NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MORSE et al. v. REPUBLICAN PARTY OF VIRGINIA et al.

appeal from the united states district court for the western district of virginia

No. 94-203. Argued October 2, 1995 -- Decided March 27, 1996

Appellee Republican Party of Virginia (Party) invited all registered Virginia voters willing to declare their support for the Party's nominees at the 1994 general election to become delegates to a convention to nominate the Party's candidate for United States Senator upon payment of a registration fee. Appellants Bartholomew and Enderson desired, and were qualified, to become delegates, but were rejected because they refused to pay the fee; appellant Morse paid the fee with funds advanced by supporters of the eventual nominee. Alleging, inter alia, that the imposition of the fee violated §§5 and 10 of the Voting Rights Act of 1965, appellants filed a complaint seeking an injunction preventing the Party from imposing the fee and ordering it to return the fee paid by Morse. The three judge District Court convened to consider the §5 and §10 claims granted the Party's motion to dismiss, concluding that the "general rule" that §5 covers political parties to the extent that they are empowered to conduct primary elections is inapplicable to the selection of nominating convention delegates under a regulation promulgated by the Attorney General of the United States and under this Court's summary decision in Williams v. Democratic Party of Georgia, 409 U.S. 809; and that only the Attorney General has authority to enforce §10.

Held: The judgment is reversed, and the case is remanded.

853 F. Supp. 212, reversed and remanded.

Justice Stevens, joined by Justice Ginsburg, concluded:

1. The Party's decision to exact the registration fee was subject to §5, which, among other things, prohibits Virginia and other covered jurisdictions from enacting or enforcing "any voting qualification or prerequisite . . . different from that in force . . . on" a specified date unless the change has been precleared by the Attorney General. Pp. 4-44.

(a) The District Court erred in its application of the Attorney General's regulation, which unambiguously requires §5 preclearance when a political party makes a change affecting voting if, inter alia, the party is "acting under authority explicitly or implicitly granted by a covered jurisdiction." Because Virginia law provides that the nominees of the two major political parties shall automatically appear on the general election ballot, without the need to declare their candidacy or to demonstrate their support with a nominating petition, and authorizes the two parties to determine for themselves how they will select their nominees, whether by primary, nominating convention, or some other method, the Party "act[ed] under authority" of Virginia when it picked its candidate at the convention and certified the nominee for automatic placement on the general election ballot. Cf. Smith v. Allwright, 321 U.S. 649, 653, n. 6, 660, 663. Because the conclusion that the Party's activities fall directly within the regulation's scope is not contradicted, but is in fact supported, by this Court's narrow holding in Williams, supra, the District Court also erred when it based its dismissal of appellants' complaint on that case. Pp. 6-16.

(b) The Act's language and structure compel the conclusion that §5 of its own force covers changes such as the Party's filing fee when the electoral practice at issue is a nominating convention. This Court has consistently construed the Act to require preclearance of any change bearing on the "effectiveness" of a vote cast in a primary, special, or general election, including changes in the composition of the electorate that votes for a particular office. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 570. By limiting the opportunity for voters to participate in the convention, the Party's filing 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. That §5 covers nonprimary nomination methods is also supported by Whitley v. Williams, decided with Allen, supra; by the text and legislative history of §14, which defines the terms "vote" or "voting" to include "all action necessary to make a vote effective in any . . . election," including the selection of persons for "party office"; and by the text of §2, which bans any racially discriminatory voting qualification or prerequisite if "the political processes leading to nomination or election . . . are not equally open to . . . [protected group] members." (Emphasis added.) Pp. 16-23.

(c) Consideration of the historical background which informed the 89th Congress when it passed the Act--particularly Terry v. Adams, 345 U.S. 461, and the other "White Primary Cases," in which the Court applied the Fifteenth Amendment to strike down a succession of measures by Texas authorities to exclude minority voters from their nomination processes--confirms the conclusion that §5 applies here. None of the reasons offered to support appellees' contention that the White Primary Cases have no bearing on the Act's proper interpretation--(1) that the Party's convention did not operate in a racially discriminatory manner; (2) that, although the Act was meant to enforce the Fifteenth Amendment, the 89th Congress did not intend to legislate to that Amendment's "outer limit"; and (3) that present day Virginia is not a one party Commonwealth, unlike post-Reconstruction Texas--is persuasive. Pp. 23-33.

(d) None of the dissents' arguments for rejecting the foregoing construction of §5-that a political party is not a "State or political subdivision" within §5's literal meaning because it is not a governmental unit; that the Court should not defer to the Attorney General's regulation when construing §5's coverage; that a major political party is not a "state actor" under the Court's decisions unless its nominees are virtually certain to win the general election; and that the construction amounts to adoption of a "blanket rule" that all political parties must preclear all of their internal procedures--is convincing. Pp. 33-40.

(e) Appellees' practical objections to the foregoing construction of §5--(1) that it will create an administrative nightmare for political parties and the Justice Department, and (2) that it threatens to abridge First Amendment associational rights--are rejected. Pp. 41-44.

2. Section 10 of the Act--which does not expressly mention private actions when it authorizes the Attorney General to file suit against racially motivated poll taxes--does not preclude appellants from challenging the Party's registration fee as a prohibited poll tax. Evaluation of congressional action must take into account its contemporary legal context. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 698-699. Because the Act was passed against a "backdrop" of decisions in which implied causes of action were regularly found, see id., at 698, and nn. 22-23, private parties may sue to enforce §10, just as they may enforce §5, see Allen, supra, at 556, 557, n. 23, or §2, see, e.g., Chisom v. Roemer, 501 U.S. 380. Appellees' argument to the contrary was rejected in Allen, supra, at 556, n. 20, and is also refuted by §§3 and 14(e) of the Act, both of which recognize the existence of a private §10 right of action. Appellees' argument that a delegate registration fee is not a poll tax addresses the merits and should be considered by the District Court in the first instance. Pp. 44-50.

Justice Breyer, joined by Justice O'Connor and Justice Souter, concluded:

1. In light of the legislative history demonstrating that, in 1965, Congress was well aware of the White Primary Cases, the failure of case by case enforcement of the Fifteenth Amendment, and Mississippi's then recent efforts to use an "all white" convention process to help nominate a Democratic candidate for President, and that the Act's "party office" provision was adopted to cover the latter type of situation, the Act cannot be interpreted to contain a loophole excluding all political party activity, but must be read to apply to certain convention based practices and procedures with respect to voting. That is as far as the Court need go to answer the statutory question presented by this case. Indeed, it is as far as the Court should go, given the difficult First Amendment questions about the extent to which the Federal Government, through preclearance procedures, can regulate the workings of a political party convention, and about the limits imposed by the state action doctrine. Such questions are properly left for a case that squarely presents them. The fee imposed here, however, is within the scope of §5, and well outside the area of greatest associational concern. Pp. 1-6.

2. Congress intended to establish a private right of action to enforce §10, no less than it did to enforce §§2 and 5. See Allen v. State Bd. of Elections, 393 U.S. 544, 556-557. Justice Breyer expressed no view as to the merits of the underlying §10 claim. Pp. 6-7.

Stevens, J., announced the judgment of the Court and delivered an opinion, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in the judgment, in which O'Connor and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, and in which Kennedy, J., joined as to Part II.