In 1966, appellant city of Rome, Ga., made certain changes in
its electoral system, including provisions for majority, rather
than plurality, vote for each of the nine members of the City
Commission; for three numbered posts within each of the three
(reduced from nine) wards; and for staggered terms for the
commissioners and for members of the Board of Education from each
ward; and a requirement that members of the Board reside in the
wards from which they were elected. In addition, the city made 60
annexations between November 1, 1964, and February 10, 1975.
Section 5 of the Voting Rights Act of 1965 (Act) requires
preclearance by the Attorney General of the United States or the
United States District Court for the District of Columbia of any
change in a "standard, practice, or procedure with respect to
voting" made after November 1, 1964, by jurisdictions that fall
within the coverage formula set forth in § 4(b) of the Act. Section
5 further provides that the Attorney General may clear a voting
practice only if it "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." Georgia was designated a covered jurisdiction in
1965, and the municipalities of that State accordingly must comply
with the preclearance procedure. Eventually, after at first having
failed to do so, Rome submitted the annexations and the 1966
electoral changes for preclearance, but the Attorney General
declined to preclear the above-enumerated electoral changes,
concluding that, in a city such as Rome, in which the population is
predominately white and racial bloc voting has been common, such
electoral changes would deprive Negro voters of the opportunity to
elect a candidate of their choice. The Attorney General also
refused to preclear 13 of the 60 annexations, finding that the city
had not carried its burden of proving that the disapproved
annexations would not dilute the Negro vote. Subsequently, however,
in response to the city's motion for reconsideration, the Attorney
General agreed to preclear the 13 annexations for Board of
Education elections, but still refused to preclear them for City
Commission elections. The city and two of its officials then filed
a declaratory judgment action in the United States District Court
for the District of Columbia, seeking relief from the Act based on
a variety
Page 446 U. S. 157
of claims. A three-judge court rejected the city's arguments and
granted summary judgment for the defendants, finding that the
disapproved electoral changes and annexations, while not made for
any discriminatory purpose, did have a discriminatory effect. The
court refused to allow the city to "bail out" of the Act's coverage
pursuant to § 4(a), which allows a covered jurisdiction to escape §
5's preclearance requirement by bringing a declaratory judgment
action and proving that no "test or device" has been used in the
jurisdiction during the 17 years preceding the filing of the action
"for the purpose or with the effect of denying or abridging the
right to vote on account of race or color."
Held:
1. The city may not use § 4(a)'s "bailout" procedure. In §
4(a)'s terms, the issue depends on whether the city is either a
"State with respect to which the determinations have been made"
under § 4(b) or a "political subdivision with respect to which such
determinations have been made as a separate unit," and here the
city fails to meet the definition of either term, since § 4(b)'s
coverage formula has never been applied to it. The city comes
within the Act only because it is part of a covered State, and,
hence, any "bailout" action to exempt the city must be filed by,
and seek to exempt all of, the State. Moreover, the legislative
history precludes any argument that § 4(a)'s "bailout" procedure,
made available to a covered "State," was also implicitly made
available to political units in the State. Pp.
446 U. S.
162-169.
2. The 60-day period under the Attorney General's regulation
requiring requests for reconsideration of his refusal to preclear
electoral changes to be decided within 60 days of their receipt,
commences anew when the submitting jurisdiction deems its initial
submission on a reconsideration motion to be inadequate and decides
to supplement it. Thus, here, where the city, less than 60 days
prior to the Attorney General's decision on the city's
reconsideration motion, submitted, on its own accord, affidavits to
supplement the motion, the Attorney General's response was timely.
A contrary ruling that the 60-day period ran continuously from the
date of the initial submission of the reconsideration motion would
mean that the Attorney General would, in some cases, be unable to
give adequate consideration to materials submitted in piecemeal
fashion, and might be able to respond only by denying the
reconsideration motion. Pp.
446 U. S.
170-172.
3. By describing in § 5 the elements of discriminatory purpose
and effect in the conjunctive, Congress plainly intended that a
voting practice not be precleared unless
both
discriminatory purpose and effect are absent. Furthermore, Congress
recognized this when, in 1975, it extended the Act for another
seven years. Pp.
446 U. S.
172-173.
Page 446 U. S. 158
4. The Act does not exceed Congress' power to enforce the
Fifteenth Amendment. Under § 2 of that Amendment, Congress may
prohibit practices that, in and of themselves, do not violate § 1
of the Amendment, so long as the prohibitions attacking racial
discrimination in voting are "appropriate." Here, the Act's ban on
electoral changes that are discriminatory in effect is an
appropriate method of promoting the Fifteenth Amendment's purposes,
even if it is assumed that § 1 prohibits only intentional
discrimination in voting.
South Carolina v. Katzenbach,
383 U. S. 301.
Congress could rationally have concluded that, because electoral
changes by jurisdictions with a demonstrable history of intentional
racial discrimination in voting create a risk of purposeful
discrimination, it was proper to prohibit changes that have a
discriminatory impact. Pp.
446 U. S. 173-178.
5. The Act does not violate principles of federalism. Principles
of federalism that might otherwise be an obstacle to congressional
authority are necessarily overridden by the power to enforce the
Civil War Amendments "by appropriate legislation,"
Fitzpatrick
v. Bitzer, 427 U. S. 445,
such Amendments being specifically designed as an expansion of
federal power and an intrusion on state sovereignty. Accordingly,
Congress had the authority to regulate state and local voting
through the provisions of the Act. Pp.
446 U. S.
178-180.
6. There is no merit to appellants' contention that the Act and
its preclearance requirement had outlived their usefulness by 1975,
when Congress extended the Act for another seven years. In view of
Congress' considered determination that at least another seven
years of statutory remedies were necessary to counter the
perpetuation of 95 years of pervasive voting discrimination, the
extension of the Act was plainly a constitutional method of
enforcing the Fifteenth Amendment. Pp.
446 U. S.
180-182
7. Nor is there any merit to the individual appellants' argument
that, because no elections have been held in appellant city since
1974, their First, Fifth, Ninth, and Tenth Amendment rights as
private citizens of the city have been abridged. Under
circumstances where, upon the Attorney General's refusal to
preclear the electoral changes, the city could have conducted
elections under its prior electoral scheme, the city's failure to
hold elections can only be attributed to its own officials, and not
the operation of the Act. Pp.
446 U. S.
182-183.
8. The District Court's findings that the city had failed to
prove that the 1966 electoral changes and the annexations
disapproved by the Attorney General did not have a discriminatory
effect are not clearly erroneous. Pp.
446 U. S.
183-187.
450 F.
Supp. 378 and 472 F Supp. 221, affirmed.
Page 446 U. S. 159
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ.,
joined. BLACKMUN, J.,
post, p.
446 U. S. 187,
and STEVENS, J.,
post p
446 U. S. 190,
filed concurring opinions. POWELL, J., filed a dissenting opinion,
post, p.
446 U. S. 193.
REHNQUIST, J., filed a dissenting opinion, in which STEWART, J.,
joined,
post, p.
446 U. S.
206.
MR JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case is the constitutionality of the Voting
Rights Act of 1965 and its applicability to electoral changes and
annexations made by the city of Rome, Ga.
I
This is a declaratory judgment action brought by appellant city
of Rome, a municipality in northwestern Georgia, under the Voting
Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973
et seq. In 1970, the city had a population of 30,759, the
racial composition of which was 76.6 white and 23.4 Negro. The
voting-age population in 1970 was 79.4% white and 20.6% Negro.
The governmental structure of the city is established by a
charter enacted in 1918 by the General Assembly of Georgia.
Page 446 U. S. 160
Before the amendments at issue in this case, Rome's city charter
provided for a nine-member City Commission and a five-member Board
of Education to be elected concurrently on an at-large basis by a
plurality of the vote. The city was divided into nine wards, with
one city commissioner from each ward to be chosen in the city-wide
election. There was no residency requirement for Board of Education
candidates.
In 1966, the General Assembly of Georgia passed several laws of
local application that extensively amended the electoral provisions
of the city's charter. These enactments altered the Rome electoral
scheme in the following ways:
(1) the number of wards was reduced from nine to three;
(2) each of the nine commissioners would henceforth be elected
at-large to one of three numbered posts established within each
ward;
(3) each commissioner would be elected by majority, rather than
plurality, vote, and if no candidate for a particular position
received a majority, a runoff election would be held between the
two candidates who had received the largest number of votes;
(4) the terms of the three commissioners from each ward would be
staggered;
(5) the Board of Education was expanded from five to six
members;
(6) each Board member would be elected at large, by majority
vote, for one of two numbered posts created in each of the three
wards, with runoff procedures identical to those applicable to City
Commission elections;
(7) Board members would be required to reside in the wards from
which they were elected;
(8) the terms of the two members from each ward would be
staggered.
Section 5 of the Voting Rights Act of 1965 requires preclearance
by the Attorney General or the United States District Court for the
District of Columbia of any change in a
Page 446 U. S. 161
"standard, practice, or procedure with respect to voting," 42
U.S.C. § 1973c, made after November 1, 1964, by jurisdictions that
fall within the coverage formula set forth in § 4(b) of the Act, 42
U.S.C. § 1973b(b). In 1965, the Attorney General designated Georgia
a covered jurisdiction under the Act, 30 Fed.Reg. 9897, and the
municipalities of that State must therefore comply with the
preclearance procedure,
United States v. Board of Commissioners
of Sheffield, Ala., 435 U. S. 110
(1978).
It is not disputed that the 1966 changes in Rome's electoral
system were within the purview of the Act.
E.g., Allen v. State
Board of Elections, 393 U. S. 544
(1969). Nonetheless, the city failed to seek preclearance for them.
In addition, the city did not seek preclearance for 60 annexations
made between November 1, 1964, and February 10, 1975, even though
required to do so because an annexation constitutes a change in a
"standard, practice, or procedure with respect to voting" under the
Act,
Perkins v. Matthews, 400 U.
S. 379 (1971).
In June, 1974, the city did submit one annexation to the
Attorney General for preclearance. The Attorney General discovered
that other annexations had occurred, and, in response to his
inquiries, the city submitted all the annexations and the 1966
electoral changes for preclearance. The Attorney General declined
to preclear the provisions for majority vote, numbered posts, and
staggered terms for City Commission and Board of Education
elections, as well as the residency requirement for Board
elections. He concluded that, in a city such as Rome, in which the
population is predominately white and racial bloc voting has been
common, these electoral changes would deprive Negro voters of the
opportunity to elect a candidate of their choice. The Attorney
General also refused to preclear 13 of the 60 annexations in
question. He found that the disapproved annexations either
contained predominately white populations of significant size
Page 446 U. S. 162
or were near predominately white areas and were zoned for
residential subdivision development. Considering these factors in
light of Rome's at-large electoral scheme and history of racial
bloc voting, he determined that the city had not carried its burden
of proving that the annexations would not dilute the Negro
vote.
In response to the city's motion for reconsideration, the
Attorney General agreed to clear the 13 annexations for School
Board elections. He reasoned that his disapproval of the 1966
voting changes had resurrected the preexisting electoral scheme,
and that the revivified scheme passed muster under the Act. At the
same time, he refused to clear the annexations for City Commission
elections because, in his view, the residency requirement for City
Commission contained in the preexisting electoral procedures could
have a discriminatory effect.
The city and two of its officials then filed this action,
seeking relief from the Act based on a variety of claims. A
three-judge court, convened pursuant to 42 U.S.C. §§ 1973b(a) and
1973c, rejected the city's arguments and granted summary judgment
for the defendants.
472 F.
Supp. 221 (DC 1979). We noted probable jurisdiction, 443 U.S.
914 (1979), and now affirm
II
We must first address the appellants' assertion that, for two
reasons, this Court may avoid reaching the merits of this
action.
A
The appellants contend that the city may exempt itself from the
coverage of the Act. To evaluate this argument, we must examine the
provisions of the Act in some detail.
Section 5 of the Act requires that a covered jurisdiction that
wishes to enact any "standard, practice, or procedure with respect
to voting different from that in force or effect on
Page 446 U. S. 163
November 1, 1964," must seek preclearance from the Attorney
General or the United States District Court for the District of
Columbia. 79 Stat. 439, as amended, 42 U.S.C. § 1973c. [
Footnote 1]
Page 446 U. S. 164
Section 4(a) of the Act, 79 Stat. 438, as amended, 42 U.S.C. §
1973b(a), [
Footnote 2] provides
that the preclearance requirement of
Page 446 U. S. 165
§ 5 is applicable to "any State" that the Attorney General has
determined qualifies under the coverage formula of § 4(b), 42
Page 446 U. S. 166
U.S.C. § 1973b(b), [
Footnote
3] and to "any political subdivision with respect to which such
determinations have been made as a separate unit." As we have
noted, the city of Rome comes within the preclearance requirement
because it is a political unit in a covered jurisdiction, the State
of Georgia.
United States v. Board of Commissioners of
Sheffield, Ala., 435 U. S. 110
(1978).
Page 446 U. S. 167
Section 4(a) also provides, however, a procedure for exemption
from the Act. This so-called "bailout" provision allows a covered
jurisdiction to escape the preclearance requirement of § 5 by
bringing a declaratory judgment action before a three-judge panel
of the United States District Court for the District of Columbia
and proving that no "test or device" [
Footnote 4] has been used in the jurisdiction
"during the seventeen years preceding the filing of the action
for the purpose or with the effect of denying or abridging the
right to vote on account of race or color."
The District Court refused to allow the city to "bail out" of
the Act's coverage, holding that the political units of a covered
jurisdiction cannot independently bring a § 4(a) bailout action. We
agree.
In the terms of § 4(a), the issue turns on whether the city is,
for bailout purposes, either a "State with respect to which the
determinations have been made under the third sentence of
subsection (b) of this section" or a "political subdivision with
respect to which such determinations have been made as a separate
unit," the "determinations" in each instance being the Attorney
General's decision whether the jurisdiction falls within the
coverage formula of § 4(b). On the face of the statute, the city
fails to meet the definition for either term, since the coverage
formula of § 4(b) has never been applied to it. Rather, the city
comes within the Act because it is part of a covered State. Under
the plain language of the statute, then, it appears that any
bailout action to exempt the city must be filed by, and seek to
exempt all of, the State of Georgia.
Page 446 U. S. 168
The appellants seek to avoid this conclusion by relying on our
decision in
United States v. Board of Commissioners of
Sheffield, Ala., supra. That decision, however, did not even
discuss the bailout process. In
Sheffield, the Court held
that, when the Attorney General determines that a State falls
within the coverage formula of § 4(b), any political unit of the
State must preclear new voting procedures under § 5 regardless of
whether the unit registers voters, and therefore would otherwise
come within the Act as a "political subdivision." [
Footnote 5] In so holding, the Court
necessarily determined that the scope of §§ 4(a) and 5 is
"geographic," or "territorial," 435 U.S. at
435 U. S. 120,
435 U. S. 126,
and thus that, when an entire State is covered, it is irrelevant
whether political units of it might otherwise come under § 5 as
"political subdivisions." 435 U.S. at
435 U. S.
126-129.
Sheffield, then, did not hold that cities such as Rome
are "political subdivisions" under §§ 4 and 5. Thus, our decision
in that case is in no way inconsistent with our conclusion that,
under the express statutory language, the city is not a "political
subdivision" for purposes of § 4(a) "bailout."
