OCTOBER TERM, 1999
Syllabus
RENO, ATTORNEY GENERAL
v. BOSSIER PARISH SCHOOL BOARD
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 98-405. Argued April 26, 1999-Reargued October 6,
1999-Decided January 24, 2000*
Bossier Parish, Louisiana, a jurisdiction covered by § 5 of the
Voting Rights Act of 1965, is thereby prohibited from enacting any
change in a "voting qualification[,] prerequisite[,] standard,
practice, or procedure" without first obtaining preclearance from
either the Attorney General or the District Court. When, following
the 1990 census, the Bossier Parish School Board (Board) submitted
a proposed redistricting plan to the Attorney General, she denied
preclearance. The Board then filed this preclearance action in the
District Court. Section 5 authorizes preclearance of a proposed
voting change that "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." Appellants conceded that the Board's plan did not have a
prohibited "effect" under § 5, since it was not "retrogressive," i.
e., did not worsen the position of minority voters, see
Beer v.
United States, 425 U. S. 130, but
claimed that it violated § 5 because it was enacted for a
discriminatory "purpose." The District Court granted preclearance.
On appeal, this Court disagreed with the District Court's
proposition that
all evidence of a dilutive (but
nonretrogressive) effect forbidden by § 2 was irrelevant to whether
the Board enacted the plan with a retrogressive purpose forbidden
by § 5.
Reno v.
Bossier Parish School Bd., 520 U. S. 471, 486-487
(Bossier Parish I). This Court vacated and remanded for
further proceedings as to the Board's purpose in adopting its plan,
id., at 486, leaving for the District Court the question
whether the § 5 purpose inquiry ever extends beyond the search for
retrogressive intent,
ibid. On remand, the District Court
again granted preclearance. Concluding,
inter alia, that
there was no evidence of discriminatory but nonretrogressive
purpose, the court left open the question whether § 5 prohibits
preclearance of a plan enacted with such a purpose.
*Together with No. 98-406,
Price et al. v.
Bossier
Parish School Bd., also on appeal from the same court.
321
Held:
1. The Court rejects the Board's contention that these cases are
mooted by the fact that the 1992 plan will never again be used
because the next scheduled election will occur in 2002, when the
Board will have a new plan in place based upon data from the 2000
census. In at least one respect, the 1992 plan will have probable
continuing effect: It will serve as the baseline against which
appellee's next voting plan will be evaluated for preclearance
purposes. Pp. 327-328.
2. In light of § 5's language and
Beer's holding, § 5
does not prohibit preclearance of a redistricting plan enacted with
a discriminatory but nonretrogressive purpose. Pp. 328-341.
(a) In order to obtain preclearance, a covered jurisdiction must
establish that the proposed 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." The covered jurisdiction bears the
burden of persuasion on both points. See,
e. g., Bossier Parish
I, supra, at 478. In
Beer, the Court concluded that, in
the context of a § 5 vote-dilution claim, the phrase "abridging the
right to vote on account of race or color" limited the term
"effect" to retrogressive effects. 425 U. S., at 141. Appellants'
contention that in qualifying the term "purpose," the very same
phrase does
not impose a limitation to retrogression, but
means discrimination more generally, is untenable. See
BankAmerica Corp. v.
United States, 462 U. S. 122, 129.
Richmond v.
United States, 422 U. S. 358, 378-379,
distinguished. Appellants argue that subjecting both prongs to the
same limitation produces a purpose prong with a trivial reach,
covering only "incompetent retrogressors." If this were true-and if
it were adequate to justify giving the very same words different
meanings when qualifying "purpose" and "effect"there would be
instances in which this Court applied such a construction to the
innumerable statutes barring conduct with a particular "purpose or
effect," yet appellants are unable to cite a single case. Moreover,
the purpose prong has
value and effect even when it does not
cover conduct additional to that of a so-called incompetent
retrogressor: The Government need only refute a jurisdiction's
prima facie showing that a proposed voting change does not have a
retrogressive purpose, and need not counter the jurisdiction's
evidence regarding actual retrogressive effect. Although virtually
identical language in § 2(a) and the Fifteenth Amendment has been
read to refer not only to retrogression, but to discrimination more
generally, giving the language different meaning in § 5 is faithful
to the different context in which the term "abridging" is used.
Appellants' reading would exacerbate the "substantial" federalism
costs that the preclearance procedure already exacts,
Lopez
v.
Monterey County, 525 U. S. 266, 282,
perhaps to the extent
322
of raising concerns about § 5's constitutionality, see
Miller v.
Johnson, 515 U. S. 900, 926-927.
The Court's resolution of this issue renders it unnecessary to
address appellants' challenge to the District Court's factual
conclusion that there was no evidence of discriminatory but
nonretrogressive intent. Pp. 328-336.
(b) The Court rejects appellants' contention that,
notwithstanding that
Bossier Parish I explicitly "le[ft]
open for another day" the question whether § 5 extends to
discriminatory but nonretrogressive intent, 520 U. S., at 486, two
of this Court's prior decisions have already reached the conclusion
that it does. Dictum in
Beer, supra, at 141, and holding of
Pleasant Grove v.
United States, 479 U. S. 462,
distinguished. Pp. 337-341.
7 F. Supp. 2d 29, affirmed.
SCALIA, J., delivered the opinion of the Court, Part II of which
was unanimous, and Parts I, III, and IV of which were joined by
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ. THOMAS,
J., filed a concurring opinion,
post, p. 341. SOUTER, J.,
filed an opinion concurring in part and dissenting in part, in
which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p.
341. STEVENS, J., filed a dissenting opinion, in which GINSBURG,
J., joined,
post, p. 373. BREYER, J., filed a dissenting
opinion,
post, p. 374.
Paul R.
Q. Wolfson reargued the cause for appellant in
No. 98-405. On the briefs on reargument was Solicitor General
Waxman. With Mr. Wolfson on the briefs on the original argument
were Mr. Waxman, Acting Assistant Attorney General Lee, Deputy
Solicitor General Underwood, Mark L. Gross, and Louis E.
Peraertz.
Patricia A. Brannan reargued the cause for appellants in No.
98-406. With her on the briefs were John W Borkowski, Barbara R.
Arnwine, Thomas
J. Henderson, and Edward Still.
Michael A. Carvin reargued the cause for appellee in both
cases. With him on the brief were
David H. Thompson, Craig
S.
Lerner, and
Michael E. Rosman.
JUSTICE SCALIA delivered the opinion of the Court.
These cases present the question whether § 5 of the Voting
Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C.
323
§ 1973c, prohibits preclearance of a redistricting plan enacted
with a discriminatory but nonretrogressive purpose.
I
This is the second time the present cases are before us, and we
thus recite the facts and procedural history only in brief. Like
every other political subdivision of the State of Louisiana,
Bossier Parish, because of its history of discriminatory voting
practices, is a jurisdiction covered by § 5 of the Voting Rights
Act. See 42 U. S. C. §§ 1973c, 1973b(a), (b); 30 Fed. Reg. 9897
(1965). It is therefore prohibited from enacting any change in a
"voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting," without first
obtaining either administrative preclearance from the Attorney
General or judicial preclearance from the United States District
Court for the District of Columbia. 42 U. S. C. § 1973c.
Bossier Parish is governed by a 12-member Police Jury elected
from single-member districts for 4-year terms. In the early 1990's,
the Police Jury set out to redraw its electoral districts in order
to account for demographic changes reflected in the decennial
census. In 1991, it adopted a redistricting plan which, like the
plan then in effect, contained no majority-black districts,
although blacks made up approximately 20% of the parish's
population. On May 28, 1991, the Police Jury submitted its new
districting plan to the Attorney General; two months later, the
Attorney General granted preclearance.
The Bossier Parish School Board (Board) is constituted in the
same fashion as the Police Jury, and it too undertook to redraw its
districts after the 1990 census. During the course of that
redistricting, appellant-intervenor George Price, president of the
local chapter of the National Association for the Advancement of
Colored People (NAACP), proposed that the Board adopt a plan with
majority-black districts. In the fall of 1992, amid some
controversy, the
324
Board rejected Price's suggestion and adopted the Police Jury's
1991 redistricting plan as its own.
On January 4, 1993, the Board submitted its redistricting plan
to the Attorney General for preclearance. Although the Attorney
General had precleared the identical plan when submitted by the
Police Jury, she interposed a formal objection to the Board's plan,
asserting that "new information"-specifically, the NAACP plan
proposed by appellantintervenor Price-demonstrated that "black
residents are sufficiently numerous and geographically compact so
as to constitute a majority in two single-member districts." App.
to Juris. Statement in No. 98-405, p. 235a. The Attorney General
disclaimed any attempt to compel the Board to "adopt any particular
plan," but maintained that the Board was "not free to adopt a plan
that unnecessarily limits the opportunity for minority voters to
elect their candidates of choice."
Ibid.
After the Attorney General denied the Board's request for
reconsideration, the Board filed the present action for judicial
preclearance of the 1992 plan in the United States District Court
for the District of Columbia. Section 5 of the Voting Rights Act
authorizes preclearance of a proposed voting change that "does not
have the purpose and will not have the effect of denying or
abridging the right to vote on account of race or color." 42 U. S.
C. § 1973c. Before the District Court, appellants conceded that the
Board's plan did not have a prohibited "effect" under § 5, since it
did not worsen the position of minority voters. (In
Beer v.
United States, 425 U. S. 130 (1976), we
held that a plan has a prohibited "effect" only if it is
retrogressive.) Instead, appellants made two distinct claims.
First, they argued that preclearance should be denied because the
Board's plan, by not creating as many majority-black districts as
it should create, violated § 2 of the Voting Rights Act, which bars
discriminatory voting practices. Second, they contended that,
325
although the Board's plan would have no retrogressive effect, it
nonetheless violated § 5 because it was enacted for a
discriminatory "purpose."
The District Court granted preclearance.
Bossier Parish
School Bd. v.
Reno, 907 F. Supp. 434
(DC 1995).
As to the first of appellants' two claims, the District Court held
that it could not deny preclearance of a proposed voting change
under § 5 simply because the change violated § 2. Moreover, in
order to prevent the Government "[from doing] indirectly what it
cannot do directly," the District Court stated that it would "not
permit section 2 evidence to prove discriminatory purpose under
section 5."
Id., at 445. As to the second of appellants'
claims, the District Court concluded that the Board had borne its
burden of proving that the 1992 plan was adopted for two
legitimate, nondiscriminatory purposes: to assure prompt
preclearance (since the identical plan had been precleared for the
Police Jury), and to enable easy implementation (since the adopted
plan, unlike the NAACP's proposed plan, required no redrawing of
precinct lines).
Id., at 447. Appellants filed
jurisdictional statements in this Court, and we noted probable
jurisdiction.
Reno v.
Bossier Parish School Bd., 517
U. S. 1232 (1996).
On appeal, we agreed with the District Court that a proposed
voting change cannot be denied preclearance simply because it
violates § 2, but disagreed with the proposition that
all
evidence of a dilutive (but nonretrogressive) effect forbidden by §
2 was irrelevant to whether the Board enacted the plan with a
retrogressive purpose forbidden by § 5.
Reno v.
Bossier
Parish School Bd., 520 U. S. 471, 486-487
(1997) (Bossier Parish I). Since some language in the
District Court's opinion left us uncertain whether the court had in
fact applied that proposition in its decision, we vacated and
remanded for further proceedings as to the Board's purpose in
adopting the 1992 plan.
Id., at 486. In light of our
disposition, we left open the additional question "whether
326
the § 5 purpose inquiry ever extends beyond the search for
retrogressive intent."
Ibid. "The existence of such a
purpose," we said, "and its relevance to § 5, are issues to be
decided on remand."
Ibid.
On remand, the District Court, in a comparatively brief opinion
relying on, but clarifying, its extensive earlier opinion, again
granted preclearance. 7 F. Supp. 2d 29
(DC 1998). First, in
response to our invitation to address the existence of a
discriminatory but nonretrogressive purpose, the District Court
summarily concluded that "the record will not support a conclusion
that extends beyond the presence or absence of retrogressive
intent."
Id., at 31. It noted that one could "imagine a set
of facts that would establish a 'nonretrogressive, but nevertheless
discriminatory, purpose,' but those imagined facts are not present
here."
Ibid. The District Court therefore left open the
question that we had ourselves left open on remand: namely, whether
the § 5 purpose inquiry extends beyond the search for retrogressive
intent.
Second, the District Court considered, at greater length, how
any dilutive impact of the Board's plan bore on the question
whether the Board enacted the plan with a retrogressive intent. It
concluded, applying the multifactor test we articulated in
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S.
