|Concurrence ||Syllabus ||Concurrence ||Opinion |
[ O'Connor ]
[ Stevens ]
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
Nos. 95-1455 and 95-1508
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
Today we clarify the relationship between §2 and §5 of the Voting Rights Act of 1965, 79 Stat. 437, 439, as amended, 42 U.S.C. §§ 1973 1973c. Specifically, we decide two questions: (i) whether preclearance must be denied under §5 whenever a covered jurisdiction's new voting "standard, practice, or procedure" violates §2; and (ii) whether evidence that a new "standard, practice, or procedure" has a dilutive impact is always irrelevant to the inquiry whether the covered jurisdiction acted with "the purpose . . . of denying or abridging the right to vote on account of race or color" under §5. We answer both in the negative.
Appellee Bossier Parish School Board (Board) is a jurisdiction subject to the preclearance requirements of §5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c and must therefore obtain the approval of either the United States Attorney General or the United States District Court for the District of Columbia before implementing any changes to a voting "qualification, prerequisite, standard, practice, or procedure." The Board has 12 members who are elected from single member districts by majority vote to serve 4 year terms. When the 1990 census revealed wide population disparities among its districts, see App. to Juris. Statement 93a (Stipulations of Fact and Law ¶82), the Board decided to redraw the districts to equalize the population distribution.
During this process, the Board considered two redistricting plans. It considered, and initially rejected, the redistricting plan that had been recently adopted by the Bossier Parish Police Jury, the parish's primary governing body (the Jury plan), to govern its own elections. Just months before, the Attorney General had precleared the Jury plan, which also contained 12 districts. Id., at 88a (Stipulations, ¶68). None of the 12 districts in the Board's existing plan or in the Jury plan contained a majority of black residents. Id., at 93a (Stipulations, ¶82) (under 1990 population statistics in the Board's existing districts, the three districts with highest black concentrations contain 46.63%, 43.79%, and 30.13% black residents, respectively); id., at 85a (Stipulations, ¶59) (population statistics for Jury plan, with none of the plan's 12 districts containing a black majority). Because the Board's adoption of the Jury plan would have maintained the status quo regarding the number of black majority districts, the parties stipulated that the Jury plan was not "retrogressive." Id., at 141a (Stipulations, ¶252) ("The . . . plan is not retrogressive to minority voting strength compared to the existing benchmark plan . . ."). Appellant George Price, president of the local chapter of the NAACP, presented the Board with a second option--a plan that created two districts each containing not only a majority of black residents, but a majority of voting age black residents. Id., at 98a (Stipulations, ¶98). Over vocal opposition from local residents, black and white alike, the Board voted to adopt the Jury plan as its own, reasoning that the Jury plan would almost certainly be precleared again and that the NAACP plan would require the Board to split 46 electoral precincts.
But the Board's hopes for rapid preclearance were dashed when the Attorney General interposed a formal objection to the Board's plan on the basis of "new information" not available when the Justice Department had precleared the plan for the Police Jury--namely, the NAACP's plan, which demonstrated that "black residents are sufficiently numerous and geographically compact so as to constitute a majority in two single member districts." Id., at 155a-156a (Attorney General's August 30, 1993, objection letter). The objection letter asserted that the Board's plan violated §2 of the Act, 42 U.S.C. § 1973 because it "unnecessarily limit[ed] the opportunity for minority voters to elect their candidates of choice," id., at 156a, as compared to the new alternative. Relying on 28 CFR § 51.55(b)(2) (1996), which provides that the Attorney General shall withhold preclearance where "necessary to prevent a clear violation of amended Section 2 [42 U.S.C. § 1973]," the Attorney General concluded that the Board's redistricting plan warranted a denial of preclearance under §5. App. to Juris. Statement 157a. The Attorney General declined to reconsider the decision. Ibid.
