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

  Justice Blackmun, with whom Justice Stevens,
Justice Souter, and Justice Ginsburg join, dissenting.
  Five Justices today agree that the size of a governing
body is a -standard, practice, or procedure- under 2 of
the Voting Rights Act of 1965, as amended (Act), 42
U. S. C. 1973.  A different five Justices decide, under
three separate theories, that voting rights plaintiffs
cannot bring 2 dilution challenges based on size.  I,
however, believe that the Act, its history, and our own
precedent require us to conclude not only that the size
of a governing body is a -standard, practice, or proce-
dure- under 2, but also that minority voters may
challenge the dilutive effects of this practice by demon-
strating their potential to elect representatives under an
objectively reasonable alternative practice.  Accordingly,
I dissent from the Court's decision that minority voters
cannot bring 2 vote dilution challenges based on the
size of an existing government body.

                      I
  Section 2(a) of the Act prohibits the imposition or
application of any -voting qualification or prerequisite to
voting, or standard, practice, or procedure- that -results
in a denial or abridgement of the right of any citizen of
the United States to vote on account or race or color.-
42 U. S. C. 1973(a) (emphasis added).  Section 5
parallels 2 by requiring certain jurisdictions to preclear
with the Attorney General a change in -any voting
qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting.-  42
U. S. C. 1973c (emphasis added).  Under the broad
interpretation that this Court, Congress, and the
Attorney General consistently have given the Act in
general and 5 in particular, the practice of electing a
single commissioner, as opposed to a multimember
commission, constitutes a -standard, practice, or proce-
dure- under 2.
  Nearly 30 years of precedent admonish us that the
Act, which was adopted -for the broad remedial purpose
of `rid[ding] the country of racial discrimination in
voting,'- Chisom, ___ U. S., at ___ (slip op. 22), quoting
South Carolina v. Katzenbach, 383 U. S. 301, 315 (1966),
should be given -the broadest possible scope.-  Allen v.
State Board of Elections, 393 U. S. 544, 567 (1969).
Because -the Act itself nowhere amplifies the meaning
of the phrase `standard, practice, or procedure with
respect to voting,' the Court -ha[s] sought guidance from
the history and purpose of the Act.-  Dougherty County
Bd. of Ed. v. White, 439 U. S. 32, 37 (1978); see also
McCain v. Lybrand, 465 U. S. 236, 246 (1984) (the Act
must -be interpreted in light of its prophylactic purpose
and the historical experience which it reflects-).
  Consistent with the Act's remedial purposes, this
Court has held that a wide variety of election- and
voting-related practices fit within the term -standard,
practice, or procedure.-  Among the covered practices are
the annexation of land to enlarge city boundaries, see
Perkins v. Matthews, 400 U. S. 379, 388 (1971), and
Pleasant Grove v. United States, 479 U. S. 462, 467
(1987); a rule requiring employees to take leaves of
absence while they campaign for elective office, see
Dougherty County Bd. of Ed., 439 U. S., at 34; candidate
filing dates and other procedural requirements, see
Whitley v. Williams, decided with Allen v. State Board
of Elections, supra; Hadnott v. Amos, 394 U. S. 358, 365
(1969); NAACP v. Hampton County Election Comm'n,
470 U. S. 166, 176-177 (1985); and candidate residency
requirements, see City of Rome v. United States, 446
U. S., at 160.
  Specifically, this Court long has treated a change in
the size of a governing authority as a change in a
-standard, practice, or procedure- with respect to voting.
In City of Rome, 446 U. S., at 161, it noted that it -is
not disputed- that an expansion in the size of a Board
of Education was -within the purview of the Act- and
subject to preclearance under 5.  In Lockhart v. United
States, 460 U. S. 125, 131 (1983), it stated that a
change from a three-member commission to a five-
member commission was subject to 5 preclearance.
And, most recently, it said that the term -standard,
practice, or procedure with respect to voting- included a
change in the size of a governing authority or an
increase or decrease in the number of elected offices.
Presley v. Etowah County Comm'n, 502 U. S. ___, ___
(1992).
  This conclusion flowed naturally from the holding in
Bunton v. Patterson, 393 U. S. 544 (1969), that a change
from an elected to an appointed office was a -standard,
practice, or procedure with respect to voting.-  In
Bunton, the Court reasoned that the power of a citizen's
vote is affected by the change because the citizen has
been -prohibited from electing an officer formerly subject
to the approval of the voters.-  Id., at 570.  The reverse
is also true: a change from an appointed to an elected
office affects a citizen's voting power by increasing the
number of officials for whom he may vote.  See McCain
v. Lybrand, 465 U. S. 236 (1984).  And, as the Court
recognized in Presley, a change in the size of a govern-
ing authority is a -standard, practice, or procedure with
respect to voting- because the change -increase[s] or
diminish[es] the number of officials for whom the
electorate may vote,- 502 U. S., at ___ (slip op. 11); this
change bears -on the substance of voting power- and has
-a direct relation to voting and the election process.-
Ibid.
