Legal Research on March 25th Executive Session 2

    25

tween the results test and the intent test. The. difrerence is not one
of cosmetics. Rather, it is a profoundly critical difference, critical
in terms of philosopirical und6rstandings of civil rights and critical
in terms of -Federal-State relations, especially Federal court-State
rela,tions.

Speaking only for myself, I would be pleased if a- compromise can
be riorked"out, "although I do believe that, the straigh-t 1-0-year exten-
sion of presend law pr6posed by Senator Grassley and adopted bv the
irt.o*i"iti"u ..p"u3".,t^s a faii compromise in iiself. I arfr not, how-
ever, as some of-the compromises seem to be premised upon, -merely
seeking to save face by being able to support-a cosmetic-results test
so that"we can claim victory.\ow we have looked for an honest com-
promise I brrt. in my vierv, is long as everything has got to be run by
ihe Luade"ship Corifere.rcu fo" apiproval, we wil-l prob-ably not succeed
in doins this.i must have heard^ihis refiain a doien timls within the
past sev"eral weeks.
rl\[r. Chairman, if the House amendments, or the Dole results amentt-

ment as presentlj, drafted, are adopted into tlre Voting Richts Act, the
question'of race"will intrude constantly into decisions relating to the
ioting and electoral process. Racial g6rrymandering and racJal bloc
votinE will become nolrmal occurrence-s, given legal and constitutional
sanction and recognition by the Voting Rights Act. fncreasing rather
than decreasing ficus upo-n race and ethnicity will take place in the
course of otheriise routiire voting and electoral decisionsr

This would mark a sharp depalture from the constitutional develop-
ment of this Nation since 

-the Reconstruction and since the classic dis-
sent bv the Elder Justice Harlan in Plessy v' Ferquson calling for a
colorblind Constitution. This would mark -an equally sharp departure
flom thc notions of discrimination established as the lawbf our land
tn Brousn v. Board of Educatinn,, the Civil Rights Act of 1964, and
indeed the Votins Rislrts Act itself.

I noto with iiterEst the remarks of the Nerv York Times this
morning by *y distinguished colleague from }laryland, ]Ir. Mathias,
in rvhich ho observes that the common interest on the part of propo-
nents of the intent standard is that we all want to create a '(homog'
enous" Republican Palty. lVith all due respect to my friend from
Llaryland, assuming thnt he did sav thtt, thnt again is utter nonsense.
Inde-ed, it'is precisEiy the opposite reason that "motivates man-v of us
on this side of the issue and certainly motivates me.
lThe flaw in the arguments of proponents of the results test is that

they confnse the conc-ept of minoi'itf representation rvith minority in-
flueirce. While they piofess to be'concerned about maximizing the
number of black iricli-vicluals or Hispanic individuals or Aleutian in-
dividuals on a city council or a county commission or a schoolboard,
thev totallv fail to recosnize. in mv i,iew. that this may be entirely
inc6nsisten"t with the ideiof maximiiing blick or Hispanic or Aleutian
influence on these representative bodies.

The proportionai representation premise on the part of my col-
leagues-onihe other siiie of this issue implies, of course, the creation
of district or ward systems of governmenl throughout the country in
place of at-large 

"y.iu.t. 
as *eil as other basic clanges in -municipalind State govirnment structures. In a community with a 20 percent



26

minority population and 10 city council seats, this, it is presumed, will
bo far more likely to insure trvo minority representatircs than rvould
an at-large structure. That may well be true, although I am far more
reluctant than results proponents to assume that minorities rvill in-
evitably elect minorities io represent their political interests. I reject
the idea that only blacks can iepresent blacks or that only whites can
represent rvhitcs. In any event, the logical outcome of any rvard or
district system designed to insure proportional racial reprresentation
for minorities is that such minorities will, in efrect, be clustered into
what amounts to political ghettos. W'e will have two districts in tliis
cornmunity rvith heavy concentrations of minoriiy voters and may rvell
elect two minority inilividuals to the representative body.

On t.he other hand, unlilic at-large systems, in x'hich all 10 council-
men would have to beresponsive toi laige degree to minority interests,
under the system desigued to promote proportional representation
there would be eight councilmen who would not have to pay one iota
of attention to minority interests. Potentially successful efrorts at
coalition building &cross racial lines would likely be blunted as racial
lines were reenforced and emphasized by the proportional representa-
tion system.

