OCTOBER TERM, 1991
Syllabus
PRESLEY
v. ETOWAH COUNTY COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF ALABAMA
No. 90-711. Argued November 12, 1991-Decided January 27,
1992*
Section 5 of the Voting Rights Act of 1965 requires a covered
jurisdiction to obtain either judicial or administrative
preclearance before enforcing any new "voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting." In various Alabama counties, voters elect
members of county commissions whose principal function is to
supervise and control county road maintenance, repair, and
construction. In No. 90-711, the Etowah County Commission, without
seeking preclearance, passed,
inter alia, its "Common Fund
Resolution," which altered the prior practice of allowing each
commissioner full authority to determine how to spend funds
allocated to his own road district. The resolution was passed by
the four holdover members of the commission shortly after appellant
Presley, a black man, and another new member were elected from
districts established under a consent decree, the terms of which
were precleared by the Attorney General. In No. 90-712, the Russell
County Commission adopted a "Unit System," which abolished
individual road districts and transferred responsibility for all
road operations to the county engineer, a commission appointee.
Neither the commission's resolution nor implementing state
legislation was submitted for preclearance. Subsequent litigation
led to a consent decree, which was precleared by the Justice
Department without any mention of the Unit System changes, and
under the terms of which appellants Mack and Gosha were elected as
Russell County's first black county commissioners in modern times.
They, along with Presley, filed suit in the District Court,
alleging, among other things, that Etowah and Russell Counties had
violated § 5 by failing to obtain preclearance for, respectively,
the Common Fund Resolution and the adoption of the Unit System. A
three-judge court convened pursuant to 28 U. S. C. § 2284 held that
neither matter was subject to § 5 preclearance.
Held: Neither the Common Fund Resolution nor adoption of
the Unit System was a change "with respect to voting" covered by §
5. Pp. 500-510.
*Together with No. 90-712,
Mack et al. v.
Russell
County Commission et al., also on appeal from the same
court.
492
Syllabus
(a)
Allen v.
State Bd. of Elections, 393 U. S. 544, and this
Court's later decisions reveal a consistent requirement that
changes subject to § 5 pertain only to voting. Without implying
that the four typologies exhaust the statute's coverage, it can be
said that the cases fall within one of the following contexts: (1)
changes in the manner of voting; (2) changes in candidacy
requirements and qualifications; (3) changes in the composition of
the electorate that may vote for candidates for a given office; and
(4) changes affecting the creation or abolition of an elective
office. The first three categories involve changes in election
procedures, while all the examples within the fourth category might
be termed substantive changes as to which offices are elective. But
whether the changes are of procedure or substance, each has a
direct relation to voting and the election process. Pp.
500-503.
(b) The Etowah County Commission's Common Fund Resolution was
not subject to § 5's preclearance requirement. It is not a change
within any of the categories recognized in
Allen or the
later cases; rather, it concerns only the internal operations of an
elected body and the distribution of power among officials and,
thus, has no direct relation to, or impact on, voting. The view
advanced by appellants and the United States-to the effect that any
act diminishing or increasing a local official's power would
require preclearance-would work an unconstrained expansion of § 5's
coverage beyond the statutory language and congressional intent by
including innumerable enactments, such as budget measures, that
alter the power and decisionmaking authority of elected officials
but have nothing to do with voting, and fails to provide a workable
standard for distinguishing between governmental decisions that
involve voting and those that do not. Some standard is necessary,
for in a real sense every decision taken by government implicates
voting, yet no one would contend that Congress meant the Act to
subject all or even most government decisions in covered
jurisdictions to federal supervision. pp. 503-506.
(c) The Russell County Commission's adoption of the Unit System
and its concomitant transfer of operations to the county engineer
do not constitute a change covered by § 5. There is not even an
arguable basis for saying that the Unit System's adoption fits
within any of the first three categories of changes in voting rules
that this Court has recognized. As to the fourth category, the
argument that the delegation of authority to an appointed official
is similar to the replacement of an elected official with an
appointed one and is therefore subject to § 5 under
Bunton
v.
Patterson, decided with
Allen, supra, ignores the
rationale for the
Bunton holding: The practice in question
changed an elective office to an appointive one. Here, the citizens
of Russell County may still vote for members of the county
commission. The fact that those commissioners exercise less
authority than they once did is a
493
routine matter of governmental administration that does not in
itself render the Unit System a rule governing voting. Because the
county commission retains substantial authority, including the
power to appoint the county engineer and set his or her budget,
this Court need not consider whether an otherwise uncovered
enactment might under some circumstances rise to the level of a
de facto replacement of an elected office with an appointive
one, within the
Bunton rule. Pp. 506-508.
(d) Although the construction placed upon the Act by the
Attorney General is ordinarily entitled to considerable deference,
this Court need not defer to the United States' interpretation that
the changes at issue are covered by § 5, since that section is
unambiguous with respect to the question whether it covers changes
other than changes in rules governing voting: It does not. See,
e. g., Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837,842-844.
Pp. 508-509.
Affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, SOUTER, and THOMAS, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which WHITE and
BLACKMUN, JJ., joined,
post, p. 510.
Edward Still argued the cause for appellants in both
cases.
With him on the briefs were Pamela Karlan, Lani Guinier, James
U. Blacksher, and John C. Falkenberry.
Robert A. Long, Jr., argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Starr, Assistant Attorney General Dunne, Deputy Solicitor
General Roberts, Deputy Assistant Attorney General Clegg, and David
K. Flynn.
Paul M. Smith argued the cause for appellees in both
cases. With him on the brief for appellee Etowah County Commission
were
George Howell (Jack) Floyd and
Mary Ann Ross
Stackhouse. James W Webb and
Kendrick E. Webb filed a
brief for appellee Russell County Commission.t
JUSTICE KENNEDY delivered the opinion of the Court.
In various Alabama counties voters elect members of county
commissions whose principal function is to supervise
t
Julius L. Chambers, Charles Stephen Ralston, and
Dayna L. Cunningham filed a brief for the NAACP Legal
Defense and Educational Fund, Inc., as
amicus curiae urging
reversal.
494
and control the maintenance, repair, and construction of the
county roads. See Ala. Code §§ 11-3-1, 11-3-10 (1975). The
consolidated appeals now before us concern certain changes in the
decisionmaking authority of the elected members on two different
county commissions, and the question to be decided is whether these
were changes "with respect to voting" within the meaning of § 5 of
the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S.
C. § 1973c. These cases have significance well beyond the two
county commissions; for the appellants, and the United States as
amicus curiae, ask us to adopt a rule embracing the routine
actions of state and local governments at all levels. We must
interpret the provisions of § 5, which require a jurisdiction
covered by the Act to obtain either judicial or administrative
preclearance before enforcing any new "voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting." *
* As set forth in 42 U. S. C. § 1973c, § 5 provides:
''Whenever a State or political subdivision with respect to
which the prohibitions set forth in section 1973b(a) of this title
based upon determinations made under the first sentence of section
1973b(b) of this title are in effect 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, 1964, or whenever a
State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the second sentence of section 1973b(b)
of this title are in effect 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, or whenever a State or
political subdivision with respect to which the prohibitions set
forth in section 1973b(a) of this title based upon determinations
made under the third sentence of section 1973b(b) of this title are
in effect 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, 1972, such State or subdivision may institute
an action in the United States District Court for the District of
Columbia for a declaratory judgment that such qualification,
prerequisite, standard, practice, or procedure does not have the
purpose and will not
495
I
To determine whether there have been changes with respect to
voting, we must compare the challenged practices with those in
existence before they were adopted. Absent relevant intervening
changes, the Act requires us to use practices in existence on
November 1, 1964, as our standard of comparison.
