Legal Research on Congressional Record S6959

     
     
     

 

   

   
   
  

  
 
 
    
   

 

   
 
   

    

  
   
  
  
 
 
 
 
  
  
   
  
 
  

   

RESSI‘QI‘LALBECORD — SENATE °¢ We)

     
   
 
 
 
  
    

   
  
   
  
   
   
   
 
  

 

? June 17, 1.982 C
r we might , edit 0 ~ “Ir-I’m was required to mak
.' - abmmmfigéen. rs intothemo “9 ‘J-
: ‘1‘! section trfwould be willing to 1:, . - mlne—tf‘ the system was devised '
a ‘ u. the yous-an v ' u ---.-_‘ t we maintained for a discriminatory - .
‘ ‘ - / . ose. In order to comply with B oe
1. int. - e district court was forced -
i eat c eate events shedding light n
, Um. mtlvntion of politicians w -~
I ' ex- of e during the several cru ,‘ pe .
- i It ‘8 ods under investigation betw, _n 13!:
1 " e very and he present.
L. 7" " S-- no. as 'Dr. Arthur mm .3
_ pose it the .tinguished former C11,: .311 .’.
l" ' ' (‘th the ited States Commiss on Cit
t ‘ Rights and the distingu ' formi
c .g. Hon 2 as Secre . 1 of new. told in; Subco
1, DrODOS/J “56 t0 the mlttee . the Constlt on. “such 1,
y. Cam‘s-ll, 2 - me Court, quiries u der the inte t t-.~v can onl
1 2d ' . "‘3“ 0 In that be divi iv , threatenig to estroy - -
a case I b'—' ‘ ' ‘ "ajority exist“ : ial pro 53 in I x'comm
s 1 of to i or believe my ' ’ *
y .~ -. . ‘ red in inter- Thiri.) th inten test Laces an
t t,' o - . ‘ accep le -urde on laintiffs g
.1. I -. V" ‘ 0f the voting hiscr'u'nat. on c ’3. It treat
Cw -' . ’gr ‘ 01195 who the risk that lectoral s stems will - *
~ are at f .‘ " 'ng eXDFESSEd free [r m cha . n'ge eve where the- >
> the “737- : g a any that
f '1' C0u1'- a po 31' o t . - I. - rmisinter-
,. ;, preted. an Rafi - ‘ Jig; hat' -a.re
d 1' doing he : ' ’ { 1'
a. ;‘ We. Hafiz 1‘ .t' elawasit
2-, ; was clearly 3‘3 5 'r” and as it had
9- :1 been lnterpr- { gt y. - and again in the
‘h‘ , ' days he T§1 ‘ ’15; SUDT‘" 53°11“ wuncil m rnbers - . constitutio _,
if; :3 hande ... - 143;. decislo 11: City of In an exh native éion. the dist
i; , rr- Mob' ' w; --, ‘ court mit :uny led the White
,5 SO I ' ' ".1 ‘ at assertion will against Re ester n: ts test and con-
;ej" ;_ 7 so a , ' a .4", ml ans! , - the eluded that lacks L ly did not have
1 0011' cm by the tutor a fair Chan e to ’-. icimte in the
ff " f... orth ' H‘- i: whic activated, system. The \lrt laid: !
' ‘1'. mm t0 0‘ ,5"; 4'8- ' "ent- “Black pal-tic .. ‘ in In: field
W '3 Befo I 3191.. Case, pl: ' ’3 hubeenrnerei mm It deventhls
it could a "-1‘ z‘ 0 aainwlngfih: It chal- beenonnverys- . L». e. "
u: 191‘ng 81" 'I'J 8‘ P" “‘ “‘8' m the Despite e . 'rwhelm .- evid- ...'.
5d a; context of, "Zia.” .; - .5 es of oLJmequ 7’1”.“ 7m" , Hel— _
if“ ‘ " “‘3' Mifiifi$'\' ‘ " ‘i' ' ‘ the system. the/ t ct court's dete . u. -
-d . result}! "3 ',.'- '-.' i '1' 1mm tion could/u twi and th impact -
it. "y'- : 11-81 Chm ‘0 theBold'yndecisl.
. .4 ‘ mthe 618910”! Mr. ‘H'MO -. Mr. d
‘2: , “8, ‘~ it “8 will the ator yie .9
lit. to” -thatthe . .. : ,Y-.,Iam app!
.5- or procedure yield. I , l
-edforadls- ML?- '0ND.I -mindeSe-
' intfiflt— In ator --.lieve that. was he :1 . eta-J
"1 the Supreme» oft Judgewhohadre 1. ' - himself.
e eat and sub— ! MATHIAS. As I sa. that case.
ed- ha burden on co 4‘ not Withstand the kn 2- (if the
.. u! of dis-- d- [.1013 offlagcom in Le Em ..
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‘ weaken, 'alter and change it in a very'

