Young v. Fordice

• Decision Date: 31 March 1997
• Docket Number: 952031
• Citation: 117 S.Ct. 1228,137 L.Ed.2d 448,520 U.S. 273
• Parties: Thomas YOUNG, et al., Appellants, v. Kirk FORDICE et al
• Court: U.S. Supreme Court

520 U.S. 273

117 S.Ct. 1228

137 L.Ed.2d 448

Thomas YOUNG, et al., Appellants,

v Kirk FORDICE et al.

No. 95-2031.

Supreme Court of the United States

Argued Jan. 6, 1997.

Decided March 31, 1997.

Syllabus ^*

The National Voter Registration Act of 1993 (NVRA) requires States to provide simplified systems for registering to vote in federal elections, including a system for voter registration on a driver's license application. Beginning on January 1, 1995, Mississippi attempted to comply with the NVRA, attempting to replace its "Old System'' of registration with a "Provisional Plan'' that simplified registration procedures for both federal and state elections. The United States Attorney General precleared the Provisional Plan under §5 of the Voting Rights Act of 1965(VRA), which forbids States with a specified history of voting discrimination from making changes in voting "practices or procedures'' that have the purpose or effect of denying or abridging the right to vote on account of race or color. However, a week before the Plan was precleared, the state legislature tabled legislation needed to make the changes effective for state elections. On February 10, 1995, the State abandoned the Provisional Plan in favor of a "New System,'' which uses the Provisional Plan for federal election registration only and the Old System for both state and federal election registration. The State made no further preclearance submissions. In this suit, appellants claim that the State and its officials violated §5 by implementing changes in its registration system without preclearance. A three-judge District Court granted the State summary judgment, holding that the differences in the New System and Provisional Plan were attributable to the State's attempt to correct a misapplication of state law, and, thus, were not changes subject to preclearance; and that the State had precleared all the changes that the New System made in the Old when the Attorney General precleared the changes needed to implement the NVRA.

Held: Mississippi has not precleared, and must preclear, the "practices and procedures'' that it sought to administer on and after February 10, 1995. Pp. _-__.

(a) Several circumstances, taken together, lead to the conclusion that the Provisional Plan, although precleared by the Attorney General, was not "in force or effect'' under §5 and, hence, did not become part of the baseline against which to judge whether future change occurred. Those seeking to administer the Plan did not intend to administer an unlawful plan, and they abandoned the Plan as soon as it became clear that the legislature would not pass the laws needed to make it lawful. Moreover, all these events took place within a few weeks: The Plan was used for only 41 days and by only a third of the State's voter registration officials, and the State held no elections prior to its abandonment of the Plan, nor were any elections imminent. Pp. _-__.

(b) Nonetheless, the New System included changes that must be precleared because it contains "practices and procedures'' that are significantly different from the Old System. Minor changes, as well as major, require preclearance. See Allen v. State Bd. of Elections, 393 U.S. 544, 566-569, 89 S.Ct. 817, 832-834, 22 L.Ed.2d 1. This is true even where, as here, the changes are made in an effort to comply with federal law, so long as those changes reflect policy choices made by state or local officials. Id., at 565, n. 29, 89 S.Ct., at 831, n. 29. The NVRA does not preclude application of the VRA's requirements. Change invokes the preclearance process whether that change works in favor of, works against, or is neutral in its impact on minorities because the preclearance process is aimed at preserving the status quo until the Attorney General or the courts have an opportunity to evaluate a proposed change. Although the NVRA imposed mandates on the States, Mississippi's changes to the New System are discretionary and nonministerial, reflecting the exercise of policy choice and discretion by state officials. Thus, they are appropriate matters for §5 preclearance review. Pp. __-__.

(c) Mississippi's arguments in favor of its position that the Attorney General has already precleared its efforts to comply with the NVRA are rejected. Mississippi correctly argues that the decisions to adopt the NVRA federal registration system and to retain a prior state registration system, by themselves, are not changes for §5 purposes. However, preclearance requires examination of the federal system's discretionary elements in a context that includes history, purpose, and practical effect. The argument on the merits is whether these changes could have the purpose and effect of denying or abridging the right to vote on account of race or color. Preclearance is necessary to evaluate this argument. Pp. __-__.

