|Morse v. Republican Party of Virginia (94-203), 517 U.S. 186 (1996). |
[ Thomas ]
[ Stevens ]
[ Breyer ]
[ Scalia ]
[ Kennedy ]
FORTIS MORSE, KENNETH CURTIS BARTHOLOMEW and KIMBERLY J. ENDERSON,
APPELLANTS v. REPUBLICAN PARTY OF VIRGINIA et
on appeal from the united states district court for the western district of virginia
Two discrete questions of statutory interpretation control appellants' claim under §5 of the Voting Rights Act: whether the Republican Party of Virginia is a "State or political subdivision" and, if so, whether the fee imposed upon its conventioneers constitutes a procedure "with respect to voting." 42 U.S.C. § 1973c (1988 ed.). The plain meaning of the Voting Rights Act mandates a negative answer to both of these questions. The text of the Act also forecloses the availability of a private cause of action under §10. I therefore dissent.
Section 5 declares that, "[w]henever a State or political subdivision . . . shall enact or seek to administer" any change with respect to voting, it may not institute that change absent preclearance. 42 U.S.C. § 1973c (emphasis added). Only when a "State or political subdivision" promulgates new voting rules is §5 even arguably implicated. See United States v. Sheffield Bd. of Comm'rs,
435 U.S. 110, 141 (1978) (Stevens, J., dissenting) ("As a starting point, it is clear that [§5] applies only to actions taken by two types of political units--States or political subdivisions"). Thus, the first issue to be decided here is whether the Republican Party of Virginia is the type of entity that must comply with the preclearance requirement of §5.
Justice Stevens does not directly address this threshold question of pure statutory interpretation. He begins with the Attorney General's regulation, rather than with the text of §5 itself. Cf. Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 128 (1991) ("As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us"). In my opinion, the Republican Party of Virginia is not a "State or political subdivision" within the meaning of §5, and that statute is therefore not triggered in this case.
The Voting Rights Act provides no definition of the term "State." When words in a statute are not otherwise defined, it is fundamental that they "will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). The ordinary meaning of the word "State" does not encompass a partisan group such as the Republican Party of Virginia. Rather, that word--particularly when capitalized--is generally understood to mean one of the 50 constituent States of the Union. See Webster's New International Dictionary 82 (2d ed. 1957) (defining "State" as "any body of people occupying a definite territory and politically organized under one government, esp. one that is a sovereign, or not subject to external control; . . . Cf. commonwealth"). Indeed, it nearly belabors the point to explain that, in common parlance, "State" normally refers to a geographical unit of the United States, such as California or Massachusetts. Our own opinions in §5 cases use the word in this natural fashion. See, e.g., United States v. Sheffield Bd. of Comm'rs, supra, at 113 (section 5 "requires that States, like Alabama" preclear new voting rules) (emphasis added); Hadnott v. Amos, 394 U.S. 358, 365-366 (1969) (section 5 "provides that whenever States like Alabama seek to administer" voting changes, they must preclear) (emphasis added). Even Justice Stevens employs "State" in its usual sense. See ante, at 4-5 ("Virginia is one of the seven States to which the §4 coverage formula was found applicable . . . . The entire Commonwealth has been subject to the preclearance obligation in §5 ever since") (emphasis added).
That the statutory term "State" should be applied in light of its ordinary meaning is reinforced by the Act's definition of the term "political subdivision." Section 14(c)(2) states that " `political subdivision' shall mean any county or parish," with certain exceptions not relevant here. 42 U.S.C. § 1973l(c)(2) (1988 ed.). As appellants' counsel explained at oral argument, the phrase "political subdivision" refers to "particular geographic regions" within a State, such as New York's Westchester County. Tr. of Oral Arg. 15-16. See also United States v. Sheffield Bd. of Comm'rs, supra, at 128, n. 15 (section 14(c)(2) "obviously refer[s] to a geographic territory, and the usages of `political subdivision' in the Act and the legislative history leave no doubt that it is in this sense that Congress used the term"). [n.1] Given that limited understanding of "political subdivision," it would be odd indeed if the term "State," which immediately precedes "political subdivision," did not have an analogous meaning. The terms "State" and "political subdivision" should both be construed to refer solely to the various territorial divisions within a larger unit of territorially defined government.
There is further statutory evidence to support this interpretation of "State." The Act elsewhere speaks of the "territory" of a State or political subdivision. See, e.g., §1973b(a)(1)(F) (referring to "such State or political subdivision and all governmental units within its territory") (emphasis added). Political parties, of course, are made up not of land, but of people. It is nonsensical to talk of things existing "within [the] territory" of a political party. Also, the definitional section of the 1970 Extension of the Voting Rights Act, Pub. L. 91-285, 84 Stat. 316, indicates that Congress uses the word "State" in voting rights statutes to connote geographic territories, not political parties. See 42 U.S.C. § 1973aa 1(h) (defining, for purposes of §202 of the Extension Act, "[t]he term `State' " as "each of the several States and the District of Columbia").
A State, of course, cannot "enact or seek to administer" laws without resort to its governmental units. §1973c. A State necessarily operates through its legislative, executive, and judicial bodies. When the legislature passes a law, or an administrative agency issues a policy directive, official action has unquestionably been taken in the name of the State. Accordingly, voting changes administered by such entities have been governed consistently by §5. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544 (1969) (requiring preclearance of amendments to Mississippi Code enacted by state legislature and bulletin distributed by Virginia Board of Elections). See also United States v. Saint Landry Parish School Bd., 601 F. 2d 859,864, n. 8 (CA5 1979) ("The cases uniformly speak of §5 as applying to `enactments,' `legislation,' `regulations,' and `laws'--all actions taken by the governmental authority of state"). Unlike the Virginia General Assembly, however, the Republican Party of Virginia is not an organ of the State through which the State must conduct its affairs, and the Party has no authority to formulate state law. The Party's promulgations thus cannot be within §5's reach of "any state enactment which alter[s] the election law of a covered State." Allen v. State Bd. of Elections, supra, at 566 (quoted ante, at 16).
Although Justice Stevens points to past preclearance submissions as evidence that §5 covers political parties, ante, at 12, n. 18, those submissions are largely irrelevant to the meaning of §5. It should come as no surprise that once the Attorney General promulgated a regulation expressly covering political parties, 28 CFR § 51.7 (effective Jan. 5, 1981), some of those organizations requested preclearance and the Justice Department processed their requests. Tellingly, Justice Stevens is able to cite only a handful of party submissions that predate the Attorney General's regulation. [n.2] This fact confirms what common sense instructs: most people who read §5 simply would not think that the word "State" embraces political parties. This common sense understanding also explains why virtually every one of this Court's §5 cases has involved a challenge to, or a request for approval of, action undertaken by a State or a unit of state government. [n.3]
In light of the plain meaning of the phrase "State or political subdivision," I see no reason to defer to the Attorney General's regulation interpreting that statute to cover political parties. See 28 CFR § 51.7 (1995). Though the Party has not challenged the validity of the regulation, it hardly follows that this Court is bound to accept it as authoritative. We defer to the Attorney General on statutory matters within her authority "only if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable." Presley v. Etowah County Comm'n, 502 U.S. 491, 508 (1992). As explained, §5 on its face resolves the question whether political parties are subject to the preclearance rule of §5: A political party is simply not a "State," regardless of the particular activity in which it might be engaging. Congress has conveyed its intent to limit §5 to the States themselves and their political subdivisions. Accordingly, the regulation warrants no judicial deference. Cf. id., at 508-509 (declining to defer to Attorney General's construction of §5). [n.4]
My reading of §5 is squarely supported by our only precedent on the applicability of §5 to political parties, Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U.S. 809 (1972). Williams held, as a matter of "statutory construction," Civ. Action No. 16286, at 5, that §5 does not apply to political parties. The District Court stated that "[t]he Act does not refer to actions by political parties but refers to actions by a `State or political subdivision.' " Id., at 4. Though the District Court believed, based on legislative history, that Congress probably meant to include the election of party delegates under the Act, the court felt itself bound by the fact that §5 addresses only actions of the State. This limitation was further evidenced, in the court's view, by §5's provision that preclearance be sought by "the chief legal officer or other appropriate official of such State or subdivision." 42 U.S.C. § 1973c (1988 ed.). The District Court concluded that the State itself had "no connection" with the delegate selection process other than providing for the public filing of the rules for selection, and that, though the action of the Party might be "state action" in the constitutional sense, §5 could not be read so broadly. Civ. Action No. 16286, at 5. Essential to the judgment of the District Court in Williams was the holding that §5 does not encompass political parties. The affirmance of that holding, which is entitled to precedential weight, is instructive here. [n.5]
Contrary to the suggestion of Justice Stevens, United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110 (1978), does not support the contention that the Republican Party of Virginia is subject to §5. See ante, at 16-17, 34. The precise question presented in that case was whether §5 required the city of Sheffield, Alabama, to preclear a voting change. The controversy arose because §14(c)(2) of the Act defines "political subdivision" as a county or parish, "except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 42 U.S.C. § 1973l(c)(2) (1988 ed.). Notwithstanding the facts that the city was not a county or parish and that it did not register voters, the Court concluded that the city was subject to the preclearance requirement of §5. The essence of Sheffield's rationale was that because the entire State of Alabama was designated for coverage pursuant to §4(b), the city of Sheffield was covered by §5 because it was a "political unit" (though not a "political subdivision") within Alabama. 435 U. S., at 127-128.