mm laws. it would be extranely dimeult to

\ recent experience with labinttve ration-let-

. in the Novel-tier: to! their: in the game's;
‘- W.m North-Caroline udWehe
wince. mat; the Voting ultimatum“
ulmhhhalbdnl’ '

‘ ‘ rut-flmnfié'mx;
SW—

the strongest in terms of its nation-
wide application is section 2. and I am
sure during the debate and discussion
we have heard today there have been
statements that this Voting Rights
Act does not have nationwide applica-
tion. Well. section 2 is nationwide in
its application, and it is. as in the
measure before us. a meaningful provi-
sion. and the amendment of the Sena-

tor” from North Carolina.~ would

significant way. '
Q i will take a few moments here. Mr.
President. to read an editorial which
appeared in the Raleigh News and 0b-
server of North Carolina. on May 2.
1982. I find this editorial. which was
written 6 or 8 weeks ago. reassuring
because it is exactly responsive to the
principal arguments that have been
raised by the Senator from North
Carolina. I will take just a. moment to
reed it:

In truth. there should be no controversy
surrounding the Voting Rights Act. It is.
after all. a law that rmbodies a fundamental
tenet of American democracy. And it is an

example oi a federal law that has actually

worked well.

The Senate J udiciery Committee. 01
which East is a member. has before it legis-
iation. identical to a bill passed by the
Excuse. that would extend the voting not for
10 years. The legislation contains a crucial
new on» [sign that a violation occurs when 3'
ante of local election system “results" in
discrimination against buck; or Hispanics.

This provision is needed as a result of the
Supreme Court ruling. in a Mobile, ALL,
case. the court ruled that challengers to an
election system had to prove an "intent" to
keep blacks and other minorities from win. '
ninz oiiice. if every Voting Rights Act case
entailed delving into the "intent" of olil-V
this who adopted a particular locale's elec-

enforce the law. The leadership Conference
on Civil Rights points out that it took more
than 6.000 hours of lawyers' time and 4,000
hours of the time 01 witnesses and parale-
gal: to make the case that Mobile oiiiclals
intended to discriminate when they adopted
an st-larze city election system.

East copeses the provision that requires
only prool that an election system in effect
d'seriminates. Pointing to North Carolina's

ing. the Senator anne- that the law is
movinxtornrd guaranteeing black; “proper
Lion-l. normentatzon"

But-erects a. straw man. Prior to the,

‘ Mobile ruling. no Voting Rights Act ruling

required proportional representation as a.
remedy. The North Quantum and ~
Senate redistricting Dims do not mice
the: black: will be electedto the 1111st "

   
    
 
 
 
   

  
 
 

   
  
 
 
  

   
 

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CONGRESSIONAL RECORD - SENATE

of an effective Voting Rights Act spurn the
legacy of the first Republican president.
Abraham Lincoln.

Mr. President. the compromise re-
ferred to in the editorial is exactly the
measure which is before the Senate at
the present time.