  To date, our precedent has dealt with 5 challenges to
a change in the size of a governing authority, rather
than 2 challenges to the existing size of a governing
body.  I agree with Justice O'Connor, ante, at 2, that,
as a textual matter, -standard, practice, or procedure-
under 2 is at least as broad as -standard, practice, or
procedure with respect to voting- under 5.  In fact,
because of the -close connection- between 2 and 5, we
interpret them similarly.  See Chisom v. Roemer, 501
U. S. ___, ___ (1991) (slip op. 22) (concluding that it
would be -anomalous- to do otherwise).  And in the
context of 2, the Court stated:  -Section 2 protected the
right to vote, and it did so without making any distinc-
tions or imposing any limitations as to which elections
would fall within its purview.-  Chisom, ___ U. S., at
___ (slip op. 10).  See also Houston Lawyers' Assn. v.
Texas Attorney Gen., ___ U. S. ___ (1991) (rejecting a
-single-member-office- exception to 2).
  Congress repeatedly has endorsed the broad construc-
tion this Court has given the Act in general and 5 in
particular.  Significantly, when Congress considered the
1982 amendments to the Voting Rights Act, it made no
effort to curtail the application of 5 to changes in size,
in the face of the longstanding practice of submitting
such changes for preclearance, and on the heels of this
Court's recognition just two years earlier that it was
-not disputed- that a change in the size of a governing
body was covered under 5.  See City of Rome, 446
U. S., at 161.  Similarly, the Attorney General, whose
construction of the Act -is entitled to considerable
deference,- NAACP v. Hampton County Election Comm'n,
470 U. S. 166, 178-179 (1985), for years has required
5 preclearance of the expansion or reduction of a gov-
erning body.  It is not surprising that no party to this
case argued that the size of a governing authority is not
a -standard, practice, or procedure.-
  In light of this consistent and expansive interpretation
of the Act by this Court, Congress, and the Attorney
General, the Act's -all-inclusive- definition of -standard,
practice, or procedure,- cannot be read to exclude
threshold coverage of challenges to the size of a govern-
ing authority.  As five members of the Court today
agree, the size of a governing authority is a -standard,
practice, or procedure- with respect to voting for pur-
poses of 2 as well as 5 of the Voting Rights Act.

                     II
  Although five Justices agree that the size of a govern-
ing body is a -standard, practice, or procedure- under 2,
a like number of Justices conclude, under varying ration-
ales, that Voting Rights plaintiffs nonetheless cannot
bring size challenges under 2.  This conclusion is
inconsistent with our precedent giving the Act -`the
broadest possible scope' in combatting racial discrimina-
tion,- Chisom, ___ U. S., at ___, quoting Allen, 393
U. S., at 567, and with the vote-dilution analysis
prescribed in Thornburg v. Gingles, 478 U. S. 30 (1986).
  To prevail in a vote-dilution challenge, minority voters
must show that they -possess the potential to elect
representatives in the absence of the challenged structure
or practice.- Id., at 50, n. 17 (second emphasis sup-
plied).  There is widespread agreement, see ante, at 5
(opinion of Kennedy, J., and Rehnquist, C.J.); ante, at
3 (opinion of O'Connor, J.), that minority voters'
potential -in the absence of- the allegedly dilutive
mechanism must be measured against the benchmark of
an alternative structure or practice that is reasonable
and workable under the facts of the specific case.
  By all objective measures, the proposed five-member
Bleckley County Commission presents a reasonable,
workable benchmark against which to measure the
practice of electing a sole commissioner.  First, the
Georgia Legislature specifically authorized a five-member
commission for Bleckley County.  1985 Ga. Laws 4406.
Moreover, a five-member commission is the most
common form of governing authority in Georgia.  See
Georgia Dept of Community Affairs, County Government
Information Catalog (1989) (Table 1.A: Form of Govern-
ment) (76 of Georgia's 159 counties had five commission-
ers, including 25 counties smaller than Bleckley County).
Bleckley County, as one of a small and dwindling
number of counties in Georgia still employing a sole
commissioner, markedly departs from practices elsewhere
in Georgia.  This marked -depart[ure] . . . from practices
elsewhere in the jurisdiction . . . bears on the fair-
ness of [the  sole commissioner's] impact.-  S. Rep.
