The MacNeil/Lehrer Report; Voting Rights Act

[Tease]

Pres. RONALD REAGAN [State of the Union speech]: Some will also say our states and local communities are not up to the challenge of a new and creative partnership. Well, that might have been true 20 years ago before reforms like reapportionment and the Voting Rights Act -- the 10-year extension of which I strongly support; it's no longer true today. Our nation's long journey towards civil rights for all our citizens -- once a source of discord, now a source of pride -- must continue with no backsliding or slowing down. We must and shall see that those basic laws that guarantee equal rights are preserved and, when necessary, strengthened.

ROBERT MacNEIL: President Reagan supports the Voting Rights Act, but some people feel the way he supports it may weaken it.

[Titles]

MacNEIL: Good evening. The Reagan administration has had a hard time recently convincing people that it is not orchestrating a broad retreat on civil rights. It was reported today, for instance, that more than half of the lawyers in the Justice Department's civil rights division had protested the administration's decision last month to restore tax exemptions to private schools that discriminate. This afternoon the Justice Department said those lawyers who didn't like it were welcome to leave. That is one flap over civil rights policy. Another has occupied the Congress this week; that is what the administration wants to do to the Voting Rights Act. This 1965 law is considered by many the single most important piece of civil rights legislation in the nation's history. Key parts of it expire in August and the President agrees with most members of Congress that those sections should be extended. But there's sharp disagreement over how. And most of the recent debate has centered on how to prove discrimination. The House of Representatives has passed a version which only requires those bringing suit to show that changes in voting laws resulted in discrimination. The administration wants to keep the current test, which requires proof that states and localities actually intended to discriminate. So, tonight, voting rights and proving discrimination. Jim Lehrer is off; Charlayne Hunter-Gault is in Washington. Charlayne?

CHARLAYNE HUNTER-GAULT: Robin, the current debate over how to prove discrimination goes back to a 1980 Supreme Court decision involving a voting rights case in Mobile, Alabama. In that case, which involved a challenge to an at-large election system, the Court ruled that it was necessary to prove the drafters of the law in question consciously intended to discriminate against blacks seeking office. The Justices said that discrimination could not be proved simply by showing that no blacks had been elected to the city's commission although blacks made up one-third of Mobile's population. It is because of this ruling that the House recently passed its bill requiring that courts only consider whether an election procedure results in discrimination. For a fuller explanation of why the administration opposes the bill, we go to the man in charge of the Justice Department's civil rights division. He is Assistant U.S. Attorney General William Bradford Reynolds. Mr. Attorney General, welcome. Why doesn't the administration support banning election procedures that have the effect of discriminating by race?

WILLIAM BRADFORD REYNOLDS: Let me start by saying that the administration does support wholeheartedly extension of the Act as it presently is. That Act does include as one section, Section 5, a provision that does have an effects test in it for certain covered jurisdictions. And we do not propose any change in that provision. It also includes, in Section 2, a provision that requires an intents test. That provision has been construed to include an intent test since 1965. We do not see any indication in the House hearings at all of a record that would suggest a need for a change in the existing standard as it is in Section 2, and we feel that if the Section 2 standard is changed to include an effects test, it has some dramatic ramifications.

HUNTER-GAULT: Like what, for example?

Mr. REYNOLDS: It would apply not simply to voting changes, but it would apply to all existing electoral systems that are in place, and it would apply nationwide.

HUNTER-GAULT: What would be wrong with that?

Mr. REYNOLDS: And the problem that we see with the test is that it focuses on election results, and it determines what is or is not in compliance with the Act based on the results of elections that take place. That would have as certainly one of the available consequences that you would determine whether or not you had proportional represenation in the election result. And the effects tests as applied under Section 5 leads one to the conclusion that it would be a violation of the law if you had a disproportionate result in the election. We think that the Voting Rights Act, which is an enactment of the Fifteenth Amendment, addresses the right of every individual to have a vote. It does not have as one of its guarantees the right to elect whoever you vote for. And I think a fundamental change in the law in Section 2 would change the emphasis from the Fifteenth Amendment guarantee of an individual's right to vote to an individual now having a right to have that vote wind up resulting in a particular person they vote for being elected. And we feel that that is contrary to what the Fifteenth Amendment prescribes. Certainly Congress, in 1965, when it enacted Section 2, said it was supposed to be an extension -- codification of the Fifteenth Amendment protection, and to introduce now an effects tests without any kind of record that's been developed to show a need for it, changes the focus of the constitutional protection and clearly changes the focus of the statutory protection.

HUNTER-GAULT: Well, the law has been in effect for 17 years. What evidence is there that such an effect as you just described would result from the House bill?

Mr. REYNOLDS: Well, I think that -- it's interesting. The law has been in effect that long, and there is no indication under Section 2, because Section 2 has had an intents test and that has been the test that has been applied. Under Section 5, where you have an effects test, certainly with respect to the standard the courts have imposed in that area on evaluating annexations, it clearly would -- the Richmond case is one, Petersburg case is another. Certainly one would be led to the conclusion from that that proportional representation would be the standard that would be controlling. Again, with redistrictings and those kinds of voting changes, the standard that the court has looked to is a retrogression standard, primarily, but that also is driving toward, in an unnatural way, proportional representation as the end result.

HUNTER-GAULT: All right. We've just about run out of time, but I do want to ask you to answer very briefly the critics' charge that this intents test that you are now proposing is just an impossible standard to prove.

Mr. REYNOLDS: I have heard that charge. I think that that really does not fairly represent what the courts have said, particularly in Mobile and certainly in other areas, about what the standard of proof is for meeting the intent test. You can prove intent -- and the Court said this in Mobile -- by indirect evidence as well as direct evidence, that it is not necessary to find the smoking gun, that is, the written statement that somebody has a discriminatory intent, but indeed you can look to effects in order to determine, as one of the elements of your equation, whether an intent does exist. And so both indirect and direct evidence and, indeed, evidence of effects, bear on the total question of intent.

HUNTER-GAULT: All right. We'll come back. Robin?

MacNEIL: Now the view of a veteran civil rights litigator. Armand Derfner is an attorney with the Joint Center for Political Studies, a Washington-based research organization. And he directs the Center's project on voter law policy. Mr. Derfner, what's your reaction to the administration position?

ARMAND DERFNER: I think it deals with a very different Act than I'm familiar with. I've been litigating these cases since almost 1965 and there's no question in my mind that the Mobile decision in 1980 was a dramatic reversal. In fact, there's no question in my mind because we had a case in Edgefield County, South Carolina, which we won on April the 17th, 1980 -- five days before the Mobile decision came down. Judge Robert Chapman, who in fact was appointed by President Nixon and has recently been promoted to the Court of Appeals by President Reagan, decided that there was such blatant discrimination in every aspect of the electoral and political system in Edgefield County that he declared it unconstitutional and said it was unfair to black voters.

MacNEIL: And he did not require that you prove that they intended to achieve that result, just that it was there?

Mr. DERFNER: Exactly so. Five days later the Supreme Court decided the Mobile case and decided that intent was necessary to prove. And after that decision, Judge Chapman was forced to withdraw that decision and say that, unfortunately, even though the facts were the same, the discrimination was just as blatant, he was forced to find against the plaintiff because there had been no showing of intent.

MacNEIL: Now, so that I understand this clearly, is the version that the House passed based on just showing the effects, is that a change in the existing law, the status quo, or is it the administration position that seeks to change the existing law -- the status quo -- based on the Mobile decision?

Mr. DERFNER: Well, the House-passed version is faithful to the standard that was in effect up until 1980 when the Mobile case came down. In fact, until that time, the law was essentially based on the Supreme Court case of White v. Register which involved elections in Texas, in the State House of Texas. That was the standard that was in effect, as I say, during the 1970s under which we litigated. It was a difficult standard, by no means did it make it easy to prove -- you could not prove discrimination simply from looking at election results or from looking at a few things. What you had to do was to prove that through the length and breadth of the election or political system of a particular city or county, that it was not simply that minorities did not simply lose or were not simply unsuccessful, but that the election system is essentially stacked so they could not win.

MacNEIL: What would be --

Mr. DERFNER: So they were doomed to repeated defeats.

MacNEIL: What would be wrong with a standard which forced people to prove an intent to discriminate, in your view?

Mr. DERFNER: The record shows that it's simply almost impossible to do. In Mobile, Alabama, the at-large election system there was adopted in 1869. I don't know any way on earth that we would be able to prove what was in minds of the people in 1869. Unless -- to use the phrase -- unless a smoking gun were to come forward in the case of a confession of somebody who was responsible for legislation 20 years ago or 30 years ago, there's virtually no way to prove it. And, in fact, Representative Caldwell Butler of Virginia, who has been one of the staunchest opponents of the Voting Rights Act, or certain aspects of it, said himself in his remarks in The House Report that the Mobile test requires a smoking gun. Because of that, I might add, because of that -- that is why there is really no danger that this results test, which, as I say, is the White v. Register test that prevailed for the decade before Mobile, that that would apply the length and breadth, or to the extent that we've heard. It's a limited test. In fact, I might say that the Justice Department has a list of the cases that were decided under that during the -- since 1974. This list is 10 cases long. So the notion that this is an all-out attack on elections systems everywhere they're found seems to me very much of a red herring, as does the notion of proportional representation, because I've been litigating these cases for many years. I've been reading the cases for many years -- every case -- White v. Register itself did it; other cases did it, said, "Proportional representation is not required, is not called for, is not the standard, is not approved." The House Report itself says the very same thing, and I think the proportional representation notion is a scare; it's a red herring. It doesn't make any sense in terms of the real facts.

MacNEIL: Well, thank you. Charlayne?

HUNTER-GAULT: Now to one of the administration's staunchest defenders on this issue. He is Utah Republican Senator Orrin Hatch, who chairs the Senate Judiciary Subcommittee. The hearings on extending the Voting Rights Act are currently before that committee. Senator, why would the administration intent test be better than the House's bill?

Sen. ORRIN HATCH: Well, I don't think, and I think Ronald Reagan feels the same way, that anybody should be branded a racist unless some proof that they intended to discriminate. And frankly, the effects test would allow a wholesale branding of whole communities as racist even though there was no intent to discriminate. I might mention that the real purpose of trying to go to the effects tests -- and I would -- I have yet to have a witness in front of our committee on either side of this issue show that under Section 2 of the Voting Rights Act that that has been an effects test standard up 'til Mobile v. Bolden. Now, the Supreme Court in Mobile v. Bolden said that it's always been an intents standard, and I have yet to have them show me what Mr. Derfner just got through saying. As a matter of fact, there would be 12,000 communities across the board in the United States, in every state of the union, which would be affected by having an effects test in Section 2, and every at-large voting district in this country would be ultimately, over a period of time, attacked on the basis that if there's 35% blacks in that at-large voting district, blacks ought to represent blacks and whites ought to represent whites. And I disagree with that. I think it's wrong.

HUNTER-GAULT: You just heard Mr. Derfner say that that's really a red herring, that it wouldn't apply that broadly.

Sen. HATCH: No, it isn't a red herring. That's what the whole Bolden case was all about. The Bolden case actually was about at-large voting districts where blacks had not been elected even though they had a significant leverage in the district because they had a significant percentage of the total population. And their argument was that -- their argument was that, "Since we have such a percentage, we ought to have at least one of these blacks or two of these -- one of these posts or two of these posts on single-member-district bases." And I think what their argument is -- what their argument was for was basically the creation of political black ghettos where they could have guarantees that blacks would be elected to public office. Now, the Supreme Court in Mobile said that nobody has a right to a guarantee to be elected. In other words, you have to run yourself. And these 12,000 jurisdictions would be attacked, every one of them, because all you would have to show in order to invoke Section 2 as presently written -- all you'd have to show is an at-large voting situation and one other scintilla of evidence such as some discriminatory conduct by that community in the past, and you invoke Section 2.

HUNTER-GAULT: And that's what you think would happen if the House version was adopted?

Sen. HATCH: I don't think that would happen, I know that's what would happen; and many expert political scientists, lawyers and others have come in and said that's exactly what would happen, and that's the sole reason for having the effects tests rather than the intent test. And I agree with Mr. Reynolds that with regard to the intent test, we prove intent every day. In every criminal case in this country beyond a reasonable doubt.

HUNTER-GAULT: All right.

Sen. HATCH: Now,in these cases, yes, you'd have to prove intent by direct evidence, indirect evidence, circumstantial evidence or otherwise including --

HUNTER-GAULT: But you think it'd be --

Sen. HATCH: -- the use of effects or disparate impact. You can use all of that, bue effects and disparate impact standing alone are not allowed to brand somebody a racist in our society.

HUNTER-GAULT: All right, the vote in the House was 389 to 24. Now there are 62 co-sponsors in the Senate. What makes you optimistic that you can turn that around?

Sen. HATCH: Well, number one, the 62 co-sponsors were represented by the principal sponsors of the bill, that this was a simple extension of the Voting Rights Act which, six months ago, every civil rights authority and person was for. And I've been for and I've been pushing for that. I believe in the Voting Rights Act. I believe in civil rights. But now that they think they can get this effects test and attack up to 12,000 jurisdictions in this country, of course they've changed their viewpoint. And we've had at least two members of Congress who voted for it in the House come in and indicate that there was a tremendous intimidation in the House that any amendment was considered to be an anti-civil rights amendment even though the amendments were basically well thought out and would have been good amendments to this bill.

