Reno v. Bossier Parish School Board

ATTORNEY PARISH RENO, GENERAL BOSSIER BOARD

SCHOOL 6, 1999 April 26, 1999 Reargued No. 98-405. October Argued Decided 24, 2000* January Bd., Parish School 98-406, Price et al. v. Bossier *Together with No. also on appeal from the same court. calía, Court, J., Part II of which was opinion

S delivered the unanimous, I, Rehnquist, III, joined by IV were and Parts and of which Thomas, O’Connor, Thomas, J., J., Kennedy, C. and JJ. filed and Souter, J., concurring concurring opinion, p. opinion filed an post, 341. Ginsburg, Breyer, Stevens, in in and part dissenting and which part, JJ., Stevens, J., dissenting opinion, in which joined, post, p. 341. filed a Ginsburg, J., Breyer, J., joined, post, dissenting opinion, 373. filed p. post, p. 374. Q.

Paul R. the cause reargued appellant Wolfson was Solicitor No. 98-405. On the on briefs reargument General Waxman. Mr. on the briefs With Wolfson Acting Waxman, At- were Mr. Assistant original argument torney Deputy Underwood, Lee, General Solicitor General Gross, L. Mark and Louis E. Peraertz.

Patricia A. Brannan reargued the cause for appellants Bor- were John W. 98-406. With her on No. the briefs kowski, Arnwine, Henderson, Barbara R. Thomas J. and Edward Still.

Michael A. Garvin in both the cause for reargued appellee Thompson, on the brief were David H. him cases. With Craig S. E. Lerner, Michael Rosman. delivered the of the Court. opinion

Justice Scalia § of the These eases whether 5 present Voting question 42 U. S. C. amended, Act of 79 Stat. Rights

323 prohibits redistricting plan preclearance 1973c, enacted nonretrogressive purpose. with a

I present us, This is the time the cases are before second history procedural we thus recite the facts and every political brief. Like other subdivision of State history Louisiana, Bossier because of its of discrimi- Parish, natory voting practices, jurisdiction is a covered §§ 1973b(a),(b); Voting Rights 1973c, Act. See U. S. C. (1965). Reg. prohibited Fed. from en- It is therefore acting any change “voting qualification prerequisite ain or practice, voting, procedure respect standard, or or voting,” pre- obtaining without first either administrative Attorney judicial preclearance clearance from General from for the United States District Court District Columbia. U. 1973c. S. C. Jury governed by

Bossier Parish is a 12-member Police single-member 4-year elected from In districts for terms. early Jury 1990’s, the Police set out to redraw its elec- demographic changes toral districts in order to account for adopted reflected the decennial census. it a re- 1991, In districting plan plan which, effect, like con- the then in majority-black although up tained no blacks made districts, approximately parish’s May population. 28, 20% of the On Jury districting the plan 1991, Police to submitted its new Attorney Attorney the two General; later, months Gen- granted preclearance. eral (Board)

The Bossier Parish School is constituted Board Jury, in the same fashion as the Police and too undertook During to redraw its districts after the 1990 census. George redistricting, appellant-intervenor course of that president chapter Price, of the local the National As- (NAACP), People sociation for the Advancement of Colored proposed adopt plan majority-black that the Board controversy, the districts. In the some 1992, fall amid rejected adopted suggestion the Police Price’s Board Jury’s redistricting plan its own. redistricting January 1993, its

On the Board submitted Although plan Attorney preelearanee. for General plan when Attorney precleared had the identical General Jury, interposed ob- a formal the Police she submitted asserting jection plan, that “new informa- Board’s by appellant- specifically, plan proposed the NAACP tion”— are “black residents Price—demonstrated that intervenor compact sufficiently geographically so as to numerous and App. majority single-member districts.” constitute a two Attorney p. 235a. 98-405, Statement in No. Juris. compel attempt Board to General disclaimed “adopt any particular plan,” that the Board but maintained unnecessarily adopt plan limits the was “not free opportunity minority candidates to elect their voters Ibid. choice.” request for Attorney the Board’s

After the denied General ju- present action for the Board filed the reconsideration, preelearanee plan Dis- United dicial States 5 of the trict Court for the District of Section Columbia. Voting Rights preelearanee proposed of a Act authorizes voting change will not have the “does not right abridging denying to vote on have the effect 1973c. Before account of race or color.” 42 S. C. U. appellants Court, that the Board’s District conceded prohibited it did not not have a under since did “effect” (In position minority v. United worsen the Beer voters. (1976), pro- plan has a States, that a U. S. 130 we held appel- retrogressive.) Instead, hibited “effect” if it is they argued pre- First, lants made two distinct claims. by plan, Board’s clearance should be denied because the many creating majority-black it should districts as § Voting Rights dis- Act, which bars violated 2 of the create, they criminatory voting practices. that, contended Second, although plan retrogressive effect, the Board’s would have no § it it a dis- nonetheless violated because was enacted for criminatory “purpose.” granted preclearance. District Court Bossier Parish (DC 1995). Supp. 434 As to Reno,

School Bd. v. 907 F. appellants’ first of two the District held that it claims, Court deny proposed voting preclearance change could not of a § simply change Moreover, under 5 because the 2. violated “[from prevent doing] indirectly in order to the Government directly,” what it cannot do District Court stated prove permit would “not section evidence discrimi natory purpose Id., under at As the sec section 5.” 445. appellants’ ond of the District Court concluded that claims, plan proving had borne its Board burden the 1992 legitimate, nondiscriminatory adopted purposes: for two (since preelearance prompt plan to assure the identical had precleared Jury), easy been for the and to Police enable im (since plementation plan, adopted unlike the NAACP’s lines). proposed required plan, redrawing precinct no Appellants jurisdictional Id., at 447. filed statements this probable jurisdiction. and we Court, noted Reno v. Bossier (1996). Bd., Parish School 517 U. S. 1232 appeal, agreed On pro- we with the District Court that a posed voting change preclearance simply cannot be denied disagreed because it proposition violates §2, with the (but nonretrogressive) that all evidence of a dilutive effect by forbidden was irrelevant to whether the Board en- retrogressive acted with a forbidden 5. Reno v. Bossier Parish Bd., 520 U. School S. 486-487 (Bossier (1997) I). language Parish Since some in the Dis- opinion trict Court’s left us uncertain whether the court had applied proposition fact decision, in its we vacated proceedings pur- remanded for further as to the Board’s pose plan. adopting light Id., the 1992 In 486. of our disposition, open question we left the additional “whether

326 §5 purpose beyond inquiry ever extends the search retrogressive pur- intent.” Ibid. "The existence of such pose,” §5, to be said, we “and its relevance are issues decided on Ibid. remand.” comparatively remand, Court,

On the District brief opinion relying clarifying, opin- on, its extensive but earlier (DC 1998). again granted preclearanee. Supp. ion, 7 2d 29 F. response our the existence First, invitation address discriminatory nonretrogressive purpose, of a but Dis- summarily trict “the record will not Court concluded that beyond presence support a conclusion that extends retrogressive Id., absence of at 31. It noted that intent.” “imagine one that a ‘non- could a set of facts would establish retrogressive, discriminatory, purpose/ but but nevertheless imagined present those are not here.” Ibid. The Dis- facts open question our- trict Court therefore left that we had open namely, purpose selves left on remand: whether the inquiry beyond retrogressive intent. extends the search for length, greater

Second, considered, District Court plan ques- impact how bore dilutive of the Board’s retrogressive tion whether enacted the with a the Board applying concluded, intent. It test we artic- multifactor Arlington Housing Heights Metropolitan ulated Devel- (1977), Corp., allegations opment 429 U. of dilu- S. discriminatory tive effect were insufficient and of animus retrogressive Supp. 2d, at 31-32. establish intent. 7 F. appel- jurisdictional In in this Court, their statements lants that the District conclusion contended, first, Court’s that there was no evidence of but nonretro- clearly gressive second, erroneous, prohibits preclearanee Voting Rights of a redis- Act tricting plan discriminatory with a nonretro- enacted gressive challenge purpose. Appellants the District did was no evidence retro- Court’s determination there gressive again jurisdiction. 525 probable intent. noted We (1999). U. S. 1118

H-< J—i proceeding dispose Before we of chal merits, must a lenge jurisdiction. to our that these Board contends plan again cases moot, are now since its 1992 "will never any used purpose.” be for Motion to Dismiss or Affirm 9. Under law, Louisiana school board are members elected 17:52(A)(West 4-year to serve terms. La. Rev. Ann. Stat. 1995). appellants jurisdictional One month after filed appeal, statements for this for scheduled 1998 election place. the Board took The next election scheduled will appellants 2002, occur until concede, which time, upcoming data from the decennial census will be available required by and the Board will be our “one-man-one-vote” precedents plan place. apportionment to have a new Ac cordingly, appellee argues, declaratory the District Court’s judgment respect plan longer the 1992 no dispute longer presents moment and the "case no a live controversy” purposes for of Article III of the Constitution. (1975); Newkirk, Preiser v. 395, 401 Green, U. S. Mills v. (1895). 159 U. 651, 653 S.

Appellants contingencies posit several in which plan including put resigna- Board’s 1992 would be to use— tion or death of one of the 12 before Board members agree upon replacement and plan failure to the 2002 They preclear- election. also if were to hold that, assert we improper, they injunction voiding ance "could seek” an ordering plan special elections held under the 1992 Appellants Opposing election, Brief for et Motion Price al. “might to Dismiss or be an Affirm and entitled” such injunction, Appellant Opposition Brief for Reno in to Motion pause to Dismiss or Affirm 2. We need not to consider possibility speculative whether the of these somewhat keep uncertain events sufficesto cases since in at alive, these continuing respect plan probable least one the 1992 will have challenge subsequent §2, it, effect: Absent a under successful quite predecessor plan rather than the 1980 contains —which districts —will serve as the baseline different against for the will be evaluated which next voting plan appellee’s (and how) Whether preclearance. precisely purposes baseline, and, if so, fixture from the represents change plan effect, on whether whether it is will retrogressive depend of the 1992 preclearance proper. then, to the merits. turn,

We

I I I raised in their the claims two initially Appellants press first, fac- that the District Court’s statements: jurisdictional tual conclusion .that there was no evidence of discrimina- erroneous, and but intent was tory nonretrogressive clearly that of the Act second, pre- Voting Rights prohibits clearance of with a discrimi- enacted redistricting resolution but Our natory purpose. nonretrogressive claim to address the first. the second renders it unnecessary When considered in our interpretation light longstanding § 5 to vote-dilution “effect” in its prong application § the that the claims, the of 5 leads to conclusion language §of 5 dilution. covers prong retrogressive “purpose” 5,§ under earlier, As obtain noted in order to preelearance that the a covered must demonstrate proposed jurisdiction have the “does not have the and will not change purpose vote on account effect of or the right denying abridging § or A covered race color.” U. S. C. 1973c. jurisdic- first, that tion, must make two distinct therefore, showings: the have the ... of “does not deny- proposed change purpose the of race or or to vote on account ing right abridging have color,” that “will not second, the change proposed on ac- effect of the to vote the or denying abridging right of race or The covered bears count color.” jurisdiction I, Bossier Parish burden on both See persuasion points. 51.52(a) § 28 CFR S., 520 U. at 478 (judicial preelearance); (1999) (administrative preclearance). (1976),

