The 1954 New Orleans City Charter provides for a seven-member
city council, with one member being elected from each of five
councilmanic districts, and two being elected by the voters of the
city at large. In 1961 the council, as it was required to do after
each decennial census, redistricted the city based on the 1960
census so that, in one councilmanic district, Negroes constituted a
majority of the population, but only about half of the registered
voters, and, in the other four districts, white voters outnumbered
Negroes. No Negro was elected to the council from 1960 to 1970.
After the 1970 census, the council devised a reapportionment plan,
under which there would be Negro population majorities in two
councilmanic districts and a Negro voter majority in one. Section 5
of the Voting Rights Act of 1965 prohibits a State or political
subdivision subject to § 4 of the Act (as New Orleans is) from
enforcing a proposed change in voting procedures unless it has
obtained a declaratory judgment from the District Court of the
District of Columbia that such change "does not have the purpose
and will not have the effect of denying or abridging the right to
vote on account of race or color" or has submitted the change to
the Attorney General and he has not objected to it. After the
proposed plan had been objected to by the Attorney General, New
Orleans sought a declaratory judgment in the District Court. That
court refused to allow the plan to go into effect, holding that it
would have the effect of abridging Negro voting rights, and that,
moreover, the plan's failure to alter the city charter provision
for two at-large seats in itself had such effect.
1. Since § 5's language clearly provides that it applies only to
proposed changes in voting procedures, and since the at-large seats
existed without change since 1954, those seats were not subject to
review under § 5. The District Court consequently erred in holding
that the plan could be rejected under § 5 solely because it did not
eliminate the two at-large seats. Pp. 425 U. S.
2. A legislative reapportionment that enhances the position of
racial minorities with respect to their effective exercise of
Page 425 U. S. 131
electoral franchise cannot violate § 5 unless the new
apportionment itself so discriminates racially as to violate the
Constitution. Applying this standard here, where, in contrast to
the 1961 apportionment under which none of the five councilmanic
districts had a clear Negro voting majority and no Negro had been
elected to the council, Negroes under the plan in question will
constitute a population majority in two of the five districts and a
clear voting majority in one, it is predictable that, by bloc
voting, one and perhaps two Negroes will be elected to the council.
The District Court therefore erred in concluding that the plan
would have the effect of denying or abridging the right to vote on
account of race or color within the meaning of § 5. Pp.
425 U. S.
, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
WHITE, J., filed a dissenting opinion, post,
425 U. S. 143
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 425 U. S. 145
STEVENS, J., took no part in the consideration or decision of the
MR. JUSTICE STEWART delivered the opinion of the Court.
Section 5 of the Voting Rights Act of 1965 [Footnote 1
Page 425 U. S. 132
a State or political subdivision subject to § 4 of the Act
] from enforcing
"any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect
Page 425 U. S. 133
to voting different from that in force or effect on November 1,
unless it has obtained a declaratory judgment from the District
Court for the District of Columbia that such change "does not have
the purpose and will not have the effect of denying or abridging
the right to vote on account of race or color" or has submitted the
proposed change to the Attorney General and the Attorney General
has not objected to it. The constitutionality of this procedure was
upheld in South Carolina v. Katzenbach, 383 U.
, and it is now well established that § 5 is
applicable when a State or political subdivision adopts a
legislative reapportionment plan. Allen v. State Board of
Elections, 393 U. S. 544
Georgia v. United States, 411 U.
The city of New Orleans brought this suit under § 5 seeking a
judgment declaring that a reapportionment of New Orleans'
councilmanic districts did not have the purpose or effect of
denying or abridging the right to vote on account of race or color.
] The District
Page 425 U. S. 134
entered a judgment of dismissal, holding that the new
reapportionment plan would have the effect of abridging the voting
rights of New Orleans' Negro citizens. 374 F.
. The city appealed the judgment to this Court,
claiming that the District Court used an incorrect standard in
assessing the effect of the reapportionment in this § 5 suit. We
noted probable jurisdiction of the appeal. 419 U.S. 822.
New Orleans is a city of almost 600,000 people. Some 55% of that
population is white, and the remaining 45% is Negro. Some 65% of
the registered voters are white, and the remaining 35% are Negro.
] In 1954, New
Orleans adopted a mayor-council form of government. Since that
time, the municipal charter has provided that the city council is
to consist of seven members, one to be elected from each of five
councilmanic districts, and two to be elected by the voters of the
city at large. The 1954 charter also requires an adjustment of the
boundaries of the five single member councilmanic districts
following each decennial census to reflect population shifts among
Page 425 U. S. 135
In 1961, the city council redistricted the city based on the
1960 census figures. That reapportionment plan established four
districts that stretched from the edge of Lake Pontchartrain on the
north side of the city to the Mississippi River on the city's south
side. The fifth district was wedge-shaped, and encompassed the
city's downtown area. In one of these councilmanic districts,
Negroes constituted a majority of the population, but only about
half of the registered voters. In the other four districts, white
voters clearly outnumbered Negro voters. No Negro was elected to
the New Orleans City Council during the decade from 1960 to
After receipt of the 1970 census figures, the city council
adopted a reapportionment plan (Plan I) that continued the basic
north-to-south pattern of councilmanic districts combined with a
wedge-shaped, downtown district. Under Plan I, Negroes constituted
a majority of the population in two districts, but they did not
make up a majority of registered voters in any district. The
largest percentage of Negro voters in a single district under Plan
I was 45.2%. When the city submitted Plan I to the Attorney General
pursuant to § 5, he objected to it, stating that it appeared to
"dilute black voting strength by combining a number of black voters
with a larger number of white voters in each of the five
districts." He also expressed the view that "the district lines
[were not] drawn as they [were] because of any compelling
governmental need," and that the district lines did "not reflect
numeric population configurations or considerations of district
compactness or regularity of shape."
Even before the Attorney General objected to Plan I, the city
authorities had commenced work on a second plan -- Plan II.
] That plan followed
the general north-to-south
Page 425 U. S. 136
districting pattern common to the 1961 apportionment and Plan I.
] It produced Negro
population majorities in two districts and a Negro voter majority
(52.6%) in one district. When Plan II was submitted to the Attorney
General, he posed the same objections to it that he had raised to
Plan I. In addition, he noted that "the predominantly black
neighborhoods in the city are located generally in an east to west
progression," and pointed out that the use of north-to-south
districts in such a situation almost inevitably would have the
effect of diluting the maximum potential impact of the Negro vote.
Following the rejection by the Attorney General of Plan II, the
city brought this declaratory judgment action in the United States
District Court for the District of Columbia.
The District Court concluded that Plan II would have the effect
of abridging the right to vote on account of race or color.
] It calculated
that, if Negroes could elect city councilmen in proportion to their
share of the city's registered voters, they would be able to choose
2.42 of the city's seven councilmen, and, if in proportion to their
share of the city's population, to choose 3.15 councilmen.