A
We consider first the Etowah County Commission. On November 1,
1964, commission members were elected at large under a "residency
district" system. The entire electorate of Etowah County voted on
candidates for each of the five seats. Four of the seats
corresponded to the four
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, and unless and until
the court enters such judgment no person shall be denied the right
to vote for failure to comply with such qualification,
prerequisite, standard, practice, or procedure:
Provided,
That such qualification, prerequisite, standard, practice, or
procedure may be enforced without such proceeding if the
qualification, prerequisite, standard, practice, or procedure has
been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made. Neither an affirmative indication by the Attorney
General that no objection will be made, nor the Attorney General's
failure to object, nor a declaratory judgment entered under this
section shall bar a subsequent action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or procedure. In
the event the Attorney General affirmatively indicates that no
objection will be made within the sixty-day period following
receipt of a submission, the Attorney General may reserve the right
to reexamine the submission if additional information comes to his
attention during the remainder of the sixty-day period which would
otherwise require objection in accordance with this section. Any
action under this section shall be heard and determined by a court
of three judges in accordance with the provisions of section 2284
of title 28 and any appeal shall lie to the Supreme Court."
496
residency districts of the county. Candidates were required to
reside in the appropriate district. The fifth member, the chairman,
was not subject to a district residency requirement, though
residency in the county itself was a requirement.
Each of the four residency districts functioned as a road
district. The commissioner residing in the district exercised
control over a road shop, equipment, and road crew for that
district. It was the practice of the commission to vote as a
collective body on the division of funds among the road districts,
but once funds were divided each commissioner exercised individual
control over spending priorities within his district. The chairman
was responsible for overseeing the solid waste authority, preparing
the budget, and managing the courthouse building and grounds.
Under a consent decree issued in 1986, see
Dillard v.
Crenshaw County, Civ. Action No. 85-T-1332-N (MD Ala., Nov.
12, 1986), the commission is being restructured, so that after a
transition period there will be a six-member commission, with each
of the members elected by the voters of a different district. The
changes required by the consent decree were pre cleared by the
Attorney General. For present purposes, it suffices to say that
when this litigation began the commission consisted of four
holdover members who had been on the commission before the entry of
the consent decree and two new members elected from new districts.
Commissioner Williams, who is white, was elected from new district
6, and Commissioner Presley, who is black, was elected from new
district 5. Presley is the principal appellant in the Etowah County
case. His complaint relates not to the elections but to actions
taken by the four holdover members when he and Williams first took
office.
On August 25, 1987, the commission passed the "Road Supervision
Resolution." It provided that each holdover commissioner would
continue to control the workers and
497
operations assigned to his respective road shop, which, it must
be remembered, accounted for all the road shops the county had. It
also gave the four holdovers joint responsibility for overseeing
the repair, maintenance, and improvement of all the roads of Etowah
County in order to pick up the roads in the districts where the new
commissioners resided. The new commissioners, now foreclosed from
exercising any authority over roads, were given other functions
under the resolution. Presley was to oversee maintenance of the
county courthouse and Williams the operation of the engineering
department. The Road Supervision Resolution was passed by a 4-to-2
margin, with the two new commissioners dissenting.
The same day the Road Supervision Resolution was passed, the
commission passed a second, the so-called "Common Fund Resolution."
It provides in part that
"all monies earmarked and budgeted for repair, maintenance and
improvement of the streets, roads and public ways of Etowah County
[shall] be placed and maintained in common accounts, [shall] not be
allocated, budgeted or designated for use in districts, and [shall]
be used county-wide in accordance with need, for the repair,
maintenance and improvement of all streets, roads and public ways
in Etowah County which are under the jurisdiction of the Etowah
County Commission." App. to Juris. Statement in No. 90-711, p.
49a.
This had the effect of altering the prior practice of allowing
each commissioner full authority to determine how to spend the
funds allocated to his own district. The Etowah County Commission
did not seek judicial or administrative preclearance of either the
Road Supervision Resolution or the Common Fund Resolution. The
District Court held that the Road Supervision Resolution was
subject to preclearance but that the Common Fund Resolution was
not. No appeal was
498
taken from the first ruling, so only the Common Fund Resolution
is before us in the Etowah County case.
B
We turn next to the background of the Russell County Commission.
On November 1, 1964, it had three commissioners. Like the members
of the Etowah County Commission before the consent decree change,
Russell County Commissioners were elected at large by the entire
electorate, subject to a requirement that a candidate for
commissioner reside in the district corresponding to the seat he or
she sought. A 1972 federal court order, see
Anthony v.
Russell County, No. 961-E (MD Ala., Nov. 21, 1972), required
that the commission be expanded to include five members. The two
new members were both elected at large from one newly created
residency district for Phenix City, the largest city in Russell
County. Following the implementation of the court order, each of
the three rural commissioners had individual authority over his own
road shop, road crew, and equipment. The three rural commissioners
also had individual authority for road and bridge repair and
construction within their separate residency districts. Although
funding for new construction and major repair projects was subject
to a vote by the entire commission, individual commissioners could
authorize expenditures for routine repair and maintenance work as
well as routine purchase orders without seeking approval from the
entire commission.
Following the indictment of one commissioner on charges of
corruption in Russell County road operations, in May 1979 the
commission passed a resolution delegating control over road
construction, maintenance, personnel, and inventory to the county
engineer, an official appointed by the entire commission and
responsible to it. The engineer's previous duties had been limited
to engineering and surveying services for the separate road shops
and running a small crew devoted to pothole repair. Although the
May 1979 resolution
499
may have sufficed for the necessary delegation of authority to
the county engineer, compare Ala. Code §23-1-80 (1975) with Ala.
Code § 11-6-3 (1975), the commission also requested the state
legislature to pass implementing legislation. The Alabama
Legislature did so on July 30, 1979, when it enacted Act No.
79-652, 1979 Ala. Acts 1132. It provides in pertinent part:
"Section 1. All functions, duties and responsibilities for the
construction, maintenance and repair of public roads, highways,
bridges and ferries in Russell County are hereby vested in the
county engineer, who shall, insofar as possible, construct and
maintain such roads, highways, bridges and ferries on the basis of
the county as a whole or as a unit, without regard to district or
beat lines."
The parties refer to abolition of the individual road districts
and transfer of responsibility for all road operations to the
county engineer as the adoption of a "Unit System." Neither the
resolution nor the statute which authorized the Unit System was
submitted for preclearance under § 5.
Litigation involving the Russell County Commission led to a 1985
consent decree, see
Sumbry v.
Russell County, No.
84-T-1386-E (MD Ala., Mar. 17, 1985), that enlarged the commission
to seven members and replaced the at-large election system with
elections on a district-by-district basis. Without any mention of
the Unit System changes, the consent decree was precleared by the
Department of Justice under § 5. Following its implementation,
appellants Mack and Gosha were elected in 1986. They are Russell
County's first black county commissioners in modern times.
C
In May 1989, appellants in both cases now before us filed a
single complaint in the District Court for the Middle District of
Alabama, alleging racial discrimination in the
500
operation of the Etowah and Russell County Commissions in
violation of prior court orders, the Constitution, Title VI of the
Civil Rights Act of 1964, 42 U. S. C. § 2000d, and § 2 of the
Voting Rights Act, 42 U. S. C. § 1973. In a series of amended
complaints, appellants added claims under § 5. The § 5 claims
alleged that Etowah County had violated the Act by failing to
obtain preclearance of the 1987 Road Supervision and Common Fund
Resolutions, and that Russell County had failed to preclear the
1979 change to the Unit System. Pursuant to 28 U. S. C. § 2284, a
three-judge District Court was convened to hear appellants' § 5
claims. The other claims still pend in the District Court.
