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Miers' Answer Raises Questions
Legal experts find a misuse of terms in her Senate questionnaire
'terrible' and 'shocking.'
By David G. Savage
Times Staff Writer
10/22/05 "
Los Angeles Times" -- -- WASHINGTON — Asked to describe
the constitutional issues she had worked on during her legal career,
Supreme Court nominee Harriet E. Miers had relatively little to say
on the questionnaire she sent to the Senate this week.
And what she did say left many constitutional experts shaking their
heads.
At one point, Miers described her service on the Dallas City Council
in 1989. When the city was sued on allegations that it violated the
Voting Rights Act, she said, "the council had to be sure to comply
with the proportional representation requirement of the Equal
Protection Clause."
But the Supreme Court repeatedly has said the Constitution's
guarantee of "equal protection of the laws" does not mean that city
councils or state legislatures must have the same proportion of
blacks, Latinos and Asians as the voting population.
"That's a terrible answer. There is no proportional representation
requirement under the equal protection clause," said New York
University law professor Burt Neuborne, a voting rights expert. "If
a first-year law student wrote that and submitted it in class, I
would send it back and say it was unacceptable."
Stanford law professor Pamela Karlan, also an expert on voting
rights, said she was surprised the White House did not check Miers'
questionnaire before sending it to the Senate.
"Are they trying to set her up? Any halfway competent junior lawyer
could have checked the questionnaire and said it cannot go out like
that. I find it shocking," she said.
White House officials say the term "proportional representation" is
"amenable to different meanings." They say Miers was referring to
the requirement that election districts have roughly the same number
of voters.
In the 1960s, the Supreme Court adopted the "one person, one vote"
concept as a rule under the equal protection clause. Previously,
rural districts with few voters often had the same clout in
legislatures as heavily populated urban districts. Afterward, their
clout was equal to the number of voters they represented. But voting
rights experts do not describe this rule as "proportional
representation," which has a specific, different meaning.
"Either Miers misunderstood what the equal protection clause
requires, or she was using loose language to say something about
compliance with the one-person, one-vote rule," said Richard L.
Hasen, a professor at Loyola Law School in Los Angeles who
specializes in election law. "Either way, it is very sloppy and
unnecessary. Someone should have caught that."
Proportional representation was a focus of debate in the early
1980s. Democrats and liberal activists were pressing for Congress to
change the Voting Rights Act to ensure minorities equal
representation on city councils, state legislatures and in the U.S.
House.
They were responding to a 1980 case in which the Supreme Court
upheld an election system in Mobile, Ala., that had shut out blacks
from political power. The city was governed by a council of three
members, all elected citywide. About two-thirds of voters were white
and one-third black, but whites held all three seats.
The Supreme Court said Mobile's system was constitutional, so long
as there was no evidence it had been created for a "discriminatory
purpose."
"The equal protection clause does not require proportional
representation," the court said in a 6-3 decision. In dissent,
Justice Thurgood Marshall said the decision gave blacks the right to
cast "meaningless ballots."
In response, Congress moved to change the Voting Rights Act to
permit challenges to election systems that had the effect of
excluding minorities from power. The Reagan administration opposed
those efforts, saying they would lead to a proportional
representation rule.
Congress adopted a hazy compromise in 1982. It said election systems
could be challenged if minorities were denied a chance "to elect
representatives of their choice…. Provided that nothing in this
section establishes a right to have members of a protected class
elected in numbers equal to their proportion of the population."
This law put pressure on cities such as Dallas and Los Angeles and
many states to redraw their electoral districts in areas with
concentrations of black or Latino voters. The number of minority
members of Congress doubled in the early 1990s after districts were
redrawn.
In Dallas, Miers supported a move to create City Council districts
so black and Latino candidates would have a better chance of winning
seats.
"She came to believe it was important to achieve more black and
Hispanic representation," Hasen said. "She could have a profound
impact as a justice if she brought that view to the court. So from
the perspective of the voting rights community, they could do a lot
worse than her."
White House spokeswoman Dana Perino also emphasized that Miers'
experience was more important than her terminology.
"Ms. Miers, when confirmed, will be the only Supreme Court Justice
to have actually had to comply with the Voting Rights Act," she
said.
Copyright 2005 Los Angeles Times
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