded from
that group for political purposes.
Recent history in this and other na-
tions suggests that the resolution of
such a question can be demeaning and
ultimately dehumanizing for those in-
volved. All too often the task of racial
classification in and of itself has re-
sulted in social turmoil. At a m
mum. the issue of classification would

' heighten race consciousness and con--

tribute to race polarization. As profes-
sor Van Alstyne put it. the proposed
change in section 2 win invitably
“compel the worst tendencies toward.
race-based allegiances and divi-
sions." l" This predicted result is in
sharp conflict with the admonitious of
the elder Justic Harlan who wrote in
Plessy'

" ‘The‘re‘is no caste here. Our Constitution is
colorblind. and neither knows nor talents
classes among citizens. . . . The law regards
manumsn.andtakesnoaccountofhis
surroundings or of his color when his civil
rights are guaranteed by the supreme law of
the land are involved. m
More recently Justice Stevens called
the very attempt to define qualifying
[Blepugnant to our constitutional ideals.
.If theNatiouloovernmembtomahe
a serious effort to derine racial class by
criteria that can be administered objective-
ly. it must study precedents such as the first
regulation to the Reichs Citizenship Law of
November ll. 1935*“

Thus. I find‘that the race-based as

Signment 0f citizens to political groups

is a potentially disruptive task which
appears to be contrary to the Natim’a

most enlightened concepts of individu- .

al dignity and civil rights.
The second problem involves doubt-

tosupport a racebased system of rep!

‘Fresema'tion; The acceptance of a racial

~—~-—gronp- as a political unit impliem W“,

-A—_"

Zia-mu

one thing. that race isthe predomi-
nant determinant. of political prefera
eme. Yet. there is considerable evi-
dence that black political figures can
win substantial support from white
voters, and similarly. that white candi-
datm can win the votes of black citi—
zens. Attorney General Smith de-
scribed the evidence. He referred to

Winn that blacks will only
vote‘fbr black candidates and whites

m- manly for white candidates andsaid:

 
   

 

That.0f oourse.iauottrue-0noof.tha

bestcxamplesofthat isthe city of LosAn-
“f; otbmnsewan

 

timonyr
I question whether. a black can be fairly
represented only by a black and not. for ex-
ample. by a Peter Rodino or that a white
can be fairly represented only by a white an
not. for example Edward Brooke. '“
_ In otherwords, thereis no- evidence
that racialbioc votmg is inevitable and
reason to doubt that fair repredenm-

CONGRESSIONAL RECORD — SENATE

tion which assumes the contrary may
iweif have the detrimental conse-
quence of establishing racial polarity
in voting where none existed, or was
merely episodic. and of establishing
race as an accepted factor in the deci~
sionmaking of elected officials.

Finally. any assumption that a race
based system will enhance the political
influence of minorities is Open to con-
siderable debate. Professor Erie: testi-
fied that it is not always clear that the
interests of racial minorities will be.
best served by a proportional system:

It may only allow the racial minority to
become isolated. The interests of minoritia'
arebatservedwhen narrowracial issues
are subsumed within a larger political con-
text where race does not define political in-:

teresia. The overwhelming purpose of the. .

Voting Rights Act was to create these condi~
tions. and probably no finer example of 16K?-
islation serving the common. interest can be
found. But transforming the Voting Rights
Act into a vehicle of proportional represen-
tation based upon race will undermine the
ground of the common good upon which it
rests. Such a transformation will go far to-
wanh precluding the possibility of ever cre-
ating a common interest or common ground

nsideb

Promssor McManus recalled an in-
stance where politically articulate
blacks argued strongly against propor-
tional representation: ' -

One faction of blacks. led by several state
representatives. the three black Houston
City Council members. argued for spreading
influence among three commissioners

on
togeth er in one precinct and

elect a bhchto tosit at the table and watch‘
the paper-ally up md down " he said Wash-v
ington arguedthat packingan'the blacls in

one district wm “not in the best lanterns:
interests of the community. "I“ -

The city attorney for Rome. Ga,
Mr. Brinsomsimilarly observed; _ ‘

3, our, in preceived as uniform
proportional representation aitm
a group’ a participation in the political-m proc-

’ mes. in reality it may well frustrate
the camp's potentially ul efforts at

influenm on. the poliflcal system

A third problem relates to the per:
petustion- of segregated residential-
patterns. Since our electoral system is
established within geographic param-
eters, the prescription of racebased
proportional representation means
that minority- group members» will in-~

directly be encouraged to reside in the -_
same areas in order to remain in the

June .9, 1.982

premium would be put on segregated
neighborhoods. Professor Berns used
the term “ghettoization” to dmcribe
this process. “If we are going to
ghetto-ize, which in a sense is what we
are doing, with respect to some groups.
why not do it for all groups?" I“ Pro-
fessor McManus emphasized in her
testimny that administrative practices
in the context of section 5 seemed to
encourage Such segregation: ~

A premium ls piston idem racially
homogeneous precincts and nail: that as
thetest. anditseemstomethebmmline

racially
cinctaistheoptimalsolutimctheideal.
xhichlflndveryhardmawept-acifizen.

I reject the premise that. proportion-
al representation system in fact en-
hance minority influence—as opposed
to minority representation Even. how
ever. to the extent that this were a
valid premise. it would be valid only
with respect to highly segregated mi-
nority groups. Indeed. proportional
representation systems would place a
premium upon the maintenance of
such segregation. Porto the extent- ~
thata minority group succeeded in in-
tegrating itsefl on a geographical
basis, it would concomitantly lose the
benefits of a system. of voting.
Such a system ould benefit minor.
ities only insofar as residential segre-
gation were maintained for such
groups. .

