1

Chapter 4

PRECLEARANCE UNDER SECTION 5 OF THE VOTING

RIGHTS ACT

A. INTRODUCTION
Until 1964, Southern state officials bent on denying blacks political power could exact
enormous costs on opposition forces simply by requiring plaintiffs to litigate. A plaintiff wishing
to put a stop to unconstitutionally discriminatory limits on the right to vote, for example, would
have to spend resources pursuing a court case. Even if successful in court, however, the state
could simply replace the challenged law with another discriminatory one, and by staying one
step ahead of plaintiffs the state could significantly delay compliance.
In what was likely the most innovative aspect of the Voting Rights Act of 1965, Congress
sought to correct this situation by “shift[ing] the advantage of time and inertia from the
perpetrators of the evil to its victims.” South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966)
[p. XXX]. Instead of placing the burden on plaintiffs to demonstrate the unconstitutionality of
election laws, § 5 of the VRA imposed upon certain governments the obligation to prove the
laws’ legality before those laws could go into effect. Under the preclearance provision, a state or
political subdivision wishing to change its election laws must submit its proposed change to the
Attorney General of the United States or obtain a declaratory judgment from the United States
District Court for the District of Columbia. Under either route, preclearance will be granted and
the proposed change will be permitted to take effect only if the change has neither the purpose
nor the effect of “denying or abridging the right to vote on account of race or color.” 42 U.S.C.
§ 1973c. (The Act now applies as well to laws denying or abridging the right to vote of language
minorities. See 42 U.S.C. § 1973b(f)(2))
The preclearance provision does not apply to all changes to laws that conceivably may affect
voting power. Rather, the preclearance obligation extends only to “voting qualification[s] or
prerequisite[s] to voting, or standard[s], practice[s], or procedure[s] with respect to voting.” 42
U.S.C. § 1973c. Although the Supreme Court has recognized that this phrase implies some
category of laws that need not be precleared, the Court has given it a broad interpretation,
extending its coverage to such matters as the hours and locations of polling places, the drawing
of district lines, whether certain government offices should be elective, and limitations on ballot
access. See Allen v. State Board of Elections, 393 U.S. 544 (1969) [p. XXX].
The preclearance provision is limited also in that it does not apply to the entire country. Its
scope is restricted to “covered jurisdictions,” which are identified in § 4(b) of the VRA, 42
U.S.C. § 1973b(b), as those states or political subdivisions that used “tests or devices” in
determining voter eligibility and in which fewer than 50% of the voting-age population were
registered or voted in the presidential elections of 1964, 1968, or 1972. The Act further defined a
“test or device” as “any requirement that a person as a prerequisite for voting or registration for
voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2)
demonstrate any educational achievement or his knowledge of any particular subject, (3) possess
good moral character, or (4) prove his qualifications by the voucher of registered voters or
members of any other class.” 42 U.S.C. § 1973b(c).
As the Supreme Court has interpreted § 5, preclearance guards against “retrogression”—laws
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that reduce the political power of minority groups as compared to the power they held before the
proposed change. See Beer v. United States, 425 U.S. 130 (1976) [p. XXX]. Preclearance does
not demand that states improve the lot of minorities, or even that minorities be given the power
to which they are entitled by § 2 of the VRA, but simply that the proposed change not make the
situation worse. If, however, the purpose of a proposed change (as distinguished from its effect)
is to give minorities less political power than that to which they are entitled, preclearance should
be denied. See 42 U.S.C. § 1973c(c).

B. VOTING STANDARDS, PRACTICES, AND PROCEDURES

Much as critics have complained that § 5 makes states subservient to the national
government, the preclearance procedure applies to only a subset of laws passed or administered
by covered jurisdictions. Specifically, preclearance is required whenever a covered jurisdiction
“shall enact or seek to administer any voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting.” 42 U.S.C. § 1973c. There is little controversy as to
the meaning of “voting qualification or prerequisite to voting,” but the remaining statutory
language has been the subject of important litigation.
Disputes concerning the meaning of “standard, practice, or procedure with respect to voting”
confront two competing concerns. On the one hand, all manner of state and local laws can
diminish the significance of the right to vote without directly stopping any person from casting a
ballot. The Court has reasoned that the purposes of the Voting Rights Act would be undermined
by an interpretation that permitted states to avoid its strictures through clever devices that
formally did not involve voting. On the other hand, however, Congress did not intend to require
every state and local law to be precleared. Requiring changes “with respect to voting,” in other
words, implied a desire to exempt some category of changes in laws not respecting voting.
Exactly which laws comprise that category, however, has long been a matter of dispute, as the
following cases attest.

ALLEN v. STATE BOARD OF ELECTIONS

Supreme Court of the United States
393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969)

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court [in which MR. JUSTICE BRENNAN,
MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE FORTAS joined, and in which MR. JUSTICE
DOUGLAS and MR. JUSTICE MARSHALL joined in relevant part]. * * *
Under § 5 [of the Voting Rights Act of 1965], if a State covered by the Act passes any
“voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1964,” no person can be deprived of
his right to vote “for failure to comply with” the new enactment “unless and until” the State
seeks and receives a declaratory judgment in the United States District Court for the District of
Columbia that the new enactment “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.”
However, § 5 does not necessitate that a covered State obtain a declaratory judgment action
before it can enforce any change in its election laws. It provides that a State may enforce a new
enactment if the State submits the new provision to the Attorney General of the United States
and, within 60 days of the submission, the Attorney General does not formally object to the new
statute or regulation. The Attorney General does not act as a court in approving or disapproving
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the state legislation. If the Attorney General objects to the new enactment, the State may still
enforce the legislation upon securing a declaratory judgment in the District Court for the District
of Columbia. Also, the State is not required to first submit the new enactment to the Attorney
General as it may go directly to the District Court for the District of Columbia. The provision for
submission to the Attorney General merely gives the covered State a rapid method of rendering a
new state election law enforceable. 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; there is no further remedy provided by § 5.
In these four cases, the States have passed new laws or issued new regulations. The central
issue is whether these provisions fall within the prohibition of § 5 that prevents the enforcement
of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with
respect to voting” unless the State first complies with one of the section’s approval procedures.
No. 25, Fairley v. Patterson, involves a 1966 amendment to § 2870 of the Mississippi Code
of 1942. The amendment provides that the board of supervisors of each county may adopt an
order providing that board members be elected at large by all qualified electors of the county.
***
No. 26, Bunton v. Patterson, concerns a 1966 amendment to § 6271-08 of the Mississippi
Code. The amendment provides that in 11 specified counties, the county superintendent of
education shall be appointed by the board of education. Before the enactment of this amendment,
all these counties had the option of electing or appointing the superintendent. * * *
No. 36, Whitley v. Williams, involves a 1966 amendment to § 3260 of the Mississippi Code,
which changed the requirements for independent candidates running in general elections. The
amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a
primary election may thereafter be placed on the ballot as an independent candidate in the
general election; (2) the time for filing a petition as an independent candidate is changed to 60
days before the primary election from the previous 40 days before the general election; (3) the
number of signatures of qualified electors needed for the independent qualifying petition is
increased substantially; and (4) a new provision is added that each qualified elector who signs
the independent qualifying petition must personally sign the petition and must include his polling
precinct and county. * * *
In all three of these cases, the three-judge District Court ruled that the amendments to the
Mississippi Code did not come within the purview of and are not covered by § 5, and dismissed
the complaints. Appellants brought direct appeals to this Court. * * *
No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of
Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24-252
of the Code of Virginia of 1950 which provides, inter alia, that “any voter [may] place on the
official ballot the name of any person in his own handwriting . . . .” The Virginia Code further
provides that voters with a physical incapacity may be assisted in preparing their ballots. For
example, one who is blind may be aided in the preparation of his ballot by a person of his choice.
Those unable to mark their ballots due to any other physical disability may be assisted by one of
the election judges. However, no statutory provision is made for assistance to those who wish to
write in a name, but who are unable to do so because of illiteracy. When Virginia was brought
under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently
thought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter’s own
handwriting was incompatible with the provisions of § 4(a) of the Act suspending the
enforcement of any test or device as a prerequisite to voting. Therefore, the Board of Elections
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issued a bulletin to all election judges, instructing that the election judge could aid any qualified
voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his
ballot due to illiteracy.
Appellants are functionally illiterate registered voters from the Fourth Congressional District
of Virginia. They * * * clai[m] that [in requiring the voter’s choice to be in his or her own
handwriting] § 24-252 and the modifying bulletin violate the Equal Protection Clause of the
Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened
and the complaint dismissed. * * *
These suits were instituted by private citizens; an initial question is whether private litigants
may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. * * *
The Voting Rights Act does not explicitly grant or deny private parties authorization to seek
a declaratory judgment that a State has failed to comply with the provisions of the Act. However,
§ 5 does provide that “no person shall be denied the right to vote for failure to comply with [a
new state enactment covered by, but not approved under, § 5].” Analysis of this language in light
of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a
new state enactment is governed by § 5. Further, after proving that the State has failed to submit
the covered enactment for § 5 approval, the private party has standing to obtain an injunction
against further enforcement, pending the State’s submission of the legislation pursuant to § 5.
The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for
all citizens. Congress realized that existing remedies were inadequate to accomplish this purpose
and drafted an unusual, and in some aspects a severe, procedure for insuring that States would
not discriminate on the basis of race in the enforcement of their voting laws.
The achievement of the Act’s laudable goal could be severely hampered, however, if each
citizen were required to depend solely on litigation instituted at the discretion of the Attorney
General. For example, the provisions of the Act extend to States and the subdivisions thereof.
The Attorney General has a limited staff and often might be unable to uncover quickly new
regulations and enactments passed at the varying levels of state government. It is consistent with
the broad purpose of the Act to allow the individual citizen standing to insure that his city or
county government complies with the § 5 approval requirements. * * *
* * * The guarantee of § 5 that no person shall be denied the right to vote for failure to
comply with an unapproved new enactment subject to § 5, might well prove an empty promise
unless the private citizen were allowed to seek judicial enforcement of the prohibition. * * *
Finding that these cases are properly before us, we turn to a consideration of whether these
state enactments are subject to the approval requirements of § 5. These requirements apply to
“any voting qualification or prerequisite to voting, or standard, practice, or procedure with
respect to voting . . . .” 42 U.S.C. § 1973c. The Act further provides that the term “voting” “shall
include all action necessary to make a vote effective in any primary, special, or general election,
including, but not limited to, registration, listing . . . or other action required by law prerequisite
to voting, casting a ballot, and having such ballot counted properly and included in the
appropriate totals of votes cast with respect to candidates for public or party office and
propositions for which votes are received in an election.” 42 U.S.C. § 1973l(c)(1). Appellees in
the Mississippi cases maintain that § 5 covers only those state enactments which prescribe who
may register to vote. While accepting that the Act is broad enough to insure that the votes of all
citizens should be cast, appellees urge that § 5 does not cover state rules relating to the
qualification of candidates or to state decisions as to which offices shall be elective.
Appellees rely on the legislative history of the Act to support their view, citing the testimony
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of former Assistant Attorney General Burke Marshall before a subcommittee of the House
Committee on the Judiciary:
“Mr. CORMAN. We have not talked at all about whether we have to be concerned with not only who can
vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have
you given any consideration to whether or not this bill ought to address itself to the qualifications for
running for public office as well as the problem of registration?
“Mr. MARSHALL. The problem that the bill was aimed at was the problem of registration, Congressman.
If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to
deal with in the bill.”

Appellees in No. 25 also argue that § 5 was not intended to apply to a change from district to
at-large voting, because application of § 5 would cause a conflict in the administration of
reapportionment legislation. They contend that under such a broad reading of § 5, enforcement of
a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even
though the plan had been approved by a federal court. Appellees urge that Congress could not
have intended to force the States to submit a reapportionment plan to two different courts.29
We must reject the narrow construction that appellees would give to § 5. The Voting Rights
Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of
denying citizens their right to vote because of their race. * * * We are convinced that in passing
the Voting Rights Act, Congress intended that state enactments such as those involved in the
instant cases be subject to the § 5 approval requirements.
The legislative history on the whole supports the view that Congress intended to reach any
state enactment which altered the election law of a covered State in even a minor way. For
example, § 2 of the Act, as originally drafted, included a prohibition against any “qualification or
procedure.” During the Senate hearings on the bill, Senator Fong expressed concern that the
word “procedure” was not broad enough to cover various practices that might effectively be
employed to deny citizens their right to vote. In response, the Attorney General said he had no
objection to expanding the language of the section, as the word “procedure” “was intended to be
all-inclusive of any kind of practice.” Indicative of an intention to give the Act the broadest
possible scope, Congress expanded the language in the final version of § 2 to include any “voting
qualifications or prerequisite to voting, or standard, practice, or procedure.” 42 U.S.C. § 1973.
Similarly, in the House hearings, it was emphasized that § 5 was to have a broad scope[.] * * *
Also, the remarks of both opponents and proponents during the debate over passage of the
Act demonstrate the Congress was well aware of another admonition of the Attorney General.
He had stated in the House hearings that two or three types of changes in state election law (such
as changing from paper ballots to voting machines) could be specifically excluded from § 5
without undermining the purpose of the section. He emphasized, however, that there were
“precious few” changes that could be excluded “because there are an awful lot of things that
could be started for purposes of evading the 15th amendment if there is the desire to do so.” It is
significant that Congress chose not to include even these minor exceptions in § 5, thus indicating
an intention that all changes, no matter how small, be subjected to § 5 scrutiny.
29
Appellees in No. 3 also argue that § 5 does not apply to the regulation in their case, because that regulation was
issued in an attempt to comply with the provisions of the Voting Rights Act. They argue that if § 5 applies to the
Virginia regulation, covered States would be prohibited from quickly complying with the Act. We cannot accept this
argument, however. A State is not exempted from the coverage of § 5 merely because its legislation is passed in an
attempt to comply with the provisions of the Act. To hold otherwise would mean that legislation, allegedly passed to
meet the requirements of the Act, would be exempted from § 5 coverage—even though it would have the effect of
racial discrimination. It is precisely this situation Congress sought to avoid in passing § 5.
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In light of the mass of legislative history to the contrary, especially the Attorney General’s
clear indication that the section was to have a broad scope and Congress’ refusal to engraft even
minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be
given determinative weight. Indeed, in any case where the legislative hearings and debate are so
voluminous, no single statement or excerpt of testimony can be conclusive. * * *
The weight of the legislative history and an analysis of the basic purposes of the Act indicate
that the enactment in each of these cases constitutes a “voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect to voting” within the meaning of § 5.
No. 25 involves a change from district to at-large voting for county supervisors. The right to
vote can be affected by a dilution of voting power as well as by an absolute prohibition on
casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 (1964) [p. XXX]. Voters who are
members of a racial minority might well be in the majority in one district, but in a decided
minority in the county as a whole. This type of change could therefore nullify their ability to
elect the candidate of their choice just as would prohibiting some of them from voting.
In No. 26 an important county officer in certain counties was made appointive instead of
elective. The power of a citizen’s vote is affected by this amendment; after the change, he is
prohibited from electing an officer formerly subject to the approval of the voters. Such a change
could be made either with or without a discriminatory purpose or effect; however, the purpose of
§ 5 was to submit such changes to scrutiny.
The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate
to gain a position on the general election ballot. These changes might also undermine the
effectiveness of voters who wish to elect independent candidates. One change involved in No. 36
deserves special note. The amendment provides that no person who has voted in a primary
election may thereafter be placed on the ballot as an independent candidate in the general
election. This is a “procedure with respect to voting” with substantial impact. One must forego
his right to vote in his party primary if he thinks he might later wish to become an independent
candidate.
The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases,
we do not consider whether this change has a discriminatory purpose or effect. It is clear,
however, that the new procedure with respect to voting is different from the procedure in effect
when the State became subject to the Act; therefore, the enactment must meet the approval
requirements of § 5 in order to be enforceable. * * *
In No. 3 the judgment of the District Court is vacated; in Nos. 25, 26, and 36 the judgments
of the District Court are reversed. All four cases are remanded to the District Courts with
instructions to issue injunctions restraining the further enforcement of the enactments until such
time as the States adequately demonstrate compliance with § 5.
It is so ordered.

MR. JUSTICE HARLAN, concurring in part and dissenting in part. * * *1

* * * It is best to begin by delineating the precise area of difference between the position the
majority adopts and the one which I consider represents the better view of the statute. We are in
agreement that in requiring federal review of changes in any “standard, practice, or procedure
with respect to voting,” Congress intended to include all state laws that changed the process by
which voters were registered and had their ballots counted. The Court, however, goes further to
hold that a State covered by the Act must submit for federal approval all those laws that could
1
I concur in the Court’s disposition of the complex jurisdictional issues these cases present. * * *
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arguably have an impact on Negro voting power, even though the manner in which the election
is conducted remains unchanged. I believe that this reading of the statute should be rejected on
several grounds. It ignores the place of § 5 in the larger structure of the Act; it is untrue to the
statute’s language; and it is unsupported by the legislative history.
First, and most important, the Court’s construction ignores the structure of the complex
regulatory scheme created by the Voting Rights Act. The Court’s opinion assumes that § 5 may
be considered apart from the rest of the Act. In fact, however, the provision is clearly designed to
march in lock-step with § 4—the two sections cannot be understood apart from one another.
Section 4 is one of the Act’s central provisions, suspending the operation of all literacy tests and
similar “devices” for at least five years in States whose low voter turnout indicated that these
“tests” and “devices” had been used to exclude Negroes from the suffrage in the past. Section 5,
moreover, reveals that it was not designed to implement new substantive policies but that it was
structured to assure the effectiveness of the dramatic step that Congress had taken in § 4. The
federal approval procedure found in § 5 only applies to those States whose literacy tests or
similar “devices” have been suspended by § 4. As soon as a State regains the right to apply a
literacy test or similar “device” under § 4, it also escapes the commands of § 5.
The statutory scheme contains even more striking characteristics which indicate that § 5’s
federal review procedure is ancillary to § 4’s substantive commands. A State may escape § 5,
even though it has consistently violated this provision, so long as it has complied with § 4, and
has suspended the operation of literacy tests and other “devices” for five years. On the other
hand, no matter how faithfully a State complies with § 5, it remains subject to its commands so
long as it has not consistently obeyed § 4.
As soon as it is recognized that § 5 was designed solely to implement the policies of § 4, it
becomes apparent that the Court’s decision today permits the tail to wag the dog. * * * The
fourth section of the Act had the profoundly important purpose of permitting the Negro people to
gain access to the voting booths of the South once and for all. But the action taken by Congress
in § 4 proceeded on the premise that once Negroes had gained free access to the ballot box, state
governments would then be suitably responsive to their voice, and federal intervention would not
be justified. * * *
The Court’s construction of § 5 is even more surprising in light of the Act’s regional
application. For the statute, as the Court now construes it, deals with a problem that is national in
scope. I find it especially difficult to believe that Congress would single out a handful of States
as requiring stricter federal supervision concerning their treatment of a problem that may well be
just as serious in parts of the North as it is in the South.4
The difficulties with the Court’s construction increase even further when the language of the
statute is considered closely.7 When standing alone, the statutory formula requiring federal
4
Indeed, I would have very substantial constitutional difficulties with the statute if I were to accept such a
construction.
7
The Court seeks to strengthen its case by looking to the language of one of the definitional sections of the Act.
Section 14(c)(1) defines the term “vote” or “voting” to “include all action necessary to make a vote effective in any
primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other
action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included
in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which
votes are received in an election.” (Emphasis supplied.) All of the aspects of voting that are enumerated in this
definition concern the procedures by which voters are processed. When the statute cautions that its enumeration of
stages in the election process is not exclusive, it merely indicates that the change of any other procedure that
prevents the voter from having his ballot finally counted is also included within the range of the Act’s concern.
Surely the Court is entirely ignoring the textual context when it seeks to read the italicized phrases as embracing all
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approval for changes in any “standard, practice, or procedure with respect to voting” can be read
to support either the broad construction adopted by the majority or the one which I have
advanced. But the critical formula does not stand alone. Immediately following the statute’s
description of the federal approval procedure, § 5 proceeds to describe the type of relief an
aggrieved voter may obtain if a State enforces a new statute without obtaining the consent of the
appropriate federal authorities: “no person shall be denied the right to vote for failure to comply
with such qualification, prerequisite, standard, practice, or procedure.” (Emphasis supplied.) This
remedy serves to delimit the meaning of the formula in question. Congress was clearly
concerned with changes in procedure with which voters could comply. But a law, like that in
Fairley v. Patterson, No. 25, which permits all members of the County Board of Supervisors to
run in the entire county and not in smaller districts, does not require a voter to comply with
anything at all, and so does not come within the scope of the language used by Congress. * * *
The majority is left, then, relying on its understanding of the legislative history. With all
deference, I find that the history the Court has garnered undermines its case, insofar as it is
entitled to any weight at all. I refer not only to the unequivocal statement of Assistant Attorney
General Burke Marshall, which the Court concedes to be diametrically opposed to the
construction it adopts. For the lengthy testimony of Attorney General Katzenbach, upon which
the Court seems to rely, actually provides little more support for its position. Mr. Katzenbach,
unlike his principal assistant, was never directly confronted with the question raised here, and we
are left to guess as to his views. If guesses are to be made, however, surely it is important to note
that though the Attorney General used many examples to illustrate the operation of § 5, each of
them concerned statutes that had an immediate impact on voter qualifications or which altered
the manner in which the election was conducted. 8 One would imagine that if the Attorney
General believed that § 5 had the remarkable sweep the majority has now given it, one of his
hypotheticals would have betrayed that fact.
Section 5, then, should properly be read to require federal approval only of those state laws
that change either voter qualifications or the manner in which elections are conducted.
[Applying this standard, MR. JUSTICE HARLAN concluded that preclearance was required in all
of the cases under review except Fairley v. Patterson, No. 25, which involved a statute “giv[ing]
each county the right to elect its Board of Supervisors on an at-large basis.” In his view, the
nomination process for independents was the “functional equivalent of the political primary,”
which was explicitly covered by the Act; making a formerly elective office appointive took away
the right to vote for that office; and Virginia’s regulations concerning illiterates’ write-in votes
“quite obviously altered the manner in which an election is conducted.”]

[MR. JUSTICE MARSHALL, joined by MR. JUSTICE DOUGLAS, concurred in most of the Court’s
opinion, but dissented as to an omitted portion giving only prospective relief in the Mississippi
cases.]

MR. JUSTICE BLACK, dissenting.

Assuming the validity of the Voting Rights Act of 1965, as the Court does, I would agree
with its careful interpretation of the Act, and would further agree with its holding as to
electoral laws that affect the amount of political power Negroes will derive from the exercise of the franchise, even
when the way in which voters are processed remains unchanged. [Relocated. –Eds.]
8
The examples given by the Attorney General concerned changes in a State’s voting age, residence, or property
requirements; changes in the frequency that registrars’ offices are open; and changes from paper ballots to machines
or vice versa.
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jurisdiction and with its disposition of the four cases now before us. But I am still of the opinion
that for reasons stated in my separate opinion in South Carolina v. Katzenbach, 383 U.S. 301,
355-362 (1966) [p. XXX], a part of § 5 violates the United States Constitution. Section 5 * * * is
reminiscent of old Reconstruction days * * *. The Southern States were at that time deprived of
their right to pass laws on the premise that they were not then a part of the Union and therefore
could be treated with all the harshness meted out to conquered provinces. The constitutionality of
that doctrine was certainly not clear at that time. And whether the doctrine was constitutional or
not, I had thought that the whole Nation had long since repented of the application of this
“conquered province” concept, even as to the time immediately following the bitter Civil War. I
doubt that any of the 13 Colonies would have agreed to our Constitution if they had dreamed that
the time might come when they would have to go to a United States Attorney General or a
District of Columbia court with hat in hand begging for permission to change their laws. Still
less would any of these Colonies have been willing to agree to a Constitution that gave the
Federal Government power to force one Colony to go through such an onerous procedure while
all the other former Colonies, now supposedly its sister States, were allowed to retain their full
sovereignty. * * *
I would hold § 5 of the 1965 Voting Rights Act unconstitutional insofar as it commands
certain selected States to leave their laws in any field unchanged until they get the consent of
federal agencies to pass new ones.

Notes and Questions

1. In what way can the regulations at issue in this case be characterized as “standard[s],
practice[s], or procedure[s] with respect to voting”?
2. It is important to understand that the issue in this case was only whether the regulations
needed to go through the preclearance process. Changes in voting procedures in “covered
jurisdictions” must be submitted for preclearance even if those regulations are not themselves
discriminatory; indeed, the purpose of the preclearance process is to evaluate whether they are
discriminatory before they take effect. Thus, in holding that preclearance was necessary for each
of the regulations, the Court did not conclude that each of the regulations violated either the
VRA or the Constitution.
3. Should at-large voting structures be considered diminutions of minority voting power? In
an omitted portion of his opinion, Justice Harlan posited that “courts cannot intelligently
compare” the benefits of an at-large system with those of one based on single-member districts:
“Under one system, Negroes have some influence in the election of all officers; under the other,
minority groups have more influence in the selection of fewer officers.” 393 U.S. at 586 (Harlan,
J., concurring in part and dissenting in part). Accordingly, he argued, the Supreme Court should
have been reluctant to read the VRA as forcing courts to make such choices, as the D.C. District
Court must do in deciding whether to grant preclearance to plans that switch from single-member
to multi-member districts, or vice-versa.
4. Are the relative benefits of at-large and single-member-district systems any harder to
discern than are the relative benefits of elective and appointive offices? Recall that Justice Harlan
was willing to require changes of the latter type to be precleared.
5. Does the Court’s construction of the Act raise questions about its constitutionality not
resolved in South Carolina v. Katzenbach, 383 U.S. 301 (1966) [p. XXX]? We will consider this
question again later, in § D of this Chapter.
10

DOUGHERTY COUNTY BOARD OF EDUCATION V. WHITE

Supreme Court of the United States
439 U.S. 32, 99 S. Ct. 368, 58 L. Ed. 2d 269 (1978)

MR. JUSTICE MARSHALL delivered the opinion of the Court [in which MR. JUSTICE BRENNAN, MR.
JUSTICE WHITE, MR. JUSTICE BLACKMUN, and MR. JUSTICE STEVENS join].
Under § 5 of the Voting Rights Act of 1965, all States and political subdivisions covered by
§ 4 of the Act must submit any proposed change affecting voting, for preclearance by the
Attorney General or the District Court for the District of Columbia. At issue in this appeal is
whether a county board of education in a covered State must seek approval of a rule requiring its
employees to take unpaid leaves of absence while they campaign for elective office. * * *
The facts in this case are not in dispute. Appellee, a Negro, is employed as Assistant
Coordinator of Student Personnel Services by appellant Dougherty County Board of Education
(Board). In May 1972, he announced his candidacy for the Georgia House of Representatives.
Less than a month later, on June 12, 1972, the Board adopted Rule 58 without seeking prior
federal approval. Rule 58 provides:
“POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective
political office will be required to take a leave of absence, without pay, such leave becoming effective upon
the qualifying for such elective office and continuing for the duration of such political activity, and during
the period of service in such office, if elected thereto.”

Appellee qualified as a candidate for the Democratic primary in June 1972, and was
compelled by Rule 58 to take a leave of absence without pay. After his defeat in the August
primary, appellee was reinstated. Again in June 1974, he qualified as a candidate for the Georgia
House and was forced to take leave. He was successful in both the August primary and the
November general election. Accordingly, his leave continued through mid-November 1974.
Appellee took a third leave of absence in June 1976, when he qualified to run for re-election.
When it became clear in September that he would be unopposed in the November 1976, election,
appellee was reinstated. As a consequence of those mandatory leaves, appellee lost pay in the
amount of $2,810 in 1972, $4,780 in 1974, and $3,750 in 1976.
In June 1976, appellee filed this action in the Middle District of Georgia alleging that Rule
58 was a “standard, practice, or procedure with respect to voting” adopted by a covered entity,
and therefore subject to the preclearance requirements of § 5 of the Act. Appellee averred that he
was the first Negro in recent memory, perhaps since Reconstruction, to run for the Georgia
General Assembly from Dougherty County. The Board did not contest this fact, and further
acknowledged that it was aware of no individual other than appellee who had run for public
office while an employee of the Dougherty County Board of Education.
On cross-motions for summary judgment, the three-judge District Court held that Rule 58
should have been submitted for federal approval before implementation. * * * The District Court
therefore enjoined enforcement of Rule 58 pending compliance with the preclearance
requirements of § 5. We noted probable jurisdiction. * * *
Section 5 provides that, whenever a covered State or political subdivision “shall enact or seek
to administer any voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in force or effect on November 1, 1964,” it
may not implement that change until it either secures a determination from the District Court for
the District of Columbia 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” or submits the change to
 11

the Attorney General and he interposes no objection within 60 days. 42 U.S.C. § 1973c
(emphasis added). Although § 14(c)(1) expansively defines the term “voting” to “include all
action necessary to make a vote effective,” 42 U.S.C. § 1973l(c)(1), the Act itself nowhere
amplifies the meaning of the phrase “standard, practice, or procedure with respect to voting.”
Accordingly, in our previous constructions of § 5, we have sought guidance from the history and
purpose of the Act.
This Court first considered the scope of the critical language of § 5 in Allen v. State Board of
Elections, 393 U.S. 544 (1969) [p. XXX][.] * * * [T]he Allen Court held that the phrase
“standard, practice, or procedure” must be given the “broadest possible scope,” id., at 567, and
construed it to encompass candidate qualification requirements. Id., at 570. The Court concluded
that any enactment which burdens an independent candidate by “increasing the difficulty for
[him] to gain a position on the general election ballot” is subject to § 5, since such a measure
could “undermine the effectiveness” of voters who wish to elect nonaffiliated representatives.
393 U.S., at 565.
In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad
construction set forth in Allen. In Hadnott v. Amos, 394 U.S. 358 (1969), this Court held that an
Alabama statute requiring independent candidates to declare their intention to seek office two
months earlier than under prior procedures imposed “increased barriers” on candidacy, and
therefore warranted § 5 scrutiny. Similarly, in contexts other than candidate qualification, we
have interpreted § 5 expansively to mandate preclearance for changes in the location of polling
places; alterations of municipal boundaries; and reapportionment and redistricting plans.
Had Congress disagreed with this broad construction of § 5, it presumably would have
clarified its intent when reenacting the statute in 1970 and 1975. Yet, * * * “[a]fter extensive
deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was
repeatedly discussed, the Act was extended for five years, without any substantive modification
of § 5.” * * *
[A]ppellants contend that the Attorney General and District Court erred in treating Rule 58 as
a “standard, practice, or procedure with respect to voting[.]” In appellants’ view, Congress did
not intend to subject all internal personnel measures affecting political activity to federal
superintendence.
* * * Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather,
it specifically addresses the electoral process, singling out candidacy for elective office as a
disabling activity. Although not in form a filing fee, the Rule operates in precisely the same
fashion. By imposing substantial economic disincentives on employees who wish to seek
elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the
choices available to Dougherty County voters. Given the potential loss of thousands of dollars by
employees subject to Rule 58, the Board’s policy could operate as a more substantial inhibition
on entry into the elective process than many of the filing fee changes involving only hundreds of
dollars to which the Attorney General has successfully interposed objections. * * *
* * * Moreover, as a practical matter, Rule 58 implicates the political process to the same
extent as do other modifications that this Court and Congress have recognized § 5 to encompass,
such as changes in the location of polling places and alterations in the procedures for casting a
write-in vote.
We do not, of course, suggest that all constraints on employee political activity affecting
voter choice violate § 5. Presumably, most regulation of political involvement by public
employees would not be found to have an invidious purpose or effect. Yet the same could be said
12

of almost all changes subject to § 5. According to the most recent figures available, the Voting
Rights Section of the Civil Rights Division processes annually some 1,800 submissions
involving over 3,100 changes and interposes objections to less than 2%. Approximately 91% of
these submissions receive clearance without further exchange of correspondence. Thus, in
determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is, in
fact, innocuous and likely to be approved, but whether it has a potential for discrimination.
Without intimating any views on the substantive question of Rule 58’s legitimacy as a
nonracial personnel measure, we believe that the circumstances surrounding its adoption and its
effect on the political process are sufficiently suggestive of the potential for discrimination to
demonstrate the need for preclearance. Appellee was the first Negro in recent years to seek
election to the General Assembly from Dougherty County, an area with a long history of racial
discrimination in voting. Less than a month after appellee announced his candidacy, the Board
adopted Rule 58, concededly without any prior experience of absenteeism among employees
seeking office. That the Board made its mandatory leave-of-absence requirement contingent on
candidacy, rather than on absence during working hours, underscores the Rule’s potential for
inhibiting participation in the electoral process.12
* * * [W]e hold that obstacles to candidate qualification such as the Rule involved here are
“standard[s], practice[s], or procedure[s] with respect to voting.” * * *
[T]he judgment of the District Court is
Affirmed.

MR. JUSTICE STEWART dissents for the reasons expressed in * * * the dissenting opinion of MR.
JUSTICE POWELL.

MR. JUSTICE STEVENS, concurring.

[The Board should not be viewed as a “political subdivision” within the meaning of the
VRA, see United States v. Board of Comm’rs of Sheffield, 435 U.S. 110, 140-150 (STEVENS, J.,
dissenting). Nevertheless,] MR. JUSTICE MARSHALL has demonstrated that the rationale of the
Court’s prior decisions compels the result it reaches today. Accordingly, I join his opinion for the
Court.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE [BURGER] and MR. JUSTICE REHNQUIST join,
dissenting. * * *
Section 5 requires federal preclearance before a “political subdivision” of a State covered by
§ 4 of the Act may enforce a change in “any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting . . . .” This provision marked a radical
departure from traditional notions of constitutional federalism, a departure several Members of
this Court have regarded as unconstitutional. * * * Congress tempered the intrusion of the
Federal Government into state affairs, however, by limiting the Act’s coverage to voting
regulations. * * *
12
The dissent suggests that Rule 58 is directed only toward barring “the expenditure of public funds to support the
candidacy of an employee whose time and energies may be devoted to campaigning, rather than counseling
schoolchildren.” Insofar as the Board is concerned about its employees’ failure to discharge their contractual
obligations while standing for office, it has a variety of means to vindicate its interest. The Board may, for example,
prescribe regulations governing absenteeism, or may terminate or suspend the contracts of employees who willfully
neglect their professional responsibilities. What it may not do is adopt a rule that explicitly and directly burdens the
electoral process without preclearance.
 13

[T]he Court’s holding that Rule 58 is a “standard, practice, or procedure with respect to
voting” is difficult to understand. It tortures the language of the Act to conclude that this
personnel regulation, having nothing to do with the conduct of elections as such, is state action
“with respect to voting.” No one is denied the right to vote; nor is anyone’s exercise of the
franchise impaired.
To support its interpretation of § 5, the Court has constructed a tenuous theory, reasoning
that, because the right to vote includes the right to vote for whoever may wish to run for office,
any discouragement given any potential candidate may deprive someone of the right to vote.
* * * But the notion that a State or locality imposes a “qualification” on candidates by refusing to
support their campaigns with public funds is without support in reason or precedent.
As no prior § 5 decision arguably governs the resolution of this case, the Court draws upon
broad dictum that, taken from its context, is meaningless. For example, in Allen v. State Board of
Elections, the Court suggested that § 5 would require clearance of “any state enactment which
alter[s] the election law of a covered State in even a minor way.” Even if the language in Allen
were viewed as necessary to the Court’s holding in that case, it would not support today’s
decision. In Allen, as in each of the cases relied upon today, the Court was considering an
enactment relating directly to the way in which elections are conducted: either by structuring the
method of balloting, setting forth the qualifications for candidates, or determining who shall be
permitted to vote. These enactments could be said to be “with respect to voting” in elections.
Rule 58, on the other hand, effects no change in an election law or in a law regulating who may
vote or when and where they may do so. It is a personnel rule directed to the resolution of a
personnel problem: the expenditure of public funds to support the candidacy of an employee
whose time and energies may be devoted to campaigning, rather than to counseling
schoolchildren.
After extending the scope of § 5 beyond anything indicated in the statutory language or in
precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs
from a “neutral personnel practice governing all forms of absenteeism,” as it “specifically
addresses the electoral process.” Thus, the Court intimates that it would not require Rule 58 to be
precleared if the rule required Board employees to take unpaid leaves of absence whenever an
extracurricular responsibility required them frequently to be absent from their duties—whether
that responsibility derived from candidacy for office, campaigning for a friend who is running
for office, fulfilling civic duties, or entering into gainful employment with a second employer.
The Court goes on, however, to give as the principal reason for extension of § 5 to Rule 58 the
effect of such rules on potential candidates for office. What the Court fails to note is that the
effect on a potential candidate of a “neutral personnel practice governing all forms of
absenteeism” is no less than the effect of Rule 58 as enacted by the Dougherty County School
Board. Thus, under a general absenteeism provision, the appellee would go without pay just as
he did under Rule 58; the only difference would be that Board employees absent for reasons
other than their candidacy would join the appellee on leave.
Under the Court’s rationale, therefore, even those enactments making no explicit reference to
the electoral process would have to be cleared through the Attorney General or the District Court
for the District of Columbia. Indeed, if the Court truly means that any incidental impact on
elections is sufficient to trigger the preclearance requirement of § 5, then it is difficult to imagine
what sorts of state or local enactments would not fall within the scope of that section. * * *
* * * As respectful as I am of my Brothers’ opinions, I view the Court’s decision as simply a
judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history.
14

Notes and Questions

1. Should “the potential for discrimination” suggested by the circumstances surrounding the
passage of Rule 58 have any bearing on whether preclearance should be required? Should it
matter, for example, that Mr. White was “the first Negro in recent memory, perhaps since
Reconstruction, to run for the Georgia General Assembly from Dougherty County? Should it
matter that Rule 58 was passed less than a month after Mr. White first announced his candidacy?
Or should one determine the need for preclearance based exclusively on other factors? Which
factors other than the text of the proposed change would you consider? Would preclearance have
been required if a different jurisdiction had passed a regulation like Rule 58 under less suspicious
circumstances?
2. Would preclearance be required for a policy requiring resignation for “all forms of
absenteeism”?
3. As broad as White’s holding is, there remain some laws passed by covered jurisdictions
that are not subject to preclearance. Consider the following case:

PRESLEY v. ETOWAH COUNTY COMMISSION

Supreme Court of the United States
502 U.S. 491, 112 S. Ct. 820, 117 L. Ed. 2d 51 (1992)

JUSTICE KENNEDY delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE
O’CONNOR, JUSTICE SCALIA, JUSTICE SOUTER, and JUSTICE THOMAS join].
In various Alabama counties voters elect members of county commissions whose principal
function is to supervise and control the maintenance, repair, and construction of the county
roads. The consolidated appeals now before us concern certain changes in the decisionmaking
authority of the elected members on two different county commissions, and the question to be
decided is whether these were changes “with respect to voting” within the meaning of § 5 of the
Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c. * * *

I***
A
We consider first the Etowah County Commission. On November 1, 1964, commission
members were elected at large under a “residency district” system. The entire electorate of
Etowah County voted on candidates for each of the five seats. Four of the seats corresponded to
the four residency districts of the county. Candidates were required to reside in the appropriate
district. The fifth member, the chairman, was not subject to a district residency requirement,
though residency in the county itself was a requirement.
Each of the four residency districts functioned as a road district. The commissioner residing
in the district exercised control over a road shop, equipment, and road crew for that district. It
was the practice of the commission to vote as a collective body on the division of funds among
the road districts, but once funds were divided each commissioner exercised individual control
over spending priorities within his district. The chairman was responsible for overseeing the
solid waste authority, preparing the budget, and managing the courthouse building and grounds.
Under a consent decree issued in 1986, the commission is being restructured, so that after a
transition period there will be a six-member commission, with each of the members elected by
the voters of a different district. The changes required by the consent decree were precleared by
the Attorney General. For present purposes, it suffices to say that when this litigation began the
 15

commission consisted of four holdover members who had been on the commission before the
entry of the consent decree and two new members elected from new districts. Commissioner
Williams, who is white, was elected from new district 6, and Commissioner Presley, who is
black, was elected from new district 5. Presley is the principal appellant in the Etowah County
case. His complaint relates not to the elections but to actions taken by the four holdover members
when he and Williams first took office.
On August 25, 1987, the commission passed the “Road Supervision Resolution.” It provided
that each holdover commissioner would continue to control the workers and operations assigned
to his respective road shop, which, it must be remembered, accounted for all the road shops the
county had. It also gave the four holdovers joint responsibility for overseeing the repair,
maintenance, and improvement of all the roads of Etowah County in order to pick up the roads in
the districts where the new commissioners resided. The new commissioners, now foreclosed
from exercising any authority over roads, were given other functions under the resolution.
Presley was to oversee maintenance of the county courthouse and Williams the operation of the
engineering department. The Road Supervision Resolution was passed by a 4-to-2 margin, with
the two new commissioners dissenting.
The same day the Road Supervision Resolution was passed, the commission passed a second,
the so-called “Common Fund Resolution.” It provides in part that
“all monies earmarked and budgeted for repair, maintenance and improvement of the streets, roads and
public ways of Etowah County [shall] be placed and maintained in common accounts, [shall] not be
allocated, budgeted or designated for use in districts, and [shall] be used county-wide in accordance with
need, for the repair, maintenance and improvement of all streets, roads and public ways in Etowah County
which are under the jurisdiction of the Etowah County Commission.”

This had the effect of altering the prior practice of allowing each commissioner full authority to
determine how to spend the funds allocated to his own district. The Etowah County Commission
did not seek judicial or administrative preclearance of either the Road Supervision Resolution or
the Common Fund Resolution. The District Court held that the Road Supervision Resolution was
subject to preclearance but that the Common Fund Resolution was not. No appeal was taken
from the first ruling, so only the Common Fund Resolution is before us in the Etowah County
case.

B
We turn next to the background of the Russell County Commission. On November 1, 1964, it
had three commissioners. Like the members of the Etowah County Commission before the
consent decree change, Russell County Commissioners were elected at large by the entire
electorate, subject to a requirement that a candidate for commissioner reside in the district
corresponding to the seat he or she sought. A 1972 federal court order required that the
commission be expanded to include five members. The two new members were both elected at
large from one newly created residency district for Phenix City, the largest city in Russell
County. Following the implementation of the court order, each of the three rural commissioners
had individual authority over his own road shop, road crew, and equipment. The three rural
commissioners also had individual authority for road and bridge repair and construction within
their separate residency districts. Although funding for new construction and major repair
projects was subject to a vote by the entire commission, individual commissioners could
authorize expenditures for routine repair and maintenance work as well as routine purchase
orders without seeking approval from the entire commission.
16

Following the indictment of one commissioner on charges of corruption in Russell County

road operations, in May 1979 the commission passed a resolution delegating control over road
construction, maintenance, personnel, and inventory to the county engineer, an official appointed
by the entire commission and responsible to it. * * * Although the May 1979 resolution may
have sufficed for the necessary delegation of authority to the county engineer, the commission
also requested the state legislature to pass implementing legislation. The Alabama Legislature
did so[.] * * * The parties refer to abolition of the individual road districts and transfer of
responsibility for all road operations to the county engineer as the adoption of a “Unit System.”
Neither the resolution nor the statute which authorized the Unit System was submitted for
preclearance under § 5.
Litigation involving the Russell County Commission led to a 1985 consent decree that
enlarged the commission to seven members and replaced the at-large election system with
elections on a district-by-district basis. Without any mention of the Unit System changes, the
consent decree was precleared by the Department of Justice under § 5. Following its
implementation, appellants Mack and Gosha were elected in 1986. They are Russell County’s
first black county commissioners in modern times.

C***
[T]he District Court held that neither the Common Fund Resolution of the Etowah County
Commission nor the adoption of the Unit System in Russell County was subject to § 5
preclearance. * * * We affirm * * *.

II * * *
After South Carolina v. Katzenbach [383 U.S. 301 (1964)] [p. XXX] upheld the Voting
Rights Act against a constitutional challenge, it was not until we heard Allen v. State Bd. of
Elections, 393 U.S. 544 (1969) [p. XXX], that we were called upon to decide whether particular
changes were covered by § 5. There we rejected a narrow construction, one which would have
limited § 5 to state rules prescribing who may register to vote. We held that the section applies
also to state rules relating to the qualifications of candidates and to state decisions as to which
offices shall be elective. * * * Our decision, and its rationale, have proved sound, and we adhere
to both.
In giving a broad construction to § 5 in Allen, we noted that “Congress intended to reach any
state enactment which altered the election law of a covered State in even a minor way.” Id., at
566. Relying on this language and its application in later cases, appellants and the United States
now argue that because there is no de minimis exception to § 5, the changes at issue here must be
subject to preclearance. This argument, however, assumes the answer to the principal question in
the case: whether the changes at issue are changes in voting, or as we phrased it in Allen,
“election law.” * * *
Our cases since Allen reveal a consistent requirement that changes subject to § 5 pertain only
to voting. Without implying that the four typologies exhaust the statute’s coverage, we can say
these later cases fall within one of the four factual contexts presented in the Allen cases. First, we
have held that § 5 applies to cases like Allen v. State Bd. of Elections itself, in which the changes
involved the manner of voting. See Perkins v. Matthews, 400 U.S. 379, 387 (1971) (location of
polling places). Second, we have held that § 5 applies to cases like Whitley v. Williams, which
involve candidacy requirements and qualifications. See NAACP v. Hampton County Election
Comm’n, 470 U.S. 166 (1985) (change in filing deadline); Hadnott v. Amos, 394 U.S. 358 (1969)
 17

(same); Dougherty County Bd. of Ed. v. White, 439 U.S. 32 (1978) (rule requiring board of
education members to take unpaid leave of absence while campaigning for office). Third, we
have applied § 5 to cases like Fairley v. Patterson, which concerned changes in the composition
of the electorate that may vote for candidates for a given office. See Perkins v. Matthews, 400
U.S., at 394 (change from ward to at-large elections); id., at 388 (boundary lines of voting
districts); City of Richmond v. United States, 422 U.S. 358 (1975) (same). Fourth, we have made
clear that § 5 applies to changes, like the one in Bunton v. Patterson, affecting the creation or
abolition of an elective office. See McCain v. Lybrand, 465 U.S. 236 (1984) (appointed officials
replaced by elected officials); Lockhart v. United States, 460 U.S. 125 (1983) (increase in
number of city councilors).
The first three categories involve changes in election procedures, while all the examples
within the fourth category might be termed substantive changes as to which offices are elective.
But whether the changes are of procedure or substance, each has a direct relation to voting and
the election process.

III
A comparison of the changes at issue here with those in our prior decisions demonstrates that
the present cases do not involve changes covered by the Act.

A
The Etowah County Commission’s Common Fund Resolution is not a change within any of
the categories recognized in Allen or our later cases. It has no connection to voting procedures: It
does not affect the manner of holding elections, it alters or imposes no candidacy qualifications
or requirements, and it leaves undisturbed the composition of the electorate. It also has no
bearing on the substance of voting power, for it does not increase or diminish the number of
officials for whom the electorate may vote. Rather, the Common Fund Resolution concerns the
internal operations of an elected body.
Appellants argue that the Common Fund Resolution is a covered change because after its
enactment each commissioner has less individual power than before the resolution. A citizen
casting a ballot for a commissioner today votes for an individual with less authority than before
the resolution, and so, it is said, the value of the vote has been diminished.
Were we to accept appellants’ proffered reading of § 5, we would work an unconstrained
expansion of its coverage. Innumerable state and local enactments having nothing to do with
voting affect the power of elected officials. When a state or local body adopts a new
governmental program or modifies an existing one it will often be the case that it changes the
powers of elected officials. So too, when a state or local body alters its internal operating
procedures, for example by modifying its subcommittee assignment system, it “implicate[s] an
elected official’s decisionmaking authority.”
Appellants and the United States fail to provide a workable standard for distinguishing
between changes in rules governing voting and changes in the routine organization and
functioning of government. Some standard is necessary, for in a real sense every decision taken
by government implicates voting. This is but the felicitous consequence of democracy, in which
power derives from the people. Yet no one would contend that when Congress enacted the
Voting Rights Act it meant to subject all or even most decisions of government in covered
jurisdictions to federal supervision. Rather, the Act by its terms covers any “voting qualification
or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C.
18

§ 1973c. A faithful effort to implement the design of the statute must begin by drawing lines
between those governmental decisions that involve voting and those that do not. * * *
* * * The all but limitless minor changes in the allocation of power among officials and the
constant adjustments required for the efficient governance of every covered State illustrate the
necessity for us to formulate workable rules to confine the coverage of § 5 to its legitimate
sphere: voting.
Changes which affect only the distribution of power among officials are not subject to § 5
because such changes have no direct relation to, or impact on, voting. The Etowah County
Commission’s Common Fund Resolution was not subject to the preclearance requirement.

