United States v. The Education Agency (Austin Independent School District) Brief in Opposition to Petition for Rehearing En Banc

    Nos. 95-1455 & 95-1508

In The

Supreme Court of the United States
October Term, 1995

----------------- ♦ -----------------

JANET RENO, ATTORNEY GENERAL 
OF THE UNITED STATES,

and
Appellant,

GEORGE PRICE, ET AL.,
Appellants,

BOSSIER PARISH SCHOOL BOARD,

♦
Appellee.

On Appeal From The United States District Court 
For The District Of Columbia

-----------------♦ -----------------

BRIEF AMICI CURIAE OF AMERICAN CIVIL 
LIBERTIES UNION AND THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

IN SUPPORT OF APPELLANTS

E la in e  R. J o n es 
Director-Counsel 
N o rm a n  J . C h a ch k in  
J a cq u elin e  B errien  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

L a u g h lin  M c D o n a ld  
N eil  B ra d ley  
M a h a  S. Z a ki 
American Civil Liberties 

Union Foundation 
44 Forsyth Street 
Suite 202
Atlanta, GA 30303 
(404) 523-2721
S tev en  R. S h a piro  
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800 
Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ...................... ........................  ii

INTEREST OF AMICI CURIAE............. 1

SUMMARY OF ARGUMENT........................................... 2

ARGUMENT ...................................................     5

I. Section 2 Applies to Section 5 Preclearance........ 5

A. Interpretation of Section 5 Effects Test Prior
to 1982 ..................     6

B. Congressional Action in 1982 .....................   8

C. The Attorney General's Regulations . . . . . . . .  11

D. The Legislative History Cannot Be Dis­
counted...............       13

E. Congress Did Amend the Voting Rights Act . . 16

F. Some Voting Changes Are Not Amenable to 
Analysis Under the Retrogression Standard. . . .  18

CONCLUSION...................................................................  20



ii

TABLE OF AUTHORITIES
Page

C a ses :

American Jewish Congress v. Kreps, 574 F.2d 624
(D.C.Cir. 1 9 7 8 )................................... ...................... . 13

Beer v. United States, 425 U.S. 130 (1976)
........................................ .......................... ... 2, 6, 7, 8, 10, 19

Bush v. Vera, 1996 WL 315857 (U.S. June 13, 1996) . . . . .  1

Chisom v. Roemer, 501 U.S. 380 (1991)..................... 1, 15

City of Mobile v. Bolden, 446 U.S. 55 (1980)............... 6

City of Richmond, Virginia v. United States, 422
U.S. 358 (1975)..................................................................  18

City of Lockhart v. United States, 460 U.S. 124
(1983)........................................................................................5

City of Rome v. United States, 446 U.S. 156 (1980) . . . .  14

Connecticut National Bank v. Germain, 503 U.S.
249 (1992)......................................................................   9

FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) . . . .  15

Garcia v. United States, 469 U.S. 70 (1984).................  13

Georgia v. Reno, 881 F.Supp. 7 (D.D.C. 1995)............... 2

Grove City College v. Bell, 465 U.S. 555 (1984).......... 16

Holder v. Hall, 114 S.Ct. 2581 (1994)....................... ...... 1

Horry County v. United States, 449 F.Supp. 990
(D.D.C. 1978).....................................................................  18

Houston Lawyers' Association v. Attorney Gen­
eral of Texas, 501 U.S. 419 (1991)...................................15

Johnson v. DeGrandy, 129 L.Ed.2d 775 (1994)...................... 9



Ill

TABLE OF AUTHORITIES -  Continued
Page

Lorillard v. Pons, 434 U.S. 573 (1978)..........................  10

McCain v. Lybrand, 465 U.S. 236 (1984)..................... . 18

McDaniel v. Sanchez, 452 U.S. 130 (1981)................... . 15

Miller v. Johnson, 115 S.Ct. 2475 (1995)..........1, 13

Mississippi v. Smith, 541 F.Supp. 1329 (D.D.C.
1982), appeal dism'd, 461 U.S. 912 (1983) ................. 6

Mississippi v. United States, 490 F.Supp. 569,
(D.D.C. 1979), aff'd mem., 444 U.S. 1050 (1980)........6

NAACP v. Button, 371 U.S. 415 (1963)  ............... . 1

NLRB v. Fruit Packers, 377 U.S. 58 (1964) .......... 15

North Haven Board of Education v. Bell, 456 U.S.
512 (1982)........................................................................... 15

Perkins v. Matthews, 400 U.S. 379 (1971)........... 9

Shaw v. Hunt, 1996 WL 315870 (U.S. June 13, 1996) . . . . .  1

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . . . .  17

Texas v. United States, 1995 WL 769160 (D.D.C.
1 9 9 5 ) . . . . . . . . . . . . . . . . . . .................................................... 2

Thornburg v. Gingles, 478 U.S. 30 (1986)
.................................... ................. .......... ... 1, 4, 5, 6, 13, 14