The requirement of what, in efiect, amounted to a quota system of
representation would tend strongly to isolate and stfomatize minorities
by'departmentalizing the elect"oiate into black districts and white
districts and flispanic districts and Aleutian districts. IUinoritv mem-
bers might well h'ave more members of their race or ethnic group sitting
on a city council, but their opportunities for exercising influence on
the political system outside their districts might rvcll be influenced.

f look at the lfouse of Representntives, for example, and note that
there is an 18-member Black Caucus. I did iust a bit of research on this
matter and noted that on the average each-of the districts represented
by these 18 members contains a minority population in excess of 80
percent. Now, if I were a member of the caucus, I might well be
itelighted with this state of affoirs. I rvould love to have a district
that was nearly totally homogenous in this respect. On the other hand,
I question seriously whether minority influence as opposed to minority
reflresentation is inaximized by this state of afrairi. Might not, foi
example, the minority commuhity in Detroit be better re-presented
in Washington or Lansing if there rvere three minority districts of
30 percent-each rather than a single 90 percent minolity district ?

Might they not be better represented if they had fewer representatives
vh6 were black or Hispanjc or Aleutian ?- I do not kno*. fn this re-
spect, I must strongly dgree with Susan McManus,lvho testified that
the results test:

Would plaee a premlum on ldentlfylng raeially homogenous precinets and
using those as the test. It seems to me that the inference is that racial polariza'
tlon or havlng people in racially segregated precincts is the ideal. I iitid tltat
very hard to accept as a cltlzen.

Professor McManus goes on to describe some real-world political
negotiations with which she was involved in Texas:

Ono faction of blaeks led by several State representatives, the three black
Houston city councll members arguing for spreading influenee among three com'
missiouers rather than having a single black figurehead commlssioner. State



27

Representative Craig Washlngton pointed out that three votes are needed to
aeclomplish anything substantive. As long as lve have 25 p€reent of the vote ln any
ono tlistrict. we are going to |e the tralalce of porrer. J.or that reason it is better
for the blnck community to haYe voting impact oD All three commissioners than to
be lumped together in one precinct and elect a blaek to sit at the table and watch
ttte papers fly up arrd dorvn. Paeliing all the blacks in one distrlct is not in the best
long-term interest of the community.,

In my opinion. Senator Mathias is absolrrtely lvrong in his suggestion
that opponents of thc results test oppose it because oftheir interest in a
homofenou,. Republican Porty. l\rhilc mv o\\'n primnry interest in this
u.no l-*. nothing to clo rvith partisanshiir one \iav-o-r the othe-r and is
prin-rarily relateil to constitutional concclns, f rvoulcl suggest !\1t, if 1
ho-ogenorrs Reprrblican Pnrty wrs nry objectivc. I rvorrld b.e de-ligllte{
with ihe results tcst. I rvould UL dctigtrted .'iith the opportunity, if I had
this l<ind of a reasoning, to have [idy little distriati in rvhich all the
nrinot'ities 's'ere placed. i rvould be dciighted to have them in tidv lit-tle
distriets but, many more of them in which nonminorities were also
placecl. I rvoulcl Ud dclighted to eoncede to minorities tr or y n-umber of
seats and be able to eoneentrate the attentions of my party solely uport
the rest of the seats, if I had this menttlity. I would be delighted that
f would not have to start mv calculations in eaeh district rvith consid-
eration of rvhat coulcl be tloire to maxirnize support from or minimize
opposition from the minoritv community.-i 

thinl< that is a'bominabie. Nevertheiess, I thinl< those rvho reallv
want to minimize minorit-y influencc in this cottntry would be delighted
rvith the results test. In otlier rvords, if one's interest were & homogenous
party of any sort, I cnn think of no bettcr rvay to achieve that by remov-
i'ng .i,trat is"today a preclominatelv Democratic voting gronp oulside the
bo-undarier of Sb to CO percent oi the districts in the cottntry and con-
ceding them a measurc of proportional representation.

Seriator RrnnN. Will thd Seirator yield just for l second?
Senator lfrrcrr. Yes.
Senator BrorN. I am not sttggesting lte not finish his statement, bttt

ean you give us an idea roughly-how fruch longer the statement would
be?

Senator }frrcrr. I tliink I will probably be through in about 10
minutes.

Scnator RronN. Fine. Thanl< vou very much.
Senator f Lrrcrr. Again I ap6logize ior taliing this- long, but f think

it is important ancl, o1 course, am prepared to accord you the same.
Senatot Brnr:v. f agrce.
Senator Ffrrcrr. I ivould be delighied, if f had that mindset, with the

r,ule of thc .Iustice Department delelopcd in recent years that a district
reorrires at least a 65-irercent minoritv DoDulation in or<ler to be classi-
fieci as one "lilielv to eiect a minority ieprelentative." With that kind of
a minclset, I rvorild be delighted nof to iiave to start each and every con-
gressionai or Statc legislative or city council race 10.to 15 percent be-
fi.rd bu"ar.e of the p"resence of a niinority group disproportionately
rttracted to mv partiian opposition.

