517 U.S.

186
116 S.Ct. 1186
134 L.Ed.2d 347

Fortis MORSE, Kenneth Curtis Bartholomew and Kimberly J.

Enderson, Appellants,
v.
REPUBLICAN PARTY OF VIRGINIA et al.
No. 94-203.

Supreme Court of the United States

Argued Oct. 2, 1995.
Decided March 27, 1996.

Syllabus *
Appellee Republican Party of Virginia (Party) invited all registered
Virginia voters willing to declare their support for the Party's nominees at
the 1994 general election to become delegates to a convention to nominate
the Party's candidate for United States Senator upon payment of a
registration fee. Appellants Bartholomew and Enderson desired, and were
qualified, to become delegates, but were rejected because they refused to
pay the fee; appellant Morse paid the fee with funds advanced by
supporters of the eventual nominee. Alleging, inter alia, that the
imposition of the fee violated 5 and 10 of the Voting Rights Act of
1965, appellants filed a complaint seeking an injunction preventing the
Party from imposing the fee and ordering it to return the fee paid by
Morse. The three-judge District Court convened to consider the 5 and
10 claims granted the Party's motion to dismiss, concluding that the
"general rule" that 5 covers political parties to the extent that they are
empowered to conduct primary elections is inapplicable to the selection of
nominating convention delegates under a regulation promulgated by the
Attorney General of the United States and under this Court's summary
decision in Williams v. Democratic Party of Georgia, 409 U.S. 809, 93
S.Ct. 67, 34 L.Ed.2d 70; and that only the Attorney General has authority
to enforce 10.
Held: The judgment is reversed, and the case is remanded.

853 F.Supp. 212 (W.D.Va.1994), reversed and remanded.

Justice STEVENS, joined by Justice GINSBURG, concluded:

1. The Party's decision to exact the registration fee was subject to 5, which,
among other things, prohibits Virginia and other covered jurisdictions from
enacting or enforcing "any voting qualification or prerequisite . . . different
from that in force . . . on" a specified date unless the change has been
precleared by the Attorney General. Pp. __-__.

(a) The District Court erred in its application of the Attorney General's
regulation, which unambiguously requires 5 preclearance when a political
party makes a change affecting voting if, inter alia, the party is "acting under
authority explicitly or implicitly granted by a covered jurisdiction." Because
Virginia law provides that the nominees of the two major political parties shall
automatically appear on the general election ballot, without the need to declare
their candidacy or to demonstrate their support with a nominating petition, and
authorizes the two parties to determine for themselves how they will select
their nominees, whether by primary, nominating convention, or some other
method, the Party "act[ed] under authority" of Virginia when it picked its
candidate at the convention and certified the nominee for automatic placement
on the general election ballot. Cf. Smith v. Allwright, 321 U.S. 649, 653, n. 6,
660, 663, 64 S.Ct. 757, 759, n. 6, 88 L.Ed. 987. Because the conclusion that the
Party's activities fall directly within the regulation's scope is not contradicted,
but is in fact supported, by this Court's narrow holding in Williams, supra, the
District Court also erred when it based its dismissal of appellants' complaint on
that case. Pp. __-__.

(b) The Act's language and structure compel the conclusion that 5 of its own
force covers changes such as the Party's filing fee when the electoral practice at
issue is a nominating convention. This Court has consistently construed the Act
to require preclearance of any change bearing on the "effectiveness" of a vote
cast in a primary, special, or general election, including changes in the
composition of the electorate that votes for a particular office. See, e.g., Allen v.
State Bd. of Elections, 393 U.S. 544, 570, 89 S.Ct. 817, 834, 22 L.Ed.2d 1. By
limiting the opportunity for voters to participate in the convention, the Party's
filing fee undercuts their influence on the field of candidates whose names will
appear on the ballot, and thus weakens the "effectiveness" of their votes cast in
the general election itself. That 5 covers nonprimary nomination methods is
also supported by Whitley v. Williams, decided with Allen, supra; by the text
and legislative history of 14, which defines the terms "vote" or "voting" to

include "all action necessary to make a vote effective in any . . . election,"

including the selection of persons for "party office"; and by the text of 2,
which bans any racially discriminatory voting qualification or prerequisite if
"the political processes leading to nomination or election . . . are not equally
open to . . . [protected group] members." (Emphasis added.) Pp. __-__.
4

(c) Consideration of the historical background which informed the 89th

Congress when it passed the Actparticularly Terry v. Adams, 345 U.S. 461,
73 S.Ct. 809, 97 L.Ed. 1152, and the other "White Primary Cases," in which
the Court applied the Fifteenth Amendment to strike down a succession of
measures by Texas authorities to exclude minority voters from their nomination
processesconfirms the conclusion that 5 applies here. None of the reasons
offered to support appellees' contention that the White Primary Cases have no
bearing on the Act's proper interpretation(1) that the Party's convention did
not operate in a racially discriminatory manner; (2) that, although the Act was
meant to enforce the Fifteenth Amendment, the 89th Congress did not intend to
legislate to that Amendment's "outer limit"; and (3) that present-day Virginia is
not a one-party Commonwealth, unlike post-Reconstruction Texasis
persuasive. Pp. __-__.

(d) None of the dissents' arguments for rejecting the foregoing construction of
5-that a political party is not a "State or political subdivision" within 5's
literal meaning because it is not a governmental unit; that the Court should not
defer to the Attorney General's regulation when construing 5's coverage; that
a major political party is not a "state actor" under the Court's decisions unless
its nominees are virtually certain to win the general election; and that the
construction amounts to adoption of a "blanket rule" that all political parties
must preclear all of their internal proceduresis convincing. Pp. __-__.

(e) Appellees' practical objections to the foregoing construction of 5(1) that

it will create an administrative nightmare for political parties and the Justice
Department, and (2) that it threatens to abridge First Amendment associational
rightsare rejected. Pp. __-__.

2. Section 10 of the Actwhich does not expressly mention private actions

when it authorizes the Attorney General to file suit against racially motivated
poll taxesdoes not preclude appellants from challenging the Party's
registration fee as a prohibited poll tax. Evaluation of congressional action must
take into account its contemporary legal context. See, e.g., Cannon v.
University of Chicago, 441 U.S. 677, 698-699, 99 S.Ct. 1946, 1958-1959, 60
L.Ed.2d 560. Because the Act was passed against a "backdrop" of decisions in
which implied causes of action were regularly found, see id., at 698, and nn. 22-

23, 99 S.Ct., at 1958, and nn. 22-23, private parties may sue to enforce 10,
just as they ma y enforce 5, see Allen, supra, at 556, 557, n. 23, 89 S.Ct., at
826, 827, n. 23, or 2, see, e.g., Chisom v. Roemer, 501 U.S. 380, 111 S.Ct.
2354, 115 L.Ed.2d 348. Appellees' argument to the contrary was rejected in
Allen, supra, at 556, n. 20, 89 S.Ct., at 827, n. 20, and is also refuted by 3
and 14(e) of the Act, both of which recognize the existence of a private 10
right of action. Appellees' argument that a delegate registration fee is not a poll
tax addresses the merits and should be considered by the District Court in the
first instance. Pp. __-__.
8

Justice BREYER, joined by Justice O'CONNOR and Justice SOUTER,

concluded:

1. In light of the legislative history demonstrating that, in 1965, Congress was

well aware of the White Primary Cases, the failure of case-by-case enforcement
of the Fifteenth Amendment, and Mississippi's then-recent efforts to use an
"all-white" convention process to help nominate a Democratic candidate for
President, and that the Act's "party office" provision was adopted to cover the
latter type of situation, the Act cannot be interpreted to contain a loophole
excluding all political party activity, but must be read to apply to certain
convention-based practices and procedures with respect to voting. That is as far
as the Court need go to answer the statutory question presented by this case.
Indeed, it is as far as the Court should go, given the difficult First Amendment
questions about the extent to which the Federal Government, through
preclearance procedures, can regulate the workings of a political party
convention, and about the limits imposed by the state action doctrine. Such
questions are properly left for a case that squarely presents them. The fee
imposed here, however, is within the scope of 5, and well outside the area of
greatest associational concern. Pp. __-__.

10

2. Congress intended to establish a private right of action to enforce 10, no

less than it did to enforce 2 and 5. See Allen v. State Bd. of Elections, 393
U.S. 544, 556-557, 89 S.Ct. 817, 826-827, 22 L.Ed.2d 1. Justice BREYER
expressed no view as to the merits of the underlying 10 claim. Pp. __-__.

11

STEVENS, J., announced the judgment of the Court and delivered an opinion,
in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in
the judgment, in which O'CONNOR and SOUTER, JJ., joined. SCALIA, J.,
filed a dissenting opinion, in which THOMAS, J., joined. KENNEDY, J., filed
a dissenting opinion, in which REHNQUIST, C.J., joined. THOMAS, J., filed a
dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, and
in which KENNEDY, J., joined as to Part II.

12

On Appeal from the United States District Court for the Western District Of
Virginia.

13

Pamela Susan Karlan, Cambridge, MA, for appellants.

14

Paul Bender, Washington, DC, for U.S., as amicus curiae, by special leave of
the Court.

15

E. Duncan Getchell, Jr., Richmond, VA, for appellees.

16

Justice STEVENS announced the judgment of the Court and delivered an

opinion, in which Justice GINSBURG joins.

17

In 1994, all registered voters in Virginia who were willing to declare their intent
to support the Republican Party's nominees for public office at the next election
could participate in the nomination of the Party's candidate for the office of
United States Senator if they paid either a $35 or $45 registration fee.
Appellants contend that the imposition of that fee as a condition precedent to
participation in the candidate selection process was a poll tax prohibited by the
Voting Rights Act of 1965. The questions we must decide are whether 5 of
the Act required preclearance of the Party's decision to exact the fee and
whether appellants were permitted to challenge it as a poll tax prohibited by
10.

18

* On December 16, 1993, the Republican Party of Virginia (Party) issued a call
for a state convention to be held on June 3, 1994, to nominate the Republican
candidate for United States Senator. The call invited all registered voters in
Virginia to participate in local mass meetings, canvasses or conventions to be
conducted by officials of the Party. Any voter could be certified as a delegate to
the state convention by a local political committee upon payment of a
registration fee of $35 or $45 depending on the date of certification. Over
14,000 voters paid the fee and took part in the convention.

19

In response to the call, appellants Bartholomew, Enderson, and Morse sought to

become delegates to the convention. As a registered voter in Virginia willing to
declare his or her intent to support the Party's nominee, each was eligible to
participate upon payment of the registration fee. Bartholomew and Enderson
refused to pay the fee and did not become delegates; Morse paid the fee with
funds advanced by supporters of the eventual nominee.

20

On May 2, 1994, appellants filed a complaint in the United States District Court

20

On May 2, 1994, appellants filed a complaint in the United States District Court
for the Western District of Virginia alleging that the imposition of the
registration fee violated 5 and 10 of the Voting Rights Act, 79 Stat. 439,
442, as amended, 42 U.S.C. 1973c1 and 1973h (1988 ed.), as well as the
Equal Protection Clause of the Fourteenth Amendment2 and the Twenty-fourth
Amendment3 to the Constitution. They sought an injunction preventing the
Party from imposing the fee and ordering it to return the fee paid by Morse. As
5 and 10 require, a three-judge District Court was convened to consider the
statutory claims. See Morse v. Oliver North for U.S. Senate Comm., Inc., 853
F.Supp. 212 (W.D.Va.1994). That court remanded the two constitutional claims
to a single-judge District Court,4 and, after expedited briefing and argument,
granted the Party's motion to dismiss the 5 and 10 claims.

21

After noting "a general rule" that political parties are subject to 5 to the extent
that they are empowered to conduct primary elections, the Court gave two
reasons for concluding that the rule did not apply to the selection of delegates to
a state nominating convention. First, it read a regulation promulgated by the
Attorney General as disavowing 5 coverage of political party activities other
than the conduct of primary elections. Second, it relied on our summary
affirmance of the District Court's holding in Williams v. Democratic Party of
Georgia, Civ. Action No. 16286 (N.D.Ga., Apr. 6, 1972), that 5 does not
cover a party's decision to change its method of selecting delegates to a national
convention. See 409 U.S. 809, 93 S.Ct. 67, 34 L.Ed.2d 70 (1972). Its dismissal
of the 10 claim rested on its view that only the Attorney General has authority
to enforce that section of the Act. 853 F.Supp., at 215-217.

22

We noted probable jurisdiction, 513 U.S. ----, 115 S.Ct. 932, 130 L.Ed.2d 878
(1995), and now reverse.

II
23

In the Voting Rights Act of 1965, Congress enacted a complex scheme of

remedies for racial discrimination in voting that were to be applied in areas
where such discrimination had been most flagrant. Section 4 of the Act sets
forth the formula for identifying the jurisdictions in which such discrimination
had occurred, see South Carolina v. Katzenbach, 383 U.S. 301, 317-318, 86
S.Ct. 803, 813, 15 L.Ed.2d 769 (1966), and 5 prescribes the most stringent of
those remedies. It prohibits the enactment or enforcement by any covered
jurisdiction of voting qualifications or procedures that differ from those in
effect on November 1, 1964, or two later dates, unless they have been
precleared by the Attorney General or approved by the United States District
Court for the District of Columbia. See Allen v. State Bd. of Elections, 393 U.S.
544, 548-550, 89 S.Ct. 817, 822-823, 22 L.Ed.2d 1 (1969).5 Virginia is one of

the seven States to which the 4 coverage formula was found applicable on
August 7, 1965.6 The entire Commonwealth has been subject to the
preclearance obligation of 5 ever since.
24

It is undisputed that the Republican Party's practice of charging a registration

fee as a prerequisite to participation in the process of selecting a candidate for
United States Senator was not in effect on November 1, 1964. It is also
undisputed that if the candidate had been selected in a primary election, the
Party could not have enforced a voting qualification or procedure different from
those in effect on November 1, 1964, without first preclearing it under 5.
Finally, we understand the Party to agree that if the registration fee had been
mandated by state law, or by a state election official, preclearance would have
been required.

25

What is in dispute is whether the coverage of 5 encompasses the Party's

voting qualifications and procedures when its nominees are chosen at a
convention. In answering that question, we first note that the District Court's
decision is not supported either by the Attorney General's regulation or by the
narrow holding in the Williams case. We then explain why coverage is
mandated by our consistent construction of the text and history of the Act.
Finally, we discuss the 10 private cause of action issue.

III
26

The Party does not question the validity of the Attorney General's regulation.
That regulation unambiguously provides that when a political party makes a
change affecting voting, 5 requires preclearance if two conditions are
satisfied: the change must relate to "a public electoral function of the party" and
the party must be "acting under authority explicitly or implicitly granted by a
covered jurisdiction."7 The Party does not deny that the delegate fee is a change
that relates to a public electoral function of the Party. It argues, instead, that the
regulation did not apply when it selected its nominee for United States Senator
at a convention because it was not "acting under authority" granted by Virginia.
We disagree. The District Court erred in its application of the regulation,
because the Party exercised delegated state power when it certified its nominee
for automatic placement on Virginia's general election ballot.

27

Virginia law creates two separate tracks for access to the ballot, depending on
the affiliation of the candidate. An independent candidate for a statewide office
must comply with several requirements. The candidate must file a declaration of
candidacy with the State Board of Elections. He or she must also file a petition
signed by a predetermined number of qualified voters. For elections to the

United States Senate, that number is equal to one-half of one percent of the
registered voters in the Commonwealth, with at least 200 signatures from each
of the 11 congressional districts. Va.Code Ann. 24.2-506 (1993). In 1994, the
required number of signatures was 14,871.8
28

By contrast, the election code provides that the nominees of the two major
political parties9 shall automatically appear on the general election ballot,
without the need to declare their candidacy or to demonstrate their support with
a nominating petition. 24.2-511. Party nominees are listed sequentially on the
ballot before independent candidates, all of whom are grouped toget her in a
separate row or column or spaced apart from the former.10 24.2-613, 24.2640. Virginia law authorizes the two parties to determine for themselves how
they will select their nomineesby primary, by nominating convention, or by
some other method. 24.2-509(A).11 The Republican Party has taken
advantage of these options in past elections. Its nominee has sometimes been
selected by the Party's State Central Committee, sometimes by statewide
convention, and sometimes by primary election. Whatever method is chosen,
state law requires the Commonwealth to place the name of the nominee on the
general election ballot.12

29

In this dual regime, the parties "ac[t] under authority" of Virginia when they
decide who will appear on the general election ballot. 28 CFR 51.7 (1995). It
is uncontested that Virginia has sole authority to set the qualifications for ballot
access. Pursuant to that authority, the Commonwealth has prescribed stringent
criteria for access with which nearly all independent candidates and political
organizations must comply. But it reserves two places on its ballotindeed, the
top two positions13 for the major parties to fill with their nom inees, however
chosen. Those parties are effectively granted the power to enact their own
qualifications for placement of candidates on the ballot, which the
Commonwealth ratifies by adopting their nominees. By holding conventions,
for example, the Party does not need to assemble thousands of signatures on a
petition for its nominee. In some years, as few as 550 nominators have selected
the Party's candidate for United States Senate.14 Even in 1994, when the Party
convention had its largest attendance to date, fewer nominators were present
than would have been necessary to meet the petition requirement.15 In any
event, state law permits the Party to allow as many or as few delegates as it sees
fit to choose the Party nominee.

30

The Party is thus delegated the power to determine part of the field of
candidates from which the voters must choose. Correspondingly, when Virginia
incorporates the Party's selection, it "endorses, adopts and enforces" the
delegate qualifications set by the Party for the right to choose that nominee.

Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944).
The major parties have no inherent right to decide who may appear on the
ballot. That is a privilege conferred by Virginia law, not natural law. If the
Party chooses to avail itself of this delegated power over the electoral process,
it necessarily becomes subject to the regulation.16
31

In concluding that the regulation applies to the Party, we are guided by the
reasoning of Smith v. Allwright, decided more than half a century ago. There,
Texas gave automatic ballot access to the nominee of any party that polled a
certain number of votes at the preceding general election, and required
independent candidates to file nominating petitions. Id., at 653, n. 6, 663, 64
S.Ct., at 759, n. 6, 764-765. We explained that "recognition of the place of the
primary in the electoral scheme," rather than the degree of state control over it,
made clear that "state delegation to a party of the power to fix the qualifications
of primary elections is delegation of a state function that may make the party's
action the action of the State." Id., at 660, 64 S.Ct., at 763. The only difference
here is that Virginia has not required its political parties to conduct primary
elections to nominate their candidates. But the right to choose the method of
nomination makes the delegation of authority in this case more expansive, not
less, for the Party is granted even greater power over the selection of its
nominees. See generally L. Tribe, American Constitutional Law 13-24, p.
1121, and n. 3 (2d ed.1988); Rotunda, Constitutional and Statutory Restrictions
on Political Parties in the Wake of Cousins v. Wigoda, 53 Texas L.Rev. 935,
953-954 (1975); Developments in the LawElections, 88 Harv. L.Rev. 1111,
1159-1163 (1975). By the logic of Smith, therefore, the Party acted under
authority of the Commonwealth.17

32

It is true that the example set forth in the Attorney General's regulation
describes changes in the conduct of primary elections. That example, however,
does not purport to define the outer limits of the coverage of 5. Moreover,
both in its brief amicus curiae supporting appellants in this case and in its prior
implementation of the regulation, the Department of Justice has interpreted it as
applying to changes affecting voting at a party convention.18 We are satisfied
that the Department's interpretation of its own regulation is correct. See Stinson
v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598
(1993); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct.
1215, 1217, 89 L.Ed. 1700 (1945). Accordingly, we conclude that the
regulation required preclearance of the Party's delegate filing fee.

33

The decision in Williams v. Democratic Party of Georgia, upon which the

District Court relied in dismissing this complaint, is not to the contrary. The fact
that Virginia statutes grant the nominee of the Party a position on the general

election ballot graphically distinguishes the two cases. Williams did not
concern the selection of nominees for state elective o ffice, but rather a political
party's compliance with a rule promulgated by the Democratic National Party
governing the selection of delegates to its national convention. According to the
District Court's interpretation of Georgia law, the State exercised no control
over, and played no part in, the state Party's selection of delegates to the
Democratic National Convention.19 Because the Commonwealth delegated no
authority to the Party to choose the delegates, the Party did not act under the
authority, implicit or explicit, of the Commonwealth.
34

If anything, the logic of Williams supports application of the preclearance

requirement. The District Court stated that it was "convinced that voting rights
connected with the delegate election process are the type of rights Congress
intended to safeguard" by passage of the Act. Civ. Action No. 16286, at 4. It
declined to require the party to preclear changes in its nominating methods only
because there were no administrative procedures for submission of such
changes at the time of the decision. Id., at 5. Since then, however, the Attorney
General has clarified that "an appropriate official of the political party" may
submit party rules affecting voting for preclearance, 28 CFR 51.23(b) (1993),
thereby eliminating this one practical obstacle. Other lower courts have
subsequently required preclearance of internal party rules, even when those
rules do not relate to the conduct of primary elections.20 Indeed, if the rationale
of Williams were still valid, 5 would not cover party primaries either, for the
party (by hypothesis) would likewise have no means of preclearing changes.
But it is firmly establishedand the Party does not dispute that changes
affecting primaries carried out by political parties must be precleared.21

35

The District Court was therefore incorrect to base its decision on either the
Attorney General's regulation or on our summary a ffirmance in Williams. The
Party's activities fall directly within the scope of the regulation. We next
conclude, based on the language and structure of the Act, and the historical
background which informed the Congress that enacted it, that 5 of its own
force covers changes in electoral practices such as the Party's imposition of a
filing fee for delegates to its convention.

IV
36

Section 5 of the Act requires preclearance of changes in "any voting

qualification or prerequisite to voting, or standard, practice, or procedure with
respect to voting." Section 14 defines the terms "vote" or "voting" to 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." 42 U.S.C. 1973l (c)
(1) (1988 ed.).
37

Although a narrow reading of the text of the Voting Rights Act might have
confined the coverage of 5 to changes in election practices that limit
individual voters' access to the ballot in jurisdictions having authority to
register voters, see United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110,
140-150, 98 S.Ct. 965, 983-988, 55 L.Ed.2d 148 (1978) (STEVENS, J.,
dissenting); Holder v. Hall, 512 U.S. ----, ----, 114 S.Ct. 2581, 2591-2592,
2602-2603, 129 L.Ed.2d 687 (1994) (THOMAS, J., concurring in judgment),
the Court has squarely rejected that construction. Shortly after the statute was
passed, the Court thoroughly reviewed its legislative history and found that
Congress intended 5 to have "the broadest possible scope" reaching "any state
enactment which altered the election law of a covered State in even a minor
way." Allen v. State Bd. of Elections, 393 U.S., at 566-567, 89 S.Ct., at 832.
Similarly, in Sheffield, the Court concluded that "the language of the Act does
not require such a crippling interpretation, but rather is susceptible of a reading
that will fully implement the congressional objectives." 435 U.S., at 117, 98
S.Ct., at 972. We expressly held 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, not only to counties or to
whatever units of state government perform the function of registering voters."
Id., at 118, 98 S.Ct., at 972. More recently we noted that 5 is "expansive
within its sphere of operation" and "comprehends all changes to rules
governing voting." Presley v. Etowah County Comm'n, 502 U.S. 491, 501, 112
S.Ct. 820, 828, 117 L.Ed.2d 51 (1992).

