OCTOBER TERM, 1996
Syllabus
RENO, ATTORNEY GENERAL
v. BOSSIER PARISH SCHOOL BOARD ET
AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 95-1455. Argued December 9, 1996-Decided May 12, 1997*
Appellee Bossier Parish School Board (Board) is subject to the
preclearance requirements of § 5 of the Voting Rights Act of 1965
(Act) and must therefore obtain the approval of either the United
States Attorney General or the United States District Court for the
District of Columbia before implementing any changes to a voting
"qualification, prerequisite, standard, practice, or procedure."
Based on the 1990 census, the Board redrew its 12 single-member
districts, adopting the redistricting plan that the Attorney
General had recently pre cleared for use in elections of the
parish's primary governing body (the Jury plan). In doing so, the
Board rejected a plan proposed by the National Association for the
Advancement of Colored People (NAACP), which would have created two
majority-black districts. The Attorney General objected to
preclearance, finding that the NAACP plan, which had not been
available when the Jury plan was originally approved, demonstrated
that black residents were sufficiently numerous and geographically
compact to constitute a majority in two districts; that, compared
with this alternative, the Board's plan unnecessarily limited the
opportunity for minority voters to elect their candidates of choice
and thereby diluted their voting strength in violation of § 2 of
the Act; and that the Attorney General must withhold preclearance
where necessary to prevent a clear § 2 violation. The Board then
filed this action with the District Court, and appellant Price and
others intervened as defendants. A three-judge panel granted the
preclearance request, rejecting appellants' contention that a
voting change's failure to satisfy § 2 constituted an independent
reason to deny preclearance under § 5 and their related argument
that a court must still consider evidence of a § 2 violation as
evidence of discriminatory purpose under § 5.
Held:
1. Preclearance under § 5 may not be denied solely on the basis
that a covered jurisdiction's new voting "standard, practice, or
procedure" violates § 2. This Court has consistently understood § 5
and § 2 to com-
*Together with No. 95-1508,
Price et al. v.
Bossier
Parish School Board et al., also on appeal from the same
court.
472
Syllabus
bat different evils and, accordingly, to impose very different
duties upon the States. See
Holder v.
Hall, 512 U. S. 874, 883
(plurality opinion). Section 5 freezes election procedures in a
covered jurisdiction until that jurisdiction proves that its
proposed changes do not have the purpose, and will not have the
effect, of denying or abridging the right to vote on account of
race. See
Beer v.
United States, 425 U. S. 130, 140. It is
designed to combat only those effects that are retrogressive.
Retrogression, by definition, requires a comparison of a
jurisdiction's new voting plan with its existing plan, see
Holder, supra, at 883 (plurality opinion), and necessarily
implies that the jurisdiction's existing plan is the benchmark
against which the "effect" of voting changes is measured. Section
2, on the other hand, applies in
all jurisdictions and uses
as its benchmark for comparison in vote dilution claims a
hypothetical, undiluted plan. Making compliance with § 5 contingent
upon compliance with § 2, as appellants urge, would, for all
intents and purposes, replace the standards for § 5 with those for
§ 2, thus contradicting more than 20 years of precedent
interpreting § 5. See,
e. g., Beer, supra. Appellants'
contentions that their reading of § 5 is supported by the
Beer decision, by the Attorney General's regulations, and by
public policy considerations are rejected. Pp. 476-485.
2. Evidence showing that a jurisdiction's redistricting plan
dilutes minorities' voting power may be relevant to establish a
jurisdiction's "intent to retrogress" under § 5, so there is no
need to decide today whether such evidence is relevant to establish
other types of discriminatory intent or whether § 5's purpose
inquiry ever extends beyond the search for retrogressive intent.
Because this Court cannot say with confidence that the District
Court considered the evidence proffered to show that the Board's
reapportionment plan was dilutive, this aspect of that court's
holding must be vacated. Pp. 486-490.
(a) Section 2 evidence may be "relevant" within the meaning of
Federal Rule of Evidence 401, for the fact that a plan has a
dilutive impact makes it "more probable" that the jurisdiction
adopting that plan acted with an intent to retrogress than "it
would be without the evidence." This does not, of course, mean that
evidence of a plan's dilutive impact is dispositive of the § 5
purpose inquiry. Indeed, if it were, § 2 would be effectively
incorporated into § 5, a result this Court finds unsatisfactory. In
conducting their inquiry into a jurisdiction's motivation in
enacting voting changes, courts should look for guidance to
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S.
252, which sets forth a framework for examining discriminatory
purpose. pp.486-489.
(b) This Court is unable to determine whether the District Court
deemed irrelevant all evidence of the dilutive impact of the
redistricting
473
plan adopted by the Board. While some language in its opinion is
consistent with today's holding that the existence of less dilutive
options was at least relevant to the purpose inquiry, the District
Court also appears to have endorsed the notion that dilutive impact
evidence is irrelevant even to an inquiry into retrogressive
intent. The District Court will have the opportunity to apply the
Arlington Heights test on remand as well as to address
appellants' additional arguments that it erred in refusing to
consider evidence that the Board was in violation of an ongoing
injunction to remedy any remaining vestiges of a dual school
system. Pp. 489-490.
907 F. Supp. 434, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined in
full, and in which GINSBURG and BREYER, JJ., joined except insofar
as Part III is inconsistent with the views expressed in the
concurrence of BREYER, J. THOMAS, J., filed a concurring opinion,
post, p. 490. BREYER, J., filed an opinion concurring in
part and concurring in the judgment, in which GINSBURG, J., joined,
post, p. 493. STEVENS, J., filed an opinion dissenting in
part and concurring in part, in which SOUTER, J., joined,
post, p. 497.
Assistant Attorney General Patrick argued the cause for
appellant in No. 95-1455. With him on the briefs were Acting
Solicitor General Dellinger, Deputy Solicitor General Bender,
Cornelia T. L. Pillard, David K. Flynn, and Steven H. Rosenbaum.
John W Borkowski argued the cause for appellants in No. 95-1508.
With him on the briefs were Walter A. Smith, Jr., Patricia A.
Brannan, Barbara R. Arnwine, Thomas
J. Henderson, Brenda
Wright, and Samuel L. Walters.
Michael A. Carvin argued the cause for appellee Bossier
Parish School Board in both cases. With him on the brief were
David H. Thompson, James J. Thornton, and
Michael p. McDonald. t
tLaughlin McDonald, Neil Bradley, Steven R. Shapiro, Elaine
R.
Jones, Norman J. Chachkin, and
Jacqueline Berrien filed a brief for the American Civil
Liberties Union et al. as
amici curiae urging reversal.
Sharon L. Browne and
Deborah J. La
Fetra filed a brief for the Pacific Legal Foundation as
amicus curiae urging affirmance.
474
JUSTICE O'CONNOR delivered the opinion of the Court. Today we
clarify the relationship between § 2 and § 5 of the Voting Rights
Act of 1965, 79 Stat. 437, 439, as amended, 42 U. S. C. §§ 1973,
1973c. Specifically, we decide two questions: (i) whether
preclearance must be denied under § 5 whenever a covered
jurisdiction's new voting "standard, practice, or procedure"
violates § 2; and (ii) whether evidence that a new "standard,
practice, or procedure" has a dilutive impact is always irrelevant
to the inquiry whether the covered jurisdiction acted with "the
purpose ... of denying or abridging the right to vote on account of
race or color" under § 5. We answer both in the negative.
I
Appellee Bossier Parish School Board (Board) is a jurisdiction
subject to the preclearance requirements of § 5 of the Voting
Rights Act of 1965, 42 U. S. C. § 1973c, and must therefore obtain
the approval of either the United States Attorney General or the
United States District Court for the District of Columbia before
implementing any changes to a voting "qualification, prerequisite,
standard, practice, or procedure." The Board has 12 members who are
elected from single-member districts by majority vote to serve
4-year terms. When the 1990 census revealed wide population
disparities among its districts, see App. to Juris. Statement 93a
(Stipulations of Fact and Law , 82), the Board decided to redraw
the districts to equalize the population distribution.
During this process, the Board considered two redistricting
plans. It considered, and initially rejected, the redistricting
plan that had been recently adopted by the Bossier Parish Police
Jury, the parish's primary governing body (the Jury plan), to
govern its own elections. Just months before, the Attorney General
had precleared the Jury plan, which also contained 12 districts.
Id., at 88a (Stipulations' 68). None of the 12 districts in
the Board's existing plan or in the Jury plan contained a majority
of black residents.
Id., at
475
93a (Stipulations , 82) (under 1990 population statistics in the
Board's existing districts, the three districts with highest black
concentrations contain 46.63%, 43.79%, and 30.13% black residents,
respectively);
id., at 85a (Stipulations' 59) (population
statistics for the Jury plan, with none of the plan's 12 districts
containing a black majority). Because the Board's adoption of the
Jury plan would have maintained the status quo regarding the number
of black-majority districts, the parties stipulated that the Jury
plan was not "retrogressive."
