Lead Opinion
delivered the opinion of the Court.
In various Alabama counties voters elect members of county commissions whose principal function is to supervise
To determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted. Absent relevant intervening changes, the Act requires us to use practices in existence on November 1, 1964, as our standard of comparison.
A
We consider first the Etowah County Commission. On November 1, 1964, commission members were elected at large under a "residency district" system. The entire electorate of Etowah County voted on candidates for each of the five seats. Four of the seats corresponded to the four
Each of the four residency districts functioned as a road district. The commissioner residing in the district exercised control over a road shop, equipment, and road crew for that district. It was the practice of the commission to vote as a collective body on the division of funds among the road districts, but once funds were divided each commissioner exercised individual control over spending priorities within his district. The chairman was responsible for overseeing the solid waste authority, preparing the budget, and managing the courthouse building and grounds.
Under a consent decree issued in 1986, see Dillard v. Crenshaw County, Civ. Action No. 85-T-1332-N (MD Ala., Nov. 12,1986), the commission is being restructured, so that after a transition period there will be a six-member commission, with each of the members elected by the voters of a different district. The changes required by the consent decree were precleared by the Attorney General. For present purposes, it suffices to say that when this litigation began the commission consisted of four holdover members who had been on the commission before the entry of the consent decree and two new members elected from new districts. Commissioner Williams, who is white, was elected from new district 6, and Commissioner Presley, who is black, was elected from new district 5. Presley is the principal appellant in the Etowah County case. His complaint relates not to the elections but to actions taken by the four holdover members when he and Williams first took office.
On August 25, 1987, the commission passed the “Road • Supervision Resolution.” It provided that each holdover commissioner would continue to control the workers and
The same day the Road Supervision Resolution was passed, the commission passed a second, the so-called “Common Fund Resolution.” It provides in part that
“all monies earmarked and budgeted for repair, maintenance and improvement of the streets, roads and public ways of Etowah County [shall] be placed and maintained in common accounts, [shall] not be allocated, budgeted or designated for use in districts, and [shall] be used county-wide in accordance with need, for the repair, maintenance and improvement of all streets, roads and public ways in Etowah County which are under the jurisdiction of the Etowah County Commission.” App. to Juris. Statement in No. 90-711, p. 49a.
This had the effect of altering the prior practice of allowing each commissioner full authority to determine how to spend the funds allocated to his own district. The Etowah County Commission did not seek judicial or administrative preclearance of either the Road Supervision Resolution or the Common Fund Resolution. The District Court held that the Road Supervision Resolution was subject to preclearance but that the Common Fund Resolution was not. No appeal was
B
We turn next to the background of the Russell County Commission. On November 1, 1964, it had three commissioners. Like the members of the Etowah County Commission before the consent decree change, Russell County Commissioners were elected at large by the entire electorate, subject to a requirement that a candidate for commissioner reside in the district corresponding to the seat he or she sought. A 1972 federal court order, see Anthony v. Russell County, No. 961-E (MD Ala., Nov. 21, 1972), required that the commission be expanded to include five members. The two new members were both elected at large from one newly created residency district for Phenix City, the largest city in Russell County. Following the implementation of the court order, each of the three rural commissioners had individual authority over his own road shop, road crew, and equipment. The three rural commissioners also had individual authority for road and bridge repair and construction within their separate residency districts. Although funding for new construction and major repair projects was subject to a vote by the entire commission, individual commissioners could authorize expenditures for routine repair and maintenance work as well as routine purchase orders without seeking approval from the entire commission.
Following the indictment of one commissioner on charges of corruption in Russell County road operations, in May 1979 the commission passed a resolution delegating control over road construction, maintenance, personnel, and inventory to the county engineer, an official appointed by the entire commission and responsible to it. The engineer’s previous duties had been limited to engineering and surveying services for the separate road shops and running a small crew devoted to pothole repair. Although the May 1979 resolution
“Section 1. All functions, duties and responsibilities for the construction, maintenance and repair of public roads, highways, bridges and ferries in Russell County are hereby vested in the county engineer, who shall, insofar as possible, construct and maintain such roads, highways, bridges and ferries on the basis of the county as a whole or as a unit, without regard to district or beat lines.”
