United States Supreme Court Cases & Opinions

OCTOBER TERM, 1993

Syllabus

HOLDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER FOR BLECKLEY COUNTY, GEORGIA, ET AL. v. HALL ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 91-2012. Argued October 4, 1993-Decided June 30, 1994

Bleckley County, Georgia, has always had a form of government whereby a single commissioner holds all legislative and executive authority. In 1985, the state legislature authorized the county to adopt by referendum a multimember commission consisting of five members elected from single-member districts and a chair elected at large, but voters defeated the proposal, although they had previously approved a five-member district plan for the county school board. Respondents, black voters and the local chapter of the National Association for the Advancement of Colored People, filed this action. The District Court rejected their constitutional claim that the single-member commission was enacted or maintained with an intent to exclude or limit the political influence of the county's black community in violation of the Fourteenth and Fifteenth Amendments. The court also ruled against their claim that the commission's size violated § 2 of the Voting Rights Act of 1965, finding that respondents satisfied only one of the three preconditions established in Thornburg v. Gingles, 478 U. S. 30. The Court of Appeals reversed on the statutory claim, holding that the totality of the circumstances supported § 2 liability and remanding for a formulation of a remedy, which it suggested could be modeled after the county's school board election system.

Held: The judgment is reversed, and the case is remanded. 955 F.2d 1563, reversed and remanded.

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE O'CONNOR, concluded in Parts I, II-A, and III:

1. The size of a governing authority is not subject to a vote dilution challenge under § 2. Along with determining whether the Gingles preconditions are met and whether the totality of the circumstances support a liability finding, a court in a § 2 suit must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice. However, there is no objective and workable standard for choosing a reasonable benchmark where, as here, the challenge is brought to the government body's size. There is no reason why one

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size should be picked over another. Respondents have offered no convincing reasons why the benchmark should be a hypothetical fivemember commission. That such a commission is the most common form of governing authority in the State does not bear on dilution, since a sole commissioner system has the same impact on voting strength whether it is shared by none, or by all, of Georgia's counties. That the county was authorized to expand its commission, and that it adopted a five-member school board, are likewise irrelevant considerations. At most, they indicate that the county could change the size of its governing body with minimal disruption, but the failure to do so says nothing about the effects the current system has on the county citizens' voting power. Pp.880-882.

2. The case is remanded for consideration of respondents' constitutional claim. P. 885.

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, concluded in Part II-B that a voting practice subject to the preclearance requirement of § 5 of the Act is not necessarily subject to a dilution challenge under § 2. The sections differ in structure, purpose, and application; and in contrast to § 2 cases, a baseline for comparison under § 5 exists by definition: A proposed voting practice is measured against the existing practice to determine whether retrogression would result from the proposed change. pp. 882-885.

JUSTICE O'CONNOR concluded that precedent compels the conclusion that the size of a governing authority is both a "standard, practice, or procedure" under § 2 and a "standard, practice, or procedure with respect to voting" under § 5, but agreed that a § 2 dilution challenge to a governing authority's size cannot be maintained because there can never be an objective alternative benchmark for comparison. Pp. 885-888.

JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that the size of a governing body cannot be attacked under § 2 because it is not a "standard, practice, or procedure" within the terms of § 2. An examination of § 2's text makes it clear that those terms refer only to practices that affect minority citizens' access to the ballot. Districting systems and electoral mechanisms that may affect the "weight" given to a ballot duly cast and counted are simply beyond the purview of the Act. The decision in Thornburg v. Gingles, 478 U. S. 30, which interprets § 2 to reach claims of vote "dilution," should be overruled. Gingles was based upon a flawed method of statutory construction and has produced an interpretation of § 2 that is at odds with the text of the Act and that has proved unworkable in practice. Pp. 891-946.

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., joined, and in all but Part II-B of

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which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 885. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 891. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, SouTER, and GINSBURG, JJ., joined, post, p. 946. GINSBURG, J., filed a dissenting opinion, post, p. 956. STEVENS, J., filed a separate opinion, in which BLACKMUN, SOUTER, and GINSBURG, JJ., joined, post, p. 957.

R. Napier Murphy argued the cause for petitioners.

With him on the briefs was W Lonnie Barlow.

Christopher Coates argued the cause for respondents.

With him on the brief were Laughlin McDonald, Kathleen Wilde, Neil Bradley, Mary Wyckoff, John A. Powell, and Steven R. Shapiro. *

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE joined, and in all but Part II-B of which JUSTICE O'CONNOR joined.

This case presents the question whether the size of a governing authority is subject to a vote dilution challenge under § 2 of the Voting Rights Act of 1965, 42 U. S. C. § 1973.

I

The State of Georgia has 159 counties, one of which is Bleckley County, a rural county in central Georgia. Black persons make up nearly 20% of the eligible voting population in Bleckley County. Since its creation in 1912, the county has had a single-commissioner form of government for the exercise of "county governing authority." See Ga. Code Ann. § 1-3-3(7) (Supp. 1993). Under this system, the

*Briefs of amici curiae urging affirmance were filed for the United States by Acting Solicitor General Bryson, Acting Assistant Attorney General Turner, Acting Deputy Solicitor General Kneedler, Michael R. Dreeben, and Dennis J. Dimsey; and for the Lawyers' Committee for Civil Rights Under Law by Antonia B. Ianniello, Herbert M. Wachtell, William H. Brown III, Norman Redlich, Thomas J. Henderson, Frank R. Parker, and Brenda Wright.

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Bleckley County Commissioner performs all of the executive and legislative functions of the county government, including the levying of general and special taxes, the directing and controlling of all county property, and the settling of all claims. Ga. Code Ann. § 36-5-22.1 (1993). In addition to Bleckley County, about 10 other Georgia counties use the single-commissioner system; the rest have multimember commissions.

In 1985, the Georgia Legislature authorized Bleckley County to adopt a multimember commission consisting of five commissioners elected from single-member districts and a single chairman elected at large. 1985 Ga. Laws, p. 4406. In a referendum held in 1986, however, the electorate did not adopt the change to a multimember commission. (In a similar referendum four years earlier, county voters had approved a five-member district plan for the election of the county school board.)

In 1985, respondents (six black registered voters from Bleckley County and the CochranlBleckley County Chapter of the National Association for the Advancement of Colored People) challenged the single-commissioner system in a suit filed against petitioners (Jackie Holder, the incumbent county commissioner, and Probate Judge Robert Johnson, the superintendent of elections). The complaint raised both a constitutional and a statutory claim.

In their constitutional claim, respondents alleged that the county's single-member commission was enacted or maintained with an intent to exclude or to limit the political influence of the county's black community in violation of the Fourteenth and Fifteenth Amendments. At the outset, the District Court made extensive findings of fact about the political history and dynamics of Bleckley County. The court found, for example, that when the county was formed in 1912, few, if any, black citizens could vote. Indeed, until passage of federal civil rights laws, Bleckley County "enforced racial segregation in all aspects of local government-courthouse,

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jails, public housing, governmental services-and deprived its black citizens of the opportunity to participate in local government." 757 F. Supp. 1560, 1562 (MD Ga. 1991). And even today, though legal segregation no longer exists, "more black than white residents of Bleckley County continue to endure a depressed socio-economic status." Ibid. No black person has run for or been elected to the office of Bleckley County Commissioner, and the District Judge stated that, having run for public office himself, he "wouldn't run if [he] were black in Bleckley [C]ounty." See 955 F.2d 1563, 1571 (CAll 1992).

The court rejected respondents' constitutional contention, however, concluding that respondents "ha[d] failed to provide any evidence that Bleckley County's single member county commission [wa]s the product of original or continued racial animus or discriminatory intent." 757 F. Supp., at 1571. Nor was there evidence that the system was maintained "for tenuous reasons" or that the commissioner himself was unresponsive to the "particularized needs" of the black community. Id., at 1564. There was no "slating process" to stand as a barrier to black candidates, and there was testimony from respondents that they were unaware of any racial appeals in recent elections. Id., at 1562, n. 2, 1583.

In their statutory claim, respondents asserted that the county's single-member commission violated § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973. Under the statute, the suit contended, Bleckley County must have a county commission of sufficient size that, with single-member election districts, the county's black citizens would constitute a majority in one of the single-member districts. Applying the § 2 framework established in Thornburg v. Gingles, 478 U. S. 30 (1986), the District Court found that respondents satisfied the first of the three Gingles preconditions because black voters were sufficiently numerous and compact that they could have constituted a majority in one district of a multimember commission. In particular,

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the District Court found that "[i]f the county commission were increased in number to six commissioners to be elected from five single member districts and if the districts were the same as the present school board election districts, a black majority 'safe' district ... would result." 757 F. Supp., at 1565. The court found, however, that respondents failed to satisfy the second and third Gingles preconditions-that whites vote as a bloc in a manner sufficient to defeat the black-preferred candidate and that blacks were politically cohesive.

The Court of Appeals for the Eleventh Circuit reversed on the statutory claim. Relying on its decision in Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (1987), the court first held that a challenge to the single-commissioner system was subject to the same analysis as that used in Gingles. Applying that analysis, the Court of Appeals agreed with the District Court that respondents had satisfied the first Gingles precondition by showing that blacks could constitute a majority of the electorate in one of five singlemember districts. The court explained that it was "appropriate to consider the size and geographical compactness of the minority group within a restructured form of the challenged system when the existing structure is being challenged as dilutive." 955 F. 2d, at 1569. The Court of Appeals further found that the District Court had erred in concluding that the second and third Gingles preconditions were not met. Turning to the totality of the circumstances, the court found that those circumstances supported a finding of liability under § 2. The court therefore concluded that respondents had proved a violation of § 2, and it remanded for formulation of a remedy, which, it suggested, "could well be modeled" after the system used to elect the Bleckley County school board. 955 F. 2d, at 1573-1574, and n. 20. Because of its statutory ruling, the Court of Appeals did not consider the District Court's ruling on respondents' constitutional claim.

