Burke County, Ga., a large, predominately rural county, has an
at-large system for electing members of its governing Board of
Commissioners. No Negro has ever been elected to the Board.
Appellee black citizens of the county filed a class action in
Federal District Court, alleging that the at-large system of
elections violated,
inter alia, appellees' Fourteenth and
Fifteenth Amendment rights by diluting the voting power of black
citizens. Finding that blacks have always made up a substantial
majority of the county's population, but that they are a minority
of the registered voters, that there had been bloc voting along
racial lines, and that past discrimination had restricted the
present opportunity of blacks to participate effectively in the
political process, the District Court held that, although the state
policy behind the at-large electoral system was "neutral in
origin," the policy was being maintained for invidious purposes in
violation of appellees' Fourteenth and Fifteenth Amendment rights.
The court then ordered the county to be divided into districts for
purposes of electing County Commissioners. The Court of Appeals
affirmed, holding that the District Court properly required
appellees to prove that the at-large system was maintained for a
discriminatory purpose, that the District Court's findings were not
clearly erroneous, and that its conclusion that the at-large system
was maintained for invidious purposes was "virtually mandated by
the overwhelming proof."
Held:
1. The Court of Appeals did not err in concluding that the
District Court applied the proper legal standard where it appears
that the District Court demonstrated its understanding of the
controlling standard by observing that a determination of
discriminatory intent was "a requisite to a finding of
unconstitutional vote dilution" under the Fourteenth and Fifteenth
Amendments. Pp.
458 U. S.
616-622.
2. Where neither the District Court's ultimate findings of
intentional discrimination nor its subsidiary findings of fact
appear to be clearly erroneous, and such findings were agreed to by
the Court of Appeals, this Court will not disturb the findings. Pp.
458 U. S.
622-627.
3. Nor is there any reason to overturn the relief ordered by the
District Court where neither that court nor the Court of Appeals
discerned
Page 458 U. S. 614
any special circumstances that would militate against utilizing
single-member districts. Pp.
458 U. S.
627-628.
639 F.2d 1358, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined.
POWELL, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
458 U. S. 628.
STEVENS, J., filed a dissenting opinion,
post, p.
458 U. S.
631.
JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether the at-large system of
elections in Burke County, Ga., violates the Fourteenth Amendment
rights of Burke County's black citizens.
I
Burke County is a large, predominately rural county located in
eastern Georgia. Eight hundred and thirty-one square miles in area,
[
Footnote 1] it is
approximately two-thirds the size of the State of Rhode Island.
According to the 1980 census, Burke County had a total population
of 19,349, of whom 10,385, or 53.6%, were black. [
Footnote 2] The average age of blacks
Page 458 U. S. 615
living there is lower than the average age of whites, and
therefore whites constitute a slight majority of the voting age
population. As of 1978, 6,373 persons were registered to vote in
Burke County, of whom 38% were black. [
Footnote 3]
The Burke County Board of Commissioners governs the county. It
was created in 1911,
see 1911 Ga. Laws 310-311, and
consists of five members elected at large to concurrent 4-year
terms by all qualified voters in the county. The county has never
been divided into districts, either for the purpose of imposing a
residency requirement on candidates or for the purpose of requiring
candidates to be elected by voters residing in a district. In order
to be nominated or elected, a candidate must receive a majority of
the votes cast in the primary or general election, and a runoff
must be held if no candidate receives a majority in the first
primary or general election. Ga.Code § 34-1513 (Supp.1980). Each
candidate must run for a specific seat on the Board, Ga.Code §
34-1015 (1978), and a voter may vote only once for any candidate.
No Negro has ever been elected to the Burke County Board of
Commissioners.
Appellees, eight black citizens of Burke County, filed this suit
in 1976 in the United States District Court for the Southern
District of Georgia. The suit was brought on behalf of all black
citizens in Burke County. The class was certified in 1977. The
complaint alleged that the county's system of at-large elections
violates appellees' First, Thirteenth, Fourteenth, and Fifteenth
Amendment rights, as well as their rights under 42 U.S.C. §§ 1971,
1973, and 1983, by diluting the voting power of black citizens.
Following a bench trial at which both sides introduced extensive
evidence, the court issued an order on September 29, 1978, stating
that appellees were entitled to prevail and ordering that Burke
County be
Page 458 U. S. 616
divided into five districts for purposes of electing County
Commissioners. App. to Juris.Statement 62a. The court later issued
detailed findings of fact and conclusions of law in which it stated
that, while the present method of electing County Commissioners was
"racially neutral when adopted, [it] is being maintained for
invidious purposes" in violation of appellees' Fourteenth and
Fifteenth Amendment rights.
Id. at 71a, 96a.
The Court of Appeals affirmed.
Lodge v. Buxton, 639
F.2d 1358 (CA5 1981). It stated that, while the proceedings in the
District Court took place prior to the decision in
Mobile v.
Bolden, 446 U. S. 55
(1980), the District Court correctly anticipated
Mobile
and required appellees to prove that the at-large voting system was
maintained for a discriminatory purpose. 639 F.2d at 1375-1376. The
Court of Appeals also held that the District Court's findings were
not clearly erroneous, and that its conclusion that the at-large
system was maintained for invidious purposes was "virtually
mandated by the overwhelming proof."
Id. at 1380. We noted
probable jurisdiction, 454 U.S. 811 (1981), and now affirm.
[
Footnote 4]
II
At-large voting schemes and multimember districts tend to
minimize the voting strength of minority groups by permitting the
political majority to elect all representatives of the district. A
distinct minority, whether it be a racial, ethnic, economic, or
political group, may be unable to elect any representatives in an
at-large election, yet may be able to elect several representatives
if the political unit is divided into single-member districts. The
minority's voting power in a multimember district is particularly
diluted when bloc voting occurs and ballots are cast along strict
majority-minority lines. While multimember districts have been
challenged for
Page 458 U. S. 617
"their winner-take-all aspects, their tendency to submerge
minorities and to overrepresent the winning party,"
Whitcomb v.
Chavis, 403 U. S. 124,
403 U. S.
158-159 (1971), this Court has repeatedly held that they
are not unconstitutional
per se. Mobile v. Bolden,
supra, at
446 U. S. 66;
White v. Regester, 412 U. S. 755,
412 U. S. 765
(1973);
Whitcomb v. Chavis, supra, at
403 U. S. 142.
The Court has recognized, however, that multimember districts
violate the Fourteenth Amendment if "conceived or operated as
purposeful devices to further racial discrimination" by minimizing,
canceling out or diluting the voting strength of racial elements in
the voting population.
Whitcomb v. Chavis, supra, at
403 U. S. 149.
See also White v. Regester, supra, at
412 U. S. 765.
Cases charging that multimember districts unconstitutionally dilute
the voting strength of racial minorities are thus subject to the
standard of proof generally applicable to Equal Protection Clause
cases.
Washington v. Davis, 426 U.
S. 229 (1976), and
Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U. S. 252
(1977), made it clear that, in order for the Equal Protection
Clause to be violated, "the invidious quality of a law claimed to
be racially discriminatory must ultimately be traced to a racially
discriminatory purpose."
Washington v. Davis, supra, at
426 U. S. 240.
Neither case involved voting dilution, but in both cases, the Court
observed that the requirement that racially discriminatory purpose
or intent be proved applies to voting cases by relying upon, among
others,
Wright v. Rockefeller, 376 U. S.
52 (1964), a districting case, to illustrate that a
showing of discriminatory intent has long been required in all
types of equal protection cases charging racial discrimination.
Arlington Heights, supra, at
429 U. S. 265;
Washington v. Davis, supra, at
426 U. S. 240.
[
Footnote 5]
Page 458 U. S. 618
Arlington Heights and
Washington v. Davis both
rejected the notion that a law is invalid under the Equal
Protection Clause simply because it may affect a greater proportion
of one race than another.
Arlington Heights, supra, at
429 U. S. 265;
Washington v. Davis, 426 U.S. at
426 U. S. 242.
However, both cases recognized that discriminatory intent need not
be proved by direct evidence.
"Necessarily, an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the
fact, if it is true, that the law bears more heavily on one race
than another."
Ibid. Thus, determining the existence of a
discriminatory purpose "demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available."
Arlington Heights, supra, at
429 U. S.
266.
In
Mobile v. Bolden, supra, the Court was called upon
to apply these principles to the at-large election system in
Mobile, Ala. Mobile is governed by three commissioners who exercise
all legislative, executive, and administrative power in the
municipality. 446 U.S. at
446 U. S. 59.
Each candidate for the City Commission runs for one of three
numbered posts in an at-large election and can only be elected by a
majority vote.
Id. at
446 U. S. 59-60.
Plaintiffs brought a class action on behalf of all Negro citizens
of Mobile alleging that the at-large scheme diluted their voting
strength in violation of several statutory and constitutional
provisions. The District Court concluded that the at-large system
"violates the constitutional rights of the plaintiffs by improperly
restricting their access to the political process,"
Bolden v.
Mobile, 423 F.
Supp. 384, 399 (SD Ala.1976), and ordered that the commission
form of government be replaced by a mayor and a nine-member City
Council elected from single-member districts.
Id. at
446 U. S. 404.
The Court of Appeals affirmed. 571 F.2d 238 (CA5 1978). This Court
reversed.
Justice Stewart, writing for himself and three other Justices,
noted that, to prevail in their contention that the at-large voting
system violates the Equal Protection Clause of the Fourteenth
Amendment, plaintiffs had to prove the
Page 458 U. S. 619
system was "
conceived or operated as [a] purposeful devic[e]
to further racial . . . discrimination.'" 446 U.S. at 446 U. S. 66,
quoting Whitcomb v. Chavis, supra, at 403 U. S. 149.
