Legal Research on Statement of Robert Abrams

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Section 2, a c ecision in City

   

   

of Mobile v. Bolde 446 U.S. 55 (198 There a plurality

of the United States.

law, held that Section 2 es direct proof that a voting

practice was adopted or r with the intent to

discriminate. As Just‘ e White no d in his dissenting

opinion in Mobile, is new evidentiar equirement "leaves

the courts belo adrift on uncharted seas w respect to

      
 

446 U.S. at 103. The confusion endered

"results" standard.

    

l'Such a standard does not, as some argue, permit a
finding of discrimination on no more than evidence of
disproportionate election results, nor would it result in a
requirement of proportional representation by race. These
arguments are belied by the terms of the amendment which

specifically provide:

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.

The spectre of proportional representation is
illusory. If the language of the amendment does not
unequivocally make my point, the language of court decisions
prior to the Mobile decision should do so. These decisions

were made under the standard the amendment seeks to restore.

247

In these decisions, the Supreme Court, as well as lower
federal courts, never imposed a requirement of proportional
representation, nor did those courts find that the mere lack
of minority officeholders was sufficient to prove
discrimination. Indeed, such concepts were specifically
rejected..For example, in White v. Register, the Supreme

Court held:

To sustain such claims it is not enough that
the racial group allegedly discriminated
against has not had legislative seats in
proportion to its voting potential. The
plaintiffs' burden is to produce evidence to
support findings that the political processes
leading to nomination and election were not
equally open to participation by the group in
question -—- that its members had less
opportunity than did other residents in the
district to participate in the political
processes and to elect legislators of their
choice. 412 U.S. at 765 - 66.

The pre—Mobile cases focused on whether minorities
had less opportunity than others to participate in the
electoral process and not simply on the results of

elections. In so doing, they considered the totality of

circumstances surrounding the challenged procedures. Again,
referring to flhitg v. Register, the Supreme Court applied
the "results" standard and struck down at—large voting
procedures in two Texas counties, based on the trial court's
"intensely local appraisal" of a wide range of facts showing
that Mexican-Americans were “effectively removed from the
political processes ...." 412 U.S. at 769.

By contrast, the intent test, as interpreted by
the Mobile Court, requires courts to inquire into the
elusive area of motive and often requires plaintiffs to
prove the thoughts and intentions of long-dead officials.

It is an impossible burden in almost any situation, and it

248

is assuredly one that cannot appropriately be imposed in the
critical area of voting rights. I say this with the full
knowledge that I am advocating rejection of a standard which
would virtually insulate from attack voting practices which
as the Attorney General of the State of New York I may be
called upon to defend. However, we are not here evaluating
trial strategies, but rather the legal standards necessary
to ensure equality of access to the right to vote. The

amended Section 2 is vital to that effort.
THE PRECLEARANCE REQUIREMENT

Although the State of New York, like every state

in this Nation, is subject to the prohibitions of Section 2

of the Act, only 22 States, including three New York
counties, are subject to the preclearance requirement of
Section 5 of the Act. The counties of Kings, New York and
Bronx first came within the purview of the Act in March,
1971. It was then that the United States Attorney General
determined that the literacy requirement imposed by New York
law was a "test or device" within the meaning of the Voting
Rights Act, and the Director of the Census Bureau determined
that less than 50% of the persons of voting age residing in
each of the three counties had voted in the preceding
presidential election. Thereafter, as allowed by the Act,
the three counties attempted to be exempted by the federal
court from the preclearance requirement. They tried without
success to demonstrate that New York's literacy test had
neither the purpose nor effect of abridging any citizen's
right to vote on account of race or color. As a result, New
York has been required to submit to the Department of
Justice all the voting laws and procedures enacted since

November 1, 1968 which affect any of the three counties.