In Beer v. United 425 U. this Court States, S. meaning requirement addressed the of the no-effect allegation pre- context of an of vote The case dilution. question reapportionment plan sented the whether nonretrogressive would have a effect on rights preclearanee. of black voters should be denied Reasoning light that 5 must be read in of its “insuring] voting-procedure changes that no be made would retrogression position would lead to a of racial respect minorities with to their effective of the elec- exercise legislative reapportionment toral franchise,” we held “a position respect that enhances the of racial minorities with to their effective exercise of the electoral franchise can hardly diluting abridging right have the ‘effect’ of or meaning vote account of race within the Id., of 5.” In other words, 141. we concluded that, in context § challenge, phrase abridging of a “denying right specifically, vote on account of race or color”—or more phrase “abridging the context of a claim, vote-dilution right the to vote on account of race or the color”—limited qualified, retrogressive term it “effect,” to effects. Appellants qualifying “purpose,” contend that in the term very phrase the same impose does not a retro- limitation to gression phrase “abridging right e., that the the to vote —i. on retrogression account of race or color” means when it generally modifies “effect,” but means discrimination more “purpose.” simply when it modifies thinkWe this is an un- recasting tenable construction of text, effect the phrase purpose “does not have the and will not have y effect of a” read purpose “does not have of and will not have the past, effect of x” As we have in the we refuse adopt a construction that would mean- attribute different ings phrase depending to the same sentence, in the same object on modifying. Corp. which it is See BankAmerica (1983) give (declining States, United U. S. meanings phrase it different to the “other than” when modi- clause). and “common carriers” in the same fied “banks” point give purpose Appellants prong out that we did meaning prong 5 a the effect in Richmond broader than (1975). States, v. United 422 U. S. 358 That case involved requested preelearance proposed annexation that would for city Richmond, population of the have reduced the black although Virginia, that, from 52% to We concluded 42%. may creating political had the annexation have effect “fairly long percentage blacks, unit with a lower so as community Negro reflect[ed] strength ex as it of the § 5. ist[ed] Id., at after the it did not violate annexation” interpretation effect 371. We reasoned this peculiar pre prong justified by of was circumstances sented in annexation cases:

“To either to all such hold otherwise would be forbid require, price approval annexations or to as the community assigned annexation, be that the black proportion before, hence same of council seats permanently overrepresenting under- perhaps them community,including representing other elements in the are un- the nonblack in the annexed We citizens area. willing Congress hold that either conse- intended §5.” quence enacting Ibid. §5's impose

We a similar limitation refused, however, purpose prong, stating preelearance could be denied jurisdiction acting effect- when the with the ing percentage population, even the black reduction in jurisdiction's though the action it could not be denied when merely had Id., 378-379. effect. acknowledged a dis- created

It must be that Richmond § continuity purpose prongs effect of 5. We between the and regard nothing that, however, more than an ex necessitate prong upon particular limitation the effect the context avoid the invalidation of all annexations annexation —to minority proportion areas with a lower voters than annexing certainly unit. The case for the does stand proposition purpose prongs that the have fun- and effect damentally meanings requiring different latter retro- —the gression, urged and the former not—which is what is here. approved redistrieting Richmond, effect hypothetically disapproved purpose, were both retro- gressive. necessary exception We to make found an retrogressive-e/feci principles, normal not to normal retrogressive-purpose principles, permit in order to routine light upon annexation. That little sheds issue before us here.

Appellants’ only justification giving pur textual pose prongs meanings and effect is that different do purpose prong otherwise “would reduce the 5 to of Section Reargu Appellant trivial matter,” Brief for Federal on “effectively delet[e] ‘purpose’ prong,” 13; ment would Reply Appellants Reargument Brief for Price et 3; al. give purpose prong would reach, “a trivial limited incompetent retrogressor,” to the case of the Reply Brief Appellant for Federal 9. If this if it were were true —and adequate justify giving very same words a different meaning qualifying “purpose” qualifying when than when expect appellants “effect”—one would to cite at least some instances applied in which this Court such muscular con with, barring struction to the innumerable statutes conduct 192(d) § particular “purpose g., or See, effect.” e. 7 U. S. C. (prohibiting any purpose sale of “for the or article controlling prices” the effect manipulating or 1467a(e)(1)(A) meatpacking industry); (barring 12 U. S. C. savings holding companies engaging and loan from activity subsidiary savings on behalf of a association “for evading any regula or with the effect of law association”); applicable tion savings to such C. U. S. (1994 541(b)(3)(B) III) Supp. (prohibiting ed., cable fran chising any requirement imposing from authorities that “has restricting, purpose prohibiting, limiting,

the or effect of conditioning provision of a service the telecommunications thereof”)» They operator a cite not cable or an affiliate single one, a and are aware of none. we Congress enough enacts a statute that,

It is true whenever having purpose or effect of the that bars conduct “the separate application entirely that of purpose prong from has regard unlikely prong only that the to conduct effect purpose to “the effect of x”— has “the of x” but fails have present “incompe- context, the conduct of a so-called retrogressor.” purpose prong has tent value effect, however, even when it not cover additional conduct. does regard purpose conduct has “the of x” and With to that both only prove “the effect that the x,” of the Government need purpose prevail. in order to conduct at issue has “the of specific jurisdiction §5, In the where the covered context persuasion, the re- has burden of Government need showing jurisdiction’s prima fute that a the covered facie retrogressive pur- proposed voting change does not have preelearance pose in to it can order for be denied. When necessity countering jurisdic- spared so, do it is regarding retrogressive which, tion’s evidence actual effect— undertaking. complex in This eases, vote-dilution is often a advantage, plus incompe- ability to reach malevolent may represent a to the tence, not massive addition effect separate prong, enough justify is existence but it purpose prong what this and is no less than statute, in many justifies separate provision in existence such other laws.1 is Justice Souter easier "assuming] purpose criticizes us for Post, (opinion n. 10

prove rights than effect... cases.” from our discus concurring part). As is obvious part dissenting text, always prove, sion we do not is easier suggest (which sometimes be “pur force simply may that it suffices give necessity English to the lan pose” prong without violence doing is Justice Souter Indeed, “intent to dilute guage). acknowledges readily conceptually simple, abridgment-in-fact whereas dilutive Post, at 367. independently defined and identified intent.” dilutive bottom, At our disagreement reading appellants’ §5 rests not their textual upon analysis, upon opposi- tion to our in Beer. do not holding they explicitly Although overruled, contend that Beer should be all but do so they (as that it would be to we “untenable” conclude by arguing Beer) did in vote on that the the to “abridging right phrase account § of race or in 5, color” refers to only retrogression Brief for Federal on in1, Reply Reargument Appellant light of the fact that in the identical elsewhere virtually language indeed, Act —and Amend- Fifteenth Voting Rights ment —has never been read to refer to retrogression. only §2(a) (“No 1973(a) See § of the 42 Act, U. S. C. Voting Rights shall be or State voting [practice] by any imposed applied or in a subdivision in a manner which results de- political nial or the United citizen of abridgement right States Const., to vote account of race or color ..U. S. (“The § 1 Arndt. citizens of United States right vote shall not be denied or the United States abridged by or State race, color, on account of condi- by any or previous servitude”).2 tion of The term however —whose “abridge,” §3(e) Act, Appellants also cite Voting Rights which provides, with regard right to a court that found a to vote has violation guaranteed by Amendment, “the Fourteenth or Fifteenth that court . . . jurisdiction shall retain ap for such as it deem period may propriate and during such no from that period [practice] different voting in force or effect at the time en was commenced shall be proceeding forced unless and until [practice] the court finds that such does have and will right not have the denying abridging effect 1973a(e). to vote on account of race or color . . . .” U. S. G. This provision does not assist it is dear that appellants’ case because not at all it confers the redistricting. power deny approval to nonretrogressive That is say, that, it may well once a court has down contemplate struck an unconstitutional practice prac relief with to that granted regard tice, may assume for that jurisdiction a function identical that of the District Court for the District of in 5 preclearance proceedings. Columbia This is suggested by jurisdic the fact may that the State avoid the court’s General; tion in Attorney this regard by from the obtaining preclearance §3(c), §5, and that pro like explicitly open possibility leaves posed change approved challenged the court can be as unconstitutional meaning International “shorten,” see Webster’s New core is (2d 1950); Dictionary Heritage Dictionary 7 ed. American (3d comparison. makes 1992) necessarily It entails ed. — voting “abridges” suggest practice no sense right with which to com- baseline to vote without some proceedings preclearance practice. In pare the —which changes specifically with uniquely deal proposed quo the status baseline is procedures —the change “abridges right to vote” changed: If the to be preclearance and the quo, denied, is relative to the status be) (however discriminatory may in quo it remains status § proceedings, by con- 2 Amendment effect. In or Fifteenth (much changes only com- but more which involve not trast, comparison quo monly) must be made itself, the status quo hypothetical If the “re- alternative: status with a “abridgefs] right [an] abridgement to vote” in of the or sults ought right vote]” [the to vote right to what the to relative changed. reading quo itself must be Our be, to the status retrogression referring only 5, “abridging” to in but as §2 generally in the Fifteenth more and to discrimination differing which the to the contexts in Amendment, faithful term is used.3 Ibid. We of course intimate no holding on this "subsequent a action.” §3(c) character of with but limit our conclusion to the point, nonprobative eases.

regard present the issue 3 Fifteenth Even if 5 did not have a baseline than the Amend different ment, §5 parallel be read in appellants’ argument should simple fail for the reason that we have Fifteenth Amendment would See violates the Fifteenth Amendment. never held that vote dilution States, (1993) 146, 159 Quilter, (citing Beer v. Voinovich v. United 507 S. U. (1976)). 142-143, Indeed, Sou- 425 U. S. contrary to Justice n. assertion, post, (opinion concurring part n. dissent tee’s at v. Gomillion much. “suggested” have never even ing part), we (1960), a redraw bound Lightfoot, proposal 364 U. S. 339 involved Alabama, all but 4 or of its 400 Tuskegee, aries so as exclude id., Our white voter. See at 341. single black without excluding voters deny voters the to vote in right black proposal conclusion that the would Amendment, had violated Fifteenth elections, and municipal therefore dilution, appear that does not concept with racial vote nothing do In another to our argument applies equally holding in Beer, §5 that our would re- object appellants reading the District Court quire General Attorney preelear with a effect or proposed voting changes or even with both. That strikes as an purpose, appellants inconceivable because refuse to they prospect accept the limited that we have said has in meaning preclearance the vote-dilution context. It does not approval represent it is more a determi- than voting change; nothing nation is no more dilutive what than voting change and therefore cannot be in advance replaces, stopped under the of §5, extraordinary burden-shifting procedures but must be attacked the normal means of through action. As we have noted, in vote-dilution cases repeatedly § 5 under prevents nothing backsliding, preclearanee 5§ affirms but the absence Bossier nothing backsliding. I, Parish 520 U. S., 478; Johnson, at Miller 515 U. S. 900, 926 (1995); Beer, 425 S.,U. 141.4 This explains why our voting-rights opinions v. State Bd. later. See Allen years until nine Elections, (1969). 393 U. S. As for other ease relied upon 544, 569 of Bolden, by in Mobile v. U. Souter, Justice plurality opinion S. 446 not only does that not (1980), Amendment suggest that the Fifteenth dilution, covers vote it suggests rejecting opposite, appellees’ vote-dilution claim in the to following appellees’ terms: “The answer argument is that... their freedom to vote been has not denied abridged anyone. by right Fifteenth Amendment to have does not entail the Negro candidates elected .... in Mobile Having Negroes found that ‘register hindrance,’ and vote without the District and of Court Court Appeals in believing were error in appellants pro- that the invaded Id., tection of that Amendment in the case.” see also 65; present at id., at n. 84, (characterizing in judgment) (Stevens, J., plu- concurring rality opinion as concluding that “the applies only Fifteenth Amendment ballot”). to practices that directly affect access to the 4 In just §5 search of support argument for the not back prevents that sliding dilution, vote dilution but all forms of vote Justice Souter Post, embarks a upon lengthy expedition legislative history. at 362- into 367 (opinion concurring emp- in and part He returns dissenting part). tyhanded, since he point Congress can nothing suggesting §5 dilution. thought covered both retrogressive nonretrogressive Indeed, Voting it is doubtful whether the the Congress that passed preelearance failing is con- obtain consequence of

sole deny preelearance to a quo. To tinuation status retrogressive matter how unconstitutional not that is —no quo leaving that is may a status effect risk be—would voting change example, a in the case of For even worse. nonretrogressive discriminatory purpose and a but denying discriminatory the result effect, ameliorative but quo preserve a with more preclearance be to status would discriminatory proposed change. effect than the § by suggesting 5 extends to sum,