The Board then filed this action seeking preclearance under §5 in the District Court for the District of Columbia. Appellant Price and others intervened as defendants. The three judge panel granted the Board's request for preclearance, over the dissent of one judge. 907 F. Supp. 434, 437 (DC 1995). The District Court squarely rejected the appellants' contention that a voting change's alleged failure to satisfy §2 constituted an independent reason to deny preclearance under §5: "We hold, as has every court that has considered the question, that a political subdivision that does not violate either the `effect' or the `purpose' prong of section 5 cannot be denied preclearance because of an alleged section 2 violation." Id., at 440-441. Given this holding, the District Court quite properly expressed no opinion on whether the Jury plan in fact violated §2, and its refusal to reach out and decide the issue in dicta does not require us, as Justice Stevens insists, to "assume that the record discloses a `clear violation' of §2." See post, at 3-4 (opinion dissenting in part and concurring in part). That issue has yet to be decided by any court. The District Court did, however, reject appellants' related argument that a court "must still consider evidence of a section 2 violation as evidence of discriminatory purpose under section 5." Id., at 445. We noted probable jurisdiction on June 3, 1996. 517 U. S. ___ .
The Voting Rights Act of 1965 (Act), 42
U.S.C. § 1973 et seq., was enacted by Congress in 1964
to "attac[k] the blight of voting discrimination" across the Nation. S.
Section 5, 42 U.S.C. § 1973c was enacted as
"a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down. . . . Congress therefore decided, as the Supreme Court held it could, `to shift the advantage of time and inertia from the perpetrators of the evil to its victim,' by `freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.' " Beer v. United States, 425 U.S. 130, 140 (1976) (quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)).
In light of this limited purpose, §5 applies only to certain States and their political subdivisions. Such a covered jurisdiction may not implement any change in a voting "qualification, prerequisite, standard, practice, or procedure" unless it first obtains either administrative preclearance of that change from the Attorney General or judicial preclearance from the District Court for the District of Columbia. 42 U.S.C. § 1973c. To obtain judicial preclearance, the jurisdiction bears the burden of proving that the change "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." Ibid.; City of Rome v. United States, 446 U.S. 156, 183, n. 18 (1980) (covered jurisdiction bears burden of proof). Because §5 focuses on "freez[ing] election procedures," a plan has an impermissible "effect" under §5 only if it "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, supra, at 141.
Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan. See Holder, supra, at 883 (plurality opinion) ("Under §5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change"). It also necessarily implies that the jurisdiction's existing plan is the benchmark against which the "effect" of voting changes is measured. In Beer, for example, we concluded that the city of New Orleans' reapportionment of its council districts, which created one district with a majority of voting age blacks where before there had been none, had no discriminatory "effect." 425 U. S., at 141-142 ("It is thus apparent that a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the `effect' of diluting or abridging the right to vote on account of race within the meaning of §5"). Likewise, in City of Lockhart v. United States, 460 U.S. 125 (1983), we found that the city's new charter had no retrogressive "effect" even though it maintained the city's prior practice of electing its council members at large from numbered posts, and instituted a new practice of electing two of the city's four council members every year (instead of electing all the council members every two years). While each practice could "have a discriminatory effect under some circumstances," id., at 135, the fact remained that "[s]ince the new plan did not increase the degree of discrimination against [the city's Mexican American population], it was entitled to §5 preclearance [because it was not retrogressive]," id., at 134 (emphasis added).
Section 2, on the other hand, was designed as a means of eradicating voting practices that "minimize or cancel out the voting strength and political effectiveness of minority groups," S. Rep. No. 97-417, supra, at 28. Under this broader mandate, §2 bars all States and their political subdivisions from maintaining any voting "standard, practice, or procedure" that "results in a denial or abridgement of the right . . . to vote on account of race or color." 42 U.S.C. § 1973(a). A voting practice is impermissibly dilutive within the meaning of §2
"if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [members of a class defined by race or color] 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).
A plaintiff claiming vote dilution under §2 must initially establish that: (i) "[the racial group] is sufficiently large and geographically compact to constitute a majority in a single member district"; (ii) the group is "politically cohesive"; and (iii) "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); Growe v. Emison, 507 U.S. 25, 40 (1993). The plaintiff must also demonstrate that the totality of the circumstances supports a finding that the voting scheme is dilutive. Johnson v. DeGrandy, 512 U.S. 997, 1011 (1994); see Gingles, supra, at 44-45 (listing factors to be considered by a court in assessing the totality of the circumstances). Because the very concept of vote dilution implies--and, indeed, necessitates--the existence of an "undiluted" practice against which the fact of dilution may be measured, a §2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark "undiluted" voting practice. Holder v. Hall, 512 U. S., at 881 (plurality opinion); id., at 950-951 (Blackmun, J., dissenting).
