*1 OF BOARD GEORGIA, COUNTY, DOUGHERTY al. v. WHITE EDUCATION et 28, 1978 November 2-3, 1978 Decided October Argued 77-120. No. BreNNAN, Court, which opinion J., delivered MARSHALL, J., con- filed JJ., joined. SteveNS, SteveNS, BlacicmuN, White, statement, dissenting J., filed post, p. 47. Stewart, curring statement, post, p. 47. Powell, J., filed a dissenting opinion, in which Burger, C. J., and RehNquist, J., joined, post, p. 47. *2 W.
Jesse Walters argued the cause and filed a brief for appellants.
John R. Myer argued the cause for appellee. With him on the brief were Robert A. Murphy, William E. Caldwell, and Norman J. Chachkin.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney Gen- eral Days, and Brian K. Landsberg.
Mr. Justice Marshall delivered the opinion of the Court. Under § 5 of the Voting Rights Act of 1965,1all States and 1 79 Stat. 439, as amended, 42 U. S. C. 1973c. provides Section 5 part: “Whenever a political State or subdivision with respect to which the prohibitions set forth (a) of the [§ upon based Act] determinations made under the first sentence of (b)4 of the [§ are in effect Act] shall enact or seek to administer qualification prerequisite or voting, or standard, practice, procedure or with respect to voting different from that in force or effect on November 1964, . . . such State or may subdivision institute an action in the United States District Court for the District of Columbia for a declaratory judgment that qualifica- such tion, prerequisite, standard, practice, procedure or does not have the purpose and will not have the effect of denying or abridging right vote on account of race or color, . . . and unless and until the court enters such judgment person no shall be denied right to vote for failure to comply with such qualification, prerequisite, standard, practice, pro- or cedure: Provided, That such qualification, prerequisite, standard, practice, procedure or may be enforced without such proceeding if the qualification, prerequisite, standard, practice, procedure or has been submitted 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 sixty within days after such submission, upon or good cause shown, to facilitate an expedited approval sixty within days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. . . .” submit must Act2 4 of by § covered subdivisions by affecting voting, change
any proposed District for the Court the District Attorney county whether appeal in this At issue Columbia. of a approval seek must in a covered of education board absence leaves unpaid to take employees requiring rule of this Resolution office. for elective campaign they while whether a first, inquiries: related two necessitates question “standard, ais candidates employee leave governing rule within voting” procedure practice, whether second, Act; and Voting Rights meaning §of within subdivision” “political ais board county school the Act. purview
I Negro, Appellee, dispute. in not are in case this The facts Personnel of Student Coordinator as Assistant employed of Education County Dougherty by appellant Services candidacy for his announced he May 1972, (Board). month than a Less Representatives. House Georgia 58 without Rule adopted the Board 1972, 12, on June later, provides: Rule approval. prior federal seeking school employee Any OFFICE. “POLITICAL political elective candidate becomes who system without absence, leave take a required to be office, will qualifying upon becoming effective leave such pay, duration for the continuing and office elective for such of service period during activity, and such if elected thereto.” office, in such pri- Democratic for the candidate as a qualified Appellee to by take compelled Rule and was 1972, mary June in the defeat After his pay. without of absence a leave Georgia has been C. 1973b. amended, 42 U. S. Stat. Reg. 9897 Fed. pursuant to jurisdiction §4. a covered designated (1965).
August appellee primary, was Again reinstated. in June qualified he as a candidate for the House and was forced to take leave. He was successful in both August primary and the general November Accordingly, election. his leave through continued Appellee mid-November 1974. took a third leave absence June 1976, qualified when he run for re-election. When it clear in September became that he would unopposed be in the November 1976 election, appellee was reinstated.3 As a consequence of those manda- leaves, tory appellee lost pay in the amount of $2,810 1972, $4,780 in 1974, $3,750 in 1976.
In June 1976, appellee this action in filed the Middle Dis- trict of Georgia alleging that Rule 58 was prac- a “standard, tice, procedure with respect voting” adopted a covered entity and subject therefore to the requirements of § 5 of the Act.4 Appellee averred that he was the first Negro in recent memory, perhaps since Reconstruction, run for the Georgia Assembly Dougherty from County. The Board did not contest this fact, and further acknowledged that it was of no aware individual other than appellee who run public had office employee while an the Dougherty County Board of Education.
On cross motions for summary judgment, the three-judge District Court held that Rule should been have submitted for federal approval before implementation. *4 431 Supp. 919 F.