Thus. analysis suggests that the pro- '
posed change in section 3 involves a
distasteful question of racial clasifica-
tion, involves several doubtful assump-

- tions about the relationship between
_,.race andpolitical behavior and may.
feucoura’gcpatter'usolsegren'mthat '
are contrary to prudent publh: polky~ -
-~Theee likely undedrable- anal conse-é' A

oneness argue strongly Vagina: the
propom change in section a .

Inotewithlntemt thermrlrsin.
the New York Times‘" recently by
my distinguished colleen)! from
Maryland. Mr. Mamas. in which he
observes that the common interest on

' the part of proponents of the intent
While the proposed amendment to section '
”mm?
" amerith an

standardisthatweallwanttocreatea

“homose WM; Party”;
motto my friendfrfinr’

 

gthissideoltheisue; ”“. “ ‘ “3‘:

Tne'naw in the argument of a?“
penis: of‘the‘ results test k' Eng:

3,35“:

plies that the decisions of elected 0115-: info-es any arguable bloc voting é‘yndromgaaf confuse thecoweptof mm renter
- -eialsa1epredominantlydetermined_by I!!! We!!! whom! member: lronzexerus sentation with.
emmssmmmmmmmmmm.
V :5 individualsorliispfleindivkhmlsor‘

Aleutian individuals on a city council

lemmas?
While WWW to be meow,“
WWWd W

or county commission or school board.

.theytotallyfailtoreccmminmy

view. that this may be entirely incon-
sistent with the idea of

, maximizing-
blaclr or Hispanic or-Alentian mm.

ence enthuse representative bodies.
The proportional W

tion defends on racial identity. legish- race-based political group A political prennseonthe part of my colleagues

 

 

  

‘3“ 3i.-

.ynr

 

.June 9, 1982
g; *‘i "on the other side of this issue implies
.eof course. the creation of district or
» ;" éward systems of government through-

xii-out the country in place of at-large
‘54. systems. as wellas other basic changes

 

 
 
  
   
   
  
  
 
 
  

qtructure. In a community with a 20-
.- percent minority population. and 10
7,. city council seats, this. it is presumed,
c.‘ will be far more likely to insure 2 mi-
; nority rcpresentatives than would an
at-large structure.
““That may well be true, although I.
am far more reluctant than results
proponents to assume that minorities
will inevitably elect minorities to rep-
“ resent their political interests. I reject
the idea that only blacks can repre-
sent blacks or that only whites can
represent whites. In any event, the
.. logical outcome of any ward or district
.- system designed to insure proportion—
”' ate racial representation for minorities
is that such minorities will. in effect.
be clustered into what amount to po-
’ iitical ghettoes. We will have two dis-
». ‘ tricts in this community with heavy
. ‘_ concentrations of minority voters. and
may well elect two minority individ-
uals to the representative body.
0n the other hand. unlike an at-
large system in which all lo council-
men would have to be responsive to a
large degree to .minority interestS.
under the system designed to promote
a proportional representation. there
' would be 8 councilmen who would not
' have to pay one iota of attention to
minority interests. Potentially success-
ful efforts at coalition building across
racial lines would likely be blunted as
racial lines were reinforced and em-
. gr phasized by the proportional represena
v’ '~v-;tation_ system. The requirement of .
what. in effect. amounted to a quota
.. system or representation would tend
‘ . "strongly‘to
nor-ities by departmentalizing the elec-
torate into black districts and white
districts and Hispanic districts and
‘Aleutian districts. Minority members
" .. might well have more members of ;
' their race or ethnic group sitting on
, . city council. but their opportunities
; for exercising influence on the politi-
‘ cal system outside their districts might ,
IToo‘k”'at the House of'RepresentaoT-f“
~ ~tlves..for example. and note that there »
is' an..18-Member Black Caucus. I did‘,
just}, bit of research on this matter
and noted that. on the average.

tion in excess of 80 percent. Now. if
'were‘a Membervoi the caucus. I might
-welLbe delighted with this state of air
.‘fairzi‘I’Wwouitlove to
. that was nearly totally homogenous in ,
' this respect. 0n the other hand. I
question seriously whether minority
influence as opposed to minority rep-
resentation is maximized by this state
' of affairs. Might not, for example. the
eminority‘ community. in Detroit be
», better represented in Washington or
Lansing if there were three minority
districts of 30 percent each rather.

bolate and stigmatize mi-.-

haveaaiistrict~ shipin mam
terests

CONGRESSIONAL RECORD — SENATE

than a single 90<percent minority dis-
trict? Might they not be better repre-
sented even if they had fewer repre-
sentatives who were black or Hispanic
or Aleutian?

Senator Marinas is absolutely
wrong, in‘ my opinion. in his sugges-
tion that opponents of the results test
oppose it because of their interest in a
“homogenous” Republican Party.
While my own primary interest in this
area has nothing to do with partisan-
ship one way or the other—and is pri-
marily related to constitutional con-
cems—I would must that if a homo-
genous Republican Party was my ob-
jective. I would be delighted with the
results test. I am. however. not inter-
ested in this. .

I would be delighted if that were my
interest with the opportunity to have
tidy, little districts. in which all the
minorities were concentrated. I would
be delighted if I was interested in a
homogenous party to have tidy. little
districts—but many more of them—in
which nonminorities were concentrat-
ed. I would be delighted. if that were
my interest. to concede to minorities z
or 1! number of seats and be able to-
focus the attentiom of my party solely
upon the rest of the seats. I would be
delighted that I would not have to
start by calculations in each distict
with consideration of what must be
done to maximize submit. or minimize
opposition. from the minority commu-
nity. .