Whether or not Sheffield was correct as an original matter, it stands, at most, for the proposition that a local unit of government, like a city, may be considered the "State" for purposes of §5: "[Section] 5 . . . applies territorially and includes political units like Sheffield whether or not they conduct voter registration." Id., at 130. In accordance with that proposition, we have applied Sheffield to find coverage of other types of governmental bodies under §5. See, e.g., Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 45 (1978) (finding §5 coverage of county school board under Sheffield and noting that "[i]f only those governmental units with official electoral obligations actuate the preclearance requirements of §5," the purposes of the Act could be undermined) (emphasis added). But we have never applied Sheffield to find a nongovernmental organization to be within the scope of §5. This is because Sheffield says little about the question whether a group that does not operate in the name of the State, or in the name of any governmental unit of a State, must comply with §5. If anything, Sheffield suggests, with respect to this case, that a political party is not so obligated, because a political party is quite plainly neither a territorial division of a State nor a governmental unit acting on behalf of any such territory.
Undoubtedly, Sheffield speaks in broad terms when it states that §5 "applies to all entities having power over any aspect of the electoral process within designated jurisdictions, not only to counties or to whatever units of state government perform the function of registering voters." 435 U. S., at 118 (quoted ante, at 17, 34). That language must be viewed in the context of the case, however. The holding of Sheffield applies only to governmental bodies within a State--i.e., cities, counties, or municipalities, and their agencies--not to private groups with a partisan, or "political," agenda. See, e.g, Sheffield, 435 U. S., at 117 ("We first consider whether Congress intended to exclude from §5 coverage political units, like Sheffield, which have never conducted voter registration"); id., at 124 ("Congress could not have intended §5's duties to apply only to those cities that register voters); ibid. ("local political entities like Sheffield" can impair minority votes in ways other than registration) (all emphases added). In the legislative history Sheffield cites as support for its holding that "political units" are covered regardless of whether they register voters, every entity mentioned is a governmental one. See id., at 133-134 (cities; school districts; city councils; precincts; county districts; and municipalities). There is no basis in Sheffield and its progeny for covering nongovernmental entities under §5.
Nonetheless, there is a critical similarity between this case and Sheffield. Just as in Sheffield, the Court has inflated the phrase "State or political subdivision" to implausible proportions. The dissent in Sheffield warned that "the logistical and administrative problems inherent in reviewing all voting changes of all political units strongly suggest that Congress placed limits on the preclearance requirement." 435 U. S., at 147 (Stevens, J., dissenting). Today, the Justices that support the judgment go much further and require all "established" political parties, ante, at 33, in designated States to preclear all changes " `affecting voting.' " Ante, at 41. See also ante, at 4 (Breyer, J.) (suggesting that political groups that receive state law preferences in access to, and placement on, the ballot must preclear "voting related" changes). As the Solicitor General candidly acknowledged, an "affecting voting" or "voting related" rule cannot be limited to practices administered at conventions; it logically extends to practices at all local mass meetings that precede conventions. See Brief for United States as Amicus Curiae 20, n. 11. And almost all activity that occurs at a nominating convention theoretically affects voting; indeed, Justice Stevens is unable to articulate any principled dividing line between that which does and does not relate to voting at a convention. See ante, at 41. Thus, today's decision will increase exponentially the number of preclearance requests, for even the most innocuous changes, that the Attorney General must process within a statutorily limited amount of time. See 42 U.S.C. § 1973c (1988 ed.) (60 days). "[I]t is certainly reasonable to believe that Congress, having placed a strict time limit on the Attorney General's consideration of submissions, also deliberately placed a limit on the number and importance of the submissions themselves. This result was achieved by restricting the reach of §5 to enactments of either the States themselves or their political subdivisions." Sheffield, 435 U. S., at 148 (Stevens, J., dissenting). That the inclusion of political parties under §5 demeans the preclearance regime and so drastically increases its scope substantially undermines the possibility that Congress intended parties to preclear.
Without so much as a nod to the explicit "State or political subdivision" limitation in §5, Justice Stevens substitutes the administrative regulation as the analytical starting point in this case. See ante, at 6. He apparently does so because the Party failed to challenge the regulation and its counsel stated at oral argument that §5 could sometimes encompass political parties. See ante, at 6, 33, n. 32, 36, n. 35. We did not take this case to review the District Court's application of the regulation based on the facts of this case, but to decide whether "[§]5 of the Voting Rights Act of 1965 require[s] preclearance of a political party's decision . . . to impose" a fee on conventiongoers. Juris. Statement i. Consequently, appellants and the Government argued that the Party was covered as a "State" under §5, see infra, n. 7, and the Party maintained that §5 "requires action by a State or political subdivision." Brief for Appellees 29. See also id., at 30 ("A political party is not a subdivision or instrumentality of the government [under Sheffield]"). Justice Stevens and Justice Breyer address the question presented, however, only in the course of dismissing the dissents' arguments, and after they reach their respective conclusions.
Furthermore, the tactical or legal error of a litigant cannot define the meaning of a federal statute. See generally Sibron v. New York, 392 U.S. 40 (1968). Our duty is to read the statute for ourselves. While the regulation may "unambiguously provid[e] that . . . a political party" must preclear, ante, at 6, the statute does nothing of the sort, regardless of any submission by the Party. Accordingly, I would decide this case on the ground that the Republican Party of Virginia is not a "State" in the ordinary sense of the word. Its rules and policies should therefore not be subject to §5. [n.6]
To the limited extent that Justice Stevens and Justice Breyer address the triggering language in §5, they fail to explain adequately how it is that the Party could qualify as a "State or political subdivision" under the Act. By referring to the White Primary cases, however, they reveal the only conceivable basis in law for deeming the acts of the Party to be those of the State: the doctrine of state action, as developed under the Fourteenth and Fifteenth Amendments. [n.7] In attempting to establish the relevance of that constitutional doctrine to this statutory case, more by repetition than analysis, both opinions suggest that the meaning of the statutory term "State" in §5 is necessarily coterminous with the constitutional doctrine of state action. See, ante, at 11, 23-32, 34-35; ante, at 1-3. I cannot agree.
The text of § 5 does not support this constitutional gloss. There is a marked contrast between the language of §5 and other federal statutes that we have read to be coextensive with the constitutional doctrine of state action. Specifically, 42 U.S.C. § 1983 has been accorded a reach equivalent to that of the Fourteenth Amendment. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 934-935 (1982); United States v. Price, 383 U.S. 787, 794, n. 7 (1966). That statute provides a cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State" deprives any citizen of federal constitutional or statutory rights. 42 U.S.C. § 1983 (1982 ed.). Section 1983's coverage reasonably extends beyond official enactments of the State, since it expressly provides for coverage of persons who act under authority of the State. If Congress intended to incorporate state action doctrine into §5, one would expect §5 to read more like §1983. That is, it might require preclearance "whenever a State or political subdivision or any person acting under color of State law" seeks to enact voting changes. [n.8] But §5 does not read like §1983.