Ifowever, n"orie of thai is mv intelest nor. as far as f know, the
i";;;tof ir"yo"o J.e opp"sin"g tlre Serratot"from 1farvla{rd on'this
issue. I simpli, do not aciept th-e prernise of the Senate dr that of the
civit rigtrtd leadership in'this c'ountry today that the interests of

93-706 0 - 83



28

minorities are best seryed when narrow racial concerns arc given
predominant focus in the electoral pr(rcess.

I believe, instead, that it is in fire lx,st interests of minorities, all
minorities, that racial and ethnic corrccr.ns be subsurned within a far
larger political context in which race does not define political inter-
est, in which the two are not congmer$. -\s Professor Bdward Ehler of
the National Humanities Centei has tesbified:

Transformlng the Voting Rights Act into a rehicle of proportional representa-
tion through the results test will go far toward precluding the possibility of ever
ereating a common ground or common iuterest that transcentls racial class con-
slderations. How could the idea of racially itientifiable wards or districts ever be
looked upon as a civil rights objective? IIas the civil rights movemerrt evolved
so greatly over the past deeade that all hr,pes and aml-ritions of ever aehieving a
color-blind society have been discarded? Does anyone hold the slightest belief
thot results or effects analysis will do anything other than intensity ctrlor @n-
sciousness? How could the itlea of e ten-]'ear extension of the Yoting Rights Act
adopted by the subcommittee ever be vierved as anything other ihan tlre highest
afrrmation ot ciyil rights? It was consirlered such only a year ago. It was only a
year ago that Vernon Jordan of the Urban League said of the ect that if it ain't
broke, don't flx it. It rvas olly a )'eor rrgo that Benjamin Hooks of the NAACP
testifled in the House: We support the extension of the Voting Rights Act as it is
now written. The Voting Rights Act is the single most effective legislation
alrefted in the last trvo deeades. I have not seen any changes that rver.e anything
but cha[ges for changes' sake. It would be best to extend it in its present form.

f understand that political positions change and eyolve over time,
but I simply do not accept as'credible that tTre position unani'mously
endors€d by ttre civil riglrts cornurunity less than & ye&r a.go now
reflects an anti-civil-righls position. Thit is not the indent of'anyono
that I know who opposes the House nrea^(ure.

The Voting Rights Act has proven the nrost snccessful civil rights
statute in the history of the Nation because it has reflected the over-
whelming consensus"in this r\ation that the most fundamental civil
right of all citizens, the right to vote, must be preserved at whatover
cost and through whateyer commit,ment required of the Federal Gov-
ernment. Proponents of the llouse rneasuro would jeopardize this con-
sensus by efrecting a, radical transformntion of the Voting Rights Act
from one desigrred to promote equal access to registration and the
ballot box into one designed to insure equalitv of outcome and equality
of results. It is not a'subtle transformation. Rather, it is one that
would result in a total retreat from the original objective of the Vot-
ing Rights Act, that considerations of raee and ethnicity would some-
day be irrelevant in the voting prr)coss. Under the House-proposed
amendments, there would be nothing nrore important.

I strongly urge the retention by this eommittee of the present voting
rights law and the reiection of the Ifouse amendments, including what
f understand to be the present Dole results test.

The CnernMaN. Senator DeConcini. I believe you ere the ranking
member on the Constitution Subcommittee.

I was going to take up these resolutions, but f am wondering if we
have a quorum. I do not believe we have 10 rights at the moment.
Senator DeConcini?

Senator DrCoNcrrvr. Thank you, Mr. Chairman. I will be brief.
f respect immenselv the chairman of the Constitution Subcommittee.

fndeed. I know how"sincere he is and the efrorts he has put forth andpu
the dili enceAt

t he has demonstratetl in studying this mat[er. Although



29

Chairman Hatch and I difrer on some of the central issues, f certainly
commend him for olt'ering a full and fair opportunity for ail interestel
parties to erpress their views as well as foisubjectrng this important
bill to tho intenss scrutiny that it has corne under. I- believe ttre UUt
withstood scrutiny weli. During the course of the subcourmittee hear-
Tgsr S. 1992 pilked -up several additionai cosponsors. Nevertheless,
Chairman Hatch and bthers highliglrted man! reasonable concerns
about tho ell'ects that this biii wouldlave on St-ates and local govern-
urents.

