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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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
In 1994, all registered voters in Virginia who were willing to declare their intent to support the Republican Party's nominees for public office at the next election could participate in the nomination of the Party's candidate for the office of United States Senator if they paid either a $35 or $45 registration fee. Appellants contend that the imposition of that fee as a condition precedent to participation in the candidate selection process was a poll tax prohibited by the Voting Rights Act of 1965. The questions we must decide are whether §5 of the Act required preclearance of the Party's decision to exact the fee and whether appellants were permitted to challenge it as a poll tax prohibited by §10.
On December 16, 1993, the Republican Party of Virginia (Party) issued a call for a state convention to be held on June 3, 1994, to nominate the Republican candidate for United States Senator. The call invited all registered voters in Virginia to participate in local mass meetings, canvasses or conventions to be conducted by officials of the Party. Any voter could be certified as a delegate to the state convention by a local political committee upon payment of a registration fee of $35 or $45 depending on the date of certification. Over 14,000 voters paid the fee and took part in the convention.
In response to the call, appellants Bartholomew, Enderson, and Morse sought to become delegates to the convention. As a registered voter in Virginia willing to declare his or her intent to support the Party's nominee, each was eligible to participate upon payment of the registration fee. Bartholomew and Enderson refused to pay the fee and did not become delegates; Morse paid the fee with funds advanced by supporters of the eventual nominee.
On May 2, 1994, appellants filed a complaint in the United States District Court for the Western District of Virginia alleging that the imposition of the registration fee violated §§5 and 10 of the Voting Rights Act, 79 Stat. 439, 442, as amended, 42 U.S.C. §§ 1973c [n.1] and 1973h (1988 ed.), as well as the Equal Protection Clause of the Fourteenth Amendment [n.2] and the Twenty fourth Amendment [n.3] to the Constitution. They sought an injunction preventing the Party from imposing the fee and ordering it to return the fee paid by Morse. As §§5 and 10 require, a three judge District Court was convened to consider the statutory claims. See Morse v. Oliver North for U. S. Senate Comm., Inc., 853 F. Supp. 212 (WD Va. 1994). That court remanded the two constitutional claims to a single judge District Court, [n.4] and, after expedited briefing and argument, granted the Party's motion to dismiss the §5 and §10 claims.
After noting "a general rule" that political parties are subject to §5 to the extent that they are empowered to conduct primary elections, the Court gave two reasons for concluding that the rule did not apply to the selection of delegates to a state nominating convention. First, it read a regulation promulgated by the Attorney General as disavowing §5 coverage of political party activities other than the conduct of primary elections. Second, it relied on our summary affirmance of the District Court's holding in Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), that §5 does not cover a party's decision to change its method of selecting delegates to a national convention. See 409 U.S. 809 (1972). Its dismissal of the §10 claim rested on its view that only the Attorney General has authority to enforce that section of the Act. 853 F. Supp., at 215-217.
We noted probable jurisdiction, 513 U. S. ___ (1995), and now reverse.
In the Voting Rights Act of 1965, Congress enacted a complex scheme of remedies for racial discrimination in voting that were to be applied in areas where such discrimination had been most flagrant. Section 4 of the Act sets forth the formula for identifying the jurisdictions in which such discrimination had occurred, see South Carolina v. Katzenbach, 383 U.S. 301, 317-318 (1966), and §5 prescribes the most stringent of those remedies. It prohibits the enactment or enforcement by any covered jurisdiction of voting qualifications or procedures that differ from those in effect on November 1, 1964, or two later dates, unless they have been precleared by the Attorney General or approved by the United States District Court for the District of Columbia. See Allen v. State Bd. of Elections, 393 U.S. 544, 548-550 (1969). [n.5] Virginia is one of the seven States to which the §4 coverage formula was found applicable on August 7, 1965. [n.6] The entire Commonwealth has been subject to the preclearance obligation of §5 ever since.
It is undisputed that the Republican Party's practice of charging a registration fee as a prerequisite to participation in the process of selecting a candidate for United States Senator was not in effect on November 1, 1964. It is also undisputed that if the candidate had been selected in a primary election, the Party could not have enforced a voting qualification or procedure different from those in effect on November 1, 1964, without first preclearing it under §5. Finally, we understand the Party to agree that if the registration fee had been mandated by state law, or by a state election official, preclearance would have been required.
What is in dispute is whether the coverage of §5 encompasses the Party's voting qualifications and procedures when its nominees are chosen at a convention. In answering that question, we first note that the District Court's decision is not supported either by the Attorney General's regulation or by the narrow holding in the Williams case. We then explain why coverage is mandated by our consistent construction of the text and history of the Act. Finally, we discuss the §10 private cause of action issue.
The Party does not question the validity of the Attorney General's regulation. That regulation unambiguously provides that when a political party makes a change affecting voting, §5 requires preclearance if two conditions are satisfied: the change must relate to "a public electoral function of the party" and the party must be "acting under authority explicitly or implicitly granted by a covered jurisdiction." [n.7] The Party does not deny that the delegate fee is a change that relates to a public electoral function of the Party. It argues, instead, that the regulation did not apply when it selected its nominee for United States Senator at a convention because it was not "acting under authority" granted by Virginia. We disagree. The District Court erred in its application of the regulation, because the Party exercised delegated state power when it certified its nominee for automatic placement on Virginia's general election ballot.
Virginia law creates two separate tracks for access to the ballot, depending on the affiliation of the candidate. An independent candidate for a statewide office must comply with several requirements. The candidate must file a declaration of candidacy with the State Board of Elections. He or she must also file a petition signed by a predetermined number of qualified voters. For elections to the United States Senate, that number is equal to one half of one percent of the registered voters in the Commonwealth, with at least 200 signatures from each of the 11 congressional districts. Va. Code Ann. §24.2-506 (1993). In 1994, the required number of signatures was 14,871. [n.8]
By contrast, the election code provides that the nominees of the two major political parties [n.9] shall automatically appear on the general election ballot, without the need to declare their candidacy or to demonstrate their support with a nominating petition. §24.2-511. Party nominees are listed sequentially on the ballot before independent candidates, all of whom are grouped together in a separate row or column or spaced apart from the former. [n.10] §§24.2-613, 24.2-640. Virginia law authorizes the two parties to determine for themselves how they will select their nominees--by primary, by nominating convention, or by some other method. §24.2-509(A). [n.11] The Republican Party has taken advantage of these options in past elections. Its nominee has sometimes been selected by the Party's State Central Committee, sometimes by statewide convention, and sometimes by primary election. Whatever method is chosen, state law requires the Commonwealth to place the name of the nominee on the general election ballot. [n.12]
In this dual regime, the parties "ac[t] under authority" of Virginia when they decide who will appear on the general election ballot. 28 CFR § 51.7 (1995). It is uncontested that Virginia has sole authority to set the qualifications for ballot access. Pursuant to that authority, the Commonwealth has prescribed stringent criteria for access with which nearly all independent candidates and political organizations must comply. But it reserves two places on its ballot--indeed, the top two positions [n.13] --for the major parties to fill with their nominees, however chosen. Those parties are effectively granted the power to enact their own qualifications for placement of candidates on the ballot, which the Commonwealth ratifies by adopting their nominees. By holding conventions, for example, the Party does not need to assemble thousands of signatures on a petition for its nominee. In some years, as few as 550 nominators have selected the Party's candidate for United States Senate. [n.14] Even in 1994, when the Party convention had its largest attendance to date, fewer nominators were present than would have been necessary to meet the petition requirement. [n.15] In any event, state law permits the Party to allow as many or as few delegates as it sees fit to choose the Party nominee.
The Party is thus delegated the power to determine part of the field of candidates from which the voters must choose. Correspondingly, when Virginia incorporates the Party's selection, it "endorses, adopts and enforces" the delegate qualifications set by the Party for the right to choose that nominee. Smith v. Allwright, 321 U.S. 649, 664 (1944). The major parties have no inherent right to decide who may appear on the ballot. That is a privilege conferred by Virginia law, not natural law. If the Party chooses to avail itself of this delegated power over the electoral process, it necessarily becomes subject to the regulation. [n.16]
In concluding that the regulation applies to the Party, we are guided by the reasoning of Smith v. Allwright, decided more than half a century ago. There, Texas gave automatic ballot access to the nominee of any party that polled a certain number of votes at the preceding general election, and required independent candidates to file nominating petitions. Id., at 653, n. 6, 663. We explained that "recognition of the place of the primary in the electoral scheme," rather than the degree of state control over it, made clear that "state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the State." Id., at 660. The only difference here is that Virginia has not required its political parties to conduct primary elections to nominate their candidates. But the right to choose the method of nomination makes the delegation of authority in this case more expansive, not less, for the Party is granted even greater power over the selection of its nominees. See generally L. Tribe, American Constitutional Law §13-24, p. 1121, and n. 3 (2d ed. 1988); Rotunda, Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda, 53 Texas L. Rev. 935, 953-954 (1975); Developments in the Law--Elections, 88 Harv. L. Rev. 1111, 1159-1163 (1975). By the logic of Smith, therefore, the Party acted under authority of the Commonwealth. [n.17]
It is true that the example set forth in the Attorney General's regulation describes changes in the conduct of primary elections. That example, however, does not purport to define the outer limits of the coverage of §5. Moreover, both in its brief amicus curiae supporting appellants in this case and in its prior implementation of the regulation, the Department of Justice has interpreted it as applying to changes affecting voting at a party convention. [n.18] We are satisfied that the Department's interpretation of its own regulation is correct. See Stinson v. United States, 508 U.S. 36, 45 (1993); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,414 (1945). Accordingly, we conclude that the regulation required preclearance of the Party's delegate filing fee.
