OCTOBER TERM, 1993
Syllabus
HOLDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COUNTY
COMMISSIONER FOR BLECKLEY COUNTY, GEORGIA, ET AL.
v. HALL ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-2012. Argued October 4, 1993-Decided June 30, 1994
Bleckley County, Georgia, has always had a form of government
whereby a single commissioner holds all legislative and executive
authority. In 1985, the state legislature authorized the county to
adopt by referendum a multimember commission consisting of five
members elected from single-member districts and a chair elected at
large, but voters defeated the proposal, although they had
previously approved a five-member district plan for the county
school board. Respondents, black voters and the local chapter of
the National Association for the Advancement of Colored People,
filed this action. The District Court rejected their constitutional
claim that the single-member commission was enacted or maintained
with an intent to exclude or limit the political influence of the
county's black community in violation of the Fourteenth and
Fifteenth Amendments. The court also ruled against their claim that
the commission's size violated § 2 of the Voting Rights Act of
1965, finding that respondents satisfied only one of the three
preconditions established in
Thornburg v.
Gingles,
478 U. S. 30. The
Court of Appeals reversed on the statutory claim, holding that the
totality of the circumstances supported § 2 liability and remanding
for a formulation of a remedy, which it suggested could be modeled
after the county's school board election system.
Held: The judgment is reversed, and the case is remanded.
955 F.2d
1563, reversed and remanded.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE
O'CONNOR, concluded in Parts I, II-A, and III:
1. The size of a governing authority is not subject to a vote
dilution challenge under § 2. Along with determining whether the
Gingles preconditions are met and whether the totality of
the circumstances support a liability finding, a court in a § 2
suit must find a reasonable alternative practice as a benchmark
against which to measure the existing voting practice. However,
there is no objective and workable standard for choosing a
reasonable benchmark where, as here, the challenge is brought to
the government body's size. There is no reason why one
875
size should be picked over another. Respondents have offered no
convincing reasons why the benchmark should be a hypothetical
fivemember commission. That such a commission is the most common
form of governing authority in the State does not bear on dilution,
since a sole commissioner system has the same impact on voting
strength whether it is shared by none, or by all, of Georgia's
counties. That the county was authorized to expand its commission,
and that it adopted a five-member school board, are likewise
irrelevant considerations. At most, they indicate that the county
could change the size of its governing body with minimal
disruption, but the failure to do so says nothing about the effects
the current system has on the county citizens' voting power.
Pp.880-882.
2. The case is remanded for consideration of respondents'
constitutional claim. P. 885.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, concluded in Part
II-B that a voting practice subject to the preclearance requirement
of § 5 of the Act is not necessarily subject to a dilution
challenge under § 2. The sections differ in structure, purpose, and
application; and in contrast to § 2 cases, a baseline for
comparison under § 5 exists by definition: A proposed voting
practice is measured against the existing practice to determine
whether retrogression would result from the proposed change. pp.
882-885.
JUSTICE O'CONNOR concluded that precedent compels the conclusion
that the size of a governing authority is both a "standard,
practice, or procedure" under § 2 and a "standard, practice, or
procedure with respect to voting" under § 5, but agreed that a § 2
dilution challenge to a governing authority's size cannot be
maintained because there can never be an objective alternative
benchmark for comparison. Pp. 885-888.
JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that the
size of a governing body cannot be attacked under § 2 because it is
not a "standard, practice, or procedure" within the terms of § 2.
An examination of § 2's text makes it clear that those terms refer
only to practices that affect minority citizens' access to the
ballot. Districting systems and electoral mechanisms that may
affect the "weight" given to a ballot duly cast and counted are
simply beyond the purview of the Act. The decision in
Thornburg v.
Gingles, 478 U. S. 30, which
interprets § 2 to reach claims of vote "dilution," should be
overruled.
Gingles was based upon a flawed method of
statutory construction and has produced an interpretation of § 2
that is at odds with the text of the Act and that has proved
unworkable in practice. Pp. 891-946.
KENNEDY, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., joined, and in all but Part
II-B of
876
Opinion of KENNEDY, J.
which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion
concurring in part and concurring in the judgment,
post, p.
885. THOMAS, J., filed an opinion concurring in the judgment, in
which SCALIA, J., joined,
post, p. 891. BLACKMUN, J., filed
a dissenting opinion, in which STEVENS, SouTER, and GINSBURG, JJ.,
joined,
post, p. 946. GINSBURG, J., filed a dissenting
opinion,
post, p. 956. STEVENS, J., filed a separate
opinion, in which BLACKMUN, SOUTER, and GINSBURG, JJ., joined,
post, p. 957.
R. Napier Murphy argued the cause for petitioners.
With him on the briefs was
W Lonnie Barlow.
Christopher Coates argued the cause for respondents.
With him on the brief were Laughlin McDonald, Kathleen Wilde,
Neil Bradley, Mary Wyckoff, John A. Powell, and Steven R. Shapiro.
*
JUSTICE KENNEDY announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE joined, and in all
but Part II-B of which JUSTICE O'CONNOR joined.
This case presents the question whether the size of a governing
authority is subject to a vote dilution challenge under § 2 of the
Voting Rights Act of 1965, 42 U. S. C. § 1973.
I
The State of Georgia has 159 counties, one of which is Bleckley
County, a rural county in central Georgia. Black persons make up
nearly 20% of the eligible voting population in Bleckley County.
Since its creation in 1912, the county has had a
single-commissioner form of government for the exercise of "county
governing authority." See Ga. Code Ann. § 1-3-3(7) (Supp. 1993).
Under this system, the
*Briefs of amici curiae urging affirmance were filed for the
United States by Acting Solicitor General Bryson, Acting Assistant
Attorney General Turner, Acting Deputy Solicitor General Kneedler,
Michael R. Dreeben, and Dennis J. Dimsey; and for the Lawyers'
Committee for Civil Rights Under Law by Antonia B. Ianniello,
Herbert M. Wachtell, William H. Brown III, Norman Redlich, Thomas
J. Henderson, Frank R. Parker, and Brenda Wright.
877
Bleckley County Commissioner performs all of the executive and
legislative functions of the county government, including the
levying of general and special taxes, the directing and controlling
of all county property, and the settling of all claims. Ga. Code
Ann. § 36-5-22.1 (1993). In addition to Bleckley County, about 10
other Georgia counties use the single-commissioner system; the rest
have multimember commissions.
In 1985, the Georgia Legislature authorized Bleckley County to
adopt a multimember commission consisting of five commissioners
elected from single-member districts and a single chairman elected
at large. 1985 Ga. Laws, p. 4406. In a referendum held in 1986,
however, the electorate did not adopt the change to a multimember
commission. (In a similar referendum four years earlier, county
voters had approved a five-member district plan for the election of
the county school board.)
In 1985, respondents (six black registered voters from Bleckley
County and the CochranlBleckley County Chapter of the National
Association for the Advancement of Colored People) challenged the
single-commissioner system in a suit filed against petitioners
(Jackie Holder, the incumbent county commissioner, and Probate
Judge Robert Johnson, the superintendent of elections). The
complaint raised both a constitutional and a statutory claim.
In their constitutional claim, respondents alleged that the
county's single-member commission was enacted or maintained with an
intent to exclude or to limit the political influence of the
county's black community in violation of the Fourteenth and
Fifteenth Amendments. At the outset, the District Court made
extensive findings of fact about the political history and dynamics
of Bleckley County. The court found, for example, that when the
county was formed in 1912, few, if any, black citizens could vote.
Indeed, until passage of federal civil rights laws, Bleckley County
"enforced racial segregation in all aspects of local
government-courthouse,
878
Opinion of KENNEDY, J.
jails, public housing, governmental services-and deprived its
black citizens of the opportunity to participate in local
government." 757 F. Supp. 1560, 1562 (MD Ga. 1991). And even today,
though legal segregation no longer exists, "more black than white
residents of Bleckley County continue to endure a depressed
socio-economic status."
Ibid. No black person has run for or
been elected to the office of Bleckley County Commissioner, and the
District Judge stated that, having run for public office himself,
he "wouldn't run if [he] were black in Bleckley [C]ounty." See
955 F.2d
1563, 1571 (CAll 1992).
The court rejected respondents' constitutional contention,
however, concluding that respondents "ha[d] failed to provide any
evidence that Bleckley County's single member county commission
[wa]s the product of original or continued racial animus or
discriminatory intent." 757 F. Supp., at 1571. Nor was there
evidence that the system was maintained "for tenuous reasons" or
that the commissioner himself was unresponsive to the
"particularized needs" of the black community.
Id., at 1564.
There was no "slating process" to stand as a barrier to black
candidates, and there was testimony from respondents that they were
unaware of any racial appeals in recent elections.
Id., at
1562, n. 2, 1583.
In their statutory claim, respondents asserted that the county's
single-member commission violated § 2 of the Voting Rights Act of
1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973. Under the
statute, the suit contended, Bleckley County must have a county
commission of sufficient size that, with single-member election
districts, the county's black citizens would constitute a majority
in one of the single-member districts. Applying the § 2 framework
established in
Thornburg v.
Gingles, 478 U. S. 30 (1986), the
District Court found that respondents satisfied the first of the
three
Gingles preconditions because black voters were
sufficiently numerous and compact that they could have constituted
a majority in one district of a multimember commission. In
particular,
879
the District Court found that "[i]f the county commission were
increased in number to six commissioners to be elected from five
single member districts and if the districts were the same as the
present school board election districts, a black majority 'safe'
district ... would result." 757 F. Supp., at 1565. The court found,
however, that respondents failed to satisfy the second and third
Gingles preconditions-that whites vote as a bloc in a manner
sufficient to defeat the black-preferred candidate and that blacks
were politically cohesive.
The Court of Appeals for the Eleventh Circuit reversed on the
statutory claim. Relying on its decision in
Carrollton Branch of
NAACP v.
Stallings, 829 F.2d
1547 (1987), the court first held that a challenge to the
single-commissioner system was subject to the same analysis as that
used in
Gingles. Applying that analysis, the Court of
Appeals agreed with the District Court that respondents had
satisfied the first
Gingles precondition by showing that
blacks could constitute a majority of the electorate in one of five
singlemember districts. The court explained that it was
"appropriate to consider the size and geographical compactness of
the minority group within a restructured form of the challenged
system when the
existing structure is being challenged as
dilutive." 955 F. 2d, at 1569. The Court of Appeals further found
that the District Court had erred in concluding that the second and
third
Gingles preconditions were not met. Turning to the
totality of the circumstances, the court found that those
circumstances supported a finding of liability under § 2. The court
therefore concluded that respondents had proved a violation of § 2,
and it remanded for formulation of a remedy, which, it suggested,
"could well be modeled" after the system used to elect the Bleckley
County school board. 955 F. 2d, at 1573-1574, and n. 20. Because of
its statutory ruling, the Court of Appeals did not consider the
District Court's ruling on respondents' constitutional claim.
880
Opinion of KENNEDY, J.
We granted certiorari to review the statutory holding of the
Court of Appeals. 507 U. S. 959 (1993).
II A
Section 2 of the Voting Rights Act of 1965 provides that "[n]o
voting qualification or prerequisite to voting, or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color." 42 U. S. C. § 1973(a). In a § 2
vote dilution suit, along with determining whether the
Gingles preconditions are met 1 and whether the totality of
the circumstances supports a finding of liability, a court must
find a reasonable alternative practice as a benchmark against which
to measure the existing voting practice. See
post, at 887
(O'CONNOR, J., concurring in part and concurring in judgment). As
JUSTICE O'CONNOR explained in
Gingles: "The phrase vote
dilution itself suggests a norm with respect to which the fact of
dilution may be ascertained .... [I]n order to decide whether an
electoral system has made it harder for minority voters to elect
the candidates they prefer, a court must have an idea in mind of
how hard it should be for minority voters to elect their preferred
candidates under an acceptable system." 478 U. S., at 88 (opinion
concurring in judgment) (internal quotation marks omitted).
In certain cases, the benchmark for comparison in a § 2 dilution
suit is obvious. The effect of an anti-single-shot voting rule, for
instance, can be evaluated by comparing the
1
Gingles requires a showing that "the minority group ...
is sufficiently large and geographically compact to constitute a
majority in a singlemember district," 478 U. S., at 50, that the
minority group is politically cohesive, and that the majority group
"votes sufficiently as a bloc to enable it-in the absence of
special circumstances ... usually to defeat the minority's
preferred candidate," id., at 51.
881
system with that rule to the system without that rule. But where
there is no objective and workable standard for choosing a
reasonable benchmark by which to evaluate a challenged voting
practice, it follows that the voting practice cannot be challenged
as dilutive under § 2. See
post, at 887-891 (O'CONNOR, J.,
concurring in part and concurring in judgment).
As the facts of this case well illustrate, the search for a
benchmark is quite problematic when a § 2 dilution challenge is
brought to the size of a government body. There is no principled
reason why one size should be picked over another as the benchmark
for comparison. Respondents here argue that we should compare
Bleckley County's sole commissioner system to a hypothetical
five-member commission in order to determine whether the current
system is dilutive. Respondents and the United States as
amicus
curiae give three reasons why the single-commissioner structure
should be compared to a five-member commission (instead of, say, a
3-, 10-, or 15-member body): (1) because the five-member commission
is a common form of governing authority in the State; (2) because
the state legislature had authorized Bleckley County to adopt a
five-member commission if it so chose (it did not); and (3) because
the county had moved from a single superintendent of education to a
school board with five members elected from single-member
districts. See Brief for United States as
Amicus Curiae
17-18.
These referents do not bear upon dilution. It does not matter,
for instance, how popular the single-member commission system is in
Georgia in determining whether it dilutes the vote of a minority
racial group in Bleckley County. That the single-member commission
is uncommon in the State of Georgia, or that a five-member
commission is quite common, tells us nothing about its effects on a
minority group's voting strength. The sole commissioner system has
the same impact regardless of whether it is shared by none, or by
all, of the other counties in Georgia. It makes little
882
Opinion of KENNEDY, J.
sense to say (as do respondents and the United States) that the
sole commissioner system should be subject to a dilution challenge
if it is rare-but immune if it is common.
That Bleckley County was authorized by the State to expand its
commission, and that it adopted a five-member school board, are
likewise irrelevant considerations in the dilution inquiry. At
most, those facts indicate that Bleckley County could change the
size of its commission with minimal disruption. But the county's
failure to do so says nothing about the effects the sole
commissioner system has on the voting power of Bleckley County's
citizens. Surely a minority group's voting strength would be no
more or less diluted had the State not authorized the county to
alter the size of its commission, or had the county not enlarged
its school board. One gets the sense that respondents and the
United States have chosen a benchmark for the sake of having a
benchmark. But it is one thing to say that a benchmark can be
found, quite another to give a convincing reason for finding it in
the first place.
B
To bolster their argument, respondents point out that our § 5
cases may be interpreted to indicate that covered jurisdictions may
not change the size of their government bodies without obtaining
preclearance from the Attorney General or the federal courts. Brief
for Respondents 29; see
Presley v.
Etowah County
Comm'n, 502 U. S.
491, 501-503 (1992);
City of Lockhart v.
United
States, 460 U. S.
125, 131-132
(1983); City of Rome v.
United
States, 446 U. S.
156, 161 (1980). Respondents contend that these § 5 cases,
together with the similarity in language between §§ 2 and 5 of the
Act, compel the conclusion that the size of a government body must
be subject to a dilution challenge under § 2. It is true that in
Chisom v.
Roemer, 501 U. S. 380, 401-402
(1991), we said that the coverage of §§ 2 and 5 is presumed to be
the same (at least if differential coverage would be anomalous). We
did not adopt a conclusive rule to that effect, however,
883
and we do not think that the fact that a change in a voting
practice must be precleared under § 5 necessarily means that the
voting practice is subject to challenge in a dilution suit under
§2.
To be sure, if the structure and purpose of § 2 mirrored that of
§ 5, then the case for interpreting §§ 2 and 5 to have the same
application in all cases would be convincing. But the two sections
differ in structure, purpose, and application.2 Section 5 applies
only in certain jurisdictions specified by Congress and "only to
proposed changes in voting procedures."
Beer v.
United
States, 425 U. S.
130, 138 (1976); see 42 U. S. C. § 1973b(b) (specifying
jurisdictions where § 5 applies). In those covered jurisdictions, a
proposed change in a voting practice must be approved in advance by
the Attorney General or the federal courts. § 1973c. The purpose of
this requirement "has always been to insure that no
voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise." 425 U. S., at
141. Under § 5, then, the proposed voting practice is measured
against the existing voting practice to determine whether
retrogression would result from the proposed change. See
ibid. The baseline for comparison is present by definition;
it is the existing status. While there may be difficulty in
determining whether a pro-
2 Section 2 provides that "[n]o voting qualification or
prerequisite to voting or standard, practice, or procedure shall be
imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color."
42 U. S. C. § 1973(a).
Section 5 requires preclearance approval by a court or by the
Attorney General "[w]henever a [covered] State or political
subdivision ... shall enact or seek to administer any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting ... different from that
[previously] in force or effect" so as to ensure that it "does not
have the purpose and will not have the effect of denying or
abridging the right to vote on account of race or color .... " 42
U. S. C. § 1973c.
884
Opinion of KENNEDY, J.
posed change would cause retrogression, there is little
difficulty in discerning the two voting practices to compare to
determine whether retrogression would occur. See 28 CFR § 51.54(b)
(1993).
Retrogression is not the inquiry in § 2 dilution cases. 42 U. S.
C. § 1973(a) (whether voting practice "results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color"); S. Rep. No. 97417, p. 68, n.
224 (1982) ("Plaintiffs could not establish a Section 2 violation
merely by showing that a challenged reapportionment or annexation,
for example, involved a retrogressive effect on the political
strength of a minority group"). Unlike in § 5 cases, therefore, a
benchmark does not exist by definition in § 2 dilution cases. And
as explained above, with some voting practices, there in fact may
be no appropriate benchmark to determine if an existing voting
practice is dilutive under § 2. For that reason, a voting practice
that is subject to the preclearance requirements of § 5 is not
necessarily subject to a dilution challenge under § 2.
This conclusion is quite unremarkable. For example, in
Perkins v.
Matthews, 400 U. S. 379, 388
(1971), we held that a town's annexation ofland was covered under §
5. Notwithstanding that holding, we think it quite improbable to
suggest that a § 2 dilution challenge could be brought to a town's
existing political boundaries (in an attempt to force it to annex
surrounding land) by arguing that the current boundaries dilute a
racial group's voting strength in comparison to the proposed new
boundaries. Likewise, in
McCain v.
Lybrand, 465 U. S. 236 (1984), we
indicated that a change from an appointive to an elected office was
covered under § 5. Here, again, we doubt Congress contemplated that
a racial group could bring a § 2 dilution challenge to an
appointive office (in an attempt to force a change to an elective
office) by arguing that the appointive office diluted its voting
strength in comparison to the proposed elective office. We think
these examples serve to show that a voting practice is
885
not necessarily subject to a dilution challenge under § 2 even
when a change in that voting practice would be subject to the
preclearance requirements of § 5.
III
With respect to challenges to the size of a governing authority,
respondents fail to explain where the search for reasonable
alternative benchmarks should begin and end, and they provide no
acceptable principles for deciding future cases. The wide range of
possibilities makes the choice "inherently standardless,"
post, at 889 (O'CONNOR, J., concurring in part and
concurring in judgment), and we therefore conclude that a plaintiff
cannot maintain a § 2 challenge to the size of a government body,
such as the Bleckley County Commission. The judgment of the Court
of Appeals is reversed, and the case is remanded for consideration
of respondents' constitutional claim.
It is so ordered.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I agree with JUSTICES KENNEDY and THOMAS that a plaintiff cannot
maintain a § 2 vote dilution challenge to the size of a governing
authority, though I reach that conclusion by a somewhat different
rationale. JUSTICE THOMAS rejects the notion that § 2 covers any
dilution challenges, and would hold that § 2 is limited to "state
enactments that regulate citizens' access to the ballot or the
processes for counting a ballot."
Post, at 945. As JUSTICE
STEVENS points out, however,
stare decisis concerns weigh
heavily here.
Post, at 963-966 (opinion of STEVENS, J.); see
also
Thornburg v.
Gingles, 478 U. S. 30, 84 (1986)
(O'CONNOR, J., concurring in judgment) ("We know that Congress
intended to allow vote dilution claims to be brought under § 2");
id., at 87 ("I agree with the Court that proof of vote dilution can
establish a violation of § 2"). These concerns require me to reject
JUSTICE
886
Opinion of O'CONNOR, J.
THOMAS' suggestion that we overhaul our established reading of
§2.
I also agree with JUSTICE BLACKMUN, see
post, at 946950,
that our precedents compel the conclusion that the size of the
Bleckley County Commission is both a "standard, practice, or
procedure" under § 2 and a "standard, practice, or procedure with
respect to voting" under § 5. See,
e. g.,
Presley v.
Etowah County Comm'n, 502 U. S. 491, 503 (1992)
(change in size is a change in a "standard, practice, or procedure"
because the change "increase[s] or diminish[es] the number of
officials for whom the electorate may vote");
City of
Lockhart v.
