|City of Mobile v. Bolden
[ Stewart ]
[ Blackmun ]
[ Stevens ]
[ Brennan ]
[ White ]
[ Marshall ]
City of Mobile v. Bolden
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MR. JUSTICE STEWART announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST joined.
The city of Mobile, Ala., has, since 1911, been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile's Negro voters in contravention of federal statutory or constitutional law.
The appellees brought this suit in the Federal District Court for the Southern District of Alabama as a class action on behalf of all Negro citizens of Mobile. [n1] Named as defendants were the city and its three incumbent Commissioners, who are the appellants before this Court. The complaint alleged that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of § 2 of the Voting Rights Act of 1965, [n2] of the Fourteenth Amendment, and of the Fifteenth Amendment. Following a bench trial, the District Court found that the constitutional rights of the appellees had been violated, entered a judgment in their favor, and ordered that the City Commission be disestablished and replaced by a municipal government consisting of a Mayor and a City Council with members elected from single-member districts. 423 F.Supp. 384. [n3] The Court of Appeals affirmed the judgment in its entirety, 571 F.2d 238, agreeing that Mobile's at-large elections operated to discriminate against Negroes in violation of the Fourteenth and Fifteenth Amendments, id. at 245, and finding that the remedy formulated by the District Court was [p59] appropriate. An appeal was taken to this Court, and we noted probable jurisdiction, 439 U.S. 815. The case was originally argued in the 1978 Term, and was reargued in the present Term.
In Alabama, the form of municipal government a city may adopt is governed by state law. Until 1911, cities not covered by specific legislation were limited to governing themselves through a mayor and city council. [n4] In that year, the Alabama Legislature authorized every large municipality to adopt a commission form of government. [n5] Mobile established its City Commission in the same year, and has maintained that basic system of municipal government ever since.
The three Commissioners jointly exercise all legislative, executive, and administrative power in the municipality. They are required after election to designate one of their number as Mayor, a largely ceremonial office, but no formal provision is made for allocating specific executive or administrative duties among the three. [n6] As required by the state law enacted in 1911, each candidate for the Mobile City Commission runs for election in the city at large for a term of four years in one of three numbered posts, and may be elected [p60] only by a majority of the total vote. This is the same basic electoral system that is followed by literally thousands of municipalities and other local governmental units throughout the Nation. [n7]
Although required by general principles of judicial administration to do so, Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105; Ashwander v. TVA, 297 U.S. 288, 347 (Brandeis, J., concurring), neither the District Court nor the Court of Appeals addressed the complaint's statutory claim -- that the Mobile electoral system violates § 2 of the Voting Rights Act of 1965. Even a cursory examination of that claim, however, clearly discloses that it adds nothing to the appellees' complaint.
Section 2 of the Voting Rights Act provides:
No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.
79 Stat. 437, as amended, 42 U.S.C. § 1973. Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision, [n8] it is apparent that the language of § 2 no more than elaborates upon that of the Fifteenth Amendment, [n9] and the sparse legislative history [p61] of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself.
Section 2 was an uncontroversial provision in proposed legislation whose other provisions engendered protracted dispute. The House Report on the bill simply recited that § 2
grants . . . a right to be free from enactment or enforcement of voting qualifications . . . or practices which deny or abridge the right to vote on account of race or color.
H.R.Rep. No. 439, 89th Cong., 1st Sess., 23 (1965). See also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). The view that this section simply restated the prohibitions already contained in the Fifteenth Amendment was expressed without contradiction during the Senate hearings. Senator Dirksen indicated at one point that all States, whether or not covered by the preclearance provisions of § 5 of the proposed legislation, were prohibited from discriminating against Negro voters by § 2, which he termed "almost a rephrasing of the 15th [A]mendment." Attorney General Katzenbach agreed. See Voting Rights: Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 208 (1965).
In view of the section's language and its sparse but clear legislative history, it is evident that this statutory provision adds nothing to the appellees' Fifteenth Amendment claim. We turn, therefore, to a consideration of the validity of the judgment of the Court of Appeals with respect to the Fifteenth Amendment.
