Legal Research on Statement of Donald L. Horowitz Excerpts

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Section 2 would appl an effects standard to every State and lo-
cality in the United States, and even more important, it would
apply that standard to existing electoral arrangements, in fact, to
those that go back 50 or 100 years.

How, then, will we know when such an electoral law has a dis-
criminatory effect, if this section is enacted? In section 5, which ap-
plies only to changes in electoral law, we would know that by com-
paring minority representation the day before the change with mi-
nority representation the da after.

With section 2, on the ot er hand, there is no before and after
because it applies not merely to changes but to existing electoral
law. The only way to judge the effect will be to see whether minor-
ity voters have representatives in proportion to their population in
that jurisdiction. By what other standard could one possibly judge
dilution under section 2?

Therefore, despite the pious protestations of the proviso to the
amendment to section 2, ethnic and racial proportionality will
likely become the test of a discriminatory effect under section 2 be-
cause it will be the only way to judge a discriminatory effecfithis,

7%: we

0 Mi. Honowrrz. It is a mechanistic concept of the meaning v. ..--
vote because it equates the effectiveness of the vote with how many
representatives a particular minority oup elected that had the
same ethnic or racial identity as the e ectors. It is mechanistic in
the sense that it tests effectiveness by the ethnic or racial identity
of the representatives, not by whether the constituency, by wheth-
er the group, the voters, have power or influence.

As long as you elect representatives of the same ethnic or racial
identity, you are home free under the amendment to section 2. You
may have absolutely no power or influence in that jurisdiction. We
ought to be concerned with power and influence if we are con-
cerned with the effects of the vote.

Mr. MARKMAN. Wouldn’t pro nents of the results test suggest,
however, that you are oversimpliofying their test? You are oversim-
plifying it by looking at one component of their test. You are not
recognizing that fact that you do consider the totality of circum-
stances in making the section 2 evaluation.

Mr. Hoaowrrz. I am simplifying it. I am simpl' ' If it in exactl
the wa in which the courts are going to simp ‘ it ' it is enacted.

Mr. W. Could you elaborate on that, p ease?

Mr. Hoaowriz. As I said before, section 2 ap lies to noncovered
jurisdictions, which is to sav it applies to all of t e States and local-
ities of the United States. lt does not apply merely to jurisdictions
which have some history of discrimination.

Since that is the case, we have to then consider what the courts
are going to 'u e a dilution by. The standard is a dilution of
voting streng‘t . t is the standard under the effects test of sec-
tion 5; it is the standard that is going to be applied under section 2
if this amendment is passed.

When the courts come to judge a dilution, they will likely have
no before and afler to compare. They will be perhaps judging,_ as
the Mobile v. Bolden case had to judge, an electoral provision that
went back to the year 1911 when minority voters presumably were
not even voting in the city of Mobile.

Therefore, what standard will they have to judge a dilution by?
They will not be able to look at the day before a change and the
day afier. There may not be a chance. Accordingly, 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 the proportion of minority
representatives in a given locality.

That is where they will begin their inquiry; that is very like] i

where they will end their inqifl, and when they do that we
have ethnic or racial proportio 'ty. We will have a. certain sort of
voting strength but we may not have minority political power or

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influence. On the contrary what we shall h '

. , ave is exactl th

site;segregated seats—segregated seats, and when we sgeakedfpilr’ii:

nmofil'i1 3130 :nId 1:sheiglrlf.g;:a;1tion, thitn we mean is, lack of power lack of

. e amen ' ' ' ’
”game“ reasons. ent in section 2 is unfortunate for
r. RKMAN. Why do you say that the courts will ' '

ui at th . . _ _ _ . end their m-

gecgm 2? at pomt, given the very explic1t disclaimer language in
Mr. Hoaowrrz Because there is no cont ' '

_ . . _ . . rol over which 1 '
are gomg to bring suit in which jurisd' ictions, and there is homaggfl‘f
fancie. that there will _be any circumstances at all conducive to a
in mg of discrimination. All you would need to show is the dispar-

ity I refer to, in order to make out '
violation of section 2.. at least a plausible case of a

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