The provision of § 4(b) of the Voting Rights Act of 1965 that a
determination of the Attorney General or Director of the Census
that a State is covered by the Act "shall not be reviewable in any
court"
held absolutely to preclude judicial review of such
a determination. Hence the District Court and Court of Appeals
erred in holding that they had jurisdiction to review petitioners'
claims that the Attorney General and Director of the Census
(respondents) had erroneously applied § 4(b) in determining that
Texas is covered by the 1975 amendments to the Act extending its
protections to language minorities, such as Mexican-Americans. A
"bailout" suit under § 4(a) to terminate coverage is Texas' sole
remedy. Pp.
432 U. S.
409-415.
(a) Such construction of § 4(b) is supported by its language and
legislative history and by the Act's structure and its purpose to
eradicate voting discrimination with all possible speed, as well as
by this Court's interpretations of the Act.
See South Carolina
v. Katzenbach, 383 U. S. 301;
Gaston County v. United States, 395 U.
S. 285;
Morris v. Gressette, post, p.
432 U. S. 491. Pp.
432 U. S.
410-414.
(b) While the finality of determinations under § 4(b) may be "an
uncommon exercise of congressional power,"
South Carolina v.
Katzenbach, supra at
383 U. S. 335,
nevertheless in attacking the pervasive evils and tenacious
defenders of voting discrimination, Congress acted within its
"power to enforce" the Fourteenth and Fifteenth Amendments "by
appropriate legislation." Pp.
432 U. S.
414-415.
175 U.S.App.D.C. 297, 535 F.2d 1259, vacated and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, REHNQUIST, and
STEVENS, JJ., joined. POWELL, J., concurred in the judgment.
Page 432 U. S. 405
MR. JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case is the construction of § 4 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973b (1970 ed. and Supp. V). "The
Voting Rights Act was designed by Congress to banish the blight of
racial discrimination in voting."
South Carolina v.
Katzenbach, 383 U. S. 301,
383 U. S. 308
(1966). While the Act has had a dramatic effect in increasing the
participation of black citizens in the electoral process, both as
voters and elected officials, Congress has not viewed it as an
unqualified success. [
Footnote
1] Most recently, as part of the 1975 amendments to the Voting
Rights Act, 89 Stat. 400, Congress extended the Act's strong
protections to cover language minorities -- that is, citizens
living in environments where the dominant language is not English.
Congress concluded after extensive hearings that there was
"overwhelming evidence" showing "the ingenuity and prevalence of
discriminatory practices that have been used to dilute the voting
strength and otherwise
Page 432 U. S. 406
affect the voting righbs of language minorities." [
Footnote 2] Concern was particularly expressd
over the plight of Mexican-American citizens in Texas, a State that
had not been covered by the 1965 Act. [
Footnote 3] This case arises out of Texas' efforts to
prevent application of the 1975 amendments to it.
I
Petitioners, the Governor and Secretary of State of Texas, filed
suit in the District Court for the District of Columbia against the
Attorney General of the United States and the Director of the
Census. [
Footnote 4] These
officials are responsible for
Page 432 U. S. 407
determining whether the preconditions for application of the Act
to particular jurisdictions are met.
See § 4(b) of the
Act, 42 U.S.C. § 1973b(b) (1970 ed., Supp. V). [
Footnote 5] Petitioners sought interlocutory
injunctive relief to restrain official publication of respondents'
determinations that Texas was covered by the 1975 amendments, and a
"declaratory judgment" determining "how and under what
circumstances the determinations . . . should be made." [
Footnote 6] Pet. for Cert. 6.
Respondents opposed the motion for a preliminary injunction, and
moved to dismiss the suit for failure to state a claim upon which
relief could be granted and for lack of jurisdiction to review
determinations made under § 4(b). The jurisdictional argument was
based on the final paragraph of § 4(b),
Page 432 U. S. 408
which provides in pertinent part:
"A determination or certification of the Attorney General or of
the Director of the Census under this section . . . shall not be
reviewable in any court. . . . "
The District Court ruled, however, that this apparent preclusion
of judicial review was not absolute. It found that there was
jurisdiction to consider the "pure legal question" whether the
Executive officials had correctly interpreted an Act of Congress.
Reaching the merits of petitioners' claims, the District Court
rejected them all and granted summary judgment for respondents.
