Nos. 98-405 and 98-406
In the Supreme Court of the United States
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED ON REARGUMENT
1. Does the purpose prong of Section 5 of the Voting Rights Act of 1965
extend to a discriminatory but non-retrogressive purpose?
2. Assuming arguendo that Section 5 prohibits the implementation of a districting
plan enacted with a discriminatory, non-retrogressive purpose, does the
government or the covered jurisdiction bear the burden of proof on this
issue?
In the Supreme Court of the United States
No. 98-405
JANET RENO, ATTORNEY GENERAL, APPELLANT
v.
BOSSIER PARISH SCHOOL BOARD
No. 98-406
GEORGE PRICE, ET AL., APPELLANTS
v.
BOSSIER PARISH SCHOOL BOARD
ON APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF ON REARGUMENT
FOR THE FEDERAL APPELLANT
ARGUMENT
I. SECTION 5 OF THE VOTING RIGHTS ACT OF 1965 BARS IMPLEMENTATION OF A NEW
VOTING PRACTICE ENACTED WITH A RACIALLY DISCRIMINATORY PURPOSE, EVEN IF
THE NEW PRACTICE IS NOT RETROGRESSIVE IN PURPOSE OR EFFECT
In our original opening and reply briefs, we explain that Section 5 of the
Voting Rights Act of 1965 (Act), 42 U.S.C. 1973c, prohibits the implementation
by a covered jurisdiction of any new voting practice enacted with the purpose
of discriminating on the basis of race or color. That prohibition is not
limited to changes enacted with an intent to worsen the voting strength
of a minority group. This conclusion follows from the language of Section
5 (Opening Br. 18),1 the legislative history of its enactment in 1965 and
its reenactments in 1970, 1975, and 1982 (id. at 20-24), and this Court's
decisions (id. at 24-29), especially City of Pleasant Grove v. United States,
479 U.S. 462 (1987); Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd
mem., 459 U.S. 1166 (1983); and City of Richmond v. United States, 422 U.S.
358 (1975). To those points we add the following:
A. The text of Section 5 establishes that a new voting practice that has
a discriminatory, albeit nonretrogressive, purpose, may not be implemented.
Section 5 provides that a covered jurisdiction may implement a new voting
practice if it obtains a declaratory judgment from the United States District
Court for the District of Columbia that the practice "does not have
the purpose and will not have the effect of denying or abridging the right
to vote on account of race or color." 42 U.S.C. 1973c. A "purpose
* * * of denying or abridging the right to vote on account of race or color"
plainly includes a purpose to perpetuate an existing situation because it
denies or abridges black citizens' right to vote, and to resist further
black enfranchisement. For example, a new voting practice intended to prevent
the registration of black citizens who had previously been prohibited from
voting, or to keep new black registration to the minimum possible, would
have the purpose to deny or abridge black citizens' right to vote on account
of their race or color, even if that voting change was not designed to reduce
black voter participation further. Such a voting practice could not be precleared,
for it would not be a practice that "does not have the purpose * *
* of denying or abridging the right to vote on account of race."
None of that language suggests a limitation barring preclearance only of
new practices with a retrogressive purpose. Appellee suggests (Appellee
Br. 18) that the limitation to retrogression is found in the statutory phrase
"denying or abridging." A reading of "denying or abridging"
as limited to retrogression is untenable, however, in light of the structure
of the Voting Rights Act as a whole, including other provisions where the
same phrase is employed but where no limitation to retrogression may be
found.
For example, Section 3(c) of the Act, 42 U.S.C. 1973a(c), establishes a
preclearance procedure similar to that in Section 5 for jurisdictions where
a court has found a violation of the right to vote guaranteed by the Fourteenth
and Fifteenth Amendments justifying equitable relief. Under Section 3(c),
the court may order such a jurisdiction not to implement any voting change
unless the court or the Attorney General concludes that the new practice
"does not have the purpose and will not have the effect of denying
or abridging the right to vote on account of race or color." 42 U.S.C.
1973a(c). Yet Section 3(c)'s bar on implementation of new voting practices
that have a purpose "of denying or abridging the right to vote on account
of race or color" clearly is not limited to changes with a retrogressive
purpose; if it were so limited, then a jurisdiction that was adjudicated
to have engaged in intentional discrimination could simply implement a new
voting practice with the intent to perpetuate the same discrimination.2
Similarly, Section 2 of the Act, as originally enacted, see 42 U.S.C. 1973
(1970), prohibited the application of any voting qualification "to
deny or abridge the right of any citizen of the United States to vote on
account of race or color." Yet neither Congress nor this Court has
ever suggested that Section 2's prohibition against voting practices that
"deny or abridge the right * * * to vote on account of race or color"
was limited to retrogressive voting practices.3
Appellee's argument is based fundamentally on a serious misapprehension
of what this Court decided in Beer v. United States, 425 U.S. 130 (1976).
In Beer, this Court did not decide that the phrase "denying or abridging
the right to vote," as used in Section 5, refers only to retrogression.
Beer held, rather, that the term "effect," as used in Section
5, is limited to precluding enforcement of new voting practices that further
impair the voting strength of minorities. See id. at 141 ("It is thus
apparent that a legislative reapportionment that enhances the position of
racial minorities with respect to their effective exercise of the electoral
franchise can hardly have the 'effect' of diluting or abridging the right
to vote on account of race within the meaning of § 5.") (emphasis
added).