Id., at 141a (Stipulations'
252) ("The ... plan is not retrogressive to minority voting
strength compared to the existing benchmark plan ... "). Appellant
George Price, president of the local chapter of the National
Association for the Advancement of Colored People (NAACP),
presented the Board with a second option-a plan that created two
districts each containing not only a majority of black residents,
but a majority of voting-age black residents.
Id., at 98a
(Stipulations , 98). Over vocal opposition from local residents,
black and white alike, the Board voted to adopt the Jury plan as
its own, reasoning that the Jury plan would almost certainly be
precleared again and that the NAACP plan would require the Board to
split 46 electoral precincts.
But the Board's hopes for rapid preclearance were dashed when
the Attorney General interposed a formal objection to the Board's
plan on the basis of "new information" not available when the
Justice Department had precleared the plan for the Police
Jury-namely, the NAACP's plan, which demonstrated that "black
residents are sufficiently numerous and geographically compact so
as to constitute a majority in two single-member districts."
Id., at 155a-156a (Attorney General's August 30, 1993,
objection letter). The objection letter asserted that the Board's
plan violated § 2 of the Act, 42 U. S. C. § 1973, because it
"unnecessarily limit[ed] the opportunity for minority voters to
elect their candidates of choice," App. to Juris. Statement, at
156a, as compared to the new alternative. Relying on 28 CFR §
51.55(b)(2) (1996), which
476
provides that the Attorney General shall withhold preclearance
where "necessary to prevent a clear violation of amended Section 2
[42 U. S. C. § 1973]," the Attorney General concluded that the
Board's redistricting plan warranted a denial of preclearance under
§ 5. App. to Juris. Statement 157a. The Attorney General declined
to reconsider the decision.
Ibid.
The Board then filed this action seeking preclearance under § 5
in the District Court for the District of Columbia. Appellant Price
and others intervened as defendants. The three-judge panel granted
the Board's request for preclearance, over the dissent of one
judge. 907 F. Supp. 434, 437 (1995). The District Court squarely
rejected the appellants' contention that a voting change's alleged
failure to satisfy § 2 constituted an independent reason to deny
preclearance under § 5: "We hold, as has every court that has
considered the question, that a political subdivision that does not
violate either the 'effect' or the 'purpose' prong of section 5
cannot be denied preclearance because of an alleged section 2
violation."
Id., at 440-441. Given this holding, the
District Court quite properly expressed no opinion on whether the
Jury plan in fact violated § 2, and its refusal to reach out and
decide the issue in dicta does not require us, as JUSTICE STEVENS
insists, to "assume that the record discloses a 'clear violation'
of § 2." See
post, at 499 (opinion dissenting in part and
concurring in part). That issue has yet to be decided by any court.
The District Court did, however, reject appellants' related
argument that a court "must still consider evidence of a section 2
violation as evidence of discriminatory purpose under section 5."
Id., at 445. We noted probable jurisdiction on June 3, 1996.
517 U. S. 1232.
II
The Voting Rights Act of 1965 (Act), 42 U. S. C. § 1973
et seq., was enacted by Congress in 1964 to "attac[k] the
blight of voting discrimination" across the Nation. S. Rep. No.
97-
477
417, 2d Sess., p. 4 (1982);
South Carolina v.
Katzenbach, 383 U. S. 301, 308 (1966). Two of the weapons in
the Federal Government's formidable arsenal are § 5 and § 2 of the
Act. Although we have consistently understood these sections to
combat different evils and, accordingly, to impose very different
duties upon the States, see
Holder v.
Hall, 512 U. S. 874, 883 (1994)
(plurality opinion) (noting how the two sections "differ in
structure, purpose, and application"), appellants nevertheless ask
us to hold that a violation of § 2 is an independent reason to deny
preclearance under § 5. Unlike JUSTICE STEVENS,
post, at
502-503, and n. 5 (opinion dissenting in part and concurring in
part), we entertain little doubt that the Department of Justice or
other litigants would "routinely" attempt to avail themselves of
this new reason for denying preclearance, so that recognizing § 2
violations as a basis for denying § 5 preclearance would inevitably
make compliance with § 5 contingent upon compliance with § 2. Doing
so would, for all intents and purposes, replace the standards for §
5 with those for § 2. Because this would contradict our
longstanding interpretation of these two sections of the Act, we
reject appellants' position.
Section 5, 42 U. S. C. § 1973c, 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, as the Supreme Court held it
could, 'to shift the advantage of time and inertia from the
perpetrators of the evil to its victim,' by 'freezing election
procedures in the covered areas unless the changes can be shown to
be nondiscriminatory.'" Beer v. United States,
425 U. S. 130,
140 (1976) (quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)).
In light of this limited purpose, § 5 applies only to certain
States and their political subdivisions. Such a covered ju-
478
risdiction may not implement any change in a voting
"qualification, prerequisite, standard, practice, or procedure"
unless it first obtains either administrative preclearance of that
change from the Attorney General or judicial preclearance from the
District Court for the District of Columbia. 42 U. S. C. § 1973c.
To obtain judicial preclearance, the jurisdiction bears the burden
of proving that the change "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."
Ibid.; City of Rome v.
United
States, 446 U. S.
156, 183, n. 18 (1980) (covered jurisdiction bears burden of
proof). Because § 5 focuses on "freez[ing] election procedures," a
plan has an impermissible "effect" under § 5 only if it "would lead
to a retrogression in the position of racial minorities with
respect to their effective exercise of the electoral franchise."
Beer, supra, at 141.
Retrogression, by definition, requires a comparison of a
jurisdiction's new voting plan with its existing plan. See
Holder, supra, at 883 (plurality opinion) ("Under § 5, then,
the proposed voting practice is measured against the existing
voting practice to determine whether retrogression would result
from the proposed change"). It also necessarily implies that the
jurisdiction's existing plan is the benchmark against which the
"effect" of voting changes is measured. In
Beer, for
example, we concluded that the city of New Orleans' reapportionment
of its council districts, which created one district with a
majority of voting-age blacks where before there had been none, had
no discriminatory "effect." 425 U. S., at 141-142 ("It is thus
apparent that a legislative reapportionment that enhances the
position of racial minorities with respect to their effective
exercise of the electoral franchise can hardly have the 'effect' of
diluting or abridging the right to vote on account of race within
the meaning of § 5"). Likewise, in
City of Lockhart v.
United States, 460 U. S. 125 (1983), we
found that the city's new charter had no retrogressive "effect"
even though it maintained
479
the city's prior practice of electing its council members
atlarge from numbered posts, and instituted a new practice of
electing two of the city's four council members every year (instead
of electing all the council members every two years). While each
practice could "have a discriminatory effect under some
circumstances,"
id., at 135, the fact remained that "[s]ince
the new plan did not
increase the degree of discrimination
against [the city's Mexican-American population], it was entitled
to § 5 preclearance [because it was not retrogressive],"
id., at 134 (emphasis added).
Section 2, on the other hand, was designed as a means of
eradicating voting practices that "minimize or cancel out the
voting strength and political effectiveness of minority groups," S.
Rep. No. 97-417, at 28. Under this broader mandate, § 2 bars
all States and their political subdivisions from maintaining
any voting "standard, practice, or procedure" that "results in a
denial or abridgement of the right ... to vote on account of race
or color." 42 U. S. C. § 1973(a). A voting practice is
impermissibly dilutive within the meaning of §2
"if, based on the totality of the circumstances, it is shown
that the political processes leading to nomination or election in
the State or political subdivision are not equally open to
participation by [members of a class defined by race or color] in
that its members have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice." 42 U. S. C. § 1973(b).
A plaintiff claiming vote dilution under § 2 must initially
establish that: (i) "[the racial group] is sufficiently large and
geographically compact to constitute a majority in a singlemember
district"; (ii) the group is "politically cohesive"; and (iii) "the
white majority votes sufficiently as a bloc to enable it ...
usually to defeat the minority's preferred candidate."
480
Thornburg v.
Gingles, 478 U. S. 30, 50-51
(1986);
Growe v.
Emison, 507 U. S. 25, 40 (1993).
The plaintiff must also demonstrate that the totality of the
circumstances supports a finding that the voting scheme is
dilutive.
Johnson v.
De Grandy, 512 U. S. 997, 1011
(1994); see
Gingles, supra, at 44-45 (listing factors to be
considered by a court in assessing the totality of the
circumstances). Because the very concept of vote dilution
implies-and, indeed, necessitates-the existence of an "undiluted"
practice against which the fact of dilution may be measured, a § 2
plaintiff must also postulate a reasonable alternative voting
practice to serve as the benchmark "undiluted" voting practice.