Wrile I have never believed that the effects which Chairman Hatch
has_ warned of, such as racial proportional representation requirements
and per se invalidation of at-large elections, would come to pass under
S. 1.992-and, in my opinion, you can read the testimony delivered in
a, way that would demonstrate that it would not-I have believed that
it rnight be helpful to make tho language of the bill even clearer so
that there would be no doubt as to the fact that the standard established
by the results test of S. 1992 is the same as the vote dilution sstandard
under such cases as lVhite v. Regester, Whi,tcomb v. Chaais, and sub-
sequent lower court decisions.
I I am thereforo pleased that the Senator from Kansas, Senator Dole,

has worked with a number of us to put together another amendment
presenting language for a results test in S. 1992 that affirmatively
states that the test for a violation would be whether minority members
have less opportunity than other members of the electorate to partic-
ipate in the political process.

I believe that this language, plus assurances that proportional repre-
sentation by race would neithlr be required of a jurisdiction when
judging a .iiolation nor imposed .rpon a jurisdiction when remedyilg
i vi-olafion, answers efrectively the concerng expressed during the sub-
committeo hearings. We said then that '|Vhite v. Regester was our
standard in S. 1932. 'We have drawn language from that case and
placed it in the statute in order to establish that standard beyond the
shadow of a doubt. r

Mr. Chairman, I believe that this bill as amended by the language
to be ofrered by Senator Dole will be the appropriate measure to assure
every citizer, ,if o full and complete oppoi[unity to participate in the
political process. As the Supreme Court noted olmost a century ago,

'-'the poli[ical franchise of voting is a fundamental political right,'
causing preservation of all rightE. It is one of the core principles of
govern-m-ent in America that all citizens have a fair chance to ioin jn
iietermining our national policv and goals. TodayJs effort and the
cflort of suEsequent days to extend and'itrengthen lhe VotingBights
Act of 1965 svmbolizei our national rededication to this principle.
Ihank you, Mr. Chairman.

The Cunrnrr,rx. The Senator from Massachusetts, Senator Kennedy.
Senator I(nvNnpv. Mr. Chairman, first of all, I want to express my

appreciation to the chairman of the subcommittee, Senator Hatch. I
wat not r member of that committee, but I did ottend a good many of
tho meetings. f was accorded all the privileges of a member of the com-
mittee. f am grateful to Senator Hatch and the other members of the
committee for that courtesy.

I want at the outset to note your commitment. Mr. Chairman, in
moving this bill through the eornmittee without delay. The commit-



30

lnent thet you gave us severel weeks tlgo-when'we were taking action
on the confribufions bill was that we would start on the markup of the
brlt toOay or, ra[lrer, yesterday anrl thaL we would couturue on it to-
norlow ind hri4ay'a-na so foi'th until we a.re done. I appreciate that
cornmitnrent. I am sure mv colleaqucs do.

We all linow that this is not air ordtnary bill. The judiciary docket
does have other legislation pending; but, if ne-cessary, we can work
this week and finislithe biII biefore t66 next scheduled rirarkup. In fact,
it should uo[ take more than a few days to complete our work. We
know that the budget m&tters are comirig to the lloor soon. They and
other must legislation will take us well in'[o the summer. We know it is
imperative triat we process this vital me&sure before the distorting
triirhammer pressurd of an August 6 deadline is hanging over our
heads.

I think we all know that the budget resolution is due on May 15.

Then we are going to have the debt cliling debate probably- sometime
in the lattel'pirc olt- May. So, we are going to have a very full schcdule.

We anticiiate some ilebat'e on the'floo-r. lVe must nrove this bill to
the full Sen^ate, hopefully, by the end of this month in order to have
it considered bi, oui colldasuls in an orderlv and unpressure fashion.

So, I thank"the Chair"for all of his efiorts to see that this is
accornplished.

We 
-need not belabor the importance of our work today and in the

rlays ahead. Our task is no lesl than the responsibllit-y to insure that
the hard-won progress of the past is preserved and that the efrort to
achieve full election participation for all Americans in our democracy
can continue efrective-Iv in tlie future.

The Voting ltights"Act has liglrtly been hailecl as the most impor-
tant civil rigiits liw of this centuiy. ffe nll know lhe intpt'essive statis-
tics of the [ains made under the-act. lhe hearings held bolh in our
committee a-nd in the House Iast vear indicate the tlangel of losing the
act's crucial safeguards when many of those gains are still fragile, and
there is still much left undone beforp rve have true equality of oppor-
tunitv to vote and have one's vote count fully, for all of our citrzens.

Tdice before, the act has been enclangered,'trnd, twice before, Con-
gress has come to its rescue on a bipartisan basis.

In the debate we rvill hear some of the arguments-and rvc have
heard a number of them this morning-that Congress has already
heard and rejected in past renervals. Wc will hear about the progress
we have made. But I think there is a broad consensus norv both in this
citv and across the land that the act, including section 5 preclearance,
needs to be extended. The record again has been made that there are
still too many problems, too manv continued efforts to thwart full
voting rights, and too many dangers. to eliminate those safeguards.

