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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 Thomas, with whom Justice Scalia joins,
concurring in the judgment.
We are asked in this case to determine whether the
size of a local governing body is subject to challenge
under 2 of the Voting Rights Act as a -dilutive-
practice. While I agree with Justices Kennedy and
O'Connor that the size of a governing body cannot be
attacked under 2, I do not share their reasons for
reaching that conclusion. Justice Kennedy persuasively
demonstrates that there is no principled method for
determining a benchmark against which the size of a
governing body might be compared to determine whether
it dilutes a group's voting power. Both he and Justice
O'Connor rely on that consideration to conclude that
size cannot be challenged under 2 of the Act. See ante,
at 5-7, 10 (opinion of Kennedy, J.); ante, at 4-7
(O'Connor, J., concurring in part and concurring in
judgment).
While the practical concerns Justices Kennedy and
O'Connor point out can inform a proper construction of
the Act, I would explicitly anchor analysis in this case
in the statutory text. Only a -voting qualification or
prerequisite to voting or standard, practice, or proce-
dure- can be challenged under 2. I would hold that the
size of a governing body is not a -standard, practice, or
procedure- within the terms of the Act. In my view,
however, the only principle limiting the scope of the
terms -standard, practice, or procedure- that can be
derived from the text of the Act would exclude, not only
the challenge to size advanced today, but also challenges
to allegedly dilutive election methods that we have
considered within the scope of the Act in the past.
I believe that a systematic reassessment of our
interpretation of 2 is required in this case. The broad
reach we have given the section might suggest that the
size of a governing body, like an election method that
has the potential for diluting the vote of a minority
group, should come within the terms of the Act. But
the gloss we have placed on the words -standard,
practice, or procedure- in cases alleging dilution is at
odds with the terms of the statute and has proved
utterly unworkable in practice. A review of the current
state of our cases shows that by construing the Act to
cover potentially dilutive electoral mechanisms, we have
immersed the federal courts in a hopeless project of
weighing questions of political theory-questions judges
must confront to establish a benchmark concept of an
-undiluted- vote. Worse, in pursuing the ideal measure
of voting strength, we have devised a remedial mecha-
nism that encourages federal courts to segregate voters
into racially designated districts to ensure minority
electoral success. In doing so, we have collaborated in
what may aptly be termed the racial -balkaniz[ation]- of
the Nation. Shaw v. Reno, 509 U. S. ___, ___ (1993)
(slip op., at 26).
I can no longer adhere to a reading of the Act that
does not comport with the terms of the statute and that
has produced such a disastrous misadventure in judicial
policymaking. I would hold that the size of a govern-
ment body is not a -standard, practice, or procedure-
because, properly understood, those terms reach only
state enactments that limit citizens' access to the ballot.
I
If one surveys the history of the Voting Rights Act, 42
U. S. C. 1973 et seq., one can only be struck by the sea
change that has occurred in the application and enforce-
ment of the Act since it was passed in 1965. The
statute was originally perceived as a remedial provision
directed specifically at eradicating discriminatory
practices that restricted blacks' ability to register and
vote in the segregated South. Now, the Act has grown
into something entirely different. In construing the Act
to cover claims of vote dilution, we have converted the
Act into a device for regulating, rationing, and appor-
tioning political power among racial and ethnic groups.
In the process, we have read the Act essentially as a
grant of authority to the federal judiciary to develop
theories on basic principles of representative govern-
ment, for it is only a resort to political theory that can
enable a court to determine which electoral systems
provide the -fairest- levels of representation or the most
-effective- or -undiluted- votes to minorities.
Before I turn to an analysis of the text of 2 to
explain why, in my view, the terms of the statute do not
authorize the project the we have undertaken in the
name of the Act, I intend first simply to describe the
development of the basic contours of vote dilution
actions under the Voting Rights Act. An examination
of the current state of our decisions should make
obvious a simple fact that for far too long has gone
unmentioned: vote dilution cases have required the
federal courts to make decisions based on highly political
judgments-judgments that courts are inherently ill-
equipped to make. A clear understanding of the
destructive assumptions that have developed to guide
vote dilution decisions and the role we have given the
federal courts in redrawing the political landscape of the
Nation should make clear the pressing need for us to
reassess our interpretation of the Act.
A
As it was enforced in the years immediately following
its enactment, the Voting Rights Act of 1965, Pub. L.
89-110, 79 Stat. 437, was perceived primarily as
legislation directed at eliminating literacy tests and
similar devices that had been used to prevent black
voter registration in the segregated South. See A.
Thernstrom, Whose Votes Count? Affirmative Action and
Minority Voting Rights 17-27 (1987) (hereinafter
Thernstrom). See also Guinier, The Representation of
Minority Interests: The Question of Single-Member
Districts, 14 Cardozo L. Rev. 1135, 1151 (1993) (refer-
ring to actions securing access to the ballot as the -first
generation- of Voting Rights Act claims). This focus in
enforcement flowed, no doubt, from the emphasis on
access to the ballot apparent in the central provision of
the Act, 4, which used a mathematical formula based
on voter registration and turnout in 1964 to define
certain -covered- jurisdictions in which the use of
literacy tests was immediately suspended. Pub. L.
89-110, 4, 79 Stat. 438. Section 6 of the Act reflected
the same concern for registration as it provided that
federal examiners could be dispatched to covered
jurisdictions whenever the Attorney General deemed it
necessary to supervise the registration of black voters.
1973d. And to prevent evasion of the requirements of
4, 5 required that covered jurisdictions obtain
-preclearance- from the Department of Justice before
altering any -voting qualification or prerequisite to
voting, or standard, practice, or procedure with respect
to voting.- 1973c.
The Act was immediately and notably successful in
removing barriers to registration and ensuring access to
the ballot. For example, in Mississippi, black registra-
tion levels skyrocketed from 6.7% to 59.8% in a mere
two years; in Alabama the increase was from 19.3% to
51.6% in the same time period. See Thernstrom 18. By
the end of 1967, black voter registration had reached at
least 50% in every covered State. See B. Grofman, L.
Handley, & R. Niemi, Minority Representation and the
Quest for Voting Equality 22 (1992).
The Court's decision in Allen v. State Bd. of Elections,
393 U. S. 544 (1969), however, marked a fundamental
shift in the focal point of the Act. In an opinion dealing
with four companion cases, the Allen Court determined
that the Act should be given -the broadest possible
scope.- Id., at 567. Thus, in Fairley v. Patterson, the
Court decided that a covered jurisdiction's switch from
a districting system to an at-large system for election of
county supervisors was a -standard, practice, or proce-
dure with respect to voting,- subject to preclearance
under 5. Id., at 569. Stating that the Act -was aimed
at the subtle, as well as the obvious, state regulations
which have the effect of denying citizens their right to
vote because of their race,- id., at 565, the Court
reasoned that 5's preclearance provisions should apply,
not only to changes in electoral laws that pertain to
registration and access to the ballot, but to provisions
that might -dilute- the force of minority votes that were
duly cast and counted. See id., at 569. The decision in
Allen thus ensured that the terms -standard, practice, or
procedure- would extend to encompass a wide array of
electoral practices or voting systems that might be
challenged for reducing the potential impact of minority
votes.
As a consequence, Allen also ensured that courts
would be required to confront a number of complex and
essentially political questions in assessing claims of vote
dilution under the Voting Rights Act. The central
difficulty in any vote dilution case, of course, is deter-
mining a point of comparison against which dilution can
be measured. As Justice Frankfurter observed several
years before Allen, -[t]alk of `debasement' or `dilution' is
circular talk. One cannot speak of `debasement' or
`dilution' of the value of a vote until there is first
defined a standard of reference as to what a vote should
be worth.- Baker v. Carr, 369 U. S. 186, 300 (1962)
(Frankfurter, J., dissenting). See also Thornburg v.
Gingles, 478 U. S. 30, 88 (1986) (O'Connor, J., concur-
ring in judgment) (-[I]n 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-). But in setting the benchmark of
what -undiluted- or fully -effective- voting strength
should be, a court must necessarily make some judg-
ments based purely on an assessment of principles of
political theory. As Justice Harlan pointed out in his
dissent in Allen, the Voting Rights Act supplies no rule
for a court to rely upon in deciding, for example,
whether a multimember at-large system of election is to
be preferred to a single-member district system; that is,
whether one provides a more -effective- vote than
another. -Under one system, Negroes have some
influence in the election of all officers; under the other,
minority groups have more influence in the selection of
fewer officers.- Allen, supra, at 586 (opinion concurring
in part and dissenting in part). The choice is inherently
a political one, and depends upon the selection of a
theory for defining the fully -effective- vote-at bottom,
a theory for defining effective participation in represen-
tative government. In short, what a court is actually
asked to do in a vote dilution case is -to choose among
competing bases of representation-ultimately, really,
among competing theories of political philosophy.-
Baker, supra, at 300 (Frankfurter, J., dissenting).
Perhaps the most prominent feature of the philosophy
that has emerged in vote dilution decisions since Allen
has been the Court's preference for single-member
districting schemes, both as a benchmark for measuring
undiluted minority voting strength and as a remedial
mechanism for guaranteeing minorities undiluted voting
power. See, e. g., Growe v. Emison, 507 U. S. ___, ___
(1993) (slip op., at 14); Gingles, supra, at 50, n. 17
(declaring that the -single-member district is generally
the appropriate standard against which to measure
minority group potential to elect-); Mobile v. Bolden, 446
U. S. 55, 66, n. 12 (1980) (plurality opinion) (noting that
single-member districts should be preferred in court-
ordered remedial schemes); Connor v. Finch, 431 U. S.