38

We have consistently construed the Act to require preclearance of any change in

procedures or practices that may bear on the "effectiveness" of a vote cast in
"any primary, special, or general election." 42 U.S.C. 1973 l (c)(1). Rules
concerning candidacy requirements and qualifications, we have held, fall into
this category because of their potential to "undermine the effectiveness of
voters who wish to elect [particular] candidates." Allen, 393 U.S., at 570, 89
S.Ct., at 834; see also Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 40,
99 S.Ct. 368, 373, 58 L.Ed.2d 269 (1978). Changes in the composition of the
electorate that votes for a particular office that is, situations that raise the
specter of vote dilutionalso belong to this class because they could "nullify
[voters'] ability to elect the candidate of their choice just as would prohibiting
some of them from voting." 393 U.S., at 569, 89 S.Ct., at 834. This nexus

between the changed practice and its impact on voting in the general election
has been a recurring theme in our cases interpreting the Act. See Chisom v.
Roemer, 50 1 U.S. 380, 397, 111 S.Ct. 2354, 2365, 115 L.Ed.2d 348 (1991)
("Any abridgment of the opportunity of members of a protected class to
participate in the political process inevitably impairs their ability to influence
the outcome of an election"). In its reenactments and extensions of the Act,
moreover, Congress has endorsed these broad constructions of 5. See, e.g.,
S.Rep. No. 97-417, pp. 6-7, and n. 8 (1982).
39

A filing fee for party delegates operates in precisely the same fashion as these
covered practices. By limiting the opportunity for voters to participate in the
Party's convention, the fee undercuts their influence on the field of candidates
whose names will appear on the ballot, and thus weakens the "effectiveness" of
their votes cast in the general election itself. As an elementary fact about our
Nation's political system, the significance of the nominating convention to the
outcome in the general election was recognized as long ago as Justice Pitney's
concurrence in Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed.
913 (1921). Joined by Justices Brandeis and Clarke, he wrote: "As a practical
matter, the ultimate choice of the mass of voters is predetermined when the
nominations [by the major political parties] have been made." Id., at 286, 41
S.Ct., at 484 (opinion concurring in part). See also United States v. Classic, 313
U.S. 299, 319, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1941) (endorsing the
Newberry concurrence). Just like a primary, a convention narrows the field of
candidates from a potentially unwieldy number to the serious few who have a
realistic chance to win the election. We have held, in fact, that the State's
compelling interest in winnowing down the candidates justifies substantial
restrictions on access to the ballot. American Party of Texas v. White, 415 U.S.
767, 782, and n. 14, 94 S.Ct. 1296, 1307, and n. 14, 39 L.Ed.2d 744 (1974).
Virginia, no doubt, would justify its own ballot access rulesincluding those
for the major partieson just this basis.22

40

We have previously recognized that 5 extends to changes affecting

nomination processes other than the primary. In Whitley v. Williams, one of the
companion cases decided with Allen, this Court affirmed 5 coverage of a
scheme that placed new burdens on voters who wished to nominate
independent candidates by petition. The Court was unconcerned that the
changes did not directly relate to the conduct of a primary, because they had an
effect on the general election. See Allen, 393 U.S., at 570, 89 S.Ct., at 834. One
of those changes was a requirement that each nominator sign the petition
personally and state his or her polling precinct and county. See id., at 551, 89
S.Ct., at 824. Like the filing fee in this case, that condition made it more
difficult for voters to participate in the nomination process, and therefore

properly fell within 5's scope. A fee of $45 to cast a vote for the Party
nominee is, if anything, a more onerous burden than a mere obligation to
include certain public information about oneself next to one's name on a
nominating petition. In dissent, Justice Harlan agreed that "the nominating
petition is the functional equivalent of the political primary." Id., at 592, 89
S.Ct., at 845 (opinion concurring in part and dissenting in part).
41

Delegate qualifications are in fact more closely tied to the voting process than
practices that may cause vote dilution, whose coverage under 5 we have
repeatedly upheld. Virginia, like most States, has effectively divided its election
into two stages, the first consisting of the selection of party candidates and the
second being the general election itself. See United States v. Classic, 313 U.S.,
at 316, 61 S.Ct., at 1038. Exclusion from the earlier stage, as two appellants in
this case experienced, does not merely curtail their voting power, but abridges
their right to vote itself. To the excluded voter who cannot cast a vote for his or
her candidate, it is all the same whether the party conducts its nomination by a
primary or by a convention open to all party members except those kept out by
the filing fee. Each is an "integral part of the election machinery." Id., at 318,
61 S.Ct., at 1039.

42

The reference to "party office" in 14, which defines the terms "vote" and
"voting" as they appear throughout the Act, reinforces this construction of 5.
Section 14 specifically recognizes that the selection of persons for "party
office" is one type of action that may determine the effectiveness of a vote in
the general election. Delegates to a party convention are party officers. See
H.R.Rep. No. 439, 89th Cong., 1st Sess., 32 (1965) ("Thus, for example, an
election of delegates to a State party convention would be covered by the act").
The phrase "votes cast with respect to candidates for public or party office" in
14 is broad enough to encompass a variety of methods of voting beyond a
formal election.23 Cf. Classic, 313 U.S., at 318, 61 S.Ct., at 1039. The Party
itself recognizes this point, for both in its brief to this Court and in its Plan of
Organization, it repeatedly characterizes its own method of selecting these
delegates as an "election." 24

43

The legislative history of 14 supports this interpretation. Representative

Bingham proposed addition of the term "party office" to the language of the
section for the express purpose of extending coverage of the Act to the
nominating activities of political parties. See Hearings on H.R. 6400 before
Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st
Sess., 456-457 (1965) (proposing coverage of "political party meetings,
councils, conventions, and referendums which lead to endorsement or selection
of candidates who will run in primary or general elections"). Congressional

concern that the Act reach the selection of party delegates was not merely
speculative. On the floor of the House, Representative Bingham expressed the
importance of preventing a reprise of the fiasco of the previous year, 1964,
"when the regular Democratic delegation from Mississippi to the Democratic
National Convention was chosen through a series of Party caucuses and
conventions from which Negroes were excluded." 111 Cong. Rec. 16273
(1965); see also Hearings, supra, at 456 ("The events of 1964 demonstrate the
need" to expand 14). As he later explained, the sol ution that was reached to
this problem was "to add to the definition of the word 'vote' in section 14(c)(1)."
111 Cong Rec. 16273. The Party's delegates to its 1994 convention were chosen
through precisely the same methods Representative Bingham described: mass
meetings, conventions, and canvasses. Exempting the Party from the scope of
14 would thus defeat the purpose for which the House and eventually Congress
as a whole adopted Representative Bingham's amendment.
44

The text of 2 also makes apparent the Act's intended coverage of nonprimary
nomination methods. Section 2, which bans any "voting qualification or
prerequisite" that discriminates on account of race or color, considers a
violation to have occurred if "the political processes leading to nomination or
election in the State or political subdivision are not equally open to
participation by members of [groups protected by the Act] in that its members
have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice." 42 U.S.C.
1973(b) (1988 ed.) (emphasis added). Under the broad sweep of this language,
exclusion from a nominating convention would qualify as a violation. Section 2
"adopts the functional view of 'political process' " and applies to "any phase of
the electoral process." S.Rep. 97-417, p. 30, and n. 120 (1982).

45

If such practices and procedures fall within the scope of 2, they must also be
subject to 5. In recent cases, some Members of this Court have questioned
whether 2 is as broad as 5, see Chisom v. Roemer, 501 U.S., at 416-417, 111
S.Ct., at 2375-2376 (SCALIA, J., dissenting); Holder v. Hall, 512 U.S., at ---- ----, 114 S.Ct., at 2586-2588 (KENNEDY, J.); id., at ---- - ----, 114 S.Ct., at
2610-2611 (THOMAS, J., concurring in judgment), but there has never been
any doubt about the conversethat changes in practices within covered
jurisdictions that would be potentially objectionable under 2 are also covered
under 5. The purpose of preclearance is to prevent all attempts to implement
discriminatory voting practices that change the status quo. If 5 were narrower
than 2, then a covered jurisdiction would not need to preclear changes in
voting practices known to be illegal. "It is unlikely that Congress intended such
an anomalous result." Chisom, 501 U.S., at 402, 111 S.Ct., at 2367. 25

46

A fair reading of the text of 5 unquestionably supports the conclusion that by

imposing its filing fee the Party sought to administer a "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, 1968." 42 U.S.C. 1973c
(1988 ed.).

V
47

Consideration of the history that led to passage of the Act confirms our
construction of 5. The preamble to the statute expressly identifies the
"fifteenth amendment" as the constitutional provision the Act was designed to
implement.26 Our cases dealing with the applicability of that amendment to the
selection of party candidates in States that engaged in the sort of voting
discrimination that 5 was designed to remedy are therefore directly relevant.
See McCain v. Lybrand, 465 U.S. 236, 246, 104 S.Ct. 1037, 1044, 79 L.Ed.2d
271 (1984) (interpreting Act "in light of its prophylactic purpose and the
historical experience which it reflects"); Dougherty County Bd. of Ed. v. White,
439 U.S., at 37, 99 S.Ct., at 371 (seeking "guidance from the history and
purpose of the Act"). In a series of decisions known as the White Primary
Cases, this Court applied the Fifteenth and Fourteenth Amendments to strike
down a succession of measures by authorities in Texas to exclude minority
voters from their nomination processes. These cases demonstrate that electoral
practices implemented by political parties have the potential to "den[y] or
abridg[e] the right to vote on account of race or color," which 5 prohibits. 42
U.S.C. 1973c (1988 ed.).

48

Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), involved
the validity of a Texas statute enacted in 1923 that flatly provided " 'in no event
shall a negro be eligible to participate in a Democratic party primary election
held in the State of Texas,' " id., at 540, 47 S.Ct., at 446. It took only a
paragraph for Justice Holmes to conclude that it was "unnecessary to consider
the Fifteenth Amendment, because it seems to us hard to imagine a more direct
and obvious infringement of the Fourteenth." Id., at 540-541, 47 S.Ct., at 446.
Promptly after the announcement of that decision, the Texas Legislature
responded to what it regarded as an emergency by replacing the invalid
provision with a substitute that authorized the executive committee of every
political party to determine "in its own way" who shall be "qualified to vote or
otherwise participate in such political party." Nixon v. Condon, 286 U.S. 73, 82,
52 S.Ct. 484, 485, 76 L.Ed. 984 (1932). The State Executive Committee of the
Democratic Party adopted a rule that only "white democrats" could participate
in the party's primary elections. Pursuant to that rule, Mr. Nixon was again
refused a primary ballot and again persuaded this Court that the authors of the

discriminatory rule should be "classified as representatives of the State to such

an extent and in such a sense that the great restraints of the Constitution set
limits to their action." Id., at 89, 52 S.Ct., at 487.
49

The decision in Nixon v. Condon relied on the fact that a state statute authorized
the Party's Executive Committee to determine the qualifications of voters.
Thereafter the Party implemented the same discriminatory policy without
statutory authorization by adopting a resolution at a state convention restricting
party membership to "white persons." When it first confronted the issue, the
Court held that implementation of that rule was not state action. Grovey v.
Townsend, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292 (1935). A few years later,
however, Grovey was overruled and the Court decided that the resolution
adopted by the party's state convention constituted state action violative of the
Fiftee nth Amendment even though it was not expressly authorized by statute.
Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). We wrote:

50

"The United States is a constitutional democracy. Its organic law grants to all
citizens a right to participate in the choice of elected officials without restriction
by any State because of race. This grant to the people of the opportunity for
choice is not to be nullified by a State through casting its electoral process in a
form which permits a private organization to practice racial discrimination in
the election. Constitutional rights would be of little value if they could be thus
indirectly denied. Lane v. Wilson, 307 U.S. 268, 275 [59 S.Ct. 872, 876, 83
L.Ed. 1281] [ (1939) ]." Id., at 664, 64 S.Ct., at 765.

51

The same policy of excluding all nonwhite voters from the electoral process
was thereafter implemented in certain Texas counties by a private organization
known as the Jaybird Democratic Association. It conducted a so-called
"Jaybird primary" at which white voters selected candidates who thereafter ran
in and nearly always won the Democratic Party's primary and the general
election. Although the Jaybirds had no official status, received no state funds,
and conducted a purely private election, the Court readily concluded that this
voluntary association's exclusion of black voters from its primaries on racial
grounds was prohibited by the Fifteenth Amendment. Terry v. Adams, 345 U.S.
461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). Citing our earlier cases, Justice Clark
tersely noted that an "old pattern in new guise is revealed by the record." Id., at
480, 73 S.Ct., at 818 (concurring opinion).

52

Congress passed the Voting Rights Act of 1964 because it concluded that caseby-case enforcement of the Fifteenth Amendment, as exemplified by the history
of the white primary in Texas, had proved ineffective to stop discriminatory
voting practices in certain areas of the country on account of the intransigence

of officials who "resorted to the extraordinary stratagem of contriving new rules

of various kinds for the sole purpose of perpetuating voting discrimination in
the face of adverse federal court decrees." South Carolina v. Katzenbach, 383
U.S., at 335, 86 S.Ct., at 822 (citing H.R.Rep. No. 439, at 10-11; S.Rep. No.
162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965)). The preclearance system of
5 was designed to end this evasion once and for all. By prohibiting officials in
covered jurisdictions from implementing any change in voting practices
without prior approval from the District Court for the District of Columbia or
the Attorney General, it sought to "shift the advantage of time and inertia from
the perpetrators of the evil to its victims." South Carolina v. Katzenbach, 383
U.S., at 328, 86 S.Ct., at 818. 27
53

The distinction between a primary and a nominating convention is just another

variation in electoral practices that 5 was intended to cover. The imposition of
a $45 fee on the privilege of participating in the selection of the Party's
nominee for the United States Senate is equally a practice or procedure relating
to voting whether the selection is made by primary election or by a
"convention" in which every voter willing to pay the fee is eligible to cast a
vote. A primary election would not cease to be a practice relating to voting if
the Party imposed such a high fee that only 14,000 voters cast ballots; nor
should a "convention" performing the same electoral function as a primary
avoid coverage because fewer voters participate in the process than normally
vote in a primary. As was true in Sheffield, "the District Court's interpretation
of the Act . . . makes 5 coverage depend upon a factor completely irrelevant
to the Act's purposes, and thereby permits precisely the kind of circumvention
of congressional policy that 5 was designed to prevent." 435 U.S., at 117, 98
S.Ct., at 972. It would undermine the Act to permit " '[s]uch a variation in the
result from so slight a change in form.' " Terry v. Adams, 345 U.S., at 465, n. 1,
73 S.Ct., at 811, n. 1 (quoting Smith v. Allwright, 321 U.S., at 661, 64 S.Ct., at
764).

54

Section 5 coverage of nominating conventions follows directly from our

decision in Terry. Although called a "primary," the Jaybird election was the
equivalent of the Party's nominating convention, for it did not involve the
State's electoral apparatus in even the slightest wayneither to supply election
officials, nor ballots, nor polling places. See 345 U.S., at 471, 73 S.Ct., at 814
(opinion of Frankfurter, J.). In fact, the Jaybirds went far beyond the Party in
immunizing their nomination process from the State's control. The Jaybird
nominee did not receive any form of automatic ballot access. He filed
individually as a candidate in the Democratic primary, paid the filing fee, and
complied with all requirements to which other candidates were subject. Id., at
486-487, 73 S.Ct., at 821-822 (Minton, J., dissenting). No mention of the

nominee's Jaybird affiliation was ever made, either on the primary or on the
general election ballot. Those elections, moreover, were open to any candidate
who was able to meet the filing requirements, and to black as well as white
voters. If the Jaybirds' nominating process violated the Fifteenth Amendment
because black voters were not permitted to participate, despite the entirely
voluntary nature of the Jaybird association, then 5which requires
preclearance of all practices with the potential to discriminatemust cover the
Party's exclusion of voters from its convention.28
55

Appellees nevertheless assert that Terry, like the other White Primary Cases,
has no bearing on the proper interpretation of the Voting Rights Act. They offer
three reasons for that contention: first, that their convention did not operate in a
racially discriminatory manner, Brief for Appellees 37; second, that the 89th
Congress did not intend to legislate to the "outer limit" of the Fifteenth
Amendment, ibid.; and third, that present-day Virginia is not a one-party
Commonwealth, unlike Texas after Reconstruction, id., at 36. None of these
reasons is persuasive.

56

First, while it is true that the case before us today does not involve any charge
of racial discrimination in voting, the decision whether discrimination has
occurred or was intended to occur, as we have explained on many occasions, is
for the Attorney General or the District Court for the District of Columbia to
make in the first instance. NAACP v. Hampton County Election Comm'n, 470
U.S. 166, 181, 105 S.Ct. 1128, 1137, 84 L.Ed.2d 124 (1985); McCain v.
Lybrand, 465 U.S., at 250, 104 S.Ct., at 1046; Dougherty County Bd. of Ed. v.
White, 439 U.S., at 42, 99 S.Ct., at 374; Georgia v. United States, 411 U.S. 526,
534, 93 S.Ct. 1702, 1707, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400
U.S. 379, 383-385, 91 S.Ct. 431, 434-435, 27 L.Ed.2d 476 (1971); Allen v.
State Bd. of Elections, 393 U.S., at 570, 89 S.Ct., at 834. The critical question
for us, as for the District Court below, is whether "the challenged alteration has
the potential for discrimination." Hampton County Election Comm'n, 470 U.S.,
at 181, 105 S.Ct., at 1137 (emphasis in original). It is not contested that the
Party's filing fee had that potential.29

57

The second argument misconceives the purpose of the preclearance system and
the nature of the Act as a whole. Again, the very preamble of the Act states that
its purpose is to enforce the Fifteenth Amendment. 79 Stat. 437. Section 5 "is a
means of assuring in advance the absence of all electoral illegality, not only that
which violates the Voting Rights Act but that which violates the Constitution as
well." Chisom, 501 U.S., at 416, 111 S.Ct., at 2375 (SCALIA, J., dissenting)
(emphasis added). It is beyond question, therefore, that the Act encompassed
the discriminatory practices struck down in Terry and Smith, which this Court

had found violative of the same constitutional guarantees. Not only were they
the leading cases securing the right to vote against racial discrimination at the
time of enactment, but Congress passed the Act to facilitate the enforcement
effort they embodied. It strains credulity to suppose that despite Congress'
professed impatience with the "case-by-case" method of enforcing voting rights,
it did not mean to cover the c ases that capped the struggle to end the white
primary.30
58

The final argument fares no better. We have expressly rejected the contention
that the right to vote depends on the success rate of the candidates one
endorses. Voting at the nomination stage is protected regardless of whether it
"invariably, sometimes, or never determines the ultimate choice of the
representative." United States v. Classic, 313 U.S., at 318, 61 S.Ct., at 1039.
The operative test, we have stated repeatedly, is whether a political party
exercises power over the electoral process. See United States v. Sheffield Bd. of
Comm'rs, 435 U.S., at 122, 98 S.Ct., at 974 (" 5 has to apply to all entities
exercising control over the electoral processes within the covered States or
subdivisions"); Dougherty County Bd. of Ed. v. White, 439 U.S., at 44-45, 99
S.Ct., at 375-376 ( 5 coverage depends only on the "impact of a change on the
elective process"); Terry, 345 U.S., at 481, 73 S.Ct., at 819 ("[A]ny 'part of the
machinery for choosing officials' becomes subject to the Constitution's
restraints") (quoting Smith v. Allwright, 321 U.S., at 664, 64 S.Ct., at 765). That
situation may arise in two-party States just as in one-party States. Indeed, the
Terry concurrence summarized Smith as holding that "the Democratic Party of
itself, and perforce any other political party, is prohibited by [the Fifteenth]
Amendment from conducting a racially discriminatory primary election."
Terry, 345 U.S., at 481, 73 S.Ct., at 819 (Clark, J., concurring) (emphasis
added). See also Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 1496, 23
L.Ed.2d 1 (1969) (holding that the use of nomination petitions by independent
candidates is a procedure that "must pass muster against the charges of
discrimination or of abridgment of the right to vote"); Classic, 313 U.S., at 318,
61 S.Ct., at 1039. 31 The contrary position would make little sense. On
appellees' theory, one political party could not exclude blacks from the
selection of its nominee, however it chose that individual, but two parties each
independently could.

59

In any event, the controlling factor for our construction of 5 is Congress'

intent. It is apparent from the legislative history that Congress did not mean to
limit 5 to political parties whose nominating procedures "foreordained" the
results of the general election, see post, at __ (THOMAS, J., dissenting). The
impetus behind the addition of the term "party office" to 14 was the exclusion
of blacks from the Mississippi delegation to the National Democratic

Convention in 1964. See supra, at __-__. The activities of those delegates did
not settle the result of the presidential race; Republican candidates won the
general election in 1952 and 1956, and from 1968 until 1992, excluding 1976.
Nevertheless, Congress insisted that the selection of those delegates must be
open to all voters, black and white.
60

The imposition by an established political partythat is to say, a party

authorized by state law to determine the method of selecting its candidates for
elective office and also authorized to have those candidates' names
automatically appear atop the general election ballotof a new prerequisite to
voting for the party's nominees is subject to 5's preclearance requirement.

VI
61

Justice KENNEDY and Justice THOMAS reject our construction of 5 for a

number of reasons, none of which is convincing. They rely primarily on the
argument that, under a literal reading of the statutory text, a political party is not
a "State or political subdivision" within the meaning of 5 because it is not a
unit of government. See post, at __-__ (THOMAS, J.); post, at __-__
(KENNEDY, J.). The radicalism of this position should not be underestimated.
It entirely rejects the distinction between primary elections and conventions
that is the centerpiece of the Party's argument. On this view, even if a political
party flagrantly discriminated in the selection of candidates whose names
would appear on the primary election ballot or in the registration of voters in a
primary election, it would not fall within the coverage of 5. Unsurprisingly,
neither the District Court nor the Party advanced this extreme argument, for it is
plainly at war with the intent of Congress and with our settled interpretation of
the Act.32

62

Almost two decades ago we held in United States v. Sheffield Bd. of Comm'rs
that " 5, like the constitutional provisions it is designed to implement, applies
to all entities having any power over any aspect of the electoral process within
designated jurisdictions." 435 U.S., at 118, 98 S.Ct., at 972 (emphasis added).
We understood the phrase "State or political subdivision" to have a "territorial
reach" that embraced "actions that are not formally those of the State." Id., at
127, 98 S.Ct., at 977. The Court even invoked Terry to make its point. Ibid.
Justice THOMAS' efforts to confine Sheffield and our subsequent decision in
Dougherty do not make sense of those cases. Dougherty held that a county
school board qualifies as a "State or political subdivision" even though it is
clearly neither "one of the 50 constituent States of the Union," post, at __, nor
"a political subdivision" of any such State in a literal sense or as that term is
defined in the statute itself.33 Indeed, a major political party has far more power

over the electoral process than a school board, which we conceded has "no
nominal electoral functions." Dougherty, 439 U.S., at 44, 99 S.Ct., at 375.
63

Besides the fact that it contravenes our precedents, this argument fails at the
purely textual level. The Voting Rights Act uses the same word as the Fifteenth
Amendment"State" to define the authorities bound to honor the right to
vote. Long before Congress passed the Voting Rights Act, we had repeatedly
held that the word "State" in the Fifteenth Amendment encompassed political
parties. See Smith v. Allwright; Terry v. Adams. How one can simultaneously
concede that "State" reaches political parties under the Fifteenth Amendment,
yet argue that it "plainly" excludes all such parties in 5, is beyond our
understanding. Imposing different constructions on the same word is especially
perverse in light of the fact that the Actas it states on its facewas passed to
enforce that very Amendment. See United States v. CIO, 335

64

U.S. 106, 112, 68 S.Ct. 1349, 1352-1353, 92 L.Ed. 1849 (1948) ("There is no
better key to a difficult problem of statutory construction than the law from
which the challenged statute emerged"). Speculations about language that
might have more clearly reached political parties are beside the point. It would
be a mischievous and unwise rule that Congress cannot rely on our construction
of constitutional language when it seeks to exercise its enforcement power
pursuant to the same provisions. 34

65

Justice THOMAS makes two other arguments. First, he contends that we

should not defer to the Attorney General's regulation when construing the
coverage of 5. See post, at __. The argument is surprising because our
explanation of why 5 applies to political parties places no reliance on
principles of administrative deference. It is nevertheless interesting to note that
the regulation has been endorsed by three successive administrations.35

66

Second, relying principally on Jackson v. Metropolitan Edison Co., 419 U.S.

345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), and Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), Justice THOMAS argues that
a major political party is not a "state actor" unless its nominees are virtually
certain to win the general election. See post, at __-__. Thus, the Party would be
a state actor if Virginia allowed only its candidates' names to appear on the
ballot, but if the privilege of ballot access (or a preferred position) is reserved to
two parties, neither is performing a public function when it selects its
nominees. Given Justice THOMAS' reliance on cases construing the reach of
the Fourteenth Amendment, the argument seems to challenge both the
constitutional power of Congress to prohibit discrimination in the Party's
selection of its nominees for federal office and our construction of the statute.

67

To the extent the argument addresses the constitutionality of the Act, it is

wholly unconvincing. Jackson held that a private utility did not act "under color
of any statute . . . of any State" within the meaning of 42 U.S.C. 1983 when it
terminated a customer's electric service. Flagg Bros. held that a warehouseman
did not violate 1983 when it sold goods that were entrusted to it for storage.
In both cases, this Court concluded that the defendants were not acting under
authority explicitly or implicitly delegated by the State when they carried out
the challenged actions. In this case, however, as we have already explained,
supra, at __-__ the Party acted under the authority conferred by the Virginia
election code. It was the Commonwealth of Virginiaindeed, only Virginia
that had the exclusive power to reserve one of the two special ballot positions
for the Party.36 Moreover, unlike cases such as Jackson and Flagg Bros., this is
a case in which Congress has exercised the enforcement power expressly
conferred to it by 2 of the Fifteenth Amendment. That power unquestionably
embraces the authority to prohibit a reincarnation of the white primaries,
whether they limit the field of viable candidates to just one as in Terry, or to
just two as would be permissible under Justice THOMAS' construction of the
Act.

68

To the extent the argument addresses the coverage of the Act, it is equally
unconvincing. As we have already explained, the legislative history of the Act
makes it perfectly clear that Congress did not intend to limit the application of
5 to nominating procedures that "foreordained" the results of the general
election. After the statute was enacted, the majority opinions in Jackson and
Flagg Bros. included language that may limit the reach of the constitutional
holdings in the White Primary Cases. Those later opinions, however, shed no
light on the intent of the Congress that had already enacted the Voting Rights
Act and unambiguously expressed a purpose to have it apply to the candidate
selection process. While Justice THOMAS would narrowly confine the
coverage of the Act to practices that prevent a voter at a general election from
casting a ballot and having it counted, see post, at __-__ (citing the concurrence
in Holder v. Hall, 512 U.S. ----, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994)), we
have no doubt that Congress intended to prohibit the dominant political parties
from engaging in discriminatory practices in primary elections as well as
conventions of the character involved in this case.