Nor did
Sheffield suggest that a municipality in a
covered State is itself a "State" for purposes of the § 4(a)
exemption procedure.
Sheffield held that, based on the
structure and purposes of the Act, the legislative history, and the
contemporaneous interpretation of the Attorney General, the
ambiguities of §§ 4(a) and 5 should be resolved by holding that §
5's preclearance requirement for electoral changes by a covered
"State" reached all such changes made by political units in that
State.
See 435 U.S. at
435 U. S.
117-118. By contrast, in this
Page 446 U. S. 169
case, the legislative history precludes any argument that §
4(a)'s bailout procedure, made available to a covered "State," was
also implicitly made available to political units in the State. The
House Committee Report stated:
"This opportunity to obtain exemption is afforded only to those
States or to those subdivisions as to which the formula has been
determined to apply as a separate unit; subdivisions within a State
which is covered by the formula are not afforded the opportunity
for separate exemption."
H.R.Rep. No. 439, 89th Cong., 1st Sess., 14 (1965). The Senate
Committee's majority Report is to the same effect:
"We are also of the view that an entire State covered by the
test and device prohibition of section 4 must be able to lift the
prohibition if any part of it is to be relieved from the
requirements of section 4."
S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, p. 16 (1965).
See also id. at 21. Bound by this unambiguous
congressional intent, we hold that the city of Rome may not use the
bailout procedure of § 4(a). [
Footnote 6]
Page 446 U. S. 170
B
The appellants next argue that its electoral changes have been
precleared because of allegedly tardy action by the Attorney
General. On May 21, 1976, the city asked the Attorney General to
reconsider his refusal to preclear the electoral changes and the 13
annexations. On July 13, 1976, upon its own accord, the city
submitted two additional affidavits. The Attorney General denied
the motion to reconsider on August 12, 1976.
Section 5 of the Act provides that the Attorney General must
interpose objections to original submissions within 60 days of
their filing. [
Footnote 7] If
the Attorney General fails to make a timely objection, the voting
practices submitted become fully enforceable. By regulation, the
Attorney General has provided that requests for reconsideration
shall also be decided within 60 days of their receipt. 28 CFR §
51.3(d) (1979). [
Footnote 8]
If, in the present case, the 60-day period for reconsideration is
computed as running continuously from May 24, the date of the
initial submission of the reconsideration motion, the period
expired before the Attorney General made his August 12 response. In
contrast, if the period is measured from July 14,
Page 446 U. S. 171
the date the city supplemented its request, the Attorney
General's response was timely.
The timing provisions of both the Act and the regulations are
silent on the effect of supplements to requests for
reconsideration. We agree with the Attorney General that the
purposes of the Act and its implementing regulations would be
furthered if the 60-day period provided by 28 CFR § 51.3(d) were
interpreted to commence anew when additional information is
supplied by the submitting jurisdiction on its own accord.
The logic of
Georgia v. United States, 411 U.
S. 526 (1973), indicates that the Government's approach
fully comports with the Act and regulations. In that case, the
Court examined a regulation of the Attorney General, 28 CFR §
51.18(a), that provided that § 5's mandatory 60-day period for
consideration of original submissions is tolled whenever the
Attorney General finds it necessary to request additional
information from the submitting jurisdiction. Under the regulation,
the 60-day period commences anew when the jurisdiction in question
furnishes the requested information to the Attorney General. The
Court upheld the regulation, holding that it was "wholly reasonable
and consistent with the Act." 411 U.S. at
411 U. S.
541.
Georgia v. United States stands for the proposition
that the purposes of the Act are furthered if, once all information
relevant to a submission is placed before the Attorney General, the
Attorney General is accorded the full 60-day period provided by law
in which to make his "difficult and complex" decision,
id.
at
411 U. S. 540.
It follows, then, that, when the submitting jurisdiction deems its
initial submission on a reconsideration motion to be inadequate and
decides to supplement it, as the city of Rome did in the present
case, the 60-day period under 28 CFR § 51.3(d) is commenced anew. A
contrary ruling would mean that the Attorney General would, in some
cases, be unable to give adequate consideration to materials
submitted in piecemeal fashion. In such circumstances, the
Page 446 U. S. 172
Attorney General might be able to respond only by denying the
reconsideration motion. Such a result would run counter to the
purposes of the Act and regulations, since it would penalize
submitting jurisdictions that have legitimate reasons to file
supplementary materials. [
Footnote
9]
III
The appellants raise five issues of law in support of their
contention that the Act may not properly be applied to the
electoral changes and annexations disapproved by the Attorney
General.
A
The District Court found that the disapproved electoral changes
and annexations had not been made for any discriminatory purpose,
but did have a discriminatory effect. The appellants argue that § 5
of the Act may not be read as prohibiting voting practices that
have only a discriminatory effect. The appellants do not dispute
that the plain language of § 5 commands that the Attorney General
may clear a practice only if it "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
(emphasis added). By describing the elements of discriminatory
purpose and effect in the conjunctive, Congress plainly intended
that a voting practice not be precleared unless both discriminatory
purpose and effect are absent. Our decisions have consistently
interpreted § 5 in this fashion.
Beer v. United States,
425 U. S. 130,
425 U. S. 141
(1976);
City of Richmond v. United States, 422 U.
S. 358,
422 U. S. 372
(1975);
Georgia v. United States, supra, at
411 U. S. 538;
Perkins v. Matthews, 400 U. S. 379,
400 U. S. 387,
400 U. S. 388
(1971). Furthermore, Congress recognized that the Act prohibited
both discriminatory purpose and effect when, in 1975, it
extended
Page 446 U. S. 173
the Act for another seven years. S.Rep. No. 9295, pp. 1516
(1975) (hereinafter S.Rep.); H.R.Rep. No. 94-196, pp. 8-9 (1975)
(hereinafter H.R.Rep.).
The appellants urge that we abandon this settled interpretation
because, in their view, § 5, to the extent that it prohibits voting
changes that have only a discriminatory effect, is
unconstitutional. Because the statutory meaning and congressional
intent are plain, however, we are required to reject the
appellants' suggestion that we engage in a saving construction and
avoid the constitutional issues they raise.
See, e.g., NLRB v.
Catholic Bishop of Chicago, 440 U. S. 490,
440 U. S.
499-501 (1979);
id. at
440 U. S.
508-511 (BRENNAN, J., dissenting). Instead, we now turn
to their constitutional contentions.
B
Congress passed the Act under the authority accorded it by the
Fifteenth Amendment. [
Footnote
10] The appellants contend that the Act is unconstitutional
because it exceeds Congress' power to enforce that Amendment. They
claim that § 1 of the Amendment prohibits only purposeful racial
discrimination in voting, and that, in enforcing that provision
pursuant to § 2, Congress may not prohibit voting practices lacking
discriminatory intent, even if they are discriminatory in effect.
We hold that, even if § 1 of the Amendment prohibits only
purposeful discrimination, [
Footnote 11] the prior decisions of this Court foreclose
any argument that Congress may not, pursuant to § 2, outlaw voting
practices that are discriminatory in effect.
Page 446 U. S. 174
The appellants are asking us to do nothing less than overrule
our decision in
South Carolina v. Katzenbach, 383 U.
S. 301 (1966), in which we upheld the constitutionality
of the Act. The Court in that case observed that, after making an
extensive investigation, Congress had determined that its earlier
attempts to remedy the "insidious and pervasive evil" of racial
discrimination in voting had failed because of "unremitting and
ingenious defiance of the Constitution" in some parts of this
country.
Id. at
383 U. S. 309.
Case-by-case adjudication had proved too ponderous a method to
remedy voting discrimination, and, when it had produced favorable
results, affected jurisdictions often "merely switched to
discriminatory devices not covered by the federal decrees."
Id. at
383 U. S. 314.
In response to its determination that "sterner and more elaborate
measures" were necessary,
id. at
383 U. S. 309,
Congress adopted the Act, a "complex scheme of stringent remedies
aimed at areas where voting discrimination has been most flagrant,"
id. at
383 U. S.
315.
The Court then turned to the question whether the Fifteenth
Amendment empowered Congress to impose the rigors of the Act upon
the covered jurisdictions. The Court examined the interplay between
the judicial remedy created by § 1 of the Amendment and the
legislative authority conferred by § 2:
"By adding this authorization [in § 2], the Framers indicated
that Congress was to be chiefly responsible for implementing the
rights created in § 1."
"It is the power of Congress which has been enlarged. Congress
is authorized to
enforce the prohibitions by appropriate
legislation. Some legislation is contemplated to make the [Civil
War] amendments fully effective."
"
Ex parte Virginia, 100 U. S. 339,
100 U. S.
345. Accordingly, in addition to the courts, Congress
has full remedial powers to effectuate the constitutional
prohibition against racial discrimination in voting."
383 U.S. at
383 U. S.
325-326 (emphasis in original).
Page 446 U. S. 175
Congress' authority under § 2 of the Fifteenth Amendment, we
held, was no less broad than its authority under the Necessary and
Proper Clause,
See McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 421
(1819). This authority, as applied by longstanding precedent to
congressional enforcement of the Civil War Amendments, is defined
in these terms:
"'Whatever legislation is appropriate, that is, adapted to carry
out the objects the [Civil War] amendments have in view, whatever
tends to enforce submission to the prohibitions they contain, and
to secure to all persons the enjoyment of perfect equality of civil
rights and the equal protection of the laws against State denial or
invasion, if not prohibited, is brought within the domain of
congressional power.'
Ex parte Virginia, 100 U.S.
[339,]
100 U. S. 345-346."
South Carolina v. Katzenbach, supra at
383 U. S. 327.
Applying this standard, the Court held that the coverage formula of
§ 4(b), the ban on the use of literacy tests and related devices,
the requirement that new voting rules must be precleared and must
lack both discriminatory purpose and effect, and the use of federal
examiners were all appropriate methods for Congress to use to
enforce the Fifteenth Amendment. 383 U.S. at
383 U. S.
329-337.
The Court's treatment in
South Carolina v. Katzenbach
of the Act's ban on literacy tests demonstrates that, under the
Fifteenth Amendment, Congress may prohibit voting practices that
have only a discriminatory effect. The Court had earlier held in
Lassiter v. Northampton County Board of Elections,
360 U. S. 45
(1959), that the use of a literacy test that was fair on its face
and was not employed in a discriminatory fashion did not violate §
1 of the Fifteenth Amendment. In upholding the Act's
per
se ban on such tests in
South Carolina v. Katzenbach,
the Court found no reason to overrule
Lassiter. Instead,
the Court recognized that the prohibition was an appropriate method
of enforcing the Fifteenth Amendment,
Page 446 U. S. 176
because, for many years, most of the covered jurisdictions had
imposed such tests to effect voting discrimination, and the
continued use of even nondiscriminatory, fairly administered
literacy tests would "freeze the effect" of past discrimination by
allowing white illiterates to remain on the voting rolls while
excluding illiterate Negroes.
South Carolina v. Katzenbach,
supra at
383 U. S. 334.
This holding makes clear that Congress may, under the authority of
§ 2 of the Fifteenth Amendment, prohibit state action that, though
in itself not violative of § 1, perpetuates the effects of past
discrimination.
Other decisions of this Court also recognize Congress' broad
power to enforce the Civil War Amendments. In
Katzenbach v.
Morgan, 384 U. S. 641
(1966), the Court held that legislation enacted under authority of
§ 5 of the Fourteenth Amendment [
Footnote 12] would be upheld so long as the Court could
find that the enactment "
is plainly adapted to [the] end'" of
enforcing the Equal Protection Clause and "is not prohibited by,
but is consistent with, `the letter and spirit of the
constitution,'" regardless of whether the practices outlawed by
Congress, in themselves, violated the Equal Protection Clause. 384
U.S. at 384 U. S. 651
(quoting McCulloch v. Maryland, supra, at 17 U. S. 421).
The Court stated that,
"[c]orrectly viewed, § 5 is a positive grant of legislative
power authorizing Congress to exercise its discretion in
determining whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment."
384 U.S. at
384 U. S. 651.
Four years later, in
Oregon v. Mitchell, 400 U.
S. 112 (1970), the Court unanimously upheld a provision
of the Voting Rights Act Amendments of 1970, Pub.L. 91-285, 84
Stat. 314, imposing a 5-year nationwide ban on literacy tests and
similar requirements for registering to vote in state and federal
elections. The Court concluded that Congress could rationally
have
Page 446 U. S. 177
determined that these provisions were appropriate methods of
attacking the perpetuation of earlier, purposeful racial
discrimination, regardless of whether the practices they prohibited
were discriminatory only in effect.
See 400 U.S. at
400 U. S.
132-133 (opinion of Black, J.);
id. at
400 U. S.
144-147 (opinion of Douglas, J.);
id. at
400 U. S.
216-217 (opinion of Harlan, J.);
id. at
400 U. S.
231-236 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.);
id. at
400 U. S.
282-284 (opinion of STEWART, J., joined by BURGER, C.J.,
and BLACKMUN, J.). [
Footnote
13]
It is clear, then, that, under § 2 of the Fifteenth Amendment,
Congress may prohibit practices that, in and of themselves, do not
violate § 1 of the Amendment, so long as the prohibitions attacking
racial discrimination in voting are "appropriate," as that term is
defined in
McCulloch v. Maryland and
Ex parte
Virginia, 100 U. S. 339
(1880). In the present case, we hold that the Act's ban on
electoral changes that are discriminatory in effect is an
appropriate method of promoting the purposes of the Fifteenth
Amendment, even if it is assumed that § 1 of the Amendment
prohibits only intentional discrimination in voting. Congress could
rationally have concluded that, because electoral changes by
jurisdictions with a demonstrable history of intentional racial
discrimination in voting create the risk of purposeful
discrimination, [
Footnote
14] it was proper to prohibit changes that have a
discriminatory impact.
See South Carolina v. Katzenbach,
383 U.S. at
383 U. S. 335;
Oregon v. Mitchell,
Page 446 U. S. 178
supra at
400 U. S. 216
(opinion of Harlan, J.). We find no reason, then, to disturb
Congress' considered judgment that banning electoral changes that
have a discriminatory impact is an effective method of preventing
States from "
undo[ing] or defeat[ing] the rights recently won'
by Negroes." Beer v. United States, 425 U.S. at
425 U. S. 140
(quoting H.R.Rep. No. 91-397, p.8 (1969)).
C
The appellants next assert that, even if the Fifteenth Amendment
authorized Congress to enact the Voting Rights Act, that
legislation violates principles of federalism articulated in
National League of Cities v. Usery, 426 U.
S. 833 (1976). This contention necessarily supposes that
National League of Cities signifies a retreat from our
decision in
South Carolina v. Katzenbach, supra, where we
rejected the argument that the Act "exceed[s] the powers of
Congress and encroach[es] on an area reserved to the States by the
Constitution," 383 U.S. at
383 U. S. 323, and determined that,
"[a]s against the reserved powers of the States, Congress may
use any rational means to effectuate the constitutional prohibition
of racial discrimination in voting,"
id. at
383 U. S. 324.
To the contrary, we find no inconsistency between these
decisions.
