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Nos. 95-1455 and 95-1508
JANET RENO, ATTORNEY GENERAL, APPELLANT 95-1455 v.
on appeals from the united states district court for the district of columbia
[
Justice
It is, of course, well settled that the Attorney General must refuse to preclear a new election procedure in a covered jurisdiction if it will "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141 (1976). A retrogressive effect or a retrogressive purpose is a sufficient basis for denying a preclearance request under §5. Today, however, the Court holds that retrogression is the only kind of effect that will justify denial of preclearance under §5, ante, at 4-14, and it assumes that "the §5 purpose inquiry [never] extends beyond the search for retrogressive intent." Ante, at 14. While I agree that this action must be remanded even under the Court's miserly interpretation of §5, I disagree with the Court's holding/assumption that §5 is concerned only with retrogressive effects and purposes.
Before explaining my disagreement with the Court, I think it important to emphasize the three factual predicates that underlie our analysis of the issues. First, we assume that the plan submitted by the Board was not "retrogressive" because it did not make matters any worse than they had been in the past. None of the 12 districts had ever had a black majority and a black person had never been elected to the Bossier Parish School Board (Board). App. to Juris. Statement 67a. Second, because the majority in both the District Court and this Court found that even clear violations of §2 must be precleared and thus found it unnecessary to discuss whether §2 was violated in this action, we may assume that the record discloses a "clear violation" of §2. This means that, in the language of §2, it is perfectly clear that "the political processes leading to nomination or election [to positions on the Board] are not equally open to participation by members of [the African American race] in that its members have less opportunity than other members of the electorate to . . . elect representatives of their choice." 42 U.S.C. § 1973(b). [n.2] Third, if the Court is correct in assuming that the purpose inquiry under §5 may be limited to evidence of "retrogressive intent," it must also be willing to assume that the documents submitted in support of the request for preclearance clearly establish that the plan was adopted for the specific purpose of preventing African Americans from obtaining representation on the Board. Indeed, for the purpose of analyzing the legal issues, we must assume that Judge Kessler, concurring in part and dissenting in part, accurately summarized the evidence when she wrote:
"The evidence in this case demonstrates overwhelmingly that the School Board's decision to adopt the Police Jury redistricting plan was motivated by discriminatory purpose. The adoption of the Police Jury plan bears heavily on the black community because it denies its members a reasonable opportunity to elect a candidate of their choice. The history of discrimination by the Bossier School System and the Parish itself demonstrates the Board's continued refusal to address the concerns of the black community in Bossier Parish. The sequence of events leading up to the adoption of the plan illustrate the Board's discriminatory purpose. The School Board's substantive departures from traditional districting principles is similarly probative of discriminatory motive. Three School Board members have acknowledged that the Board is hostile to black representation. Moreover, some of the purported rationales for the School Board's decision are flat out untrue, and others are so glaringly inconsistent with the facts of the case that they are obviously pretexts." 907 F. Supp. 434, 463 (CADC 1995).
If the purpose and the effect of the Board's plan were simply to maintain the discriminatory status quo as described by Judge Kessler, the plan would not have been retrogressive. But, as I discuss below, that is not a sufficient reason for concluding that it complied with §5.
In the Voting Rights Act of 1965, Congress enacted a complex scheme of remedies for racial discrimination in voting. As originally enacted, §2 of the Act was "an uncontroversial provision" that "simply restated" the prohibitions against such discrimination "already contained in the Fifteenth Amendment," Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality opinion). Like the constitutional prohibitions against discriminatory districting practices that were invalidated in cases like Gomillion v. Lightfoot, 364 U.S. 339 (1960), and White v. Regester, 412 U.S. 755 (1973), §2 was made applicable to every State and political subdivision in the country. Section 5, on the other hand, was highly controversial because it imposed novel, extraordinary remedies in certain areas where discrimination had been most flagrant. See South Carolina v. Katzenbach, 383 U.S. 301, 334-335 (1966). [n.3] Jurisdictions like Bossier Parish in Louisiana are covered by §5 because their history of discrimination against African Americans was a matter of special concern to Congress. Because these jurisdictions had resorted to various strategies to avoid complying with court orders to remedy discrimination, "Congress had reason to suppose that [they] might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself." Id., at 335. Thus Congress enacted §5, not to maintain the discriminatory status quo, but to stay ahead of efforts by the most resistant jurisdictions to undermine the Act's purpose of "rid[ding] the country of racial discrimination." Id., at 315 ("The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant").
