Partial Draft of Brief on The Enactment of Section 2

    The Enactment of Section 2

The brief of the Solicitor General is gror:nded on a strturary

of the legislative history of section 2 which does not fully

correspond to the events which actually transpired in 1981 and

Lg82. On this account section 2 vras adopted by the llouse with

"little debate" (U.S.Br. II, 9). In the Senage, however, there

was "an intensive and devisive debate" (Id. at 8), following

which Ehe Constituticrn Subconmittee of Ehe Senate Judiciary

Comrittee "rejected the House effects tesE in favor of the

Citv of Mobile Iintent] standard" (Id., LZ) The Subcor'rmittee

vote, the Solicitor rePeatedly aSserts, led to a "deadlock"

(Id. 8, n.12, L2; U.S.Br I, 8). That "deadlock" was only

broken when Senator Dole, "with the backing of the President,"

proposed a compromised version of section 2 (u.s.Br. II, l.2).

Insofar as is disclosed by the Solicitor's brief, Ehe President's

intervention in support of the Dole proposal was the only .occasion

in which the Administraticn played any role in the enactmenE of

sectiorrr 2. The Solicitor thus insists that "particular weight"

must be given to the President's interpretaticrn of seciion 2,

since his "support for the compromise ensured its passage."

( U. S. Br. I, 8 , n.6 ) . Because of "the compromise character of

Ehe ultimate legislation," the Solicitor insists that "undue

emphasis" should not be given the views of "any one faction."

(U.S.Br. I, 8, n.6; U.S. Br. I1, 8, n.12). The factional

views that the Solicitor Particularly emphasLzed is the

0fficial Report issued by the Senate Judiciary Corncrittee

when it reported out sectioll 2, In an amicus brief in



Ciry Council of the CiEv of Chicago v. Ketchum, No. 84'627,

the Solicitor urges that greater weight should be giverr to the

views of Senator Hatch, who Ehe Solicitor asserts "supported

the comprooise adopted by Congress."

The actual events leading uP to the adoption of secEion 2

are somewhat different. The proposal to amend section 2 fLtst

emerged in the spring and surnner of 1981, during hearings on

legislation to renew the Voting Rights Act, when a number of

witnesses called upcn Congress to overrule this court's

decisicrn in City of Mobile v. Bolden that secEion 2 required

proof of a discriminatory PurPose. The rePorE of the House

JudicLary Conrmittee expressly called this change to the attention

of the House, and explained in deEail the consequences of and

reasons for adopting an effects test. (H.R. ReP. 97-227, PP.

28-32 (198f ) ). Only a single member of the Cornnittee, however,

voiced any reservations about this change in section 2.

( Id. at 70-73) (additional views of Rep. McClory). 0n October

5, 1981, Ehe House passed HR 3LL2, a general revision of the

Voting Rights Act which included the amended section 2, by the

overwhelming margin of 389 to 24. (- Cong. Rec. H

(early €d., Oct. 5, f981).

Shortly after the passage of the House bitl, however, the

Administration launched an all out attack on the decisicrn of the

House to amend sectioll 2. On November 6, 1981, the President

Brief for the United States as Amicus ( , L2, n.10, 16 ,
J
*

n.15)

I Cite to House hearings and relevant portion of Boldenl



released a StatemenE denouncing the "new and untested 'effects'

sEandard," and urging that section 2 be limited to instances

o f purposeful discrj.mination . Q Senate Egarrngs. 7 63)

The president adopted this positicrn on Ehe recosmendaticrn of

the Attorney General strongly opposing the House's action

in amending section 2 (Id., 765) Wtren in January L982 the

Senate commenced hearings on ProPosed amendments to the Voting

Rights Act, the Attorney General appeared as the first witness

to denounce any "effects" test. (l Senate Eearrng1 70 S! seg).

At Ehe close of the Senate Hearings in early March the Assistant

Attorney General for Civil Rights gave extensive testimony in

opposition to the adoption of any effects test (Id., at 1655 et

ssS). Both Justice Department officials made an effort Eo

drrrm up public oppositj-crn to the effects Eest, Publishing

critical analyses in several national newsPaPers and, in the

case of the Attorney General, warning members of the United

Jewish Appeal in a public speech that adoption of an effects

Eest would lead to court ordered racial quotas.

But neither the objections of the President, nor those of

the Department of Justice, were deemed persuasive by the Congress.

_l IDo a footnote with quotes]

_/ [Do a footnote with quotes]

_l 2 Senate Hearings 770 (Assistant Attorney General Reynolds)
(WEshingtonEsT[7f (Attorney General Smlth) (Op-ed article,
New Yor[ Times), 775 (Actorney General SmiEh) (Op-ed article,
Washington Post)

_/ Id. at 780.



A month after the President denounced the House passed legislation.

A Senate bill containing the same language as the House measure

\,{as cosponsored by a total of 60 members of the Senate, far more

than rf,ere needed to ensure Passage. Otr March 24, 1982, the

Subconslittee on the ConstituEion reported out the Mathias bill

after having voted, by a margin of 3-2, to delete the House

Ianguage incorporating an effects test into section 2.

( II Senage Report ) By the time the full Comittee

took up the bill in April L982, a total of 66 Senators had

j oined as cosPonsors of the original Mathias bill, including

9 of the 18 members of the Cornmittee itself .

