425 U.S. 130

Section 5 provides:

"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon

determinations made under the first sentence of section 1973b(b) of this title 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, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title 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, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title 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, 1972, 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, 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, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor 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. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. 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 and any appeal shall lie to the Supreme Court." 79 Stat. 439, as amended, 89 Stat. 402, 404, 42 U.S.C. § 1973c (1970 ed., Supp. V).

42 U.S.C. § 1973b (1970 ed. and Supp. V). Louisiana and its political subdivisions are subject to the provisions of § 4. 30 Fed.Reg. 9897 (1965).

The action was actually brought on behalf of the city of New Orleans by six of the seven members of its city council. For convenience the appellants sometimes are referred to in this opinion as New Orleans or the city.

The defendants in the suit were the United States and the Attorney General of the United States. A group of Negro voters of New Orleans intervened on the side of the defendants in the District Court.

The difference in the two figures is due in part to the fact that proportionately more whites of voting age are registered to vote than are Negroes and in part to the fact that the age structures of the white and Negro populations of New Orleans differ significantly 72.3% Of the white population is of voting age, but only 57.1% Of the Negro population is of voting age. See U. S. Civil Rights Commission, The Voting Rights Act: Ten Years After 368, 383.

The decision to draft a new plan was in large part attributable to the opposition to Plan I expressed by the residents of Algiers that part of New Orleans located south of the Mississippi River. The residents of Algiers have a common interest in promoting the construction of an additional bridge across the river. They had always been represented by one councilman, and they opposed Plan I primarily because it divided Algiers among three councilmanic districts.

The opposition to Plan I in Algiers, see n. 5, Supra, was quieted in Plan II by placing all of that section of the city in one councilmanic district.

The District Court did not address the question whether Plan II was adopted with such a "purpose." See n. 1, Supra.

This Court has, of course, rejected the proposition that members of a minority group have a federal right to be represented in legislative bodies in proportion to their number in the general population. See Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379. It is worth noting, however, that had the District Court applied its mathematical calculations to the five seats that were properly subject to its scrutiny, see part II-A of text, Infra, it would have concluded on the basis of registered voter figures that Negroes in New Orleans had a theoretical potential of electing 1.7 of the five councilmen. A realistic prediction would seem to be that under the actual operation of Plan II at least one and perhaps two Negro councilmen would in fact be elected. See Infra, at 142.

At various points in its 40-page opinion the District Court described its understanding of the statutory criteria in terms somewhat different from those quoted in the text above. Since as will hereafter appear, our understanding of the meaning of § 5 does not in any event coincide with that of the District Court, no purpose would be served by isolating and separately examining the various verbalizations of the statutory criteria contained in its opinion.

In reaching this conclusion, we do not decide the question reserved in Georgia v. United States, 411 U.S. 526, 535 n. 7, 93 S.Ct. 1702, 1708, 36 L.Ed.2d 472, 481, whether a district in a proposed legislative reapportionment plan that is identical to a district in the previously existing apportionment may be subject to review under § 5. The at-large seats in the present case were not even part of the 1961 plan, let alone of Plan II.

This Court has not before dealt with the question of what criteria a legislative reapportionment plan must satisfy under § 5. Last Term in City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245, the Court had to decide under what circumstances § 5 would permit a city to annex additional territory when that annexation would have the effect of changing the city's Negro population from a majority into a minority. The Court held that the annexation should be approved under the "effect" aspect of § 5 if the system for electing councilmen would likely produce results that "fairly reflect(ed) the strength of the Negro community as it exists after the annexation." 422 U.S., at 371, 95 S.Ct., at 2301, 45 L.Ed.2d, at 256. The City of Richmond case thus decided when a change with an adverse impact on previous Negro voting power met the "effect" standard of § 5. The present case, by contrast, involves a change with no such adverse impact upon the former voting power of Negroes.

Cf. Mr. Justice Brennan's dissenting opinion in City of Richmond v. United States, supra, at 388, 95 S.Ct., at 2312: "I take to be the fundamental objective of § 5 . . . the protection of Present levels of voting effectiveness for the black population." (Emphasis in original.)

The intervenors have advised us of statistics indicating that as of 1974 the percentage of Negro registered voters in the city as a whole increased to 38.2%. Assuming the accuracy of these estimates, and that the increase has been proportionate in each councilmanic district, it is quite possible that by this time not only a majority of the population but also a majority of the registered voters in two of the Plan II districts are Negroes. See Taylor v. McKeithen, 499 F.2d 893, 896 (C.A.5).

It is possible that a legislative reapportionment could be a substantial improvement over its predecessor in terms of lessening racial discrimination, and yet nonetheless continue so to discriminate on the basis of race or color as to be unconstitutional. The United States has made no claim that Plan II suffers from any such disability, nor could it rationally do so.

There is no decision in this Court holding a legislative apportionment or reapportionment violative of the Fifteenth Amendment. Cf. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512. The case closest to so holding is Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, in which the Court found that allegations of racially motivated gerrymandering of a municipality's political boundaries stated a claim under that Amendment. The many cases in this Court involving the Fourteenth Amendment's "one man, one vote" standard are not relevant here. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. But in at least four cases the Court has considered claims that legislative apportionments violated the Fourteenth Amendment rights of identifiable racial or ethnic minorities. See Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405; Burns v. Richardson, 384 U.S. 73, 86-89, 86 S.Ct. 1286, 1293-1295, 16 L.Ed.2d 376, 387-389; Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363, 379; White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314. Plan II does not remotely approach a violation of the constitutional standards enunciated in those cases.

Section 5 actually requires that "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" different from that in effect on November 1, 1964, be approved by the Attorney General or the District Court for the District of Columbia. 42 U.S.C. § 1973c (1970 ed., Supp. V). We have held that a redistricting plan is a "standard, practice, or procedure with respect to voting" within the meaning of § 5. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973).

We upheld the validity of the shifted burden of proof in South Carolina v. Katzenbach, 383 U.S. 301, 335, 86 S.Ct. 803, 822, 15 L.Ed.2d 769, 790 (1966).

"The Act suspends new voting regulations pending scrutiny by federal authorities to determine whether their use would violate the Fifteenth Amendment." Id., at 334, 86 S.Ct., at 822, 15 L.Ed.2d, at 790.

The Court's decisions relating to the relevance of purpose-and/or-effect analysis in testing the constitutionality of legislative enactments are somewhat less than a seamless web. The possible theoretical approaches are three: (1) purpose alone is the test of unconstitutionality, and effect is irrelevant, or relevant only insofar as it sheds light on purpose; (2) effect alone is the test, and purpose is irrelevant; and (3) purpose or effect, either alone or in combination, is sufficient to show unconstitutionality. At various times in recent years the Court has seemed to adopt each of these approaches.

In the two Fifteenth Amendment redistricting cases, Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the Court suggested that legislative purpose alone is determinative, although language in both cases may be isolated that seems to approve some inquiry into effect insofar as it elucidates purpose. See 376 U.S., at 52, 84 S.Ct., at 603, 11 L.Ed.2d, at 512; 364 U.S., at 341, 81 S.Ct., at 127, 5 L.Ed.2d, at 113. See also 376 U.S., at 73-74, 84 S.Ct., at 614-615, 11 L.Ed.2d, at 525-526 (Goldberg, J., dissenting). McGowan v. Maryland, 366 U.S. 420, 453, 81 S.Ct. 1101, 1119, 6 L.Ed.2d 393, 414 (1961), an equal protection-First Amendment case, expressly states that effect is of relevance in imputing an improper purpose, but that legislation is invalidated only for having such a purpose. And City of Richmond v. United States, 422 U.S. 358, 378-379, 95 S.Ct., 2296 at 2307-2308, 45 L.Ed.2d 245, at 260-261 (1975), suggests that bad purpose may invalidate a law under the Fifteenth Amendment even if there is no unconstitutional effect at all.