United States, 460 U. S. 125, 131-132
(1983) (change from three-member commission to five-member
commission is subject to § 5 preclearance);
City of Rome v.
United States, 446 U. S. 156, 160-161
(1980) (it "is not disputed" that an expansion in the size of a
board of education is subject to § 5 preclearance);
Bunton
v.
Patterson, decided with
Allen v.
State Bd. of
Elections, 393 U.
S. 544, 569-571 (1969) (change from elected to appointed office
is subject to § 5 preclearance); id., at 566-567 (§ 2 should be
given "the broadest possible scope").
As JUSTICES KENNEDY and BLACKMUN both recognize, in these cases
we have consistently said that a change in size is a "standard,
practice, or procedure with respect to voting" that is subject to §
5 preclearance. See
ante, at 882 (opinion of KENNEDY, J.);
post, at 946-948 (BLACKMUN, J., dissenting). And though our
cases involving size have concerned § 5, I do not think it possible
to read the terms of § 2 more narrowly than the terms of § 5.
Section 2 covers any "standard, practice, or procedure," while § 5
covers any "standard, practice, or procedure with respect to
voting." As a textual matter, I cannot see how a practice can be a
"standard, practice, or procedure with respect to voting," yet not
be a "standard, practice, or procedure." Indeed, the similarity in
language led to our conclusion in
Chisom v.
Roemer,
501 U. S.
380,
887
401-402 (1991), that, at least for determining threshold
coverage, §§ 2 and 5 have parallel scope.
But determining the threshold scope of coverage does not end the
inquiry, at least so far as § 2 dilution challenges are concerned.
As JUSTICES KENNEDY and BLACKMUN agree, the fact that the size of a
governing authority is a "standard, practice, or procedure" does
not answer the question whether respondents may maintain a § 2 vote
dilution challenge. See
ante, at 880 (opinion of KENNEDY,
J.);
post, at 951 (BLACKMUN, J., dissenting). Section 2 vote
dilution plaintiffs must establish that the challenged practice is
dilutive. In order for an electoral system to dilute a minority
group's voting power, there must be an alternative system that
would provide greater electoral opportunity to minority voters.
"Put simply, in order to decide whether an electoral system has
made it harder for minority voters to elect the candidates they
prefer, a court must have an idea in mind of how hard it 'should'
be for minority voters to elect their preferred candidates under an
acceptable system."
Gingles, 478 U. S., at 88 (O'CONNOR, J.,
concurring in judgment). As we have said, "[u]nless minority voters
possess the
potential to elect representatives in the
absence of the challenged structure or practice, they cannot claim
to have been injured by that structure or practice."
Id., at
50, n. 17 (emphasis in original); see also id., at 99 (O'CONNOR,
J., concurring in judgment) ("[T]he relative lack of minority
electoral success under a challenged plan,
when compared with
the success that would be predicted under the measure of undiluted
minority voting strength the court is employing, can constitute
powerful evidence of vote dilution") (emphasis added).
Accordingly, to determine whether voters possess the potential
to elect representatives of choice in the absence of the challenged
structure, courts must choose an objectively reasonable alternative
practice as a benchmark for the dilution comparison. On this, there
is general agreement. See
ante, at 880 (opinion of KENNEDY,
J.) ("[A] court must find a
888
Opinion of O'CONNOR, J.
reasonable alternative practice as a benchmark against which to
measure the existing voting practice");
post, at 951
(BLACKMUN, J., dissenting) ("[T]he allegedly dilutive mechanism
must be measured against the benchmark of an alternative structure
or practice that is reasonable and workable under the facts of the
specific case"). We require preclearance of changes in size under §
5, because in a § 5 case the question of an alternative benchmark
never arises-the benchmark is simply the former practice employed
by the jurisdiction seeking approval of a change. See
ante,
at 883 (opinion of KENNEDY, J.).
But § 2 dilution challenges raise more difficult questions.
This case presents the question whether, in a § 2 dilution
challenge to size, there can ever be an objective alternative
benchmark for comparison. And I agree with JUSTICE KENNEDY that
there cannot be. As JUSTICE KENNEDY points out,
ante, at
880, the alternative benchmark is often self-evident. In a
challenge to a multimember at-large system, for example, a court
may compare it to a system of multiple single-member districts. See
Gingles, supra, at 38, 50; Davidson, Minority Vote Dilution:
An Overview, in Minority Vote Dilution 5 (C. Davidson ed. 1984).
Similarly, a court may assess the dilutive effect of majority vote
requirements, numbered posts, staggered terms, residency
requirements, or anti-single-shot rules by comparing the election
results under a system with the challenged practice to the results
under a system without the challenged practice. Cf.
City of
Rome, supra, at 183-185; U. S. Comm'n on Civil Rights, The
Voting Rights Act: Ten Years After, pp. 206-208 (1975); Note,
Application of Section 2 of the Voting Rights Act to Runoff Primary
Election Laws, 91 Colum. L. Rev. 1127, 1148 (1991). Though there
may be disagreements about the precise appropriate alternative
practice in these cases, see
Gingles, supra, at 88-89
(O'CONNOR, J., concurring in judgment), there are at least some
objectively determinable constraints on the dilution inquiry.
889
This is not so with § 2 dilution challenges to size,
however.
In a dilution challenge to the size of a governing authority,
choosing the alternative for comparison-a hypothetical larger (or
smaller) governing authority-is extremely problematic. See
ante, at 881-882 (opinion of KENNEDY, J.). The wide range of
possibilities makes the choice inherently standardless. Here, for
example, respondents argued that the single-member commission
structure was dilutive in comparison to a five-member structure, in
which AfricanAmericans would probably have been able to elect one
representative of their choice. Some groups, however, will not be
able to constitute a majority in one of five districts. Once a
court accepts respondents' reasoning, it will have to allow a
plaintiff group insufficiently large or geographically compact to
form a majority in one of five districts to argue that the
jurisdiction's failure to establish a 10-, 15-, or 25commissioner
structure is dilutive. See,
e. g.,
Romero v.
Pomona,
883 F.2d
1418, 1425, n. 10 (CA9 1989); Heath, Managing the Political
Thicket: Developing Objective Standards in Voting Rights
Litigation, 21 Stetson L. Rev. 819, 827 (1992) ("[O]nce one departs
from the current number of districts or other objective standard,
the test loses its validity as a threshold standard").
Respondents argue that this concern with arbitrary and
standardless intrusions into the size of local governing authority
is overstated. Respondents' principal support for this conclusion
is that a five-member commission is the
most common size for
Georgia. But a five-member commission is not the only common size
in Georgia: 22 Georgia counties have three-member commissions (and
one county has an 11member commission). Moreover, there is no good
reason why the search for benchmarks should be limited to Georgia.
Expanding the search nationwide produces many 20-person county
commissions in Tennessee, and 40-member commissions in Wisconsin.
DeSantis, County Government: A Century of Change, in The Municipal
Yearbook 1989, pp. 80, 83.
890
Opinion of O'CONNOR, J.
In sum, respondents do not explain how common an alternative
practice must be before it can be a reliable alternative benchmark
for the dilution comparison, nor do they explain where the search
for alternative benchmarks should begin and end.
Respondents' failure to provide any meaningful principles for
deciding future cases demonstrates the difficulty with allowing
dilution challenges to the size of a governing authority. Under
respondents' open-ended test, a wide range of state governmental
bodies may be subject to a dilution challenge. Within each State
there are many forms of government, including county commissions
that range dramatically in size. For example, the majority of
county commissions in New Jersey have seven members, but three
counties have smaller commissions and one has a larger commission.
Id., at 76. Similarly, in South Carolina the norm is a
sevenmember commission, but a number of counties deviate.
Id., at 79. In Tennessee, the average size for a county
commission is 19 members, but one county has as few as 9 and
another has as many as 40.
Id., at 80. And in Wisconsin the
average size is 27 members, but the commission sizes range from 7
to 46.
Id., at 83.
Nor are deviations from the norm limited to counties.
Statewide governing authorities also range dramatically in size,
and often do not correlate to the size of the State. For example,
Texas has only 31 members in its State Senate, while tiny Rhode
Island has 50. Council of State Governments, State Elective
Officials and the Legislatures 1993-94, p. vi. The Texas Senate is
smaller than the national average and the Rhode Island Senate is
larger. Similarly, California has an unusually small 80-person
Assembly, while New Hampshire has a 400-person House.
Ibid.
The discrepancies in size among state and local governing
authorities reinforce my concern that the limiting principle
offered by respondents will in practice limit very little. Though
respondents purport to present Bleckley County as
891
unique, it is not. County commissions throughout New Jersey,
South Carolina, Tennessee, and Wisconsin, and the state
legislatures of Texas, Rhode Island, California, and New Hampshire
are ripe for a dilution challenge under respondents' theory, since
they do not fit the norm for their State. Moreover, though my
examples are some of the more extreme ones, they are not alone. In
these cases, and perhaps in many more, the potential reach of
allowing dilution challenges to size will not be meaningfully
circumscribed by the open-ended requirement that the alternative
benchmark be "reasonable and workable."
Post, at 951
(BLACKMUN, J., dissenting).
For these reasons, I concur in the conclusion that respondents'
dilution challenge to the size of the Bleckley County Commission
cannot be maintained under § 2 of the Voting Rights Act, and I join
Parts I, II-A, and III of JUSTICE KENNEDY'S opinion. Because the
Court appropriately reverses the judgment below and remands for
consideration of respondents' constitutional claim of intentional
discrimination, I also concur in the judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in
the judgment.
We are asked in this case to determine whether the size of a
local governing body is subject to challenge under § 2 of the
Voting Rights Act of 1965 as a "dilutive" practice. While I agree
with JUSTICES KENNEDY and O'CONNOR that the size of a governing
body cannot be attacked under § 2, I do not share their reasons for
reaching that conclusion. JUSTICE KENNEDY persuasively demonstrates
that there is no principled method for determining a benchmark
against which the size of a governing body might be compared to
determine whether it dilutes a group's voting power. Both he and
JUSTICE O'CONNOR rely on that consideration to conclude that size
cannot be challenged under § 2 of the Act. See
ante, at
880-882, 885 (opinion of KENNEDY, J.);
892
THOMAS, J., concurring in judgment
ante, at 888-891 (O'CONNOR, J., concurring in part and
concurring in judgment).
While the practical concerns JUSTICES KENNEDY and O'CONNOR point
out can inform a proper construction of the Act, I would explicitly
anchor analysis in this case in the statutory text. Only a "voting
qualification or prerequisite to voting, or standard, practice, or
procedure" can be challenged under § 2. I would hold that the size
of a governing body is not a "standard, practice, or procedure"
within the terms of the Act. In my view, however, the only
principle limiting the scope of the terms "standard, practice, or
procedure" that can be derived from the text of the Act would
exclude, not only the challenge to size advanced today, but also
challenges to allegedly dilutive election methods that we have
considered within the scope of the Act in the past.
I believe that a systematic reassessment of our interpretation
of § 2 is required in this case. The broad reach we have given the
section might suggest that the size of a governing body, like an
election method that has the potential for diluting the vote of a
minority group, should come within the terms of the Act. But the
gloss we have placed on the words "standard, practice, or
procedure" in cases alleging dilution is at odds with the terms of
the statute and has proved utterly unworkable in practice. A review
of the current state of our cases shows that by construing the Act
to cover potentially dilutive electoral mechanisms, we have
immersed the federal courts in a hopeless project of weighing
questions of political theory-questions judges must confront to
establish a benchmark concept of an "undiluted" vote. Worse, in
pursuing the ideal measure of voting strength, we have devised a
remedial mechanism that encourages federal courts to segregate
voters into racially designated districts to ensure minority
electoral success. In doing so, we have collaborated in what may
aptly be termed the racial "balkaniz[ation]" of the Nation.
Shaw v.
Reno, 509 U. S. 630, 658
(1993).
893
I can no longer adhere to a reading of the Act that does not
comport with the terms of the statute and that has produced such a
disastrous misadventure in judicial policymaking. I would hold that
the size of a government body is not a "standard, practice, or
procedure" because, properly understood, those terms reach only
state enactments that limit citizens' access to the ballot.
I
If one surveys the history of the Voting Rights Act, 42 U. S. C.
§ 1973
et seq., one can only be struck by the sea change
that has occurred in the application and enforcement of the Act
since it was passed in 1965. The statute was originally perceived
as a remedial provision directed specifically at eradicating
discriminatory practices that restricted blacks' ability to
register and vote in the segregated South. Now, the Act has grown
into something entirely different. In construing the Act to cover
claims of vote dilution, we have converted the Act into a device
for regulating, rationing, and apportioning political power among
racial and ethnic groups. In the process, we have read the Act
essentially as a grant of authority to the federal judiciary to
develop theories on basic principles of representative government,
for it is only a resort to political theory that can enable a court
to determine which electoral systems provide the "fairest" levels
of representation or the most "effective" or "undiluted" votes to
minorities.
Before I turn to an analysis of the text of § 2 to explain why,
in my view, the terms of the statute do not authorize the project
that we have undertaken in the name of the Act, I intend first
simply to describe the development of the basic contours of vote
dilution actions under the Voting Rights Act.1 An examination of
the current state of our decisions
1 Of course, many of the basic principles I will discuss are
equally applicable to constitutional vote dilution cases. Indeed,
prior to the amendment of the Voting Rights Act in 1982, dilution
claims typically were
894
THOMAS, J., concurring in judgment
should make obvious a simple fact that for far too long has gone
unmentioned: Vote dilution cases have required the federal courts
to make decisions based on highly political judgments-judgments
that courts are inherently ill-equipped to make. A clear
understanding of the destructive assumptions that have developed to
guide vote dilution decisions and the role we have given the
federal courts in redrawing the political landscape of the Nation
should make clear the pressing need for us to reassess our
interpretation of the Act.
A
As it was enforced in the years immediately following its
enactment, the Voting Rights Act of 1965, Pub. L. 89-110,79 Stat.
437, was perceived primarily as legislation directed at eliminating
literacy tests and similar devices that had been used to prevent
black voter registration in the segregated South. See A.
Thernstrom, Whose Votes Count? Affirmative Action and Minority
Voting Rights 17-27 (1987) (hereinafter Thernstrom). See also
Guinier, The Representation of Minority Interests: The Question of
Single-Member Districts, 14 Cardozo L. Rev. 1135, 1151 (1993)
(referring to actions securing access to the ballot as the "first
generation" of Voting Rights Act claims).2 This focus in
enforcement flowed, no doubt, from the emphasis on access to the
ballot apparent in the central provision of the Act, § 4, which
used a mathematical formula based on voter registration and
brought under the Equal Protection Clause. See,
e. g.,
White v.
Regester, 412 U. S. 755 (1973);
Whitcomb v.
Chavis, 403 U. S. 124 (1971);
Burns v.
Richardson, 384 U. S. 73 (1966). The
early development of our voting rights jurisprudence in those cases
provided the basis for our analysis of vote dilution under the
amended §2 in
Thornburg v.
Gingles, 478 U. S. 30 (1986).
2 Cf. L. Guinier, The Tyranny of the Majority 49, n. 58 (1994)
(hereinafter Guinier) ("The first generation of voting litigation,
and the 1965 statute which represented the congressional response,
were concerned with the complete and total exclusion of blacks from
the electoral process").
895
turnout in 1964 to define certain "covered" jurisdictions in
which the use of literacy tests was immediately suspended. Pub. L.
89-110, §4, 79 Stat. 438. Section 6 of the Act reflected the same
concern for registration as it provided that federal examiners
could be dispatched to covered jurisdictions whenever the Attorney
General deemed it necessary to supervise the registration of black
voters. 42 U. S. C. § 1973d. And to prevent evasion of the
requirements of § 4, § 5 required that covered jurisdictions obtain
"preclearance" from the Department of Justice before altering any
"voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting." § 1973c.
The Act was immediately and notably successful in removing
barriers to registration and ensuring access to the ballot. For
example, in Mississippi, black registration levels skyrocketed from
6.7% to 59.8% in a mere two years; in Alabama the increase was from
19.3% to 51.6% in the same time period. See Thernstrom 18. By the
end of 1967, black voter registration had reached at least 50% in
every covered State. See B. Grofman, L. Handley, & R. Niemi,
Minority Representation and the Quest for Voting Equality 22
(1992).
The Court's decision in
Allen v.
State Bd. of
Elections, 393 U. S. 544 (1969), however, marked a fundamental
shift in the focal point of the Act. In an opinion dealing with
four companion cases, the
Allen Court determined that the
Act should be given "the broadest possible scope."
Id., at
567. Thus, in
Fairley v.
Patterson, the Court decided
that a covered jurisdiction's switch from a districting system to
an at-large system for election of county supervisors was a
"standard, practice, or procedure with respect to voting," subject
to preclearance under § 5.
Id., at 569. Stating that the Act
"was aimed at the subtle, as well as the obvious, state regulations
which have the effect of denying citizens their right to vote
because of their race," id., at 565, the Court reasoned that § 5's
preclearance provisions should apply, not only to changes in
electoral laws that pertain to
896
THOMAS, J., concurring in judgment
registration and access to the ballot, but to provisions that
might "dilute" the force of minority votes that were duly cast and
counted. See
id., at 569. The decision in
Allen thus
ensured that the terms "standard, practice, or procedure" would
extend to encompass a wide array of electoral practices or voting
systems that might be challenged for reducing the potential impact
of minority votes.
As a consequence,
Allen also ensured that courts would be
required to confront a number of complex and essentially political
questions in assessing claims of vote dilution under the Voting
Rights Act. The central difficulty in any vote dilution case, of
course, is determining a point of comparison against which dilution
can be measured. As Justice Frankfurter observed several years
before
Allen, "[t]alk of 'debasement' or 'dilution' is
circular talk. One cannot speak of 'debasement' or 'dilution' of
the value of a vote until there is first defined a standard of
reference as to what a vote should be worth."
Baker v.
Carr, 369 U.
S. 186, 300 (1962) (dissenting opinion). See also
Thornburg v.
Gingles, 478 U. S. 30, 88 (1986)
(O'CONNOR, J., concurring in judgment) ("[I]n order to decide
whether an electoral system has made it harder for minority voters
to elect the candidates they prefer, a court must have an idea in
mind of how hard it 'should' be for minority voters to elect their
preferred candidates under an acceptable system"). But in setting
the benchmark of what "undiluted" or fully "effective" voting
strength should be, a court must necessarily make some judgments
based purely on an assessment of principles of political theory. As
Justice Harlan pointed out in his dissent in
Allen, the
Voting Rights Act supplies no rule for a court to rely upon in
deciding, for example, whether a multimember at-large system of
election is to be preferred to a single-member district system;
that is, whether one provides a more "effective" vote than another.
"Under one system, Negroes have
some influence in the
election of
all officers; under the other, minority groups
have
more influence in the selection of
fewer
officers."
Allen,
897
supra, at 586 (opinion concurring in part and dissenting
in part). The choice is inherently a political one, and depends
upon the selection of a theory for defining the fully "effective"
vote-at bottom, a theory for defining effective participation in
representative government. In short, what a court is actually asked
to do in a vote dilution case is "to choose among competing bases
of representation-ultimately, really, among competing theories of
political philosophy."
Baker, supra, at 300 (Frankfurter,
J., dissenting).
Perhaps the most prominent feature of the philosophy that has
emerged in vote dilution decisions since
Allen has been the
Court's preference for single-member districting schemes, both as a
benchmark for measuring undiluted minority voting strength and as a
remedial mechanism for guaranteeing minorities undiluted voting
power. See,
e. g.,
Growe v.
Emison, 507 U. S. 25, 40 (1993);
Gingles, supra, at 50, n. 17 (declaring that the
"single-member district is generally the appropriate standard
against which to measure minority group potential to elect");
Mobile v.
Bolden, 446 U. S. 55, 66, n. 12
(1980) (plurality opinion) (noting that singlemember districts
should be preferred in court-ordered remedial schemes);
Connor v.
Finch, 431 U. S. 407, 415 (1977)
(same). Indeed, commentators surveying the history of voting rights
litigation have concluded that it has been the objective of voting
rights plaintiffs to use the Act to attack multimember districting
schemes and to replace them with single-member districting systems
drawn with majorityminority districts to ensure minority control of
seats. See Guinier, 14 Cardozo L. Rev., at 1151; Guinier 49-54;
Thernstrom 193.
It should be apparent, however, that there is no principle
inherent in our constitutional system, or even in the history of
the Nation's electoral practices, that makes single-member
districts the "proper" mechanism for electing representatives to
governmental bodies or for giving "undiluted" effect to the votes
of a numerical minority. On the contrary, from
898
THOMAS, J., concurring in judgment
the earliest days of the Republic, multimember districts were a
common feature of our political systems. The Framers left
unanswered in the Constitution the question whether congressional
delegations from the several States should be elected on a general
ticket from each State as a whole or under a districting scheme and
left that matter to be resolved by the States or by Congress. See
U. S. Const., Art. I, § 4, cl. 1. It was not until 1842 that
Congress determined that Representatives should be elected from
single-member districts in the States. See Act of June 25, 1842,
ch. 47, 5 Stat. 491.3 Single-member districting was no more the
rule in the States themselves, for the Constitutions of most of the
13 original States provided that representatives in the state
legislatures were to be elected from multimember districts.4 Today,
although they have come under increasing attack under the Voting
Rights Act, multimember district systems continue to be a feature
on the American political landscape, especially in municipal
governments. See The Municipal Yearbook 14 (table) (1988) (over 60%
of American cities use at-large election systems for their
governing bodies).
