The judgment is affirmed.
Mr. Justice STEVENS, concurring in the judgment.
In 1965, a three-judge District Court was convened in
Mississippi to deal with allegations of malapportionment in
Mississippi's State Legislature. By 1975, an acceptable
reapportionment plan still had not been formulated; nevertheless,
quadrennial elections were held under a court-ordered plan.
[
Footnote 1] In 1978, the
Mississippi Legislature enacted a statutory reapportionment plan,
which was submitted to the Attorney General of the United States
for preclearance under the Voting Rights Act of 1965, 79 Stat. 437,
as amended, 42 U.S.C. 1973 et seq. When the Attorney General
objected to the plan, the State brought this action in a
three-judge District Court in the District of Columbia, seeking a
declaratory judgment that the plan was in compliance with the Act.
In 1979, while the Voting Rights Act case was still pending, the
three-judge court in Mississippi entered a judgment putting
into
Page 444 U.S.
1050 , 1051
effect a reapportionment plan agreed to by all parties. Connor
v. Finch,
469 F.
Supp. 693 (SD Miss.). That plan was essentially a modified
version of the statutory plan.
Under the Voting Rights Act the task confronting the District of
Columbia court was to determine whether the statutory plan had the
purpose or effect of denying or abridging the right to vote on
account of race or color. 42 U.S.C. 1973c. An impermissible effect
is created whenever a reapportionment plan has the effect of
diluting existing black voting strength. See Beer v. United States,
425 U.S.
130, 141, 1363. The District of Columbia court compared the
statutory reapportionment plan to the 1979 court-ordered plan in
order to determine whether any prohibited retrogression had
occurred. Concluding that it had not and that there was no purpose
to discriminate evident in the statutory plan, the court granted
the State a declaratory judgment approving the plan. Both the
United States and intervenors (black voters in Mississippi)
appealed. The Court today affirms, without opinion.
In my judgment the only significant issue presented on appeal is
whether the statutory plan had the impermissible effect of diluting
black voting strength. In his dissenting opinion Mr. Justice
MARSHALL presents a persuasive case that there were significant
discrepancies between the statutory plan and the 1979 court-ordered
plan. Because I believe that the 1979 plan was not the proper
benchmark to be used in determining whether there was an
impermissible effect, I have no occasion to comment on his
conclusion that the differences between the two plans were
sufficient to constitute a "dilution" of black voting strength.
As a technical matter, the court-ordered plan was the plan "in
effect" at the time the District of Columbia court decided the
case. [
Footnote 2]
Nevertheless, all of the parties to both actions realized that the
statutory plan would be used in the 1979
Page 444 U.S.
1050 , 1052
elections if it received court approval in time. See Connor v.
Coleman,
440 U.S.
612, 622, 1528 (MARSHALL, J., dissenting). Thus, in practical
terms, the court-ordered plan was never more than a backup. To use
such a plan as a benchmark for judging the effect of the statutory
plan on voting rights seems to me to be logically indefensible. No
voting rights in Mississippi were ever affected by the backup plan
and thus any "changes" due to the imposition of the statutory plan
could hardly have diluted those rights. Moreover, to require a
state legislature to predict what court-ordered plans may be
entered while a Voting Rights Act suit is pending and then to draw
its plan to ensure that no dilution occurs seems to me to be a
futile exercise clearly not required by the statute.
Thus, in my view the statutory plan was permissible under the
Act so long as it did not have a discriminatory purpose and did not
dilute black voting strength as it existed at the time the
legislation was passed. The District Court's findings of fact make
it clear that the plan met these conditions. [
Footnote 3] I therefore concur in the judgment
affirming the decision of the court below.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr.
Justice WHITE join, dissenting.
For more than 15 years private litigants, often joined by the
United States, have sought to obtain an apportionment
Page 444 U.S.
1050 , 1053
plan in Mississippi which satisfies the requirements of the
Equal Protection Clause and the Voting Rights Act of 1965. By
today's summary affirmance, the Court assures that these efforts
will remain to a substantial degree unsuccessful. I dissent.
I
Brought in 1965, this case has a procedural history that can
charitably be described as bizarre. Both state officials and the
three- judge District Court for the Southern District of
Mississippi have shown a firm determination to avoid implementation
of an apportionment plan which complies with constitutional and
statutory requirements.
