Excerpts from Senate Hearings: Proportional Representation (Opening Statement of Senator Orrin Hatch)

    Propovh‘onal. Represmi-d-u‘on
Etna/pk Ham SW6 Hem/{was

 

, samba 09 sewov own We“
ngvhg

Pp. 3‘5

I would ask my colleagues as well as others interested in this
debate to consider the implications of discarding the intent stand-
ard. By focusing upon the results or the effects of an allegedly dis-
criminatory action rather than upon the motivation for such an
action, we are redefining the very concepts of discrimination and
civil rights. By focusing primarily upon numbers and statistics
rather than upon evidence of some wrongful purpose, the “results"
test would transform the 15th amendment and the Voting Rights
Act from provisions designed to insure equal access and equal op-
portunity in the elector process to provisions designed to insure
equal outcome and equal success.

Such an objective, the objective of racial balance on elected, rep-
resentative bodies. is inconsistent with every value of our Constitu-
tion. As the Court stated in Mobile in rejecting the pro ition ex-
pressed in the proposed change in section 2, ‘The rig t to equal
participation in the electoral process does not protect any ‘political
group, however defined, from electoral defeat.’

In short, what the “results" test would do is to establish the con-
cept of “proportional representation by race” as the standard by
which courts evaluate electoral and voting decisions, as well as de-
cisions of municipal organization and structure, by communities
throughout the Nation.

No, it probably will not result overnight in city councils, and
county commissions. and State legislatures, and school boards
across the Nation reflecting racial proportions in their jurisdic-
tions. That is too simplistic a notion.

Rather, what the ‘results” standard will do is to establish th
“ roportional representation" standard as one by which the Feder

Government and the courts assess the constitutional validity
every municipal system. every redistricting plan, every electoral
and voting requirement, and every alternation of those systems,

plans, and requirements. Whether or not there is proportional rep-
resentation by race or whether or not proportional re resentation
1s promoted by these policies will become the legal f ter through
which they are judged.

As in the city of Mobile, never mind that there was no discrimi-
natory purposebehmd their establishment, and never mind that
there were legitimate, entirely nonracial 'ustifications for such
policies. As in the City of Mobile, efforts wil be made to dismantle
entirely the structures of self-government enacted by citizens
across the countrg'ée

5.“ the Court 0 rved in the Mobile case, the dissenting o inion.
which expressed the case for the “results” test, “would ' d
fixed princ1ples of equal protection in favor of a judicial inventive-
:iessnthat would go far toward making this court a superlegisla—
ure.

The notion of “proportional re resentation by race" is not a s -
ter that any Member of this ng'ress has pulled out of a at.
Apart from_the fact that the “results" test can have no other
In . by its very terms, the House report on their version of the
Voting‘ hts Act concedes that evidence of roportional re resen-
tstiotwn ‘would be highly relevant" in establis ' a section viola-

n.

Pnpovh'oml Pep- 9‘

In addition, we see many civil rights leaders stating rather ex-
Elicitly that roportional representation is their goal. Dr. Willie

ibson, presi ent of the South Carolina NAACP, for exam 1e, has
stated that, “Unless we see a redistricting plan in South arolina
that has the possibil‘fifi of blacks bein elected in proportion to
their po ulation, we ' push hard for ternative plans.

In ad ‘tion. the Supreme Court has been forthright in its charac-
terization of the “results" or “effects” standard as one designed to
promote pro rtional representation by race. To refer to the Mobile
case again, Court observed, “The theory of the dissenting opin-
ion appears to be that every political group, or at least every such
group that is in the minority, has a Federal constitutional right to
elect candidates in roportion to its numbers . . . the equal protec-
tion clause of the 4th amendment does not require proportional
re resentation as an imperative of political organization."

ore I conclude. let me make an observation about a so-called
disclaimer provision in section 2 that we will all be hearing a great
deal about during these h ' . This provision, it has been sug-
gested. disclaims the idea that k of proportional re resentation
constitutes a section 2 or 15th amendment violation. t is pure
and unadulterated “smokescreen.”

Rather, what the language following the “results" test in section
2 as is that lack of “ roportional representation" “in and of
i ' is not a violation. t then proceeds to describe merel a few
factors that, in conjunction with the absence of proportion repre-
sentation, will consummate a violation.

These factors include the existence of at-large electoral systems,
racial bloc voting. a history of discrimination, majority vote re-

uirements, prohibitions on single-shot votin , and numbered posts.
factors that have been su ested by t 0 civil rights commu-

ni or that have been used by e Justice Department in the past
' uds disparate racial registration figures, history of English-only

lballots, the maldistribution of services in racially definable neigh-
borhoods, staggered electoral terms, impediments to third party
voting, numbers of minority registration officials, “inconvenient’
registration hours, reregistration requirements, registration purg-
in requirements. et cetera, et cetera, et cetera, ad infinitum.

other words, given the lack of proportional representation,
any of these factors which the House report calls “objective" fac-
tors of discrimination will suffice to complete a Voting Rights Act
violation. Given the absence of proportional representation, virtual-
ly an jurisdiction in the country will be vulnerable to a section 2
suit. ndeed, the Court in Mobile rejected a similar attempt to dis-
claim the charge of proportional representation by calling it "illu-

sory” and restin upon “gauzy sociological considerations having
in CQMW- 4.