United Jewish Org. v. Carey, 430 U.S. 144 (1977)........1

United States v. Board of Commissioners of Shef­
field, Ala., 435 U.S. 110 (1978)......... 10, 13, 14, 19

United States v. Hays, 115 S.Ct. 2431 (1995).................. 1

Washington v. Davis, 426 U.S. 299 (1976). ......................6

White v. Regester, 412 U.S. 755 (1972)................. ........... 6



IV

TABLE OF AUTHORITIES -  Continued
Page

Wilkes County, Georgia v. United States, 450 
F.Supp. 1171 (D.D.C. 1978), aff'd mem., 439 U.S.
999 (1981)..............................................................................7

Zuber v. Allen, 396 U.S. 168 (1969) ........................... ... 13

C o n stitu tio n a l  P r o v isio n s :

Fourteenth Amendment..................................................6, 17

Fifteenth Amendment.............................................. .6, 17

S tatutory  P r o v isio n s :

Age Discrimination Act of 1975:
42 U.S.C. § 6102.................................................................. 16

42 U.S.C. § 6107.................................................................. 17

Civil Rights Act of 1964:
42 U.S.C. § 2000d..........................................................   17

28 U.S.C. § 2000d-4.....................................   17

Civil Rights Restoration Act of 1987 
Education Amendments of 1972:

20 U.S.C. § 1681(a).............................................................16

20 U.S.C. § 1687................................................................ .17

Rehabilitation Act of 1973:
29 U.S.C. § 794.. .........................................................  16

29 U.S.C. § 794(b)............................................................... 17



V

TABLE OF AUTHORITIES -  Continued
Page

Voting Rights Act of 1965:
42 U.S.C. § 1973, Section 2............5, 11, 12, 13, 14, 15

42 U.S.C. § 1973c, Section 5 ...................................passim

42 U.S.C. § 4(f)(4 )..................................................... 10

House and Senate Reports:
H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965).......... 14

H.R. Rep. No. 196, 94th Cong., 1st Sess. (1975).. .14, 15

Oversight Hearings on Proposed Changes to Reg­
ulations Governing Section 5 of the Voting 
Rights Act, before the Subcomm. on Civil and 
Constitutional Rights of the House Committee 
on the Judiciary House of Representatives, 99th 
Cong., 1st Sess. (1985)....................... ............................. 12

S. Rep. No. 162, 89th Cong., 1st Sess. (1965)................ 14

S. Rep. No. 295, 94th Cong., 2d Sess. (1975)...............   15

S. Rep. No. 417, 97th Cong., 2d Sess. (1982).... 3, 9, 15

S. Rep. No. 64, 100th Cong., 2d Sess. (1987).................  17

Subcommittee on Civil and Constitutional Rights 
of the Comm, on the Judiciary U.S. House of 
Representatives, 99th Cong., 2d Sess., Voting 
Rights Act: Proposed Section 5 Regulations 
(Comm. Print 1986 Ser. No. 9 ) ....................... 11,

Voting Rights Act: Hearings Before the Subcomm. 
on the Constitution of the Senate Comm, on the 
Judiciary, 97th Cong., 2d Sess. (1982) 10



V I

TABLE OF AUTHORITIES -  Continued
Page

O t h e r :

28 C.F.R. § 51.55(b)(2) ...........................................................12

28 C.F.R. § 51.54(b)(3)............................................................ 7

28 C.F.R. § 51.54(b)(4).....................................  18

128 Cong. Rec. H3841 ...................................   3, 9

128 Cong. Rec. H3840-41.  3, 9

128 Cong. Rec. S7095 ......    .3, 9

50 Fed. Reg. 19122 (1985).....................................  12

52 Fed. Reg. 486-90 (1987).................................................  19

M isc ella n eo u s :

Gayle Binion, "The Interpretation of Section 5 of 
the 1965 Voting Rights Act: A Retrospective on 
the Role of Courts," 32 W .Pol.Q. 154 (1979)..............7

Richard L. Engstrom, "Racial Vote Dilution: 
Supreme Court Interpretation of Section 5 of the 
Voting Rights Act," 4 So.U.L.Rev. 139 (1978).............. 7

Mark E. Haddad, "Getting Results Under Section 
5 of the Voting Rights Act," 94 Yale L.J. 139 
(1984)..............................................................   7

Heather K. Way, "A Shield or a Sword? Section 5 
of the Voting Rights Act and the Argument for 
the Incorporation of Section 2," 74 Tex.L.Rev.
1439 (1996)..................................................................   11



1

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with 
nearly 300,000 members dedicated to defending the prin­
ciples of liberty and equality embodied in the Constitu­
tion and this nation's civil rights laws. As part of that 
commitment, the ACLU has been active in defending the 
equal right of racial and other minorities to participate in 
the electoral process. Specifically, the ACLU has partici­
pated in voting cases before this Court, both as direct 
counsel, see, e.g., Holder v. Hall, 114 S.Ct. 2581 (1994), 
Miller v. Johnson, 115 S.Ct. 2475 (1995), and as amicus 
curiae, see, e.g., United States v. Hays, 115 S.Ct. 2431 (1995).