I could take more time. Mr. Presi-
dent. I do not think it is needed. I
think the best answers—I know the
Senator from North Carolina has
made the argument many times-are.
printed in the report beginning at the
'bottom’of page 15. "amendments to
section 2 of the Voting Rights Act."
and which very closely track that edi-
torial. That editorial was written 8
weeks ago. but. I think. it is absolutely
responsive to the proposal of the
amendment of the Senator from
North Carolina. and I think we are
prepared to vote. 4

Mr. EAST addressed the Chair.

The PRESIDING OFFICER. The
Senator from North Carolina.

Mr. EAST. Mr. President. I would
like to respond briefly to the com~
ments made by the Senators from
Maryland and Massachusetts. I have
already communicated to the Senator
from Maryland my desire. in offering
my amendments. to state my case as
quickly as I can and let others com.
ment as they desire. as briefly or as
fully as they wish.

I would like to respond. very quickly
to what they might say, and then I am
prepared to move to a vote.

Let me address. first of all. Senator
Kmmr’s comment. I would hope he
could offer more substantive discus-
sion than simply quoting from editori-
als of the Raleigh News and Observer.
If we are going to have a battle of edi-
torials. I will quote from a newspaper

. with a little greater national—prestige."
the Wall Street Journal. This is what
it has to say:

The new bill would further embroil the
courts in local elections across the country
and would give citizens less of a voice in de~
ciding on the type of government that they
want to run their local affairs.

It goes on to say: _

The “compromtse’flfurther muddiee the.

‘ waters. with legalistic Jargon such as a "to-
tality of circumstances rather than making
effects the sole test. The point of the exerH‘
ciseistowriteabillthatmeansallthingstor
all parties. But since. the bill gives oontndic-;
wry instructions. it means nothing at all. 7::

-. ‘The. practical effect of course. will W

, dumpthe hot potato into the hands of the;

'TCQWLOurzmfithat the end result will.

' be a hugel impetus toward proportional rep-_
mm for: minorities. But uncertainty-T »

‘ smut-them willtakea'longfime figure

A. ingontwh’at the legislation menu-and that:
kidsth ' Trashy-flunk cloud?

if . , .. .mded- Ne" Y9." and?
which rename! their»: law mugging

“black .-. 4 Wu; enfienchinmmbentsi

nourisymineamaflmne

m - m

 
  
  
 
    
 
  
  
 
 
  
 
    
   

   
 

    
   
 
  

  

  
  
  

  

elm us a voting rights act that will stop the
voters from voting?

So I pit the Wall Street Journal
against the Raleigh News and Observ-
er. and if it is a battle of editorials, I
will take the Wall Street Journal.

Let me return to the remarks made
by the distinguished Senator from
Maryland. He refers to the Bolton
case. and he rather casually notes that
the bill he is supporting overturns the
Supreme Court decision. That is' a
rather unusual position fonthe distin-..
guished Senator from Maryland to be
in. as he is usually careful to caution
us against taking simple legislation
and overturning Supreme Court deci-
sions.

What the Court said in Mobile
against Bolton was—

Mr. KENNEDY. Mr. President. will
the Senator yield?

Mr. EAST. I wish to finish my re-
marks.

Mr. KENNEDY. I thought the Sena-
tor wanted a debate. '

Mr. EAST. I do wish to debate. Sena-
tor, but I wish to be able to complete
my statement so that you can respond
in toto to it. Completing my remarks
will make for a more meaningful and
substantive debate.

In the case of Mobile against Bolton,
the Supreme Court held the 14th and
15th amendments require intent. and
what they were saying was that these
amendments. and particularly the
15th amendment is the pertinent one.
here. guarantee access to registration,
to voting. and to having a vote count-
ed. However. they were saying the -
amendment does not guarantee elec-‘
tion results and effects, and that is
what the distinguished Senators from
Massachusetts and Maryland are argu-
ingrfor; " " ‘ “““ ""““

I agree with the Supreme Court this
time that if you want to amend the
Constitution you do not do it
through—you do not do it indirectly
by—leg'islation running counter to the
spirit and the letter of the 15th
amendment as articulated by the US.

. Supreme Court. 80 I find it somewhat

curious that that would be the posi--
tion of the distinguished Senator from
Maryland.