In purposes, appellants nonretrogressive ask vote-dilutive I: to to do in Bossier Parish us what we declined to do §2 §5 by “shiftfing] the between blur the distinction nonretrogression dilution, . vote and . . 5 from focus of existing jurisdiction’s changing] the from benchmark hypothetical, plan.” 480. S., undiluted 520 U. at plan to a reading the “substantial” would also exacerbate Such already preclearance procedure federalism costs (1999), Lopez Monterey County, 266, 282 exacts, 525 U. S. §5’s raising perhaps about con- to the extent concerns stitutionality, supra, impor- at 926-927. Most Miller, see tantly, light holding appellants’ Beer, our however, in reading support language 5.5 no finds Jus- vote Rights Act even had the racial dilution mind. As practice tice Souter acknowledges, concept this Court until did address post, 364, history at n. and the the 1969 exten- legislative see post, Souter, Act, 364-365, Justice sion of the see refers quoted “new, at-large ways elections and consolidation of unlawful counties as the Negroes’ developed passage diminish franchise” since of the Act. (1969). 91-397, H. R. No. 6-7 Rep. pp. 5 Justice Souter Department’s asserts that Justice longstanding “ft]he practice of that it determined to have an refusing preclear changes Beer," unconstitutionally discriminatory purpose, both before and after Post, (opinion part entitled deference. at 368 in and dis concurring post, (Stevens, accord, J., senting part); in at 373 But of dissenting). before Beer course that Justice took the even Department position limited, cases, prong redistricting retrogression. was effects Indeed, had the basis for its position preclearance been denial

IV Notwithstanding explicitly I that Bossier Parish the fact day” “le[ft] open question whether ex- for another discriminatory nonretrogressive intent, tends to see but appellants S., 486, at that two of this Court’s U. contend prior already have reached the conclusion that it decisions appellants Beer, does. this First, that, note Court stated legislative apportionment that “an ameliorative new cannot apportionment violate 5 the new so unless itself discrimi- nates the basis of race or color as to violate Constitu- sug- Appellants S., tion.” U. at contend that this 141. gests that, at least in cases in which the covered some jurisdiction discriminatory nonretrogressive acts with a but purpose, jurisdiction dilutive be denied covered should preclearance acting unconstitutionally. because it is implausible interpretation.

thinkWe that a At the most time Beer it decided, had not been established that discriminatory purpose discriminatory as well as effect was necessary compare for a constitutional White v. violation, Regester, (1978), Washington 755, U. S. 765-766 (1976). Davis, 229, 426 U. If the S. 238-245 statement appellants suggest, Beer had meant what either would (without anticipating argument) have been that later hold- Beeps (since ing, gutting holding or else would have been showing nonretrogressive effect would have would, been constitutional violation and de- spite holding deny preclearanee). of Beer, have sufficedto plausible explanation A much more of the statement is it referred to a constitutional violation other than vote dilu- Beer, S., see 425 U. argued and was in its brief us as the before for denial, basis sustaining District Court’s see Brief United States States, 73-1869, in Beer v. United O. T. No. 17-18. We pp. rejected as position to the effects even more prong, and there is reason it in reject cases, present much upon whose outcomes as depend (as implication one of our cases prior Department which we owe the deference) no upon a raw interpretation statute. consisting of a “de- specifically, a violation and, more tion— “abridgement.” right an Al- to rather than vote, nial” of though no less than claims, in the context of denial antibacksliding abridgment claims, the rationale context of (and §5 avoiding preservation of an even its effect of quo) suggests retrogression again should status worse “deny” arguably the word criterion, in that context be (unlike “abridge”) import comparison does the word not quo.6 the status any entirely clear event, it is that the statement

In pure dictum: The Government had made no con- Beer was reapportionment proposed at issue tention that though 142, at n. 14. And we S., 425 U. unconstitutional. subsequent quoted we have never cases, have the dictum in actually applied deny preclearance. Bossier it to See supra, Hunt, 481; at 517 U. S. I, Parish Shaw (1996) (Shaw II); S., 924. We have made Miller, 515 U. today: pro- clear, hand, the other we reaffirm on what ceedings proceedings preclear apportionment to schemes constitutionality apportionment schemes consider entirely are distinct.

“Although Court concluded the redistrict- ing nonretrogressive, scheme at issue in Beer was Breyer Justice ... that if suggests that seems obvious Missis “[i]t (after requirement ‘moral enact sippi had enacted its character’ Act), a court have found ‘the Voting Rights ment of the 5 would applying to vote account of denying abridging right ... race,’ 0.4%, permit, if intended to rather than Mississippi say, even had 0.3%, age County register.” voting population of the black Forrest Post, however, above, As note our hold at 376 we (dissenting opinion). of an “denial” ing today consisting outright does extend violations vote, as in of an individual’s an right opposed “abridgement” event, attempted In if had to enact a Mississippi dilution cases. precluded “moral character” it would have been requirement §4, from so under which bars certain tests and de doing types and the issue of therefore never preclearance vices would altogether, (c). 1973b(a)(1), §§ have arisen. See 42 U. S. C.

339 plan, hold was immune reason, did not that the for that Voting challenge. Indeed, from constitutional . . the . Rights reappor- Act law clear that a and our case make §5 enjoined plan may tionment still be satisfies 630, as unconstitutional.” U. 654 Reno, Shaw v. 509 S. (Shaw I) (1993) added). (emphasis City 125, also States, See Lockhart v. 460 U. S. United (1983) (describing holding 134 of Beer as follows: “Al- though plan may discriminatory, it new have remained regressive change.... nevertheless was not a the new Since degree against did not increase the of discrimination §5 it preclearance”); blacks, was entitled to Allen v. State (1969) (“Once Elections, Bd. 393 U.S. 549-550 §5 successfully complied approval State has with the requirements, private parties may enjoin the enforcement only attacking of the new enactment in suits its traditional § constitutionality...”). explicitly As we I, noted 5 Shaw judicial preclearance states that neither administrative nor subsequent enjoin “'shall bar action to enforcement’ of [a change voting practice].” (quoting S., at 654 U. 1973c). remedy fully C. U. S. That us un- available leaves by possibility preelear- produce troubled that 5 could unconstitutionally redistricting plan. ance of an dilutive preclearance appellants Second, contend that we denied discriminatory nonretrogressive pur on the of a basis (1987). pose States, Pleasant Grove v. United 479 U. S. 462 city pattern. That case involved an unusual fact Pleasant Dis Grove, at time of the which, Alabama— trict Court’s none inhabitants, had 32 black decision, registered city whom was to vote and of whose existence appear officials n. 2— unaware, id., to have been sought by parcels land, annex two one inhabited likely few whites, and the other vacant but be inhabited upheld whites in near District Court’s future. We city pur conclusion that the acted with pose city’s annexing rejecting contention land,

that it it was unaware of the could have done so because against whom could have existence black voters intended discriminate:

“[The city’s] argument as- is based on the incorrect sumption impermissible under can that an present looks relate circumstances. Section changes, present but to their not to the effects of impermissible Likewise, an future effects as well.... §5 anticipated purpose may as under relate to as well present circumstances. [the annexation] quite plausible mo-

“It is as see part, by impermissible purpose tivated, the of mini- just mizing voting strength. . . . This is future black impermissible purpose present as the dilution as (citations voting strength.” black Id., at 471-472 omitted). footnotes city’s

Appellants that we viewed the assert must have discriminatory purpose nonretrogressive because, as as but city contending the it lacked even dis- noted criminatory acting purpose, city the could have been voting strength any present residents, worsen the black However, since there at the were no black voters time. quoted passage suggests, did above we not hold that §5 retrogression, purpose prong beyond extends jurisdiction minority can rather held that a with no voters retrogressive present in- purpose, time, have a at the minority tending strength to worsen the of future holding way, Grove had voters. Put another our Pleasant nothing justify question whether, to do de- with the preelearance prong, purpose nial of on the basis of purpose retrogressive; instead, must be it involved question retro- whether the must be achieve gression jurisdic- at once in the ease of include, or could minority retrogression re- present tion with voters, with no (as compared gard operation plan proposed operation minority quo) against voters in the status new Beer, therefore, future. Like the dictum from Pleasant simply inapposite is Grove here. §5 prior holding light language

In of the and our prohibit preelearance Beer, we of a hold that does not redistricting plan enacted with a but non- retrogressive purpose. Accordingly, judgment of the District Court affirmed.

It is so ordered. Justice Thomas, concurring. sought preelearance

The Bossier Parish first School Board redistricting litigation issue in this almost years ago. ap- Department private seven Justice pellants opposed arguing throughout litiga- effort, this necessary majority-minority tion that a "safe” district is ensure the election of a school Ironi- black board member. cally, litigation pending, while this was three were blacks majority-white elected from districts to serve the Bossier Although Parish School are Board. these election results part they vividly not the fact that record, illustrate spawned litigation federal intervention this that unnecessary.