[
Footnote 7]
On appeal to the Court of Appeals for the District of Columbia
Circuit, respondents discussed, but did not "take issue with," the
jurisdictional ruling of the District Court. The Court of Appeals
nevertheless considered the issue carefully, concluding:
"It is . . . apparent that, even where the intent of Congress
was to preclude judicial review, a limited jurisdiction exists in
the court to review actions which, on their face, are plainly in
excess of statutory authority. . . . The district court in the
instant case was careful to note that the actual computations made
by the Director of the Census were
not within its
jurisdiction to review, and that its scope of review was limited to
determining whether the Director acted 'consistent with the
apparent
Page 432 U. S. 409
meaning of the statute.' Narrowly defined in this manner, the
jurisdiction of the trial court to consider the Director's
determinations is supported by precedent. . . ."
Briscoe v. Levi, 175 U.S.App.D.C. 297, 303, 535 F.2d
1259, 1265 (1976). Turning to the merits of petitioners' procedural
and statutory construction arguments, the Court of Appeals
thoroughly analyzed the statute and the legislative history. It
found that respondents had correctly interpreted the Act, and
affirmed the judgment of the District Court. [
Footnote 8]
We granted certiorari
sub nom. Briscoe v. Levi, 429
U.S. 997 (1976). Although respondents do not assert before us the
jurisdictional objection raised in the District Court, we find that
the courts below incorrectly concluded that they had power to
review respondents' determinations that Texas was covered by the
Act.
See Philbrook v. Glodgett, 421 U.
S. 707,
421 U. S. 721
(1975), and cases there cited. We therefore order dismissal of the
complaint without reaching the merits of petitioners' claims.
II
Section 4(b) of the Voting Rights Act could hardly prohibit
judicial review in more explicit terms. It states that a
"determination or certification of the Attorney General or of
the
Page 432 U. S. 410
Director of the Census under this section . . . shall not be
reviewable in any court and shall be effective upon publication in
the Federal Register."
The language is absolute on its face, and would appear to admit
of no exceptions. The purposes and legislative history of the Act
strongly support this straightforward interpretation.
The Voting Rights Act was conceived by Congress as a stern and
powerful remedy to combat
"an insidious and pervasive evil which had been perpetuated in
certain parts of our country through unremitting and ingenious
defiance of the Constitution."
South Carolina v. Katzenbach, 383 U.S. at
383 U. S. 309.
The stringent remedial provisions of the Act [
Footnote 9] were based on Congress' finding
that
"case-by-case litigation was inadequate to combat widespread and
persistent discrimination in voting, because of the inordinate
amount of time and energy required to overcome the obstructionist
tactics invariably encountered. . . ."
Id. at
383 U. S. 328.
The intention of the drafters of the Act was "to shift the
advantage of time and inertia from the perpetrators of the evil to
its victims."
Ibid. Reading § 4(b) as completely
precluding judicial review thus implements Congress' intention to
eradicate the blight of voting discrimination with all possible
speed.
The drafters' specific comments on § 4(b) further support this
view. The House Report stated that the coverage formula "requires
certain factual determinations -- determinations that are final
when made and not reviewable in court." H.R.Rep. No. 439, 89th
Cong., 1st Sess., 25 (1965). The minority report criticized the Act
precisely because it went into effect "without evidence, without a
judicial proceeding or a
Page 432 U. S. 411
hearing of any kind."
Id. at 45;
see also id.
at 43. The Report of the Senate Judiciary Committee sponsors of the
Act also described § 4 as requiring "factual determinations . . .
that are not reviewable in court." S.Rep. No. 162, 89th Cong., 1st
Sess., pt. 3, p. 22 (1965).
Congress was well aware, however, that the simple formula of §
4(b) might bring within its sweep governmental units not guilty of
any unlawful discriminatory voting practices. It afforded such
jurisdictions immediately available protection in the form of an
action to terminate coverage under § 4(a) of the Act. While this
so-called "bailout" suit is subject to narrow procedural and
substantive limitations, [
Footnote 10] § 4(a) does instruct the Attorney General
that, if he "determines that he has no reason to believe that any .
. . test or device" has been used for a prohibited purpose during
the relevant time period, "he shall consent to the entry of . . .
judgment" exempting the jurisdiction.
See H.R.Rep. No.
439,
supra, at 14-15, 19. [
Footnote 11]
Although this Court has never considered at length the scope of
the § 4(b) preclusion clause, we have indicated that the words of
the statute mean what they say. In South
Carolina v.