The decision in Williams v. Democratic Party of Georgia, upon which the District Court relied in dismissing this complaint, is not to the contrary. The fact that Virginia statutes grant the nominee of the Party a position on the general election ballot graphically distinguishes the two cases. Williams did not concern the selection of nominees for state elective office, but rather a political party's compliance with a rule promulgated by the Democratic National Party governing the selection of delegates to its national convention. According to the District Court's interpretation of Georgia law, the State exercised no control over, and played no part in, the state Party's selection of delegates to the Democratic National Convention. [n.19] Because the Commonwealth delegated no authority to the Party to choose the delegates, the Party did not act under the authority, implicit or explicit, of the Commonwealth.
If anything, the logic of Williams supports application of the preclearance requirement. The District Court stated that it was "convinced that voting rights connected with the delegate election process are the type of rights Congress intended to safeguard" by passage of the Act. Civ. Action No. 16286, at 4. It declined to require the party to preclear changes in its nominating methods only because there were no administrative procedures for submission of such changes at the time of the decision. Id., at 5. Since then, however, the Attorney General has clarified that "an appropriate official of the political party" may submit party rules affecting voting for preclearance, 28 CFR § 51.23(b) (1993), thereby eliminating this one practical obstacle. Other lower courts have subsequently required preclearance of internal party rules, even when those rules do not relate to the conduct of primary elections. [n.20] Indeed, if the rationale of Williams were still valid, §5 would not cover party primaries either, for the party (by hypothesis) would likewise have no means of preclearing changes. But it is firmly established--and the Party does not dispute--that changes affecting primaries carried out by political parties must be precleared. [n.21]
The District Court was therefore incorrect to base its decision on either the Attorney General's regulation or on our summary affirmance in Williams. The Party's activities fall directly within the scope of the regulation. We next conclude, based on the language and structure of the Act, and the historical background which informed the Congress that enacted it, that §5 of its own force covers changes in electoral practices such as the Party's imposition of a filing fee for delegates to its convention.
Section 5 of the Act requires preclearance of changes in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." Section 14 defines the terms "vote" or "voting" to include "all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, 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 and propositions for which votes are received in an election." 42 U.S.C. § 1973l(c)(1) (1988 ed.).
Although a narrow reading of the text of the Voting Rights Act might have confined the coverage of §5 to changes in election practices that limit individual voters' access to the ballot in jurisdictions having authority to register voters, see United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 140-150 (1978) (Stevens, J., dissenting); Holder v. Hall, 512 U. S. ___, ___ (1994) (Thomas, J., concurring in judgment) (slip op., at 2, 25-26), the Court has squarely rejected that construction. Shortly after the statute was passed, the Court thoroughly reviewed its legislative history and found that Congress intended §5 to have "the broadest possible scope" reaching "any state enactment which altered the election law of a covered State in even a minor way." Allen v. State Bd. of Elections, 393 U. S., at 566-567. Similarly, in Sheffield, the Court concluded that "the language of the Act does not require such a crippling interpretation, but rather is susceptible of a reading that will fully implement the congressional objectives." 435 U. S., at 117. We expressly held that "§5, like the constitutional provisions it is designed to implement, 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." Id., at 118. More recently we noted that §5 is "expansive within its sphere of operation" and "comprehends all changes to rules governing voting." Presley v. Etowah County Comm'n, 502 U.S. 491, 501 (1992).
We have consistently construed the Act to require preclearance of any change in procedures or practices that may bear on the "effectiveness" of a vote cast in "any primary, special, or general election." 42 U.S.C. § 1973l(c)(1). Rules concerning candidacy requirements and qualifications, we have held, fall into this category because of their potential to "undermine the effectiveness of voters who wish to elect [particular] candidates." Allen, 393 U. S., at 570; see also Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 40 (1978). Changes in the composition of the electorate that votes for a particular office--that is, situations that raise the specter of vote dilution--also belong to this class because they could "nullify [voters'] ability to elect the candidate of their choice just as would prohibiting some of them from voting." 393 U. S., at 569. This nexus between the changed practice and its impact on voting in the general election has been a recurring theme in our cases interpreting the Act. See Chisom v. Roemer, 501 U.S. 380, 397 (1991) ("Any abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election"). In its reenactments and extensions of the Act, moreover, Congress has endorsed these broad constructions of §5. See, e.g., S. Rep. No. 97-417, pp. 6-7, and n. 8 (1982).
A filing fee for party delegates operates in precisely the same fashion as these covered practices. By limiting the opportunity for voters to participate in the Party's convention, the fee undercuts their influence on the field of candidates whose names will appear on the ballot, and thus weakens the "effectiveness" of their votes cast in the general election itself. As an elementary fact about our Nation's political system, the significance of the nominating convention to the outcome in the general election was recognized as long ago as Justice Pitney's concurrence in Newberry v. United States, 256 U.S. 232 (1921). Joined by Justices Brandeis and Clarke, he wrote: "As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations [by the major political parties] have been made." Id., at 286 (opinion concurring in part). See also United States v. Classic, 313 U.S. 299, 319 (1941) (endorsing the Newberry concurrence). Just like a primary, a convention narrows the field of candidates from a potentially unwieldy number to the serious few who have a realistic chance to win the election. We have held, in fact, that the State's compelling interest in winnowing down the candidates justifies substantial restrictions on access to the ballot. American Party of Texas v. White, 415 U.S. 767, 782, and n. 14 (1974). Virginia, no doubt, would justify its own ballot access rules--including those for the major parties--on just this basis. [n.22]
We have previously recognized that §5 extends to changes affecting nomination processes other than the primary. In Whitley v. Williams, one of the companion cases decided with Allen, this Court affirmed §5 coverage of a scheme that placed new burdens on voters who wished to nominate independent candidates by petition. The Court was unconcerned that the changes did not directly relate to the conduct of a primary, because they had an effect on the general election. See Allen, 393 U. S., at 570. One of those changes was a requirement that each nominator sign the petition personally and state his or her polling precinct and county. See id., at 551. Like the filing fee in this case, that condition made it more difficult for voters to participate in the nomination process, and therefore properly fell within §5's scope. A fee of $45 to cast a vote for the Party nominee is, if anything, a more onerous burden than a mere obligation to include certain public information about oneself next to one's name on a nominating petition. In dissent, Justice Harlan agreed that "the nominating petition is the functional equivalent of the political primary." Id., at 592 (opinion concurring in part and dissenting in part).
Delegate qualifications are in fact more closely tied to the voting process than practices that may cause vote dilution, whose coverage under §5 we have repeatedly upheld. Virginia, like most States, has effectively divided its election into two stages, the first consisting of the selection of party candidates and the second being the general election itself. See United States v. Classic, 313 U. S., at 316. Exclusion from the earlier stage, as two appellants in this case experienced, does not merely curtail their voting power, but abridges their right to vote itself. To the excluded voter who cannot cast a vote for his or her candidate, it is all the same whether the party conducts its nomination by a primary or by a convention open to all party members except those kept out by the filing fee. Each is an "integral part of the election machinery." Id., at 318.
The reference to "party office" in §14, which defines the terms "vote" and "voting" as they appear throughout the Act, reinforces this construction of §5. Section 14 specifically recognizes that the selection of persons for "party office" is one type of action that may determine the effectiveness of a vote in the general election. Delegates to a party convention are party officers. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 32 (1965) ("Thus, for example, an election of delegates to a State party convention would be covered by the act"). The phrase "votes cast with respect to candidates for public or party office" in §14 is broad enough to encompass a variety of methods of voting beyond a formal election. [n.23] Cf. Classic, 313 U. S., at 318. The Party itself recognizes this point, for both in its brief to this Court and in its Plan of Organization, it repeatedly characterizes its own method of selecting these delegates as an-election." [n.24]
The legislative history of §14 supports this interpretation. Representative Bingham proposed addition of the term "party office" to the language of the section for the express purpose of extending coverage of the Act to the nominating activities of political parties. See Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 456-457 (1965) (proposing coverage of "political party meetings, councils, conventions, and referendums which lead to endorsement or selection of candidates who will run in primary or general elections"). Congressional concern that the Act reach the selection of party delegates was not merely speculative. On the floor of the House, Representative Bingham expressed the importance of preventing a reprise of the fiasco of the previous year, 1964, "when the regular Democratic delegation from Mississippi to the Democratic National Convention was chosen through a series of Party caucuses and conventions from which Negroes were excluded." 111 Cong. Rec. 16273 (1965); see also Hearings, supra, at 456 ("The events of 1964 demonstrate the need" to expand §14). As he later explained, the solution that was reached to this problem was "to add to the definition of the word `vote' in section 14(c)(1)." 111 Cong Rec. 16273. The Party's delegates to its 1994 convention were chosen through precisely the same methods Representative Bingham described: mass meetings, conventions, and canvasses. Exempting the Party from the scope of §14 would thus defeat the purpose for which the House and eventually Congress as a whole adopted Representative Bingham's amendment.
The text of §2 also makes apparent the Act's intended coverage of nonprimary nomination methods. Section 2, which bans any "voting qualification or prerequisite" that discriminates on account of race or color, considers a violation to have occurred if "the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [groups protected by the Act] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b) (1988 ed.) (emphasis added). Under the broad sweep of this language, exclusion from a nominating convention would qualify as a violation. Section 2 "adopts the functional view of `political process' " and applies to "any phase of the electoral process." S. Rep. 97-417, p. 30, and n. 120 (1982).