1
The case has been before this Court no fewer than eight times; we
have invalidated plans proposed by the District Court on four
occasions. Connor v. Johnson,
402 U.S. 690 (1971);
Connor v. Williams,
404 U.S. 549 (1972);
Connor v. Waller,
421
U.S. 656 (1975); Connor v. Finch,
431 U.S. 407 (1977).
In Connor v. Finch, we ordered the District Court to draw a
lawful apportionment plan "with a compelling awareness of the need
for its expeditious accomplishment, so that the citizens of
Mississippi at long last will be enabled to elect a legislature
that properly represents them ." Id., at 426. Two more years
passed, and no such plan was drawn. When the case was here last
Term, the plaintiffs sought leave to file a petition for a writ of
mandamus to require the District Court to do what we had ordered.
On March 26, 1979, the Court granted leave to file the petition,
but it postponed action for 30 days, instructing the District Court
to enter a plan "forthwith and without further delay." Connor v.
Coleman,
440 U.S.
612, 614, 1524.2 On April 13, 1979, the District Court entered
a final judgment embodying a plan agreed to by all
Page 444 U.S.
1050 , 1054
parties.
3 Unfortunately,
this settlement plan did not end the litigation.
Almost a year earlier, on April 21, 1978, the Governor of
Mississippi had approved a statutory reapportionment plan designed
to supersede any court-ordered plan to be produced in this
litigation. The statutory plan was submitted to the Attorney
General of the United States for preclearance under the Voting
Rights Act of 1965, 42 U.S.C. 1973 et seq. On July 31, 1978, the
Attorney General entered a timely objection on the ground that the
State had failed to carry its burden of proving the absence of a
discriminatory purpose or effect. See 42 U.S.C. 1973c. The State of
Mississippi filed the present action in the United States District
Court for the District of Columbia, seeking a declaratory judgment
under the Voting Rights Act that the statutory plan did not have
the prohibited purpose or effect. Ten Mississippi Negro voters
intervened, urging that the statutory plan be declared invalid. On
June 1, 1979, the District Court entered the declaration requested
by the State, and it is that judgment which is the subject of the
present appeal.
II
The legality of the statutory plan depends on whether it has the
purpose or effect of diluting Negro voting strength in Mississippi.
If the statutory plan is retrogressive, it is forbidden under the
Voting Rights Act. Beer v. United States,
425 U.S. 130d 629 (1976).
The District Court correctly measured the statutory plan against
the present apportionment of the Mississippi Legislature, which is
the settlement plan embodied in the final judgment entered by the
District Court for the
Page 444 U.S.
1050 , 1055
Southern District of Mississippi in response to our instruction
to enter a plan "forthwith and without further delay." 4
The District Court's findings reveal a long history of denial of
Negro voting rights in Mississippi. Official use of racially
discriminatory devices such as literacy tests, poll taxes, and
white primaries effectively excluded Negroes from participation in
the electoral process until the passage of the Voting Rights Act in
1965. The current effects of past discrimination are manifested in
serious underrepresentation of Negroes in the state legislature.
Although the latest census showed that Mississippi's population is
36.8% Negro, prior to the 1979 elections there were only four
Negroes in the 122-member House of Representatives and none in the
52-member Senate. Because of racial bloc voting and low Negro voter
registration and turnout. Negroes must constitute a substantial
majority of citizens in a district in order to have a reasonable
opportunity to elect a candidate of their choice. The court
concluded that either a Negro population of 65% or a Negro voting
age population of 60% was necessary to provide such an
opportunity.
Page 444 U.S.
1050 , 1056
It is evident from the findings of the District Court that the
statutory plan significantly weakens the voting strength of Negroes
in a number of ways. The statutory plan divides and diminishes
Negro population concentrations, combines them with heavily white
populations, and creates oddly shaped districts for no apparent
reason other than to dilute the Negro vote. Under the plan
presently in effect, 49 districts contain a majority of Negro
voters; the statutory plan contains only 46 such districts. As the
District Court acknowledged, under "the statutory plan's
redistricting of Warren County, a heavy black population
concentration is divided among three proposed house districts,
turning a black majority into a black minority in all three
districts." App. to Juris. Statement in No. 79-504, pp.
18a-19a.
The court concluded that the elimination of three majority
districts was insignificant, relying on its finding that a Negro
voting-age population of 60% was necessary in order for Negroes to
have a fair opportunity to elect a candidate of their choice.
