Lead Opinion
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist joined.
The city of Mobile, Ala., has since 1911 been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile’s Negro voters in contravention of federal statutory or constitutional law.
The appellees brought this suit in the Federal District Court for the Southern District of Alabama as a class action on behalf of all Negro citizens of Mobile.
I
In Alabama, the form of municipal government a city may adopt is governed by state law. Until 1911, cities not covered by specific legislation were limited to governing themselves through a mayor and city council.
The three Commissioners jointly exercise all legislative, executive, and administrative power in the municipality. They are required after election to designate one of their number as Mayor, a largely ceremonial office, but no formal provision is made for allocating specific executive or administrative duties among the three.
II
Although required by general principles of judicial administration to do so, Spector Motor Service, Inc. v. McLaughlin,
Section 2 of the Voting Rights Act provides:
“No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437, as amended, 42 U. S. C. § 1973.
Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision,
Section 2 was an uncontroversial provision in proposed legislation whose other provisions engendered protracted dispute. The House Report on the bill simply recited that § 2 “grants ... a right to be free from enactment or enforcement of voting qualifications ... or practices which deny or abridge the right to vote on account of race or color.” H. R. Rep. No. 439, 89th Cong., 1st Sess., 23 (1965). See also S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). The view that this section simply restated the prohibitions already contained in the Fifteenth Amendment was expressed without contradiction during the Senate hearings. Senator Dirksen indicated at one point that all States, whether or not covered by the preclearance provisions of § 5 of the proposed legislation, were prohibited from discriminating against Negro voters by § 2, which he termed “almost a rephrasing of the 15th [A]mendment.” Attorney General Katzenbach agreed. See Voting Rights: Hearings on S. 1564 .before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 208 (1965).
In view of the section’s language and its sparse but clear legislative history, it is evident that this statutory provision adds nothing to the appellees’ Fifteenth Amendment claim. We turn, therefore, to a consideration of the validity of the judgment of the Court of Appeals with respect to the Fifteenth Amendment.
Ill
The Court’s early decisions under the Fifteenth Amendment established that it imposes but one limitation on the powers of the States. It forbids them to discriminate against Negroes in matters having to do with voting. See Ex parte Yarbrough,
Our decisions, moreover, have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. In Guinn v. United States,
The Court’s more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. In Gomillion v. Lightfoot,
In Wright v. Rockefeller,
While other of the Court’s Fifteenth Amendment decisions have dealt with different issues, none has questioned the necessity of showing purposeful discrimination in order to show a Fifteenth Amendment violation. The cases of Smith v. Allwright,
Terry v. Adams, supra, posed a more difficult question of state involvement. The primary election challenged in that case was conducted by a county political organization, the Jaybird Association, that was neither authorized nor regulated under state law. The candidates chosen in the Jaybird primary, however, invariably won in the subsequent Democratic primary and in the general election, and the Court found that the Fifteenth Amendment had been violated. Although the several supporting opinions differed in their formulation of this conclusion, there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process.
The appellees have argued in this Court that Smith v. Allwright and Terry v. Adams support the conclusion that the at-large system of elections in Mobile is unconstitutional, reasoning that the effect of racially polarized voting in Mobile is the same as that of a racially exclusionary primary. The only characteristic, however, of the exclusionary primaries that offended the Fifteenth Amendment was that Negroes were not permitted to vote in them. The difficult question was whether the “State ha[d] had a hand in” the patent dis
The answer to the appellees’ argument is that, as the District Court expressly found, their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected, and neither Smith v. Allwright nor Terry v. Adams contains any implication to the contrary. That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote “on account of race, color, or previous condition of servitude.” Having found that Negroes in Mobile “register and vote without hindrance,’’¿the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case.
IV
The Court of Appeals also agreed with the District Court that Mobile’s at-large electoral system violates the Equal Protection Clause of the Fourteenth Amendment. There remains for consideration, therefore, the validity of its judgment on that score.
A
The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multi-member constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims,
Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional per se, e. g., White v. Regester,
This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis,
“The rule is the same in other contexts. Wright v. Rockefeller,376 U. S. 52 (1964), upheld a New York congressional apportionment statute against claims that district lines had been' racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature 'was either motivated by racial considerations or in fact drew the districts on racial lines’; the plaintiffs had not shown that the statute 'was the product of a state contrivance to segregate on the basis of race or place of origin.’ Id., at 56, 58. The dissenters were in agreement that the issue was whether the 'boundaries . . . were purposefully drawn on racial lines.’ Id., at 67.” Washington v. Davis, supra, at 240.
More recently, in Arlington Heights v. Metropolitan Housing Dev. Corp., supra, the Court again relied on Wright v. Rockefeller to illustrate the principle that “‘[pjroof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”
In only one case has the Court sustained a claim that multi-member legislative districts unconstitutionally diluted the voting strength of a discrete group. That case was White v. Regester. There the Court upheld a constitutional challenge by Negroes and Mexiean-Americans to parts of a legislative reapportionment plan adopted by the State of Texas. The plaintiffs alleged that the multimember districts for the two counties in which they resided minimized the effect of their votes in violation of the Fourteenth Amendment, and the Court held that the plaintiffs had been able to “produce evidence to support findings that the political processes lead
White v. Regester is thus consistent with “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose,” Washington v. Davis,
We may assume, for present purposes, that an at-large election of city officials with all the legislative, executive, and administrative power of the municipal government is constitutionally indistinguishable from the election of a few members of a state legislative body in multimember districts — although this may be a rash assumption.
In light of the criteria identified in Zimmer, the District Court based its conclusion of unconstitutionality primarily on the fact that no Negro had ever been elected to the City Commission, apparently because of the pervasiveness of racially polarized voting in Mobile. The trial court also found that city officials had not been as responsive to the interests of Negroes as to those of white persons. On the basis of these findings, the court concluded that the political processes in Mobile were not equally open to Negroes, despite its seemingly inconsistent findings that there were no inhibitions against Negroes becoming candidates, and that in fact Negroes had registered and voted without hindrance.
First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court’s findings of fact, unquestioned on appeal, make clear that Negroes register and vote in Mobile “without hindrance,” and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission. Indeed, it was undisputed that the only active “slating” organization in the city is comprised of Negroes. It may be that Negro candidates have been defeated, but that fact alone does not work a constitutional deprivation. Whitcomb v. Chavis,
Second, the District Court relied in part on its finding that the persons who were elected to the Commission discriminated against Negroes in municipal employment and in dispensing public services. If that is the case, those discriminated against may be entitled to relief under the Constitution, albeit of a sort quite different from that sought in the present case. The Equal Protection Clause proscribes purposeful discrimination because of race by any unit of state government, what
Third, the District Court and the Court of Appeals supported their conclusion by drawing upon the substantial history of official racial discrimination in Alabama. But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question.
Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out. But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester,
We turn finally to the arguments advanced in Part I of Mr. Justice Marshall’s dissenting opinion. The theory of this dissenting opinion — a theory much more extreme than that espoused by the District Court or the Court of Appeals— appears to be that every “political group/’ or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers.
Whatever appeal the dissenting opinion’s view may have as a matter of political theory, it is not the law. The Equal Protection Clause of the Fourteenth Amendment does not
It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson,
More than 100 years ago the Court unanimously held that “the Constitution of the United States does not confer the right of suffrage upon any one. . . .” Minor v. Happersett,
The dissenting opinion erroneously discovers the asserted entitlement to group representation within the “one person, one vote” principle of Reynolds v. Sims, supra, and its progeny.
The dissenting opinion places an extraordinary interpretation on these decisions, an interpretation not justified by Reynolds v. Sims itself or by any other decision of this Court. It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation.
The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them. Reversing the trial court, this Court said:
“The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and repre*80 sents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court's view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.” Whitcomb v. Chavis, supra, at 156-157 (footnotes omitted).
V
The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings.
It is so ordered.
Notes
Approximately 35.4% of the residents of Mobile are Negro.
79 Stat. 437, as amended, 42 U. S. C. § 1973. The complaint also contained claims based on the First and Thirteenth Amendments and on 42 U. S. C. § 1983 and 42 U. S. C. § 1985 (3) (1976 ed., Supp. II). Those claims have not been pressed in this Court.
The District Court has stayed its orders pending disposition of the present appeal.
Ala. Code §11-43 (1975).
Act No. 281,1911 Ala. Acts, p. 330.
In 1965 the Alabama Legislature enacted Act No. 823, 1965 Ala. Acts, p. 1539, § 2 of which designated specific administrative tasks to be performed by each Commissioner and provided that the title of Mayor be rotated among the three. After the present lawsuit was commenced, the city of Mobile belatedly submitted Act No. 823 to the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 42 U. S. C. § 1973c. The Attorney General objected to the legislation on the ground that the city had not shown that § 2 of the Act would not have the effect of abridging the right of Negroes to vote. No suit has been brought in the District Court for the District of Columbia to seek clearance under § 5 of the Voting Rights Act and, accordingly, § 2 of Act No. 823 is in abeyance.
According to the 1979 Municipal Year Book, most municipalities of over 25,000 people conducted at-large elections of their city commissioners or council members as of 1977. Id., at 98-99. It is reasonable to suppose that an even larger majority of other municipalities did so.
Cf. Allen v. State Board of Elections,
Section 1 of the Fifteenth Amendment provides:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The Court has repeatedly cited Gomillion v. Lightfoot for the principle that an invidious purpose must be adduced to support a claim of unconstitutionality. See Personnel Administrator of Mass. v. Feeney,
Mr. Justice Marshall has elsewhere described the fair import of the Gomillion and Wright cases: “In the two Fifteenth Amendment redistricting cases, Wright v. Rockefeller,
The Court in the Wright case also rejected claims made under the Equal Protection Clause of the Fourteenth Amendment. See infra, at 67.
We have made clear, however, that a court in formulating an apportionment plan as an exercise of its equity powers should, as a general rule, not permit multimember legislative districts. “[S] ingle-member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a ‘singular combination of unique factors' that justifies a different result. Mahan v. Howell,
The dissenting opinion of Mr. Justice Marshall reads the Court’s opinion in Fortson v. Dorsey,
The phrase “designedly or otherwise” in which this dissenting opinion places so much stock, was repeated, also in dictum, in Burns v. Richardson,
In Gaffney v. Cummings,
“State legislative districts may be-equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A dis-tricting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot,
See Wise v. Lipscomb,
This Court affirmed the judgment of the Court of Appeals in Zimmer v. McKeithen on grounds other than those relied on by that court and explicitly “without approval of the constitutional views expressed by the Court of Appeals.” East Carroll Parish School Bd. v. Marshall,
The only indication given by the District Court of an inference that there existed an invidious purpose was the following statement: “It is not a long step from the systematic exclusion of blacks from juries which is itself such an ‘unequal application of the law ... as to show intentional discrimination,’ Akins v. Texas,
What the District Court may have meant by this statement is uncertain. In any event the analogy to the racially exclusionary jury cases appears mistaken. Those cases typically have involved a consistent pattern of discrete official actions that demonstrated almost to a mathematical certainty that Negroes were being excluded from juries because of their race. See Castaneda v. Partida,
If the District Court meant by its statement that the existence of the at-large electoral system was, like the systematic exclusion of Negroes from juries, unexplainable on grounds other than race, its inference is contradicted by the history of the adoption of that system in Mobile. Alternatively, if the District Court meant that the state legislature may be presumed to havé “intended” that there would be no Negro Commissioners, simply because that was a foreseeable consequence of at-large voting, it applied an incorrect legal standard. “ ‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. ... It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely 'in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney,
The Court of Appeals expressed the view that the District Court’s finding of discrimination in light of the Zimmer criteria was “buttressed” by the fact that the Attorney General had interposed an objection under § 5 of the Voting Rights Act of 1965 to the state statute designating the functions of each Commissioner.
There have been only three Negro candidates for the City Commission, all in 1973. According to the District Court, the Negro candidates “were young, inexperienced, and mounted extremely limited campaigns” and received only “modest support from the black community. . . .”
Among the difficulties with the District Court’s view of the evidence was its failure to identify the state officials whose intent it considered relevant in assessing the invidiousness of Mobile’s system of government. To the extent that the inquiry should properly focus on the state legislature, see n. 21, infra, the actions of unrelated governmental officials would be, of course, of questionable relevance.
According to the District Court, voters in the city of Mobile are represented in the state legislature by three state senators, any one of whom can veto proposed Ioeal legislation under the existing courtesy rule. Likewise, a majority of Mobile’s 11-member House delegation can prevent a local bill from reaching the floor for debate. Unanimous' approval of a local measure by the city delegation, on the other hand, virtually assures passage.
There was evidence in this case that several proposals that would have
The dissenting opinion seeks to disclaim this description of its theory by suggesting that a claim of vote dilution may require, in. addition to proof of electoral defeat, some evidence of “historical and social factors” indicating that the group in question is without political influence. Post, at 111-112, n. 7, 122-124. Putting to the side the evident fact that these gauzy sociological considerations have no constitutional basis, it remains far from certain that they could, in any principled manner, exclude the claims of any discrete political group that happens, for whatever reason, to elect fewer of its candidates than arithmetic indicates it might. Indeed, the putative limits are bound to prove illusory if the express purpose informing their application would be, as the dissent assumes, to redress the “inequitable distribution of political influence.” Post, at 122.
