OCTOBER TERM, 1996
Syllabus
YOUNG ET AL.
v. FORD ICE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF MISSISSIPPI
No.95-2031. Argued January 6, 1997-Decided March 31,1997
The National Voter Registration Act of 1993 (NVRA) requires
States to provide simplified systems for registering to vote in
federal elections, including a system for voter registration
on a driver's license application. Beginning on January 1, 1995,
Mississippi attempted to comply with the NVRA, attempting to
replace its "Old System" of registration with a "Provisional Plan"
that simplified registration procedures for both federal and state
elections. The United States Attorney General precleared the
Provisional Plan under § 5 of the Voting Rights Act of 1965 (VRA),
which prohibits States with a specified history of voting
discrimination from making changes in voting "practices or
procedures" that have the purpose or effect of denying or abridging
the right to vote on account of race or color. However, a week
before the plan was precleared, the state legislature tabled
legislation needed to make the changes effective for state
elections. On February 10, 1995, the State abandoned the
Provisional Plan in favor of a "New System," which uses the
Provisional Plan for federal election registration only and the Old
System for both state and federal election registration. The State
made no further preclearance submissions. In this suit, appellants
claim that the State and its officials violated § 5 by implementing
changes in its registration system without preclearance. A
three-judge District Court granted the State summary judgment,
holding that the differences in the New System and Provisional Plan
were attributable to the State's attempt to correct a
misapplication of state law, and, thus, were not changes subject to
preclearance; and that the State had precleared all the changes
that the New System made in the Old when the Attorney General
precleared the changes needed to implement the NVRA.
Held: Mississippi has not precleared, and must preclear,
the "practices and procedures" that it sought to administer on and
after February 10, 1995. Pp. 281-291.
(a) Several circumstances, taken together, lead to the
conclusion that the Provisional Plan, although precleared by the
Attorney General, was not "in force or effect" under § 5 and,
hence, did not become part of the baseline against which to judge
whether future change occurred. Those seeking to administer the
plan did not intend to administer an
274
Syllabus
unlawful plan, and they abandoned the plan as soon as it became
clear that the legislature would not pass the laws needed to make
it lawful. Moreover, all these events took place within a few
weeks: The plan was used for only 41 days and by only a third of
the State's voter registration officials, and the State held no
elections prior to its abandonment of the plan, nor were any
elections imminent. Pp. 282-283.
(b) Nonetheless, the New System included changes that must be
precleared because it contains "practices and procedures" that are
significantly different from the Old System. Minor changes, as well
as major, require preclearance. See
Allen v.
State Ed. of
Elections, 393 U.
S. 544, 566-569. This is true even where, as here, the changes
are made in an effort to comply with federal law, so long as those
changes reflect policy choices made by state or local officials.
Id., at 565, n. 29. The NVRA does not preclude application
of the VRA's requirements. Change invokes the preclearance process
whether that change works in favor of, works against, or is neutral
in its impact on minorities because the preclearance process is
aimed at preserving the status quo until the Attorney General or
the courts have an opportunity to evaluate a proposed change.
Although the NVRA imposed mandates on the States, Mississippi's
changes to the New System are discretionary and nonministerial,
reflecting the exercise of policy choice and discretion by state
officials. Thus, they are appropriate matters for § 5 preclearance
review. pp. 283-286.
(c) Mississippi's arguments in favor of its position that the
Attorney General has already precleared its efforts to comply with
the NVRA are rejected. Mississippi correctly argues that the
decisions to adopt the NVRA federal registration system and to
retain a prior state registration system, by themselves, are not
changes for § 5 purposes. However, preclearance requires
examination of the federal system's discretionary elements in a
context that includes history, purpose, and practical effect. The
argument on the merits is whether these changes could have the
purpose and effect of denying or abridging the right to vote on
account of race or color. Preclearance is necessary to evaluate
this argument. Pp. 286-291.
Reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Brenda Wright argued the cause for appellants. With her on the
briefs were Barbara R. Arnwine, Thomas
J. Henderson, Samuel
L. Walters, A. Spencer Gilbert III, Laughlin McDonald, and Neil
Bradley.
275
Malcolm L. Stewart argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Dellinger, Assistant Attorney General Patrick,
Deputy Solicitor General Waxman, and Steven H. Rosenbaum.
Robert E. Sanders, Assistant Attorney General of
Mississippi, argued the cause for appellees. With him on the brief
was
Mike Moore, Attorney General.*
JUSTICE BREYER delivered the opinion of the Court.
The question before us is whether § 5 of the Voting Rights Act
of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c (§ 5),
requires preclearance of certain changes that Mississippi made in
its voter registration procedures-changes that Mississippi made in
order to comply with the National Voter Registration Act of 1993.
We hold that § 5 does require preclearance.
I A
The National Voter Registration Act
Congress enacted the National Voter Registration Act of 1993
(NVRA), 107 Stat. 77, 42 U. S. C. § 1973gg
et seq., to take
effect for States like Mississippi on January 1, 1995. The NVRA
requires States to provide simplified systems for registering to
vote
infederal elections, i.
e., elections for
federal officials, such as the President, congressional
Representatives, and United States Senators. The States must
provide a system for voter registration by mail, § 1973gg-4, a
system for voter registration at various state offices (including
those that provide "public assistance" and those that provide
services to people with disabilities), § 1973gg-5, and,
particularly important, a system for voter registration on a
driver's license application, § 1973gg-3. The NVRA speci-
* Juan Cartagena filed a brief for the Community
Service Society of New York et al. as
amici curiae urging
reversal.
276
fies various details about how these systems must work,
including, for example, the type of information that States can
require on a voter registration form. §§ 1973gg-3(c)(2),
1973gg-7(b). It also imposes requirements about just when, and how,
States may remove people from the federal voter rolls. §§
1973gg-6(a)(3), (4). The NVRA adds that it does not "supersede,
restrict or limit the application of the Voting Rights Act of
1965," and that it does not "authoriz[e] or requir[e] conduct that
is prohibited by the Voting Rights Act of 1965." § 1973gg-9(d).
The Voting Rights Act
Section 5 of the Voting Rights Act of 1965 (VRA), among other
things, prohibits a State with a specified history of voting
discrimination, such as Mississippi, from "enact[ing] or seek[ing]
to administer any ... practic[e], or procedure with respect to
voting different from that in force or effect on November 1, 1964,"
unless and until the State obtains preclearance from the United
States Attorney General (Attorney General) or the United States
District Court for the District of Columbia. § 1973c. Preclearance
is, in effect, a determination that the change "does not have the
purpose and will not have the effect of denying or abridging the
right to vote on account of race or color."
Ibid. In the
language of § 5 jurisprudence, this determination involves a
determination that the change is not retrogressive.
Beer v.
United States, 425 U. S. 130, 141
(1976); 28 CFR § 51.54(a) (1996).
B
The case before us concerns three different Mississippi voting
registration systems: The first system, which we shall call the
"Old System," is that used by Mississippi before it tried to comply
with the NVRA. The second system, the "Provisional Plan," is a
system aimed at NVRA compliance, which Mississippi tried to
implement for about six weeks between January 1, 1995, and February
10, 1995. The third
277
system, the "New System," is the system that Mississippi put
into place after February 10, 1995, in a further effort to comply
with the NVRA. We shall briefly explain the relevant features of
each system.
The Old System. Before 1995, Mississippi administered a
voting registration system, which, like the systems of most States,
provided for a single registration that allowed the registrant to
vote in both federal elections and state elections (i.
e.,
elections for state and local offices). Under Mississippi law, a
citizen could register to vote either by appearing personally at a
county or municipal clerk's office or at other locations (such as
polling places) that the clerk or his deputy visited to register
people to vote. Miss. Code Ann. §§ 23-15-35, 23-15-37, 23-15-39(6)
(1990). Mississippi citizens could also register by obtaining a
mail-in registration form available at driver's license agencies,
public schools, and public libraries, among other places, and
mailing it back to the clerk. Miss. Code Ann. § 23-15-47(2)(a)
(Supp. 1996). The law set forth various details, requiring, for
example, that a mail-in application contain the name and address of
the voter and that it be attested to by a witness,
ibid.
