U.S. high court limits federal voting rights power By James Vicini WASHINGTON (Reuters) - A sharply divided Supreme Court Monday restricted the federal government's power under the voting rights law to reject some proposed redistricting changes in state and local elections. The high court, by a 5-4 vote, said the Justice Department's approval cannot be withheld when the new redistricting plan was adopted with a discriminatory purpose, but does not make matters worse for minority voters. At issue was one section of the voting rights law, which allowed the Justice Department to reject proposed changes if they were deemed to have a discriminatory ``purpose or effect.'' Writing for the court majority, Justice Antonin Scalia said that part of the law does not extend to a purpose that was discriminatory, but not retrogressive -- which does not leave minority voters worse off than they are under a current plan. The ruling involved the Bossier Parish school board in Louisiana, which for years has had its members elected to four-year terms from 12 different districts. About 20 percent of the parish's population is black, concentrated in two areas. But none of the 12 districts has a black majority. As of 1990, no black ever had been elected to the school board. After the 1990 census required a redrawing of the school board election map, the local NAACP chapter proposed creating two black-majority districts. The school board opted instead for a new map in 1992 with no such district, drawing a Justice Department objection. Justice Department lawyers decided the plan would dilute minority voting strength. But a special three-judge federal court disagreed and upheld the 1992 plan. The Justice Department and the president of the local NAACP chapter appealed to the Supreme Court. Scalia said the judges were correct in upholding the plan. He was joined by the court's other conservative members -- Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas. The court's more liberal members -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented. Stevens said the Justice Department in administering the voting rights law for the past 25 years has consistently taken a different interpretation than the view imposed by the court. Souter said, ``The behavior of Bossier Parish is a plain effort to deny the voting equality that the Constitution just as plainly guarantees.'' He said the federal government now will be forced to approve ``illegal and unconstitutional voting schemes patently intended to perpetuate discrimination.'' The case produced a Supreme Court ruling in 1997, when the justices made it harder for federal officials to reject proposed changes in district boundaries. 13:37 01-24-00 --------------------------- RENO v. BOSSIER PARISH SCHOOL BD. (98-405) Web-accessible at: http://supct.law.cornell.edu/supct/html/98-405.ZS.html Argued April 26, 1999 -- Decided January 24, 2000* [* Together with No. 98-406, Price et al. v. Bossier Parish School Bd., also on appeal from the same court. ] Opinion author: Scalia =============================================================== Bossier Parish, Louisiana, a jurisdiction covered by sect.5 of the Voting Rights Act of 1965, is thereby prohibited from enacting any change in a "voting qualification[,] prerequisite[,] standard, practice, or procedure" without first obtaining preclearance from either the Attorney General or the District Court. When, following the 1990 census, the Bossier Parish School Board submitted a proposed redistricting plan to the Attorney General, she denied preclearance. The Board then filed this preclearance action in the District Court. Section 5 authorizes preclearance of a proposed voting change that "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." Appellants conceded that the Board's plan did not have a prohibited "effect" under sect.5, since it was not "retrogressive," i.e., did not worsen the position of minority voters, see Beer v. United States, 425 U.S. 130, but claimed that it violated sect.5 because it was enacted for a discriminatory "purpose." The District Court granted preclearance. On appeal, this Court disagreed with the District Court's proposition that all evidence of a dilutive (but nonretrogressive) effect forbidden by sect.2 was irrelevant to whether the Board enacted the plan with a retrogressive purpose forbidden by sect.5. Reno v. Bossier Parish School Bd., 520 U.S. 471, 486-487 (Bossier Parish I). This Court vacated and remanded for further proceedings as to the Board's purpose in adopting its plan, id., at 486, leaving for the District Court the question whether the sect.5 purpose inquiry ever extends beyond the search for retrogressive intent, ibid. On remand, the District Court again granted preclearance. Concluding, inter alia, that there was no evidence of discriminatory but nonretrogressive purpose, the court left open the question whether sect.5 prohibits preclearance of a plan enacted with such a purpose. Held: 1. The Court rejects the Board's contention that these cases are mooted by the fact that the 1992 plan will never again be used because the next scheduled election will occur in 2002, when the Board will have a new plan in place based upon data from the 2000 census. In at least one respect, the 1992 plan will have probable continuing effect: it will serve as the baseline against which appellee's next voting plan will be evaluated for preclearance purposes. Pp. 5-6. 2. In light of sect.5's language and Beer's holding, sect.5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Pp. 7-20. (a) In order to obtain preclearance, a covered jurisdiction must establish that the proposed change "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." The covered jurisdiction bears the burden of persuasion on both points. See, e.g., Bossier Parish I, supra, at 478. In Beer, the Court concluded that, in the context of a sect.5 vote-dilution claim, the phrase "abridging the right to vote on account of race or color" limited the term "effect" to retrogressive effects. 425 U.S., at 141. Appellants' contention that in qualifying the term "purpose," the very same phrase does not impose a limitation to retrogression, but means discrimination more generally, is untenable. See BankAmerica Corp. v. United States, 462 U.S. 122, 129. Richmond v. United States, 422 U.S. 358, 378-379, distinguished. Appellants argue that subjecting both prongs to the same limitation produces a purpose prong with a trivial reach, covering only "incompetent retrogressors." If this were true--and if it were adequate to justify giving the very same words different meanings when qualifying "purpose" and "effect"--there would be instances in which this Court applied such a construction to the innumerable statutes barring conduct with a particular "purpose or effect," yet appellants are unable to cite a single case. Moreover, the purpose prong has value and effect even when it does not cover conduct additional to that of a so-called incompetent retrogressor: the Government need only refute a jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose, and need not counter the jurisdiction's evidence regarding actual retrogressive effect. Although virtually identical language in sect.2(a) and the Fifteenth Amendment has been read to refer not only to retrogression, but to discrimination more generally, giving the language different meaning in sect.5 is faithful to the different context in which in which the term "abridging" is used. Appellants' reading would exacerbate the "substantial" federalism costs that the preclearance procedure already exacts, Lopez v. Monterey County, 525 U.S. 266, 282, perhaps to the extent of raising concerns about sect.5's constitutionality, see Miller v. Johnson, 515 U.S. 900, 926-927. The Court's resolution of this issue renders it unnecessary to address appellants' challenge to the District Court's factual conclusion that there was no evidence of discriminatory but nonretrogressive intent. Pp. 7-16. (b) The Court rejects appellants' contention that, notwithstanding that Bossier Parish I explicitly "le[ft] open for another day" the question whether sect.5 extends to discriminatory but nonretrogressive intent, 520 U.S., at 486, two of this Court's prior decisions have already reached the conclusion that it does. Dictum in Beer, 425 U.S., at 141, and holding of Pleasant Grove v. United States, 479 U.S. 462, distinguished. Pp. 16-20. 7 F. Supp. 2d 29, affirmed. Scalia, J., delivered the opinion of the Court, Part II of which was unanimous, and Parts I, III, and IV of which were joined by Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in part and dissenting in part, in which Stevens, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion.