Voting Rights Act Report together with Additional Views of the Subcommittee on the Constitution to the Senate Judiciary Committee

    97TH CoNGRESs } 
2d Session COMMITTEE PRINT 

VOTING RIGHTS ACT 

REPORT 

together with 
ADDITIONAL VIEWS 

OF THE 

SUBCOMMITTEE ON THE CONSTITUTION 

TO THE 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

NINETY-SEVENTH CONGRESS 

91-862 0 

SECOND SESSION 

ON ' 

s. 1992 

APRIL 1982 

Printed for the use of the Committee on the Judiciary 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1982 

• • 

-~/_ 



• 

COMMITTEE ON THE JUDICIARY 

STROM THURMOND, 

CHARLES McC. MATHIAS, JR .. , Maryland 
PAUL LAXALT, Nevada . 
ORRIN G. HATCH, Utah 
ROBERT DOLE, Kansas 
ALAN K. SIMPSON, Wyoming 
JOHN P. EAST, North Carolina 
CHARLES E. GRASSLEY, Iowa 
JEREMIAH DENTON, Alabama 
ARLEN SPECTER, Pennsylvania 

South Carolina, Chairman 

JOSEPH H. BIDEN, JR. , Delaware 
EDWARD l\1. KENNEDY, Massachusetts 
ROBERT C. BYRD, West Virginia 
HOWARD l\I. METZENBAUM, Ohio 
DENNIS DECONCINI, Arizona 
PATRICKJ. LEAHY, Vermont 
MAX BAUCUS, Montana 
HOWELL HEFLIN, Alabama 

VINTON DEVANE LIDE, Chief Counsel 
QUENTIN CROMMELIN, Jr., Staff Director 

SUBCOMMITTEE ON THE CONSTI TUTION 

ORRIN G. HATCH, Utah, Chairman 

STROM THURMOND, South Carolina DENNIS DECONCINI, Arizona 
CHARLES E. GRASSLEY, Iowa PATRICK J . LEAHY, Vermont 

STEPHEN J . llfARKMAN, Chief-Counsel and Staff Director 
RANDALL RADER, General Counsel 

PETER E. ORMSBY, Counsel 
ROBERT FEIDLER, Minority Counsel 



PREFACE 

This report of the Subcommittee on the Constitution has been pre­
pared because of the importance of the issues involved in current pro­
posals to change the Voting Rights Act of 1965 and the far-reach­
ing constitutional and public policy implications of these proposed 
changes. 

ORRIN G. HATCH 
Chairman, Subcommittee on the Constitution. 

(III) 





CONTENTS 

Page 
I. Summary of issue ______________________ ------______ _____ ___ __ 1 

II. History of subcommittee action________________________ ______ __ 4 
III. Legislative evolution of the Voting Rights Act_______________ ___ _ 7 

A. Voting Rights Act of 1965---------~------- --- ----- -- - -- 8 
B. 1970 amend ments__ _________________________________ __ 10 
C. 1975 amendments___________________________________ __ 10 

IV. Judicial evolution of the Voting Rights Act __________ ________ __ __ 11 
A. The original objective ___ ____________________________ __ 11 
B. New objectives----------------------- -- ------------ -- 13 
C. Section 5 v. Section 2-------------------------------- -- 15 

Y. Action by House of Representatives_________________ ___ ______ __ 18 
VI. Section 2 of the Act--------~--------------------------------- 20 

A. Intent v. Results---- - -------------------------------- 20 
B. Proportional representation by race __ --- - - - -------- ----- 32 
C. Racial implications____________________________________ 41 
D. Impact of results test__________________________________ 44 

VII. Section 5 of the Act________________________________________ __ 52 
A. Operation of preclearance_-__________________ ___________ 52 
B. Continued coverage and bail-out ___ ~- - ------------------ 53 
C. Bail-out criteria in House legislation_____________________ 54 

VIII. Constitutionality of House legislation_____________ __________ ____ 59 
A. Section 5- -------------- ---------------------- -------- 59 
B. Section 2- --------------------------------- ----------- 63 

IX. Recommendations and section-by-section analysis________________ 67 
X. Conclusion__________________________________________________ 70 

XI. Cost estimate____________________ ____ ________________________ 70 
Attachment A-Questions and answers: Intent v. Results_______________ 71 
Attachment B-Selected quotes on section 2 and proportional representation_ 80 
Additional views of Senator DeConcini and Senator Leahy______________ 82 

(V) 





VOTING RIGHTS ACT 

The Committee on the Judiciary's Subcommittee on the Constitu­
tion, to which \vas referred S. 1992 to amend the Voting Rights Act 
of 1965, to extend certain provisions of the Act, having considered the 
same, reports favorably thereon with amendments and recommends to 
the full Committee that the bill as amended do pass. The bill would 
extend intact the Voting Rights Act for another period of ten years. 

I. SuMMARY oF IssUE 

The forthcoming debate in the United States Senate on the Voting 
Rights Act will focus upon one of the most important public policy 
issues ever to be considered by this body. It is ·an issue with both pro­
found constitutional implications and profound practical conse­
quences. In summary, the issue is how this Nation will define "civil 
rights" and "discrimination". 

Both in popular parlance and within judicial forums, the concept 
of racial discrimination has always implied the maltreatment or dis­
parate treatment of individuals because of race or skin color. As the 
Fifteenth Amendment to the Constitution states, in part: 

The right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State 
on account of race, color, or previous condition of servitude. 

In other words, discrimination has been viewed as a process by which 
wrongful decisions ·were made-decisions reached at least in part be­
cause of the race or skin color of an individual. 

This conception of discrimination has always been reflected in the 
constitutional decisions of the judicial branch of our Nation. In 
interpreting the Equal Protection Clause of the Fourteenth Amend­
ment, for example, the Supreme Court has observed: 

A law, neutral on its -face and serving ends otherwise within 
the power of government to pursue, is not invalid under the 
Equal Protection Clause simply because it may affect a great­
er proportion of one race than of another.1 

In other words, as the Court subsequently observed: 

Proof of racially discriminatory intent or purpose is re­
quired to show a violation of the Equal Protection Clause ... 
official a.ction will not be held unconstitutional solely because 
it results in a racially disp roportionate impact.2 

Proof of discriminatory intent or purpose is the essence of a civil 
rights violation for the simple reason that there has never been an 

1 Washington v. Davis, 426 U.S. 229, 242 (1976) . 
2 Village of Arlington Heights v. Metropolitan Housing Development Authority, 429 U.S. 

252, 264-5 (1977). 

(1) 



2 

obligation upon either public or private entities to conduct their affairs 
in a manne.r designed to ensure racial balance or proportional repre.­
scntation by minorities in employment, housing. edur.ation. voting. 
and the like. The traditional obligation 1mder civil right,; laws has 
been to conduct public or private affairs in a manner that does not 
involve disparate treatment of indiYiduals becmt8e of race or skin 
color. 

'Vhat is being 1iroposed in the mntext of the present Voting Rights 
Act debate is that Congress alter this traditional standard for identify­
ing diserimination, i.e., the "intent" standard, and substitnt~, a new 
"results" standa.rd. Rather than focusing upon the process of discrimi­
nation. the new standard would focus upon electoral results or out­
come. The propose<! amendment would initiate a landmark transfor­
mation in the principal goals and objectives of the Voting Rights Act. 
It should be Hnderstood at the outset that proponents of the results test 
n reno longer talking ·about "discrimination~'; they are simply talking 
about "disparate impact.'' These concepts have little to do with one 
another. 

Rather than simply focusing upon those public actions that ob­
structed or interfered with the access of minorities to the registration 
and Yoting processes, the proposed results test would focus upon 
whether or not minorities were successful in being elected to office.· 
Discrimination would be identified on the basis of whether minorities 
were proportionately represented (to their population) on elected 
legislative bodies mther than upon the question of whether minorities 
had been denied access to registration and the ballot because of their 
race or skin color. 

Despite objections to the description of the results test as one 
focused upon proportional representation for minorities, there is no 
other logical meaning to the new test. To speak of "discriminatory 
results" is to speak purely and simp'ly of racial balance and racial 
quotas. The premise of the results test is that any disparity be.tween 
minority population and minority representation evidences discrimi­
nation. As the Supreme Court observ~d in the recent Oity of llf obile 
v. Bolden decision: 

·The theory o£ the dissenting opinion [proposing a "results" 
test] appears to be that every political group or at least every 
such group that is in the minority has a federal constitutional 
right to elect candidates in proportion to its numbers ... 
The Equal Protection Clause does not ·. require proportional 
representation as an imperative of political organization.3 

Apart from the fact that the results test imports into the Voting 
Hights Act a theory of discrimination that is inconsistent with the 
traditional understanding o£ discrimination, the public policy impact 
of the new test would be far-reaching. Under the results test, Federal 
com•ts will be obliged to dismantle countless systems of State and local 
Government that are not' designed to achieve proportional representa­
tion. This is precisely what the plaintiffs attempted ·to secure in the 
JU obile case and, in fact, were successful in achieving in the lower 
Federal courts. Despite the fact that there was no proof of discrimi-

• 446 u.s. 55, 75 (1980). 



3 
/ 

natory purpose in tlw. establishment of the electoral (at-large) system 
in Mobile and despite the fact that there were clear and legitimate non­
rliscriminatory purposes to such a system, the lower court in Mobile 
ordered a total revampment of the city's municipal system because it 
had not achieved proportional representation. 

The at-large system of election is the principal immediate target of 
proponents of the results test.4 Despite repeated challenges to the 
propriety of at-large systems, the Supreme Court has consistently re­
jected the notion that the at-large system of election is inherently 
discriminatory toward minorities.5 The comt in Mobile has observed 
that literally thousands of municipalities and other local governmental 
units throughout the Nation have adopted an at-large system.6 

To establish a results test in section 2 vvould be to place at-large 
systems in constitutional jeopardy throughout the Nation, particu­
larly if jurisdictions with such electoral systems contained significant 
numbers of minorities and lacked proportional.representation on their 
elected representative councils or legislatures. Legislative bodies 
gene1'ally that lacked proportional representation of significant 
minority groups would be subject to close scrutiny by the Fede,ral judi­
ciary, under the proposed results test. To the extent that elec­
toral results become the focus of discrimination analysis, and indeed 
define the existence or nonexistence of discrimination, it is difficult 
to conceive how proportional representation by race can avoid being 
established in the law as the standard for identifying discrimination 
and, equally important, as the standard for ascertaining the effective­
ness of judicial civil rights remedies. 

Beyond the fact, however, that the results test, in the view of the 
subcommittee, will lead to a major tFansformation in the idea of dis­
criinination as well as to a sharp enhancement of the role of the Fed­
eral courts in the electoral pr0Cf>A3s, the results test is an inappropri­
ate test for identifyin~ discrimination for several other reasons. 
First, the results test will substitute, in the place of a clear and well-

< One prominent voting rights litigator. Mr. Armand Derfner of the Joint Center for 
Political Studies, and formerly of the Lawyers Committee for Civil Rights Under Law, 
observed during tlle 197() hearings on the Voting Rights Act, 

And I would hope that maybe ten years from now we would have learned and 
progressed enough to sar that for some of the things that Section () has done we no 
longer need it while for other things it might be time. to put in permanent bans. For 
example, we might want t o put in permanent bans that bar at-large elections not only 
in the covered states but perhaps in the rest of the country as well. Hearings Before the 
House Subcommittee on Constitutional and Civil Rights on the Voting Rights Act 
Bxtension, March 17, 197ii at 632. 

Professor 0 Rourke has observed : 
If the revision of Section 2 is not intended to invalidate nationwide at-large elections 

in every city with a significant mlnocit.v population, there is nevertheless nothing in 
the language of Section 2 to foreclose this development. Statement submitted to the 
Subcommittee on the Constitution by Timothy O'Rourke, Professor, university of 
Virginia, ~1arch 3, 1982. 

• See, e.g., City of 1llo1Jile v. Bolden, 446 U.S. 55 (1980) ; White v. Regester, 412 U.S. 755 
(1973) ; Whitcomb v. Chavis, 403 U.S. 124 (1971) . 

o 446 U.S. at 60. Approximately 12,000, ·or two-thirds of the 18,000 municipalities in 
the Nation, have adopted at-large s)·stems of election. The )funicipal Yearbook, Interna­
tional .City Managers Association (1972) . In addition, of the fifty largest school boards 
in the Uiiite<l Stat<'s, approximately two-thirds of those use at-large election systems as 
w<'IL Jllack Voters , .. Mcliono11gh, 5fiu F.2d 1. 2 (.1st Cir. 1977) . For general discussion of 
Yarloua methods .of municipal election and the arguments for each, see B. Banfield & J. 
Wilson City Politics 1ii1 (1963) ; Jewell, Local Systems of Representation: Political 
Conseq;,ences and Judielal .Choices. 3fi Oeo. Wash. L.Rev. 790 (1968) ; M. Seasongood, Local 
<;onrnment In the lin! ted States ( l!J:{:{) . 'l'he growth of the at-large electoral ~ystem 
occurred during the early decades .of the 20th century as a Progressive-inspired reform 
in reHponse to the corruption that had often been characteristic of municipal ward 

' "ystems. The theory was that more responsible municipal actions would be taken if each 
member of the city council was responsible to the entire electorate rather than solely to 
his own ward or district. 

91 - 862 0 - 82 - 2 



4 

underStood rule of law that has developed under the intent standard, _a 
standard that is highly uncertain and confusing at best. The rule of 
judges will effectively replace tl1e rule of law that, up to now, has 
existed in the area of voting rights. There is no guidance otfered 
to either the courts or to individual communities by the results test as 
to which electoral structures and arrangements are valid and which 
are invalid. 6-iven the lack of proportional representation and the exist­
ence of any one of a countless number of ··objective factors of dis­
crimination," it is difficult to see how a prima facie case (if not an 
irrebuttable case) of discrimination would not be established. 

Second, the results test is objectionable because it would move this 
Nation in the direction of increasingly overt policies of race-conscious­
ness. This would mark a sharp departure from the constitutional 
development of this Nation since the Reconstruction and since the 
classic dissent by the elder Justice Harlan in Plessy v. Ferguson in 
1897 calling for a "colorblind" Constitution.7 This would mark a sharp 
retreat from the notions of discriminatiOn established as the law of our 
land in Brown v. Board of Education, the Civil Rights Act of 1964, 
and indeed the Voting Rights Act itself. 
If the results test is incorporated into the Voting Rights Act-and 

then quite likely into other civil rights statutes as ·a result- the 
question of race will intrude constantly into decisions relating to 
the voting and electoral process. Racial gerrymandering and racial 
bloc voting will become normal occurrences, given legal and constitu­
tional recognition and sanction by the Voting Rights Act. Increasing, 
rather than decreasing, focus upon race and ethnicity will take place 
in the course of otherwise routine voting and electoral decisions. 

The Voting Rights Act has proven the most successful civil rights 
statute in the history of the Nation because it has reflected the over­
whelming consensus in this Nation that the most fundamental civil 
right of all citizens-the right to vote-must be preserved at what­
ever cost and through whatever commitment required of the Fed­
eral Government. Proponents of the House measure would jeopardize 
this consensus by effecting a radical transformation in the Voting 
Rights Act from one designed to promote equal access to registration 
and the ballot box into one designed to ensure equality of outcome 
and equality of results. It is not a subtle transformation; rather it is 
one that would result in a total retreat from the original objective of 
the Voting Rights Act that considerations of race and ethnicity would 
someday be irrelevant in the electoral process. Under the House­
proposed amendments, there wou'ld be nothing more important. 

II. HISTORY oF SuBco~unTrEE AcTION 

The Subcommittee on the Constitution of the Senate Committee on 
the Judiciary had referred to it during the 97th Congress five bills 
relating to the Voting Rights Act: S. 53 (introduced by Senator 
Hayakawa), S. 895 (introduced by Senator Mathias and Senator Ken­
nedy), S. 1761 (introduced by Senator Cochran), S. 1975 (introduced 
by Senator Grassley), and S. 1992 (introduced by Senator Mathias 

"'P!essy v. Ferguson, 163 U.S. 537, 559 (1897). 



5 

and Senator Kennedy). The latter bill was identical to legislation, 
H.R. 3112, approved by the House of Representatives on October 5, 
1981. 

As the first priority of the subcommittee during the 2d session of 
the 97th Congress, the subcommittee held nine days of hearings on 
the Voting Rights Act from .Januaty 27, 1982 through March 1, 1982. 
Appearing before the subcommittee were the following witnesses: On 
January ~7, the subcommittee took testimony from William French 
Smith, the Attorney General of the United States; Professor \Valter 
Berns, American Enterprise Institute; Benjamin Hooks, Executive 
Director, NAACP; Vilma Martinez, Executive Director, Mexican 
American Legal Defense and Education Fund; Ruth Hiner£eld, 
President, League of Women Voters; and U.S. Senator Charles 
Mathias of Maryland. 

On January 28, the Subcommittee heard U.S. Senator Thad 
Cochran of Mississippi; Laughlin McDonald, Director of the Southern 
Regional Office of tlie American Civil Liberties Union; U.S. Repre­
sentative Henry Hyde of Illinois; Professor Barry Gross, City College 
of New York; .Henry Marsh III, the Mayor of Richmond, Virginia; 
U.S. Representative Thomas Bliley of Virginia; and Profes&or 
Edward Brier, National Humanities Center. 

On February 1, the subcommittee heard U.S. Representative Cald­
well Butler of Virginia; Professor Susan McManus, University of 
Houston ; Joaquin Avila, Associate Counsel of the Mexican-American 
Legal Defense and Education Fund; Steven Suitts, Executive Director 
of the Southern Regional Council ; and David Walbert, Attorney and 
former Professor at Emory University. 

On February 2, the subcommittee took testimony from Professor 
John Bunzel, Hoover Institution at Stanford University; State Sena­
tor Henry Kitksey of Mississippi; Professor Michael Levin, City 
College of New York; Abigail Turner, Attorney; and Armand 
Dedner, Joint Center for Political Studies. 

On February 4, the subcommittee heard U.S. Senator S. I. Haya­
kawa of California; Governor William Clements of Texas; U.S. 
Represent•ative James Sensenbrenner of Wisconsin; E. Freeman 
Leverett, Attorney; Professor Norman Dorsen, N~w York University, 
representing the American Civil Liberties Un~on; Joseph Rauh, Lead­
ership Conference on Civil Rights; and Rplando Rios, Legal Director 
of the Southwest Voter Registration Proje'~t ... , . · 

On February, 11, the su~C011fmittee hear~ Robert Brinson, At­
torney; Thomas McCain, Chairman, ;Democratic Party of Edgefield 
County, Squth ,Carolina; Arthur Flemmi~g, Chairman of the U.S. 
Commission on Civil Rights; and Fra~1k. Parker, Director of the Vot­
ing Rights Project, Lawyers' Committee for Civil Rights under Law. 

On February 12, the subcommittee heard Professor Henry Abra­
ham, University of Virginia; Julius Chambers, President, NAACP 
Legal Defense Fund; Professor Donald Horowitz, Duke University; 
Professor James Blumstein, Vanderbilt University; and Professor 
Drew Days, Yale University. 

On February 25, the subcommittee heard Irving Younger, Attor­
ney; Professor Archibald Cox, Harvard University, representing Com­
mon Cause; Professor George Cochran, University of Mississippi; 



6 

Nathan Dershowitz, American Jewish Congress; David Brink, Pres­
ident, American Bar Association; Arnoldo Torres, Executive Director, 
League of United Latin American Citizens; and Charles Coleman, 
Attorney. 

On March 1, the subcommittee heard from U.S. Representative 
Harold ·washington of Illinois; U.S. Representative John Conyers 
of Michigan; U.S. Representative ·walter Fatmtroy of the District 
of Columbia; and William Bradford Reynolds, Assistant Attorney 
General of the United States for Civil Rights. 

In addition, the subcommittee received a large number of written 
statements from other interested individuals and organizations that 
will become part of the permanent record of these hearings. Senator 
Orrin G. Hatch of Utah, Chairman of the Subcommittee on the Con­
stitution, chaired the hearings of the subcommittee. 

On March 24, 1982, the Subcommittee on the Constitution met in 
executive session to consider legislation to extend, the Voting Rights 
Act. S. 1992, introduced by Senators Mathias and Kennedy, was re­
ported out of subcommittee by a unanimous 5-0 vote following the 
adoption of a group of five amendments offered en bloc by Senator 
Grassley. The amendments were as follows: 
Amendment 1 

Strike everything in Section 1 from page 1, line 3 through page 8, 
line 14 and insert in lieu thereof, "That this Act may be cited as the 
"Voting Rights Act Amendments of 1982." 

Amendment ~ 
Strike everything in Section 2 from page 8, line 15 through page 8, 

line 22 and insert in lieu thereof- · 
SEc. 2. Section 4 (a.) of the Voting Rights Act of 1965 is 

amended by-
(1) striking out "seventeen" each time that it appears 

and inserting m lieu thereof "twenty-seven"; and 
(2) striking out "ten:' each time that it appears and 

inserting in lieu thereof "seventeen". 

AmendmentS 
Striking everything in Section 4 from page 9, line 1 through page 

9, line 7. 
Amendment 4 

Strike everything in Section 5 from page 9, line 8 through page 9, 
line 10. 
A. mendment 5 

Strike the description of the bill preceding the enactment clause 
and substitute in lieu thereof: "To amend the Voting Rights Act of 
1965 to extend certain provisions for ten years." 

The effect of the amendments was to transform S. 1992 into a 
straight ten-year extension of the Voting Rights Act, the longest such 
extension in the Act's history. Voting m favor of final reporting of 
the bill as amended were Chairman Ha;tch and Subcommittee Mem­
bers Thurmond, Grassley, DeConcini, and Leahy (by proxy). Because 
the House-approved legislation, H.R. 3112, has already been placed 



7 

directly upon the Senate calendar oontrary to normal parliamentary 
practice, the subcommittee chose to prepare this report. 

III. LEGISLATIVE EvoLUTIOK OF THE VOTING RIGHTS Aar 

The Fifteenth Amendment to the United States Constitution, rati­
fied in 1870, states: 

SEc. 1. The right o£ citizens o£ the United States to vote 
shall not be denied or abridged by the United States or by any 
State on account o£ race, color, or previous condition of 
servitude. 

SEc. 2. The Congress shall have power to enforce this arti­
cle by appropriate legislation. 

Shortly after ratification, Congress enacted two laws pursuant to its 
enforcement authority in the Fifteenth Amendment designed to out­
law activities interfering with the voting rights o£ the newly-freed 
slaves. The Civil Rights Act o£ 1870 8 established Federal penalties 
for interfering with voting in state and Federal elections £or reasons 
o£ race or color discrimination while the Anti-Lynching (Ku Klux 
Klan) Act o£ 1871 9 sought to penalize state actions which deprived 
persons o£ their civil rights. 

Despite these efforts, the progress o£ blacks in securing the protec­
tions o£ the Fifteenth Amendment was slow and erratic. The use o£ 
poll taxes, literacy tests, morals requirements, racial gerrymandering, 
and outright intimidation and harassment continued largely un­
checked until well into the 20th century. It was not until the late 
1950's that the Federal Government reiterated its constitutional com­
mitment to equality o£ voting rights by enacting new enforcement 
legislation. Between 1957 and 1904, Congress enacted three statutes 
designed to enhance the ability o£ the Federa~ Government to challenge 
discriminatory election laws and procedures. 

In 1957, Congress enacted civil rights legislation 10 which author­
ized the Attorney General to initiate legal action on behalf o£ individ­
.uals denied the opportunity to register or vote on account o£ race or 
color. Most importantly, this enabled the aggrieved registrant or voter 
to shift the cost o£ the legal challenge to the Federal Govmnment. In 
addition, the Civil Rights Act o£ 1957 established the United States 
Commission on Civil Rights and provided it with responsibility £or in­
vestigating and reporting on those procedures and devic-es used by 
jurisdictions in a discrimmatory manner against racial minorities. 

In 1960, Congress again acted to strengthen the national govern­
ment's commitment to full and £air voting rights through passage o£ 
additionallegislation.11 The Civil Rights Acto£ 1960 went significantly 
beyond the earlier legislation by requiring the retention by local and 
state officials o£ Federal election records £or a peri<.>d o£ 22 months and 
v.uthorized the Attorney General to inspect such records at his discre­
tion. It also enabled Federal courts to identify "patterns and practices" 

8 Act of May 31 , 1870 (16 Stat. 140), amended by Act of February 28, 1871 (16 Stat. 
433) . The surviving statutes of this period are 18 U.S.C. See 241-2 and 42 U.S.C. Sec. 
1971(a), 198~ 1985(3). . 

• Act of April 20, 1871 (17 Stat. 13). 
1° Civil Rights Act of 1957, 71 Stat. 634 (42 U.S.C. 197(;). 
11 Civil Rights Act of 1960, 74 Stat. 86 (42 U.S.C. 1971). 



8_ 

of racial voting discrimination and to order on a class basis the regis­
tration of qualified persons of that race who had been victims of such a 
"pattern and practice". The Federal courts were authorized to appoint 
"voting referees" who would be empowered to enter a jurisdiction and 
register voters. 

Finally, Congress enacted the Civil Rights Act of 1964 12 which 
established landmark civil rights reforms in a wide number of areas. 
Title I of the Act prohibited local election officials from applying to 
applicants for registration tests or standards different from those that 
had been administered to those already registered to vote. It also estab­
lished a presumption of literacy (although rebuttable) for potential 
registrants who had completed a 6th grade English-speaking school 
education. In addition, the act established expedited procedures for 
judicial resolution of voting rights cases. -

A. VOTING RIGHTS ACT OF 1965 

Despite this renewed commitment by the Federal Government to en­
forcement of the guarantees of the Fifteenth Amendment, substantial 
registration and voting disparities along racial lines continued to exist 
in many jurisdictions. It was finally in response to the incontrovertible 
evidence of continuing racial voting discrimination that Congress en­
acted the single most important legislation in the Nation's history 
relating to voting rights-the Voting Rights Act of 1965.13 

This Act marked a significant departure from earlier legislative en­
actments in the -s~me area in establishing primarily, for the first time, 
an administrative process aimed at eliminating voting discrimination. 
Earlier legislation had primarily relied upon the judicial process for 
the resolution of these problems. The major objectives of the new ad­
ministrative procedures were to ensure expeditious resolution of al­
leged voting rights difficulties and to avoid the often-cumbersome 
process of judici•al case-by-case decisionmaking. 

Perhaps the most important provision of the Voting Rights Act was 
section 5 which required any state or political subdivision covered 
under a formula prescribed in section 4 of the Act (designed to 
identify jurisdictions with a history of voting discrimination) to "pre­
clear" any changes in voting laws or procedures with the United States 
Justice Department. No such change could take effect without the per­
mission of the Department. Under section 5, the political subdivision 
has the responsibility of showing that the proposed change "does not 
have the purpose and will not have the effect of denying or abridging 
the right to vote on account of race or color." 

"Covered" jurisdictions, i.e. those required to preclear with the Jus­
tice Department, included all states or political subdivisions which met 
the two-part tast of section 4: 

(1) Such a state or subdivision must have employed a "test 
or device" as of November 1, 1964. Such a "test or device" was 
defined to include literacy tests, tests of morals or character, 
or tests requiring educational achievement or knowledge of 
some particular subject; and 

12 Civil Rights Act of 1964, 78 Stat. 241 (42 U.S.C. 2000a). 
13 Voting Ril:'hts Act of 1965, 79 Stat. 437 ( 42 U.S.C. 1971, 1973 et. seq.). 



9 

(2) Such a state or political subdivision must have had 
· either a voter registration rate of less than 50 percent of age­

eligible citizens on that date, or a voter turn-out rate of less 
than 50 percent during the 1964 election. 

No part of the trigger :formula in section 4 referred to racial or color 
distinctions among either registrants or voters, or to racial or color 
populations within a jurisdiction. 

Jurisdictions covered by the trigger formula in the 1965 Act in~ 
eluded the entire States of Alabama, Georgia, Louisiana, Mississippi, 
South Carolina, and Virginia, and counties in North Carolina, Idaho, 
Arizona, Alaska, and Hawaii. 

Covered jurisdictions were to be eligibl~ for "bail-out" (or release) 
from coverage after a five-year period during which they were re­
quired to preclear voting law changes and to temporarily abolish the 
use of all "tests or devices." In establishing such a time period, Con­
gress recognized that the remedy of preclearance was an extraordi­
nary one that deviated sharply from traditional notions of federalism 
and state sovereignty over state electoral processes.14 

Other important provisions of the 1965 Act included: 
Section 2, a statutory codification of the Fifteenth Amendment, 

restated the general prohibitions of that Amendment against the "de­
nial or abridgement" of voting rights "on account of" race or color. 

Section 6 authorized the Attorney Genera'l to send Federal ex­
aminers to list voters for registration in any covered county from 
which he received twenty or more written complaints of denial of vot­
ing rights or whenever he believed on his own that such an action 
would be necessary. 

Section 8 authorized the Attorney General to send election observers 
to any political subdivision to which an examiner had been earlier sent. 

Section 10 prohibited the use of poll taxes in state elections.15 

Section 11 established various criminal offenses with respect to 
failure to register voters, or count votes, intimidating or threatening 
voters, providing false registration information, and voting more 
than once. 

Section 12 established criminal offenses with respect to altering 
ballots or voting records, and conspiring to interfere with voting 
rights. 

It is important to emphasize that the Voting Rights Act of 1965 
is a permanent statute that is not in need of periodic extension. The 
only temporal provision in the law is the applicability of the pre­
clearance and certain other requirements .to covered jurisdictions. 
By the terms of the 1965 Act, such extraordinary remedies were to be 
applied for a five-year period after which time Congress presumed 
the residual effects of e·arlier discrimination were likely to be suffi­
ciently attenuated, and the covered jurisdictions would be allow·ed to 
seek bail-out. 

"One high-ranking official of the Justice Department has said of the Act that it "repre­
sent• a sub~tantlal departure from ... ordinary concepts of our federal system." Hearings 
on Voting Rights Act Extension Before Senate Judiciary Subcommittee on Constitutional 
Rights. 94th Congress, 1st Session, J. Stanley Pottinger, Assistant Attorney General of 
the United States, at 536. 

11 The Twenty-Fourth Amendment to the Constitution had earlier been ratified In 1964, 
outlawing poll taxes in Federal elections. The Supreme Court held in 1966 that state poll 
taxes Yiolated the Equal Protection clause of the Fourteenth Amendment. Harper v. Vir­
ginia State Board of Elections, 383 U.S. 663 (1966). 



10 

B. 1970 AMENDMENTS 

In 1970, however, upon reviewing the impact of the Voting Rights 
Act, Congress concluded that, while significant progress had been 
made with respect to voting rights, there was need for an additional 
extension of the preclearance period for covered jurisd:ctions. Such 
jurisdictions, thus, were required to continue to preclear voting law 
changes for an ·additional five-year period as Congress redefineJ the 
Pa,sie l>ail-out requirement. Instead of covered jurisdictions being re­
quired to maintain "clean hands" for a five-year period as provided 
for in the original 1965 Act, this requirement was changed to ten­
years. "Clean hands" simply meant the avoidance by the jurisdiction 
of a proscribed "test or device" for the requisite period. 

In addition, the basic coverage formula was amended by updating 
it to include the 1968 elections as well as the 1964 elections. As a result 
of this change in the trigger formula, counties in Wyoming, Cali­
fornia, Arizona, Alaska, and New York were covered, as well ·as 
political subdivisions in Connecticut, New Hampshire, Maine, and 
Massachusetts. The 1970 amendments to the Act also extended nation­
wide the five-year ban on the use of "tests or devices" as defiJ;J.ed by the 
Act and wught to establish a minimum voting age of 18 in Federal and 
state elections.16 Section 202 abolished residency requirements in Fed­
eral elections. 

C. 19 7 5 AMENDMENTS 

In 1975, ·Congress again reviewed the progress achieved under the 
1965 Act and the 1970 amendments and concluded once more that it 
was necessary to redefine the bail-out requirements for covered juris­
dictions. Such jurisdictions were on the verge of satisfying their ten­
year obligation of preclearance and the avo1dance of voting "tests or 
devices". In the 1975 amendments to the Voting Rights Act, Congress 
redefined the bail-out formula to require seven·teen years of "clean 
hands". Jurisdictions covered under the 1965 formula could not hope 
to bail-out prior to 1982 under the amended formula. 

In additwn, Congress once again amended and updated the basic 
coverage formula in section 4 to include the 1972 election as well as 
the 1964 and .the 1968 elections. Most significantly, however, Congress 
chose to redefine the meaning of '\vhat constituted a wrongful "test or 
device". Such a "test or device" was newly defined to include the 
use of English-only election materials or ballots in jurisdictions 
where a single "language-minority" group comprised more than 5 per­
cent of the voting-age population. In addition to states already cov­
ered, preclearance was required of those states or political subdivi­
sions which, in 1972, had (a) less than 50 percent voter registration 
or voter turn-out; (b) employed English-only election materials or 
ballots; and (c-) had a "language-minority" ponulation of more than 
5 percent. Such "language-minorities" were defined to include Amer-

"In Oregon v. Mitchell, 400 U.S. 112 (1970), the Supreme Court subsequently struck 
down as unconstitutional this provi>ion insofar as it attem:>ted to set requirements for 
state elections ("the 18 ~-ear old vote provisions of the Act are constitutional and enforce­
able Insofar as ther pertain to fpneral elections and nnconRtitn ' ionnl anrl nnpnforPeahle 
inRofa r as the)- pertain to state and local elections.") . I d . at H8. The Twenty-Sixth Amend­
ment was ratified In 1971 overturning Oregon v. Mitchell in this regard and establishing 
r. constitutional right in eighteen year olds to vote in all elections. · 



11 

ican Indians, Asian Americans, Alaskan Natives, and persons o£ 
Spanishheritage.U . . . 