407, 415 (1977) (same). Indeed, commentators surveying
the history of voting rights litigation have concluded
that it has been the objective of voting rights plaintiffs
to use the Act to attack multimember districting
schemes and to replace them with single-member
districting systems drawn with majority-minority
districts to ensure minority control of seats. See
Guinier, 14 Cardozo L. Rev., at 1151; Guinier 49-54;
Thernstrom 193.
It should be apparent, however, that there is no
principle inherent in our constitutional system, or even
in the history of the Nation's electoral practices, that
makes single-member districts the -proper- mechanism
for electing representatives to governmental bodies or for
giving -undiluted- effect to the votes of a numerical
minority. On the contrary, from the earliest days of the
Republic, multimember districts were a common feature
of our political systems. The Framers left unanswered
in the Constitution the question whether congressional
delegations from the several States should be elected on
a general ticket from each State as a whole or under a
districting scheme and left that matter to be resolved by
the States or by Congress. See U. S. Const., Art. I, 4,
cl. 1. It was not until 1842 that Congress determined
that Representatives should be elected from single-
member districts in the States. See Act of June 25,
1842, ch. 47, 5 Stat. 491. Single-member districting
was no more the rule in the States themselves, for the
Constitutions of most of the 13 original States provided
that representatives in the state legislatures were to be
elected from multimember districts. Today, although
they have come under increasing attack under the Vot-
ing Rights Act, multimember district systems continue
to be a feature on the American political landscape,
especially in municipal governments. See The Municipal
Yearbook 14 (table) (1988) (over 60% of American cities
use at-large election systems for their governing bodies).
The obvious advantage the Court has perceived in
single-member districts, of course, is their tendency to
enhance the ability of any numerical minority in the
electorate to gain control of seats in a representative
body. See Gingles, 478 U. S., at 50-51. But in choosing
single-member districting as a benchmark electoral plan
on that basis the Court has made a political decision
and, indeed, a decision that itself depends on a prior
political choice made in answer to Justice Harlan's
question in Allen. Justice Harlan asked whether a
group's votes should be considered to be more -effective-
when they provide influence over a greater number of
seats, or control over a lesser number of seats. See 393
U. S., at 586. In answering that query, the Court has
determined that the purpose of the vote-or of the fully
-effective- vote-is controlling seats. In other words, in
an effort to develop standards for assessing claims of
dilution, the Court has adopted the view that members
of any numerically significant minority are denied a
fully effective use of the franchise unless they are able
to control seats in an elected body. Under this theory,
votes that do not control a representative are essentially
wasted; those who cast them go unrepresented and are
just as surely disenfranchised as if they had been barred
from registering. Cf. id., at 569 (equating denial of the
ability to elect candidates with denial of the vote). Such
conclusions, of course, depend upon a certain theory of
the -effective- vote, a theory that is not inherent in the
concept of representative democracy itself.
In fact, it should be clear that the assumptions that
have guided the Court reflect only one possible under-
standing of effective exercise of the franchise, an
understanding based on the view that voters are
-represented- only when they choose a delegate who will
mirror their views in the legislative halls. See generally
H. Pitkin, The Concept of Representation 60-91 (1967).
But it is certainly possible to construct a theory of
effective political participation that would accord greater
importance to voters' ability to influence, rather than
control, elections. And especially in a two-party system
such as ours, the influence of a potential -swing- group
of voters composing 10%-20% of the electorate in a given
district can be considerable. Even such a focus on
practical influence, however, is not a necessary compo-
nent of the definition of the -effective- vote. Some
conceptions of representative government may primarily
emphasize the formal value of the vote as a mechanism
for participation in the electoral process, whether it
results in control of a seat or not. Cf. id., at 14-59.
Under such a theory, minorities unable to control elected
posts would not be considered essentially without a vote;
rather, a vote duly cast and counted would be deemed
just as -effective- as any other. If a minority group is
unable to control seats, that result may plausibly be
attributed to the inescapable fact that, in a majoritarian
system, numerical minorities lose elections.
In short, there are undoubtedly an infinite number of
theories of effective suffrage, representation, and the
proper apportionment of political power in a representa-
tive democracy that could be drawn upon to answer the
questions posed in Allen. See generally Pitkin, supra.
I do not pretend to have provided the most sophisticated
account of the various possibilities; but such matters of
political theory are beyond the ordinary sphere of federal
judges. And that is precisely the point. The matters
the Court has set out to resolve in vote dilution cases
are questions of political philosophy, not questions of
law. As such, they are not readily subjected to any
judicially manageable standards that can guide courts in
attempting to select between competing theories.
But the political choices the Court has had to make do
not end with the determination that the primary
purpose of the -effective- vote is controlling seats or
with the selection of single-member districting as the
mechanism for providing that control. In one sense,
these were not even the most critical decisions to be
made in devising standards for assessing claims of
dilution, for in itself, the selection of single-member
districting as a benchmark election plan will tell a judge
little about the number of minority districts to create.
Single-member districting tells a court -how- members
of a minority are to control seats, but not -how many-
seats they should be allowed to control.
But -how many- is the critical issue. Once one
accepts the proposition that the effectiveness of votes is
measured in terms of the control of seats, the core of
any vote dilution claim is an assertion that the group in
question is unable to control the -proper- number of
seats-that is, the number of seats that the minority's
percentage of the population would enable it to control
in the benchmark -fair- system. The claim is inherently
based on ratios between the numbers of the minority in
the population and the numbers of seats controlled. As
Justice O'Connor has noted, -any theory of vote
dilution must necessarily rely to some extent on a
measure of minority voting strength that makes some
reference to the proportion between the minority group
and the electorate at large.- Gingles, 478 U. S., at 84
(opinion concurring in judgment). As a result, only a
mathematical calculation can answer the fundamental
question posed by a claim of vote dilution. And once
again, in selecting the proportion that will be used to
define the undiluted strength of a minority-the ratio
that will provide the principle for decision in a vote
dilution case-a court must make a political choice.
The ratio for which this Court has opted, and thus the
mathematical principle driving the results in our cases,
is undoubtedly direct proportionality. Indeed, four
Members of the Court candidly recognized in Gingles
that the Court had adopted a rule of roughly propor-
tional representation, at least to the extent proportional-
ity was possible given the geographic dispersion of mi-
nority populations. See id., at 85, 91, 98-99 (O'Connor,
J., concurring in judgment). While in itself that choice
may strike us intuitively as the fairest or most just rule
to apply, opting for proportionality is still a political
choice, not a result required by any principle of law.
B
The dabbling in political theory that dilution cases
have prompted, however, is hardly the worst aspect of
our vote dilution jurisprudence. Far more pernicious has
been the Court's willingness to accept the one underly-
ing premise that must inform every minority vote
dilution claim: the assumption that the group asserting
dilution is not merely a racial or ethnic group, but a
group having distinct political interests as well. Of
necessity, in resolving vote dilution actions we have
given credence to the view that race defines political
interest. We have acted on the implicit assumption that
members of racial and ethnic groups must all think
alike on important matters of public policy and must
have their own -minority preferred- representatives
holding seats in elected bodies if they are to be consid-
ered represented at all.
It is true that in Gingles we stated that whether a
racial group is -politically cohesive- may not be assumed,
but rather must be proved in each case. See 478 U. S.,
at 51, 56. See also Growe, 507 U. S., at ___ (slip op., at
14-15). But the standards we have employed for
determining political cohesion have proved so insubstan-
tial that this -precondition- does not present much of a
barrier to the assertion of vote dilution claims on behalf
of any racial group. Moreover, it provides no
test-indeed, it is not designed to provide a test-of
whether race itself determines a distinctive political
community of interest. According to the rule adopted in
Gingles, plaintiffs must show simply that members of a
racial group tend to prefer the same candidates. See
478 U. S., at 61-67 (opinion of Brennan, J.). There is
no set standard defining how strong the correlation must
be, and an inquiry into the cause for the correlation (to
determine, for example, whether it might be the product
of similar socioeconomic interests rather than some other
factor related to race) is unnecessary. Ibid. See also
id., at 100 (O'Connor, J., concurring in judgment).
Thus, whenever similarities in political preferences along
racial lines exist, we proclaim that the cause of the
correlation is irrelevant, but we effectively rely on the
fact of the correlation to assume that racial groups have
unique political interests.
As a result, Gingles' requirement of proof of political
cohesiveness, as practically applied, has proved little
different from a working assumption that racial groups
can be conceived of largely as political interest groups.
And operating under that assumption, we have assigned
federal courts the task of ensuring that minorities are
assured their -just- share of seats in elected bodies
throughout the Nation.
To achieve that result through the currently fashion-
able mechanism of drawing majority-minority single-
member districts, we have embarked upon what has
been aptly characterized as a process of -creating
racially `safe boroughs.'- United States v. Dallas County
Comm'n, 850 F. 2d 1433, 1444 (CA11 1988) (Hill, J.,
concurring specially), cert. denied, 490 U. S. 1030 (1989).
We have involved the federal courts, and indeed the
Nation, in the enterprise of systematically dividing the
country into electoral districts along racial lines-an
enterprise of segregating the races into political home-
lands that amounts, in truth, to nothing short of a
system of -political apartheid.- Shaw, 509 U. S., at ___
(slip op., at 16). See also id., at ___ (slip op., at 26)
(noting that racial gerrymandering -may balkanize us
into competing racial factions-). Blacks are drawn into
-black districts- and given -black representatives-;
Hispanics are drawn into Hispanic districts and given
-Hispanic representatives-; and so on. Worse still, it is
not only the courts that have taken up this project. In
response to judicial decisions and the promptings of the
Justice Department, the States themselves, in an
attempt to avoid costly and disruptive Voting Rights Act
litigation, have begun to gerrymander electoral districts
according to race. That practice now promises to
embroil the courts in a lengthy process of attempting to
undo, or at least to minimize, the damage wrought by
the system we created. See, e. g., Shaw, supra; Hays v.
