concurring.
I fully agree with and join in Judge Albritton’s well-reasoned opinion. I write separately only to express my views on the “potential-for-discrimination” issue which has been the source of much confusion in this and other recent cases brought to enforce the preclearance mandate of § 5 of the Voting Rights Act of 1965, 42 U.S.C.A. § 1973c.
The issue, in short, is whether § 5 applies to only those voting changes having a potential for discrimination. The State of Alabama argues that the recount provision of the electronic vote-counting procedures is not covered by § 5 — and thus need not be precleared — because discrimination is not a “plausible consequence” of the change at issue.1 The plaintiffs respond that this court may not even consider whether the recount provision has the potential for discrimination because the court lacks authority to consider either its purpose or its effects.2 For me, neither party has it quite right.
Several Supreme Court cases do indeed suggest that the potential for discrimination in voting is relevant in determining whether a change must be precleared under § 5. See Morse v. Republican Party of Va., 517 U.S. 186, 217, 116 S.Ct. 1186, 1204, 134 L.Ed.2d 347 (1996) (Stevens, J., joined by Ginsburg, J.); Presley v. Etowah County Comm’n, 502 U.S. 491, 505, 112 S.Ct. 820, 829-30, 117 L.Ed.2d 51 (1992); NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 181, 105 S.Ct. 1128, 1137, 84 L.Ed.2d 124 (1985); Dougherty County, Georgia Bd. of Educ. v. White, 439 U.S. 32, 42, 99 S.Ct. 368, 374, 58 L.Ed.2d 269 (1978); Perkins v. Matthews, 400 U.S. 379, 387-389, 91 S.Ct. 431, 435-436, 27 L.Ed.2d 476 (1971). Two more recent cases, however, suggest otherwise. Writing in 1996 for a unanimous court in Lopez v. Monterey County, for instance, Justice O’Connor declared that a three-judge court “lacks authority to consider the discriminatory purpose or nature of the changes.” 519 U.S. 9, 23, 117 S.Ct. 340, 348-49, 136 L.Ed.2d 273 (1996). Even more recently, another unanimous Court wrote this:
“Nor does it matter for the preclearance requirement whether the change works *1230in favor of, works against, or is neutral in its impact upon the ability of minorities to vote. See generally City of Lockhart v. United States, [460 U.S. 125, 103 S.Ct. 998 (1983) ] (requiring preclearance of a change but finding the change nonretrogressive). It is change that invokes the preelearance process; evaluation of that change concerns the merits of whether the change should in fact be precleared. See Lopez, supra, at [519 U.S. at 23], 117 S.Ct., at 348-349; Allen [v. State Board of Elections, 393 U.S. 544, 555 n. 19, 89 S.Ct. 817, 826 n. 19, 827-28, 22 L.Ed.2d 1 (1969) ].”
Young v. Fordice, 520 U.S. 273, 285, 117 S.Ct. 1228, 1236, 137 L.Ed.2d 448 (1997).
At first blush, Young and Lopez appear to contradict the earlier cases. After all, how can a court determine whether something has a potential for discrimination without considering its nature, purpose, or effects? But here, as is often the case, context is everything.
The potential-for-discrimination issue dates back to a time when the scope of § 5 was still largely undecided. It first appeared in Perkins v. Matthews, 400 U.S. at 387-89, 91 S.Ct. at 435-36, when the Supreme Court was asked to determine whether a change in city boundary lines was a change “with respect to voting.” 42 U.S.C.A. § 1973c. At the time, it was unclear whether an annexation had to be precleared. Such a change did not implicate voting on its face, nor did it directly effect a change in “election law.” The Supreme Court nonetheless concluded that the annexation was covered by § 5 because it would have an effect on voting by determining who could and could not vote in municipal elections. The Court further observed that § 5 “was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation.” Id. at 388-89, 91 S.Ct. at 437 (citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960)).
Writing in dissent, Justice Harlan put the issue in relief, strongly questioning the Court’s expressed expansion of § 5 to cover not only a change expressly affecting “election laws” but also “any change in state law which has an effect on voting, if changes of that type have ‘a potential for racial discrimination in voting.’ ” 400 U.S. at 398, 91 S. Ct at 442 (Harlan, J., concurring in part and dissenting in part) (citation omitted). “The limitation implied by the [potential-for-discrimination] clause,” Justice Harlan explained, “will prove meaningless as a practical matter” in restricting the circumstances covered by § 5 outside the context of election laws, id., because, “[g]iven a change with an effect on voting, a set of circumstances may be conceived with respect to almost any situation in which the change will bear more heavily on one race than on another.” Id.
The potential-for-discrimination issue thus arose not as an additional prerequisite to coverage under § 5 but rather as a way to identify changes which, though not clearly implicating voting on their face, are nonetheless changes “with respect to voting” subject to § 5. It would therefore be improper to conclude that a change’s potential for discrimination is irrelevant to a three-judge court’s inquiry under § 5; rather the degree to which it is relevant will depend upon the change at issue.