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We granted certiorari to review the statutory holding of the Court of Appeals. 507 U. S. 959 (1993).

II A

Section 2 of the Voting Rights Act of 1965 provides that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U. S. C. § 1973(a). In a § 2 vote dilution suit, along with determining whether the Gingles preconditions are met 1 and whether the totality of the circumstances supports a finding of liability, a court must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice. See post, at 887 (O'CONNOR, J., concurring in part and concurring in judgment). As JUSTICE O'CONNOR explained in Gingles: "The phrase vote dilution itself suggests a norm with respect to which the fact of dilution may be ascertained .... [I]n order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it should be for minority voters to elect their preferred candidates under an acceptable system." 478 U. S., at 88 (opinion concurring in judgment) (internal quotation marks omitted).

In certain cases, the benchmark for comparison in a § 2 dilution suit is obvious. The effect of an anti-single-shot voting rule, for instance, can be evaluated by comparing the

1 Gingles requires a showing that "the minority group ... is sufficiently large and geographically compact to constitute a majority in a singlemember district," 478 U. S., at 50, that the minority group is politically cohesive, and that the majority group "votes sufficiently as a bloc to enable it-in the absence of special circumstances ... usually to defeat the minority's preferred candidate," id., at 51.

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system with that rule to the system without that rule. But where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under § 2. See post, at 887-891 (O'CONNOR, J., concurring in part and concurring in judgment).

As the facts of this case well illustrate, the search for a benchmark is quite problematic when a § 2 dilution challenge is brought to the size of a government body. There is no principled reason why one size should be picked over another as the benchmark for comparison. Respondents here argue that we should compare Bleckley County's sole commissioner system to a hypothetical five-member commission in order to determine whether the current system is dilutive. Respondents and the United States as amicus curiae give three reasons why the single-commissioner structure should be compared to a five-member commission (instead of, say, a 3-, 10-, or 15-member body): (1) because the five-member commission is a common form of governing authority in the State; (2) because the state legislature had authorized Bleckley County to adopt a five-member commission if it so chose (it did not); and (3) because the county had moved from a single superintendent of education to a school board with five members elected from single-member districts. See Brief for United States as Amicus Curiae 17-18.

These referents do not bear upon dilution. It does not matter, for instance, how popular the single-member commission system is in Georgia in determining whether it dilutes the vote of a minority racial group in Bleckley County. That the single-member commission is uncommon in the State of Georgia, or that a five-member commission is quite common, tells us nothing about its effects on a minority group's voting strength. The sole commissioner system has the same impact regardless of whether it is shared by none, or by all, of the other counties in Georgia. It makes little

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sense to say (as do respondents and the United States) that the sole commissioner system should be subject to a dilution challenge if it is rare-but immune if it is common.

That Bleckley County was authorized by the State to expand its commission, and that it adopted a five-member school board, are likewise irrelevant considerations in the dilution inquiry. At most, those facts indicate that Bleckley County could change the size of its commission with minimal disruption. But the county's failure to do so says nothing about the effects the sole commissioner system has on the voting power of Bleckley County's citizens. Surely a minority group's voting strength would be no more or less diluted had the State not authorized the county to alter the size of its commission, or had the county not enlarged its school board. One gets the sense that respondents and the United States have chosen a benchmark for the sake of having a benchmark. But it is one thing to say that a benchmark can be found, quite another to give a convincing reason for finding it in the first place.

B

To bolster their argument, respondents point out that our § 5 cases may be interpreted to indicate that covered jurisdictions may not change the size of their government bodies without obtaining preclearance from the Attorney General or the federal courts. Brief for Respondents 29; see Presley v. Etowah County Comm'n, 502 U. S. 491, 501-503 (1992); City of Lockhart v. United States, 460 U. S. 125, 131-132 (1983); City of Rome v. United States, 446 U. S. 156, 161 (1980). Respondents contend that these § 5 cases, together with the similarity in language between §§ 2 and 5 of the Act, compel the conclusion that the size of a government body must be subject to a dilution challenge under § 2. It is true that in Chisom v. Roemer, 501 U. S. 380, 401-402 (1991), we said that the coverage of §§ 2 and 5 is presumed to be the same (at least if differential coverage would be anomalous). We did not adopt a conclusive rule to that effect, however,

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and we do not think that the fact that a change in a voting practice must be precleared under § 5 necessarily means that the voting practice is subject to challenge in a dilution suit under §2.

To be sure, if the structure and purpose of § 2 mirrored that of § 5, then the case for interpreting §§ 2 and 5 to have the same application in all cases would be convincing. But the two sections differ in structure, purpose, and application.2 Section 5 applies only in certain jurisdictions specified by Congress and "only to proposed changes in voting procedures." Beer v. United States, 425 U. S. 130, 138 (1976); see 42 U. S. C. § 1973b(b) (specifying jurisdictions where § 5 applies). In those covered jurisdictions, a proposed change in a voting practice must be approved in advance by the Attorney General or the federal courts. § 1973c. The purpose of this requirement "has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 425 U. S., at 141. Under § 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change. See ibid. The baseline for comparison is present by definition; it is the existing status. While there may be difficulty in determining whether a pro-

2 Section 2 provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U. S. C. § 1973(a).

Section 5 requires preclearance approval by a court or by the Attorney General "[w]henever a [covered] State or political subdivision ... shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting ... different from that [previously] in force or effect" so as to ensure that 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.

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posed change would cause retrogression, there is little difficulty in discerning the two voting practices to compare to determine whether retrogression would occur. See 28 CFR § 51.54(b) (1993).

Retrogression is not the inquiry in § 2 dilution cases. 42 U. S. C. § 1973(a) (whether voting practice "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color"); S. Rep. No. 97417, p. 68, n. 224 (1982) ("Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for example, involved a retrogressive effect on the political strength of a minority group"). Unlike in § 5 cases, therefore, a benchmark does not exist by definition in § 2 dilution cases. And as explained above, with some voting practices, there in fact may be no appropriate benchmark to determine if an existing voting practice is dilutive under § 2. For that reason, a voting practice that is subject to the preclearance requirements of § 5 is not necessarily subject to a dilution challenge under § 2.

This conclusion is quite unremarkable. For example, in Perkins v. Matthews, 400 U. S. 379, 388 (1971), we held that a town's annexation ofland was covered under § 5. Notwithstanding that holding, we think it quite improbable to suggest that a § 2 dilution challenge could be brought to a town's existing political boundaries (in an attempt to force it to annex surrounding land) by arguing that the current boundaries dilute a racial group's voting strength in comparison to the proposed new boundaries. Likewise, in McCain v. Lybrand, 465 U. S. 236 (1984), we indicated that a change from an appointive to an elected office was covered under § 5. Here, again, we doubt Congress contemplated that a racial group could bring a § 2 dilution challenge to an appointive office (in an attempt to force a change to an elective office) by arguing that the appointive office diluted its voting strength in comparison to the proposed elective office. We think these examples serve to show that a voting practice is

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not necessarily subject to a dilution challenge under § 2 even when a change in that voting practice would be subject to the preclearance requirements of § 5.

III

With respect to challenges to the size of a governing authority, respondents fail to explain where the search for reasonable alternative benchmarks should begin and end, and they provide no acceptable principles for deciding future cases. The wide range of possibilities makes the choice "inherently standardless," post, at 889 (O'CONNOR, J., concurring in part and concurring in judgment), and we therefore conclude that a plaintiff cannot maintain a § 2 challenge to the size of a government body, such as the Bleckley County Commission. The judgment of the Court of Appeals is reversed, and the case is remanded for consideration of respondents' constitutional claim.

It is so ordered.

JUSTICE O'CONNOR, concurring in part and concurring in the judgment.

I agree with JUSTICES KENNEDY and THOMAS that a plaintiff cannot maintain a § 2 vote dilution challenge to the size of a governing authority, though I reach that conclusion by a somewhat different rationale. JUSTICE THOMAS rejects the notion that § 2 covers any dilution challenges, and would hold that § 2 is limited to "state enactments that regulate citizens' access to the ballot or the processes for counting a ballot." Post, at 945. As JUSTICE STEVENS points out, however, stare decisis concerns weigh heavily here. Post, at 963-966 (opinion of STEVENS, J.); see also Thornburg v. Gingles, 478 U. S. 30, 84 (1986) (O'CONNOR, J., concurring in judgment) ("We know that Congress intended to allow vote dilution claims to be brought under § 2"); id., at 87 ("I agree with the Court that proof of vote dilution can establish a violation of § 2"). These concerns require me to reject JUSTICE

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THOMAS' suggestion that we overhaul our established reading of §2.

I also agree with JUSTICE BLACKMUN, see post, at 946950, that our precedents compel the conclusion that the size of the Bleckley County Commission is both a "standard, practice, or procedure" under § 2 and a "standard, practice, or procedure with respect to voting" under § 5. See, e. g., Presley v. Etowah County Comm'n, 502 U. S. 491, 503 (1992) (change in size is a change in a "standard, practice, or procedure" because the change "increase[s] or diminish[es] the number of officials for whom the electorate may vote"); City of Lockhart v. United States, 460 U. S. 125, 131-132 (1983) (change from three-member commission to five-member commission is subject to § 5 preclearance); City of Rome v. United States, 446 U. S. 156, 160-161 (1980) (it "is not disputed" that an expansion in the size of a board of education is subject to § 5 preclearance); Bunton v. Patterson, decided with Allen v. State Bd. of Elections, 393 U. S. 544, 569-571 (1969) (change from elected to appointed office is subject to § 5 preclearance); id., at 566-567 (§ 2 should be given "the broadest possible scope").

