APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Rehnquist, Stevens, and O'connor, JJ., joined, and in Parts I and II of which Blackmun, J., joined. Marshall, J., post, p. 136, and Blackmun, J., post, p. 148, filed opinions concurring in part and dissenting in part. White, J., dissented.
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.
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.*fn1
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
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,*fn2 covered jurisdictions may enforce changes in their election laws only after obtaining "preclearance" 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
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.*fn3 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.
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.*fn4 The court first decided that the entire election plan was subject to § 5's requirements. It then compared Lockhart'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).
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.*fn5 We therefore hold that the
entire system introduced in the 1973 charter is subject to preclearance.
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.
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,*fn6 but that is essentially irrelevant. The proper comparison is between the new system and the system actually in effect on November 1, 1972,*fn7 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
election for aldermen by wards, despite a state statute requiring at-large elections. ...