dissenting:
Considering an entire state legislative mechanism in the abstract without any challenged conduct or legislative act, the majority strikes down as unconstitutional South Carolina’s legislative delegation system. This heavy-handed intrusion into the heart of state government represents an unwarranted extension of federal judicial power, justified only by generalities and irrelevant history but certainly not by the U.S. Constitution.
In South Carolina, state legislators are elected in conformance with the one-person, one-vote principles announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and the parties do not dispute this. Legislators so *282elected are assigned by law to membership in county-based legislative delegations, each of which is composed of the legislators'whose districts he in whole or in part within that county. Thus, there are 46 legislative delegations, one for each county. Delegation membership- is not a separate political office to which members are elected.
As I show below, under current state law as authoritatively construed by the state supreme court, legislative delegations in South Carolina can exercise no legislative or executive power. They function only (1) to receive information related to their members’ duties as legislators in the General Assembly, (2) to make non-binding recommendations to governmental officials, and (3) to make appointments to local administrative positions. Even assuming that legislators making up these delegations represent different sized populations, none of these functions performed by the legislative delegations is sufficient to trigger the principles of Reynolds. On the contrary, each function has been authorized by existing Supreme Court case law to be performed by a body that does not meet one-person, one-vote scrutiny.
Without a rigorous examination of the specific functions of these legislative delegations, the majority simply sweeps the details under a broad and inaccurate generalization that a prioñ makes the delegations unconstitutional, concluding simply that legislative delegations are “elected bodies that exercise governmental functions,” and therefore they must comply with the strictures of Reynolds. Ante, at 281. To justify its generalization, the majority relies on alleged ultra vires conduct or on historical functions of legislative delegations, reaching back into the nineteenth century to apply a gloss totally inconsistent with how they function today in compliance with state law.
The citizens of South Carolina can be genuinely and legitimately troubled by this awkward and unnecessary exercise of federal power. For the reasons discussed below, I dissent.
I
To begin with, the majority has failed, in my view, to identify precisely what it is that we are called upon to review. While it sets out to evaluate the legislative delegation system as established by law, it considers claims of ultra vires conduct to ignore standing state supreme court case law and uses that conduct to strike down the entire system. But the plaintiffs in this case do not challenge any particular act of a legislative delegation, and thus, this is not a case in which we evaluate whether a governmental body acted within its power or not. Because the plaintiffs challenge the very existence and structure of the entire system,.we must examine what legislative delegations are. To do so, we must look at how the delegations are constituted and what powers they are authorized to wield under South Carolina law. Only after we determine what the nature of these legislative delegations are under state law can we address whether, under federal law, they violate the Fourteenth Amendment to the U.S. Constitution.
While the majority is correct to point out that through much of this century, legislative delegations from each county were the primary form of local government in South Carolina,1 this historical fact, without more, is not relevant to their current role. In 1973, the South Carolina Constitution was amended to provide for separately elected county governments, and in 1975, the South Carolina General Assembly passed the Home Rule Act, *283S.C.Code § 4-9-10, et seq., which transferred most of the legislative delegations’ powers to the new county governments. See S.C.Code § 4-9-30. Even before this legislatively-created power shift, however, the delegations had been losing power through a series of judicial constructions of the state constitution. In 1971, the South Carolina Supreme Court held that legislative delegations could not wield the power to approve or disapprove budgets, thus rendering unenforceable any statute that purported to grant such power. See Gould v. Barton, 256 S.C. 175, 181 S.E.2d 662, 674 (1971). The next year, the state supreme court went further, holding that no legislative Junctions may constitutionally be performed by the delegations. See Gunter v. Blanton, 259 S.C. 436, 192 S.E.2d 473, 475 (1972) (delegation members “may exercise legislative power only as members of the General Assembly”). In 1980, the state supreme court completed its redefinition of the once-powerful delegations, striking down a delegation’s power to approve or disapprove tax increases, and holding that legislative delegations can never wield any executive powers. See Aiken County Bd. of Educ. v. Knotts, 274 S.C. 144, 262 S.E.2d 14, 17 (1980). Thus, under South Carolina law, legislative delegations may exercise neither legislative functions nor executive power, and the South Carolina courts have consistently policed these prohibitions. See, e.g., Thomas v. Cooper River Park, 322 S.C. 32, 471 S.E.2d 170, 171-72 (1996); Tucker v. South Carolina Dep’t of Highways, 309 S.C. 395, 424 S.E.2d 468, 469 (1992) (“We have long held that legislative delegates may exercise legislative power only as members of the General Assembly enacting legislation [,and] [ajction by a legislative delegation pursuant to a complete law [is executive] and is therefore constitutionally invalid”).