69

In his separate dissent, Justice KENNEDY accuses us of adopting a "blanket

rule" that all political parties must preclear all of their "internal procedures."
See post, at __, __. That characterization is quite inaccurate. We hold that
political parties are covered under 5 only in certain limited circumstances:
here, only insofar as the Party exercises delegated power over the electoral
process when it charges a fee for the right to vote for its candidates. It is Justice

KENNEDY who proposes the "blanket rule" that political parties are never
covered under the Act, no matter what functions they perform and no matter
what authority the State grants them. As we have explained, on that
construction even situations involving blatant discrimination by political parties
of the kind not seen since the White Primary Cases would fail to trigger the
preclearance requirement.
70

Justice KENNEDY downplays the significance of this drastic limitation by

arguing that voters who face electoral discrimination could sue under the
Fifteenth Amendment. But lawsuits are no substitute for the preclearance
requirement; if they were, 5 would be superfluous for governmental units,
too. As we have explained, the fundamental purpose of the preclearance system
was to "shift the advantage of time and inertia from the perpetrators of the evil
to its victims," South Carolina v. Katzenbach, 383 U.S. 301, 328, 86 S.Ct. 803,
818, 15 L.Ed.2d 769 (1966), by declaring all changes in voting rules void until
they are cleared by the Attorney General or by the District Court for the
District of Columbia. Justice KENNEDY's construction would reimpose the
very burden 5 was designed to relievethe necessity of relying on "case-bycase litigation" to protect the right to vote. Ibid.

71

Justice KENNEDY argues that this would be a "much different" case if the
State "restructur ed its election laws in order to allow political parties the
opportunity to practice unlawful discrimination in the nominating process."
Post, at __. On his view, however, without any restructuring at all, the Party
could now take advantage of Virginia's present election laws to perform the
same discriminatory acts. It is simply inaccurate, moreover, to claim that the
State had undertaken such legislative efforts in each of the White Primary
Cases. The Jaybirds in Terry began discriminating against minority voters as
early as 1889, and, as we have explained, they operated entirely outside the
framework of Texas' electoral laws. Finally, it is highly counterintuitive to rely
on cases such as Smith and Terry for the proposition that voters affected by
discrimination should sue the State rather than the political party that carries it
out, for those cases were actions against parties, not the State.

72

What Justice KENNEDY apparently finds most objectionable in our decision is

the idea that political parties must seek preclearance from the Attorney General
of the United States, because she is a "political officer," post, at __. Pursuant to
5, the Attorney General is entrusted with the statutory duty of determining
whether submitted changes have the purpose or will have the effect to
discriminate. The suggestion implicit in Justice KENNEDY's opinion, that we
should avoid our construction of 5 because the Attorney General might
subvert her legal responsibility in order to harass a political party, is quite

extraordinary and unsupported by even a shred of evidence. In any event, any

political party distrustful of the Attorney General may seek preclearance under
5 from the District Court for the District of Columbia.
VII
73

Appellees advance two practical objections to our interpretation of 5: that it

will create an administrative nightmare for political parties as well as the
Department of Justice by requiring preclearance of a multitude of minor
changes in party practices; and that it threatens to abridge associational rights
protected by the First Amendment. Each of these objections merits a response.

74

With respect to the first, it is important to emphasize the limitations spelled out
in the Attorney General's regulation. To be subject to preclearance a change
must be one "affecting voting." Examples of changes that are not covered
include "changes with respect to the recruitment of party members, the conduct
of political campaigns, and the drafting of party platforms." 28 CFR 51.7
(1995). The line between changes that are covered and those that are not may
be difficult to articulate in the abstract, but given the fact that the Regulation
has been in effect since 1981 and does not appear to have imposed any
unmanageable burdens on covered jurisdictions, it seems likely that the
administrative concerns described by the Party are more theoretical than
practical.37 Indeed, past cases in which we were required to construe the Act
evoked similar protestations that the advocated construction would prove
administratively unworkable. See Dougherty County Bd. of Ed. v. White, 439
U.S., at 54, 99 S.Ct., at 380 (Powell, J., dissenting); United States v. Sheffield
Bd. of Comm'rs, 435 U.S., at 147-148, 98 S.Ct., at 987-988 (STEVENS, J.,
dissenting). Those fears were not borne out, and we think it no more likely that
these will either.

75

With respect to the second argument, we wholeheartedly agree with appellees

that the right of association of members of a political party "is a basic
constitutional freedom" and that "governmental action that may have the effect
of curtailing freedom to associate is subject to the closest scrutiny." Brief for
Appellees 25 (citing Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d
659 (1976), and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct.
1163, 2 L.Ed.2d 1488 (1958)). Such scrutiny, however, could not justify a
major political party's decision to exclude eligible voters from the candidate
selection process because of their race; the Fifteenth Amendment and our cases
construing its application to political parties foreclose such a possibility. See
Smith v. Allwright, 321 U.S., at 657, 64 S.Ct., at 762 (rejecting argument that
Democratic Party of Texas, as a private voluntary association, could exclude

black voters from its primary); Eu v. San Francisco County Democratic Central
Comm., 489 U.S. 214, 232, 109 S.Ct. 1013, 1025, 103 L.Ed.2d 271 (1989)
(justifying legislative "intervention" in internal party affairs where "necessary
to prevent the derogation of the civil rights of party adherents") (citing Smith ).
76

Moreover, appellees have not argued that the registration fee at issue in this
casewhich is challenged because it curtails the freedom of association of
eligible voters arguably in conflict with the interests protected by the Twentyfourth Amendmentis itself protected by the First Amendment. Rather, they
have suggested that hypothetical cases unrelated to the facts of this case might
implicate First Amendment concerns that would foreclose application of the
preclearance requirement. It is sufficient for us now to respond that we find no
constitutional impediment to enforcing 5 in the case before us.38 We leave
consideration of hypothetical concerns for another day.39

VIII
77

The District Court dismissed appellants' claim under 10 of the Act because
that section only authorizes enforcement proceedings brought by the Attorney
General and does not expressly mention private actions.40 While that ruling
might have been correct if the Voting Rights Act had been enacted recently, it
fails to give effect to our cases holding that our evaluation of congressional
action "must take into account its contemporary legal context." Cannon v.
University of Chicago, 441 U.S. 677, 698-699, 99 S.Ct. 1946, 1958, 60 L.Ed.2d
560 (1979); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456
U.S. 353, 381, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982).

78

Our holding in Cannon, that Title IX of the Education Amendments of 1972

create d a private right of action for victims of discrimination in education,
relied heavily on the fact that during the 1960's the Court had consistently
found such remedies notwithstanding the absence of an express direction from
Congress. 441 U.S., at 698, 99 S.Ct., at 1958; see also id., at 718, 99 S.Ct., at
1968-1969 (REHNQUIST, J., concurring). Indeed, Cannon cited and relied on
our earlier decision in Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct.
817, 22 L.Ed.2d 1 (1969), holding that private parties may enforce 5 of the
Voting Rights Act, to show that Congress acted against a "backdrop" of
decisions in which implied causes of action were regularly found. See 441 U.S.,
at 698, 99 S.Ct., at 1958, and nn. 22-23. The Voting Rights Act itself was
passed one year after this Court's decision in J.I. Case Co. v. Borak, 377 U.S.
426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), which applied a highly liberal
standard for finding private remedies.

79

In Allen we made two observations about 5 that apply as forcefully to 10.

We noted that "achievement of the Act's laudable goal could be severely
hampered . . . if each citizen were required to depend solely on litigation
instituted at the discretion of the Attorney General." 393 U.S., at 556, 89 S.Ct.,
at 826. The same is surely true of 10.41 Second, we attached significance to
the fact that the Attorney General had urged us to find that private litigants may
enforce the Act. Id., at 557, n. 23, 89 S.Ct., at 827, n. 23. The United States
takes the same position in this case. See Brief for United States as Amicus
Curiae 25-27.42

80

Congress has not only ratified Allen's construction of 5 in subsequent

reenactments, see H.R.Rep. No. 91-397, p. 8 (1970), but extended its logic to
other provisions of the Act. Although 2, like 5, provides no right to sue on
its face, "the existence of the private right of action under Section 2 . . . has
been clearly intended by Congress since 1965." S.Rep. No. 97-417, p. 30
(1982) (citing Allen ); see also H.R.Rep. No. 97-227, p. 32 (1981). We, in turn,
have entertained cases brought by private litigants to enforce 2. See, e.g.,
Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991);
Johnson v. De Grandy, 512 U.S. ----, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
It would be anomalous, to say the least, to hold that both 2 and 5 are
enforceable by private action but 10 is not, when all lack the same express
authorizing language.

81

Appellees argue that while 5 creates substantive rights, 10 merely directs

the Attorney General to bring certain types of enforcement a ctions. Brief for
Appellees 42-43. Exactly the same argument was made as to 5 in Allen. But
we held there that it was "unnecessary to reach the question" whether 5
created new rights or only gave plaintiffs new remedies to enforce existing
rights, for "[h]owever the Act is viewed, the inquiry remains whether the right
or remedy has been conferred upon the private litigant."43 393 U.S., at 556, n.
20, 89 S.Ct., at 826, n. 20. Even if it mattered whether 10 created rights or
remedies, the other provisions of the Act indicate that the antipoll tax provision
established a right to vote without paying a fee.44

82

Furthermore, when Congress reenacted and extended the life of the Voting
Rights Act in 1975, it recognized that private rights of action were equally
available under 10. Section 3, for example, originally provided for special
procedures in any action brought "under any statute to enforce the guarantees of
the fifteenth amendment" by the Attorney General. See 79 Stat. 437. In 1975,
Congress amended that section to cover actions brought by "the Attorney
General or an aggrieved person." 42 U.S.C. 1973a (1988 ed.) (emphasis

added). The Senate Report explained that the purpose of the change was to
provide the same remedies to private parties as had formerly been available to
the Attorney General alone. See S.Rep. No. 94-295, pp. 39-40 (1975).45 Since
10 is, by its terms, a statute designed for enforcement of the guarantees of the
Fourteenth and Fifteenth Amendments, see 42 U.S.C. 1973h(b) (1988 ed.),
Congress must have intended it to provide private remedies.
83

The same logic applies to 14(e), added in 1975, which allows attorney fees to
be granted to "the prevailing party, other than the United States," in any action
"to enforce the voting guarantees of the fourteenth or fifteenth amendment." 42
U.S.C. 1973l (e) (1988 ed.) (emphasis added). Obviously, a private litigant is
not the United States, and the Attorney General does not collect attorney's
fees.46 Both this section and 3 thus recognize the existence of a private right
of action under 10.47

84

Last, appellees argue that 10 does not apply to the Party's nominating
convention because a delegate registration fee is not a poll tax. This argument
addresses the merits rather than the right to sue. Without reaching the merits,
the District Court dismissed appellants' claim because it held there was no
private cause of action under 10. Since we hold that this conclusion is
incorrect, we postpone any consideration of the merits until after they have
been addressed by the District Court.48

85

The judgment of the District Court is reversed, and the case is remanded for
further proceedings consistent with this opinion.

86

It is so ordered.

87

Justice BREYER, with whom Justice O'CONNOR and Justice SOUTER join,
concurring in the judgment.

88

One historical fact makes it particularly difficult for me to accept the statutory
and constitutional arguments of Appellees. In 1965, to have read this Act as
excluding all political party activity would have opened a loophole in the
statute the size of a mountain. And everybody knew it. They knew that, despite
the enactment of the Fourteenth and Fifteenth Amendments, AfricanAmericans had been systematically deprived of the right to vote in many places
and for many years. They knew, too, that States had tried to maintain that status
quo through the "all-white" primarya tactic that tried to avoid the Fifteenth
Amendment by permitting white voters alone to select the "all-white"
Democratic Party nominees, who were then virtually assured of victory in the

general election. Once the Supreme Court held unlawful the "all-white"
primary, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944),
the obvious next step would have been to substitute an "all-white" preprimary
Democratic Party nominating process for the "all-white" primary. And, indeed,
that is just what happened, though the tactic failed because the Supreme Court
held one version of it, the Jaybird Association straw poll, unconstitutional.
Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953).
89

In 1965, Congress knew this history well, see, e.g., H.R.Rep. No. 439, 89th
Cong., 1st Sess., pp. 6-22 (noting White Primary Cases and discussing failure
of case-by-case enforcement of Fifteenth Amendment); S.Rep. No. 162, 89th
Cong., 1st Sess., pt. 3 (1965) (same); South Carolina v. Katzenbach, 383 U.S.
301, 308-315, 86 S.Ct. 803, 808-812, 15 L.Ed.2d 769 (1966) (summarizing
legislative history), and it knew more besides. It knew that Mississippi had just
sent to the Democratic National Convention an "all-white" delegation, selected
in a process of Party precinct meetings, caucuses, and conventions from which
"Negroes" were excluded. See, e.g., Hearings on H.R. 6400 before
Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st
Sess., pp. 456-457 (1965) (testimony of Rep. Bingham) (hereafter H.R. 6400
Hearings). How is it possible that a Congress, knowing this obvious history,
would have wanted to enact a "voting rights" law containing a major and
obvious loophole that would allow such practices to continue, thereby
threatening to destroy in practice the very promise of elementary fairness that
the Act held out?

90

The answer is that Congress did not want to enact a statute with that loophole,
and it did not do so. That is why Representative Bingham said, in offering the
amendment that brought voting for "party office" within the Act, see 42 U.S.C.
1973l (c)(1) (1988 ed.), that

91

"to be most effective, [the Act] should include express coverage of party
functions which directly, or indirectly, affect the primary or general elections in
any State." H.R. 6400 Hearings, at 457.

92

See also ibid. (explaining proposal as covering "political party meetings,

councils, conventions, and referendums which lead to endorsement or selection
of candidates who will run in primary or general elections"). And it is why he
told the full House of Representatives (after the Committee had accepted his
amendment) that his change

93

"would extend the protections of the bill to the type of situation which arose

last year when the regular Democratic delegation from Mississippi to the
Democratic National Convention was chosen through a series of Party caucuses
and conventions from which Negroes were excluded." 111 Cong. Rec. 16273
(1965) (remarks of Rep. Bingham).
94

See also H.R.Rep. No. 439, supra, at 32.

95

Representative Bingham's amendment, as the dissents point out, applies only to

actions taken by "State or political subdivision." 42 U.S.C. 1973c (1988 ed.)
But that language did not automatically place a party's all-white evasive
maneuvers beyond the statute's reach, because the Supreme Court had already
held that the word "State" as it appears in the Fifteenth Amendment could
constitutionally apply to certain activities of political parties, such as
nominating activities. See Smith, supra, at 662-666, 64 S.Ct., at 764-766; Terry,
supra, at 473, 73 S.Ct., at 815 (opinion of Frankfurter, J.) ("The application of
the prohibition of the Fifteenth Amendment to 'any State' is translated by legal
jargon to read 'State action' "). The question before us is whether in 1965
Congress intended its words to place even a party's convention-based, all-white
evasive maneuvers beyond the statute's reach, thereby ignoring even the
Mississippi Democratic Party's efforts the year before to use an "all-white"
convention process to help nominate a candidate for President of the United
States.

96

The answer to this question must be "no." In light of historythat of Jim Crow
and that of the Act one cannot understand Congress as having intended to
endorse any such evasion. And that is as far as we need go to answer the
statutory question presented by this case.

97

We need not go further in determining when party activities are, in effect,

substitutes for state nominating primaries because the case before us involves a
nominating convention that resembles a primary about as closely as one could
imagine. The convention (but for the $45 fee) was open to any voter declaring
loyalty to the Party, just like a primary. The Party itself had previously selected
the primary method to choose its nominee (in 1990, the year of the immediately
preceding Un ited States Senate race, the Party canceled its scheduled primary
when no candidate filed to oppose the incumbent, App. 24), but changed its
mind in 1994 without asking the Justice Department to "preclear" the switch.
And the Party chose to avail itself of special state-law preferences, in terms of
ballot access and position, offered to the convention's choice. Va.Code Ann.
24.2-511(A), 535, 613 (1993).

98

Nor need we go further to decide just which party nominating convention

98

Nor need we go further to decide just which party nominating convention

practices fall within the scope of the Act. There are already substantial limits as
to which voting-related "practices and procedures" must be precleared. See
Presley v. Etowah County Comm'n, 502 U.S. 491, 502-503, 112 S.Ct. 820, 828829, 117 L.Ed.2d 51 (1992) (gathering cases and setting out four preclearance
categories: changes involving "the manner of voting[,] . . . candidacy
requirements and qualifications[,] . . . the composition of the electorate that
may vote[,] . . . [and] the creation or abolition of an elective office"). Thus, for
example, the Party here states that besides nominating candidates, "other
business at its conventions" includes "adoption of resolutions or platforms
outlining the philosophy [of the Party]" and rules governing its internal
operation. App. 24. Under Presley, these activities are very likely not subject to
preclearance. See also 28 CFR 51.7 (1995) (making clear that "changes with
respect to the recruitment of party members, the conduct of political campaigns,
and the drafting of party platforms are not subject to the preclearance
requirement"). I would note, moreover, that the lower courts have applied 5
only to a small subcategory of party rules. See Hawthorne v. Baker, 750
F.Supp. 1090, 1094-1095 (M.D.Ala.1990) (three-judge court), vacated as moot,
499 U.S. 933, 111 S.Ct. 1408, 113 L.Ed.2d 440 (1991); Fortune v. Kings
County Democratic County Committee, 598 F.Supp. 761, 764-765
(E.D.N.Y.1984) (three-judge court) (per curiam); MacGuire v. Amos, 343
F.Supp. 119, 121 (M.D.Ala.1972) (three-judge court) (per curiam).

99

While these limitations exclude much party activityincluding much that takes
place at an assembly of its membersI recognize that some of the First
Amendment concerns raised by the dissents may render these limits yet more
restrictive in the case of party conventions. But the practice challenged here
the fee lies within the Act, and well outside the area of greatest
"associational" concern. Like the more obviously evasive "all-white" devices, it
is of a kind that is the subject of a specific constitutional Amendment. U.S.
Const., Amdt. 24, 1 (banning poll tax).

100 We go no further in this case because, as the dissents indicate, First

Amendment questions about the extent to which the Federal Government,
through preclearance procedures, can regulate the workings of a political party
convention, are difficult ones, see, e.g., Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271
(1989), as are those about the limits imposed by the state action cases. See
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114
L.Ed.2d 660 (1991). Those questions, however, are properly left for a case that
squarely presents them.
101 Such questions, we are satisfied, are not so difficult as to warrant interpreting

this Act as containing a loophole that Congress could not have intended to
create. See, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152
(1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).
See also Eu, supra, at 232, 109 S.Ct., at 1025 (recognizing that the First
Amendment, while guaranteeing associational rights, does not bar "intervention
. . . necessary to prevent the derogation of the civil rights of party adherents");
Presley, 502 U.S., at 502-503, 112 S.Ct., at 828-829 (setting out which votingrelated practices are subject to preclearance); Brief for Appellees 6-7 (agreeing
5 reaches certain p rimary-related party activity).
102 An interpretation of 5 and 14(c)(1), in light of the language, history, and
purpose of the Act, sufficient to avoid that loophole is sufficient to answer the
question presented here. In this case, I conclude that this Court has not decided
the exact boundaries that the Constitution draws around the subcategory of
party rules subject to 5. Further definition should await another day.
103 Finally, I agree with Justice STEVENS that Congress must be taken to have
intended to authorize a private right of action to enforce 10 of the Act, 42
U.S.C. 1973h (1988 ed.). He explains, ante, at __-__, that the rationale of
Allen v. State Bd. of Elections, 393 U.S. 544, 556-557, 89 S.Ct. 817, 826-827,
22 L.Ed.2d 1 (1969) (Congress established private right of action to enforce
5), applies with similar force not only to 2 but also to 10. Cf. S.Rep. No. 97417, pt. 1, p. 30 (1982) (implied private right of action to enforce 2 "has been
clearly intended by Congress since 1965"). The differences in statutory
language and structure between 5 and 10 are not determinative. Ante, at __.
In addition, I do not know why Congress would have wanted to treat
enforcement of 10 differently from enforcement of 2 and 5, particularly
after 1975. In that year, Congress focused on 10, deleted the then-obsolete
10(d), made technical amendments to 10(b), and thereby indicated its belief
that 10 remained an important civil rights provision. Pub.L. 94-73, 408, 89
Stat. 405. See also S.Rep. No. 94-295, pp. 40-41 (1975) (reiterating general
importance of private enforcement of Act); H.R. Report No. 94-196, pp. 33-34
(1975) (same). For these reasons, I believe Congress intended to establish a
private right of action to enforce 10, no less than it did to enforce 2 and 5. I
express no view as to the merits of the underlying 10 claim.
104 Justice SCALIA, with whom Justice THOMAS joins, dissenting.
105 "Any interference with the freedom of a party is simultaneously an interference
with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234,
250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957). For that reason, we have
always treated government assertion of control over the internal affairs of

political partieswhich, after all, are simply groups of like-minded individual

votersas a matter of the utmost constitutional consequence. See, e.g.,
Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S.
107, 121-122, 101 S.Ct. 1010, 1018-1019, 67 L.Ed.2d 82 (1981); Cousins v.
Wigoda, 419 U.S. 477, 487-488, 95 S.Ct. 541, 547-548, 42 L.Ed.2d 595 (1975);
O'Brien v. Brown, 409 U.S. 1, 4-5, 92 S.Ct. 2718, 2720-2721, 34 L.Ed.2d 1
(1972) (per curiam). What is at issue in this case, therefore, is not merely
interpretation of 5 of the Voting Rights Act, 42 U.S.C. 1973c, but,
inextricably bound up with that interpretation, the First Amendment freedom of
political association.
106 There are several respects in which both Justice STEVENS' and Justice
BREYER's opinion constitute remarkable departures from the settled course of
our First Amendment jurisprudence. The most obvious, perhaps, is their refusal
to consider the present application of 5 unconstitutional on the basis of
"hypothetical cases unrelated to the facts of this case [that] might implicate
First Amendment concerns." STEVENS, J., at 1210.1 Instead, they "leave
consideration of hypothetical concerns for another day," id., at ----, and reserve
such "difficult" questions "for a case that squarely presents them," BREYER, J.,
at 1215. That is a luxury our precedents do not allow. It has been a constant of
our free-speech jurisprudence that claimants whose First Amendment rights are
affected may challenge a statute, not merely on the ground that its specific
application to them is unconstitutional, but also on the ground that its
application is void in a substantial number of other contexts that arguably fall
within its scope. This principle of "overbreadth" has been applied not only in
the context of freedom of speech narrowly speaking, but also in the context of
the freedom to associate for the purpose of political speech. See, e.g., United
States v. Robel, 389 U.S. 258, 265-266, 88 S.Ct. 419, 424-425, 19 L.Ed.2d 508
(1967); Elfbrandt v. Russell, 384 U.S. 11, 18-19, 86 S.Ct. 1238, 1241-1242, 16
L.Ed.2d 321 (1966).
107 Thus, to satisfy oneself that the particular practice challenged here lies "well
outside the area of greatest 'associational' concern," BREYER, J., at 1215, is to
take only the first and smallest step in treating the weighty constitutional
question posed by application of 5 to political parties. In this First
Amendment context, to "go no further than necessary to decide the case at
hand" means going far enough to assure against overbreadth. We must do that
whenever "rights of association [are] ensnared in statutes which, by their broad
sweep, might result in burdening innocent associations." Broadrick v.
Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)
(citing, inter alia, Keyishian v. Board of Regents of Univ. of State of N. Y., 385
U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). Justice STEVENS does not

assert that applying 5 to party activity passes First Amendment muster except
"in the case before us," ante, at __, and Justice BREYER acknowledges that
the First Amendment may bar application of 5 to other convention activity,
see ante, at ----. Yet despite these indications of overbreadth, neither opinion
attempts to provide what our cases require: a "limiting construction or partial
invalidation" that will "remove the seeming threat or deterrence to
constitutionally protected expression," Broadrick, supra, at 613, 93 S.Ct., at
2916.
108 Besides flouting the doctrine of overbreadth, the opinions' refusal to provide "
[f]urther definition" of 5's application to political parties, BREYER, J., at
1216, leaves political parties without guidance as to "when [their] activities are,
in effect, substitutes for state nominating primaries," id., at 1214, and as to
"which party nominating convention practices fall within the scope of the Act,"
ibid.2 Before today, this Court has not tolerated such uncertainty in rules
bearing upon First Amendment activities, because it causes persons to refrain
from engaging in constitutionally protected conduct for fear of violation. See,
e.g., Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322-1323, 12
L.Ed.2d 377 (1964). Surely such an effect can be expected here. Party officials
will at least abstain from proceeding with certain convention activities without
notification; and in light of the high degree of uncertainty they may well decide
to hold no conventions at all.
109 Another respect in which the Court today diverges from our free-speech
jurisprudence is even more astounding, if possible, than its disregard of the
doctrines of overbreadth and vagueness. From reading the majority's two
opinions , one would surmise that the only constitutional question at issue is
whether the First Amendment permits the Federal Government to make
unlawful and set aside party rule changes designed to hinder racial minorities'
full participation in election-related functions. But this statute does not present
only that question, any more than a statute establishing a Board of Obscenity
Censors, to which films or books must be submitted for approval before
publication, presents only the question whether the First Amendment permits
the prohibition of obscenity. See, e.g., Freedman v. Maryland, 380 U.S. 51, 85
S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
83 S.Ct. 631, 9 L.Ed.2d 584 (1963). A point entirely ignored by Justices
STEVENS and BREYER is that this case involves a classic prior restraint.
110 Our cases have heavily disfavored all manner of prior restraint upon the
exercise of freedoms guaranteed by the First Amendment. Although most often
imposed upon speech, prior restraints are no less noxious, and have been no
less condemned, when directed against associational liberty (with which, we

