MR. JUSTICE MARSHALL delivered the opinion of the Court.
Under § 5 of the Voting Rights Act of 1965,
The facts in this case are not in dispute. Appellee, a Negro, is employed as Assistant Coordinator of Student Personnel Services by appellant Dougherty County Board of Education (Board). In May 1972, he announced his candidacy for the Georgia House of Representatives. Less than a month later, on June 12, 1972, the Board adopted Rule 58 without seeking prior federal approval. Rule 58 provides:
Appellee qualified as a candidate for the Democratic primary in June 1972, and was compelled by Rule 58 to take a leave of absence without pay. After his defeat in the
In June 1976, appellee filed this action in the Middle District of Georgia alleging that Rule 58 was a "standard, practice, or procedure with respect to voting" adopted by a covered entity and therefore subject to the preclearance requirements of § 5 of the Act.
On cross motions for summary judgment, the three-judge District Court held that Rule 58 should have been submitted for federal approval before implementation. 431 F.Supp. 919
The District Court therefore enjoined enforcement of Rule 58 pending compliance with the preclearance requirements of § 5. We noted probable jurisdiction. 435 U.S. 921 (1978). Since we find Allen v. State Board of Elections, supra, and United States v. Board of Comm'rs of Sheffield, 435 U.S. 110 (1978), dispositive of the issues presented in this appeal, we affirm.
Section 5 provides that whenever a covered State or political subdivision "shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force
This Court first considered the scope of the critical language of § 5 in Allen v. State Board of Elections, 393 U.S. 544 (1969), involving consolidated appeals in three cases from Mississippi and one from Virginia. After canvassing the legislative history of the Act, we concluded that Congress meant "to reach any state enactment which altered the election law of a covered State in even a minor way." 393 U. S., at 566.
In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad construction set forth in Allen. In Hadnott v. Amos, 394 U.S. 358 (1969), this Court held that an Alabama statute requiring independent candidates to declare their intention to seek office two months earlier than under prior procedures imposed "increased barriers" on candidacy and therefore warranted § 5 scrutiny. Id., at 366. Similarly, in contexts other than candidate qualification, we have interpreted § 5 expansively to mandate preclearance for changes in the location of polling places, Perkins v. Matthews, supra, alterations of municipal boundaries, Richmond v. United States, 422 U.S. 358 (1975); Petersburg v. United States, 410 U.S. 962 (1973), summarily aff'g 354 F.Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting plans, Georgia v. United States, supra.
Had Congress disagreed with this broad construction of § 5, it presumably would have clarified its intent when re-enacting the statute in 1970 and 1975. Yet, as this Court observed in Georgia v. United States, "[a]fter extensive deliberations
The Attorney General's regulations, in force since 1971, reflect an equally inclusive understanding of the reach of § 5. They provide that "[a]ll changes affecting voting, even though the change appears to be minor or indirect," must be submitted for prior approval. 28 CFR § 51.4 (a) (1977). More particularly, the regulations require preclearance of "[a]ny alteration affecting the eligibility of persons to become or remain candidates or obtain a position on the ballot in primary or general elections or to become or remain office-holders." § 51.4 (c) (4). Pursuant to these regulations, the Attorney General, after being apprised of Rule 58, requested its submission for § 5 clearance.
Despite these consistently expansive constructions of § 5, appellants contend that the Attorney General and District Court erred in treating Rule 58 as a "standard, practice, or procedure with respect to voting" rather than as simply "a means of getting a full days work for a full days pay—nothing more and nothing less." Brief for Appellants 20. In appellants' view, Congress did not intend to subject all internal personnel measures affecting political activity to federal superintendence.
The Board mischaracterizes its policy. Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather, it specifically addresses the electoral process, singling out candidacy for elective office as a disabling activity. Although not in form a filing fee, the Rule operates in precisely the same fashion. By imposing substantial economic disincentives on employees who wish to seek elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to Dougherty County voters. Given the potential loss of thousands of dollars by employees subject to Rule 58, the Board's policy could operate as a more substantial inhibition on entry into the elective process than many of the filing-fee changes involving only hundreds of dollars to which the Attorney General has successfully interposed objections.
