Appellant, an Alabama city that has a long history of racial
discrimination and that until recently had an all-white population,
is covered by § 6 of the Voting Rights Act of 1966 (Act), and
accordingly must seek preclearance before instituting any change in
a standard, practice, or procedure affecting voting. Appellant
sought approval by the Attorney General for the annexation of two
parcels of land, one vacant (hereinafter called the Western
Addition) and the other (Glasgow Addition) added at the request of
its inhabitants, an extended white family who wished their children
to attend appellant's then all-white school system. The Attorney
General objected to the annexations, finding with respect to the
Western Addition that appellant's refusal to annex an adjacent
black neighborhood (Highlands) was indicative of an intent to annex
only white areas. Pursuant to § 5 of the Act, appellant then filed
this declaratory action in the United States District Court for the
District of Columbia, which denied relief, finding that the Western
Addition's location and appellant's plans for relatively expensive
housing there indicated that it was likely to be developed for use
by white persons only. The court further found that appellant
failed to carry its burden of proving that the annexations at issue
did not have the purpose of abridging or denying the right to vote
on account of race.
Held:
1. Fundamental principles of the Act, governing this case, are
that an annexation of inhabited land constitutes a change in voting
practice or procedure subject to preclearance under § 5, and even
the annexation of vacant land on which residential development is
anticipated must be precleared before those moving into the area
may vote in the annexing jurisdiction. Moreover, Congress intended
that a voting practice not be precleared unless both discriminatory
purpose and effect are absent, and the burden of proving absence of
discriminatory purpose and effect is on the covered jurisdiction.
Pp.
479 U. S.
467-469.
2. There is no merit to appellant's contention that the District
Court erred in concluding that appellant had not carried its burden
of showing that the annexations were untainted by a racially
discriminatory purpose. In arriving at its decision, the District
Court relied on a variety of evidence, principally its finding that
the refusal to annex the Highlands
Page 479 U. S. 463
while annexing other areas was racially motivated, rather than,
as appellant asserted, based upon economic considerations. The
court's findings, both as to the purpose of not annexing the
Highlands and with respect to the weight of the evidence regarding
the purpose of the two annexations at issue, are findings of fact
that must be accepted unless clearly erroneous, and appellant has
not established that they are clearly erroneous. Appellant's
argument that, even if its decision not to annex the Highlands was
racially motivated, such decision was not a change respecting
voting, and hence was not subject to § 5, is correct, but not
dispositive. The failure to annex black areas while simultaneously
annexing nonblack areas is highly significant in demonstrating that
appellant's annexations were purposefully designed to perpetuate it
as an enlarged enclave of white voters. Moreover, the contention
that, since appellant had no black voters at the time of the
annexations, they could not have caused an impermissible effect on
black voting, and thus it cannot be concluded that appellant had a
discriminatory purpose, is based on the incorrect assumption that
an impermissible purpose under § 5 can relate only to present
circumstances. Section 5 looks not only to the present effects of
changes, but to their future effects as well, and, likewise, an
impermissible purpose under § 5 may relate to anticipated as well
as present circumstances. Pp.
479 U. S.
469-472.
623 F.
Supp. 782, affirmed.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. POWELL, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR,
J., joined,
post,
479 U. S. 472.
Page 479 U. S. 464
JUSTICE WHITE delivered the opinion of the Court.
Appellant, Pleasant Grove, a city in Alabama that until recently
had an all-white population, is covered by § 5 of the Voting Rights
Act of 1965, 79 Stat. 439,
as amended, 42 U.S.C. § 1973c,
and accordingly must seek preclearance before instituting any
change in a standard, practice, or procedure affecting voting.
[
Footnote 1] Appellant
unsuccessfully sought preclearance by the Attorney General for the
annexation of two parcels of land, one vacant and the other
inhabited by a few whites. Appellant also failed to convince a
three-judge District Court that the annexations did not have the
purpose of abridging or denying the right to vote on account of
race. We noted probable jurisdiction, 476 U.S. 1113 (1986), and now
affirm.
Page 479 U. S. 465
I
Appellant, whose population numbers approximately 7,000, was
described by the District Court as "an all-white enclave in an
otherwise racially mixed area of Alabama." [
Footnote 2]
568 F.
Supp. 1455, 1456 (DC 1983). The city has a long history of
racial discrimination. The District Court's opinions chronicle the
city's past discriminatory practices in some detail, and we will
not repeat that history fully here.