Completely contrary to these cases are those that hold that legislative purpose is wholly irrelevant to the constitutionality of legislation indeed, that purpose may not be examined at all and that a statute may be invalidated only if it has an unconstitutional effect. Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1944-1945, 29 L.Ed.2d 438, 444-445 (1971), and United States v. O'Brien, 391 U.S. 367, 384-385, 88 S.Ct. 1673, 1683-1684, 20 L.Ed.2d 672, 684-685 (1968), both vigorously attack purpose analysis and assert that Gomillion was decided as it was only because the statute in question had an unlawful effect.

Between these two positions are the cases that hold that either an impermissible purpose or an impermissible effect may alone be sufficient to invalidate a law. Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060, 1065 (1968); Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844, 858 (1963). While there is no need here to synthesize these three positions and the various cases, if indeed a synthesis is possible, it should be clear that the language of purpose and effect selected by Congress for use in § 5 is not necessarily an expansion of the constitutional standard. Congress did no more than adopt the third of the tests that the Court itself has juggled over the years. See generally Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970).

We have recognized that § 5 of the Fourteenth Amendment gives Congress the power to expand the substantive reach of that Amendment. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Undoubtedly, § 2 of the Fifteenth Amendment, under which the Voting Rights Act was enacted, confers similar power upon Congress with respect to the substantive reach of the Fifteenth Amendment. Thus, to the extent, if any, that analysis for purpose or for effect is not independently required for resolution of the constitutional question, see n. 4, Supra, Congress may be said to have expanded the constitutional inquiry in § 5 of the Voting Rights Act. Insofar as redistricting legislation is concerned, however, I believe a showing of purpose or of effect is alone sufficient to demonstrate unconstitutionality, and so I believe that in this context Congress enacted no more than the constitutional standard. Evaluation of the purpose of a legislative enactment is just too ambiguous a task to be the sole tool of constitutional analysis. See Palmer v. Thompson, supra, 403 U.S., at 224-225, 91 S.Ct., at 1944-1945, 29 L.Ed.2d, at 444-445; United States v. O'Brien, supra, 391 U.S., at 384-385, 88 S.Ct., at 1683-1684, 20 L.Ed.2d, at 684-685. Therefore, a demonstration of effect ordinarily should suffice. If, of course, purpose may conclusively be shown, it too should be sufficient to demonstrate a statute's unconstitutionality.

While the Court does quote language that suggests some of the other purposes that I see in the statute, Ante, at 140, when it comes to giving substantive content to § 5, the Court relies solely on the purpose suggested in the text.

It may be that this single purpose looms so large to the Court because it thinks it would be counterproductive to bar enforcement of a proposed plan, even if discriminatory, that is at all less discriminatory than the pre-existing plan, which would otherwise remain frozen in effect. While this argument has superficial appeal, it is ultimately unrealistic because it will be a rare jurisdiction that can retain its pre-existing apportionment after the rejection of a modification by the Attorney General or District Court. Jurisdictions do not undertake redistricting without reason. In this case, for instance, the New Orleans City Charter requires redistricting every 10 years. If the plan before us now were disapproved, New Orleans would have to produce a new one or amend its charter. In other cases, redistricting will have been constitutionally compelled by our one-person, one-vote decisions. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The virtual necessity of prompt redistricting argues strongly in favor of rejecting "ameliorative" but still discriminatory redistricting plans. The jurisdictions will eventually have to return with a nondiscriminatory plan.