[Footnote 6] Such a
requirement
"is simply one aspect of the basic principle that only if there
is purposeful discrimination can there be a violation of the Equal
Protection Clause of the Fourteenth Amendment,"
446 U.S. at
446 U. S. 66,
and
White v. Regester is consistent with that principle.
446 U.S. at
446 U. S. 69.
Another Justice agreed with the standard of proof recognized by the
plurality.
Id. at
446 U. S. 101 (WHITE, J., dissenting).
The plurality went on to conclude that the District Court had
failed to comply with this standard. The District Court had
analyzed plaintiffs' claims in light of the standard which had been
set forth in
Zimmer v. McKeithen, 485 F.2d 1297 (CA5
1973),
aff'd on other grounds sub nom. East Carroll Parish
School Bd. v. Marshall, 424 U. S. 636
(1975) (per curiam). [
Footnote
7] Zimmer set out a list of factors [
Footnote 8] gleaned from
Page 458 U. S. 620
Whitcomb v. Chavis, supra, and
White v. Regester,
supra, that a court should consider in assessing the
constitutionality of at-large and multimember district voting
schemes. Under
Zimmer, voting dilution is established
"upon proof of the existence of an aggregate of these factors." 485
F.2d at 1305.
The plurality in
Mobile was of the view that
Zimmer was
"decided upon the misunderstanding that it is not necessary to
show a discriminatory purpose in order to prove a violation of the
Equal Protection Clause -- that proof of a discriminatory effect is
sufficient."
446 U.S. at
446 U. S. 71.
The plurality observed that, while "the presence of the indicia
relied on in
Zimmer may afford some evidence of a
discriminatory purpose," the mere existence of those criteria is
not a substitute for a finding of discriminatory purpose.
Id. at
446 U. S. 73.
The District Court's standard in
Mobile was likewise
flawed. Finally, the plurality concluded that the evidence upon
which the lower courts had relied was "insufficient to prove an
unconstitutionally discriminatory purpose in the present case."
Ibid. JUSTICE STEVENS rejected the intentional
discrimination standard, but concluded that the proof failed to
satisfy the legal standard that, in his view, was the applicable
rule. He therefore concurred in the judgment of reversal. Four
other Justices, however, thought the evidence sufficient to satisfy
the purposeful discrimination standard. One of them, JUSTICE
BLACKMUN, nevertheless concurred in the Court's judgment because he
believed an erroneous remedy had been imposed.
Because the District Court in the present case employed the
evidentiary factors outlined in
Zimmer, it is urged
that
Page 458 U. S. 621
its judgment is infirm for the same reasons that led to the
reversal in
Mobile. We do not agree. First, and
fundamentally, we are unconvinced that the District Court in this
case applied the wrong legal standard. Not only was the District
Court's decision rendered a considerable time after
Washington
v. Davis and
Arlington Heights, but the trial judge
also had the benefit of
Nevett v. Sides, 571 F.2d 209
(1978), where the Court of Appeals for the Fifth Circuit assessed
the impact of
Washington v. Davis and
Arlington
Heights and held that "a showing of racially motivated
discrimination is a necessary element in an equal protection voting
dilution claim. . . ." 571 F.2d at 219. The court stated that
"[t]he ultimate issue in a case alleging unconstitutional
dilution of the votes of a racial group is whether the districting
plan under attack exists because it was intended to diminish or
dilute the political efficacy of that group."
Id. at 226. The Court of Appeals also explained that,
although the evidentiary factors outlined in
Zimmer were
important considerations in arriving at the ultimate conclusion of
discriminatory intent, the plaintiff is not limited to those
factors.
"The task before the fact finder is to determine, under all the
relevant facts, in whose favor the 'aggregate' of the evidence
preponderates. This determination is peculiarly dependent upon the
facts of each case."
571 F.2d at 224 (footnote omitted).
The District Court referred to
Nevett v. Sides and
demonstrated its understanding of the controlling standard by
observing that a determination of discriminatory intent is "a
requisite to a finding of unconstitutional vote dilution" under the
Fourteenth and Fifteenth Amendments. App. to Juris.Statement 68a.
Furthermore, while recognizing that the evidentiary factors
identified in
Zimmer were to be considered, the District
Court was aware that it was "not limited in its determination only
to the Zimmer factors," but could consider other relevant factors
as well. App. to Juris.Statement 70a. The District Court then
proceeded to deal with what it considered to
Page 458 U. S. 622
be the relevant proof, and concluded that the at-large scheme of
electing commissioners, "although racially neutral when adopted, is
being maintained for invidious purposes."
Id. at 71a. That
system, "while neutral in origin . . . , has been subverted to
invidious purposes."
Id. at 90a. For the most part, the
District Court dealt with the evidence in terms of the factors set
out in
Zimmer and its progeny, but, as the Court of
Appeals stated:
"Judge Alaimo employed the constitutionally required standard .
. . , [and] did not treat the
Zimmer criteria as absolute,
but rather considered them only to the extent they were relevant to
the question of discriminatory intent."
639 F.2d at 1376. Although a tenable argument can be made to the
contrary, we are not inclined to disagree with the Court of
Appeals' conclusion that the District Court applied the proper
legal standard.
III
A
We are also unconvinced that we should disturb the District
Court's finding that the at-large system in Burke County was being
maintained for the invidious purpose of diluting the voting
strength of the black population. In
White v. Regester,
412 U.S. at
412 U. S.
769-770, we stated that we were not inclined to overturn
the District Court's factual findings,
"representing as they do a blend of history and an intensely
local appraisal of the design and impact of the Bexar County
multimember district in the light of past and present reality,
political and otherwise."
See also Columbus Board of Education v. Penick,
443 U. S. 449,
443 U. S. 468
(1979) (BURGER, C.J., concurring in judgment). Our recent decision
in
Pullman-Standard v. Swint, 456 U.
S. 273 (1982), emphasizes the deference Federal Rule of
Civil Procedure 52 requires reviewing courts to give a trial
court's findings of fact.
"Rule 52(a) broadly requires that findings of fact not be set
aside unless
Page 458 U. S. 623
clearly erroneous. It does not make exceptions or purport to
exclude certain categories of factual findings. . . ."
456 U.S. at
456 U. S. 287.
The Court held that the issue of whether the differential impact of
a seniority system resulted from an intent to discriminate on
racial grounds "is a pure question of fact, subject to Rule 52(a)'s
clearly erroneous standard."
Id. at
456 U. S.
287-288. The
Swint Court also noted that issues
of intent are commonly treated as factual matters.
Id. at
456 U. S. 288.
We are of the view that the same clearly erroneous standard applies
to the trial court's finding in this case that the at-large system
in Burke County is being maintained for discriminatory purposes, as
well as to the court's subsidiary findings of fact. The Court of
Appeals did not hold any of the District Court's findings of fact
to be clearly erroneous, and this Court has frequently noted its
reluctance to disturb findings of fact concurred in by two lower
courts.
See, e.g., Berenyi v. Information Director,
385 U. S. 630,
385 U. S. 635
(1967);
Blau v. Lehman, 368 U. S. 403,
368 U. S.
408-409 (1962);
Graver Tank & Mfg. Co. v. Linde
Co., 336 U. S. 271,
336 U. S. 275
(1949). We agree with the Court of Appeals that, on the record
before us, none of the factual findings is clearly erroneous.
B
The District Court found that blacks have always made up a
substantial majority of the population in Burke County, App. to
Juris.Statement 66a, n. 3, but that they are a distinct minority of
the registered voters.
Id. at 71a-72a. There was also
overwhelming evidence of bloc voting along racial lines.
Id. at 72a-73a. Hence, although there had been black
candidates, no black had ever been elected to the Burke County
Commission. These facts bear heavily on the issue of purposeful
discrimination. Voting along racial lines allows those elected to
ignore black interests without fear of political consequences, and,
without bloc voting, the minority candidates would not lose
elections solely because of their race. Because it is sensible to
expect that at least some
Page 458 U. S. 624
blacks would have been elected in Burke County, the fact that
none have ever been elected is important evidence of purposeful
exclusion.
See White v. Regester, supra, at
412 U. S.
766.
Under our cases, however, such facts are insufficient in
themselves to prove purposeful discrimination absent other evidence
such as proof that blacks have less opportunity to participate in
the political processes and to elect candidates of their choice.
United Jewish Organizations v. Carey, 430 U.
S. 144,
430 U. S. 167
(1977);
White v. Regester, supra, at
412 U. S.
765-766;
Whitcomb v. Chavis, 403 U.S. at
403 U. S.
149-150.
See also Mobile v. Bolden, 446 U.S. at
446 U. S. 66
(plurality opinion). Both the District Court and the Court of
Appeals thought the supporting proof in this case was sufficient to
support an inference of intentional discrimination. The supporting
evidence was organized primarily around the factors which
Nevett v. Sides, 571 F.2d 209 (CA5 1978), had deemed
relevant to the issue of intentional discrimination. These factors
were primarily those suggested in
Zimmer v. McKeithen, 485
F.2d 1297 (CA5 1973)
The District Court began by determining the impact of past
discrimination on the ability of blacks to participate effectively
in the political process. Past discrimination was found to
contribute to low black voter registration because, prior to the
Voting Rights Act of 1965, blacks had been denied access to the
political process by means such as literacy tests, poll taxes, and
white primaries. The result was that "Black suffrage in Burke
County was virtually nonexistent." App. to Juris.Statement 71a.
Black voter registration in Burke County has increased following
the Voting Rights Act to the point that some 38% of blacks eligible
to vote are registered to do so.
Id. at 72a. On that
basis, the District Court inferred that "past discrimination has
had an adverse effect on black voter registration which lingers to
this date."
Ibid. Past discrimination against blacks in
education also had the same effect. Not only did Burke County
schools discriminate against blacks as recently as 1969, but also
some schools
Page 458 U. S. 625
still remain essentially segregated, and blacks, as a group,
have completed less formal education than whites.