See 623 F.
Supp. 782, 787-788 (DC 1985); 568 F. Supp. at 1456-1457.
Suffice it to say that, in housing, zoning, hiring, and school
policies, appellant's officials have shown unambiguous opposition
to racial integration, both before and after the passage of the
federal civil rights laws.
The two annexations at issue in this case are the Glasgow
Addition, a 40-acre parcel added in 1969, App. 7, and the Western
Addition, a 450-acre area added in 1979. The Glasgow Addition was
added at the request of its inhabitants, an extended white family
who wished their children to attend appellant's newly formed,
all-white school district, rather than the recently desegregated
Jefferson County system. [
Footnote
3]
Page 479 U. S. 466
The Western Addition is uninhabited, but the District Court
found that "its location and the City's plans [for relatively
expensive housing] indicate that it is likely to be developed for
use by white persons only." 623 F. Supp. at 784, n. 5.
While approval of the Western Annexation was pending before the
Alabama Legislature, appellant's City Council voted to withdraw
fire and paramedic services that appellant was providing without
charge to an adjacent black neighborhood known as Pleasant Grove
Highlands (Highlands). In response, inhabitants of the Highlands,
which has housing comparable to that in Pleasant Grove, petitioned
for annexation to the city. The City Council restored free fire
protection, but did not otherwise act on the petition. [
Footnote 4] App. 18-19.
Appellant sought preclearance for the annexation of the Western
Addition, but the Attorney General objected because he found the
refusal to annex the Highlands indicative of an intent to annex
only white areas. [
Footnote 5]
The city then filed this declaratory action in the District Court
for the District
Page 479 U. S. 467
of Columbia. [
Footnote 6] In
denying appellant's motion for summary judgment, the court held,
over one judge's dissent, that
"a community may not annex adjacent white areas while applying a
wholly different standard to black areas and failing to annex them
based on that discriminatory standard."
568 F. Supp. at 1460. In its subsequent decision on the merits,
the court, with one judge dissenting, denied declaratory relief,
holding that the city had failed to carry its burden of proving
that the two annexations at issue did not have the purpose of
abridging or denying the right to vote on account of race.
[
Footnote 7] This appeal
followed.
II
Before addressing appellant's arguments, we find it useful to
review two fundamental principles of the Voting Rights Act.
First. An annexation of inhabited land constitutes a
change in voting practice or procedure subject to preclearance
under § 5.
City of Richmond v. United States, 422 U.
S. 358,
422 U. S. 368
(1975);
Perkins v. Matthews, 400 U.
S. 379,
400 U. S. 388
(1971). Even the annexation of vacant land on which residential
development is anticipated must be precleared before those moving
into the area may vote in the annexing jurisdiction. In
City of
Rome v. United States, 446 U. S. 156
(1980), this Court affirmed the denial of preclearance to 13
annexations, 9 of which were vacant land.
See id. at
446 U. S. 194,
446 U. S. 196
(POWELL, J., dissenting);
City of Rome, Ga. v. United
States, 472 F.
Supp. 221, 246 (DC 1979). This holding is consistent with the
well established teaching of
Allen v. State Board of
Elections, 393
Page 479 U. S. 468
U.S. 544 (1969), that Congress intended the preclearance
provisions of the Voting Rights Act to be given "the broadest
possible scope,"
id. at
393 U. S. 567,
and to reach "any state enactment which alter[s] the election law
of a covered State in even a minor way,"
id. at
393 U. S. 566.
Allowing a State to circumvent the preclearance requirement for
annexations by annexing vacant land intended for white developments
would disserve Congress' intent to reach "the subtle, as well as
the obvious, state regulations which have the effect of denying
citizens their right to vote because of their race."
Id.
at
393 U. S. 565.
Moreover, the Attorney General, whose interpretation of the Voting
Rights Act is entitled to considerable deference,
see, e.g.,
United States v. Sheffield Board of Comm'rs, 435 U.
