Voting Rights Act Extension Report with Supplemental and Dissenting Views

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Dillard v. Crenshaw: Redesigning the Political Map of Alabama

    LAN( 

97TH CoNGRESS} HOUSE OF REPRESENTATIVES { REPORT 
1st Session , · No. 97-227 

:"· •· : ,·. ·· · 

VOTING RIGHTS ACT EXTENSION 

SEPTEMBER 15, 1981.-Committed to the Committee of the Whole House on the 
State of the Union and 'ordered to be printed 

Mr. EDWARDS of California, from the Committee on the Judiciary, 
, · submitted the following 

REPORT 
together with 

SUPPLEMENTAL AND DISSENTING VIEWS 

[To accompany H.R. 3112] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 
(H.R. 3112) to amend the Voting Rights ·Act of 1965 to extend cer­
tain provisions for an additional ten years, to extend certain other 
provisions for an additional seven years, and for other purposes, hav­
ing considered the same, report favorably thereon with amendments 
and recommend that the bill as amended do pass. . , 

The amendment to the text of the bill is a complete substitute there-
for and appears in italic type in the reported bill. _ 

The title of the bill is amended to reflect the amendment to the text 
of the bill. , 

ExPLANATION OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE 

The amendment in the nature of a substitute differs from the intra-
. duced bill primarily in the following respects: the criteria for allowing 
covered jurisdictions to be exempted, that is bail out, from the special 
provisions of the Act are broadened; the extension of certain provi­
sions of the Act for 10 years is changed; and the amendment to -
Section 2 of the Act is further clarified. 

PURPOSE 

The objectives of H.R. 3112, as amended are : (1) to extend continu­
ously the special provisions of the Voting Rights Act, Sections 4, 5, 
6, and 8, (2) to amend Section 4(a) of the Act to permit jurisdictions 



2 

to meet a new standard of exemption from the obligations of Section 5, 
(3) to clarify the standard of proof in Section 2 voting discrimination 
cases and ( 4) to extend the language assistance provisions of the Act 
until1992. · 

Jurisdictions which meet the criteria set out in Section 4(b) of the 
Act will continue to be subject to the special provisions of the Act 
until such time as they can ineet the new standard for bailout, as 
set rorth in Section 4 (a), as amended. 

The st_andard for bail-out is broadened to permit political subdivi­
sions, as define<! in Section 14( c) (2), in covered states to seek to bail out 
although the state itself may remain covered. Under the new stand­
ard, which goes into effect on August 6,1984, a jurisdiCJtion must show, 
for itself rund fur all governmental units within its territory that for 
the to years preceding the filing of the bailout suit: ( 1) it has a record 
of no voting discrimination and; (2) it has talren steps to increase 
minority political participation and has removed obstacles to fair 
representation for minorities . 

. H.R. 3112 amends SectiOn. 2 of the Voting Rights Act of 1965 to 
prohibit any voting qualification, prerequisites, standard, practice, or 
procedure which results in discrimination. Section 2 would be violated 
if the alleged unlawful conduct has the effect or impact of discrimina­
tion on the basis of race, color, or membership in a lrungu,age minority 
grou:p. The amendment is necessary because of the unsettling effect of 
the decision. of the U.S. Supreme Court in Oity of Mobile v. Bolden, 
446 U.S. 55 (1980). The amendment clarifies the ambiguities which 
have arisen in the wa;ke of the Bolden decision. It is intended by this 
clarification that proof of purpose or intent is not a prerequisite to 
establishing voting discrimination vio}ations in Section 2 cases. The 
proposed amendment does not create a right w proportional repre­
sentation. 

The language assistance provisions of Section 203 are extended for an 
additional 7 years. While Section 203 does not expire until 1985, the 
Committee felt it was appropriate.to address these provisions in light 
of legislation amending these provisions which was pending before 
the Committee during its deliberations. 

IfiSTORY 

On May 6, 1981, the Subcommittee on Civil and Constitutional 
Rights convened the first in its series of hearings on legislative pro­
posals to extend . and amend the Voting Rights Act of 1965, certain 
provisions of which expire on August 6, 1982. At the outset, the Sub­
committee had before it five bills 1 which addressed all of the major 
provisions ofthe Act, even those which do not expire next year. Con­
sequently, . the Subcommittee heard testimony regarding the broad 
range of issues 'connected with the Act. The Subcommittee held eight­
een days of hearings, including regional hearings in Montgomery, 
Alabama and Austin, Texas, during which testimony was heard from 
over 100 witnesses. Witnesses included current and former Members 
of Conwess; two former Assistant Attorneys General of the U.S. 
Department of Justice, representatives of the U.S. Commission on 

1 H.R. 3112, H .R. 3198, H.R. 1731, H.R. 1407, and H .R. 2942. 



3 

Civil Rights, national, state, and local civil rights leaders, State and 
local government officials, representatives of various civic, union and 
religious organizations, private citizens, as well as social scientists and 
attorneys who specialize in voting discrimination issues. Representa­
tives from the U.S. Department of Justice were invited to testify but 
were unable to do so prior to the completion of the hearing process. In 
addition, the Subcommittee encouraged witnesses who were unable to 
appear personally to submit statements for the record. 

On July 21, 1981, the Subcommittee met and by unanimous voice 
vote ordered H.R. 3112 reported, without amendment, to the full 
Committee. 

On July 28, 30, and 31, the full Committee on th Judiciary met to 
consider H.R. 3112. On July 31, the full Committee, by a vote of 23 
to 1, ordered the bill reported to the House, with a single amendment 
in the nature of a substitute. 

GENERAL STATEMENT 

BACKGROUND 

The right to vote is preservative of all ooher rights. As a conse­
quence, our history is replete with actions by the Congress over the 
last 100 years to extend and safeguard the franchise. The Voting Rights 
Aot of 1965 has been hailed as the most important civil rights bill 
enacted by Congress. Unquestionably, it has been the most effective 
tool for protecting ,the right to vote. The Act provides evidence of 
tJhis Nation's commitment to assure thrut none of its citizens are de­
prived of this most basic right guaranteed by the fourteenth and fif­
teenth amendments. 

The Voting Rights Act of 1965 
The V orting Rights Act of 1965 was primarily designed to provide 

swift, administrative relief where there was compelling evidence that, 
despite 'a history o'£ litigation, racial discrimination continued to 
plague the electoral process, thereby denying minorities the right 
to exercise effectively their fra;nchise. The ineffectiveness of the case-­
by-case litigrutive approach is documented in the case law itself, as 
well as in the legislative history of voting rights legisla;tion passed 
in 1957, 1960, 1964, and 1965. The U.S. Supreme Court, in South 
Carolina v. Katzenbach, 383 U.S. 301 (1966), summed up the legis­
lative history as follows: 

Voting suits are unusually onerous to prepare, sometimes 
requiring ae many ae 6,000 man-houre spent combing through 
registration records in preparation for trial. Litigation has 
been exceedingly slow, in part booause of the ample oppor­
tunities for delay afforded voting officials and others involved 
in the proceedings. Even when favorable decisions have 
finally been obtained, some of the States affected have merely 
swi,tched to discriminatory devices not covered by the fed­
eral decrees or have enacted difficult new tests designed to 
prolong the existing disparity between white and Negro reg­
istration. Alternatively, certain local officials have defied and 



4 

evaded court orders or have simply closed their registration 
offices to freeze the voting rolls.2 

Testimony during the recent hearings cited specific examples of 
how the pre-1965 litigative approach was unsuccessful in eliminating 
the myri,ad methods devised to keep minorities from participating 
in the electoral process.3 One witness described litigation which went 
on for 30 years to abolish the white primary, which was used in Texas 
and elsewhere. The issue was whether blacks could be excluded from 
participating .in the Democratic Party primaries, where the Demo­
cratic nominaJtion for office was tantamount to election. During that 
30 year period, th~ issue went to the U.S. Supreme Court four times 
because after each decision, the state would enact legislative or ad­
ministrative hurdles to frustrate further tJhe decision of the Court. 
"The new technique had to be re-litigated until the Court concluded 
in Terry v. Aaarn,s (345 U.S. 461), as it had in Lmne v. Wilson (307 
U.S. 268), 'that the 15th Amendment was intended to nullify sophis­
tic8Jted as well as simple-minded modes of discrimination.'" 4 

Qognizant of this historical failure to guarantee the rights set forth 
in the fifteenth amendment, Congress set out, in 1965, to devise legis­
lation which would accomplish a twofold goal. First, based on case law 
history and testimony presented to it, Congress realized that there 
were specific practices and procedures which had historically been 
used, as part of a pattern and practice of abuses, to prevent blacks 
from participating in the electoral process. To address this problem, 
Congress suspended the use of literacy tests and other devices in any 
State or political subdivision where such test or device was in effect on 
November 1, 1964 a;rul where less than 50 percent of voting age persons 
were registered for or voted in the November 1964 presidential elec­
tion. The rationale for this formula or "trigger" was that low voter 
registration and participation resulted from the use of such tests or 
devices. 

Second, to assure that old devices for disfranchisement would not 
simply be replaced by new ones, to the administrative preclearance 
remedy of Section 5 of the Act was devised. Through this remedy the 
Congress intended to provide an expeditious and effective review which 
would assure that practices or procedures other than those directly ad­
dressed in the legislation-that is, literacy tests and other devices, and 
the poll tax-would not be used to thwart the will of the Congress 
finally to secure the franchise for blacks. 

The jurisdictions which met the trigger set forth in Section 4 (b) 
of the 1965 Act were: the states of Alabama, Alaska, Georgia, Lou­
isiana, Mississippi, South Carolina, and Virginia; forty counties in 

· North Carolina; four counties in Arizoria; Honolulu County, Hawaii; 
and Elmore County, Idaho.5 These jurisdictions were required to meet 

2 South Carolina v. Katzenbach, supra, at P- _ 
: pd~e Hearings. _May 27, 1981, Herbert 0. Reid, Sr. and Jack Greenberg. 

• Of these covered jurisdictions, the following successfully sued to exempt themselves 
or bailout from the Act's spi'Cial coverage: Ala,ska [Alaska v. United States. Civil No. 101-
66 (D.D.C. August 17. 1966)]: Wake County, North Carolina [Wake County v. United 
States, Civil No. 1198--66 (D.D:C. January 2:l. 1967)] : Elmor" County, Idaho [Elmore 
County v. United States, Civil No. 320-66 (D.D.C. September 23. 1966)] : and Apache. 
Navajo and Coconino Counties. Arizona [Apache County v. United States, 256 F. Supp. 903 
(D.D.C. 1966) ]. It Is important to note that the Voting Rights Act does In fact provide for 
such bailout or exemption on the part of a covered jurlsdi~tlon. 



5 

the obligations of Section 5 for five years, that is, to submit or "pre­
clear'' any election-related practice or procedure which its sought to 
enact or administer, if it was different from that which was in force or 
effect on November 1, 1964. Submissions could be precleared either by 
the Attorney General of the United States or by the U.S. District 
Court for the District of Columbia. 

In addition to the Section 5 preclearance provision, the 1965 Act 
also authorized the Attorney General of the United States to send 
:federal examiners to jurisdictions which met the Section 4 trigger for 
purposes of listing eligible persons on the voting rolls, and to send 
federal observers to oversee voting day activities.6 

Equally important, Congress strengthened existing remedies in vot­
ing discrimination cases for areas of the country other than those which 
were triggered into the special provisions of the Act. The Act broadly 
proscribed voting practices or procedures which deny or abridge the 
right to vote because of race or color; federal courts were authorized 
to order preclearance anywhere in the country if they found voting 
abuses justifying equitable relief; authorization was also provided so 
that federal examiners and observers could be assigned anywhere in 
the country, if the courts deemed it necessary.7

. 

1970 amendments 
In 1969, Congress undertook to review the progress made under the 

1965 Voting Rights Act, since covered jurisdiction would otherwise_ be 
eligible to bailout from coverage of the special provisions of the Act in 
1970. While encouraged by the progress in registration and voting 
which had occurred since the passage of the Act, Congress also recog­
nized that racial discrimination in voting continued to exist and that 
the Section 5 preclearance provision had only been minimally enforced. 

In August 1970, Congress passed the Voting Rights Act Amend­
ments of 1970 (Public Law 91-285) which extended coverage of Sec­
tion 5, and the other special provisions of the Act, for an additional 
five years for the jurisdictions whose coverage was triggered by the 
1965 Act. Congress also brought under the Act's special coverage, 
states and political subdivisions which maintained a test or device oh 
November 1, 1968 and which had less than a 50 percent turnout or 
registration rate for the November 1968 presidential election. Lastly, 
it established a five year nationwide ban on the use of literacy tests or 
other devices. The newly covered jurisdictions also became subject to 
the special provisions, or remedies, of the Act. Jurisdictions so affected 
included: 3 counties (Bronx, Kings and New York counties) in New 
York; one county in ·w·yoming; 2 counties (Monterey and Yuba coun­
ties) in California; eight counties in Arizona ; four Election Districts 
in Alaska; and towns in Connecticut, New Hampshire, Maine, and 
Massachusetts. 8 

6 See Sections 2, 3(c). 3(a), respectively. 
1 These provisions (I.e. , the Section 4 trigger mechanism, Section 5 preclearance and 

Sections 6 and 8, authorizing the use of federal examiners and observers) are commonly 
referred to as the special provisions or remedies of the Act. 

8 The State of Alaska; Elmore <County, Idaho, and Apache, Coconino, and Navajo Coun­
ties in Arizona had been covered in 1965 and subsequently, released from the Act's coverage. 
The 1970 amendments resulted in these areas being re-covered. However, with respect to the 
State of Alaska only certain election districts were re-covered and not the entire state The 
ele<:tion districts In Alaska were subsequently exempted in 1972 [ Alaska v. United States, 
Civ1.1 No. 2122-71 (D.D.C. July 2, 1972)) . The three New York counties were exempted in 
Anrll1972. but the exemption was rescinded and the three counties r ecovered two years later 
[New York v. United States, Civil No. 2419-71 (D.D.C.) (orders of April 13, ·1972, January 
10, 1974 and April 30, 1974) , afl''d 95 S. Ct. 166 (1974 (per curiam)]. 



6 

1975 emtension 
Since jurisdictions which were originally brought under the special 

coverage provisions of the Voting Rights Act woud become eligible to 
bail out from under such coverage on August 6, 1975, the Congress, 
early that year, reviewed the progress which had occurred under the 
Act. Again Congress noted the increase in voter participation among 
blacks. Nevertheless Congress found that there continued to be a sig­
nificant disparity between the percentage of black and white registered 
voters. Moreover, Congress learned that to date Section 5 had only had 
a limited impact. First, it was not until 1969 and 1971 that the U.S. 
Supreme Court rendered its first decisions interpreting the scope of 
Section 5. (Allen v. State Board of Elections. 393 U.S. 544); and (Per­
kins v. Matthews, 400 U.S. 379). Second, the Department of .Tustice 
did not issue Section 5 regulations giving guidance to coven'd juris­
dictions as to their obligations under that provision, until Septem­
ber 10, 1971. Lastly, it was believed preclearance would prove most 
valuable in assuring that the 1980 reapportionments in the covered 
jurisdictions would not result in racial gerrymandering. 

In August of 1975, Congress extended the Voting Rights Act of 
1965 for 7 years, so that jurisdictions originnJly subject to the speeial 
provisions of the Act remained covered until August 6, 1982. Congress 
also made permanent the nationwide ban on literacy tests and other 
devices. which it had imposed on a temporary basis in 1970. 

In addition, based on an extensive record, filled with examples of 
the barriers to regi~tration and effective voting encountered bv lan­
guage minority citizens in the electoral process, Congress expanded the 
coveraP.:e of the Act to protect. such citizens from effective disfranchise­
ment. It found that voting discrimination against language minority 
citizens: 

is pervasive and national in scope. Such minority citizens are 
from environments in which the dominant language is other 
than En!.rlish. In addition they have been denied equal educa­
tional opporbmit.ies by State and local P."Overnments. resulting 
in severe disabilities and continuing illiteracy in the English 
lan!Yua!,!'e. The Congress further finds that. where State· and 
local officill.ls condlicted elections only in English. language 
minority citizPns are excluded from participating in the elec­
toral process. In many areas of the country, this exdnsion is 
a!,!'gravated bv acts of physical, economic, and political in­
timidation. The Conp-ress declares th::~t. in order to enforce 
the guarantees of the Fonrt.Penth o,nd Fifteenth AmPnclments 
to the TTnited States Constitntion. it is necessary to eliminate 
such discriminlltion by prohihitin.q: English-only elections, 
and by prescribing other remedial devices.9 

While coo:niz~>.nt of the breRiHh of votinl! nic;rrimination Pxist.ing 
against surh citizens. ConP."rPSS n.lso rero!!Ilized that the severitv of the 
nrohlems niffPred ll.rr0PS the count.rv. Conspquentlv, in exna.ndin!!' the 
Act .. two distinct trigO'ers were develoned to assi1re that areas· with 
different barriers to the f1lll particination o:f language minorities in 
the electoral process would not be subject to the same remedies. 

• 43 U.S.C. 1973 a. 



7 

To proscribe discrimination which, in many cases, was as egregous 
as that outlined in 1965,'° Congress amended the definition of "test 
or device" to include the use of .English-only election materials in juris­
dictions where a single language minority group comprised more than 
5 percent of the voting age population. It then extended coverage of 
t.he Act to those jurisdictions which had used a test or device as of No­
vember I, 1972 and had registration or voter turnout rates less than 50 
percent. Jurisdictions meeting this trigger and thus subject to the spe­
cial provisions of the Act, including precleal"ance, were the States of 
Alaska, Arizona, and Texas; 2 counties in California; 1 county in 
Colorado; 5 counties in Florida; 2 townships in Michigan; 1 county 
in North Carolina; and 3 counties in South Dakota. 

Where discrimination in voting against language minority citizens 
was less severe, although still disturbing, Congress required that lan­
guage assistance be provided throughout the electoral process where 
members of a single language minority comprise more than 5 percent 
of the voting age population and the illiteracy rate of such persons as a 
group is higher than the national illiteracy rate. Jurisdictions covered 
under this second trigger were: alll43 counties in Texas were individ­
ually covered under this trigger; all 32 coun~ies in New Mexico; all 
14 counties in Arizona; 39 counties in California; 34 in Colorado; 
and 25 in Oklahoma. 

PROGRESS UNDER THE ACT 

The Committee recognizes that there has been much progress in 
increasing registration and voting rates for minorities since the pas­
sage of the Voting Rights Act of 1965; its sometimes dramatic suc­
cesses demonstrates most clearly that it has been the most effective 
tool for protecting voting rights. 

Prior to 1965, the precentage of black registered voters in the now 
covered states was 29 percent; registration for whites stood at 73 
percent. 

Today, in many of the states covered by the Act, more than half 
the eligible black citizens of voting age are registered, and in some 
states the number is even higher. Likewise, in Texas, registration 
among Hispanics has increased by two-thirds. 

In much the same manner that progress can be seen in increased 
!'egistration rates for minorities covered under the Act, improvements 
m the election of minority elected officials have also occurred.U 

In July 1980, a total of 2,042 blacks held elective office in Southern 
States covered by the Act, compared with 964 six years ago. And in 
Texas and other southwestem areas first covered in 1975, Hispanics 
and blacks have been elected to office in many cities and counties for 
the first time. In Texas, particularly, there has been a 30 percent in­
crease in the number of Hispanics elected officials between 197(). and 
19RO. 

Y e~ these gains are fragile. The registration figures for minorities 
remam substantially lower than those for white voters. 

1o See 1975 Hearing Record . 
11 19Rl Report of U.S. Commission on Ch-11 Ri,::hts. Supra. See also Rolando Rlos 

"The Voting Ri,::hts A~t: Its Effect In T<>xas." Ap~ll 1981, n. 2, submitted b~· William 
Vela~quez, Executiye Director, Southwest Voter Reg1stration Education Project (May 6th 
Hearmg). 



8 

The evidence is similar for the jurisdictions covered in 1975. Exam­
ple, ·· in two covered South Dakota counties, 77.3 percent of whites 
were registered but only 52.7 percent of American Indians were reg­
istered. In Arizona, registration rate for whites was 71.5 percent but 
48 percent for American Indians and 60.9 percent for Hispanics. 
Lastly, in New York's three covered counties, 69.8 percent of whites 
were registered as compared to a rate for Hispanics of 51.4 percentY 

The number of minority elected officials is still a fraction of the 
t~tal number of elected officials; there are many jurisdictions w~th 
large minority populations which have no minority elected officials 
and which have never had any.13 As Table 1, below, shows, only 5 
percent Of elected officials in the southern covered states are black, in 
an area where 26 percent of the population isblack.14 

12 1981 Report of the U.S. Commission on Civil Rights, Supra. 
13 See generally, Rolando Rios, "The Voting Rights Act: Its Ell'ect In Texas," supra; 

Testimony of Joaquin Avila, General Counsel, Mexican American Legal Defense and 
Educatl()n Fund (MALDEF) . 

14 See. Hearings, June 17, 1981, Eddie Williams, President of the Joint Center for 
Political Studies. 



Table 1 

Number and Percent of Black Elected Officials 
In States Originally Covered by the Voting Rights Act, 1968 and 1980* 

Percent of Percent of 
Number of Elective Number of Elective 

Number of Black Offices Number of Black Offices 
Percent Elective Elected Held by Elective Elected Held by 
Black Offices Officials Blacks Offices Officials Blacks 

State Population 1968 1968 1968 1980 1980 1980 

Alabama 24.5 4,060 24 .59 4,151 238 5.73 

Georgia 26.2 7,226 21 . 29 6,660 249 3.74 

Louisiana 29.6 4,761 37 .78 4,710 363 7.71 

Mississippi 35.1 4,761 29 . 61 5,271 387 7. 34 

North Caro 1 ina 21.5 5,504 10 . 18 5,295 247 4.66 

South Carolina 31.0 3,078 11 . 36 3,225 238 7. 38 

Virginia 18. 7 3,587 24 . 67 3,041 91 2.99 

TOTAL 25.83 32,977 .ill. ~ 32,353 1,813 5. 60 

*Source: National Roster of Black Elected Officials--1980. Joint Center for Political Studies, Washington, D.C. 



10 
\ 
Even where minorities have been elected, figures can be deceptive. 

Most o£ these elected officials are concentratedin local positions. Not­
withstanding the highly publicized election o£ black mayors in large 
cities, Table 2 clearly indicates that the overwhelming number o£ 
black mayors are chief executives o£ towns which are all black or 
nearly so. For example, . blacks hold 70 mayoral positions in these 
covered states; o£ these, 35 are in towns with a population o£ under 
1,000 and which is 80 percent black.15 

State 

AL 

GA 

LA 

MS 

sc 

TX 

VA 

TOTAL 

Table 2 

Population Distribution of Cities with Black Mayors 

Within States Totally Covered by the Voting Rights Act 

# of Cities TOTAL POPULATION % BLACK POPULATION 
With Number of Cities With Number of Cities With 

Black Mayors A Total Population Of: A Black Population Of: 
Under 1000- Over Under 60- 80% or 
1000 3000 3000 60% 79% More 

15 8 2 5 1 6 8 

6 3 1 2 2 4 0 

11 4 3 4 3 3 5 

17 10 6 1 0 7 10 

13 11 0 2 3 2 8 

5 3 0 2 0 0 5 

_l _Q _Q _l _l _Q _Q 

70 39 12 19 12 22 36 

55.7) (17 . 1) (27.1) (17 .1) (31.4) (51 . 4) 

Source : National Roster of Black Elected Officials, 1980. JCPS, Vol. 10. 

U.S . Census Bureau, Corrections to Advance Reports PHC80-V, 1980 . 

15 Testimony of Eddie Williams, Supra. 



11 

As is evident from this review of the progress which has taken place 
under the Act, particularly since the 1975 extension, there is much to be 
hopeful about. At the same time, discrimination continues today to 
affect the ability of minorities to participate effectively within the 
political process. 

The Committee notes 
that electoral gains by minorities since 1965 have not taken 
on such a permanence as to render them immune to attempts 
by opponents of equality to diminish their political influ­
ence.18 

(I) t is too early to conclude that the effects of decades of 
discrimination against blacks and other minorities have been 
eradicated and that they are now in a position to compete in 
the political arena against non-minorities on an equal basis 
without the assistance of the Voting Rights Act.17 

COMPLIANCE WITH TRE ACT 

Section 5 review is designed to .deter discriminatory voting changes 
and ferret out measures which 'could undercut minority voter partici­
pation and dilute minority voting strength. Approximately 900 juris­
dictions in 23 fully or partially covered states are required to submit 
voting changes. . 

Thirty-five thousand voting changes have been submitted to the 
Attorney General for preclearance under Section 5 since 1965. The 
overwhelming majority, 30,000, were submitted between 1975 apd 1980. 
Objections have been interposed to roughly 800 changes over the life of 
the Act; more than 500 have been interposed since 1975. Almost all of 
the states have had as many objections interposed within the last five 
years as had been filed against them in the preceding ten years. These 
changes touch upon every aspect of the electoral process, as shown by 
the chart below. 