/

 

TeS‘i‘imOim/ 0i: EWJIQMCH Hoots

 

Q . 2 ’5 2. ‘ ‘5 3'

”Senator HATCH. You indicate that you know of no one in the civil
rights community that has advocated glroportional re resentation.
Permit me. if gou will, to quote from e Greenville, .C. “News,"
of December 1 , 1981, the remarks of Dr. Willie Gibson, whom I am
sure you know. He is the president, I believe, of the South Carolina
NAACP. He indicates his "opposition to a redistricting plan in

11

South Carolina by stating, ‘ ess 6 see a plan that has the pos-
sibility of blacks having thW-
up n to this Equation, we m d for a new p .

Can you exp am e subcommittee what Dr. Gibson is talkin
about here? It appears to me that he is talking about proportion

representation.

fro porb‘OV‘Ovl Pep 3

Mr. HOOKS. I understand precisely what Dr. Gibson is talking
about._ These are not unusual statements to be made. I think there
is a big difi'erence between proportional representation and repre-
sentation in proportion to t eir population. It simply means that-
we are not 100 for 00 e ints—if we have 42 percent,
we wan percen representation. ut i oes mean there must be

W—mt we would not be satisfied with a
p , or instance—

t‘ioSe?nator HATCH. Is that not a form of proportional representa-
n

Mr. Hooxs. If youaget to the nth degree, any representation is
somewhat proportion . It is a part of our Constitution. It is not ad-

hered to generally, but the whole business of redistricting was to
adhere to the concept of 250,000 members for a Congressperson, 2
for every State no matter what size for the Senate. It was set up
like that.

Ge mandering is somethin that has been in our language long
before lack folk got involved. hese are not new concepts.

If you understand what happens in South Carolina—that in the
State senate even today there is not a single black serving, unless
it hap ned in the last 3 months. We are involved in a lawsuit
there, ficause we do have blacks in the State house of representa-
tives, but not a single black has been elected to the senate because
of the we they do it.

What r. Gibson was dealing with was a precise situation where
somebody said, “There are 30 members of the senate; would you be
happy to settle for 1?” In that kind of rhetorical statement to a
people, the answer alwa s is, “Certainly not. We want something
that resembles our popu ation." That is a far different cry from a
mathematical proportional representation, which is the term that
is being used here over and over again.

In the human existence of our lives, if I were to go to any State
and was asked to put the NAACP seal of approval on a particular
plan, like a Democrat in Utah or a Republican in Cook County, I
would probably enter that very suspicious about what was happen-
ing. I would want to know, “Does it deal with equity?” And equity
does not mean exact mathematical proportions.

I know Dr. Gibson. He is the president of the NAACP Conference
for South Carolina. He knows NAACP licy. He would not know-
ingly violate it. That statement—and have heard him make it
many times—has to do with_ promrtions and not proportionate,
mathematical, precxse re resentationbased on population.

‘ Wu. To use your illustrafion, ii nof‘ZZ percent, what
percentage would you be satisfied with?

Mr. HOOKS. Senator, we have had to wrestle with that over and
over again, and new occasions teach new duties. Time makes an-
cient good uncouth. We have never been able to come up with any
precise definition.

Just like the standard of granting broadcast licenses, you must
serve the ublic interest, convenience, and necessity. No writer, not
the most earned professors like Willesden, have ever been able to
explain it. Like the Sn reme Court Justice said about pornography,
“I may not be able to efine it, but I know it when I see it.” Equity
to us is something we may not be able to define, but we know it
when we see it in a iven case.

Senator HATCH. I now proportional representation when I see it
too. I think anybody who looks at this knows it.

Let me just ask you this: Let us assume that I am right in my
belief that this bill will lead to proportional representation and this
bill passes. Of course if it has 62 firmly committed an porters;
there is no question it is going to pass. If it passes an it does
result in proportional representation, will you accept that?

Mr. HOOKS. I did not quite—

Senator HATCH. Let us say this bill passes in its present form
and it results in proportional representation. Would you be satis-
fied with that?

Propovi'ibml 25? ‘7"

Mr. Hooxs. I do not know how it would result in proportional
representation, unless you had a lawsuit that would declare that it
meant that. I am simply saying to you, sir, that we propose in the
future, as we have in the past, to monitor and look at the practices.

Remember, when we talk about proportional representation, we
seen: toIhaJe forgotten one ifhmgBal We talk babout tlgat Baltimorel ex-
am e. t not matter ' timore mes percent b a .
Jiftheyelecta is u o .

:v. :5: e "L th.t,
you can pinpOint tha

  

     
   

 
  

maie ha n.

e cause is the black folk in Baltimore happen to like that
white mayor and those white council people, that is not a cause for
justiciable arrangement of a grievance.

All I am saying is that I think we have forgotten what precedes
the language, and that is there must be a practice, there must be a
condition, and in my written testimony I have outlined about 30
things that happen. _

If you could prove that voting from midnight until 8 in the morn-
ing kept blacks from voting or putting the precincts in the police
department—there are all kinds of things—if you could not prove a
practice, a custom, or something that happened, you would not
ever get to the results. The results trigger looking at practices, and
you have to do both.

I have been in these suits, and let me tell you, sir, they are nf
easy to win.

Senator HATCH. I understand that.

Mr. H00 ou prove the results,

      
 
  
 

 
    

ir, may you one 0 er q .

tion, but may I pose one other situation? If indeed the word “re-
sults" would lead to all of this, why not then would the word
“intent” lead to the same result, except that the proof would be
higher? What magic is there about the word “results" or “effect,"
if we use either one?