3The Solicitor General and appellants counsel appellee advise us that was also on unpaid during leave participation his in the annual 214- sittings month the Georgia Assembly of in 1975, 1976, 1977, and General 1978. Brief for United States as Amicus Ip Curiae 4 n. of Tr. Oral Arg. Appellee 6. did application not challenge this of Rule 58 below. We therefore not do preclearance consider whether required is for a policy governing mandatory during leaves the interval which an em ployee actually legislative responsibilities. absent due to 4 predicated Jurisdiction was on 42 U. S. C. 1973c, 2284, 28 U. C. § S. and 28 U. S. C. 1343. See Allen v. State Elections, Board 393 U. S. of 544, (1969). 554-563 36 correctly declined to decide ruling, In court
(1977). so or the Dis- Attorney question the ultimate on submission of the face court would of Columbia trict change fact 5—whether the under preclearance Rule for Mat- Perkins v. effect. See discriminatory purpose or had District thews, (1971). Rather, 400 S. 383-385 U. whether issue preliminary to the Court confined review was hence for discrimination and “potential” Rule 58 had the 534 States, U. Georgia v. United 411 S. subject to 5.§ potential, Rule did have such (1973). concluding Elec- Allen Board interpreted District Court v. State States, United tions, 544 (1969), and U. S. by a modification supra, preclearance to mandate political “which restricts covered or subdivision State at 922. ability Supp., run for office.” F. of citizens to modification Rule 58 was such a The court reasoned that because: employees who
“By imposing a loss on financial [Board] more to choose become makes candidates, [the Rule] process participate difficult for them democratic to from which consequently, restricts the field and, may representatives.” their Ibid. voters select enjoined of Rule 58 District Court therefore enforcement pending with compliance requirements probable jurisdiction. (1978). § 5. We noted U. S. Elections, supra, Since we Allen v. find Sheffield, United States v. Board Comm’rs U. (1978), dispositive of the issues in this we presented appeal, affirm.
II provides or Section that whenever a covered State any voting subdivision “shall or seek administer enact standard, qualification prerequisite practice, voting, or procedure different from that in force
or effect on November 1, 1964,” may implement not that change until it either secures a determination from the District Court for the District of Columbia that the change not “does have the purpose and will have not the effect denying abridging the right to vote on account of race or color” or submits change Attorney General interposes he and objection no within days. S. (emphasis U. C. 1973c added). Although §14 (c)(1) expansively defines the term “voting” to “include all action necessary to make a vote effective,” 79 Stat. 445, U. S. C. 1973Í (c)(1), Act itself amplifies nowhere the meaning of phrase “standard, practice, or procedure to voting.” Accordingly, previous our constructions of § we sought have guidance 5, from history and purpose of the Act.
A This Court first considered scope of the critical lan- guage of § 5 in Allen Elections, v. State Board 393 U. S. 544 (1969), involving appeals consolidated in three cases from Mississippi and one from Virginia. After canvassing the legislative history of the Act, we concluded Congress that meant “to reach any state enactment which altered the elec- tion law of a covered even a minor way.” 393 U. S.,. at 566.5 Conceived after “nearly century systematic resistance to the Fifteenth Amendment,” South Carolina v. Katzenbach, 383 U. 328 (1966),6 the Voting Rights 5For example, we noted Attorney Katzenbach, played who a substantial role in Act, drafting the testified that “practice” term 5 “was intended to be . . all-inclusive . .” Hearings on S. 1564 before the Senate Committee on Judiciary, Cong., Sess., 89th 1st (1965), quoted in Allen v. State Elections, Board supra, 566-567, at and n. 31. protean strategies of racial discrimination Congress led adopt Voting Rights Act have been often discussed Court, this see United States Comm’rs Sheffield, 435 U. S. 118- 121 (1978); South v. Katzenbach, Carolina S., 383 U. 308-315, need not be reviewed here. *6 38 Allen was,
Act as “aimed at the as well emphasized, subtle, regulations the effect of obvious, state which have denying right citizens to vote of their race.” their because omitted). (footnote 393 at 565 To effectuate S., U. id., the Allen purposes legislation,” 570, “articulated at phrase procedure” Court held that the “standard, practice, id., given must possible be at and scope,” 567, “broadest encompass require- it qualification construed to candidate Id., Williams, (Whitley case companion ments. v. Allen, supra). any decided with concluded that Court enactment which independent burdens an candidate “increasing difficulty gain position [him] general election subject ballot” is to 5 since such a measure could “undermine the effectiveness” of voters who wish to elect representatives. nonaffiliated S.,U. at 565.