S. 110,
435 U. S. 131
(1978), has consistently interpreted § 5 to reach the annexation of
vacant land intended for residential development. [
Footnote 8] Finally, Congress was aware of
the Attorney General's view in this regard, and implicitly approved
it when it reenacted the Voting Rights Act in 1982. [
Footnote 9]
Cf. id. at
435 U. S.
131-135.
Page 479 U. S. 469
Second. "Congress plainly intended that a voting
practice not be precleared unless
both discriminatory
purpose and effect are absent."
City of Rome, supra, at
446 U. S. 172
(emphasis in original).
See also e.g., City of Richmond,
supra, at
422 U. S. 378.
The burden of proving absence of discriminatory purpose and effect
is on appellant.
See, e.g., City of Rome, supra, at
446 U. S. 183,
n. 18.
III
The city does not claim that either of the two annexations was
not a change in voting practices subject to preclearance under § 5,
even though the Western Addition was at the time uninhabited.
[
Footnote 10] Neither does
it disagree that it must prove that the two annexations had neither
the discriminatory purpose nor effect prohibited by § 5 of the Act.
Its challenge is to the District Court's conclusion that the city
had not carried its burden of showing that the annexations were
untainted by a racially discriminatory purpose. In arriving at this
judgment, the District Court relied on a variety of evidence,
principally its finding that the refusal to annex the Highlands
while annexing other areas was racially motivated. These findings,
both as to the purpose of not annexing the Highlands and with
respect to the weight of the evidence regarding the purpose of the
two annexations at issue, are findings of fact that we must accept
unless clearly erroneous. The city has not convinced us that they
are.
Page 479 U. S. 470
Appellant insists, as it did below, that its failure to annex
the Highlands was not racially motivated, but based upon economic
considerations. The District Court found this justification "a mere
pretext for race-biased annexation decisions." 623 F. Supp. at 784.
The court found that appellant's economic argument was developed
after the fact, and was not the true basis for the decision not to
annex the Highlands.
Id. at 784-785. Furthermore, the
court found that appellant's argument did not reflect economic
realities in a number of respects. For example, appellant's
calculation of the costs of annexing the Highlands included the
cost of services it was already providing
gratis to that
neighborhood.
Id. at 786-787. Appellant also failed to
consider that annexing the Highlands would generate immediate
ad valorem taxes and possibly development fees from the
construction of new homes.
Id. at 786. At the same time,
appellant's comparative estimate of the revenues that would be
generated by the Western Addition failed to take into account such
necessary costs as the construction of a new fire station, a major
traffic artery, and a new neighborhood park.
Id. at 787,
n. 21. The District Court concluded that refusing to annex the
Highlands was racially motivated.
Appellant argues that, even if its decision not to annex the
Highlands was racially motivated, that decision was not a change
respecting voting, and hence not subject to § 5. That point is
correct, but not dispositive; as the Solicitor General argues:
"[T]he failure to annex [black] areas, while the city was
simultaneously annexing non-black areas, is highly significant in
demonstrating that the city's annexation here was purposefully
designed to perpetuate Pleasant Grove as an enlarged enclave of
white voters."
Brief for United States 21, n. 12.
Appellant also relies on the fact that there were no black
voters in Pleasant Grove at the time the relevant annexation
decisions were made, so that the annexations did not reduce the
proportion of black voters or deny existing black voters
Page 479 U. S. 471
representation equivalent to their political strength in the
enlarged community.
Cf. City of Richmond v. United States,
422 U.S. at
422 U. S.
370-371. Appellant contends that, since the annexations
could not possibly have caused an impermissible effect on black
voting, it makes no sense to say that appellant had a
discriminatory purpose. This argument is based on the incorrect
assumption that an impermissible purpose under § 5 can relate only
to present circumstances. Section 5 looks not only to the present
effects of changes, but to their future effects as well, as shown
by the fact that annexations of vacant land are subject to
preclearance even though no one's right to vote is immediately
affected.
See supra, at
479 U. S.
467-468, and n. 8. Likewise, an impermissible purpose
under § 5 may relate to anticipated as well as present
circumstances. [
Footnote
11]
It is quite plausible to see appellant's annexation of the
Glasgow and Western Additions as motivated, in part, by the
impermissible purpose of minimizing future black voting
Page 479 U. S. 472
strength. [
Footnote 12]
Common sense teaches that appellant cannot indefinitely stave off
the influx of black residents and voters -- indeed, the process of
integration, long overdue, has already begun.
