Beer v. United States

425 U.S. 130, 96 S. Ct. 1357, 47 L. Ed. 2d 629, 1976 U.S. LEXIS 33

• Court: Supreme Court of the United States
• Decided: March 30, 1976
• Docket: 73-1869
• Status: Published

Opinions

Mr. Justice Stewart

delivered the opinion of the Court.

Section 5 of the Voting Rights Act of 1965 ¹ prohibits a State or political subdivision subject to § 4 of the Act² from enforcing “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,” unless it has obtained a declaratory-judgment from the District Court for the District of Columbia that such 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” or has submitted the proposed change to the Attorney General and the Attorney General has not objected to it. The constitutionality of this procedure was upheld in South Carolina v. Katzenbach, 383 U. S. 301, and it is now well established that § 5 is applicable when a State or political subdivision adopts a legislative reapportionment plan. Allen v. State Board of Elections, 393 U. S. 544; Georgia v. United States, 411 U. S. 526.

The city of New Orleans brought this suit under § 5 seeking a judgment declaring that a reapportionment of New Orleans’ councilmanic districts did not have the purpose or effect of denying or abridging the right to vote on account of race or color.³ The District Court entered a judgment of dismissal, holding that the new reapportionment plan would have the effect of abridging the voting rights of New Orleans’ Negro citizens. 374 F. Supp. 363. The city appealed the judgment to this Court, claiming that the District Court used an incorrect standard in assessing the effect of the reapportionment in this § 5 suit. We noted probable jurisdiction of the appeal. 419 U. S. 822.

I

New Orleans is a city of almost 600,000 people. Some 55% of that population is white and the remaining 45% is Negro. Some 65% of the registered voters are white, and the remaining 35% are Negro.⁴ In 1954, New Orleans adopted a mayor-council form of government. Since that time the municipal charter has provided that the city council is to consist of seven members, one to be elected from each of five councilmanic districts, and two to be elected by the voters of the city at large. The 1954 charter also requires an adjustment of the boundaries of the five single-member councilmanic districts following each decennial census to reflect population shifts among the districts.

In 1961, the city council redistricted the city based on the 1960 census figures. That reapportionment plan established four districts that stretched from the edge of Lake Pontchartrain on the north side of the city to the Mississippi River on the city’s south side. The fifth district was wedge shaped and encompassed the city’s downtown area. In one of these councilmanic districts, Negroes constituted a majority’ of the population, but only about half of the registered voters. In the other four districts white voters clearly outnumbered Negro voters. No Negro was elected to the New Orleans City Council during the decade from 1960 to 1970.

After receipt of the 1970 census figures the city council adopted a reapportionment plan (Plan I) that continued the basic north-to-south pattern of councilmanic districts combined with a wedge-shaped, downtown district. Under Plan I Negroes constituted a majority of the population in two districts, but they did not make up a majority of registered voters in any district. The largest percentage of Negro voters in a single district under Plan I was 45.2%. When the city submitted Plan I to the Attorney General pursuant to § 5, he objected to it, stating that it appeared to “dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts.” He also expressed the view that “the district lines [were not] drawn as they [were] because of any compelling governmental need” and that the district lines did “not reflect numeric population configurations or considerations of district compactness or regularity of shape.”

Even before the Attorney General objected to Plan I, the city authorities had commenced work on a second plan — Plan II.⁵ That plan followed the general north-to-south districting pattern common to the 1961 apportionment and Plan I.⁶ It produced Negro population majorities in two districts and a Negro voter majority (52.6%) in one district. When Plan II was submitted to the Attorney General, he posed the same objections to it that he had raised to Plan I. In addition, he noted that “the predominantly black neighborhoods in the city are located generally in an east to west progression,” and pointed out that the use of north-to-south districts in such a situation almost inevitably would have the effect of diluting the maximum potential impact of the Negro vote. Following the rejection by the Attorney General of Plan II, the city brought this declaratory judgment action in the United States District Court for the District of Columbia.

The District Court concluded that Plan II would have the effect of abridging the right to vote on account of race or color.⁷ It calculated that if Negroes could elect city councilmen in proportion to their share of the city’s registered voters, they would be able to choose 2.42 of the city’s seven councilmen, and, if in proportion to their share of the city’s population, to choose 3.15 councilmen.⁸ But under Plan II the District Court concluded that, since New Orleans’ elections had been marked by bloc voting along racial lines, Negroes would probably be able to elect only one councilman — the candidate from the one councilmanic district in which a majority of the voters were Negroes. This difference between mathematical potential and predicted, reality was such that “the burden in the case at bar was at least to demonstrate that nothing but the redistricting proposed by Plan II was feasible.” 374 F. Supp., at 393. The court concluded that “[t]he City has not made that sort of demonstration; indeed, it was conceded at trial that neither that plan nor any of its variations was the City’s sole available alternative.” Ibid.9

As a separate and independent ground for rejecting Plan II, the District Court held that the failure of the plan to alter the city charter provision establishing two at-large seats had the effect in itself of “abridging the right to vote ... on account of race or color.” As the court put it: “[T]he City has not supported the choice of at-large elections by any consideration which would satisfy the standard of compelling governmental interest, or the need to demonstrate the improbability of its realization through the use of single-member districts. These evaluations compel the conclusion that the feature of the city’s electoral scheme by which two councilmen are selected at large has the effect of impermissibly minimizing the vote of its black citizens; and the further conclusion that for this additional reason the city’s redistricting plan does not pass muster.” Id., at 402. (Footnotes omitted.)