In subsequent consistently cases interpreting 5,§ we have principles adhered to the of broad construction forth in set Allen. Amos, Hadnott v. 394 U. 358 (1969), S. this Court held that an Alabama statute requiring independent candi- dates to declare their intention to seek officetwo months earlier prior than under procedures imposed “increased barriers” on Id., candidacy and scrutiny. therefore warranted at 366. in other contexts than candidate Similarly, we qualification, interpreted have expansively § 5 mandate in changes Matthews, Perkins v. polling the location of places, supra; of municipal Richmond alterations boundaries, v. States, United Petersburg U. 358 (1975); v. United States, 410 U. (1973), summarily S. 962 aff’g Supp. 354 F. (DC Matthews, Perkins supra; 1972); reappor- and States, tionment Georgia v. United redistricting plans, supra. Congress disagreed
Had with broad construction this of § presumably would have clarified when re-enacting intent the statute in 1970 and 1975. Yet, as this Court observed in States, v. United extensive “[a]fter deliberations during to extend Voting Rights 1970 on bills Act,
which Allen the Act was repeatedly discussed, case was extended for five substantive modification years, without omitted). Again (footnote of 5.” U. at 533 S., Judiciary in recom- Committees, both the House and Senate mending approval the “broad extension noted Act, scope Perkins interpretations 5” Allen and Section *7 Rep. 94-295, p. (1975) (hereinafter v. Matthews. No. 16 S. Rep.); Rep. 94-196, p. (1975) (hereinafter H. R. No. 9 S. Court, H. R. of the Com- Rep.). Confirming the view this 5 Reports qualification, mittee without stated, “[s]ection changes prior all requires Act review of Rep. 15; implementation jurisdictions.” the covered Rep. (emphasis added). H. R. Attorney 1971,
The in since regulations, General’s force equally reflect an inclusive of the reach of 5. understanding § They provide even voting, 11 changes affecting “[a] change indirect,” minor or must be though appears to be (1977). prior approval. (a) submitted for CFR 51.4 preclearance of particularly, regulations require More “[a]ny persons alteration to become affecting eligibility in position or remain candidates or obtain on the ballot office- primary or elections or to become or remain general regulations, Pursuant to these (c)(4). §51.4 holders.” Attorney requested General, apprised after Rule being 58, role its submission for clearance.7 Given the central § 5 Attorney implementing formulating General particular interpretation scope this of its is entitled to Sheffield, deference. United States v. Comm’rs 7Shortly litigation, appellee before the commencement of this counsel brought Rights Rule 58 to the attention of the Civil Division of the appellee Department of Justice. Two and one-half months after filed his Attorney complaint, Pottinger Superin Assistant informed the System County Dougherty tendent of the School that Rule should be preclearance. Appellants response. submitted for made no Matthews, Perkins 400 U. at 391. S., 131; S., 435 U. v. See States, Georgia United S., U. at 536-539.
B consistently Despite expansive these constructions appellants District Attorney contend that General and treating a “standard, practice, Court erred Rule procedure with “a voting” simply rather than as getting days days pay nothing means of a full work for a full — nothing Appellants appel- more and less.” Brief for 20. view, subject lants’ did not intend Congress all internal personnel political activity measures affecting to federal superintendence. policy. Board mischaracterizes Rule is not a personnel practice
neutral governing all forms of absenteeism. Rather, specifically process, singling addresses the electoral candidacy activity. out office disabling elective as a Although filing not in form a operates precisely the Rule fee, By the same fashion. imposing substantial economic disin- *8 on employees office, centives who wish to seek elective Rule entry burdens into elective campaigns and, concomitantly, County limits the available to Dougherty choices voters. potential by employees Given the of thousands of loss dollars subject to Rule policy operate the Board’s could more as a entry process substantial inhibition on into the elective than many of filing-fee only changes involving hundreds of to Attorney successfully dollars which the General has inter- posed objections.8 Congress That was well of aware these objections is apparent from the Reports Committee supporting extension of the Act in Rep. 1975. S. 16-17; Rep. H. R. 10.9
8 Rights, U. Voting Rights See S. Commission on Civil Act: Ten g., $360 Years After 134-137 Mobile, fee for Commissioner in {e. 1973; Mayor Alabama, $818 fee Hill, Carolina, in Rock South 1973). addition, In heavily findings Committees relied the United Rights States Voting Rights Commission on Civil in The Act: Ten Years States, that we observed v. United “[s]ection voting procedures, of inventory simple with a concerned is not they affect practices reality changed rather with the but reality here is that S., at 531. The Negro voters.” U. many from no different impact on elections 58’s Rule pre- have for which we changes qualification candidate Amos, 394 See Hadnott viously required preclearance. as a Moreover, Allen, atS., 551.10 (1969); U. U. S. 358 process political to implicates matter, practical Rule that this Court and modifications extent as do other the same changes such as encompass, have 5 to Congress recognized § Matthews, and altera- Perkins v. polling places, location Allen v. write-in casting vote, procedures in the tions Elections, supra. State Board of constraints on all course, not, suggest
We do 5.§ choice violate activity affecting voter employee political by public involvement Presumably, regulation most purpose or invidious found to have an would not be employees changes almost all be said of Yet could the same effect. figures avail- recent to most According 5. subject §to Division Rights Civil Rights Section able, Voting over involving annually 1,800 some submissions processes less than objections to interposes changes 3,100 2%. Approximately (1977). Rep. 159-160 Attorney Ann. length the at some After, supra, 131-142, which reviewed a document by minority candidates. including fifing fees, faced qualification, barriers Rep. 21, 24; Rep. 16. H. See S. R. filing- invalidating certain decisions As this Court recognized has in its reality” Amendment, ignore “we would under the Fourteenth schemes fee candidacy “falls acknowledge that a financial barrier we not were *9 candidates,” “tends to since it unequal voters, as well as weight on of their for a candidate opportunity to vote deny some voters the (filing Carter, (1972) fees of choosing.” Bullock U. S. v. $1,000 of General County Commissioner, for Commissioner $1,424.60 for Panish, Lubin v. County Judge). also Office, $6,300 and for See Land Supervisor). County (filing $701.60 fee 415 U. S. of these receive submissions clearance without further 91% exchange of correspondence. Tr. of Oral Arg. 53. Thus, determining anif enactment triggers § question scrutiny, is not provision whether the is in fact innocuous likely and be but approved, whether it potential has a for discrimination. See States, v. United supra, 534; at Perkins v. Matthews, supra, at 383-385; Allen v. State Board Elec- tions, supra, at 555-556, n. 19, 570-571. 558-559,
Without
intimating any
on
views
question
the substantive
of Rule 58’s legitimacy as a nonracial personnel measure, we
believe that
the circumstances surrounding its adoption and
its effect on
process are sufficiently suggestive of
the potential
for discrimination to demonstrate the need for
preclearance. Appellee was the first Negro in
years
recent
seek election to the General Assembly from Dougherty County,
an area with a long history of racial
discrimination
voting.11
Less than a month after appellee announced his candidacy,
the Board adopted Rule 58, concededly
without
prior
experience of absenteeism among employees seeking office.
