ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., joined, and in all but Part II-B of which O'connor, J., joined. O'connor, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Blackmun, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Ginsburg, J., filed a dissenting opinion. Stevens, J., filed a separate opinion, in which Blackmun, Souter, and Ginsburg, JJ., joined.
JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE joined, and in all but Part II-B of which JUSTICE O'CONNOR joined.
This case presents the question whether the size of a governing authority is subject to a vote dilution challenge under § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973.
The State of Georgia has 159 counties, one of which is Bleckley County, a rural county in central Georgia. Black persons make up nearly 20% of the eligible voting population in Bleckley County. Since its creation in 1912, the county has had a single-commissioner form of government for the exercise of "county governing authority." See Ga. Code Ann. § 1-3-3(7) (Supp. 1993). Under this system, the Bleckley County Commissioner performs all of the executive and legislative functions of the county government, including the levying of general and special taxes, the directing and controlling of all county property, and the settling of all claims. Ga. Code. Ann. § 36-5-22.1 (1993). In addition to Bleckley County, about 10 other Georgia counties use the single-commissioner system; the rest have multimember commissions.
In 1985, the Georgia Legislature authorized Bleckley County to adopt a multimember commission consisting of five commissioners elected from single-member districts and a single chairman elected at large. 1985 Ga. Laws, p. 4406. In a referendum held in 1986, however, the electorate did not adopt the change to a multimember commission. (In a similar referendum four years earlier, county voters had approved a five-member district plan for the election of the county school board.)
In 1985, respondents (six black registered voters from Bleckley County and the Cochran/Bleckley County Chapter of the National Association for the Advancement of Colored People) challenged the single-commissioner system in a suit filed against petitioners (Jackie Holder, the incumbent county commissioner, and Probate Judge Robert Johnson, the superintendent of elections). The complaint raised both a constitutional and a statutory claim.
In their constitutional claim, respondents alleged that the county's single-member commission was enacted or maintained with an intent to exclude or to limit the political influence of the county's black community in violation of the Fourteenth and Fifteenth Amendments. At the outset, the District Court made extensive findings of fact about the political history and dynamics of Bleckley County. The court found, for example, that when the county was formed in 1912, few if any black citizens could vote. Indeed, until passage of federal civil rights laws, Bleckley County "enforced racial segregation in all aspects of local government--courthouse, jails, public housing, governmental services--and deprived its black citizens of the opportunity to participate in local government." 757 F. Supp. 1560, 1562 (MD Ga. 1991). And even today, though legal segregation no longer exists, "more black than white residents of Bleckley County continue to endure a depressed socio-economic status." Ibid. No black person has run for or been elected to the office of Bleckley County Commissioner, and the District Judge stated that, having run for public office himself, he "wouldn't run if [he] were black in Bleckley County." See 955 F.2d 1563, 1571 (CA11 1992).
The court rejected respondents' constitutional contention, however, concluding that respondents "had failed to provide any evidence that Bleckley County's single member county commission was the product of original or continued racial animus or discriminatory intent." 757 F. Supp., at 1571. Nor was there evidence that the system was maintained "for tenuous reasons" or that the commissioner himself was unresponsive to the "particularized needs" of the black community. Id., at 1564. There was no "slating process" to stand as a barrier to black candidates, and there was testimony from respondents that they were unaware of any racial appeals in recent elections. Id., at 1562, n. 2, 1583.
In their statutory claim, respondents asserted that the county's single-member commission violated § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973. Under the statute, the suit contended, Bleckley County must have a county commission of sufficient size that, with single-member election districts, the county's black citizens would constitute a majority in one of the single-member districts. Applying the § 2 framework established in Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986), the District Court found that respondents satisfied the first of the three Gingles preconditions because black voters were sufficiently numerous and compact that they could have constituted a majority in one district of a multimember commission. In particular, the District Court found that "if the county commission were increased in number to six commissioners to be elected from five single member districts and if the districts were the same as the present school board election districts, a black majority 'safe' district . . . would result." 757 F. Supp., at 1565. The court found, however, that respondents failed to satisfy the second and third Gingles preconditions--that whites vote as a bloc in a manner sufficient to defeat the black-preferred candidate and that blacks were politically cohesive.