The Voting Rights Act does, in fact, contain precisely such language in a different section. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted). Section 11(a) of the Act provides that "[n]o person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of [the Voting Rights Act and supplemental provisions] or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person's vote." 42 U.S.C. § 1973i(a) (1988 ed.) (emphasis added). See also §1973i(b) ("No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote") (emphasis added). These provisions of the Act account for the very possibility that seems to motivate the Court's strained interpretation of §5: that persons acting individually or as part of a group, as opposed to States or political subdivisions through their governmental bodies, will interfere with the right to vote.
I would not, therefore, accept the proposition that the constitutional doctrine of state action defines the breadth of the statutory term "State." Given the clarity of the word "State," together with the facts that Congress has traditionally encompassed the broad category of state action by using the phrase "under color of law," and has done so in other parts of this very Act, it is evident that Congress did not mean to incorporate state action doctrine in §5.
Even indulging the argument that §5's coverage extends to all activity that qualifies as state action for constitutional purposes, the Court's further assumption that the actions of the Party in this case are fairly attributable to the State is irreconcilable with our state action precedents. [n.9]
Justice Stevens and Justice Breyer are correct to suggest that, under the White Primary Cases--most notably Smith v. Allwright, 321 U.S. 649 (1944), and Terry v. Adams, 345 U.S. 461 (1953)--political parties may sometimes be characterized as state actors. Where they err, however, is in failing to recognize that the state action principle of those cases "does not reach to all forms of private political activity." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978). Rather, it "encompasses only state regulated elections or elections conducted by organizations which in practice produce `the uncontested choice of public officials.' " Ibid. (quoting Terry, supra, at 484 (Clark, J., concurring)). Thus, the White Primary Cases do not stand for the categorical rule that political parties are state actors, but only for the proposition that, in limited factual circumstances, a particular political party may be deemed an agent of the State.
This case is not governed by the state action principle enunciated in either Smith or Terry. Unlike the primary in Smith, the Republican Party of Virginia's convention was not a " `state regulated electio[n]' " to which the doctrine of state action extends. Flagg Bros., Inc. v. Brooks, 436 U. S., at 158. As an initial matter, it is important to recognize that Smith is on its face limited to primary elections. That is, Smith requires a sufficient degree of state regulation that "the party which is required to follow these legislative directions [is made] an agency of the State in so far as it determines the participants in a primary election." 321 U. S., at 663 (emphasis added). In this case, the Party played no role in determining the participants in an election-- whether primary, general, or special--but required persons who wished to attend its convention to pay a fee.
But, even assuming that the reasoning of Smith applies to conventions as well as actual elections, there is still insufficient state regulation in this case to find that "the party . . . [is] an agency of the State." Ibid. In Smith, the Party was compelled by statute to hold a primary and was subject to myriad laws governing the primary from start to finish. See id., at 653, n. 6, 662-663. By comparison, the amount and burden of the state regulation in this case pale. Appellants point to only two provisions of the Virginia Code that directly regulate nominating conventions. Section 24.2-510 imposes certain deadlines for the nomination of candidates by methods other than a primary. Va. Code. Ann. §24.2-510 (1993). And once a candidate is selected, §24.2-511 requires that the party chairman certify the candidate to the State Board of Elections. Ibid. While §24.2-509 permits parties to choose their own method of nomination, it is a purely permissive, not a mandatory, provision; the Party is not "required to follow [this] legislative directio[n]." Smith v. Allwright, 321 U. S., at 663. There exists no "statutory system for the selection of party nominees for inclusion on the general election ballot," ibid.; there are only a few relatively minor statutory requirements. In other words, when the Party holds its convention to select a candidate, it is Party, not State, machinery that is put in gear. Cf. United States v. Classic, 313 U.S. 299, 318 (1941). [n.10]
Nor does coverage of the Party in this case "follo[w] directly from . . . Terry." Ante, at 28. The three separate opinions that constituted the majority in that case contain little analysis of the state action question, and there was certainly no theory of state action upon which the majority agreed. See Flagg Bros., Inc. v. Brooks, 436 U. S., at 158, and n. 6. Consequently, the holding in Terry has since been rationalized in light of two unique factual predicates: (1) a candidate selection system that foreordained the winner of the general election; and (2) the participation of the State in the intentional evasion of the Constitution for the purpose of discrimination. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 625 (1991) ("The Jaybird candidate was certain to win the Democratic primary and the Democratic candidate was certain to win the general election"); Mobile v. Bolden, 446 U.S. 55, 64 (1980) (explaining Terry on grounds that "[t]he candidates chosen in the Jaybird primary . . . invariably won in the subsequent Democratic primary and in the general election" and that "there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process"). The nub of Terry was that the Jaybird primary was the de facto general election and that Texas consciously permitted it to serve as such; thus, the exclusion of blacks from that event violated the Fifteenth Amendment.
This case involves neither of the operative premises of Terry. First, there is no hint of state involvement in any purposeful evasion of the Constitution. No one--not the litigants, the Government, or the court below--has so much as suggested that the Party, in concert with the State, held a convention rather than a primary in order to avoid the constitutional ban on race based discrimination. Nor has anyone implied that the Party had any intent to discriminate on the basis of race when it decided to charge a fee to cover the costs of the convention. [n.11] Second, it simply cannot be maintained that exclusion from the Party's 1994 convention was tantamount to exclusion from the general election. The fact that the Party's 1994 nominee for the U. S. Senate lost the general election is proof enough that the modern day Republican Party in Virginia does not have the stranglehold on the political process that the Democratic Party of Texas had in the 1940's. [n.12] In short, this case is a far cry from Terry, and it does not fall within the bounds of state action delineated, albeit none too clearly, by Terry. [n.13]
In any event, subsequent decisions of this Court have "carefully defined" the scope of Smith and Terry. Flagg Bros., Inc. v. Brooks, 436 U. S., at 158. As we have refined our state action jurisprudence, the White Primary Cases have come to stand for a relatively limited principle. When political parties discharge functions "traditionally performed" by and " `exclusively reserved to' " government, their actions are fairly attributable to the State. Ibid. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)). See Edmonson v. Leesville Concrete Co., supra, at 621 (citing Terry as a case in which "the actor is performing a traditional governmental function"); Lugar v. Edmondson Oil Co., 457 U. S., at 939 (citing Terry as illustration of "the `public function' test"). In Terry, the Jaybirds performed the traditional and exclusive state function of conducting what was, in effect, the actual election.
In applying the public function test, "our holdings have made clear that the relevant question is not simply whether a private group is serving a `public function.' " Rendell Baker v. Kohn, 457 U.S. 830, 842 (1982) (citation omitted). Instead, "[w]e have held that the question is whether the function performed has been `traditionally the exclusive prerogative of the State.' " Ibid. As Justice O'Connor explained the White Primary Cases, "the government functions in these cases had one thing in common: exclusivity." Edmonson v. Leesville Concrete Co., 500 U. S., at 640 (O'Connor, J., dissenting). Thus, in order to constitute state action under the public function test, "private conduct must not only comprise something that the government traditionally does, but something that only the government traditionally does." Ibid.
The Party's selection of a candidate at the convention does not satisfy that test. As we stated in Flagg Bros., Inc. v. Brooks, "the Constitution protects private rights of association and advocacy with regard to the election of public officials" and it is only "the conduct of the elections themselves [that] is an exclusively public function." 436 U. S., at 158 (citing Terry). Thus, we have carefully distinguished the "conduct" of an election by the State from the exercise of private political rights within that state created framework. Providing an orderly and fair process for the selection of public officers is a classic exclusive state function. As the Constitution itself evidences, the organization of the electoral process has been carried out by States since the founding: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." U. S. Const., Art. I, § 4, cl. 1.