Id. at
74a.
The District Court found further evidence of exclusion from the
political process. Past discrimination had prevented blacks from
effectively participating in Democratic Party affairs and in
primary elections. Until this lawsuit was filed, there had never
been a black member of the County Executive Committee of the
Democratic Party. There were also property ownership requirements
that made it difficult for blacks to serve as chief registrar in
the county. There had been discrimination in the selection of grand
jurors, the hiring of county employees, and in the appointments to
boards and committees which oversee the county government.
Id. at 74a-76a. The District Court thus concluded that
historical discrimination had restricted the present opportunity of
blacks effectively to participate in the political process.
Evidence of historical discrimination is relevant to drawing an
inference of purposeful discrimination, particularly in cases such
as this one where the evidence shows that discriminatory practices
were commonly utilized, that they were abandoned when enjoined by
courts or made illegal by civil rights legislation, and that they
were replaced by laws and practices which, though neutral on their
face, serve to maintain the
status quo.
Extensive evidence was cited by the District Court to support
its finding that elected officials of Burke County have been
unresponsive and insensitive to the needs of the black community,
[
Footnote 9] which increases
the likelihood that the political process was not equally open to
blacks. This evidence ranged from the effects of past
discrimination which still
Page 458 U. S. 626
haunt the county courthouse to the infrequent appointment of
blacks to county boards and committees; the overtly discriminatory
pattern of paving county roads; the reluctance of the county to
remedy black complaints, which forced blacks to take legal action
to obtain school and grand jury desegregation; and the role played
by the County Commissioners in the incorporation of an all-white
private school to which they donated public funds for the purchase
of band uniforms.
Id. at 77a-82a.
The District Court also considered the depressed socioeconomic
status of Burke County blacks. It found that proportionately more
blacks than whites have incomes below the poverty level.
Id. at 83a. Nearly 53% of all black families living in
Burke County had incomes equal to or less than three-fourths of a
poverty-level income.
Ibid. Not only have blacks completed
less formal education than whites, but also the education they have
received "was qualitatively inferior to a marked degree."
Id. at 84a. Blacks tend to receive less pay than whites,
even for similar work, and they tend to be employed in menial jobs
more often than whites.
Id. at 85a. Seventy-three percent
of houses occupied by blacks lacked all or some plumbing
facilities; only 16% of white-occupied houses suffered the same
deficiency.
Ibid. The District Court concluded that the
depressed socioeconomic status of blacks results in part from "the
lingering effects of past discrimination."
Ibid.
Although finding that the state policy behind the at-large
electoral system in Burke County was "neutral in origin," the
District Court concluded that the policy "has been subverted to
invidious purposes."
Id. at 90a. As a practical matter,
maintenance of the state statute providing for at-large elections
in Burke County is determined by Burke County's state
representatives, for the legislature defers to their wishes on
matters of purely local application. The court found that Burke
County's state representatives "have retained a system which has
minimized the ability of Burke County Blacks to participate in the
political system."
Ibid.
Page 458 U. S. 627
The trial court considered, in addition, several factors which
this Court has indicated enhance the tendency of multimember
districts to minimize the voting strength of racial minorities.
See Whitcomb v. Chavis, 403 U.S. at
403 U. S.
143-144. It found that the sheer geographic size of the
county, which is nearly two-thirds the size of Rhode Island, "has
made it more difficult for Blacks to get to polling places or to
campaign for office." App. to Juris.Statement 91a. The court
concluded, as a matter of law, that the size of the county tends to
impair the access of blacks to the political process.
Id.
at 92a. The majority vote requirement, Ga.Code § 34-1513
(Supp.1980), was found "to submerge the will of the minority," and
thus "deny the minority's access to the system." App. to
Juris.Statement 92a. The court also found the requirement that
candidates run for specific seats, Ga.Code § 34-1015 (1978),
enhances appellees' lack of access because it prevents a cohesive
political group from concentrating on a single candidate. Because
Burke County has no residency requirement, "[a]ll candidates could
reside in Waynesboro, or in
lilly-white' [sic]
neighborhoods. To that extent, the denial of access becomes
enhanced." App. to Juris.Statement 93a.
None of the District Court's findings underlying its ultimate
finding of intentional discrimination appears to us to be clearly
erroneous, and as we have said, we decline to overturn the
essential finding of the District Court, agreed to by the Court of
Appeals, that the at-large system in Burke County has been
maintained for the purpose of denying blacks equal access to the
political processes in the county. As in
White v.
Regester, 412 U.S. at
412 U. S. 767, the District Court's findings were
"sufficient to sustain [its] judgment . . . and, on this record, we
have no reason to disturb them."
IV
We also find no reason to overturn the relief ordered by the
District Court. Neither the District Court nor the Court of Appeals
discerned any special circumstances that would militate
Page 458 U. S. 628
against utilizing single-member districts. Where
"a constitutional violation has been found, the remedy does not
'exceed' the violation if the remedy is tailored to cure the
'condition that offends the Constitution.'"
Milliken v. Bradley, 433 U. S. 267,
433 U. S. 282
(1977) (emphasis deleted), quoting
Milliken v. Bradley,
418 U. S. 717,
418 U. S. 738
(1974). [
Footnote 10]
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
U.S. Dept. of Commerce, Bureau of the Census, County and City
Data Book 1977, p. 90 (1978).
[
Footnote 2]
U.S. Dept. of Commerce, Bureau of the Census, 1980 Census of
Population and Housing, PHC80-V-12, p. 5 (Mar.1981). In 1930, Burke
County had a total population of 29,224, of whom 22,698 or 78% were
black. U.S. Dept. of Commerce, Bureau of the Census, II
Characteristics of the Population, pt. 2, p. 229 (1943). The
percentage of blacks in the total population of Burke County has
steadily diminished over the last 50 years.
[
Footnote 3]
App. to Juris.Statement 72a.
[
Footnote 4]
The District Court's judgment was stayed pending appeal to the
Court of Appeals. 439 U.S. 948 (1978). The Court of Appeals stayed
its mandate on April 6, 1981, pending disposition of the case
here.
[
Footnote 5]
Purposeful racial discrimination invokes the strictest scrutiny
of adverse differential treatment. Absent such purpose,
differential impact is subject only to the test of rationality.
Washington v. Davis, 426 U.S. at
426 U. S.
247-248.
[
Footnote 6]
With respect to the Fifteenth Amendment, the plurality held that
the Amendment prohibits only direct, purposefully discriminatory
interference with the freedom of Negroes to vote.
"Having found that Negroes in Mobile 'register and vote without
hindrance,' the District Court and Court of Appeals were in error
in believing that the appellants invaded the protection of [the
Fifteenth] Amendment in the present case."
Mobile v. Bolden, 446 U.S. at
446 U. S. 65.
Three Justices disagreed with the plurality's basis for putting
aside the Fifteenth Amendment.
Id. at
446 U. S. 84, n.
3 (STEVENS, J., concurring in judgment);
id. at
446 U. S. 102
(WHITE, J., dissenting);
id. at
446 U. S.
125-135 (MARSHALL, J., dissenting). We express no view
on the application of the Fifteenth Amendment to this case.
The plurality noted that plaintiffs' claim under § 2 of the
Voting Rights Act, 79 Stat. 437, as amended, 42 U.S.C. § 1973,
added nothing to their Fifteenth Amendment claim because the
"legislative history of § 2 makes clear that it was intended to
have an effect no different from that of the Fifteenth Amendment
itself." 446 U.S. at
446 U. S.
60-61.
[
Footnote 7]
We specifically affirmed the judgment below "without approval of
the constitutional views expressed by the Court of Appeals." 424
U.S. at
424 U. S.
638.
[
Footnote 8]
The primary factors listed in
Zimmer include a lack of
minority access to the candidate selection process,
unresponsiveness of elected officials to minority interests, a
tenuous state policy underlying the preference for multimember or
at-large districting, and the existence of past discrimination
which precludes effective participation in the electoral process.
485 F.2d at 1305. Factors which enhance the proof of voting
dilution are the existence of large districts, anti-single-shot
voting provisions, and the absence of any provision for at-large
candidates to run from geographic subdistricts.
Ibid.
[
Footnote 9]
The Court of Appeals held that "proof of unresponsiveness by the
public body in question to the group claiming injury" is an
essential element of a claim of voting dilution under the
Fourteenth Amendment. 639 F.2d at 1375. Under our cases, however,
unresponsiveness is an important element, but only one of a number
of circumstances a court should consider in determining whether
discriminatory purpose may be inferred.
[
Footnote 10]
Appellants contend that the District Court should not have
divided Burke County into five districts, but should have allowed
appellants to devise a plan for subdividing the county and to
submit their plan for preclearance under § 5 of the Voting Rights
Act, 79 Stat. 439, as amended, 42 U.S.C. § 1973C. This contention
was not properly raised in the Court of Appeals, and was not
addressed by that court. We therefore do not address it.
See
Adickes v. S. H. Kress & Co., 398 U.
S. 144,
398 U. S. 147,
n. 2 (1970).
Appellants also contend that the doctrine of unconstitutional
dilution of voting rights arising from an at-large election system
does not apply to county governing bodies. We find no merit to this
contention, having previously affirmed a judgment that at-large
elections for the governing body of a parish (county)
unconstitutionally diluted black voting strength.
East Carroll
Parish School Bd. v. Marshall, 424 U.
S. 636 (1976).
JUSTICE POWELL, with whom JUSTICE REHNQUIST joins,
dissenting.
I
Mobile v. Bolden, 446 U. S. 55
(1980), establishes that an at-large voting system must be upheld
against constitutional attack unless maintained for a
discriminatory purpose. In
Mobile, we reversed a finding
of unconstitutional vote dilution because the lower courts had
relied on factors insufficient as a matter of law to establish
discriminatory intent.