Rather than accept the state’s highest court’s statement of what powers the legislative delegations possess and assume that the state complies with its law, the majority relies selectively on the parties’ competing claims and conflicting characterizations of stipulations about what the state law is and how it is to be interpreted. Proceeding with the same lack of foundation in its analysis of state law, the majority maintains, “we must consider the powers presently exercised by the delegations without regard to whether those powers have been or would be ruled unconstitutional by the state supreme court.” Ante, at 276. The majority then assumes that legislative delegations exercise power in violation of their own constitution and Supreme Court precedents because “nothing in the record suggests that the delegations have limited their activities in this manner.” Ante, at 277. Assuming — without any record support or district court finding — that legislative delegations therefore perform functions beyond those authorized by South Carolina state law as interpreted by the South Carolina Supreme Court, the majority concludes that what the legislative delegations do amounts to “governmental functions” requiring one-person, one-vote scrutiny. Apart from the fact that no specific conduct is before us, whether ultra vires or not, the logic for the majority’s conclusion is long lost in its posited hypo-theticals and unfounded assumptions.
The majority makes much of a stipulation agreed to by some of the parties that county legislative delegations “perform numerous and various general county governmental functions,” maintaining that this stipulation “would seem to resolve the question of whether the delegations perform governmental functions: the State has conceded that they do.” Ante, at 275. The majority then concludes that this stipulation that legislative delegations do in fact perform governmental functions “presents an unanswerable obstacle to our dissenting colleague’s theory.” Ante, at 278. A closer look at the stipulation, however, reveals that the majority’s entire analysis is built on a house of cards.
First, the South Carolina House of Representatives and the Speaker of the House, *284a majority of the defendants in number, refused to stipulate to the characterization that the legislative delegations’ powers were “governmental.” See J.A. 184. Second, the stipulation is nothing more than a purported characterization of “functions prescribed by state law.” Not only are these not facts on which to base a constitutional holding, they are not facts at all. They are purported summaries of state statutes agreed to by some of the parties. The statutes themselves, which are attached to the stipulation, best speak for what is authorized. Finally, even a review of the state statutes themselves cannot be the end of the analysis because the South Carolina Supreme Court has ruled that legislative delegations may not perform some of the functions authorized by these statutes. Thus, for example, whilq a review of these statutes would reveal that some legislative delegations can tax and set budgets, the Supreme Court of South Carolina has ruled that the legislative delegation may not exercise that power. See Aiken County Bd., 262 S.E.2d at 17.
Thus, it becomes apparent that in relying on a stipulated characterization of state statutes, the majority rests on little more than hypothesis and assumption. By engaging in such speculation about how legislative delegations conduct themselves, the majority rejects the appellants’ own limitations on the arguments they raise in this case. As the appellants stated in their brief:
Defendants’ argument that plaintiffs are challenging “the actions of legislative delegations,” or “asking for an inquiry into ‘how the legislature actually works in practice’ ” is factually incorrect and serves only to obscure the nature of plaintiffs’ claims. Plaintiffs do not challenge any of the powers exercised by legislative delegations.
What is before us is the constitutionality of the legislative delegation system as established under South Carolina law.
A federal court reviewing the constitutionality of the system cannot, without particularized conduct at issue, reject the South Carolina courts’ definition of the legislative delegation system. The South Carolina constitution, as interpreted by the South Carolina Supreme Court, allows legislative delegations only three “powers”: (1) delegations can be granted the power to receive information relevant to the members’ legislative duties in the General Assembly, see Spartanburg County v. Miller, 135 S.C. 348, 132 S.E. 673 (1924); (2) delegations can be granted the power to make non-binding recommendations, see Tucker v. South Carolina Dep’t of Highways, 314 S.C. 131, 442 S.E.2d 171, 173 (1994); Crow v. McAlpine, 277 S.C. 240, 285 S.E.2d 355, 357 (1981); and (3) delegations can be granted the power to make appointments to local governmental offices, see Tucker, 442 S.E.2d at 172.
Once we are given the state-established scope of legislative delegations’ powers, it then becomes our duty to determine whether this state governmental institution, possessing these defined powers, is subject to the one-person, one-vote requirement of federal law as elaborated in Reynolds and its progeny. The majority rejects this method of analysis, claiming that legislative delegations should be judged on powers that they purportedly exercise rather than on the powers that they legally possess. It argues that governmental action that violates a state constitution can also violate the federal constitution, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Home Tel. & Tel. v. City of Los Angeles, 227 U.S. 278, 287, 33 S.Ct. 312, 57 L.Ed. 510 (1913). While I fully agree with this principle, it is not applicable to the case before us because the plaintiffs challenge the entire system in the abstract rather than a particular, allegedly ultra vires act.