Senator Hamstfizcamfintzlnt” focuses discrimination analysis
upon recesses, ra r t res ts.

Mr. Hooxs'. Sir?

fS‘olizlator HATCH. Because it involves an entirely different method
0 .

Mr. 0038. If you could prove that they intended to deliberately
discriminate, segregate, to keep blacks out of office, and never let
them serve, then would the result be, if the Court finally adopted
that finding that, “In this city we find that they deliberately in-
tended never to let blacks be a part of it, and therefore we man-
date that they must now get proportional representation, since
they have sinned?”

And if they do not have to do it, suppose the Court says, “We
find that the result was that they did not let blacks have office,
and we therefore mandate proportional representation?" What is
the difference between result and intent that would lead to the
concept of proportional representation? I do not understand.

evolve H’VOVWL ’26? 5

Senator HATCH. The difference is, under intent the Court exam-
ines the processes which lead to a given results. Under a result test
only results, regardless of whether anybody intended to discrimi-
nate, are of significance in making a determination as to whether a
violation has occurred or not.

MI Hooxs. I thought you said that you prove intent largely by
resu ts.

Senator HATCH. No. That may be part of the circumstantial evi-
dence in raising the ultimate inference of intent. It is not disposi-
tive in and of itself, however.

Let me just cite the Greenville News about another statement
Mr. Gibson made. ”South Carolina's population is approximawa 30
percent black, and 30 percent of the senate should be black." There
is another illustration of a call for proportional representation.

Mr. Hooxs. Yes, sir, I understand that. I can tell you right now
that you might find there are many statements that we make in
the heat of battle out on the lines and in the trenches that do not
have anything to do with the results we seek.

I wonder also if there were not included in the House bill what I
think is the Sensenbrenner amendment, if I remember correctly,
which says that any language in this bill can never be construed as
to ask for proportional representation.

I think the civil rights community even went along with that
language, so that we could not be accused of seeking proportional
representation.- I think that was an amendment to section 2 which
was proposed by a very conservative Republican from the State of
Wisconsin, if I remember correctl .

Senator HATCH. That that really is no restriction; all you have
got to show is one other factor and you have grounds, for a viola-
tion, whether truly warranted or not.

let me quote another remark of a colleague of yours in the civil
rights community. Rev. Jesse Jackson was quoted in the Columbia
Sun on October 25, 1981, as saying, “Blacks comprise one-third of
the State of South Carolina's population and deserve one-third of
its representation. We believe that taxation without representation
is tyranny." -

I think that the point I am making, Mr. Hooks, is that maybe
these are simply statements made in the heat of battle. But the
fact is this: they are being made. And the fact is this: I do not see
how anybody interpreting that language in the House bill can in-
terpret it any other way. It would ultimately lead to proportional
representation, assuming that the Supreme Court would not find it
unconstitutional.

You have made the point here today that the Supreme Court
may very well decide—I think it would be improper for them to
decide it this way—but that the Court may decide that Congress
has the right to set a legal standard of proof in excess of the consti-
tutional standard. I do not think they will find that in the ultimate
result, but personally I feel that the country should not have to un-
dergo the experiment in the process.

Mr. Hooss. Sir, may I make one other statement? I have on
many occasions in some cities made the statement that, “This city
ought to have a black mayor.” Sometimes I make that statement to

.

pro porHDWlL W G

the white power structure; sometimes I make it to black folk en-
couraging them to vote and register.

Senator HATCH. I find no fault with that.

Mr. Hacks. I am not at all sure that Jesse Jackson ma not have
been talking to a black audience about what they to do in
order to get it.

Proportional representation was not a question, as far as I can
see it, between 1965 and 1980, when at least we behaved that the
effects test was the law. We did believe that.

I must tell you that we were shocked when we discovered in the
Mobile v. Bolden case that it required intent. We certainly did not
believe that at all in preparing that case and taking it up.

I do not recall proportional representation or the mirror image of
the pulation being a present roblem up to that point. I do not
thin it was; I do not think it ' be now.

Senator HATCH. These statements are fine, but the problem we
are raising here today is that these statements are being codified
into law, in my opinion.

Let me quote from the House report on H.R. 3112. It states there
th of proportional representation is y rele-
vant.”
—MF.' Hooxs. I beg giant pardon?

Senator HATCH. 'dence of lack of proportional representation
is highly relevant in proving a section 2 violation under the results
test. Indeed, there is no other factor that they describe in this
manner. What does that language mean, in our view?

Mr. Hooxs. It means exactly the same t 'ng to me, Senator, if
they had said that proof of proportional representation or lack
thereof is very important to prove intent. I just do not think there
is any difi‘erence at all between intent and results when you talk
about pro rtional representation.

Certain y, if I were trying a lawsuit, or if you were, for some
reason, hired b my organization to try a lawsuit—and maybe one
day we will be in that hapr circumstance—you. would not say that
even under intent lack o roportional representation deals with
the fition of results, whic deals with the question of intent. I do
not t ‘ k it means any more or less.

I do think certainly, if I were trying a lawsuit, I would deal with
the fact that there were five city council ple elected and no
blacks over a 40-year history, which has to o with representation,
whether'you put proportional in front of it or not. I would make
that same argument whether I was arguing under an intent test or
results test. do not see how I could make any other argument. I
would have to use it.

I just fail to see where the word “result” in denying or abridging
the rights is any different from intending, except someone tells me
that ou cannot rove intent, therefore it becomes a nullit .