It ii also clear that s'e must exlend the bilingual election provisions
to insure that Americans not be clenied tlieir right to vote because of
language difficulty with the ballot.

Much of the debate in the con-rmittee's hearings has dealt n'iih sec-
tion 2 of the act. The chairman of that committee has eommented ex-
tensively about that provision today. The House bill, lvhich rvas
passed overwhelmingly and which Senator Mathias and I have intro-
duced, now has 65 cosponsors. It contained a clarification of the la^n-



31

guege in section 2 in order to resolve the confusion caused by the welter
of Supreme Court opinions inthe Mobi,le case.'Ws will be discussing section 2 in detail during the markup, but I
think rve should not lose siglrt of the forest fol the trees. TIte funda-
mental issue is one of fairness. 'We are at a crossroads in setting the
course for the elimiuation of remaining election discriminalion. 'We

can talie the patli in the House bill and adopt the results test. That
would permib minorities to challenge practices rvhich shut them out
of a fair chance to participate in tlie electoral process. Or we can take
tho path suggested by sorne and require proof of intent. That road
takes us down the path of name calling, identifying public officials or
whole communities as racist. It is divisive but, more important, it
will not provide an efrective tool to challenge discrimination in rnany
cases because ib is too hard to prove or because defendants can conle
up with some alternative explanation.

I believe that the overridins princinle is simple and obvious. We are
tall<ing about the most fund"arirentaf riglrt, wlich is the basis of all
others in a democrac-y. If a minority cit-izen is denied equal opportu-
nity to participate nrd is shut out frlom a meaningful rolb in tlie proc-
ess, then that inequity should be correctecl, regarilless of what may or
may nothave been in someone's head 100 -years ago.
r ihe lfouse provision on section 2 is r"casonaEle. The horror stories
wo have heard about racial quotas have been laid to rest in the hear-
rngs.

'I'here has not been one Supreme Oourt decision on this issue. Those
that malie these statements and cornments out of hand about the lan-
guagg that has been devcloped in tlrc lVhitc case mandating propor-
tional representation cennot show that by court holdings, quite to the
contrary. As one n'ho has heen listening to that argument ovel. some
period of time and hearing it repeated time in and time out, and I anf
sure we are going to hear it on the floor, it is beginning to oecur to me
that these are sc&re tactics rrhich :rre being ofrered to try and alter and
dramatically change whtt hm been a ve-ry carefully nrotected right
for citizens"of this- country. There is not bne case ieq^uiring propor-
tional representation.r

Tho Ifouse provision on section 2 is reasonable. Ihe horror stories
wc have heard about racial quotas have been laid to rest in the hear-
ings. The llou.sc bailout provision is a reasonable, fair, and carefully
crafted provision. It substantially liberalizes the opportunity for coy-
ered communities to end their preclearance obligati-ohs. Further tveak-
ening of it could turn the bailoirt into a sieve and constitute a backdoor
repeal of section 5.

These are the basic outlirres of the record that has emerged from
the hearingE, Mr. Chairman. f hope we can move the bill with speed
but also with sensitivity to the fact that we are dealing with theJate
of American citizens' iigtrt to participate fully in elEctions. f,et us
keep in mind, as u'e tafr abouf makiirg slight adjustments or fine-
tuning provisions, we ore talking aboutieal people in real communi-
ties who are-being shut out of a ihance to pariicipate in any meaning-
ful way in the political process.

f believe that, if we can liecp that point in mind, this committee will
r_eport a-fair and strong bill-to cui oolleagues in the full Senate so
that the long-delayed march toward full vd-ting rights can continue.



32

I would finally say, Mr. Chairman, that I think the issue is very
basic, very fundimerit'al, and not very complicatecl.'Ihe real questioir
is wtiethei we as a Sentite rvant to rrialie it'possible throrrgh dtriking
down the various barriers rvhich have been established toicitizens of
this Natron in their efforts to vote, whether we want to malie thet easier
or more difficult. Do we want to mnhe it easier, or <lo rve want to rnake
it moro difficult?

We have the power. lVe have the power and, I believe, thc respon-
sibility, lrut celtainly the power. It has been helcl try the Supreme L-ourt
in caso after case rn enforcing and bringing life ro the lath and 15th
amendments to pass legislrtion which will achievc those noble objec-
tives. The real question is whethcr rve have the will and whether we
believe that we as a Oongress ought to make it easier for people to par-
ticipate in the election systems of this country or whethei we want
to make it more difrcult.