1a See Hearings, July 13, 1981 , Drew Days, III, former U.S. Assistant Attorney General, 
Department of Justice). 

17 I d. 



NUMBER OF CHANGES TO WHICH OBJECTIONS HAVE BEEN 
INTERPOSED BY THE DEPARTMENT OF JUSTICE BY TYPE 

AND YEAR FROM 1965 - -FEBRUARY 28, 1981 

1965 1970 
to to 

1969 1:2.IL_ 1975 1976 1977 1978 1979 1980 1981 TOTAL 

TYPE OF CHANGE 

REDISTRICTING 55 ll ll 3 12 2 9 103 
ANNEXATION 9 86 68 55 l 15 9 l 243 
POLLING PLACE 12 3 2 7 2 4 30 
PRECINCT 5 2 7 
REREGISTRATION OR VOTER 

PURGE l l l 3 
INCORPORATION l l 3 5 1-' 

t-.:) 
BILINGUAL PROCEDURES 3 2 l 6 
METHOD OF ELECTION 4 145 31 61 38 24 l7 14 3 334 
FORM OF GOVERNMENT 4 l l l 1 2 10 
CONSOLIDATION OR DIVISION 

OF POLITICAL UNITS l l l 2 l l 7 
SPECIAL ELECTION l l l l 3 7 
VOTING METHODS 1 1 2 
CANDIDATE QUALIFICATION 2 5 2 l l ll 
VOTER REGISTRATION 

PROCEDURE , 1 4 l l 2 9 
MISCELLANEOUS 14 8 l 3 2 4 2 34 

TOTALS 22 251 138 151 104 49 45 51 4 811 

SOURCE: U.S. Department of Justice, Civil Rights Division, Voting Section, February, 1981, 



13 

This is hardly a complete picture since not all election changes 
which have a discriminatory effect have been submitted to the At­
torney General or to the D.C. District Court for review, as required 
by Section 5. A number of covered jurisdictions continue to defy the 
Act by either failing to submit changes or boldly implementing others 
to which objections have been interposed by the Attorney General. 

Although the Department lacks an independent mechanism to 
monitor voting changes, the Attorney General has attempted to use 
several methods to identify unsubmitted changes including the exist­
ing preclearance process, unsolicited notification of changes from ag­
gneved persons, and review of voting rights litigation by private 
parties. Upon receipt of any information that the jurisdiction has 
made a voting-connected change within the meaning of Section 5, the 
Department sends a "please submit" letter to the jurisdiction indi­
cating the changes are legally unenforceable unless precleared. In 
1980, the Department sent 124 such letters.18 

Many covered jurisdictions made changes shortly after passage of 
the 1965 Act, a number of which went unreviewed until recentlyY In 
Georgia, enforcement suits filed between 1976 and 1980 against Dooly, 
Miller, Calhoun, Clay, Early and Morgan counties required those 
jurisdictions to implement less discriminatory district elections rather 
than the at-large elections instituted in 1965 without preclearance.20 

A 1981 court order required Clio, Alabama to preclear annexations 
made in 1967 and 1976. The two ignored the Attorney General's 1976 
please submit request and continued to hold illegal municipal elec-
6ons as recently as 1980.21 Responding to a 1975 please submit request 
from the Attorney General, officials of Indianola, Mississippi acknowl­
edged having made annexations without preclearance in 1966 and 1967 
but failed to identify a 1965 annexation which doubled the white pop­
ulation and significantly dilutedl)lack voting strength for the next 16 
years. Litigation brought in 1980 finally enforced Section 5.22 

In Texas, minorities have used the Act to insure Section 5 enforce­
ment. After two Section 5 enforcement suits and two letters of ob­
jection, Medina County-with a Chicano population of 43.4 percent 
in 1980- finally acquiesced to a non-discriminatory redistricting plan 
which enabled Chicanos to participate meaningfully in the political 
process. 

Other jurisdictions continue to ignore objections interposed by the 
Attorney General. Sumter County, Georgia refuses to honor a 1973 
objection to an at-large method of electing the school Board. And a 
1976 objection to the Edgefield County, South Carolina at-large elec­
tion law goes unheeded.23 

CoNTINUED VoTING RIGHTS DrscRIMI:YATION 

rr:he Voting Rights Act was designed in 1965 to provide a speedy 
review mechanism to correct existing Fifteenth Amendment violations 
and to prevent future voting discrimination. Extensive testimony was 

18 "The Voting Rights Act: Unfulfilled Goals" , a Report of the U.S. Commission on Civil 
Rights, September 1981, p. 194. -

19 Hearings, July 13, 1981, Drew S. Days, III. 
20 Hearings, June 3, 1981, Laughlin McDonald. 
21 Id., Abigail Turner. 
22 Hearings, J une 12, 1981, Charles Victor 1\fcTeer. 
23 Hearings, 1\fay 13, 1981, Jessie Jack.son. 



14 

presented detailing the variety of methods used by inventive registrars 
and other state officials to keep racial minorities off the voting rolls and 
out of the voting booths. · · 

As to those pockets of voting discrimination outside the covered 
jurisdictions the Act strengthened the remedies available through 
voting rights litigation. As the court noted in South Carolina v. Katz­
enbach, "(l) egistlation need not deal with all phases of a problem in 
the same way, so long as the distinction d:rawn have some basis in prac­
tical experience. 24 

Despite the gains in increased minority registration and voting and 
in the number of minority elected officials, the Committee has observed, 
during each consideration of the extension of the Act, continued manip­
ulation of registration procedures and the electoral process which 
effectively exclude minority participation from all stages of the polit­
ical process. 

The observable consequence of exclusion from government to the 
minority communities in the covered jurisdictions has been (1) fewer 
services from government agencies, (2) failure to secure a share of 
local government employment, (3) disproportionate allocation of 
funds, location and type of capital projects, ( 4) lack of equal access to 
health and safety related services, as well as sports and recreational 
facilities, ( 5) less than equal benefit from the use of funds for cultural 
facilities, and (6) location of undesirable facilities, e.g., garbage 
dumps, or dog pounds, in minority areas.25 

A study conducted by the U.S. Commission on Civil Rights on the 
enforcement of the Act since 1975, further buttresses the Committee's 
findings that voting violations are still occurring with shocking fre­
quency.26 For the purposes of this report, only some violations will be 
high-lighted. 

DISCRIMINATION IN REGISTRATION AND VOTING 

Hearings on H.R. 3112 indicate that there are numerous practices 
and procedures which act as continued barriers to registration and 
voting. 

These practices include: inconvenient location and hours of regis­
tration, dual registration for county and city elections, refusal to ap­
point minority registration and election officials, intimidation and 
harassment, frequent and unnecessary purgings and burdensome re­
registration requirements, and failure to provide or abusive manipula­
tion of assistance to illiterates. 

The U.S. Commission on Civil .Rights reports that questioning by 
registration officials, especially if the official's attitude was "nasty" 
could easily deter some blacks from registering, because "they are 
scared of whites asking them questions. They (especially some of the 
older population) still remember the way t.hings used to be to register 
and having to go through a lot of questions reminds them of those 
times." 27 · 

'"F/nuf/1 Ca.rolina Y. Katzenbach, supra. at I!HS. 
25 Hearings, June 3, 1981, Dr. Brian Sherman; U.S. Commission on Civil Rights, State 

Advisory Committee Report, Laure! and Laure!: A City Divided (1981) . 
2• U.S. Commission on Civil Rights "The Voting Rights Act: Unfulfilled Goals: ·Septem­

ber, 1981. 
2; U.S. Commission on Civil Rights, supra, at 55. 



15 

Intimidation of voters was also reported in W rightsVliHe, Georgia 
(.Johnson County). A well-known black community leader who as­
sisted black voters reported an incident in which blacks were accused 
by the election official of "blocking the entrance . to the courthouse," 
which is the polling place. When he explained that he and the other 
blacks were standing an acceptable distance from the polling place, the 
election official called the state troopers to get them to leave. The 
respondent continued standing in front of the courthouse, and the 
election official called the sheriff and state troopers again. The re­
spondent said that Federal Observers from the Department of Justice 
who were monitoring the 'activities told the official that he was not 
bJ·eaking the law. "Later, some white men in a truck stopped in front 
of the polling place. Guns were visible in the truck." 28 They began 
heckling black people at the polls. The blacks left the scene (some of 
them potential voters) while whites were not harassed by the official or 
the white men. An incident such as the one in Wrightsville discourages 
minorities from voting. 

Evidence of intimidation and harassment was also found in Phoenix, 
Alabama, where Arthur Sumbry was convicted and sentenced to four 
years tor unauthorized voter registration. Mr. Sumbray was assisting 
his pregnant wife, a deputy registrar.29 Similar evidence exists in 
Pickens County, which has a black population of 42 percent. Sixty­
seven percent of the eligible whites are registered; the county refuses 
to appoint deputy registrars; voting registrars have called the sheriff 
when groups of blacks have come to register, the sheriff has remained 
throughout their registration.30 

New elections were ordered in Clio, Alabama in a suit brought in 
March, 1981, to enforce Section 5. A black candidate who had lost 
in the 1980 council election by five votes and was a candidate in the 
new council election believed she faced serious economic problems 
because of her candidacy. A loan secured by a second mortgage on 
her home from the only bank in the town was ordered to be made 
current two weeks before the town council election. The president of 
the bank called her with the notice; he has also been the Mayor of Clio 
for the past 25 years. After she filed an election contest in State court, 
the Mayor came to her house about the note. 31 

In 1975 the State of Texas, pursuant to Section 5, submitted a bill 
to the Attorney General requiring purging and re-registration. The 
bill reqnired a purge of all currently registered voters and terminated 
the registration of those who failed to re-register by March 1, 1976. 

The Attorney General objected to the change. He found that the 
purge had a potentially discriminatory effect: 

'Vith regard to cognizable minority groups in Texas, 
namely, black and Mexican-Americans, a study of their his­
torical voting problems and a review of statistical data, in­
cluding that relating to literacy, disclose that a total voter 
registration purge under existing circumstances may have a 
discriminatory effect on their voting rights .. . Moreover, 

•• U.S. Commission on Civil Rights, supra, p. 75. 
20 Hearings, June 1981, Joh n Nettles. 
ao I d., Abigail Turner. 
"ld. 



16 

representations have been made to this office that a require­
ment that everyone register anew, on the heels of registra­
tion .difficulties experienced in the past, could cause significant 
frustration and result in creating voter apathy among 
minority citizens . . . 

Given these circumstances, the Attorney General stressed that: 
We are unable to conclude . . . that implementation of 

such a purge in Texas will not have the effect of discriminat­
ing on account of race or color and language minority status. 32 

The Civil Rights Commission noted that frequently discriminatory 
practices and procedures are implemented when black political par­
ticipatiOn is perceived as threatening to the status quo.33 Witnesses 
from Alabama reported that it is no accident that five of the seven 
counties designated for re-registration in 1981 are in the "black belt." 
These re-registration bills are passed hy the legislature as local legis­
lation under "Gentlemen's Agreements." The State Representative of 
Perry County, in the black belt, won his last election by 82 votes. The 
sponsor of the Wilcox and Lowndes Counties' hill exempted the pre­
dominantly white counties in his district fvom compliance with the 
registration bill. 

Another Alabama witness contrasted re-identification bills, where 
the burden was on elections officials, e.g. Jefferson County, and where 
the burden was on the voter, e.g., Choctaw County. In Jefferson 
County, which has a black representative in the legislature, the over­
all registration for 'blacks and whites increased by 10 percent follow­
ing the 1979 voter re-identification. In Choctaw County, white regis­
tration declined by 22 percent and black registration by 47 percent 
following the 1978 voter re-registration. 

The proposed Sumter County re-registration bill is similar to Choc­
taw's. Forty-five percent of this rural county's (50 miles long 'and 30 
miles wide) population is below the p<>verty level; sixty-nine percent 
of the population is 'black; the illiteracy rate is high.-The bill requires 
notice of the re-registration in the local newspaper, the hours are lim­
ited to 9 to 4 and re-registration can only occur in the precinct or heat 
where the voter resides.34 

An extensive purge of Wilcox County voter rolls was oonduoted in 
1980. This county has been designated for re-identification in 1981. 
Wilcox is in the black belt. 

In Humboldt County, Nevada, registrars refused to register Indians 
for failing to properly fill out registration cards; non-Indians were 
not subjected to the same scrutiny.35 

Witnesses described dual registration requirements in Mississippi 36 

and Georgia 37 and dual re-identification requirements for voters in 
some areas of Virginia. 38 Most often registration sites are some dis­
tance apart. 

32 U:S. Commission on Civil Rights, supra, p. 65. 
32 Hearings, June 16, 1981. Raymond Brown. 
34 Hearings, June 3, 1981. Eddie Hardaway. John Nettles, and Abigail Turner. 
""U.S. v. Humboldt County, Nevada, Civil Actlo!l'No:-R 70-0144 HEC (D. Nev. 1970.) . 
•• Hearings, 1\iay 28. 1981. Rims Barber. 
•• Hearings, June 3, 1981, Laughlin McDonald. 
38 Ibid., May 20, 1981, Michael Brown. -



17 

Witnesses from Alabama and Georgia described the failure of elec­
tions officials to appoint additiOIIl!al registrars. In 1980, Dekalb County, 
Georgia officials adopted a policy to stop requests by community 
groups to conduct voter registration drives. Eighty-one percent of the 
eligible whites in the county were registered by only 24 percent of the 
eligible black v;oters. The League of Women Voters brought a Sec­
tion 5 enforcement suit. The district court ruled the policy was a 
change withirn the meaning of Section 5. An objection was interposed 
by the Attorney General. 

A 1980 appeal from rthe Governor of Alabama to all boards of regis­
trars urging appointment of deputy registrars and expanded registra­
tion hours has reportedly generated little positive response.39 

In 1981 a bill was introduced in the Alabama Senate to appoint city 
clerks as voting registrars at the request of the municipal governing 
body, thereby expanding registration opportunities. An amendment 
was offered by the representative from Wilcox and Lowndes Counties 
to exempt ten counties in the black belt from this expanded voting 
procedure. 

Existing and changed locations of polling places can have a negative 
effect on minority voter turnout. For example, in Hopewell, Virginia, 
blacks are concerned about voting at the Veterans of Foreign Wars 
(VFW) Hall located in the white community. According to the presi­
dent of the Virginia chapter of the Southern Christian Leadership 
Conference, there are no voting places in the black community. The 
present location is "like having the polls at a country club." Accord­
ingly, "if one precinct was in the black community, then black people 
might become more accustomed to voting.~' 40 

In October 1979, the Board of Commissioners submitted a polling 
place change in the city of 'Iaylor in Williamson County, Texas, to the 
Attorney General. According to the Department of Justice, the polling 
place would be moved from the "centrally located" City Hall to the 
National Guard Armory which is located "approximately ten to twelve 
blocks !fOrth of City Hall in a predominantly white area." The Depart­
ment concluded that the new polling place would be "a significant 
inconvenience to the city's minority voters who may appear to be 
concentrated in the southern and southwestern portions of the city ... 
[and] may have ... the effect of deterring participation by some 
minority voters in elections ... " The Attorney General was unable 
to conclude that the polling place change would not have the effect of 
discriminating against minorities. 41 

DISCRIMINATION IN THE ELECTORAL PROCESS 

The Congress and the courts have long recognized that protection of 
the franchise extends beyond mere prohibition of official actions 
designed to keep voters away from the polls, it also includes prohibi­
tion of state actions which so manipulate the elections process as Ito 
render voters meaningless. 

"The right to vote can be affected by a dilution of voting power as 
well as by an absolute prohibition on casting a ballot." 42 Certain kinds 

"'Hearings. June 3. 1981, Ahlgail Turner. 
40 U.S. Commission on Civil Rights, supra, p. 75. 
"Id., at p. 77 . 
., A !len v. State Board of Elections, 393 U.S. 544 569 (1969), Reynolds v. Sims, jl77 u.s. 533, 555 (1964). • 

H.Rept. 97-227 --- 3 



18 

of practices or changes, can nullify minorities' ability to elect the 
candidate of their choice just as would prohibiting some of them from 
voting.43 

There are a number of practices and procedures in the electoral 
process which individually or in combination result in inhibiting or 
diluting minority political participation and voting strength. Since 
the passage of the Act in 1965, reports presented by the U.S. Commis­
sion on Civil Rights 44 studies conducted by sociala,nd political scien­
tists,45 and Congressional hearings 46 have all identified discriminatory 
elements of the elections process such as at-laTge elections, high fees 
and bonding requirements, shifts from elective to appointive office, 
majority vote run-off requirements, numbered posts, staggered terms, 
full slate voting requirements, residency requirements, annexations/ 
retrocessions, incorporations, and malapportionment and racial gerry-

Although these elections practices or devices are used throughout 
the country, in the covered jurisdictions, where there is severe racially 
polarized voting, they often dilute emerging minority political 
strength. In fact many of these devices were used to limit political 
participation of newly enfranchised blacks more than a century ago. 
Thus, effectively barring minorities from electing the candidate of 
their choice. 

The Committee heard numerous examples of how at-large elections 
are one of the most effective methods of diluting minority strength in 
the covered jurisdictions. Frequently, this method of election is com­
bined with devices such as anti7single shot voting, majority vote, num­
bered posts, residency restrictions and staggered terms. In Clark 
County, Alabama, the County Commission ( 4 Commissioners, 1 pro­
bate judge) was elected for 4-year terms from single-member districts. 
A majority vote was required for nomination in the Democratic pri­
mary. Blacks constituted 44 percent of the county population (1970 
Census) yet no black had ever been elected to the county Commission. 
In 1971 the county shifted to an at-large system of elections; the 
county's Section 5 submission was not completed until1978. The county 
claimed the shift to the at-large scheme was necessary to comply with 
the one-person-one-vote requirement. It offered no explanation of why 
this could not be done by redistricting the pre-existing single-member 
district system. The Department of Justice objected to the change . 

.. Allen v. State Board of Elections, supra. 
"U.S. Commission on Civil Rights : Political Participation (1968) ; The Voting Ri9hts 

Act: Ten Years After (1975) ; The Voting Rights Act: Unfulfilled Goals (1981) . 
.. E.g .. C. Davidson and G. Korbel, At-Large Elections and Minority-Group Rep•·esenta­

tion : A Re-Examination of Historical and Contemporary Evidence, Journal of Politics (Nov. 
1981) (forthcoming) ; R. Engstrom and M. McDonald, The E lection of Blacks to City Coun­
cils: Clarifying the Impact of Electoral Arrangements on the Seats/Population Relation­
shii!J American Political •Science Review (June 1981); D. Taebel, Minority Representation 
on u<ty Councils, 59 Social Science Quarterly 143- 52 (June 1978) ; T. Robinson and '1'. Dye, 
Reformism and Black Representation on City Councils, 59 Social Science Quarterly 133-41 
(June 1978) ; A. Karnig. Black Representati on on City Councils, 12 Urban Aft'airs Quarterly 
223-43 (Dec. 1976) ; C. Jones, The Impact of Local Election Systems on Black Political Rep­
resentation. 11 Urban Aft'airs Quarterly 345- 56 (March 1976). 

'"U.S. , Con~:ress, House, Subcommittee No. 5 of the Committee on the Judiciary, Voting 
Rights: Hearings on H .R . 6400. 89th Cong., 1s t sess .. 1965, pp. 123-311 ; U.S . Congress, 
Senate Subcommittee on Constitutional Rights of the Committee on the Judi.c!ary, Amend­
ments to the Voting Rights Act of 1965: Hearings on S. 818, S. 2456 . S. 25 07, and Title IV 
of S. 2 02 9, 91st Cong., 1st and 2nd sess., 1969 and 1970, pp. 28-87, 396- 431, 661- 62; U.S. 
Congress, House. Subcommittee on Civil and Constitutional Rights of the Committee on the 
Judicia ry, Extension of the Voting Rights Act: Hearing on H.R. 939, H.R. 2148, H .R . 3247, 
and H .R. 3501 , 94th Cong., "1st sess., 1975, pp. 17-60; U.S. Congress, Senate, Subcommittee 
on Constitutional Rights of the Committee of the Judiciary, Extension of the Voting Rights 
Act of 1965 : Hearings on S. 407, S. 903, S. 1297, S. 1409, and S. 1443. 



19 

Counties in Nebraska and New Mexico were successfully sued' for 
attempting to dilute the Indian vote by instituting at-large election 
voting schemes.H 

Since 1975, the Department of ,Justice has issued approximately 85 
letters of objection disapproving election changes in the State of Texas. 
The proposed'changes found to be discriminatory included: redistrict­
ing; majority vote requirements; numbered posts; polling place 
changes and annexations. In the City of Victoria, Texas, population 
over 50,000, Chicanos started to mobilize their political strength by 
increasing voter turnout. Victoria has an at-large, numbered post, sys­
tem with a majority rule requirement. Realizing that Chicanos were 
gaining in strength, the city annexed numerous areas that were 85 
percent Anglo. When the city tried to preclear the annexations, the 
Attorney General issued a letter of objection. This forced the city to 
adopt a mixed plan. For the first time ever, there is now a Chicano 
on the city council. Minorities there believe that without the Voting 
Ri-ghts Act, such representation would have been delayed indefinitely. 

It is not uncommon for jurisdictions to resubmit, without revision, 
changes to which obiections had previously been interposed. The town 
council in Bishopville, South Carolina had been elected at-large with 
non-sta~gered terms and a plurality vote requirement. Blacks con­
stituted 49 percent of the population but prior to May 1975, no blacks 
had been elected to the council. The town proposed a majority vote 
requirement and staggered terms. Justice objected noting its objection 
to a proposal for staggered terms made the previous year. 

In 1968, the town of Hayneville, Alabama incorporated so that 85 
percent of its electorate was white, in a county which in 1970 was 77 
percent black. The boundaries of the town were in the shape of a cross, 
at the corners of the cross were surrounding black populations which 
were excluded from the incorporated township. The annexation was 
not submitted unti11978. The Attorney General objected to the incor­
poration and advised Haynevme it could comply with the Act by 
expanding its boundaries to include the contiguous black neighbor­
hoods whose resident<; desired to be in the town. The new boundaries, 
incorporating the additional areas, were enacted by the legislature 
in 1980. · 

Racial gerrymandering and malapnortionment have resulted in dis­
tricts of variO'us shapes anrl sizes. In the 1880's the racially gerry­
mandered 7th Cong-ressional District . of South Ca.rolina which was 
one of the bJack districts in the State ·and included Charleston was 
described in the New York Times as having the shape of a '"boa con­
strictor." Distri·ct IV of the 1978 Warren County. Mississirmi redis­
tricting plan was described as having a configuration resembling Ty­
rannosaurus Rex.48 

One Wisconsin town attempted to gerrymander Indians out of 
!heir vo~ing district (in the tradition of Gomillion v. Lightfoot) 
man active attempt to keep them from voting.49 

. Some districts are grossly malapportioned. Seminole County, Geor­
gia had elected its Commlission from the same voting district since 

"U.S. v. Board of Superv!JHJrs of Thurston County. Nebraska., elvll Actron No. 79-0-380 
(D. Neb. 1979) : U.S. v. San Juan County, Civil Action No. 79-507 JB (D.N.M . 1979). 

'"Hearings, May 28th. Frank Parker. 
•• U.S. v. Bartleme, Wisconsin, Civil Action No. 78-C-101 (E. 1) Wisconsin, 1978. 



20 

1933---one_of the districts, Donaldsonville, which is 40 perce;nt of the 
county population and has the largest concentration of bla.cks, had 
over 2,200 voters; Rock Pond had a voting district with 160 regis­
tered voters. A suit was filed in 1980, claiming violations of the con­
stitution. Under a consent decree the county was rea;pportioned into 
5 new voting districts from which a bla;ck was elected from majority 
bla;ck Donaldson ville. 

Benign explanations may be offered for why these methods .have 
been selected, but the results have been telling: minorities remain 
severely underrepresented in county or state-wide positions.49a 

Sect10n 5 is an integral complement to Federal court }litigation in a 
number of jurisdictions. Nowhere is this more clear than Tarrant 
County, Fort Worth. After multi-member state legislative districts 
had been declared unconstitutional in the White v. Regester decision 
(1973), a three-judge federal panel declared that multi-member state 
legislative districts were constitutionally permissible in Tarrant 
County and seven other populous Texas counties. In 1975, under court 
order to adopt single member districts, the state legislature passed 
J!ouse Bill1097, which was objected to in Tarrant and Nueces-Corpus 
Christi Counties on the grounds that the districts were racially gerry­
mandered. 

