Houchins v. KQED, Inc. Brief of the National Newspaper Association et al.

    "" ‘ a“! M ' '

My concern 5 Ehat u wholly newsp- ‘
proach to voting is being created 2
under section 2. ”So it is simply not f
true that we are talking about a. l
simple extension of the 1985 Voting .
Rights Act. We are now entering into
an em. in the United States during
which. by set of Congress, we will
guarantee election results based upon
race.

I think people ought to reflect long
and hard as to whether we are head-
ing in a. gooidirectiomAnd. it we are. e
Mr. President, then I would query.
should we not also apply this principle
to sex. or religion. or national origin? I
query how far you can go with this
principle. Instead of guaranteeing the
right of every American to register
and to vote and to have that vote
counted. 3. right no American today in
this country. I think, would question.
should we now go‘doWn the perilous
path of guaranteeing election results?

We will the new standard the results ,
or effects test. as opposed to. the:
“misfit: if , ' . - .-- _.;;-._’ ‘

It all this is conjusinz WWI-8,0:
to anyone else trying tq follow thu-
'somex‘thstcomplex 13:0th 7018 I
are really voting for. if you, vote for
the bfitu-Jt- m withosztznmene -
mengis‘ to any them {mango

£180“:ngan elections’in this; f x
i try. Wuafisueh-s‘systcm would
‘ our electoral system andeculd consti- "
Jute. .31 fundamental. densrtme'Jrom '

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1 "June 17, 1982 CONGRESSIONAL RECORD -— SENATE “ ‘ 7 ' ' S6957

3? to nomination or electionin the State or 90' what they want to do is to leave open back to the Founding Fathers. the
liticai subdivision are not equally open to to the courts the option of imposing a whole Madisonian concept 0! democra~
Pm‘CmW” by members °‘ 3 “85‘ °‘ at" remedy based upon race or color—a cy, under which you have to build
”“3 ”maimed by subsection ‘8'" quota. ' broadbased constituencies and. repre-
The PRESIDING OFFICER W1“ When you talk about race relations sent them. Under our system. success-
.. the Senator from North Gamma in the United States. you enter into 9. {ul politicians build consensus and
please suspend? sensitive area. and it ought to be. But must mold their support together. Our
. The Senate isnot lnorder. Will Sen- we should be able to talk candidly President is forced to bring his sup—
7’5 3‘0“ please take their °°nyersaii°n3 about our problems in public. I think porters together. We can only elect
' "2" ‘0 “19 “WWW-The SEWER???“ the many great. dLstinzuished black one and to win he has to build a bi‘oad
' U... be heard. . " ""'VOtcrs"ln‘this country-Would show 001,11, consensus. Generally. we consider
4~ Mi- EAST- The “mime" “35" M" cern about altering the election proo- building'concénsusto‘ be a good idea. ..
President. under section (a) is com- ess to establish a quota. system {or the The problem with proportional repre.

posed of citizens Whose right to Vote beneilt Of aparticulu 01353. sentauon 13 that it Wm tend ’to frag-
has been denied 0' abridged on 30' For example. Mr. President. YO“ ment. tend to exacerbate differences
count or race °f ”1°" C0u1d turn the 00111 around. Let “8 835'. between races or religions or sexes. It

The “’5‘ thing the law does is to for example, that I am part 01 the m1‘ will not encour e harmon ' it will :1
create aprotected class of voters based noflty white population in a district bring people assume“ gownmnfifi
only . “9°“ race 01' 0°10" The ‘3‘“ then represented by one 01 the distin- - representation poses an interesting
describes what voting discrimination guished black Representatives m the problem. a {mmatmg one. And frank.
means. . House of Representatives. Let “8 say ly. the concept deserves more substan-
ln that its members have less opportunity that this legislator represented a dis- tive analysis than I have seen the pro-
‘1 Lfitlfigge meggep'gngfmilhpagcgcmmte t° trict that was 70 percent black and 30 ponents of this thing exhibit so m-
' percent white. - '
a Andtmsmhekevsentence- We might well contend it a white siiet‘é‘é‘ni‘iog‘l°§3§i£§‘$ x‘dfifii
“ and to elect representatives of their Gimme: had never been elected in such a dis- think so I think it is 5 ve}, ser‘ous
the extent to which members of a protected trict. if. year after year. 3 black were proposition. Some may wonder. “Siam,"

class h we be elected to office in the State ,
or poligttlcal sinbdlvision is one circumstance elected. that. would be evidence Of dls' tor. why do you want to make this