That the Board made its mandatory
require-
leave-of-absence
ment contingent on candidacy rather than on absence during
working hours underscores the Rule’s potential for inhibiting
participation in the
process.12
electoral
11For a
review of
rights litigation
city
in the
of Albany, the
county seat of Dougherty County containing
of its population, see
80%
Paige
Gray,
Supp. 459,
F.
(MD
461-463
1975),
Ga.
vacated
part, 538 F.
(CA5
2d
1976),
remand,
43 “increased, Plainly, Rule 58 erects candidacy barriers” to as formidable filing as the date issue in changes at Hadnott v. Amos, supra, (2 at 366 and Allen v. months), State Board Elections, supra, (20 days). require at 551 To directly Rule 58 follows from previous recognition our that § 5 be possible must “the given scope,” broadest Allen v. State Elections, Board supra, at 567, encompassing “subtle, well as the obvious,” forms of discrimination. 393 S.,U. by similarly expansive 565. Informed and adminis- legislative trative understandings perimeters of § we hold that 5, qualification obstacles to candidate such as the Rule involved here are [s], practice procedure's] “standard re- [s], spect voting.”
Ill applies Section 5 changes affecting voting all made “political subdivision designated coverage States [s]” pursuant § 4 of Act. Although acknowledging Board is a subdivision under appellants state law,13 contend that it does not meet the definition of term as employed in the 14 Voting Rights They rely (c) Act. Act, 79 42 445, (c)(2), Stat. U. S. C. 19731 which defines “political subdivision” as
“any county or parish, except that where
registration
supervision
is not conducted under
county
of a
parish,
term
shall include
other subdivision of
which
registration
conducts
for voting.”
Because the
neither
county,
Board is
parish,
entity
nor
professional
responsibilities.
their
(1975);
See Ga. Code
32-2101c
Chattooga County
Ransum v.
Education,
App. 783, 242
Ga.
(1978).
may
E. 2d
adopt
it
explicitly
What
not do is
a rule that
directly
process
preclearance.
burdens the electoral
without
(1975); Campbell
v. Red Bud
§§32-901,
See Ga. Code
23-1716
Dist.,
Consolidated School
541, 548,
225,
(1938);
Ga.
198 S. E.
Ty Ty
Colquitt
Co.,
Consolidated School Dist. Lumber
Ga.
(1922).
Appellants Sheffield not city Sheffield, of does itself the Board, the unlike that responsi- no direct the has conduct elections. Since officials, public of conjunction with the election bilities control” over it does not “exercise argue that appellants id., subject is not therefore 127, and voting process, at §5. cramped a support reading no such provides Sheffield that covered concern there was term “control.” Our preclearance necessity jurisdictions could obviate “allowing local by simple expedient changes crit- to control registration do not voter entities that conduct S., 125. We process.” electoral 435 U. aspects ical process, change the elective held of a impact thus responsibilities, entity’s registration adopting than the rather Here, as the question coverage. dispositive was 5. unit with no supra, indicates, political II, in Part discussion power exercise can nonetheless nominal electoral functions by price par- process attaching tag over the to candidate ticipation. analysis hence achieve what Appellants’ would jurisdictions sought avert; it would enable covered Sheffield by power to circumvent over candidate delegating Act qualification to local entities do not conduct elections de registration. voter A subdivision, jacto instru- “thereby through could delegation, achieve preclearance.” mentalities what it could not do itself without If 435 U. at 139 J., concurring judgment). S., (Powell, only obliga- governmental those units with official electoral Act tions actuate requirements potential a large would be ... number of its “nullified] applications.” (footnote atS., omitted). 435 U.