Later cases are consistent with this understanding. In Dougherty County, for example, the issue was whether § 5 covered a rule requiring county employees to take an unpaid leave of absence while campaigning for elective office. The county contended that its rule was merely an internal personnel practice not subject to § 5, but the Court disagreed. It found that the rule could have an effect on voter choice and, further, that the effect could be *1231discriminatory. Under such circumstances, the Supreme Court concluded that “obstacles to candidate qualification such as the Rule involved here are ‘standard[s], practiced], or procedure[s] with respect to voting.’ ” 439 U.S. at 43, 99 S.Ct. at 375.
In Young and Lopez, by contrast, the changes at issue obviously implicated voting. Young, for example, involved changes to voter registration laws. In Lopez, the plaintiffs challenged an ordinance which switched from districted to at-large elections for municipal judges. Both are obviously changes “with respect to voting” either on their face or in light of Supreme Court precedent, so no potential-for-discrimination inquiry was necessary.
The lesson to be learned from these cases is that a change that expressly affects election laws must be precleared regardless of its potential for discrimination in voting. But when a change does not so implicate voting, the court may look behind the face of the change to give it greater context, and one of the factors to which the court may look is whether the change has the potential for discrimination in voting. If a change has such potential, it constitutes a change “with respect to voting” and must be precleared.3
In this case, the recount provision made two important changes to Alabama election law. First, it created an individual right to a recount where none existed before. Prior to its adoption, no other rule or statute authorized a recount outside the context of an election contest, and, even within an election contest, the question of whether to order a recount was committed to the discretion of a judge. Second, the recount provision created a new ground for challenging the results of an election. Pri- or to its adoption, the grounds for an election contest were limited by statute to the following:
“(1) Malconduct, fraud or corruption on the part of any inspector, clerk, marker, returning officer, board of supervisors or other person.
“(2) When the person whose election to office is contested was not eligible thereto at the time of such election.
“(3) On account of illegal votes.
“(4) On account of the rejection of legal votes.
“(5) Offers to bribe, bribery, intimidation or other malconduct calculated to prevent a fair, free and full exercise of the elective franchise.”
1975 Ala.Code § 17-15-1. With its adoption, the State added the ground that, “[i]f the recount produces a change in precinct totals of sufficient magnitude to alter the result of an election, the outcome shall constitute grounds for an election contest as now prescribed by law.” Ala. Admin. Code § 307-X-1-.21. In practical effect, then, the recount provision amended existing Alabama election ¿am See Ex parte Jim Woodward, — So.2d —,— (Ala. 1998) (observing that the recount provision conflicts with and “displace^]” existing law). Therefore, because the change expressly affects state election laws, it is reasonable to conclude that it is improper for this court to consider whether the recount provision has the potential for discrimination in voting.
Nevertheless, I join in the majority’s opinion because the potential for discrimi*1232nation in the recount provision is so obvious and permits easy resolution of this case. We need look no farther than the findings rendered in state proceedings related to the election contest which was the catalyst for this litigation. See Eubanks v. Hale, Civil Action No. CV 98-7033 WJW (Jefferson County Cir. Ct. Jan. 4, 1999). Most importantly, the state judge in that case found that supporters of the losing contestant for sheriff of Jefferson County, Alabama, had specifically targeted black voters and precincts in a questionable investigation of fraud and malfeasance. Id. at 4-5. The discriminatory potential of an inquiry that sought to void only black votes was readily apparent; the state judge wrote:
“From the frightening use of large-scale computer searches and criminal investigations targeted upon persons simply because they voted, simply because they live in Bessemer, and simply because they are of African-American origin, it appears this contest, in Jefferson County, Alabama, has caused democracy to come dangerously close to resting on a cracked foundation.”
Id. The recount provision at issue here presents a similar danger, because it contains no safeguards to prevent its use in a similarly discriminatory fashion. It allows virtually any eligible voter to request a recount for any reason or for no reason at all, such that a voter could request a recount in predominantly black precincts whenever the results of an election do not suit the white majority. There can scarcely be a clearer demonstration of its potential for discrimination.
. Response of James Bennett to plaintiffs' post-discovery brief regarding final disposition of this action, filed April 20, 1999, at 8 (quoting Greene County Racing Comm’n v. City of Birmingham, 772 F.Supp. 1207, 1213 (N.D.Ala.1991) (three-judge court), vacated as moot sub nom. Harris v. City of Birmingham, 505 U.S. 1201, 112 S.Ct. 2986, 120 L.Ed.2d 864 (1992)).
. Plaintiffs’ post-discovery reply brief, filed April 28, 1999, at 2.
. This understanding of the potential-for-discrimination phrase is further reinforced by the fact that, in Perkins v. Matthews, the Supreme Court wrote that § 5 was designed to cover "changes having a potential for racial discrimination in voting,” 400 U.S. at 388-89, 91 S.Ct. at 437, rather than “voting changes having a potential for racial discrimination.”
While, as the Court has emphasized, it is "generally undesirable, where holdings of the Court are not at issue, to dissect the sentences of the United States Reports as though they were the United States Code,” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407 (1993), the choice of phrasing is, I think, important here.