With respect to the issues now before us, a majority of the
District Court held that neither the Common Fund Resolution of the
Etowah County Commission nor the adoption of the Unit System in
Russell County was subject to § 5 preclearance. The court held that
changes in the responsibilities of elected officials are subject to
preclearance when they "effect a significant relative change in the
powers exercised by governmental officials elected by, or
responsible to, substantially different constituencies of voters."
App. to Juris. Statement in No. 90-711, pp. 13a-14a. Applying its
test, the court found that the Common Fund Resolution in Etowah
County did not effect a significant change and adoption of the Unit
System in Russell County did not transfer authority among officials
responsible to different constituencies. We noted probable
jurisdiction. 500 U. S. 914 (1991). We affirm the District Court
but adopt a different interpretation of § 5 as the rationale for
our decision.
II
We first considered the Voting Rights Act in
South
Carolina v.
Katzenbach, 383 U. S. 301 (1966).
Although we acknowledged that suspension of new voting regulations
pending preclearance was an extraordinary departure from the
traditional course of relations between the States and the
501
Federal Government, id., at 334, we held it constitutional as a
permitted congressional response to the unremitting attempts by
some state and local officials to frustrate their citizens' equal
enjoyment of the right to vote. See id., at 308-315.
After
South Carolina v.
Katzenbach upheld the
Voting Rights Act against a constitutional challenge, it was not
until we heard
Allen v.
State Bd. of Elections,
393 U. S. 544
(1969), that we were called upon to decide whether particular
changes were covered by § 5. There we rejected a narrow
construction, one which would have limited § 5 to state rules
prescribing who may register to vote. We held that the section
applies also to state rules relating to the qualifications of
candidates and to state decisions as to which offices shall be
elective.
Id., at 564-565. We observed that "[t]he Voting
Rights 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. Our decision,
and its rationale, have proved sound, and we adhere to both.
In giving a broad construction to § 5 in
Allen, we noted
that "Congress intended to reach any state enactment which altered
the election law of a covered State in even a minor way."
Id., at 566. Relying on this language and its application in
later cases, appellants and the United States now argue that
because there is no
de minimis exception to § 5, the changes
at issue here must be subject to preclearance.
E. g., Brief
for United States as
Amicus Curiae 21-22. This argument,
however, assumes the answer to the principal question in the case:
whether the changes at issue are changes in voting, or as we
phrased it in
Allen, "election law."
We agree that all changes in voting must be precleared and with
Allen's holding that the scope of § 5 is expansive within
its sphere of operation. That sphere comprehends all changes to
rules governing voting, changes effected
502
through any of the mechanisms described in the statute. Those
mechanisms are any "qualification or prerequisite" or any
"standard, practice, or procedure with respect to voting."
The principle that § 5 covers voting changes over a wide range
is well illustrated by the separate cases we considered in the
single opinion for the Court in
Allen. Allen involved four
cases. The eponymous
Allen v.
State Bd. of Elections
concerned a change in the procedures for the casting of write-in
ballots. 393 U. S., at 570-571. In
Whitley v.
Williams, there were changes in the requirements for
independent candidates running in general elections.
Id., at
551. The challenged procedure in
Fairley v.
Patterson
resulted in a change from single-district voting to at-large
voting.
Id., at 550. The remaining case,
Bunton v.
Patterson, involved a statute which provided that officials
who in previous years had been elected would be appointed.
Id., at 550-551. We held that the changes in each of the
four cases were covered by §5.
Our cases since
Allen reveal a consistent requirement
that changes subject to § 5 pertain only to voting. Without
implying that the four typologies exhaust the statute's coverage,
we can say these later cases fall within one of the four factual
contexts presented in the
Allen cases. First, we have held
that § 5 applies to cases like
Allen v.
State Bd. of
Elections itself, in which the changes involved the manner of
voting. See
Perkins v.
Matthews, 400 U. S. 379, 387 (1971)
(location of polling places). Second, we have held that § 5 applies
to cases like
Whitley v.
Williams, which involve
candidacy requirements and qualifications. See
NAACP v.
Hampton County Election Comm'n, 470 U. S. 166 (1985)
(change in filing deadline);
Hadnott v.
Amos,
394 U. S. 358
(1969) (same);
Dougherty County Bd. of Ed. v.
White,
439 U. S. 32 (1978) (rule requiring board of education members
to take unpaid leave of absence while campaigning for office).
Third, we have applied § 5 to cases like
Fairley v.
Patterson,
503
which concerned changes in the composition of the electorate
that may vote for candidates for a given office. See
Perkins
v.
Matthews, 400 U. S., at 394 (change from ward to at-large
elections); id., at 388 (boundary lines of voting districts);
City of Richmond v.
United States, 422 U. S. 358 (1975)
(same). Fourth, we have made clear that § 5 applies to changes,
like the one in
Bunton v.
Patterson, affecting the
creation or abolition of an elective office. See
McCain v.
Lybrand, 465
U. S. 236 (1984) (appointed officials replaced by elected
officials);
Lockhart v.
United States, 460 U. S. 125 (1983)
(increase in number of city councilors).
The first three categories involve changes in election
procedures, while all the examples within the fourth category might
be termed substantive changes as to which offices are elective. But
whether the changes are of procedure or substance, each has a
direct relation to voting and the election process.
III
A comparison of the changes at issue here with those in our
prior decisions demonstrates that the present cases do not involve
changes covered by the Act.
A
The Etowah County Commission's Common Fund Resolution is not a
change within any of the categories recognized in
Allen or
our later cases. It has no connection to voting procedures: It does
not affect the manner of holding elections, it alters or imposes no
candidacy qualifications or requirements, and it leaves undisturbed
the composition of the electorate. It also has no bearing on the
substance of voting power, for it does not increase or diminish the
number of officials for whom the electorate may vote. Rather, the
Common Fund Resolution concerns the internal operations of an
elected body.
Appellants argue that the Common Fund Resolution is a covered
change because after its enactment each commis-
504
sioner has less individual power than before the resolution. A
citizen casting a ballot for a commissioner today votes for an
individual with less authority than before the resolution, and so,
it is said, the value of the vote has been diminished.
Were we to accept appellants' proffered reading of § 5, we would
work an unconstrained expansion of its coverage. Innumerable state
and local enactments having nothing to do with voting affect the
power of elected officials. When a state or local body adopts a new
governmental program or modifies an existing one it will often be
the case that it changes the powers of elected officials. So too,
when a state or local body alters its internal operating
procedures, for example, by modifying its subcommittee assignment
system, it "implicate[s] an elected official's
decisionmaking
authority." Brief for United States as
Amicus Curiae
17-18 (emphasis in original).
Appellants and the United States fail to provide a workable
standard for distinguishing between changes in rules governing
voting and changes in the routine organization and functioning of
government. Some standard is necessary, for in a real sense every
decision taken by government implicates voting. This is but the
felicitous consequence of democracy, in which power derives from
the people. Yet no one would contend that when Congress enacted the
Voting Rights Act it meant to subject all or even most decisions of
government in covered jurisdictions to federal supervision. Rather,
the Act by its terms covers any "voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting." 42 U. S. C. § 1973c. A faithful effort to
implement the design of the statute must begin by drawing lines
between those governmental decisions that involve voting and those
that do not.
A simple example shows the inadequacy of the line proffered by
appellants and the United States. Under appellants' view, every
time a covered jurisdiction passed a budget that differed from the
previous year's budget it would be
505
required to obtain preclearance. The amount of funds available
to an elected official has a profound effect on the power
exercised. A vote for an ill-funded official is less valuable than
a vote for a well-funded one.
