Presley v. Etowah County Commission/Dissent Stevens

Justice STEVENS, with whom Justice WHITE and Justice BLACKMUN join, dissenting.

In 1986, an important event occurred in each of two Alabama counties with long histories of white-dominated political processes. In Etowah County, a black commissioner was elected to the county commission for the first time in recent history, and in Russell County, two black commissioners were elected to the county commission for the first time in "modern times." App. to Juris. Statement of Appellant Presley 4a. Because of the three resolutions at issue in this case-two adopted in Etowah County after Commissioner Presley's election and one adopted in Russell County before the election of Commissioners Mack and Gosha-none of the three newly-elected black commissioners was able to exercise the decisionmaking authority that had been traditionally associated with his office.

As I shall explain, this is a case in which a few pages of history are far more illuminating than volumes of logic and hours of speculation about hypothetical line-drawing problems. Initially, however, it is important to note that a different decision in these cases would not impose any novel or significant burden on those jurisdictions that remain covered under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c.

Prior to these cases, federal courts had uniformly agreed with the Attorney General's interpretation that § 5 covered transfers of decisionmaking power that had a potential for discrimination against minority voters. On at least eight occasions since 1975, the Department of Justice has refused to preclear changes in the power of elected officials that had a potentially discriminatory impact on black voters. The Department has routinely precleared numerous other transfers of authority after determining that they had no discriminatory purpose or effect. There is no evidence that the prevailing practice imposed any special burden on covered jurisdictions. For example, in this fiscal year the Attorney General has processed over 17,000 preclearance requests, and has approved over 99 percent of them without any undue delay. It is, therefore, simply hyperbole for the Court to suggest that if we adopted the Attorney General's position in this case "neither state nor local governments could exercise power in a responsible manner within a federal system." Ante, at 507.

In all of our prior cases interpreting § 5 of the Voting Rights Act, the Court has agreed with the Attorney General's construction of this important statute. I share the Court's view that the "considerable deference" to which the Attorney General's construction is entitled does not mean automatic "acquiescence," ante, at 508; however, I strongly disagree with the Court that our task in these cases is "to formulate workable rules to confine the coverage of § 5 to its legitimate sphere:  voting." Ante, at 506. For reasons that I shall explain, even if the Attorney General, participating in these cases as amicus curiae, has asked the Court to adopt a broader rationale than is necessary or appropriate, a narrower basis for a decision is obviously available in the Etowah County case and, in my judgment, in the Russell County case as well.

* The original enactment of § 5, the interpretations of the Act by this Court and by the Attorney General, and the reenactment of the statute by Congress in light of those interpretations, reveal a continuous process of development in response to changing conditions in the covered jurisdictions.

The central purpose of the original Act was to eliminate the various devices, such as literacy tests, requirements of "good moral character," vouchers, and poll taxes, that had excluded black voters from the registration and voting process in the southern States for decades. As we explained in McCain v. Lybrand, 465 U.S. 236, 104 S.Ct. 1037, 79 L.Ed.2d 271 (1984): "The Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973     et seq. (1976 ed. and Supp. V), was enacted by Congress as a      response to the "unremitting and ingenious defiance" of the      command of the Fifteenth Amendment for nearly a century by      state officials in certain parts of the Nation.  South      Carolina v. Katzenbach, 383 U.S. 301, 309 [86 S.Ct. 803, 808,      15 L.Ed.2d 769] (1966).  Congress concluded that case-by-case      litigation under previous legislation was an unsatisfactory      method to uncover and remedy the systematic discriminatory      election practices in certain areas:  such lawsuits were too      onerous and time-consuming to prepare, obstructionist tactics      by those determined to perpetuate discrimination yielded      unacceptable delay, and even successful lawsuits too often      merely resulted in a change in methods of discrimination. E.g., H.R.Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided "to shift the advantage of time and inertia     from the perpetrators of the evil to its victims," 383 U.S.,      at 328 [86 S.Ct., at 818], and enacted "stringent new      remedies" designed to "banish the blight of racial      discrimination in voting" once and for all, id., at 308 [86      S.Ct., at 808]."  Id., at 243-244, 104 S.Ct., at 1042-1043      (footnote omitted).

During the first few years after the enactment of § 5, the federal courts gave its text a narrow literal construction that confined its coverage to the political subdivisions that registered voters and to the practices that directly concerned the registration and voting process. Prior to the Court's decision in ''Allen v. State Bd. of Elections,'' 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), only three States submitted any changes to the Attorney General for preclearance and a total of only 323 changes were submitted during the first five years of administration. At that time, the covered jurisdictions were able to respond to the increase in the number of black registered voters by means that prevented the newly registered minority voters from having a proportionate impact on the political process.