The presumption of constitutional validity that underlies the settled mode of reviewing legislation disappears, of course, if the law under consideration creates classes that, in a constitutional sense, are inherently “suspect.” See McLaughlin v. Florida,
The basic fallacy in the dissenting opinion’s theory is illustrated by analogy to a defendant’s right under the Sixth and Fourteenth Amendments to a trial by a jury of his peers in a criminal case. See Duncan v. Louisiana,
The dissenting opinion also relies upon several decisions of this Court that have held constitutionally invalid various voter eligibility requirements: Dunn v. Blumstein,
It is difficult to perceive how the implications of the dissenting opin
Concurrence Opinion
concurring in the result.
Assuming that proof of intent is a prerequisite to appellees' prevailing on their constitutional claim of vote dilution, I am inclined to agree with Mr. Justice White that, in this case, “the findings of the District Court amply support an inference of purposeful discrimination,” post, at 103. I concur in the Court's judgment of reversal, however, because I believe that the relief afforded appellees by the District Court was not commensurate with the sound exercise of judicial discretion.
The Court of Appeals approved the remedial measures adopted by the District Court and did so essentially on three factors: (1) this Court’s preference for single-member dis-tricting in court-ordered legislative reapportionment, absent special circumstances, see, e. g., Connor v. Finch,
Contrary to the Court of Appeals, I believe that special circumstances are presented when a District Court “reapportions” a municipal government by altering its basic structures. See also the opinion of Mr. Justice Stewart, ante, at 70, and n. 15. See Chapman v. Meier,
Contrary to the District Court, I do not believe that, in order to remedy the unconstitutional vote dilution it found, it was necessary to convert Mobile’s city government to a mayor-council system. In my view, the District Court at least should have considered alternative remedial orders that would have maintained some of the basic elements of the commission system Mobile long ago had selected — joint exercise of legislative and executive power, and citywide representation. In the first place, I see no reason for the court to have separated legislative and executive power in the city of Mobile by creating, the office of mayor. In the second place, the court could have, and in my view should have, considered expanding the size of the Mobile City Commission and providing for the election of at least some commissioners at large. Alternative plans might have retained at-large elections for all commissioners while imposing district residency requirements that would have insured the election of a commission that was a cross section of all of Mobile’s neighborhoods, or a plurality-win system that would have provided the potential for the effective use of single-shot voting by black voters. See City of Rome v. United States, post, at 184, n. 19. In failing to consider such alternative plans, it appears to me that the District Court was perhaps overly concerned with the elimination of at-large elections per se, rather than with structuring an electoral system that provided an opportunity for black voters in Mobile to participate in the city’s government on an equal footing with whites.
In the past, this Court has emphasized that a district court’s remedial power “may be exercised only on the basis of a constitutional violation,” and that “the nature of the violation determines the scope of the remedy.” Swann v. Board of Education,
Concurrence Opinion
concurring in the judgment.
At issue in this case is the constitutionality of the city of Mobile’s commission form of government. Black citizens-in Mobile, who constitute a minority of that city’s registered voters, challenged the at-large nature of the elections for the three positions of City Commissioner, contending that the system “dilutes” their votes in violation of the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. While I agree with Mr. Justice Stewart that no violation of respondents’ constitutional rights has been demonstrated, my analysis of the issue proceeds along somewhat different lines.
In my view, there is a fundamental distinction between state action that inhibits an individual’s right to vote and state action that affects the political strength of various groups that compete for leadership in a democratically governed community. That distinction divides so-called vote dilution practices into two different categories “governed by entirely different constitutional considerations,” see Wright v. Rockefeller,
In the first category are practices such as poll taxes or literacy tests that deny individuals access to the ballot. Dis-tricting practices that make an individual’s vote in a heavily populated district less significant than an individual’s vote in a smaller district also belong in that category. See Baker v. Carr,
This case does not fit within the first category. The District Court found that black citizens in Mobile “register and vote without hindrance”
My conclusion that the Fifteenth Amendment applies to a case such as this rests on this Court’s opinion in Gomillion v. Lightfoot,
Neither Gomillion nor any other case decided by this Court establishes a constitutional right to proportional representation for racial minorities.
This conclusion follows, I believe, from the very nature of a gerrymander. By definition, gerrymandering involves drawing district boundaries (or using multimember districts or at-large elections) in order to maximize the voting strength of those loyal to the dominant political faction and to minimize the strength of those opposed to it.
A prediction based on a racial characteristic is not necessarily more reliable than a prediction based on some other group characteristic. Nor, since a legislator’s ultimate purpose in making the prediction is political in character, is it necessarily more invidious or benign than a prediction based on other group characteristics.
From the standpoint of the groups of voters that are affected by the line-drawing process, it is also important to recognize that it is the group’s interest in gaining or maintaining political power that is at stake. The mere fact that a number of citizens share a common ethnic, racial, or religious background does not create the need for protection against gerrymandering. It is only when their common interests are strong enough to be manifested in political action that the need arises. For the political strength of a group is not a function of its ethnic, racial, or religious composition; rather, it is a function of numbers — specifically the number of persons who will vote in the same way. In the long run there is no more certainty that individual members of racial groups will vote alike than that members of other identifiable groups will do so. And surely there is no national interest in creating an incentive to define political groups by racial characteristics.
My conclusion that the same standard should be applied to racial groups as is applied to other groups leads me also to
In its prior cases the Court has phrased the standard as being whether the districting practices in question “unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.” Whitcomb v. Chavis,
In my view, the proper standard is suggested by three characteristics of the gerrymander condemned in Comillion: (1) the 28-sided configuration was, in the Court’s word, “uncouth,” that is to say, it was manifestly not the product of a routine or a traditional political decision; (2) it had a significant adverse impact on a minority group; and (3) it was unsupported by any neutral justification and thus was either totally irrational or entirely motivated by a desire to curtail the political strength of the minority. These characteristics suggest that a proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker. See United States v. O’Brien, 391 U. S.
Conversely, I am also persuaded that a political decision that affects group voting rights may be valid even if it can be proved that irrational or invidious factors have played some part in its enactment or retention.
The decision to retain the commission form of government in Mobile, Ala., is such a decision. I am persuaded that some support for its retention comes, directly or indirectly, from members of the white majority who are motivated by a desire to make it more difficult for members of the black minority to serve in positions of responsibility in city government. I deplore that motivation and wish that neither it nor any other irrational prejudice played any part in our political processes. But I do not believe otherwise legitimate political choices can be invalidated simply because an irrational or invidious purpose played some part in the decisionmaking process.
As Mr. Justice Stewart points out, Mobile's basic election system is the same as that followed by literally thousands of municipalities and other governmental units throughout the Nation. Ante, at 60.