The Court's early decisions under the Fifteenth Amendment established that it imposes but one limitation on the powers of the States. It forbids them to discriminate against Negroes in matters having to do with voting. See Ex parte Yarbrough, 110 U.S. 651, 665; Neal v. Delaware, 103 U.S. 370, 389-390; United States v. Cruikshank, 92 U.S. 542, 555-556; United States v. Reese, 92 U.S. 214. The Amendment's [p62] command and effect are wholly negative. "The Fifteenth Amendment does not confer the right of suffrage upon any one," but has
invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.
Id. at 217-218.
Our decisions, moreover, have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. In Guinn v. United States, 238 U.S. 347, this Court struck down a "grandfather" clause in a state constitution exempting from the requirement that voters be literate any person or the descendants of any person who had been entitled to vote before January 1, 1866. It was asserted by way of defense that the provision was immune from successful challenge, since a law could not be found unconstitutional either "by attributing to the legislative authority an occult motive" or
because of conclusions concerning its operation in practical execution and resulting discrimination arising . . . from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote.
Id. at 359. Despite this argument, the Court did not hesitate to hold the grandfather clause unconstitutional, because it was not "possible to discover any basis in reason for the standard thus fixed other than the purpose" to circumvent the Fifteenth Amendment. Id. at 365.
The Court's more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. In Gomillion v. Lightfoot, 364 U.S. 339, the Court held that allegations of a racially motivated gerrymander of municipal boundaries stated a claim under the Fifteenth Amendment. The constitutional infirmity of the state law in that case, according to the allegations of the complaint, was that, in drawing the [p63] municipal boundaries, the legislature was
solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their preexisting municipal vote.
Id. at 341. The Court made clear that, in the absence of such an invidious purpose, a State is constitutionally free to redraw political boundaries in any manner it chooses. Id. at 347. [n10]
In Wright v. Rockefeller, 376 U.S. 52, the Court upheld by like reasoning a state congressional reapportionment statute against claims that district lines had been racially gerrymandered, because the plaintiffs failed to prove that the legislature "was either motivated by racial considerations or in fact drew the districts on racial lines"; or that the statute "was the product of a state contrivance to segregate on the basis of race or place of origin." Id. at 56, 58. [n11] See also Lassiter v. Northampton Election Bd., 360 U.S. 45; Lane v. Wilson, 307 U.S. 268, 275-277.
While other of the Court's Fifteenth Amendment decisions have dealt with different issues, none has questioned the necessity of showing purposeful discrimination in order to show a Fifteenth Amendment violation. The cases of Smith v. Allwright, 321 U.S. 649, and Terry v. Adams, 345 U.S. 461, for [p64] example, dealt with the question whether a State was so involved with racially discriminatory voting practices as to invoke the Amendment's protection. Although their facts differed somewhat, the question in both cases was whether the State was sufficiently implicated in the conduct of racially exclusionary primary elections to make that discrimination an abridgment of the right to vote by a State. Since the Texas Democratic Party primary in Smith v. Allwright was regulated by statute, and only party nominees chosen in a primary were placed on the ballot for the general election, the Court concluded that the state Democratic Party had become the agency of the State, and that the State thereby had "endorse[d], adopt[ed] and enforce[d] the discrimination against Negroes, practiced by a party." 321 U.S. at 664.
Terry v. Adams, supra, posed a more difficult question of state involvement. The primary election challenged in that case was conducted by a county political organization, the Jaybird Association, that was neither authorized nor regulated under state law. The candidates chosen in the Jaybird primary, however, invariably won in the subsequent Democratic primary and in the general election, and the Court found that the Fifteenth Amendment had been violated. Although the several supporting opinions differed in their formulation of this conclusion, there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process.
The appellees have argued in this Court that Smith v. Allwright and Terry v. Adams support the conclusion that the at-large system of elections in Mobile is unconstitutional, reasoning that the effect of racially polarized voting in Mobile is the same as that of a racially exclusionary primary. The only characteristic, however, of the exclusionary primaries that offended the Fifteenth Amendment was that Negroes were not permitted to vote in them. The difficult question was whether the "State ha[d] had a hand in" the patent discrimination [p65] practiced by a nominally private organization. Terry v. Adams, supra at 473 (opinion of Frankfurter, J.).