Finally. putting all that aside. forget,
the constitutional arguments. forget _,
the battle of the editorials. I leave you
with the premise totheh my amendw
ment is directed; .nam
itsalear- that the inter!
apply. the test. which is

teat ahmldfi'
the currents».

ted“ mem that meant oil Womb-Ff? An’ ‘

committee: It. would meabeclearm

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Militias Md Phenomenal-represené .
jiwmm_m.hu 'mt been km: 141:2 tation—T .or mart-imposed election re-v‘v
‘ ' "gr—suits age not-what we wanteTo

.. debate.
W; 97099, be ”Ignaznolicyiu,

   

    

 
 
 
 
 
 
 

 

 

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register-”andivote mat. 'avelthatj', .“vo V39flns .
command itgwoald ' _ hcimrJiimfm

     

we madam-m

June 1?; 1933

sentation. What we want is to have
the vote of every American counted re
gardless of race. I have no quail-re]
with that principle. I do not think
there is one Member of the (13
Senate who would quarrel with it.

So. on that point. I rest my case. Mr.
President, I am happy. unless others
wish to speak on this matter, to more
to a vote. . .

Mr. HELMS. Mr. President. have the
yeas and nays been ordered on the
amendment? ‘ ‘ I ‘ ' ‘

The PRESIDING OFFICER. The
yeas and nays have not been ordered.

Mr. HELMS. Mr. President. I ask for
the yeas and nays.

The PRESIDING OFFICER.
there a sufficient second? There
sufficient second. _

The yeas and nays were ordered.

Mr DOLE. Mr. President. I wish to
speak Just briefly on the amendment.
I want to compliment all those who
have spoken on this amendment. It
seems to me that we can properly
debate these amendments. But as one
who offered. along with others. the
compromise. I think it might be of
some help if the Senator from Kansas
at least indicates what he had in mind
when'offering the compromise.

I Certainly can understand the dif-
ferences of opinion. but I think the
record should clearly reflect the intent
of one of the authors of the compro-
mise. And I will take a minute or two
to do that.

I certainly appreciate the willingness
of the Junior Senator from North
Carolina to let us proceed to vote and
have other amendments. as we should.
and have debate, as we should.

It seems to this Senatortha]? We. had

Is
is a

‘ an obligation't'o make it as clear as we

could that plaintiffs may base a violap
tion of section 2 on a showing of dis-
criminatory “results," in which case
proof of discriminatory intent or pur-
pose would be neither required nor rel-
evant. We should make that clean-And
there was some discussion after the
House-passed bill whether or not that
had been made clear. '

I was convinced. and I tried the best
I could with other matters before us in
other committees to take the cases
home. read the cases, try to under-
stand what the Justices had in mind.
what-theSupreme Court had in mind.

leguamkefiwhat- meaty-officials had in mind.

whetheFit"be~m Alabama or Texas or

wherever. theicaee- may have arisen. .7

I .he‘came; convinced of theinap-Z
peanut-tangle 40% ans_—'-'_int‘ent standard'f- 3
; . mm- “of', establishing, cw..-
claim. as were the malorw-z

And asiundersta‘nd.‘ looking back at:
the. committee action. it' seemed tghthis
Senator. matbecause of the nature of.~
thedineufidm thecommittee with reaw
erotica; 1931M House-med bill; that:
perhaps, mermaid” tservice—to ,-
Q=W$¢¢§RE-W with'somgi,

   

 

   

    

 

   

    
   

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‘ June 17,1982

1 passed bill which was later the Kenne-
dy-Mathias. Mathias-Kennedy bill in-
troduced in the Senate. and intro-
duced with 60 or 70 cosponsors.

So this Senator worked with a
number of Senators, including the
principal sponsors of the bill. the Sen-
ator from Arizona. Senator DECON~
crux. the Senator from Iowa. Senator
GRASSLZY. the Senator from Wyoming.
Senator Smsozv. and. indirectly, the
Senator from Alabama. Senator.
Ham. and others trying to figure out
if we could come up with some lan-
guage that might satisfy the majority
in the committee. Otherwise. there
was some doubt that the bill would be
reported out. And after a number of
efforts. we found. at least in the begin-
ning. some agreement. and after a
number of day's and'number of hours

t of discussion we were able to reach an
agreement.