The legislative situation on May 4, L982 when the Dole

proposal was offered, could not conceivabty be characterized

aS a "deadlock," and was never so described by any member of

the Senate. The entire Judiciary Cornmittee favored reporting

out a bill amending the Voting Rights Act, and fully two thirds

of the Senate was comritted to restoring the House effects tesE

if the Judiciary Conmrittee failed Eo do so. Senator Dole

commented, when he offered his proposal, that "without any

change the House bill would have passed." (2 Senate Hearings 57)

Both supporters and opponents of section 2 alike agreed that

the language proposed by Senator Dole and ultimately adopted

by Congress was intended not to water down the original

House bilt, but merely to spell out more explicitly the intended

meaning of legislation already approved by the llouse.

S . L992; _Cong . Rec .



Senator l{atch, to whose views of section 2 t|1e Solicitor

urges particular deference, was in fact the most intransigient

congressional critic of that provision. Senator Hatch was not,

as the Solicitor asserts, a suPPorter of the Dole proposal.

On the contrary, Senator Hatch urged the JudicLary Comnittee

to reject the Dole proposal, and was one of only

Connittee members to vote against it. Following the Cormittee's

action, Senator llatch appended Eo the Senate Report Additional

Views objecting to this modified version of section 2. On

the floor of the Senate, SenaEor Hatch proposed an unsuccessful

amendment that would have struck frcra the bill the amendment

to secEicrn 2 that had been adopCed by the ConmitEee, and

again denounced the language which eventually became law.

We agree with the Solicitor General that the construction

of secticrn 2 which the Department of Justice nolrT ProPoses in its

amicus brief should be considered in light of the role which

the Administrarion played in the adopticrn of this legislation.

BuE Ehat role is not, 8s the Solicitor aSSertS, one of a key

sponsor of the legislation, without whose suPPort the bill

could not have been adopted. On the contrary, the Administration

in general, and the Department of Justice in particular, was

throughout Ehe legislative Process the most collsistent,

adamant and outspoken oPPonents of the proposed amendment to

secticrn 2. Having failed to Persuade Congress to reject the

2 Senate Hearings -- [quote argumentsl
2 Senate Hearings _-
lquote the viewsl
Cong. Rec [discussicrn of the proposal, noEe vote on itl

speechl

-_/

Cong. Rec [quote Hatch's



present language of section 2, the Department now seeks to

persuade Ehis court Eo adopt an interpretation of secticrn 2

that would severely li-BiE Lhe scoPe of Ehat provision.

Under these somewhat unusual circr:mstances the Department's

views appear to warrant somewhat different weight than night

be appropriate under ordinary circurnstances.

Nothing in the legislative history of suPPorts the

Solicitor's suggestion thaE this court should depart from the

long established principle that coumittee rePorts are to be

treated as the most authoritative guide to congressional intent.

Garcia v. United States, 105 S.Ct- 479, 483 (f984) SenaEor

DoIe, to whose positicrn Ehe Solicitor would give particular

weight, prefaced his Additional Views with an acknowledgement

that "[t]he Committee Report is an accurate statement of the

intent of S.L992, as reported by the CotrElittee" On the floor

o f the Senate both suPporters and opponents of sectj.on 2

agreed Ehat the Comnittee report constituted the authoritative

explanation of Ehe legislation.

Until the filing of its briefs in this case, i-t was the

c onsistent contention of the Department of Justice that in

_/ Senate Report I93; see also id. at L96 ("I expreis my
vi-ews Aot to-'Effissue with the body of the report") I99
( "I concur with the inEerpretation of this action in the
Committee Report." L28 Cong. Rec. 6553) (daily ed. June 9, L982)
(Sen. Kennedy, S.6046-48) (daily ed. June I0, L982)
(Sen. Kennedy), 56781 (Sen. Dole) (daily ed- June 15, L982)
S6930-34 (Sen. DeConconi) , S.6941-44 ( Sen. Mathias) , S.6960
(Sen. Dole),5.6967 (Sen. Mathias), S.6991-93 (Sen. Stevens),
S.6993 (Sen. Oole), S.5995 (Sen. Kennedy) (daily ed. June L7,
L982), S.7O9L-92 (Sen. Hatch), S7095-96 (Sen. Kennedy) (daily
€d., June 18, L982)



interpreting secticnr 2 " It]he Senate Report. . is entitled to

greater weight than any otrher of the legislative history."

Only in the spring of 1985 did the Department reverse its

position and assert that the Senate rePort was merely the

view of one faction and that "cannot be taken as detetminative

on aI1 counEs." (U.S.Br. I, P. 24, n.49) This newly fo:mulated

account of the legislative history of section 2 Ls clearly

incorrecE.

/ Post-Trial Brief for the united states of America,
co-unty council of sumrer countY, south carolj.na v. united
i i.- *o'

"T'he report of the standing couutittee in each
house o'f the legislature which investigated the
desirabiriry of-the statute under consideration
is a much uied source for determining the intent
oi inE-iegislature, especially when il sets forth
the conrmiEtee's grounds for recomrending Passage.
of tt. proposed Sirr and, mo!e- impoltant, its under-
standin! oi the nature and effect of the measure.
See Chuich of Ehe Holy TriJlity v. Unire4-llates,
ii5 n
u.s. 168, r85 (1969)"