The NAACP Legal Defense and Educational Fund, 
Inc. is a nonprofit corporation chartered by the Appellate 
Division of the New York Supreme Court as a legal aid 
society. The Fund was established for the purpose of 
assisting African Americans in securing their constitu­
tional and civil rights. See NAACP v. Button, 371 U.S. 415, 
422 (1963) (noting Fund's "reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation"). The Fund has 
participated in many of the significant constitutional and 
statutory voting rights cases in this Court. See e.g., United 
Jewish Org. v. Carey, 430 U.S. 144 (1977); Thornburg v. 
Gingles, 478 U.S. 30 (1986); Chisom v. Roemer, 501 U.S. 380 
(1991); Shaw v. Hunt, 1996 WL 315870 (U.S. June 13, 1996); 
and Bush v. Vera, 1996 WL 315857 (U.S. June 13, 1996). 

---------- ----- ♦ —-------------

1 Letters of consent to the filing of this brief have been 
lodged with the Clerk of the Court pursuant to Rule 37.3.



2

SUMMARY OF ARGUMENT

The appeal of this declaratory judgment action under 
Section 5 of the Voting Rights Act presents two separate 
issues: (1) whether the district court erred in holding that 
the Bossier Parish School Board carried its burden of pro­
ving a lack of discriminatory purpose in enacting its redis­
tricting plan, and (2) whether a violation of Section 2 of the 
Voting Rights Act provides an independent basis for deny­
ing preclearance under Section 5. Amici agree that, in this 
case, it is unnecessary for the Court to reach the second 
issue, because the district court majority clearly erred in 
applying the purpose prong of Section 5, and its decision 
must be reversed on that basis. In the event, however, that 
the Court reaches the second issue, this amici brief is 
submitted to describe the context and legislative history of 
amended Section 2 which clearly demonstrate Congress' 
intent to assure that a voting change violating Section 2 of 
the Act would not be required to receive preclearance 
under Section 5 of the Act. To avoid repetition of the 
arguments in the principal briefs, the amici brief is limited 
to this latter issue, as to which amici have a special interest 
based on their involvement as counsel in past Section 5 
cases that have addressed this issue. See Georgia v. Reno, 
881 F.Supp. 7 (D.D.C. 1995) (three-judge court); Texas v. 
United States, 1995 WL 769160 (D.D.C. 1995) (three-judge 
court).

The legislative history of the 1982 amendments and 
extension of the Voting Rights Act show that Congress 
intended for the results standard of Section 2 to apply to 
Section 5 preclearance. Congress was well aware of the 
limitations of the retrogression standard of Beer v. United 
States, 425 U.S. 130 (1976), when it extended and



3

amended the Act in 1982. The Senate Report that accom­
panied the amendments provides that "[i]n light of the 
amendment to section 2, it is intended that a section 5 
objection also follow if a new voting procedure so dis­
criminates as to violate section 2." S. Rep. No. 417, 97th 
Cong., 2d Sess. 12 n,31 (1982).

The principal cosponsors of the 1982 amendments, 
Senator Kennedy and Representative Sensenbrenner, reit­
erated on the floors of the Senate and House during the 
legislative debates that "where there is a section 5 sub­
mission which is not retrogressive, it would be objected 
to only if the new practice itself violated the Constitution 
or amended section 2." 128 Cong. Rec. S7095 (daily ed. 
June 16, 1982) (remarks of Sen. Kennedy); 128 Cong. Rec. 
H3841 (daily ed. June 23, 1982) (remarks of Rep. Sen­
senbrenner). Representative Edwards, a sponsor of the 
final bill and chair of the House subcommittee with juris­
diction over the extension of the Act, concurred with 
Representative Sensenbrenner's interpretation of the bill. 
128 Cong. Rec. H3840-41.

Congress also acted with knowledge of the Attorney 
General's then established practice of denying pre­
clearance to changes which violated other provisions of 
the Act. When Congress reenacts a statute and voices its 
approval of an administrative or other interpretation of 
the statute, as it did in the Senate Report, Congress is 
treated as having adopted that interpretation, and the 
courts are bound by it.

The Senate Report is entitled to greater weight than 
any other of the legislative history. This Court has 
described the Senate Report as being "the authoritative



4

source" for construction of the 1982 amendments to the 
Act. Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986). It has 
been the established practice of the Court, moreover, to 
examine the applicable committee reports to determine 
congressional intent and the meaning of specific provi­
sions of the Voting Rights Act, particularly Section 5, 
where the statute itself was silent or ambiguous.

While Congress did not amend Section 5, it did 
amend the Voting Rights Acts and provided that 
amended Section 2 was to apply to preclearance. It is 
common for Congress to add a provision to an act and 
apply it to a second provision of the same act without 
changing the language of the second provision.