Katzenbach, supra, the Court upheld the constitutionality
Page 432 U. S. 412
of § 4(b), which the Court stated
"bar[red] direct judicial review of the findings by the Attorney
General and the Director of the Census which trigger application of
the coverage formula."
383 U.S. at
383 U. S. 332.
The Court recognized that § 4(b) might be "improperly applied," but
found that a bailout suit was the only available remedy. 383 U.S.
at
383 U. S. 333.
The Court noted that "[t]his procedure serves as a partial
substitute for direct judicial review."
Ibid.
Similarly, in
Gaston County v. United States,
395 U. S. 285
(1969), we stated that "[t]he coverage formula chosen by Congress
was designed to be speedy, objective, and incontrovertible."
Id. at
395 U. S.
291-292. A footnote added: "Section 4(b) of the Act
makes the determinations by the Attorney General and the Director
of the Census unreviewable in any court."
Id. at
395 U. S. 292
n. 6.
See also id. at
395 U. S. 287.
The significant part played by the discretionary authority of the
Attorney General in administering the Act is also underlined by
Morris v. Gressette, post, p.
432 U. S. 491.
There the Court finds no authority to review the Attorney General's
failure to object, under § 5 of the Act, to a change in the voting
laws of a covered jurisdiction. Although § 5 contains no express
preclusion of review, the Court concludes from its structure and
purposes that Congress intended no prolonged suspension of the
operation of validly enacted state laws to allow judicial review.
Since § 4(b) expressly provides that the administrative
determinations "shall not be reviewable in any court," and
conclusions similar to those in
Morris may be drawn from
the statutory structure, the case for preclusion is, if anything,
stronger here than in
Morris.
We conclude, then, that the plain meaning and history of § 4(b),
the purpose and structure of the Act, as well as this Court's
interpretation of it, indicate that judicial review of § 4(b)
determinations by the Attorney General and the Director of the
Census is absolutely barred. There is in this case
"'persuasive reason to believe that such was the purpose
Page 432 U. S. 413
of Congress.'
Abbott laboratores v. Gardner,
387 U. S.
136,
387 U. S. 140 (1967)."
Dunlop v. Bachowski, 421 U. S. 560,
421 U. S. 567
(1975). "[T]he heavy burden of overcoming the strong presumption
that Congress did not mean to prohibit all judicial review" of this
administrative decision has been met with the requisite "
clear
and convincing evidence.'" Ibid. [Footnote 12]
Under these circumstances, the Court of Appeals erred in relying
on cases that inferred jurisdiction to review administrative
actions where there was no clear showing of preclusion. [
Footnote 13] Since different
congressional enactments have distinct
Page 432 U. S. 414
purposes and use diverse means to achieve them, each case
raising an administrative reviewability question must be analyzed
on the basis of the specific statutory provisions involved. If the
intent of Congress is unmistakable -- and we have no doubt that it
is here -- the only remaining issue is whether prohibiting judicial
review is constitutionally permissible.
On that score, the finality of determinations under § 4(b), like
the preclearance requirement of § 5, may well be "an uncommon
exercise of congressional power,"
South Carolina v.
Katzenbach, 383 U.S. at
383 U. S. 334;
see also Morris v. Gressette, post at
432 U. S. 501.
But there can be no question that, in attacking the pervasive evils
and tenacious defenders of voting discrimination, Congress acted
within its "power to enforce" the Fourteenth
Page 432 U. S. 415
and Fifteenth Amendments "by appropriate legislation."
South
Carolina v. Katzenbach, supra.
For the foregoing reasons, we hold that the courts below erred
in finding that they had jurisdiction to review petitioners' claims
of erroneous application of § 4(b). The only procedure available to
Texas to seek termination of Voting Rights Act coverage is a
bailout suit under the strict limitations of § 4(a). Accordingly,
the decision of the Court of Appeals is vacated, and the case is
remanded with instructions to direct the District Court to dismiss
the complaint.
It is so ordered.
MR. JUSTICE POWELL concurs in the judgment of the Court.
[
Footnote 1]
See, e.g., S.Rep. No. 9295, pp. 13-15 (1975) (hereafter
Senate Report); H.R.Rep. No. 9196, pp. 6-8 (1975) (hereafter House
Report).
[
Footnote 2]
Senate Report 30, 35; House Report 22, 26-27.
See §
4(f)(1) of the Act, 42 U.S.C. § 1973b(f)(1) (1970 ed., Supp.