In Reynolds v. Sims, the Court quoted Mr. Justice Douglas’ statement that the right to vote “includes the right to have the vote counted at full value without dilution or discount . . . ,”
This finding distinguishes this case from White v. Regester,
“produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id., at 766.
The Court affirmed a judgment in favor of black and Mexican-American voters on the basis of the District Court’s express findings that black voters had been “ 'effectively excluded from participation in the Democratic primary selection process,’ ” id., at 767, and that . . cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation ha[d] operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.’ ” Id., at 768.
Thus, I disagree with Mr. Justice Stewart’s conclusion for the plurality that the Fifteenth Amendment applies only to practices that directly affect access to the ballot and hence is totally inapplicable to the case at bar. Ante, at 65. I also find it difficult to understand why, given this position, he reaches out to decide that discriminatory purpose must be demonstrated in a proper Fifteenth Amendment case. Ante, at 61-64.
“The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens.
“According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.”
I also disagree with Mr. Justice Marshall to the extent that he implies that the votes cast in an at-large election by members of a racial minority can never be anything more than “meaningless ballots.” I have no doubt that analyses of Presidential, senatorial and other statewide elections would demonstrate that ethnic and racial minorities have often had a critical impact on the choice of candidates and the outcome of elections. There is no reason to believe that the same political forces cannot operate in smaller election districts regardless of the depth of conviction or emotion that may separate the partisans of different points of view.
And this is true regardless of the apparent need of a particular group for proportional representation because of its historically disadvantaged position in the community. See Cousins v. City Council of Chicago,
This view is consistent with the Court’s Fourteenth Amendment cases in which it has indicated that attacks on apportionment schemes on racial, political, or economic grounds should all be judged by the same constitutional standard. See, e. g., Whitcomb v. Chavis,
Gerrymanders may also be used to preserve the current balance of power between political parties, see, e. g., Gaffney v. Cummings,
Thus, for example, there is little qualitative difference between the motivation behind a religious gerrymander designed to gain votes on the abortion issue and a racial gerrymander designed to gain votes on an economic issue.
As Mr. Justice Douglas wrote in his dissent in Wright v. Rockefeller:
“Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition — ‘of the people, by the people, for the people.’ Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B*89 must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders,372 U. S. 368 , 379. The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines.
“When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.”376 U. S., at 66-67 .
See also my dissent in Cousins, supra:
“In my opinion an interpretation of the Constitution which afforded one kind of political protection to blacks and another kind to members of other identifiable groups would itself be invidious. Respect for the citizenry in the black community compels acceptance of the fact that in the long run there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group. The probability of parallel voting fluctuates as the blend of political issues affecting the outcome of an election changes from time to time to emphasize one issue, or a few, rather than others, as dominant. The facts that a political group has its own history, has suffered its own special injustices, and has its own congeries of special political interests, do not make one such group different from any other in the eyes of the law. The members of each go to the polls with equal dignity and with an equal right to be protected from invidious discrimination.”466 F. 2d, at 852 .
In O’Brien the Court described Gomillion as standing “not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional.”
“It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.” Washington v. Davis,
For example, if 55% of the voters in an area comprising two districts belong to group A, their interests in electing two representatives would be best served by evenly dividing the voters in two districts, but their inter
I emphasize this point because in my opinion there is a significant difference between a statewide legislative plan that “happens” to use multimember districts only in those areas where they disadvantage discrete minority groups and the use of a generally acceptable municipal form of government that involves the election of commissioners by the
Rejection of Mr. Justice Frankfurter’s views in the specific controversy presented by Baker v. Carr,
Dissenting Opinion
dissenting.
In White v. Regester,
I
Prior to our decision in White v. Regester, we upheld a number of multimember districting schemes against constitutional challenges, but we consistently recognized that such apportionment schemes could constitute invidious discrimination “where the circumstances of a particular case may 'operate to minimize or cancel out the voting strength of racial or political elements of the voting population.’ ” Whitcomb v. Chavis,
Relying on this principle, in White v. Regester we unanimously upheld a District Court’s conclusion that the use of multimember districts in Dallas and Bexar Counties in Texas violated the Equal Protection Clause in the face of findings that they excluded Negroes and Mexican-Americans from effective participation in the political processes. With respect to the exclusion of Negroes in Dallas County, “the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic
With respect to the exclusion of Mexican-Americans from the political process in Bexar County, the District Court referred to the continuing effects of a long history of invidious discrimination against Mexican-Americans in education, employment, economics, health, politics, and other fields. Id., at 768. The impact of this discrimination, coupled with a cultural and language barrier, made Mexican-American participation in the political life of Bexar County extremely difficult. Only five Mexican-Americans had represented Bexar County in the Texas Legislature since 1880, and the county’s legislative delegation “was insufficiently responsive to Mexican-American interests.” Id., at 769. “Based on the totality of the circumstances, the District Court evolved its
II
In the instant case the District Court and the Court of Appeals faithfully applied the principles of White v. Regester in assessing whether the maintenance of a system of at-large elections for the selection of Mobile City Commissioners denied Mobile Negroes their Fourteenth and Fifteenth Amendment rights. Scrupulously adhering to our admonition that “[t]he plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question,” id., at 766, the District Court conducted a detailed factual inquiry into the openness of the candidate selection process to blacks. The court noted that “Mobile blacks were subjected to massive official and private racial discrimination until the Voting Rights Act of 1965” and that “[t]he pervasive effects of past discrimination still substantially affecft] black political participation.”
The District Court also reviewed extensive evidence that the City Commissioners elected under the at-large system have not been responsive to the needs of the Negro community. The court found that city officials have been unresponsive to the interests of Mobile Negroes in municipal employment, appointments to boards and committees, and the provision of municipal services in part because of “the political fear of a white backlash vote when black citizens’ needs are at stake.” Id., at 392. The court also found that there is no clear-cut state policy preference for at-large elections and that past dis
After concluding its extensive findings of fact, the District Court addressed the question of the effect of Washington v. Davis,
The Court of Appeals affirmed the District Court’s judgment in one of four consolidated “dilution” cases decided on the same day. Bolden v. Mobile,
In its decision in the instant case the Court of Appeals reviewed the District Court’s findings of fact, found them not to be clearly erroneous and held that they “compel the inference that [Mobile’s at-large] system has been maintained with the purpose of diluting the black vote, thus supplying the element of intent necessary to establish a violation of the fourteenth amendment, Village of Arlington Heights v. Metropolitan Housing Development Corp.,
Ill
A plurality of the Court today agrees with the courts below that maintenance of Mobile’s at-large system for election of City Commissioners violates the Fourteenth and Fifteenth Amendments only if it is motivated by a racially discriminatory purpose. The plurality also apparently reaffirms the vitality of White v. Regester and Whitcomb v. Chavis, which established the standards for determining whether at-large election systems are unconstitutionally discriminatory. The plurality nonetheless casts aside the meticulous application of the principles of these cases by both the District Court and the Court of Appeals by concluding that the evidence they relied upon “fell far short of showing” purposeful discrimination.