B
We next consider Russell County’s adoption of the Unit System and its concomitant transfer
of operations to the county engineer. Of the four categories of changes in rules governing voting
we have recognized to date, there is not even an arguable basis for saying that adoption of the
Unit System fits within any of the first three. As to the fourth category, it might be argued that
the delegation of authority to an appointed official is similar to the replacement of an elected
official with an appointed one, the change we held subject to § 5 in Bunton v. Patterson. This
approach, however, would ignore the rationale for our holding: “[A]fter the change, [the citizen]
is prohibited from electing an officer formerly subject to the approval of the voters.” Allen, 393
U.S., at 569-570. In short, the change in Bunton v. Patterson involved a rule governing voting
not because it effected a change in the relative authority of various governmental officials, but
because it changed an elective office to an appointive one.
The change in Russell County does not prohibit voters “from electing an officer formerly
subject to the[ir] approval.” Both before and after the change the citizens of Russell County were
able to vote for the members of the Russell County Commission. To be sure, after the 1979
resolution each commissioner exercised less direct authority over road operations, that authority
having been delegated to an official answerable to the commission. But as we concluded with
respect to Etowah County, the fact that an enactment alters an elected official’s powers does not
in itself render the enactment a rule governing voting.
It is a routine part of governmental administration for appointive positions to be created or
eliminated and for their powers to be altered. Each time this occurs the relative balance of
authority is altered in some way. The making or unmaking of an appointive post often will result
in the erosion or accretion of the powers of some official responsible to the electorate, but it does
not follow that those changes are covered by § 5. By requiring preclearance of changes with
respect to voting, Congress did not mean to subject such routine matters of governance to federal
supervision. Were the rule otherwise, neither state nor local governments could exercise power
in a responsible manner within a federal system. * * *
We need not consider here whether an otherwise uncovered enactment of a jurisdiction
subject to the Voting Rights Act might under some circumstances rise to the level of a de facto
replacement of an elective office with an appointive one, within the rule of Bunton v. Patterson.
For present purposes it suffices to note that the Russell County Commission retains substantial
authority, including the power to appoint the county engineer and to set his or her budget. The
change at issue in Russell County is not a covered change.

IV
The United States urges that despite our understanding of the language of § 5, we should
 19

defer to its administrative construction of the provision. We have recognized that “the
construction placed upon the [Voting Rights] Act by the Attorney General . . . is entitled to
considerable deference.” NAACP v. Hampton County Election Comm’n, 470 U.S., at 178-179.
But the principle has its limits. Deference does not mean acquiescence. * * *
* * * To be sure, reasonable minds may differ as to whether some particular changes in the
law of a covered jurisdiction should be classified as changes in rules governing voting. In that
sense § 5 leaves a gap for interpretation to fill. When the Attorney General makes a reasonable
argument that a contested change should be classified as a change in a rule governing voting, we
can defer to that judgment. But § 5 is unambiguous with respect to the question whether it covers
changes other than changes in rules governing voting: It does not. The administrative position in
the present cases is not entitled to deference, for it suggests the contrary. The United States
argues that the changes are covered by § 5 because they implicate the decisionmaking authority
of elected officials, even though they are not changes in rules governing voting. This argument
does not meet the express requirement of the statute.

V***
If federalism is to operate as a practical system of governance and not a mere poetic ideal, the
States must be allowed both predictability and efficiency in structuring their governments.
Constant minor adjustments in the allocation of power among state and local officials serve this
elemental purpose.
Covered changes must bear a direct relation to voting itself. That direct relation is absent in
both cases now before us. The changes in Etowah and Russell Counties affected only the
allocation of power among governmental officials. They had no impact on the substantive
question whether a particular office would be elective or the procedural question how an election
would be conducted. Neither change involves a new “voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973c.
The judgment of the District Court is affirmed.
It is so ordered.

JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE BLACKMUN join, dissenting. * * *
Changes from district voting to at-large voting, the gerrymandering of district boundary lines,
and the replacement of an elected official with an appointed official all share the characteristic of
enhancing the power of the majority over a segment of the political community that might
otherwise be adequately represented. A resolution that reallocates decisionmaking power by
transferring authority from an elected district representative to an official, or a group, controlled
by the majority, has the same potential for discrimination against the constituents in the
disadvantaged districts [and should, therefore, be precleared]. * * * To hold otherwise, as the
Court does today, leaves covered States free to evade the requirements of § 5, and to undermine
the purpose of the Act, simply by transferring the authority of an elected official, who happens to
be black, to another official or group controlled by the majority. * * *
I would therefore reverse in both cases.

Notes and Questions

1. Was preclearance required for Etowah County’s Road Supervision Resolution? As the
Court noted, the District Court held that preclearance of that Resolution was required, and the
County did not appeal that determination. Justice Stevens argued that “[t]he logic of [the
20

majority’s] analysis would lead to the conclusion that” the Resolution did not adequately relate
to “voting” to come within § 5, “but one cannot be sure because the Court recognizes that an
otherwise uncovered enactment ‘might under some circumstances rise to the level of a de facto
replacement of an elective office with an appointive one.’ ” 502 U.S. at 524 n.24 (Stevens, J.,
dissenting).
2. The cases we have encountered thus far in this Chapter have involved the question
whether certain types of laws required preclearance. They therefore focused on what the new law
was. Later cases had to confront the who question. Specifically, covered jurisdictions must
preclear voting changes, but not every voting law administered by a covered jurisdiction is
enacted by that jurisdiction. In Lopez v. Monterey County, 525 U.S. 266 (1999), the Supreme
Court considered whether the County was required to preclear changes required by California
state law. The County was a covered jurisdiction, but the state was not. The Court concluded that
preclearance was required, even if the County did not exercise any discretion in implementing
the state law. The Court relied on “the face of the [Voting Rights] Act itself” in holding that
preclearance was required whenever a covered jurisdiction “seeks to administer” a voting
change, whether or not that administration encompasses discretion. Id. at 278.
3. But what if the covered jurisdiction “seeks to administer” a change that is required not by
state law, but by a federal court? Again, the answer is complicated. Where the federal court is
entirely responsible for the content of the change, the Court has created an exemption to the
preclearance requirement. Because it would raise grave separation-of-powers concerns to require
a federal court’s decision to be precleared by the Attorney General or the D.C. District Court, cf.
Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792), the Court concluded that the federal court’s plan
need not be precleared. See Connor v. Johnson, 402 U.S. 690 (1971) (per curiam). See also
Lopez, 525 U.S. at 286, 287 (describing Connor as exempting from preclearance those plans
“crafted wholly by a federal district court in the first instance,” and “wholly court-developed”).
Where, however, the federal court orders a change that had been submitted to it by the covered
jurisdiction, preclearance is necessary. See McDaniel v. Sanchez, 452 U.S. 130 (1981). Further,
because Connor’s separation-of-powers concerns are absent when a voting change is ordered by
a state court, such changes must be precleared. See Branch v. Smith, 538 U.S. 254, 262 (2003)
(noting the lack of dispute on the point).

C. RETROGRESSION
Once it is determined that a particular proposed change is “with respect to voting” and
therefore requires preclearance, it becomes necessary to examine the standards by which the
Attorney General or the D.C. District Court will decide to grant or deny preclearance. The VRA
provides that preclearance should be granted only if 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. But what does it mean to “deny[]” or “abridg[e]” the right to vote?
Specifically, what is the baseline against which to compare the proposed change? Should
preclearance be denied only if the change makes the existing situation worse, i.e., abridges
voting power relative to the status quo? Or should preclearance be denied to any plan that fails to
give racial groups the voting power to which they are entitled, even if the proposed change
modestly improves the existing situation?
In Beer v. United States, 425 U.S. 130 (1976), which appears below, the Court interpreted
“abridg[e]” to mean a reduction in voting power as compared to the status quo. Thus, a proposed
change that had the effect of improving the political power of a racial group could not be said to
 21

have abridged it, even if neither the proposed plan nor the existing one gave the group the
representation to which it was entitled.
Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) [p. XXX], applied Beer to hold
that the “purpose” to discriminate proscribed by § 5 was a retrogressive purpose. Thus, after
Bossier Parish, preclearance was to be denied only if a proposed change actually reduced a racial
minority’s voting power relative to the status quo, or was intended to do so.
Congress responded to overrule the Court’s holding in Bossier Parish, but left the Beer
holding intact. See 42 U.S.C. § 1973c(c). As a result, the statute now provides that preclearance
should be denied whenever a proposed change actually reduces a minority group’s voting power
relative to the status quo, or when it is intended to deprive a minority group of the voting power
to which it is entitled. Thus, the “effect” inquiry uses the existing law as the baseline of
comparison, while the “purpose” inquiry uses a hypothetical nondiscriminatory regime as its
baseline.
BEER v. UNITED STATES
Supreme Court of the United States
425 U.S. 130, 96 S. Ct. 1357, 47 L. Ed. 2d 629 (1976)

MR. JUSTICE STEWART delivered the opinion of the Court [in which MR. CHIEF JUSTICE BURGER,
MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join].
Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject
to § 4 of the Act [including Louisiana and its political subdivisions] from enforcing “any voting
qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting
different from that in force or effect on November 1, 1964,” unless it has obtained a declaratory
judgment from the District Court for the District of Columbia that such 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” or has submitted the proposed change to the Attorney General and the Attorney
General has not objected to it. The constitutionality of this procedure was upheld in South
Carolina v. Katzenbach, 383 U.S. 301 [(1964)] [p. XXX], and it is now well established that § 5
is applicable when a State or political subdivision adopts a legislative reapportionment plan.
Allen v. State Board of Elections, 393 U.S. 544 [(1968)] [p. XXX]; Georgia v. United States,
411 U.S. 526 [(1973)].
The city of New Orleans brought this suit under § 5 seeking a judgment declaring that a
reapportionment of New Orleans’ councilmanic districts did not have the purpose or effect of
denying or abridging the right to vote on account of race or color. The District Court entered a
judgment of dismissal, holding that the new reapportionment plan would have the effect of
abridging the voting rights of New Orleans’ Negro citizens. The city appealed the judgment to
this Court[.] * * *
New Orleans is a city of almost 600,000 people. Some 55% of that population is white and
the remaining 45% is Negro. Some 65% of the registered voters are white, and the remaining
35% are Negro.4 In 1954, New Orleans adopted a mayor-council form of government. Since that
time the municipal charter has provided that the city council is to consist of seven members, one
to be elected from each of five councilmanic districts, and two to be elected by the voters of the
city at large. The 1954 charter also requires an adjustment of the boundaries of the five single-
4
The difference in the two figures is due in part to the fact that proportionately more whites of voting age are
registered to vote than are Negroes and in part to the fact that the age structures of the white and Negro populations
of New Orleans differ significantly—72.3% of the white population is of voting age, but only 57.1% of the Negro
population is of voting age.
22

member councilmanic districts following each decennial census to reflect population shifts
among the districts.
In 1961, the city council redistricted the city based on the 1960 census figures. That
reapportionment plan established four districts that stretched from the edge of Lake Pontchartrain
on the north side of the city to the Mississippi River on the city’s south side. The fifth district
was wedge shaped and encompassed the city’s downtown area. In one of these councilmanic
districts, Negroes constituted a majority of the population, but only about half of the registered
voters. In the other four districts white voters clearly outnumbered Negro voters. No Negro was
elected to the New Orleans City Council during the decade from 1960 to 1970.
After receipt of the 1970 census figures the city council adopted a reapportionment plan
(Plan I) that continued the basic north-to-south pattern of councilmanic districts combined with a
wedge-shaped, downtown district. Under Plan I Negroes constituted a majority of the population
in two districts, but they did not make up a majority of registered voters in any district. The
largest percentage of Negro voters in a single district under Plan I was 45.2%. When the city
submitted Plan I to the Attorney General pursuant to § 5, he objected to it, stating that it appeared
to “dilute black voting strength by combining a number of black voters with a larger number of
white voters in each of the five districts.” * * *
Even before the Attorney General objected to Plan I, the city authorities had commenced
work on a second plan—Plan II. That plan followed the general north-to-south districting pattern
common to the 1961 apportionment and Plan I. It produced Negro population majorities in two
districts and a Negro voter majority (52.6%) in one district. When Plan II was submitted to the
Attorney General, he posed the same objections to it that he had raised to Plan I. In addition, he
noted that “the predominantly black neighborhoods in the city are located generally in an east to
west progression,” and pointed out that the use of north-to-south districts in such a situation
almost inevitably would have the effect of diluting the maximum potential impact of the Negro
vote. Following the rejection by the Attorney General of Plan II, the city brought this declaratory
judgment action in the United States District Court for the District of Columbia.
The District Court concluded that Plan II would have the effect of abridging the right to vote
on account of race or color.7 It calculated that if Negroes could elect city councilmen in
proportion to their share of the city’s registered voters, they would be able to choose 2.42 of the
city’s seven councilmen, and, if in proportion to their share of the city’s population, to choose
3.15 councilmen.8 But under Plan II the District Court concluded that, since New Orleans’
elections had been marked by bloc voting along racial lines, Negroes would probably be able to
elect only one councilman—the candidate from the one councilmanic district in which a majority
of the voters were Negroes. * * *
As a separate and independent ground for rejecting Plan II, the District Court held that the
failure of the plan to alter the city charter provision establishing two at-large seats had the effect
in itself of “abridging the right to vote . . . on account of race or color.” * * *
The appellants urge, and the United States * * * has conceded, that the District Court was

7
The District Court did not address the question whether Plan II was adopted with such a “purpose.”
8
This Court has, of course, rejected the proposition that members of a minority group have a federal right to be
represented in legislative bodies in proportion to their number in the general population. See Whitcomb v. Chavis,
403 U.S. 124, 149 [(1971)] [p. XXX]. It is worth noting, however, that had the District Court applied its
mathematical calculations to the five seats that were properly subject to its scrutiny, see infra, it would have
concluded on the basis of registered voter figures that Negroes in New Orleans had a theoretical potential of electing
1.7 of the five councilmen. A realistic prediction would seem to be that under the actual operation of Plan II at least
one and perhaps two Negro councilmen would in fact be elected.
 23

mistaken in holding that Plan II could be rejected under § 5 solely because it did not eliminate
the two at-large councilmanic seats that had existed since 1954. The appellants and the United
States are correct in their interpretation of the statute in this regard.
The language of § 5 clearly provides that it applies only to proposed changes in voting
procedures. “[D]iscriminatory practices . . . instituted prior to November 1964 . . . are not subject
to the requirement of preclearance [under § 5].” The ordinance that adopted Plan II made no
reference to the at-large councilmanic seats. * * * The at-large seats, having existed without
change since 1954, were not subject to review in this proceeding under § 5.10
The principal argument made by the appellants in this Court is that the District Court erred in
concluding that the makeup of the five geographic councilmanic districts under Plan II would
have the effect of abridging voting rights on account of race or color. In evaluating this claim it
is important to note at the outset that the question is not one of constitutional law, but of statutory
construction. A determination of when a legislative reapportionment has “the effect of denying or
abridging the right to vote on account of race or color,” must depend, therefore, upon the intent
of Congress in enacting the Voting Rights Act and specifically § 5.
The legislative history reveals that the basic purpose of Congress in enacting the Voting
Rights Act was “to rid the country of racial discrimination in voting.” South Carolina v.
Katzenbach, 383 U.S., at 315. Section 5 was intended to play an important role in achieving that
goal:
“Section 5 was a response to a common practice in some jurisdictions of staying one step ahead of the
federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.
That practice had been possible because each new law remained in effect until the Justice Department or
private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory. . . .
Congress therefore decided, as the Supreme Court held it could, ‘to shift the advantage of time and inertia
from the perpetrators of the evil to its victim,’ by ‘freezing election procedures in the covered areas unless
the changes can be shown to be nondiscriminatory.’ ” H.R. Rep. No. 94-196, pp. 57-58.