See id. at
446 U. S. 73
(plurality opinion of Stewart, J.). The District Court and Court of
Appeals in this case based their findings of unconstitutional
discrimination on the same factors held insufficient in
Mobile. Yet the Court now finds their conclusion
unexceptionable. The
Mobile plurality also affirmed
Page 458 U. S. 629
that the concept of "intent" was no mere fiction, and held that
the District Court had erred in "its failure to identify the state
officials whose intent it considered relevant."
Id. at
446 U. S. 74, n.
20. Although the courts below did not answer that question in this
case, the Court today affirms their decision.
Whatever the wisdom of
Mobile, the Court's opinion
cannot be reconciled persuasively with that case. There are some
variances in the largely sociological evidence presented in the two
cases. But
Mobile held that this
kind of evidence
was not enough. Such evidence, we found in
Mobile, did not
merely fall short, but
"fell
far short[,] of showing that [an at-large
electoral scheme was] 'conceived or operated [as a] purposeful
devic[e] to further racial . . . discrimination.'"
Id. at 70 (emphasis added), quoting
Whitcomb v.
Chavis, 403 U. S. 124,
403 U. S. 149
(1971). Because I believe that
Mobile controls this case,
I dissent.
II
The Court's decision today relies heavily on the capacity of the
federal district courts -- essentially free from any standards
propounded by this Court -- to determine whether at-large voting
systems are "being maintained for the invidious purpose of diluting
the voting strength of the black population."
Ante at
458 U. S. 622.
Federal courts thus are invited to engage in deeply subjective
inquiries into the motivations of local officials in structuring
local governments. Inquiries of this kind not only can be
"unseemly,"
see Karst, The Costs of Motive-Centered
Inquiry, 15 San Diego L.Rev. 1163, 1164 (1978); they intrude the
federal courts -- with only the vaguest constitutional direction --
into an area of intensely local and political concern.
Emphasizing these considerations, JUSTICE STEVENS,
post
at
458 U. S.
642-650, argues forcefully that the Court's focus of
inquiry is seriously mistaken. I agree with much of what he says.
As I do not share his views entirely, however, I write
separately.
Page 458 U. S. 630
A
As I understand it, JUSTICE STEVENS' critique of the Court's
approach rests on three principles with which I am in fundamental
agreement.
First, it is appropriate to distinguish between "state action
that inhibits an individual's right to vote and state action that
affects the political strength of various groups."
Mobile v.
Bolden, supra, at
446 U. S. 83
(STEVENS, J., concurring in judgment);
see post at
458 U. S. 632,
458 U. S.
637-638, n. 16. Under this distinction, this case is
fundamentally different from cases involving direct barriers to
voting. There is no claim here that blacks may not register freely
and vote for whom they choose. This case also differs from one-man,
one-vote cases, in which districting practices make a person's vote
less weighty in some districts than in others.
Second, I agree with JUSTICE STEVENS that vote dilution cases of
this kind are difficult, if not impossible, to distinguish --
especially in their remedial aspect -- from other actions to
redress gerrymanders.
See post at
458 U. S.
650-653.
Finally, JUSTICE STEVENS clearly is correct in arguing that the
standard used to identify unlawful racial discrimination in this
area should be defined in terms that are judicially manageable and
reviewable.
See post at
458 U. S. 633,
458 U. S.
642-650. In the absence of compelling reasons of both
law and fact, the federal judiciary is unwarranted in undertaking
to restructure state political systems. This is inherently a
political area, where the identification of a seeming violation
does not necessarily suggest an enforceable judicial remedy -- or
at least none short of a system of quotas or group representation.
Any such system, of course, would be antithetical to the principles
of our democracy.
B
JUSTICE STEVENS would accommodate these principles by holding
that subjective intent is irrelevant to the establishment of a case
of racial vote dilution under the Fourteenth Amendment.
See
post at
458 U. S. 637.
Despite sharing the concerns
Page 458 U. S. 631
from which his position is developed, I would not accept this
view.
"The central purpose of the Equal Protection Clause of the
Fourteenth Amendment is the prevention of official conduct
discriminating on the basis of race."
Washington v. Davis, 426 U. S. 229,
426 U. S. 239
(1976). Because I am unwilling to abandon this central principle in
cases of this kind, I cannot join JUSTICE STEVENS' opinion.
Nonetheless, I do agree with him that what he calls "objective"
factors should be the focus of inquiry in vote-dilution cases.
Unlike the considerations on which the lower courts relied in this
case and in
Mobile, the factors identified by JUSTICE
STEVENS as "objective" in fact are direct, reliable, and
unambiguous indices of discriminatory intent. If we held, as I
think we should, that the district courts must place primary
reliance on these factors to establish discriminatory intent, we
would prevent federal court inquiries into the subjective thought
processes of local officials -- at least until enough objective
evidence had been presented to warrant discovery into subjective
motivations in this complex, politically charged area. By
prescribing such a rule, we would hold federal courts to a standard
that was judicially manageable. And we would remain faithful to the
central protective purpose of the Equal Protection Clause.
In the absence of proof of discrimination by reliance on the
kind of objective factors identified by JUSTICE STEVENS, I would
hold that the factors cited by the Court of Appeals are too
attenuated as a matter of law to support an inference of
discriminatory intent. I would reverse its judgment on that
basis.
JUSTICE STEVENS, dissenting.
Our legacy of racial discrimination has left its scars on Burke
County, Georgia. [
Footnote 2/1] The
record in this case amply supports
Page 458 U. S. 632
the conclusion that the governing officials of Burke County have
repeatedly denied black citizens rights guaranteed by the
Fourteenth and Fifteenth Amendments to the Federal Constitution. No
one could legitimately question the validity of remedial measures,
whether legislative or judicial, designed to prohibit
discriminatory conduct by public officials and to guarantee that
black citizens are effectively afforded the rights to register and
to vote. Public roads may not be paved only in areas in which white
citizens live; [
Footnote 2/2] black
citizens may not be denied employment opportunities in county
government; [
Footnote 2/3]
segregated schools may not be maintained. [
Footnote 2/4]
Nor, in my opinion, could there be any doubt about the
constitutionality of an amendment to the Voting Rights Act that
would require Burke County and other covered jurisdictions to
abandon specific kinds of at-large voting schemes that perpetuate
the effects of past discrimination.
"As against the reserved powers of the States, Congress may use
any rational means to effectuate the constitutional prohibition of
racial discrimination in voting."
South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 324.
It might indeed be wise policy to accelerate the transition of
minority groups to a position of political power commensurate with
their voting strength by amending the Act to prohibit the use of
multimember districts in all covered jurisdictions.
The Court's decision today, however, is not based on either its
own conception of sound policy or any statutory command. The
decision rests entirely on the Court's interpretation of the
requirements of the Federal Constitution. Despite my sympathetic
appraisal of the Court's laudable goals, I am unable to agree with
its approach to the constitutional issue that
Page 458 U. S. 633
is presented. In my opinion, this case raises questions that
encompass more than the immediate plight of disadvantaged black
citizens. I believe the Court errs by holding the structure of the
local governmental unit unconstitutional without identifying an
acceptable, judicially manageable standard for adjudicating cases
of this kind.
I
The Court's entry into the business of electoral reapportionment
in 1962 was preceded by a lengthy and scholarly debate over the
role the judiciary legitimately could play in what Justice
Frankfurter described in
Colegrove v. Green, 328 U.
S. 549, as a "political thicket." [
Footnote 2/5] In that case, decided in 1946, the Court
declined to entertain a challenge to single-member congressional
districts in Illinois that had been created
Page 458 U. S. 634
in 1901 and had become grossly unequal by reason of the great
growth in urban population. [
Footnote
2/6] In dissent, Justice Black advocated the use of a
statewide, at-large election of representatives; he argued that an
at-large election
"has an element of virtue that the more convenient method does
not have -- namely, it does not discriminate against some groups to
favor others, it gives all the people an equally effective voice in
electing their representatives as is essential under a free
government, and it is constitutional."
Id. at
328 U. S.
574.
In 1962, the Court changed course. In another challenge to the
constitutionality of a 1901 districting statute, it held that the
political question doctrine did not foreclose judicial review.
Baker v. Carr, 369 U. S. 186.
That decision represents one of the great landmarks in the history
of this Court's jurisprudence.
Two aspects of the Court's opinion in
Baker v. Carr are
of special relevance to the case the Court decides today. First,
the Court's scholarly review of the political question doctrine
focused on the dominant importance of satisfactory standards for
judicial determination. [
Footnote
2/7] Second, the Court's articulation
Page 458 U. S. 635
of the relevant constitutional standard made no reference to
subjective intent. [
Footnote 2/8]
The host of cases that have arisen in the wake of
Baker v.
Carr have shared these two characteristics. They have
formulated, refined, and applied a judicially manageable standard
that has become known as the one-person, one-vote rule; they have
attached no significance to the subjective intent of the
decisionmakers who adopted or maintained the official rule under
attack.
In reviewing the constitutionality of the structure of a local
government, two quite different methods of analysis could be
employed. The Court might identify the specific features of the
government that raise constitutional concerns and decide whether,
singly or in combination, they are valid. This is the approach the
Court has used in testing the constitutionality of rules
conditioning the right to vote on payment of a poll tax, [
Footnote 2/9] imposing burdens on
independent candidates, [
Footnote
2/10] denying
Page 458 U. S. 636
new residents or members of the Armed Forces the right to vote,
[
Footnote 2/11] prohibiting
crossovers in party primaries, [
Footnote 2/12] requiring political candidates to pay
filing fees, [
Footnote 2/13] and
disadvantaging minority parties in Presidential elections.