In other words. if one's interest were
a homogenous Republican Party, I can
think of no better way to achieve that
thanbyremovingwhatistodayapre-
dominantly Demoaatic voting group
outside'the boundaries of 80 to 90 per.
cent .of the dish-lg: in the country and»
conceding them a measure of prODOr-'
tional represenunom’l would M’de‘“.
lighted. if that were my interest, with
the ruleof the Justice Department de-
veloped in recent years that a district

one» “likely to eled a minority repre--
sentative." I would be delighted not to
have to start each and every congreo
aional or State legislative or city coun-

c'ause' of thd'psesence of ‘a’ minority
group dispro attracted to
mypartisanowosltio ..-: -.~ . .
Howeverrnoneot is my interest

. nor." as iatulhnw. the interest of
anyonerelsr r the. Senator.
fromMaryiandonthisiasuerimply‘

do not accept the premise“ the Sonar. L.
or that‘of the civil rights leader-w
when narrow racial concerns are given . » »
. nent. a political subdivision which was
proCess. Ibelieve insteadthatitisin.

tor.

, of W
predominant rfoem» in the electoral

the best interests of minorities—all mi- »
noritios—that racial and ethnic con-
cernsbesubsmnedwithinafariarger
political context in which race does
not definepolithl‘ interests. in which
the two are not Wt. . - —

posed change. in section 2,.would apply;

. “an"

. ment. and which made no changes in 5 ‘~

S 6513

How could the idea of racially identi-
fiable wards or districts ever be looked .
upon as a civil rights objective? Has
the civil rights movement evolved so
greatly over the past decade that all ‘
hopes and ambitions of ever achieving
a colorblind society have been discard-
ed? Does anyone hold the slightest
belief that results or effects analysis
will do anything other than intensify
color consciousness?

How could the idea of a 10-year ex‘:
tension of the Voting. Rights Act.
adopted by the subcommittee and
which I continue to suppon. ever be -,
viewed as anything other than the 7
highest affirmation of civil rights? It. '
was considered such only 1 year ago. It
was only a year ago that Vernon
Jordan of the Urban League said of
the act that. “if it ain't broke don't fix.
it." It was only a year ago that Benja-
min Hooks of the NAACP testified in.
the House- ’

We support the extension of the Voting
Rights Act as it is now written. The Voting
Rights Act is the single most effective. legit:
lation drafted in the last two decades. I have
not seen any changes that were anything
but changes for changes sake. It would be
best to extend it in its present form)“ ' '

I understand that political positions“
change and evolve over time. but. I.
simply do nomgt- as credible that-
the position ously endorsed by
the civil rights community less than a
year ago now reflects an-"anti—clviL,
rights“ position. That. is not the intent -
of anyone that I know- who oppom
the House measure. ~

”Vansracrorsnmons: _-l >' Y
Assistant Attorney General Remi‘
oldshemphasiud _ in ,his testimony; ' ‘
before the subcommittee that the mgr—7+-

 

nationwide..,would. apply to existing
laws and would be a permanent provlsf’ ”‘7'?"
sion of the act. These‘ observations co”. ‘
gently establish the parameters for new. . 3
ceasing the practical impact of the pro-.5 '
posed, crime in section 2.1?! ..'.-’.,iii
Every political subdivision in-- that
United States would be liable to Mme ,
its electoral practices and procedures - -
evaluated by- the proposed results test:
of sectionfi-jkisimportant to emptiness;
size at the -that~for'Wo£E::-*
section 3; the term “political subdi ~'
_ encompasses tail is _ ..

n-‘nflzmlr.

 

   
  
     
 

subieot mas aura». as «an; ;
subsequentlypdoptedflm in? who?

not in violation of section 2" on the'efifi “—1-
fective date of the proposed amend-

its electoral system. could at some sub-!
sequent date find itself in violation of" _
section 2 because of new'ioeat canal-3‘72 . .. -‘~;:'
tions whichmay not ho’v'rI-bfconm”

n-u—m s

 

   
 
   
 
 
  
     
  
   
  
  
 
   
 
   
  
  
  
    
 
    
  
   
  
  
   
  
  
   
     
    
  
  
  
 
  
  
   
   
 
  
   
   
  
  
  
   
  
  
   
   
 
  
 
    

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S 6514

plated and which may be beyond the
effective control of the subdivision.'"

Within these general and far-reach-
ing parameters.”7 it appears that any
political subdivision which has a sig~
nificant racial or language minority
population and which has not
achieved proportional representation
by race or language group would be in
Jeopardy of a section 2 violation under
the proposed results test. If any one or

' more of a number of additional “obiec~
tive. factors of discrimination" "' were
present. a violation is likely and court-
ordered restructuring of the ehctoral
SYStem almost certain to follow.

One witness' remarks are eloquent in
capturing a sense of the potential
breadth of the amendments to section
2: It is no overstatement to say that

_. _, the effect of the amendment is revolu-

tionary. and will place in doubt the va-
lidity of political bodies and the elec-
tion codes of many States in all parts
of the Union . . . The amendment to
section 2 will likely have these conse-
quences: First. it will preclude any
meaningful annexation by municipal-
government consolidations.
county consolidations. or other similar
governmental reorganizations in areas
having a minority population. Second.
it will outlaw at-large voting in any

area where any racial. color. or lan-

guage minority is found. Third, it will
place in doubt State laws governing
qualifications and educational require-
ments for public office. Fourth. it will

" dramatically affect State laws estab-

lishing congressional districts. State
legislative districts, and local govern-
ing body apportionment of districting
schemes. And fifth. it will place in
doubt provisions of many election

; codes throughout the United Statearz :7

The probable nature of a section 2

order ls'iifustratedby the actionof the "
" district'court in the Mobile case.“'At

the time the action was brought, the
city of Mobile. Ala. had a- city commis-
sion form of government which had
been established in 1911. Three Com-
missioners elected at large exercised
legislative. executive. and administra-
tive power in the city. One of the com-
missioners was designated mayor. al-
though no particular duties were spec-

mmmm-d mamma-
' court disestablished the city
sionandanew famofmunicipatgow-

comm
ernment~warr subwtnted consisting of

_ amayoranda nine-membercityicoum .nia.