Apparently the court reasoned that the diminution in the number of
districts with a mere majority of Negro voters was not
retrogressive since even under the plan presently in effect, Negro
voters in those districts could not elect candidates. But a
majority population gives Negroes at least some opportunity to
elect a candidate of their choice; a minority gives them
practically none. Indeed, in some of the counties with Negro
majorities under the existing plan but not under the statutory
plan, Negroes have been extremely active in city government and
have a genuine opportunity to elect a candidate of their choice.
[
Footnote 5] The District
Court's mechanical application of the 60% standard eliminates that
opportunity.
In a number of other districts appellees failed to carry
Page 444 U.S.
1050 , 1057
its burden of disproving retrogression within the meaning of
Beer. In Leflore County, for example, existing law provides for a
Negro voting-age population of 71.72%; the statutory plan reduces
that population to 64.26 %. The statutory plan fragments a heavily
Negro population in that county, combining the larger portion with
a white community. The record showed that because of past
discrimination, Negro voting strength was severely inhibited in the
county, in part because most Negroes reside in rural areas, where
voter turnout is far less than in urban districts. There was
testimony that a 65% Negro voting-age population substantially
composed of rural Negroes was insufficient to provide a fair
opportunity to elect candidates. By contrast, the 71.72% population
provided by the existing plan is fully adequate.
The District Court's findings show that the statutory plan
fragments a number of cohesive voting districts, combining
communities where Negroes have been politically active with white
populations for no discernible reason. There was uncontradicted
testimony that in seven districts, the statutory plan deprives
Negro voters of an opportunity to elect a candidate of their
choice. [
Footnote 6] In these
circumstances, I am unable to accept
Page 444 U.S.
1050 , 1058
the conclusion that the statutory plan would not lead to a
retrogression in the position of Negro voters.
The District Court acknowledged these differences between the
two plans, but upheld the statutory plan nonetheless, concluding
that the differences were insufficient to constitute a
discriminatory effect. The court pointed out that both plans had
the same number of districts with Negro voting-age populations of
60% or more, and it relied heavily on "the fact that legislative
reapportionment is the preferred vehicle for reapportionment, as is
reflected by the broader tolerances which are allowed to
legislatures, but not to courts, in the matter of deviations from
uniform population requirements." App. to Juris. Statement in No.
79- 504, p. 32a. [
Footnote 7]
It also relied on findings that the intervenors had not offered
sufficient objections during the formulation of the statutory
plan.
The District Court's reasoning amounts to a conclusion that
there is a de minimis exception to the fundamental proposition that
changes may not be made if they would produce a retrogression in
the electoral potential of Negro voters. Beer v. United States,
425 U.S. 130, 47
L. Ed. 2d 629 (1976). I am unable to dis-
Page 444 U.S.
1050 , 1059
cern such an exception in the Voting Rights Act or in any of our
decisions . Such a gloss on the Act would invite a series of
changes, seemingly insignificant in themselves, which over the
course of years could result in a substantial decline in Negro
voting strength. Nor is the decision below justified by the
principle that legislatures may deviate more broadly than courts
from uniform population requirements. The Voting Rights Act flatly
prohibits state legislatures from " 'undo[ing] or defeat[ ing] the
rights recently won' by Negroes." Beer v. United States, supra, at
140. Finally, the asserted failure of the interveners to offer
sufficient objections to the statutory plan is wholly irrelevant to
the inquiry required by the Voting Rights Act. The Act's
proscription on retrogression is simply not subject to waiver. The
District Court's conclusion would permit a State freely to dilute
Negro voting strength whenever the Negro community is unable or
unwilling to participate in the apportionment process.
By today's summary affirmance, the Court permits the rights won
less than a year ago, after generations of political efforts and
well over a decade of litigation, to be thwarted by recalcitrant
state officials. In so doing, the Court appears to condone a novel
interpretation of the law that would find a de minimis exception to
the clear and absolute requirements of the Voting Rights Act, and
sanctions the application of this new doctrine to a case in which,
as the record amply demonstrates, the dilution of Negro voting
strength is not de minimis at all, but substantial. The plan
approved today ensures that the Negro voters of Mississippi will
not yet obtain an apportionment plan which meets the requirements
of the Act. I dissent.
Footnotes
Footnote 1 The history of
that litigation is described at length in Mr. Justice MARSHALL's
dissenting opinion in Connor v. Coleman,
440 U.S.
612, 614, 1524.