Nothing language purpose compels in the of the Act such By requires preclearance an anomalous result. terms, § whenever political adopts a subdivision within a covered State change a standard, practice, procedure a with voting. requirement No that the subdivision itself conduct fairly implied.14 § elections is stated 5 and none is As this Court has of observed, Rights § 5 Act reflects Voting Congress’ firm of blight resolve to end “the racial discrimina- in voting, process parts tion which has infected the electoral country our for nearly century.” of a South Carolina v. Katzenbach, 308. a adopting 383 U. Whether subdivision S., potentially discriminatory change some elec- has nominal toral functions bears no purpose relation of 5. That provision impact directs attention to the of on change process, political electoral not to the duties of the subdivision (a) coverage Section 4 makes continued under the Act turn on whether discriminatory “anywhere territory” tests or devices have been used in the political prescribed years. of a State or subdivision for a number of amended, (a). Sheffield, Stat. U. C. 1973b S. we concluded requirements that the territorial reach of the substantive of 5 was meant jurisdictional provisions (a). to be coterminous with the S., of 435 U. §4 at 120-129. it. To adopted coverage make under on § 5 turn whether has Dougherty County confided in the Board of
Education some responsibility formal the conduct elec- tions, clearly when power the Board has the candidate to affect participation in elections, purpose those would serve no con- objectives sonant with the statutory the federal scheme. Nor appellants’ interpretation would comport 5§ congressional history ascertainable intent. legislative of the 1975 extension, here, the statute which is controlling no leaves doubt but Congress all intended electoral changes by political jurisdictions in covered entities to trigger federal scrutiny. Both supporters opponents and proposed appear extension to have under- the common shared standing that under jurisdiction may § no covered enforce a change affecting voting without obtaining prior approval. Hearings See et al. before the Subcommittee on Rights Constitutional of the Senate Committee on the Judi- ciary, 94th 1st Cong., Sess., (1975) (testimony 75-76 Arthur Flemming, Chairman of U. S. Commission on Civil Rights) (e. g., applies § 5 changes “to laws, practices, in voting procedures every that affect stage proc- ess”) ; Hearings on H. R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., Sess., *13 1st (testimony of Arthur Flemming); 121 Rec. 23744 Cong. (1975) (remarks Stennis) Sen. (“Any far changes, so as election officials which concerned, [are] made precincts, county [are] dis- school tricts, districts, municipalities, legislatures . . . to be id., [have] submitted”); (remarks of Sen. Allen). Moreover, both the House and Senate Committees and witnesses at the House and Senate hearings referred to past § 5’s and prospective application to school districts. See, g., e. 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis); Hearings supra, at 467-470 (testimony George Korbel, Regional EEOC Attorney); Hearings on H. R. 939,
supra, at 387-390 (testimony of George Korbel); S. Rep. H. R. 27-28; Rep. 19-20. Yet none of these discussions suggests that direct supervision of elections by a school board is a prerequisite to its coverage under the Act. To the con- trary, fair reading of the legislative history compels the conclusion that Congress was determined in the 1975 extension of the Act to provide some mechanism for coping with all potentially discriminatory enactments whose source and forms it could not anticipate but whose impact on the electoral process could be significant. Rule 58 is such a change.
Because we conclude that Rule 58 is a standard, practice, or procedure with respect to voting enacted an entity subject 5,§to the judgment of the District Court is
Affirmed. Mr. Justice Stewart dissents for the expressed reasons I Part of the dissenting opinion of Mr. Justice Powell.
Mr. Justice Stevens, concurring. Although I remain convinced that the Court’s construction of the statute does not accurately reflect the intent of the Congress that enacted it, see United States v. Board of Comm’rs Sheffield, 435 U. S. 110, 140-150 (Stevens, J., dissenting), Mr. Justice Marshall has demonstrated the rationale of the Court’s prior compels decisions- the result it reaches today. Accordingly, join I his opinion for the Court.
Mr. Justice Powell, with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.
Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain fed- eral clearance of personnel rule requiring employees to take leaves of absence while campaigning office. The Court’s ruling is support without in the language or legis- lative history of the Act. Moreover,.although prior decisions *14 48 his- and language this with liberties taken have Court the
of precedent. without today's decision tory, I Procedure Practice, or Standard, “political a before federal requires 5 Section may enforce Act 4 by § of covered of a State subdivision” voting, prerequisite or qualification voting “any change in a . . . voting respect to procedure standard, practice, traditional from departure radical marked This provision Mem- several departure federalism, of constitutional notions Indeed, unconstitutional.1 regarded have Court bers of this under before come first case in the noted Court congres- exercise an “uncommon represents § 5 Act that 301, U. Katzenbach, 383 S. v. Carolina South power,” sional in tes- has conceded Department the Justice and (1966), 334 . departure . . “substantial is a that it Congress before timony Hearings on system.” our federal concepts of ordinary from Rights Constitutional the Subcommittee 407 al before et S. 1st Cdng., 94th Judiciary, on the Committee Senate Atty. Asst. Pottinger, Stanley (testimony (1975) 536 Sess., Division). Rights Civil Gen., Government the Federal intrusion tempered
Congress coverage to Act’s by limiting however, affairs, into state shows of the Act very title Indeed, regulations. requirement of preclearanee Black believed Mr. Justice render as to government structure constitutional our “so distorts power federal state and Constitution between in the drawn distinction Katzenbach, 383 U. S. v. South Carolina meaningless.” See almost Members of Other dissenting opinion). (concurring and (1966) Elec Allen v. State misgivings. See expressed have Court also dis concurring and (1969) (Harlan, J., 544, 586, n. 4 tions, U. S. J., con (Burger, C. (1972) Richmond, 406 U. S. senting); Holt v. (Powell, States, U. United ; curring) to be the Act held have Court dissenting). decisions of the J., But constitutional. *15 the Act’s thrust is directed to protection of voting
rights. Section 2 forbids the States to use any “voting quali- fication or prerequisite to voting, or standard, practice, or procedure” (emphasis added) to deny anyone the right to vote on account of race. Similarly, § 4 sharply curtails the rights of certain States to use “tests or devices” as prerequisites to voting eligibility. “[T]est or device” is defined in 4§ (c), 42 U. S. C. § 1973b (c), as