The Court of Appeals for the Eleventh Circuit reversed on the statutory claim. Relying on its decision in Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (CA11 1987), the court first held that a challenge to the single-commissioner system was subject to the same analysis as that used in Gingles. Applying that analysis, the Court of Appeals agreed with the District Court that respondents had satisfied the first Gingles precondition by showing that blacks could constitute a majority of the electorate in one of five single-member districts. The court explained that it was "appropriate to consider the size and geographical compactness of the minority group within a restructured form of the challenged system when the existing structure is being challenged as dilutive." 955 F.2d, at 1569. The Court of Appeals further found that the District Court had erred in concluding that the second and third Gingles preconditions were not met. Turning to the totality of the circumstances, the court found that those circumstances supported a finding of liability under § 2. The court therefore concluded that respondents had proved a violation of § 2, and it remanded for formulation of a remedy, which, it suggested, "could well be modeled" after the system used to elect the Bleckley County school board. Id., at 1573-1574, and n. 20. Because of its statutory ruling, the Court of Appeals did not consider the District Court's ruling on respondents' constitutional claim.
We granted certiorari to review the statutory holding of the Court of Appeals. 507 U.S. (1993).
Section 2 of the Voting Rights Act of 1965 provides that "no 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 or color." 42 U.S.C. § 1973(a). In a § 2 vote dilution suit, along with determining whether the Gingles preconditions are met*fn1 and whether the totality of the circumstances supports a finding of liability, a court must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice. See post, at 3 (O'CONNOR, J., concurring in part and concurring in judgment). As JUSTICE O'CONNOR explained in Gingles: "The phrase vote dilution itself suggests a norm with respect to which the fact of dilution may be ascertained . . . . In order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it should be for minority voters to elect their preferred candidates under an acceptable system." 478 U.S., at 88 (opinion concurring in judgment) (internal quotation marks omitted).
In certain cases, the benchmark for comparison in a § 2 dilution suit is obvious. The effect of an anti-single-shot voting rule, for instance, can be evaluated by comparing the system with that rule to the system without that rule. But where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under § 2. See post, at 3-7 (O'CONNOR, J., concurring in part and concurring in judgment).
As the facts of this case well illustrate, the search for a benchmark is quite problematic when a § 2 dilution challenge is brought to the size of a government body. There is no principled reason why one size should be picked over another as the benchmark for comparison. Respondents here argue that we should compare Bleckley County's sole commissioner system to a hypothetical five-member commission in order to determine whether the current system is dilutive. Respondents and the United States as amicus curiae give three reasons why the single commissioner structure should be compared to a five-member commission (instead of, say, a 3-, 10-, or 15-member body): (1) because the five-member commission is a common form of governing authority in the State; (2) because the state legislature had authorized Bleckley County to adopt a five-member commission if it so chose (it did not); and (3) because the county had moved from a single superintendent of education to a school board with five members elected from single-member districts. See Brief for United States as Amicus Curiae 17-18.
These referents do not bear upon dilution. It does not matter, for instance, how popular the single-member commission system is in Georgia in determining whether it dilutes the vote of a minority racial group in Bleckley County. That the single-member commission is uncommon in the State of Georgia, or that a five-member commission is quite common, tells us nothing about its effects on a minority group's voting strength. The sole commissioner system has the same impact regardless of whether it is shared by none, or by all, of the other counties in Georgia. It makes little sense to say (as do respondents and the United States) that the sole commissioner system should be subject to a dilution challenge if it is rare--but immune if it is common.
That Bleckley County was authorized by the State to expand its commission, and that it adopted a five-member school board, are likewise irrelevant considerations in the dilution inquiry. At most, those facts indicate that Bleckley County could change the size of its commission with minimal disruption. But the county's failure to do so says nothing about the effects the sole commissioner system has on the voting power of Bleckley County's citizens. Surely a minority group's voting strength would be no more or less diluted had the State not authorized the county to alter the size of its commission, or had the county not enlarged its school board. One gets the sense that respondents and the United States have chosen a benchmark for the sake of having a benchmark. But it is one thing to say that a benchmark can be found, quite another to give a convincing reason for finding it in the first place.