252 (1977), that allegations of dilutive effect and of
discriminatory animus were insufficient to establish retrogressive
intent. 7 F. Supp. 2d, at 31-32.
In their jurisdictional statements in this Court, appellants
contended, first, that the District Court's conclusion that there
was no evidence of discriminatory but nonretrogressive purpose was
clearly erroneous, and second, that § 5 of the Voting Rights Act
prohibits preclearance of a redistricting plan enacted with a
discriminatory but nonretrogressive purpose. Appellants did not
challenge the District Court's determination that there was no
evidence of retrogressive intent. We again noted probable
jurisdiction. 525 U. S. 1118 (1999).
327
II
Before proceeding to the merits, we must dispose of a challenge
to our jurisdiction. The Board contends that these cases are now
moot, since its 1992 plan "will never again be used for any
purpose." Motion to Dismiss or Affirm 9. Under Louisiana law,
school board members are elected to serve 4-year terms. La. Rev.
Stat. Ann. § 17:52(A) (West 1995). One month after appellants filed
the jurisdictional statements for this appeal, the scheduled 1998
election for the Board took place. The next scheduled election will
not occur until 2002, by which time, as appellants concede, the
data from the upcoming decennial census will be available and the
Board will be required by our "one-man-one-vote" precedents to have
a new apportionment plan in place. Accordingly, appellee argues,
the District Court's declaratory judgment with respect to the 1992
plan is no longer of any moment and the dispute no longer presents
a live "case or controversy" for purposes of Article III of the
Constitution.
Preiser v.
Newkirk, 422 U. S. 395, 401
(1975);
Mills v.
Green, 159 U. S. 651, 653
(1895).
Appellants posit several contingencies in which the Board's 1992
plan would be put to use-including resignation or death of one of
the 12 Board members before 2002, and failure to agree upon a
replacement plan for the 2002 election. They also assert that, if
we were to hold preclearance improper, they "could seek" an
injunction voiding the elections held under the 1992 plan and
ordering a special election, Brief for Appellants Price et al.
Opposing Motion to Dismiss or Affirm 3, and "might be entitled" to
such an injunction, Brief for Appellant Reno in Opposition to
Motion to Dismiss or Affirm 2. We need not pause to consider
whether the possibility of these somewhat speculative and uncertain
events suffices to keep these cases alive, since in at least one
respect the 1992 plan will have probable continuing effect: Absent
a successful subsequent challenge under § 2, it, rather than the
1980 predecessor plan-which contains quite
328
different voting districts-will serve as the baseline against
which appellee's next voting plan will be evaluated for the
purposes of preclearance. Whether (and precisely how) that future
plan represents a change from the baseline, and, if so, whether it
is retrogressive in effect, will depend on whether preclearance of
the 1992 plan was proper.
We turn, then, to the merits.
III
Appellants press the two claims initially raised in their
jurisdictional statements: first, that the District Court's factual
conclusion that there was no evidence of discriminatory but
nonretrogressive intent was clearly erroneous, and second, that § 5
of the Voting Rights Act prohibits preclearance of a redistricting
plan enacted with a discriminatory but nonretrogressive purpose.
Our resolution of the second claim renders it unnecessary to
address the first. When considered in light of our longstanding
interpretation of the "effect" prong of § 5 in its application to
vote-dilution claims, the language of § 5 leads to the conclusion
that the "purpose" prong of § 5 covers only retrogressive
dilution.
As noted earlier, in order to obtain preclearance under § 5, a
covered jurisdiction must demonstrate that the proposed 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." 42 U.
S. C. § 1973c. A covered jurisdiction, therefore, must make two
distinct showings: first, that the proposed change "does not have
the purpose ... of denying or abridging the right to vote on
account of race or color," and second, that the proposed change
"will not have the effect of denying or abridging the right to vote
on account of race or color." The covered jurisdiction bears the
burden of persuasion on both points. See
Bossier Parish I,
520 U. S., at 478 (judicial preclearance); 28 CFR § 51.52(a) (1999)
(administrative preclearance).
329
In
Beer v.
United States, 425 U. S. 130 (1976),
this Court addressed the meaning of the no-effect requirement in
the context of an allegation of vote dilution. The case presented
the question whether a reapportionment plan that would have a
discriminatory but nonretrogressive effect on the rights of black
voters should be denied preclearance. Reasoning that § 5 must be
read in light of its purpose of "insur[ing] that no
voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise," we held 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."
Id., at 141. In other words, we concluded that, in
the context of a § 5 challenge, the phrase "denying or abridging
the right to vote on account of race or color" -or more
specifically, in the context of a vote-dilution claim, the phrase
"abridging the right to vote on account of race or color"-limited
the term it qualified, "effect," to retrogressive effects.
Appellants contend that in qualifying the term "purpose," the
very same phrase does
not impose a limitation to
retrogression-i.
e., that the phrase "abridging the right to
vote on account of race or color" means retrogression when it
modifies "effect," but means discrimination more generally when it
modifies "purpose." We think this is simply an untenable
construction of the text, in effect recasting the phrase "does not
have the purpose and will not have the effect of
x" to read
"does not have the purpose of
y and will not have the effect
of
x." As we have in the past, we refuse to adopt a
construction that would attribute different meanings to the same
phrase in the same sentence, depending on which object it is
modifying. See
BankAmerica Corp. v.
United States,
462 U. S. 122,
129 (1983) (declining to give
330
different meanings to the phrase "other than" when it modified
"banks" and "common carriers" in the same clause).
Appellants point out that we did give the purpose prong of § 5 a
broader meaning than the effect prong in
Richmond v.
United States, 422 U. S. 358 (1975).
That case involved requested preclearance for a proposed annexation
that would have reduced the black population of the city of
Richmond, Virginia, from 52% to 42%. We concluded that, although
the annexation may have had the effect of creating a political unit
with a lower percentage of blacks, so long as it "fairly
reflect[ed] the strength of the Negro community as it exist[ed]
after the annexation" it did not violate § 5.
Id., at 371.
We reasoned that this interpretation of the effect prong of § 5 was
justified by the peculiar circumstances presented in annexation
cases:
"To hold otherwise would be either to forbid all such
annexations or to require, as the price for approval of the
annexation, that the black community be assigned the same
proportion of council seats as before, hence perhaps permanently
overrepresenting them and underrepresenting other elements in the
community, including the nonblack citizens in the annexed area. We
are unwilling to hold that Congress intended either consequence in
enacting § 5." Ibid.
We refused, however, to impose a similar limitation on § 5's
purpose prong, stating that preclearance could be denied when the
jurisdiction was acting with the purpose of effecting a percentage
reduction in the black population, even though it could not be
denied when the jurisdiction's action merely had that effect.
Id., at 378-379.
It must be acknowledged that
Richmond created a
discontinuity between the effect and purpose prongs of § 5. We
regard that, however, as nothing more than an
ex necessitate
limitation upon the effect prong in the particular context of
annexation-to avoid the invalidation of all annexations of
331
areas with a lower proportion of minority voters than the
annexing unit. The case certainly does not stand for the
proposition that the purpose and effect prongs have fundamentally
different meanings-the latter requiring retrogression, and the
former not-which is what is urged here. The approved
effect
of the redistricting in
Richmond, and the hypothetically
disapproved
purpose, were both retrogressive. We found it
necessary to make an exception to normal
retrogressive-effect principles, but not to normal
retrogressive-purpose principles, in order to permit routine
annexation. That sheds little light upon the issue before us
here.
Appellants' only textual justification for giving the purpose
and effect prongs different meanings is that to do otherwise "would
reduce the purpose prong of Section 5 to a trivial matter," Brief
for Federal Appellant on Reargument 13; would "effectively delet[e]
the 'purpose' prong," Reply Brief for Appellants Price et al. on
Reargument 3; and would give the purpose prong "a trivial reach,
limited to the case of the incompetent retrogressor," Reply Brief
for Federal Appellant 9. If this were true-and if it were adequate
to justify giving the very same words a different meaning when
qualifying "purpose" than when qualifying "effect" -one would
expect appellants to cite at least some instances in which this
Court applied such muscular construction to the innumerable
statutes barring conduct with a particular "purpose or effect."
See,
e. g., 7 U. S. C. § 192(d) (prohibiting sale of
any article "for the purpose or with the effect of manipulating or
controlling prices" in the meatpacking industry); 12 U. S. C. §
1467a(c)(1)(A) (barring savings and loan holding companies from
engaging in any activity on behalf of a savings association
subsidiary "for the purpose or with the effect of evading any law
or regulation applicable to such savings association"); 47 U. S. C.
§ 541(b)(3)(B) (1994 ed., Supp. III) (prohibiting cable franchising
authorities from imposing any requirement that "has
332
the purpose or effect of prohibiting, limiting, restricting, or
conditioning the provision of a telecommunications service by a
cable operator or an affiliate thereof"). They cite not a single
one, and we are aware of none.
It is true enough that, whenever Congress enacts a statute that
bars conduct having "the purpose or effect of
x," the
purpose prong has application entirely separate from that of the
effect prong only with regard to unlikely conduct that has "the
purpose of
x" but fails to have "the effect of
x"in
the present context, the conduct of a so-called "incompetent
retrogressor." The purpose prong has
value and effect,
however, even when it does not cover additional conduct. With
regard to conduct that has both "the purpose of
x" and "the
effect of
x," the Government need only prove that the
conduct at issue has "the purpose of
x" in order to prevail.
In the specific context of § 5, where the covered jurisdiction has
the burden of persuasion, the Government need only refute the
covered jurisdiction's prima facie showing that a proposed voting
change does not have a retrogressive purpose in order for
preclearance to be denied. When it can do so, it is spared the
necessity of countering the jurisdiction's evidence regarding
actual retrogressive effect-which, in vote-dilution cases, is often
a complex undertaking. This advantage, plus the ability to reach
malevolent incompetence, may not represent a massive addition to
the effect prong, but it is enough to justify the separate
existence of the purpose prong in this statute, and is no less than
what justifies the separate existence of such a provision in many
other laws.1
IJUSTICE SOUTER criticizes us for "assum[ing] that purpose is
easier to prove than effect ... in voting rights cases."
Post, at 358, n. 10 (opinion concurring in part and
dissenting in part). As is obvious from our discussion in text, we
do not suggest that purpose is
always easier to prove, but
simply that it may
sometimes be (which suffices to give
force to the "purpose" prong without the necessity of doing
violence to the English language). Indeed, JUSTICE SOUTER
acknowledges that "intent to dilute is conceptually simple, whereas
a dilutive abridgment-in-fact is not readily defined and identified
independently of dilutive intent."
Post, at 367.
333
At bottom, appellants' disagreement with our reading of § 5
rests not upon textual analysis, but upon their opposition to our
holding in
Beer. Although they do not explicitly contend
that
Beer should be overruled, they all but do so by arguing
that it would be "untenable" to conclude (as we did in
Beer)
that the phrase "abridging the right to vote on account of race or
color" refers only to retrogression in § 5, Reply Brief for Federal
Appellant on Reargument 1, in light of the fact that virtually
identical language elsewhere in the Voting Rights Act-and indeed,
in the Fifteenth Amendment-has never been read to refer only to
retrogression. See § 2(a) of the Voting Rights Act, 42 U. S. C. §
1973(a) ("No voting [practice] shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United
States to vote on account of race or color ... "); u. S. Const.,
Arndt. 15, § 1 ("The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of
servitude").2 The term "abridge," however-whose
2 Appellants also cite § 3(c) of the Voting Rights Act, which
provides, with regard to a court that has found a violation of the
right to vote guaranteed by the Fourteenth or Fifteenth Amendment,
that "the court ... shall retain jurisdiction for such period as it
may deem appropriate and during such period no voting [practice]
different from that in force or effect at the time the proceeding
was commenced shall be enforced unless and until the court finds
that such [practice] does not have the purpose and will not have
the effect of denying or abridging the right to vote on account of
race or color .... " 42 U. S. C. § 1973a(c). This provision does
not assist appellants' case because it is not at all clear that it
confers the power to deny approval to nonretrogressive
redistricting. That is to say, it may well contemplate that, once a
court has struck down an unconstitutional practice and granted
relief with regard to that practice, it may assume for that
jurisdiction a function identical to that of the District Court for
the District of Columbia in § 5 preclearance proceedings. This is
suggested by the fact that the State may avoid the court's
jurisdiction in this regard by obtaining preclearance from the
Attorney General; and that § 3(c), like § 5, explicitly leaves open
the possibility that a proposed change approved by the court can be
challenged as unconstitutional
334
core meaning is "shorten," see Webster's New International
Dictionary 7 (2d ed. 1950); American Heritage Dictionary 6 (3d ed.