By prohibiting the enforcement of a voting-procedure change until it has been demonstrated

to the United States Department of Justice or to a three-judge federal court that the change does
not have a discriminatory effect, Congress desired to prevent States from “undo[ing] or
defeat[ing] the rights recently won” by Negroes. H.R. Rep. No. 91-397, p.8. Section 5 was
intended “to insure that [the gains thus far achieved in minority political participation] shall not
be destroyed through new [discriminatory] procedures and techniques.” S. Rep. No. 94-295, p.
19.
When it adopted a 7-year extension of the Voting Rights Act in 1975, Congress explicitly
stated that “the standard [under § 5] can only be fully satisfied by determining on the basis of the
facts found by the Attorney General [or the District Court] to be true whether the ability of
minority groups to participate in the political process and to elect their choices to office is
augmented, diminished, or not affected by the change affecting voting . . . .” In other words the
purpose of § 5 has always been to insure 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.
It is thus apparent that a legislative reapportionment that enhances the position of racial
minorities with respect to their effective exercise of the electoral franchise can hardly have the
10
In reaching this conclusion, we do not decide the question reserved in Georgia v. United States, 411 U.S., [at] 535
n.7, whether a district in a proposed legislative reapportionment plan that is identical to a district in the previously
existing apportionment may be subject to review under § 5. * * *
24

“effect” of diluting or abridging the right to vote on account of race within the meaning of § 5.
We conclude, therefore, that such 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.
The application of this standard to the facts of the present case is straightforward. Under the
apportionment of 1961 none of the five councilmanic districts had a clear Negro majority of
registered voters, and no Negro has been elected to the New Orleans City Council while that
apportionment system has been in effect. Under Plan II, by contrast, Negroes will constitute a
majority of the population in two of the five districts and a clear majority of the registered voters
in one of them. Thus, there is every reason to predict, upon the District Court’s hypothesis of
bloc voting, that at least one and perhaps two Negroes may well be elected to the council under
Plan II. It was therefore error for the District Court to conclude that Plan II “will . . . have the
effect of denying or abridging the right to vote on account of race or color” within the meaning
of § 5 of the Voting Rights Act.14
Accordingly, the judgment of the District Court is vacated, and the case is remanded to that
court for further proceedings consistent with this opinion.
It is so ordered.

MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

MR. JUSTICE WHITE, dissenting.

With MR. JUSTICE MARSHALL, I cannot agree that § 5 of the Voting Rights Act of 1965 reaches
only those changes in election procedures that are more burdensome to the complaining minority
than pre-existing procedures. As I understand § 5, the validity of any procedural change
otherwise within the reach of the section must be determined under the statutory standard
whether the proposed legislation has the purpose or effect of abridging or denying the right to
vote based on race or color.
This statutory standard is to be applied here in light of the District Court’s findings, which
are supported by the evidence and are not now questioned by the Court. The findings were that
the nominating process in New Orleans’ councilmanic elections is subject to majority vote and
“anti-single-shot” rules and that there is a history of bloc racial voting in New Orleans, the
predictable result being that no Negro candidate will win in any district in which his race is in the
minority. In my view, where these facts exist, combined with a segregated residential pattern, § 5
is not satisfied unless, to the extent practicable, the new electoral districts afford the Negro
minority the opportunity to achieve legislative representation roughly proportional to the Negro
population in the community. Here, with a seven-member city council, the black minority
constituting approximately 45% of the population of New Orleans, would be entitled under § 5,
14
It is possible that a legislative reapportionment could be a substantial improvement over its predecessor in terms of
lessening racial discrimination, and yet nonetheless continue so to discriminate on the basis of race or color as to be
unconstitutional. The United States has made no claim that Plan II suffers from any such disability, nor could it
rationally do so.
There is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth
Amendment. The case closest to so holding is Gomillion v. Lightfoot, 364 U.S. 339 [(1960)] [p. XXX][.] * * * But
in at least four cases the Court has considered claims that legislative apportionments violated the Fourteenth
Amendment rights of identifiable racial or ethnic minorities. Fortson v. Dorsey, 379 U.S. 433, 439 [(1965)]; Burns
v. Richardson, 384 U.S. 73, 86-89 [(1966)]; Whitcomb v. Chavis, [supra], [at] 149; White v. Regester, 412 U.S. 755
[(1973)] [p. XXX]. Plan II does not remotely approach a violation of the constitutional standards enunciated in those
cases.
 25

as I construe it, to the opportunity of electing at least three city councilmen more than provided
by the plan at issue here. * * *
Applying § 5 in this way would at times require the drawing of district lines based on race;
but Congress has this power where deliberate discrimination at the polls and the relevant
electoral laws and customs have effectively foreclosed Negroes from enjoying a modicum of fair
representation in the city council or other legislative body. * * *

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. * * *
Under the Court’s reading of § 5, we cannot reach the abridgment question unless we have
first determined that a proposed redistricting plan would “lead to a retrogression in the position
of racial minorities” in comparison to their position under the existing plan. The Court’s
conclusion that § 5 demands this preliminary inquiry is simply wrong; it finds no support in the
language of the statute and disserves the legislative purposes behind § 5. * * *
While the substantive reach of § 5 is somewhat broader than that of the Fifteenth
Amendment in at least one regard—the burden of proof is shifted from discriminatee to
discriminator—§ 5 is undoubtedly tied to the standards of the Constitution. Thus, it is
questionable whether the “purpose and effect” language states anything more than the
constitutional standard, and it is clear that the “denying or abridging” phrase does no more than
directly adopt the language of the Fifteenth Amendment.
In justifying its convoluted construction of § 5, however, the Court never deals with the fact
that, by its plain language, § 5 does no more than adopt, or arguably expand, the constitutional
standard. Since it has never been held, or even suggested, that the constitutional standard
requires an inquiry into whether a redistricting plan is “ameliorative” or “retrogressive,” a
fortiori there is no basis for so reading § 5. While the Court attempts to provide a basis by
relying on the asserted purpose of § 5 to preserve present Negro voting strength6 it is wholly
unsuccessful. What superficial credibility the argument musters is achieved by ignoring not only
the statutory language, but also at least three other purposes behind § 5.
Thus, the legislative history of the Voting Rights Act makes clear, and the Court assiduously
ignores, that § 5 was designed to preclude new districting plans that “perpetuate discrimination,”
to prevent covered jurisdictions from “circumventing the guarantees of the 15th amendment” by
switching to new, and discriminatory, districting plans the moment litigants appear on the verge
of having an existing one declared unconstitutional, and promptly to end discrimination in voting
by pressuring covered jurisdictions to remove all vestiges of discrimination from their
enactments before submitting them for preclearance. None of these purposes is furthered by an
inquiry into whether a proposed districting plan is “ameliorative” or “retrogressive.” 12 Indeed,
6
It may be that this single purpose looms so large to the Court because it thinks it would be counterproductive to bar
enforcement of a proposed plan, even if discriminatory, that is at all less discriminatory than the pre-existing plan,
which would otherwise remain frozen in effect. While this argument has superficial appeal, it is ultimately
unrealistic because it will be a rare jurisdiction that can retain its pre-existing apportionment after the rejection of a
modification by the Attorney General or District Court. Jurisdictions do not undertake redistricting without reason.
In this case, for instance, the New Orleans City Charter requires redistricting every 10 years. If the plan before us
now were disapproved, New Orleans would have to produce a new one or amend its charter. In other cases,
redistricting will have been constitutionally compelled by our one-person, one-vote decisions. The virtual necessity
of prompt redistricting argues strongly in favor of rejecting “ameliorative” but still discriminatory redistricting
plans. The jurisdictions will eventually have to return with a nondiscriminatory plan.
12
Today the Court finds it simple to conclude that Plan II is “ameliorative,” but it will not always be so easy to
determine whether a new plan increases or decreases Negro voting power relative to the prior plan. To the contrary,
I believe the Court’s test will prove unduly difficult of application and excessively demanding of judicial energies.
26

the statement of these purposes is alone sufficient to demonstrate the error of the Court’s
construction. * * *

Notes and Questions

1. What is the basis for the Court’s holding? Are you convinced?
2. Problem. West Carolina, a covered jurisdiction, submits to the Attorney General a
proposed change to its election laws that would keep the polls open an additional hour from 6:00
p.m. until 7:00 p.m. The purpose is to reduce lines at the polls and to make voting more
convenient. Because a greater proportion of whites than blacks have jobs ending between 5:00
and 7:00, however, the effect of the change would be to dilute black voting strength by
permitting a higher percentage of whites to vote than would be the case if polls closed at 6:00.
Should the Attorney General grant preclearance?
3. Problem. Georgia attempts to ensure against voter fraud by checking the accuracy of its
lists of registered voters. The reports that alert the state to possible unregistered voters, however,
generate thousands of false positives, requiring those persons to present proof of their eligibility
to vote. A disproportionate number of those false positives affect minorities. The Supreme Court
upheld the facial constitutionality of voter-ID requirements in Crawford v. Marion County
Election Board, 553 U.S. __ (2008), despite allegations that such requirements would
disproportionately affect minorities. Should preclearance be granted?
4. The Court in Beer held that because the districting plan was not retrogressive, it did not
have the “effect of denying or abridging the right to vote.” A nonretrogressive effect is not
enough to satisfy § 5, though. The statute also demands that the change not have the “purpose . . .
of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c. Should
this “purpose” requirement be interpreted to require a retrogressive purpose? The Court in the
following case thought so, but Congress quickly overturned that interpretation.

RENO v. BOSSIER PARISH SCHOOL BOARD

Supreme Court of the United States
528 U.S. 320, 120 S. Ct. 866, 145 L. Ed. 2d 845 (2000)

JUSTICE SCALIA delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE
O’CONNOR, JUSTICE KENNEDY, and JUSTICE THOMAS join].
These cases present the question whether § 5 of the Voting Rights Act of 1965, as amended,
42 U.S.C. § 1973c, prohibits preclearance of a redistricting plan enacted with a discriminatory

For instance, the Court today finds that an increase in the size of the Negro majority in one district, with a
concomitant increased likelihood of electing a delegate, conclusively shows that Plan II is ameliorative. Will that
always be so? Is it not as common for minorities to be gerrymandered into the same district as into separate ones? Is
an increase in the size of an existing majority ameliorative or retrogressive? When the size of the majority increases
in one district, Negro voting strength necessarily declines elsewhere. Is that decline retrogressive? [W]hen would an
increase [in minority voting strength in a district] become retrogressive? As soon as the majority becomes “safe”?
When the majority is achieved by dividing pre-existing concentrations of Negro voters?
* * * The Court’s test will prove even more difficult of application outside the redistricting context. Some changes
just do not lend themselves to comparison in positive or negative terms; others will always seem negative or positive
no matter how good or bad the result. For instance, when a city goes from an appointed town manager to an elected
council form of government, can the change ever be termed retrogressive, even if the new council is elected at large
and Negroes are a minority? Or where a jurisdiction in which Negroes are a substantial minority switches from at-
large to ward voting, can that change ever constitute a negative change, no matter how badly the wards are
gerrymandered? * * * [Relocated. –Eds.]
 27

but nonretrogressive purpose.

* * * 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. 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.
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 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 appellant-intervenor Price—
demonstrated that “black residents are sufficiently numerous and geographically compact so as
to constitute a majority in two single-member districts.” 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.”
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) [p. XXX], we held that a plan has a prohibited “effect” only if it is retrogressive.) Instead,
appellants * * * contended that, 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. * * *
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.
[I]n order to obtain preclearance under § 5, a covered jurisdiction * * * 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
28

“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.
In Beer, 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.” [425 U.S.], 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.
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 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 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
 29

matter”; would “effectively delet[e] the ‘purpose’ prong”; and would give the purpose prong “a
trivial reach, limited to the case of the incompetent retrogressor.” * * *
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 [United
States] 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.
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, 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. The term “abridge,” however—whose core meaning is “shorten”—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
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. Indeed, contrary to JUSTICE SOUTER’s assertion, we have never even
“suggested” as much. Gomillion v. Lightfoot, 364 U.S. 339 (1960) [p. XXX], 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. 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 our voting-rights opinions until nine years later. See Allen v. State Bd. of Elections, 393 U.S. 544, 569
(1969) [p. XXX]. As for the other case relied upon by JUSTICE SOUTER, the plurality opinion in Mobile v. Bolden, 446
U.S. 55 (1980) [p. XXX], 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 Fifteenth
30

* * * 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 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.” Such a reading would also
exacerbate the “substantial” federalism costs that the preclearance procedure already exacts,
perhaps to the extent of raising concerns about § 5’s constitutionality. Most importantly,
however, in light of our holding in Beer, appellants’ reading finds no support in the language of
§ 5. * * *
* * *
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. * * *
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 denied or abridged . . . on account of race [or] color . . . .” Since the Act is an
exercise of congressional power under § 2 of that Amendment, the choice to follow the
Amendment’s terminology is most naturally read as carrying the meaning of the constitutional
terms into the statute. 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
Amendment does not entail the right to have Negro candidates elected . . . . Having found that Negroes in Mobile
‘register and vote without hindrance,’ the [lower courts] were in error in believing that the appellants invaded the
protection of that Amendment in the present case.” Id., at 65.
10
The majority * * * 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. This assumes that purpose is
 31

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. 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. * * * Although our cases have dealt
with vote dilution only under the Fourteenth Amendment, 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, I know of no reason to doubt that “abridg[e]” in the Fifteenth Amendment
includes dilutive discrimination.11
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
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. 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[.] * * * 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.
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. In other words, on the majority’s reading, the baseline in a § 5 challenge is

easier to prove than effect. While that may be true in [other areas of law], it is not true in voting rights cases * * *.
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 paltry coverage given that it is discriminatory purpose, not discriminatory
effect, that is at the heart of the Fifteenth Amendment.
11
We have suggested, but have never explicitly decided, that the Fifteenth Amendment applies to dilution claims.
See Mobile v. Bolden, 446 U.S., [at] 62-63 (plurality opinion); Gomillion v. Lightfoot, 364 U.S., [at] 346. The
majority claims that Gomillion was not about dilution because it involved the exclusion of black voters from
municipal elections. 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. * * *
32

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. * * *
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 (which Congress is always free to supersede with new
legislation), 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. 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. * * *
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) [p. XXX] (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. [900], 925-926 [(1995)] [p. XXX]. Thus we
have held that an enquiry into dilutive effect must rest on some 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. 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.
 33

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. 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. 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.
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, it would also
enjoy the virtue of consistency with prior decisions apart from Beer. In Richmond v. United
States, 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.”
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. * * * It follows from Richmond that a plan lacking any underlying
purpose to cause disqualifying retrogression may be barred by a discriminatory intent. * * *
The majority * * * observes that reading the purpose prong of § 5 as covering more than
retrogression * * * would “exacerbate the ‘substantial’ federalism costs that the preclearance
procedure already exacts.” But my 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. * * * I respectfully
dissent.

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting. * * *

It is not impossible that [the statutory] 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
present-tense, intentional effort to “den[y] or abridg[e] the right to vote on account of race.”
Ergo, if a municipality intends to deny or abridge voting rights because of race, it may not obtain
preclearance. * * *

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—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, 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) [p. XXX]. This “stratagem” created a moving target with a consequent risk of judicial
34

runaround. 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. * * *
[The imposition of discriminatorily motivated voter-registration requirements] 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. * * *

Notes and Questions

1. Is the dissenters’ position faithful to principles of stare decisis? Should they have either
urged Beer’s overruling or acquiesced in a consistent interpretation of “abridging”? If you agree
with the dissenters that Beer was wrongly decided, would you call for it to be overruled?
2. Does Bossier Parish provide a better rationale for Beer than Beer itself did?
3. If Justice Scalia were on the Court when Beer was decided, how would he have voted?
4. In what way would the federal government’s reading of § 5 imperil its constitutionality?
5. Shortly after Bossier Parish, Congress amended § 5 to overturn its holding. Title 42
U.S.C. § 1973c(c) now provides that “purpose” in the preclearance provisions “shall include any
discriminatory purpose.” Does the new provision render the preclearance requirement
unconstitutional?
6. Retrogression is not always as simple as comparing the numbers of majority-minority
districts in the challenged plan and the benchmark plan. The next case looks at Georgia’s
creation of “influence” districts and examines how they affect the retrogression analysis.