To bolster their argument, respondents point out that our § 5 cases may be interpreted to indicate that covered jurisdictions may not change the size of their government bodies without obtaining preclearance from the Attorney General or the federal courts. Brief for Respondents 29; see Presley v. Etowah County Comm'n, 502 U.S. , - (1992) (slip op., at 9-10); Lockhart v. United States, 460 U.S. 125, 131-132, 74 L. Ed. 2d 863, 103 S. Ct. 998 (1983); City of Rome v. United States, 446 U.S. 156, 161, 64 L. Ed. 2d 119, 100 S. Ct. 1548 (1980). Respondents contend that these § 5 cases, together with the similarity in language between §§ 2 and 5 of the Act, compel the conclusion that the size of a government body must be subject to a dilution challenge under § 2. It is true that in Chisom v. Roemer, 501 U.S. 380, 401-402, 115 L. Ed. 2d 348, 111 S. Ct. 2354 (1991), we said that the coverage of §§ 2 and 5 is presumed to be the same (at least if differential coverage would be anomalous). We did not adopt a conclusive rule to that effect, however, and we do not think that the fact that a change in a voting practice must be precleared under § 5 necessarily means that the voting practice is subject to challenge in a dilution suit under § 2.
To be sure, if the structure and purpose of § 2 mirrored that of § 5, then the case for interpreting §§ 2 and 5 to have the same application in all cases would be convincing. But the two sections differ in structure, purpose, and application.*fn2 Section 5 applies only in certain jurisdictions specified by Congress and "only to proposed changes in voting procedures." Beer v. United States, 425 U.S. 130, 138, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976); see 42 U.S.C. § 1973b(b) (specifying jurisdictions where § 5 applies). In those covered jurisdictions, a proposed change in a voting practice must be approved in advance by the Attorney General or the federal courts. § 1973c. The purpose of this requirement "has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 425 U.S., at 141. Under § 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change. See id., at 141. The baseline for comparison is present by definition; it is the existing status. While there may be difficulty in determining whether a proposed change would cause retrogression, there is little difficulty in discerning the two voting practices to compare to determine whether retrogression would occur. See 28 CFR § 51.54(b) (1993).
Retrogression is not the inquiry in § 2 dilution cases. 42 U.S.C. § 1973(a) (whether voting practice "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color"); S. Rep. No. 97-417, p. 68, n. 224 (1982) ("Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for example, involved a retrogressive effect on the political strength of a minority group"). Unlike in § 5 cases, therefore, a benchmark does not exist by definition in § 2 dilution cases. And as explained above, with some voting practices, there in fact may be no appropriate benchmark to determine if an existing voting practice is dilutive under § 2. For that reason, a voting practice that is subject to the preclearance requirements of § 5 is not necessarily subject to a dilution challenge under § 2.
This conclusion is quite unremarkable. For example, in Perkins v. Matthews, 400 U.S. 379, 388, 27 L. Ed. 2d 476, 91 S. Ct. 431 (1971), we held that a town's annexation of land was covered under § 5. Notwithstanding that holding, we think it quite improbable to suggest that a § 2 dilution challenge could be brought to a town's existing political boundaries (in an attempt to force it to annex surrounding land) by arguing that the current boundaries dilute a racial group's voting strength in comparison to the proposed new boundaries. Likewise, in McCain v. Lybrand, 465 U.S. 236, 79 L. Ed. 2d 271, 104 S. Ct. 1037 (1984), we indicated that a change from an appointive to an elected office was covered under § 5. Here, again, we doubt Congress contemplated that a racial group could bring a § 2 dilution challenge to an appointive office (in an attempt to force a change to an elective office) by arguing that the appointive office diluted its voting strength in comparison to the proposed elective office. We think these examples serve to show that a voting practice is not necessarily subject to a dilution challenge under § 2 even when a change in that voting practice would be subject to the preclearance requirements of § 5.