The parties refer to abolition of the individual road districts and transfer of responsibility for all road .operations to the county engineer as the adoption of a “Unit System.” Neither the resolution nor the statute which authorized the Unit System was submitted for preclearance under § 5.
Litigation involving the Russell County Commission led to a 1985 consent decree, see Sumbry v. Russell County, No. 84-T-1386-E (MD Ala., Mar. 17,1985), that enlarged the commission to seven members and replaced the at-large election system with elections on a district-by-district basis. Without any mention of the Unit System changes, the consent decree was precleared by the Department of Justice under §5. Following its implementation, appellants Mack and Gosha were elected in 1986. They are Russell County’s first black county commissioners in modern times.
C
In May 1989, appellants in both cases now before us filed a single complaint in the District Court for the Middle District of Alabama, alleging racial discrimination in the
With respect to the issues now before us, a majority of the District Court held that neither the Common Fund Resolution of the Etowah County Commission nor the adoption of the Unit System in Russell County was subject to § 5 pre-clearance. The court held that changes in the responsibilities of elected officials are subject to preclearance when they "effect a significant relative change in the powers exercised by governmental officials elected by, or responsible to, substantially different constituencies of voters." App. to Juris. Statement in No. 90-711, pp. 13a-14a. Applying its test, the court found that the Common Fund Resolution in Etowah County did not effect a significant change and adoption of the Unit System in Russell County did not transfer authority among officials responsible to different constituencies. We noted probable jurisdiction.
II
We first considered the Voting Rights Act in South Carolina v. Katzenbach,
After South Carolina v. Katzenbach upheld the Voting Rights Act against a constitutional challenge, it was not until we heard Allen v. State Bd. of Elections,
In giving a broad construction to §5 in Allen, we noted that “Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.” Id., at 566. Relying on this language and its application in later cases, appellants and the United States now argue that because there is no de minimis exception to § 5, the changes at issue here must be subject to preclearance. E. g., Brief for United States as Amicus Curiae 21-22. This argument, however, assumes the answer to the principal question in the case: whether the changes at issue are changes in voting, or as we phrased it in Allen, “election law.”
We agree that all changes in voting must be precleared and with Allen’s, holding that the scope of §5 is expansive within its sphere of operation. That sphere comprehends all changes to rules governing voting, changes effected
The principle that § 5 covers voting changes over a wide range is well illustrated by the separate cases we considered in the single opinion for the Court in Allen. Allen involved four cases. The eponymous Allen v. State Bd. of Elections concerned a change in the procedures for the casting of write-in ballots.
Our cases since Allen reveal a consistent requirement that changes subject to §5 pertain only to voting. Without implying that the four typologies exhaust the statute’s coverage, we can say these later cases fall within one of the four factual contexts presented in the Allen cases. First, we have held that § 5 applies to cases like Allen v. State Bd. of Elections itself, in which the changes involved the manner of voting. See Perkins v. Matthews,
The first three categories involve changes in election procedures, while all the examples within the fourth category might be termed substantive changes as to which offices are elective. But whether the changes are of procedure or substance, each has a direct relation to voting and the election process.
III
A comparison of the changes at issue here with those in our prior decisions demonstrates that the present cases do not involve changes covered by the Act.
A
The Etowah County Commission’s Common Fund Resolution is not a change within any of the categories recognized in Allen or our later cases. It has no connection to voting procedures: It does not affect the manner of holding elections, it alters or imposes no candidacy qualifications or requirements, and it leaves undisturbed the composition of the electorate. It also has no bearing on the substance of voting power, for it does not increase or diminish the number of officials for whom the electorate may vote. Rather, the Common Fund Resolution concerns the internal operations of an elected body.
Appellants argue that the Common Fund Resolution is a covered change because after its enactment each commis
Were we to accept appellants’ proffered reading of § 5, we would work an unconstrained expansion of its coverage. Innumerable state and local enactments having nothing to do with voting affect the power of elected officials. When a state or local body adopts a new governmental program or modifies an existing one it will often be the case that it changes the powers of elected officials. So too, when a state or local body alters its internal operating procedures, for example, by modifying its subcommittee assignment system, it “implicate^] an elected official’s decisionmaking authority.” Brief for United States as Amicus Curiae 17-18 (emphasis in original).