If such practices and procedures fall within the scope of §2, they must also be subject to §5. In recent cases, some Members of this Court have questioned whether §2 is as broad as §5, see Chisom v. Roemer, 501 U. S., at 416-417 (Scalia, J., dissenting); Holder v. Hall, 512 U. S., at ___%___ (Kennedy, J.) (slip op., at 7-10); id., at ___%___ (Thomas, J., concurring in judgment) (slip op., at 41-42), but there has never been any doubt about the converse--that changes in practices within covered jurisdictions that would be potentially objectionable under §2 are also covered under §5. The purpose of preclearance is to prevent all attempts to implement discriminatory voting practices that change the status quo. If §5 were narrower than §2, then a covered jurisdiction would not need to preclear changes in voting practices known to be illegal. "It is unlikely that Congress intended such an anomalous result." Chisom, 501 U. S., at 402. [n.25]
A fair reading of the text of §5 unquestionably supports the conclusion that by imposing its filing fee the Party sought to administer a "voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1968." 42 U.S.C. § 1973c (1988 ed.).
Consideration of the history that led to passage of the Act confirms our construction of §5. The preamble to the statute expressly identifies the "fifteenth amendment" as the constitutional provision the Act was designed to implement. [n.26] Our cases dealing with the applicability of that amendment to the selection of party candidates in States that engaged in the sort of voting discrimination that §5 was designed to remedy are therefore directly relevant. See McCain v. Lybrand, 465 U.S. 236, 246 (1984) (interpreting Act "in light of its prophylactic purpose and the historical experience which it reflects"); Dougherty County Bd. of Ed. v. White, 439 U. S., at 37 (seeking "guidance from the history and purpose of the Act"). In a series of decisions known as the White Primary Cases, this Court applied the Fifteenth and Fourteenth Amendments to strike down a succession of measures by authorities in Texas to exclude minority voters from their nomination processes. These cases demonstrate that electoral practices implemented by political parties have the potential to "den[y] or abridg[e] the right to vote on account of race or color," which §5 prohibits. 42 U.S.C. § 1973c (1988 ed.).
Nixon v. Herndon, 273 U.S. 536 (1927), involved the validity of a Texas statute enacted in 1923 that flatly provided " `in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas,'" id., at 540. It took only a paragraph for Justice Holmes to conclude that it was "unnecessary to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth." Id., at 540-541. Promptly after the announcement of that decision, the Texas Legislature responded to what it regarded as an emergency by replacing the invalid provision with a substitute that authorized the executive committee of every political party to determine "in its own way" who shall be "qualified to vote or otherwise participate in such political party." Nixon v. Condon, 286 U.S. 73, 82 (1932). The State Executive Committee of the Democratic Party adopted a rule that only "white democrats" could participate in the party's primary elections. Pursuant to that rule, Mr. Nixon was again refused a primary ballot and again persuaded this Court that the authors of the discriminatory rule should be "classified as representatives of the State to such an extent and in such a sense that the great restraints of the Constitution set limits to their action." Id., at 89.
The decision in Nixon v. Condon relied on the fact that a state statute authorized the Party's Executive Committee to determine the qualifications of voters. Thereafter the Party implemented the same discriminatory policy without statutory authorization by adopting a resolution at a state convention restricting party membership to "white persons." When it first confronted the issue, the Court held that implementation of that rule was not state action. Grovey v. Townsend, 295 U.S. 45 (1935). A few years later, however, Grovey was overruled and the Court decided that the resolution adopted by the party's state convention constituted state action violative of the Fifteenth Amendment even though it was not expressly authorized by statute. Smith v. Allwright, 321 U.S. 649 (1944). We wrote:
"The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race. This grant to the people of the opportunity for choice is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. Lane v. Wilson, 307 U.S. 268, 275 [(1939)]." Id., at 664.
The same policy of excluding all nonwhite voters from the electoral process was thereafter implemented in certain Texas counties by a private organization known as the Jaybird Democratic Association. It conducted a so called "Jaybird primary" at which white voters selected candidates who thereafter ran in and nearly always won the Democratic Party's primary and the general election. Although the Jaybirds had no official status, received no state funds, and conducted a purely private election, the Court readily concluded that this voluntary association's exclusion of black voters from its primaries on racial grounds was prohibited by the Fifteenth Amendment. Terry v. Adams, 345 U.S. 461 (1953). Citing our earlier cases, Justice Clark tersely noted that an "old pattern in new guise is revealed by the record." Id., at 480 (concurring opinion).
Congress passed the Voting Rights Act of 1964 because it concluded that case by case enforcement of the Fifteenth Amendment, as exemplified by the history of the white primary in Texas, had proved ineffective to stop discriminatory voting practices in certain areas of the country on account of the intransigence of officials who "resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." South Carolina v. Katzenbach, 383 U. S., at 335 (citing H. R. Rep. No. 439, at 10-11; S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965)). The preclearance system of §5 was designed to end this evasion once and for all. By prohibiting officials in covered jurisdictions from implementing any change in voting practices without prior approval from the District Court for the District of Columbia or the Attorney General, it sought to "shift the advantage of time and inertia from the perpetrators of the evil to its victims." South Carolina v. Katzenbach, 383 U. S., at328. [n.27]
The distinction between a primary and a nominating convention is just another variation in electoral practices that §5 was intended to cover. The imposition of a $45 fee on the privilege of participating in the selection of the Party's nominee for the United States Senate is equally a practice or procedure relating to voting whether the selection is made by primary election or by a "convention" in which every voter willing to pay the fee is eligible to cast a vote. A primary election would not cease to be a practice relating to voting if the Party imposed such a high fee that only 14,000 voters cast ballots; nor should a "convention" performing the same electoral function as a primary avoid coverage because fewer voters participate in the process than normally vote in a primary. As was true in Sheffield, "the District Court's interpretation of the Act . . . makes §5 coverage depend upon a factor completely irrelevant to the Act's purposes, and thereby permits precisely the kind of circumvention of congressional policy that §5 was designed to prevent." 435 U. S., at 117. It would undermine the Act to permit " `[s]uch a variation in the result from so slight a change in form.' " Terry v. Adams, 345 U. S., at 465, n. 1 (quoting Smith v. Allwright, 321 U. S., at 661).
Section 5 coverage of nominating conventions follows directly from our decision in Terry. Although called a "primary," the Jaybird election was the equivalent of the Party's nominating convention, for it did not involve the State's electoral apparatus in even the slightest way--neither to supply election officials, nor ballots, nor polling places. See 345 U. S., at 471 (opinion of Frankfurter, J.). In fact, the Jaybirds went far beyond the Party in immunizing their nomination process from the State's control. The Jaybird nominee did not receive any form of automatic ballot access. He filed individually as a candidate in the Democratic primary, paid the filing fee, and complied with all requirements to which other candidates were subject. Id., at 486-487 (Minton, J., dissenting). No mention of the nominee's Jaybird affiliation was ever made, either on the primary or on the general election ballot. Those elections, moreover, were open to any candidate who was able to meet the filing requirements, and to black as well as white voters. If the Jaybirds' nominating process violated the Fifteenth Amendment because black voters were not permitted to participate, despite the entirely voluntary nature of the Jaybird association, then §5--which requires preclearance of all practices with the potential to discriminate--must cover the Party's exclusion of voters from its convention. [n.28]
Appellees nevertheless assert that Terry, like the other White Primary Cases, has no bearing on the proper interpretation of the Voting Rights Act. They offer three reasons for that contention: first, that their convention did not operate in a racially discriminatory manner, Brief for Appellees 37; second, that the 89th Congress did not intend to legislate to the "outer limit" of the Fifteenth Amendment, ibid.; and third, that present day Virginia is not a one party Commonwealth, unlike Texas after Reconstruction, id., at 36. None of these reasons is persuasive.
First, while it is true that the case before us today does not involve any charge of racial discrimination in voting, the decision whether discrimination has occurred or was intended to occur, as we have explained on many occasions, is for the Attorney General or the District Court for the District of Columbia to make in the first instance. NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 181 (1985); McCain v. Lybrand, 465 U. S., at 250; Dougherty County Bd. of Ed. v. White, 439 U. S., at 42; Georgia v. United States, 411 U.S. 526, 534 (1973); Perkins v. Matthews, 400 U.S. 379, 383-385 (1971); Allen v. State Bd. of Elections, 393 U. S., at 570. The critical question for us, as for the District Court below, is whether "the challenged alteration has the potential for discrimination." Hampton County Election Comm'n, 470 U. S., at 181 (emphasis in original). It is not contested that the Party's filing fee had that potential. [n.29]
The second argument misconceives the purpose of the preclearance system and the nature of the Act as a whole. Again, the very preamble of the Act states that its purpose is to enforce the Fifteenth Amendment. 79 Stat. 437. Section 5 "is a means of assuring in advance the absence of all electoral illegality, not only that which violates the Voting Rights Act but that which violates the Constitution as well." Chisom, 501 U. S., at 416 (Scalia, J., dissenting) (emphasis added). It is beyond question, therefore, that the Act encompassed the discriminatory practices struck down in Terry and Smith, which this Court had found violative of the same constitutional guarantees. Not only were they the leading cases securing the right to vote against racial discrimination at the time of enactment, but Congress passed the Act to facilitate the enforcement effort they embodied. It strains credulity to suppose that despite Congress' professed impatience with the "case by case" method of enforcing voting rights, it did not mean to cover the cases that capped the struggle to end the white primary. [n.30]
The final argument fares no better. We have expressly rejected the contention that the right to vote depends on the success rate of the candidates one endorses. Voting at the nomination stage is protected regardless of whether it "invariably, sometimes, or never determines the ultimate choice of the representative." United States v. Classic, 313 U. S., at 318. The operative test, we have stated repeatedly, is whether a political party exercises power over the electoral process. See United States v. Sheffield Bd. of Comm'rs, 435 U. S., at 122 ("§5 has to apply to all entities exercising control over the electoral processes within the covered States or subdivisions"); Dougherty County Bd. of Ed. v. White, 439 U. S., at 44-45 (§5 coverage depends only on the "impact of a change on the elective process"); Terry, 345 U. S., at 481 ("[A]ny `part of the machinery for choosing officials' becomes subject to the Constitution's restraints") (quoting Smith v. Allwright, 321 U. S., at 664). That situation may arise in two party States just as in one party States. Indeed, the Terry concurrence summarized Smith as holding that "the Democratic Party of itself, and perforce any other political party, is prohibited by [the Fifteenth] Amendment from conducting a racially discriminatory primary election." Terry, 345 U. S., at 481 (Clark, J., concurring) (emphasis added). See also Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (holding that the use of nomination petitions by independent candidates is a procedure that "must pass muster against the charges of discrimination or of abridgment of the right to vote"); Classic, 313 U. S., at 318. [n.31] The contrary position would make little sense. On appellees' theory, one political party could not exclude blacks from the selection of its nominee, however it chose that individual, but two parties each independently could.