Louisiana, 839 F. Supp. 1188 (WD La. 1993), appeal
pending, No. 93-1539.
The assumptions upon which our vote dilution deci-
sions have been based should be repugnant to any
nation that strives for the ideal of a color-blind Constitu-
tion. -The principle of equality is at war with the
notion that District A must be represented by a Negro,
as it is with the notion that District B must be repre-
sented by a Caucasian, District C by a Jew, District D
by a Catholic, and so on.- Wright v. Rockefeller, 376
U. S. 52, 66 (1964) (Douglas, J., dissenting). Despite
Justice Douglas' warning sounded 30 years ago, our
voting rights decisions are rapidly progressing towards
a system that is indistinguishable in principle from a
scheme under which members of different racial groups
are divided into separate electoral registers and allocated
a proportion of political power on the basis of race. Cf.
id., at 63-66. Under our jurisprudence, rather than
requiring registration on racial rolls and dividing power
purely on a population basis, we have simply resorted to
the somewhat less precise expedient of drawing geo-
graphic district lines to capture minority populations and
to ensure the existence of the -appropriate- number of
-safe minority seats.-
That distinction in the practical implementation of the
concept, of course, is immaterial. The basic premises
underlying our system of safe minority districts and
those behind the racial register are the same: that
members of the racial group must think alike and that
their interests are so distinct that the group must be
provided a separate body of representatives in the
legislature to voice its unique point of view. Such a
-system, by whatever name it is called, is a divisive
force in a community, emphasizing differences between
candidates and voters that are irrelevant.- Id., at 66.
Justice Douglas correctly predicted the results of state
sponsorship of such a theory of representation: -When
racial or religious lines are drawn by the State, . . .
antagonisms that relate to race or to religion rather
than to political issues are generated; communities seek
not the best representative but the best racial or
religious partisan.- Id., at 67. In short, few devices
could be better designed to exacerbate racial tensions
than the consciously segregated districting system
currently being constructed in the name of the Voting
Rights Act.
As a practical political matter, our drive to segregate
political districts by race can only serve to deepen racial
divisions by destroying any need for voters or candidates
to build bridges between racial groups or to form voting
coalitions. -Black-preferred- candidates are assured
election in -safe black districts-; white-preferred candi-
dates are assured election in -safe white districts.-
Neither group needs to draw on support from the other's
constituency to win on election day. As one judge
described the current trend of voting rights cases: -We
are bent upon polarizing political subdivisions by race.
The arrangement we construct makes it unnecessary,
and probably unwise, for an elected official from a white
majority district to be responsive at all to the wishes of
black citizens; similarly, it is politically unwise for a
black official from a black majority district to be respon-
sive at all to white citizens.- Dallas County Comm'n,
850 F. 2d, at 1444 (Hill, J., concurring specially).
As this description suggests, the system we have
instituted affirmatively encourages a racially based
understanding of the representative function. The clear
premise of the system is that geographic districts are
merely a device to be manipulated to establish -black
representatives- whose real constituencies are defined,
not in terms of the voters who populate their districts,
but in terms of race. The -black representative's-
function, in other words, is to represent the -black
interest.- Cf. Shaw, supra, at ___ (slip op., at 18)
(recognizing that systems that -classify and separate
voters by race- threaten -to undermine our system of
representative democracy by signaling to elected officials
that they represent a particular racial group rather than
their constituency as a whole-).
Perhaps not surprisingly, the United States has now
adopted precisely this theory of racial group representa-
tion, as the arguments advanced in another case decided
today, Johnson v. De Grandy, post, should show. The
case involved a claim that an apportionment plan for the
Florida Legislature should have provided another
Hispanic district in Dade County. Florida responded to
the claim of vote dilution by arguing that the plan
already provided Dade County Hispanics with seats in
proportion to their numbers. According to the Solicitor
General, this claim of proportionality should have been
evaluated, not merely on the basis of the population in
the Dade County area where the racial gerrymandering
was alleged to have occurred, but on a statewide basis.
It did not matter, in the Solicitor General's view, that
Hispanic populations elsewhere in the State could not
meet the Gingles geographic compactness test, see 478
U. S., at 50, and thus could not possibly have controlled
districts of their own. After all, the Solicitor General
reasoned, the Hispanic legislators elected from Hispanic
districts in Dade County would represent, not just the
interests of the Dade County Hispanics, but the interests
of all the Hispanics in the State. Brief for United
States in Johnson v. De Grandy, O. T. 1993, No. 92-519,
p. 20. As the argument shows, at least some careful
observers have recognized the racial gerrymandering in
our vote dilution cases for what it is: a slightly less
precise mechanism than the racial register for allocating
representation on the basis of race.
C
While the results we have already achieved under the
Voting Rights Act might seem bad enough, we should
recognize that our approach to splintering the electorate
into racially designated single-member districts does not
by any means mark a limit on the authority federal
judges may wield to rework electoral systems under our
Voting Rights Act jurisprudence. On the contrary, in
relying on single-member districting schemes as a
touchstone, our cases so far have been somewhat
arbitrarily limited to addressing the interests of minority
voters who are sufficiently geographically compact to
form a majority in a single-member district. See
Gingles, supra, at 49-50. There is no reason a priori,
however, that our focus should be so constrained. The
decision to rely on single-member geographic districts as
a mechanism for conducting elections is merely a
political choice-and one that we might reconsider in the
future. Indeed, it is a choice that has undoubtedly been
influenced by the adversary process: in the cases that
have come before us, plaintiffs have focused largely upon
attacking multimember districts and have offered single-
member schemes as the benchmark of an -undiluted-
alternative.
But as the destructive effects of our current penchant
for majority-minority districts become more apparent, cf.
Shaw, supra, courts will undoubtedly be called upon to
reconsider adherence to geographic districting as a
method for ensuring minority voting power. Already,
some advocates have criticized the current strategy of
creating majority-minority districts and have urged the
adoption of other voting mechanisms-for example,
cumulative voting or a system using transferable
votes-that can produce proportional results without
requiring division of the electorate into racially segre-
gated districts. Cf., e. g., Guinier 14-15, 94-101;
Howard & Howard 1660; Karlan, Maps and Misreadings:
The Role of Geographic Compactness in Racial Vote
Dilution Litigation, 24 Harv. Civ. Rights-Civ. Lib. L.
Rev. 173, 174-175, 231-236 (1989) (hereinafter Karlan);
Taebel, Engstrom, & Cole, Alternative Electoral Systems
As Remedies for Minority Vote Dilution, 11 Hamline J.
of Public Law & Policy 19 (1990); Note, Reconciling the
Right to Vote with the Voting Rights Act, 92 Colum. L.
Rev. 1810, 1857-1865 (1992).
Such changes may seem radical departures from the
electoral systems with which we are most familiar.
Indeed, they may be unwanted by the people in the
several States who purposely have adopted districting
systems in their electoral laws. But nothing in our
present understanding of the Voting Rights Act places a
principled limit on the authority of federal courts that
would prevent them from instituting a system of
cumulative voting as a remedy under 2, or even from
establishing a more elaborate mechanism for securing
proportional representation based on transferable votes.
As some Members of the Court have already recognized,
geographic districting is not a requirement inherent in
our political system. See, e. g., Davis v. Bandemer, 478
U. S. 109, 159 (1986) (O'Connor, J., concurring in
judgment) (-Districting itself represents a middle ground
between winner-take-all statewide elections and propor-
tional representation for political parties-); id., at 160
(noting that our current practice of accepting district-
based elections as a given is simply a -political judg-
ment-). Rather, districting is merely another political
choice made by the citizenry in the drafting of their
state constitutions. Like other political choices concern-
ing electoral systems and models of representation, it too
is presumably subject to a judicial override if it comes
into conflict with the theories of representation and
effective voting that we may develop under the Voting
Rights Act.
Indeed, the unvarnished truth is that all that is
required for districting to fall out of favor is for Mem-
bers of this Court to further develop their political
thinking. We should not be surprised if voting rights
advocates encourage us to -revive our political imagina-
tion,- Guinier, 14 Cardozo L. Rev., at 1137, and to
consider -innovative and nontraditional remedies- for
vote dilution, Karlan 221, for under our Voting Rights
Act jurisprudence, it is only the limits on our -political
imagination- that place restraints on the standards we
may select for defining undiluted voting systems. Once
we candidly recognize that geographic districting and
other aspects of electoral systems that we have so far
placed beyond question are merely political choices,
those practices, too, may fall under suspicion of having
a dilutive effect on minority voting strength. And when
the time comes to put the question to the test, it may
be difficult indeed for a Court that, under Gingles, has
been bent on creating roughly proportional representa-
tion for geographically compact minorities to find a
principled reason for holding that a geographically
dispersed minority cannot challenge districting itself as
a dilutive electoral practice. In principle, cumulative
voting and other non-district-based methods of effecting
proportional representation are simply more efficient and
straightforward mechanisms for achieving what has
already become our tacit objective: roughly proportional
allocation of political power according to race.
At least one court, in fact, has already abandoned
districting and has opted instead for cumulative voting
on a county-wide basis as a remedy for a Voting Rights
Act violation. The District Court for the District of
Maryland recently reasoned that, compared to a system
that divides voters into districts according to race,
-[c]umulative voting is less likely to increase polarization
between different interests,- and that it -will allow the
voters, by the way they exercise their votes, to `district'
themselves,- thereby avoiding government involvement
in a process of segregating the electorate. Cane v.
Worcester County, 847 F. Supp. 369, 373 (Md. 1994). Cf.
Guinier, 14 Cardozo L. Rev., at 1135-1136 (proposing a
similar analysis of the benefits of cumulative voting);
Karlan 236 (same). If such a system can be ordered on
a county-wide basis, we should recognize that there is
no limiting principle under the Act that would prevent
federal courts from requiring it for elections to state
legislatures as well.