“any requirement that a person aas prerequisite for or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) dem- onstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” (Emphasis added.) Finally, § 5 requires preclearance only of “any voting qualifi- cation or prerequisite to voting, or standard, practice, or procedure with respect to voting” (emphasis added).2 The question under this language, therefore, is whether Rule 58 of the Board pertains to voting. Contrary to the suggestion of the Court’s opinion, see ante, at 42-43, answer to this question turns neither on the Board’s possible discrimination against the appellee, nor on potential enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to enact- 2In (e) Act, 42 U. S. C. (c) § 19731 (1), the terms “vote” and “voting” are defined to “include all action necessary to mate a vote effective primary, special, general election, including, but not to, limited registration, listing pursuant to this subchapter, or other required action by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with to public candidates for or party office and propositions for which votes are received in an election.” rather, discriminatory use; a potential have
ments regardless of voting, respect regulations all extends race was party’s affected potential uses. purpose their determining whether irrelevant to be by counsel conceded 25-27; Arg. of Oral see Tr. voting, pertains Rule 58 *16 signifi- 58 of of Rule adoption timing of is the the nor Act, under the cause of action stating his in Indeed, cance. basis on the any discrimination allege not appellee does the subject Rule 58 is that holding Court, the Yet of race.3 perceived relies on of 5,§ requirements to the simply the Court doing, so for discrimination. potential factors that upon relies 5 and scope §of explicit disregards be irrelevant.4 have conceded parties only: alleged action cause of Appellee’s first of in violation herein are complained of of the defendants “The actions seq., that 1971, et 1965, 42 U. C. Sec. Rights Act S. Voting of vote, qualification prerequisite or 'voting instituted defendants have from voting different procedure with standard, practice or or submitting or 1, 1964’ without November or effect on in force Attorney the United States required approval of either obtaining the Columbia, for the District Court United States District Defendants Voting Rights Act of 1965. by required Five of the Section Voting Rights Act.” meaning of the jurisdiction' within are a 'covered and Fifteenth under the Fourteenth forth claims appellee also set The action, these causes 1983. Under 42 U. C. Amendments under appellee’s race. the basis of alleged discrimination on appellee may probative be adoption the Board timing 58’s of Rule race and enacting unconstitutionally in Board acted establishing whether the by the District addressed were not these causes action 58. But Rule before us. Court and are not Rights to “banish Voting Act was sure, purpose To be South voting” in selected States. See in- blight racial discrimination imposed end, Congress supra, at 308. this Katzenbach, To Carolina v. voting rights of affecting the activities proscription on an unlimited anyone to “intim the Act by making it under a crime others urging . or for . . threaten, any person ... coerce idate, 1973i(b). §5, is not Unlik-e S. C. any person U. §11 to vote.” Separated from all mistaken references to racial discrimina- tion, the Court’s holding that Rule 58 is a “standard, practice, or procedure with respect to voting” is difficult to understand. It tortures the language of the Act to conclude per- this sonnel regulation, having nothing to do with the conduct of elections as such, is state action “with respect to voting.” No one is denied the right to vote; nor is anyone’s exercise of the franchise impaired.
To support
its interpretation of
5,§
the Court has con
structed a tenuous theory, reasoning that, because the right
to vote includes the right
to vote for whoever may wish to
run for office, any discouragement given any potential candi
date may deprive someone of the right to vote.
In construct
ing this theory, ante, at 41, the Court relies upon Bullock v.
Carter,
As no prior 5§ decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from limited to devices identifiable as voting regulations. On the other hand, §2 does not deal with every voting standard, practice, or procedure, but rather is limited to voting procedures deny someone the right to vote. Thus, although Congress had but one purpose, it used different methods to reach its ends. Under 5, Congress required preclearance of all changes in voting irrespective of their intent, laws— effect, potential or use. State Allen v. example, For meaningless.5 context, 5§ suggested Court the Elections, at supra,
Board of which alter [s] “any enactment state clearance require would way.” minor a in even a covered State law the election necessary the as were viewed in Allen language if the Even today’s support not case, it would in that holding Court’s today,6 upon relied Allen, cases in each as decision. interpretation of Attorney upon General’s relies Court also The quotes Thus, Court ante, today. at 39-40. holding See for its Act “[a]ny alteration regulations that Attorney General’s in the language . . .” candidates remain persons to become eligibility of affecting the however, Nothing affected Rule Ante, at 39. precleared. be must remain a candidate eligibility to become appellee’s not regulations do Attorney General’s Representatives. As House concerning wages paid to personnel rule a specificity whether state with 5, these voting” under regulation “with ais candidates Although the case at hand. no assistance regulations are of cleared, is no indica there be that Rule 58 Attorney now demands General the Justice policy of longstanding accords with this tion that action Attorney “the admits that Indeed, the General Solicitor Department. appel experience such provisions [the] little has had 14. Amicus Curiae States as 58.” See Brief United . . . lant Rule [s’] Attor to the purported circumstances, deference the Court’s these Under in this case— first time for the position apparently voiced ney General’s — makeweight. is a change decision to Allen were a Court in presented to the actions Superintend elections, to make at-large an enactment district to from qualifications stiffening of the position, appointive Schools an ent of Elections, independent Allen v. required candidates. See Court cases to which the Similarly, S., the other 393 U. 550-552. States, 422 U. S. v. United voting regulations: Richmond involved alludes *18 (1973) States, U. S. 526 (annexation); v. United (1975) (1973) Petersburg States, U. S. v. United (reapportionment); (annexation (1971) Matthews, 400 U. S. (annexations); Perkins (requirements Amos, U. S. 358 redistricting); Hadnott v. only progeny involved candidates). and its Because Allen independent implicit ratification voting regulation, directly pertaining enactments bearing the case 1975 has no by Congress in 1970 and decisions these at hand.