Obviously. he agreement has been
the compromise that has been re-
ferred to-—-no compromise by some.
compromise by others.

As explained more fully in the com-
mittee report, the basic problem with
the test is that its focus is misplaced.
If a voting practice or structure oper-
ates today to exclude members of a.
minority group from a fair opportuni~
ty to participate in the political proc-
ess. the motives behind the actions of
the officials which took place decades
before. I think. at most, is of very lim
'ited relevance. How are you going to
prove intent? They may have moved.
They might have died. They may no
longer be active in the legislative proc-
ess or where it may have originated in '
the city council.

Further, it places an inordinate

-- binned-of proof on-plaintltfsr-thus'

frustrating vigorous enforcement ef-
forts. It also causes divisivenem be-
cause it inevitably involves charges
that the decisioris of officials were ra-
-cially motiv.ated In short, from both I.
policy and legal standpoint. exclusive
reliance on the test is misguided and
would prevent eradication of the racial
discrimination which. unfortunately,
still exists in the American electoral

process.-
Another big question I have hem

. faced with and that 1 did not may un-'
‘. ' dcrstand and may not yet fully underm
.4. stand. but understand it much better.—

was wratthisSenator had readabout
’Wxfionsl representation; that we
were. in effect, setting up a scheme
whecoby we ,would hare proportional

 

CONGRESSIONAL RECORD — SENATE -

of the “results" test that had to be ac-
companied by language which alleviat-
ed fears that the standard could be in-
terpreted as granting a right of pro-
portional representation.

This is a matter of great concern. I
might add. to the distinguished chair-
man of the committee, Senator T111711-
Moxp. who raised that question with
me dozens of times in private conversa-
tions, and in a period of discussions
with Benjamin Hooks and other. civil
rights leaders in his office for a couple
of hours many weeks ago.

Yet. during the hearings. s unani-
mous consensus—and I would corn-
mend the distinguished subcomnuttee
chairman. Senator HATCH. for the
hours and hours and hours spent in
subcommittee hearings. And a. consen-
sus developed from witnesses on all
sides. among both opponents and pro-

ponents of the results test. That the-

achievednrnnortmmmgresen:
ed that became a matter 0‘!
great importance.

It violates fundamental principles in
this country if we are going to have
proportional representation. it was
generally agreed that the concept of
identifiable groups having a right to
be elected in proportion to their voting
potential was repugnant to the demo-
cratic principles upon which our soci-
ety is based. Now citizens of all races
are intended to have an equal chance
of electing candidates of their choice.
but if they are fairly afforded that op-
portunity. and lose. the law should
offernoredrossAnd Ithinlr thatisa
matter of some importance and some
concern to everyone. And I mist say

that there was that general consensus “’39an I” well- “dbl-“premise

from proponents and opponents alike.
that this should not be the case.

So in an effort to accomplish these
two key objectives—and I want to cer-
tainly thank Shelia Bair- of my staff
,andother members on other Members’
staffs.“ well as members of the lead
ership conference. But to accomplish

these two key objecflres-qnalntalnlng ~

the integrity of the results test while
at the sometime alleviating fears
about proportional representation--
was. actue‘redbydividinzsectianzinm
two new subsections..- ' '
New subsection (A): retained the re-_
sultslansuw‘e of the Ho hill. thus.
mommies: that-C
the intent standard; as the sole means

3:21”th m under see»

It does 1’39th Lyon Mot
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mammoth”: (3) def;

 

S 6961

quently applied in some 23 Federal
courts of appeals decisions.

As expressed in the language of the
subsection, the standard is whether or
not the political processes are equally
"open. " whether there is access,
whether they are open in that mem-
bers of a protected class have the same
opportunity as others to participate in
the pci_tical prcccw an d to elect candi-
dates of their choice. ' '

- Imofireosotdr. the focus of the~-~~ .