Appellants and the United States fail to provide a workable standard for distinguishing between changes in rules governing voting and changes in the routine organization and functioning of government. Some standard is necessary, for in a real sense every decision taken by government implicates voting. This is but the felicitous consequence of democracy, in which power derives from the people. Yet no one would contend that when Congress enacted the Voting Rights Act it meant to subject all or even most decisions of government in covered jurisdictions to federal supervision. Rather, the Act by its terms covers any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U. S. C. § 1973c. A faithful effort to implement the design of the statute must begin by drawing lines between those governmental decisions that involve voting and those that do not.
A simple example shows the inadequacy of the line proffered by appellants and the United States. Under appellants’ view, every time a covered jurisdiction passed a budget that differed from the previous year’s budget it would be
No doubt in recognition of the unacceptable consequences of their views, appellants take the position that while “some budget changes may affect the right to vote and, under particular circumstances, would be subject to preclearance,” most budget changes would not. Postargument Letter from Counsel for Appellants, Nov. 13, 1991 (available in Clerk of Court’s case file). Under their interpretation of §5, however, appellants fail to give any workable standard to determine when preclearance is required. And were we to acknowledge that a budget adjustment is a voting change in even some instances, the likely consequence is that every budget change would be covered, for it is well settled that every voting change with a “potential for discrimination” must be precleared. Dougherty County Bd. of Ed. v. White,
Confronting this difficulty, at oral argument the United States suggested that we draw an arbitrary line distinguishing between budget changes and other changes, Tr. of Oral Arg. 21-23. There is no principled basis for the distinction, and it would be a marked departure from the statutory category of voting. If a diminution or increase in an elected official’s powers is a change with respect to voting, then whether it is accomplished through an enactment or a budget shift should not matter. Even if we were willing to draw an unprincipled line excluding budgetary changes but not other changes in an elected official’s decisionmaking authority, the result would expand the coverage of § 5 well beyond the statutory language and the intention of Congress.
Under the view advanced by appellants and the United States, every time a state legislature acts to diminish or increase the power of local officials, preclearance would be required. Governmental action decreasing the power of local
Changes which affect only the distribution of power among officials are not subject to § 5 because such changes have no direct relation to, or impact on, voting. The Etowah County Commission’s Common Fund Resolution was not subject to the preclearance requirement.
B
We next consider Russell County’s adoption of the Unit System and its concomitant transfer of operations to the county engineer. Of the four categories of changes in rules governing voting we have recognized to date, there is not even an arguable basis for saying that adoption of the Unit System fits within any of the first three. As to the fourth category, it might be argued that the delegation of authority to an appointed official is similar to the replacement of an elected official with an appointed one, the change we held subject to § 5 in Bunton v. Patterson. This approach, however, would ignore the rationale for our holding: “[Ajfter the change, [the citizen] is prohibited from electing an officer formerly subject to the approval of the voters.” Allen,
The change in Russell County does not prohibit voters “from electing an officer formerly subject to the[ir] approval.” Allen, supra, at 570. Both before and after the change the citizens of Russell County were able to vote for the members of the Russell County Commission. To be sure, after the 1979 resolution each commissioner exercised less direct authority over road operations, that authority having been delegated to an official answerable to the commission. But as we concluded with respect to Etowah County, the fact that an enactment alters an elected official’s powers does not in itself render the enactment a rule governing voting.
It is a routine part of governmental administration for appointive positions to be created or eliminated and for their powers to be altered. Each time this occurs the relative balance of authority is altered in some way. The making or unmaking of an appointive post often will result in the erosion or accretion of the powers of some official responsible to the electorate, but it does not follow that those changes are covered by § 5. By requiring preclearance of changes with respect to voting, Congress did not mean to subject such routine matters of governance to federal supervision. Were the rule otherwise, neither state nor local governments could exercise power in a responsible manner within a federal system.