D
Such is the current state of our understanding of the
Voting Rights Act. That our reading of the Act has
assigned the federal judiciary the task of making the
decisions I have described above should suggest to the
Members of this Court that something in our jurispru-
dence has gone awry. We would be mighty Platonic
guardians indeed if Congress had granted us the
authority to determine the best form of local government
for every county, city, village, and town in America. But
under our constitutional system, this Court is not a
centralized politburo appointed for life to dictate to the
provinces the -correct- theories of democratic representa-
tion, the -best- electoral systems for securing truly
-representative- government, the -fairest- proportions of
minority political influence, or, as respondents would
have us hold today, the -proper- sizes for local govern-
ing bodies. We should be cautious in interpreting
any Act of Congress to grant us power to make such
determinations.
Justice Blackmun suggests that, if we were to inter-
pret the Act to allow challenges to the size of govern-
mental bodies under 2, the Court's power to determine
the structure that local governing bodies must take
would be bounded by the constraints that local customs
provide in the form of benchmarks. Post, at 7. But as
Justice O'Connor rightly points out, such benchmarks
are themselves arbitrarily selected and would provide no
assured limits on judicial power. Ante, at 4-6. In my
view, the local standards to which Justice Blackmun
points today are little different from the various stan-
dards to which the Court has resorted in the past as
touchstones of undiluted voting systems. The appeal to
such standards, which are necessarily arbitrarily chosen,
should not serve to obscure the assumption in the
Court's vote dilution jurisprudence of a sweeping
authority to select the electoral systems to be used by
every governing body in each of the 50 States, and to do
so based upon little more than the passing preference of
five Members of this Court for one political theory over
another.
A full understanding of the authority that our cur-
rent interpretation of the Voting Rights Act assigns to
the federal courts, and of the destructive effects that
our exercise of that authority is presently having upon
our body politic, compels a single conclusion: a syste-
matic reexamination of our interpretation of the Act is
required.
II
Section 2(a) of the Voting Rights Act provides that
-[n]o voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
which results in a denial or abridgement of the right of
any citizen of the United States to vote- on account of
race, color, or membership in one of the language
minority groups defined in the Act. 42 U. S. C. 1973.
Respondents contend that the terms -standard, practice,
or procedure- should extend to cover the size of a
governmental body. An examination of the text of 2
makes it clear, however, that the terms of the Act do
not reach that far; indeed, the terms of the Act do not
allow many of the challenges to electoral mechanisms
that we have permitted in the past. Properly under-
stood, the terms -standard, practice, or procedure- in
2(a) refer only to practices that affect minority citizens'
access to the ballot. Districting systems and electoral
mechanisms that may affect the -weight- given to a
ballot duly cast and counted are simply beyond the
purview of the Act.
A
In determining the scope of 2(a), as when interpret-
ing any statute, we should begin with the statutory
language. See Connecticut Nat. Bank v. Germain, 503
U. S. ___, ___ (1992) (slip op., at 5). Under the plain
terms of the Act, 2(a) covers only a defined category of
state actions. Only -voting qualification[s],- -prerequi-
site[s] to voting,- or -standard[s], practice[s], or proce-
dure[s]- are subject to challenge under the Act. The
first two items in this list clearly refer to conditions or
tests applied to regulate citizens' access to the ballot.
They would cover, for example, any form of test or
requirement imposed as a condition on registration or on
the process of voting on election day.
Taken in isolation, the last grouping of terms-
-standard, practice, or procedure--may seem somewhat
less precise. If we give the words their ordinary
meanings, however-for they have no technical sig-
nificance and are not defined in the Act-they would
not normally be understood to include the size of a local
governing body. Common sense indicates that the size
of a governing body and other aspects of government
structure do not comfortably fit within the terms
-standard, practice, or procedure.- Moreover, we need
not simply treat the terms in isolation; indeed, it would
be a mistake to do so. Cf. United Savings Assn. of
Texas v. Timbers of Inwood Forest Associates, Ltd., 484
U. S. 365, 371 (1988). Reading the words in context
strongly suggests that 2(a) must be understood as
referring to any standard, practice, or procedure with
respect to voting. And thus understood, the terms of the
section would not extend to the size of a governmental
body; we would not usually describe the size or form of
a governing authority as a -practice- or -procedure-
concerning voting.
But under our precedents, we have already stretched
the terms -standard, practice, or procedure- beyond the
limits of ordinary meaning. We have concluded, for
example, that the choice of a certain set of district lines
is a -procedure,- or perhaps a -practice,- concerning
voting subject to challenge under the Act, see Growe,
507 U. S., at ___ (slip op., at 14), even though the
drawing of a given set of district lines has nothing to do
with the basic process of allowing a citizen to vote-that
is, the process of registering, casting a ballot, and
having it counted. Similarly, we have determined that
the use of multimember districts, rather than single-
member districts, can be challenged under the Act. See
Gingles, 478 U. S., at 46-51. Undoubtedly, one of the
critical reasons we have read 2 to reach such districting
decisions is that the choice of one districting system over
another can affect a minority group's power to control
seats in the elected body. See ibid. In that respect,
however, the districting practices we have treated as
subject to challenge under the Act are essentially similar
to choices concerning the size of a governing authority.
Just as drawing district lines one way rather than
another, or using one type of districting system rather
than another, can affect the ability of a minority group
to control seats, so can restricting the number of seats
that are available. And if how districts are drawn is a
-practice- concerning voting, why not conclude that how
many districts are drawn is a -practice- as well?
To be sure, a distinction can be made between the size
of a local governing body and a districting mechanism.
After all, we would ordinarily think that the size of a
government has greater independent significance for the
functioning of the governmental body than the choice of
districting systems apportioning representation. Interfer-
ing with the form of government, therefore, might
appear to involve a greater intrusion on state sover-
eignty. But such distinctions between the size of a
governing body and other potential -voting practices- do
not, at bottom, depend upon how closely each is related
to -voting,- and thus they are not rooted in any way in
the text of 2(a). On the contrary, while it may seem
obvious that the size of a government is not within the
reach of the Act, if we look to the text of the statute for
the limiting principle that confines the terms -standard,
practice or procedure- and excludes government size
from their reach, we must conclude that the only line
drawn in 2 excludes many -practices- that we have
already decided are subject to challenge under the Act.
If we return to the Act to reexamine the terms setting
out the actions regulated by 2, a careful reading of the
statutory text will reveal a good deal more about the
limitations on the scope of the section than suggested
above. The terms -standard, practice, or procedure-
appear to have been included in 2 as a sort of catch-all
provision. They seem phrased with an eye to eliminat-
ing the possibility of evasion. Nevertheless, they are
catch-all terms that round out a list, and a sensible and
long-established maxim of construction limits the way we
should understand such general words appended to an
enumeration of more specific items. The principle of
ejusdem generis suggests that such general terms should
be understood to refer to items belonging to the same
class that is defined by the more specific terms in the
list. See, e. g., Cleveland v. United States, 329 U. S. 14,
18 (1946).
Here, the specific items described in 2(a) (-voting
qualification[s]- and -prerequisite[s] to voting-) indicate
that Congress was concerned in this section with any
procedure, however it might be denominated, that
regulates citizens' access to the ballot-that is, any
procedure that might erect a barrier to prevent the
potential voter from casting his vote. In describing the
laws that would be subject to 2, Congress focused
attention upon provisions regulating the interaction
between the individual voter and the voting process-on
hurdles the citizen might have to cross in the form of
-prerequisites- or -qualifications.- The general terms in
the section are most naturally understood, therefore, to
refer to any methods for conducting a part of the voting
process that might similarly be used to interfere with a
citizen's ability to cast his vote, and they are undoubt-
edly intended to ensure that the entire voting process-a
process that begins with registration and includes the
casting of a ballot and having the ballot counted-is
covered by the Act. Cf. infra, at 30. Simply by includ-
ing general terms in 2(a) to ensure the efficacy of the
restriction imposed, Congress should not be understood
to have expanded the scope of the restriction beyond the
logical limits implied in the specific terms of the statute.
Cf. Cleveland, supra, at 18 (-Under the ejusdem generis
rule of construction the general words are confined to
the class and may not be used to enlarge it-).
Moreover, it is not only in the terms describing the
practices regulated under the Act that 2(a) focuses on
the individual voter. The section also speaks only in the
singular of the right of -any citizen- to vote. Giving the
terms -standard, practice, or procedure- an expansive
interpretation to reach potentially dilutive practices,
however, would distort that focus on the individual, for
a vote dilution claim necessarily depends on the asser-
tion of a group right. Cf. Bandemer, 478 U. S., at
150-151 (O'Connor, J., concurring in judgment). At the
heart of the claim is the contention that the members of
a group collectively have been unable to exert the
influence that their numbers suggest they might under
an alternative system. Such a group right, however,
finds no grounding in the terms of 2(a).
Of course, the scope of the right that is protected
under the Act can provide further guidance concerning
the meaning of the terms -standard, practice, or proce-
dure.- Under the terms of the Act, only a -standard,
practice, or procedure- that may result in the -denial or
abridgement of the right . . . to vote- is within the reach
of 2(a). But nothing in the language used in 2(a) to
describe the protection provided by the Act suggests that
in protecting the -right to vote,- the section was meant
to incorporate a concept of voting that encompasses a
concern for the -weight- or -influence- of votes. On the
contrary, the definition of the terms -vote- and -voting-
in 14(c)(1) of Act focuses precisely on access to the
ballot. Thus, 14(c)(1) provides that the terms -vote-
and -voting- shall encompass any measures necessary to
ensure -registration- and any -other action required by
law prerequisite to voting, casting a ballot, and having
such ballot counted properly and included in the appro-
priate totals of votes cast.- 42 U. S. C. 1973l(c)(1).