-uwellasthetactthatclear,nmraeiar
-.instification- assisted for this yet-large,

system wait considered largely- irrele-
. vsnt by the lower court. Thua virtual-
ly none of the original governmental
system remained after by
the. district court. The conflict be»
tween the district court’s Mobile deci-
sion and fundamental notions of
democratic selfgovernment k obvious.
Particularly noteworthy is the district

' ebun's finding that blacks registered

'Missouri. New Mexico.

CONGRESSIONAL RECORD -- SENATE

and voted in the city without hin-
drance. Notwithstanding this finding.
however. the Federal court disestab-
lished the governmental system
chosen by the citizens of Mobile.
thereby substituting its own judgment
for that of the people.

The purpose of this section is to ex-
plore the far-reaching implications of
overturning the Mobile decision. Re-
search conducted by the subcommittee
suggests that in a large' number of
States there exists some combination
of a lack of proportional representa-
tion in the State legislature or other
governmental bodies and at least one
additional "objective factor of discrim-
ination" which might well trigger.
under the results test. Federal court.
ordered restructuring of those elector-
al systems where the‘ critical combina-
tions occurs.

There appears to be a lack of pro-
portional representation in one or
both houses of the State legislatures
in the following States with significant
minority populationsfl“ Alabama,
Alaska. Arizona. Arkansas. California.
Colorado. Connecticut, Delaware,
Florida. Georgia. Kansas. Kentucky.
Illinois. Indiana. Louisiana. Maryland.
Massachusetts. Mississippi. Missouri.
New Jersey. New Mexico. New York,

North Carolina. Oklahoma. Pennsylvag; '

nia. Rhode Island, South Carolina.
South Dakota. Tennessee. Texas.
Utah. and Virginia; ,

In addition. there appear to be addi-
tional “objective factors of discrimina-
tion” present in virtually every one of
these States. For example. according
to the 0.8. Commission on Civil
Rights. every State listed has some
definite history of discrimination)“
This often has been exemplified In the '
existence. . o! segregated. or,_a‘.‘dual’_'
school systems!“ In additiomwthe.
Council of State Governments has re- '
ported that Alaska. Arizona. Arkansas.
Colorado. Delaware. Florida. Georgia.
Illinois. Indiana. Kentucky. Louisiana
Maryland. New Jersey. New Mexico.
New York. North Carolina. Oklahoma.
Pennsylvania, Rhode Island South
Carolina, South Dakota, Tennessee.
and Virginia provide for the cancella-
tion of registration. for failure to. to
a tt’ipm “objective factor of‘W‘
us on." Z: '

The councfl h also reported that
Alabama. Alaska.l Arianna, Califor

Colorado. Indiana. m

monthéfo‘ni elections. another typical
‘fobiccthrew factor-.4 01:17,. discs-1min»-
than“ anther. according to the
come“ such States as Alaska. Arkan-

sas; Calflomia. Colorado. Delaware. '

Florida. Illinois. Indiana. Kentucky,
Oklahoma.
Pennsylvania. Tennessee. Texas. and

Utah have established staggercdeleo- '

total terms for members of the State
senate. still another f‘objective‘ factor-
ofdiscrimination."1.“i " 7 . '

. Savannah, Ga; and Waterbmy.

June .9, 1.982

From the foregoing. the subcomittee
on the Constitution concluded that
there is a distinct possibility of court-
ordered restructuring with regard to
the system of electing‘members'to at
least 32 State legislatures if the results
test is adopted for section 2.1" (See at~
tachment B.) ‘

The subcommittee emphasized that
the three or four “objective factors of
discrimination” discussed above are by '
no means exhaustive of the possibili-
ties. Additional factors which might
serve as a basis for court-ordered
changes of systems. for electing. mem~
bers of State legislatures which have
not achieved proportional representa»
tion include: Disparity in literacy rates
by race. evidence of racial bloc voting.
a history of English-only ballots. dis--
parity in distribution of services by
race. numbered electoral posts. prohi-
bitions on single-shot voting. majority
vote requirements. significant candi-
date cost requirements. special re
quirements for independent or third
party candidates. off-year elections,
and the like. . '

AUMDHHBH a—smrs wane mm REPRE-
.‘sammnmoutonommmormsrm
“ LEGBWURI AND meson or "oeiecnvr
or Winn"

 

 

 

 

 

 

 

 

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add-Mon. the guarantee»...

V In
lysed factual circumstances in such'
communities as Baltimore. Md; Bir“

vs; Pittsburgh. Pusan Diego.

Conn:

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as“.

