Dougherty County Bd. of Ed. v. White

Mr. Justice Powell,

with whom The Chief Justice and Mr. Justice Rehnquist join, dissenting.

Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court’s ruling is without support in the language or legislative history of the Act. Moreover,.although prior decisions *48of the Court have taken liberties with this language and history, today's decision is without precedent.

I

Standard, Practice, or Procedure

Section 5 requires federal preclearance before a “political subdivision” of a State covered by § 4 of the Act may enforce a change in “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . This provision marked a radical departure from traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.1 Indeed, the Court noted in the first case to come before it under the Act that § 5 represents an “uncommon exercise of congressional power,” South Carolina v. Katzenbach, 383 U. S. 301, 334 (1966), and the Justice Department has conceded in testimony before Congress that it is a “substantial departure . . . from ordinary concepts of our federal system.” Hearings on S. 407 et al before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cdng., 1st Sess., 536 (1975) (testimony of Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division).

Congress tempered the intrusion of the Federal Government into state affairs, however, by limiting the Act’s coverage to voting regulations. Indeed, the very title of the Act shows *49that the Act’s thrust is directed to the protection of voting rights. Section 2 forbids the States to use any “voting qualification or prerequisite to voting, or standard, practice, or procedure” (emphasis added) to deny anyone the right to vote on account of race. Similarly, § 4 sharply curtails the rights of certain States to use “tests or devices” as prerequisites to voting eligibility. “[T]est or device” is defined in § 4 (c), 42 U. S. C. § 1973b (c), as

“any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” (Emphasis added.)

Finally, § 5 requires preclearance only of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” (emphasis added).2

The question under this language, therefore, is whether Rule 58 of the Board pertains to voting. Contrary to the suggestion of the Court’s opinion, see ante, at 42-43, the answer to this question turns neither on the Board’s possible discrimination against the appellee, nor on the potential of enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to enact*50ments that have a potential for discriminatory use; rather, it extends to all regulations with respect to voting, regardless of their purpose or potential uses. The affected party’s race was conceded by counsel to be irrelevant in determining whether Rule 58 pertains to voting, see Tr. of Oral Arg. 25-27; nor is the timing of the adoption of Rule 58 of any significance. Indeed, in stating his cause of action under the Act, the appellee does not allege any discrimination on the basis of race.3 Yet the Court, in holding that Rule 58 is subject to the preclearance requirements of § 5, relies on a perceived potential for discrimination. In so doing, the Court simply disregards the explicit scope of § 5 and relies upon factors that the parties have conceded to be irrelevant.4

*51Separated from all mistaken references to racial discrimination, the Court’s holding that Rule 58 is a “standard, practice, or procedure with respect to voting” is difficult to understand. It tortures the language of the Act to conclude that this personnel regulation, having nothing to do with the conduct of elections as such, is state action “with respect to voting.” No one is denied the right to vote; nor is anyone’s exercise of the franchise impaired.

To support its interpretation of § 5, the Court has constructed a tenuous theory, reasoning that, because the right to vote includes the right to vote for whoever may wish to run for office, any discouragement given any potential candidate may deprive someone of the right to vote. In constructing this theory, ante, at 41, the Court relies upon Bullock v. Carter, 405 U. S. 134 (1972); Hadnott v. Amos, 394 U. S. 358 (1969); and Allen v. State Board of Elections, 393 U. S. 544 (1969) — cases that involved explicit barriers to candidacy, such as the filing fees held to violate the Fourteenth Amendment in Bullock. The Court states that the “reality here is that Rule 58’s impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance.” Ante, at 41. But the notion that a State or locality imposes a “qualification” on candidates by refusing to support their campaigns with public funds is without support in reason or precedent.

As no prior § 5 decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from *52its context, is meaningless.5 For example, in Allen v. State Board of Elections, supra, at 566, the Court suggested that § 5 would require clearance of “any state enactment which alter [s] the election law of a covered State in even a minor way.” Even if the language in Allen were viewed as necessary to the Court’s holding in that case, it would not support today’s decision. In Allen, as in each of the cases relied upon today,6 *53the Court was considering an enactment relating directly to the way in which elections are conducted: either by structuring the method of balloting, setting forth the qualifications for candidates, or determining who shall be permitted to vote. These enactments could be said to be “with respect to voting” in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It is a personnel rule directed to the resolution of a personnel problem: the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning', rather than to counseling schoolchildren.

