IN A SERIES of editorials over the last several months, we have written in support of the House-passed Voting Rights Act, which is now being considered by the Senate Judiciary Committee. The measure has wide support, having been passed by the House by a vote of 389 to 24. Sixty- five senators have cosponsored that version of the bill. Easy passage would be a certainty except for one controversial provision of the bill. This is the language in Section 2 that says you can prove that a voting system is discriminatory by showing that the system excludes minorities from the political process, no matter whether the exclusion was intended or not. The provision was designed to counter Mobile v. Bolden, a case in which the Supreme Court said you had to prove that local lawmakers actually intended to create a disciminatory system. Civil rights lawyers have found it almost impossible to prove this point.
When the Supreme Court decided, in 1980, that intent, as the lawyers say, was the right test, we thought they were right. It seemed to us that cases of blatant minority exclusion from the political process would be settled in the political arena. But we were wrong about that; it hasn't happened.
Moreover, progress in the courts has been brought to a virtual standstill. So it now seems to us that Congress has to break the logjam. It can do this by passing legislation that would allow the courts to look at a number of factors--history of discrimination, nominating procedures, election results, responsiveness of elected officials--in order to judge whether a voting system is discriminatory. These are the criteria the House bill would allow, and they are good ones.
At the same time, Congress has an obligation to make clear that election results alone are not evidence of discrimination. The simple fact that minorities are not elected in proportion to their number does not prove anything. The House sought to make this clear by including language in the bill to this effect. The attorney general, for one, remains unconvinced. In a speech last weekend, he charged that if the House bill were law, courts would move in "whenever election results failed to mirror the racial or language makeup of a particular jurisdiction. The end result could well be quotas in electoral politics."
Such talk can only be a scare tactic, and it should be addressed by the Senate head-on. No one--not even the most ardent of the bill's supporters-- wants the thing to work that way. Nor were quotas imposed by the courts in the early cases using the pre-Mobile standard to which the House bill would return. One witness before the Senate Judiciary Committee--a civil rights litigator--discussed the 23 "voter-dilution" cases that had been decided by federal courts of appeals during the 1970s. Defendants won 13 of these cases and prevailed on some issues in two others, so we know that even a so- called effects standard is not easy to meet. And in 21 of those 23 cases, by the way, the concept of proportional representation, or quotas, was specifically repudiated and neither of the remaining two required such a remedy in any form.
The House bill was designed to make this clear to the judges. The Judiciary Committee's hearing record is full of statements of legal opinion that the bill doesn't authorize court-ordered election results. Since no one wants such results, supporters of the bill should take whatever steps are necessary to reassure undecided senators that they could not occur. Extension of the Voting Rights Act is too important to be jeopardized by a fear that is unfounded.