Presley v. Etowah County Commission/Dissent Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice WHITE and Justice BLACKMUN join, dissenting.

In 1986, an important event occurred in each of two Alabama counties with long histories of white-dominated political processes. In Etowah County, a black commissioner was elected to the county commission for the first time in recent history, and in Russell County, two black commissioners were elected to the county commission for the first time in "modern times." App. to Juris. Statement of Appellant Presley 4a. Because of the three resolutions at issue in this case-two adopted in Etowah County after Commissioner Presley's election and one adopted in Russell County before the election of Commissioners Mack and Gosha-none of the three newly-elected black commissioners was able to exercise the decisionmaking authority that had been traditionally associated with his office.

As I shall explain, this is a case in which a few pages of history are far more illuminating than volumes of logic and hours of speculation about hypothetical line-drawing problems. Initially, however, it is important to note that a different decision in these cases would not impose any novel or significant burden on those jurisdictions that remain covered under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c. ^[1]

Prior to these cases, federal courts had uniformly agreed with the Attorney General's interpretation that § 5 covered transfers of decisionmaking power that had a potential for discrimination against minority voters. ^[2] On at least eight occasions since 1975, ^[3] the Department of Justice has refused to preclear changes in the power of elected officials that had a potentially discriminatory ^[4] impact on black voters. The Department has routinely precleared numerous other transfers of authority after determining that they had no discriminatory purpose or effect. ^[5] There is no evidence that the prevailing practice imposed any special burden on covered jurisdictions. For example, in this fiscal year the Attorney General has processed over 17,000 preclearance requests, and has approved over 99 percent of them without any undue delay. ^[6] It is, therefore, simply hyperbole for the Court to suggest that if we adopted the Attorney General's position in this case "neither state nor local governments could exercise power in a responsible manner within a federal system." Ante, at 507. ^[7]

In all of our prior cases interpreting § 5 of the Voting Rights Act, the Court has agreed with the Attorney General's construction of this important statute. ^[8] I share the Court's view that the "considerable deference" to which the Attorney General's construction is entitled ^[9] does not mean automatic "acquiescence," ante, at 508; however, I strongly disagree with the Court that our task in these cases is "to formulate workable rules to confine the coverage of § 5 to its legitimate sphere: voting." Ante, at 506. For reasons that I shall explain, even if the Attorney General, participating in these cases as amicus curiae, has asked the Court to adopt a broader rationale than is necessary or appropriate, a narrower basis for a decision is obviously available in the Etowah County case and, in my judgment, in the Russell County case as well.

* The original enactment of § 5, the interpretations of the Act by this Court and by the Attorney General, and the reenactment of the statute by Congress in light of those interpretations, reveal a continuous process of development in response to changing conditions in the covered jurisdictions.

The central purpose of the original Act was to eliminate the various devices, such as literacy tests, requirements of "good moral character," vouchers, and poll taxes, that had excluded black voters from the registration and voting process in the southern States for decades. ^[10] As we explained in McCain v. Lybrand, 465 U.S. 236, 104 S.Ct. 1037, 79 L.Ed.2d 271 (1984): "The Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq. (1976 ed. and Supp. V), was enacted by Congress as a response to the "unremitting and ingenious defiance" of the command of the Fifteenth Amendment for nearly a century by state officials in certain parts of the Nation. South Carolina v. Katzenbach, 383 U.S. 301, 309 [86 S.Ct. 803, 808, 15 L.Ed.2d 769] (1966). Congress concluded that case-by-case litigation under previous legislation was an unsatisfactory method to uncover and remedy the systematic discriminatory election practices in certain areas: such lawsuits were too onerous and time-consuming to prepare, obstructionist tactics by those determined to perpetuate discrimination yielded unacceptable delay, and even successful lawsuits too often merely resulted in a change in methods of discrimination. E.g., H.R.Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided "to shift the advantage of time and inertia from the perpetrators of the evil to its victims," 383 U.S., at 328 [86 S.Ct., at 818], and enacted "stringent new remedies" designed to "banish the blight of racial discrimination in voting" once and for all, id., at 308 [86 S.Ct., at 808]." Id., at 243-244, 104 S.Ct., at 1042-1043 (footnote omitted).