HUNTER-GAULT: If in the event that you can't stop this bill, though, in the Senate, do you think the President will veto it?

Sen. HATCH: Well, let's put it this way. I don't intend to stop an extension of the Voting Rights Act. I'm totally for that.

HUNTER-GAULT: But this aspect of it?

Sen. HATCH: But if we can't win on this aspect, I don't know what the President will do until he looks at it. But I think it would be a catastrophic, disastrous approach to literally thousands of communities throughout this society and our whole voting system to have proportional representation become a norm. And I think it'll be very harmful to black people --

HUNTER-GAULT: And you feel --

Sen. HATCH: And the hispanics in America because they would then be pushed into single-member districts where they're all black or all hispanics or a mixture where neither of them are very -- maybe -- where they may have conflicts between the two different minority groups, and in the process we have even more discrimination, even more segregation, even more difficulty than we've had in the past.

HUNTER-GAULT: All right. We'll come back. Robin?

MacNEIL: The National Association for the Advancement of Colored People has testified before Senator Hatch's subcommittee that it opposes both his and the administration's positions. Althea Simmons is director of the NAACP's Washington office. As a young civil rights worker she headed the Association's voter registration drive in Jackson, Mississippi, in 1965. Ms. Simmons, you heard what the Senator just said that, if the effects standard is passed, whole communities will be branded unfairly as racist. What do you say to that?

ALTHEA SIMMONS: I disagree with that wholeheartedly.I also disagree with the fact that the civil rights community has wholeheartedly said they wanted a simple extension. The civil rights community has said from the onset we wanted to be certain we kept Section 5 pre-clearance, that we were disturbed about Section 2 -- the intents standard, that also we wanted to have the bilingual provisions brought into synch with the rest of the Voting Rights Act. So that that is not a simple extension and that has been represented to not only the Senate, to the House, to the administration, and we've met with the Justice Department three times and we've said this three times. So that has not been our position and it still is not our position.

MacNEIL: What would happen if the intent standard that the administration and Senator Hatch want became law? Or was expanded as the principle?

Ms. SIMMONS: If it were expanded, as Mr. Derfner has said, it means then that it'd be almost impossible for us to actually prove intert.

MacNEIL: The Senator says that every day in the law intent is proved.

Ms. SIMMONS: We have a disagreement with reference to that. As a matter of fact, if I just take Jackson, Mississippi, a place where I have done voter registration, or South Carolina or Alabama, where you actually will not find in the records, I do not believe, that persons will say, "We intended to discriminate and therefore we've kept blacks and other minorities from going to the ballot boxes." You won't find that kind of proof. So the hard -- then would we be able to prove an intent standard? You'd need to have an effects test because we can show the effects of discrimination, and you can show effects of discrimination without calling a person a racist.

MacNEIL: Well, does it mean that if you found it hard to prove -- intent -- that communities which did practice racial discrimination in their voting laws would be able to get away with it? Is that the thrust of your argument?

Ms. SIMMONS: Yes, I do believe that. As a matter of fact, I would venture to say that if, for example, the Voting Rights Act was not extended that you would have a return to what we had pre-1965 in terms of the kinds of practices being used. As a matter of fact we had information from our branches across the country with reference to the kinds of practices not in existence even though we do have, for example, the Voting Rights Act. You have racial gerrymandering of district lines. You have insufficient voting hours and facilities. You have roving changes of places to register and to vote, or changes of election places overnight. You have the lack of availability, for example, of registrars outside the 9 to 5 hours. Now, that is with the Voting Rights Act. And I can just see, if we did not have that kind of protection, that you would have a tremendous return to what I call pre-1965 business as usual.

MacNEIL: Well, thank you. Charlayne?

HUNTER-GAULT: Is that right, Mr. Attorney General? Business as usual, pre-1965?

Mr. REYNOLDS: Since the administration is endorsing an extension of the existing Act, which has been in effect since '65, I'm not sure I understand how you could get into a situation where you would have a pre-1965 parade of horribles that would ensue.

HUNTER-GAULT: Well, because for one thing her argument is that -- in disagreement with both of you gentlemen -- that the intent test is impossible to prove.

Sen. HATCH: Well, can I -- can I --

HUNTER-GAULT: You know what she said about -- well, let me just get the Attorney General on that.

Mr. REYNOLDS: Let me say two quick things about that.One is that Mr. Derfner referred to White v. Register. White v. Register was not a Section 2 case. It was a Fourteenth Amendment case, a dilution case, and indeed the Court looked for intent in that case. And if that is the case that they are saying has been the driving force in this area, I would say that the intent test has been in place since 1965. I maintain that it has been, and White v. Register would certainly not indicate that it has not been since White v. Register was not even a Section 2 case.