GEORGIA v. ASHCROFT
Supreme Court of the United States
539 U.S. 461, 123 S. Ct. 2498, 156 L. Ed. 2d 428 (2003)

JUSTICE O’CONNOR delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST,
JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join].
In this case, we decide whether Georgia’s [2001] State Senate redistricting plan should have
been precleared under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. * * *
All parties here concede that the 1997 plan is the benchmark plan for this litigation because it
was in effect at the time of the 2001 redistricting effort. The 1997 plan drew 56 districts, 11 of
them with a total black population of over 50%, and 10 of them with a black voting age
population of over 50%. The 2000 census revealed that these numbers had increased so that 13
districts had a black population of at least 50%, with the black voting age population exceeding
50% in 12 of those districts.
After the 2000 census, the Georgia General Assembly began the process of redistricting the
Senate once again. No party contests that a substantial majority of black voters in Georgia vote
Democratic, or that all elected black representatives in the General Assembly are Democrats.
The goal of the Democratic leadership—black and white—was to maintain the number of
majority-minority districts and also increase the number of Democratic Senate seats. * * * Part of
the Democrats’ strategy was not only to maintain the number of majority-minority districts, but
to increase the number of so-called “influence” districts, where black voters would be able to
exert a significant—if not decisive—force in the election process. * * *
The plan as designed by the Senate “unpacked” the most heavily concentrated majority-
minority districts in the benchmark plan, and created a number of new influence districts. The
 35

new plan drew 13 districts with a majority-black voting age population, 13 additional districts
with a black voting age population of between 30% and 50%, and 4 other districts with a black
voting age population of between 25% and 30%. According to the 2000 census, as compared to
the benchmark plan, the new plan reduced by five the number of districts with a black voting age
population in excess of 60%. Yet it increased the number of majority-black voting age
population districts by one, and it increased the number of districts with a black voting age
population of between 25% and 50% by four. As compared to the benchmark plan enacted in
1997, the difference is even larger. Under the old census figures, Georgia had 10 Senate districts
with a majority-black voting age population, and 8 Senate districts with a black voting age
population of between 30% and 50%. The new plan thus increased the number of districts with a
majority black voting age population by three, and increased the number of districts with a black
voting age population of between 30% and 50% by another five.
The Senate adopted its new districting plan on August 10, 2001, by a vote of 29 to 26. Ten of
the eleven black Senators voted for the plan. The Georgia House of Representatives passed the
Senate plan by a vote of 101 to 71. Thirty-three of the thirty-four black Representatives voted for
the plan. No Republican in either the House or the Senate voted for the plan, making the votes of
the black legislators necessary for passage. The Governor signed the Senate plan into law on
August 24, 2001, and Georgia subsequently sought to obtain preclearance.
Pursuant to § 5 of the Voting Rights Act, a covered jurisdiction like Georgia has the option
of either seeking administrative preclearance through the Attorney General of the United States
or seeking judicial preclearance by instituting an action in the United States District Court for the
District of Columbia for a declaratory judgment that the voting change comports with § 5. 42
U.S.C. § 1973c. Georgia chose the latter method, filing suit seeking a declaratory judgment that
the State Senate plan does not violate § 5. * * * A three-judge panel of the District Court held
that Georgia’s State Senate apportionment violated § 5, and was therefore not entitled to
preclearance. * * *
After the District Court refused to preclear the plan, Georgia enacted another plan, largely
similar to the one at issue here, except that it added black voters to Districts 2, 12, and 26. The
District Court precleared this plan. No party has contested the propriety of the District Court’s
preclearance of the Senate plan as amended. Georgia asserts that it will use the plan as originally
enacted if it receives preclearance.
We noted probable jurisdiction to consider whether the District Court should have precleared
the plan as originally enacted by Georgia in 2001, and now vacate the judgment below. * * *
Georgia argues that * * * its State Senate plan should be precleared because it does not lead
to “a retrogression in the position of racial minorities with respect to their effective exercise of
the electoral franchise.” Beer v. United States, [425 U.S. 130,] 141 [(1976)] [p. XXX].
While we have never determined the meaning of “effective exercise of the electoral
franchise,” this case requires us to do so in some detail. First, the United States and the District
Court correctly acknowledge that in examining whether the new plan is retrogressive, the inquiry
must encompass the entire statewide plan as a whole. Thus, while the diminution of a minority
group’s effective exercise of the electoral franchise in one or two districts may be sufficient to
show a violation of § 5, it is only sufficient if the covered jurisdiction cannot show that the gains
in the plan as a whole offset the loss in a particular district.
Second, any assessment of the retrogression of a minority group’s effective exercise of the
electoral franchise depends on an examination of all the relevant circumstances, such as the
ability of minority voters to elect their candidate of choice, the extent of the minority group’s
36

opportunity to participate in the political process, and the feasibility of creating a

nonretrogressive plan. See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1011-1012, 1020-1021
(1994) [p. XXX]; Thornburg v. Gingles, [478 U.S. 30,] 97-100 [(1986)] [p. XXX] (O’CONNOR, J.,
concurring in judgment). “No single statistic provides courts with a shortcut to determine
whether” a voting change retrogresses from the benchmark. De Grandy, supra, at 1020-1021.
In assessing the totality of the circumstances, a court should not focus solely on the
comparative ability of a minority group to elect a candidate of its choice. While this factor is an
important one in the § 5 retrogression inquiry, it cannot be dispositive or exclusive. The standard
in § 5 is simple—whether the new plan “would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral franchise.” Beer, 425 U.S., at
141.
The ability of minority voters to elect a candidate of their choice is important but often
complex in practice to determine. In order to maximize the electoral success of a minority group,
a State may choose to create a certain number of “safe” districts, in which it is highly likely that
minority voters will be able to elect the candidate of their choice. Alternatively, a State may
choose to create a greater number of districts in which it is likely—although perhaps not quite as
likely as under the benchmark plan—that minority voters will be able to elect candidates of their
choice.
Section 5 does not dictate that a State must pick one of these methods of redistricting over
another. Either option “will present the minority group with its own array of electoral risks and
benefits,” and presents “hard choices about what would truly ‘maximize’ minority electoral
success.” On one hand, a smaller number of safe majority-minority districts may virtually
guarantee the election of a minority group’s preferred candidate in those districts. Yet even if this
concentration of minority voters in a few districts does not constitute the unlawful packing of
minority voters, such a plan risks isolating minority voters from the rest of the state, and risks
narrowing political influence to only a fraction of political districts. And while such districts may
result in more “descriptive representation” because the representatives of choice are more likely
to mirror the race of the majority of voters in that district, the representation may be limited to
fewer areas.
On the other hand, spreading out minority voters over a greater number of districts creates
more districts in which minority voters may have the opportunity to elect a candidate of their
choice. Such a strategy has the potential to increase “substantive representation” in more
districts, by creating coalitions of voters who together will help to achieve the electoral
aspirations of the minority group. It also, however, creates the risk that the minority group’s
preferred candidate may lose. * * * Section 5 gives States the flexibility to choose one theory of
effective representation over the other.
In addition to the comparative ability of a minority group to elect a candidate of its choice,
the other highly relevant factor in a retrogression inquiry is the extent to which a new plan
changes the minority group’s opportunity to participate in the political process. “The power to
influence the political process is not limited to winning elections.” Thornburg v. Gingles, supra,
at 99 (O’CONNOR, J., concurring in judgment) (quoting Davis v. Bandemer, 478 U.S. 109, 132
(1986) [p. XXX]); see also White v. Regester, 412 U.S. 755, 766-767 (1973) [p. XXX];
Whitcomb v. Chavis, 403 U.S. 124, 149-160 (1971) [p. XXX]; Johnson v. De Grandy, 512 U.S.,
at 1011-1012.
Thus, a court must examine whether a new plan adds or subtracts “influence districts”—
where minority voters may not be able to elect a candidate of choice but can play a substantial, if
 37

not decisive, role in the electoral process. In assessing the comparative weight of these influence
districts, it is important to consider “the likelihood that candidates elected without decisive
minority support would be willing to take the minority’s interests into account.” Id., at 100
(O’CONNOR, J., concurring in judgment). * * *
Section 5 leaves room for States to use * * * influence and coalitional districts. Indeed, the
State’s choice ultimately may rest on a political choice of whether substantive or descriptive
representation is preferable. The State may choose, consistent with § 5, that it is better to risk
having fewer minority representatives in order to achieve greater overall representation of a
minority group by increasing the number of representatives sympathetic to the interests of
minority voters. See Thornburg v. Gingles, 478 U.S., at 87-89, 99 (O’CONNOR, J., concurring in
judgment).
In addition to influence districts, one other method of assessing the minority group’s
opportunity to participate in the political process is to examine the comparative position of
legislative leadership, influence, and power for representatives of the benchmark majority-
minority districts. * * * Indeed, in a representative democracy, the very purpose of voting is to
delegate to chosen representatives the power to make and pass laws. The ability to exert more
control over that process is at the core of exercising political power. A lawmaker with more
legislative influence has more potential to set the agenda, to participate in closed-door meetings,
to negotiate from a stronger position, and to shake hands on a deal. Maintaining or increasing
legislative positions of power for minority voters’ representatives of choice, while not dispositive
by itself, can show the lack of retrogressive effect under § 5.
And it is also significant, though not dispositive, whether the representatives elected from the
very districts created and protected by the Voting Rights Act support the new districting plan.
* * * The representatives of districts created to ensure continued minority participation in the
political process have some knowledge about how “voters will probably act” and whether the
proposed change will decrease minority voters’ effective exercise of the electoral franchise. * * *
Given the evidence submitted in this case, we find that Georgia likely met its burden of
showing nonretrogression. * * * Section 5 gives States the flexibility to implement the type of
plan that Georgia has submitted for preclearance—a plan that increases the number of districts
with a majority-black voting age population, even if it means that in some of those districts,
minority voters will face a somewhat reduced opportunity to elect a candidate of their choice.
***
The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the
electoral franchise and to foster our transformation to a society that is no longer fixated on race.
* * * While courts and the Department of Justice should be vigilant in ensuring that States
neither reduce the effective exercise of the electoral franchise nor discriminate against minority
voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a
society where race no longer matters: a society where integration and color-blindness are not just
qualities to be proud of, but are simple facts of life.
The District Court is in a better position to reweigh all the facts in the record in the first
instance in light of our explication of retrogression. The judgment of the District Court for the
District of Columbia, accordingly, is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
38

JUSTICE KENNEDY, concurring.

As is evident from the Court’s accurate description of the facts in this case, race was a
predominant factor in drawing the lines of Georgia’s State Senate redistricting map. If the
Court’s statement of facts had been written as the preface to consideration of a challenge brought
under the Equal Protection Clause or under § 2 of the Voting Rights Act of 1965, a reader of the
opinion would have had sound reason to conclude that the challenge would succeed. Race cannot
be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U.S. 900
(1995) [p. XXX]. Yet considerations of race that would doom a redistricting plan under the
Fourteenth Amendment or § 2 seem to be what save it under § 5.
I agree that our decisions controlling the § 5 analysis require the Court’s ruling here. The
discord and inconsistency between §§ 2 and 5 should be noted, however; and in a case where that
issue is raised, it should be confronted. There is a fundamental flaw, I should think, in any
scheme in which the Department of Justice is permitted or directed to encourage or ratify a
course of unconstitutional conduct in order to find compliance with a statutory directive. This
serious issue has not been raised here, and, as already observed, the Court is accurate both in its
summary of the facts and its application of the controlling precedents. With these observations, I
join the opinion of the Court.

JUSTICE THOMAS, concurring.

I continue to adhere to the views expressed in my opinion in Holder v. Hall, 512 U.S. 874,
891 (1994) [p. XXX] (opinion concurring in judgment). I join the Court’s opinion because it is
fully consistent with our § 5 precedents.

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join,
dissenting.
I agree with the Court that reducing the number of majority-minority districts within a State
would not necessarily amount to retrogression barring preclearance under § 5 of the Voting
Rights Act of 1965. The prudential objective of § 5 is hardly betrayed if a State can show that a
new districting plan shifts from supermajority districts, in which minorities can elect their
candidates of choice by their own voting power, to coalition districts, in which minorities are in
fact shown to have a similar opportunity when joined by predictably supportive nonminority
voters.
Before a State shifts from majority-minority to coalition districts, however, the State bears
the burden of proving that nonminority voters will reliably vote along with the minority. It must
show not merely that minority voters in new districts may have some influence, but that minority
voters will have effective influence translatable into probable election results comparable to what
they enjoyed under the existing district scheme. And to demonstrate this, a State must do more
than produce reports of minority voting age percentages; it must show that the probable voting
behavior of nonminority voters will make coalitions with minorities a real prospect. If the State’s
evidence fails to convince a factfinder that high racial polarization in voting is unlikely, or that
high white crossover voting is likely, or that other political and demographic facts point to
probable minority effectiveness, a reduction in supermajority districts must be treated as
potentially and fatally retrogressive, the burden of persuasion always being on the State. * * *
The Court goes beyond recognizing the possibility of coalition districts as nonretrogressive
alternatives to those with majorities of minority voters when it redefines effective voting power
in § 5 analysis without the anchoring reference to electing a candidate of choice. It does this by
 39

alternatively suggesting that a potentially retrogressive redistricting plan could satisfy § 5 if a

sufficient number of so-called “influence districts,” in addition to “coalition districts” were
created, or if the new plan provided minority groups with an opportunity to elect a particularly
powerful candidate. On either alternative, the § 5 requirement that voting changes be
nonretrogressive is substantially diminished and left practically unadministrable. * * *
The history of § 5 demonstrates that it addresses changes in state law intended to perpetuate
the exclusion of minority voters from the exercise of political power. When this Court held that a
State must show that any change in voting procedure is free of retrogression it meant that
changes must not leave minority voters with less chance to be effective in electing preferred
candidates than they were before the change. “The purpose of § 5 has always been to insure 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.” Beer v.
United States, 425 U.S., [at] 141. In addressing the burden to show no retrogression, therefore,
“influence” must mean an opportunity to exercise power effectively.
The Court, however, says that influence may be adequate to avoid retrogression from
majority-minority districts when it consists not of decisive minority voting power but of
sentiment on the part of politicians: influence may be sufficient when it reflects a willingness on
the part of politicians to consider the interests of minority voters, even when they do not need the
minority votes to be elected. The Court holds, in other words, that there would be no
retrogression when the power of a voting majority of minority voters is eliminated, so long as
elected politicians can be expected to give some consideration to minority interests.
The power to elect a candidate of choice has been forgotten; voting power has been
forgotten. It is very hard to see anything left of the standard of nonretrogression * * *.
Indeed, to see the trouble ahead, one need only ask how on the Court’s new understanding,
state legislators or federal preclearance reviewers under § 5 are supposed to identify or measure
the degree of influence necessary to avoid the retrogression the Court nominally retains as the
§ 5 touchstone. Is the test purely ad hominem, looking merely to the apparent sentiments of
incumbents who might run in the new districts? Would it be enough for a State to show that an
incumbent had previously promised to consider minority interests before voting on legislative
measures? Whatever one looks to, however, how does one put a value on influence that falls
short of decisive influence through coalition? Nondecisive influence is worth less than majority-
minority control, but how much less? Would two influence districts offset the loss of one
majority-minority district? Would it take three? Or four? The Court gives no guidance for
measuring influence that falls short of the voting strength of a coalition member, let alone a
majority of minority voters. Nor do I see how the Court could possibly give any such guidance.
The Court’s “influence” is simply not functional in the political and judicial worlds.
Identical problems of comparability and administrability count at least as much against the
Court’s further gloss on nonretrogression, in its novel holding that a State may trade off minority
voters’ ability to elect a candidate of their choice against their ability to exert some undefined
degree of influence over a candidate likely to occupy a position of official legislative power. The
Court implies that one majority-minority district in which minority voters could elect a
legislative leader could replace a larger number of majority-minority districts with ordinary
candidates, without retrogression of overall minority voting strength. Under this approach to § 5,
a State may value minority votes in a district in which a potential committee chairman might be
elected differently from minority votes in a district with ordinary candidates.
40

It is impossible to believe that Congress could ever have imagined § 5 preclearance actually
turning on any such distinctions. In any event, if the Court is going to allow a State to weigh
minority votes by the ambitiousness of candidates the votes might be cast for, it is hard to see
any stopping point. I suppose the Court would not go so far as to give extra points to an
incumbent with the charisma to attract a legislative following, but would it value all committee
chairmen equally? (The committee chairmen certainly would not.) And what about a legislator
with a network of influence that has made him a proven dealmaker? Thus, again, the problem of
measurement: is a shift from 10 majority-minority districts to 8 offset by a good chance that one
of the 8 may elect a new Speaker of the House?
I do not fault the Court for having no answers to these questions, for there are no answers of
any use under § 5. The fault is more fundamental, and the very fact that the Court’s interpretation
of nonretrogression under § 5 invites unanswerable questions points to the error of a § 5
preclearance regime that defies reviewable administration. We are left with little hope of
determining practically whether a districting shift to one party’s overall political advantage can
be expected to offset a loss of majority-minority voting power in particular districts; there will
simply be greater opportunity to reduce minority voting strength in the guise of obtaining party
advantage.
One is left to ask who will suffer most from the Court’s new and unquantifiable standard. If it
should turn out that an actual, serious burden of persuasion remains on the States, States that rely
on the new theory of influence should be guaranteed losers: nonretrogression cannot be
demonstrated by districts with minority influence too amorphous for objective comparison. But
that outcome is unlikely, and if in subsequent cases the Court allows the State’s burden to be
satisfied on the pretense that unquantifiable influence can be equated with majority-minority
power, § 5 will simply drop out as a safeguard against the “unremitting and ingenious defiance
of the Constitution” that required the procedure of preclearance in the first place.

