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Subject: 90-757 & 90-1032 -- DISSENT, CHISOM v. ROEMER




    SUPREME COURT OF THE UNITED STATES


Nos. 90-757 and 90-1032


RONALD CHISOM, et al., PETITIONERS
v.
90-757
CHARLES E. ROEMER, GOVERNOR OF
LOUISIANA, et al.


UNITED STATES, PETITIONER
v.
90-1032
CHARLES E. ROEMER, GOVERNOR OF
LOUISIANA, et al.


on writs of certiorari to the united states court of appeals for the fifth
circuit

[June 20, 1991]


    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. ---, --- (1991)
(slip op., at 15-16); Demarest v. Manspeaker, 498 U. S. ---, --- (1991)
(slip op., at 6); United States v. Ron Pair Enterprises, Inc., 489 U. S.
235, 241 (1989); Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.
S. ---, --- (1990) (slip op., at 3-5); Caminetti v. United States, 242 U.
S. 470, 485 (1917); Public Citizen v. Department of Justice, 491 U. S. 440,
470 (1989) (Kennedy, J., concurring in judgment).

    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 MDRV 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 MDRV 2 extends to vote
dilution claims for the elections of representatives only, and judges are
not representatives.

I


    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 (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 22.  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 14, 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 (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 (1985); Williams v. United States, 458 U. S. 279, 294-295 (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 MDRV 2
would be to "withdr[aw] . . . an important category of elections from [the]
protection [of the Voting Rights Act]."  Ante, at 22.  There is absolutely
no question here of withdrawing protection.  Since the pre-1982 content of
MDRV 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 14, 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
MDRV 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. MDRV 1973(b) (emphasis added).


Though this text nowhere speaks of "vote dilution," Thorn burg v. Gingles,
478 U. S. 30 (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."  {1}  Under this interpretation, the other highlighted
phrase -- "to participate in the political process" -- is left for other,
non-dilution MDRV 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
MDRV 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 MDRV 2 can be made out, both conditions
of MDRV 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 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 15-16.

This is unquestionably wrong.  If both conditions must be violated before
there is any MDRV 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 MDRV 2 protection.  Since, as the Court's analysis suggests, the
"results" test of MDRV 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 Thornburg, create such mischief in the application
of MDRV 2, and even cast doubt upon the First Amendment, merely to deprive
the State of the argument that elections for judges remain covered by MDRV
2 even though they are not subject to vote dilution claims. {2}

    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 17-18.  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 (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. --- (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 (1989); Atascadero State Hospital v. Scanlon, 473
U. S. 234, 242 (1985); Pennhurst State School and Hospital v. Halder man,
465 U. S. 89, 99 (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 MDRV 2 in City of Rome v. United States, 446 U. S. 156, 178-180
(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 (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 (1973), and Whitcomb v. Chavis, 403
U. S. 124, 149 (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. 15 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 18.  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 (1986); Rogers v. Lodge, 458 U. S. 613, 624
(1982); id., at 639, n. 18, 641, n. 22, 649 (Stevens, J., dissenting); City
of Mobile v. Bolden, 446 U. S., at 75; United Jewish Organizations of
Williamsburgh, Inc. v. Carey, 430 U. S. 144, 158 (1977); Moore v. Ogilvie,
394 U. S. 814, 819 (1969); Allen v. State Board of Elections, 393 U. S.
544, 569 (1969).  We even used the phrase repeatedly in Thornburg.
Thornburg v. Gingles, 478 U. S., at 40, 44, 50, 54, 80; id., at 86, 103
(O'Connor, J., concurring in judgment); id., at 107 (opinion of Stevens,
J.).  And the phrase is used in the Complaint of the minority plaintiffs in
the other MDRV 2 case decoded today.  Houston Lawyers' Assn. v. Attorney
General of Texas, --- U. S. --- (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 MDRV 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 MDRV 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 (1965); Burns v. Richardson, 384 U.
S. 73, 88 (1966); Whit comb v. Chavis, supra, at 149-150; White v.
Regester, supra, at 765-767; see also Davis v. Bandemer, 478 U. S. 109,
131-132 (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, at 65.)
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, at 88.  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 MDRV 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 (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 MDRV 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 MDRV 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 21-22.  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 MDRV 5 of the Voting Rights Act to the election of
judges, while not extending coverage under MDRV 2 to the same elections.
Ante, at 20.  This simply misconceives the different roles of MDRV 2 and
MDRV 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 MDRV 2
for nondilution claims, and thus for those claims, MDRV 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 MDRV 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 MDRV 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 MDRV 2 as
extending vote dilution claims to elections for "representatives," but not
to elections for judges.  For other claims under MDRV 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 MDRV 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 (1989); Public Citizen v.
Department of Justice, 491 U. S., at 470 (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.







------------------------------------------------------------------------------
1
    As the Gingles Court noted, the plaintiffs' allegation was "that the
redistricting scheme impaired black citizens' ability to elect
representatives of their choice in violation of . . . MDRV 2 of the Voting
Rights Act," 478 U. S., at 35.  See also id., at 46, n. 12 ("The claim we
address in this opinion is . . . that their ability to elect the
representatives of their choice was impaired by the selection of a
multimember electoral structure").  And as we explained the requirement for
recovery in the case:

"Minority voters who contend that the multimember form of districting
violates MDRV 2 must prove that the use of a multimember electoral
structure operates to minimize or cancel out their ability to elect their
preferred candidates."  Id., at 48 (emphasis added).

While disagreeing with the Court's formulation of a remedy, the concurrence
acknowledged that this structure underlay the Court's analysis, pointing
out that in the Court's view

"minority voting strength is to be assessed solely in terms of the minority
group's ability to elect candidates it prefers. . . .  Under this approach,
the essence of a vote dilution claim is that the State has created
singlemember or multi-member districts that unacceptably impair the
minority group's ability to elect the candidates its members prefer."  Id.,
at 88 (emphasis added and deleted).

2
    The Court denies this conclusion follows, because, as it claims, it
"rests on the erroneous assumption that a small group of voters can never
influence the outcome of an election."  Ante, at 16 n. 24.  I make no such
assumption.  I only assume that by "to elect" the statute does not mean "to
influence," just as I assume that by "representatives" the statute does not
mean "judges."  We do not reject Conan Doyle's method of statutory
interpretation only to embrace Lewis Carroll's.