Appellants contend that preclearance must be denied under §5 whenever a covered jurisdiction's redistricting plan violates §2. The upshot of this position is to shift the focus of §5 from non retrogression to vote dilution, and to change the §5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan.
But §5, we have held, is designed to combat only those effects that are retrogressive. See supra, at 4-6. To adopt appellants' position, we would have to call into question more than 20 years of precedent interpreting §5. See, e. g., Beer, supra; City of Lockhart, supra. This we decline to do. Section 5 already imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect. See, e.g., Elkins v. United States, 364 U.S. 208, 219 (1960) ("[A]s a practical matter it is never easy to prove a negative"). To require a jurisdiction to litigate whether its proposed redistricting plan also has a dilutive "result" before it can implement that plan--even if the Attorney General bears the burden of proving that "result"--is to increase further the serious federalism costs already implicated by §5. See Miller v. Johnson, 515 U. S. ___, ___ (1995) (slip op., at 26) (noting the "federalism costs exacted by §5 preclearance").
Appellants nevertheless contend that we should adopt their reading of §5 because it is supported by our decision in Beer, by the Attorney General's regulations, and by considerations of public policy. In Beer, we held that §5 prohibited only retrogressive effects and further observed that "an ameliorative new legislative apportionment cannot violate §5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." 425 U. S., at 141. Although there had been no allegation that the redistricting plan in Beer "so . . . discriminate[d] on the basis of race or color as to be unconstitutional," we cited in dicta a few cases to illustrate when a redistricting plan might be found to be constitutionally offensive. Id., at 142, n. 14. Among them was our decision in White v. Regester, 412 U.S. 755 (1973), in which we sustained a vote dilution challenge, brought under the Equal Protection Clause, to the use of multimember election districts in two Texas counties. Ibid. Appellants argue that "[b]ecause vote dilution standards under the Constitution and Section 2 were generally coextensive at the time Beer was decided, Beer's discussion meant that practices that violated Section 2 would not be entitled to preclearance under Section 5." Brief for Federal Appellant 36-37.
Even assuming, arguendo, that appellants' argument had some support in 1976, it is no longer valid today because the applicable statutory and constitutional standards have changed. Since 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the state or political subdivision acted with a discriminatory purpose. See Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion) ("Our decisions . . . have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose"); id., at 66 ("[O]nly if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment"); see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977) ("Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause"). When Congress amended §2 in 1982, it clearly expressed its desire that §2 not have an intent component, see S. Rep. No. 97-417, at 2 ("Th[e 1982] amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2"). Because now the Constitution requires a showing of intent that §2 does not, a violation of §2 is no longer a fortiori a violation of the Constitution. Congress itself has acknowledged this fact. See id., at 39 ("The Voting Rights Act is the best example of Congress' power to enact implementing legislation that goes beyond the direct prohibitions of the Constitution itself").
Justice Stevens argues that the subsequent divergence of constitutional and statutory standards is of no moment because, in his view, we "did not [in Beer] purport to distinguish between challenges brought under the Constitution and those brought under the [Voting Rights] statute." Post, at 9 (opinion dissenting in part and concurring in part). Our citation to White, he posits, incorporated White's standard into our exception for nonretrogressive apportionments that violate §5, whether or not that standard continued to coincide with the constitutional standard. In essence, Justice Stevens reads Beer as creating an exception for nonretrogressive apportionments that so discriminate on the basis of race or color as to violate any federal law that happens to coincide with what would have amounted to a constitutional violation in 1976. But this reading flatly contradicts the plain language of the exception we recognized, which applies solely to apportionments that "so discriminat[e] on the basis of race or color as to violate the Constitution." Beer, supra, at 141 (emphasis added). We cited White, not for itself, but because it embodied the current constitutional standard for a violation of the Equal Protection Clause. See also id., at 143, n. 14 (noting that New Orleans' plan did "not remotely approach a violation of the constitutional standards enunciated in" White and other cited cases) (emphasis added). When White ceased to represent the current understanding of the Constitution, a violation of its standard--even though that standard was later incorporated in §2--no longer constituted grounds for denial of preclearance under Beer.