V):
"The Congress finds that voting discrimination against citizens
of language minorities is pervasive and national in scope. Such
minority citizens are from environments in which the dominant
language is other than English. In addition they have been denied
equal educational opportunities by State and local governments,
resulting in severe disabilities and continuing illiteracy in the
English language. The Congress further finds that, where State and
local officials conduct elections only in English, language
minority citizens are excluded from participating in the electoral
process. In many areas of the country, this exclusion is aggravated
by acts of physical, economic, and political intimidation. The
Congress declares that, in order to enforce the guarantees of the
fourteenth and fifteenth amendments to the United States
Constitution, it is necessary to eliminate such discrimination by
prohibiting English-only elections, and by prescribing other
remedial devices."
"The term 'language minorities' or 'language minority group'
means persons who are American Indian, Asian American, Alaskan
Natives or of Spanish heritage."
§ 14(c)(3) of the Act, 42 U.S.C. § 19731(c)(3) (1970 ed., Supp.
V).
See Senate Report 24; House Report 16. The language
minority protections apply only to jurisdictions where "the
Director of the Census determines that more than five per centum of
the citizens of voting age . . . are members of a single language
minority." § 4(f)(3) of the Act, 42 U.S.C. § 1973b(f)(3) (1970 ed.,
Supp. V).
[
Footnote 3]
See Senate Report 228; House Report 17-20.
[
Footnote 4]
Also named as defendants were the Assistant Attorney General,
Civil Rights Division, the Secretary of Commerce, and the Public
Printer of the United States.
[
Footnote 5]
As pertinent to this case, § 4(b) substantively provides:
"[T]he provisions of subsection (a) of this section shall apply
in any State or any political subdivision of a State which (i) the
Attorney General determines maintained on November 1, 1972, any
test or device, and with respect to which (ii) the Director of the
Census determines that less than 50 per centum of the citizens of
voting age were registered on November 1, 1972, or that less than
50 per centum of such persons voted in the Presidential election of
November, 1972."
[
Footnote 6]
Petitioners argued that the Attorney General, in determining
whether Texas had used a "test or device" of English-only
elections,
see § 4(f)(3), 42 U.S.C. § 1973b(f)(3) (1970
ed., Supp. V), was obliged to consider whether it had done so "for
the purpose or with the effect of denying or abridging the right to
vote" as that is defined in § 4(d). They argued that the Director
of the Census should have interpreted "such persons," in the last
clause of § 4(b) quoted in
n 5,
supra, to refer only to persons registered to vote rather
than to all citizens. They also argued that even if their statutory
interpretation claims were rejected, the Attorney General and the
Director had violated their duties under the statute by failing to
afford Texas a hearing before making the coverage deternnination
and by incorrectly calculating the number of citizens and persons
of Spanish heritage in Texas. Petitioners disclammed any
constitutional challenge to the Act.
[
Footnote 7]
After the District Court denied relief, the § 4(b) coverage
determination was officially published. 40 Fed.Reg. 43746
(1975).
The Attorney General found that Texas had maintained the "test
or device" of English-only elections. The Director of the Census
calculated from his agency's statistics that more than 5% of the
voting age citizens in Texas were of Spanish heritage, and that
46.2% of voting age citizens cast ballots in the 1972 Presidential
election:
Estimated number
Voting age population on November 1, 1972 . . 7,655,000
Less aliens of voting age. . . . . . . . . . . 140,657
Citizens of voting age. . . . . . . . . . . . 7,514,343
Votes cast. . . . . . . . . . . . . . . . . . 3,472,714
App. 156.
[
Footnote 8]
The Court of Appeals ruled that the definitions in § 4(d) apply
only in suits brought to terminate coverage under § 4(a), and not
to the Attorney General's determination under § 4(b). It held that,
while the language of the statute was unclear, the legislative
history and administrative and judicial interpretation of § 4(b)
clearly indicated that "such persons" referred to "citizens of
voting age." The court also held that the Director properly relied
on census figures in calculating the number of citizens of voting
age, rejecting petitioners' "amalgams of estimates and hypotheses,"
175 U.S.App.D.C. at 307, 535 F.2d at 1269, allegedly showing large
numbers of illegal aliens in Texas. It found that, while Texas was
not entitled to any pre-determination hearing on coverage, it had
been afforded ample opportunity to present information before the
decision was made.
[
Footnote 9]
The Act suspends the operation of all "tests or devices,"
including English-only elections, in covered jurisdictions. § 4.