Some voting changes are not amenable to analysis 
under a retrogression standard. A change from appointed 
to elected county commissioners, for example, would be 
covered by Section 5, but it might be difficult to deter­
mine the effect of such a change based upon a retrogres­
sion analysis. In other cases, there may be no practice or 
procedure at all that can be used as a benchmark for 
determining retrogression, e.g., where a newly incorpo­
rated college district or municipality selects for the first 
time a method of conducting elections. Under the circum­
stances, a voting plan which fairly reflects the strength of 
the minority community as it exists would furnish the 
logical and appropriate basis for comparison.

The application of Section 2 to preclearance would 
not cause a major or disruptive change in the administra­
tion of Section 5. The Attorney General has administered 
the statute in such a manner in the past. The purpose or 
effect standards would continue to apply and dispose of



5

the vast majority of submitted voting changes. It would 
make very little sense from the standpoint of public pol­
icy and conserving judicial resources to allow violations 
of one section of the Voting Rights Act (Section 2) to be 
approved by another (Section 5). Such a result would 
undercut the enforcement mechanisms and the overall 
purpose of the Act. The evidence shows that Congress 
intended to correct the anomalies of Beer by applying 
Section 2 to Section 5 preclearance.

-----------------* --------- -------

ARGUMENT

I. Section 2 Applies to Section 5 Preclearance

The legislative history of the 1982 amendments and 
extension of the Voting Rights Act of 1965, 42 U.S.C. 
§ 1973 et seq., make it clear that Congress intended for the 
results standard of Section 2 to apply fully to Section 5 
preclearance. Accordingly, a covered jurisdiction such as 
Bossier Parish would be entitled to preclearance of its 
voting changes only if it showed that they did not 
"result" in discrimination as that term has been defined 
by Congress and the Supreme Court. Thornburg v. Gingles, 
478 U.S. 30, 35-8, 48-51 (1986).2

2 The issue of the applicability of Section 2 to Section 5 was 
presented in City o f Lockhart v. United States, 460 U.S. 124,133 n.9 
(1983), but because the district court had not passed on it this 
Court declined to grant review in the first instance.



6

A. Interpretation of Section 5 Effects Test Prior to 
1982

A majority of the Court, in a divided opinion, held in 
Beer v. United States, 425 U.S. 130 (1976), that only changes 
which were retrogressive or affirmatively diminished 
minority voting rights were prohibited by the "effect" 
language of Section 5.

Beer, however, was by its own terms ambiguous, for 
while the Court adopted a retrogression test, the Court 
nonetheless acknowledged that an ameliorative submis­
sion would be objectionable under Section 5 if it "so 
discriminates on the basis of race or color as to violate the 
Constitution." 425 U.S. at 141. Cases cited by the majority 
in Beer as illustrative of the applicable constitutional stan­
dard included White v. Regester, 412 U.S. 755 (1972), which 
applied an effect standard in minority vote dilution cases. 
See Thornburg v. Gingles, 478 U.S. at 35 (describing White v. 
Regester as embodying a "results test").3 Thus, Beer itself 
may properly be said to contain an anti-dilution excep­
tion to the very retrogression standard which it pur­
ported to establish.4

3 Washington v. Davis, 426 U.S. 299 (1976), and City o f Mobile 
v. Bolden, 446 U.S. 55 (1980), which held respectively that proof 
of a discriminatory purpose was required for a violation of the 
Fourteenth or Fifteenth Amendments, were decided after Beer.

4 The retrogression standard of Beer was strongly criticized 
by legal com m entators. Principal objections were that it 
sa n ctio n e d  and p e rp e tu a te d  vote d ilu tio n , rew ard ed  
jurisdictions with the worst histories of discrimination against 
minority voters, and largely ignored the legislative history and 
underlying purposes of the Voting Rights Act. Gayle Binion, 
"The Interpretation of Section 5 of the 1965 Voting Rights Act: A



7

In recognition of its limitations and anomalies, the 
courts created a number of exceptions to the strict appli­
cation of the retrogression principle. For example, the 
District of Columbia court has held that a new legislative 
plan cannot be approved, even if it is not retrogressive 
compared with the preexisting legislative plan, if it 
diminishes minority voting strength when compared with 
an intervening court ordered plan. Mississippi v. United 
States, 490 F.Supp. 569, 582 (D.D.C. 1979), aff'd mem., 444 
U.S. 1050 (1980); Mississippi v. Smith, 541 F.Supp. 1329, 
1333 (D.D.C. 1982) (three-judge court), appeal dism'd, 461 
U.S. 912 (1983). Preexisting districts that have not them­
selves been precleared may also not be used in determin­
ing if a submission is retrogressive. Mississippi v. Smith, 
541 F.Supp. at 1332. Accord, 28 C.F.R. § 51.54(b)(3).

In Wilkes County, Georgia v. United States, 450 F.Supp. 
1171 (D.D.C. 1978) (three-judge court), aff'd mem., 439 
U.S. 999 (1981), the court created another important 
exception to Beer where an existing plan was malappor- 
tioned. Wilkes County, which was 47% black, sought pre­
clearance of a change from district to at-large elections. It 
argued that the proposed change did not have a discrimi­
natory effect within the meaning of Beer because even if 
blacks were not able to elect candidates of their choice

Retrospective on the Role of Courts," 32 W.Pol.Q. 154, 171 
(1979); Richard L. Engstrom, "Racial Vote Dilution: Supreme 
Court Interpretation of Section 5 of the Voting Rights Act," 4 
So.U.L.Rev. 139, 162 (1978); Mark E. Haddad, "Getting Results 
Under Section 5 of the Voting Rights Act," 94 Yale L.J. 139 (1984).



8

at-large, neither did they control any of the preexisting 
single member districts. The court rejected the county's 
argument:

Since the existing districts are severely malap- 
portioned, it is appropriate, in measuring the 
effect of the voting changes, to compare the 
voting changes with options for properly appor­
tioned single-member district plans.

450 F.Supp. at 1178. Based upon the census, if Wilkes 
County had been divided into fairly drawn single-mem­
ber districts of equal population, the black population in 
one district could have been as high as 71%. Using the 
proper basis for comparison, the court concluded that 
blacks were worse off under the change, and that "the at- 
large method has . . .  a racially discriminatory effect." Id.

B. Congressional Action in 1982

Congress was well aware of Beer and its limitations 
when it extended and amended the Voting Rights Act in 
1982. In amending Section 2 it incorporated the results 
standard for determining the lawfulness of voting prac­
tices, and provided that the amended statute was to 
apply to Section 5 preclearance. According to the Senate 
Report that accompanied the amendments:

Under the rule of Beer v. United States . . .  a 
voting change which is ameliorative is not 
objectionable unless the change 'itself so dis­
criminates on the basis of race or color as to 
violate the Constitution.' . . .  In light of the 
amendment to section 2, it is intended that a 
section 5 objection also follow if a new voting 
procedure so discriminates as to violate section 2.



9

S. Rep. No. 417, 97th Cong., 2d Sess. 12 n,31 (1982) 
(citations omitted).5

The principal cosponsors of the 1982 amendments, 
Senator Kennedy and Representative Sensenbrenner, reit­
erated on the floors of the Senate and House during the 
legislative debates that "where there is a section 5 sub­
mission which is not retrogressive, it would be objected 
to only if the new practice itself violated the Constitution 
or amended section 2." 128 Cong. Rec. S7095 (daily ed. 
June 16, 1982) (remarks of Sen. Kennedy); 128 Cong. Rec. 
H3841 (daily ed. June 23, 1982) (remarks of Rep. Sen­
senbrenner). Representative Edwards, a sponsor of the 
final bill and chair of the House subcommittee with juris­
diction over the extension of the Act, concurred with 
Representative Sensenbrenner's interpretation of the bill. 
128 Cong. Rec. H3840-41.

Congress also acted with knowledge of the Attorney 
General's then established practice of denying pre­
clearance to changes which violated other provisions of 
the Act. The Attorney General, for example, had consis­
tently denied Section 5 preclearance to changes which 
violated Section 4(f)(4) of the Act, a provision requiring

5 Given the ambiguity in the effect standard, resort to the 
legislative history to determine its meaning is both necessary 
and proper. See Connecticut National Bank v. Germain, 503 U.S. 
249, 253-54 (1992). The Court has regularly applied this 
principle in construing the Voting Rights Act. See, e.g., Johnson v. 
DeGrandy, 129 L.Ed.2d 775, 795 (1994); Perkins v. Matthews, 400 
U.S. 379, 389 n.8 (1971).



10

certain jurisdictions to implement bilingual voting pro­
cedures. Voting Rights Act: Hearings Before the Sub- 
comm. on the Constitution of the Senate Comm, on the 
Judiciary, 97th Cong., 2d Sess. 1659 (1982) [hereinafter 
Voting Rights Act Hearings (1982)]. This interpretation of 
Section 5 was reported to Congress by William Bradford 
Reynolds, Assistant Attorney General for Civil Rights, 
when it considered the extension and amendment of the 
Act in 1982. Voting Rights Act Hearings (1982) at 1659, 
1720.

In its discussion of Beer, the Senate Report also noted 
and approved the Attorney General's practice of not 
applying a strict retrogression test, but treating submis­
sions "on a case-by-case basis, 'in light of all the facts.' " 
S. Rep. No. 417 at 12 n.31. When Congress reenacts a 
statute and voices its approval of an administrative or 
other interpretation of the statute, as it did in the Senate 
Report, "Congress is treated as having adopted that inter­
pretation, and the Court is bound thereby." United States 
v. Board of Commissioners of Sheffield, Ala., 435 U.S. 110, 134 
(1978). Accord, Lorillard v. Pons, 434 U.S. 573, 580 (1978) 
("Congress is presumed to be aware of an administrative 
or judicial interpretation of a statute and to adopt that 
interpretation when it re-enacts a statute without 
change").