Wuhmmqual’
access to t e politicameess..M

whether members of a particular rig-i7
,nority group have achieved propor-

WW»;
would again un erscore as strongly

as I can. in the event the legislative
history is referred to in future court
cases in future disputes about this
matter. that I think it is clear. the
Senator who offered a compromise be-
‘lieves it is clear, that in no way can
this be construed to provide that
remedy that would require proportion-
al representation._

I hope that, despite some of the
statements made in the past few days.
that there really is not much dispute
about that. The language of the sub-
section exclusively rejects. as did
White and its former cases, the notion
that members of a protected class had
a right to be‘eiected in numbers equal

to the proportion of the population. . 7 .

Wenf‘bo
mtected» WWW-elected
sander the challenged practices struc-
sharpie—Just one factoramong the totals

Mot circumstances to be considered-

undais not disposill-ve Thus. by relying
on the plain language of the substitute

which the amendment is designed to
make applicable. the results test

should never be construed. and ! ream- ,
phasize never be construed. by anyone ‘

to require proportional representation.
Such a construction would be patently
inconsistent with the expressed provi-
sion of subsection (b).

Further...the track record of cases
decided under the white standard irre~
futably demonstrates that a right to

proportional representation was never '
deemed to exist under the standard...

and. in fact. was camsteotly dis-
avowed-bytheoourml.,
,Iwautedtotsmhdetmol‘mnity

selects?” the principal murmur-2th: W

ment which. as .1 indicated. is. ccspom
soredby amber of NEW
Edam... were...“

ec-
sham untamed

 

 

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S 6962

now. but any judge or any court or
any student or any writer or any
future Senator looking at the record
should understand clearly the intent
of the Senator from Kansas. if for
some reason it is not made clear.

I understand the Senator from
South Carolina may wish to address
some questions in that area. I would

,be pleased at this time to yield to the-

Senator from South Carolina so we
might further clarify this particular

area.
' ‘THURMOND addressed the

Mr.
Chair.

The PRESIDING OFFICER (Mr.
Gmssm). The Senator from South
Carolina.

Mr. THURMOND. Mr.'President. I
thank the able Senator frOm Kansas. I
want to express my approval of the

statement he just made about prepare.
tional representation. and I thank him”

for making that very clear statement.
that his amendment is not contem-
plated to bring proportional represen-
tation.

In order to further clarify the situa-
tion, I thought I would propound a
few questions.

Do our democratic principles include
the concept that certain groups have a
right to be elected in proportion to
their voting potential?

Mr. DOLE. No; I appreciate being

, able to stress this one more time. The
senator from Kansas indicated in his
earlier statement that such a notion is

' repugnant to’ our democratic princi-
ples. That ought to be clear. It ought
to be underscored. underlined.

That is not the intent and it is not
withimom democratic principles.

Mr. THURMOND. The next ques~
tion: As citizens of all races are afford-

-~-ed anrequal chance of/electing-candi- ,

dates of their choice and those candi-
dates lose. does this bill afford any re-
dress?

Mr. DOLE. No: and it should not. if
the process is open. if there is equal
access. if there are no barriers. direct
'or indirect. thrown up to keep some-
one from voting or having their vote

,, counted, or registering, whatever the,

process may include. Absolutely not.
Mr. THURMOND. The next ques-

1' tion: Is the locus on the section 2 '

. standard on equal access to the politi-
‘ ‘ cal process or is the icons on whether
a . particular minority mun. has
achieved equal election results? - ~
L Mf.DOLE.The mammals

.~ a thank tnSmator for directing the

'Iiknow of no one in this
chain and Ilheardé‘ no ‘
where elsx Indicate} that It should be:

theiwise. Italiouidheonaccemis
peopmiin".

ICG‘NERESSIONAL RECORD — SENATE

reject the notion that members of the
protected class have the right to be
elected in numbers equal to their pro-
portion of the population?