have said, freedom of speech "overlap[s] and blend[s]," Citizens Against Rent
Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 300, 102
S.Ct. 434, 439, 70 L.Ed.2d 492 (1981)). See Thomas v. Collins, 323 U.S. 516,
539-540, 65 S.Ct. 315, 326-327, 89 L.Ed. 430 (1945); Carroll v. President and
Comm'rs of Princess Anne, 393 U.S. 175, 180-185, 89 S.Ct. 347, 351-354, 21
L.Ed.2d 325 (1968); cf. Healy v. James, 408 U.S. 169, 184, 92 S.Ct. 2338,
2347-2348, 33 L.Ed.2d 266 (1972). Today, however, a majority of the Court
readily accepts the proposition that 5 can subject this First Amendment
freedom to a permit system, requiring its exercise to be "precleared" with the
Government even when it is not being used unlawfully. The Court thus makes
citizens supplicants in the exercise of their First Amendment rights.
111 As the five Justices who support the judgment of the Court choose to read this
statute, a political party (or at least one that the State has awarded a place on
the ballot3 ) can make no change in its practices or procedures that might affect a
voter's capacity to have his candidate electedno matter how race-neutral in
purpose and effectunless it first obtains prior clearance by the Government,
see STEVENS, J., at 1198-1199; BREYER, J., at 1214-1215. Any change not
preclearedafter a proceeding in which the burden rests on the party to show
absence of discriminatory purpose and effect, see City of Rome v. United States,
446 U.S. 156, 172-173, 183, n. 18, 100 S.Ct. 1548, 1559-1560, 1565 n. 18, 64
L.Ed.2d 119 (1980)can be enjoined. Given that political parties are organized
with the near-exclusive purpose of influencing the outcomes of elections, I
think it obvious that as construed today, 5 requires political parties to submit
for prior Government approval, and bear the burden of justifying, virtually
every decision of consequence regarding their internal operations. That is the
most outrageous tyranny. A freedom of political association that must await the
Government's favorable response to a "Mother, may I?" is no freedom of
political association at all.
112 There would be reason enough for astonishment and regret if today's judgment
upheld a statute clearly imposing a prior restraint upon private, First
Amendment conduct. But what makes today's action astonishing and
regrettable beyond belief is that this Court itself is the architect of a prior
restraint that the law does not clearly express. And here is yet another respect in
which today's opinions ignore established law: their total disregard of the
doctrine that, where ambiguity exists, statutes should be construed to avoid
substantial constitutional questions. That has been our practice because we
presume that "Congress, which also has sworn to protect the Constitution,
would intend to err on the side of fundamental constitutional liberties when its
legislation implicates those liberties." Regan v. Time, Inc., 468 U.S. 641, 697,
104 S.Ct. 3262, 3292, 82 L.Ed.2d 487 (1984) (STEVENS, J., concurring in

judgment in part and dissenting in part). We have in the past relied upon this
canon to construe statutes narrowly, so as not to impose suspect prior restraints.
For example, in Lowe v. SEC, 472 U.S. 181, 105 S.Ct. 2557, 86 L.Ed.2d 130
(1985), we held that a statute requiring all "investment advisors" to register
with the Securities and Exchange Commission, see 15 U.S.C. 80b-3, does not
extend to persons who publish "nonpersonalized" investment advice such as
periodic market commentarythereby avoiding the question whether Congress
could constitutionally require such persons to register. Lowe, supra, at 190,
204-205, and n. 50, 105 S.Ct., at 2562-2563, 2569-2570, and n. 50. How
insignificant that prior restraint when compared with the requirement for
preclearance of all changes in self-governance by political parties.
113 What drives the majority to find a prior restraint where the text does not
demand (or even suggest) it is the notion that it "strains credulity" to think that
Congress would enact a Voting Rights Act that did not reach political-party
activity, STEVENS, J., at 1205. Congress, the majority believes, "could not
have intended" such a result, BREYER, J., at 1215. I doubt the validity of that
perception; the assumption it rests uponthat a legislature never adopts halfway measures, never attacks the easy part of a problem without attacking the
more sensitive part as wellseems to me quite false. Indeed, the one-step-at-atime doctrine that we regularly employ in equal-protection cases is based on
precisely the opposite assumption. See, e.g., Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955).
114 Moreover, even if one were to accept the majority's question-begging
assumption that Congress must have covered political-party activity, and even
if one were to credit the majority's sole textual support for such coverage,
today's decision to impose a prior restraint upon purely private, political-party
activity would still be incomprehensible. The sole textual support adduced by
the two opinions consists of 14's reference to elections for "party office," and
2's reference to "the political processes leading to nomination or election." See
STEVENS, J., at 1200-1201; BREYER, J., at 1214. Justice THOMAS gives
compelling reasons why these phrases cannot bear the meaning the majority
would ascribe, see post, at __-__. But even accepting that they mean what the
majority says, all that the phrase in 14 shows is that some portion of the Act
reaches private, political-party conduct; and all that the phrase in 2 shows is
that (at least in some circumstances) 2 does so. Nothing in the text, nor
anything in the assumption that Congress must have addressed political-party
activity, compels the conclusion that Congress addressed political-party activity
in the preclearance, prior-restraint scheme of 5,4 which is of co urse the only
question immediately before us. Thus, the only real credulity-strainer involved
here is the notion that Congress would impose a restraint bearing a "heavy

presumption against its constitutional validity," Bantam Books, 372 U.S., at 70,
83 S.Ct., at 639, in such a backhanded fashionsaying simply "State[s]" and
"political subdivision[s]" in 5, but meaning political parties as well. Because I
find that impossible to believe, I respectfully dissent.
115 Justice KENNEDY, with whom The Chief Justice joins, dissenting.
116 I join Part II of Justice THOMAS' dissent, which demonstrates that 10 of the
Voting Rights Act, 42 U.S.C. 1973h (1988 ed.), does not create a private right
of action, post, at __-__.
117 With respect to 5 of the Act, 1973c, this statutory construction case does not
require us to explore the full reach of Congress' substantial power to enforce the
Thirteenth, Fourteenth, and Fifteenth Amendments. Cf., e.g., Rome v. United
States, 446 U.S. 156, 173-182, 100 S.Ct. 1548, 1559-1564, 64 L.Ed.2d 119
(1980). Nor does it present the question whether the rule of attribution we have
adopted in the state action cases would, of its own force and without statutory
implementation, extend the guarantees of the Equal Protection Clause to these
appellants. The state action doctrine and case authorities such as Smith v.
Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), and Terry v.
Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), may be of
considerable relevance to equal protection or other constitutional challenges
still pending before the District Court, see ante, at __ (opinion of STEVENS,
J.), but those matters need not be discussed here. It would be unwise to do so;
for, with full recognition of the vital doctrine that Smith, Terry, and kindred
cases elaborate when we confront discrimination in the participatory processes
that are the foundation of a democratic society, we have been cautious to
preserve the line separating state action from private behavior that is beyond
the Constitution's own reach. " 'Careful adherence to the "state action"
requirement preserves an area of individual freedom by limiting the reach of
federal law' and avoids the imposition of responsibility on a State for conduct it
could not control." National Collegiate Athletic Assn. v. Tarkanian, 488 U.S.
179, 191, 109 S.Ct. 454, 461, 102 L.Ed.2d 469 (1988), quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936-937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d
482 (1982).
118 It is "unnecessary to traverse that difficult terrain in the present case," Lebron v.
National Railroad Passenger Corporation, 513 U.S. ----, ----, 115 S.Ct. 961,
964, 130 L.Ed.2d 902 (1995), because 5 of the Voting Rights Act does not
reach all entities or individuals who might be considered the State for
constitutional purposes. Congress was aware of the difference between the
State as a political, governing body and other actors whose conduct might be

subject to constitutional challenge or the congressional enforcement power, an

d intended 5 to reach only the former. Justice THOMAS explains why 5,
both by its terms and with the gloss placed on it in United States v. Sheffield
Bd. of Comm'rs, 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978), does not
reach the Party's actions. Post, at __-__. Furthermore, Congress demonstrated
its ability to distinguish between the State and other actors in the text of the Act
itself. Section 11 of the Act makes it unlawful for any "person acting under
color of law" to "fail or refuse to permit any person to vote who is entitled to
vote under" specified provisions of the Act, or to "willfully fail or refuse to
tabulate, count, and report such person's vote," 42 U.S.C. 1973i(a), and also
provides that "[n]o person, whether acting under color of law or otherwise,
shall intimidate, threaten, or coerce . . . any person for voting or attempting to
vote," 1973i(b).
119 In the context of the Civil Rights Act of 1871, Rev. Stat. 1979, 42 U.S.C.
1983 (1988 ed.), which uses similar language to describe the class of
individuals subject to its reach ("[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State"), we have said " 'under
color' of law has consistently been treated as the same thing as the 'state action'
required under the Fourteenth Amendment." United States v. Price, 383 U.S.
787, 794, n. 7, 86 S.Ct. 1152, 1157, n. 7, 16 L.Ed.2d 267 (1966). See also
Lugar v. Edmondson Oil Co., supra, at 929, 102 S.Ct., at 2749-2750; RendellBaker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-2770, 73 L.Ed.2d 418
(1982); West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40
(1988); National Collegiate Athletic Assn. v. Tarkanian, supra, at 182, n. 4, 109
S.Ct., at 457, n. 4 (1988); Hafer v. Melo, 502 U.S. 21, 28, 112 S.Ct. 358, 363,
116 L.Ed.2d 301 (1991). There is no apparent reason why the "under color of
law" requirement of 11 should not also be considered coterminous with the
state action requirement of the Amendment that statute enforces, and we should
infer from Congress' employment of that requirement an intent to distinguish
between the State and those other actors to whom governmental status must be
imputed in some instances, cf. Gustafson v. Alloyd Co., 513 U.S. ----, ----, 115
S.Ct. 1061, 1063, 131 L.Ed.2d 1 (1995) (elementary canon of statutory
construction to give a term a "consistent meaning throughout the Act").
Congress knows the difference between regulating States and other actors, and
in 5 chose only to regulate the States.
120 The First Amendment questions presented by governmental intrusion into
political party functions are a further reason for caution before we adopt a
blanket rule that preclearance is required on the theory that when Congress
used the word "State" it also meant "political party." Sensitive consideration of
the rights of speech and association counsels much restraint before finding that

a political party is a state actor for purposes of all preclearance requirements. In

particular, we have called for circumspection in drawing the state action line
where political parties and their roles in selecting representative leaders are
concerned. See Cousins v. Wigoda, 419 U.S. 477, 483, n. 4, 95 S.Ct. 541, 545,
n. 4, 42 L.Ed.2d 595 (1975) (reserving question whether national political
party's selection of delegates to nominating convention amounts to state action).
See also id., at 492-494, 95 S.Ct., at 550-551 (REHNQUIST, J., concurring in
result); O'Brien v. Brown, 409 U.S. 1, 4-5, 92 S.Ct. 2718, 2720-2721, 34
L.Ed.2d 1 (1972) (per curiam) (staying order that political party seat certain
delegates at its national convention and expressing "grave doubts" about Court
of Appeals' action in case raising "[h]ighly important" state action question);
Republican State Central Comm. of Ariz. v. Ripon Society Inc., 409 U.S. 1222,
1226-1227, 93 S.Ct. 1475, 1477-1478, 34 L.Ed.2d 717 (1972) (REHNQUIST,
J. , in chambers); Ripon Society, Inc. v. National Republican Party, 173
U.S.App. D.C. 350, 357-359, 525 F.2d 567, 574-576 (1975) (en banc), cert.
denied, 424 U.S. 933, 96 S.Ct. 1147, 1148, 47 L.Ed.2d 341 (1976).
121 Notwithstanding the terse dismissals of these concerns in the opinions that
support today's judgment, ante, at __ (opinion of STEVENS, J.); ante, at __
(opinion of BREYER, J.), we have recognized before now the important First
Amendment values that attach to a political party's "freedom to identify the
people who constitute the association, and to limit the association to those
people only." Democratic Party of United States v. Wisconsin ex rel. La
Follette, 450 U.S. 107, 122, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). These
concerns would provide a sound basis for construing an ambiguous reference to
the term "State" to avoid constitutional difficulties. See Miller v. Johnson, 515
U.S. ----, ---- - ----, 115 S.Ct. 2475, 2491-2492, 132 L.Ed.2d 762 (1995)
(refusing to defer to Attorney General's interpretation of 5 that raised equal
protection concerns). Cf. Gregory v. Ashcroft, 501 U.S. 452, 460-464, 111 S.Ct.
2395, 2400-2403, 115 L.Ed.2d 410 (1991) (adopting plain statement rule with
respect to statutory ambiguity that implicates Tenth Amendment concerns).
Given the absence of any ambiguity in the statutory text before us, there is no
basis for a grasping and implausible construction of the Act that brings these
constitutional problems to the fore.
122 We are well advised to remember that Congress, too, can contribute in drawing
the fine distinctions required in the balancing of associational and participatory
rights. Cf. United States v. Lopez, 514 U.S. ----, ----, 115 S.Ct. 1624, 1639, 131
L.Ed.2d 626 (1995) (KENNEDY, J., concurring) ("[I]t would be mistaken and
mischievous for the political branches to forget that the sworn obligation to
preserve and protect the Constitution in maintaining the federal balance is their
own in the first and primary instance"). No such fine distinctions were

attempted, I would submit, in this statute; if anything "strains credulity," ante,

at __ (opinion of STEVENS, J.), it is that Congress meant to include the
Democratic and Republican Parties when it used the simple word "State" in the
Voting Rights Act.
123 The opinions supporting the judgment express concern that cases like Smith and
Terry would not be covered by the Voting Rights Act were the interpretation
adopted today to be rejected. To begin with, of course, we should note that the
Voting Rights Act was not needed to invalidate the discrimination that occurred
in those cases. The Constitution of its own force did that. What we confront
here, instead, is a statutory scheme in which entities seeking preclearance must
ask a political officer (the Attorney General of the United States) for
permission to change various internal procedures. It is a far reach to suppose
that Congress required this for ordinary party processes. The White Primary
Cases involved ever-increasing efforts on the part of the State itself to
camouflage discrimination in the guise of party activity. See ante, at __-__
(opinion of STEVENS, J.). There is no claim in this case that the
Commonwealth's statutory policy of allowing the Republican Party (and any
other political party that receives at least 10 percent of the vote in either of two
preceding elections) the option to nominate by primary or convention, Va.Code
Ann. 24.2-509 (1993), is void on account of the Commonwealth's failure to
preclear that policy in accordance with the requirements of 5. Rather, the
argument embraced today is that the Party itself acted in violation of 5 by
failing to preclear the $45 registration fee. We would face a much different
case if a State, without first seeking 5 preclearance, restructured its election
laws in order to allow political parties the opportunity to practice unlawful
discrimination in the nominating process. If, as seems li kely, such a change
constituted a "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," 42 U.S.C. 1973c, 5 would require
preclearance by the State. For this reason, appellants' counsel overstated the
matter by arguing that if Congress intended to reach only States qua States, and
not political parties, "the Voting Rights Act would have been strangled at its
birth." Tr. of Oral Arg. 12.
124 Although Congress enacted 5 to counteract the notorious history of attempts
to evade the guarantees of equal treatment in voting, South Carolina v.
Katzenbach, 383 U.S. 301, 327-328, 86 S.Ct. 803, 818-819, 15 L.Ed.2d 769
(1966), that history does not give us license to expand the Act's coverage
beyond the boundaries of the statutory text, Presley v. Etowah County Comm'n,
502 U.S. 491, 509, 112 S.Ct. 820, 831-832, 117 L.Ed.2d 51 (1992). I would
adhere to that text, which reflects a decided intent on Congress' part to reach

governmental, not private, entities. With respect, I dissent.

125 Justice THOMAS, with whom THE CHIEF JUSTICE and Justice SCALIA
join, and with whom Justice KENNEDY joins in Part II, dissenting.
126 Two discrete questions of statutory interpretation control appellants' claim
under 5 of the Voting Rights Act: whether the Republican Party of Virginia is
a "State or political subdivision" and, if so, whether the fee imposed upon its
conventioneers constitutes a procedure "with respect to voting." 42 U.S.C.
1973c (1988 ed.). The plain meaning of the Voting Rights Act mandates a
negative answer to both of these questions. The text of the Act also forecloses
the availability of a private cause of action under 10. I therefore dissent.
*A
127
128 Section 5 declares that, "[w]henever a State or political subdivision . . . shall
enact or seek to administer" any change with respect to voting, it may not
institute that change absent preclearance. 42 U.S.C. 1973c (emphasis added).
Only when a "State or political subdivision" promulgates new voting rules is
5 even arguably implicated. See United States v. Bd. of Comm'rs of Sheffield,
Alabama, 435 U.S. 110, 141, 98 S.Ct. 965, 984, 55 L.Ed.2d 148 (1978)
(STEVENS, J., dissenting) ("As a starting point, it is clear that [ 5] applies
only to actions taken by two types of political unitsStates or political
subdivisions"). Thus, the first issue to be decided here is whether the
Republican Party of Virginia is the type of entity that must comply with the
preclearance requirement of 5.
129 Justice STEVENS does not directly address this threshold question of pure
statutory interpretation. He begins with the Attorney General's regulation,
rather than with the text of 5 itself. Cf. Norfolk & Western R. Co. v. Train
Dispatchers, 499 U.S. 117, 128, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991)
("As always, we begin with the language of the statute and ask whether
Congress has spoken on the subject before us"). In my opinion, the Republican
Party of Virginia is not a "State or political subdivision" within the meaning of
5, and that statute is therefore not triggered in this case.
130 * The Voting Rights Act provides no definition of the term "State." When
words in a statute are not otherwise defined, it is fundamental that they "will be
interpreted as taking their ordinary, contemporary, common meaning." Perrin
v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979).
The ordinary meaning of the word "State" does not encompass a partisan group

such as the Republican Party of Virginia. Rather, that word particularly when
capitalizedis generally understood to mean one of the 50 constituent States of
the Union. See Webster's New International Dictionary 82 (2d ed.1957)
(defining "State" as "any body of people occupying a definite territory and
politically organized under one government, esp. one that is a sovereign, or not
subject to exte rnal control; . . . Cf. COMMONWEALTH"). Indeed, it nearly
belabors the point to explain that, in common parlance, "State" normally refers
to a geographical unit of the United States, such as California or Massachusetts.
Our own opinions in 5 cases use the word in this natural fashion. See, e.g.,
United States v. Sheffield Bd. of Comm'rs, supra, at 113, 98 S.Ct., at 970
(section 5 "requires that States, like Alabama " preclear new voting rules)
(emphasis added); Hadnott v. Amos, 394 U.S. 358, 365-366, 89 S.Ct. 1101,
1105, 22 L.Ed.2d 336 (1969) (section 5 "provides that whenever States like
Alabama seek to administer" voting changes, they must preclear) (emphasis
added). Even Justice STEVENS employs "State" in its usual sense. See ante, at
__-__ ("Virginia is one of the seven States to which the 4 coverage formula
was found applicable. . . . The entire Commonwealth has been subject to the
preclearance obligation in 5 ever since") (emphasis added).
131 That the statutory term "State" should be applied in light of its ordinary
meaning is reinforced by the Act's definition of the term "political subdivision."
Section 14(c)(2) states that " 'political subdivision' shall mean any county or
parish," with certain exceptions not relevant here. 42 U.S.C. 1973l (c)(2)
(1988 ed.). As appellants' counsel explained at oral argument, the phrase
"political subdivision" refers to "particular geographic regions" within a State,
such as New York's Westchester County. Tr. of Oral Arg. 15-16. See also
United States v. Sheffield Bd. of Comm'rs, supra, at 128, n. 15, 98 S.Ct., at 977,
n. 15, (section 14(c)(2) "obviously refer[s] to a geographic territory, and the
usages of 'political subdivision' in the Act and the legislative history leave no
doubt that it is in this sense that Congress used the term").1 Given that limited
understanding of "political subdivision," it would be odd indeed if the term
"State," which immediately precedes "political subdivision," did not have an
analogous meaning. The terms "State" and "political subdivision" should both
be construed to refer solely to the various territorial divisions within a larger
unit of territorially-defined government.
132 There is further statutory evidence to support this interpretation of "State." The
Act elsewhere speaks of the "territory" of a State or political subdivision. See,
e.g., 1973b(a)(1)(F) (referring to "such State or political subdivision and all
governmental units within its territory ") (emphasis added). Political parties, of
course, are made up not of land, but of people. It is nonsensical to talk of things
existing "within [the] territory" of a political party. Also, the definitional

section of the 1970 Extension of the Voting Rights Act, Pub.L. 91-285, 84 Stat.
316, indicates that Congress uses the word "State" in voting rights statutes to
connote geographic territories, not political parties. See 42 U.S.C. 1973aa1(h) (defining, for purposes of 202 of the Extension Act, "[t]he term 'State' "
as "each of the several States and the District of Columbia").
133 A State, of course, cannot "enact or seek to administer" laws without resort to
its governmental units. 1973c. A State necessarily operates through its
legislative, executive, and judicial bodies. When the legislature passes a law, or
an administrative agency issues a policy directive, official action has
unquestionably been taken in the name of the State. Accordingly, voting
changes administer ed by such entities have been governed consistently by 5.
See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d
1 (1969) (requiring preclearance of amendments to Mississippi Code enacted
by state legislature and bulletin distributed by Virginia Board of Elections). See
also United States v. Saint Landry Parish School Bd., 601 F.2d 859, 864, n. 8
(C.A.5 1979) ("The cases uniformly speak of 5 as applying to 'enactments,'
'legislation,' 'regulations,' and 'laws'all actions taken by the governmental
authority of state"). Unlike the Virginia General Assembly, however, the
Republican Party of Virginia is not an organ of the State through which the
State must conduct its affairs, and the Party has no authority to formulate state
law. The Party's promulgations thus cannot be within 5's reach of "any state
enactment which alter[s] the election law of a covered State." Allen v. State Bd.
of Elections, supra, at 566, 89 S.Ct., at 832 (quoted ante, at __).
134 Although Justice STEVENS points to past preclearance submissions as
evidence that 5 covers political parties, ante, at __, n. 18, those submissions
are largely irrelevant to the meaning of 5. It should come as no surprise that
once the Attorney General promulgated a regulation expressly covering
political parties, 28 CFR 51.7 (effective Jan. 5, 1981), some of those
organizations requested preclearance and the Justice Department processed
their requests. Tellingly, Justice STEVENS is able to cite only a handful of
party submissions that predate the Attorney General's regulation.2 This fact
confirms what common sense instructs: most people who read 5 simply
would not think that the word "State" embraces political parties. This common
sense understanding also explains why virtually every one of this Court's 5
cases has involved a challenge to, or a request for approval of, action
undertaken by a State or a unit of state government.3
135 In light of the plain meaning of the phrase "State or political subdivision," I see
no reason to defer to the Attorney General's regulation interpreting that statute
to cover political parties. See 28 CFR 51.7 (1995). Though the Party has not