(although there is some dispute between the parties about whether
an application could be rejected for failing to have the witness'
signature). State law also allowed county registration officials to
purge voters from the rolls if they had not voted in four years.
Miss. Code Ann. § 23-15-159 (1990).
The Provisional Plan. In late 1994, the Mississippi
secretary of state, with the help of an NVRA implementation
committee, prepared a series of voter registration changes designed
to ensure compliance with the NVRA. The new voter registration
application that was incorporated into the driver's license form,
for example, did not require that the registrant repeat his or her
address, nor did it require an attesting witness. The secretary of
state provided information and instructions about those changes to
voter registration officials and state agency personnel throughout
the
278
State. The secretary of state and the implementing committee
assumed-and recommended-that the Mississippi Legislature would
change state law insofar as that law might prevent a valid
registration under the NVRA's provisions from counting as a valid
registration for a state or local election. And, on that
assumption, at least one official in the secretary of state's
office told state election officials to place the name of any new
valid applicant under the NVRA on a list that would permit him or
her to vote in state, as well as in federal, elections.
U sing this Provisional Plan, at least some Mississippi
officials registered as many as 4,000 voters between January 1,
1995, and February 10, 1995. On January 25, however, the state
legislature tabled a bill that would have made NVRA registrations
valid for all elections in Mississippi (by, for example, allowing
applicants at driver's license and other agencies to register on
the spot, without having to mail in the application themselves,
App. 86, by eliminating the attesting witness signature on the
mail-in application,
compareid., at 96,101, with Miss. Code
Ann. §23-15-47(3) (Supp. 1996), and by eliminating the optional
4-year purge of nonvoting registrants, replacing it with other
methods for maintaining upto-date voter rolls, App. 87-92, 103).
Because of the legislature's failure to change the Old System's
requirements for state election registration, the state attorney
general concluded that Provisional Plan registrations that did not
meet Old System requirements would
not work, under state
law, as registration for state elections. State officials notified
voter registration officials throughout the State; and they, in
turn, were asked to help notify the 4,000 registrants that they
were not registered to vote in state or local elections.
The New System. On February 10, 1995, Mississippi began
to use what we shall call the New System. That system consists of
the changes that its Provisional Plan set forth-but as applied only
to registration for federal elections. Mississippi maintains the
Old System as the only
279
method for registration for state elections, and as one set of
methods to register for federal elections. See App. to Juris.
Statement 21a. All other States, we are told, have modified their
voter registration rules so that NVRA registration registers voters
for both federal and state elections. Brief for United States as
Amicus Curiae 4.
c
This case arises out of efforts by Mississippi to preclear,
under § 5 of the VRA, changes that it made to comply with the NVRA.
In December 1994, Mississippi submitted to the United States
Attorney General a list of NVRAimplementing changes that it then
intended to make. That submission essentially described what we
have called the Provisional Plan. The submission contained numerous
administrative changes described in two booklets called The
National Voter Registration Act, App. 26-43, and the Mississippi
Agency Voter Registration Procedures Manual,
id., at 51-60.
It also included the proposed state legislation necessary to make
the Provisional Plan work for state elections as well.
Id.,
at 86-104. Mississippi requested preclearance.
Id., at
109-110. On February 1, 1995, the Department of Justice wrote to
Mississippi that the Attorney General did "not interpose any
objection to the specified changes"thereby preclearing
Mississippi's submitted changes. App. to Juris. Statement 17a.