the Court was considering an enactment relating directly to the way in which elections are conducted: either by structur- ing the method of setting balloting, forth the qualifications for candidates, or determining who permitted shall be to vote. These enactments could be said to be “with respect to voting” in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It personnel rule directed to the resolution of a personnel problem: expendi- ture of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning', rather than to counseling schoolchildren. After extending the scope of 5 beyond anything indicated
in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a “neutral personnel practice governing all forms of absenteeism,” as it “specifically addresses the electoral process.” See ante, at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves absence whenever an extracurricular responsibility required them frequently to be absent from their duties —whether that responsibility de- rived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, give as the principal reason for extension of § 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a “neutral personnel practice gov- erning all forms of absenteeism” is no less than the effect of Rule 58 as enacted the Dougherty County School Board. Thus, under general absenteeism provision the appellee go would without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy join would the appellee on leave. *19 enactments those even therefore, rationale, Court’s the Under would process electoral the to reference explicit no making Dis- or the Attorney the through be cleared to have Court if the Indeed, Columbia. of District for Court trict is suffi- on elections impact incidental that means truly is then 5,§of requirement preclearance trigger the to cient enactments local state of sorts what imagine to difficult section.7 that scope within not fall would II Subdivision Political those only of preclearance federal requires Section 4§ under covered by a either adopted are that changes Although a State. of such subdivision” “political by a subdivision” “political term restricts Act (c) 14§ voting,” for registration “conduo[t] that institutions to state requirement ruled the Court Term last without Ala., which Sheffield, city of to the applied of § States United See voters. authority register to result possible anticipate one required imagination is Little every employees at Act, public by the covered In States today's decision: office, candidacy” elective their may “declare government of state level be will It pay. drawing their duties while avoiding their thereby this close adopted regulations personnel course, that answered, of approval. his Attorney General to the be submitted can “loophole” foreclose appears to case in this brief amicus Indeed, the Government’s trivialities these rule would Justice Department of that the possibility governmental local thousands are There Act. proscribed be sanitary district commissions, boards, planning school bodies, however: may choose Many of these like. boards, and zoning commissions, expense, taxpayers’ at the privilege this employees allowing course easier experience frustrating often the unwelcome through going than rather bureaucracy. through the federal regulation personnel clearing each their implementing prevail in eventually will bodies of these most if Even of the Federal only sufferance may do so they fact regulations, self- of local notions basic most to our counter runs Government supra. 1,n. See government. *20 Sheffield, Commissioners 435 U. 110 (1978). Sheffield been given had authority, however, to a undertake substantial restructuring by of the method government which its officials would be selected.8 Thus, pursuant to a voter referendum, Sheffield had changed from a a commission to mayor-council form of government. Councilmen were to be elected at large, but run for would numbered seats corresponding the two to council seats given each of the city’s four wards.
The Court held that political Sheffield was subdivision, spite of its lack of authority register Today voters. Court that appellants’ states squarely “contention is fore- by closed our decision Ante, last Term” in at 44. Sheffield. The contention that this local school political board is not a subdivision under the Act is only foreclosed because the Court now declares it to be so, as neither holding nor the rationale applies to this case. The deci- Sheffield Sheffield sion was based two grounds, neither of which present here. First, upon Court relied “congressional intent” Sheffield as derived from “the Act’s structure,” language “the of the Act,” legislative “the history of . enactment . . re-enact- and ments,” Attorney and “the General’s interpreta- consistent tions of § 5.” 435 S.,U. at 117-118. Second, the Court based its decision on the frustration of the basic Act’s policy that would if result a State could provisions circumvent the Act’s by simply withdrawing power register voters from all or selected cities, counties, parishes, or political other subdivisions.9 Code, See Ala. Tit. (1975). 4D150 to 44-162 §§ joined 9 1 judgment of the Court in for similar reasons: Sheffield today’s “I believe decision precedents to be correct this under Court’s
necessary in order to purposes effectuate the Act, as construed in Allen and Perkins. purposes view these it does not make sense to limit preclearance requirement political charged units with voter registration. . . . [S]uch construction the statute would enable cov ered States or subdivisions to allow local entities that do not nothing There is language, legislative structure, history of suggests Congress’ the Act was intent that local entities such Board were to fall within the reach 5; nor interpreta- has the Court cited “consistent tion” of Attorney supports General that the Court’s holding.10 Looking to the structure of the Act, the Court argues that responsibilities whether a subdivision has electoral is of no consequence in determining applicable. whether 5 is Ante, at provision 45-46. Rather, it is said this “directs *21 impact attention to the change of a process, the electoral not to the duties of the political subdivision adopted it.” Ibid. any Neither nor other decision of the Sheffield suggests Court applies every § to actions of local the entity powers however remote its may be with to elec- tions and voting. Indeed, the Court indicated the importance of power direct over elections in repeatedly when it Sheffield emphasized “power Sheffield’s over the process.” electoral registration conduct voter responsibility to assume changing the process. electoral A covered thereby State or subdivision could through achieve its instrumentalities what it could not do itself without preclearanee.” S., 435 U. at 139. 