Notes and Questions

1. In applying Georgia v. Ashcroft, how is one to know when a decrease in majority-
minority districts has been offset by other increases in the political power of a minority group?
2. Did the 2001 Plan improve black voting strength over that experienced under the 1997
Plan? Is that a different question from asking whether the 2001 Plan improved Democratic
voting strength?
3. Should this case have come out differently if the black legislative delegation were more
evenly split on the wisdom of the 2001 Plan?
4. In protesting the Court’s entry into the “political thicket,” Justices Frankfurter and Harlan
argued that there are no judicially manageable standards for the allocation of political power. In
particular, Justice Harlan’s dissent in Reynolds v. Sims, 377 U.S. 533 (1964) [p. XXX], which we
encountered in Chapter 3, noted that
cases of this type are not amenable to the development of judicial standards. No set of standards can guide
a court which has to decide how many legislative districts a State shall have, or what the shape of the
districts shall be, or where to draw a particular district line. No judicially manageable standard can
determine whether a State should have single member districts or multi-member districts or some
combination of both.

Id. at 621 (Harlan, J., dissenting). And in Baker v. Carr, 369 U.S. 186 (1962) [p. XXX], which
appears in Chapter 2, Justice Frankfurter argued that the Equal Protection Clause provided no
 41

judicially manageable standards against which to evaluate the constitutionality of apportionment

decisions:

Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote, and their
votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state
councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in
short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of
“debasement” or “dilution” is circular talk. One cannot speak of “debasement” or “dilution” of the value of
a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually
asked of the Court in this case is to choose among competing bases of representation—ultimately, really,
among competing theories of political philosophy—in order to establish an appropriate frame of
government for the State of Tennessee, and thereby for all the States of the Union.

Id. at 299-300 (Frankfurter, J., dissenting). Does the Court’s difficulty in formulating a test for
retrogression under § 5 prove that Justices Frankfurter and Harlan were correct?

D. THE CONSTITUTIONALITY OF SECTION 5 REVISITED

We saw in Chapter 1 that the Supreme Court upheld § 5 against a constitutional challenge
shortly after the adoption of the Voting Rights Act. South Carolina v. Katzenbach, 383 U.S. 301
(1966) [p. XXX]. The question of § 5’s constitutionality would return to the Court more than
forty years later, after Congress in 2006 reauthorized the VRA for another twenty-five years. In
the following case, the Court was presented with the question whether preclearance continued to
be an “appropriate” remedy for violations of the Fifteenth Amendment, despite changes in
American society and in attitudes toward racial discrimination since passage of the VRA.

NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT

NUMBER ONE v. HOLDER
Supreme Court of the United States
557 U.S. __, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009)

CHIEF JUSTICE ROBERTS delivered the opinion of the Court [in which JUSTICE STEVENS, JUSTICE
SCALIA, JUSTICE KENNEDY, JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join].
The plaintiff in this case is a small utility district raising a big question—the constitutionality
of § 5 of the Voting Rights Act. * * * The district filed suit seeking relief from [§ 5’s]
preclearance obligations under the “bailout” provision of the Voting Rights Act. That provision
allows the release of a “political subdivision” from the preclearance requirements if certain
rigorous conditions are met. The court below denied relief, concluding that bailout was
unavailable to a political subdivision like the utility district that did not register its own voters.
The district appealed, arguing that the Act imposes no such limitation on bailout, and that if it
does, the preclearance requirements are unconstitutional. * * * We agree that the district is
eligible under the Act to seek bailout. We therefore reverse, and do not reach the
constitutionality of § 5. * * *
[With the exception of § 2, which applies nationwide and is not at issue here,] the Act
constitutes a “scheme of stringent remedies aimed at areas where voting discrimination has been
most flagrant.” [South Carolina v.] Katzenbach, [383 U.S. 301], 315 [(1966)] [p. XXX]. Rather
than continuing to depend on case-by-case litigation, the Act directly pre-empted the most
powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar
42

voting qualifications were abolished by § 4 of the Act. * * * The Act also empowered federal
examiners to override state determinations about who was eligible to vote.
These two remedies were bolstered by § 5, which suspended all changes in state election
procedure until they were submitted to and approved by a three-judge Federal District Court in
Washington, D.C., or the Attorney General. * * *
To confine these remedies to areas of flagrant disenfranchisement, the Act applied them only
to States that had used a forbidden test or device in November 1964, and had less than 50% voter
registration or turnout in the 1964 Presidential election. § 4(b). Congress recognized that the
coverage formula it had adopted “might bring within its sweep governmental units not guilty of
any unlawful discriminatory voting practices.” Briscoe v. Bell, 432 U.S. 404, 411 (1977). It
therefore “afforded such jurisdictions immediately available protection in the form of . . . [a]
‘bailout’ suit.” Ibid.
To bail out under the current provision, a jurisdiction must seek a declaratory judgment from
a three-judge District Court in Washington, D.C. 42 U.S.C. §§ 1973b(a)(1), 1973c(a). It must
show that for the previous 10 years it has not used any forbidden voting test, has not been subject
to any valid objection under § 5, and has not been found liable for other voting rights violations;
it must also show that it has “engaged in constructive efforts to eliminate intimidation and
harassment” of voters, and similar measures. §§ 1973b(a)(1)(A)-(F). * * * There are other
restrictions: To bail out, a covered jurisdiction must show that every jurisdiction in its territory
has complied with all of these requirements. § 1973b(a)(3). The District Court also retains
continuing jurisdiction over a successful bailout suit for 10 years, and may reinstate coverage if
any violation is found. § 1973b(a)(5).
As enacted, §§ 4 and 5 of the Voting Rights Act were temporary provisions. They were
expected to be in effect for only five years. § 4(a). We upheld the temporary Voting Rights Act
of 1965 as an appropriate exercise of congressional power in Katzenbach, explaining that “[t]he
constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the
historical experience which it reflects.” 383 U.S., at 308. We concluded that the problems
Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify
legislative measures not otherwise appropriate.” Id., at 334-335.
Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25
years). The coverage formula remained the same, based on the use of voting-eligibility tests and
the rate of registration and turnout among all voters, but the pertinent dates for assessing these
criteria moved from 1964 to include 1968 and eventually 1972. 42 U.S.C. § 1973b(b). We
upheld each of these reauthorizations against constitutional challenges, finding that
circumstances continued to justify the provisions. Georgia v. United States, 411 U.S. 526 (1973);
City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266
(1999). Most recently, in 2006, Congress extended § 5 for yet another 25 years. 120 Stat. 577.
The 2006 Act retained 1972 as the last baseline year for triggering coverage under § 5. It is that
latest extension that is now before us.
Northwest Austin Municipal Utility District Number One was created in 1987 to deliver city
services to residents of a portion of Travis County, Texas. It is governed by a board of five
members, elected to staggered terms of four years. The district does not register voters but is
responsible for its own elections; for administrative reasons, those elections are run by Travis
County. Because the district is located in Texas, it is subject to the obligations of § 5, although
there is no evidence that it has ever discriminated on the basis of race.
 43

The district filed suit in the District Court for the District of Columbia, seeking relief under
the statute’s bailout provisions and arguing in the alternative that, if interpreted to render the
district ineligible for bailout, § 5 was unconstitutional. The three-judge District Court rejected
both claims. * * * We noted probable jurisdiction, and now reverse.
The historic accomplishments of the Voting Rights Act are undeniable. When it was first
passed, unconstitutional discrimination was rampant and the “registration of voting-age whites
ran roughly 50 percentage points or more ahead” of black registration in many covered States.
Katzenbach, supra, at 313. Today, the registration gap between white and black voters is in
single digits in the covered States; in some of those States, blacks now register and vote at higher
rates than whites. Similar dramatic improvements have occurred for other racial minorities. * * *
At the same time, § 5, “which authorizes federal intrusion into sensitive areas of state and
local policymaking, imposes substantial ‘federalism costs.’ ” Lopez, supra, at 282 (quoting
Miller v. Johnson, 515 U.S. 900, 926 (1995) [p. XXX]). * * *
Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all
changes to state election law—however innocuous—until they have been precleared by federal
authorities in Washington, D.C. The preclearance requirement applies * * * to every political
subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm’rs,
435 U.S. 110, 117-118 (1978).
Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach
and City of Rome have unquestionably improved. Things have changed in the South. Voter
turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal
decrees are rare. And minority candidates hold office at unprecedented levels.
These improvements are no doubt due in significant part to the Voting Rights Act itself, and
stand as a monument to its success. Past success alone, however, is not adequate justification to
retain the preclearance requirements. It may be that these improvements are insufficient and that
conditions continue to warrant preclearance under the Act. But the Act imposes current burdens
and must be justified by current needs.
The Act also differentiates between the States, despite our historic tradition that all the States
enjoy “equal sovereignty.” Distinctions can be justified in some cases. “The doctrine of the
equality of States . . . does not bar . . . remedies for local evils which have subsequently
appeared.” Katzenbach, supra, at 328-329 (emphasis added). But a departure from the
fundamental principle of equal sovereignty requires a showing that a statute’s disparate
geographic coverage is sufficiently related to the problem that it targets.
These federalism concerns are underscored by the argument that the preclearance
requirements in one State would be unconstitutional in another. See Georgia v. Ashcroft, 539
U.S. 461, 491-492 (2003) [p. XXX] (KENNEDY, J., concurring) (“Race cannot be the predominant
factor in redistricting under our decision in Miller v. Johnson. Yet considerations of race that
would doom a redistricting plan under the Fourteenth Amendment or § 2 seem to be what save it
under § 5”). Additional constitutional concerns are raised in saying that this tension between §§ 2
and 5 must persist in covered jurisdictions and not elsewhere.
The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions
singled out for preclearance. The statute’s coverage formula is based on data that is now more
than 35 years old, and there is considerable evidence that it fails to account for current political
conditions. For example, the racial gap in voter registration and turnout is lower in the States
originally covered by § 5 than it is nationwide. * * *
44

The parties do not agree on the standard to apply in deciding whether, in light of the
foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in
extending the preclearance requirements. The district argues that “[t]here must be a congruence
and proportionality between the injury to be prevented or remedied and the means adopted to
that end,” City of Boerne v. Flores, 521 U.S. 507, 520 (1997); the Federal Government asserts
that it is enough that the legislation be a “rational means to effectuate the constitutional
prohibition,” Katzenbach, supra, at 324. That question has been extensively briefed in this case,
but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise
serious constitutional questions under either test.
In assessing those questions, we are keenly mindful of our institutional role. * * * The
Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance
what legislation is needed to enforce it. Congress amassed a sizable record in support of its
decision to extend the preclearance requirements, a record the District Court determined
“document[ed] contemporary racial discrimination in covered states.” The District Court also
found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by
“quietly but effectively deterring discriminatory changes.”
We will not shrink from our duty “as the bulwar[k] of a limited constitution against
legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but
“[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction
that normally the Court will not decide a constitutional question if there is some other ground
upon which to dispose of the case.” Here, the district also raises a statutory claim that it is
eligible to bail out under §§ 4 and 5. * * *
Section 4(b) of the Voting Rights Act authorizes a bailout suit by a “State or political
subdivision.” 42 U.S.C. § 1973b(a)(1)(A). There is no dispute that the district is a political
subdivision of the State of Texas in the ordinary sense of the term. * * *
The Act, however, also provides a narrower statutory definition in § 14(c)(2): “ ‘[P]olitical
subdivision’ shall mean any county or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term shall include any other
subdivision of a State which conducts registration for voting.” 42 U.S.C. § 1973l(c)(2). The
District Court concluded that this definition applied to the bailout provision in § 4(a), and that
the district did not qualify, since it is not a county or parish and does not conduct its own voter
registration.
* * * Were the scope of § 4(a) considered in isolation from the rest of the statute and our
prior cases, the District Court’s approach might well be correct. But here specific precedent, the
structure of the Voting Rights Act, and underlying constitutional concerns compel a broader
reading of the bailout provision.
Importantly, we do not write on a blank slate. Our decisions have already established that the
statutory definition in § 14(c)(2) does not apply to every use of the term “political subdivision”
in the Act. We have, for example, concluded that the definition does not apply to the
preclearance obligation of § 5. According to its text, § 5 applies only “[w]henever a [covered]
State or political subdivision” enacts or administers a new voting practice. Yet in Sheffield Bd. of
Comm’rs we rejected the argument by a Texas city that it was neither a State nor a political
subdivision as defined in the Act, and therefore did not need to seek preclearance of a voting
change. The dissent agreed with the city, pointing out that the city did not meet the statutory
definition of “political subdivision” and therefore could not be covered. Id., at 141-144 (opinion
of STEVENS, J.). The majority, however, relying on the purpose and structure of the Act,
 45

concluded that the “definition was intended to operate only for purposes of determining which
political units in nondesignated States may be separately designated for coverage under § 4(b).”
Id., at 128-129.
We reaffirmed this restricted scope of the statutory definition the next Term in Dougherty
County Bd. of Ed. v. White, 439 U.S. 32 (1978) [p. XXX]. * * *
According to these decisions, then, the statutory definition of “political subdivision” in
§ 14(c)(2) does not apply to every use of the term “political subdivision” in the Act. Even the
intervenors who oppose the district’s bailout concede, for example, that the definition should not
apply to § 2, which bans racial discrimination in voting by “any State or political subdivision,”
42 U.S.C. § 1973(a). In light of our holdings that the statutory definition does not constrict the
scope of preclearance required by § 5, the district argues, it only stands to reason that the
definition should not constrict the availability of bailout from those preclearance requirements
either.
The Government responds that any such argument is foreclosed by our interpretation of the
statute in City of Rome. There, it argues, we made clear that the discussion of political
subdivisions in Sheffield was dictum, and “specifically held that a ‘city is not a “political
subdivision” for purposes of § 4(a) bailout.’ ”
Even if that is what City of Rome held, the premises of its statutory holding did not survive
later changes in the law. * * * In 1982, * * * [a]s part of an overhaul of the bailout provision,
Congress amended the Voting Rights Act to expressly provide that bailout was also available to
“political subdivisions” in a covered State, “though [coverage] determinations were not made
with respect to such subdivision as a separate unit.” 42 U.S.C. § 1973b(a)(1) (emphasis added).
In other words, Congress decided that a jurisdiction covered because it was within a covered
State need not remain covered for as long as the State did. If the subdivision met the bailout
requirements, it could bail out, even if the State could not. In light of these amendments, our
logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act—if
anything, that logic compels the opposite conclusion.
Bailout and preclearance under § 5 are now governed by a principle of symmetry. “Given the
Court’s decision in Sheffield that all political units in a covered State are to be treated for § 5
purposes as though they were ‘political subdivisions’ of that State, it follows that they should
also be treated as such for purposes of § 4(a)’s bailout provisions.” City of Rome, supra, at 192
(STEVENS, J., concurring). * * *
We therefore hold that all political subdivisions—not only those described in § 14(c)(2)—are
eligible to file a bailout suit. * * *
The judgment of the District Court is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.