As we pointed out above, however, on January 25, about one week
before the Attorney General precleared the proposed changes, the
state legislature had tabled the proposed legislation needed to
make those changes effective for state elections. On February 10,
10 days after the Department pre cleared the proposed changes,
Mississippi officials wrote to voter registration officials around
the State, telling them that it "appears unlikely that the
Legislature will" revive the tabled bill; that the Provisional
Plan's registration would therefore not work for state elections;
that they should
280
write-or help the secretary of state write-to tell those who had
registered under that system that they were not registered to vote
in state elections; that they should make certain future
registrants understand that they would need to register separately
to be eligible to vote in state, as well as federal, elections; and
that they should develop a system for distinguishing between NVRA
and other voters.
Id., at 20a-23a.
On February 16, about two weeks after the Department of Justice
sent its preclearance letter, the Department wrote another letter
to Mississippi, which made clear that the Department did not
believe its earlier preclearance had precleared what it now saw as
a new plan. The Department asked the State to submit what it called
this new "dual registration and voter purge system" for
preclearance.
Id., at 24a. The Department added:
"In this regard, we note that while, on February 1, 1995, the
Attorney General granted Section 5 preclearance to procedures
instituted by the state to implement the NVRA, that submission did
not seek preclearance for a dual registration and purge system and,
indeed, we understand that the decision to institute such a system
was not made until after February 1." Id., at 24a-25a.
Mississippi, perhaps believing that the February 1 preclearance
sufficed, made no further preclearance submissions.
D
On April 20, 1995, four private citizens (appellants) brought
this lawsuit before a three-judge District Court. They claimed that
Mississippi and its officials had implemented changes in its
registration system without preclearance in violation of § 5. The
United States, which is an
amicus curiae here, brought a
similar lawsuit, and the two actions were consolidated.
The three-judge District Court granted Mississippi's motion for
summary judgment. It considered the plaintiffs'
281
basic claim, namely, that the differences between the
Provisional Plan and the New System amounted to a change in
the administration of Mississippi's voting registration practice,
which change had not been precleared. The court rejected this
argument on the ground that the Provisional Plan was a
misapplication of state law, never ratified by the State. Since the
differences between the New System and the Provisional Plan were
attributable to the State's attempt to correct this misapplication
of state law, the court held, those differences were not changes
subject to preclearance.
The court also considered a different question, namely, whether
the New System differed from the
Old System; and whether
Mississippi had precleared all the changes that the New System made
in the Old. The court held that the Department had (on February 1)
precleared the administrative changes needed to implement the NVRA.
The court also held that Mississippi did not need to preclear its
failure to pass a law that would have permitted NVRA registration
to count for state, as well as for federal, elections, as the
distinction between state and federal elections was due to the
NVRA's own provisions, not to the State's changes in voting
practices.
The private plaintiffs appealed, and we noted probable
jurisdiction. 518 U. S. 1055 (1996). We now reverse.
II
Section 5 of the VRA requires Mississippi to preclear "any ..
practic[e] or procedure with respect to voting different from that
in force or effect on November 1, 1964." 42 U. S. C. § 1973c. The
statute's date of November 1, 1964, often, as here, is not directly
relevant, for differences once precleared normally need not be
cleared again. They become part of the baseline standard for
purposes of determining whether a State has "enact[ed]" or is
"seek[ing] to administer" a "practice or procedure" that is
"different" enough itself to require preclearance.
Presley
v.
Etowah County
282
Comm'n, 502
U. S. 491, 495 (1992) ("To determine whether there have been
changes with respect to voting, we must compare the challenged
practices with those in existence before they were adopted. Absent
relevant intervening changes, the Act requires us to use practices
in existence on November 1, 1964, as our standard of comparison").
Regardless, none of the parties asks us to look further back in
time than 1994, when the Old System was last in effect. The
appellants ask us to consider whether Mississippi's New System
amounts to a forbidden effort to implement unprecleared changes
either (a) because the New System is "different from" the post-1994
Provisional Plan or (b) because it is "different from" the 1994 Old
System. We shall consider each of these claims in turn.