After extending the scope of § 5 beyond anything indicated in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a “neutral personnel practice governing all forms of absenteeism,” as it “specifically addresses the electoral process.” See ante, at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves of absence whenever an extracurricular responsibility required them frequently to be absent from their duties — whether that responsibility derived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, to give as the principal reason for extension of § 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a “neutral personnel practice governing all forms of absenteeism” is no less than the effect of Rule 58 as enacted by the Dougherty County School Board. Thus, under a general absenteeism provision the appellee would go without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy would join the appellee on leave. *54Under the Court’s rationale, therefore, even those enactments making no explicit reference to the electoral process would have to be cleared through the Attorney General or the District Court for the District of Columbia. Indeed, if the Court truly means that any incidental impact on elections is sufficient to trigger the preclearance requirement of § 5, then it is difficult to imagine what sorts of state or local enactments would not fall within the scope of that section.7

II

Political Subdivision

Section 5 requires federal preclearance only of those voting changes that are adopted either by a State covered under § 4 or by a “political subdivision” of such a State. Although § 14 (c) (2) of the Act restricts the term “political subdivision” to state institutions that “conduo[t] registration for voting,” last Term the Court ruled that the preclearance requirement of § 5 applied to the city of Sheffield, Ala., which is without authority to register voters. See United States v. Board of *55Commissioners of Sheffield, 435 U. S. 110 (1978). Sheffield had been given authority, however, to undertake a substantial restructuring of the method by which its government officials would be selected.8 Thus, pursuant to a voter referendum, Sheffield had changed from a commission to a mayor-council form of government. Councilmen were to be elected at large, but would run for numbered seats corresponding to the two council seats given each of the city’s four wards.

The Court held that Sheffield was a political subdivision, in spite of its lack of authority to register voters. Today the Court states that appellants’ “contention is squarely foreclosed by our decision last Term” in Sheffield. Ante, at 44. The contention that this local school board is not a political subdivision under the Act is foreclosed only because the Court now declares it to be so, as neither the holding nor the rationale of Sheffield applies to this case. The Sheffield decision was based on two grounds, neither of which is present here. First, the Sheffield Court relied upon “congressional intent” as derived from “the Act’s structure,” “the language of the Act,” “the legislative history of . . . enactment and re-enactments,” and “the Attorney General’s consistent interpretations of § 5.” 435 U. S., at 117-118. Second, the Court based its decision on the frustration of the Act’s basic policy that would result if a State could circumvent the Act’s provisions by simply withdrawing the power to register voters from all or selected cities, counties, parishes, or other political subdivisions.9

*56There is nothing in the language, structure, or legislative history of the Act that suggests it was Congress’ intent that local entities such as the Board were to fall within the reach of § 5; nor has the Court cited any “consistent interpretation” of § 5 by the Attorney General that supports the Court’s holding.10 Looking to the structure of the Act, the Court argues that whether a subdivision has electoral responsibilities is of no consequence in determining whether § 5 is applicable. Ante, at 45-46. Rather, it is said that this provision “directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it.” Ibid. Neither Sheffield nor any other decision of the Court suggests that § 5 applies to the actions of every local entity however remote its powers may be with respect to elections and voting. Indeed, the Court indicated the importance of direct power over elections in Sheffield when it repeatedly emphasized Sheffield’s “power over the electoral process.” 11 *57See, e. g., 435 U. S., at 118, 120, 122, 127. A rational application of Sheffield would require consideration of whether the entity enacting a change had a substantial measure of authority over the way in which elections were held or over the right to vote. The city of Sheffield had such authority; the Dougherty County School Board does not.

Although professing to find support in the legislative history of the Act, the Court cites no committee report or statement by any supporter of the Act that suggests a congressional intention to require federal preclearance of actions by local entities that are powerless to exercise any control over elections or voting. The Court does try to connect § 5 to school boards by references to legislative history that are entirely irrelevant. The Court neglects to make clear that each of these references pertained to a school board enacting changes in the way its members were elected, something the Dougherty County School Board is without authority to do.12 See 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis) (“Any changes, so far as election officials were concerned, which were made in precincts, county districts, school districts, municipalities, or State legislatures . . . had to be submitted”) ; Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 467-470 (1975) (school board enacting changes from ward to at-large elections for its members); S. Rep. No. 94-295, p. 27 (1975) (school boards in Texas adopting “[e] lection law changes” to avoid election of minority groups to school boards).

*58Furthermore, the Sheffield Court’s concern over the possible circumvention of the Act is inapposite here, as the Board (unlike the city of Sheffield) has no authority to regulate the electoral process. There can be no danger, therefore, that substantial restructuring of the electoral system will take place in Dougherty County without the scrutiny of either the Attorney General or the District Court for the District of Columbia.