.390

fin

 

" #1982

, uded that each of these com-
' faces a significant possibility
. £7: .. required to restructure their
-’ ’i ' of municipal government as a
“I of the amendments to section 2.
are discussed in greater detail in
bcommittee report at pages 154-

1 my additional views.
mesa examples are but a few illus-
of literally thousands of elec-
"5'. systems across the country which
I“ undergo massive judicial restruc-

 

should the proposed results test
wtedm The information present-
' dealt with state legislatures and
. .-.. : ties. but other political sub-
..; such as school boards and
r -.a dktrlctswouldbesubiecttothe
' judicial scruntiny should the
standard be adopted.
~ well aware that proponents of
results test consider this discus-
of the impact of section 2 to exag-
~ the situation considerably. In
the subcommittee would

   
  
  
  
     

First. the burden of proof in this
' _ rests with those who would seek
, r the law. not those who would
end it. Second, I do not believe that
‘ponenis of the results test have
..- convincing in explaining how the
;, would work in a manner: other
than that described in this section. In
if m where in the text of ER. 3112
-'V elsewhere is there anything which
udes a section 2 violation in the
- tances described in States and
municipalities in this section? Indeed.
g 4- e results test would seem to demand
violation in these circumstances.
i Finally, I am utterly confounded as
3 .. what kind of evidence could be sub-
.3 .‘ .. tted to a court by a defendant juris-
_ "- on in order to overcome the lack
-‘ .’._ - proportional representation. What
dence would rebut evidence of lack

efiproportional representation and the .

.‘exlstence of an additional “objective?
7 factor of discrimination? I have yet to
(hear a convincing response. In Mobile.
. "for example; the absence of discrimi-
natory purpose on the part of the city.

‘ r as well as the existence of legitimate.
3 nondiscriminatory reasons behind
their challenged electoral structure,

  
 

3 any . '11

.u-vs

:' -, at-large system. was considered insuf-

«um i . jg overcome the lack of propor-

,‘tlonal’ representation. y.we
:have been “reassured” that such can
gems are not well founded because a
court' would consider the "totality of
Woes. As noted in section-
begs the basic question:

E whiff. the standard for evaluating'

    

2'

(fly? evidence. including the "totality
osmotic." under the results
What is the ultimate standard by

deuce is before it? Apart from the
standard of proportional representa-
tionlseeno such standard.-
v'“couyaornas" mm

Because it has been characterized by

some as a “Compromise." I would like
to add Some additional. specific rec
marks on the Dole committee amend-

? merit. In what seems to be the euphoi

5,“ rm; n.‘

the following general observa- ‘

which the com W whatever evi---

CONGRESSIONAL RECORD — SENATE

ria generated by the proposed compro-
mise. virtually insuring the swift en-
actment of this measure. I must reluc-
tantly state that I believe that the em-
peror has no clothes. The proposed
compromise is not a compromise at all;
its impact is not likely to be one whit
different than the unamended House
measure.“'

As much as it is tempting to embrace
this language and claim a partial victo-
ry in my own efforts to overturn the
House legislation, I cannot in good
conscience do this. As Pyrrhus said
many centuries ago. “Another such
victory over the Romans and we are
undone." Those who have shared, in
any respect, my concerns about the
dangers of the new results test may
look appreciatively upon the political
"out" being afforded us by the present
compromise: I would hope. however.
that none would delude themselves
into believing that it represents any-
thing more substantial than that.

The proposed amendment to section
2 contains two provisions. The first
provision is identical to the present
House amendment to section 2 dis-
cussed in the accompanying subcom-
mittee report. It reads:

(a) No voting qualification or prerequisite
to voting or standard. practice. or procedure
,shall be imposed or applied by any State or
political subdivision in a manner which re—
sults in a denial or abridgement of the right
of any citizen of the United States to vote
on account of race or color. or in contraven-
tionoftheguaranteeasetforthinaection
«0(2). as provided in subsection (b).

For all of the reasons outlined in the
subcommittee report, I believe this
provision to be dangerously miscon-
oeived‘“

The question then is whether or not
the second provision—a new er
of proportional representation—would
mitigate any of these difficulties and
improve upon the House disclaimer

provision. It reads:

(b) A violation of subsection (a) is estab-
lishediLbasedonthetotalityofeircum-

theStateorpoliticalsubdivisionarenot
equally open to participation by member: of
a class of citizens protected by subsection
(a) in that its members have less oppommiv

tythanothermembenofthcelcctontem.
mommmmmt

elect remesentstives of their choice. The
extent to which members a protected
class have been elected to o in the State
or political subdivision is one “cireunh
stance" which may be considered. provided
that nothing in' this section established a'
right to have members of a protectodclan
elected in number- equalto their proportion
in the population.

This new disciahner. in my view. will
be little differentur ilreffect fronLthQ

purported disclaimer in the House

measure discussed in the subcommit.
tee report)" Both provisions fail to
overcome the clear. and inevitable
mandate for proportional representa-
tion established in subsection ('a):any

differences between the House and
Senate disclaimers provisiono are
largely cosmetic. . _ 1.

S 6515

I will focus very briefly on the dif-
ferences in language between these
provisions and then rest upon the
analysis in the subcommittee report as
an expression of my views.