If you want to make it rnore difficult in 1982, then you are going to
vote -for the intent recomnrendation. We do have a 

-requiretfrent"for

intent in criminal cases, but we do not hsye it in civil caies and we do
not have it in other erees of the civil rights larvs and issues of enrploy-
ment, issues of housing. That is going t6 be the crux of the issue wtrictr
is before this committee.

- I'inarly, we. lreur4 dur.ing opening statements thot thc Congress had
![e gpport_unity when we passed the 65 acts to put in a results test.
Well, phe Congress did not put in an intcnt test either. I wish we had
put in a results test.

I am satisfied with the statements of Attorney General I(atzen-
bach and the statements of the leaders of the House and Senate at the
tirne of the renewal of the act that the legislative supports the results
test. But I do not think that that is a very itrong poinf.
o Tltere are two final matters that I would rnention since there lvrs
such an amount of time given to the issue of proportional representa-
tion. A variation of the proportional representatibn theme is the claim
that the results test would bring wholesale challenges to election sys-
terns everywhere. This claim rvas fueled by the testimony of the as-
sistant attorney general who testified to this efiect eyen *liile ignor-
ing a comprehensive study done by the Justice Department less than
4 years ago. The assistant attorney general's testimoly lvas based ex-
clusively on a sketchy error-filled survey of a handful of carelessly
chosen cities; almost every one had been thoroughly analyzed already
in 1978. Those etrors consisted of mistaken population figures, errors
in the number of minority elected officials. as well as ignoring the
careful analysis that mostbf these same cities had previoirsly uider-
gone.

In 1978 in response to urgings that the Justiee Department look at
possible cases of voting dilution in areas orrtsicle the specially covered
jurisdiction, the Department did an analysis of more than 200 cities
throughout 40 Northern and'lVestern Statcs to see whether vote di]u-
tion cases should be considered there. Based on the initial study. a num-
ber of cities were selected for more detailed investigations. In almost
cvery ease, these too were found by the Justiee f)epartmcnt not to rvar-
rant litigation. They did not warrant litigation beeause they ditl not
meet the dilution standards of the Whi.te v. Regester, which is the test



38

which is included in the l\Iathias/Kennedy proposal. The Department
analyzed these facts, the case which woultt tr-e re-stored by arneirded sec-
tion 2.

- {!i. comprehensive study covered every one of the cities mentioned
by r\Ir. Reyuolds except forr two, which rvere in Southern States. One's
brtck popuration was under 5,000. Yet, IIr. Reynolds did not even refer
to the siudy in olteriug his cavalier stateurcnts that all these cities
rvoultl be vulnelable to cirallenge. And rve heard that statement and
chalge agarn today.o

'Ihe Justice Departrnent study done under the existing law in de-
tail and then we hear these cavalier sLateurents about var.ious com-
rnunities_being subject, if this test is acccpted, that thcy wili be chal-
lenged. One city that he specilically mentioned was Cincinnati. Yet,
Oirrcinnati wes one oI the cities that was looked at in depth by the
Justice l)epartmeut. 'I'he corrclusion was as follows: In li[e manner,
Cincinnati, Ohio, was the subject of vote dilution investigation by the
Crvil Itights Division; but, once again, the division diilnot discover
tlre facts necessary to institute a larvsuit uuder the Wh.ite v. Eegeeter
staudard-Assistant Attorney General Robert l\IcDonnell to kepre-
sentative }Iyde, July 9, 1981.

I think I w:ould like to aslr-I knorv there are other statements, but
I would ask the chairman of the subcommittee rvhether he can name
one c&se under Lhe W lr,i,te v. Eegester of the more than two dozen cases
where the court required quotas or proportional representation, even
one case.

Senator lletcs. White was & case involving purposeful conduct.
That is what the Supreme Court has said. I'hat is what Justice White,
its author, has said. It was decided on that basis. It was not decided
on the basis of a results test.

I just submit to my good friend and colleague-and I appreciate
his liind remarks at the outset of his statemeni-that he has miscon-
strued the case.

That case involved purposeful conduct. I do not see horv anybody
can read. it any other rvay, especially since the Supreme Court has
ruled that it does.

Senator I(BNNrpv. Just on mv question. not on vour interpretotion
of tlre White case, you have st"ated this rnorning-in a long, detailed
statement about the dangers under that particulaicase-of proportional
representation. I am ask-ing you to name one case which has supported
that thesis, one.

Senator lfarcr. Wel| W lt;i'te v. Eegester saYs-
Senator I(nrvNnpv. On the proportional representation issue.
Senator H.trcrr. Let me sav this-
Senator I(rwNrpv. On the proportional representation issue. We

will get back to the larv aboutlntent,.I mean [he results test and the
purp"ose. 'We will get back to that. I will not take the time of the com-
mittee. But just on the proportional representation.