By contrast, convening the members of a political association in order to select the person who can best represent and advance the group's goals is not, and historically never has been, the province of the State-- much less its exclusive province. The selection of a party candidate is not the type of function, such as eminent domain, that is "traditionally associated with sovereignty." Jackson v. Metropolitan Edison Co., 419 U. S., at 353. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 545 (1987) (holding that United States Olympic Committee is not a state actor because "[n]either the conduct nor the coordination of amateur sports has been a traditional governmental function"); Blum v. Yaretsky, 457 U.S. 991, 1011-1012 (1982) (holding that nursing home is not a state actor in part because provision of nursing home services is not a traditional and exclusive sovereign function); Edmonson v. Leesville Concrete Co., 500 U. S., at 638-641 (O'Connor, J., dissenting) (arguing that exercise of peremptory strikes by litigants in state court is not a government function but a matter of private choice). Though States often limit ballot access to persons who are official party nominees or who meet the requirements for independent candidates, see, e.g., Storer v. Brown, 415 U.S. 724 (1974), no State to my knowledge has ever held a convention in order to designate a political party's nominee for public office. Indeed, it would subvert the very purpose of democracy if the State possessed sole control over the identification of candidates for elective office. I therefore fail to see how the selection of a party's candidate for United States Senator is a public electoral function. Cf. ante, at 6. [n.14]
In asking whether the Party acted under authority of the State in selecting its nominee at the convention, the Court emphasizes that Virginia automatically grants ballot access to the nominees of political parties, as defined by statute. See ante, at 7-10; ante, at 4. It does not follow from that fact, however, that "the Party exercised delegated state power when it certified its nominee for automatic placement on Virginia's general election ballot." Ante, at 6. The formulation of rules for deciding which individuals enjoy sufficient public support to warrant placement on the ballot, and the actual placement of those candidates on the ballot, are indeed part of the traditional power of the States to manage elections. See Burdick v. Takushi, 504 U.S. 428, 433 (1992). But these criteria are established exclusively and definitively by the State of Virginia--not the Party--in the Virginia Code. See Va. Code Ann. §§24.2-101, 24.2-511 (1993) (providing ballot access for certified nominees of organizations of Virginia citizens that receive, in either of the last two statewide general elections, at least 10 percent of the total votes cast). Justice Stevens is flatly wrong when he asserts that political parties in Virginia "are effectively granted the power to enact their own qualifications for placement of candidates on the ballot." Ante, at 9. Also, it is the Commonwealth of Virginia, not the Party itself, that has eliminated the Party's need to present a petition in support of its candidate. Cf. ante, at 9; Va. Code Ann. §24.2-511(D) (1993) ("No further notice of candidacy or petition shall be required of a candidate once the party chairman has certified his name to the State Board [of Elections]"). The Party has no control over the qualifications that determine "who may appear on the ballot." Ante, at 10.
What the Party does determine is something entirely distinct from the rules for ballot access, but which the Court fails to distinguish: the identity of the person who shall be entitled under state law, as the Party's nominee, to placement on the ballot by the State. In making that determination, the Party sets the "qualifications" necessary for the selection of its candidate. Though the Court conflates these two sets of criteria, the Party's standards for choosing its candidate are wholly separate from the State's standards for ballot access, as set forth in §§24.2-101 and 24.2-511 of the Virginia Code. When the Party picks a candidate according to its own partisan criteria, it does not act on behalf of the State. Whatever the reason the Party chooses its nominee, "it is not the government's reason." Edmonson v. Leesville Concrete Co., 500 U. S., at 638 (O'Connor, J., dissenting). In sum, the selection of a party nominee "forms no part of the government's responsibility" in regulating an election. Id., at 639.
To be sure, the Party takes advantage of favorable state law when it certifies its candidate for automatic placement on the ballot. See ante, at 7-9, and n. 13; ante, at 4. Nevertheless, according to our state action cases, that is no basis for treating the Party as the State. The State's conferral of benefits upon an entity--even so great a benefit as monopoly status--is insufficient to convert the entity into a state actor. See Jackson v. Metropolitan Edison, 419 U. S., at 351-352. [n.15] If appellants believe that the State has created an unfair electoral system by granting parties automatic access to the ballot, the proper course of action is to bring suit against the appropriate state official and challenge the ballot access statute itself, see, e.g., Burdick v. Takushi, supra, not to bring a preclearance suit against the Party and contest the registration fee. If the State sought to enact or administer a law limiting ballot access to only one group, as Justice Stevens repeatedly hypothesizes, see, e.g., ante, at 36-37, state action would most likely exist, and that law would be subject to §5 and those provisions of the Constitution that impose restrictions on the States.
As for the point that Virginia allows the Party to choose its method of nomination, that fact does not warrant a finding of state action either. We have made it clear that an organization's "exercise of the choice allowed by state law where the initiative comes from it and not from the State, does not make its action in doing so `state action'." Jackson v. Metropolitan Edison, supra, at 357. Thus, when the Party exercised the choice afforded it by state law and opted to hold a convention, that decision did not amount to state action. The Party did not take the initiative to make that choice in order to serve the public interest; in reality, the selection of a nomination method is an intensely political matter, as recent intra Party disputes over that choice well illustrate. [n.16] Even if, as might be said here, "[t]he government erects the platform" upon which a private group acts, the government "does not thereby become responsible for all that occurs upon it." Edmonson v. Leesville Concrete Co., supra, at 632 (O'Connor, J., dissenting). [n.17]
The basis for today's decision, which subjects a political party to the requirements of §5, can only be state action doctrine. But treating the Party as an agent of the State in this case is not only wrong as a matter of statutory interpretation, it also squarely contravenes our state action precedents. In short, there is no legal justification--statutory, constitutional, or otherwise--for the conclusion that the Party is an entity governed by §5. [n.18]
Assuming arguendo that the Republican Party of Virginia is a "State" within either the ordinary or the constitutional sense of the word, the question remains whether the party has sought to administer a practice or procedure with respect to "voting." Based on the statutory definition of "voting," I conclude that the registration fee is not the type of election related change with which the Act concerns itself.
Section 14 of the Act defines voting as "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to . . . casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office." 42 U.S.C. § 1973l(c)(1) (1988 ed.). There is no mention of conventions. Because §14 specifically enumerates the types of elections covered, but does not include conventions, the most natural (and logical) inference is that Congress did not intend to include voting at conventions within the definition of "voting."
The omission of conventions from the list of elections covered in §14 is especially revealing when compared to and contrasted with other federal election laws. The Federal Election Campaign Act of 1971 defines "election" to mean "(A) a general, special, primary, or runoff election; [and] (B) a convention or caucus of a political party which has authority to nominate a candidate." 86 Stat. 11, as amended, 2 U.S.C. § 431(1) (emphasis added). Similarly, §600 of Title 18 criminalizes the promising of employment in exchange for political support "in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office." 18 U.S.C. § 600 (emphasis added). See also §601 (defining "election" as, inter alia, "a convention or caucus of a political party held to nominate a candidate") (emphasis added). Congress obviously knows how to cover nominating conventions when it wants to. After all, if there is a field in which Congress has expertise, it is elections.
Justice Stevens maintains that the fee relates to "voting" because, even though it was not imposed at one of the three types of elections listed in §14, it diminished the effectiveness of appellants' votes at the general election. See ante, at 17-18. As I explained in Holder v. Hall, 512 U. S. ___ (1994), my view is that "as far as the Act is concerned, an `effective' vote is merely one that has been cast and fairly counted." Id., at ___ (slip op., at 31) (Thomas, J., concurring). Appellants do not contend that they were unable to submit a ballot in the general election or that their votes in that election were not properly registered and counted. I thus would not strain to hold, as does the majority, that appellants' votes at the general election lacked effect simply because their personal favorite for the Republican nomination was not on the ballot as the Party candidate.