It is true that 14(c)(1) also states that the term
-voting- -include[s] all action necessary to make a vote
effective,- ibid. (emphasis added), and the Court has
seized on this language as an indication that Congress
intended the Act to reach claims of vote dilution. See
Allen, 393 U. S., at 566. But if the word -effective- is
not plucked out of context, the rest of 14(c)(1) makes
clear that the actions Congress deemed necessary to
make a vote -effective- were precisely the actions listed
above: registering, satisfying other voting prerequisites,
casting a ballot, and having it included in the final tally
of votes cast. These actions are described in the section
only as examples of the steps necessary to make a vote
effective. See 42 U. S. C. 1973l(c)(1). And while the
list of such actions is not exclusive, the nature of all the
examples that are provided demonstrates that as far as
the Act is concerned, an -effective- vote is merely one
that has been cast and fairly counted. See id., at 590,
n. 7 (Harlan, J., concurring in part and dissenting in
part).
Reading the Act's prohibition of practices that may
result in a -denial or abridgement of the right . . . to
vote- as protecting only access to the ballot also yields
an interpretation that is consistent with the Court's
construction of virtually identical language in the
Fifteenth Amendment. The use of language taken from
the Amendment suggests that the section was intended
to protect a -right to vote- with the same scope as the
right secured by the Amendment itself; certainly, no
reason appears from the text of the Act for giving the
language a broader construction in the statute than we
have given it in the Constitution. The Court has never
decided, however, whether the Fifteenth Amendment
should be understood to protect against vote -dilution.-
See Voinovich v. Quilter, 507 U. S. ___, ___ (1993) (slip
op., at 11). See also Beer v. United States, 425 U. S.
130, 142, n. 14 (1976) (noting that there is no decision
of this Court holding a legislative apportionment plan
violative of the Fifteenth Amendment).
While the terms of 2(a) thus indicate that the section
focuses only on securing access to the ballot, it might be
argued that reenactment of 2 in 1982 should be
understood as an endorsement of the interpretation
contained in cases such as Allen that the terms -stan-
dard, practice, or procedure- were meant to reach
potentially dilutive practices. See Lorillard v. Pons, 434
U. S. 575, 580-581 (1978). It is true that we generally
will assume that reenactment of specific statutory
language is intended to include a -settled judicial
interpretation- of that language. Pierce v. Underwood,
487 U. S. 552, 567 (1988). And while 2 was amended
in 1982, the amended section did retain the same lan-
guage that had appeared in the original Act regulating
-standard[s], practice[s], or procedure[s].- But it was
hardly well settled in 1982 that Allen's broad reading of
the terms -standard, practice, or procedure- in 5 would
set the scope of 2 as a provision reaching claims of vote
dilution.
On the contrary, in 1980 in Mobile v. Bolden, 446
U. S. 55, a plurality of the Court construed 2 in a
manner flatly inconsistent with the understanding that
those terms were meant to reach dilutive practices.
Emphasizing that the section tracked the language of
the Fifteenth Amendment by prohibiting the use of
practices that might -deny or abridge the right . . . to
vote,- the Bolden plurality determined that 2 was
-intended to have an effect no different from that of the
Fifteenth Amendment itself.- Id., at 61. In the
plurality's view, however, the Fifteenth Amendment did
not extend to reach dilution claims; its protections were
satisfied as long as members of racial minorities could
-`register and vote without hindrance.'- Id., at 65.
Bolden remained the last word from this Court inter-
preting 2 at the time the section was amended in 1982.
Cf. Rogers v. Lodge, 458 U. S. 613, 619, n. 6 (1982).
Thus, the reenactment in the amended section of the
same language covering any -standard, practice, or
procedure- and the retention of virtually identical
language protecting against the -denial or abridgement
of the right . . . to vote- can hardly be understood as an
endorsement of a broad reading of the section as a
provision reaching claims of vote dilution.
Finally, as our cases have shown, reading 2(a) to
reach beyond laws that regulate in some way citizens'
access to the ballot turns the section into a command for
courts to evaluate abstract principles of political theory
in order to develop rules for deciding which votes are
-diluted- and which are not. See generally supra, at
5-13. Common sense would suggest that we should not
lightly interpret the Act to require courts to address
such matters so far outside the normal bounds of
judicial competence, and the mere use of three more
general terms at the end of the list of regulated
practices in 2(a) cannot properly be understood to
incorporate such an expansive command into the Act.
Properly understood, therefore, 2(a) is a provision
designed to protect access to the ballot, and in regulat-
ing -standard[s], practice[s], and procedure[s],- it reaches
only -those state laws that [relate to] either voter
qualifications or the manner in which elections are
conducted.- Allen, 393 U. S., at 591 (Harlan, J.,
concurring in part and dissenting in part). The section
thus covers all manner of registration requirements, the
practices surrounding registration (including the selec-
tion of times and places where registration takes place
and the selection of registrars), the locations of polling
places, the times polls are open, the use of paper ballots
as opposed to voting machines, and other similar aspects
of the voting process that might be manipulated to deny
any citizen the right to cast a ballot and have it
properly counted. The section does not cover, however,
the choice of a multimember over a single-member
districting system or the selection of one set of
districting lines over another, or any other such electoral
mechanism or method of election that might reduce the
weight or influence a ballot may have in controlling the
outcome of an election.
Of course, this interpretation of the terms -standard,
practice, or procedure- effectively means that 2(a) does
not provide for any claims of what we have called vote
-dilution.- But that is precisely the result suggested by
the text of the statute. Section 2(a) nowhere uses the
term -vote dilution- or suggests that its goal is to ensure
that votes are given their proper -weight.- And an
examination of 2(b) does not suggest any different
result. It is true that in construing 2 to reach vote
dilution claims in Thornburg v. Gingles, 478 U. S. 30
(1986), the Court relied largely on the gloss on 2(b)
supplied in the legislative history of the 1982 amend-
ments to the Act. See id., at 43-46. But the text of
2(b) supplies a weak foundation indeed for reading the
Act to reach such claims.
As the Court concluded in Gingles, the 1982 amend-
ments incorporated into the Act, and specifically into
2(b), a -results- test for measuring violations of 2(a).
That test was intended to replace, for 2 purposes, the
-intent- test the Court had announced in Bolden for
voting rights claims under 2 of the Voting Rights Act
and under the Fourteenth and Fifteenth Amendments.
Section 2(a) thus prohibits certain state actions that may
-resul[t] in a denial or abridgement- of the right to vote,
and 2(b) incorporates virtually the exact language of
the -results test- employed by the Court in White v.
Regester, 412 U. S. 755 (1973), and applied in constitu-
tional voting rights cases before our decision in Bolden.
The section directs courts to consider whether -based on
the totality of circumstances,- a state practice results in
members of a minority group -hav[ing] less opportunity
than other members of the electorate to participate in
the political process and to elect representatives of their
choice.- 42 U. S. C. 1973(b). Cf. White, supra, at 766;
Whitcomb v. Chavis, 403 U. S. 124, 149 (1971).
But the mere adoption of a -results- test, rather than
an -intent- test, says nothing about the type of state
laws that may be challenged using that test. On the
contrary, the type of state law that may be challenged
under 2 is addressed explicitly in 2(a). As we noted
in Chisom v. Roemer, 501 U. S. 380 (1991), 2(a) and
2(b) address distinct issues. While 2(a) defines and
explicitly limits the type of voting practice that may be
challenged under the Act, 2(b) provides only -the test
for determining the legality of such a practice.- Id., at
391. Thus, as an initial matter, there is no reason to
think that 2(b) could serve to expand the scope of the
prohibition in 2(a), which as I described above, does not
extend by its terms to electoral mechanisms that might
have a dilutive effect on group voting power.
Even putting that concern aside for the moment, it
should be apparent that the incorporation of a results
test into the amended section does not necessarily
suggest that Congress intended to allow claims of vote
dilution under 2. A results test is useful to plaintiffs
whether they are challenging laws that restrict access to
the ballot or laws that accomplish some diminution in
the -proper weight- of a group's vote. Nothing about the
test itself suggests that it is inherently tied to vote
dilution claims. A law, for example, limiting the times
and places at which registration can occur might be
adopted with the purpose of limiting black voter regis-
tration, but it could be extremely difficult to prove the
discriminatory intent behind such a facially neutral law.
The results test would allow plaintiffs to mount a
successful challenge to the law under 2 without such
proof.
Moreover, nothing in the language 2(b) uses to
describe the results test particularly indicates that the
test was intended to be used under the Act for assessing
claims of dilution. Section 2(b) directs courts to consider
whether, under the -totality of circumstances,- members
of a minority group -have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice.- 42
U. S. C. 1973(b). The most natural reading of that
language would suggest that citizens have an equal
-opportunity- to participate in the electoral process and
an equal -opportunity- to elect representatives when they
have been given the same free and open access to the
ballot as other citizens and their votes have been
properly counted. The section speaks in terms of an
opportunity-a chance-to participate and to elect, not
an assured ability to attain any particular result. And
since the ballot provides the formal mechanism for
obtaining access to the political process and for electing
representatives, it would seem that one who has had the
same chance as others to register and to cast his ballot
has had an equal opportunity to participate and to elect,
whether or not any of the candidates he chooses is
ultimately successful.
To be sure, the test in 2(b) could be read to apply to
claims of vote dilution as well. But to conclude, for
example, that a multimember districting system had
denied a group of voters an equal opportunity to partici-
pate in the political process and to elect representatives,
a court would have to embark on the extended project
in political theory that I described above in Part I of
this opinion. In other words, a court would have to
develop some theory of the benchmark undiluted voting
system that provides minorities with the -fairest- or
most -equitable- share of political influence. Undoubt-
edly, a dizzying array of concepts of political equality
might be described to aid in that task, and each could
be used to attribute different values to different systems
of election. See, e. g., Still, Political Equality and
Election Systems, 91 Ethics 375 (1981). But the
statutory command to determine whether members of a
minority have had an equal -opportunity . . . to partici-
pate in the political process and to elect representatives-
provides no guidance concerning which one of the
possible standards setting undiluted voting strength
should be chosen over the others. And it would be
contrary to common sense to read 2(b)'s reference to
equal opportunity as a charter for federal courts to
embark on the ambitious project of developing a theory
of political equality to be imposed on the Nation.