See supra at
479 U. S. 465,
n. 2. One means of thwarting this process is to provide for the
growth of a monolithic white voting block, thereby effectively
diluting the black vote in advance. This is just as impermissible a
purpose as the dilution of present black voting strength.
Cf.
City of Richmond, supra, at
422 U. S. 378.
To hold otherwise would make appellant's extraordinary success in
resisting integration thus far a shield for further resistance.
Nothing could be further from the purposes of the Voting Rights
Act.
In light of the record before us, we are not left with the
definite and firm conviction that the District Court was mistaken
either in finding that the refusal to annex the Highlands was
racially motivated or that there was insufficient proof that the
annexation of the Glasgow and Western Additions did not have a
purpose forbidden by § 5. Those findings are not, therefore,
clearly erroneous.
Anderson v. Bessemer City, 470 U.
S. 564 (1985).
The judgment of the District Court is accordingly
Affirmed.
[
Footnote 1]
Section 5, as set forth in 42 U.S.C. §1973c, provides in
relevant part:
"Whenever a State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this title based
upon determinations made under the first sentence of section
1973b(b) of this title are in effect shall enact or seek to
administer any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting different
from that in force or effect on November 1, 1964 . . . 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, . . . 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, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made."
It is undisputed that appellant, being a subdivision of the
State of Alabama, is covered by § 6.
See 30 Fed. Reg. 9897
(1966).
[
Footnote 2]
At the time the District Court denied appellant's motion for
summary judgment, the city had 32 black inhabitants, all of them
residents of a nursing home. Because these persons were not
registered to vote, and because city officials were apparently
unaware of their existence at the time appellant made its latest
annexation of land, the District Court treated appellant as
all-white. 668 F. Supp. at 1456, n. 3. Appellant informs us that,
in addition to the black residents of the nursing home, its
inhabitants now include three black families, with two blacks
registered to vote. Tr. of Oral Arg. 7. Two other black families
have homes under construction within the city limits.
Ibid.
[
Footnote 3]
Appellant's school system was subsequently found by a federal
court to be an impermissible attempt to thwart the implementation
of a unitary school system.
Stout v. Jefferson County Board of
Education, 448 F.2d 403 (CA5 1971). Appellant was ordered to
provide bus transportation to the black children assigned to its
schools, but declined to do so. Ultimately, the court abolished
appellant's school system and transferred control of the schools
back to Jefferson County.
Stout v. Jefferson County Board of
Education, 466 F.2d 1213 (CA5 1972),
cert. denied sub nom.
Board of Education of the City of Pleasant Grove v. Stout, 411
U.S. 930 (1973).
[
Footnote 4]
Appellant has since resumed free paramedic services to the
Highlands, and has continued the provision of free police services.
623 F.
Supp. 782, 785 (DC 1985).
At the same time that it terminated free fire and paramedic
protection to the Highlands, the City Council also terminated such
free services to the black Dolomite neighborhood, which likewise
petitioned unsuccessfully for annexation. The District Court's
opinion does not address in detail the decision not to annex the
Dolomite area, and we shall not consider it separately.
[
Footnote 5]
During hearings in 1981 on the extension of the Voting Rights
Act, Congress asked the Department of Justice to provide summaries
of relevant cases. In summarizing the present case, the Department
stated:
"The Attorney General interposed a Section 5 objection to the
annexation to Pleasant Grove of certain vacant land projected for
all-white residential development because of the city's refusal to
annex certain black areas."
Extension of the Voting Rights Act: Hearings before the
Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 97th Cong., 1st Sess., 2567 (1982).
[
Footnote 6]
The complaint sought relief only with respect to the Western
Addition, but the District Court, when it became aware that the
Glasgow Addition had never been precleared, ordered appellant to
amend the complaint to include that annexation as well. 568 F.
Supp. at 1456, n. 1.
[
Footnote 7]
The court also observed that, even if the burden of proving
discrimination was on the United States, the court
"would have had no difficulty in finding that the annexation
policy of Pleasant Grove is, by design, racially discriminatory in
violation of the Voting Rights Act."