The obvious advantage the Court has perceived in singlemember
districts, of course, is their tendency to enhance the ability of
any numerical minority in the electorate to gain control of seats
in a representative body. See
Gingles, supra, at 50-51. But
in choosing single-member districting as a benchmark electoral plan
on that basis the Court has made a political decision and, indeed,
a decision that itself depends on a prior political choice made in
answer to Justice Harlan's question in
Allen. Justice Harlan
asked whether a
3 At that time, seven States elected their congressional
delegations on a statewide ticket. See
Wesberry v.
Sanders, 376 U.
S. 1, 8, n. 11 (1964).
4 See,
e. g., Ga. Const., Art. IV (1777); Mass. Const.,
Part II, ch. I, § II, Arts. I, II (1780); N. H. Const., Part II
(1784); N. J. Const., Art. III (1776); N. Y. Const., Art. IV
(1777); S. C. Const., Art. XIII (1778). See also Klain, A New Look
at the Constituencies: The Need for a Recount and a Reappraisal, 49
Am. Pol. Sci. Rev. 1105, 1112-1113 (1955).
899
group's votes should be considered to be more "effective" when
they provide
influence over a greater number of seats, or
control over a lesser number of seats. See 393 U. S., at
586. In answering that query, the Court has determined that the
purpose of the vote-or of the fully "effective" vote-is controlling
seats. In other words, in an effort to develop standards for
assessing claims of dilution, the Court has adopted the view that
members of any numerically significant minority are denied a fully
effective use of the franchise unless they are able to control
seats in an elected body.5 Under this theory, votes that do not
control a representative are essentially wasted; those who cast
them go unrepresented and are just as surely disenfranchised as if
they had been barred from registering. Cf. id., at 569 (equating
denial of the ability to elect candidates with denial of the vote).
Such conclusions, of course, depend upon a certain theory of the
"effective" vote, a theory that is not inherent in the concept of
representative democracy itself.6
5 See,
e. g., Gingles, 478 U. S., at 88 (O'CONNOR, J.,
concurring in judgment) (noting that the Court has determined that
"minority voting strength is to be assessed solely in terms of the
minority group's ability to elect candidates it prefers") (emphasis
deleted). See also Abrams, "Raising Politics Up": Minority
Political Participation and Section 2 of the Voting Rights Act, 63
N. Y. U. L. Rev. 449, 456, n. 43, 468-471 (1988) (criticizing the
Court's "electoral focus" as a narrow conception of "political
opportunity"); Guinier 49 (arguing that since
Gingles,
courts "have measured black political representation and
participation solely by reference to the number and consistent
election of black candidates").
6 Undoubtedly, one factor that has prompted our focus on control
of seats has been a desire, when confronted with an abstract
question of political theory concerning the measure of effective
participation in government, to seize upon an objective standard
for deciding cases, however much it may oversimplify the issues
before us. If using control of seats as our standard does not
reflect a very nuanced theory of political participation, it at
least has the superficial advantage of appealing to the "most
easily measured indicia of political power."
Davis v.
Bandemer, 478
U. S. 109, 157 (1986) (O'CONNOR, J., concurring in
judgment).
900
THOMAS, J., concurring in judgment
In fact, it should be clear that the assumptions that have
guided the Court reflect only one possible understanding of
effective exercise of the franchise, an understanding based on the
view that voters are "represented" only when they choose a delegate
who will mirror their views in the legislative halls. See generally
H. Pitkin, The Concept of Representation 60-91 (1967).7 But it is
certainly possible to construct a theory of effective political
participation that would accord greater importance to voters'
ability to influence, rather than control, elections. And
especially in a two-party system such as ours, the influence of a
potential "swing" group of voters composing 10% to 20% of the
electorate in a given district can be considerable.8 Even such a
focus on practical influence, however, is not a necessary component
of the definition of the "effective" vote. Some conceptions of
representative government may primarily emphasize the formal value
of the vote as a mechanism for participation in
7 Indeed, the assumptions underpinning the Court's conclusions
largely parallel principles that John Stuart Mill advanced in
proposing a system of proportional representation as an electoral
reform in Great Britain. See J. S. Mill, Considerations on
Representative Government (1861). In Mill's view, a just system of
representative government required an electoral system that ensured
"a minority of the electors would always have a minority of the
representatives."
Id., at 133. To Mill, a system that
allowed a portion of the population that constituted a majority in
each district to control the election of all representatives and to
defeat the minority's choice of candidates was unjust because it
operated to produce a "complete disfranchisement of minorities."
Id., at 132.
8 We ourselves have tacitly acknowledged that our current view
of what constitutes an effective vote may be subject to
reevaluation, or at least that it may not provide an exclusive
definition of effective voting power, as we repeatedly have
reserved the question whether a vote dilution claim may be brought
for failure to create minority "influence" districts. See,
e.
g., Voinovich v.
Quilter, 507 U. S. 146, 154 (1993)
(citing cases). Cf.
Bandemer, supra, at 132 (noting that
"the power to influence the political process is not limited to
winning elections");
Gingles, supra, at 99 (O'CONNOR, J.,
concurring in judgment) (suggesting that the Court should not focus
solely on a minority group's ability to elect representatives in
assessing the effectiveness of the group's votes).
901
the electoral process, whether it results in control of a seat
or not. Cf. id., at 14-59.9 Under such a theory, minorities unable
to control elected posts would not be considered essentially
without a vote; rather, a vote duly cast and counted would be
deemed just as "effective" as any other. If a minority group is
unable to control seats, that result may plausibly be attributed to
the inescapable fact that, in a majoritarian system, numerical
minorities lose elections.10
In short, there are undoubtedly an infinite number of theories
of effective suffrage, representation, and the proper apportionment
of political power in a representative democracy that could be
drawn upon to answer the questions posed in
Allen. See
generally Pitkin,
supra. I do not pretend to have provided
the most sophisticated account of the various possibilities; but
such matters of political theory are beyond the ordinary sphere of
federal judges. And that is precisely the point. The matters the
Court has set out to resolve in vote dilution cases are questions
of political philosophy, not questions of law.ll As such, they are
not readily subjected
9 Cf. also Levinson, Gerrymandering and the Brooding
Omnipresence of Proportional Representation, 33 UCLA L. Rev. 257,
260-261 (1985).
10 There are traces of this view in our cases as well. See
Whitcomb, 403 U. S., at 153, 155; id., at 160 ("The short of
it is that we are unprepared to hold that district-based elections
decided by plurality vote are unconstitutional in either single- or
multi-member districts simply because the supporters of losing
candidates have no legislative seats assigned to them"). See also
League of United Latin American Citizens v.
Midland
Independent School Dist., 812 F.2d
1494, 1507 (CA5) (Higginbotham, J., dissenting) ("I had
supposed that the essence of our republican arrangement is that
voting minorities lose"), vacated on rehearing,
829 F.2d
546 (1987) (en bane)
(per curiam).
11 The point is perhaps so widely accepted at this date that it
needs little further demonstration. See,
e. g., L. Tribe,
American Constitutional Law § 13-7, p. 1076, n. 7 (2d ed. 1988)
(stating that
"no strategy [in vote dilution cases] can
avoid the necessity for at least some hard substantive decisions of
political theory by the federal judiciary"); Howard & Howard,
The Dilemma of the Voting Rights Act-Recognizing the Emerging
Political Equality Norm, 83 Colum. L. Rev. 1615, 1633, 1635 (1983)
(hereinafter
902
THOMAS, J., concurring in judgment
to any judicially manageable standards that can guide courts in
attempting to select between competing theories.
But the political choices the Court has had to make do not end
with the determination that the primary purpose of the "effective"
vote is controlling seats or with the selection of single-member
districting as the mechanism for providing that control. In one
sense, these were not even the most critical decisions to be made
in devising standards for assessing claims of dilution, for, in
itself, the selection of singlemember districting as a benchmark
election plan will tell a judge little about the number of minority
districts to create. Single-member districting tells a court "how"
members of a minority are to control seats, but not "how many"
seats they should be allowed to control.
But "how many" is the critical issue. Once one accepts the
proposition that the effectiveness of votes is measured in terms of
the control of seats, the core of any vote dilution claim is an
assertion that the group in question is unable to control the
"proper" number of seats-that is, the number of seats that the
minority's percentage of the population would enable it to control
in the benchmark "fair" system. The claim is inherently based on
ratios between the numbers of the minority in the population and
the numbers of seats controlled. As JUSTICE O'CONNOR has noted,
"any theory of vote dilution must necessarily rely to some extent
on a measure of minority voting strength that makes some reference
to the proportion between the minority group and the electorate at
large."
Gingles, 478 U. S., at 84 (opinion concurring in
judgment). As a result, only a mathematical calculation can answer
the fundamental question posed by a claim of vote dilution. And
once again, in selecting the proportion that will be used to define
the undiluted strength of a minor-
Howard & Howard) (arguing that the Court has developed a
"substantive theory of representative government" and a theory of
"allocating political power" in vote dilution cases).
903
ity-the ratio that will provide the principle for decision in a
vote dilution case-a court must make a political choice.
The ratio for which this Court has opted, and thus the
mathematical principle driving the results in our cases, is
undoubtedly direct proportionality. Indeed, four Members of the
Court candidly recognized in
Gingles that the Court had
adopted a rule of roughly proportional representation, at least to
the extent proportionality was possible given the geographic
dispersion of minority populations. See id., at 85, 91, 98-99
(O'CONNOR, J., concurring in judgment). While in itself that choice
may strike us intuitively as the fairest or most just rule to
apply, opting for proportionality is still a political choice, not
a result required by any principle of law.
B
The dabbling in political theory that dilution cases have
prompted, however, is hardly the worst aspect of our vote dilution
jurisprudence. Far more pernicious has been the Court's willingness
to accept the one underlying premise that must inform every
minority vote dilution claim: the assumption that the group
asserting dilution is not merely a racial or ethnic group, but a
group having distinct political interests as well. Of necessity, in
resolving vote dilution actions we have given credence to the view
that race defines political interest. We have acted on the implicit
assumption that members of racial and ethnic groups must all think
alike on important matters of public policy and must have their own
"minority preferred" representatives holding seats in elected
bodies if they are to be considered represented at all.
It is true that in
Gingles we stated that whether a
racial group is "politically cohesive" may not be assumed, but
rather must be proved in each case. See 478 U. S., at 51, 56. See
also
Growe, 507 U. S., at 40-41. But the standards we have
employed for determining political cohesion have proved so
insubstantial that this "precondition" does not present much of a
barrier to the assertion of vote dilution
904
THOMAS, J., concurring in judgment
claims on behalf of any racial groUp.12 Moreover, it provides no
test-indeed, it is not designed to provide a test-of whether race
itself determines a distinctive political community of interest.
According to the rule adopted in
Gingles, plaintiffs must
show simply that members of a racial group tend to prefer the same
candidates. See 478 U. S., at 61-67 (opinion of Brennan, J.). There
is no set standard defining how strong the correlation must be, and
an inquiry into the cause for the correlation (to determine, for
example, whether it might be the product of similar socioeconomic
interests rather than some other factor related to race) is
unnecessary.
Ibid. See also
id., at 100 (O'CONNOR,
J., concurring in judgment).13 Thus, whenever similarities in
political preferences along racial lines exist, we proclaim that
the cause of the correlation is irrelevant, but we effectively rely
on the fact of the correlation to assume that racial groups have
unique political interests.
12 Cf.
Citizens for a Better Gretna v.
Gretna,
834 F.2d
496, 501-502
(CA5 1987) (emphasizing that political
cohesion under
Gingles can be shown where a "significant
number" of minority voters prefer the same candidate, and
suggesting that data showing that anywhere from 49% to 67% of the
members of a minority group preferred the same candidate
established cohesion), cert. denied, 492 U. S. 905 (1989).
13JUSTICE O'CONNOR agreed with Justice Brennan in
Gingles
that, insofar as determining political cohesion was concerned, the
cause for a correlation between race and candidate preference was
irrelevant. She maintained, however, that evidence of the cause of
the correlation would still be relevant to the overall vote
dilution inquiry and particularly to the question whether a white
majority will usually vote to defeat the minority's preferred
candidate. See 478 U. S., at 100 (opinion concurring in judgment).
The splintering of opinions in
Gingles on this point has
produced, at best, "uncertainty,"
Overton v.
Austin,
871 F.2d
529, 538
(CA5 1989), and has allowed bivariate
regression analysis-that is, an analysis that measures merely the
correlation between race and candidate preference and that does not
directly control for other factors-to become the norm for
determining cohesion in vote dilution cases. See id., at 539. But
cf.
League of United Latin American Citizens v.
Clements, 999 F.2d
831,
850-851 (CA5 1993), cert. denied, 510 U. S. 1071
(1994).
905
As a result,
Gingles' requirement of proof of political
cohesiveness, as practically applied, has proved little different
from a working assumption that racial groups can be conceived of
largely as political interest groups. And operating under that
assumption, we have assigned federal courts the task of ensuring
that minorities are assured their "just" share of seats in elected
bodies throughout the Nation.
To achieve that result through the currently fashionable
mechanism of drawing majority-minority single-member districts, we
have embarked upon what has been aptly characterized as a process
of "creating racially 'safe boroughs.'"
United States v.
Dallas County Comm'n, 850 F.2d
1433, 1444 (CAll 1988) (Hill, J., concurring specially), cert.
denied, 490 U. S. 1030 (1989). We have involved the federal courts,
and indeed the Nation, in the enterprise of systematically dividing
the country into electoral districts along racial lines-an
enterprise of segregating the races into political homelands that
amounts, in truth, to nothing short of a system of "political
apartheid."
Shaw, 509 U. S., at 647. See also
id., at
657 (noting that racial gerrymandering "may balkanize us into
competing racial factions"). Blacks are drawn into "black
districts" and given "black representatives"; Hispanics are drawn
into Hispanic districts and given "Hispanic representatives"; and
so on. Worse still, it is not only the courts that have taken up
this project. In response to judicial decisions and the promptings
of the Justice Department, the States themselves, in an attempt to
avoid costly and disruptive Voting Rights Act litigation, have
begun to gerrymander electoral districts according to race. That
practice now promises to embroil the courts in a lengthy process of
attempting to undo, or at least to minimize, the damage wrought by
the system we created. See,
e. g., Shaw, supra; Hays v.
Louisiana, 839 F. Supp. 1188 (WD La. 1993), appeal pending,
No. 93-1539.
The assumptions upon which our vote dilution decisions have been
based should be repugnant to any nation that
906
THOMAS, J., concurring in judgment
strives for the ideal of a color-blind Constitution. "The
principle of equality is at war with the notion that District A
must be represented by a Negro, as it is with the notion that
District B must be represented by a Caucasian, District C by a Jew,
District D by a Catholic, and so on."
Wright v.
Rockefeller, 376 U. S. 52, 66 (1964)
(Douglas, J., dissenting). Despite Justice Douglas' warning sounded
30 years ago, our voting rights decisions are rapidly progressing
toward a system that is indistinguishable in principle from a
scheme under which members of different racial groups are divided
into separate electoral registers and allocated a proportion of
political power on the basis of race. Cf. id., at 63-66. Under our
jurisprudence, rather than requiring registration on racial rolls
and dividing power purely on a population basis, we have simply
resorted to the somewhat less precise expedient of drawing
geographic district lines to capture minority populations and to
ensure the existence of the "appropriate" number of "safe minority
seats."
That distinction in the practical implementation of the concept,
of course, is immaterial.14 The basic premises underlying our
system of safe minority districts and those behind the racial
register are the same: that members of the racial group must think
alike and that their interests are so distinct that the group must
be provided a separate body of representatives in the legislature
to voice its unique point of view. Such a "system, by whatever name
it is called, is a divisive force in a community, emphasizing
differences between candidates and voters that are irrelevant."
Id., at 66. Justice Douglas correctly predicted the results
of state sponsorship of such a theory of representation: "When
racial or religious
14 Cf. Lijphart, Proportionality by Non-PR Methods: Ethnic
Representation in Belgium, Cyprus, Lebanon, New Zealand, West
Germany, and Zimbabwe, in Electoral Laws and Their Political
Consequences 113, 116 (B. Grofman & A. Lijphart eds. 1986)
(describing methods other than separate electoral registers to
allocate political power on the basis of ethnicity or race).
907
lines are drawn by the State, ... antagonisms that relate to
race or to religion rather than to political issues are generated;
communities seek not the best representative but the best racial or
religious partisan."
Id., at 67. In short, few devices could
be better designed to exacerbate racial tensions than the
consciously segregated districting system currently being
constructed in the name of the Voting Rights Act.
As a practical political matter, our drive to segregate
political districts by race can only serve to deepen racial
divisions by destroying any need for voters or candidates to build
bridges between racial groups or to form voting coalitions.
"Black-preferred" candidates are assured election in "safe black
districts"; white-preferred candidates are assured election in
"safe white districts." Neither group needs to draw on support from
the other's constituency to win on election day. As one judge
described the current trend of voting rights cases: "We are bent
upon polarizing political subdivisions by race. The arrangement we
construct makes it unnecessary, and probably unwise, for an elected
official from a white majority district to be responsive at all to
the wishes of black citizens; similarly, it is politically unwise
for a black official from a black majority district to be
responsive at all to white citizens." Dallas County Comm'n, 850 F.
2d, at 1444 (Hill, J., concurring specially).
As this description suggests, the system we have instituted
affirmatively encourages a racially based understanding of the
representative function. The clear premise of the system is that
geographic districts are merely a device to be manipulated to
establish "black representatives" whose real constituencies are
defined, not in terms of the voters who populate their districts,
but in terms of race. The "black representative's" function, in
other words, is to represent the "black interest." Cf.
Shaw,
509 U. S., at 650 (recognizing that systems that "classify and
separate voters by race" threaten "to undermine our system of
representative democ-
908
THOMAS, J., concurring in judgment
racy by signaling to elected officials that they represent a
particular racial group rather than their constituency as a
whole").
Perhaps not surprisingly, the United States has now adopted
precisely this theory of racial group representation, as the
arguments advanced in another case decided today,
Johnson v.
De Grandy, post, p. 997, should show. The case involved a
claim that an apportionment plan for the Florida Legislature should
have provided another Hispanic district in Dade County. Florida
responded to the claim of vote dilution by arguing that the plan
already provided Dade County Hispanics with seats in proportion to
their numbers. According to the Solicitor General, this claim of
proportionality should have been evaluated, not merely on the basis
of the population in the Dade County area where the racial
gerrymandering was alleged to have occurred, but on a statewide
basis. It did not matter, in the Solicitor General's view, that
Hispanic populations elsewhere in the State could not meet the
Gingles geographic compactness test, see 478 U. S., at 50,
and thus could not possibly have controlled districts of their own.
After all, the Solicitor General reasoned, the Hispanic legislators
elected from Hispanic districts in Dade County would represent, not
just the interests of the Dade County Hispanics, but the interests
of all the Hispanics in the State. Brief for United States in
Johnson v.
De Grandy, O. T. 1993, No. 92-519, p. 20.
As the argument shows, at least some careful observers have
recognized the racial gerrymandering in our vote dilution cases for
what it is: a slightly less precise mechanism than the racial
register for allocating representation on the basis of race.
C
While the results we have already achieved under the Voting
Rights Act might seem bad enough, we should recognize that our
approach to splintering the electorate into racially designated
single-member districts does not by any means
909
mark a limit on the authority federal judges may wield to rework
electoral systems under our Voting Rights Act jurisprudence. On the
contrary, in relying on single-member districting schemes as a
touchstone, our cases so far have been somewhat arbitrarily limited
to addressing the interests of minority voters who are sufficiently
geographically compact to form a majority in a single-member
district. See
Gingles, supra, at 49-50. There is no reason
a priori, however, that our focus should be so constrained.
The decision to rely on single-member geographic districts as a
mechanism for conducting elections is merely a political choice-and
one that we might reconsider in the future. Indeed, it is a choice
that has undoubtedly been influenced by the adversary process:
In the cases that have come before us, plaintiffs have focused
largely upon attacking multimember districts and have offered
single-member schemes as the benchmark of an "undiluted"
alternative.
But as the destructive effects of our current penchant for
majority-minority districts become more apparent, cf.
