Chisom v. Roemer/Dissent Scalia

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice KENNEDY join, dissenting.

Section 2 of the Voting Rights Act is not some all-purpose weapon for well-intentioned judges to wield as they please in the battle against discrimination. It is a statute. I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context;  and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not and especially if a good reason for the ordinary meaning appears plain-we apply that ordinary meaning. See, e.g., West Virginia University Hospitals, Inc. v. Casey, 499 U.S., -, 111 S.Ct. 1138, 1147-1148, 113 L.Ed.2d 68 (1991); Demarest v. Manspeaker, 498 U.S., , 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S., Today, however, the Court adopts a method quite out of accord with that usual practice. It begins not with what the statute says, but with an expectation about what the statute must mean absent particular phenomena ("we are convinced that if Congress had . . . an intent [to exclude judges] Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history," ante, at 14 (emphasis added)); and the Court then interprets the words of the statute to fulfill its expectation. Finding nothing in the legislative history affirming that judges were excluded from the coverage of § 2, the Court gives the phrase "to elect representatives" the quite extraordinary meaning that covers the election of judges.

As method, this is just backwards, and however much we may be attracted by the result it produces in a particular case, we should in every case resist it. Our job begins with a text that Congress has passed and the President has signed. We are to read the words of that text as any ordinary Member of Congress would have read them, see Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417 (1899), and apply the meaning so determined. In my view, that reading reveals that § 2 extends to vote dilution claims for the elections of representatives only, and judges are not representatives.

* As the Court suggests, the 1982 amendments to the Voting Rights Act were adopted in response to our decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which had held that the scope of the original Voting Rights Act was coextensive with the Fifteenth Amendment, and thus proscribed intentional discrimination only. I agree with the Court that that original legislation, directed towards intentional discrimination, applied to all elections, for it clearly said so:

"No voting qualification or prerequisite to voting, or     standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or      abridge the right of any citizen of the United States to vote      on account of race or color." 79 Stat. 437.

The 1982 amendments, however, radically transformed the Act. As currently written, the statute proscribes intentional discrimination only if it has a discriminatory effect, but proscribes practices with discriminatory effect whether or not intentional. This new "results" criterion provides a powerful, albeit sometimes blunt, weapon with which to attack even the most subtle forms of discrimination. The question we confront here is how broadly the new remedy applies. The foundation of the Court's analysis, the itinerary for its journey in the wrong direction, is the following statement: "It is difficult to believe that Congress, in an express effort to broaden the protection afforded by the Voting Rights Act, withdrew, without comment, an important category of elections from that protection." Ante, at 404. There are two things wrong with this. First is the notion that Congress cannot be credited with having achieved anything of major importance by simply saying it, in ordinary language, in the text of a statute, "without comment" in the legislative history. As the Court colorfully puts it, if the dog of legislative history has not barked nothing of great significance can have transpired. Ante, at 396, n. 23. Apart from the questionable wisdom of assuming that dogs will bark when something important is happening, see 1 T. Livius, The History of Rome 411-413 (1892) (D. Spillan translation), we have forcefully and explicitly rejected the Conan Doyle approach to statutory construction in the past. See Harrison v. PPG Industries, Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 1897, 64 L.Ed.2d 525 (1980) ("In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark"). We are here to apply the statute, not legislative history, and certainly not the absence of legislative history. Statutes are the law though sleeping dogs lie. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495-496, n. 13, 105 S.Ct. 3275, 3284-3285, n. 13, 87 L.Ed.2d 346 (1985); Williams v. United States, 458 U.S. 279, 294-295, 102 S.Ct. 3088, 3096-3097, 73 L.Ed.2d 767 (1982) (MARSHALL, J., dissenting).

The more important error in the Court's starting-point, however, is the assumption that the effect of excluding judges from the revised § 2 would be to "withdr[aw] . . . an important category of elections from [the] protection [of the Voting Rights Act]." Ante, at 404. There is absolutely no question here of withdrawing protection. Since the pre-1982 content of § 2 was coextensive with the Fifteenth Amendment, the entirety of that protection subsisted in the Constitution, and could be enforced through the other provisions of the Voting Rights Act. Nothing was lost from the prior coverage; all of the new "results" protection was an add-on. The issue is not, therefore, as the Court would have it, ante, at 395-396, whether Congress has cut back on the coverage of the Voting Rights Act; the issue is how far it has extended it. Thus, even if a court's expectations were a proper basis for interpreting the text of a statute, while there would be reason to expect that Congress was not "withdrawing" protection, there is no particular reason to expect that the supplemental protection it provided was any more extensive than the text of the statute said.

