OCTOBER TERM, 1998
Syllabus
LOPEZ ET AL.
v. MONTEREY COUNTY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA
No. 97-1396. Argued November 2, 1998-Decided January 20,1999
Section 5 of the Voting Rights Act of 1965 requires designated
States and political subdivisions to obtain federal
preclearance-either from the Attorney General or from the District
Court for the District of Columbia-before giving effect to changes
in their voting laws. Monterey County (County), a jurisdiction that
is "covered" by § 5, enacted a series of ordinances effecting
changes in the method for electing County judges. Appellants,
Hispanic voters residing in the County, filed suit, alleging that
the County had failed to fulfill its § 5 obligation to preclear
these changes. See
Lopez v.
Monterey County, 519 U. S. 9. The
three-judge District Court ultimately dismissed the complaint on
the ground that California, which is not covered by § 5, had also
passed legislation requiring the very voting changes challenged by
appellants. The County need not seek federal approval before giving
effect to these changes, the court reasoned, because California is
not subject to § 5 and the County was merely implementing a
California law without exercising any independent discretion.
Held: The Act's preclearance requirements apply to
measures mandated by a noncovered State to the extent that these
measures will effect a voting change in a covered county.
Accordingly, Monterey County is obligated to seek preclearance
under § 5 before giving effect to voting changes required by
California law. Pp. 277-287.
(a) Section 5's plain language requiring federal preclearance
"whenever a [covered jurisdiction] shall enact or seek to
administer any voting" change provides the most compelling support
for the conclusion that the preclearance requirement applies to a
covered county's nondiscretionary efforts to implement a voting
change required by state law, notwithstanding the fact that the
State is not itself a covered jurisdiction. The "seek[s] to
administer" phrase provides no indication that Congress intended to
limit preclearance obligations to covered jurisdictions'
discretionary actions. To the contrary, dictionaries consistently
define "administer" in purely nondiscretionary terms. The State's
view that "administer" is intended to capture a covered
jurisdiction's nonlegislative, executive initiatives poses no
barrier to the view that "administer" also encompasses
nondiscretionary acts by covered jurisdictions endeavoring to
comply with their States' superior law. Nor does
267
§ 5's use of "seek" require an act of discretion by the covered
jurisdiction. In this context, "seek" is more readily understood as
creating a temporal distinction; a covered jurisdiction need not
seek preclearance before
enacting legislation that would
effect a voting change but must seek preclearance before actually
administering such a change. The Court's reading is
supported by its prior assumption that preclearance is required
where a non covered State effects voting changes in covered
counties, see,
e. g., United Jewish Organizations of
Williamsburgh, Inc. v.
Carey, 430 U. S. 144, 148-149,
162, and by numerous preclearance submissions received by the
Justice Department and cases before the lower federal courts in
which interested parties have labored under such an assumption,
see,
e. g., Shaw v.
Reno, 509 U. S. 630, 634.
Finally, it is especially relevant that the Attorney General has
consistently construed § 5 as does this Court. Her interpretation
is entitled to substantial deference in light of her central role
in implementing § 5. Pp. 277-282.
(b) This interpretation does not unconstitutionally tread on
rights reserved to the States. Although recognizing that the Act
imposes substantial "federalism costs,"
Miller v.
Johnson, 515
U. S. 900, 926, this Court has likewise acknowledged that the
Reconstruction Amendments-which include the Fifteenth Amendment
under which the Act was passed-by their nature contemplate some
intrusion into areas traditionally reserved to the States.
Legislation that deters or remedies constitutional violations can
fall within the sweep of Congress' enforcement power even if it
prohibits conduct that is not itself unconstitutional and intrudes
into such areas.
City of Boerne v.
Flores, 521 U. S. 507, 518.
Moreover, the Court has specifically upheld the constitutionality
of § 5 against a challenge that this provision usurps powers
reserved to the States. See,
e. g., South Carolina v.
Katzenbach, 383 U. S. 301, 327-335.
Nor does
Katzenbach require a different result where, as
here, § 5 is held to cover acts initiated by noncovered States. The
Court there recognized that, once a jurisdiction has been
designated as covered, the Act may guard against both
discriminatory animus and the potentially harmful
effect of
neutral laws in that jurisdiction.
Id., at 333-334. This is
precisely what § 5's text requires when it provides that the
District Court for the District of Columbia may preclear a proposed
voting change only if the court concludes that the change "does not
have the purpose
and will not have the effect of denying ...
the right to vote" on account of an impermissible classification
(emphasis added). The Attorney General employs the same standard in
deciding whether to object to a proposed voting change. Thus, there
is no merit to California's claim that Congress lacks Fifteenth
Amendment authority to require federal approval before the
implementation of a state law that may have a discriminatory effect
in a covered county. Moreover,
268
even if California were correct that a partially covered State,
like itself, cannot seek a § 4(a) exemption from the Act's coverage
on behalf of its covered counties, this would not advance the
State's constitutional claim, since there is no question that the
County may avail itself of § 4(a)'s "bailout" provision. The State
also errs in asserting that certain of this Court's prior decisions
require a covered jurisdiction to exercise some discretion or
policy choice in order to trigger § 5's preclearance requirements.
Young v.
Fordice, 520 U. S. 273, 284, and
City of Monroe v.
United States, 522 U. S. 34,
distinguished. Nor can the State benefit here from the exception to
the preclearance requirement that this Court has recognized for
voting changes crafted by federal district courts.
Connor v.
Johnson, 402
U. S. 690, 691, and
McDaniel v.
Sanchez, 452 U.
S. 130, 153, distinguished. Pp. 282-287.
Reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
STEVENS, SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined.
KENNEDY, J., filed an opinion concurring in the judgment, in which
REHNQUIST, C. J., joined,
post, p. 288. THOMAS, J., filed a
dissenting opinion,
post, p. 289.
Joaquin G.
Avila argued the cause for appellants.
With him on the briefs were
Denise Hulett and
Robert
Rubin.
Paul R. Q. Wolfson argued the cause for the United States as
amicus curiae urging reversal. With him on the briefs were
Solicitor General Waxman, Acting Assistant Attorney General
Hodgkiss, Deputy Solicitor General Underwood, Mark L. Gross,
Rebecca K. Troth, and Louis E. Peraertz.
Daniel G.
Stone, Deputy Attorney General of
California, argued the cause for the state appellee. With him on
the brief were
Daniel E. Lungren, Attorney General,
Linda
A. Cabatic, Senior Assistant Attorney General, and
Marsha A.
Bedwell, Supervising Deputy Attorney General.
Douglas C.
Holland filed a brief for appellee Monterey County.*
JUSTICE O'CONNOR delivered the opinion of the Court. Under the
Voting Rights Act of 1965 (Act or Voting Rights Act), 79 Stat. 437,
as amended, 42 U. S. C. § 1973
et seq., des-
*
Deborah J.
La Fetra filed a brief for the
Pacific Legal Foundation as
amicus curiae urging
affirmance.