The answer to the appellees' argument is that, as the District Court expressly found, their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected, and neither Smith v. Allwright nor Terry v. Adams contains any implication to the contrary. That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote "on account of race, color, or previous condition of servitude." Having found that Negroes in Mobile "register and vote without hindrance," the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case.
The Court of Appeals also agreed with the District Court that Mobile's at-large electoral system violates the Equal Protection Clause of the Fourteenth Amendment. There remains for consideration, therefore, the validity of its judgment on that score.
The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multimember constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims, 377 U.S. 533, and its progeny. Rather, the focus in such cases has been on the lack of representation multimember districts afford various elements of the voting population in a system of representative legislative democracy.
Criticism [of multimember districts] is rooted in their winner- [p66] take-all aspects, their tendency to submerge minorities . . . . a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests.
Whitcomb v. Chavis, 403 U.S. 124, 158-159.
Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional per se, e.g., White v. Regester, 412 U.S. 755; Whitcomb v. Chavis, supra; Kilgarlin v. Hill, 386 U.S. 120; Burns v. Richardson, 384 U.S. 73; Fortson v. Dorsey, 379 U.S. 433. [n12] We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose, it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra at 765-766; Whitcomb v. Chavis, 403 U.S. at 149-150. A plaintiff must prove that the disputed plan was "conceived or operated as [a] purposeful devic[e] to further racial . . . discrimination," id. at 149.
This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S. 229; [p67] Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256. The Court explicitly indicated in Washington v. Davis that this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination. Indeed, the Court's opinion in that case viewed Wright v. Rockefeller, 376 U.S. 52, as an apt illustration of the principle that an illicit purpose must be proved before a constitutional violation can be found. The Court said:
The rule is the same in other contexts. Wright v. Rockefeller, 376 U.S. 52 (1964), upheld a New York congressional apportionment statute against claims that district lines had been racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail, because they failed to prove that the New York Legislature "was either motivated by racial considerations or in fact drew the districts on racial lines;" the plaintiffs had not shown that the statute "was the product of a state contrivance to segregate on the basis of race or place of origin." Id. at 56, 58. The dissenters were in agreement that the issue was whether the "boundaries . . . were purposefully drawn on racial lines." Id. at 67.
Washington v. Davis, supra at 240. More recently, in Arlington Heights v. Metropolitan Housing Dev. Corp., supra, the Court again relied on Wright v. Rockefeller to illustrate the principle that "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." 429 U.S. at 265. Although dicta may be drawn from a few of the Court's earlier opinions suggesting that disproportionate effects alone may establish a claim of unconstitutional racial vote dilution, the fact is that such a view is not supported by any decision of [p68] this Court. [n13] More importantly, such a view is not consistent with the meaning of the Equal Protection Clause as it has been understood in a variety of other contexts involving alleged racial discrimination. Washington v. Davis, supra, (employment); Arlington Heights v. Metropolitan Housing Dev. Corp., supra, (zoning); Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 208 (public schools); Akins v. Texas, 325 U.S. 398, 403-404 (jury selection).
In only one case has the Court sustained a claim that multimember legislative districts unconstitutionally diluted the voting strength of a discrete group. That case was White v. Regester. There the Court upheld a constitutional challenge by Negroes and Mexican-Americans to parts of a legislative reapportionment plan adopted by the State of Texas. The plaintiffs alleged that the multimember districts for the two counties in which they resided minimized the effect of their votes in violation of the Fourteenth Amendment, and the Court held that the plaintiffs had been able to
produce evidence to support findings that the political processes leading [p69] to nomination and election were not equally open to participation by the group[s] in question.
412 U.S. at 766, 767. In so holding, the Court relied upon evidence in the record that included a long history of official discrimination against minorities as well as indifference to their needs and interests on the part of white elected officials. The Court also found in each county additional factors that restricted the access of minority groups to the political process. In one county, Negroes effectively were excluded from the process of slating candidates for the Democratic Party, while the plaintiffs in the other county were Mexican-Americans who "suffer[ed] a cultural and language barrier" that made "participation in community processes extremely difficult, particularly . . . with respect to the political life" of the county. Id. at 768 (footnote omitted).