In
National League of Cities, the Court held that
federal legislation regulating minimum wages and hours could not
constitutionally be extended to employees of state and local
governments. The Court determined that the Commerce Clause did not
provide Congress the authority to enact legislation "directly
displac[ing] the States' freedom to structure integral operations
in areas of traditional governmental functions," 426 U.S. at
426 U. S. 852,
which, it held, included employer-employee relationships in
programs traditionally conducted by States,
id. at
426 U. S.
851-852.
The decision in
National League of Cities was based
solely on an assessment of congressional power under the Commerce
Clause, and we explicitly reserved the question
"whether different results might obtain if Congress seeks to
affect integral
Page 446 U. S. 179
operations of state governments by exercising authority granted
it under other sections of the Constitution such as . . . § 5 of
the Fourteenth Amendment."
Id. at
426 U. S. 852,
n. 17. The answer to this question came four days later in
Fitzpatrick v. Bitzer, 427 U. S. 445
(1976). That case presented the issue whether, in spite of the
Eleventh Amendment, Congress had the authority to bring the States
as employers within the coverage of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e
et seq., and to provide
that successful plaintiffs could recover retroactive monetary
relief. The Court held that this extension of Title VII was an
appropriate method of enforcing the Fourteenth Amendment:
"[W]e think that the Eleventh Amendment, and the principle of
state sovereignty which it embodies . . . are necessarily limited
by the enforcement provisions of § 5 of the Fourteenth Amendment.
In that section, Congress is expressly granted authority to enforce
by appropriate legislation' the substantive provisions of the
Fourteenth Amendment, which themselves embody significant
limitations on state authority. When Congress acts pursuant to § 5,
not only is it exercising legislative authority that is plenary
within the terms of the constitutional grant, it is exercising that
authority under one section of a constitutional Amendment whose
other sections, by their own terms, embody limitations on state
authority."
Fitzpatrick v. Bitzer, supra at
427 U. S.
456.
We agree with the court below that
Fitzpatrick stands
for the proposition that principles of federalism that might
otherwise be an obstacle to congressional authority are necessarily
overridden by the power to enforce the Civil War Amendments "by
appropriate legislation." Those Amendments were specifically
designed as an expansion of federal power and an intrusion on state
sovereignty. Applying this principle, we hold that Congress had the
authority to regulate state and local voting through the provisions
of the Voting Rights
Page 446 U. S. 180
Act. [
Footnote 15]
National League of Cities, then, provides no reason to
depart from our decision in
South Carolina v. Katzenbach
that "the Fifteenth Amendment supersedes contrary exertions of
state power," 383 U.S. at
383 U. S. 325,
and that the Act is "an appropriate means for carrying out
Congress' constitutional responsibilities,"
id. at
383 U. S. 308.
[
Footnote 16]
D
The appellants contend, in the alternative, that, even if the
Act and its preclearance requirement were appropriate means of
enforcing the Fifteenth Amendment in 1965, they had outlived their
usefulness by 1975, when Congress extended the Act for another
seven years. We decline this invitation to overrule Congress'
judgment that the 1975 extension was warranted.
In considering the 1975 extension, Congress acknowledged that,
largely as a result of the Act, Negro voter registration had
improved dramatically since 1965. H.R.Rep. at 6; S.Rep. at 13.
Congress determined, however, that "a bleaker side of the picture
yet exists." H.R.Rep. at 7; S.Rep. at 13. Significant disparity
persisted between the percentages of whites and Negroes registered
in at least several of the covered jurisdictions. In addition,
though the number of Negro elected officials had increased since
1965, most held only relatively minor positions, none held
statewide office, and
Page 446 U. S. 181
their number in the state legislatures fell far short of being
representative of the number of Negroes residing in the covered
jurisdictions. Congress concluded that, because minority political
progress under the Act, though "undeniable," had been "modest and
spotty," extension of the Act was warranted. H.R.Rep. at 7-11;
S.Rep. at 11-19.
Congress gave careful consideration to the propriety of
readopting § 5's preclearance requirement. It first noted that,
"[i]n recent years, the importance of this provision has become
widely recognized as a means of promoting and preserving minority
political gains in covered jurisdictions."
H.R.Rep. at 8; S.Rep. at 15. After examining information on the
number and types of submissions made by covered jurisdictions and
the number and nature of objections interposed by the Attorney
General, Congress not only determined that § 5 should be extended
for another seven years, it gave that provision this ringing
endorsement:
"The recent objections entered by the Attorney General . . . to
Section 5 submissions clearly bespeak the continuing need for this
preclearance mechanism. As registration and voting of minority
citizens increases [
sic], other measures may be resorted
to which would dilute increasing minority voting strength."
"
* * * *"
"The Committee is convinced that it is largely Section 5 which
has contributed to the gains thus far achieved in minority
political participation, and it is likewise Sect[i]on 5 which
serves to insure that that progress not be destroyed through new
procedures and techniques. Now is not the time to remove those
preclearance protections from such limited and fragile
success."
H.R.Rep. at 111.
See also S.Rep. at 15-19.
It must not be forgotten that, in 1965,
95 years
after
Page 446 U. S. 182
to all citizens regardless of race or color, Congress found that
racial discrimination in voting was an
"insidious and pervasive evil which had been perpetuated in
certain parts of our country through unremitting and ingenious
defiance of the Constitution."
South Carolina v. Katzenbach, 383 U.S. at
383 U. S. 309.
In adopting the Voting Rights Act, Congress sought to remedy this
century of obstruction by shifting "the advantage of time and
inertia from the perpetrators of the evil to its victims."
Id. at
383 U. S. 328.
Ten years later, Congress found that a 7-year extension of the Act
was necessary to preserve the "limited and fragile" achievements of
the Act, and to promote further amelioration of voting
discrimination. When viewed in this light, Congress' considered
determination that at least another 7 years of statutory remedies
were necessary to counter the perpetuation of 95 years of pervasive
voting discrimination is both unsurprising and unassailable. The
extension of the Act, then, was plainly a constitutional method of
enforcing the Fifteenth Amendment.
E
As their final constitutional challenge to the Act, [
Footnote 17] the individual
appellants argue that, because no elections have been held in Rome
since 1974, their First, Fifth, Ninth, and Tenth Amendment rights
as private citizens of the city have been abridged. In blaming the
Act for this result, these appellants identify the wrong culprit.
The Act does not restrict private political expression or prevent a
covered jurisdiction from holding elections; rather, it simply
provides that elections may be held either under electoral rules in
effect on November 1, 1964, or under rules adopted since that time
that have been properly precleared. When the Attorney General
refused to preclear the city's electoral changes, the city had the
authority to conduct elections under its electoral scheme in effect
on
Page 446 U. S. 183
November 1, 1964. Indeed, the Attorney General offered to
preclear any technical amendments to the city charter necessary to
permit elections under the preexisting scheme or a modification of
that scheme consistent with the Act. In these circumstances, the
city's failure to hold elections can only be attributed to its own
officials, and not to the operation of the Act.
IV
Now that we have reaffirmed our holdings in
South Carolina
v. Katzenbach that the Act is "an appropriate means for
carrying out Congress' constitutional responsibilities" and is
"consonant with all . . . provisions of the Constitution," 383 U.S.
at
383 U. S. 308,
we must address the appellants' contentions that the 1966 electoral
changes and the annexations disapproved by the Attorney General do
not, in fact, have a discriminatory effect. We are mindful that the
District Court's findings of fact must be upheld unless they are
clearly erroneous.
A
We conclude that the District Court did not clearly err in
finding that the city had failed to prove that the 1966 electoral
changes would not dilute the effectiveness of the Negro vote in
Rome. [
Footnote 18] The
District Court determined that racial bloc voting existed in Rome.
It found that the electoral changes from plurality-win to
majority-win elections, numbered posts, and staggered terms, when
combined with the presence of racial bloc voting and Rome's
majority white population and at-large electoral system, would
dilute Negro voting strength. The District Court recognized that,
under the preexisting plurality-win system, a Negro candidate would
have a fair opportunity to be elected by a plurality of the
vote
Page 446 U. S. 184
if white citizens split their votes among several white
candidates and Negroes engage in "single-shot voting" in his favor.
[
Footnote 19] The 1966
change to the majority vote/runoff election scheme significantly
decreased the opportunity for such a Negro candidate, since,
"even if he gained a plurality of votes in the general election,
[he] would still have to face the runner-up white candidate in a
head-to-head runoff election in which, given bloc voting by race
and a white majority, [he] would be at a severe disadvantage."
472 F. Supp. at 244 (footnotes omitted). [
Footnote 20]
Page 446 U. S. 185
The District Court's further conclusion that the city had failed
to prove that the numbered posts, staggered terms, and Board of
Education residency provisions would not have the effect of forcing
head-to-head contests between Negroes and whites and depriving
Negroes of the opportunity to elect a candidate by single-shot
voting,
id. at 245, is likewise not clearly erroneous.
[
Footnote 21] The District
Court's holdings regarding all of the 1966 electoral changes are
consistent with our statement in
Beer v. United States,
425 U.S. at
425 U. S. 141,
that
"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 [process]."
B
The District Court also found that the city had failed to meet
its burden of proving that the 13 disapproved annexations did not
dilute the Negro vote in Rome. The
Page 446 U. S. 186
city's argument that this finding is clearly erroneous is
severely undermined by the fact that it failed to present any
evidence shedding meaningful light on how the annexations affected
the vote of Rome's Negro community.
Because Rome's failure to preclear any of these annexations
caused a delay in federal review and placed the annexations before
the District Court as a group, the court was correct in concluding
that the cumulative effect of the 13 annexations must be examined
from the perspective of the most current available population data.
Unfortunately, the population data offered by the city was quite
uninformative. The city did not present evidence on the current
general population and voting-age population of Rome, much less a
breakdown of each population category by race. [
Footnote 22] Nor does the record reflect
current information regarding the city's registered voters. The
record does indicate the number of Negro and white registered
voters in the city as of 1975, but it is unclear whether these
figures included persons residing in the annexed areas in
dispute.
Certain facts are clear, however. In February, 1978, the most
recent date for which any population data were compiled, 2,582
whites and only 52 Negroes resided in the disapproved annexed
areas. Of these persons, 1,797 whites and only 24
Page 446 U. S. 187
Negroes were of voting age, and 823 whites and only 9 Negroes
were registered voters. We must assume that these persons moved to
the annexed areas from outside the city, rather than from within
the pre-annexation boundaries of the city, since the city, which
bore the burden of proof, presented no evidence to the
contrary.
The District Court properly concluded that these annexations
must be scrutinized under the Voting Rights Act.
See Perkins v.
Matthews, 400 U.S. at
400 U. S. 388-390. By substantially enlarging the city's
number of white eligible voters without creating a corresponding
increase in the number of Negroes, the annexations reduced the
importance of the votes of Negro citizens who resided within the
pre-annexation boundaries of the city. In these circumstances, the
city bore the burden of proving that its electoral system "fairly
reflects the strength of the Negro community as it exists after the
annexation[s]."
City of Richmond v. United States, 422
U.S. at
422 U. S. 371.
The District Court's determination that the city failed to meet
this burden of proof for City Commission elections was based on the
presence of three vote-dilutive factors: the at-large electoral
system, the residency requirement for officeholders, and the high
degree of racial bloc voting. Particularly in light of the
inadequate evidence introduced by the city, this determination
cannot be considered to be clearly erroneous.
The judgment of the District Court is affirmed.
It is so ordered.
[
Footnote 1]
In its entirety, § 5, as set forth in 42 U.S.C. § 1973c,
provides:
"Whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title based
upon determinations made under the first sentence of section
1973b(b) of this title are in effect shall enact or seek to
administer any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting different
from that in force or effect on November 1, 1964, or whenever a
State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the second sentence of section 1973b(b)
of this title are in effect shall enact or seek to administer any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from that
in force or effect on November 1, 1968, or whenever a State or
political subdivision with respect to which the prohibitions set
forth in section 1973b(a) of this title based upon determinations
made under the third sentence of section 1973b(b) of this title are
in effect shall enact or seek to administer any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that in force or
effect on November 1, 1972, such State or subdivision may institute
an action in the United States District Court for the District of
Columbia for a declaratory judgment that such qualification,
prerequisite, standard, practice, or procedure does not have the
purpose and will not have the effect of denying or abridging the
right to vote on account of race or color, or in contravention of
the guarantees set forth in section 1973b(f)(2) of this title, and
unless and until the court enters such judgment no person shall be
denied the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such proceeding if
the qualification, prerequisite, standard, practice, or procedure
has been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made. Neither an affirmative indication by the Attorney
General that no objection will be made, nor the Attorney General's
failure to object, nor a declaratory judgment entered under this
section shall bar a subsequent action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or procedure. In
the event the Attorney General affirmatively indicates that no
objection will be made within the sixty-day period following
receipt of a submission, the Attorney General may reserve the right
to re-examine the submission if additional information comes to his
attention during the remainder of the sixty-day period which would
otherwise require objection in accordance with this section. Any
action under this section shall be heard and determined by a court
of three judges in accordance with the provisions of section 2284
of title 28 and any appeal shall lie to the Supreme Court."
[
Footnote 2]
In its entirety, § 4(a), as set forth in 42 U.S.C. § 1973b(a),
provides:
"To assure that the right of citizens of the United States to
vote is not denied or abridged on account of race or color, no
citizen shall be denied the right to vote in any Federal, State, or
local election because of his failure to comply with any test or
device in any State with respect to which the determinations have
been made under the first two sentences of subsection (b) of this
section or in any political subdivision with respect to which such
determinations have been made as a separate unit, unless the United
States District Court for the District of Columbia in an action for
a declaratory judgment brought by such State or subdivision against
the United States has determined that no such test or device has
been used during the seventeen years preceding the filing of the
action for the purpose or with the effect of denying or abridging
the right to vote on account of race or color:
Provided,
That no such declaratory judgment shall issue with respect to any
plaintiff for a period of seventeen years after the entry of a
final judgment of any court of the United States, other than the
denial of a declaratory judgment under this section, whether
entered prior to or after August 6, 1965, determining that denials
or abridgments of the right to vote on account of race or color
through the use of such tests or devices have occurred anywhere in
the territory of such plaintiff. No citizen shall be denied the
right to vote in any Federal, State, or local election because of
his failure to comply with any test or device in any State with
respect to which the determinations have been made under the third
sentence of subsection (b) of this section or in any political
subdivision with respect to which such determinations have been
made as a separate unit, unless the United States District Court
for the District of Columbia in an action for a declaratory
judgment brought by such State or subdivision against the United
States has determined that no such test or device has been used
during the ten years preceding the filing of the action for the
purpose or with the effect of denying or abridging the right to
vote on account of race or color, or in contravention of the
guarantees set forth in subsection (f)(2) of this section:
Provided, That no such declaratory judgment shall issue
with respect to any plaintiff for a period of ten years after the
entry of a final judgment of any court of the United States, other
than the denial of a declaratory judgment under this section,
whether entered prior to or after the enactment of this paragraph,
determining that denials or abridgments of the right to vote on
account of race or color, or in contravention of the guarantees set
forth in subsection (f)(2) of this section through the use of tests
or devices have occurred anywhere in the territory of such
plaintiff."