As we have explained (Opening Br. 29-31), the Court's interpretation of
"effect" in Section 5 in Beer reflected concerns about how far
Congress intended Section 5's effect prong to reach beyond the Constitution
itself. The Court observed that, under the district court's application
of Section 5 in Beer (which this Court rejected), Section 5's effect prong
would, as a practical matter, have been transformed into a statute prohibiting
all new voting practices with a disparate impact on minorities. See 425
U.S. at 136-137 & n.8; cf. id. at 143-144 (White, J., dissenting) (arguing
that Section 5 required "new electoral districts [to] afford the Negro
minority the opportunity to achieve legislative representation roughly proportional
to the Negro population in the community"). Almost simultaneously with
Beer, however, the Court concluded that proof of a violation of the Equal
Protection Clause of the Fourteenth Amendment requires a showing of discriminatory
intent, and that the Clause does not prohibit state action with only a disparate
impact on racial minorities. See Washington v. Davis, 426 U.S. 229 (1976).
The purpose prong of Section 5 raises no such questions about Congress's
intent to reach beyond the Constitution, however, because the purpose prong
reaches only new voting practices enacted with invidious intent, and therefore
precludes enforcement only of new voting practices that violate the Constitution
itself. Cf. Chisom v. Roemer, 501 U.S. 380, 416-417 (1991) (Scalia, J.,
dissenting) (observing that "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").
Beer did refer to Congress's "desire[] to prevent States from 'undo[ing]
or defeat[ing] the rights recently won'" by black citizens as a basis
for its holding. See 425 U.S. at 140 (initial brackets added). The Beer
opinion did so, however, in the context of explaining why Congress had required
covered jurisdictions to demonstrate to the Attorney General or the district
court "that the [voting] change does not have a discriminatory effect,"
ibid. (emphasis added)- not why Congress had prohibited enforcement of new
voting practices with a discriminatory purpose, which, the Court noted,
was not at issue in that case, see id. at 136 n.7.4 Further, the Beer opinion
expressed no doubt that even an ameliorative change might be denied preclearance
if it "so discriminates on the basis of race or color as to violate
the Constitution," id. at 141; see id. at 142 n.14 ("It is possible
that a legislative reapportionment could be a substantial improvement over
its predecessor in terms of lessening racial discrimination, and yet nonetheless
continue so to discriminate on the basis of race or color as to be unconstitutional.")
(emphasis added).5
Appellee objects (Appellee Br. 17) that, under our submission, the purpose
and effect prongs of Section 5 are not coterminous; a covered jurisdiction's
purpose to accomplish a particular "den[ial] or abridg[ment] [of] the
right to vote on account of race or color" would require denial of
preclearance, even though a voting change that merely had that incidental
effect could be precleared, if it were adopted with a racially neutral purpose
and were not retrogressive. It is a familiar principle, however, that "acts
generally lawful may become unlawful when done to accomplish an unlawful
end." City of Richmond v. United States, 422 U.S. 358, 379 (1975) (brackets
omitted). That principle has played an important role in this Court's jurisprudence
construing the Civil War Amendments.6 It is not surprising, therefore, that
a redistricting plan adopted for the purpose of preventing improvement in
blacks' voting strength would violate the Constitution and would be denied
preclearance under Section 5's purpose prong-even though the same redistricting
plan would not be unconstitutional and would therefore not be denied preclearance
if it were adopted for valid, racially neutral reasons, and if it had the
incidental, nonretrogressive effect of limiting improvement in racial minorities'
voting strength. See id. at 378 (emphasizing that it may be "forbidden
by § 5 to have the purpose and intent of achieving only what is a perfectly
legal result under that section," because an official action "taken
for the purpose of discriminating against Negroes on account of their race
has no legitimacy at all under our Constitution or under the statute").
B. The legislative history of the original enactment of Section 5 and its
three reenactments confirms that Congress intended to bar implementation
of all new voting practices that violate the Constitution because of their
purpose to deny or abridge minority citizens' right to vote, and not just
those changes intended to erode further the electoral position of minority
voters.
We have explained (Opening Br. 20-22) that Congress enacted Section 5 in
large part to overcome official resistance to the registration of black
voters, in particular ingenious state efforts that had successfully evaded
the effect of federal court decrees striking down state voting practices
preventing the registration of blacks.7 Congress was concerned that covered
jurisdictions would adopt new devices to freeze the existing disparity in
voter registration between blacks and whites. See H.R. Rep. No. 439, 89th
Cong., 1st Sess. 15-16 (1965); S. Rep. No. 162, 89th Cong., 1st Sess. Pt.
3, at 15-16 (1965) (joint views of 12 members of Senate Judiciary Committee);
see also 111 Cong. Rec. 9794 (1965) (remarks of Sen. Hart) ("Section
5 would enable the Attorney General and the courts to insure against changing
the laws since November [1964], which would have the effect of perpetuating
discrimination.") (emphasis added).
Attorney General Katzenbach's summary of litigation under the Civil Rights
Act of 1957, which was influential in securing passage of the Voting Rights
Act, see South Carolina v. Katzenbach, 383 U.S. 301, 313-315 (1966), emphasized
that the new legislation was needed because, despite the Justice Department's
"most vigorous efforts in the courts" to secure black citizens'
right to vote as guaranteed by the Fifteenth Amendment by challenging discriminatory
practices inhibiting black voter registration, "there has been case
after case of slow or ineffective relief." Voting Rights: Hearings
on H.R. 6400 Before Subcomm. No. 5 of the House Comm. on the Judiciary,
89th Cong., 1st Sess. 9 (1965) (House Hearings). In summarizing the unsatisfactory
outcome of the case-by-case approach and the need for Section 5's preclearance
remedy, the House Judiciary Committee stressed: "The judicial process
affords those who are determined to resist plentiful opportunity to resist.