In any event, the controlling factor for our construction of §5 is Congress' intent. It is apparent from the legislative history that Congress did not mean to limit §5 to political parties whose nominating procedures "foreordained" the results of the general election, see post, at 18 (Thomas, J., dissenting). The impetus behind the addition of the term "party office" to §14 was the exclusion of blacks from the Mississippi delegation to the National Democratic Convention in 1964. See supra, at 20-21. The activities of those delegates did not settle the result of the presidential race; Republican candidates won the general election in 1952 and 1956, and from 1968 until 1992, excluding 1976. Nevertheless, Congress insisted that the selection of those delegates must be open to all voters, black and white.
The imposition by an established political party--that is to say, a party authorized by state law to determine the method of selecting its candidates for elective office and also authorized to have those candidates' names automatically appear atop the general election ballot--of a new prerequisite to voting for the party's nominees is subject to §5's preclearance requirement.
Justice Kennedy and Justice Thomas reject our construction of §5 for a number of reasons, none of which is convincing. They rely primarily on the argument that, under a literal reading of the statutory text, a political party is not a "State or political subdivision" within the meaning of §5 because it is not a unit of government. See post, at 1-26 (Thomas, J.); post, at 2-3 (Kennedy, J.). The radicalism of this position should not be underestimated. It entirely rejects the distinction between primary elections and conventions that is the centerpiece of the Party's argument. On this view, even if a political party flagrantly discriminated in the selection of candidates whose names would appear on the primary election ballot or in the registration of voters in a primary election, it would not fall within the coverage of §5. Unsurprisingly, neither the District Court nor the Party advanced this extreme argument, for it is plainly at war with the intent of Congress and with our settled interpretation of the Act. [n.32]
Almost two decades ago we held in United States v. Sheffield Bd. of Comm'rs that "§5, like the constitutional provisions it is designed to implement, applies to all entities having any power over any aspect of the electoral process within designated jurisdictions." 435 U. S., at 118 (emphasis added). We understood the phrase "State or political subdivision" to have a "territorial reach" that embraced "actions that are not formally those of the State." Id., at 127. The Court even invoked Terry to make its point. Ibid. Justice Thomas' efforts to confine Sheffield and our subsequent decision in Dougherty do not make sense of those cases. Dougherty held that a county school board qualifies as a "State or political subdivision" even though it is clearly neither "one of the 50 constituent States of the Union," post, at 2, nor "a political subdivision" of any such State in a literal sense or as that term is defined in the statute itself. [n.33] Indeed, a major political party has far more power over the electoral process than a school board, which we conceded has "no nominal electoral functions." Dougherty, 439 U. S., at 44.
Besides the fact that it contravenes our precedents, this argument fails at the purely textual level. The Voting Rights Act uses the same word as the FifteenthAmendment--"State"--to define the authorities bound to honor the right to vote. Long before Congress passed the Voting Rights Act, we had repeatedly held that the word "State" in the Fifteenth Amendment encompassed political parties. See Smith v. Allwright; Terry v. Adams. How one can simultaneously concede that "State" reaches political parties under the Fifteenth Amendment, yet argue that it "plainly" excludes all such parties in §5, is beyond our understanding. Imposing different constructions on the same word is especially perverse in light of the fact that the Act--as it states on its face-- was passed to enforce that very Amendment. See United States v. CIO, 335 U.S. 106, 112 (1948) ("There is no better key to a difficult problem of statutory construction than the law from which the challenged statute emerged"). Speculations about language that might have more clearly reached political parties are beside the point. It would be a mischievous and unwise rule that Congress cannot rely on our construction of constitutional language when it seeks to exercise its enforcement power pursuant to the same provisions. [n.34]
Justice Thomas makes two other arguments. First, he contends that we should not defer to the Attorney General's regulation when construing the coverage of §5. See post, at 6. The argument is surprising because our explanation of why §5 applies to political parties places no reliance on principles of administrative deference. It is nevertheless interesting to note that the regulation has been endorsed by three successive administrations. [n.35]
Second, relying principally on Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), and Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978), Justice Thomas argues that a major political party is not a "state actor" unless its nominees are virtually certain to win the general election. See post, at 13-26. Thus, the Party would be a state actor if Virginia allowed only its candidates' names to appear on the ballot, but if the privilege of ballot access (or a preferred position) is reserved to two parties, neither is performing a public function when it selects its nominees. Given Justice Thomas' reliance on cases construing the reach of the Fourteenth Amendment, the argument seems to challenge both the constitutional power of Congress to prohibit discrimination in the Party's selection of its nominees for federal office and our construction of the statute.
To the extent the argument addresses the constitutionality of the Act, it is wholly unconvincing. Jackson held that a private utility did not act "under color of any statute . . . of any State" within the meaning of 42 U.S.C. § 1983 when it terminated a customer's electric service. Flagg Bros. held that a warehouseman did not violate §1983 when it sold goods that were entrusted to it for storage. In both cases, this Court concluded that the defendants were not acting under authority explicitly or implicitly delegated by the State when they carried out the challenged actions. In this case, however, as we have already explained, supra, at 6-12, the Party acted under the authority conferred by the Virginia election code. It was the Commonwealth of Virginia--indeed, only Virginia--that had the exclusive power to reserve one of the two special ballot positions for the Party. [n.36] Moreover, unlike cases such as Jackson and Flagg Bros., this is a case in which Congress has exercised the enforcement power expressly conferred to it by §2 of the Fifteenth Amendment. That power unquestionably embraces the authority to prohibit a reincarnation of the white primaries, whether they limit the field of viable candidates to just one as in Terry, or to just two as would be permissible under Justice Thomas' construction of the Act.
To the extent the argument addresses the coverage of the Act, it is equally unconvincing. As we have already explained, the legislative history of the Act makes it perfectly clear that Congress did not intend to limit the application of §5 to nominating procedures that "foreordained" the results of the general election. After the statute was enacted, the majority opinions in Jackson and Flagg Bros. included language that may limit the reach of the constitutional holdings in the White Primary Cases. Those later opinions, however, shed no light on the intent of the Congress that had already enacted the Voting Rights Act and unambiguously expressed a purpose to have it apply to the candidate selection process. While Justice Thomas would narrowly confine the coverage of the Act to practices that prevent a voter at a general election from casting a ballot and having it counted, see post, at 28-29 (citing the concurrence in Holder v. Hall, 512 U. S. ___ (1994)), we have no doubt that Congress intended to prohibit the dominant political parties from engaging in discriminatory practices in primary elections as well as conventions of the character involved in this case.
In his separate dissent, Justice Kennedy accuses us of adopting a "blanket rule" that all political parties must preclear all of their "internal procedures." See post, at 3, 5. That characterization is quite inaccurate. We hold that political parties are covered under §5 only in certain limited circumstances: here, only insofar as the Party exercises delegated power over the electoral process when it charges a fee for the right to vote for its candidates. It is Justice Kennedy who proposes the "blanket rule" that political parties are never covered under the Act, no matter what functions they perform and no matter what authority the State grants them. As we have explained, on that construction even situations involving blatant discrimination by political parties of the kind not seen since the White Primary Cases would fail to trigger the preclearance requirement.
Justice Kennedy downplays the significance of this drastic limitation by arguing that voters who face electoral discrimination could sue under the Fifteenth Amendment. But lawsuits are no substitute for the preclearance requirement; if they were, §5 would be superfluous for governmental units, too. As we have explained, the fundamental purpose of the preclearance system was to "shift the advantage of time and inertia from the perpetrators of the evil to its victims," South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966), by declaring all changes in voting rules void until they are cleared by the Attorney General or by the District Court for the District of Columbia. Justice Kennedy's construction would reimpose the very burden §5 was designed to relieve--the necessity of relying on "case by case litigation" to protect the right to vote. Ibid.
