Date: 1982-06-18
Speaker: ROBERT C. BYRD (democrat)
Chamber: S

Mr. President. the right to vote is the bedrock of the foundation which supports our representative democracy. Of all of our Nations constitutional protections. including the right to speak freely and the right to assemble freely. the right to vote and to have all votes counted equally is quite probably the most important. Of what ultimate value is the right to have an opinion and to express it to your assembled neighbors if you do not have the opportunity to have that opinion reflected in the processes by which all our citizens are governed? The ability to vote is the ability to be fairly represented by your own elected leaders. it is axiomatic that our political leaders must listen to. and will most ably represent. those who will be voting in the future. Mr. President. I strongly support passage of S. 1992. a bill to extend the Voting Rights Act of 1965. just as I supported it in the Judiciary Committee and voted against all amendments that would have weakened the bill. The Voting Rights Act of 1965 has been widely cited as the most successful piece of civil rights legislation ever passed. It has effectively insured that all citizens shall have an equal opportunity to register and vote and that their votes. once cast. will mean as much as the next citizens. There were some Senators. including myself. when the provision was first suggested in 1965. who were concerned that the act might be ineffective. cumbersome. unfair to the jurisdictions covered under section 5. or of questionable constitutionality. Over these last 17 years. the operation of the act and the resulting success in facilitating the opportunity for minority citizens to freely register and vote have dispelled these concerns and proved the need for the Voting Rights Act. The Supreme Court. in a series of cases beginning with the 1966 case of South Carolina against Katzenbach upheld the preclearance provisions of section 5. As the Court noted: Congress had reason to suppose that States [covered by section 4(b) of the Act] might try [extraordinary strategems of contriving new rules] in the future in order to evade the remedies for discrimination contained in the Act itself. Much progress has been made in correcting the electoral abuses of the past. There has been a dramatic inirease in the number of blacks and H!spanics voting in State. local. and Federal elections. The most blatant abuses of the voting processsuch as poll taxes. literacy tests. or direct intimidation of minority citizens seeking to register or voteare virtually a thing of the past. However. the hearing records of both the House and Senate are replete with more subtle. recent efforts to dilute minorities ability to vote or to have their votes considered as equally significant. Some jurisdictions have closed all places of registration except one. others have located that one place a long distance from the center of the minority population. have shortened the hours when registration is permitted or scheduled them erratically. and have enacted reregistration requirements. Other jurisdictions have sought to negate the meaning of a minority vote by changing from a district voting system to an atlarge system in areas with a high concentration of black voters. by annexing areas with a high white population. by redrawing district lines. or by changing an elective office into an appointed one. The Voting Rights Act is still needed in spite of the progress this country has made. From 1965 to 1980. there were 34.798 submissions to the Department of Justice of proposed changes that required preclearance under section 5. Of these. the Justice Department objected to 815 of the proposed changes as being discriminatory. with over 400 of the total objections occurring within the last 5 years. This would seem to indicate that the number of discriminatory electoral changes has increased. and that the problem still merits careful consideration and corrective action by our Federal Government. H.R. 3112. the House companion bill to S. 1992. which the House passed on October 5. 1981. provided the "preclearance" requirements of section 5 would be extended indefinitely. However. the House Judiciary Committee agreed with the concept of a new bailout provision. introduced by Congressman HENRY HYDE. Republican of lnois. that would reward jurisdictions that had obeyed the existing Voting Rights Law and had taken steps to eradicate any residual abuses of the electoral process during the preceding 10 years. I also favor the committees action in including a fair and achievable bailout to take effect in 1984 for those Jurisdictions covered under section 5. 1 believe that the committees action in permitting individual counties to qualify for the bailout. even though their State does not qualify at that time. is a commendable change which should encourage local jurisdictions to correct any electoral abuses that may still exist. Voting experts. with the corroboration of the Bureau of the Census. estimate that at least 25 percent of the covered jurisdictions will be eligible to ball out under the amended provisions of section 4(a)(1) of the act when they take effect in 1984. To bail out. a jurisdiction must show. for itself end the governmental units within it. that during the last 10 years: First. it has not used a "test or device" in a discriminatory manner. Second. it has not been found by a court to have abridged the right to vote. and it has not been party to a consent decree or settlement agreement resulting in the elimination of a discriminatory voting practice. Third. it has eliminated voting procedures and methods of election that limit minority participation in the political process. Fourth. it has complied fully with the procedures set forth in section 5 of S 71:37 Jume 18. 