Prior to 1973, appellant Texas city was a "general law" city
governed by a commission consisting of a mayor and two
commissioners, all serving the same 2-year terms. These offices
were filled in even-numbered years through at-large elections using
a "numbered post" system whereby the two commission posts were
designated by number, and each candidate specified the post for
which he or she sought election. In 1973, appellant became a "home
rule" city, and adopted a new charter whereby it would be governed
by a mayor and four councilmen serving staggered 2-year terms, with
the mayor and two councilmen being elected in even-numbered years
through at-large elections using the numbered-post system and the
other two councilmen being similarly elected in odd-numbered years.
Forty-seven percent of appellant's population are Mexican-American,
but, as of 1977, less than 30% of the registered voters were
Mexican-American. A Federal District Court in Texas, in a 1979 suit
by the individual appellee and other Mexican-Americans, enjoined
further elections under the new plan pending preclearance of
electoral changes in the charter under § 5 of the Voting Rights Act
of 1965. The Attorney General precleared the changes except to the
extent that they incorporate at-large elections, the numbered-post
system, and staggered terms for councilmen. Appellant then filed
suit under § 5 in the Federal District Court for the District of
Columbia, seeking a declaratory judgment that the remaining changes
did not have the purpose or effect of denying the voting rights
guaranteed by § 5. The District Court compared the new plan to what
the old practice would have been without numbered posts on the
ground that, under Texas law, appellant as a general-law city was
not entitled to use a numbered-post system. The court held that
numbered posts and staggered terms each have the effect of
discriminating against protected minorities, particularly in view
of the history of racial bloc voting in the city.
Held:
1. Appellant's entire 1973 election plan is subject to
preclearance under § 5. Appellant admits that the addition of two
seats to its governing body and the introduction of staggered terms
are subject to § 5. Appellant also changed the nature of the
"continuing" seats, since council posts one and two are not
identical to the old commission posts one and two. Moreover, the
discriminatory effect of the new seats cannot be determined
Page 460 U. S. 126
in isolation from the "preexisting" elements of the council.
Similarly, the impact of any of the seats cannot be evaluated
without considering the fact that they are all filled in elections
using numbered posts. Pp.
460 U. S.
131-132.
2. The 1973 election plan will not have the effect of denying or
abridging the right to vote on account of race, color, or
membership in a language minority group. Pp.
460 U. S.
132-136.
(a) The proper comparison for purposes of § 5 is between the new
system and the system actually in effect under the old practice,
regardless of what state law might have required. Section 5 was
intended to halt actual retrogression in minority voting strength
without regard for the legality under state law of the practices
already in effect. Pp.
460 U. S.
132-133.
(b) Under the principle that § 5's purpose is to insure that no
changes in voting procedures will be made that would lead to
retrogression in minority voting strength,
Beer v. United
States, 425 U. S. 130, the
new system, when compared to the prior practice, does not have the
effect of denying the right to vote guaranteed by § 5. Here, where
appellant has used numbered posts for many years, effective
single-shot voting would be equally impossible under both the old
and new systems, and individual races could be highlighted under
both systems. Similarly, the introduction of staggered terms has
not reduced the opportunity for single-shot voting or increased the
highlighting of individual races. Although there may have been no
improvement in minorities' voting strength, neither has there been
any retrogression. Pp.
460 U. S.
133-136.
559 F.
Supp. 581, vacated and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined,
and in Parts I and II of which BLACKMUN, J., joined. MARSHALL, J.,
post, p.
460 U. S. 136,
and BLACKMUN, J.,
post, p.
460 U. S. 148,
filed opinions concurring in part and dissenting in part. WHITE,
J., dissented.
Page 460 U. S. 127
JUSTICE POWELL delivered the opinion of the Court.
This case requires us to consider the application of § 5 of the
Voting Rights Act to the election plan adopted by appellant City of
Lockhart in 1973.
I
The City of Lockhart is a community of just under 8,000 people
in Caldwell County, Texas, 30 miles south of Austin. According to
the most recent census figures, almost 47% of the city's population
are Mexican-American. As of 1977, however, fewer than 30% of the
city's registered voters were Mexican-American.
Before 1973, Lockhart was a "general law" city. Under Texas law,
general-law cities have only those powers that the State
specifically permits them to possess. As authorized by state law,
Lockhart was governed by a commission consisting of a mayor and two
commissioners, all serving the same 2-year terms. These offices
were filled in April of even-numbered years through at-large
elections using a "numbered post" system. Under this system, the
two commissioner posts were designated by number, and each
candidate for commissioner specified the post for which he or she
sought election. Thus, each race was effectively a separate
election for a separate office. [
Footnote 1]
In 1973, Lockhart adopted a new charter and became a "home rule"
city. In contrast to a general-law city, a home rule city has
authority to do whatever is not specifically prohibited by the
State. This includes discretion to define the form of city
government and to establish the procedures for city elections. As
part of its new charter, Lockhart chose to be governed by a city
council consisting of a mayor and four
Page 460 U. S. 128
councilmen serving staggered 2-year terms. The mayor and two of
the councilmen are elected in April of even-numbered years through
at-large elections using the numbered-post system. The other two
councilmen are similarly elected in odd-numbered years.
Under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as
amended, 42 U.S.C. § 1973c, [
Footnote 2] covered jurisdictions may enforce changes in
their election laws only after obtaining "preclearance" in one of
two ways: (i) they may obtain a declaratory judgment in the United
States District Court for the District of Columbia that the changes
do not have the purpose and will not have the effect of denying or
abridging the right to vote on account of race, color, or
membership in a
Page 460 U. S. 129
language minority group, or (ii) they may submit the changes to
the Attorney General, who then has 60 days in which to object. The
Act was extended to the State of Texas in 1975, covering changes in
election procedures from those in effect on November 1, 1972.