623 F. Supp. at 788, n. 30.
[
Footnote 8]
See Brief for United States 26, and n. 26. The Attorney
General's position is as follows:
"Certain annexations, such as those of vacant land designated
for use as a public park, do not require Section 6 review. Because
Section 6 is concerned only with voting practices and procedures,
the Attorney General does not require submission for preclearance
of annexations of uninhabited land before such annexations take
place. Rather, the Attorney General requires covered jurisdictions
to submit such annexations for preclearance before inhabitants on
the annexed area may vote in the annexing jurisdiction."
Id. at 21, n. 12.
[
Footnote 9]
Indeed, in 1982 the Department apprised Congress of the Attorney
General's decision not to preclear appellant's annexation of the
Western Addition.
See n. 6,
supra. See
also 128 Cong.Rec. 14297 (1982) (remarks of Sen. Helms)
(criticizing Department of Justice decision not to preclear the
annexation of an undeveloped subdivision in Wilson, N.C.); S.Rep.
No. 97-417, p. 10, and n. 21 (1982) (citing United States
Commission on Civil Rights, The Voting Rights Act: Unfulfilled
Goals 66, which in turn notes that the Department of Justice has
denied preclearance to the annexations of undeveloped areas zoned
for middle-income housing).
[
Footnote 10]
The dissent finds it "difficult to see how the Court justifies
applying § 5 preclearance procedures at all" to the annexation of
the Western Addition, because the annexation did not immediately
enlarge the number of eligible voters.
Post at
479 U. S. 477.
It may be that Pleasant Grove could have delayed seeking
preclearance for the Western Addition until that area had
inhabitants desiring to vote,
see n 8,
supra, but it is understandable that the
city chose to seek preclearance at an earlier juncture: developing
a tract of land is an expensive proposition, and the marketability
of the new homes may depend on assurances that buyers will be
entitled to all the benefits of residency in the city -- including
voting. The Attorney General's decision to permit Pleasant Grove to
seek preclearance at the time it did accommodates the city's
interests, and was surely not forbidden by § 5.
[
Footnote 11]
Appellant's argument is also incorrect insofar as it implies
that a covered jurisdiction can short-circuit a purpose inquiry
under § 5 by arguing that the intended result was not impermissible
under an objective effects inquiry. Much of the dissent's argument
is to the same effect.
See post at
479 U. S.
474-477. We rejected such reasoning in
City of
Richmond v. United States, 422 U. S. 358
(1976). There, an annexation deprived blacks of majority voting
status, but we held that no impermissible effect had been shown
because "the post-annexation electoral system fairly recognize[d]
the [black] minority's political potential."
Id. at
422 U. S. 378.
But while the effect of reducing the relative strength of the black
vote was, standing alone, perfectly legal, we found it necessary to
remand the case for further inquiry into purpose. In so doing, we
stated:
"[I]t may be asked how it could be forbidden by § 5 to have the
purpose and intent of achieving only what is a perfectly legal
result under that section, and why we need remand for further
proceedings with respect to purpose alone. The answer is plain, and
we need not labor it. An official action, whether an annexation or
otherwise, taken for the purpose of discriminating against Negroes
on account of their race, has no legitimacy at all under our
Constitution or under the statute. . . . An annexation proved to be
of this kind and not proved to have a justifiable basis is
forbidden by § 6, whatever its actual effect may have been or may
be."
Id. at
422 U. S.
378-379.
[
Footnote 12]
To the extent that there is any doubt on the subject, it should
be remembered that appellant has the burden of proving the absence
of discriminatory purpose respecting voting.
See supra at
479 U. S.
469.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, dissenting.
The Court today affirms the decision of the District Court,
holding that a city can act with a purpose to "den[y] or abridg[e]"
black voting rights, 42 U.S.C. § 1973c, even when the city's
actions can have no present effect on the voting rights of any
black individual and any future effect on black voting rights is
purely speculative. Because the Court's finding of a violation of
the Voting Rights Act is inconsistent with the language and purpose
of the Act, I dissent.
Page 479 U. S. 473
I
Before examining the decision in this case, it is appropriate to
restate the principles articulated in this Court's decisions under
§ 5 of the Voting Rights Act. We have consistently noted: "The
language of § 5 clearly provides that it applies only to proposed
changes in voting procedures."
Beer v. United
States, 425 U. S. 130,
425 U. S. 138
(1976) (emphasis added).