"An action pursuant to this subsection shall be heard and
determined by a court of three judges in accordance with the
provisions of section 2284 of title 28 and any appeal shall lie to
the Supreme Court. The court shall retain jurisdiction of any
action pursuant to this subsection for five years after judgment
and shall reopen the action upon motion of the Attorney General
alleging that a test or device has been used for the purpose or
with the effect of denying or abridging the right to vote on
account of race or color, or in contravention of the guarantees set
forth in subsection (f)(2) of this section."
"If the Attorney General determines that he has no reason to
believe that any such test or device has been used during the
seventeen years preceding the filing of an action under the first
sentence of this subsection for the purpose or with the effect of
denying or abridging the right to vote on account of race or color,
or in contravention of the guarantees set forth in subsection
(f)(2) of this section, he shall consent to the entry of such
judgment."
"If the Attorney General determines that he has no reason to
believe that any such test or device has been used during the ten
years preceding the filing of an action under the second sentence
of this subsection for the purpose or with the effect of denying or
abridging the right to vote on account of race or color, or in
contravention of the guarantees set forth in subsection (f)(2) of
this section, he shall consent to the entry of such judgment."
[
Footnote 3]
In its entirety, § 4(b), as set forth in 42 U.S.C. § 1973b(b),
provides:
"The provisions of subsection (a) of this section shall apply in
any State or in any political subdivision of a State which (1) the
Attorney General determines maintained on November 1, 1964, any
test or device, and with respect to which (2) the Director of the
Census determines that less than 50 per centum of the persons of
voting age residing therein were registered on November 1, 1964, or
that less than 50 per centum of such persons voted in the
presidential election of November 1964. On and after August 6,
1970, in addition to any State or political subdivision of a State
determined to be subject to subsection (a) of this section pursuant
to the previous sentence, the provisions of subsection (a) of this
section shall apply in any State or any political subdivision of a
State which (i) the Attorney General determines maintained on
November 1, 1968, any test or device, and with respect to which
(ii) the Director of the Census determines that less than 50 per
centum of the persons of voting age residing therein were
registered on November 1, 1968, or that less than 50 per centum of
such persons voted in the presidential election of November 1968.
On and after August 6, 1975, in addition to any State or political
subdivision of a State determined to be subject to subsection (a)
of this section pursuant to the previous two sentences, the
provisions of subsection (a) of this section shall apply in any
State or any political subdivision of a State which (i) the
Attorney General determines maintained on November 1, 1972, any
test or device, and with respect to which (ii) the Director of the
Census determines that less than 50 per centum of the citizens of
voting age were registered on November 1, 1972, or that less than
50 per centum of such persons voted in the Presidential election of
November 1972."
"A determination or certification of the Attorney General or of
the Director of the Census under this section or under section
1973d or 1973k of this title shall not be reviewable in any court
and shall be effective upon publication in the Federal
Register."
[
Footnote 4]
Section 4(c) of the Act, as set forth in 42 U.S.C. § 1973b(c),
provides:
"The phrase 'test or device' shall mean 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."
[
Footnote 5]
Section 14(c)(2) of the Act, as set forth in 42 U.S.C. §
19731(c)(2), provides:
"The term 'political 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."
[
Footnote 6]
We also reject the appellants' argument that the majority vote,
runoff election, and numbered posts provisions of the city's
charter have already been precleared by the Attorney General
because, in 1968, the State of Georgia submitted, and the Attorney
General precleared, a comprehensive Municipal Election Code that is
now Title 34A of the Code of Georgia. Both the relevant regulation,
28 CFR § 51.10 (1979), and the decisions of this Court require that
the jurisdiction,
"in some unambiguous and recordable manner, submit any
legislation or regulation in question directly to the Attorney
General with a request for his consideration pursuant to the
Act,"
Allen v. State Board of Elections, 393 U.
S. 544,
393 U. S. 571
(1969), and that the Attorney General be afforded an adequate
opportunity to determine the purpose of the electoral changes and
whether they will adversely affect minority voting in that
jurisdiction,
see United States v. Board of Commissioners of
Sheffield, Ala., 435 U. S. 110,
435 U. S.
137-138 (1978). Under this standard, the State's 1968
submission cannot be viewed as a submission of the city's 1966
electoral changes, for, as the District Court noted, the State's
submission informed the Attorney General only of "its decision to
defer to local charters and ordinances regarding majority voting,
runoff elections, and numbered posts," and
"did not . . . submit in an 'unambiguous and recordable manner'
all municipal charter provisions, as written in 1968 or as amended
thereafter, regarding these issues."
472 F.
Supp. 221, 233 (DC 1979).
[
Footnote 7]
See n 1,
supra.
[
Footnote 8]
This regulation provides:
"When the Attorney General objects to a submitted change
affecting voting, and the submitting authority seeking
reconsideration of the objection brings additional information to
the attention of the Attorney General, the Attorney General shall
decide within 60 days of receipt of a request for reconsideration
(provided that he shall have at least 15 days following a
conference held at the submitting authority's request) whether to
withdraw or to continue his objection."
[
Footnote 9]
Because of our resolution of this issue, we need not address the
Government's contention that the 60-day period provided by 28 CFR §
51.3(d) is permissive, rather than mandatory.
[
Footnote 10]
The Amendment provides
"Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of
servitude."
"Section 2. The Congress shall have power to enforce this
article by appropriate legislation."
[
Footnote 11]
For purposes of this case, it is unnecessary to examine the
various approaches expressed by the Members of the Court in
City of Mobile v. Bolden, ante, p.
446 U. S. 55,
decided this day.
[
Footnote 12]
Section 5 of the Fourteenth Amendment provides that "[t]he
Congress shall have power to enforce, by appropriate legislation,
the provisions of this article."
[
Footnote 13]
There was no opinion for the Court in this case. Mr. Justice
Douglas expressed the view that the legislation in question was
authorized under § 5 of the Fourteenth Amendment. 400 U.S. at
400 U. S.
144-147. The other eight Members of the Court believed
that the Congress had permissibly acted within the authority
provided it by § 2 of the Fifteenth Amendment. 400 U.S. at
400 U. S.
132-133 (opinion of Black, J.);
id. at
400 U. S. 216
(opinion of Harlan, J.);
id. at
400 U. S.
232-234 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.);
id. at
400 U. S. 283
(opinion of STEWART, J., joined by BURGER, C.J., and BLACKMUN,
J.).
[
Footnote 14]
See South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 335,
and n. 47 (1966) (citing H.R.Rep. No. 439, 89th Cong., 1st Sess.,
10-11 (1965); S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 8,
12 (1965)).
[
Footnote 15]
Indeed,
Fitzpatrick v. Bitzer, 427 U.
S. 445 (1976), strongly suggested this result by citing
South Carolina v. Katzenbach, 383 U.
S. 301 (1966), as one of several cases sanctioning
"intrusions by Congress, acting under the Civil War Amendments,
into the judicial, executive, and legislative spheres of autonomy
previously reserved to the States. The legislation considered in
each case was grounded on the expansion of Congress' powers -- with
the corresponding diminution of state sovereignty -- found to be
intended by the Framers and made part of the Constitution upon the
States' ratification of those Amendments, a phenomenon aptly
described as a 'carv[ing] out' in
Ex parte
Virginia, [
100 U.S.
339,
100 U. S. 346 (1880)]."
Fitzpatrick v. Bitzer, supra at
427 U. S.
455-456.
[
Footnote 16]
See also Katzenbach v. Morgan, 384 U.
S. 641,
384 U. S.
646-647 (1966).
[
Footnote 17]
We do not reach the merits of the appellants' argument that the
Act violates the Guarantee Clause, Art. IV, § 4, since that issue
is not justiciable.
See, e.g., Baker v. Carr, 369 U.
S. 186 (1962).
[
Footnote 18]
Under § 5, the city bears the burden of proving lack of
discriminatory purpose and effect.
Beer v. United States,
425 U. S. 130,
425 U. S.
140-141 (1976);
Georgia v. United States,
411 U. S. 526,
411 U. S. 538
(1973);
South Carolina v. Katzenbach, 383 U.S. at
383 U. S.
335.
[
Footnote 19]
Single-shot voting has been described as follows:
"Consider [a] town of 600 whites and 400 blacks with an at-large
election to choose four council members. Each voter is able to cast
four votes. Suppose there are eight white candidates, with the
votes of the whites split among them approximately equally, and one
black candidate, with all the blacks voting for him and no one
else. The result is that each white candidate receives about 300
votes and the black candidate receives 400 votes. The black has
probably won a seat. This technique is called single-shot voting.
Single-shot voting enables a minority group to win some at-large
seats if it concentrates its vote behind a limited number of
candidates and if the vote of the majority is divided among a
number of candidates."
U.S. Commission on Civil Rights, The Voting Rights Act: Ten
Years After, pp. 206-207 (1975).
[
Footnote 20]
The District Court found that Rome's Negro citizens believed
that a Negro will never be elected as long as the city's present
electoral system remains in effect. 472 F. Supp. at 226. Only four
Negroes have ever sought elective office in Rome, and none of them
was elected. The campaign of the Reverend Clyde Hill, who made the
strongest showing of the four, indicates both the presence of
racial bloc voting in the city and the dilutive effect of the
majority vote/runoff election scheme adopted in 1966. The city's
elections were operated under that scheme when Rev. Hill ran for
the Board of Education in 1970. With strong support from the Negro
community, Rev. Hill ran against three white opponents and received
921 votes in the general election, while his opponents received
909, 407, and 143 votes, respectively. Rev. Hill, then, would have
been elected under the pre-1966 plurality-win voting scheme. Under
the majority-win/runoff election provisions adopted in 1966,
however, a runoff election was held, and the white candidate who
was the runner-up in the general election defeated Rev. Hill by a
vote of 1409-1142.
[
Footnote 21]
In so holding, the District Court relied on this analysis by the
United States Commission on Civil Rights:
"'There are a number of voting rules which have the effect of
frustrating single-shot voting. . . . [I]nstead of having one race
for four positions, there could be four races, each for only one
position. Thus for post no. 1, there might be one black candidate
and one white, with the white winning. The situation would be the
same for each post or seat -- a black candidate would always face a
white in a head-to-head contest, and would not be able to win.
There would be no opportunity for single-shot voting. A black still
might win if there were more than one white candidate for a post,
but this possibility would be eliminated if there was also a
majority requirement.'"
"'[Second,] each council member might be required to live in a
separate district, but with voting still at large. This -- just
like numbered posts -- separates one contest into a number of
individual contests.'"
"'[Third,] the terms of council members might be staggered. If
each member has a 4-year term and one member is elected each year,
then the opportunity for single-shot voting will never arise.'"
472 F. Supp. at 244, n. 95 (quoting U.S. Commission on Civil
Rights,
supra, n. 19, at 207-208) .
[
Footnote 22]
In
City of Richmond v. United States, 422 U.
S. 358 (1975), and
City of Petersburg v. United
States, 354 F.
Supp. 1021 (DC 1972),
summarily aff'd, 410 U.S. 962
(1973), evidence of the racial composition of the general
population was used to assess the impact of annexations on the
importance of the Negro vote in the community. This information,
when coupled with data on the racial composition of the community's
voting-age population, provides more probative evidence in such
cases than does voter registration data, which may perpetuate the
effects of prior discrimination in the registration of voters,
Ely v. Klahr, 403 U. S. 108,
403 U. S. 115,
n. 7 (1971);
Burns v. Richardson, 384 U. S.
73,
384 U. S. 92-93
(1966), or reflect a belief among the Negro population that it
cannot elect a candidate of its choice,
cf. n 20,
supra. Current voting-age
population data are probative, because they indicate the electoral
potential of the minority community.
MR. JUSTICE BLACKMUN, concurring.
I join the Court's opinion, but write separately to state my
understanding of the effect of the holding in Part
446 U.
S. The Court there affirms, as not clearly erroneous,
the District Court's determination that the city of Rome failed to
meet its burden of disproving that the 13 disputed annexations had
a discriminatory effect. That issue, for me, is close, but I accept
the District Court's ruling. The holding, however,
Page 446 U. S. 188
does seem to have the anomalous result of leaving the voters
residing in those annexed areas within the jurisdiction of Rome's
Board of Education, but outside he jurisdiction of its City
Commission.
* As the appellees
point out, however, Brief for Appellees 40-42, affirmance of the
District Court's holding does not preclude the city from altering
this anomaly.
It seems significant to me that the District Court adopted the
remedial device of conditioning its approval of the annexations on
Rome's abandonment of the residency requirement for City Commission
elections. It thus denied the city's motion for approval of the
annexations "without prejudice to renewal . . . upon the
undertaking of suitable action consistent with the views expressed
herein."
472 F.
Supp. 221, 249 (DC 1979). This remedial device, conditioning
the approval of annexations on the elimination of preexisting
discriminatory aspects of a city's electoral system, was developed
in
City of Petersburg v. United States, 354 F.
Supp. 1021 (DC 1972),
summarily aff'd, 410 U.S. 962
(1973), and expressly approved by this Court in
City of
Richmond v. United States, 422 U. S. 358,
422 U. S.
369-371 (1975).
I entertain some doubt about the District Court's apparent
conclusion that the residency requirement for Commission elections,
standing alone, would render the post-annexation electoral system
of Rome one that did not "fairly recogniz[e] the minority's
political potential," within the meaning of City of Richmond.
Id. at
422 U. S. 378.
The discriminatory effect of a residency requirement in an at-large
election system results from its necessary separation of one
contest into a number of individual contests, thereby frustrating
minority efforts to utilize effectively single-shot voting.
See
ante at
446 U. S. 185,
n. 21.
Page 446 U. S. 189
And in a city the size of Rome, one might reasonably conclude
that a requirement that one Commission member reside in each of
nine wards would have such an effect. The District Court failed to
analyze, however, the impact of the Attorney General's preclearance
of Rome's reduction of the number of wards in the city from nine to
three. The potential for effective single-shot voting would not be
frustrated by a requirement that three commissioners be elected
from each of three wards, so long as candidates were not required
to run for a particular "numbered post" within each ward. Given the
Attorney General's preclearance of the reduction of the number of
wards from nine to three, the latter requirement is one that the
District Court should have considered in determining whether the
presence of a residency requirement would necessarily lead to the
conclusion that Rome's post-annexation electoral system is one that
does not fairly recognize the minority's political potential.
I do not dissent from the affirmance of the District Court's
holding with respect to the annexations, however, because the
appellees have conceded that Rome need not abandon its residency
requirement in order to keep the annexed areas within the
jurisdiction of the City Commission. Appellees state:
"If the City wished to retain both a residency requirement and
at-large elections, . . . it could couple its pre-1966 procedures
with its subsequent shift to a system of electing three
commissioners from each of three wards. (The Attorney General had
not objected to the change from nine wards to three larger wards.)
When candidates are running concurrently for three unnumbered
positions in each of the three wards, without a majority vote
requirement, there can be no head-to-head contest, and single-shot
voting by black voters would give them a chance to elect the
candidate they supported."
Brief for Appellees 41-42.