Justice Souter, with whom Justice Justice Stevens, Breyer and in Justice Ginsburg, join, concurring part dissenting part. § Rights Voting Under 5 of the Act of U. S. C. § jurisdiction preclearance required 1973c, a to obtain changes voting proposed to its laws a amend- must show that purpose, ment will not have a effect, and does not reflect deny abridge respect- or I the vote on account of race. § fully holding dissent1 from the that 5 is indifferent Court’s 1 1agree with the Court’s conclusion on the matter of mootness. racially discriminatory purpose long change so as a

to a voting strength minority law is not meant to diminish today’s existing has its decision below It is true that level. precursor States, U. S. sorts in Beer United (1976), redistricting only anticipated which holds retrogression in mi- preclearance effect is sufficient bar minority voting nority voting strength, however dilutive today’s power redistricting plan may But if otherwise be. symmetry Beer, is decision achieves a with the achievement merely The mistaken one of well-matched error. Court was retrogres- prong of 5 to Beer when it restricted the effect today wrong sion, is more when it limits Court even pur- retrogressive corresponding the clear text of 5 to the strong respecting Although policy pose. I adhere to the precedent statutory would re- interpretation and so recognized policy Beer, examine does not demand indefinitely, prior compounded mis- error be and the Court’s meaning requirement of take about the effects interpre- expanded by should not be an more erroneous even scope purpose prong. tation of the of the section’s pre- Congress Court’s determination that intended plan clearance (let free of dilutive intent not shown to be discriminatory) intentionally alone a shown to be merely highly not, however, uncon- It is also erroneous. vincing. very The evidence in eases shows that these Board) (School acted Bossier Parish School Board Board just vote, with intent to dilute the as it acted black judicial through that same intent of to a decades resistance desegregation exactly the sort order. The record illustrates majority-white part of relentless bad faith on the of voters § jurisdictions 5. covered to the The that led enactment Congress poses question why ever evidence all the would preclearance plan, permit have it all meant to of such and hardly Congress but invites the answer could have in- goes thing. substan- tended such While evidence tially purpose reading unnoticed on the narrow Court’s my prong crucial to resolution of these it way points up implausibility cases, but insistent in reading of the Court’s under 5.

I Arlington Heights Metropolitan Housing Develop- In (1977), Corp., ment this U. S. Court set out check- assessing going list of considerations for evidence to dis- criminatory background challenged intent: the historical of a impact specific decision, minorities, its relative on antecedent procedures, departures contempo- from normal events, rary Id., statements of We decisionmakers. 266-268. directed the District in en- Court follow that checklist quiring following into intent remand these cases, Bd., Reno v. Bossier Parish School 520 U. S.

(1997) (Bossier I). Arlington Heights enquiry The Parish following reveals the account of the Board’s School redis- activity tricting parish and of the character of the in which it occurred. general parish’s governance institution of is known Jury, representatives

as the Police a board of chosen from parish. districts within the After the 1990 census showed malapportionment among a numerical districts, those prepared districting plan, they Police Jurors a revised which Attorney submitted to the General of the United States request preclearance necessary for under of the Voting Rights jurisdiction, parish, Act before the a covered modify could its district lines. Based information Attorney Department then available to the Justice, parish General understood the shown that have the new pur- would not have the effect did not have pose abridging voting rights parish’s of the 20% black population, Jury plan pre- and the revised Police received parish’s fact, clearance in the In summer of 1991. as the Jury plan admitted, School Board has now the Police thus approved voting strength minority popula- dilutes the

tion, is, Plaintiff’s Brief on the discrim 12; Remand by rights minority partici abridging inates the voters to pate political process of their the and elect candidates (1986). Gingles, Thornburg choice. 30, 46-47 478 U. S. Jury population required Police The same shifts that the to do the reapportion required elected Board the School Jury Although approached the Police same. the Board had possibility devising joint plan of com- about the districts jury, jury Board, the mon to both Board and the rebuffed 83-84), App. (Stipulations see to Juris. 172a Statement History provides go the Board was forced to it alone. good might expected from this indication what have been endeavor. parties stipulated, ap-

As the had have the Board School plied energies its “limit or evade” for decades in an effort to obligation desegregate parish Id., its at 216a schools. 237). (Stipulation court first received a When the Board desegregate parish’s mid-1960’s, order to in the schools responded flagrantly era, with the tactics of that defiant 236-237), (Stipulations id., see at 216a-217a record continuing down to the discloses the Board’s obstructiveness degree During 1980’s,the time covered these cases. polarization makeup parish’s of racial schools 241-243), (Stipulations dispropor- id., rose, at 218a and the assignment faculty predominantly tionate black black 240). (Stipulation increased, id., schools While 217a-218a parish’s assignment superintendent testified that faculty predominantly black black schools came response parents’ positive requests ex- black black amples App. for their black who children, see leaders uniformly rejected claim and testified these eases in- parish’s desegregation decree, sisted in accord that, faculty throughout parish’s black were to be distributed stu- schools, black, to serve well as white, as models for id., see dents. at 326-327: 2 Tr. 126-128. intransigence

Other evidence of the on race cen- Board’s particular integration ters on the terms of the decree required since 1970 has the Board to maintain a “Bi-Racial Advisory up equal Review Committee” made of an number of black and white members order to “‘recommend to ways system unitary the ... Board to attain and maintain a improve parish.’” and to App. to education in the Juris. 111) (herein- p. (Stipulation Statement in 98-405, No. 182a Statement). App. Although rep- after to Juris. the Board overseeing desegregation resented to the District Court (testimony place, that the committee was in see 2 Tr. 16 Superintendent Lewis), actually William T. the committee only met two or three times in then with the mid-1970’sand only App. its black members in to Juris. attendance, see 112). (Stipulation Statement 183a In Board set up a “Community replace short-lived Affairs Committee” Despite “Bi-Racial Committee.” the Board’s resolution charging responsibility the committee “‘with of in- vestigating, consulting advising the court and school periodically respect pertinent board all matters unitary [sic] system,’” (Stipu- the retention of a ibid. school 114), lation the Board after disbanded the committee leading put three months because, it, as a Board member “ minority up ‘the tone of the committee mem- made of the becoming quickly bers of the in- committee turned toward 116). policy,’” “Policy,” (Stipulation id., volved in at 184a inevitably implicated by pur- however, was the committee’s (such pose, subjects and the of its meth- recommendations ods for more recruitment effective of black teachers placement throughout their system the school in accord with desegregation the terms of the decree, id., see at 183a-184a 115)) (Stipulation squarely fell within its mandate. It is unsurprising thus unitary that the Board has not achieved system day. school and remains under court order to this 239); (Stipulation App. (testimony id., See at 217a Davis). S. P. “Community appointed Af- its

About the time Board preclearanee sought from it under Committee,” fairs redistrieting plan Attorney before us now. for the General redistrieting tell us much Board’s efforts The course proposed plan. its Fol- it had mind when about what Jury, Police the Board was able lowing from the the rebuff being redistrieting timetable, no there a relaxed to follow the Board before 1994. While scheduled Board elections Jury plan once the At- adopted the Police simply have could precleared so, Board do torney it, the did not had General 11), just (Stipulation despite 147a App. to Juris. Statement Sep- proposal member at the Board’s from one Board such a meeting. the action was then taken on 1991, No 5, tember 89-90), although (Stipulations the at proposal, id., 174a noteworthy explanation it is inaction, for its Board issued no customary jury plan ignored the of Board’s that the some of concerns was in- districting one those concerns. Whereas cumbency protection, App. App. 251; to Juris. State- see cf. 26), (Stipulation jury plan pitted have ment the would 152a pairs against each other and created two two of incumbents id., resided, no incumbent at 181a-182a districts which 109).2 disregarded jury plan attend- (Stipulation The school containing two no ance and even included districts zones, 141). (Stipulations 24, Id., 174a, 151a, 88, at schools. 191a jury plan, variation in dis- moreover, called for total exceeding normally populations used to trict the standard person, principle, gauge of “one one vote” see satisfaction the 58); App. (Stipulation 147, 1 Tr. id., 231-232; at 162a-163a compact- of four of the standard measure its districts failed by cartographer, id., 174-176, ness used Board’s own considering down stepping While two of the incumbents were de at least one of those adopted plan, subsequently time the Board 103; Record, No. Doc. anything App. but firm. See cisions (D. C.), (joint portions of designations 60-61 pp. Civ. Action No. 94-1495 D. David 1 Tr. 85. Harvey); of of deposition noncontiguous elements, and one its districts contained App. 234-235. addressing plan own,

In need to devise a its redistrieting had Board hired the same consultant who Jury, Gary and the Board advised the Police Joiner. Joiner testimony) perfectly (according members to Joiner's were responsibility dilution in aware their to avoid vote accord- Voting Rights see Act, Record, ance with the (direct Doc. 38No. 5), testimony of it would he estimated that Joiner him 200 to 250 hours to devise a for the take between nearly doing spent year Board. The Board then little in public redistrieting, pri- about its met in while members vate In with Joiner consider alternatives. March George president parish’s Price, branch Na- People tional Association for of Colored Advancement (NAACP), superintendent parish wrote schools asking play redistrieting for a chance to some role in the process. App. Although superintendent passed 184. the the letter on to the the Board, Board took no action, superintendent responded neither the nor the even Board request. App. (Stipula- to Price’s to Juris. 175a Statement 93). August, again, tion In Price wrote this time in concert community with a number organizations, of leaders black seeking again opportunity express an views about the redistrieting process, as well a as about number of Board policies bearing desegregation. App. on school see 187-189; 94). App. (Stipulation also to Juris. Statement 175a Once again response. the Board made no

Being responsiveness, frustrated the Board’s lack of help then Price asked for the from national Re- NAACP’s districting Project, map showing which sent a him how two compact majority-black might districts be drawn 98). parish. (Stipulation Id., at 177a Price When showed map to a school district he was told official, it was un- acceptable it because failed to show all 12 districts. At request, Redistrieting Project provided Price’s then presented showing Price which plan districts, all 12 meeting, explaining that it September 3, 1992, Board at its majority-black drawing districts. possibility of showed 99-100). Board (Stipulations Several 177a-178a Id., at plan they not consider the NAACP said could members larger (Stipu- presented map, id., at 178a it was unless 100), legal cartographer and its the Board’s lation and both attorney, plan out parish dismissed the district advisor, precinct splits, (Stipu- required id., at 179a of hand because 102). lation implications evidence that other NAACP

There is According one proposal objectionable were to the Board. Henry Burns told him leader, Board member black personally representation on the he favored black while opposed the members idea.3 Board, a number of other Board Barry George App. According member Price, Board 142. Musgrove hostile to the creation told him that the Board was majority-black Id., at of a district. 182.4 public Although con- received no further the NAACP suddenly redistricting activity pace public sideration, the meeting, speeded up. September 17, 1992, At the Board’s possibility creating asking address without Joiner to any majority-black abruptly passed district, Board Jury App. adopt plan. Police statement of intent to 106). (Stipulation public At a Juris. Statement 179a-180a member, Hudson, when to ex Marguerite One other Board asked towns, in Plain one of the plain why Dealing, parish’s two the schools Plain black, love to live in predominantly people “[T]hose were stated: just would get big job, they And most of them don’t want Dealing.... Welfare, in Plain stay country, stay stay out there and on and rather Dealing.” App. 118. 4 If, 1 as the making denied the statement. See Tr. 56. Musgrove latter statement majority significance District Court suggested, Reno, 434, School Bd. uncertain, F. Supp. see Bossier Parish 907 (Bossier I), (DC 1995) Parish to the opposition 448 it was tantamount dilution; any event noth cure for there was in most obvious the admitted about the Bums ing ambiguous statement. by

hearing plan an over later, on the one week attended spoke against plan, crowd, flow of black voters number bearing presented petition over and with a Price Board minority signatures urging concerns. consideration spoke plan, I, No Bossier Parish one favor of (DC 1995), Supp. explained F. to the Board 434, 439 and Price preclearance Jury jury plan by the Police of the for use guarantee plan preclearanee no for the same (Stipulation App. Board. to Juris. 180a-181a Statement 108). meeting, at its October 1 Nonetheless, unanimously adopted Jury members of the the Police Board plan, with one the Board’s black member absent and (who just appointed member had been earlier to two weeks vacancy) abstaining. (Stipulation fill a Id., at 181a-182a 109). preclearanee The Board not submit the for did by Attorney January Id., General until 1993. 182a 110). (Stipulation

II significance by The of the record is enhanced under examining already in more detail mentioned several matters dispute, by testing as free from some of the Board’s stated refusing reasons plan, to consider NAACP looking critically resolving at the District Court’s reasons for disputed issues in the School Board’s favor.