Mr. DOLE. The language in section
2 does clearly reject that notion.
Again. we think the language is explic~
it. It is pialn language. It should not
be subject to some further interpreta-
tion or some different interpretation.
The answer is an emphatic yes.

Mr. THURMOND. My next question
is: Should section 2 be construed to re;
quire proportional representation?

Mr. DOLE. The answer there. as a
followup on the other question. is ab-
solutely not. I again believe that the
record is clear. that the report is clear.
that the hearings are clear. The gener-
al consensus of the proponents is
clear. as I have indicated earlier.

Mr. THURMOND. My last question
is: Do you believe that the new bailout
is in fact achievable by Jurisdictions
subject to the preclearance require-
ments of section 5?

Mr. DOLE. In the opinion of this
Senator. and I know there is some dis-
agreement on the bailout section. sec-

tion 5. which we intend to address

later—and I know there will be amend-
ments to that section—I believe the
bailout is. in fact. achievable. I would
hope that we might reserve further
discussion of that until we get to
amendments on section 5.

Mr. THURMOND. I thank the dis-
tinguished Senator for his answers.

Mr. KENNEDY. If the Senator will
yield for a question, is the Senator fa-
miliar with the letter to the editor
from William Reynolds. the Assistant
Attorney General. on May 31. 1982.
where he points out the Senate com-‘
promise removes entirely the highly
offensive concepts of proportional rep-”
resentation based on race. a concept
that had been in the House version? I’
did not know whether the Senator had
seen that letter. '

Mr. DOLE. I think it would be well
to make that letter a part of the
Recon» at this point. It was a very
clear statement by Mr. Reynolds.

MrrTHC‘RMOND. Mr..President. I
ask unanimous consent that the letter
be printed in the Rncosn at this point. .‘

There being no objection. the letter“
was ordered to be printed in the
Races». as follows: .

[Prom the washinston my 31. mm
.;;1_Ԥ! Vanna Rmnrs A m m.
In his nmvpage article (‘fonith Called
Embanament’ Bot Unlikely to- Looe 311
Jon]? may an. we Cannon comments 0%
thaattomey general? earlier Waco
apropcsedam names:- for Section 2 of the:-
Voting Rightt' Act. adramuidment

  
 

   

 
 
   
  
 
  
 
 

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1; act. Tortjlasv. for example. uses a new
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June 17, 1.982

most serious concerns about House bill Seek
tion 2. Far from “preserviingl all the essen— .
tial features of the liberal version fo the bill
Smith had opposed,” as Mr. Cannon boldly
but mistakenly declares. the senate compro-
mise removes entirely the highly offensive
concept of proportional representation
based on race—a concept that had been in-
cluded in the liberal [Housel version." Of
equal importance. the Senate‘s compromise
shifts the essential focus of Section 2 away
from an emphasis on election results (as in
the "liberal {House} version") and back to a
proper concern for individual rights: i.e.-.
protecting for each citizen the opportunity
of equal access to the electoral process. free
from racial discrimination.

By securing these changes to Section 2 in
the giveand-take of a negotiated compro-
mise. the administration was able to alter
significantly the bill that had been passed
by the Home. To be sure. it did not get the
straight 10-year extension it would have

preferred but neither did it capitulate and
simply accept the “liberal version of the
bill." As with every other major decision
made by the president. the balance struck in
this instance rested on principle. not politl.
cal expediency. Mr. Cannon's suggestion to
the contrary demonstrates another example
of his regrettable lack of understanding of
the subject matter with which he purports
to deal.

The PRESIDING OFFICER. The
Senator from Kansas has the floor.

Mr. DOLE. I yield to the Senator
from North Carolina.

Mr. EAST. I would like to comment
on the points the distinguished Sena.
tor has made. First oi all. his concern
about having to prove intent. I know
he knows, as the distinguished lawyer.
which he is, that intent is the stand-
ard in Anglo-American law. so the
notion of having to prove intent to
show wrongdoing is hardly novel. It is
the norm; it is the standard. What is
the aberration, the mutation. is the
idea of eflectaor results. This stand- ,,
ard is what I find troublesome.