[
Footnote 2/14] In none of these
cases did the validity of the electoral procedure turn on whether
the legislators who enacted the rule subjectively intended to
discriminate against minority voters. Under the approach employed
by the Court in those cases, the objective circumstances that led
to a declaration that an election procedure was unconstitutional
would invalidate a similar law wherever it might be found.
Alternatively, the Court could employ a subjective approach
under which the constitutionality of a challenged procedure depends
entirely on federal judges' appraisals of the reasons why
particular localities have chosen to govern themselves in a
particular way. The Constitution would simply protect a right to
have an electoral machinery established and maintained without the
influence of impermissible factors. Constitutional challenges to
identical procedures in neighboring communities could produce
totally different results, for the subjective motivations of the
legislators who enacted the procedures -- or at least the
admissible evidence that might be discovered concerning such
motivation -- could be quite different.
In deciding the question presented in this case, the Court
abruptly rejects the former approach and considers only the latter.
It starts from the premise that Burke County's at-large
Page 458 U. S. 637
method of electing its five county commissioners is, on its
face, unobjectionable. The otherwise valid system is
unconstitutional, however, because it makes it more difficult for
the minority to elect commissioners and because the majority that
is now in power has maintained the system for that very reason. Two
factors are apparently of critical importance: (1) the intent of
the majority to maintain control; and (2) the racial character of
the minority. [
Footnote 2/15]
I am troubled by each aspect of the Court's analysis. In my
opinion, the question whether Burke County's at-large system may
survive scrutiny under a purely objective analysis is not nearly as
easy to answer as the Court implies. Assuming, however, that the
system is otherwise valid, I do not believe that the subjective
intent of the persons who adopted the system in 1911, or the intent
of those who have since declined to change it, can determine its
constitutionality. Even if the intent of the political majority
were the controlling constitutional consideration, I could not
agree that the only political groups that are entitled to
protection under the Court's rule are those defined by racial
characteristics.
II
At-large voting systems generally tend to maximize the political
power of the majority.
See ante at
458 U. S. 616.
[
Footnote 2/16] There are,
Page 458 U. S. 638
however, many types of at-large electoral schemes. Three
features of Burke County's electoral system are noteworthy, not in
my opinion because they shed special light on the subjective intent
of certain unidentified people, but rather because they make it
especially difficult for a minority candidate to win an election.
First, although the qualifications and the duties of the office are
identical for all five commissioners, each runs for a separately
designated position. [
Footnote
2/17]
Page 458 U. S. 639
Second, in order to be elected, each commissioner must receive a
majority of all votes cast in the primary and in the general
election; if the leading candidate receives only a plurality, a
runoff election must be held. Third, there are no residency
requirements; thus, all candidates could reside in a single,
all-white neighborhood. [
Footnote
2/18]
Even if one assumes that a system of local government in which
power is concentrated in the hands of a small group of persons
elected from the community at large is an acceptable -- or perhaps
even a preferred -- form of municipal government, [
Footnote 2/19] it is not immediately apparent that
these additional
Page 458 U. S. 640
features that help to perpetuate the power of an entrenched
majority are either desirable or legitimate. [
Footnote 2/20] If the only purpose these features
serve -- particularly when viewed in combination -- is to assist a
dominant party to maintain its political power, they are no more
legitimate than the Tennessee districts described in
Baker v.
Carr as "
no policy, but simply arbitrary and
capricious action." 369 U.S. at
369 U. S. 226
(emphasis in original). Unless these features are independently
justified, they may be invalid simply because there is no
legitimate justification for their impact on minority participation
in elections. [
Footnote 2/21]
In this case, appellees have not argued -- presumably because
they assumed that this Court's many references to the requirement
of proving an improper motive in equal protection cases are
controlling in this new context -- that the special features of
Burke County's at-large system have such an
Page 458 U. S. 641
adverse impact on the minority's opportunity to participate in
the political process that this type of government deprives the
minority of equal protection of the law. Nor have the appellants
sought to identify legitimate local policies that might justify the
use of such rules. As a result, this record does not provide an
adequate basis for determining the validity of Burke County's
governmental structure on the basis of traditional objective
standards. [
Footnote 2/22]
If the governmental structure were itself found to lack a
legitimate justification, inquiry into subjective intent would
clearly be unnecessary. As JUSTICE MARSHALL stated in his dissent
in
Mobile:
"Whatever may be the merits of applying motivational analysis to
the allocation of constitutionally gratuitous benefits, that
approach is completely misplaced where, as here, it is applied to
the distribution of a constitutionally protected interest."
446 U.S. at
446 U. S. 121.
[
Footnote 2/23] Under the
Page 458 U. S. 642
Court's analysis, however, the characteristics of the particular
form of government under attack are virtually irrelevant. Not only
would the Court's approach uphold an arbitrary -- but not invidious
-- system that lacked independent justification, it would
invalidate -- if a discriminatory intent were proved -- a local
rule that would be perfectly acceptable absent a showing of
invidious intent. The Court's standard applies not only to Burke
County and to multimember districts, but to any other form of
government as well.
III
Ever since I joined the Court, I have been concerned about the
Court's emphasis on subjective intent as a criterion for
constitutional adjudication. [
Footnote 2/24] Although that criterion is often
Page 458 U. S. 643
regarded as a restraint on the exercise of judicial power, it
may in fact provide judges with a tool for exercising power that
otherwise would be confined to the legislature. [
Footnote 2/25] My principal concern with the
subjective intent standard, however, is unrelated to the quantum of
power it confers upon the judiciary. It is based on the quality of
that power. For, in the long run, constitutional adjudication that
is premised on a case-by-case appraisal of the subjective intent of
local decisionmakers cannot possibly satisfy the requirement of
impartial administration of the law that is embodied in the Equal
Protection Clause of the Fourteenth Amendment.
The facts of this case illustrate the ephemeral character of a
constitutional standard that focuses on subjective intent. When the
suit was filed in 1976, approximately 58 percent of the population
of Burke County was black, and approximately 42 percent was white.
Because black citizens had been denied access to the political
process -- through means that have since been outlawed by the
Voting Rights Act of 1965 -- and because there had been
insufficient time to enable the registration of black voters to
overcome the history of past injustice, the majority of registered
voters in the county were white. The at-large electoral system
therefore served, as a result of the presence of bloc voting, to
maintain white control of the local government. Whether it would
have continued to do so would have depended on a mix of at least
three different factors -- the continuing increase in voter
registration among blacks, the continuing exodus of black residents
from the county, and the extent to which racial bloc voting
continued to dominate local politics.
If those elected officials in control of the political machinery
had formed the judgment that these factors created a likelihood
that a bloc of black voters was about to achieve sufficient
strength to elect an entirely new administration, they
Page 458 U. S. 644
might have decided to abandon the at-large system and substitute
five single-member districts with the boundary lines drawn to
provide a white majority in three districts and a black majority in
only two. Under the Court's intent standard, such a change
presumably would violate the Fourteenth Amendment. It is ironic
that the remedy ordered by the District Court fits that pattern
precisely. [
Footnote 2/26]
If votes continue to be cast on a racial basis, the judicial
remedy virtually guarantees that whites will continue to control a
majority of seats on the County Board. It is at least possible that
white control of the political machinery has been frozen by
judicial decree at a time when increased black voter registration
might have led to a complete change of administration. Since the
federal judge's intent was unquestionably benign, rather than
invidious -- and, unlike that of state officials, is presumably not
subject in any event to the Court's standard -- that result has
been accomplished without violating the Federal Constitution.
In the future, it is not inconceivable that the white officials
who are likely to remain in power under the District Court's plan
will desire to perpetuate that system and to continue to control a
majority of seats on the County Board. Under this Court's standard,
if some of those officials harbor such an intent for an "invidious"
reason, the District Court's plan will itself become
unconstitutional. It is not clear whether the invidious intent
would have to be shared by all three white
Page 458 U. S. 645
commissioners, by merely a majority of two, or by simply one if
he were influential. It is not clear whether the issue would be
affected by the intent of the two black commissioners, who might
fear that a return to an at-large system would undermine the
certainty of two black seats. [
Footnote 2/27] Of course, if the subjective intent of
these officials were such as to mandate a change to a governmental
structure that would permit black voters to elect an all-black
commission -- and if black voters did so -- those black officials
could not harbor an intent to maintain the system to keep whites
from returning to power. In sum, as long as racial consciousness
exists in Burke County, its governmental structure is subject to
attack. Perhaps those more familiar than I with political
maneuvering will be able to identify with greater accuracy and
reliability those subjective intentions that are legitimate and
those that are not. Because judges may not possess such expertise,
however, I am afraid the Court is planting seeds that may produce
an unexpected harvest.
The costs and the doubts associated with litigating questions of
motive, which are often significant in routine trials, will be
especially so in cases involving the "motives" of legislative
bodies. [
Footnote 2/28] Often
there will be no evidence that the governmental
Page 458 U. S. 646
system was
adopted for a discriminatory reason.
[
Footnote 2/29] The reform
movement in municipal government,
see 458
U.S. 613fn2/19|>n.19,
supra, or an attempt to
comply with the strictures of
Reynolds v. Sims,
377 U. S. 533, may
account for the enactment of
Page 458 U. S. 647
countless at-large systems. In such a case, the question becomes
whether the system was
maintained for a discriminatory
purpose. Whose intentions control? Obviously, not the voters,
although they may be most responsible for the attitudes and actions
of local government. [
Footnote
2/30] Assuming that it is the intentions of the "state actors"
that is critical, how will their mental processes be discovered?
Must a specific proposal for change be defeated? What if different
motives are held by different legislators or, indeed, by a single
official? Is a selfish desire to stay in office sufficient to
justify a failure to change a governmental system?