White v. Regester is thus consistent with
the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose,
Washington v. Davis, 426 U.S. at 240. The Court stated the constitutional question in White to be whether the "multimember districts [were] being used invidiously to cancel out or minimize the voting strength of racial groups," 412 U.S. at 765 (emphasis added), strongly indicating that only a purposeful dilution of the plaintiffs' vote would offend the Equal Protection Clause. [n14] [p70] Moreover, much of the evidence on which the Court relied in that case was relevant only for the reason that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact." Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 264-265. Of course, "[t]he impact of the official action -- whether it ‘bears more heavily on one race than another,' Washington v. Davis, supra at 242 -- may provide an important starting point." Arlington Heights v. Metropolitan Housing Dev. Corp., supra at 266. But where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose. See ibid.; Washington v. Davis, supra at 242.
We may assume, for present purposes, that an at-large election of city officials with all the legislative, executive, and administrative power of the municipal government is constitutionally indistinguishable from the election of a few members of a state legislative body in multimember districts -- although this may be a rash assumption. [n15] But even making this assumption, it is clear that the evidence in the present case fell far short of showing that the appellants "conceived or operated [a] purposeful devic[e] to further racial . . . discrimination." Whitcomb v. Chavis, 403 U.S. at 149. [p71]
The District Court assessed the appellees' claims in light of the standard that had been articulated by the Court of Appeals for the Fifth Circuit in Zimmer v.McKeithen, 485 F.2d 1297. That case, coming before Washington v. Davis, 426 U.S. 229, was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause -- that proof of a discriminatory effect is sufficient. See 485 F.2d at 1304-1305, and n. 16. [n16]
In light of the criteria identified in Zimmer, the District Court based its conclusion of unconstitutionality primarily on the fact that no Negro had ever been elected to the City Commission, apparently because of the pervasiveness of racially polarized voting in Mobile. The trial court also found that city officials had not been as responsive to the interests of Negroes as to those of white persons. On the basis of these findings, the court concluded that the political processes in Mobile were not equally open to Negroes, despite its seemingly inconsistent findings that there were no inhibitions against Negroes' becoming candidates, and that, in fact, Negroes had registered and voted without hindrance. 423 F.Supp. at 387. Finally, with little additional discussion, the District Court held that Mobile's at-large electoral system was invidiously discriminating against Negroes in violation of the Equal Protection Clause. [n17] [p72]
In affirming the District Court, the Court of Appeals acknowledged that the Equal Protection Clause of the Fourteenth Amendment reaches only purposeful discrimination, [n18] but held that one way a plaintiff may establish this illicit purpose is by adducing evidence that satisfies the criteria of its decision in Zimmer v. McKeithen, supra. Thus, because the appellees had proved an "aggregate" of the Zimmer factors, the Court of Appeals concluded that a discriminatory purpose [p73] had been proved. That approach, however, is inconsistent with out decisions in Washington v. Davis, supra, and Arlington Heights, supra. Although the presence of the indicia relied on in Zimmer may afford some criteria is not, of itself, sufficient proof of such a purpose. The so-called Zimmer criteria upon which the District Court and the Court of Appeals relied were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case.
First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact, they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court's findings of fact, unquestioned on appeal, make clear that Negroes register and vote in Mobile "without hindrance," and that there are no official obstacles in the way of Negroes who wish to become candidates for election to the Commission. Indeed, it was undisputed that the only active "slating" organization in the city is comprised of Negroes. It may be that Negro candidates have been defeated, but that fact alone does not work a constitutional deprivation. Whitcomb v. Chavis, 403 U.S. at 160; see Arlington Heights, 429 U.S. at 266, n. 15. [n19]
Second, the District Court relied in part on its finding that the persons who were elected to the Commission discriminated against Negroes in municipal employment and in dispensing public services. If that is the case, those discriminated against may be entitled to relief under the Constitution, albeit of a sort quite different from that sought in the present case. The Equal Protection Clause proscribes purposeful discrimination because of race by any unit of state government, whatever [p74] the method of its election. But evidence of discrimination by white officials in Mobile is relevant only as the most tenuous and circumstantial evidence of the constitutional invalidity of the electoral system under which they attained their offices. [n20]
Third, the District Court and the Court of Appeals supported their conclusion by drawing upon the substantial history of official racial discrimination in Alabama. But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question.
Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out. But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester, 412 U.S. 755. They are far from proof that the at-large electoral scheme represents purposeful discrimination against Negro voters. [n21] [p75]
We turn finally to the arguments advanced in Part I of MR. JUSTICE MARSHALL's dissenting opinion. The theory of this dissenting opinion -- a theory much more extreme than that espoused by the District Court or the Court of Appeal, appears to be that every "political group," or at least every such group that is in the minority, has a federal constitutional right to elect candidates in proportion to its numbers. [n22] Moreover, a political group's "right" to have its candidates elected is said to be a "fundamental interest," the infringement of which may be established without proof that a State has acted with the purpose of impairing anybody's access to the political process. This dissenting opinion finds the "right" infringed in the present case because no Negro has been elected to the Mobile City Commission.
Whatever appeal the dissenting opinion's view may have as a matter of political theory, it is not the law. The Equal Protection Clause of the Fourteenth Amendment does not [p76] require proportional representation as an imperative of political organization. The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States.
It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson, 394 U.S. 618, 634, 638; id. at 642-644 (concurring opinion). See also San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 30-32. But plainly "[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws," id. at 33. See Lindsey v. Normet, 405 U.S. 56, 74; Dandridge v. Williams, 397 U.S. 471, 485. Accordingly, where a state law does not impair a right or liberty protected by the Constitution, there is no occasion to depart from "the settled mode of constitutional analysis of legislat[ion] . . . involving questions of economic and social policy," San Antonio Independent School Dist. v. Rodriguez, supra at 33. [n23] MR. JUSTICE MARSHALL's dissenting opinion would discard these fixed principles in favor of a judicial inventiveness that would go "far toward making this Court a ‘super-legislature.'" Shapiro v. Thompson, supra, at 655, 661 (Harlan, J., dissenting). We are not free to do so.
More than 100 years ago, the Court unanimously held that "the Constitution of the United States does not confer the right of suffrage upon anyone. . . ." Minor v. Happersett, 21 Wall. 162, 178. See Lassiter v. Northampton Election Bd., 360 U.S. at 50-51. It is for the States
to determine the conditions under which the right of suffrage may be [p77] exercised . . . , absent, of course, the discrimination which the Constitution condemns,
ibid. It is true, as the dissenting opinion states, that the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters. See Dunn v. Blumstein, 405 U.S. 330, 336; Reynolds v. Sims, 377 U.S. at 576. But this right to equal participation in the electoral process does not protect any "political group," however defined, from electoral defeat. [n24]
The dissenting opinion erroneously discovers the asserted entitlement to group representation within the "one person, one vote" principle of Reynolds v. Sims, supra, and its progeny. [n25] Those cases established that the Equal Protection [p78] Clause guarantees the right of each voter to "have his vote weighted equally with those of all other citizens." 377 U.S. at 576. The Court recognized that a voter's right to "have an equally effective voice" in the election of representatives is impaired where representation is not apportioned substantially on a population basis. In such cases, the votes of persons in more populous districts carry less weight than do those of persons in smaller districts. There can be, of course, no claim that the "one person, one vote" principle has been violated in this case, because the city of Mobile is a unitary electoral district and the Commission elections are conducted at large. It is therefore obvious that nobody's vote has been "diluted" in the sense in which that word was used in the Reynolds case.
The dissenting opinion places an extraordinary interpretation on these decisions, an interpretation not justified by Reynolds v. Sims itself or by any other decision of this Court. It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. [n26] And the Court's decisions hold squarely [p79] that they do not. See United Jewish Organizations v. Carey, 430 U.S. 144, 166-167; id. at 179-180 (opinion concurring in judgment); White v. Regester, 412 U.S. at 765-766; Whitcomb v. Chavis, 403 U.S. at 149-150, 153-154, 156-157.
The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them. Reversing the trial court, this Court said:
The District Court's holding, although, on the facts of this case, limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents [p80] a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system, but who, in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union-oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-member districts to survive analysis under the District Court's view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multimember district systems now widely employed in this country.
Whitcomb v. Chavis, supra, at 156-157 (footnotes omitted).
The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings.