] But, under Plan
II, the District Court concluded
Page 425 U. S. 137
that, since New Orleans' elections had been marked by bloc
voting along racial lines, Negroes would probably be able to elect
only one councilman -- the candidate from the one councilmanic
district in which a majority of the voters ere Negroes. This
difference between mathematical potential and predicted. reality
was such that "the burden in the case at bar was at least to
demonstrate that nothing but the redistricting proposed by Plan II
was feasible." 374 F. Supp. at 393. The court concluded that
"[t]he City has not made that sort of demonstration; indeed, it
was conceded at trial that neither that plan nor any of its
variations was the City's sole available alternative."
As a separate and independent ground for rejecting Plan II, the
District Court held that the failure of the plan to alter the city
charter provision establishing two at-large seats had the effect in
itself of "abridging the right to vote . . . on account of race or
color." As the court put it:
"[T]he City has not supported the choice of at-large elections
by any consideration which would satisfy
Page 425 U. S. 138
the standard of compelling governmental interest, or the need to
demonstrate the improbability of its realization through the use of
single-member districts. These evaluations compel the conclusion
that the feature of the city's electoral scheme by which two
councilmen are selected at large has the effect of impermissibly
minimizing the vote of its black citizens; and the further
conclusion that, for this additional reason, the city's
redistricting plan does not pass muster."
at 402. (Footnotes omitted.)
The District Court therefore refused to allow Plan II to go into
effect. As a result, there have been no councilmanic elections in
New Orleans since 1970, and the councilmen elected at that time (or
their appointed successors) have remained in office ever since.
The appellants urge, and the United States on reargument of this
case has conceded, that the District Court was mistaken in holding
that Plan II could be rejected under § 5 solely because it did not
eliminate the two at-large councilmanic seats that had existed
since 1954. The appellants and the United States are correct in
their interpretation of the statute in this regard.
The language of § 5 clearly provides that it applies only to
proposed changes in voting procedures. "[D]iscriminatory practices
. . . instituted prior to November, 1964 . . . are not subject to
the requirement of preclearance [under § 5]." U.S. Commission on
Civil Rights, The Voting Rights Act: Ten Years After, p. 347. The
ordinance that adopted Plan II made no reference to the at-large
councilmanic seats. Indeed, since those seats had been established
in 1954 by the city charter, an ordinance could not have altered
them; any change in
Page 425 U. S. 139
the charter would have required approval by the city' voters.
The at-large seats, having existed without change since 1954, were
not subject to review in this proceeding under § 5. [Footnote 10
The principal argument made by the appellants in this Court is
that the District Court erred in concluding that the makeup of the
five geographic councilmanic districts under Plan II would have the
effect of abridging voting rights on account of race or color. In
evaluating this claim, it is important to note at the outset that
the question is not one of constitutional law, but of statutory
construction. [Footnote 11
A determination of when a legislative reapportionment has "the
effect of denying or abridging the right to vote on account of race
or color" must depend, therefore, upon the intent of
Page 425 U. S. 140
Congress in enacting the Voting Rights Act, and specifically §
The legislative history reveals that the basic purpose of
Congress in enacting the Voting Rights Act was "to rid the country
of racial discrimination in voting." South Carolina v.
383 U.S. at 383 U. S. 315
Section 5 was intended to play an important role in achieving that
"Section 5 was a response to a common practice in some
jurisdictions of staying one step ahead of the federal courts by
passing new discriminatory voting laws as soon as the old ones had
been struck down. That practice had been possible because each new
law remained in effect until the Justice Department or private
plaintiffs were able to sustain the burden of proving that the new
law, too, was discriminatory. . . . Congress therefore decided, as
the Supreme Court held it could, 'to shift the advantage of time
and inertia from the perpetrators of the evil to its victim' by
'freezing election procedures in the covered areas unless the
changes can be shown to be nondiscriminatory.'"
H.R.Rep. No. 94-196, pp. 57-58. (Footnotes omitted.) See
H.R.Rep. No. 439, 89th Cong., 1st Sess., 9-11, 26; S.Rep.
No. 162, 89th Cong., 1st Sess., pt. 3, pp. 6-9, 24; H.R.Rep. No.
91-397, pp. 6-8; H.R.Rep. No. 94-196, pp. 8-11, 57-60; S.Rep. No.
94-295, pp. 15-19; South Carolina v. Katzenbach, supra
383 U. S.
By prohibiting the enforcement of a voting-procedure change
until it has been demonstrated to the United States Department of
Justice or to a three-judge federal court that the change does not
have a discriminatory effect, Congress desired to prevent States
from "undo[ing] or defeat[ing] the rights recently won" by Negroes.
H.R.Rep. No. 91-397, p. 8. Section 5 was intended
Page 425 U. S. 141
"to insure that [the gains thus far achieved in minority
political participation] shall not be destroyed through new
[discriminatory] procedures and techniques."
S.Rep. No. 94-295, p. 19.
When it adopted a 7-year extension of the Voting Rights Act in
1975, Congress explicitly stated that
"the standard [under § 5] can only be fully satisfied by
determining on the basis of the facts found by the Attorney General
[or the District Court] to be true whether the ability of minority
groups to participate in the political process and to elect their
choices to office is augmented, diminished, or not
by the change affecting voting. . . ."
H.R.Rep. No. 9196, p. 60 (emphasis added). [Footnote 12
] In other words, the purpose of § 5
has always been to insure that no voting procedure changes would be
made that would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the
It is thus apparent that a legislative reapportionment that
enhances the position of racial minorities with respect to their
effective exercise of the electoral franchise can hardly have the
"effect" of diluting or abridging the right to vote on account of
race within the meaning of § 5. We conclude, therefore, that such
an ameliorative new legislative apportionment cannot violate § 5
unless the new apportionment itself so discriminates on the basis
of race or color as to violate the Constitution.
The application of this standard to the facts of the present
case is straightforward. Under the apportionment of 1961, none of
the five councilmanic districts had a clear Negro majority of
registered voters, and no Negro
Page 425 U. S. 142
has been elected to the New Orleans City Council while that
apportionment system has been in effect. Under Plan II, by
contarst, Negroes will constitute a majority of the population in
two of the five districts and a clear majority of the registered
voters in one of them. Thus, there is every reason to predict, upon
the District Court's hypothesis of bloc voting, that at least one
and perhaps two Negroes may well be elected to the council under
Plan II. [Footnote 13
was therefore error for the District Court to conclude that Plan II
"will . . . have the effect of denying or abridging the right to
vote on account of race or color" within the meaning of § 5 of the
Voting Rights Act. [Footnote
Page 425 U. S. 143
Accordingly, the judgment of the District Court is vacated, and
the case is remanded to that court for further proceedings
consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
Section 5 provides:
"Whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title based
upon determinations made under the first sentence of section
1973b(b) of this title are in effect shall enact or seek to
administer any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting different
from that, in force or effect on November 1, 1964, or whenever a
State or political subdivision with respect to which the
prohibitions set forth in section 1973b(a) of this title based upon
determinations made under the second sentence of section 1973b(b)
of this title are in effect shall enact or seek to administer any
voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from that,
in force or effect on November 1, 1968, or whenever a State or
political subdivision with respect to which the prohibitions set
forth in section 1973b(a) of this title based upon determinations
made under the third sentence of section 1973b(b) of this title are
in effect shall enact or seek to administer any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting different from that, in force or
effect on November 1, 1972, such State or subdivision may institute
an action in the United States District Court for the District of
Columbia for a declaratory judgment that such qualification,
prerequisite, standard, practice, or procedure does not have the
purpose and will not have the effect of denying or abridging the
right to vote on account of race or color, or in contravention of
the guarantees set forth in section 1973b(f)(2) of this title, and
unless and until the court enters such judgment no person shall be
denied the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or procedure:
That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such proceeding if
the qualification, prerequisite, standard, practice, or procedure
has been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made. Neither an affirmative indication by the Attorney
General that no objection will be made, nor the Attorney General's
failure to object, nor a declaratory judgment entered under this
section shall bar a subsequent action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or procedure. In
the event the Attorney General affirmatively indicates that no
objection will be made within the sixty-day period following
receipt of a submission, the Attorney General may reserve the right
to reexamine the submission if additional information comes to his
attention during the remainder of the sixty-day period which would
otherwise require objection in accordance with this section. Any
action under this section shall be heard and determined by a court
of three judges in accordance with the provisions of section 2284
of Title 28 and any appeal shall lie to the Supreme Court."