In Allen and its companion cases, however, the Court held that some of these responses, even if not described in the literal text of the Act, were nevertheless included within the scope of § 5. Relying heavily on the statutory definition of voting as encompassing "all action necessary to make a vote effective,' " 393 U.S., at 565-566, 89 S.Ct., at 831-832, and the broad remedial purposes of the Act, the Court held that a change from district to at-large voting for county supervisors, a change that made an important county office appointive rather than elective, and a change that altered the requirements for independent candidates, were all covered voting practices. Id., at 569-571, 89 S.Ct., at 833-834. Thus, § 5 was not limited to changes directly affecting the casting of a ballot. Id., at 569, 89 S.Ct., at 833 ("The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 [84 S.Ct. 1362, 1378, 12 L.Ed.2d 506] (1964)"). Nothing in Allen implied that the Court had defined an exhaustive category of changes covered by the Act. On the contrary, the Court described § 5 as "aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race," id., at 565, 89 S.Ct., at 831, and expressed, in no uncertain terms, that § 5 should be given "the broadest possible scope." Id., at 567, 89 S.Ct., at 832. Aware of the consequences of its decision, the Court gave its broad reading of the Act "only prospective effect." Id., at 572, 89 S.Ct., at 835.

The Court's construction of the Act in Allen, as requiring preclearance of changes in covered jurisdictions that were responsive to the increase in the number of black registered voters, was consistent with the concern that justified the extraordinary remedy set forth in § 5 itself, particularly the concern that recalcitrant white majorities could be expected to devise new stratagems to maintain their political power if not closely scrutinized.

"The rationale of this 'uncommon exercise' of congressional     power which sustained its constitutional validity was a      presumption that jurisdictions which had" resorted to the      extraordinary stratagem of contriving new rules of various      kinds for the sole purpose of perpetuating voting      discrimination in the face of adverse federal court decrees"      would be likely to engage in "similar maneuvers in the future      in order to evade the remedies for voting discrimination contained in the Act itself." South Carolina v. Katzenbach, supra [383 U.S.,] at 334, 335 [86 S.Ct., at 821, 822] (footnote omitted).  This provision must, of course, be interpreted in light of its prophylactic purpose and the historical experience which it reflects.  See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 151 [101 S.Ct. 2224, 2237, 68 L.Ed.2d 724] (1981)." McCain v. Lybrand, 465 U.S., at 245-246, 104 S.Ct., at 1043-1044.

Thus, § 5 was understood to be "a 'vital element' of the Act," and was designed to be flexible enough to ensure that "new subterfuges will be promptly discovered and enjoined." Id., at 248, 104 S.Ct., at 1045 (citation omitted). Section 5, as construed by the Court, was not limited to a "simple inventory of voting procedures," but rather, was understood to address "the reality of changed practices as they affect Negro voters." Georgia v. United States, 411 U.S. 526, 531, 93 S.Ct. 1702, 1706, 36 L.Ed.2d 472 (1973).

In subsequent cases, this Court has reaffirmed the broad scope of § 5 coverage, as first articulated by the Court in Allen. The Court has interpreted § 5 expansively and has said in the context of candidate qualification that a statute requiring independent candidates to declare their intention to seek office two months earlier than under the previous procedures created a barrier to candidacy and required § 5 preclearance, Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), and in other contexts, that preclearance is required when there is a change in polling places, Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), an alteration in municipal boundaries, City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), reapportionment and redistricting plans, Georgia v. United States, 411 U.S., at 532-533, 93 S.Ct., at 1706-1707, and the introduction of numbered posts and staggered terms, Lockhart v. United States, 460 U.S. 125, 131, 132, 134-135, 103 S.Ct. 998, 1002, 1003, 1004, 74 L.Ed.2d 863 (1983).

The reenactment of § 5 in 1970, Pub.L. 91-285, 84 Stat. 314, in 1975, Pub.L. 94-73, 89 Stat. 400, and in 1982, Pub.L. 97-205, 96 Stat. 131, reflected congressional approval of Allen's broad interpretation of the Act. Indeed, congressional comments quoted in our opinion in Perkins v. Matthews, supra, expressly endorsed an interpretation of § 5 that takes into account white resistance to progress in black registration.

"One Congressman who had supported the 1965 Act     observed, 'When I voted for the Voting Rights Act of 1965, I      hoped that 5 years would be ample time.  But resistance to      progress has been more subtle and more effective than I      thought possible.  A whole arsenal of racist weapons has been      perfected.  Boundary lines have been gerrymandered, elections      have been switched to an at-large basis, counties have been      consolidated, elective offices have been abolished where blacks had a chance of winning, the appointment process has been substituted for the elective process, election officials have withheld the necessary information for voting or running for office, and both physical and economic intimidation have been employed.