I ‘ —and have said before—that the primary dif erence is
that the Administration bill would make it difficult, if not impossi-
ble, to ever win a case, because it would demand that you prove
intent, and intent is a subjective matter.

I believe, with Senator Mathias, that the Court in Mobile v.
Bolden did more or less a dim view of ' ' '

m-
stantial ‘ an emand in n in the strictestf There-l

Ropmdfimal Eqa. ?—

fore, if result tests resulted in iroportional representation, the
mtent‘tfit’wofld if you could prove it.

MAybe—certainly not from yourWiEWpoint, because you would
not think like that, but maybe from the viewpoint of some—they
are saying. “Let’s get intent in there, and since it can never be
proven, we won’t have to worry about it." But I maintain the re-
sults would be absolutel no different, except the standard of proof.

I fit hearing the ttorney General say that the reason he
wan intent was that the standard of proof would be much
higher. Yet he kept saying that results would be a part of that
standard of roof. You have to look at results, and it may be, in
some cases, t e onl proof you do have.

nator HATCH. t me just say this: I appreciate your courtesy
to me and your kind remarks, but the issue is greater than that.
This is a critical constitutional issue. As a practicing trial lawyer
before I came to the Senate, I had very few cases where I did not
have to prove some kind of intent. In fact, in every criminal case, I
had to demonstrate intent, and beyond a reasonable doubt. And in
many of the civil cases I had to prove intent by a preponderance of
the evidence. It is done every day in every court of law in this
country; If the proposed changes in section 2 would make no differ-
‘ence, t en why are you fighting so_vehemently for the change?

’ ' ‘ hat any rea-
' indin that the chairman refuses to think t .
gabfgypgrson 8or group of. persons might make3—both the White
decision and the Chavez deCision, in 1971 and 197 . h' h licitl

It is our intention to enbrace those deCisions w ic exp Ml?
barred proportional representation based upon percentage? as me
Hooks has testified to. It is an attempt to take what t e upurcel be
Court has said in both of those calzets)e and to insuf:1 tthat it wo

ard b which there wou measurem. .

thfifainng move): on. Quite frankly, Mr Hooks, With all dueJresgpsegt,
whatever was stated by my good friend and yours, Jesse ac ,

and by others who made comments or statements that were read

' ' ' th law. The
into the record, they are not gomg to be codified into epropriatel;

one of viewpoints, but as you quite ap
mtiitebd' :fifres‘s; law is what is in the statute; it is more, walla
gen than what is in the report, although we have heard commen

about report language almost as if it were included in the statute

itself. My understanding as one of the prime sponsors is in accord
with yours and with the casechiwu.

2 (p ) / Senator KENNEDY. Sure. The Supreme Court effectively made

 

$1"an at WWW Mal/HVWZ.

 

Prgpared
l J
S _ 0(0 ’ ' en an is stan inoo y conten
F - go enact a requirement of "proportional representation” of minorities in governmental
bodies. Clearly the standard outlined above requires far more than proof of lack of

“proportional representation." At a minimum. minorities would have to show racial-
l polarized voting together with other objective factors which effectively preclude
eir participation in the political process or dilute the value of their vote.”

The issue then, is not proportional representation, but equal aooeu to the political
process. This does not guarantee that minorities will be elected to oflioe; it does
gmantee that minorities who are barred from holding office or whose votes are de-

because of their race or membership in a language minority group will have
legal channels through which to challenge their exc usion. I?“ exclusion I mean far
more than an outrig t bar on voting or running for office. e Supreme Court has
consistently held that “the ' ht of suffrage can be denied by a debasement or dilu-
tion of the weight of a citizen s vote just as effectively as by wholly prohibiting the

free exercise of the franchise." Reynoldsav. Sims, 377 US. 533, 555 (1964); see also

I

Pmpo vl-w‘oma/L Pep. 8

Testimony o¢ E. Fvfiemm Levevei’l'

iii/9?

fit“

  
 

' Se tor HATCH. ' . What is the standard? what does the
urII:1 2s itse under the effects test? Can you define that?

Mr. szms'i'r. No, sir.rI would think, though, from-reading the

   

committee report, that the intention is to impose a discriminatory -
impact or effect standard that is no less than the standard in sec»

tion 5, and in fact I think it will be even more stringent because of
the Supreme Court decisions that limited the literal langu e of
section 5 in the Beer case based upon the peculiar purpose 0 sec-
tion 5, which background is not applicable to section 2. _
Senator HATCH. Maybe that is one of the reasons why I never get
an answer to that question from anybody, and we have the top
legal experts in this particular field on the other side of this issue.
Nobody yet has answered that question very satisfactorily, and I
think one of the reasons they are afraid to answer it is because
they know section 2 must lead inevitably to proportional represen-
tation. Do you agree with that assesment? _ .
Mr. vanam. Yes, sir; there is no doubt about it. ' ‘

. J

Senator HATCH. Do you see any other result the section 2 change:

could have, under the im lications of term “result”?

Mr. LEVERE'I'I'. No, sir; think the word “result” is just as strong-

as “effect" or “impact" and rhaps even more so.‘

Senator HATCH. OK. you. ' 'f

Mr. Lzmm. The second point I wish to make Concerning the
amendment to section 2 is that in my opinion it will go even fur-
ther than the effect language of section 5. In Beer v. United States,
which is the New Orleans case, the Supreme Court held that the
literal language of section 5 was limited, that it would not be given
complete effect according to its terms because it had to be read in
its context, and its context was to prevent changes in laws that
would result in retrogression in the position of minorities in cov-
ered States. ~ .