In areas of the country lacking a history of pervasive discrimination, Congress presumed that voting practices were generally lawful. Accordingly, the burden of proving a violation of §2 has always rested on the party challenging the voting practice. The situation is dramatically different in covered jurisdictions. In those jurisdictions, §5 flatly prohibits the adoption of any new voting procedure unless the State or political subdivision institutes an action in the Federal District Court for the District of Columbia and obtains a declaratory judgment that the change will not have a discriminatory purpose or effect. See 42 U.S.C. § 1973c. The burden of proving compliance with the Act rests on the jurisdiction. A proviso to §5 gives the Attorney General the authority to allow the new procedure to go into effect, but like the immigration statutes that give her broad discretion to waive deportation of undesirable aliens, it does not expressly impose any limit on her discretion to refuse preclearance. See ibid. The Attorney General's discretion is, however, cabined by regulations that are presumptively valid if they "are reasonable and do not conflict with the Voting Rights Act itself," Georgia v. United States, 411 U.S. 526, 536 (1973). Those regulations provide that preclearance will generally be granted if a proposed change "is free of discriminatory purpose and retrogressive effect"; they also provide, however, that in "those instances" in which the Attorney General concludes "that a bar to implementation of the change is necessary to prevent a clear violation of amended section 2," preclearance shall be withheld. [n.4] There is no basis for the Court's speculation that litigants would so " `routinely,' " ante, at 5, employ this 10 year old regulation as to "make compliance with §5 contingent upon compliance with §2." Ante, at 5. Nor do the regulations require the jurisdiction to assume the burden of proving the absence of vote dilution, see ante, at 7-8. They merely preclude preclearance when "necessary to prevent a clear violation of . . . section 2." While the burden of disproving discriminatory purpose or retrogressive effect is on the submitting jurisdiction, if the Attorney General's conclusion that the change would clearly violate §2 is challenged, the burden on that issue, as in any §2 challenge, should rest on the Attorney General. [n.5]
The Court does not suggest that this regulation is inconsistent with the text of §5. Nor would this be persuasive, since the language of §5 forbids preclearance of any voting practice that would have "the purpose [or] effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. Instead the Court rests its entire analysis on the flawed premise that our cases hold that a change, even if otherwise unlawful, cannot have an effect prohibited by §5 unless that effect is retrogressive. The two cases on which the Court relies, Beer v. United States, 425 U.S. 130 (1976), and City of Lockhart v. United States, 460 U.S. 125 (1983), do hold (as the current regulations provide) that proof that a change is not retrogressive is normally sufficient to justify preclearance under §5. In neither case, however was the Court confronted with the question whether that showing would be sufficient if the proposed change was so discriminatory that it clearly violated some other federal law. In fact, in Beer "which held that a legislative reapportionment enhancing the position of African American voters did not have a discriminatory effect--the Court stated that "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." 425 U. S., at 141. [n.6] Thus, to the extent that the Beer Court addressed the question at all, it suggested that certain nonretrogressive changes that were nevertheless discriminatory should not be precleared.
The Court discounts the significance of the "unless" clause because it refers to a constitutional violation rather than a statutory violation. According to the Court's reading, the Beer dictum at most precludes preclearance of changes that violate the Constitution rather than changes that violate §2. This argument is unpersuasive. As the majority notes, the Beer Court cites White v. Regester, 412 U. S., at 766, which found unconstitutional a reapportionment scheme that gave African American residents "less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." Because, in 1976, when Beer was decided, the §2 standard was coextensive with the constitutional standard, Beer did not purport to distinguish between challenges brought under the Constitution and those brought under the statute. Rather Beer's dictum suggests that any changes that violate the standard established in White v. Regester should not be precleared. [n.7]
As the Court recognizes, ante, at 9-10, the law has changed in two respects since the announcement of the Beer dictum. In 1980, in what was perceived by Congress to be a change in the standard applied in White v. Regester, a plurality of this Court concluded that discriminatory purpose is an essential element of a constitutional vote dilution challenge. See Mobile v. Bolden, 446 U.S. 55, 62 (1980). In reaction to that decision, in 1982 Congress amended §2 by placing in the statute the language used in the White opinion to describe what is commonly known as the "results" standard for evaluating vote dilution challenges. See 96 Stat. 134 (now codified at 42 U.S.C. §§ 1973(a)-(b)); Thornburg v. Gingles, 478 U.S. 30, 35 (1986). [n.8] Thus Congress preserved, as a matter of statutory law, the very same standard that the Court had identified in Beer as an exception to the general rule requiring pre-clearance of nonretrogressive changes. Because in 1975, Beer required denial of preclearance for voting plans that violated the White standard, it follows that Congress in preserving the White standard, intended also that the Attorney General should continue to refuse to preclear plans violating that standard.