Before such jurisdictions may implement any change in voting laws
or procedures, they must secure the approval of the Attorney
General or a three-judge court in the District of Columbia that the
change will not violate the Act. § 5. In addition, federal
registrars and observers may be appointed to effectuate compliance
with the Act. §§ 6-9.
[
Footnote 10]
The action may be brought only before a three-judge District
Court in the District of Columbia, with direct appeal to this
Court. Under the 1975 amendments, Texas would be required to show
in such a bailout suit
"that no . . . test or device has been used during the ten years
preceding the filing of an action . . . for the purpose or with the
effect of denying or abridging the right to vote on account of race
or color, or in contravention of the [language minority]
guarantees. . . ."
§ 4 (a). Another proviso of §4(a), and § 4(b), further define
the applicable standards.
[
Footnote 11]
It is notable that a number of jurisdictions brought within the
Act by the coverage formula have successfully exempted themselves
in bailout suits.
See Senate Report 12 n. 4, 13 n. 5;
House Report 5 n. 4, 6 n. 5. The burden of proving
nondiscrimination is thus not an impossible one by any means, and
this ameliorative route has been available to Texas at all
times.
[
Footnote 12]
Petitioners argued in support of reviewability in the District
Court that, because the preclusion paragraph of § 4(b) contains the
statement that coverage determinations "shall be effective upon
publication in the Federal Register," review is foreclosed only
after publication, but is available before. This case was commenced
prior to publication of the coverage determination. Petitioners'
argument tortures the plain meaning of the paragraph, which is made
up of two independent clauses. The first precludes review without
limitation as to time; the second establishes the precise date at
which a coverage determination becomes effective, thereby
requiring, for example, preclearance of any laws affecting voting
rights after that date.
[
Footnote 13]
The Court of Appeals primarily reasoned by analogy with
Leedom v. Kyne, 358 U. S. 184
(1958). The issue there was whether a district court had
jurisdiction to review a claim that the National Labor Relations
Board had acted "in excess of its delegated powers and contrary to
a specific [statutory] prohibition,"
id. at
358 U. S. 188,
in certifying a collective bargaining unit. While § 9(d) of the
National Labor Relations Act, 29 U.S.C. § 159(d), arguably divested
the district courts of jurisdiction, it contained no express
language to that effect. It merely specified the manner in which
the record of a certification proceeding would be transmitted to a
court of appeals for ultimate review in the event an unfair labor
practice case followed an employer's refusal to bargain with a
certified union. The action in
Leedom was brought by a
group of employees affected by the NLRB's admitted violation of the
Act in certifying their bargaining unit. The Court noted that,
unless the District Court had jurisdiction, the employees might
never secure review of the Board's error. Absent express
preclusion, the Court was unwilling to find that Congress intended
to allow
"obliteration of a right which Congress' has given [the affected
employees], for there is no other means, within their control . . .
to protect and enforce that right."
358 U.S. at
358 U. S.
190.
By contrast, in this case, § 4(b), on its face, forecloses
judicial review. No inference from the structure of the statute nor
from its legislative history,
cf. 358 U.S. at
358 U. S.
191-201 (BRENNAN, J., dissenting), is necessary to make
its meaning plain. And as we have noted, preclusion of review of §
4(b) determinations does not wholly pretermit judicial action by
the affected jurisdiction to terminate coverage.
The Court of Appeals also erred in relying on
Thermtron
Products, Inc. v. Hermansdorfer, 423 U.
S. 336 (1976). At issue there was the authority of a
court of appeals to grant mandamus relief against the improper
remand to a state court of an action previously removed to federal
court. A remand order is generally "not reviewable on appeal or
otherwise." 28 U.S.C. § 1447(d). We held, however, that review is
not precluded if the order is based "
on grounds wholly
different from those . . . which [the statute authorizing remand,
28 U.S.C.] § 1447(c) permits.'" Gravitt v. Southwestern Bell
Tel. Co., 430 U. S. 723,
430 U. S. 724
(1977). Where the order is based on one of the enumerated grounds,
review is unavailable no matter how plain the legal error in
ordering the remand. Id. at 430 U. S.
723.
While we express no opinion on the question whether § 4(b)
precludes review of coverage determinations based on criteria not
specified in the statute, we note that, in the present case, there
is no question that the Attorney General and the Director of the
Census relied solely upon the statutory grounds in finding Texas
covered by the Act.