With respect to challenges to the size of a governing authority, respondents fail to explain where the search for reasonable alternative benchmarks should begin and end, and they provide no acceptable principles for deciding future cases. The wide range of possibilities makes the choice "inherently standardless," post, at 5 (O'CONNOR, J., concurring in part and concurring in judgment), and we therefore conclude that a plaintiff cannot maintain a § 2 challenge to the size of a government body, such as the Bleckley County Commission. The judgment of the Court of Appeals is reversed, and the case is remanded for consideration of respondents' constitutional claim.
JUSTICE O'CONNOR, concurring in part and concurring in the judgment.
I agree with JUSTICES KENNEDY and THOMAS that a plaintiff cannot maintain a § 2 vote dilution challenge to the size of a governing authority, though I reach that conclusion by a somewhat different rationale. JUSTICE THOMAS rejects the notion that § 2 covers any dilution challenges, and would hold that § 2 is limited to "state enactments that regulate citizens' access to the ballot or the processes for counting a ballot." Post, at 59. As JUSTICE STEVENS points out, however, stare decisis concerns weigh heavily here. Post, at 7-10 (opinion of STEVENS, J.); see also Thornburg v. Gingles, 478 U.S. 30, 84, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986) (O'CONNOR, J., concurring in judgment) ("We know that Congress intended to allow vote dilution claims to be brought under § 2"); id., at 87 ("I agree with the Court that proof of vote dilution can establish a violation of § 2"). These concerns require me to reject Justice THOMAS' suggestion that we overhaul our established reading of § 2.
I also agree with JUSTICE BLACKMUN, see post, at 1-6, that our precedents compel the conclusion that the size of the Bleckley County Commission is both a "standard, practice, or procedure" under § 2 and a "standard, practice, or procedure with respect to voting" under § 5. See, e.g., Presley v. Etowah County Comm'n, 502 U.S. , (1992) (slip op., at 11) (change in size is a change in a "standard, practice, or procedure" because the change "increases or diminishes the number of officials for whom the electorate may vote"); Lockhart v. United States, 460 U.S. 125, 131-132, 74 L. Ed. 2d 863, 103 S. Ct. 998 (1983) (change from three-member commission to five-member commission is subject to § 5 preclearance); City of Rome v. United States, 446 U.S. 156, 160-161, 64 L. Ed. 2d 119, 100 S. Ct. 1548 (1980) (it "is not disputed" that an expansion in the size of a Board of Education is subject to § 5 preclearance); Bunton v. Patterson, decided with Allen v. State Board of Elections, 393 U.S. 544, 569-571, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969) (change from elected to appointed office is subject to § 5 preclearance); Allen, supra, at 566-567 ( § 2 should be given "the broadest possible scope").
As JUSTICES KENNEDY and BLACKMUN both recognize, in these cases we have consistently said that a change in size is a "standard, practice, or procedure with respect to voting" that is subject to § 5 preclearance. See ante, at 7 (opinion of KENNEDY, J.); post, at 2-4 (BLACKMUN, J., dissenting). And though our cases involving size have concerned § 5, I do not think it possible to read the terms of § 2 more narrowly than the terms of § 5. Section 2 covers any "standard, practice, or procedure," while § 5 covers any "standard, practice, or procedure with respect to voting." As a textual matter, I cannot see how a practice can be a "standard, practice, or procedure with respect to voting," yet not be a "standard, practice, or procedure." Indeed, the similarity in language led to our conclusion in Chisom v. Roemer, 501 U.S. 380, 401-402, 115 L. Ed. 2d 348, 111 S. Ct. 2354 (1991), that, at least for determining threshold coverage, §§ 2 and 5 have parallel scope.