The plurality erroneously suggests that the District Court erred by considering the factors articulated by the Court of Appeals in Zimmer v. McKeithen,
Although the plurality does acknowledge that “the presence of the indicia relied on in Zimmer may afford some evidence
In conducting “an intensely local appraisal of the design and impact” of the at-large election scheme, White v. Regester, supra, at 769, the District Court’s decision was fully consistent with our recognition in Washington v. Davis,
Because I believe that the findings of the District Court amply support an inference of purposeful discrimination in violation of the Fourteenth and Fifteenth Amendments, I respectfully dissent.
Dissenting Opinion
dissenting
The American ideal of political equality, conceived in the earliest days of our colonial existence and fostered by the
The District Court in both of these cases found that the challenged multimember districting schemes unconstitutionally diluted the Negro vote. These factual findings were upheld by the Court of Appeals, and the plurality does not question them. Instead, the plurality concludes that districting schemes do not violate the Equal Protection Clause unless it is proved that they were enacted or maintained for the purpose of minimizing or canceling out the voting potential of a racial minority. The plurality would require plaintiffs in vote-dilution cases to meet the stringent burden of establishing discriminatory intent within the meaning of Washington v. Davis,
I
The Court does not dispute the proposition that multimem-ber districting can have the effect of submerging electoral minorities and overrepresenting electoral majorities.
A
In Fortson v. Dorsey,
“It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Id., at 439 (emphasis added).
We reiterated these words in Burns v. Richardson,
“[T]he demonstration that a particular multi-member scheme effects an invidious result must appear from evidence in the record. . . . That demonstration was not made here. In relying on conjecture as to the effects of multi-member districting rather than demonstrated fact, the court acted in a manner more appropriate to the body responsible for drawing up the districting plan. Speculations do not supply evidence that the multi-member dis-tricting was designed to have or had the invidious effect necessary to a judgment of the unconstitutionality of the districting.” Id., at 88-89 (emphasis added) (footnote omitted).
It could not be plainer that the Court in Burns considered
In Whitcomb v. Chavis,
More recently, in White v. Regester,
“it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id., at 765-766.
We held that the three-judge District Court had properly applied this standard in invalidating the multimember dis-tricting schemes in the Texas counties of Dallas and Bexar. The District Court had determined that the characteristics of the challenged electoral systems — multimember districts, a majority-vote requirement for nomination in a primary election, and a rule mandating that a candidate running for a position in a multimember district must run for a specified “place” on the ticket — though “neither in themselves improper nor invidious,” reduced the electoral influence of Negroes and Mexican-Americans. Id., at 766.
B
The plurality fails to apply the discriminatory-effect standard of White v. Regester because that approach conflicts with what the plurality takes to be an elementary principle of law. “[O]nly if there is purposeful discrimination,” announces the
We have long recognized that under the Equal Protection Clause classifications based on race are “constitutionally suspect,” Bolling v. Sharpe,
Under the Equal Protection Clause, if a classification “impinges upon a fundamental right explicitly or implicitly protected by the Constitution, . . . strict judicial scrutiny” is required, San Antonio Independent School Dist. v. Rodriguez,
Reynolds v. Sims and its progeny
The approach to vote dilution adopted in Fortson plainly consisted of a fundamental-rights analysis. If the Court had believed that the equal protection problem with alleged vote dilution was one of racial discrimination and not abridgment of the right to vote, it would not have accorded standing to the plaintiffs, who were simply registered voters of Georgia alleging that the state apportionment plan, as a theoretical matter, diluted their voting strength because of where they lived. To the contrary, we did not question their standing, and held against them solely because we foupd unpersuasive their claim on the merits. The Court did not reach this result by inadvertence; rather, we explicitly recognized that we had adopted a fundamental-rights approach when we stated that the Equal Protection Clause protected the voting strength of political as well as racial groups.
Until today, this Court had never deviated from this principle. We reiterated that our vote-dilution doctrine protects political groups in addition to racial groups in Burns v. Richardson,
Our vote-dilution decisions, then, involve the fundamental-interest branch, rather than the antidiscrimination branch, of our jurisprudence under the Equal Protection Clause. They recognize a substantive constitutional right to participate on an equal basis in the electoral process that cannot be denied or diminished for any reason, racial or otherwise, lacking quite substantial justification. They are premised on a rationale wholly apart from that underlying Washington v. Davis,
The plurality’s response is that my approach amounts to nothing less than a constitutional requirement of proportional representation for groups. See ante, at 75-80. That assertion amounts to nothing more than a red herring: I explicitly reject the notion that the Constitution contains any such requirement. See n. 7, supra. The constitutional protection against vote dilution found in our prior cases does not extend to those situations in which a group has merely failed to elect representatives in proportion to its share of the population. To prove unconstitutional vote dilution, the group is also required to carry the far more onerous burden of demonstrating that it has been effectively fenced out of the political process. See ibid. Typical of the plurality’s mischaracteri-zation of my position is its assertion that I would provide protection against vote dilution for “every 'political group,’ or at least every such group that is in the minority.” Ante, at 75. The vote-dilution doctrine can logically apply only to groups whose electoral discreteness and insularity allow dominant political factions to ignore them. See nn. 7 and 19, supra. In short, the distinction between a requirement of proportional representation and the discriminatory-effect test I espouse is by no means a difficult one, and it is hard for me to understand why the plurality insists on ignoring it.
The plaintiffs in No. 77-1844 proved that no Negro had ever been elected to the Mobile City Commission, despite the fact that Negroes constitute about one-third of the electorate, and that the persistence of severe racial bloc voting made it highly
A requirement of proportional representation would indeed transform this Court into a “super-legislature,” ante, at 76, and would create the risk that some groups would receive an undeserved windfall of political influence. In contrast, the protection against vote dilution recognized by our prior cases serves as a minimally intrusive guarantee of political survival for a discrete political minority that is effectively locked out of governmental decisionmaking processes.
Section 1 of the Fifteenth Amendment provides:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Today the plurality gives short shrift to the argument that proof of discriminatory intent is not a necessary condition to relief under this Amendment. See ante, at 61-65:
A
The Fifteenth Amendment does not confer an absolute right to vote. See ante, at 62. By providing that the right to vote cannot be discriminatorily “denied or abridged,” however, the Amendment assuredly strikes down the diminution as well as the outright denial of the exercise of the franchise. An interpretation holding that the Amendment reaches only complete abrogation of the vote would render the Amendment essentially useless, since it is no difficult task to imagine schemes in which the Negro’s marking of the ballot is a meaningless exercise.