No doubt in recognition of the unacceptable consequences of
their views, appellants take the position that while "some budget
changes may affect the right to vote and, under particular
circumstances, would be subject to preclearance," most budget
changes would not. Postargument Letter from Counsel for Appellants,
Nov. 13, 1991 (available in Clerk of Court's case file). Under
their interpretation of § 5, however, appellants fail to give any
workable standard to determine when preclearance is required. And
were we to acknowledge that a budget adjustment is a voting change
in even some instances, the likely consequence is that every budget
change would be covered, for it is well settled that every voting
change with a "potential for discrimination" must be precleared.
Dougherty County Bd. of Ed. v.
White, 439 U. S., at
42.
Confronting this difficulty, at oral argument the United States
suggested that we draw an arbitrary line distinguishing between
budget changes and other changes, Tr. of Oral Arg. 21-23. There is
no principled basis for the distinction, and it would be a marked
departure from the statutory category of voting. If a diminution or
increase in an elected official's powers is a change with respect
to voting, then whether it is accomplished through an enactment or
a budget shift should not matter. Even if we were willing to draw
an unprincipled line excluding budgetary changes but not other
changes in an elected official's decisionmaking authority, the
result would expand the coverage of § 5 well beyond the statutory
language and the intention of Congress.
Under the view advanced by appellants and the United States,
every time a state legislature acts to diminish or increase the
power of local officials, preclearance would be required.
Governmental action decreasing the power of local
506
officials could carry with it a potential for discrimination
against those who represent racial minorities at the local level.
At the same time, increasing the power of local officials will
entail a relative decrease in the power of state officials, and
that too could carry with it a potential for discrimination against
state officials who represent racial minorities at the state level.
The all but limitless minor changes in the allocation of power
among officials and the constant adjustments required for the
efficient governance of every covered State illustrate the
necessity for us to formulate workable rules to confine the
coverage of § 5 to its legitimate sphere: voting.
Changes which affect only the distribution of power among
officials are not subject to § 5 because such changes have no
direct relation to, or impact on, voting. The Etowah County
Commission's Common Fund Resolution was not subject to the
preclearance requirement.
B
We next consider Russell County's adoption of the Unit System
and its concomitant transfer of operations to the county engineer.
Of the four categories of changes in rules governing voting we have
recognized to date, there is not even an arguable basis for saying
that adoption of the Unit System fits within any of the first
three. As to the fourth category, it might be argued that the
delegation of authority to an appointed official is similar to the
replacement of an elected official with an appointed one, the
change we held subject to § 5 in
Bunton v.
Patterson.
This approach, however, would ignore the rationale for our holding:
"[A]fter the change, [the citizen] is prohibited from electing an
officer formerly subject to the approval of the voters."
Allen,
393 U. S., at 569-570. In short, the change in
Bunton v.
Patterson involved a rule governing voting not because it
effected a change in the relative authority of various
governmental
507
officials, but because it changed an elective office to an
appointive one.
The change in Russell County does not prohibit voters "from
electing an officer formerly subject to the [ir] approval."
Allen, supra, at 570. Both before and after the change the
citizens of Russell County were able to vote for the members of the
Russell County Commission. To be sure, after the 1979 resolution
each commissioner exercised less direct authority over road
operations, that authority having been delegated to an official
answerable to the commission. But as we concluded with respect to
Etowah County, the fact that an enactment alters an elected
official's powers does not in itself render the enactment a rule
governing voting.
It is a routine part of governmental administration for
appointive positions to be created or eliminated and for their
powers to be altered. Each time this occurs the relative balance of
authority is altered in some way. The making or unmaking of an
appointive post often will result in the erosion or accretion of
the powers of some official responsible to the electorate, but it
does not follow that those changes are covered by § 5. By requiring
preclearance of changes with respect to voting, Congress did not
mean to subject such routine matters of governance to federal
supervision. Were the rule otherwise, neither state nor local
governments could exercise power in a responsible manner within a
federal system.
The District Court, wrestling with the problem we now face and
recognizing the need to draw principled lines, held that Russell
County's adoption of the Unit System is not a covered change
because it did not transfer power among officials answerable to
different constituencies. Even upon the assumption (the assumption
we reject in this case) that some transfers of power among
government officials could be changes with respect to voting as
that term is used in the Act, we disagree with the District Court's
test. The ques-
508
tion whether power is shifted among officials answerable to the
same or different constituencies is quite distinct from the
question whether the power voters exercise over elected officials
is affected. Intraconstituency changes may have a large indirect
effect on the voters while interconstituency changes may have a
small indirect effect, but in neither case is the effect a change
in voting for purposes of the Act. The test adopted by the District
Court does not provide the workable rule we seek. In any event,
because it proceeds from the faulty premise that reallocations of
authority within government can constitute voting changes, we
cannot accept its approach.
We need not consider here whether an otherwise uncovered
enactment of a jurisdiction subject to the Voting Rights Act might
under some circumstances rise to the level of a
de facto
replacement of an elective office with an appointive one, within
the rule of
Bunton v.
Patterson. For present purposes
it suffices to note that the Russell County Commission retains
substantial authority, including the power to appoint the county
engineer and to set his or her budget. The change at issue in
Russell County is not a covered change.
IV
The United States urges that despite our understanding of the
language of § 5, we should defer to its administrative construction
of the provision. We have recognized that "the construction placed
upon the [Voting Rights] Act by the Attorney General ... is
entitled to considerable deference."
NAACP v.
Hampton
County Election Comm'n, 470 U. S., at 178-179. See also
United States v.
Sheffield Bd. of Comm'rs, 435 U. S. 110, 131
(1978). But the principle has its limits. Deference does not mean
acquiescence. As in other contexts in which we defer to an
administrative interpretation of a statute, we do so only if
Congress has not expressed its intent with respect to the question,
and then only if the administrative interpretation is reasonable.
See,
e. g., Chev-
509
ron U. S.
A. Inc. v.
Natural Resources Defense
Council, Inc., 467 U. S. 837, 842-844
(1984). Because the first of these conditions is not satisfied in
the cases before us we do not defer to the Attorney General's
interpretation of the Act.
We do not believe that in its use of the phrase "voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting," 42 U. S. C. § 1973c, the statute
is ambiguous as to the question whether § 5 extends beyond changes
in rules governing voting. To be sure, reasonable minds may differ
as to whether some particular changes in the law of a covered
jurisdiction should be classified as changes in rules governing
voting. In that sense § 5 leaves a gap for interpretation to fill.
See
Chevron, supra, at 843. When the Attorney General makes
a reasonable argument that a contested change should be classified
as a change in a rule governing voting, we can defer to that
judgment. But § 5 is unambiguous with respect to the question
whether it covers changes other than changes in rules governing
voting: It does not. The administrative position in the present
cases is not entitled to deference, for it suggests the contrary.
The United States argues that the changes are covered by § 5
because they implicate the decisionmaking authority of elected
officials, even though they are not changes in rules governing
voting. This argument does not meet the express requirement of the
statute.
v
Nothing we say implies that the conduct at issue in these cases
is not actionable under a different remedial scheme. The Voting
Rights Act is not an all-purpose antidiscrimination statute. The
fact that the intrusive mechanisms of the Act do not apply to other
forms of pernicious discrimination does not undermine its utility
in combating the specific evils it was designed to address.
Our prior cases hold, and we reaffirm today, that every change
in rules governing voting must be precleared. The
510
legislative history we rehearsed in
South Carolina v.
Katzenbach was cited to demonstrate Congress' concern for
the protection of voting rights. Neither the appellants nor the
United States has pointed to anything we said there or in the
statutes reenacting the Voting Rights Act to suggest that Congress
meant other than what it said when it made § 5 applicable to
changes "with respect to voting" rather than, say, changes "with
respect to governance."