A
First, the appellants and the Government argue that the
Provisional Plan, because it was precleared by the Attorney
General, became part of the baseline against which to judge whether
a future change must be precleared. They add that the New System
differs significantly from the Provisional Plan, particularly in
its effect on registration for state elections. They conclude that
Mississippi had to preclear the New System insofar as it differed
from the Provisional Plan.
The District Court rejected this argument on the ground that the
Provisional Plan practices and procedures never became part of
Mississippi's voting-related practices or procedures, but instead
simply amounted to a temporary misapplication of state law. We,
too, believe that the Provisional Plan, in the statute's words, was
never "in force or effect." 42 U. S. C. § 1973c.
The District Court rested its conclusion upon the fact that
Mississippi did not change its state law so as to make the
Provisional Plan's "unitary" registration system lawful and that
neither the Governor nor the legislature nor the state attorney
general ratified the Provisional Plan. The appel-
283
lants argue that the simple fact that a voting practice is
unlawful under state law does not show, entirely by itself, that
the practice was never "in force or effect." We agree. A State,
after all, might maintain in effect for many years a plan that
technically, or in one respect or another, violated some provision
of state law. Cf.
Perkins v.
Matthews, 400 U. S. 379,
394-395 (1971) (deeming ward system
"in fact 'in force or
effect'" and requiring change from wards to at-large elections to
be precleared even though ward system was illegal and at-large
elections were required under state law (emphasis in original));
City of Lockhart v.
United States, 460 U. S. 125,
132-133 (1983) (numbered-post election system was "in effect"
although it may have been unauthorized by state law). But that is
not the situation here.
In this case, those seeking to administer the Provisional Plan
did not intend to administer an unlawful plan. They expected it to
become lawful. They abandoned the Provisional Plan as soon as its
unlawfulness became apparent, i.
e., as soon as it became
clear that the legislature would not pass the laws needed to make
it lawful. Moreover, all these events took place within the space
of a few weeks. The plan was used to register voters for only 41
days, and only about a third of the State's voter registration
officials had begun to use it. Further, the State held no elections
prior to its abandonment of the Provisional Plan, nor were any
elections imminent. These circumstances taken together lead us to
conclude that the Provisional Plan was not "in force or effect";
hence it did not become part of the baseline against which we are
to judge whether future change occurred.
B
We nonetheless agree with the appellants and the Government that
the New System included changes that must be, but have not been,
precleared. That is because the New System contains "practices and
procedures" that are significantly "different from" the Old
System-the system that was
284
in effect in 1994. And the State has not pre cleared those
differences.
This Court has made clear that minor, as well as major, changes
require preclearance.
Allen v.
State Bd. of
Elections, 393 U.
S. 544, 566-569 (1969) (discussing minor changes, including a
change from paper ballots to voting machines);
NAACP v.
Hampton County Election Comm'n, 470 U. S. 166, 175-177
(1985) (election date relative to filing deadline);
Perkins,
supra, at 387 (location of polling places). See also 28 CFR §
51.12 (1996) (requiring preclearance of "[a]ny change affecting
voting, even though it appears to be minor or indirect ... "). This
is true even where, as here, the changes are made in an effort to
comply with federal law, so long as those changes reflect policy
choices made by state or local officials.
Allen, supra, at
565, n. 29 (requiring State to preclear changes made in an effort
to comply with § 2 of the VRA, 42 U. S. C. § 1973);
McDaniel
v.
Sanchez, 452 U. S. 130, 153 (1981)
(requiring preclearance of voting changes submitted to a federal
court because the VRA "requires that whenever a covered
jurisdiction submits a proposal reflecting the policy choices of
the elected representatives of the peopleno matter what constraints
have limited the choices available to them-the preclearance
requirement of the Voting Rights Act is applicable");
Lopez
v.