Equally unsuccessful is the Court's attempt to paint the "ameliorative" changes in this case as dramatic. Negroes constitute 45% Of the population of New Orleans and 34.5% Of the city's registered

voters. Under the 1961 redistricting plan currently in effect in New Orleans, that population is distributed as follows:

Population Registered Voters

District % Negro % Negro

A 31.6 22.7 B 62.2 50.2 C 40.2 24.6 D 43.7 36.3 E 49.4 42.8

App. 621. Under Plan II, which is at issue in this lawsuit, the same population is distributed in this manner:

            Population     Registered Voters
 
      District   % Negro   % Negro
 
 
         A         29.1     22.6
         B         64.1     52.6
         C         35.8     23.3
         D         43.5     36.8
         E         50.6     43.2

App. 624.

Thus the positive change that convinces the Court that no inquiry into possible "abridgment" is necessary is the change from a majority of registered voters in District B of 50.2% (which the Court fails to mention) to what the Court calls a "clear" majority (although the Court has no idea what percentage of registered Negro voters actually vote) in that district of 52.6%. The Court also emphasizes that now Negroes constitute a majority of the population in two districts, whereas under the existing plan they are a majority in only one district. This beneficial change is accomplished by the shift from a minority of 49.4% Of the population in District E to a majority in that district of 50.6%.

H. R. Rep. No. 91-397, pp. 6-7 (1969), U.S.Code Cong. & Admin. News 1970, pp. 3282-3283. See also H. R. Rep. No. 439, 89th Cong., 1st Sess., 10-11 (1965), S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 8, 12 (1965), U.S. Code Cong. & Admin. News 1965, p. 2437; South Carolina v. Katzenbach, 383 U.S., at 315-316, 335, 86 S.Ct., at 811-812, 822, 15 L.Ed.2d, at 779-780, 790.

S. Rep. No. 94-295, p. 15 (1975), U. S. Code Cong. & Admin. News 1975, p. 781. See also H. R. Rep. No. 439, Supra, at 10-11. It is for this reason that the existing plan remains "frozen" in effect while the proposed plan is submitted for approval. Thus, any constitutional litigation may proceed without interruption, unless the new plan is itself found to be nondiscriminatory and is substituted. See H. R. Rep. No. 94-196, p. 58 (1975). Either way, the litigant obtains the relief he seeks a nondiscriminatory apportionment.

The pressure of having proposed plans judged by rigorous standards and the fear of litigation over new plans were thought to encourage covered jurisdictions to end all discrimination in voting.

"The preclearance procedure and this is critical serves psychologically to control the proliferation of discriminatory laws and practices because each change must first be federally reviewed. Thus section 5 serves to prevent discrimination before it starts." 115 Cong. Rec. 38486 (1969) (remarks of Rep. McCulloch).

See also Id., at 38517 (remarks of Rep. Anderson); U. S. Commission Civil Rights, The Voting Rights Act: Ten Years After, pp. 30-31 (1975).

The Act's limited term is proof that Congress intended to secure prompt, and not gradual, relief. Originally, the Act was intended to be in effect for only five years. While it has been twice extended, each extension was also for only a few years; five more years in 1970, and seven more years in 1975. Thus, it cannot be argued that the Act contemplated slow forward movement, which the Court's construction sanctifies, rather than a quick remedial "fix."

While I read "abridge" in both § 5 and the Fifteenth Amendment as primarily involving an absolute assessment of dilution of Negro voting power from its potential, I do not hold that recognition of a relative change is absolutely irrelevant to this determination. For instance, it may often be useful to glean some indication of purpose from a minority's relative position under the existing and proposed plans. Moreover, there will be circumstances annexations, for example where dilution can fairly be measured only in comparison to the prior scheme. See City of Richmond v. United States, 422 U.S., at 378, 95 S.Ct., at 2307, 45 L.Ed.2d, at 260. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

Today the Court finds it simple to conclude that Plan II is "ameliorative," but it will not always be so easy to determine whether a new plan increases or decreases Negro voting power relative to the prior plan. To the contrary, I believe the Court's test will prove unduly difficult of application and excessively demanding of judicial energies.

