SUPREME COURT OF THE UNITED STATES

No. 94–203

FORTIS MORSE, KENNETH CURTIS BARTHOLO-MEW and KIMBERLY J. ENDERSON, APPEL-

LANTS v. REPUBLICAN PARTY OF

VIRGINIA et al.

on appeal from the united states district court for the western district of virginia

[March 27, 1996]

Justice Breyer, with whom Justice O'Connor and Justice Souter join, concurring in the judgment.

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, African-Americans 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" primary—a 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 (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 (1953).

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 (1966) (summarizing legislative history), and it knew more besides. It knew that Mississippi had just sent to the Democrat 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?

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

"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.

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

"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).

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

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; Terry, supra, at 473 (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.

The answer to this question must be "no." In light of history—that 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.

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 United 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).

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 (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 require ment"). 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 (MD Ala. 1990) (three-judge court), vacated as moot, 499 U. S. 933 (1991); Fortune v. Kings County Democratic County Committee, 598 F. Supp. 761, 764–765 (EDNY 1984) (three-judge court) (per curiam); MacGuire v. Amos, 343 F. Supp. 119, 121 (MD Ala. 1972) (three-judge court) (per curiam).

While these limitations exclude much party activity— including much that takes place at an assembly of its members—I 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).

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 (1989), as are those about the limits imposed by the state action cases. See Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991). Those questions, however, are properly left for a case that squarely presents them.

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 (1953); Smith v. Allwright, 321 U. S. 649 (1944). See also Eu, supra, at 232 (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 (setting out which voting-related practices are subject to preclearance); Brief for Appellees 6–7 (agreeing §5 reaches certain primary-related party activity).

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.

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 45–47, that the rationale of Allen v. State Bd. of Elections, 393 U. S. 544, 556–557 (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. 97–417, 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 47. 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.