As JUSTICES KENNEDY and BLACKMUN both recognize, in these cases we have consistently said that a change in size is a "standard, practice, or procedure with respect to voting" that is subject to § 5 preclearance. See ante, at 882 (opinion of KENNEDY, J.); post, at 946-948 (BLACKMUN, J., dissenting). And though our cases involving size have concerned § 5, I do not think it possible to read the terms of § 2 more narrowly than the terms of § 5. Section 2 covers any "standard, practice, or procedure," while § 5 covers any "standard, practice, or procedure with respect to voting." As a textual matter, I cannot see how a practice can be a "standard, practice, or procedure with respect to voting," yet not be a "standard, practice, or procedure." Indeed, the similarity in language led to our conclusion in Chisom v. Roemer, 501 U. S. 380,

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401-402 (1991), that, at least for determining threshold coverage, §§ 2 and 5 have parallel scope.

But determining the threshold scope of coverage does not end the inquiry, at least so far as § 2 dilution challenges are concerned. As JUSTICES KENNEDY and BLACKMUN agree, the fact that the size of a governing authority is a "standard, practice, or procedure" does not answer the question whether respondents may maintain a § 2 vote dilution challenge. See ante, at 880 (opinion of KENNEDY, J.); post, at 951 (BLACKMUN, J., dissenting). Section 2 vote dilution plaintiffs must establish that the challenged practice is dilutive. In order for an electoral system to dilute a minority group's voting power, there must be an alternative system that would provide greater electoral opportunity to minority voters. "Put simply, in order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it 'should' be for minority voters to elect their preferred candidates under an acceptable system." Gingles, 478 U. S., at 88 (O'CONNOR, J., concurring in judgment). As we have said, "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." Id., at 50, n. 17 (emphasis in original); see also id., at 99 (O'CONNOR, J., concurring in judgment) ("[T]he relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution") (emphasis added).

Accordingly, to determine whether voters possess the potential to elect representatives of choice in the absence of the challenged structure, courts must choose an objectively reasonable alternative practice as a benchmark for the dilution comparison. On this, there is general agreement. See ante, at 880 (opinion of KENNEDY, J.) ("[A] court must find a

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reasonable alternative practice as a benchmark against which to measure the existing voting practice"); post, at 951 (BLACKMUN, J., dissenting) ("[T]he allegedly dilutive mechanism must be measured against the benchmark of an alternative structure or practice that is reasonable and workable under the facts of the specific case"). We require preclearance of changes in size under § 5, because in a § 5 case the question of an alternative benchmark never arises-the benchmark is simply the former practice employed by the jurisdiction seeking approval of a change. See ante, at 883 (opinion of KENNEDY, J.).

But § 2 dilution challenges raise more difficult questions.

This case presents the question whether, in a § 2 dilution challenge to size, there can ever be an objective alternative benchmark for comparison. And I agree with JUSTICE KENNEDY that there cannot be. As JUSTICE KENNEDY points out, ante, at 880, the alternative benchmark is often self-evident. In a challenge to a multimember at-large system, for example, a court may compare it to a system of multiple single-member districts. See Gingles, supra, at 38, 50; Davidson, Minority Vote Dilution: An Overview, in Minority Vote Dilution 5 (C. Davidson ed. 1984). Similarly, a court may assess the dilutive effect of majority vote requirements, numbered posts, staggered terms, residency requirements, or anti-single-shot rules by comparing the election results under a system with the challenged practice to the results under a system without the challenged practice. Cf. City of Rome, supra, at 183-185; U. S. Comm'n on Civil Rights, The Voting Rights Act: Ten Years After, pp. 206-208 (1975); Note, Application of Section 2 of the Voting Rights Act to Runoff Primary Election Laws, 91 Colum. L. Rev. 1127, 1148 (1991). Though there may be disagreements about the precise appropriate alternative practice in these cases, see Gingles, supra, at 88-89 (O'CONNOR, J., concurring in judgment), there are at least some objectively determinable constraints on the dilution inquiry.

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This is not so with § 2 dilution challenges to size, however.

In a dilution challenge to the size of a governing authority, choosing the alternative for comparison-a hypothetical larger (or smaller) governing authority-is extremely problematic. See ante, at 881-882 (opinion of KENNEDY, J.). The wide range of possibilities makes the choice inherently standardless. Here, for example, respondents argued that the single-member commission structure was dilutive in comparison to a five-member structure, in which AfricanAmericans would probably have been able to elect one representative of their choice. Some groups, however, will not be able to constitute a majority in one of five districts. Once a court accepts respondents' reasoning, it will have to allow a plaintiff group insufficiently large or geographically compact to form a majority in one of five districts to argue that the jurisdiction's failure to establish a 10-, 15-, or 25commissioner structure is dilutive. See, e. g., Romero v. Pomona, 883 F.2d 1418, 1425, n. 10 (CA9 1989); Heath, Managing the Political Thicket: Developing Objective Standards in Voting Rights Litigation, 21 Stetson L. Rev. 819, 827 (1992) ("[O]nce one departs from the current number of districts or other objective standard, the test loses its validity as a threshold standard").

Respondents argue that this concern with arbitrary and standardless intrusions into the size of local governing authority is overstated. Respondents' principal support for this conclusion is that a five-member commission is the most common size for Georgia. But a five-member commission is not the only common size in Georgia: 22 Georgia counties have three-member commissions (and one county has an 11member commission). Moreover, there is no good reason why the search for benchmarks should be limited to Georgia. Expanding the search nationwide produces many 20-person county commissions in Tennessee, and 40-member commissions in Wisconsin. DeSantis, County Government: A Century of Change, in The Municipal Yearbook 1989, pp. 80, 83.

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In sum, respondents do not explain how common an alternative practice must be before it can be a reliable alternative benchmark for the dilution comparison, nor do they explain where the search for alternative benchmarks should begin and end.

Respondents' failure to provide any meaningful principles for deciding future cases demonstrates the difficulty with allowing dilution challenges to the size of a governing authority. Under respondents' open-ended test, a wide range of state governmental bodies may be subject to a dilution challenge. Within each State there are many forms of government, including county commissions that range dramatically in size. For example, the majority of county commissions in New Jersey have seven members, but three counties have smaller commissions and one has a larger commission. Id., at 76. Similarly, in South Carolina the norm is a sevenmember commission, but a number of counties deviate. Id., at 79. In Tennessee, the average size for a county commission is 19 members, but one county has as few as 9 and another has as many as 40. Id., at 80. And in Wisconsin the average size is 27 members, but the commission sizes range from 7 to 46. Id., at 83.

Nor are deviations from the norm limited to counties.

Statewide governing authorities also range dramatically in size, and often do not correlate to the size of the State. For example, Texas has only 31 members in its State Senate, while tiny Rhode Island has 50. Council of State Governments, State Elective Officials and the Legislatures 1993-94, p. vi. The Texas Senate is smaller than the national average and the Rhode Island Senate is larger. Similarly, California has an unusually small 80-person Assembly, while New Hampshire has a 400-person House. Ibid.

The discrepancies in size among state and local governing authorities reinforce my concern that the limiting principle offered by respondents will in practice limit very little. Though respondents purport to present Bleckley County as

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unique, it is not. County commissions throughout New Jersey, South Carolina, Tennessee, and Wisconsin, and the state legislatures of Texas, Rhode Island, California, and New Hampshire are ripe for a dilution challenge under respondents' theory, since they do not fit the norm for their State. Moreover, though my examples are some of the more extreme ones, they are not alone. In these cases, and perhaps in many more, the potential reach of allowing dilution challenges to size will not be meaningfully circumscribed by the open-ended requirement that the alternative benchmark be "reasonable and workable." Post, at 951 (BLACKMUN, J., dissenting).

For these reasons, I concur in the conclusion that respondents' dilution challenge to the size of the Bleckley County Commission cannot be maintained under § 2 of the Voting Rights Act, and I join Parts I, II-A, and III of JUSTICE KENNEDY'S opinion. Because the Court appropriately reverses the judgment below and remands for consideration of respondents' constitutional claim of intentional discrimination, I also concur in the judgment.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment.

We are asked in this case to determine whether the size of a local governing body is subject to challenge under § 2 of the Voting Rights Act of 1965 as a "dilutive" practice. While I agree with JUSTICES KENNEDY and O'CONNOR that the size of a governing body cannot be attacked under § 2, I do not share their reasons for reaching that conclusion. JUSTICE KENNEDY persuasively demonstrates that there is no principled method for determining a benchmark against which the size of a governing body might be compared to determine whether it dilutes a group's voting power. Both he and JUSTICE O'CONNOR rely on that consideration to conclude that size cannot be challenged under § 2 of the Act. See ante, at 880-882, 885 (opinion of KENNEDY, J.);

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THOMAS, J., concurring in judgment

ante, at 888-891 (O'CONNOR, J., concurring in part and concurring in judgment).

While the practical concerns JUSTICES KENNEDY and O'CONNOR point out can inform a proper construction of the Act, I would explicitly anchor analysis in this case in the statutory text. Only a "voting qualification or prerequisite to voting, or standard, practice, or procedure" can be challenged under § 2. I would hold that the size of a governing body is not a "standard, practice, or procedure" within the terms of the Act. In my view, however, the only principle limiting the scope of the terms "standard, practice, or procedure" that can be derived from the text of the Act would exclude, not only the challenge to size advanced today, but also challenges to allegedly dilutive election methods that we have considered within the scope of the Act in the past.

I believe that a systematic reassessment of our interpretation of § 2 is required in this case. The broad reach we have given the section might suggest that the size of a governing body, like an election method that has the potential for diluting the vote of a minority group, should come within the terms of the Act. But the gloss we have placed on the words "standard, practice, or procedure" in cases alleging dilution is at odds with the terms of the statute and has proved utterly unworkable in practice. A review of the current state of our cases shows that by construing the Act to cover potentially dilutive electoral mechanisms, we have immersed the federal courts in a hopeless project of weighing questions of political theory-questions judges must confront to establish a benchmark concept of an "undiluted" vote. Worse, in pursuing the ideal measure of voting strength, we have devised a remedial mechanism that encourages federal courts to segregate voters into racially designated districts to ensure minority electoral success. In doing so, we have collaborated in what may aptly be termed the racial "balkaniz[ation]" of the Nation. Shaw v. Reno, 509 U. S. 630, 658 (1993).