FEDERAL EXAMINERS AND OBSERVERS 

The Attorney General, as part of the Justice Department's efforts 
to guarantee the right to vote under the fourteenth and fifteenth 
.Amendments and the Voting Rights Act, has the power to send Fed­
eral examiners and observers to jurisdictions covered by the Act, and 
to any State or political subdivision where a court, at the urging of 
the Attorney General or an aggrieved person, finds that such officers 
are appropriate. In the ,former case, the appointment is not automatic. 
Section 6 sets standards which the Attorney General must follow in 
dete:rmining into which covered jurisdictions the ex•aminers will be 
assigned. In the latter case, under Section 3 (a) of the Act, a Federal 
court, in an interlocutory order or in a fina;l judgment, is the arbiter of 
the need for such appointments. 5° In any case, examiners prepare lists 
of voters whom State officia;ls are reqillred to register. · 

Under Section 8 of the Act, whenever Federal exa;miners are serv­
ing in a particular area, the Attorney General may request that the 
Office of Personnel Mana;gement assign one or more persons to observe 
the conduct of an election. These Federal observers monitor the cast-
ing and counting of ballots. · 

During the earlier stages of the Voting Rights Act's life the use o£ 
examiners and observers was more prominent than is the case today. 
In t]le last decade, •for instance, such officers were responsible for in­
creasing minority registration by up to 27 percr.nt in some areas. 51 In 
recent years, the Attorney Genera;} has assigned over 3,000 observers 
to monitor suspect elections. 52 In making such assignments, the At-

••• Hearings, June 3rd. Abigail Turner Ibid., June 16th Raymond Brown. 
"'As is true elsewhere In the Act, incidents that would n<>rmally require appointment 

<>f examiners need n<>t require that result if such Incidents were unique and unlikely to re­
occur. See Sectl<>n 3 (a). 

61 See House Hearings, 1975, p. 171-172. 
""See H<>use Hearings, 1981, Drew Days' testim<>ny, p. 9-10. 



torney General has developed administrative criteri·u which mrist be 
considered beforehand : 

(1) The extent to which those who will run an election are 
prepared so that there are sufficient voting hours and facilities, 
procedural rules for voting are adequately publicized, and non­
discriminatorily selected polling officials are instructed in elec­
tion procedures; 

(2) The confidence of the minority community in the electoral 
process and the individuals conducting the election, including the 
use of minorities as poll officials; 

(3) The possibility of forces outside the official election machi­
nery (such as rac~a,l violence, threats of violence, or a history of 
discrimination in other areas) interfering with the election. 53 

There is no evidence to suggest that this method of Federal inter­
vention in election procedure has been anything but restrained, and 
used sparingly in only the most essential situations. The Committee 
would point out that these officials serve only when the situation 
warrants. 54 

While not used in the same numbers as in previous years, examiners 
and observers were assigned to 500 elections in the covered jurisdic­
tions in 1980.s.s In a separate development recently three counties not 
subject to Section 4 coverage were designated as sites for federal 
examiners.56 The Committee's hearings on H.R. 3112, if anything, 
reflect the continuing existence of activity aimed at the intimidation 
of racial and language minority persons seeking to register and vote. 5 7 

Finally, with the onset of nationwide reapportionment, a process which 
historically has led to actions impairing or diluting the voting rights 
of racial and language minorities, any relaxation of federal protec­
tions would be unwise. The Congress in 1975 specifically desired to 
cover these practices during the current extension period to combat 
this precise situation:58 . • • 

Thus, based upon the record developed in its Subcommittee's hear­
ings and the report of the U.S. Commission on Civil Rights, The Vot­
ing Rights Act: Unfulfilled Goals, the Committee concludes that it 
is essential to continue federal examiners and observers provisions of 
the Act in full force and effect in order to safeguard the gains thus 
far achieved in minority political participation, and to prevent future 
infringements of Voting rights. 

LANGUAGE AssiSTANCE 

BACKGROUND 

As indicated earlier, in 1975 Congress not only extended the time 
period for the coverage of jurisdictions brought under Section 5 in 
the original Act, but also expanded coverage of the Act to enforce 
the 14th and 15th Amendments guarantees of language minority 
citizens. Congress took this step (action) based on the extensive record 

53 U.S. Commission on Civil Rights, supra, p. 22. 
,. See Section 3(a) and Section 6 of the Voting Rights Act. 
65 U.S. Commission on Civil Rights·, supra, p. 268-269. 
50 U.S. Commission on Civil Rights, supra, p. 50-51. 
57 See Committee Hearings, 1981. 
58 See House Debates, 1975. 



22 
before it regarding voting and other discrimination · faced by such 
citizens: 

Testimony was received regarding inadequate numbers of 
minority registration personnel, uncooperative registrars 
(and) disproportionate effect of purging laws on non-English 
speaking citizens because of language barrier ... (t)he exclu­
sion of language minority citizens is further a~gravated by 
acts of physical, economic, and political intimidation when 
these citizens do attempt to exercise their franchise ... Memo­
ries of past discourtesies or physical abuse may compound the 
problems for many language-minority voters. The people in _ 
charge are frequently the same ones who so recently excluded 
minorities from the political process ... The Subcommittee 
(also) heard extensive testimony on the question of ... the 
rules and procedures by which voting strength is translated 
into political strength. The central problem is that of distribu­
tion of the vote. 59 

Furthermore, the Committee learned that : 
Language minority citizens are also excluded from the' elec­

toral process through the use of English-only elections. Of all 
Spanish heritage citizens over 25 years old, for example, rriore 
than 18:9 percent have failed to complete five years of school 
compared to 5.5 percent for the total population. In Texas, 
over 33 percent of the Mexican American population has not 
completed the fifth grade.60 

.. . ... 

Tlie Committee found that the high illiteracy rates referred to are 
"not the result of choice or mere happenstance; 61 they are the result. 
of the failure to afford equal educational opportunities to members of 
language minority groups. This point has repeatedly been highlighted 
by the courts.62 · ·• _ 

As explained above, 63 Congress approached the range of problems 
facing language minority citizens in a twofold manner: The Section 4 
trigger was revised so that the more severe discriminatory practices 
and procedures, which were similar in type and effect to those pro­
hibited in the earlier covered jurisdictions, would be subject to Section 
5 preclearance. The less severe, but equally troubling problems were 
those resulting from high illiteracy levels of members of language 
minority populations. To address these problems, Congress, in Section 
203 of the 1975 Voting Rights Act, provided that language assistance 
for such individuals be made available throughout the election 
process.6• 

The continuing existence of discriminatory practices and procedures 
which are subject to Section 5 preclearance has been addressed else­
where in this report addressed above. Other language assistance issues 
are addressed below . 

.. V<Yting Rights Extension, Report No. 94-196, House of Representatives (1975) here-
inafter referred to as the 1975 Committee Report, at pp. 16-18. 

00 ld. p. 20.-. 
61 ld . 
.. Case citations here from 1975 Committee Report and Vilma Martinez's statement. 
os See discussion in the General Statement portion of this Report . 
.. .Jurisdictions who were covered by the Section 4 trigger in 197u also are required to 

provide language assistance for language minority citizenso. 



SEO'l'lON 203 OF THE AcT 

Basis for Enactment 
The Voting Rights Act, as enacted in 1965, recognized that literacy 

teS'ts and other devices had been used to prevent 'blacks from registering 
and voting; consequently, the use of such tests and devices was barred. 
In the early 1970's a number of federal court decisions found that 
English-only elections in areas with substantial non-English speaking 
citizens operated as a test or device to keep citizens from voting. 

In 1973, the Seventh Circuit Court of Appeals ruled that: 
If a person who cannot read English is entitled to oral 

assistance, if a Negro is entitled to correction of erroneous 
instructions, so a Spanish-speaking Puerto Rican is entitled 
assistance in the language he can read or understand. [Puerto 
Rican Organization for Political Action v. Kusper, 409 F. 2nd 
575, 580 (7th Cir. 1973)] 

In 1974, another New York federal court decision emphasized the 
importance of offering bilingual assistance in order to guarantee the 
right of Spanish-speaking Puerto Rican citizens to vote. The court 
ruled that: 

In ordet that the phrase "the right to vote" be more than an 
empty platitude, a voter must be able effectively to register his 
or her political choice. This involves more than physically 
being able to pull a lever or marking a ballot. It is simply 
fundamental that voting instructions and ballots, in addition 
to any other material which forms part of the official commu­
nication to registered voters prior to an election, must be in 
Spanish as well as English, if the vote of Spanish-speaking 
citizens is not to be seriously impaired. [Torres v. Sachs, 309 
F. Supp. 309, S.D. New York July 25, 1974] 

Even as early as 1923, the U.S. Supreme Court expressly recog­
nized that citizens cannot be denied their fundamental rights because 
of their lack of knowledge of the English language: 

Certain fundamental rights [are guaranteed] to all those 
who speak other languages as well as to those born with 
English on the tongue. Perhaps it would be advantageous if 
all had ready understanding of our ordinary speech, but this 
cannot be coerced by methods which conflict with the Consti­
tution-a desirable end cannot be promoted by prohibited 
means.65 

Furthermore, the U.S. Supreme Court in Gaston County v. United 
States, 395 U.S. 285 (1969), recognized the inextricable relationship 
between the denial of equal educational opportunities and voting- dis­
crimination. The Supreme Court found that blacks who histoncally 
had received inferior education were discriminatorily affected by the 
use of literacy tests in voting even though such tests were no longer 
administered in a discriminatory manner and progress had been made 
in integrating the County's school system.66 

65 Meyer v. Nebraska, 262 U.S. 390, 401. . 
06 See also Lassiter v. Northhampton Election Board; 36() U.S. 45 (1959). 



Tp~:~se series of judic!al findings, together with the overwhelming 
evidence presented in its 1975 hearmgs,"' led Congress to enact Section 
203 of the Voting Rights Act (42 U.S.C.1973 aa-1). 

A recent case reiterated the point made in (}aston Omtnty v. United 
States, supra., that the vestiges of discrimination !).re not easily or 
quickly eradicated: 

While many of the overt forms of discrimination wreaked 
upon Mexican Americans have been eliminated,the long his­
tory of prejudice and deprivation remains a Significant ob­
stacle to equal educational opportunity for these children. 
The deep sense of inferiority, cultural Isolation, and accept­
ance of failure, insti,lled in a people by generations of subJu­
gation, cannot be eradicated merely by integrating the schools 
and repealing the "No Spanish" statutes .... The severe educa­
tional difficulties which Mexican American children in Texas 
public schools continue to experience attest to the intensity 
of those lingering effects of past discriminatory treatment.68 

IMPLEMENTATION 

When Congress enacted Section 203, it had as its goal assuring that 
limited or non-English-speaking citizens 69 would receive the requisite 
language assistance necessary to permit them to effectively exercise 
thmr franchise. While enacted in part, in recognition of the long-term 
effects of unequal educational oppor~unities received by such citizens, 
the purpose of providing this assistance was not to encourage or dis­
courage them from learning English. Language citizens disabled by 
educational disparities, not of their making, to register and to vote 
immediately. 

Specifically, Section 203 requires that election, voter registration, 
and other voting-Telated activities be conducted bilingually if (a) 
more than 5 percent of the citizens of voting age in a jurisdiction are 
members of specified language minority groups and (b) the illiteracy 
rate of such persons, as a group, is higher than the national illiteracy 
rate. Illiteracy is defined as failure to complete the fifth primary grade. 
Coverage of this provision extends to political subdivisions in 30 dif­
ferent states, primarily Texas, New Mexico, Arizona, California, Colo­
rado, and Oklahoma. 

When the U.S. Department of Justice issued its guidelines for the 
implementation of this provision in 1976 and 1977 70 it correctly in­
terpreted the mandate of Section 203 to be that election related ma­
terials and assistance "be provided in a way designed to allow members 

67 Hearings Before the Subcommittee on Civil and Constitutional Rights of the Judi· 
ciary, House of Representatives, Ninety-Fourth Congress, First Session (1975)-herein­
after referred to as the 1975 House Hearings. 

os United States v. 7'ei1Jas, No. 5281 (E.D. Tex. Jan., 9, 1981) at pp. 66-67; (involved 
bilingual education issues). 

oo The Act, as amended in 197:>, provides for language assistance to "language minority" 
citizens, defined (in 42 U.S.C. 1973 aa-'1) as persons of Spanish heritage, American 
Indians, Asian Americans, and Alaskan Natives. The definition was determined on the 
basis of the evidence of voting discrimination before the Congress in 1975. No evidence 
regarding voting problems of other language groups was received. •In fact, Congress 
examined the voter registration statistics for the 1972 Presidential election and found 
that they showed a high degree of participation by other language groups : German, 
79 percent; Italian, 77.5 percent; French, 72.7 percent; Polish, 79.8 percent; · and 
Russian, 85.7 percent. This compared with voter participation for all Spanish ethnic 
groups (Mexicans, Puerto Ricans, others) of 44.4 percent. See U.S. Bureau of the Census 
chart on voter participation In the 1975 Committee Report at p. 23. 

1o 28 CFR Part 55. 



25 

of applicable language minority groups to be effectively informed of 
and pa1ticipate effectively in voting-connected activities.71 The Guide­
lines explicitly state that compliance is best measured by the results 
achieved. 72 They further note that a jurisdiction is more likely to 
achieve compliance if it consults with language minority group mem­
bers and their representatives.73 Both the Justice Department 74 and 
Congress have suggested that an appropriate manner in which to com­
ply with the letter and the spirit of .Section 203 is to focus the language 
assistance so that only those language minority group members who 
actually need such assistance, whether written and/ or oral, receive 
them. This method of providing assistance is referred to as "targeting". 

While the tone set by the Department of Justice Regulations on how 
language assistance should be provided is laudatory, the assistance 
which has been provided to covered jurisdictions has been found to be 
less than vigorous. In 1978, the General Accounting Office (GAO) 
reviewed the enforcement efforts of the Department in this regard. 75 

It found that implementation of the minority language provisions 
could be more effective i£, among other things, the Department clari­
fied what constitutes an effective compliance approach and if they 
provided more assistance to State and local officials. 

More recent studies have also concluded that the Department of 
Justice Guidelines have not provided adequate assistance to State and 
local election officials who are responsible for implementing them,76 

Absent more specific guidance from the Department, or any other 
agency or organization, each affected county was left to devise its own 
method of implementation. 

In 1979, the Federal Elections Commission (FEC) conducted the 
first comprehensive study to review the various methods used by cotm­
ties to implement Section 203.77 The Commission found that the most 
successful county programs, from both a cost and policy effectiveness 
view, were those which greatly utilized the resources available in the 
language minority communities for all facets of the registration and 
election process. Unfortunately, of the administrators responding to 
the FEC's questionnaire, 59 percent reported not having contacted 
such organizations for any purpose. The Commission concluded that 
local election administrators have exerted a limited effort to provide 
comprehensive bilingual election services. They apparently have been 
laboring under a widespread misconception: 

Firstly, that just formalistically making bilingual services 
available, without bringing them to the language minorities 
through the links of community organizations, will produce 
any great demand for them; and secondly, that the point of 
the legislation is primarily to have bilingual forms available 
and that the appropriate measure of its success, therefore, is 

71Jd., Part 55.21b). 
,. Id., Part 55.16. 
73 ld. 
"Id., Part 55.17 . 
.,. Report of the Comptroller General of the United States-Voting Rights Act Enforce­

ment Neens StrPngthening. Fehrnnr:v 6. 1 !l7R. 
7• Bilingual Election Services Report, Vols. I, II, and III, l!'ederal Elections Commission 

(1979) (hereinafter cited as FEC Report) and The Voting Rights Act: Unfulfilled Goals, 
Report of the U.S. Commission on Civil Rights (1981) (hereinafter cited as the 1981 
Civil Rights Commission Report) . 

77 FEC Report, supra. 

H.Rept. 97-227 --- 4 



26 

the number of bilingual forms used. The goal of providing 
bilingual election services is to facilitate the participation of 
language minority citizens in the electoral process. Providing 
bilingual printed materials is only one means toward this end. 
(FEO R eport, Vol. III, at p. 58.) 

The FEC Report further concluded that to assess the need for 
language assistance, administrators should not rely solely on statis­
tics such as the proportion of registered voters who are language 
minority citizens or on the actual demand on election day for minority 
language materials and/or oral assistance. This practice, according 
to the Report, does not address the need to identify and assist un­
registered language minority citizens who may be most in need of 
bilingual election services. Instead, the Report recommended that 
administrators work closely with local community organizations in 
order to attain a more accurate means of assessment. 

RE.CORD FOR CONTINUANCE 

The Committee record overwhelmingly shows that where language 
assistance in registration and voting is implemented in an effective 
manner, the cost accounts for only a small fraction of total election 
expenses.78 This fact is particularly evident in recent elections which 
indicate that costs have decreased significantly over the years/9 Be­
fore the Committee began its hearings, few had closely (examined) 
(analyzed) claims that excessive costs were associated with the im­
plementatiOn of Section 203. As the hearing Record unfolded, it be­
came clear that such general assertions could not be substantiated. 
Thus, one witness, who previously associated himself with such claims, 
testified that it can no longer be contended that the cost of providing 
language assistance in the electoral process is excessive.80 

The testimony and the record before the Subcommittee 81 clearly 
indicate that where cost is a problem it is so only because of factors 
unique to the relevant jurisdiction 8 2 andj or because the method used 
in providing language assistance is not efficient or cost-effective. 

78 ·see testimony of State Senator Polly Baca Barragan of Colorado (May 7 Hearing) ; 
VIlma Martinez, President and General Counsel, Mexican AmeriCan Legal Defense and 
Education Fund (MALDEF) (June 18 Hearing) ; Henry Der, Executive Director, Chinese 
for Affirmative Action (June l Hearing) ; and John Trasvlna, Commissioner, Citizens 
Advisory Committee on Elections, San Francisco. California. (June 18 Hearing) . 

79 The following expenditures for . language assistan~e were reported to the Committee: 
in California, in 1978, Los Angeles County spent $290,000 or • • • percent of total elec­
tion costs: for Orange County. compliance represented only 3.4 percen.t of total election 
costs ; in Santa Clara County, 1.5 percent of the election budget was spent on complian~e; 
and in San Diego County, compliance costs were about 3.4 nercent of total election budget. 
In 1980, Los Angeles decreased Its cost for compliance to $135,000 out of election expedi' 
tures of $7 million, thus representing 1.2 per cent for language assistance. In New York, 
according to the State Attorney General (ISee hearing of June 18) start~up costs were 
the moot ~x· ·ensive and even those weren' t very high-$30,000/ $16 million budget for New 
York City Board of Elections. Translation costs for entire state average $1000/year. 
In Westchester County, New York, he renorted cost of $3,000/year or 2 percent of the 
budget for the County Board of Elections. In New Mexico, accord.lng to Its Lt. Gov­
ernor (May 13 Hearing), cost of providing language assistance for elections is not an 
issue; state pays for local election supplies. In 1980, New Mexko appropriated $15 000 
for the primary election and $100,000 for the general election. · ' 

"'Testimony of Honorable Paul McCloskey (June 18 Hearing). It should be noted that 
~ongressman McCloskey continues to opp<)se Section 203, but not ·on the grounds of costs. 

81 This Includes the FEC RePOrt. supra and the hearing record. 
"' See testimony of the Honorable Mary Estill Bu~hanan, Secretary of State from Colo­

rado (June 23 Hearing) , who points ont that nrlntlng langua"e •ssistanPe motPr'a'• is not 
inherently costly. Cost becomes a problem only because her State requires publication in 
the newspaper. of all matters which will be presented to the electorate prior to an election 
Since. publication costs are high even monolingually, publishing su~h materials bilingually 
raises such costs for her State. 



27 

Surveys conducted in 1976 83 and 1980 84 found that providing bi­
lingual registration and voting materials and oral assistance at the 
polls encourages voter participation among members of language 
minority groups. 

The Committee Hearing record is replete with testimony further 
documenting the positive impact which the 1975 language assistance 
requirement has had in facilitating participation in the political 
process for language minority citizens; in many instances, such assist­
ance encouraged first-time voters to exercise their franchise.8 5 

The overwhelming majority of witnesses rejected the claim that 
providing limited or non-English-speaking citizens language assist­
ance in the registration and voting processes promotes cultural sep­
aratism and discourages linguistic minorities from assimilating into 
mainstream American society. 

One witness who testified regarding the importance of these provi­
sions to Asian American communities pointed out that persons who 
oppose these provisions "do not understand the discriminatory ex­
periences that Chinese Americans have had to suffer and which have 
made it difficult for Chinese Americans particularly the elderly, to 
learn English." 86 It was not until1943, he notes, that Chinese persons 
were permitted to become naturalized citizens. 

This historic prohibition against citizenship by Chinese 
American (has) had a devasting impact on many of today's 
elderly citizens who were denied equal educational opportu­
nities and socio-economic opportunities during; their younger 
days. The brutality of this federal prohibition forced Chinese 
Americans to look inwardly to the Chinatowns of America 
where ... interaction with other Americans occurred in­
frequently. 81 

This witness indicated that despite this history of discrimination, 
Chinese adults are still motivated to learn English and enroll in adult 
English language classes. 

An equally compelling rebuttal was raised by a witness who noted 
that American Indians were not accorded citizenship until 1924 and 
that it was not. until the 1960's that they were able to fully secure the 
right to vote in federal elecions.88 This testimony made clear that 
since there are currently 206 different spoken Indian languages 
among the tribes and only 80 have writing systems, the provisions of 
oral language assistance in the electoral process is of particular im­
portll!nce to American Indian communities. This is particularly so 

sa Mexican American Equal Rights Project, "Survey of the Etfect(s) of Bilingual 
Elections In Three South Texas Counties in 1976: A Summary of Findings," (unpub­
lished) December 1976, San Antonio , Texas. (See Appendix E of the Status of Civtl 
Rights in Texas Report, Vol. I: A Report on the Participation o.f Mexican Americans, 
Blacks and Females In the Political Institutions and Processes in Texas. 1968-1978. 

"'Hearings. May 6, 1981, William C. Velasquez, Executive Director, Southwest Voter 
Re~straUon Education Project. 

See Statements of Dr. Charles Cottrell. Professor of Political Science, St. Mary's Uni­
versity (May 27 hearing; Manuel Ysaguirre, Human Relations Director, AFL-CIO and 
President, State of Texas Labor Connell for Latin American Advancement, (June 5 
Hearing) David Dunbar, General Counsel, Nation9l Congress of American Indians, (June 
18 Hearing) ; Henry Der, ExPCutive Director of Chinese for Affirmative Action (Supra) 
and Joaquin Avila, Aseoci:lJte Counsel for MALDEF. San Antonio, Texas (June 5 Hearing). 

86 Hearing&, June 10, 1981, Henry Der, Executive Director of Chinese for Affirmative 
Action. 

"'Id. 
88 Hearings, David Dunbar, General Counsel for the National Congress of American 

Indians, supra. 



28 

since in some areas, the percentage of adults living on Indian lands 
who are not fluent in English may range as high as 60 to 70 percent. 

Claims that providing language assistance in- the electoral process 
promotes cultural segregation were described as "sadly, woefully, and 
overwhelmingly in error." 89 Testimony clearly showed that contrary 
to such claims, such assistance has the effect of bringing into the in­
tegral and integrated workings of communities, with substantial lan­
guage minority populations, "a sense of comradery, and participatory 
democracy." 90 

Further belying such claims is the high degree of participation by 
Mexican American citizens in the political process within the State 
of New Mexico. New Mexico, with an Hispanic population of 36.6 
percent, has provided bilingual voter assistance almost continuously 
since it became a state. As a consequence, New Mexico is the only (main­
land) state in which Hispanics hold statewide offices-in fact, they 
hold 40 percent of such positions; it also has the largest number of 
Hispanics elected to office~35 percent of its State Senators, 28 percent 
of its State Representatives, and 30 percent of its County Commis­
sioners are Hispanics.91 No other state approaches this degree of inte­
gration of Mexican-American citizens into its political system. One 
witness concluded that such political integration "moves us toward a 
more united and harmonious country." 92 

It is on the basis of all of this evidence that the Committee believes 
it necessary to extend the Section 203 provisions at this time. 

Language assistance is provided to address the vestiges of voting 
discrimination against language minority citizens and is an integral 
part of providing the protections which the Act has sought to extend to 
all minorities. 

AMENDMENTS TO SECTION 2 OF THE .ACT 

As discussed throughout this report, there are numerous voting 
practices and procedures which result in discrimination. In the covered 
jurisdictions, post-1965 discriminatory voting changes are prohibited 
by Section 5. But, many voting and election practices currently in ef­
fect are outside the scope of the Act's preclearance provision, either 
because they were in existence before 1965 or because they arise irr 
jurisdictions not covered by Section 5. 

Under the Voting Rights Act, whether a discriminatory practice or 
procedure is of recent origin affects only the mechanism that triggers 
relief, i.e., litigation or preclearance. The lawfulness of such a practice 
should not vary depending upon when it was adopted, i.e. whether it is 
a change. Yet, while some discriminatory practices and procedures have 
been successfully challenged under Section 2 of the Voting Rights Act, 
the Supreme Court's interpretation of Section 2 in City of Mobile v. 

B1> T he Honorable Barbara Jordan, former Member, U.S. House of Representatives (June 
18 Hearing). 