10Indeed, in discussing Dougherty County whether the Board of Educa “political is tion a by 5, subdivision” covered the Court makes no § any reference interpretation by whatsoever to Attorney of the Act Thus, General. what the Court found “compelling argument” to be a extending preclearance requirement city Sheffield, to the of see Shef field, S., 131, wholly 435 U. at absent here. relying upon interpretation the Act’s structure for its of § Court in made much the scope (a) of 4 and the need to read § Sheffield 5 “in lock-step S., with 4.” (quoting See 435 U. at 122 § Allen v. State § Elections, S., J., U. at 584 (Harlan, concurring and dissent ing) ). Thus, the Court apply entity concluded that 5 must § control over system, (a) the electoral proscribes because 4 the use of literacy tests and devices, any entity similar with control over the system electoral could use such analysis, devices. Under this the Board should not scope come within power as it no has to use a test deprive anyone device to right of the to vote. A g., applica- e. 127. rational See, S., 118, 120, 122, 435 U. require tion of consideration of whether would Sheffield entity enacting substantial measure author- change a had a ity in were held or over the way over the which elections such right city authority; to vote. The had Sheffield Dougherty County Board does not. School history legislative
Although professing support to find or statement report no committee Act, the cites Court by any congressional supporter suggests of the Act that by local require intention to of actions federal any control over elec- powerless entities that are to exercise try tions or 5 to school voting. The Court does connect entirely legislative history that are boards references to each of irrelevant. The to make clear that neglects Court enacting changes pertained these references school board way something Dougherty its members were elected, authority County School Board is without to do.12 See Cong. (remarks Stennis) (“Any Rec. Sen. far were changes, concerned, so as election officials were which munici- county districts, made school precincts, districts, submitted”) ; palities, . . . had to be legislatures *22 Hearings on 407 et al. before the Consti- S. Subcommittee Judiciary, tutional of the Committee on the Rights Senate (school enacting 94th 1st 467-470 board Cong., Sess., (1975) for changes members); from ward to elections its at-large adopt- Rep. (school No. in Texas 94-295, p. boards minority changes” lection law to avoid election ing “[e] groups boards). to school Dougherty County authority The has no over of Education
any aspect system. charges Georgia of an electoral State Constitution system Dougherty administering public the Board with the school within 1977). mem County, Georgia. (Supp. The five See Ga. Code §2-5302 appointed by County Jury terms of bers of Board are Grand maintaining years, powers establishing five and have limited to system. public school possible over the
Furthermore, Court’s concern Sheffield the Board inapposite of the Act is here, circumvention city Sheffield) authority regulate (unlike has no can be no that process. danger, therefore, electoral There system will restructuring substantial of the electoral take scrutiny place Dougherty County in without the of either Attorney General or the District for the District Court Columbia. upon present none of the relied in
Thus, factors is Sheffield “language in this case: There no relevant noth- Act,” is of the ing in in his- nothing “legislative the “Act’s structure,” tory,” interpretation and no “consistent 5” Attorney support 5§ the extension of to the Board’s Nor school possible enactments. is it that a local authority process board that without over will the electoral simply be used to There policy. circumvent the Act’s basic parallel governmental theory city is no in fact between a like Dougherty County Sheffield and the Board. School
Finding no support its decision in rationale of Sheffield, upon language opinion the Court falls back “all having power any aspect entities over of the elec- process” subject language merely expressing toral are to § 5— present a conclusion drawn from a consideration of the factors Sheffield, “power but here.13 The Board has no absent any aspect process” over of the electoral the normal sense of these words. It purport by regulate did not Rule 58 to appellee’s election to the Representatives; House of
13Today entity empowered the Court adopt concludes that state “potentially discriminatory enactments” an effect on elections is a “political purposes subdivision” for also construes Act. The Court every discriminatory “standard, potentially practice, such enactment to be a procedure” Thus, although professes under 5. the Court to be *23 deciding telescopes Every entity questions, two different it them one: into empowered practice, standard, procedure respect to enact a or (that is, regulation may potentially be as discrimina viewed tory) by subject definition is a to 5. subdivision do so. law to authority under no has been given if employees that, said to merely has its Rather, not Board will office, run for elective they choose to wages paying their campaign by affirmatively support their occur. inevitably will duties that despite neglect their hardly fisc protect public designed to neutral action Such process.” the election “power over . . level of rises . or on either judgment below I reverse the sum, would Board is County School grounds. Dougherty both two Act. meaning within “political not a subdivision” at issue personnel rule such, if deemed to be Even it were vot- procedure “with standard, practice, is not a I view I Brothers’ my opinions, ing.” respectful As am Act, judicial revision simply the Court’s decision as structure, statutory language, unsupported by purpose, history.