1992)-necessarily entails a comparison. It makes no sense to
suggest that a voting practice "abridges" the right to vote without
some baseline with which to compare the practice. In § 5
preclearance proceedings-which uniquely deal only and specifically
with
changes in voting procedures-the baseline is the status
quo that is proposed to be changed: If the change "abridges the
right to vote" relative to the status quo, preclearance is denied,
and the status quo (however discriminatory
it may be)
remains in effect. In § 2 or Fifteenth Amendment proceedings, by
contrast, which involve not only changes but (much more commonly)
the status quo itself, the comparison must be made with a
hypothetical alternative: If the
status quo "results in [an]
abridgement of the right to vote" or "abridge[s] [the right to
vote]" relative to what the right to vote
ought to be, the
status quo itself must be changed. Our reading of "abridging" as
referring only to retrogression in § 5, but to discrimination more
generally in § 2 and the Fifteenth Amendment, is faithful to the
differing contexts in which the term is used.3
in a "subsequent action."
Ibid. We of course intimate no
holding on this point, but limit our conclusion to the nonprobative
character of § 3(c) with regard to the issue in the present
cases.
3 Even if § 5 did not have a different baseline than the
Fifteenth Amendment, appellants' argument that § 5 should be read
in parallel with the Fifteenth Amendment would fail for the simple
reason that we have never held that vote dilution violates the
Fifteenth Amendment. See
Voinovich v.
Quilter,
507 U. S. 146,
159 (1993) (citing
Beer v.
United States, 425 U. S. 130, 142-143,
n. 14 (1976)). Indeed, contrary to JUSTICE SOUTER'S assertion,
post, at 360, n. 11 (opinion concurring in part and
dissenting in part), we have never even "suggested" as much.
Gomillion v.
Lightfoot, 364 U. S. 339 (1960),
involved a proposal to redraw the boundaries of Tuskegee, Alabama,
so as to exclude all but 4 or 5 of its 400 black voters without
excluding a single white voter. See
id., at 341. Our
conclusion that the proposal would deny black voters the right to
vote in municipal elections, and therefore violated the Fifteenth
Amendment, had nothing to do with racial vote dilution, a concept
that does not appear in
335
In another argument that applies equally to our holding in
Beer, appellants object that our reading of § 5 would
require the District Court or Attorney General to preclear proposed
voting changes with a discriminatory effect or purpose, or even
with both. That strikes appellants as an inconceivable prospect
only because they refuse to accept the limited meaning that we have
said preclearance has in the vote-dilution context. It does
not represent approval of the voting change; it is nothing
more than a determination that the voting change is no more
dilutive than what it replaces, and therefore cannot be stopped in
advance under the extraordinary burden-shifting procedures of § 5,
but must be attacked through the normal means of a § 2 action. As
we have repeatedly noted, in vote-dilution cases § 5 prevents
nothing but backsliding, and preclearance under § 5 affirms nothing
but the absence of backsliding.
Bossier Parish I, 520 U. S.,
at 478;
Miller v.
Johnson, 515 U. S. 900, 926
(1995);
Beer, 425 U. S., at 141.4 This explains why the
our voting-rights opinions until nine years later. See
Allen v.
State Bd. of Elections, 393 U. S. 544, 569
(1969). As for the other case relied upon by JUSTICE SOUTER, the
plurality opinion in
Mobile v.
Bolden, 446 U. S. 55 (1980), not
only does that not suggest that the Fifteenth Amendment covers vote
dilution, it suggests the opposite, rejecting the appellees'
vote-dilution claim in the following terms: "The answer to the
appellees' argument is that ... their freedom to vote has not been
denied or abridged by anyone. The Fifteenth Amendment does not
entail the right to have Negro candidates elected .... Having found
that Negroes in Mobile 'register and vote without hindrance,' the
District Court and Court of Appeals were in error in believing that
the appellants invaded the protection of that Amendment in the
present case."
Id., at 65; see also
id., at 84, n. 3
(STEVENS, J., concurring in judgment) (characterizing plurality
opinion as concluding that "the Fifteenth Amendment applies only to
practices that directly affect access to the ballot").
4 In search of support for the argument that § 5 prevents not
just backsliding on vote dilution but all forms of vote dilution,
JUSTICE SOUTER embarks upon a lengthy expedition into legislative
history.
Post, at 362367 (opinion concurring in part and
dissenting in part). He returns emptyhanded, since he can point to
nothing suggesting that the Congress thought § 5 covered both
retrogressive and nonretrogressive
dilution. Indeed, it is
doubtful whether the Congress that passed the 1965 Voting
336
sole consequence of failing to obtain preclearance is
continuation of the status quo. To deny preclearance to a plan that
is
not retrogressive-no
matter how unconstitutional it
may be-would risk leaving in effect a status quo that is even
worse. For example, in the case of a voting change with a
discriminatory but nonretrogressive purpose and a discriminatory
but ameliorative effect, the result of denying preclearance would
be to preserve a status quo with more discriminatory effect than
the proposed change.
In sum, by suggesting that § 5 extends to discriminatory but
nonretrogressive vote-dilutive purposes, appellants ask us to do
what we declined to do in
Bossier Parish I: to blur the
distinction between § 2 and § 5 by "shift[ing] the focus of § 5
from nonretrogression to vote dilution, and ... chang[ing] the § 5
benchmark from a jurisdiction's existing plan to a hypothetical,
undiluted plan." 520 U. S., at 480. Such a reading would also
exacerbate the "substantial" federalism costs that the preclearance
procedure already exacts,
Lopez v.
Monterey County,
525 U. S. 266,
282 (1999), perhaps to the extent of raising concerns about § 5's
constitutionality, see
Miller, supra, at 926-927. Most
importantly, however, in light of our holding in
Beer,
appellants' reading finds no support in the language of § 5.5
Rights Act even had the practice of racial vote dilution in
mind. As JusTICE SOUTER acknowledges, this Court did not address
the concept until 1969, see
post, at 364, n. 13, and the
legislative history of the 1969 extension of the Act, quoted by
JUSTICE SOUTER, see
post, at 364-365, refers to at-large
elections and consolidation of counties as "new, unlawful ways to
diminish the Negroes' franchise" developed since passage of the
Act. H. R. Rep. No. 91-397, pp. 6-7 (1969).
5 JUSTICE SOUTER asserts that "[t]he Justice Department's
longstanding practice of refusing to preclear changes that it
determined to have an unconstitutionally discriminatory purpose,
both before and after
Beer," is entitled to deference.
Post, at 368 (opinion concurring in part and dissenting in
part); accord,
post, at 373 (STEVENS, J., dissenting). But
of course before
Beer the Justice Department took the
position that even the
effects prong was not limited, in
redistricting cases, to retrogression. Indeed, that position had
been the basis for its denial of preclearance in
337
IV
Notwithstanding the fact that
Bossier Parish I explicitly
"le[ft] open for another day" the question whether § 5 extends to
discriminatory but nonretrogressive intent, see 520 U. S., at 486,
appellants contend that two of this Court's prior decisions have
already reached the conclusion that it does. First, appellants note
that, in
Beer, this 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. Appellants
contend that this suggests that, at least in some cases in which
the covered jurisdiction acts with a discriminatory but
nonretrogressive dilutive purpose, the covered jurisdiction should
be denied preclearance because it is acting unconstitutionally.
We think that a most implausible interpretation. At the time
Beer was decided, it had not been established that
discriminatory purpose as well as discriminatory effect was
necessary for a constitutional violation, compare
White v.
Regester, 412
U. S. 755, 765-766 (1973), with
Washington v.
Davis, 426 U.
S. 229, 238-245 (1976). If the statement in
Beer had
meant what appellants suggest, it would either have been
anticipating (without argument) that later holding, or else would
have been gutting
Beer's holding (since a showing of
discriminatory but nonretrogressive effect
would have been a
constitutional violation and
would, despite the holding of
Beer, have sufficed to deny preclearance). A much more
plausible explanation of the statement is that it referred to a
constitutional violation
other than vote dilu-
Beer, see 425 U. S., at 136, and was argued in its brief
before us as the basis for sustaining the District Court's denial,
see Brief for United States in
Beer v.
United States,
O. T. 1975, No. 73-1869, pp. 17-18. We rejected that position as to
the effects prong, and there is even more reason to reject it in
the present cases, whose outcomes depend as much upon the
implication of one of our prior cases (as to which we owe the
Department no deference) as upon a raw interpretation of the
statute.
338
tion-and, more specifically, a violation consisting of a
"denial" of the right to vote, rather than an "abridgement."
Although in the context of denial claims, no less than in the
context of abridgment claims, the antibacksliding rationale for § 5
(and its effect of avoiding preservation of an even worse status
quo) suggests that retrogression should again be the criterion,
arguably in that context the word "deny" (unlike the word
"abridge") does not import a comparison with the status quo.6
In any event, it is entirely clear that the statement in
Beer was pure dictum: The Government had made no contention
that the proposed reapportionment at issue was unconstitutional.
425 U. S., at 142, n. 14. And though we have quoted the dictum in
subsequent cases, we have never actually applied it to deny
preclearance. See
Bossier Parish I, supra, at
481;
Shaw v.
Hunt, 517 U. S. 899, 912
(1996) (Shaw II); Miller, 515 U. S., at 924. We have
made clear, on the other hand, what we reaffirm today: that
proceedings to preclear apportionment schemes and proceedings to
consider the constitutionality of apportionment schemes are
entirely distinct.
"Although the Court concluded that the redistricting scheme at
issue in Beer was nonretrogressive, it
6 JUSTICE BREYER suggests that "[i]t seems obvious ... that if
Mississippi had enacted its 'moral character' requirement in 1966
(after enactment of the Voting Rights Act), a court applying § 5
would have found 'the purpose ... of denying or abridging the right
to vote on account of race,' even if Mississippi had intended to
permit, say, 0.4%, rather than 0.3%, of the black voting age
population of Forrest County to register."
Post, at 376
(dissenting opinion). As we note above, however, our holding today
does not extend to violations consisting of an outright "denial" of
an individual's right to vote, as opposed to an "abridgement" as in
dilution cases. In any event, if Mississippi had attempted to enact
a "moral character" requirement in 1966, it would have been
precluded from doing so under § 4, which bars certain types of
voting tests and devices altogether, and the issue of § 5
preclearance would therefore never have arisen. See 42 U. S. C. §§
1973b(a)(1), (c).
339
did not hold that the plan, for that reason, was immune from
constitutional challenge .... Indeed, the Voting Rights Act and our
case law make clear that a reapportionment plan that
satisfies § 5 still may be enjoined as unconstitutional."
Shaw v. Reno, 509 U. S. 630, 654
(1993) (Shaw I) (emphasis added).
See also
City of Lockhart v.
United States,
460 U. S. 125,
134 (1983) (describing the holding of
Beer as follows:
"Although the new plan may have remained discriminatory, it
nevertheless was not a regressive change .... Since the new plan
did not increase the degree of discrimination against blacks, it
was entitled to § 5 preclearance");
Allen v.
State Bd. of
Elections, 393 U.
S. 544, 549-550 (1969) ("Once the State has successfully
complied with the § 5 approval requirements, private parties may
enjoin the enforcement of the new enactment only in traditional
suits attacking its constitutionality ... "). As we noted in
Shaw I, § 5 explicitly states that neither administrative
nor judicial preclearance "'shall bar a subsequent action to enjoin
enforcement' of [a change in voting practice]." 509 U. S., at 654
(quoting 42 U. S. C. § 1973c). That fully available remedy leaves
us untroubled by the possibility that § 5 could produce
preclearance of an unconstitutionally dilutive redistricting
plan.
Second, appellants contend that we denied preclearance on the
basis of a discriminatory but nonretrogressive purpose in
Pleasant Grove v.
United States, 479 U. S. 462 (1987).
That case involved an unusual fact pattern. The city of Pleasant
Grove, Alabama-which, at the time of the District Court's decision,
had 32 black inhabitants, none of whom was registered to vote and
of whose existence city officials appear to have been unaware,
id., at 465, n. 2sought to annex two parcels of land, one
inhabited by a few whites, and the other vacant but likely to be
inhabited by whites in the near future. We upheld the District
Court's conclusion that the city acted with a discriminatory
purpose in annexing the land, rejecting the city's contention
340
that it could not have done so because it was unaware of the
existence of any black voters against whom it could have intended
to discriminate:
"[The city's] argument is based on the incorrect assumption that
an impermissible purpose under § 5 can relate only to present
circumstances. Section 5 looks not only to the present effects of
changes, but to their future effects as well .... Likewise, an
impermissible purpose under § 5 may relate to anticipated as well
as present circumstances.