During the first few years after the enactment of § 5, the federal courts gave its text a narrow literal construction that confined its coverage to the political subdivisions that registered voters and to the practices that directly concerned the registration and voting process. Prior to the Court's decision in Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), only three States submitted any changes to the Attorney General for preclearance and a total of only 323 changes were submitted during the first five years of administration. ^[11] At that time, the covered jurisdictions were able to respond to the increase in the number of black registered voters by means that prevented the newly registered minority voters from having a proportionate impact on the political process.

In Allen and its companion cases, ^[12] however, the Court held that some of these responses, even if not described in the literal text of the Act, were nevertheless included within the scope of § 5. Relying heavily on the statutory definition of voting as encompassing "all action necessary to make a vote effective,' " 393 U.S., at 565-566, 89 S.Ct., at 831-832, and the broad remedial purposes of the Act, the Court held that a change from district to at-large voting for county supervisors, a change that made an important county office appointive rather than elective, and a change that altered the requirements for independent candidates, were all covered voting practices. Id., at 569-571, 89 S.Ct., at 833-834. Thus, § 5 was not limited to changes directly affecting the casting of a ballot. Id., at 569, 89 S.Ct., at 833 ("The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555 [84 S.Ct. 1362, 1378, 12 L.Ed.2d 506] (1964)"). Nothing in Allen implied that the Court had defined an exhaustive category of changes covered by the Act. ^[13] On the contrary, the Court described § 5 as "aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race," id., at 565, 89 S.Ct., at 831, and expressed, in no uncertain terms, that § 5 should be given "the broadest possible scope." Id., at 567, 89 S.Ct., at 832. Aware of the consequences of its decision, the Court gave its broad reading of the Act "only prospective effect." Id., at 572, 89 S.Ct., at 835.

The Court's construction of the Act in Allen, as requiring preclearance of changes in covered jurisdictions that were responsive to the increase in the number of black registered voters, ^[14] was consistent with the concern that justified the extraordinary remedy set forth in § 5 itself, particularly the concern that recalcitrant white majorities could be expected to devise new stratagems to maintain their political power if not closely scrutinized.

"The rationale of this 'uncommon exercise' of congressional power which sustained its constitutional validity was a presumption that jurisdictions which had" resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees" would be likely to engage in "similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself." South Carolina v. Katzenbach, supra [383 U.S.,] at 334, 335 [86 S.Ct., at 821, 822] (footnote omitted). This provision must, of course, be interpreted in light of its prophylactic purpose and the historical experience which it reflects. See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 151 [101 S.Ct. 2224, 2237, 68 L.Ed.2d 724] (1981)." McCain v. Lybrand, 465 U.S., at 245-246, 104 S.Ct., at 1043-1044.

Thus, § 5 was understood to be "a 'vital element' of the Act," and was designed to be flexible enough to ensure that "new subterfuges will be promptly discovered and enjoined." Id., at 248, 104 S.Ct., at 1045 (citation omitted). ^[15] Section 5, as construed by the Court, was not limited to a "simple inventory of voting procedures," but rather, was understood to address "the reality of changed practices as they affect Negro voters." Georgia v. United States, 411 U.S. 526, 531, 93 S.Ct. 1702, 1706, 36 L.Ed.2d 472 (1973).