269
ignated States and political subdivisions are required to obtain
federal preclearance before giving effect to changes in their
voting laws. See § 1973c. Here, the State of California (California
or State), which is not subject to the Act's preclearance
requirements, has passed legislation altering the scheme for
electing judges in Monterey County, California (Monterey County or
County), a "covered" jurisdiction required to preclear its voting
changes. In this appeal, we review the conclusion of a three-judge
District Court that Monterey County need not seek approval of these
changes before giving them effect. The District Court reasoned,
specifically, that California is not subject to the preclearance
requirement and that Monterey County merely implemented a
California law without exercising any independent discretion. We
hold that the Act's preclearance requirements apply to measures
mandated by a noncovered State to the extent that these measures
will effect a voting change in a covered county. Accordingly, we
reverse the decision of the District Court.
I
The instant appeal marks the second occasion on which this Court
has addressed issues arising in the course of litigation over the
method for electing judges in Monterey County, and we assume
familiarity with our previous decision in this case. See
Lopez v.
Monterey County, 519 U. S. 9 (1996).
A
Congress enacted the Voting Rights Act under its authority to
enforce the Fifteenth Amendment's proscription against voting
discrimination. The Act contains generally applicable voting rights
protections, but it also places special restrictions on voting
activity within designated, or "covered," jurisdictions.
Jurisdictions-States or political subdivisions-are selected for
coverage if they meet specified criteria suggesting the presence of
voting discrimination in
270
the jurisdiction. The criteria pertinent to this case were
established by a 1970 amendment to the Act that extended coverage
to any jurisdiction that "(i) the Attorney General determines
maintained on November 1, 1968, any test or device [as a
prerequisite to voting], and with respect to which (ii) the
Director of the Census determines that less than 50 per centum of
the persons of voting age residing therein were registered on
November 1, 1968, or that less than 50 per centum of such persons
voted in the presidential election of November 1968." 84 Stat. 315,
42 U. S. C. § 1973b(b).
The Act subjects covered jurisdictions to special restrictions
on their voting laws. Section 4(a) suspends use of a "test or
device" in any jurisdiction designated for coverage. § 1973b(a)(1).
In addition, § 5 of the Act provides that covered jurisdictions
must obtain federal approval for any measure that departs from the
voting scheme in place in the jurisdiction on a specified date. The
portion of § 5 applicable in this case provides, specifically, that
federal preclearance is required "whenever 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
in force or effect on November 1, 1968." § 1973c.
A covered jurisdiction has two avenues available to seek the
federal preclearance required under § 5. The jurisdiction may
submit the proposed voting change to the Attorney General. If the
Attorney General affirmatively approves the change or fails to
object to it within 60 days, the change is deemed precleared and
the jurisdiction may put it into effect.
Ibid.
Alternatively, either in the first instance or following an
objection from the Attorney General, a covered jurisdiction may
seek preclearance for a voting change by filing a declaratory
judgment action in the United States District Court for the
District of Columbia.
Ibid. The change is precleared if the
court declares that the proposed
271
"qualification, prerequisite, standard, practice, or procedure
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, or in
contravention of the guarantees set forth in section 1973b(f)(2) of
this title [proscribing voting restrictions based on membership in
a language minority group]." § 1973c.
In 1971, Monterey County was designated a covered jurisdiction
based on findings that, as of November 1, 1968, the County
maintained California's statewide literacy test as a prerequisite
to voting and less than 50 percent of the County's voting age
population participated in the November 1968 Presidential election.
35 Fed. Reg. 12354 (1970); 36 Fed. Reg. 5809 (1971); see also 42 U.
S. C. § 1973b(b). Accordingly, the County must obtain federal
preclearance for any departure from the voting scheme in place on
November 1, 1968.
In fact, over the last 30 years, there have been numerous
changes in the structure of the County's trial court system and the
scheme for electing judges. On November 1, 1968, Monterey County
had nine judicial districts: two municipal court and seven justice
court districts. As we observed in our earlier opinion, see
Lopez v.
Monterey County, supra, at 12, municipal
court districts encompassed larger populations than their justice
court counterparts, and the former districts had two judges whereas
the latter had one. Moreover, justice courts were not courts of
record, and their judges frequently worked part time. Each of the
nine districts in place in 1968 was wholly independent, and its
judges were elected at large by voters in the district in which
they served.
Since 1972, however, the County's judicial system has undergone
substantial change resulting in what is today a single, countywide
municipal court served by 10 judges. Four County ordinances adopted
between 1972 and 1976 reduced the number of justice court districts
in the County
272
from seven to three. * Subsequently, a 1977 state law
transformed a justice court district into a municipal court
district, raising the total number of municipal districts to three.
1977 Cal. Stats., ch. 995.
The next noteworthy change in the County's judicial election
scheme occurred in 1979, with the consolidation of the County's
three municipal court districts. On June 5, 1979, the County passed
Ordinance No. 2524, which provided that the Monterey Peninsula
Judicial District, North Monterey County Judicial District, and the
Salinas Judicial District would be combined to form the Monterey
County Municipal Court District. App. to Juris. Statement 75. The
same year, the State enacted a law, apparently at the County's
request, requiring the same merger of the municipal court districts
and mapping out some of the mechanics of the new, consolidated
district. 1979 Cal. Stats., ch. 694; see also § 4 (noting that
"this act is in accordance with the request of a local governmental
entity or entities which desired legislative authority to carry out
the program specified in this act"). The state Act provides, in
pertinent part, that "[t]here is in the County of Monterey, on and
after the effective date of this section, a single municipal court
district which embraces the former Salinas Judicial District,
Monterey Peninsula Judicial District and North Monterey County
Judicial District." § 2. The 1979 changes thus left the County with
one municipal court district and two justice court districts.
The final step toward a single, countywide district occurred in
1983. County Ordinance No. 2930, passed by Monterey County's Board
of Supervisors on August 2, 1983,
*County Ordinance No. 1917, adopted on October 3, 1972,
consolidated two justice court districts. App. to Juris. Statement
56-57. On November 13, 1973, County Ordinance No. 1999 consolidated
another two justice court districts.
Id., at 58-59. County
Ordinance No. 2139, adopted on January 13, 1976, merged three
justice court districts with other judicial districts.
Id.,
at 62-64. Finally, County Ordinance No. 2212, adopted on September
7, 1976, added a new justice court district.
Id., at
68-70.
273
merged the remaining two justice court districts into the
municipal court district formed by the 1979 consolidation. App. to
Juris. Statement 77-80. The merger became effective on January 1,
1984, and the resulting district was countywide. The State, again
apparently at the County's request, enacted legislation in
September 1983, increasing the number of judges in the County's
municipal court district from seven to nine contingent upon the
merger of the justice court districts already provided for by the
County ordinance. 1983 Cal. Stats., ch. 1249, §§ 3, 16. The State
subsequently recognized that the merger had taken effect and
provided for the additional judgeships. 1985 Cal. Stats., ch. 659,
§ 1. Moreover, pursuant to state authorization, the County
ultimately increased the number of sitting judges from 9 to the
current 10. 1987 Cal. Stats., ch. 1211, § 30; App. to Juris.