79 Stat. 439, as amended, 89 Stat. 402, 404, 42 U.S.C. § 1973c
(1970 ed., Supp. V).
42 U.S.C. § 1973b (1970 ed. and Supp. V). Louisiana and its
political subdivisions are subject to the provisions of § 4. 30
Fed.Reg. 9897 (1965).
The action was actually brought on behalf of the city of New
Orleans by six of the seven members of its city council. For
convenience, the appellants sometimes are referred to in this
opinion as New Orleans or the city.
The defendants in the suit were the United States and the
Attorney General of the United States. A group of Negro voters of
New Orleans intervened on the side of the defendants in the
The difference in the two figures is due in part to the fact
that proportionately more whites of voting age are registered to
vote than are Negroes, and in part to the fact that the age
structures of the white and Negro populations of New Orleans differ
significantly -- 72.3% of the white population is of voting age,
but only 57.1% of the Negro population is of voting age.
U.S. Civil Rights Commission, The Voting Rights Act:
Ten Years After, pp. 368, 383.
The decision to draft a new plan was in large part attributable
to the opposition to Plan I expressed by the residents of Algiers
-- that part of New Orleans located south of the Mississippi River.
The residents of Algiers have a common interest in promoting the
construction of an additional bridge across the river. They had
always been represented by one councilman, and they opposed Plan I
primarily because it divided Algiers among three councilmanic
The opposition to Plan I in Algiers, see n
was quieted in Plan II
by placing all of that section of the city in one councilmanic
The District Court did not address the question whether Plan II
was adopted with such a "purpose." See
This Court has, of course, rejected the proposition that members
of a minority group have a federal right to be represented in
legislative bodies in proportion to their number in the general
population. See Whitcomb v. Chavis, 403 U.
, 403 U. S. 149
It is worth noting, however, that, had the District Court applied
its mathematical calculations to the five seats that were properly
subject to its scrutiny, see
Part II-A of text,
it would have concluded on the basis of registered
voter figures that Negroes in New Orleans had a theoretical
potential of electing 1.7 of the five councilmen. A realistic
prediction would seem to be that, under the actual operation of
Plan II, at least one and perhaps two Negro councilmen would, in
fact, be elected. See infra
at 425 U. S.
At various points in its 40-page opinion, the District Court
described its understanding of the statutory criteria in terms
somewhat different from those quoted in the text above. Since, as
will hereafter appear, our understanding of the meaning of § 5 does
not in any event coincide with that of the District Court, no
purpose would be served by isolating and separately examining the
various verbalizations of the statutory criteria contained in its
In reaching this conclusion, we do not decide the question
reserved in Georgia v. United States, 411 U.
, 411 U. S. 535
n. 7, whether a district in a proposed legislative reapportionment
plan that is identical to a district in the previously existing
apportionment may be subject to review under § 5. The at-large
seats in the present case were not even part of the 1961 plan, let
alone of Plan II.
This Court has not before dealt with the question of what
criteria a legislative reapportionment plan must satisfy under § 5.
Last Term, in City of Richmond v. United States,
422 U. S. 358
Court had to decide under what circumstances § 5 would permit a
city to annex additional territory when that annexation would have
the effect of changing the city's Negro population from a majority
into a minority. The Court held that the annexation should be
approved under the "effect" aspect of § 5 if the system for
electing councilmen would likely produce results that "fairly
reflect[ed] the strength of the Negro community as it exists after
the annexation." 422 U.S. at 422 U. S. 371
The City of Richmond
case thus decided when a change with
an adverse impact on previous Negro voting power met the "effect"
standard of § 5. The present case, by contrast, involves a change
with no such adverse impact upon the former voting power of
MR. JUSTICE BRENNAN's dissenting opinion in
City of Richmond v. United States, supra
at 422 U. S. 388
"I take to be the fundamental objective of § 5 . . . the protection
levels of voting effectiveness for the black
population." (Emphasis in original.)
The intervenors have advised us of statistics indicating that,
as of 1974, the percentage of Negro registered voters in the city
as a whole increased to 38.2%. Assuming the accuracy of these
estimates, and that the increase has been proportionate in each
councilmanic district, it is quite possible that, by this time, not
only a majority of the population, but also a majority of the
registered voters in two of the Plan II districts, are Negroes.
See Taylor v. McKeithen,
499 F.2d 893, 896 (CA5).
It is possible that a legislative reapportionment could be a
substantial improvement over its predecessor in terms of lessening
racial discrimination, and yet nonetheless continue so to
discriminate on the basis of race or color as to be
unconstitutional. The United States has made no claim that Plan II
suffers from any such disability, nor could it rationally do
There is no decision in this Court holding a legislative
apportionment or reapportionment violative of the Fifteenth
Amendment. Cf. Wright v. Rockefeller, 376 U. S.
. The case closest to so holding is Gomillion v.
Lightfoot, 364 U. S. 339
which the Court found that allegations of racially motivated
gerrymandering of a municipality's political boundaries stated a
claim under that Amendment. The many cases in this Court involving
the Fourteenth Amendment's "one man, one vote" standard are not
relevant here. See Reynolds v. Sims, 377 U.
. But in at least four cases, the Court has
considered claims that legislative apportionments violated the
Fourteenth Amendment rights of identifiable racial or ethnic
minorities. See Fortson v. Dorsey, 379 U.
, 379 U. S. 439
Burns v. Richardson, 384 U. S. 73
384 U. S. 86
Whitcomb v. Chavis, 403 U. S. 124
403 U. S. 149
White v. Regester, 412 U. S. 755
Plan II does not remotely approach a violation of the
constitutional standards enunciated in those cases.
MR. JUSTICE WHITE, dissenting.
With MR. JUSTICE MARSHALL, I cannot agree that § 5 of the Voting
Rights Act of 1965 reaches only those changes in election
procedures that are more burdensome to the complaining minority
than preexisting procedures. As I understand § 5, the validity of
any procedural change otherwise within the reach of the section
must be determined under the statutory standard -- whether the
proposed legislation has the purpose or effect of abridging or
denying the right to vote based on race or color.
