Mobile v. Bolden

Part of the controversy may have arisen from the strong language in which the Court rejected past effects as a means of establishing discrimination. "Past discrimination," wrote Stewart, "cannot, in the manner of original sin, condemn government action that is not itself unlawful." But most controversial was the Court's wholesale rejection of disproportionate effects as a means for establishing discriminatory intent. Steward wrote that "disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose."

Justice Marshall wrote a lengthy and impassioned dissent, accusing the Court of helping to perpetuate racial discrimination. If voting practices that led to vote dilution were acceptable to the Court, Marshall wrote, "the right to vote provides the politically powerless with nothing more than the right to cast meaningless ballots." He did not mince words in implying that the consequences of such a position could be civil disobedience: "If this Court refuses to honor our long-recognized principle that the Constitution `nullifies sophisticated as well as simple-minded modes of discrimination' . . . it cannot expect the victims of discrimination to respect political channels of seeking redress."

Mobile v. Bolden was certainly a move away from the civil rights legislation of the preceding era, and toward the retreat from reform that dominated the 1980s. The controversy surrounding the decision lasted for some time, and contributed toward the extension in 1982 of the 1965 Voting Rights Act. Opposed by the Reagan administration, which wanted to allow the Voting Rights Act to expire completely, the amended section two of the act allowed for limited use of an effects standard, giving plaintiffs the right to challenge a voting practice by proving discrimination in its effects, based on a totality of evidence. The language of the amended act, however, is careful to disallow the use of section two to establish racial quotas or allow any claim to a right to proportionate representation.