What it said, with respect to establishing a violation of the amended § 2, is the following:

"A violation . . . is established if . . . it is shown     that the political processes leading to nomination or      election . . . are not equally open to participation by      members of a [protected] class . . . in that its members have      less opportunity than other members of the electorate to      participate in the political process and to elect      representatives of their choice."  42 U.S.C. § 1973(b)      (emphasis added).

Though this text nowhere speaks of "vote dilution," Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), understood it to proscribe practices which produce that result, identifying as the statutory basis for a dilution claim the second of the two phrases highlighted above-"to elect representatives of their choice." Under this interpretation, the other highlighted phrase-"to participate in the political process"-is left for other, non-dilution § 2 violations. If, for example, a county permitted vote registration for only three hours one day a week, and that made it more difficult for blacks to register than whites, blacks would have less opportunity "to participate in the political process," than whites, and § 2 would therefore be violated-even if the number of potential black voters was so small that they would on no hypothesis be able to elect their own candidate, see Blumstein, Proving Race Discrimination, 69 Va.L.Rev. 633, 706-707 (1983).

The Court, however, now rejects Thornburg's reading of the statute, and asserts that before a violation of § 2 can be made out, both conditions of § 2(b) must be met. As the Court explains,

"As the statute is written, . . . the inability to elect     representatives of their choice is not sufficient to      establish a violation unless, under the totality of the circumstances, it      can also be said that the members of the protected class have      less opportunity to participate in the political process.      The statute does not create two separate and distinct rights.      . . .  It would distort the plain meaning of the sentence to      substitute the word "or" for the word "and."  Such radical      surgery would be required to separate the opportunity to      participate from the opportunity to elect." Ante, at 397.

This is unquestionably wrong. If both conditions must be violated before there is any § 2 violation, then minorities who form such a small part of the electorate in a particular jurisdiction that they could on no conceivable basis "elect representatives of their choice" would be entirely without § 2 protection. Since, as the Court's analysis suggests, the "results" test of § 2 judges a violation of the "to elect" provision on the basis of whether the practice in question prevents actual election, then a protected class that with or without the practice will be unable to elect its candidate can be denied equal opportunity "to participate in the political process" with impunity. The Court feels compelled to reach this implausible conclusion of a "singular right" because the "to participate" clause and the "to elect" clause are joined by the conjunction "and." It is unclear to me why the rules of English usage require that conclusion here, any more than they do in the case of the First Amendment-which reads "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This has not generally been thought to protect the right peaceably to assemble only when the purpose of the assembly is to petition the Government for a redress of grievances. So also here, one is deprived of an equal "opportunity . . . to participate . . . and to elect" if either the opportunity to participate or the opportunity to elect is unequal. The point is in any event not central to the present case-and it is sad to see the Court repudiate [410]

Thornburg, create such mischief in the application of § 2, and even cast doubt upon the First Amendment, merely to deprive the State of the argument that elections for judges remain covered by § 2 even though they are not subject to vote dilution claims.

The Court, petitioners, and petitioners' amici have labored mightily to establish that there is a meaning of "representatives" that would include judges, see, e.g., Brief for Lawyers Committee for Civil Rights as Amicus Curiae 10-11, and no doubt there is. But our job is not to scavenge the world of English usage to discover whether there is any possible meaning of "representatives" which suits our preconception that the statute includes judges; our job is to determine whether the ordinary meaning includes them, and if it does not, to ask whether there is any solid indication in the text or structure of the statute that something other than ordinary meaning was intended.