Appellants, next claim is that we must defer to the Attorney General's regulations interpreting the Act, one of which states:
"In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retrogressive effect, but also concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended Section 2, the Attorney General shall withhold Section 5 preclearance." 28 CFR § 51.55(b)(2) (1996).
Although we normally accord the Attorney General's construction of the Voting Rights Act great deference, "we only do so if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable." Presley v. Etowah County Comm'n, 502 U.S. 491, 508 (1992). Given our longstanding interpretation of §5, see supra, at 4-7, 8-11, which Congress has declined to alter by amending the language of §5, Arkansas Best Corp. v. Commissioner, 485 U.S. 212, 222, n. 7 (1988) (placing some weight on Congress' failure to express disfavor with our 25 year interpretation of a tax statute), we believe Congress has made it sufficiently clear that a violation of §2 is not grounds in and of itself for denying preclearance under §5. That there may be some suggestion to the contrary in the Senate Report to the 1982 Voting Rights Act amendments, S. Rep. No. 97-417, supra, at 12, n. 31, does not change our view. With those amendments, Congress, among other things, renewed §5 but did so without changing its applicable standard. We doubt that Congress would depart from the settled interpretation of §5 and impose a demonstrably greater burden on the jurisdictions covered by §5, see supra, at 8, by dropping a footnote in a Senate Report instead of amending the statute itself. See Pierce v. Underwood, 487 U.S. 552, 567 (1988) ("Quite obviously, reenacting precisely the same language would be a strange way to make a change"). See also City of Lockhart, 460 U.S. 125 (1983) (reaching its holding over Justice Marshall's dissent, which raised the argument now advanced by appellants regarding this passage in the Senate Report).
Nor does the portion of the House Report cited by Justice Stevens unambiguously call for the incorporation of §2 into §5. That portion of the Report states
"many voting and election practices currently in effect are outside the scope of [§5] . . . because they were in existence before 1965. . . . Under the Voting Rights Act, whether a discriminatory practice or procedure is of recent origin affects only the mechanism that triggers relief, i.e., litigation [under §2] or preclearance [under §5]." H. R. Rep. No. 97-227, p. 28 (1981).
The obvious thrust of this passage is to establish that pre-1965 discriminatory practices are not free from scrutiny under the Voting Rights Act just because they need not be precleared under §5: Such practices might still violate §2. But to say that pre-1965 practices can be reached solely by §2 is not to say that all post-1965 changes that might violate §2 may be reached by both §2 and §5 or that "the substantive standards for §2 and §5 [are] the same," see post, at 11 (opinion dissenting in part and concurring in part). Our ultimate conclusion is also not undercut by statements found in the "postenactment legislative record," see post, at 11, n. 9, given that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304, 313 (1960). We therefore decline to give these sources controlling weight.
Appellants' final appeal is to notions of public policy. They assert that if the district court or Attorney General examined whether a covered jurisdiction's redistricting plan violates §2 at the same time it ruled on preclearance under §5, there would be no need for two separate actions and judicial resources would be conserved. Appellants are undoubtedly correct that adopting their interpretation of §5 would serve judicial economy in those cases where a §2 challenge follows a §5 proceeding. But this does not always happen, and the burden on judicial resources might actually increase if appellants' position prevailed because §2 litigation would effectively be incorporated into every §5 proceeding.
Appellants lastly argue that preclearance is an equitable remedy, obtained through a declaratory judgment action in district court, see 42 U.S.C. § 1973c or through the exercise of the Attorney General's discretion, see 28 CFR § 51.52(a) (1996). A finding that a redistricting plan violates §2 of the Act, they contend, is an equitable "defense," on the basis of which a decision maker should, in the exercise of its equitable discretion, be free to deny preclearance. This argument, however, is an attempt to obtain through equity that which the law--i.e., the settled interpretation of §5--forbids. Because "it is well established that `[c]ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law,' " INS v. Pangilinan, 486 U.S. 875, 883 (1988) (citing Hedges v. Dixon County, 150 U.S. 182, 192 (1893)), this argument must fail.