See 40 Fed.Reg. 43746 (1975).
In 1977, four Mexican-Americans, including appellee Alfred Cano,
challenged the constitutionality of Lockhart's election procedures
under the 1973 charter.
Cano v. Kirksey, No. A-77-CA-133
(WD Tex., dism'd Oct. 8, 1982),
appeal pending sub nom. Cano v.
Chesser, No. 82-1616 (CA5, filed Nov. 8, 1982). In the course
of that suit, the plaintiffs discovered that Lockhart had never
obtained approval under § 5 for the changes instituted in 1973. A
second suit then was brought to enjoin the city from using the new
election procedures pending § 5 preclearance. The United States
District Court for the Western District of Texas granted injunctive
relief. [
Footnote 3]
Cano
v. Chesser, No. A-79-CA-0032 (Mar. 2, 1979) (three-judge
court).
Once future elections were enjoined pending § 5 approval,
Lockhart sought preclearance. The Attorney General, however,
interposed an objection to the election procedures under the 1973
charter to the extent that they incorporate at-large elections, the
numbered-post system, and staggered terms for councilmen. Lockhart
then filed the present suit for a declaratory judgment in the
United States District Court for the District of Columbia. Cano
intervened as a defendant. As required by § 5, a three-judge court
was convened to decide the case.
Page 460 U. S. 130
The District Court, recognizing that the city must prove both
the absence of discriminatory effect and discriminatory purpose,
bifurcated the trial. Addressing only the first issue, it held,
over the dissent of Chief Judge Spottswood Robinson of the United
States Court of Appeals for the District of Columbia Circuit, that
Lockhart's election procedures have the effect of discriminating
against protected minorities. [
Footnote 4] The court first decided that the entire
election plan was subject to § 5's requirements. It then compared
Lockhart's current system to that used before the 1973 charter,
except that the court refused to recognize the city's prior use of
numbered posts. This was justified on the ground that the use of
numbered posts was not explicitly authorized by Texas law, and thus
was illegal for a general-law city. The court concluded that
numbered posts and staggered terms each have a discriminatory
impact, particularly in view of the history of racial bloc voting
in Lockhart.
Chief Judge Robinson, in dissent, agreed with the majority that
Lockhart's city council election procedures were subject to § 5
preclearance, and that the use of numbered posts and staggered
terms tended to curb the ability of minorities to elect minority
candidates. But relying on
Beer v. United States,
425 U. S. 130
(1976), he concluded that there was no retrogression in minority
voting strength.
The city appealed the judgment to this Court, contending that
the District Court misconstrued the scope of § 5, and that, in any
event, there has been no retrogression in minority voting strength.
The United States, which defended the suit below, now agrees with
Lockhart that the changes have no retrogressive effect on the
voting rights of Mexican-Americans. Cano continues to defend the
result below. We noted probable jurisdiction. 455 U.S. 987
(1982).
Page 460 U. S. 131
II
We consider first the scope of § 5's coverage in the
circumstances of this case. Lockhart concedes that § 5 applies to
its electoral changes, and that the addition of two seats to its
governing body and the introduction of staggered terms are covered
changes. It contends, however, that § 5 does not apply to the
"continuation" of the two old seats and the continued use of
numbered posts. We conclude that there has been a change with
respect to all of the council seats and to the use of numbered
places.
In moving from a three-member commission to a five-member
council, Lockhart has changed the nature of the seats at issue.
Council posts one and two are not identical to the old commission
posts one and two. For example, they now constitute only 40% of the
council, rather than 67% of the commission. Moreover, one cannot
view these seats in isolation, for they are an integral part of the
council. The possible discriminatory purpose or effect of the new
seats, admittedly subject to § 5, cannot be determined in isolation
from the "preexisting" elements of the council. Similarly, the
numbered-post system is an integral part of the new election plan.
The impact of any of the seats cannot be evaluated without
considering the fact that they are all filled in elections using
numbered posts. [
Footnote 5] We
therefore hold that the
Page 460 U. S. 132
entire system introduced in the 1973 charter is subject to
preclearance.
III
Having decided that Lockhart's entire 1973 election plan is
subject to § 5, we now determine whether the plan's changes that
have not been precleared by the Attorney General have the effect of
denying or abridging the right to vote on account of race, color,
or membership in a language minority group.
A
The first step is to identify the appropriate comparison. The
District Court compared the new plan to what the old practice would
have been without numbered posts. It justified this comparison on
the ground that a general-law city such as Lockhart was not
entitled under Texas law to use a numbered-post system. The court,
distinguishing
Perkins v. Matthews, 400 U.
S. 379 (1971), reasoned that recognition of the actual
practice, rather than the legal requirement, would reward the city
for its past illegality. It preferred instead to draw its
comparison in a way that would maximize the reach of § 5.
Texas law is not entirely clear on this point, [
Footnote 6] but that is essentially
irrelevant. The proper comparison is between the new system and the
system actually in effect on November 1, 1972, [
Footnote 7] regardless of what state law might
have required. This basis of comparison was established in
Perkins v. Matthews, supra. There a city conducted the
relevant
Page 460 U. S. 133
election for aldermen by wards, despite a state statute
requiring at-large elections. As the Perkins Court explained:
"In our view, § 5's reference to the procedure 'in force or
effect on November 1, 19[72],' must be taken to mean the procedure
that would have been followed if the election had been held on that
date."