"It is quite plausible to see [the annexation] as motivated, in
part, by the impermissible purpose of minimizing future black
voting strength .... This is just as impermissible a purpose as the
dilution of present black voting strength." Id., at 471-472
(citations and footnotes omitted).
Appellants assert that we must have viewed the city's purpose as
discriminatory but nonretrogressive because, as the city noted in
contending that it lacked even a discriminatory purpose, the city
could not have been acting to worsen the voting strength of any
present black residents, since there were no black voters at the
time. However, as the above quoted passage suggests, we did not
hold that the purpose prong of § 5 extends beyond retrogression,
but rather held that a jurisdiction with no minority voters can
have a retrogressive purpose, at the present time, by intending to
worsen the voting strength of
future minority voters. Put
another way, our holding in
Pleasant Grove had nothing to do
with the question whether, to justify the denial of preclearance on
the basis of the purpose prong, the purpose must be retrogressive;
instead, it involved the question whether the purpose must be to
achieve retrogression at once or could include, in the case of a
jurisdiction with no present minority voters, retrogression with
regard to operation of the proposed plan (as compared with
341
operation of the status quo) against new minority voters in the
future. Like the dictum from
Beer, therefore,
Pleasant
Grove is simply inapposite here.
***
In light of the language of § 5 and our prior holding in
Beer, we hold that § 5 does not prohibit preclearance of a
redistricting plan enacted with a discriminatory but
nonretrogressive purpose. Accordingly, the judgment of the District
Court is affirmed.
It is so ordered.
JUSTICE THOMAS, concurring.
The Bossier Parish School Board first sought preclearance of the
redistricting plan at issue in this litigation almost seven years
ago. The Justice Department and private appellants opposed that
effort, arguing throughout this litigation that a "safe"
majority-minority district is necessary to ensure the election of a
black school board member. Ironically, while this litigation was
pending, three blacks were elected from majority-white districts to
serve on the Bossier Parish School Board. Although these election
results are not part of the record, they vividly illustrate the
fact that the federal intervention that spawned this litigation was
unnecessary.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, concurring in part and dissenting in part.
Under § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c,
a jurisdiction required to obtain preclearance of changes to its
voting laws must show that a proposed amendment will not have the
effect, and does not reflect a purpose, to deny or abridge the vote
on account of race. I respectfully dissent 1 from the Court's
holding that § 5 is indifferent
1 I agree with the Court's conclusion on the matter of
mootness.
342
to a racially discriminatory purpose so long as a change in
voting law is not meant to diminish minority voting strength below
its existing level. It is true that to day's decision has a
precursor of sorts in
Beer v.
United States, 425 U. S. 130 (1976),
which holds that the only anticipated redistricting effect
sufficient to bar preclearance is retrogression in minority voting
strength, however dilutive of minority voting power a redistricting
plan may otherwise be. But if today's decision achieves a symmetry
with
Beer, the achievement is merely one of well-matched
error. The Court was mistaken in
Beer when it restricted the
effect prong of § 5 to retrogression, and the Court is even more
wrong today when it limits the clear text of § 5 to the
corresponding retrogressive purpose. Although I adhere to the
strong policy of respecting precedent in statutory interpretation
and so would not reexamine
Beer, that policy does not demand
that recognized error be compounded indefinitely, and the Court's
prior mistake about the meaning of the effects requirement of § 5
should not be expanded by an even more erroneous interpretation of
the scope of the section's purpose prong.
The Court's determination that Congress intended preclearance of
a plan not shown to be free of dilutive intent (let alone a plan
shown to be intentionally discriminatory) is not, however, merely
erroneous. It is also highly unconvincing. The evidence in these
very cases shows that the Bossier Parish School Board (School Board
or Board) acted with intent to dilute the black vote, just as it
acted with that same intent through decades of resistance to a
judicial desegregation order. The record illustrates exactly the
sort of relentless bad faith on the part of majority-white voters
in covered jurisdictions that led to the enactment of § 5. The
evidence all but poses the question why Congress would ever have
meant to permit preclearance of such a plan, and it all but invites
the answer that Congress could hardly have intended any such thing.
While the evidence goes substantially unnoticed on the Court's
narrow reading of the purpose
343
prong of § 5, it is not only crucial to my resolution of these
cases, but insistent in the way it points up the implausibility of
the Court's reading of purpose under § 5.
I
In
Arlington Heights v.
Metropolitan Housing
Development Corp., 429 U. S. 252 (1977),
this Court set out a checklist of considerations for assessing
evidence going to discriminatory intent: the historical background
of a challenged decision, its relative impact on minorities,
specific antecedent events, departures from normal procedures, and
contemporary statements of decisionmakers.
Id., at 266-268.
We directed the District Court to follow that checklist in
enquiring into discriminatory intent following remand in these
cases,
Reno v.
Bossier Parish School Bd., 520 U. S. 471, 488
(1997) (Bossier Parish I). The
Arlington
Heights enquiry reveals the following account of the School
Board's redistricting activity and of the character of the parish
in which it occurred.
The parish's institution of general governance is known as the
Police Jury, a board of representatives chosen from districts
within the parish. After the 1990 census showed a numerical
malapportionment among those districts, the Police Jurors prepared
a revised districting plan, which they submitted to the Attorney
General of the United States with a request for the preclearance
necessary under § 5 of the Voting Rights Act before the parish, a
covered jurisdiction, could modify its voting district lines. Based
on information then available to the Department of Justice, the
Attorney General understood the parish to have shown that the new
plan would not have the effect and did not have the purpose of
abridging the voting rights of the parish's 20% black population,
and the revised Police Jury plan received preclearance in the
summer of 1991. In fact, as the parish's School Board has now
admitted, the Police Jury plan thus approved dilutes the voting
strength of the minority popula-
344
tion, Plaintiff's Brief on Remand 12; that is, the plan
discriminates by abridging the rights of minority voters to
participate in the political process and elect candidates of their
choice.
Thornburg v.
Gingles, 478 U. S. 30, 46-47
(1986).
The same population shifts that required the Police Jury to
reapportion required the elected School Board to do the same.
Although the Board had approached the Police Jury about the
possibility of devising a joint plan of districts common to both
Board and jury, the jury rebuffed the Board, see App. to Juris.
Statement 172a (Stipulations 83-84), and the Board was forced to go
it alone. History provides a good indication of what might have
been expected from this endeavor.
As the parties have stipulated, the School Board had applied its
energies for decades in an effort to "limit or evade" its
obligation to desegregate the parish schools.
Id., at 216a
(Stipulation 237). When the Board first received a court order to
desegregate the parish's schools in the mid-1960's, it responded
with the flagrantly defiant tactics of that era, see
id., at
216a-217a (Stipulations 236-237), and the record discloses the
Board's continuing obstructiveness down to the time covered by
these cases. During the 1980's, the degree of racial polarization
in the makeup of the parish's schools rose,
id., at 218a
(Stipulations 241-243), and the disproportionate assignment of
black faculty to predominantly black schools increased,
id.,
at 217a-218a (Stipulation 240). While the parish's superintendent
testified that the assignment of black faculty to predominantly
black schools came in response to black parents' requests for
positive black examples for their children, see App. 289, the black
leaders who testified in these cases uniformly rejected that claim
and insisted that, in accord with the parish's desegregation
decree, black faculty were to be distributed throughout the
parish's schools, to serve as models for white, as well as black,
students, see
id., at 326-327; 2 Tr. 126-128.
345
Other evidence of the Board's intransigence on race centers on
the particular terms of the integration decree that since 1970 has
required the Board to maintain a "Bi-Racial Advisory Review
Committee" made up of an equal number of black and white members in
order to "'recommend to the ... Board ways to attain and maintain a
unitary system and to improve education in the parish.'" App. to
Juris. Statement in No. 98-405, p. 182a (Stipulation 111)
(hereinafter App. to Juris. Statement). Although the Board
represented to the District Court overseeing desegregation that the
committee was in place, see 2 Tr. 16 (testimony of Superintendent
William T. Lewis), the committee actually met only two or three
times in the mid-1970's and then with only its black members in
attendance, see App. to Juris. Statement 183a (Stipulation 112). In
1993, the Board set up a short-lived "Community Affairs Committee"
to replace the "Bi-Racial Committee." Despite the Board's
resolution charging the committee "'with the responsibility of
investigating, consulting and advising the court and school board
periodically with respect to all matters pertinent to the retention
[sic] of a unitary school system,'"
ibid.
(Stipulation 114), the Board disbanded the committee after only
three months because, as a leading Board member put it, "'the tone
of the committee made up of the minority members of the committee
quickly turned toward becoming involved in policy,'"
id., at
184a (Stipulation 116). "Policy," however, was inevitably
implicated by the committee's purpose, and the subjects of its
recommendations (such as methods for more effective recruitment of
black teachers and their placement throughout the school system in
accord with the terms of the desegregation decree, see
id.,
at 183a-184a (Stipulation 115)) fell squarely within its mandate.
It is thus unsurprising that the Board has not achieved a unitary
school system and remains under court order to this day. See
id., at 217a (Stipulation 239); App. 139 (testimony of S. P.
Davis).
346
About the time the Board appointed its "Community Affairs
Committee," it sought preclearance under § 5 from the Attorney
General for the redistricting plan before us now. The course of the
Board's redistricting efforts tell us much about what it had in
mind when it proposed its plan. Following the rebuff from the
Police Jury, the Board was able to follow a relaxed redistricting
timetable, there being no Board elections scheduled before 1994.
While the Board could simply have adopted the Police Jury plan once
the Attorney General had precleared it, the Board did not do so,
App. to Juris. Statement 147a (Stipulation 11), despite just such a
proposal from one Board member at the Board's September 5, 1991,
meeting. No action was then taken on the proposal,
id., at
174a (Stipulations 89-90), and although the Board issued no
explanation for its inaction, it is noteworthy that the jury plan
ignored some of the Board's customary districting concerns. Whereas
one of those concerns was incumbency protection, see App. 251; cf.
App. to Juris. Statement 152a (Stipulation 26), the jury plan would
have pitted two pairs of incumbents against each other and created
two districts in which no incumbent resided,
id., at
181a-182a (Stipulation 109).2 The jury plan disregarded school
attendance zones, and even included two districts containing no
schools.
Id., at 174a, 151a, 191a (Stipulations 88, 24,
141). The jury plan, moreover, called for a total variation in
district populations exceeding the standard normally used to gauge
satisfaction of the "one person, one vote" principle, see
id., at 162a-163a (Stipulation 58); App. 231-232; 1 Tr. 147,
four of its districts failed the standard measure of compactness
used by the Board's own cartographer,
id., at 174-176,
2 While two of the incumbents were considering stepping down by
the time the Board subsequently adopted the plan, at least one of
those decisions was anything but firm. See App. 103; 4 Record, Doc.
No. 72, in Civ. Action No. 94-1495 (D. D.
C.), pp. 60-61
(joint designations of portions of deposition of David Harvey); 1
Tr. 85.
347
and one of its districts contained noncontiguous elements,
App.234-235.
In addressing the need to devise a plan of its own, the Board
hired the same redistricting consultant who had advised the Police
Jury, Gary Joiner. Joiner and the Board members (according to
Joiner's testimony) were perfectly aware of their responsibility to
avoid vote dilution in accordance with the Voting Rights Act, see
Record, Doc. No. 38 (direct testimony of Joiner 5), and he
estimated that it would take him between 200 to 250 hours to devise
a plan for the Board. The Board then spent nearly a year doing
little in public about redistricting, while its members met in
private with Joiner to consider alternatives. In March 1992, George
Price, president of the parish's branch of the N ational
Association for the Advancement of Colored People (NAACP), wrote to
the superintendent of parish schools asking for a chance to play
some role in the redistricting process. App. 184. Although the
superintendent passed the letter on to the Board, the Board took no
action, and neither the superintendent nor the Board even responded
to Price's request. App. to Juris. Statement 175a (Stipulation 93).
In August, Price wrote again, this time in concert with a number of
leaders of black community organizations, again seeking an
opportunity to express views about the redistricting process, as
well as about a number of Board policies bearing on school
desegregation. App. 187-189; see also App. to Juris. Statement 175a
(Stipulation 94). Once again the Board made no response.
Being frustrated by the Board's lack of responsiveness, Price
then asked for help from the national NAACP's Redistricting
Project, which sent him a map showing how two compact
majority-black districts might be drawn in the parish.
Id.,
at 177a (Stipulation 98). When Price showed the map to a school
district official, he was told it was unacceptable because it
failed to show all 12 districts. At Price's request, the
Redistricting Project then provided a
348
plan showing all 12 districts, which Price presented to the
Board at its September 3, 1992, meeting, explaining that it showed
the possibility of drawing majority-black districts.