A parties stipulate redis- for decades before this tricting sought the Board had to “limit or evade” its ob- ligation segregation obligation end in its an schools, specifically imposed by years ago nearly Court order yet fulfilled. The Board has conceded the discrimi- also natory impact Jury plan heavily falling of the Police “more on blacks than whites,” on Plaintiff’s Brief Remand Civ. (D. C.),

Action p. diluting No. 94-1495 D. and in “black voting strength,” stipulated id., at 21. Even without the history, the conceded would evidence of a corre- dilution be history, im-

spondingly intent. With grows more forceful plication speaks louder, intent and it impact aspects of the dilutive look at two still after a closer Jury plan. of the Police majority-black plan districts even includes no

First, though voting patterns Parish in Bossier residential and Thornburg v. conditions we identified in meet the three drawing opening Gingles, S., 50-51, the door to 478 U. put minority majority-minority on an voters districts Gingles equal footing The first condition is with others. minority group that that “the must be able to demonstrate large compact sufficiently geographically it is con- single-member majority Id., a stitute a district.” at 50. dispute that black voters in Bossier Par- Board does not satisfy joined stipulation ish this criterion. The Board reasonably parties “it was obvious that black-majority compact district could be drawn within Bos- City,” App. (Stipulation sier to Juris. 154a-155a Statement (statement 36); Barry see Tr. 60 of Board member also Musgrove), and that the NAACP demonstrated that two parish, App. such been districts could have drawn in the see 143).5 (Stipulation 192a to the sec- Juris. Statement As Gingles minority popula- conditions, ond and third that the politically majority-white tion be cohesive and that the block enough minority’s preferred be to defeat the candi- Gingles, supra, date, see at 51, the Government introduced expert testimony showing polarization such in Bossier Par- voting patterns. App. ish’s See to Juris. Statement 201a- by While the cartographer hired the Board stated the re during districting black was too process parish’s population dispersed district, majority-black acknowledged draw he later fact drawn, two App. such districts could be see to Juris. Statement 160a- 52, 53), (Stipulations 161a NAACP original plans Plans, plans also the an Cooper developed expert two alternative much, defendant-intervenors, demonstrated as see App. (Cooper 147). Plans); (Stipulation Juris. Statement 193a App. (declaration 207a 163-178 181-196); App. (Stipulations the some- Dr. Richard While Engstrom). acknowledging what limited data available for concluded analysis, expert that “African American voters are to have a realistic likely . to elect candidates of their choice the . . opportunity in which constitute a Board districts they majority Id., at 174.6 voting age population.” Second, the diluted black votes Police divid- Jury with common black communities interests ing neighboring in and around least the Parish’s at two of municipalities, the creation of a district.7 thereby avoiding majority-black id., at Castille III); id., (declaration See 154-156 J. George Davis). at 141 of S. Even Board’s P. own (testimony “ that conceded one of these instances cartographer ‘ap- ” to constitute to Juris. State- “‘fracturing,’” [ed]’ pear App. 138), ment 191a he which defined as (Stipulation “divid[ing] a has traditional lives in the ‘population eohesiveness, same area, has a general lot of [and] commonalties’... intent to . . . ‘[the] fracture that into population adjoining ” id., 133). white at districts,’ 189a-190a (Stipulation 6The parties agreed that black candidates for other offices have been id., able win from majority-white districts in the see parish, at 201a 180), (Stipulation but those instances all involved districts which the id., presence base, of an Air 196), Force see (Stipulation 206a-207a meant both effective of black voters was percentage considerably higher than and, the raw figures all suggested view of the successful candidates, black degree that the hostility black candidates among white was lower voters than in the rest of parish, App. see 181-132 (statement (statement of Jeff Darby), 133-134 Darby), Jerome 143-144 (statement Johnny Gipson). 7Counsel for the Board suggested in one of the Gov cross-examining experts ernment’s that one of dividing the instances of black commu nities arose from a state-law on the prohibition “splitting] existing Board’s corporate lines.” 2 authority Tr. 189. He offered no for that proposition. case, But in any the example expert did not involve gave dividing municipality, but including single district areas both within the mu and outside it. nicipality

B objected lawyer Board’s cartographer because split precincts NAACP plan unacceptable concedes that And the Board violation state law. yet to seek from the school boards were free precinct changes often did. successfully of their they juries police parishes, id., at 150a-151a 22-23). One of the Gov- See (Stipulations and the Board’s 214, 217, 354, ernment’s see experts, App. to consultant, see Juris. Statement own cartographic App. Indeed, 151a this 23), (Stipulation acknowledged practice. that the Board about the Joiner advised parties agree to the Police see Jury changes, option going precinct id., id., see at 89); at also 179a (Stipulation 174a (Stipulation that the him that 102), but Board never asked to pursue pos- id., 128).8 see at 188a Kessler in sibility, Judge (Stipulation the District Court therefore correct was surely Board’s claimed to divide was no inability precincts genuine See Bos- a with a obstacle to district. plan majority-black I, sier Parish 460-461 907 F. at (opinion concurring Supp., and part dissenting part). majority that it merely District Court stated was not the fact plan required splits,

that the NAACP that it a precinct required large splits number of that made it This is unappealing. claim untenable for First, several reasons. it to again explained assumes that the act be rejection of the NAACP than plan adoption rather of the Police Jury While the plan. NAACP see plan required precinct splits, App. 151), to (Stipulation Cooper Juris. Statement 194a-195a II plan, which also majority-black meeting included two districts traditional dis- 27, criteria, ibid., tricting and the establishment of a required single 14, 269-270, 277. majority-black just district would have see required App. Second, lawyer and more the Board’s importantly, cartographer stated they unacceptable told the Board the NAACP because it plan was them, all, split precincts split App. at not because it lots of see to 102), Juris. a (Stipulation leading supporter Statement 179a Board, Jury Police on see 1 Tr. and the Board’sinterim black plan on that score. agree member at the time see redistricting, App. splitting prospect of It becomes all the clearer that the precincts genuine reject plan no reason to the NAACP was (or any majority- creating to otherwise refuse consider districts) early on black when one realizes that from gave redistricting process thought Board’s serious adopting plan pré- required just that would such have splits. cartogra- cinct When the Board hired its Joiner as pher May pre- 1991, his estimate 200 to 250 hours to pare plan App. Board, for the see to Juris. 173a Statement 86), (Stipulation simply that there no indicated intent recently Jury plan borrow the Police devised build precincts Jury, possibility established the Police “[s]everal thought explored least,” Joiner could be hours App. It 271. seems obvious that from the start Board expected require precinct splitting, its and Joiner acknowledged testimony any plan strong in his “as that as” Jury plan districting Police the in terms of traditional cri- require precinct splits. Splitting pre- teria would Ibid. insuperable cincts onee became an obstacle the NAACP proposal majority-black made its to create districts.

O i- Despite sup- its view stated that the record would not port nonretrogressive discriminatory a of conclusion intent, majority “allegedly the District Court listed series dilu- impacts” point discriminatory “[t]hat tive said intent: plan some of the new schools, districts have no that the ignores respect attendance that boundaries, it does not com- outlandishly large munities of that there interest, is one compact, district, that several of them are there is not that contiguity, population a lack of deviations re- 5%) (± sulting jury greater plan from are than limits (DC 1998) imposed Supp. Louisiana law.” 7 2d 32 F. (Bossier II). The Parish District Court found this evidence probative attenuated,” theoretical, too to be

“too corroborating retrogressive evi- in the absence of intent attempt.” Ibid. But whatever of a “deliberate dence may be on issue of intent to cause force of such evidence nothing retrogression, or “attenuated” there is “theoretical” generally. significance showing as intent to dilute in its opinions in Bossier Parish If take the District Court we together Parish II and treat court’s I and Bossier covering nonretrogressive in- discussions on two tent, it is clear that court rested reasons finding plan’s support an dilutive effect could nonretrogressive discriminatory First, intent. inference thought the court inconsistent with the such inference expressed Johnson, in Miller v. U. S. view (1995), adopt plan that a refusal to maximize the number majority-minority support districts is insufficient alone to an inference intentional Miller is not on discrimination. already adopted point, Georgia Miller, In had however. minority plan clearly improved position voters by establishing majority-black question two districts. simply the State’s refusal create a third whether betrayed discriminatory Id., 906-908, intent. 923-924. eases, In these the issue of inferred intent did not arise upon rejection maximizing majority- of a the number of coneededly plan black districts a ameliorative had after already adopted; the been the issue arose on Board’s refusal majority-black a to consider districts when Gingles. possible more than one was such district under betrayed The issue here is not whether Bossier Parish discriminatory refusing purpose maximum create the majority-black districts, II, number see Bossier Parish (Silberman, supra, concurring), simply J., whether significant parish creating it was that the refused to consider majority-black points district at The refusal a dis- all. criminatory intent that the refusal to maximize Miller v. not show. Johnson did ground discounting

The District Court’s second for the Jury plan’s the of intent inherent in Police dilutive evidence finding legitimate, the effect was its Board had nondis- criminatory approving plan. evidence, reasons for The powerful showing is the Board had no however, already respect As I noted, such reasons. have Board’s existing precinct apparently pretextual. for lines supposedly legitimate other for the Board’s choice, reason Jury equally that the Police was a safe harbor under is5, Jury plan unlikely. If Police was a safe it had harbor, day Attorney precleared been safe from the General it Jury, ignored for the Police whereas the Board it for more year preclearance. than a after that Interest in the Police Jury plan developed only pressure after from Price and the point redistricting NAACP had intensified to the that the process promptly minority would have to be concluded if the proposals Jury, were not to be considered. The Police there- only an fore, became attractive when harbor it seemed to safety minority offer from for a fair demands reflection of by voting strength. It was a Board, chosen described majority possessing District Court "tenacious deter- quo,” mination maintain the status II, Bossier Parish supra, at 32, and the fair is inference that when suddenly Jury plan Board embraced the Police was run- ning true to form.9

9My my conclusion indicates Justice disagreement with Thomas’s con curring The factual opinion. predicate resolving the issue raising scope intent under 5 is a subject relevant Board’s obligation to evidence and District Court’s produce obligation to make findings, nothing Department conduct of the Justice has the Board eviden- impeded addressing either or the court from this tiary issue. The fact that black members have been elected to the Board showing outside the record and is no before us than evidence more particular extent to which the members the choices of the minority were who have suffered the voters conceded dilution.