In subsequent cases, this Court has reaffirmed the broad scope of § 5 coverage, as first articulated by the Court in Allen. ^[16] The Court has interpreted § 5 expansively and has said in the context of candidate qualification that a statute requiring independent candidates to declare their intention to seek office two months earlier than under the previous procedures created a barrier to candidacy and required § 5 preclearance, Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), and in other contexts, that preclearance is required when there is a change in polling places, Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), an alteration in municipal boundaries, City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), reapportionment and redistricting plans, Georgia v. United States, 411 U.S., at 532-533, 93 S.Ct., at 1706-1707, and the introduction of numbered posts and staggered terms, Lockhart v. United States, 460 U.S. 125, 131, 132, 134-135, 103 S.Ct. 998, 1002, 1003, 1004, 74 L.Ed.2d 863 (1983).

The reenactment of § 5 in 1970, Pub.L. 91-285, 84 Stat. 314, ^[17] in 1975, Pub.L. 94-73, 89 Stat. 400, ^[18] and in 1982, Pub.L. 97-205, 96 Stat. 131, ^[19] reflected congressional approval of Allen's broad interpretation of the Act. Indeed, congressional comments quoted in our opinion in Perkins v. Matthews, supra, expressly endorsed an interpretation of § 5 that takes into account white resistance to progress in black registration.

"One Congressman who had supported the 1965 Act observed, 'When I voted for the Voting Rights Act of 1965, I hoped that 5 years would be ample time. But resistance to progress has been more subtle and more effective than I thought possible. A whole arsenal of racist weapons has been perfected. Boundary lines have been gerrymandered, elections have been switched to an at-large basis, counties have been consolidated, elective offices have been abolished where blacks had a chance of winning, the appointment process has been substituted for the elective process, election officials have withheld the necessary information for voting or running for office, and both physical and economic intimidation have been employed.

" 'Section 5 was intended to prevent the use of most of these devices.' " 400 U.S., at 389, n. 8, 91 S.Ct., at 437, n. 8. ^[20]

Since the decision in Allen, the debate on reenactment of § 5 in 1970, and the issuance of regulations by the Department of Justice, ^[21] it has been recognized that the replacement of an elective office that might be won by a black candidate with an appointive office is one of the methods of maintaining a white majority's political power that § 5 was designed to forestall. As a practical matter, such a change has the same effect as a change that makes an elected official a mere figurehead by transferring his decisionmaking authority to an appointed official, or to a group of elected officials controlled by the majority. Although this type of response to burgeoning black registration may not have been prevalent during the early history of the Act, it has been an active concern of the Attorney General since 1976. See supra, n. 3. In my judgment, such a change in the reallocation of decisionmaking authority in an elective office, at least in its most blatant form, is indistinguishable from, and just as unacceptable as, gerrymandering boundary lines or switching elections from a district to an at-large basis.

The two resolutions adopted by the Etowah County Commission on August 25, 1987, less than 9 months after the county's first black commissioner took office, were an obvious response to the redistricting of the county that produced a majority black district from which a black commissioner was elected. In my view, it was wrong for the District Court to divorce the two parts of this consolidated response and to analyze the two resolutions separately. ^[22] The characterization of the Road Supervision Resolution as a change with a "potential for discrimination" that was "blatant and obvious," App. to Juris. Statement of Appellant Presley 20a, and that should be enjoined unless subjected to § 5 preclearance, id., at 21a, 23a, applies equally to the Common Fund Resolution. Both resolutions diminished the decisionmaking authority of the newly-elected black commissioner, and both were passed on the same day and in response to the districting changes effected by the consent decree. ^[23]

At the very least, I would hold that the reallocation of decisionmaking authority of an elective office that is taken (1) after the victory of a black candidate, and (2) after the entry of a consent decree designed to give black voters an opportunity to have representation on an elective body, is covered by § 5.

Similar considerations supported the Court's decision in Dougherty County Bd. of Education v. White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269 (1978). Dougherty involved a rule requiring an employee of the school system to take a leave of absence while running for or holding a public office. The Court recognized that the rule in question operated in effect as a filing fee, hitting hardest those who were least able to afford it, and that it implicated the political process to the same extent as had changes in the location of polling places, Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), and alterations in the procedures for casting a write-in vote, Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). The Dougherty Court also observed that the circumstances surrounding the Rule's adoption were "sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance." 439 U.S., at 42, 99 S.Ct., at 374. The rule had been adopted by an area with a long history of racial discrimination in voting, after the first black to seek public office announced his candidacy. Ibid. In the Etowah County case, as in Dougherty, the circumstances surrounding the adoption of the resolutions are similarly suggestive of the potential for discrimination and should require § 5 preclearance.