If federalism is to operate as a practical system of governance
and not a mere poetic ideal, the States must be allowed both
predictability and efficiency in structuring their governments.
Constant minor adjustments in the allocation of power among state
and local officials serve this elemental purpose.
Covered changes must bear a direct relation to voting itself.
That direct relation is absent in both cases now before us. The
changes in Etowah and Russell Counties affected only the allocation
of power among governmental officials. They had no impact on the
substantive question whether a particular office would be elective
or the procedural question how an election would be conducted.
Neither change involves a new "voting qualification or prerequisite
to voting, or standard, practice, or procedure with respect to
voting." 42 U. S. C. § 1973c.
The judgment of the District Court is affirmed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE WHITE and JusTICE BLACKMUN
join, dissenting.
In 1986, an important event occurred in each of two Alabama
counties with long histories of white-dominated political
processes. In Etowah County, a black commissioner was elected to
the county commission for the first time in recent history, and in
Russell County, two black commissioners were elected to the county
commission for the first time in
511
"modern times." App. to Juris. Statement of Appellant Presley
4a. Because of the three resolutions at issue in these cases-two
adopted in Etowah County after Commissioner Presley's election and
one adopted in Russell County before the election of Commissioners
Mack and Gosha-none of the three newly elected black commissioners
was able to exercise the decisionmaking authority that had been
traditionally associated with his office.
As I shall explain, this is a case in which a few pages of
history are far more illuminating than volumes of logic and hours
of speculation about hypothetical line-drawing problems. Initially,
however, it is important to note that a different decision in these
cases would not impose any novel or significant burden on those
jurisdictions that remain covered under § 5 of the Voting Rights
Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c.1
Prior to these cases, federal courts had uniformly agreed with
the Attorney General's interpretation that § 5 covered transfers of
decisionmaking power that had a potential for discrimination
against minority voters.2 On at least eight
1 Alabama, like the other States that are covered under § 5, was
placed in that category because of its history of "substantial
voting discrimination."
South Carolina v.
Katzenbach,
383 U. S. 301,329
(1966).
2 See
Horry County v.
United States, 449 F. Supp.
990 (D. C. 1978) (statute providing for election of public
officials who were formerly appointed by Governor required
preclearance under § 5);
Hardy v.
Wallace, 603 F.
Supp. 174 (ND Ala. 1985) (statute changing appointive power over
local racing commission from local legislative delegation to
Governor required preclearance under § 5);
County Council of
Sumter County v.
United States, 555 F. Supp. 694 (D. C.
1983) (law that eliminated legal power of Governor and General
Assembly over local affairs and vested it in county council elected
at large by county voters required preclearance under § 5);
Robinson v.
Alabama State Dept. of Ed., 652 F. Supp.
484 (MD Ala. 1987) (transfer of authority from Board of Education
whose members were elected countywide to one whose members were
appointed by the city council required § 5 preclearance).
512
occasions since 1975,3 the Department of Justice has refused to
preclear changes in the power of elected officials that had a
potentially discriminatory4 impact on black voters. The Department
has routinely precleared numerous other transfers of authority
after determining that they had no discriminatory purpose or
effect.5 There is no evidence that the pre-
3 The Solicitor General has advised us that the Department has
objected to the following transfers of authority:
"(1) Mobile, Alabama, March 2, 1976, involving a transfer of
administrative duties from the entire commission to individual
commissioners; (2) Charleston, South Carolina, June 14, 1977,
involving a transfer of taxing authority from the legislative
delegation to the county council; (3) Edgefield County, South
Carolina, February 8, 1979, involving a transfer of increased
taxing power to the county council; (4) Colleton County, South
Carolina, September 4, 1979, involving a transfer of authority to
tax for school purposes from the legislative delegation to the
county council; (5) Brunswick and Blynn County, Georgia, August 16,
1982, involving the abolition of separate city and county
commissions and the transfer of their powers to a consolidated
commission; (6) Hillsborough County, Florida, August 29, 1984,
involving a transfer of power over municipalities from the
legislative delegation to the county commission (objection was
withdrawn because the county made clear that it did not intend to
effect such a transfer); (7) Waycross, Georgia, February 16, 1988,
involving a change in the duties of the mayor; and (8) San
Patricio, Texas, May 7, 1990, involving a transfer of voter
registration duties from the county clerk to the county tax
assessor." Brief for United States as
Amicus Curiae 16, n.
6.
4 Whether a change in "any ... standard, practice, or procedure
with respect to voting," 42 U. S. C. § 1973c, must be precleared
under § 5 depends, not on whether the change "resulted in
impairment of the right to vote, or whether [it was] intended to
have that effect," but rather, on "whether the challenged
alteration has the
potential for discrimination."
NAACP v.
Hampton County Election Comm'n, 470 U. S. 166, 181
(1985); see
McCain v.
Lybrand, 465 U. S. 236, 250, n. 17
(1984);
Dougherty County Ed. of Ed. v.
White,
439 U. S. 32, 42
(1978) (issue "is not whether the provision is in fact innocuous
and likely to be approved, but whether it has a
potential
for discrimination");
Georgia v.
United States,
411 U. S. 526,
534 (1973);
Perkins v.
Matthews, 400 U. S. 379, 383-385
(1971);
Allen
513
vailing practice imposed any special burden on covered
jurisdictions. For example, in this fiscal year the Attorney
General has processed over 17,000 preclearance requests, and has
approved over 99 percent of them without any undue delay.6 It is,
therefore, simply hyperbole for the Court to suggest that if we
adopted the Attorney General's position in this case "neither state
nor local governments could exercise power in a responsible manner
within a federal system."
Ante, at 507.7
6 Tr. of Oral Arg. 27. The Attorney General's percentage has
undergone little change even though the number of submissions has
increased over time. For example, when
Allen v.
State Ed.
of Elections, 393
U. S. 544 (1969), was decided, the Department of Justice had
received 251 submissions from States covered under § 5 and had
approved over 99 percent of the submissions.
Id., at 549, n.
5. Figures available in 1978 indicated that the Department
processed 1,800 submissions annually, and had approved over 98
percent of those submissions.
Dougherty County Ed. of Ed. v.
White, 439 U. S., at 41.
7 In the past, various Members of the Court have objected to the
types of changes that require preclearance under § 5 in covered
States, and have predicted that the Court's construction of the
statute would leave it without boundaries. In
Perkins v.
Matthews, for example, Justice Harlan expressed the view
that the Court was mistaken in holding that annexations are within
the scope of § 5 and that the Court had gone too far in its
interpretation of "with respect to voting": "Given a change with an
effect on voting, a set of circumstances may be conceived with
respect to almost any situation in which the change will bear more
heavily on one race than on another. In effect, therefore, the
Court requires submission of any change which has an effect on
voting." 400 U. S., at 398 (opinion concurring in part and
dissenting in part). Similarly, Justice Powell, taking the view in
Dougherty that a "personnel rule" should not fall within the
scope of § 5 as the Court had held, was concerned that "if the
Court truly means that any incidental impact on elections is
sufficient to trigger the preclearance requirement of § 5, then it
is difficult to imagine what sorts of state or local enactments
would
not fall within the scope of that section." 439 U. S.,
at 54 (dissenting opinion) (footnote omitted). The fears the Court
expresses today, see
ante, at 507, are no more likely to be
realized than those expressed by Justice Harlan and Justice Powell
years ago.
514
In all of our prior cases interpreting § 5 of the Voting Rights
Act, the Court has agreed with the Attorney General's construction
of this important statute.8 I share the Court's view that the
"considerable deference" to which the Attorney General's
construction is entitled 9 does not mean automatic "acquiescence,"
ante, at 508; however, I strongly disagree with the Court
that our task in these cases is "to formulate workable rules to
confine the coverage of § 5 to its legitimate sphere: voting."