D Board manifested sedulous sum, In for decades the School obligation desegregate constitutional resistance unitary status and parish have never attained schools, which subject with the need still to court order. When faced are redrawing voting districts, to act its Board alone Jury plan, no interest in the Police which made showed no purposes and was odds normal dis- sense for school with by tricting principles applied hired Board. The Board drawing sig- cartographer anticipation district lines Jury nificantly lines, from the Police and the Attor- different ney preclearance Jury plan Police General’s for the jury’s produced apparent adopt- use no Board interest ing plan. minority sought that same When leaders a role in ignored proposing plan, they the Board them when prepared by produced proposals NAACP, concrete sidestepped Board technical reasons cul- successive minating objection. patently pretextual It was resisting pretexts for were then, as its NAACP wear- ing evidently scrapped thin, that the Board its intention to original plan obtain an tailored to school district concerns year-old proposal and acted with unwonted haste on the adopt manifestly Jury pro- plan. unsuitable Police The posal public hearing support nothing received no objection minority pointed from voters, who out what the agrees, Jury minority Board plan now that the Police dilutes voting strength. objections unavailing were and the adopted plan. Board the dilutive There is no reasonable doubt on this record the Board Jury plan squelch chose the Police no other reason than to requests adopt plan other reflect- NAACP minority ing voting strength, and would be incredible to suggest resulting submergence minority that the vot- expert ers was unintended the Board whose own testified illegality that it understood the If, dilution. as I conclude nonretrogressive below, III, see Part in- dilutive but infra,

357 § pre- redistrieting disqualifies 5 tent behind a it from preclearance impossible this clearance, then record. is (like negate the burden to Since the burden to such intent effect) negate retrogressive on the rests intent and required asking nothing preclearanee, district more g., impossibility preclearanee. show the e. Pleasant See, of (1987). It States, 462, 469 Grove v. United is worth 479 S.U. noting, parish however, that the likewise lose even should majority if assume, we as the seems have District Court point, disqualifying done at one in that the burden show tent is on the Bossier Government the intervenors. (“We imagine of Supp. II, Parish 7 a set facts 2d, F. can 31 'non-retrogressive, that nevertheless would establish a but discriminatory purpose,’ imagined facts are not but those here”). present Judge It was cor is not Kessler nonretrogressive rect in in her conclusion that dilutive contrary shown; tent was view District Court ma “ jority raises ‘the that mistake definite and firm conviction ” [has] Pipe Cal., been committed,’ Concrete & Products of Inc. v. Construction Southern Laborers Pension Trust for (1993) Cal., (quoting U. S. v. United States (1948)). Gypsum United States Co., 333 Re U. S. gardless persuasion, parish of therefore, burden purpose should prong lose under §5, the intent if the §5 disqualifies minority under includes an intent to dilute voting strength regardless retrogression. I I

I A legal meaning “abridging” issue here is the provision change preclearanee districting of 5 that of a jurisdiction in requires showing covered new plan does denying abridging not “have the ... or right to vote on account of race color . . .” The or . language guar- tracks that of the Fifteenth Amendment’s “[t]he right antee that of citizens to vote shall not be ... .” of race . . . denied ... on account color [or] abridged the Act is an under Since exercise congressional power Katzenbach, South Carolina Amendment, of that 383 U. S. (1966), the Amendment’s 301, 325-327 the choice follow is most read as terminology naturally carrying meaning statute. United States of the constitutional terms into Kozminski, (1988) v. 487 945 U. S. (“By employing constitutional was Congress language, apparently focusing cf. Morissette on the of conditions”); prohibition comparable States, (1952) (“[W]here v. United 342 U. S. Con are accumulated the borrows terms art which gress it tradition and centuries legal meaning practice, pre were and the cluster of ideas that knows sumably adopts each borrowed word in the from attached to body learning which it use to taken and the its will convey meaning instructed”). mind con unless otherwise judicial Any statute, struction of the carries an therefore, implication about the of the some rea Amendment, absent meaning good son to texts on some treat particular parallel differently fit the and of the statute that would not point, reading Constitution is presumptively wrong.10 uni majority that we construe and effect argues purpose should discrimination, and formly, savings as we would in laws regulating price ante, loans, See at 331-382. I find the Fifteenth and cable franchises. §5; Amendment more relevant in the constitutional interpreting language also majority its full breadth. The provides give purpose reason claims be meaning that its leaves the with some reading purpose prong change cause the need refute a claim that a jurisdiction’s Government without coun retrogressive purpose deny predearance, lacks order effect. tering jurisdiction’s retrogressive evidence actual regarding Ante, at than effect. prove 382. This assumes that is easier to cases, rights While may voting be true in it is not true price-firing (even §5, than effect under though purpose conceptually simpler cases is 367-368). cases, Here, infra, other race many see as in discrimination at hotly while parties proposed changes of the agreed about the effects purpose prong limits the disputing majority reasons them. The rather goal, to the cases in which fails its attempted retrogression few necessarily abridgment In each clear context, something means more subtle and less drastic than the com- plete right being sepa- denial a ballot, east denial rately Abridgment therefore be a condition forbidden. must complete complete denial, hand, in between one enjoyment voting power, principal on the other. The con- cept strength voting recognized of diminished as actionable regime under vote as a dilution, our eases is defined minority opportunity participate denies voters the same political representatives process elect of their and to Thornburg majority enjoy. g., choice that See, voters e. Gingles, 46-47; S., 1973. The bench- U. U. S. C. pure system simple mark of dilution is thus a which every minority good political par- voter has as a chance at ticipation voter. and effectiveness as other Our subspecies recognized retrogression have cases also only gives consequence dilution, of a scheme that not minority practical participate voter a lesser chance to and majority enjoys, elect than a voter the mi- but even reduces nority practical power preceding voter’s from scheme what provided. States, of electoral law See Beer v. United 425 Although at S.,U. 141. our eases dealt with vote dilu- have only g., see, tion under the Amendment, Fourteenth e. Shaw (1993), Reno, 630, v. 509 U. S. no in 645 I know of reason history text or equally not dilution is violative guarantee against abridgment. Fifteenth And Amendment past dispute while there has been serious over rights, g., coverage voting see, Fourteenth e. Amendment’s (1970) (Harlan, Oregon Mitchell, J., v. 112, 400 U. S. 154 con- curring part part), dissenting in in I of no know reason “abridg[e]” doubt that in Amendment in- the Fifteenth I, cludes dilutive Parish 520 discrimination. Bossier See paltry coverage not given discriminatory discriminatory that it is purpose, effect, that at the heart of the Fifteenth Amendment.

860 in and concur- (Breyer, J., S., part at 494-495 concurring

U. ring judgment).11 Beer) (save that the

The has never held concept Court dilution, and covers retrogressive abridgment voting would be out- the Fifteenth Amendment such reading any The Amendment contains no textual limitation landish. emanci- it was newly when abridgment, adopted, from citizens would have obtained nothing practically pated not be their electoral would a mere guarantee power likewise free of further 5 of the Act is reduced. Since 11 decided, that the Fif never explicitly We have have suggested, Bolden, Mobile See v. Amendment to dilution claims. applies teenth (1980) Lightfoot, Gomillion 55, v. (plurality opinion); S. 62-63 U. (1960) treat 339, 346 (singling minority U. S. out racial Amendment, municipal prohibits ment in violates Fifteenth which Mobile, blacks). at 3n. supra, drawn to exclude But see boundaries (Stevens, J., concurring that Mobile judgment) (suggesting plurality dilution); Voinovich vote said Fifteenth Amendment does reach Reno, (1993) Quilter, 146, 159 Shaw v. (reserving question); v. 507 U. S. (1993) (endorsing considering U. dilution practice S. States, Amendment); Beer United 425 U. S. claims under Fourteenth (1976). 130, 142, n. 14 claims that Gomillion was not about dilution because it majority The Ante, elections. at municipal involved the exclusion of black voters from 334-335, n. from the gerrymandered Tuskegee 3. voters excluded most, areas, could, vote for unincorporated they were left where minor- county Changing political and state officials. boundaries to affect Gomillion ity voting power today. would be called dilution shows physical encompass the term “dilution” not all image by evoked the does the un- ways in which can be made participation political process equal. in its modern sense That Court did not use the word “dilution” in Gomillion does not diminish force of its Fifteenth Amendment analysis. ante, 334-335, Mobile plu- also at n. that the majority suggests, But

rality rejected reliance on the Fifteenth Amendment. explicitly §2 “‘deny Voting or in of the plurality recognized abridge’” same Amendment, Act Rights cognate language mirrored the Fifteenth Mobile, 60-61, supra, language at we have since held that and Quilter, See, g., e. Voinovich v. nonretrogressive includes dilution claims. supra, at 157.

language qualifying limiting abridgment terms of which it abridgment shares with the Amendment, under §5 presumably any retrogression dilution, covers vote redistricting alone, and no preclear- scheme should receive showing ance without a that it is nondilutive. See Bossier supra, I, Parish concurring part at J., in and (Breyer, (use § concurring judgment) in 5 of Fifteenth Amendment language prohibits plans indicates that 5 new with dilutive purposes). apparently Congress just Such, in fact, was what agility had mind when it addressed 5 to the covered jurisdictions keeping step challenges one ahead of dilution (and previous under the Voting Constitution versions of Act) Rights by adopting voting schemes, successive each abridgment perpetuated distinctive feature that minority of the vote:

"Congress ease-by-case litigation had found that was inadequate persistent widespread to combat and dis- voting, crimination in because of the inordinate amount energy of time required to overcome the obstruc- invariably tionist tactics encountered these lawsuits. enduring nearly systematic century After resistance Congress to the might Amendment, Fifteenth well de- cide to advantage shift of time and inertia from the perpetrators of the evil to its victims.” Carolina South omitted). (footnote Katzenbach, S., U. Congress’s This sights abridg- evil in discrimination, right ment merely to vote, not discrimination that happens retrogression, Congress’s to cause intent by barring replace- frustrate the unconstitutional evil ment being put scheme of discrimination from into effect was not confined to one subset schemes. very The School lie Board’s thus seems to at the Congress pre- center of requiring what meant to counter holding any nonretrogressive clearance, and the Court’s § purpose exceedingly 5 survives is an conclusion. odd

B justify to majority purports to its The shoulder burden offering reading argument "abridging” by an a limited § § changes from the "context” of 5. Since 5 covers voting practices, reason to think this fact is said to be a its the statute is than that as used in narrower “abridging” cognate both Amendment, covers in the Fifteenth which continuing systems. 329-330, 333-334. changes Ante, at majority’s reading, baseline words, on the In other changed, challenge quo while that is to be is status (or challenge one in a Fifteenth Amendment baseline Act) nondiscriminatory §2 Rights Voting is a under of the regime, fact that From the whether extant not. voting change proposed,.however, it applies only is when abridgment is the status does not follow baseline quo; Congress perfectly when a well have decided that could (because change jurisdiction scheme is its forced ought say), malapportionment eensus, a new it shown replacement This, course, show is constitutional. just unqualified language Fifteenth is what and its parallel suggest. would Amendment reading majority’s principal intent In reason fact, for retrogression covering only is abridge as intent cause peculiar changes but Beer v. law, context of (1976), United limited the sort States, U. S. 130 which retrogressive abridgment of “effect” that would be an strength majority’s position, de- then, effect. The pends parallel on the need for limitations on the very prongs is much need, however, and effect of 5. The contrary. to authority defining