400 U.S. at
400 U. S. 394.
This conclusion was based on the plain reading of the section's
language. It is, moreover, in accord with the Act's underlying
policy. Section 5 was intended to halt actual retrogression in
minority voting strength without regard for the legality under
state law of the practices already in effect. [
Footnote 8]
B
We now consider whether the aspects of the new system to which
the Attorney General objected, when compared to the practices in
use in Lockhart prior to the new charter, have the effect of
denying or abridging the right to vote guaranteed by § 5. Our
inquiry is guided by the principles of
Beer v. United
States, 425 U. S. 130
(1976). [
Footnote 9]
Beer involved the reapportionment of the New Orleans
councilmanic districts. Prior to the reapportionment, black
citizens had a clear majority of the population and a bare majority
of the registered voters in one of the five districts. In a second
district, they had just under a majority of the population. Under
the new plan, blacks had slightly larger population
Page 460 U. S. 134
and voter majorities in the first district, and a bare majority
of the population in the second. Although the new plan may have
remained discriminatory, it nevertheless was not a regressive
change. The Court explained that "[t]he language of § 5 clearly
provides that it applies only to proposed changes in voting
procedures."
Id. at
425 U. S.
138.
"[T]he purpose of § 5 has always been to insure that no voting
procedure changes would be made that would lead to a retrogression
in the position of racial minorities with respect to their
effective exercise of the electoral franchise."
Id. at
425 U. S. 141.
[
Footnote 10] Since the new
plan did not increase the degree of discrimination against blacks,
it was entitled to § 5 preclearance.
We apply these principles to the two aspects of the new system
that remain at issue in this case: the numbered-post system and
staggered terms for councilmen [
Footnote 11] It is recognized that a numbered-post
system, in some circumstances, may have the effect of
discriminating against minorities in a
Page 460 U. S. 135
city where racial bloc voting predominates. Use of numbered
posts may frustrate the use of "single-shot voting," a technique
that permits concentrating support behind a single candidate.
Lockhart has used numbered posts, however, consistently since 1917.
Effective single-shot voting may be impossible now, but it was
equally impossible under the old system. The new system may
highlight individual races, but so did the old. As Chief Judge
Robinson concluded, "the voting strength of Lockhart's minorities,
whether or not enhanced, [has not been] diminished one whit."
559 F.
Supp. 581, 595 (1981). The District Court erred in finding that
the continued use of numbered posts has a retrogressive effect on
minority voting strength.
The use of staggered terms also may have a discriminatory effect
under some circumstances, since it, too, might reduce the
opportunity for single-shot voting or tend to highlight individual
races. But the introduction of staggered terms has not diminished
the voting strength of Lockhart's minorities. Under the old system,
the voters faced two at-large elections with numbered posts every
two years. Now they face two at-large elections with numbered posts
every year. The inability to use single-shot voting is identical.
The degree of highlighting of individual races is identical.
Minorities are in the same position every year that they used to be
in every other year. Although there may have been no improvement in
their voting strength, there has been no retrogression, either.
Cano argues that the increased frequency of elections made
necessary by staggered terms has resulted in retrogression. The
more frequent elections are said to reduce voter turnout, and this
has a disproportionate impact on minority voters. In support of
this argument, he cites figures from the April, 1975, election.
That year, when voter turnout was unusually low, only 5.7% of the
voters were Mexican-Americans. In other years since 1973, the
percentage of Mexican-American voters has been three to six times
as great. These
Page 460 U. S. 136
figures, however, are misleading. In the April, 1975, election,
both council candidates were running unopposed, and neither
candidate was Mexican-American. This undoubtedly explains both the
lower overall turnout and the lower turnout among
Mexican-Americans. For other elections since 1973, the overall
turnout and the Mexican-American turnout were consistently higher
than they were before the new charter, despite the fact that the
population increased only slightly. In 1978, a Mexican-American
candidate was elected in Lockhart for the first time in its
history, after five years of annual elections. The record,
therefore, contradicts Cano's argument. The District Court erred in
finding that the introduction of staggered terms has had a
retrogressive effect on minority voting strength.
IV
Applying the standards of
Beer v. United States, we
conclude that the election changes introduced by the 1973 Lockhart
City Charter will not have the effect of denying or abridging the
right to vote on account of race, color, or membership in a
language minority group. The District Court's findings to the
contrary were clearly erroneous. We accordingly vacate the District
Court's judgment and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE WHITE dissents.
[
Footnote 1]
This numbered-post system may be contrasted with a system in
which all of the candidates for the two commissioner posts run in a
single election, and the two receiving the greatest number of votes
are elected.
[
Footnote 2]
Section 5 provides, in relevant part, as follows:
"[W]henever a State or political subdivision [such as Lockhart]
shall enact or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or procedure with
respect to voting different from that in force or effect on
November 1, 1972, such State or subdivision may institute an action
in the United States District Court for the District of Columbia
for a declaratory judgment that such qualification, prerequisite,
standard, practice, or procedure does not have the purpose and will
not have the effect of denying or abridging the right to vote on
account of race or color, or in contravention of the guarantees set
forth in section 4(f)(2) [42 U.S.C. § 1973b(f)(2) (prohibiting
discrimination against members of language minority groups)], and
unless and until the court enters such judgment no person shall be
denied the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such proceeding if
the qualification, prerequisite, standard, practice, or procedure
has been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission. . . . Neither an affirmative indication
by the Attorney General that no objection will be made, nor the
Attorney General's failure to object, nor a declaratory judgment
entered under this section shall bar a subsequent action to enjoin
enforcement of such qualification, prerequisite, standard,
practice, or procedure. . . . Any action under this section shall
be heard and determined by a court of three judges in accordance
with the provisions of [28 U.S.C. § 2284] and any appeal shall lie
to the Supreme Court."