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I can no longer adhere to a reading of the Act that does not comport with the terms of the statute and that has produced such a disastrous misadventure in judicial policymaking. I would hold that the size of a government body is not a "standard, practice, or procedure" because, properly understood, those terms reach only state enactments that limit citizens' access to the ballot.

I

If one surveys the history of the Voting Rights Act, 42 U. S. C. § 1973 et seq., one can only be struck by the sea change that has occurred in the application and enforcement of the Act since it was passed in 1965. The statute was originally perceived as a remedial provision directed specifically at eradicating discriminatory practices that restricted blacks' ability to register and vote in the segregated South. Now, the Act has grown into something entirely different. In construing the Act to cover claims of vote dilution, we have converted the Act into a device for regulating, rationing, and apportioning political power among racial and ethnic groups. In the process, we have read the Act essentially as a grant of authority to the federal judiciary to develop theories on basic principles of representative government, for it is only a resort to political theory that can enable a court to determine which electoral systems provide the "fairest" levels of representation or the most "effective" or "undiluted" votes to minorities.

Before I turn to an analysis of the text of § 2 to explain why, in my view, the terms of the statute do not authorize the project that we have undertaken in the name of the Act, I intend first simply to describe the development of the basic contours of vote dilution actions under the Voting Rights Act.1 An examination of the current state of our decisions

1 Of course, many of the basic principles I will discuss are equally applicable to constitutional vote dilution cases. Indeed, prior to the amendment of the Voting Rights Act in 1982, dilution claims typically were

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THOMAS, J., concurring in judgment

should make obvious a simple fact that for far too long has gone unmentioned: Vote dilution cases have required the federal courts to make decisions based on highly political judgments-judgments that courts are inherently ill-equipped to make. A clear understanding of the destructive assumptions that have developed to guide vote dilution decisions and the role we have given the federal courts in redrawing the political landscape of the Nation should make clear the pressing need for us to reassess our interpretation of the Act.

A

As it was enforced in the years immediately following its enactment, the Voting Rights Act of 1965, Pub. L. 89-110,79 Stat. 437, was perceived primarily as legislation directed at eliminating literacy tests and similar devices that had been used to prevent black voter registration in the segregated South. See A. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights 17-27 (1987) (hereinafter Thernstrom). See also Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 Cardozo L. Rev. 1135, 1151 (1993) (referring to actions securing access to the ballot as the "first generation" of Voting Rights Act claims).2 This focus in enforcement flowed, no doubt, from the emphasis on access to the ballot apparent in the central provision of the Act, § 4, which used a mathematical formula based on voter registration and

brought under the Equal Protection Clause. See, e. g., White v. Regester, 412 U. S. 755 (1973); Whitcomb v. Chavis, 403 U. S. 124 (1971); Burns v. Richardson, 384 U. S. 73 (1966). The early development of our voting rights jurisprudence in those cases provided the basis for our analysis of vote dilution under the amended §2 in Thornburg v. Gingles, 478 U. S. 30 (1986).

2 Cf. L. Guinier, The Tyranny of the Majority 49, n. 58 (1994) (hereinafter Guinier) ("The first generation of voting litigation, and the 1965 statute which represented the congressional response, were concerned with the complete and total exclusion of blacks from the electoral process").

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turnout in 1964 to define certain "covered" jurisdictions in which the use of literacy tests was immediately suspended. Pub. L. 89-110, §4, 79 Stat. 438. Section 6 of the Act reflected the same concern for registration as it provided that federal examiners could be dispatched to covered jurisdictions whenever the Attorney General deemed it necessary to supervise the registration of black voters. 42 U. S. C. § 1973d. And to prevent evasion of the requirements of § 4, § 5 required that covered jurisdictions obtain "preclearance" from the Department of Justice before altering any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." § 1973c.

The Act was immediately and notably successful in removing barriers to registration and ensuring access to the ballot. For example, in Mississippi, black registration levels skyrocketed from 6.7% to 59.8% in a mere two years; in Alabama the increase was from 19.3% to 51.6% in the same time period. See Thernstrom 18. By the end of 1967, black voter registration had reached at least 50% in every covered State. See B. Grofman, L. Handley, & R. Niemi, Minority Representation and the Quest for Voting Equality 22 (1992).

The Court's decision in Allen v. State Bd. of Elections, 393 U. S. 544 (1969), however, marked a fundamental shift in the focal point of the Act. In an opinion dealing with four companion cases, the Allen Court determined that the Act should be given "the broadest possible scope." Id., at 567. Thus, in Fairley v. Patterson, the Court decided that a covered jurisdiction's switch from a districting system to an at-large system for election of county supervisors was a "standard, practice, or procedure with respect to voting," subject to preclearance under § 5. Id., at 569. Stating that the Act "was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race," id., at 565, the Court reasoned that § 5's preclearance provisions should apply, not only to changes in electoral laws that pertain to

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registration and access to the ballot, but to provisions that might "dilute" the force of minority votes that were duly cast and counted. See id., at 569. The decision in Allen thus ensured that the terms "standard, practice, or procedure" would extend to encompass a wide array of electoral practices or voting systems that might be challenged for reducing the potential impact of minority votes.

As a consequence, Allen also ensured that courts would be required to confront a number of complex and essentially political questions in assessing claims of vote dilution under the Voting Rights Act. The central difficulty in any vote dilution case, of course, is determining a point of comparison against which dilution can be measured. As Justice Frankfurter observed several years before Allen, "[t]alk of 'debasement' or 'dilution' is circular talk. One cannot speak of 'debasement' or 'dilution' of the value of a vote until there is first defined a standard of reference as to what a vote should be worth." Baker v. Carr, 369 U. S. 186, 300 (1962) (dissenting opinion). See also Thornburg v. Gingles, 478 U. S. 30, 88 (1986) (O'CONNOR, J., concurring in judgment) ("[I]n order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it 'should' be for minority voters to elect their preferred candidates under an acceptable system"). But in setting the benchmark of what "undiluted" or fully "effective" voting strength should be, a court must necessarily make some judgments based purely on an assessment of principles of political theory. As Justice Harlan pointed out in his dissent in Allen, the Voting Rights Act supplies no rule for a court to rely upon in deciding, for example, whether a multimember at-large system of election is to be preferred to a single-member district system; that is, whether one provides a more "effective" vote than another. "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." Allen,

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supra, at 586 (opinion concurring in part and dissenting in part). The choice is inherently a political one, and depends upon the selection of a theory for defining the fully "effective" vote-at bottom, a theory for defining effective participation in representative government. In short, what a court is actually asked to do in a vote dilution case is "to choose among competing bases of representation-ultimately, really, among competing theories of political philosophy." Baker, supra, at 300 (Frankfurter, J., dissenting).

Perhaps the most prominent feature of the philosophy that has emerged in vote dilution decisions since Allen has been the Court's preference for single-member districting schemes, both as a benchmark for measuring undiluted minority voting strength and as a remedial mechanism for guaranteeing minorities undiluted voting power. See, e. g., Growe v. Emison, 507 U. S. 25, 40 (1993); Gingles, supra, at 50, n. 17 (declaring that the "single-member district is generally the appropriate standard against which to measure minority group potential to elect"); Mobile v. Bolden, 446 U. S. 55, 66, n. 12 (1980) (plurality opinion) (noting that singlemember districts should be preferred in court-ordered remedial schemes); Connor v. Finch, 431 U. S. 407, 415 (1977) (same). Indeed, commentators surveying the history of voting rights litigation have concluded that it has been the objective of voting rights plaintiffs to use the Act to attack multimember districting schemes and to replace them with single-member districting systems drawn with majorityminority districts to ensure minority control of seats. See Guinier, 14 Cardozo L. Rev., at 1151; Guinier 49-54; Thernstrom 193.

It should be apparent, however, that there is no principle inherent in our constitutional system, or even in the history of the Nation's electoral practices, that makes single-member districts the "proper" mechanism for electing representatives to governmental bodies or for giving "undiluted" effect to the votes of a numerical minority. On the contrary, from

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THOMAS, J., concurring in judgment

the earliest days of the Republic, multimember districts were a common feature of our political systems. The Framers left unanswered in the Constitution the question whether congressional delegations from the several States should be elected on a general ticket from each State as a whole or under a districting scheme and left that matter to be resolved by the States or by Congress. See U. S. Const., Art. I, § 4, cl. 1. It was not until 1842 that Congress determined that Representatives should be elected from single-member districts in the States. See Act of June 25, 1842, ch. 47, 5 Stat. 491.3 Single-member districting was no more the rule in the States themselves, for the Constitutions of most of the 13 original States provided that representatives in the state legislatures were to be elected from multimember districts.4 Today, although they have come under increasing attack under the Voting Rights Act, multimember district systems continue to be a feature on the American political landscape, especially in municipal governments. See The Municipal Yearbook 14 (table) (1988) (over 60% of American cities use at-large election systems for their governing bodies).

The obvious advantage the Court has perceived in singlemember districts, of course, is their tendency to enhance the ability of any numerical minority in the electorate to gain control of seats in a representative body. See Gingles, supra, at 50-51. But in choosing single-member districting as a benchmark electoral plan on that basis the Court has made a political decision and, indeed, a decision that itself depends on a prior political choice made in answer to Justice Harlan's question in Allen. Justice Harlan asked whether a

3 At that time, seven States elected their congressional delegations on a statewide ticket. See Wesberry v. Sanders, 376 U. S. 1, 8, n. 11 (1964).