There is little doubt that the ordinary meaning of "representatives" does not include judges, see Webster's Second New International Dictionary 2114 (1950). The Court's feeble argument to the contrary is that "representatives" means those who "are chosen by popular election." Ante, at 399. On that hypothesis, the fan-elected members of the baseball All-Star teams are "representatives"-hardly a common, if even a permissible, usage. Surely the word "representative" connotes one who is not only elected by the people, but who also, at a minimum, acts on behalf of the people. Judges do that in a sense-but not in the ordinary sense. As the captions of the pleadings in some States still display, it is the prosecutor who represents "the People"; the judge represents the Law-which often requires him to rule against the People. It is precisely because we do not ordinarily conceive of judges as representatives that we held judges not within the Fourteenth Amendment's requirement of "one person, one vote." Wells v. Edwards, 347 F.Supp. 453 (MD La.1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). The point is not that a State could not make judges in some senses representative, or that all judges must be conceived of in the Article III mold, but rather, that giving "representatives" its ordinary meaning, the ordinary speaker in 1982 would not have applied the word to judges, see Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417 (1899). It remains only to ask whether there is good indication that ordinary meaning does not apply.

There is one canon of construction that might be applicable to the present case which, in some circumstances, would counter ordinary meaning-but here it would only have the effect of reinforcing it. We applied that canon to another case this Term, concerning, curiously enough, the very same issue of whether state judges are covered by the provisions of a federal statute. In Gregory v. Ashcroft, --- U.S., 111 S.Ct. 2412, --- L.Ed.2d (1991) we said that unless it was clear that the term "appointee[s] on the policymaking level" did not include judges we would construe it to include them, since the contrary construction would cause the statute to intrude upon the structure of state government, establishing a federal qualification for state judicial office. Such intrusion, we said, requires a "plain statement" before we will acknowledge it. See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). If the same principle were applied here, we would have double reason to give "representatives" its ordinary meaning. It is true, however, that in Gregory interpreting the statute to include judges would have made them the only high-level state officials affected, whereas here the question is whether judges were excluded from a general imposition upon state elections that unquestionably exists; and in Gregory it was questionable whether Congress was invoking its powers under the Fourteenth Amendment (rather than merely the Commerce Clause), whereas here it is obvious. Perhaps those factors suffice to distinguish the two cases. Moreover, we tacitly rejected a "plain statement" rule as applied to the unamended § 2 in City of Rome v. United States, 446 U.S. 156, 178-180, 100 S.Ct. 1548, 1562-1563, 64 L.Ed.2d 119 (1980), though arguably that was before the rule had developed the significance it currently has. I am content to dispense with the "plain statement" rule in the present case, cf. Pennsylvania v. Union Gas Co., 491 U.S. 1, 41-42, 109 S.Ct. 2273, 2302-2303, 105 L.Ed.2d 1 (1989) (opinion of SCALIA, J.)-but it says something about the Court's approach to today's decision that the possibility of applying that rule never crossed its mind.

While the "plain statement" rule may not be applicable, there is assuredly nothing whatever that points in the opposite direction, indicating that the ordinary meaning here should not be applied. Far from that, in my view the ordinary meaning of "representatives" gives clear purpose to congressional action that otherwise would seem pointless. As an initial matter, it is evident that Congress paid particular attention to the scope of elections covered by the "to elect" language. As the Court suggests, that language for the most part tracked this Court's opinions in White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971), but the word "legislators" was not copied. Significantly, it was replaced not with the more general term "candidates" used repeatedly elsewhere in the Act, see, e.g., 42 U.S.C. §§ 1971(b), (e); 1973i(c), 1973l(c);  1973ff-2;  1974;  1974e, but with the term "representatives," which appears nowhere else in the Act (except as a proper noun referring to Members of the federal lower House, or designees of the Attorney General). The normal meaning of this term is broader than "legislators" (it includes, for example, school boards and city councils as well as senators and representatives) but narrower than "candidates."