The compromise disclaimer refers to
violations being established on the
basis of the "totality of circum-
stances." This. I gather. is supposed to
be helpful language. It is not. There is
little question that. under either a re-

sults or an intent test. a court would

look to the “totality of circum.

stances." The difference is that under

the intent standard. unlike under the
results standard. there is some -ulti-

matecore value agaillst which to

evaluate this “totality. " Under the
intent standard. the totality of evi-
dence is placed before the court which
must ultimately ask itself whether or
not such evidaioe raises an inference
of intent or purpose to discriminate.
Under the results standard. there is no
comparable and workable threshold
question for the court. As one witness
observed during subcommittee hear-

Under the results test. once you have ag.
mattedontthose factors: what do you
have1WhereareyoulYouknowitisthe
oldthingwedoinlawschool: youbalance
and you balance. but ultimately how do you
balance? What is the core value?“0

There is no core vhlue under the re-
sults test other than election results.
there is no core value that can lead
anywhere other than toward propor-
tional representation by race and
ethnic group. There is no ultimate or
threshold question that a court must
askundertheresultstestthatwill
leadmanyotherdirectiommshorhit
is not the scope of the evidence—“to-
tality of circumstances" or otherwise—
that is at man this debate. but
rather the standard of evidence. the
testorcrlteriabywhichsuchevldence
is assessed and evaluted. . «

In this regard. it is instructive to
recall the Supreme Court's summary
dismissal of the argument of the dis-
sent by Justice Marshall in City of
representa-

  

 

D 0010

The compromise provision also pur-
ports to establish an explicit prohibi-
tion upon subsection (a) giving rise to
any right to proportional representa-
tion. This is not quite the case. Most
pointedly. perhaps. there is nothing in
the provision that addresses the issue
of proportional representation as a
remedy.

There is little doubt that many pro-
ponents of the results test, in fact. are
adamantly determined not to preclude

-9. - the use-of proportional representation
' as a basis for fashioning remedies for
violations of section 2."?

More fundamentally. however. the
purported “disclaimer" in
the amended section 2 is illusory for
other reasons as a protection against
proportional representation. It states:

“'nothlnginthissectionestsblishess
_,. i? right to have members of a protected clam
", . ., -..-._...-..m. elected in numbers equal to their proportion
i

 

 

1“} ‘v lnthe population.
It is illusory because the precise
. ,; "right" involved in the new section 2 is
:s 1;! not to proportional representation per
se but to political processes that are
"equally open to participation by
' ' members of a class of citizens protect-
' ed by subsection (a).” The problem. in
- _,, short. is that this right is one that can
be intelligently defined only in terms
that partake largely of proportional
representation. This specific right—po-
litical processes "equally open to par-
ticipation"—ls one violated where
there is a lack of proportional repre.
sentation plus the existence of what
" have been referred to as "objective
factors of discrimination." 1“
Such “objective factors” purport to
explain or illuminate the failure of mi-
norities to “fully participate" in the
political process. '
. They are described. in greater detail
7? . 'in the subcommittee report)" but the
,-‘j. ~ ~»- “most significant of these factors is
"-‘j " -7”! clearly the‘atdarge electoral aystmn.
The at-large system is viewed by some
in the civilrights community as an
:2 “objective factor of "
i ' - because they believe that it serves as a
i .4 “barrier" to minority electoral partici-
pation. , ‘7‘ ‘- ._ ‘ ,

7‘ Under the results test. the absence
of proportional representation plus
the existence of one or more “objec-

tiyegactors of discrimination.” such
. arr" at-large' system of governmen
_ wouldconstitute a section 2 violation.
M; _,In atechnical sense. it would not be

wafffn'and' or itself that would con-
Wilhénoiaubn but rather the
lick of proportional. representation in
combination. with the so-called chico-
>rfebarrfgrfitominority participation.
.- " ngbévw largely- irrelevant that
:- ere- was'no"
behind the at-large system, for exam—
ple, or that there were legitimate. non-
discriminatory reasons for its eshb-
._‘_ lishment or maintenance...- ._ ' , .
' .A We :2 as. "mm:
rs.” can in v oua,

; . eludes. ("some history ofdbu‘lminaflm‘.
iii (”15.9%. maximum: in mutt-mean.-

 

 
 
   
   
 
 
   
   
   
 
  

  

  

 

 

 

tory motive "

CONGRESSIONAL RECORD — SENATE

districts?“ (3) some history of “dual” school
systems; “" (4) cancellation of resistration
for failure to vote: “- (5) residency require
ments for voters: "If (6) special requirements
for independent or third-party candidata;
"l ('1) off-year elections; “I. (8) substantial
candidate cost requirements: "I‘ (9) stag-
gered terms of office; I“ (10) high'wonomic
costs associated with registration; "n (11)
disparity in voter registration by race: 1"
(12) history of lack of proportional repre-
sentation; I“- (13) disparity in literacy rates
by race: I"- (14) evidence of racial bloc
voting; "'- (15) history of English-only bal-
lots; W (16) history of poll taxes: '9' (I?)
disparity in distribution of services by race:
W (13) numbered electoral posts; “" (19)
prohibitions on singleshot voting: “‘ and
(20) majority vote requirements. '-

Each of these factors. when they
exist within a governmental system
lacking proportional representation
may allegedly explain the lack of pro-
portional representation. In my view,
the results test leads inexorably to
proportional representation because it
is the absence of proportional repre-
sentation that triggers the search for
the “objective factors" of dimrimina.
tion in the first place. The theory of
the results test. again. is that such fac-
tors allegedly explain why such an ab-
sence of proportional representation
exists. Given the virtually unlimited
array of such “objective factors." it is
difficult to c any community.
with or without proportional represen-‘
tation, that would not be character-
ized by at least seVerai such factors.
Identifying an “objective factor of dis»
criminatlon" could easily amount to
little more than a mechanical and per~
functory process. In I“ practice. the re-
sults test. with or without the require-
ment that “objective factors of disp
elimination" be identified. is effective-
ly indistinguishable from a pure test
of proportional representation. w ~

The root problem with the amended
section“: then" that with" an inad-

equately strong—disdalmer sl

I mom
the present disclaimer b irrelevant
and misleading; the root problem is
with the results test itself. No. dis-
claimer, however strong—and the im-
mediate disclaimer is not very strong.
in any event. because of its failure to
address proportional reprwentation as
a remedy—can overcome the inexora-
ble and inevitable thrust of s results

test. indeed ofany testfor uncovering -
“discrimination" other than an intent '
tat "I .. .