Monterey County, 519 U. S. 9, 22 (1996)
(quoting
McDaniel and emphasizing the need to preclear
changes reflecting policy choices);
Hampton County Election
Comm'n, supra, at 179-180 (requiring preclearance of change in
election date although change was made in an effort to comply with
§ 5). Moreover, the NVRA does not forbid application of the VRA's
requirements. To the contrary, it says "[n]othing in this
subchapter authorizes or requires conduct that is prohibited by
the" VRA. 42 U. S. C. § 1973gg-9(d)(2). And it adds that "neither
the rights and remedies established by this section nor any other
provision of this subchapter shall supersede, restrict, or limit
the application of the" VRA. § 1973gg-9(d)(1).
285
Nor does it matter for the preclearance requirement whether the
change works in favor of, works against, or is neutral in its
impact upon the ability of minorities to vote. See generally
City of Lockhart v.
United States, supra (requiring
preclearance of a change but finding the change nonretrogressive).
It is change that invokes the preclearance
process;
evaluation of that change concerns the
merits of whether the
change should in fact be precleared. See
Lopez, supra, at
22-25;
Allen, supra, at 555, n. 19, 558-559. That is so
because preclearance is a process aimed at preserving the status
quo until the Attorney General or the courts have an opportunity to
evaluate a proposed change. See
McCain v.
Lybrand,
465 U. S. 236,
243-244 (1984) (Without § 5, even successful antidiscrimination
lawsuits might "merely resul[t] in a change in methods of
discrimination");
South Carolina v.
Katzenbach,
383 U. S. 301,
335 (1966) (same);
id., at 328 (explaining how the VRA could
attack the problems of States going from one discriminatory system
to another, by shifting "the advantage of time and inertia" to the
potential victims of that discrimination).
In this case, the New System contains numerous examples of new,
significantly different administrative practices-practices that are
not purely ministerial, but reflect the exercise of policy choice
and discretion by Mississippi officials. The system, for example,
involves newly revised written materials containing significant,
and significantly different, registration instructions; new
reporting requirements for local elections officials; new and
detailed instructions about what kind of assistance state agency
personnel should offer potential NVRA registrants, which state
agencies will be NVRA registration agencies, and how and in what
form registration material is to be forwarded to those who maintain
the voting rolls; and other similar matters. Insofar as they embody
discretionary decisions that have a potential for discriminatory
impact, they are appropriate matters for review under § 5's
preclearance process.
286
In saying this, we recognize that the NVRA imposes certain
mandates on States, describing those mandates in detail. The NVRA
says, for example, that the state driver's license applications
must also serve as voter registration applications and that a
decision not to register will remain confidential. 42 U. S. C. §§
1973gg-3(a)(1), (c)(2)(D)(ii). It says that States cannot force
driver's license applications to submit the same information twice
(on license applications and again on registration forms). §
1973gg-3(c)(2)(A). Nonetheless, implementation of the NVRA is not
purely ministerial. The NVRA still leaves room for policy choice.
The NVRA does not list, for example, all the other information the
State may-or may not-provide or request. And a decision about that
other information-say, whether or not to tell the applicant that
registration counts only for federal elections-makes Mississippi's
changes to the New System the kind of discretionary, nonministerial
changes that call for federal VRA review. Hence, Mississippi must
preclear those changes.
c
We shall consider Mississippi's two important arguments to the
contrary.
1
The first set of arguments concerns the effect of the Attorney
General's preclearance letter. Mississippi points out that the
Department of Justice wrote to the State on February 1, 1995, that
the Attorney General did "not interpose any objection" to its NVRA
changes. App. to Juris. Statement 17a. Hence, says Mississippi, the
Attorney General has already precleared its efforts to comply.
The submission that the Attorney General approved, however,
assumed that Mississippi's administrative changes would permit NVRA
registrants to vote in both state and federal elections. The
submission included a pamphlet entitled The National Voter
Registration Act, App. 26-43, which
287
set forth what Mississippi's submission letter called the
State's "plan to administratively implement NVRA on January 1,
1995,"
id., at 110. The submission included legislative
changes; indeed, Mississippi enclosed in the packet the proposed
legislation that would have made a single NVRA registration valid
for both federal and state elections.
