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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-2012
- --------
- 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.
-