90 Id. 
91 Testimony of the Honorable Roberto Mondragon, Lieutenant Governor of New Mexico 

(Hearing of May 13). 
92 Testimony of the Honorable Robert .Abrams, .Attorney General of the State of New 

York (Hearing of Jun.e 18). 



29 

Bolden 93 has crewted contusion as to the proof necessary to establish 
a violation under that section. 94 

Prior to Bolden, a violation of Section 2 could be established by 
direct or indirect evidence concerning the context, nature and result 
of the practice at issue. In Bolden, Justice Stewart, wri~ing for the 
plurality, construed Section 2 of the Act as merely restatmg the pro­
hibitions of the Fifteenth Amendment. The Court held that a chal­
lenged practice would not be unlawful under that section unless m~ti­
vated by discriminatory intent. The Committee does not agree w!th 
this construction of Section 2 and believes that the intent of the sectwn 
should be clarified. 

Section 2 of H.R. 3112 will amend Section 2 of the Act to make clear 
that proof of discriminatory purpose or intent is not required in cases 
brought under that provision. Many of these discriminatory laws have 
been m effect since the turn of the century.95 Efforts to find a "smoking 
gun" 96 to establish racial discriminatory purpose or intent are not 
only futile,97 but irrelevant to the consideration whetJher discrimina­
tory has resulted from such election practices. 

The purpose of the amendment to section 2 is to restate Congress' 
earlier intent that violations of the Voting Rights Act, including Sec­
tion 2, could be established by showing the discriminatory effect 98 of 
the challenged practice. In the 1965 Hearings, Attorney General 
Katzenbach testified that the section would reach any kind of prac­
tice ... if its purpose or effect was to deny or abridge the right to 
vote on account of race or color." 99 [emphasis added] As the Depart­
ment of Justice concluded in its amicus brief in Lodge v. Buxton,100 

applying a "purpose" standard under Section 2 while applying a "pur­
pose or effect" standard under the other sections of the Act would frus­
trate the basic policies of the Act. 

By amending Sootion 2 of the Act Congress intends to restore the 
pre-Bolden understanding of the proper legal standard which focuses 
on the result and oon5e<1uences of an allegedly discriminatory voting 

93 446 u.s. 55 (19il0) 
"'ComjJare McMillan v. Escambia County, Florida, 638 F .2d 1239 (5th Cir. 1981), with 

Lodge v. Buxton, 639 1<'.2d 1358 (5th Cir. 1981), Ct·oss v. Baxter; 639 F.2d 1383 (5th Cir. 
1981), and Thomasville Branch NAACP v. Thomas County, Georgia, 639 F.2d 1384 (5th 
Cir. l!lill ). 

95 Hearings, June 24, 1981, C. Vann Woodward , J. Morgan Kousser. 
96 Id ., J. Morgan Kousser, James Blacksher; Lodge v. Buxton, 639 F .2d 1358 (5th Cir. 

1981) . 
97 The Supreme Court and commentators have noted that legislative motivation is often 

impossible to ascertain, reliance upon this standard is futil e, and its application may 
lead to undesirable and unwanted results. See Palmer v. 7'hompson, 403 U.S. 217, 225 
(1971) ("it is difficult or impossible for any court to determine the 'sole' or 'dominant' 
motiva tion behind the choices of a group of legislators. Furthermore, there is an element 
of futility in a judicial attempt to invalidate a law because of the bad motives of its 
supporters. If the law is struck down for this reason .. . it would pre•umably be vfllid 
a~ ~oon M the legi•lature or relevant ~overnlng body repassed it for different reasons."); 
Un.ted .':!ta.tes v. O'Brien, 391 U.S. 367, 383-84 (1968) ("Inquiries into congressional 
motives or purposes are a hazardous matter .. . What motivates one legislator to make 
a speech about r1 statute is not necessarily what motivates scores of others to enact It, 
and the stakes are sufficiently high for us to eschew guesswork." ) ; Note, Discriminator.! 
Purpose und Disproportionate Impact: An Assessment After Feeney, 79 Col. L. Rev. 1376, 
n: 24 (1!l79) ; P. Brest, Palmet· Thompson: An Atmroach to the Problem of Unconstitu­
hona.l Leg-i'8lative Motive, 1971 Sup. Ct. Rev. 95; .J. H. Elv, Legislative and Administrative 
Motivation in Constitutional Luw, 79 Yale L.J. 1205, 1212-17 (1970) . 

"'See Committee Ilearings, 1981, Memorandum From : Hlro•hi Motomura, To: Sally 
Determan. 

00 Hearing on S. 1564 before the Committee on the Judiciary, United Stat€s Senate, 89th 
Con~ .. 1st Sess .. pp. 191-92 (1965) . 

100 639 F.2d, 1358 (5th Cir. 1981). 



or electoral practice rather than the intent or motivation behind it.m 
Section 2 prohibits any votirng qualification, prerequisite, standard, 
practice or procedure which is diseriminatl)ry against racial and lan­
guage minority group persons or which has been used 'inn discrimina­
tory manner to deny such persons an equal opportunity to participate 
in the electoral proooss. This is intended to include not only voter reg­
istration requirements and procedures, but also methods of election 
and electoral structures, practices and procedures which discrimi­
nate.102 Discriminatory election structures can minimize and cancel 
out minority voting strength ,as much as prohibiting minorities from 
registering and votmg. Numerous empirical studies based on data col­
lected from many commun.ities have :fiound a strong link between at­
large elections and lack of minority representation. "' 03 Not all at-large 
election systems would be prohihited under this amendment, however, 
but only those which are imposed or applied in a manner which accom­
plishes a discriminatory result. 

The proposed amendment does not create a right of proportional 
representation. Thus, the fact that members of a racial or language 
minority group have not been elected in numbers equal to the group's 
proportion of the population does not, in itself, constitute a violation 
of the section although such proof, along with other objective factors, 
would be highly relevant. Neither does it create a right to proportional 
representation as a remedy. 

This is not a new standard. In determining the relevancy of the evi­
dence the court should look to the conrtext of the challenged standard, 
practice or procedure. The proposed amendment avoids highly subjec­
tive factors such responsiveness of elected officials to the minority 
community. Use of this criterion creates inconsistencies among court 
decisions on the same or similar facts and confusion about the law 
among government officials and voters. An aggregate of objective £ac­
tors should be considered such as a history of discrimination affecting 
the right rto vote, racially polarity voting which impedes the election 
opportunities of minority group members, discriminatory elements of 
the electoral system such as at-large elections, a majority vote require­
ment, a prohibition on single-shot voting, and numbered posts which 
enhance the opp01.1tunity for discrimination, a:nd discriminatory slat­
ing or the failure of minorities to "vin party nomination.104 All of 
these factors need not be proved tO ~sta.iblish a Section 2 violation. 

The amended section would continue to apply to different types 
of election problems. It would be illegal for an at-large election 
scheme for a particular state or local body to permit a bloc voting 
majority over a substantial period of time consistently to defeat 
minority candidates or candidates identified with the interests of a 
racial or language minority. A districting plan which suffers from 

101 The alternative standard of proving that a Yoting practice or procedure is unlawful 
if a <Jiscriminatory purpose was a moth·atinl' factor would st!JJ be available to plaintlll's 
in such caseK As the Supreme Court held in Villa.ge of Arlington HeirJhfs Y. Jfetropolitan 
Housing Dev. Corp., 429 TT. S. 252 ·(1977). plaintiffs would not be required to nrove that a 
discrimination purpose was the sole, dominant, or even the primary purpose for the 
challenged practice or procedure, but only that it has been a motivating factor in the 
decision. 

102 See Allen v. State Boarrl of Elections, 391! U.R. 544. 569 ( 1969) . 10• See dis·cussion in previous section Pntitled Discriminatory Methods of Election. 
1" These objective standards rely on White v. Regester, 412 U .S. 755 (1973) but is not 

controiJing since it established a constitutional violation. 



31 

these defects or in other ways denies equal access to the political 
process would also be illegal. . 

The amendments are not limited to districting or at-large voting. 
They would also prohibit other practices which would result in un­
equal access to the political process.105 

Section 2, as amended, is an exercise of the broad remedial power 
of Congress to enforce the rights conferred by the Fourteenth and 
Fifteenth Amendments. In South Carolina v. Katzenbach, 383, U.S. 
301, 325~26 (1966), the Supreme Court held that under these pro­
visions "Congress has full remedial powers to effectuate the con­
stitutional prohibition against racial discrimination in voting." Pur­
SC1ant to its authority to enforce the Fourteenth and Fifteenth Amend­
ments, Congress has the power to enact legislation which goes beyond 
the specific prohibitions of the Fourteenth and Fifteenth Amend­
ments themselves so long as the legislation is appropriate to fulfill 
the purposes of those constitutional provisions. Fullilove v. Klutz­
nick, - U .S. -- (1980) ; City of Rome v. United States, 446 U.S. 
156, 173- 78 (1980); South Carolina v. Katzenbach, surra. This in­
cludes the power to prohibit voting and elector!:!-1 practices and pro­
cedures which have racially discriminatory effect. City of Rome v. 
United States,' supraj Fullilove v. Klutznick, suP'ra. 

The need for this legislation has been amply demonstrated. This 
legislation is designed to secure the right to vote of minority citizens­
without discrimination, and to eliminate "the risk of purposeful dis­
crimination." City of Rome v. United States, 446 U.S. 156, 177 (1980). 
Discriminatory purpose is frequently masked and concealed, and 
officials have become more subtle and more careful in hiding their 
motivations when they are racirully based.106 Therefore, prohibiting 
voting and electoral practices which have discriminatory result is an 
appropriate and reasonwble method of attacking purposeful discrim­
ination, regardless of whether the practices prohibited are discrimina­
tory only in result. Cf. City of Rome v. United States , supra, !lit 
176-78; Oregon v. Mitchell, 400 U.S. 112, 132-33 (opinion of Black, 
J .. ); 'td. at 144-47 (opinion of Douglas, J .); id. 'at 216-17 (opinion 
of Harlan J .); id. a.t 231-36 (opinion of ·Brennan, White, and 
Marshall, ,J J.) ; id. at 282-84 (opinion of Stewart, J., joined by 
Burger, C.J., and B lackman, J.). Voting practices which have a 
discriminatory result also frequently perpetuate the effects of past 
purposeful discrimination, and continue the denial to minorities of 
equal access to the political processes which was commenced in an 
era in which minorities were purposefully excluded from opportuni­
ties to register and vote.107 These Section 2 Amendments also provide 
an appropriate and reasona;ble remedy for overcoming the effects of 
this past purposeful discrimination against minorities. Cf. City of 
Rome~ snpraJ' Oregon v . • 1/itchell, MJpra. 

105 For example, a violation would be proved by showing that election officials made 
absentee ballots available to white citizens without a corresponding opportunity being 
given to minority citizens similarly situated. As another example. purging of voter reg­
istration rolls would violat e ·Section 2 if plaintiffs Rhow a resul t which demonstrably 
rlisadvantages minority voters. Only purges having a dis<>rimlnatory result are nrohibited. 
The majority vote requirement would a lso be prohibited under the standards -applicable 
to other discriminatory vote dilutions. 

100 •See, e.g., McMillan v. Escambia County, Florida, 638 F.2d 12!'l!l. 1246 n.15 (5th 
Cir. 1981) ; Rob;.nson v. 12 Loft.• Realty, Inc. , 610 F . 2d 10:12, 1043 (2d Cir. 1978). 

1111 See, e.g., Kirksey v. Board oj Supervisors •o·J Hinds County, Mississippi, 554 F.2d 
139 (5th Clr. 1977) (en bane), cert. denied, 434 U.S. 968 (1977) . 



32 

It is intended that citizens have a private cause of action to enforce 
their rights under Section 2. This is not intended to be an exclusive 
remedy for voting rights violations, since such violations mazy- also 
be challenged by citizens under 42 U.S.C. §§ 1971, 1983 and other 
voting rights statutes. I£ they prevail they are entitled to attorneys' 
fees under 42 U.S.C. §§ 1973Z (e) and 1988. 

AMENDMENTS TO SECTION 4 (a) OF THE ACT 

Over the past century, The Congress repeatedly has enacted leg­
islation in an attempt to secure the guarantees of the Fifteenth 
amendment. The Enforcement Acts authorized the executive branch 
to enfranchise newly emancipated black; the results were dramatic. 
Under the Hayes-Tilden Compromise the Fedel'lal government ac­
quieseed to pressures of states' promises to diligently enforce the 
Civil War Amendments. Upon repeal of the Enforcement Acts dis­
franchisement of blacks was swift and complete, and until the Voting 
Rights Act of 1965, enforcement of the fifteenth amendment was left 
to the judicial branch. 

The legislative history for the 1965 Act makes clear the inability 
of one branch of government to effectively enforce that right, despite 
congressional acts streamlining the judicial process for voting rights 
litigation.108 · 

Pursuant to Section 2 of the Fifteenth Amendment Congress passed 
the Voting Rights Act of 1965. The Act gave the executive branch 
a greater role in enforcing the right to vote and strengthened judicial 
remedies in voting rights litigation. 

Disturbed at the lack of progress in minority participation within 
the political process in the covered jurisdictions, Congress in 1975 be­
gan to explore alternative remedies. Proponents of these different 
remedies argued that the Voting Rights Act, as written, provided no 
incentive for the covered jurisdictions to do other than retain existing 
voting procedures and methods of election. The record showed that 
frequently the changes which did occur continued the effects of past 
discriminatory voting practices. After exploring these proposals, Con­
gress chose not to adopt changes in the Act's remedies at that time. 

After listening once again to the litany of discriminatory practices 
and procedures which continue to dominate these covered jurisdictions, 
the Committee determined that some modification of the Act was 
necessary to end the apparent inertia which exists in these jurisdic­
tions. 

The Committee believes these proposed changs to the bailout provi­
sion, set forth in H.R. 3112, as amended, will provide the necessary 
incentives to the covered jurisdictions to comply with laws protecting 
the voting rights of minorities, and to make changes in their existing 
voting practices and methods of election so that by eliminating all dis­
criminatory practices in the elections process increased minority par­
ticipation will fina.Uy be realized. This is a reasonable bailout which 
will permit jurisdictions with a genuine record of nondiscrimination 
in voting to achieve exemption from the requirements of Section 5. 

A major change in current ·law is that counties within fully covered 
states will be allowed to file for bailout independently from the State. 

'"" 16 Stat. 140. 



The amendment does retain the concept tha,t the greater governmental 
entity is responsible for the actions of the units of government within 
its territory, so that the State is barred from bailout unless all of its 
counties/parishes can also meet the bailout standards; likewise, any 
county .bailout would be ;barred unless units within its territory could 
meet the standard. 

Because of the continuing record of voting rights violations which 
has been presented to the Congress in 1970, 1975 and at this time, and 
further documented in numerous studies and reports, the jurisdiction 
is required to present a compelling record that it has met the amended 
bailout standards. 

The amended bailout provisions become effective on August 6, 1982. 
From August 6, 1982 to August 5, 1984, the jurisdictions will be re­
quired to comply with the current bailout provision. This 2 year delay 
will allow the Department of Justice to contii:me to effectively enforce 
Section 5 and also make necessary preparations and decisions about re­
sources to respond to these bailout suits~ 

ALTERNATIVE PROPOSALS 

In addition to H.R. 3112, as reported to the House, other proposals 
to amend the Voting Rights Act of 1965 ·are addressed in the Com­
mittee record. Some of these proposals were contained in legislation 
before the Subcommittee on Civil and Constitutional Rights. 
Judicially Ordered Preclearance 

Under,current law, once a jurisdiction is brought under the coverage 
of the special provisions of the Act (according to the 1965, 1970, ·or 
1975 triggers) the jurisdiction must automatically submit or preclear 
all of its proposed electoral changes, either to the Attorney General or 
to the District Court for the District of Columbia; most changes are 
precleared with the Justice Department. This process is commonly 
referred to as the automatic, administrative preclearance procedure, 
or more simply, preclearance. In addition, current law provides that 
administrative preclarance may be required for a period of time, as 
part of a judicially imposed remedy, in areas not automatically sub­
ject to the special provisions of the Act. 

A proposal to replace existing procedure with a judicially imposed 
preclearance process was discussed in the hearings.109 Under this pro­
posal, administrative preclarance would be imposed by a court any­
where in the country, if it made a judicial finding that a pattern and 
ptactice of voting rights abuses existed in a specific jurisdiction. 

The hearingrecord demonstrates most emphatically that the effect 
of this approach would be to signify a return to the pre-1965litigative 
approach, which the legislative history of the 1965 Act showed to be 
most ineffective in protecting the voting rights of minorities.110 This 
proposal would mean that for each of the currently covered jurisdic­
tions, which number over 900, a lawsuit would have to be initiated 
to require the jurisdiction to submit. Given the overwhelming evidence 
of a continuing pattern and practice of voting discrimination against 

1"" On May 6, H.R. 3473 was lntrodu~ed by Representative Hyde . to further clarify 
the changPs nronosed In his earUer bill. H .R. 3473, thus, superceded H.R. 3198. 

uo See 1965 House Hearings. 

H.Rept. 97- 227 --- 5 



34 

racial and language minorities in the covered jurisdictions, the pros­
pect of returning to a lengthy, and costly litigation process is contrary 
to the purp?se of the Act; . . . 

Recogmtmn of these two factors led to the deciSion to not pursue this 
proposal. 
Nationwide Extension/ Expansion of the Act 

While no legislation proposing nationwide extension of the Act was 
before the Committee, the issue did arise during the deliberations on 
the extension. of the Voting Rights Act. The suggestion has been raised 
in various forums that the Act should be extended and applied nation­
wide, rather than retain the present focus on voting discrimination 
problems in certain regions of the country. 

The following points were made in response to this suggestion: 
( 1) the Voting Rights Act has numerous provisions which proscribe 
discriminatory practices and procedures or provide remedies for such 
practices and procedures, wherever they occ1.1r.u~ Most of these major 
provisions are permanent provisions which apply nationwide; (2) the 
triggering mechanism of the Act was devised to address a problem of 
substantial underrepresentation and under-participation of minority 
citizens wherever -that problem existed and is not per se . regional. 
The Section 5 preclearance procedure affects all or part of 22 states in 
the country. In fact, more people are covered under Section 5 (over 4.8 
million) in the three covered New York counties than are covered in 
the State of Alrubama ( 3.9 million) , Mississippi ( 2.5 million) or South 
Carolina (3.1 million). By comparison, 5.4 million are covered in 
Georgia and 5.3 million in Virginia; 112 (3) without a precise showing 
of need,113 the expansion of Section 5 coverage to include all counties, 
states, and local jurisdictions in the country seems arbitrary and waste­
ful, especially at a time when there is much concern abOut excessive 
governmental intrusion into state and local matters; (4) in the absence 
of a detailed showing of need, serious constitutional questions are 
raised about applying this "uncommon exercise of congressional power" 
to the country as a whole.114 The U.S. Supreme Court in South Carolina 
v. Katzenbach, supra, and City of Rome v. United States, supra, upheld 
the constitutionality of Section 5 precisely because it was tailored to 
address a specific problem about which Congress had amassed detailed 
evidence in its hearing record; and ( 5) nationwide preclearance would 
raise serious administrative burdens for the Department of Justice, 
especially since it must process all submission within 60-120 days. 
Lilmiting Preclearance 

It has also been suggested that the types of electoral changes sub­
ject to preclearance review should be limited. For example, only those 
changes which have produced the most objections from the Justice 

111 See Sections 2. 3, 10, 11. 12. and 201 of the Act ( 42 U.S.C. 1973). Sect!C>n 4 triggers 
the jurisdictions which are required to submit changes under the Section 5 preclearance 
provision; Sections 6 to 9 and 13 relate to the appointment and duties of federal exam­
iners and observers. Section 14 cnntains definitions of relevant terms used In the Act: 
Sections 15-19 and 202 are miscellaneous provisions; the balance of the Act also relates 
to miscellaneous issues. 

112 Testimony of New York State AttC>rney General Robert Abrams. Supra. 
ua While extension of Section 5 nationwide was suggested In the hearings, no specific 

evidence of voting discrimination In areas outside those presently covered was presented. 
See Hearings. May 19. 1981. Robert Brinson. City Attorney. Rome, Ga. 

m Hearings, July __ 13, 1981, testimony of Drew Days, Professor, Yale Law School and 
former U.S. Assistant Attorney General, Civil Rights Division, Department of Justice. 



35 

Department. While some changes may adversely affect a greater num­
ber of people, others may have precisely the type of discriminatory 
impact which Congress sought to prevent, even though the numbers 
involved are smaller.115 One such example is the change in location of 
polling places. As noted earlier, the placement of polling places is an 
important factor in determining whether minorities exercise their 
right to vote. Numerous instances of polling places located in or moved 
to places which are inoonvenient, inaccessible, or intimidating to mi­
norities have been documented.U6 The lesson which both Congress and 
the courts learned from the pre-1965litigation experience is that juris­
dictions did not limit their efforts to discriminate to one type of voting 
practice. "The discriminatory potential in seemingly innocent or 
insignificant changes can only be determined after the specific facts 
of the change are analyzed in context. The current formula allows 
for such factual analysis." 117 

Repealing Language Assistance Provisions 
At the time that the Subcommittee on Civil and Constitutional 

Rights initiated its review of the Voting Rights Act it had before it 
three identical bills 118 which proposed to delete or repeal the general 
language assistance provisions, 119 as well as those provisions of the Act 
which in 1975 brought jurisdictions such as Texas under Section 5 
coverage.120 One effect of this latter amendment would be that in Texas 
neither blacks or Hispanics would be protected by Section 5. These 
bills also proposed striking certain language from the Act, which 
would have resulted in uncertainty about the standing of Hispanics 
and other language minority citizens to utilize the various remedies 
provided in the Act, including the appointment of federal examiners 
and observers, the Section 2 prohibits against discriminatory voting 
practices and standards, and the Section 3 remedies provided to 
eliminate such discriminatory practices. 

The evidence in the Committee record strongly contradicts claims 
raised by supporters of the proposals to repeal Section 203. Instead 
it strongly supports the action of the Committee to report all of the 
provisions of H .R. 3112 to the House.121 No evidence or testimony was 
introduced to justify eliminating any covered jurisdiction from Sec­
tion 5 coverage. It should be noted that support for the passage of all 
of the provisions of H.R. 3112, including those to extend Section 203, 
and Section 5 coverage for 1975 jurisdictions, was received from juris­
dictions subject to its requirements.122 

1,. See testimony of Drew Days, •Supra; U.S. Commission on Civil Rights Report, supra 
(1981) . 

-n• See, for example, Civil Rights Commission Report ( 1981) Supra. ; testimony of Drew 
Days. Supra. 

l17 Drey Days, Supr a. 
1l8H.R. 1731 (intr oduced by Representative McClory on February 5. 1981) , H.R. 1407 

(introduced by Rep resentative McCloskey on January 28, 1981), and H . .R. 2942 (introduced 
by Representative Thomas on March 31. 1981). 

no Secti-on 203 {)f the Act [42 U.S.C. 1973aa- 7J . 
""'Sections 4(f) (4) [42 U.S.C. 1983aJ . 
121 See previous discussion of these issues in the Language Assistance portion of this 

Report. 
122 See testimony of: Barbar a Jordan, former Member of Congress from Texas, supra; 

Robert Abrams, State Attorney General of New York, supra; Roberto Mondragon, Lieu· 
tenant Governor of New Mexico, supra; Douglas Caddy, former Director, Elections Divi­
sion, Office of the Texas Secretary of State (June !'i Transcript) ; and Dr. George Sheldan, 
Florida State Representative ·(June 23 Transcript) . Also written communications were 
.received by the Committee from: the legislatur e of the State of Alasl<a, from the Governor 
of Arizona , from the San Francisco Board of Supervisors. 



Ewol!u8ive Jurisdiotion of the U.S. District Court for the Distriot of 
C olrumbia, . · 

Another issue discussed during the Subcommittee's deliberations was 
the suggestion that the D.C. District Court's exclusive jurisdiction over 
Section 5 preclearance suits and bailouts suits be repealed. The record 
shows that the decision Congress made in 1965 that the federal interest 
in securing Fifteenth amendment protections is served by granting 
exclusive jurisdiction over certain aspects of voting rights litigation 
to the D.C. District Court, is still valid.123 

In 19·66, the U.S. Supreme Court, citing other federal statutes lim­
iting litigation of claims to courts in the District of Columbia, found 
that this limitation of jurisdiction was an appropriate exercise of the 
constitutional authority of Congress under Article III, § 1 of the 
United States Constitution South Carolina v. Katzenbaoh, 383 U.S. 
301, 331-32 (1966). The decision to grant exclusive jurisdiction was 
based upon a desire to assure uniform interpretation and enforcement 
of this most important Act. As the U.S. Supreme Court recently noted 
in its review of the Section 5 preclearance requirements, " ... cen­
tralized review enhances the likelihood that recurring problems will be 
resolved in a consistent and expeditious way." M oDaniel v. Sarnohez, 
-- U.S. -- (June 12, 1981). The Court further noted that the cen­
tralized review provided by the Department of Justice and the Federal 
District Court for the District of Columbia has played a major role 
in making Section 5 work efficiently and fairly. 