It is true that one factor courts may consider under
the results test might fit more comfortably with an
interpretation of the Act that reaches vote dilution
claims. Section 2(b) provides that -one circumstance-
that may be considered in assessing the results test is
the -extent to which members of a protected class have
been elected to office.- 42 U. S. C. 1973(b). Obviously,
electoral outcomes would be relevant to claims of vote
dilution (assuming, of course, that control of seats has
been selected as the measure of effective voting). But in
some circumstances, results in recent elections might
also be relevant for demonstrating that a particular
practice concerning registration or polling has served to
suppress minority voting. Better factors to consider
would be figures for voter registration or turnout at the
last election, broken down according to race. But where
such data is not readily available, election results may
certainly be -one circumstance- to consider in determin-
ing whether a challenged practice has resulted in
denying a minority group access to the political process.
The Act merely directs courts not to ignore such evi-
dence of electoral outcomes altogether.
Moreover, the language providing that electoral
outcomes may be considered as -one circumstance- in the
results test is explicitly qualified by the provision in
2(b) that most directly speaks to the question whether
2 was meant to reach claims of vote dilution-and
which suggests that dilution claims are not covered by
the section. The last clause in the subsection states in
unmistakable terms that -nothing in this section
establishes a right to have members of a protected class
elected in numbers equal to their proportion in the
population.- 42 U. S. C. 1973(b). As four Members of
the Court observed in Gingles, there is -an inherent
tension- between this disclaimer of proportional repre-
sentation and an interpretation of 2 that encompasses
vote dilution claims. 478 U. S., at 84 (O'Connor, J.,
concurring in judgment). As I explained above, dilution
claims, by their very nature, depend upon a mathemati-
cal principle. The heart of the claim is an assertion
that the plaintiff group does not hold the -proper-
number of seats. As a result, the principle for deciding
the case must be supplied by an arithmetic ratio.
Either the group has attained the -proper- number of
seats under the current election system, or it has not.
By declaring that the section provides no right to
proportional representation, 2(b) necessarily commands
that the existence or absence of proportional electoral
results should not become the deciding factor in assess-
ing 2 claims. But in doing so, 2(b) removes from
consideration the most logical ratio for assessing a claim
of vote dilution. To resolve a dilution claim under 2,
therefore, a court either must arbitrarily select a
different ratio to represent the -undiluted- norm, a ratio
that would have less intuitive appeal than direct
proportionality, or it must effectively apply a proportion-
ality test in direct contravention of the text of the
Act-hence the -inherent tension- between the text of
the Act and vote dilution claims. Given that 2 nowhere
speaks in terms of -dilution,- an explicit disclaimer
removing from the field of play the most natural
deciding principle in dilution cases is surely a strong
signal that such claims do not fall within the ambit of
the Act.
It is true that the terms -standard, practice, or
procedure- in 5 of the Act have been construed to reach
districting systems and other potentially dilutive elec-
toral mechanisms, see, e. g., Allen, 393 U. S., at 569,
and Congress has reenacted 5 subsequent to our deci-
sions adopting that expansive interpretation. See, e. g.,
United States v. Board of Comm'rs of Sheffield, 435
U. S. 110, 134-135 (1978); Georgia v. United States, 411
U. S. 526, 533 (1973). Nevertheless, the text of the
section suggests precisely the same focus on measures
that relate to access to the ballot that appears in 2.
Section 5 requires covered jurisdictions to obtain
preclearance for a change in -any voting qualification or
prerequisite to voting, or standard, practice, or procedure
with respect to voting.- 42 U. S. C. 1973c. As in 2,
the specific terms in the list of regulated state actions
describe only laws that would limit access to the ballot.
Moreover, 5 makes the focus on the individual voter
and access to the voting booth even more apparent as
the section goes on to state that -no person shall be
denied the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or proce-
dure.- 42 U. S. C. 1973c (emphasis added). This
command makes it explicit that in regulating standards,
practices, or procedures with respect to voting, -Congress
was clearly concerned with changes in procedure with
which voters could comply.- Allen, 393 U. S., at 587
(Harlan, J., concurring in part and dissenting in part).
But it should be obvious that a districting system, or
any other potentially dilutive mechanism for that
matter, is not something with which a voter can comply.
As is the case with 2, 5's description of the terms
-standard, practice, or procedure- thus suggests a focus
on rules that regulate the individual voter's ability to
register and cast a ballot, not a more abstract concern
with the effect that various electoral systems might have
on the -weight- of the votes cast by a group that
constitutes a numerical minority in the electorate.
In my view, the tension between the terms of the Act
and the construction we have placed on 5 at the very
least suggests that our interpretation of 5 should not
be adopted wholesale to supply the meaning of the
terms -standard, practice, or procedure- under 2. An
expansive construction of 5 was well established in
1980, yet a plurality of the Court in Bolden, after
focusing on the terms of the Act, did not adopt a
similarly expansive construction of 2. Rather, the
Bolden plurality concluded that 2 should be strictly
limited to have the same reach as the Fifteenth Amend-
ment, which the plurality interpreted as addressing only
matters relating to access to the ballot. See Bolden, 446
U. S., at 61, 65. I would reach a similar result here.
Where a careful reading of the language of 2 dictates
a narrow interpretation of the section, there is no reason
for transplanting our interpretation of the terms of
5-an interpretation that I believe is in tension with
the text of 5 itself-to another section of the Act.
B
From the foregoing, it should clear that, as far as the
text of the Voting Rights Act is concerned, -2 does not
speak in terms of `vote dilution.'- Gingles, 478 U. S., at
87 (O'Connor, J., concurring in judgment). One might
wonder, then, why we have consistently concluded that
-[w]e know that Congress intended to allow vote dilution
claims to be brought under 2.- Id., at 84. The juxtapo-
sition of the two statements surely makes the result in
our cases appear extraordinary, since it suggests a sort
of statutory construction through divination that has
allowed us to determine that Congress -really meant- to
enact a statute about vote dilution even though Congress
did not do so explicitly. In truth, our method of
construing 2 has been only little better than that, for
the only source we have relied upon for the expansive
meaning we have given 2 has been the legislative
history of the Act.
We first considered the amended 2 in Thornburg v.
Gingles. Although the precise scope of the terms
-standard, practice, or procedure- was not specifically
addressed in that case, Gingles nevertheless established
our current interpretation of the amended section as a
provision that addresses vote dilution, and in particular
it fixed our understanding that the results test in 2(b)
is intended to measure vote dilution in terms of electoral
outcomes. See id., at 93 (O'Connor, J., concurring in
judgment) (stating that Gingles made electoral results
the -linchpin- of vote dilution claims). In reaching its
interpretation of 2, the Gingles Court rejected the
argument advanced by the United States as amicus
curiae that 2(b)'s test based on an equal -opportunity
. . . to participate in the political process and to elect
representatives- suggested a focus on nothing more than
securing equal access to the political process, not a focus
on measuring the influence of a minority group's votes
in terms of electoral outcomes. See Brief for United
States as amicus curiae in Thornburg v. Gingles, O. T.
1985, No. 83-1968, pp. 7-19. That understanding of 2
is, of course, compatible with the interpretation I have
set out above.
In approaching 2, the Gingles Court, based on little
more than a bald assertion that -the authoritative
source for legislative intent lies in the Committee
Reports on the bill,- 478 U. S., at 43, n. 7, bypassed a
consideration of the text of the Act and proceeded to
interpret the section based almost exclusively on its
legislative history. It was from the legislative history
that the Court culled its understanding that 2 is a
provision encompassing claims that an electoral system
has diluted a minority group's vote and its understand-
ing that claims of dilution are to be evaluated based
upon how closely electoral outcomes under a given
system approximate the outcomes that would obtain
under an alternative, undiluted norm. See, e. g., id., at
43-51.
Contrary to the remarkable -legislative history first-
method of statutory construction pursued in Gingles,
however, I had thought it firmly established that the
-authoritative source- for legislative intent was the text
of the statute passed by both houses of Congress and
presented to the President, not a series of partisan
statements about purposes and objectives collected by
congressional staffers and packaged into a Committee
Report. -We have stated time and again that courts
must presume that a legislature says in a statute what
it means and means in a statute what it says there.-
Germain, 503 U. S., at ___ (slip op., at 5). See also
United States v. Ron Pair Enterprises, Inc., 489 U. S.
235, 241-242 (1989); Oneale v. Thornton, 6 Cranch 53,
68 (1810). Nevertheless, our analysis in Gingles was
marked conspicuously by the absence of any attempt to
pursue a close reading of the text of the Act. As
outlined above, had the Court addressed the text, it
would have concluded that the terms of the Act do not
address matters of vote -dilution.-
Moreover, the legislative history of 2 itself, and the
Court's use of it in Gingles, aptly illustrate that legisla-
tive history is often used by this Court as -a forensic
rather than an interpretive device,- Wisconsin Public
Intervenor v. Mortier, 501 U. S. 597, 621 (1991) (Scalia,
J., concurring in judgment), and is read selectively to
support the result the Court intends to achieve. It is
well documented in the history of the 1982 amendments
to the Act that 2 was passed only after a compromise
was reached through the addition of the provision in
2(b) disclaiming any right to proportional representa-
tion. See S. Rep. No. 97-417, pp. 2-4 (1982); id., at
94-97 (additional views of Sen. Hatch). But the views
of the author of that compromise, Senator Dole, hardly
coincide with the gloss the Court has placed on 2.