The District Court therefore refused to allow Plan II to go into effect. As a result there have been no coun-cilmanic elections in New Orleans since 1970, and the councilmen elected at that time (or their appointed successors) have remained in office ever since.

II

A

The appellants urge, and the United States on reargument of this case has conceded, that the District Court was mistaken in holding that Plan II could be rejected under § 5 solely because it did not eliminate the two at-large councilmanic seats that had existed since 1954. The appellants and the United States are correct in their interpretation of the statute in this regard.

The language of § 5 clearly provides that it applies only to proposed changes in voting procedures. “[Discriminatory practices . . . instituted prior to November 1964 . . . are not subject to the requirement of pre-clearance [under § 5].” U. S. Commission on Civil Rights, The Voting Rights Act: Ten Years After, p. 347. The ordinance that adopted Plan II made no reference to the at-large councilmanic seats. Indeed, since those seats had been established in 1954 by the city charter, an ordinance could not have altered them; any change in the charter would have required approval by the city’s voters. The at-large seats, having existed without change since 1954, were not subject to review in this proceeding under § 5.¹⁰

B

The principal argument made by the appellants in this Court is that the District Court erred in concluding that the makeup of the five geographic council-manic districts under Plan II would have the effect of abridging voting rights on account of race or color. In evaluating this claim it is important to note at the outset that the question is not one of constitutional law, but of statutory construction.¹¹ A determination of when a legislative reapportionment has “the effect of denying or abridging the right to vote on account of race or color,” must depend, therefore, upon the intent of Congress in enacting the Voting Rights Act and specifically § 5.

The legislative history reveals that the basic purpose of Congress in enacting the Voting Rights Act was “to rid the country of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U. S., at 315. Section 5 was intended to play an important role in achieving that goal:

“Section 5 was 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. That practice had been possible because each new law remained in effect until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory. . . . 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.’ ” H. R. Rep. No. 94-196, pp. 57-58. (Footnotes omitted.)

See also H. R. Rep. No. 439, 89th Cong., 1st Sess., 9-11, 26; S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 6-9, 24; H. R. Rep. No. 91-397, pp. 6-8; H. R. Rep. No. 94-196, pp. 8-11, 57-60; S. Rep. No. 94-295, pp. 15-19; South Carolina v. Katzenbach, supra, at 335.

By prohibiting the enforcement of a voting-procedure change until it has been demonstrated to the United States Department of Justice or to a three-judge federal court that the change does not have a discriminatory effect, Congress desired to prevent States from “undo-ting] or defeat [ing] the rights recently won” by Negroes. H. R. Rep. No. 91-397, p. 8. Section 5 was intended “to insure that [the gains thus far achieved in minority political participation] shall not be destroyed through new [discriminatory] procedures and techniques.” S. Rep. No. 94-295, p. 19.

When it adopted a 7-year extension of the Voting Rights Act in 1975, Congress explicitly stated that “the standard [under § 5] can only be fully satisfied by determining on the basis of the facts found by the Attorney General [or the District Court] to be true whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting . . . .” H. R. Rep. No. 94-196, p. 60 (emphasis added) ,¹² In other words the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.

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. We conclude, therefore, that such 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.

The application of this standard to the facts of the present case is straightforward. Under the apportionment of 1961 none of the five councilmanic districts had a clear Negro majority of registered voters, and no Negro has been elected to the New Orleans City Council while that apportionment system has been in effect. Under Plan II, by contrast, Negroes will constitute a majority of the population in two of the five districts and a clear majority of the registered voters in one of them. Thus, there is every reason to predict, upon the District Court’s hypothesis of bloc voting, that at least one and perhaps two Negroes may well be elected to the council under Plan II.¹³ It was therefore error for the District Court to conclude that Plan II “will. . . have the effect of denying or abridging the right to vote on account of race or color” within the meaning of § 5 of the Voting Rights Act.¹⁴

Accordingly, the judgment of the District Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Stevens took no part in the consideration or decision of this case.

1 Section 5 provides:

"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the first sentence of section 1973b (b) of this title 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, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the second sentence of section 1973b (b) of this title 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, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the third sentence of section 1973b (b) of this title 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, 1972, 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, or in contravention of the guarantees set forth in section 1973b (f) (2) of this title, 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, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor 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. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. 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 and any appeal shall lie to the Supreme Court.” 79 Stat. 439, as amended, 89 Stat. 402, 404, 42 U. S. C. § 1973c (1970 ed., Supp. V).

2 42 U. S. C. § 1973b (1970 ed. and Supp. V). Louisiana and its political subdivisions are subject to the provisions of §4. 30 Fed. Reg. 9897 (1965).