The Court says that the seemingly significant refusal to use the term "candidate" and selection of the distinctive term "representative" are really inconsequential, because "candidate" could not have been used. According to the Court, since "candidate" refers to one who has been nominated but not yet elected, the phrase "to elect candidates" would be a contradiction in terms. Ante, at 399-400. The only flaw in this argument is that it is not true, as repeated usage of the formulation "to elect candidates" by this Court itself amply demonstrates. See, e.g., Davis v. Bandemer, 478 U.S. 109, 131, 106 S.Ct. 2797, 2809, 92 L.Ed.2d 85 (1986); Rogers v. Lodge, 458 U.S. 613, 624, 102 S.Ct. 3272, 3279, 73 L.Ed.2d 1012 (1982); id., at 639, n. 18, 641, n. 22, 649, 102 S.Ct., at 3287, n. 18, 3288, n. 22, 3292 (STEVENS, J., dissenting);  City of Mobile v. Bolden, 446 U.S., at 75, 100 S.Ct., at 1504;  United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 158, 97 S.Ct. 996, 1006, 51 L.Ed.2d 229 (1977); Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969); Allen v. State Board of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833, 22 L.Ed.2d 1 (1969). We even used the phrase repeatedly in ''Thornburg. Thornburg v. Gingles, 478 U.S., at 40, 44, 50, 54, 80, 106 S.Ct., at 2760, 2762, 2766, 2768, 2781; id., at 86, 103, 106 S.Ct., at 2785, 2793 (O'CONNOR, J., concurring in judgment);  id.,'' at 107, 106 S.Ct., at 2795 (opinion of STEVENS, J.). And the phrase is used in the Complaint of the minority plaintiffs in the other § 2 case decoded today. Houston Lawyers' Assn. v. Attorney General of Texas, --- U.S., 111 S.Ct. 2393, --- L.Ed.2d (1991). App. in Nos. 90-813, 90-974, p. 22a. In other words, far from being an impermissible choice, "candidates" would have been the natural choice, even if it had not been used repeatedly elsewhere in the statute. It is quite absurd to think that Congress went out of its way to replace that term with "representatives," in order to convey what "candidates" naturally suggests (viz., coverage of all elections) and what "representatives" naturally does not.

A second consideration confirms that "representatives" in § 2 was meant in its ordinary sense. When given its ordinary meaning, it causes the statute to reproduce an established, eminently logical and perhaps practically indispensable limitation upon the availability of vote dilution claims. Whatever other requirements may be applicable to elections for "representatives" (in the sense of those who are not only elected by but act on behalf of the electorate), those elections, unlike elections for all office-holders, must be conducted in accordance with the equal-protection principle of "one person, one vote." And it so happens-more than coincidentally, I think-that in every case in which, prior to the amendment of § 2, we recognized the possibility of a vote dilution claim, the principle of "one person, one vote" was applicable. See, e.g., Fortson v. Dorsey, 379 U.S. 433, 436, 85 S.Ct. 498, 500, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376 (1966); Whitcomb v. Chavis, supra, 403 U.S., at 149-150, 91 S.Ct., at 1872-1873;  White v. Regester, supra, 412 U.S., at 765-767, 93 S.Ct., at 2339-2340;  see also Davis v. Bandemer, 478 U.S. 109, 131-132, 106 S.Ct. 2797, 2809-2810, 92 L.Ed.2d 85 (1986). Indeed, it is the principle of "one person, one vote" that gives meaning to the concept of "dilution." One's vote is diluted if it is not, as it should be, of the same practical effect as everyone else's. Of course the mere fact that an election practice satisfies the constitutional requirement of "one person, one vote" does not establish that there has been no vote dilution for Voting Rights Act purposes, since that looks not merely to equality of individual votes but also to equality of minority blocs of votes. (White itself, which dealt with a multi-member district, demonstrates this point. See also City of Mobile v. Bolden, supra, 446 U.S., at 65, 100 S.Ct., at 1498.) But "one person, one vote" has been the premise and the necessary condition of a vote dilution claim, since it establishes the baseline for computing the voting strength that the minority bloc ought to have.  As we have suggested, the first question in a dilution case is whether the "one person, one vote" standard is met, and if it is, the second is whether voting structures nonetheless operate to " 'minimize or cancel out the voting strength of racial or political elements of the voting population.' "  Burns v. Richardson, supra, 384 U.S., at 88, 86 S.Ct., at 1294. See also Note, Fair and Effective Voting Strength Under Section 2 of the Voting Rights Act: The Impact of Thornburg v. Gingles on Minority Vote Dilution Litigation, 34 Wayne L.Rev. 303, 323-324 (1987).