This statutory standard is to be applied here in light of the
District Court's findings, which are supported by the evidence and
are not now questioned by the Court. The findings were that the
nominating process in New Orleans' councilmanic elections is
subject to majority vote and "anti-single-shot" rules and that
there is a history of bloc racial voting in New Orleans, the
predictable result being that no Negro candidate will win in any
district in which his race is in the minority. In my view, where
these facts exist, combined with a segregated residential pattern,
§ 5 is not satisfied unless, to the extent practicable, the new
electoral districts afford the Negro minority the opportunity to
achieve legislative representation roughly proportional to the
Page 425 U. S. 144
in the community. Here, with a seven-member city council, the
black minority constituting approximately 45% of the population of
New Orleans would be entitled under § 5, as I construe it, to the
opportunity of electing at least three city councilmen -- more than
provided by the plan at issue here.
Bloc racial voting is an unfortunate phenomenon, but we are
repeatedly faced with the findings of knowledgeable district courts
that it is a fact of life. Where it exists, most often the result
is that neither white nor black can be elected from a district in
which his race is in the minority. As I see it, Congress has the
power to minimize the effects of racial voting, particularly where
it occurs in the context of other electoral rules operating to
muffle the political potential of the minority. I am also satisfied
that § 5 was aimed at this end, among others, and should be so
construed and applied. See City of Richmond v. United
States, 422 U. S. 358
422 U. S.
Minimizing the exclusionary effects of racial voting is possible
here because whites and blacks are not scattered evenly throughout
the city; to a great extent, each race is concentrated in
identifiable areas of New Orleans. But like bloc voting by race,
this too is a fact of life, well known to those responsible for
drawing electoral district lines. These lawmakers are quite aware
that the districts they create will have a white or a black
majority; and with each new district comes the unavoidable choice
as to the racial composition of the district. It is here that § 5
intervenes to control these choices to the extent necessary to
afford the minority the opportunity of achieving fair
representation in the legislative body in question.
Applying § 5 in this way would at times require the drawing of
district lines based on race; but Congress has this power where
deliberate discrimination at the polls
Page 425 U. S. 145
and the relevant electoral laws and customs have effectively
foreclosed Negroes from enjoying a modicum of fair representation
in the city council or other legislative body.
Since Plan II at issue in this case falls short of satisfying §
5, and since I agree with MR. JUSTICE MARSHALL that the city has
failed to present sufficiently substantial justifications for its
proposal, I respectfully dissent and would affirm the judgment of
the District Court.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
Over the past 10 years, the Court has, again and again, read the
jurisdiction of § 5 of the Voting Rights Act of 1965, 79 Stat. 439,
as amended, 89 Stat. 402, 404, 42 U.S.C. § 1973c (1970 ed., Supp.
V), expansively so as "to give the Act the broadest possible
scope," and to reach "any state enactment which altered the
election law of a covered State in even a minor way." Allen v.
State Board of Elections, 393 U. S. 544
393 U. S. 567
566 (1969). See also Georgia v. United States,
411 U. S. 526
(1973); Perkins v. Matthews, 400 U.
(1971); South Carolina v. Katzenbach,
383 U. S. 301
(1966). While we have settled the contours of § 5's jurisdiction,
however, we have yet to devote much attention to defining § 5's
substantive force within those bounds. Thus, we are faced today for
the first time with the question of § 5's substantive application
to a redistricting plan. Essentially, we must answer one question:
when does a redistricting plan have the effect of "abridging" the
right to vote on account of race or color?
The Court never answers this question. Instead, it produces a
convoluted construction of the statute that transforms the single
question suggested by § 5 into three questions, and then provides
precious little guidance in answering any of them.
Page 425 U. S. 146
Under the Court's reading of § 5, we cannot reach the abridgment
question unless we have first determined that a proposed
redistricting plan would "lead to a retrogression in the position
of racial minorities," ante
at 425 U. S. 141
in comparison to their position under the existing plan. The
Court's conclusion that § 5 demands this preliminary inquiry is
simply wrong; it finds no support in the language of the statute
and disserves the legislative purposes behind § 5.
Implicitly admitting as much, the Court adds another question,
this one to be asked if the proposed plan is not "retrogressive":
whether "the new apportionment itself so discriminates on the basis
of race or color as to violate the Constitution." Ante
425 U. S. 141
This addition does much -- in theory, at least -- to salvage the
Court's test, since our decisions make clear that the proper test
of abridgment under § 5 is essentially the constitutional
Still, I cannot accept the Court's awkward construction. Not
only is the Court's multiple step inquiry unduly cumbersome and an
unnecessary burden to place upon the Attorney General and the
District Court for the District of Columbia, but the Court dilutes
the meaning of unconstitutionality in this context to the point
that the congressional purposes in § 5 are no longer served, and
the sacred guarantees of the Fourteenth and Fifteenth Amendments
emerge badly battered. And, in the process, the Court approves a
blatantly discriminatory districting plan for the city of New
Orleans. I dissent.
The Fifteenth Amendment provides:
"The right of citizens of the United States to vote shall not be
denied or abridged by the United States
Page 425 U. S. 147
or by any State on account of race, color, or previous condition
U.S.Const., Amdt. 15, § 1. Although the Amendment is
self-enforcing, litigation to secure the rights it guarantees
proved time-consuming and ineffective, while the will of those who
resisted its command was strong and unwavering. Finally Congress
decided to intervene. In 1965, it enacted the Voting Rights Act,
designed "to rid the country of racial discrimination in voting."
South Carolina v. Katzenbach,
383 U.S. at 383 U. S. 315
See also id.
at 383 U. S.
-315. The Act proclaims that its purpose is "to
enforce the fifteenth amendment to the Constitution . . . ," 79
Stat. 437; the heart of its enforcement mechanism is § 5. In
language that tracks that of the Fifteenth Amendment, § 5 declares
that no State covered by the Act shall enforce any plan with
respect to voting different from that in effect on November 1,
1964, unless the Attorney General or a three-judge District Court
in the District of Columbia declares that such plan
"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 (1970 ed., Supp. V). [Footnote 2/1
While the substantive reach of § 5 is somewhat broader than that
of the Fifteenth Amendment in at least one regard -- the burden of
proof is shifted from discriminatee
Page 425 U. S. 148
to discriminator [Footnote 2/2
-- § 5 is undoubtedly tied to the standards of the Constitution.
] Thus, it is
questionable whether the "purpose and effect" language states
anything more than the constitutional standard, [Footnote 2/4
] and it is
Page 425 U. S. 149
clear that the "denying or abridging" phrase does no more than
directly adopt the language of the Fifteenth Amendment.
In justifying its convoluted construction of § 5, however, the
Court never deals with the fact that, by its plain language, § 5
does no more than adopt, or arguably expand, [Footnote 2/5
] the constitutional standard. Since it has
Page 425 U. S. 150
been held, or even suggested, that the constitutional standard
requires an inquiry into whether a redistricting plan is
"ameliorative" or "retrogressive," a fortiori
there is no
basis for so reading § 5. While the Court attempts to provide a
basis by relying on the asserted purpose of § 5 -- to preserve
present Negro voting strength [Footnote
] -- it is wholly unsuccessful. What superficial credibility
the argument musters is achieved by ignoring not only the statutory
language, but also at least three other purposes behind § 5.
