City of Lockhart v. United States

*127 Justice Powell

delivered the opinion of the Court.

This case requires us to consider the application of § 5 of the Voting Rights Act to the election plan adopted by appellant City of Lockhart in 1973.

HH

The City of Lockhart is a community of just under 8,000 people in Caldwell County, Texas, 30 miles south of Austin. According to the most recent census figures, almost 47% of the city’s population are Mexican-American. As of 1977, however, fewer than 30% of the city’s registered voters were Mexican-American.

Before 1973, Lockhart was a “general law” city. Under Texas law, general-law cities have only those powers that the State specifically permits them to possess. As authorized by state law, Lockhart was governed by a commission consisting of a mayor and two commissioners, all serving the same 2-year terms. These offices were filled in April of even-numbered years through at-large elections using a “numbered post” system. Under this system, the two commissioner posts were designated by number, and each candidate for commissioner specified the post for which he or she sought election. Thus each race was effectively a separate election for a separate office.1

In 1973, Lockhart adopted a new charter and became a “home rule” city. In contrast to a general-law city, a home-rule city has authority to do whatever is not specifically prohibited by the State. This includes discretion to define the form of city government and to establish the procedures for city elections. As part of its new charter, Lockhart chose to be governed by a city council consisting of a mayor and four *128 councilmen serving staggered 2-year terms. The mayor and two of the councilmen are elected in April of even-numbered years through at-large elections using the numbered-post system. The other two councilmen are similarly elected in odd-numbered years.

Under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c,2 covered jurisdictions may enforce changes in their election laws only after obtaining “pre-clearance” in one of two ways: (i) they may obtain a declaratory judgment in the United States District Court for the District of Columbia that the changes do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a *129 language minority group, or (ii) they may submit the changes to the Attorney General, who then has 60 days in which to object. The Act was extended to the State of Texas in 1975, covering changes in election procedures from those in effect on November 1, 1972. See 40 Fed. Reg. 43746 (1975).

In 1977, four Mexican-Americans, including appellee Alfred Cano, challenged the constitutionality of Lockhart’s election procedures under the 1973 charter. Cano v. Kirksey, No. A-77-CA-133 (WD Tex., dism’d Oct. 8, 1982), appeal pending sub nom. Cano v. Chesser, No. 82-1616 (CA5, filed Nov. 8, 1982). In the course of that suit, the plaintiffs discovered that Lockhart had never obtained approval under § 5 for the changes instituted in 1973. A second suit then was brought to enjoin the city from using the new election procedures pending § 5 preclearance. The United States District Court for the Western District of Texas granted injunctive relief.3 Cano v. Chesser, No. A-79-CA-0032 (Mar. 2, 1979) (three-judge court).

Once future elections were enjoined pending §5 approval, Lockhart sought preclearance. The Attorney General, however, interposed an objection to the election procedures under the 1973 charter to the extent that they incorporate at-large elections, the numbered-post system, and staggered terms for councilmen. Lockhart then filed the present suit for a declaratory judgment in the United States District Court for the District of Columbia. Cano intervened as a defendant. As required by §5, a three-judge court was convened to decide the case.

*130 The District Court, recognizing that the city must prove both the absence of discriminatory effect and discriminatory purpose, bifurcated the trial. Addressing only the first issue, it held, over the dissent of Chief Judge Spottswood Robinson of the United States Court of Appeals for the District of Columbia Circuit, that Lockhart’s election procedures have the effect of discriminating against protected minorities.4 The court first decided that the entire election plan was subject to §5’s requirements. It then compared Lock-hart’s current system to that used before the 1973 charter, except that the court refused to recognize the city’s prior use of numbered posts. This was justified on the ground that the use of numbered posts was not explicitly authorized by Texas law, and thus was illegal for a general-law city. The court concluded that numbered posts and staggered terms each have a discriminatory impact, particularly in view of the history of racial bloc voting in Lockhart.

Chief Judge Robinson, in dissent, agreed with the majority that Lockhart’s city-council election procedures were subject to § 5 preclearance, and that the use of numbered posts and staggered terms tended to curb the ability of minorities to elect minority candidates. But relying on Beer v. United States, 425 U. S. 130 (1976), he concluded that there was no retrogression in minority voting strength.

The city appealed the judgment to this Court, contending that the District Court misconstrued the scope of §5, and that, in any event, there has been no retrogression in minority voting strength. The United States, which defended the suit below, now agrees with Lockhart that the changes have no retrogressive effect on the voting rights of Mexican-Americans. Cano continues to defend the result below. We noted probable jurisdiction. 455 U. S. 987 (1982).

*131 I — I l — l

We consider first the scope of § 5’s coverage in the circumstances of this case. Lockhart concedes that § 5 applies to its electoral changes, and that the addition of two seats to its governing body and the introduction of staggered terms are covered changes. It contends, however, that §5 does not apply to the “continuation” of the two old seats and the continued use of numbered posts. We conclude that there has been a change with respect to all of the council seats and to the use of numbered places.