Holder v.
Hall, 512 U. S., at 881 (plurality
opinion);
id., at 950-951 (Blackmun, J., dissenting).
Appellants contend that preclearance must be denied under § 5
whenever a covered jurisdiction's redistricting plan violates § 2.
The upshot of this position is to shift the focus of § 5 from
nonretrogression to vote dilution, and to change the § 5 benchmark
from a jurisdiction's existing plan to a hypothetical, undiluted
plan.
But § 5, we have held, is designed to combat only those effects
that are retrogressive. See
supra, at 477-479. To adopt
appellants' position, we would have to call into question more than
20 years of precedent interpreting § 5. See,
e. g., Beer, supra;
City of Lockhart, supra. This we decline to do. Section 5
already imposes upon a covered jurisdiction the difficult burden of
proving the
absence of discriminatory purpose and effect.
See,
e. g., Elkins v.
United States, 364 U. S. 206,
219 (1960) ("[A]s a practical matter it is never easy to prove a
negative"). To require a jurisdiction to litigate whether its
proposed redistricting plan also has a dilutive "result" before it
can implement that plan-even if the Attorney General bears the
burden of proving that "result" -is to increase further the serious
federalism costs already implicated by § 5. See
Miller v.
Johnson, 515
U. S. 900, 926 (1995) (noting the "federalism costs exacted by
§ 5 preclearance").
481
Appellants nevertheless contend that we should adopt their
reading of § 5 because it is supported by our decision in
Beer, by the Attorney General's regulations, and by
considerations of public policy. In
Beer, we held that § 5
prohibited only retrogressive effects and further observed that "an
ameliorative new legislative apportionment cannot violate § 5
unless the new apportionment itself so discriminates on the basis
of race or color as to violate the Constitution." 425 U. S., at
141. Although there had been no allegation that the redistricting
plan in
Beer "so ... discriminate[d] on the basis of race or
color as to be unconstitutional," we cited in dicta a few cases to
illustrate when a redistricting plan might be found to be
constitutionally offensive.
Id., at 142, n. 14. Among them
was our decision in
White v.
Regester, 412 U. S. 755 (1973), in
which we sustained a vote dilution challenge, brought under the
Equal Protection Clause, to the use of multimember election
districts in two Texas counties. Appellants argue that "[b]ecause
vote dilution standards under the Constitution and Section 2 were
generally coextensive at the time
Beer was decided,
Beer's discussion meant that practices that violated Section
2 would not be entitled to preclearance under Section 5." Brief for
Federal Appellant 36-37.
Even assuming,
arguendo, that appellants' argument had
some support in 1976, it is no longer valid today because the
applicable statutory and constitutional standards have changed.
Since 1980, a plaintiff bringing a constitutional vote dilution
challenge, whether under the Fourteenth or Fifteenth Amendment, has
been required to establish that the State or political subdivision
acted with a discriminatory purpose. See
Mobile v.
Bolden, 446 U.
S. 55, 62 (1980) (plurality opinion) ("Our decisions ... have
made clear that action by a State that is racially neutral on its
face violates the Fifteenth Amendment only if motivated by a
discriminatory purpose");
id., at 66 ("[O]nly if there is
purposeful discrimination can there be a violation of the Equal
Protection
482
Clause of the Fourteenth Amendment"); see also
Arlington
Heights v.
Metropolitan Housing Development Corp.,
429 U. S. 252,
265 (1977) ("Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause"). When
Congress amended § 2 in 1982, it clearly expressed its desire that
§ 2
not have an intent component, see S. Rep. No. 97-417, at
2 ("Th[e 1982] amendment is designed to make clear that proof of
discriminatory intent is not required to establish a violation of
Section 2"). Because now the Constitution requires a showing of
intent that § 2 does not, a violation of § 2 is no longer
a
fortiori a violation of the Constitution. Congress itself has
acknowledged this fact. See
id., at 39 ("The Voting Rights
Act is the best example of Congress' power to enact implementing
legislation that goes beyond the direct prohibitions of the
Constitution itself").
JUSTICE STEVENS argues that the subsequent divergence of
constitutional and statutory standards is of no moment because, in
his view, we "did not [in
Beer] purport to distinguish
between challenges brought under the Constitution and those brought
under the [Voting Rights] statute."
Post, at 504 (opinion
dissenting in part and concurring in part). Our citation to
White, he posits, incorporated
White's standard into
our exception for nonretrogressive apportionments that violate § 5,
whether or not that standard continued to coincide with the
constitutional standard. In essence, JusTICE STEVENS reads
Beer as creating an exception for nonretrogressive
apportionments that so discriminate on the basis of race or color
as to violate any federal law that happens to coincide with what
would have amounted to a constitutional violation in 1976. But this
reading flatly contradicts the plain language of the exception we
recognized, which applies solely to apportionments that "so
discriminat[e] on the basis of race or color as to violate
the
Constitution." Beer, supra, at 141 (emphasis added). We cited
White, not for itself, but because it embodied the
current
483
constitutional standard for a violation of the Equal
Protection Clause. See also 425 U. S., at 143, n. 14 (noting that
New Orleans' plan did "not remotely approach a violation of the
constitutional standards enunciated in"
White and
other cited cases (emphasis added)). When
White ceased to
represent the current understanding of the Constitution, a
violation of its standard-even though that standard was later
incorporated in § 2-no longer constituted grounds for denial of
preclearance under
Beer.
Appellants' next claim is that we must defer to the Attorney
General's regulations interpreting the Act, one of which
states:
"In those instances in which the Attorney General concludes
that, as proposed, the submitted change is free of discriminatory
purpose and retrogressive effect, but also concludes that a bar to
implementation of the change is necessary to prevent a clear
violation of amended Section 2, the Attorney General shall withhold
Section 5 preclearance." 28 CFR § 51.55(b)(2) (1996).
Although we normally accord the Attorney General's construction
of the Act great deference, "we only do so if Congress has not
expressed its intent with respect to the question, and then only if
the administrative interpretation is reasonable."
Presley v.
Etowah County Comm'n, 502 U. S. 491, 508
(1992). Given our longstanding interpretation of § 5, see
supra, at 477-479,480-482 and this page, which Congress has
declined to alter by amending the language of § 5,
Arkansas Best
Corp. v.
Commissioner, 485 U. S. 212, 222, n. 7
(1988) (placing some weight on Congress' failure to express
disfavor with our 25-year interpretation of a tax statute), we
believe Congress has made it sufficiently clear that a violation of
§ 2 is not grounds in and of itself for denying preclearance under
§ 5. That there may be some suggestion to the contrary in the
Senate Report to the 1982 Voting Rights Act amendments, S. Rep. No.
97-417,
supra, at 12, n. 31, does not
484
change our view. With those amendments, Congress, among other
things, renewed § 5 but did so without changing its applicable
standard. We doubt that Congress would depart from the settled
interpretation of § 5 and impose a demonstrably greater burden on
the jurisdictions covered by § 5, see
supra, at 480, by
dropping a footnote in a Senate Report instead of amending the
statute itself. See
Pierce v.
Underwood, 487 U. S. 552, 567 (1988)
("Quite obviously, reenacting precisely the same language would be
a strange way to make a change"). See also
City of Lockhart
v.
United States, 460 U. S. 125 (1983) (reaching its holding
over Justice Marshall's dissent, which raised the argument now
advanced by appellants regarding this passage in the Senate
Report).
Nor does the portion of the House Report cited by JUSTICE
STEVENS unambiguously call for the incorporation of § 2 into § 5.
That portion of the Report states:
"[M]any voting and election practices currently in effect are
outside the scope of [§ 5] ... because they were in existence
before 1965 .... Under the Voting Rights Act, whether a
discriminatory practice or procedure is of recent origin affects
only the mechanism that triggers relief, i. e., litigation [under §
2] or preclearance [under § 5]." H. R. Rep. No. 97-227, p. 28
(1981).
The obvious thrust of this passage is to establish that pre1965
discriminatory practices are not free from scrutiny under the Act
just because they need not be precleared under § 5: Such practices
might still violate § 2. But to say that pre-1965 practices can be
reached solely by § 2 is not to say that all post-1965 changes that
might violate § 2 may be reached by both § 2
and § 5 or that
"the substantive standards for § 2 and § 5 [are] the same," see
post, at 506 (opinion dissenting in part and concurring in
part). Our ultimate conclusion is also not undercut by statements
found in the "postenactment legislative record," see
post,
at 506, n. 9, given that "the views of a subsequent Congress form a
hazardous
485
basis for inferring the intent of an earlier one."
United
States v.
Price, 361 U. S. 304, 313
(1960). We therefore decline to give these sources controlling
weight.