3 The action was actually brought on behalf of the city of New Orleans by six of the seven members of its city council. For convenience the appellants sometimes are referred to in this opinion as New Orleans or the city.

The defendants in the suit were the United States and the Attorney General of the United States. A group of Negro voters of New Orleans intervened on the side of the defendants in the District Court.

4 The difference in the two figures is due in part to the fact that proportionately more whites of voting age are registered to vote than are Negroes and in part to the fact that the age structures of the white and Negro populations of New Orleans differ significantly — 72.3% of the white population is of voting age, but only 57.1% of the Negro population is of voting age. See U. S. Civil Rights Commission, The Voting Rights Act: Ten Years After, pp. 368, 383.

5 The decision to draft a new plan was in large part attributable to the opposition to Plan I expressed by the residents of Algiers— that part of New Orleans located south of the Mississippi River. The residents of Algiers have a common interest in promoting the construction of an additional bridge across the river. They had always been represented by one councilman, and they opposed Plan I primarily because it divided Algiers among three council-manic districts.

6 The opposition to Plan I in Algiers, see n. 5, supra, was quieted in Plan II by placing all of that section of the city in one council-manic district.

7 The District Court did not address the question whether Plan II was adopted with such a ‘'purpose.” See n. 1, supra.

8 This Court has, of course, rejected the proposition that members of a minority group have a federal right to be represented in legislative bodies in proportion to their number in the general population. See Whitcomb v. Chavis, 403 U. S. 124, 149. It is worth noting, however, that had the District Court applied its mathematical calculations to the five seats that were properly subject to its scrutiny, see Part II-A of text, infra, it would have concluded on the basis of registered voter figures that Negroes in New Orleans had a theoretical potential of electing 1.7 of the five eouncilmen. A realistic prediction would seem to be that under the actual operation of Plan II at least one and perhaps two Negro eouncilmen would in fact be elected. See infra, at 142.

9 At various points in its 40-page opinion the District Court described its understanding of the statutory criteria in terms somewhat different from those quoted in the text above. Since, as will hereafter appear, our understanding of the meaning of § 5 does not in any event coincide with that of the District Court, no purpose would be served by isolating and separately examining the various verbalizations of the statutory criteria contained in its opinion.

10 In reaching this conclusion, we do not decide the question reserved in Georgia v. United States, 411 U. S. 526, 535 n. 7, whether a district in a proposed legislative reapportionment plan that is identical to a district in the previously existing apportionment may be subject to review under § 5. The at-large seats in the present case were not even part of the 1961 plan, let alone of Plan II.

11 This Court has not before dealt with the question of what criteria a legislative reapportionment plan must satisfy under § 5. Last Term in City of Richmond v. United States, 422 U. S. 358, the Court had to decide under what circumstances § 5 would permit a city to annex additional territory when that annexation would have the effect of changing the city’s Negro population from a majority into a minority. The Court held that the annexation should be approved under the “effect” aspect of § 5 if the system for electing councilmen would likely produce results that “fairly reflect [ed] the strength of the Negro community as it exists after the annexation.” 422 U. S., at 371. The City of Richmond case thus decided when a change with an adverse impact on previous Negro voting power met the “effect” standard of § 5. The present case, by contrast, involves a change with no such adverse impact upon the former voting power of Negroes.

12 Cf. MR. Justice Brennan's dissenting opinion in City of Richmond v. United States, supra, at 388: “I take to be the fundamental objective of § 5 . . . the protection of present levels of voting effectiveness for the black population.” (Emphasis in original.)

13 The intervenors have advised us of statistics indicating that as of 1974, the percentage of Negro registered voters in the city as a whole increased to 38.2%. Assuming the accuracy of these estimates, and that the increase has been proportionate in each council-manic district, it is quite possible that by this time not only a majority of the population but also a majority of the registered voters in two of the Plan II districts are Negroes. See Taylor v. McKeithen, 499 F. 2d 893, 896 (CA5).

14 It is possible that a legislative reapportionment could be a substantial improvement over its predecessor in terms of lessening racial discrimination, and yet nonetheless continue so to discriminate on the basis of race or color as to be unconstitutional. The United States has made no claim that Plan II suffers from any such disability, nor could it rationally do bo.

There is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth Amendment. Cf. Wright v. Rockefeller, 376 U. S. 52. The case closest to so holding is Gomillion v. Lightfoot, 364 U. S. 339, in which the Court found that allegations of racially motivated gerrymandering of a municipality’s political boundaries stated a claim under that Amendment. The many cases in this Court involving the Fourteenth Amendment’s “one man, one vote” standard are not relevant here. See Reynolds v. Sims, 377 U. S. 533. But in at least four cases the Court has considered claims that legislative apportion-ments violated the Fourteenth Amendment rights of identifiable racial or ethnic minorities. See Fortson v. Dorsey, 379 U. S. 433, 439; Burns v. Richardson, 384 U. S. 73, 86-89; Whitcomb v. Chavis, 403 U. S. 124, 149; White v. Regester, 412 U. S. 755. Plan II does not remotely approach a violation of the constitutional standards enunciated in those cases.