Page 446 U. S. 190
Thus, on the understanding that the Attorney General would not
object to the District Court's approval of the annexations insofar
as they expand the jurisdiction of the City Commission, if the city
either eliminates the residency requirement and returns to a nine
ward system, or retains the residency requirement and the
three-ward system that has been in effect since 1966, I join in
Part
446 U. S.
* The Attorney General, in response to the city's motion for
reconsideration of its submissions, agreed to preclear the 13
annexations for purposes of Board of Education elections. That
decision was based solely on the fact that there was no residency
requirement for Board of Education elections under Rome's pre-1966
electoral rules.
See ante at
446 U. S. 160,
446 U. S.
162.
MR. JUSTICE STEVENS, concurring.
Although I join the Court's opinion, the dissenting opinions
prompt me to emphasize two points that are crucial to my analysis
of the case; both concern the state-wide nature of the remedy
Congress authorized when it enacted the Voting Rights Act of 1965.
The critical questions are: (1) whether, as a statutory matter,
Congress has prescribed a state-wide remedy that denies local
political units within a covered State the right to "bail out"
separately; and (2) if so, whether, as a constitutional matter,
such state-wide relief exceeds the enforcement powers of Congress.
If, as I believe, Congress could properly impose a state-wide
remedy, and in fact did so in the Voting Rights Act, then the fact
that the city of Rome has been innocent of any wrongdoing for the
last 17 years is irrelevant; indeed, we may assume that there has
never been any racial discrimination practiced in the city of Rome.
If racially discriminatory voting practices elsewhere in the State
of Georgia were sufficiently pervasive to justify the state-wide
remedy Congress prescribed, that remedy may be applied to each and
every political unit within the State, including the city of
Rome.
I
Section 5 of the Voting Rights Act imposes certain restrictions
on covered States and their political subdivisions, as well as on
political subdivisions in noncovered States that have been
separately designated as covered by the Attorney General pursuant
to § 4(b) of the Act. Section 4(a) of the Act
Page 446 U. S. 191
permits both States and separately designated political
subdivisions in noncovered States to bail out of § 5's restrictions
by demonstrating that they have not engaged in racially
discriminatory voting practices for a period of 17 years. In
United States v. Board of Commissioners of Sheffield,
Ala., 435 U. S. 110, the
Court construed the word "State" as used in §§ 4(a) and 5 to
include all political units within a State, even though they did
not satisfy the statutory definition of a "political subdivision,"
[
Footnote 2/1] and even though that
definition had been added to the statute for the express purpose of
limiting coverage. [
Footnote
2/2]
My opinion that the
Sheffield Court's construction of
the Act was erroneous does not qualify the legal consequences of
that holding.
See Dougherty County Board of Education v.
White, 439 U. S. 32,
439 U. S. 47
(STEVENS, J., concurring). [
Footnote
2/3] Nor does it prevent me from joining the Court's holding
today that a political unit within a covered State is not entitled
to bail out under § 4(a). [
Footnote
2/4] For both the plain language of the statute
Page 446 U. S. 192
and its legislative history unambiguously indicate that only
covered States and separately designated political subdivisions in
noncovered States are entitled to take advantage of that provision.
See § 4(a) and H.R.Rep. No. 439, 89th Cong., 1st Sess., 14
(1965), quoted
ante at
446 U. S. 169.
The political subdivisions of a covered State, while subject to §
5's preclearance requirements, are not entitled to bail out in a
piecemeal fashion; rather, they can only be relieved of their
preclearance obligations if the entire State meets the conditions
for a bailout.
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. Moreover, even without the
Sheffield decision, it would be illogical to deny separate
bailout relief to larger political units such as counties -- which
are clearly "political subdivisions" as that term is defined in §
14(c)(2) -- and to grant it to smaller units such as municipalities
and school boards.
II
The second question is whether Congress has the power to
prescribe a state-wide remedy for discriminatory voting
practices
Page 446 U. S. 193
if it does not allow political units that can prove themselves
innocent of discrimination to bail out of the statute's coverage.
In
446 U. S. the
Court explains why Congress, under the authority of § 2 of the
Fifteenth Amendment, may prohibit voting practices that have a
discriminatory effect in instances in which there is ample proof of
a longstanding tradition of purposeful discrimination. I think it
is equally clear that remedies for discriminatory practices that
were widespread within a State may be applied to every governmental
unit within the State, even though some of those local units may
have never engaged in purposeful discrimination themselves.
[
Footnote 2/5] In short, Congress
has the constitutional power to regulate voting practices in Rome,
so long as it has the power to regulate such practices in the
entire State of Georgia. Since there is no claim that the entire
State is entitled to relief from the federal restrictions, Rome's
separate claim must fail.
I therefore join the Court's opinion.
[
Footnote 2/1]
Section 14(c)(2) of the Act, as set forth in 42 U.S.C. §
19731(c)(2), provides:
"The term 'political 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."
[
Footnote 2/2]
See 435 U.S. at
435 U. S.
142-143 (STEVENS, J., dissenting) .
[
Footnote 2/3]
In any event, the city of Rome may be subject to § 5 even under
the reasoning of my dissent in
Sheffield. As noted above,
political subdivisions (
i.e., counties and other
subdivisions that register voters) in covered States are clearly
subject to the restrictions of § 5. In this case, the city of Rome
registered voters from 1964 to 1969, when the responsibility was
transferred to Floyd County,
see Stipulation No. 5, App.
58. Thus, from 1965 to 1969, the city was clearly covered by the
Act. Because it did not preclear the transfer of voting
registration to the county,
ibid., it at least arguably
remains a "political subdivision" for purposes of both §§ 4(a) and
5.
[
Footnote 2/4]
It should be noted that there is some tension between the
Court's language in
Sheffield and its statement today that
Sheffield did not "suggest that a municipality in a
covered State is itself a "state" for purposes of the § 4(a)
exemption procedure."
See ante at
446 U. S. 168.
Compare the latter statement with,
e.g., 435 U.S. at
435 U. S. 128,
where the Court stated that it was "wholly logical to interpret
state . . . with respect to which' § 4(a) is in effect as
referring to all political units within it." See also id.
at 435 U. S. 129,
n. 17:
"Our Brother STEVENS' dissent misconceives the basis for the
conclusion that § 5's terms are susceptible of an interpretation
under which
Sheffield is covered. We believe that the term
'state' can bear a meaning that includes all state actors within it
and that, given the textual interrelationship between § 5 and §
4(a) and the related purposes of the two provisions, such a reading
is a natural one."
To the extent that the Court has disavowed the foregoing
comments, I, of course, agree.
[
Footnote 2/5]
The same principle applies to a court's exercise of its remedial
powers. Thus, in an antitrust action, a remedy may be appropriate
even though it "curtail[s] the exercise of liberties that the
[defendant] might otherwise enjoy."
National Society of
Professional Engineers v. United States, 435 U.
S. 679,
435 U. S. 697.
Similarly, in constitutional cases, a court may impose a remedy
that requires more of the defendant than the Constitution itself
would require in the absence of any history of wrongdoing.
See,
e.g., Houchins v. KQED, Inc., 438 U. S.
1,
438 U. S. 40
(SEVENS, J., dissenting). The Court has recently applied this
principle to school desegregation cases, holding that a system-wide
remedy -- as opposed to a remedy concentrating on specific
instances of discrimination -- may be justified by a prior history
of pervasive, system-wide discrimination.
Columbus Board of
Education v. Penick, 443 U. S. 449;
Dayton Board of Education v. Brinkman, 443 U.
S. 526.
MR. JUSTICE POWELL, dissenting.
Two years ago, this Court held that the term "State" in § 4(a)
of the Voting Rights Act includes all political subdivisions that
control election processes, and that those subdivisions
Page 446 U. S. 194
are subject to the requirement in § 5 of the Act that federal
authorities preclear changes in voting procedures.
United
States v. Board of Commissioners of Sheffield, Ala.,
435 U. S. 110
(1978) (
Sheffield). Today the Court concludes that those
subdivisions are not within the term "State" when it comes to an
action to "bail out" from the preclearance requirement. Because
this decision not only conflicts with
Sheffield but also
raises grave questions as to the constitutionality of the Act, I
dissent.
I
Although I dissent on statutory and constitutional grounds, the
need to examine closely the Court's treatment of the Voting Rights
Act is sharply illustrated by the facts of this case. In Rome, a
city of about 30,000, approximately 15% of the registered voters
are black. This case involves two types of local action affecting
voting. First, in 1966, the Georgia Assembly established a majority
vote requirement for the City Commission and the Board of
Education, and reduced the number of election wards from nine to
three. Under the new arrangement, three city commissioners and two
members of the Board of Education are chosen from each ward for
numbered posts. [
Footnote 3/1]
Second, between 1964 and 1975, Rome completed 60 territorial
annexations, 13 of which are at issue in this case. The annexations
allegedly diluted the black vote in Rome by disproportionately
adding white voters. But 9 of the 13 relevant tracts of land were
completely unpopulated when they were taken over by the city. By
1978, the additional white voters in the annexed land had caused a
net decline of 1% in the black share of Rome's electorate.
[
Footnote 3/2]
Page 446 U. S. 195
There is substantial conflict between the ultimate ruling of the
three-judge District Court in this case and its findings of fact.
That court made a finding that Rome has not employed a "literacy
test or other device . . . as a prerequisite to voter registration
during the past seventeen years," and that, "in recent years, there
have been no other direct barriers to black voting in Rome."
472 F.
Supp. 221, 224, 225 (DC 1979). The court observed that white
officials have encouraged blacks to run for office, that there was
no evidence of obstacles to political candidacy by blacks, and that
a recent black contender for the Board of Education narrowly lost a
runoff with 45% of the vote (in a city where blacks make up only
15% of the voters). Although no black has been elected to the
municipal government, the court stated that the "white elected
officials of Rome . . . are responsive to the needs and interests
of the black community," and actively seek black political support.
[
Footnote 3/3]
Id. at 225.
Indeed, the District Court concluded that, in Rome, "the black
community, if it chooses to vote as a group, can probably determine
the outcome of many, if not most, contests."
Ibid.
Despite these findings, the District Court refused to approve
the annexations or the changes in voting procedures. The court held
that the city had not proved that the annexations and voting
changes did not reduce the political influence of Rome's blacks.
Id. at 245, 247. I have many reservations about that
conclusion. I note in particular that a black candidate running
under the challenged election rules commanded
Page 446 U. S. 196
three times the share of votes that the black community holds.
Moreover, nine of the annexations at issue were of vacant land, and
thus had no effect at all on voting when they occurred.
Nevertheless, I need not consider whether the District Court's
ruling on the evidence is clearly erroneous. Rather, I cite the
apparent factual inconsistencies of the holding below because they
highlight how far the courts, including this Court, have departed
from the original understanding of the Act's purpose and meaning.
[
Footnote 3/4] Against this
background, I address the substantive questions posed by this
case.
II
Under § 4(a) of the Voting Rights Act, a State or political
subdivision can attempt to end its preclearance obligations through
a declaratory judgment action (or "bailout") in the District Court
for the District of Columbia. 42 U.S.C. § 1973b(a). Bailout must be
granted if the District Court finds that, in that jurisdiction, no
"test or device has been used during the seventeen years preceding
the filing of the action for the purpose or with the effect of
denying or abridging the right to vote on account of race or
color."
Ibid. The District Court expressly found that the
city of Rome meets this standard, and that blacks participate
actively in Rome's political life.
See supra at
446 U. S. 195.
These findings demonstrate that the city has satisfied both the
letter and the spirit of the bailout provision. Nevertheless, the
District Court held that, as long as Georgia is covered by § 5 of
the Act, the city of Rome may not alter any voting practice without
the prior approval of federal authorities. [
Footnote 3/5]
Page 446 U. S. 197
The Court today affirms the decision of the District Court, and
holds that no subdivision may bail out so long as its State remains
subject to preclearance. This conclusion can be reached only by
disregarding the terms of the statute as we have interpreted them
before. Section 4(a) makes bailout available to "such State or
subdivision," language that refers back to the provision's ban on
the use of literacy tests (i) "in any State" reached by § 4(b) of
the Act, or (ii) "in any political subdivision" which is covered
"as a separate unit." [
Footnote
3/6] Because the entire State of Georgia is covered under §
4(b), this case concerns the first category in that definition.
[
Footnote 3/7] Thus, the crucial
language here, as in
Sheffield, is § 4(a)'s prohibition of
tests or devices "in any State" covered under § 4(b).
Page 446 U. S. 198
The
Sheffield Court emphasized the territorial content
of this key phrase. The Court reasoned that, by referring to
discriminatory practices "in" a State, Congress extended the ban on
tests and devices to all political subdivisions with any control
over voting. 435 U.S. at
435 U. S. 120.
Since the same language in § 4(a) also defines the applicability of
§ 5, the Court continued, subdivisions must also be subject to
preclearance. Consequently, federal authorities now must review all
changes in local voting rules and regulations in States covered by
the Act. 435 U.S. at
435 U. S.
126-127.
The availability of a bailout action is defined by exactly the
same phrase that the Court interpreted in
Sheffield. In
the bailout context, however, the Court today finds that the
language does not reach political subdivisions. The Court thus
construes the identical words in § 4(a) to have one meaning in one
situation and a wholly different sense when applied in another
context. Such a protean construction reduces the statute to
irrationality.
This irrationality is evident in the contrast between the rights
of localities, like Rome, that are in States covered by § 4(b), and
those of covered local governments that are located in States not
covered by the Act. Twenty-eight subdivisions in the latter group
have bailed out from the preclearance obligation in six separate
actions. [
Footnote 3/8] Yet the
only
Page 446 U. S. 199
difference between those governments and the city of Rome is
that the State in which Rome is located is itself subject to the
Voting Rights Act. There is no reasoned justification for allowing
a subdivision in North Carolina to bail out, but denying a similar
privilege to a subdivision in Georgia, when both have been found to
be in full compliance with the bailout criteria.
The District Court acknowledged, and the Court today does not
deny, the "abstract force" of this argument. The argument
nevertheless fails, according to the Court's opinion, for two
reasons: (i)
Sheffield "did not hold that cities such as
Rome are
political subdivisions'" or "States," but merely
subjected such entities to the preclearance requirement of § 5; and
(ii) congressional Reports accompanying the Voting Rights Act of
1965 state that bailout should not be available to a subdivision
located in a State covered by the Act. Ante at
446 U. S.
168-169. Neither reason supports the Court's decision.
That Sheffield did not identify cities like Rome as
"States" or "political subdivisions" as defined by the Act does not
answer the point that the construction of "State" in
Sheffield should control the availability of bailout. Both
in terms of logic and of fairness, if Rome must preclear, it must
also be free to bail out. Second, it is elementary that, where the
language of a statute is clear and unambiguous, there is no
occasion to look at its legislative history. We resort to
legislative materials only when the congressional mandate is
unclear on its face.
Page 446 U. S. 200
Ex parte Collett, 337 U. S. 55,
337 U. S. 61
(1949);
United States v. Oregon, 366 U.
S. 643,
366 U. S. 648
(1961). Although
"committee reports in particular are often a helpful guide to
the meaning of ambiguous statutory language, even they must be
disregarded if inconsistent with the plain language of the
statute."
Gooding v. United States, 416 U.
S. 430,
416 U. S. 468
(1974) (MARSHALL, J., dissenting).