Justice Stevens also reasons that party primaries and conventions are functionally indistinguishable. See ante, at 18-19, 28. Similarly, Justice Breyer maintains that the convention in this case "resembles a primary about as closely as one could imagine." Ante, at 4. These assertions may or may not be true as a matter of practical judgment (or imagination). One crucial difference between primaries and conventions is that in the context of the former, the Party often avails itself of a system erected, funded, and managed by the State, whereas in the latter, it generally does not. Consequently, charging the State with responsibility for voting changes that occur in a primary, where there may be actual state involvement, makes more sense than holding the State accountable for changes implemented at a party convention. Though Justice Breyer lists several reasons why the Party's convention was like a primary, see ante, at 4, he fails to mention the critical factor of state involvement.
In any event, the question whether conventions ought to be governed by the Act is, at bottom, a matter of policy. And, as far as I can discern from the face of §14, Congress made no policy determination in favor of regulating conventions under the Act. Though one might think it more sensible to include conventions in §14, "[t]he short answer is that Congress did not write the statute that way." United States v. Naftalin, 441 U.S. 768, 773 (1979). When we examine the legislative lines that Congress has drawn, we generally do not hold Congress to exceedingly rigorous standards of logic. See e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993) (reviewing statute for rational basis under Equal Protection Clause and noting that " `judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted' ") (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)); International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72, 84-85 (1991) (enforcing, in statutory construction case, a distinction based on a "mere technicality" because "Congress could rationally have made such a distinction").
Justice Stevens is right that "we have held that §5 applies to cases like Whitley v. Williams, which involve candidacy requirements and qualifications." Presley v. Etowah County Comm'n, 502 U. S., at 502; see ante, at 19. However, those cases all involved qualifications for candidates running in either primary or general elections that are clearly within the scope of §14. See 502 U. S., at 502. ("In Whitley v. Williams, there were changes in the requirements for independent candidates running in general elections"). See also NAACP v. Hampton County Election Comm'n, 470 U.S. 166 (1985) (change in filing deadline to run for school board in general election); Hadnott v. Amos, 394 U.S. 358 (1969) (change in filing deadline for general election); Dougherty County Bd. of Ed. v. White, 439 U.S. 32 (1978) (rule requiring school board members to take unpaid leave of absence while campaigning for office, where plaintiff ran in primary and general election). The cases holding that changes in the composition of the electorate are covered by §5 likewise involve general elections. See Allen v. State Bd. of Elections, 393 U. S., at 550, 569 (change from district to at large, general election). Thus, we had no occasion in any of these cases to question whether activity that occurs at a nominating convention, as opposed to a primary, special, or general election, falls under the Act's definition of "voting." Rather, the issue in these cases was whether the contested change had a sufficiently "direct relation to, or impact on, voting," Presley v. Etowah County Comm'n, 502 U. S., at 506, so as to constitute a "practice or procedure with respect to voting" subject to preclearance under §5. See, e.g., Allen v. State Bd. of Elections, supra, at 569 (holding that "the enactment in each of these cases constitutes a `voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting' within the meaning of §5"). Regardless of whether Congress has ever "endorsed these broad constructions of §5," ante, at 17-18, they have no bearing on the meaning of §14.
Nor does the reference to the election of party officials bring the convention within the ambit of §14, as Justice Stevens and Justice Breyer argue. See ante, at 20; ante, at 2. Section 14 does refer to "votes cast with respect to candidates for public or party office." 42 U.S.C. § 1973l(c)(1) (1988 ed.). But the Court amputates that phrase from the rest of the sentence, which provides that casting a vote at a "primary, special, or general election" for "candidates . . . for party office" constitutes "voting" for purposes of the Act. See ibid. (voting is "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to . . . casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office"). Under §14, then, voting does extend to casting a ballot for a party officer, but only when that ballot is cast at a primary, special, or general election. Since this is obvious on the face of the statute, I see no need to resort to the legislative history of the Bingham Amendment. Cf. ante, at 21; ante, at 2-3. Though Representative Bingham may have had every intention of covering the activities of political parties under §5, there is no evidence that he succeeded in transforming that intention into law.
Finally, as Justice Stevens notes, §§2 and 5 would appear to be designed to work in tandem. See ante, at 21-22. Nonetheless, there is a patent discrepancy between the broad sweep of §2, which refers to "the political processes leading to nomination or election," and the undeniably narrower definition of voting set forth in §14, which is limited to the context of a "primary, special, or general election." The incongruity appears to be a result of Congress' 1982 amendment of §2 to expand its reach to pre-election political processes, see Pub. L. 97-205, §3, 96 Stat. 134, without making any concomitant amendments to either §5 or §14. As long as §5 contains the term "voting," and §14 in turn defines that word, I think we must adhere to the specific definition provided in §14. We cannot decline to apply that definition according to its terms simply because we think it would be preferable to harmonize §§2 and 5. If the 1982 amendment produced an undesirable inconsistency between §§2 and 5, Congress is free to harmonize them. [n.19]
Were I otherwise willing to disregard the plain meaning of §§5 and 14, there is another factor counseling strongly against the Court's interpretation of the Act. Holding that the Party's convention fee must be precleared by the Government poses serious constitutional problems. Our standard practice is to avoid constructions of a statute that create such difficulties. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). "This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties." Ibid.
Among the constitutional questions raised by this decision are ones relating to freedom of political association. "The First Amendment protects political association as well as political expression." Buckley v. Valeo, 424 U.S. 1, 15 (1976). Political parties, and their supporters, enjoy this constitutional right of political affiliation. Cousins v. Wigoda, 419 U.S. 477, 487 (1975). "[A]t the very heart of the freedom of assembly and association," is "[t]he right of members of a political party to gather in a . . . political convention in order to formulate proposed programs and nominate candidates for political office." Id., at 491 (Rehnquist, J., concurring in judgment). A convention to nominate a party candidate is perhaps the classic forum for individual expression of political views and for association with like minded persons for the purpose of advancing those views.
We need not look beyond this case to "hypothetical," ante, at 42, controversies in order to identify substantial First Amendment concerns. As applied today, §5 burdens the rights of the Party and its members to freedom of political association. The Party has represented in this Court that it decided to charge each delegate a registration fee rather than to fund the convention with contributions from a few major donors, in order to avoid undue influence from a small group of contributors. See Brief for Appellees 45-46. Under our precedents, the Party's choice of how to fund its statewide convention seems to be a constitutionally protected one. "The Party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution." Tashjian v. Republican Party of Conn., 479 U.S. 208, 224 (1986). See also Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124 (1981) ("A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution"). As the Court of Appeals for the District of Columbia Circuit has explained, "a party's choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution . . . . [T]here must be a right not only to form political associations but to organize and direct them in the way that will make them most effective." Ripon Society, Inc. v. National Republican Party, 525F. 2d 567, 585 (1975) (en banc), cert. denied, 424 U.S. 933 (1976) (emphasis deleted). By requiring the Party to seek approval from the Federal Government before it may implement rules regarding the funding of nominating conventions, the Court has burdened the Party's ability to institute the constitutionally protected choice embodied in those rules.
Moreover, if the Attorney General or a federal court were to refuse to preclear the registration fee, the Government would in effect be requiring the Party to include persons who could not, or would not, pay the registration fee for its convention. But, as we have held, "the freedom to associate for the `common advancement of political beliefs,' necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only." Democratic Party of United States v. Wisconsin, 450 U. S., at 122 (citation omitted). See also Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 224 (1989). Section 5, under the Court's novel construction, impinges upon that interest. Furthermore, the Court creates a classic prior restraint on political expression, as Justice Scalia cogently explains. See ante, at 4-6.
Legislative burdens on associational rights are subject to scrutiny under the First Amendment. See Burdick v. Takushi, 504 U. S., at 433-434 (level of scrutiny depends upon severity of the infringement); cf. Eu, supra, at 225; Cousins, 419 U. S., at 489. Severe interference with protected rights of political association "may [only] be sustained if the [government] demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley, 424 U. S., at 25. Though Justice Stevens and Justice Breyer glibly dismiss this constitutional inquiry, see ante, at 42-43; ante, at 5 ("[s]uch questions, we are satisfied, are not so difficult"), it is not equally obvious to me that §5, as interpreted today, would survive a First Amendment challenge.