Page 425 U. S. 151
Thus, the legislative history of the Voting Rights Act makes
clear, and the Court assiduously ignores, that § 5 was designed to
preclude new districting plans that "perpetuate discrimination,"
] to prevent covered
Page 425 U. S. 152
from "circumventing the guarantees of the 15th amendment" by
switching to new, and discriminatory, districting plans the moment
litigants appear on the verge of having an existing one declared
unconstitutional, [Footnote 2/9
and promptly to end discrimination in voting by pressuring covered
jurisdictions to remove all vestiges of discrimination from their
enactments before submitting them for preclearance. [Footnote 2/10
] None of these purposes is
furthered by an inquiry into whether a proposed districting plan is
"ameliorative" or "retrogressive." Indeed, the statement of these
purposes is alone sufficient to demonstrate the error of the
Page 425 U. S. 153
All the purposes of the statute are met, however, by the inquiry
§ 5's language plainly contemplates: whether, in absolute terms,
the covered jurisdiction can show that its proposed plan meets the
constitutional standard. Because it is consistent with both the
statutory language and the legislative purposes, this is the proper
construction of the provision. Thus, it is the effect of the plan
itself, rather than the effect of the change in plans, that should
be at issue in a § 5 proceeding. [Footnote 2/11
Ultimately, the Court admits as much by adding an inquiry into
whether the proposed plan, even if "ameliorative," is
constitutional. After this admission, I cannot understand why the
Court bothers at all with its preliminary inquiry into the nature
of the change of plans, since the inquiry not only adds nothing,
but will, I fear, prove to be a time-consuming distraction from the
important business of assessing the constitutionality of the
proposed plan. [Footnote 2/12
Except for this unnecessary step, however,
Page 425 U. S. 154
the Court's final reading of the statute, on its face, no more
than duplicates my own. [Footnote
] Nonetheless, I still do not accept the Court's approach.
After properly returning
Page 425 U. S. 155
the constitutional inquiry to the § 5 proceeding, the Court
inexplicably tosses off the question in a footnote, and never
undertakes the analysis that both our constitutional cases and our
§ 5 cases have demanded. [Footnote
] This ultimate denigration of the constitutional standard
is a result far short of the promise Congress held out in
Page 425 U. S. 156
enacting, and reenacting, the Voting Rights Act, and it is one
in which I cannot join.
The proper test in § 5 redistricting cases is preordained by our
prior cases, which are ignored today by the Court. As suggested
above, we have repeatedly recognized the relevance of
constitutional standards to the proper construction of § 5. Thus,
we have held that, in passing that provision, "Congress
intended to adopt the concept of voting articulated in Reynolds
v. Sims, 377 U. S. 533
(1964), and protect Negroes against a dilution of their voting
power.'" Perkins v. Matthews, 400 U.S. at 400 U. S. 390,
quoting Allen v. State Board of Elections, 393 U.S. at
393 U. S. 588
(opinion of Harlan, J.). See also Georgia v. United
States, 411 U.S. at 411 U. S.
532-533; Allen v. State Board of Elections,
supra at 393 U. S.
565-566, 393 U. S. 569.
[Footnote 2/15] In the Fourteenth
Amendment Reynolds line of cases, we have made clear that
dilution of voting power refers to resulting voting strength that
is something less
Page 425 U. S. 157
than potential (i.e.,
proportional) power, not to a
reduction of existing power. White v. Regester,
412 U. S. 755
412 U. S.
-766 (1973); Whitcomb v. Chavis,
403 U. S. 124
403 U. S. 19
(1971). Nonetheless, we have also acknowledged that a showing of
less than proportional representation of Negroes by Negro-elected
representatives is not alone sufficient to prove unconstitutional
"To sustain such claims [of dilution], it is not enough that the
racial group allegedly discriminated against has not had
legislative seats in proportion to its voting potential. The
plaintiffs' burden is to produce evidence to support findings that
the political processes leading to nomination and election were not
equally open to participation by the group in question -- that its
members had less opportunity than did other residents in the
district to participate in the political processes and to elect
legislators of their choice."
White v. Regester, supra
at 412 U. S.
-766. See also Whitcomb v. Chavis, supra
403 U. S. 149
It is this constitutionally based concept of dilution that we
have held to govern in § 5 proceedings. The concept may be readily
transferred to the § 5 context simply by adjusting for the shifted
burden of proof. Thus, if the proposed redistricting plan
underrepresents minority group members, the burden is on the
Page 425 U. S. 158
jurisdiction to show that "the political processes leading to
nomination and election were . . . equally open to participation by
the group in question." [Footnote
] If the jurisdiction cannot make such a showing, then the
proposed plan must be rejected, unless compelling reasons for its
adoption can be demonstrated. [Footnote 2/18
Application of these standards to the case before us is
straightforward. Preliminarily, while I agree with the Court that
the two at-large seats on the New Orleans City Council are not
themselves before the Court for approval, and cannot serve as an
independent basis for the rejection of Plan II, I do not think Plan
II should be assessed without regard to the seven-member council it
is designed to fill. Proportional representation of Negroes among
the five district seats on the council does not assure Negroes
proportional representation on the entire council when, as the
District Court found, the two at-large seats will be occupied by
Page 425 U. S. 159
The Court's approach of focusing only on the five districts
would allow covered municipalities to conceal discriminatory
changes by making them a step at a time, and sending one two- or
three-district alteration after another to the Attorney General for
approval. If nothing beyond the districts actually before him could
be considered, discriminatory effects could be camouflaged and the
prophylactic purposes of the Act readily evaded. [Footnote 2/19
Thus, the District Court correctly began by considering the
seven-member council and a districting plan that, given New
Orleans' long history of racial bloc voting, [Footnote 2/20
] allows Negroes the expectation of
no more than one seat (14 of the council), if that, in a city with
a 34.5% Negro voting population. Manifestly, the plan serves to
underrepresent the Negro voting population. The District Court
then, properly, turned to consider whether Negroes are excluded
from full participation in the political processes in New Orleans.
The court found considerable
Page 425 U. S. 160
evidence of both past and present exclusion, none of which is
seriously contested here. [Footnote
The court found that Louisiana's majority vote requirement and
"anti-single-shot" requirement operate, as a practical matter, to
defeat Negroes in any district in which they do not constitute a
majority, [Footnote 2/22
residual effects of Louisiana's long history of racial
discrimination not only in voting, but also in public schools,
public assemblies, public recreational facilities, public
transportation, housing, and employment, remain; and that city
officeholders have generally been unresponsive to the needs of the
Negro community. The court looked to the many tactics that, until
recently, had been employed with remarkable success to keep Negroes
from voting in the State. See Louisiana v. United States,
380 U. S. 145
380 U. S.
-150 (1965). And the court found that Negro access to
the political process is even further narrowed by the fact that
candidates in the all-important Democratic primary run on tickets.