1982 the Voting Rights Act. for example. it has submitted all changes for preclearance before putting them into effect. Fifth. it has not made a submission within the previous 10 years to which the Department of Justice or the District Court of the District of Columbia has objected. Sixth. no examiners have been sent to the jurisdiction. Seventh. the jurisdiction has engaged in constructive efforts to eliminate intimidation and harassment. and Eighth. the jurisdiction has engaged in constructive efforts to increase opportunities for minority participation in the political process. One of the key issues addressed by this body during the consideration of S. 1992 has been the type of proof requirejd to show that a jurisdiction. not covered under section 5. has a voting law or procedure that discriminates in violation of section 2. When Congress first adopted section 2 in 1965. the report language stated that it was designed to prohibit "any kind of practice * * * if its purpose or effect was to deny or abridge the right to vote on account of race or color." For the next 15 years. all Federal courts including the Supreme Court interpreted congressional intent as only requiring the plaintiff/victim to prove that the effect of a law or procedure was to deny his right to vote. Indeed. the Supreme Court expounded its own "effects test" in the 1973 case of White against Regester. The Court did not address whether the original legislators intended to discriminate when they enacted the challenged.voting procedure. There was no discussion of the purpose behind the challenged system. and no findings of discriminatory intent. Rather. the Court stated quite clearly that: The plaintiffs burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in questionthat its members had less opportunity than did other restdents in the district to participate in the political processes and to elect legislators of their choice. This was the standard in effect when Congress renewed the act in 1975. The Court also expressly stated that this standard of proof did not guarantee a right of proportional representation. However. in 1980 in the case of Mobile against Bolden. a plurality of the Supreme Court decided that since the language of section 2 tracked the 15th amendment. which the Court had recently ruled required a proof of intent to show discrimination. then Congress must have expected a plaintiff to prove that the State legislators and administrators intended to deny his right to vote. This is a much tougher standard to prove. in many cases the principals have been dead for over a century. It also requires digging up ugly. personal motives on who did what for what reason. rather than merely showing that the result of an action was to deny or abridge the victims right to vote. Members 01 the House of Representatives and the Senate Judiciary Committee believe that the Court has misconstrued the legislative history of the section and have added an amendment to section 2 to clarify Congress intention. This amendment reinstates the "result" standard stated by the Court in White against Regester. This standard is whether the result of the challenged practice. in the context of all the circumstances of the political process in that jurisdiction. shuts out minority voters from having a fair opportunity to participate in the process. The Voting Rights Act does not. and cannot. outlaw methods of election. In the past 15 years. courts and the Department of Justice have sustained atlarge elections. annexations. the closing of registration and polling places. and other procedures in some cases and rejected them in others. depending on the totality of circumstances. The committee included language in the bill which explicitly disclaims any intention to seek proportional representation or quotas. I note the language added by the Judiciary Committee on page 17. line 11 of the bill: "That nothing in this section establishes a right to have members of E protected class elected in numbers equal to their proportion in the population." I believe that this standardan "effects" test with an explicit disclaimer of requiring that a jurisdiction achieve proportional representation to prove that it has not violated section 2is the correct standard. I commend the members of the Judiciary Committee for their successful resolution of this difficult issue. The law seeks to protect the right to vote. not the ability to be guaranteed election. Mr. President. approval of the Voting Rights Act of 1982 is certainly one of the most Important legislative achievements of this Congress. With the passage of this bill. Members of the 97th Congress can take great pride in continuing one of Americas finest principlesthe right of all citizens to vote and to have their votes have an equal significance.