Id., at
177a-178a (Stipulations 99-100). Several Board members said they
could not consider the NAACP plan unless it was presented on a
larger map,
id., at 178a (Stipulation 100), and both the
Board's cartographer and its legal advisor, the parish district
attorney, dismissed the plan out of hand because it required
precinct splits,
id., at 179a (Stipulation 102).
There is evidence that other implications of the NAACP proposal
were objectionable to the Board. According to one black leader,
Board member Henry Burns told him that while he personally favored
black representation on the Board, a number of other Board members
opposed the idea.3 App.142. According to George Price, Board member
Barry Musgrove told him that the Board was hostile to the creation
of a majority-black district.
Id., at 182.4
Although the NAACP plan received no further public
consideration, the pace of public redistricting activity suddenly
speeded up. At the Board's September 17, 1992, meeting, without
asking Joiner to address the possibility of creating any
majority-black district, the Board abruptly passed a statement of
intent to adopt the Police Jury plan. App. to Juris. Statement
179a-180a (Stipulation 106). At a public
3 One other Board member, Marguerite Hudson, when asked to
explain why two of the schools in Plain Dealing, one of the
parish's towns, were predominantly black, stated: "[T]hose people
love to live in Plain Dealing .... And most of them don't want to
get a big job, they would just rather stay out there in the
country, and stay on Welfare, and stay in Plain Dealing." App.
118.
4 Musgrove denied making the statement. See 1 Tr. 56. If, as the
District Court majority suggested, the significance of the latter
statement is uncertain, see
Bossier Parish School Bd. v.
Reno, 907 F. Supp. 434, 448 (DC 1995)
(Bossier Parish
I), it was tantamount to opposition to the most obvious cure
for the admitted dilution; there was in any event nothing ambiguous
about the Burns statement.
349
hearing on the plan one week later, attended by an overflow
crowd, a number of black voters spoke against the plan, and Price
presented the Board with a petition bearing over 500 signatures
urging consideration of minority concerns. No one spoke in favor of
the plan,
Bossier Parish I, 907 F. Supp. 434, 439
(DC
1995), and Price explained to the Board that preclearance of the
jury plan for use by the Police Jury was no guarantee of
preclearance of the same plan for the Board. App. to Juris.
Statement 180a-181a (Stipulation 108). Nonetheless, at its October
1 meeting, the voting members of the Board unanimously adopted the
Police Jury plan, with one member absent and the Board's only black
member (who had been appointed just two weeks earlier to fill a
vacancy) abstaining.
Id., at 181a-182a (Stipulation 109).
The Board did not submit the plan for preclearance by the Attorney
General until January 4, 1993.
Id., at 182a (Stipulation
110).
II
The significance of the record under § 5 is enhanced by
examining in more detail several matters already mentioned as free
from dispute, by testing some of the Board's stated reasons for
refusing to consider any NAACP plan, and by looking critically at
the District Court's reasons for resolving disputed issues in the
School Board's favor.
A
The parties stipulate that for decades before this redistricting
the Board had sought to "limit or evade" its obligation to end
segregation in its schools, an obligation specifically imposed by
Court order nearly 35 years ago and not yet fulfilled. The Board
has also conceded the discriminatory impact of the Police Jury plan
in falling "more heavily on blacks than on whites," Plaintiff's
Brief on Remand in Civ. Action No. 94-1495 (D. D.
C.), p.12,
and in diluting "black voting strength,"
id., at 21. Even
without the stipulated history, the conceded dilution would be
evidence of a corre-
350
spondingly discriminatory intent. With the history, the
implication of intent speaks louder, and it grows more forceful
still after a closer look at two aspects of the dilutive impact of
the Police Jury plan.
First, the plan includes no majority-black districts even though
residential and voting patterns in Bossier Parish meet the three
conditions we identified in
Thornburg v.
Gingles, 478
U. S., at 50-51, as opening the door to drawing majority-minority
districts to put minority voters on an equal footing with others.
The first
Gingles condition is that "the minority group must
be able to demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a single-member
district."
Id., at 50. The Board does not dispute that black
voters in Bossier Parish satisfy this criterion. The Board joined
in a stipulation of the parties that in 1991, "it was obvious that
a reasonably compact black-majority district could be drawn within
Bossier City," App. to Juris. Statement 154a-155a (Stipulation 36);
see also 1 Tr. 60 (statement of Board member Barry Musgrove), and
that the NAACP plan demonstrated that two such districts could have
been drawn in the parish, see App. to Juris. Statement 192a
(Stipulation 143).5 As to the second and third
Gingles
conditions, that the minority population be politically cohesive
and that the majority-white block voting be enough to defeat the
minority's preferred candidate, see
Gingles, supra, at 51,
the Government introduced expert testimony showing such
polarization in Bossier Parish's voting patterns. See App. to
Juris. Statement 201a-
5 While the cartographer hired by the Board stated during the
redistricting process that the parish's black population was too
dispersed to draw a majority-black district, he later acknowledged
that in fact two such districts could be drawn, see App. to Juris.
Statement 160a161a (Stipulations 52, 53), and not only the original
NAACP plans but also the Cooper Plans, two alternative plans
developed by an expert for the defendant-intervenors, demonstrated
as much, see App. 238 (Cooper Plans); App. to Juris. Statement 193a
(Stipulation 147).
351
207a (Stipulations 181-196); App. 163-173 (declaration of Dr.
Richard Engstrom). While acknowledging the somewhat limited data
available for analysis, the expert concluded that "African American
voters are likely to have a realistic opportunity to elect
candidates of their choice to the ... Board only in districts in
which they constitute a majority of the voting age population."
Id., at 174.6
Second, the Police Jury plan diluted black votes by dividing
neighboring black communities with common interests in and around
at least two of the Parish's municipalities, thereby avoiding the
creation of a majority-black district.7 See
id., at 154-156
(declaration of George J. Castille III);
id., at 141
(testimony of S. P. Davis). Even the Board's own cartographer
conceded that one of these instances "'appear[edJ''' to constitute"
'fracturing,'" App. to Juris. Statement 191a (Stipulation 138),
which he defined as "divid[ing] a 'population that has a
traditional cohesiveness, lives in the same general area, [and] has
a lot of commonalties' ... with '[the] intent to ... fracture that
population into adjoining white districts,'"
id., at
189a-190a (Stipulation 133).
6 The parties agreed that black candidates for other offices
have been able to win from majority-white districts in the parish,
see
id., at 201a (Stipulation 180), but those instances all
involved districts in which the presence of an Air Force base, see
id., at 206a-207a (Stipulation 196), meant both that the
effective percentage of black voters was considerably higher than
the raw figures suggested and, in the view of all the successful
black candidates, that the degree of hostility to black candidates
among white voters was lower than in the rest of the parish, see
App. 131-132 (statement of Jeff Darby), 133-134 (statement of
Jerome Darby), 143-144 (statement of Johnny Gipson).
7 Counsel for the Board suggested in cross-examining one of the
Government's experts that one of the instances of dividing black
communities arose from a state-law prohibition on the Board's
"split[ting] existing corporate lines." 2 Tr. 189. He offered no
authority for that proposition. But in any case, the example the
expert gave did not involve dividing a municipality, but including
in a single district areas both within the municipality and outside
it.
352
B
The Board's cartographer and lawyer objected that the NAACP plan
was unacceptable because it split precincts in violation of state
law. And yet the Board concedes that school boards were free to
seek precinct changes from the police juries of their parishes, as
they often successfully did. See
id., at 150a-151a
(Stipulations 22-23). One of the Government's experts, see App.
214, 217, 354, and the Board's own cartographic consultant, see
App. to Juris. Statement 151a (Stipulation 23), acknowledged this
practice. Indeed, the parties agree that Joiner advised the Board
about the option of going to the Police Jury for precinct changes,
see
id., at 174a (Stipulation 89); see also
id., at
179a (Stipulation 102), but that the Board never asked him to
pursue that possibility, see
id., at 188a (Stipulation
128).8 Judge Kessler in the District Court was therefore surely
correct that the Board's claimed inability to divide precincts was
no genuine obstacle to a plan with a majority-black district. See
Bossier Parish
I, 907 F. Supp., at 460-461 (opinion
concurring in part and dissenting in part).
8 The District Court majority stated that it was not merely the
fact that the NAACP plan required precinct splits, but that it
required a large number of splits that made it unappealing. This
claim is untenable for several reasons. First, again it assumes
that the act to be explained is the rejection of the NAACP plan
rather than the adoption of the Police Jury plan. While the NAACP
plan required 46 precinct splits, see App. to Juris. Statement
194a-195a (Stipulation 151), the Cooper II plan, which also
included two majority-black districts meeting traditional
districting criteria, required only 27,
ibid., and the
establishment of a single majority-black district would have
required just 14, see App. 269-270, 277. Second, and more
importantly, the Board's cartographer and lawyer stated that they
told the Board the NAACP plan was unacceptable because it split any
precincts at all, not because it split lots of them, see App. to
Juris. Statement 179a (Stipulation 102), and a leading supporter of
the Police Jury plan on the Board, see 1 Tr. 129, and the Board's
interim black member at the time of redistricting, see App. 130,
agree on that score.
353
It becomes all the clearer that the prospect of splitting
precincts was no genuine reason to reject the NAACP plan (or
otherwise to refuse to consider creating any majorityblack
districts) when one realizes that from early on in the Board's
redistricting process it gave serious thought to adopting a plan
that would have required just such precinct splits. When the Board
hired Joiner as its cartographer in May 1991, his estimate of 200
to 250 hours to prepare a plan for the Board, see App. to Juris.
Statement 173a (Stipulation 86), indicated that there was no intent
simply to borrow the recently devised Police Jury plan or to build
on the precincts established by the Police Jury, a possibility that
Joiner thought could be explored in "[s]everal hours at least,"
App. 271. It seems obvious that from the start the Board expected
its plan to require precinct splitting, and Joiner acknowledged in
his testimony that any plan "as strong as" the Police Jury plan in
terms of traditional districting criteria would require precinct
splits.
Ibid. Splitting precincts only became an insuperable
obstacle once the NAACP made its proposal to create majority-black
districts.
C 1
Despite its stated view that the record would not support a
conclusion of nonretrogressive discriminatory intent, the District
Court majority listed a series of "allegedly dilutive impacts" said
to point to discriminatory intent: "[t]hat some of the new
districts have no schools, that the plan ignores attendance
boundaries, that it does not respect communities of interest, that
there is one outlandishly large district, that several of them are
not compact, that there is a lack of contiguity, and that the
population deviations resulting from the jury plan are greater than
the limits (± 5%) imposed by Louisiana law." 7 F. Supp. 2d 29, 32
(DC 1998) (Bossier Parish II). The District Court
found this evidence
354
"too theoretical, and too attenuated," to be probative of
retrogressive intent in the absence of corroborating evidence of a
"deliberate attempt."
Ibid. But whatever the force of such
evidence may be on the issue of intent to cause retrogression,
there is nothing "theoretical" or "attenuated" in its significance
as showing intent to dilute generally.
2
If we take the District Court opinions in
Bossier Parish
I and
Bossier Parish II together and treat the court's §
5 discussions as covering nonretrogressive discriminatory intent,
it is clear that the court rested on two reasons for finding that
the plan's dilutive effect could not support an inference of
nonretrogressive discriminatory intent. First, the court thought
any such inference inconsistent with the view expressed in
Miller v.
Johnson, 515 U. S. 900, 924
(1995), that a refusal to adopt a plan to maximize the number of
majority-minority districts is insufficient alone to support an
inference of intentional discrimination.
Miller is not on
point, however. In
Miller, Georgia had already adopted a
plan that clearly improved the position of minority voters by
establishing two majority-black districts. The question was simply
whether the State's refusal to create a third betrayed
discriminatory intent.
Id., at 906-908, 923-924. In these
cases, the issue of inferred intent did not arise upon rejection of
a plan maximizing the number of majorityblack districts after a
concededly ameliorative plan had already been adopted; the issue
arose on the Board's refusal to consider a plan with any
majority-black districts when more than one such district was
possible under
Gingles. The issue here is not whether
Bossier Parish betrayed a discriminatory purpose in refusing to
create the maximum number of majority-black districts, see
Bossier Parish II, supra, at 33 (Silberman, J., concurring),
but simply whether it was significant that the parish refused to
consider creating a majority-black district at all. The refusal
points to a dis-
355
criminatory intent that the refusal to maximize in
Miller
v.
Johnson did not show.