The District Court, wrestling with the problem we now face and recognizing the need to draw principled lines, held that Russell County’s adoption of the Unit System is not a covered change because it did not transfer power among officials answerable to different constituencies. Even upon the assumption (the assumption we reject in this case) that some transfers of power among government officials could be changes with respect to voting as that term is used in the Act, we disagree with the District Court’s test. The ques
We need not consider here whether an otherwise uncovered enactment of a jurisdiction subject to the Voting Rights Act might under some circumstances rise to the level of a de facto replacement of an elective office with an appointive one, within the rule of Bunton v. Patterson. For present purposes it suffices to note that the Russell County Commission retains substantial authority, including the power to appoint the county engineer and to set his or her budget. The change at issue in Russell County is not a covered change.
IV
The United States urges that despite our understanding of the language of § 5, we should defer to its administrative construction of the provision. We have recognized that “the construction placed upon the [Voting Rights] Act by the Attorney General ... is entitled to considerable deference.” NAACP v. Hampton County Election Comm’n,
We do not believe that in its use of the phrase “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,” 42 U. S. C. § 1973c, the statute is ambiguous as to the question whether § 5 extends beyond changes in rules governing voting. To be sure, reasonable minds may differ as to whether some particular changes in the law of a covered jurisdiction should be classified as changes in rules governing voting. In that sense § 5 leaves a gap for interpretation to fill. See Chevron, supra, at 843. When the Attorney General makes a reasonable argument that a contested change should be classified as a change in a rule governing voting, we can defer to that judgment. But § 6 is unambiguous with respect to the question whether it covers changes other than changes in rules governing voting: It does not. The administrative position in the present cases is not entitled to deference, for it suggests the contrary. The United States argues that the changes are covered by § 5 because they implicate the decisionmak-ing authority of elected officials, even though they are not changes in rules governing voting. This argument does not meet the express requirement of the statute.
V
Nothing we say implies that the conduct at issue in these cases is not actionable under a different remedial scheme. The Voting Rights Act is not an all-purpose antidiscrimination statute. The fact that the intrusive mechanisms of the Act do not apply to other forms of pernicious discrimination does not undermine its utility in combating the specific evils it was designed to address.
Our prior cases hold, and we reaffirm today, that every change in rules governing voting must be precleared. The
If federalism is to operate as a practical system of governance and not a mere poetic ideal, the States must be allowed both predictability and efficiency in structuring their governments. Constant minor adjustments in the allocation of power among state and local officials serve this elemental purpose.
Covered changes must bear a direct relation to voting itself. That direct relation is absent in both cases now before us. The changes in Etowah and Russell Counties affected only the allocation of power among governmental officials. They had no impact on the substantive question whether a particular office would be elective or the procedural question how an election would be conducted. Neither change involves a new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U. S. C. § 1973c.
The judgment of the District Court is affirmed.
It is so ordered.
Notes
As set forth in 42 U. S. C. § 1973c, § 5 provides:
“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will nothave the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court."
Dissenting Opinion
with whom Justice White and Justice Blackmun join, dissenting.
In 1986, an important event occurred in each of two Alabama counties with long histories of white-dominated political processes. In Etowah County, a black commissioner was elected to the county commission for the first time in recent history, and in Russell County, two black commissioners were elected to the county commission for the first time in
As I shall explain, this is a case in which a few pages of history are far more illuminating than volumes of logic and hours of speculation about hypothetical line-drawing problems. Initially, however, it is important to note that a different decision in these cases would not impose any novel or significant burden on those jurisdictions that remain covered under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c.
Prior to these cases, federal courts had uniformly agreed with the Attorney General’s interpretation that § 5 covered transfers of decisionmaking power that had a potential for discrimination against minority voters.
I
The original enactment of §5, the interpretations of the Act by this Court and by the Attorney General, and the reenactment of the statute by Congress in light of those interpretations reveal a continuous process of development in response to changing conditions in the covered jurisdictions.
The central purpose of the original Act was to eliminate the various devices, such as literacy tests, requirements of “good moral character,” vouchers, and poll taxes, that had excluded black voters from the registration and voting process in the southern States for decades.