Statement 81-82. Judicial elections took place under an at-large,
countywide plan in 1986, 1988, and 1990.
The County, although covered by § 5 of the Act, failed to seek
federal preclearance for any of its six consolidation ordinances.
Nor did the State preclear its 1979 law that, like the County
ordinance adopted the same year, directed the consolidation of the
three municipal court districts. The State did seek the Attorney
General's approval, however, for the 1983 state law authorizing
additional judgeships upon the final merger of the justice courts
into a single, countywide municipal court district. In the process,
the State provided the Department of Justice with a copy of the
County's 1983 consolidation ordinance. The Attorney General did not
oppose the State's 1983 submission, and we have thus observed that
this "submission may well have served to preclear the 1983 county
ordinance."
Lopez v.
Monterey County, 519 U. S., at
15. We noted, however, that preclearance of the County's 1983
ordinance probably failed to satisfy the need to preclear the
preceding consolidation ordinances, ibid. ("Thus, under our
precedent, these previous consolidation ordinances do not appear to
have received federal preclear-
274
ance approval"), and the State does not challenge this
conclusion here, see Brief for Appellee State of California 13,
n.l0.
B
Appellants, Hispanic voters who reside in Monterey County, filed
suit in the United States District Court for the Northern District
of California on September 6, 1991, claiming that the County had
failed to fulfill its § 5 obligation to preclear any of the
consolidation ordinances passed between 1972 and 1983. A
three-judge District Court concluded that the ordinances were
voting changes requiring preclearance under § 5 and that the
ordinances were unenforceable until they were precleared.
Accordingly, the County initiated proceedings before the United
States District Court for the District of Columbia in an effort to
preclear the ordinances. Ultimately, however, the County agreed to
dismiss the suit without prejudice and to stipulate that its
"'Board of Supervisors is unable to establish that the
[consolidation ordinances] adopted by the County between 1968 and
1983 did not have the effect of denying the right to vote to
Latinos in Monterey County due to the retrogressive effect several
of these ordinances had on Latino voting strength in Monterey
County.'"
Lopez v.
Monterey County, 871 F. Supp.
1254, 1256 (ND Cal. 1995) (quoting Monterey County Resolution
94-107 (Mar. 15, 1994)).
Back before the three-judge District Court in the Northern
District of California, appellants and the County, working
together, submitted alternatives to the districtwide voting scheme.
Meanwhile, the State was allowed to intervene in the proceedings,
and it opposed the proposed plans on the ground that they violated
aspects of the California Constitution governing judicial
elections. By late 1994, after unsuccessful attempts by the County
to secure an amendment to the California Constitution, appellants
and the County remained unable to formulate a judicial election
275
plan that they felt would comport with the requirements of the
Voting Rights Act and that did not violate some aspect of state
law. Under these circumstances, the District Court opted to put a
voting scheme in place for purposes of a single election. See 871
F. Supp., at 1255-1256. The temporary plan, under which judges were
elected from districts but served countywide, violated California
constitutional provisions requiring that jurisdiction be
coextensive with a judge's electoral base and prohibiting the
division of cities among two or more municipal courts. See Cal.
Const., Art. VI, § 16(b); Art. VI, § 5(a). The District Court
concluded, however, that the single election would interfere only
minimally with state interests. See 871 F. Supp., at 1259-1260.
The Attorney General precleared the court's interim plan in
March 1995, and judges were selected in a 1995 special election to
serve until January 1997. Following the election, however, this
Court decided
Miller v.
Johnson, 515 U. S. 900 (1995),
which, in the District Court's view, cast doubt on the legality of
the interim plan. Having determined that other options were not
feasible, the court thus ordered a new judicial election to be held
in March 1996 under a countywide voting scheme, the very scheme
that the County had effected through its consolidation ordinances
and that appellants had challenged in their original complaint.
This Court granted appellants' emergency stay application and
enjoined the proposed, countywide election. 516 U. S. 1104 (1996).
We subsequently noted probable jurisdiction over the appeal, 517 U.
S. 1118 (1996), and we reversed,
Lopez v.
Monterey
County, 519 U. S.
9 (1996). The District Court had erred, we concluded, in
directing an election to take place under a scheme that had not
been precleared as required under § 5. Accordingly, we remanded the
matter to the District Court and directed that "[t]he requirement
of federal scrutiny should be satisfied without further delay."
I d., at 25. In so doing, we expressly declined to pass
on
276
the merits of a claim raised by the State that the current,
countywide election scheme is not subject to § 5 preclearance
because the scheme is now required by a combination of precleared
law and
California law.
Id., at 19-20. State law,
under this view, does not require preclearance because it is not
the product of a covered jurisdiction.
On remand, the State moved to dismiss appellants' complaint on
this theory, among others, and the District Court agreed that
preclearance was unnecessary because the countywide scheme was now
mandated by California law. No. C-91-20559-RMW (ND Cal., Dec. 19,
1997), App. to Juris. Statement 1, 4-9. Among the other grounds for
dismissal raised in its motion, the State also alleged that
appellants' claims are barred by laches, that it was constitutional
error to designate the County as a covered jurisdiction under § 5,
and that the consolidation ordinances did not alter a voting
"standard, practice, or procedure" subject to preclearance under §
5. The District Court did not address these alternative bases to
dismiss appellants' complaint, however, and we do not reach them
here. The State also moved to vacate a September 25, 1996, order
extending the terms of the judges elected under the 1995 interim
plan. The District Court granted this request along with the
State's motion to dismiss.
In granting the motion to dismiss, the District Court reasoned
that § 5, by its own terms, creates a preclearance obligation only
for covered jurisdictions. Noncovered entities, like the State,
bear no responsibility to preclear voting changes that they "enact
or seek to administer." See id., at 5. "[T]he purpose of § 5
appears to be to target only those enactments by jurisdictions
suspected of abridging the right to vote and not those put in force
by a non-covered, superior jurisdiction."
Ibid.
Here, the District Court concluded, the 1979 state law had
consolidated the three existing municipal courts and mandated that
there be one municipal court district in the
277
County. This Act, in the court's view, did not require
preclearance because it was the product of the State, a noncovered
jurisdiction. The only additional change-effected by the County's
1983 ordinance merging the remaining justice court districts with
the municipal court district-had been precleared. Moreover, the
court reasoned, even if the 1983 ordinance had not received
preclearance, an amendment to the California Constitution effective
January 1, 1995, eliminated justice courts, and thus the remaining
two justice court districts would have merged with the municipal
court district as a matter of course. See Cal. Const., Art. VI, §
5(b). The justice court districts would have been unable to become
municipal court districts themselves, the District Court reasoned,
in light of a state constitutional provision requiring a minimum of
40,000 residents in a municipal court district. App. to Juris.
Statement 8; see Cal. Const., Art. VI, § 5(a). In reaching its
conclusion, the court expressly rejected appellants' claim that
even voting changes effected by California law require preclearance
before the County may "seek to administer" them. Relying on our
decision in
Young v.