Indeed, even after apparent defeat resisters seek new ways and means of
discriminating. Barring one contrivance too often has caused no change in
result, only in methods." H.R. Rep. No. 439, at 10; accord S. Rep.
No. 162, Pt. 3, at 5.
Especially in light of the evidence before Congress in 1965 that tests and
devices in covered jurisdictions had been highly effective in blocking most
black voter participation, it is simply implausible that Congress limited
Section 5's purpose prong to bar only new voting practices intended to make
matters even worse. Congress was informed, for example, that, in Wilcox
County, Alabama, there were zero blacks registered to vote (out of a black
voting age population of 6085, which was much larger than the white voting
age population of 2647), and that similar, exceedingly small numbers of
black citizens were registered to vote in numerous counties where discriminatory
tests and devices were administered. See S. Rep. No. 162, Pt. 3, at 44-45;
House Hearings 8, 32-37. Under the logic of appellee's argument, Section
5 had little if any role to play in those counties, because it would have
been difficult if not impossible to cause further diminishment in the voting
strength of black citizens there.8
The relevant committees, moreover, plainly perceived the function of Section
5 as enforcing the commands of the Constitution's prohibitions against official
racial discrimination in voting. The House Judiciary Committee summarized
Section 5's operation by stating that a covered jurisdiction "will
not be able to enforce [a new voting practice] without obtaining a declaratory
judgment that [it] does not have the purpose and will not have the effect
of denying or abridging rights guaranteed by the 15th amendment." H.R.
Rep. No. 439, at 26. Similarly, the supportive members of the Senate Judiciary
Committee stated that "so long as State laws or practices erecting
voting qualifications do not run afoul [of] the 15th amendment or other
provisions of the Constitution, they stand undisturbed." S. Rep. No.
162, Pt. 3, at 18. No suggestion was made of any limitation to new voting
practices intended to cause further encroachments on such constitutional
rights.
The legislative records of the reenactments of Section 5 also contradict
appellee's submission that Congress intended Section 5 only to address retrogression
of minority voting strength. When Section 5 was reenacted in 1970 and 1975,
the relevant congressional committees emphasized that the preclearance remedy
remained necessary because, although black citizens were no longer subject
to absolute denials of their right to vote through registration tests, covered
jurisdictions had attempted to preempt increased black voting strength by
adopting at-large elections, increasing filing fees, abolishing elective
offices, and extending the terms of white incumbents. See H.R. Rep. No.
397, 91st Cong., 1st Sess. 7 (1969); S. Rep. No. 295, 94th Cong., 1st Sess.
17 (1975). In 1975, both the Senate and House Judiciary Committees stated
with approval that it was "largely Section 5" that had been responsible
for gains in minority voting strength, see id. at 19; H.R. Rep. No. 196,
94th Cong., 1st Sess. 11 (1975)-an observation inconsistent with appellee's
submission that Section 5 was intended merely to prevent retrogression from
gains that minorities might have somehow achieved through other means. See
also City of Rome v. United States, 446 U.S. 156, 182 (1980) (observing
that Congress reenacted Section 5 in 1975 to preserve gains achieved "and
to promote further amelioration of voting discrimination" and "to
counter the perpetuation" of pervasive voting discrimination) (emphasis
added).
When Congress comprehensively reviewed the enforcement history of Section
5 in 1982 and reenacted it again, the definitive Senate Report did not describe
preventing retrogression as the sole function of Section 5. That Report
stressed, in fact, that Section 5 had been "designed to insure that
old devices for disenfranchisement would not simply be replaced by new ones,"
S. Rep. No. 417, 97th Cong., 2d Sess. 6 (1982), and that "[c]ontinued
progress toward equal opportunity in the electoral process will be halted
if we abandon the Act's crucial safeguards [in Section 5] now," id.
at 10. See also 128 Cong. Rec. 13,288 (1982) (remarks of Sen. Hatch) (favoring
continued preclearance because, among other things, "[f]ew would argue
that all traces of the discriminatory history that existed in some of the
covered jurisdictions have been eradicated"); id. at 13,293 (remarks
of Sen. Grassley) (observing that "[t]he gains in minority electoral
participation achieved through the protections of [Section 5] reflect the
success with which it has been implemented" and "[t]he strength
of the act as originally adopted lay in its power to proscribe discriminatory
practices as they evolved").
C. These materials demonstrate that the purpose prong of Section 5 has been
fundamental to dismantling the massive edifice of official racial discrimination
in voting that existed in 1965, has been equally important in preventing
the use of new discriminatory devices to perpetuate that discrimination
in other guises, and was never intended to be limited to new voting practices
that would make matters even worse (especially not worse than they were
in 1965). And as we have previously explained (Opening Br. 32-33), in 34
years of administering Section 5, the Justice Department has never limited
its "purpose" analysis in the administrative preclearance process
to an examination of a covered jurisdiction's "retrogressive purpose."9
Appellee's submission, however, would reduce the purpose prong of Section
5 to a trivial matter, limited to preventing enforcement of those voting
changes that are intended to cause retrogression but are destined to fail
in doing so (since any new voting practice that actually "will * *
* have the effect" of retrogression will be denied preclearance under
the effect prong). The Court should reject a construction of Section 5 that
would render its purpose prong so insignificant. Cf. Muscarello v. United
States, 524 U.S. 125, 136-137 (1998) (rejecting narrow construction of "carries"
in statute punishing one who "uses or carries" a firearm because,
having adopted a narrow construction of "uses," Court could not
"also construe 'carr[ies]' narrowly without undercutting the statute's
basic objective" and "leaving a gap in coverage that we do not
believe Congress intended").