If the comept discrimination is
going to be divor 7 entirely from the.
concept or' wrongful motivation-.then
we areno longer referring to what has
traditionally been viewed as discrimi-
nation: we are referring then simply to
the notion of-disparate impact. Dispa~
rate impact can, ultimately. be defined

only in terms that'ars effectively in?

distinguishable from those of pro-
portional representation.-
impact is not the equivalent of dis-
crimination. . ~ _ .
The attempt in the “compromise” to
define the results test as one focused
upon political processes that are not
“equally open to participation" is fine

‘ ”June .9, 1.982

rhetoric, but has been identified by
the Supreme Court in City of Mobile
for what it is at heart. The Court ob-
served in response to a similar descrip-
tion of the results test by Justice Mar-
shall in dissent:

The dissenting opinion would discard
fixed principles [of law] in favor of a Judi-
cial inventiveness that would so far toward
making this Court a “super-mature." l"

In short. the concept of a process
“equally open to participation" brings
to the fore what is perhaps the major
defect of the results test. To the
extent that it leads anywhere other
than to pure proportional represents
tion—and I do not believe that it
does—the test provides absolutely no
intelligible guidance to wurts in deter-
mining whether or not a section 2 vio-
lation has been established or to com-
munities in determining ”whether or
not their electoral structures and polio
cies are in conformity with the law.

What is an “equally open" political
process? How can it be identified in
terms other than statistical or results-
oriented analysis? Under what circum-
stances is an “objective factor of dis-
crimination." such as an at-large
system. a barrier to such an “open"
process and when is it not? What

:would a totally “open" political proc-

ess look like? How would a community
effectively overcome evidence that
their elected representative bodies
lacked proportional representation?

In my view. these questions can only
be answered in terms either of straight
proportional representative analysis or
in terms that totally substitute'for the
rule of law an arbitrary meby-case
srutlee of indievédlllilal Judges. As Justic:

vens no his comm-log op -
ioninCity ofMobile: ,, -; V
The results standard __ pondemn

‘every adverse impactononeormorepoliti-

cal groups without spawning more‘dilution
litigation than the Judiciary can manageJ"

On the opening day of heel-lugs. I
raised several factual situations with
my colleagues on the committee: relat-
ing to-Boston. Mass: Cincinnati. Ohio:
and Baltimore. Md. I asked repeatedly
how. given the circumstances in these
communities. would a mayor or coun-

yet to hear an ansz er
offering the slightest hit of- guid-
ance"! Each of. these munities
lacks “proportional.“ representation.
each has erected a conned bar-rim- to
minority participationln. the form of
an at-large council system. and each
possesses additional "objective factors
of Wot do ftion" such as sane hlsto '
ry_ acto‘ school-Inflation.
There'flftliéix‘é’afida'bf other commu-
nities across the Nation in dmilar cir-
cumstancesaswell. , 7 -

I reiterate my question: How does a
community. and how does aeourt.
know what it right and wrmg under
the results standard? How do they
know enough to. be able mreomply
with,the.law‘l:,How.-do they know

 

 

.._ ....... *‘_w._;m ‘ .r. . i ,. ._-,

3*
i2 3:. June 9,1982 COD
W .21. which laws and procedures are valid.
1e {and under what circumstances. and
b. E which are invalid? How do we avoid
D- ,. having “discrimination" boil down
r- ,2 either to an absence of proportional

ii representation or. in the words of one
rd :witness, “I may not be able to define

-
.—
'Iifi'fiyg;

it. but I know it when I see it”? 1"

 

There are other objections to the

‘ Emposed section 2 “compromise," but
;s. ...,_ arediscussedthoroughlyatan
:3 Zearlier point of my statement. I would
if ' note. however. that in one important
e respect the provision is even more 0!)-
er *Jectionable than the House provision.
L- git reters expressly to the "right” at
it tracial and selected ethnic groups to
o -’ “elect representatives at their choice."
-- This is little more than a euphemistic
)- reterence to the idea 01 a right in such
~ t‘"" . . . -- to the establishment ot sate

,. and secure political ghettoes so that
;-_ they can be assured of some measure
‘ . at proportional representation. In this
_ regard. I note the recent statement of

 

 

have anopportunity to elem candidate
at their choice. White people see nothim
nong withhavingaoapercentwhitedh-
\ié‘mtrict. Why can't we have 69 pa'eent black

ultimately is what this so-
ed right to “elect candidates ot‘
one ’5 choice" amounts to—the right to
ve established racially homogenoua
districts to insure proportion represen-
Te tation through the election of specific
., -umbers of black. Iiispanic. Indian.
utian. and Asian-American ot-
':3- ~ holdera‘"
Perhaps most importantly. the pro-
. 1"...» 3‘. “commune” suffers from the
2 =wmatthe Houseprovisioninthat
j attempts statutorily to overturn the
3'; preme Court’s decision in City of
"g .. phile interpreting the 15th amend-
iii: ut. It is altogether as unconstitu-
g on mal, in my view. as the unamended

. ““1

, -
i
:w-Wmemmm~m . ,_ .