Fordice, 520 U. S. 273 (1997), the
District Court concluded that a jurisdiction "'seek[s] to
administer'" a voting change, as that language is used in § 5, only
where the jurisdiction exercises some element of discretion or
policy choice in the matter. App. to Juris. Statement 8-9. Here,
the court found, the County had no choice but to implement the
countywide voting scheme.
We noted probable jurisdiction over the appeal from the order
dismissing appellants' complaint, 523 U. S. 1093 (1998), and we
reverse.
II A
Appellants and the County together contend that the County must
obtain preclearance for changes leading to the countywide voting
scheme before giving effect to this
278
scheme. The State urges, in response, that § 5 expressly limits
its preclearance requirements to covered jurisdictions. "Partially
covered" jurisdictions like California, the State insists, are
under no obligation to comply with § 5. Appellants do not argue,
however, that the State is obligated to seek preclearance for
voting changes that it effects. Rather, appellants claim that the
County, which is unquestionably subject to § 5, must pursue
preclearance for state-sponsored voting changes that it "seek[s] to
administer." That the nonprecleared aspects of the countywide
voting plan may now be required by state law, in appellants' view,
is irrelevant to the § 5 analysis because it is the County that
"seek[s] to administer" the scheme. Accordingly, the question
before this Court is whether a covered jurisdiction "seek[s] to
administer" a voting change when, without exercising any
independent discretion, the jurisdiction implements a change
required by the superior law of a noncovered State. Because we
agree with appellants that a covered jurisdiction "seek[s] to
administer" a voting change even where the jurisdiction exercises
no discretion in giving effect to a statemandated change, we
conclude that the County is required to seek preclearance before
implementing California laws that effect voting changes in the
County.
The face of the Act itself provides the most compelling support
for appellants' claim. The phrase "seek to administer" provides no
indication that Congress intended to limit § 5's preclearance
obligations to the discretionary actions of covered jurisdictions.
To the contrary, "administer" is consistently defined in purely
nondiscretionary terms. See,
e. g., Webster's Third New
International Dictionary 27 (1961) ("to manage the affairs of," "to
direct or superintend the execution, use, or conduct of"); Random
House Dictionary of the English Language 26 (2d ed. 1987) ("to
manage (affairs, a government, etc.); have executive charge of");
Black's Law Dictionary 44 (6th ed. 1990) ("To manage or conduct").
The State's view that "administer" is intended to capture a
cov-
279
ered jurisdiction's nonlegislative, executive initiatives is not
to the contrary. Such a reading poses no barrier to the view that
"administer" also encompasses nondiscretionary acts by covered
jurisdictions endeavoring to comply with the superior law of the
State.
Nor are we persuaded that Congress' use of the word "seek" is
intended to require an act of discretion by the covered
jurisdiction in order to trigger the preclearance requirement. The
word "seek" in this context is more readily understood as creating
a temporal distinction. The Government has indicated that a covered
jurisdiction need not seek preclearance before
enacting
legislation that would effect a voting change. See 28 CFR §
51.22(a) (1997) (listing "[a]ny proposal for a change affecting
voting submitted prior to final enactment" among "premature
submissions" that Attorney General will not consider); see also Tr.
of Oral Arg. 20. Preclearance is required before actually
administering a change, however, and use of the word "seek"
in § 5 makes this distinction clear.
We note, too, that this Court has elsewhere assumed that
legislation from a partially covered State must be precleared to
the extent that it affects covered counties. In
United Jewish
Organizations of Williamsburgh, Inc. v.
Carey, 430 U. S.
144 (1977), we rejected a constitutional challenge brought by
Hasidic residents of Kings County, New York, to a redistricting
plan enacted by the state legislature. We assumed in that case that
the state plan was subject to the Act's preclearance requirements,
even though the State was not a covered jurisdiction, because Kings
and other counties were themselves covered by the Act. We observed
that, after the State's efforts to exempt its counties from the
Act's coverage proved unsuccessful, see
New York ex rel. New
York County v.
United States, 419 U. S. 888 (1974), "it
became necessary for New York [State] to secure the approval of the
Attorney General or of the United States District Court for the
District of Columbia for its 1972 reapportion-
280
ment statute insofar as that statute concerned [the covered]
Counties," 430 U. S., at 148-149. Moreover, the decision's
constitutional analysis relies on the fact that the redistricting
effort was meant to fulfill the State's obligations under the Act.
Id., at 162 ("[P]etitioners have not shown, or offered to
prove, that New York did more than the Attorney General was
authorized to require it to do ... "); see also
Shaw v.
Hunt, 517 U.
S. 899, 911-913 (1996) (evaluating whether partially covered
State's § 5 obligations justified race-based districting without
any consideration that State may not have been subject to
preclearance requirement). These decisions reveal a clear
assumption by this Court that § 5 preclearance is required where a
noncovered State effects voting changes in covered counties.
Nor have we been alone in this assumption. The Department of
Justice claims to have received more than 1,300 submissions seeking
to preclear state laws from the seven States that are currently
partially covered: California, Florida, Michigan, New Hampshire,
New York, North Carolina, and South Dakota. Brief for United States
as
Amicus Curiae in Support of Juris. Statement 13, n. 3;
see also 28 CFR pt. 51, App. (1997) (identifying partially covered
States); see generally
Perkins v.
Matthews, 400 U. S. 379, 392 (1971)
(noting that a particular interpretation of § 5 "was accepted by at
least some affected States and political subdivisions, which had
submitted such changes for the Attorney General's approval"). In
fact, cases before this and other federal courts reveal numerous
instances in which interested parties have labored under the
assumption that laws enacted by partially covered States require
preclearance before they take effect in covered jurisdictions. See,
e. g.,
Shaw v.
Reno, 509 U. S. 630, 634 (1993)
("Because the [North Carolina] General Assembly's reapportionment
plan affected the covered counties, the parties agree that § 5
applied");
Johnson v.
De Grandy, 512 U. S. 997, 1001, n. 2
(1994) (Florida submitted statewide redistricting law for
preclearance because five
281
counties are covered);
Haith v.
Martin, 618 F.
Supp. 410 (EDNC 1985) (suit over need to preclear North Carolina
laws affecting covered jurisdictions without any claim by State
that, as a noncovered jurisdiction, its laws are not subject to §
5), summarily aff'd, 477 U. S. 901 (1986);
United States v.
Onslow County, 683 F. Supp. 1021, 1024 (EDNC 1988) (covered
North Carolina county submitted changes for preclearance, including
change required by state statute, and court concluded that change
required § 5 preclearance). While this Court is not bound by its
prior assumptions, see,
e. g., Brecht v.
Abrahamson,
507 U. S. 619,
630-631 (1993), the fact that courts and parties alike have
routinely assumed a need for preclearance under the circumstances
presented here supports our reading of § 5.
Finally, we find it especially relevant that the Attorney
General also reads § 5 as we do. According to the Government: "The
Attorney General has consistently construed Section 5 to require
preclearance when a covered political subdivision 'seek[s] to
administer' an enactment of a partially covered State." Brief for
United States as
Amicus Curiae 19; see also S. Rep. No.
97-417, pp. 11-12 (1982) (describing Attorney General's objections
to laws enacted by North Carolina and South Dakota, both partially
covered States). Subject to certain limitations not implicated
here, see,
e. g.,
Presley v.
