Legal Research on Voting Rights Act Amendments

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VOTING RIGHTS ACI' AMENDMENTS 
P .L 97-205 

forus on the subjectiYe iP.tPnt of the decisionmakns." 416 r. S. at--, 
his preferred thrPe-pa r~ standard for dPtnmining whethrr a chal­
knged voting practice Yiolates thP law includE's wheth Pr thP practicE' 
"was unsupportE'd by 1m~· nPutral justification and thus wa s either 
totally irrational or entirPly moti\'ated by a dPsi re to curtail thP polit­
ical strength of the minNity." !d. at--. 

CONCLUSIO:S 

In sum, I belie-,·e this ~'obj ective design" standard is t 11!' only theory 
[ hB.Ye SE'en which COhPront)y binds the apparently inconsistent thrPads 
of this new section 2 language. It accomplishes what thE' drafters of 
this language say they want to a<'.complish . and prennts c.onseque>nce.c: 
they say they wish to avoid . It is analogous to classic form s of leJlal 
enalysis in our jurispnH1e>nce. Finally. it is a logical general form ula­
tion of the precedents in the \'Oting rights area. 

[page 193] 

ADDITIONAL VIEWS OF 

tement of the intent of 
ever I would like to add 

a few furth er comments conce e angue..ge o t e su 1 u 
amendment which 1 offered and the Committee adopted a.s it relates 
to Section 2 of the Yoting Rights Act, and i.r1 particular, what I in­
tended that the su bstitut.e accomplish and why it wa.s needed. 

M.AINTAIN J NG THL IN'I'E'iRITT O:F THE RESULTS TEST 

In offering the substitute, I wa.-s guided by two key objectives. First, 
it wa.s imperative to mab it unequivocally clear that plaintiffs ma.y 

J' ' __....9a.se a Yiola.tion of Section 2 on a showing of discrimina-tory "results'\ 
,r r in which case proof of discriminatory intent or purpose would be 

!-;:;"~ 1 neither req~ired , nor releY~nt. I wa.s com-incoo of the _mB;ppropri~te.-

r- rights cla~"'l , a.s v.ere the majorit.Y of my colleagues on the Committee. 
·. lj' ness of an "mtent st.a.ndarcJ ' a.s the sole means of esta.blislung a votmg 

' s explained more fully ii1 the Corninittee Report, the basic problem 
v.ith the test is ths.t its focus is misplac.ed. If a voting practice or struc-
ure ope sy to exclude members of e minority group from a. 

fair o riunit.y to participat€ in the politirel process, the motives 
md the a.otions of officials v.hich took pla.ce decades before is of 

the most limited r~e-:a.nce. Further, it places an inordinate burden of 
proof on ~·intiffs, thus frustra.ti.ng vigorous enforcement efforts. It 
also cauSf" .divi~i ,.l!_IL.~use it ine,ita.bly involves charges that the 
decisions orOffiCla.ls were racially motiYated. In short, from both a 
policy and legal st3.ndpoint, exclusive reliance on the test is misguideil 
&.nd would prevent eradi<'ation of the racial discrimination which, un· 
fortunately, still exists in the American electoral process. 

ADDRLSE>I~G THE PROPORTIONAL EEPRE5E~TATION ISSUE: 

'While c.ominced of the ine.ppropria.t.eneffi of the "intent. standard", 
however, I wa.s also com·inced that in order for this legislation to 
garner the broad bipartisan support which it deserved, the codification 

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LEGISLATIVE HISTORY 
P.L. 97-205 

of the "results" test h.a.d to be accompanied by language which allevi­
ated fears that the standard could be interpreted as granting a right 
of proportional representation. During the hearings, this was a con­
cern expressed by many a.nd oppooition to the results test was based 
primarily on this fear. Yet, during the hearings a unanimous con-

~ •£ ...V"'\ [sensus was established, among both the opponents a.nd proponents of 
e., \\'f¥'(1 the results test, that the test for Section 2 claims should not be whether 

" members of a protected class have achieve<!.._proportiooa.l represent&- G 
~~ tion. It was generally agreed that the concept of certain identifiable ~ 

'\'t-t- '""' groups having a right to be elected in proportion to their voting po- ~ 
t.ential was repugn~nt to the democratic principles upon whicli olfu 
society is based. Citizens of all races a.re entitled to have a.n ~u 

V 
~ cha.nce or}ectin CAndidates of their choice, but if they a:re fa1rly 
"b afforded t.h opportunity, and lose, the law should offer no redress. 