[
Footnote 3]
In granting the injunction, the District Court lacked
jurisdiction to pass on the discriminatory purpose or effect of the
changes. All it could do was determine (i) whether a change was
covered by § 5, (ii) if the change was covered, whether § 5's
approval requirements were satisfied, and (iii) if the requirements
were not satisfied, what remedy was appropriate.
See, e.g.,
United States v. Board of Supervisors of Warren County,
429 U. S. 642,
429 U. S.
645-647 (1977) (per curiam). Lockhart did not appeal the
District Court's finding that the 1973 charter included changes
that are covered by § 5.
[
Footnote 4]
In view of its decision on discriminatory effect, it was
unnecessary for the District Court to reach the issue of
discriminatory purpose.
[
Footnote 5]
Lockhart seeks to rely on
Beer v. United States,
425 U. S. 130
(1976), but that decision is readily distinguishable on this point.
In
Beer, we considered the reapportionment of the New
Orleans councilmanic districts. The New Orleans City Council was
composed of seven members, two elected at large and five elected
from districts. New Orleans had reapportioned these districts
through a city ordinance.
"The ordinance . . . made no reference to the at-large
councilmanic seats. Indeed, since those seats had been established
. . . by the city charter, an ordinance could not have altered
them; any change in the charter would have required approval by the
city's voters."
Id. at
425 U. S.
138-139. Furthermore, the ordinance did not affect the
at-large councilmen in any other way. It did not change their
titles. It did not increase or decrease the size of the city
council. In short, the ordinance affected only the district
councilmen. It was only in these circumstances that "[t]he at-large
seats . . . were not subject to review . . . under § 5."
Id. at
425 U. S.
139.
[
Footnote 6]
There does not appear to be any Texas case law on the subject.
Lockhart had used its numbered-post system for over 50 years
without challenge, suggesting a presumption of legality under state
law.
[
Footnote 7]
Since no election was held on November 1, 1972, we consider the
system that would have been in effect if there had been an election
then. That, presumably, is the system that was used without
exception between 1917 and 1973.
See Perkins v. Matthews,
400 U.S. at
400 U. S.
394-395.
[
Footnote 8]
We also believe that the Attorney General and the District Court
for the District of Columbia should be free to decide preclearance
questions on the essentially factual issues of discriminatory
purpose and effect. We doubt that Congress intended to force either
into speculation as to state law.
[
Footnote 9]
Cano argues on appeal that Congress altered the
Beer
standard with the recent amendment to § 2 of the Voting Rights Act,
79 Stat. 437, as amended, 42 U.S.C. § 1973,
see Voting
Rights Act Amendments of 1982, Pub.L. 97-205, 96 Stat. 131. The
District Court did not pass on this argument, and we decline to
review it in the first instance. The issue remains open on
remand.
[
Footnote 10]
Contrary to the suggestion in JUSTICE MARSHALL's dissent,
post at
460 U. S.
142-143, the
Beer Court did not distinguish
between ameliorative changes and changes that simply preserved
current minority voting strength. The Court explained that the
purpose of § 5 was to prohibit only retrogressive changes. 425 U.S.
at
425 U. S. 141.
It then applied this standard to the New Orleans reapportionment,
agreeing that an ameliorative change was
a fortiori
permissible.
Ibid. The only suggestion in the several
Beer opinions that there might be a distinction between
ameliorative and nonameliorative changes was not in the Court's
opinion; rather it was in JUSTICE MARSHALL's dissent,
id.
at
425 U. S. 150,
n. 6, and he explained why the distinction is "unrealistic,"
ibid. Cf. id. at
425 U. S. 143
(WHITE, J., dissenting) ("I cannot agree [with the Court] that § 5
. . . reaches only those changes in election procedures that are
more burdensome to the complaining minority than preexisting
procedures");
see also City of Richmond v. United States,
422 U. S. 358,
422 U. S. 388
(1975) (BRENNAN, J., dissenting) ("[T]he fundamental objective of §
5 [is] the protection of
present levels of voting
effectiveness for the black population") (emphasis in original).
JUSTICE MARSHALL's current dissenting opinion essentially
reiterates the position stated forcefully in his
Beer
dissent -- a position rejected by a majority of the Court at that
time.
[
Footnote 11]
The Attorney General also objected to the use of at-large
elections, but the District Court did not hold, and the parties
before us do not argue, that the continued existence of at-large
elections has a retrogressive effect.
JUSTICE MARSHALL, concurring in part and dissenting in part.
I disagree fundamentally with the Court's view that § 5 of the
Voting Rights Act permits jurisdictions with a history of voting
discrimination to adopt new voting schemes which perpetuate that
discrimination. Congress intended the preclearance requirement to
be a powerful measure for advancing the goals of the Fifteenth
Amendment, and specifically reaffirmed that intention when it
reenacted the Voting
Page 460 U. S. 137
Rights Act in 1982. By holding that § 5 forbids only electoral
changes that increase discrimination, the Court reduces § 5 to a
means of maintaining the
status quo. Because the Court's
interpretation of § 5 is flatly inconsistent with both the language
and the purpose of that provision, and is not supported by the
decision in
Beer v. United States, 425 U.