Although the test I propose here may not adequately implement § 5, it would certainly provide a workable rule that would result in the correct disposition of this case without opening the Pandora's box that the Court seems to fear. ^[24]

The record indicates that the resolution challenged in the Russell County case may well have had a nondiscriminatory, anticorruption purpose. ^[25] It would not be covered by the narrow standard that I have proposed as a "workable rule" for deciding the Etowah County case. I would, however, adopt a broader standard that would require preclearance in this case as well. The proper test, I believe, is suggested by the examples of resistance to the increase in black registration that were noted in our opinion in Perkins v. Matthews, supra. ^[26]

Changes from district voting to at-large voting, the gerrymandering of district boundary lines, and the replacement of an elected official with an appointed official, all share the characteristic of enhancing the power of the majority over a segment of the political community that might otherwise be adequately represented. A resolution that reallocates decisionmaking power by transferring authority from an elected district representative to an official, or a group, controlled by the majority, has the same potential for discrimination against the constituents in the disadvantaged districts. ^[27] The Russell County Resolution satisfies that test, and therefore, like both Etowah County Resolutions, should have been precleared. To hold otherwise, as the Court does today, leaves covered States free to evade the requirements of § 5, and to undermine the purpose of the Act, simply by transferring the authority of an elected official, who happens to be black, to another official or group controlled by the majority.

The Court today rejects the Attorney General's position that transfers of authority are covered under § 5 when "they implicate the decisionmaking authority of elected officials." Ante, at 509. It does so because it fears that such a rule creates line-drawing problems and moves too far afield from "voting." Whether or not the rationale advocated by the Attorney General in this case is appropriate, his judgment concerning the proper disposition of these two cases is unquestionably correct.

I would therefore reverse in both cases.