Insofar is the “effect” of a as Beer redistrieting plan preclearance §5, under bar would respect policy precedent. of stare I will of course statutory interpretation powerful its decisis most

363 (which legis Congress always supersede free to with new is lation), Railways Public see Hilton South Carolina §5 (1991), presents no ex Comm’n, 502 202 and 197, U. S. statutory language ception is con to the rule when thing stay strued should But it is another construed. ignore reasoning entirely extending error to in discredited previously statutory provisions. That, how unspoiled just extending Beer from ever, is what the in Court does § purpose. effects to 5 wrongly be decided,

Beer was and its error should not com- pounded derogation equally in and clear con- of clear text gressional barring purpose. preclear- provision in The districting abridging plan portending ance of is an effect (and just uncompromising unconditional as the bar plans resting abridge). on Beer Court sought justify imposition nonetheless a nontextual abridging retrogression limitation on the effect to forbidden by single fragment history, relying legislative a state- Report ment prevent from a House that 5 would covered “ jurisdictions defeating] ‘undoing] rights re- from ” cently by (quoting supra, won’ R. Beer, blacks. at 140 H. (1969)).12 Rep. p. Relying 91-397, No. one state- on this selectivity, distorting ment, however, was an for the act of legislative history replete need references to the changes voting practices perpetuate block in that would ex- isting truly way discrimination and nondis- stand criminatory Representatives, alternatives. In the House Judiciary apparent Committee that “even de- noted after feats] ways discriminating. resisters seek and new means of

12Section 5 was promulgated the 89th Congress, Congress’s attention has repeatedly Voting returned to it as the duration of the e.g., Rights See, Act has been extended has Act been amended. Bossier Parish I, 520 (1997) (Stevens, 471, 505-506 J., dissenting U. S. amendments); part Voting concurring part) (discussing Rights 1965, 400; Act of 1975, 89 Act Amend Rights Amendments Stat. Voting ments of 84 Stat. 315. change Barring too caused no one contrivance often has Cong., Rep. result, H. 89th methods,” R. No. (1965), Report Sess., 1st and House how 10 the described jurisdictions changes voting practices in to stave had used trifling registration By making changes re- in off reform. quirements, County, example, Alabama, Dallas was able registering litigation against it more without terminate minority at voters, id., 10-11, see and new than handful similarly practices perpetuating were effective devices for jurisdictions Rep. see well, discrimination in other S. (1965) (Joint pt. pp. 162, of Individual 3, No. 8-9 Statement by Long, Kennedy, Bayh, Burdick, Dodd, Hart, Views Sens. Javits). Fong, Tydings, After Hruska, Scott, Dirksen, and voting jurisdictions adopt losing rights vot- would new cases, “ rejection continuing ing requirements means for ‘as a qualified Negro (quoting applicants.’” Id., at 12 United (MD 1964)). Supp. Parker, 511, 236 517 Ala. States v. F. jurisdictions to the traditions of the Thanks retrogres- practices often avoided covered these new days they stymied improvements. In sion13 even as ongoing litigation and become moot §5, before would shouldering square minority litigants one, back at would be challenges prospect fur- the burden of new (Marshall, dodges supra, J., at n. 9 Beer, ther come. dissenting). Congress

The frustration intent of to address the running stay place when extended was manifest Voting Rights Act in 1969: act, new

“Prior the enactment of the 1965 resorted to in several States rules of various kinds were face of perpetuate order to discrimination and legislative history “retrogression” not use the terms The did Voting Rights Act discriminatory regimes. to describe In the “dilution” Beer, context, the former for the first time in a federal case appears Bd. v. State 141; in Allen S., 425 U. latter made its first appearance Elections, 393 U. S. 544 (1969). by the decrees enactments adverse Federal court and preclude Congress. future In order to such State ... policies or local and circumvention remedies [§ enacted].... act, indicates that as “The record before the committee Negro registration Voting voter has increased under Rights jurisdictions several new, have undertaken Act, ways Negroes’ unlawful to diminish franchise Negro Negro-supported to defeat candidates. Rights reported U. S. Commission on has Civil switching these have the form of measures taken at-large Negro voting strength is con- elections where particular centrated and facili- election districts tating Negro [sic] predominently the consolidation of changes [sic] predominently and white counties. Other practices voting affecting in rules or have included in- creasing filing Negro candidates fees elections where running; abolishing making appointive were or offices by sought extending Negro the term of office candidates; withholding of incumbent white and informa- officials, qualifying Negro tion about for office from candidates.” Rep. 91-397, H. R. No. 6-7. (1969) (remarks Cong. Rep.

See also 115 Rec. 38486 of Mc- Culloch) (listing “new methods which South achieves goal” an old maintaining political of white control of the process).

Congress again expressed its views 1975: years [§5]

“In recent importance has of become widely recognized promoting preserv- aas means of ing minority political gains jurisdictions.... in covered registration voting

“. . minority . As citizens may increases, other be resorted to which measures increasing minority voting strength. would dilute Such may switching at-large other elec- measures include predominantly areas, white tions, annexations redistricting Rep. plans.” adoption S. omitted). (citation pp. 94-295, No. 15-17 way Congress to make the situation as a thus referred keep merely stopgap to (“promoting”), as a from better getting (“preserving”). worse majority how the

It all the more difficult to understand congres so to this clear could have been oblivious in Beer objective, Court had Beer the when decade before sional way dis modifying legal requirements was the realized that stayed jump the Con criminatory jurisdictions ahead of one Mississippi, S. 128 380 U. In United States v. stitution. (1965), ingenious devices described a series the Court minority registration, preventing and in South Carolina (1966), Court said that Katzenbach, 383 U. S. “Congress had resorted knew that of the States... some extraordinary stratagem contriving rules new perpetuating purpose of for the sole various kinds voting adverse federal in the face of discrimination Congress suppose that had reason court decrees. might try in the future these similar maneuvers States discrimina- in order to evade the remedies (footnote at 335 Id., in the Act itself.” tion contained omitted); id., see also at 314-315. jurispru- Beer,

Likewise, our nascent dilution well before congressional practices dence addressed mentioned §by g., Regester, targeted See, White v. lists of tactics 5. e. (1973). 755, 765-766, 412 U. S. 768-769 history beyond any legislative doubt fine, In the full shows just provides. unqualified statute text of what abridgment customary no in favor of contains reservation grown years discrimination, and familiar after of relentless preclearanee requirement to authorize not enacted poison jurisdictions pour to into new bottles. covered old dissenting). post, J., Beer was at See 374-376 (Breyer, wrong, and while it is entitled under our traditional to stand statutory interpretation, decisis in stare decisis does stare today’s compound excuse to Beer's not decision error.14 Giving purpose-to-abridge reading intended broader, erroneously preserving interpretation while truncated facially effect would not even a result in irrational scheme. conceptually simple, This is so because to dilute is intent abridgment-in-fact readily whereas a dilutive is defined independently purpose and identified A of dilutive intent. minority simply power; to dilute means to subordinate unnecessary identify exact is calibration to what is intended. Any minority give weight participation to to less process majority participation pur- the electoral than to is a pose to “abridge” right discriminate and thus to vote. goes enquiry No further baseline is needed because majority’s the direction of the reference aim, without system. existing details of the majority points effect, out,

Dilutive for the reason against requires different. Dilutive effect which baseline compare change. proposed is in While the baseline theory majority voters, the electoral effectiveness of dilution merely proportional is not representation, lack of see Davis (1986) J.), (opinion v. Bandemer, 109, 131 White, 478 U. S. possible we have held that the maximum number majority-minority g., e. standard, see, districts cannot be the Johnson, Miller v. Thus have S., 515 U. at 925-926. we enquiry held that an into dilutive effect must rest on some says history5’ 14 The Court “lengthy legislative this into expedition today’s leaves me “emptyhanded” nothing for the reason that shows notions of vote mind. congressional dilution were particularly Ante, history n. 4. is that legislative But the whole point discriminatory devices that Congress guard just meant those against jurisdic were yet untried. not what the Congress did know covered tions would think up next.

368 minority power between allocation idea of a reasonable compare a requires to a court majority this voters; and alternative voting practice reasonable challenged with a (1994)(opin 874, 880 Hall, 512 S. Holder v. U. practice. See J.); J., concur id., at 887-888 ion of (O’Connor, Kennedy, also Johnson concurring judgment); see part ring in in and (1994). Looking only to Grandy, 1018 997, De v. 512 U. S. looking other dilutive or retrogression effect, to in while difficulty of deri abridgment purpose, baseline in avoids the by Congress, but was not intended vation. distinction such a distinction is irrational. always Department taken

Indeed, the Justice has prong puts position Beer limited to the effect is §5. discriminatory purpose Brief See no limitation on Department’s Appellant for 32-38. The Justice Federal changes refusing preclear longstanding practice of unconstitutionally it determined to have an “particu- purpose, Beer, both before and after is entitled light Department’s role” in “central lar deference” in administering White, Dougherty County Bd. Ed. v. 5. (1978); 439 32, U. S. 39 see also United States v. Sheffield (1978); Comm’rs, 110, Perkins Bd. 435 U. S. 131-132 (1971). significant Matthews, 400 U. S. 390-391 Most Department here, for decades fact that the Justice has understood Beer to be limited to effect demonstrates position entirely with the such and coherent consistent though may been Beer, law as declared even not have Congress what intended.

Giving scope wider under than effect only preserve preclear- capacity would not to bar ance to all Amend- intended violations of the Fifteenth consistency enjoy it would ment,15 also the virtue of Breyer Justice full justification this effect developed giving I, Parish opinion in Bossier S., the “purpose” prong in his 520 U. at 493- Section (opinion concurring part concurring judgment). from Beer. In Richmond v. United decisions prior apart States, (1975), 422 U. S. 358 held that Court terri- city’s torial annexation of black voters reducing percentage could not be as a under the effect recognized wrong legal §5, but remanded for further consideration of prong dis- Richmond The criminatory purpose. majority distinguishes more than an ex necessitate limitation as “nothing upon Ante, effect in the context of annexation.” prong particular Richmond laid fact, at 330. But in no effect down eccentric rule and is at odds with the squarely majority’s position an act taken with intent a forbidden effect produce is forbidden under the intent prong.