It is so ordered.
1. Approximately 35.4% of the residents of Mobile are Negro.
2. 79 Stat. 437, as amended, 42 U.S.C. § 1973. The complaint also contained claims based on the First and Thirteenth Amendments and on 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) (1976 ed., Supp. II). Those claims have not been pressed in this Court.
3. The District Court has stayed its orders pending disposition of the present appeal.
4. Ala.Code § 11-43 (1975).
5. Act No. 281, 1911 Ala. Acts, p. 330.
6. In 1965, the Alabama Legislature enacted Act No. 823, 1965 Ala.Acts, p. 1539, § 2 of which designated specific administrative tasks to be performed by each Commissioner and provided that the title of Mayor be rotated among the three. After the present lawsuit was commenced, the city of Mobile belatedly submitted Act No. 823 to the Attorney General of the United States under § 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c. The Attorney General objected to the legislation on the ground that the city had not shown that § 2 of the Act would not have the effect of abridging the right of Negroes to vote. No suit has been brought in the District Court for the District of Columbia to seek clearance under § 5 of the Voting Rights Act and, accordingly, § 2 of Act No. 823 is in abeyance.
7. According to the 1979 Municipal Year Book, most municipalities of over 25,000 people conducted at-large elections of their city commissioners or council members as of 1977. Id. at 999. It is reasonable to suppose that an even larger majority of other municipalities did so.
8. Cf. Allen v. State Board of Elections, 393 U.S. 544. But see Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11; Touche Ross & Co. v. Redington, 442 U.S. 560.
9. Section 1 of the Fifteenth Amendment provides:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
10. The Court has repeatedly cited Gomillion v. Lightfoot for the principle that an invidious purpose must be adduced to support a claim of unconstitutionality. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 266; Washington v. Davis, 426 U.S. 229, 240.
11. MR. JUSTICE MARSHALL has elsewhere described the fair import of the Gomillion and Wright cases
In the two Fifteenth Amendment redistricting cases, Wright v. Rockefeller, 376 U.S. 52 (1964), and Gomillion v. Lightfoot, 364 U.S. 339 (1960), the Court suggested that legislative purpose alone is determinative, although language in both cases may be isolated that seems to approve some inquiry into effect insofar as it elucidates purpose.
Beer v. United States, 425 U.S. 130, 148, n. 4 (dissenting opinion).
The Court in the Wright case also rejected claims made under the Equal Protection Clause of the Fourteenth Amendment. See infra at 67.
12. We have made clear, however, that a court, in formulating an apportionment plan as an exercise of its equity powers should, as a general rule, not permit multimember legislative districts.
[S]ingle-member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a "singular combination of unique factors" that justifies a different result. Mahan v. Howell, 410 U.S. 315, 333.
Connor v. Finch, 431 U.S. 407, 415.
13. The dissenting opinion of MR. JUSTICE MARSHALL reads the Court's opinion in Fortson v. Dorsey, 379 U.S. 433, to say that a claim of vote dilution under the Equal Protection Clause could rest on either discriminatory purpose or effect. Post at 108. In fact, the Court explicitly reserved this question and expressed no view concerning it. That case involved solely a claim, which the Court rejected, that a state legislative apportionment statute creating some multimember districts was constitutionally infirm on its face. Although the Court recognized that "designedly or otherwise," multimember districting schemes might, under the circumstances of a particular case, minimize the voting strength of a racial group, an issue as to the constitutionality of such an arrangement "[was] not presented by the record," and "‘our holding ha[d] no bearing on that wholly separate question.'" 379 U.S. at 439.
The phrase "designedly or otherwise," in which this dissenting opinion places so much stock, was repeated, also in dictum, in Burns v. Richardson, 384 U.S. 73, 88. But the constitutional challenge to the multimember constituencies failed in that case because the plaintiffs demonstrated neither discriminatory purpose nor effect. Id. at 88-90, and nn. 15 and 16.
14. In Gaffney v. Cummings, 412 U.S. 735, a case decided the same day as White v. Regester, the Court interpreted both White and the earlier vote dilution cases as turning on the existence of discriminatory purpose:
State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their preexisting municipal vote. Gomillion v. Lightfoot, 364 U.S. 339 (1960). A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed "to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439 (1965). See White v. Regester, post, at 755; Whitcomb v. Chavis, 403 U.S. 124 (1971); Abate v. Mundt, 403 U.S. at 184, n. 2; Burns v. Richardson, 384 U.S. at 88-89.