The Court has long understood that the right to vote encompasses protection against vote dilution. “[T]he right to have one’s vote counted” is of the same importance as “the right to put a ballot in a box.” United States v. Mosley,
Wright v. Rockefeller,
“The Fifteenth Amendment prohibits a State from denying or abridging a Negro's right to vote. The Nineteenth Amendment does the same for women. If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable. See Terry v. Adams,345 U. S. 461 . . . . Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.
“The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Séventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.” Gray v. Sanders,372 U. S., at 379, 381 .
The plurality’s suggestion that the Fifteenth Amendment reaches only outright denial of the ballot is wholly inconsistent not only with our prior decisions, but also with the gloss the plurality would place upon the Fourteenth Amendment’s protection against vote dilution. As I explained in Part I, supra, I strongly disagree with the plurality's conclusion that our
An interpretation of the Fifteenth Amendment limiting its prohibitions to the outright denial of the ballot would convert the words of the Amendment into language illusory in symbol and hollow in substance. Surely today’s decision should not be read as endorsing that interpretation.
B
The plurality concludes that our prior decisions establish the principle that proof of discriminatory intent is a necessary element of a Fifteenth Amendment claim.
1
The plurality cites Guinn v. United States,
In upholding the use of a literacy test for voters in Lassiter v. Northampton Election Bd., supra, the Court apparently concluded that the plaintiff had failed to prove either discriminatory purpose or effect. Gomillion v. Lightfoot, supra, can be read as turning on proof of discriminatory motive, but the Court also stressed that the challenged redrawing of municipal boundaries had the “essential inevitable effect” of removing Negro voters from the city,
The plurality ignores cases suggesting that discriminatory purpose is not necessary to support a Fifteenth Amendment claim. In Terry v. Adams,
Ill holding that racial discrimination claims under the Equal Protection Clause must be supported by proof of discriminatory intent, the Court in Washington v. Davis, supra, signaled some movement away from the doctrine that such proof is irrelevant to constitutional adjudication. Although the Court,
These vacillations in our approach to the relevance of discriminatory purpose belie the plurality’s determination that our prior decisions require such proof to support Fifteenth Amendment claims. To the contrary, the Court today is in
2
The Court in Washington v. Davis required a showing of discriminatory purpose to support racial discrimination claims largely because it feared that a standard based solely on disproportionate impact would unduly interfere with the far-ranging governmental distribution of constitutional gratuities.
Such judicial deference to official decisionmaking has no place under the Fifteenth Amendment. Section 1 of that Amendment differs from the Fourteenth Amendment’s prohibition on racial discrimination in two crucial respects: it explicitly recognizes the right to vote free of hindrances related to race, and it sweeps no further. In my view, these distinctions justify the conclusion that proof of racially discriminatory impact should be sufficient to support a claim under the Fifteenth Amendment. The right to vote is of such fundamental importance in the constitutional scheme that the Fifteenth Amendment’s command that it shall not be “abridged” on account of race must be interpreted as providing that the votes of citizens of all races shall be of substantially equal weight. Furthermore, a disproportionate-impact test under the Fifteenth Amendment would not lead to constant judicial intrusion into the process of official decisionmak-ing. Rather, the standard would reach only those decisions having a discriminatory effect upon the minority’s vote. The Fifteenth Amendment cannot tolerate that kind of decision, even if made in good faith, because the Amendment grants racial minorities the full enjoyment of the right to vote, not simply protection against the unfairness of intentional vote dilution along racial lines.
In addition, it is beyond dispute that a standard based solely upon the motives of official decisionmakers creates significant problems of proof for plaintiffs and forces the inquiring court to undertake an unguided, tortuous look into the minds of officials in the hope of guessing why certain policies were adopted and others rejected. See Palmer v. Thomp
I continue to believe, then, that under the Fifteenth Amendment an “[e] valuation of the purpose of a legislative enactment is just too ambiguous a task to be the sole tool of constitutional analysis. . . . [A] demonstration of effect ordinarily should suffice. If, of course, purpose may conclusively be shown, it too should be sufficient to demonstrate a statute’s unconstitutionality.” Beer v. United States,
If it is assumed that proof of discriminatory intent is necessary to support the vote-dilution claims in these cases, the question becomes what evidence will satisfy this requirement.
The plurality assumes, without any analysis, that these cases are appropriate for the application of the rigid test developed in Personnel Administrator of Mass. v. Feeney,
I would apply the common-law foreseeability presumption to the present cases. The plaintiffs surely proved that maintenance of the challenged multimember districting would have the foreseeable effect of perpetuating the submerged electoral influence of Negroes, and that this discriminatory effect could be corrected by implementation of a single-member districting plan.
This approach recognizes that
“[frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.” Washington v. Davis, supra, at 253 (Stevens, J., concurring).
Furthermore, if proof of discriminatory purpose is to be required in these cases, this standard would comport with my view that the degree to which the government must justify a decision depends upon the importance of the interests infringed by it. See San Antonio Independent School Dist. v. Rodriguez,
The American approach to government is premised on the theory that, when citizens have the unfettered right to vote,
It is time to realize that manipulating doctrines and drawing improper distinctions under the Fourteenth and Fifteenth Amendments, as well as under Congress’ remedial legislation enforcing those Amendments, make this Court an accessory to the perpetuation of racial discrimination. The plurality’s requirement of proof of intentional discrimination, so inappropriate in today’s cases, may represent an attempt to bury the legitimate concerns of the minority beneath the soil of a doctrine almost as impermeable as it is specious. If so, the superficial tranquility created by such measures can be but short-lived. If this Court refuses to honor our long-recognized principle that the Constitution “nullifies sophisticated as well as simple-minded modes of discrimination,” Lane v. Wilson,
[This opinion applies also to No. 78-357, Williams et al. v. Brown et al., post, p. 236.]
U. S. Const., Arndts. 15, 17,19, 23, 24, 26.
I agree with the plurality, see ante, at 60-61, that the prohibition on denial or infringement of the right to vote contained in § 2 of the Voting Rights Act, 42 U. S. C. § 1973, contains the same standard as the Fifteenth Amendment. I disagree with the plurality’s construction of that Amendment, however. See Part II, infra.