Justice Stevens is correct that, under the White Primary Cases, First Amendment rights of political association cede to the guarantees of the Fifteenth Amendment in certain circumstances. Ante, at 42. The Court has held that when state approved exclusion from a political group is tantamount to exclusion from the actual election, that exclusion violates the Fifteenth Amendment. See Terry v. Adams, 345 U. S., at 469-470. However, where a person is refused membership in a political organization without any involvement on the part of the State, and membership in the group is not a precondition to participation in the ultimate choice of representatives, there can logically be no state denial of the right to vote. In such a situation, there is no conflict between the First and Fifteenth Amendments.
Exclusion of political parties from the coverage of §5 obviates the foregoing First Amendment problems. Cf. Miller v. Johnson, 515 U. S. ___, ___ (1995) (rejecting possible reading of §5 because it raised constitutional problems). By letting stand a construction of §5 that encompasses political parties, however, the Court begets these weighty First Amendment issues. Ironically, the Court generates these difficulties by contorting, rather than giving the most natural meaning to, the text of §5.
I also disagree with the Court that §10 of the Voting Rights Act contains an implicit cause of action for private suits against States and localities that impose poll taxes upon voters. Section 10 states that:
"[T]he Attorney General is authorized and directed to institute forthwith in the name of the United States such actions, including actions against States or political subdivisions, for declaratory judgment or injunctive relief against the enforcement of any requirement of the payment of a poll tax as a precondition to voting, or substitute therefor enacted after November 1, 1964, as will be necessary to implement the declaration of subsection (a) of this section and the purposes of this section." 42 U.S.C. § 1973h(b) (1988 ed.).
By its very terms, §10 authorizes a single person to sue for relief from poll taxes: the Attorney General. The inescapable inference from this express grant of litigating authority to the Attorney General is that no other person may bring an action under §10. Though Justice Stevens contends that implication of a private cause of action is crucial to the enforcement of voting rights, ante, at 45, §10 itself indicates otherwise. Suits instituted by the Attorney General were evidently all that Congress thought "necessary to implement . . . the purposes of this section." Ibid. Section 10 explicitly entrusts to the Attorney General, and to the Attorney General alone, the duty to seek relief from poll taxes under the Act.
Although Allen v. State Bd. of Elections, 393 U.S. 544 (1969), held that §5 of the Voting Rights Act contains a private right of action, Allen does not require the same result under §10. Section 5 affirmatively proclaims that " `no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, §5].' " Allen, 393 U. S., at 555. It was "[a]nalysis of this language" that "indicate[d] that appellants may seek a declaratory judgment that a new state enactment is governed by §5." Ibid. A private cause of action was thought necessary to effectuate "[t]he guarantee of §5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to §5." Id., at 557. [n.20] See also Cannon v. University of Chicago, 441 U.S. 677, 690 (1979) ("[I]t was statutory language describing the special class to be benefited by §5 . . . that persuaded the Court that private parties within that class were implicitly authorized to seek a declaratory judgment against a covered State").
Unlike §5, §10 creates no statutory privilege in any particular class of persons to be free of poll taxes. The only possible "guarantee" created by §10 is that the Attorney General will challenge the enforcement of poll taxes on behalf of those voters who reside in poll tax jurisdictions. What §10 does not do, however, is actually forbid a State or political subdivision from administering poll taxes. Nor does it declare that no person shall be required to pay a poll tax. Rather, §10 merely provides, as a "declaration of policy" prefacing the authorization for civil suits, that "the constitutional right of citizens to vote is denied or abridged in some areas by the requirement of the payment of a poll tax as a precondition to voting." 42 U.S.C. § 1973h(a) (1988 ed.). It further provides that when a jurisdiction administers a poll tax, the Attorney General may prevent its enforcement by bringing suit in accordance with certain procedural requirements, including a three judge district court and direct appeal to this Court. See §1973h(c). Section 10 creates no ban on the imposition of poll taxes, whereas §5, Allen said, guaranteed that no person would be subject to unapproved voting changes. Thus, §10 confers no rights upon individuals and its remedial scheme is limited to suits by the Attorney General. Cf. ante, at 46-47.
I am unpersuaded by the maxim that Congress is presumed to legislate against the backdrop of our "implied cause of action" jurisprudence. See Cannon v. University of Chicago, supra, at 698-699; ante, at 45. That maxim is relevant to but one of the three factors that were established for determining the existence of private rights of action in Cort v. Ash, 422 U.S. 66 (1975), and that were applied in Cannon. See Cannon v. University of Chicago, supra, at 699 (considering "contemporary legal context" of statute to assess the third Cort factor, whether the legislative history reveals an intent to create a cause of action). Though we may thus look to this presumption for guidance in evaluating the history of a statute's enactment, "what must ultimately be determined is whether Congress intended to create the private remedy asserted." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 (1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979). We do this by "begin[ning] with the language of the statute itself." Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 16. In my view, §10--which authorizes only the Attorney General to sue for relief and creates no enforceable right in any person to be free from poll taxes--precludes the inference that Congress intended the availability of implied causes of action under that section. [n.21]
Finally, the 1975 amendments to the Voting Rights Act do not justify the judicial creation of a private cause of action under §10. See ante, at 47-48. Section 3 is a generalized section of the Act, providing three judge district courts with special authority in adjudicating Voting Rights Act claims. See 42 U.S.C. § 1973a (1988 ed.). As appellants accurately state, §3 "explicitly recognizes that private individuals can sue under the [Act]." Brief for Appellants 41. Section 3 does not, however, identify any of the provisions under which private plaintiffs may sue. The most logical deduction from the inclusion of "aggrieved person" in §1973a is that Congress meant to address those cases brought pursuant to the private right of action that this Court had recognized as of 1975, i.e., suits under §5, as well as any rights of action that we might recognize in the future. Section 14(e), which provides for attorney's fees to "the prevailing party, other than the United States," is likewise a general reference to private rights of action. Like §3, §14(e) fails to address the availability of a private right to sue under §10. §1973l(e) (1988 ed.). [n.22]
At bottom, appellants complain that unless a private cause of action exists under §10, private plaintiffs will be forced to challenge poll taxes by bringing constitutional claims in single judge district courts. This, they contend, "is directly contrary to the special procedures for adjudicating poll tax claims established by Congress in section 10." Brief for Appellants 38. It is appellants' claim, however, that flatly contravenes §10. The only "special procedure" for litigating poll tax challenges that Congress created in §10 is an action by the Attorney General on behalf of the United States.
* * *To conclude, I would decide this controversy on the ground that the Republican Party of Virginia is not a "State or political subdivision" for purposes of §5. This is true whether one invokes the ordinary meaning of the term "State" or even, as the Court erroneously does, the state action theory of our constitutional precedents. Even if the Party were a "State" or a state actor, the registration fee does not relate to "voting," as defined by §14. Because the argument for the applicability of §5 in this case fails at each step, I would not require the Party to preclear its convention registration fee under §5. Nor would I imply a private right of action under §10.
Today, the Court cuts §5 loose from its explicit textual moorings regarding both the types of entities and the kinds of changes that it governs. Justice Breyer, writing for three Members of the Court, does so without attempting to define the limits of §5's applicability to political parties and their practices. See ante, at 4 ("We need not . . . determin[e] when party activities are, in effect, substitutes for state nominating primaries"); ibid. ("Nor need we go further to decide just which party nominating convention practices fall within the scope of the Act"). Indeed, Justice Breyer expends much ink evading inevitable questions about the Court's decision. See ante, at 5-6 ("We go no further in this case because, as the dissents indicate, First Amendment questions about the extent to which the Federal Government, through preclearance procedures, can regulate the workings of a political party convention, are difficult ones, as are those about the limits imposed by the state action cases") (citations omitted). This is not reassuring, and it will not do. Eventually, the Court will be forced to come to grips with the untenable and constitutionally flawed interpretation of §5 that it has wrought in this case. That encounter, which could easily have been averted today, will involve yet another Voting Rights Act conundrum of our own making. [n.23]
When leveled against wholly private partisan organizations with respect to their internal affairs, §5's potential for use as an instrument of political harassment should be obvious to all. I have no doubt that §5 was never intended for such purposes. Rather, that section was aimed at preventing covered States from intentionally and systematically evading the guarantees of the Voting Rights Act by simply recasting their election laws. This suit, along with the ones certain to follow, trivializes that goal. I respectfully dissent.