See Allen v. State Board of
Elections, 393 U. S. 544,
393 U. S. 566
(1969). In
Perkins v. Matthews, 400 U.
S. 379 (1971), the Court first found that a proposed
annexation could constitute a "change" in voting procedures covered
by § 5. It explained the reason for this holding:
"[Section] 5 was designed to cover changes having a potential
for racial discrimination in voting, and such potential inheres in
a change in the composition of the electorate affected by an
annexation."
Id. at
400 U. S.
388-389 (emphasis added).
See Port Arthur v. United
States, 459 U. S. 159,
459 U. S. 161
(1982) ("
Perkins . . . held that changes in the boundary
lines of a city by annexations
that enlarge the number of
eligible voters are events covered by § 5") (emphasis added).
Thus, this Court's decisions establish that preclearance under § 5
is required when -- and only when -- an annexation changes the
previous "voting procedures" by altering the number or racial
composition of the municipal voters.
We also have defined the type of change in voting procedures
that violates the Voting Rights Act:
"'[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 franchise.'"
Lockhart v. United States, 460 U.
S. 125,
460 U. S. 134
(1983) (quoting
Beer v. United States, supra, at 141). An
annexation can have such a retrogressive effect on the voting
rights of blacks by "dilut[ing] the weight of the votes of the
voters to whom the franchise was limited before the annexation."
Perkins v. Matthews, supra, at
400 U. S. 388.
But the Court's inquiry has not terminated with a finding that
a
Page 479 U. S. 474
proposed annexation "reduc[es] the relative political strength
of the minority race in the enlarged city as compared with what it
was before the annexation."
City of Richmond v. United
States, 422 U. S. 358,
422 U. S. 378
(1975). An annexation that dilutes the minority vote "is not a
statutory violation as long as the post-annexation electoral system
fairly recognizes the minority's political potential."
Ibid.
While this Court's decisions have made clear that a voting
procedure change must lack both discriminatory purpose and effect
to survive § 5 scrutiny,
City of Rome v. United States,
446 U. S. 156,
446 U. S. 172
(1980), the Court has always recognized that a discriminatory
purpose within the meaning of § 5 must relate to voting. This
Court's broad statement respecting discriminatory purpose under § 5
must be read in context:
"An official action, whether an annexation or otherwise, taken
for the purpose of discriminating against Negroes on account of
their race, has no legitimacy at all under our Constitution or
under the statute. Section 5 forbids voting changes
taken with
the purpose of denying the vote on the grounds of race or
color. Congress surely has the power to prevent such gross
racial slurs, the only point of which is 'to despoil colored
citizens, and only colored citizens, of their theretofore enjoyed
voting rights.'
Gomillion v. Lightfoot, 364 U. S.
339,
364 U. S. 347 (1960)."
City of Richmond v. United States, supra, at
422 U. S. 378
(emphasis added). Thus, the previous decisions of this Court make
explicitly clear that, for a city to have a discriminatory purpose
within the meaning of the Voting Rights Act, it must intend its
action to have a retrogressive effect on the voting rights of
blacks.
Lockhart v. United States, supra, at
460 U. S.
134.
II
The Court today affirms a finding that, in annexing the two
parcels of land at issue, the city had the purpose, prohibited by
the Voting Rights Act, "of denying or abridging the right
Page 479 U. S. 475
to vote on account of race or color." 42 U.S.C. § 1973c. Because
the actions challenged in this case could not have had
any
effect on minority voting rights, much less a retrogressive effect,
it is clear that the city of Pleasant Grove could not have acted
with such an intent respecting either of the annexations at issue
in this case.
A
When the Glasgow Addition was annexed in 1969, it contained only
one family of 12 white voters. Now, more than 15 years later, this
40-acre tract still contains only one family that currently numbers
20 white voters. Of course, one can say that the addition of a
handful of white voters to a community of some 7,000 white
residents "enlarge[d] the number of eligible voters."
Port
Arthur v. United States, supra, at
459 U. S. 161.
The same could be said if an annexation added only one white voter.