Notes

1. Alabama, like the other States that are covered under § 5, was placed in that category because of its history of "substantial voting discrimination." South Carolina v. Katzenbach, 383 U.S. 301, 329, 86 S.Ct. 803, 819, 15 L.Ed.2d 769 (1966).
2. See Horry County v. United States, 449 F.Supp. 990 (D.C.1978) (statute providing for election of public officials who were formerly appointed by Governor required preclearance under § 5); Hardy v. Wallace, 603 F.Supp. 174 (N.D.Ala.1985) (statute changing appointive power over local racing commission from local legislative delegation to Governor required preclearance under § 5); County Council of Sumter County v. United States, 555 F.Supp. 694 (D.C.1983) (law that eliminated legal power of Governor and General Assembly over local affairs and vested it in county council elected at large by county voters required preclearance under § 5); Robinson v. Alabama State Department of Education, 652 F.Supp. 484 (MD Ala.1987) (transfer of authority from Board of Education whose members were elected county-wide to one whose members were appointed by the city council required § 5 preclearance).
3. The Solicitor General has advised us that the Department has objected to the following transfers of authority:
4. Whether a change in "any . . . standard, practice or procedure with respect to voting," 42 U.S.C. § 1973c, must be precleared under § 5 depends, not on whether the change "resulted in impairment of the right to vote, or whether [it was] intended to have that effect," but rather, on "whether the challenged alteration has the potential for discrimination." NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 181, 105 S.Ct. 1128, 1137, 84 L.Ed.2d 124 (1985); see McCain v. Lybrand, 465 U.S. 236, 250, n. 17, 104 S.Ct. 1037, 1046, n. 17, 79 L.Ed.2d 271 (1984); Dougherty County Bd. of Education v. White, 439 U.S. 32, 42, 99 S.Ct. 368, 374, 58 L.Ed.2d 269 (1978) (issue "is not whether the provision is in fact innocuous and likely to be approved, but whether it has a potential for discrimination"); Georgia v. United States, 411 U.S. 526, 534, 93 S.Ct. 1702, 1707, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379, 383-385, 91 S.Ct. 431, 434-435, 27 L.Ed.2d 476 (1971); Allen v. State Bd. of Elections, 393 U.S. 544, 555, n. 19, 558-559, 89 S.Ct. 817, 826 n. 19, 828, 22 L.Ed.2d 1 (1969).
5. Brief for the United States as Amicus Curiae 16-17.
6. Tr. of Oral Arg. 27. The Attorney General's percentage has undergone little change even though the number of submissions has increased over time. For example, when Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), was decided, the Department of Justice had received 251 submissions from States covered under § 5 and had approved over 99 percent of the submissions. Id., at 549, n. 5, 89 S.Ct., at 549, n. 5. Figures available in 1978 indicated that the Department processed 1800 submissions annually, and had approved over 98 percent of those submissions. Dougherty County Bd. of Education v. White, 439 U.S., at 41, 99 S.Ct., at 374.
7. In the past, various Members of the Court have objected to the types of changes that require preclearance under § 5 in covered States, and have predicted that the Court's construction of the statute would leave it without boundaries. In Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971), for example, Justice Harlan expressed the view that the Court was mistaken in holding that annexations are within the scope of § 5 and that the Court had gone too far in its interpretation of "with respect to voting": "Given 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. In effect, therefore, the Court requires submission of any change which has an effect on voting." Id., at 398, 91 S.Ct., at 442 (opinion concurring in part and dissenting in part). Similarly, Justice Powell, taking the view in Dougherty that a "personnel rule" should not fall within the scope of § 5 as the Court had held, was concerned that "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." 439 U.S., at 54, 99 S.Ct., at 380 (dissenting opinion) (footnote omitted). The fears the Court expresses today, see ante, at 507, are no more likely to be realized than those expressed by Justice Harlan and Justice Powell years ago.
8. See, e.g., Perkins v. Matthews, 400 U.S., at 390-391, 91 S.Ct., at 437-438 ("Our conclusion that both the location of the polling places and municipal boundary changes come within § 5 draws further support from the interpretation followed by the Attorney General in his administration of the statute"); United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 131, 98 S.Ct. 965, 979, 55 L.Ed.2d 148 (1978); Dougherty County Bd. of Education v. White, 439 U.S., at 39, 99 S.Ct., at 372.
9. NAACP v. Hampton County Election Comm'n, 470 U.S., at 178-179, 105 S.Ct., at 1135-1136.
10. "Tests or devices" include
11. See United States v. Sheffield Bd. of Comm'rs., 435 U.S., at 148, n. 10, 98 S.Ct., at 987, n. 10 (STEVENS, J., dissenting); see also U.S.C.ommission on Civil Rights, The Voting Rights Act: Ten Years After, p. 25, n. 53 (1975) ("In the first 6 years of the act, section 5 was hardly used at all").
12. Allen was argued along with Fairley v. Patterson, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (§ 5 applied to a change from district to at-large election of county supervisors), Bunton v. Patterson, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (§ 5 applied to change in which the position of county officer became appointive instead of elective), and Whitley v. Williams, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (changes aimed at increasing the difficulty for an independent candidate to gain a position on a general election ballot were subject to § 5), on appeal from the United States District Court for the Southern District of Mississippi.
13. Although the majority today agrees that § 5 is not limited to only the changes covered in our earlier opinions, see ante, at 502, it nevertheless attempts to fit today's changes into one of the earlier models, see ante, at 503, 506-507. The Court's approach today marks a departure from the approach we have taken in the past. For example, in NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985), even though the Court recognized that it had "never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case," id., at 176, 105 S.Ct., at 1134, it nevertheless concluded that § 5 was broad enough to encompass a change in election date. Id., at 182-183, 105 S.Ct., at 1137-1138.
14. U.S.C.ommission on Civil Rights, The Voting Rights Act: Ten Years After, at 69 ("The end of formal barriers brought about by the Voting Rights Act resulted in an immediate increase in minority registration"); H.R.Rep. No. 94-196, p. 6 (1975) ("Prior to 1965, the black registration rate in the State of Alabama lagged behind that of whites in that state by 49.9 percentage points. In 1972, that disparity had decreased to 23.6 percentage points").
15. "[I]n modern-day voting rights cases such as this one, . . . racial discrimination will more than likely not show itself in the blatant forms of the past but instead will be subtle and sophisticated. . . ." App. to Juris. Statement of Appellant Presley 37a (Thompson, J., concurring in part and dissenting in part).
16. See Dougherty County Bd. of Education v. White, 439 U.S., at 38, 99 S.Ct., at 372 ("In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad construction set forth in Allen"); NAACP v. Hampton County Election Comm'n, 470 U.S., at 176, 105 S.Ct., at 1134 ("Our precedents recognize that to effectuate the congressional purpose, § 5 is to be given broad scope").
17. "After extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of § 5." Georgia v. United States, 411 U.S., at 533, 93 S.Ct., at 1707 (footnote omitted); see Dougherty County Bd. of Education v. White, 439 U.S., at 38-39, 99 S.Ct., at 372.
18. "Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the 'broad interpretations to the scope of Section 5' in Allen and Perkins v. Matthews." Dougherty, 439 U.S., at 39, 99 S.Ct., at 372.
19. "[T]he legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found 'virtual unanimity among those who [had] studied the record,' S.Rep. No. 97-417, p. 9 (1982), that § 5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision." NAACP v. Hampton County Election Comm'n, 470 U.S., at 176, 105 S.Ct., at 1134 (footnote omitted).
20. Congress recognized that "since the adoption of the Voting Rights Act, covered jurisdictions have substantially moved from direct, over[t] impediments to the right to vote to more sophisticated devices that dilute minority voting strength," S.Rep. No. 97-417, p. 10 (1982), U.S.C.ode Cong. & Admin. News 1982, pp. 177, 187, and that § 5 was intended to be responsive to this shift:
21. On September 10, 1971, the Department of Justice first adopted regulations implementing § 5's preclearance provisions. S.Rep. No. 94-295, p. 16 (1975), U.S.C.ode Cong. & Admin. News 1975, p. 774; see 36 Fed.Reg. 18186 (Sept. 10, 1971); 28 CFR pt. 51 (1972); see also Georgia v. United States, 411 U.S. 526, 536-541, 93 S.Ct. 1702, 1708-1711, 36 L.Ed.2d 472 (1973) (approving regulations).
22. The District Court was also wrong to exempt the Common Fund Resolution from § 5 preclearance on the ground that "the common fund resolution was, in practical terms, insignificant in comparison to the entire Commission's authority. . . ." App. to Juris. Statement of Appellant Presley 19a. This is clearly the wrong test in light of our earlier cases, in which we have said that even "minor" changes affecting elections and voting must be precleared. Allen v. State Bd. of Elections, 393 U.S., at 566, 568, 89 S.Ct., at 832, 833 ("It is significant that Congress chose not to include even . . . minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny"); see also Perkins v. Matthews, 400 U.S., at 387, 91 S.Ct., at 436. For example, the Court has said that § 5 preclearance applies to the transfer of a polling place, Perkins, 400 U.S., at 388, 91 