JUSTICE THOMAS, concurring in the judgment in part and dissenting in part. * * *

* * * The ultimate relief sought in this case is not bailout eligibility—it is bailout itself.
Eligibility for bailout turns on the statutory question addressed by the Court—the proper
definition of “political subdivision” in the bailout clauses of § 4(a) of the VRA. Entitlement to
bailout, however, requires a covered “political subdivision” to submit substantial evidence
indicating that it is not engaging in “discrimination in voting on account of race,” see 42 U.S.C.
§ 1973b(a)(3). The Court properly declines to give appellant bailout because appellant has not
yet proved its compliance with the statutory requirements for such relief. See §§ 1973b(a)(1)-(3).
46

In fact, the record below shows that appellant’s factual entitlement to bailout is a vigorously
contested issue. Given its resolution of the statutory question, the Court has thus correctly
remanded the case for resolution of appellant’s factual entitlement to bailout.
But because the Court is not in a position to award appellant bailout, adjudication of the
constitutionality of § 5, in my view, cannot be avoided. * * * Absent a determination that
appellant is not just eligible for bailout, but is entitled to it, this case will not have been entirely
disposed of on a nonconstitutional ground. Invocation of the doctrine of constitutional avoidance
is therefore inappropriate in this case.
The doctrine of constitutional avoidance is also unavailable here because an interpretation of
§ 4(a) that merely makes more political subdivisions eligible for bailout does not render § 5
constitutional and the Court notably does not suggest otherwise. Bailout eligibility is a distant
prospect for most covered jurisdictions [because of the extensive requirements for obtaining a
bailout]. * * * Congress, of course, has complete authority to set the terms of bailout. But its
promise of a bailout opportunity has, in the great majority of cases, turned out to be no more than
a mirage. [O]nly a handful “of the more than 12,000 covered political subdivisions . . . have
successfully bailed out of the Act.” Accordingly, bailout eligibility does not eliminate the issue
of § 5’s constitutionality.
The Court quite properly alerts Congress that § 5 tests the outer boundaries of its Fifteenth
Amendment enforcement authority and may not be constitutional. And, although I respect the
Court’s careful approach to this weighty issue, I nevertheless believe it is necessary to
definitively resolve that important question. For the reasons set forth below, I conclude that the
lack of current evidence of intentional discrimination with respect to voting renders § 5
unconstitutional. The provision can no longer be justified as an appropriate mechanism for
enforcement of the Fifteenth Amendment. * * *
There is certainly no question that the VRA initially “was passed pursuant to Congress’
authority under the Fifteenth Amendment.” Lopez v. Monterey County, 525 U.S., [at] 282. For
example, §§ 2 and 4(a) seek to implement the Fifteenth Amendment’s substantive command by
creating a private cause of action to enforce § 1 of the Fifteenth Amendment, see § 1973(a), and
by banning discriminatory tests and devices in covered jurisdictions, see § 1973b(a). Other
provisions of the VRA also directly enforce the Fifteenth Amendment. See § 1973h (elimination
of poll taxes that effectively deny certain racial groups the right to vote); § 1973i(a) (“No person
acting under color of law shall fail or refuse to permit any person to vote who is entitled to
vote . . . or willfully fail or refuse to tabulate, count, and report such person’s vote”).
Section 5, however, was enacted for a different purpose: to prevent covered jurisdictions
from circumventing the direct prohibitions imposed by provisions such as §§ 2 and 4(a). * * * As
the Katzenbach Court explained, * * * it was appropriate to radically interfere with control over
local elections only in those jurisdictions with a history of discriminatory disenfranchisement as
those were “the geographic areas where immediate action seemed necessary.” [383 U.S.], at 328.
The Court believed it was thus “permissible to impose the new remedies” on the jurisdictions
covered under § 4(b) “at least in the absence of proof that they ha[d] been free of substantial
voting discrimination in recent years.” Id., at 330.
In upholding § 5 in Katzenbach, the Court nonetheless noted that the provision was an
“uncommon exercise of congressional power” that would not have been “appropriate” absent the
“exceptional conditions” and “unique circumstances” present in the targeted jurisdictions at that
particular time. Id., at 334-335. In reaching its decision, the Court thus refused to simply accept
Congress’ representation that the extreme measure was necessary to enforce the Fifteenth
 47

Amendment; rather, it closely reviewed the record compiled by Congress to ensure that § 5 was
“appropriate” antievasion legislation. See id., at 308. In so doing, the Court highlighted evidence
showing that black voter registration rates ran approximately 50 percentage points lower than
white voter registration in several States. See id., at 313. It also noted that the registration rate for
blacks in Alabama “rose only from 14.2% to 19.4% between 1958 and 1964; in Louisiana it
barely inched ahead from 31.7% to 31.8% between 1956 and 1965; and in Mississippi it
increased only from 4.4% to 6.4% between 1954 and 1964.” Ibid. The Court further observed
that voter turnout levels in covered jurisdictions had been at least 12% below the national
average in the 1964 Presidential election. See id., at 329-330.
The statistical evidence confirmed Congress’ judgment that “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” was working and could not be defeated through
case-by-case enforcement of the Fifteenth Amendment. Id., at 335. This record also clearly
supported Congress’ predictive judgment that such “States might try similar maneuvers in the
future in order to evade the remedies for voting discrimination contained in the Act itself.” Ibid.
These stark statistics—in conjunction with the unrelenting use of discriminatory tests and
practices that denied blacks the right to vote—constituted sufficient proof of “actual voting
discrimination” to uphold the preclearance requirement imposed by § 5 on the covered
jurisdictions as an appropriate exercise of congressional power under the Fifteenth Amendment.
Id., at 330. It was only “[u]nder the compulsion of these unique circumstances [that] Congress
responded in a permissibly decisive manner.” Id., at 335.
Several important principles emerge from Katzenbach and the decisions that followed it.
First, § 5 prohibits more state voting practices than those necessarily encompassed by the explicit
prohibition on intentional discrimination found in the text of the Fifteenth Amendment. The
explicit command of the Fifteenth Amendment is a prohibition on state practices that in fact deny
individuals the right to vote “on account of” race, color, or previous servitude. In contrast, § 5 is
the quintessential prophylaxis; it “goes beyond the prohibition of the Fifteenth Amendment by
suspending all changes to state election law—however innocuous—until they have been
precleared by federal authorities in Washington, D.C.” * * *
Second, because it sweeps more broadly than the substantive command of the Fifteenth
Amendment, § 5 pushes the outer boundaries of Congress’ Fifteenth Amendment enforcement
authority. * * * More than 40 years after its enactment, [the preclearance requirement’s]
intrusion [on state sovereignty] has become increasingly difficult to justify.
Third, to accommodate the tension between the constitutional imperatives of the Fifteenth
and Tenth Amendments—a balance between allowing the Federal Government to patrol state
voting practices for discrimination and preserving the States’ significant interest in self-
determination—the constitutionality of § 5 has always depended on the proven existence of
intentional discrimination so extensive that elimination of it through case-by-case enforcement
would be impossible. * * *
The Court has never deviated from this understanding. We have explained that prophylactic
legislation designed to enforce the Reconstruction Amendments must “identify conduct
transgressing the . . . substantive provisions” it seeks to enforce and be tailored “to remedying or
preventing such conduct.” Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings
Bank, 527 U.S. 627, 639 (1999). Congress must establish a “history and pattern” of
constitutional violations to establish the need for § 5 by justifying a remedy that pushes the limits
of its constitutional authority. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368
48

(2001). As a result, for § 5 to withstand renewed constitutional scrutiny, there must be a

demonstrated connection between the “remedial measures” chosen and the “evil presented” in
the record made by Congress when it renewed the Act. Flores, 521 U.S., [at] 530. “Strong
measures appropriate to address one harm may be an unwarranted response to another, lesser
one.” Ibid.
The extensive pattern of discrimination that led the Court to previously uphold § 5 as
enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged
in a systematic campaign to deny black citizens access to the ballot through intimidation and
violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests,
and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,” Katzenbach, 383
U.S., at 311, are gone. There is thus currently no concerted effort in these jurisdictions to engage
in the “unremitting and ingenious defiance of the Constitution,” id., at 309, that served as the
constitutional basis for upholding the “uncommon exercise of congressional power” embodied in
§ 5, id., at 334.
The lack of sufficient evidence that the covered jurisdictions currently engage in the type of
discrimination that underlay the enactment of § 5 undermines any basis for retaining it.
Punishment for long past sins is not a legitimate basis for imposing a forward-looking
preventative measure that has already served its purpose. Those supporting § 5’s reenactment
argue that without it these jurisdictions would return to the racially discriminatory practices of 30
and 40 years ago. But there is no evidence that public officials stand ready, if given the chance,
to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities
from voting. Without such evidence, the charge can only be premised on outdated assumptions
about racial attitudes in the covered jurisdictions. Admitting that a prophylactic law as broad as
§ 5 is no longer constitutionally justified based on current evidence of discrimination is not a
sign of defeat. It is an acknowledgment of victory.
The current statistical evidence confirms that the emergency that prompted the enactment of
§ 5 has long since passed. By 2006, the voter registration rates for blacks in Alabama, Louisiana,
and Mississippi had jumped to 71.8%, 66.9%, and 72.2%, respectively. Therefore, in contrast to
the Katzenbach Court’s finding that the “registration of voting-age whites ran roughly 50
percentage points or more ahead of Negro registration” in these States in 1964, see 383 U.S., at
313, since that time this disparity has nearly vanished. In 2006, the disparity was only 3
percentage points in Alabama, 8 percentage points in Louisiana, and in Mississippi, black voter
registration actually exceeded white voter registration by 1.5 percentage points. In addition,
blacks in these three covered States also have higher registration numbers than the registration
rate for whites in noncovered states.
Indeed, when reenacting § 5 in 2006, Congress evidently understood that the emergency
conditions which prompted § 5’s original enactment no longer exist. Instead of relying on the
kind of evidence that the Katzenbach Court had found so persuasive, Congress instead based
reenactment on evidence of what it termed “second generation barriers constructed to prevent
minority voters from fully participating in the electoral process.” But such evidence is not
probative of the type of purposeful discrimination that prompted Congress to enact § 5 in 1965.
For example, Congress relied upon evidence of racially polarized voting within the covered
jurisdictions. But racially polarized voting is not evidence of unconstitutional discrimination, is
not state action, and is not a problem unique to the South. The other evidence relied on by
Congress, such as § 5 enforcement actions, §§ 2 and 4 lawsuits, and federal examiner and
observer coverage, also bears no resemblance to the record initially supporting § 5, and is plainly
 49

insufficient to sustain such an extraordinary remedy. In sum, evidence of “second generation

barriers” cannot compare to the prevalent and pervasive voting discrimination of the 1960’s.
This is not to say that voter discrimination is extinct. * * * But the existence of discrete and
isolated incidents of interference with the right to vote has never been sufficient justification for
the imposition of § 5’s extraordinary requirements. From its inception, the statute was promoted
as a measure needed to neutralize a coordinated and unrelenting campaign to deny an entire race
access to the ballot. Perfect compliance with the Fifteenth Amendment’s substantive command is
not now—nor has it ever been—the yardstick for determining whether Congress has the power to
employ broad prophylactic legislation to enforce that Amendment. The burden remains with
Congress to prove that the extreme circumstances warranting § 5’s enactment persist today. A
record of scattered infringement of the right to vote is not a constitutionally acceptable substitute.
***

Notes and Questions

1. Should Congress’s exercise of power be judged under City of Boerne v. Flores’s
“congruent and proportional” standard or Katzenbach’s test of rationality? Does the outcome
depend on the choice of standards?
2. Is Justice Thomas correct that the “second generation barriers” cited by Congress are
insufficient to justify the use of Congress’s enforcement power? How could Congress compile a
record of recent discrimination, if the VRA is preventing the discrimination from occurring? See
Heather K. Gerken, Does Obama Change Everything?, BALKINIZATION, Apr. 28, 2009, at
http://balkin.blogspot.com/2009/04/does-obama-change-everything.html.
3. When the issue of § 5’s constitutionality returns to the Court, how should the Court
decide? What clues are there in NAMUDNO to the Court’s ultimate view on the matter? See
Heather K. Gerken, An Uncertain Fate for Voting Rights, AM. PROSPECT, June 23, 2009, at
http://www.prospect.org/cs/articles?article=an_uncertain_fate_for_voting_rights (“[The Court]
devotes a substantial amount of time to questioning Section 5’s constitutionality, the issue it is
supposedly not going to address. The opinion reads like a rough draft of the opinion the Court
would have written had it struck down Section 5.”); Pamela S. Karlan, Validating Congress’
Approach, in The Battle, Not the War, on Voting Rights, N.Y. TIMES June 22, 2009, at
http://roomfordebate.blogs.nytimes.com/2009/06/22/the-battle-not-the-war-on-voting-rights/;
Richard H. Pildes, A Warning to Congress, in The Battle, Not the War, on Voting Rights, supra.
4. The Court’s opinion did not reach the question of the constitutionality of § 5, but
language in the opinion suggested that the provision at best pushed the limits of congressional
authority, even if it were to be evaluated under the rationality standard. Why would Justices
Stevens, Souter, Ginsburg, and Breyer be willing to sign on to such language, when they
presumably believed that § 5 was constitutional? Professor Gerken has suggested that those
Justices may be telling Congress that the rest of the Court will strike down § 5 eventually, unless
Congress fixes the statute in the interim. See Heather Gerken, Can Congress Take a Hint,
ELECTION LAW BLOG, June 23, 2009, at http://electionlawblog.org/archives/013911.html. How
might Congress amend the statute, so as to preserve it in a future constitutional challenge? See
Tom Goldstein, Supreme Court Invalidates Section 5’s Coverage Scheme, SCOTUSBLOG, June
22, 2009, at http://www.scotusblog.com/wp/analysis-supreme-court-invalidates-section-
5%E2%80%99s-coverage-scheme-2/print/.
5. Do you agree with the Court that its interpretation of the bailout provision renders a
constitutional holding unnecessary?
50

6. Why does the Court adopt such an anti-textual interpretation of the bailout provision?
7. Consider the district court’s rationale for rejecting NAMUDNO’s statutory argument:
Eligibility for bailout is governed by section 4(a), which * * * Congress expanded in 1982 to include “any
political subdivision of [a covered] State . . . , though [the coverage] determinations were not made with
respect to such subdivision as a separate unit. 42 U.S.C. § 1973b(a)(1). Had Congress stopped at the
comma, there might be some question as to whether it intended to use the term “political subdivision” in its
broadest sense. But Congress did not stop at the comma. Instead, it added the phrase “though [the
coverage] determinations were not made with respect to such subdivision as a separate unit.” This language
demonstrates that Congress intended “political subdivision” to refer only to section 14(c)(2) political
subdivisions—that is, counties, parishes, and voter-registering subunits—since only “such subdivision[s]”
can be separately designated for coverage. Under the District’s interpretation, this language would be
surplusage. On its face, then, amended section 4(a) excludes political subunits—like the District—that do
not register voters and thus could not have been separately designated for coverage.
The House and Senate Reports accompanying the 1982 Amendments further clarify that Congress
intended the expanded bailout mechanism to encompass only section 14(c)(2) political subdivisions. The
1981 House Report states that the “standard for bail-out is broadened to permit political subdivisions, as
defined in Section 14(c)(2), in covered states to seek bail out although the state itself may remain covered.”
H.R. REP. NO. 97-227, at 2 (1981) (emphasis added). Leaving no doubt about the issue, the same report
observes that “[w]hen referring to a political subdivision this amendment refers only to counties and
parishes except in those rare instances in which the county does not conduct vote[r] registration; only in
such rare instances . . . can a jurisdiction smaller than a county or parish file for bailout.” Id. at 39. The
1982 Senate Report not only includes almost identical language, but also explains why Congress expressly
rejected the broad definition of political subdivision advanced by the District here:
Towns and cities within counties may not bailout separately. This is a logistical limit. As a
practical matter, if every political subdivision were eligible to seek separate bailout, we could not
expect that the Justice Department or private groups could remotely hope to monitor and to defend
the bailout suits. * * *
Id. at 57 n.192. * * * Section 4(a)’s legislative history thus confirms what its plain language reveals:
political subunits like the District are not qualified to seek bailout.”

Northwest Austin Municipal Utility District Number One v. Mukasey, 557 F. Supp. 2d 9, 21-22
(D.D.C. 2008). Does the district court or the Supreme Court have the better of the statutory
issue? Is the constitutional-avoidance canon strong enough to overcome the district court’s
arguments?