But determining the threshold scope of coverage does not end the inquiry, at least so far as § 2 dilution challenges are concerned. As JUSTICES KENNEDY and BLACKMUN agree, the fact that the size of a governing authority is a "standard, practice, or procedure" does not answer the question whether respondents may maintain a § 2 vote dilution challenge. See ante, at 5 (opinion of KENNEDY, J.); post, at 6 (BLACKMUN, J., dissenting). Section 2 vote dilution plaintiffs must establish that the challenged practice is dilutive. In order for an electoral system to dilute a minority group's voting power, there must be an alternative system that would provide greater electoral opportunity to minority voters. "Put simply, in order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it 'should' be for minority voters to elect their preferred candidates under an acceptable system." Gingles, 478 U.S., at 88 (O'CONNOR, J., concurring in judgment). As we have said, "unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." Id., at 50, n. 17 (emphasis in original); see also id., at 99 (O'CONNOR, J., concurring in judgment) ("the relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution") (emphasis added).
Accordingly, to determine whether voters possess the potential to elect representatives of choice in the absence of the challenged structure, courts must choose an objectively reasonable alternative practice as a benchmark for the dilution comparison. On this, there is general agreement. See ante, at 5 (opinion of KENNEDY, J.) ("a court must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice"); post, at 6 (BLACKMUN, J., dissenting) ("the allegedly dilutive mechanism must be measured against the benchmark of an alternative structure or practice that is reasonable and workable under the facts of the specific case"). We require preclearance of changes in size under § 5, because in a § 5 case the question of an alternative benchmark never arises--the benchmark is simply the former practice employed by the jurisdiction seeking approval of a change. See ante, at 8 (opinion of KENNEDY, J.).
But § 2 dilution challenges raise more difficult questions. This case presents the question whether, in a § 2 dilution challenge to size, there can ever be an objective alternative benchmark for comparison. And I agree with JUSTICE KENNEDY that there cannot be. As JUSTICE KENNEDY points out, ante, at 5, the alternative benchmark is often self-evident. In a challenge to a multimember at-large system, for example, a court may compare it to a system of multiple single-member districts. See Gingles, supra, at 38, 50; Davidson, Minority Vote Dilution: An Overview, in Minority Vote Dilution 5 (C. Davidson ed. 1984). Similarly, a court may assess the dilutive effect of majority vote requirements, numbered posts, staggered terms, residency requirements, or anti-single shot rules by comparing the election results under a system with the challenged practice to the results under a system without the challenged practice. Cf. City of Rome, supra, at 183-185; U.S. Comm'n on Civil Rights, The Voting Rights Act: Ten Years After, pp. 206-208 (1975). Note, Application of Section 2 of the Voting Rights Act to Runoff Primary Election Laws, 91 Colum. L. Rev. 1127, 1148 (1991). Though there may be disagreements about the precise appropriate alternative practice in these cases, see Gingles, supra, at 88-89 (O'CONNOR, J., concurring in judgment), there are at least some objectively determinable constraints on the dilution inquiry.
This is not so with § 2 dilution challenges to size, however. In a dilution challenge to the size of a governing authority, choosing the alternative for comparison--a hypothetical larger (or smaller) governing authority--is extremely problematic. See ante, at 6-7 (opinion of KENNEDY, J.). The wide range of possibilities makes the choice inherently standardless. Here, for example, respondents argued that the single-member commission structure was dilutive in comparison to a five-member structure, in which African-Americans would probably have been able to elect one representative of their choice. Some groups, however, will not be able to constitute a majority in one of five districts. Once a court accepts respondents' reasoning, it will have to allow a plaintiff group insufficiently large or geographically compact to form a majority in one of five districts to argue that the jurisdiction's failure to establish a 10-, 15-, or 25-commissioner structure is dilutive. See, e. g., Romero v. Pomona, 883 F.2d 1418, 1425, n. 10 (CA9 1989); Heath, Managing the Political Thicket: Developing Objective Standards in Voting Rights Litigation, 21 Stetson L. Rev. 819, 827 (1992) ("Once one departs from the current number of districts or other objective standard, the test loses its validity as a threshold standard").