4 See, e. g., Ga. Const., Art. IV (1777); Mass. Const., Part II, ch. I, § II, Arts. I, II (1780); N. H. Const., Part II (1784); N. J. Const., Art. III (1776); N. Y. Const., Art. IV (1777); S. C. Const., Art. XIII (1778). See also Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am. Pol. Sci. Rev. 1105, 1112-1113 (1955).

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group's votes should be considered to be more "effective" when they provide influence over a greater number of seats, or control over a lesser number of seats. See 393 U. S., at 586. In answering that query, the Court has determined that the purpose of the vote-or of the fully "effective" vote-is controlling seats. In other words, in an effort to develop standards for assessing claims of dilution, the Court has adopted the view that members of any numerically significant minority are denied a fully effective use of the franchise unless they are able to control seats in an elected body.5 Under this theory, votes that do not control a representative are essentially wasted; those who cast them go unrepresented and are just as surely disenfranchised as if they had been barred from registering. Cf. id., at 569 (equating denial of the ability to elect candidates with denial of the vote). Such conclusions, of course, depend upon a certain theory of the "effective" vote, a theory that is not inherent in the concept of representative democracy itself.6

5 See, e. g., Gingles, 478 U. S., at 88 (O'CONNOR, J., concurring in judgment) (noting that the Court has determined that "minority voting strength is to be assessed solely in terms of the minority group's ability to elect candidates it prefers") (emphasis deleted). See also Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N. Y. U. L. Rev. 449, 456, n. 43, 468-471 (1988) (criticizing the Court's "electoral focus" as a narrow conception of "political opportunity"); Guinier 49 (arguing that since Gingles, courts "have measured black political representation and participation solely by reference to the number and consistent election of black candidates").

6 Undoubtedly, one factor that has prompted our focus on control of seats has been a desire, when confronted with an abstract question of political theory concerning the measure of effective participation in government, to seize upon an objective standard for deciding cases, however much it may oversimplify the issues before us. If using control of seats as our standard does not reflect a very nuanced theory of political participation, it at least has the superficial advantage of appealing to the "most easily measured indicia of political power." Davis v. Bandemer, 478 U. S. 109, 157 (1986) (O'CONNOR, J., concurring in judgment).

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In fact, it should be clear that the assumptions that have guided the Court reflect only one possible understanding of effective exercise of the franchise, an understanding based on the view that voters are "represented" only when they choose a delegate who will mirror their views in the legislative halls. See generally H. Pitkin, The Concept of Representation 60-91 (1967).7 But it is certainly possible to construct a theory of effective political participation that would accord greater importance to voters' ability to influence, rather than control, elections. And especially in a two-party system such as ours, the influence of a potential "swing" group of voters composing 10% to 20% of the electorate in a given district can be considerable.8 Even such a focus on practical influence, however, is not a necessary component of the definition of the "effective" vote. Some conceptions of representative government may primarily emphasize the formal value of the vote as a mechanism for participation in

7 Indeed, the assumptions underpinning the Court's conclusions largely parallel principles that John Stuart Mill advanced in proposing a system of proportional representation as an electoral reform in Great Britain. See J. S. Mill, Considerations on Representative Government (1861). In Mill's view, a just system of representative government required an electoral system that ensured "a minority of the electors would always have a minority of the representatives." Id., at 133. To Mill, a system that allowed a portion of the population that constituted a majority in each district to control the election of all representatives and to defeat the minority's choice of candidates was unjust because it operated to produce a "complete disfranchisement of minorities." Id., at 132.

8 We ourselves have tacitly acknowledged that our current view of what constitutes an effective vote may be subject to reevaluation, or at least that it may not provide an exclusive definition of effective voting power, as we repeatedly have reserved the question whether a vote dilution claim may be brought for failure to create minority "influence" districts. See, e. g., Voinovich v. Quilter, 507 U. S. 146, 154 (1993) (citing cases). Cf. Bandemer, supra, at 132 (noting that "the power to influence the political process is not limited to winning elections"); Gingles, supra, at 99 (O'CONNOR, J., concurring in judgment) (suggesting that the Court should not focus solely on a minority group's ability to elect representatives in assessing the effectiveness of the group's votes).

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the electoral process, whether it results in control of a seat or not. Cf. id., at 14-59.9 Under such a theory, minorities unable to control elected posts would not be considered essentially without a vote; rather, a vote duly cast and counted would be deemed just as "effective" as any other. If a minority group is unable to control seats, that result may plausibly be attributed to the inescapable fact that, in a majoritarian system, numerical minorities lose elections.10

In short, there are undoubtedly an infinite number of theories of effective suffrage, representation, and the proper apportionment of political power in a representative democracy that could be drawn upon to answer the questions posed in Allen. See generally Pitkin, supra. I do not pretend to have provided the most sophisticated account of the various possibilities; but such matters of political theory are beyond the ordinary sphere of federal judges. And that is precisely the point. The matters the Court has set out to resolve in vote dilution cases are questions of political philosophy, not questions of law.ll As such, they are not readily subjected

9 Cf. also Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation, 33 UCLA L. Rev. 257, 260-261 (1985).

10 There are traces of this view in our cases as well. See Whitcomb, 403 U. S., at 153, 155; id., at 160 ("The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them"). See also League of United Latin American Citizens v. Midland Independent School Dist., 812 F.2d 1494, 1507 (CA5) (Higginbotham, J., dissenting) ("I had supposed that the essence of our republican arrangement is that voting minorities lose"), vacated on rehearing, 829 F.2d 546 (1987) (en bane) (per curiam).

11 The point is perhaps so widely accepted at this date that it needs little further demonstration. See, e. g., L. Tribe, American Constitutional Law § 13-7, p. 1076, n. 7 (2d ed. 1988) (stating that "no strategy [in vote dilution cases] can avoid the necessity for at least some hard substantive decisions of political theory by the federal judiciary"); Howard & Howard, The Dilemma of the Voting Rights Act-Recognizing the Emerging Political Equality Norm, 83 Colum. L. Rev. 1615, 1633, 1635 (1983) (hereinafter

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to any judicially manageable standards that can guide courts in attempting to select between competing theories.

But the political choices the Court has had to make do not end with the determination that the primary purpose of the "effective" vote is controlling seats or with the selection of single-member districting as the mechanism for providing that control. In one sense, these were not even the most critical decisions to be made in devising standards for assessing claims of dilution, for, in itself, the selection of singlemember districting as a benchmark election plan will tell a judge little about the number of minority districts to create. Single-member districting tells a court "how" members of a minority are to control seats, but not "how many" seats they should be allowed to control.

But "how many" is the critical issue. Once one accepts the proposition that the effectiveness of votes is measured in terms of the control of seats, the core of any vote dilution claim is an assertion that the group in question is unable to control the "proper" number of seats-that is, the number of seats that the minority's percentage of the population would enable it to control in the benchmark "fair" system. The claim is inherently based on ratios between the numbers of the minority in the population and the numbers of seats controlled. As JUSTICE O'CONNOR has noted, "any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large." Gingles, 478 U. S., at 84 (opinion concurring in judgment). As a result, only a mathematical calculation can answer the fundamental question posed by a claim of vote dilution. And once again, in selecting the proportion that will be used to define the undiluted strength of a minor-

Howard & Howard) (arguing that the Court has developed a "substantive theory of representative government" and a theory of "allocating political power" in vote dilution cases).

903

ity-the ratio that will provide the principle for decision in a vote dilution case-a court must make a political choice.

The ratio for which this Court has opted, and thus the mathematical principle driving the results in our cases, is undoubtedly direct proportionality. Indeed, four Members of the Court candidly recognized in Gingles that the Court had adopted a rule of roughly proportional representation, at least to the extent proportionality was possible given the geographic dispersion of minority populations. See id., at 85, 91, 98-99 (O'CONNOR, J., concurring in judgment). While in itself that choice may strike us intuitively as the fairest or most just rule to apply, opting for proportionality is still a political choice, not a result required by any principle of law.

B

The dabbling in political theory that dilution cases have prompted, however, is hardly the worst aspect of our vote dilution jurisprudence. Far more pernicious has been the Court's willingness to accept the one underlying premise that must inform every minority vote dilution claim: the assumption that the group asserting dilution is not merely a racial or ethnic group, but a group having distinct political interests as well. Of necessity, in resolving vote dilution actions we have given credence to the view that race defines political interest. We have acted on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy and must have their own "minority preferred" representatives holding seats in elected bodies if they are to be considered represented at all.

It is true that in Gingles we stated that whether a racial group is "politically cohesive" may not be assumed, but rather must be proved in each case. See 478 U. S., at 51, 56. See also Growe, 507 U. S., at 40-41. But the standards we have employed for determining political cohesion have proved so insubstantial that this "precondition" does not present much of a barrier to the assertion of vote dilution

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claims on behalf of any racial groUp.12 Moreover, it provides no test-indeed, it is not designed to provide a test-of whether race itself determines a distinctive political community of interest. According to the rule adopted in Gingles, plaintiffs must show simply that members of a racial group tend to prefer the same candidates. See 478 U. S., at 61-67 (opinion of Brennan, J.). There is no set standard defining how strong the correlation must be, and an inquiry into the cause for the correlation (to determine, for example, whether it might be the product of similar socioeconomic interests rather than some other factor related to race) is unnecessary. Ibid. See also id., at 100 (O'CONNOR, J., concurring in judgment).13 Thus, whenever similarities in political preferences along racial lines exist, we proclaim that the cause of the correlation is irrelevant, but we effectively rely on the fact of the correlation to assume that racial groups have unique political interests.

12 Cf. Citizens for a Better Gretna v. Gretna, 834 F.2d 496, 501-502 (CA5 1987) (emphasizing that political cohesion under Gingles can be shown where a "significant number" of minority voters prefer the same candidate, and suggesting that data showing that anywhere from 49% to 67% of the members of a minority group preferred the same candidate established cohesion), cert. denied, 492 U. S. 905 (1989).