S. 130 (1976), I dissent from Parts
460 U.
S. S. 136|>IV of the Court's opinion.
I would affirm the judgment below on the basis of the District
Court's conclusion, which this Court in no way questions, that the
city of Lockhart's "imposition of the numbered-post and
staggered-term provisions has clearly had and
will continue to
have" a discriminatory effect on Mexican-American voters.
559 F.
Supp. 581, 588 (1981) (emphasis added). [
Footnote 2/1]
Indeed, it bears repeating and should be reemphasized that the
Fifteenth Amendment "nullifies sophisticated as well as
simple-minded modes of discrimination."
Lane v. Wilson,
307 U. S. 268,
307 U. S. 275
(1939).
I
The Court's view that § 5 of the Voting Rights Act permits the
adoption of a discriminatory election scheme, so long as the scheme
is not more discriminatory than its predecessor, is inconsistent
with both the language and the purpose of that provision. In
focusing exclusively on whether Lockhart's new election scheme
worsens the position of minority voters, and ignoring whether the
new scheme itself has a discriminatory effect,
see ante at
460 U. S.
133-136, the Court substitutes an inquiry of its own
invention for the inquiry mandated by § 5. For the reasons
elaborated below, I believe that § 5 forbids preclearance of a
proposed election procedure that perpetuates existing
discrimination.
Page 460 U. S. 138
A
The Court's interpretation of § 5 is inconsistent with the
language of that provision. Section 5 provides that a covered
jurisdiction must obtain preclearance of any new "voting
qualification, or prerequisite to voting, or standard, practice, or
procedure with respect to voting." 79 Stat. 439, as amended, 42
U.S.C. § 1973c. The jurisdiction bears the burden of proving that
the proposed
"voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting . . . will not have
the effect of denying or abridging the right to vote on account of
race or color, or [membership in a language minority group]. . .
."
Ibid. By its terms, § 5 focuses on the effect of the
new voting procedure itself, not on the difference between the new
procedure and its predecessor. The statute specifically requires
that the new procedure not have the effect of denying or abridging
the right to vote on a discriminatory basis. Although it is
relevant for purposes of § 5 whether the change to the new practice
diminishes minority voting strength, to say that the effect of the
change is part of the § 5 inquiry is far different from holding, as
the Court does, that this is the
sole inquiry in
determining whether a new procedure has a discriminatory effect.
Nothing in the language of § 5 in any way suggests that a
discriminatory election procedure satisfies § 5 as long as the
procedure does not increase the degree of discrimination.
B
The Court's view is also wholly inconsistent with the purpose of
§ 5. The legislative history of the Voting Rights Act leaves no
doubt that Congress intended § 5 to prohibit the covered
jurisdictions from adopting voting procedures which perpetuate past
discrimination, which is precisely what the procedures proposed by
Lockhart would do. Moreover, Congress reaffirmed this intent when
it reenacted the Voting Rights Act in 1982.
Page 460 U. S. 139
The Voting Rights Act of 1965 was enacted as a direct response
to the failure of prior efforts to implement the guarantees of the
Fifteenth Amendment. Congress recognized that voting discrimination
was a nationwide problem, and it therefore enacted a general
prohibition of discriminatory practices.
See, e.g., §§ 2,
3, 79 Stat. 437, as amended, 42 U.S.C. §§ 1973, 1973a. Congress was
particularly concerned, however, with the "systematic exclusion of
Negroes from the polls that characterizes certain regions of this
Nation." H.R.Rep. No. 439, 89th Cong., 1st Sess., 8 (1965). It
identified a number of jurisdictions that had "engaged in
widespread violations of the 15th amendment over a period of time,"
id. at 14, [
Footnote 2/2]
and provided that these jurisdictions would be subject to certain
stringent remedial measures that were not made applicable
nationwide. The most important of these remedial measures was the
preclearance requirement of § 5.
The specific purpose of § 5 was to prevent these jurisdictions
from continuing the pervasive practice of adopting new voting
procedures which perpetuated existing discrimination. Congress was
alarmed at the success with which certain States had evaded the
strictures of earlier voting laws by resorting to
"the extraordinary stratagem of contriving new rules . . . for
the sole purpose of
perpetuating voting discrimination in
the face of adverse federal court decrees."
South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 335
(1966) (footnote omitted) (emphasis added). The historical
experience of attempts to enforce voting laws in those States
revealed that "[b]arring one contrivance too often has caused no
change in result, only in methods." H.R.Rep. No. 439,
supra, at 10.
See also S.Rep. No. 162, 89th
Cong., 1st
Page 460 U. S. 140
Sess., pt. 3, P. 5 (1965). [
Footnote
2/3] Congress concluded that enforcement of the Fifteenth
Amendment and the specific prohibitions of the Voting Rights Act of
1965 would not be effective if these States remained free to adopt
new electoral procedures that continued to discriminate against
minority voters.
See South Carolina v. Katzenbach, supra,
at
383 U. S.
335.
In order to prevent such evasive maneuvers, Congress required
jurisdictions with a pervasive history of voting discrimination to
obtain preclearance of any new voting plan. As this Court has
recognized, § 5 was designed to suspend "all new voting regulations
pending review by federal authorities to determine whether their
use would
perpetuate voting discrimination." 383 U.S. at
383 U. S. 316
(emphasis added).
"After enduring nearly a century of systematic resistance to the
Fifteenth Amendment, Congress . . . shift[ed] the advantage of time
and inertia from the perpetrators of the evil to its victims."
Id. at
383 U. S.
328.
When Congress reenacted the Act in 1970, 1975, and 1982, it
consistently reaffirmed the central purpose of § 5: to promote the
attainment of voting equality by preventing the adoption of new
voting procedures which perpetuate past discrimination. The House
Report accompanying the 1970 extension of the Act viewed § 5 as a
means of "preclud[ing]" the covered States from resorting to "new
voting rules . . . in order to
perpetuate discrimination."