II. A COVERED JURISDICTION BEARS THE BURDEN OF PROVING THAT ITS NEW VOTING
PRACTICE DOES NOT HAVE A DISCRIMINATORY PURPOSE
A. The text and legislative history of Section 5, as well as this Court's
decisions, establish that jurisdictions covered by Section 5 bear the burden
of proving the absence of a discriminatory purpose in their new voting practices.
1. Section 5 provides that, whenever a covered jurisdiction shall enact
or seek to administer a new voting practice, the jurisdiction "may
institute an action * * * for a declaratory judgment that" the new
voting practice does not have a prohibited purpose or effect. 42 U.S.C.
1973c. "[U]nless and until the court enters such judgment" in
favor of the covered jurisdiction, the new voting practice may not be enforced.
Ibid. The statute alternatively permits the jurisdiction to submit the new
voting practice to the Attorney General for preclearance, and provides that
a new practice "may be enforced * * * if the [new practice] has been
submitted * * * to the Attorney General and the Attorney General has not
interposed an objection within sixty days after such submission." Ibid.
Under the litigation framework established by Section 5, the covered jurisdiction
must initiate the preclearance action in district court, and may not enforce
its new voting changes until that action is resolved. The covered jurisdiction
is placed in the position of a plaintiff in a civil action who requests
that the court remove a legal impediment applicable to it. Traditionally
in civil litigation, the plaintiff bears the burden of proof in at least
its primary sense, viz., the risk of nonpersuasion. See 21 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure §
5122, at 553-557 (1977). Congress is presumed to be aware of such well-established
legal principles when it enacts legislation, see Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 185 (1988); Cannon v. University of Chicago, 441 U.S.
677, 699 (1979), and not to deviate from them absent express indication
in the statute, see Morissette v. United States, 342 U.S. 246, 261-262 (1952).
The text of Section 5 therefore places the risk of nonpersuasion in a preclearance
action on the covered jurisdiction. See McCain v. Lybrand, 465 U.S. 236,
257 (1984).
2. The legislative history of Section 5 makes abundantly clear that the
covered jurisdiction bears the burden of proof. The placement of the burden
of proof on covered jurisdictions was a significant focus of opposition
to the Voting Rights Act. During legislative hearings on the Act, Attorney
General Katzenbach was questioned several times about the burden of proof
and each time confirmed that it would lie with the covered jurisdiction.
House Hearings 87, 90, 93, 95. Opponents of the bill criticized the preclearance
provision because of its "presumption of the irregularity of State
voting laws, and the rules, regulations, and resolutions of its subdivisions"
and its requirement that a covered jurisdiction "absolve itself of
an automatically presumed guilt." H.R. Rep. No. 439, at 43 (views of
Republican Judiciary Committee members); see also S. Rep. No. 162, Pt. 2,
at 29 (statement of Thomas H. Watkins, submitted by Sens. Eastland, McClellan,
and Ervin, criticizing preclearance proposal because covered jurisdictions
must "secure[] an adjudication, with the accompanying burden of proof,"
that new voting practices would not discriminate) (emphasis in original).
During Congress's consideration of the first extension of Section 5, several
proposals were made to shift the burden of proof to the Attorney General.
The House Judiciary Committee rejected such proposals and observed:
The decision [in Allen v. State Board of Elections, 393 U.S. 544 (1969)]
underscores the advantage section 5 produces in placing the burden of proof
on a covered jurisdiction to show that a new voting law or procedure does
not have the purpose and will not have the effect of discriminating on the
basis of race or color. * * * Failure to continue this provision of the
act would jettison a vital element of the enforcement machinery. It would
reverse the burden of proof and restore time-consuming litigation as the
principal means of assuring the equal right to vote.
H.R. Rep. No. 397, at 8. Members of the Senate, whether supporting or opposing
the extension of Section 5, similarly understood it as placing the burden
of proof on the covered jurisdiction.10
When Congress reenacted Section 5 in 1975, it additionally made clear that
it intended the covered jurisdiction to shoulder the burden of proof in
both preclearance actions in the district court and in the Attorney General's
administrative review of voting changes. The House Judiciary Committee explained
that Section 5 "presumes that the change has the purpose or would have
the effect of discriminating on the basis of race or color. * * * If no
evidence is submitted to overcome the presumption the District Court or
the Attorney General must disapprove the change." H.R. Rep. No. 196,
at 59.