Justice Kennedy argues that this would be a "much different" case if the State "restructured its election laws in order to allow political parties the opportunity to practice unlawful discrimination in the nominating process." Post, at 5-6. On his view, however, without any restructuring at all, the Party could now take advantage of Virginia's present election laws to perform the same discriminatory acts. It is simply inaccurate, moreover, to claim that the State had undertaken such legislative efforts in each of the White Primary Cases. The Jaybirds in Terry began discriminating against minority voters as early as 1889, and, as we have explained, they operated entirely outside the framework of Texas' electoral laws. Finally, it is highly counterintuitive to rely on cases such as Smith and Terry for the proposition that voters affected by discrimination should sue the State rather than the political party that carries it out, for those cases were actions against parties, not the State.
What Justice Kennedy apparently finds most objectionable in our decision is the idea that political parties must seek preclearance from the Attorney General of the United States, because she is a "political officer," post, at 5. Pursuant to §5, the Attorney General is entrusted with the statutory duty of determining whether submitted changes have the purpose or will have the effect to discriminate. The suggestion implicit in Justice Kennedy's opinion, that we should avoid our construction of §5 because the Attorney General might subvert her legal responsibility in order to harass a political party, is quite extraordinary and unsupported by even a shred of evidence. In any event, any political party distrustful of the Attorney General may seek preclearance under §5 from the District Court for the District of Columbia.
Appellees advance two practical objections to our interpretation of §5: that it will create an administrative nightmare for political parties as well as the Department of Justice by requiring preclearance of a multitude of minor changes in party practices; and that it threatens to abridge associational rights protected by the First Amendment. Each of these objections merits a response.
With respect to the first, it is important to emphasize the limitations spelled out in the Attorney General's regulation. To be subject to preclearance a change must be one "affecting voting." Examples of changes that are not covered include "changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms." 28 CFR § 51.7 (1995). The line between changes that are covered and those that are not may be difficult to articulate in the abstract, but given the fact that the Regulation has been in effect since 1981 and does not appear to have imposed any unmanageable burdens on covered jurisdictions, it seems likely that the administrative concerns described by the Party are more theoretical than practical. [n.37] Indeed, past cases in which we were required to construe the Act evoked similar protestations that the advocated construction would prove administratively unworkable. See Dougherty County Bd. of Ed. v. White, 439 U. S., at 54 (Powell, J., dissenting); United States v. Sheffield Bd. of Comm'rs, 435 U. S., at 147-148 (Stevens, J., dissenting). Those fears were not borne out, and we think it no more likely that these will either.
With respect to the second argument, we wholeheartedly agree with appellees that the right of association of members of a political party "is a basic constitutional freedom" and that "governmental action that may have the effect of curtailing freedom to associate is subject to the closest scrutiny." Brief for Appellees 25 (citing Buckley v. Valeo, 424 U.S. 1 (1976), and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)). Such scrutiny, however, could not justify a major political party's decision to exclude eligible voters from the candidate selection process because of their race; the Fifteenth Amendment and our cases construing its application to political parties foreclose such a possibility. See Smith v. Allwright, 321 U. S., at 657 (rejecting argument that Democratic Party of Texas, as a private voluntary association, could exclude black voters from its primary); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 232 (1989) (justifying legislative "intervention" in internal party affairs where "necessary to prevent the derogation of the civil rights of party adherents") (citing Smith).
Moreover, appellees have not argued that the registration fee at issue in this case--which is challenged because it curtails the freedom of association of eligible voters arguably in conflict with the interests protected by the Twenty fourth Amendment--is itself protected by the First Amendment. Rather, they have suggested that hypothetical cases unrelated to the facts of this case might implicate First Amendment concerns that would foreclose application of the preclearance requirement. It is sufficient for us now to respond that we find no constitutional impediment to enforcing §5 in the case before us. [n.38] We leave consideration of hypothetical concerns for another day. [n.39]
The District Court dismissed appellants' claim under §10 of the Act because that section only authorizes enforcement proceedings brought by the Attorney General and does not expressly mention private actions. [n.40] While that ruling might have been correct if the Voting Rights Act had been enacted recently, it fails to give effect to our cases holding that our evaluation of congressional action "must take into account its contemporary legal context." Cannon v. University of Chicago, 441 U.S. 677, 698-699 (1979); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381 (1982).
Our holding in Cannon, that Title IX of the Education Amendments of 1972 created a private right of action for victims of discrimination in education, relied heavily on the fact that during the 1960's the Court had consistently found such remedies notwithstanding the absence of an express direction from Congress. 441 U. S., at 698; see also id., at 718 (Rehnquist, J., concurring). Indeed, Cannon cited and relied on our earlier decision in Allen v. State Bd. of Elections, 393 U.S. 544 (1969), holding that private parties may enforce §5 of the Voting Rights Act, to show that Congress acted against a "backdrop" of decisions in which implied causes of action were regularly found. See 441 U. S., at 698, and nn. 22-23. The Voting Rights Act itself was passed one year after this Court's decision in J. I. Case Co. v. Borak, 377 U.S. 426 (1964), which applied a highly liberal standard for finding private remedies.
In Allen we made two observations about §5 that apply as forcefully to §10. We noted that "achievement of the Act's laudable goal could be severely hampered. . . if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General." 393 U. S., at 556. The same is surely true of §10. [n.41] Second, we attached significance to the fact that the Attorney General had urged us to find that private litigants may enforce the Act. Id., at 557, n. 23. The United States takes the same position in this case. See Brief for United States as Amicus Curiae 25-27. [n.42]
Congress has not only ratified Allen's construction of §5 in subsequent reenactments, see H. R. Rep. No. 91-397, p. 8 (1970), but extended its logic to other provisions of the Act. Although §2, like §5, provides no right to sue on its face, "the existence of the private right of action under Section 2 . . . has been clearly intended by Congress since 1965." S. Rep. No. 97-417, p. 30 (1982) (citing Allen); see also H. R. Rep. No. 97-227, p. 32 (1981). We, in turn, have entertained cases brought by private litigants to enforce §2. See, e.g., Chisom v. Roemer, 501 U.S. 380 (1991); Johnson v. De Grandy, 512 U. S. ___ (1994). It would be anomalous, to say the least, to hold that both §2 and §5 are enforceable by private action but §10 is not, when all lack the same express authorizing language.
Appellees argue that while §5 creates substantive rights, §10 merely directs the Attorney General to bring certain types of enforcement actions. Brief for Appellees 42-43. Exactly the same argument was made as to §5 in Allen. But we held there that it was "unnecessary to reach the question" whether §5 created new rights or only gave plaintiffs new remedies to enforce existing rights, for "[h]owever the Act is viewed, the inquiry remains whether the right or remedy has been conferred upon the private litigant." [n.43] 393 U. S., at 556, n. 20. Even if it mattered whether §10 created rights or remedies, the other provisions of the Act indicate that the antipoll tax provision established a right to vote without paying a fee. [n.44]
Furthermore, when Congress reenacted and extended the life of the Voting Rights Act in 1975, it recognized that private rights of action were equally available under §10. Section 3, for example, originally provided for special procedures in any action brought "under any statute to enforce the guarantees of the fifteenth amendment" by the Attorney General. See 79 Stat. 437. In 1975, Congress amended that section to cover actions brought by "the Attorney General or an aggrieved person." 42 U.S.C. § 1973a (1988 ed.) (emphasis added). The Senate Report explained that the purpose of the change was to provide the same remedies to private parties as had formerly been available to the Attorney General alone. See S. Rep. No. 94-295, pp. 39-40 (1975). [n.45] Since §10 is, by its terms, a statute designed for enforcement of the guarantees of the Fourteenth and Fifteenth Amendments, see 42 U.S.C. § 1973h(b) (1988 ed.), Congress must have intended it to provide private remedies.
The same logic applies to §14(e), added in 1975, which allows attorney fees to be granted to "the prevailing party, other than the United States," in any action "to enforce the voting guarantees of the fourteenth or fifteenth amendment." 42 U.S.C. § 1973l(e) (1988 ed.) (emphasis added). Obviously, a private litigant is not the United States, and the Attorney General does not collect attorney's fees. [n.46] Both this section and §3 thus recognize the existence of a private right of action under §10. [n.47]
Last, appellees argue that §10 does not apply to the Party's nominating convention because a delegate registration fee is not a poll tax. This argument addresses the merits rather than the right to sue. Without reaching the merits, the District Court dismissed appellants' claim because it held there was no private cause of action under §10. Since we hold that this conclusion is incorrect, we postpone any consideration of the merits until after they have been addressed by the District Court. [n.48]
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 As originally enacted, §5 provided:
"Sec. 5. Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4(a) are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court." 79 Stat. 437.
2 "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14.
3 "Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
"Section 2. The Congress shall have power to enforce this article by appropriate legislation." U. S. Const., Amdt. 24.
4 A separate statutory claim alleging that the loan to appellant Morse violated §11(c) of the Act, 42 U.S.C. § 1973i(c) (1988 ed.), was also remanded to the single judge District Court. Neither that claim nor either of the constitutional claims is before us.
5 In order to obtain preclearance, the covered jurisdiction must demonstrate that its new procedure "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group]," 42 U.S.C. § 1973c. The fact that such a showing could have been made, but was not, will not excuse the failure to follow the statutory preclearance procedure. "Failure to obtain either judicial or administrative preclearance `renders the change unenforceable.' " Clark v. Roemer, 500 U.S. 646, 652 (1991) (quoting Hathorn v. Lovorn, 457 U.S. 255, 269 (1982)).
6 30 Fed. Reg. 9897 (1965). The others were Alabama, Alaska, Georgia, Louisiana, Mississippi, and South Carolina. Ibid. In addition, portions of North Carolina, Arizona, Hawaii, and Idaho were designated then or shortly thereafter. See 30 Fed. Reg. 14505 (1965).