Vacated and remanded.

BREYER, J., delivered the opinion for a unanimous Court.

Brenda Wright, Washington, D.C., for appellants.

Malcolm Stewart, Brookhaven, MS, for U.S. as amicus curiae, by special leave of the court.

Robert E. Sanders, Morro Bay, CA, for appellees.

Justice BREYER delivered the opinion of the Court.

The question before us is whether §5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. §1973c (§5), requires preclearance of certain changes that Mississippi made in its voter registration procedures-changes that Mississippi made in order to comply with the National Voter Registration Act, 42 U.S.C. §1973gg et seq. We hold that §5 does require preclearance.

I

A The National Voter Registration Act

In 1993, Congress enacted the National Voter Registration Act of 1993, 107 Stat. 77, 42 U.S.C. §1973gg et seq. —(NVRA), to take effect for States like Mississippi on January 1, 1995. The NVRA requires States to provide simplified systems for registering to vote in federal elections, i.e., elections for federal officials, such as the President, congressional Representatives, and United States Senators. The States must provide a system for voter registration by mail, §1973gg-4, a system for voter registration at various state offices (including those that provide "public assistance'' and those that provide services to people with disabilities), §1973gg-5, and, particularly important, a system for voter registration on a driver's license application. §1973gg-3. The NVRA specifies various details about how these systems must work, including, for example, the type of information that States can require on a voter registration form. §§1973gg-3(c)(2), 1973gg-7(b). It also imposes requirements about just when, and how, States may remove people from the federal voter rolls. §§1973gg-6(a)(3)-(4). The NVRA adds that it does not "supersede, restrict or limit the application of the Voting Rights Act of 1965,'' and that it does not "authoriz[e] or requir[e] conduct that is prohibited by the Voting Rights Act of 1965.'' §1973gg-9(d).

The Voting Rights Act

Section 5 of the Voting Rights Act of 1965(VRA), among other things, prohibits a State with a specified history of voting discrimination, such as Mississippi, from "enact[ing] or seek[ing] to administer any . . . practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,'' unless and until the State obtains preclearance from the United States Attorney General (Attorney General) or the United States District Court for the District of Columbia. §1973c. Preclearance is, in effect, a determination that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.'' Ibid. In the language of §5 jurisprudence, this determination involves a determination that the change is not retrogressive. Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363-1364, 47 L.Ed.2d 629 (1976); 28 C.F.R. §51.54(a) (1996).

B

The case before us concerns three different Mississippi voting registration systems: The first system, which we shall call the "Old System,'' is that used by Mississippi before it tried to comply with the NVRA. The second system, the "Provisional Plan,'' is a system aimed at NVRA compliance, which Mississippi tried to implement for about six weeks between January 1, 1995, and February 10, 1995. The third system, the "New System,'' is the system that Mississippi put into place after February 10, 1995, in a further effort to comply with the NVRA. We shall briefly explain the relevant features of each system.

The Old System. Before 1995, Mississippi administered a voting registration system, which, like the systems of most States, provided for a single registration that allowed the registrant to vote in both federal elections and state elections (i.e., elections for state and local offices). Under Mississippi law, a citizen could register to vote either by appearing personally at a county or municipal clerk's office or at other locations (such as polling places) that the clerk or his deputy visited to register people to vote. Miss.Code Ann. §§23-15-35, 23-15-37, 23-15-39(6) (1990). Mississippi citizens could also register by obtaining a mail-in registration form available at driver's license agencies, public schools, and public libraries, among other places, and mailing it back to the clerk. §23-15-47(2)(a) (Supp.1996). The law set forth various details, requiring, for example, that a mail-in application contain the name and address of the voter and that it be attested to by a witness, ibid., (although there is some dispute between the parties about whether an application could be rejected for failing to have the witness's signature). State law also allowed county registration officials to purge voters from the rolls if they had not voted in four years. §23-15-159 (1990).

The Provisional Plan. In late 1994, the Mississippi secretary of state, with the help of an NVRA implementation committee, prepared a series of voter registration changes designed to...