Consequently, in the Beer case the Supreme Court rejected the
contention of the‘Attorneivl General and the District Court of the
District of Columbia, whic had said that under section 5 the reap-
portionment laws were required to maximize the political gower of
minorities. There is nosimilar basis, however, in section for im-
posing) such a limiting construction. Consequently, there is a real
probe ility in my opinion that section 2 as amended will be con-
strued as requiring the maximization of the political power of mi-
norities in connection with any reapportionment law.

" Another basic point m needs to be pointed out here is
that while we have used in this debate terms of discriminatory
effect or discriminatory impact, this term really in civil rights ju-
risprudence means disparate im act. It does not have necessarily
the connotation of something e ' or something malicious or mean.
It simply means that in its actual operation it produces an effect
on one group that is different than it produces on another. This
has been borne out in the similar language in title 7 of the 1964
Civil Rights Act.

Propovdw‘orxal QCP' ?

Now coming to the consequences of the amended section 2, the

first area that I think this will dramatically affect is with respect

an“ = II" -er -‘ I -.:: ‘ - , H W'lative and local district-

- : a result of the release of the 1980 census, m ‘ = a: are

~ -- the process of revising their congressional district 1' es,

their legislative seats, their legislative districts in State legisla-
tures, and political subdivision elections.

At present these laws are governed by the traditional constitu-
tional standard of discriminatory intent or purpose. That was so
held in Wright v. Rockefeller in 1964 involving New York. Section
2, however, would now apply the new race-conscious impact or
result test to State legislative districting and con essional district-
ing, and in consequence it would mean that all 0 these laws would
have to be jud ed by how they affected a particular minority, if it
was a protected minority under section 2.

The likelihood is that these laws will have to maximize the polit--
ical strength of protected minorities. Redistricting consequently is
going to become much more race-conscious and much more difficult ‘
as a resJult. \ I

The second area that will be affected by the amendment to sec-
tion 2 is in connection with municipal annexations and governmen-
tal consolidations. When new areas are annexed and are subject to
section 5 preclearance, and the effect is to reduce the overall mi-
nority percentage in the political subdivision, the Supreme Court
has'held that the city or the political subdivision must convert to
single-member district elections with districts gerrymandered so as
to insure that the minorities would have proportionate representa-
tion in the e '

fact, it was only with great diffi
rejected—and even then with three judges dissenting—the conten-
tion that there could not be any annexations anyway unless the
minorities had the same fififical strength in the new community
that they had in the old. e Supreme Court rejected that but not
without great difficulty, and even then three jud es dissented.
_ However, keep in mind that in connection wit section 5, the lit-
eral consequences of that section have been limited by the Su-
preme Court’s decision in Beer, which says that this section was de-
signed only to prevent a retrogression and therefore it was not re-
quired to maximize the power of minorities, but no similar rovi-‘
sion or policy consideration would be applicable to section 2. ere-
fore, the fact of the matter is that section 2 is likely to be applied
so as to prevent annexations or consolidations in their tracks in
situations; ~

  
 

       
  

      

 

 

O

P ' qo {Wr that is set forth in the proposed amendment to
section.2 in my opinion will not accomplish anything. The reason is
that this disclaimer does not add anything new. It has already been
enunciated in the very cases that established the dilution doctrine.
These cases have required the abolition of at—large districts, not-
mthstanding that they have expressly articulated this disclaimer.
However, more important, as has been pointed out here earlier
today, this disclaimer will be construed in the light of the language
at (page 30 of the report of the House which says that all you have
to. o is to show that over a period of time candidates offered by the
minorities have been consistently defeated. This goes further than
any court decision has ever gone, and in fact this was expressly re-
jected, this argument was expressly rejected in Lodge v. Buxton at

pages 1362-13 3.

Fropov‘i'VOW 26p. ’0

Frapavaq Stew Of' 5' 966mm Leaves/2+?

P I qo? I . I or equal significance to the general doubt and contusion
which the Section 2 amendment will produce. is the nature or the
change it will inflict. While the immediate issue is stated in
terms 6: 'ettect' vs. 'intent', the bottom line is proportional
racial representation, and reverse discrimination. As a lawyer who
has been of counsel in a number a! voting rights cases, I have par-
sonelly observed the emergence of new doctrine which says that a
minority, is entitled to representatives proportionate to their
numbers. and that any law which in practice disadvantages that group
in any way, regardless 0! its otherwise valid concerns. is by the
former {act alone rendered invalid. .An 'etfect' or 'impact' test
is nothing short of a formula for special privilege and reverse
discrimination, and necessarily tends to exacerbate and aggravate.

rather than to alleviate. racial ditterences and antagonisms.

‘

q). 0(0% "i ' W50] q-“
At page 30, th; Committee notes that as so revised, 52 would
include 'not only voter registration requirements and procedures, 225
also methods of election and electoral structuresI practices and
orocedures which discriminate.‘ While disavowing any effort to mandate
proportional representation in all cases, the report makes it clear

that this is the objective in most cases:

'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 a! time consistently

to defeat minority candidates or candidates identified with

the interest or a racial or language minority' (ld.).

THE DISCLAIMER IN SECTION 2 ADDS NOTHING

The House Committee Report asserts that the amended Section 2
will not be construed as mandating proportional representation.

because the amendment includes this language:

'The fact that members of a minority group have not been
elected in numbers equal to the group‘s proportion or the
population shall not, in and of itself, constitute a viola-

tion of this section.”