The District Court's second ground for discounting the evidence
of intent inherent in the Police Jury plan's dilutive effect was
its finding that the Board had legitimate, nondiscriminatory
reasons for approving the plan. The evidence, however, is powerful
in showing that the Board had no such reasons. As I have already
noted, the Board's respect for existing precinct lines was
apparently pretextual. The other supposedly legitimate reason for
the Board's choice, that the Police Jury was a safe harbor under §
5, is equally unlikely. If the Police Jury plan was a safe harbor,
it had been safe from the day the Attorney General precleared it
for the Police Jury, whereas the Board ignored it for more than a
year after that preclearance. Interest in the Police Jury plan
developed only after pressure from Price and the NAACP had
intensified to the point that the redistricting process would have
to be concluded promptly if the minority proposals were not to be
considered. The Police Jury, therefore, became an attractive harbor
only when it seemed to offer safety from demands for a fair
reflection of minority voting strength. It was chosen by a Board,
described by the District Court majority as possessing a "tenacious
determination to maintain the status quo,"
Bossier Parish II,
supra, at 32, and the only fair inference is that when the
Board suddenly embraced the Police Jury plan it was running true to
form.9
9 My conclusion indicates my disagreement with JUSTICE THOMAS'S
concurring opinion. The factual predicate for raising and resolving
the issue of the scope of discriminatory intent relevant under § 5
is a subject of the Board's obligation to produce evidence and the
District Court's obligation to make findings, and nothing in the
conduct of the Justice Department has impeded either the Board or
the court from addressing this evidentiary issue. The fact that
black members have been elected to the Board is outside the record
and is no more before us than evidence showing the extent to which
the particular members were the choices of the minority voters who
have suffered the conceded dilution.
356
D
In sum, for decades the School Board manifested sedulous
resistance to the constitutional obligation to desegregate parish
schools, which have never attained unitary status and are still
subject to court order. When faced with the need to act alone in
redrawing its voting districts, the Board showed no interest in the
Police Jury plan, which made no sense for school purposes and was
at odds with normal districting principles applied by the Board.
The Board hired a cartographer in anticipation of drawing district
lines significantly different from the Police Jury lines, and the
Attorney General's preclearance of the Police Jury plan for the
jury's use produced no apparent Board interest in adopting that
same plan. When minority leaders sought a role in proposing a plan,
the Board ignored them and when they produced concrete proposals
prepared by the NAACP, the Board sidestepped with successive
technical reasons culminating in a patently pretextual objection.
It was only then, as its pretexts for resisting the NAACP were
wearing thin, that the Board evidently scrapped its intention to
obtain an original plan tailored to school district concerns and
acted with unwonted haste on the year-old proposal to adopt the
manifestly unsuitable Police Jury plan. The proposal received no
public hearing support and nothing but objection from minority
voters, who pointed out what the Board now agrees, that the Police
Jury plan dilutes minority voting strength. The objections were
unavailing and the Board adopted the dilutive plan.
There is no reasonable doubt on this record that the Board chose
the Police Jury plan for no other reason than to squelch requests
to adopt the NAACP plan or any other plan reflecting minority
voting strength, and it would be incredible to suggest that the
resulting submergence of the minority voters was unintended by the
Board whose own expert testified that it understood the illegality
of dilution. If, as I conclude below, see Part III,
infra,
dilutive but nonretrogressive in-
357
tent behind a redistricting plan disqualifies it from § 5
preclearance, then preclearance is impossible on this record. Since
the burden to negate such intent (like the burden to negate
retrogressive intent and effect) rests on the voting district
asking for preclearance, nothing more is required to show the
impossibility of preclearance. See,
e. g., Pleasant Grove v.
United States, 479 U. S. 462, 469
(1987). It is worth noting, however, that the parish should
likewise lose even if we assume, as the District Court majority
seems to have done at one point, that the burden to show
disqualifying intent is on the Government and the intervenors.
Bossier Parish II, 7 F. Supp. 2d, at 31 ("We can imagine a
set of facts that would establish a 'non-retrogressive, but
nevertheless discriminatory purpose,' but those imagined facts are
not present here"). It is not only that Judge Kessler was correct
in her conclusion that dilutive but nonretrogressive intent was
shown; the contrary view of the District Court majority raises"
'the definite and firm conviction that a mistake [has] been
committed,'"
Concrete Pipe &
Products of Cal.,
Inc. v.
Construction Laborers Pension Trust for Southern
Cal., 508 U. S.
602, 622 (1993) (quoting
United States v.
United
States Gypsum Co., 333 U. S. 364, 395
(1948)). Regardless of the burden of persuasion, therefore, the
parish should lose under the intent prong of § 5, if the purpose
that disqualifies under § 5 includes an intent to dilute minority
voting strength regardless of retrogression.
III A
The legal issue here is the meaning of "abridging" in the
provision of § 5 that preclearance of a districting change in a
covered jurisdiction requires a showing that the new plan does not
"have the purpose ... of denying or abridging the right to vote on
account of race or color .... " The language tracks that of the
Fifteenth Amendment's guarantee that "[t]he right of citizens ...
to vote shall not be
358
denied or abridged ... on account of race [or] color. " Since
the Act is an exercise of congressional power under § 2 of that
Amendment,
South Carolina v.
Katzenbach, 383 U. S. 301, 325-327
(1966), the choice to follow the Amendment's terminology is most
naturally read as carrying the meaning of the constitutional terms
into the statute.
United States v.
Kozminski,
487 U. S. 931,
945 (1988) ("By employing the constitutional language, Congress
apparently was focusing on the prohibition of comparable
conditions"); cf.
Morissette v.
United States,
342 U. S. 246,
263 (1952) ("[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from
which it was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed"). Any construction of
the statute, therefore, carries an implication about the meaning of
the Amendment, absent some good reason to treat the parallel texts
differently on some particular point, and a reading of the statute
that would not fit the Constitution is presumptively wrong.10
10 The majority argues that we should construe purpose and
effect uniformly, as we would in laws regulating price
discrimination, savings and loans, and cable franchises. See
ante, at 331-332. I find the Fifteenth Amendment more
relevant in interpreting § 5; the constitutional language provides
a reason to give purpose its full breadth. The majority also claims
that its reading leaves the purpose prong with some meaning because
the Government need only refute a jurisdiction's claim that a
change lacks retrogressive purpose in order to deny preclearance,
without countering the jurisdiction's evidence regarding actual
retrogressive effect.
Ante, at 332. This assumes that
purpose is easier to prove than effect. While that may be true in
price-fixing cases, it is not true in voting rights cases (even
though purpose is conceptually simpler than effect under § 5, see
infra, at 367-368). Here, as in many other race
discrimination cases, the parties agreed about the effects of the
proposed changes while hotly disputing the reasons for them. The
majority limits the purpose prong to the few cases in which
attempted retrogression fails of its goal, a rather
359
In each context, it is clear that abridgment necessarily means
something more subtle and less drastic than the complete denial of
the right to cast a ballot, denial being separately forbidden.
Abridgment therefore must be a condition in between complete
denial, on the one hand, and complete enjoyment of voting power, on
the other. The principal concept of diminished voting strength
recognized as actionable under our cases is vote dilution, defined
as a regime that denies to minority voters the same opportunity to
participate in the political process and to elect representatives
of their choice that majority voters enjoy. See,
e. g.,
Thornburg v.
Gingles, 478 U. S., at 46-47; 42 U. S. C. §
1973. The benchmark of dilution pure and simple is thus a system in
which every minority voter has as good a chance at political
participation and voting effectiveness as any other voter. Our
cases have also recognized retrogression as a subspecies of
dilution, the consequence of a scheme that not only gives a
minority voter a lesser practical chance to participate and elect
than a majority voter enjoys, but even reduces the minority voter's
practical power from what a preceding scheme of electoral law
provided. See
Beer v.
United States, 425 U. S., at
141. Although our cases have dealt with vote dilution only under
the Fourteenth Amendment, see,
e. g., Shaw v.
Reno,
509 U. S. 630,
645 (1993), I know of no reason in text or history that dilution is
not equally violative of the Fifteenth Amendment guarantee against
abridgment. And while there has been serious dispute in the past
over the Fourteenth Amendment's coverage of voting rights, see,
e. g., Oregon v.
Mitchell, 400 U. S. 112, 154 (1970)
(Harlan, J., concurring in part and dissenting in part), I know of
no reason to doubt that "abridg[eJ" in the Fifteenth Amendment
includes dilutive discrimination. See
Bossier Parish I,
520
paltry coverage given that it is discriminatory purpose, not
discriminatory effect, that is at the heart of the Fifteenth
Amendment.
360
u. S., at 494-495 (BREYER, J., concurring in part and concurring
in judgment).l1
The Court has never held (save in
Beer) that the concept
of voting abridgment covers only retrogressive dilution, and any
such reading of the Fifteenth Amendment would be outlandish. The
Amendment contains no textual limitation on abridgment, and when it
was adopted, the newly emancipated citizens would have obtained
practically nothing from a mere guarantee that their electoral
power would not be further reduced. Since § 5 of the Act is
likewise free of any
11 We have suggested, but have never explicitly decided, that
the Fifteenth Amendment applies to dilution claims. See
Mobile v.
Bolden, 446 U. S. 55, 62-63 (1980)
(plurality opinion);
Gomillion v.
Lightfoot, 364 U.
S. 339, 346 (1960) (singling out racial minority for discriminatory
treatment in voting violates Fifteenth Amendment, which prohibits
municipal boundaries drawn to exclude blacks). But see
Mobile,
supra, at 84, n. 3 (STEVENS, J., concurring in judgment)
(suggesting that
Mobile plurality said that Fifteenth
Amendment does not reach vote dilution);
Voinovich v.
Quilter, 507
U. S. 146, 159 (1993) (reserving the question);
Shaw v.
Reno, 509 U.
S. 630, 645 (1993) (endorsing the practice of considering
dilution claims under the Fourteenth Amendment);
Beer v.
United States, 425 U. S. 130, 142, n. 14
(1976).
The majority claims that
Gomillion was not about dilution
because it involved the exclusion of black voters from municipal
elections.
Ante, at 334-335, n. 3. The voters excluded from
the gerrymandered Tuskegee were left in unincorporated areas, where
they could, at most, vote for county and state officials. Changing
political boundaries to affect minority voting power would be
called dilution today.
Gomillion shows that the physical
image evoked by the term "dilution" does not encompass all the ways
in which participation in the political process can be made
unequal. That the Court did not use the word "dilution" in its
modern sense in
Gomillion does not diminish the force of its
Fifteenth Amendment analysis.
The majority also suggests,
ante, at 334-335, n. 3, that
the
Mobile plurality explicitly rejected reliance on the
Fifteenth Amendment. But the same plurality recognized that "'deny
or abridge'" in § 2 of the Voting Rights Act mirrored the cognate
language of the Fifteenth Amendment,
Mobile, supra, at
60-61, and we have since held that the language of §2 includes
nonretrogressive dilution claims. See,
e. g., Voinovich v.
Quilter, supra, at 157.
361
language qualifying or limiting the terms of abridgment which it
shares with the Amendment, abridgment under § 5 presumably covers
any vote dilution, not retrogression alone, and no redistricting
scheme should receive preclearance without a showing that it is
nondilutive. See
Bossier Parish I, supra, at
493 (BREYER, J., concurring in part and concurring in judgment)
(use in § 5 of Fifteenth Amendment language indicates that § 5
prohibits new plans with dilutive purposes). Such, in fact, was
apparently just what Congress had in mind when it addressed § 5 to
the agility of covered jurisdictions in keeping one step ahead of
dilution challenges under the Constitution (and previous versions
of the Voting Rights Act) by adopting successive voting schemes,
each with a distinctive feature that perpetuated the abridgment of
the minority vote:
"Congress had found that case-by-case litigation was inadequate
to combat widespread and persistent discrimination in voting,
because of the inordinate amount of time and energy required to
overcome the obstructionist tactics invariably encountered in these
lawsuits. After enduring nearly a century of systematic resistance
to the Fifteenth Amendment, Congress might well decide to shift the
advantage of time and inertia from the perpetrators of the evil to
its victims." South Carolina v. Katzenbach, 383 U.
S., at 328 (footnote omitted).
This evil in Congress's sights was discrimination, abridgment of
the right to vote, not merely discrimination that happens to cause
retrogression, and Congress's intent to frustrate the
unconstitutional evil by barring a replacement scheme of
discrimination from being put into effect was not confined to
anyone subset of discriminatory schemes. The School Board's purpose
thus seems to lie at the very center of what Congress meant to
counter by requiring preclearance, and the Court's holding that any
nonretrogressive purpose survives § 5 is an exceedingly odd
conclusion.