For a city council candidate to win nomination, which is tantamount
to victory in the general election, it is critical to be placed on
the ticket of the winning, always white, mayoral candidate. Negro
candidates for city council, however, have never been placed on
such a ticket. Indeed, no Negro has ever
Page 425 U. S. 161
been elected to the city council, and the court found that, on
the rare occasions when a Negro has been elected to any office in
the city, it has been because of the support of white candidates or
of the white political organization, not because of the power of
the Negro electorate. These findings plainly support the District
Court's conclusion that the political processes of New Orleans are
not open to Negroes on an equal basis with whites.
Since Negroes are underrepresented by Plan II and have been
denied equal access to the political processes in New Orleans, Plan
II infringes upon constitutionally protected rights, and only a
compelling justification can save the plan. The very nature of the
Negro community in New Orleans and the manner of its distortion by
Plan II immediately place the city's explanations in a suspect
light. The Negro community is not dispersed, but rather is
collected in a concentrated curving band that runs roughly
east-west. The districts in Plan II run north-south, and divide the
Negro community into five parts. Counsel for intervenor Jackson
vividly described the effect of this division at oral argument:
"You can walk from Jefferson Parish throughout the city for
eight or ten miles through the St. Bernard Parish line and not see
a white face along that band, that black belt, that parallels the
river in a curve fashion throughout the city. White people live in
the very wealthy sections of town out by the lake and along St.
Charles Avenue to the river. The rest is left over for blacks, and
these are heavy concentrations, and that plan devised by the City
Council slices up that population like so many pieces of bologna. .
Tr. of Oral Arg. 30. As Jonathan A. Eckert, the council staff
Page 425 U. S. 162
responsible for drafting Plan II, conceded in the District
Court, the "inevitable result" of Plan II's north-south orientation
is "to have districts in which blacks are generally in the
minority, or, at the most, in a bare majority." 2 App. 346.
New Orleans relies on seven goals that it claims mandate a
north-south scheme such as Plan II. The city's own belief in this
conclusion is questionable in light of Mr. Eckert's testimony in
the District Court that he and his staff had drafted at least two
east-west plans that satisfied them. 1 App. 336-337. In any case,
however, the asserted goals, whether taken alone or in combination,
do not establish a compelling justification for the plan. One
claimed purpose is to prevent dilution of the vote of minority
groups. Plan II plainly does not achieve this goal. Two other
asserted aims are to achieve substantial numerical equality among
the five districts and to keep the resultant districts compact and
contiguous. Both aims can be accomplished by any number of
east-west plans as well. Three more proffered justifications are to
preserve ward and precinct lines, natural boundaries, and man-made
boundaries. But there are findings that ward lines cannot be
observed in any case because of one-person, one-vote restrictions,
and that precincts are sufficiently small that their integrity can
be honored in east-west districts. This latter fact minimizes any
adverse effects of violating natural and man-made boundaries,
except to the extent that they divide communities of different
social or economic interests. And Plan II only erratically keeps
such communities intact.
It is only the seventh of the proffered goals that, if
compelling, mandates a north-south scheme: keeping incumbents apart
in the new districts so that they will
Page 425 U. S. 163
not have to run against one another for reelection. [Footnote 2/23
] Four of the five district
councilmen live in an east-west line along the lake in the northern
part of the city. East-west districts would place all four in the
same one or two districts, 1 App. 125, 232, 235, and north-south
lines are therefore necessary if these councilmen are to remain
apart. 2 App 344. While the desire to keep incumbents in separate
districts may have merit in some contexts, it surely cannot stand
alone to justify the substantial dilution of minority voting rights
Thus, the city has failed to show an acceptable justification
for the racially dilutive effect of Plan II. Accordingly, the
District Court correctly concluded that appellants failed to
demonstrate that Plan II would not have the effect of abridging the
right to vote on account of race, and correctly denied the
requested declaratory judgment. [Footnote 2/24
Section 5 actually requires that "any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting" different from that in effect on November 1,
1964, be approved by the Attorney General or the District Court for
the District of Columbia. 42 U.S.C. § 1973c (1970 ed., Supp. V). We
have held that a redistricting plan is a "standard, practice, or
procedure with respect to voting" within the meaning of § 5.
Georgia v. United States, 411 U.
We upheld the validity of the shifted burden of proof in
South Carolina v. Katzenbach, 383 U.
, 383 U. S. 335
"The Act suspends new voting regulations pending scrutiny by
federal authorities to determine whether their use would violate
the Fifteenth Amendment."
at 383 U. S.
The Court's decisions relating to the relevance of purpose
and/or effect analysis in testing the constitutionality of
legislative enactments are somewhat less than a seamless web. The
possible theoretical approaches are three: (1) purpose alone is the
test of unconstitutionality, and effect is irrelevant, or relevant
only insofar as it sheds light on purpose; (2) effect alone is the
test, and purpose is irrelevant; and (3) purpose or effect, either
alone or in combination, is sufficient to show unconstitutionality.
At various times in recent years, the Court has seemed to adopt
each of these approaches.
In the two Fifteenth Amendment redistricting cases, Wright
v. Rockefeller, 376 U. S. 52
(1964), and Gomillion v. Lightfoot, 364 U.
(1960), the Court suggested that legislative
purpose alone is determinative, although language in both cases may
be isolated that seems to approve some inquiry into effect insofar
as it elucidates purpose. See 376 U.S. at 376 U. S. 52; 364
U.S. at 364 U. S.
See also 376 U.S. at 376 U. S. 73
(Goldberg, J., dissenting). McGowan v. Maryland,
366 U. S. 420
366 U. S. 453
(1961), an equal protection-First Amendment case, expressly states
that effect is of relevance in imputing an improper purpose, but
that legislation is invalidated only for having such a purpose. And
City of Richmond v. United States, 422 U.
, 422 U. S.
-379 (1975), suggests that bad purpose may invalidate
a law under the Fifteenth Amendment even if there is no
unconstitutional effect at all.
Completely contrary to these cases are those that hold that
legislative purpose is wholly irrelevant to the constitutionality
of legislation -- indeed, that purpose may not be examined at all
-- and that a statute may be invalidated only if it has an
unconstitutional effect. Palmer v. Thompson, 403 U.
, 403 U. S.
-225 (1971), and United States v. O'Brien,
391 U. S. 367
391 U. S.
-385 (1968), both vigorously attack purpose analysis
and assert that Gomillion
was decided as it was only
because the statute in question had an unlawful effect.
Between these two positions are the cases that hold that either
an impermissible purpose or an impermissible effect may alone be
sufficient to invalidate a law. Board of Education v.
Allen, 392 U. S. 236
392 U. S. 243
(1968); Abington School District v. Schempp, 374 U.
, 374 U. S. 222
(1963). While there is no need here to synthesize these three
positions and the various cases, if indeed a synthesis is possible,
it should be clear that the language of purpose and effect selected
by Congress for use in § 5 is not necessarily an expansion of the
constitutional standard. Congress did no more than adopt the third
of the tests that the Court itself has juggled over the years,
Ely, Legislative and Administrative
Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970).