7 The regulation, which was adopted in 1981, provides:
"Political parties. Certain activities of political parties are subject to the preclearance requirement of section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (a) If the change relates to a public electoral function of the party and (b) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political sub unit subject to the preclearance requirement of section 5. For example, changes with respect to the recruitment of party members, the conduct of political campaigns, and the drafting of party platforms are not subject to the preclearance requirement. Changes with respect to the conduct of primary elections at which party nominees, delegates to party conventions, or party officials are chosen are subject to the preclearance requirement of section 5. Where appropriate the term `jurisdiction' (but not `covered jurisdiction') includes political parties." 28 CFR § 51.7 (1995).
8 Virginia had 2,974,149 registered voters on January 1, 1994. See State Bd. of Elections, Commonwealth of Virginia, Number of Precincts and Registered Voters as of January 1, 1994, p. 4 (rev. Jan. 10, 1994). One half of one percent of that figure is 14,871.
9 Virginia law defines the term "political party" to include an organization of Virginia citizens "which, at either of the two preceding statewide general elections, received at least ten percent of the total vote cast for any statewide office filled in that election." Va. Code Ann. §24.2-101 (1993). The Democratic Party of Virginia and the Republican Party of Virginia are the only organizations that satisfy that definition.
The definition has not been set in stone, however. Before 1991, the term "political party" included only parties that polled 10 percent of the vote at the last preceding statewide election. The Democratic Party, however, did not field a candidate for the 1990 Senate race, and thus would have lost its automatic ballot access for the next election. See 29 Council of State Governments, Book of the States 260 (1992-1993 ed.). Rather than allow that outcome, the Virginia Legislature amended the definition to qualify parties that polled the requisite number of votes at either of the two preceding elections and provided that the amendment would apply retroactively. See 1991 Va. Acts, ch. 12, §1(7).
10 Virginia law also allows the major political parties to substitute a new nominee should the chosen nominee die, withdraw, or have his or her nomination set aside. In that circumstance, other parties and independent candidates are also permitted to make nominations, but the triggering event occurs only when a party nominee cannot run. The statute thus ensures that the major parties will always have a candidate on the ballot. See Va. Code Ann. §§ 24.2-539, 24.2-540 (1993).
11 In some circumstances, a primary election is required unless the incumbent office holder from that party consents to a different method of nomination. Va. Code Ann. §24.2-509(B) (1993). In its brief, the Party suggested that this one exception to plenary party control over the method of nomination is unconstitutional. See Brief for Appellees 31. While it appeared that the Party might bring suit before the 1996 election to try to have the provision struck down, see Whitley, Republicans Wrestle with Primary Issue, Richmond Times Dispatch, Oct. 25, 1995, p. B1, it relented after the Attorney General of Virginia determined that the law was probably valid. See Va. Op. Atty. Gen. (Nov. 22, 1995). In any event, because the incumbent United States Senator was a Democrat in 1994, the Party was authorized to follow any method it chose, so long as it named its candidate within the time period prescribed by the statute.
12 The Secretary of the Party is required to certify the name of the nominee to the State Board of Elections. If certification is not timely, however, the Board will declare the chosen candidate to be the nominee and treat his or her name as if certified. Va. Code Ann. §24.2-511 (1993).
13 Research has shown that placement at the top of a ballot often confers an advantage to candidates so positioned. The classic study of the phenomenon is H. Bain & D. Hecock, Ballot Position and Voter's Choice: The Arrangement of Names on the Ballot and its Effect on the Voter (1957). See also Note, California Ballot Position Statutes: An Unconstitutional Advantage to Incumbents, 45 S. Cal. L. Rev. 365 (1972) (listing other studies); Note, Constitutional Problems with Statutes Regulating Ballot Position, 23 Tulsa L. J. 123 (1987). Some studies have suggested that the effect of favorable placement varies by type of election, visibility of the race, and even the use of voting machines. See id., at 127. While the research is not conclusive, it is reasonable to assume that candidates would prefer positions at the top of the ballot if given a choice.
14 App. 24 (affidavit of David S. Johnson, Exec. Dir. of Republican Party of Virginia ¶12).
15 According to the Party, 14,614 voters attended the 1994 convention. Ibid. A total of 14,871 signatures were required to qualify as an independent candidate. See n. 8, supra.
16 The Party argues that automatic ballot access is merely a "practical accommodation to political reality" because the major parties have shown, through their performance in previous elections, significant levels of voter support. Brief for Appellees 32. According to the Party, the Party nominee need not demonstrate personal support because he or she is credited with the Party's showing. Id., at 33 (citing Weisburd, Candidate Making and the Constitution: Constitutional Restraints on and Protections of Party Nominating Methods, 57 S. Cal. L. Rev. 213, 242 (1984)).
Such "crediting" does not answer the question why the Party nominee should receive automatic ballot access. The fact that the Party has polled well in previous elections does not logically entail any conclusion about the success of its present candidate--especially when that nominee is chosen at a convention attended by limited numbers of Party members, rather than a primary. Furthermore, ballot access for all other candidates is predicated on a showing of individual electability. The Commonwealth certainly may choose to recognize the Party's selection of a nominee, but such recognition is not mandated by any right of the Party to demand placement on the ballot. Contrary to appellees, cases such as Williams v. Rhodes, 393 U.S. 23 (1968), Jenness v. Fortson, 403 U.S. 431 (1971), and American Party of Texas v. White, 415 U.S. 767 (1974), establish only that political parties with at least a modicum of public support must be provided a reasonable method of ballot access. They do not establish that they are entitled to choose the method itself.
According to Justice Thomas, the Party merely "takes advantage of favorable state law" when it certifies its nominee for automatic placement on the ballot. Post, at 24. On that theory, the requirements of 28 CFR § 51.7 (1995) would not be met even if Virginia let only the two major parties place their candidates on the ballot, and no one else. For the same reasons we give below, see infra, at 31-32, it is implausible to think the regulation was meant to apply only in one party States.
17 Justice Thomas argues that our decision in Smith v. Allwright, 321 U.S. 649 (1944), depended on the State's regulation of the Party's activities. Post, at 17-18. While it is true that political parties in Smith were subject to extensive regulation, nothing in our decision turned on that factor. Only nine years before Smith, the Court had surveyed the same statutory regime in Grovey v. Townsend, 295 U.S. 45, 50 (1935), and concluded that primary elections were private voluntary activity. What changed was not the extent of state regulation, but the Court's understanding, based on its intervening decision in United States v. Classic, 313 U.S. 299 (1941), that primaries were "a part of the machinery for choosing officials." 321 U. S., at 664. On that basis, the Court overruled Grovey, even though the objectionable practice there of excluding blacks from membership in the party was undertaken by a private, unregulated entity.
The irrelevance of state regulation was confirmed in two cases decided after Smith. Subsequent to Smith, South Carolina repealed all of its laws regulating political primaries. The Democratic primary was thereafter conducted under rules prescribed by the Democratic Party alone, which included rules restricting the primary to white persons. The Fourth Circuit struck down those practices, reasoning that "[s]tate law relating to the general election gives effect to what is done in the primary and makes it just as much a part of the election machinery of the state by which the people choose their officers as if it were regulated by law, as formerly." Rice v. Elmore, 165 F. 2d 387, 390-391 (1947) (emphasis added); accord Baskin v. Brown, 174 F. 2d 391 (1949). The principal opinion in Terry v. Adams, 345 U.S. 461 (1953), declared that these cases were "in accord with the commands of the Fifteenth Amendment and the laws passed pursuant to it." Id., at 466 (opinion of Black, J.).
18 See Brief for United States as Amicus Curiae 11-13. Since 1981, when the regulation was promulgated, there have been nearly 2,000 preclearance submissions involving more than 16,000 proposed changes by political parties in covered jurisdictions. See letter from Drew S. Days III, Solicitor General, to William K. Suter, Clerk of the Supreme Court, dated Oct. 4, 1995 (lodged with Clerk of this Court). Of particular note, on April 12, 1982, the Attorney General precleared changes in the delegate selection plan adopted by the Democratic Party of Virginia for its senatorial nominating convention. See Brief for United States as Amicus Curiae, 12, n. 7; letter from Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Div., to Russel Rosen, Executive Director, Democratic Party of Va., dated Apr. 12, 1982 (lodged with Clerk of this Court).
Political parties submitted changes in their rules for preclearance, and the Department of Justice interposed objections to those changes, long before 1981. For example: the Sumter County, Alabama, Democratic Executive Committee submitted changes in 1974, and the Democratic Party of New York City submitted changes in 1975. See Extension of the Voting Rights Act: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., pt. 3, pp. 2246, 2265 (1981) (appendix to letter from James P. Turner, Acting Ass't Attorney General, to Rep. Edwards dated Apr. 9, 1981). Parties from New York, North Carolina, and Alabama submitted changes in 1972. See D. Hunter, Federal Review of Voting Changes 69, n. 30 (1974), reprinted in Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 1541 (1975). In MacGuire v. Amos, 343 F. Supp. 119, 121 (MD Ala. 1972), a three judge court held that rules promulgated by the Alabama Democratic and Republican Parties governing election of national delegates required preclearance, despite the fact that the rules were not passed by "the State's legislature or by a political subdivision of the State." As a result of this decision, the Democratic Party of Alabama sought judicial preclearance under §5. See Vance v. United States, Civ. Action No. 1529-72 (DDC Nov. 30, 1972), cited in Hunter Federal Review of Voting Changes, at 69, n. 30.