The Court avoids these problems by failing to answer the very
question that its standard asks. Presumably, according to the
Court's analysis, the Burke County governmental structure is
unconstitutional because it was maintained at some point for an
invidious purpose. Yet the Court scarcely identifies the manner in
which changes to a county governmental structure are made. There is
no reference to any unsuccessful attempt to replace the at-large
system with single-member districts. It is incongruous that
subjective intent is identified as the constitutional standard, and
yet the persons who allegedly harbored an improper intent are never
identified or mentioned. Undoubtedly, the evidence relied on by the
Court proves that racial prejudice has played an important role in
the history of Burke County and has motivated many wrongful acts by
various community leaders. But unless that evidence is sufficient
to prove that
every governmental action was motivated by a
racial animus -- and may be remedied by a federal court -- the
Court has failed under its own test to demonstrate that the
governmental structure of Burke County was maintained for a
discriminatory purpose.
Certainly governmental action should not be influenced by
irrelevant considerations. I am not convinced, however,
Page 458 U. S. 648
that the Constitution affords a right -- and this is the
only right the Court finds applicable in this case -- to
have every official decision made without the influence of
considerations that are in some way "discriminatory." Is the
failure of a state legislature to ratify the Equal Rights Amendment
invalid if a federal judge concludes that a majority of the
legislators harbored stereotypical views of the proper role of
women in society? Is the establishment of a memorial for Jews
slaughtered in World War II unconstitutional if civic leaders
believe that their cause is more meritorious than that of
victimized Palestinian refugees? Is the failure to adopt a state
holiday for Martin Luther King, Jr., invalid if it is proved that
state legislators believed that he does not deserve to be
commemorated? Is the refusal to provide Medicaid funding for
abortions unconstitutional if officials intend to discriminate
against women who would abort a fetus? [
Footnote 2/31]
A rule that would invalidate all governmental action motivated
by racial, ethnic, or political considerations is too broad.
Moreover, in my opinion the Court is incorrect in assuming that the
intent of elected officials is invidious when they are motivated by
a desire to retain control of the local political machinery. For
such an intent is surely characteristic
Page 458 U. S. 649
of politicians throughout the country. In implementing that sort
of purpose, dominant majorities have used a wide variety of
techniques to limit the political strength of aggressive
minorities. In this case, the minority is defined by racial
characteristics, but minority groups seeking an effective political
voice can, of course, be identified in many other ways. The Hasidic
Jews in Kings County, N.Y., [
Footnote
2/32] the Puerto Ricans in Chicago, [
Footnote 2/33] the Spanish-speaking citizens in Dallas,
[
Footnote 2/34] the Bohemians in
Cedar Rapids, [
Footnote 2/35] the
Federalists in Massachusetts, [
Footnote 2/36] the Democrats in Indiana, [
Footnote 2/37] and the Republicans in
California [
Footnote 2/38] have
all been disadvantaged by deliberate political maneuvers by the
dominant majority. As I have stated, a device that serves no
purpose other than to exclude minority groups from effective
political participation is unlawful under objective standards. But
if a political majority's intent to maintain control of a
legitimate local government is sufficient to invalidate any
electoral device that makes it more difficult for a minority group
to elect candidates -- regardless of the nature of the interest
that gives the minority group cohesion -- the Court is not just
entering a "political thicket"; it is entering a vast wonderland of
judicial review of political activity.
The obvious response to this suggestion is that this case
involves a racial group and that governmental decisions that
disadvantage such a group must be subject to special scrutiny under
the Fourteenth Amendment. I therefore must
Page 458 U. S. 650
consider whether the Court's holding can legitimately be
confined to political groups that are identified by racial
characteristics.
IV
Governmental action that discriminates between individuals on
the basis of their race is, at the very least, presumptively
irrational. [
Footnote 2/39] For
an individual's race is virtually always irrelevant to his right to
enjoy the benefits and to share the responsibilities of citizenship
in a democratic society. Persons of different races, like persons
of different religious faiths and different political beliefs, are
equal in the eyes of the law.
Groups of every character may associate together to achieve
legitimate common goals. If they voluntarily identify themselves by
a common interest in a specific issue, by a common ethnic heritage,
by a common religious belief, or by their race, that characteristic
assumes significance as the bond that gives the group cohesion and
political strength. When referring to different kinds of political
groups, this Court has consistently indicated that, to borrow
JUSTICE BRENNAN's phrasing, the Equal Protection Clause does not
make some groups of citizens more equal than others.
See Zobel
v. Williams, 457 U. S. 55,
457 U. S. 71
(BRENNAN, J., concurring). Thus, the Court has considered
challenges to discrimination based on "differences of color, race,
nativity, religious opinions [or] political affiliations,"
American Sugar Refining Co. v. Louisiana, 179 U. S.
89,
179 U. S. 92; to
redistricting plans that serve "to further racial or economic
discrimination,"
Whitcomb v. Chavis, 403 U.
S. 124,
403 U. S. 149;
to biases "tending to favor particular political interests or
geographic areas."
Abate v. Mundt, 403 U.
S. 182,
403 U. S. 187.
Indeed, in its
Page 458 U. S. 651
opinion today, the Court recognizes that the practical impact of
the electoral system at issue applies equally to any "distinct
minority, whether it be a racial, ethnic, economic, or political
group."
Ante at
458 U. S.
616.
A constitutional standard that gave special protection to
political groups identified by racial characteristics would be
inconsistent with the basic tenet of the Equal Protection Clause.
Those groups are no more or no less able to pursue their interests
in the political arena than are groups defined by other
characteristics. Nor can it be said that racial alliances are so
unrelated to political action that any electoral decision that is
influenced by racial consciousness -- as opposed to other forms of
political consciousness -- is inherently irrational. For it is the
very political power of a racial or ethnic group that creates a
danger that an entrenched majority will take action contrary to the
group's political interests.
"The mere fact that a number of citizens share a common ethnic,
racial, or religious background does not create the need for
protection against gerrymandering. It is only when their common
interests are strong enough to be manifested in political action
that the need arises. Thus the characteristic of the group which
creates the need for protection is its political character."
Cousins v. City Council of Chicago, 466 F.2d 830, 852
(CA7 1972) (Stevens, J., dissenting),
cert. denied, 409
U.S. 893. It would be unrealistic to distinguish racial groups from
other political groups on the ground that race is an irrelevant
factor in the political process.
Racial consciousness and racial association are not desirable
features of our political system. We all look forward to the day
when race is an irrelevant factor in the political process. In my
opinion, however, that goal will best be achieved by eliminating
the vestiges of discrimination that motivate disadvantaged racial
and ethnic groups to vote as identifiable units. Whenever
identifiable groups in our society are disadvantaged, they will
share common political interests and tend to vote as a "bloc." In
this respect, racial groups are
Page 458 U. S. 652
like other political groups. A permanent constitutional rule
that treated them differently would, in my opinion, itself tend to
perpetuate race as a feature distinct from all others; a trait that
makes persons different in the eyes of the law. Such a rule would
delay -- rather than advance -- the goal advocated by Justice
Douglas:
"When racial or religious lines are drawn by the State, the
multiracial, multireligious communities that our Constitution seeks
to weld together as one become separatist; antagonisms that relate
to race or to religion, rather than to political issues, are
generated; communities seek not the best representative, but the
best racial or religious partisan. Since that system is at war with
the democratic ideal, it should find no footing here."
Wright v. Rockefeller, 376 U. S.
52,
376 U. S. 67
(dissenting opinion).
My conviction that all minority groups are equally entitled to
constitutional protection against the misuse of the majority's
political power does not mean that I would abandon judicial review
of such action. As I have written before, a gerrymander as
grotesque as the boundaries condemned in
Gomillion v.
Lightfoot, 364 U. S. 339, is
intolerable whether it fences out black voters, Republican voters,
or Irish-Catholic voters.
Mobile v. Bolden, 446 U.S. at
446 U. S. 86
(opinion concurring in judgment). But if the standard the Court
applies today extends to all types of minority groups, it is either
so broad that virtually every political device is vulnerable or it
is so undefined that federal judges can pick and choose almost at
will among those that will be upheld and those that will be
condemned.
There are valid reasons for concluding that certain minority
groups -- such as the black voters in Burke County, Georgia --
should be given special protection from political oppression by the
dominant majority. But those are reasons that justify the
application of a legislative policy choice, rather than a
constitutional principle that cannot be confined to special
Page 458 U. S. 653
circumstances or to a temporary period in our history. Any
suggestion that political groups in which black leadership
predominates are in need of a permanent constitutional shield
against the tactics of their political opponents underestimates the
resourcefulness, the wisdom, and the demonstrated capacity of such
leaders. I cannot accept the Court's constitutional holding.
[
Footnote 2/40]
I respectfully dissent.
[
Footnote 2/1]
Certain vestiges of discrimination -- although clearly not the
most pressing problems facing black citizens today -- are a
haunting reminder of an all too recent period of our Nation's
history. The District Court found that a segregated laundromat is
operated within a few blocks of the county courthouse; at the
courthouse itself, faded paint over restroom doors does not
entirely conceal the words "colored" and "white."
[
Footnote 2/2]
See Dowdell v. City of Apopka, 511 F.
Supp. 1375 (MD Fla.1981).
[
Footnote 2/3]
42 U.S.C. § 2000e-2.
[
Footnote 2/4]
Brown v. Board of Education, 347 U.
S. 483.
[
Footnote 2/5]
In his much-criticized opinion announcing the judgment of the
Court, Justice Frankfurter wrote:
"Nothing is clearer than that this controversy concerns matters
that bring courts into immediate and active relations with party
contests. From the determination of such issues this Court has
traditionally held aloof. It is hostile to a democratic system to
involve the judiciary in the politics of the people. And it is not
less pernicious if such judicial intervention in an essentially
political contest be dressed up in the abstract phrases of the
law."
"
* * * *"
"Courts ought not to enter this political thicket. The remedy
for unfairness in districting is to secure State legislatures that
will apportion properly, or to invoke the ample powers of Congress.
