Although they often disagreed in their interpretations of the Constitution, Sen. Sam Ervin and Justice Hugo Black were agreed on one issue: the Voting Rights Act of 1965 is unconstitutional. Ervin asserted that the act "is utterly repugnant to the basic principles upon which our system of justice rests." Black declared that it reduced the States to "little more than conquered provinces."
In light of recent congressional action, these words of protest, uttered more than 15 years ago, are today a modest understatement. The Senate will soon take up S. 1992, the Voting Rights Act Extension. A companion bill has already passed the House. This legislation, however, goes far beyond a mere extension of the 1965 act. In essence, it seeks a fundamental alteration of the Constitution and the American democratic system by changing the right to vote from an individual right to a right of group representation for minorities. This radical restructuring of our political system is to be accomplished not by a constitutional amendment but by legislative repeal of the Supreme Court's decision in City of Mobile v. Bolden.
In that 1980 decision, the court held that Section 2 of the act and the 14th and 15th amendments all required proof that the voting law or practice in question had been based on discriminatory intent. The court rejected the claim that political groups have an independent constitutional right to representation, and ruled that Mobile did not have to change its electoral system in order to guarantee the minority population a share of elected officeholders. Hence the claim "that the Constitution somehow guarantees proportional representation" was groundless.
Insisting that Mobile was incorrectly decided, the Senate Judiciary Committee has added a so-called "compromise" amendment to Section 2 that substitutes a new and ambiguous "results" test for the current "intent" test. Despite the assurances of the amendment's supporters, it is clear that the new language is unconstitutional; and if it survives constitutional attack it will serve as an open invitation to federal courts to impose a system of proportional representation throughout the country. For even though the amendment declares that this legislation shall not establish a right of proportional representation, it contains no language that would in any way preclude a court from mandating such a system as a remedy. Indeed, analogous disclaimer language in Title VII of the Civil Rights Act of 1964 has not prevented courts from using affirmative action as a remedy.
As Prof. William Van Alstyne of the Duke University Law School has noted, "The amendment must invariably operate . . . to create racially defined wards throughout much of the nation and to compel the worst tendencies toward race-based allegiances and divisions." No less alarming is the likelihood that the vote dilution rationale of the "results" test will impede the efforts of metropolitan areas to broaden their tax base through annexation, thereby weakening the economic base of our inner cities and preserving their ghettoes.
Resistant to notions of reason and fairness, the supporters of S. 1992 have also doggedly refused to make any needed improvements in a law that is regional in application and punitive in nature. Good public policy provides incentives and rewards for compliance with the law. But bail-out is still an impossibility, and all of the covered jurisdictions, including those that have scrupulously obeyed the law, will be arbitrarily chained to the onerous pre-clearance requirements for another quarter-century. Though contrary to the principles of Anglo- American jurisprudence, the reversed burden of proof will continue to rest on the targeted states, and their elected officials must still come to Washington, with hat in hand, to litigate disputes, because their local federal courts are not permitted to hear the case.
Instead of merely extending certain provisions of the act to protect voter access to the ballot, the proponents of S. 1992, it may thus be seen, have preserved intact all of the vindictive features of the original legislation, while at the same time propelling the entire nation headlong into proportional representation. What was once a well- intentioned effort to increase black voter participation has now become a reckless and revolutionary departure from the basic tenets of American constitutional democracy.