. [~~ 1~] 

vJ' THE FORMULA FOJ! THE OO:MPRO:MISE 

Accomflishment of these two key objectives-ma.intaining the in­
tegrity o the results tast while at the same time alleviating fears about 
proportional representation-was achieved by dividing Seetion 2 into 
two now subsections. New subsection (a.) retained the "results'' lan­
guage of the House Bill , thus making clear that Congress rejected 
the "intent" standard as the sole means of esta.blishin a. violation . . . 
cificity, the legal standards t.o be a.pp under the "results" test in 
order to address the proportional representation issue. 

As ex·rlained in the C.QTIJ.mittee Report, the new subsection codifies \Jm { ~ 
the }ega standard articul-ated in W h.it.e v Regester, a sUindard which ] t:;,.tJ .:> ct 
was first applied by the Supreme Court in W hitcorn.b v Chavi-8, and (X...IV ,_.. 

which was subsequently applied in som~ Federal Courts of Appe.a,ls 
decisions. As expressed in the language of tfie subSe.ct10n, ffie standard 
is whether the political p~es are ~u.ally "open" in that m~mbers 
of a protected class have t.h~ sam c/PPortunity 8.S others W..,IJJ!;.IL~~~;.,._-----T-
in the pohtiC8l process and ~ edt · "' of their c · . In oth 
words, the focus of the !Of anda · on whether t 1 · ual access 
the political process, not on whether members of a. pa · c a tv 
group have achieved proportional elections results. Th o ~--
the subsection explici tly rejects, as did White. and its progeny, the 
notion that members of a protected class hHe a right to be electe-d in 
nu~bers equal to their proportion of the population. The extent t.o 
wh1ch membe.rs of a. protected class han been ele.cted under the c.ha.l­
Jenged practice or structure is just one factor , among the totality of 
circumstances to be considered, and is not dispositi\·e. • 

Thus, by relying on the plain langua~it.ute a.mendme t. 
as well as the precedent which the amendment is designed to mak 
applicable, I am confident that. the "results" test will not be construed 
to require proportional representation. Such a oonstruction would be 
patently inconsist-ent. with t.he expre..c:s prorisions of subsection (b). 
Further, the track record of caSes decided under the Whi.te standard 
irrefutably demonstrates that a right to proportional representation 
was never deemed to exiErt. under the standard , and, in fact. was oon­
i..stently disa.Yowed by the courts. 

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VOTING RIGHTS ACT AMENDMEJ\l'S 
P.L. 97- 205 

THE REVISED SECTIOK 2 DOES :KOT J~CLUDE AK ELEMEXT OF JXTE~T 

It should be n>empha.sized that the "results" test contained in the 
substitute amendment in no -way includes an element of discriminatory 
purpose. I am a ware that some han soug-ht to characterize the Whit e 
holding as including an ultimat<> pnrpose requirement or a so-called 
"objective design" elemenL The implication of this characterization is 
that because the substitute amendment codifies the Whit.(' standard, 
the amendment also includes some requirement of discriminatory pur­
pose. But in presenting my compromise before the Committee, I ex­
plicitly stated that "the supporters of this eompromiS<> belirYe that a 
voting practice or procedure whi ch is discriminatory in result. should 
not be allowed to stand. regardless of whether there exists a discrim1-
natory pu!:1p0Se"· Further~ as the Comm1ttee R<>port spells out.. in 
adopting the substitute amendment, the Committee has concluded that 
the White case made no findings a.nd required no proof as to the mot:i ­
vation or purpoSE' behind the challenged voting practice. 

[page 195] 

It should be noted that prior to the Committe€ markup on S. 1992, 
numerous draft amendments -were circulated to C-ommitte<' members 
which were said to achie\'e, in n .rious ways, some third, composite 
kind of standard, osten?ibly combinin both the "results .. anJ "intent" 

a 

showing of discriminatory results by a showing some nond JscnmJ­
natory purpose behind the 0hallenged voting practi ce or structure. 
Another suggestion was that the results test of White be Yiewe-d as 
requir ing plaintiffs to pron that the discriminatory result of the chal­
lenged votiJ:g practice was a reasonably forse.eable eonsequence of its 
design . H owenr, my colleagues and I who offe.re-d the substitute 
amendment remained convinced iliat Section 2 should only re.quire 
plaintiffs to establish diseriminatory "results'' and rejected the notion 
that any element of purpose should be incorporated into the standard. 