412 U.S. at 751 (emphasis added).
15. See Wise v. Lipscomb, 437 U.S. 535, 550 (opinion of REHNQUIST, J.). It is noteworthy that a system of at-large city elections in place of elections of city officials by the voters of small geographic wards was universally heralded not many years ago as a praiseworthy and progressive reform of corrupt municipal government. See, e.g., E. Banfield & J. Wilson, City Politics 151 (1963). Cf. M. Seasongood, Local Government in the United States (1933); L. Steffens, The Shame of the Cities (1904).
16. This Court affirmed the judgment of the Court of Appeals in Zimmer v. McKeithen on grounds other than those relied on by that court and explicitly "without approval of the constitutional views expressed by the Court of Appeals." East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 638 (per curiam).
17. The only indication given by the District Court of an inference that there existed an invidious purpose was the following statement:
It is not a long step from the systematic exclusion of blacks from juries, which is itself such an "unequal application of the law . . . as to show intentional discrimination," Akins v. Texas, 325 U.S. 398, 404, . . . to [the] present purpose to dilute the black vote as evidenced in this case. There is a "current" condition of dilution of the black vote resulting from intentional state legislative inaction which is as effective as the intentional state action referred to in Keyes [v. School District No. 1, Denver Colo., 413 U.S. 189].
423 F.Supp. at 398.
What the District Court may have meant by this statement is uncertain. In any event, the analogy to the racially exclusionary jury cases appears mistaken. Those cases typically have involved a consistent pattern of discrete official actions that demonstrated almost to a mathematical certainty that Negroes were being excluded from juries because of their race. See Castaneda v. Partida, 430 U.S. 482, 495-497, and n. 17; Patton v. Mississippi, 332 U.S. 463, 466-467; Pierre v. Louisiana, 306 U.S. 354, 359; Norris v. Alabama, 294 U.S. 587, 591.
If the District Court meant by its statement that the existence of the at-large electoral system was, like the systematic exclusion of Negroes from juries, unexplainable on grounds other than race, its inference is contradicted by the history of the adoption of that system in Mobile. Alternatively, if the District Court meant that the state legislature may be presumed to have "intended" that there would be no Negro Commissioners, simply because that was a foreseeable consequence of at-large voting, it applied an incorrect legal standard.
"Discriminatory purpose" . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.
Personnel Administrator of Mass. v. Feeney, 442 U.S. at 279 (footnotes omitted) .
18. The Court of Appeals expressed the view that the District Court's finding of discrimination in light of the Zimmer criteria was "buttressed" by the fact that the Attorney General had interposed an objection under § 5 of the Voting Rights Act of 1965 to the state statute designating the functions of each Commissioner. 571 F.2d 238, 246 (CA5). See n. 6, supra.
19. There have been only three Negro candidates for the City Commission, all in 1973. According to the District Court, the Negro candidates "were young, inexperienced, and mounted extremely limited campaigns," and received only "modest support from the black community. . . ." 423 F.Supp. at 388.
20. Among the difficulties with the District Court's view of the evidence was its failure to identify the state officials whose intent it considered relevant in assessing the invidiousness of Mobile's system of government. To the extent that the inquiry should properly focus on the state legislature, see n. 21, infra, the actions of unrelated governmental officials would be, of course, of questionable relevance.
21. According to the District Court., voters in the city of Mobile are represented in the state legislature by three state senators, any one of whom can veto proposed local legislation under the existing courtesy rule. Likewise, a majority of Mobile's 11-member House delegation can prevent a local bill from reaching the floor for debate. Unanimous approval of a local measure by the city delegation, on the other hand, virtually assures passage. 423 F.Supp. at 397.
There was evidence in this case that several proposals that would have altered the form of Mobile's municipal government have been defeated in the state legislature, including at least one that would have permitted Mobile to govern itself through a Mayor and City Council with members elected from individual districts within the city. Whether it may be possible ultimately to prove that Mobile's present governmental and electoral system has been retained for a racially discriminatory purpose, we are in no position now to say.
22. The dissenting opinion seeks to disclaim this description of its theory by suggesting that a claim of vote dilution may require, in addition to proof of electoral defeat, some evidence of "historical and social factors" indicating that the group in question is without political influence. Post at 111-112, n. 7, 122-124. Putting to the side the evident fact that these gauzy sociological considerations have no constitutional basis, it remains far from certain that they could, in any principled manner, exclude the claims of any discrete political group that happens, for whatever reason, to elect fewer of its candidates than arithmetic indicates it might. Indeed, the putative limits are bound to prove illusory if the express purpose informing their application would be, as the dissent assumes, to redress the "inequitable distribution of political influence." Post at 122.
23. The presumption of constitutional validity that underlies the settled mode of reviewing legislation disappears, of course, if the law under consideration creates classes that, in a constitutional sense, are inherently "suspect." See McLaughlin v. Florida, 379 U.S. 184; Strauder v. West Virginia, 100 U.S. 303. Cf. Lockport v. Citizens for Community Action, 430 U.S. 259.
24. The basic fallacy in the dissenting opinion's theory is illustrated by analogy to a defendant's right under the Sixth and Fourteenth Amendments to a trial by a jury of his peers in a criminal case. See Duncan v. Louisiana, 391 U.S. 145. That right, expressly conferred by the Constitution, is certainly "fundamental" as that word is used in the dissenting opinion. Moreover, under the Equal Protection Clause, a defendant has a right to require that the State not exclude from the jury members of his race. See Castaneda v. Partida, 430 U.S. at 493. But "[f]airness in selection has never been held to require proportional representation of races upon a jury," Akins v. Texas, 325 U.S. 398, 403; nor has the defendant any "right to demand that members of his race be included," Alexander v. Louisiana, 405 U.S. 625, 628. The absence from a jury of persons belonging to racial or other cognizable groups offends the Constitution only "if it results from purposeful discrimination." Castaneda v. Partida, supra at 493. See Alexander v. Louisiana, supra; see also Washington v. Davis, 426 U.S. at 239-240. Thus, the fact that there is a constitutional right to a system of jury selection that is not purposefully exclusionary does not entail a right to a jury of any particular racial composition. Likewise, the fact that the Equal Protection Clause confers a right to participate in elections on an equal basis with other qualified voters does not entail a right to have one's candidates prevail.
25. The dissenting opinion also relies upon several decisions of this Court that have held constitutionally invalid various voter eligibility requirements: Dunn v. Blumstein, 405 U.S. 330 (length of residence requirement); Evans v. Cornman, 398 U.S. 419 (exclusion of residents of federal property); Kramer v. Union School District, 395 U.S. 621 (property or status requirement); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (poll tax requirement). But there is in this case no attack whatever upon any of the voter eligibility requirements in Mobile. Nor do the cited cases contain implicit support for the position of the dissenting opinion. They stand simply for the proposition that,
if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest.
Kramer v. Union School District, supra at 627. It is difficult to perceive any similarity between the excluded person's right to equal electoral participation in the cited cases and the right asserted by the dissenting opinion in the present case, aside from the fact that they both in some way involve voting.
26. It is difficult to perceive how the implications of the dissenting opinion's theory of group representation could rationally be cabined. Indeed, certain preliminary practical questions immediately come to mind: can only members of a minority of the voting population in a particular municipality be members of a "political group"? How large must a "group" be to be a "political group"? Can any "group" call itself a "political group"? If not, who is to say which "groups" are "political groups"? Can a qualified voter belong to more than one "political group"? Can there be more than one "political group" among white voters (e.g., Irish-American, Italian-American, Polish-American, Jews, Catholics, Protestants)? Can there be more than one "political group" among nonwhite voters? Do the answers to any of these questions depend upon the particular demographic composition of a given city? Upon the total size of its voting population? Upon the size of its governing body? Upon its form of government? Upon its history? Its geographic location? The fact that even these preliminary questions may be largely unanswerable suggests some of the conceptual and practical fallacies in the constitutional theory espoused by the dissenting opinion, putting to one side the total absence of support for that theory in the Constitution itself.