No. 97-417, p. 29, n. 117 (1982).  Finally, the county
itself has moved from a single superintendent of educa-
tion to a school board with five members elected from
single-member districts, providing a workable and
readily available model for commission districts.  Thus,
the proposed five-member baseline is reasonable and
workable.
  In this case, identifying an appropriate baseline
against which to measure dilution is not difficult.  In
other cases, it may be harder.  But the need to make
difficult judgments does not -justify a judicially created
limitation on the coverage of the broadly worded statute,
as enacted and amended by Congress.-  Chisom, ___
U. S., at ___ (slip op. 22).  Vote dilution is inherently a
relative concept, requiring a highly -flexible, fact-inten-
sive- inquiry, Gingles, 478 U. S., at 46, and calling for
an exercise of the -court's overall judgment, based on
the totality of the circumstances and guided by those
relevant factors in the particular case,- as mandated by
Congress.  S. Rep. No. 97-417, p. 29, n. 118.  Certainly
judges who engage in the complex task of evaluating
reapportionment plans and examining district lines will
be able to determine whether a proposed baseline is an
appropriate one against which to measure a claim of
vote dilution based on the size of a county commission.
  There are, to be sure, significant constraints on size
challenges.  Minority plaintiffs, who bear the burden of
demonstrating dilution, also bear the burden of demon-
strating that their proposed benchmark is reasonable
and workable.  One indication of benchmark's reason-
ableness is its grounding in history, custom, or practice.
This consideration will discourage size challenges to
traditional single-member executive offices, such as
governors and mayors, or even sheriffs or clerks of court.
By tradition and practice, these executive positions are
occupied by one person, so plaintiffs could rarely point
to an objectively reasonable alternative size that has any
foundation in the past or present.  Cf. The Federalist
No. 69, p. 415 (C. Rossiter ed. 1961) (A. Hamilton)
(-[T]he executive authority, with few exceptions, is to be
vested in a single magistrate-).  The sole commissioner,
by contrast, holds plenary legislative, as well as execu-
tive, power.  Ga. Code Ann. 36-5-22.1 (1993).  A one-
member legislature, far from being the norm, is an
anomaly.  Accordingly, the Eleventh Circuit, while
permitting 2 challenges to the practice of electing a
sole commissioner, has held that this provision cannot be
used to alter the practice of electing a single person to
offices such as lieutenant governor, sheriff, probate
judge, and tax collector.  See Dillard v. Crenshaw
County, 831 F. 2d 246, 251 (1987); United States v.
Dallas County Comm'n, 850 F. 2d 1430, 1432, n. 1
(1988), cert. denied, 490 U. S. 1030 (1989).
  Additionally, every successful vote-dilution challenge
will be based on the -totality of the circumstances,-
often including the lingering effects of past discrimina-
tion.  S. Rep. No. 97-417, pp. 28-30.  Not every racial
or language minority that constitutes 5% of the popula-
tion has a claim to have a governing authority expanded
to 20 members in order to give them an opportunity to
elect a representative.  Instead, the voters would have
to prove that a 20-member governing authority was a
reasonable benchmark-which, of course, respondents
could not do here-and that their claim satisfied the
three Gingles preconditions, 478 U. S., at 49, and was
warranted under the totality of the circumstances.
  With these limitations, successful vote-dilution chal-
lenges to the size of a governing authority always will
be based not on abstract manipulation of numbers, but
on a -searching practical evaluation of `past and present
reality.'-  S. Rep. No. 97-417, p. 30, quoting White v.
Regester, 412 U. S. 755, 770 (1973).  These limitations
protect against a proliferation of vote-dilution challenges
premised on eccentric or impracticable alternative
methods of redistricting.

                     III
  The Voting Rights Act of 1965 was bold and ambitious
legislation, designed to eradicate the vestiges of past
discrimination and to make members of racial and
language minorities full participants in American
political life.  Nearly 30 years after the passage of this
landmark civil rights legislation, its goals remain
unfulfilled.  Today, the most blatant forms of discrimina-
tion-including poll taxes, literacy tests, and -white-
primaries-have been eliminated.  But subtler, more
complex means of infringing minority voting
strength-including submergence or dispersion
of minority voters-are still present and indeed preva-
lent.  We have recognized over the years that seemingly
innocuous and even well-intentioned election practices
may impede minority voters' ability not only to vote, but
to have their votes count.  It is clear that the practice
of electing a single-member county commission can be
one such dilutive practice.  It is equally clear that a
five-member commission is an appropriate benchmark
against which to measure the alleged dilutive effects
of Bleckley County's practice of electing a sole
commissioner.  I respectfully dissent.