The Senate Report accompanying the 1982 extension of Section 5 shows that
Congress again determined that the covered jurisdiction's burden of proof
is central to enforcement of the Fourteenth and Fifteenth Amendments. In
describing the proper operation of Section 5's preclearance provisions,
the Senate Report stated that "[t]he Attorney General or the [United
States District Court for the District of Columbia] was required to withhold
approval until the submitting jurisdiction shows that the change will not
be discriminatory in purpose or effect. This provision was designed to insure
that old devices for disenfranchisement would not simply be replaced by
new ones." S. Rep. No. 417, at 6. The Subcommittee on the Constitution
described the operation of Section 5 in the same way: "A jurisdiction
seeking to preclear a voting change under section 5 has the burden of showing
* * * that the voting change under review 'does not have the purpose and
will not have the effect of denying or abridging['] the voting rights of
a covered minority group." Subcomm. on the Constitution of the Senate
Comm. on the Judiciary, 97th Cong., 2d Sess., Voting Rights Act: Report
on S. 1992, at 52-53 (Comm. Print 1982). Legislators who opposed the extension
of the Act in 1982 criticized Section 5 specifically because it placed the
burden of proving the "absence of discrimination" on covered jurisdictions.
See S. Rep. No. 417, at 220 (minority views of Sen. East); 128 Cong. Rec.
13,292 (1982) (remarks of Sen. Helms).
3. This Court has consistently held that Section 5 places the burden on
the covered jurisdiction to prove the absence of a discriminatory purpose.
City of Pleasant Grove, 479 U.S. at 469; see J.S. App. 34a-35a, 38a (Bossier
I); McCain v. Lybrand, 465 U.S. at 257; City of Rome, 446 U.S. at 187; Georgia
v. United States, 411 U.S. 526, 538 (1973); South Carolina v. Katzenbach,
383 U.S. at 335; see also City of Petersburg v. United States, 354 F. Supp.
1021, 1027 (D.D.C. 1972), aff'd mem., 410 U.S. 962 (1973).
In those decisions, the Court has identified several reasons why Congress
decided to impose the burden on the covered jurisdictions. In South Carolina
v. Katzenbach, the Court explained that, because Congress had found case-by-case
litigation to be inadequate to combat persistent discrimination in voting,
Congress had decided to "shift the advantage of time and inertia from
the perpetrators of the evil to its victims." 383 U.S. at 328. Moreover,
the Court stressed, given that covered jurisdictions had previously "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[,] * * * there was nothing inappropriate *
* * in putting the burden of proof on" covered jurisdictions seeking
preclearance. Id. at 335.
In Georgia v. United States, the Court rejected the contention that the
burden of proof in the administrative preclearance process must rest with
the Attorney General. In that case, Georgia challenged the Attorney General's
regulations governing administrative preclearance, which placed the burden
of proof on the jurisdiction submitting changes to the Attorney General
to show that its new voting practice would not have a prohibited purpose
or effect. The Court observed that "[i]t is well established that in
a declaratory judgment action under § 5, the plaintiff State has the
burden of proof," 411 U.S. at 538, and described the question before
it as whether the Attorney General was obligated to adopt a more lenient
approach towards covered jurisdictions in the administrative preclearance
process, or, put another way, whether the Attorney General "is without
power to object unless he has actually found that the changes contained
in a submission have a discriminatory purpose or effect," id. at 537.
Explaining that "[t]he alternative procedure of submission to the Attorney
General merely gives the covered State a rapid method of rendering a new
state election law enforceable," id. at 538 (internal quotation marks
omitted), the Court upheld the Attorney General's regulations because "[a]ny
less stringent standard might well have rendered the formal declaratory
judgment procedure a dead letter by making available to covered States a
far smoother path to clearance." Ibid.11
These decisions are consistent with a common-sense approach towards the
burden of proof in preclearance cases. Congress was concerned that covered
jurisdictions would employ new voting practices to evade the effect of the
suspension of discriminatory tests and devices in Section 4 of the Act,
42 U.S.C. 1973b. Congress therefore required covered jurisdictions to show
that their new voting practices were not merely attempts to perpetuate racial
discrimination by other means. Further, the covered jurisdiction is in possession
of most of the information relevant to establishing the validity vel non
of a new voting practice, including, most pertinently, evidence that would
bear on the question of its own purpose. Finally, given that Congress found
that the covered jurisdictions had engaged in intentional racial discrimination
in voting in the past, it was sensible for Congress to establish, in effect,
a presumption that future voting practices enacted by covered jurisdictions
would also have a discriminatory purpose, and to require those jurisdictions
to demonstrate that such a presumption was rebutted in a particular case.
B. Although, as we have shown, the burden of proof in preclearance cases
is on the covered jurisdiction, it is important not to exaggerate the onerousness
of that burden. In the litigation context, that burden means simply that
the jurisdiction must establish to the satisfaction of the preclearance
court by a preponderance of the evidence that its plan does not have a discriminatory
purpose and will not have a retrogressive effect. See Grogan v. Garner,
498 U.S. 279, 286 (1991) (preponderance-of-evidence standard is presumed
to govern in civil cases); see also City of Petersburg, 354 F. Supp. at
1027 (in the first Section 5 declaratory judgment action, district court
stated that "plaintiff must meet the burden placed upon it by the Voting
Rights Act of proving by the preponderance of the evidence that its change"
does not violate Section 5). In practical terms, the covered jurisdiction
and the United States (and any party permitted to intervene, as in this
case) each presents evidence to the preclearance court on the question of
the jurisdiction's intent and the voting change's likely effect, and the
risk of nonpersuasion falls on the jurisdiction. If the evidence is in equipoise,
or if the district court is in doubt about the proper outcome, then preclearance
should be denied. See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,
138-139 (1997) (where "burden of persuasion [is] on the proponent of
an order," and "when the evidence is evenly balanced, the proponent
loses"); cf. O'Neal v. McAninch, 513 U.S. 432, 437-438 (1995).