Etowah County
Comm'n, 502 U. S.
491, 508-509 (1992), we traditionally afford substantial
deference to the Attorney General's interpretation of § 5 in light
of her "central role ... in formulating and implementing" that
section.
Dougherty County Bd. of Ed. v.
White,
439 U. S. 32, 39
(1978); see,
e. g., NAACP v.
Hampton County Election
Comm'n, 470 U. S.
166, 178-179 (1985) ("Any doubt that these changes are covered
by § 5 is resolved by the construction placed upon the Act by the
Attorney General, which is entitled to considerable deference");
Perkins v.
Matthews, supra, at 390-391 ("Our
conclusion that both the location of the polling places and
municipal boundary changes come
282
within § 5 draws further support from the interpretation
followed by the Attorney General in his administration of the
statute"). The Attorney General's interpretation thus provides
significant additional support for our reading of § 5.
In light of the section's plain language and the Attorney
General's interpretation to the same effect, we conclude that § 5's
preclearance requirement applies to a covered county's
nondiscretionary efforts to implement a voting change required by
state law, notwithstanding the fact that the State is not itself a
covered jurisdiction. Accordingly, we need not reach appellants'
alternative claim that the countywide district is in fact the
product of the County's discretion.
B
The State also urges that requiring preclearance here would
tread on rights constitutionally reserved to the States. The State
contends, specifically, that § 5 could not withstand constitutional
scrutiny if it were interpreted to apply to voting measures enacted
by States that have not been designated as historical wrongdoers in
the voting rights sphere. In the State's view, because California
has not been designated as a covered jurisdiction, its laws are not
subject to § 5 preclearance.
We have recognized that the Act, which authorizes federal
intrusion into sensitive areas of state and local policymaking,
imposes substantial "federalism costs."
Miller v.
Johnson, 515 U. S., at 926. The Act was passed pursuant to
Congress' authority under the Fifteenth Amendment, however, and we
have likewise acknowledged that the Reconstruction Amendments by
their nature contemplate some intrusion into areas traditionally
reserved to the States.
City of Rome v.
United
States, 446 U. S.
156, 179 (1980). As the Court recently observed with respect to
Congress' power to legislate under the Fourteenth Amendment,
"[l]egislation which deters or remedies constitutional violations
can fall within the sweep of Congress' enforcement power even if
in
283
the process it prohibits conduct which is not itself
unconstitutional and intrudes into legislative spheres of autonomy
previously reserved to the States."
City of Boerne v.
Flores, 521 U.
S. 507, 518 (1997) (internal quotation marks and citation
omitted).
Moreover, we have specifically upheld the constitutionality of §
5 of the Act against a challenge that this provision usurps powers
reserved to the States. See
South Carolina v.
Katzenbach, 383 U. S. 301, 334-335
(1966); see also
City of Rome v.
United States,
supra, at 178-183. Nor does
Katzenbach require a
different result where, as here, § 5 is held to cover acts
initiated by noncovered States. The Court in
Katzenbach
recognized that, once a jurisdiction has been designated, the Act
may guard against both discriminatory animus and the potentially
harmful
effect of neutral laws in that jurisdiction. 383 U.
S., at 333-334. In
City of Rome, we thus expressly
reaffirmed that, "under the Fifteenth Amendment, Congress may
prohibit voting practices that have only a discriminatory effect."
446 U. S., at 175; see also id., at 178-180 (upholding preclearance
requirement against federalism challenge).
This is, moreover, precisely what the text of § 5 requires.
The United States District Court for the District of Columbia
may preclear a proposed voting change only if the court concludes
that the change "does not have the purpose
and will not have the
effect of denying or abridging the right to vote" on the basis
of an impermissible classification. 42 U. S. C. § 1973c (emphasis
added). The Attorney General employs the same standard in deciding
whether to object to a proposed voting change. See 28 CFR §
51.52(a) (1997).
Recognizing that Congress has the constitutional authority to
designate covered jurisdictions and to guard against changes that
give rise to a discriminatory effect in those jurisdictions, we
find no merit in the claim that Congress lacks Fifteenth Amendment
authority to require federal approval before the implementation of
a state law that may
284
have just such an effect in a covered county. Section 5, as we
interpret it today, burdens state law only to the extent that that
law affects voting in jurisdictions properly designated for
coverage. With respect to literacy tests, in fact, the Act already
allows for the very action that the State claims would be
unconstitutional here. At least until a 1970 amendment to the Act
barring literacy tests nationwide, see 42 U. S. C. § 1973aa, § 4
had been used to ban these tests in covered jurisdictions even
where the tests had been enacted by a noncovered State. See
Gaston County v.
United States, 395 U. S. 285, 287 (1969)
(although State was not covered, "[u]se of the State's literacy
test within the county was ... suspended" when the county was
designated a covered jurisdiction). Moreover, under § 4(b), a
stateimposed literacy test may, as it did here, provide grounds for
designating a county as a covered jurisdiction, notwithstanding the
fact that the State as a whole is not covered.
The State seeks to bolster its constitutional argument by noting
that partially covered States, like California, have no statutory
ability to seek an exemption from the Act's coverage. Section 4(a)
permits a covered jurisdiction to seek declaratory relief exempting
the jurisdiction from further coverage if it meets certain
criteria. 42 U. S. C. § 1973b(a). Even if California were unable to
use this "bailout" provision on behalf of its covered counties, but
see
United Jewish Organizations of Williamsburgh, Inc. v.
Carey, 430 U. S., at 148-149, n. 3 (noting that New York
State sought exemptions on behalf of covered counties), this would
not advance the State's constitutional claim. Partially covered
States facing suspension of their literacy tests in covered
counties would have faced the same dilemma. In any event, there is
no question that the County may avail itself of § 4(a)'s bailout
procedures.
In short, the Voting Rights Act, by its nature, intrudes on
state sovereignty. The Fifteenth Amendment permits this
285
intrusion, however, and our holding today adds nothing of
constitutional moment to the burdens that the Act imposes.
The State also urges that certain of our prior decisions require
a covered jurisdiction to exercise some discretion or policy choice
in order to trigger § 5's preclearance requirements. In particular,
the State relies on
Young v.
Fordice, 520 U. S. 273 (1997), and
City of Monroe v.
United States, 522 U. S. 34 (1997)
(per curiam). The State, however, seeks to place more weight
on these cases than they will bear. The State relies foremost upon
Young, which involved a § 5 challenge to a covered State's
efforts to comply with voting changes mandated by the National
Voters' Registration Act. We concluded that changes brought about
by efforts at compliance were themselves the result of
discretionary decisions by the State, and these changes required §
5 preclearance: "This Court has made clear that minor, as well as
major, changes require preclearance. This is true even where, as
here, the changes are made in an effort to comply with federal law,
so long as those changes reflect policy choices made by state or
local officials." 520 U. S., at 284 (citations omitted). Like the
District Court, the State seeks to invoke
Young for the
proposition that only the "policy choices" of
covered
jurisdictions are subject to the preclearance requirements.