: which ma 'be considered; provided. that crimination. Such ‘3 not the case. N“ amendment? Why are you 01113 on
«3. nothing inythis section establishes a right to 3" 311° What would be evidence or (“5‘ this way? Why not just drop igt and let
have members at aprotected class elected in. culmination and violation of my rights us mum“ it through and be done
numbers equal to their proportion in the as a. white person under the 15th with it?” I tell you why Mr Fred.
population. amendment would be denial of my dent—because in a month.or 2'0, 3 of
The disclaimer that is in here. Mr. right to register. to vote. and, to have 6 or 2 or 4 or 5 or 6 years down the
President. deals with the very narrow my vote counted. But certainly. no one road all of this ,3 going to come into
problem or the right to totally equal would argue that I. as a single citizen. me 50m. and n ,5 going to come back
proportional representation. but what could expect to come into the courts to haunt the electoral process.
it does not rule out is the imposition and say my particular racial grouping Then the American people, who
of quotas. something less than that. or has been discriminated against it this probably are not following our '
the imposition o! proportional repre- only evidence 1 have to offer is that we debate-I do not blame them they are
sentation as a remedy by the courts. have not been successful at the polls. busy—are going to say how in the
BY the clear ““90“ 0f the language. it Think “0“" that. M" President. , world did we get this tormented mint!
..-, , yourcan show that the members of the This new approach is a large. quantum That Wm be 8 good question. I no 8
protected'class have not hadmembers. jumpbeyond the intent and the pur- we will hit the important issues ML
of their class elected, and it you can pose of the 15th amendment; lithe, rompmpomomr reprwmucm me
show any other scintilla of alleged dls- American people want to take such a need for consmmom memeng --___,, -— _
crimination, the court would clearly. lump. they ought to do so through & protected classes. and more tom
under the language of this act. be in a constitutional amendment and not

_ _‘ But to act so suddenly. so indirectly.
position to impose some sort of quota through a simple act 0f the 16:1318- without. substantive debate. reflection

in order to insure that a given election ture. ,
or consideration. I think is ill-advised
or election process is free from alleged Again. to try to put this whole for :5 Chamber that prides use]: on

discrimination based upon race or matter into persvective. why would we .
color.“ - , . . . 7 not. Mr. President. want to insure pro- :fmmlppigstegly tiled-greatest W
. . What does my amendment purport portional representation in the caseot ve y all“
_ to do? It purports. Mr. President: to sex? I look at this distinguished body.- M’- Pw‘ident. i Doint out that in
clarity. categorically.’ that no. court One hundred Members—98 men and 2 Federalist NO- 5’ where “78.113918 the
' ‘ may impose a. quota or» pmportional women. Are these numbers evidence of W“ principles °‘ °“’ Constitution 59" .
representation based. uponhrace or discrimination against women? Per- mm‘ by the Founding “that the ‘ -.
-. colorao-o- remedl ill--3 case brought have. r do not know. The problem is theoretical meaning ”id ”8813 i0? 0“!
"*"" .. . ,_' ' ' act. :, ~ . ’ ' -. that the 15th amendment gives every- system'Alexander Hamilton make it.
* ~ 1"mldt'sasnmcug-then; that every-_--ooa-mo.hgm to resist . to vote. and clear tin-t we shouid not have protect- .
Senator'- would be willing to support have’th‘at vote counted but, does not. “13"me “3.9135363 Like him I,
t 'Efliiondmenle-becausel dmany guarantee that a particular sex will believe“. proportional; representation 5.
vgmtwmw succeed at the polls. Maybe elsewhere... “mild. tend i0 13me factions and. ‘
' " ‘ * ’ AW'mnwbut not silhepollh, .. ' .- -. disharmony-Tile emote! estabusmnc
_mremtw =1 do not mean to malts light otthe truancy: principle it 3.0!“ to be.
. W problem. Proportional. representationaflim-WW 0mm 1“ WLWT
., gunmangoodides and perhaps wallets.” and the Univuniwfof Clinton
11. .. , to. clarifii‘wm, ought to think abdut*’introducing~itenint_hfl§4£§i£3te¢_jjnm~ enact
statutememidr Presidentisto into the electoral system 01 this coon. , commits over inflow . . -