The Court does not quarrel with the generalization that in many instances an electoral minority will fare worse under multimember districting than under single-member districting. Multimember districting greatly enhances the opportunity of the majority political faction to elect all representatives of the district. In contrast, if the multimember district is divided into several single-member districts, an electoral minority will have a better chance to elect a candidate of its choice, or at least to exert greater political influence. It is obvious that the greater the degree to which the electoral minority is homogeneous and insular and the greater the degree that bloc voting occurs along majority-minority lines, the greater will be the extent to which the minority’s voting power is diluted by multi-member districting. See E. Banfield & J. Wilson, City Politics 91-96, 303-308 (1963); R. Dixon, Jr., Democratic Representation 12, 476-484, 503-527 (1968); Bonapfel, Minority Challenges to At-Large Elections: The Dilution Problem, 10 Ga. L. Rev. 353, 358-360 (1976); Derfner, Racial Discrimination and the Right to Vote, 26 Vand. L. Rev. 523, 553-555 (1973); Comment, Effective Representation and Multimember Districts, 68 Mich. L. Rev. 1577, 1577-1579 (1970). Recent empirical studies have documented the validity of this generalization. See Berry & Dye, The Discriminatory Effects of At-Largé Elections, 7 Fla. St. U. L. Rev. 85, 113-122 (1979); Jones, The Impact of Local Election Systems on Black
The electoral schemes in these cases involve majority-vote, numbered-post, and staggered-term requirements. See Bolden v. City of Mobile,
The plurality notes that at-large elections were instituted in cities as a reform measure to correct corruption and inefficiency in municipal government, and suggests that it “may be a rash assumption” to apply vote-dilu
Furthermore, though municipalities must be accorded some discretion in arranging their affairs, see Abate v. Mundt, supra, there is all the more reason to scrutinize assertions that municipal, rather than state, multi-member districting dilutes the vote of an electoral minority:
“In statewide elections, it is possible that a large minority group in one multi-member district will be unable to elect any legislators, while in another multi-member district where the same group is a slight majority, they will elect the entire slate of legislators. Thus, the multi-member electoral system may hinder a group in one district but prove an advantage in another. In at-large elections in cities this is not possible. There is no way to balance out the discrimination against a particular minority group because the entire city is one huge election district. The minority’s loss is absolute.” Berry & Dye, supra n. 3, at 87.
That at-large elections were instituted as part of a “reform” movement in no way ameliorates these harsh effects. Moreover, in some instances the efficiency and breadth of perspective supposedly resulting from a reform structure of municipal government are achieved at a high cost. In a white-majority city in which severe racial bloc voting is common, the citywide view allegedly inculcated in city commissioners by at-large elections need not extend beyond the white community, and the efficiency of the commission form of government can be achieved simply by ignoring the concerns of the powerless minority.
It would be a mistake, then, to conclude that municipal at-large elections provide an inherently superior representational scheme. See also n. 3, supra; Chapman v. Meier,
As the plurality notes, see ante, at 66, we indicated in Whitcomb v. Chavis,
Abate v. Mundt, supra, decided the same day as Whitcomb, provides further evidence that Whitcomb did not alter the discriminatory-effects standard developed in earlier cases. In Abate, supra, at 184, n. 2, we rejected the argument that a multimember districting scheme had a vote-dilutive effect because “[p)etitioners . . . have not shown that these multi-member districts, by themselves, operate to impair the voting strength of particular racial or political elements , , see Burns v. Richardson,
See r. 3, supra.
White v. Regester, makes clear the distinction between the concepts of vote dilution and proportional representation. We have held that, in order to prove an allegation of vote dilution, the plaintiffs must show more than simply that they have been unable to elect candidates of their choice. See
Unconstitutional vote dilution occurs only when a discrete political minority whose voting strength is diminished by a districting scheme proves that historical and social factors render it largely incapable of effectively utilizing alternative avenues of influencing public policy. See n. 19, injra. In these circumstances, the only means of breaking down the barriers encasing the political arena is to structure the electoral dis-tricting so that the minority has a fair opportunity to elect candidates of its choice.
The test for unconstitutional vote dilution, then, looks only to the discriminatory effects of the combination of an electoral structure and historical and social factors. At the same time, it requires electoral minorities to prove far more than mere lack of success at the polls.
We have also spoken of dilution of voting power in cases arising under the Voting Rights Act of 1965, 42 U. S. C. § 1973 et seq. Under § 5 of
The plurality’s approach is also inconsistent with our statement in Dallas County v. Reese,
See Shapiro v. Thompson,
As the present cases illustrate, a requirement of proof of discriminatory intent seriously jeopardizes the free exercise of the fundamental right to vote. Although the right to vote is indistinguishable for present purposes from the other fundamental rights our cases have recognized, see n. 9, supra, surely the plurality would not require proof of discrimina^ tory purpose in those cases. The plurality fails to articulate why the right to vote should receive such singular treatment. Furthermore, the plurality refuses to recognize the disutility of requiring proof of discriminatory purpose in fundamental rights cases. For example, it would make no sense to require such a showing when the question is whether a state statute regulating abortion violates the right of personal choice recognized in Roe v. Wade, supra. The only logical inquiry is whether, regardless of the legislature’s motive, the statute has the effect of infringing that right. See, e. g., Planned Parenthood of Central Missouri v. Danforth,
Judge Wisdom of the Court of Appeals below recognized this distinction in a companion case, see Nevett v. Sides,
Washington v. Davis,
We have not, however, held that the Fourteenth Amendment contains an absolute right to vote. As we explained in Dunn v. Blumstein,
“In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. [Citing cases.] This ‘equal right to vote’ ... is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. . . . But, as a general matter, ‘before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must' meet close constitutional scrutiny.’ ” Id., at 336 (quoting Evans v. Cornman,398 U. S. 419 , 426, 422 (1970)).
Avery v. Midland County,
In attempting to limit Reynolds v. Sims to its facts, see ante, at 77-79, the plurality confuses the nature of the constitutional right recognized in that decision with the means by which that right can be violated. Reynolds held that under the Equal Protection Clause each citizen must
Proof of discriminatory purpose has been equally unnecessary in our decisions assessing whether various impediments to electoral participation are inconsistent with the fundamental interest in voting. In the seminal case, Harper v. Virginia Bd. of Elections,
To be sure, we have approved some limitations on the right to vote. Compare, e. g., Salyer Land Co. v. Tulare Water District,
The approach adopted in this line of cases has been synthesized with the one-person, one-vote doctrine of Reynolds v. Sims in the following fashion: “It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State’s population.” San Antonio Independent School Dist. v. Rodriguez,
See Dorsey v. Fortson,
Specifically, the plaintiffs contended that countywide voting in the multidistrict counties could, as a matter of mathematics, result in the nullification of the unanimous choice of the voters of one district. Fortson v. Dorsey,
The same is true of our most recent case discussing vote dilution, Wise v. Lipscomb,
In contrast to a racial group, however, a political group will bear a rather substantial burden of showing that it is sufficiently discrete to suffer vote dilution. See Dallas County v. Reese,
The dispute in Washington v. Davis concerned alleged racial discrimination in public employment, an interest to which no one has a constitutional right, see n. 11, supra. In that decision, the Court held only that “the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.”
