Legal Research on Statement of Robert Abrams
Unannotated Secondary Research
January 1, 1982

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Case Files, Thornburg v. Gingles Working Files - Guinier. Legal Research on Statement of Robert Abrams, 1982. e75f5908-e192-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cac72c09-2f83-4392-b671-1060d2bea2c1/legal-research-on-statement-of-robert-abrams. Accessed July 16, 2025.
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I- W7” 20p ”V46 £911? an"; 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.