Shaw,
supra, courts will undoubtedly be called upon to reconsider
adherence to geographic districting as a method for ensuring
minority voting power. Already, some advocates have criticized the
current strategy of creating majority-minority districts and have
urged the adoption of other voting mechanisms-for example,
cumulative voting 15 or a system using
15 Under a cumulative voting scheme, a system commonly used in
corporations to protect the interests of minority shareholders, see
R. Clark, Corporate Law § 9.1.3, pp. 361-366 (1986), each voter has
as many votes as there are posts to be filled, and the voter may
cast as many of his votes as he wishes for a single candidate. The
system thus allows a numerical minority to concentrate its voting
power behind a given candidate without requiring that the minority
voters themselves be concentrated into a single district. For a
complete description of the mechanics of cumulative voting, see
Zimmerman, The Federal Voting Rights Act and Alternative Election
Systems, 19 Wm. & Mary L. Rev. 621, 654-657 (1978).
910
THOMAS, J., concurring in judgment
transferable votes 16-that can produce proportional results
without requiring division of the electorate into racially
segregated districts. Cf.,
e. g., Guinier 14-15, 94-101;
Howard & Howard 1660; Karlan, Maps and Misreadings: The Role of
Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.
Civ. Rights-Civ. Lib. L. Rev. 173, 174-175,231236 (1989)
(hereinafter Karlan); Taebel, Engstrom, & Cole, Alternative
Electoral Systems As Remedies for Minority Vote Dilution, 11
Hamline J. of Public Law & Policy 19 (1990); Note, Reconciling
the Right to Vote with the Voting Rights Act, 92 Colum. L. Rev.
1810, 1857-1865 (1992).
Such changes may seem radical departures from the electoral
systems with which we are most familiar. Indeed, they may be
unwanted by the people in the several States who purposely have
adopted districting systems in their electoral laws. But nothing in
our present understanding of the Voting Rights Act places a
principled limit on the authority of federal courts that would
prevent them from instituting a system of cumulative voting as a
remedy under § 2, or even from establishing a more elaborate
mechanism for securing proportional representation based on
transferable votes.17 As some Members of the Court have already
recog-
16 A system utilizing transferable votes is designed to ensure
proportional representation with "mathematical exactness."
Id., at 640. Under such a system, each voter rank orders his
choices of candidates. To win, a candidate must receive a fixed
quota of votes, which may be set by any of several methods. Ballots
listing a given candidate as the voter's first choice are counted
for that candidate until the candidate has secured the quota of
votes necessary for election. Remaining first-choice ballots for
that candidate are then transferred to another candidate, usually
the one listed as the second choice on the ballot. See id., at
640-642. Like cumulative voting, the system allows a minority group
to concentrate its voting power without requiring districting, and
it has the additional advantage of ensuring that "surplus" votes
are transferred to support the election of the minority voters'
next preference.
17 Such methods of voting cannot be rejected out-of-hand as
bizarre concoctions of Voting Rights Act plaintiffs. The system of
transferable votes was a widely celebrated, although unsuccessful,
proposal for English par-
911
nized, geographic districting is not a requirement inherent in
our political system. See,
e. g.,
Davis v.
Bandemer, 478 U. S. 109, 159 (1986) (O'CONNOR, J.,
concurring in judgment) ("Districting itself represents a middle
ground between winner-take-all statewide elections and proportional
representation for political parties"); id., at 160 (noting that
our current practice of accepting district-based elections as a
given is simply a "political judgment"). Rather, districting is
merely another political choice made by the citizenry in the
drafting of their state constitutions. Like other political choices
concerning electoral systems and models of representation, it too
is presumably subject to a judicial override if it comes into
conflict with the theories of representation and effective voting
that we may develop under the Voting Rights Act.
Indeed, the unvarnished truth is that all that is required for
districting to fall out of favor is for Members of this Court to
further develop their political thinking. We should not be
surprised if voting rights advocates encourage us to "revive our
political imagination," Guinier, 14 Cardozo L. Rev., at 1137, and
to consider "innovative and nontraditional remedies" for vote
dilution, Karlan 221, for under our Voting Rights Act
jurisprudence, it is only the limits on our "political imagination"
that place restraints on the standards we may select for defining
undiluted voting systems. Once we candidly recognize that
geographic districting and other aspects of electoral systems that
we have so far placed beyond question are merely political choices,
those practices, too,
liamentary reform in the last century. See generally T. Hare,
Election of Representatives (4th ed. 1873); J. S. Mill,
Considerations on Representative Government (1861). And while it is
an oddity in American political history, cumulative voting in an
at-large system has been employed in some American jurisdictions.
See Weaver, Semi-Proportional and Proportional Representation
Systems in the United States, in Choosing an Electoral System 191,
198 (A. Lijphart & B. Grofman eds. 1984); Hyneman & Morgan,
Cumulative Voting in Illinois, 32 Ill. L. Rev. 12 (1937). See also
Ill. Const., Art. IV, §§ 7, 8 (1870).
912
THOMAS, J., concurring in judgment
may fall under suspicion of having a dilutive effect on minority
voting strength. And when the time comes to put the question to the
test, it may be difficult indeed for a Court that, under
Gingles, has been bent on creating roughly proportional
representation for geographically compact minorities to find a
principled reason for holding that a geographically dispersed
minority cannot challenge districting itself as a dilutive
electoral practice. In principle, cumulative voting and other
non-district-based methods of effecting proportional representation
are simply more efficient and straightforward mechanisms for
achieving what has already become our tacit objective: roughly
proportional allocation of political power according to race.
At least one court, in fact, has already abandoned districting
and has opted instead for cumulative voting on a countywide basis
as a remedy for a Voting Rights Act violation. The District Court
for the District of Maryland recently reasoned that, compared to a
system that divides voters into districts according to race,
"[c]umulative voting is less likely to increase polarization
between different interests," and that it "will allow the voters,
by the way they exercise their votes, to 'district' themselves,"
thereby avoiding government involvement in a process of segregating
the electorate.
Cane v.
Worcester County, 847 F.
Supp. 369, 373 (1994). Cf. Guinier, 14 Cardozo L. Rev., at
1135-1136 (proposing a similar analysis of the benefits of
cumulative voting); Karlan 236 (same). If such a system can be
ordered on a countywide basis, we should recognize that there is no
limiting principle under the Act that would prevent federal courts
from requiring it for elections to state legislatures as well.
D
Such is the current state of our understanding of the Voting
Rights Act. That our reading of the Act has assigned the federal
judiciary the task of making the decisions I have described above
should suggest to the Members of this Court
913
that something in our jurisprudence has gone awry.18 We would be
mighty Platonic guardians indeed if Congress had granted us the
authority to determine the best form of local government for every
county, city, village, and town in America. But under our
constitutional system, this Court is not a centralized politburo
appointed for life to dictate to the provinces the "correct"
theories of democratic representation, the "best" electoral systems
for securing truly "representative" government, the "fairest"
proportions of minority political influence, or, as respondents
would have us hold today, the "proper" sizes for local governing
bodies. We should be cautious in interpreting any Act of Congress
to grant us power to make such determinations.
JUSTICE BLACKMUN suggests that, if we were to interpret the Act
to allow challenges to the size of governmental bodies under § 2,
the Court's power to determine the structure that local governing
bodies must take would be bounded by the constraints that local
customs provide in the form of benchmarks.
Post, at 952-953.
But as JUSTICE O'CONNOR rightly points out, such benchmarks are
themselves arbitrarily selected and would provide no assured limits
on judicial power.
Ante, at 888-891. In my view, the local
standards to which JUSTICE BLACKMUN points today are little
different from the various standards to which the Court has
resorted in the past as touchstones of undiluted voting systems.
The appeal to such standards, which are necessarily arbitrarily
chosen, should not serve to obscure the assumption in the Court's
vote dilution jurisprudence of a sweeping
18JUSTICE STEVENS suggests that the discussion above outlines
policy arguments best addressed to Congress. See
post, at
957. In one sense, that is precisely my point. The
issues I
have discussed above involve policy decisions that are matters best
left to Congress. Our interpretation of the Voting Rights Act,
however, has required federal courts to take over the policymaking
role in the area of voting rights and has forced judges to make
decisions on matters beyond the normal sphere of judicial
competence.
914
THOMAS, J., concurring in judgment
authority to select the electoral systems to be used by every
governing body in each of the 50 States, and to do so based upon
little more than the passing preference of five Members of this
Court for one political theory over another.
A full understanding of the authority that our current
interpretation of the Voting Rights Act assigns to the federal
courts, and of the destructive effects that our exercise of that
authority is presently having upon our body politic, compels a
single conclusion: A systematic reexamination of our interpretation
of the Act is required.
II
Section 2(a) of the Voting Rights Act provides that "[n]o voting
qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political
subdivision in a manner which results in a denial or abridgement of
the right of any citizen of the United States to vote" on account
of race, color, or membership in one of the language minority
groups defined in the Act. 42 U. S. C. § 1973(a). Respondents
contend that the terms "standard, practice, or procedure" should
extend to cover the size of a governmental body. An examination of
the text of § 2 makes it clear, however, that the terms of the Act
do not reach that far; indeed, the terms of the Act do not allow
many of the challenges to electoral mechanisms that we have
permitted in the past. Properly understood, the terms "standard,
practice, or procedure" in § 2(a) refer only to practices that
affect minority citizens' access to the ballot. Districting systems
and electoral mechanisms that may affect the "weight" given to a
ballot duly cast and counted are simply beyond the purview of the
Act.
A
In determining the scope of § 2(a), as when interpreting any
statute, we should begin with the statutory language. See
Connecticut Nat. Bank v.
Germain, 503 U. S. 249, 253-
915
254 (1992). Under the plain terms of the Act, § 2(a) covers only
a defined category of state actions. Only "voting
qualification[s]," "prerequisite[s] to voting," or "standard[s],
practice[s], or procedure[s]" are subject to challenge under the
Act. The first two items in this list clearly refer to conditions
or tests applied to regulate citizens' access to the ballot. They
would cover, for example, any form of test or requirement imposed
as a condition on registration or on the process of voting on
election day.
Taken in isolation, the last grouping of terms-"standard,
practice, or procedure"-may seem somewhat less precise. If we give
the words their ordinary meanings, however-for they have no
technical significance and are not defined in the Act-they would
not normally be understood to include the size of a local governing
body. Common sense indicates that the size of a governing body and
other aspects of government structure do not comfortably fit within
the terms "standard, practice, or procedure." Moreover, we need not
simply treat the terms in isolation; indeed, it would be a mistake
to do so. Cf.
United Sav. Assn. of Tex. v.
Timbers of
Inwood Forest Associates, Ltd., 484 U. S. 365, 371
(1988). Reading the words in context strongly suggests that § 2(a)
must be understood as referring to any standard, practice, or
procedure
with respect to voting. And thus understood, the
terms of the section would not extend to the size of a governmental
body; we would not usually describe the size or form of a governing
authority as a "practice" or "procedure" concerning voting.
But under our precedents, we have already stretched the terms
"standard, practice, or procedure" beyond the limits of ordinary
meaning. We have concluded, for example, that the choice of a
certain set of district lines is a "procedure," or perhaps a
"practice," concerning voting subject to challenge under the Act,
see
Growe, 507 U. S., at 40-41, even though the drawing of a
given set of district lines has nothing to do with the basic
process of allowing a citizen to vote-that is,
916
THOMAS, J., concurring in judgment
the process of registering, casting a ballot, and having it
counted. Similarly, we have determined that the use of multimember
districts, rather than single-member districts, can be challenged
under the Act. See
Gingles, 478 U. S., at 46-51.
Undoubtedly, one of the critical reasons we have read § 2 to reach
such districting decisions is that the choice of one districting
system over another can affect a minority group's power to control
seats in the elected body. See ibid. In that respect, however, the
districting practices we have treated as subject to challenge under
the Act are essentially similar to choices concerning the size of a
governing authority. Just as drawing district lines one way rather
than another, or using one type of districting system rather than
another, can affect the ability of a minority group to control
seats, so can restricting the number of seats that are available.
And if
how districts are drawn is a "practice" concerning
voting, why not conclude that
how many districts are drawn
is a "practice" as well?
To be sure, a distinction can be made between the size of a
local governing body and a districting mechanism. After all, we
would ordinarily think that the size of a government has greater
independent significance for the functioning of the governmental
body than the choice of districting systems apportioning
representation. Interfering with the form of government, therefore,
might appear to involve a greater intrusion on state sovereignty.
But such distinctions between the size of a governing body and
other potential "voting practices" do not, at bottom, depend upon
how closely each is related to "voting," and thus they are not
rooted in any way in the text of § 2(a). On the contrary, while it
may seem obvious that the size of a government is not within the
reach of the Act, if we look to the text of the statute for the
limiting principle that confines the terms "standard, practice, or
procedure" and excludes government size from their reach, we must
conclude that the only line drawn in § 2 excludes many
917
"practices" that we have already decided are subject to
challenge under the Act.
If we return to the Act to reexamine the terms setting out the
actions regulated by § 2, a careful reading of the statutory text
will reveal a good deal more about the limitations on the scope of
the section than suggested above. The terms "standard, practice, or
procedure" appear to have been included in § 2 as a sort of
catchall provision. They seem phrased with an eye to eliminating
the possibility of evasion.19 Nevertheless, they are catchall terms
that round out a list, and a sensible and long-established maxim of
construction limits the way we should understand such general words
appended to an enumeration of more specific items. The principle of
ejusdem generis suggests that such general terms should be
understood to refer to items belonging to the same class that is
defined by the more specific terms in the list. See,
e. g.,
Cleveland v.
United States, 329 U. S. 14, 18
(1946).
Here, the specific items described in § 2(a) ("voting
qualification[sJ" and "prerequisite[sJ to voting") indicate that
Congress was concerned in this section with any procedure, however
it might be denominated, that regulates citizens' access to the
ballot-that is, any procedure that might erect a barrier to prevent
the potential voter from casting his vote. In describing the laws
that would be subject to § 2, Congress focused attention upon
provisions regulating the interaction between the individual voter
and the voting process-on hurdles the citizen might have to cross
in the form of "prerequisites" or "qualifications." The general
terms in the section are most naturally understood, therefore, to
refer to
19 Cf.
South Carolina v.
Katzenbach, 383 U. S. 301, 335 (1966)
(noting that "Congress knew that some of the States ... had
resorted to the extraordinary stratagem of contriving new rules of
various kinds for the sole purpose of perpetuating voting
discrimination in the face of adverse federal court decrees" and
that "Congress had reason to suppose that these States might try
similar maneuvers in the future").
918
THOMAS, J., concurring in judgment
any methods for conducting a part of the voting process that
might similarly be used to interfere with a citizen's ability to
cast his vote, and they are undoubtedly intended to ensure that the
entire voting process-a process that begins with registration and
includes the casting of a ballot and having the ballot counted-is
covered by the Act. Cf.
infra, at 919920. Simply by
including general terms in § 2(a) to ensure the efficacy of the
restriction imposed, Congress should not be understood to have
expanded the scope of the restriction beyond the logical limits
implied in the specific terms of the statute. Cf.
Cleveland,
supra, at 18 ("Under the
ejusdem generis rule of
construction the general words are confined to the class and may
not be used to enlarge it").
Moreover, it is not only in the terms describing the practices
regulated under the Act that § 2(a) focuses on the individual
voter. The section also speaks only in the singular of the right of
"any citizen" to vote. Giving the terms "standard, practice, or
procedure" an expansive interpretation to reach potentially
dilutive practices, however, would distort that focus on the
individual, for a vote dilution claim necessarily depends on the
assertion of a group right. Cf.
Bandemer, 478 U. S., at
150-151 (O'CONNOR, J., concurring in judgment). At the heart of the
claim is the contention that the members of a group collectively
have been unable to exert the influence that their numbers suggest
they might under an alternative system. Such a group right,
however, finds no grounding in the terms of § 2(a).
Of course, the scope of the right that
is protected under
the Act can provide further guidance concerning the meaning of the
terms "standard, practice, or procedure." Under the terms of the
Act, only a "standard, practice, or procedure" that may result in
the "denial or abridgement of the right ... to vote" is within the
reach of § 2(a). But nothing in the language used in § 2(a) to
describe the protection provided by the Act suggests that in
protecting the "right to vote," the section was meant to
incorporate a concept of vot-
919
ing that encompasses a concern for the "weight" or "influence"
of votes. On the contrary, the definition of the terms "vote" and
"voting" in § 14(c)(1) of the Act focuses precisely on access to
the ballot. Thus, § 14(c)(1) provides that the terms "vote" and
"voting" shall encompass any measures necessary to ensure
"registration" and any "other action required by law prerequisite
to voting, casting a ballot, and having such ballot counted
properly and included in the appropriate totals of votes cast." 42
U. S. C. § 1973l(c)(1).
It is true that § 14(c)(1) also states that the term "voting"
"include[s] all action necessary to make a vote
effective,"
ibid. (emphasis added), and the Court has seized on this language
as an indication that Congress intended the Act to reach claims of
vote dilution. See
Allen, 393 U. S., at 566. But if the word
"effective" is not plucked out of context, the rest of § 14(c)(1)
makes clear that the actions Congress deemed necessary to make a
vote "effective" were precisely the actions listed above:
registering, satisfying other voting prerequisites, casting a
ballot, and having it included in the final tally of votes cast.
These actions are described in the section only as examples of the
steps necessary to make a vote effective. See 42 U. S. C. §
1973l(c)(1). And while the list of such actions is not exclusive,
the nature of all the examples that are provided demonstrates that
as far as the Act is concerned, an "effective" vote is merely one
that has been cast and fairly counted. See 393 U. S., at 590, n. 7
(Harlan, J., concurring in part and dissenting in part).
Reading the Act's prohibition of practices that may result in a
"denial or abridgement of the right ... to vote" as protecting only
access to the ballot also yields an interpretation that is
consistent with the Court's construction of virtually identical
language in the Fifteenth Amendment. The use of language taken from
the Amendment suggests that the section was intended to protect a
"right to vote" with the same scope as the right secured by the
Amendment itself; certainly, no reason appears from the text of the
Act for giving
920
THOMAS, J., concurring in judgment
the language a broader construction in the statute than we have
given it in the Constitution. The Court has never decided, however,
whether the Fifteenth Amendment should be understood to protect
against vote "dilution." See
Voinovich v.
Quilter,
507 U. S. 146,
159 (1993). See also
Beer v.
United States, 425 U. S. 130, 142, n. 14
(1976) (noting that there is no decision of this Court holding a
legislative apportionment plan violative of the Fifteenth
Amendment).2o
While the terms of § 2(a) thus indicate that the section focuses
only on securing access to the ballot, it might be argued that
reenactment of § 2 in 1982 should be understood as an endorsement
of the interpretation contained in cases such as
Allen that
the terms "standard, practice, or procedure" were meant to reach
potentially dilutive practices. See
Lorillard v.
Pons, 434 U.
S. 575, 580-581 (1978). It is true that we generally will
assume that reenactment of specific statutory language is intended
to include a "settled judicial interpretation" of that language.
Pierce v.
Underwood, 487 U. S. 552, 567
(1988). And while § 2 was amended in
20 Indeed, in
Mobile v.
Bolden, 446 U. S. 55 (1980), a
plurality of the Court concluded that the Fifteenth Amendment did
not address concerns of dilution at all. See
id., at 65. Cf.
id., at 84, n. 3 (STEVENS, J., concurring in judgment)
(noting that the plurality had concluded that the Fifteenth
Amendment "applies only to practices that directly affect access to
the ballot and hence is totally inapplicable to the case at
bar").
Contrary to JUSTICE STEVENS' suggestions,
post, at 958,
962,
Gomillion v.
Lightfoot, 364 U. S. 339 (1960),
does not indicate that the Fifteenth Amendment, in protecting the
right to vote, incorporates a concern for anything beyond securing
access to the ballot. The
Gomillion plaintiffs' claims
centered precisely on access: Their complaint was not that the
weight of their votes had been diminished in some way, but that the
boundaries of a city had been drawn to prevent blacks from voting
in municipal elections altogether.
Id., at 341.
Gomillion thus "maintains the distinction between an attempt
to exclude Negroes totally from the relevant constituency, and a
statute that permits Negroes to vote but which uses the gerrymander
to contain the impact of Negro suffrage."
Allen v.
State
Bd. of Elections, 393 U. S. 544, 589 (1969)
(Harlan, J., concurring in part and dissenting in part).
921
1982, the amended section did retain the same language that had
appeared in the original Act regulating "standard[s], practice [s],
or procedure[s]." 21 But it was hardly well settled in 1982 that
Allen's broad reading of the terms "standard, practice, or
procedure" in § 5 would set the scope of § 2 as a provision
reaching claims of vote dilution.
On the contrary, in 1980 in
Mobile v.
Bolden,
446 U. S. 55, a
plurality of the Court construed § 2 in a manner flatly
inconsistent with the understanding that those terms were meant to
reach dilutive practices. Emphasizing that the section tracked the
language of the Fifteenth Amendment by prohibiting the use of
practices that might "deny or abridge the right ... to vote," the
Bolden plurality determined that § 2 was "intended to have
an effect no different from that of the Fifteenth Amendment
itself."
Id., at 61. In the plurality's view, however, the
Fifteenth Amendment did not extend to reach dilution claims; its
protections were satisfied as long as members of racial minorities
could "'register and vote without hindrance.'"