Footnote 2 The statutory
plan could not become effective until it was cleared pursuant to
the Voting Rights Act by either the Attorney General or the
three-judge court in the District of Columbia. Connor v. Waller,
421 U.S. 656. The
judgment entered by the Mississippi court, on the other hand,
specifically provided that the court- ordered plan was to be in
"full force and effect for the 1979 regular state legislative
elections and thereafter unless and until altered according to
law." Connor v. Finch,
469 F.
Supp. 693, 694 (SD Miss.1979). Thus, the court-ordered plan
would have remained in effect if the District of Columbia court had
not approved the statutory plan.
Footnote 3 The court noted
that when compared to the 1975 apportionment plan that had governed
the last elections, the statutory plan constituted a " clear
enhancement of the position of racial minorities with respect to
their effective exercise of the electoral franchise . . . ." App.
to Juris. Statement in No. 79-504, p. 32a, n. 6.
[
Footnote 1] The
procedural background is described in detail in my dissenting
opinion in Connor v. Coleman,
440 U.S. 612, 614-621,
1524- 1528 (1979).
[
Footnote 2] I would have
issued the writ immediately. See Connor v. Coleman, supra, at 614
(dissenting opinion).
[
Footnote 3] The petition
for a writ of mandamus was denied on May 21, 1979, Connor v.
Coleman,
441 U.S.
792; we noted that the Clerk of the District Court had "stated
that all parties to the litigation have announced in open court
that there will be no appeal." Ibid.
Footnote 4 The argument that
retrogression should be measured against the 1975 court-ordered
plan which was in effect when the legislature adopted the statutory
plan is manifestly incorrect. The mandate of the Voting Rights Act
is that a plan may not be adopted if it would dilute existing Negro
voting strength. There is no dispute that the 1979 court-ordered
plan was the governing law at the time the court below rendered its
decision. If the statutory plan were not put into effect, future
elections would be conducted under the court-ordered plan.
Accordingly, it is simply incorrect to suggest that Negro voting
rights were not " affected" by the 1979 court-ordered plan or that
a subsequent statutory plan could not dilute the rights won under
that plan. To suggest, as does Mr. Justice Stevens, ante, that the
court-ordered plan that is now the law in Mississippi may be
disregarded because the parties viewed it as a mere " backup" not
only denigrates a final judgment of a federal court, entered at our
direction after over a decade of litigation; it would also permit a
state legislature freely to dilute Negro voting strength gained
through any court-ordered plan under which elections had not yet
been held. Such a result is plainly contrary to the Voting Rights
Act.
Footnote 5 For example, in
the Warren County district the community of Vicksburg has recently
elected a Negro to the City Council. In addition, Bolton and
Edwards, primarily Negro towns in the Hinds County district, have
predominantly Negro city governments.
Footnote 6 For example, in
western Hinds County, a heavily Negro district under the present
law is divided into three sections, each of which is combined with
greater white populations in surrounding suburbs. In Marshall
County, the only district that has elected a Negro supervisor is
split up, and the voting strength of Negro voters in the county's
House district is diluted by the inclusion of the predominantly
white Holly Springs precinct. The county's Negro voting population
is thus reduced from 62% to 56%. In Adams County, the statutory
plan divides the only supervisors' district with a majority Negro
population into two districts. The northern portion of Adams County
is then combined with heavily white populations, which reduces the
Negro population from almost 70% to 63%.
The District Court altogether ignored the retrogression in the
electoral strength of Negro voters within the counties. This was a
serious error, for county delegations to the Mississippi
Legislature play a crucial role in local government. Legislation
affecting the county is enacted by a scheme of bills of local
application in the state legislature ; boards of supervisors
exercise little legislative power. As a result, the county
delegation is largely responsible for local governance. If the
statutory plan is viewed from the perspective of particular
counties, it is even more difficult to account for the District
Court's finding that any retrogression was "insignificant."
Footnote 7 The court also
found that the State had carried its burden of proving that the
statutory plan was not the product of a discriminatory intent, a
conclusion that is in my view highly questionable. The unexplained
discriminatory elements of the statutory plan, when combined with
the State's prior history of discrimination, suggest that the State
had not carried its burden. Indeed, the court entirely ignored
testimony tending to show that members of the state legislature's
joint reapportionment committee were aware that the statutory plan
dilutes the strength of the Negro vote and that alternative
configurations would preserve existing Negro population
concentrations.
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