“The Voting Rights Act of 1965, as amended, 42 U. S. C. §1973 et seq. (1976 ed. and Supp. V), was enacted by Congress as a response to the ‘unremitting and ingenious defiance’ of the command of the Fifteenth Amendment for nearly a century by state officials in certain parts of the Nation. South Carolina v. Katzenbach, 383 U. S. 301 , 309 (1966). Congress concluded that case-by-ease litigation under previous legislation was an unsatisfactory method to uncover and remedy the systematic discriminatory election practices in certain areas: such lawsuits were too onerous and time-consuming to prepare, obstructionist tactics by those determined to perpetuate discrimination yielded unacceptable delay, and even successful lawsuits too often merely resulted in a change in methods of discrimination. E. g., H. R. Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided ‘to shift the advantage of time and inertia from the perpetrators of the evil to its victims,’383 U. S., at 328 , and enacted ‘stringent new remedies’ designed to ‘banish the blight of racial discrimination in voting’ once and for all, id., at 308.” Id., at 243-244 (footnote omitted).
During the first few years after the enactment of § 5, the federal courts gave its text a narrow literal construction that confined its coverage to the political subdivisions that registered voters and to the practices that directly concerned the registration and voting process. Prior to the Court’s decision in Allen v. State Bd. of Elections,
In Allen and its companion cases,
The Court’s construction of the Act in Allen, as requiring preclearance of changes in covered jurisdictions that were responsive to the increase in the number of black registered voters,
“The rationale of this ‘uncommon exercise’ of congressional power which sustained its constitutional validity was a presumption that jurisdictions which had ‘resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees’ would be likely to engage in ‘similar maneuvers in the future in order to evade the remediesfor voting discrimination contained in the Act itself.’ South Carolina v. Katzenbach, supra, at 334, 335 (footnote omitted). This provision must, of course, be interpreted in light of its prophylactic purpose and the historical experience which it reflects. See, e. g., McDaniel v. Sanchez, 452 U. S. 130 , 151 (1981).” McCain v. Lybrand,465 U. S., at 245-246 .
Thus, § 5 was understood to be “a ‘vital element’ of the Act,” and was designed to be flexible enough to ensure that “ ‘new subterfuges will be promptly discovered and enjoined.’” Id., at 248 (citation omitted).
In subsequent cases, this Court has reaffirmed the broad scope of §5 coverage, as first articulated by the Court in Allen.
The reenactment of §5 in 1970, Pub. L. 91-285, 84 Stat. 314,
“One Congressman who had supported the 1965 Act observed, ‘When I voted for the Voting Rights Act of 1965, I hoped that 5 years would be ample time. But resistance to progress has been more subtle and more effective than I thought possible. A whole arsenal of racist weapons has been perfected. Boundary lines have been gerrymandered, elections have been switched to an at-large basis, counties have been consolidated,elective offices have been abolished where blacks had a chance of winning, the appointment process has been substituted for the elective process, election officials have withheld the necessary information for voting or running for office, and both physical and economic intimidation have been employed.
“ ‘Section 5 was intended to prevent the use of most of these devices.’ ”400 U. S., at 389, n. 8 .20
Since the decision in Allen, the debate on reenactment of § 5 in 1970, and the issuance of regulations by the Department of Justice,
II
II The two resolutions adopted by the Etowah County Com- mission on August 25, 1987, less than nine months after the county's first black commissioner took office, were an obvious response to the redistricting of the county that produced a majority black district from which a black commissioner was elected. In my view, it was wrong for the District Court to divorce the two parts of this consolidated response and to analyze the two resolutions separately.
Similar considerations supported the Court’s decision in Dougherty County Bd. of Ed. v. White,
III
The record indicates that the resolution challenged in the Russell County case may well have had a nondiseriminatory, anticorruption purpose.
The Court today rejects the Attorney General’s position that transfers of authority are covered under § 5 when “they
I would therefore reverse in both cases.