That intent is confirmed by the legislative history of the 1982 Act. The Senate Report states:
"Under the rule of 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 141; see also 142
n. 14 (citing to the dilution cases from Fortson v. Dorsey [,
379
U.S. 433 (1965),] through White v. Regester. 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.
The House Report conveys the same message in different language. It unequivocally states that whether a discriminatory practice or procedure was in existence before 1965 (and therefore only subject to attack under §2), or is the product of a recent change (and therefore subject to preclearance under §5) "affects only the mechanism that triggers relief." H. R. Rep. No. 97-227, p. 28 (1981). This statement plainly indicates that the Committee understood the substantive standards for §2 and §5 violations to be the same whenever a challenged practice in a covered jurisdiction represents a change subject to the dictates of §5. [n.9] Thus, it is reasonable to assume that Congress, by endorsing the "unless" clause in Beer, contemplated the denial of pre-clearance for any change that clearly violates amended §2. The majority by belittling this legislative history, abrogates Congress' effort, in enacting the 1982 amendments, "to broaden the protection afforded by the Voting Rights Act." Chisom v. Roemer, 501 U.S. 380, 404 (1991).
Despite this strong evidence of Congress' intent, the majority holds that no deference to the Attorney General's regulation is warranted. The Court suggests that had Congress wished to alter "our longstanding interpretation" of §5, Congress would have made this clear. Ante, at 4-6. But nothing in our "settled interpretation" of §5, ante, at 12, is inconsistent with the Attorney General's reading of the statute. To the contrary, our precedent actually indicates that nonretrogressive plans that are otherwise discriminatory under White v. Regester should not be precleared. As neither the language nor the legislative history of §5 can be said to conflict with the view that changes that clearly violate §2 are not entitled to preclearance, there is no legitimate basis for refusing to defer to the Attorney General's regulation. See Presley v. Etowah County Comm'n, 502 U.S. 491, 508 (1992).
In Part III of its opinion the Court correctly concludes that this action must be remanded for further proceedings because the District Court erroneously refused to consider certain evidence that is arguably relevant to whether the Board has proved an absence of discriminatory purpose under §5. Because the Court appears satisfied that the disputed evidence may be probative of an " `intent to retrogress,' " it concludes that it is unnecessary to decide "whether the §5 purpose inquiry ever extends beyond the search for retrogressive intent." Ante, at 14. For two reasons, I think it most unwise to reverse on such a narrow ground.
First, I agree with Justice Breyer, see ante, at ___, that there is simply no basis for imposing this limitation on the purpose inquiry. None of our cases have held that §5's purpose test is limited to retrogressive intent. In Pleasant Grove v. United States, 479 U.S. 462, 469-472 (1987), for instance, we found that the city had failed to prove that its annexation of certain white areas lacked a discriminatory purpose. Despite the fact that the annexation lacked a retrogressive effect, we found it was subject to §5 preclearance. Ibid.; see also id., at 474-475 (Powell, J., dissenting) (contending that the majority erred in holding that a discriminatory purpose could be found even though there was no intent "to have a retrogressive effect"). Furthermore, limiting the §5 purpose inquiry to retrogressive intent is inconsistent with the basic purpose of the Act. Assume, for example, that the record unambiguously disclosed a long history of deliberate exclusion of African Americans from participating in local elections, including a series of changes each of which was adopted for the specific purpose of maintaining the status quo. None of those changes would have been motivated by an "intent to regress," but each would have been motivated by a "discriminatory purpose" as that term is commonly understood. Given the long settled understanding that §5 of the Act was enacted to prevent covered jurisdictions from "contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination," South Carolina v. Katzenbach, 383 U. S., at 335, it is inconceivable that Congress intended to authorize preclearance of changes adopted for the sole purpose of perpetuating an existing pattern of discrimination.
Second, the Court's failure to make this point clear can only complicate the task of the District Court on remand. If that court takes the narrow approach suggested by the Court, another appeal will surely follow; if a majority ultimately agrees with my view of the issue, another remand will then be necessary. On the other hand, if the District Court does not limit its consideration to evidence of retrogressive intent, and if it therefore rules against the Board, respondents will bring the case back and the Court would then have to resolve the issue definitively.
In sum, both the interest in orderly procedure and the fact that a correct answer to the issue is pellucidly clear, should be sufficient to persuade the Court to state definitively that §5 preclearance should be denied if Judge Kessler's evaluation of the record is correct.