Congress further confirmed its intention that Section 
2 standards were to apply to preclearance when it con­
ducted oversight hearings in 1985 on the Attorney Gen­
eral's proposed revisions of the regulations governing 
Section 5. According to the House Report, "the Subcom­
mittee concludes that it is a proper interpretation of the 
legislative history of the 1982 amendments to use Section



11

2 standards in the course of making Section 5 determina­
tions." Subcommittee on Civil and Constitutional Rights 
of the Comm, on the Judiciary U.S. House of Representa­
tives, 99th Cong., 2d Sess., Voting Rights Act: Proposed 
Section 5 Regulations 5 (Comm. Print 1986 Ser. No. 9) 
[hereinafter Comm. Print (1986)].6

The lower court's observation that Section 2 and 
Section 5 are "different," App. 15a, is a non sequitor. The 
sections are different. The issue, however, is whether 
Section 2 standards are to be applied in Section 5 pre­
clearance. The legislative history indicates that they 
should be.

C. The Attorney General's Regulations

In light of the 1982 amendments, the Attorney Gen­
eral adopted regulations in 1987 calling for the applica­
tion of Section 2 standards to Section 5 preclearance. The 
regulations, which were widely circulated prior to their

6 Follow ing those h earin gs, prom inent m em bers of 
C o n g re ss  e n d o rse d  th is  c o n s tru c tio n  of the A ct in 
correspondence addressed to the Attorney General following 
rumors that the Department of Justice would abandon the 
application of Section 2 standards in the Section 5 review 
process. Senator Dole, for example, stated that he had " 'a vital 
interest in assuring that the Voting Rights Act is interpreted 
. . . consistent with Congress' intent. Preclearing voting changes 
that violate Section 2 would threaten the integrity of Section 5 as 
a barrier to all illegal voting discrimination and be in direct 
conflict with the law's legislative history.' " See Heather K. Way, 
"A Shield or a Sword? Section 5 of the Voting Rights Act and the 
Argument for the Incorporation of Section 2", 74 Tex.L.Rev. 1439, 
1468 (1996) (quoting this and other letters).



12

promulgation7 and were the subject of Congressional 
hearings, see Oversight Hearings on Proposed Changes to 
Regulations Governing Section 5 of the Voting Rights Act, 
before the Subcomm. on Civil and Constitutional Rights 
of the House Committee on the Judiciary House of Repre­
sentatives, 99th Cong., 1st Sess. (1985) [hereinafter Over­
sight Hearings], provide that:

In those instances in which the Attorney Gen­
eral concludes that, as proposed, the submitted 
change is free of discriminatory purpose and 
retrogressive effect, but also concludes that a 
bar to implementation of the change is neces­
sary to prevent a clear violation of amended 
Section 2, the Attorney General shall withhold 
Section 5 preclearance.

28 C.F.R. § 51.55(b)(2).

Since the 1982 amendments and the promulgation of 
the regulations, the Attorney General has continued to 
object to submissions if they violated Section 2. See 
Comm. Print (1986) at 4; Oversight Hearings (1985) at 
210-12, 229-34 (describing Section 5 objections in 1983 to 
redistricting plans from Amite and Oktibbeha Counties, 
Mississippi on the grounds that they violated amended 
Section 2). While the regulations and decisions of the 
Attorney General are not binding upon the courts, the 
contemporaneous administrative construction of the Act 
by the Attorney General is persuasive evidence of the 
intent of Congress in enacting the 1982 amendments.

7 The regulations were published in proposed form for 
comment. 50 Fed. Reg. 19122 (May 6, 1985).



13

United States v. Board of Commissioners of Sheffield, Ala­
bama, 435 U.S. at 131.8

D. The Legislative History Cannot Be Discounted

Despite the evidence noted above, the court below 
held that Section 2 does not apply to Section 5 because 
the legislative history is not extensive. App. 17a. The 
Senate Report, as the report commended to the full Sen­
ate and representing the collective understanding of the 
members involved in drafting and studying the proposed 
legislation, is entitled to greater weight than any other of 
the legislative history. See Garcia v. United States, 469 U.S. 
70, 76 n.3 (1984) ("the authoritative source for finding the 
legislature's intent lies in the Committee Reports on the 
bill, which 'represent] the considered and collective 
understanding of those Congressmen involved in draft­
ing and studying proposed legislation,' " quoting Zuber v. 
Allen, 396 U.S. 168, 186 (1969); American Jewish Congress v. 
Kreps, 574 F.2d 624, 629 n.36 (D.C.Cir. 1978) ("[s]ince the 
conclusions in the conference report were commended to 
the entire Congress, they carry greater weight than other 
of the legislative history"). In addition, the Supreme 
Court has described the Senate Report as being "the 
authoritative source" for construction of the 1982 amend­
ments to the Act. Thornburg v. Gingles, 478 U.S. at 43 n.7.

8 In Miller v. Johnson, 115 S.Ct. 2475, 2493 (1995), the Court 
confirmed the retrogression standard of the effect prong of 
Section 5, but the issue of the incorporation of Section 2 
standards into preclearance was not presented, and thus not 
decided, in Miller.



