the examiners are to serve and for what length of time. The procedures of section 13 for the termination of examiners apply when examiners are used under section 3(a). Section 3(b) authorizes the court to suspend the use of tests and devices. Because of the national suspension of tests and devices contained in the 1970 Amendments of the Voting Rights Act, this authorization does not provide an additional remedy at this time. If the national ban were allowed to expire it would again become important. Section 3(c) authorizes the court to order a preclearance remedy identical to that contained in section 5 of the act. The jurisdiction may either submit changes to the Attorney General, as is the case under section 5, or to the court that ordered the remedy. Unlike section 5, section 3 (c) does not utilize the District Court for the District of Columbia. The court determines the length of time during which preclearance will be required. Section 8 of the Voting Rights Act authorizes the Attorney General to request the Civil Service Commission to send Federal observers to any political subdivision in which a Federal examiner is serving. The use of observers is authorized whether the county was designated for examiners by the Attorney General under section 6 or the court ordered the use of examiners under section 3(a). While the courts have not yet interpreted section 3, the language of the section and the nature of the remedies indicate that the court has discretion in granting section 3 remedies. The court would not grant a particular remedy unless it would be a cure for the type of discrimination found. On the other hand, subsections (a), (b), and (c) all use the word "shall". This makes it clear that if the remedy is appropriate, it is the duty of the court to grant it. Section 3 remedies can only be used in proceedings instituted by the Attorney General. This includes not only cases brought initially by the Attorney General but also cases in which the Attorney General intervenes. It does not include, however, cases brought solely by private parties. The 10 years since the passage of the Voting Rights Act have shown the continued importance of private enforcement of the 15th amendment. This importance was recognized by the Supreme Court in Allen v. State Board of Education, 393 U.S. 544, 556 (1969), with reference to section 5: "The achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and to subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the $5 approval requirements." [footnotes omitted.] It is consistent with the purposes of the 15th amendment and of the Voting Rights Act and consistent with Allen to amend section 3 to allow the special Voting Rights Act remedies to be used in private litigation. Section 402 provides for attorneys' fees in voting rights cases. Such a provision was recommended by the U.S. Commission on Civil Rights in its January 1975 report The Voting Rights Act: Ten Years After. (Recommendation 14, page 353.) The Commission explained that "Much of the burden of voting rights litigation has fallen on private parties. The litigation is expensive and the individuals and organizations who are parties to it often cannot bear the sustained financial strain." As it is presently drafted section 402 might be too broad in two ways. First, it would apply in any case enforcing voting rights under the 14th or 15th amendments. While this may be beneficial, it would apply to many cases in addition to those involving voting rights violations resulting from discrimination based on race, color, or membership in a language minority group. Secondly, it could conceivably result in persons bringing suits to enforce their rights under the Voting Rights Act being required to pay the opposition's attorneys' fees if the suit is unsuccessful, a result not consistent with the purpose of the provision. There are many statutory provisions providing for attorneys' fees.' Some are specifically drafted to restrict fees to parties who are members of the class pro 1 The various statutory provisions are compiled in M. F. Derfner. Attorneys' Fees in Pro Bono Publico Cases Appendix A (Washington, D.C.: Lawyers' Committee for Civil Rights Under Law, Aug. 1972 with three supplements). tected by the statute in question. Others are written in such a way that any party might receive fees but usually are intended and interpreted to be for the benefit of the protected class. Examples of the first kind-those which only benefit members of the class protected by the statute-are the following: Packers and Stockyards Act § 309 (f), 7 U.S.C. § 210 (f); Clayton Act § 4, 15 U.S.C. § 15; Fair Housing Act of 1968, § 812. 