Appellants' final appeal is to notions of public policy.
They assert that if the district court or Attorney General
examined whether a covered jurisdiction's redistricting plan
violates § 2 at the same time as ruling on preclearance under § 5,
there would be no need for two separate actions and judicial
resources would be conserved. Appellants are undoubtedly correct
that adopting their interpretation of § 5 would serve judicial
economy in those cases where a § 2 challenge follows a § 5
proceeding. But this does not always happen, and the burden on
judicial resources might actually increase if appellants' position
prevailed because § 2 litigation would effectively be incorporated
into
every § 5 proceeding.
Appellants lastly argue that preclearance is an equitable
remedy, obtained through a declaratory judgment action in district
court, see 42 U. S. C. § 1973c, or through the exercise of the
Attorney General's discretion, see 28 CFR § 51.52(a) (1996). A
finding that a redistricting plan violates § 2 of the Act, they
contend, is an equitable "defense," on the basis of which a
decisionmaker should, in the exercise of its equitable discretion,
be free to deny preclearance. This argument, however, is an attempt
to obtain through equity that which the law-i.
e., the
settled interpretation of § 5-forbids. Because "it is well
established that '[c]ourts of equity can no more disregard
statutory and constitutional requirements and provisions than can
courts of law,'"
INS v.
Pangilinan, 486 U. S. 875, 883 (1988)
(citing
Hedges v.
Dixon County, 150 U. S. 182, 192
(1893)), this argument must fail.
Of course, the Attorney General or a private plaintiff remains
free to initiate a § 2 proceeding if either believes that a
jurisdiction's newly enacted voting "qualification, prerequisite,
standard, practice, or procedure" may violate that section. All we
hold today is that preclearance under § 5 may not be denied on that
basis alone.
486
III
Appellants next contend that evidence showing that a
jurisdiction's redistricting plan dilutes the voting power of
minorities is at least
relevant in a § 5 proceeding because
it tends to prove that the jurisdiction enacted its plan with a
discriminatory "purpose." The District Court, reasoning that "[t]he
line [between § 2 and § 5] cannot be blurred by allowing a
defendant to do indirectly what it cannot do directly," 907 F.
Supp., at 445, rejected this argument and held that it "will not
permit section 2 evidence to prove discriminatory purpose under
section 5,"
ibid. Because we hold that some of this "§ 2
evidence" may be relevant to establish a jurisdiction's "intent to
retrogress" and cannot say with confidence that the District Court
considered the evidence proffered to show that the Board's
reapportionment plan was dilutive, we vacate this aspect of the
District Court's holding and remand. In light of this conclusion,
we leave open for another day the question whether the § 5 purpose
inquiry ever extends beyond the search for retrogressive intent.
See
Kentucky Dept. of Corrections v.
Thompson, 490 U.
S. 454, 465, n. 5 (1989) (declining to decide an issue that "is not
necessary to our decision"). Reserving this question is
particularly appropriate when, as in this suit, it was not squarely
addressed by the decision below or in the parties' briefs on
appeal. See Brief for Federal Appellant 23; Brief for Appellant
Price et al. 31-33, 34-35; Brief for Appellee 42-43. But in doing
so, we do not, contrary to JUSTICE STEVENS' view, see
post,
at 499 (opinion dissenting in part and concurring in part),
necessarily assume that the Board enacted the Jury plan with some
nonretrogressive, but nevertheless discriminatory, "purpose." The
existence of such a purpose, and its relevance to § 5, are issues
to be decided on remand.
Although § 5 warrants a denial of preclearance if a covered
jurisdiction's voting change "ha[s] the purpose [or] ... the effect
of denying or abridging the right to vote on account
487
of race or color," 42 U. s. C. § 1973c, we have consistently
interpreted this language in light of the purpose underlying §
5-"to insure that no voting-procedure changes would be made that
would lead to a retrogression in the position of racial
minorities."
Beer, 425 U. S., at 141. Accordingly, we have
adhered to the view that the only "effect" that violates § 5 is a
retrogressive one.
Ibid.; City of Lockhart, 460 U. S., at
134.
Evidence is "relevant" if it has "any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Fed. Rule Evid. 401. As we observed in
Arlington Heights, 429 U. S., at 266, the impact of an
official action is often probative of why the action was taken in
the first place since people usually intend the natural
consequences of their actions. Thus, a jurisdiction that enacts a
plan having a dilutive impact is more likely to have acted with a
discriminatory intent to dilute minority voting strength than a
jurisdiction whose plan has no such impact. A jurisdiction that
acts with an intent to dilute minority voting strength is more
likely to act with an intent to worsen the position of minority
voters-i.
e., an intent to retrogress-than a jurisdiction
acting with no intent to dilute. The fact that a plan has a
dilutive impact therefore makes it "more probable" that the
jurisdiction adopting that plan acted with an intent to retrogress
than "it would be without the evidence." To be sure, the link
between dilutive impact and intent to retrogress is far from
direct, but "the basic standard of relevance ... is a liberal one,"
Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U. S. 579,
587 (1993), and one we think is met here.
That evidence of a plan's dilutive impact may be relevant to the
§ 5 purpose inquiry does not, of course, mean that such evidence is
dispositive of that inquiry. In fact, we have previously observed
that a jurisdiction's single decision to choose a redistricting
plan that has a dilutive impact does not, with-
488
out more, suffice to establish that the jurisdiction acted with
a discriminatory purpose.
Shaw v.
Hunt, 517 U. S. 899, 914, n. 6
(1996) ("[WJe doubt that a showing of discriminatory effect under §
2, alone, could support a claim of discriminatory purpose under §
5"). This is true whether the jurisdiction chose the more dilutive
plan because it better comported with its traditional districting
principles, see
Miller v.
Johnson, 515 U. S., at 922
(rejecting argument that a jurisdiction's failure to adopt the plan
with the greatest possible number of majority black districts
establishes that it acted with a discriminatory purpose);
Shaw,
supra, at 912-913 (same), or if it chose the plan for no reason
at all. Indeed, if a plan's dilutive impact were dispositive, we
would effectively incorporate § 2 into § 5, which is a result we
find unsatisfactory no matter how it is packaged. See Part II,
supra.
As our discussion illustrates, assessing a jurisdiction's
motivation in enacting voting changes is a complex task requiring a
"sensitive inquiry into such circumstantial and direct evidence as
may be available."
Arlington Heights, 429 U. S., at 266. In
conducting this inquiry, courts should look to our decision in
Arlington Heights for guidance. There, we set forth a
framework for analyzing "whether invidious discriminatory purpose
was a motivating factor" in a government body's decisionmaking.
Ibid. In addition to serving as the framework for examining
discriminatory purpose in cases brought under the Equal Protection
Clause for over two decades, see,
e. g., Shaw v.
Reno, 509 U.
S. 630, 644 (1993) (citing
Arlington Heights standard in
context of Equal Protection Clause challenge to racial gerrymander
of districts);
Rogers v.
Lodge, 458 U. S. 613, 618 (1982)
(evaluating vote dilution claim under Equal Protection Clause using
Arlington Heights test);
Mobile, 446 U. S., at 70-74
(same), the
Arlington Heights framework has also been used,
at least in part, to evaluate purpose in our previous § 5 cases.
See
Pleasant Grove v.
United States, 479 U. S. 462, 469-470
(1987) (considering city's history in rejecting annexation of
489
black neighborhood and its departure from normal procedures when
calculating costs of annexation alternatives); see also
Busbee v.
Smith, 549 F. Supp. 494, 516-517 (DC 1982),
summarily aff'd, 459 U. S. 1166 (1983) (referring to
Arlington
Heights test);
Port Arthur v.
United States, 517
F. Supp. 987, 1019, aff'd,
459 U. S. 159 (1982)
(same).
The "important starting point" for assessing discriminatory
intent under
Arlington Heights is "the impact of the
official action whether it 'bears more heavily on one race than
another.''' 429 U. S., at 266 (citing
Washington v.
Davis, 426 U.
S. 229, 242 (1976)). In a § 5 case, "impact" might include a
plan's retrogressive effect and, for the reasons discussed above,
its dilutive impact. Other considerations relevant to the purpose
inquiry include, among other things, "the historical background of
the [jurisdiction's] decision"; "[t]he specific sequence of events
leading up to the challenged decision"; "[d]epartures from the
normal procedural sequence"; and "[t]he legislative or
administrative history, especially ... [any] contemporary
statements by members of the decisionmaking body." 429 U. S., at
266-268.
We are unable to determine from the District Court's opinion in
this action whether it deemed irrelevant all evidence of the
dilutive impact of the redistricting plan adopted by the Board. At
one point, the District Court correctly stated that "the adoption
of one nonretrogressive plan rather than another nonretrogressive
plan that contains more majorityblack districts cannot
by
itself give rise to the inference of discriminatory intent."