1 There is thus no colorable argument in this case that the Party is a "political subdivision" within the meaning of §14(c)(2); it is not a geographic territory, such as a "county or parish," within a State. Appellants assert no such claim, apparently in recognition of the weakness of the argument. If the Party falls under §5, it could only be because it is a "State" or state actor, as appellants and the United States maintain. See infra, at 12.
2 Justice Stevens has discovered five instances of such party submissions. See ante, 12, n. 18. Per year, however, at least several thousand preclearance requests are sent to the Attorney General. See, e.g., Annual Report of the Attorney General 161 (1982) ("During the year, over 2,800 submissions involving more than 13,300 voting related changes were submitted to the Attorney General under Section 5"); Annual Report of the Attorney General 131 (1986) ("During the fiscal year 1986, over 3,700 submissions involving more than 20,000 changes were submitted to the Attorney General under Section 5").
3 See Presley v. Etowah County Comm'n, 502 U.S. 491 (1992); Clark v. Roemer, 500 U.S. 646 (1991); Pleasant Grove v. United States, 479 U.S. 462 (1987); McCain v. Lybrand, 465 U.S. 236 (1984); NAACP v. Hampton County Election Comm'n, 470 U.S. 166 (1985); City of Lockhart v. United States, 460 U.S. 125 (1983); Port Arthur v. United States, 459 U.S. 159 (1982); Hathorn v. Lovorn, 457 U.S. 255 (1982); Blanding v. DuBose, 454 U.S. 393 (1982); McDaniel v. Sanchez, 452 U.S. 130 (1981); Rome v. United States, 446 U.S. 156 (1980); Dougherty County Bd. of Ed. v. White, 439 U.S. 32 (1978); Berry v. Doles, 438 U.S. 190 (1978); United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110 (1978); Morris v. Gressette, 432 U.S. 491 (1977); United States v. Board of Supervisors of Warren Cty., 429 U.S. 642 (1977); Beer v. United States, 425 U.S. 130 (1976); Richmond v. United States, 422 U.S. 358 (1975); Connor v. Waller, 421 U.S. 656 (1975); Georgia v. United States, 411 U.S. 526 (1973); Perkins v. Matthews, 400 U.S. 379 (1971); Hadnott v. Amos, 394 U.S. 358 (1969); Allen v. State Bd. of Elections, 393 U.S. 544 (1969). See also Arizona v. Reno, 887 F. Supp. 318 (DDC), app. dism'd, 516 U. S. ___ (1996).
Over the last 30 years, we have entertained only two §5 cases brought against political parties. We vacated one when it became moot on appeal, State Democratic Executive Committee of Alabama v. Hawthorne, 499 U.S. 933 (1991), and summarily affirmed the denial of relief in the other. Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U.S. 809 (1972).
4 Justice Stevens contends that the foregoing discussion is "surprising because [his] explanation of why §5 applies to political parties places no reliance on principles of administrative deference." Ante, at 36. By presupposing that the regulation is a valid interpretation of §5, however, Justice Stevens simply assumes that §5 could cover political parties. Thus, he does not just defer to the Attorney General's reading of §5, but displaces §5 with the regulation. Cf. Presley v. Etowah County Comm'n, 502 U. S., at 508 ("Deference does not mean acquiescence"). For the reasons given above, I would not do the same.
5 Justice Stevens' attempt to distinguish, and even to draw support from, Williams is unpersuasive. See ante, at 14-15. The fact that Virginia grants ballot access to the Party's nominee in this case does not establish state involvement in the nominating convention. In holding its convention, the Party exercised no state delegated power. See infra, at 17-26. Further, Justice Stevens mischaracterizes Williams when he declares that the "only" reason that the District Court did not require preclearance was because no adequate administrative procedures existed; the Williams court noted that the lack of such procedures buttressed its premise that §5 applies only to States and political subdivisions. Civ. Action No. 16286, at 4. Finally, 28 CFR § 51.23(b) (1995), which now provides that party officials may submit rules for preclearance, cannot change the language of §5, which is still limited, as it was at the time Williams was decided, to States and political subdivisions.
6 Justice Stevens rejects this reading of §5 as being "at war with the intent of Congress and with our settled interpretation of the Act." Ante, at 33. First, as explained supra, at 5-6 and n. 3, 7-10, there is no precedent for the application of §5 to nongovernmental units; the issue is anything but "settled." Justice Stevens errs when he states that "[t]he operative test, we have stated repeatedly, is whether a political party exercises power over the electoral process." Ante, at 31. We have never made any such statement, because we have never before addressed the question whether political parties are subject to §5. Second, Justice Stevens cites only legislative history as evidence of Congress' "unambiguously expressed . . . purpose" that §5 should apply to the "candidate selection process." Ante, at 38. Section 5, of course, could apply in the context of the "candidate selection process," if the State itself enacted or sought to administer the contested change. But Justice Stevens points to nothing in §5, or even in that statute's legislative history, that expresses any intent to include political parties within the meaning of "State or political subdivision." Finally, it is perfectly reasonable to suppose that the term "State" has a different meaning in §5 than it does in the Fifteenth Amendment. Cf. ante, at 34-35. This Court has affirmed in other contexts that statutory language does not necessarily mean the same thing as parallel language in the Constitution. For instance, "[a]lthough the language of [28 U.S.C. § 1331 (1982 ed.)] parallels that of the `Arising Under' Clause of Article III, this Court never has held that statutory `arising under' jurisdiction is identical to Art. III `arising under' jurisdiction." Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 494 (1983). Here, the ordinary meaning rule of statutory construction, which governs the interpretation of §5, explains why political parties could be covered under the Fifteenth Amendment, but not under §5: the common sense definition of "State" is very different from the complex doctrine of state action that this Court has developed as a matter of constitutional law.
7 In fact, the Government identified our state action cases under the Fifteenth Amendment as the justification for the Attorney General's regulation on which Justice Stevens bases his judgment. Brief for United States as Amicus Curiae 10-11. Review of the regulation confirms that it is premised upon the notion that the Party's activities can sometimes be treated as those of the State. See 28 CFR § 51.7 (1995) (referring to "public electoral function" carried out by parties and to parties "acting under authority explicitly or implicitly granted by a covered jurisdiction"). Likewise, appellants relied solely on state action theory as their rationale for bringing the Party within §5. See Brief for Appellants 14-20, 24-25.
8 Justice Stevens argues that this example does not by its terms cover political parties. See ante, at 35, n. 34. The criticism is beside the point, however, because the example is not intended to demonstrate how Congress could have covered political parties as such; that, of course, could be easily achieved by inserting "political parties" in the opening clause of §5. Instead, the example is meant to emphasize that there is no textual basis for the conclusion that Congress imported the constitutional doctrine of state action into §5. Because there is no evidence that Congress did so, Justice Stevens, as well as Justice Breyer, is wrong to use state action doctrine as license to read "State" to mean "political party."
9 Although Justice Stevens and Justice Breyer never expressly acknowledge their reliance on state action theory, each finds it necessary to look to that case law for support. See ante, at 11, 23-32, 34-35; ante, at 1-3. Indeed, Justice Stevens' discussion of whether the Party acted under the Commonwealth of Virginia's authority in holding the convention is virtually indistinguishable from state action analysis. See ante, at 6-11.
While Justice Stevens believes that the decision in Smith did not depend at all upon state regulation of primaries, ante, at 11, and n. 17, Smith is by its terms premised upon the existence of a "statutory system." See Smith v. Allwright 321 U.S. 649, 662-664 (1944) (detailing state law relating to primaries and concluding that the "statutory system" in Texas for the selection of party nominees "makes the party which is required to follow these legislative directions an agency of the State"). See also Terry v. Adams, 345 U.S. 461, 462 (1953) ("While no state law directed [the] exclusion [of blacks from the party's primary], our decision [in Smith] pointed out that many party activities were subject to considerable statutory control").