After
Sheffield, there can be little dispute over the
meaning of "State" as used in § 4(a): it includes all political
subdivisions that exercise control over elections. [
Footnote 3/9] Accordingly, there is no basis for
the Court's reliance on congressional statements that are
inconsistent with the terms of the statute. If § 4(a) imposes the
burden of preclearance on Rome, the same section must also relieve
that burden when the city can demonstrate its compliance with the
Act's quite strict requirements for bailout.
III
There is, however, more involved here than incorrect
construction of the statute. The Court's interpretation of § 4(a)
renders the Voting Rights Act unconstitutional as applied to the
city of Rome. The preclearance requirement both intrudes on the
prerogatives of state and local governments and abridges the voting
rights of all citizens in States covered under the Act. Under § 2
of the Fifteenth Amendment, Congress may impose such constitutional
deprivations only if it is acting to remedy violations of voting
rights.
See South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S.
327-328 (1966);
Katzenbach v. Morgan,
384 U. S. 641,
384 U. S. 667
(1966) (Harlan, J., dissenting). In view of the District Court
finding that Rome has not denied or abridged the voting rights of
blacks, the
Page 446 U. S. 201
Fifteenth Amendment provides no authority for continuing those
deprivations until the entire State of Georgia satisfies the
bailout standards of 4(a). [
Footnote
3/10]
When this Court first sustained the Voting Rights Act of 1965,
it conceded that the legislation was "an uncommon exercise of
congressional power."
South Carolina v. Katzenbach, supra
at
383 U. S. 334.
The Court recognized that preclearance under the Act implicates
serious federalism concerns. 383 U.S. at
383 U. S.
324-327. As MR. JUSTICE STEVENS noted in
Sheffield, the statute's "encroachment on state
sovereignty is significant and undeniable." 435 U.S. at
435 U. S. 141
(dissenting opinion). [
Footnote
3/11] That encroachment is especially troubling because it
destroys local control of the means of self-government, one of the
central values of our polity. [
Footnote 3/12] Unless the federal structure
provides
Page 446 U. S. 202
some protection for a community's ordering of its own democratic
procedures, the right of each community to determine its own course
within the boundaries marked by the Constitution is at risk.
Preclearance also operates at an individual level to diminish the
voting rights of residents of covered areas. Federal review of
local voting practices reduces the influence that citizens have
over policies directly affecting them, and strips locally elected
officials of their autonomy to chart policy.
The Court, in
South Carolina v. Katzenbach, supra, did
not lightly approve these intrusions on federalism and individual
rights. It upheld the imposition of preclearance as a prophylactic
measure based on the remedial power of Congress to enforce the
Fifteenth Amendment. But the Court emphasized that preclearance,
like any remedial device, can be imposed only in response to some
harm. When Congress approved the Act, the Court observed, there
was
"reliable evidence of actual voting discrimination in a great
majority of the States and political subdivisions affected by the
new remedies of the Act."
383 U.S. at
383 U. S. 329.
Since the coverage formula in § 4(b) purported to identify
accurately those jurisdictions that had engaged in voting
discrimination, the imposition of preclearance was held to be
justified "at least in the absence of proof that [the state or
local government has] been free of substantial voting
discrimination in recent years." 383 U.S. at
383 U. S. 330.
[
Footnote 3/13]
Page 446 U. S. 203
The Court in
South Carolina v. Katzenbach emphasized,
however, that a government subjected to preclearance could be
relieved of federal oversight if voting discrimination, in fact,
did not continue or materialize during the prescribed period.
"Acknowledging the possibility of overbreadth, the Act provides
for termination of special statutory coverage at the behest of
States and political subdivisions in which the danger of
substantial voting discrimination has not materialized during the
preceding [statutorily defined period]."
Id. at
383 U. S. 331
Although this passage uses the term "overbreadth" in an unusual
sense, the point is clear. As long as the bailout option is
available, there is less cause for concern that the Voting Rights
Act may overreach congressional powers by imposing preclearance on
a nondiscriminating government. Without bailout, the problem of
constitutional authority for preclearance becomes acute.
The Court today decrees that the citizens of Rome will not have
direct control over their city's voting practices until the entire
State of Georgia can free itself from the Act's restrictions. Under
the current interpretation of the word "State" in § 4(a), Georgia
will have to establish not only that it has satisfied the standards
in § 4(a), but also that each and every one of its political
subdivisions meets those criteria. This outcome makes every city
and county in Georgia a hostage to the errors, or even the
deliberate intransigence, of a single subdivision. [
Footnote 3/14]
Page 446 U. S. 204
Since the statute was enacted, only one State has succeeded in
bailing out -- Alaska in 1966, and again in 1971. [
Footnote 3/15] That precedent holds out little or
no hope for more populous States such as Georgia. Demonstrating a
right to bailout in 1966 for Alaska's 272,000 people and 56
political subdivisions, or in 1971 for that State's 302,000 people
and 60 subdivisions, is a far cry from seeking bailout now on
behalf of Georgia's approximately 5 million people and 877 local
governments. [
Footnote 3/16]
Page 446 U. S. 205
Today's ruling therefore will seal off the constitutionally
necessary safety valve in the Voting Rights Act.
The preclearance requirement enforces a presumption against
voting changes by certain state and local governments. If that
presumption is restricted to those governments meeting § 4(b)'s
coverage criteria, and if the presumption can be rebutted by a
proper showing in a bailout suit, the Act may be seen, as the
South Carolina v. Katzenbach Court saw it, as action by
Congress at the limit of its authority under the Fifteenth
Amendment. But if governments like the City of Rome may not bail
out, the statute oversteps those limits. For these reasons, I would
reverse the judgment of the District Court. [
Footnote 3/17]
Page 446 U. S. 206
IV
If there were reason to believe that today's decision would
protect the voting rights of minorities in any way, perhaps this
case could be viewed as one where the Court's ends justify dubious
analytical means. But the District Court found, and no one denies,
that for at least 17 years, there has been no voting discrimination
by the city of Rome. Despite this record, the Court today continues
federal rule over the most local decisions made by this small city
in Georgia. Such an outcome must vitiate the incentive for any
local government in a State covered by the Act to meet diligently
the Act's requirements. Neither the Framers of the Fifteenth
Amendment nor the Congress that enacted the Voting Rights Act could
have intended that result.
[
Footnote 3/1]
As part of the package of revisions, the Assembly increased the
Board of Education from five to six members, eased voter
registration requirements, and shifted registration responsibility
to the county.
472 F.
Supp. 221, 224 (DC 1979).
[
Footnote 3/2]
The statistics on this question are not altogether satisfactory,
since the 1978 population of the annexed areas must be compared to
1975 voter registration totals. Given that 16.6% of the city's
voters were black in 1975, that percentage drops only to 15.6%
after adding the 823 white voters and 9 black voters who lived in
the annexed areas in 1978.
See Brief for Appellees 38, n.
26.
[
Footnote 3/3]
The District Court also noted that the city has "made an effort
to upgrade some black neighborhoods," has subsidized the transit
system which has a predominantly black ridership, and has hired a
number of blacks for skilled and supervisory positions in the
municipal government. 472 F. Supp. at 225.
[
Footnote 3/4]
The Court's opinion simply ignores the most relevant facts. In
so doing, the Court averts its eyes from the central paradox of
this case: even though Rome has met every criterion established by
the Voting Rights Act for protecting the political rights of
minorities, the Court holds that the city must remain subject to
preclearance.
[
Footnote 3/5]
Section 5 permits two methods of preclearance. A local
government may ask the District Court for the District of Columbia
for a ruling that the voting change is acceptable, or it may submit
the change to the Attorney General for him to accept or reject
within 60 days. 42 U.S.C. § 1973c. The administrative procedure is
used almost exclusively, since it takes less time.
[
Footnote 3/6]
Section 4(a), as set forth in 42 U.S.C. § 1973b(a), provides in
relevant part:
"To assure that the right of citizens of the United States to
vote is not denied or abridged on account of race or color, no
citizen shall be denied the right to vote in any Federal, State, or
local election because of his failure to comply with any test or
device
in any State with respect to which the determinations
have been made under the first two sentences of subsection (b) of
this section or in any political subdivision with respect to which
such determinations have been made as a separate unit, unless
the United States District Court for the District of Columbia in an
action for a declaratory judgment brought by such State or
subdivision against the United States has determined that no such
test or device has been used during the seventeen years preceding
the filing of the action for the purpose or with the effect of
denying or abridging the right to vote on account of race or color.
. . ."
(Emphasis supplied.)
[
Footnote 3/7]
Under § 4(b), a State or political subdivision is subject to the
Act if the Director of the Census finds that less than 50% of the
eligible population voted in the last Presidential election, and
the Attorney General determines that a discriminatory "test or
device" was maintained in the jurisdiction in 1964. Those
determinations, which are unreviewable, trigger the application of
the preclearance requirement of § 5. 42 U.S.C. §§ 1973b(b),
1973c.
[
Footnote 3/8]
Counties of Choctaw and McCurtain, Okla. v. United
States, C.A. No. 76-1250 (DC May 12, 1978) (two counties);
New Mexico, Curry, McKinley and Otero Counties v. United
States, C.A. No. 76-0067 (DC July 30, 1976) (three counties);
Maine v. United States, C.A. No. 75-2125 (DC Sept. 17,
1976) (13 municipalities and 5 "plantations");
Wake County,
N.C. v. United States, C.A. No. 1198-66 (DC Jan. 23, 1967)
(one county);
Elmore County, Idaho v. United States, C.A.
No. 320-66 (DC Sept. 22, 1966) (one county);
Apache, Navaho and
Coconino Counties, Ariz. v. United States, 256 F.
Supp. 903 (DC 1966) (three counties). Three counties in New
York City bailed out in 1972,
New York v. United States,
C.A. No. 2419-71 (DC Apr. 13, 1972), but the bailout order was
rescinded two years later after a District Court found that the
State had conducted elections in English only, thereby violating
the Act.
New York v. United States, C.A. No. 2419-71 (DC
Jan. 18, 1974) (referring to
Torres v. Sachs, C.A. No.
73-3921 (CES) (SDNY Sept. 27, 1973)),
summarily aff'd, 419
U.S. 888 (1974).
Bailout was denied in one action involving a local subdivision,
Gaston County, N.C. v. United States, 395 U.
S. 285 (1969), and three were dismissed by stipulation
of the parties,
Board of Commissioners, El Paso County, Colo.
v. United States, C.A. No. 77-0185 (DC No. 8, 1977);
Yuba
County, Cal. v. United States, C.A. No. 75-2170 (DC May 25,
1976);
Nash County, N.C. v. United States, C.A. No.
1702-66 (DC Sept. 26, 1969).
[
Footnote 3/9]
This construction applies to political subdivisions defined by §
14(c)(2) of the Act, 42 U.S.C. § 19731(c)(2), as well as to
governments like Rome that do not fall within that statutory
definition. Thus, under
Sheffield's statutory
interpretation, all subdivisions in States covered by the Act
should be entitled to bail out. The constitutional analysis of
446 U. S.
infra, reaches the same conclusion.
[
Footnote 3/10]
In view of the narrower focus of my approach to the statutory
and constitutional issues raised in this case, I do not reach the
broad analysis offered by MR. JUSTICE REHNQUIST's dissent.
[
Footnote 3/11]
Other Justices have expressed the same concern.
E.g., South
Carolina v. Katzenbach, 383 U. S. 301,
383 U. S. 358
(1966) (Black, J., concurring and dissenting);
Allen v. State
Board of Elections, 393 U. S. 544,
393 U. S. 586,
and n. 4 (1969) (Harlan, J., concurring in part and dissenting in
part);
see also Georgia v. United States, 411 U.
S. 526,
411 U. S. 545
(1973) (POWELL, J., dissenting).
In
National League of Cities v. Usery, 426 U.
S. 833,
426 U. S. 856,
n. 20 (1976), the Court noted that, because political subdivisions
"derive their authority and power from their respective States,"
their integrity, like that of the States, is protected by the
principles of federalism.
[
Footnote 3/12]
The federal system allocates primary control over elections to
state and local officials.
Oregon v Mitchell, 400 U.
S. 112,
400 U. S. 125
(1970) (opinion of Black, J.);
id. at
400 U. S. 201
(opinion of Harlan, J.);
Lassiter v. Northampton County Board
of Elections, 360 U. S. 45,
360 U. S. 50
(1959).
This Court has emphasized the importance in a democratic society
of preserving local control of local matters.
See Milliken v.
Bradley, 418 U. S. 717,
418 U. S. 744
(1974) (federal court control of local schools "would deprive the
people of control of schools through their elected
representatives");
James v. Valtierra, 402 U.
S. 137,
402 U. S. 143
(1971) (local referendum on public housing project "ensures that
all the people of a community will have a voice in a decision which
may lead to large expenditures . . . and to lower tax revenues").
Preservation of local control, naturally enough, involves
protecting the integrity of state and local governments.
See
National League of Cities v. Usery, supra at
426 U. S. 855;
Coyle v. Oklahoma, 221 U. S. 559,
221 U. S. 565
(1911).
[
Footnote 3/13]
The Court found important confirmation of the rationality of the
coverage formula in the fact that there was no evidence of "recent
racial discrimination involving tests and devices" in States or
subdivisions exempted from preclearance. 383 U.S. at
383 U. S.
331.
This Court took a similar approach when it affirmed the
temporary suspension of all literacy tests by Congress in 1970.
Oregon v. Mitchell, supra. The entire Court agreed with
Mr. Justice Black's view that the congressional action was
justified by the "long history of the discriminatory use of
literacy tests to disfranchise voters on account of their race."
400 U.S. at
400 U. S. 132.
See id. at
400 U. S. 146
(opinion of Douglas, J.);
id. at
400 U. S. 216,
and n. 94 (opinion of Harlan, J.);
id. at
400 U. S.
234-235 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.);
id. at
400 U. S. 284
(opinion of STEWART, J.). That history supported temporary
suspension of those few literacy tests still in use,
see
id. at
400 U. S. 147
(opinion of Douglas, J.), without providing any bailout-like
option. In contrast, preclearance involves a broad restraint on all
state and local voting practices, regardless of whether they have
been, or even could be, used to discriminate.
[
Footnote 3/14]
Tr. of Oral Arg. 38. The Court's position dictates this
eccentric result by insisting that subdivisions in covered States
can be relieved of preclearance only when their State bails out. In
my view, this also would cast serious doubt on the Act's
constitutionality as applied to any State which could not bail out
due to the failings of a single subdivision. A rational approach
would treat the state and local governments independently for
purposes of bailout. If subdivisions in Georgia were free to seek
bailout on their own, then a bailout action by the State could
properly focus on the State's voting policies. Then, if Georgia
were entitled to bail out, preclearance would continue to apply to
subdivisions that, by their own noncompliance, met the coverage
criteria of § 4(b). Of course, the situation would be different if
the State had contributed, overtly or covertly, to the
subdivision's failure to comply.
[
Footnote 3/15]
Alaska v. United States, C.A. No. 101-66 (DC Aug. 17,
1966);
Alaska v. United States, C.A. No. 2122-71 (DC Mar.
10, 1972). Alaska's 1971 suit was prompted by recoverage of the
State under the Act in the 1970 extension. The 1975 extension of
the Act also reestablished coverage of Alaska, which filed but
abandoned yet another bailout suit.