Included under the 1975 coverage £ormnla ;were. m additiOn to those 
states covered by the 1965 and 1970 provisions, the states o£ Texas, 
Arizona, and Alaska, and counties in California, Colorado, Florida, 
Michigan, North Carolina, and South Dakota. In addition to the sig­
nificant expansion in the concept o£ what constituted a wrongful "test 
or device" to encompass the use o£ English-only materials. Congress 
also established other requirements relating to bilingualism. In section 
203 o£ the Act, Congress required bilingual ballots and bilingual elec­
tion materials and assistance in all jurisdictions in which there were 
populations o£ "language minorities" greater than 5 percent and in 
which the literacy rate among that "language minority" was less than 
the national average.18 Finally, the 1975 amendments to the Voting 
Rights Act made permanent the nationwide ban on literacy tests and 
other "tests or devices". 

In the impending debate, a major issue again will be whether or not 
Congress wiil redetine the bail-out standard when a number o£ juris­
dictions covered by the original1965 Act are on the verge o£ satisfying 
the earlier standard, i.e. seventeen years o£ avoidance o£ the use o£ 
"tests or devices". In the absence o£ 31ction by Congress, the Voting 
Rights Act will not "expire" as some have wrongly suggested. 
Rather what will occur on August 6, 1982 is that a number o£ covered 
jurisdictions will finally be permitted to apply to the District Court 
£or the District o£ Columbia £or a declaratory judgment that they 
have abided by their statutory obligations and ought to be permitted to 
bail-out. None o£ the permanent provisions o£ the Voting Rights Act 
will "expire", e.g. ban on literacy tests, poll taxes, and discriminatory 
tests or devices; prohibitions upon certain residency requirements; 
laws against harassment and intimidation in the voting process; pro­
tection o£ voting rights £rom denial or abridgement on account o£ race 
or color; and so forth. Moreover the present law requires any state or 
subdivision that has been granted bail-out to remain within the District 
Court's jurisdiction £or an additional five-year "probationary" 
period. 

IV. JumciAL EvoLUTION OF THE VoTING RIGHTS AcT 

A. Tl-IE ORIGINAL OBJECTIVE 

'T'h<>. Vot.ir10: Ri,.htc:: Act of Hl65 was designerl bv Congres..s to "banish 
the blight o£ racial discrimination in voting." 19 The raCial discrimina­
tion to which the Act was directed enta.iled methorls nnrl tltctirs used 
to disqualify blacks £rom registering and voting in Federal and state 
elections.20 As discussed previously the Act was the fourth modern 
legisla.tivr. rrttempt at Pnspring· thr rights o£ disenfranchised Southern 
blacks. and has proven highly effective. 

1·: Th~"c ls no re~uirem~nt that there be a showing that such language minorities speak 
only that language. They may be entirely fluent in English. Department of Justice Regula­
tion. 28 C.F.R. Section 55.1 et. seq. (1976). See infra note 238. 

1• Sect1on 20R(b\ coverage extenils to approximately 380 jurisdictions in 29 states. 
"So11th Carolina Y. Katzen bach, 383 U.S. 301. 308 (1966\. 
2° Fo• n. hi•ton• of <'ve,-,t• which led to enactment. an<l iliscus•lons of. the original pur­

pose• of the Act. see H.R. Ren. No. 43f!. S!Jth Cong. 1st SPss. 8-16; S. Rep. No. 162, pt. 3, 
89th Cong. 1st Sess. 3-16; South Carolina. v. Katzenbach, 383 U.S. 301, 308-25 (1966). 

91-862 0 - 82 - 3 



12 

The emphasis in the original Voting Rights Act was upon equal 
electoral access through facilitating registration and securing the 
ballot. As Roy Wilkins, representing the Leadership Conference on 
Civil Rights, stated in 1965 in testimony before this committee: 

The history of the struggle for the right to participate in 
Federal, state and local elections goes back to the period of 
Reconstruction .... In too many areas of the Nation, Negroes 
are still being registered one by one and only after long liti­
gation. We must transform this retail litigation method of 
registration into a wholesale administration procedure reg­
istering all who seek to exercise their democratic birthright.21 

Professor Gross described the original objectives of the Act as 
follows: 

The purpose of the Act was precisely and only to increase 
the number of black registered voters. In the 1960's and 
e1w~i~r, to those who fought for it, equality meant equality 

. of opportunity-in this case, the opportumty to vote.22 

Professor Bunzel was in firm agreement: 
Originally, the Voting Rights Act was clear that it was 

directed to remedying disenfranchisement.23 

This original congressional objective of massive registration and 
e11franchisement of blacks has been substantially transformed since 
1965. 'The present· debate reflects this transformation since it focuses 
upon daims to equal electoral "results," maximl1m political "effectiv~­
ness," and "diluted" votes. The evolution of the 1965 Act is in large 
part attributable to a numbe.r of important judicial decisions. 

The legislatio11 was challenged shortly after its enactment in South 
Oarolina v. Katzenbaeh,24 wherein the Supreme Court upheld the 
challenged provisions of the Act as constitutionally permissible 
methods of protecting the right to register and vote. Although ac­
knowledging that the preclearance provisions of section 5 "may have 
been an uncommon exercise of congressional power," 25 Chief Justice 
Warren, speaking for the Court, stated that "exceptional conditions 
can justify legislative measures not otherwise appropriate." 26 Thus, 
the preclearance provisions were upheld "w1der the compulsion of ... 
unique circumstances" 27 which Congress had found from its own evi­
dentiary investigation to exist in the covered jurisdictions.28 From this 
rather limited holding based upon "exceptional conditions" and 

"Statement of Roy Wilkins, Executive Director, NAACP, and Chairman, Leadership 
Conference on Civil Rights, Hearings Before the 'Senate Committee on the Judiciary, on 
the Voting Rights Act, 89th Congress, 1st Session (1965) at 1005-07. 

•• Hearings on the Voting Rights Act Extension B~fore . the •Senate Judiciary Subcommlt­
t<!e on the Constitution, 97th Congress, 2d Session (1982) (hereafter " Senate Hearings·') 
January 28, 1982, Barry Gross, l'rofessor. City College of New York. 

"" .Sen11te Hearings, February 2, 1982, John Bunzel, Senior Fellow, Hoover Institution, 
Stanford University. · · 

.. 383 u.s. 301 (1966). 
" Jd. at 334. 
•• Id. at 361. In his dissent as to the constitutionality of Section 5 In South Carolina 

v. Katzenbach, Justice Black noted : 
One of the most basic premises upon which our structure of government was 

founded was that the Federal Government was to have certain specific and limited 
powers and no others, and all other power was to be reserved either "to the States 
resDectlvely, or to the people." Certainly if all the provisions of our Constitution 
which limit the power of the Federal Government and reserve other power to the 
States are to mean anything, they mean at least that the 'States have power to 
pass laws and amend their constitutions without first sending their officials hun­
dreds of miles away to beg federal authorities to approve them. 
383 U.S. at 359. (Footnote omitted.) 

"'Id. at 334. 
"'Id. at 335. 



13 

"unique circumstances" then extant in the covered jurisdictions, there 
evolved a series of cases through which the Court identified additional 
obiectives under the Act's preclearance provisions. 

The principal case in the judicial evolution of the Voting Rights 
Act was the Court's 1969 decision in Allen v. State Board of Elec­
tions.29 In an opinion by Chief Justice Warren, the Court held that the 
Act's preclearance provisions were applicable not only to new laws 
which might tend to deny blacks their right to register and vote, but 
to "any state enactment which altered the election law of a covered 
state in even a minor way." 30 In Allen, the changes in state laws did 
not relate to the process by which voters were registered and had their 
ballots counted, but to such things as a change from single-member 
districts to at-large voting in the election of county supervisors, chang­
ing of a particular office from elective to appointive, and changes in 
qualification procedures of independent candidates.31 Under the broad 
construction accorded section 5 by the Allen court, covered states must 
preclear all laws which may affect the electoral process in any way. As 
will be noted, the Allen decision effected a substantial transformation 
of the Voting Rights Act.32 The breadth of the scope accorded the Act 
by Allen served as the catalyst for further expansion of Federal con­
trol over electoral changes in covered jurisdictions. 

B. NEW OBJECTIVES 

In the 1971 decision of Perkiw v. Matthews,33 a divided Supreme 
Court held that annexations were subject to preclearance and reiter­
ated its Allen holding that a change to at-large elections was also cov­
ered. The Court further expanded the scope of preclearance require­
ments to include legislative reapportionments in Georgia v. United 
States. 34 All such actions were required to be submitted to the Justice 
Department for approval. 

The far-ranging implications of this expansion were evidenced in 
two important cases which followed. In City of Petersburg v. United 
States,35 the City of Petersburg, Virginia had annexed an area that 
had been under consideration for nearly 5 years. The annexation was 
supported by both black and white citizens and involved an area log­
ically suitable for annexation for tax and other reasons. The effect of 
the annexation, however, was to reduce the black population from 55 

""393 u.s. 544 (1969). 
so Id. at 566. (Emphasis supplied. ) 
'' Id. at 550-52. 
32 In the Allen case, Justice Harlan, dissenting in part, observed: 

... the Co~rt has no"· construed § 5 to require a revolutionary innovation in 
American government that goes far beyond that \Yhich was accomplished by il 4. 
The fo.1rth section of the Act had the proroundly important purpose of permitting 
the Negro people to gain access to the voting booths of the South once and for all. 
But the action taken by Congress in § 4 proceeded on the premise that once Negroes 
had gained free access to the ballot tox, state governments would then be suitably 
responsive to their voice, and federal intervention would not be justified. In moving 
against "tests and devices" in § 4, Congress moved only against those techniques 
that prevented Negroes from voting at all. Congress did not attempt to restructure 
state governments. The Court now reads § 5, however, as vastly increasing the 
sphere of federal intervention beyond that contemplated by § 4, despite the fact that 
the two provisions were designed simply to interlock. 393 U.S. at 585-6. 

" 1 400U.S. 379 (1971) . 
34 411 U.S. 526 (1973). In Georgia, the Court held that _the Attorney General could 

object to a preclearance submission even though he could not determine that a change 
had the purpose or effect of denying or abridging the right to vote. In other words 
it held that the Attorney General co 1ld validly place the burden of proof on the sub­
mitting jurisdiction that a change did not have such a purpose or effect. 

35 354 F.Supp. 1021 (D.D.C. 1973), affirmed per curiam (without opinion) 410 U.S. 
962 (1973) . See n.ote 361nfra. 



14 

percent to 46 percent. When the annexation was submitted for predear­
ance, the District Court held that it was not racially inspired, but 
nevertheless found that the annexation would have the effect of de­
creasing minority voting influence. Because of this the Court ap­
proved the annexation only on condition that Petersburg change to 
ward elections so that blacks would he insured of repre.sentation "rea­
sonably equivalent to their political strength in the enlarged com­
munity." 36 The Court specifically noted that the mere fact that blacks 
made up a smaller percentage of the city after the annexation did not 
amount to a violation of the Act, so long as the court-imposed system 
of ward elections insured blacks of safe districts. Thus, the ideal of pro­
portionality in representation was introduced, although only in the 
context of covered jurisdictions. · 

This precursor to "proportional representation" was followed by 
the Supreme Court's 1975 decision in Oity of RichmO'fl.(/, v. United 
States.37 The annexation in Oity of Richmond reduced the black popu­
lation in Richmond from 52 percent to 42 percent. The Court reversed 
the lower comt's disapproval of Richmond's preclearance application 
and remanded the case for reconsideration in light of its explanation 
that the Oity of Petersburg decision was intended to "afford [blacks] 
representation reasonably equivalent to their political.strength." 38 

T he concept of proportional representation was again involved in 
United Jmvish Organiza.tions v. Oarey,39 which related to the Attorney 
General's rejection of a 1972 legislative redistricting by New York as 
it applied to Brooklyn, a covered jurisdiction under the Act. T he At­
torney General originally ruled that there were an insufficient num­
her of election districts with minority populations large enough for 
minority candidates to likely prevail. The Attorney General indicated 
that a minority population of 65 percent was necessary to create a safe 
minority seat.40 In a new plan adopted in 1974, the Legislature met the 

~'See Oity oj R·ichmon<l v. U-nite<! Stutes, 422 U.S. 338, 370 (1973), wherein the Court, 
through a majority opinion by Justice White, explained its pm· cu·rium affirmance in City 
of Petersoury v. unitect State,, 410 U.S. 962 (.197;:;). 

"' 422 u.s. ;:;[)8 (197[)) . 
"'I d. at ill 0. l<'or further illustrations of the proportional representation principle 

at work, see Zimme·r v. ;lfcJ(eithen, 48[) 1<'.2d 1297 (5th Circuit) ("a court may in its 
discretion opt for a multi-mei.nber plan which enhances the opportunity for participa­
tion in the political processes") ; and Ei1·ksey v. Boa.rtl ot Supen;i•or• of Hinds County, 
l:i28 !<'.2d 536 (l:ith Circuit) (a s ingle member district plan was overturned until two safe 
seats out of fin were created for the county's 40% black population). See also City of 
l'ort Arthtw v. Unite<! States, 517 l•'.Supp. 987 (D.D.C. 1981) infra note uO and accom­
panying text. 

""430 U.S. 144 (1977). Nathan Dershowitz of the American Jewish Congress has de· 
scribed the product of the UJO case as follows: "The Williamsburg section of Brooklyn 
has been tortuously gerrymandered in an attempt to ensure the election of minority group 
members." DerHhowitz, "Tampering with the 'o~ing Rig-hts Act." Congress Monthly, May 
1981, at 9. He describes the result further as " the institutionalization of ethnic 
represen ta tlon." 

' 0 As Professor George C. Cochrnn of the University of Mississippi Law 'School testified: 
In interpreting the definitional parameters of districts which give blacks an 

opportunity to elect the candidate of their own choice, the District Court for the 
District of Columbia is implementing what seems to be 6(} percent voting districts for 
covered jurisdictions; that is, a 65 vercent lenl of minority population in a given 
district is viewed by that court as one which will "give blacks an opportunity to elect 
n candidate of their choice." .. . But the 65 percent rule, which is becoming more 
nnd more common in this section 5 business, is something that had its beginning stage 
In United Jewish Oryl!nizations and is now being carried over Into a proper Inter· 
pretatlon of section 5 as to whether or not a given political subdivision's voting 
scenario has the effect of denying minorities an opportunity to elect a candidate of 
their own choice . . . In thP U.JO case, the 6() percent rule came from a ph one 
call from an unknown staff member at the Votiflg Righte section of the Department of 
.Justice to attorneys representing the State of New York . Senate Hearings, I<'ebruary 2u, 

O;;~itness referred to a case in which the ,Justice Department required that a 70 per­
cent minority district be created before it would agree to preclear a single-member district­
lug plan. Senate Hearings, I<'ebruary 4, 1982, E . Freeman Leverett, attorney, E lberton, Ga. 



15 

objections o£ the Attorney General, but in so doing, divided a com­
munity o£ Hasidic ,Jews which had previously resided .in a single dis­
trict. The Attorney General approved the plan, but members o£ the 
Hasidic community objected claiming that they tlwmselves had been 
the. victims of discrilllination. 

The 8upreme Court rejected their claim. Although unable to agree 
on an opinion, seven members of the Court did agree that New 
York's use of racial criteria in revising the reapportionment pia.n in 
order to obtain the Attorney General's approval under the Voting 
Rights Act did not violate the Fourteenth and Fifteenth Amendment 
rights of the Hasidic Jews. 

The preceding line of cases, all the progeny of Allen v. State Board 
of Elections,41 constituted a major judicial expansion o£ the Act's 
original focus upon facilitating registration and securing the ballot!2 

As Professor Thernstrom has written: 
The traditional concern of civil rights advocates had been 

access to the ballot ... [These expansions] assume a Federally 
guaranteed right to maximum political effectiveness. Nowa­
days local electoral arrangements are expected to conform to 
Federal executive and judicial guidelines established to maxi­
mize the political strength of racial and ethnic minorities, 
not merely to provide equal electoral opporttmityY 

More recent expansion of section 5 occurred in two 1978 decisions. 
In United States Y. Boa.rd of Oomrnissioners of Sheffield ,44 the Court 
held that section 5 applied to political subdivisions within a covered 
jurisdiction which have any influence over any aspect of the electoral 
process, whether or not they conduct voter registration.45 Sheffield was 
required to pre-clear its electoral change from a commissioner to a 
mayor-council form of government. Sheffield reaffirmed the drift away 
from the original focus of the Voting Rights Act of equal access to 
the registration and voting process to focus upon the electoral procesS 
itself. ln Dougherty County Board of Edttcation Y. White,46 the Comt 
held that a school board rule requiring all employees to take unpaid 
leaves of absence while campaigning for elective office was subject to 
precle,arance under section 5. Thus, the Comt held that the Voting 
Rights Act reached changes made by political subdivisions that neither 
conducted voter registration nor even conducted elections. 

C. SECTIOK iJ Y. SECTIOK :! 

The transformation which had taken place in section i5 was con­
firmed by the Court in Oity of Rorne v. United States,41 wherein the 

"393 u.s. 544 (1969) . 
"Bee1· v. United States, 425 U.S. 130 (1976) involved the rejection by the Attorney 

General and DiHtrict Court of a reapportionment plan submitted by the city of New 
Orleans, because the plan woul<l not have produced black representation on the city 
council proportional to black population in the city. The Supreme Court reversed, holding 
thar. sectiou 0 prohibitg only those voting cha11ge:s which rPNnlt in ''retro·gression in the 
po"ition of racial minorities with respect to their effective exercise of the electoral 
franchise." Id. at 141. 

"' Thernstrom, "The Odd Evolution of the Voting Rights Act," GG The Public Interest 
.19, GO (1979). See generally this article for a discussion of the judicial evolution of the 
\'oting Rights Act . 

.. 435 u.s. 110 (1978). 
•" Compare Section 14(c) (2) of the act, which provides: 

The term "political subdivision" shall mean any connty or parish, except that 
where registration for voting is not conducted under the supervision of a county or 
parish, the term shall include any other subdivision of a State which conducts 
registration for voting. 

••4·39 u.s. 32 (1978). 
"446 U.S. H>6 (1980). 



16 

Court held that although electoral changes in Rome, Georgia, were 
enacted without discriminatory purpose, they were nevertheless pro­
hibited under section 5 of the Act because of their discriminatory 
effect. Thus, the Court affirmed that the standard of conduct in cov­
ered jurisdictions seeking preclearance pursuant to section 5 may be 
measured exclusively by the effects of a change.48 The evolution of 
section 5 was fundamentally complete-having been largely trans­
formed from u, provision focused upon access to registration and the 
ballot to one focused upon the electoral process itself. In the narrow 
context of section 5, the "effects" test was constitutional.49 

A recent and telling application of the "effects" standard by the 
District of Columbia District Court can be found in Oity of Port 
Arthur v. United States,50 an annexation case in which the court 
stated: 

The conclusion reached by this Court is that none of the 
electoral systems proposed by plaintiff Port Arthur affords 
the black citizens of the City the requisite opportunity to 
achieve representation commensurate with their voting 
strength in the enlarged community. Blacks comprise 40.56 
percent of the total post-expansion population, and we esti­
mate that they constitute 35 percent of the voting-age popu­
lation. [None of the proposed schemes] offer the black com­
munity a reasonable possibility of obtaining representation 
which would reflect political power of that magnitude. 51 

This transformation from a focus upon access to the ballot to a focus 
upon the electoral process itself, and proporti_onal representation for 
covered jurisdictions under section 5 would also have occurred in 
the context of section 2 but for the case of Oity of Mobile v. Bolden. 5 2 

In Mobile, however, the Court reaffirmed original understandings of 
section 2 and the Fifteenth Amendment. Mobile involved a class ac­
tion on behalf of all black citizens of the Alabama city wherein plain­
tiffs alleged that the city's practice of electing commissioners through 
an at-large system unfairly "diluted" minority voting strength in vio­
lation of the Fourteenth and Fifteenth Amendments. The district 
court, 53 although finding that blacks in the city registered and voted 
without hinderance, nonetheless agreed with plaintiffs and held that 
Mobile's at-large elections operated unlawfully with respect to blacks. 
The Fifth Circuit affirmed,54 but on appeal, the Supreme Court re­
versed and remanded. The plurality opinion stated: 

The Fifteenth Amendment does not entail the right to have 
Negro candidates elected ... That Amendment prohibits only 
purposefully discriminatory denial or abridgement by gov-

' 8 Id. See generally, McClellan, "Fiddling -with the Constitution While Rome Burns: The 
Case Against the Voting Rights Act of 1965," 42 La. Law Rev. 1 (1981); Keady & Cochran, 
"Section 5 of the. Voting ·Rights Act: A: Time for Re1•ision," 69 Kentucky Law .T. 4 (1980). 

' 0 The Court relied on. · South Carolina Y. Katzen1wch and recalled the determinations by 
Congress which undergirded the preclearance requirement. As with that case, Rome' s up­
holding of the. constitutionality of the "effects" test in Section 5 was a highly limited one 
in this regard. Id. at 174. 

50 517 F .Supp. 987 (D.D.C. 1981) . 
5' I d. at 1014, 1015. 
'"446 u.s. ()5 (1980). 
'•1 423 F .Supp. 384 (S.D. Ala. 1976) . 
"'571 F .2d 238 (5th Cir. 1978). 



17 

ernment of the freedom to vote "on account of race, color, or 
previous condition of servitude." Having found that Negroes 
in Mobile "register and vote without hinderance," the District 
Court and Court of Appeals were in error in believing that 
the appellant invaded the protection of that Amendment 
in the present case. 55 

Thus, the Court reaffirmed that purposeful discrimination is required 
for the Fifteenth Amendment to be violated and that, since section 
2 of the Act was a codification of that Amendment, the "intent" test 
applied in all actions under that section. 56 

The proponents of the House amendment to section 2 would over­
turn the Court's decision in the Mobile case by eliminating the re­
quirement of proof of intentional discrimination and simply require 
proof of discriminatory "results." The change would facilitate a 
transformation of section 2 from its original focus to new and dis­
turbing objectives of proportionality in representation. 

In summary, the subcommittee believes that section 5 of the Voting 
Rights Act of 1965 has undergone a significant judicial evolution. The 
original purpose was to pl'ovide racial minorities with access to the 
ballot . .In the intervening years, the focus has changed to the entire 
electoral process. As Professor Erler testified : 

In more recent years ... emphasis has shifted from the 
issue of equal access to the ballot for racial minorities to the 
issue of equal results. The issue is no longer typically con­
ceived of in terms of "the right to vote," but in terms of 
"the right to an effective vote"; no longer in terms of "disfran­
chisement" but in terms of "dilution." The old assumption 
that equal access to the ballot would ineluctably lead to 
political power for minorities has given way to the proposi­
tion that the political process must produce something more 
than equal access. The new demand is that the political 
process, regardless of equal access, must be made to yield 
equal results. 57 

The proposal to change section 2 seeks to begin this same process 
for that section. Indeed, proponents of the House amendment rarely 
speak of "the right to vote" any more. Instead, such phrases as "equal 
political participation," "equal opportunity in the political process," 
"the fair right to vote," and "meaningful participation" are used.58 

This subcommittee views with concern any proposal to institute such 
a new focus in section 2 and to bring to this section concepts of pro­
portional representrution that have been developed in other sections 
on limited constitutiona:l grounds. 

'"' 446 U.S . at 6ii. 
"'' ld. at 60-61. Justice Stewart noted : "It is apparent that the language of § 2 no more 

than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history 
makes clear that it was intended to han an effect no different from that of the Fifteenth 
Amendment itself.'' 'rhere was no avpareut dh;agi:eement with this finding from any other 
member of the Court. 

" Senate Hearings, .Tmuary 28. 1982. Edward Erler, Professor , National Humanities 
Center. The hearings were unpublished at the time of this report and available only in 
transcript form. 

58 See e.g. Senate Hearings. February 12. 1982, Drew Days, Professor, Yale School of 
Law; January 28. 19~2. Laug-hlin ~IcDonald, Director, Southern Regional Office, American 
Ciril Liberties Union. See also H .R. Rep, No. 97- 227, 31 (1981) . 



. 18 

V. AcTION BY HousE oF REPRESENTATIVES 

During the Senate hearings, great emphasis has been placed on the 
substantial vote in the House of Representatives in support of final 
passage of H.R. 3112, the House-version of the Voting Rights Act. 
extension. As S.enator Metzenbaum remarked on the opening day of 
hearings: 

I have difficulty understanding why the Administration is 
not on the side of the overwhelming majority of the House ... 
Why in view of the fact that all of the civil rights groups 
now are on the side of the 389 members of the House? 59 

Final passage in the House of Representatives of H.R. 3112 was 
achieved on October 5, 1981 by a vote of 389-24 with substantial ma­
jorities of both parties in support of such passage. 

It is only because of the continued emphasis upon the House action 
that this subcommittee believes that brief mention ought to be made 
of the circumstances of such action. ·while such scrutiny may not be 
a common part of Senate consideration, neither is the reeurrent argu­
ment that the magnitude of the House vote somehow casts doubt upon 
the merits of the arguments of Senators who are in opposition to the 
House position. 

H.R. 3112, as approved by the House · of Representatives, would 
amend section 2 of the Voting Rights Act to establish a "results" test 
for identifying voting discrimination in place of the present "intent" 
standard. In addition, it would make permanent the pre-clearance pro­
visions of section 5 for those jurisdictions subject to coverage under 
the coverage formula in section 4. It would, however, create a new and 
complex bail-out procedure for such jurisdictions which would become 
effective in 1984. 

What this subcommittee finds particularly noteworthy in the legis­
lative history of H.R. 3112 in the House is the virtually total lack of 
opportunity for individuals opposed to these changes in the law to 
testify before the House Judiciary Committee. On an issue of the 
magnitude of the . Voting Rights Act, with the highly controversial 
changes proposed by the House measure, it is remarkable that so little 
opportunity to participate was afforded those individuals who ques­
tioned the House amendments. 

During the 18 days of hearings that took place in the House on the 
extension of the Voting Rights Act, the Judiciary Committee heard 
156 witnesses testify on this issue. Of these, only 13 expressed any 
reservations about the House measure and some of these were of a 
relatively trivial nature. It is the view of this subcommittee that 
such a gross imbalance on a measure of this importance cannot be at­
tributed solely to an inrubility to identify individuals who possessed 
concerns about the House bill. There has been no shortage of interested 
individuals who have testified from this perspective during the Senate 
hearings. 

Of the small handful of witnesses who did testify in tl:e House 
with reservations about H .R. 3112, it is interesting to note the remarks 

59 Senate Hearings, January 27, 1982, U.S. Senator Howard :Metzenbaum. 



19 

of Mr. Colom, a black attorney from Mississippi. In response to a 
question from Representative Hyde asking whether or not he had 
been subject to pressure not to testify, he observed: 

It stopped being pressure and started being intimidation 
at some point. Apparently someone called most of my col­
leagues in Mississippi and I found my friends, my black 
friends in the Republican Party, calling me up asking if I 
was coining up here to testify against the Voting Rights Act 
... my father who's co-chairman o£ the Democratic Party 
in one county said that he had never heard such vicious things 
about his son. 60 

Similar allegations have been made about other potential witnesses 
who might have opposed the House bill.61 

What is perhaps most remarkable about the House legislative proc­
ess on H.R. 3112 is that not one of the 156 witnesses who testified ex­
pressed any substantial difficulties with the proposed amendment to 
section 2 of the Voting Rights Act. Indeed, but a single day of the 18 
days of hearings was even devoted to this issue with all three witnesses 
testifying on that date indicating full support for the proposed 
amendment.62 

.. Given (1) the attention devoted to this issue during 
the Senate hearings; (2) the agreement by both sides of the impor­
tance of the issue; 63 (3) the primary concern for this issue by the ad­
ministration; and ( 4) the obvious importance of the section 2 change 
for civil rights law generally, it is surprising that the House amend­
ment to section 2 could have been given such slight attention during 
18 days of House hearings. 

Serious concern about the character of House debate was later ex­
pressed before the subcommittee by members of the House itself. As 
Representative Butler observed in testimony before the subcommittee: 

The most significant change approved by the House [sec­
tion 2] went through largely unnoticed ... while the impor­
tance and potential impact of this basic change cannot be 
underestimated, the failure of the House to consider it care­
fully cannot be overstated. 64 

As Representative Hyde, a leading proponent of extension of the 
Voting Rights Act, also observed before this subcommittee: 

The Voting Rights Act is a very complex piece of legisla­
tion which has been merchandised in extraordinarily complex 
terms. By the time it reached the floor, suggestions that alter­
nate views should be considered were quickly met with harsh 
charges that any deviation whatsoever from what was pushed 
through the full J u<liciary Committee merely reflected "code 

6' H earings on Extension of the Voting Rights Act by the House Judiciary Subcommit­
t ee on Constitutional and Civil Rights (Hereinafter "House Hearings" ), June 25, 1981, 
Wilbur Colom, Esq. , Part III, at 2102- 03 . 

6' See, e.g ., •Sena te Hearings , ;January 28, 1982, U. S. Representative Henry Hyde ; Bunzel, 
"Voting Ri p;ht" Hardball" Wall St. J o ~ rnal , March 19, 1982; Brimelow, "Uncivil Act" 
Ba rron' s. J a nua ry 25 , 1982. 

6' House Hearings, June 24, 1981. Testifying in support of the amendment to Section 2 
were J a mes Blacksher, David Walbert, a nd Arma nd Derfner, Part III, at 2029-65. 

"'An exa mple of a witness fa voring t he House a mendments to Section 2 who neverthe­
less recognized the importance of the pro.posed cha nge is Vilma Martinez, Executive Di· 
rector . Mexica n-America n Legal Defense nnd Education Fund, January 27 , 1!!82. 

"'Senate Hearings, February 1, 1982, U. S. Repr•,sentative M. ·Caldwell Butler. 

91 - 862 0 - 82 - 4 



20 

. words for not extending the Act." This intimidating style of 
lobbying had the ironic effect, although clearly intended, of 
limiting serious debate and creating a wave of apprehension 
among those who might have sincerely questioned some of 
the bill's language. No one wishes to be the target of racist 
characterizations and the final House yote reflected more of 
an overwhelming statement of support for the principle rep­
resented by the Act than it did concurrence with each and 
every sentence or concept it contains.65 

Given the environment of the Honse consideration of H.R. 3112, 
this subcommittee is not persuaded that special deference ought to be 
accorded the outcome of that consideration. This subcommittee has 
endeavored to provide a fair opportunity for all responsible views to 
be heard. It is the obligation of the United States Senate, the "world's 
most deliberative legislative body" to see that a different environment 
of debate occurs within its own chambers. 

VI. SEcTrox 2 OJ<' THE AcT 

Section 2 of the Voting Rights Act is a codification of the Fifteenth 
.Am.endment and, like that amendment, forbids discrimination · with 
respect to voting rights. Section 2 states : 

No Yoting qnalifica.tions or prerequisites to voting, or 
standard, practice, or procedure shall be imposed or applied 
by any Staite or political subdivision to deny or abridge the 
right to vote on •a.ccount o£ race or color. 

Section 2 is a permanent provision of the Voting Rights Act and 
does not expire this year, or any year. It applies to both changes in 
Yoting laws and procedures, as well as existing l•aws and procedures, 
and it applies in both covered jurisdictions and non-covered jurisdic­
tions.66 For the past seventeen years, section 2 has stood as a basic and 
non-controversial provision to ensure that any discriminatory voting 
law or procedun• could be successfully challenged and voided. 

A. lKTEKT V, RESULTS 

Given the success of the Voting Rights Act and the fact that 
section 2 is a permanent provision of the law, what is the present 
controversy concerning section 2? The current issue concerning sec­
tion 2 is the question of what must be shown in order to establish 
a violation of the section. In other words, the fundamental issue is 
the one of how civil r ights violations will be identified. Inherent in this 
issue are the very definitions of "civil rights" and "discrimination." 67 

The Supreme Court addressed this critical issue in City of Mobile v. 
Bolden. 88 In this decision, the Court held that section 2 was intended 

oo Senate Hear ings, January 28. 1982, U.S. Representative Henry Hyde. 
oo In covered jurisdictions under section 5, i t is necessary to preclear only changes in 

voting qualifications. prerequisites to voting, or standards, practices, or procedures with 
respect to voting llif/erent from t hose in effect in the jurisdictions on the dates in which 
the trigger formulas were applicable. 

"'On the centrality of in tent analysis to civil rights law generally, see Senate Hearings, 
February 2. 19&2, Michael Levin, Professor, City College of Xew York. 

os H6 U.S. 5G (19&0). 



21 

to codify the Fifteenth Amendment 69 and then held that a claim under 
the Amendment required proof that the voting law or procedure in 
questio11 . must .h.ave been established or maintained 70 because o£ a 
discriminatory'"intent or purpose. As the Court observed: 

·while other o£ the Court's Fifteenth Amendment decisions 
have dealt with rliffe.rent issues, none has questioned the 
necessity o£ showing purposeful discrimination in order to 
show a Fifteenth Amendment violation.71 

It :follows then that proof o£ a claim under section 2 entails the 
requirement o£ showing discriminatory intent or purpose. 