The Constitution has many commands that are not enforceable by
courts because they clearly fall outside the conditions and
purposes that circumscribe judicial action. Thus, 'on Demand of the
executive Authority,' Art. IV, § 2, of a State it is the duty of a
sister State to deliver up a fugitive from justice. But the
fulfillment of this duty cannot be judicially enforced.
Kentucky
v. Dennison, 24 How. 66. The duty to see to it that
the laws are faithfully executed cannot be brought under legal
compulsion,
Mississippi v. Johnson, 4
Wall. 475. Violation of the great guaranty of a republican form of
government in States cannot be challenged in the courts.
Pacific Telephone Co. v. Oregon, 223 U. S.
118. The Constitution has left the performance of many
duties in our governmental scheme to depend on the fidelity of the
executive and legislative action and, ultimately, on the vigilance
of the people in exercising their political rights."
328 U.S. at
328 U. S.
553-554,
328 U. S.
556.
[
Footnote 2/6]
The districts ranged in population from 112,000 to 914,000
persons.
Id. at 557.
[
Footnote 2/7]
The Court stated that the "nonjusticiability of a political
question is primarily a function of the separation of powers." 369
U.S. at
369 U. S. 210.
It emphasized, however, that "the lack of satisfactory criteria for
a judicial determination" was a dominant consideration in
Coleman v. Miller, 307 U. S. 433,
307 U. S.
454-455; that whether a foreign relations question is
justiciable turns, in part, on "its susceptibility to judicial
handling"; that, in the presence of clearly definable criteria for
decision, "the political question barrier falls away"; and
that,
"even in private litigation which directly implicates no feature
of separation of powers, lack of judicially discoverable standards
and the drive for even-handed application may impel reference to
the political departments' determination of dates of hostilities'
beginning and ending."
369 U.S. at
369 U. S. 210,
369 U. S. 211,
369 U. S. 214.
Luther v.
Borden, 7 How. 1, was distinguished, in part,
because that case involved "the lack of criteria by which a court
could determine which form of government was republican"; the Court
stated that
"the only significance that
Luther could have for our
immediate purposes is in its holding that the Guaranty Clause is
not a repository of judicially manageable standards which a court
could utilize independently in order to identify a State's lawful
government."
369 U.S. at
369 U. S. 222,
223. In concluding that the reapportionment question before it was
justiciable, the Court emphasized that it would not be necessary
"to enter upon policy determinations for which judicially
manageable standards are lacking."
Id. at
369 U. S.
226.
[
Footnote 2/8]
The Court simply stated:
"Judicial standards under the Equal Protection Clause are well
developed and familiar, and it has been open to courts since the
enactment of the Fourteenth Amendment to determine, if on the
particular facts they must, that a discrimination reflects no
policy, but simply arbitrary and capricious action."
Ibid.
[
Footnote 2/9]
Harper v. Virginia Board of Elections, 383 U.
S. 663. The Court concluded that
"a State violates the Equal Protection Clause of the Fourteenth
Amendment whenever it makes the affluence of the voter or payment
of any fee an electoral standard. Voter qualifications have no
relation to wealth nor to paying or not paying this or any other
tax."
Id. at
383 U. S. 666.
"To introduce wealth or payment of a fee as a measure of a voter's
qualifications is to introduce a capricious or irrelevant factor."
Id. at
383 U. S. 668.
In dissent, Justice Black noted:
"It should be pointed out at once that the Court's decision is
to no extent based on a finding that the Virginia law as written or
as applied is being used as a device or mechanism to deny Negro
citizens of Virginia the right to vote on account of their
color."
Id. at
383 U. S.
672.
[
Footnote 2/10]
Storer v. Brown, 415 U. S. 724. The
Court stated that, in determining the constitutionality of
eligibility requirements for independent candidates, the
"inevitable question for judgment" is
"could a reasonably diligent independent candidate be expected
to satisfy the signature requirements, or will it be only rarely
that the unaffiliated candidate will succeed in getting on the
ballot?"
Id. at
415 U. S. 742.
See Mandel v. Bradley, 432 U. S. 173,
432 U. S. 177;
id. at
432 U. S. 181
(STEVENS, J., dissenting).
See also American Party of Texas v.
White, 415 U. S. 767,
415 U. S.
795.
[
Footnote 2/11]
Dunn v. Blumstein, 405 U. S. 330;
Carrington v. Rash, 380 U. S. 89.
[
Footnote 2/12]
Kusper v. Pontikes, 414 U. S. 51.
[
Footnote 2/13]
Lubin v. Panish, 415 U. S. 709;
Bullock v. Carter, 405 U. S. 134.
[
Footnote 2/14]
Williams v. Rhodes, 393 U. S. 23.
[
Footnote 2/15]
The Court's articulation of the applicable standard in this case
is somewhat puzzling. It states that this case is subject to "the
standard of proof generally applicable to Equal Protection Clause
cases."
Ante at
458 U. S. 617.
But later in the same paragraph, the Court indicates that its
special requirement of a showing of discriminatory intent merely
applies to equal protection cases "charging racial discrimination."
Ibid. The Court seems to imply that plaintiffs in equal
protection cases charging racial discrimination must surmount a
special hurdle in order to prevail. Yet the Court has unequivocally
stated that a "racial classification, regardless of purported
motivation, is presumptively invalid and can be upheld only upon an
extraordinary justification."
Personnel Administrator of Mass.
v. Feeney, 442 U. S. 256,
442 U. S.
272.
[
Footnote 2/16]
In the words of Chancellor Kent, the requirement of
districting
"was recommended by the wisdom and justice of giving, as far as
possible, to the local subdivisions of the people of each state, a
due influence in the choice of representatives, so as not to leave
the aggregate minority of the people in a state, though approaching
perhaps to a majority, to be wholly overpowered by the combined
action of the numerical majority, without any voice whatever in the
national councils."
1 J. Kent, Commentaries on American Law *230-*231, n. (c) (12th
ed. 1873).
See also Mobile v. Bolden, 446 U. S.
55,
446 U. S. 105,
n. 3 (MARSHALL, J., dissenting);
Whitcomb v. Chavis,
403 U. S. 124,
403 U. S.
158-160.
The challenge to multimember or at-large districts is, of
course, quite different from the challenge to the value of
individual votes considered in
Reynolds v. Sims,
377 U. S. 533. An
at-large system is entirely consistent with the one-person,
one-vote rule developed in that case. As Justice Stewart noted in
Mobile, in considering the applicability of Reynolds and
the cases that followed it:
"Those cases established that the Equal Protection Clause
guarantees the right of each voter to 'have his vote weighted
equally with those of all other citizens.' 377 U.S. at
377 U.S. 576. The Court recognized that
a voter's right to 'have an equally effective voice' in the
election of representatives is impaired where representation is not
apportioned substantially on a population basis. In such cases, the
votes of persons in more populous districts carry less weight than
do those of persons in smaller districts. There can be, of course,
no claim that the 'one person, one vote' principle has been
violated in this case, because the city of
Mobile is a
unitary electoral district and the Commission elections are
conducted at large. It is therefore obvious that nobody's vote has
been 'diluted' in the sense in which that word was used in the
Reynolds case."
446 U.S. at
446 U. S. 77-78
(plurality opinion).
See also id. at
446 U. S. 83
(STEVENS, J., concurring in judgment).
[
Footnote 2/17]
This feature distinguishes Burke County's at-large electoral
system from the municipal commission form of government popularized
by reformers shortly after the turn of the century and known as the
Galveston Plan or the Des Moines Plan.
See 458
U.S. 613fn2/19|>n.19,
infra.
[
Footnote 2/18]
Other features of certain at-large electoral schemes that make
it more difficult for a minority group to elect a favored candidate
when bloc voting occurs -- prohibitions against cumulative and
incomplete voting -- are not involved in this case. Prohibitions
against cumulative or partial voting are generally inapplicable in
electoral schemes involving numbered posts.
[
Footnote 2/19]
"During its evolution as a progressive solution to municipal
problems, the commission format was variously known as the
Galveston plan, the Texas idea, and the Des Moines plan. Since
Galveston invented the basic organization and Des Moines
popularized the addition of related reform techniques, the new type
of government is probably best described as the Galveston-Des
Moines plan. So popular did the new idea become that towns could
reap advertising benefits for being in the forefront of municipal
innovation if they used the commission plan. Consequently, some
cities boasted that they had the system, knowing full well that
their charters had little resemblance to Galveston's. But there
were certain essentials necessary before a city could claim
commission status. Benjamin DeWitt, an early historian of the
progressive movement, explained:"
" In every case, however, no matter how much charters may differ
as to minor details, they have certain fundamental features in
common. These fundamental features of commission charters are
four:"
" 1. Authority and responsibility are centralized."
" 2. The number of men in whom this authority and this
responsibility are vested is small."
" 3. These few men are elected from the city at large, and not
by wards or districts."
" 4. Each man is at the head of a single department."
"The most radical departure the new scheme made was the
combination of legislative and executive functions in one body. The
plan disregarded the federal model of separation of powers. Sitting
together, the commission was a typical policy- and ordinance-making
council; but, separately, each commissioner administered a specific
department on a day-to-day basis. The original Galveston charter
provided for a mayor-president plus commissioners of finance and
revenue, waterworks and sewerage, streets and public property, and
fire and police. Later commission cities followed a similar
division of responsibility."
B. Rice, Progressive Cities: The Commission Government Movement
in America, 1901-1920, pp. xiii-xiv (1977) (footnote omitted).
[
Footnote 2/20]
It is noteworthy that these features apparently characterize
many governmental units in jurisdictions that have been subjected
to the strictures of the Voting Rights Act as the result of prior
practices that excluded black citizens from the electoral process.