We do not, of course, suggest that all constraints on employee political activity affecting voter choice violate § 5. Presumably, most regulation of political involvement by public employees would not be found to have an invidious purpose or effect. Yet the same could be said of almost all changes subject to § 5. According to the most recent figures available, the Voting Rights Section of the Civil Rights Division processes annually some 1,800 submissions involving over 3,100 changes and interposes objections to less than 2%. Attorney General Ann. Rep. 159-160 (1977). Approximately
Without intimating any views on the substantive question of Rule 58's legitimacy as a nonracial personnel measure, we believe that the circumstances surrounding its adoption and its effect on the political process are sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance. Appellee was the first Negro in recent years to seek election to the General Assembly from Dougherty County, an area with a long history of racial discrimination in voting.
Section 5 applies to all changes affecting voting made by "political subdivision[s]" of States designated for coverage pursuant to § 4 of the Act. Although acknowledging that the Board is a political subdivision under state law,
Because the Board is neither a county, parish, nor entity
This contention is squarely foreclosed by our decision last Term in United States v. Board of Comm'rs of Sheffield, 435 U.S. 110 (1978). There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of § 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in § 14 (c) (2) of the Act. Rather, the "language, structure, history, and purposes of the Act persuade[d] us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions . . . ." 435 U. S., at 118. Accordingly, we held that once a State has been designated for coverage, § 14 (c) (2)'s definition of political subdivision has no "operative significance in determining the reach of § 5." 435 U. S., at 126.
Appellants attempt to distinguish Sheffield on the ground that the Board, unlike the city of Sheffield, does not itself conduct elections. Since the Board has no direct responsibilities in conjunction with the election of public officials, appellants argue that it does not "exercise control" over the voting process, id., at 127, and is not therefore subject to § 5.
Sheffield provides no support for such a cramped reading of the term "control." Our concern there was that covered jurisdictions could obviate the necessity for preclearance of voting changes by the simple expedient of "allowing local entities that do not conduct voter registration to control critical aspects of the electoral process." 435 U. S., at 125. We thus held that the impact of a change on the elective process, rather than the adopting entity's registration responsibilities, was dispositive of the question of § 5 coverage. Here, as the discussion in Part II, supra, indicates, a political unit with no nominal electoral functions can nonetheless exercise power
Nothing in the language or purpose of the Act compels such an anomalous result. By its terms, § 5 requires preclearance whenever a political subdivision within a covered State adopts a change in a standard, practice, or procedure with respect to voting. No requirement that the subdivision itself conduct elections is stated in § 5 and none is fairly implied.
Nor would appellants' interpretation of § 5 comport with any ascertainable congressional intent. The legislative history of the 1975 extension, the statute which is controlling here, leaves no doubt but that Congress intended all electoral changes by political entities in covered jurisdictions to trigger federal scrutiny. Both the supporters and opponents of the proposed extension appear to have shared the common understanding that under § 5 no covered jurisdiction may enforce a change affecting voting without obtaining prior approval. See Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 75-76 (1975) (testimony of Arthur Flemming, Chairman of the U. S. Commission on Civil Rights) (e. g., § 5 applies "to changes in voting laws, practices, and procedures that affect every stage of the political process"); Hearings on H. R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 19 (1975) (testimony of Arthur Flemming); 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials [are] concerned, which [are] made in precincts, county districts, school districts, municipalities, or State legislatures . . . [have] to be submitted"); id., at 24114 (1975) (remarks of Sen. Allen). Moreover, both the House and Senate Committees and witnesses at the House and Senate hearings referred to § 5's past and prospective application to school districts. See, e. g., 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis); Hearings on S. 407, supra, at 467-470 (testimony of George Korbel, EEOC Regional Attorney); Hearings on H. R. 939,
Because we conclude that Rule 58 is a standard, practice, or procedure with respect to voting enacted by an entity subject to § 5, the judgment of the District Court is
MR. JUSTICE STEWART dissents for the reasons expressed in Part I of the dissenting opinion of MR. JUSTICE POWELL.
MR. JUSTICE STEVENS, concurring.
Although I remain convinced that the Court's construction of the statute does not accurately reflect the intent of the Congress that enacted it, see United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 140-150 (STEVENS, J., dissenting), MR. JUSTICE MARSHALL has demonstrated that the rationale of the Court's prior decisions compels the result it reaches today. Accordingly, I join his opinion for the Court.
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
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.
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
Finally, § 5 requires preclearance only of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" (emphasis added).
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 enactments
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
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.
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 "conduc[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
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.
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.
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.
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.
"Whenever a State or political subdivision with respect to which the prohibitions set forth in [§ 4 (a) of the Act] based upon determinations made under the first sentence of [§ 4 (b) of the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. . . ."
"include all action necessary to make 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."
"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.
"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 conduct 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 preclearance." 435 U. S., at 139.