challenged the validity of the regulation, it hardly follows that this Court is
bound to accept it as authoritative. We defer to the Attorney General on
statutory matters within her authority "only if Congress has not expressed its
intent with respect to the question, and then only if the administrative
interpretation is reasonable." Presley v. Etowah County Comm'n, 502 U.S. 491,
508, 112 S.Ct. 820, 831, 117 L.Ed.2d 51 (1992). As explained, 5 on its face
resolves the question whether political parties are subject to the preclearance
rule of 5: A political party is simply not a "State," regardless of the particular
activity in which it might be engaging. Congress has conveyed its intent to limit
5 to the States themselves and their political subdivisions. Accordingly, the
regulation warrants no judicial deference. Cf. id., at 508-509, 112 S.Ct., at 831832 (declining to defer to Attorney General's construction of 5).4
136 My reading of 5 is squarely supported by our only precedent on the
applicability of 5 to political parties, Williams v. Democratic Party of
Georgia, Civ. Action No. 16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U.S. 809,
93 S.Ct. 67, 34 L.Ed.2d 70 (1972). Williams held, as a matter of "statutory
construction," Civ. Action No. 16286, at 5, that 5 does not apply to political
parties. The District Court stated that "[t]he Act does not refer to actions by
political parties but refers to actions by a 'State or political subdivision.' " Id., at
4. Though the District Court believed, based on legislative history, that
Congress probably meant to include the election of party delegates under the
Act, the court felt itself bound by the fact that 5 addresses only actions of the
State. This limitation was further evidenced, in the court's view, by 5's
provision that preclearance be sought by "the chief legal officer or other
appropriate official of such State or subdivision." 42 U.S.C. 1973c (1988 ed.).
The District Court concluded that the State itself had "no connec tion" with the
delegate selection process other than providing for the public filing of the rules
for selection, and that, though the action of the Party might be "state action" in
the constitutional sense, 5 could not be read so broadly. Civ. Action No.
16286, at 5. Essential to the judgment of the District Court in Williams was the
holding that 5 does not encompass political parties. The affirmance of that
holding, which is entitled to precedential weight, is instructive here.5
137 Contrary to the suggestion of Justice STEVENS, United States v. Board of
Comm'rs of Sheffield Ala., 435 U.S. 110, 98 S.Ct. 965, 55 L.Ed.2d 148 (1978),
does not support the contention that the Republican Party of Virginia is subject
to 5. See ante, at __-__, __. The precise question presented in that case was
whether 5 required the city of Sheffield, Alabama, to preclear a voting
change. The controversy arose because 14(c)(2) of the Act defines "political
subdivision" as a county or parish, "except that where registration for voting is
not conducted under the supervision of a county or parish, the term shall

include any other subdivision of a State which conducts registration for voting."
42 U.S.C. 1973l (c)(2) (1988 ed.). Notwithstanding the facts that the city was
not a county or parish and that it did not register voters, the Court concluded
that the city was subject to the preclearance requirement of 5. The essence of
Sheffield rationale was that because the entire State of Alabama was
designated for coverage pursuant to 4(b), the city of Sheffield was covered by
5 because it was a "political unit" (though not a "political subdivision")
within Alabama. 435 U.S., at 127-128, 98 S.Ct., at 977-978.
138 Whether or not Sheffield was correct as an original matter, it stands, at most, for
the proposition that a local unit of government, like a city, may be considered
the "State" for purposes of 5: "[Section] 5 . . . applies territorially and
includes political units like Sheffield whether or not they conduct voter
registration." Id., at 130, 98 S.Ct., at 978. In accordance with that proposition,
we have applied Sheffield to find coverage of other types of governmental
bodies under 5. See, e.g., Dougherty County, Georgia, Bd. of Ed. v. White,
439 U.S. 32, 45, 99 S.Ct. 368, 375-376, 58 L.Ed.2d 269 (1978) (finding 5
coverage of county school board under Sheffield and noting that "[i]f only those
governmental units with official electoral obligations actuate the preclearance
requirements of 5," the purposes of the Act could be undermined) (emphasis
added). But we have never applied Sheffield to find a nongovernmental
organization to be within the scope of 5. This is because Sheffield says little
about the question whether a group that does not operate in the name of the
State, or in the name of any governmental unit of a State, must comply with 5.
If anything, Sheffield suggests, with respect to th is case, that a political party is
not so obligated, because a political party is quite plainly neither a territorial
division of a State nor a governmental unit acting on behalf of any such
territory.
139 Undoubtedly, Sheffield speaks in broad terms when it states that 5 "applies to
all entities having power over any aspect of the electoral process within
designated jurisdictions, not only to counties or to whatever units of state
government perform the function of registering voters." 435 U.S., at 118, 98
S.Ct., at 972 (quoted ante, at __, __). That language must be viewed in the
context of the case, however. The holding of Sheffield applies only to
governmental bodies within a Statei.e., cities, counties, or municipalities, and
their agenciesnot to private groups with a partisan, or "political," agenda. See,
e.g, Sheffield, 435 U.S., at 117, 98 S.Ct., at 971-972 ("We first consider
whether Congress intended to exclude from 5 coverage political units, like
Sheffield, which have never conducted voter registration"); id., at 124, 98 S.Ct.,
at 975 ("Congress could not have intended 5's duties to apply only to those
cities that register voters); ibid. ("local political entities like Sheffield " can

impair minority votes in ways other than registration) (all emphases added). In
the legislative history Sheffield cites as support for its holding that "political
units" are covered regardless of whether they register voters, every entity
mentioned is a governmental one. See id., at 133-134, 98 S.Ct., at 980-981
(cities; school districts; city councils; precincts; county districts; and
municipalities). There is no basis in Sheffield and its progeny for covering
nongovernmental entities under 5.
140 Nonetheless, there is a critical similarity between this case and Sheffield. Just as
in Sheffield, the Court has inflated the phrase "State or political subdivision" to
implausible proportions. The dissent in Sheffield warned that "the logistical and
administrative problems inherent in reviewing all voting changes of all political
units strongly suggest that Congress placed limits on the preclearance
requirement." 435 U.S., at 147, 98 S.Ct., at 987 (STEVENS, J., dissenting).
Today, the Justices that support the judgment go much further and require all
"established" political parties, ante, at __, in designated States to preclear all
changes " 'affecting voting.' " Ante, at __. See also ante, at __ (BREYER, J.)
(suggesting that political groups that receive state law preferences in access to,
and placement on, the ballot must preclear "voting-related" changes). As the
Solicitor General candidly acknowledged, an "affecting-voting" or "votingrelated" rule cannot be limited to practices administered at conventions; it
logically extends to practices at all local mass meetings that precede
conventions. See Brief for United States as Amicus Curiae 20, n. 11. And
almost all activity that occurs at a nominating convention theoretically affects
voting; indeed, Justice STEVENS is unable to articulate any principled dividing
line between that which does and does not relate to voting at a convention. See
ante, at __. Thus, today's decision will increase exponentially the number of
preclearance requests, for even the most innocuous changes, that the Attorney
General must process within a statutorily limited amount of time. See 42 U.S.C.
1973c (1988 ed.) (60 days). "[I]t is certainly reasonable to believe that
Congress, having placed a strict time limit on the Attorney General's
consideration of submissions, also deliberately placed a limit on the number
and importance of the submissions themselves. This result was achieved by
restricting the reach of 5 to enactments of either the States themselves or their
political subdivisions." Sheffield, 435 U.S., at 148, 98 S.Ct., at 987 (STEVENS,
J., dissenting). That the inclusion of political parties under 5 demeans the
preclearance regime and so drastically increases its scope substantially
undermines the possibility that Congress intended parties to preclear.
141 Without so much as a nod to the explicit "State or political subdivision"
limitation in 5, Justice STEVENS substitutes the administrative regulation as
the analytical starting point in this case. See ante, at __. He apparently does so

because the Party failed to challenge the regulation and its counsel stated at oral
argument that 5 could sometimes encompass political parties. See ante, at __,
__, n. 32, __, n. 35. We did not take this case to review the District Court's
application of the regulation based on the facts of this case, but to decide
whether "[ ]5 of the Voting Rights Act of 1965 require[s] preclearance of a
political party's decision . . . to impose" a fee on conventiongoers. Juris.
Statement i. Consequently, appellants and the Government argued that the
Party was covered as a "State" under 5, see infra, n. 7, and the Party
maintained that 5 "requires action by a State or political subdivision." Brief
for Appellees 29. See also id., at 30 ("A political party is not a subdivision or
instrumentality of the government [under Sheffield ]"). Justice STEVENS and
Justice BREYER address the question presented, however, only in the course of
dismissing the dissents' arguments, and after they reach their respective
conclusions.
142 Furthermore, the tactical or legal error of a litigant cannot define the meaning
of a federal statute. See generally Sibron v. New York, 392 U.S. 40, 88 S.Ct.
1889, 20 L.Ed.2d 917 (1968). Our duty is to read the statute for ourselves.
While the regulation may "unambiguously provid[e] that . . . a political party"
must preclear, ante, at __, the statute does nothing of the sort, regardless of any
submission by the Party. Accordingly, I would decide this case on the ground
that the Republican Party of Virginia is not a "State" in the ordinary sense of
the word. Its rules and policies should therefore not be subject to 5.6
2
143 To the limited extent that Justice STEVENS and Justice BREYER address the
triggering language in 5, they fail to explain adequately how it is that the
Party could qualify as a "State or political subdivision" under the Act. By
referring to the White Primary cases, however, they reveal the only conceivable
basis in law for deeming the acts of the Party to be those of the State: the
doctrine of state action, as developed under the Fourteenth and Fifteenth
Amendments.7 In attempting to establish the relevance of that constitutional
doctrine to this statutory case, more by repetition than analysis, both opinions
suggest that the meaning of the statutory term "State" in 5 is necessarily
coterminous with the constitutional doctrine of state action. See, ante, at __, ____, __; ante, at __-__. I cannot agree.
144 The text of 5 does not support this constitutional gloss. There is a marked
contrast between the language of 5 and other federal statutes that we have
read to be coextensive with the constitutional doctrine of state action.
Specifically, 42 U.S.C. 1983 has been accorded a reach equivalent to that of

the Fourteenth Amendment. See Lugar v. Edmondson Oil Co., 457 U.S. 922,
934-935, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982); United States v. Price,
383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 1157, n. 7, 16 L.Ed.2d 267 (1966). That
statute provides a cause of action against "[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State" deprives any
citizen of federal constitutional or statutory rights. 42 U.S.C. 1983 (1982 ed.).
Section 1983's coverage reasonably extends beyond official enactments of the
State, since it expressly provides for coverage of persons who act under
authority of the State. If Congress intended to incorporate state action doctrine
into 5, one would expect 5 to read more like 1983. That is, it might
require preclearance "whenever a State or political subdivision or any person
acting under color of State law " seeks to enact voting changes. 8 But 5 does
not read like 1983.
145 The Voting Rights Act does, in fact, contain precisely such langua ge in a
different section. "[W]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23, 104 S.Ct.
296, 300, 78 L.Ed.2d 17 (1983) (internal quotation marks omitted). Section
11(a) of the Act provides that "[n]o person acting under color of law shall fail
or refuse to permit any person to vote who is entitled to vote under any
provision of [the Voting Rights Act and supplemental provisions] or is
otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and
report such person's vote." 42 U.S.C. 1973i(a) (1988 ed.) (emphasis added).
See also 1973i(b) ("No person, whether acting under color of law or
otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate,
threaten, or coerce any person for voting or attempting to vote") (emphasis
added). These provisions of the Act account for the very possibility that seems
to motivate the Court's strained interpretation of 5: that persons acting
individually or as part of a group, as opposed to States or political subdivisions
through their governmental bodies, will interfere with the right to vote.
146 I would not, therefore, accept the proposition that the constitutional doctrine of
state action defines the breadth of the statutory term "State." Given the clarity
of the word "State," together with the facts that Congress has traditionally
encompassed the broad category of state action by using the phrase "under
color of law," and has done so in other parts of this very Act, it is evident that
Congress did not mean to incorporate state action doctrine in 5.
3

147 Even indulging the argument that 5's coverage extends to all activity that
qualifies as state action for constitutional purposes, the Court's further
assumption that the actions of the Party in this case are fairly attributable to the
State is irreconcilable with our state action precedents.9
148 Justice STEVENS and Justice BREYER are correct to suggest that, under the
White Primary Casesmost notably Smith v. Allwright, 321 U.S. 649, 64 S.Ct.
757, 88 L.Ed. 987 (1944), and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97
L.Ed. 1152 (1953) political parties may sometimes be characterized as state
actors. Where they err, however, is in failing to recognize that the state action
principle of those cases "does not reach to all forms of private political
activity." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 1734,
56 L.Ed.2d 185 (1978). Rather, it "encompasses only state-regulated elections
or elections conducted by organizations which in practice produce 'the
uncontested choice of public officials.' " Ibid. (quoting Terry, supra, at 484, 73
S.Ct., at 820-821 (Clark, J., concurring)). Thus, the White Primary Cases do not
stand for the categorical rule that political parties are state actors, but only for
the proposition that, in limited factual circumstances, a particular political party
may be deemed an agent of the State.
149 This case is not governed by the state action principle enunciated in either
Smith or Terry. Unlike the primary in Smith, the Republican Party of Virginia's
convention was not a " 'state-regulated electio[n]' " to which the doctrine of
state action extends. Flagg Bros., Inc. v. Brooks, 436 U.S., at 158, 98 S.Ct., at
1734-1735. As an initial matter, it is important to recognize that Smith is on its
face limited to primary elections. That is, Smith requires a sufficient degree of
state regulation that "the party which is required to follow these legislative
directions [is made] an agency of the State in so far as it determines the
participants in a primary election." 321 U.S., at 663, 64 S.Ct., at 764-765
(emphasis added). In this case, the Party played no role in determining the
participants in an electionwhether primary, general, or special but required
persons who wished to attend its convention to pay a fee.
150 But, even assuming that the reasoning of Smith applies to conventions as well as
actual elections, there is still insufficient state regulation in this case to find that
"the party . . . [is] an agency of the State." Ibid. In Smith, the Party was
compelled by statute to hold a primary and was subject to myriad laws
governing the primary from start to finish. See id., at 653, n. 6, 662-663, 64
,S.Ct., at 759, n. 6, 764-765. By comparison, the amount and burden of the state
regulation in this case pale. Appellants point to only two provisions of the
Virginia Code that directly regulate nominating conventions. Section 24.2-510

imposes certain deadlines for the nomination of candidates by methods other

than a primary. Va.Code. Ann. 24.2-510 (1993). And once a candidate is
selected, 24.2-511 requires that the party chairman certify the candidate to the
State Board of Elections. Ibid. While 24.2-509 permits parties to choose their
own method of nomination, it is a purely permissive, not a mandatory,
provision; the Party is not "required to follow [this] legislative directio[n]."
Smith v. Allwright, 321 U.S., at 663, 64 S.Ct., at 765. There exists no "statutory
system for the selection of party nominees for inclusion on the general election
ballot," ibid.; there are only a few relatively minor statutory requirements. In
other words, when the Party holds its convention to select a candidate, it is
Party, not State, machinery that is put in gear. Cf. United States v. Classic, 313
U.S. 299, 318, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1941).10
151 Nor does coverage of the Party in this case "follo[w] directly from . . . Terry."
Ante, at __. The three separate opinions that constituted the majority in that
case contain little analysis of the state action question, and there was certainly
no theory of state action upon which the majority agreed. See Flagg Bros., Inc.
v. Brooks, 436 U.S., at 158, and n. 6, 98 S.Ct., at 1734, and n. 6. Consequently,
the holding in Terry has since been rationalized in light of two unique factual
predicates: (1) a candidate selection system that foreordained the winner of the
general election; and (2) the participation of the State in the intentional evasion
of the Constitution for the purpose of discrimination. See Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 625, 111 S.Ct. 2077, 2085, 114 L.Ed.2d
660 (1991) ("The Jaybird candidate was certain to win the Democratic primary
and the Democratic candidate was certain to win the general election"); Mobile
v. Bolden, 446 U.S. 55, 64, 100 S.Ct. 1490, 1498, 64 L.Ed.2d 47 (1980)
(explaining Terry on grounds that "[t]he candidates chosen in the Jaybird
primary . . . invariably won in the subsequent Democratic primary and in the
general election" and that "there was agreement that the State was involved in
the purposeful exclusion of Negroes from participation in the election
process"). The nub of Terry was that the Jaybird primary was the de facto
general election and that Texas consciously permitted it to serve as such; thus,
the exclusion of blacks from that event violated the Fifteenth Amendment.
152 This case involves neither of the operative premises of Terry. First, there is no
hint of state involvement in any purposeful evasion of the Constitution. No one
not the litigants, the Government, or the court belowhas so much as
suggested that the Party, in concert with the State, held a convention rather than
a primary in order to avoid the constitutional ban on race-based discrimination.
Nor has anyone implied that the Party had any intent to discriminate on the
basis of race when it decided to charge a fee to cover the costs of the
convention.11 Second, it simply cannot be maintained that exclusion from the

Party's 1994 convention was tantamount to exclusion from the general election.
The fact that the Party's 1994 nominee for the U.S. Senate lost the general
election is proof enough that the modern-day Republican Party in Virginia does
not have the stranglehold on the political process that the Democratic Party of
Texas had in the 1940's.12 In short, this case is a far cry from Terry, and it does
not fall within the bounds of state action delineated, albeit none too clearly, by
Terry. 13
153 In any event, subsequent decisions of this Court have "carefully defined" the
scope of Smith and Terry. Flagg Bros., Inc. v. Brooks, 436 U.S., at 158, 98
S.Ct., at 1734-1735. As we have refined our state action jurisprudence, the
White Primary Cases have come to stand for a relatively limited principle.
When political parties discharge functions "traditionally performed" by and "
'exclusively reserved to' " government, their actions are fairly attributable to the
State. Ibid. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95
S.Ct. 449, 454, 42 L.Ed.2d 477 (1974)). See Edmonson v. Leesville Concrete
Co., supra, at 621, 111 S.Ct., at 2083 (citing Terry as a case in which "the actor
is performing a traditional governmental function"); Lugar v. Edmondson Oil
Co., 457 U.S., at 939, 102 S.Ct., at 2754-2755 (citing Terry as illustration of
"the 'public function' test"). In Terry, the Jaybirds performed the traditional and
exclusive state function of conducting what was, in effect, the actual election.
154 In applying the public function test, "our holdings have made clear that the
relevant question is not simply whether a private group is serving a 'public
function.' " Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772,
73 L.Ed.2d 418 (1982) (citation omitted). Instead, "[w]e have held that the
question is whether the function performed has been 'traditionally the exclusive
prerogative of the State.' " Ibid. As Justice O'CONNOR explained the White
Primary Cases, "the government functions in these cases had one thing in
common: exclusivity." Edmonson v. Leesville Concrete Co., 500 U.S., at 640,
111 S.Ct., at 2093 (O'CONNOR, J., dissenting). Thus, in order to constitute
state action under the public function test, "private conduct must not only
comprise something that the government traditionally does, but something that
only the government traditionally does." Ibid.
155 The Party's selection of a candidate at the convention does not satisfy that test.
As we stated in Flagg Bros., Inc. v. Brooks, "the Constitution protects private
rights of association and advocacy with regard to the election of public
officials" and it is only "the conduct of the elections themselves [that] is an
exclusively public function." 436 U.S., at 158, 98 S.Ct., at 1734 (citing Terry ).
Thus, we have carefully distinguished the "conduct" of an election by the State
from the exercise of private political rights within that state-created framework.

Providing an orderly and fair process for the selection of public officers is a
classic exclusive state function. As the Constitution itself evidences, the
organization of the electoral process has been carried out by States since the
founding: "The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature
thereof." U.S. Const., Art. I, 4, cl. 1.
156 By contrast, convening the members of a political association in order to select
the person who can best represent and advance the group's goals is not, and
historically never has been, the province of the Statemuch less its exclusive
province. The selection of a party candidate is not the type of function, such as
eminent domain, that is "traditionally associated with sovereignty." Jackson v.
Metropolitan Edison Co., 419 U.S., at 353, 95 S.Ct., at 454. Cf. San Francisco
Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 545, 107
S.Ct. 2971, 2985, 97 L.Ed.2d 427 (1987) (holding that United States Olympic
Committee is not a state actor because "[n]either the conduct nor the
coordination of amateur sports has been a traditional governmental function");
Blum v. Yaretsky, 457 U.S. 991, 1011-1012, 102 S.Ct. 2777, 2789-2790, 73
L.Ed.2d 534 (1982) (holding that nursing home is not a state actor in part
because provision of nursing home services is not a traditional and exclusive
sovereign function); Edmonson v. Leesville Concrete Co., 500 U.S., at 638-641,
111 S.Ct., at 2092 (O'CONNOR, J., dissenting) (arguing that exercise of
peremptory strikes by litigants in state court is not a government function but a
matter of private choice). Though States often limit ballot a ccess to persons
who are official party nominees or who meet the requirements for independent
candidates, see, e.g., Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d
714 (1974), no State to my knowledge has ever held a convention in order to
designate a political party's nominee for public office. Indeed, it would subvert
the very purpose of democracy if the State possessed sole control over the
identification of candidates for elective office. I therefore fail to see how the
selection of a party's candidate for United States Senator is a public electoral
function. Cf. ante, at __. 14
157 In asking whether the Party acted under authority of the State in selecting its
nominee at the convention, the Court emphasizes that Virginia automatically
grants ballot access to the nominees of political parties, as defined by statute.
See ante, at __-__; ante, at __. It does not follow from that fact, however, that
"the Party exercised delegated state power when it certified its nominee for
automatic placement on Virginia's general election ballot." Ante, at __-__. The
formulation of rules for deciding which individuals enjoy sufficient public
support to warrant placement on the ballot, and the actual placement of those
candidates on the ballot, are indeed part of the traditional power of the States to

manage elections. See Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059,
2063, 119 L.Ed.2d 245 (1992). But these criteria are established exclusively
and definitively by the State of Virginianot the Partyin the Virginia Code.
See Va.Code Ann. 24.2-101, 24.2-511 (1993) (providing ballot access for
certified nominees of organizations of Virginia citizens that receive, in either of
the last two statewide general elections, at least 10 percent of the total votes
cast). Justice STEVENS is flatly wrong when he asserts that political parties in
Virginia "are effectively granted the power to enact their own qualifications for
placement of candidates on the ballot." Ante, at __. Also, it is the
Commonwealth of Virginia, not the Party itself, that has eliminated the Party's
need to present a petition in support of its candidate. Cf. ante, at __; Va.Code
Ann. 24.2-511(D) (1993) ("No further notice of candidacy or petition shall be
required of a candidate once the party chairman has certified his name to the
State Board [of Elections]"). The Party has no control over the qualifications
that determine "who may appear on the ballot." Ante, at __.
158 What the Party does determine is something entirely distinct from the rules for
ballot access, but which the Court fails to distinguish: the identity of the person
who shall be entitled under state law, as the Party's nominee, to placement on
the ballot by the State. In making that determination, the Party sets the
"qualifications" necessary for the selection of its candidate. Though the Court
conflates these two sets of criteria, the Party's standards for choosing its
candidate are wholly separate from the State's standards for ballot access, as set
forth in 24.2-101 and 24.2-511 of the Virginia Code. When the Party picks a
candidate according to its own partisan criteria, it does not act on behalf of the
State. Whatever the reason the Party chooses its nominee, "it is not the
government's reason." Edmonson v. Leesville Concrete Co., 500 U.S., at 638,
111 S.Ct., at 2092 (O'CONNOR, J., dissenting). In sum, the selection of a party
nominee "forms no part of the government's responsibility" in regulating an
election. Id., at 639, 111 S.Ct., at 2092-2093.
159 To be sure, the Party takes advantage of favorable state law when it certifies its
candida te for automatic placement on the ballot. See ante, at __-__, and n. 13;
ante, at __. Nevertheless, according to our state action cases, that is no basis for
treating the Party as the State. The State's conferral of benefits upon an entity
even so great a benefit as monopoly statusis insufficient to convert the entity
into a state actor. See Jackson v. Metropolitan Edison, 419 U.S., at 351-352, 95
S.Ct., at 453-454.15 If appellants believe that the State has created an unfair
electoral system by granting parties automatic access to the ballot, the proper
course of action is to bring suit against the appropriate state official and
challenge the ballot-access statute itself, see, e.g., Burdick v. Takushi, supra,
not to bring a preclearance suit against the Party and contest the registration

fee. If the State sought to enact or administer a law limiting ballot access to
only one group, as Justice STEVENS repeatedly hypothesizes, see, e.g., ante, at
__-__, state action would most likely exist, and that law would be subject to 5
and those provisions of the Constitution that impose restrictions on the States.
160 As for the point that Virginia allows the Party to choose its method of
nomination, that fact does not warrant a finding of state action either. We have
made it clear that an organization's "exercise of the choice allowed by state law
where the initiative comes from it and not from the State, does not make its
action in doing so 'state action'." Jackson v. Metropolitan Edison, supra, at 357,
95 S.Ct., at 457. Thus, when the Party exercised the choice afforded it by state
law and opted to hold a convention, that decision did not amount to state action.
The Party did not take the initiative to make that choice in order to serve the
public interest; in reality, the selection of a nomination method is an intensely
political matter, as recent intra-Party disputes over that choice well illustrate.16
Even if, as might be said here, "[t]he government erects the platform" upon
which a private group acts, the government "does not thereby become
responsible for all that occurs upon it." Edmonson v. Leesville Concrete Co.,
supra, at 632, 111 S.Ct., at 2089 (O'CONNOR, J., dissenting).17
161 The basis for today's decision, which subjects a political party to the
requirements of 5, can only be state action doctrine. But treating the Party as
an agent of the State in this case is not only wrong as a matter of statutory
interpretation, it also squarely contravenes our state action precedents. In short,
there is no legal justificationstatutory, constitutional, or otherwisefor the
conclusion that the Party is an entity governed by 5.18
B
162 Assuming arguendo that the Republican Party of Virginia is a "State" within
either the ordinary or the constitutional sense of the word, the question remains
whether the party has sought to administer a practice or procedure with respect
to "voting." Based on the statutory definition of "voting," I conclude that the
registration fee is not the type of election-related change with which the Act
concerns itself.
163 Section 14 of the Act defines voting as "all action necessary to make a vote
effective in any primary, special, or general election, including, but not limited
to . . . 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." 42 U.S.C. 1973l (c)(1) (1988 ed.). There is no mention of
conventions. Because 14 specifically enumerates the types of elections