S.Ct., at 437, and the extension of city limits to include uninhabited territory, Pleasant Grove v. United States, 479 U.S. 462, 467, 107 S.Ct. 794, 797, 93 L.Ed.2d 866 (1987), even though these changes might, at first blush, appear to be "insignificant." The District Court mistakenly blurred the distinction between whether a change is subject to preclearance, which turns on whether the change has the potential for discrimination, and whether the change should, in fact, be precleared, which turns on whether the change would have a discriminatory purpose or effect. The distinction is important because "[t]he discriminatory potential in seemingly innocent or insignificant changes can only be determined after the specific facts of the change are analyzed in context. The present coverage formula allows for such a factual analysis." Hearings on Extension of the Voting Rights Act before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., 2122 (1981) (testimony of Drew Days, Professor, Yale Law School and former U.S. Assistant Attorney General, Civil Rights Division, Department of Justice); see H.R.Rep. No. 97-227, p. 35 (1981); NAACP v. Hampton County Election Comm'n, 470 U.S., at 176, n. 21, 105 S.Ct., at 1134, n. 21.
23. The District Court approved a consent decree that provided, inter alia, for an increase in the number of Etowah County Commissioners in order to remedy the unlawful dilution of black voting strength caused by the prior at-large election system. See Dillard v. Crenshaw County, CA No. 85-T-1332-N (MD Ala., Nov. 12, 1986); ante, at 496. The decree expanded the Commission to six members, all of whom would eventually be elected from single-member districts. See App. to Juris. Statement of Appellant Presley 5a. The consent decree specified that the commissioners elected in 1986 were to have the same duties as the four holdover commissioners. Ibid. (decree provided that the two new commissioners " 'shall have all the rights, privileges, duties and immunities of the other commissioners, who have heretofore been elected at large' "). In August, 1987, however, the commission passed the Road Supervision Resolution, which authorized the four holdover commissioners to continue to exercise authority over road operations in their districts, but which assigned non-road duties to the two new commissioners. Id., at 6a. On the same day, the same commission adopted a second resolution, the Common Fund Resolution, which abolished the practice of allocating road funds to districts, and created a common fund, thus transferring authority for determining funding priorities from the individual commissioners to the entire commission. Id., at 6a-7a. However, the Common Fund Resolution contained a grandfather clause that permitted each holdover commissioner to maintain control over unspent funds for the 1986-1987 fiscal years, and a provision that required all 1987-1988 road maintenance to be done out of the " 'four present road shops.' " Id., at 29a. Thus, the Common Fund Resolution, when combined with the Road Supervision Resolution, which gave the four holdover commissioners exclusive control over the road shops, meant that the four holdover commissioners could effectively have complete control over all road and bridge funds.
24. The Court is strangely silent about the first half of the Etowah County majority's response to the election of Commissioner Presley. The logic of its analysis would lead to the conclusion that even the Road Supervision Resolution is not covered by § 5, but one cannot be sure because the Court recognizes that an otherwise uncovered enactment "might under some circumstances rise to the level of a de facto replacement of an elective office with an appointive one." Ante, at 831. Despite the Court's overriding interest in formulating "workable rules to confine the coverage of § 5 to its legitimate sphere," ante, at 506, the scope of that exception must await future cases.
25. According to one judge on the three-judge District Court, the change "was adopted to eliminate a practice that had proved inefficient and conducive to abuses . . . [and] eventually resulted in a criminal indictment of one of the commissioners." App. to Juris. Statement of Appellant Presley 25a (Hobbs, J., concurring).
26. In addition to the comment by Congressman McCulloch quoted, supra, at 519-520, the Court also quoted from a then recent study of the operation of the Voting Rights Act by the United States Civil Rights Commission, as follows:
27. In Russell County, the voters continue to elect county commissioners, but the most significant power previously held by those commissioners has been shifted to the county engineer, who is appointed by the Commission. The effect of this change, as in Bunton v. Patterson, 393 U.S., at 550-551, 89 S.Ct., at 823-824 (change in which office is made appointive rather than elective is subject to § 5 preclearance), and McCain v. Lybrand, 465 U.S., at 250, n. 17, 104 S.Ct., at 1046, n. 17, was less power for the voters over local affairs.