Of course, the Attorney General or a private plaintiff remains free to initiate a §2 proceeding if either believes that a jurisdiction's newly enacted voting "qualification, prerequisite, standard, practice, or procedure" may violate that section. All we hold today is that preclearance under §5 may not be denied on that basis alone.
Appellants next contend that evidence showing that a jurisdiction's redistricting plan dilutes the voting power of minorities, see supra, at 7-8, is at least relevant in a §5 proceeding because it tends to prove that the jurisdiction enacted its plan with a discriminatory "purpose." The District Court, reasoning that "[t]he line [between §2 and §5] cannot be blurred by allowing a defendant to do indirectly what it cannot do directly," 907 F. Supp., at 445, rejected this argument and held that it "will not permit section 2 evidence to prove discriminatory purpose under section 5." Ibid. Because we hold that some of this "§2 evidence" may be relevant to establish a jurisdiction's "intent to retrogress" and cannot say with confidence that the District Court considered the evidence proffered to show that the Board's reapportionment plan was dilutive, we vacate this aspect of the District Court's holding and remand. In light of this conclusion, we leave open for another day the question whether the §5 purpose inquiry ever extends beyond the search for retrogressive intent. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 465, n. 5 (1989) (declining to decide an issue that "is not necessary to our decision"). Reserving this question is particularly appropriate when, as in this case, it was not squarely addressed by the decision below or in the parties' briefs on appeal. See Brief for Federal Appellant 23; Brief for Appellant Price et. al. 31-33, 34-35; Brief for Appellee 42-43. But in doing so, we do not, contrary to Justice Stevens' view, see post, at 4 (opinion dissenting in part and concurring in part), necessarily assume that the Board enacted the Jury plan with some nonretrogressive, but nevertheless discriminatory, "purpose." The existence of such a purpose, and its relevance to §5, are issues to be decided on remand.
Although §5 warrants a denial of preclearance if a covered jurisdiction's voting change "ha[s] the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color," 42 U.S.C. § 1973c we have consistently interpreted this language in light of the purpose underlying §5--"to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities." Beer, 425 U. S., at 141. Accordingly, we have adhered to the view that the only "effect" that violates §5 is a retrogressive one. Beer, 425 U. S., at 141; City of Lockhart, 460 U. S., at 134.
Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. Rule Evid. 401. As we observed in Arlington Heights, 429 U. S., at 266, the impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions. Thus, a jurisdiction that enacts a plan having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority voting strength than a jurisdiction whose plan has no such impact. A jurisdiction that acts with an intent to dilute minority voting strength is more likely to act with an intent to worsen the position of minority voters--i.e., an intent to retrogress--than a jurisdiction acting with no intent to dilute. The fact that a plan has a dilutive impact therefore makes it "more probable" that the jurisdiction adopting that plan acted with an intent to retrogress than "it would be without the evidence." To be sure, the link between dilutive impact and intent to retrogress is far from direct, but "the basic standard of relevance . . . is a liberal one," Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993), and one we think is met here.
That evidence of a plan's dilutive impact may be relevant to the §5 purpose inquiry does not, of course, mean that such evidence is dispositive of that inquiry. In fact, we have previously observed that a jurisdiction's single decision to choose a redistricting plan that has a dilutive impact does not, without more, suffice to establish that the jurisdiction acted with a discriminatory purpose. Shaw v. Hunt, 517 U. S. ___, ___, n. 6 (slip op., at 14) ("[W]e doubt that a showing of discriminatory effect under §2, alone, could support a claim of discriminatory purpose under §5"). This is true whether the jurisdiction chose the more dilutive plan because it better comported with its traditional districting principles, see Miller v. Johnson, 515 U. S., at ___ (slip op., at 22) (rejecting argument that a jurisdiction's failure to adopt the plan with the greatest possible number of majority black districts establishes that it acted with a discriminatory purpose); Shaw, supra, at ___ (slip op., at 12-13) (same), or if it chose the plan for no reason at all. Indeed, if a plan's dilutive impact were dispositive, we would effectively incorporate §2 into §5, which is a result we find unsatisfactory no matter how it is packaged. See Part II, supra.