The Court's decision in Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265-266 (1977), provides the framework
for litigation on the question of purpose in preclearance cases, just as
it does in cases in which the burden of proof rests with a party seeking
to invalidate state action; the only difference in preclearance cases is
that the risk of nonpersuasion in the event of equipoise or doubt falls
on the covered jurisdiction. Thus, to demonstrate the absence of discriminatory
intent, the jurisdiction may explain the process by which it decided to
adopt the relevant new voting practice. Following Arlington Heights, id.
at 266-268, the jurisdiction may bring forward evidence on the impact of
the change, the historical background of the decision, the sequence of events
leading to the official action, adherence to nondiscriminatory factors ordinarily
considered important by the decisionmaker and to procedures ordinarily followed
in imposing its actions, and the legislative history, especially contemporary
statements by legislators. Discovery should give the government the opportunity
to test those assertions and to obtain any contrary or impeaching evidence.
Just as Arlington Heights instructs that departures from usual substantive
and procedural practices may indicate discriminatory intent, see id. at
267, evidence that decisions were taken in conformity with regular procedures
and traditional, nondiscriminatory substantive priorities can assist a jurisdiction
in demonstrating that a new voting practice lacks an invidious purpose.
In the administrative preclearance process, the Attorney General applies
a burden of proof similar to that applied by the preclearance court. See
28 C.F.R. 51.52(a). The history of Section 5 enforcement demonstrates, however,
that this burden of proof has not created any undue obstacle to preclearance
of covered jurisdictions' new voting practices. Covered jurisdictions continue
to choose the administrative process for the vast majority of voting changes;
our records show that only 62 declaratory judgment preclearance actions
have been filed since Section 5 was enacted. Further, the Attorney General
interposes no objection to the great majority of submissions. Although the
Department of Justice has received approximately 333,390 voting changes
submitted for preclearance review from the Act's enactment to July 22, 1999,
the Attorney General has interposed objections to fewer than 1% (3,071)
of those changes. The majority of those objections (about 60% of those made
in the 1990s) appear to have been made on the basis of discriminatory, but
nonretrogressive, purpose. The fact that the Department has objected to
only 3,071 new voting practices in more than 30 years indicates that the
Department's preclearance procedures are effective at identifying those
voting changes where there is reason to believe that an invidious purpose
is afoot without being unduly onerous to jurisdictions. See S. Rep. No.
417, at 49 (Senate report recommending extension of Act in 1982 found that
Department does not unduly burden jurisdictions when reviewing changes submitted
for preclearance).
Further, the Department's published procedures for preclearance submissions
provide jurisdictions with substantial guidance in establishing that their
proposed voting changes do not have a discriminatory purpose and will not
have a retrogressive effect. The procedural guidance informs jurisdictions
of the kind of information that is needed to facilitate the Attorney General's
review. See 28 C.F.R. 51.27, 51.28. The procedures are specifically designed
to elicit information bearing on the Arlington Heights factors for determining
whether a new voting practice has been enacted with an unconstitutional,
discriminatory purpose.12 Moreover, when the Department receives a submission,
it does not immediately proceed to a determination whether the jurisdiction
has met its burden of proof or interpose an objection in the event the jurisdiction
has failed to submit certain relevant information. When additional information
is necessary to complete the review, the Department's practice is to notify
submitting jurisdictions of that fact as promptly as possible, and to provide
them with the opportunity to supply such additional information before a
determination is made. See 28 C.F.R. 51.37(a) and (d).
C. Under the principles discussed above, the district court erred in granting
preclearance in this case. To the extent the district court may have considered
whether appellee's 1992 redistricting plan lacked a discriminatory (but
nonretrogressive) purpose, its analysis of that point is inconsistent with
the placement of the burden of proof on appellee. The district court stated
that "the record will not support a conclusion that extends beyond
the presence or absence of retrogressive intent." J.S. App. 3a. If
the record "will not support a conclusion" by the court on the
question of a discriminatory but nonretrogressive purpose, however, then
the risk of nonpersuasion should fall on the covered jurisdiction, not the
government and the intervenors. The district court also stated that it could
"imagine a set of facts that would establish a 'non-retrogressive,
but nevertheless discriminatory, purpose,' but those imagined facts are
not present here." Id. at 3a-4a. The question before the district court,
however, was not whether the proffered facts established a discriminatory
purpose, but whether they established the absence of a discriminatory purpose.13
Any finding made by the district court that appellee acted without a discriminatory
purpose, therefore, cannot be sustained on appeal.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JULY 1999
1 "Opening Br." refers to our principal brief on the merits filed
in March 1999; "Appellee Br." refers to appellee's brief on the
merits filed in April 1999.
2 See H.R. Rep. No. 439, 89th Cong., 1st Sess. 23 (1965) (Section 3(c) intended
"to insure against the erection of new and onerous discriminatory voting
barriers by State or political subdivisions which have been found to have
discriminated"); S. Rep. No. 162, 89th Cong., 1st Sess. Pt. 3, at 20
(1965) (similar); 111 Cong. Rec. 10,726 (1965) (remarks of Sen. Tydings)
(Section 3(c) aimed at state practices "designed to limit exercise
of the franchise in an effort to freeze the present Negro-white registration
disparity created by past violations of the 15th amendment"). The Department
of Justice applies both the purpose and effect prongs of Section 3(c) in
a manner consistent with our position on Section 5, viz., as prohibiting
enforcement of new voting practices that have a discriminatory purpose (whether
or not retrogressive) or will have a retrogressive effect. See 28 C.F.R.