We have recognized that § 5 of the Fourteenth Amendment gives
Congress the power to expand the substantive reach of that
Amendment. Katzenbach v. Morgan, 384 U.
(1966). Undoubtedly, § 2 of the Fifteenth
Amendment, under which the Voting Rights Act was enacted, confers
similar power upon Congress with respect to the substantive reach
of the Fifteenth Amendment. Thus, to the extent, if any, that
analysis for purpose or for effect is not independently required
for resolution of the constitutional question, see
fn2/4|>n. 4, supra,
Congress may be said to
have expanded the constitutional inquiry in § 5 of the Voting
Rights Act. Insofar as redistricting legislation is concerned,
however, I believe a showing of purpose or of effect is alone
sufficient to demonstrate unconstitutionality, and so I believe
that, in this context, Congress enacted no more than the
constitutional standard. Evaluation of the purpose of a legislative
enactment is just too ambiguous a task to be the sole tool of
constitutional analysis. See Palmer v. Thompson, supra
403 U. S.
-225; United States v. O'Brien, supra,
391 U. S.
-385. Therefore, a demonstration of effect ordinarily
should suffice. If, of course, purpose may conclusively be shown,
it too should be sufficient to demonstrate a statute's
While the Court does quote language that suggests some of the
other purposes that I see in the statute, ante
425 U. S. 140
when it comes to giving substantive content to § 5, the Court
relies solely on the purpose suggested in the text.
It may be that this single purpose looms so large to the Court
because it thinks it would be counterproductive to bar enforcement
of a proposed plan, even if discriminatory, that is at all less
discriminatory than the preexisting plan, which would otherwise
remain frozen in effect. While this argument has superficial
appeal, it is ultimately unrealistic, because it will be a rare
jurisdiction that can retain its preexisting apportionment after
the rejection of a modification by the Attorney General or District
Court. Jurisdictions do not undertake redistricting without reason.
In this case, for instance, the New Orleans City Charter requires
redistricting every 10 years. If the plan before us now were
disapproved, New Orleans would have to produce a new one or amend
its charter. In other cases, redistricting will have been
constitutionally compelled by our one-person, one-vote decisions.
Reynolds v. Sims, 377 U. S. 533
(1964). The virtual necessity of prompt redistricting argues
strongly in favor of rejecting "ameliorative" but still
discriminatory redistricting plans. The jurisdictions will
eventually have to return with a nondiscriminatory plan.
Equally unsuccessful is the Court's attempt to paint the
"ameliorative" changes in this case as dramatic. Negroes constitute
45% of the population of New Orleans and 34.5% of the city's
registered voters. Under the 1961 redistricting plan currently in
effect in New Orleans, that population is distributed as
Population Registered Voters
District % Negro % Negro
A 31.6 22.7
B 62.2 50.2
C 40.2 24.6
D 43.7 36.3
E 49.4 42.8
App. 621. Under Plan II, which is at issue in this lawsuit, the
same population is distributed in this manner:
Population Registered Voters
District % Negro % Negro
A 29.1 22.6
B 64.1 52.6
C 35.8 23.3
D 43.5 36.8
E 50.6 43.2
Thus, the positive change that convinces the Court that no
inquiry into possible "abridgment" is necessary is the change from
a majority of registered voters in District B of 50.2% (which the
Court fails to mention) to what the Court calls a "clear" majority
(although the Court has no idea what percentage of registered Negro
voters actually vote) in that district of 52.6%. The Court also
emphasizes that now Negroes constitute a majority of the population
in two districts, whereas, under the existing plan, they are a
majority in only one district. This beneficial change is
accomplished by the shift from a minority of 49.4% of the
population in District E to a majority in that district of
H.R.Rep. No. 91-397, pp. 6-7 (1969). See also
No. 439, 89th Cong., 1st Sess., 111 (1965); S.Rep. No. 162, 89th
Cong., 1st Sess., pt. 3, pp. 8, 12 (1965); South Carolina v.
383 U.S. at 383 U. S.
-316, 383 U. S.
S.Rep. No. 94-295, p. 15 (1975). See also
at 10-11. It is for this reason that the
existing plan remains "frozen" in effect while the proposed plan is
submitted for approval. Thus, any constitutional litigation may
proceed without interruption, unless the new plan is itself found
to be nondiscriminatory and is substituted. See
No. 94-196, p. 58 (1975). Either way, the litigant obtains the
relief he seeks -- a nondiscriminatory apportionment.
The pressure of having proposed plans judged by rigorous
standards and the fear of litigation over new plans were thought to
encourage covered jurisdictions to end all discrimination in
"The preclearance procedure -- and this is critical -- serves
psychologically to control the proliferation of discriminatory laws
and practices because each change must first be federally reviewed.
Thus section 5 serves to prevent discrimination before it
115 Cong.Rec. 38486 (1969) (remarks of Rep. McCulloch). See
at 38517 (remarks of Rep. Anderson); U.S. Commission
on Civil Rights, The Voting Rights Act: Ten Years After, pp. 30-31
The Act's limited term is proof that Congress intended to secure
prompt, and not gradual, relief. Originally, the Act was intended
to be in effect for only five years. While it has been twice
extended, each extension was also for only a few years: five more
years in 1970, and seven more years in 1975. Thus, it cannot be
argued that the Act contemplated slow forward movement, which the
Court's construction sanctifies, rather than a quick remedial
While I read "abridge" in both § 5 and the Fifteenth Amendment
as primarily involving an absolute assessment of dilution of Negro
voting power from its potential, I do not hold that recognition of
a relative change is absolutely irrelevant to this determination.
For instance, it may often be useful to glean some indication of
purpose from a minority's relative position under the existing and
proposed plans. Moreover, there will be circumstances --
annexations, for example -- where dilution can fairly be measured
only in comparison to the prior scheme. See City of Richmond v.
422 U.S. at 422 U. S. 378
Cf. Gomillion v. Lightfoot, 364 U.
Today the Court finds it simple to conclude that Plan II is
"ameliorative," but it will not always be so easy to determine
whether a new plan increases or decreases Negro voting power
relative to the prior plan. To the contrary, I believe the Court's
test will prove unduly difficult of application and excessively
demanding of judicial energies.
For instance, the Court today finds that an increase in the size
of the Negro majority in one district, with a concomitant increased
likelihood of electing a delegate, conclusively shows that Plan II
is ameliorative. Will that always be so? Is it not as common for
minorities to be gerrymandered into the same district as into
separate ones? Is an increase in the size of an existing majority
ameliorative or retrogressive? When the size of the majority
increases in one district, Negro voting strength necessarily
declines elsewhere. Is that decline retrogressive? Assuming that
the shift from a 50.2% to a 52.6% majority in District B in this
case is ameliorative, and is not outweighed by the simultaneous
decrease in Negro voting strength in Districts A and C, when would
an increase become retrogressive? As soon as the majority becomes
"safe"? When the majority is achieved by dividing preexisting
concentrations of Negro voters?