Respondents argue that this concern with arbitrary and standardless intrusions into the size of local governing authority is overstated. Respondents' principal support for this conclusion is that a five-member commission is the most common size for Georgia. But a five-member commission is not the only common size in Georgia: 22 Georgia counties have three-member commissions (and one county has an 11-member commission). Moreover, there is no good reason why the search for benchmarks should be limited to Georgia. Expanding the search nationwide produces many 20-person county commissions in Tennessee, and 40-member commissions in Wisconsin. DeSantis, County Government: A Century of Change, in The Municipal Yearbook 1989, pp. 80, 83. In sum, respondents do not explain how common an alternative practice must be before it can be a reliable alternative benchmark for the dilution comparison, nor do they explain where the search for alternative benchmarks should begin and end.
Respondents' failure to provide any meaningful principles for deciding future cases demonstrates the difficulty with allowing dilution challenges to the size of a governing authority. Under respondents' open-ended test, a wide range of state governmental bodies may be subject to a dilution challenge. Within each State there are many forms of government, including county commissions that range dramatically in size. For example, the majority of county commissions in New Jersey have seven members, but three counties have smaller commissions and one has a larger commission. DeSantis, Municipal Yearbook 1989, at 76. Similarly, in South Carolina the norm is a seven-member commission, but a number of counties deviate. Id., at 79. In Tennessee, the average size for a county commission is 19 members, but one county has as few as 9 and another has as many as 40. Id., at 80. And in Wisconsin the average size is 27 members, but the commission sizes range from 7 to 46. Id., at 83.
Nor are deviations from the norm limited to counties. Statewide governing authorities also range dramatically in size, and often do not correlate to the size of the State. For example, Texas has only 31 members in its State Senate, while tiny Rhode Island has 50. Council of State Governments, State Elective Officials and the Legislatures 1993-94, p. vi. The Texas Senate is smaller than the national average and the Rhode Island Senate is larger. Similarly, California has an unusually small 80-person Assembly, while New Hampshire has a 400-person House. Ibid.
The discrepancies in size among state and local governing authorities reinforce my concern that the limiting principle offered by respondents will in practice limit very little. Though respondents purport to present Bleckley County as unique, it is not. County commissions throughout New Jersey, South Carolina, Tennessee, and Wisconsin, and the State Legislatures of Texas, Rhode Island, California, and New Hampshire are ripe for a dilution challenge under respondents' theory, since they do not fit the norm for their State. Moreover, though my examples are some of the more extreme ones, they are not alone. In these cases, and perhaps in many more, the potential reach of allowing dilution challenges to size will not be meaningfully circumscribed by the open-ended requirement that the alternative benchmark be "reasonable and workable." Post, at 6 (BLACKMUN, J., dissenting).
For these reasons, I concur in the conclusion that respondents' dilution challenge to the size of the Bleckley County Commission cannot be maintained under § 2 of the Voting Rights Act, and I join Parts I, II-A, and III of JUSTICE KENNEDY's opinion. Because the Court appropriately reverses the judgment below and remands for consideration of respondents' constitutional claim of intentional discrimination, I also concur in the judgment.
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 procedure" 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 mechanism 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 "balkanization" 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 government body is not a "standard, practice, or procedure" because, properly understood, those terms reach only state enactments that limit citizens' access to the ballot.
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 enforcement 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 apportioning 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 government, 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.*fn1 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.
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) (referring to actions securing access to the ballot as the "first generation" of Voting Rights Act claims).*fn2 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 registration 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, 22 L. Ed. 2d 1, 89 S. Ct. 817 (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 procedure 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 determining a point of comparison against which dilution can be measured. As Justice Frankfurter observed several years before Allen, "talk 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, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962) (Frankfurter, J., dissenting). See also Thornburg v. Gingles, 478 U.S. 30, 88, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986) (O'CONNOR, J., concurring in judgment) ("In order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it 'should' be for minority voters to elect their preferred candidates under an acceptable system"). But in setting the benchmark of what "undiluted" or fully "effective" voting strength should be, a court must necessarily make some judgments 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 representative 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, 64 L. Ed. 2d 47, 100 S. Ct. 1490 (1980) (plurality opinion) (noting that single-member districts should be preferred in court-ordered remedial schemes); Connor v. Finch, 431 U.S. 407, 415, 52 L. Ed. 2d 465, 97 S. Ct. 1828 (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.*fn3 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.*fn4 Today, although they have come ...