51.8.
3 Since its amendment in 1982, Section 2 has prohibited the enforcement
of any voting practice "which results in a denial or abridgement of
the right * * * to vote on account of race or color." 42 U.S.C. 1973(a)
(1994). This Court has never suggested that the phrase "denial or abridgement"
in amended Section 2 refers to retrogression.
Although Section 2 and Section 5 have some language in common, the two provisions
do operate quite differently in several respects. First, Section 5 applies
only to new voting practices enacted or administered in certain States and
political subdivisions that fall within the coverage formulas of Section
4 of the Voting Rights Act, see 42 U.S.C. 1973b; 28 C.F.R. Pt. 51 App.;
Lopez v. Monterey County, 119 S. Ct. 693, 697 (1999), whereas Section 2
applies to all voting practices, old and new, and to the entire country.
Second, Section 5 prevents a covered jurisdiction from implementing a new
voting practice unless it has been precleared by the Attorney General or
the United States District Court for the District of Columbia, whereas Section
2 places no obligation on the part of a State or any political unit to obtain
preclearance of its voting practices. Third, a plaintiff challenging a voting
practice under Section 2 has the burden of proving its invalidity, see Thornburg
v. Gingles, 478 U.S. 30, 46, 51 (1986), whereas Section 5 places the burden
on the covered jurisdiction to show that preclearance is warranted, see
pp. 14-25, infra. Fourth, a showing of retrogression (as that concept has
been developed under the effect prong of Section 5) is neither necessary
nor sufficient to establish a violation of Section 2. As noted above, a
violation of Section 2 may be established by showing that the challenged
practice "results in" the denial or abridgment of the right to
vote on account of race or color, and that "results" standard
is met if the plaintiff shows that the "political processes leading
to nomination or election * * * are not equally open to participation"
by minorities. See 42 U.S.C. 1973(a) and (b). The "results" standard
of Section 2 is not the same as retrogression; a voting change may violate
Section 2 but not cause retrogression, and vice versa. Finally, since its
amendment in 1982, Section 2 has not required that the plaintiff show that
the jurisdiction acted with discriminatory intent. See Thornburg v. Gingles,
478 U.S. at 44. Thus, under Section 2, a plaintiff challenging a voting
practice may prevail if he shows that the challenged practice violates the
"results" standard (whether or not the practice is intentionally
discriminatory, and whether or not it is retrogressive), whereas under Section
5, a covered jurisdiction obtains preclearance if it shows that the new
voting practice is not intentionally discriminatory, and will not have a
retrogressive effect. None of the differences between Section 2 and Section
5, however, turns on possible differences in the meaning of "deny or
abridge the right to vote" as used in the two Sections.
4 Moreover, as the Court explained in City of Rome v. United States, 446
U.S. 156, 177 (1980), Section 5's prohibition against implementation of
voting changes with a retrogressive effect reaches those situations where,
even though invidious intent might not be readily discerned, there is nonetheless
a demonstrable "risk of purposeful discrimination" by a covered
jurisdiction.
5 It is of course true that Section 5 requires preclearance only of new
voting practices, but that point does not suggest that Congress intended
to bar preclearance only of those new practices that are designed to worsen
the electoral position of minorities. Rather, Congress required preclearance
of new voting practices because it was concerned that covered jurisdictions
might employ new discriminatory practices to frustrate the operation of
the Voting Rights Act in the way that they had previously frustrated judicial
decrees declaring discriminatory tests and devices to be invalid. See South
Carolina v. Katzenbach, 383 U.S. 301, 335 (1966); Allen v. State Bd. of
Elections, 393 U.S. 544, 567-568 (1969). In addition, if the Act had required
preclearance of all state voting practices, even those already in force
at the time the Act was passed, it would have caused a much more serious
intrusion on state interests, for it would have required each covered jurisdiction
to submit its entire election code to the Attorney General or the district
court for review and might have suspended elections in those jurisdictions
until such a review could have been completed. For the same reason, such
a requirement would probably have been impracticable.
6 See Hunter v. Underwood, 471 U.S. 222, 232-233 (1985) (even if disfranchisement
of persons convicted of crimes involving moral turpitude would be valid
if enacted for a racially neutral reason, racial motivation rendered it
invalid); Rogers v. Lodge, 458 U.S. 613, 617 (1982) (reiterating that, although
multimember districts are not unconstitutional per se, they are invalid
if "conceived or operated as purposeful devices to further racial discrimination");
Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (racial motivations invalidated
city boundary changes, even if those changes might be permissible if adopted
for neutral reasons).
7 This Court has stressed that Section 5 "must, of course, be interpreted
in light of its prophylactic purpose and the historical experience which
it reflects." McCain v. Lybrand, 465 U.S. 236, 246 (1984).
8 When the Voting Rights Act was adopted, only 6.4% of blacks of voting
age in the State of Mississippi were registered to vote, whereas 66% of
whites of voting age in that State were registered to vote. House Hearings
32. Appellee's argument implies that Section 5 was intended to deny preclearance
of new registration practices in Mississippi only insofar as those new practices
intended or would effectuate a further diminishment in black voting strength.
9 Although the Justice Department objects to fewer than 1% of the voting
changes submitted for preclearance (see pp. 22-23, infra), most of the objections
the Department has made on the basis of purpose have been to nonretrogressive
voting changes. From January 1, 1990, to July 23, 1999, the Department received
42,596 preclearance submissions, and interposed objections to changes in
367 of those submissions. More than 60% of those submissions were interposed
because, even though the changes were nonretrogressive, there was reason
to believe that the changes were enacted with a discriminatory purpose.