To take the majority’s method a step further, when a court concludes that an ultra vires act of a state or local govern*285mental body is unconstitutional, it surely cannot use that finding as the basis for striking down the underlying governmental body. In short, striking down an ultra vires act does not authorize us to strike down as unconstitutional the existence of the body that performed the act. But since we have no particular ultra vires acts before us, the majority should have constrained itself to review legislative delegations as constituted under South Carolina law.
If we accept the South Carolina Supreme Court’s pronouncements prohibiting legislative delegations from exercising legislative and executive powers and authorizing them only to receive information auxiliary to legislative duties, to make nonbinding recommendations, and to make appointments to local governmental offices, then we must determine whether any of these powers is sufficient to trigger one-person, one-vote scrutiny. This is the task at hand which the majority has refused to address.
II
Analyzing the legislative delegations as they are constituted under state law, I find that'the delegations do not wield any power that would subject them to the federal limitation of one person, one vote. While the majority cites Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), for the proposition that any elected body performing “governmental functions” is subject to the one-person, one-vote requirement, Supreme Court precedent constrains us to interpret “governmental functions” to include only legislative and executive powers — the precise powers that the legislative.delegations in South Carolina are not allowed to wield. None of the three powers that legislative delegations are authorized to exercise trigger one-person, one-vote analysis under Supreme Court precedent.
The legislative delegations’ first power is the power to receive information relevant to the members’ duties as legislators in the General Assembly. Because this authority can take the form of the power to conduct an audit of a county government, see Miller, 132 S.E. at 677, something that a private party would not be allowed to do, it could, in the broadest sense, be considered to be “governmental.” The power to receive information incidental to a legislative function, however, is not a “governmental power” as that term is used in the context of the constitutional limitation of Reynolds. The Supreme Court has long recognized that the power to receive information, including the power to issue subpoenas and hold noncompliers in contempt, “is an essential and. appropriate auxiliary to the legislative function,” and so may be wielded outside the normal constitutional structure. McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 71 L.Ed. 580 (1927) (emphasis added). The Court held that such auxiliary power may be constitutionally exercised by a single house of Congress. See id.; see also Morrison v. Olson, 487 U.S. 654, 694, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). This is so, even though Congress may exercise legislative power only through the constitutionally prescribed manner of passage by both houses and presentment to the President, see Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), and even though Congress may never exercise executive power, see INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Accordingly, the power to receive information incidental to a legislative function is not, in itself, legislative or executive, and it can be wielded in ways that “governmental powers” cannot. For example, it can be and often is wielded by a committee of Congress or of a state legislature, even though such committees do not contain representatives of all of the people in the jurisdiction. Just as a committee of a legislature can hold hearings and receive information without triggering one-person, one-vote scrutiny, a legislative delegation in South Carolina can receive information that is incidental to the mem*286bers’ legislative roles in the General Assembly without triggering such scrutiny.
The legislative delegations’ second power under South Carolina law is the power to make non-binding recommendations. This power, like the power to receive information, is one that the Supreme Court has allowed to be vested in a subset of the legislature — or even in specific members. See Morrison, 487 U.S. at 694, 108 S.Ct. 2597 (upholding the statutory power of certain Members of Congress to request that the Attorney General apply for the appointment of an independent counsel). Indeed, the power to make non-binding recommendations to governmental officials is a power that all Americans — those in and out of government — have as a constitutional right. See U.S. Const. amend. I (protecting “the right of the people ... to petition the Government for a redress of grievances”). Because this power is held by every individual, corporation, and public or private entity in this country, it cannot be considered a “governmental function” subject to one-person, one-vote scrutiny.
The final power that the legislative delegations may be granted is the power to make appointments to local administrative bodies, such as to positions on boards of education or transportation committees. This is the most substantive power of the legislative delegations, but substantive does not necessarily mean “governmental” in this context, The Supreme Court has specifically approved a body’s exercise of this power without complying with one-person, one-vote principles. In Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), a unanimous Supreme Court upheld Michigan’s school board system whereby residents of various school districts elected local school boards, and those local school boards, through delegates, in turn appointed the county school boards. The challenge arose because each local school board, regardless of the population it represented, was given an equal vote in appointing the county school board. The plaintiffs’ theory was that the residents’ equal protection rights were being violated because they had unequal power in the selection of county school boards. The Supreme Court rejected this challenge, holding that the county school boards were appointed, rather than elected, and as such, one-person, one-vote principles did not apply to them. The structure approved in Sailors is identical to that before us in that legislative delegations representing unequal populations in the counties select or appoint county officials.
