The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_2012/91_2012.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-2012
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JACKIE HOLDER, etc., et al., PETITIONERS v.
E. K. HALL, Sr., et al.
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[June 30, 1994]

  Justice O'Connor, concurring in part and concurring
in the judgment.
  I agree with Justices Kennedy and Thomas that a
plaintiff cannot maintain a 2 vote dilution challenge to
the size of a governing authority, though I reach that
conclusion by a somewhat different rationale.  Justice
Thomas rejects the notion that 2 covers any dilution
challenges, and would hold that 2 is limited to -state
enactments that regulate citizens' access to the ballot or
the processes for counting a ballot.-  Post, at 59.  As
Justice Stevens points out, however, stare decisis
concerns weigh heavily here.  Post, at 7-10 (opinion of
Stevens, J.); see also Thornburg v. Gingles, 478 U. S.
30, 84 (1986) (O'Connor, J., concurring in judgment)
(-We know that Congress intended to allow vote dilution
claims to be brought under 2-); id., at 87 (-I agree with
the Court that proof of vote dilution can establish a
violation of 2-).  These concerns require me to reject
Justice Thomas' suggestion that we overhaul our
established reading of 2.
  I also agree with Justice Blackmun, see post, at 1-6,
that our precedents compel the conclusion that the size
of the Bleckley County Commission is both a -standard,
practice, or procedure- under 2 and a -standard,
practice, or procedure with respect to voting- under 5.
See, e.g., Presley v. Etowah County Comm'n, 502 U. S.
___, ___ (1992) (slip op., at 11) (change in size is a
change in a -standard, practice, or procedure- because
the change -increase[s] or diminish[es] the number of
officials for whom the electorate may vote-); Lockhart v.
United States, 460 U. S. 125, 131-132 (1983) (change
from three-member commission to five-member commis-
sion is subject to 5 preclearance); City of Rome v.
United States, 446 U. S. 156, 160-161 (1980) (it -is not
disputed- that an expansion in the size of a Board of
Education is subject to 5 preclearance); Bunton v.
Patterson, decided with Allen v. State Board of Elections,
393 U. S. 544, 569-571 (1969) (change from elected to
appointed office is subject to 5 preclearance); Allen,
supra, at 566-567 (2 should be given -the broadest
possible scope-).
  As Justices Kennedy and Blackmun both recognize,
in these cases we have consistently said that a change
in size is a -standard, practice, or procedure with
respect to voting- that is subject to 5 preclearance.  See
ante, at 7 (opinion of Kennedy, J.); post, at 2-4
(Blackmun, J., dissenting).  And though our cases
involving size have concerned 5, I do not think it
possible to read the terms of 2 more narrowly than the
terms of 5.  Section 2 covers any -standard, practice, or
procedure,- while 5 covers any -standard, practice, or
procedure with respect to voting.-  As a textual matter,
I cannot see how a practice can be a -standard, practice,
or procedure with respect to voting,- yet not be a -stan-
dard, practice, or procedure.-  Indeed, the similarity in
language led to our conclusion in Chisom v. Roemer, 501
U. S. 380, 401-402 (1991), that, at least for determining
threshold coverage, 2 and 5 have parallel scope.
  But determining the threshold scope of coverage does
not end the inquiry, at least so far as 2 dilution
challenges are concerned.  As Justices Kennedy and
Blackmun agree, the fact that the size of a governing
authority is a -standard, practice, or procedure- does not
answer the question whether respondents may maintain
a 2 vote dilution challenge.  See ante, at 5 (opinion of
Kennedy, J.); post, at 6 (Blackmun, J., dissenting).
Section 2 vote dilution plaintiffs must establish that the
challenged practice is dilutive.  In order for an electoral
system to dilute a minority group's voting power, there
must be an alternative system that would provide
greater electoral opportunity to minority voters.  -Put
simply, in order to decide whether an electoral system
has made it harder for minority voters to elect the
candidates they prefer, a court must have an idea in
mind of how hard it `should' be for minority voters to
elect their preferred candidates under an acceptable
system.-  Gingles, 478 U. S., at 88 (O'Connor, J.,
concurring in judgment).  As we have said, -[u]nless
minority voters possess the potential to elect representa-
tives in the absence of the challenged structure or
practice, they cannot claim to have been injured by that
structure or practice.-  Id., at 50, n. 17 (emphasis in
original); see also id., at 99 (O'Connor, J., concurring in
judgment) (-the relative lack of minority electoral
success under a challenged plan, when compared with
the success that would be predicted under the measure of
undiluted minority voting strength the court is employ-
ing, can constitute powerful evidence of vote dilution-)
(emphasis added).
  Accordingly, to determine whether voters possess the
potential to elect representatives of choice in the absence
of the challenged structure, courts must choose an
objectively reasonable alternative practice as a bench-
mark for the dilution comparison.  On this, there is
general agreement.  See ante, at 5 (opinion of Kennedy,
J.) (-a court must find a reasonable alternative practice
as a benchmark against which to measure the existing
voting practice-); post, at 6 (Blackmun, J., dissenting)
(-the allegedly dilutive mechanism must be measured
against the benchmark of an alternative structure or
practice that is reasonable and workable under the facts
of the specific case-).  We require preclearance of
changes in size under 5, because in a 5 case the
question of an alternative benchmark never arises-the
benchmark is simply the former practice employed by
the jurisdiction seeking approval of a change.  See ante,
at 8 (opinion of Kennedy, J.).
