<x-flowed>   The irony of Beer and its progeny has always seemed to me that it implied that if the southern white Establishment had had more foresight, they'd have seen Beer coming and realized that all they had to do was to keep changing election laws, districts, registration, etc. so as never to allow any blacks to hold office.  Then, they could never have retrogressed.  (Yes, I know this is inconsistent with Allen, but Beer has always seemed to me inconsistent in spirit with Allen.  And the "less-than-zero" interpretation is probably inconsistent with Section 2 and the 14 and 15th Amendments, but City of Boerne has put Section 2, as well as Section 5, on the endangered species list and possibly limited the scope of the Reconstruction Amendments, as well.)
  The number of African-Americans and Latinos elected to public office in covered jurisdictions having expanded considerably since 1965 because of previously liberal constructions of Section 2 and the Amendments, as well as the pre-Bossier use of "purpose" under Section 5 by the DOJ, we're now in the position that the status quo on minority officeholding in current Section 5 areas may be the best we can hope for.  If that's true, Section 5 offers an advantage over Section 2 and the Amendments, because it effectively presumes a racial intent or effect if an election regulation or a redistricting reduces the number of districts where minorities can be expected to be able to elect candidates of their choice.  This would be a second irony of Beer, with a reversed effect.  Instead of stopping progress, as it seemed likely to do in 1976 (before it was essentially ignored in UJO and many subsequent cases), Beer may in the current racial/political climate be the only sure guard against retrogression, now that minorities have a substantial stake in not retrogressing.
Morgan

Prof. of History and Social Science, Caltech
snail mail:  228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
home page:  <http://www.hss.caltech.edu/~kousser/Kousser.html> (Newly Revised!)
to order Colorblind Injustice:  http://uncpress.unc.edu/books/T-388.html
          "Peace if possible, Justice at any rate" -- Wendell Phillips

</x-flowed>