362
B
The majority purports to shoulder its burden to justify a
limited reading of "abridging" by offering an argument from the
"context" of § 5. Since § 5 covers only changes in voting
practices, this fact is said to be a reason to think that
"abridging" as used in the statute is narrower than its cognate in
the Fifteenth Amendment, which covers both changes and continuing
systems.
Ante, at 329-330, 333-334. In other words, on the
majority's reading, the baseline in a § 5 challenge is the status
quo that is to be changed, while the baseline in a Fifteenth
Amendment challenge (or one under § 2 of the Voting Rights Act) is
a nondiscriminatory regime, whether extant or not. From the fact
that § 5 applies only when a voting change is proposed, however, it
does not follow that the baseline of abridgment is the status quo;
Congress could perfectly well have decided that when a jurisdiction
is forced to change its voting scheme (because of malapportionment
shown by a new census, say), it ought to show that the replacement
is constitutional. This, of course, is just what the unqualified
language and its Fifteenth Amendment parallel would suggest.
In fact, the majority's principal reason for reading intent to
abridge as covering only intent to cause retrogression is not the
peculiar context of changes in the law, but
Beer v.
United States, 425 U. S. 130 (1976),
which limited the sort of "effect" that would be an abridgment to
retrogressive effect. The strength of the majority's position,
then, depends on the need for parallel limitations on the purpose
and effect prongs of § 5. The need, however, is very much to the
contrary.
1
Insofar as
Beer is authority for defining the "effect" of
a redistricting plan that would bar preclearance under § 5, I will
of course respect it as precedent. The policy of
stare
decisis is at its most powerful in statutory interpretation
363
(which Congress is always free to supersede with new
legislation), see
Hilton v.
South Carolina Public
Railways Comm'n, 502 U. S. 197, 202
(1991), and § 5 presents no exception to the rule that when
statutory language is construed it should stay construed. But it is
another thing entirely to ignore error in extending discredited
reasoning to previously unspoiled statutory provisions. That,
however, is just what the Court does in extending
Beer from
§ 5 effects to § 5 purpose.
Beer was wrongly decided, and its error should not be
compounded in derogation of clear text and equally clear
congressional purpose. The provision in § 5 barring preclearance of
a districting plan portending an abridging effect is unconditional
(and just as uncompromising as the bar to plans resting on a
purpose to abridge). The
Beer Court nonetheless sought to
justify the imposition of a nontextual limitation on the forbidden
abridging effect to retrogression by relying on a single fragment
of legislative history, a statement from a House Report that § 5
would prevent covered jurisdictions from "'undo[ing] or defeat[ing]
the rights recently won'" by blacks.
Beer, supra, at 140
(quoting H. R. Rep. No. 91-397, p. 8 (1969)).12 Relying on this one
statement, however, was an act of distorting selectivity, for the
legislative history is replete with references to the need to block
changes in voting practices that would perpetuate existing
discrimination and stand in the way of truly nondiscriminatory
alternatives. In the House of Representatives, the Judiciary
Committee noted that "even after apparent defeat[s] resisters seek
new ways and means of discriminating.
12 Section 5 was promulgated by the 89th Congress, but
Congress's attention has repeatedly returned to it as the duration
of the Voting Rights Act has been extended and the Act has been
amended. See,
e. g., Bossier Parish I,
520 U. S. 471,
505-506 (1997) (STEVENS, J., dissenting in part and concurring in
part) (discussing 1982 amendments); Voting Rights Act of 1965,
Amendments of 1975, 89 Stat. 400; Voting Rights Act Amendments of
1970, 84 Stat. 315.
364
Barring one contrivance too often has caused no change in
result, only in methods," H. R. Rep. No. 439, 89th Cong., 1st
Sess., 10 (1965), and the House Report described how jurisdictions
had used changes in voting practices to stave off reform. By making
trifling changes in registration requirements, for example, Dallas
County, Alabama, was able to terminate litigation against it
without registering more than a handful of minority voters, see
id., at 10-11, and new practices were similarly effective
devices for perpetuating discrimination in other jurisdictions as
well, see S. Rep. No. 162, pt. 3, pp. 8-9 (1965) (Joint Statement
of Individual Views by Sens. Dodd, Hart, Long, Kennedy, Bayh,
Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits). After
losing voting rights cases, jurisdictions would adopt new voting
requirements" 'as a means for continuing the rejection of qualified
Negro applicants.'"
Id., at 12 (quoting
United States
v.
Parker, 236 F. Supp. 511, 517 (MD Ala. 1964)). Thanks to
the discriminatory traditions of the jurisdictions covered by § 5,
these new practices often avoided retrogression 13 even as they
stymied improvements. In the days before § 5, the ongoing
litigation would become moot and minority litigants would be back
at square one, shouldering the burden of new challenges with the
prospect of further dodges to come.
Beer, supra, at 152, n.
9 (Marshall, J., dissenting).
The intent of Congress to address the frustration of running to
stay in place was manifest when it extended the Voting Rights Act
in 1969:
"Prior to the enactment of the 1965 act, new voting rules of
various kinds were resorted to in several States in order to
perpetuate discrimination in the face of
13 The legislative history did not use the terms "retrogression"
and "dilution" to describe discriminatory regimes. In the Voting
Rights Act context, the former appears for the first time in a
federal case in
Beer, 425 U. S., at 141; the latter made its
first appearance in
Allen v.
State Bd. of Elections,
393 U. S. 544
(1969).
365
adverse Federal court decrees and enactments by the Congress
.... In order to preclude such future State or local circumvention
of the remedies and policies of the 1965 act, [§ 5 was enacted]
....
"The record before the committee indicates that as Negro voter
registration has increased under the Voting Rights Act, several
jurisdictions have undertaken new, unlawful ways to diminish the
Negroes' franchise and to defeat Negro and Negro-supported
candidates. The U. S. Commission on Civil Rights has reported that
these measures have taken the form of switching to at-large
elections where Negro voting strength is concentrated in particular
election districts and facilitating the consolidation of
predominently [sic] Negro and predominently [sic]
white counties. Other changes in rules or practices affecting
voting have included increasing filing fees in elections where
Negro candidates were running; abolishing or making appointive
offices sought by Negro candidates; extending the term of office of
incumbent white officials, and withholding information about
qualifying for office from Negro candidates." H. R. Rep. No.
91-397, at 6-7.
See also 115 Congo Rec. 38486 (1969) (remarks of Rep. McCulloch)
(listing "new methods by which the South achieves an old goal" of
maintaining white control of the political process).
Congress again expressed its views in 1975:
"In recent years the importance of [§ 5] has become widely
recognized as a means of promoting and preserving minority
political gains in covered jurisdictions ....
" ... As registration and voting of minority citizens increases,
other measures may be resorted to which would dilute increasing
minority voting strength. Such other measures may include switching
to at-large elec-
366
tions, annexations of predominantly white areas, or the adoption
of discriminatory redistricting plans." S. Rep. No. 94-295, pp.
15-17 (citation omitted).
Congress thus referred to § 5 as a way to make the situation
better ("promoting"), not merely as a stopgap to keep it from
getting worse ("preserving").
It is all the more difficult to understand how the majority in
Beer could have been so oblivious to this clear
congressional objective, when a decade before
Beer the Court
had realized that modifying legal requirements was the way
discriminatory jurisdictions stayed one jump ahead of the
Constitution. In
United States v.
Mississippi,
380 U. S. 128
(1965), the Court described a series of ingenious devices
preventing minority registration, and in
South Carolina v.
Katzenbach, 383 U. S. 301 (1966), the
Court said that
"Congress knew that some of the States ... had resorted to the
extraordinary stratagem of contriving new rules of various kinds
for the sole purpose of perpetuating voting discrimination in the
face of adverse federal court decrees. Congress had reason to
suppose that these States might try similar maneuvers in the future
in order to evade the remedies for voting discrimination contained
in the Act itself." Id., at 335 (footnote omitted); see also
id., at 314-315.
Likewise, well before
Beer, our nascent dilution
jurisprudence addressed practices mentioned in the congressional
lists of tactics targeted by § 5. See,
e. g., White v.
Regester, 412
U. S. 755, 765-766, 768-769 (1973).
In fine, the full legislative history shows beyond any doubt
just what the unqualified text of § 5 provides. The statute
contains no reservation in favor of customary abridgment grown
familiar after years of relentless discrimination, and the
preclearance requirement was not enacted to authorize covered
jurisdictions to pour old poison into new bottles. See
post,
at 374-376 (BREYER, J., dissenting).
Beer was
367
wrong, and while it is entitled to stand under our traditional
stare decisis in statutory interpretation,
stare
decisis does not excuse today's decision to compound
Beer's error.14
2
Giving purpose-to-abridge the broader, intended reading while
preserving the erroneously truncated interpretation of effect would
not even result in a facially irrational scheme. This is so because
intent to dilute is conceptually simple, whereas a dilutive
abridgment-in-fact is not readily defined and identified
independently of dilutive intent. A purpose to dilute simply means
to subordinate minority voting power; exact calibration is
unnecessary to identify what is intended. Any purpose to give less
weight to minority participation in the electoral process than to
majority participation is a purpose to discriminate and thus to
"abridge" the right to vote. No further baseline is needed because
the enquiry goes to the direction of the majority's aim, without
reference to details of the existing system.
Dilutive effect, for the reason the majority points out, is
different. Dilutive effect requires a baseline against which to
compare a proposed change. While the baseline is in theory the
electoral effectiveness of majority voters, dilution is not merely
a lack of proportional representation, see
Davis v.
Bandemer, 478
U. S. 109, 131 (1986) (opinion of White, J.), and we have held
that the maximum number of possible majority-minority districts
cannot be the standard, see,
e. g., Miller v.
Johnson, 515 U. S., at 925-926. Thus we have held that an
enquiry into dilutive effect must rest on some
14 The Court says this "lengthy expedition into legislative
history" leaves me "emptyhanded" for the reason that nothing shows
that today's notions of vote dilution were particularly in the
congressional mind.
Ante, at 335, n. 4. But the whole point
of the legislative history is that Congress meant to guard against
just those discriminatory devices that were as yet untried.
Congress did not know what the covered jurisdictions would think up
next.
368
idea of a reasonable allocation of power between minority and
majority voters; this requires a court to compare a challenged
voting practice with a reasonable alternative practice. See
Holder v.
Hall, 512 U. S. 874, 880 (1994)
(opinion of KENNEDY, J.);
id., at 887-888 (O'CONNOR, J.,
concurring in part and concurring in judgment); see also
Johnson v.
De Grandy, 512 U. S. 997, 1018
(1994). Looking only to retrogression in effect, while looking to
any dilutive or other abridgment in purpose, avoids the difficulty
of baseline derivation. The distinction was not intended by
Congress, but such a distinction is not irrational.
Indeed, the Justice Department has always taken the position
that
Beer is limited to the effect prong and puts no
limitation on discriminatory purpose in § 5. See Brief for Federal
Appellant 32-33. The Justice Department's longstanding practice of
refusing to preclear changes that it determined to have an
unconstitutionally discriminatory purpose, both before and after
Beer, is entitled to "particular deference" in light of the
Department's "central role" in administering § 5.
Dougherty
County Bd. of Ed. v.
White, 439 U. S. 32, 39 (1978);
see also
United States v.
Sheffield Bd. of Comm'rs,
435 U. S. 110,
131-132 (1978);
Perkins v.
Matthews, 400 U. S. 379, 390-391
(1971). Most significant here, the fact that the Justice Department
has for decades understood
Beer to be limited to effect
demonstrates that such a position is entirely consistent and
coherent with the law as declared in
Beer, even though it
may not have been what Congress intended.
3
Giving wider scope to purpose than to effect under § 5 would not
only preserve the capacity of § 5 to bar preclearance to all
intended violations of the Fifteenth Amendment,15 it would also
enjoy the virtue of consistency with
15 JUSTICE BREYER developed this justification for giving full
effect to the "purpose" prong in his opinion in
Bossier Parish
I, 520 U. S., at 493497 (opinion concurring in part and
concurring in judgment). Section 2,
369
prior decisions apart from
Beer. In
Richmond v.
United States, 422 U. S. 358 (1975), the
Court held that a city's territorial annexation reducing the
percentage of black voters could not be recognized as a legal wrong
under the effect prong of § 5, but remanded for further
consideration of discriminatory purpose. The majority distinguishes
Richmond as "nothing more than an
ex necessitate
limitation upon the effect prong in the particular context of
annexation."
Ante, at 330. But in fact,
Richmond laid
down no eccentric effect rule and is squarely at odds with the
majority's position that only an act taken with intent to produce a
forbidden effect is forbidden under the intent prong.