13JUSTICE O'CONNOR agreed with Justice Brennan in Gingles that, insofar as determining political cohesion was concerned, the cause for a correlation between race and candidate preference was irrelevant. She maintained, however, that evidence of the cause of the correlation would still be relevant to the overall vote dilution inquiry and particularly to the question whether a white majority will usually vote to defeat the minority's preferred candidate. See 478 U. S., at 100 (opinion concurring in judgment). The splintering of opinions in Gingles on this point has produced, at best, "uncertainty," Overton v. Austin, 871 F.2d 529, 538 (CA5 1989), and has allowed bivariate regression analysis-that is, an analysis that measures merely the correlation between race and candidate preference and that does not directly control for other factors-to become the norm for determining cohesion in vote dilution cases. See id., at 539. But cf. League of United Latin American Citizens v. Clements, 999 F.2d 831, 850-851 (CA5 1993), cert. denied, 510 U. S. 1071 (1994).

905

As a result, Gingles' requirement of proof of political cohesiveness, as practically applied, has proved little different from a working assumption that racial groups can be conceived of largely as political interest groups. And operating under that assumption, we have assigned federal courts the task of ensuring that minorities are assured their "just" share of seats in elected bodies throughout the Nation.

To achieve that result through the currently fashionable mechanism of drawing majority-minority single-member districts, we have embarked upon what has been aptly characterized as a process of "creating racially 'safe boroughs.'" United States v. Dallas County Comm'n, 850 F.2d 1433, 1444 (CAll 1988) (Hill, J., concurring specially), cert. denied, 490 U. S. 1030 (1989). We have involved the federal courts, and indeed the Nation, in the enterprise of systematically dividing the country into electoral districts along racial lines-an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of "political apartheid." Shaw, 509 U. S., at 647. See also id., at 657 (noting that racial gerrymandering "may balkanize us into competing racial factions"). Blacks are drawn into "black districts" and given "black representatives"; Hispanics are drawn into Hispanic districts and given "Hispanic representatives"; and so on. Worse still, it is not only the courts that have taken up this project. In response to judicial decisions and the promptings of the Justice Department, the States themselves, in an attempt to avoid costly and disruptive Voting Rights Act litigation, have begun to gerrymander electoral districts according to race. That practice now promises to embroil the courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we created. See, e. g., Shaw, supra; Hays v. Louisiana, 839 F. Supp. 1188 (WD La. 1993), appeal pending, No. 93-1539.

The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that

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strives for the ideal of a color-blind Constitution. "The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on." Wright v. Rockefeller, 376 U. S. 52, 66 (1964) (Douglas, J., dissenting). Despite Justice Douglas' warning sounded 30 years ago, our voting rights decisions are rapidly progressing toward a system that is indistinguishable in principle from a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race. Cf. id., at 63-66. Under our jurisprudence, rather than requiring registration on racial rolls and dividing power purely on a population basis, we have simply resorted to the somewhat less precise expedient of drawing geographic district lines to capture minority populations and to ensure the existence of the "appropriate" number of "safe minority seats."

That distinction in the practical implementation of the concept, of course, is immaterial.14 The basic premises underlying our system of safe minority districts and those behind the racial register are the same: that members of the racial group must think alike and that their interests are so distinct that the group must be provided a separate body of representatives in the legislature to voice its unique point of view. Such a "system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant." Id., at 66. Justice Douglas correctly predicted the results of state sponsorship of such a theory of representation: "When racial or religious

14 Cf. Lijphart, Proportionality by Non-PR Methods: Ethnic Representation in Belgium, Cyprus, Lebanon, New Zealand, West Germany, and Zimbabwe, in Electoral Laws and Their Political Consequences 113, 116 (B. Grofman & A. Lijphart eds. 1986) (describing methods other than separate electoral registers to allocate political power on the basis of ethnicity or race).

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lines are drawn by the State, ... antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan." Id., at 67. In short, few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act.

As a practical political matter, our drive to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions. "Black-preferred" candidates are assured election in "safe black districts"; white-preferred candidates are assured election in "safe white districts." Neither group needs to draw on support from the other's constituency to win on election day. As one judge described the current trend of voting rights cases: "We are bent upon polarizing political subdivisions by race. The arrangement we construct makes it unnecessary, and probably unwise, for an elected official from a white majority district to be responsive at all to the wishes of black citizens; similarly, it is politically unwise for a black official from a black majority district to be responsive at all to white citizens." Dallas County Comm'n, 850 F. 2d, at 1444 (Hill, J., concurring specially).

As this description suggests, the system we have instituted affirmatively encourages a racially based understanding of the representative function. The clear premise of the system is that geographic districts are merely a device to be manipulated to establish "black representatives" whose real constituencies are defined, not in terms of the voters who populate their districts, but in terms of race. The "black representative's" function, in other words, is to represent the "black interest." Cf. Shaw, 509 U. S., at 650 (recognizing that systems that "classify and separate voters by race" threaten "to undermine our system of representative democ-

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THOMAS, J., concurring in judgment

racy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole").

Perhaps not surprisingly, the United States has now adopted precisely this theory of racial group representation, as the arguments advanced in another case decided today, Johnson v. De Grandy, post, p. 997, should show. The case involved a claim that an apportionment plan for the Florida Legislature should have provided another Hispanic district in Dade County. Florida responded to the claim of vote dilution by arguing that the plan already provided Dade County Hispanics with seats in proportion to their numbers. According to the Solicitor General, this claim of proportionality should have been evaluated, not merely on the basis of the population in the Dade County area where the racial gerrymandering was alleged to have occurred, but on a statewide basis. It did not matter, in the Solicitor General's view, that Hispanic populations elsewhere in the State could not meet the Gingles geographic compactness test, see 478 U. S., at 50, and thus could not possibly have controlled districts of their own. After all, the Solicitor General reasoned, the Hispanic legislators elected from Hispanic districts in Dade County would represent, not just the interests of the Dade County Hispanics, but the interests of all the Hispanics in the State. Brief for United States in Johnson v. De Grandy, O. T. 1993, No. 92-519, p. 20. As the argument shows, at least some careful observers have recognized the racial gerrymandering in our vote dilution cases for what it is: a slightly less precise mechanism than the racial register for allocating representation on the basis of race.

C

While the results we have already achieved under the Voting Rights Act might seem bad enough, we should recognize that our approach to splintering the electorate into racially designated single-member districts does not by any means

909

mark a limit on the authority federal judges may wield to rework electoral systems under our Voting Rights Act jurisprudence. On the contrary, in relying on single-member districting schemes as a touchstone, our cases so far have been somewhat arbitrarily limited to addressing the interests of minority voters who are sufficiently geographically compact to form a majority in a single-member district. See Gingles, supra, at 49-50. There is no reason a priori, however, that our focus should be so constrained. The decision to rely on single-member geographic districts as a mechanism for conducting elections is merely a political choice-and one that we might reconsider in the future. Indeed, it is a choice that has undoubtedly been influenced by the adversary process:

In the cases that have come before us, plaintiffs have focused largely upon attacking multimember districts and have offered single-member schemes as the benchmark of an "undiluted" alternative.

But as the destructive effects of our current penchant for majority-minority districts become more apparent, cf. Shaw, supra, courts will undoubtedly be called upon to reconsider adherence to geographic districting as a method for ensuring minority voting power. Already, some advocates have criticized the current strategy of creating majority-minority districts and have urged the adoption of other voting mechanisms-for example, cumulative voting 15 or a system using

15 Under a cumulative voting scheme, a system commonly used in corporations to protect the interests of minority shareholders, see R. Clark, Corporate Law § 9.1.3, pp. 361-366 (1986), each voter has as many votes as there are posts to be filled, and the voter may cast as many of his votes as he wishes for a single candidate. The system thus allows a numerical minority to concentrate its voting power behind a given candidate without requiring that the minority voters themselves be concentrated into a single district. For a complete description of the mechanics of cumulative voting, see Zimmerman, The Federal Voting Rights Act and Alternative Election Systems, 19 Wm. & Mary L. Rev. 621, 654-657 (1978).

910

THOMAS, J., concurring in judgment

transferable votes 16-that can produce proportional results without requiring division of the electorate into racially segregated districts. Cf., e. g., Guinier 14-15, 94-101; Howard & Howard 1660; Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv. Civ. Rights-Civ. Lib. L. Rev. 173, 174-175,231236 (1989) (hereinafter Karlan); Taebel, Engstrom, & Cole, Alternative Electoral Systems As Remedies for Minority Vote Dilution, 11 Hamline J. of Public Law & Policy 19 (1990); Note, Reconciling the Right to Vote with the Voting Rights Act, 92 Colum. L. Rev. 1810, 1857-1865 (1992).

Such changes may seem radical departures from the electoral systems with which we are most familiar. Indeed, they may be unwanted by the people in the several States who purposely have adopted districting systems in their electoral laws. But nothing in our present understanding of the Voting Rights Act places a principled limit on the authority of federal courts that would prevent them from instituting a system of cumulative voting as a remedy under § 2, or even from establishing a more elaborate mechanism for securing proportional representation based on transferable votes.17 As some Members of the Court have already recog-

16 A system utilizing transferable votes is designed to ensure proportional representation with "mathematical exactness." Id., at 640. Under such a system, each voter rank orders his choices of candidates. To win, a candidate must receive a fixed quota of votes, which may be set by any of several methods. Ballots listing a given candidate as the voter's first choice are counted for that candidate until the candidate has secured the quota of votes necessary for election. Remaining first-choice ballots for that candidate are then transferred to another candidate, usually the one listed as the second choice on the ballot. See id., at 640-642. Like cumulative voting, the system allows a minority group to concentrate its voting power without requiring districting, and it has the additional advantage of ensuring that "surplus" votes are transferred to support the election of the minority voters' next preference.