H.R.Rep. No. 91-397, pp. 6-7 (1969) (emphasis added). [
Footnote 2/4] Similarly, when
Page 460 U. S. 141
Congress extended and amended the Act in 1975, it stated
unequivocally that § 5 was adopted "[i]n order to insure that any
future practices of these jurisdictions be free of both
discriminatory purpose and effect." H.R.Rep. No. 94-196, p. 8
(1975); S.Rep. No. 94-295, p. 15 (1975).
See also H.R.Rep.
No. 94-196,
supra, at 8, 57; S.Rep. No. 94-295,
supra, at 15-18. When Congress reenacted the Voting Rights
Act in 1982, it stressed that § 5 is "designed to insure that old
devices for disenfranchisement would not simply be replaced by new
ones," to prohibit new "complex and subtle . . . schemes [that]
perpetuate the results of past voting discrimination," and to
"eradicat[e] the continuing effects of past discrimination." S.Rep.
No. 94-417, pp. 6, 12, 44 (1982). [
Footnote 2/5]
The Court's interpretation of § 5 disregards the central purpose
of that provision. The Court holds that § 5 is satisfied as long as
a change in electoral procedure does not increase the level of
discrimination, even if the new procedure perpetuates past
discrimination. In holding that § 5 prevents only the adoption of
procedures that worsen the position of minority voters, the Court
completely ignores the very reason why Congress imposed the
preclearance requirement on jurisdictions with a pervasive history
of voting discrimination:
Page 460 U. S. 142
to prevent the
perpetuation of past discrimination
through the adoption of new discriminatory procedures. The Court's
interpretation of § 5 permits a covered jurisdiction to circumvent
the Fifteenth Amendment and the general prohibitions of the Voting
Rights Act in precisely the way that Congress sought to
foreclose.
II
The Court's interpretation of § 5 is not supported by the
decision in
Beer v. United States, 425 U.
S. 130 (1976).
Beer did not hold that a
nonameliorative change in electoral procedure should be precleared
even if the new procedure perpetuates past discrimination. Today's
decision represents an extension of
Beer which is
unsupported by any of the purposes of the Voting Rights Act and is
inconsistent with Congress' understanding of § 5 when it reenacted
the Voting Rights Act in 1982.
A
The Court's decision in
Beer concerned an electoral
change that improved the voting strength of minorities. In
Beer, the Court found that the reapportionment plan at
issue
enhanced the position of Negro voters, since it
increased the number of districts in which they constituted a
majority. 425 U.S. at
425 U. S.
141-142. The Court stated its holding as follows:
"We conclude . . . that such an
ameliorative new
legislative apportionment cannot violate § 5 unless the new
apportionment itself so discriminates on the basis of race or color
as to violate the Constitution."
Id. at
425 U. S. 141
(emphasis added). That the Court viewed the ameliorative nature of
the reapportionment as central to its holding is confirmed by
footnote 14 of the opinion, which states:
"It is possible that a legislative reapportionment could be a
substantial improvement over its predecessor in terms of lessening
racial discrimination, and yet nonetheless continue so to
discriminate on the basis of race or color as to be
unconstitutional."
Id. at
425 U. S. 142,
n. 14. [
Footnote 2/6]
Page 460 U. S. 143
Beer did not involve a change in electoral procedure
which, like the one before us, preserves the existing level of
discrimination against minority voters. A new electoral scheme
which does nothing more than perpetuate past discrimination differs
in a critical way from a voting scheme which enhances minority
voting strength. By improving the position of minority voters, an
ameliorative change represents some progress in attaining voting
equality, the fundamental goal of the Voting Rights Act. In
contrast, an electoral scheme that does not enhance minority voting
strength but merely maintains existing discrimination does not
further any conceivable purpose of the Act. Although the
reapportionment in
Beer may not have eliminated past
discrimination, at least it enhanced the political position of
minority voters. This cannot be said of Lockhart's 1973 charter,
which merely continues the pattern of voting discrimination that
has prevailed in that city.
While I dissented in
Beer on the ground that
preclearance of any electoral plan which has a discriminatory
effect is inconsistent with the mandate of § 5, the departure in
Beer from the plain language of § 5 was at least
reconcilable with the broad purposes of the Voting Rights Act.
There is no similar justification for today's decision. In light of
the language and purpose of § 5 and the overall purposes of the
Act, it is perverse to interpret § 5 to authorize preclearance
of
Page 460 U. S. 144
electoral changes that maintain a discriminatory
status
quo. The Court's interpretation of § 5 robs it of its basic
function of preventing the perpetuation of past discrimination,
without in any way advancing a single purpose of the Voting Rights
Act.
B
To support its interpretation of § 5, the Court relies solely on
a statement in
Beer to the effect that § 5 is designed to
prevent retrogression in the position of minority voters.