According to Senator Dole, amended 2 would
-[a]bsolutely not- provide any redress to a group of
voters challenging electoral mechanisms in a jurisdiction
-if the process is open, if there is equal access, if there
are no barriers, direct or indirect, thrown up to keep
someone from voting or having their vote counted, or
registering, whatever the process may include.- 128
Cong. Rec. 14133 (1982). Contrary to the Court's
interpretation of the section in Gingles, Senator Dole
viewed 2 as a provision more narrowly focused on
access to the processes surrounding the casting of a
ballot, not a provision concerned with ensuring electoral
outcomes in accordance with some -undiluted- norm.
See S. Rep. No. 97-417, supra, at 193-194 (additional
views of Sen. Dole). The legislative history thus hardly
provided unambiguous support for the Court's interpreta-
tion; indeed, it seems that the Court used what was
helpful to its interpretation in the legislative history and
ignored what was not. Cf. Mortier, supra, at 617
(Scalia, J., concurring in judgment).
Of course, as mentioned above, Gingles did not directly
address the meaning of the terms -standard, practice, or
procedure- in 2(a). The understanding that those terms
extend to a State's laws establishing various electoral
mechanisms dates to our decision in Allen, in which we
construed the identical terms in 5 of the Act. But the
Court's method of statutory construction in Allen was
little different from that pursued in Gingles, and as the
analysis of the text of 5 above demonstrates, it simi-
larly yielded an interpretation in tension with the terms
of the Act.
In Allen, after noting that 14(c)(1) defined -voting- to
include -all action necessary to make a vote effective,-
42 U. S. C. 1973l(c)(1), the Court abandoned any
further attempt to construe the text of the Act and went
on, instead, to conclude that the -legislative history on
the whole supports the view that Congress intended to
reach any state enactment which altered the election
law of a covered State in even a minor way.- Allen, 393
U. S., at 566. Not surprisingly, the legislative history
relied upon in Allen also displayed the typical flaws that
one might expect-it was hardly unequivocal. See id.,
at 590-591, and n. 9 (Harlan, J., concurring in part and
dissenting in part) (noting inconsistencies in the legisla-
tive history). Thus, to the extent that Allen implicitly
has served as the basis for our subsequent interpretation
of the terms of 2, it hardly can be thought to provide
any surer rooting in the language of the Act than the
method of statutory construction pursued in Gingles.
Remarkably, thanks to our reliance on legislative
history, we have interpreted 2 in such a way that four
Members of this Court at one time candidly admitted
that -[t]here is an inherent tension [in 2] between what
Congress wished to do and what it wished to avoid.-
Gingles, 478 U. S., at 84 (O'Connor, J., concurring in
judgment). But our understanding of what Congress
purportedly -wished to do--that is, to allow claims of
vote -dilution--depends solely on a selective reading of
legislative history, whereas Congress' statement of what
it -wished to avoid- appears explicitly in 2(b)'s dis-
claimer of a right to proportional representation. I can
see no logical reason to import the -inherent tension-
between these two imperatives into the Act, when on its
face the statute incorporates only one of two potentially
contradictory commands. I would have thought the key
to resolving any such conflict between the text and the
legislative history obvious: the text of the statute must
control, and the text of 2 does not extend the Act to
claims of dilution.
Were it our function to interpret and apply Committee
Reports or other pieces of legislative history, rather than
Acts of Congress, I might conclude that we had made
the best of a bad situation in interpreting 2 of the
Voting Rights Act, and that the quagmire that is 2 was
Congress' creation, not our own. It is apparent, how-
ever, that we have arrived at our current understanding
of the Act, with all of its attendant pitfalls, only by
abandoning proper methods of statutory construction.
Our errors in method in past cases ordinarily might not
indicate a need to forsake an established line of prece-
dent. But here they have produced an -inherent
tension- between our interpretation of 2 and the text of
the Act and have yielded a construction of the statute
that, as I discuss below, is so unworkable in practice
and destructive in its effects that it must be repudiated.
C
-Stare decisis is not an inexorable command,- Payne v.
Tennessee, 501 U. S. 808, 828 (1991). Indeed, -when
governing decisions are unworkable or are badly rea-
soned, this Court has never felt constrained to follow
precedent.- Id., at 827 (internal quotation marks
omitted). The discussion above should make clear that
our decision in Gingles interpreting the scope of 2 was
badly reasoned; it wholly substituted reliance on legisla-
tive history for analysis of statutory text. In doing so,
it produced a far more expansive interpretation of 2
than a careful reading of the language of the statute
would allow.
Our interpretation of 2 has also proved unworkable.
As I outlined above, it has mired the federal courts in
an inherently political task-one that requires answers
to questions that are ill-suited to principled judicial
resolution. Under 2, we have assigned the federal
judiciary a project that involves, not the application of
legal standards to the facts of various cases or even the
elaboration of legal principles on a case-by-case basis,
but rather the creation of standards from an abstract
evaluation of political philosophy.
Worse, our interpretation of 2 has required us to
distort our decisions to obscure the fact that the political
choice at the heart of our cases rests on precisely the
principle the Act condemns: proportional allocation of
political power according to race. Continued adherence
to a line of decisions that necessitates such dissembling
cannot possibly promote what we have perceived to be
one of the central values of the policy of stare decisis:
the preservation of -the actual and perceived integrity of
the judicial process.- Payne, supra, at 827.
I have endeavored to explain above that the core of
any vote dilution claim is an assertion that the plaintiff
group does not hold seats in the proportion that it
should. There is no logical way to avoid reliance on a
simple ratio in evaluating such a claim. And allocation
of seats in direct proportion to the minority group's
percentage in the population provides the most logical
ratio to apply as an -undiluted- norm. But 2 makes it
clear that the Act does not create a right to proportional
representation, and thus dictates that proportionality
should not provide the rule of decision for 2 claims.
See supra, at 40, and n. 26. Nevertheless, despite the
statutory command, in deciding claims of vote dilution
we have turned to proportionality as a guide, simply for
lack of any better alternative.
No formulation of the test for evaluating vote dilution
claims has ever dispensed with the inevitable need to
consult a mathematical formula to decide a case. The
factors listed in White v. Regester, 412 U. S., at 766-767,
resurrected in the Senate Report on the 1982 amend-
ments to 2, see S. Rep. No. 97-417, pp. 28-29 (1982),
and finally reincorporated into our decision in Gingles,
see 478 U. S., at 44-45, although praised in our cases
as a multi-faceted test ensuring that vote dilution is
determined based on the -totality of circumstances,- in
reality provide no rule for deciding a vote dilution claim
based on anything other than a numerical principle.
In Gingles, we condensed the import of these -factors-
into a formula stating that the -essence- of a vote
dilution claim under 2 is that -a certain electoral law,
practice, or structure interacts with social and historical
conditions to cause an inequality in the opportunities
enjoyed by black and white voters to elect their pre-
ferred representatives.- Id., at 47. But it should be
apparent that whether an electoral practice does or does
not reduce the ability of a numerical minority to control
the election of representatives can be determined wholly
without reference to -social and historical conditions.-
The dilutive effects of various electoral procedures are
matters of mathematics. The -social and historical
conditions- -interact- with the election mechanism, and
thus are relevant in a vote dilution case, only to the
extent that they are important for establishing that the
minority group does in fact define a distinct political
interest group that might assert that its vote has been
diluted by the mechanism at issue. Such social and
historical considerations, however, cannot supply the
answer to the ultimate question whether the group's
vote has been diluted.
In reality, the list of White factors provides nothing
more than just that: a list of possible considerations that
might be consulted by a court attempting to develop a
gestalt view of the political and racial climate in a
jurisdiction, but a list that cannot provide a rule for
deciding a vote dilution claim. Take, for example, a
case in which a district court determines that a minority
group constituting 34% of the population in a certain
jurisdiction has suffered discrimination in the past, that
the group currently bears the effects of that discrimina-
tion, and that there has been a history of racial cam-
paigning in the jurisdiction. Cf. White, supra, at
766-767. How can these facts possibly answer the
question whether the group's votes have been diluted if
the group controls two rather than three seats in a
10-member governing body? Will the answer to the
ultimate question change if the first two factors are
found, but the third is not? Obviously, the various
-factors,- singly or in any combination, cannot provide a
principle for determining the result. What one must
know to decide the case is whether 20% of the seats in
the government is sufficient to reflect -undiluted- voting
strength, or if 30% should be required.
Of course, as suggested above, the White factors may
be relevant to determining as a threshold matter
whether the minority group is a distinct political group
that should be able to assert a claim of dilution. But
after Gingles, the inquiry into whether race defines
political interest effectively has been boiled down to the
weakened test for minority -political cohesiveness- and
majority bloc voting embodied in the second and third
Gingles preconditions. See 478 U. S., at 51. Once a
plaintiff group establishes that it is mathematically
possible for it to control another seat (that is, that it
satisfies the first Gingles precondition of size and
geographic compactness), see id., at 50, and that it is a
distinct political group (that is, that it can show political
cohesion and majority bloc voting), the only question
remaining in the vote dilution claim is whether the
current number of seats is the proper number or not.
The other White factors have become essentially super-
fluous. They may be dutifully intoned by courts per-
forming the empty ritual of applying the -totality of
circumstances- test, but they can provide no guidance
concerning whether the current allocation of seats
constitutes -dilution.- Cf. Gingles, supra, at 92-93
(O'Connor, J., concurring in judgment) (suggesting that
the basic contours of a dilution claim require no refer-
ence to most of the White factors).