17 Such methods of voting cannot be rejected out-of-hand as bizarre concoctions of Voting Rights Act plaintiffs. The system of transferable votes was a widely celebrated, although unsuccessful, proposal for English par-

911

nized, geographic districting is not a requirement inherent in our political system. See, e. g., Davis v. Bandemer, 478 U. S. 109, 159 (1986) (O'CONNOR, J., concurring in judgment) ("Districting itself represents a middle ground between winner-take-all statewide elections and proportional representation for political parties"); id., at 160 (noting that our current practice of accepting district-based elections as a given is simply a "political judgment"). Rather, districting is merely another political choice made by the citizenry in the drafting of their state constitutions. Like other political choices concerning electoral systems and models of representation, it too is presumably subject to a judicial override if it comes into conflict with the theories of representation and effective voting that we may develop under the Voting Rights Act.

Indeed, the unvarnished truth is that all that is required for districting to fall out of favor is for Members of this Court to further develop their political thinking. We should not be surprised if voting rights advocates encourage us to "revive our political imagination," Guinier, 14 Cardozo L. Rev., at 1137, and to consider "innovative and nontraditional remedies" for vote dilution, Karlan 221, for under our Voting Rights Act jurisprudence, it is only the limits on our "political imagination" that place restraints on the standards we may select for defining undiluted voting systems. Once we candidly recognize that geographic districting and other aspects of electoral systems that we have so far placed beyond question are merely political choices, those practices, too,

liamentary reform in the last century. See generally T. Hare, Election of Representatives (4th ed. 1873); J. S. Mill, Considerations on Representative Government (1861). And while it is an oddity in American political history, cumulative voting in an at-large system has been employed in some American jurisdictions. See Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in Choosing an Electoral System 191, 198 (A. Lijphart & B. Grofman eds. 1984); Hyneman & Morgan, Cumulative Voting in Illinois, 32 Ill. L. Rev. 12 (1937). See also Ill. Const., Art. IV, §§ 7, 8 (1870).

912

THOMAS, J., concurring in judgment

may fall under suspicion of having a dilutive effect on minority voting strength. And when the time comes to put the question to the test, it may be difficult indeed for a Court that, under Gingles, has been bent on creating roughly proportional representation for geographically compact minorities to find a principled reason for holding that a geographically dispersed minority cannot challenge districting itself as a dilutive electoral practice. In principle, cumulative voting and other non-district-based methods of effecting proportional representation are simply more efficient and straightforward mechanisms for achieving what has already become our tacit objective: roughly proportional allocation of political power according to race.

At least one court, in fact, has already abandoned districting and has opted instead for cumulative voting on a countywide basis as a remedy for a Voting Rights Act violation. The District Court for the District of Maryland recently reasoned that, compared to a system that divides voters into districts according to race, "[c]umulative voting is less likely to increase polarization between different interests," and that it "will allow the voters, by the way they exercise their votes, to 'district' themselves," thereby avoiding government involvement in a process of segregating the electorate. Cane v. Worcester County, 847 F. Supp. 369, 373 (1994). Cf. Guinier, 14 Cardozo L. Rev., at 1135-1136 (proposing a similar analysis of the benefits of cumulative voting); Karlan 236 (same). If such a system can be ordered on a countywide basis, we should recognize that there is no limiting principle under the Act that would prevent federal courts from requiring it for elections to state legislatures as well.

D

Such is the current state of our understanding of the Voting Rights Act. That our reading of the Act has assigned the federal judiciary the task of making the decisions I have described above should suggest to the Members of this Court

913

that something in our jurisprudence has gone awry.18 We would be mighty Platonic guardians indeed if Congress had granted us the authority to determine the best form of local government for every county, city, village, and town in America. But under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the "correct" theories of democratic representation, the "best" electoral systems for securing truly "representative" government, the "fairest" proportions of minority political influence, or, as respondents would have us hold today, the "proper" sizes for local governing bodies. We should be cautious in interpreting any Act of Congress to grant us power to make such determinations.

JUSTICE BLACKMUN suggests that, if we were to interpret the Act to allow challenges to the size of governmental bodies under § 2, the Court's power to determine the structure that local governing bodies must take would be bounded by the constraints that local customs provide in the form of benchmarks. Post, at 952-953. But as JUSTICE O'CONNOR rightly points out, such benchmarks are themselves arbitrarily selected and would provide no assured limits on judicial power. Ante, at 888-891. In my view, the local standards to which JUSTICE BLACKMUN points today are little different from the various standards to which the Court has resorted in the past as touchstones of undiluted voting systems. The appeal to such standards, which are necessarily arbitrarily chosen, should not serve to obscure the assumption in the Court's vote dilution jurisprudence of a sweeping

18JUSTICE STEVENS suggests that the discussion above outlines policy arguments best addressed to Congress. See post, at 957. In one sense, that is precisely my point. The issues I have discussed above involve policy decisions that are matters best left to Congress. Our interpretation of the Voting Rights Act, however, has required federal courts to take over the policymaking role in the area of voting rights and has forced judges to make decisions on matters beyond the normal sphere of judicial competence.

914

THOMAS, J., concurring in judgment

authority to select the electoral systems to be used by every governing body in each of the 50 States, and to do so based upon little more than the passing preference of five Members of this Court for one political theory over another.

A full understanding of the authority that our current interpretation of the Voting Rights Act assigns to the federal courts, and of the destructive effects that our exercise of that authority is presently having upon our body politic, compels a single conclusion: A systematic reexamination of our interpretation of the Act is required.

II

Section 2(a) of the Voting Rights Act provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote" on account of race, color, or membership in one of the language minority groups defined in the Act. 42 U. S. C. § 1973(a). Respondents contend that the terms "standard, practice, or procedure" should extend to cover the size of a governmental body. An examination of the text of § 2 makes it clear, however, that the terms of the Act do not reach that far; indeed, the terms of the Act do not allow many of the challenges to electoral mechanisms that we have permitted in the past. Properly understood, the terms "standard, practice, or procedure" in § 2(a) refer only to practices that affect minority citizens' access to the ballot. Districting systems and electoral mechanisms that may affect the "weight" given to a ballot duly cast and counted are simply beyond the purview of the Act.

A

In determining the scope of § 2(a), as when interpreting any statute, we should begin with the statutory language. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-

915

254 (1992). Under the plain terms of the Act, § 2(a) covers only a defined category of state actions. Only "voting qualification[s]," "prerequisite[s] to voting," or "standard[s], practice[s], or procedure[s]" are subject to challenge under the Act. The first two items in this list clearly refer to conditions or tests applied to regulate citizens' access to the ballot. They would cover, for example, any form of test or requirement imposed as a condition on registration or on the process of voting on election day.

Taken in isolation, the last grouping of terms-"standard, practice, or procedure"-may seem somewhat less precise. If we give the words their ordinary meanings, however-for they have no technical significance and are not defined in the Act-they would not normally be understood to include the size of a local governing body. Common sense indicates that the size of a governing body and other aspects of government structure do not comfortably fit within the terms "standard, practice, or procedure." Moreover, we need not simply treat the terms in isolation; indeed, it would be a mistake to do so. Cf. United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Reading the words in context strongly suggests that § 2(a) must be understood as referring to any standard, practice, or procedure with respect to voting. And thus understood, the terms of the section would not extend to the size of a governmental body; we would not usually describe the size or form of a governing authority as a "practice" or "procedure" concerning voting.

But under our precedents, we have already stretched the terms "standard, practice, or procedure" beyond the limits of ordinary meaning. We have concluded, for example, that the choice of a certain set of district lines is a "procedure," or perhaps a "practice," concerning voting subject to challenge under the Act, see Growe, 507 U. S., at 40-41, even though the drawing of a given set of district lines has nothing to do with the basic process of allowing a citizen to vote-that is,

916

THOMAS, J., concurring in judgment

the process of registering, casting a ballot, and having it counted. Similarly, we have determined that the use of multimember districts, rather than single-member districts, can be challenged under the Act. See Gingles, 478 U. S., at 46-51. Undoubtedly, one of the critical reasons we have read § 2 to reach such districting decisions is that the choice of one districting system over another can affect a minority group's power to control seats in the elected body. See ibid. In that respect, however, the districting practices we have treated as subject to challenge under the Act are essentially similar to choices concerning the size of a governing authority. Just as drawing district lines one way rather than another, or using one type of districting system rather than another, can affect the ability of a minority group to control seats, so can restricting the number of seats that are available. And if how districts are drawn is a "practice" concerning voting, why not conclude that how many districts are drawn is a "practice" as well?

To be sure, a distinction can be made between the size of a local governing body and a districting mechanism. After all, we would ordinarily think that the size of a government has greater independent significance for the functioning of the governmental body than the choice of districting systems apportioning representation. Interfering with the form of government, therefore, might appear to involve a greater intrusion on state sovereignty. But such distinctions between the size of a governing body and other potential "voting practices" do not, at bottom, depend upon how closely each is related to "voting," and thus they are not rooted in any way in the text of § 2(a). On the contrary, while it may seem obvious that the size of a government is not within the reach of the Act, if we look to the text of the statute for the limiting principle that confines the terms "standard, practice, or procedure" and excludes government size from their reach, we must conclude that the only line drawn in § 2 excludes many

917

"practices" that we have already decided are subject to challenge under the Act.

If we return to the Act to reexamine the terms setting out the actions regulated by § 2, a careful reading of the statutory text will reveal a good deal more about the limitations on the scope of the section than suggested above. The terms "standard, practice, or procedure" appear to have been included in § 2 as a sort of catchall provision. They seem phrased with an eye to eliminating the possibility of evasion.19 Nevertheless, they are catchall terms that round out a list, and a sensible and long-established maxim of construction limits the way we should understand such general words appended to an enumeration of more specific items. The principle of ejusdem generis suggests that such general terms should be understood to refer to items belonging to the same class that is defined by the more specific terms in the list. See, e. g., Cleveland v. United States, 329 U. S. 14, 18 (1946).