907 F. Supp., at 450 (emphasis added). This passage implies that
the District Court believed that the existence of less dilutive
options was at least relevant to, though not dispositive of, its
purpose inquiry. While this language is consistent with our holding
today, see
supra, at 486-488, the District Court also
declared that "we will not permit section 2 evidence to prove
discriminatory purpose under section 5,"
supra, at 486. With
this statement, the District Court appears to endorse the notion
that evidence
490
of dilutive impact is irrelevant even to an inquiry into
retrogressive intent, a notion we reject. See
supra, at
486-488.
The Board contends that the District Court actually "presumed
that white majority districts had [a dilutive] effect," Brief for
Appellee 35, and "cut directly to the dispositive question
'started' by the existence of [a dilutive] impact: did the Board
have 'legitimate, nondiscriminatory motives' for adopting its
plan[?]"
Id., at 33. Even if the Board were correct, the
District Court gave no indication that it was assuming the plan's
dilutive effect, and we hesitate to attribute to the District Court
a rationale it might not have employed. Because we are not
satisfied that the District Court considered evidence of the
dilutive impact of the Board's redistricting plan, we vacate this
aspect of the District Court's opinion. The District Court will
have the opportunity to apply the
Arlington Heights test on
remand as well as to address appellants' additional arguments that
it erred in refusing to consider evidence that the Board was in
violation of an ongoing injunction "to 'remedy any remaining
vestiges of [a] dual [school] system,'" 907 F. Supp., at 449, n.
18.
***
The judgment of the District Court is vacated, and the case is
remanded for further proceedings consistent with this decision.
It is so ordered.
JUSTICE THOMAS, concurring.
Although I continue to adhere to the views I expressed in
Holder v.
Hall, 512 U. S. 874, 891 (1994)
(opinion concurring in judgment), I join today's opinion because it
is consistent with our vote dilution precedents. I fully
anticipate, however, that as a result of today's holding, all of
the problems we have experienced in § 2 vote dilution cases will
now be replicated and, indeed, exacerbated in the § 5 retrogression
inquiry.
I have trouble, for example, imagining a reapportionment change
that could not be deemed "retrogressive" under our
491
vote dilution jurisprudence by a court inclined to find it so.
We have held that a reapportionment plan that "enhances the
position of racial minorities" by increasing the number of
majority-minority districts does not "have the 'effect' of diluting
or abridging the right to vote on account of race within the
meaning of § 5."
Beer v.
United States, 425 U. S. 130, 141
(1976). But in so holding we studiously avoided addressing one of
the necessary consequences of increasing majority-minority
districts: Such action
necessarily decreases the level of
minority influence in surrounding districts, and to that extent
"dilutes" the vote of minority voters in those other districts, and
perhaps dilutes the influence of the minority group as a whole.
See,
e. g., Hays v.
Louisiana, 936 F.
Supp. 360, 364, n. 17 (WD La. 1996) (three-judge court) (noting
that plaintiffs' expert "argues convincingly that our plan, with
its one black majority and three influence districts, empowers more
black voters statewide than does" a plan with two black-majority
districts and five "bleached" districts in which minority influence
was reduced in order to create the second black-majority district);
cf.
Johnson v.
De Grandy, 512 U. S. 997, 1007
(1994) (noting that dilution can occur by "fragmenting the minority
voters among several districts ... or by packing them into one or a
small number of districts to minimize their influence in the
districts next door").
Under our vote dilution jurisprudence, therefore, a court could
strike down
any reapportionment plan, either because it did
not include enough majority-minority districts or because it did
(and thereby diluted the minority vote in the remaining districts).
A court could presumably even strike down a new reapportionment
plan that did not significantly alter the status quo at all, on the
theory that such a plan did not measure up to some hypothetical
ideal. With such an indeterminate "rule," § 5 ceases to be
primarily a prophylactic tool in the important war against
discrimination in voting, and instead becomes the means whereby the
Federal Government, and particularly the Department of Justice,
usurps
492
the legitimate political judgments of the States. And such an
empty "rule" inevitably forces the courts to make political
judgments regarding which type of apportionment best serves
supposed minority interests-judgments that the courts are ill
equipped to make.
I can at least find some solace in the belief that today's
opinion will force us to confront, with a renewed sense of urgency,
this fundamental inconsistency that lies at the heart of our vote
dilution jurisprudence.
Beyond my general objection to our vote dilution precedent, the
one portion of the majority opinion with which I disagree is the
majority's new suggestion that preclearance standards established
by the Department of Justice are "normally" entitled to deference.
See
ante, at 483. * Section 5 sets up alternative routes for
preclearance, and the primary route specified is through the
District Court for the District of Columbia, not through the
Attorney General's office. See 42 U. S. C. § 1973c (generally
requiring District Court preclearance, with a proviso that covered
jurisdictions may
obtain preclearance by the Attorney
General in lieu of District Court preclearance, but providing no
authority for the Attorney General to
preclude judicial
preclearance). Requiring the District Court to defer to adverse
preclearance decisions by the Attorney General based upon the very
preclearance standards she articulates would essentially render the
independence of the District Court preclearance route a
nullity.
Moreover, given our own "longstanding interpretation of § 5,"
see
ante, at 483, deference to the particular preclearance
regulation addressed in this action would be inconsistent with
another of the Attorney General's regulations, which provides: "In
making determinations [under § 5] the Attorney General will be
guided by the relevant decisions of the
*1 do not address the separate question, not presented by this
action, whether the Department's
interpretation of the
Voting Rights Act of 1965, as opposed to its articulation of
standards applicable to its own preclearance determinations, is
entitled to deference. The regulation at issue here only purports
to be the latter.
493
Supreme Court of the United States and of other Federal courts."
28 CFR § 51.56 (1996). Thus, while I agree with the majority's
decision not to defer to the Attorney General's standards, I would
reach that result on different grounds.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in
part and concurring in the judgment.
I join Parts I and II of the majority opinion, and Part III
insofar as it is not inconsistent with this opinion. I write
separately to express my disagreement with one aspect of the
majority opinion. The majority says that we need not decide
"whether the § 5 purpose inquiry ever extends beyond the search for
retrogressive intent."
Ante, at 486. In my view, we should
decide the question, for otherwise the District Court will find it
difficult to evaluate the evidence that we say it must consider.
Cf.
post, at 508 (STEVENS, J., dissenting in part and
concurring in part). Moreover, the answer to the question is that
the "purpose" inquiry does extend beyond the search for
retrogressive intent. It includes the purpose of unconstitutionally
diluting minority voting strength.
The language of § 5 itself forbids a change in "any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting," where that change either (1) has
the "purpose" or (2) will have the "effect" of "denying or
abridging the right to vote on account of race or color." 42 U. S.
C. § 1973c. These last few words reiterate in context the language
of the Fifteenth Amendment itself:
"The right of citizens ... to vote shall not be denied or
abridged ... on account of race [or] color .... " This use of
constitutional language indicates that one purpose forbidden by the
statute is a purpose to act unconstitutionally. And a new plan
enacted with the purpose of unconstitutionally diluting minority
votes is an unconstitutional plan.
Mobile v.
Bolden,
446 U. S. 55,
62-63, 66 (1980) (plurality opinion);
ante, at 481-482.
494
Of course, the constitutional language also applies to § 5's
prohibition that rests upon "effects." The Court assumes, in its
discussion of "effects," that the § 5 word "effects" does not now
embody a
purely constitutional test, whether or not it ever
did so. See
ante, at 478;
City of Rome v.
United
States, 446 U. S.
156, 173, 177 (1980). And that fact, here, is beside the point.
The separate argument about the meaning of the word "effect"
concerns
how far beyond the Constitution's requirements
Congress intended that word to reach. The argument about "purpose"
is simply whether Congress intended the word to reach
as far
as the Constitution itself, embodying those purposes that, in
relevant context, the Constitution itself would forbid. I can find
nothing in the Court's discussion that shows that Congress intended
to restrict the meaning of the statutory word "purpose" short of
what the Constitution itself requires. And the Court has previously
expressly indicated that minority vote dilution is a harm that § 5
guards against.
Allen v.
State Bd. of Elections,
393 U. S. 544,
569 (1969).
Consider a hypothetical example that will clarify the precise
legal question here at issue. Suppose that a covered jurisdiction
is choosing between two new voting plans, A and B. Neither plan is
retrogressive. Plan A violates every traditional districting
principle, but from the perspective of minority representation, it
maintains the status quo, thereby meeting the "effects" test of §
5. See
ante, at 478-479. Plan B is basically consistent with
traditional districting principles and it also creates one or two
new majority-minority districts (in a State where the number of
such districts is significantly less than proportional to minority
voting age population). Suppose further that the covered
jurisdiction adopts Plan A. Without any other proposed evidence or
justification, ordinary principles of logic and human experience
suggest that the jurisdiction would likely have adopted Plan A with
"the purpose ... of denying or abridging the right to vote on
account of race or color." § 1973c. It is reason-
495
able to assume that the Constitution would forbid the use of
such a plan. See
Rogers v.