The Court's equation o£ section 2 with the F ifteenth Amendment 
was based on a review and analysis o£ legislative history: 

Section 2 was an uncontroversia.l provision in the Voting 
Rights Act whose other provisions engendered protraoted 
dispute. The House report on the bill simply recited that 
section 2 "grants a right to be :free £rom enactment or ~n­
:forcement o£ voting qualifications or practices which deny or 
abridge the right to vote on account o£ race or color." H.R. 
Report No. 89-439 at 23 ( 1965) ; S. Report No. 89-162, part 3., 
at 19-20 ( 1965). The view that this section simply restated the 
prohibitions already contained in the Fifteenth Amendment 
was expressed without contradiction during the Senate hear:­
ings. Senator Dirksen indicated at one point that all States, 
whether or not covered by the preclearance provisions o£ 
section 5 o£ the proposed legislation were prohibited :from 
discriminating against Negro voters by section 2 which he 
termed "·almost a rephrasing of the Fifteenth Amendment." 
Attorney General Katzenbach agreed. Senate Hearings, part 
1, at 208 (1965).72 

Until the present debate, there has been virtually no disagree­
ment with the proposition that section 2 has always been intended to 
codify the Fifteenth Amendment. 

Controversy. concerning the Mobile decision, and the intent test 
required under Mobile, stems :from the contentions that the decision 
was contrary to the original intention o£ Congress, 73 contrary to prior 
law,74 and establishes a test :for identifying discrimination which is 
difficult, i£ not impossible, to satis:fy.75 Since these arguments serve 

0" There was no disagreement on this point nmong the Justices. In addition, the Carter 
.-\<!ministration Justice Department, in filing its brief for np.pellees in JJlobile, described Sec­
tion 2 as a "rearticulation" of the Fifteenth Amenrlment. Brief of the United Stutes as 
Amicus Curiae at 84, City of Mobile Y. Holden, 446 U.S. G5 (1980). 

'":\Inch of the confusion regarding the intent controversy has, in part, been due to the 
failure by some to acknowledge that a discriminatory purpose mnr also be proven by a 
showing that a. la-w has been "maintained" or "operated" for such a purpose, not simply 
that it was origillllllJ" enacted for this purpose. See, e g., Whitcomb v. Cl.nvis, 403 U.S. 124 
H!l (1979); White v. Regester, 412 U.S. 7()(), 769 (1973). 

a 446 U.S. at 63. 
70 lei. at 61. 
"l See e.<z .. Senate Hearings. February 4, 1982; U.S. Representative .Tames Sensenbrenner ; 

February 11, 1982, Frank Parker, Director, Voting Rights Project, Lawyers Committee 
for Civil Rights Under Law. 

" See e g., Senate Hearings, February 1, 1982. David Walbert, attorney nnd former Pro­
fessor Emory rniYersity School of Law; Februnry 25. 1982, Archibnld Cox, Professor, 
Harvn'rd Uni"\rer~itY Law 'school. rE>presenting Common Cause. 

'"See e.g., Senate Hearings, January 28, 1982, Laughlin i)fcDonald, Director, Southern 
Regional Office, Americiw Ch·i! Liberties Union; February 4, 1982, U.S. Representative 
James Senseu brenner. 



22 

as the foundation for the case that jlf obile ought to be overturned, they 
merit careful consideration. 
Congressional intent 

The first argument raised by proponents of a results test in section ' 
2 in place of the existing intent test, is that such a test would be more 
consistent with the original intention of the Voting Rights Act. 76 This 
subcommittee .strongly rejects this contention and believes that the 
Supreme Court properly interpreted the original intent of Congress 
with respect to section 2. The subcommittee notes, for example, that 
Congress chose specifically to use the concept of a results or effects 
test in other parts of the Act. In sections 4 and 5 of the Act, Congress 
established an explicit although highly limited use of this test. The 
iact that such language was omitted from section 2 is conspicuous and 
telling. If Congress had intended to use a results or effects test in 
section 2, they had already demonstrated that they were quite ca­
pable of drafting such a provision. Congress chose pointedly not to 
do this. 

The unusual standard in sections 4 and 5 was a clear function of 
the extraordinary objectives of those sections. 77 In those provisions, 
Congress was addressing selected regions of the country with respect 
to which there had. been identified histories of discrimination and 
histories of efforts to circumvent Federal anti-discrimination initia­
tives. It was only as a result of these findings that Congress -..vas even 
constitutionally empowered to enact these sections.78 Specifically, it 
was a function of the fact that the provisions in sections 4 and 5 were 
designed to be remedial and temporary in nature that the Court sus­
tained their constitutional validity.79 

Great emphasis has been placed upon a single remark of Attorney 
General Katzenbach during the course of Senate hearings to evidence 
that an effects test was originally intended by Congress in section 2. 
The Attorney General, according to the argument, made clear that a 
section 2 violation could 'be established "if [an action's] purpose or 
effect" was to deny or abridge the right to vote.80 Quite apart from the 
fact that a single chance remark by an individual does not constitute a 
conclusive legislative history, the Katzenbach statement can be used 
with equal strength by proponents of maintaining the present intent 
test. In response to a question by Senator Fong about whether or not 
restricted registration hours by a jurisdiction would be the kind of 
"procedure" encompassed by section 2 that would permit a suit, the 
Attorney General responded, "I would suppose that you could if it 

'"See e.g., Senate Hea·dngs, February 1, 1982. Steven Suitts, Executive Director, South­
ern Regional Council. 

''South Carolina v. Katzenbach, 383 U.S. 301 (1966) . The · Court noted at 334, "The 
.\ct suspends new voting regulations pending scrutiny by federal authorities to determine 
whether their use would violate the Fifteenth Amendment. This power may have been an 
uncommon exercise of congressional power, as South Carolina contends, but the Court 
has reco ;nized that exceptional conditions can justify legislative measures not otherwise 
appropriate." 

"See supra note 77. See also, City oj Rome Y. United States, 446 U.S. li:i6 (1980) in 
which it was again -noted "that Congress had the authority to regulate state and local 
Yoting through the provisions of the Voting Rights Act," 179-180, and that the 197G 
extension, "was ·plainly a constitutional method of enforcing the Fifteenth Amendment," 
Id. at 182. 

79 Id. 
so Senate Hearings, February 12, 19-82, discussion between U.S. Senator Charles Mathias 

and Drew Days, Professor, Yale School of Law, regarding Attorney General Katzenbach's 
testimony in the 1965 Hearings about the original Intent of the Voting Rights Act. 



23 

ha.d that purpose." 81 He subsequently proceeded to make another 
statement alluding to both purpose and effect in a context suggesting 
confusion between section 2 and section 5. The Attorney General's 
statement is a wholly isolated remark in the midst of thousands of 
pages of hearings and floor debate; to the extent that it is treated as 
dispositive of the iss\1e, it can equally be relied upon by either side.82 

The subcommittee considers the fact that Congress chose not to uti­
lize lan/!nage in section 2 that it expressly nsed in sections4 and 5 (i.e., 
"effects') to be far more persuasive of original congressional intent, 
as well as the fact that the con<:ept of an effects standard was discussed 
thoroughly in the context of sections 4 and 5 but not at all in the 
context of section 2. i 

Prior law 
In response to the second argument of proponents of the results test 

that Jf obile effected a significant change in prior Jaw, the subcommit­
tee would note again the remarks of the Supreme Court in Mobile: 

None of the Court's Fif<toonth Amendment decisions has 
questioned the necessity of showing purposeful discrimination 
in order to show a Fifteenth Amendment violation.83 

There is absolutely no Court decision that results proponents can 
point to that holds that proof of discriminatory purpose or intent is 
not required either in establishing a Fifteenth Amendment violation 
or a section 2 violation. 

In this regard, proponents rely almost exclusively on a 1973 Su­
preme Court decision, White v. R egester.84 In that case, the Court up­
held a challenge to an at-large voting system for members of the Texas 
House of Representatives in several Texas counties. 

White is a rather tenuous foundation :for the far-reaching changes 
presently being proposed in section 2 for a number of reasons: First, 
White was neither a Fifteenth Amendment nor a section 2 case; it was 

a Fourteenth Amendment case. It is strange that proponents should 
rely upon it to suggest that theM obile interpretation of the Fifteenth 
. \.mendment was mistaken. Second, if that is not enough to discredit 
the authority of White ·with respect to the ilfobiJe issue, it should be 
notc:>d that nowhere in lVhite did the Court even use the term "results". 
If that is the case, it is difficult to undc:>rstand how the term "results'' 
in section 2 is expected to trigger the application of the White case. 
Third, even as a Fourteenth Amendment decision, the White case 
involved a requirement of intentional or purposeful discrimination. 

As the Court in jlfobil.e observed about the argument that White 
represented a different test for discrimination: 

st l 96u Senate hearings. ~icholns DeB. Katzen bach, Attorney General of the United 
States, March 2G, 1965, at 191-2. . 

8' See supra note 81. See also 196;> Senate Hearings at 208 in which Attorney General 
Katzenbach agreed with Senator Dirksen In his assessment of Section 2 as "almost a re­
phrasing of the 15th Amendment." It is also worth noting that Katzenbach was discussing 
the Act in terms of its original objectives-equal access to registration and the ballot. 
The judicial evolution that later occurred. see su~•ra Section III, clearly transformed the 
Act into one focu;;ed npon the electoral process itself. Katzenbach did not allude to such 
Issues as annexations, election systems, dlstricting and apportionment issues, and the like. 
He could not have foreseen t he marked metamorphosis of t he Voting Rights Act in his 196i> 
testimony . 

.. , 446 U.S. at 63 . 

.. 412 u.s. 7;)5 (1973). 



24 

In White, the Court relied upon evidence in the record that 
included a long history of official discrimination against mi­
norities as well as indifference to their needs and interests on 
the part of white election officials ... White v. Regester is thus 
consistent with the basic equal protection principle that the 
invidious quality of a law claimed to be racially discrimin:t­
tory must ultimately be traced to a racially discriminatory 
purpose.85 

Finally, and perhaps even more compelling, is that Justice "White 
who dissented in jJ£ obile and who wrote the White opinion agreed that 
it was consistent with the intent or purpose requirement . • T ustice ·white 
llisagreed with the Court's opinion because he believed that the plain­
tiffs had satisfied the intent or purpose standard in jVJ obile, not because 
he disagreed with the standard itself. He observed in dissent: 

The Court's decision cannot be understood to flow from 
our recognition in W d.8hington v. Davis that the Equal Pro­
tection Clause forbids only purposeful discrimination . . . 
Even though Mobile's Negro community may register and 
vote without hindrance, the system of at-large election of 
City Commissioners may violate the Fourteenth and Fif­
teenth Amendments if it is used purposefully to exclude 
Negroes from the political process ... Because I believe that 
the findings of the District Court amply support an inference 
of purposeful discrimination in violation of the Fourteenth 
and Fifteenth Amendments, I respectfully dissent.86 

Again, it is important to emphasize that even in dissent, Justice 
White, the author of the White opinion, agreed with the Court that 
the case was consistent with the intent or purpose requirement. 

The subcommittee would add that, if the results test is nothing 
more than the standard set down by the Court in White v. Regester, 
it is unclear why it is necessary to ch~nge the present law since Mobile 
did not overrule White or any earlier Court decision. If the results 
test is consistent with White, then it should continue to be consistent 
even after Mobile. Both White and Mobile are in eifect today. 

If, despite all, proponents of the results test persist in their view 
that jJ£ obile altered the White law, then, at the very least, it is in-

SG 446 U.'S. at 69. See also Graves v. Barnes, 343 F.Supp. 704 (W.D. Tex. 1972) which dis­
cusses at some length the voting rights backgrotmd in Vallas and Bexar counties (Texas) 
that was before the Court in White v. Regester. Graves wns affirmed by the Supteme Court 
in White Y. Regester. There can be little doubt thnt there wns substantial discriminatory 
purpose at work in these counties on the ·basis of the District Cour:ts findings in Graves. 
It is also interesting to note that in Gaf!ne11 , .. Cummings, 412 U.S. 735 (1973), decided on 
the same day as White, the Court pointed out at 754 that multimember districts might be 
vulnerable "if racial or political groups have b"~n fenced out of the political process and 
their voting strength invirliously minimized." (Emphasis supplied.) 

""446 U.S. at 102. (Justice White dissenting) The primary di1ference between Justice 
\\' bite's finding a nd that of Justice Stewart lay in the fnct that .Justice White found that 
the facts gave rise to an inferen ce of discriminatory purpose, while Justice Steward did 
not. They did not disagree on the proper standard of proof itself-the intent standard. 

Proponents of the results test are not only in conflict with the Court itself on the mean­
ing of White but the:v are in conflict with severa} lower courts upon which they would 
like to rely for a definition of the results test. Proponents often rely upon a test articulated 
in .the Fifth Circnit lit Zimmer v. McKeithen, 485 F.2d 1297 (1973), y~t at the same time 
are explicit in rejecting one of the major factors involved in this test: "responsiveness of 
elected officials to minority community" which the House Report rejects as too "highly 
subjective". H.R. Rep. No. 97--227 at 30. 



25 

cumbent upon them to demonstrate what precisely the White law was. 
It is not enough to suggest that we ought to rely for guidance upon. a 
law that was interpreted by a ch•ar majorjty of the Court in a. totally 

·· contrary manner to the manner in which resnlts proponents " 'ould 
like to interpret it. Until such proponents can explain the results test, 
this subcommittee can conclude nothing else than that adoption of the 
test will lead into totally uncharted judicial waters. · 

The history of Supreme Court decision::; is totally .consistent on the 
foundational requirement that constitutional civil rights violations 
require proof of discriminatory intent or purpose. However, the Court 
has sometimes been less than explicit on this point only because it was 
not until the growth of "affirmative action" concepts of civil rights in 
the late 1960's and early 1970's that anyone believed that "discrimin.a­
tion" meant anything, other than wrongful treatment of an individual 
because of race or color. It has only been with the development of "af­
firmative action" that anyone has relied upon statistical and results­
oriented evidence to conclusively satisfy constitutional and statutory 
civil rights provisions. In any event, there is absolutely no Court de­
cision before or after ill obile in which anything less than purpose has 
been required to establish a violation of section 2, the FHteenth -
Amendment, or any other Reconstruction amendment. 87 

Intent standard 
The final criticism of the j}f obile decision is that it establishes a 

requirement for identifying discrimination that is "impossible" or 
"extremely difficult" to satisfy.88 .This criticism greatly overstates the 
degree of difficulty of this test as well as the uniqueness of the test. 

First, the subcommittee would observe that the intent or purpose 
standard has never proven. "impossible" in a variety of other legal 
contexts. In the criminal law, for example, not only is there normally 
an intent requirement but such a state of mind must be proven "beyond 
a reasonable doubt". In the context of civil rights violations, it is only 
necessary that an inference of intent be raised "by a preponderance of 
the evidence", a vastly less stringent requirement. 

In addition, the intent standard has traditionally been the stand­
ard for evidencing discrimination not only in the context of the Fif­
teenth Amendm0nt, but also in the context of the Equal Protection 
Clause of the Fourteenth Amendment, the Thirteenth Amendment, 
and school busing cases. In Washington v. Davis, for example, the 
Supreme Court observed (in an opinion written by Justice White): 

The central purpose of the Equal Protection Clause of the 
Fourteenth Amendment is the prevention of official conduct 
discriminating on the basis of race ... our cases have not 
embraced the proposition that a law or other official act, 
without regard to whether it reflects a racially discriminatory 
purpose, is unconstitutional solely becfluse it has a racially 
disproportionate impact ... a law establishing a racially neu­
tral qualification is not racially discriminatory and does not 

87 446 U.S. at 63. 
as See supra note 75. 



26 

deny equal protection of the laws simply because a greater 
proportion of Negroes fail to qualify than members of other 
racial or ethnic groups.89 

In a subsequent decision, the Court reaffirmed this standard (a 
standard which has never been contradicted in any decision of the 
Court under the civil rights amendments to the Constitution). In 
Arlington Heights v.1J:letropolitan H<ntsing Atttho1'ity, it observed: 

Proof of racially discriminatory intent ir; required to show 
a violation of the Equal Protection Clause ... the holding in 
Davis reaffirmed a principle well established in a variety of 
contexts e.g. Keyes Y. School Dilst1'tct 1Yo. 1 413 U.S. 189, 208 
(schools); Wright v. Rockefeller 376 U.S. 52, 56- 7 (election 
districting); Akins v. Texas 325 U.S. 398,403-04 (jury selec­
tion) .... The finding that a decision carried a discriminatory 
"ultimate effece' is without independent constitutional sig-
nificance. uo · 

Still more recently, the Court again reviewed the meaning and pur­
poses of the Fourteenth Amendment and the Equal Protection Clause 
in Personnel _,tdnvtni.Yt?'ator of Llfassachttsetts Y. Feen('1J.n. In that de-
cision, the Court stated : · 

Even if a neutral law has a disproportionately adverse ef­
fect upon a racial minority, it is unconstitutional under the 
Equal Protection Clause only if that impact can be traced to a 
discriminatory purpose ... the settled rule is that the Four­
teenth Amendment requirer; equal ]a"·s not equal resultr; .. . 9~ 

The Court has also stated expressly that the intent standard is the 
appropriate standard for identifying discrirnination in the area of 
school seg1·egation. In Keyes v. School D-istrict No.1, the Court noted: 

' be jure segregation requires a current condition of segrega­
tion resulting from intentional State action ... the differen­
tiating factor between de jure and so-called de facto segrega­
t,ion ... is purpose or intent to discrimination.03 

"'426 U.S. 229, 239, 245 (1976). A footnote in Washington disapproving seYeral lower 
court decisions did not Include any voting cases . _I d. at note 12. '.rhe requirement of discrimi­
natory purpose far antedated Washington\'. Da·vis, however. See, e.g., Yick Wo v. HO!Jkins, 
118 U.S. au6 (18S6) (''Though the IRw itself be fnir on its face and impartial in appearance, 
yet if it is npplied and administered by public authority w.ith an evil eye and an unequal 
hnnd so as practicably to ·make unjust and· ·llleg·al · discrimination between persons •in 
"imilar circum~tances . . . the_ denial of ecp~al . i.u"tice is still within the prohibition of 
the Constitution. " ); Snowden 1·. Hughes 321 u:s. (1944) C"l.'he unlawful administration 
!Jy state officers· of a state .statute fair on it~ face resultl1tg . iu its unequal application to 
those who are entitled to be treated alike Is not a denial of equal protection unless there is 
shown to ·be !>resent in it an element of intentional or purpoxeftil discrimination.' .. ) The 
requiremeut of intent or purpose as l!- . fundamental element of ciyil rights law is as old 
as the development of such l!tw itself. · · · 

oo Village of .4.rHngton Heights v. JI.etropoUt(tn Hous-i'llf/ Development Authol'i ty, 429 U.S. 
2i:i2 26i:i 271 (1977) . See a l ~o Memphis v. Green, 4()1 U.S. 100 (interpreting§ 1981 of 'l'itle 
42.' a codification of the Thirteenth Amendment, to require purposeful discrimination.) 

91442 u.s. 256 (1979). . . . . 
o-J 442 u.s. at 272, 273. The Feeney case is also important m elaboratmg upon the 1dea 

of "discriminatory purpose." As U:e Court obser\'Cd: . . . . 
"Discriminatory purpose" lJU}Jlies more than llltf:\nt as Yohhon or Intent as aware­

ness of consequences ... It implies that the decision-maker selected or reaffirmed 11 
particular conrse of action nt 1ea~t in nart "because of" not Inerely "in spite of" its 
·adverse consequences unon an Identifiable group. 

See also 442 U.S. at 279, note 25 in which the Court rejects the notion of intent 
or purpose being synonymous with the notion of the foreseeability of the disparate Impact 
of an action, while at the same time recognizing this factor as simple evidenc.e which may 
hnve a relevant bearing on the issue; Senate Hearings, February 2, 1982, i\hchael Levin, 
Professor. ·City College of New York. 

""413 u.s. 189, 20i:i, 211, 213 (1973). 



27 

In addition to the fact that intent or purpose is not an extraordinary 
test for discrimination, and the fact that it is proven every day of the 
week in thousands of courtrooms around the country in both crimi­
nal and civil litigation, it must also be observed that it has not 
proven an "impossible" test in the context of seYeral major voting 
rights decisions that have been handed down under section 2 and the 
FLI'teenth Amendment since the Mobile decision. In the recent ca,ses of 
i lf cMillia.n v. Escarnbia County 94 and Lodge v. Brum-ton,95 the Fifth 
Circuit found no insurmountable difficulties in identifying voting 
discrimination under the intent standard. 

In short, there is absolutely no need whatsoever under the intent 
test to find a "smoking gun'' of evidence or to "mind read" or to 
discern the intentions of "long-dead legislators",9 6 as is often alleged . 

. It is this misunderstanding of the intent standard that is undoubt­
edly responsible for much of the suggestion that it is an unusually dif­
ficu lt test.. 

The subcommittee would like to note, moreover, that it is not per­
suaded that an appropriate standard should be fashioned on the 
basis of what best facilitates successful legal actions against states and 
municipalities. I£ that is the sole (or even the primary) objective of 
a legal system, then Congress might want equally to reconsider 
expediting criminal prosecutions by eliminating the "beyond a rea­
sonable doubt" requirement in such cases. In developing an appro­
priate evidentiary and substantive standar9,, our society has chosen to 
consider values such as fairness and due process as well which, not 
infrequently, will conflict with the value of maximizing successful 
prosecution or litigation rates. 

To describe the intent test as one requiring direct evidence of a 
"smoking gun" or admissions of racial prejudice and bigotry is to 
misconceive the test. In fact, as the Supreme Court observed in Wash­
ington v. Davis: 

Necessarily an invidious discriminatory purpose may often 
be inferred from the totality of the relevant facts, including 
the fact, if it is true, that the law bears more heavily on one 
race than another.97 

In A rlingtonll eights, the Court stated : 
Determining whether invidious discriminatory purpose 

was a motivating factor demands a sensitive inquiry into 
such circumstantial and direct evidence of intent as may be 
available. 98 

•• 638 P.2d 1239 (i)th Ci:. 1981). 
9' 6i>9 1!'.2d 1358 (i'ith Cir. 1981) . 
••• While severul witnesses have emphasized the point that throughout our judicial his­

tory , the courts have generally refused to examine the motives of legislators, what they do 
not emphasize is that throughout this same history the courts have also refused to look 
beyond the face of a statute to identify discrimination. There are few, if any, cases prior to 
Gomillion v. Lightfoot, 364 U.S. 339 (1U60) in which the Supreme Court struck down a 
statute which was not discriminatory on its face. It was in Gomillion and in dictum in 
Lassiter County v. Northampton County Board of Elections, 360 U.S. 45 (1959) that the 
Court first began to suggest that a statute could be struck down because of discriminatory 
intent even though there was no discrimination on the face of a statute. See also Palmer v. 
Thompson, ~403 U.S. 217 (1971) . This, then, represented a significant advance for civil 
rights plaintiffs. Practices that had earlier been besond attack because courts could not 
inquire into legislatiYe motives could now be declared unconstitutional if a discriminatory 
motive could be demonstrated. Proponents of the effects test uow want to take this denlop­
ment one step further. They want to strike down statu t es that are not discriminatory on 
their face even where uo intent to discriminate has been demons·trated. This is not a rever­
sion to the old standard of refusing to look at intent but rather a perversion of the new 
exception to that standard which permits motiYe to taint an otherwise acceptable practice. 

"'426 u.s. 229,242 (1976) . 
"'429 u.s. 252,266 (1977) . 

91 - 862 0 - 82 - 5 



28 

Among the specific factors that may be looked to by the courts in 
evidencing discrimination, according to Arlington Heights, are the 
historical background of an action, departures £rom normal proce­
dural sequence, legislative or administrative history, the disparate 
impact of an action upon a minority, and the like.99 As the Court 
noted, these are only a few of the circumstances that could properly 
be the subject of an inquiry under the intent test.100 

In short, it is expected that a judicial body will weigh the "totality 
of circumstances," whatever such circumstances may be, in evaluating 
whether or not an inference of purposeful discrimination has been 
raised. The same infinite array of circumstantial evidence commonly 
used by the courts to identify criminal violations, in the absence of 
eonfessions of guilt, has also always been available to prove civil rights 
violations.101 

Professor Younger, one of the Nation's foremost authorities on the 
law of evidence, testified before this subcommittee and concluded: 

Opposition to the intent test has been practical. To enact 
it, the argument goes, is to make it difficult or even impossible 
to prove a violation. A practical objection to be sure but one 
which suggests to me that its makers lack practical experi­
ence in the conduct of litigation. Spend a few hours in any 
criminal court in the land. What is the stuff on trial~ Al­
most always, a question of intent . . . In nearly all criminal 
litigation and in much civil litigation, a party must prove the 
other party's intent. So far as I lmow, except for the matter 

•• Id. at 266-68. 
1ou See, e.g., Simon, "Racially Prejudiced Government Action: A Motivation Theory of 

the Constitutional Ban Against Racial Discrimination," 15 San Diego Law Rev. 5 (1978) 
at 10:J8 where the author discusses additi<rnal types of evidence from " ·hich the cir­
cumstantial inference. of institutional motivation may be drawn: 

(1) overtly racial rules or regulations that may (a) be symptomatic of preju­
dice, (b) single out a minority racial group or groups for clear disadvantage, or 
(c) have neither of these racial characteristics, or share one or the other to some 

incomplete extent ; (2) evidence that the action significantly disadvantages a mem­
ber or members of a minority racial group relative to others within the relevant 
population; (3) an explanation of the purportedly innocent goals of the challenged 
action that is sulfici<'ntly contPXtualiy peculiar to warrant disbelief, ( 4) evidence 
that the action' s purportedly innocent goals could have been accomplished by rea­
sonably available alternative means '':ith a significantly less racially dispro­
portionate effect; (5) judicial or administrative decisions that assign race as one 
of the grounds of decision; (6) an institutional admission, as for example a pream­
ble of legislation racially neutral on its face that recites a racial purpose or ~tn 
admission by counsel representing the institution that took the challenged action; 
(7) evidence of a contextual peculiarity in the process that led to the challenged 
actions, as. for example, the omission of a required or customary hearing; (8) 
evidence that the specific membership institution has previously been found to have 
engaged in racially prejudiced actions; (9) e\"ldence of a social-political background 
or context suggestive of racial prejudice ; ( 10) evi<'ence of the data and arguments, 
whether by outsiders or members, presented to the institution during the infor­
mation-gathering and deliberative processes that led to th<' action. 

See also generally Ely; "Legislative and Administrative Motivation in Constitutional 
La"·" , 79 Yale L.J. 1205 (1970): Brest, "In D<'fense of thP Anti-Discrimination Prin­
ciple". 90 Harvard Law Rev. 1 (1976) : Goodman. "De Facto School Desegregation : A Con­
stitutional and Empirical Analysis". 60 Cnlifornia Law Rev. 275 (1972). 

1"' See, e.g., Appellant's Reply Brief, Frank R. Parker, Lawyers' Committee for Civil 
Rights Under Law, Kirksey v. Cit11 of Jackson, No. 81-4058 (5th Cir. 1981) at 10: 

The absence of a 'smoking gun ' in the 1908 legislatiYe history does not, contrary to 
defendants' argument, negate the evidence of discriminatory purpose ... and thus 
circumstantial evidence is highly probative. 

Moreover, the brief cited RS evidence of discriminatory purpose: 
(a) the extensive perception that blacks were a political threat throughout this 

period; (b) that at-large Yoting was viewed by at least one legislative leader who 
supported this legislation as a purposeful device to prevent black political participa­
tion; (c) the inevitable and foreseeable conspquences of thi" legislation was to exclude 
black repres<'ntation ; (d) in fact. it has had this effect in Jackson; and (e) rema rks 
by single legislators which. together with other supportive P-Vidence of discriminatory 
Intent, "have provided a firm basis for findings of invidious purpose in cases within 
this Circuit." 



29 

before this subcommittee, there has been no serious conten­
tion that it is an unduly difficult or impossible thing to do. 
On the contrary, the courts have worked up several rule& to 
guide juries in ferreting out intent. Intent may be inferred 
from what X said for example but what X said does not 
conclude the inquiry: a jury may find that X's intention was 
the opposite of what was said. Or X's intent may be inferred 
from all the circumstances of his behaviour ... Nowhere does 
the law of evidence require a "smoking gun" iu the form of 
someone's express acknowledgement of the offending intent; 
and nowhere has the administration of justice been Impeded 
by the nearly universal absence of such a smoking gun ... 
Lawyers and judges are familiar with the intent test and 
juries have no particular trouble applying it.102 

The subcommittee concludes that proving intent is not "easy"­
it should not be 'easy" for a Federal court judge to make findings 
that will result in the dismantlement of a structure of municipal self­
government-but neither is it so difficult that it poses an insurmount­
able standard in section 2 cases. It is a standard that the Nation has 
always lived with in the area of civil rights, as well as other areas of 
the law, and it has often been satisfied in litigation. Most importantly, 
it is the right standard in the sense that neither an individual nor a 
community ought to be in violation of civil rights statutes, and ought 
not be considered guilty of discrimination, in the absence of intent or 
purpose to discriminate. To speak of "discrimination" in any other 
terms--to treat it as equivalent to a showing of disparate impact­
is to transform the meaning of the concept beyond all recognition and 
to embark upon a course of conduct with consequences that may be at 
substantial variance with the traditional purposes of the Voting 
Rights Act and of the Constitution itself. 
RUle of law 

The subcommittee also believes that maintenance of the present 
intent test is critical if the law in section 2 is to provide any meaning­
ful guidance to states and municipalities in the conduct of their affairs. 
As subcommittee Chairman Hatch remarked during the hearings: 

The more I think about it the more convinced that I am 
that the real distinction between the intent standard and the 
results standard is even greater than the issue of proportional 
representation. The real issue is whether or not we are going 
to define civil rights in this country by a dear, determinable 
standard-through the rule of law, as it were-or by a stand­
ard that literally no one can articulate.103 

The fundamental observation is that the results test has absolutely 
no coherent or understandable meaning beyond the simple notion of 
proportional representation by race, however vehemently its propo­
nents deny this. Ultimately, the results test brings to the law either 
an inflexible standard of proportional representation or, in the 

lOJ Senate Hearing-R, Fehrnarv 25. 1982, Ining Younger, Williams and Connolly, Former 
Professor, Cornell UniYersity School of Law. 

10' Senate Hearings, January 28, 1982, Opening Statement, U.S. Senator Orrin G. Hatch 



30 

words of Benjamin Hooks of the NAACP (in describing discrimina­
tion under the results test) : 

Like the Supreme Court Justice said about pornography, "I 
may not be able to define it but I know it when I see it." 104 

In the final analysis, that is precisely what discrimination boils 
down to under the results test because there is no ultimate standard 
for identifying discrimination, short of proportional representation . 
. Under the intent test, for example, judges or juries evaluate the to­

tality of circumstances on the basis of whether or not such circum­
stances raise an inference of intent to discriminate. In other words, 
once they have been exposed to the full array of relevant evidence re­
lating to an allegedly discriminatory action, the ultimate or threshold 
question is, "Does this evidence add up to an inference of intent to dis­
criminate?" That is the standard by which evidence is evaluated in or­
der to determine whether or not such evidence rises to a level sufficient 
to establish a violation. 

Under the results test, however, there is no comparable question. 
Once the evidence is before the cour~whether it be the totality of the 
circumstances or any other defined class of evidence-there is no logi­
cal threshold questiOn by which the court can assess such evidence, 
short of whether or not there is proportional representation for minor­
ities. As Professor Blumstein observed on this matter: 

The thing you must do under the intent standard is to draw 
a bottom line ... Basically, is the rationale ultimatelJ' a 
sham or a pretext or is it a legitimate neutral rationale? 'I hat 
is under rthe intent standard and that is a fact finding decision 
in the judge or the jury ... Under the results standard it 
seems to me that you do not have to draw the bottom line. You 
just have to aggregate out a series of factors and the problem 
is, once you have aggregated out those factors: what do you 
have? Where are you? You know, it is the old thing we do in 
law school: you balance and you balance but ultimately how 
do you balance? What is the core value? 105 

Tl1ere is no "core value" under the results test except for the value 
of equal electoral results for defined minority groups, or proportional 
representation. There is no other ultimate or threshold criterion by 
which a fact-finder can evaluate the evidence before it. 

While there have been a number of attempts to define such an ulti­
mate, evaluative standard, more probing inquiry into the meaning of 
these standards during subcommittee hearings invariably degenerated 
into either increasingly explicit references to the numerical and sta­
tistical comparisons that are the tools of proportional representation/ 
quota analysis or else the wholly uninstructive statements of the sort 
that "you know discrimination when you see it." 106 

10< Senate Hearings, January 27, 1982, Benjamin L. Hooks, Executive Director, National 
Association for the Advancement of Colored People. 

101 Senate Hearings, February 12, 1982, James F . Blumstein, Professor, Vanderbilt Uni­
versity School of Law. 

100 See supra note 104. With respect to the Section 5 "effects" test there is at least an 
objective standard by which to judge the Impact of changes upon minorities, I.e. the status 
quo ante. Thus the "retrogression" standard established In Beer has at least some meaning 
Independent of proportional representation, whatever other difficulties there may be with 
this standard. 425 U.S. 130 (1976). When existing laws are evaluated, however-as op­
posed solely to changes In the law-as they would be under the Section 2 r esults test , there 



31 

The implications of this are not merely academic. In the absence 
of such standards, the results test affords virtually no _guidance what­
soever to communities in evaluating the legality and constitutionality 
of thei:F'governmental arrangements (if they 'lack proportional rep­
resentation) and it affords no guidance to courts in deciding suits 
( i:f there is a lack of proportional representation) .107 

Given the lack o:f proportional representation, as well as the exist­
ence of a single one of the countless "objective factors of disc:r imina.­
tion," 108 the subcommittee believes not only that a prima facie case of 
discrimination would oo established under the results test hut that an 
irrebuttable case would oo established. What response could a com­
munity that is ooing sued raise to overcome this evidence~ Neither the 
fact that there was an absence of discriminatory purpose nor the fact 
that there were legitimate, non-discriminatory reasons for particular 
governmental structures or institutions, would seem to be satisfactory. 
These were certainly not satisfactory to either plaintiffs or the lower 
courts in the 11! obile case. What other evidence or what other response 
would be appropriate to rebut the evidence described here~ So long 
as there is no standard for evaluating evidence, there can be no 
standard for introducing evidence. The standard that would be £ash-_ 
ioned would necessarily be fashioned on a case-by-case basis. By neces­
sity the results test would substitute the arbitrary discretion of judges 
in place of the relatively certain rule of law established under the 
intent test. 

The confusion introduced by the results test is illustrated somewhat 
by the near-total disagreement as far as one of the most basic questions 
involved in the analysis: Does the "results" test proposed in section 2 
mean the same thing as the "effects" test in section 5 ~ Despite the 
:fundamental importance of this matter, there has been disagreement 
among witness after witness on this. Representative Sensenbrenner, 
one of the architects o:f the results test in the House, testified before 
this subcommittee and stated: 

I think that we are splitting hairs in attempting to see a 
significant difference in a results test or an effects test.J.09 

Mr. Chambers, representing the NAACP Legal Defense Fund, on 
the other hand, totally disclaimed this meaning: 

Question: \Vhat is the relationship between the results test 
in section 2 and the effects test in section 5 ~ 

Is no possibility of a similar standard to that suggested in Beer. In short, there is no 
sta ndard short of comparing actual representation of minorities with the representation 
tu which they would be ·'entllled·· unuer a proportional representation requirement. See 
Senate Hearings, March l, llJ~2. Assistant Attorney General of the !Jnited States tor Civil 
Rights Wil1iam Bradford Reynolds. 

Professor O· Rourke has further observed : 
A challenge to an at-large system of necessity must be predicated on a comparison 

between electoral opportunity under the existing l)lan and the opportunity that would 
or might prevallnnder one or more alternatives. I !' the alternatives need not be limited 
to those which fit within the existing structure of government or the current size of 
the local governing body, then there is little to pre\·ent the consideration <>f propor­
tional rejJresentation as the model against which the current system could be evalu­
ated. Statement submitted to the Subcommittee on the Constitution by Timothy 
O'Rourke, Profe~sot'. University of Virginia, March 3, 1982. 

101 As the Supreme Court in .Mobile said in rejecting the results test proposed by Justice 
:lfarshall for the Fifteenth Amendment and Section 2, 

Mr. Justice Marshall's dissenting opinion would discard these fixed principles [of 
Jaw] in favor of a judicial Inventiveness that would go far toward making this Court 
a super-legislature .... We are not free to do so. 446 U.S. 55, 76. 

108 See note l 30 infra. 
1"" Senate Hearings. February 4, 1982, U.S. Representative James SensenbPenner. 



3~ ' 

Chambers: They are not the same test ... 
Question : In other words, the experience of the comts with 

section 5 would not be relevant in determining how section 2 
is likely to be interpreted~ 

Chambers : That is correct. 110 

Ms. Martinez, representing the Mexican-American Legal Defense 
and Education Fund, however, stated: 

The continuing vita1ity of section 2 depends upon an 
amendment passed by the H01,1Se that would permit judicial 
findings of section 2 violations upon proof of the discrim­
inatory effects or results of voting practiCes.111 

Professor Cox found himself in disagreement on this point when 
he observed: 

If you mean the effects tP,st as intepreted by the courts with 
regard to section 5, I think that is considerably different 
from the results test in section 2.112 

During the course of both the House and Senate hearings on 
the Votmg Rights Act, approximately half of the witnesses who dis­
cussed this issue claimed that the results test in section 2 was similar 
or identical to the effects test in section 5, and hence that the judicial 
history of interpretation under section 5 was relevant; the other half 
argued that it meant something substantially or totally dissimilar.113 

G1 ven the inherent uncertainty about the results test in the first place, 
it is highly instructive to the subcommittee that so much continuing 
confusion could exist on a question as basic .as the relationship between 
the section 2 results test and the section 5 effects test. 

In summary, the subcommittee believes that it would be a ()'rave 
mistake for Congress to overturn the decision of the Supreme Court 
in City of Mobile v. Bolden. Such an action would effect a major trans­
formation in the law of seetion 2 and would overturn a workable and 
settled test for identifying discrimination. The results test in section 2 
would bring to the Voting Rights Act an entirely new concept of 
civil rights that would create confusion in the law and, likely, leave 
thousands of communities across the country vulnerable to judicial 
restructuring. 

B. PROPORTIOKAL UEPRESENTATION BY UACE 

Perhaps the most important and disturbing issue brought to the 
attention o£ the subcommittee during the hearings was the issue 
o£ whether the proposed change in section 2 of the Voting Rights Act 
·would lead to widespread court-ordered "proportional representa­
tion." Put simply, proportional representation refers to a plan of gov-

n" Senate Hearings, l!'ebruary 12, 1982, Julius L . Chambers, President, · NAACP Legal 
Defense l!'und, Inc. 

m Senate Hearings, January 27. 1982, Vilma ~Iartlnez, Execn til·e Director, i\Iexican 
American Legal Defense and Educational l!'und. 

m Senate Hearings, February 25, 1982, Archibald Cox, Professor, Harvard University 
School of Law, representing Common Canse. 

n1 On occasion, there wt)re e .,·en rlifferences of f'-pinion among the snme witness in their 
testimony before the House and the Senate. See, e.g., testimony of Drew Days, Professor, 
Yale School of Law, Senate Hearings, February 12, 1982 : House Hearings, June 25, 
1981 ; Henry 1\Iarsh, lllayor, Richmond, Yirginia, Senate Hearings, January 28, 1982, 
House Hearings, May 20, 1981. 



33 

ernment which adopts the racial or ethnic g:tonp as the primary unit of 
political representation and apportions seats in electoral bodies accord­
ing to the comparative numerical strength of these groups.114 The con­
cept of proportional representation has been experimented with-{)ften 
accompanied by substantial social division and turmoil-in a handful 
of nations around the world.115 There seems to be general agreement 
that the framers of our Federal Government rejected official recogni­
tion of interest groups as a basis for representation and instead chose 
the individual as the primary unit of government.116 Hence, the sub­
committee is deeply concerned with this issue since the proposed 
change in section 2 could have the consequence of bringing about a sub­
stantial change in the fundamental organization of American political 
society. 
Results mul pToportionality 

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 procedure shall be imposed or applied 
by any State or politioal subdivision to deny or abridge the 
right of any citizen of the United States to vote on account 
of race or color or in contravention of the guarantees set forth 
in section 4(£) (2).117 

The House amendment eliminates the words "to deny or abridge" 
and substitutes the words "in a manner which results in a denial or 
abridgement of." The House Committee report explains that: 

H.R. 3112 will amend Section 2 of the Act to make clear 
that proof of discriminatory purpose or intent is not required 
in cases brought under the provision.118 

Under the current language, as construed by the Supreme Court in 
the 1Jf obile case, a violation of section 2 requires pr"Dof of discrimina­
tory purpose or intent. The House bill changes the gravamen of the 
claim to proof of a disparate electoral result. This change in the very 
essence of the claim filed under section 2 necessarily changes the re­
medial options of courts upon proof of a section 2 violation. In the 
present situation, a court can provide an adequate remedy merely by 

1" It is worth noting that tllere "eems to be at least some semauticul differences as 
to what "proportional representation" means. See, e.g., Senate Ht:>arings, January 27, 
1982. Benjamin Hook~. ExecutiYe Director, NAACP ("I think there is a big difference 
between pro,lOl'tionnl repre!"t~nhltiou aucl reprt>Rf'ntation in proportion to min()rity pop­
ulation." ) ; Senate Hearings. lfPhruary 12. 1982. Drew Day,, Professor, Yale School 
of Law (dPnying that a Justice Department requirement amounted to proportional 
representation that required at least one district in a four district C(}mmunity, with a 
2::>% minority population, be structured to elect a minority representativP.) See also Senate 
Hearin.g,, January 28. 1982. Henr:v Marsh, Maror. Richmond, Virginia: February 11, 
1982. Frank Parker, Director, Voting Rights Pro.iect. Lawyers' Committee for Civil 
Rights UndPr Law; iu which fundamental disa!!'reement was expressed on whether or 
not the Richtnon<l an<l Petersburg cases Involved proportional representation. 

no SPnate Hearings, February 12, 1982, Henry Abraham, Professor, University of 
Virginia. 

no See. e.g .. Senate Hearings, January 27. 1982. WAlter Berns. Resident Scholar, Ameri­
can Enterprise Institute: Berns, "Voting Rights and Wrong", Commentary, March 1982 at 
Rl ; See also The FPdH.tlist No. 10 in which James i\ladi>on discusses the concern of the 
draftPrs of the Constitution about tlw deYelopment of "factions'' in the new Nation. 

117 Soction 4 (f\ (2) inrlncles within th<' cate'!orv of gro:']lS protectPd undPr the Voting 
Rights Act "language minority" groups. Such " language minorities" are defined to In­
clude American Indians, Alaskan Natives, Asia n Americans, and those of Spanish heritage. 
Section 14(c) (2). 

11s H.R. Rep. No. 97-227 at 29 ( 1981). 



34 

declaring the purposefully discriminatory action void since the es­
sence of the statutory claim is a right to freedom from wrongfully 
motivated official action. However, under the proposed change in 
section 2, the right established is to a particular result and so, inevit­
ably, much more will be required to provide an adequate remedy. The 
obligations of judges will require use of their equity powers to struc­
ture electoral systems to provide a result that will be responsive to 
the new right.119 Otherwise, the new right would be without an ef­
fective remedy, a state of affairs which is logically and legally un­
acceptable. 

Thus launched in search of a remedy involving results, the subcom­
mittee believes that courts would have to solve the problem of meas­
uring that remedy by distributional concepts of equity which are in­
distinguishable from the concept of proportionality. The numerical 
contribution of the group to the age-eligible voter group will almost 
certainly dictate an entitlement to office in similar proportion.1 20 It is 
the opinion of the subcommittee that if the substantive nature of a sec­
tion 2 claim is changed to proof of a particular electoral result, the 
obligation of judges to furnish adequate remedies according to basic 
principles of equity will lead to widespread establishment of pro­
portional representation. 

Virtually the same conclusion was stated by numerous witnesses who 
appeared before the subcommittee. 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 population's make-up in a particular community :would be 
vulnerable to legal challenge . . . if carried to its logical 
conclusion, proportional representation or quotas would be 
the end result.121 

Assistant Attorney General Reynolds testified: 
A very real prospect is that this amendment could well lead 

on to the use of quotas in the electoral process . . . We are 
deeply concerned that this language will be construed to re­
quire governmental units to present compelling justification 

· for any voting system which does not lead to proportional 
representation.122 

Pr()fessor Horowitz testified that under the results test: 
What the courts are going to have to do is to look at the 

proportion of minority voters in a given locality and look at 

119 The significance of this distinction was noted by Mr. Rios who described "two stages 
of litigation, that is, the proving your case part and t hen the remedy part. " He testified 
further that " once the factors delineated in Z i mrner a nd White have been established 
t hen the courts do require that you go to single-member districts but that is at the 
remedy stage." Senate Hearings, February 4, 1982, Rolando Rios, Legal Director, South­
west Voter Registration Education P roject . 

120 For f urther discussion of the concept of racial " entitlements' ', see Senate Hearings, 
February 12, 1982, James Blumstein, P r ofessor, Vanderbilt University School of Law. 
Professor Blumstein testified that the proposed change in Section 2, if theoretically based 
at all implies " an underlying theo ry of some affirmative. race·based enti tlements." Later 
in his testimony, he characterized this theory as follows : " Basically, It changes the notion 
from a fair shake to a fair share, a piece of the action, based upon r acial entitlements, 
and that is what I find objectionable." · 

121 Senate Hearings, January 27 , 1982, Attorney General of the United States' William 
French Smith. 

m Senate Hearings, March 1, i982, Assistant Attorney General of the United States 
William Bradford Reynolds. 



35 

the proportion of minority representatives in a given locality. 
That is where they will begin their inquiry; tlhat is very 
likely where they will end their inquiry, and when they do 
that, we will have ethnic or racial proportionality.123 

Professor Bishop has written the subcommitt~e: 

It seems to me that the intent of the amendment is to 
ensure that blacks or members of other minority groups are 
ensured proportional representation. If, for example, blacks 
are 20 per cent of the population of a state, Hispanics 15 
per cent, and Indians 2 per cent, then at least 20 per cent of 
the members of the leg1sl·ature must be black, 15 per cent 
Hispanic, and 2 per cent Indian.124 

Professor Abraham has stated: 

Only those who live in a dream world can fail to perceive 
the basic purpose and tJhrust and inevitaJble result of the new 
section 2: It is to establish a pattern of proportional rep­
resentation, now based upon race-but who is to say, sid­
perhrups at a later moment in time upon gender, or religion, 
or nationality, or even age.125 

A similar conclusion-that the concept of proportional representa­
tion of mce is the inevitable result of the change in section 2-was 
reached by a large number of additional witnesses and observers. (See 
Attachment B.) 

The disclaimer provision 
Proponents of the House change in section 2 have argued that the 

amendment would not result in proportional representation, and gen­
erally relied on the "disclaimer" sentence which was added to section 
2 as a part of the House bill.126 Since this is the chief argument con­
trary to the conclusion of the subcommittee, the likely effect of this pro­
vision merits careful attention. Again, the analysis begins with the 
language of the provision : 

The fact that members of a minority group have not been 
elected in numbers equal to the group's proportion of tlhe 
population shall not, in and of itself, constitute a violation 
of this section. (Emphasis added.) 

The House report comments on this change as follows : 
The proposed amendment does not create a right of pro­

portional ,representation. Thus, the fact that members of 
a racial or language minority group have not been elected 
in numbers equal to the group's proportion of the popula­
tion does not, in itself constitute a violation of the section 

12a Senate Hearings, February 12, 1982, Donald Horowitz, Professor, Duke University 
School of Law. 

~,.Letter from Joseph Bishop, Jr., Professor, Yale School of Law, to Senator Orrin G. 
Hatch, Chairman, Senate Judiciary Subcommittee on the Constitution, .January 21, 1982. 

=Senate Hen rings, Februnry 12. 1982. Henry Abraham, Professor, . University of Vir­
ginia. For other selected quotes on Section 2 and proportional repres·entation, see Attach­
ment B. 12• See, e.g., Senate Hearings, February 25, 1982, Archibald Cox. Professor, Harvard 
l'niver•lty Law School, representing Common Cause: February 25, 1982. David Brink, 
Pre,ident, American Bar Association; February 4, 1982, U.S. Representative James ·SenseD­
brenner. 

91-862 0 - 82 - 6 



36 

although such proof, along ·with the objective factors, would 
be highly relevant. Neither does it create a right to pro­
portional representation as a remedy.127 

This report language is frequently cited as explaining the protection 
nJforded by the disclaimer language of the House amendment.128 

Analysis of the House report language shows that it is a misleading 
and irrelevant comment on the likely effect of the statutory reference 
to proportionality. Moreover, the subcommittee notes that courts 
would look first to the language of section 2 itself in resolving con-. 
cerns about proportional representation and would only consult legis­
lative history if the statutory language were found to be ambiguous. 

The House Report reference to no "right of proportional represen­
tation" is highly misleading because, _as explained above, the change in 
section 2 actually cre3Jtes a new claim to non-disparate election results 
among racial groups.129 The inevitability of proportional representa­
tion is introduced by the necessity of fashioning an adequate remedy, 
to respond to the new claim. The statement in the House Report, 
"Neither does it create a right to proportional representation as a rem­
edy" is basically irrelevant to the predicted remedial consequence of 
propoxtional representation since there is no suggestion that this con­
sequence is prohibited by the disclaimer. In other words, though pro­
portional representation may not be a mandatory remedy, even under 
this theory nothing suggests that it is a prohibited remedy. 

The subcommittee believes that 'the second sentence of the report 
Janguage on the disclaimer may be an accurate observation, but is es­
sentially an irrelevant one. The disclaimer provision will have virtual­
ly no practical significance in preventing the ultimate imposition of 
proportional representation. In short, the disclaimer merely adds the 
necessity of proving, as an element of the new section 2 claim, one or 
more "objective factors of discrimination" that purport to explain or 
illuminate the failure to elect in numbers equal to the group's propor­
tion of the population. The subcommittee finds this addition totally 
illusory as a bar to proportional representation since the comts and 
the Justice Department in the context of section f) and elsewhere have 
already identified so many such factors that one or more would be 
avail!lible to fully establish a section 2 claim in virtually any political 
subdivision having an identifiable minority group. 

121 H.R. Rep. No. 97-227 at 30 (1981). 
128 The Supreme Court in Mobile was confronted with a similar disclaimer of proportional 

representation by Justice Marshall in his dissent. In response, the Court observed, 
The dbsenting opinion seeks to disclaim this description of its theory [resu l ts test) 

by suggesting that a claim of vote dilution may require, in addition to ]Jroof of elec­
toral defeat, some evidence of " historical all(! social" factors indicating that the group 
in question is without political influence ... Putting to the side the eYident fact these 
gauzy sociological considerations have no constitutional basis, it remains far from 
certain that they cou ld, in any principled manner, exclude the claims of any discrete 
political group that happens for whatever reason to elect fewer of its candidates than 
arithmetic indicates it might. Indeed, the putative limits are bound to pro,·e lllusory 
if the express purpose informing their application would be, as the dissent assumes, to 
redress the inequitable distribution of political influence. 446 U.S. at fn. 22. 

",. As Professor Gross observed : 
The Constitution speaks only of individuals. '!'here are many theorie> of political 

representation ... but only one of the>e is enacted in the Constitution. Senate Hear­
ings, January 28, 1!!82. !:larry Gross, Professor, City College of New York. 

Tho concept of a "diluted" vote. a concept much admired among proponents of the results 
t('st, is one that has meaning only in the context of interest groups. The Equal Protection 
clause of the Fourteenth Anwndment as well as the Fifteenth Amendment extend their 
protections expressly to individuals, not to groups. 



37 

A pattial list of these "objective factors," 130 gleaned from 
various sources, includes (1) some history of discrimination; 131 (2) 
at-large voting systems or multi-member districts; 1 32 (3) some his­
tory of "dual" school systems ;133 

( 4) cancellation of registration for 
failure to vote; 134 

( 5) residency requirements for voters; 135 ( 6) spe­
cial requirements for independent or third-party candidates; 136 (7) 
off-year elections; 137 (8) substantial candidate cost requirements; 138 

( 9) staggered terms of office; 13u ( 10) high economic costs associated 
with reg1stration; 140 

( 11) disparity in voter registration by race; 141 

( 12) history of lack of proportional representatwn; 142 
( 13) disparity 

'"'From the perspective of the proponents of the results test, an "objective factor of 
uiscrimination ·• is an electoral vracdce or vrocedure which constitutes a •barrier to effective 
minority l>articivation · in the political process. 'l .hese ractors are deri\'ed generally from 
<lecis.ons 01' 1eueral courts, ObJections of the Department of Justice to proposed changes 
s·ubmitted by conred jurisuictions for precleanwce unuer Section (\, the House lteport, 
H.K Hep. l\o. :.i-:!~7 at ao (l!HH), testimony presented at the !Senate hearings, and other 
miscel!aueolil:!i sources. 

m •!See, e.g., H.lt. Hep. Xo. l!7-227, 97th Cong., 1st Sess. 30-31 (1981), (hereinafter in 
this section "House lteport" ) ; 'Senate hearings, January 27, 1982, Henj amin L. Hooks, 
],Jxecutive Director N.A.A.C.P.; See a1so, Gaston County v. united States, a\15 U.S. 285, 
2u6-( ("1!6\!J. Discrimination against olacks (and perhaps . other minor.ties) has been 
prevalent throughout the United States and the existence of such discrimination, although 
going back many generations before, will nevertheless be used as the predicate for broad, 
far-reaching relief under any law using dbparate or discriminatory impact us a test." Sen­
ate Hearings, February 4, 1982, E. l!reeman Leverett, Attorney, E lberton, Georgia. 

13" See, e.g., House Heport at a0-31 : This was the argument of the plaintiffs in City of 
.Jfobi!e v. Bolden, 446 U.K 55, 65-70 (11!80). 

'l.'he Justice Department has routinely objected to at-large voting systems contained in 
Section 5 preclearance submissions: e.g. Twiggs County, Georgia (8-7- 72) ; State of 
l\1ississippi (G- 21-til!); Hale County, Alabama (4-2<J-'i6) ; Lexington, Mississippi (2-2(\-
77); Hooeson County (N.C.) Hoard of Education (12-29-75); Horry County, South 
Carolina (11.,-12-76) Senate Hearings, March 1, 1982. William Bradford Reynolds, Assist­
ant Attorney General of the United States (Attachments D-1 and D-2) ; see also, •Senate 
hearings, January 2·7, 1982, Benjamin L. Hoo'l;s. lt is interesting to note that such "objec­
tive factors of discrimination" as the at-large system of voting have been attacl;eu even 
In the context of situations in which "minorities" represent population majorities within 
a community, e.g. San Antonio, 'l'exa~. Ste Senate Hearings, January 27, 1982, Vilma Mar­
tinez, Executive Director, :.v.texican-American Legal Defense and Education Fund. 

"'·See. e.g., Con,.nonu:ealth oj Virginia Y. I.Jnite<l States, <J86 1<'. Supp. 1311! (D.D.C. 19'74) 
ajfit·med, 420 U.!S. 90 (1075). 

""· t>ee, e.g., House He ~•crt at 21 n. 105; Senate Hearings, January 27, 1982, Benjamin L . 
Hooks; "Barriers to Effective Participation in Electoral Politics" , Voter Education Project 
Report, at 2 (March 1981). The Justice Department has objected to voter purging provi­
sions in Section 5 submissions; e.g. State of Mississippi ( 4-6-81) ; Senate Hearings, March 
1, 1982, William Bradford Reynolds (Attachment D-2). 

1~• :see, e.g., House Report at a0-31: The Justice Department has often objected to resi­
dency requiremeuts contained in Section 5 preclearance submissions: e.g. Bogalusa, Lou­
isiana (10- 29--73); Wulter!Joro, South Carolina (5-24-74); Pil;e County, Alauama (8-12-
74) ; Sharon, Georgia (2-10-7UJ ; Senate Hearings, March 1, 11!82, William Bradford 
Reynolds (Attachments D-1 and D-2). 

1"' See, e.g., Al!o1 ,._ State Boar1! of Election8, 393 U.S. 544, u70 ( 1969). 
"" 'The Jus tic<> Department has objected. for example, to Si>ecial elections in preclearance 

submissions on six occasions, Senate Hearings, March 1, 1982, William Bradford Reynolds 
(Attachment E-2) . It might similarly be argued that "off-year" elections tend to result in 
disproportionately low Yoter turn-out among minorities. 

uSee, e.g., Senate Hearings January 2·1. 11182. Benjamin L. Hooks; Voter Education 
Project Report. "BarrierH" at a (:March 1!!1'11). The .Tustlce Department has objected to 
tiling fees in Section ·5 submissions; e.g. Ocilla, Georgia tiling fees for aldermen or mayor 
(10- 7-75) ; Albany, Georl(ia lillng fee (12-7- 73); Senate Hearings, March 1, 1982, William 
Bradford Reynolds (Attachment; D-1 and D-2). 

""Set', e.g., Senate Hearings, January 27, 1982, Benjamin L. Hooks. The Justice De­
partment has objected to xtaggered terms in Section G preclearance submi•slons on numer­
ous occaxions: e.g .. Phenix City. Alahama 112- l2-7G): St. Helena Parish, Louisiana (3-7-
72) ; Xewnan. Georgia (6- 10-7{)) ; Reidsville, North Carolina (8-3-79) ; Gretna, Virginia 
(9- 27-79) ; Senate Hearings, March 1, 1982, William Bradford Reynolds (Attachments 
D- 1 and D- 2). 

w• See. e.g., Senate HParings, January 27, 1982, Benjamin Hooks-"Whether the polling 
place:-; are nccPxsihlP to the communitieH rhere tlw minoritiP~ rPside. ancl times conyet!ient 
for the votPrs". The .Justice Department has objPcted to polling place changPs contomed 
in Section G preclearance submissions: e.g., Sumter Count~· . Alabama (10-17-80) ; ~ew­
port News. Virginia (ii-17- 74) ; New York City , New York (9-3-74) ; Senate Hearings, 
March 1. 1982. William Bradford He:vno1ds (Attachments D- 1 and D-2\. 

u1 See. e.g .. Voting Rights Act of 19fl5, § 4(b), 42 U.S.C. § 1973b(b). See South Caro­
lina v. Katzenbach, 383 U.S. 301 (1966) . 

"" 'See, e.g., House Report at 30-31: City of Mobile v. Bolden, 446 U.S. GG (1980) ; 
City of Rome v. Unite1! State8, 446 U.S. 156 (1980). 



38 

in literacy rates by race ; 143 ( 14) evidence of racial bloc voting; w 
(15) history of English-only ballots; 145 (16) history of poll taxes; 146 

( 17) disparity in distribution of services by race; 147 ( 18) numbered 
electoral posts; 148 (19) prohibitions on single-shot voting ; 149 and (20) 
majority vote requirements.150 -

Such "objective factors of discrimination" largely consist of elec­
toral procedures or mechanisms that purportedly pose barriers to full 
participation by minoritif's in the electoral proces.<;. Given the exist­
ence of one or more of these factors with the lack of proportional 
representation, the new test in section 2 operates on the premise that 
the existence of the "objective factor" ex:plain8 the lack of propor­
tional rf'presentation. Thus, in a technical sense, the disclaimer would 
be satisfied. It would not be the absence of propoltional representa­
tion in. wul of 'itself that would constitute the dispositive element of 
the violation but rather the "objective factor". The existence of both 
the absence of proportional representation and any "objective factor" 
would consummate a section 2 violation. Because of the limitless num­
ber of "objective factors of discrimination," the disc.laimer provision 
would essentially be nullified. Effectively, any jurisdiction with a 
significant minority population that lacked proportional representa­
tion would run afoul of the results test. Identifying a further "objec­
tive factor of discrimination" would be largely mechanical and 
perfunctory.. -

The analysis of the subcommittee of the likely significance of the 
disclaimer sentence, in fact, accords it more weight than suggested by 
several opponents of the change who appeared before the subcom- -
mittee. Their views are not rejected, but are recognized as lending im­
portant support to the conclusion of the subcommittee. 

Assistant Attorney General Reynolds testified, for example, that 
the disclaimer would only operate to prevent a violation of section 2 
where an electoral system had, in fact, been tailored to achieve pro-

"" SeP. e. g., Voting Rights Act of 1V6G, § 4(a), 42 U.S.C. § 1973b(a); Gaston County v. 
(,"nited States, 39G U.S. 28G (11!69) . 

tu Sec, e.g,, House Heport at 30-31 ; GUy ot Mobile 'v. Bolden , 446 U.S. GG (11JRO) ; 
City of Rome Y. Un-itctl St~tex. H6 U.S. 11\6 (1!li\O) . Senate HParing"- Jan, 27. 1982, 
llPnjamln L. Hooks ; Voter Education ProJect Heport. " Barrier s" at G (:\larch. 1981). 

11" l:lee, e.g.; Yoting IUghts Act of 196G, § 203, 42 U.S.C. § 1973ntt- 1a. ~'he Justic<> D epart­
m ent has ohject"d to ... Endish-only ballots" in Yuba Co >ntv ( G- 211- 76) and Monter~y 
Countr, California (3-4-77) . Senate Hearings, Ma rch 1, 1982, William Bradford Reyn­
olds (Attachment D- 2). 

HO See, e.g., Voting Rights Act of 19GG, § 10, 42 1:-S.C. § 1973h. 
117 See, e.g .. CU •1 of Rome v. UnUPd Statex, 446 l' .S. 156 (1980) ; Lodqe v. Buxton , 639 

F.2d 1HGS (Gth Clr 19R1) ; SPnat<' HParing", .Tun, 27 . 1!li'~2 . Benja min Hooks. 
1" See, e.g .. House Report at H0-3L The Justice Department has consistently objec ted 

to "numbered electoral posts" in ~ectiou 5 preclearance submissions: e.g. , Birmingham, 
Alabama ( 7- 9- 71): the State" of Gem·gia (7- 6- H1). Lo •lsiana (4- 20- 7:{) . l\[iS>i"' i"pi. 
(ll- 10-71). Xorth Carolina (9- 27-71) , South Carolina (6- 30- 72) ; and 'l'exas City , 'l'exas 
C:l- 10-76). SPnatP Hearin~:s. :llnrch 1, 1982. William Bradford Heynolds (Attachments, 
D- 1 and D- 2) : SPnate Hearings . . Tan. 27. 1 !IR2. Benjamin Hooks, 

,.. See. e.g .. House Report at xo- :n_ T h e Justice Detlartment has on occasion ohjecteu to 
"single-shot prohibi tions" in Section 5 preclearance submissions: e.g .. Tallade_!!a. Alo>hama 
(7- 2il-71) : SumtPr Cnty. L\la.) l)pmocratlc I•:xectuiYP CommittPe ( 10- 29- 74). Senate 
Hearing"· l\Iarch 1. l!!R2. William Bradforu Rernold"- (Attachments D- 11 : City of Rom e 
Y. UnitP!l States. 446 U.S. 1 G6. 184 (HIHO) : U.K Commission on CiYil Rights. "The 
Votln!! Rights Act ; ~·en Years After" JlP- 20B-207 (197G): Senate Hearings, Jan . 27, 1982. 
B<'nlamln Hooks. 

tr.o See, e.g .. House Heport at 30- !H. '!'liP Justice DPpartment has routineh· oh_iecte<l to 
"mnjorib· vote requ i1·emfl'nt~" in Se,.tion 5 prPCIPnrancP !-mhmi:..:~ions: {l'. !! .• Pikf' Count~· . 
Alnlianut (R- 12-74): AthPns. Ga. (10- 2:{-7;;), Au guHta. Ga. (:{-2-81) ; Orleans Pari"h, La . 
(8- 15- 7ii \ : S•atP of ~r;,,i" i '111i (fl- 11 - 7'1\: GrPPII>'ille. N.C. 14- 7- RO\ : Rock Hill. S.C. 
(12-12-7R): Dumas (TX) Independen t Sohool Di"trict Ul-12- 7 6)_ SPnate Hparlnr•s )~>lreh 
1, 1!JR2. \\"illlnm Bradford l{p~·nolds (Attachments, D- 1 nn<l D-2) . See Senate Hearmg,. 
Jnn. 27, 1982, Benjamin Hooks. 



39 

portional representation and the intended result was not achieved 
solely because the right was not exercised as, :for example, where no 
minority candidrute sought office.151 This reasoning led Assistant Attor­
ney General Reynolds to conclude that in most situations a failure to 
achieve proportional representation by itself would be sufficient proof 
of a section 2 violation : 

In the archetypal case-where minority-backed can­
didates unsuccessfully seek office under electoral systems, such 
as at-large systems, that have not been neatly designed to 
produce proportional representation-disproportionate elec­
toral results would lead to invalidation of the system under 
section 2, and, in turn, to a Federal comt order restructuring 
the challenged government system.152 

Professor Younger testified that the disclaimer is likely to be whol­
ly ineffective because it is "simply incoherent." 153 He observed: 

If the draftsmen of proposed section 2 wished to see to it 
that the racial makeup of an elected body would not be taken 
as evidence of a violation, they have failed to say so in their 
moving sentence. If enacted, that saving sentence will either 
be rewritten by the court..;; or ignored, in either event dishonor­
ing Congress' responsibility to write the Nation's laws.154 

Professor Berns testified that the disclaimer might simply be ignored 
and stated: 

·whatever Congress' intention in making this disclaimer, 
the courts .are likely to treat it the way they treated a similar 
disclaimer in the Civil Rights Act of 1964. There Congress 
said specifically that nothing in Title VII of that Act should 
be interpreted to require employers " to grant preferential 
treatment" to any person or group because of race, color, sex, 
or national origin, not even to correct "an imbalance whic:h 
may exist with respect to the total number of percentage of 
persons of any race etc. employed by any employer. Clear 
enough, one would think, but the Supreme Court paid it no 
heed. To read this as written, said Justice Brennan in the 
Weber case, would bring a.bout an end completely at variance 
with the statute, by which he meant the purpose of the Court. 
Congress' disclaimer should be taken with a grain of salt.155 

By whatever theory one prefers, the disclaimer is little more than 
tt rhetorical smokescreen that poses utterly .no barrier to the develop-

'"'Senate H~1uings, i.\farch 1, 1982, Assistant Attorney General of t he United States Wil· 
linm Bradford He.nwhl,. 

"'"It!. 
1 ~':-~ St>mtte Hearing:.; , !1..,e1Jruary 2;j, 1982, Irving Younger, 'Yilliams and Connallr, Former 

l'rof<>ssor, Cornell Uniwrsity 'School of Law. · 
1 =-~1 Id. 
1=-~• Bern:->. '·Voting Hights and \\·rougs ." Commentary, :i\Iarch l!) S:2 nt :'{:-.;, " We1Jc1··' rPfers 

to / 'niter/ S t eelwo1'ke•·• ot A.me1·ica v. 1\'ebe1·, 441! U.S. 1!lil (1!!79). 'l'h<> uisdaimer is il­
hl~ory in yPt auother sPuse in that it does nothing more than rf'statP. what is alre~Hh· Jll'PS­
eut lu\Y, Wlt'tcomb \', Olwri", 40'l U.S. 124. 1 ·19, (1!l71); White\' . Heve•ter, 41:l U.S. 7G.I. 
7Hii (l!J7'l); City ot .lloliile , .. Bolden 446 U.S. 5G. 66 (1980): Lodge \' , Buxton. tlil!J !-'. 2d 
1:{:)8, 1:162 (uth Clr. 1981), sta,\' ;;ranted suh nom Roge1·s v. Lorlge, 4o9 U.'S. !H8 (1978). 
In that sense. lt does not a<ldreso; at all the impact and hnplici•tions of that part of 
Section 2 that ;., b<>in~ chan~~:ed-the resu lts tf'st. The very fact fhat Congress will ha,·e 
<:hanged thP standard of Sectioll 2 evidences nu obvious intent on the }IUrt of Congress to 
<:b~u1ge current law. 



40 

ment of proportional representation mandated by the preceding lan­
guage in the new results test. 

To summarize once more, the disclaimer provision is meaningless as 
a barrier to proportional representation because: (a) it is absolutely 
silent in addressing the remedies, as opposed to the substantive viola­
tion, required by the results test; (b) even with respect to the sub­
stantive violation, the language taken at its face value simply requires 
the identification of an additional "objective factor of discrimination," 
one or more of which will exist in most jurisdictions throughout the 
country; (c) the provision can equally be interpreted to place an ab­
solute obligation upon a jurisdiction to establish governmental struc­
tures consistent with proportional representation, offering protection 
to such jurisdictions only to the extent that minority groups them­
selves have been derelict in taking advantage of such a structure as, 
for example, when they fail to offer a candidate; (d) the provision 
from a purely technical point of view is inherently illogical and inter­
mtlly inconsistent since by the terms o£ section 2 only "voting practices 
or procedures" can be violations not, by definition, the racial nwke-up 
of an elected body; and (e) the provision, even if it meant what its 
proponents argue it means, is uncomfortably close in language to dis­
claimers in earlier legislation that has been effectively ignored by the 
courts. 
Proportional representation as public policy 

The conclusion of the subcommittee that proportional representa­
tion is the inevitable result of the proposed change in section 2, not­
withstanding the disclaimer, leads the inquiry to whether the adop­
tion of such a system would be advisable policy. On this point, the· 
testimony was virtually unanimous in conclusion: Proportional rep­
resentation is contrary to our political tradition and ought not to be 
accepted as a general part of our system of government at any level.156 

Professor Berns, for example, indicated that the Framers considered 
the very question the subcommittee has addressed and rejected any 
system of representation based on interest groups. He testified: 

Representative government does not imply proportional 
representation, or any version of it that is likely to enhance 
bloc voting by discretB groups. The Framers of the Con­
stitution referred to such groups as "fa.ctions," and they did 
their best to minimize their influence." ... 

Whereas the Anti-Federalists called for small districts and, 
therefore, many representatives, the Framl:'l'S called for (and 
got) larger districts and fewer representatiws. They did so as 
a means of encompassing within each district "a greater 
variety of parties and interests," thus freeing the elected rep­
resentatives from an excessive dependence on the unrefined 
and narrow views that are likely to be expressed by particular 
groups of their constituents.157 

100 See e.g .. Senate Hearings, February 4, 1982. Norman Dorsen. Professor. New York 
University School ot Law, representing the American Civil Liberties Union: "I would be 
against proportional representation. I think that people are entitled to vote under a fair 
and constitutional system and that proportional representation bas not bPen our system."; 
Senate Hearings, February 12, 1982., Julius Chambers, President, NAACP Legal Defense 
Fund. Inc. 

"'7 Senate Hearings, Januuary 27, 1982. Walter Berns, Resident Scholar, American Enter­
prise Institute. 



41 

The testimony of Professor Erler sounded the same theme: 
Nothing could be more alien to the American political 

tradition than the idea of proportional representation. Pro­
portional representation makes it impossible for the repre­
sentative process to find a common ground that transcends 
factionalized interests. Every modern government based on 
the proportional system is highly fragmented and unstable. 
The genius of the American system is that it requires factions 
and interests to take an enlarged view of their own welfare, to 
see, as it were, their own interests through the filter of the 
common good. In the American system, because of its fluid 
electoral alignments, a representative must represent not only 
interests tha.t elect him, but those who vote against him as well. 
That is to say, he must represent the eommon interest rather 
than any particular or narrow interest. This is the genius of a 
diverse country whose very electoral institutions-particu­
larly the political party structure-militate against the idea 
of proportional representation. Proportional representation 
brings narrow, particularized interests to the fore and under­
mines the necessity of compromise in the interest of the com­
mon good.158 

The subcommittee adopts these views and believes that propor­
tional represent3Jtion ought to be rejected as undesirable public policy 
totally apart from the constitutional difficulties that it raises, and the 
racial consciousness that it fosters. Since it has concluded that the 
proposed change in section 2 will inevitably lead to the proportional 
representation and that the disclaimer language will not preYent tllis 
result, the subcommittee necessarily and firmly concludes that the 
House amendment to section 2 should be rejected by this body. 

C. RACIAL IMPLICATIONS 

In addition to the serious questions inherent in adopting any legisla­
tion which recognizes interest groups as a primary unit of political 
representation, it must be taken into account that the particular group 
immediately involved is defined solely on racial grounds. The subcom­
mittee believes special caution is appropriate when the enactment of 
any race-based classification is contemplated and rigorous analysis of 
potential undesirable social consequences must be undertaken. 

The first problem encountered is simply one of definition. Legislation 
which tends to establish representation based on racial group neces­
sarily poses the question of how persons shall be assigned to or excluded 
from that group for political purposes. Recent history in this and other 
nations suggests that the resolution of such a question can be demean­
ing and ultimately dehumanizing for those involved. All too often the 
task of racial classification in and of itself has resulted in social tur­
moil. At a minimum, the issue of classification would heighten race­
consciousness and contribute to race-polarization. As Professor Van 
Alstyne put it, the proposed change in section 2 will inevitably: "com­
pel the worst tendencies toward race-based allegiances and divi-

158 Senate Hearings, January 28, 1982. Edward Erler, Professor, National Humanities 
Center. 



42 

sions." 159 This predicted result is in sharp conflict with the admoni­
tions of the elder Justice Harlan who wrote in PlesffY: 

There is no caste here. Our Constitution is colorblind, and 
neither knows nor tolerates classes among citizens. . . . The 
law regards man as man, and takes no account of his surround­
ings or of his color when his civil rights are guaranteed by the 
supreme law of the land are involved.160 

More recently Justice Stevens called the very attempt to define 
qualifying racial characteristics: 

repugnant to our constitutional ideals ... I£ the national 
government is to make a serious effort to define racial classes 
by criteria that can be administered objectively, it must study 
precedents such as the First Regulation to the Reichs Citizen­
ship Law of November 14,1935.161 

Thus the subcommittee finds that the race-based assignment of citi­
zens to political groups is a potentially disruptive task which appears 
to be contrary to the Nation's most enlightened concepts of individual 
dignity and civil rights. 

The second problem involves doubtful ·assumptions which are neces­
sary to support a race-based system of representation. The acceptance 
of a racial group as a political unit implies, for one thing, that race 
is the predominant determinant of political preference. Yet, there is 
considevable evidence that black political figures can win substantial 
support from white voters, and, similarly, that white candidates can 
win the votes of black citizens. Attorney General Smith described the 
evidence. He referred to the implica.tion that blacks will only vote for 
black candidates and whites only for white candidates and said: 

That, of course, is not true. One of the best examples of that 
is the City of Los Angeles, .where a black mayor of course was 
elected with many white votes.162 

Similarly, a race-based system implies that the decisions of elected 
officials are predominantly · determined by racial classification. Pro­
fessor Berns questioned this assumption in his testimony: 

I question whether a bl·ack can be fairly represented only 
by a black and not, for example~ by a Peter Rodino or that a 
white can be fairly represented only by a white and not, for 
example, Edward Brooke.163 

In other words, there is no evidence that racial bloc voting is inevit­
able and reason to doubt that fair representation depends on racial 
1dentity. Legislation which assumes the contrary may itself have the 
detrimental consequence of establishing racial polarity in voting where 

= Letter from William Van Alstyne, Professor , Dul<e University School of La w, Visiting 
P rofessor, Univer sity of Calif ornia School of La w, t o George Cochra n. P rofesso r , Univer sity 
of Mississippi School of Law. Februar y 16, 1982; subm it ted t o the Sena t e Subcommittee on 
·the Consti tu t ion , February 25, 1982. 

1"' Plessy v. F erguson, 163 U.S. i:i:\7, i\ i\9 (1897) (dissenting opinion by H a rlan , J.) . 
1" ' Fullilo ve v. Klutznick, 448 U.S. 448, i\ 34 n. 5 (1980) (dissenting opinion by 

Stevens, J.) . 
1"' Senate Hearings, January 27, 1982, Attorney General of the United States William 

French Smith. . 
16'1 Senate H ear ings, Janua ry 27, 1982, 'Valter Berns, Resident Scholar, American Enter ­

prise Institute. 



43 

none existed, or was merely episodic, and of establishing race as an 
accepted factor}n the ~ecision-making of elected offici~ls. 

Fmally, any assumptiOn that a race-based system will enhance the 
political influejice o£ minorities is open to considerable debate. Profes­
sor Erler testified 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 minorities are best served when narrow racia;l 
issues are subsumed within a larger political context where 
race does not define political interests. The overwhelming 
purpose of the Voting Rights Act was to create these con­
ditions, and probably no finer example of legislation serving 
the common mterest can be found. But transforming the V ot­
ing Rights Act into a vehicle of proportional representatation 
based upon race will undermine the ground of the common 
good upon which it rests. Such a transformation will go far 
towards precluding the possibility of ever creating a common 
interest or common ground that transcends racial class con­
siderations.164 

Professor McManus recalled an instance where politically articu­
late blacks argued strongly against proportional representatiOn: 

One faction of blacks, led by several state representatives, 
the three black Houston City Council members, argued for 
spreading influence among three commissioners rather than 
having a single black 'figurehead' commissioner. State Repre­
sentative Craig Washington, spokesperson for the group, 
pointed out that three votes are needed to accomplish any­
thing substantive. "As long as we have 25 percent of the vote 
in any one district we are going to be the balance of power. 
For that reason it is better for the black community to have 
voting impact on three commissioners than to be lumped to­
gether in one precinct and elect a black to sit at the table 
and watch the papers fly up and down," he said. Washington 
argued that packing all the blacks in one district was "not in 
the best long-term interests of the community." 165 

The City Attorney for Rome, Georgia, Mr. Brinson similarly ob-
served: ~ 

While the proposed amendment to section 2 may be per­
ceived as an effort to achieve proportional representation 
aimed at aiding a group's participah :m in the political proc-

, .. Senate Hearings , February 12. 1982, Edward Erler, Prof~ssor, National Humanities 
Center. Even Jus tice Brennan. certa inly no ODponent of a tfirma. tive a ction notions· of civil 
rights. has remarked that efforts t o achieYe proporti'lnal r epresenta tion could be used as a 
"contrlvl\nce to segregate the group . . . thereby frustra tinl( its potentially succe,sful etrorts 
N2~3~lltion building along r acial lines." United J ewi.•h Organi~:a tion v . Carey, 430 U.S. a t 

"'"Senate H earings, F ebrua ry 1, 1982, Susan l\IcManus, Professor, University of Houston . 
The subcommittee draws a "harp distinction between a ggre;::ate Influ ence of the minority 
community generally a nd the Influ ence of Individual minority representa tives. While th'e 
Influence of an Individual minority representative may we! !be enha nced by an overwhelm­
Ingly concentrated minority district, It Is questionable whether or not minority Influence 
generally Is enhanced by such districts as opposed , for example, to greater dispersal of 
significant minority populations among a greater number of district s. A distinction thus 
must be drawn between minority Influence and minority representa tion. ' ' 



f4: 

esses, in reality it may very well frustrate the group's po­
tentially successful effbrts at coalition building across racial 
lines. The requirement of a quota of racial political success 
would tend strongly to stigmatize minorities, departmental­
ize the eleetorate, reinforce any arguable bloc voting syn­
drome, and prevent minority members from exercising in­
fluence . on the political system beyond the bounds of their 
quota.166 

A third problem relates to the perpetuation of segregated residen­
tial patterns . . Since our electoral system is established within geo­
graphic parameters, the prescription of race-based proportional rep­
resentation means that minority group members '"ill indirectly be 
encouraged to reside in the same areas in order to remain in the race­
based political group. A political premium would be put on segre­
g~ted neighborhoods. Professor Berns used the term "ghettoization" to 
describe . this process. "I:f 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?" 167 · Professor McManus emphasized in her testimony 
that administrative practices in the context of section 5 seemed to en­
courage such segregation : 

, A premium is put on identifying racially homogeneous pre­
cincts and using that as the test, and it seems to me the bottom­
line .inference is that racial polarization, or haYing people in 

., racially-segregated precincts, is the optimal solution or the 
ideal, which I find very hard to accept as a citizen.168 

. .' T~~ subco~mittee · rejects the premise that proportional rep­
i·l3~_entatioiJ. . systems in fact enhance minority influence (as opposed 
to minority representation). Even, however, to the extent that this 
-\v~re a yll,lid-premise, it would be valid only with respect to highly 
s~gregated :JI).inority groups. Indeed, proportional representation sys­
tems would place a premium upon the maintenance of such segrega­
tion. For to the extent that a minority group succeeded in integrating 
itself on a geographical basis, it would concomitantly lose tl,e "bene­
fits" of a ward-system of voting. Such a system would "benefit" minori­
ties only insofar as residential segregation were maintained for such 
groups. . 

Thus, analysis suggests that the proposed change in section 2 in­
volves a distasteful question of racial classification, involves several 
doubtful assumptions about the relationship between race and polit­
ical behavior, and may encourage patterns of segregation that are 
contrary to prudent public policy. These likely undesirable social con­
sequences argue strongly against the proposed change in section 2. 

D. IMPACT OF RESULTS TEST 

Assistant. Attorney General Reynolds emphasized in his testimony 
before the subcommittee that the proposed change in section 2 would 

1•• Senate Hearings, February 11. 1982, Robert Brinson, City Attorney, Rome, Georgia . 
1•7 Senate 'Hearings, January 27, 1982, Walter Berns, Resident 'Scholar, American Enter-

prise Institute. -
1'" Senate Hearings, February 1, 1982, Susan McManus, Professor, University of Houston. 



45 

apply nationwide, would apply to existing laws and would be a per­
manent provision of the Act. These observations cogently establish the 
parameters for assessing the practical impact of the proposed change 
in section 2.169 

Every political subdivision in the United States would be liable to 
have its electoral practices and procedures evaluated by the pro­
posed results test of section 2. It is important to emphasize at the 
outset that for purposes of section 2, the term "political subdivi­
sion" encompasses all governmental units, including city and county 
councils, school boards, utility districts, as well as state legii:;latures. 
All practices and procedures in use on the effective date of the change 
in the law would be subject to the new test, as well as any subsequently 
adopted changes in practices or procedures. Furthermore, since the 
provision would be permanent, a political subdivision which was not in 
violation of section 2 on the effective date of the propDsed amendment, 
and which made no changes in its electoral system, could at some subse­
quent date find itself in violation of section 2 because of new local 
conditions which may not now be contemplated and which may be he~ 
yond the effective control of the subdivision.170 

·within these general and far reaching parameters,171 it appears thrtt 
any political subdivision which has a significant racial or language 
minority population and which has not achieved proportionalrepre-· 
sentation by race or language group would be in jeopardy of a sec­
tion 2 violation under the proposed results test. If any one or more 
of a number of additional "objective factors of cliscrimination" 172 were 
present, a violation is likely and court-ordered restructuring of the 
electoral system almost certain to follow. 

100 Senate Hearings, March 1, 1982, Assistant Attorney General of the United 'States 
William Bradford Reynolds. . 

170 Section 5 of the Voting Rights Act, of course, applies only to proposed changes in 
voting practices and procedures. It does not apply to practices and procedures in eft'ect at 
the time a jurisdiction becomes covered. Hence, the implications of the proposed chanp;e in 
section 2 are of critical importance for covered jurisdictions as well as non-covered 
jurisdictions. 

1'1 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 eft'ect of the amendment. is revolutionary, 
and will place in doubt the validity of political bodies and the election codes of many 
states in all parts of the Union ... The amendment to Section 2 will likely have 
these consequences: (1) It will preclude any meaningful annexation by municipalities, 
government cons'olidations. county consolidations, or other similar governmental 
reor; anizations in areas having a minority population ... (2) It will outlaw at­
large voting in any area where any racial , color, or language minority is found . . . 
(3) It will place in doubt state laws governing qualifications and educational require· 
mentH for public office .. . (·1) It will dramatically aft'ect State laws establishing 
congressional districts, state legislative districts, and local governing body apportion­
.ment or districting schemes; and (5) It will place in doubt provisions of many election 
corles throughout the United States. Senate Hearings, February -!, 1982, E. Freeman 
Leverett, Attorney, Elberton, Georgia. 

These observations are not at significant variance with the observations of a large 
number of additional witnesses concerned about the change in section 2. To capture 
further a sense of the potential breadth of the section 2 change, imagine the implica­
tion• of a State legislatu·re's decision not to reduce the minimum voting age in state 
elections to 16, for example, or to increase such age after having voted u reduction. In 
each case. there would be a clear disparate impact upon racial minorities because of the 
substantially lower, aYerage age of this population. In each case, a substant!ully higher 
nroportion of minorities would be eft'ectively "disenfranchised." See Senate Hearings, 
February 4, 1982, Norman Dorsen. Professor, New York UniversHy School of Law, 
representing the Anoerican Civil Liberties Union February 12, 1982, Julius Chambers, 
President, NAACP Legal DPfense Fund, Inc. 

m The House Report on H.R. 3112 refers to these as being "objective factors of dis­
crimination". H.R. Rep. No. 97-227. The Voter Eilucation Project describes these as 
"barriers to minority participation." Hudlln and Brimah. The Voter Education Report: 
Barriers to Ell'ectlve Participation in Electoral Politics (March 1981). 



46 

The probable nature of such an order is illustrated by the action of 
the District Court in the LV! obile case.173 At the time the action was 
brought, the City of Mobile, Alabama had a City Commission form 
of government which had been established in 1911. Three Commis­
sioners elected at large exercised legislative, executive and administra­
tive power in the city. One of the Commissioners was designated mayor, 
although no particular duties were specified. The judgment of the Dis­
trict Court disestablished the City Commission and a new form of 
municipal government was substituted consisting of a Mayor and a 
nine member City Council with members elected from nine single mem­
ber wards or districts. The fact that Mobile had not established its 
system for discriminatory purposes, as well as the fact that clear, non­
racial justification existed for the at-large system was considered large­
ly irrelevant by the lower court. Thus, virtually none of the original 
governmental system remained after dismantling by the District Court. 
The conflict between the District Court's i1l obile decision and funda­
mental notions of democratic self-government is obvious. Particularly 
noteworthy is the District Court's finding that blacks registered and 
voted in the city without hindrance. Notwithstanding this finding, 
however, the -Federal court disestablished 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 explore the far-reaching implica­
tions of overturning the ill obile- deciswn. Research conducted by the 
subcommittee suggests that in a large number of states there exists 
some combination of a lack of proportional representation in the state 
legislature or other governmental bodies and at least one additional 
"objective factor of discrimination" which might well trigger, under 
the results test, Federal court-ordered restructuring of those electoral 
systems where the critical combination occurs. 

The subconvmittee lws endeavored to con8·ult the best avail­
able sources. It should be noted that information of this kind 
is subject to change. The objective of the subcomm.ittee in 
presenting this information is only to illustrate the potential 
irnpact of a results test. 

State legislatures 
There appears to be a lack of proportional representation in one or 

both hous:.>s of the state legislatures in the following states with sig­
nificant minority populations: m Alabama, Alaska, Arizona, Arkan­
sas, California, Colorado, Connecticut, Delaware, Florida, Georgia, 
Kansas, Kentucky, Illinois, Indiana, Louisiana, Maryland, :Massachu­
setts, Mississippi, Missouri, New Jersey, New Mexico, New York, North 
Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, 
South Dakota, Tennessee, Texas, _Utah, and Virginia. 

In addition, there appear to be additional "objective factors of dis­
crimination" present in virtually every one of these states. For ex--

""423 F , Supp, 384 (S.D. Alabama, 1976), affirmed u71 F.2d 238 (5th Cir. 1978), 
reversed, 446 U-S- 55 (1980) , 

m This determination was made by reference to: United States Bureau of the Census, 
1980 Census of Population and Housing, Advance Re:>orts. Pub'ication Nos, 80-V-i-50 
(current as of ApriL 1980) ; Joint Center for Political Studies, "National Roster of Black 
Elected Officials," VoL 4 (1972)-VoL 10 (1980); United States Commission on Civil 
Rights, The Voting Rights Act: Unfulfilled Goals (Sept, 1981). and telephonic inquiries to 
appropriate state officials, 



47 

ample, according to the United States Commissioll. on Civil Rights, 
every state listed has some definite history of discrimination.175 This 
often has been exemplified in the existence of segregated or "dual" 
school systems.176 In addition, the Council of State Governments has 
reported that Alaska, Arizona, Arkansas, Colorado, Delaware, Flor­
ida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, New 
Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsyl­
vania, Rhode Island, · South Carolina, South Dakota, Tennessee and 
Virginia provide for the cancellation of registration for failure to vote, 
a typical "objective factor of discrimination." 177 

The Council has also reported that Alabama, Alaska, Ariz<:ma, Cali­
fornia, Colorado, Illinois, Indiana, Mississippi, New Jersey, New 
York. North Carolina, Pennsylvania, Rhode Island, Tennessee, Texas, 
and Utah establish a minimum residence requirement before elections, 
another typical "objective factor of discrimination." 178 Further, ac­
cording to the Council such states as Alaska, Arkansas, Califomia, 
Colorado, Delaware, Florida, Illinois, Indiana, Kentucky, Missouri, 
New Mexico, Oklahoma, Pennsylvania, Tennessee, Texas, and Utah ­
have established staggered electoral terms' for members of the State 
Senate, still another "objective factor of discrimination." 179 . 

From the foregoing, the subcommittee concludes that there is a 
distinct possibility of court-ordered restructuring with regard to the 
system of electing members to at least thirty-two state legislatures if 
the results test is adopted for section 2.180 (See chart A.) 

The subcommittee emphasizes that the three or four "objective fac­
tors of discrimination" discussed above are by no means exhaustive 
of the possibilities. Additional factOrs which might serve as a basis 
for court-ordered changes of systems for electing members of Rtate 
legislatures which hav~ not achieved proportional representation in­
clude: disparity in literacy rates by race, evidence of racial bloc vot­
ing, a history of English-only ballots, disparity in distribution of 
~ervices by race, numbered electoral posts, prohibitions on single-shot 
voting, majority vote requirements, significant candidate cost require­
ments, special requirements for independent or third party candidates, 
off-year elections, and the like. 

175 United States Commission on Civil Rights, The Unfinished Business, Twenty Years 
Later ... A Report to the U.S. Commission on Civil Rights by its Fifty-one State 
Advisory Committees (Sept. 1977) . See supra note 131. 

176 Id. See also, The National Institute of Education, School Desegregntion: A Report of 
State and Federal Judicial and Administrative Acti,-ity and Supplement (Dec. 1978) ; 
U.~. Commi,;sion on ·Civil Rights, Desegregation of the Nation's Public Schools: A Status 
Report (1979); U.S. Commission on Civil Rights, Racial Isolation in the Public Schools 
(1H67). Set• suvra note 133. 

1" The Council of State Government~. The Book of the States (1980-81) . The number 
oi day~ rt>quirPd Yarie~ from statp to Htate. S tates which simply require that a voter be a 
"resident" were not included in this list. See supra note 13G. 

117 Id. States have been included nbove which have any such provision. Some states 
provide for cancellation for faih1re to vote in the last genernl election, while others provide 
for cancelln tiou for fn ih! rt' to vote within a ::;pecified number of years or in a specified 
number of elections. See supra note VH. 

m ·Council of State Governments, Rea.pportionment Information Service, State Profiles 
(l\Iar. 1981). See suprn note 139. 

180 Some witnesses have suggeste<l that the subcommittee exaggerates th~ impact of the 
amendments to section 2 because "There are Yf'ry few of us who have the re~ourceH and 
those of us who can only do so many casPs. I do not think that people ought to be that 
fearful that ever.v jurisdiction is going to be challenged about everything overnight." 
Senate Hearings, January 27, 1982, Vilma Martinez, Execut ive Director, :11exican-American 
Legal T'efense and Education Fund. EYen if this is true. it is less than comforting to S(}me 
that in place of a rule of lnw precluding legal action against countless municlpalltfes 
thro1u!'hout the Nation, the results test would substitute a rule In which actions were 
limited on the basis of the legal resources of various "public interest" litigating 
organizations. 



48 

CHART A-STATES LACKING PROPORTIONAL REPRESENTATION IN ONE OR BOTH HOUSES OF THE STATE 
LEGISLATURE AND PRESENCE OF "OBJECTIVE FACTORS OF DISCRIMINATION" 

Cancellation of 
registration 

Sbites lacking proportional representation in Some history of for fa ilure 

Minimum 
residence 
requirement 
before election 

Staggered terms 
for members of 
state senate one or both houses of the State legislature discrimination to vote 

Alabama ___ -------- __ _____ _______ ______ •• __ X 
Alaska _______ •• ________ •• __ •• __________ ____ X 
Arizona •• __________________________________ X 
Arkansas___________________________________ X 
California __ -------------------------------- X Colorado. __________ •• ____ •• ________________ X 
ConnecticuL. -------- - --- ----------- --- ---- X 
Delaware___________________________________ X 
flor[da __ _______________________ •• __ __ __ __ __ X 
Georda ____ •• ____________ •• ______________ •• X 
Illinois._______ __________ _________________ _ X 

~~~::~-= == == ==== ==== ============ == ==== == == ~ Kentucky ____________ ____ __ , _______________ X 
Louisiana ______________ _____________ _______ X 
Maryland __ ___ _____ ------------------------ X 

. ~ri~1~J~li~~;==== == :::::::::::::::::::::::: E New Jersey __ ___________________ ________ ____ X 
New Mexico __ ____________________ ___ _______ X 
New York __________________________________ X 
North Carolina __________________ ____________ X 
Oklahoma______ __________________ __________ X 
Pennsylvania_---- ------ ------------------- - X Rhode Island _______________________________ X 
South Ca,-ol ina _________________ _____ ____ ____ X 
South Dakota _______________________________ X 
Tennessee. - ------- ------ ------------------ X Texas ...• ____________ •• ______________ •••• __ X 

~~~~";;;:======= ==== == ====== == ==== ====== == == ~ 

---------------- X ----------------
X . X X 
X X ----------------
X ------------ ---- X 

----------------X X 
X X X 

X 
X 
X 
X 
X 

X 
X 
X 

---------------- X 
---------------- X 

X 
X 

X 
X 

---------------- X 

---------------- X ----------------
-------------------------------- X 
X X ---------- - - - -- -
X ---------- ------X 
X X ----------------
X X ---- - ------- -- - -
X ---------------- X 
X X X 
X X ----------------
X -------- -------------- --- --- - ---
X ------------------------- - - --- --
X X X 

---------------- X X 
---- ------------ X X 
X -------------- ------ ------------

Note : The presence in a State of a Particular "objective factor of discrim ination" is ind icated by an "X" in the column 
on the same. line as the name of the State. The information presented in the chart is the same as presented above in the 
text and the sources are the same as noted above. The chart should be viewed as merely another way of depicting this 
information, and should be considered in light of the text and related notes. In particular it should be kent in mind that 
only a sampling of the "objective factors of discrimination" are set forth in the chart. 

ill unWipalities 
Illustrative of the municipalities in jeopardy of court-ordered 

change under the new results test are the following : 

Anchorage, Alaska 

The city of Anchorage has an assembly composed of eleven mem­
bers, all of whom are elected at-large. There are no minority members 
in the assembly, . but minorities comprise approximately 15 percent of 
the population of Anchorage. This lack of proportional representa­
tion, when combined with the at-large voting practice, as well as evi­
dence of segregation in the local schools (according to the U.S. Com­
mission on Civil Rights) might well result in extensive judicial restruc­
turing of the Anchorage system. 

Baltimore, Md. 

The City Council of Baltimore is compose-d of 18 members, three 
elected from each of six districts. There are six minority members of 
the 18 members on the Council, or 33.8 percent of the membership. 
However, minorities comprise 56.2 percent of the Baltimore popula­
tion. Other factors in Baltimore include a history of discrimination 



49 

and dual school systems (according to the U.S. Commission on Civil 
Rights) , and the existence of filing fees for some city offices. The com­
bination of factors in Baltimore would likely result in restructuring 
the Baltimore City electoral process by court order.181 

Birmingham, Ala. 

The Birmingham City Council has nine at-large seats, two of which 
are occupied by memben; of a minority group (22.2 percent). Minori­
ties comprise 56 percent of Birmingham's population. This lack of 
proportionality, when assessed in light of the history of discrimina­
tion and segregated schools (according to the U.S. Commission on 
Civil Rights and the courts) , as well as the at-large voting practice 
leads to the conclusion that the Birmingham City Council would likely 
be restructured by court-order. 

·Boston, Mass. 

The Boston City Council is composed of nine members elected at­
large. One council member is a member of a minority group (11.1 per­
cent). Minorities comprise 30 percent of the population of Boston. 
This lack of proportional representation, when assessed in light of 
the at-large voting practice, a history of dual school systems as well 
as a history of discrimination in Boston (according to the U.S. Com­
mission on Civil Rights) would likely result in judicially ordered re­
organization of the system for electing the Boston City Council. 

Cincinnati, Ohio 

The Cincinnati City Council is composed of nine members elected 
at-large. One membei· of the conncil is a member of a minority group 
( 11.1 percent). The minority population of Cincinnati is at least 33 
percent. This lack of proportionality and the at-large electoral prac­
tice, when weighed in light of the history of segregated schools in 
Cincinnati, (according to the U.S. Commission on Civil Rights), will 
likely result in restructuring of the system for electing members of 
the City Council. 

Dover, Del. 

The City Conncil of Donr is comprised of eight members elected 
at-1 arge. One is a llH'm ber of a minority group ( 12.5 percent). Minori­
ties comprise 31.5 percent of Dover's population. This lack of pro­
portional representation~ when combined with the at-large voting 
practice, might well result in extensive judicial restructuring oi 
Dover's system. 

Fort Lauderdale, Fla. 

Fort Lauderdale has a City Council composed of four members, all 
of whom are elected at-large. There are no minorities on the council, 

1St DPlegate John Dougla"" of Baltimore. Chairman of th<> :\Iaryland Black Caucus' r<>­
distrlcting effotts indicated in a recent new"P•llWr article that there is a legal hasis to 
challenge the state redistricting plan in l\farrlanrl hec;H'"e Baltimore \Yhich i" uii% black 
will have only four out of nln<> rllstricts or 44% with nJtl.jorit~· black populations. Washing­
ton Post, .January 14, 1982, at Bl. 



50 

whereas the minority population of Fort Lauderdale is 22.4 percent. 
This lack of proportionality in the City Council coupled with the at­
large system would likely result in court-ordered restructuring of the 
electoral system of the City Council. 

New York, N.Y. 

The City Council of New York City has 43 members. Thirty-three 
members are elected from single-member districts, and two members 
are elected at-large from each of five boroughs. Of the 43 members 
of the Council, eight are members of a minority group. All minority 
members are elected from single-member districts, and all borough at­
large representatives ,are white. Thus, the percentage of minorities on 
the City Council is 18.6 percent whereas the percentage of minorities 
in New York City is approximately '10 percent. The lack of propor­
tional representation by race on the New York City Council, when 
combined with the at-large voting practice, and the history of dis­
crimination in New York City including the history of dual school 
systems (according to the U.S. Commission on Civil Rights) would 
render the New York City Council election system subject to court­
ordered restructuring. 

Kodolk, Va. 

The Norfolk City Council is composed. of seven members elected 
at-large. One is a member of a minority group (14 percent), whereas 
approximately 39 percent of the population is comprised of minorities. 
This lack of proportional representation by race on the City Council, 
when viewed in conjunction with the at-large voting practice, leads to 
the conclusion that the electoral system for the City Council of Nor­
folk would undergo reconstruction by court-order. 

Pittsburgh, Pa. 

The Pittsburgh City Council has nine at-large seats, one of which is 
occupied by a member of a minority group ( 11.1 percent). Minorities 
comprise 25.3 percent of the Pittsburgh population. This lack of pro­
portional representation, when combined with the at-large voting prac­
tice and history of segregated schools (according to the U.S. Commis­
sion on Civil Rights, and the courts), might well result in extensive 
judicial restructuring of Pittsburgh's system. 

San Diego, Calif. 

Members of the City Council of San Diego are elected at-large. One 
of the eight Council members is a member of a minority group (12.5 
percent) whereas minorities comprise approximately 2± percent of 
the population of San Diego. This lack of proportional representation 
when combined with the at-large voting practice as '"''ell as history of 
segregated schools (according to the U.S. Commission on Civil Rights) 
might, well result in extensive judicial restructuring of San Diego's 
system of electing members of the City Council. 



51 

Savannah, Ga. 

The City Council of Savannah has eight members, two elected at­
large and SlX by distnct. 'uvo are nH~1nbers of a minority group, 
whereas 50 percent of the populatibn of Savannah is comprised · of 
minorities. When combined with the other factors in Savannah such 
as the history of segregated schools (according to the courts) , it be­
comes apparent the system for electing the City Council of Savannah 
will likely be changed by court-order if the results test is established 
in section 2. 

"\V aterbury, Conn. 

The City of Waterbury, Connecticut is governed by a Board of Al­
dermen. The Board consists of 15· members, all of whom are elected on 
an at-large basis. There is one minority on the Board, whereas there 
is a minority population of 16.5 percent in Waterbury. This lack of 
proportional representation by race, when combined with the at-large 
voting practice and history of segregated schools (according to the -
courts), would likely result in a court-ordered restructuring of the sys­
tem for selecting the Board of Aldermen of Waterbury. 

These examples are but a few illustrations of literally thousands of 
electoral systems across the country which may undergo massive jud­
icial restructuring should the proposed results test be adopted. The in­
formation presented has dealt with state legislatures and municipal­
ities, but other political subdivisions such as school boards and utility 
districts would be subject to the same judicial scrutiny should the new 
standard be adopted. 

The subcommittee is well aware that proponents of the results 
test consider this discussion of the impact of section 2 to exaggerate 
the situation considerably. In response, the subcommittee would make 
the following general observatiOns: First, the burden of proof in 
this case rests with those who would seek to alter the law, not those 
who would defend it. Second, the subcommittee does not believe that 
proponents of the results test have been convincing in explaining how 
the test would work in a manner other than that descri'bed in this 
section. In short, where in the text of H.R. 8112 or elsewhere is tihere 
anything which precludes a section 2 violation in the circumstances 
described in states and mnnicipalities in this section? Indeed, the 
results test would seem to demand a violation in these circumstances. 
Finally, the subcommittee is utterly confounded as to what kind of 
evidence could be submitted to a court by a defendant-jurisdiction in 
order to overcome the lack of proportional representation. What 
evidence would rebut evidence of lack of proportional representation 
(and the existence of an additional "objective" factor of discrimina­
tion) ? The subcommittee has yet to hear a convincing response. In 

- 111 obile, for example, the absence of discriminatory purpose on the 
part of the city, as well as the existence of legitimate, non-discrimina­
tory reasons behind their challenged electoral structure ( at-lat'ge 
system) was considered insufficient to overcome the lack of propor­
tional representation. Repeatedly, the subcommittee has been "reas­
sured" that such concerns are not well founded because a comt would 



52 

consider the "totality of circumstances". As noted in section VI (a), 
this begs the basic question: What is the standard for evaluating any 
evidence, in?luding the "totality of circumstances", under the results 
test? What IS the ultimate standard by which the court assesses what­
ever evidence is before it? Apart froin the standard of proportional 
representation, this subcommittee sees no such standard. 

VII. SECTION 5 oF THE AcT 

On April 22, 1980, the Supreme Court revisited the issue of the 
constitutionality of the Voting Right..-; Act nnd reached the same con­
clusion that it had some fourteen years earlier in South Carolina v. 
Katzenbach.182 In Oity of Rome v. United States/83 the Court ad­
dressed the question, as it had been posited by thr~ City of Rome, 
Georgia, in an attempt to seek release from the section 5 preclearance 
.requirements of the Act. 

In finding that the Act was indeed a constitutional and an appro­
priat~ congressional activity pursuant to the dictates of .section 2 of 
the Fifteenth Amendment, the' Court, through Justice Marshall, spe­
cifically examined the applicability of section 5 since the 1975 amend­
ments to the Act. Citing extensively from House and Senate reports, 
it was noted that although gains had been made by blacks in the 
covered jurisdictions : 

Congress found that a seven-year extension of the Act was 
necessary to preserve the "limited and fragile" achievements 
of the Act and to promote further amelioration of voting dis­
crimination.18! 

Accordingly, the· Court concluded that, predicated upon congres­
r-;ional findings of fact. its legislati ,·e actions had a sound constitutional 
basis. The Court stated: 

When viewed in this light, Congress' considered determi­
nation that at least another seven years of statutory remedies 
were necessary to counter the perpetuation of 95 years of . 
voting discrimination is both unsurprising and unassailable. 
The extension of the Act, then, was plainly a constitutional 
method of enforcing the Fifteenth Amendment.185 

It is well-settled, then, that Congress can, through its powers derived 
from section 2 of the Fifteenth Amendment, enact legislation to 
remedy identifiable voting di scrimination when fonnded upon suffi­
cient factual findings. 

A. OPERATION OF PRECLEARANCE 

In addition to an examination of the constitutional ity of preclear­
ance, the subcommittee believes that a review of the operation of pre­
clearance as it presently applies is necessary in order to assess the Act. 

A jurisdiction seeking to preclear a voting change under section 5 
has the burden of showing the United States District Cou11t for the 
District of Columbia or the Attorney General that the voting change 

1a2 383 U.S, 301 (1966), 
183 446 u.s, 156 (1980) , 
1 .. 446 U.S. at 182, 
"'" Id. 



53 

submitted for review "does not have the purpose and will not ha.ve the 
effect" of denying or abridging "the voting rights of a covered minor­
ity.~' Since few of the covered jurisdictions have used judicial preclear­
ance, most experience has inrolved the Department of Justice, which, 
£or example, received 7,300 submission in 1980. 186 

· 

Although the Department of Justice has issued no guidelines or 
regulations regarding the "effects" test of section 5,'87 an apparent 
patt.ern of the application of the standard has emerged from the ex­
perience of jurisdictions covered by the preclearance 1nechanism of 
the Act. No longer is the objecti \'e equal access in registration and vot­
ing, but rather a structuring of election systems that translates into 
n1ethods of maximiziRg the representation of minorities by members 
of their own group. The policy of the Department ostensibly is 
founded upon the language in section 5, which applies to "any voting 
qualification or prereqms1te to voting, or standard practice, or proce­
dure with respect to voting" that is different from th<tt in effect on the 
date used to determine coverage pursuant to section 4 (b). 188 

In evaluating certain submissions, such as ·reapportionment or re­
districting plans, as well as annexations, the Department "applies the 
legal standards t11at have been developed by the courts." 180 Yet, there 
have been few suitB for judicial preclearance-a total of 25 since 
1975.190 The pertinent cases have created a system of law which lias 
not always provided clear guidance.191 

B. CONTINUED COVERAGE AND BAIL-OUT 

The subcommittee also concerned itself, with an inquiry aimed at 
a determination of the continuing nature of the "exceptional condi­
tions" within the covered jurisdictions.192 The subcommittee finds that 
such a determination is necessary m order to insure that any furthel' 
continuation of coverage comports with constitutional principles. 
However, nearly every witness acknowledged some need for the con­
tinuance of section 5 coverage.193 Still, there was an acknowledgment 
by many witnesses that progress has been made and that the conditions 
existent in 1982 are not those of 1965, 1970, or 1975.194 

18" Senate Hearing;s, March 1, 1982, Assistant Attorney General of the United States Wil­
liam Bradford Reynolds Attachment at 10. 

"''Letter of Assistant Attorney General of the United States William Bradford Reynolds 
to U.S. Senator Orrin G. Hatch, January 8, 11!82. (Hereinafter referred to as Reynolds' 
January let,er.) . 

188 Those dates are November 1, 1964; November 1, 1968 ;. and November 1, 1972, or else 
the Presidential election dates in those years. 

"'"Letter of Assistant Attorney General William Bradford Reynolds to U.S. Senator 
Orrin G. Hatch, February 25, 11!8t. (Hereinafter referred to as Reynolds February letter.) 
See also Reynolds' January letter supra note 187. 

100 See supra note 186 at 145-6. 
,., See generally supra Section IV 
10' South Carolina v. Katzenbach, 383 U.S. 301, at 334. Regarding preclearance, the Court 

noted, "This may haYe been an uncommon exercise of Congressional power, as South Caro­
lina contends, but the Court has recognized that exceptional conditions can justify legisla­
tive measures not otherwise appropriate.'· 

10" See e.g., Senate Hearings, January 27, 1982, Attorney General of the United States 
William French Smith; Ben)amin L. Hooks, Executive Director, National Association for 
the Advancement of Colored People; January 28, 1982, Laughlin McDonald, Director, 
Southern Regional Office, American Civil Liberties Union; U.S. Representative Henry R. 
Hyde; February 1, 1982, U.S. Representative M. Caldwell Butler; February 2, 1982, Abi­
gail Turner, Attorney. Mobile, Alabama; February 4, 1982, William P. Clements, Governor 
ol Texas; February 11, 1982, Dr. Arthur Flemming, Chairman, United States Commission 
on Civil RightR ; February 12. 1982, Drew Days, Professor, Yale School of Law. 

,.. See e.g., Senate Hearings, January 27, 1982. Attorney General of the United States 
William French Smith; Ruth .T. Hinerfeld, President, League of Women Voters of the 
United States; January 28, 1982, U.S. Representative Henry R. Hyde; U.S. Representative 
Thomas J. Bliley; February 4, 1982. E. Freeman Leverett, Attorney, Elberton, Georgia · 
February 11, 1982, Robert Brinson, City Attorney, Rome, Georgia. ' 



54 

Accordingly, the ::;ubcommittee recognizes that although the need 
for coverage may continue, it notes that great strides have been made 
by minorities in the electoral process in the covered jnt'isdictions. More­
over, it appears that the historic abuses of 1965 are clearly not as wide­
spread as they were found to be by previous Congresses. An examina­
tion of minority registration figures illustrates an example of increased 
partici pation.1u5 

C. BAIL-OUT CRITERIA IN HOUSE LEGISLATION . 

Of the various proposals dealing with a release mechanism from the 
act, all generally tend to establish criteri~• which must be met before 
a covered jurisdiction can escape or bailout from section 5 coverage. 
During the course of the hearings, many witnesses cited the need for a 
bailout, noting that such a goal is not only desirable but appropriateY" 

Historically, the test for bail-out has always been that for a speci­
fied number of years, the petitioning jurisdiction had not used a test 
or device "for the purpose or with the effect of denying or abridging 
the right to vote on account of race or color." Although the original 
period of coverage was for five years past 1965, voting rights legislation 
in 1970 and 1975 aggregated this period to se.venteen years. Accord­
ingly, absent congressional action, those jurisdictions originally cov­
ered in 1965 would have an oppo.rtunity after August 6, 1982, to peti­
tion the U.S. District Court for the District of Columbia for release 
from section 5 coverage. Successful petitions; however, \Yould remain 
within the jurisdiction of the District Court for a period of five addi­
tional years.197 

The subcommittee chose to begin its analysis of bail-out criteria with 
the provisions of H.R. 3112. This bill extends the present Act until 
1984, and thereafter utilizes a ten-year period for assessing the pro­
posed new bail-out criteria: 

A declaratory judgment under this seetion shall issue only 
if such court determines that during the ten years preceding 
the Hing of the action, and during the pendency of such 
action [the following elements have been satisfied]: 

Thereafter', the bill sets out a series of elements, each of which lS 

necessary in order to accomplish a successful release. 

'"''£he Voting Rights Act: Unfulfilled Goals, United States Commission on Civil Rights, 
at 40-44 (1981). See also chart B infra. 

19J See e.g., Seuate Heariugs, January 27, 1!)~2. Attorney ·General of the United States 
William French Smith; .January 2t;, HJ82, U.S. HevresentatiYe Henry Hyde ; February 1, 
1982, Susan M:cl\lanus, Professor, UniYersity of Houston; February 11, 11!82, Robert Brin­
son, City Attornel-, Home, Georgia; ~farch 1, 1982, As•'istaut Attorney General of the 
United States William Bradford Reynolds. . 

,., Section 4(a) [42 U.S.C. Sec. 1973b(a) ]. Technically speaking, there is currently a 
bail-out provisl.on of sorts in the present Act apart from the requirement that a "test 
or device" be avoided for a period of years. This provision in section 4 (a) permits bail­
(>ut if the jurisdiction can demonstrate that thp 'tes•t or de\ ice" waR never utilized for 
a diRcriminatory purpose. In the 17 years of the Act. nine political subdivisions (primarily 
outside the South) haYe been released from co,·erage under this Jlroyision . in each case 
the Attorney General consenting to judgenwnt. No bail-ont petition has ever prevailed 
as a result of full-fledged litigation. Political subdidsions which could not demon&trate 
that a " test or deYice" was never utilized for a discriminatory manner prior to 1!165 
have not been able to bail-out since then. Cf. Cornman wealth of Virginia v. United States 
HRG I~. Supp. VllG (1974). affirmed 420 U.S. 901 (1975) (State of Virginia could not 
bail-out despite showing that "test or device" never used for discriminatory pur pose be­
cause history of dual school system must ha\'e affected voting practices of black citizens.) 



55 

Element 1.-No such test or device has been used within 
such State or political subdivision for the purpose or with the 
effect of denymg or abridging the right to vote on account of 
race or color or (in the case of a State or subdivision seeking a 
declaratory judgment tmder the second sentence of this sub­
·section) in contravention of the guarantees of subsection (f) 
(2). 

The use of . "no test or device" has been the sole element for the 
duration of the Act, and as was noted by Assistant Attorney General 
Reynolds a" ... large number of jurisdictions would be able to meet 
that test at this stage." 198 

Element 93.-No final judgment of any court of the United 
States, other than the denial of declaratory judgment under 
this section, has determined that denials or rubridgements of 
the right to vote on account of race or color have occurred 
anywhere in the territory of such State or political subdivision 
or (in the case of a State or subdivision seeking a declaratory 
judgment under the second sentence of this subsection) that 
denials or abridgements of the right to vote in contravention 
of the guarantees of subsection (f) (2) have occurred any• 
where in the territory of such State or subdivision and no 
consent decree, settlement, or agreement has been entered into 
resulting in any abandonment of a voting practice challenged 
on such grounds; and no declaratory judgment under this 
section shall be entered during the pendency of an action com­
menced before the filing of an action under this section and 
alleging such denials or abridgements of the right to vote. 

This section basically establishes three types of bars to bail-out: 
judicial findings of discrimination concerning the right to vote; con­
sent decrees entered into by which voting practices have been aban­
doned ; and pending actions alleging denials of the right to vote. 

;\_ violation of the "final judgment" aspect would obviously con­
E>titute strong evidence that the jurisdiction has not abided by the 
principles upon which the act is founded and has not acted in good 
faith. According to Assistant Attorney General Reynolds, some 17 ju­
risdictions would be precluded from bail-out solely as a .result of this 
factor, although he does not Yiew it as being "an onerous require­
ment." 199 

With regard to the "consent decree" ban, the subcommittee believes 
that to preclude bail-out for a jurisdictio11, solely because it has en­
tered into a consent decree, settlement, or agreement resulting in any 
abandonment of a challenged voting practice 1oithout mnr\! is incon­
sistent with established practices and prudent legal princ,ples. It is 
sound public policy that litigation should be avoided wher0possiblc; 
yet, the inclusion of consent decrees as a bar to bail-out can only en­
gender prolonged litigation that will only detract from thb long-term 
goals of the act. As Assistant Attorney General Reynolds stated, 

1"" Senate Hearings, March 1, 1982, Assistant Attorney General of the United States 
William Bradford Reynolds. 

""
9 I d. 



56 

clearly the preference is to settle cases and to try to ob­
tain consent decrees and that is a way to resolve these litiga­
tions if we can. [Element 2] seems to me to so1ind like it might 
be a disincentive to jurisdictions to E:'nter tJha.t kind of ar­
rangement. 200 

The bar relating to pendency of actions alleging denials of the .right 
to vote is also of concern to the subcommitteE:'. Clearly, litigious parties 
could preclude a jurisdiction from a bail-out without any local control 
whatsoever. Moreover, this provision ignores the existing "probation­
ary" period after bail-out. 

Element 3.-N o Federal examiners under this Act have been 
assigned to such State or political subdivision. 

This element would preclude bail-out if, during the previous ten­
year period, either the Attorney Gf'nf'ral or a Court, had ordered the 
appointment of Federal examiners. Inasmuch as the use of Federal 
examiners entails, "displacing the discretionary functions of local 
voter registration officials," 201 it is by its very nature an extraordinary 
use of power beyond local control. There is no app~al nor review of 
the decision of the Attorney General. Moreover, the subcommittee 
must agree with Assistant Attorney General Reynolds in his assess­
ment that it is unclear what this requirement is designed to address.202 

The subcommittee acknowledges that in the years immediately 
after the 1965 Act, the use of examiners for registration purposes 
was successful. However, since 1975, f'xaminers certified by the At­
torney General have been utilized to list voters in only two counties.203 

It should be noted that since August 19'!5, the Attorney G-eneral, 
however, has certified ;~~ counties as "f'xamine.r counties," 204 but this 
has been necessary in order simply to provide Federal observers, for 
observers may be directed only to counties in which there are exam­
iners serving. 205 

The subcommittee believes that this element is totally beyond the 
control of the covered iurisdictions and could sene to frustrate any in­
eentive to bail-out. This is especially true when, as noted, the assign­
ment of examiners could be made only to further another administra-

. tivc goal-the appointment of observers to monitor ele,ctions--which 
does not even imply voting irregularities. 

_ Element 4.-Such :State or poiitical subdi,·ision and all 
governmental units within its tem·itory have complied with 
section 5 of this Act, including compliance with the require­
ment that no change covered by section 5 has been enforced 
witJhout preclearance under section 5, and have repealed all 

21'0 Irl. 
201 Id. 
20• Id. Reynolds observed : "Federal PxaminH" are aRsigned to jurisdiction•, in connec­

tion with the registration process and li•tlng eligible votprs. If that I• all It pertains to. I 
think there are a limited number of countiPs that would he affectPd. Rut, on the other hand, 
also Federal examiners are assigned to different countries In conjunction with sending In 
SPVPral of the Federal observers on request to obsPrve different elections. If thP assignment 
of Federal examiners for that purpose WPre to he Included as an elPment which would 
prevent ball out, there would be a large number of counties under that particular require­
ment and It Is not clear from the language or the House report exactly what Is Intended 

'there." 
=rd. 
""'Id. 
200 Id. 



57 

changes covered by section 5 to which the Attorney General 
has successfully objected or as to which the United States 
District Court for the District of Columbia has denied a 
declaratory judgment. 

This requirement would bar bail-out if any voting law, practices, 
or procedure were implemented in the ten-year period without pre­
clearance. Needless to say~ the subcommittee recognizes the neces­
sity of covered jurisdictions' conuplying with preclearance. Yet, it is 
conceivable that, inasmuch as the bail-out of the greater jurisdiction 
is tied to the lesser, some minor change could well have been in­
stituted without preclearance. Moving the office of the county registrar 
from one floor to another might be an example. Nevertheless, such 
ail omission would preclude the county as well as the state from 
bail-out. As an attorney with the Voting Section of the ,Justice Depart­
ment has noted : 

Complete compliance with the preclearance requirement is 
practically impossible in two respects. 

First, no matter how many changes an official submits to 
the Attorney General, a student of section 5 can always find 
another change that has not been submitted. For example, a 
probate judge always submits change.CJ in the location of 
polling plaees, but he neglects to submit the rearrangement 
of tables and booths at one polling place. 

Second, no matter how well an election administr'ator plans 
in advance of an election, there will always be changes that 
must be implemened before they can be precleared. For ex­
ample, a polling place burns down the night before the elec­
tion.206 

The subcommittee feels that such an action should not absolutely 
preclude bail-out and, this requirement should not be so stringent as 
to foreclose bail-out for inadvertence. 

Element 5. The Attorney General has not interposed 
any objection (that has not been overtmned by a final judg­
ment of a court) and no declaratory judgment ha F> been 
denied under section 5, with respect to any submission by 
or on behalf of the plaintiff or any governmental unit within 
its tem·itory under section 5; and no such submissions or 
declaratory judgment actions are pending. 

This element would bar bail-out if there has been any objection 
to a submission for preclearance. In the practice of section 5 pre­
clearance, it is common for the Attorney General to interpose an 
objection to a voting change s.implJ: beca.u~e. there is not enough in­
formation on hand for the affirmative decisiOn to be made that the 
proposal "does not have the purpose and wil~ no~ have the effect" of 
discrimination in voting. Accordingly, an ob]ectwn by the Attorney 
General does not per se indicate bad faith on the part of the sub­
mitting jurisdiction. Moreover, it is not uncommon for an objection 

m DaYid H . HuntH. " Section ;; of the Yotin): Ri):hts Act _of l!lG:> : Prol.Jlems and J;'~ssi· 
blli tfes." prepared remarks for d~li ,-err at the Annual :\Ie~tlll~ of the American Pohhcal 
Science Association (1980). 



5B 

to be withdrawn.207 Assistant Attorney General Reynolds noted that 
of the 695 objections that had been interposed: 

Some are far more important but this [section] does not 
differentiate. 208 , 

The subcommittee acknowledges that t}1e "no objection" specifica­
tion is founded upon a general basis of assuring compliance but notes 
that the inability to examine the history of a covered jurisdiction's 
submissions might preclude bail-out due to a trivial proposed change 
or one that was abandoned. 

Element 6.- Such State or political subdivision and all 
governmental units within its territory-

( i) have eliminated voting procedures and methods of elec­
tion which inhibit or dilute equal access to the electoral 
process; 

(ii) have engaged in constructive efforts to eliminate in­
timidation and harassment of persons exercising rightr:; pro­
tected under this Act; and 

(iii) have engaged in other constructive efforts, such as ex­
panded opportumty for convenient registration and voting 
for every person of voting age and the appointment of mi­
nority persons as election officials throughout the jurisdiction 
and at all stages of the election and registration process. 

The criteria of this section would require a jurisdiction seeking bail­
out to prove that it and all of its political subdivisions h~we elimmated 
methods which "dilute equal access" to the electoral process, have en­
gaged in "constructive efforts" to end intimidation '!tnd ha.rassment of 
persons "exercising rights protected" under the Act, and have engaged 
m "other constructive efforts" in registration and voting for "every" 
voting age person and in appointing minorities to election posts. It 
is totally unclear what a "constructive effort" would be in any of these 
regards although it is difficult for this subcommittee to be.lieve that 
this term is intended to be employed as anything other than a vehicle 
to promote "affirmative action" principles of civil rights to the voting 
process. 

As Assistant Attonwy General Reynol<ls noted, this dement, "would 
introduce a 'vhole new feature that had not been in the Act at the time 
these jurisdictions were covered and require an additional element 
of proof other than simply requiring a l<J-year period of compliance 
with the Act." 209 This section, indeed, raises new questions regarding 
bail-out criteria not only a.s to the sulbstantive requirements hut also as 
to proof. 

The Assistant Attorney General indicated his concern when he sug­
gested that "what one means by inhibit or dilute ... would be 
subject to a great deal of litigation." 210 He further expressed his ap­
prehension as to the constructive efforts requirements : 

<'<>'. See, e.g., Senate Hearings, January 27, 1982, Attorney General of the United States 
William French Smith. 

·'"'See "upra note 198. 
"""Id. 
a1o I d. 



59 

This is a requirement which does go well beyond existing 
law. It is also well to remember in terms of tJhe bail-out that 
the House bill calls for counties to show not only that they 
can meet these requirements but also all political sub-units 
within the counties and therefore you are talking, for bail-out 
purposes, aibout mammoth litigation that will demonstrate 
that "constructive efforts" have been made by all of these 
political subdivisions within the county as well as the county 
and that they have done whatever is necessary to insure there 
is no inhibition Oir dilution of minority vote. m 

The subcommittee believes that the introduction of these new ele­
ments will not aid in overcoming past discrimination even if they can 
be interpreted. The subcommittee does believe that they will generate 
considerable litigation of an uncertain outcome. A reasona,ble bail-out 
is the goal of the subcommittee, and when this element is weighed with 
that goal, the subcommittee must resolve that such reasonableness is 
lost. It agrees with Assistant Attorney General Reynolds' comment oii 
the obvious results of such. an enactment: 

It goes beyond determining a violation of the A.ct or the 
Constitution and would require in each bail-out suit full­
blown litigation as to ' whether or not tJhe «on duct of the 
methods of election had either a purpose or effect of . . . dis­
couraging minority participation. That is a very complex 
kind of litigation to go through in a bail-out.212 

The process of bail-out may become largely inelevant if the pro­
posed change in section 2 is adopted. Jurisdictions that may be suc­
cessful in seeking bail-out would be subject to suits under section 2 
by local plaintiffs dissatisfied with 'hail-out and would be required to 
relitigate the issue under the similar standard incorporated in the 
House version of section 2. 

VIII. CoNSTITU'l'IONALITY oF HousE LEGISLATION 

Completely apart from the public policy merits of the House-pro­
tposed amendments to the Voting Rights Act, the subcommittee be­
lieves that there are serious constitutional concerns about those 
changes. It is conceivable that the House-amendments could render 
substantial parts of the Voting Hights Act constitutionally in valid. 

A. SECTION 5 

The first concem relates to the "in perpetuity" extension of tho pre­
clearance obligations in ~:ection 5 of the Voting Rights Act. Unlike 
earlier "extensions" of the preclearance obligation which have been 
for limited periods, the House legislation would make this obliga­
tion permanent. Rather than only having to maintain "clean-hands" 
for a five-year period or a seven-year period (i.e. avoided the use of 
a prohibited "test or device" for that time), H.R. 3112 would impose 
a permanent obligation upon a covered state to secure the l){'rmission 

"Ll I d. 
"'"ld 



60 

of the Justice Department for proposed changes in election laws and 
procedures~ 

The constitutional foundation of the Voting Rights Act rested in 
large part upon its temporary and remedial nature. ·while recognizing 
that the Act was an "uncommon exercise of congressional power", the · 
Supreme Court in South Carolina v. Katzenbach nevertheless con­
cluded that: 

exceptional circumstances can justify legislative measures 
not otherwise appropriate.213 

While recognizing the intrusions upon traditional concepts of fed­
eralism by the Y oting Rights Act, the Court upheld the pre-clearance 
procedure as a purely remedial measure premised upon the enforce­
ment authority of Congress under section 2 of the Fifteenth Amend­
ment.214 

It is difficult for this subcommittee to understand how such ·circum­
scribed authority in Congress can justify a permanent extension of 
this "uncommon exercise" of legislative power. If the justification for 
the Voting Rights Act..is the exibtence of !'exceptional" circumstances 
in the covered jurisdictions (primarily in the South) as stated by the 
Court in Katzenbach, and rmterated more recently in Oity of Rome v. 
United States,215 by what authority is Congress able to enact legisla­
tion requiring permanent pre-clearance~ "Exceptional" circumstances, 

. by very definition,·cannot exist in perpetuity. The proposed House bill 
attempts to institutionalize an extraordinary relationship between the 
states and Congress-one upheld by the Court only to the extent that 
Congress concluded that that "exceptional" circumstances obtained in 
certain parts of the .country. As Attorney General William French 
Smith remarked: 

The Supreme Court in sustaining the Act took special care 
to note the temporary nature of t:!he special provisions.216 

In the view of the subcommittee, reasonable individuals can differ 
with respect to whether or not "exceptional" conditions continue to 
exist within covered jurisdictions with regard to the status of voting 
rights and, hence, whether or not a further temporary extension of the 
preclearance obligation can be justified. It is extremely difficult, how­
ever, fur the subcommittee to conclude that such conditions require 
a permanent re-ordering of the federal structure of our government. 

Ms. Hinerfeld, representing the League of 1Vomen Voters, for exam­
ple, testified that: 

The extraordinary conditions that existed at the time of 
Katze1ibach, of course, are not the conditions that exist today 
and I think that we are all grateful rfor that fact. 217 

.. , 383 u.s. 301, 334 (1966) . 
214 Id. 
""'446 u.s. 156 (1980). 
21• Senate Hearings, January 27, 1982, Attorney General of the United States William 

French Smith. 
211 Senate Hearings, January 27, 1982. Ruth Hinerfeld, President, League of Women 

Voters. 



61 

While such figures are not conclusive, it is interesting to note that 
registration rates :for minority voters in such covered states as Ala­
bama, Louisiana, Mississippi, and South Carolina exceed the average 
national minority registration ·rate. · 

CHART B-REPORTED REGISTRATION FOR STATES, BY RACE 

(In percent) 

State 

Alabama- ------------------ ------- ----- -- ---- -- ------------------------Alaska _____ ______ _____ ____ __ _____ ____ __ _________________ . ______________ _ 

.Arizona- --------------------------- ------------------------------------Arkansas _____ _______________ ___ ______________________________________ _ 
California __ _______________ __ __ ___ ---- -- _______________________________ _ 
Colorado _________ ____________ _________________________________________ _ 
Connecticut_ _________________ _______ ___________________________________ _ 
Delaware __ ____ __________ ------ ______ ____________ - - ---- _______________ _ 
District of Columbia _______ ____ __ __ ... -" __ ___ ___________ ------ ___________ _ 
Florida _________________ _______________________________ ____ ______ ------

~~~:il.~~~ =~~~~~=~=~=~ =~= ~=~=~===~=~===~=~=~=~=~=~=~=~= :::::: :::: :: :::: Idaho ____ ________ ____ __________ __ __ __ _____ __________ ______ ______ ___ ___ _ 
Illinois _______ ____________________________________________________ _____ _ 
Indiana ____________________ ________________________________ -------- ___ _ 
Iowa ____ ____ __ ______________ __ __________ ------ ______________________ --. 
Kansas __ __ ______ __ ____ __ ________ ________ ________ ______ __ __ ___________ _ 

~~~i~~~~~= ~ ~ ~ :: :::::~:::::: :::::::::::::: ====~= :::::::::::::::: =~ ==~= :: 
Maine __ _______ ________ ___ ------------ ------------------------- --------Maryland _____________________________________________________________ _ 
Massachusetts __________________ ___ _____________________ _______________ _ 
Michigan ___________________________________ ___ ___ _________________ ____ _ 

~~~r~~rr~!=::::::::::::::::::::::::::::::::::::::::::::::==~~========== Montana. _________ _____ ____ ______ _____ ___ -------- _____ _____ ___________ _ 
Nebraska ____________________________________________________ ____ _____ _ 
Nevada _______________________________________________________________ _ 

~:: ~:r~f;_~i:~~:: :::::: :::::: :::::::::: :::: :::::: :::: :: :::::::::::: :::: New Mexico _________________ _________ ____ __________ _____ __ ________ ____ _ 
New York ________________ ____ __ __ __ _____________________________ ______ _ 
North Carolina ________ __ ____ ___________________________________________ _ 
North Dakota. ____________ ________ ___________ ___ _______________________ _ 
Ohio __ ; ________ __ ___________ ___________ _______________________________ _ 
Oklahoma __________________ ______ _____ _____ ______________ _____________ _ 
Oregon. ___ ____________________ ---- -------- --- - -- -- -- -- __ ---------- ----Pennsylvania __________________________________________________________ _ 
Rhode Island _____________________________ ------ ______ _________________ _ 
South Carol;na _________________ ______ ___ __________ _____________________ _ 
South Dakota. _________________________________________________________ _ 
Tennessee ______________________ , ____ __________ ---- ______ _____________ _ 
Texas _________ __ ___________________ ------------------------------ ------Utah _________________________________ _________________________________ _ 

~r:gT~~~~ ~= == :: =~ :::: :::: :: :::::::::::: :: :: :::::: :::::: :::: :: :::: :: :::: 
Washington _______________ ~------------ ---------------------------------

:~s~~~rr~~= :: :::: :: :::: :::::: :::::: :::: :::::::::: :: :::: :: :::: :::::::: 
Note: Numbers represent census estimates. 

Source: Bureau of the Census, Department of Commerce, NovembP.r 1980. 

White registration Black registration 

73. 3 62.2 
69.7 -----------------· 
59.4 ------------------
67.4 62.6 
62. I 61.5 
69. 9 ------------------
73.2 65.4 
67.8 -- ------ ----------
67. 0 52. 4 
64. I 58. 2 
67.0 59. 5 
65.5 -------------------
73.6 -------------- ----
74. 0 72.1 
69. 7 64. 2 
76. 4 ------------------
71.0 40.3 
67.7 49. 9 
74. 5 69.0 
81.4 ------ ------ -- -- --
68. 3 61.3 
73.4 43. 6 
73.9 68.-4 
83. 8 -------- ------ ----
85.2 72. 2 
75. 5 77.0 
74.7 ---------------- --
72.4 ---------- --------
55,2 ------------ -- ----
74. 1 ------------------
69.8 48.9 
68. 3 -------- -- -- ------
62. 4 46.5 
63. 7 49. 2 
92.1 ------ -------- -- --
66.5 68. 3 
67. 7 51.9 
73. 7 ------------------
61.9 66. 6 74. 2 ______________ , __ _ 
57.2 61.4 
81.9 -------------- ----
66. 9 • 69.4 
61.4 56.4 
77. 4 ---------------- --
73. 6 ------ ------------
65. 4 49.7 
67.8 70. 0 
69.5 ------------------
87. 8 70. 4 
64.1 --- ---------------

Minority registration, since the passage o:f the Voting Rights Act 
has risen substantially in every covered state. (chart C) In Mississippi, 
:for example, it has risen :from 6.7 percent in 1964 to 72.2 percent in 
1980, significantly surpassing minority registration rates in such non­
covered jurisdictions as New York ( 46.~ percent), New Jersey ( 48.9 
percent), and Kansas ( 40.3 percent). · · · ·· · 



62 

CHART C- VOTER REGISTRATION IN 11 SOUTHERN STATES, BY RACE: 1960 TO 1976 

(In thousands, except percent( 

Year and race Total Ala. Ark. Fla. Ga, La. Miss. N.C. S.C. Tenn. Tex. Va. 

1960: White ________________ 12,276 860 518 1, 819 I, 020 993 478 1, 861 481 1,300 2, 079 867 
Black________________ 1, 463 66 73 183 180 159 22 210 58 185 227 100 
Percent white ____ _____ 6Ll 63.6 60.9 69.3 56.8 76.9 63.9 92. 1 57. 1 73.0 42.5 46. 1 
Percent black _________ 29.1 13.7 38.0 39. 4 29. 3 3Ll 5. 2 39.1 13.7 59. 1 35. 5 23. 1 

1976: 
Wh ite ___ _____________ 21,690 I, 544 817 3,"480 1, 703 I, 445 866 2, 137 828 1, 886 5,191 I , 796 
Black . . ______________ 4,149 321 204 410 598 421 286 396 285 271 640 317 
Percent white _________ 67.9 79. 3 62. 6 61.3 65.9 78.4 80.0 69. 2 58.4 73. 7 69. 1 61. 7 
Percent black _________ 63. I 58.4 94. 0 61.1 74. 8 63. Q 60.7 54. 8 56.5 66. 4 65.0 54. 4 

Source : Voter Education Project, Inc., Atlanta, Ga., "Voter Registration in the South," issued irregularly. 

Again, it is important to emphasize that such data is not presented 
to suggest that no extension of the preclearance obligation is war­
ranted. Few would argue that all traces of the discriminatory his­
tory that existed in some of these covered jurisdictions has been 
eradicated by the passage of years since the original Voting Rights 
Act. What they do suggest, however-quite clearly to the Sub­
committee-is that substantial progress has been made in these juris­
dictions in the past 17 years with regard to voting rights. However 
many more years of pre-clearance are necessary, there should properly 
come a time when this "exceptional" remedy will no longer be neces­
sary. 

Mr. Leverett testified that the extension of section 5 in perpetuity 
would raise serious constitutional que;..stions: 

Making it permanent, as H.R. 3112 purports to do, subject 
only to a bailout procedure that is so stringent that I think 
hardly any political subdivision could ever satisfy it, does 
raise serious questions because the Act was justif-ied on the. 
basis of the emergency that existed and the fact that there 
was such a great disparity in the number of minorities that 
were registered. 'V ell, the predicate of that no longer exists. 
Minority registration has become quite substantial since that 
time.21s 

The subcommittee agrees· that indeed serious constitutional ques­
tions are presented by the proposal to extend section 5 in perpetuity. 

To proponents of H.R. 3112 who "·oulcl argue that new bail-out pro­
visions mitigate the permanent nature of the new preclearance obliga­
tion, the subcommittee responds that this would be the case only if 
the bail-out were reasonably designed to afford an opportunity for 
release :from preclearance by those jurisdictions within which "ex­
ceptional" circumstances no ]ono:er existed. The subcommittee be­
lieves strongly that such is not the case. As discussed in more detail 
above,219 it is our view that the bail-out in H.R. 3112 is wholly un­
reasonable and affords merely an illusory opportunity to be released 
from coverage. 

2lB Senate Hearings, February 4, 1982, E . Freeman Leverett, Attorney, Elberton, 
Geore:ia. 

2 " See generally supra Section VII. 



63 

In this respect, the subcommittee notes the observation of Assistant 
Attorney General Reynolds in response to a question about the likeli­
hood of jurisdictions bailing-out under the House measure: 

Our assessment is that there are very few, if any, jurisdic­
tions that would be able to bail-out of coverage for a consid­
erable period of time. 220 

No evidence of any kind has been shared with the subcommittee 
that would contradict this assessment of the "reasonableness" of the 
House bail-out. This is a critical matter since the very constitution­
ality of the proposed amendments-and indeed of the preclearance 
provision itself-----,r·ests upon such an affirmative finding. 

B. SECTION 2 

The other major constitutional problem ansmg from the Hous~ 
measure relates to the proposed change in section 2 which substitutes 
a results test for the present intent standard for identifying voting 
discrimination. 

The subcommittee notes as a preliminary consideration that this 
would overturn the ruling of the Supreme Court in the Oity of 
llfobile v. Bolden decision zn interpreting both section 2 and the Fif­
teenth Amendment (upon which section 2 is predicated) to require a 
finding of purposeful or intentional discrimination. It is a seriom; mat­
ter for Congress to attempt to over-rule the Supreme Court, particu­
larly when that action relates to a constitutional interpretation by the 
Court. As former Attorney General Bell has observed, for example: 

·My view, based on long experience in government and out 
is that the Supreme Court should not be overruled by Con­
gress except for the most compelling and extraordinary cir­
cumstances . . . To overrule the j}f obile decision by statute 
would be an extremely dangerous course of action under our 
form of government.222 

Completely apart from the public policy implications of overturning 
a Supreme Court decision, there are important questions relating to 
whether or not Congress has the Constitutional authority _ to under­
take such an action. Although section 2 of the Voting Rights Act has 
always been considered a restatement of the Fifteenth Amendment 
to the Constitution, it is, of course, true that Congress may choose to 
amend section 2 to achieve some other purpose. In other words, the 
subcommittee recognizes that section 2 need not be maintained indefi­
nitely as the statutory embodiment of the Fifteenth Amendment. 

To the extent, however, that the Supreme Court has construed 
the Fifteenth Amendment to require some demonstration of pur­
poseful discrimination in order to establish a constitutional violation, 
and to the extent that section 2 is enacted by Congress under the 

220 Senate Hearings, March 1, 1982, Assistant Attorney General of the United States 
William Bradford Reynolds. 

221446 U.S. 55 (1980). "No reader of the House report can fail to grasp that Section 2 
was written to make winners o · t of the losers in Mobile," Eastland, " Affirmative Vot­
ing Right s," The American Spectator, April 1982, p. 25. 

m Statement submitted to the Senate Subcommittee on the Constitution by Griffin Bell, 
former Attorney General of the United States, March 4, 1982. 



64 

constitutional authority of the Fifteenth Amendment, the subcom­
mittee does not believe that Congress is empower·ed to legislate out­
side the parameters set by the Court, indeed by the Constitution. 

Section 2 of the Fifteenth Amendment provides: 
Congress shall enforce the provisions of this Article by ap-

propriate legislation. 
Congress, however, is not empowered here or anywhere else in the 
Constitution to "define" or to "interpret" the provisions of the Fif­
teenth Amendment, but simply to "enforce" those substantive constitu­
tional guarantees already in existence. To allow Congress to interpret 
the substantive limits of the Fifteenth Amendment in a more expansive 
manner (or indeed in a disparate manner) than the Court is to sharply 
alter the apportionment of powers under our constitutional system of 
separated powers. 

It is also to enlarge substantially the authority of the Federal Gov­
ernment at the expense of the state governments sii1ce it must be 
recognized that the Fifteenth Amendment fundamentally involves a 
restraint upon the authority of state governments and a conferral of 
authority upon the Federal Government. To permit Congress itself 
to define the nature of this authority, in contravention of the Supreme 
Court, is to involve Congress in a judicial function totally outside its 
proper purview.223 

The enactment of a results test in section 2 would be equally im­
.proper to the extent that its proponents purported to employ the 
Fourteenth Amendment as its constitutional predicate. As with the 
Fifteenth Amendment, the Supreme Court has repeatedly made clear 
that it is necessary to prove some discriminatory motive or purpose in 
order to establish a constitutional violation under -the Equal Protec­
tion Clause.224 

·while proponents of the new result<; tent argue that selected Su­
preme Court decisions exist to justify the HpansiYe exercise of Con­
gressional authority proposed here m this subcommittee rejects these 
arguments. No Comt decision approaches the proposition be.ing ad­
vocated here that Congress may strike down on a. nationwide basis an 
entire class of laws that are not unconstitutional and that involve so 
fundamentally the rights of republican self-government guaranteed 
to each state under Article IV, section 4 of the Constitution. 

It must be emphasized again that what Congress is purporting to do 
in section 2 is vastly different than what it did in the original Voting 
Rights Act in 1965. In South Carolina v. Katzenbach, the Court recog­
nized extraordinary remedial powers in Congress under section 2 of 
the Fifteenth Amendment.226 Katzenbach did not authorize Congress 
to revise the nation's election laws as it saw fit. Rather, the Court there 
made clear that the remedial power being employed by Congress in 

.,., If the "on account of" race or color language In the ]'ifteenth Amendment is broad 
enough to permit the de1·elopment of the statutory results te"t undPr Its authority, this 
subcommitee wonders about the Implications for the proposed Equal Rights Amendment to 
tho Constitution ("Equality of rights under the law shall not be denied or abridged 
by the United States or by any State on account of sex:') Compare also the Nineteenth 
and Twenty-Sixth amendments. 

""See, e.g., Waslvington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights 1'. 
Metropolitan Housing Development Authority, 429 U.S. 525 (1977) ; Massachusetts v. 
Feeney, 442 U.S. 25G (1979); Mobile v. Bolden, 44G U.S. 55 (1980). . 

""'See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966) ; Oregon v. Mitchell, 400 U.S. 
112 (1970) ; City o!llome v. United I:Jtates, 446 U.S. 156 (1980). 

''0 383 U.S. at 334. 



65 

the original Act was founded upon the actual existence of a substan­
tive constitutional violation requiring some remedy. In Katzenbach, 
following a detailed deBcription of a history of constitutional viola­
tions in the covered jurisdictions, Chief Justice Warren concluded 
that: . 

Under these circum8tances, the Fifteenth Amendment has 
clearly been violated. 227 (emphasis added) 

While Katzenbach and later City of Rome held that the extraordi­
nary powers employed by Congress in section 5 were of a clearly 
remedial character, and therefore justified the extraordinary proce­
dures established in section 5, there is absolutely no record to suggest 
that the proposed change in section 2 involves a similar remedial exer­
cise. Because section 2 applies in scope to the entire Nation, there 
is the necessity of demonstrating that the "exceptional" circum­
stance._<; found by the K atzenbach court to exist in the covered­
jurisdictions in fact permeated the entire Nation (although again by its 
very definition the concept of "exceptionality" would seem to preclude 
such a finding) . 

There has been no such evidence offered during either the. House 
or Senate hearings. Indeed, the subject of voting discrimination 
outside the covered jurisdictions has been virtually ignored during 
hearings in each chll!mber. Indeed as the strongest ll!dvocates of the 
House measure themselves argued, a proposed floor amendment to ex­
tend preclearance nationally was "ill-advised" because no factual 
record existed to justify this stringent constitutional requirement.228 

During one exchange, Dr. Flemming, the Director of the U.S. 
Civil Rights Commission acknowledged that the 420-page, 1981 
Report of the Commission on voting rights violations 229 con­
tained no information whatsoever about conditions outside the cov­
ered jurisdictions.230 In the total absence of such evidence, it is im­
possible for Congress to seriously contend that the permanent, nation­
wide change proposed in the standard for identifying civil rights 
violations is a "remedial" effort. As a result, there can be little doubt 
that such a change is outside the legislative authority of Congress. In 
short, it is the view of this subcommittee that the proposed change in 
section 2 is clearly unconstitutional, as well as imprudent public 
policy.231 

• • 

Moreover, -a retroactive results test of the sort contemplated m the 
House amendments to section 2 (the test would apply to existing 
electoral structures as \Yell as changes in those structures) has never 
been approved by the Court even with regard to jurisdictions with a 

"'
2

' ld. """See. e.g., remarks of U.S. HepresentatiYe James Sensenbrenner, at H697G; U.S. Rep-
resentative Peter ·Rodino, at H697G; U.S . Representative Mickey Leland, at H6978; Octo­
ber 5·, 19-81, Congressional Record. 

22• The Voting Rights Act: Unfulfilled Goals, United States Commission on Civil Rights 

(l~~ 1denate Hearing•, February 25, 1982, Dr. Arthur Fleming, Chairman, United States 
Civil Ri~hts Commission . . . 

""' 'l'he Subcommittee would a lso ohHerYe that many of the same consbtutional Issues 
r •lised in the context of Section 2 ha,·e also been raised in the context of legislation to 
o~·erturn the Supreme Court's abortiun decis_ion_in Roe " · .ll:"a<le .. In both inst.}nces, Con­
gre•s is purporting to - reint~rpret a consbtutwnal pr~H'ISIOn . 111 contravenbon of. the 
Supreme Court through a simple statute .. See, e.g .. te~hmony by Robert Bo!~· Hear.mgs 
B~fore the Separation of Powers Subcommittee on S. 1:>8, June 1, 1981; AdditiOnal views 
of u.S. Senator Orrin G. Hatch. ·committee Print of the Subcommittee on the Separation of 
.Powers on S. 158, 97th Congress. 1st Session. 



66 

pervasive history of constitutional violations. In South Carolina v. 
K atzenbach, the prospective nature of the section 5 process (applicable 
only to changes in voting laws and procedures) was essential to the 
Court's determination of constitutionality. 232 This was closely related 
to findings by Congress that governments in certain areas of the 
country were erecting ne'W barriers to minority participation in the 
electoral process even faster than they could be dismantled by 
the courts. Thus, even with regard to covered jurisdictions, the Court 
has never upheld a legislative enactment that would apply the extra­
ordinary test of section 5 to existing state and local laws and pro­
cedures. 

One other general observation must not be overlooked. In its efforts 
to enact changes in the Voting Rights ACt that would lead to an effec­
tive reversal of jJf obile, the House invites the Federal judiciary to 
strike down an unidentified (and unidentifiable) number of election 
laws, some of recent vintage and some reaching back over centuries. 
The connection which any of these laws may have with actual viola­
tions of the Fifteenth Amendment, past,, present, or future, is left 
entirely to speculation. Without a far more dearly demonstrated con­
nection, it can only be concluded that the proposed amendment exceeds 
the power of Congress under section 2 of the Fifteenth Amendment, 
whatever one's constitutional theories are rubout the enforcement role 
of Congress under the Reconstruction Amendments and however inno­
vative a.nd creative one is in justifying exercises of Congressional 
legislative authority. 

Finally, there is a strong feeling among some of the members of 
the subcommittee that the proposed change in section 2 is unconstitu­
tional for one further reason. In short, the results test by focusing leg­
islative and judicial scrutiny so intensely upon considerations of race 
and color, completely apart from acts of purposeful discrimination, is 
offensive to the basic color-blind objectives of the Constitution gen­
erally anu of the Fourteenth and Fifteenth Amendments specifically. 
As Professor Van Alstyne has observed: 

The amendment must invaria.bly operate ... to create ra­
cially defined wards throughout much of the nation and to 
compel the worst tendencies toward race-based allegiances and 
divisions. 233 

The kinds of racial calculations required, for example, by the Justice 
Department in the events leading up to the case of United J e10ish Or­
ganizati0118 v. Oar·ey 234 is but an illustration of the rlepth of the racial 
consciousness injected into legislative decision-making by a results or 
effects test for discrimination.235 Under the proposed change in section 
2, this kind of racially-preoccupied decisionmakin,g process would be­
come the norm. Rather than pointing our nation in the direction of a 

"'" 383 U.S. at 334. 
"~' See supra note li'i!l. 
""' 4RO U.S. 144 (11,~76). 
"""Illustrative of this heightened racial consciou>ness is the rather remarkable observa­

tion of former Assistant Attorney General Days that minority identifiable neighborhoods 
alone would be immune to gerr)·manderlng e•·en if such gerrymandering were Indisputably 
~tnd incontrovertibly related to partisan or Ideological factors . Apparently with respect to 
such nPighhorhood,, thP rPsnlts test in SPCtion 2 wonld Impose a constitutional obligation 
npon Htate lf'd:-;lntur~:-; to nutximi :--e the impact and influP.n ce of :-;nch nt>i'!hl·orhoods. a re-

. markably privileged status accorded no other geographical neighborhood. See Senate 
Hearin_gs, F ebruary 12. 1982. Drew Da~·s, Professor. Yale 'School of Law. See a lso remarks 
of Julius Chambers, President. NAACP Legal Defense Fund, Inc. on the same day, in 
whlch,ll simllnr conclusion was. reached. Cf . .Mobile v. Bolden, 440 U.S. 5i'.i, 83 (concurring 
opinfon' by Justice Stevens). 



67 

"color-blind" society in which racial considerations -become irrele­
vant-as was the purpose of the original Voting Rights Act-the pro­
posed amendment to section 2 would move this nation in precisely 
the opposite direction. Considerations of race and color would become 
omnipresent and dominant. In the view of the subcommittee, this is 
inconsistent with either the purpose or· the spirit of the Fourteenth 
and Fifteenth Amendments to the Constitution. 

In conclusion, the subcommittee believes that the House-proposed 
amendments to the Voting Rights Act run substantially afoul of the 
provisions of the Constitution. On those grounds alone, they should be 
rejected. 

IX. RECOMMENDATIONS AND SECTION-BY-SECTION ANALYSIS 

The Subcommittee on the Oonstitution recommends to the full Com­
mittee on the Judiciary a ten-year extension of the temporary 
provisions of the Voting Rights Act without amendment. 'Dhis would 
represent the longest extension of these provisions in the history of 
the Voting Rights Act. In particular, the subcommittee would rec­
onunend the retention of the intent stanrlard in place of the new re­
sults standard adopted in the House-approved measure, and the ex­
tension of the preclearance procedure to covered jurisdictions for a 
period of ten years, rather than the permanent extension of these 
provis'ons adopted in the House-rupproved measure.236 'iVhile there is 
substantial sentiment on the subcommittee in favor of the develop­
ment of a "reasonable'' bail-out mechanism for jurisdictions that have, 
comported themselves in a non-discriminatory marmer for a sustained 
period of time, the subcommittee has not proposed a bail-out pro­
vision at this time becau~e of the substantial rlisagreement existing as 
to the constitution of a "reasonable" bail-out provision. Apart from 
its conclusion that the House-approved measure contains a wholly 
unreasonable bail-out, the subcommittee is not opposed to the develop­
ment of a fair bail-out mechanism at some subsequent stage of the 
legislative process. Under no circumstances, however, docs it believe 
that the preclearance procedure should be made permanent. 

Apart from the section 2 issu~ and the bail-out issue, s~veral oth_er 
matters of controversy were raised before the subcommittee. While 
there is sympathy among a number of members of the subcommittee 
for changes in law in these areas, it has nevertheless recommended that 
present law be maintained intact in order not to upset the consensus 
in behalf of that law. 

One of these matters is the question of the continuing requirement 
under section 203 (b) of the Act that certain jurisdictions be required 

"'"This recommenuation comports with the recommendations made by many leaders in 
the civil rights community during the House hearings. Benjamin Hooks, Executive Direc­
tor of the NAACP, t~stified for example. 

We support the extension of the Voting Rights Act ag It Is now written .... The 
Voting Rights Act Is the single must effective le!(islatlon 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. House Hearings, May 6, 
1981, at 58, 60, 65. 

Cf. also, remarks during House H~arlngs e.g. by Ralph Abernathy, Former Execu­
tivu mrector, Southern Christian Leadership Conference; Ruben Bonilla, National Presi­
dent. Leag ·e of U11ited Lotin A'"'' rican ('iti·,~ns: Vernon Jerdnn, Executive Director, Urban 
I,eague ("if It ain' t broke rlon"t fix it") ; Coretta Sc~tt King; Lane Kirkland, President, 
AFL-CIO. 



68 

to provide bilingual registration and election materials. 237 Senator 
Hayakawa testified against retaining this section. He cited various 
instances of the costs mandated by this provision noting that, in 
1980, for example, the State of California spent $1.2 million on hi: 
lingual election ma.terials.238 Other "·itnesses urged the retention of 
this provision, as did the Administration.239 

Another matter raised by several witnesses related to venue 
in preclearance and bail-out suits. Venue in such cases is currently re­
stricted to the U.S. District Court for the District of Columbia. 
Former Attorney General Griffin Bell noted, for example, with respect 
to such restricted venue: 

It is a departure from the equal protection of the law and 
a disparagement which stigmatizes judges in the regions 
covered by the Act to require that relief be sought only from 
judges in the District of Columbia.240 

Other witnesses, however, argued in behalf of retention of the 
present venue provisions.241 

. The final matter raised by some witnesses during the hearings 
related to whether or not a political subdivision of a state should be 
permitted to bail-out as a separate unit, apart from a covered state it­
self. In a recent Supreme Court decision,242 section 4 of the Act was 
construed to require that a political jurisdiction within a state be per­
mitted to bail-out only as part of a general state bail-out. Again, the 
subcommittee chose to retain current law. 

Changes in existmg law made by the bill, as repo~, are shown 
as follows: existing law proposed to be omitted is enctosed in black 
brackets, new matter is printed in italics, and existing law with re­
spect to which no change is proposed is shown in roman. 

VoTING RIGHTS Aar OF 1965 

PUBLIC LAW 89-110, 79 STAT 437 
AN ACT To enforce the Fifteenth Amendment to the Constitution of the United 

States, and for other purposes .. * * * • • 
""' See supra note 117. 
"as Senator Hayakawa also observed that the Bureau of the Census identifies minority 

population groups ·by surname, 
Now that does not necessa rily mean that the Individual with a Spanish surname or 

u Japanese surname cannot read, write, and s:Jeak l~ngJis.h. Some have been rooted 
here for generations and know only l':nglish .. . . Nowhere in the triggering mechanism 
is a persons ability to sveak English a ddressed. Nowhere does the A ct reQuire that a 
bilingual ballot be furnished only if the vo ~er cannot u"e the English language, what­
ever his surname may be. Senate Hearings, February 4, 1982, U.S. Senator S. I. 
.Hayakawa. 

See also House Hearings, June 2.3, 1981, J'.Iary Estill Buchanan, Secretary of State, 
Colorado. 

,., See, e.g., Senate Hearings, .January 27, 1982, Vilma Martinez, Executh·e Director, 
Mexican-American Legal Defense and }education ]'und; Fel:\ruary 25, 1982, Arnoldo Torres, 
Executive Director, League of United Latin American Citizens; February 4, 1982, William 
Clements, Governor of Texas. 

"'"Letter to the Senate Subcommittee on the Constitution from Griffin Bell, former 
Attorney General of the United States, March 4, 1982. See also Senate H earings, Janu­
an• 28, 1982, U.S. Senator Thad Cochran. 

"''See, e.g., Senate Hearings, January 27, 1982, Benjamin Hooks, Executive Director, 
NAACP; February 11. 1982, Dr. Arthur Fleming. Chairlllan, U.S . Commission on Civil 
Rights ("I think that Congre"s was wise In the beginning to decide tha t there were certain 
i••nes that could be more appropriately decided by a court here in the District of 
Columbia.") 

""City of Rome v. United States, 446 U.S. 1i:i6, 167 (1980) . A relatPd question is. of 
course, whether or not a state can bail-out independently of an.v political jurisdictions 
within it. The proposed House measure would bar a state from bail-out unless all of its 
countie" were also able to meet the bail·out standards. The logic here is difficult to under­
stand since. by the Rame line of reasoning, those Rtates in which only a handful of counties 
are covered, e.g. California, New York, Massachusetts, should be covered as states by 
virtue of that fact. 



SEC. 4. (a) To assure that the right of citizens of the United States 
to vote is not denied or abridged on account of race Ol' color, no citizen 
shall be denied the right to vote in any Federal, State, or local election 
because of his failure to comply with any test or device in any State 
with respect to which the determinations have been made under the 
first two sentences of subsection (b) or in any political subdivision 
with respect to which such determinations have been made as a separate 
unit, unless the United States District Court for the District of Co­
lumbia in an action for a declaratory judgment brought by such State 
or subdivision against the United States has determined that no such 
test or device has been used during the [seventeen] twenty-seven years 
preceding the filing of the action tor the purpose or with the effect of 
denying or abridgmg the right to vote on account of race or color : 
Provided, That no such declaratory judgment shall issue with respect 
to any plaintiff for a period of [seventeen] twenty-seven years after 
the entry of a fina.l judgment of any court of the United States, other 
than the denial of a declaratory judgment under this section, whether 
entered prior to or after the enactment of this Act, determining that 
denials or abridgments of the right to vote on account of race or 
color through the use of such tests or devices have occurred anywhere 
in the territory of such plaintiff. No citizen shall oo denied the right 
to vote in any Federal, State, or local election because of his failure 
to comply with any test or device in any State with respect to which 
the determinations have been made under the third sentence of sub­
section (b) of this section or in any political subdivision with respect 
to which such determinations have been made as a separate unit, 
unless the United States District Court for the District of Columbia 
in an ·action for a declaratory judgment brought by such State or sub­
division against the United States has determined that no such test 
or device has been used during the .[ten] seventeen years preceding 
the filing of the action for the purpose or with the effect of denying 
or abridging the right to vote on account of race or color, or in con­
travention of the guarantees set forth in section 4(f) (2): Provided, 
That no such declaratory judgment sha.Il issue 'vith respect to any 

- plaintiff for a period of [ten] seventeen years a;fter the entry of a 
final judgment of any court of the United States, other than the 
denial of a declaratory judgment under this section, whether en­
tered prior to or after the enactment of this paragraph, determining 
that denials or abridgments of the :right to vote on account of race 
or color, or in contravention of the guarantees set :forth in section 4 
(f) (2) through the use of tests or devices have occurred anywhere in 
the territory of such plaintiff. , · 

An action pursuant to this subsection shall be heard and determined 
by a court of three judges in accordance with the provisions of section 
2284-of title 28 of the United States Code and any appeal shall lie to 
the Supreme Court. The comt shall retain jurisdiction of any action 
pursuant to this subsection for five years after judgment and shall re­
open the action upon motion of the Attorney General alleging that a 
~tor dev~ce ~as been ~sed for the purpose or with the effect of deny­
mg or a;br1dgmg the nght to vote on account of race or color, or in 
contravention of the guarantees set forth in section 4(£) (2). 

If the Attornev General determines that he has no reason to believe 
that a~y such test or device has been used during the [seventeen] 



70 

twenty-seve1t ·years preceding the filing of an action under the first 
sentence of this subsection for the purpose or with the effect of denying 
or abridging the right to vote on account of race or color, he shall con­
sent to the entry orsuch judgment. 

If the Atton1ev General determines that he has no reason to believe 
that any such test or device has been used during the [ten] seventeen 
years pr<>_,reding the filing of an action under the second sentence of 
this subsection for the purpose or with the effect of denying or abridg· 
ing the right to vote on account of race or color, or in contravention of 
the guarantees set forth in section 4(f) (2) he shall be consent to the 
entry of suclh judgment. 

*· * * * * * * 
SEc. 203. (a) The Congress finds that, through the use of various 

practices and. procedures, citiJ~ens of language minorities have been 
effectively excluded from participation in the Plcctoral process. 
Among other factors, the denial of the right to Yotc of such minor­
ity group citizens is ordinarily directly related to the unequal edu­
cational opportunities afforded them, resulting in high illiteracy and 
low voting patticipation. The Congress decla.res that, in order to en­
force the guarantees of the fourteenth a.nd fifteenth amendments to 
the United States Constitution, it is necessary to eliminate such dis­
crimination by prohibiting these practices and by prescribing other 
remedial devices. 

(b) Prior to August 6 [1985] 1992, no State or political subdivision 
shall provide registration or voting notices, forms, instruction, assist­
ance, or other materials or information relating to the electoral proc­
ess, including ballots, only in the English htngmtge if the Director of 
the Census determines (i) that more than 5 percent of the citizens of 
.-oting age of such State or political subdivision arc members of a 
single language minority and ( ii) tha,t the illiteracy rate of such 
persons as a group is higher than the national illiteracy ra,te: Provided, 
That the prohibitions of this subsection shall not a.pply in any politi­
cal subdivision which has less than five percent votmg age citizens of 
each language minority which comprises over five percent of the state­
wide population of voting age citizens. For purpo;;e~ of this subsec­
tion, illiteracy means the failure to complete the fifth primary grade. 
The determinations of the Director of the Census nmlu this subsection 
shall be effective upon publipttion in the Fednal Hegister and shall 
not be subject to reYie\Y many court. 

* * * * * * 
X. CoNCLUSION 

For the foregoing reasons, the Committee on the Judiciary's Sub­
committee on the Constitution recommends the enactment of the- sub­
ject bill extending intact the Voting Rights Act of 1965. 

XI. CosT EsTIMATE 

Pursuant to section 252 (a) of the Legislative Reorganization Act 
of 1970 (Public Law 91-510), the subcommittee estimates that there 
will be minimal costs to the Federal Government resulting from the 
passage of this legislation. 



ATTACHMENT A 

QuEsTIONs AND ANsWERS: INTENT v. REsuLT 

The Voting Rights Act debate will :focus upon a proposed change 
in the Act that involves one o:f the most important constitutional issues 
to come before Congress in many years. Involved in this debate are 
:fundamental issues mvolving the naure o£ American representative 
democracy, :federalism, civil rights, and the separation o£ powers. The 
:following are questions and answers pertaining to this proposed 
change. It is not a simple issue. 

What is the major U8'/N3 i'fllj)olved. in the present Voting Rights Act 
debate.~ 

The most controversial issue is whether or not to change the standard 
in section 2 by which violations o£ voting rights are identified £rom the 
present "intent" standard to a "results" standard. There is virtually 
no opposition to extending the provisions o£ the Act or maintaining 
intact the basic protections and guarantees o£ the Act . . 

Who is proposi!ng to change the section 93 standard? 
Although the popular perception o£ the issue involved in the Vot­

ing Rights Act debate is whether or not civil rights advocates are go­
ing to be able to preserve the present Voting Rights Act, the section 2 
issue involves a major change in the law proposed by some in the 
civil rights community. Few are urging any retrenchment o£ existing 
protectiOns in the Voting Rights Act. The issue rather is whether or 
not expanded notions o£ civil rights will be incorporated into the law. 

What is section 93? 
Section 2 is the statutory codification o£ the 15th Amendment to the 

Constitution. The 15th Amendment provides that the-. right o£ citizens 
to vote shall not be denied or abridged "on account o£" race or color. 
There has been virtually no debate over section 2 in the past because 
of its noncontroversial objectives. 

Does section 93 apply only to "covered" ,iurisdictions? 
No. Because it is a codification o£ the 15th Amendment, it applies 

to all jurisdictions across the country, whether or not they are a 
"covered" jurisdiction that is required to "pre-clear" changes in voting 
laws and procedures with the Justice Department under section 5o£ 
the Act. 

What is the relationsip be&ween section~ and section 5.~ 
Virtually none. Section 5 requires jurisdiction with a history o£ 

discrimination to "preclear" all proposed changes in their voting laws 
and procedures with the Justice Departmrnt. Section 2 restates the 
15th Amendment and applies to all jurisdictions; it is not limited 
either, as is section 5, to changes in voting laws or procedures. Existing 

(71) 



72 

laws and procedures would be subject to section 2 scrutiny as well as 
changes in these laws and procedures. 

What is the present law with respect to section '2 fi 
The law with respect to the standard :for identifying section 2 (or 

15th Amendment) violations has always been an intent standard. As 
the Supreme Court reaffirmed in a decision in 1980, "That Amendment 
prohibits only purposefully discriminatory denial or abrid~ement by 
government of the :freedom to vote on account of race or color." Mobile 
v. Bolden446 U.S. 55. 

Did the Mobile case enact any changes in existing laws fi 
No. 'The language in both the 15th Amendment and section 2 

proscribes the denial of voting rights ':on account o:f" race or color. 
This has always been interpreted to require purposeful discrimination. 
Indeed, there is no other kind o£ discrimination as the term has tradi­
tionally been understood. Until the Mobile case, it was simply not at 
issue that the 15th Amendment and section 2 required some demonstra­
tion o£ discriminatory purpose. There is no decision of the Court either 
prior to or since Mobile that has ever required anything other than an 
"intent" standard £or the 15th Amendment or section 2. 

Ha.m't the Supreme Court utilized a results test prior to tlw 
Mobile decision.'~ 

No. The Supreme Court has never utilized a results (or an "effects'' 
test) £or identifying 15th Amendment violations. While proponents 
often refer to the decision o£ the Court in White v. Regester 412 U.S. 
755 to argue the contrary, this is simply not the case. White was not a 
section 2 case and it was not a 15th Amendment case-it was a 14th 
Amendment case. Further, White requirecl discriminatory purpose 
even under the 14th Amendment. That White required purpose 
was reiterated by the Court in Mobile and, indeed, it was reiterated by 
,Justice White in dissent in Mobile. Justice White was the author o£ the 
White v. Regester opinion. The term results appears nowhere in White 
v. Regester. There is no other court decision either utilizing a results 
test under section 2 or the Fifteenth Amendment. 

What is the standard for the 14th a1'JU'.ndment's equal protection 
clausd 

The intent standard has always npplied to the 14th amendment 
as well. In Arlington Heights v. }lfetropolitan A-uthMity, the Supreme 
Court stated, "Proof o£ a racially discriminatory intent or purpose is 
required to show a violation of the equal protection clause o£ the 14th 
amendment." 429 U.S. 253 (1977). This has been reiterated in anum­
ber o£ other decisions, Washington v. Davis, 426 U.S. 229 (1976); 
Mas.sachusetts v. Feeney, 442 U.S. 256 (1979). In addition, the Court 
has always been careful to emphasize the distinction between de £acto 
and de jure discrimin:ttion in the :trea o£ school busing. Only de jure 
(or purposeful) discrimination has ever been a basis for school busing 
orders. Keyes v. Denver, 413 U.S. 189 (1973) . 

What precisely is the "intent" standardfi 
The intent standard simply requires that a judicial fact-finder 

evaluate all the evidence available to hims;el£ on the basis of whether 



73 

or not it demonstrates some intent or purpose or motivation on the 
part of the defendant to act in a discriminatory manner. It is the tradi­
tional test for identifying discrimination. 

Does it require express confessi011s of intent to discriminate.'~ 
No more than a criminal trial requires express confessions of guilt. 

It simply requires that a jm1ge or jury be able to conclude on the basis 
of all the evidence available to it, including circumstantial evidence of 
whatever kind, that some discriminatory intent or purpose existed on 
the part of the defendant. Several major cases since Mobile have had 
no difficulty finding purposeful discrimination without a "smoking 
gun" or express confessions of intent. 

Then it does not requi1·e "mind-reading" as some opponents of the 
"intent" standard have S1tggested.'R 

Absolutely not. ''Intent" is proven without "mind-reading" thou­
sands of times every day of the week in criminal and civil trials across 
the country. Indeed, in criminal trials the existence of intent must be 
proven "beyond a reasonable doubt." In the civil rights area, the nor­
mal test is that intent be proven merely "by a preponderance of the 
evidence." . 

11 ow can the intent of long-dead legislators be deternidned under tlw 
present test? 

This has never been necessary under the 15th amendment. It is ir­
relevant what the intent may have been of "long-dead" legislators if 
the ·alleged discriminatory a·ction is being maintained wrongfully by 
present legislators. 

TVhat kind of evidence can be used to demonstrate "intent".'~ 
Again, literally any kind of evidence can be used to satisfy this re­

quirement. As the Supreme Court noted in the Arlington 11 eights case, 
"Determining whether invidious discriminatory purposes was a moti­
vating factor demands a sensitive inquiry into such circumstantial 
and direct evidence as may be available. 429 U.S. 253, 266. Among the 
specific considerations that it mentions are the historical background 
of an action, the sequence of events leading to a decision, the e.x1stence 
of departures from normal procedures, legislative history, the impact 
of a decision upon minority groups, etc. 

Do you mean that the actual impact 01' effects of an action upon 
minority groups can be considered under the intent test.'~ 

Yes. Unlike a results or effects-oriented test, however, it is not 
dispositive of a voting rights violation in and of itself, and it cannot 
effectively shift burdens of proof in and of itself. It is simply evidence 
of whatever force it communicates to the factfinder. 

Why are some proposing to substitute a new "results" test in sec­
tion13.'R 

Ostensibly, it is arg-nerl that voting rights violations are more dif­
ficult to prove under an intent standard than they would be under a 
results standard. 

11 ow important should that con-f!ideration be.'~ 
Completely apart from the fa.ct that the Voting Rights Act has 

been an effective tool for combating voting discrimination under 



74 

the present standard, it is debatable whether or not an appropriate 
standard should be fashioned on the basis of what facilitates success­
ful prosecutions. Elimination of the "beyond a reasonable doubt" 
standard in criminal cases, for example, would certainly facilitate 
criminal convictions. The Nation has chosen not to do this because 
there are competing values, e.g. fairness and due process. 

What is wrong with the results standard? 
First of all, it is totally tmclear what the "results" standard is 

supposed to represent. It is a standard totally unknown to present 
law. To the extent that its legislative history is relevant, and to the 
extent that it is designed to resemble an effects test, the mam 
objection is that it would establish as a standard for identifying sec­
tion 2 violations a "proportional representation by race" standard. 

What is meant by "proportio,nal r·eprmsentation by race"? 
The "proportional representation by race" standard is one tha.t 

evaluates electoral actions on the basis of whether or not they con­
tribute to representation in a State legislature or a. City Council or a 
County Comniission or a School Hoard for racial and ethnic groups 
in proportion to their numbers in the population. 

What ls 'wronr; with "proportional repre8entation by race"? 
It is a concept totally inconsistent with the traditional notion of 

American representative government wherein elected officials rep­
resent individual citizens not racial or ethnic groups or blocs. In ad­
dition, as the Court observed in M ob,ile, the Constitution "does not re­
quire proportional representation as an imperative of political orga­
nization." As Madison observed in the Federalist No. 10, a major ob­
jective of the drafters of the Constitution was to limit the influence of 
"factions" in the electoral process. 

Oompa.re then the intent and the results tests? 
The intent test allows courts to consider the totality of evidence 

surrounding an alleged discriminatory action and then requires such 
evidence to be evaluated on the basis of whether or not it raises a.Il 
inference of purpose or motivation to discriminate. The results test, 
however, would focus analysis upon whether or not minority groups 
were represented proportionately or whether or not some change in 
voting law or procedure would contribute toward that result. 

lVhat does the ter•rn "disc1•irninatory res1tlts" rnean.'R 
J,t means nothing more than is meant by the concept of racial 

balance or racial quotas. Under the results standard, actions would 
be judged, pure and simple, on color-conscious grounds. This is 
totally at odds with everything that the Constitution has been directed 
towards since the Reconstruction Amendments. Brown v. Board of 
Education, and the Civil Rights Act of 1964. The'term "discriminatory 
results" is Orwellian in the sense that it radically transforms the con­
cept of discrimination from a process or a means to an end into a 
result or end in itself. The results test would outlaw actions with a 
"disparate impact"; this has virtually nothing to do with the notion 
of discrimination as traditionally understood. 



75 

Isn't the "proportional r·epresentation by race" description an .ew­
trenw description? 

Yes, but the results test is an extreme test. It is based upon Justice 
Thurgood Marshall's dissent in the ll! obile case which was described 
by the Count as follows: "The theory of this dissenting opinion ... . 
appears to be that every 'political group' or at least every such group 
that is in the minority has a federal constitutional right to elect can­
didates in proportion to its numbers." The House Report, in discussing 
the proposed new "results" test, admits that proof of the absence of 
prop<;>rtional ·representation "would be highly relevant". 

But doesn't the proposed new section 2 language expressly state that 
proportional representation is not its objective? 

There is, in fact, a disclaimer provision of sorts. It is clever, but it 
is a smokescreen. It states, "The fact that members of a minority group 
have not been elected in numbers equal to the group's proportion of 
the population shall not, in and of itself, constitute a violation of this 
section." 

Why il! tkil! lwnguagc a "s·rnokescnen"? 
The key, of course, is the "in and of itself" language. In JJfobile, Jus­

tice Marshall sought to deflect the "proportional representation by 
race" description of his results theory with a similar disclaimer. 
Consider the response of the Court, "The dissenting opinion .seeks to 
disclaim this description of its theory by suggesting that a claim of 
vote dilution may require, in a<ldition to proof of electoral defeat, some 
evidence of 'historical and social factors' indicating that the group in 
question is without political influence. Putting to the side the evident 
factthat these guazy sociological considerations have no constitutional 
basis, it remains far from cer1.ain that they could, in any principled 
manner, exclude the cla.ims of any discrete group that happens for 
whatever reason, to elect fewer of its candidates than arithmetic in- . 
dicates that it might. Indeed, the putative limits are bound to prove 
illusory if the express purpose informing their application would be, 
as the dissent a.ssumes, .to redress the 'inequitable distribution of polit­
ical influence'." 

Ewpla.in furtheT? 
In short, the point is that there will n.Iways be an additional scin­

tilla of evidence to satisfy the "in and of itself" language. This is 
particularly true since there is no standard by which to judge any 
evidence except for the results standard. 

What additional evidence, along with evidence of the lack of pro­
portional representation, 'would suffice to complete a section 2 violation 
under the results test? 

Among the additional bits of "objective" evidence to which the 
House Report refers are a "history of discrimination", "racially polar­
ity voting" (sic), at-large elections, majority vote requirements, pro­
hibitions on single-shot voting, and numbered posts. Among other 
factors that have been considered relevant in the past in evaluating 
submissions by "covered" jurisdictions under section 5 of the Voting 
Rights Act are. clispa.rate racial registration fignres, history of English-



76 

only ballots, maldistrihution of services in racially definalble neighbor­
hoods, staggered electoral terms, some history of discrimination, the 
existenee of dual school systems in the past, impediments to third 
party voting, residency requirements, redistricting plans which :fail 
to "maximize" minority influence, numbers of minority registration 
officials, re-registration or registration purging requirements, ooo­
nomic costs associruted with registration, etc., etc. 

These factors have been used before.'~ 
Yes. In virtually every case, they have been used by the Justice De­

partment (or by .the courts) to ascertain the existence of discrimination 
in "covered" jurisdictions. It is a matter of one's imagination to come 
up with additional factors that could be used by creative or innovative 
courts or bureaucrats to satisfy the "objective" :factor requirement of 
the "results" test (in addition to the absence of proportional repre­
sentation). Bear in mind again that the purpose or motivation behind 
such voting devices or arrangements would be irrelevant. 

Summarize again the significance of these "objective" factoTs? 
The significance is simple-where there is a State legislature or a 

city council or a county commission· or a school board which does 
not reflect racial proportions within the relevant population, that 
jurisdiction will be vulnerable to prosecution under sootion 2. It is vir­
tually. inconceivable that the "in and of itself" language will not be 
satisfied by one or more "objective" factors existing in nearly any 
jurisdiction in the country. The existence of these :factors, in conjunc­
tion with the absence of proportional representation, would represent 
an automatic trigger in evidencing a section 2 violation. As theM obile 
court observed, the di&claimer is "illusory". 

But wouldn't you look to the totality of the circumstances? 
Even if you did, there would be no judicial standard for evaluation 

other than proportional representation. The notion of looking to the 
totality of circumstances is meaningful only in the context of some 
larger state-of-mind standard, such as intent. It is a meaningless no­
tion in the ~ontext of a result-oriented standard .. After surveying the 
evidence under the present standard, the courts ask themselves, "Does 
this evidence raise an inference of intent?" lJ nder the proposed new 
standard, given the absence of proportional representation and the 
existence of some "objootive" factor, a. prima facie (if not an irrebut­
table) case has been established. There is no need for further inquiries 
by the court. There is no ultimate, threshold question for the courts. 

Where 'wmtld the burden of proof lie 'under the "re8ults" test? 
Given the absence of proportional representation and the existence 

of some "objective" :factor, the effective burden of proof would be 
upon the defendant community. Indeed, it is unclear what kind of evi­
dence, if any, would suffice to overcome such evidence. In Mobile, for 
example, the absence of discriminatory purpose and the existence of 
legitimate, non-discriminatory reasons for the at-large system of 
municipal elections was not considered relevant evidence by either the 
plaintiffs or the lower Federal courts. 



77 

Putting aside the abstr-act principle for the moment, what is .the 
major objective of those attempting to over-rule "Mobile" and substi­
tute a "results" test in section 12? 

The immediate purpose is to allow a direct assault upon the major­
ity of municipalities in the country which have adopted at-large sys­
tems of elections for city councils and county commissions. This was 
the precise issue in Mobile, as a matter of fact. Proponents of the re­
sults test argue that at-large elections tend to discriminate against 
minorities who would be more capable ofelf'A:ting "their" representa­
tives to office on a district or ward voting system. In 11/ obile, the Court 
refused to dismantle the at-large municipal form of government 
adopted by the city. 

Do a-t-large systems of voting discr-iminate against minorities? 
Completely ~part from the fact that at-large voting for municipal ­

govemments was instituted by many communities in · the 1910's and 
1920's in response to unusual instances of corruption within ward sys­
tems of government, there is absolutely no evidence that at-large voting 
tends to discriminate against minorities. That is, unless the premise is 
adopted that only blacks can represent blacks, only whites can repre­
sent whites, and only hispanics can represent hispanics. Indeed, many 
political scientists believe that thee reation of black wards or hispanic 
wards, by tending to create political "ghettoes", minimize the influence 
of minorities. It is highly debatable that black influence, for example,. 
is enhanced by the creation of a single 90-percent black ward (that may 
elect a black person) than by three 30-percent black wards (that may 
each elect white persons all of whom will be influenced significantly 
by the black conununity). 

What else is wrong with the proposition that at-large elections are 
constitutionally invalid? 

First, it turns the traditional objective of the Voting Rights Act­
equal access to the electoral process-on its head. As the Court said in 
M'obile, "this right to equal participation in the electoral process does 
not protect any political group, however defin0d, from electoral defeat." 
Second, it encourages political isolation among minority groups; 
rather than having to enter into electoral coalitions in order to elect 
candidates favorable to their interests, ward-only elections tend to 
allow minorities .the more comfortable, but less ultimately influential. 
state of affairs of safe, racially identifiable districts. Third, it tends to 
pla.ce a premium upon minorities remaining geographically segregated. 
To the extent that integration occurs, ward-only voting would tend not 
to result in proportional representation. To summarize again by refer­
ring to Mobile, "political groups do not have an independent constitu­
tional claim to representation." 

What would be the impact of a constitutional or statutory rule pro­
scribing at-large municipal elections .'R 

The impact would be profound. In Mobile, the plaintiffs sought to 
strike down the entire form of municipal government adopted by the 
city on the basis of the at-large form of city council election. The Court 
stated, "Despite repeated attacks upon multi-member (at-large) legis-



78 

lative districts, the Court has consistently held that they are not uncon­
stitutional." If Mobile were over-ruled, the at-large electoral:;tructures 
of the more than two-thirds of the 18,000+ municipalities in the coun­
try that have adopted this form of government, would be placed in 
serious jeopardy. 

What will be ~he impact of the results te8t upon redistricting and 
reapportionment? 

.Redistricting and reapportionment actions also will be judged on the 
basis of proportional representation analysis. As Dr. W. F. Gibson, 
the President of the South Carolina NAACP, recently observed about 
proposed legislative· redistricting in that State, "Unless we see a re­
districting plan that has the possibility of blacks having the probability 
of being elected in proportion to this population, w~ will push hard for 
a new plan." Similarly, the Reverend Jesse Jackson has stated, "Blacks 
comprise one-third of South Carolina's population and they deserve 
one-third of its representation." Former Assistant Attorney General 
for Civil Rights Drew Days has conceded that minority groups alone 
will b~ largely immune to partisan or ideological gerrymandering on 
the grounds of "vote dilution". 

What is "vote dilution"? 
'}}he concept of "vote dilution" is one that has beE.m responsible for 

transforming other provisions of the Voting Rights Act ( esp. section 
5) from those designed to ensure equal access by minorities to the 
registration and voting processes into those designed to ensure equal 
electoral outcome. The right to register and vote has been significantly 
transformed in recent years into the right to cast an "effective" vote 
and the right of racial or ethnic groups not to have their collective 
vote "diluted". See, e.-g., Thernstrom, "The Odd Evolution of the 
Voting Rights Act", 55 The Public Interest 49. Determining whethe·r 
or not a vote is "effective" or "diluted" is generally determined simply 
by proportional representation analysis. 

Are there other constitutional issues involved w-ith section 2? 
Yes. Given that the -supreme Court has interpreted the 15th 

Amendment to r~uire a demonstration of purposeful discrimination 
in order to estabhsh a constitutional violation, and given that the 
Voting Rights Act is predicated upon the 15th Amendment, theTe are 
serious constitutional questions involved as to whether or not Con­
gr~ in section 2 can re-interpret the parameters of the 15th Amend­
ment by simple statute. Similar constitutional questions are involved 
in pending efforts by the Congress to statutorily overturn the Supreme 
Court's abortion decision in Roe v. Wade. As former Attorney Gen­
eral Griffin Bell has observed, "To overrule the· Mobile decision by 
statute would be an extremely dangerous course of action under our 
form of government." 

What is the position of the administration on the section 2 issue.'~ 
The administration and the Justice Department are strongly on 

record as favoring retention of the intent standard in section 2. Presi­
dent Reagan has expressed his concern that the results standard 
may lead to the establishment of racial quotas in the electoral process. 



79 

Press. Conference, December 17, 1!}81. Attorney General William 
French Smith has expressed similar concerns. 

Suwmarize the section 2 issue? 
The debate over whether or not to overturn the Supreme Court's 

decision in Mobile v. Bolden, and establish a results test for iden­
tifying voting discrimination in place of the present intent test, is 
probwbly the single most important constitutional issue that will be 
considered hy the 97th Congress. Involved in this controversy are 
fundamental issues involving the nature of Ameriean representative 
democracy, federalism, the division of powers, and civil ri~hts. By 
redefining the notion of "civil rights" and "discrimination ' in the 
context of voting rights, the proposed "results" amendment would 
t:vansform the objective of the Act from equal access to the ballot-box 
into equal results in the electoral process. A results test for discrim­
ination can lead nowhere but to a standard of proportional representa­
tion by race. 



ATTACHMENT B 

SELECTED QuoTEs oN SECTION 2 AND PRoPORTIONAL 
REPRESENTATION 

"The theory o£ the .dissenting opinion ["results" test] ... appears to 
be that every political group or at least every such group that is in the 
minority has a federal constitutional right to elect candidates in pro­
portion to its members ... The Equal Protection Clause does not re­
quire proportional representation as an imperative o£ political organi­
zation."- U.S. Supreme Court, Mobile v. Bolden (1980) 

"The fact that members o£ a racial or language minority group have 
not been elected in numbers equal to the group~s proportion o£ the 
population . .. would be highly relevant [under the propo:oed amend­
ment. J "- House Report 97- 227 (Voting Rights Act) 

''[Under the new test] any voting law or procedure in the country 
which produces election results that fail to mirror the population's 
make-up in a particular community would be vulnerable to legal chal­
lenge ... i£ carried to its logical conclusion, proportional representa­
tion or quotas would be the end result."-U.S. Attorney General Wil­
liam French Smith 

"To overrule the Mobile decision by statute ·would be an extremely 
dangerous course o£ action under our form o£ government."-Former 
U.S. Attorney General Griffin Bell 

"A very real prospect is that this amendment could well lead us to 
the use of quotas in the electoral process ... vVe are deeply concerned 
that this language will be construed to require governmental units to 
present compelling justification for any voting system which does not 
lead to proportional representation."-Asst. Attorney General (Civil 
Rights) William Bradford Reynolds. 

"Blacks comprise one~third o£ South Carolina's population and they 
deserve one-third o£ its representation."-Rev. Jesse Jackson, Colum­
bia State, October 25, 1981 

"The amendment must invariably operate . .. to create racially de­
fined wards throughout much of the nation and to compel the worst 
tendencies toward race-based allegiances and divisions."-Pro£. Wil­
liam Van Alstyne, Univ. of Cali£. School o£ Law. 

"The logical terminal point o£ those challenges [to Mobile] is that 
election districts must be drawn to give proportional representation to 
minorities."-Washington Post, April28, 1980 

"It seems to me that the intent o£ the amendment is to ensure that 
blacks or members o£ other minority groups are ensured proportional 
representation. I£, for example, blacks are 20 percent of the popula­
tion o£ a State, Hispanics 15 percP.nt, and Indians 2 percent, then at 
least 20 percent of the members of the legislature must be black, 15 per­
cent Hispanic and 2 percent Indian."-Pro£. Joseph Bishop, Yale Law 
School 

(80) 



81 

"The amendment is intended to reverse the Supreme Court's deci­
sion in Mobile ... if adopted, this authorizes Federal courts to re­
quire States to change their laws to ensure that minorities will be 
elected in proportion to their numbers ... Representative govern­
ment does not imply proportional representation."-Dr. \iValter Berns, 
American Enterprise Institute 

"Unless we see a redistricting plan that has the possibility of blacks 
having the probability of being elected in proportion to this popula­
tion in South Carolina, we will push hard for a new plan."-Dr. \iV. F. 
Gibson, President, South Carolina NAACP 

"Only those who live in a dream world can fail to perceive the basic 
thrust and purpose and inevitable result of the new section 2: it is to 
establish a pattern of proportional representation, now based upon 
race-perhaps at a later moment in time upon gender or religion or 
nationality."-Pro£. Henry Abraham, University of Virginia 

"I may state unequivocally for the NAACP and for the Leadership 
Conference on Civil Rights that we are not seeking proportional rep­
resentation . . . I think there is a big difference between proportional 
representation and representation in the population in proportion to 
[min<)rity] population."-Benjamin Hooks, Executive Director, 
NAACP 

"What the ·courts are going to have to do under the new test is to 
look at the proportion of minority voters in a given locality and look 
at the proportion of minority representatives. That is where they will 
begin their inquiry and that is very likely where they will end their 
inquiry. We will have ethnic or racial proportionality."-Prof. Donald 
Horowitz, Duke University La·w School 

"It would be difficult to imagine a political entity containing a sig­
nificant minority population that was not represented proportionately 
that would not be in violation of the new section."-Prof. Edward 
Erler, National Humanities Center 

"[The results test would require] dividing the community into the 
various races and ethnic groups the law happens to cover and trying 
to provide each with a representative."-Wall Street Journal, Janu­
ary 15, 1982 

"Equal access does not mean equal results ... [Under the amend­
ment] proportionate results have become the test of discrimination."­
Dr. John Bunzel, Hoover Institution (Stanford University) 

"The very language of the amendment proposed for Section 2 im­
ports proportional representation into the Act wht>,re it did not exist 
before."-Prof. Barry Gross, City College of New York 

"By making sheer numerical outcome 'highly relevant' as to the 
legality of a procedure, 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. Michael Levin, City 
College of New York 

"The proof [of discrimination under the amended section 2] is the 
nnmher of people who get elected."-U.S. Rep. Robert Garcia (New 
York) 



ADDITIONAL VIEWS OF SENATOR DECONCINI AND SEN­
A'l'\OR LEAHY ON S. 1992, THE VOTING RIGHTS ACT 

The Constitution Subcommittee majority offered r.t the markup of 
S. 1992, on Mar-ch 24, 1982, a draft report styled in the name of the 
f~ll Judic.iary Committee and supporting the views of the Subcom­
mittee maJority. 

We believe that the most orderly procedure is for the bill to pro­
ceed promptly to the full Committee and for the supporters of S. 1992 
in its original version (the bill adopted hy the House of Representa­
tives) to file either a majority or minority Report, depending on the 
outcome of the full Committee vote. 

It serves no purpose to del·ay the transmission of the bill to the full 
Committee. The views of the undersigned are therefore filed in very 
swnmary form, with the caveat that ''"e do not purport to speak finally 
on behalf of those Senators on the ~ full ·Committee who may support 
S. 1992 in its original form and who will want the opportunity to file 
a complete and well documented 'Report after markup. 

SEcTIOX 2 CoMMENTS 

On March 24, the Subcommittee on the Constitution voted unani­
mously to report S. 1992 :liavorably to the full Committee. However, 
an amendment to S. 1992, which we opposed, was adopted prior to the 
bill's being r•eported by the Subcommittee. 

The amendment changed the language of S. 1992 relating to Sec­
tion 2 of the Voting Rights Act of 1965. It also dekted from S. 1992, 
the provisions which created the opportunity for covered jurisdictions 
to "bail out" from under the preclearance obligations of Section 5 of 
the Act, in August of 1984. 

As the Report notes, the central issue before the Committee is how 
the Congress will clarify the reach of Section 2 of the Voting Rig-hts 
Act. There are Hve ma.in points on which we fundamentally differ 
with the analysis of this issue in the Report: 

1 . THE HO"LSE WO"LLD HESTORE THE PRIOR LEGAL STANDARD 

The proposed amendment to Section 2 in the House-passed bill 
'Yould restore the results test to election discrimination cases. The 
Report claims that this "results" test is a new, unpr~cedented standard 
which would be a radical departure from the law that had governed 
challenO"eS to electoral systems in the past. That is demonstrably un­
true. The new lang-uage would clarify the current confusion by restor­
ing the legal standard for such cases which was in effect for almost a 
decade. 

(82) 



83 

2. THE HOUSE BILL WOULD RESTORE A STANDARD WITH A "WELL DEVELOPED 

BODY OF PRECEDENTS 

The Report claims that a "results test" under Section 2 would create 
great doubt and uncertainty about. the appropriate legal standard. 
In :fact, the proposed amendment to Section 2 would codify a test ap: 
plied with no suggestion of difficulty in over two dozen Courts of Ap­
peals decisions across the country. The touchstone would be straight­
forward: whether minorities had a :fair opportunity to participate in 
the political process? 

3. THE RESULTS STANDARD WOULD FOCUS ATTENTION ON WHETHER AN 

ELECTION SYSTEM WAS FAIR, AND AWAY l<'ROM ANY INQUIRY INTO RACIST 

MOTIVES 

I 
The Report suggests that the Results Standard would exacerbate 

racial tension in local politics. On the contrary, it is tlhe "intent test" 
which, by d~finition, would require the courts to determine whether 
a public offibal or official governing body had acted out of racist mo­
tives. Long trials would focus on that divisive inquiry. By contrest, 
the "results test" would avoid that problem by focusing on whether 
minorities are unfairly excluded from equal access to the process under 
the particular system in question. 

4. 'l'l-IE "RESULTS TEST" WOULD NOT TURN ON THE OUTCOME OF LOCAL 

ELECTIONS OR UEQUIRE PHOPORTIONAL REPRESENTATION 

The Report claims that the "results test would make local electoral 
systems unlawful if the election result did not mirror the percentage 
of minorities in the electorate." The Report suggests that plaintiffs . 
could win by such a statistical showing, and that they could thereby 
raise the specter of racial quotas in electoral politics. 

The Report studiously avoids the clear record under the "results 
standard" which S. 1992 would adopt. As discussed more fully below, 
two Supreme Court decisions and some two dozen Courts of Appeals 
cases make absolutely clear that there is no right to proportional rep-
r~sentation under t~is standard,_ eithe~· as ~ me_asurement of th~ vi~la· ~~ . . 
bon or as the reqmred remedy if a vwlatwn IS found. The mmontY"-.~ 
joins the majority in rejecting proportional representation as either,{_ -"\' ~ 
an appropriate standard for complying with the Act or as a proper~ 
method of remedying adjudicated violations. No witness who testified· . 
before the Subcommittee advocated proportional representation. And ~ 
we must point out that the "results test" of S. 1992 would not lead to '-'ev ~ 
or require proportional representation. 

5. THE AMENDED V\NGUAGE OF SECTION 2 IS A CONSTITUTIONAL EXERCISE 

OF CONGRESSIONAL POWER 

The Report questions the constitutionality of S. 1992 on the grounds 
that Congress cannot overturn the Supreme Court's reading of the 14th 
and 15th Amendments in the Mobile v. Bolden case. 

We agree that Congress cannot and should not overturn the 
Supreme Court's interpretation of the Constitution. 



84 

But it is absolutely clear that Congress can pass legislation at the 
statute level to enforce the rights protected by those Amendments and 
that such statutes may reach beyond the direct prohibitions of the con­
stitutional provisions themselves. That is now hornbook law, as re­
cently reviewed in an opinion of Chief ,Justice Warren Burger. . 

The heart of the issue is sharply focused by one crucial paragraph 
in the Subcommittee Report. In section VI (c), the Heport claims that 
the "results test" assumes that "race is the predominant determinant of 
political preference." The Report notes that in some cases racial bloc 
voting by the majority is not monolithic and minority candidates re­
ceive substantial support from white voters. Mayor Tom Bradley of 
Los Angeles being an obvious example cited by Attorney General 
Smith. 

That is precisely the point. In most communities, that is true, and 
in such communities it would be virtually impossible for plaintiffs to 
show they were effectively excluded from a fair access to the political 
process under the results test. Unfortunately, there still are some com­
munities in our nation where racial politics do dominate the electoral 
process-at least with respect to the ability of the minority voters to 
exercise meaningful influence on the selection of candidates of their, ~ ,., 

choice. ~" ~~ The results test makes no assumptions one way 01' the other about 
the role of racial political considerations in a particular community. ~ 
If plaintiffs assert that they are denied fair access to the political ~ 
process in part because of the racial bloc voting within which the sy ~ 
tem works, they would have to prove it. ~ 

, Proponents of the "intent standard" however, do presume that such "te."'i "'? 
racial politics no longer impact minority voters in America. The pre- )L ~ 
sumption ignores an unfortunate reality established by overwhelming !J -z.u, 
evidence at the Senate and House hearings. ~ ~ 

BAILOU'I' • ~ ~ct"" 
Although the Subcommittee reported a straight extension of the '.:S:. ' 

Act, without any changes in the bailout procedures, the Report urges '\ 
the full Committee to weaken the new bailout procedure afforded by 
S. 1992. This, too, is a critical issue. 

There is now virtual unanimity that Section 5 preclearance does 
not expire. Only the limitation on when jurisdictions may bail out 
"expires" in any sense. Minority voters are extremely concerned that 
the majority's extension could prove a hollow victory if an excessively 
easy bailout provision is enacted. Should the new bailout provision 
prove a sieve, it would constitute a back-door repeal of Section 5, since 
many communities where preclearance is still needed would be able to 
escape coverage. Yet,, that is precisely where the recommendations of 
the Report would take us. 

In order to understand the bailout issue, it is necessary to know the 
evolution of the bailout provision presently in S. 1!)92. Existing law -
permits jurisdictions to end their preclearance obligaton upon show­
ing they have not used a test or ?evicediscriminatorily for the desig­
nated number of years. In effect, 1t amounts to a calendar measurement 
of duration of Section 5 coverage from 1965. During the House hear-



85 

ings, Congressman Hyde noted that nothing that jurisdictions had 
done since 1965 would count under the existing bailout mechanism. He 
suggested a bailout should be provided that (1) would take account of 
the good behavior which some jurisdictions might be able to demon­
strate and (2) would give an incentive to others to fully accept minor­
ity political participation. He proposed a bailout scheme similar to the 
one now in S. 1992, under which jurisdictions would have to demon­
strate they had fully complied with the law for t:Jhe past ten years and 
also would have to show they had made constructive efforts to permit 
full participation by minorities in the political process. 

The witnesses representing minority·voters opposed such an addtion 
to the present law on the grounds that no real need for it had been 
established and that jurisdictions should not require any additional 
incentive to obey the law or to accept political participation by minor­
ities. 

Ultimately, howe\·er, in order to expedite passage of this vital meas­
ure and to ensure extension of the Voting Rights Act, proponents of 
the legislation agreed to support a compromise bailout provision which 
was developed by Representatives James Sensenbrenner, Hamilton 
Fish and Donald Edwards. It was based on, and substantially fol­
lowed the framework of, Representative Hyde's proposal although 
it differed in some important pa1ticulars from his final version. Thi:'i 
was a major and very difficult concession for the civil rights orga­
nizations representing the interests of millions of minority voters, as 
anyone famliar with the House proceedings is well aware. 

The "Sensenbrenner compromise bailout" was adopted by the Com­
mittet> nnd enn,cted bv the House. Several amendments to weaken it 
were defeated on the House floor by overwhelming margins after sub­
stantial debate. The House accepted the arguments of the architects of 
the Committee bill that the bailout provision was a fair and reasonable 
one, and that to loosen the standards further would be to risk crippling 
the continued effectiveness of Section 5. 

The House bill also modified the bailout procedure of the Voting 
Rights Act in another major respect. Under present Jaw, if a county 
is nnde.r Section 5 obligations because the entire State is under Section 
5, then that county must remain under Section 5 until the entire State 
has bailout. Individual jurisdictions may not bail out, regardless of 
how good their own record is. The new bailout provision of S. 1992 
permits any county to bailout individually, even if the State as a whole 
is not yet eli,gible to bail out. · 

Against this background, the Subcommittee Report accepts the 
arguments of Assistant Attorney General William Reynolds that the 
bailout passed by the House and which is included in S. 199~ is too 
strict. Indeed, the Report suggests it is an illusory bailout becausr, it 
is impossible to meet its terms. 

After citing Mr. Reynolds' assertion that in the foreseeable future 
no jurisdiction would be eligible to bail out under S. 1992, the Report 
goes on to state that: "No evidence of any kind has been shared with 
this Subcommittee that would contradict this assessment of the 'rea­
sonableness of the House bail-out'." 

That statement is flatly untrue. In fact, several witnesses presented 
expert testimony that a very substantial number of the counties pres-



86 

ently covered by Section 5 would be eligible to apply for bailout in 
the first year permitted by the statute, namely, 1984, and that addi­
tional numbers would become eligible in succeeding years-all prior· 
to the 199f3 expiration date imposed under the straight 10-year ex­
tension of S ection 5 as reported by the Subcommittee. 

Since the bailout provision inS. 1992 clearly is an achieveable stand­
ard, the suggestion in the Report that it would permanently impose 
Section 5 on the covered jurisdiction is without foundation, as are the 
constitutional arguments premised on that assertion. 

Indeed, the net effect of this change is to make it possible for those 
jurisdictions which have obeyed the law and accepted minority partici­
pation to remove themselves from Section 5 coverage well ahead of the 
1992 date imposed by the Subcommittee bill. 

0 











llnittb ~tatts ~tnatt 

MEMORANDUM 

'S. ~ 6)5 (77 tA) 
~ 27) J%2-/(~ /)'6 

') 

\Gv 


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