\

  
 
 
 
 
   
  
   
  
 

PmPOVthWL 26p H

This disclaimer is not valid. The principle contained in the
additional section just quoted is already theKla!,/£or the Supreme
Court and the lower courts have expressly so held in a number of
cases. Whitcomb v. Chavis, 403 0.8. 124, 149 (1971); White v. Regester,
412 0.5. 755, 765-6 (1973): City of Mobile v. Bolden, 446 0.5. 55, 66
(1930); Zimmer v. cheithen, 485 F2d 1297, 1308 (C.A. 5th 1973)] affd.

 

sub nom East Carroll Parish School Board v. Marshall, 424 0.5. 636

(1976): Kirksey v. Board of Supervisors of Hinds CountyI 554 F2d 139
(C.A. 5th 1977), cert. den. 434 0.5. 968; David v. Garrison, 553 de

 

923 (C.A. 5th 1977): Nevett v. Sides, 571 F2d 209, 216 (C.A. 5th

 

197a), Lodge v. Buxton, 639 FZd 1358, 1362 (c.a. 5th 1981), stay
granted sub non Rogers v. Lodge, 439 0.5. 948 (1978), probable juris-

diction noted October 5, 1991, 0.5. ,_70 L.Ed.2d 80 .

In White v. Regester, supra, the only decision or the Court to
uphold invalidation or e multi-member district on constitutional grounds,

the Court declared:

'To sustain such claims. it is not enough that the racial
group allegedly discriminated against has not had legisla-
tive seats in proportion to its voting potential" (412 0.5.

at 765-6).

Yet, it is this same case, White v. Regester, which gave rise
to the ‘disparate impact' test which a later Court just disapproved
in City of Mobile v. Bolden, supra, and which has been used in many
cases to strike down at-large voting arrangements, and to require
deliberate gerrymandering of election district lines in order to achieve

varying degrees or racial balance in representation.

Consequently, since the disclaimer is already a principle firmly
established in the very cases which have given rise tothe 'disparete
impact' test in election cases, its restatement in the amendment to 52
in HR 3112 does nothing to alleviate the force of the disparate impact
language which precedes it, and in fact, it is obvious tram the
Committee Report that the sponsors of Bk 3112 intend'ior it to impose

an even more rigorous disparate impact standard than the one disapproved

in City of Mobile v. Holden, supra.

 

ENSTHE RULE THAT THE FAILURE
OF MINORITIES TO ELECT REPRESENTATIVES IN PROPORTION TO
THEIR NUMBERS DOES NOT ESTADLISH DISCRIMINATXON
The disclaimer added to 52 necessarily will be construed in the
light of the House Committee Report quoted above (p. 4) to the effect
that it would be illegal for an at-lsrge scheme . . . to permit a bloc
voting majority over a substantial period or time consistently to

defeat minority candidates. . . (Report, p. 29).

so being, it ii cledr that the statement of the Committee Report
goes further than any existing court decision in mandating proportionate
racial discrimination. No case yet decided has held that the mere fact
that minority candidates are consistently defeated operates to invalidate
an election plan. Indeed, the cases previously cited all held to the
contrary. They require some additional factors, such as a history of
past discrimination, unresponsiveness of legislators to minority needs,
and the like. Yet, the sponsors of HR 3112 andounced in the Committee

eport that such is their intent.

Pmpov-Homal (26(3- )7"

It hes the Lima; case which gave rise to the so-called 'zimmer
dilution analysis,‘ which is responsible for having ushered in a
virtual reconstruction of a staggering number of city councils, county
commissioners and boards of education in the southeastern United .
States. All of this has been accomplished without any showing of
discriminatory intent. In many instances, at-large election laws
in existence for over 60 years, adopted during a period when it is certain
they were not designed as engines of discrimination, were struck down
under the zimmer approach. In a number of other cases, at-large laws

enacted subsequent to 1964 were denied preclearance under Section 5.

 

I personally as familiar with a number of jurisdictions in Georgia which
sought to use at-large election simply as a convenient. ready means of

complying with the one-man-one-vote principle following the court's
1963 decision in Avery v. Midland County, 390 0.5. 474 (1963), and its,

1970 decision in Hadley v. Junior College DistrictI 397 0.5. 50-(1970),
holding the reapportionment principle to local governing bodies such

as boards of education and cities.

The invalidation of at-large elections has been conjoined with

a requirement that election districts be gerrymandered so as to

achieve varying degrees of proportionate racial representation. In

remedying dilution, the courts in the Fifth Circuit have been quite
direct in holding that race must be considered, Zimmer v. Hokeithen,‘
supra (485 r2d at 1303); Kirksey v. Board of Supervisors of Hinds
County, supra (554 Fld at 151); united States v. Board of Supervisors

of Forrest County, supra (571 FZd at 955), and in Kirksey, the Court

in effect mandated racial gerrymanders in order to insure some degree

of proportionate representation. (See particularly, 554 P2d at 151.