Lodge, 458 U. S. 613, 617 (1982)
(Fourteenth Amendment covers vote dilution claims);
Mobile,
446 U. S., at 66 (plurality opinion) (same). And compare
id., at 62-63 (intentional vote dilution may be illegal
under the Fifteenth Amendment) and
Gomillion v.
Lightfoot, 364
U. S. 339, 346 (1960) (Fifteenth Amendment covers municipal
boundaries drawn to exclude blacks), with
Mobile, supra, at
84, n. 3 (STEVENS, J., concurring in judgment)
(Mobile
plurality said that Fifteenth Amendment does not reach vote
dilution);
Voinovich v.
Quilter, 507 U. S. 146, 159 (1993)
("This Court has not decided whether the Fifteenth Amendment
applies to vote-dilution claims ... ");
Shaw v.
Reno,
509 U. S. 630,
645 (1993) (endorsing the
Gomillion concurrence's Fourteenth
Amendment approach); and
Beer v.
United States,
425 U. S. 130,
142, n. 14 (1976). Then, to read § 5's "purpose" language to
require approval of Plan A, even though the jurisdiction cannot
provide a neutral explanation for its choice, would be both to read
§ 5 contrary to its plain language and also to believe that
Congress would have wanted a § 5 court (or the Attorney General) to
approve an unconstitutional plan adopted with an unconstitutional
purpose.
In light of this example, it is not surprising that this Court
has previously indicated that the purpose part of § 5 prohibits a
plan adopted with the purpose of unconstitutionally diluting
minority voting strength, whether or not the plan is retrogressive
in its effect. In
Shaw v.
Hunt, 517 U. S. 899 (1996), for
example, the Court doubted "that a showing of discriminatory effect
under § 2,
alone, could support a claim of discriminatory
purpose under § 5."
Id., at 914, n. 6 (emphasis added). The
word "alone" suggests that the evidence of a discriminatory effect
there at issue-evidence of dilution-could be relevant to a
discriminatory purpose claim. And if so, the more natural
understanding of § 5 is that an unlawful purpose includes more than
simply a purpose to
496
retrogress. Otherwise, dilution would either dispositively show
an unlawful discriminatory effect (if retrogressive) or it would
almost always be irrelevant (if not retrogressive). Either way, it
would not normally have much to do with unlawful purpose. See also
the discussions in
Richmond v.
United States,
422 U. S. 358,
378-379 (1975) (annexation plan did not have an impermissible
dilutive effect but the Court remanded for a determination of
whether there was an impermissible § 5 purpose);
Pleasant
Grove v.
United States, 479 U. S. 462, 471-472,
and n. 11 (1987) (purpose to minimize
future black voting
strength is impermissible under § 5);
Port Arthur v.
United States, 459 U. S. 159, 168 (1982)
(a plan adopted for a discriminatory purpose is invalid under § 5
even if it "might otherwise be said to reflect the political
strength of the minority community");
post, at 507-508
(STEVENS, J., dissenting in part and concurring in part).
Miller v.
Johnson, 515 U. S. 900 (1995),
also implicitly assumed that § 5's "purpose" stretched beyond the
purely retrogressive. There, the Justice Department pointed out
that Georgia made a choice between two redistricting plans, one of
which (call it Plan A) had more majority-black districts than the
other (call it Plan B). The Department argued that the fact that
Georgia chose Plan B showed a forbidden § 5 discriminatory purpose.
The Court rejected this argument, but the reason that the majority
gave for that rejection is important. The Court pointed out that
Plan B embodied traditional state districting principles. It
reasoned that "[t]he State's policy of adhering to other
districting principles instead of creating as many
majority-minority districts as possible does not support an
inference" of an unlawful discriminatory purpose.
Id., at
924. If the only relevant "purpose" were a retrogressive purpose,
this reasoning, with its reliance upon traditional districting
principles, would have been beside the point. The Court would have
concerned itself only with Georgia's intent to worsen the position
of minorities, not with the reasons why Georgia could
497
have adopted one of two potentially ameliorative plans. Indeed,
the Court indicated that an ameliorative plan
would run
afoul of the § 5 purpose test if it violated the Constitution.
Ibid. See also
Shaw v.
Hunt, supra, at
912-913.
In sum, the Court today should make explicit an assumption
implicit in its prior cases. Section 5 prohibits a covered State
from making changes in its voting practices and procedures where
those changes have the
unconstitutional "purpose" of
unconstitutionally diluting minority voting strength.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting in
part and concurring in part.
In my view, a plan that clearly violates § 2 is not entitled to
preclearance under § 5 of the Voting Rights Act of 1965. The
majority's contrary view would allow the Attorney General of the
United States to place her stamp of approval on a state action that
is in clear violation of federal law. It would be astonishing if
Congress had commanded her to do so. In fact, however, Congress
issued no such command. Surely no such command can be found in the
text of § 5 of the Voting Rights Act.1 Moreover, a fair review of
the text
1 As originally enacted, § 5 provided:
"Sec. 5. Whenever a State or political subdivision with respect
to which the prohibitions set forth in section 4(a) 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, 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 have the effect of denying or abridging the right to vote on
account of race or color, 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 Gen-
498
and the legislative history of the 1982 amendment to § 2 of that
Act indicates that Congress intended the Attorney General to deny
preclearance under § 5 whenever it was clear that a new voting
practice was prohibited by § 2. This does not mean that she must
make an independent inquiry into possible violations of § 2
whenever a request for preclearance is made. It simply means that,
as her regulations provide, she must refuse preclearance when
"necessary to prevent a clear violation of amended section 2." 28
CFR § 51.55(b)(2) (1996).
It is, of course, well settled that the Attorney General must
refuse to preclear a new election procedure in a covered
jurisdiction if it will "lead to a retrogression in the position of
racial minorities with respect to their effective exercise of the
electoral franchise."
Beer v.
United States, 425 U. S. 130, 141
(1976). A retrogressive effect or a retrogressive purpose is a
sufficient basis for denying a preclearance request under § 5.
Today, however, the Court holds that retrogression is the only kind
of effect that will justify denial of preclearance under § 5,
ante, at 476-485, and it assumes that "the § 5 purpose
inquiry [never] extends beyond the search for retrogressive
intent."
Ante, at 486. While I agree that this action must
be remanded even under the Court's miserly interpretation of § 5, I
disagree with the Court's holding/assumption that § 5 is concerned
only with retrogressive effects and purposes.
Before explaining my disagreement with the Court, I think it
important to emphasize the three factual predicates that underlie
our analysis of the issues. First, we assume
eral and the Attorney General has not interposed an objection
within sixty days after such submission, except that neither 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. 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 of the United States
Code [28 U. S. C. §2284] and any appeal shall lie to the Supreme
Court." 79 Stat. 439.
499
that the plan submitted by the Bossier Parish School Board
(Board) was not "retrogressive" because it did not make matters any
worse than they had been in the past. None of the 12 districts had
ever had a black majority and a black person had never been elected
to the Board. App. to Juris. Statement 67a. Second, because the
majority in both the District Court and this Court found that even
clear violations of § 2 must be precleared and thus found it
unnecessary to discuss whether § 2 was violated in this action, we
may assume that the record discloses a "clear violation" of § 2.
This means that, in the language of § 2, it is perfectly clear that
"the political processes leading to nomination or election [to
positions on the Board] are not equally open to participation by
members of [the African-American race] in that its members have
less opportunity than other members of the electorate to ... elect
representatives of their choice." 42 U. S. C. § 1973(b).2 Third, if
the Court is correct in assuming that the purpose inquiry under § 5
may be limited to evidence of "retrogressive intent," it must also
be willing to assume that the documents submitted in support of the
request for preclearance clearly establish that the plan was
adopted for the specific purpose of preventing African-Americans
from obtaining representation on the Board. Indeed, for the purpose
of analyzing the legal issues, we must assume that Judge Kessler,
concurring in part and dissenting in part, accurately summarized
the evidence when she wrote:
"The evidence in this case demonstrates overwhelmingly that the
School Board's decision to adopt the Police Jury redistricting plan
was motivated by discriminatory
2 Although the majority in the District Court refused to
consider any of the evidence relevant to a § 2 violation, the
parties' stipulations suggest that the plan violated § 2. For
instance, the parties' stipulated that there had been a long
history of discrimination against black voters in Bossier Parish,
see App. to Juris. Statement 130a-140a; that voting in Bossier
Parish was racially polarized, see
id., at 122a-127a; and
that it was possible to draw two majority-black districts without
violating traditional districting principles, see
id., at
76a, 82a-83a, 114a-115a.