HUNTER-GAULT: Mr. Derfner?

Mr. DERFNER: White v. Register was a dilution case. I was in the case; I've read it many times since. It does not require intent. There's no question about what it does require. We proved that and that was the standard before 1980.

HUNTER-GAULT: How could there be such a difference in opinion --

Mr. REYNOLDS: You say that was a Section 2 case?

Mr. DERFNER: No, it was not a Section 2 case.

Mr. REYNOLDS: It was not a Section 2 case. That's the point I was making.

Mr. DERFNER: No, it was not a Section 2 case, but it was a Fourteenth and Fifteenth Amendment case and the principles are the same.

HUNTER-GAULT: But the point is he says that this intent test which you now oppose, the two of you, has been in effect since 1965.

Mr. DERFNER: This is not so. I've been litigating the cases. We never proved intent in White v. Register, and there was no proof of intent there. There is no question about it. In fact, the Edgefield County case that I was pointing to is to me the proof of the pudding. We didn't prove intent. We won it on April 17th, we lost it after April 22nd.

HUNTER-GAULT: What about the point that you can't go back into the minds of those people who wrote these laws in the 1890s and so on?

Sen. HATCH: You don't have to. Keep in mind my point that on all criminal law cases you have to prove intent beyond a reasonable doubt, so --

[general argument]

Sen. HATCH: Now, wait, let me finish my comment. There have been two major cases since the Mobile case and I think we need to clarify something. The Supreme Court has said that the law is that in all Fifteenth Amendment cases and Section 2 cases, you have to prove intent. That's what Mobile says. I might add that since the Mobile case there have been two major civil rights cases where the civil rights plaintiffs have won -- the Escandia [sic-Burke] County case and the Lodge v. Buxton case. In both of those cases intent was proven. And it's not so difficult to prove intent. And keep in mind, in these cases you don't have to prove intent beyond a reasonable doubt. You just have to prove intent by a preponderance of the evidence, and you can use circumstantial evidence to do it, and I'm telling you if the things that Mrs. Simmons indicated are in existence, there's no reason in the world why a competent attorney can't show the intent and the inference of intent as a result of the discriminatory conduct that occurred.

HUNTER-GAULT: Let me just -- all right, can you respond to that briefly because I want to get to a response on --

Mr. DERFNER: Yes, the Escandia County case is a fortunate smoking gun case; the Lodge v. Buxton case, the Supreme Court took the appeal, stayed the judgment, and there's grave doubt about whether that case will survive.I think if Senator Hatch would come with us to Edgefield County, to Thomas County, Georgia, to Jackson, Mississippi, to Columbia, South Carolina, he would not be saying so confidently that we can prove these cases.

HUNTER-GAULT: Well, what about his confidence in the fact that this effects test will be catastrophic, that it will result in more discrimination, more segregation, and will really ghettoize black voters, and that that's what blacks are really after?

Mr. DERFNER: The test that we are looking for is a return to White v. Register which applied only in those egregious situations where the system absolutely locked out minority voters. And all that's looked for -- all we want is an opportunity, some kind of access to the political system. We're not looking for anything more. We're looking for people to be able to win and lose elections on their merits and not be locked out.

HUNTER-GAULT: But the Attorney General says you're looking for a guarantee that people will be elected as well as have an opportunity to vote.

Mr. DERFNER: Well, obviously he's not reading the cases which say that's not so. The House Report, which says time after time proportional representation is not what's called for -- were the prior cases. And the point is, if you read those things, then you're looking at fact and not suppositions or red herrings. The problem with red herrings is no matter what kind of extravagant statements you make they seem to take a life of their own.But they're not tied down to the facts.

HUNTER-GAULT: Do you have a final word, Senator?

Sen. HATCH: Can I make a point on that is that, you know, on these particular cases everybody thinks that it's so difficult to prove, but they have been able to make the proof in these particular cases and, frankly, before you can brand people as racists, you ought to be able to prove intent. And intent can be proven and it can be proven by circumstantial evidence.

HUNTER-GAULT: On that note of obvious disagreement we have to leave it there. I'm sorry. Robin?

MacNEIL: Yeah, Ms. Simmons, Senator Hatch, Mr. Derfner and Mr. Attorney General, thank you for joining us this evening. Good night, Charlayne.

HUNTER-GAULT: Good night, Robin.

MacNEIL: That's all for tonight. We will be back tomorrow night. I'm Robert MacNeil. Good night.