The majority fails to appreciate Sailors ’ applicability in this context. The majority reasons that because members of the South Carolina legislative delegations are elected rather than appointed, Sailors does not apply. But that misses entirely the pertinence of Sailors. The South Carolina legislative delegations are not analogous to the appointed county school boards in Sailors; they are analogous to the elected local school boards in Sailors. Just as the elected local school boards appointed the county school boards in Sailors, the South Carolina legislative delegations appoint various governmental officials in South Carolina counties. In both cases, the appointing officials — -members of the local school board appointing authority in Michigan and of the legislative delegations in South Carolina — were elected by districts of unequal populations. Nevertheless the Supreme Court held that one-person, one-vote principles have “no relevancy” to this scheme. Sailors, 387 U.S. at 111, 87 S.Ct. 1549. The distinction between Sailors and Board of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989), on which the majority so heavily relies, is that in Sailors, elected officials only appointed other public officials to carry out administrative and non-legislative functions, whereas in Board of Estimate, elected officials themselves served as a body constituted to exercise governmental functions. The holding of Board of Estimate is simply not apposite on the issue of whether appointment powers are governmental *287functions restricted by one-person, one-vote principles.
In short, under Sailors, the appointment of local government officials is not a governmental function that can only be exercised by persons selected under one-person, one-vote principles. This is true even when, as in Sailors, the appointing body is directly or indirectly elected. As Justice Douglas wrote for the unanimous Supreme Court:
Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here.
Sailors, 387 U.S. at 110-11, 87 S.Ct. 1549.
In summary, the power to receive information related to members’ legislative duties is one that has long been delegated to legislative subsets that are not themselves imbued with legislative power and that are not equally representative of all voters. The Supreme Court has upheld this practice, necessitating the conclusion that the power to receive information may be placed in a subset of legislators even where that subset does not follow one-person, one-vote principles. Similarly, the power to make non-binding recommendations is not in any way a “governmental function,” and thus it does not trigger one-person, one-vote scrutiny. Finally, the Supreme Court has explicitly upheld the placement of the appointment power in the hands of a body that, while elected, was not elected based upon one-person, one-vote principles. Because South Carolina’s legislative delegations do not themselves exercise governmental functions as recognized by the Supreme Court, they need not meet the one-person, one-vote requirement, and therefore we have no authority to strike them down.
in
In addition to their contention that the legislative delegations violate one-person, one-vote principles, the plaintiffs also claim that the legislative delegation system is racially discriminatory in violation of the Fifteenth Amendment, the Fourteenth Amendment, § 2 of the Voting Rights Act, and the Civil Rights Act. The majority’s disposition of this case makes it unnecessary for it to reach these issues. But finding, as I do, that the legislative delegations are not subject to one-person, one-vote scrutiny, I would reach the plaintiffs’ claims of racial discrimination.
I would first observe that the experts in this case do not agree, as the majority implies, that the legislative delegations were created in an effort to disenfranchise blacks. Professor William Moore of the College of Charleston stated that the emergence of the legislative delegations was principally the result of a design to put more power in the hands of the legislature as a check on the executive branch. Reducing the political power of blacks, according to Professor Moore, was essentially a non-issue in this development, although that pernicious goal had been the motivating force behind several earlier constitutional provisions, including a literacy test for voting and a requirement to pay poll taxes. Professor Orville Burton of the University of Illinois at Urbana-Champaign, on the other hand, offered a contrary conclusion. He opined that the legislative delegations were “in part established to disenfranchise and dilute the vote of African Americans.” He stated that many historians, “understanding how complex and tangled underlying causes and specific effects become, nevertheless have linked the establishment of the county legislative delegation system with disfranchisement” of blacks.
Whichever of the experts is correct, however, is irrelevant to the delegations’ current legal validity. The relevant facts *288for this inquiry are whether the system is maintained for a discriminatory purpose or whether it has a discriminatory effect. An elective or appointive governmental system cannot violate the Fifteenth Amendment unless (at the very least) the system has been maintained for a discriminatory purpose.2 See Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1356 (4th Cir.1989). A system does not violate the Fourteenth Amendment unless it is true both that the system is maintained for a discriminatory purpose and that it has a discriminatory effect. See id. at 1355. A system does not violate § 2 of the Voting Rights Act unless it has a discriminatory effect. See id. at 1357. In short, if the court finds that the system is neither maintained for a discriminatory purpose nor that the system has a discriminatory effect, the plaintiffs cannot prevail under any of these theories.