Id., at 65.
Bolden remained the last word from this Court interpreting §
2 at the time the section was amended in 1982. Cf.
Rogers v.
Lodge, 458 U.
S. 613, 619, n. 6 (1982). Thus, the reenactment in the amended
section of the same language covering any "standard, practice, or
procedure" and the retention of virtually identical language
protecting against the "denial or abridgement of the right ... to
vote" can hardly be understood as an endorsement of a broad reading
of the section as a provision reaching claims of vote
dilution.22
21 The original § 2 provided that no "standard, practice, or
procedure" should be imposed or applied "to deny or abridge the
right ... to vote." Pub. L. 89-110, §2, 79 Stat. 437.
22 If anything, applying the
Lorillard v.
Pons,
434 U. S. 575
(1978), principle of construction might suggest that, by reenacting
virtually the same language derived from the Fifteenth Amendment to
define the basic interest protected by the Act, Congress intended
to preserve the limitation that the
Bolden plurality found
implicit in that language. It is clear from the terms of the
amendments passed in 1982 that where Congress sought
922
THOMAS, J., concurring in judgment
Finally, as our cases have shown, reading § 2(a) to reach beyond
laws that regulate in some way citizens'
access to the
ballot turns the section into a command for courts to evaluate
abstract principles of political theory in order to develop rules
for deciding which votes are "diluted" and which are not. See
generally
supra, at 894-903. Common sense would suggest that
we should not lightly interpret the Act to require courts to
address such matters so far outside the normal bounds of judicial
competence, and the mere use of three more general terms at the end
of the list of regulated practices in § 2(a) cannot properly be
understood to incorporate such an expansive command into the
Act.
Properly understood, therefore, § 2(a) is a provision designed
to protect access to the ballot, and in regulating "standard[s],
practice [s], and procedure[s]," it reaches only "those state laws
that [relate to] either voter qualifications or the manner in which
elections are conducted." Allen, 393 U. S., at 591 (Harlan, J.,
concurring in part and dissenting in part). The section thus covers
all manner of registration requirements, the practices surrounding
registration (including the selection of times and places where
registration takes place and the selection of registrars), the
locations of polling places, the times polls are open, the use of
paper ballots as opposed to voting machines, and other similar
aspects of the voting process that might be manipulated to deny any
citizen the right to cast a ballot and have it properly counted.
The
to alter the understanding of the Act announced in
Bolden, it did so explicitly in the text of the statute. As
I explain more fully,
infra, at 923-925, the 1982 amendments
modified § 2 to eliminate the requirement under
Bolden that
§ 2 plaintiffs, like plaintiffs under the Fifteenth Amendment, show
that a challenged practice was adopted with a discriminatory
intent, see 446 U. S., at 62-63, and replaced that test with
specific language in § 2(b) setting a standard based simply on
discriminatory
results. See Pub. L. 97-205, § 3, 96 Stat.
134. Had Congress intended to alter the understanding that § 2
protects a concept of the "right to vote" that does not extend to
prohibit vote dilution, it likely would have addressed that aspect
of
Bolden explicitly as well.
923
section does not cover, however, the choice of a multimember
over a single-member districting system or the selection of one set
of districting lines over another, or any other such electoral
mechanism or method of election that might reduce the weight or
influence a ballot may have in controlling the outcome of an
election.
Of course, this interpretation of the terms "standard, practice,
or procedure" effectively means that § 2(a) does not provide for
any claims of what we have called vote "dilution." But that is
precisely the result suggested by the text of the statute. Section
2(a) nowhere uses the term "vote dilution" or suggests that its
goal is to ensure that votes are given their proper "weight." And
an examination of § 2(b) does not suggest any different result. It
is true that in construing § 2 to reach vote dilution claims in
Thornburg v.
Gingles, 478 U. S. 30 (1986), the
Court relied largely on the gloss on § 2(b) supplied in the
legislative history of the 1982 amendments to the Act. See id., at
43-46. But the text of § 2(b) supplies a weak foundation indeed for
reading the Act to reach such claims.
As the Court concluded in
Gingles, the 1982 amendments
incorporated into the Act, and specifically into § 2(b), a
"results" test for measuring violations of § 2(a). That test was
intended to replace, for § 2 purposes, the "intent" test the Court
had announced in
Bolden for voting rights claims under § 2
of the Voting Rights Act and under the Fourteenth and Fifteenth
Amendments. Section 2(a) thus prohibits certain state actions that
may "resul[t] in a denial or abridgement" of the right to vote, and
§ 2(b) incorporates virtually the exact language of the "results
test" employed by the Court in
White v.
Regester,
412 U. S. 755
(1973), and applied in constitutional voting rights cases before
our decision in
Bolden. The section directs courts to
consider whether "based on the totality of circumstances," a state
practice results in members of a minority group "hav[ing] less
opportunity than other members of the electorate to participate
in
924
THOMAS, J., concurring in judgment
the political process and to elect representatives of their
choice." 42 U. S. C. § 1973(b). Cf.
White, supra, at 766;
Whitcomb v.
Chavis, 403 U. S. 124, 149
(1971).
But the mere adoption of a "results" test, rather than an
"intent" test, says nothing about the
type of state laws
that may be challenged using that test. On the contrary, the type
of state law that may be challenged under § 2 is addressed
explicitly in § 2(a). As we noted in
Chisom v.
Roemer, 501 U.
S. 380 (1991), §§ 2(a) and (b) address distinct issues. While §
2(a) defines and explicitly limits the type of voting practice that
may be challenged under the Act, § 2(b) provides only "the test for
determining the legality of such a practice."
Id., at 391.
Thus, as an initial matter, there is no reason to think that § 2(b)
could serve to expand the scope of the prohibition in § 2(a),
which, as I described above, does not extend by its terms to
electoral mechanisms that might have a dilutive effect on group
voting power.
Even putting that concern aside for the moment, it should be
apparent that the incorporation of a results test into the amended
section does not necessarily suggest that Congress intended to
allow claims of vote dilution under § 2. A results test is useful
to plaintiffs whether they are challenging laws that restrict
access to the ballot or laws that accomplish some diminution in the
"proper weight" of a group's vote. Nothing about the test itself
suggests that it is inherently tied to vote dilution claims. A law,
for example, limiting the times and places at which registration
can occur might be adopted with the purpose of limiting black voter
registration, but it could be extremely difficult to prove the
discriminatory intent behind such a facially neutral law. The
results test would allow plaintiffs to mount a successful challenge
to the law under § 2 without such proof.
Moreover, nothing in the language § 2(b) uses to describe the
results test particularly indicates that the test was intended to
be used under the Act for assessing claims of dilution. Section
2(b) directs courts to consider whether, under
925
the "totality of circumstances," members of a minority group
"have less opportunity than other members of the electorate to
participate in the political process and to elect representatives
of their choice." 42 U. S. C. § 1973(b). The most natural reading
of that language would suggest that citizens have an equal
"opportunity" to participate in the electoral process and an
equal
"opportunity" to elect representatives when they have
been given the same free and open access to the ballot as other
citizens and their votes have been properly counted. The section
speaks in terms of an opportunity-a chance-to participate and to
elect, not an assured ability to attain any particular result. And
since the ballot provides the formal mechanism for obtaining access
to the political process and for electing representatives, it would
seem that one who has had the same chance as others to register and
to cast his ballot has had an equal opportunity to participate and
to elect, whether or not any of the candidates he chooses is
ultimately successful.
To be sure, the test in § 2(b) could be read to apply to claims
of vote dilution as well. But to conclude, for example, that a
multimember districting system had denied a group of voters an
equal opportunity to participate in the political process and to
elect representatives, a court would have to embark on the extended
project in political theory that I described above in Part I of
this opinion. In other words, a court would have to develop some
theory of the benchmark undiluted voting system that provides
minorities with the "fairest" or most "equitable" share of
political influence. Undoubtedly, a dizzying array of concepts of
political equality might be described to aid in that task, and each
could be used to attribute different values to different systems of
election. See,
e. g., Still, Political Equality and Election
Systems, 91 Ethics 375 (1981).23 But the statutory command to
deter-
23 See also Banzhaf, Multi-Member Electoral Districts-Do They
Violate the "One Man, One Vote" Principle, 75 Yale L. J. 1309
(1966) (suggesting that how close different districting systems
come to providing persons
926
THOMAS, J., concurring in judgment
mine whether members of a minority have had an equal
"opportunity ... to participate in the political process and to
elect representatives" provides no guidance concerning which one of
the possible standards setting undiluted voting strength should be
chosen over the others. And it would be contrary to common sense to
read § 2(b)'s reference to equal opportunity as a charter for
federal courts to embark on the ambitious project of developing a
theory of political equality to be imposed on the Nation.24
It is true that one factor courts may consider under the results
test might fit more comfortably with an interpretation of the Act
that reaches vote dilution claims. Section 2(b) provides that "one
circumstance" that may be considered in assessing the results test
is the "extent to which members of a protected class have been
elected to office." 42 U. S. c. § 1973(b). Obviously, electoral
outcomes would be relevant to claims of vote dilution (assuming, of
course, that control
equal political "power" can be measured by comparing the
statistical probability under each system that a person's vote will
determine the election result). Cf.
Whitcomb, 403 U. S., at
145, n. 23.
24 In addition, in one respect there is a significant tension
between the terms of the results test and an interpretation of the
Act that reaches vote dilution claims. Section 2(b) provides that a
violation may be established where it is shown that members of a
minority have less opportunity than other members of the electorate
"to participate in the political process and to elect
representatives of their choice." 42 U. S. C. § 1973(b) (emphasis
added). We have held that any challenged "standard, practice, or
procedure" must have
both of these effects to violate the
test outlined in § 2(b). See
Chisom v.
Roemer,
501 U. S. 380,
397 (1991). It is not clear, however, that a potentially dilutive
districting method can satisfy both prongs of the test. The primary
effect of the choice of one districting system over another will be
the direct and mathematically quantifiable impact that the system
will have on a minority group's ability to control a given number
of seats. But even if one assumes that a districting system may
therefore be said to impair a group's "opportunity" to "elect
representatives of its choice," it is difficult to see how a
districting system could be said to impair a group's opportunity to
"participate in the political process," at least if participation
is understood to have any meaning distinct from controlling
seats.
927
of seats has been selected as the measure of effective voting).
But in some circumstances, results in recent elections might also
be relevant for demonstrating that a particular practice concerning
registration or polling has served to suppress minority voting.
Better factors to consider would be figures for voter registration
or turnout at the last election, broken down according to race. But
where such data are not readily available, election results may
certainly be "one circumstance" to consider in determining whether
a challenged practice has resulted in denying a minority group
access to the political process. The Act merely directs courts not
to ignore such evidence of electoral outcomes altogether.
Moreover, the language providing that electoral outcomes may be
considered as "one circumstance" in the results test is explicitly
qualified by the provision in § 2(b) that most directly speaks to
the question whether § 2 was meant to reach claims of vote
dilution-and which suggests that dilution claims are not covered by
the section. The last clause in the subsection states in
unmistakable terms that "nothing in this section establishes a
right to have members of a protected class elected in numbers equal
to their proportion in the population." 42 U. s. C. § 1973(b). As
four Members of the Court observed in
Gingles, there is "an
inherent tension" between this disclaimer of proportional
representation and an interpretation of § 2 that encompasses vote
dilution claims. 478 U. S., at 84 (O'CONNOR, J., concurring in
judgment). As I explained above, dilution claims, by their very
nature, depend upon a mathematical principle. The heart of the
claim is an assertion that the plaintiff group does not hold the
"proper" number of seats. As a result, the principle for deciding
the case must be supplied by an arithmetic ratio. Either the group
has attained the "proper" number of seats under the current
election system, or it has not.
By declaring that the section provides no right to proportional
representation, § 2(b) necessarily commands that the existence or
absence of proportional electoral results should
928
THOMAS, J., concurring in judgment
not become the deciding factor in assessing § 2 claims. But in
doing so, § 2(b) removes from consideration the most logical ratio
for assessing a claim of vote dilution. To resolve a dilution claim
under § 2, therefore, a court either must arbitrarily select a
different ratio to represent the "undiluted" norm, a ratio that
would have less intuitive appeal than direct proportionality, or it
must effectively apply a proportionality test in direct
contravention of the text of the Act 25-hence the "inherent
tension" between the text of the Act and vote dilution claims.
Given that § 2 nowhere speaks in terms of "dilution," an explicit
disclaimer removing from the field of play the most natural
deciding principle in dilution cases is surely a strong signal that
such claims do not fall within the ambit of the Act.26
25 As I discuss more fully below, our cases have pursued the
latter option. See
infra, at 936-944.
26 In
Johnson v.
De Grandy, post, p. 997, the
Court suggests that §2(b) disclaims only a guarantee of success for
minority candidates and thus that it has nothing to say
concerning remedial schemes designed to provide a minority group
proportional control over seats. See
post, at 1014, n. 11.
See also
post, at 1026-1027 (KENNEDY, J., concurring in part
and concurring in judgment). Minority control, of course, mayor may
not result in the election of minority candidates. The Court's
reading of the disclaimer, in my view, distorts the obvious import
of the provision. The clause rejecting a group's right to elect its
own members in proportion to their numbers must be understood as a
disclaimer of a minority group's right to proportional political
power. Otherwise, in practical terms, the clause would be reduced
to a nullity.
It should be clear that a system that gives a minority group
proportional control effectively provides the "right" to elect a
proportionate number of minority candidates that the Act disclaims.
Whether that right is utilized by minority voters to elect minority
candidates is a matter of the voters' choice. The
De Grandy
Court's position seems to be that the proviso is directed, not at a
system intended to guarantee the
ability to elect minority
candidates in proportion to the minority's numbers, but only at a
system that will
invariably guarantee the election of a
proportionate number of minority candidates. Only one system would
fit that description: a system based on a racial register in which
a quota of seats are set aside for members of a minority group. I
think it would be preposterous
929
It is true that the terms "standard, practice, or procedure" in
§ 5 of the Act have been construed to reach districting systems and
other potentially dilutive electoral mechanisms, see,
e. g.,
Allen, 393 U. S., at 569, and Congress has reenacted § 5
subsequent to our decisions adopting that expansive interpretation.
See,
e. g., United States v.
Sheffield Bd. of
Comm'rs, 435 U.
S. 110, 134-135 (1978);
Georgia v.
United States,
411 U. S. 526,
533 (1973). Nevertheless, the text of the section suggests
precisely the same focus on measures that relate to access to the
ballot that appears in § 2. Section 5 requires covered
jurisdictions to obtain preclearance for a change in "any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting." 42 U. S. C. § 1973c. As in § 2,
the specific terms in the list of regulated state actions describe
only laws that would limit access to the ballot. Moreover, § 5
makes the focus on the individual voter and access to the voting
booth even more apparent as the section goes on to state that "no
person shall be denied the right to vote
for failure to
comply with such qualification, prerequisite, standard,
practice, or procedure." 42 U. S. C. § 1973c (emphasis added). This
command makes it explicit that in regulating standards, practices,
or procedures with respect to voting, "Congress was clearly
concerned with changes in procedure with which
to suggest that the disclaimer in § 2(b) was intended solely to
prohibit the use of such a system. Such a device has never, to my
knowledge, been proposed in any voting rights case. Moreover, to
the extent that the decisions in
White and
Whitcomb
can inform our understanding of § 2(b), they suggest that in
expressing a concern that "proportionality" not be used as the
measure of a voting rights violation, Congress was concerned with
proportional electoral power, not merely proportional election of
minority candidates. See,
e. g., Whitcomb, 403 U. S., at 153
(rejecting the "failure of [the minority group] to
have
legislative seats in proportion to its population" as a
sufficient basis for a claim) (emphasis added). The proviso has
been understood in the past simply as a disclaimer of a right to
proportional representation, see,
e. g., Gingles, 478 U. S.,
at 84-86,94 (O'CONNOR, J., concurring in judgment), and I think
that understanding is correct.
930
THOMAS, J., concurring in judgment
voters could
comply." Allen, supra, at 587 (Harlan, J.,
concurring in part and dissenting in part). But it should be
obvious that a districting system, or any other potentially
dilutive mechanism for that matter, is not something with which a
voter can comply. As is the case with § 2, § 5's description of the
terms "standard, practice, or procedure" thus suggests a focus on
rules that regulate the individual voter's ability to register and
cast a ballot, not a more abstract concern with the effect that
various electoral systems might have on the "weight" of the votes
cast by a group that constitutes a numerical minority in the
electorate.
In my view, the tension between the terms of the Act and the
construction we have placed on § 5 at the very least suggests that
our interpretation of § 5 should not be adopted wholesale to supply
the meaning of the terms "standard, practice, or procedure" under §
2. An expansive construction of § 5 was well established in 1980,
yet a plurality of the Court in
Bolden, after focusing on
the terms of the Act, did not adopt a similarly expansive
construction of § 2. Rather, the
Bolden plurality concluded
that § 2 should be strictly limited to have the same reach as the
Fifteenth Amendment, which the plurality interpreted as addressing
only matters relating to access to the ballot. See
Bolden,
446 U. S., at 61, 65. I would reach a similar result here. Where a
careful reading of the language of § 2 dictates a narrow
interpretation of the section, there is no reason for transplanting
our interpretation of the terms of § 5-an interpretation that I
believe is in tension with the text of § 5 itself-to another
section of the Act.27
27 I need not decide in this case whether I would overrule our
decisions construing the terms "standard, practice, or procedure"
in § 5; the challenge here involves only § 2. Although in my view
our construction of § 5 may well be incorrect as a matter of first
impression,
stare decisis would suggest that such an error
in prior decisions may not in itself justify overruling settled
precedent. Determining whether to abandon prior decisions requires
weighing a multitude of factors, one of the most important of which
is the extent to which the decisions in question have proved
unworkable. Cf.
infra, at 936-937. In that regard, while the
practical
931
B
From the foregoing, it should be clear that, as far as the text
of the Voting Rights Act is concerned, "§ 2 does not speak in terms
of 'vote dilution.'"
Gingles, 478 U. S., at 87 (O'CONNOR,
J., concurring in judgment). One might wonder, then, why we have
consistently concluded that "[w]e know that Congress intended to
allow vote dilution claims to be brought under § 2."
Id., at
84. The juxtaposition of the two statements surely makes the result
in our cases appear extraordinary, since it suggests a sort of
statutory construction through divination that has allowed us to
determine that Congress "really meant" to enact a statute about
vote dilution even though Congress did not do so explicitly. In
truth, our method of construing § 2 has been only little better
than that, for the only source we have relied upon for the
expansive meaning we have given § 2 has been the legislative
history of the Act.
We first considered the amended § 2 in
Thornburg v.
Gingles. Although the precise scope of the terms "standard,
practice, or procedure" was not specifically addressed in that
case,
Gingles nevertheless established our current
interpretation of the amended section as a provision that addresses
vote dilution, and in particular it fixed our understanding that
the results test in § 2(b) is intended to measure vote dilution in
terms of electoral outcomes. See id., at 93 (O'CONNOR, J.,
concurring in judgment) (stating that
Gingles made electoral
results the "linchpin" of vote dilution claims). In reaching its
interpretation of § 2, the
Gingles Court re-
differences in the application of §§ 2 and 5 that JUSTICE
KENNEDY points out, see
ante, at 883-884, would not, in my
view, suggest as an original matter that the same terms in the two
sections should be read to have different meanings, JUSTICE
KENNEDY'S observations might suggest that different considerations
would have a bearing on the question whether our past
interpretations should be abandoned in the § 5 and § 2 contexts.
Indeed, in the § 5 context they might suggest a contrary conclusion
to the result I reach under § 2. See
infra, at 936-945.
That, however, is a question for another day.
932
THOMAS, J., concurring in judgment
jected the argument advanced by the United States as
amicus
curiae that § 2(b)'s test based on an equal "opportunity ... to
participate in the political process and to elect representatives"
suggested a focus on nothing more than securing equal
access
to the political process, not a focus on measuring the influence of
a minority group's votes in terms of electoral outcomes. See Brief
for United States as
Amicus Curiae in
Thornburg v.
Gingles, O. T. 1985, No. 83-1968, pp. 7-19. That
understanding of § 2 is, of course, compatible with the
interpretation I have set out above.
In approaching § 2, the
Gingles Court, based on little
more than a bald assertion that "the authoritative source for
legislative intent lies in the Committee Reports on the bill," 478
U. S., at 43, n. 7, bypassed a consideration of the text of the Act
and proceeded to interpret the section based almost exclusively on
its legislative history.28 It was from the legislative history that
the Court culled its understanding that § 2
28 In offering two citations to support the sweeping proposition
that committee reports provide the authoritative source for
legislative intent,
Gingles plainly misread the import of
our prior decisions. Far from giving an unqualified endorsement of
committee reports as a guide to congressional intent, the Court in
Garcia v.
United States, 469 U. S. 70 (1984),
merely indicated that,
when resort to legislative history is
necessary, it is only committee reports, not the various other
sources of legislative history, that should be considered. See id.,
at 76. The Court, however, carefully repeated Justice Jackson's
admonition that "[r]esort to legislative history is only justified
where the face of the [statute] is inescapably ambiguous."