42 U.S.C. § 3612(c); Railway Labor Act § 3, 45 U.S.C. § 153(p); Interstate Commerce Act § 16, 49 U.S.C. § 16(2); Organized Crime Control Act of 1970 § 901 (a), 18 U.S.C. § 1964 (c); Truth-in-Lending Act § 130, 15 U.S.C. § 1640; Emergency School Aid Act of 1962 § 718, 20 U.S.C. § 1617; Housing and Rent Act, 50 U.S.C. § 1895. Examples of the second kind-those which could result in either party receiving attorneys' fees-include the following: Securities Act of 1933 § 11e, 15 U.S.C. $77k (e); patent infringement suits, 35 U.S.C. § 285; Civil Rights Act of 1964 § 204, Title II, 42 U.S.C. § 2000a-3 (b); Civil Rights Act of 1964 § 706, Title VII, 42 U.S.C. § 2000e-5k; Agricultural Fair Practices Act of 1967 § 6, 7 U.S.C. § 2305 (c); Clean Air Act § 304, 42 U.S.C. § 1857h-2(d). Even if the attorneys' fees provision were drafted so that it did not exclude the possibility of a court's awarding fees to the party that has been charged with violations of the Voting Rights Act, the courts can be expected to interpret such a provision for the benefit of the class protected by the act. Awarding fees to the other party could significantly deter minority group members from bringing suits for fear that they would have to make a large payment if they were unsuccessful. There is no danger that an attorneys' fees provision would stimulate frivolous litigation, for if the aggrieved party lost the suit it would still have its own attorneys' fees to pay. The rationale for statutory provisions providing for attorneys' fees was explained by the Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968), a case brought under the public accommodations title of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3 (b): "When a plaintiff brings an action under [Title II] he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general, vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees-not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II. "It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust. . . .' In Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427 (1973), the Supreme Court interpreted section 718 of the Emergency School Aid Act as it had Title II: "The similarity of language in $718 and $ 204(b) is, of course, a strong indication that the two statutes should be interpreted pari passu. Moreover, 'the two provisions share a common raison d'etre. The plaintiffs in school cases are "private attorneys general" vindicating_national policy in the same sense as are plaintiffs in Title II actions. The enactments of both provisions was for the same purposes-"to encourage individuals injured by racial discrimination to seek judicial relief. Johnson v. Combs, 471 F.2d 84, 86, (CA5 1972), quoting Newman v. Piggie Park Enterprises, Inc., supra. at 402. We therefore conclude that, as with § 204 (b), if other requirements of $ 718 are satisfied, the successful plaintiff 'should ordinarily recover an attor ney's fees unless special circumstances would render such an award unjust.*** Given the widespread use of provisions that specifically provide for attorneys' fees only to parties that are members of the class protected by the statute, given the statutory purpose of enforcing rights under the Constitution, and given in general the inequality of resources between minority group members and governmental bodies, it would be appropriate for section 402 only to provide aftorneys' fees for members of the protected class. The following language is therefore recommended for section 402: "SEC. 402. Section 14 of the Voting Rights Act of 1965 is amended by adding at the end thereof the following new subsection: “'(e) Upon the entry of a final order by a court of the United States against a State or political subdivision of a State or an officer of a State or political subdivision of a State under this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.' This section follows the language of section 718 of the Emergency School Aid Act of 1962, 20 U.S.C. § 1617 (as amended in 1972). Section 403 reenacts, with modifications. Title VIII of the Civil Rights Act of 1964 as section 207 of the Voting Rights Act of 1965. It would require the Bureau of the Census to conduct surveys of registration and voting by race. In its January 1975 report The Voting Rights Act: Ten Years After the U.S. Commission on Civil Rights recommended that such surveys be carried out. (Recommendation 17, page 355.) Section 207, however, has several problems. Title VIII, which has never been implemented, authorizes an examination of voting in primary as well as general elections, while section 207 is restricted to general elections. The authority to survey primary elections is important, because there are some jurisdictions in which turnout is traditionally higher at the earlier stage. Section 207 requires the survey to be taken in every State or political subdivision covered under section 4 of the Voting Rights Act, as well as in other jurisdictions designated by the U.S. Commission on Civil Rights. The Title VIII survey was to be carried out in geographic areas recommended by the Civil Rights Commission. Again, the earlier provisions appear to be preferable. Statistics from State or other sources might be complete and accurate enough that a special survey in some areas may be unnecessary. Section 207 requires a survey to be taken after the 1974 Congressional election. To be useful a survey of voting must be taken very soon after the election on which it was based. It is now too late for a survey of voting in 1974 to yield useful results. Section 207 requires a survey to be taken every two years after each congressional election. Given the substantial cost of each survey as proposed, to repeat the survey at such frequent intervals is difficult to justify. It would be more reasonable to have surveys only following the elections of 1976, 1980, and 1984. The section 207 survey does not provide for questions concerning why a person is not registered or did not vote. This information would be valuable if the survey results are to be used as the basis for remedial recommendations. Section 207 surveys would be generally covered by 13 U.S.C. § 7 and 13 U.S.C. § 221. The former provides for the confidentiality of information gathered in a census and the latter requires people to answer census questions. Section 207 would make an exception to the latter provision to allow people to refuse to disclose their race, color, or national origin. While this exception is identical to that contained in Title VIII, it could substantially lower the value of the survey results. One can anticipate that in some areas a substantial percentage of the persons surveyed would refuse to disclose their race. (Both section 207 and Title VII prohibit questions concerning political party affiliation, how a person voted, or the reasons therefor. This limitation is proper.) Title VIII surveys have never been carried out, because no Administration has been willing to ask for the necessary funds, and no Congress has been willing to appropriate them. (See Washington Research Project, The Shameful Blight: The Survival of Racial Discrimination in Voting in the South 49-50 (1972).) Nothing contained in section 207 makes it any more likely that a section 207 survey will be carried out than it was for a Title VIII survey. The greater cost of section 207 surveys—resulting from their frequency and the coverage-makes funding for them even less likely. A less costly alternative would be to modify the post-election surveys now carried out by the Census Bureau every two years. Some of the data with respect to registration and voting by race gathered by the post-election survey are not published but are available on computer tapes. An expanded survey could yield more information, although not the detailed information anticipated by section 207. (See Bureau of the Census, Current Population Reports, Population Characteristics, Voter Participation in November 1974 (Advance Report) (Series P-20. No. 275, Jan. 1975) and Voting Participation in November 1972 (Series P-20, No. 253. Oct. 1973).) Section 404 adds the elections of delegates to Congress from Guam and the Virgin Islands to the list of elections that are covered by section 11(c) of the Voting Rights Act, which makes it a crime to give false information for the purpose of registration or voting. Section 405 amends section 5 of the Voting Rights Act to incorporate into the act the provision of the Section 5 Regulations that provides for expedited consideration of submissions. (28 C.F.R. § 51.22.) Section 405 generally tracks the language of the regulation and would not appear to weaken section 5. On the other hand, it is unclear that there is any need for this amendment. The theory behind section 405 is that the expedited consideration precedure established in the regulations is unauthorized by section 5. The Supreme Court's decision in Georgia v. United States, 411 U.S. 526 (1973), upheld in general the power of the Attorney General to promulgate regulations to implement section 5 (411 U.S. at 536) and upheld a specific regulation altering the 60-day statutory period. In allowing the Attorney General to suspend the running of the 60 days until a complete submission has been received the Court stated: "Yet, if the Attorney General were denied the power to suspend the 60-day period until a complete submission were tendered, his only plausible response to an inadequate or incomplete submission would be simply to object to it. He would then leave it to the State to submit adequate information if it wished to take advantage of this means of clearance under § 5. This result would only add acrimony to the administration of § 5. We conclude, therefore, that this facet of the Attorney General's regulations is wholly reasonable and consistent with the Act." (411 U.S. at 540-41.) This reasoning would justify the Attorney General's expedited consideration procedure. This procedure, moreover, has not been challenged in court, and no evidence has been found indicating that it is inadequate. Section 406 corrects a typographical error in section 203 of the Voting Rights Act. U.S. COMMISSION ON CIVIL RIGHTS, Hon. JOHN V. TUNNEY, DEAR MR. CHAIRMAN: This is to acknowledge your letter of May 8 requesting the Commission's assistance in evaluating the evidence received by your Subcommittee and adduced before the House Subcommittee on Civil Rights and Constitutional Rights with respect to the extent to which legislation mandating bilingual elections would alleviate the voting problems of "language minorities". We will also address the question of whether the violations of the voting rights of Mexican American, Native American, Asian American and Alaskan Native citizens requires imposition of the remedies in Sections 5, 6 and 8 of the Voting Rights Act of 1965 (as amended). We would hope to complete this assessment in early June. I am enclosing a staff memorandum analyzing those bills introduced in the Senate which would amend the Voting Rights Act. If you have any questions please have Mr. Goldberg call Bud Blakey (254–6626). Sincerely, Enclosure. JOHN A. BUGGS, STAFF MEMORANDUM-ANALYSIS OF BILLS TO AMEND THE VOTING RIGHTS ACT, MAY 12, 1975 INTRODUCTION This memorandum considers bills to amend the Voting Rights Act of 1965 that have been introduced in the Senate during the first session of the 94th Congress. These include the following: S. 1279, introduced by Mr. Hart and Mr. Hugh Scott; S. 407, introduced by Mr. Griffin and others; S. 903, introduced by Mr. Allen and Mr. Harry F. Byrd, Jr.; S. 1409, introduced by Mr. Mathias; Amendment No. 312 to S. 1279, introduced by Mr. Bayh and others; and Amendments Nos. 343, 344, and 345 to S. 1279, introduced by Mr. Tunney. S. 1279 extends the coverage of the special provisions of the Voting Rights Act for an additional 10 years and makes permanent the national ban on the use of literacy tests contained in section 201 of the act. S. 407 extends the special provisions of the act for 5 years and extends the literacy test ban for 5 years. S. 903 repeals sections 4 and 5 of the Voting Rights Act. The Commission on Civil Rights favors a 10-year extension for both the special provisions of the act and the national literacy test ban. This position was explained in the testimony of Arthur S. Flemming, Chairman of the Commission, before the Constitutional Rights Subcommittee of the Senate Judiciary Committee, April 9, 1975. Amendment 345 to S. 1279 contains two provisions that are not contained in any of the other bills. Section 401 would allow private parties to seek the special remedies of the Voting Rights Act through the use of section 3 of the act. Section 402 authorizes attorneys' fees in voting rights cases. The Commission on Civil Rights favors both of these provisions. They are discussed in Attachment to Mr. Flemming's testimony, cited above, and in U.S. Commission on Civil Rights, Staff Memorandum, Analysis of H.R. 6219, April 28, 1975, submitted to the Constitutional Rights Subcommittee of the Senate Judiciary Committee. The exact language of the amendment to section 3 of the Voting Rights Act and of the attorneys' fees provision depends on decisions concerning the contents of a voting rights bill and the approach to drafting that is used. The remaining sections of the various bills concern either expansion of the special coverage of the Voting Rights Act or the requirement of bilingual elections. EXPANSION Four of the bills that have been introduced in the Senate expand the special coverage of the Voting Rights Act to include additional jurisdictions. A fifth bill, Amendment 343 to S. 1279, remedies the problems in the jurisdictions that would be covered in the other bills through the provision of bilingual elections. The four bills would apply special coverage if three criteria are met. Two of the criteria are the same in all of the bills. The jurisdiction must conduct Englishonly elections.' and voter turnout in the 1972 presidential election must have been less than 50 percent. The third criterion concerns the presence of members of certain minority groups. Two of the bills, A. 312 and S. 1409, only provide special coverage for jurisdictions with a certain proportion of persons of Spanish origin (or heritage). The other two bills, A. 344 and A. 345, cover areas not only with a certain proportion of persons of Spanish origin but also areas with certain other minority groups. These three criteria are collectively referred to as the 1972 trigger. Section-by-Section Analysis A. 312 Section 201 amends section 4(a) of the Voting Rights Act, which suspends the use of tests or devices in specially covered jurisdictions and establishes procedure for bail out from special coverage. Under section 201 a jurisdiction covered under the 1972 trigger would remain covered until it could prove that it had not used a test or device with a discriminatory purpose or effect during the past 10 years. Section 202 amends section 4(b) of the Voting Rights Act, the trigger. It would cover jurisdictions that used a test or device in 1972 (as defined in section 203) and in which the Director of the Census determines that turnout was less than 50 percent of the voting age population in the 1972 presidential election. Section 203 is the heart of the title. It creates a new section 4(f) of the Voting Rights Act that protects the voting rights of persons of Spanish origin. Section 4 (f) (1) states: "No citizen of Spanish origin shall be denied the right under the fourteenth and fifteenth amendments to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language or because of any other qualification or prerequisite of voting, or standard, practice, or procedure, with respect to voting which has the purpose or effect of denying or abridging the right to vote of all such persons. The Congress hereby declares that to secure the rights of citizens of Spanish origin to vote in Federal, State, and local elections it is necessary to prohibit the States and political subdivisions from conditioning the right to vote of such citizens on ability to read, write, understand, or interpret any matter in the English language." 1 In this memorandum the term "English-only election" is used as a short-hand expression for the various complex provisions in the different bills requiring that registration and election materials be available in the language of groups satisfying certain criteria. |