See generally The Voting Rights Act: Unfulfilled Goals, A
Report of the United States Commission on Civil Rights 38-50
(1981).
[
Footnote 2/21]
No group has a right to proportional representation.
See
Mobile v. Bolden, 446 U.S. at
446 U. S. 76
(plurality opinion);
id. at
446 U. S. 122
(MARSHALL, J., dissenting). But in a representative democracy,
meaningful participation by minority groups in the electoral
process is essential to ensure that representative bodies are
responsive to the entire electorate. For this reason, a challenged
electoral procedure may not be justified solely on the ground that
it serves to reduce the ability of a minority group to participate
effectively in the electoral process.
[
Footnote 2/22]
The record nevertheless does indicate that the validity of the
at-large system itself need not be decided in this case. For it is
apparent that elimination of the majority runoff requirement and
the numbered posts would enable a well-organized minority to elect
one or two candidates to the County Board. That consequence could
be achieved without replacing the at-large system itself with five
single-member districts. In other words, minority access to the
political process could be effected by invalidating specific rules
that impede that access and without changing the basic structure of
the local governmental unit.
See Mobile v. Bolden, supra,
at
446 U. S. 80
(BLACKMUN, J., concurring in result).
[
Footnote 2/23]
It is worth repeating the statement of Professor Ely noted by
JUSTICE MARSHALL:
"The danger I see is the somewhat different one that the Court,
in its newfound enthusiasm for motivation analysis, will seek to
export it to fields where it has no business. It therefore cannot
be emphasized too strongly that analysis of motivation is
appropriate only to claims of improper discrimination in the
distribution of goods that are constitutionally gratuitous (that
is, benefits to which people are not entitled as a matter of
substantive constitutional right). In such cases, the covert
employment of a principle of selection that could not
constitutionally be employed overtly is equally unconstitutional.
However,
where what is decried is something to which the
complainant has a substantive constitutional right -- either
because it is granted by the terms of the Constitution or because
it is essential to the effective functioning of a democratic
government --
the reasons it was denied are irrelevant. It
may become important in court what justifications counsel for the
state can
articulate in support of its denial or
non-provision, but the reasons that actually inspired the denial
never can: to have a right to something is to have a claim on it
irrespective of why it is denied. It would be a tragedy of the
first order were the Court to expand its burgeoning awareness of
the relevance of motivation into the thoroughly mistaken notion
that a denial of a constitutional right does not count as such
unless it was intentional."
Ely, The Centrality and Limits of Motivation Analysis, 15 San
Diego L.Rev. 1155, 1160-1161 (1978) (emphasis in original)
(footnotes omitted).
[
Footnote 2/24]
In
Washington v. Davis, 426 U.
S. 229, I wrote:
"Frequently the most probative evidence of intent will be
objective evidence of what actually happened, rather than evidence
describing the subjective state of mind of the actor. For normally
the actor is presumed to have intended the natural consequences of
his deeds. This is particularly true in the case of governmental
action, which is frequently the product of compromise, of
collective decisionmaking, and of mixed motivation. It is
unrealistic, on the one hand, to require the victim of alleged
discrimination to uncover the actual subjective intent of the
decisionmaker or, conversely, to invalidate otherwise legitimate
action simply because an improper motive affected the deliberation
of a participant in the decisional process. A law conscripting
clerics should not be invalidated because an atheist voted for
it."
Id. at
426 U. S. 253
(concurring opinion).
[
Footnote 2/25]
See Miller, If "The Devil Himself Knows Not the Mind of
Man," How Possibly Can Judges Know the Motivation of Legislators?,
15 San Diego L.Rev. 1167, 1170 (1978).
[
Footnote 2/26]
The following table shows a breakdown of the population of the
districts in the plan selected by the District Court as to race and
voting age:
Voting Age Black Voting Age White Voting Age
District Population Population (%) Population (%)
1 2,048 1,482 (72.4) 556 (27.6)
2 2,029 1,407 (69.3) 622 (30.7)
3 2,115 978 (46.2) 1,137 (53.8)
4 2,112 947 (44.6) 1,175 (55.4)
5 2,217 803 (36.2) 1,414 (63.8)
See Lodge v. Buxton, 639 F.2d 1358, 1361, n. 4 (CA5
1981).
[
Footnote 2/27]
In
Wright v. Rockefeller, 376 U. S.
52, a group of minority voters in New York City
challenged a districting scheme that placed most minority voters in
one of four districts. They sought "a more even distribution of
minority groups among the four congressional districts."
Id. at
376 U. S. 58.
Congressman Adam Clayton Powell intervened in the lawsuit and
argued strenuously
"that the kind of districts for which appellants contended would
be undesirable and, because based on race or place of origin, would
themselves be unconstitutional."
Ibid.
[
Footnote 2/28]
Professor Karst has strongly criticized motivational analysis on
the ground that it is inadequate to protect black citizens from
unconstitutional conduct:
"[E]ven though the proof will center on the effects of what
officials have done, the ultimate issue will be posed in terms of
the goodness or the evil of the officials' hearts. Courts have long
regarded such inquiries as unseemly, as the legislative
investigation cases of the 1950's attest. The principal concern
here is not that tender judicial sensitivities may be bruised, but
that a judge's reluctance to challenge the purity of other
officials' motives may cause her to fail to recognize valid claims
of racial discrimination even when the motives for governmental
action are highly suspect. Because an individual's behavior results
from the interaction of a multitude of motives, and because racial
attitudes often operate at the margin of consciousness, in any
given case, there almost certainly will be an opportunity for a
governmental official to argue that his action was prompted by
racially neutral considerations. When that argument is made, should
we not expect the judge to give the official the benefit of the
moral doubt? When the governmental action is the product of a group
decision, will not that tendency toward generosity be
heightened?"
Karst, The Costs of Motive-Centered Inquiry, 15 San Diego L.Rev.
1163, 1164-1165 (1978) (footnote omitted).
To reject an examination into subjective intent is not to rule
that the
reasons for legislative action are
irrelevant.
"In my opinion, customary indicia of legislative intent provide
an adequate basis for ascertaining the purpose that a law is
intended to achieve. The formal proceedings of the legislature and
its committees, the effect of the measure as evidenced by its text,
the historical setting in which it was enacted, and the public acts
and deeds of its sponsors and opponents, provide appropriate
evidence of legislative purpose."
Cousins v. City Council of Chicago, 466 F.2d 830, 856
(CA7 1972) (Stevens, J., dissenting),
cert. denied, 409
U.S. 893. If a challenged law disadvantages minority citizens and
its justifications -- as evidenced by customary indicia of
legislative intent -- are insufficient to persuade a neutral
observer that the law was enacted for legitimate, nondiscriminatory
reasons, it is, in my opinion, invalid.
[
Footnote 2/29]
As the Court of Appeals noted:
"The general election laws in many jurisdictions were originally
adopted at a time when Blacks had not receive[d] their franchise.
No one disputes that such laws were not adopted to achieve an end,
the exclusion of Black voting, that was the
status quo.
Other states' election laws, though adopted shortly after the
enactment of the Fifteenth Amendment, are so old that whatever
evidence of discriminatory intent may have existed has long since
disappeared. This case falls within that category. The focus then
becomes the existence of a discriminatory purpose for the
maintenance of such a system."
639 F.2d at 1363, n. 7.
[
Footnote 2/30]
Apart from the lack of "state action," the very purpose of the
secret ballot is to protect the individual's right to cast a vote
without explaining to anyone for whom, or for what reason, the vote
is cast.
[
Footnote 2/31]
A stereotypical reaction to particular characteristics of a
disfavored group cannot justify discriminatory legislation.
See, e.g., Mathews v. Lucas, 427 U.
S. 495,
427 U. S.
520-521 (STEVENS, J., dissenting). It is nevertheless
important to remember that the First Amendment protects an
individual's right to entertain unsound and unpopular beliefs --
including stereotypical beliefs about classes of persons -- and to
expound those beliefs publicly. There is a vast difference between
rejecting an irrational belief as a justification for
discriminatory legislation and concluding that neutral legislation
is invalid because it was motivated by an irrational belief. Fresh
air and open discussion are better cures for vicious prejudice than
are secrecy and dissembling. No matter how firmly I might disagree
with a legislator's motivation in casting a biased vote, I not only
must respect his right to form his own opinions,
cf. Young v.
American Mini Theatres, Inc., 427 U. S.
50,
427 U. S. 63
(opinion of STEVENS, J.), but also would prefer a candid
explanation of those opinions to a litigation-oriented silence.
[
Footnote 2/32]
See United Jewish Organization v. Carey, 430 U.
S. 144.
[
Footnote 2/33]
See Cousins v. City Council of Chicago, 466 F.2d 830
(CA7 1972),
cert. denied, 409 U.S. 893.
[
Footnote 2/34]
See White v. Regester, 412 U.
S. 755.
[
Footnote 2/35]
See Rice,
supra, 458
U.S. 613fn2/19|>n.19, at 78.
[
Footnote 2/36]
The term "gerrymander" arose from an election district -- that
took the shape of a salamander -- formed in Massachusetts by
Governor Elbridge Gerry's Jeffersonian or Democratic-Republican
Party. The phrase was coined by Gerry's opponents, the
Federalists.
[
Footnote 2/37]
See 39 Congressional Quarterly 758 (1981).
[
Footnote 2/38]
See id. at 941.
[
Footnote 2/39]
Since I do not understand the Court's opinion to rely on an
affirmative action rationale, I put that entire subject to one
side. If that were the rationale for the Court's holding, however,
there would be no need to inquire into subjective intent.
[
Footnote 2/40]
The Court does not address the statutory question whether the
at-large system violates § 2 of the Voting Rights Act of 1965.
Neither the District Court nor the Court of Appeals considered this
issue. Since appellees have been granted full relief by the Court,
I express no opinion on their statutory claims.