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 Kennedy, with whom The Chief Justice joins, dissenting.

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 36–40.

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 (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 (1944), and Terry v. Adams, 345 U. S. 461 (1953), may be of considerable relevance to equal protection or other constitutional challenges still pending before the District Court, see ante, at 3 (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 (1988), quoting Lugar v. Edmondson Oil Co., 457 U. S. 922, 936–937 (1982).

It is "unnecessary to traverse that difficult terrain in the present case," Lebron v. National Railroad Passenger Corporation, 513 U. S. ___, ___ (1995) (slip op., at 3), 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, and 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 (1978), does not reach the Party's actions. Post, at 2–12. 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).

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 (1966). See also Lugar v. Edmondson Oil Co., supra, at 929; Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982); West v. Atkins, 487 U. S. 42, 49 (1988); National Collegiate Athletic Assn. v. Tarkanian, supra, at 182, n. 4 (1988); Hafer v. Melo, 502 U. S. 21, 28 (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. ___, ___ (1995) (slip op., at 5) (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.

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 (1975) (reserving question whether national political party's selection of delegates to nominating convention amounts to state action). See also id., at 492–494 (Rehnquist, J., concurring in result); O'Brien v. Brown, 409 U. S. 1, 4–5 (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 (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 (1976).

Notwithstanding the terse dismissals of these concerns in the opinions that support today's judgment, ante, at 42–43 (opinion of Stevens, J.); ante, at 5 (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 (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. ___, ___-___ (1995) (slip op., at 22–26) (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 (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.

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. ___, ___ (1995) (Kennedy, J., concurring) (slip op., at 11) ("[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 30 (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.

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 24–26 (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 likely, 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.

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 (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 (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.