But a finding that either annexation was motivated by its
anticipated effect on
voting rights is out of touch with
reality. The "dilution" of any resident's voting rights from an
annexation such as the Glasgow Addition -- 20 votes in a city of
7,000 residents -- could not constitute a retrogression in voting
rights under the Act. No showing has been made -- and indeed none
could be made -- that a change of this number of white voters over
a 15-year period has had any effect on voting rights. Nor has the
annexation in any way "change[d] . . . the composition of the
electorate."
Perkins v. Matthews, supra, at
400 U. S. 389.
The city was composed solely of white voters before and after the
annexation of the Glasgow Addition. The annexation therefore could
not have had
any effect whatsoever on minority voting
rights, and the city could not have acted with a purpose to dilute
the voting rights of black municipal voters.
The Court attempts to avoid this conclusion by finding that a
retrogression in voting rights, for the purpose of ascertaining
discriminatory motivation, can be gauged by the effect of the
annexation on some hypothetical future black municipal
Page 479 U. S. 476
voters. According to this speculative reasoning,
if one
assumes that some hypothetical black voters will move into Pleasant
Grove in the future, and
if one further assumes that the
racial composition of the Glasgow Addition will remain unchanged,
the hypothetical black voters will find their voting strength
diluted from what it would have been absent the annexation.
[
Footnote 2/1] But such speculation
in finding a discriminatory purpose on the part of a state actor is
illogical and unprecedented. Although we have stated that § 5
reaches changes with the "potential for racial discrimination in
voting,"
Perkins v. Matthews, 400 U.S. at
400 U. S. 389,
the "potential" refers to present and concrete effects, not effects
based only on speculation as to what
might happen at some
time in the future. Under § 5, the Court consistently has looked to
the effect of a voting change on the present minority residents of
the relevant political subdivision.
See City of Richmond v.
United States, supra, at
422 U. S. 378
(the relevant comparison in assessing whether "the
post-annexation electoral system fairly recognizes the
minority's political potential" is between "the relative political
strength of the minority race in the enlarged city as compared with
what it was before the annexation"). [
Footnote 2/2] Where an annexation's effect on voting
rights is
Page 479 U. S. 477
purely hypothetical, an inference that the city acted with a
motivation related to
voting rights is unsupportable.
B
The Western Addition, annexed in 1979, is a parcel of vacant
land. Its annexation did not and could not in any way "change . . .
the composition of the electorate."
Perkins v. Matthews,
supra, at
400 U. S. 389.
It did not even "enlarge the number of eligible voters."
Port
Arthur v. United States, 459 U.S. at
459 U. S. 161.
Thus, it is difficult to see how the Court justifies applying § 5
preclearance procedures at all. But even if one assumes that the §
5 procedures apply, this annexation could not have been motivated
by a discriminatory purpose proscribed by the Voting Rights Act.
There is no basis for imputing an intent to deny or abridge the
voting rights of blacks when a community of white citizens annexes
completely vacant land. The annexation did not exclude or include a
single voter in Pleasant Grove. Nor could the annexation
have been intended to have a retrogressive effect on black voting
rights when there were no black voters in the city, and no voters,
white or black, in the Western Addition.
The Court again relies on future hypothetical black voters to
find that the city acted with a "purpose of denying the vote on the
grounds of race or color."
City of Richmond v. United
States, 422 U.S. at
422 U. S. 378.
Under the same reasoning employed to invalidate the annexation of
the Glasgow Addition, the Court relies on its speculation that,
if the Western Addition became populated with whites and
if black voters moved into the city at some time in the
future, their vote would be less effective than it would have been
had the annexation not occurred. But the Court's theory is even
more speculative when applied to the annexation of the vacant
Western Addition. There is no way for the city to ensure that black
individuals do not move into the Western Addition. The Fourteenth
Amendment and various civil rights laws prohibit racially
discriminatory state action, and fair
Page 479 U. S. 478
housing laws prevent private action that would discourage black
individuals from moving into the area. The District Court's
conclusion that the Western Addition "is likely to be developed for
use by white persons only,"
568 F.
Supp. 1455, 1457, n. 8 (DC 1983), is sheer speculation. Whites
as well as blacks lawfully can move into this area, and not even
the prescience of federal courts can predict the extent to which
this will occur, or whether there ever will be any denial or
dilution of the voting rights of blacks. [
Footnote 2/3]
C
The Court seeks support for its finding that the city acted with
discriminatory motivation in the fact that it has declined in the
past to annex three predominantly black communities. [
Footnote 2/4] In his dissent from the
decision of the District Court, Judge MacKinnon persuasively
pointed out that the city's economic justification for its
annexation policy is plausible.