Alabama, like the other States that are covered under § 5, was placed in that category because of its history of “substantial voting discrimination.” South Carolina v. Katzenbach,
See Horry County v. United States,
The Solicitor General has advised us that the Department has objected to the following transfers of authority: „
“(1) Mobile, Alabama, March 2, 1976, involving a transfer of administrative duties from the entire commission to individual commissioners; (2) Charleston, South Carolina, June 14, 1977, involving a transfer of taxing authority from the legislative delegation to the county council; (3) Edge-field County, South Carolina, February 8, 1979, involving a transfer of increased taxing power to the county council; (4) Colleton County, South Carolina, September 4, 1979, involving a transfer of authority to tax for school purposes from the legislative delegation to the county council; (5) Brunswick and Blynn County, Georgia, August 16,1982, involving the abolition of separate city and county commissions and the transfer of their powers to a consolidated commission; (6) Hillsborough County, Florida, August 29,1984, involving a transfer of power over municipalities from the legislative delegation to the county commission (objection was withdrawn because the county made clear that it did not intend to effect such a transfer); (7) Waycross, Georgia, February 16, 1988, involving a change in the duties of the mayor; and (8) San Patricio, Texas, May 7, 1990, involving a transfer of voter registration duties from the county clerk to the county tax assessor.” Brief for United States as Amicus Curiae 16, n. 6.
Whether a change in “any . . . standard, practice, or procedure with respect to voting,” 42 U. S. C. § 1973c, must be precleared under §5 depends, not on whether the change “resulted in impairment of the right to vote, or whether [it was] intended to have that effect,” but rather, on “whether the challenged alteration has the potential for discrimination.” NAACP v. Hampton County Election Comm’n,
Brief for United States as Amicus Curiae 16-17.
Tr. of Oral Arg. 27. The Attorney General’s percentage has undergone little change even though the number of submissions has increased over time. For example, when Allen v. State Bd. of Elections,
In the past, various Members of the Court have objected to the types of changes that require preclearance under § 5 in covered States, and have predicted that the Court’s construction of the statute would leave it without boundaries. In Perkins v. Matthews, for example, Justice Harlan expressed the view that the Court was mistaken in holding that annexations are within the scope of §5 and that the Court had gone too far in its interpretation of “with respect to voting”: “Given a change with an effect on voting, a set of circumstances may be conceived with respect to almost any situation in which the change will bear more heavily on one race than on another. In effect, therefore, the Court requires submission of any change which has an effect on voting.”
See, e. g, Perkins v. Matthews,
NAACP v. Hampton County Election Comm’n,
“Tests or devices” include
“any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate 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.” 42 U. S. C. § 1973b(e).
As this Court recognized in South Carolina v. Katzenbach,
See United States v. Sheffield Bd. of Comm’rs,
Allen was argued along with Fairley v. Patterson, 393 U. S. 544 (1969) (§ 5 applied to a change from district to at-large election of county supervisors), Bunton v. Patterson,
Although the majority today agrees that §5 is not limited to only the changes covered in our earlier opinions, see ante, at 502, it nevertheless attempts to fit today’s changes into one of the earlier models, see ante, at
U. S. Commission on Civil Rights, The Voting Rights Act: Ten Years After, at 69 (“The end of formal barriers brought about by the Voting Rights Act resulted in an immediate increase in minority registration”); H. R. Rep. No. 94-196, p. 6 (1975) (“Prior to 1965, the black registration rate in the State of Alabama lagged behind that of whites in that state by 49.9 percentage points. In 1972, that disparity had decreased to 23.6 percentage points”).
“[I]n modern-day voting rights cases such as this one, . . . racial discrimination will more than likely not show itself in the blatant forms of the past but instead will be subtle and sophisticated ....” App. to Juris. Statement of Appellant Presley 37a (Thompson, J., concurring in part and dissenting in part).
See Dougherty County Bd. of Ed. v. White,
“After extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of §5.” Georgia v. United States,
“Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the ‘broad interpretations to the scope of Section 5’ in Allen and Perkins v. Matthews.” Dougherty,
“[T]he legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found ‘virtual unanimity among those who [had] studied the record,’ S. Rep. No. 97-417, p. 9 (1982), that § 5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision.” NAACP v. Hampton County Election Comm’n,
Congress recognized that “since the adoption of the Voting Rights Act, covered jurisdictions have substantially moved from direct, overft] impediments to the right to vote to more sophisticated devices that dilute minority voting strength,” S. Rep. No. 97-417, p. 10 (1982), and that §5 was intended to be responsive to this shift:
“Following the dramatic rise in registration, a broad array of dilution schemes were employed to cancel the impact of the new black vote. Elective posts were made appointive; election boundaries were gerrymandered; majority runoffs were instituted to prevent victories under a prior plurality system; at-large elections were substituted for election by single-member districts, or combined with other sophisticated rules to prevent an effective minority vote. The ingenuity of such schemes seems endless. Their common purpose and effect has been to offset the gains made at the ballot box under the Act.