and Judge Gee's concurring opinion, at p. 153). The real pervasivenoss
of this reverse discrimination requirement is not usually spelled out in
words in most of the cases for obvious reasons. It simply is effectuated
by the Court's refusing, without explanation, to approve any plan except

e which does maximize minor‘tu “ , r _
"‘nc .A—-—— l_________*_—’,

It is the Zimmer disparate impact dilution principle, of course,

that City of Mobile v. Bolden disapproved, and which the amendment to
Section 2 seeks to restore in an even more rigorous form. That the

standard under a revised Section 2 will be even—fi::_:::::::z_:::-—-———ar’
First, heretofore, the rule was one solely of judge-made law,

designed to 'fill in the gap' in the common-law tradition. “hon, however.
Congress enacts it into law, this represents a policy-decision by the
proper policy-making body, and the Courts generally apply the statute
more forcefully than the judge-made rule. It is not even certain, for
example, as to whether the courts would continue to require the Fifth
Circuit's showing of the traditional 'aggregate of factors" to invalidate

at-large voting, or simply adopt a per 32 rule.‘

 

 

 

Secondly, Section 2 comes armed with a House Committee.roport
specifically declaring that Congress intends that in any community where
blacks have been unable over a period of time to elect representatives
commensurate to their numbers, at-large elections stand condemned by
Section 2. The report laments the fact that blacks have not registered
or been elected in the same proportion as whites (Report, pp. 7, 9),
making apparent that Section 2 is aimed at achieving proportional repre-
sentation.

pmpowh‘bhdl (Zap. '3

Even assuming, however, that the Courts continue after the

 

amendment of Section 2, to require a showing of something in addition

to the inability of minority persons to win elections in order to invalidate
at-large elections, the Zimmer formula will continue to provide that
'something 'else'. Essentially, as applied, the Courts have given
controlling significance to that part of the Zimmer analysis which is
concerned with a history of prior discrimination. ‘ The high point of this
development came in Kirksey v. Supervisors of Hinds County, 554 Md 139
(C.A. 5th 1977), cert. den. 434 0.5. 96!, where the Court held that'it
was necessary only to show a past history of discrimination in areas
unrelated to voting, and that the at-large‘scheme perpetuated 'an' I
existent denial of access by the racial minority to the political

process . '

 

P Q7 5 -2 a, f’ “I" “3,. "E 2.2m?s:z:3:.:s.:z-mama?”

P As previously stated, in every case where at-large elections have
been successfully invalidated by court decision. therehave been efforts
by the plaintiff's counsel, which usually have been successful, to
mandate a remedy which not only converts to single-member districts,
but also to racially gerrymander single-member districts which 'insure
varying degrees of racial proportionality. As a lawyer who has been '

of counsel in several of these cases, it has confronted me in every

one. lnvariably, the' effort is made to gerrymander election districts
that will have a minimum of 65‘ to 70‘ minority citizens, since it is
felt by civil rights groups that because of the tendency of many ‘
minorities not to register or vote, a substantially greater percentage
then a bare majority is necessary to insure election. This has also
invariably been the experience in connection with preclearance in '
covered jurisdictions‘undar $5 of the voting Rights Act. In one case
which I handled involving‘ Wilkes County, Georgia, I was advised by a
representative of the Justice Department that they would agree to pre- _
clear a single-member district plan if one district would be devised

so as to provide for a 70\ black majority.

This apparently has been the'experience with Justice Department

officials in the Voting Rights division in a number of other cases,

for in United Jewish Organizations v. Carey, 430 0.5. 144 (1977). there

is a reference to an anonymous telephone call from a representative of'

the Justice Department to this effect:

”A staff member of the Legislative Reapportionment Comittee
testified that in the course of meetings and telephone
conversations with Justice Department officials, he got the
feeling that 65! would be probably an approved figure. for
the non-white population in the assembly district in which
the Hasidic Comnity was located, a district approximately

61\ non-white under the 1972 plan.‘ (430 0.3. at 152).

 

 

Vmpowhomal [2619’ W

"hat is being sought here is governmental action which forces
governments and public officials to think and act along racial lines.
(Ely, islative and Administrative Motivation in Constitutional
£33, 79 Yale L.J. 1207, 1260 (1970). It is, in effect, an insistence
upon segregated election districts, which reinforces the bloc-voting
syndrome. David v. Garrison, 553 F2d 923 (C.A. 5th 1977 ). Such
reverse discrimination exacerbates, rather than reducesj—rbcial tensions.

university of California Regents vz Bakke, £30 0.5. 265, 29! (Opinion

of Justice Powell) (1978).

Even Mr. Justice lrennan, who is no enemy of benign discrimination,(
has recnqnired that an effort to achieve proportional representat

could be used as a 'contrivance to segregate the group. . thereby

frustrating its potentially successful efforts at coalition building

across racial lines." United Jewish'Organizations v. Carey, supra, /

(430 0.5. at 172-173). He further notes that such a policy ”may serve

   
   
   
   

to stimulate our society's latent race consciousness, suggesting the
utility and propriety of basing decisions on a factor that ideally
bears no relationship to an individual's worth or needs,” (ld.,

p. 173), and that "we cannot well ignore the social reality that
even a benign policy of assignment by race is viewed as unjust by
many in our society, especially by those individuals who are adversely

‘affected by a given classification.” (Id., p. 17‘).