Since the evidence strongly supports maintaining this exclusive 
jurisdiction, the proposal for repeal was not pursued. 
Amending the Current Bailout Provision 

The final proposal considered dming the review of the Voting 
Rights Act was one to amend the current bailout provisions of the Act 
which provides covered jurisdictions with a mechanism through which 
they may terminate their Section 5 responsibilities. 

The current provision allows jurisdictions with a genuine history 
of nondiscrimination to bailout. Twenty-four jurisdictions have suc­
cessfully bailed out, all but one since 1975. Bailout suits are heard by 
a court of three judges in the District Court of the District of Colum­
bia. Once a jurisdiction bails out the court retains jurisdiction for a 
period of 5 years, during which time the court may, upon motion of the 
U.S. Attorney General, reopen the case. . 

On June 17, 1981, just prior to the Subcommittee's fina15 days of 
hearings, a new legislative proposal was introduced.124 This bill, unlike 
its two predecessors (H.R. 3198 and H .R. 3473) , retained the current 
automatic, administrative preclearance remedy on an indefinite basis, 
subject to a jurisdiction bailing out from under a coverage of Section 
5. The bill proposed changes to the criteria which the jurisdiction seek­
ing to bail out had to meet. Generally, the jurisdictions would have 
been required to have complied with the requirements of the law in the 
area of voting and not have received any substantial objection by the 
Department of Justice or the Federal District Court for the District 

12a See especially testimony of former U.S. Assistant Attorneys General for the Depart­
ment of Justice, Drew Days, supra, and Stanley Pottinger (June 17 Transcript). Both 
opposer! any change in the exclusive jurisdiction of the D.C. District Court. 

12• H.R. 3948 (introduced by Representative Henry Hyde) . 



37 

of Columbia, to a proposed chang~ during the ten-years precedingthe 
filing of the bailout suit. In addition, the jurisdiction would have had 
to engage in constructive efforts designed permanentlyto involve vot-
ers protected by the Act in the politica! process. . · 

When this proposal was introduced, reoognition was given to the 
fact that there are jurisdictions which deserve to remain covered under 
the Section 5 preclearance provision because there are "vestiges of dis­
crimination present in their electoral system and because no construc­
tive steps have been taken to alter that fact. " 1~5 The Committee 
hearing record clearly and overwhelmingly supports that assertion. 

During the hearings, concerns were raised about how the bailout 
criteria in H;R. 3£!48 would be interpreted. In. order to bail out under 
H.R. 3948, a jurisdiction would have to show that it made all submis­
sions to the Attorney General or the D.C. District Court during the 
previous ten years as required under Section 5, and that the Attorney 
General did not interpose a "substantial" objection during that time 
period. This language would not require jurisdictions to submit elec­
tion changes before implementing them. Moreover, it treated some 
Section 5 objections as insignificant without giving specific guidance 
as to how such a determination was to he made. These concerns were 
especially troubling in light of the fact that H .R. 3948 authorized bail­
out suits to be filed in any locrul federal district court. As indicated pre- ­
viously, exclusive review of voting changes by the Attorney General 
and the D.C. District Court was in large part credited for the effec­
tiveness of Section 5. The need for centralized review and uniform 
standards is even more compelling where political subdivisions within 
fully covered states can file for bailout. 

Under H.R. 3948, the jurisdiction was required to have engaged 
in constructive efforts to involve minority voters permanently in the 
electoral process. 

The Committee agreed the thrust of this proposed standard could 
he important m encouraging jurisdictions to finally take steps to erad­
icate the results of a history of voting discrimination. The problem 
with this important standard was its vagueness which could lead to 
inconsistent decisions on the same or similar facts presented to local 
:federal district courts. Of equal concern was the absence of an ob­
jective measurement of the success of these constructive efforts to in­
crease minority participation, i.e., did they increase minority voter 
registration and voting, and did they eliminate discriminatory bar­
riers to voting procedures and the elections process. 

The Committee agreed that a carefully drafted amendment to 
the bailout provision could indeed act as an incentive to jurisdictions 
to take steps to permanently involve minorities within their political 
process, especially when jurisdictions realized that by doing so they 
could be exempted from Section 5 requirements. The Committee took 
note of the various concerns raised. Equally as important to the 
Committee was the need for consistent and uniform application of 
any revised bailout standards-that is, maintaining exclusive juris­
diction over hai·lout suits in the District Court :for the District of Co­
lumbia. Thus, began the genesis of the Committee fl,mendment to 
H.R. 3112 which was reported by the committee to the House. 

""See Opening statement of Representative Hen·ry Hyde, Hearing, June 17, 1981. 



38 

OmnibusProposdl 
Immediately prior to full Committee consideration of H.R. 3112, 

a new omnibus, proposal amending the Voting Rights Act was in­
troduced.1116 

One provision of ·this legislation proposed amending the current 
formula for determining the application of the special provisions of 
the Act. Under this provision, application of the special provisions 
would be based on the entry by a three judge panel in any federal dis­
trict court of a final judgment that a pattern or practice of voting 
discrimination exists. . 

The concerns raised about this provision included: (1) the emphasis 
on reverting to the litigative process for "pattern or practice" of voting 
violations.127 This is especially troublesome because it once again places 
the burden on the aggrieved parties to show that the practices and 
procedures are not discriminatory. When Congress passed the Voting 
Rights Act in 1965, it recognized the inherent disadvantage which 
that burden placed on those who had experienced voting discrimina­
tion. Consequently under Section 5, Congress placed the burden of 
proof on the covered jurisdictions since they are the ones that propose, 
enact, and implement the voting laws. When the U.S. Supreme Court 
upheld the constitutionality of Section 5, it specifically found that 
this shift in the burden of proof was a rational approach to prohibit 
voting discrimination. 

A second major change reflected in this proposal is the establish­
. ment of a new "intent" test voting rights cases. The amendment to 
Section 2 of the Act would prohibit voting practices or procedures 
which have the purpose or the "reasonable forseeable effect" of deny­
ing or abridging the voting rights of minorities. 

The Committee believes that the more appropriate and more ef­
fective standard to use is that contained in Section 2 of H.R. 3112. 
That amendment proscribes practices or procedures which result in 
denial or abridgment of voting rights of minorities. This "result" 
or "effect" test is one which already has a judicial history upon which 
jurisdictions and aggrieved parties can depend. 

The final major provision of this proposal changed the trigger 
mechanism for providing minority language assistance. It would re­
quire bilingual voting materials and assistance when five per cent 
or more of the citizens of voting age in a State or political subdivi­
sion are members of a single language minority group and the rate 
of non-minority voter registration exceeds the rate of such 'language 
minority group by ten per cent or more. 

Problems raised by this proposal are: 1) that language assistance 
would be based on registration rates rather than on literacy rates 
which is a better indicator of the need for such assistance; 2) it does 
not use the level of voters activity as a trigger but instead relies only 
on registration levels; and 3) no public or private agency currently 
collects nationwide registration or statistics on a county by county 
subdivision basis. It is therefore currently impossible to use one of 
the proposed triggers. 

"" H.R. 4271 introduced on July 27, 1981 by Representative Caldwell Butler. 
""See earlier discussion about the ramifications of such a change. 



39 

For all of the reasons set forth earlier 128 the Committee recom­
mends retaining the current language assistance trigger. 

SECTION-BY-SECTION ANALYSIS 

Section 4(a) 
The effect of this ~.mendm~mt is to retain the current bail-out stand­

ard until August 5, 1984. 
Section 4 (b) 

The amendments made in H.R. 311::! to Section 4 (a), relating to the 
new standard for bailout, are effective on and after August 6, 1984. 

The Committee believes the two year waiting period is essential to 
allow the Justice Department sufficient time to prepare fer the ex­
pected increase in bailout litigation without undermining the Depart­
ment's capacity to enforce the Act. 
Section 4(b) (f2) 

This amendment provides that political subdivisions within fully 
covered states may initiate a declaratory judgment action seeking to 
bail out independently of the state. This expands current l<aw. 

·when · referring to a politi: al subdivision th~s amendment refers 
only to counties and parishes except in tho:::e rare instances in which 
the county does not conduct voted registration; only in such rare in­
sta.nces, such as independent cities iri Virginia, can a jurisdiction smal­
ler than a county or parish file for ba.ilout. 

It should be noted that for a state or political subdivision to qualify 
for bailout, all of the units of government within that state or political 
subdivision must meet the bailout criteria. 

Lastly, for purposes of bailout, politi,., al subdivisions are defined as 
of the date they were covered under Section 4 (b) of the Act. 
Section .Hb ) (4) 

This section provides that a declaratory judgment for bailout will 
be barred unless the jurisdiction carries the burden of proving that it 
and all units of government within its territory meet the bailout stand­
ards for the 1 0 years preceding the filing of the suit for declaratory 
judgment and during the time such suit is pending. 

"With respect to each of the bailout criteria, the Committee has con­
tinued existing law with respect to the burden of proof. This burden is 
reasonable because "the relevant facts" are "peculiarily within r the 
jurisdiction's] knowledge." South Carolina v. Katzenbach, 383 U.S. 
301, 332 (1966). 

A ten-year period of compliance is required to assure tha.t the. juris­
diction has e.st;ahlished a genuine record of nondiscrimination. Evi­
dence of continuing widesnrea.d. discrimination in the covered juris­
dictions has led the Committee to conclude that a ten-year period is 
reasonably necessary to assure against the risk of perpetuating "95 
years of pervasive voting discrimination" that preceded enactment of 
the Voting Rights Act. Oity of Rome v. United States, 446 U.S. 156, 
182 (1980). 

128 See Language Assistance discussion. 



40 

Section .q_(J>) (4) (A) 
A jurisdiction seeking to bail out must show that n() test or device 

has been used within its territory for the purpose or with the effect 
of denying or abridging trhe right to vote on account of race, color, or 
membership ina language minority group. 

This criterion for bailout has been selected because the use of a "test 
or device"cisthe very basis upon which initial coverage of section 5 was 
determined. In addition, the Committee believes that no jurisdiction 
should be able to bail out unless it has complied fully with the law 
from which it is seeking to be exempted. 

Section 4(b) (4) (B) 
A bailout judgment will await a final judgment in any pending 

voting discrimination suit. 
The interests of judicial economy dictate that pending snits alleging 

denials of voting rights be adjudicated before a court determines the 
merits of a bail"out suit. Provisions in current law deter the filing 
of non-meritorious suits, which, in any event, will be disposed of 
quickly. [See Rules 11, 56(g) Fed. R. Civ.P.; Rule 38 Fed. R. App. P.; 
42 U.S.C. § 19731 (e). J Therefore, the risk of allowing a jurisdiction 
to bail out when it may be found soon thereafter to have discriminated 
in voting substantially outweighs the mere delay in obtaining a bailout 
judgment. 

For purposes :of this section final judgment is defined as a final 
decision of any court. Not included is an interlocutory decision or 
order. Thus, a final decision of a district court is a "final judgment" 
even though an appeal might be pending. 

Consent decrees under this section are treated the same as final 
judgments as a bar to bailout. Traditionally such decrees are treated 
as the functional equivalent of final iudgments. See, e.g., United States 
v. Oolumbus Separate School Di.~tnct, 558 F. 2d 228, 230 n.8 (5th Cir. 
1977), cert. denied, 434 U.S. 1013 (1978). The Committee does not 
believe that a departure from this practice is justified. 

S ection4(b) (4) (0) 
This section provides that to bail out there must be a showing that 

no federal examiner l· as served in the State or political subdivision 
seeking to bail out. 

The annointment of examiners by the Attorney General is controlled 
bv snecific standards set forth in t.he Act. The Committee believes 
tl' at ·the Sf'ndin.g- of examiners provides strong evidence of cont.inning 
votinrr rights violations. The hearing record shows that jurisdictions 
to which examiners have been sent are those where there has been 
continuing vot.ing riP'hts abuses. 

The Committee believes it unwise to subiect the bail ont suit to 
1·elit.iO'ation of whether each assignment of federal examiners was 
instified. In othf'r areas unrler the Voting Rights AC't. Conr>TP.RS has 
T"1fl.nP certain decisions conclusive. E.g., Briscoe v. Bell, 432 U.S. 404 
( 1'977). 
Ser:tion .l,.(b) (4) (D) 

'T']>is snbsP~tinn reouires that to hail ont .. a State or political sub­
rlivision. apd all P'overnmental units within its territory must havl' 
f'omnlied with Section 5 of the Act. 



41 

This section is intended to require that a jurisdiction seeking . to 
bail out prove that the governmental units within its territory have 
complied with section 5 of the Voting Rights Act. Because jurisdic­
tions may bail out together, the Committee believes that . they should 
all satisfy the bailout requirements. 

The Committee bill represents a significant expansion of the. juris­
dictions eligible to bail out without creating. the, prospect of, unman­
ageable litigation in the court. The Committee believes that requiring 
each governmental unit within the territory of a jurisdiction seeking 
to bail out to comply with the requirement· of section 5 is consistent 
with City of Rome v. U.S. 446 U.S. 156 (1980). 

Compliance means that the State or political subdivision, and ·all 
governmental units within tbe jurisdiction have submitted all voting 
law changes in a timelv manner, have not implemented any election 
law changes prior to submitting it for preClearance, and have repealed 
all ehanges to which the U.S. Attorney General has objected 'or for 
which the District Court for the District of Columbia has denied a 
rleclaratory judgment. 

The Committee has heard testimony indicating that numerous juris­
dictions have been lax with respect to timely submissions, and that 
many submissions are either sent in years late or never come in at 
all. In these cases the rights of voters under the Voting Rights Act 
are violated not only when the voting charige is first enforced but on 
each occasion thereafter when it is -enforced without having been 
submitted and precleared. This requirement for timely submissions 
applies even if the voting change, when submitted, was not found 
objectionable. The Committee decision to condition bailout on a record 
of timely submissions by requiring a ten-year period from ·the last 
date of any such violation provides an incentive for jurisdictions to 
take seriously the requirement of not enforcing any un-precleared 
changes. It thus assures that the ,Tustice· Department's ability to en­
force the Act will not be undermined. 

Jurisdictions must repeal all legislation ~nd other voting changes 
that were obiected to before they are permitted to bail out so that they 
will not be able to enforce any such legislation once they are exempted 
from the Act's coverage. 

The term "all governmental units" as nsed in this section refers 
to all jurisdictions within a Rtate or political subdivision which are 
required to m~ke Se,..t.ion 5 submissions under U.S. v. Bonrd of Com­
missioners of Sheffield County, Alabama, 435 U.S. 110 (1978). . 

The term "preclearance:' as used herein refers to the -process of 
submitting for review to the U.S. Attorney General or to the District 
Court for the District of Columbia all proposed electoral changes 
prior to their implementation. 

The term "successfullv objected" is used in this subsection to mean 
that if a iurisdiction which receives an objection to a proposed change 
by the U.S. Attorney General tr>kes that same pro{>osed change to 
the U.S. District Court for the District of Columbia and receives a 
rl.eclaratory jndg;ment preclerrin~ thnt chanrre. then such objectio:n 
is not successful. SPe Beer v. U.S .. 49-5 U.S. 130 (1976). However. if 
after an obiection is interposed bv the Attornev Genern1 the juris­
diction seeks a declaratory judgment, but submits a revised plan to 



42 

the \court, then the objection stands and is a "successful" one, what­
ever the court's disposition of the revised plan. 

Lastly, it is the Committee's intent that compliance with Section 5 
means that even if a Section 5 objection is ultimately withdrawn or 
the judgment of the District Court for the District of Columbia deny­
ing a declaratory judgment is vacated on appeal, the jurisdiction is 
obligated not to enforce the proposed change during the period in 
which the objection or declaratory judgment denial was in effect. 
Seotion4(b) (4) (E) 

Bailout is barred if, pursuant to Section 5 of the Act, the Attorney 
General has interposed an objection to a submission under Section 5 
or a declaratory judgment seeking approval of a change has been 
denied. 

A declaratory judgment for bailout may not be issued until submis­
sions pending pursuant to Section 5 have been resolved. 

The Committee believes that the absence of objections which have 
not been set aside by the D.C. District Court or withdrawn by the 
Attorney General :ls an essential criterion for bailout to avoid 
"creat[ing] the risk of purposeful discrimination" by jurisdiction with 
a "demonstrable .history of racial discrimination in votirig." Oity of 
Rome v. United States, 446 U.S.156, 177 (1980). 
Seotion4(b) (4) (F) 

It is the purpose of this entire section to require covered jurisdic­
tions as a prerequisite to bailing out to eliminate voting practices and 
methods of elections wihch discriminate against minority voters and 
to open up the electoral process to greater minority participation. 
Since the bailout provisions allow jurisdictions to exempt themselves 
completely from the coverage of the special provisions of the Act, 
including the preclearance requirement, the jurisdiction seeking bail­
out must do more than simply maintain the status quo, if the status 
quo has the purpose or effect of discriminating against minority voters 
or if the status quo continues the effects of past discrimination against 

·minority voters. 
The Committee believes that a jurisdiction seeking to bail out should 

meet certain ·positive and result-oriented requirements, in order to 
"counter the perpetuation of 9.5 years of pervasive voting discrimina­
tion." Oity of Rome v. United States, 446 U.S. 156, 182 (1980). The 
burden of such a showing is· reasonable because "the relevant facts 
are peculiary within the knowledge of the states and political sub­
divisions themselves." South Oarolin'1 v. Katzenbaoh, 383 US. 301, 
332 (1966). 
Seotioniy(b) (1) (F) (i) 

A jurisdiction must demonstrate to the court that its voting pro­
cedures and methods of elrction are nondiscriminatory. 

The basis for this standard is the extensive committee recorn which 
slJ.ows clearlv that discriminatory voting procedures and methods of 
elrction continue to prevail throughout the covered iurisdictions. This 
evidence indicates that the types of voting procedures ann methods 
of election which have contim,ously bern used in a discriminatory 
mall.ner include: unduly restrictive voter registration procedurPs~ 
mnlti-member legislative districts, at-large connty-wide ann citywide 



43 

voting which denies a substantial minority population an equal op­
portunity to participate, majority vote-runotf requirements, prohibi­
tions on single-shot voting, and others. Although they are not nec­
essarily unconstitutional under existing standards, these voting pro­
cedures and methods of election cited by the Supreme Court and 
lower Federal courts as having a "built-in bias" against minorities do 
not permit minorities "to enter into the political process in a reliable 
and meaningful manner." White v. Regester, 412 U.S. 7M, 766-67 
(1973); Zimmer v. McKeithen, 485 F. 2d 1297 (5th Cir. 1973) (en 
bane). 

For example, while in some areas with few minority citizens, at-large \ I~ 
election may be a reform measure, the Committee heard extensive evi- 'F 
dence about discriminatory atclarge election systems in the covered 
jurisdiction. 

The Committee's greatest concern is that a jurisdiction seeking bail­
out be required to show that it, and governmental units within its 
territory, have eliminated voting procedures and methods of election 
which discriminate against or submerge minority voters. The require­
ment to eliminate means the elimination of all such structural and 
procedural barriers. 

This requirement cannot be met, for example, simply by claims that 
a jurisdiction has no structural barriers, but rather calls for empirical 
evidence that its methods of election and voting procedures have 
neither the purpose nor the effect of discriminating. 

Voting procedures encompass requirements for ,-oter registration 
and the registration process, and methods of election include the elec­
toral process and the means by which public officials are elected. 

Section 4(b) (4) (F) (ii) 
These requirements are not meant to imply that the proscribed con­

duct has occurred in all jurisdictions. The Committee record indicates 
that in many areas this requirement is necessary to insure that minority 
citizens are not inhibited or discouraged from participating in the 
political process. 

Intimidation and harassment o:£ voters or others seeking to exercise 
rights protected by the Voting Rights Act are especially troubling 
because of the long-term impact it can have on such persons and their 
communities. 

It is the Committee's intent that where such conduct has occurred, 
the jurisdiction seeking to bailout takes steps to assure that such con­
rluct, whether by government officials or others, w.ill not be repea~d, 
including giving notice within its territory that such conduct will 
not be tolerated. 
Section 4(b) (1) (F) (iii) 

This subsection places an affirmative duty on covered jurisdictions 
to expand the opportunities :for minority citizens to register and 
vote. 

The Committee hcnxing record is replete witl1 examples of restric­
tive re.gistra:t.ion practices Rnd nrof',cdures, snch as re-stricted hours 
and locations for registration, dual registration practices, and dis­
criminatory reregistration reouirements, which continue to exist 

· throughout the covered jurisdictions. A jurisdiction could meet the 
requirements of the subsection by offe.ring cxpandrcl opport1mitics for 



44 

registration through the appointment of deputy registrars who 3:re 
accessible to min01·ity citizens, offering evening and weekend regis­
tration hours, or providing postcard registration. Othe.r examples of 
constructive efforts include appointment ·of minority citizens as dep­
uty registrars, pollworkers, and to other positions which i~d.icate ~o 
minority group members that they are encouraged to participate m 
the political'process. 
Section 4 (b) (2) 

This section requires the plaintiff in the bailout suit to present ob­
jective evidence of the level of minority participation in the political 
process. 

Coverage under section 4 was triggered initially by showings of low 
participation and it would be anomalous to terrn.tnate coverage where 
continued depressed levels of minority participation, show that voting 
discrimination is still a problem. Evidence of participatio:t levels can 
include election results as well, because such T-ccmlts are often sound 
indicators of whether minoritieG have a fair opportunity in the elec­
toral process. The Committee has hard extensive evidence about juris­
dictions with sip;nificant minority populations that have not elected 
any minority officials, and this fact., while not conclusive, would be 
relevant. A nurnber of the covered juri<:dictions already maintain 
records from which the evidence reA]uireil by this section can be de­
rived. The jurisdictions are not all bound to present the evidence in 
precisely the same form, but it is intended that thE: evidence be objec­
tive and reliable rather than subjective or :mecdotal. 

8ection 4(b) (3) 
The issuance of a declaratory judgment for bailout is prohibited if 

there i::1 proof that the inrisdiction or any governmental unit within 
its territory has engaged in voting diserimination. unless the jurisdic­
tion can show such violations were trivial, promp1ly corrected and not 
reneated. 

It is intended that this provision reach voting discrimination for 
which there may be no administrative or judicial record such as could 
be shown to meet the requirements in the preceding paragraphs 4(b) 
(1) (A) through (E). Such discrimination is nonetheless violative of 
constitutional and statutory provisions regarding the right to vote. 

Any violation of constitutional or statutory voting laws protecting 
against voting discrimination should be presumed to be not trivial, and 
the jurisdiction must show that any such violations were trivial, 
promptly corrected, and were not repeated. For example, if a qualified 
minority voter-has been turned away from the polling place by accident 
or mistake in the jurisdiction's poll books, and the mistake was imme­
diately corrected and not repeated, this would not bar bailout. How­
ever, if a voter or poll watcher has been attacked or beaten up at the 
polling place by a public official or with the participation or acquies­
cence of election officials, this would not be considered trivial even if 
corrected and not repeated. 

Section 4(b) (4) 
The State or POlitical subdivision seeking bailout must give reason­

ruble public notice of the proposed settlement of the bailout suit to 
enable interested persons to intervene. 



45 

An aggrieved party is defined broadly to include any person who 
would have standing under the law. Such persons may intervene at any 
stage, including the appeal, and would include those who would inter­
vene on behalf of either the plaintiff or the defendant. Prevailing inter­
venors are entitled to attorneys' fees. 

Section 4(b) (5) (B) 
Under this section a declaratory judgment will be reopened upon the 

motion of the Attorney General or any aggrie_ved person alleging that 
conduct which would have barred bailout has occurred. 

Any bailout procedure must be accompanied by a fair method of 
recovering jurisdictions where appropriate. Such a method exists under 
eurrent .Jaw and this section incorporates such a system for the new 
bailout procedure. The decisio_n to reopen the judgment to hear evi­
dence does not automatically mean that the judgment will be set aside, 
but if, for example, there has been a finding of discrimination ag-ainst 
the jurisdiction or against a unit of government within its territory, 
or if the jurisdiction has adopted a method of election which has been 
objected to previously or which would otherwise dilute the voters of 
minority citizens, the court should set aside the bailout judgment and 
the jurisdiction would again be covered by section 5. An aggrieved 
person eligible to 12eek reopening of the bailout judgment need not have 
participated in the litigation previously, and includes any person or 
group of people residing in the jurisdiction. 

Section4(b) (6) 
If no judgment has been rendered within the time set forth, the chief 

judge of the District Court for the District of Columbia may request 
whatever assistance is necessary to expedite these cases. 
Section~ 

This section prohibits any voting'qualification, prerequisite, stand­
ard, practice or procedure which results in discrimination. For pur­
poses of this Section, conduct which ha..c; the effect, impact or conse­
quence of discrimination on the basis of race, color, or member in a 
language minority group would be a Yiolation of Section 2 of the AcU 

This section also states that the fact that a minority does not have 
proportional representation in a jurisdiction's elected bodies does not 
of itself constitute a violation of Section 2 of the Act. 
Section3 

Extends the Section 203 language assistance provision until August 
6, 1992. 