Thus, none of the factors relied upon in Sheffield is present in this case: There is no relevant “language of the Act,” nothing in the “Act’s structure,” nothing in its “legislative history,” and no “consistent interpretation of § 5” by the Attorney General to support the extension of § 5 to the Board’s enactments. Nor is it possible that a local school board that is without authority over the electoral process will be used to circumvent the Act’s basic policy. There simply is no parallel in fact or governmental theory between a city like Sheffield and the Dougherty County School Board.

Finding no support for its decision in the rationale of Sheffield, the Court falls back upon language in that opinion that “all entities having power over any aspect of the electoral process” are subject to § 5 — language merely expressing a conclusion drawn from a consideration of the factors present in Sheffield, but absent here.13 The Board has no “power over any aspect of the electoral process” in the normal sense of these words. It did not purport by Rule 58 to regulate the appellee’s election to the Georgia House of Representatives; *59it has been given no authority under Georgia law to do so. Rather, the Board merely has said to its employees that, if they choose to run for any elective office, the Board will not affirmatively support their campaign by paying their wages despite the neglect of their duties that inevitably will occur. Such neutral action designed to protect the public fisc hardly rises to the level of “power over . . . the election process.”

In sum, I would reverse the judgment below on either or both of two grounds. The Dougherty County School Board is not a “political subdivision” within the meaning of the Act. Even if it were deemed to be such, the personnel rule at issue is not a standard, practice, or procedure “with respect to voting.” As respectful as I am of my Brothers’ opinions, I view the Court’s decision as simply a judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history.

Mr. Justice Black believed that the preclearanee requirement of § 5 “so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.” See South Carolina v. Katzenbach, 383 U. S. 301, 358 (1966) (concurring and dissenting opinion). Other Members of the Court also have expressed misgivings. See Allen v. State Board of Elections, 393 U. S. 544, 586, and n. 4 (1969) (Harlan, J., concurring and dissenting); Holt v. Richmond, 406 U. S. 903 (1972) (Burger, C. J., concurring) ; Georgia v. United States, 411 U. S. 526, 545 (1973) (Powell, J., dissenting). But decisions of the Court have held the Act to be constitutional.

In § 14 (e) (1) of the Act, 42 U. S. C. § 19731 (c) (1), the terms “vote” and “voting” are defined to

“include all action necessary to mate a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.”

Appellee’s first cause of action alleged only:

“The actions of the defendants complained of herein are in violation of the Voting Rights Act of 1965, 42 U. S. C. Sec. 1971, et seq., in that defendants have instituted a 'voting qualification or prerequisite to vote, or standard, practice or procedure with respect to voting different from that in force or effect on November 1, 1964’ without submitting or obtaining the required approval of either the United States Attorney General or the United States District Court for the District of Columbia, as required by Section Five of the Voting Rights Act of 1965. Defendants are a 'covered jurisdiction' within the meaning of the Voting Rights Act.”

The appellee also set forth claims under the Fourteenth and Fifteenth Amendments and under 42 U. S. C. § 1983. Under these causes of action, the appellee alleged discrimination on the basis of race. The appellee’s race and the timing of Rule 58’s adoption by the Board may be probative in establishing whether the Board acted unconstitutionally in enacting Rule 58. But these causes of action were not addressed by the District Court and are not before us.

To be sure, the purpose of the Voting Rights Act was to “banish the blight of racial discrimination in- voting” in selected States. See South Carolina v. Katzenbach, supra, at 308. To this end, Congress imposed an unlimited proscription on activities affecting the voting rights of others by making it a crime under § 11 of the Act for anyone to “intimidate, threaten, or coerce any person for voting ... or for urging . . . any person to vote.” 42 U. S. C. § 1973i(b). Unlik-e §5, §11 is not *51limited to devices identifiable as voting regulations. On the other hand, §2 does not deal with every voting standard, practice, or procedure, but rather is limited to voting procedures that deny someone the right to vote. Thus, although Congress had but one purpose, it used different methods to reach its ends. Under § 5, Congress required preclearance of all changes in voting laws — irrespective of their intent, effect, or potential use.

The Court also relies upon the Attorney General’s interpretation of the Act for its holding today. See ante, at 39-40. Thus, the Court quotes language in the Attorney General’s regulations that “[a]ny alteration affecting the eligibility of persons to become or remain candidates . . .” must be precleared. Ante, at 39. Nothing in Rule 58, however, affected the appellee’s eligibility to become or remain a candidate for the Georgia House of Representatives. As the Attorney General’s regulations do not state with specificity whether a personnel rule concerning wages paid to candidates is a regulation “with respect to voting” under § 5, these regulations are of no assistance in the case at hand. Although the Attorney General now demands that Rule 58 be cleared, there is no indication that this action accords with a longstanding policy of the Justice Department. Indeed, the Solicitor General admits that “the Attorney General has had little experience with provisions such as [the] appellant [s’] . . . Rule 58.” See Brief for United States as Amicus Curiae 14. Under these circumstances, the Court’s purported deference to the Attorney General’s position — apparently voiced for the first time in this case— is a makeweight.