 

 
 
  
 
  
  
  
  
  
  
  
  
  
 
 
 
  
  
  
 
 
 
  
 
  
   
   
    
 
 
  

 

 

 

       
 

     
   
 
  
    
   
  
 
  
      
 
 
 

 

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M up the lawihatacwrtoannot‘ Frey; Perhaps we should.set'_out..those, “i0“ in 9190“?“ We“ ”WWW“ ' .
. ‘ poseéiflomrtigmiztgmwnn as: .mtesonen tint-oughtto be reoresenh m “3’ “Men“ ”mm-“‘9'“? ~ -_._
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' ‘ ‘ " ' Europe thatrequire propel-sir, minis-sasetoynsieninnr ..

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. ._ . _ A . . 1:1:iieoteithisiaws: 4' ' .

snowmlidnpresl ' 111th“; _ lwmmiampoini-om m..—
~wnytzifeoae°l “ ' .. thudoubm- -' ‘ .

  

 

    

        
  
  
 
     

 

 
  
 

 

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S 6958

in the so-oalled affected States. of
which North Carolina is one—there
are 22 in all—this effects or results
test. is already being applied. It is
being applied in North Carolina today.
It has placed our election system in
North Carolina in considerable tur-
moil throughout this year because the
Attorney General's office has. through
the Civil Rights Division. been requir-
ing- that electoral district lina. be
drawn by the State legislature to
maximize the potential for black mi-
didates to win.

I have no objection to black candl-
dates winning. I think it is a fine idea.
I simply point out that you begin to
get into the troubled waters when you
require State and local governments so
to establish their legislative districts
as to guarantee certain election out-
comes—results or effects. as it is
. called—you make an enormous change
in the election process.

Mr. President. I shall be happy at
this point to hear a response from the
distinguished proponents of this meas-
ure. Am I under a delusion? Again. 1
submit. not on a fair reading of the
language or an examination of what
has happened in the affected States.

- We in the affected States have al-
ready seen what section 2 will do. The
principles of law that once applied ex-
clusively to us will now be extended
nationwide. That'is what is newrabout
what we are doing. Perhaps the propo-
nents of this legislation would like to
respond to our concern. If I might.
before I yield to the distinguished Sen-

CONGRESSIONAL RECORD — SENATE

In the newest Senate plan. Reynolds said
District 2 in northeastern North Carolina
with n black population of 51.7%. should
have been drawn to have a black population
of at least 55%.

And here is why. He said:

"Our analysis shows that during the
Senate Redistricting Committee‘s considera-
tion of this district it was widely recognized
that at least 55-": black population was nec-
essary it black voters were to have a reason-
able chance of electing a candidate of their
choice." ‘ ' '

Now. that is about as clear as you
can make it with the English lan-
guage. Where is William Bradford
Reynolds getting his authority? F‘rom
section 5 of the 1965 Voting Rights
Act. ‘Nhat are we about to do if we do
not amend the bill before us? We are
about to take that same standard and
put it in section 2 and make it apply
nationwide. .

What is the practical effect? Again,
to offer an invitation to the courts to
impose quotas as a remedy. There is
no question about it; this law is going
to jeopardize at-large elections. It is
going to jeopardize annexations. It is
going to jeopardize anything that
tends to "dilute minority voting
strength." Again. like every Senator in
this Chamber. I will happily support
any reasonably adopted rxieasure de-
signed to guarantee the right of
American citizens under the 15th
amendment to register and to vote and
to have that vote counted. but I

cannot in good conscience say I can
vote for, a bill that has a. provision

guaranteeing that a "protected class"
will be succesful at the polls.

June 17, 1.982

register and vote and have that vote
counted. There is not a single Member
of this Senate quarreling with that
principle. including myself. lest there
by any misunderstanding.

I should like to think that this body
is at its best when it deliberates and
discusses. and tries to get answers to,
hard questions. From the beginning 1
have been looking forward to this op-
portunity to’hear'Whal: can‘be said inw
defense of this law. why it is a good '
idea. how we could justify it.

I should like to quote an editorial
from my hometown paper. I note that
this paper is a very strong Democratic
paper. and. as I have previously said,
this paper supported John Kennedy
for President in 1960. I might even add
that it did not endorse your humble
servant when he ran for the Senate. as
it is a very strong Democratic Party
paper. The paper has this to say about
the problem I noted with section 5 of
the i965 Voting Rights Act.

It says:

Federal intervention into local and state
level elections was worthwhile. It was in—
tended to make certain that voting laws ap-
plied to all persons and that all persons had
an equal chance to vote. But the Justice De-
partment is now going beyond that tene-
ment in apparently calling for Just the re~
verse”. in this case, specific districts in which
blacks are guaranteed a suit. This type of
ddscrinunation is just the reverse of the dis-
crimination the 1965 Voting Rights Act was
iniendedtoerose. ' " "

I would agree. It is the long road we
are about to launch down. applying
sugh principles as a nationwide stand-
” .

."(e-

_n

"‘35:

ator from Maryland. make several
points about my home State. I should
like-to—talk tome Senatorsery briefly,
about. two matters there.

First. I quote from the Charlotte
Observer. '- quoting William Bradford
Reynolds in turn. who is head of the
Civil Rights Division in the Depart-
ment of Justice. See what Mr. Reyn-
. olds. acting under section 5. which apv
i .> < plies to the affected States. required
'~ in a letter to the State of North Caro-‘
lina listen to this letter; And thiivit
the effects or results test. as it applies

Therein lies the nub of the problem.
I repeat. ad nauseum. this is not a
furor of my imagination. Many. ..re-..
sponsibie scholars have pointed out
that this law will guarantee certain
election outcomes. and I note again
the best exhibit A I had—I do not
need speculation by prominent schol-
ars: I can point to it—is the situation
in the affected States. those 22 States.
But I do come here as one of your col-
leagues, to remind Senators that I rep-
resent one of these affected States; 40
counties in my State of 100 counties

  
  
  
  
  
  
 
  
  
 
 
  
   
   
 
 
 
 
  
  
  
 
  
  

I point out to my colleagues that
originally the’subcommittee of the J u-
diciary "COrnmittee’ that considereth-r» '
this measure did support the intents ,
test as opposed to an effects or results
test. These are very distinguished
Members of this body on that commit»
tee. However. the Judiciary Commit—
tee altered that approach. That is fine.
The gentlemen did what they thought
was the correct thing to do and
brought the bill into keeping with the.
House language. .

Of course. thlscannot be done. We

 

 

 

_gi ., nag-“ ' " , _ _ . ____ are subject to section 5. We have seen .
. I... .. _e . ‘ . - ”3» ->~--~-~ - whatwill happen. _ . _ _ have representative democracy. We do -
*I‘i'j““"‘”"m' *' We?“ mum-Mord -And_when I goihome and. they say, not have plebiscite democncv in this.
i he... _ of theeivilrigbtsdividon. “It. don‘t seem to make sense to me.” country. But I would feel very com-r ~
mu" “M majority db" 311411.11: say is. "I e," And then fortable myself. if we could ever have

      
  
 
   
 

      
 

when they ask. ”Yo mem'tbeyare, ,EIIBWIONB‘ 0n thither“! and get _ .
, going to apply that standard natioii-' ' votesThe' America: Noble, WW: ~
'-_- wide under section 279,! will have to as . categorically. overwhelmingly. ,_
* black and white; "We want to guaranrr .

'- we everydmerican momma. vote...

register to vote. have that counted out

. we want’m beireer from humiliating».

. and—hamsanLeneroisig! out
right. but. yes; we ought not: to so

._bwmd that and gun-antes certain: '

"election resultl'or etf‘actlmL ~

 

 

    

 

.. .. . . ‘- ~Ws=m3aldng magmatic leap
.;. ._ @Wmmnot bathetest but , Hie WWW-present. homage
agflnt an intent ‘ ouldrappirb-irrthiebm; and ”Withers

       
   
  

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I. '_ Whitman: to protect the; . . ..
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