10 See 116 Cong. Rec. 5518, 5523 (1970) (statement of ten members of Senate
Judiciary Committee favoring extension) (noting that "[t]he burden
of proving the nondiscriminatory purpose and effect is on the governmental
body seeking exemption" and opposing bill reported by Senate Judiciary
Committee because it "would shift the all important burden of proof
which now rests on the jurisdiction seeking to implement the new practice
or procedure"); id. at 5677-5678 (remarks by Sens. Ervin, Allen, and
Tower); id. at 6154 (remarks by Sen. Fong) (among "crucial features
of strength contained in section 5" are that "the burden of proof
is placed upon the jurisdiction"; "[t]hose who know the law or
procedure best and what motivated its passage must come forward and explain
it").
11 Before this Court's decision on the prior appeal in this case, the Attorney
General's regulations provided that the Department of Justice would deny
preclearance of a voting change if "a bar to implementation of the
change [was] necessary to prevent a clear violation of amended section 2."
See 28 C.F.R. 51.55(b)(2) (1996). Of course, this Court's decision on the
prior appeal in this case rejected the government's position on that point
and made clear that the only effect warranting denial of preclearance is
a retrogressive effect. J.S. App. 38a. The regulation quoted above has been
repealed. 63 Fed. Reg. 24,108 (1998).
Appellee has pointed out (Appellee Br. 39-40) that, during the period in
which that regulation was in effect, the government assumed the burden of
proving that a new voting practice should be denied preclearance on the
ground that it would "clearly violate" the "results"
standard of Section 2. The government's assumption of the burden of proof
on that issue reflected its attempt to reconcile, on the one hand, this
Court's decisions in Beer and City of Lockhart v. United States, 460 U.S.
125 (1983), which ruled that a nonretrogressive voting change should not
be denied preclearance under the effect prong of Section 5, and on the other
hand, the legislative history of the 1982 reenactment of Section 5, which
indicated that a demonstration of vote dilution sufficient to establish
a violation of amended Section 2's "results" standard should lead
to denial of preclearance. See J.S. App. 42a; S. Rep. No. 417, at 12 n.31.
The government concluded that it would not be inconsistent with the decisions
in Beer and City of Lockhart to deny preclearance of a nonretrogressive
voting change if the government made a showing that the change would "clearly
violate" the "results" standard of amended Section 2.
This Court's decision on the prior appeal makes clear that the government's
attempt to reconcile amended Section 2's "results" standard with
Section 5's "effect" prong was in error, and could not be salvaged
by the government's assumption of the burden of proof on the Section 2 issue.
Therefore, there is no longer any basis for an argument that the burden
of proof in a Section 5 effect case should rest with the government. In
addition, where the issue is discriminatory purpose rather than effect,
the government has consistently maintained that the burden of proof rests
with the covered jurisdiction-a position well supported by this Court's
decisions, see pp. 17-19, supra-and the government has never assumed the
burden of proof on that issue.
12 Thus, with regard to the impact of the plan (which this Court has identified
as the "important starting point" for discerning invidious discriminatory
purpose, 429 U.S. at 266), the Department asks for information about the
"anticipated effect of the change on members of racial or language
minority groups," 28 C.F.R. 51.27(n), as well as demographic and geographical
information about the proposed change, id. § 51.28(a) and (b). The
Department's procedures also inform jurisdictions that the historical background
will be considered when evaluating the submissions. See id. § 51.58(b).
To evaluate the "sequence of events" leading to the proposed voting
change, the procedures explain that the Department will consider whether
the jurisdiction followed "objective guidelines and fair and conventional
procedures in adopting the change," id. § 51.57(b), and the extent
to which the jurisdictions afforded members of racial minority groups an
opportunity to participate in the decision, id. § 51.57(c). The procedures
also request evidence of contemporary statements by legislators, by asking
the jurisdictions to submit "[m]inutes or accounts of public hearings
concerning the proposed change," id. § 51.28(f)(3).
13 Moreover, as we have explained (Opening Br. 45; Reply Br. 13), a finding
by the district court that appellee did not enact its redistricting plan
with a discriminatory, nonretrogressive purpose (if such a finding was in
fact made) would be clearly erroneous and could not be squared with numerous
other findings made by that court. See J.S. App. 7a (appellee had "tenacious
determination to maintain the status quo"; evidence "establishes
rather clearly that [appellee] did not welcome improvement in the position
of racial minorities with respect to their effective exercise of the electoral
franchise"). At a minimum, evidence that appellee purposefully resisted
further improvement in black voting strength would rebut appellee's contention
that it acted without a discriminatory intent. The district court appears
to have evaluated that evidence, however, only to the extent that it might
have shown that appellee acted without a retrogressive intent. See ibid.
In addition, on the prior appeal in this case, this Court stated that the
district court should consider on remand the government's contention that
appellee had violated an injunction to remedy vestiges of its segregated
school system. Id. at 50a- 51a. The district court's opinion on remand,
however, addressed evidence on that point only with respect to retrogressive
intent, id. at 7a, and not a broader discriminatory intent. Evidence of
appellee's violation of a school desegregation decree is surely a fact that
would tend to rebut appellee's contention that its 1992 redistricting plan
does not have a discriminatory purpose.