Ante, at 506. For reasons that I shall explain, even if the
Attorney General, participating in these cases as
amicus
curiae, has asked the Court to adopt a broader rationale than
is necessary or appropriate, a narrower basis for a decision is
obviously available in the Etowah County case and, in my judgment,
in the Russell County case as well.
I
The original enactment of § 5, the interpretations of the Act by
this Court and by the Attorney General, and the reenactment of the
statute by Congress in light of those interpretations reveal a
continuous process of development in response to changing
conditions in the covered jurisdictions.
The central purpose of the original Act was to eliminate the
various devices, such as literacy tests, requirements of "good
moral character," vouchers, and poll taxes, that had excluded black
voters from the registration and voting process in the southern
States for decades.10 As we explained in
McCain v.
Lybrand, 465
U. S. 236 (1984):
8 See,
e. g., Perkins v.
Matthews, 400 U. S., at
390-391 ("Our conclusion that both the location of the polling
places and municipal boundary changes come within § 5 draws further
support from the interpretation followed by the Attorney General in
his administration of the statute");
United States v.
Sheffield Ed. of Comm'rs, 435 U. S. 110, 131
(1978);
Dougherty County Ed. of Ed. v.
White, 439 U.
S., at 39.
9 NAACP v. Hampton County Election Comm'n, 470 U. S., at
178-179. 10 "Tests or devices" include
"any requirement that a person as a prerequisite for voting or
registration for voting (1) demonstrate the ability to read, write,
understand, or inter-
515
"The Voting Rights Act of 1965, as amended, 42 U. S. C. § 1973
et seq. (1976 ed. and Supp. V), was enacted by Congress as a
response to the 'unremitting and ingenious defiance' of the command
of the Fifteenth Amendment for nearly a century by state officials
in certain parts of the Nation. South Carolina v.
Katzenbach, 383 U. S. 301, 309 (1966). Congress concluded
that case-bycase litigation under previous legislation was an
unsatisfactory method to uncover and remedy the systematic
discriminatory election practices in certain areas: such lawsuits
were too onerous and time-consuming to prepare, obstructionist
tactics by those determined to perpetuate discrimination yielded
unacceptable delay, and even successful lawsuits too often merely
resulted in a change in methods of discrimination. E. g., H. R.
Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided
'to shift the advantage of time and inertia from the perpetrators
of the evil to its victims,' 383 U. S., at 328, and enacted
'stringent new remedies' designed to 'banish the blight of racial
discrimination in voting' once and for all, id., at 308."
Id., at 243-244 (footnote omitted).
During the first few years after the enactment of § 5, the
federal courts gave its text a narrow literal construction that
confined its coverage to the political subdivisions that registered
voters and to the practices that directly concerned the
registration and voting process. Prior to the Court's decision in
Allen v.
State Bd. of Elections, 393 U. S. 544 (1969),
only three States submitted any changes to the Attorney General for
preclearance and a total of only 323 changes were
pret any matter, (2) demonstrate any educational achievement or
his knowledge of any particular subject, (3) possess good moral
character, or (4) prove his qualifications by the voucher of
registered voters or members of any other class." 42 U. S. C. §
1973b(c).
As this Court recognized in
South Carolina v.
Katzenbach, 383 U. S., at 330, "[tJests and devices are
relevant to voting discrimination because of their long history as
a tool for perpetrating the evil."
516
submitted during the first five years of administrationY At that
time, the covered jurisdictions were able to respond to the
increase in the number of black registered voters by means that
prevented the newly registered minority voters from having a
proportionate impact on the political process.
In
Allen and its companion cases,12 however, the Court
held that some of these responses, even if not described in the
literal text of the Act, were nevertheless included within the
scope of § 5. Relying heavily on the statutory definition of voting
as encompassing "'all action necessary to make a vote effective,'"
393 U. S., at 565-566, and the broad remedial purposes of the Act,
the Court held that a change from district to at-large voting for
county supervisors, a change that made an important county office
appointive rather than elective, and a change that altered the
requirements for independent candidates, were all covered voting
practices.
Id., at 569-571. Thus, § 5 was not limited to
changes directly affecting the casting of a ballot.
Id., at
569 ("The right to vote can be affected by a dilution of voting
power as well as by an absolute prohibition on casting a ballot.
See
Reynolds v.
Sims, 377 U. S. 533, 555
(1964)"). Nothing in
Allen implied that the Court had
defined an exhaustive category of changes covered by the Act.13 On
the contrary, the Court
11 See
United States v.
Sheffield Bd. of Comm'rs,
435 U. S., at 148, n. 10 (STEVENS, J., dissenting); see also U. S.
Commission on Civil Rights, The Voting Rights Act: Ten Years After,
p. 25, n. 53 (1975) ("In the first 6 years of the act, section 5
was hardly used at all").
12 Allen was argued along with
Fairley v.
Patterson, 393
U. S. 544 (1969) (§ 5 applied to a change from district to
at-large election of county supervisors),
Bunton v.
Patterson, 393
U. S. 544 (1969) (§ 5 applied to change in which the position
of county officer became appointive instead of elective), and
Whitley v.
Williams, 393 U. S. 544 (1969)
(changes aimed at increasing the difficulty for an independent
candidate to gain a position on a general election ballot were
subject to § 5), on appeal from the United States District Court
for the Southern District of Mississippi.
13 Although the majority today agrees that § 5 is not limited to
only the changes covered in our earlier opinions, see
ante,
at 502, it nevertheless attempts to fit today's changes into one of
the earlier models, see
ante, at
517
described § 5 as "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, and expressed,
in no uncertain terms, that § 5 should be given "the broadest
possible scope," id., at 567. Aware of the consequences of its
decision, the Court gave its broad reading of the Act "only
prospective effect."
Id., at 572.
The Court's construction of the Act in Allen, as requiring
preclearance of changes in covered jurisdictions that were
responsive to the increase in the number of black registered
voters,14 was consistent with the concern that justified the
extraordinary remedy set forth in § 5 itself, particularly the
concern that recalcitrant white majorities could be expected to
devise new stratagems to maintain their political power if not
closely scrutinized.
"The rationale of this 'uncommon exercise' of congressional
power which sustained its constitutional validity was a presumption
that jurisdictions which 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' would be likely to engage in
'similar maneuvers in the future in order to evade the remedies
503, 506-507. The Court's approach today marks a departure from
the approach we have taken in the past. For example, in NAACP v.
Hamp
ton County Election Comm'n, even though the Court
recognized that it had "never addressed itself to alterations in
voting procedures that exactly parallel those at issue in this
case," 470 U. S., at 176, it nevertheless concluded that § 5 was
broad enough to encompass a change in election date, id., at
182-183.
14 U. S. Commission on Civil Rights, The Voting Rights Act: Ten
Years After, at 69 ("The end of formal barriers brought about by
the Voting Rights Act resulted in an immediate increase in minority
registration"); H. R. Rep. No. 94-196, p. 6 (1975) ("Prior to 1965,
the black registration rate in the State of Alabama lagged behind
that of whites in that state by 49.9 percentage points. In 1972,
that disparity had decreased to 23.6 percentage points").
518
for voting discrimination contained in the Act itself.' South
Carolina v. Katzenbach, supra, at 334, 335 (footnote
omitted). This provision must, of course, be interpreted in light
of its prophylactic purpose and the historical experience which it
reflects. See, e. g., McDaniel v. Sanchez, 452 U. S. 130, 151
(1981)." McCain v. Lybrand, 465 U. S., at
245-246.
Thus, § 5 was understood to be "a 'vital element' of the Act,"
and was designed to be flexible enough to ensure that" 'new
subterfuges will be promptly discovered and enjoined.'"