  But 2 dilution challenges raise more difficult ques-
tions.  This case presents the question whether, in a 2
dilution challenge to size, there can ever be an objective
alternative benchmark for comparison.  And I agree with
Justice Kennedy that there cannot be.  As Justice
Kennedy points out, ante, at 5, the alternative bench-
mark is often self-evident.  In a challenge to a
multimember at-large system, for example, a court may
compare it to a system of multiple single-member
districts. See Gingles, supra, at 38, 50; Davidson,
Minority Vote Dilution: An Overview, in Minority Vote
Dilution 5 (C. Davidson ed. 1984).  Similarly, a court
may assess the dilutive effect of majority vote require-
ments, numbered posts, staggered terms, residency
requirements, or anti-single shot rules by comparing the
election results under a system with the challenged
practice to the results under a system without the
challenged practice.  Cf. City of Rome, supra, at
183-185; U. S. Comm'n on Civil Rights, The Voting
Rights Act: Ten Years After, pp. 206-208 (1975).  Note,
Application of Section 2 of the Voting Rights Act to
Runoff Primary Election Laws, 91 Colum. L. Rev. 1127,
1148 (1991).  Though there may be disagreements about
the precise appropriate alternative practice in these
cases, see Gingles, supra, at 88-89 (O'Connor, J.,
concurring in judgment), there are at least some objec-
tively determinable constraints on the dilution inquiry.
  This is not so with 2 dilution challenges to size,
however.  In a dilution challenge to the size of a
governing authority, choosing the alternative for compar-
ison-a hypothetical larger (or smaller) governing
authority-is extremely problematic.  See ante, at 6-7
(opinion of Kennedy, J.).  The wide range of possibilities
makes the choice inherently standardless.  Here, for
example, respondents argued that the single-member
commission structure was dilutive in comparison to a
five-member structure, in which African-Americans
would probably have been able to elect one representa-
tive of their choice.  Some groups, however, will not be
able to constitute a majority in one of five districts.
Once a court accepts respondents' reasoning, it will have
to allow a plaintiff group insufficiently large or geo-
graphically compact to form a majority in one of five
districts to argue that the jurisdiction's failure to estab-
lish a 10-, 15-, or 25-commissioner structure is dilutive.
See, e. g., Romero v. Pomona, 883 F. 2d 1418, 1425, n.
10 (CA9 1989); Heath, Managing the Political Thicket:
Developing Objective Standards in Voting Rights Litiga-
tion, 21 Stetson L. Rev. 819, 827 (1992) (-[O]nce one
departs from the current number of districts or other
objective standard, the test loses its validity as a
threshold standard-).
  Respondents argue that this concern with arbitrary
and standardless intrusions into the size of local
governing authority is overstated.  Respondents' princi-
pal support for this conclusion is that a five-member
commission is the most common size for Georgia.  But
a five-member commission is not the only common size
in Georgia: 22 Georgia counties have three-member
commissions (and one county has an 11-member com-
mission).  Moreover, there is no good reason why the
search for benchmarks should be limited to Georgia.
Expanding the search nationwide produces many
20-person county commissions in Tennessee, and
40-member commissions in Wisconsin.  DeSantis,
County Government: A Century of Change, in The
Municipal Yearbook 1989, pp. 80, 83.  In sum, respon-
dents do not explain how common an alternative practice
must be before it can be a reliable alternative bench-
mark for the dilution comparison, nor do they explain
where the search for alternative benchmarks should
begin and end.
  Respondents' failure to provide any meaningful princi-
ples for deciding future cases demonstrates the difficulty
with allowing dilution challenges to the size of a
governing authority.  Under respondents' open-ended
test, a wide range of state governmental bodies may be
subject to a dilution challenge.  Within each State there
are many forms of government, including county commis-
sions that range dramatically in size.  For example, the
majority of county commissions in New Jersey have
seven members, but three counties have smaller commis-
sions and one has a larger commission.  DeSantis,
Municipal Yearbook 1989, at 76. Similarly, in South
Carolina the norm is a seven-member commission, but
a number of counties deviate.  Id., at 79.  In Tennessee,
the average size for a county commission is 19 members,
but one county has as few as 9 and another has as
many as 40.  Id., at 80.  And in Wisconsin the average
size is 27 members, but the commission sizes range from
7 to 46.  Id., at 83.
  Nor are deviations from the norm limited to counties.
Statewide governing authorities also range dramatically
in size, and often do not correlate to the size of the
State.  For example, Texas has only 31 members in its
State Senate, while tiny Rhode Island has 50.  Council
of State Governments, State Elective Officials and the
Legislatures 1993-94, p. vi.  The Texas Senate is
smaller than the national average and the Rhode Island
Senate is larger.  Similarly, California has an unusually
small 80-person Assembly, while New Hampshire has a
400-person House.  Ibid.
  The discrepancies in size among state and local
governing authorities reinforce my concern that the
limiting principle offered by respondents will in practice
limit very little.  Though respondents purport to present
Bleckley County as unique, it is not.  County commis-
sions throughout New Jersey, South Carolina, Tennessee,
and Wisconsin, and the State Legislatures of Texas,
Rhode Island, California, and New Hampshire are ripe
for a dilution challenge under respondents' theory, since
they do not fit the norm for their State.  Moreover,
though my examples are some of the more extreme ones,
they are not alone.  In these cases, and perhaps in
many more, the potential reach of allowing dilution
challenges to size will not be meaningfully circumscribed
by the open-ended requirement that the alternative
benchmark be -reasonable and workable.-  Post, at 6
(Blackmun, J., dissenting).
  For these reasons, I concur in the conclusion that
respondents' dilution challenge to the size of the
Bleckley County Commission cannot be maintained
under 2 of the Voting Rights Act, and I join Parts I,
II-A, and III of Justice Kennedy's opinion.  Because
the Court appropriately reverses the judgment below and
remands for consideration of respondents' constitutional
claim of intentional discrimination, I also concur in the
judgment.