Accordingly, while I concur in the judgment insofar as it remands the action for further proceedings, I dissent from the decision insofar as it fails to authorize proceedings in accordance with the views set forth above.
Notes
1 As originally enacted, §5 provided:
"Sec. 5. Whenever a State or political subdivision with respect to
which the prohibitions set forth in section 4(a) 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, except that neither 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 section 2284 of title 28 of the United States Code [28 USCS §2284] and any appeal shall lie to the Supreme Court." 79 Stat. 439.
2 Although the majority in the District Court refused to consider any of the evidence relevant to a §2 violation, the parties' stipulations suggest that the plan violated §2. For instance, the parties' stipulated that there had been a long history of discrimination against black voters in Bossier Parish, see App. to Juris. Statement 130a-140a; that voting in Bossier Parish was racially polarized, see id., at 122a-127a; and that it was possible to draw two majority black districts without violating traditional districting principles, see id., at 76a, 82a-83a, 114a-115a.
3 Section 4 of the Act sets forth the formula for identifying the jurisdictions in which such discrimination had occurred, see South Carolina v. Katzenbach, 383 U. S., at 317-318.
4 Title 28 CFR § 51.55 (1996) provides:
"Consistency with constitutional and statutory requirements.
"(a) Consideration in general. In making a determination the Attorney General will consider whether the change is free of discriminatory purpose and retrogressive effect in light of, and with particular attention being given to, the requirements of the 14th, 15th, and 24th amendments to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other constitutional and statutory provisions designed to safeguard the right to vote from denial or abridgment on account of race, color, or membership in a language minority group.
"(b) Section 2. (1) Preclearance under section 5 of a voting change will not preclude any legal action under section 2 by the Attorney General if implementation of the change subsequently demonstrates that such action is appropriate.
"(2) In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retrogressive effect, but also concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended section 2, the Attorney General shall withhold section 5 preclearance."
5 Thus, I agree with those courts that have found that the jurisdiction is not required to prove that its proposed change will not violate §2 in order to receive preclearance. See Arizona v. Reno, 887 F. Supp. 318, 321 (DC 1995). Although several three judge district courts have concluded that §2 standards should not be incorporated into §5, none has held that preclearance should be granted when there is a clear violation of §2; rather, they appear simply to have determined that a §2 inquiry is not routinely required in a §5 case. See, e.g., Georgia v. Reno, 881 F. Supp. 7, 12-14 (DC 1994); New York v. United States, 874 F. Supp. 394, 398-399 (DC 1994); cf. Burton v. Sheheen, 793 F. Supp. 1329, 1350 (SC 1992) (holding that although courts are not "obligated to completely graft" §2 standards onto §5, "[i]t would be incongruous for the court to adopt a plan which did not comport with the standards and guidelines of §2").
6 In Lockhart the Court disavowed reliance on the ameliorative character of the change reviewed in Beer, see 460 U. S., at 134, n. 10. It left open the question whether Congress had altered the Beer standard when it amended §2 in 1982, id., at 133, n. 9, and said nothing about the possible significance of a violation of a constitutional or statutory prohibition against vote dilution.
7 In response to this dissent, the majority contends that, at most, Beer v. United States, 425 U.S. 130 (1976), allows denial of preclearance for those changes that violate the Constitution. See ante, at 10-11. Thus, the majority apparently concedes that our "settled interpretation," ante, at 12, of §5 supports a denial of preclearance for at least some nonretrogressive changes.
8 The amended version of §2 tracks the language in White v. Regester, 412 U.S. 755, 766 (1973).
9 The postenactment legislative record also supports the Attorney General's interpretation of §5. In 1985, the Attorney General first proposed regulations requiring a denial of preclearance "based upon violation of Section 2 if there is clear and convincing evidence of such a violation." 50 Fed. Reg. 19122, 19131. Congress held oversight hearings in which several witnesses, including the Assistant Attorney General, Civil Rights Division, testified that clear violations of §2 should not be precleared. See Oversight Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, Proposed Changes to Regulations Governing Section 5 of the Voting Rights Act, 99th Cong., 1st Sess., 47, 149, 151-152 (1985). Following these hearings, the House Judiciary Subcommittee on Civil and Constitutional Rights issued a Report in which it concluded "that it is a proper interpretation of the legislative history of the 1982 amendments to use Section 2 standards in the course of making Section 5 determinations." Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, Voting Rights Act: Proposed Section 5 Regulations, 99th Cong., 2d Sess., Ser. No. 9, p. 5 (Comm. Print 1986). Although this history does not provide direct evidence of the enacting Congress' intent, it does constitute an informed expert opinion concerning the validity of the Attorney General's regulation.