covered, but does not include conventions, the most natural (and logical)
inference is that Congress did not intend to include voting at conventions within
the definition of "voting."
164 The omission of conventions from the list of elections covered in 14 is
especially revealing when compared to and contrasted with other federal
election laws. The Federal Election Campaign Act of 1971 defines "election" to
mean "(A) a general, special, primary, or runoff election; [and] (B) a
convention or caucus of a political party which has authority to nominate a
candidate." 86 Stat. 11, as amended, 2 U.S.C. 431(1) (emphasis added).
Similarly, 600 of Title 18 criminalizes the promising of employment in
exchange for political support "in connection with any general or special
election to any political office, or in connection with any primary election or
political convention or caucus held to select candidates for any political office."
18 U.S.C. 600 (emphasis added). See also 601 (defining "election" as, inter
alia, "a convention or caucus of a political party held to nominate a candidate")
(emphasis added). Congress obviously knows how to cover nominating
conventions when it wants to. After all, if there is a field in which Congress has
expertise, it is elections.
165 Justice STEVENS maintains that the fee relates to "voting" because, even
though it was not imposed at one of the three types of elections listed in 14, it
diminished the effectiveness of appellants' votes at the general election. See
ante, at __-__. As I explained in Holder v. Hall, 512 U.S. ----, 114 S.Ct. 2581,
129 L.Ed.2d 687 (1994), my view is that "as far as the Act is concerned, an
'effective' vote is merely one that has been cast and fairly counted." Id., at ----,
114 S.Ct., at 2605 (THOMAS, J., concurring). Appellants do not contend that
they were unable to submit a ballot in the general election or that their votes in
that election were not properly registered and counted. I thus would not strain
to hold, as does the majority, that appellants' votes at the general election
lacked effect simply because their personal favorite for the Republican
nomination was not on the ballot as the Party candidate.
166 Justice STEVENS also reasons that party primaries and conventions are
functionally indistinguishable. See ante, at __-__, __. Similarly, Justice
BREYER maintains that the convention in this case "resembles a primary about
as closely as one could imagine." Ante, at __. These assertions may or may not
be true as a matter of practical judgment (or imagination). One crucial
difference between primaries and conventions is that in the context of the
former, the Party often avails itself of a system erected, funded, and managed
by the State, whereas in the latter, it generally does not. Consequently, charging
the State with responsibility for voting changes that occur in a primary, where

there may be actual state involvement, makes more sense than holding the State
accountable for changes implemented at a party convention. Though Justice
Breyer lists several reasons why the Party's convention was like a primary, see
ante, at __, he fails to mention the critical factor of state involvement.
167 In any event, the question whether conventions ought to be governed by the Act
is, at bottom, a matter of policy. And, as far as I can discern from the face of
14, Congress made no policy determination in favor of regulating conventions
under the Act. Though one might think it more sensible to include conventions
in 14, "[t]he short answer is that Congress did not write the statute that way."
United States v. Naftalin, 441 U.S. 768, 773, 99 S.Ct. 2077, 2082, 60 L.Ed.2d
624 (1979). When we examine the legislative lines that Congress has drawn,
we generally do not hold Congress to exceedingly rigorous standards of logic.
See e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct.
2096, 2101, 124 L.Ed.2d 211 (1993) (reviewing statute for rational basis under
Equal Protection Clause and noting that " 'judicial intervention is generally
unwarranted no matter how unwisely we may think a political branch has acted'
") (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942-943, 59
L.Ed.2d 171 (1979)); International Primate Protection League v.
Administrators of Tulane Ed. Fund, 500 U.S. 72, 84-85, 111 S.Ct. 1700, 17071708, 114 L.Ed.2d 134 (1991) (enforcing, in statutory construction case, a
distinction based on a "mere technicality" because "Congress could rationally
have made such a distinction").
168 Justice STEVENS is right that "we have held that 5 applies to cases like
Whitley v. Williams, which involve candidacy requirements and qualifications."
Presley v. Etowah County Comm'n, 502 U.S., at 502, 112 S.Ct., at 828; see
ante, at __. However, those cases all involved qualifications for candidates
running in either primary or general elections that are clearly within the scope
of 14. See 502 U.S., at 502, 112 S.Ct., at 828. ("In Whitley v. Williams, there
were changes in the requirements for independent candidates running in general
elections"). See also NAACP v. Hampton County Election Comm'n, 470 U.S.
166, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985) (change in filing deadline to run
for school board in general election); Hadnott v. Amos, 394 U.S. 358, 89 S.Ct.
1101, 22 L.Ed.2d 336 (1969) (change in filing deadline for general election);
Dougherty County, Georgia, Bd. of Ed. v. White, 439 U.S. 32, 99 S.Ct. 368, 58
L.Ed.2d 269 (1978) (rule requiring school board members to take unpaid leave
of absence while campaigning for office, where plaintiff ran in primary and
general election). The cases holding that changes in the composition of the
electorate are covered by 5 likewise involve general elections. See Allen v.
State Bd. of Elections, 393 U.S., at 550, 569, 89 S.Ct., at 823-824 (change from
district to at-large, general election). Thus, we had no occasion in any of these

cases to question whether activity that occurs at a nominating convention, as

opposed to a primary, special, or general election, falls under the Act's
definition of "voting." Rather, the issue in these cases was whether the
contested change had a sufficiently "direct relation to, or impact on, voting,"
Presley v. Etowah County Comm'n, 502 U.S., at 506, 112 S.Ct., at 830, so as to
constitute a "practice or procedure with respect to voting" subject to
preclearance under 5. See, e.g., Allen v. State Bd. of Elections, supra, at 569,
89 S.Ct., at 833 (holding that "the enactment in each of these cases constitutes a
'voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting' within the meaning of 5"). Regardless of
whether Congress has ever "endorsed these broad constructions of 5," ante, at
__-__, they have no bearing on the meaning of 14.
169 Nor does the reference to the election of party officials bring the convention
within the ambit of 14, as Justice STEVENS and Justice BREYER argue. See
ante, at __; ante, at __. Section 14 does refer to "votes cast with respect to
candidates for public or party office." 42 U.S.C. 1973l (c)(1) (1988 ed.). But
the Court amputates that phrase from the rest of the sentence, which provides
that casting a vote at a "primary, special, or general election" for "candidates . .
. for party office" constitutes "voting" for purposes of the Act. See ibid. (voting
is "all action necessary to make a vote effective in any primary, special, or
general election, including, but not limited to . . . 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"). Under 14, then, voting
does extend to casting a ballot for a party officer, but only when that ballot is
cast at a primary, special, or general election. Since this is obvious on the face
of the statute, I see no need to resort to the legislative history of the Bingham
Amendment. Cf. ante, at __; ante, at __. Though Representative Bingham may
have had every intention of covering the activities of political parties under 5,
there is no evidence that he succeeded in transforming that intention into law.
170 Finally, as Justice STEVENS notes, 2 and 5 would appear to be designed to
work in tandem. See ante, at __-__. Nonetheless, there is a patent discrepancy
between the broad sweep of 2, which refers to "the political processes leading
to nomination or election," and the undeniably narrower definition of voting set
forth in 14, which is limited to the context of a "primary, special, or general
election." The incongruity appears to be a result of Congress' 1982 amendment
of 2 to expand its reach to pre-election political processes, see Pub.L. 97-205,
3, 96 Stat. 134, without making any concomitant amendments to either 5 or
14. As long as 5 contains the term "voting," and 14 in turn defines that
word, I think we must adhere to the specific definition provided in 14. We
cannot decline to apply that definition according to its terms simply because we

think it would be preferable to harmonize 2 and 5. If the 1982 amendment

produced an undesirable inconsistency between 2 and 5, Congress is free to
harmonize them.19
C
171 Were I otherwise willing to disregard the plain meaning of 5 and 14, there is
another factor counseling strongly against the Court's interpretation of the Act.
Holding that the Party's convention fee must be precleared by the Government
poses serious constitutional problems. Our standard practice is to avoid
constructions of a statute that create such difficulties. See Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568,
575, 108 S.Ct. 1392, 1397-1398, 99 L.Ed.2d 645 (1988). "This approach not
only reflects the prudential concern that constitutional issues not be needlessly
confronted, but also recognizes that Congress, like this Court, is bound by and
swears an oath to uphold the Constitution. The courts will therefore not lightly
assume that Congress intended to infringe constitutionally protected liberties."
Ibid.
172 Among the constitutional questions raised by this decision are ones relating to
freedom of political association. "The First Amendment protects political
association as well as political expression." Buckley v. Valeo, 424 U.S. 1, 15, 96
S.Ct. 612, 632, 46 L.Ed.2d 659 (1976). Political parties, and their supporters,
enjoy this constitutional right of political affiliation. Cousins v. Wigoda, 419
U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975). "[A]t the very heart
of the freedom of assembly and association," is "[t]he right of members of a
political party to gather in a . . . political convention in order to formulate
proposed programs and nominate candidates for political office." Id., at 491, 95
S.Ct., at 549 (REHNQUIST, J., concurring in judgment). A convention to
nominate a party candidate is perhaps the classic forum for individual
expression of political views and for association with like-minded persons for
the purpose of advancing those views.
173 We need not look beyond this case to "hypothetical," ante, at __, controversies
in order to identify substantial First Amendment concerns. As applied today,
5 burdens the rights of the Party and its members to freedom of political
association. The Party has represented in this Court that it decided to charge
each delegate a registration fee rather than to fund the convention with
contributions from a few major donors, in order to avoid undue influence from
a small group of contributors. See Brief for Appellees 45-46. Under our
precedents, the Party's choice of how to fund its statewide convention seems to
be a constitutionally protected one. "The Party's determination of the

boundaries of its own association, and of the structure which best allows it to
pursue its political goals, is protected by the Constitution." Tashjian v.
Republican Party of Conn., 479 U.S. 208, 224, 107 S.Ct. 544, 554, 93 L.Ed.2d
514 (1986). See also Democratic Party of United States v. Wisconsin ex rel. La
Follette, 450 U.S. 107, 124, 101 S.Ct. 1010, 1020, 67 L.Ed.2d 82 (1981) ("A
political party's choice among the various ways of determining the makeup of a
State's delegation to the party's national convention is protected by the
Constitution"). As the Court of Appeals for the District of Columbia Circuit has
explained, "a party's choice, as among various ways of governing itself, of the
one which seems best calculated to strengthen the party and advance its
interests, deserves the protection of the Constitution. . . . [T]here must be a right
not only to form political associations but to organize and direct them in the
way that will make them most effective." Ripon Society, Inc. v. National
Republican Party, 525 F.2d 567, 585 (1975) (en banc), cert. denied, 424 U.S.
933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976) (emphasis deleted). By requiring
the Party to seek approval from the Federal Government before it may
implement rules regarding the funding of nominating conventions, the Court
has burdened the Party's ability to institute the constitutionally protected choice
embodied in those rules.
174 Moreover, if the Attorney General or a federal court were to refuse to preclear
the registration fee, the Government would in effect be requiring the Party to
include persons who could not, or would not, pay the registration fee for its
convention. But, as we have held, "the freedom to associate for the 'common
advancement of political beliefs,' necessarily presupposes the freedom to
identify the people who constitute the association, and to limit the association
to those people only." Democratic Party of United States v. Wisconsin, 450
U.S., at 122, 101 S.Ct., at 1019 (citation omitted). See also Eu v. San Francisco
County Democratic Central Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 10201021, 103 L.Ed.2d 271 (1989). Section 5, under the Court's novel construction,
impinges upon that interest. Furthermore, the Court creates a classic prior
restraint on political expression, as Justice SCALIA cogently explains. See
ante, at __-__.
175 Legislative burdens on associational rights are subject to scrutiny under the
First Amendment. See Burdick v. Takushi, 504 U.S., at 433-434, 112 S.Ct., at
2063-2064 (le vel of scrutiny depends upon severity of the infringement); cf.
Eu, supra, at 225, 109 S.Ct., at 1021; Cousins, 419 U.S., at 489, 95 S.Ct., at
548-549. Severe interference with protected rights of political association "may
[only] be sustained if the [government] demonstrates a sufficiently important
interest and employs means closely drawn to avoid unnecessary abridgment of
associational freedoms." Buckley, 424 U.S., at 25, 96 S.Ct., at 638. Though

Justice STEVENS and Justice BREYER glibly dismiss this constitutional

inquiry, see ante, at __-__; ante, at __ ("[s]uch questions, we are satisfied, are
not so difficult"), it is not equally obvious to me that 5, as interpreted today,
would survive a First Amendment challenge.
176 Justice STEVENS is correct that, under the White Primary Cases, First
Amendment rights of political association cede to the guarantees of the
Fifteenth Amendment in certain circumstances. Ante, at __. The Court has held
that when state-approved exclusion from a political group is tantamount to
exclusion from the actual election, that exclusion violates the Fifteenth
Amendment. See Terry v. Adams, 345 U.S., at 469-470, 73 S.Ct., at 813-814.
However, where a person is refused membership in a political organization
without any involvement on the part of the State, and membership in the group
is not a precondition to participation in the ultimate choice of representatives,
there can logically be no state denial of the right to vote. In such a situation,
there is no conflict between the First and Fifteenth Amendments.
177 Exclusion of political parties from the coverage of 5 obviates the foregoing
First Amendment problems. Cf. Miller v. Johnson, 515 U.S. ----, ----, 115 S.Ct.
2475, ----, 132 L.Ed.2d 762 (1995) (rejecting possible reading of 5 because it
raised constitutional problems). By letting stand a construction of 5 that
encompasses political parties, however, the Court begets these weighty First
Amendment issues. Ironically, the Court generates these difficulties by
contorting, rather than giving the most natural meaning to, the text of 5.
II
178 I also disagree with the Court that 10 of the Voting Rights Act contains an
implicit cause of action for private suits against States and localities that impose
poll taxes upon voters. Section 10 states that:
179 "[T]he Attorney General is authorized and directed to institute forthwith in the
name of the United States such actions, including actions against States or
political subdivisions, for declaratory judgment or injunctive relief against the
enforcement of any requirement of the payment of a poll tax as a precondition
to voting, or substitute therefor enacted after November 1, 1964, as will be
necessary to implement the declaration of subsection (a) of this section and the
purposes of this section." 42 U.S.C. 1973h(b) (1988 ed.).
180 By its very terms, 10 authorizes a single person to sue for relief from poll
taxes: the Attorney General. The inescapable inference from this express grant

of litigating authority to the Attorney General is that no other person may bring
an action under 10. Though Justice STEVENS contends that implication of a
private cause of action is crucial to the enforcement of voting rights, ante, at ---, 10 itself indicates otherwise. Suits instituted by the Attorney General were
evidently all that Congress thought "necessary to implement . . . the purposes of
this section." Ibid. Section 10 explicitly entrusts to the Attorney General, and to
the Attorney General alone, the duty to seek relief from poll taxes under the
Act.
181 Although Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22
L.Ed.2d 1 (1969), held that 5 of the Voting Rights Act contains a private right
of action, Allen does not require the same result under 10. Section 5
affirmatively proclaims that " 'no person shall be denied the right to vote for
failure to comply with [a new state enactment covered by, but not approved
under, 5].' " Allen, 393 U.S., at 555, 89 S.Ct., at 826. It was "[a]nalysis of this
language" that "indicate[d] that appellants may seek a declaratory judgment that
a new state enactment is governed by 5." Ibid. A private cause of action was
thought necessary to effectuate "[t]he guarantee of 5 that no person shall be
denied the right to vote for failure to comply with an unapproved new
enactment subject to 5." Id., at 557, 89 S.Ct., at 827. 20 See also Cannon v.
University of Chicago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1954, 60 L.Ed.2d 560
(1979) ("[I]t was statutory language describing the special class to be benefited
by 5 . . . that persuaded the Court that private parties within that class were
implicitly authorized to seek a declaratory judgment against a covered State").
182 Unlike 5, 10 creates no statutory privilege in any particular class of persons
to be free of poll taxes. The only possible "guarantee" created by 10 is that the
Attorney General will challenge the enforcement of poll taxes on behalf of
those voters who reside in poll tax jurisdictions. What 10 does not do,
however, is actually forbid a State or political subdivision from administering
poll taxes. Nor does it declare that no person shall be required to pay a poll tax.
Rather, 10 merely provides, as a "declaration of policy" prefacing the
authorization for civil suits, that "the constitutional right of citizens to vote is
denied or abridged in some areas by the requirement of the payment of a poll
tax as a precondition to voting." 42 U.S.C. 1973h(a) (1988 ed.). It further
provides that when a jurisdiction administers a poll tax, the Attorney General
may prevent its enforcement by bringing suit in accordance with certain
procedural requirements, including a three-judge district court and direct appeal
to this Court. See 1973h(c). Section 10 creates no ban on the imposition of
poll taxes, whereas 5, Allen said, guaranteed that no person would be subject
to unapproved voting changes. Thus, 10 confers no rights upon individuals
and its remedial scheme is limited to suits by the Attorney General. Cf. ante, at

__-__.
183 I am unpersuaded by the maxim that Congress is presumed to legislate against
the backdrop of our "implied cause of action" jurisprudence. See Cannon v.
University of Chicago, supra, at 698-699, 99 S.Ct., at 1958-1959; ante, at __.
That maxim is relevant to but one of the three factors that were established for
determining the existence of private rights of action in Cort v. Ash, 422 U.S. 66,
95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and that were applied in Cannon. See
Cannon v. University of Chicago, supra, at 699, 99 S.Ct., at 1958-1959
(considering "contemporary legal context" of statute to assess the third Cort
factor, whether the legislative history reveals an intent to create a cause of
action). Though we may thus look to this presumption for guidance in
evaluating the history of a statute's enactment, "what must ultimately be
determined is whether Congress intended to create the private remedy
asserted." Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16,
100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). See also Touche Ross & Co. v.
Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488-2489, 61 L.Ed.2d 82
(1979). We do this by "begin[ning] with the language of the statute itself."
Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 16, 100 S.Ct., at 245.
In my view, 10which authorizes only the Attorney General to sue for relief
and creates no enforceable right in any person to be free from poll taxes
precludes the inference that Congress intended the availability of implied
causes of action under that section.21
184 Finally, the 1975 amendments to the Voting Rights Act do not justify the
judicial creation of a private cause of action under 10. See ante, at __-__.
Section 3 is a generalized section of the Act, providing three-judge district
courts with special authority in adjudicating Voting Rights Act claims. See 42
U.S.C. 1973a (1988 ed.). As appellants accurately state, 3 "explicitly
recognizes that private individuals can sue under the [Act]." Brief for
Appellants 41. Section 3 does not, however, identify any of the provisions
under which private plaintiffs may sue. The most logical deduction from the
inclusion of "aggrieved person" in 1973a is that Congress meant to address
those cases brought pursuant to the private right of action that this Court had
recognized as of 1975, i.e., suits under 5, as well as any rights of action that
we might recognize in the future. Section 14(e), which provides for attorney's
fees to "the prevailing party, other than the United States," is likewise a general
reference to private rights of action. Like 3, 14(e) fails to address the
availability of a private right to sue under 10. 1973l (e) (1988 ed.).22
185 At bottom, appellants complain that unless a private cause of action exists
under 10, private plaintiffs will be forced to challenge poll taxes by bringing

constitutional claims in single-judge district courts. This, they contend, "is

directly contrary to the special procedures for adjudicating poll tax claims
established by Congress in section 10." Brief for Appellants 38. It is appellants'
claim, however, that flatly contravenes 10. The only "special procedure" for
litigating poll tax challenges that Congress created in 10 is an action by the
Attorney General on behalf of the United States.
186 * * *
187 To conclude, I would decide this controversy on the ground that the Republican
Party of Virginia is not a "State or political subdivision" for purposes of 5.
This is true whether one invokes the ordinary meaning of the term "State" or
even, as the Court erroneously does, the state action theory of our constitutional
precedents. Even if the Party were a "State" or a state actor, the registration fee
does not relate to "voting," as defined by 14. Because the argument for the
applicability of 5 in this case fails at each step, I would not require the Party
to preclear its convention registration fee under 5. Nor would I imply a private
right of action under 10.
188 Today, the Court cuts 5 loose from its explicit textual moorings regarding
both the types of entities and the kinds of changes that it governs. Justice
BREYER, writing for three Members of the Court, does so without attempting
to define the limits of 5's applicability to political parties and their practices.
See ante, at __ ("We need not . . . determin[e] when party activities are, in
effect, substitutes for state nominating primaries"); ibid. ("Nor need we go
further to decide just which party nominating convention practices fall within
the scope of the Act"). Indeed, Justice BREYER expends much ink evading
inevitable questions about the Court's decision. See ante, at __-__ ("We go no
further in this case because , as the dissents indicate, First Amendment
questions about the extent to which the Federal Government, through
preclearance procedures, can regulate the workings of a political party
convention, are difficult ones, as are those about the limits imposed by the state
action cases") (citations omitted). This is not reassuring, and it will not do.
Eventually, the Court will be forced to come to grips with the untenable and
constitutionally-flawed interpretation of 5 that it has wrought in this case.
That encounter, which could easily have been averted today, will involve yet
another Voting Rights Act conundrum of our own making.23
189 When leveled against wholly-private partisan organizations with respect to their
internal affairs, 5's potential for use as an instrument of political harassment
should be obvious to all. I have no doubt that 5 was never intended for such
purposes. Rather, that section was aimed at preventing covered States from

intentionally and systematically evading the guarantees of the Voting Rights

Act by simply recasting their election laws. This suit, along with the ones
certain to follow, trivializes that goal. I respectfully dissent.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
L.Ed. 499.

As originally enacted, 5 provided:

"Sec. 5. Whenever a State or political subdivision with respect to which the
prohibitions set forth in section 4(a) 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, except that neither 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 section 2284 of title
28 of the United States Code and any appeal shall lie to the Supreme Court." 79
Stat. 437.

"No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const., Amdt. 14.

"Section 1. The right of citizens of the United States to vote in any primary or
other election for President or Vice President, for electors for President or Vice
President, or for Senator or Representative in Congress, shall not be denied or
abridged by the United States or any State by reason of failu re to pay any poll

tax or other tax.

"Section 2. The Congress shall have power to enforce this article by appropriate
legislation." U.S. Const., Amdt. 24.
4

A separate statutory claim alleging that the loan to appellant Morse violated
11(c) of the Act, 42 U.S.C. 1973i(c) (1988 ed.), was also remanded to the
single-judge District Court. Neither that claim nor either of the constitutional
claims is before us.

In order to obtain preclearance, the covered jurisdiction must demonstrate that

its new 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
[membership in a language minority group]," 42 U.S.C. 1973c. The fact that
such a showing could have been made, but was not, will not excuse the failure
to follow the statutory preclearance procedure. "Failure to obtain either judicial
or administrative preclearance 'renders the change unenforceable.' " Clark v.
Roemer, 500 U.S. 646, 652, 111 S.Ct. 2096, 2101, 114 L.Ed.2d 691 (1991)
(quoting Hathorn v. Lovorn, 457 U.S. 255, 269, 102 S.Ct. 2421, 2430, 72
L.Ed.2d 824 (1982)).

30 Fed.Reg. 9897 (1965). The others were Alabama, Alaska, Georgia,

Louisiana, Mississippi, and South Carolina. Ibid. In addition, portions of North
Carolina, Arizona, Hawaii, and Idaho were designated then or shortly
thereafter. See 30 Fed.Reg. 14505 (1965).

The regulation, which was adopted in 1981, provides:

"Political parties. Certain activities of political parties are subject to the
preclearance requirement of section 5. A change affecting voting effected by a
political party is subject to the preclearance requirement: (a) If the change
relates to a public electoral function of the party and (b) if the party is acting
under authority explicitly or implicitly granted by a covered jurisdiction or
political subunit subject to the preclearance requirement of section 5. For
example, changes with respect to the recruitment of party members, the
conduct of political campaigns, and the drafting of party platforms are not
subject to the preclearance requirement. Changes with respect to the conduct of
primary elections at which party nominees, delegates to party conventions, or
party officials are chosen are subject to the preclearance requirement of section
5. Where appropriate the term 'jurisdiction' (but not 'covered jurisdiction')
includes political parties." 28 CFR 51.7 (1995).

Virginia had 2,974,149 registered voters on January 1, 1994. See State Bd. of
Elections, Commonwealth of Virginia, Number of Precincts and Registered

Voters as of January 1, 1994, p. 4 (rev. Jan. 10, 1994). One-half of one percent
of that figure is 14,871.
9

Virginia law defines the term "political party" to include an organization of

Virginia citizens "which, at either of the two preceding statewide general
elections, received at least ten percent of the total vote cast for any statewide
office filled in that election." Va.Code Ann. 24.2-101 (1993). The Democratic
Party of Virginia and the Republican Party of Virginia are the only
organizations that satisfy that definition.
The definition has not been set in stone, however. Before 1991, the term
"political party" included only parties that polled 10 percent of the vote at the
last preceding statewide election. The Democratic Party, however, did not field
a candidate for the 1990 Senate race, and thus would have lost its automatic
ballot access for the next election. See 29 Council of State Governments, Book
of the States 260 (1992-1993 ed.). Rather than allow that outcome, the Virginia
Legislature amended the definition to qualify parties that polled the requisite
number of votes at either of the two preceding elections and provided that the
amendment would apply retroactively. See 1991 Va. Acts, ch. 12, 1(7).