“Congress anticipated this response. The preclearance provisions of Section 5 were designed to halt such efforts.” Id., at 6.
On September 10,1971, the Department of Justice first adopted regulations implementing §5’s preclearance provisions. S. Rep. No. 94-295, p. 16 (1975); see 36 Fed. Reg. 18186 (Sept. 10, 1971); 28 CFR pt. 51 (1972); see also Georgia v. United States,
The District Court was also wrong to exempt the Common Fund Res- olution from § 5 preclearance on the ground that "the common fund resolu- tion was, in practical terms, insignificant in comparison to the entire Com- mission's authority . . . ." App. to Juris. Statement of Appellant Presley 19a. This is clearly the wrong test in light of our earlier cases, in which we have said that even "minor" changes affecting elections and voting must be precleared. Allen v. State Bd. of Elections,
The District Court approved a consent decree that provided, inter alia, for an increase in the number of Etowah County Commissioners in order to remedy the unlawful dilution of black voting strength caused by the prior at-large election system. See Dillard v. Crenshaw County, Civ. Action No. 86-T-1332-N (MD Ala., Nov. 12, 1986); ante, at 496. The decree expanded the Commission to six members, all of whom would eventually be elected from single-member districts. See App. to Juris. Statement of Appellant Presley 5a. The consent decree specified that the commissioners elected in 1986 were to have the same duties as the four holdover commissioners. Ibid, (decree provided that the two new commissioners “ ‘shall have all the rights, privileges, duties and immunities of the other commissioners, who have heretofore been elected at large’”). In August 1987, however, the commission passed the Road Supervision Resolution, which authorized the four holdover commissioners to continue to exercise authority over road operations in their districts, but which assigned nonroad duties to the two new commissioners. Id., at 6a. On the same day, the same commission adopted a second resolution, the Common Fund Resolution, which abolished the practice of allocating road funds to districts and created a common fund, thus transferring authority for determining funding priorities from the individual commissioners to
The Court is strangely silent about the first half of the Etowah County majority’s response to the election of Commissioner Presley. The logic of its analysis would lead to the conclusion that even the Road Supervision Resolution is not covered by § 5, but one cannot be sure because the Court recognizes that an otherwise uncovered enactment “might under some circumstances rise to the level of a defacto replacement of an elective office with an appointive one.” Ante, at 508. Despite the Court’s overriding interest in formulating “workable rules to confine the coverage of § 6 to its legitimate sphere,” ante, at 506, the scope of that exception must await future cases.
According to one judge on the three-judge District Court, the change “was adopted to eliminate a practice that had proved inefficient and conducive to abuses ... [and] eventually resulted in a criminal indictment of one of the commissioners.” App. to Juris. Statement of Appellant Presley 25a (Hobbs, J., concurring).
In addition to the comment by Congressman McCulloch quoted, supra, at 519-520, the Court also quoted from a then recent study of the operation of the Voting Rights Act by the United States Civil Rights Commission, as follows:
“ ‘The history of white domination in the South has been one of adaptiveness, and the passage of the Voting Rights Acts and the increased blackregistration that followed has resulted in new methods to maintain white control of the political process.
“ ‘For example, State legislatures and political party committees in Alabama and Mississippi have adopted laws or rules since the passage of the act which have had the purpose or effect of diluting the votes of newly enfranchised Negro voters. These measures have taken the form of switching to at-large elections where Negro voting strength is concentrated in particular election districts, facilitating the consolidation of predominantly Negro and predominantly white counties, and redrawing the lines of districts to divide concentrations of Negro voting strength.’” Perkins v. Matthews,400 U. S., at 389 .
In Russell County, the voters continue to elect county commissioners, but the most significant power previously held by those commissioners has been shifted to the county engineer, who is appointed by the Commission. The effect of this change, as in Bunton v. Patterson,