" 'Section 5 was intended to prevent the use of most of     these devices.' "  400 U.S., at 389, n. 8, 91 S.Ct., at 437,      n. 8.

Since the decision in Allen, the debate on reenactment of § 5 in 1970, and the issuance of regulations by the Department of Justice, it has been recognized that the replacement of an elective office that might be won by a black candidate with an appointive office is one of the methods of maintaining a white majority's political power that § 5 was designed to forestall. As a practical matter, such a change has the same effect as a change that makes an elected official a mere figurehead by transferring his decisionmaking authority to an appointed official, or to a group of elected officials controlled by the majority. Although this type of response to burgeoning black registration may not have been prevalent during the early history of the Act, it has been an active concern of the Attorney General since 1976. See supra, n. 3. In my judgment, such a change in the reallocation of decisionmaking authority in an elective office, at least in its most blatant form, is indistinguishable from, and just as unacceptable as, gerrymandering boundary lines or switching elections from a district to an at-large basis.

The two resolutions adopted by the Etowah County Commission on August 25, 1987, less than 9 months after the county's first black commissioner took office, were an obvious response to the redistricting of the county that produced a majority black district from which a black commissioner was elected. In my view, it was wrong for the District Court to divorce the two parts of this consolidated response and to analyze the two resolutions separately. The characterization of the Road Supervision Resolution as a change with a "potential for discrimination" that was "blatant and obvious," App. to Juris. Statement of Appellant Presley 20a, and that should be enjoined unless subjected to § 5 preclearance, id., at 21a, 23a, applies equally to the Common Fund Resolution. Both resolutions diminished the decisionmaking authority of the newly-elected black commissioner, and both were passed on the same day and in response to the districting changes effected by the consent decree.

At the very least, I would hold that the reallocation of decisionmaking authority of an elective office that is taken (1) after the victory of a black candidate, and (2) after the entry of a consent decree designed to give black voters an opportunity to have representation on an elective body, is covered by § 5.

Similar considerations supported the Court's decision in ''Dougherty County Bd. of Education v. White,'' 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978). Dougherty involved a rule requiring an employee of the school system to take a leave of absence while running for or holding a public office. The Court recognized that the rule in question operated in effect as a filing fee, hitting hardest those who were least able to afford it, and that it implicated the political process to the same extent as had changes in the location of polling places, Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), and alterations in the procedures for casting a write-in vote, ''Allen v. State Bd. of Elections,'' 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). The Dougherty Court also observed that the circumstances surrounding the Rule's adoption were "sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance." 439 U.S., at 42, 99 S.Ct., at 374. The rule had been adopted by an area with a long history of racial discrimination in voting, after the first black to seek public office announced his candidacy. Ibid. In the Etowah County case, as in Dougherty, the circumstances surrounding the adoption of the resolutions are similarly suggestive of the potential for discrimination and should require § 5 preclearance.

Although the test I propose here may not adequately implement § 5, it would certainly provide a workable rule that would result in the correct disposition of this case without opening the Pandora's box that the Court seems to fear.

The record indicates that the resolution challenged in the Russell County case may well have had a nondiscriminatory, anticorruption purpose. It would not be covered by the narrow standard that I have proposed as a "workable rule" for deciding the Etowah County case. I would, however, adopt a broader standard that would require preclearance in this case as well. The proper test, I believe, is suggested by the examples of resistance to the increase in black registration that were noted in our opinion in Perkins v. Matthews, supra.

Changes from district voting to at-large voting, the gerrymandering of district boundary lines, and the replacement of an elected official with an appointed official, all share the characteristic of enhancing the power of the majority over a segment of the political community that might otherwise be adequately represented. A resolution that reallocates decisionmaking power by transferring authority from an elected district representative to an official, or a group, controlled by the majority, has the same potential for discrimination against the constituents in the disadvantaged districts. The Russell County Resolution satisfies that test, and therefore, like both Etowah County Resolutions, should have been precleared. To hold otherwise, as the Court does today, leaves covered States free to evade the requirements of § 5, and to undermine the purpose of the Act, simply by transferring the authority of an elected official, who happens to be black, to another official or group controlled by the majority.

The Court today rejects the Attorney General's position that transfers of authority are covered under § 5 when "they implicate the decisionmaking authority of elected officials." Ante, at 509. It does so because it fears that such a rule creates line-drawing problems and moves too far afield from "voting." Whether or not the rationale advocated by the Attorney General in this case is appropriate, his judgment concerning the proper disposition of these two cases is unquestionably correct.

I would therefore reverse in both cases.