In moving from a three-member commission to a five-member council, Lockhart has changed the nature of the seats at issue. Council posts one and two are not identical to the old commission posts one and two. For example, they now constitute only 40% of the council, rather than 67% of the commission. Moreover, one cannot view these seats in isolation, for they are an integral part of the council. The possible discriminatory purpose or effect of the new seats, admittedly subject to §5, cannot be determined in isolation from the “pre-existing” elements of the council. Similarly, the numbered-post system is an integral part of the new election plan. The impact of any of the seats cannot be evaluated without considering the fact that they are all filled in elections using numbered posts.5 We therefore hold that the *132 entire system introduced in the 1973 charter is subject to preclearance.

Ill

Having decided that Lockhart’s entire 1973 election plan is subject to § 5, we now determine whether the plan’s changes that have not been precleared by the Attorney General have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.

A

The first step is to identify the appropriate comparison. The District Court compared the new plan to what the old practice would have been without numbered posts. It justified this comparison on the ground that a general-law city such as Lockhart was not entitled under Texas law to use a numbered-post system. The court, distinguishing Perkins v. Matthews, 400 U. S. 379 (1971), reasoned that recognition of the actual practice rather than the legal requirement would reward the city for its past illegality. It preferred instead to draw its comparison in a way that would maximize the reach of § 5.

Texas law is not entirely clear on this point,6 but that is essentially irrelevant. The proper comparison is between the new system and the system actually in effect on November 1, 1972,7 regardless of what state law might have required. This basis of comparison was established in Perkins v. Matthews, supra. There a city conducted the relevant *133 election for aldermen by wards, despite a state statute requiring at-large elections. As the Perkins Court explained:

“In our view, § 5’s reference to the procedure ‘in force or effect on November 1, 19[72],’ must be taken to mean the procedure that would have been followed if the election had been held on that date.” 400 U. S., at 394.

This conclusion was based on the plain reading of the section’s language. It is, moreover, in accord with the Act’s underlying policy. Section 5 was intended to halt actual retrogression in minority voting strength without regard for the legality under state law of the practices already in effect.8

B

We now consider whether the aspects of the new system to which the Attorney General objected, when compared to the practices in use in Lockhart prior to the new charter, have the effect of denying or abridging the right to vote guaranteed by § 5. Our inquiry is guided by the principles of Beer v. United States, 425 U. S. 130 (1976).9

Beer involved the reapportionment of the New Orleans councilmanic districts. Prior to the reapportionment, black citizens had a clear majority of the population and a bare majority of the registered voters in one of the five districts. In a second district, they had just under a majority of the population. Under the new plan, blacks had slightly larger popu *134 lation and voter majorities in the first district, and a bare majority of the population in the second. Although the new plan may have remained discriminatory, it nevertheless was not a regressive change. The Court explained that “[t]he language of §5 clearly provides that it applies only to proposed changes in voting procedures.” Id., at 138. “[T]he purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Id., at 141.10 Since the new plan did not increase the degree of discrimination against blacks, it was entitled to § 5 preclearance.

We apply these principles to the two aspects of the new system that remain at issue in this case: the numbered-post system and staggered terms for councilmen.11 It is recognized that a numbered-post system, in some circumstances, may have the effect of discriminating against minorities in a

*135 city where racial bloc voting predominates. Use of numbered posts may frustrate the use of “single-shot voting,” a technique that permits concentrating support behind a single candidate. Lockhart has used numbered posts, however, consistently since 1917. Effective single-shot voting may be impossible now, but it was equally impossible under the old system. The new system may highlight individual races, but so did the old. As Chief Judge Robinson concluded, “the voting strength of Lockhart’s minorities, whether or not enhanced, [has not been] diminished one whit.” 559 F. Supp. 581, 595 (1981). The District Court erred in finding that the continued use of numbered posts has a retrogressive effect on minority voting strength.

The use of staggered terms also may have a discriminatory effect under some circumstances, since it, too, might reduce the opportunity for single-shot voting or tend to highlight individual races. But the introduction of staggered terms has not diminished the voting strength of Lockhart’s minorities. Under the old system, the voters faced two at-large elections with numbered posts every two years. Now they face two at-large elections with numbered posts every year. The inability to use single-shot voting is identical. The degree of highlighting of individual races is identical. Minorities are in the same position every year that they used to be in every other year. Although there may have been no improvement in their voting strength, there has been no retrogression either.

Cano argues that the increased frequency of elections made necessary by staggered terms has resulted in retrogression. The more frequent elections are said to reduce voter turnout, and this has a disproportionate impact on minority voters. In support of this argument, he cites figures from the April 1975 election. That year, when voter turnout was unusually low, only 5.7% of the voters were Mexican-Americans. In other years since 1973, the percentage of Mexican-American voters has been three to six times as great. These *136 figures, however, are misleading. In the April 1975 election, both council candidates were running unopposed, and neither candidate was Mexican-American. This undoubtedly explains both the lower overall turnout and the lower turnout among Mexican-Americans. For other elections since 1973, the overall turnout and the Mexican-American turnout were consistently higher than they were before the new charter, despite the fact that the population increased only slightly. In 1978, a Mexican-American candidate was elected in Lockhart for the first time in its history, after five years of annual elections. The record, therefore, contradicts Cano’s argument. The District Court erred in finding that the introduction of staggered terms has had a retrogressive effect on minority voting strength.

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Applying the standards of Beer v. United States, we conclude that the election changes introduced by the 1973 Lockhart City Charter will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The District Court’s findings to the contrary were clearly erroneous. We accordingly vacate the District Court’s judgment, and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice White dissents.

This numbered-post system may be contrasted with a system in which all of the candidates for the two commissioner posts run in a single election, and the two receiving the greatest number of votes are elected.

Section 5 provides, in relevant part, as follows:

“[WJhenever a State or political subdivision [such as Lockhart] 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 1,1972, 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, or in contravention of the guarantees set forth in section 4(f)(2) [42 U. S. C. § 1973b(f )(2) (prohibiting discrimination against members of language minority groups)], 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 .... Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. . . . Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of [28 U. S. C. § 2284] and any appeal shall lie to the Supreme Court.”

In granting the injunction, the District Court lacked jurisdiction to pass on the discriminatory purpose or effect of the changes. All it could do was determine (i) whether a change was covered by § 5, (ii) if the change was covered, whether § 5’s approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy was appropriate. See, e. g., United States v. Board of Supervisors of Warren County, 429 U. S. 642, 645-647 (1977) (per curiam). Lockhart did not appeal the District Court’s finding that the 1973 charter included changes that are covered by §5.

In view of its decision on discriminatory effect, it was unnecessary for the District Court to reach the issue of discriminatory purpose.

Lockhart seeks to rely on Beer v. United States, 425 U. S. 130 (1976), but that decision is readily distinguishable on this point. In Beer, we considered the reapportionment of the New Orleans councilmanic districts. The New Orleans City Council was composed of seven members, two elected at large and five elected from districts. New Orleans had reapportioned these districts through a city ordinance. “The ordinance . . . made no reference to the at-large councilmanic seats. Indeed, since those seats had been established ... by the city charter, an ordinance could not have altered them; any change in the charter would have required approval by the city’s voters.” Id., at 138-139. Furthermore, the ordinance did not affect the at-large councilmen in any other way. It did not change their titles. It did not increase or decrease the size of the city council. In *132 short, the ordinance affected only the district councilmen. It was only in these circumstances that “[t]he at-large seats . . . were not subject to review . . . under §5.” Id., at 139.

There does not appear to be any Texas case law on the subject. Lock-hart had used its numbered-post system for over 50 years without challenge, suggesting a presumption of legality under state law.

Since no election was held on November 1, 1972, we consider the system that would have been in effect if there had been an election then. That, presumably, is the system that was used without exception between 1917 and 1973. See Perkins v. Matthews, 400 U. S., at 394-395.

We also believe that the Attorney General and the District Court for the District of Columbia should be free to decide preclearance questions on the essentially factual issues of discriminatory purpose and effect. We doubt that Congress intended to force either into speculation as to state law.

Cano argues on appeal that Congress altered the Beer standard with the recent amendment to § 2 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U. S. C. § 1973, see Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131. The District Court did not pass on this argument, and we decline to review it in the first instance. ' The issue remains open on remand.

Contrary to the suggestion in Justice Marshall’s dissent, post, at 142-143, the Beer Court did not distinguish between ameliorative changes and changes that simply preserved current minority voting strength. The Court explained that the purpose of § 5 was to prohibit only retrogressive changes. 426 U. S., at 141. It then applied this standard to the New Orleans reapportionment, agreeing that an ameliorative change was a fortiori permissible. Ibid. The only suggestion in the several Beer opinions that there might be a distinction between ameliorative and nonameliorative changes was not in the Court’s opinion; rather it was in Justice Marshall’s dissent, id., at 150, n. 6, and he explained why the distinction is “unrealistic,” ibid. Cf. id., at 143 (White, J., dissenting) (“I cannot agree [with the Court] that § 5 . . . reaches only those changes in election procedures that are more burdensome to the complaining minority than preexisting procedures”); see also City of Richmond v. United States, 422 U. S. 358, 388 (1975) (Brennan, J., dissenting) (“[T]he fundamental objective of § 5 [is] the protection of present levels of voting effectiveness for the black population”) (emphasis in original). Justice Marshall’s current dissenting opinion essentially reiterates the position stated forcefully in his Beer dissent — a position rejected by a majority of the Court at that time.

The Attorney General also objected to the use of at-large elections, but the District Court did not hold, and the parties before us do not argue, that the continued existence of at-large elections has a retrogressive effect.