14

In Thornburg v. Gingles, the amicus supporting the 
appellants argued that the report represented "a compro­
mise among conflicting 'factions/ and thus is somehow 
less authoritative than most Committee Reports." 478 
U.S. at 43 n.7. The Supreme Court rejected the claim.

We are not persuaded that the legislative history 
of amended § 2 contains anything to lead us to 
conclude that this Senate Report should be 
accorded little weight. We have repeatedly rec­
ognized that the authoritative source for legisla­
tive intent lies in the Committee Reports on the 
bill.

Id. The Court went on to rely extensively on the Senate 
Report and cited it numerous times in construing 
amended Section 2. 478 U.S. at 43-8.

It has been the established practice of the Court, 
moreover, to examine the applicable committee reports to 
determine congressional intent and the meaning of speci­
fic provisions of the Voting Rights Act, particularly Sec­
tion 5, where the statute itself was silent or ambiguous. In 
Beer, in determining how to measure discriminatory 
effect, as to which Section 5 itself was silent, the Court 
relied mainly upon the House Report of the 1975 exten­
sion of the Act. 425 U.S. at 141 (citing H.R. Rep. No. 196, 
94th Cong., 1st Sess. 60 (1975)). In City of Rome v. United 
States, 446 U.S. 156, 168-69 (1980), the Court resolved the 
question whether individual jurisdictions could bailout 
from Section 5 coverage by examining the House and 
Senate Reports. 446 U.S. at 168-69 (citing H.R. Rep. No. 
439, 89th Cong., 1st Sess. (1965), and S. Rep. No. 162, 89th 
Cong., 1st Sess. (1965)). In United States v. Board of Com­
missioners of Sheffield County, Alabama, in concluding that



15

subjurisdictions were subject to preclearance by virtue of 
statewide Section 5 coverage, the Court found partic­
ularly "significant" the discussion of the issue in the 
House and Senate reports. 435 U.S. at 134 (citing S. Rep. 
No. 295, 94th Cong., 2d Sess. 12 (1975), and H.R. Rep. No. 
196 at 5). In McDaniel v. Sanchez, 452 U.S. 130 (1981), the 
Court discussed the 1975 committee reports at length in 
holding that any voting change, including those ordered 
into effect by a local federal court, which reflects the 
policy choices of elected officials is subject to Section 5. 
452 U.S. at 146-51 (citing S. Rep. No. 295 and H.R. Rep. 
No. 196). In Chisom v. Roemer, 501 U.S. 380, 393-394 ns.20, 
21, 395 n.22 (1991) (citing S. Rep. No. 417), and Houston 
Lawyers' Association v. Attorney General of Texas, 501 U.S. 
419 (1991), the Court found that state appellate and trial 
court judges were "representatives" within the meaning 
of Section 2 based, inter alia, upon the 1982 Senate Report. 
Clearly, there is no basis for contending that the Section 2 
incorporation argument fails because it relies primarily 
upon the Senate Report, App. 17a; the report is the 
authoritative source of construction of the Act.

The claim that the legislative history is not extensive 
also discounts the fact that the principal cosponsors of 
the 1982 amendments stated during the floor debates that 
Section 2 was to apply to preclearance. Because these 
members of Congress were sponsors and principal archi­
tects of the 1982 amendments, their views "deservje] to 
be accorded substantial weight." NLRB v. Fruit Packers, 
377 U.S. 58, 66 (1964); North Haven Board of Education v. 
Bell, 456 U.S. 512, 527 (1982) (the statements of a sponsor 
of a bill "are an authoritative guide to the statute's con­
struction"); FEA v. Algonquin SNG, Inc., 426 U.S. 548, 564



16

(1976). Every time the issue was directly addressed -  in 
the debates and in the Senate Report -  the conclusion was 
that Section 2 was applicable to Section 5.9

E. Congress Did Amend the Voting Rights Act

The lower court also held that Congress did not 
intend to import Section 2 standards into Section 5 
because it did not amend the latter statute. App. 20a. 
Congress did, however, amend the Voting Rights Act and 
provided that amended Section 2 was to apply to pre­
clearance.

It is common for Congress to add a provision to an 
act and apply it to a second provision of the same act 
without changing the language of the second provision. 
For example, Congress enacted the Civil Rights Restora­
tion Act of 1987 in response to Grove City College v. Bell, 
465 U.S. 555 (1984),10 to amend four pre-existing civil 
rights acts, i.e., Title IX of the Education Amendments of 
1972, 20 U.S.C. § 1681(a); Section 504 of the Rehabilitation 
Act of 1973, 29 U.S.C. § 794; the Age Discrimination Act 
of 1975, 42 U.S.C. § 6102; and, Title VI of the Civil Rights

9 That the floor debate was limited is not surprising in view 
of the fact that Section 5 preclearance (as opposed to its 
duration) was not a very controversial issue. It was the 
am endm ent of Section  2 that absorbed the attention of 
Congress. Comm. Print (1986) at 4.

10 Grove City held that discrimination in a "program or 
activity" of a college didn't subject the institution as a whole to 
the nondiscrimination provisions of Title IX of the Education 
Amendments of 1972, 20 U.S.C. § 1681(a).