Alaska v. United
States, C.A. No. 78 0484 (DC May 10, 1979) (stipulated
dismissal of action).
One other State -- Virginia -- has attempted to bail out under §
4(a).
Virginia v. United States, 386 F.
Supp. 1319 (DC 1974),
summarily aff'd, 420 U.
S. 901 (1975). The court held that Virginia did not
satisfy § 4(a) because a state literacy test administered in some
localities between 1963 and 1965 was discriminatory in the context
of the inferior education offered to Virginia blacks in certain
rural counties before that period.
[
Footnote 3/16]
The Solicitor General states that Georgia has 159 counties, 530
municipalities, and 188 other subdivisions that now must preclear
every voting change, no matter how irrelevant the change might be
to discrimination in voting. App. to Brief for Appellees 1a.
[
Footnote 3/17]
On a practical level, the District Court argued that, since more
than 7,000 subdivisions currently are required to preclear voting
changes, bailout suits by a small percentage of those subdivisions
would swamp that court. 472 F. Supp. at 231-232. In view of the
acknowledged difficulties that confront a local government in
seeking bailout in the District of Columbia, it is by no means
self-evident that the "floodgates" perceived by the court would
ever open. Such suits, involving substantial expense, as well as
uncertainty, would not likely be initiated unless there were a
substantial likelihood of success. Moreover, the court's argument
ignores the procedures of a bailout suit. Section 4(a) directs the
Attorney General not to contest bailout if he finds that the state
or local government has not used a discriminatory test or device
over the preceding 17 years. 42 U.S.C. § 1973b(a). In fact, the
Attorney General consented to bailout in the nine actions under §
4(a) that have succeeded, while only three bailout suits have gone
to trial.
See nn.
446
U.S. 156fn3/8|>8 and
446
U.S. 156fn3/15|>15,
supra. Thus, the Department of
Justice, not the courts, would shoulder much of the added burden
that might arise from recognizing a bailout right for governments
like the city of Rome. That burden could hardly be more onerous
than the Attorney General's present responsibility for preclearing
all voting changes in 7,000 subdivisions. In the first six months
of 1979, over 3,200 such voting changes were submitted to the
Attorney General, a rate of more than 25 per working day. Letter to
Joseph W. Dorn from Drew S. Days III, Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice (Aug. 3, 1979),
reprinted in App. to Brief for Appellants 1c.
These astonishing figures compare unfavorably with those cited
by MR. JUSTICE STEVENS in his
Sheffield dissent, where he
questioned the efficacy of the Attorney General's review of
preclearance requests that then were arriving at the rate of only
four a day.
United States v. Board of Commissioners of
Sheffield, Ala., 435 U. S. 110,
435 U. S.
147-148, and nn. 8, 10 (1978).
See Berry v.
Doles, 438 U. S. 190,
438 U. S.
200-201 (1978) (POWELL, J., concurring in judgment). It
hardly need be added that no senior officer in the Justice
Department -- much less the Attorney General -- could make a
thoughtful, personal judgment on an average of 25 preclearance
petitions per day. Thus, important decisions made on a democratic
basis in covered subdivisions and States are finally judged by
unidentifiable employees of the federal bureaucracy, usually
without anything resembling an evidentiary hearing.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART joins,
dissenting.
We have only today held that the city of Mobile does not violate
the Constitution by maintaining an at-large system of electing city
officials unless voters can prove that system is a product of
purposeful discrimination.
City of Mobile v. Bolden, ante
p.
446 U. S. 55. This
result is reached even though the black residents of Mobile have
demonstrated that racial "bloc" voting has prevented them from
electing a black representative to the city government. The Court
correctly concluded that a city has no obligation under the
Constitution
Page 446 U. S. 207
to structure its representative system in a manner that
maximizes the black community's ability to elect a black
representative. Yet, in the instant case, the city of Rome is
prevented from instituting precisely the type of structural changes
which the Court says Mobile may maintain consistently with the
Civil War Amendments, so long as their purpose be legitimate,
because Congress has prohibited these changes under the Voting
Rights Act as an exercise of its "enforcement" power conferred by
those Amendments.
It is not necessary to hold that Congress is limited to merely
providing a forum in which aggrieved plaintiffs may assert rights
under the Civil War Amendments in order to disagree with the
Court's decision permitting Congress to straitjacket the city of
Rome in this manner. Under § 5 of the Fourteenth Amendment and § 2
of the Fifteenth Amendment, Congress is granted only the power to
"enforce" by "appropriate" legislation the limitations on state
action embodied in those Amendments. While the presumption of
constitutionality is due to any act of a coordinate branch of the
Federal Government or of one of the States, it is this Court which
is ultimately responsible for deciding challenges to the exercise
of power by those entities.
Marbury v.
Madison, 1 Cranch 137 (1803);
United States v.
Nixon, 418 U. S. 683
(1974). Today's decision is nothing less than a total abdication of
that authority, rather than an exercise of the deference due to a
coordinate branch of the government.
I
The facts of this case readily demonstrate the fallacy
underlying the Court's determination that congressional prohibition
of Rome's conduct can be characterized as enforcement of the
Fourteenth or Fifteenth Amendment. [
Footnote 4/1] The
Page 446 U. S. 208
three-judge District Court entered extensive findings of fact --
facts which are conspicuously absent from the Court's opinion. The
lower court found that Rome has not employed any discriminatory
barriers to black voter registration in the past 17 years. Nor has
the city employed any other barriers to black voting or black
candidacy. Indeed, the court found that white elected officials
have encouraged blacks to run for elective posts in Rome, and are
"responsive to the needs and interests of the black community." The
city has not discriminated against blacks in the provision of
services, and has made efforts to upgrade black neighborhoods.
It was also established that, although a black has never been
elected to political office in Rome, a black was appointed to fill
a vacancy in an elective post. White candidates vigorously pursue
the support of black voters. Several commissioners testified that
they spent proportionately more time campaigning in the black
community because they "needed that vote to win." The court
concluded that "blacks often hold the balance of power in Rome
elections."
Despite this political climate, the Attorney General refused to
approve a number of city annexations and various changes in the
electoral process. The city sought to require majority vote for
election to the City Commission and Board of Education; to create
numbered posts and staggered terms for those elections; and to
establish a ward residency requirement for Board of Education
elections. In addition, during the years
Page 446 U. S. 209
between 1964 and 1973, the city effected 60 annexations.
Appellees concede that none of the annexations was sought for
discriminatory purposes. All of the electoral changes and 13 of the
annexations were opposed by the Attorney General on the grounds
that their adoption would lessen the likelihood that blacks would
be successful in electing a black city official, assuming racial
bloc voting on the part of both whites and blacks. Each of the
changes was considered to be an impermissible "vote-dilution"
device.
Rome sought judicial relief, and the District Court found that
the city had met its burden of proving that these electoral changes
and annexations were not enacted with the purpose of discriminating
against blacks. The changes were nevertheless prohibited because of
their perceived disparate effect. [
Footnote 4/2]
II
The Court holds today that the city of Rome can constitutionally
be compelled to seek congressional approval for most of its
governmental changes even though it has not engaged in any
discrimination against blacks for at least 17 years. Moreover, the
Court also holds that federal approval can be constitutionally
denied even after the city has proved that the changes are not
purposefully discriminatory. While I agree with MR. JUSTICE
POWELL's conclusion that requiring localities to submit to
preclearance is a significant intrusion on local autonomy, it is an
even greater intrusion on that autonomy to deny preclearance
sought.
The facts of this case signal the necessity for this Court to
carefully scrutinize the alleged source of congressional power to
intrude so deeply in the governmental structure of the municipal
corporations created by some of the 50 States. Section 2 of the
Fifteenth Amendment and § 5 of the Fourteenth
Page 446 U. S. 210
provide that Congress shall have the power to "enforce" § 1 "by
appropriate legislation." Congressional power to prohibit the
electoral changes proposed by Rome is dependent upon the scope and
nature of that power. There are three theories of congressional
enforcement power relevant to this case. First, it is clear that,
if the proposed changes would violate the Constitution, Congress
could certainly prohibit their implementation. It has never been
seriously maintained, however, that Congress can do no more than
the judiciary to enforce the Amendments' commands. Thus, if the
electoral changes in issue do not violate the Constitution, as
judicially interpreted, it must be determined whether Congress
could nevertheless appropriately prohibit these changes under the
other two theories of congressional power. Under the second theory,
Congress can act remedially to enforce the judicially established
substantive prohibitions of the Amendments. If not properly
remedial, the exercise of this power could be sustained only if
this Court accepts the premise of the third theory that Congress
has the authority under its enforcement powers to determine,
without more, that electoral changes with a disparate impact on
race violate the Constitution, in which case Congress, by a
legislative Act, could effectively amend the Constitution.
I think it is apparent that neither of the first two theories
for sustaining the exercise of congressional power supports this
application of the Voting Rights Act. After our decision in
City of Mobile, there is little doubt that Rome has not
engaged in constitutionally prohibited conduct. [
Footnote 4/3] I also do not
Page 446 U. S. 211
believe that prohibition of these changes can genuinely be
characterized as a remedial exercise of congressional enforcement
powers. Thus, the result of the Court's holding is that Congress
effectively has the power to determine for itself that this conduct
violates the Constitution. This result violates previously well
established distinctions between the Judicial Branch and the
Legislative or Executive Branches of the Federal Government.
See United States v. Nixon, 418 U.
S. 683 (1974);
Marbury v.
Madison, 1 Cranch 137 (1803).
A
If the enforcement power is construed as a "remedial" grant of
authority, it is this Court's duty to ensure that a challenged
congressional Act does no more than "enforce" the limitations on
state power established in the Fourteenth and Fifteenth Amendments.
Marbury v. Madison. The Court has not resolved the
question of whether it is an appropriate exercise of remedial power
for Congress to prohibit local governments from instituting
structural changes in their government which, although not racially
motivated, will have the effect of decreasing the ability of a
black voting bloc to elect a black candidate.
This Court has found, as a matter of statutory interpretation,
that Congress intended to prohibit governmental changes on the
basis of no more than disparate impact under the Voting Rights Act.
These cases, however, have never directly presented the
constitutional questions implicated by the lower court finding in
this case that the city has engaged in no purposeful discrimination
in enacting these changes, or otherwise, for almost two decades.
See Beer v. United States, 425 U.
S. 130 (1976);
City of Richmond v. United
States, 422 U. S. 358
(1975);
Perkins v. Matthews, 400 U.
S. 379 (1971);
Fairley v. Patterson, decided
together with
Allen v. State Board of Elections,
393 U. S. 544
(1969). In none of these cases was the Court squarely presented
with a constitutional challenge to congressional power to prohibit
state electoral
Page 446 U. S. 212
practices after the locality has disproved the existence of any
purposeful discrimination. [
Footnote
4/4]
The cases in which this Court has actually examined the
constitutional questions relating to congress' exercise of its
powers to enforce the Fourteenth and Fifteenth Amendments also did
not purport to resolve this issue. [
Footnote 4/5] But the principles which can be distilled
from those precedents require the conclusion that the limitations
on state power at issue cannot be sustained as a remedial exercise
of power.
Page 446 U. S. 213
While the Fourteenth and Fifteenth Amendments prohibit only
purposeful discrimination, the decisions of this Court have
recognized that, in some circumstances, congressional prohibition
of state or local action which is not purposefully discriminatory
may nevertheless be appropriate remedial legislation under the
Civil War Amendments.
See Oregon v. Mitchell, 400 U.
S. 112 (1970);
Gaston County v. United States,
395 U. S. 285
(1969).
Those circumstances, however, are not without judicial limits.
These decisions indicate that congressional prohibition of some
conduct which may not itself violate the Constitution is
"appropriate" legislation "to enforce" the Civil War Amendments if
that prohibition is necessary to remedy prior constitutional
violations by the governmental unit, or if necessary to effectively
prevent purposeful discrimination by a governmental unit. In both
circumstances, Congress would still be legislating in response to
the incidence of state action violative of the Civil War
Amendments. These precedents are carefully formulated around a
historic tenet of the law that, in order to invoke a remedy, there
must be a wrong -- and, under a remedial construction of
congressional power to enforce the Fourteenth and Fifteenth
Amendments, that wrong must amount to a constitutional violation.
Only when the wrong is identified can the appropriateness of the
remedy be measured.
The Court today identifies the constitutional wrong which was
the object of this congressional exercise of power as purposeful
discrimination by local governments in structuring their political
processes in an effort to reduce black voting strength. The Court
goes on to hold that the prohibitions imposed in this case
represent an "appropriate" means of preventing such constitutional
violations. The Court does not rest this conclusion on any finding
that this prohibition is necessary to remedy any prior
discrimination by the locality. Rather, the Court reasons that
prohibition of changes discriminatory
Page 446 U. S. 214
in effect prevent the incidence of changes which are
discriminatory in purpose:
"Congress could rationally have concluded that, because
electoral changes by jurisdictions with a demonstrable history of
intentional racial discrimination in voting create the risk of
purposeful discrimination, it was proper to prohibit changes that
have a discriminatory impact."
Ante at
446 U. S. 177.
What the Court explicitly ignores is that, in this case, the city
has proved that these changes are not discriminatory in purpose.
Neither reason nor precedent supports the conclusion that here it
is "appropriate" for Congress to attempt to prevent purposeful
discrimination by prohibiting conduct which a locality proves is
not purposeful discrimination.
Congress had before it evidence that various governments were
enacting electoral changes and annexing territory to prevent the
participation of blacks in local government by measures other than
outright denial of the franchise. [
Footnote 4/6] Congress could, of course, remedy and
prevent such purposeful discrimination on the part of local
governments.
See Gomillion v. Lightfoot, 364 U.
S. 339,
364 U. S. 347
(1960). And given the difficulties of proving that an electoral
change or annexation has been undertaken for the purpose of
discriminating against blacks, Congress could properly conclude
that, as a remedial matter, it was necessary to place the burden of
proving lack of discriminatory purpose on the localities.
See
South Carolina v. Katzenbach, 383 U.
S. 301 (1966). But all of this does not support the
conclusion that Congress is acting remedially when it continues the
presumption of purposeful discrimination even after the locality
has disproved that presumption. Absent other circumstances, it
would be a topsy-turvy judicial system which held that electoral
changes
Page 446 U. S. 215
which have been affirmatively proved to be permissible under the
Constitution nonetheless violate the Constitution.
The precedent on which the Court relies simply does not support
its remedial characterization. Neither
Oregon v. Mitchell,
400 U. S. 112
(1970), nor
South Carolina v. Katzenbach, supra,
legitimizes the use of an irrebuttable presumption that
"vote-diluting" changes are motivated by a discriminatory animus.
The principal electoral practice in issue in those cases was the
use of literacy tests. Yet the Court simply fails to make any
inquiry as to whether the particular electoral practices in issue
here are encompassed by the "preventive" remedial rationale invoked
in
South Carolina and
Oregon. The rationale does
support congressional prohibition of some electoral practices, but
simply has no logical application to the "vote-dilution" devices in
issue.
In
Oregon, the Court sustained a nationwide prohibition
of literacy tests, thereby extending the more limited suspension
approved in South Carolina. By upholding this congressional
measure, the Court established that, under some circumstances, a
congressional remedy may be constitutionally overinclusive by
prohibiting some state action which might not be purposefully
discriminatory. That possibility does not justify the
overinclusiveness countenanced by the Court in this case, however.