The actions presented to the Court in Allen were a decision to change from district to at-large elections, an enactment to make the Superintendent of Schools an appointive position, and a stiffening of the qualifications required of independent candidates. See Allen v. State Board of Elections, 393 U. S., at 550-552. Similarly, the other cases to which the Court alludes involved voting regulations: Richmond v. United States, 422 U. S. 358 (1975) (annexation); Georgia v. United States, 411 U. S. 526 (1973) (reapportionment); Petersburg v. United States, 410 U. S. 962 (1973) (annexations); Perkins v. Matthews, 400 U. S. 379 (1971) (annexation and redistricting); Hadnott v. Amos, 394 U. S. 358 (1969) (requirements for independent candidates). Because Allen and its progeny involved only enactments directly pertaining to voting regulation, the implicit ratification of these decisions by Congress in 1970 and 1975 has no bearing on the case at hand.

Little imagination is required to anticipate one possible result of today's decision: In States covered by the Act, public employees at every level of state government may “declare their candidacy” for elective office, thereby avoiding their duties while drawing their pay. It will be answered, of course, that personnel regulations adopted to close this “loophole” can be submitted to the Attorney General for his approval. Indeed, the Government’s amicus brief in this case appears to foreclose the possibility that the Department of Justice would rule these trivialities to be proscribed by the Act. There are thousands of local governmental bodies, however: school boards, planning commissions, sanitary district commissions, zoning boards, and the like. Many of these may choose the easier course of allowing employees this privilege at the taxpayers’ expense, rather than going through the unwelcome and often frustrating experience of clearing each personnel regulation through the federal bureaucracy. Even if most of these bodies eventually will prevail in implementing their regulations, the fact that they may do so only at sufferance of the Federal Government runs counter to our most basic notions of local self-government. See n. 1, supra.

See Ala. Code, Tit. 11, §§ 4D150 to 44-162 (1975).

1 joined in the judgment of the Court in Sheffield for similar reasons: “I believe today’s decision to be correct under this Court’s precedents and necessary in order to effectuate the purposes of the Act, as construed in Allen and Perkins. In view of these purposes it does not make sense to limit the preclearance requirement to political units charged with voter registration. . . . [S]uch a construction of the statute would enable covered States or political subdivisions to allow local entities that do not *56conduct voter registration to assume responsibility for changing the electoral process. A covered State or political subdivision thereby could achieve through its instrumentalities what it could not do itself without preclearanee.” 435 U. S., at 139.

Indeed, in discussing whether the Dougherty County Board of Education is a “political subdivision” covered by § 5, the Court makes no reference whatsoever to any interpretation of the Act by the Attorney General. Thus, what the Court found to be a “compelling argument” for extending the preclearance requirement to the city of Sheffield, see Sheffield, 435 U. S., at 131, is wholly absent here.

In relying upon the Act’s structure for its interpretation of § 5, the Court in Sheffield made much of the scope of § 4 (a) and the need to read § 5 “in lock-step with § 4.” See 435 U. S., at 122 (quoting Allen v. State Board of Elections, 393 U. S., at 584 (Harlan, J., concurring and dissenting) ). Thus, the Court concluded that § 5 must apply to any entity with control over the electoral system, because § 4 (a) proscribes the use of literacy tests and similar devices, and any entity with control over the electoral system could use such devices. Under this analysis, the Board should not come within the scope of § 5, as it has no power to use a test or device to deprive anyone of the right to vote.

The Dougherty County Board of Education has no authority over any aspect of an electoral system. The Georgia State Constitution charges the Board with administering the public school system within Dougherty County, Georgia. See Ga. Code §2-5302 (Supp. 1977). The five members of the Board are appointed by the County Grand Jury for terms of five years, and have powers limited to establishing and maintaining a public school system.

Today the Court concludes that any state entity empowered to adopt “potentially discriminatory enactments” with an effect on elections is a “political subdivision” for purposes of the Act. The Court also construes every such potentially discriminatory enactment to be a “standard, practice, or procedure” under § 5. Thus, although the Court professes to be deciding two different questions, it telescopes them into one: Every entity empowered to enact a standard, practice, or procedure with respect to voting (that is, a regulation that may be viewed as potentially discriminatory) by definition is a political subdivision subject to § 5.