Id., at 76, n. 3 (quoting
Schwegmann Brothers v.
Calvert Distillers Corp., 341 U. S. 384, 395 (1951)
(concurring opinion)). Similarly, in
Zuber v.
Allen,
396 U. S. 168
(1969), we considered the reliability of committee reports only as
a relative matter in comparing them to statements made by
individual Congressmen during floor debates. See id., at 186.
Even if I agreed with Justice Jackson that resort to legislative
history is permissible when the text of a statute is "inescapably
ambiguous," I could not agree with the use the Court has made of
legislative history in interpreting § 2. I think it is clear,
first, that in interpreting § 2 the Court has never undertaken any
inquiry into the meaning of the plain language of the statute to
determine whether it is ambiguous, and second, that the text of § 2
is not riddled with such hopeless ambiguity.
933
is a provision encompassing claims that an electoral system has
diluted a minority group's vote and its understanding that claims
of dilution are to be evaluated based upon how closely electoral
outcomes under a given system approximate the outcomes that would
obtain under an alternative, undiluted norm. See,
e. g.,
id., at 43-51.
Contrary to the remarkable "legislative history first" method of
statutory construction pursued in
Gingles, however, I had
thought it firmly established that the "authoritative source" for
legislative intent was the text of the statute passed by both
Houses of Congress and presented to the President, not a series of
partisan statements about purposes and objectives collected by
congressional staffers and packaged into a committee report. "We
have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute
what it says there."
Germain, 503 U. S., at 253-254. See
also
United States v.
Ron Pair Enterprises, Inc.,
489 U. S. 235,
241-242
(1989); Oneale v.
Thornton, 6 Cranch 53, 68
(1810). Nevertheless, our analysis in
Gingles was marked
conspicuously by the absence of any attempt to pursue a close
reading of the text of the Act. As outlined above, had the Court
addressed the text, it would have concluded that the terms of the
Act do not address matters of vote "dilution."
Moreover, the legislative history of § 2 itself, and the Court's
use of it in
Gingles, aptly illustrate that legislative
history is often used by this Court as "a forensic rather than an
interpretive device,"
Wisconsin Public Intervenor v.
Mortier, 501
U. S. 597, 621 (1991) (SCALIA, J., concurring in judgment), and
is read selectively to support the result the Court intends to
achieve. It is well documented in the history of the 1982
amendments to the Act that § 2 was passed only after a compromise
was reached through the addition of the provision in § 2(b)
disclaiming any right to proportional representation. See S. Rep.
No. 97-417, pp. 2-4 (1982); id., at 94-97 (additional views of Sen.
Hatch). But the views of
934
THOMAS, J., concurring in judgment
the author of that compromise, Senator Dole, hardly coincide
with the gloss the Court has placed on § 2.
According to Senator Dole, amended § 2 would "[a]bsolutely not"
provide any redress to a group of voters challenging electoral
mechanisms in a jurisdiction "if the process is open, if there is
equal access, if there are no barriers, direct or indirect, thrown
up to keep someone from voting or having their vote counted, or
registering, whatever the process may include." 128 Congo Rec.
14133 (1982). Contrary to the Court's interpretation of the section
in
Gingles, Senator Dole viewed § 2 as a provision more
narrowly focused on
access to the processes surrounding the
casting of a ballot, not a provision concerned with ensuring
electoral
outcomes in accordance with some "undiluted" norm.
See S. Rep. No.
97-417, supra, at 193-194 (additional views
of Sen. Dole). The legislative history thus hardly provided
unambiguous support for the Court's interpretation; indeed, it
seems that the Court used what was helpful to its interpretation in
the legislative history and ignored what was not. Cf.
Mortier,
supra, at 617 (SCALIA, J., concurring in judgment).
Of course, as mentioned above,
Gingles did not directly
address the meaning of the terms "standard, practice, or procedure"
in § 2(a). The understanding that those terms extend to a State's
laws establishing various electoral mechanisms dates to our
decision in
Allen, in which we construed the identical terms
in § 5 of the Act. But the Court's method of statutory construction
in
Allen was little different from that pursued in
Gingles, and as the analysis of the text of § 5 above
demonstrates, it similarly yielded an interpretation in tension
with the terms of the Act.
In
Allen, after noting that § 14(c)(1) defined "voting"
to include "all action necessary to make a vote effective," 42 U.
S. C. §
1973l(c)(1), the Court abandoned any further attempt
to construe the text of the Act and went on, instead, to conclude
that the "legislative history on the whole supports the view that
Congress intended to reach any state
935
enactment which altered the election law of a covered State in
even a minor way."
Allen, 393 U. S., at 566. Not
surprisingly, the legislative history relied upon in
Allen
also displayed the typical flaws that one might expect-it was
hardly unequivocal. See id., at 590-591, and n. 9 (Harlan, J.,
concurring in part and dissenting in part) (noting inconsistencies
in the legislative history). Thus, to the extent that
Allen
implicitly has served as the basis for our subsequent
interpretation of the terms of § 2, it hardly can be thought to
provide any surer rooting in the language of the Act than the
method of statutory construction pursued in
Gingles.
Remarkably, thanks to our reliance on legislative history, we
have interpreted § 2 in such a way that four Members of this Court
at one time candidly admitted that "[t]here is an inherent tension
[in § 2] between what Congress wished to do and what it wished to
avoid."
Gingles, 478 U. S., at 84 (O'CONNOR, J., concurring
in judgment). But our understanding of what Congress purportedly
"wished to do" -that is, to allow claims of vote "dilution"-depends
solely on a selective reading of legislative history, whereas
Congress' statement of what it "wished to avoid" appears explicitly
in § 2(b)'s disclaimer of a right to proportional representation. I
can see no logical reason to import the "inherent tension" between
these two imperatives into the Act, when on its face the statute
incorporates only one of two potentially contradictory commands. I
would have thought the key to resolving any such conflict between
the text and the legislative history obvious: The text of the
statute must control, and the text of § 2 does not extend the Act
to claims of dilution.
Were it our function to interpret and apply committee reports or
other pieces of legislative history, rather than Acts of Congress,
I might conclude that we had made the best of a bad situation in
interpreting § 2 of the Voting Rights Act, and that the quagmire
that is § 2 was Congress' creation, not our own. It is apparent,
however, that we have arrived at our current understanding of the
Act, with all of its attend-
936
THOMAS, J., concurring in judgment
ant pitfalls, only by abandoning proper methods of statutory
construction. Our errors in method in past cases ordinarily might
not indicate a need to forsake an established line of precedent.
But here they have produced an "inherent tension" between our
interpretation of § 2 and the text of the Act and have yielded a
construction of the statute that, as I discuss below, is so
unworkable in practice and destructive in its effects that it must
be repudiated.
C
"Stare decisis is not an inexorable command,"
Payne v.
Tennessee, 501 U. S. 808, 828
(1991). Indeed, "when governing decisions are unworkable or are
badly reasoned, this Court has never felt constrained to follow
precedent."
Id., at 827 (internal quotation marks omitted).
The discussion above should make clear that our decision in
Gingles interpreting the scope of § 2 was badly reasoned; it
wholly substituted reliance on legislative history for analysis of
statutory text. In doing so, it produced a far more expansive
interpretation of § 2 than a careful reading of the language of the
statute would allow.
Our interpretation of § 2 has also proved unworkable. As I
outlined above, it has mired the federal courts in an inherently
political task-one that requires answers to questions that are
ill-suited to principled judicial resolution. Under § 2, we have
assigned the federal judiciary a project that involves, not the
application of legal standards to the facts of various cases or
even the elaboration of legal principles on a case-by-case basis,
but rather the creation of standards from an abstract evaluation of
political philosophy.
Worse, our interpretation of § 2 has required us to distort our
decisions to obscure the fact that the political choice at the
heart of our cases rests on precisely the principle the Act
condemns: proportional allocation of political power according to
race. Continued adherence to a line of decisions that necessitates
such dissembling cannot possibly promote what
937
we have perceived to be one of the central values of the policy
of
stare decisis: the preservation of "the actual and
perceived integrity of the judicial process."
Payne, supra,
at 827.
I have endeavored to explain above that the core of any vote
dilution claim is an assertion that the plaintiff group does not
hold seats in the proportion that it should.29 There is no logical
way to avoid reliance on a simple ratio in evaluating such a claim.
And allocation of seats in direct proportion to the minority
group's percentage in the population provides the most logical
ratio to apply as an "undiluted" norm. But § 2 makes it clear that
the Act does not create a right to proportional representation, and
thus dictates that proportionality should not provide the rule of
decision for § 2 claims. See
supra, at 927-928, and n. 26.
Nevertheless, despite the statutory command, in deciding claims of
vote dilution we have turned to proportionality as a guide, simply
for lack of any better alternative.
No formulation of the test for evaluating vote dilution claims
has ever dispensed with the inevitable need to consult a
mathematical formula to decide a case. The factors listed in
White v.
Regester, 412 U. S., at 766-767, resurrected
in the Senate Report on the 1982 amendments to § 2, see S. Rep. No.
97-417, at 28-29, and finally reincorporated into our decision in
Gingles, see 478 U. S., at 44-45, although praised in our
cases as a multifaceted test ensuring that vote dilution is
determined based on the "totality of circumstances," in reality
provide no rule for deciding a vote dilution claim based on
anything other than a numerical principle.
29 I assume for purposes of the analysis here that the measure
of effective votes is control of seats. That is precisely the
measure the Court has applied, both in the past, see,
e. g.,
Gingles, 478 U. S., at 46-51;
id., at 93, 99 (O'CONNOR,
J., concurring in judgment) (noting that the Court had made
electoral results the "linchpin" of dilution claims), and today,
see
Johnson v.
De Grandy, post, at 1014-1015
(equating "political effectiveness" with control of
majority-minority districts).
938
THOMAS, J., concurring in judgment
In
Gingles, we condensed the import of these "factors"
into a formula stating that the "essence" of a vote dilution claim
under § 2 is that "a certain electoral law, practice, or structure
interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by black and white voters
to elect their preferred representatives."
Id., at 47. But
it should be apparent that whether an electoral practice does or
does not reduce the ability of a numerical minority to control the
election of representatives can be determined wholly without
reference to "social and historical conditions."
Ibid. The
dilutive effects of various electoral procedures are matters of
mathematics. The "social and historical conditions" "interact" with
the election mechanism, and thus are relevant in a vote dilution
case, only to the extent that they are important for establishing
that the minority group does in fact define a distinct political
interest group that might assert that its vote has been diluted by
the mechanism at issue. Such social and historical considerations,
however, cannot supply the answer to the ultimate question whether
the group's vote has been
diluted.
In reality, the list of
White factors provides nothing
more than just that: a list of possible considerations that might
be consulted by a court attempting to develop a
gestalt view
of the political and racial climate in a jurisdiction, but a list
that cannot provide a rule for deciding a vote dilution claim.
Take, for example, a case in which a district court determines that
a minority group constituting 34% of the population in a certain
jurisdiction has suffered discrimination in the past, that the
group currently bears the effects of that discrimination, and that
there has been a history of racial campaigning in the jurisdiction.
Cf.
White, supra, at 766-767. How can these facts possibly
answer the question whether the group's votes have been diluted if
the group controls two rather than three seats in a lO-member
governing body? Will the answer to the ultimate question change if
the first two factors are found, but the third is not? Obviously,
the various "fac-
939
tors," singly or in any combination, cannot provide a principle
for determining the result. What one must know to decide the case
is whether 20% of the seats in the government is sufficient to
reflect "undiluted" voting strength, or if 30% should be
required.
Of course, as suggested above, the
White factors may be
relevant to determining as a threshold matter whether the minority
group is a distinct political group that should be able to assert a
claim of dilution. But after
Gingles, the inquiry into
whether race defines political interest effectively has been boiled
down to the weakened test for minority "political cohesiveness" and
majority bloc voting embodied in the second and third
Gingles preconditions. See 478 U. S., at 51. Once a
plaintiff group establishes that it is mathematically possible for
it to control another seat (that is, that it satisfies the first
Gingles precondition of size and geographic compactness),
see id., at 50, and that it is a distinct political group (that is,
that it can show political cohesion and majority bloc voting), the
only question remaining in the vote dilution claim is whether the
current number of seats is the proper number or not. The other
White factors have become essentially superfluous. They may
be dutifully intoned by courts performing the empty ritual of
applying the "totality of circumstances" test, but they can provide
no guidance concerning whether the current allocation of seats
constitutes "dilution." Cf.
Gingles, supra, at 92-93
(O'CONNOR, J., concurring in judgment) (suggesting that the basic
contours of a dilution claim require no reference to most of the
White factors).
In short, it should be clear that the factors listed in
Gingles-in their various incarnations and by whatever names
they are known-are nothing but puffery used to fill out an
impressive verbal formulation and to create the impression that the
outcome in a vote dilution case rests upon a reasoned evaluation of
a variety of relevant circumstances. The "totality of
circumstances" test outlined in
Gingles thus
940
THOMAS, J., concurring in judgment
serves to obscure the inherent conflict between the text of the
Act and an underlying reliance on proportionality.
The resort to proportionality in our cases should hardly come as
a surprise. Before § 2 was amended in 1982, and thus before the Act
explicitly disavowed a right to proportional representation, some
Members of the Court recognized the inevitable drift toward
proportional representation that would occur if the test outlined
in
White were used to evaluate vote dilution claims. As
Justice Stewart, writing for four Members of the Court, observed,
the factors listed in
White amounted to little more than
"gauzy sociological considerations," and it did not appear that
"they could, in any principled manner, exclude the claims of any
discrete political group that happens, for whatever reason, to
elect fewer of its candidates
than arithmetic indicates it
might." Bolden, 446 U. S., at 75, n. 22 (emphasis added).
Indeed, Justice Stewart was correct in concluding that "the
putative limits [imposed by the
White factors] are bound to
prove illusory if the express purpose informing their application
would be," as our vote dilution cases have assumed, "to redress the
inequitable distribution of political influence."
Ibid.
(internal quotation marks omitted).
In fact, the framework established by this Court for evaluating
vote dilution claims in
Gingles was at its inception
frankly, and in my view correctly, labeled as setting a rule of
roughly proportional representation. See
Gingles, supra, at
91, 93, 97-99 (O'CONNOR, J., concurring in judgment). Nothing has
happened in the intervening years to change the basic import of the
Gingles test. Yet we have continued to apply the same
Gingles framework, see,
e. g., Growe v.
Emison, 507 U.
S. 25 (1993), all the while suggesting that we are pursuing
merely a "totality of the circumstances" test.
In another case decided today, the Court reconfirms the unstated
centrality of proportional results in an opinion that demonstrates
the obfuscation that must come to characterize our Voting Rights
Act rulings if we continue to entertain
941
dilution claims while pretending to renounce reliance on
proportionality as a rule of decision. In
Johnson v.
De
Grandy, post, p. 997, the Court assures us that proportionality
does not provide the principle for deciding vote dilution claims.
Post, at 1000, 1017-1021. Rather, the result in each case
must depend on a searching inquiry into the ever-nebulously defined
"totality of circumstances."
Post, at 1000.
But after the
Gingles preconditions have been
established,
post, at 1008-1009, and after
White
factors such as a history of discrimination have been found, see
post, at 1013, where does the Court turn for a deciding
principle to give some meaning to these multifarious facts, which
taken individually would each appear to count in favor of a finding
of vote dilution? Quite simply, the Court turns to
proportionality:
"Treating equal political opportunity as the focus of the
enquiry, we do not see how these district lines, apparently
providing political effectiveness [that is, majority-minority
districts] in proportion to voting-age numbers, deny equal
political opportunity."
Post, at 1014. See also
post,
at 1013 (noting that in assessing "dilutive effect," the "pertinent
features" of the districting system at issue "were majorityminority
districts in substantial proportion to the minority's share of
voting-age population");
post, at 1025 (O'CONNOR, J.,
concurring) (the Court's central teaching in
De Grandy "is
that proportionality-defined as the relationship between the number
of majority-minority voting districts and the minority group's
share of the relevant population-is
always relevant evidence
in determining vote dilution"). JUSTICE O'CONNOR'S comment about
the Court's holding in
Davis v.
Bandemer, 478 U. S. 109 (1986), is
equally applicable to the course pursued in
De Grandy today:
"[The Court's decision] ultimately rests on a political preference
for proportionality- ... a conviction that the greater the
departure from proportionality, the more suspect an apportionment
plan becomes." 478 U. S., at 159 (opinion concurring in
judgment).
942
THOMAS, J., concurring in judgment
To be sure, the
De Grandy Court repeatedly declares that
proportionality is not a defense to a vote dilution claim. See
post, at 1017-1021. That, of course, must be the stated rule
if we are not to abandon openly the explicit disclaimer enacted by
Congress in § 2(b). But given the Court's
equivocationproportionality is still
always relevant-and the
Court's ultimate analysis, such assurances ring hollow. The Court
decides the question of dilution based upon proportionality. And it
is apparent from the reasons the Court gives for rejecting
maximization as a rule for decision that proportionality will drive
results in future dilution cases as well.
Consider, for example, the hypothetical rehearsed by the Court
concerning a jurisdiction with a 10-member elected body and a 40%
minority voting population. See
post, at 1016-1017. Assume
that as currently constituted the districting scheme creates four
majority-minority districts. Even if it is established in this
hypothetical jurisdiction that all of the
Gingles factors
have been proved (as was found in
De Grandy), and that there
are both a history of discrimination and continuing discrimination
(as was found in
De Grandy), can it be seriously contended
that the minority group can succeed, under any combination of
facts, in bringing a § 2 challenge to require the creation of the
mathematically possible seven majority-minority districts? The
Court recognizes that it would be "absurd" to think that § 2 would
allow such a result. That, after all, would give the group
"effective political power 75 percent above its
numerical
strength"-that is, above its proportion in the population.
Post, at 1017 (emphasis added). But if it is absurd to give
the members of the group seven seats, why is it not equally
ridiculous to give them six, or five? Or, indeed, anything beyond
the four that would secure them seats in proportion to their
numbers in the population?
If it is absurd to give members of the group seven seats, that
is because, as the Court tacitly acknowledges, we assume that seats
in accord with "numerical strength" will
943
ensure the group "equal" "political effectiveness." Thus,
deliberately drawing districts so as to give, under the assumptions
of the hypothetical, 40% of the population control over 50% of the
seats, while leaving 60% of the population with control of a
similar 50% of the seats, would seem to us unfair. Greater
deviations from proportionality may appear more patently "absurd"
than lesser, but the dividing line between what seems fair and what
does not remains the same. The driving principle is
proportionality.30
Few words would be too strong to describe the dissembling that
pervades the application of the "totality of circumstances" test
under our interpretation of § 2. It is an empty incantation-a mere
conjurer's trick that serves to hide the
30 Of course, throughout this discussion concerning the Court's
inevitable resort to proportionality, I have assumed that effective
votes will be measured in terms of control of seats. See n. 29,
supra. As JUSTICE O'CONNOR suggests in her opinion in
De
Grandy, if we were to measure the effectiveness of votes not
simply in terms of numbers of seats, but in terms of some more
amorphous concept of "access to the political process," there would
be no need to make proportionality "dispositive." See
De Grandy,
post, at 1026 (O'CONNOR, J., concurring). Cf.
White, 412
U. S., at 765-766. But
Gingles made control of seats the
determining factor in dilution claims; that is the measure that has
been applied in cases under
Gingles, and it remains the
measure applied in practice in the cases handed down today. In my
view, it is unrealistic to think that the Court will now reverse
course and establish some broader understanding of "political
effectiveness" under the "totality of circumstances" test, after it
consistently has pursued a measure of effective voting that makes
electoral results the "linchpin" of dilution claims. See 478 U. S.,
at 93 (O'CONNOR, J., concurring in judgment).
Indeed, any change in course is made more unlikely by one very
practical consideration. As the Court's decision in
De
Grandy perhaps suggests, measuring political effectiveness by
any method other than counting numbers of seats can rapidly become
a wholly unmanageable task. As I suggested above, see n. 6,
supra, one of the reasons the Court seized upon control of
seats as a measure of effective political participation is simply
that control of seats provides the "most easily measured indicia of
political power."
Bandemer, 478 U. S., at 157 (O'CONNOR, J.,
concurring in judgment).
944
THOMAS, J., concurring in judgment
drive for proportionality that animates our decisions. As
actions such as that brought in
Shaw v.
Reno,
509 U. S. 630
(1993), have already started to show, what might euphemistically be
termed the benign "creation of majority-minority single-member
districts to enhance the opportunity of minority groups to elect
representatives of their choice" might also more simply and more
truthfully be termed "racial gerrymandering." Similarly, what we
might call a "totality of circumstances" test to determine whether
an electoral practice "interacts with social and historical
conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives,"
Gingles, 478 U. S., at 47, might more accurately be called a
test for ensuring proportional electoral results according to race.
Cf. id., at 97 (O'CONNOR, J., concurring in judgment).