Senator Iiercn. Thit, Senator, is not the question. There has never
been anything but a purposeful consicleration of PqrP-osefulness in
these caies. Ifr spite of what tlle Washington Post and the New York
Times mav sav. ihe efrects test has never Seen the standard. It has been
intent which has been the standard.



B4

f cite the Mobi,le ca*:
White v. Regester is thus consistent with the baslc equal protetion prlnciple

that the invidious qualtty of the law claimed to be racially diserlminatory must
ultimately be trsced to a racially dlscriminatory purpose.

Tlrat was the issue in Whi.te, in Mobile, and in other 14th amend-
ment, 15th amendment, and section 2 cases.

The ouestion is why now ane proponents of the lfouse bill arguing
to overturn what has'been the settlelt law in this area, a law which has
worked well. What motivates this efiort ?

Let me point out further-
Senatof I(I:NNEDr. tr'fr. Chairman, I can with-
Senator lletcrr. Perhaps even more compelling is the fact-that Jus-

tico White, who dissente^d in ll[obil,e, and who authored the White
opinion, agreed that it rvas consistent with the intent.or purpose re-
qiri.em.rrt."Jlstice'W'hite disngreed with the Court's opinion in tr[obi,le
Becauso he believed that the pLiintifi had satisfied the intent or prrrpose
standard, not because he dis^ngreed rvith the standard itself. In his dis-
sent, he said:

The eourt's deeision eannot be understood to flow from our recognitlon ln
Weshin|ton v. Dot:is that the Eqtlal Protection Clause forbides only purposeful
diserimination. Even though Mobile's Negro community may regirster and vote
without hindranee, the system of at-large election of eity commissioners may
violato tho tr'ourteenth and I'ifteenth Amendments if it is [sed purposefully to
exclude Negroes from the politieal proeess. Because I believe that the ffndings of
tho distriet, eourt amply sttpport an inference of purposeful diserirylnation iu
violation of the Fourteenth-and Fifteenth Amendments, I respectfully dissent.

So, I would respond to the S,enator: lYhere is tl'ere a case, a Snpreme
Cour[ case, whero^the resulLs test rvas employed ? There just is not any.
o Senator'KrNNrov. Ihe fact is, with all the scare languagg, the re-
sults of the White case. those that bring up the scarc tactic of propor-
tional representatior c&nrl(rt shorv that there has been a single case

that has required proportional rep resenta-tion-
Senator Easr. Woiild the Scnaior yield for n question ?

Senator KrNnrov. I wanted'iust to come bacli to a final question-
Senator lfarorr. AntI I would like to answcr this one.
Senator Eest. I would Iilie to sholv that currently in North Carolina

todav they are. because of scction 5 of the 1965 Voting Rights Act, we
aro dnder"a PR test. The Senator from Utth, in my'judgment, is ab-
solutelv comect. If we take the I(ennedy/Ilathias bill section 2 and
apply it nationrvide, Senat,or. I rvoul d argue- very. streluously that.you
aid going to have proportionnl representation. An-d I can.quote here
fror[ our-newspapeis. That is currently rvhat i.s being required-ly the
Justice Departinent beeause they sav under section 5 of t'he 1965 VotTtg
Rights Aci that that is what is required. Let me just- quote here briefly,
Senator. since vou challenge the integrity of our position.

'We are told hcre, this"is a direi:t quote froh lYilliam Bradford
Reynolds:

Our analysis shows that during the Senate Redlstrletlng Committee's eon'
sideration-talking about the State Leglslature of North Carolina-of thls dis'
trict-which is in northoastern North Carolina-it s'as widely reeognized that
at least a 55 pereent blacli population was necessary if black voters were to have
a reasonable chance of electing their caudidate.



35

Currently under the redistricting plan, it is 51.7. Now, it is quite
clear that ihat is moving vou in tlie -direction of proportional repre-
sentation. We cannob hiv6 at-large districts. 'We-must have specific
single-member districts. The logical terminal point, as the Post has
prev'iously pointed out, is PR.- I greatiy respect the eloquence and the reasoning pgyer of the Sen-
atoifrom"Massachusetts. but we are on sound qround in terms of the
southern experience when we say the logical teriiinal point is PR; and
it is a bad concept. I commend tire SenaTor from Utahlor holding firm
on that.o

Senator llercn. With the Senator's indulgence, let me just say this:
The reason there aro few cases utilizing proportional representation
beforc tllobik rvas simplv because the re5utts test had not been the law.
I will give you one illistration, however, where it was used in ?Pply-
inc th6 efl6cts test pursuant to section 5z Ci,ty ol Port Artlw,r v.
fLiited States. This-was a municipal annexation case in which the
court stated.:

The conclusion reaehed by this court is that none of the electoral systems
proposed by plaintiff, Port Arthur, affords the black eitizens of the city the
reqirisite opportunity to achieve represeDtation eommensurate with their voting
strength in the enlarged community. Blacks comprise 40.56 percent of the total
post-expansion population, and we estimate that they constitute 35 percent of the
voting-age population. None of the proposed schemes offer the black community
a reasonable possibtlity of obtaining the representation which would reflect
political porver of that magnitude.

In addition, f would suggest that my friend from Massachusetts
also read the Supreme Court decisions in Rirh.m,ond and Petersburg.

Senator I(eNNnov. We will have a chance to get into those. I still
stand by the earlier statement with regard to lower court holdings,
courts of appeals, or the Supreme Court.

I would'like to end witli this question. If you can show, since you
have indicated that the White test rvas a purpose test, can you show us
tbe pages in the opinion where the court discusses the purpose behind
tho adoption of the at-large-

Senator llarcn. I do not need to because in Mobi,le two Justices
say-

Senator I(rrNuov. White is the test which we have accepted as the
base. I am just asking you, and you have tolked about White as the
pulpose tes[. I rvouldJrist like yoir to point that out for me. 'W'here in
the opinion ?

Senator H.rrcrr. What better way can I do it than by having two
.I'ustices say that is exactly whet-

Senator I(pNNnpy. Show us.
Senator Harcn. It is explicitin llobile that the Court viewed White

as an intent case. ft is also explicit in Justice'White's dissent in Mobile
that he, as author of White, viewed it as on intent case.

Now, let me throw that back to you. Show me a Supreme Court case
where the results test has been found to be the applicable test under
section 2 or the reeonstruction amendments. f have seen in the news-
papers time and time again how this hrs been the law, the efrects test
or the results test. Show me where it is. Show me where. There is not
o case anywhere, certaiirly not a Supreme Court case.



36

Senator Krrrnoy. I am not going to take any other time. I have the
opinion-here. If you can show-usiny part in the opinion of White
whero the court discusses the purpose tietrind the adoption of the at-
large election issue, I would we-lcofre that.

We will have another time. There are others who want to speak.
Ths Crrarnuer. The Senator from Iowa.
Senator lfarcrr. Senator Grassley, would you yield for just one

statement?
Senator Gnassr,ny. Sure. I can stay here all day.
Senator llrrcrr. We may have to. :

'What I see is that Senator Kennedy disagrees with at least sir
Justices in the Mobi.tn case who say that'lVhite"requires an intent test,
and disagrees with the author of the Wluite case,Justice lVhite him-
self. In other words, if you could show me where the Supreme Court
has accept-ed a results orieflects test in section 2 cases, I w6uld feel like
you. would bo a long way toward making your case. But you cannot
do rt.

Senator KnNNEDy. There are a number of cases prior to Mobite
which tho Supreme Court found unconstitutional disirimination and
election systems without requiring the proof of intent. For example,
tn Fmtson v. Dm,sey, 196u; the-court-found multirnember syst6md
miglit be unconstitutional; ii designed or otherwise, was the language
that was used, it operates to minimize or cancel out the voting stningth
of racial or p6litic-al-

Senator l{ercn. What section was being applied in that case?
Senator I(rNNnoy. The 14th amendment.
Senator lfercr. The 14th amendment. ft was not a section 2 case.

ft was not even a 15th amendment case.
Senator KrNNnov. You just asked about the 14th-
Senator lfarcn. But it is not a voting rights case. It is not a 15th

amendment case. It is not applicable to this.
Senator I(nNNnov. ft is a voting rights anse.
Senator Ifarcn. Not under the 15th amend.ment.
Senator I(nNr.rrov. Fourteenth or fifteen amendment was the ques-

tion that the Senator asked.
And in 1966, Burn* v. Eichnrdsonrthe court again said a system that

operates designedly or otherwise to minimize or cancel minority
strength.

Then in Wh,i,tcombr 1971, the court noted at the outset that there
w&s no proof of intent and. then, nonetheless, went on to discuss the
eflects. The plaintiffs admitted that, bub the court went on to discuss
the effects

So, there are other cases, too.
'We will have a chance to get into it.
Senator Harcn.'We will get into it.
Senator I(rNNrov. I am glad that we were able to give a result on

the results test, and the Seriator was not able to on the purpose test
nor show where there was proportional representation.

Senator BronN. Mr. Chairman, may I mike an inquiry9
The CnarnrwlN. Yes.
Senator BronN. f am not anxious to close down this exehange at all.

Are we going to have an opportrtnitv to make the opening statements
that tho6 oi-us wish to maEe? Two-minutes for me, whenever.



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