In short, it should be clear that the factors listed in
Gingles-in their various incarnations and by whatever
names they are known-are nothing but puffery used to
fill out an impressive verbal formulation and to create
the impression that the outcome in a vote dilution case
rests upon a reasoned evaluation of a variety of relevant
circumstances. The -totality of circumstances- test
outlined in Gingles thus serves to obscure the inherent
conflict between the text of the Act and an underlying
reliance on proportionality.
The resort to proportionality in our cases should
hardly come as a surprise. Before 2 was amended in
1982, and thus before the Act explicitly disavowed a
right to proportional representation, some members of
the Court recognized the inevitable drift toward propor-
tional representation that would occur if the test
outlined in White were used to evaluate vote dilution
claims. As Justice Stewart, writing for four Members
of the Court, observed, the factors listed in White
amounted to little more than -gauzy sociological consid-
erations,- and it did not appear that -they could, in any
principled manner, exclude the claims of any discrete
political group that happens, for whatever reason, to
elect fewer of its candidates than arithmetic indicates it
might.- Bolden, 446 U. S., at 75, n. 22 (emphasis
added). Indeed, Justice Stewart was correct in conclud-
ing that -the putative limits [imposed by the White
factors] are bound to prove illusory if the express
purpose informing their application would be,- as our
vote dilution cases have assumed, -to redress the
inequitable distribution of political influence.- Ibid.
(internal quotation marks omitted).
In fact, the framework established by this Court for
evaluating vote dilution claims in Gingles was at its
inception frankly, and in my view correctly, labeled as
setting a rule of roughly proportional representation.
See Gingles, supra, at 91, 93, 97-99 (O'Connor, J.,
concurring in judgment). Nothing has happened in the
intervening years to change the basic import of the
Gingles test. Yet we have continued to apply the same
Gingles framework, see, e. g., Growe v. Emison, 507
U. S. ___ (1993), all the while suggesting that we are
pursuing merely a totality of the circumstances test.
In another case decided today, the Court reconfirms
the unstated centrality of proportional results in an
opinion that demonstrates the obfuscation that must
come to characterize our Voting Rights Act rulings if we
continue to entertain dilution claims while pretending to
renounce reliance on proportionality as a rule of deci-
sion. In Johnson v. De Grandy, post p.___, the Court
assures us that proportionality does not provide the
principle for deciding vote dilution claims. Post, at 2,
20-24. Rather, the result in each case must depend on
a searching inquiry into the ever-nebulously-defined
-totality of circumstances.- Post, at 2.
But after the Gingles preconditions have been estab-
lished, post, at 11, and after White factors such as a
history of discrimination have been found, see post, at
16, where does the Court turn for a deciding principle
to give some meaning to these multifarious facts, which
taken individually would each appear to count in favor
of a finding of vote dilution? Quite simply, the Court
turns to proportionality: -Treating equal political
opportunity as the focus of the enquiry, we do not see
how these district lines, apparently providing political
effectiveness [that is, majority-minority districts] in
proportion to voting-age numbers, deny equal political
opportunity.- Post, at 17. See also post, at 16 (noting
that in assessing -dilutive effect,- the -pertinent fea-
tures- of the districting system at issue -were majority-
minority districts in substantial proportion to the
minority's share of voting-age population-); post, at 2
(O'Connor, J., concurring) (the Court's central teaching
in De Grandy -is that proportionality-defined as the
relationship between the number of majority-minority
voting districts and the minority group's share of the
relevant population-is always relevant evidence in
determining vote dilution-). Justice O'Connor's
comment about the Court's holding in Davis v.
Bandemer, 478 U. S. 109 (1986), is equally applicable to
the course pursued in De Grandy today: -[The Court's
decision] ultimately rests on a political preference for
proportionality-. . . a conviction that the greater the
departure from proportionality, the more suspect an
apportionment plan becomes.- 478 U. S., at 159
(O'Connor, J., concurring in judgment).
To be sure, the De Grandy Court repeatedly declares
that proportionality is not a defense to a vote dilution
claim. See post, at 20-24. That, of course, must be the
stated rule if we are not to abandon openly the explicit
disclaimer enacted by Congress in 2(b). But given the
Court's equivocation-proportionality is still always
relevant-and the Court's ultimate analysis, such
assurances ring hollow. The Court decides the question
of dilution based upon proportionality. And it is
apparent from the reasons the Court gives for rejecting
maximization as a rule for decision that proportionality
will drive results in future dilution cases as well.
Consider, for example, the hypothetical rehearsed by
the Court concerning a jurisdiction with a 10-member
elected body and a 40% minority voting population. See
post, at 19. Assume that as currently constituted the
districting scheme creates four majority-minority dis-
tricts. Even if it is established in this hypothetical
jurisdiction that all of the Gingles factors have been
proved (as was found in De Grandy), and that there are
both a history of discrimination and continuing discrimi-
nation (as was found in De Grandy), can it be seriously
contended that the minority group can succeed, under
any combination of facts, in bringing a 2 challenge to
require the creation of the mathematically possible seven
majority-minority districts? The Court recognizes that
it would be -absurd- to think that 2 would allow such
a result. That, after all, would give the group -effective
political power 75 percent above its numerical
strength--that is, above its proportion in the population.
Post, at 20 (emphasis added). But if it is absurd to give
the members of the group seven seats, why is it not
equally ridiculous to give them six, or five? Or, indeed,
anything beyond the four that would secure them seats
in proportion to their numbers in the population?
If it is absurd to give members of the group seven
seats, that is because, as the Court tacitly acknowledges,
we assume that seats in accord with -numerical
strength- will ensure the group -equal- -political effec-
tiveness.- Thus, deliberately drawing districts so as to
give, under the assumptions of the hypothetical, 40% of
the population control over 50% of the seats, while
leaving 60% of the population with control of a similar
50% of the seats, would seem to us unfair. Greater
deviations from proportionality may appear more
patently -absurd- than lesser, but the dividing line
between what seems fair and what does not remains the
same. The driving principle is proportionality.
Few words would be too strong to describe the
dissembling that pervades the application of the -totality
of circumstances- test under our interpretation of 2. It
is an empty incantation-a mere conjurer's trick that
serves to hide the drive for proportionality that animates
our decisions. As actions such as that brought in Shaw
v. Reno, 509 U. S. ___ (1993), have already started to
show, what might euphemistically be termed the benign
-creation of majority-minority single-member districts to
enhance the opportunity of minority groups to elect
representatives of their choice- might also more simply
and more truthfully be termed -racial gerrymandering.-
Similarly, what we might call a -totality of circum-
stances- test to determine whether an electoral practice
-interacts with social and historical conditions to cause
an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representatives,-
Gingles, 478 U. S., at 47, might more accurately be
called a test for ensuring proportional electoral results
according to race. Cf. id., at 97 (O'Connor, J., concur-
ring in judgment).
In my view, our current practice should not continue.
Not for another Term, not until the next case, not for
another day. The disastrous implications of the policies
we have adopted under the Act are too grave; the
dissembling in our approach to the Act too damaging to
the credibility of the federal judiciary. The -inherent
tension--indeed, I would call it an irreconcilable
conflict-between the standards we have adopted for
evaluating vote dilution claims and the text of the
Voting Rights Act would itself be sufficient in my view
to warrant overruling the interpretation of 2 set out in
Gingles. When that obvious conflict is combined with
the destructive effects our expansive reading of the Act
has had in involving the federal judiciary in the project
of dividing the Nation into racially segregated electoral
districts, I can see no reasonable alternative to abandon-
ing our current unfortunate understanding of the Act.
Stare decisis is a powerful concern, especially in the
field of statutory construction. See Patterson v. McLean
Credit Union, 491 U. S. 164, 172 (1989). See also
Fogerty v. Fantasy, Inc., 510 U. S. ___, ___ (1994) (slip
op., at 5) (Thomas, J., concurring in judgment). But -we
have never applied stare decisis mechanically to prohibit
overruling our earlier decisions determining the meaning
of statutes.- Monell v. New York City Dept. of Social
Services, 436 U. S. 658, 695 (1978). Stare decisis should
not bind the Court to an interpretation of the Voting
Rights Act that was based on a flawed method of
statutory construction from its inception and that in
every day of its continued existence involves the federal
judiciary in attempts to obscure the conflict between our
cases and the explicit commands of the Act. The Court
has noted in the past that stare decisis -`is a principle
of policy,'- Payne, 501 U. S., at 828 (quoting Helvering
v. Hallock, 309 U. S. 106, 119 (1940)), and it -`is
usually the wise policy, because in most matters it is
more important that the applicable rule of law be settled
than it be settled right.'- 501 U. S., at 827 (quoting
Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406
(1932) (Brandeis, J., dissenting)). I cannot subscribe to
the view that in our decisions under the Voting Rights
Act it is more important that we have a settled rule
than that we have the right rule. When, under our
direction, federal courts are engaged in methodically
carving the country into racially designated electoral
districts, it is imperative that we stop to reconsider
whether the course we have charted for the Nation is
the one set by the people through their representatives
in Congress. I believe it is not.
I cannot adhere to the construction of 2 embodied in
our decision in Thornburg v. Gingles. I reject the
assumption implicit in that case that the terms -stan-
dard, practice, or procedure- in 2(a) of the Voting
Rights Act can be construed to cover potentially dilutive
electoral mechanisms. Understood in context, those
terms extend the Act's prohibitions only to state enact-
ments that regulate citizens' access to the ballot or the
processes for counting a ballot. The terms do not
include a State's or political subdivision's choice of one
districting scheme over another. The terms certainly do
not include, as respondents would argue, the size of a
local governing authority.
III
For the foregoing reasons, I agree with the Court's
conclusion that the size of a governing body is not
subject to challenge under 2 of the Voting Rights Act.
I therefore concur in the Court's judgment reversing
the judgment below and remanding for consideration
of respondents' constitutional claim of intentional
discrimination.