In my view, our current practice should not continue. Not for
another Term, not until the next case, not for another day. The
disastrous implications of the policies we have adopted under the
Act are too grave; the dissembling in our approach to the Act too
damaging to the credibility of the Federal Judiciary. The "inherent
tension"-indeed, I would call it an irreconcilable conflict-between
the standards we have adopted for evaluating vote dilution claims
and the text of the Voting Rights Act would itself be sufficient in
my view to warrant overruling the interpretation of § 2 set out in
Gingles. When that obvious conflict is combined with the
destructive effects our expansive reading of the Act has had in
involving the Federal Judiciary in the project of dividing the
Nation into racially segregated electoral districts, I can see no
reasonable alternative to abandoning our current unfortunate
understanding of the Act.
Stare decisis is a powerful concern, especially in the
field of statutory construction. See
Patterson v.
McLean
Credit Union, 491
U. S. 164, 172 (1989). See also
Fogerty v.
Fantasy,
Inc., 510 U. S.
517, 538-539 (1994) (THOMAS, J., concurring in judgment). But
"we have never applied
stare decisis
945
mechanically to prohibit overruling our earlier decisions
determining the meaning of statutes."
Monell v.
New York
City Dept. of Social Servs., 436 U. S. 658, 695
(1978).
Stare decisis should not bind the Court to an
interpretation of the Voting Rights Act that was based on a flawed
method of statutory construction from its inception and that in
every day of its continued existence involves the Federal Judiciary
in attempts to obscure the conflict between our cases and the
explicit commands of the Act. The Court has noted in the past that
stare decisis" 'is a principle of policy,'"
Payne,
501 U. S., at 828 (quoting
Helvering v.
Hallock,
309 U. S. 106,
119 (1940)), and it "'is usually the wise policy, because in most
matters it is more important that the applicable rule of law be
settled than it be settled right.''' 501 U. S., at 827 (quoting
Burnet v.
Coronado Oil &
Gas Co., 285 U. S. 393, 406 (1932)
(Brandeis, J., dissenting)). I cannot subscribe to the view that in
our decisions under the Voting Rights Act it is more important that
we have a settled rule than that we have the right rule. When,
under our direction, federal courts are engaged in methodically
carving the country into racially designated electoral districts,
it is imperative that we stop to reconsider whether the course we
have charted for the Nation is the one set by the people through
their representatives in Congress. I believe it is not.
I cannot adhere to the construction of § 2 embodied in our
decision in
Thornburg v.
Gingles. I reject the
assumption implicit in that case that the terms "standard,
practice, or procedure" in § 2(a) of the Voting Rights Act can be
construed to cover potentially dilutive electoral mechanisms.
Understood in context, those terms extend the Act's prohibitions
only to state enactments that regulate citizens' access to the
ballot or the processes for counting a ballot. The terms do not
include a State's or political subdivision's choice of one
districting scheme over another. The terms certainly do not
include, as respondents would argue, the size of a local governing
authority.
946
III
For the foregoing reasons, I agree with the Court's conclusion
that the size of a governing body is not subject to challenge under
§ 2 of the Voting Rights Act. I therefore concur in the Court's
judgment reversing the judgment below and remanding for
consideration of respondents' constitutional claim of intentional
discrimination.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
Five Justices today agree that the size of a governing body is a
"standard, practice, or procedure" under § 2 of the Voting Rights
Act of 1965 (Act), as amended, 42 U. S. C. § 1973. A different five
Justices decide, under three separate theories, that voting rights
plaintiffs cannot bring § 2 dilution challenges based on size. I,
however, believe that the Act, its history, and our own precedent
require us to conclude not only that the size of a governing body
is a "standard, practice, or procedure" under § 2, but also that
minority voters may challenge the dilutive effects of this practice
by demonstrating their potential to elect representatives under an
objectively reasonable alternative practice. Accordingly, I dissent
from the Court's decision that minority voters cannot bring § 2
vote dilution challenges based on the size of an existing
government body.
I
Section 2(a) of the Act prohibits the imposition or application
of any "voting qualification or prerequisite to voting, or
standard, practice, or procedure" that "results in a denial
or abridgement of the right of any citizen of the United States to
vote on account of race or color." 42 U. S. C. § 1973(a) (emphasis
added). Section 5 parallels § 2 by requiring certain jurisdictions
to preclear with the Attorney General a change in "any voting
qualification or prerequisite to voting, or
standard, practice,
or procedure with respect to voting." 42 U. S. C. § 1973c
(emphasis added). Under the broad inter-
947
pretation that this Court, Congress, and the Attorney General
consistently have given the Act in general and § 5 in particular,
the practice of electing a single commissioner, as opposed to a
multimember commission, constitutes a "standard, practice, or
procedure" under § 2.
Nearly 30 years of precedent admonish us that the Act, which was
adopted "for the broad remedial purpose of 'rid[ding] the country
of racial discrimination in voting,'"
Chisom v.
Roemer, 501 U.
S. 380, 403 (1991), quoting
South Carolina v.
Katzenbach, 383 U. S. 301, 315
(1966), should be given "the broadest possible scope,"
Allen
v.
State Bd. of Elections, 393 U. S. 544, 567
(1969). Because "the Act itself nowhere amplifies the meaning of
the phrase 'standard, practice, or procedure with respect to
voting,'" the Court "ha[s] sought guidance from the history and
purpose of the Act."
Dougherty County Bd. of Ed. v.
White, 439 U.
S. 32, 37 (1978); see also
McCain v.
Lybrand,
465 U. S. 236,
246 (1984) (the Act must "be interpreted in light of its
prophylactic purpose and the historical experience which it
reflects").
Consistent with the Act's remedial purposes, this Court has held
that a wide variety of election- and voting-related practices fit
within the term "standard, practice, or procedure." Among the
covered practices are the annexation of land to enlarge city
boundaries, see
Perkins v.
Matthews, 400 U. S. 379,
388 (1971), and
Pleasant Grove v.
United States,
479 U. S. 462,
467 (1987); a rule requiring employees to take leaves of absence
while they campaign for elective office, see
Dougherty County
Bd. of Ed., 439 U. S., at 34; candidate filing dates and other
procedural requirements, see
Whitley v.
Williams,
decided with
Allen v.
State Bd. of Elections, supra;
Hadnott v.
Amos, 394 U. S. 358, 365
(1969);
NAACP v.
Hampton County Election Comm'n,
470 U. S. 166,
176-177 (1985); and candidate residency requirements, see
City
of Rome v.
United States, 446 U. S. 156, 160
(1980).
Specifically, this Court long has treated a change in the size
of a governing authority as a change in a "standard,
948
practice, or procedure" with respect to voting. In
City of
Rome, 446 U. S., at 161, it noted that it "is not disputed"
that an expansion in the size of a board of education was "within
the purview of the Act" and subject to preclearance under § 5. In
City of Lockhart v.
United States, 460 U. S. 125, 131
(1983), it stated that a change from a three-member commission to a
five-member commission was subject to § 5 preclearance. And, most
recently, it said that the term "standard, practice, or procedure
with respect to voting" included a change in the size of a
governing authority or an increase or decrease in the number of
elected offices.
Presley v.
Etowah County Comm'n,
502 U. S. 491,
500 (1992).
This conclusion flowed naturally from the holding in
Bunton v.
Patterson, 393 U. S. 544 (1969),
that a change from an elected to an appointed office was a
"standard, practice, or procedure with respect to voting." In
Bunton, the Court reasoned that the power of a citizen's
vote is affected by the change because the citizen has been
"prohibited from electing an officer formerly subject to the
approval of the voters."
Id., at 570. The reverse is also
true: A change from an appointed to an elected office affects a
citizen's voting power by increasing the number of officials for
whom he may vote. See
McCain v.
Lybrand, 465 U. S. 236 (1984).
And, as the Court recognized in
Presley, a change in the
size of a governing authority is a "standard, practice, or
procedure with respect to voting" because the change "increase[s]
or diminish[es] the number of officials for whom the electorate may
vote," 502 U. S., at 503; this change bears "on the substance of
voting power" and has "a direct relation to voting and the election
process."
Ibid.
To date, our precedent has dealt with § 5 challenges to a change
in the size of a governing authority, rather than § 2 challenges to
the existing size of a governing body. I agree with JUSTICE
O'CONNOR,
ante, at 886-887, that, as a textual matter,
"standard, practice, or procedure" under § 2 is at
949
least as broad as "standard, practice, or procedure with respect
to voting" under § 5. In fact, because of the "close connection"
between §§ 2 and 5, we interpret them similarly. See
Chisom
v.
Roemer, 501 U. S., at 402 (concluding that it would be
"anomalous" to do otherwise). And in the context of § 2, the Court
stated: "Section 2 protected the right to vote, and it did so
without making any distinctions or imposing any limitations as to
which elections would fall within its purview."
Id., at 392.
See also
Houston Lawyers' Assn. v.
Attorney General of
Tex., 501 U. S.
419 (1991) (rejecting a "single-member-office" exception to §
2).
Congress repeatedly has endorsed the broad construction this
Court has given the Act in general and § 5 in particular.1
Significantly, when Congress considered the 1982 amendments to the
Voting Rights Act, it made no effort to curtail the application of
§ 5 to changes in size, in the face of the longstanding practice of
submitting such changes for preclearance, and on the heels of this
Court's recognition just two years earlier that it was "not
disputed" that a change in the size of a governing body was covered
under § 5. See
City of Rome, 446 U. S., at 161. Similarly,
the Attorney General, whose construction of the Act "is entitled to
considerable deference,"
NAACP v.
Hampton County Election
Comm'n, 470 U. S., at 178-179, for years has required §5
preclearance of the expansion or reduction of a governing
1 See
Georgia v.
United States, 411 U. S. 526, 533 (1973)
("After extensive deliberations in 1970 on bills to extend the
Voting Rights Act, during which the
Allen case was
repeatedly discussed, the Act was extended for five years, without
any substantive modification of § 5") (footnote omitted);
Dougherty County Ed. of Ed. v.
White, 439 U. S. 32, 39 (1978)
("Again in 1975, both the House and Senate Judiciary Committees, in
recommending extension of the Act, noted with approval the 'broad
interpretations to the scope of Section 5' in
Allen and
Perkins v.
Matthews [
400 U. S. 379
(1971)]"); NAACP v.
Hampton County Election Comm'n,
470 U. S. 166,
176 (1985) (in the 1982 extension of the Act, "Congress
specifically endorsed a broad construction" of § 5).
950
body.2 It is not surprising that no party to this case argued
that the size of a governing authority is not a "standard,
practice, or procedure."
In light of this consistent and expansive interpretation of the
Act by this Court, Congress, and the Attorney General, the Act's
"all-inclusive" definition of "standard, practice, or procedure"
cannot be read to exclude threshold coverage of challenges to the
size of a governing authority. As five Members of the Court today
agree, the size of a governing authority is a "standard, practice,
or procedure" with respect to voting for purposes of § 2 as well as
§ 5 of the Voting Rights Act.
II
Although five Justices agree that the size of a governing body
is a "standard, practice, or procedure" under § 2, a like number of
Justices conclude, under varying rationales, that Voting Rights
plaintiffs nonetheless cannot bring size challenges under § 2. This
conclusion is inconsistent with our precedent giving the Act "'the
broadest possible scope' in combating racial discrimination,"
Chisom, 501 U. S., at 403, quoting Allen, 393 U. S., at 567,
and with the vote-dilution
2 See Hearings on S. 1992 before the Subcommittee on the
Constitution of the Senate Committee on the Judiciary, 97th Cong.,
2d Sess., 1748 (1982) (noting Attorney General's objection in 1971
to proposed reduction in the size of a school board); id., at 1751
(1971 objection to expansion of a parish council); id., at 1782
(1980 objection to decrease in number of city council members);
id., at 1384-1385 (the Voting Rights Act afforded protection
against "[s]hifts from ward to at-large elections, from plurality
win to majority vote, from slating to numbered posts, annexations
and
changes in the size of electoral bodies," that "could
... deprive minority voters of fair and effective procedures for
electing candidates of their choice") (statement of Drew S. Days
III, former Assistant Attorney General for Civil Rights) (emphasis
added).
Since covered jurisdictions routinely have submitted changes in
the size of their legislative bodies for preclearance, it is not
surprising that petitioners concede that a
change in the
size of the Bleckley County Commission would be subject to § 5
preclearance. Tr. of Oral Arg. 4, 13.
951
analysis prescribed in
Thornburg v.
Gingles,
478 U. S. 30
(1986).
To prevail in a vote-dilution challenge, minority voters must
show that they "possess the
potential to elect
representatives
in the absence of the challenged structure
or practice."
Id., at 50, n. 17 (second emphasis supplied).3
There is widespread agreement, see
ante, at 880 (opinion of
KENNEDY, J., and REHNQUIST, C. J.);
ante, at 887 (opinion of
O'CONNOR, J.), that minority voters' potential "in the absence of"
the allegedly dilutive mechanism must be measured against the
benchmark of an alternative structure or practice that is
reasonable and workable under the facts of the specific case.4
By all objective measures, the proposed five-member Bleckley
County Commission presents a reasonable, workable benchmark against
which to measure the practice of electing a sole commissioner.
First, the Georgia Legislature specifically authorized a
five-member commission for Bleckley County. 1985 Ga. Laws 4406.
Moreover, a fivemember commission is the most common form of
governing authority in Georgia. See Georgia Dept. of Community
Af-
3 Although
Gingles dealt with the use of multimember
districts, the analysis it prescribes is applicable in certain
other vote-dilution contexts, such as a claim of "vote
fragmentation" through single-member districts, see
Growe v.
Emison, 507 U.
S. 25, 37-42 (1993), or the case before us.
4 As the United States explains, the minority group must be
permitted to establish that, under "a proposed alternative voting
arrangement that is reasonable in the legal and factual context of
a particular case," it could constitute a majority. Brief for
United States as
Amicus Curiae 8. The Court of Appeals
followed this approach, concluding that "it is appropriate to
consider the size and geographical compactness of the minority
group within a restructured form of the challenged system when the
existing structure is being challenged as dilutive"
(emphasis in original).
955 F.2d
1563, 1569 (CAll 1992). See also
Carrollton Branch of
NAACP v.
Stallings, 829 F.2d
1547 (CAll 1987) (remand of challenge to solecommissioner
system with instructions to consider size and geographic
compactness within proposed three- and five-member commission forms
of government).
952
fairs, County Government Information Catalog (1989) (Table 1.A:
Form of Government) (76 of Georgia's 159 counties had five
commissioners, including 25 counties smaller than Bleckley County).
Bleckley County, as one of a small and dwindling number of counties
in Georgia still employing a sole commissioner, markedly departs
from practices elsewhere in Georgia. This marked "depart[ure] ...
from practices elsewhere in the jurisdiction ... bears on the
fairness of [the sole commissioner's] impact." S. Rep. No. 97-417,
p. 29, n. 117 (1982). Finally, the county itself has moved from a
single superintendent of education to a school board with five
members elected from single-member districts, providing a workable
and readily available model for commission districts. Thus, the
proposed five-member baseline is reasonable and workable.
In this case, identifying an appropriate baseline against which
to measure dilution is not difficult. In other cases, it may be
harder. But the need to make difficult judgments does not "justify
a judicially created limitation on the coverage of the broadly
worded statute, as enacted and amended by Congress."
Chisom,
501 U. S., at 403. Vote dilution is inherently a relative concept,
requiring a highly "flexible, fact-intensive" inquiry,
Gingles, 478 U. S., at 46, and calling for an exercise of
the "court's overall judgment, based on the totality of
circumstances and guided by those relevant factors in the
particular case," as mandated by Congress. S. Rep. No. 97-417, at
29, n. 118. Certainly judges who engage in the complex task of
evaluating reapportionment plans and examining district lines will
be able to determine whether a proposed baseline is an appropriate
one against which to measure a claim of vote dilution based on the
size of a county commission.
There are, to be sure, significant constraints on size
challenges. Minority plaintiffs, who bear the burden of
demonstrating dilution, also bear the burden of demonstrating
that
953
their proposed benchmark is reasonable and workable. One
indication of a benchmark's reasonableness is its grounding in
history, custom, or practice. This consideration will discourage
size challenges to traditional single-member executive offices,
such as governors and mayors, or even sheriffs or clerks of court.
By tradition and practice, these executive positions are occupied
by one person, so plaintiffs could rarely point to an objectively
reasonable alternative size that has any foundation in the past or
present. Cf. The Federalist No. 69, p. 415 (C. Rossiter ed. 1961)
(A. Hamilton) ("[T]he executive authority, with few exceptions, is
to be vested in a single magistrate"). The sole commissioner, by
contrast, holds plenary legislative, as well as executive, power.
Ga. Code Ann. § 36-5-22.1 (1993). A one-member legislature, far
from being the norm, is an anomaly. Accordingly, the Eleventh
Circuit, while permitting § 2 challenges to the practice of
electing a sole commissioner, has held that this provision cannot
be used to alter the practice of electing a single person to
offices such as lieutenant governor, sheriff, probate judge, and
tax collector. See
Dillard v.
Crenshaw County,
831 F.2d
246, 251 (1987);
United States v.
Dallas County
Comm'n, 850 F.2d
1430, 1432, n. 1 (1988), cert. denied, 490 U. S. 1030
(1989).5
Additionally, every successful vote-dilution challenge will be
based on the "totality of the circumstances," often including the
lingering effects of past discrimination. S. Rep. No. 97-417, at
28-30. Not every racial or language minority that constitutes 5% of
the population has a claim to have a governing authority expanded
to 20 members in order to give them an opportunity to elect a
representative. Instead, the voters would have to prove that a
20-
5 Of course, this is not to suggest that single-member executive
offices are not within the scope of §2, see
Houston Lawyers'
Assn. v.
Attorney General of Tex., 501 U. S. 419, 425-428
(1991), but only that they are not generally susceptible to size
challenges under § 2.
954
member governing authority was a reasonable benchmarkwhich, of
course, respondents could not do here-and that their claim
satisfied the three
Gingles preconditions, 478 U. S., at 49,
and was warranted under the totality of the circumstances.6
6 The Senate Report accompanying the 1982 amendments to the Act
directed that the vote-dilution inquiry include an examination of
the factors identified in
White v.
Regester, 412 U. S. 755 (1973), and
refined and developed in
Zimmer v.
McKeithen,
485 F.2d
1297 (CA5 1973) (en banc), aff'd,
424 U. S. 636 (1976)
(per curiam). This nonexclusive list of factors, now known
variously as the
Regester-Zimmer factors or "Senate Report
factors," includes "the extent of any history of official
discrimination ... that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in
the democratic process; ... the extent to which the state or
political subdivision has used unusually large election districts,
majority vote requirements, anti-single shot provisions, or other
voting practices or procedures that may enhance the opportunity for
discrimination against the minority group; ... [and] the extent to
which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as
education, employment and health, which hinder their ability to
participate effectively in the political process." S. Rep. No.
97-417, pp. 28-29 (1982).
In this case, for example, the District Court found that, until
the passage of federal civil rights laws, Bleckley County "enforced
racial segregation in all aspects of local government-courthouse,
jails, public housing, governmental services-and deprived its black
citizens of the opportunity to participate in local government."
Hall v.
Holder, 757 F. Supp. 1560, 1562 (MD Ga.
1991). Until the passage of the Voting Rights Act of 1965, "black
citizens were virtually prohibited from registering to vote in
Bleckley County."
Id., at 1563. Until 1984, there were no
African-American voting registrars and no voter registration in
places where MricanAmericans normally congregated.
Ibid.
From 1978 until 1986, the respondent probate judge appointed 224
poll managers, all white, and 509 poll clerks, 479 of whom were
white.
Ibid. Since 1964, the election of Bleckley County's
sole commissioner has been subject to a majority-vote requirement.
Although official segregation is no longer imposed, its vestiges
remain, as "more black than white residents of Bleckley County
continue to endure a depressed socio-economic status," id., at
1562, which "hinders the ability of and deters black residents of
Bleckley County from running for public office, voting and
otherwise participating in the political
955
With these limitations, successful vote-dilution challenges to
the size of a governing authority always will be based not on
abstract manipulation of numbers, but on a "searching practical
evaluation of the 'past and present reality.'" S. Rep. No. 97-417,
at 30, quoting
White v.
Regester, 412 U. S. 755, 770
(1973). These limitations protect against a proliferation of
vote-dilution challenges premised on eccentric or impracticable
alternative methods of redistricting.
III
The Voting Rights Act of 1965 was bold and ambitious
legislation, designed to eradicate the vestiges of past
discrimination and to make members of racial and language
minorities full participants in American political life. Nearly 30
years after the passage of this landmark civil rights legislation,
its goals remain unfulfilled. Today, the most blatant forms of
discrimination-including poll taxes, literacy tests, and "white"
primaries-have been eliminated. But subtler, more complex means of
infringing minority voting strength-including submergence or
dispersion of minority voters-are still present and indeed
prevalent. We have recognized over the years that seemingly
innocuous and even well-intentioned election practices may impede
minority voters' ability not only to vote, but to have their votes
count. It is clear that the practice of electing a single-member
county commission can be one such dilutive practice. It is equally
clear that a five-member commission is an appropriate benchmark
against which to measure the alleged dilutive effects of Bleckley
County's practice of electing a sole commissioner. I respectfully
dissent.
process," id., at 1563. The "barriers to active participation in
the political process are ... compounded by the fact that Bleckley
County now has only one voting precinct for the entire 219
square-mile area."