Moreover, the Court implies, ante
at 425 U. S. 139
n. 11, by its attempt to harmonize its holding today with City
of Richmond v. United States, supra,
that this preliminary
inquiry into the nature of the change is the proper approach to all
§ 5 cases. The Court's test will prove even more difficult of
application outside the redistricting context. Some changes just do
not lend themselves to comparison in positive or negative terms;
others will always seem negative -- or positive -- no matter how
good or bad the result. For instance, when a city goes from an
appointed town manager to an elected council form of government,
can the change ever be termed retrogressive, even if the new
council is elected at large and Negroes are a minority? Or where a
jurisdiction in which Negroes are a substantial minority switches
from at-large to ward voting, can that change ever constitute a
negative change, no matter how badly the wards are
I realize, of course, that determining the ultimate question of
"abridgment" may involve answering questions similar to those I
have posed above, and that those questions will be just as
difficult to answer. My point, however, is exactly that the inquiry
is a difficult one, and that there is no reason substantially to
compound that complexity by posing an unnecessary and equally
complex preliminary inquiry.
As I understand it, the Court views the constitutional inquiry
as part of the § 5 inquiry. See ante
at 425 U. S. 141
Thus, the burden of proof on constitutional issues, as on all § 5
issues, is on the covered jurisdiction. Although the Court's
treatment of the point is ambiguous, I read its observation that
"[t]he United States has made no claim" that Plan II is
at 425 U. S. 142
n. 14, as indicating only that it is for the United States to raise
the issue of unconstitutionality in the § 5 proceeding, and not as
suggesting that, once the issue is raised, the United States must
prove the claim as well. Any other reading would frustrate still
another legislative purpose. The Act freezes the existing plan and
places the burden of proof on the covered jurisdiction to justify
the proposed plan expressly in order "to shift the advantage of
time and inertia from the perpetrators of the evil to its victims."
South Carolina v. Katzenbach,
383 U.S. at 383 U. S. 328
H.R.Rep. No. 94-196, p. 58 (1975). I do not
understand the Court, in bringing the constitutional issue in
through the back door, to eliminate the primary procedural
advantage to the United States of the § 5 proceeding.
The Court's treatment of the constitutional questions is all the
more puzzling if it intends to confine its constitutional analysis
to those seats brought before the District Court in the § 5
proceeding. In this case, the Court holds that it may avoid looking
at the two at-large seats on the New Orleans City Council in
deciding the § 5 claim, but see infra
at 425 U. S.
-159, and its exclusion of those seats appears to
extend to its ultimate constitutional inquiry as well. Yet it is
obvious that an independent constitutional challenge to Plan II
would also include a challenge to the at-large seats, and that such
a broadened attack would be considerably more difficult to reject
than the question the Court evidently considers. The change in
focus caused by an expanded challenge both accentuates the dilution
of the Negro vote in New Orleans, see 425
recognition of the particularly dilutive effects of at-large
districting schemes. See White v. Regester, 412 U.
(1973). If the Court has ignored these factors in
finding Plan II constitutional, it has engaged in no more than a
time-consuming hypothetical adjudication, for its holding will
surely not bar a future constitutional challenge to the entire
Because I read § 5 as incorporating the standards of the
Fifteenth Amendment, see
I read these cases as
holding, implicitly, that the Fourteenth and Fifteenth Amendments
mandate the same test for assessing the validity, on racial
grounds, of legislative apportionments. Since a person whose right
to vote is denied or abridged on account of race is likewise denied
equal protection of the laws, borrowing from the developed corpus
of Fourteenth Amendment law is entirely appropriate.
Seeking another source for a § 5 test is particularly
appropriate given the scarcity of Fifteenth Amendment case law.
Wright v. Rockefeller, 376 U. S. 52
(1964), and Gomillion v. Lightfoot, 364 U.
(1960), the only relevant Fifteenth Amendment
cases, predate not only the Voting Rights Act, its incorporation of
the language of the Fifteenth Amendment, and our cases construing
that incorporation, but also all the Fourteenth Amendment
developments discussed in the text. For these reasons, and because
neither case states a general test, Wright
are of no help at all in formulating a test for
§ 5 cases.
The Court refers to the cited page for the proposition that
members of a minority group have no federal right "to be
represented in legislative bodies in proportion to their number in
the general population." Ante
at 425 U. S.
-137, n. 8. Whitcomb v. Chavis
stands for no
such proposition. The language the Court refers to is substantively
identical to that quoted in the text and supports only the notion
that there is no right to proportional representation absent
evidence of denial of access to the political process.
The cases make clear that the inquiry is not meant to be limited
to the ability of the minority group to participate in the voting
plan under attack, but also includes sweeping analysis of the
minority group's past and present treatment by the jurisdiction
before the court. White v. Regester,
412 U.S. at
412 U. S.
-767; Whitcomb v. Chavis,
403 U.S. at
403 U. S.
For instance, a city with a 20% Negro population and a
five-member council elected in wards might be able to justify the
placement of only 20% minority population in each district, despite
a history of denial of access to the political process, by showing
that the minority population was perfectly distributed throughout
the municipality so that the creation of a Negro-majority ward was
an impossibility. On the other hand, again assuming a history of
denial of access to the political process, such a plan could not
survive attack if the 20% Negro population of each ward were
achieved by dividing five ways a concentrated bloc of Negro voters
located in the center of the city.
This effect is clear in this case, where Negroes constitute
34.5% of the New Orleans electorate. Out of seven seats, Negroes
should reasonably expect to control at least two. In considering
only five seats, the Court suggests -- properly, given its
self-imposed limitation -- that Negroes should have an expectancy
of only one seat. Ante
at 425 U. S. 137
n. 8. If only two of the five districts were before us, and
assuming a 34.5% minority share of the voting population in those
districts, the Court could properly conclude that Negroes could lay
claim to neither of the two seats. Thus, under the Court's
approach, the smaller the number of seats that the city may present
for consideration, the grosser the discrimination that may be
The tendency to racial bloc voting in New Orleans is a finding
of fact by the District Court that is not challenged here. Such
voting was encouraged until 1964 by a Louisiana statute, declared
unconstitutional in Anderson v. Martin, 375 U.
(1964), that required the race of each candidate
to be printed on the ballots used in all elections within the
Appellants challenge the propriety of looking at this evidence
in assessing the effect of Plan II, not its accuracy.
The majority vote requirement is a rule that the winner of an
election must have a majority of the vote. Thus, in a race
involving three or more candidates, a plurality of voters cannot
elect their candidate. If no candidate wins a majority, there is a
The "anti-single-shot" rule is a requirement that, in a
multimember district, the voter must vote for as many candidates as
there are seats to be filled. Thus, although the voter may be
interested in only one of the candidates, he must vote for others
The city asserts that its seventh goal is to retain "historic
and traditional councilmanic district boundaries" so as to
"preserve continuity within the electorate." Brief for Appellants
229. In fact, the record is conclusive that the goal was purely to
keep incumbents apart. 1 App. 206-207; 2 App. 344, 557.
While the Court today finds that the District Court erred in
finding a discriminatory effect, it does not address the issue not
reached by the District Court: whether Plan II was drafted with a
discriminatory purpose. Of course, this question remains on remand.
See City of Richmond v. United States,
422 U.S. at
422 U. S.