As to forbidden effect, the
Richmond Court said this:
"As long as the ward system fairly reflects the strength of the
Negro community as it exists after the annexation, we cannot hold,
without more specific legislative direction, that such an
annexation is nevertheless barred by § 5. It is true that the black
community, if there is racial bloc voting, will command fewer seats
on the city council; and the annexation will have effected a
decline
as amended, now invalidates facially neutral practices with
discriminatory effects even in the absence of purposeful
discrimination, and is thus no longer coextensive with our
understanding of the Constitution. The effects-only standard was
added after the Court made clear, after years of uncertainty, that
the Constitution prohibited only purposeful discrimination, not
neutral action with a disparate impact on minorities.
The Court has divided on the effect of this change on § 5.
Compare
id., at 484, with
id., at 505-506 (STEVENS,
J., dissenting in part and concurring in part). As JUSTICE BREYER
explained, that the effects prong now goes beyond the Constitution
has no bearing on whether we should limit the meaning of the
purpose prong, which does no more than repeat what the Constitution
requires.
Id., at 493-494. Both retrogressive and
nonretrogressive discriminatory purposes violate the Constitution.
As I have said already, I agree with JUSTICE BREYER that there is
no evidence that Congress intended to include in § 5 only part of
what the Constitution prohibits. See
id., at 494. The tides
of constitutional interpretation have buffeted both § 2 and § 5,
but have never ebbed so low as to approve of discriminatory,
dilutive purpose.
370
in the Negroes' relative influence in the city. But a different
city council and an enlarged city are involved after the
annexation. Furthermore, Negro power in the new city is not
undervalued, and Negroes will not be underrepresented on the
council.
"As long as this is true, we cannot hold that the effect of the
annexation is to deny or abridge the right to vote." 422 U. S., at
371.
As
Richmond's references to "undervaluation" and
"underrepresentation" make clear, the case involves application of
standard Fifteenth Amendment principles to the annexation context,
not an annexation exception. As long as the postannexation city
allowed black voters to participate on equal terms with white
voters, the annexation did not "abridge" their voting rights even
if they thereafter made up a smaller proportion of the voting
population. The Court also held, however, that in adopting the very
plan whose effect had been held to be outside the scope of legal
wrong, the city could have acted with an unlawful, discriminatory
intent that would have rendered the annexation unlawful and barred
approval under § 5:
"[I]t may be asked how it could be forbidden by § 5 to have the
purpose and intent of achieving only what is a perfectly legal
result under that section and why we need remand for further
proceedings with respect to purpose alone. The answer is plain, and
we need not labor it. An official action, whether an annexation or
otherwise, taken for the purpose of discriminating against Negroes
on account of their race has no legitimacy at all under our
Constitution or under the statute. Section 5 forbids voting changes
taken with the purpose of denying the vote on the grounds of race
or color." Id., at 378.
371
It follows from
Richmond that a plan lacking any
underlying purpose to cause disqualifying retrogression may be
barred by a discriminatory intent.
The majority's attempt to distinguish
Pleasant Grove
v.
United States, 479 U. S. 462 (1987), is
equally vain. Whereas
Richmond dealt with the argument that
law and logic barred finding a disqualifying intent when effect was
lawful,
Pleasant Grove dealt with the argument that finding
a disqualifying intent was impossible in fact. The Court in
Pleasant Grove denied preclearance to an annexation that
added white voters to the city's electorate, despite the fact that
at the time of the annexation minority voting strength was
nonexistent and officials of the city seeking the annexation were
unaware of any black voters whose votes could be diluted. One thing
is clear beyond peradventure: the annexation in that case could not
have been intended to cause retrogression. No one could have
intended to cause retrogression because no one knew of any minority
voting strength from which retrogression was possible. 479 U. S.,
at 465, n. 2. The fact that the annexation was nonetheless barred
under the purpose prong of § 5, 11 years after
Beer, means
that to day's majority cannot hold as they do without overruling
Pleasant Grove.
The majority seeks to avoid
Pleasant Grove by describing
it as barring "future retrogression" by nipping any such future
contingency even before the bud had formed. This gymnastic,
however, not only overlooks the contradiction between
Pleasant
Grove's holding that a voting change without possible
retrogressive intent could fail under the purpose prong and the
majority's reasoning today that the baseline for the purpose prong
is the status quo; it even ignores what the Court actually said.
While the
Pleasant Grove Court said that impermissible
purpose could relate to anticipated circumstances, 479 U. S., at
471-472, it said nothing about anticipated retrogression (a concept
familiar to the Court
372
since the time of
Beer). The Court found it "plausible"
that the city had simply acted with "the impermissible purpose of
minimizing future black voting strength." 479 U. S., at 471-472
(footnote omitted). The Court spoke of "minimizing," not "causing
retrogression to." But there is more:
"One means of thwarting [integration] is to provide for the
growth of a monolithic white voting block, thereby effectively
diluting the black vote in advance. This is just as impermissible a
purpose as the dilution of present black voting strength. Cf.
City of Richmond, [422 U. S.,] at 378." Id., at
472.
That is, a nonretrogressive dilutive purpose is just as
impermissible under § 5 as a retrogressive one. Today's holding
contradicts that. The majority is overruling
Pleasant
Grove.
The majority proffers no justification for denying the
precedential value of
Pleasant Grove. Instead it observes
that reading the purpose prong of § 5 as covering more than
retrogression (as
Richmond and
Pleasant Grove read
it) would "exacerbate the 'substantial' federalism costs that the
preclearance procedure already exacts."
Ante, at 336. But my
reading, like the Court's own prior reading, would not raise the
cost of federalism one penny above what the Congress meant it to
be. The behavior of Bossier Parish is a plain effort to deny the
voting equality that the Constitution just as plainly guarantees.
The point of § 5 is to thwart the ingenuity of the School Board's
effort to stay ahead of challenges under § 2. Its object is to
bring the country closer to transcending a history of intransigence
to enforcement of the Fifteenth Amendment. Now, however, the
promise of § 5 is substantially diminished. Now executive and
judicial officers of the United States will be forced to preclear
illegal and unconstitutional voting schemes patently intended to
perpetuate discrimination. The appeal to federalism is no excuse. I
respectfully dissent.
373
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
In its administration of the voting rights statute for the past
quarter century, the Department of Justice has consistently
employed a construction of the Voting Rights Act of 1965 contrary
to that imposed upon the Act by the Court today. Apart from the
deference such constructions are always afforded, the Department's
reading points us directly to the necessary starting point of any
exercise in statutory interpretation-the plain language of the
statute.
It is not impossible that language alone would lead one to think
that the phrase "will not have the effect" includes some temporal
measure; the noun "effect" and the verb tense "will have" could
imaginably give rise to a reading that requires a comparison
between what is and what will be. But there is simply nothing in
the word "purpose" or the entire phrase "does not have the purpose"
that would lead anyone to think that Congress had anything in mind
but a presenttense, intentional effort to "den[y] or abridg[e] the
right to vote on account of race." See,
e. g.,
Webster's Third New International Dictionary 1847 (1966). Ergo, if
a municipality intends to deny or abridge voting rights because of
race, it may not obtain preclearance.
Like JUSTICE SOUTER, I am persuaded that the dissenting opinions
of Justices White and Marshall were more faithful to the intent of
the Congress that enacted the Voting Rights Act of 1965 than that
of the majority in
Beer v.
United States, 425 U. S. 130 (1976). One
need not, however, disavow that precedent in order to explain my
profound disagreement with the Court's holding today. The reading
above makes clear that there is no necessary tension between the
Beer majority's interpretation of the word "effect" in § 5
and the Department's consistent interpretation of the word
"purpose." For even if retrogression is an acceptable standard for
identifying prohibited effects, that assumption does not justify an
interpretation of the word
374
"purpose" that is at war with both controlling precedent and the
plain meaning of the statutory text.
Accordingly, for these reasons and for those stated at greater
length by JUSTICE SOUTER, I respectfully dissent.
JUSTICE BREYER, dissenting.
I agree with JUSTICE SOUTER, with one qualification.
I would not reconsider the correctness of the Court's decision
in
Beer v.
United States, 425 U. S. 130 (1976)-an
"effects" case-because, regardless, § 5 of the Voting Rights Act of
1965 prohibits preclearance of a voting change that has the purpose
of unconstitutionally depriving minorities of the right to
vote.
As JUSTICE SOUTER points out,
ante, at 360-361 (opinion
concurring in part and dissenting in part), Congress enacted § 5 in
1965 in part to prevent certain jurisdictions from limiting the
number of black voters through "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."
South Carolina v.
Katzenbach,
383 U. S. 301,
335 (1966). This "stratagem" created a moving target with a
consequent risk of judicial runaround. See,
e. g., Perkins
v.
Matthews, 400 U. S. 379, 395-396
(1971). And this "stratagem" could prove similarly effective where
the State's "new rules" were intended to retrogress and where they
were not. Indeed, since at the time, in certain places, historical
discrimination had left the number of black voters at close to
zero, retrogression would have proved virtually impossible where §
5 was needed most.
An example drawn from history makes the point clear. In Forrest
County, Mississippi, as of 1962, precisely threetenths of 1% of the
voting age black population was registered to vote.
United
States v.
Mississippi, 229 F. Supp. 925, 994, n. 86 (SD
Miss. 1964) (dissenting opinion), rev'd,
380 U. S. 128 (1965).
This number was due in large part to the county registrar's
discriminatory application of the State's
375
voter registration requirements. Prior to 1961, the registrar
had simply refused to accept voter registration forms from black
citizens. See
United States v.
Lynd, 301 F.2d
818, 821
(CA5 1962). After 1961, those blacks who were
allowed to apply to register had been subjected to a more difficult
test than whites, while whites had been offered assistance with
their less taxing applications. And the registrar, upon denying the
applications of black citizens, had refused to supply them with an
explanation.
Id., at 822. The Government attacked these
practices, and the Fifth Circuit enjoined the registrar from
"[f]ailing to process applications for registrations submitted by
Negro applicants on the same basis as applications submitted by
white applicants."
Id., at 823.
Mississippi's "immediate response" to this injunction was to
impose a "good moral character requirement,"
Mississippi,
supra, at 997, a standard this Court has characterized as "an
open invitation to abuse at the hands of voting officials,"
Katzenbach, supra, at 313. One federal judge believed that
this change was designed to avoid the Fifth Circuit's injunction by
"defy[ing] a Federal Appellate Court determination that particular
applicants were qualified [to vote]."
Mississippi, supra, at
997. Such defiance would result in
maintaining-though not,
in light of the absence of blacks from the Forrest County voting
rolls, in
increasingwhite political supremacy.
This is precisely the kind of activity for which § 5 was
designed, and the purpose of § 5 would have demanded its
application in such a case. See,
e. g., Perkins, supra, at
395396 (Congress knew that the "Department of Justice d[id] not
have the resources to police effectively all the States ... covered
by the Act," and § 5 was intended to ensure that States not
institute "new laws with respect to voting that might have a
racially discriminatory purpose");
Katzenbach, supra, at 314
(Prior to 1965, "[e]ven when favorable decisions ha[d] finally been
obtained, some of the States affected ha[d]
376
merely switched to discriminatory devices not covered by the
federal decrees").
And nothing in the Act's language or its history suggests the
contrary. See,
e. g., H. R. Rep. No. 439, 89th Cong.,
1st Sess., 10 (1965) ("Barring one contrivance too often has caused
no change in result, only in methods"); S. Rep. No. 162, 89th
Cong., 1st Sess., pt. 3, p. 12 (1965) (joint views of 12 members of
Senate Judiciary Committee, describing
United States v.
Parker, 236 F. Supp. 511, 517 (MD Ala. 1964), in which a
jurisdiction responded to an injunction by instituting various
means for "the rejection of qualified Negro applicants"); Hearings
on H. R. 6400 before Subcommittee No.5 of the House Committee on
the Judiciary, 89th Cong., 1st Sess., 5 (1965) (testimony of
Attorney General Katzenbach) (discussing those jurisdictions that
are "able, even after apparent defeat in the courts, to devise
whole new methods of discrimination"); Hearings on S. 1564 before
the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt.
1, p. 11 (1965) (testimony of Attorney General Katzenbach)
(similar).
It seems obvious, then, that if Mississippi had enacted its
"moral character" requirement in 1966 (after enactment of the
Voting Rights Act), a court applying § 5 would have found "the
purpose ... of denying or abridging the right to vote on account of
race," even if Mississippi had intended to permit, say, 0.4%,
rather than 0.3%, of the black voting age population of Forrest
County to register. And if so, then irrespective of the complexity
surrounding the administration of an "effects" test, the answer to
today's
purpose question is "yes."
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