Id., at 1563, n. 3. That single polling
place is located at an all-white civic club.
955
F.2d 1563, 1566 (CAll 1992).
956
JUSTICE GINSBURG, dissenting.
I join the dissenting opinion by JUSTICE BLACKMUN and the
separate opinion of JUSTICE STEVENS, and add a further observation
about the responsibility Congress has given to the judiciary.
Section 2 of the Voting Rights Act of 1965 calls for an inquiry
into "[t]he extent to which members of a protected class have been
elected to office," but simultaneously disclaims any "right to have
members of a protected class elected in numbers equal to their
proportion in the population." 42 U. S. C. § 1973(b). "There is an
inherent tension between what Congress wished to do and what it
wished to avoid"-between Congress' "inten[t] to allow vote dilution
claims to be brought under § 2" and its intent to avoid "creat[ing]
a right to proportional representation for minority voters."
Thornburg v.
Gingles, 478 U. S. 30, 84 (1986)
(O'CONNOR, J., joined by Burger, C. J., and Powell and REHNQUIST,
JJ., concurring in judgment). Tension of this kind is hardly unique
to the Voting Rights Act, for when Congress acts on issues on which
its constituents are divided, sometimes bitterly, the give-and-take
of legislative compromise can yield statutory language that fails
to reconcile conflicting goals and purposes.
Title VII of the Civil Rights Act of 1964, for example, is
similarly janus faced, prohibiting discrimination against
historically disadvantaged groups, see 42 U. S. C. §§ 2000e-2(a),
(d), without "diminish[ing] traditional management prerogatives,"
Steelworkers v.
Weber, 443 U. S. 193, 207
(1979), in regard to employment decisions. See 42 U. S. C. §
2000e2(j) (no requirement that employer "grant preferential
treatment to any individual or to any group because of ... race,
color, religion, sex, or national origin"); see also
Johnson
v.
Transportation Agency, Santa Clara Cty., 480 U. S. 616, 649 (1987)
(O'CONNOR, J., concurring in judgment) (noting two "conflicting
concerns" built into Title VII: "Congress' intent
957
to root out invidious discrimination against any person on the
basis of race or gender, and its goal of eliminating the lasting
effects of discrimination against minorities") (emphasis in
original) (citation omitted).
When courts are confronted with congressionally crafted
compromises of this kind, it is "not an easy task" to remain
"faithful to the balance Congress struck."
Thornburg v.
Gingles, 478 U. S., at 84 (O'CONNOR, J., joined by Burger,
C. J., and Powell and REHNQUIST, JJ., concurring in judgment). The
statute's broad remedial purposes, as well as the constraints on
the courts' remedial powers, need to be carefully considered in
light of the particular circumstances of each case to arrive at an
appropriate resolution of the competing congressional concerns.
However difficult this task may prove to be, it is one that courts
must undertake because it is their mission to effectuate Congress'
multiple purposes as best they can. See
Chisom v.
Roemer, 501 U.
S. 380, 403 (1991) ("Even if serious problems lie ahead in
applying the 'totality of the circumstances' [inquiry under § 2(b)
of the Voting Rights Act], that task, difficult as it may prove to
be, cannot justify a judicially created limitation on the coverage
of the broadly worded statute[.]").
Separate opinion of JUSTICE STEVENS, in which JUSTICE BLACKMUN,
JUSTICE SOUTER, and JUSTICE GINSBURG join.
JUSTICE THOMAS has written a separate opinion proposing that the
terms "standard, practice, or procedure" as used in the Voting
Rights Act of 1965 should henceforth be construed to refer only to
practices that affect minority citizens' access to the ballot.
Specifically, JUSTICE THOMAS would no longer interpret the Act to
forbid practices that dilute minority voting strength. To the
extent that his opinion advances policy arguments in favor of that
interpretation of the statute, it should be addressed to Congress,
which has ample power to amend the statute. To the extent that the
opinion
958
Opinion of STEVENS, J.
suggests that federal judges have an obligation to subscribe to
the proposed narrow reading of statutory language, it is
appropriate to supplement JUSTICE THOMAS' writing with a few words
of history.
I
JUSTICE THOMAS notes that the first generation of Voting Rights
Act cases focused on access to the ballot.
Ante, at 894-895.
By doing so, he suggests that the early pattern of enforcement is
an indication of the original meaning of the statute. In this
regard, it is important to note that the Court's first case
addressing a voting practice other than access to the ballot arose
under the Fifteenth Amendment. In
Gomillion v.
Lightfoot, 364
U. S. 339 (1960), the Court held that a change in the
boundaries of the city of Tuskegee, Alabama, violated the Fifteenth
Amendment. In his opinion for the Court, Justice Frankfurter
wrote:
"The opposite conclusion, urged upon us by respondents, would
sanction the achievement by a State of any impairment of voting
rights whatever so long as it was cloaked in the garb of the
realignment of political subdivisions." Id., at 345.
"A statute which is alleged to have worked unconstitutional
deprivations of petitioners' rights is not immune to attack simply
because the mechanism employed by the legislature is a redefinition
of municipal boundaries. According to the allegations here made,
the Alabama Legislature has not merely redrawn the Tuskegee city
limits with incidental inconvenience to the petitioners; it is more
accurate to say that it has deprived the petitioners of the
municipal franchise and consequent rights and to that end it has
incidentally changed the city's boundaries. While in form this is
merely an act redefining metes and bounds, if the allegations are
established, the inescapable human effect of this essay in geometry
and geography is to despoil colored citizens,
959
and only colored citizens, of their theretofore enjoyed voting
rights." Id., at 347.1
Because
Gomillion was decided only a few years before the
Voting Rights Act of 1965 was passed, and because coverage under
the Voting Rights Act is generally coextensive with or broader than
coverage under the Fifteenth Amendment, see
Katzenbach v.
Morgan, 384 U.
S. 641 (1966);
Mobile v.
Bolden, 446 U. S. 55, 60-61 (1980)
(plurality opinion), it is surely not unreasonable to infer that
Congress intended the Act to reach the kind of voting practice that
was at issue in that case. Nevertheless, the text of the Act would
also have supported the opposite inference, because the language of
the Fifteenth Amendment would seem to forbid any denial or
abridgment of the right to vote, whereas §§ 2 and 5 of the Voting
Rights Act refer only to "voting qualification[s,] ...
prerequisite[s] to voting, ... standard [s], practice[s], [and]
procedure[s]."
During the years between 1965 and 1969 the question whether the
Voting Rights Act should be narrowly construed to cover nothing
more than impediments to access to the ballot was an unresolved
issue. What JUSTICE THOMAS describes as "a fundamental shift in the
focal point of the Act,"
ante, at 895, occurred in 1969 when
the Court unequivocally rejected the narrow reading, relying
heavily on a broad
1 In most of his opinion, JUSTICE THOMAS seems to use the phrase
"access to the ballot" to refer to the voter's ability to cast a
vote. In an attempt to characterize the
Gomillion
gerrymander as a practice that interfered with access to the
ballot, however, he seems to take the position that the redrawing
of the boundaries of a governmental unit is a practice that affects
access to the ballot because some voters' ballots could not
thereafter be cast for the same offices as before. See
ante,
at 920, n. 20. Under such reasoning the substitution of an
appointive office for an elective office, see
Bunton v.
Patterson, decided with
Allen v.
State Bd. of
Elections, 393 U.
S. 544, 550-551 (1969), or a change in district boundaries that
prevented voters from casting ballots for the reelection of their
incumbent congressional Representatives, would also be covered
practices.
960
Opinion of STEVENS, J.
definition of the term "voting" as including" 'all action
necessary to make a vote effective.'"
Allen v.
State Bd.
of Elections, 393
U. S. 544, 565-566.
Despite
Allen's purported deviation from the Act's true
meaning, Congress one year later reenacted § 5 without in any way
changing the operative words. During the next five years, the Court
consistently adhered to
Allen, see
Perkins v.
Matthews, 400
U. S. 379 (1971);
Georgia v.
United States,
411 U. S. 526
(1973), and in 1975, Congress again reenacted § 5 without
change.
When, in the late seventies, some parties advocated a narrow
reading of the Act, the Court pointed to these congressional
reenactments as solid evidence that
Allen, even if not
correctly decided in 1969, would now be clearly correct. In
United States v.
Sheffield Bd. of Comm'rs, 435 U. S. 110, 132133
(1978), the Court noted:
"In 1970, Congress was clearly fully aware of this Court's
interpretation of § 5 as reaching voter changes other than those
affecting the registration process and plainly contemplated that
the Act would continue to be so construed. See, e. g.,
Hearings on H. R. 4249 et al. before Subcommittee No.5 of the House
Committee on the Judiciary, 91st Cong., 1st Sess., 1, 4, 18,83,
130-131, 133,147-149,154-155,182-184,402-454(1969); Hearings on S.
818 et al. before the Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess.,
48, 195-196, 369-370, 397398, 426-427, 469 (1970) ....
"The congressional history is even clearer with respect to the
1975 extension .... " 2
2 See also
United Jewish Organizations of Williamsburgh,
Inc. v.
Carey, 430 U. S. 144, 157-159
(1977) (opinion of White, J.): "In
Allen v.
State Board
of Elections[, 393 U. S. 544 (1969),]
... we held that a change from district to at-large voting for
county supervisors had to be submitted for federal approval under §
5, because of the potential for a 'dilution' of minority voting
power which could 'nullify [its] ability to elect the candidate of
[its]
961
As the Court in that case also noted, when Congress reenacts a
statute with knowledge of its prior interpretation, that
interpretation is binding on the Court.
"Whatever one might think of the other arguments advanced, the
legislative background of the 1975 reenactment is conclusive of the
question before us. When a Congress that re-enacts a statute voices
its approval of an administrative or other interpretation thereof,
Congress is treated as having adopted that interpretation, and this
Court is bound thereby. See, e. g., Don E. Williams Co. v.
Commissioner, 429 U. S. 569,576-577
(1977); Albemarle Paper Co. v. Moody, 422 U. S. 405, 414 n. 8
(1975); H. Hart & A. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 1404 (tent. ed. 1958); cf.
Zenith Radio Corp. v. Hazeltine Research, 401 U. S. 321, 336 n. 7
(1971); Girouard v. United States, 328 U. S. 61, 69-70
(1946). Don E. Williams Co. v. Commissioner, supra,
is instructive. As here, there had been a longstanding
administrative interpretation of a statute when Congress re-enacted
it, and there, as here, the legislative history of the reenactment
showed that Congress agreed with that inter-
choice ... .' 393 U. S., at 569. When it renewed the Voting
Rights Act in 1970 and again in 1975, Congress was well aware of
the application of § 5 to redistricting. In its 1970 extension,
Congress relied on findings by the United States Commission on
Civil Rights that the newly gained voting strength of minorities
was in danger of being diluted by redistricting plans that divided
minority communities among predominantly white districts. In 1975,
Congress was unmistakably cognizant of this new phase in the effort
to eliminate voting discrimination. Former Attorney General
Katzenbach testified that § 5 'has had its broadest impact ... in
the areas of redistricting and reapportionment,' and the Senate and
House Reports recommending the extension of the Act referred
specifically to the Attorney General's role in screening
redistricting plans to protect the opportunities for nonwhites to
be elected to public office" (footnote omitted).
962
Opinion of STEVENS, J.
pretation, leading this Court to conclude that Congress had
ratified it. 429 U. S., at 574-577." Id., at 134-135.
If the 1970 and 1975 reenactments had left any doubt as to
congressional intent, that doubt would be set aside by the 1982
amendments to § 2. Between 1975 and 1982, the Court continued to
interpret the Voting Rights Act in the broad manner set out by
Allen. See
City of Rome v.
United States,
446 U. S. 156
(1980);
Dougherty County Bd. of Ed. v.
White,
439 U. S. 32
(1978);
United Jewish Organizations of Williamsburgh, Inc.
v.
Carey, 430
U. S. 144 (1977);
Richmond v.
United States,
422 U. S. 358
(1975). In
Mobile v.
Bolden, 446 U. S. 55 (1980), a
plurality of this Court concluded that violations of both the
Voting Rights Act and the Fifteenth Amendment required
discriminatory purpose. The case involved a claim that at-large
voting diluted minority voting strength. In his opinion for the
plurality in
Bolden, Justice Stewart expressly relied upon
Gomillion v.
Lightfoot's holding "that allegations of
a racially motivated gerrymander of municipal boundaries stated a
claim under the Fifteenth Amendment." 446 U. S., at 62; see also
id., at 85-86 (STEVENS, J., concurring in judgment). The only
reason
Gomillion did not control the outcome in
Bolden was that an "invidious purpose" had been alleged in
the earlier case but not in
Bolden. 446 U. S., at 63.3 The
congressional response to
Bolden is familiar history. In the
1982 amendment to § 2 of the Voting Rights Act, Congress
substituted a "results" test for an intent requirement. Pub. L.
97-205, § 3, 96 Stat. 134; see 42 U. S. C. § 1973. It is
crystal
3 The idea that the Court in
Bolden cast doubt on whether
the Voting Rights Act reached diluting practices is flatly refuted
by another decision handed down the very same day as the
Bolden decision. In
City of Rome v.
United
States, 446 U. S.
156, 186-187 (1980), the Court held that § 5 required
preclearance of annexations potentially diluting minority voting
strength. Even the dissenters did not suggest that vote dilution
claims were now questionable.
963
clear that Congress intended the 1982 amendment to cover
nonaccess claims like those in
Bolden and
Gomillion.4
II
JUSTICE THOMAS' narrow interpretation of the words "voting
qualification ... standard, practice, or procedure," if adopted,
would require us to overrule
Allen and the cases that have
adhered to its reading of the critical statutory language. The
radical character of that suggested interpretation is illustrated
by the following passage from an opinion decided only nine years
after
Allen:
"The Court's decisions over the past 10 years have given § 5 the
broad scope suggested by the language of the Act. We first
construed it in Allen v. State Board of Elections,
[393 U. S. 544
(1969)]. There our examination of the Act's objectives and original
legislative history led us to interpret § 5 to give it 'the
broadest possible scope,' 393 U. S., at 567, and to require prior
federal scrutiny of 'any state enactment which altered the election
law in a covered State in even a minor way.' Id., at 566. In
so construing § 5, we unanimously rejectedas the plain terms of the
Act would themselves have seemingly required-the argument of an
appellee that § 5 should apply only to enactments affecting who may
register to vote. 393 U. S., at 564. Our decisions have required
federal preclearance of laws changing the location of polling
places, see Perkins v. Matthews, 400 U. S.
4 We recently confirmed that interpretation of the 1982
amendment, stating: "Moreover, there is no question that the terms
'standard, practice, or procedure' are broad enough to encompass
the use of multimember districts to minimize a racial minority's
ability to influence the outcome of an election covered by § 2."
Chisom v.
Roemer, 501 U. S. 380, 390
(1991). Though disagreeing with the Court's holding that the
statute covered judicial elections, even the dissenters in that
case agreed that the amended § 2 "extends to vote dilution claims
for the elections of representatives .... "
Id., at 405.
964
Opinion of STEVENS, J.
379 (1971), laws adopting at-large systems of election,
ibid.; Fairley v. Patterson (decided with Allen,
supra); laws providing for the appointment of previously
elected officials, Bunton v. Patterson (decided with
Allen, supra); laws regulating candidacy, Whitley v.
Williams (decided with Allen, supra); laws changing
voting procedures, Allen, supra; annexations, City of
Richmond v. United States, 422 U. S. 358 (1975);
City of Petersburg v. United States, 410 U. S. 962
(1973), summarily aff'g 354 F. Supp. 1021 (DC 1972); Perkins
v. Matthews, supra; and reapportionment and redistricting,
Beer v. United States, 425 U. S. 130 (1976);
Georgia v. United States, 411 U. S. 526 (1973); see
United Jewish Organizations v. Carey, 430 U. S. 144 (1977). In
each case, federal scrutiny of the proposed change was required
because the change had the potential to deny or dilute the rights
conferred by § 4(a)." United States v. Sheffield Bd.
ofComm'rs, 435 U. S., at 122-123 (footnote omitted).
The
Allen interpretation of the Act has also been
followed in a host of cases decided in later years, among them
Houston Lawyers' Assn. v.
Attorney General of Tex.,
501 U. S. 419
(1991); Pleasant Grove v.
United States, 479 U. S. 462 (1987);
Thornburg v.
Gingles, 478 U. S. 30 (1986);
Port Arthur v.
United States, 459 U. S. 159 (1982);
City of Rome v.
United States, 446 U. S. 156 (1980);
Dougherty County Bd. of Ed. v.
White, 439 U. S. 32 (1978). In
addition, JUSTICE THOMAS' interpretation would call into question
the numerous other cases since 1978 that have assumed the broad
coverage of the Voting Rights Act that JUSTICE THOMAS would now
have us reject.
Chisom v.
Roemer, 501 U. S. 380 (1991);
Clark v.
Roemer, 500 U. S. 646 (1991);
McCain v.
Lybrand, 465 U. S. 236 (1984);
Hathorn v.
Lovorn, 457 U. S. 255 (1982);
Blanding v.
DuBose, 454 U. S. 393 (1982);
McDaniel v.
Sanchez, 452 U. S. 130 (1981);
Berry v.
Doles, 438 U. S. 190 (1978); see
also
Presley v.
Etowah County Comm'n, 502 U. S. 491 (1992);
Voinovich v.
Quilter, 507 U. S. 146 (1993);
Growe v.
Emison,
965
507 U. S. 25
(1993);
City of Lockhart v.
United States, 460 U. S.
125 (1983).
The large number of decisions that we would have to overrule or
reconsider, as well as the congressional reenactments discussed
above, suggests that JUSTICE THOMAS' radical reinterpretation of
the Voting Rights Act is barred by the well-established principle
that
stare decisis has special force in the statutory arena.
Ankenbrandt v.
Richards, 504 U. S. 689, 700
(1992);
Patterson v.
McLean Credit Union, 491 U. S. 164, 171-172
(1989);
Illinois Brick Co. v.
Illinois, 431 U. S. 720, 736-737
(1977).
JUSTICE THOMAS attempts to minimize the radical implications of
his interpretation of the phrase "voting qualification ...
standard, practice, or procedure" by noting that this case involves
only the interpretation of § 2 of the Voting Rights Act. Section 5,
he hints, might be interpreted differently. Even limiting the
reinterpretation to § 2 cases, however, would require overruling a
sizable number of this Court's precedents.
Houston Lawyers'
Assn. v.
Attorney General of Tex., 501 U. S. 419 (1991);
Chisom v.
Roemer, 501 U. S. 380 (1991);
Thornburg v.
Gingles, 478 U. S. 30 (1986); see
also
Voinovich v.
Quilter, 507 U. S. 146 (1993);
Growe v.
Emison, 507 U. S. 25 (1993). In
addition, a distinction between §§ 2 and 5 is difficult to square
with the language of the statute. Sections 2 and 5 contain exactly
the same words: "voting qualification ... standard, practice, or
procedure." If anything, the wording of § 5 is narrower, because it
adds the limiting phrase "with respect to voting" after the word
"procedure." Moreover, when Congress amended the Voting Rights Act
in 1982 in response to
Bolden, it amended § 2. As noted
above, in those amendments Congress clearly endorsed the
application of the Voting Rights Act to vote dilution claims. While
a distinction between §§ 2 and 5 might be supportable on policy
grounds, it is an odd distinction for devotees of "plain language"
interpretation.
966
Opinion of STEVENS, J.
Throughout his opinion, JUSTICE THOMAS argues that this case is
an exception to
stare decisis, because
Allen and its
progeny have "immersed the federal courts in a hopeless project of
weighing questions of political theory."
Ante, at 892. There
is no question that the Voting Rights Act has required the courts
to resolve difficult questions, but that is no reason to deviate
from an interpretation that Congress has thrice approved. Statutes
frequently require courts to make policy judgments. The Sherman
Act, for example, requires courts to delve deeply into the theory
of economic organization. Similarly, Title VII of the Civil Rights
Act has required the courts to formulate a theory of equal
opportunity. Our work would certainly be much easier if every case
could be resolved by consulting a dictionary, but when Congress has
legislated in general terms, judges may not invoke judicial modesty
to avoid difficult questions.
III
When a statute has been authoritatively, repeatedly, and
consistently construed for more than a quarter century, and when
Congress has reenacted and extended the statute several times with
full awareness of that construction, judges have an especially
clear obligation to obey settled law. Whether JUSTICE THOMAS is
correct that the Court's settled construction of the Voting Rights
Act has been "a disastrous misadventure,"
ante, at 893,
should not affect the decision in this case. It is therefore
inappropriate for me to comment on the portions of his opinion that
are best described as an argument that the statute be repealed or
amended in important respects.
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