Professor Ely has recognized this distinction:
“The danger I see is . . . that the Court, in its newfound enthusiasm for motivation analysis, will seek to export it to fields where it has no business. It therefore cannot be emphasized too strongly that analysis of motivation is appropriate only to claims of improper discrimination in the distribution of goods that are constitutionally gratuitous (that is, benefits to which people are not entitled as a matter of substantive constitutional right).... However, where what is denied is something to which the complainant has a substantive constitutional right — either because it is granted by the terms of the Constitution, or because it is essential to the effective functioning of a democratic government — the reasons it was denied are irrelevant. It may become important in court what justifications counsel for the state can articulate in support of its denial or nonprovision, but the reasons that actually inspired the denial never can: To have a right to something is to have a claim on it irrespective of why it is denied. It would be a tragedy of the first order were the Court to expand its burgeoning awareness of the relevance of motivation into the thoroughly mistaken notion that a denial of a constitutional right does not count as such unless it was intentional.” Ely, The Centrality and Limits of Motivation Anal
It is at this point that my view most diverges from the position expressed by my Brother Stevens, ante, p. 83. He would strictly scrutinize
The foregoing disposes of any contention that, merely by citing Wright v. Rockefeller,
Wright v. Rockefeller, then, treated proof of discriminatory purpose as a sufficient condition to trigger strict scrutiny of a districting scheme, but had no occasion to consider whether such proof was necessary to invoke that standard. Its citations in Washington v. Davis, supra, and Arlington
In addition, any argument that, merely by citing Wright v. Rockefeller, the Court in Washington v. Davis and Arlington Heights intended to apply the discriminatory-intent requirement to vote-dilution claims is premised on two unpalatable assumptions. First, because the discussion of Wright v. Rockefeller was unnecessary to the resolution of the issues in both of those decisions, the argument assumes that the Court in both cases decided important issues in brief dicta. Second, the argument assumes that the Court twice intended covertly to overrule the discriminatory-effects test applied in White v. Regester,
It is important to recognize that only the four Members of the plurality are committed to this view. In addition to my Brother Brennan and myself, my Brother Stevens expressly states that proof of discriminatory effect can be a sufficient condition to support the invalidation of dis-tricting, see ante, at 90. My Brother White finds the proof of discriminatory purpose in these cases sufficient to support the decisions of the Courts of Appeals, and accordingly he does not reach the issue whether proof of discriminatory impact, standing alone, would suffice under the Fifteenth Amendment. My Brother Blackmun also expresses no view on this issue, since he too finds the proof of discriminatory intent sufficient to support the findings of violations of the Constitution.
The plurality states that “[h]aving found that Negroes in Mobile 'register and vote without hindrance,’ the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case.” Ante, at 65.
Indeed, five Members of the Court decline the opportunity to ascribe to this view. In addition to my Brother Brennan and myself, my Brother Stevens expressly states that the Fifteenth Amendment protects against diminution as well as denial of the ballot, see ante, at 84, and n. 3. The dissenting opinion of my Brother White and the separate opinion of my Brother Blackmun indicate that they share this view.
The plurality does not attempt to support this proposition by relying on the history surrounding the adoption of the Fifteenth Amendment. I agree that we should resolve the issue of the relevancy of proof of discriminatory purpose and effect by examining our prior decisions and by considering the appropriateness of alternative standards in light of contemporary circumstances. That was, of course, the approach used in Washington v. Davis,
See n. 23, supra.
Rice v. Elmore,
See rm. 20, 21, supra, and accompanying text.
The Court stated:
“A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”426 U. S., at 248 .
See n. 20, supra.
Even if a municipal policy is shown to dilute the right to vote, however, the policy will not be struck down if the city shows that it serves highly important local interests and is closely tailored to effectuate only those interests. See Dunn v. Blumstein,
In my view, the standard of White v. Regester,
The statutes providing for at-large election of the members of the two governmental bodies involved in these cases, see n. 33, supra, have been in effect since the days when Mobile Negroes were totally disenfranchised by the Alabama Constitution of 1901. The District Court in both cases found, therefore, that the at-large schemes could not have been adopted for discriminatory purposes. Bolden v. City of Mobile,
As the dissenting opinion of my Brother White demonstrates, however, the facts of these cases compel a finding of unconstitutional vote dilution even under the plurality’s standard.
Indeed, the District Court in the present cases concluded that the evidence supported the plaintiffs' position that unconstitutional vote dilution was the natural and foreseeable consequence of the maintenance of the challenged multimember districting. Brown v. Moore,
Mr. Justice Stevens acknowledges that both discriminatory intent and discriminatory effect are present in No. 77-1844. See ante, at 92-94. Nonetheless, he finds no constitutional violation, apparently because he believes that the electoral structure of Mobile conforms to a commonly used scheme, the discriminatory impact is in his view not extraordinary, and the structure is supported by sufficient noninvidious justifications so that it is neither wholly irrational nor entirely motivated by discriminatory animus. To him, racially motivated decisions in this setting are an inherent part of the political process and do not involve invidious discrimination.
The facts of the' present cases, however, indicate that in Mobile considerations of race are far more powerful and pernicious than are considerations of other divisive aspects of the electorate. See supra, at 122-123. In Mobile, as elsewhere, “the experience of Negroes . . . has been different
Brest, The Supreme Court, 1975 Term — Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 7 (1976). See also Note, Racial Vote Dilution in Multimember Districts: The Constitutional Standard After Washington v. Davis, 76 Mich. L. Rev. 694, 716-719 (1978).
The plurality, ante, at 74r-75, n. 21, indicates that on remand the lower courts are to examine the evidence in these cases under the discriminatory-intent standard of Personnel Administrator of Mass. v. Feeney,
Finally, it is important not to confuse the differing views the plurality and I have on the elements of proving unconstitutional vote dilution. The plurality concludes that proof of intentional discrimination, as defined in Feeney, supra, is necessary to support such a claim. The plurality finds this requirement consistent with the statement in White v. Regester,
The plurality’s approach should be satisfied, then, by proof that an electoral scheme enacted with a discriminatory purpose effected a retrogression in the minority’s voting power. Cf. Beer v. United States,
The plurality does not address the question whether proof of discriminatory effect is necessary to support a vote-dilution claim. It is clear from the above, however, that if the Court at some point creates such a requirement, it would be satisfied by proof of mere disproportionate impact. Such a requirement would be far less stringent than the burden of proof re
Dissenting Opinion
dissenting.
I dissent because I agree with Mr. Justice Marshall that proof of discriminatory impact is sufficient in these cases. I also dissent because, even accepting the plurality’s premise that discriminatory purpose must be shown, I agree with Mr. Justice Marshall and Mr. Justice White that the appellees have clearly met that burden.
[This opinion applies also to No. 78-357, Williams et al. v. Brown et al., post, p. 236.]