Young, however, involved an effort to comply with an Act of
Congress, the very body that enacted the Voting Rights Act.
Congress retains the authority to curtail the Act's protections
with subsequent legislation; alternatively, Congress may be assumed
to have accounted for the policies underlying the Act in rendering
new law. Accordingly, the requirement that only "policy choices ...
by state and local officials" would trigger the § 5 requirements in
Young served merely to isolate for preclearance those
changes that are not wholly creatures of
Congress.
The State also seeks to rely on
City of Monroe, in which
we held that preclearance of a voting change included in a
statewide law empowered a municipality to implement that
286
change, notwithstanding the city's failure to preclear a change
in its charter to the same effect. It is true that, in
City of
Monroe, the municipality was permitted to give effect to the
statewide law without any need to preclear its effect at the city
level. A second preclearance would have been wholly unnecessary,
however. The Attorney General had already approved the change. 522
U. S., at 37 ("Since the Attorney General precleared [the statewide
law], Monroe may implement it"). Accordingly,
City of Monroe
does not stand for the proposition that covered jurisdictions are
generally permitted to engage in the discretionless implementation
of state laws without seeking preclearance. The very change that
the city of Monroe wished to enforce had already been
precleared.
Finally, we note that this Court has created an exception to the
preclearance requirement in certain cases involving federally
court-ordered voting changes. As a general rule, voting changes
crafted wholly by a federal district court in the first instance do
not require preclearance. See
Connor v.
Johnson,
402 U. S. 690,
691 (1971)
(per curiam). Thus, in
Connor, the Court
rejected a claim that § 5 required preclearance of an electoral
apportionment scheme developed and ordered by a Federal District
Court in the course of litigation over the constitutionality of a
Mississippi voting plan.
Ibid. This narrow exception to the
preclearance requirement, however, is not grounded in the fact that
a voting change is mandated by a noncovered entity, without room
for discretion on the part of a covered jurisdiction. Rather, the
exception grows largely from separation-of-powers concerns arising
where a voting measure is the product of a federal court,
specifically. As Justice Black noted in his dissent in
Connor:
"Needless to say I completely agree with the holding of the
majority that a reapportionment plan formulated and ordered by a
federal district court need
287
not be approved by the United States Attorney General or the
United States District Court for the District of Columbia. Under
our constitutional system it would be strange indeed to construe §
5 ... to require that actions of a federal court be stayed and
reviewed by the Attorney General or the United States District
Court for the District of Columbia." Id., at 695.
We have since recognized limitations on the
Connor
exception. In
McDaniel v.
Sanchez, 452 U. S. 130 (1981), the
District Court had sustained a constitutional challenge to a county
apportionment scheme and had ordered the implementation of a new
plan that the county had submitted to the court. In holding that
the new plan should have been precleared before the District Court
took any action on it, we noted that § 5 "requires that whenever a
covered jurisdiction submits [to a district court] a proposal
reflecting the policy choices of the elected representatives of the
people ... the preclearance requirement of the Voting Rights Act is
applicable."
Id., at 153. Nor does this requirement that
there be some "policy choic[e]" by the local jurisdiction represent
a general rule that a covered jurisdiction must exercise discretion
to trigger the § 5 preclearance obligations.
McDaniel may
best be read merely as an effort to isolate and protect wholly
court-developed plans from preclearance. In any event,
McDaniel applies only to voting changes embodied in
federal-court orders, and we need not further define the scope of
its exception to the
Connor rule here.
We hold that the County is obligated to seek preclearance under
§ 5 before giving effect to voting changes required by state law.
Accordingly, the judgment of the United States District Court for
the Northern District of California is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
288
KENNEDY, J., concurring in judgment
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, concurring
in the judgment.
I would not decide in this case whether "§ 5's preclearance
requirement applies to a covered county's nondiscretionary efforts
to implement a voting change required by state law, notwithstanding
the fact that the State is not itself a covered jurisdiction."
Ante, at 282. I think it quite possible, particularly in
light of the constitutional concerns identified by JUSTICE THOMAS,
that the phrase "seek to administer" in the statute requires that
the covered jurisdiction exercise discretion or pursue its own
policy aims before the obligation to preclear a voting change
arises. See 14 Oxford English Dictionary 877 (2d ed. 1989)
(defining "seek,"
inter alia, as "[t]o make it one's aim, to
try or attempt
to (do something)"). That interpretation
draws some support from our decisions in
Connor v.
Johnson, 402
U. S. 690 (1971)
(per curiam), and
Young v.
Fordice, 520
U. S. 273 (1997), which suggest that covered jurisdictions need
not seek preclearance when a noncovered entity requires them to
implement specific voting changes. See
Connor v.
Johnson,
supra, at 691 (holding that covered jurisdictions need not
preclear voting changes ordered by a federal court);
Young
v.
Fordice, supra, at 290 (noting that a State's adoption of
the National Voter Registration Act's registration system "is not,
by itself, a change for the purposes of § 5, for the State has no
choice but to do so").
I concur in the majority's disposition of this case, however,
because it is clear that the state enactments requiring the voting
changes at issue in fact embodied the policy preferences and
determinations of the county itself. See
McDaniel v.
Sanchez, 452
U. S. 130, 148-151 (1981) (voting changes contained in
federal-court order require preclearance if they were proposed by
the covered jurisdiction);
Young v.
Fordice, supra,
at 285 (state changes made in an effort to comply with federal law
require preclearance if they "reflect the
289
exercise of policy choice and discretion by [state] officials").
For example, the 1979 state law which codified the county's merger
of its municipal court districts stated on its face that it was
enacted at the county's behest. 1979 Cal. Stats., ch. 694, § 4
("[T]his act is in accordance with the request of a local
governmental entity or entities which desired legislative authority
to carry out the program specified in this act"). In these
circumstances, the county was required to seek preclearance of the
voting changes codified by the state enactments.
JUSTICE THOMAS, dissenting.
The majority today interprets the phrase "seek to administer" as
used in § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c,
to require that a covered political subdivision seek federal
approval of any law enacted by a noncovered State that effects a
change with respect to voting in the covered political subdivision,
so long as the covered political subdivision somehow implements the
State's law. I do not think the majority's is the best reading of
the statute; moreover, I think the majority's interpretation is
constitutionally doubtful. I would read § 5 to require preclearance
only of those voting changes that are the direct product of a
covered jurisdiction's policy choices. Accordingly, I respectfully
dissent.
I
As the majority notes,
ante, at 269, Monterey County
(County) is a covered jurisdiction under the Voting Rights Act, but
the State of California is not. Section 5 of the Voting Rights Act
provides that whenever 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" that differs from those in effect on the date
that the State or subdivision became a covered jurisdiction, it
must obtain
290
federal approval of the new voting requirement.1 Although the
County elected its municipal judges from separate districts at the
time it became subject to the Act's preclearance requirement,
California law now requires that the County elect its judges from a
single judicial district. This appeal, then, squarely puts before
us for the first time the question whether § 5 requires federal
preclearance of a noncovered State's laws effecting a change with
respect to voting in one of its covered political subdivisions.