17

Act of 1964, 42 U.S.C. § 2000d, and provide that discrimi­
nation was prohibited throughout entire institutions or 
agencies if any part received federal financial assistance. 
The Civil Rights Restoration Act did not, however, make 
any changes or add any language to the coverage or fund 
termination provisions of the pre-existing acts. S. Rep. 
No. 64, 100th Cong., 2d Sess. (1987). Moreover, in three of 
the four instances, amendment was accomplished by 
adding an entirely separate provision defining the term 
"program or activity" in a broad, institution-wide man­
ner. Title IX was amended by 20 U.S.C. § 1687; the Age 
Discrimination Act was amended by 42 U.S.C. § 6107; 
and, Title VI was amended by 28 U.S.C. § 2000d-4. In only 
one instance was the statute creating the prohibition of 
discrimination itself amended, the Rehabilitation Act of 
1973, 29 U.S.C. § 794(b).

Congress did the same thing when it enacted the 
1982 amendments to the Voting Rights Act as it did when 
it passed the Civil Rights Restoration Act of 1987 amend­
ing the pre-existing civil rights statutes. It did not add 
new language to Section 5, but instead amended Section 2 
and provided in the legislative history that Section 2 was 
to apply to preclearance. Given its broad authority to 
enforce the Fourteenth and Fifteenth Amendments by 
appropriate legislation, South Carolina v. Katzenbach, 383 
U.S. 301, 326-27, 337 (1966), Congress did not exceed its 
powers in acting as it did.



18

F. Some Voting Changes Are Not Amenable to 
Analysis Under the Retrogression Standard

The argument that the anti-dilution standard of Sec­
tion 2 does not apply to Section 5 does not take proper 
account of the fact that the effect of some voting changes 
is simply not amenable to analysis under a retrogression 
standard. A change from appointed to elected county 
commissioners, for example, would be covered by Section 
5, McCain v. Lybrand, 465 U.S. 236, 250 n.17 (1984), Horry 
County v. United States, 449 F.Supp. 990, 995 (D.D.C. 1978), 
but it might be extremely difficult to determine the effect 
of such a change based upon a retrogression analysis. If 
the change were to at-large elections or single-member 
districts which fragmented the minority community and 
diluted its voting strength, would it nonetheless be enti­
tled to preclearance if under the old system no minorities 
had been appointed to the commission, and there was no 
evidence that the change was racially motivated? The 
difficulty with retrogression analysis under these circum­
stances is that there is no pre-existing electoral system 
which can be used as a basis for comparing the effect of 
the new practice.

In other cases, there may be no practice or procedure 
at all that can be used as a benchmark for determining 
retrogression, e.g., where a newly incorporated college 
district or municipality selects for the first time a method 
of conducting elections. See 28 C.F.R. § 51.54(b)(4). Under 
the circumstances, a voting plan which "fairly reflects" 
the strength of the minority community as it exists would 
furnish the logical and appropriate basis for comparison. 
City o f Richmond v. United States, 422 U.S. 358, 378 (1975).



19

The application of Section 2 to preclearance would 
not cause a major or disruptive change in the administra­
tion of Section 5. Indeed, the Attorney General has 
administered the statute in such a manner in the past. 
The purpose or effect standards would continue to apply 
and dispose of the vast majority of submitted voting 
changes. According to the Attorney General, during his 
review of the thousands of voting changes submitted 
since the 1982 amendments, "only a handful . . . even 
arguably presented th[e] possibility" of being disposed of 
on Section 2 grounds. 52 Fed. Reg. 486-90 (1987) (com­
ments to 28 C.F.R. § 51). In those relatively rare -  but 
important -  cases where a retrogression analysis was not 
applicable, or where a voting change which did not have 
a d iscrim inatory purpose or effect nevertheless 
"resulted" in discrimination, an anti-dilution standard 
should apply.

It would make very little sense from the standpoint 
of public policy and conserving judicial resources to 
allow violations of one section of the Voting Rights Act 
(Section 2) to be approved by another (Section 5). Such a 
paradigm would undercut the enforcement mechanisms 
and the overall purpose of the Act.11 The evidence shows 
that Congress intended to correct the anomalies of Beer by 
applying Section 2 to Section 5 preclearance.

-----------------♦ -----------------

11 See Sheffield, 435 U.S. at 136 ("The only recourse available 
would be the one Congress found to be unsatisfactory: repeated 
litigation").



20

CONCLUSION

For the foregoing reasons, the decision below should 
be reversed.

Respectfully submitted,

L a u g h lin  M cD o n a ld  
N eil  B ra dley  
M a h a  S. Z aki 
American Civil Liberties 

Union Foundation 
44 Forsyth St. NW -  Suite 202 
Atlanta, GA 30303 
(404) 523-2721

S tev en  R. S h a piro  
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800
E la in e  R. J on es 
Director-Counsel 
N o rm a n  J . C h a ch kin  
J a c q u elin e  B errien  
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900