11 It is true, as Justice Stevens states, that potential for discrimination is the prevailing test for preclearance under §5. See ante, at 29-30, and n. 29. But that is a different question from whether the Party's conduct rises to the level of state action under Terry, the issue I address here.
12 Justice Stevens claims that, under United States v. Classic, 313 U.S. 299 (1941), "[v]oting at the nomination stage is protected regardless of whether it `invariably, sometimes, or never determines the ultimate choice of the representative.' " Ante, at 31. Classic did not so hold. Even assuming that Classic applies to conventions as well as primaries, that case merely stated, in dicta, that "where the primary is by law made an integral part of the election machinery," 313 U. S., at 318, the right to participate in a primary does not turn upon the dispositive nature of the primary. Party nominating conventions in Virginia have not been merged by law with the election machinery of the State. See supra, at 17-18. Contrary to what Justice Stevens says, ante, at 32, n. 31, the petition procedure at issue in Moore v. Ogilvie, 394 U.S. 814 (1969), was by law made a part of the state's electoral system: it was expressly mandated by state statute. See id., at 815 (citing Ill. Rev. Stat., c. 46, §10-3 (1967)).
13 In light of Smith and Terry, Justice Breyer concludes that the word "State" does not "automatically place a party's all white evasive maneuvers beyond [§5's] reach." Ante, at 3 (emphasis deleted). That, however, is not this case. As discussed above, there is no basis in fact for inferring that the Party charged the fee as a strategy for producing an " `all white' convention process" or as a method of evading the Constitution. Ibid. And the record in no way suggests that the three law students challenging the fee are black.
14 Contrary to the representation of Justice Stevens, ante, at 6, the Party explicitly denies that it engaged in any public electoral function. See Brief for Appellees 30 ("The Virginia statutes cited by the law students do not show the exercise of public electoral functions . . . by the Party").
15 On Justice Stevens' and Justice Breyer's view of the relationship between automatic ballot placement and state action, many private corporations in Virginia would qualify as state actors. Virginia corporations are, like most corporations, substantially advantaged by various provisions of state law. See, e.g., Va. Code Ann. §§13.1-692.1, 13.1-870.1 (1993) (creating a limitation on liability for corporate officers and directors). I doubt seriously, however, that even the Members of today's majority would hold that when a corporation takes the necessary steps to invoke these statutory benefits, it thereby becomes a state actor; yet this is the logical result of the suggestion that the Party is a state actor because Virginia automatically places its nominee on the ballot. Such a conclusion would run headfirst into our case law, in which we have stated unequivocally that privately owned corporations, absent some symbiotic relationship with the State, are purely private actors. See Jackson v. Metropolitan Edison, 419 U. S., at 357-358; Blum v. Yaretsky, 457 U.S. 991, 1011 (1982).
16 See Editorial Richmond Times, Primarily Primaries, Dispatch, Nov. 28, 1995, p. A-8 (describing contentious debate between supporters of the incumbent Virginia Senator and those of his Republican challenger over nomination methods and noting that "[i]t is only human for sides to favor the means--convention or primary--perceived to give their candidate an edge").
17 With respect to Congress' power to prohibit discrimination in party affairs, see ante, at 37-38, it is enough for purposes of this case to note that it is well established that Congress may not regulate purely private behavior pursuant to its enforcement power under the Fourteenth and Fifteenth Amendments. See James v. Bowman, 190 U.S. 127, 139 (1903) ("[A] statute which purports to punish purely individual action cannot be sustained as an appropriate exercise of the power conferred by the Fifteenth Amendment upon Congress to prevent action by the State through some one or more of its official representatives"); Civil Rights Cases, 109 U.S. 3 (1883).
18 Indeed, Justice Breyer's concurring opinion is founded on little more than sheer disbelief that Congress passed a statute that does not go as far in terms of coverage as he thinks, in light of the history of voting rights, the statute should. See ante, at 2 ("How is it possible that a Congress, knowing this obvious history, would have wanted to enact a `voting rights' law containing a major and obvious loophole . . .? "). We are not free to construe statutes by wondering about what Congress "would have wanted to enact." There are myriad reasons why measures that "a Congress"--I assume Justice Breyer means a majority of the members of that institution--might "wan[t] to enact" never become law. We must look to the extant text of the statute and see what Congress has in fact, and not in theory, enacted.
In contrast to Justice Breyer's imaginary statute, which covers all actors that might discriminate in the electoral process, §5 is in reality limited to States and political subdivisions. Thus, the question in this case is not whether we should "read this Act as excluding all political party activity . . . [and] ope[n] a loophole in the statute," ante, at 1, but whether we should read §5 to include such activity in the first place. If there is any "loophole" in §5 here, it results from the fact that Congress simply did not cover political parties in the preclearance provision. Justice Breyer's argument thus boils down to the curious notion that when Congress passes a statute that covers certain actors, it thereby establishes a "loophole" for all others. Moreover, while Congress was surely aware of the history of discrimination in the political process when it passed the Act, I presume it was also cognizant of the prohibitions of the First Amendment, see infra, at 30-33, as well as the constraints on its legislative powers under the Fifteenth Amendment, not the least of which is the state action requirement. See n. 14, supra. Both of these constitutional limits on Congress' powers are sufficient reason to curb speculation and to think it "possible" (if the lack of textual evidence were not enough) that Congress did not intend to cover political parties under §5.
19 Legislative history is insufficient to bridge this gap in coverage that is apparent on the face of the statutes, as Justice Stevens would have it. See ante, at 22, n. 25. In any case, the legislative history cited by Justice Stevens is wholly nonresponsive to the issue of which types of entities must submit their rules for preclearance under §5. That is, the legislative history discusses certain kinds of changes that must be precleared, without suggesting that the entities that must comply with the preclearance requirement are anything other than States and political subdivisions. The part of the Senate Report cited by Justice Stevens addresses the need to preclear statewide redistricting plans. Reapportionment plans, of course, are usually enacted by state or local legislative bodies. See, e.g., Beer v. United States, 425 U.S. 130 (1976) (reapportionment plan adopted by city council). The passage in the House Report states that a voting practice that is outside the scope of the preclearance provision (either because it was in existence before 1965 or is implemented in a noncovered jurisdiction) may nonetheless be challenged in a lawsuit under §2; hence the distinction between preclearance and litigation. The Report thus supports precisely the opposite proposition for which Justice Stevens cites it: It expressly states that not every action that can be brought under §2 falls within the scope of §5.
20 This language makes clear that the "guarantee" described in Allen was not, as Justice Stevens asserts, "simply its holding that individuals can sue under §5." Ante, at 47, n. 43.
Nor do I think that we should imply a cause of action under §10 simply because we have heard and decided challenges by private plaintiffs under §2. See ante, at 46; ante, at 6. We ought not base our decision in this case on the fact that we have inadvertently, and perhaps incorrectly, allowed private suits to proceed under other sections of the Act.
22 It does not follow from Congress' technical amendment of §10 in 1975, which Justice Breyer takes as an indication "that §10 remained an important civil rights provision," ante, at 6, that we should imply a cause of action thereunder. A statute outlawing a class of voting practices and authorizing the Attorney General of the United States to sue jurisdictions that engage in such practices is surely an "important" provision, even if not privately enforceable.
23 Apart from the preclearance issues that the Court leaves unresolved, the Court's judgment raises additional questions under the Voting Rights Act, since the phrase "State or political subdivision" is used in several other key provisions. For instance, may political parties bring a declaratory judgment action under §5 as an alternative to preclearance? See 42 U.S.C. § 1973c (1988 ed.). May political parties bring a "bailout suit" for exclusion from the category of covered jurisdictions? See id. §1973b(a). Are political parties subject to suit under §2? See id. §1973(a). Can a three judge district court authorize the appointment of federal examiners to monitor a political party's activities during the pendency of, and as part of a final judgment in, a voting rights suit? See id. §1973a(a). Quite apparently, the Court has not stopped to consider the ramifications of its decision.