As our discussion illustrates, assessing a jurisdiction's motivation in enacting voting changes is a complex task requiring a "sensitive inquiry into such circumstantial and direct evidence as may be available." Arlington Heights, 429 U. S., at 266. In conducting this inquiry, courts should look to our decision in Arlington Heights for guidance. There, we set forth a framework for analyzing "whether invidious discriminatory purpose was a motivating factor" in a government body's decision making. Ibid. In addition to serving as the framework for examining discriminatory purpose in cases brought under the Equal Protection Clause for over two decades, see, e. g., Shaw v. Reno, 509 U.S. 630, 644 (1993) (citing Arlington Heights standard in context of Equal Protection Clause challenge to racial gerrymander of districts); Rogers v. Moore, 458 U.S. 613, 618 (1982) (evaluating vote dilution claim under Equal Protection Clause using Arlington Heights test); Mobile, 446 U. S., at 70-74 (same), the Arlington Heights framework has also been used, at least in part, to evaluate purpose in our previous §5 cases. See Pleasant Grove, 479 U. S., at 469-470 (considering city's history in rejecting annexation of black neighborhood and its departure from normal procedures when calculating costs of annexation alternatives); see also Busbee v. Smith, 549 F. Supp. 494, 516-517 (DC 1982), summarily aff'd, 459 U.S. 1166 (1983) (referring to Arlington Heights test); Port Arthur v. United States, 517 F. Supp. 987, 1019, aff'd, 459 U.S. 159 (1982) (same).
The "important starting point" for assessing discriminatory intent under Arlington Heights is "the impact of the official action whether it `bears more heavily on one race than another.' " 429 U. S., at 266 (citing Washington v. Davis, 426 U.S. 229, 242 (1976)). In a §5 case, "impact" might include a plan's retrogressive effect and, for the reasons discussed above, its dilutive impact. Other considerations relevant to the purpose inquiry include, among other things, "the historical background of the [jurisdiction's] decision"; "[t]he specific sequence of events leading up to the challenged decision"; "[d]epartures from the normal procedural sequence"; and "[t]he legislative or administrative history, especially . . . [any] contemporary statements by members of the decisionmaking body." Id., at 266-268.
We are unable to determine from the District Court's opinion in this case whether it deemed irrelevant all evidence of the dilutive impact of the redistricting plan adopted by the Board. At one point, the District Court correctly stated that "the adoption of one nonretrogressive plan rather than another nonretrogressive plan that contains more majority black districts cannot by itself give rise to the inference of discriminatory intent." 907 F. Supp., at 450 (emphasis added). This passage implies that the District Court believed that the existence of less dilutive options was at least relevant to, though not dispositive of, its purpose inquiry. While this language is consistent with our holding today, see supra, at 15-16, the District Court also declared that "we will not permit section 2 evidence to prove discriminatory purpose under section 5." Ibid. With this statement, the District Court appears to endorse the notion that evidence of dilutive impact is irrelevant even to an inquiry into retrogressive intent, a notion we reject. See supra, at 15-16.
The Board contends that the District Court actually "presumed that white majority districts had [a dilutive] effect," Brief for Appellee 35, and "cut directly to the dispositive question `started' by the existence of [a dilutive] impact: did the Board have `legitimate, nondiscriminatory motives' for adopting its plan[?]" Id., at 33. Even if the Board were correct, the District Court gave no indication that it was assuming the plan's dilutive effect, and we hesitate to attribute to the District Court a rationale it might not have employed. Because we are not satisfied that the District Court considered evidence of the dilutive impact of the Board's redistricting plan, we vacate this aspect of the District Court's opinion. The District Court will have the opportunity to apply the Arlington Heights test on remand as well as to address appellants' additional arguments that it erred in refusing to consider evidence that the Board was in violation of an ongoing injunction "to `remedy any remaining vestiges of [a] dual [school] system'," 907 F. Supp., at 449, n. 18.
* * *The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this decision.
It is so ordered.