Here, the specific items described in § 2(a) ("voting qualification[sJ" and "prerequisite[sJ to voting") indicate that Congress was concerned in this section with any procedure, however it might be denominated, that regulates citizens' access to the ballot-that is, any procedure that might erect a barrier to prevent the potential voter from casting his vote. In describing the laws that would be subject to § 2, Congress focused attention upon provisions regulating the interaction between the individual voter and the voting process-on hurdles the citizen might have to cross in the form of "prerequisites" or "qualifications." The general terms in the section are most naturally understood, therefore, to refer to

19 Cf. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966) (noting that "Congress knew that some of the States ... had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees" and that "Congress had reason to suppose that these States might try similar maneuvers in the future").

918

THOMAS, J., concurring in judgment

any methods for conducting a part of the voting process that might similarly be used to interfere with a citizen's ability to cast his vote, and they are undoubtedly intended to ensure that the entire voting process-a process that begins with registration and includes the casting of a ballot and having the ballot counted-is covered by the Act. Cf. infra, at 919920. Simply by including general terms in § 2(a) to ensure the efficacy of the restriction imposed, Congress should not be understood to have expanded the scope of the restriction beyond the logical limits implied in the specific terms of the statute. Cf. Cleveland, supra, at 18 ("Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it").

Moreover, it is not only in the terms describing the practices regulated under the Act that § 2(a) focuses on the individual voter. The section also speaks only in the singular of the right of "any citizen" to vote. Giving the terms "standard, practice, or procedure" an expansive interpretation to reach potentially dilutive practices, however, would distort that focus on the individual, for a vote dilution claim necessarily depends on the assertion of a group right. Cf. Bandemer, 478 U. S., at 150-151 (O'CONNOR, J., concurring in judgment). At the heart of the claim is the contention that the members of a group collectively have been unable to exert the influence that their numbers suggest they might under an alternative system. Such a group right, however, finds no grounding in the terms of § 2(a).

Of course, the scope of the right that is protected under the Act can provide further guidance concerning the meaning of the terms "standard, practice, or procedure." Under the terms of the Act, only a "standard, practice, or procedure" that may result in the "denial or abridgement of the right ... to vote" is within the reach of § 2(a). But nothing in the language used in § 2(a) to describe the protection provided by the Act suggests that in protecting the "right to vote," the section was meant to incorporate a concept of vot-

919

ing that encompasses a concern for the "weight" or "influence" of votes. On the contrary, the definition of the terms "vote" and "voting" in § 14(c)(1) of the Act focuses precisely on access to the ballot. Thus, § 14(c)(1) provides that the terms "vote" and "voting" shall encompass any measures necessary to ensure "registration" and any "other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast." 42 U. S. C. § 1973l(c)(1).

It is true that § 14(c)(1) also states that the term "voting" "include[s] all action necessary to make a vote effective," ibid. (emphasis added), and the Court has seized on this language as an indication that Congress intended the Act to reach claims of vote dilution. See Allen, 393 U. S., at 566. But if the word "effective" is not plucked out of context, the rest of § 14(c)(1) makes clear that the actions Congress deemed necessary to make a vote "effective" were precisely the actions listed above: registering, satisfying other voting prerequisites, casting a ballot, and having it included in the final tally of votes cast. These actions are described in the section only as examples of the steps necessary to make a vote effective. See 42 U. S. C. § 1973l(c)(1). And while the list of such actions is not exclusive, the nature of all the examples that are provided demonstrates that as far as the Act is concerned, an "effective" vote is merely one that has been cast and fairly counted. See 393 U. S., at 590, n. 7 (Harlan, J., concurring in part and dissenting in part).

Reading the Act's prohibition of practices that may result in a "denial or abridgement of the right ... to vote" as protecting only access to the ballot also yields an interpretation that is consistent with the Court's construction of virtually identical language in the Fifteenth Amendment. The use of language taken from the Amendment suggests that the section was intended to protect a "right to vote" with the same scope as the right secured by the Amendment itself; certainly, no reason appears from the text of the Act for giving

920

THOMAS, J., concurring in judgment

the language a broader construction in the statute than we have given it in the Constitution. The Court has never decided, however, whether the Fifteenth Amendment should be understood to protect against vote "dilution." See Voinovich v. Quilter, 507 U. S. 146, 159 (1993). See also Beer v. United States, 425 U. S. 130, 142, n. 14 (1976) (noting that there is no decision of this Court holding a legislative apportionment plan violative of the Fifteenth Amendment).2o

While the terms of § 2(a) thus indicate that the section focuses only on securing access to the ballot, it might be argued that reenactment of § 2 in 1982 should be understood as an endorsement of the interpretation contained in cases such as Allen that the terms "standard, practice, or procedure" were meant to reach potentially dilutive practices. See Lorillard v. Pons, 434 U. S. 575, 580-581 (1978). It is true that we generally will assume that reenactment of specific statutory language is intended to include a "settled judicial interpretation" of that language. Pierce v. Underwood, 487 U. S. 552, 567 (1988). And while § 2 was amended in

20 Indeed, in Mobile v. Bolden, 446 U. S. 55 (1980), a plurality of the Court concluded that the Fifteenth Amendment did not address concerns of dilution at all. See id., at 65. Cf. id., at 84, n. 3 (STEVENS, J., concurring in judgment) (noting that the plurality had concluded that the Fifteenth Amendment "applies only to practices that directly affect access to the ballot and hence is totally inapplicable to the case at bar").

Contrary to JUSTICE STEVENS' suggestions, post, at 958, 962, Gomillion v. Lightfoot, 364 U. S. 339 (1960), does not indicate that the Fifteenth Amendment, in protecting the right to vote, incorporates a concern for anything beyond securing access to the ballot. The Gomillion plaintiffs' claims centered precisely on access: Their complaint was not that the weight of their votes had been diminished in some way, but that the boundaries of a city had been drawn to prevent blacks from voting in municipal elections altogether. Id., at 341. Gomillion thus "maintains the distinction between an attempt to exclude Negroes totally from the relevant constituency, and a statute that permits Negroes to vote but which uses the gerrymander to contain the impact of Negro suffrage." Allen v. State Bd. of Elections, 393 U. S. 544, 589 (1969) (Harlan, J., concurring in part and dissenting in part).

921

1982, the amended section did retain the same language that had appeared in the original Act regulating "standard[s], practice [s], or procedure[s]." 21 But it was hardly well settled in 1982 that Allen's broad reading of the terms "standard, practice, or procedure" in § 5 would set the scope of § 2 as a provision reaching claims of vote dilution.

On the contrary, in 1980 in Mobile v. Bolden, 446 U. S. 55, a plurality of the Court construed § 2 in a manner flatly inconsistent with the understanding that those terms were meant to reach dilutive practices. Emphasizing that the section tracked the language of the Fifteenth Amendment by prohibiting the use of practices that might "deny or abridge the right ... to vote," the Bolden plurality determined that § 2 was "intended to have an effect no different from that of the Fifteenth Amendment itself." Id., at 61. In the plurality's view, however, the Fifteenth Amendment did not extend to reach dilution claims; its protections were satisfied as long as members of racial minorities could "'register and vote without hindrance.'" Id., at 65. Bolden remained the last word from this Court interpreting § 2 at the time the section was amended in 1982. Cf. Rogers v. Lodge, 458 U. S. 613, 619, n. 6 (1982). Thus, the reenactment in the amended section of the same language covering any "standard, practice, or procedure" and the retention of virtually identical language protecting against the "denial or abridgement of the right ... to vote" can hardly be understood as an endorsement of a broad reading of the section as a provision reaching claims of vote dilution.22

21 The original § 2 provided that no "standard, practice, or procedure" should be imposed or applied "to deny or abridge the right ... to vote." Pub. L. 89-110, §2, 79 Stat. 437.

22 If anything, applying the Lorillard v. Pons, 434 U. S. 575 (1978), principle of construction might suggest that, by reenacting virtually the same language derived from the Fifteenth Amendment to define the basic interest protected by the Act, Congress intended to preserve the limitation that the Bolden plurality found implicit in that language. It is clear from the terms of the amendments passed in 1982 that where Congress sought

922

THOMAS, J., concurring in judgment

Finally, as our cases have shown, reading § 2(a) to reach beyond laws that regulate in some way citizens' access to the ballot turns the section into a command for courts to evaluate abstract principles of political theory in order to develop rules for deciding which votes are "diluted" and which are not. See generally supra, at 894-903. Common sense would suggest that we should not lightly interpret the Act to require courts to address such matters so far outside the normal bounds of judicial competence, and the mere use of three more general terms at the end of the list of regulated practices in § 2(a) cannot properly be understood to incorporate such an expansive command into the Act.

Properly understood, therefore, § 2(a) is a provision designed to protect access to the ballot, and in regulating "standard[s], practice [s], and procedure[s]," it reaches only "those state laws that [relate to] either voter qualifications or the manner in which elections are conducted." Allen, 393 U. S., at 591 (Harlan, J., concurring in part and dissenting in part). The section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted. The

to alter the understanding of the Act announced in Bolden, it did so explicitly in the text of the statute. As I explain more fully, infra, at 923-925, the 1982 amendments modified § 2 to eliminate the requirement under Bolden that § 2 plaintiffs, like plaintiffs under the Fifteenth Amendment, show that a challenged practice was adopted with a discriminatory intent, see 446 U. S., at 62-63, and replaced that test with specific language in § 2(b) setting a standard based simply on discriminatory results. See Pub. L. 97-205, § 3, 96 Stat. 134. Had Congress intended to alter the understanding that § 2 protects a concept of the "right to vote" that does not extend to prohibit vote dilution, it likely would have addressed that aspect of Bolden explicitly as well.

923

section does not cover, however, the choice of a multimember over a single-member districting system or the selection of one set of districting lines over another, or any other such electoral mechanism