Well before Congress amended § 2, we had held that the principle of "one person, one vote" does not apply to the election of judges, Wells v. Edwards, 347 F.Supp. 453 (MD La.1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). If Congress was (through use of the extremely inapt word "representatives") making vote dilution claims available with respect to the election of judges, it was, for the first time, extending that remedy to a context in which "one person, one vote" did not apply. That would have been a significant change in the law, and given the need to identify some other baseline for computing "dilution," that is a matter which those who believe in barking dogs should be astounded to find unmentioned in the legislative history. If "representatives" is given its normal meaning, on the other hand, there is no change in the law (except elimination of the intent requirement) and the silence is entirely understandable.

I frankly find it very difficult to conceive how it is to be determined whether "dilution" has occurred, once one has eliminated both the requirement of actual intent to disfavor minorities, and the principle that 10,000 minority votes throughout the State should have as much practical "electability" effect as 10,000 nonminority votes. How does one begin to decide, in such a system, how much elective strength a minority bloc ought to have? I do not assert that it is utterly impossible to impose "vote dilution" restrictions upon an electoral regime that is not based on the "one person, one vote" principle. Congress can define "vote dilution" to be whatever it will, within constitutional bounds. But my point is that "one person, one vote" is inherent in the normal concept of "vote dilution," and was an essential element of the pre-existing, judicially crafted definition under § 2; that Congress did not adopt any new definition;  that creating a new definition is a seemingly standardless task;  and that the word Congress selected ("representative") seems specifically designed to avoid these problems. The Court is stoic about the difficulty of defining "dilution" without a standard of purity, expressing its resolve to stand up to that onerous duty inescapably thrust upon it: "Even if serious problems lie ahead in applying the 'totality of the circumstances' described in § 2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress." Ante, at 403. One would think that Congress had said "candidates," rather than "representatives." In reality, however, it is the Court rather than Congress that leads us-quite unnecessarily and indeed with stubborn persistence-into this morass of unguided and perhaps unguidable judicial interference in democratic elections. The Court attributes to Congress not only the intent to mean something other than what it said, but also the intent to let district courts invent (for there is no precedent where "one person, one vote" did not apply that Congress could have been consulting) what in the world constitutes dilution of a vote that does not have to be equal.

Finally, the Court suggests that there is something "anomalous" about extending coverage under § 5 of the Voting Rights Act to the election of judges, while not extending coverage under § 2 to the same elections. Ante, at 402. This simply misconceives the different roles of § 2 and § 5. The latter requires certain jurisdictions to preclear changes in election methods before those changes are implemented; it is a means of assuring in advance the absence of all electoral illegality, not only that which violates the Voting Rights Act but that which violates the Constitution as well. In my view, judges are within the scope of § 2 for nondilution claims, and thus for those claims, § 5 preclearance would enforce the Voting Rights Act with respect to judges. Moreover, intentional discrimination in the election of judges, whatever its form, is constitutionally prohibited, and the preclearance provision of § 5 gives the government a method by which to prevent that. The scheme makes entire sense without the need to bring judges within the "to elect" provision.

All this is enough to convince me that there is sense to the ordinary meaning of "representative" in § 2(b)-that there is reason to Congress's choice-and since there is, then, under our normal presumption, that ordinary meaning prevails. I would read § 2 as extending vote dilution claims to elections for "representatives," but not to elections for judges. For other claims under § 2, however-those resting on the "to participate in the political process" provision rather than the "to elect" provision-no similar restriction would apply. Since the claims here are exclusively claims of dilution, I would affirm the judgment of the Fifth Circuit.

*  *   *   *   *   *

As I said at the outset, this case is about method. The Court transforms the meaning of § 2, not because the ordinary meaning is irrational, or inconsistent with other parts of the statute, see, e.g., Green v. Bock Laundry, 490 U.S. 504, 510-511, 109 S.Ct. 1981, 1985-1986, 104 L.Ed.2d 557 (1989); Public Citizen v. Department of Justice, 491 U.S., at 470, 109 S.Ct., at 2574 (KENNEDY, J., concurring in judgment), but because it does not fit the Court's conception of what Congress must have had in mind. When we adopt a method that psychoanalyzes Congress rather than reads its laws, when we employ a tinkerer's toolbox, we do great harm. Not only do we reach the wrong result with respect to the statute at hand, but we poison the well of future legislation, depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning. Our highest responsibility in the field of statutory construction is to read the laws in a consistent way, giving Congress a sure means by which it may work the people's will. We have ignored that responsibility today. I respectfully dissent.