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Nos. 95-1455 and 95-1508

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JANET RENO, ATTORNEY GENERAL, APPELLANT 95-1455 v. BOSSIER PARISH SCHOOL BOARD et al. GEORGE PRICE, et al., APPELLANTS 95-1508

on appeals from the united states district court for the district of columbia

[May 12, 1997]

Justice Breyer , with whom Justice Ginsburg joins, concurring.

I join Parts I and II of the majority opinion, and Part III insofar as it is not inconsistent with this opinion. I write separately to express my disagreement with one aspect of the majority opinion. The majority says that we need not decide "whether the §5 purpose inquiry ever extends beyond the search for retrogressive intent." Ante, at 14. In my view, we should decide the question, for otherwise the District Court will find it difficult to evaluate the evidence that we say it must consider. Cf. post, at 14 (Stevens, J., dissenting in part and concurring in part). Moreover, the answer to the question is that the "purpose" inquiry does extend beyond the search for retrogressive intent. It includes the purpose of unconstitutionally diluting minority voting strength.

The language of §5 itself forbids a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" where that change either (1) has the "purpose" or (2) will have the "effect" of "denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. These last few words reiterate in context the language of the 15th Amendment itself: "The right of citizens . . . to vote shall not be denied or abridged . . . on account of race [or] color . . . ." This use of constitutional language indicates that one purpose forbidden by the statute is a purpose to act unconstitutionally. And a new plan enacted with the purpose of unconstitutionally diluting minority votes is an unconstitutional plan. Mobile v. Bolden, 446 U.S. 55, 62-63, 66 (1980) (plurality opinion); ante, at 9.

Of course, the constitutional language also applies to §5's prohibition that rests upon "effects." The Court assumes, in its discussion of "effects," that the §5 word "effects" does not now embody a purely constitutional test, whether or not it ever did so. See ante, at 5-6; City of Rome v. United States, 446 U.S. 156, 173, 177 (1980). And that fact, here, is beside the point. The separate argument about the meaning of the word "effect" concerns how far beyond the Constitution's requirements Congress intended that word to reach. The argument about "purpose" is simply whether Congress intended the word to reach as far as the Constitution itself, embodying those purposes that, in relevant context, the Constitution itself would forbid. I can find nothing in the Court's discussion that shows that Congress intended to restrict the meaning of the statutory word "purpose" short of what the Constitution itself requires. And the Court has previously expressly indicated that minority vote dilution is a harm that §5 guards against. Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969).

Consider a hypothetical example that will clarify the precise legal question here at issue. Suppose that a covered jurisdiction is choosing between two new voting plans, A and B. Neither plan is retrogressive. Plan A violates every traditional districting principle, but from the perspective of minority representation, it maintains the status quo, thereby meeting the "effects" test of §5. See ante, at 5-7. Plan B is basically consistent with traditional districting principles and it also creates one or two new majority minority districts (in a state where the number of such districts is significantly less than proportional to minority voting age population). Suppose further that the covered jurisdiction adopts Plan A. Without any other proposed evidence or justification, ordinary principles of logic and human experience suggest that the jurisdiction would likely have adopted Plan A with "the purpose . . . of denying or abridging the right to vote on account of race or color." §1973c. It is reasonable to assume that the Constitution would forbid the use of such a plan. See Rogers v. Lodge, 458 U.S. 613, 617 (1982) (Fourteenth Amendment covers vote dilution claims); Mobile, supra, at 66 (plurality opinion) (same). And compare id., at 62-63 (intentional vote dilution may be illegal under the Fifteenth Amendment), and Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960) (Fifteenth Amendment covers municipal boundaries drawn to exclude blacks), with Mobile, supra, at 84, n. 3 (Stevens, J., concurring in judgment) (Mobile plurality said that Fifteenth Amendment does not reach vote dilution); Voinovich v. Quilter, 507 U.S. 146, 159 (1993) ("This Court has not decided whether the Fifteenth Amendment applies to vote dilution claims . . ."); Shaw v. Reno, 509 U.S. 630, 645 (1993) (endorsing the Gomillion concurrence's Fourteenth Amendment approach); Beer v. United States, 425 U.S. 130, 142, n. 14 (1976). Then, to read §5's "purpose" language to require approval of Plan A, even though the jurisdiction cannot provide a neutral explanation for its choice, would be both to read §5 contrary to its plain language and also to believe that Congress would have wanted a §5 court (or the Attorney General) to approve an unconstitutional plan adopted with an unconstitutional purpose.

In light of this example, it is not surprising that this Court has previously indicated that the purpose part of §5 prohibits a plan adopted with the purpose of unconstitutionally diluting minority voting strength, whether or not the plan is retrogressive in its effect. In Shaw v. Hunt, for example, the Court doubted "that a showing of discriminatory effect under §2, alone, could support a claim of discriminatory purpose under §5." 517 U. S. ___, ___, n. 6 (1996) (slip op., at 14) (emphasis added). The word "alone" suggests that the evidence of a discriminatory effect there at issue--evidence of dilution--could be relevant to a discriminatory purpose claim. And if so, the more natural understanding of §5 is that an unlawful purpose includes more than simply a purpose to retrogress. Otherwise, dilution would either dispositively show an unlawful discriminatory effect (if retrogressive) or it would almost always be irrelevant (if not retrogressive). Either way, it would not normally have much to do with unlawful purpose. See also the discussions in Richmond v. United States, 422 U.S. 358, 378-379 (1975) (annexation plan did not have an impermissible dilutive effect but the Court remanded for a determination of whether there was an impermissible §5 purpose); Pleasant Grove v. United States, 479 U.S. 462, 471-472, and n. 11 (1987) (purpose to minimize future black voting strength is impermissible under §5); Port Arthur v. United States, 459 U.S. 159, 168 (1982) (a plan adopted for a discriminatory purpose is invalid under §5 even if it "might otherwise be said to reflect the political strength of the minority community"); post, at 13-14 (Stevens, J., dissenting in part and concurring in part).

Miller v. Johnson, 515 U. S. ___ (1995), also implicitly assumed that §5's "purpose" stretched beyond the purely retrogressive. There, the Justice Department pointed out that Georgia made a choice between two redistricting plans, one of which (call it Plan A) had more majority black districts than the other (call it Plan B). The Department argued that the fact that Georgia chose Plan B showed a forbidden §5 discriminatory purpose. The Court rejected this argument, but the reason that the majority gave for that rejection is important. The Court pointed out that Plan B embodied traditional state districting principles. It reasoned that "[t]he State's policy of adhering to other districting principles instead of creating as many majority minority districts as possible does not support an inference" of an unlawful discriminatory purpose. Id., at ___ (slip op., at 23). If the only relevant "purpose" were a retrogressive purpose, this reasoning, with its reliance upon traditional districting principles, would have been beside the point. The Court would have concerned itself only with Georgia's intent to worsen the position of minorities, not with the reasons why Georgia could have adopted one of two potentially ameliorative plans. Indeed, the Court indicated that an ameliorative plan would run afoul of the §5 purpose test if it violated the Constitution. Ibid. See also Shaw v. Hunt, supra, at ___ (slip op, at 12-13).

In sum, the Court today should make explicit an assumption implicit in its prior cases. Section 5 prohibits a covered state from making changes in its voting practices and procedures where those changes have the unconstitutional "purpose" of unconstitutionally diluting minority voting strength.