Id.,
at 248 (citation omitted).15 Section 5, as construed by the Court,
was not limited to a "simple inventory of voting procedures," but
rather, was understood to address "the reality of changed practices
as they affect Negro voters."
Georgia v.
United
States, 411 U. S.
526, 531 (1973).
In subsequent cases, this Court has reaffirmed the broad scope
of § 5 coverage, as first articulated by the Court in
Allen.
16 The Court has interpreted § 5 expansively and has said in the
context of candidate qualification that a statute requiring
independent candidates to declare their intention to seek office
two months earlier than under the previous procedures created a
barrier to candidacy and required § 5 preclearance,
Hadnott
v.
Amos, 394
U. S. 358 (1969), and in other contexts, that preclearance is
required when there is a change in polling places,
Perkins
v.
Matthews, 400 U. S. 379 (1971), an
alteration in municipal boundaries,
City of Rich-
15 "[I]n modern-day voting rights cases such as this one, ...
racial discrimination will more than likely not show itself in the
blatant forms of the past but instead will be subtle and
sophisticated .... " App. to Juris. Statement of Appellant Presley
37a (Thompson, J., concurring in part and dissenting in part).
16 See
Dougherty County Ed. of Ed. v.
White, 439
U. S., at 38 ("In subsequent cases interpreting § 5, we have
consistently adhered to the principles of broad construction set
forth in
Allen"); NAACP v.
Hampton County Election
Comm'n, 470 U. S., at 176 ("Our precedents recognize that to
effectuate the congressional purpose, § 5 is to be given broad
scope").
519
mond v.
United States, 422 U. S. 358 (1975),
reapportionment and redistricting plans,
Georgia v.
United States, 411 U. S., at 532-533, and the introduction
of numbered posts and staggered terms,
Lockhart v.
United
States, 460 U. S.
125, 131, 132, 134-135 (1983).
The reenactment of § 5 in 1970, Pub. L. 91-285, 84 Stat.
314,17 in 1975, Pub. L. 94-73, 89 Stat. 400,18 and in 1982,
Pub. L. 97-205, 96 Stat. 131,19 reflected congressional approval of
Allen's broad interpretation of the Act. Indeed,
congressional comments quoted in our opinion in
Perkins v.
Matthews, supra, expressly endorsed an interpretation of § 5
that takes into account white resistance to progress in black
registration.
"One Congressman who had supported the 1965 Act observed, 'When
I voted for the Voting Rights Act of 1965, I hoped that 5 years
would be ample time. But resistance to progress has been more
subtle and more effective than I thought possible. A whole arsenal
of racist weapons has been perfected. Boundary lines have been
gerrymandered, elections have been switched to an at-large basis,
counties have been consolidated,
17"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."
Georgia v.
United
States, 411 U. S., at 533 (footnote omitted); see
Dougherty
County Ed. of Ed. v.
White, 439 U. S., at 38-39.
18"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." Dougherty, 439
U. S., at 39.
19"[T]he legislative history of the most recent extension of the
Voting Rights Act in 1982 reveals that the congressional commitment
to its continued enforcement is firm. The Senate Committee found
'virtual unanimity among those who [had] studied the record,' S.
Rep. No. 97-417, p. 9 (1982), that § 5 should be extended. And, as
it had in previous extensions of the Act, Congress specifically
endorsed a broad construction of the provision."
NAACP v.
Hampton County Election Comm'n, 470 U. S., at 176 (footnote
omitted).
520
elective offices have been abolished where blacks had a chance
of winning, the appointment process has been substituted for the
elective process, election officials have withheld the necessary
information for voting or running for office, and both physical and
economic intimidation have been employed.
"'Section 5 was intended to prevent the use of most of these
devices.'" 400 U. S., at 389, n. 8.20
Since the decision in Allen, the debate on reenactment of § 5 in
1970, and the issuance of regulations by the Department of
Justice,21 it has been recognized that the replacement of an
elective office that might be won by a black candidate with an
appointive office is one of the methods of maintaining a white
majority's political power that § 5 was designed to forestall. As a
practical matter, such a change has the same effect as a change
that makes an elected official a mere figurehead by transferring
his decisionmaking authority to an
20 Congress recognized that "since the adoption of the Voting
Rights Act, covered jurisdictions have substantially moved from
direct, over[t] impediments to the right to vote to more
sophisticated devices that dilute minority voting strength," S.
Rep. No. 97-417, p. 10 (1982), and that §5 was intended to be
responsive to this shift:
"Following the dramatic rise in registration, a broad array of
dilution schemes were employed to cancel the impact of the new
black vote. Elective posts were made appointive; election
boundaries were gerrymandered; majority runoffs were instituted to
prevent victories under a prior plurality system; at-large
elections were substituted for election by singlemember districts,
or combined with other sophisticated rules to prevent an effective
minority vote. The ingenuity of such schemes seems endless. Their
common purpose and effect has been to offset the gains made at the
ballot box under the Act.
"Congress anticipated this response. The preclearance provisions
of Section 5 were designed to halt such efforts."
Id., at
6.
210n September 10, 1971, the Department of Justice first adopted
regulations implementing § 5's preclearance provisions. S. Rep. No.
94-295, p. 16 (1975); see 36 Fed. Reg. 18186 (Sept. 10, 1971); 28
CFR pt. 51 (1972); see also
Georgia v.
United States,
411 U. S., at 536-541 (approving regulations).
521
appointed official, or to a group of elected officials
controlled by the majority. Although this type of response to
burgeoning black registration may not have been prevalent during
the early history of the Act, it has been an active concern of the
Attorney General since 1976. See n. 3,
supra. In my
judgment, such a change in the reallocation of decisionmaking
authority in an elective office, at least in its most blatant form,
is indistinguishable from, and just as unacceptable as,
gerrymandering boundary lines or switching elections from a
district to an at-large basis.
II
The two resolutions adopted by the Etowah County Commission on
August 25, 1987, less than nine months after the county's first
black commissioner took office, were an obvious response to the
redistricting of the county that produced a majority black district
from which a black commissioner was elected. In my view, it was
wrong for the District Court to divorce the two parts of this
consolidated response and to analyze the two resolutions
separately.22 The characteriza-
22 The District Court was also wrong to exempt the Common Fund
Resolution from § 5 preclearance on the ground that "the common
fund resolution was, in practical terms, insignificant in
comparison to the entire Commission's authority .... " App. to
Juris. Statement of Appellant Presley 19a. This is clearly the
wrong test in light of our earlier cases, in which we have said
that even "minor" changes affecting elections and voting must be
precleared.
Allen v.
State Ed. of Elections, 393 U.
S., at 566, 568 ("It is significant that Congress chose not to
include even ... minor exceptions in § 5, thus indicating an
intention that all changes, no matter how small, be subjected to §
5 scrutiny"); see also
Perkins v.
Matthews, 400 U.
S., at 387. For example, the Court has said that § 5 preclearance
applies to the transfer of a polling place, id., at 388, and the
extension of city limits to include uninhabited territory,
Pleasant Grove v.
United States, 479 U. S. 462,467 (1987),
even though these changes might, at first blush, appear to be
"insignificant." The District Court mistakenly blurred the
distinction between whether a change is subject to preclearance,
which turns on whether the change has the potential for
discrimination, and whether the change should, in fact, be
precleared, which turns on whether
522
tion of the Road Supervision Resolution as a change with a
"potential for discrimination" that was "blatant and obvious," App.
to Juris. Statement of Appellant Presley 20a, and that should be
enjoined unless subjected to § 5 preclearance, id., at 21a, 23a,
applies equally to the Common Fund Resolution. Both resolutions
diminished the decisionmaking authority of the newly elected black
commissioner, and both were passed on the same day and in response
to the districting changes effected by the consent decree.23
the change would have a discriminatory purpose or effect. The
distinction is important because "[t]he discriminatory potential in
seemingly innocent or insignificant changes can only be determined
after the specific facts of the change are analyzed in context. The
present coverage formula allows for such a factual analysis."
Hearings on Extension of the Voting Rights Act before the
Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 97th Cong., 1st Sess., 2122 (1981)
(testimony of Drew Days, Professor, Yale Law School and former U.
S. Assistant Attorney General, Civil Rights Division, Department of
Justice); see H. R. Rep. No. 97-227, p. 35 (1981);
NAACP v.
Hampton County Election Comm'n, 470 U. S., at 176, n.
21.
23 The District Court approved a consent decree that provided,
inter alia, for an increase in the number of Etowah County
Commissioners in order to remedy the unlawful dilution of black
voting strength caused by the prior at-large election system. See
Dillard v.
Crenshaw County, Civ. Action No.
85-T-1332-N (MD Ala., Nov. 12, 1986);
ante, at 496. The
decree expanded the Commission to six members, all of whom would
eventually be elected from single-member districts. See App. to
Juris. Statement of Appellant Presley 5a. The consent decree
specified that the commissioners elected in 1986 were to have the
same duties as the four holdover commissioners.
Ibid.
(decree provided that the two new commissioners" 'shall have all
the rights, privileges, duties and immunities of the other
commissioners, who have heretofore been elected at large' "). In
August 1987, however, the commission passed the Road Supervision
Resolution, which authorized the four holdover commissioners to
continue to exercise authority over road operations in their
districts, but which assigned nonroad duties to the two new
commissioners.
Id., at 6a. On the same day, the same
commission adopted a second resolution, the Common Fund Resolution,
which abolished the practice of allocating road funds to districts
and created a common fund, thus transferring authority for
determining funding priorities from the individual commissioners
to
523
At the very least, I would hold that the reallocation of
decisionmaking authority of an elective office that is taken (1)
after the victory of a black candidate, and (2) after the entry of
a consent decree designed to give black voters an opportunity to
have representation on an elective body, is covered by § 5.
Similar considerations supported the Court's decision in
Dougherty County Bd. of Ed. v.
White, 439 U. S. 32 (1978).
Dougherty involved a rule requiring an employee of the
school system to take a leave of absence while running for, or
holding, a public office. The Court recognized that the rule in
question operated in effect as a filing fee, hitting hardest those
who were least able to afford it, and that it implicated the
political process to the same extent as had changes in the location
of polling places,
Perkins v.
Matthews, 400 U. S. 379 (1971), and
alterations in the procedures for casting a write-in vote,
Allen v.
State Bd. of Elections, 393 U. S. 544 (1969). The
Dougherty Court also observed that the circumstances
surrounding the rule's adoption were "sufficiently suggestive of
the potential for discrimination to demonstrate the need for
preclearance." 439 U. S., at 42. The rule had been adopted by an
area with a long history of racial discrimination in voting, after
the first black to seek public office announced his candidacy.
Ibid. In the Etowah County case, as in
Dougherty, the
circumstances surrounding the adoption of the resolutions are
similarly suggestive of the potential for discrimination and should
require § 5 preclearance.
the entire commission.
Id., at 6a-7a. However, the Common
Fund Resolution contained a grandfather clause that permitted each
holdover commissioner to maintain control over unspent funds for
the 1986-1987 fiscal years, and a provision that required all
1987-1988 road maintenance to be done out of the" 'four present
road shops.'''
Id., at 29a. Thus, the Common Fund
Resolution, when combined with the Road Supervision Resolution,
which gave the four holdover commissioners exclusive control over
the road shops, meant that the four holdover commissioners could
effectively have complete control over all road and bridge
funds.
524
Although the test I propose here may not adequately implement §
5, it would certainly provide a workable rule that would result in
the correct disposition of this case without opening the Pandora's
box that the Court seems to fear.24
III
The record indicates that the resolution challenged in the
Russell County case may well have had a nondiscriminatory,
anticorruption purpose.25 It would not be covered by the narrow
standard that I have proposed as a "workable rule" for deciding the
Etowah County case. I would, however, adopt a broader standard that
would require preclearance in this case as well. The proper test, I
believe, is suggested by the examples of resistance to the increase
in black registration that were noted in our opinion in
Perkins v.
Matthews, supra.26
24 The Court is strangely silent about the first half of the
Etowah County majority's response to the election of Commissioner
Presley. The logic of its analysis would lead to the conclusion
that even the Road Supervision Resolution is not covered by § 5,
but one cannot be sure because the Court recognizes that an
otherwise uncovered enactment "might under some circumstances rise
to the level of a
de facto replacement of an elective office
with an appointive one."
Ante, at 508. Despite the Court's
overriding interest in formulating "workable rules to confine the
coverage of § 5 to its legitimate sphere,"
ante, at 506, the
scope of that exception must await future cases.
25 According to one judge on the three-judge District Court, the
change "was adopted to eliminate a practice that had proved
inefficient and conducive to abuses ... [and] eventually resulted
in a criminal indictment of one of the commissioners." App. to
Juris. Statement of Appellant Presley 25a (Hobbs, J.,
concurring).
26 In addition to the comment by Congressman McCulloch quoted,
supra, at 519-520, the Court also quoted from a then recent study
of the operation of the Voting Rights Act by the United States
Civil Rights Commission, as follows:
"'The history of white domination in the South has been one of
adaptiveness, and the passage of the Voting Rights Acts and the
increased black
525
Changes from district voting to at-large voting, the
gerrymandering of district boundary lines, and the replacement of
an elected official with an appointed official all share the
characteristic of enhancing the power of the majority over a
segment of the political community that might otherwise be
adequately represented. A resolution that reallocates
decisionmaking power by transferring authority from an elected
district representative to an official, or a group, controlled by
the majority, has the same potential for discrimination against the
constituents in the disadvantaged districts.27 The Russell County
Resolution satisfies that test, and therefore, like both Etowah
County Resolutions, should have been precleared. To hold otherwise,
as the Court does today, leaves covered States free to evade the
requirements of § 5, and to undermine the purpose of the Act,
simply by transferring the authority of an elected official, who
happens to be black, to another official or group controlled by the
majority.
The Court today rejects the Attorney General's position that
transfers of authority are covered under § 5 when "they
registration that followed has resulted in new methods to
maintain white control of the political process.
"'For example, State legislatures and political party committees
in Alabama and Mississippi have adopted laws or rules since the
passage of the act which have had the purpose or effect of diluting
the votes of newly enfranchised Negro voters. These measures have
taken the form of switching to at-large elections where Negro
voting strength is concentrated in particular election districts,
facilitating the consolidation of predominantly Negro and
predominantly white counties, and redrawing the lines of districts
to divide concentrations of Negro voting strength.'''
Perkins v.
Matthews, 400 U. S., at 389.
27 In Russell County, the voters continue to elect county
commissioners, but the most significant power previously held by
those commissioners has been shifted to the county engineer, who is
appointed by the Commission. The effect of this change, as in
Bunton v.
Patterson, 393 U. S., at 550-551 (change in
which office is made appointive rather than elective is subject to
§5 preclearance), and
McCain v.
Lybrand, 465 U. S.,
at 250, n. 17, was less power for the voters over local
affairs.
526
implicate the decisionmaking authority of elected officials."
Ante, at 509. It does so because it fears that such a rule
creates line-drawing problems and moves too far afield from
"voting." Whether or not the rationale advocated by the Attorney
General in this case is appropriate, his judgment concerning the
proper disposition of these two cases is unquestionably
correct.
I would therefore reverse in both cases.
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