623 F.
Supp. 782, 793-795 (DC 1985). Even if one agreed with the
District Court's view that the economic justification was flawed,
this would not support the conclusion that the city acted in this
case with a discriminatory motivation prohibited by the Voting
Rights Act. The Government concedes that a failure to annex is not
a voting procedure "change" covered by § 5.
See Brief for
United States 21, n. 12. Nothing in the legislative history of § 5
or in any decision
Page 479 U. S. 479
of this Court is to the contrary. The only possible relevance of
the failure to annex is to the city's intent respecting the
annexations that did occur. The desire of the city to annex a
vacant parcel of land and a parcel inhabited by one white family,
combined with the failure to annex black communities, is relevant
-- if at all -- only if the motivation inferred fairly can be said
to relate to voting. Even if the city desired to exclude persons
from the city because of their race, the annexations at issue could
not possibly deny, abridge, or in any way effect a retrogression in
any black individual's municipal voting rights. The Court's holding
that the city nevertheless intended to impair black voting rights
is without justification.
III
As Judge MacKinnon noted in his dissent from the District
Court's opinion: "There may, in fact, be actionable constitutional
violations occurring in the City." 568 F. Supp. at 1462. But the
possible existence of discriminatory intent and conduct unrelated
to voting does not justify finding the city liable under the Voting
Rights Act. We normally presume that state actors respect the
guarantees of the Constitution, and we require an individual who
alleges otherwise to prove the existence of purposeful
discrimination.
See Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S. 252,
429 U. S. 265
(1977);
Washington v. Davis, 426 U.
S. 229,
426 U. S. 240
(1976). The Voting Rights Act shifts the burden of proof to the
state actor to prove the absence of discriminatory purpose. This
Court upheld this unusual intrusion by the Act on state sovereignty
specifically because its procedures were rationally related to the
Fifteenth Amendment's guarantee respecting the right to vote.
South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 325,
383 U. S. 337
(1966). This shift in the burden of proof is justified only when
the challenged conduct relates to voting. Here, the Court finds the
city's conduct in fact related to voting when such a relationship
cannot rationally exist.
Page 479 U. S. 480
In sum, the Court's reading of the Voting Rights Act divorces
the Act from its constitutional justification -- protecting voting
rights -- and represents an extension of the Act beyond even its
"broadest possible scope,"
Allen v. State Board of
Elections, 393 U.S. at
393 U. S. 567.
Accordingly, I dissent.
[
Footnote 2/1]
It is difficult even to hypothesize a situation in which the
foreseeable effect on black voting rights from an addition of a
20-member white family would be anything more than
de
minimis. Where the hypothetical effect of an annexation cannot
be to dilute black voting strength within the meaning of the Voting
Rights Act, to impute such a purpose to the city is irrational.
[
Footnote 2/2]
At issue in City of Richmond was the proposed annexation by the
city of 23 square miles of adjacent land. The pre-annexation
population of the city was 202,359, of which 104,207 or 52% were
black citizens. The annexation would have added 47,262 people to
the city's population, of whom 1,557 were black. The
post-annexation population of the city would have been 249,621, of
which 105,764 or 42% would have been black. 422 U.S. at
422 U. S. 363.
The proposed annexation thus would have significantly changed the
composition of the municipal electorate and substantially reduced
black voting strength within the city.
[
Footnote 2/3]
If we are to engage in speculation, an equally logical, if not
more compelling, assumption is that the annexation of the Western
Addition will
increase the black voting strength in the
city. The Western Addition is zoned to contain 700 residences. With
the sale of each home, the possibility exists that a potential
black voter will become a city resident. The same possibility
exists with each sale of an existing home in Pleasant Grove.
Logically, the increase that the annexation causes in the number of
homes for sale should increase the probability that a black
individual will buy one and become a municipal voter.
[
Footnote 2/4]
In 1971, the city denied the annexation request of an area
including the historically all-black Woodward School. In 1979, the
city denied the annexation requests of the all-black Pleasant Grove
Highlands and the predominantly black Dolomite area.