The record before the Committee is clear: providing language as­
sistance in the election process facilitates the intr.QTation of language 
minority citizens into the political mainstream and such assistance can 
be nrovided in an effectiYe and cost-efficient manner. 

The Committee strongly encourages local election officials to work 
closely with language minority citizens in their communities and de­
vise an effective and cost-efficient way to target or direct their efforts 
only where language assistance is actually required. The Federal Elec­
tions Commission Handbook for Local Election Officials referred to 
previously should be most helpful in this regard. In many cases, as 

1 City of Ricllmoncl ,-.United States, 422 U.R. 358, at pp. :!67, 370, 3il (1975). 



46 

the hearing record indicated, the primary need in a specific language 
minority community is oral assistance in the registration and election 
process. If that is the case. then it may be that providing written bilin­
gual materials will only be required in a very limited way, if at all. 
· The Justice Department Guidelines correctly state that the best way 

to measure compliance is by the results achieved. 
The title is amended to read "A bill to amend the Voting Rights Act, 

to extend the effect of certain provisions and for other purposes." 

CosT EsTIMATE REQUIRED BY CLAUSE 7(A) oF RuLE XIII OF 
THE RuLES OF THJ<i HousE OF REPRESENTATIVES 

The Committee adopts the cost estimate prepared by the Congres­
sional Budget Office ( CBO) as follows: 
F iscal year: Millions 

1982 ------------ -------------------- ---- - - --------- ------------- - ----
1983 --- - ---------------------------------------------·----------- -----
1984 --------------------------------- -----~--------------------- -----
1985 ---------- - --- ----- - - - - ----·---------- - ----·------- ----------- $1. 6 
1986 -------------- - --- ------------------------------------------ 1. 7 

STATEMENTS UNDER 2(1) (3) oF HuLE XI oF THE HuLES oF 
THE HousE OF HEPRESENTATIVES 

A. Oversight statement.-No oversight findings or recommenda­
tions required pursuant to clause 2(b) (1) of Rule X have previously 
been filed with respect to this area. 

B. Budget statement.-This bill does not provide any new budget 
authority. 

0. Cost estimate from Congressional Budget Office.- The following 
letter and enclosure was received from the Congressional Budget 
Office: 

Hon. PETER W. RoDINO, ~Tr., 

U.S. CoNGREss, 
CoNGRESSIONAL BUDGET OFFICE, 

Washington, D.O., September 14,1981. 

Chairman, Oornrnittee on the Judiciary, U.S. House of Representatives, 
Washington, D.O. · 

DEAR MR. CHAIRMAN : Pursuant to section 403 of the Congressional 
Budget Act of 197 4, the Congressional Budget Office has prepared the 
attached cost estimate for H.R. 3112, a bill to amend the Voting Rights 
Act of 1965 to extend the effect of certain provisions, and for other 
purposes. 

Should the Committee so desire, we would be pleased to provide 
further details on this estimate. 

Sincerely, 
ALICE M. RIVLIN, Director. 

CoNGRESSIONAL BuDGET OFFICE-CosT EsTIMATE 

1. Bill number: H.R. 3112. 
2. Bill title : A bill to amend the Voting Rights Act of 1965 to extend 

the effect of certain provisions, and for other purposes. 



47 

3. Bill status: As ordered reported by the House Committee on the 
Judieiary, July 31, 198L 

4. Bill purpose: The bill extends the curre1i.t law thromrh August 
1984 and amends the requirements that states and other political i1iris­
dictions would then have to meet to forego review and approval by the 
Attorney General of their changes in voting laws and procedures. The 
review and approval, or "the nreclearance renuirement," by the Attor­
nw General affects 9 states and parts of 13 others. 

Under provisions of this bill, beginning in August 1984, any state or 
political iurisdiction subiect to tl>e preclearance requirement could be 
released from the requirement, if for the past 10 years it met the 
standards set forth in the bill. Among the requirements a state or po­
litical jurisdiction would have to show are that no votinQ" test or device 
had been imposed within its iurisdiction, no iudgement had been ren­
dered finding that the denial or abridgement of the right to vote had 
occurred, no violations of preclearance rules had occurred, no objection 
to changes in law had been made bv the Attorney General, and no 
declaratory judgement had been denied. ·· 

The bill wonld also extF!d thf'. Hl7!1 nnuirPment, for hili.nl!uP.l ballots 
and other voting material to 1992. Currently, this provision is sched­
uled to expire in 1985. 

fl. Cost estimate: 
Estimated authorization level: 

Fiscal year: jjfillions 

1982 ------------------------------------ ------------------- ------
1983 ----------------------------- - ------------------------- ------· 
1984 ------------------------------------------------------- ------
1985 ------------------------------------------------------- $1.6 
1986 ------- ------- -- - ----------------------·---------------- 1. 7 

Estimated outlays : 
FiEcal vear: 

1982 -------------------------------------------------------
1983 ------------------------------------------------------- ------
1984 ------------------------------------------------------- ------
1985 ------------------------------------------------------- 1. 5 
1986 ------------------------------------------------------- L7 

The costE of thiE hill hll within budget function 700. 
6. BasiE of f',st.ima.te: Si:nc~> no substantive cJ,ange in law would occur 

unti.l Angust 1984. no additional cost!O will he incurren until fiscal vear 
1985. (;RO ass11meE thnt. be.:rinning in fiscal vear 1985, some political 
iurisdictiom will ask tho dish-ict court to release them from tthe pre­
.clearr.nce renui.1·ement. For t he pnrposes of this estimate, it wa<.: ns~ 
sumf'.0. t h at 400 inrisdiction" would meet the requirements set forth in 
thr bill hv fiscal year Hl85 a:nd woulcl request release. C:BO estimate<.: 
that thr Depart.~ en I o{ .J 11sticr '"0" ld rennin~ »n ».dditiol"al $1.2 mil­
lion. aml 4C positions. heP"inninP.: in fiscal vear J 985 to hflndle the cases 
arisin~ from the inric:rlict.ioP~ seekinP.: release from preclearance. 

The estimate of ontlavs is based on historical spending patterns for 
.T11st ice Df'~artnw.nt activities. 

7. Estimate ('.oml)arison: None. 
R. Previous CBO estimate: None. 
0. EstiJYwte prepared hv: Jeffrey \V. Nitta. 
10. Estimate approwd by: 

C. G. NucKoLs 
(For James L. Blum, 

Assistant Director for Budget Analysis). 



48 

D. Government operatiow 01Jersight.-No related oversight find­
ings and recommendations have been made by the Committee on 
Government Operations under clause 4(c) (2) of Rule X. 

STATEMENT UNDER CLAUSE 2(1) (4), OF RuLE XI oF THE HousE OF 
REPRESENTATIVES CoNCERNING ANY INFLATION biPACT oN PRICES 
AND CosTs IN THE OPERATION oF THE NATIONAL EcoNOl\IY 

The committee concludes that there will be no inflationary impact 
on prices and costs in the operation of the national economy. 

CHANGES IN ExiSTING LAw MADE BY THE BILL, As REPORTED 

In compliance with clause 3 of Rule XIII of the Rules of the House 
of Representrutives, changes in existing law made by the bill, as re­
ported, are shown as follows (existing law pvoposed to be omitted is 
enclosed in black brackets, new matter is printed in italic, existing 
law in w hioh no change is proposed ia shown in roman) : 

VOTING RIGHTS ACT OF 19·65 

AN ACT to enforce the fifteenth amendment to the Constitution of the United 
States, and for other purposes 

Be it enacted by the Senate and House of Repre8entatives of the 
United States of America in Congress assembled, That this Act shall 
be known as the "Vo6ng Rights Act of 1965". 

TITLE I-VOTING RIGHTS 

SEc. 2. No voting qualification or prerequisite to voting, or stand­
ard, practice, or procedure shall be imposed or applied by any State 
or political subdivision [to deny or abridge] in a manner which results 
in a denial or abridgement of the right of any citizen of the United 
States to vote on account of race or color, or in contravention of the 
guarantees set forth in section 4(f) (2). 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. 

* * * * * * * 
SEc. 4.1 (a) To assure that the right of citizens of the United States 

to vote is not denied or abridged on account of race or color, no citizen 
shall be denied the right to vote in any Federal, State, or local election 
because of his failure to comply with any test or device in any State 
with respect to which the determinations have been made under the 
first two sentences of subsection (b) or in any political subdivision 
with respect to which such determinations have been made as a sepa­
rate unit, unless the United States District Court for the District of 
Columbia in an action for a declaratory judgment brought by such 
State or subdivision against the United States has determined that 
no such test or device has been used during the [seventeen] nirwteen 
years preceding the filing of the action for the purpose or with the 

1 The amendments made b;v ~ubsection (a) of the first Rection of this Act shall take 
Pffect on the date of enactment of the Act. 



49 

effect of denying or a:bridging the right to :rote on account ?f race_ or 
color: Provided, That no such declaratory JUdgment shall Issue with 
respect to any plaintiff for a period of [seventeen] ni~teen years after 
the entry of a final judgment of any court of the Umted States, other 
than the denial of a declaratory judgment un?er this secti01:, :whether 
entered prior to or after the enactment of thiS Act, determmmg that 
denials or abridgments of the right to vote on account of race or color 
through the use of such tests or devices have occurred anywhere in the 
territory of such pl::iintiff. No citizen shall be deni~d t~e right to vote 
in any Federal, State, or local election because of his failure to comply 
with any test or device in any State with respect to which th~ deter­
minations have been made under the third sentence of subsectiOn (b) 
of this section or in any political subdivision with respect to which 
such determinations have been made a separate unit, unless the United 
States District Court for the District of Columbia in an action for a 
declaratory judgment brought by such State or subdivision against 
the United States has determined that no such test or device has been 
used during the ten years preceding the filing of the action for the 
purpose or with the effect of denying or abridging the right to vote on 
account of race or color, or in contravention of the guarantees set forth 
in section 4(f) (2): Provided, That no such declaratory judgment shall 
issue with respect to any plaintiff for a period of ten years after the 
entry of a final judgment of any court of the United States, other than 
the denial of a declaratory judgment under this section, whether en­
tered prior to or after the enactment of this paragraph, determining 
that denials or a;bridgments of the right to vote on account of race or 
color, or in contravention of the guarantees set forth in section 4( f) (2) 
through the use of tests or· devices have occurred ariy"\vhere in the 
territory of such plaintiff. 

* * 
SEc. 4.2 (a) (1) To assure that the right of citizens of the United 

States to vote is not denied or abridged on account of race or color, 
no citizen shall be denied the right to vote in any Federal, State, or 
~ocal election because of his failure to comply with any test or device 
manY. State with respect to which the determinations have been made 
under the first tvro sentences of subsection (b) or in any political sub­
division of such State (as such subdivision existed on the date such 
determinations were mmle with respect to such State), though such 
determinations were not made with respect to such subdivision as a 
separate unit, or in any political subdivision with respect to which 
such determinations have been made as a separate unit, unless the 
Un_ited States District Court for the District of Columbia [ in an 
actwn for a declaratory judgment brought by such State or subdivision 
against the United States has determined that no such test or device 
has_ been used during the nineteen years preceding the filing of the 
a~twn for the purpose or with the effect of denying or abridging the 
nght to vote on account of race or color: Provided, That no such 
dec~aratory judgment shall issue with respect to any plaintiff for a 
periOd of nineteen years after the entry of a. final judgment of any 
court of the United States, other than the denial of a declaratory 

2 The amen(<ment made b~· subsection (b) of the fir't ~ection of this Act became ~ft'ecth·e 
an August 6. 1984. 



50 

judgment under this section, whether entered prior to or after the 
enactment of this Act, determining that denials or abridgments of the 
right to vote on account of race or color through the use of such tests or 
devices have occurred anywhere in the territory of such plaintiff] 
issues a declaratory judgment uncler this section. No citizen shall be 
denied the right to vote in any Federal, State, or local election because 
of his failure to comply with any test or device in any State with re­
spect to which the determinations have been made under the third 
sentence of subsection (b) of this section or in any political subdivision 
of such State (as such subdivision existed on the date such dete'f'171.,ina­
tions were made ~oith respect to such State), though such dete'f'171.,ina­
tions were not made ~vith respect to such subdivision as a separate unit, 
or in any political subdivision with respect to which such determina­
tions have been made as a separate unit, unless the United States 
District Court for the District of Columbia [in an action for a declara­
tory judgment brought by such State or subdivision against the United 
States has determined that no such test or device has been uSed during 
the ten years preceding the filing of the action fur the purpose or with 
the effect of denying or abridging the right to vote on account of race 
or color, or in contravention of the guarantees set forth in section 4 (f) 
(2): Provided, That no such declaratory judgment shall issue with 
respect to any plaintiff for a period of ten years after the entry of a 
final judgment of any court of the United States, other than the denial 
of a declaratory judgment under this section, whether entered prior' 
to or after the enactment of this paragraph, determining that denials 
or abridgments of the right to vote on account of race or color, or in 
contravention of the guarantees set forth in section 4(f) (2) through 
the use of tests or devices have occurred anywhere in the territory of 
such plaintiff] issues a declaratory judgment under this section. A 
declaratory judgment under this section shall issue only if such court 
dete'f'171.,ines that during the ten years preceding the filing of the action, 
and during the pendency of 8UCh actio'flr-

(A) on such test or device has been used within such State or 
political subdivision for the purpose or ~vith the effect of denying 
or abridging the right to 1Jote on account of race or color or (in 
the case of a State or subrdivision seeking a dRClaratory judg­
ment under the second sentence of this subsection) in contraven­
of the guarantees of subsection (f) (2) _; 

(B) no final judgment of any court of the United States, other 
than the denial of declaratory judgment under this section, has 
dete'f'171.,ined that denials or abridgements of the right to vote on 
account of race or color have occurred an!Jwhere in the territory 
of such State or pol:itical subdivision or (in the case of a State 
subdivision seekin,q a declaratory judgrMrit under the seconcl 
sentence of this subsection) tltat denials or abridgements of the 
r·ight to vote in contravention of the gua1·antees of subsootion 
(/) (2) ha1Je occurred anywhere in the territory of such State or 
subdivision and no consent decree, settlement, or agreement has 
been entered into resulting in any abandonmAnt of a votinp prac­
tice challenged on such grounds; and no declaratory judgment 
under this section shall be entered during the pendency of an 
action alleging such denials or abridgements of the right to vote_; 



51 

(C) 1W Federal examiners wnder this Act lw!ve been assigned 
to such State or political subdivision_: · 

(D) such State or political subdivision and all governmental 
1tnits u•ithin its territory have complied with section 5 of this 
Act, including compliance .with the requirement that no change 
covered by section 5 has been enforced 1')ithout preclearaJWe 
nnder section 5, {J;nd have repealed all changes covered by section 
5 to 1ohich the Attorney General has s~tccessfnlly objected or as to 
1ohich the United States District Court for the District of Colwm­
bia has denied a declaratory judgrnent; 

(E) the Attorney General has not interposed any objection 
(that has not been overturned by a final judgment of a court) 
and no declaratory judgment has been denied under section 5, 
1oith respect to any submission by or on behalf of the plaintiffor 
any goveT'Jl!nu:ntal unit ~oithin its territory under section 5; and 
no such submissions or declaratory judgment actions are pen¢~ 
ing; and . . 

(F) such State or political subdivision a'(Ui /}Zl governmental 
units within its territory-

(i) have eliminated 1:oting procedures and m 'J thods of elec­
tion 1uhich inhibit or dilnte equal access to the electoral 
proce8s; 

( ii) have engaged in constructi•oe efforts to eliminate in­
timidation and harrassment of persons exercising rights pro­
tectr,d under this Act; and 

( i:ii) ha've engaged in other constructive efforts, s1wh as 
expanded opportunity for convenient registration and voting 
for every person of voting age and the avpointment of n~inor­
ity persons as election officials throughout the jurisdiction 
and at all stages of the election and registration process. 

(92) To assist the court in determining ~ohether to issue a declaratory 
judgment wnder this subsection. the plaintiff shall present evidence 
of minorit11 participation, including evidence of the levels of minority 
f'roup registration and voting, changes in such levels over time, and 
disparities between minority-group and non-minority-group partici­
pation. 

(3) No declatory judgment shall issue under this subsection with 
respect to such State or political subdivision if such plaintiff and gov­

(' rnm'Jntal units within its tm·ritory have, during the per-iod beginning 
ten years before the date the .fudgment is issued, engaged in violations 
of an11 pro1)ision of the Constitution or laws of the United States 01' 

cny State or poN,tical subdivision with respect to discrimination in 
'coting on account of race or color or (in the ease of a State or S1tbdivi­
sion seeking a declaratory judgment under the 8econd sentence of this 
subsection) in contraven~ion of the guarantees of subsection (f) (92) 
unless the plaintiff establishes that any such violations were trivial, 
'were promptly corrected, and were not repeated. 

( 4) The State or political s~tbdivision bringing such action shall 
publicize the intended commencement and any proposed settlement 
of such action in the media serving such State or political subdivision 
and in appropriate United States post offices. Any aggrieved party 
may intere1)ent at any stage in such action. 



52 

~ 0 J An a.ct.ion pursuant to this subsection shall be heard and deter­
mined by a court of three judges in ·accordance with the provisions 
of section 2284 of title 28 of the United States Code and any appeal 
shall lie to the Supreme Court. The court shall retain jurisdiction 
of any action pursuant to this subsection for [five years after judg­
ment and shall reopen the actJion upon motion of the Attorney 
General alleging that a test or device has been used for the pur­
pose or with tihe effect of denying or abridging the right to vote on 
account of ra.ce or color, or in contravention of the guarantees set 
forth in section 4(f) (2).] ten years after judgment and shall reopen 
the action UJJon motion of the Attorney General or any aggrieved 
person alleging that conduct has occurred which, had that conduct 
occurred during the ten-year periods referred to in this subsection, 
would have precluded the issuance of a declaratory judgment undeT 
this subsection. 

[If the Attorney General detennines that he has no reason to be­
lieve that any such test or device has been used during the nineteen 
years preceding the filing of an action under the first sentence of this 
subsection for the purpose or with the effect of denying or ·rubridging 
the l'ight to vote on a.ccount of race or color, he shall consent to the 
entry of such judgment. 

[If the Attorney General determines that he has no reason to be­
lieve that any such test or device has been used during the ten years 
]_Jreceding the filing of an action under the second sentence of this 
subsection for the purpose or with the effect of denying or abridging 
the right to vote on account of race or color, or in contravention of 
the guarantees set forth in section 4(f) (2) he shall consent to the 
entry of such judgment.] 

(6) If, after two years from the date of the filing of a declaratory 
judgment under this susbection, no date has been set for a hearing 
in such action, and that delay has not been the result of an avoidable 
delay on the part of counsel for any party, the chief judge of the 
United States District Court for the District of Columbia may re­
quest the Jwlicial Council for the Circuit of the District of Columbia 
to provide the necessary judicial resources to expedite any action 
filed under this section. If such resources are unavailable within the 
circuit, the chief .Judge shall file a certificate of necessity in accord(J!fWe 
with section 1!91! (d) of title 1!8 of the United States Code. 

* * * * * * * 
TITLE II-SUPPLEMENTAL PROVISIONS 

* * * * * * * 
BILINGUAL ELECTION REQUIREMENTS 

SEc. 203. (a) The Congress finds that, through the use of various 
practices and procedures, citizens of language minorities have been 
effectively excluded from participation in the electoral process. 
Among other factors, the denial of the right to vote of such minor­
ity group citizens is ordinarily directly related to the unequal edu­
cational opportunities afforded them, resulting in high illiteracy 
and low voting participation. The Congress declares that, in order 



53 

to enforce the guarantees of the fourteenth and fifteenth amendments 
to the United States Constitution, it is necessary to eliminate such 
discrimination by prohibiting these practices, and by prescribing other 
remedial devices. 

(h) Prior to August 6 [1985] 1992, no State or political subdivision 
shall provide registration or voting notices, forms, instruction, assist­
ance, or other materials or information relating to the electoral 
process, including ballots, only in the English language if the Direc­
tor of the Census determines (i) that more than 5 percent of the citi­
zens of voting age of such State or political subdivision are members 
of a single language minority and ( ii) that the illiteracy rate of such 
persons as a group is higher than the national illiteracy rate: Provided, 
That the prohibitions of this subsection shall not apply in any political 
subdivision which has less than five percent voting age citizens of each 
language minority which comprises over five percent of the statewide 
population of voting age citizens. For purposes of this subsection, 
illiteracy means the failure to complete the fifth primary grade. The 
determinations of the Director of the Census under this subsection 
shall be effective upon g_ublication in the Federal Register and shall 
not be subject to review m any court. 

* * * * * 



SUPPLEMENTAL VIEWS OF HON. HENRY J. HYDE AND 
HON. DAN LUNGREN 

I am deeply saddened at the manner with which the Committee re­
ported H.R. 3112 on the afternoon of July 31st. While the lopsided 
vote of 23 to 1 gives the appearance of virtual unanimity, the reality 
is quite the opposite. Beneath the surface broil strong currents of 
mutual distrust and discontent which carry with them the very real 
possibility that the 1981 amendments to the 1965 Voting Rights Act 
may be denied the truly bipartisan support they need and deserve if 
they are to gain enactment by the Congress before August 6 of next 
year. 
·· I voted in favor of the amendments, because I had previously 
pledged to do so, and because the Act should be extended if the voting 
rights of those protected by it are to be secured. !have always believed 
that the right to vote-guaranteed by the 15th Amendment-is more 
important even than the rights of free speech. All the debate and rhe­
toric in the world is meaningless without the implementing force of 
a vote. 

As ranking minority member of the Subcommittee on Civil and 
Constitutional Rights, I felt an obligation to make every effort to 
forge a compromise. Accordingly, I devoted a great deal of time and 
rnergy to galvanizing support for extension among those whose philo­
sol_)hical and political opposition runs far deeper than my own, but 
\Yhose support is indispensable if this legislation is to become law. 

In all, I introduced three bills directed toward fashioning a middle­
ground on which the warring factions could eventually agree. My first 
two. H.R. 3198 and H.R. 3473. sought to replace the administrative 
nreclearance provisions of Section 5 of the Act with a judicial remedy. 
They were born of my basic apprehension of summary administrative 
procedure and my deeply held belief that the laws of this country 
should properly be adjudicated in its courts rather than in the offices 
of its prosecutors. 

Mv position on thr feasibility of this approach gradually shifted 
as I heard witness after witness describe the delays which judicial 
remedies had raused in the years preceding the passage of the 1965 
Act. Reluctantly, I came to embrace the conclusion that administrative 
0nforcement is indeed a practical necPssity: the risks of continued vot­
in!Y rights abnses arc too vreat to fall victim to philosophical purity. 

H.R. 394-8, introduced with my colleague Dan Lungren on .Tune 17. 
represented an effort to retain administrative enforcrm1ent of Section 5 
ncrmanently. subject to a realistic mechanism which would permit 
jnrisdictions covered bv the Act to achieve rehabilitation by showing 
adherence to criteria and guidelines significantlv more strict than now 
);.enuired. Give them a way out, we thought. and make it difficult, but 
not unreasonable. by reouiring thosr. iurisdictions to improve condi­
tions in orclrr to fJHalify. By providing a proceclurr which wonld 

(M) 



55 

isolate those jurisdictions which fail to qualify, the disapproving focus 
of the nation could be indeed therapeutic. 

The structure of our proposal carried with it the tentative endorse­
ment of some who never before believed that they could compromise in 
their opposition 'to extension. It would have required any covered juris­
diction seeking escape from administrative preclearance, or bailout, to 
convinee a federal court that: 

( 1) no "test or devices", such as literacy tests, poll taxes or the 
like had been used in a discriminatory manner for a decade preeed­
ing the petition for relief; 

(2) the preclearance requirements of Section 5 had been fully 
obeyed, including the timely submission of data as required by law 
together with swift compliance with adverse court determinations 
once ambiguous provisions of the Act were clarified, again for a 
ten "year period ; 

(3) the Department ofJustice's Civil Rights Division had not 
made any substantial objection to any proposed eleetoral change 
submitted during the previous ten years; and 

( 4) the petitioning jurisdiction had gone beyond the require­
ments of current law and had embraced the spirit of the Act by 
making constructive efforts to alter practices and proeedures now 
in effect and which may rem_ain so under the grandfather clauses 
of the 1965 Act. · 

Once these showings were made to the satisfaction of the court, our 
proposal provided that jurisdiction would be retained by the court for 
an additional five-year period. Throughout this "parole" term, any 
aggrieved party, or the Attorney General, could request that the court 
review the issuance of bailout, arguing that the covered jurisdiction 
had acted in a way which was inconsistent with the initial eligibility 
standards. For example, if a jurisdiction attempted to enact a ·statute 
during the parole period which it could not have enacted prior to that 
time, 1t would be subject to revocation of bailout and the necessity to 
qualify all over again. In our view, this sanction was a heavy one, both 
in political and practical terms, and would discourage jurisdictions 
which might arguably consider a retmn to pre-1965 conduct. 