Ante at
460 U. S. 134,
citing 425 U.S. at
425 U. S. 141.
That statement, which was made in an opinion addressing an
electoral change that
reduced discrimination, rested on an
isolated passage in the legislative history of the 1975 reenactment
of the Voting Rights Act. That passage does not support today's
decision. The passage appears in a section of a House Judiciary
Committee Report which criticized the narrow view of § 5 that had
prevailed within the Department of Justice. The Committee noted
that the Department of Justice had chosen to focus exclusively on
"whether the administration of [an electoral] change has been, is,
or will be without bias." H.R.Rep. No. 94-196, p. 60 (1975). The
Committee criticized this view of § 5 as unduly narrow:
"We recommend that the Department of Justice, in determining
whether a change affecting voting will have the effect of
discriminating on the basis of race or color, apply the standard as
Congress intended it and as the Supreme Court of the United States
has interpreted it. That standard is not fully satisfied by an
indication that the administration of the change affecting voting
will be impartial or neutral. Rather, that standard can only be
fully satisfied by determining . . . whether the ability of
minority groups to participate in the political process and to
elect their choices to office is augmented, diminished, or not
affected by the change affecting voting in
Page 460 U. S. 145
view of the political, sociological, economic, and psychological
circumstances within the community proposing the change."
Ibid. It may be inferred from this passage that the
Committee intended § 5 to prohibit changes that would diminish the
voting strength of minorities. There is no indication, however,
that, in criticizing the Department of Justice for ignoring the
effect of the change as part of the "broader inquiry" into
discriminatory effect under § 5,
ibid., the Committee
meant to suggest that a discriminatory scheme should be precleared
as long as it does not increase the existing level of
discrimination. The Report simply does not address the proper
treatment of such a scheme.
C
When Congress reenacted § 5 in 1982, it did so on the
understanding that § 5 does not allow covered jurisdictions to
adopt voting procedures which maintain existing discrimination.
Congress reenacted § 5 on the assumption that the rule laid down in
Beer governed
ameliorative changes. In a section
of its Report specifically addressing the reenactment of § 5, the
Senate Judiciary Committee stated:
"Under the rule in
Beer v. United States, 425 U. S.
130 (1976), a voting change which is ameliorative is not
objectionable unless the change 'itself so discriminates on the
basis of race or color as to violate the Constitution.' 425 U.S. at
425 U. S. 141;
see
also 425 U. S. 142, n. 14 (citing
to the dilution cases from
Forston v. Dorsey[,
379 U. S.
433 (1965),]) through
White v. Regester[,
412 U. S.
755 (1973]). In light of the amendment to section 2, it
is intended that a section 5 objection also follow if a new voting
procedure itself so discriminates as to violate section 2."
S.Rep. No. 97-417, p. 12, n. 31 (1982). In stating the "rule in
Beer" in terms of the holding of that decision, the
Committee clearly indicated its understanding that that rule
applies to
ameliorative changes. There is no
Page 460 U. S. 146
indication that the Committee understood
Beer also to
apply to nonameliorative changes. Indeed, the implication is to the
contrary, and the legislative history of the 1982 Amendments,
including the same Report from which this passage is taken, shows
that Congress repeatedly stressed that § 5 is intended to prevent
covered jurisdictions from adopting voting schemes that perpetuate
existing discrimination.
See supra at
460 U. S.
141.
In addition, the second sentence of the passage quoted above
confirms that Congress did not intend to limit the focus of § 5 to
whether an electoral change worsens the position of minority
voters. The Committee indicated that a new procedure would be
denied preclearance under 5 if it violated the standards governing
the amended § 2. A voting procedure violates § 2 if it "results in
a denial or abridgement" of the right to vote on a discriminatory
basis, whether or not the procedure worsens the position of
minority voters. Pub.L. 97-205, § 3, 96 Stat. 134, 42 U.S.C. § 1973
(1982 ed.). [
Footnote 2/7] In
reenacting § 5 with the intent that a voting procedure
Page 460 U. S. 147
violating § 2 should be denied preclearance under § 5, Congress
surely made clear its understanding that § 5 forbids the adoption
of a voting procedure that maintains existing discrimination
whether or not the change is retrogressive.
There is no justification for the Court's refusal to consider
the 1982 reenactment of § 5 and amendment of § 2.
Ante at
460 U. S. 133,
n. 9. Both went into effect immediately, and are applicable to this
case. Pub.L. 97-205, § 6, 96 Stat. 135. In deciding that Lockhart's
1973 charter does not have the "effect of abridging or denying the
right to vote" within the meaning of § 5, the Court is bound to
apply the law as it now stands. Although Congress reenacted § 5
without change, its understanding of the scope of that provision is
plainly relevant to the issue before us.
Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Curran, 456 U.
S. 353,
456 U. S.
384-388 (1982). By extending
Beer and holding
that discriminatory electoral schemes may be precleared as long as
they do not increase the level of discrimination, the Court has
interpreted § 5 in a manner squarely inconsistent with Congress'
intent in reenacting that provision.
III
In my view, § 5 does not authorize the preclearance of any
electoral scheme that is discriminatory in effect and that does not
reduce past discrimination. The very purpose of § 5 is to prevent
covered jurisdictions from circumventing the protections of the
Voting Rights Act and the Constitution by the adoption of electoral
schemes which perpetuate past discrimination. The considerations
that may support the preclearance of ameliorative schemes have no
application to electoral changes which perpetuate past
discrimination or which actually increase the level of
discrimination.
An electoral change which preserves the
status quo
should be denied preclearance if the new procedure continues to
deny minority voters an equal chance to participate in the
Page 460 U. S. 148
electoral process and elect candidates of their choice.
[
Footnote 2/8] The District Court
noted that, although Mexican-Americans constitute over 40% of the
population of Lockhart, only one Mexican-American has ever served
on the governing body. Because of the established pattern of racial
bloc voting in Lockhart, Mexican-American voters can elect
candidates of their choice only by leveraging their vote through
single-shot voting. As the District Court recognized, the
imposition of numbered posts and staggered elections, both features
of the 1973 charter, diminishes this leverage to the detriment of
minority-supported candidates. [
Footnote 2/9] The District Court concluded that the use
of staggered terms and numbered seats in Lockhart has had and will
continue to have a "discriminatory effect on Mexican-American
voters' ability to elect candidates of their choice." Since this
conclusion is undisturbed by the Court, § 5 preclearance should be
denied for the simple reason that preclearance of a voting scheme
that will perpetuate a history of voting discrimination is flatly
inconsistent with the very purpose of § 5.
