If President Reagan and a handful of conservative senators succeed in their scheme to require plaintiffs in Voting Rights Act cases to prove ''intent'' to discriminate, the results will be tragic for minority Americans. A key provision of the bill passed by the House of Representatives on Oct. 5, 1981, by the overwhelmingly bipartisan vote of 389-24 will be struck down before it has become law.
Section 2, which was designed in 1965 to remedy voting discrimination patterns wherever they might exist, authorizes the government or private individuals to ask the federal courts to stop discriminatory practices whether they occur in Mississippi, Alaska, California, or anywhere in the US. If President Reagan is successful in imposing his will, scores of blatantly discriminatory laws and pratices will be unreachable through lawsuits.
When it approved the Voting Rights Act in 1965, it was Congress's intention that in lawsuits to enforce Section 2 the burden of proof on the complaining party not be limited to proof of intent or bad purpose. If discriminatory results were shown, a violation could be found. The House overwhelmingly restated this principle in extending the Voting Rights Act in 1981.
Section 2 worked very well for the first 15 years of the Voting Rights Act. Suits were filed in jurisdictions where laws enacted many years ago had resulted in black citizens having little or no chance of being elected to local or state offices. These suits were not easy--they required a showing that an aggregate of factors were present in a particular jurisdiction.
To make this showing, substantial statistical and other evidence proving the discriminatory impact of voting and election practices and procedures in the local jurisdiction was needed. But important suits were won, and the 1965 intent of Congress in enacting Section 2 was being fulfilled.
Then in April 1980 the US Supreme Court in a plurality, not a majority, decision overruled the lower court decisions and said that insofar as the City of Mobile, Ala. was concerned, Section 2 of the Voting Rights Act could not be used to mandate single-member districts unless the officials who wrote the law back in 1911 had the intent to discriminate against blacks. The Court specifically said that it was not enough to prove the existence of an aggregate of factors, such as a history of segregation, discrimination in registration and voting, disproportionately low numbers of minorities elected to office, racial bloc voting, lack of responsiveness by local officials to minorities, and the lack of access to the political process.
The impact of the Mobile decision has been devastating. The US Justice Department abandoned its suit against South Carolina, 30 percent black, the sole remaining state in the Deep South with an all-white legislative body - the state senate. Indeed, a black has not been elected to the South Carolina state senate in this century. The Justice Department dismissed three additional suits, and dropped from consideration other possible suits in cities where black citizens have for decades been discriminated against in the electoral process.
In one case, a court, citing the Mobile decision, upheld an election system in Moultrie, Ga., where exclusion of blacks has gone so far that the town actually delegated the running of elections to an all-white social club.
Since the Mobile decision in April 1980 the Justice Department has not inititated a single lawsuit under Section 2 of the Voting Rights Act.
Mobile has made Section 2 virtually irrelevant. Old laws obviously designed to prevent the election to public office of black Americans can no longer be reached in courts of law. Section 2 must be reinstated by Congress, so that plaintiffs are not given the impossible job of proving to a judge what was in the minds of the members of a city council when, 50 or 100 years ago, they enacted a particular ordinance that resulted in the effective disenfranchisement of the city's black citizens.
President Reagan's demand that the House-passed extension of the Voting Rights Act be changed in the Senate to require intent to discriminate must be resisted by all fair-minded Americans. In creating the Voting Rights Act in 1965 Congress intended that proof or effect, results, was enough, and that to require proof of intent would be a nearly impossible burden. Without the House version of Section 2, the Voting Rights extension will be substantially weaker than the 1965 law. The Reagan amendment would be a giant step backward in America's commitment to the elimination of a hundred years of blatant racial discrimination in voting practices. The President must not be allowed to win this one.