Between June 17 and June 31, we and the Subcommittee Minority 
staff were engaged in constant negotiation with. virtually every group 
interested in the voting rights question. At 7 p.m., on the evening of 
July 30, for example, only hours before the full Committee was to 
meet, additional changes to our proposal, submitted by representatives 
of the Black Caucus, were still being entertained. Among those changes 
to ''hich we had agreed during the course of the negotiation period 
were the following: 

( 1) the logical use of "appropriate" federal district comts was 
discarded in favor of placing the forum for processing bailout 
petitions in the United States District Comt for the District of 
Columbia. Furthermore, three judges, two of whom must be ap­
pointed by the chief judge of the District of Columbia circuit 
court, were required to form the panel rather than the single judge 
we had earlier envisioned; 

(2) language was changed in the eligibility requirements to 
denv bailout if any objection had been raised by the Department 
of .Tustice tlnring the ten-yE>ar period. or if any adverse "final 



judgment" had been issued on the subject of voting rights abuse 
anywhere within the territory of the petitioning jurisdiCtion; 

(3) the five-year parole period was extended to ten years with 
the effect that any jurisdiction seeking escape from administrative 
preclearance must be able to show ten years of exemplary conduct 
before bailout is issued, and another ten years after bailout is con­
ditionally granted; 

( 4) the term "constructive efforts" was further defined to show 
. that any such efforts must be directly aimed at the elimination of 
all structural or procedural barriers to minority voter participa­
tion as well as the eradication of voter harassment and intimida­
tion where it exists; 

( 5) the effective date for the new bailout system was extended 
from August 6, 1982, as existing law would mandate, to August 6, 
1984. There is little logical basis for such a delay, especially since 
the original1982 date was chosen with a desire to avoid the fallout 
from 1980 redistricting decisions and since civil rights officials at 
the Department of Justice have informed me that it is unnecessary. 
Nevertheless, the spirit of compromise moved us to accept this 
further concession. 

It is worth noting that the bailout mechanism in the present Act, 
which the original version of H.R. 3112 would have simply extended, 
allows for the use of a three-judge federal panel in the district court 
for the District of Columbia, but limits the showing a covered juris­
diction need make to the absence of a discriminatory test or device 
for a period of 17 years prior to the filing of the petition. No evalua­
tion of the covered jurisdiction's past adherence to the law, its record 
of objections, or its efforts to remove existing discriminatory practices 
or procedures is required as in our proposal. The only reason the 
existing standard is presently effective is that the 17-year period 
extends to a point before the Act was passed, to a time when poll 
taxes, literacy tests, or other "trsts or devices" were too frequently 
used to deny minorities the right to vote. On August 6, 1982, the 
seventeen-year period will revert only to the passage of the Act on 
Angust 6, 1965. Many more jurisdictions will doubtless then become 
eligible than would under our proposal. 

Our nnderstanding was that if an agreement could not be reached 
before full Committee markup on the R1st, negotiations would con­
tinue until floor consideration in late September or early October. 
Unfortunately, we were mistaken. 

Late in the evening of .T uly RO, and in the early morning hours of 
.T ulv R1, our draft and the agreements which had been reached up 
to that point, were stitched together and appended to new language, 
some previously the subject of heated debate during the negotiations 
and some merely the inspiration of the moment, to form a new amend­
ment which two members of the minority were persuaded to sponsor. 
This, despite the fact that some of ·what was added was clearly in­
appropriate to even the most untrained eye, and that copies of the 
amendment were unavailable to the Committee membership for pur­
noses of study until the moment it was being debated before them. 
In fact , most Committ.P.e members, inelnding at least one of t.he spon­
sors. were una·ware of its content when we arrived at work on the 
morning of the Rlst. 



57 

What was ultimately reported is discussed at length in the remarks 
of my colleague, Congressman M. Caldwell Butler. In sum, several 
provisions in particular concern me. 

First, bailout is absolutely unavailable, under the amendments to 
section 4 (a) of tJ:.le Act, if an action alleging a denial or abridgment 
of the right to vote is pending. That means that a $15.00 filing fee 
alone can effectively deny ba1lout to an otherwise deserving juris­
diction. 

Second, each and every jurisdiction in a covered state must be 
granted bailout before a state legislature can become eligible. This 
means that one stubbornly racist county, over whom the state gov­
ernment may have little or no effective control. can indefinitely doom 
the state legislature to what the Supreme Court has termed the 
"extraordinary" procedures attendant to administrative clearance. 

Third, mere support for any legislation which results in an objec­
tion by the Department of Justice, whether that support is formal 
or informal, the work of elected officials or others, may still bar a 
jurisdiction from bailout for ten years. _ 

Fourth, the definition of "final judgment" is broadened to include 
settlement or com:ent decrees as a bar to achieving bailout. 'Ve were 
willing to permit the court to review and examine such agreements 
and to include adverse final determinations on the merits as express 
bars to eligibility, but any good lawyer knows that _any number of 
factors, including practical considerations such as the financial abil­
ity of a jurisdiction to fight the United States government through 
the courts, can determine whether or not to enter into_ consent decrees 
or settlements. The language of this amendment can on lv serve to 
encourage jurisdictions who might otherwise comply with govern­
ment's demands without litigation, to instead fight through to the 
bit,ter enfl lest they be declared ineligible for e>;cape from the ad­
"1inistrfttive preclearance provisions of the Ad .. The law has always 
favorerl settlements. This provision encourages Ji.tigfttion. 

Ironically, i£ the amendments reported by the Subcommittee were 
to gain enactment by the Congress in their present form, I believe 
there would be severe constitutional repercussions. I say this because 
the Act.'s constit.uhomdity was upheld- in thP. 1~6() r'lcrision of Kat­
zenbach v. South Carolina, and last year in Oity of Rome, Georqia v. 
United States, on the presence of certain unique factors. One was the 
belie£ that the 1965 deoarture from historical tenets of :federalism 
was only "temporary", "but necessary based on ]Jre-1965 conduct in 
the covered jurisdictions. A great many things have changed in the 
South since 1965, as our hearings demonstrated, and new, more pro­
p.-ressive racial attitudes have begun to replace the cultural bias of 
the past. This change is, as I have said, far from complete. It is suffi­
cient, though, to effectively dilute the force o:f the showing before the 
court in 1966. · 

Moreover, the language I have discussed, together with other limita­
tions on bailout incorporated into the amendment adopted by the 
Committee would make its availability highly unlikely, as a practical 
matter, thereby changing the temporary status of the Act to a more 
constitutionally suspect permanent condition. In my judgment, such 
a change can only survive constitutional scrutiny if the method of 



58 

escape is reasonably achievable. What was reported by the Commit­
tee cannot possibly satisfy that test. 

The most onerous product of the Committee's actions is a growing 
belief with which we take issue, that the Act and the people it protects 
are being used for the political purpose of galva:qizing support for 
the present leadership of the House in the 1982 eleetions. 

Reason must prevail, and soon. 
I suppose it is hopelessly utopian to suggest that some issues­

Social Security and the Voting Rights Act come to mind-deserve 
to be above partisan politics. Too much is at stake for too many people 
for some to play Russian roulette with their fears and hopes. They 
have. a right to expect more from their elected representatives. 

The struggle for equitable and effective legislation in this most 
important area is not over-it has just gotten underway. 

HEXRY J. HYDE. 

DAN LUNGREN. 



SUPPLEMENTAL VIEWS OF THE HONOR..\BLE ROBERT 
McCLORY 

During the hectic moments before the 1981 amendments to the 
Voting Rights Act were reported by the full Judiciary Committee, I 
intended to offer amendments to alter the standards by which minority 
language ballots become federally mandated. In the interest of time, I 
chose not to formally propose them; that decision should not be inter­
preted as a change in my position. 

When the Act was last considered in 1975, amendments were made 
to it which broadened its coverage to include American citizens whose 
illiteracy rate was below the national average and whose language 
dependency rested on a language other than English. This expansion 
affected two portions of the . Act: the administrative preclearance 
provisions of title I, section 4, and the supplemental provisions of 
title II, section 203. Each contains a separate trigger but both are _ 
~ased on. the erroneous assumption that illiteracy in English presumes 
hteracy 111 another language as well as an equation bet\veen language 
minority status and the historic discrimination which has been the 
singular burden of black Americans since the first slaves were brought 
to this country in1619. 

The argument has been made that, because of their reliance on a 
language other than English, non-English speaking minorities have 
been the victims of economic and political discrimination resulting in a 
dilution of their ability to influence their own destinv Yia the vote. 
The same might be said of Hasidic Jews or Polish-Americans or Asian­
Americans. But unless their voting age population level approaches 
the arbitrary five percent threshold outlined in section ±(f) (3) or in 
section 203 (b), they do not acquire the significant guarantees that the 
Act prescribes. 

Our society has developed on the "melting pot theory", that is, that 
the whole of America is a nation of immigTants, and that each of us, 
or our forefathers, probably encountered discrimination as a result of 
the language we used or the habits we orought with us from our home­
lands. The result was that necessity forced us to learn English if we 
wished to succeed; we valued our heritage, as I do my Irish name, but 
we recognized that as Americans, we were required to acquire a facility 
in English if we were to assimilate effecti vcly and take part in running 
this nation. 

Manv of those who favor the creation of bilingual ballots based on a 
relianc~ on a language other than English wish to permit the transfer 
of power without assimilation. This effort represent~ a ~ramatic sh~ft 
in the one-man, one-vote concept of government which IS the premise 
of our democracy. We should therefore be very careful about the 
changes we make to that concept, however subtle they may be. 

The 1975 amendments have the effect, whether intended or not. of 
encouraging minority language dependency and therefore self-im-

(59) 



60 

posed segregation, both politically and culturally. Indeed, if the 
language minorities now included under the administrative preclear­
ance provisions of sections 4 and 5 are any accurate indication, federal 
law will continue to outlay any state legislation which would have the 
effect, even if the purpose is benign, of reducing their group repre­
sentation at. any level of government. 

I believe such a federal policy, as contrasted to a localized state 
practice, is both misguided and inappropriate, and will have the 
counterproductive long-term effect of diminishing the homogeneous 
character of our people. Large cultural constituencies whose concerns 
are more parochial than national ultimately threaten a move away 
from the precepts of republican democracy toward the uncertainties of 
coalition rule. 

\Vhen H.R. 3112 is considered on the floor, 1 plan to offer amend­
ments intended to focus the language of the bill on those whose con­
dition brought. about its passage in the first place : black Americans. 
Their plight is unique in the annals of American history and, unless 
others can demonstrate that their past includes the horrors of slavery 
or the dehumanizing experience of chattel equivalency, they should not 
be permittE'd the same protections by way of piggy-back legislative 

·consideration. In mv view, the 1975 hearing record does not meet that 
test; in fact, the language minority amendments to the Act were 
adopted as a result of a compromise during the House and Senate 
conference. Unfortunately, they did not then receive the attention 
they deserved. Perhaps this time it will be differ·ent. 

RoBERT McCwnY. 



DISSENTING VIEWS OF RON. M. CALDWELL BUTLER 

INTRODUCTION: CoNSIDERING THE VoTING RIGHTS AcT IN 1981 

In 1965 the Voting Rights Act was passed to protect the right to 
vote of Blacks in the south. The legislation was later amended to ex­
tend its protections to language minority citizens. In 1975, as a mem­
ber of Congress, I actively participated in Congress's deliberations on 
the Voting Rights Act. I was then and still am an advocate of a strong 
Federal role to assure that no citizen is denied the voting guarantees 
of the Fifteenth Amendment for reason of race, color, or native 
language. - · 

Since its enactment in 1965, the Civil Rights Act has been amended 
by Congress twice: in 1970 and in 1975. In each instance Congress has 
reaffirmed the sanctity of the right to vote in our democratic society. 
For the third time since the Voting Rights Act was passed, Congress 
is reviewing the progress made under the Act to determine the appro­
priate Federal role in protecting the voting rights of minority group 
citizens. The original intent of the Act, the enfranchisement of Black 
citizens, was brg;ely accomplished within the first five years after the 
Act's passage. Throughout the South, Black citizens register and vote 
at comparable rates to White citizens. For example, in the 1980 Presi­
dential election, the rate of Black voter registration in the south was 
estimated to be 59.3 percent as compared to a 'White voter registration 
rate of 66.2 percent. In ·addition, the number of elected Black officials 
in the South has increased impressively since 1965. As reported by the 
U.S. Commission on Civil Rights in its 1981 report on voting rights, 
the number of elected Black officials has increased from less than 100 
in 1965 to 2,042 in 1980. The States of Louisiana and Mississippi, for 
example, rank among the top four States in the county for the number 
of elected Black officials at all levels of government. The Georgia State 
Assembly has the highest percentage of Black members of any State 
in the country. Likewise, in my home of Roanoke, Virginia, where 
Blacks comprise only 22 percent of the total population, our city coun­
cil is chaired by a Black mayor and vice-mayor. 

In considering the Voting Rights Act of 1981 the Congress is faced 
with a vastly different social and political environment than that 
which existed in 1965 and which justified the Act. As I see it, our task 
is to pass legislation which takes into account this nevv environment, 
and as such, is a precise response to the need beyond 1982 for Federal 
protection of the voting rights of-minority group citizens. It is easier 
for Congress not to do this, burt rather, to continue the current "shot­
gun" approach to enforcing- voting rights by legislating an extension 
of the special provisions of the Act and thereby permanently penalize 
tho southern states which historica.lly were asscciated with voting dis­
crimination. Though this may be the easier alternative it is neither 
the most rffectiYc nor ·appropriate. ~\.s the conditions "·hich ju~ified 

(6 1) 

H.Rept. 97-227 - -- 2 



62 

the imposition of the special provisions of the Voting Rights Act be­
eome increasingly remote and outdated, the imposition of such require­
ments merely breeds contempt for the law. 

THE CoMMITTEE PRocEss 

In August the House Judiciary Committee of the 97th Congress 
had the opportunity to develop new and creative voting rights legis­
lation for the 1980's and beyond. Accomplishing this would have re­
quired a thorough, deliberate, and rational decision-making process. 
Instead the Committee hurriedly and haphazardly passed legislation 
which is conceptually unsound and technically incompetent. Greater 
consideration was giv·en to reporting out legislation before the August 
recess than to as<.>uring that its language was accumte and its potential 
impact was understood. A review of some of the steps which preceded 
the 9ommittee's passage of this legislation will highlight these short­
commgs. 

T he Judiciary Cominittee's consideration of the Voting Rights Act 
began on May 6, 1981 when the Subcommittee on Civil and Constitu­
tional Rights began holding hea;rings. After seven weeks, and more 
than one hundred witnesses had testified, these hearings ended. The 
voluminous testimony presented in the Subcommittee's hearings es­
tablished the record from which we vvere asked to formulate andre­
port to the House effeeti ve voting rights legislation. Yet, two weeks 
after the hearings were concluded, when the full Committee was con­
vened, a oomprehensive summary or analysis of the Subcommittee's 
finding had not been prepared. This failure of the Subcommittee staff 
to synthesize the information into a workable and meaningful form 
all but rendered it useless. 

On July 31 the Judiciary Committee ordered that H.R. 3112 as 
amended be reported to the floor. Contained within this legislation was 
a new "bailout" provision. The term "bailout" refers to the process 
whereby a "covered" State or political subdivision may terminate its 
coverage under the special provisions of the Act through appropriate 
legal proceedings. On this final day of Committee action, t,he "bailout" 
nrovision now included in the bill was introduced less than one hour 
before we were asked to vote on it. Only those members who were privy 
to the closed door session in which this bailout meehanism was negoti­
ated were aware of its content. The proposal was introduced to the full 
Committee in such a frantic fashion that the final version was not 
identified by a bill number, but rather by the time that it was typed 
and photocopied for distribution to the members of the Committee. It 
was clear that neither the sponsors nor the Subcommittee staff had 
analyzed the impact of establishing this bailout provision. In addition, 
there. was no opportunity to examine the provisions of the proposal 
ancl therefore no opportunity to object. This is a poor way to legislate 
and a disservice to the people we serve. 

THE IMPOSSIBLE BAILOUT 

Althou~h the concept of "bailout" has 11lways been a part of the 
Votin~ Rights Act, in practice it has been illusory. When the Act was 
rstabl'ished in 1965, under Section 4 (a). a State or political subdi­
Yis1on could bailout from the special provisions of the Act. if it could 



63 

show in a declaratory judgment suit before the U.S. District Court 
for the District of Columbia, that it had not used a "test or device" 
with a discriminatory purpose or effect for a period of five years. 
States and political subdivisions subjected to the special provisions of 
the Act because they had used such a "test or qevice", as determined 
OJ;l August 6, 1965, were eligible to bailout on August 6, 1970. However, 
in 1970, before this five year period expired, Congress amended Sec­
tion 4 (a) to extend the requirement to ten years; then, in 1975, before 
this ten year requirement expired, Congress amended Section 4 (a) to 
extend the requirement to seventeen years. The Act, itself, is, of course, 
nermanent. In 1982, if Congress were to take no action to amend Sec­
tion 4 (a), no provision of the Act would "expire". Rather for the first 
time in seventeen years, States and political subdivisions covered by 
the special provisions in 1965, would have a realistic opportunity to 
bailout. It is a responsible exercise of Congressional authority to create 
such an opportunity in 1982, either by Congress taking no action to 
ammd the Voting Rights Act or bv initiating new legislation. 

The Courts have interpreted Section 4(a) in a manner which, com­
bined with the Congressional action in 1970 and 1975 to amend Section 
4. has made bailout impossible to achieve. For example. in Virqinia v. 
United States the State of Virginia was denied bailout desnite the fact -
that no evidence suggested that the literacy test which Virginia had 
once used had been administered in a discriminatory manner. The Dis­
trict Court for the District of Columbia ruled that though the St ate 
had administered the literacy test fairly to both Black and White 
voters, the existence of unequal educational opportunities for Blacks 
as compared to Whites disadvantaged Black voters in taking literacy 
tests. Therefore, the Court reasoned that the literacy test did have a 
discriminatory effect against Black voters and under -Section 4 (a) was 
grounds to deny bailout. This decision has imposed a presumption of 
guilt upon States and political subdivisions covered by the special pro­
visions, which has made bailout impossible to achieve. The assumption 
that such impure motive exists is Pot borne out hv the record of 
progress since the Act's passage and the ~rood faith efforts by the 
majority of political officials to comply with the Act. 

This inequity was eXl'lcerbated hy the Sunreme Court's decision in 
City of Rome v. United States. The Court ruled that no politir.al sub­
division within 'l State which is covered by the ·special provisions of 
the Act could seek to bailout independentlv of the State itself. Conse­
quently, local political subdivisions covered bv the Act, the great major­
ity of which have no record of votinn: discrimination, are prevented 
from bailout for no reason other than their location in a State targeted 
by the Act. Only evidence which establishes thn.t a widesnread, pattern 
or practice of votinl! discrimination within a State should warrant de­
nial of bailout to political subdivisions. In the absence of such evidence, 
preventing the bailout of complying political subdivisions is unfair, 
of questionable Constitutionality, and ought to be changed. 

B.ULOC'r ,\S .\X INCEXTIVE 

Bailout should operate as an incentive for inrisdictions to advance 
the voting rights of minority group citizens. A bailout provision, based 
upon stringent. yet achieYable requirements could create such an in-



64 

centive. Enhancing the political participation of minority group citi­
zens would become a jurisdiction's goal while satisfying the require­
ments for bailout would become the vehicle for attaining that goal. In 
the past I have supported bailout provisions based on this constructive 
logic and would do so again today. Unfortunately, the full Committee 
has made a mockery of the idea of reasonable bailout by crafting leg­
islation which would establish requirements impossible to achieve. In 
short, H.R. 3112 as reported by the full Committee would effectively 
extend forever the special provisions of the Voting Rights Act on the 
particular States and political subdivisions currently covered by them. 
This is an excessive response to the problem of securing voting rights 
which provides no incentive for covered jurisdictions, to change obso­
lete election laws and procedures; it is therefore unac~'eptable to me. 

THE BAILOUT PRoviSION OF H.R. 3112 

H.R. 3112 as reported by the full Judiciary Committee again amends 
Section 4 (a), extending from 17 to 19 years the period of time for 
which a jurisdiction must prove in a declaratory judgment suit before 
the U.S. District Court for the District of Columbia that it has not 
used a test or device for the purpose or with the effect of denying or 
abridging the right to vote. Therefore, Southern states and their 
political subdivisions would not be eligible to bailout until August 6, 
1984. However, on the next day, August 7, 1984, a new bailout provi­
sion would go into effect providing that any political subdivision 
covered by the special provisions at that time would remain subjected 
to them indefinitely, or until the political subdivision met the new 
requirements to bailout. Bailout W'Ould be permitted if in a declaratory 
judgment suit before the U.S. District Court for the District of 
Columbia, the petitioning political subdivision showed that during the 
ten years preceding its request for bailout, including the "pendency" 
of the action : · . 

(A) No "test or device" had been used anywhere within its 
boundaries "fur the purpose or with the effect of denying or 
abridging "the right to vote on account of race, color or native 
language; 

(B) No "final judgment" had been entered against it by any fed­
eral court in which the political subdivision was found to have 
denied or abridged the right to vote on account of race, color, or 
native language. For the purposes of this subsection, consent de­
crees, settlements, or agreements relating to voting rights may 
constitute "final judl!'ments" if they result in "any abandonment of 
a voting practice" challenged for its discriminatory ·purpose or 
effect. This requirement cannot be met, so long as any action is 
penrlin,<!' which "alleges" a denhl of the right to vote; 

(C) No Federal examiners had been assigned to its territory; 
(D) It, "and all governmental units within its territory" had 

complied with the preclearance provisions of Section 5, by show­
ing that no change within the preview of Section 5 had been 
enforced without being precleared and it had repealed all laws to 
which objections had been interposed by the Department of Jus­
tice or the U.S. District Court for the District of Columbia. 



65 

(E) No objection had been interposed to any submissi<?n ~ade 
under section 5 or advocated "by or on behalf of the plamtiff or 
any governmental unit within its terr~tory.~' . . . , 

(F) It, ';and all governmental umts withm Its tern~ory ~ad 
(i) eliminated voting proced~1~es and ~~tho~s of ~~ect10n whi?h 
inhibit or dilute minority politiCal partiCipation; ( u) engaged m 
constructive efforts to eliminate voting intimidation a:r:d harass­
ment affecting minorities; and (iii) engaged i~ cons~ructrve eff~rts 
to expand the "opportunity for convemen~ registratiOn and V<?hng 
for every person of voting age" by showmg among ?ther thmgs, 
"the appointment of minority persons as election ?fficials thn;mgh­
out the jurisdiction and at all stages of the elechon and registra­
tion process." 

Section 2 of the bailout provision would provide that after the re­
quirements for bailout contained in subsections A through F have 
been met: 

To assist the court in determining whether to issue a declara­
tory judgment under this subsection, the plaintiff shall pre­
sent evidence of minority participation, including evidence 
of the levels of minority group registration and voting, 
changes in such levels over time, and disparities between 
minority-group and non-minority group participation. 

In addition, a political subdivision seeking bailout must show that it, 
and "all governmental units within its tern tory" had not engaged in 
violations of the Constitution or of federal or state law relating to 
voting. 'Dhis requirement could be waived if it is established that any 
such violations "were trivial, were promptly corrected, and were not 
repeated." 

Any effort to bailout under the new provision, or to achieve a "pro­
posed settlement" of a voting rights action must be publicized "in the 
media serving such State or political subdivision and in appropriate 
U.S. post offices." In addition, "at any stage" in the bailout proceeding, 
an aggrieved party may intervene. 
If the preceding requirements are met by a political subdivision, 

it can· bailout from the special provisions of the Act. The political sub­
division would then be subjected to a "parole" period for 10 years. 
During this period, the court would be required to reopen the declara­
tory judgment suit in which bailout was granted, if a motion is made 
by the Attorney General "or any aggrieved person" which alleges that 
misconduct has occurred during the parole period which would have 
precluded the jurisdiction's bailout if it had occurred prior to the date 
of the court's authorization of the jurisdiction to do so. No standard 
of proof is required to accompany such an allegation of misconduct. 

CHANGIXG THE RuLES OF THE GAME 

A care£~1 review of the foregoing reveals 11 jurisdictional require­
ments which must be satisfied in order for a political subdivision to 
bailout. Most of these criteria have not been required for bailout in 
t~e past. As s~ch, the legislation establishes an entirely new mecha­
n~SJ?-l.to determme bailout, based upon criteria for which political sub­
diVISIOns have never been held accountable ·and for which there has 
been no previously ~eveloped system for determining their compliance. 