The majority concludes that the County must preclear the State's
laws because it "seek[s] to administer" the state districting
scheme.
Ante, at 278.2 The Voting Rights Act does not define
the phrase "seek to administer," and the majority's construction of
the phrase is not plainly erroneous. "[A]dminister" can plausibly
be read, in isolation, to encompass "nondiscretionary acts by
covered jurisdictions endeavoring to comply with the superior law
of the State."
Ante, at 279. But I do not think that the
majority's reading of the statute is the best one. "[S]eek to
administer" must be read in light of its surrounding terms. Section
5 requires that a covered political subdivision obtain federal
preclearance whenever it "shall enact or seek to administer" voting
changes. The term "administer" is best understood when read in
contrast to "enact." In my view, Congress intended "administer" to
reach those changes in voting qualifications, prerequisites,
standards, practices, or procedures that a covered jurisdiction
imposes in a way other than formal enactment. In other words, the
statute is designed to ensure that
1 For convenience, I use the shorthand "voting change" or
"change with respect to voting" throughout. But I adhere to my view
that not all changes affecting voting are covered by §§2 and 5 of
the Voting Rights Act, as those sections are properly understood.
See
Holder v.
Hall, 512
2 Even were I to agree with the majority's interpretation of the
statute, I am not convinced that the County implements the State's
districting laws simply by administering elections, as the majority
apparently believes.
291
a covered jurisdiction cannot cleverly avoid preclearance
requirements by the simple expedient of making voting changes by
nonlegislative means.
The majority's interpretation appears to render superfluous the
"enact" prong of the statute. A person could not be "denied the
right to vote for failure to comply with" a covered jurisdiction's
enactment affecting voting, as § 5 prohibits absent federal
preclearance, unless the jurisdiction was administering its enacted
laws. And the majority's explanation that "seek" as it modifies "to
administer" is a "temporal distinction,"
ante, at 279, is
unsatisfactory because it ignores that "shall" as it modifies
"enact" is also a temporal limitation. Both prongs of the statute,
not surprisingly, are written in terms of simple futurity, given §
5's prophylactic nature.
My interpretation of the statutory phrase also more accurately
reflects the section's purpose. As we have previously recognized, §
5 was enacted as
" 'a response to a common practice in some jurisdictions of
staying one step ahead of the federal courts by passing new
discriminatory voting laws as soon as the old ones had been struck
down .... Congress therefore decided ... "to shift the advantage of
time and inertia from the perpetrators of the evil to its
victi[m]," .... '" Beer v. United States, 425 U. S. 130, 140 (1976)
(quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)).
See also
Reno v.
Bossier Parish School Bd.,
520 U. S. 471,
477 (1997) (quoting
Beer); Miller v.
Johnson,
515 U. S. 900,
926 (1995) (same). It follows that Congress intended to subject to
federal preclearance only the policy decisions made by
jurisdictions that it found to be the "perpetrators of the evil" by
means of the § 4(b) coverage formula that the majority describes,
ante, at 269-270. California has never been found to satisfy
the coverage test and therefore is not one of the "perpetrators"
that § 5 is designed to thwart. I therefore
292
see no reason to believe that Congress intended § 5 to require
federal approval of the State's policy choices.3
The Government, as
amicus curiae supporting appellants,
suggests that the State enacted its district consolidation
legislation at the County's suggestion, implying that the state
judicial district consolidation statutes are the product of the
County's policy choices. Brief for United States as
Amicus
Curiae 22-25. I recognize that in
McDaniel v.
Sanchez, 452 U. S. 130 (1981), we required preclearance of a
court-ordered voting change in a covered jurisdiction because the
plan that the court had ordered was submitted by, and reflected the
policy choices of, that covered jurisdiction, even though we had
decided, in
Connor v.
Johnson, 402 U. S. 690 (1971)
(per curiam), that federal court-ordered voting changes need
not be precleared. 452 U. S., at 147, 153. We stated that "[a]s we
construe the congressional mandate, it requires that whenever a
covered jurisdiction submits a proposal reflecting the policy
choices of the elected representatives of the people ... the
preclearance requirement of the Voting
3 I recognize that we have interpreted § 5 to reach entities
that did not obviously fall within the definition of covered "State
or political subdivision" in prior cases. For example, in
United
States v.
Sheffield Bd. of Comm'rs, 435 U. S. 110 (1978), we
held that although the city of Sheffield, Alabama, was not a
"political subdivision" under the Act, it was nevertheless subject
to § 5's preclearance requirements because it was a "political
unit" of the covered State.
Id., at 127-128. Whether
Sheffield was correct as an original matter, the "top-down"
approach to coverage that it announced is simply not implicated in
this case; appellants argue for a "bottom-up" approach to coverage
questions that I do not believe the reasoning of
Sheffield
supports. And in
Morse v.
Republican Party of Va.,
517 U. S. 186
(1996), the judgment of the Court was that § 5 could be extended to
reach the activities of political parties in covered States. I
adhere to the views that I expressed in dissent, but at most, that
case stands for the proposition that for purposes of § 5
preclearance, "State" in some (but not all) instances is
"coextensive with the constitutional doctrine of state action."
Id., at 265 (THOMAS, J., dissenting). Of course, this case
requires us to interpret the phrase "seek to administer," not § 5's
"State or political subdivision" language.
293
Rights Act is applicable."
Id., at 153. Although our
holding in
McDaniel is not obviously consistent with the
text of § 5 as I would interpret it, it at least appears to be
consistent with the policy that we have said underlies § 5. See
Beer, supra, at 140. Regardless of whether the legislative
product of a noncovered jurisdiction would ever be subject to the
preclearance requirement if it could be demonstrated that a state
law is a product of collusion between state and local governments,
the record in this case does not support such a claim. And
appellants did not make this argument, either in their complaint
filed in the District Court 4 or in their briefs before this
Court.
II
Moreover, my reading of § 5 avoids the majority's
constitutionally doubtful interpretation. "[W]here a statute is
susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which
such questions are avoided, our duty is to adopt the latter."
United States ex rel. Attorney General v.
Delaware
&
Hudson Co., 213 U. S. 366, 408
(1909); see also
Feltner v.
Columbia Pictures Television,
Inc., 523 U. S.
340, 355, 356-359 (1998) (SCALIA, J., concurring in
judgment).
Section 5 is a unique requirement that exacts significant
federalism costs, as we have recognized on more than one occasion.
See
Bossier Parish, supra, at 480;
Miller v.
Johnson, supra, at 926; see also
City of Rome v.
United States, 446 U. S. 156, 200 (1980)
(Powell, J., dissenting);
United States v.
Sheffield Bd.
of Comm'rs, 435
U. S. 110, 141 (1978)
4 For somewhat similar reasons, even if I agreed with the
majority's interpretation of the statute, I would still affirm the
District Court's dismissal of appellants' first amended complaint,
which did not ask that the County be ordered to preclear the
State's laws. The only coverage question the complaint raised was
whether the County's antecedent consolidation ordinances needed to
be precleared. App. to Juris. Statement 83-104.