The district court found, as a matter of fact, after a trial, that “[i]t simply cannot be said today that the legislative delegations are maintained for racially discriminatory purposes.” With regard to the present effect of the legislative delegations, the court found “no present racially discriminatory effect in the legislative delegation system.” On the contrary, the empirical data in the record suggests that the legislative delegation system actually enhances the relative power of black officeholders. As Professor Moore noted:
If one examines electoral success of African-Americans in South Carolina, the highest percentage of seats held of any elected office by African-Americans is legislative seats. African-Americans also have a higher percentage of representation on legislative delegations than their White counterparts. For example, in the state house, African-American membership on legislative delegations averaged 1.54 delegations in 1995, compared to 1.49 for White legislators. In the Senate, African-Americans on the average served on 3.3 legislative delegations compared to 2 for White senators. Thus, the legislative delegation system today actually enhances African-American representation on these bodies.
J.A. 241-42. Because we cannot conclude that the district court’s findings that the legislative delegation system is not maintained for a discriminatory purpose and does not have a discriminatory effect are clearly erroneous, the system cannot be invalidated under the Fourteenth Amendment, the Fifteenth Amendment, or the Voting Rights Act.
Finally, the plaintiffs’ claim under the Civil Rights Act lacks support in both fact and law. The Civil Rights Act guarantees, in relevant part, that “[a]ll citizens of the United States who are otherwise qualified by law to vote ... shall be entitled and allowed to vote at all ... elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation ... to the contrary notwithstanding.” 42 U.S.C. § 1971(a)(1). This law prevents persons from being denied the right to vote in any election on specified grounds. As this case has nothing to do with persons being denied the right to participate in the voting process, the Civil Rights Act is inapposite.
IV
What is particularly troubling about the majority’s opinion is that it leaves South Carolina without any practical alternative. South Carolina has sought to link its state and local governments by giving the state legislators a role, albeit a limited one, in local government and by giving local governments a specific access to the state legislature. This specialized relationship, providing almost a structured buffer role for the delegations, could not exist without the delegations because neither the General Assembly in its entirety nor the Gover*289nor could perform that role. They are the object of the relationship not the buffer. Vesting these limited powers in a subset of the legislature has a rational purpose in providing a link between the state legislature and local governments, and we are not in any position to second guess this judgment made by South Carolina unless it is unconstitutional.
It is, of course, impossible for South Carolina to draw its legislative districts such that none cross county lines. That impossibility is the legacy of Reynolds, which found that the very Senate that gives equal voice to unequally populated states, such as New York and Vermont, nonetheless passed a constitutional amendment that forbids South Carolina from giving equal voice, in one of two legislative chambers, to Fairfield County and Greenville County. See Reynolds, 377 U.S. at 571-77, 84 S.Ct. 1362 (discussing the similarities between the United States system, granting equal vote to each state in the Senate and apportioning seats in the House of Representatives to states based upon population, and the Alabama system, which granted equal vote to each county in the upper house of the legislature and apportioned seats in the lower house of the legislature to counties based upon population, but nevertheless striking down the system of apportionment for both Alabama houses). But the requirements of Reynolds do not require us now to take further steps, and today’s decision oversteps even the line set by the Supreme Court in Sailors.
Because Reynolds makes it impossible for a state to draw its legislative districts without crossing county lines, the only way in which South Carolina can preserve the legislative delegations against a one-person, one-vote challenge would be to assign 'the delegations only such powers as would not trigger one-person, one-vote scrutiny. Yet, the majority has failed to elucidate any law or principle that would allow the South Carolina General Assembly to determine that role because it classifies every non-private activity as a prohibited “governmental function” and fails to respect the limits the South Carolina Supreme Court has already placed on the delegations. Thus, while the majority encourages the General Assembly to “turn to the task with fresh resolve” of implementing the majority’s vision of good government, it leaves no way for the General Assembly to preserve the legislative delegation system. Although it is unwilling to say so, the majority has handed down a death sentence for legislative delegations in South Carolina, a sentence with which I vigorously disagree.
. For most of this time, legislative delegations were from districts entirely within a county. Legislative districts that crossed county lines were not mandated until the mid-1960s as a result of the Supreme Court’s decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), requiring stale legislative districts to have a substantially equal voting population.
, It is not even clear that the Fifteenth Amendment applies in this context. See Holder v. Hall, 512 U.S. 874, 920, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring).