Legal Research on May 4th Session 8

    “5&1 S9931 rwfl/ycf

biguity.” Perkins v. City of West Helena, Civil Action No. 81—1516 at 13 (April
13, 1982) . In his dissent in Bolden, Justice White lamented the plurality’s “leav-
(iug) rue courts below adrift on uncharted seas.” Mobile v. Bold , 446 U.S.
55, 103 (White, J .) (dissenting). What is apparent is that traditio al rules gov-
erning inierences i‘rom facts and circumstances, the rules that ke it possible
to prove most civil and criminal cases, do not pertain. The plura ' y demands not
just proof of intent but proof of purpose and motivation.

Whether or It such an exacting standard is appropriate Hr proof of a con-
stitutional viol- ‘on, it is, in my view, too onerous to provide - flicient protection
to the voting ri hts of racial and language minorities, whi rights are in turn
their best sour- of protection from other forms of discr' uination and oppres-
sion. Let us not orget What it is precisely that we are do' g. We are reestablish-
ing a statutory tandard by which to protect against crimination in voting.
The Congress’ p0 er and authority is drawn from the e orcement clauses of the
fourteenth and i teentn amendments and our abilit to enact remedial legis-
lation as has been confirmed by the United States Su eme Court. City of Rome
v. United States, 46 U.S. 156, 173—78 (1980); So Carolina v. Katzenbach,
383 U.S. 301, 325—2 (1966). Accordingly, I favor r ising the Voting Rights Act
to clarify its reach and expressly establish the otality of circumstances test
as that governing sec 'on 2 cases.

The CHAIRMAN. e have nine membe present now.

Senator BAUCUS. \Ir. Chairman, my nderstanding of the rules is
that we need only nin members fora ndments. We have nine. Ten is

- needed only for report g out a bill.

Mr. Chairman, I sug_ est that so of the stafl' check the rules, but
I think the rules do pro 'de that ac . on on amendments may be taken.

The CHAIRMAN. That 5 "ts me b . use a lot of them are absent many
times. I would like to have i at ch ked.

Senator DOLE. I could int i u the amendment.

Senator EAST. Mr. Chairm «

The CHAIRMAN. We have ' e now. These matters are important.
I think they ought to be here : ‘ u hear what the different members have
to say on these matters and 0 th‘ amendments, too.

Senator KENNEDY. As I inde tand, we were going to go through
a discussion period befor any 0 the amendments were considered.
There is no reason that w cannot n a that. I think that that was under-
stood by the members at v e time of e recess.

The CHAIRMAN. Are u ready to go through discussion?

Senator EAST. Mr. O airman '2

Senator HATCH. W a y do we not do t t?

The CHAIRMAN. he committee wi ' come to order. We will go
through the discus on period hoping o .-. more will come in.

Senator EAST. 1'. Chairman, I would ust like to inquire again on
this matter of a ‘ uomm for our discussi s. Every day I restate my
position, which ' am happy to do. I like to t ‘ ink I have been as reason-
able in terms I a willingness to move thi along as anyone can be.
I have only ed for the opportunity to hav- a quorum.

The CHAI- IAN. I think we ought to have. ' is is a very important
measure. B Senator Laxalt has come in nw, and that gives us
a uorum.

nator EAST. That is fine.
The CHAIRMAN. We now have a quorum. We wi croceed. Senator

Q Senator HATCH. Mr. Chairman, I would like to engage in just a little
bit of a dialog with Senator Dole on his amendment. It would be ex-
tremely helpful to me and, I believe, to the legislative history of this

e ~ .

amendment if just a few fundamental matters could be briefly
discussed.

My first question: Representative Sensenbrenner, the author of the
House disclaimer pl‘OVlSlon, testified before the subcommittee that the
proposed results test in section 2 and the efl'ects test in section 5 were
Virtually the same. \Vould you agree with that observation?

Senator DOLE. Let me make two comments. Again, before I make
any comment, I want to thank the distinguished Senator from Utah
for his statement. I know it is a statement made because of his deep
conviction and concern. I would say to the Senator from Utah that I
think most of us have the same concern. That is why I think it is
important that we properly respond to the questions that you have
addressed. I will do that to the best of my ability; but I think, in order
that we make certain that we make a proper record, I might ask, if
nobody objects, an opportunity to maybe more fully address the ques-
tions in separate views or in some other statement.

Senator HATCH. That will be fine with me.

Senator DOLE. The section 5 efi'ects test is different from the results
test of White v. Reg/ester. The House report, as the Senator indicated,
was ambiguous as to Whether the W hite test or the section 5 effects test
should apply. Thus, an added benefit of the compromise that it makes
clear that the White approach should apply by directly codifying
language from that decision in section 2.

So, the answer to that question is no. Under section 5 the burden of
proof is shifted to the covered jurisdiction and the rule of Bemar v.
United States applies, which is essentially where the minority voters
are disadvantaged by change. Under section 2. on the other hand, the
totality of circumstances must be examined in light of the various
factors spelled out in White to determine if the political processes are
equally open.

I would say again I think that is the strength of the change. We are
talking about access and whether or not the system is Open.

Senator HATCH. During the subcommittee hearings, former Assist-
ant Attorney General for Civil Rights Drew Days testified that a
neighborhood that happened to be primarily black would be absolutely
immune to a political gerrymandcr even if that gerrymander were
carried on for partisan or for ideological reasons. Do you agree or
disagee with that View?

Senator DOLE. I do not agree with that.

Senator HATCH. Is it your intent. that your amendment carry for-
ward as closely as possible the test in W'hife v. Ref/ester?

Senator DOLE. Yes. In fact, I anticipated that question might be
asked.

The answer, obviously. is yes. we are carrying forward the White
test. 'We are carrying forward the principle in the TVhife case that the
discriminatory results are determined by examining the totality of the
circumstances. These circumstances do not require a showing of intent.
I could read more fully from the TVha'fe v. Regestm' opinion. but again
I can state that in separate views. .

Senator H.\TcII. Then you are claiming that you are carrying forth
the IVM/c v. Regesfm' test?

- ’ 6D

Senator DOLE. \Ve are carrying forth the White v. Regester test. The
results test used in our compromise is explained in White. It was fol-
lowed for 7 years and did not require proportional representation. It
did not invalid at—large election systems either. .

Senator HATCH. Is it your view that, given the facts as they ex1stcd
in Mobile when that case was before the Supreme Court, that the city
should have been found to be in Violation of section 2 and the 15t 1
amendment?

Senator DOLE. I think my answer to that would be yes, but I would
want to reserve the right to more fully explain it in separate views and
we make the record we want to make.

Senator HATCH. That would be fine.

Does your amendment preclude the courts from imposing propor-
tional representation as a remedy for a section 2 violation?

Senator DOLE. It does not preclude the court. In fact, I might say
that One of the suggestions offered was that we do that by statute. It
has been asked, I guess in effect, why do we not expressly apply this
disclaimer tO remedies? Such language was considered but rejected as
unnecessary. Fears that the court would consider the disclaimer in de-
termining whether there is a violation but ignore it in fashioning the
remedy are unwarranted. It is a well-established legal principle that
remedies must be commensurate with the Violation established.

Senator HATCH. Everything else being precisely equal as far as the
totality of circumstances, if a community with a ward system of gov—
ernment has been found not to be in violation Of section 2, could a sys—
tem that differed only with respect to having an at-large system be in
violation of section 2 under your amendment?

Senator DOLE. It is not my intent that that happen; but. again, I
would want to more fully address that in separate views or in the re-
port itself.

Senator HATcH. Can you share with us a few factors that you be-
lieve would be important to a court in determining whether or not.
“equal opportunity to participate” in the political process of the com—
munity had been denied?

Senator DOLE. I think it gets back to what we consider to be totality
of circumstances. Typical circumstances include a history Of official
discrimination. racist campaign tactics. racial polarity in voting. unre-
sponsive elected Officials. and the use of voting practices or procedures
which enhance the opportunity for discrimination.

Those are just some that we have taken. but there may be other cir-
cumstances. It would depend on the circumstances involved.

Senator HATCH. Is this amendment designed primarily to insure
equal access to the electoral process as Opposed to equal outcome?

Senator DOLE. Yes: equal access. as I have indicated previously——
and. again. I could read directly. In fact. our language. in effect. codi-
fies White v. Ref/ester: 'Were not. equally open to participation; its
members had less opportunity than did other residents to participate
in the political process.

That is precisely what it is addressed to.

Senator HATCH. Under the effects test in section 5. in determining
the impact of an action upon minorities. it is at least possible to com—

pare'the change in law or procedure with the status quo to determine
th1s_1mpact. When we are referring to preexisting circumstances as in
section 2, how do we make these kinds of comparisons in order to
determine whether or not the results test has been satisfied?

Senator DOLE. I think on that question I would want to reserve my
answer until I have looked at that section and the cases, if that is
satisfactory.

Senator HATCH. That will be fine.

Thank you, Mr. Chairman. 0

The CHAIRMAN. Senator Dole, I have a question here.

Senator DOLE. I wonder if I first might Offer the amendment.

[Text follows :]

Strike all after the enacting clause and insert in lieu thereof the following:
fslgré‘éron 1. That this Act may be cited as the Voting Rights Act Amendments
0 .

SEC. 2. Subsection (a) of section 4 of the Voting Rights Act of 1965 is amended
by striking out “seventeen years" each place it appears and inserting in lieu
thereof “nineteen years”.

(b) Effective on and after August 5, 1984. subsection (a) of section 4 Of the
Voting Rights Act Of 1965') is amended—

(1) by inserting “(1)" after “(a)”;

(2) by inserting “or in any political subdivision of such State (as such
subdivision existed on the date such determinations were made with respect
to such State), though such determinations were not made with respect to
such subdivision as a separate unit,” before “or in any political subdivision
with respect to which” each place it appears;

(3) by striking out “in an action for a declaratory judgment" the first
place it appears and all that follows through “color through the use of such
tests or devices have occurred anywhere in the territory of such plaintiff",
and inserting in lieu thereof ”issues a declaratory judgment under this
section.";

(4) by striking out “in an action for a declaratory judgment" the second
place its appears in all that follows through "section 4 (f) (2) through the use
of tests or devices have occurred anywhere in the territory of such plain-
tiffs", and inserting in lieu thereof the following: “issues a declaratory judg—
ment under this section. A declaratory judgment under this section shall
issueonly if such court determines that during the ten years preceding the
filing Of the action. and during the pendency of such actionv

" (A) no .such test or device has been usrd within such State or political
subdivision for the purpose or with the effect of denying or abridging
the right to vote on account Of race or color or (in the case of a State
or subdivision seeking a declaratory judgment under the second sentence
of this subsection) in contravention of the guarantees of subsection
(15} (2) ;

“(B) no final judgment of any court, of the United States, other than
the denial of declaratory judgment under this section, has determined
that denials or abridgements of the right to vote on account of race 01‘
color have occurred anywhere in the territory of such State or political
subdivision or (in the case of a State Or subdivision seeking a declaratory
judgment under the second sentence of this subsection) that denials 01‘
abridgements Of the right to vote in contravention of the, guarantees of
subsection (f) (2) have occurred anywhere in the territory of such State
or subdivision and no consent decree. settlement, or agreement has been
entered into resulting in any abandonment of a voting practice chal-
lenged on such grounds; and no declaratory judgment under this section
shall be entered during the pendency of an action commenced before the
filing of an action under this section and alleging such denials or abridge-
ments of the right to vote: ‘

“(C) 110 Federal examiners under this Act have been assigned to such
State or political subdivision :