Id., at 86-104. The
submission also included forms to be provided NVRA registrants,
forms that, by their lack of specificity, probably would have led
those voters-and the Attorney General-to believe that NVRA
registration permitted them to vote in all elections.
Id.,
at 44-50. These forms-perfectly understandable on the "single
registration" assumption-might well mislead if they cannot in fact
be used to register for state elections. Cf.
City of
Lockhart v.
United States, 460 U. S., at 131-132
(requiring city to submit "entire system" because "[t]he possible
discriminatory purpose or effect of the [changes], admittedly
subject to § 5, cannot be determined in isolation from the
'pre-existing' elements"). Furthermore, the submission included no
instructions to voter registration officials about treating NVRA
registrants differently from other voters and provided for no
notice to NVRA registrants that they could not vote in state
elections.
Mississippi replies that, as a matter of logic, one could read
its submission, with its explicit indication that the state
legislation was proposed, but not yet enacted, as a request for
approval of the administrative changes
whether or not the state
legislature passed the bill. It tries to derive further support
for its claim by pointing to Department of Justice regulations that
say that the Attorney General will not preclear unenacted
legislation. 28 CFR §§ 51.22, 51.35 (1996). As a matter of pure
logic, Mississippi is correct. One could logically understand the
preclearance in the way the State suggests. But still, that is not
the
only way to understand it. At a minimum, its submission
was ambiguous as to whether (1) it sought approval on the
assumption that the
288
state legislature would enact the bill, or (2) it sought
approval whether or not the state legislature would enact the bill.
Although there is one reference to the possibility of a "dual
registration system" in the absence of legislation, App. 72, the
submission simply did not specify what would happen if the
legislature did not pass the bill, and it thereby created ambiguity
about whether the practices and procedures described in the
submission would be implemented regardless of what the legislature
did. The VRA permits the Attorney General to resolve such
ambiguities against the submitting State.
McCain, 465 U. S.,
at 249, 255-257 (burden is on the State to submit a complete and
unambiguous description of proposed changes);
Clark v.
Roemer, 500 U.
S. 646, 658-659 (1991) (relying on "presumption that any
ambiguity in the scope of the preclearance request must be
construed against the [State]" (internal quotation marks and
citations omitted)). See also 28 CFR §§ 51.26(d), 51.27(c) (1996)
(requiring preclearance submissions to explain changes clearly and
in detail). Hence, the Attorney General could read her approval of
the submitted plan as an approval of a plan that rested on the
assumption that the proposed changes would be valid for all
elections, not a plan in which NVRA registration does not qualify
the registrant to vote in state elections. We find nothing in the
Attorney General's regulations that forces a contrary
conclusion.
Mississippi adds that the Attorney General-if faced with an
ambiguity-could have sought more information to clarify the
situation, to determine what would happen if the legislature failed
to pass the bill, for example. And the Attorney General could then
have withheld her approval once she found out what would likely
occur. Again, Mississippi is right as to what the Attorney General
might have done. See § 51.37(a) (Attorney General may
request more information about submissions). Indeed, the United
States "acknowledge[s]" that with "the benefit of hindsight, ...
such a request might have been preferable" to preclearing the
sub-
289
mISSIOn. Brief for United States as
Amicus Curiae 27, n.
14. Still, the law does not
require the Attorney General, in
these circumstances, to obtain more information.
Clark,
supra, at 658-659 (The Attorney General is under no duty to
investigate voting changes). See also
McCain, supra, at 247
(Congress" 'acknowledged and anticipated [the] inability of the
Justice Department-given limited resources-to investigate
independently all changes ... '" (quoting
Perkins, 400 U.
S., at 392, n. 10)). And the issue, of course, is not whether she
should or should not have issued a preclearance letter on February
1, 1995, but rather
what it was that she precleared. Her
failure to seek added information makes it more likely, not less
likely, that she intended to preclear what she took to be the
natural import of the earlier submission, namely, a proposal for a
single state/federal registration system.