500
purpose. The adoption of the Police Jury plan bears heavily on
the black community because it denies its members a reasonable
opportunity to elect a candidate of their choice. The history of
discrimination by the Bossier School System and the Parish itself
demonstrates the Board's continued refusal to address the concerns
of the black community in Bossier Parish. The sequence of events
leading up to the adoption of the plan illustrate the Board's
discriminatory purpose. The School Board's substantive departures
from traditional districting principles is similarly probative of
discriminatory motive. Three School Board members have acknowledged
that the Board is hostile to black representation. Moreover, some
of the purported rationales for the School Board's decision are
fiat-out untrue, and others are so glaringly inconsistent with the
facts of the case that they are obviously pretexts." 907 F. Supp.
434, 463 (DC 1995).
If the purpose and the effect of the Board's plan were simply to
maintain the discriminatory status quo as described by Judge
Kessler, the plan would not have been retrogressive. But, as I
discuss below, that is not a sufficient reason for concluding that
it complied with § 5.
I
In the Voting Rights Act of 1965, Congress enacted a complex
scheme of remedies for racial discrimination in voting. As
originally enacted, § 2 of the Act was "an uncontroversial
provision" that "simply restated" the prohibitions against such
discrimination "already contained in the Fifteenth Amendment,"
Mobile v.
Bolden, 446 U. S. 55, 61 (1980)
(plurality opinion). Like the constitutional prohibitions against
discriminatory districting practices that were invalidated in cases
like
Gomillion v.
Lightfoot, 364 U. S. 339 (1960), and
White v.
Regester, 412 U. S. 755 (1973), § 2
was made applicable to every State and political subdivision in the
country.
501
Section 5, on the other hand, was highly controversial because
it imposed novel, extraordinary remedies in certain areas where
discrimination had been most flagrant. See
South Carolina v.
Katzenbach, 383 U. S. 301, 334-335
(1966).3 Jurisdictions like Bossier Parish in Louisiana are covered
by § 5 because their history of discrimination against
AfricanAmericans was a matter of special concern to Congress.
Because these jurisdictions had resorted to various strategies to
avoid complying with court orders to remedy discrimination,
"Congress had reason to suppose that [they] might try similar
maneuvers in the future in order to evade the remedies for voting
discrimination contained in the Act itself."
Id., at 335.
Thus Congress enacted § 5, not to maintain the discriminatory
status quo, but to stay ahead of efforts by the most resistant
jurisdictions to undermine the Act's purpose of "rid[ding] the
country of racial discrimination."
Id., at 315 ("The heart
of the Act is a complex scheme of stringent remedies aimed at areas
where voting discrimination has been most flagrant").
In areas of the country lacking a history of pervasive
discrimination, Congress presumed that voting practices were
generally lawful. Accordingly, the burden of proving a violation of
§ 2 has always rested on the party challenging the voting practice.
The situation is dramatically different in covered jurisdictions.
In those jurisdictions, § 5 flatly prohibits the adoption of any
new voting procedure unless the State or political subdivision
institutes an action in the Federal District Court for the District
of Columbia and obtains a declaratory judgment that the change will
not have a discriminatory purpose or effect. See 42 U. S. C. §
1973c. The burden of proving compliance with the Act rests on the
jurisdiction. A proviso to § 5 gives the Attorney General the
authority to allow the new procedure to go into effect, but
3 Section 4 of the Act sets forth the formula for identifying
the jurisdictions in which such discrimination had occurred, see
South Carolina v.
Katzenbach, 383 U. S., at
317-318.
502
Opinion of STEVENS, J.
like the immigration statutes that give her broad discretion to
waive deportation of undesirable aliens, it does not expressly
impose any limit on her discretion to refuse preclearance. See
ibid. The Attorney General's discretion is, however, cabined
by regulations that are presumptively valid if they "are reasonable
and do not conflict with the Voting Rights Act itself,"
Georgia v.
United States, 411 U. S. 526, 536
(1973). Those regulations provide that preclearance will generally
be granted if a proposed change "is free of discriminatory purpose
and retrogressive effect"; they also provide, however, that in
"those instances" in which the Attorney General concludes "that a
bar to implementation of the change is necessary to prevent a clear
violation of amended section 2," preclearance shall be withheld.4
There is no basis for the Court's speculation that litigants would
so " 'routinely,'"
ante, at 477, employ this 10-year-old
regulation as to "make compliance with § 5 contingent upon
compliance with § 2,"
ibid. Nor do the regulations require
the jurisdiction to assume the burden of proving the absence of
vote
4 Title 28 CFR § 51.55 (1996) provides:
"Consistency with constitutional and statutory requirements.
"(a)
Consideration in general. In making a determination
the Attorney General will consider whether the change is free of
discriminatory purpose and retrogressive effect in light of, and
with particular attention being given to, the requirements of the
14th, 15th, and 24th amendments to the Constitution, 42 U. S. C.
1971(a) and (b), sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c),
and 208 of the Act, and other constitutional and statutory
provisions designed to safeguard the right to vote from denial or
abridgment on account of race, color, or membership in a language
minority group.
"(b)
Section 2. (1) Preclearance under section 5 of a
voting change will not preclude any legal action under section 2 by
the Attorney General if implementation of the change subsequently
demonstrates that such action is appropriate.
"(2) In those instances in which the Attorney General concludes
that, as proposed, the submitted change is free of discriminatory
purpose and retrogressive effect, but also concludes that a bar to
implementation of the change is necessary to prevent a clear
violation of amended section 2, the Attorney General shall withhold
section 5 preclearance."
503
dilution, see
ante, at 480. They merely preclude
preclearance when "necessary to prevent a clear violation of ...
section 2." While the burden of disproving discriminatory purpose
or retrogressive effect is on the submitting jurisdiction, if the
Attorney General's conclusion that the change would clearly violate
§ 2 is challenged, the burden on that issue, as in any § 2
challenge, should rest on the Attorney General.5
The Court does not suggest that this regulation is inconsistent
with the text of § 5. Nor would this be persuasive, since the
language of § 5 forbids preclearance of any voting practice that
would have "the purpose [or] effect of denying or abridging the
right to vote on account of race or color." 42 U. s. C. § 1973c.
Instead the Court rests its entire analysis on the flawed premise
that our cases hold that a change, even if otherwise unlawful,
cannot have an effect prohibited by § 5 unless that effect is
retrogressive. The two cases on which the Court relies,
Beer
v.
United States, 425 U. S. 130 (1976), and
City of Lockhart v.
United States, 460 U. S. 125 (1983), do
hold (as the current regulations provide) that proof that a change
is not retrogressive is normally sufficient to justify preclearance
under § 5. In neither case, however, was the Court confronted with
the question whether that showing would be sufficient if the
proposed change was so discriminatory that it clearly violated some
other federal law.
5 Thus, I agree with those courts that have found that the
jurisdiction is not required to prove that its proposed change will
not violate § 2 in order to receive preclearance. See
Arizona v.
Reno, 887 F. Supp. 318, 321 (DC 1995).
Although several three-judge District Courts have concluded that §
2 standards should not be incorporated into § 5, none has held that
preclearance should be granted when there is a clear violation of §
2; rather, they appear simply to have determined that a § 2 inquiry
is not routinely required in a § 5 case. See,
e. g., Georgia
v.
Reno, 881 F. Supp. 7, 12-14 (DC 1994);
New York v.
United States, 874 F. Supp. 394, 398-399 (DC 1994); cf.
Burton v.
Sheheen, 793 F. Supp. 1329, 1350 (SC 1992)
(holding that although courts are not "obligated to completely
graft" § 2 standards onto § 5, "[i]t would be incongruous for the
court to adopt a plan which did not comport with the standards and
guidelines of § 2").
504
In fact, in
Beer-which held that a legislative
reapportionment enhancing the position of African-American voters
did not have a discriminatory effect-the Court stated that "an
ameliorative new legislative apportionment cannot violate § 5
unless the new apportionment itself so discriminates on the basis
of race or color as to violate the Constitution." 425 U. S., at
141.6 Thus, to the extent that the
Beer Court addressed the
question at all, it suggested that certain nonretrogressive changes
that were nevertheless discriminatory should not be precleared.
The Court discounts the significance of the "unless" clause
because it refers to a constitutional violation rather than a
statutory violation. According to the Court's reading, the
Beer dictum at most precludes preclearance of changes that
violate the Constitution rather than changes that violate § 2. This
argument is unpersuasive. As the majority notes, the
Beer
Court cites
White v.