You say. "You know. plaintiffs' law»
yer: have trouble proving intent."
First. I would point out that they have-

been able to meet the standard in civil

rights cases. But naturally, plaintiffs' .
lawyers in any kind of cases. civil or
criminal. will always say. “I wish we~
could change the law so I did not have
to preve very much; then I could win.” -
We do not want to get into special
interest Iedslation- for attorneys. That»
will bring the wrath of the gods down.
on us. We have enough trouble with-‘~
out revising the law for plalntifis' at»
tomcyssotheycangettheresult they] ..

 

The purpose: of intent in Anglo-
Ameneanhwis..that.inordet"tobea.
chargedand found guilty of may»:
ing; yamnmsthave mememal‘stateo?
mind WWW a-particular act: yew
srcnottobeiudged exclusively on the
basi‘s-‘ofthrresuit or effect ofyouc

  

June 147; 1982'

depart from that standard. you ought
to think long and hard about it.

Your second point. the most critical

one at the moment. is on the question
of proportional representation. Look-
ing at your compromise, we find. "Pro-
vided that nothing in this section as-
tablishes a right to have members of
the protected class elected in numbers
equal to their proportion in the popu-
lation." . _ . .
:' ‘ Let us look at this passage carefully.
' < First.- it says there is no right to pro-
portional representation but it does
not preclude proportional representa-
tion as a remedy imposed by a court.
That is my first point.

Second. the only thing it disclaims is
the right oi minorities to be elected in
proportion to their population. But
certainly. the bill could very easily

.promote not only proportional repre-
sentatibn as a remedy. but something
less than strict proportional represen-

.r tation—a quota.

- This is a very cleverly worded provi-
i sion here. It says there is no right to
have members of a protected class
elected in numbers equal to their pro-
portion in, the population: but. you
see. earlier. it says that minorities do
have the right to elect representatives
of their choice: the only way you get
‘i that result is through a quota system
of some kind. We are back to the at-
,‘ .' tirmative action situation. in which
E; quotas rule despite statutory disclaim-

" em.

30. yes. it may just be that we would
not have literal proportional represeno
tation: and oh. yes. the bill disclaims
proportional representation as a right.
But as the Attorney General 0! the.
United States said in the Washington

— Post-oanarChrzsrthe“ disclaims?-
either completely reveals the results.
test or it is meaningless. And‘he is con-

_ rect: It either repeals it or it is mean-.

1 ingless; You cannot have it both ways.
You cannot say there is a protected

class and that it has the right to elect
-' . representatives oiits choice and then
. '- turn around in' the next. sentence and
- . -, say, Y'Oh.; tor heaven's sakes. don’t
think for a moment we mean that any-

'* body should beguaranteed theright
' to elect so many people to public

.,9ffi°°.F'.--'. . ,.
. V Either you mean it 'or you-do not
‘3 jammand-the‘clever little- llne here '
.V .2. 5“ lathe; Weight: thelrightrof- "pro--
partiorutarepresentatiom”. But what
.will slip. in under- the line? iaquotag. l;
, ;mmpgttry . its ' - .
. its, mm

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CONGRESSlONAl. RECORD — SENATE

abuse here. That is the way to solve
this problem.

Everybody is 38.371118. Why, no. we do
not want to impose quotas: we do not
want to impose proportional represen-
tation. I am saying with the current
language. we run a risk that they will
be imposed as a remedy by the courts.
So we should all agree on what we are
doing. let us settle next on‘ an amend-

ment that will make it clear that the.

court cannot impose remedies involv-

ing proportional representation and

quotas. Then we can at least go back
to our States and say. "No. that
Voting Rights Act will not bring. about
that particular kind of result."

Given the way the bill is worded now
and knowing the nature of the courts
proportional representation and
quotas are wherewe~ are headed. It is
just that simple; I" caution my col-
leagues about voting for the bill the

way it is.
no- Ml’l“ lily- Drneidnnf Y cknl‘l “no

 
 
 

 

     

S 6963

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