66 

In reporting this legislation, the full Committee has given its en­
dorsement to "changing the rules in the middle of the game." ·while 
this is unfair to the few states which have sought to bailout since 
1965,. it is not new in the annals of voting rights legislation. Congress 
has freely changed the "rules of the game" each time it has considered 
the Voting Rights Act. In each instance the result has been the same; 
states and political subdivisions covered by the special provisions have 
been precluded from bailing out. H.R. 3112, as reported by the full 
Committee, would also accomplish this. Not only would the result of 
this legislation be objectionable, but a review of the bill, also reveals 
that it is superficial, poorly conceived and rampant with technical 
ambiguities. Regardless of one's philosophical views on the specific 
issues which any voting rights legislation must address, H.R. 3112 is 
th~ unacceptable product of careless thinking and sloppy draftsman­
ship. 

''ALL OR N" OTHING" BAILOUT 

The legislation reported by the full Committee would · establish an 
"all or nothing" approach to bailout. In order to bailout, a State must 
show that it and all political subdivisions within its boundaries have 
satisfied the requirements for bailout. The failure of any political sub­
division within a State to meet any requirement, would preclude a 
State from bailing out. Linking the bailout of a State government to 
the conduct of all political subdivisions within its boundaries is unrea­
sonable. Isolated instances of discrimination should not preclude a 
State government from seeking bailout on behalf of itself, and the 
political subdivisions within its boundaries which have complied with 
the Act. The failure to permit such a "partial" State bailout, would 
require every political subdivision within a State to file separately 
for bailout. The effect of this would be to impede the bailout process 
while greatly multiplying the legal and administrative costs of the 
entire process. 

BuRDENSOM}~ VENUE 

Under H.R. 3112, as well as under current law, the District Court 
for the District of Columbia has sole jurisdiction to hear declaratory 
judgment suits for granting bailout. The jurisdiction of the District 
Court for the District of Columbia over this ma-tter is judicially and 
practically illogical. Judges on the Court are removed from the unique 
circumstances which shape the electoral affairs of a locality therefore 
making it difficult to ascertain the true facts in the case. Usurping this 
rwthoritv from local Federal Courts, which are more appropriately 
located for a determination of the true facts, indicates a lack of faith 
in our Federal judicial system and is insulting to the judges who serve 
it. In addition, maintaining the jurisdiction of the District Court for 
the District of Columbia over bailout imposes unnecessary costs upon 
a locality seekinP.: to bailout. These costs include: the expense for rep­
resentatives of the political subdivision to travel to Washington; the 
p,xpense of hiring a Washington lawyer familiar with litigating cases 
in the District of Columbia; as well as, the expense and impracticality 
of bringing witnPsses from the locality to testify in the suit. For the 
small locality seeking to bailout. these expenses could be prohibitive 
to its successful completion of a bailout suit. In contrast, the F ederal 
g-overnrn~>nt brings to these cases a tremendous advantage which can 



B7 

only be overcome by great expense. These problems could be lessened 
by establishing the jurisdiction of the Federal District Courts which 
are in proximity to the States and political subdivisions covered by 
the special provisions of the Act, to hear declaratory judgment suits. 

The "all or nothing" approach to bailout followed by H.R. 3112 
would make the establishment of jurisdiction by "local" Federal Dis­
trict Courts all the more necessary to assure that the bailout process 
was experlitionsly conducted. Because the "all or nothing" approach 
would result in many · political subdivisions within a State seeking 
bailout independently, a •large number of bailout snits would be 
brought and would surpass the .~apability of a single court to hear 
them in a reasonable period of time. The consequent backlog of bail­
out suits would place an unnecessary burden on a single court while 
impeding the process whereby a political subdivision may bailout by 
making it 'Yait indefinitely for its day in court. · 

For all these reasons I will introduce or support an amendmentto 
H.R. 3112 which would establish t.he jurisdiction of three judge Fed­
eral District Courts in localities covered by the special provisions of 
the Act to hear declaratory judgment suits for the granting of bailout. 

TnE FrxAL JuoGMEXT PROBLEM 

Under the current law, in order to bailout, a State or political sub­
division must show that no final judgment has been entered against 
it, in which it was found to have denied or abridged the right to vote. 
Sub~ection B of the proposed bailout provision retains this require­
ment but expands the definition of final iudgment to inolude consent 
decrees, settlements, or agreements resulting in "any abandonment of 
voting practice challenged on such ground." 

Several problems are created by expanding the definition of final 
judgment in the manner done in H.R. 3112. For example, the mean­
ings of the words "agreement" and "settlement" are not clear. Are we 
to assume this refers to an "agreement" or "settlement" reached be­
tween litigants in a judicial action~ Or does it mean the "settlement" 
of any citizen's objection, for example, the objection to the location 
of entrances to a particular polling place~ Likewise the bill fails to 
make clear whether any allegation, regardless of its merits in a court 
of law, would constitute a "challenp;e" under this provision. The sub­
section is drafted so broadly that State and local jurisdictions would 
be unable to dete~mine the effects of any voluntary actions they wish 
to take. As a consequence of these shortcomings, this requirement 
would discourage public officials from resolving disputed voting prac­
tices or procedures through voluntarv informal conciliation. There 
would be no advantage for them to do so, if in the future such an 
agreement prevented the bailout of the politieal subdivision they 
serve. As such. this rPfluirement wonld increase the likelihood that 
litigation would be used to reconcile disputes over voting practices and 
procedures which would otherwise be resolved out of court. 

As a final provision, Subsection B would prohibit the granting of 
bailout "during the pendency of an action alleging such denials or 
abridgements of the right to vote." This proviso is both unreasonable 
n.nd impractical. The current fi.linQ" fee for a complaint in a civil ac­
tion in the District Court for the District of Columbia is $10. Such a 



68 

fee would not deter any person or group from filing a groundless 
civil action which would prevent bailout during the litigation of the 
action (often 4 to 5 years) when no other concrete evidence suggested 
wrong-doing. The proviso would also presumably extend to the pend­
ency of any appeals filed (whether meritorious or non-meritorious) 
and this would prohibit bailout for several morP years. 

SECTION 5 MISUNDERSTOOD 

Subsections D and E would establish three criteria for bailout based 
on compliance by a political subdivision with the preclearance require­
ments of Section 5. These three requirements reveal a misunderstanding 
of both the purpose and effect of Section 5. For example, under Sub­
section D a political subdivision must show that it has "repealed all 
changes" to which the Attorney General has interposed an objection. 
Section 5 requires political subdivisions to obtain the Attorney Gen­
eral's approval of a change in any voting practice or procedure before 
the change can be implemented. If the Attorney General objects to a 
proposed change in a voting practice or procedure, the change cannot 
be implemented. How can a change be repealed if the Attorney General 
interposed an objection to it and therefore blocked its implementation? 

Objections interposed by the Attorney General under Section 5 pro · 
vide little information useful for determining the need for a political 
subdivision to be covered by the special provisions of the Act. Objec­
tions can be interposed for a variety of reasons, including : the failure 
of the submitting political subdivision to provide sufficient informa­
tion about the proposed change to the Attorney General; as well as, 
the determination by the Attorney General that the change would have 
an unfavorable impact upon the political interests of minority group 
citizens if it were implemented. Objections interposed under Section 5 
do not indicate improper conduct, impure motives, or failure to comply 
with the Voting Rights Act. For example, in many instances following 
an objection to a proposed change in voting practices or procedures, a 
political subdivision resubmits a revised plan which is approved by 
the Attorney General and subsequently implemented. Preventing the 
bailout of a political subdivision because an objection was initially 
interposed fails to account for the political subdivision's affirmative 
effort to develop an acceptable plan which the Attorney General ap­
proved and under which it is currently conducting politics. By creat­
ing the risk that bailout would be prevented if a change submitted 
under Section 5 was objected to, a political subdivision would be dis­
couraged from making needed changes in its electoral systems. It is 
ironic that the Committee would first predicate the need for this bail­
out provision on the contention that discriminatory voting laws still 
exist but yet would create such a disincentive for public officials to 
change them. 

Under the provisions of Subsection E alone, Alabama, Arizona, 
Georgia, Louisiana, Mississippi, South Carolina. Texas, and Virginia 
would be precluded from bailing out until1990. While the sponsors of 
this legislation might contend that other political subdivisions would 
be similarly precluded, only six counties covered by the special provi­
sions outside of the Southern and border States (located in California, 
New York, and South Dakota would) be similarly affected by this 



69 

requirement. A most recent example of this, involves the City of New 
York. The Attorney General's objection to the City's reapportionment 
plans, on the grounds that the City failed to provide adequate informa­
tion for determining if the reapportionment of its voting districts was 
discriminatory, would consequently prevent New York City's bailout 
until 1991. No objections have ever been interposed by the Attorney 
General against any of the political subdivisions which are covered by 
the special provisions but are located in states outside of the south. 
The rubsence of objections to submissions made under Section 5 by these 
political subdivisions does not indicate their compliance with the Act. 
Rather, as the General Accounting Office reported in 1978, it reflects 
the regional bias against the southern states in the enforcement of Sec­
tion 5 by the Department of Justice. It is unfair to determine eligibility 
to bailout by using statistics which do not reflect actual compliance 
with Section 5, but only reflect the enforcement priorities of the 
Department of Justice. · 

~EANINGLESS SAFEGUARDS 

Sub-:...,ection F is intended to establish as a precondition to bailout, the 
requirement that a political subdivision show that it had made aflinna­
tive efforts to promote the political participation of minority group 
citizens. An examination of the subsection reveals it is based on a 
superficial understanding of the statutory provisions of the Voting 
Rights Act and would not establish any sa-feguard of minority voting 
rights which does not currently exist. The subsection would make bail­
out contingent upon the elimination of acts which are explicitly pro­
hibited under the Act, and the performance of other acts, which if not 
performed would constitute a violation under the Act. The subsection 
is therefore a statement of the obvious; in order to bailout a political 
subdivision must have complied witlrthe Act. 

In addition to being conceptually shallow, the language of the 
subsection exemplifies the technical problems throughout the bailout 
provision. For example, under paragraph (i) a State or political sub­
division must show that it has "eliminated voting procedures and 
methods of election which inhibit or dilute equal access to the electoral 
process." The registration of voters, the tabulation of ballots, the 
redrawing of district lines, and the conduct of at-large elections are 
"voting procedures and methods of election" which are fundamental 
features of the American political system. The fact that such practices 
may be used insidiously and to the detriment of the political interests 
of minority group citizens is not cause to eliminate the practices, but 
rather, to change the practices so that they are implemented in con-
fonnance with the law. · 

A similar technical inaccuracy exists in the nhrase "inhibit or dilute 
equal access to the electoral process." A qualified Yoter obtains access 
to t.he electoral process by registering to Yote. The aet of registering , 
and therefore gaining aceess to the political procesc;, is not an act 
which can be "inhibited or diluted." It is either successfully performE>d 
or improperly denied. "Inhibit or dilute~' are terms which modify 
the effect that a voting practice or procedme may have on the votine; 
strength nf members of the electorate. If the use of t.he terms "inhibit 
or dilnt.e" is intended to make this referE>ncc. a political snbdi.visio-' 
would have to show that it had statistically maximized the politieal 



70 

prospects of minority group citizens in order to bailout. Such a require­
ment would lead dangerously towards establishing a legislative prece­
dent requiring that special groups within the national electorate be 
represented in proportion to their numbers . 
. Secti<.>n ~ of the bailout provision is ~n ambiguously construed sec­

bon whiCh rs a "catch-all" for other reqmrements for bailout that could 
not be concisely written into the legislation. Though the section re­
quires that "evidence of minority participation" be presented for 
assisting the Court in making its determination to grant bailout, the 
section fails to define the amount of evidence "-hich is required. the 
bounds by which statistical measures of "participation" are determined 
to be "good" and "bad", or the manner in which the Court should use 
t.he information to "assist" in its determination of \~thether to grant 
bailout. Like the provisions which preceded it, Section 2 establishes 
a requirement for bailout which could be subjected to numerous inter­
pretations and therefore would not provide reliable guidelines to assist 
political officials to formulate policies whieh eomplv with the Act and 
contribute to promoting the political interests · of minority group 
citizens. 

BAILO'GT : A HrsToRIC CoxcEssrox 

While I recognize that such extensive criticism in a dissf.'nting vimY 
is unusual, I think it is important to focus on the bailout provision 
proposed in H.R. 3112. Though an examination of the provision indi­
cates that its sponsors did not formulate the bill with a genuine interest 
in establishing realistic and fnnctional legislation, the bailout provi­
sion contained in H.R. ~112 is a significant sten in the legislative 
history of the Voting Rights Act. It is noteworthy because it represents 
a concession by the advocates of H.R. ~112 that the great progress 
whiC'h has been made since 1965 to promote the Doli.tica] inte.re"lts of 
minority group citizens could justify the removal of the special pro­
visions as a mechanism to protect the right to yote in some politi;:al 
subdivisions. Nonetheless. the failure of the .Tndiciary Committf'e to 
execute its responsibility to carefully examine all the re.quirements con­
tairv•cl in the bailout provision compels the ful l House to do that ·which 
the Committee failed to do. It is my presePt intention to introduce 
or support separate amendments to Pearlv all of the indi vicb1al con­
ilitioT'S for bailout contained in H .R. 3112 with the hope that the 
Honse can advance legislation with a meaningful bailont provision. 

THE RESULTS TEST 

Though the Judiciary Committee focused primarily on developing 
legislation which would assure that southern states remain covered 
hy the special provisions of the Act. it also undertook to define a stand­
ard to judge discrimination in voting rights litigation. The Supreme 
Court's decision in Mobile v. Bolden (1980) raised the issue of ·what 
is the appropriate standard by which to judge discrimination in :roting 
rights litigation: the showing of purposefu~ intent or the showmg of 
imbalanced or discriminatory effects. The mtent test defined by the 
Court is a stringent standar:d which requires that "a smoking 'gun" 
must be shown to successfully Drove voting discrimination. The effects 
test requires showing that the electoral laws or votinq: practices used by 
a political subdivision results in minority group citizens having un-



71 

equal access to the political process. The intent test and the effects test 
are opposites of one another and choosing between them is problematic. 
Intent is. very difficult to prove, effects do not necessarily demonstrate 
discriminatory actions. . 

The Judiciary Committee has endeavored to reconcile this polemic 
by legislatively establishing a "results test" by which to judge dis­
crimination. This initiative should have been undertaken only after a 
comprehensive examination had been made to determine the ramifica­
tions that such a standard would have for the c.onduct of politics by 
States, cities, and other political subdivisions. Instead the Committee 
<level oped this standard in the same careless and hasty fashion by 
which the final bailout provision was conceived and drafted. Out of 
the seven weeks of hearings conducted by the Subcommittee only one 
day was devoted to this issue. On that day, three witnesses presented 
arguments and information to support the adoption of the "effects" 
test. This brief and one-sided consideration of the issue is inadequate in 
order to review the questions which are raised by this action concern­
ing proportional representation, one man-one vote, and rules for 
redistricting. 

The "results test," contained in the legislation reported by the Judi­
ciary Committee, would be established by an amendment to Section 2 
of the Voting Rights Act. Section 201 of I-I.R. 3112 amends section 2 
by striking out "to deny or abridge," where it appears, and inserting in 
lieu thereof, "in a manner which results in a denial or abridgement of." 
If amended in this fashion Section 2 would read as follows: 

No voting qualification or prerequisite to voting, or stand­
ard, practice or procedure shall be imposed or applied by any 
State or political subdivision in a manner which results in a 
denial or abridgement of the right of any citizen of the 
United States to vote on account of race or color, or in con­
travention of the guarantee set forth in Section 4(f) (2) of 
this Act. 

The effect of this amendment would be substantial. For example, 
let's assume that a city council in a northern state was required by law 
to establish new voting districts for city council elections. Section 2, 
as amended, would require that as a result of the creation of those new 
districts the right of no minority citizen should be abridged. Let's 
assume that at present there are no majority Black Yoting districts in 
the city. Let's further assume that the city council, following natural 
geographic boundaries creates one voting district which is comprised 
of 70 percent Black and 30 percent "White voters. Adjacent to this 
newly created majority Black district the city council creates a 35 per­
cent Black and 55 percent ·white district, again following natural geo­
graphic boundaries. In this example, let's finally assume that the city 
council has no discriminatory intent or purpose and that the effects of 
their actions will be to increase the prospects of electing a Black city 
council member. Following this redistricting, a suit is filed by plain­
tiffs alleging a violation of amended Section 2. At trial experts using 
a computer-assisted analysis show that the city council could have 
rlrawn voting district lines which \Yould have created two 51 percent 
Black and 49 percent White districts. A court applying the amended 
Section 2 might well, therefore. conclude that the effect of the new 
plan is to abridge the voting rights of Black citizens living in the 



72 

newly created 65 percent White and 35 percent Black district. One 
practical effect of the amended language proposed in H.R. 3112 would, 
thus, be to require State and local governments to study the effects 
of all proposed voting procedures and adopt only those which maxi­
mize statistically the voting impact of minority citizens. Ultimately, 
this logic could lead to non-continuous voting district boundaries, 
crazy quilt annexation patterns and the like. Such a required affirma­
tive manipulation of voting procedures is a far cry from the original 
purpose of the Voting Rights Act. It is unlikely that any local political 
subdivision in urban or suburban America could successfully defend 
itself from suits under the amended Section 2 standard. 

In considering the proper standard for judg-ing voting discrimina­
tion the Congress must re-examine the intent of the Fifteenth Amend­
ment. In the Mobile decision, Justice Stewart stated, "The Fifteenth 
Amendment does not entail the right to have ... candidates elected 
but prohibits only purposefully discriminatory denial or abridgement 
by government of the freedom to vote." The "results" test proposed 
by the full Committee circumvents this interpretation of the Fif­
teenth Amendment and the Supreme Court's decision in Mobile. The 
"results" test is not a test of fair political conduct or the "freedom to 
vote," but a test of affirmative impact on the political interests of se­
lected groups within the national electorate. The "results" test would 
impose strict liability on public officials for the adverse consequences 
of their actions regardless of the foreseeability of those consequences. 
As snch, the results test does not provide incentives for responsible 
decision-making, but instead, discourages public officials from making 
any decisions which would alter the status quo. 

THE REASONABLY FORESEEABLE EFFECTS TEST 

An alternative to the unfettered "results" test as reported by the 
full Committere would be a test based upon "reasonably foreseeable 
effect..s." This standard, is a test of "intent" long followed tby Common 
Law in civil litigation. It is based upon the assumption that decisions 
on voting changes are made by reasonably prudent individuals who 
intend the reasonably foreseeable effects of their actions, for which 
they should be held responsible. For example, a person who pushes a 
door intends and expects the door to open. Based upon this expectation 
the person must exercise caution in opening the door so as not to hit 
and harm a person on the other side of the door. Opening the door 
hurriedly represents neglect of this foreseeable consequence for which 
the person is then responsible. Following this approach, the city coun­
cil in the earlier example, which according to the "results" test was 
found to have violated the Act, 'vould not be culpable. Rather, the city 
council would be presumed to have intended the reasonwbly foresee­
able effects of their proposed actions, i.e., an actual inc.rease in minor­
ity voter participation. 

By imputing to public officials the intent to have those results which 
are reasonably forseeable, they are encouraged to be informed and to 
make responsible decisions. Accordingly I will introduce an amend­
ment to incorporate the reasonablv foreseefl ble effects standard into 
bot h. Section 2 and Section 5 of the Voting Rights Act. therefore est<tb­
lishin.g a sin~Yl e standard thron,ghout the Act for judging voting dis­
crimination. This action would substantially enhance the right of pri-



73 

vate ci·tizens to enforce the voting guarantees of the Fourteenth and 
Fifteenth Amendments, while establishing enforceable guidelines to 
ensure the proper conduct of public officials. 

A NEW APPROACH 

I would have preferred for too Judiciary Committee to have taken 
a new approach to voting rights legislation; an approach based on 
fairness, incentives for positive change, and safeguards to prevent 
future abuses. The inadequacies of H.R. 3112, as reported by the full 
Committee are evident from the preceding discussion. In addition, the 
piecemeal approach followed bv the Congress in the 1970 and 1975 
amem.dments to the Act has produced separ:ate and inconsistent provi­
sions for · racial minority and language minority discrimina,tion, dis­
jointed statements of unlawful action, endleE:s cross-referencing-in 
effect a legal maze. The legislation reported by the full Committee 
would merely exacerbate this problem. Accordingly, it is my intention 
to introduce a new approach to protect the voting rights of minority 
group citizens; an approach which will improve the clarity, oonsist­
enC'v. anJ enforceability of the Voting Rights Act. 

The legislation which I would propose would retain the pre- _ 
clearance provisions of the Voting Rights Act while updating and 
rationalizing its "trig.gering mechanism." Under this legislation, any 
state or locality would be automatically covered by the special provi­
sions if a court had entered a final judgment on or after November 1, 
1976, establishing that the jurisdiction violated the voting guarantees 
of the Fourteenth or Fifteenth Amendments of the Act. Such a state 
or locality would be automatically covered by the preclearance require­
ments of the Act for a period of from seven to ten years (as determined 
by a court) from the date the final judgment was entered. For example, 
in 1978 the Board of Commissioners of the City of Sheffield, Alabama 
was found to have violated Section 5 of the Voting Rights Act. TTniler 
the proposed legislation, the City of Sheffield would be automatically 
covered by the special provisions of the Act at least until 1985. Ex­
amples of other jurisdictions which would also be covered are Thruston 
County, Nebraska. Colleton County, South Carolina, and Fall River 
County, South Dakota. While the number of jurisdictions automati­
cally covered by preclearance under this le~islation is hein~ studied, it 
is clear that a substantial number of iurisdictions in the South and in 
other regions of the country would be ·covered by the special provisions 
beyond 1982. 

After 1982, any state or locality found bv a court to have violated 
the voting guarantees of the Fourteenth or Fifteenth Amendments, or 
this Act, would be made subject to the preclearance requirements of 
the Act for a period of from five to ten years. Such a judicial deter­
mination of "wrong~doing" would replace the current outdated trig­
gering mechanisms, which are based on low voter participation in past 
presidential elections ( 1964, 1968 and 1972). This proposal eliminates 
the concept of "bailout" by establishing specific periods for which 
Federal preclearance of voting changes would be required. Preclear­
ance would not be extended indefinitely, hut would expire automati­
cally at the end of the period established by the courts, unless a new 
violation has been judicially determi~ed to have .occurred. · 

These changes in the current law w1ll substantially reduce the num-



74 

her of jurisdictions subject to the preclearan~e requirements and cor­
respondingly reduce the "preclearance workload" of the Department 
of Justice. The effect of reallocating these "freed" resources to voting 
rights litigation will be to strengthen and expand the Federal role in 
securing compliance with the basic voting guarantees of the Act. 

Finally, this legislation would reorganize the Voting Rights Act, to 
consolidate and streamline the statute. All actions prohibited by the 
Act, e.g. , use of a poll tax, use of literacy tests, failure to accurately 
tabulate a person's ballot, are incorporated into a single section rather 
than scattered throughout the statute. Likewise the proposed amend­
ments change the device for requiring bilingual ballots from the rate 
of illiteracy to comparative rates of voter participation, while main­
taining other substantive provisions in full. The effect of these changes 
would be to clarify and make more concise the meaning of the Act and 
to ultimately to enhance its effectiveness and enforceability. 

CoNcLUSION 

The Voting Rights Act of 1965 has been fundamental to protecting 
the right to vote of racial and language minority group citizens. In the 
past sixteen years, both increased participation at the polls and success 
in pursuing public office has created pressure from minority group 
citizens to force the politics of the "old South" to change. Candidates 
for elected office cannot neglect the voting strength of minority group 
voters if they wish to hold public office. Oncejn office, public officials 
cannot neglect the concerns of minority group citizens without jeopard­
izing their prospects for re-election. While pockets of discrimination 
may still exist, voting discrimination is not the widespread problem it 
was in 1965 when conditions justified an extraordinary exercise of 
federal authority to protect voting rights. The same creativity and 
resourcefulness which was employed in 1965 to develop the Voting 
Rights Act must be used today to develop new legislation. 

Section 2 of the Fifteenth Amendment states that, "the Congress 
shall have power to enforce this article by appropriate legislation." 
"Appropriate legislation" is that legislation which is a precise response 
to the current and future need for a federal role to protect voting 
rig-hts. The full Committee failed in its responsibility to report "appro­
priate" legislation to the House of Representatives. It is inexcusable 
that reporting legislation to the House before the August recess took 
precedence to developing thoughtful and accurate legislation. It is 
ironic that the members of the Committee who have advocated a 
"strong" Voting Rights Act would report legislation which is so con­
ceptually and technically flawed. Such legislation benefits no one, and 
would only add unnecessary costs and confusion to the enforcement of 
the Act. 

There are numerous alternatives to the legislation reported by the 
full Committee. I intend to introduce or support legislation which 
remedies the conceptual and technicftl inadequacies of the legislation 
report.Pd bv the full Committee, and which initiates a new approach 
for Fedf'ml protection of the rio:ht to vote. By passing legislation which 
fl>Ceomplishes thE:\'ie obiective,s the House would help to insure that the 
Fifteenth Amendment will be enforced by "appropriate" legislation in 
the 1980's and bevond. 

M. CALDWELL BuTLER. 






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