19 "The State has no connection with the delegate selection process or State Party's rules and regulations other than allowing the rules and regulations to be filed under Ga. Code Ann. §34-902. The purpose of such filing is merely to provide a place for public inspection of the State Party's rules and regulations." Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), pp. 4-5. In their motion to affirm in that case, the appellees noted that the Secretary of State of Georgia was obligated to approve a political party's rules applicable to the selection of candidates for public office by convention but had no authority to review the rules and regulations promulgated by the National Democratic Party governing the selection of delegates to its national convention. Under the Attorney General's regulation that is now in effect, preclearance of the National Democratic Party's Rule change would not have been required if the District Court's interpretation of Georgia law was correct. Our summary affirmance no doubt accepted that Court's view of the relevant state law. Cf. Bishop v. Wood, 426 U.S. 341, 345-346 (1976).
20 See, e.g., Fortune v. Kings County Democratic Comm., 598 F. Supp. 761, 764 (EDNY 1984) (requiring preclearance of change in voting membership of county party executive committee, because those members performed a "public electoral function" in filling vacancies in nominations for state office).
21 We also note that a summary affirmance by this Court is a "rather slender reed" on which to rest future decisions. Anderson v. Celebrezze, 460 U.S. 780, 784-785, n. 5 (1983). "A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." Ibid. Either of the two grounds discussed above--the State's noninvolvement or the absence of suitable administrative procedures for submission--would have sufficed for our affirmance.
22 Virginia created its first signature requirement for self nominated candidates in 1936. See Va. Code Ann., Tit. 6, §154 (1936) (requiring petition signed by 250 qualified voters of the Commonwealth). Although the Commonwealth maintains limited legislative history records, contemporary news accounts reported that the provision was designed to "discourage cranks and persons who for personal glorification take advantage of the very liberal terms of the election code." New Qualification, The Richmond News Leader, Mar. 6, 1936, p. 8. Then as now, political parties were exempt from the signature requirement.
23 Quoting this very language, we have observed that candidates are nominated, not elected. Chisom v. Roemer, 501 U.S. 380, 400 (1991). It is not anomalous, therefore, to hold that §5 applies regardless of the means of nomination.
24 See Brief for Appellees 2; App. 32 (Republican Party Plan, Art. II, ¶22) (defining "Party Canvass" as "a method of electing . . . delegates to Conventions"); id., at 52 (Plan, Art. VIII, §A, ¶3) (referring to "any election by a Mass Meeting, Party Canvass, or Convention"); id., at 56 (Plan, Art. VIII, §H, ¶4); id., at 23 (affidavit of David S. Johnson, Executive Dir. of Republican Party of Virginia, ¶¶5,8). The call for the state convention itself, to which appellants responded, stated: "The delegates and alternates shall be elected in county and city Mass Meetings, Conventions, or Party Canvasses that shall be held between March 1, 1994 and April 1, 1994." Id., at 62.
25 In fact, it did not. The 1981 House Report states that "whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i.e., litigation or preclearance." H. R. Rep. No. 97-227, p. 28. That statement indicates that the substantive standards for §2 and §5 violations are the same, so long as the challenged practice represents a change from 1965 conditions, as the filing fee did here. Even more explicitly, the 1982 Senate Report states that "a section 5 objection also follow[s] if a new voting procedure itself so discriminates as to violate section 2." S. Rep. No. 97-417, p. 12, n. 31 (1982). The Report refers to voting procedures that dilute minority voting strength. See id., at 10. We have recognized that measures undertaken by both " `State legislatures and political party committees' " have had just such dilutive effects, through devices that included " `switching to at large elections where Negro voting strength is concentrated in particular election districts, facilitating the consolidation of predominantly Negro and predominantly white counties, and redrawing the lines of districts to divide concentrations of Negro voting strength.' " Perkins v. Matthews, 400 U.S. 379, 389 (1971) (quoting Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein)) (emphasis added). See also n. 27, infra. Contrary to Justice Thomas, therefore, Congress has already "harmonize[d]" §§2 and 5, see post, at 32; it is he who seeks to sunder them.
26 "To enforce the fifteenth amendment to the Constitution of the United States, and for other purposes." 79 Stat. 437.
27 Congress was plainly aware of the power of political parties to carry out discriminatory electoral practices as a supplement to or a substitute for voting discrimination by government officials. Of course, the White Primary Cases supplied the primary historical examples of such practices. See H. R. Rep. No. 439, 89th Cong., 1st Sess., 8 (1965). In addition, during the 1970 extension of the Act, Congress heard testimony from the Director of the United States Civil Rights Commission wherein he reiterated the influence political parties continued to exercise over the electoral process in jurisdictions designated under the Act. He testified that "[s]tate legislatures and political party committees in Alabama and Mississippi have adopted laws or rules since the passage of the act which have had the purpose or effect of diluting the votes of newly enfranchised Negro voters." Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein), quoted in Perkins v. Matthews, 400 U. S., at 389. As examples, he introduced evidence that in 1968 the Mississippi Democratic Party persisted in its "pattern of exclusion of and discrimination against Negroes at precinct meetings, county conventions and the State convention," id., at 18-19; that other officials "withheld information from black party members about party precinct meetings and conventions or have prevented them from participating fully," id., at 18, 43; that the Alabama Democratic Party raised candidate filing fees for some of its primaries tenfold after blacks began voting in large numbers, id., at 18, 27; and that various party executive committees refused to count votes by blacks who were not on the registration books, even if they were listed by the Federal Examiner, id., at 46, engaged in discriminatory purges of black voters, id., at 48, and misled black candidates about the requirements for running in primary elections or did not notify them of their failure to qualify until after deadlines had passed, id., at 46-47.
In his testimony, Director Glickstein summarized the more extensive findings about discriminatory electoral practices carried out by the established political parties that were set forth in a report prepared by the United States Commission on Civil Rights pursuant to congressional directive. See id., at 17-18. It concluded that, three years after passage of the Act,
"in some areas there has been little or no progress in the entry and participation by Negroes in political party affairs--the key to meaningful participation in the electoral process. Some of the practices found are reminiscent of those which existed at an earlier time during Reconstruction when fear of `Negro government' gave rise to intimidation and a number of election contrivances which finally led to disenfranchisement of the Negro citizen." U. S. Commission on Civil Rights, Political Participation 178 (May 1968).
28 The analogy is even closer, for the Jaybirds originally performed their nominations in mass meetings. See 345 U. S., at 470 (opinion of Frankfurter, J.); id., at 480 (Clark, J., concurring). Nothing in any of the opinions suggests--and it would be perverse to suppose--that the Jaybirds' nominating activities only became unconstitutional when they switched to balloting methods.
29 Justice Thomas' claim that there has been no purposeful evasion of the Constitution, see post, at 19, is therefore irrelevant.
30 Appellees' theory is particularly unpersuasive in light of the fact that other parts of the Voting Rights Act reach beyond the scope of §1 of the Fifteenth Amendment. For example, the Act created a per se ban on literacy tests despite this Court's decision that facially fair tests are not themselves unconstitutional. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). We upheld this exercise of Congress' power under §2 of the Amendment without overruling Lassiter. South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966); see also City of Rome v. United States, 446 U.S. 156, 173-178 (1980). Congress again legislated beyond the reach of the Fifteenth Amendment when it amended §2 of the Act to reject the "intent test" propounded in Mobile v. Bolden, 446 U.S. 55 (1980). See S. Rep. No. 97-417, at 39-43.
31 Justice Thomas contends that United States v. Classic is inapplicable because Party nominating conventions are not " `by law made an integral part of the election machinery.' " Post, at 20, n. 12. Moore v. Ogilvie, 394 U.S. 814 (1969), shows that this view is incorrect. The Court in Moore held that the use of nominating petitions by independent candidates was an " `integral part of the election process,' " even though a nominating petition obviously is not a primary, and that procedure plainly was not "merged by law," post, at 20, n. 12, into the State's election apparatus. See 394 U. S., at 818 (citing Classic and Smith); MacDougall v. Green, 335 U.S. 281, 288 (1948) (Douglas, J., dissenting). See also Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., 457 (1965) (statement of Rep. Bingham) ("It is clear that political party meetings, councils, conventions, and referendums which lead to endorsement or selection of candidates who will run in primary or general elections are, in most instances, a vital part of the election process") (citing Smith and Terry).
32 The Party makes passing reference to the idea in its brief, but the surrounding argument makes clear that it only challenges application of the regulation to its nominating activities. See Brief for Appellees 30-40. At oral argument, moreover, the Party confirmed that it believed §5 could encompass the activities of political parties. See Tr. Oral Arg. 28-30.
34 Justice Kennedy and Justice Thomas nevertheless argue that Congress should have borrowed language from 42 U.S.C. § 1983 if it had intended §5 to cover political parties. To bolster the point, they cite the "Prohibited acts" provision of the Act, §11(a), which forbids any "person acting under color of law" to interfere with the exercise of the right to vote. See 42 U.S.C. § 1973i(a) (1988 ed.). It is quite natural, however, that Congress would draw on §1983 when it sought to draft provisions that established individual liability for persons who violate civil rights such as the right to vote. Section 1983 was designed "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172 (1961). Section 11(a) served exactly the same end, and therefore used similar language.
