On March 20, The Post published the latest in a confusing series of editorials on the appropriate test for challenging election systems under Section 2 of the Voting Rights Act. The existing act, which the Reagan administration believes should be extended, requires proof of intent to discriminate. A bill that has passed the House, however, would change the Voting Rights Act and focus not on intent to discriminate but on "effects" or "results." Numerous authorities and commentators have expressed deep concern that a "results" test could gradually impose a system of proportional representation based on race -- a quota system for electoral politics. Judging by its own editorials, the response of The Post to this concern is: yes, no, maybe.
In its April 1980 decision in Mobile v. Bolden, the Supreme Court explained that Section 2 of the Voting Rights Act required proof of discriminatory intent. In that case, Justice Potter Stewart warned that the theory of the dissenting opinion, which embraced the results test, "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 proportion to its numbers."
The Post agreed with Justice Stewart's concern. On April 28, 1980, it concluded that the court was correct to reject challenges based on the results test. "By opting for intent," The Post reasoned, the court "has... avoided the logical terminal point of those challenges: that election district lines must be drawn to give proportional representation to minorities.
On Dec. 20, 1981, however, The Post changed its tune. It then supported the recently passed House bill to overturn Mobile. The Post rejected President Reagan's expressed concern that the results test could mandate proportional representation based on race -- exactly what The Post had earlier stated was the "logical terminal point" of that test. The Post pointed to a clause in the bill that, supporters claim, guards against proportional representation. It does not do so, but in any case, if proportional representation is the "logical" end of the results test, as The Post claimed, it is difficult to see how any disclaimer clause can be effective. The disclaimer either completely repeals the results test, or is meaningless. The Post nonetheless urged the president to "stop objecting and join the celebration."
On Jan. 26, 1982, The Post again editorialized in support of the House bill, claiming now that the bill would merely return the law to where it had been before Mobile changed it -- and citing cases that did not support that proposition. As The Post explained in yet another editorial, on Feb. 11, "we believe Mobile set a new and unnecessarily tougher standard for the courts to use in determining whether a particular system is discriminatory." The Post's original editorial -- the one that agreed with the [Mobile ] decision -- somewhat oddly made no reference to this supposed "change" in the law. This suggests the new argument that Mobile changed the law is a hastily devised smokescreen to obscure the dramatic change proposed by the House bill.
In its latest editorial effort, on March 20, The Post brands my expression of concern that the results test could lead to proportional representation -- its own argument at one point -- as a "scare tactic." But, at the same time, it acknowledges that no one wants proportional representation and urges House bill supporters to "take whatever steps are necessary to reassure undecided senators" that proportional representation -- according The Post, the "logical terminal point" of the results test -- will not be compelled by that test. Perhaps The Post is beginning to recognize -- as it once did -- that the results test could lead to proportional representation. At least The Post is no longer facilely urging those with such concerns to "stop objecting and join the celebration."
The Post contends, however, that it is "almost impossible" to prove intent -- even though the intent test is the standard test in civil rights law and many other areas as well, and is often met in the courts. According to The Post, the House bill "would allow the courts to look at a number of factors -- history of discrimination, nominating procedures, election results, responsiveness of elected officials." As Justice Stewart made quite clear in Mobile, however, that is already true under the intent test. A "smoking gun" is not required and intent may be proved by indirect and circumstantial evidence, including evidence of the sort cited by The Post.
There is of course nothing wrong with the situation in which freely cast votes happen to elect minorities in proportion to the number of minorities in the electorate. What is disturbing, however, is a legislative effort to compel reorganization of electoral systems to guarantee such a result, on the basis of the abhorrent notions that blacks vote only for blacks and whites only for whites. As a society, we have moved well beyond that.
This administration fully supports extension of the Voting Rights Act -- for an unprecedented 10 years. The Post, by contrast, supports the House bill and changes in the act. Congress has a choice. It can continue the protection of the most successful civil rights law ever enacted, or it can embark the nation on a perilous and divisive experiment with a new standard. The right to vote is too important to be subject to such experimentation.
We are pleased that The Post is urging Congress to take whatever steps are necessary to guarantee that proportional representation is no compelled. The best way to do that is to extend the act as is.