Finally, Mississippi argues that the Attorney General
in
fact knew, on February 1, 1995, when she issued the preclearance
letter that the state legislature would not enact the proposed
bill. And it adds that the Attorney General nonetheless approved
the submission in order to have in place a precleared unitary
system that would serve as a benchmark for measuring whether
subsequent changes are retrogressive, thereby permitting the
Attorney General to argue that § 5 prohibited as retrogressive the
dual system which she knew would likely emerge because the
legislation failed. In fact, the record is not clear about just
what the Department of Justice did or did not know
(e. g.,
whether tabling the bill meant killing it; whether state election
law definitely had to be changed). But in any event, the short
answer to the argument is that Mississippi's description of the
Department's motive, if true, would refute its claim that the
Attorney General intended to preclear a dual system. Indeed, only
two weeks after the February 1 preclearance, the Attorney General
wrote to Mississippi stating explicitly her view that its
submission had not sought "preclearance for a
290
dual registration and purge system." App. to Juris. Statement
25a. See
McCain, supra, at 255-256 (relying on "such
after-the-fact Justice Department statements ... in determining
whether a particular change was actually precleared").
Regardless, the law ordinarily permits the Attorney General to
rest a decision to preclear or not to preclear upon the submission
itself.
Clark, supra, at 658-659;
United States v.
Sheffield Bd. of Comm'rs, 435 U. S. 110, 136-138
(1978). Tying preclearance to a particular set of written documents
themselves helps to avoid the kinds of arguments about meaning and
intent that Mississippi raises here-arguments that, were they
frequently to arise, could delay expeditious decisionmaking as to
the many thousands of requests for clearance that the Department of
Justice receives each year. See
Clark, supra, at 658-659. In
sum, we conclude that the Department of Justice, on February 1, did
not preclear the New System.
2
Finally, Mississippi argues that the NVRA, because it
specifically applies only to registration for federal elections, 42
U. S. C. § 1973gg-2(a), automatically authorizes it to maintain
separate voting procedures; hence § 5 cannot be used to force it to
implement the NVRA for all elections. If Mississippi means that the
NVRA does not forbid two systems and that § 5 of the VRA does not
categorically-without more-forbid a State to maintain a dual
system, we agree. The decision to adopt the NVRA federal
registration system is not, by itself, a change for the purposes of
§ 5, for the State has no choice but to do so. And of course, a
State's retention of a prior system for state elections, by itself,
is not a change. It is the discretionary elements of the new
federal system that the State must preclear. The problem for
Mississippi is that preclearance typically requires examination of
discretionary changes in context-a context that includes history,
purpose, and practical effect. See
City of Lockhart v.
291
United States, 460 U. S., at 131 ("The possible
discriminatory purpose or effect of the [changes], admittedly
subject to § 5, cannot be determined in isolation from the
'pre-existing' elements of the council"). The appellants and the
Government argue that
in context and in light of their
practical effects, the particular changes and the way in which
Mississippi administers them
could have the "purpose [or]
effect of denying or abridging the right to vote on account of race
or color .... " 42 U. S. C. § 1973c. We cannot say whether or not
that is so, for that is an argument about the merits. The question
here is "preclearance," and preclearance is necessary so that the
appellants and the Government will have the opportunity to find out
if it is true.
III
We hold that Mississippi has not precleared, and must preclear,
the "practices and procedures" that it sought to administer on and
after February 10, 1995. The decision of the District Court is
reversed, and the case is remanded with instructions for the
District Court to enter an order enjoining further use of
Mississippi's unprecleared changes as appropriate. Any further
questions about the remedy for Mississippi's use of an unprecleared
plan are for the District Court to address in the first instance.
Clark, 500 U. S., at 659-660.
It is so ordered.
Comments
Be the first to comment
Leave a Comment