Legal Research on David Hunter

     

633

The court in Apache County High School District No. 90 v. United States,
— F. Supp. — (D.D.C. June 12 ,1980), employed a two-part analysis, either
recognizing difficulties such as those described above or adding a new layer to the
required analysis.

The court first determined that the change—a reduction in the number of poll-
ing places—was retrogressive; then it inquired whether the change was dis-
criminatory in effect. Slip opinion, pp. 10—11.

There is not always an old practice available for comparison. The city, for
example, may be newly incorporated and selecting a polling place for the first
time. While this would appear to make the determination more difficult, the
prior discussion suggests that it may not be. The analysis of the choice among
alternatives will resemble the analysis of a change from one to another.

Section 4( f ) (4) of the Voting Rights Act requires certain jurisdictions to con-
duct bilingual elections. Where elections have not been bilingual in the past the
failure to conduct bilingual elections now may violate section 4(f) (4) but would
not be retrogressive under Beer. A reasonable position for the courts to take
would be that a violation of a statute designed to protect minority voting rights
automatically has the effect of denying or abridging minority voting rights—
Beer analysis does not apply. The court in Apache County, however, did not
take this approach. The failure to publicize a bond election in the Navajo lan-
guage violates section 4(f) (4), the court said, but it does not automatically
violate section 5 because it is not retrogressive. However, the reduction in the
number of polling places for the same election is retrogressive. Therefore, the
retrogression test is satisfied in general for all changes involved, and any change
that is discriminatory is objectionable whether retrogressive or not. Slip opinion,
p. 13. If, however, the failure to provide publicity in the Navajo language does
not by itself violate section 5, it is not at all clear why it should become a vio-
lation when coincidentally the number of polling places is reduced.

If this method of analysis is considered a good practical way to evade the
Supreme Court’s Beer rule, consider these questions:

1. Suppose the court, following the two—part analysis it finds required, decides
that the reduction in the number of polling places, though retrogressive, is not
discriminatory, can it use nondetermination in retrogression to open the door?

2. Suppose the reduction in the number of polling places will inconvenience
blacks but not Indians, does it still satisfy the threshhold test?

3. Suppose the reduction in the number of polling places and the bilingual elec~
tion plan are presented in separate submissions. Can retrogression found in one
submission be borrowed for use in another?

Section 51.37 of the proposed revised section 5 Procedures may give the Attorney
General a tool with which to meet at least the third problem. When two separate
but related submissions are received. the response deadline for the former is
delayed to coincide with that of the latter. The fundamental unit for section 5
analysis had been the change. Is there now a second fundamental unit—the pack-
age of changes? How is it defined?

0 Group voting rights

Although it is not an easy distinction to make, it is useful for understanding
section 5 analysis to distinguish between individual and group voting rights.
Two features distinguish the group right from the individual right. First, it makes
no sense to talk of a group right unless racial bloc voting exists. That is, there
must be a group for voting purposes before a right of the group can be infringed.
Secondly, in a group perspective analysis the electoral process is viewed as a zero
sum game.

For example, a city has a black neighborhood and a white neighborhood and one
polling place, located in the black neighborhood. If a second polling place is estab-
lished, in the white neighborhood, it will be more difficult for individual blacks to
vote, and thus no abridgement of any individual’s right to vote has occurred.
Increased white participation, however, would result in a diminution of black
political influence, and thus in an abridgement of the groups’ right to vote.

Legal and political fights about black suflrage have always concerned the alloca-
tion of political power and not merely the right to vote of individuals. Whether
section 5 analysis would take into account the effect of voting changes on group
influence as well as that on individual rights was not decided until 1969, when the
Supreme Court decided that the adoption of at-large elections was subject to sec-
tion 5. Allen v. State Board of Elections, 393 U.S. 544 (1969). The Court reasoned
that a change in electoral system could nullify a minority group’s ability to elect

634

the candidate of its choice. 393 U.S. at 569. That such a result would violate sec-
tion 5 is based on the one person, one vote standard of Reynolds v. Sims, 377 U.S.
533, 555 (1964) : “(T)he right of suffrage can be denied by a debasement or dilu-
tion of the weight of a citizen‘s vote just as eflectively as by wholly prohibiting
the free exercise of the franchise.“ The notion of group rights, however, is com-
pletely foreign to the analysis of Reynolds: the only concern is the mathematical
equality of individual voters. See 377 U.S. at 561. Although the conduct of elections
at large rather than by single-member districts may affect the political influence
of groups, it will not affect the value of the vote of any single voter apart from
that voter’s membership in a group.

A group influence analysis presents not only many of the difficulties suggested
above that complicate the individual right analysis but also new ones:

First, how does one trade off concentrated political control in one system or
under one districting plan against broader political influence under another
system or plan? In Allen Justice Harlan was unsure “how a court would go
about deciding whether an at-large system is to be preferred over a district
system. Under one system, Negroes have some influence in the election of all
officers: under the other, minority groups have more influence in the selection
of fewer officers.” 393 U.S. at 586. That problem has not been solved. although
the Supreme Court in Allen, City of Richmond v. United States, 422 RS. 358

(1975). Beer, and City of Rome v. United States. U.S. (April 22. 1980),
based its analysis on the abiilty of blacks to elect black candidates or candidates
of their choice. ..

Second, if the criterion is control rather than influence, what propostion of the
seats must blacks control for section 5 to be satisfied? Is anything less than pro-
portional representation sufiicient?

Third. although racial bloc voting must be present before a practice can be
found objectionable under the group influence approach, how the presence of
racial bloc voting is to be established is not clear:

1. Does one analyze all elections, only elections where black candidates are
running against white candidates, or only elections in which there are issues
that are viewed as racial?

2. Racial bloc voting follows a continuum, while a section 5 determination is
Yes or No. At what point on the continuum does No become Yes?

3. Does apparent racial bloc voting have legal significance if it can be ex—
plained in terms of other factors. such as income level?

In addition, one wonders whether the significance attached to racial bloc
voting will lead to its perpetuation.

Fourth, in measuring the political influence of blacks (or potential black
control) should one consider actual political influence based on present regis-
tration, voting, and dropoff rates or theoretical influence based on a level of
participation equal to the level for whites? If one controls for some factors but
not others, how does one determine for which to control? How does one determine
the extent to which disparities are the residual effect of racial discrimination?
How does one determine the extent to which a discriminatory electoral system
or district plan discourages participation? See United States v. State of Mis-
sissippi, U.S. —— (Feb. 19, 1980).

Fifth. to what extent can a redistricting plan that has a negative political
impact on blacks be justified by the use of other criteria. such as contiguity.
compactness, or respect for political or natural boundaries?

Sixth, is a redistricting plan generated by a fair procedure automatically ac-
ceptable, regardless of its impact on black political influence? If it is, how is
a fair procedure recognized? Should such a procedure be colorblind or should
it affirmatively seek to compensate for past discrimination?

Finally, one method of assessing the political influence of blacks under different
electoral systems or under different theories of district composition is to measure
the responsiveness to blacks of officials elected under different systems or theOrieS.
This can be done by analyzing voting or actions taken on issues in which there is
consensus among blacks but not between blacks and other groups. Such an anal-
ysis presents a number of difficulties. How are views to be ascertained? Are the
views of nonvoters to be considered? How much consensus among blacks and lack
of consensus between blacks and other groups is required for an issue to be in-
cluded in the analysis? How great a percentage of the total range of public issues
must be included in the analysis for it to be meaningful?dlany issues on which
there are votes in a legislature are not ones on which a public opinion poll can