As to the Richmond effect, forbidden said this: Court

“As as the ward reflects the long system fairly strength of the as it annex- community exists after Negro ation, we cannot hold, more without specific legislative direction, that such an annexation is nevertheless barred 5. It true that the black if there is community, racial bloc will command fewer seats on the voting, city council; and the annexation will have effected decline amended, now invalidates facially neutral with practices discrimina- tory effects even in discrimination, the absence of purposeful is thus no longer coextensive with our understanding of the Constitution. clear, effeets-only standard was added after years after Court made of uncertainly, that the Constitution prohibited only purposeful discrimi- nation, not neutral action disparate with a on minorities. impact The Court has §5. divided on the effect of this change Compare id., id., (Stevens, J., at 505-506 part and con- dissenting Breyer curring part). As Justice explained, prong that the effects now goes beyond the bearing Constitution has no on whether we should limit the meaning purpose prong, which no more than re- does Id., peat what the Constitution requires. retrogres- at 493-494. Both sive and nonretrogressive discriminatory violate the Constitu- purposes Breyer tion. As I already, have said I agree with Justice there is no evidence Congress §5 intended include in of what only part id., the Constitution prohibits. See at 494. The tides of constitutional interpretation have buffeted so both but have never ebbed low as to approve dilutive discriminatory, purpose. city. But a dif- Negroes’ influence in relative city enlarged city are involved and an

ferent council Negro power Furthermore, after the annexation. Negroes not city undervalued, and will is not the new underrepresented the council. on be that the effect long true, cannot hold

“As as this is we abridge right deny or annexation is S., vote.” U. 371. and “under- to “undervaluation”

As Richmond's references application representation” clear, make the case involves annex- principles to the standard Fifteenth Amendment long exception. as the As context, ation not an annexation participate city postannexation allowed voters black did not equal the annexation voters, terms with white they made “abridge” voting rights thereafter their even if up proportion population. The Court a smaller very adopting plan whose held, however, also legal scope wrong, effect been to be had held outside city unlawful, an could have acted with intent that would have rendered the annexation unlawful approval under barred 5: may

“[I]t 5 to be asked how it could forbidden be achieving only is a what purpose have the and intent of why perfectly legal we that section and result under respect proceedings with need remand for further we purpose plain, need alone. The answer is or an annexation action, labor it. An official whether discriminating purpose otherwise, taken legiti- against Negroes race has no on account their macy or under the statute. at all under our Constitution purpose voting changes taken with the Section forbids grounds denying of race color.” the vote on the Id., at 378. lacking underlying

It follows from Richmond that a may disqualifying retrogression to cause be barred by discriminatory intent. majority’s attempt distinguish Pleasant Grove v. (1987), States, equally

United 479 U. S. 462 vain. Whereas argument logic Richmond dealt with the that law and barred finding disqualifying lawful, intent when effect was Pleas- argument finding disquali- ant Grove dealt with the fying impossible intent was fact. The Pleasant Court preelearanee Grove denied to an annexation that added white city’s despite electorate, voters to the fact that at the minority voting strength time of the annexation was non- city seeking existent and officialsof the the annexation were any unaware of black voters could be diluted. whose votes thing beyond peradventure: One is clear the annexation in retrogres- that case could not have been intended to eause retrogression No one sion. could have intended cause be- any minority strength cause no one knew of from retrogression possible. which S., 479 U. at n. 2. The fact that the was nonetheless barred under annexation purpose prong years Beer, after means §5, that today’s majority they overruling cannot hold as do without Pleasant Grove. majority describing by

The seeks to avoid Pleasant Grove barring it retrogression” as “future nipping such contingency future even before the bud This had formed. gymnastic, however, not overlooks the contradiction between holding voting change Pleasant Grove’s that with- possible out retrogressive purpose intent could fail under the prong majority’s reasoning today and the baseline prong quo; purpose ignores for the is the what status it even actually the Court said. Court While the Pleasant Grove impermissible said purpose anticipated could relate to nothing circumstances, S., 471-472, 479 U. at it said about (a anticipated retrogression concept familiar the Court Beer). “plausible” that found it The Court since the time purpose impermissible simply city acted with “the had voting strength.” S., minimizing black U. future (footnote omitted). spoke “minimiz- Court The 471-472 retrogression is more: ing,” But there “causing to.” [integration] provide thwarting for is to means of “One thereby growth voting block, monolithic white of a diluting effectively This is vote in advance. black pres- just purpose dilution of impermissible a as as [422 voting strength. City Richmond, ent Cf. black Id., S.,] at 378.” at 472. U. just nonretrogressive purpose im- is, as

That dilutive .is holding retrogressive Today’s permissible one. under 5 as overruling majority Pleasant Grove. The contradicts that. prec- justification denying the proffers majority no Instead observes edential value of Pleasant Grove. covering reading prong ret- of 5 more than it) (as rogression would read and Pleasant Grove Richmond pre- costs that “exacerbate the ‘substantial’ federalism already procedure Ante, at 336. But clearance exacts.” reading, my reading, prior not own would like the Court’s penny what the Con- raise one above the cost of federalism a gress is of Bossier Parish meant it to be. The behavior plain deny voting equality the Constitution effort to the that just point plainly guarantees. to thwart the The 5 is ingenuity stay to ahead of chal- of the School Board’s effort §2. bring lenges object country closer under Its is to transcending history intransigence to a to enforcement promise Now, however, the Fifteenth Amendment. judi- substantially of 5 is Now executive diminished. preelear cial officers will be forced United States illegal patently in- schemes unconstitutional fed- perpetuate appeal to tended The discrimination. respectfully eralism is no I dissent. excuse. Ginsburg Stevens,

Justice with whom joins, Justice dissenting. voting rights statute for the

In its administration of the century, past quarter Department has con- of Justice sistently employed Voting Rights a construction of the Act contrary upon imposed to that the Act the Court today. Apart from the are deference such constructions always directly Department’s reading points afforded, us necessary statutory starting point to the exercise in interpretation plain language of the statute. —the impossible language It would lead one is that alone phrase to think that the the effect” includes “will not have temporal measure; some the noun “effect” and the verb tense reading imaginably give “will have” could rise that re- quires comparison But between what and what will be. is simply nothing “purpose” there is in the word or entire phrase anyone purpose” “does not have the lead would Congress anything present- to think that had mind but “den[y] right abridg[e] tense, intentional effort to or g., vote on See, account of race.” e. Third New Webster’s (1966). Dictionary Ergo, municipal- International if a ity deny voting rights abridge intends to of race, because may preelearance. not obtain persuaded

Like Justice I am that the dissent- Souter, ing opinions of Justices White more faith- and Marshall were Congress Voting ful to the intent of the that enacted Rights majority Act of 1965than that of in Beer v. United (1976). States, 425 not, U. S. 130 One dis- however, need precedent explain my profound avow dis- order agreement holding today. reading with the Court’s necessary above makes clear tension be- there no majority’s interpretation tween the Beer of the word “effect” interpretation in 5 and Department’s consistent of “purpose.” retrogression accept- word For even if is an identifying prohibited able standard for that as- effects, sumption justify interpretation does not of word an both is at war with controlling precedent

“purpose” of text. and the the statutory plain meaning those at for these reasons stated Accordingly, Souter, Justice I dissent. greater length respectfully Breyer, Justice dissenting.

I Justice with one Souter, with qualification. agree deci not reconsider the correctness of the Court’s I would States, in Beer v. (1976)—an United 425 U. S. 130 as sion “effects” e § 5 of the Act ause, e—b Voting regardless, Rights ec of a that has of 1965 preclearance voting change prohibits minorities of the unconstitutionally depriving purpose to vote. right ante, out, Justice Souter at 360-361

As points (opinion enacted dissenting part), Congress concurring part from limit- § 5 in 1965 in certain jurisdictions part prevent the number of black voters “the ing through extraordinary new rules of various kinds for the stratagem contriving sole discrimination perpetuating South Carolina face of adverse federal court decrees.” Katzenbach, (1966). 301, v. 383 U. S. This “stratagem” risk of created moving target consequent judicial g., Matthews, e. Perkins v. See, runaround. S.U. (1971). this 395-396 And could “stratagem” prove similarly effective where the State’s “new rules” were intended to ret- Indeed, time, not. and where were since at they rogress left the num- certain historical discrimination had places, zero, ber of would have black voters close to retrogression § 5 was needed most. where virtually proved impossible In An drawn from makes the clear. point example history three- Forrest precisely County, Mississippi, tenths 1% the black voting age reg- population Mississippi, istered to vote. United States 229 F. Supp. (SD 1964) rev’d, 380 925, 994, n. 86 Miss. (dissenting opinion), (1965). to the This number was due U. S. 128 large part of the State’s county application registrar’s

375 regis- registration requirements. 1961, Prior to voter registration simply accept forms trar had refused to voter Lynd, F. from 301 2d black citizens. See States United (CA5 1962). were 818, 1961, After those blacks who apply register subjected allowed to had to more been whites, difficult test than had been offered while whites reg- taxing applications. assistance with their less And the upon denying applications istrar, citizens, of black had supply explanation. refused to them at 822. Id., with an practices, and the Fifth Government attacked these enjoined “[f]ailing process ap- registrar Circuit from plications registrations by Negro applicants submitted by appli- applications on the same basis white submitted Id., cants.” at 823.

Mississippi’s response” injunction was “immediate to this impose “good requirement,” moral Missis- character sippi, supra, at has character- standard this Court open voting ized as “an invitation to at the hands of abuse judge supra, officials,” Katzenbach, at One federal 313. change believed designed that this was to avoid the Fifth injunction by Appellate Circuit’s “defying] a Federal Court particular qualified determination applicants were [to vote].” Mississippi, supra, would at 997. defiance Such maintaining though result light not, the absence — voting increasing— County blacks from the Forrest rolls, political supremacy. white precisely activity

This is kind for which 5 de- signed, ap- and the its of would have demanded plication g., supra, in such a See, 395- Perkins, case. e. (Congress d[id] “Department knew that the Justice police effectively not have the resources to ... all States covered the Act,” and was intended to ensure that respect States not institute “new laws with might racially discriminatory purpose”); have a Katzenbach, (Prior “[ejven supra, at 314 when favorable decisions ha[d] ha[d] finally obtained, been affected some the States

merely not covered switched to devices decrees”). the federal history suggests nothing language

And or its Act’s contrary. g., Rep. Gong., See, e. 89th 1st 439, H. R. No. (1965) (“Barring Sess., 10 too often has one contrivance methods”); change Rep. result, caused no S. (1965)(joint Cong., pt. p. 162, 89th Sess., 3, 1st 12 views No. describing Judiciary Committee, of 12 members of Senate (MD Supp. Parker, 517 Ala. United States v. 236 F. 1964), injunction by jurisdiction responded in which a to an instituting rejection qualified of various means for “the Negro applicants”); Hearings on H. R. 6400 before Sub Judiciary, committee 5 of the House Committee on the No. (1965) Attorney Cong., (testimony 89th of Gen Sess., 1st 5 Katzenbach) (discussing jurisdictions are eral those apparent “able, courts, even after to devise defeat discrimination”); Hearings whole new methods of on S. Cong., Judiciary, before the Senate 89th Committee on the (1965) Attorney pt. p. (testimony 1st Sess., General Katzenbach) (similar). Mississippi

It seems had enacted obvious, then, that if (after its requirement “moral character” enactment Act), Rights Voting applying would have a court right denying abridging found “the ... Mississippi to vote on if had in- race,” account even permit, say, 0.3%, tended to than of the black 0.4%, rather voting age population County register. And Forrest irrespective surrounding complexity if so, then today’s test, administration an “effects” the answer to purpose question “yes.”

Case Details

Case Name: Reno v. Bossier Parish School Board

Court Name: Supreme Court of the United States

Date Published: Jan 24, 2000

Citation: 528 U.S. 320

Docket Number: 98-405

Court Abbreviation: SCOTUS