10

Virginia law also allows the major political parties to substitute a new nominee
should the chosen nominee die, withdraw, or have his or her nomination set
aside. In that circumstance, other parties and independent candidates are also
permitted to make nominations, but the triggering event occurs only when a
party nominee cannot run. The statute thus ensures that the major parties will
always have a candidate on the ballot. See Va.Code Ann. 24.2-539, 24.2-540
(1993).

11

In some circumstances, a primary election is required unless the incumbent

office-holder from that party consents to a different method of nomination.
Va.Code Ann. 24.2-509(B) (1993). In its brief, the Party suggested that this
one exception to plenary party control over the method of nomination is
unconstitutional. See Brief for Appellees 31. While it appeared that the Party
might bring suit before the 1996 election to try to have the provision struck
down, see Whitley, Republicans Wrestle with Primary Issue, Richmond TimesDispatch, Oct. 25, 1995, p. B1, it relented after the Attorney General of
Virginia determined that the law was probably valid. See Va. Op. Atty. Gen.
(Nov. 22, 1995). In any event, because the incumbent United States Senator
was a Democrat in 1994, the Party was authorized to follow any method it
chose, so long as it named its candidate within the time period prescribed by the
statute.

12

The Secretary of the Party is required to certify the name of the nominee to the

State Board of Elections. If certification is not timely, however, the Board will
declare the chosen candidate to be the nominee and treat his or her name as if
certified. Va.Code Ann. 24.2-511 (1993).
13

Research has shown that placement at the top of a ballot often confers an
advantage to candidates so positioned. The classic study of the phenomenon is
H. Bain & D. Hecock, Ballot Position and Voter's Choice: The Arrangement of
Names on the Ballot and its Effect on the Voter (1957). See also Note,
California Ballot Position Statutes: An Unconstitutional Advantage to
Incumbents, 45 S. Cal. L.Rev. 365 (1972) (listing other studies); Note,
Constitutional Problems with Statutes Regulating Ballot Position, 23 Tulsa L.J.
123 (1987). Some studies have suggested that the effect of favorable placement
varies by type of election, visibility of the race, and even the use of voting
machines. See id., at 127. While the research is not conclusive, it is reasonable
to assume that candidates would prefer positions at the top of the ballot if given
a choice.

14

App. 24 (affidavit of David S. Johnson, Exec. Dir. of Republican Party of

Virginia 12).

15

According to the Party, 14,614 voters attended the 1994 convention. Ibid. A
total of 14,871 signatures were required to qualify as an independent candidate.
See n. 8, supra.

16

The Party argues that automatic ballot access is merely a "practical

accommodation to political reality" because the major parties have shown,
through their performance in previous elections, significant levels of voter
support. Brief for Appellees 32. According to the Party, the Party nominee
need not demonstrate personal support because he or she is credited with the
Party's showing. Id., at 33 (citing Weisburd, Candidate-Making and the
Constitution: Constitutional Restraints on and Protections of Party Nominating
Methods, 57 S. Cal. L.Rev. 213, 242 (1984)).
Such "crediting" does not answer the question why the Party nominee should
receive automatic ballot access. The fact that the Party has polled well in
previous elections does not logically entail any conclusion about the success of
its present candidate especially when that nominee is chosen at a convention
attended by limited numbers of Party members, rather than a primary.
Furthermore, ballot access for all other candidates is predicated on a showing of
individual electability. The Commonwealth certainly may choose to recognize
the Party's selection of a nominee, but such recognition is not mandated by any
right of the Party to demand placement on the ballot. Contrary to appellees,
cases such as Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24

(1968), Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554
(1971), and American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39
L.Ed.2d 744 (1974), establish only that political parties with at least a modicum
of public support must be provided a reasonable method of ballot access. They
do not establish that they are entitled to choose the method itself.
According to Justice THOMAS, the Party merely "takes advantage of favorable
state law" when it certifies its nominee for automatic placement on the ballot.
Post, at __. On that theory, the requirements of 28 CFR 51.7 (1995) would
not be met even if Virginia let only the two major parties place their candidates
on the ballot, and no one else. For the same reasons we give below, see infra, at
__-__, it is implausible to think the regulation was meant to apply only in oneparty States.
17

Justice THOMAS argues that our decision in Smith v. Allwright, 321 U.S. 649,
64 S.Ct. 757, 88 L.Ed. 987 (1944), depended on the State's regulation of the
Party's activities. Post, at __-__. While it is true that political parties in Smith
were subject to extensive regulation, nothing in our decision turned on that
factor. Only nine years before Smith, the Court had surveyed the same statutory
regime in Grovey v. Townsend, 295 U.S. 45, 50, 55 S.Ct. 622, 624-625, 79
L.Ed. 1292 (1935), and concluded that primary elections were private voluntary
activity. What changed was not the extent of state regulation, but the Court's
understanding, based on its intervening decision in United States v. Classic, 313
U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), that primaries were "a part of
the machinery for choosing officials." 321 U.S., at 664, 64 S.Ct., at 765. On
that basis, the Court overruled Grovey, even though the objectionable practice
there of excluding blacks from membership in the party was undertaken by a
private, unregulated entity.
The irrelevance of state regulation was confirmed in two cases decided after
Smith. Subsequent to Smith, South Carolina repealed all of its laws regulating
political primaries. The Democratic primary was thereafter conducted under
rules prescribed by the Democratic Party alone, which included rules restricting
the primary to white persons. The Fourth Circuit struck down those practices,
reasoning that "[s]tate law relating to the general election gives effect to what is
done in the primary and makes it just as much a part of the election machinery
of the state by which the people choose their officers as if it were regulated b y
law, as formerly." Rice v. Elmore, 165 F.2d 387, 390-391 (1947) (emphasis
added); accord Baskin v. Brown, 174 F.2d 391 (1949). The principal opinion in
Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), declared
that these cases were "in accord with the commands of the Fifteenth
Amendment and the laws passed pursuant to it." Id., at 466, 73 S.Ct., at 812
(opinion of Black, J.).

18

See Brief for United States as Amicus Curiae 11-13. Since 1981, when the
regulation was promulgated, there have been nearly 2,000 preclearance
submissions involving more than 16,000 proposed changes by political parties
in covered jurisdictions. See letter from Drew S. Days III, Solicitor General, to
William K. Suter, Clerk of the Supreme Court, dated Oct. 4, 1995 (lodged with
Clerk of this Court). Of particular note, on April 12, 1982, the Attorney
General precleared changes in the delegate selection plan adopted by the
Democratic Party of Virginia for its senatorial nominating convention. See
Brief for United States as Amicus Curiae, 12, n. 7; letter from Wm. Bradford
Reynolds, Assistant Attorney General, Civil Rights Div., to Russel Rosen,
Executive Director, Democratic Party of Va., dated Apr. 12, 1982 (lodged with
Clerk of this Court).
Political parties submitted changes in their rules for preclearance, and the
Department of Justice interposed objections to those changes, long before 1981.
For example: the Sumter County, Alabama, Democratic Executive Committee
submitted changes in 1974, and the Democratic Party of New York City
submitted changes in 1975. See Extension of the Voting Rights Act: Hearings
before the Subcommittee on Civil and Constitutional Rights of the House
Committee on the Judiciary, 97th Cong., 1st Sess., pt. 3, pp. 2246, 2265 (1981)
(appendix to letter from James P. Turner, Acting Ass't Attorney General, to
Rep. Edwards dated Apr. 9, 1981). Parties from New York, North Carolina, and
Alabama submitted changes in 1972. See D. Hunter, Federal Review of Voting
Changes 69, n. 30 (1974), reprinted in Hearings before the Subcommittee on
Civil and Constitutional Rights of the House Committee on the Judiciary, 94th
Cong., 1st Sess., 1541 (1975). In MacGuire v. Amos, 343 F.Supp. 119, 121
(M.D.Ala.1972), a three-judge court held that rules promulgated by the
Alabama Democratic and Republican Parties governing election of national
delegates required preclearance, despite the fact that the rules were not passed
by "the State's legislature or by a political subdivision of the State." As a result
of this decision, the Democratic Party of Alabama sought judicial preclearance
under 5. See Vance v. United States, Civ. Action No. 1529-72 (DDC Nov. 30,
1972), cited in Hunter Federal Review of Voting Changes, at 69, n. 30.

19

"The State has no connection with the delegate selection process or State Party's
rules and regulations other than allowing the rules and regulations to be filed
under Ga.Code Ann. 34-902. The purpose of such filing is merely to provide
a place for public inspection of the State Party's rules and regulations."
Williams v. Democratic Party of Georgia, Civ. Action No. 16286 (ND Ga.,
Apr. 6, 1972), pp. 4-5. In their motion to affirm in that case, the appellees noted
that the Secretary of State of Georgia was obligated to approve a political
party's rules applicable to the selection of candidates for public office by
convention but had no authority to review the rules and regulations

promulgated by the National Democratic Party governing the selection of

delegates to its national convention. Under the Attorney General's regulation
that is now in effect, preclearance of the National Democratic Party's Rule
change would not have been required if the District Court's interpretation of
Georgia law was correct. Our summary affirmance no doubt accepted that
Court's view of the relevant state law. Cf. Bishop v. Wood, 426 U.S. 341, 345346, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684 (1976).
20

See, e.g., Fortune v. Kings County Democratic County Comm., 598 F.Supp.
761, 764 (E.D.N.Y.1984) (requiring preclearance of change in voting
membership of county party executive committee, because those members
performed a "public electoral function" in filling vacancies in nominations for
state office).

21

We also note that a summary affirmance by this Court is a "rather slender reed"
on which to rest future decisions. Anderson v. Celebrezze, 460 U.S. 780, 784785, n. 5, 103 S.Ct. 1564, 1567-1568, 75 L.Ed.2d 547 (1983). "A summary
disposition affirms only the judgment of the court below, and no more may be
read into our action than was essential to sustain that judgment." Ibid. Either of
the two grounds discussed abovethe State's noninvolvement or the absence
of suitable administrative procedures for submissionwould have sufficed for
our affirmance.

22

Virginia created its first signature requirement for self-nominated candidates in

1936. See Va.Code Ann., Tit. 6, 154 (1936) (requiring petition signed by 250
qualified voters of the Commonwealth). Although the Commonwealth
maintains limited legislative history records, contemporary news accounts
reported that the provision was designed to "discourage cranks and persons
who for personal glorification take advantage of the very liberal terms of the
election code." New Qualification, The Richmond News Leader, Mar. 6, 1936,
p. 8. Then as now, political parties were exempt from the signature
requirement.

23

Quoting this very language, we have observed that candidates are nominated,
not elected. Chisom v. Roemer, 501 U.S. 380, 400, 111 S.Ct. 2354, 2366-2367,
115 L.Ed.2d 348 (1991). It is not anomalous, therefore, to hold that 5 applies
regardless of the means of nomination.

24

See Brief for Appellees 2; App. 32 (Republican Party Plan, Art. II, 22)
(defining "Party Canvass" as "a method of electing . . . delegates to
Conventions"); id., at 52 (Plan, Art. VIII, A, 3) (referring to "any election
by a Mass Meeting, Party Canvass, or Convention"); id., at 56 (Plan, Art. VIII,
H, 4); id., at 23 (affidavit of David S. Johnson, Executive Dir. of Republican

Party of Virginia, &Par; 5, 8). The call for the state convention itself, to which
appellants responded, stated: "The delegates and alternates shall be elected in
county and city Mass Meetings, Conventions, or Party Canvasses that shall be
held between March 1, 1994 and April 1, 1994." Id., at 62.
25

In fact, it did not. The 1981 House Report states that "whether a discriminatory
practice or procedure is of recent origin affects only the mechanism that
triggers relief, i.e., litigation or preclearance." H.R.Rep. No. 97-227, p. 28. That
statement indicates that the substantive standards for 2 and 5 violations are
the same, so long as the challenged practice represents a change from 1965
conditions, as the filing fee did here. Even more explicitly, the 1982 Senate
Report states that "a section 5 objection also follow[s] if a new voting
procedure itself so discriminates as to violate section 2." S.Rep. No. 97-417, p.
12, n. 31 (1982). The Report refers to voting procedures that dilute minority
voting strength. See id., at 10. We have recognized that measures undertaken by
both " 'State legislatures and political party committees ' " have had just such
dilutive effects, through devices that included " 'switching to at-large elections
where Negro voting strength is concentrated in particular election districts,
facilitating the consolidation of predominantly Negro and predominantly white
counties, and redrawing the lines of districts to divide concentrations of Negro
voting strength.' " Perkins v. Matthews, 400 U.S. 379, 389, 91 S.Ct. 431, 437,
27 L.Ed.2d 476 (1971) (quoting Hearings on Voting Rights Act Extension
before Subcommittee No. 5 of the House Committee on the Judiciary, 91st
Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein)) (emphasis added). See
also n. 27, infra. Contrary to Justice THOMAS, therefore, Congress has already
"harmonize[d]" 2 and 5, see post, at __; it is he who seeks to sunder them.

26

"To enforce the fifteenth amendment to the Constitution of the United States,
and for other purposes." 79 Stat. 437.

27

Congress was plainly aware of the power of political parties to carry out
discriminatory electoral practices as a supplement to or a substitute for voting
discrimination by government officials. Of course, the White Primary Cases
supplied the primary historical examples of such practices. See H.R.Rep. No.
439, 89th Cong., 1st Sess., 8 (1965). In addition, during the 1970 extension of
the Act, Congress heard testimony from the Director of the United States Civil
Rights Commission wherein he reiterated the influence political parties
continued to exercise over the electoral process in jurisdictions designated
under the Act. He testified that "[s]tate legislatures and political party
committees in Alabama and Mississippi have adopted laws or rules since the
passage of the act which have had the purpose or effect of diluting the votes of
newly enfranchised Negro voters." Hearings on Voting Rights Act Extension
before Subcommittee No. 5 of the House Committee on the Judiciary, 91st

Cong., 1st Sess., 17 (1969) (remarks of Mr. Glickstein), quoted in Perkins v.

Matthews, 400 U.S., at 389, 91 S.Ct., at 437. As examples, he introduced
evidence that in 1968 the Mississippi Democratic Party persisted in its "pattern
of exclusion of and discrimination against Negroes at precinct meetings, county
conventions and the State convention," id., at 18-19; that other officials
"withheld information from black party members about party precinct meetings
and conventions or have prevented them from participating fully," id., at 18, 43;
that the Alabama Democratic Party raised candidate filing fees for some of its
primaries tenfold after blacks began voting in large numbers, id., at 18, 27; and
that various party executive committees refused to count votes by blacks who
were not on the registration books, even if they were listed by the Federal
Examiner, id., at 46, engaged in discriminatory purges of black voters, id., at
48, and misled black candidates about the requirements for running in primary
elections or did not notify them of their failure to qualify until after deadlines
had passed, id., at 46-47.
In his testimony, Director Glickstein summarized the more extensive findings
about discriminatory electoral practices carried out by the established political
parties that were set forth in a report prepared by the United States Commission
on Civil Rights pursuant to congressional directive. See id., at 17-18. It
concluded that, three years after passage of the Act, "in some areas there has
been little or no progress in the entry and participation by Negroes in political
party affairsthe key to meaningful participation in the electoral process.
Some of the practices found are reminiscent of those which existed at an earlier
time during Reconstruction when fear of 'Negro government' gave rise to
intimidation and a number of election contrivances which finally led to
disenfranchisement of the Negro citizen." U.S. Commission on Civil Rights,
Political Participation 178 (May 1968).
28

The analogy is even closer, for the Jaybirds originally performed their
nominations in mass meetings. See 345 U.S., at 470, 73 S.Ct., at 813-814
(opinion of Frankfurter, J.); id., at 480, 73 S.Ct., at 818-819 (Clark, J.,
concurring). Nothing in any of the opinions suggestsand it would be perverse
to supposethat the Jaybirds' nominating activities only became
unconstitutional when they switched to balloting methods.

29

Justice THOMAS' claim that there has been no purposeful evasion of the
Constitution, see post, at __, is therefore irrelevant.

30

Appellees' theory is particularly unpersuasive in light of the fact that other parts
of the Voting Rights Act reach beyond the scope of 1 of the Fifteenth
Amendment. For example, the Act created a per se ban on literacy tests despite
this Court's decision that facially fair tests are not themselves unconstitutional.

Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3
L.Ed.2d 1072 (1959). We upheld this exercise of Congress' power under 2 of
the Amendment without overruling Lassiter. South Carolina v. Katzenbach,
383 U.S. 301, 334, 86 S.Ct. 803, 821-822, 15 L.Ed.2d 769 (1966); see also City
of Rome v. United States, 446 U.S. 156, 173-178, 100 S.Ct. 1548, 1559-1562,
64 L.Ed.2d 119 (1980). Congress again legislated beyond the reach of the
Fifteenth Amendment when it amended 2 of the Act to reject the "intent test"
propounded in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47
(1980). See S.Rep. No. 97-417, at 39-43.
31

Justice THOMAS contends that United States v. Classic is inapplicable

because Party nominating conventions are not " 'by law made an integral part
of the election machinery.' " Post, at __, n. 12. Moore v. Ogilvie, 394 U.S. 814,
89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), shows that this view is incorrect. The
Court in Moore held that the use of nominating petitions by independent
candidates was an " 'integral part of the election process,' " even though a
nominating petition obviously is not a primary, and that procedure plainly was
not "merged by law," post, at __, n. 12, into the State's election apparatus. See
394 U.S., at 818, 89 S.Ct., at 1495-1496 (citing Classic and Smith );
MacDougall v. Green, 335 U.S. 281, 288, 69 S.Ct. 1, 4, 93 L.Ed. 3 (1948)
(Douglas, J., dissenting). See also Hearings on H.R. 6400 before Subcommittee
No. 5 of the Ho use Committee on the Judiciary, 89th Cong., 1st Sess., 457
(1965) (statement of Rep. Bingham) ("It is clear that political party meetings,
councils, conventions, and referendums which lead to endorsement or selection
of candidates who will run in primary or general elections are, in most
instances, a vital part of the election process") (citing Smith and Terry ).

32

The Party makes passing reference to the idea in its brief, but the surrounding
argument makes clear that it only challenges application of the regulation to its
nominating activities. See Brief for Appellees 30-40. At oral argument,
moreover, the Party confirmed that it believed 5 could encompass the
activities of political parties. See Tr. Oral Arg. 28-30.

33

The statute defines "political subdivision" as a unit of government that registers

voters. 42 U.S.C. 1973l (c)(2) (1988 ed.).

34

Justice KENNEDY and Justice THOMAS nevertheless argue that Congress

should have borrowed language from 42 U.S.C. 1983 if it had intended 5 to
cover political parties. To bolster the point, they cite the "Prohibited acts"
provision of the Act, 11(a), which forbids any "person acting under color of
law" to interfere with the exercise of the right to vote. See 42 U.S.C. 1973i(a)
(1988 ed.). It is quite natural, however, that Congress would draw on 1983
when it sought to draft provisions that established individual liability for

persons who violate civil rights such as the right to vote. Section 1983 was
designed "to give a remedy to parties deprived of constitutional rights,
privileges and immunities by an official's abuse of his position." Monroe v.
Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Section
11(a) served exactly the same end, and therefore used similar language.
By contrast, Congress would not have looked to 1983 to supply language for
5 for the simple reason that 1983 does not reach the one type of entity
Congress most desired 5 to cover: the States themselves. See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
Justice THOMAS tries to avoid this problem by proposing a new, disjunctive
statutory phrase that is supposedly clearer than the present 5: " 'State or
political subdivision or any person acting under color of State law.' " Post, at __
(emphasis deleted). That concatenation of elements, however, appears in no
statute ever enacted, so it is unclear why it is preferable to language that had
already been construed by this Court. Furthermore, the "person acting under
color of state law" locution would be simultaneously too broad and too narrow
in that context. Section 5 focuses not on actions that individuals carry out, but
on voting practices that organizations enact or implement. Ordinary "persons"
do not create and implement voting practices. At the same time, the "plain
meaning" of the word "person" does not include political parties. While
"person" can be read more broadly, so can "State," as our precedents show.
Finally, if "person" reached non-natural entities, it would become partly
redundant with the word "State," which the dissent itself concedes encompasses
political units smaller than States. See Sheffield; Dougherty. In short, it is
hardly surprising that Congress opted for the language of the Constitution
rather than Justice THOMAS' concocted phrase.
35

Justice THOMAS is unwilling to accept our representation as to the reasoning

underlying our decision; he goes on at great length about our treatment of the
regulation, claiming that we "displac[e]" 5 with it, post, at __, n. 4; that we
"substitut[e]" it as the "analytical starting point" of the case, post, at __; and
that by considering it we somehow prejudge the question presented, post, at __.
None of these assertions is accurate. We begin our discussion of the case by
analyzing the regulation for the simple reason that the District Court rested its
decision on that ground, and the Party argues that the regulation supports its
position.

36

While Justice THOMAS relies heavily on Justice O'CONNOR's dissenting

opinion in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077,
114 L.Ed.2d 660 (1991), he overlooks the fact that the Court's holding in that
case makes it clear that state delegation of selection powers to two adversaries
instead of just one state actor does not preclude a finding of state action. The

Edmonson dissent argued that since peremptory strikes are available to both
opposing sides in a lawsuit, the State cannot simultaneously advance each
party's use. The dissent reasoned, therefore, that the State is "neutral" as to their
use and not " 'responsible' " for it. Id., at 643, 111 S.Ct., at 2095 (opinion of
O'CONNOR, J.). Virginia, on the other hand, grants automatic ballot access to
only two entities, and requires everyone else to comply with more onerous
requirements. As we have shown, Virginia gives a host of special privileges to
the major parties, including automatic access, preferential placement, choice of
nominating method, and the power to replace disqualified candidates. See
supra, at __-__, and nn. 10-13. It is perfectly natural, therefore, to hold that
Virginia seeks to advance the ends of both the major parties.
37

This conclusion is buttressed by the fact that in most covered jurisdictions party
candidates are selected in primary elections which are admittedly subject to the
preclearance requirement. Apparently, Alabama and Virginia are the only two
States covered by the Act that authorize the use of conventions to nominate
candidates for statewide office. See Council of State Governments, Book of the
States 217-218 (1994-1995 ed.).
We also note that States may remove themselves from the special provisions of
the Act, such as preclearance, by means of the bailout mechanisms provided in
4. Several States and political subdivisions initially designated for coverage
have successfully availed themselves of these procedures. See, e.g., S.Rep. No.
94-295, p. 35 (1975) (citing bailouts by Alaska; Wake County, North Carolina;
Elmore County, Idaho; and Apache, Navajo, and Coconino Counties, Arizona).

38

We recognize that there is a narrow category of exceptional cases in which

litigants "are permitted to challenge a statute not because their own rights are
violated, but because of a judicial prediction or assumption that the statute's
very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." Broadrick v. Oklahoma, 413
U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Because a claim of
facial overbreadth, if successful, is such "strong medicine," the doctrine "has
been employed by the Court sparingly and only as a last resort." Id., at 613, 93
S.Ct., at 2916. Specifically, as is the case with 5 of the Voting Rights Act,
"where conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well, judged by
the statute's plainly legitimate sweep." Id., at 615, 93 S.Ct., at 2918. The
breadth and importance of the legitimate sweep of 5 have been demonstrated
in a long and unbroken line of decisions applying its preclearance requirements
to covered jurisdictions. Even among political parties, it is undisputed that the
right of associative freedom would not provide a defense to many practices
condemned by 5. See Smith, 321 U.S., at 657, 64 S.Ct., at 761-762; Eu, 489

U.S., at 232, 109 S.Ct., at 1025. Cf. Tashjian v. Republican Party of Conn., 479
U.S. 208, 237, 107 S.Ct. 544, 560, 93 L.Ed.2d 514 (1986) (SCALIA, J.,
dissenting) (the State "may lawfully require that significant elements of the
democratic election process be democraticwhether the Party wants that or
not"). Presumably that is why appellees have not argued that 5 is invalid on
its face. Unlike Justice SCALIA, we do not believe that the possibility that
some future application of the statute might violate the First Amendment
justifies a departure from our "traditional rules governing constitutional
adjudication." 413 U.S., at 610, 93 S.Ct., at 2915.
We also disagree with his assertion that the requirement that the party preclear
a change in practices that imposes a registration fee on voters seeking to
participate in the nomination process is a "classic prior restraint." It imposes no
restraint at all on speech. Given the past history of discrimination that gave rise
to the preclearance remedy imposed by 5, the minimal burden on the right of
association implicated in this case is unquestionably justified.
39

Relying on statements in appellees' brief, rather than anything in the record,

Justice THOMAS suggests that the registration fee was intended to avoid the
danger that funding the convention with contributions from a few major donors
would enable a small group of contributors to exercise undue influence over the
candidate selection process. See post, at __. The argument is ironic, to say the
least, given the evidence that the supporters of the successful candidate for the
Party's nomination were willing to pay a delegate's registration fee in return for
that delegate's vote. See App. 7-8 (Complaint &Par; 21-34).