By contrast, Congress would not have looked to §1983 to supply language for §5 for the simple reason that §1983 does not reach the one type of entity Congress most desired §5 to cover: the States themselves. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Justice Thomas tries to avoid this problem by proposing a new, disjunctive statutory phrase that is supposedly clearer than the present §5: " `State or political subdivision or any person acting under color of State law.' " Post, at 14-15 (emphasis deleted). That concatenation of elements, however, appears in no statute ever enacted, so it is unclear why it is preferable to language that had already been construed by this Court. Furthermore, the "person acting under color of state law" locution would be simultaneously too broad and too narrow in that context. Section 5 focuses not on actions that individuals carry out, but on voting practices that organizations enact or implement. Ordinary "persons" do not create and implement voting practices. At the same time, the "plain meaning" of the word "person" does not include political parties. While "person" can be read more broadly, so can "State," as our precedents show. Finally, if "person" reached non natural entities, it would become partly redundant with the word "State," which the dissent itself concedes encompasses political units smaller than States. See Sheffield; Dougherty. In short, it is hardly surprising that Congress opted for the language of the Constitution rather than Justice Thomas' concocted phrase.
35 Justice Thomas is unwilling to accept our representation as to the reasoning underlying our decision; he goes on at great length about our treatment of the regulation, claiming that we "displac[e]" §5 with it, post, at 7, n. 4; that we "substitut[e]" it as the "analytical starting point" of the case, post, at 11; and that by considering it we somehow prejudge the question presented, post, at 12. None of these assertions is accurate. We begin our discussion of the case by analyzing the regulation for the simple reason that the District Court rested its decision on that ground, and the Party argues that the regulation supports its position.
36 While Justice Thomas relies heavily on Justice O'Connor's dissenting opinion in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), he overlooks the fact that the Court's holding in that case makes it clear that state delegation of selection powers to two adversaries instead of just one state actor does not preclude a finding of state action. The Edmonson dissent argued that since peremptory strikes are available to both opposing sides in a lawsuit, the State cannot simultaneously advance each party's use. The dissent reasoned, therefore, that the State is "neutral" as to their use and not " `responsible' " for it. Id., at 643 (opinion of O'Connor, J.). Virginia, on the other hand, grants automatic ballot access to only two entities, and requires everyone else to comply with more onerous requirements. As we have shown, Virginia gives a host of special privileges to the major parties, including automatic access, preferential placement, choice of nominating method, and the power to replace disqualified candidates. See supra, at 7-9, and nn. 10-13. It is perfectly natural, therefore, to hold that Virginia seeks to advance the ends of both the major parties.
37 This conclusion is buttressed by the fact that in most covered jurisdictions party candidates are selected in primary elections which are admittedly subject to the preclearance requirement. Apparently, Alabama and Virginia are the only two States covered by the Act that authorize the use of conventions to nominate candidates for statewide office. See Council of State Governments, Book of the States 217-218 (1994-1995 ed.).
We also note that States may remove themselves from the special provisions of the Act, such as preclearance, by means of the bailout mechanisms provided in §4. Several States and political subdivisions initially designated for coverage have successfully availed themselves of these procedures. See, e.g., S. Rep. No. 94-295, p. 35 (1975) (citing bailouts by Alaska; Wake County, North Carolina; Elmore County, Idaho; and Apache, Navajo, and Coconino Counties, Arizona).
38 We recognize that there is a narrow category of exceptional cases in which litigants "are permitted to challenge a statute not because their own rights are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Because a claim of facial overbreadth, if successful, is such "strong medicine," the doctrine "has been employed by the Court sparingly and only as a last resort." Id., at 613. Specifically, as is the case with §5 of the Voting Rights Act, "where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged by the statute's plainly legitimate sweep." Id., at 615. The breadth and importance of the legitimate sweep of §5 have been demonstrated in a long and unbroken line of decisions applying its preclearance requirements to covered jurisdictions. Even among political parties, it is undisputed that the right of associative freedom would not provide a defense to many practices condemned by §5. See Smith, 321 U. S., at 657; Eu, 489 U. S., at 232. Cf. Tashjian v. Republican Party of Conn., 479 U.S. 208, 237 (1986) (Scalia, J., dissenting) (the State "may lawfully require that significant elements of the democratic election process be democratic--whether the Party wants that or not"). Presumably that is why appellees have not argued that §5 is invalid on its face. Unlike Justice Scalia, we do not believe that the possibility that some future application of the statute might violate the First Amendment justifies a departure from our "traditional rules governing constitutional adjudication." 413 U. S., at 610.
We also disagree with his assertion that the requirement that the party preclear a change in practices that imposes a registration fee on voters seeking to participate in the nomination process is a "classic prior restraint." It imposes no restraint at all on speech. Given the past history of discrimination that gave rise to the preclearance remedy imposed by §5, the minimal burden on the right of association implicated in this case is unquestionably justified.
39 Relying on statements in appellees' brief, rather than anything in the record, Justice Thomas suggests that the registration fee was intended to avoid the danger that funding the convention with contributions from a few major donors would enable a small group of contributors to exercise undue influence over the candidate selection process. See post, at 34. The argument is ironic, to say the least, given the evidence that the supporters of the successful candidate for the Party's nomination were willing to pay a delegate's registration fee in return for that delegate's vote. See App. 7-8 (Complaint ¶¶ 21-34).
40 As originally enacted, §10 provided, in part:
"Sec. 10. (a) The Congress finds that the requirement of the payment of a poll tax as a precondition to voting (i) precludes persons of limited means from voting or imposes unreasonable financial hardship upon such persons as a precondition to their exercise of the franchise, (ii) does not bear a reasonable relationship to any legitimate State interest in the conduct of elections, and (iii) in some areas has the purpose or effect of denying persons the right to vote because of race or color. Upon the basis of these findings, Congress declares 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.
"(b) In the exercise of the powers of Congress under section 5 of the fourteenth amendment and section 2 of the fifteenth amendment, the 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) and the purposes of this section.
"(c) The district courts of the United States shall have jurisdiction of such actions which shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited." 79 Stat. 442.
41 In a footnote we observed that a private litigant could always bring suit under the Fifteenth Amendment, but it was the inadequacy of just those suits for securing the right to vote that prompted Congress to enact the statute. See 393 U. S., at 556, n. 21. Similarly with respect to a poll tax, the fact that a suit might be brought directly under the Twenty fourth Amendment is not a reason for declining to find a statutory remedy.
42 Justice Thomas attempts to distinguish §5 and §10 by arguing that the former describes a "particular class of persons" to be benefited while the latter does not. See post, at 38. Justice Thomas has it backwards. Section 5 states generically that "no person shall be denied the right to vote" by unprecleared changes. With far greater specificity, §10 states that poll taxes preclude "persons of limited means" from voting or impose unreasonable financial hardships on them and "in some areas ha[ve] the purpose or effect of denying persons the right to vote because of race or color." 42 U.S.C. § 1973h(a). It also declares 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." Ibid. Section 10 was clearly designed to benefit a limited class of individuals.
43 We do not know, therefore, what Justice Thomas means when he describes §5 as conferring a "statutory privilege" on a group of individuals. See post, at 38. If that phrase refers to a "right," then Justice Thomas is flatly wrong, for Allen itself denies reaching that question. The "guarantee of §5" to which Allen refers is simply its holding that individuals can sue under §5. It is circular to rely on that conclusion to distinguish §5 from §10, for the question presented here is precisely whether this Court should apply the same logic to §10.
44 See §12(a) (prescribing sanctions for any deprivation or attempted deprivation of "any right secured by section . . . 1973h [§10]"), 42 U.S.C. § 1973j(a) (1988 ed.) (emphasis added); §12(c) (prescribing sanctions for any conspiracy to interfere with "any right secured by section . . . 1973h [§10]"), 42 U.S.C. § 1973j(c) (1988 ed.) (emphasis added).
45 The Senate Report went on to explain more generally: "In enacting remedial legislation, Congress has regularly established a dual enforcement mechanism. It has, on the one hand, given enforcement responsibility to a governmental agency, and on the other, has also provided remedies to private persons acting as a class or on their own behalf. The Committee concludes that it is sound policy to authorize private remedies to assist the process of enforcing voting rights." S. Rep. No. 94-295, at 40.
46 The Senate Report states: "Such a provision is appropriate in voting rights cases because there, as in employment and public accomodations [sic] cases, and other civil rights cases, Congress depends heavily upon private citizens to enforce the fundamental rights involved. Fee awards are a necessary means of enabling private citizens to vindicate these Federal rights." Ibid.
47 Appellees argue that any congressional action taken in 1975 cannot support the existence of an implied private right of action because this Court began applying a stricter test for implied rights in Cort v. Ash, 422 U.S. 66 (1975). We note that Cort was decided on June 17, 1975, while the amendments to the Act were passed on August 6 of the same year. Pub. L. 94-73, 89 Stat. 400. Seven weeks--in the context of a bill that was first proposed more than a year earlier--is scarcely enough time for Congress to take account of a change in the "contemporary legal context," especially one whose nature and impact were the subject of some dispute at the time. See Cannon v. University of Chicago, 441 U.S. 677, 739-743 (1979) (Powell, J., dissenting) (arguing that Cort relaxed the standards for finding implied rights of action).
48 Appellees make one final argument that this case is moot because the 1994 convention has already been held. We note, however, that the Party has not disavowed the practice of imposing a delegate filing fee for its nominating convention, nor has it returned the $45 collected from appellant Morse. Indeed, the Party has required fees as far back as 1964, and continues to assert that they are necessary to finance its conventions. Like other cases challenging electoral practices, therefore, this controversy is not moot because it is "capable of repetition, yet evading review." Anderson v. Celebrezze, 460 U.S. 780, 784, n. 3 (1983); Storer v. Brown, 415 U.S. 724, 737, n. 8 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).