"my,

'1 -use language. “3 Under our system
* of, government the Congrem simply
cannot overturn a constitutional deci-
tion of the Supreme Court through a
_4 statute. The Court has held that
Mn *‘ f__ 15th amendment requires a dem-
m , . _.... - .otmtentionaiorpm-puetnt
. u .. "amnion. To the extent that the

, .' ...- Rights Act generally and seed,

  
    

:1? ~' .1 L2- aspecitieallyarepredieatedupoq
em. ,. l, ‘ amendmeand they mm
4; . ; , authoritywithinConsI-efltore-
~-—— * .3 ~ m - ~ its requiremenu~ and’W

« .... . steater._"restrictionsuponthe‘

E;
E
:3.
a
E?
W
3
'5

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53:: the Court, a least so long a the
. era! Government remains a govc
hunt nf delmted powers. '7

arm.” 2-.“ ”'7 - "w “

the proposed change in section 2 of
the Voting Rights Act would lead to
widespread court-ordered "proportion-
al representation." Put simply. propor-
tional representation refers to a plan
of government which adopts the racial
or ethnic group as the primary unit of
political representation and appor-
tions seats in electoral bodim accord-
ing to the comparative numerical
strength of these groupa‘" The con-
cept of proportional representation
has been experimented with—often ac-
companied by substantial social divi-
sion and t 'oil—in a handful of na-
tions aroun the world)“ There
seems to be. general agreement that
the framers of our Federal Govern-
ment rejected official recognition of
interest groups as a basis for represen-
tation and instead chose the individual
as the primary unit of government)”
I am deeply concerned with this issue
since the proposed change in section 2
could have the consequence of bring-
ing about a substantial change in the
fundamental organization of American
political society. .
1. smears m 230”“?!on

The analysis of this issue begins
with the language of. the proposed
change in section 2. Existing section 2
provides that: ‘

No voting qualification or prerequisitive
to voting. or standard. practice. or proce-
dure shall be imposed or applied by any
State or political subdivision to deny or
abridge the right of any citizen of the
United States to vote on amount of race or
color or in contravention of the guarantees
set forth in section 4(fx2).“'

The Senate amendment eliminates
the words “to deny or abridge” and sub-
stitutes the words “in manner which re
sults in a denial or abridgement of.” The

Baum committee report explains that:-

ER. 8112 will amendeseetion 2 of the act
to make clear that proof of disalminatory
purposeorintentisnotrequiredmcasel
brought under the provision)“

Under the current language, as con-
strued by the Supreme Court in the
Mobile case. a violation of section 2 re-
quires proof oi‘ discriminatory purpose
or intent. The Senate bill changes the
gravamen of the claim to proof of a

disparateelectoralresult'l'his ..
inthe very essence of them

of courts upOn

  

:anadequato remedy merely by declar-
ing the purposefully
action- void. since the essence of the;

motivated official
action— However? under the proposed—
change in section 2,- the right estab-
lishedistosparticularresultandso.
inevitably. much more will be required
to provide an adequacy remedy. The
obligations of Judges will require use
of their equity powers to structure
electoral systems to provide a result
that will be responsive to the new
right."' Otherwise. the new right
would be without an effective remedy.

I. nose-trons summon n no: ’
Perhaps the most important and dis-

m issue brought to light

the bearingswas the issueof whether

 

CONGRESSIONAL RECORD — SENATE

June 9,1982

a state of affairs which is logically and
legally unacceptable.

Thus launched in search of a remedy
involving results. it seems that courts
would have to solve the problem of
measuring that remedy by distribu.
tional concepts of equity which are in.
distinguishable from the concept of
proportionality. The numerical contri~
bution of the group to the age-elegible
voter group will almost certainly dic-
tate an entitlement to office in similar
proportion)" It is my opinion that if
the substantive nature of a section 2
claim is changed to proof of a particu.
lar electoral result. the principles of
equity will lead to widespread estab-
t1lishment of proportional representa-

on.

Virtually the same conclusion was
stated by humus witnesses who ap-

peared before the Subcommittee on

the Constitution. Attorney General
Smith told the subcommittee:

[Under the new test] any voting law or
procedure in the country which produces
election results that fail to mirror the popu-
lation's makeup in a particular community
would be vulnerable to legal challenge ‘ ‘ '
it carried to its logical conclusion. propor-
tional representation or quotas would be the
end result.‘“

Assistant Attorney General Reyna
olds testified:

A very real prospect is that this amend-
ment could well lead on to the use of quotes
in the electoral process ' ° ° we are deeply
concerned that this language will be con-
strued to require governmental units to
present compelling Justification for any
voting system which does not lead to pro-
portional representationl "

Professor Horowitz testified that
under the results test:
*Whatthecouriaaregohlgtohavewdois
to look at the proportion of minority voters
lnagivenloalityandlookatthepropor-
tion of minority representatives in a given
locality. That is where they will begin their
inquiry; that is very likely where they will
end their inquiry. and when they do that.
lwe will have ethnic or racial proportional-
ty ll

Professor Bishop has written the
subcommittee: -

it seems to me that the intent of the
amendment is to insure that blacks or mem-
beu of other minority mare insured}

W 'forwesm-

WW
pie. blacks are 20 percent of the population

ofamnhpmiulupercentandfndians
apercentthenatleastmiaercentofthe

mull: A- 1~-'..1. ".y.'v ' ." 5.4791-
Professor Abraham has stated?”
Only those who live in a dream

falltoperceivethebasiepurpoeeand -
and inevitable result of the new sectian 2. It
is to establisha patternot proportionate}
resentation. now based upon race—but who
btosay. sifl—perhapsatalatermomentin
time upon gender. or religion. or national—
ity. or even aged “

A similar conclusion—that the con-
cept of proportional representation of
race is the inevitable result of the

in section 2—was reached by I
large number of additional witnesses
and observers.“m ‘

1

x

; :3.