[
Footnote 2/1]
I also agree with JUSTICE BLACKMUN that the decision below
should be affirmed on the separate ground that the District Court's
factual finding that the electoral changes had a retrogressive
effect is not clearly erroneous.
[
Footnote 2/2]
See also H.R.Rep. No. 94-196, p. 16 (1975) (explaining
expansion of list of covered jurisdictions to include those with a
"systematic pattern of voting discrimination and exclusion against
minority group citizens" who are from environments in which the
dominant language is other than English).
[
Footnote 2/3]
The House Report accompanying the 1965 Act described at great
length the "ingenuity and dedication of those determined to
circumvent the guarantees of the 15th amendment." H.R.Rep. No. 439,
89th Cong., 1st Sess., 10 (1965). Certain jurisdictions would adopt
facially neutral changes in voting requirements which ensured that
"white political supremacy was unlawfully
maintained."
S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, p. 8 (1965) (emphasis
added).
[
Footnote 2/4]
The Senate Judiciary Committee stated:
"If it had not been for Section 5 of the present Act, there is
no telling to what extent the states and communities covered might
have legislated and manipulated
to continue their historical
practice of excluding Negroes from the Southern political
process."
Joint Views of Ten Members of the (Senate) Judiciary Committee
Relating to Extension of the Voting Rights Act of 1965, 91st Cong.,
2d Sess., printed at 116 Cong.Rec. 5521 (1970) (emphasis added),
cited in S.Rep. No. 97-417, p. 7 (1982).
[
Footnote 2/5]
This Court's decisions have consistently recognized that § 5 was
designed to prevent the adoption of new electoral procedures that
would maintain preexisting voting discrimination. In
Allen v.
State Board of Elections, 393 U. S. 544,
393 U. S. 548
(1969), the Court stated that Congress enacted § 5 to counter the
historical practice of some States "of simply enacting new and
slightly different requirements with
the same discriminatory
effect" (emphasis added) (footnote omitted). Most recently, in
City of Rome v. United States, 446 U.
S. 156,
446 U. S. 182
(1980), the Court observed that Congress readopted the § 5
preclearance requirement in 1975 in order "to
promote further
amelioration of voting discrimination" and "to
counter the
perpetuation of 95 years of pervasive voting discrimination"
(emphasis added) (quoted in S.Rep. No. 97-417,
supra, at
10, n.19, 53.)
[
Footnote 2/6]
It is hardly an answer to say, as the Court does,
ante
at
460 U. S. 134,
n. 10, that
Beer did not "distinguish between"
ameliorative changes and changes that do not enhance minority
voting strength. The decision in
Beer, as Congress
recognized when it reenacted § 5 in 1982,
see infra at
460 U. S.
145-146, concerned only an ameliorative reapportionment,
and the Court specifically stated its holding in terms of a change
in electoral procedure that is ameliorative. It simply had no
occasion to consider the proper treatment under § 5 of
discriminatory electoral procedures that do not lessen past
discrimination. Today's decision extends
Beer to cover
electoral schemes that are not ameliorative. The Court does not
even attempt to demonstrate that this extension can be squared with
the language, purpose, and legislative history of § 5, or that it
serves any purpose of the Voting Rights Act. The reason for the
Court's silence is obvious: Congress clearly intended § 5 to
prohibit the adoption of electoral procedures that perpetuate past
discrimination.
[
Footnote 2/7]
Section 2 provides:
"(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United
States to vote on account of race or color, or in contravention of
the guarantees set forth in section 4(f)(2), as provided in
subsection (b)."
"(b) A violation of subsection (a) is established if, based on
the totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) in that
its members have less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice. The extent to which members of a
protected class have been elected to office in the State or
political subdivision is one circumstance which may be considered:
Provided, That nothing in this section establishes a right
to have members of a protected class elected in numbers equal to
their proportion in the population."
[
Footnote 2/8]
This is the test that governs the determination of whether a
voting procedure "results in a denial or abridgement" of the right
to vote in violation of § 2 as recently amended.
See
460
U.S. 125fn2/7|>n. 7,
supra. See also
S.Rep. No. 97-417, p. 28 (1982);
see generally id. at
15-43.
[
Footnote 2/9]
Congress specifically identified numbered posts and staggered
terms as "discriminatory elements of the elections process" which
"often dilute emerging minority political strength" "in the covered
jurisdictions, where there is severe racially polarized voting."
H.R.Rep. No. 97-227. p. 18 (1981).
See also S.Rep. No.
97-417,
supra, at 10 (identifying numbered posts as one of
the "impediments that still face minority voters").
JUSTICE BLACKMUN, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion, but I dissent from
Parts
460 U. S. S.
136|>IV. My review of the record convince me that the
three-judge District Court's factual finding that the electoral
changes introduced in 1973 had a retrogressive
Page 460 U. S. 149
effect on the voting rights of Mexican-Americans in the city of
Lockhart is not clearly erroneous. I therefore would affirm the
judgment of the District Court. At the very least, I would remand
the case to that court for it to determine whether the Voting
Rights Act Amendments of 1982, Pub.L. 97-205, 96 Stat. 131, have
altered the applicable standard under § 5.