OTHER REY1£IO~S MADE BY THE SLBSTJTL:'I"E 

ThE-. substitute n>tainPd thf.\ new bail-out criteria containe.d in the 
bill passed by the House. but plac.('d a t-we-nty-fin year "time cap" 
On the pre<'JearanCE' requirement . rnJike past extensionS. the provisionS 
of ne" bail-out criteria will al1 o-w jurisdictions who have obeyed the 
law and accepted minority participation in the political process to 
e.xempt tht>mselns from the preclearance requirement, instead of haY­
ing to wait for a mere expiration date. Ho-we\·er, becauS<> there is no 
longer a "mere expiration date .. many perceiw.d the new bail-out 
criteria as ~xtending the srwcial pro,·isions of the Act in perpetuit>. 
The time cap was included to address this concern. As explained in 
detail in thE> Committee R eport, the new bail-out is fair and achie,·able 
and I anticipate that the Yast majority of eonred jurisdictions will 
be able to exempt themsehes from the-preclearance requirement long 
before the expiration of the twenty-fiye year period. H oweYer, if there 
are some recalcitrant jurisdictions still subject to Section 5 after 
twenty-fi.Ye years, their preclearance obligat.ions "ill automatically 
terminate unless the Congress deems that a furth er extension is 
necessary. 

365 



LEGISLATIVE HISTORY 
P .L. 97-205 

CONCLUSION 

I belieYe that. the Committee should be commended for the manner 
in which it has handled the Voting Rights Act Amendments of HH~2. 
Many aspects of this legislation were highly controversial. Yet the 
Committee was able to move the Bi11 expeditiously through the Com­
mittee process, and report fair, and effective legislation which has 
commanded overwhelming biDartisan support. Credit should go to 
Senator Hatch , whose Constitution Subc.ommittee held exhaustive, 
well-balanced hearings on this matter which were of great assistance 
to Committee members in workin2' with the complicated legal issues 
im-olved. In addition, Chairman Thurmond should be applauded for 
the. leadership displayed throughout the Committee process. It should 
be noted that of the three previous occasions when the Senate Judiciary 
Committ~e has had under consideration the Votinl! Rights Act, only 
once was the Committee Chairman able to move the legislation out 
of the Committee. The controversial history of the Voting Rights 
Act underseores the feat. which Chairman Thurmond has accomplished. 

[page 196] 

I a.m pleased with the measure reported by the Committee and 
nm confident. that it shall be successful in erad icat ing the remaining 
vest~es of racial discriminat ion in votin~ . I express my views not to 
take issue with the bo_dy of the Report., but to reflect upon the path 
hy which this proposal was concei,·eu. I shall confine my remarks to 
the Section 2 issue. 

DeTeloping the Committ(> <' bill was not a simple undertaking. The 
h~a.rtfelt proble-m in this instanee was not one easily addressed by 
eold legalise. The compromise proposal e\·entually adopted by the 
Committee re.tlects the complexi ties and subtlet ies of this problem. 
The key to understanding the congressional intent of the new Section 
~language lies in an understanding of the eSS(>nce of our solution as 
it deYeloped. 

Although there were hanl -fought battles onr the spe.cifie language 
of this proposal a consensus dewl opeJ in this Commit~ that pla in 
nnd simply, effective bars to thf' full and fair pol itical participation 
hv all citizens must be remon•<L whether thoSf' bnrs are intentional 
oi· not ; but that there be safeguards to guarantee that what we are 
lmnning is actual discrimination in the politiCJl.l proce~ses, not di s­
pr-oport.ionat:.e electoral outcomes, per se. 

0\'ERYIEW OF THE H O'CSE A~"D SEXATE PROCEEDIXOS 

The House of Repre.sentati,·es recognized the delicacy of the pro­
posed change to a "results" test in Section 2. Critics of this change 
rnised the specter of proportional representation as the inedtable out­
come of this changp. "Thile some have labeled this argument. a "scare 
t.nctir" the House recognized the real threat that proportional rep­
t,•sentation could be. the t.erminal point of the change to a simple 
"results" test. The House a.ck"'Tlowledwd this very real possibility and 

366