40

As originally enacted, 10 provided, in part:

"Sec. 10. (a) The Congress finds that the requirement of the payment of a poll
tax as a precondition to voting (i) precludes persons of limited means from
voting or imposes unreasonable financial hardship upon such persons as a
precondition to their exercise of the franchise, (ii) does not bear a reasonable
relationship to any legitimate State interest in the conduct of elections, and (iii)
in some areas has the purpose or effect of denying persons the right to vote
because of race or color. Upon the basis of these findings, Congress declares
that the constitutional right of citizens to vote is denied or abridged in some
areas by the requirement of the payment of a poll tax as a precondition to
voting.
"(b) In the exercise of the powers of Congress under section 5 of the fourteenth
amendment and section 2 of the fifteenth amendment, the Attorney General is
authorized and directed to institute forthwith in the name of the United States
such actions, including actions against States or political subdivisions, for

declaratory judgment or injunctive relief against the enforcement of any

requirement of the payment of a poll tax as a precondition to voting, or
substitute therefor enacted after November 1, 1964, as will be necessary to
implement the declaration of subsection (a) and the purposes of this section.
"(c) The district courts of the United States shall have jurisdiction of such
actions which shall be heard and determined by a court of three judges in
accordance with the provisions of section 2284 of title 28 of the United States
Code and any appeal shall lie to the Supreme Court. It shall be the duty of the
judges designated to hear the case to assign the case for hearing at the earliest
practicable date, to participate in the hearing and determination thereof, and to
cause the case to be in every way expedited." 79 Stat. 442.
41

In a footnote we observed that a private litigant could always bring suit under
the Fifteenth Amendment, but it was the inadequacy of just those suits for
securing the right to vote that prompted Congress to enact the statute. See 393
U.S., at 556, n. 21, 89 S.Ct., at 826, n. 21. Similarly with respect to a poll tax,
the fact that a suit might be brought directly under the Twenty-fourth
Amendment is not a reason for declining to find a statutory remedy.

42

Justice THOMAS attempts to distinguish 5 and 10 by arguing that the

former describes a "particular class of persons" to be benefited while the latter
does not. See post, at __. Justice THOMAS has it backwards. Section 5 states
generically that "no person shall be denied the right to vote" by unprecleared
changes. With far greater specificity, 10 states that poll taxes preclude
"persons of limited means" from voting or impose unreasonable financial
hardships on them and "in some areas ha[ve] the purpose or effect of denying
persons the right to vote because of race or color." 42 U.S.C. 1973h(a). It also
declares that "the constitutional right of citizens to vote is denied or abridged in
some areas by the requirement of the payment of a poll tax as a precondition to
voting." Ibid. Section 10 was clearly designed to benefit a limited class of
individuals.

43

We do not know, therefore, what Justice THOMAS means when he describes

5 as conferring a "statutory privilege" on a group of individuals. See post, at __.
If that phrase refers to a "right," then Justice THOMAS is flatly wrong, for
Allen itself denies reaching that question. The "guarantee of 5" to which Allen
refers is simply its holding that individuals can sue under 5. It is circular to
rely on that conclusion to distinguish 5 from 10, for the question presented
here is precisely whether this Court should apply the same logic to 10.

44

See 12(a) (prescribing sanctions for any deprivation or attempted deprivation

of "any right secured by section . . . 1973h [ 10]"), 42 U.S.C. 1973j(a) (1988

ed.) (emphasis added); 12(c) (prescribing sanctions for any conspiracy to

interfere with "any right secured by section . . . 1973h [ 10]"), 42 U.S.C.
1973j(c) (1988 ed.) (emphasis added).
45

The Senate Report went on to explain more generally: "In enacting remedial
legislation, Congress has regularly established a dual enforcement mechanism.
It has, on the one hand, given enforcement responsibility to a governmental
agency, and on the other, has also provided remedies to private persons acting
as a class or on their own behalf. The Committee concludes that it is sound
policy to authorize private remedies to assist the process of enforcing voting
rights." S.Rep. No. 94-295, at 40.

46

The Senate Report states: "Such a provision is appropriate in voting rights

cases because there, as in employment and public accomodations [sic] cases,
and other civil rights cases, Congress depends heavily upon private citizens to
enforce the fundamental rights involved. Fee awards are a necessary means of
enabling private citizens to vindicate these Federal rights." Ibid.

47

Appellees argue that any congr essional action taken in 1975 cannot support the
existence of an implied private right of action because this Court began
applying a stricter test for implied rights in Cort v. Ash, 422 U.S. 66, 95 S.Ct.
2080, 45 L.Ed.2d 26 (1975). We note that Cort was decided on June 17, 1975,
while the amendments to the Act were passed on August 6 of the same year.
Pub.L. 94-73, 89 Stat. 400. Seven weeksin the context of a bill that was first
proposed more than a year earlier is scarcely enough time for Congress to take
account of a change in the "contemporary legal context," especially one whose
nature and impact were the subject of some dispute at the time. See Cannon v.
University of Chicago, 441 U.S. 677, 739-743, 99 S.Ct. 1946, 1979-1982, 60
L.Ed.2d 560 (1979) (Powell, J., dissenting) (arguing that Cort relaxed the
standards for finding implied rights of action).

48

Appellees make one final argument that this case is moot because the 1994
convention has already been held. We note, however, that the Party has not
disavowed the practice of imposing a delegate filing fee for its nominating
convention, nor has it returned the $45 collected from appellant Morse. Indeed,
the Party has required fees as far back as 1964, and continues to assert that they
are necessary to finance its conventions. Like other cases challenging electoral
practices, therefore, this controversy is not moot because it is "capable of
repetition, yet evading review." Anderson v. Celebrezze, 460 U.S. 780, 784, n.
3, 103 S.Ct. 1564, 1567, n. 3, 75 L.Ed.2d 547 (1983); Storer v. Brown, 415
U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, n. 8, 39 L.Ed.2d 714 (1974); Moore v.
Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494-1495, 23 L.Ed.2d 1 (1969).

For brevity's sake, I cite each of today's opinions by the name of its author.

Justice BREYER apparently thinks that the First Amendment concerns raised
by appellees are minimal because many activities engaged in by a party at its
convention "are very likely not subject to preclearance." Ante, at __. Of course,
a mere "very likelihood" that failure to preclear a particular activity will not
result in nullification of the work of the convention is hardly sufficient to
induce a party organizer to take the chance. In any event, I find curious the
proposition that certain subsidiary determinations of the convention, such as "
'adoption of resolutions or platforms outlining the philosophy [of the party],' "
ibid., are not subject to Government oversight, whereas the determination of
who may attend the conventionupon which all else dependsis subject to
Government oversight. That is a good bargain for the tyrant.

Justice STEVENS makes much of the fact that the nominee selected by the
Republican Party of Virginia, by reason of the outcome of prior elections, had
automatically been given a place on the primary ballot, see ante, at __-__, but
he also explains his interpretation of 5 as "follow[ing] directly from our
decision in Terry [v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953)
]," ante, at __-__, a case in which the private party's nominating election "did
not involve the State's electoral apparatus in even the slightest way," ibid.
Justice BREYER alludes to Virginia's election laws, see ante, at __-__, but they
are plainly incidental to his analysis, see ante, at __-__. So o ne must assume
that what the Court today holds for parties whose nominees are automatically
listed is true for other parties as well.

The Court majority would respond, perhaps, that the phrase "State or political
subdivision" in 5 should be read to have the same meaning that it has in 2.
Of course it normally should. But if the majority fancies itself confronted with
the choice between departing from that general rule of construction (which, like
all rules of construction, can be overcome by other indication of statutory
intent, see, e.g., Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 86-88, 55
S.Ct. 50, 51-52, 79 L.Ed. 211 (1934)) and violating the inflexible principle that
courts should not needlessly interpret a statute to impose a prior restraint upon
private political activity, it is not debatable where the outcome must lie. Of
course, the imagined conflict between the rule and the principle disappears if
"State or political subdivision" is given its natural meaning in both 5 and 2,
subjecting political parties to neither.

There is thus no colorable argument in this case that the Party is a "political
subdivision" within the meaning of 14(c)(2); it is not a geographic territory,
such as a "county or parish," within a State. Appellants assert no such claim,
apparently in recognition of the weakness of the argument. If the Party falls

under 5, it could only be because it is a "State" or state actor, as appellants

and the United States maintain. See infra, at __.
2

Justice STEVENS has discovered five instances of such party submissions. See
ante, __, n. 18. Per year, however, at least several thousand preclearance
requests are sent to the Attorney General. See, e.g., Annual Report of the
Attorney General 161 (1982) ("During the year, over 2,800 submissions
involving more than 13,300 voting-related changes were submitted to the
Attorney General under Section 5"); Annual Report of the Attorney General
131 (1986) ("During the fiscal year 1986, over 3,700 submissions involving
more than 20,000 changes were submitted to the Attorney General under
Section 5").

See Presley v. Etowah County Comm'n, 502 U.S. 491, 112 S.Ct. 820, 117
L.Ed.2d 51 (1992); Clark v. Roemer, 500 U.S. 646, 111 S.Ct. 2096, 114
L.Ed.2d 691 (1991); Pleasant Grove v. United States, 479 U.S. 462, 107 S.Ct.
794, 93 L.Ed.2d 866 (1987); McCain v. Lybrand, 465 U.S. 236, 104 S.Ct. 1037,
79 L.Ed.2d 271 (1984); NAACP v. Hampton County Election Comm'n, 470
U.S. 166, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985); City of Lockhart v. United
States, 460 U.S. 125, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983); Port Arthur v.
United States, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982); Hathorn v.
Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982); Blanding v.
DuBose, 454 U.S. 393, 102 S.Ct. 715, 70 L.Ed.2d 576 (1982); McDaniel v.
Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981); Rome v. United
States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Dougherty
County, Georgia, Bd. of Ed. v. White, 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d
269 (1978); Berry v. Doles, 438 U.S. 190, 98 S.Ct. 2692, 57 L.Ed.2d 693
(1978); United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 98 S.Ct. 965,
55 L.Ed.2d 148 (1978); Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53
L.Ed.2d 506 (1977); United States v. Board of Supervisors of Warren Cty., 429
U.S. 642, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); Beer v. United States, 425 U.S.
130, 96 S.Ct. 1357, 47 L.Ed.2d 62 9 (1976); Richmond v. United States, 422
U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); Connor v. Waller, 421 U.S.
656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975); Georgia v. United States, 411 U.S.
526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Perkins v. Matthews, 400 U.S. 379,
91 S.Ct. 431, 27 L.Ed.2d 476 (1971); Hadnott v. Amos, 394 U.S. 358, 89 S.Ct.
1101, 22 L.Ed.2d 336 (1969); Allen v. State Bd. of Elections, 393 U.S. 544, 89
S.Ct. 817, 22 L.Ed.2d 1 (1969). See also Arizona v. Reno, 887 F.Supp.
318(DDC), app. dism'd, 516 U.S. ----, 116 S.Ct. 1037, --- L.Ed.2d ---- (1996).
Over the last 30 years, we have entertained only two 5 cases brought against
political parties. We vacated one when it became moot on appeal, State
Democratic Executive Committee of Alabama v. Hawthorne, 499 U.S. 933, 111

S.Ct. 1408, 113 L.Ed.2d 440 (1991), and summarily affirmed the denial of
relief in the other. Williams v. Democratic Party of Georgia, Civ. Action No.
16286 (ND Ga., Apr. 6, 1972), aff'd, 409 U.S. 809, 93 S.Ct. 67, 34 L.Ed.2d 70
(1972).
4

Justice STEVENS contends that the foregoing discussion is "surprising

because [his] explanation of why 5 applies to political parties places no
reliance on principles of administrative deference." Ante, at __. By
presupposing that the regulation is a valid interpretation of 5, however,
Justice STEVENS simply assumes that 5 could cover political parties. Thus,
he does not just defer to the Attorney General's reading of 5, but displaces 5
with the regulation. Cf. Presley v. Etowah County Comm'n, 502 U.S., at 508,
112 S.Ct., at 831 ("Deference does not mean acquiescence"). For the reasons
given above, I would not do the same.

Justice STEVENS' attempt to distinguish, and even to draw support from,

Williams is unpersuasive. See ante, at __-__. The fact that Virginia grants ballot
access to the Party's nominee in this case does not establish state involvement in
the nominating convention. In holding its convention, the Party exercised no
state-delegated power. See infra, at __-__. Further, Justice STEVENS
mischaracterizes Williams when he declares that the "only" reason that the
District Court did not require preclearance was because no adequate
administrative procedures existed; the Williams court noted that the lack of
such procedures buttressed its premise that 5 applies only to States and
political subdivisions. Civ. Action No. 16286, at 4. Finally, 28 CFR 51.23(b)
(1995), which now provides that party officials may submit rules for
preclearance, cannot change the language of 5, which is still limited, as it was
at the time Williams was decided, to States and political subdivisions.

Justice STEVENS rejects this reading of 5 as being "at war with the intent of
Congress and with our settled interpretation of the Act." Ante, at __. First, as
explained supra, at __-__ and n. 3, 1225-1226, there is no precedent for the
application of 5 to nongovernmental units; the issue is anything but "settled."
Justice STEVENS errs when he states that "[t]he operative test, we have stated
repeatedly, is whether a political party exercises power over the electoral
process." Ante, at __. We have never made any such statement, because we
have never before addressed the question whether political parties are subject to
5. Second, Justice STEVENS cites only legislative history as evidence of
Congress' "unambiguously expressed . . . purpose" that 5 should apply to the
"candidate selection process." Ante, at __. Section 5, of course, could apply in
the context of the "candidate selection process," if the State itself enacted or
sought to administer the contested change. But Justice STEVENS points to
nothing in 5, or even in that statute's legislative history, that expresses any

intent to include political parties within the meaning of "State or political

subdivision." Finally, it is perfectly reasonable to suppose that the term "State"
has a different meaning in 5 than it does in the Fifteenth Amendment. Cf.
ante, at __-__. This Court has affirmed in other contexts that statutory language
does not necessarily mean the same thing as parallel language in the
Constitution. For instance, "[a]lthough the language of [28 U.S.C. 1331 (1982
ed.) ] parallels that of the 'Arising Under' Clause of Article III, this Court never
has held that statutory 'arising under' jurisdiction is identical to Art. III 'arising
under' jurisdiction." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480,
494, 103 S.Ct. 1962, 1972, 76 L.Ed.2d 81 (1983). Here, the ordinary-meaning
rule of statutory construction, which governs the interpretation of 5, explains
why political parties could be covered under the Fifteenth Amendment, but not
under 5: the common sense definition of "State" is very different from the
complex doctrine of state action that this Court has developed as a matter of
constitutional law.
7

In fact, the Government identified our state action cases under the Fifteenth
Amendment as the justification for the Attorney General's regulation on which
Justice STEVENS bases his judgment. Brief for United States as Amicus
Curiae 10-11. Review of the regulation confirms that it is premised upon the
notion that the Party's activities can sometimes be treated as those of the State.
See 28 CFR 51.7 (1995) (referring to "public electoral function" carried out
by parties and to parties "acting under authority explicitly or implicitly granted
by a covered jurisdiction"). Likewise, appellants relied solely on state action
theory as their rationale for bringing the Party within 5. See Brief for
Appellants 14-20, 24-25.

Justice STEVENS argues that this example does not by its terms cover political
parties. See ante, at __, n. 34. The criticism is beside the point, however,
because the example is not intended to demonstrate how Congress could have
covered political parties as such; that, of course, could be easily achieved by
inserting "political parties" in the opening clause of 5. Instead, the example is
meant to emphasize that there is no textual basis for the conclusion that
Congress imported the constitutional doctrine of state action into 5. Because
there is no evidence that Congress did so, Justice STEVENS, as well as Justice
BREYER, is wrong to use state action doctrine as license to read "State" to
mean "political party."

Although Justice STEVENS and Justice BREYER never expressly

acknowledge their reliance on state action theory, each finds it necessary to
look to that case law for support. See ante, at __, __-__, __; ante, at __-__.
Indeed, Justice STEVENS' discussion of whether the Party acted under the
Commonwealth of Virginia's authority in holding the convention is virtually

indistinguishable from state action analysis. See ante, at __-__.

10

While Justice STEVENS believes that the decision in Smith did not depend at
all upon state regulation of primaries, ante, at __, and n. 17, Smith is by its
terms premised upon the existence of a "statutory system." See Smith v.
Allwright 321 U.S. 649, 662-664, 64 S.Ct. 757, 764-766, 88 L.Ed. 987 (1944)
(detailing state law relating to primaries and concluding that the "statutory
system" in Texas for the selection of party nominees "makes the party which is
required to follow these legislative directions an agency of the State"). See also
Terry v. Adams, 345 U.S. 461, 462, 73 S.Ct. 809, 810, 97 L.Ed. 1152 (1953)
("While no state law directed [the] exclusion [of blacks from the party's
primary], our decision [in Smith ] pointed out that many party activities were
subject to considerable statutory control").

11

It is true, as Justice STEVENS states, that potential for discrimination is the

prevailing test for preclearance under 5. See ante, at __-__, and n. 29. But
that is a different question from whether the Party's conduct rises to the level of
state action under Terry, the issue I address here.

12

Justice STEVENS claims that, under United States v. Classic, 313 U.S. 299, 61
S.Ct. 1031, 85 L.Ed. 1368 (1941), "[v]oting at the nomination stage is
protected regardless of whether it 'invariably, sometimes, or never determines
the ultimate choice of the representative.' " Ante, at __. Classic did not so hold.
Even assuming that Classic applies to conventions as well as primaries, that
case merely stated, in dicta, that "where the primary is by law made an integral
part of the election machinery," 313 U.S., at 318, 61 S.Ct., at 1039, the right to
participate in a primary does not turn upon the dispositive nature of the
primary. Party nominating conventions in Virginia have not been merged by
law with the election machinery of the State. See supra, at __-__. Contrary to
what Justice STEVENS says, ante, at __, n. 31, the petition procedure at issue
in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), was by
law made a part of the state's electoral system: it was expressly mandated by
state statute. See id., at 815, 89 S.Ct., at 1494 (citing Ill.Rev.Stat., c. 46, 10-3
(1967)).

13

In light of Smith and Terry, Justice BREYER concludes that the word "State"
does not "automatically place a party's all-white evasive maneuvers beyond [
5's] reach." Ante, at __ (emphasis deleted). That, however, is not this case. As
discussed above, there is no basis in fact for inferring that the Party charged the
fee as a strategy for producing an " 'all-white' convention process" or as a
method of evading the Constitution. Ibid. And the record in no way suggests
that the three law students challenging the fee are black.

14

Contrary to the representation of Justice STEVENS, ante, at __, the Party

explicitly denies that it engaged in any public electoral function. See Brief for
Appellees 30 ("The Virginia statutes cited by the law students do not show the
exercise of public electoral functions . . . by the Party").

15

On Justice STEVENS' and Justice BREYER's view of the relationship between

automatic ballot placement and state action, many private corporations in
Virginia would qualify as state actors. Virginia corporations are, like most
corporations, substantially advantaged by various provisions of state law. See,
e.g., Va.Code Ann. 13.1-692.1, 13.1-870.1 (1993) (creating a limitation on
liability for corporate officers and directors). I doubt seriously, however, that
even the Members of today's majority would hold that when a corporation takes
the necessary steps to invoke these statutory benefits, it thereby becomes a state
actor; yet this is the logical result of the suggestion that the Party is a state actor
because Virginia automatically places its nominee on the ballot. Such a
conclusion would run headfirst into our case law, in which we have stated
unequivocally that privately-owned corporations, absent some symbiotic
relationship with the State, are purely private actors. See Jackson v.
Metropolitan Edison, 419 U.S., at 357-358, 95 S.Ct., at 456-457; Blum v.
Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982).

16

See Editorial Richmond Times, Primarily Primaries, Dispatch, Nov. 28, 1995,
p. A-8 (describing contentious debate between supporters of the incumbent
Virginia Senator and those of his Republican challenger over nomination
methods and noting that "[i]t is only human for sides to favor the means
convention or primaryperceived to give their candidate an edge").

17

With respect to Congress' power to prohibit discrimination in party affairs, see

ante, at __-__, it is enough for purposes of this case to note that it is wellestablished that Congress may not regulate purely private behavior pursuant to
its enforcement power under the Fourteenth and Fifteenth Amendments. See
James v. Bowman, 190 U.S. 127, 139, 23 S.Ct. 678, 680, 47 L.Ed. 979 (1903)
("[A] statute which purports to punish purely individual action cannot be
sustained as an appropriate exercise of the power conferred by the Fifteenth
Amendment upon Congress to prevent action by the State through some one or
more of its official representatives"); Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18,
27 L.Ed. 835 (1883).

18

Indeed, Justice BREYER's concurring opinion is founded on little more than

sheer disbelief that Congress passed a statute that does not go as far in terms of
coverage as he thinks, in light of the history of voting rights, the statute should.
See ante, at __ ("How is it possible that a Congress, knowing this obvious
history, would have wanted to enact a 'voting rights' law containing a major and

obvious loophole . . . ?"). We are not free to construe statutes by wondering

about what Congress "would have wanted to enact." There are myriad reasons
why measures that "a Congress"I assume Justice BREYER means a majority
of the members of that institutionmight "wan[t] to enact" never become law.
We must look to the extant text of the statute and see what Congress has in fact,
and not in theory, enacted.
In contrast to Justice BREYER's imaginary statute, which covers all actors that
might discriminate in the electoral process, 5 is in reality limited to States and
political subdivisions. Thus, the question in this case is not whether we should
"read this Act as excluding all political party activity . . . [and] ope[n] a
loophole in the statute," ante, at __, but whether we should read 5 to include
such activity in the first place. If there is any "loophole" in 5 here, it results
from the fact that Congress simply did not cover political parties in the
preclearance provision. Justice BREYER's argument thus boils down to the
curious notion that when Congress passes a statute that covers certain actors, it
thereby establishes a "loophole" for all others. Moreover, while Congress was
surely aware of the history of discrimination in the political process when it
passed the Act, I presume it was also cognizant of the prohibitions of the First
Amendment, see infra, at __-__, as well as the constraints on its legislative
powers under the Fifteenth Amendment, not the least of which is the state
action requirement. See n. 14, supra. Both of these constitutional limits on
Congress' powers are sufficient reason to curb speculation and to think it
"possible" (if the lack of textual evidence were not enough) that Congress did
not intend to cover political parties under 5.
19

Legislative history is insufficient to bridge this gap in coverage that is apparent

on the face of the statutes, as Justice STEVENS would have it. See ante, at __,
n. 25. In any case, the legislative history cited by Justice STEVENS is wholly
nonresponsive to the issue of which types of entities must submit their rules for
preclearance under 5. That is, the legislative history discusses certain kinds of
changes that must be precleared, without suggesting that the entities that must
comply with the preclearance requirement are anything other than States and
political subdivisions. The part of the Senate Report cited by Justice STEVENS
addresses the need to preclear statewide redistricting plans. Reapportionment
plans, of course, are usually enacted by state or local legislative bodies. See,
e.g., Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976)
(reapportionment plan adopted by city council). The passage in the House
Report states that a voting practice that is outside the scope of the preclearance
provision (either because it was in existence before 1965 or is implemented in a
noncovered jurisdiction) may nonetheless be challenged in a lawsuit under 2;
hence the distinction between preclearance and litigation. The Report thus
supports precisely the opposite proposition for which Justice STEVENS cites

it: It expressly states that not every action that can be brought under 2 falls
within the scope of 5.
20

This language makes clear that the "guarantee" described in Allen was not, as
Justice STEVENS asserts, "simply its holding that individuals can sue under
5." Ante, at __, n. 43.

21

Nor do I think that we should imply a cause of action under 10 simply

because we have heard and decided challenges by private plaintiffs under 2.
See ante, at __; ante, at __. We ought not base our decision in this case on the
fact that we have inadvertently, and perhaps incorrectly, allowed private suits to
proceed under other sections of the Act.

22

It does not follow from Congress' technical amendment of 10 in 1975, which

Justice BREYER takes as an indication "that 10 remained an important civil
rights provision," ante, at __, that we should imply a cause of action
thereunder. A statute outlawing a class of voting practices and authorizing the
Attorney General of the United States to sue jurisdictions that engage in such
practices is surely an "important" provision, even if not privately enforceable.

23

Apart from the preclearance issues that the Court leaves unresolved, the Court's
judgment raises additional questions under the Voting Rights Act, since the
phrase "State or political subdivision" is used in several other key provisions.
For instance, may political parties bring a declaratory judgment action under
5 as an alternative to preclearance? See 42 U.S.C. 1973c (1988 ed.). May
political parties bring a "bailout suit" for exclusion from the category of
covered jurisdictions? See id. 1973b(a). Are political parties subject to suit
under 2? See id. 1973(a). Can a three-judge district court authorize the
appointment of federal examiners to monitor a political party's activities during
the pendency of, and as part of a final judgment in, a voting rights suit? See id.
1973a(a). Quite apparently, the Court has not stopped to consider the
ramifications of its decision.