Regester, 412 U. S., at 766,
which found unconstitutional a reapportionment scheme that gave
African-American residents "less opportunity than did other
residents in the district to participate in the political processes
and to elect legislators of their choice." Because, in 1976, when
Beer was decided, the § 2 standard was coextensive with the
constitutional standard,
Beer did not purport to distinguish
between challenges brought under the Constitution and those brought
under the statute. Rather
Beer's dictum suggests that any
changes that violate the standard established in
White v.
Regester should not be precleared.7
6 In
Lockhart the Court disavowed reliance on the
ameliorative character of the change reviewed in
Beer, see
460 U. S., at 134, n. 10. It left open the question whether
Congress had altered the
Beer standard when it amended § 2
in 1982, 460 U. S., at 133, n. 9, and said nothing about the
possible significance of a violation of a constitutional or
statutory prohibition against vote dilution.
7 In response to this dissent, the majority contends that, at
most,
Beer v.
United States, 425 U. S. 130 (1976),
allows denial of preclearance for those changes that violate the
Constitution. See
ante, at 482-483. Thus, the majority
apparently concedes that our "settled interpretation,"
ante,
505
As the Court recognizes,
ante, at 481-482, the law has
changed in two respects since the announcement of the
Beer
dictum. In 1980, in what was perceived by Congress to be a change
in the standard applied in
White v.
Regester, a
plurality of this Court concluded that discriminatory purpose is an
essential element of a constitutional vote dilution challenge. See
Mobile v.
Bolden, 446 U. S., at 62. In reaction to
that decision, in 1982 Congress amended § 2 by placing in the
statute the language used in the
White opinion to describe
what is commonly known as the "results" standard for evaluating
vote dilution challenges. See 96 Stat. 134 (now codified at 42 U.
S. C. §§ 1973(a)-(b));
Thornburg v.
Gingles, 478 U. S. 30, 35 (1986).8
Thus Congress preserved, as a matter of statutory law, the very
same standard that the Court had identified in
Beer as an
exception to the general rule requiring preclearance of
nonretrogressive changes. Because in 1975
Beer required
denial of preclearance for voting plans that violated the
White standard, it follows that Congress, in preserving the
White standard, intended also that the Attorney General
should continue to refuse to preclear plans violating that
standard.
That intent is confirmed by the legislative history of the 1982
Act. The Senate Report states:
"Under the rule of Beer v. United States, 425 U. S. 130 (1976), a
voting change which is ameliorative is not objectionable unless the
change 'itself so discriminates on the basis of race or color as to
violate the Constitution.' 425 u. S. at 141; see also 142 n.
14 (citing to the dilution cases from Fortson v.
Dorsey[, 379
U. S. 433 (1965),] through White v. Regester). In
light of the amendment to section 2, it is intended that a section
5 objection also follow if a new voting procedure itself so
at 484, of § 5 supports a denial of preclearance for at least
some nonretrogressive changes.
8The amended version of §2 tracks the language in
White
v.
Regester, 412 U. S. 755, 766
(1973).
506
Opinion of STEVENS, J.
discriminates as to violate section 2." S. Rep. No. 97417, p.
12, n. 31 (1982).
The House Report conveys the same message in different language.
It unequivocally states that whether a discriminatory practice or
procedure was in existence before 1965 (and therefore only subject
to attack under § 2) or is the product of a recent change (and
therefore subject to preclearance under § 5) "affects only the
mechanism that triggers relief." H. R. Rep. No. 97-227, p. 28
(1981). This statement plainly indicates that the Committee
understood the substantive standards for § 2 and § 5 violations to
be the same whenever a challenged practice in a covered
jurisdiction represents a change subject to the dictates of § 5.9
Thus, it is reasonable to assume that Congress, by endorsing the
"unless" clause in
Beer, contemplated the denial of
preclearance for any change that clearly violates amended § 2. The
majority, by belittling this legislative history, abrogates
Con-
9 The postenactment legislative record also supports the
Attorney General's interpretation of § 5. In 1985, the Attorney
General first proposed regulations requiring a denial of
preclearance "based upon violation of Section 2 if there is clear
and convincing evidence of such a violation." 50 Fed. Reg. 19122,
19131. Congress held oversight hearings in which several witnesses,
including the Assistant Attorney General, Civil Rights Division,
testified that clear violations of § 2 should not be precleared.
See Oversight Hearings before the Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary,
Proposed Changes to Regulations Governing Section 5 of the Voting
Rights Act, 99th Cong., 1st Sess., 47, 149, 151-152 (1985).
Following these hearings, the House Judiciary Subcommittee on Civil
and Constitutional Rights issued a Report in which it concluded
"that it is a proper interpretation of the legislative history of
the 1982 amendments to use Section 2 standards in the course of
making Section 5 determinations." Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary,
Voting Rights Act: Proposed Section 5 Regulations, 99th Cong., 2d
Sess., Ser. No.9, p. 5 (Comm. Print 1986). Although this history
does not provide direct evidence of the enacting Congress' intent,
it does constitute an informed expert opinion concerning the
validity of the Attorney General's regulation.
507
gress' effort, in enacting the 1982 amendments, "to broaden the
protection afforded by the Voting Rights Act."
Chisom
Despite this strong evidence of Congress' intent, the majority
holds that no deference to the Attorney General's regulation is
warranted. The Court suggests that had Congress wished to alter
"our longstanding interpretation" of § 5, Congress would have made
this clear.
Ante, at 483. But nothing in our "settled
interpretation" of § 5,
ante, at 484, is inconsistent with
the Attorney General's reading of the statute. To the contrary, our
precedent actually indicates that nonretrogressive plans that are
otherwise discriminatory under
White v.
Regester
should not be precleared. As neither the language nor the
legislative history of § 5 can be said to conflict with the view
that changes that clearly violate § 2 are not entitled to
preclearance, there is no legitimate basis for refusing to defer to
the Attorney General's regulation. See
Presley v.
Etowah
County Comm'n, 502 U. S. 491, 508 (1992).
II
In Part III of its opinion the Court correctly concludes that
this action must be remanded for further proceedings because the
District Court erroneously refused to consider certain evidence
that is arguably relevant to whether the Board has proved an
absence of discriminatory purpose under § 5. Because the Court
appears satisfied that the disputed evidence may be probative of an
"'intent to retrogress,'" it concludes that it is unnecessary to
decide "whether the § 5 purpose inquiry ever extends beyond the
search for retrogressive intent."
Ante, at 486. For two
reasons, I think it most unwise to reverse on such a narrow
ground.
First, I agree with JUSTICE BREYER, see
ante, at 493,
that there is simply no basis for imposing this limitation on the
purpose inquiry. None of our cases have held that § 5's purpose
test is limited to retrogressive intent. In
Pleasant
508
Grove v.
United States, 479 U. S. 462, 469-472
(1987), for instance, we found that the city had failed to prove
that its annexation of certain white areas lacked a discriminatory
purpose. Despite the fact that the annexation lacked a
retrogressive effect, we found it was subject to § 5 preclearance.
Ibid.; see also
id., at 474-475 (Powell, J.,
dissenting) (contending that the majority erred in holding that a
discriminatory purpose could be found even though there was no
intent "to have a retrogressive effect"). Furthermore, limiting the
§ 5 purpose inquiry to retrogressive intent is inconsistent with
the basic purpose of the Act. Assume, for example, that the record
unambiguously disclosed a long history of deliberate exclusion of
African-Americans from participating in local elections, including
a series of changes each of which was adopted for the specific
purpose of maintaining the status quo. None of those changes would
have been motivated by an "intent to regress," but each would have
been motivated by a "discriminatory purpose" as that term is
commonly understood. Given the long-settled understanding that § 5
of the Act was enacted to prevent covered jurisdictions from
"contriving new rules of various kinds for the sole purpose of
perpetuating voting discrimination,"
South Carolina v.
Katzenbach, 383 U. S., at 335, it is inconceivable that
Congress intended to authorize preclearance of changes adopted for
the sole purpose of perpetuating an existing pattern of
discrimination.
Second, the Court's failure to make this point clear can only
complicate the task of the District Court on remand. If that court
takes the narrow approach suggested by the Court, another appeal
will surely follow; if a majority ultimately agrees with my view of
the issue, another remand will then be necessary. On the other
hand, if the District Court does not limit its consideration to
evidence of retrogressive intent, and if it therefore rules against
the Board, appellees will bring the action back and the Court would
then have to resolve the issue definitively.
509
In sum, both the interest in orderly procedure and the fact that
a correct answer to the issue is pellucidly clear should be
sufficient to persuade the Court to state definitively that § 5
preclearance should be denied if Judge Kessler's evaluation of the
record is correct.
Accordingly, while I concur in the judgment insofar as it
remands the action for further proceedings, I dissent from the
decision insofar as it fails to authorize proceedings in accordance
with the views set forth above.
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