294
(STEVENS, J., dissenting);
South Carolina v.
Katzenbach, 383 U. S. 301, 358-360 (1966) (Black, J.,
concurring and dissenting). The section's interference with state
sovereignty is quite drastic-covered States and political
subdivisions may not give effect to their policy choices affecting
voting without first obtaining the Federal Government's approval.
As Justice Powell wrote in
City of Rome, the section's
"encroachment is especially troubling because it destroys local
control of the means of self-government, one of the central values
of our polity." 446 U. S., at 20l.
Despite these serious and undeniable costs, we have twice upheld
the preclearance requirement as a constitutional exercise of
Congress' Fifteenth Amendment enforcement power,5 first in
Katzenbach and again in
City of Rome. In those cases,
we compared Congress' Fifteenth Amendment enforcement power to its
broad authority under the Necessary and Proper Clause. See
City
of Rome, supra, at 175;
Katzenbach, supra, at 326. But
we have taken great care to emphasize that Congress' enforcement
power is remedial in nature. See
City of Boerne v.
Flores, 521 U.
S. 507, 516529 (1997);
Katzenbach, supra, at
327-328.6
There can be no remedy without a wrong. Essential to our
holdings in
Katzenbach and
City of Rome was our
conclusion that Congress was remedying the effects of prior
intentional racial discrimination. In both cases, we
required Congress to have some evidence that the jurisdiction
bur-
5 The Fifteenth Amendment provides:
"Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of
servitude.
"Section 2. The Congress shall have power to enforce this
article by appropriate legislation."
6 Although
City of Boerne involved the Fourteenth
Amendment enforcement power, we have always treated the nature of
the enforcement powers conferred by the Fourteenth and Fifteenth
Amendments as coextensive. See,
e. g.,
City of
Boerne, 521 U. S., at 518-528;
James v.
Bowman,
190 U. S. 127
(1903).
295
dened with preclearance obligations had actually engaged in such
intentional discrimination. In
Katzenbach, we recognized
that Congress had "evidence of actual voting discrimination" in
some jurisdictions. 383 U. S., at 330. In each of those
jurisdictions, two characteristics were present-depressed voter
turnout and the use of a test or device. We concluded that it was
permissible for Congress to impose § 5 preclearance requirements on
the States and political subdivisions for which Congress had "more
fragmentary evidence" of voting discrimination, id., at 329-330,
where those two conditions (incorporated into the Act's coverage
formula) could be found to exist, "at least in the absence of proof
that [such jurisdictions] have been free of substantial voting
discrimination in recent years," id., at 330. We also thought it
quite important that "the Act provide[d] for termination of special
statutory coverage at the behest of States and political
subdivisions in which the danger of substantial voting
discrimination ha[d] not materialized during the preceding five
years."
Id., at 331. In
City of Rome, we rejected the
city's argument that, because it had not employed any
discriminatory practices over the relevant period, § 5 was
unconstitutional as applied. We thought that "because electoral
changes by jurisdictions
with a demonstrable history of
intentional racial discrimination in voting create the risk of
purposeful discrimination, it was proper [for Congress] to prohibit
changes that have a discriminatory impact." 446 U. S., at 177
(emphasis added; footnote omitted).
The majority "find[s] no merit in the claim that Congress lacks
Fifteenth Amendment authority to require federal approval before
the implementation of a state law that may have [a discriminatory]
effect in a covered county."
Ante, at 283-284. In my view,
it overlooks our warning in
City of Boerne that "[t]he
appropriateness of remedial measures must be considered in light of
the evil presented." 521 U. S., at 530; see also
City of Rome,
supra, at 211-219 (REHNQUIST, J., dissenting). There has been
no legislative finding
296
that the State of California has ever intentionally
discriminated on the basis of race, color, or ethnicity with
respect to voting. Nor has the State been found to run afoul of the
Act's overbroad coverage formula. We recognized in City
of
Boerne that "[p]reventive measures prohibiting certain types of
laws may be appropriate when there is reason to believe that many
of the laws affected by the congressional enactment have a
significant likelihood of being unconstitutional." 521 U. S., at
532. But I do not see any reason to think that California's laws
discriminate in any way against voting or that the State's laws
will be anything but constitutional. I therefore doubt that § 5 can
be extended to require preclearance of the State's enactments and
remain consistent with the Constitution.
Moreover, it is plain that the majority's reading of § 5 raises
to new levels the federalism costs that the statute imposes. If
preclearance of a State's voting law is denied when sought by a
covered political subdivision, the State will be unable to develop
a consistent statewide voting policy; its laws will be enforceable
in noncovered subdivisions, but not in the covered subdivision. And
under the majority's reading of § 5, noncovered States are forced
to rely upon their covered political subdivisions to defend their
interests before the Federal Government. The subdivision may not
know the State's interest, or may simply disagree with the State
and therefore choose not to defend vigorously the State's policy
choices before the Federal Government. Indeed, in this case, the
County represented that it "concurs with the essential arguments of
the Appellants that state law affecting voting, insofar as such law
may affect elections within a covered jurisdiction, must be
precleared .... " Brief for Appellee Monterey County 1.
The majority attempts to bolster its argument by suggesting that
requiring the County to submit the State's laws for preclearance is
no more unusual than the Act's suspension of literacy tests in
covered jurisdictions. It points out that
297
in some instances, literacy tests were required by the laws of
noncovered jurisdictions, including California.
Ante, at
284. I do not think, however, that the suspension of tests and the
preclearance remedy can be compared. The literacy test had a
history as a "notorious means to deny and abridge voting rights on
racial grounds."
Katzenbach, supra, at 355 (Black, J.,
concurring and dissenting). Literacy tests were unfairly
administered; whites were given easy questions, and blacks were
given more difficult questions, such as "the number of bubbles in a
soap bar, the news contained in a copy of the
Peking Daily,
the meaning of obscure passages in state constitutions, and the
definition of terms such as
habeas corpus." A. Thernstrom,
Whose Votes Count?, Affirmative Action and Minority Voting Rights
15 (1987). When we upheld the constitutionality of the suspension
provision of the Voting Rights Act in
Katzenbach, we
indicated that the tests had actually been employed to
disenfranchise black voters. 383 U. S., at 333-334. Later in
Oregon v.
Mitchell, 400 U. S. 112 (1970), we
upheld the national ban on the use of such tests-even though we
recognized that they were not facially unconstitutional-as a proper
means of preventing purposeful discrimination in the application of
the tests and remedying prior constitutional violations by state
and local governments in the education of minorities. Congress'
suspension of tests, then, was a focused remedy directed at one
particular prerequisite to voting. In contrast, the preclearance
requirement presumes that a voting change-no matter how
innocuous-is invalid, and prevents its enforcement until the
Federal Government gives its approval.
***
I would interpret § 5 only to require preclearance of a covered
jurisdiction's changes affecting voting qualifications,
prerequisites, standards, practices, or procedures, whether made by
formal enactment or otherwise. In my view, this
298
is the best interpretation of the statute and it avoids the
grave constitutional concerns that the majority's contrary
interpretation raises. I respectfully dissent.
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