A more practical concern with proportional representation,
‘however, has been articulated in the two cases dealing most directly

with the subject of at-large voting.
In Whitcomb v. Chavis, supra, 403 0.3. at 156-157, it was said:

’The District Court's holding, although on the facts of this
case limited to guaranteeing one racial group representation,
is not easily contained. It is expressive of the more I
general proposition that any group with distinctive interests
must be represented in legislative halls if it is numerous
enough to command at least one seat and represents a majority
living in an area sufficiently compact to constitute a single
member district. This approach would make it difficult to
reject claims of Democrats, Republicans, or members of any

political organization in Marion County who live in what

would be safe districts in a single-member district system
but who in one year or another, or year after year, are
submerged in a one-sided multi-member district vote. There
are also union oriented workers, the university community,
religious or ethnic groups occupying identifiable areas of
our heterogeneous cities and urban areas.- Indeed, it would

be difficult for a great many, if not most, multi-member
districts to survive analysis under the District Court's

view unless combined with some voting arrangement such as.
proportional representation or cumulative voting aimed at‘.
providing representation for minority parties or interests.

At the very least, affirmance.of the District Court'would

(mpovh‘oml 26!? - ’5—

spewn endless litigation concerning the multi-member district
systems now widely employed in this country.‘ (403 0.5. at

156-157) . . . '

1n the plurality opinion in City of Mobile v. Bolden, supra,
Mr. Justice Stewart posed similar questions, in response to the
dissenting opinion of Justice harshall, which in effect, advocated
a constitutional requith of proportional representation for blacks

or other persons who had been subjected to a history of discrimination:

'It is difficult to perceive how the implications of
the dissenting opinion's theory of group representation
could rationally be cabined. Indeed, certain preliminary
practical questions imediately come to mind: Can only
members of a minority of the voting population in a particu-
lar municipality be members of a 'political group'? How
large met a 'group' be to be a 'political group'? Can
any 'group' cell itself a 'political group'?. If not, who is
to say which 'groups' are 'political groups”! Can a qualified
voter belong to more. than one 'political group'? Can there
be more thanvone 'political group' among white voters (e.g.,
Irish-American, Italian-American, Polish-American, Jews, A
Catholics, Protestants)? Can there be more than one
'political group' among nonwhite voters? Do the answers
to any of these questions depend upon the particular demo-
graphic composition of a given city? Upon the total size
of its voting population? Upon the total size of its
governing body? Upon its form of government? ,Upon its
history? Its geographic location? The fact that even
these preliminary questions may be largely unanswereble
suggests some of the conceptual and practical fallacies

' in the constitutional theory espoused by the dissenting '
opinion, putting to one side the total absence of support
for that theory in the Constitution itself.‘ (“6 0.5. at

78, f.n. 2‘).

He reiterate what we have said before:. The immediate question
here is discriminatory impact vs. discriminatory intent, but the

bottom line is proportional representation. Nothing could be more

impractical, more injurious, or more divisive

of national u i
the idea that discrete. n ty "“1

groups are entitled to proportional represen-

ӣ1611.
It V111 COMICCIIY destroy any hope thl! Ch. blacks and

DfihOI' racial minorities in Chi. count V111 0V0! b. lHEOQI'lt d
ry I into

the total society .

€Y‘DPOV‘l‘lefl 2(5)?- M7

Section 2, however, is a permanent law, and applies not just at the
q 3 l ”3% point in time of initial enactment, and unlike Section 5, is not limited
in its legislative purpose to preventing only retrogression arising from
changes, but is likely to be enforced according to its clear terms,
unlimited by the peculiar purposes of 55. The Egg; case itself demon;
atrates the tendency of the courts to enforce the Voting Rights-Act
in a bro 4, sweeping manner. While the case deals with preclearance
of a new reapportionment plan and not an annexation, the case is never-
theless pertinent here as being indicative of the general attitude of
the courts. In that case, a new reapportionment plan was devised so as
to give the blacks in New Orleans one black voter majority district.
Previously they had none. Both the attorney General and the district
court in the District of Columbia refused to approve the plan, however,
because if the district lines had been drawn in an East-Heat configura-
tion, rather than a North-South one, blacks likely would have achieved

districts guaranteeing them proportional representation. In other

 

words, the lower court held that the redistricting had to be done so as
to maximise black voting strengthI i.e.l prooostional representation.

The Supreme Court rejected this contention only by looking at the peculiar
purpose of 55, and than only by a 6-3 majority,JusticesHhite, Marshall
and srennan contending that Under 55, proportional representation was
reguired. The majority held that in 55, Congress was mainly concerned
with changes EELE! resulted ig retrogression.

.The considerations which prompted a majority of the Court to reject
proportional representation in the Egg; case will not be present under a
permanent law such as Section 2. The latter'a thrust is not just at
covered jurisdictions, and is not limited to preserving the status ggg
3553.

The foundation for such a distinction has already been laid by the
District Court in the District of Columbia in City of Port Arthur v. Unitef
States, 517 P. Supp. 987 (D.C. D.C. 1981), where the Court discussed the ,

r

 

 

implications of annexations at length, and in denying preclearance because
a plan was not gerrymandered so as to insure proportional representation

to blacks, held that the Beer rule did not apply to annexations, i.e..

 

merely insuring that there was no retrogression, was not sufficient here.

Similarly, in the City of Richmond case, supra, the district court
had disapproved the annexation altogether, despite the fact that the dis-
tricts had been devised so as to insure blacks proportional representation.
The Court was concerned mainly by the fact that blacks nevertheless would
no longer be a majority in the new enlarged city. The supreme Court re-
jected the district court's decision on this issue, but not without some

difficulty, and even then, by only a 6 to 3 majority. 422 0.5. 358 (1975).

The message of all this is clear: The amended Section 2 will stop
noet annexations and governmental consolidations in their tracks, for under
the wording of 52, without the limiting construction applicable to 55, any

annexation which reduces a black or language-minority majority is proscribed