Oregon by no means held that Congress could simply use
discriminatory effect as a proxy for discriminatory purpose, as the
Court seems to imply. Instead, the Court opinions identified the
factors which rendered this prohibition properly remedial. The
Court found the nationwide ban to be an appropriate means of
effectively preventing purposeful discrimination in the application
of the literacy tests as well as an appropriate means of remedying
prior constitutional violations by state and local governments in
the administration of education to minorities.
The presumption that the literacy tests were either being used
to purposefully discriminate or that the disparate effects of those
tests were attributable to discrimination in state
Page 446 U. S. 216
administered education was not very wide of the mark. Various
opinions of the Court noted that, at the time that Congress enacted
the ban, few States were utilizing literacy tests, 400 U.S. at
400 U. S. 147
(opinion of Douglas, J.), and the voter registration statistics
available within those States suggested that a disparate effect was
prevalent.
Id. at
400 U. S. 132-133 (opinion of Black, J.). Even if not
adopted with a discriminatory purpose, the tests could readily be
applied in a discriminatory fashion. Thus, a demonstration by the
State that it sought to reinstate the tests for legitimate purposes
did not eliminate the substantial risk of discrimination in
application. Only a ban could effectively prevent the occurrence of
purposeful discrimination.
The nationwide ban was also found necessary to effectively
remedy past constitutional violations. Without the nationwide ban,
a voter who was illiterate due to state discrimination in education
could be denied the right to vote on the basis of his illiteracy
when he moved into a jurisdiction retaining a literacy test for
nondiscriminatory purposes.
Id. at
400 U. S.
283-284. Finally, MR. JUSTICE STEWART found that a
uniform prohibition had definite advantages for enforcement and
federal relations: it reduced tensions with particular regions, and
it relieved the Federal Government from the administrative burden
implicated by selective state enforcement.
Presumptive prohibition of vote-diluting procedures is not
similarly an "appropriate" means of exacting state compliance with
the Civil War Amendments. First, these prohibitions are quite
unlike the literacy ban, where the disparate effects were traceable
to the discrimination of governmental bodies in education even if
their present desire to use the tests was legitimate.
See
Gaston County v. United States, 395 U.
S. 285 (1969). Any disparate impact associated with the
nondiscriminatory electoral changes in issue here results from bloc
voting -- private, rather than governmental,
Page 446 U. S. 217
discrimination. It is clear, therefore, that these prohibitions
do not implicate congressional power to devise an effective remedy
for prior constitutional violations by local governments. Nor does
the Court invoke this aspect of congressional remedial powers.
It is also clear that, while most States still utilizing
literacy tests may have been doing so to discriminate, a similar
generalization could not be made about all government structures
which have some disparate impact on black voting strength. At the
time Congress passed the Act, one study demonstrated that 60 of all
cities nationwide had at-large elections for city officials, for
example. This form of government was adopted by many cities
throughout this century as a reform measure designed to overcome
wide-scale corruption in the ward system of government.
See Jewell, Local Systems of Representation: Political
Consequences and Judicial Choices, 36 Geo.Wash.L.Rev. 790, 799
(1967). Obviously, annexations similarly cannot be presumed to be
devoid of legitimate uses. Yet both of these practices are
regularly prohibited by the Act in most covered cities.
Nor does the prohibition of all practices with a disparate
impact enhance congressional prevention of purposeful
discrimination. The changes in issue are not, like literacy tests,
though fair on their face, subject to discriminatory application by
local authorities.
See Yick Wo v. Hopkins, 118 U.
S. 356 (1886). They are either discriminatory from the
outset or not.
Finally, the advantages supporting the imposition of a
nationwide ban are simply not implicated in this case. No added
administrative burdens are in issue, since Congress has provided
the mechanism for preclearance suits in any event, and the burden
of proof for this issue is on the locality. And it is certain that
the only constitutional wrong implicated-- purposeful dilution --
can be effectively remedied by prohibiting it where it occurs. For
all these reasons, I do not think
Page 446 U. S. 218
that the present case is controlled by the result in Oregon. By
prohibiting all electoral changes with a disparate impact, Congress
has attempted to prevent disparate impacts -- not purposeful
discrimination.
Congress unquestionably has the power to prohibit and remedy
state action which intentionally deprives citizens of Fourteenth
and Fifteenth Amendment rights. But unless these powers are to be
wholly uncanalized, it cannot be appropriate remedial legislation
for Congress to prohibit Rome from structuring its government in
the manner as its population sees fit, absent a finding or
unrebutted presumption that Rome has been, or is, intentionally
discriminating against its black citizens. Rome has simply
committed no constitutional violations, as this Court has defined
them.
More is at stake than sophistry at its worst in the Court's
conclusion that requiring the local government to structure its
political system in a manner that most effectively enhances black
political strength serves to remedy or prevent constitutional
wrongs on the part of the local government. The need to prevent
this disparate impact is premised on the assumption that white
candidates will not represent black interests, and that States
should devise a system encouraging blacks to vote in a bloc for
black candidates. The findings in this case alone demonstrate the
tenuous nature of these assumptions. The court below expressly
found that white officials have ably represented the interests of
the black community. Even blacks who testified admitted no
dissatisfaction, but expressed only a preference to be represented
by officials of their own race. The enforcement provisions of the
Civil War Amendments were not premised on the notion that Congress
could empower a later generation of blacks to "get even" for wrongs
inflicted on their forebears. What is now at stake in the city of
Rome is the preference of the black community to be represented by
a black. This Court has never elevated such a notion, by no means
confined to blacks, to the status of a constitutional right.
See Whitcomb v.
Chavis,
Page 446 U. S. 219
403 U. S. 124
(1971). This Court concluded in
Whitcomb that
"[t]he mere fact that one interest group or another concerned
with the outcome of . . . elections has found itself outvoted and
without legislative seats of its own provides no basis for invoking
constitutional remedies where, as here, there is no indication that
this segment of the population is being denied access to the
political system."
Id. at
403 U. S.
154-155. The Constitution imposes no obligation on local
governments to erect institutional safeguards to ensure the
election of a black candidate. Nor do I believe that Congress can
do so, absent a finding that this obligation would be necessary to
remedy constitutional violations on the part of the local
government.
It is appropriate to add that, even if this Court could find a
remedial relationship between the prohibition of all state action
with a disparate impact on black voting strength and the incidence
of purposeful discrimination, this Court should exercise caution in
approving the remedy in issue here absent purposeful dilution.
Political theorists can readily differ on the advantages inherent
in different governmental structures. As Mr. Justice Harlan noted
in his dissent in
Fairley v. Patterson, decided together
with
Allen v. State Board of Elections, 393 U.
S. 544 (1969):
"[I]t is not clear to me how a court would go about deciding
whether an at-large system is to be preferred over a district
system. 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."
Id. at
393 U. S. 586
(emphasis deleted).
B
The result reached by the Court today can be sustained only upon
the theory that Congress was empowered to determine that structural
changes with a disparate impact on a minority group's ability to
elect a candidate of their race
Page 446 U. S. 220
violates the Fourteenth or Fifteenth Amendment. This
construction of the Fourteenth Amendment was rejected in the
Civil Rights Cases, 109 U. S. 3 (1883).
The Court emphasized that the power conferred was "remedial" only.
The Court reasoned that the structure of the Amendment made it
clear that it did not
"authorize Congress to create a code of municipal law for the
regulation of private rights, but to provide modes of redress
against the operation of State laws, and the action of State
officers . . . when these are subversive of the fundamental rights
specified in the [A]mendment."
Id. at
109 U. S. 11.
This interpretation is consonant with the legislative history
surrounding the enactment of the Amendment. [
Footnote 4/7]
This construction has never been refuted by a majority of the
Members of this Court. Support for this construction in current
years has emerged in
South Carolina v. Katzenbach,
383 U. S. 301
(1966), and
Oregon v. Mitchell, 400 U.
S. 112 (1970). [
Footnote
4/8]
See also opinion of POWELL, J.,
ante at
446 U. S.
200-201. In
South Carolina v. Katzenbach, the
Court observed that Congress could not attack evils not
comprehended by the Fifteenth Amendment. 383 U.S. at
383 U. S. 326.
In
Oregon v. Mitchell, five Members of the Court were
unwilling to conclude that Congress had the power to determine that
establishing
Page 446 U. S. 221
the age limitation for voting at 21 denied equal protection to
those between the ages of 18 and 20.
The opinion of MR. JUSTICE STEWART in that case, joined by MR.
CHIEF JUSTICE BURGER and MR. JUSTICE BLACKMUN, reaffirmed that
Congress only has the power under the Fourteenth Amendment to
"provide the means of eradicating situations that amount to a
violation of the Equal Protection Clause," but not to "determine as
a matter of substantive constitutional law what situations fall
within the ambit of the clause."
Id. at
400 U. S. 296.
Mr. Justice Harlan, in a separate opinion, reiterated his belief
that it is the duty of the Court, and not the Congress, to
determine when States have exceeded constitutional limitations
imposed upon their powers.
Id. at
400 U. S.
204-207.
Cf. Oregon v. Hass, 420 U.
S. 714 (1975);
Cooper v. Aaron, 358 U. S.
1,
358 U. S. 18
(1958). Mr. Justice Black also was unwilling to accept the broad
construction of enforcement powers formulated in the opinion of MR.
JUSTICE BRENNAN, joined by JUSTICES WHITE and MARSHALL. [
Footnote 4/9]
The Court today fails to heed this prior precedent. To permit
congressional power to prohibit the conduct challenged in this case
requires state and local governments to cede far more of their
powers to the Federal Government than the Civil War Amendments ever
envisioned; and it requires the judiciary to cede far more of its
power to interpret and enforce the Constitution than ever
envisioned. The intrusion is all the more offensive to our
constitutional system when it is recognized that the only values
fostered are debatable assumptions about political theory which
should properly be left to the local democratic process.
[
Footnote 4/1]
The Voting Rights Act is generally viewed as an exercise of
Fifteenth Amendment power.
See South Carolina v.
Katzenbach, 383 U. S. 301
(1966). Since vote "dilution" devices are in issue in this case,
the rights at stake are more properly viewed as Fourteenth
Amendment rights.
See Cit of Mobile v. Bolden, ante p.
446 U. S. 55.
Nevertheless, this Court has upheld the constitutionality of the
Act if it is applied to remedy violations of the Fourteenth
Amendment.
Gaston County v. United States, 395 U.
S. 285,
395 U. S. 290,
n. 5 (1969). Moreover, the nature of the enforcement powers
conferred by the Fourteenth and Fifteenth Amendments has always
been treated as coextensive.
See, e.g., United States v.
Guest, 383 U. S. 745,
383 U. S. 784
(1966) (opinion of BRENNAN, J.);
James v. Bowman,
190 U. S. 127
(1903). For this reason, it is not necessary to differentiate
between the Fourteenth and Fifteenth Amendment powers for the
purposes of this opinion.
[
Footnote 4/2]
I share MR. JUSTICE POWELL's observation that the factual
conclusions respecting the discriminatory effect of the annexations
are highly questionable.
Ante at
446 U. S.
195-196. I rest my dissent, however, on somewhat broader
grounds.
[
Footnote 4/3]
At least four Members of the Court in
Mobile held that
purposeful discrimination would be prerequisite to establishing a
constitutional violation in a case alleging vote dilution under the
Fourteenth and Fifteenth Amendments.
Ante at
446 U. S. 66-68
(opinion of STEWART, J.). While a majority of the Court might adopt
this view,
see ante at
446 U. S. 94
(opinion of WHITE, J.), the voting procedures adopted by Rome would
appear to readily meet the standards of constitutionality
established by MR JUSTICE STEVENS.
See ante at
446 U. S.
90.
[
Footnote 4/4]
In
City of Petersburg v. United States, 354 F.
Supp. 1021 (DC 1972),
summarily aff'd, 410 U.S. 962
(1973), the District Court did find that an annexation scheme could
be prohibited solely on the basis of its disparate impact, without
a finding of purposeful discrimination on the part of the local
government.
Petersburg cannot be considered dispositive of
the question presented in this case, however. The court did not
address any possible constitutional difficulties with its
conclusion, and thus it is not clear that these arguments were
raised by the parties. An unexplicated summary affirmance by this
Court affirms only the judgment, not the reasoning, of the District
Court.
See Hicks v. Miranda, 422 U.
S. 332 (1975).
[
Footnote 4/5]
This issue was also not squarely presented or resolved in
United Jewish Organizations v. Carey, 430 U.
S. 144 (1977). In
UJO, the issue was whether
the State could constitutionally take racial criteria into account
in drawing its district lines where such redistricting was not
strictly necessary to eliminate the effects of past discriminatory
districting or apportionment. The Court found that use of these
criteria was proper, for differing reasons. In an opinion by MR.
JUSTICE WHITE, joined by three other Members of the Court, it was
suggested in part that the Voting Rights Act could constitutionally
require this. The only question, however, was the constitutionality
of state use of racial criteria,
vis-a-vis other citizens,
and not the constitutionality of congressional Acts which required
state governments to use racial criteria against their will. In
another part of the opinion, MR. JUSTICE WHITE reasoned that "the
State is [not] powerless to minimize the consequences of racial
discrimination by voters when it is regularly practiced at the
polls."
Id. at
430 U. S. 167.
While States may be empowered to voluntarily use racial criteria in
order to minimize the effects of racial-bloc voting, that
conclusion does not determine the constitutional authority of
Congress to require States to use racial criteria in structuring
their governments.
[
Footnote 4/6]
See the reference to the legislative history in
United Jewish Organizations v. Carey, supra, at
430 U. S.
158.
[
Footnote 4/7]
See, e.g., Burt,
Miranda And Title II: A
Morganatic Marriage, 1969 S.Ct.Rev. 81.
[
Footnote 4/8]
Explicit support can also be derived from Mr. Justice Harlan's
dissenting opinion, joined by MR. JUSTICE STEWART, in
Katzenbach v. Morgan, 384 U. S. 641,
384 U. S. 659
(1966). Mr. Justice Harlan clarified the need for the remedial
construction of congressional powers. It is also unnecessary,
however, to read the majority opinion as establishing the Court's
rejection of the remedial construction of the
Civil Rights
Cases. While MR. JUSTICE BRENNAN's majority opinion did
contain language suggesting a rejection of the "remedial"
construction of the enforcement powers, the opinion also advanced a
remedial rationale which supports the determination reached by the
Court.
Compare the rationales forwarded at 384 U.S. at
384 U. S. 654
with the statements
id. at
384 U. S. 656.
It would be particularly inappropriate to construe
Katzenbach
v. Morgan as a rejection of the remedial interpretation of
congressional powers in view of this Court's subsequent decision in
Oregon v. Mitchell.
[
Footnote 4/9]
Since Mr. Justice Black found that congressional powers were
more circumscribed when not acting to counter racial discrimination
under the Fourteenth Amendment, he did not have to determine the
precise nature of congressional powers when they were exercised in
the field of racial relations. His analysis of the nationwide ban
on literacy tests, also presented in
Oregon v. Mitchell,
however, is consistent with a remedial interpretation of those
powers.