For instance, the Court today finds that an increase in the size of the Negro majority in one district, with a concomitant increased likelihood of electing a delegate, conclusively shows that Plan II is ameliorative. Will that always be so? Is it not as common for minorities to be gerrymandered into the same district as into separate ones? Is an increase in the size of an existing majority ameliorative or retrogressive? When the size of the majority increases in one district, Negro voting strength necessarily declines elsewhere. Is that decline retrogressive? Assuming that the shift from a 50.2% To a 52.6% Majority in District B in this case is ameliorative, and is not outweighed by the simultaneous decrease in Negro voting strength in Districts A and C, when would an increase become retrogressive? As soon as the majority becomes "safe"? When the majority is achieved by dividing pre-existing concentrations of Negro voters?

Moreover, the Court implies, Ante, at 139 n. 11, by its attempt to harmonize its holding today with City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975), ante, at 139 n. 11, that this preliminary inquiry into the nature of the change is the proper approach to all § 5 cases. The Court's test will prove even more difficult of application outside the redistricting context. Some changes just do not lend themselves to comparison in positive or negative terms; others will always seem negative or positive no matter how good or bad the result. For instance, when a city goes from an appointed town manager to an elected council form of government, can the change ever be termed retrogressive, even if the new council is elected at large and Negroes are a minority? Or where a jurisdiction in which Negroes are a substantial minority switches from at-large to ward voting, can that change ever constitute a negative change, no matter how badly the wards are gerrymandered?

I realize, of course, that determining the ultimate question of "abridgment" may involve answering questions similar to those I have posed above and that those questions will be just as difficult to answer. My point, however, is exactly that the inquiry is a difficult one, and that there is no reason substantially to compound that complexity by posing an unnecessary and equally complex preliminary inquiry.

As I understand it, the Court views the constitutional inquiry as part of the § 5 inquiry. See ante, at 141. Thus, the burden of proof on constitutional issues, as on all § 5 issues, is on the covered jurisdiction. Although the Court's treatment of the point is ambiguous, I read its observation that "(t)he United States has made no claim" that Plan II is unconstitutional, ante, at 142 n. 14, as indicating only that it is for the United States to raise the issue of unconstitutionality in the § 5 proceeding, and not as suggesting that, once the issue is raised, the United States must prove the claim as well. Any other reading would frustrate still another legislative purpose. The Act freezes the existing plan and places the burden of proof on the covered jurisdiction to justify the proposed plan expressly in order "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, 15 L.Ed.2d, at 786. See also H.R.Rep.No.94-196, p. 58 (1975). I do not understand the Court, in bringing the constitutional issue in through the back door, to eliminate the primary procedural advantage to the United States of the § 5 proceeding.

The Court's treatment of the constitutional questions is all the more puzzling if it intends to confine its constitutional analysis to those seats brought before the District Court in the § 5 proceeding. In this case, the Court holds that it may avoid looking at the two at-large seats on the New Orleans City Council in deciding the § 5 claim, but see Infra, at 158-159, and its exclusion of those seats appears to extend to its ultimate constitutional inquiry as well. Yet, it is obvious that an independent constitutional challenge to Plan II would also include a challenge to the at-large seats and that such a broadened attack would be considerably more difficult to reject than the question the Court evidently considers. The change in focus caused by an expanded challenge both accentuates the dilution of the Negro vote in New Orleans, see n. 19, infra, and necessitates recognition of the particularly dilutive effects of at-large districting schemes. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). If the Court has ignored these factors in finding Plan II constitutional, it has engaged in no more than a time-consuming hypothetical adjudication, for its holding will surely not bar a future constitutional challenge to the entire scheme.

Because I read § 5 as incorporating the standards of the Fifteenth Amendment, see nn. 4-5, supra, I read these cases as holding, implicitly, that the Fourteenth and Fifteenth Amendments mandate the same test for assessing the validity, on racial grounds, of legislative apportionments. Since a person whose right to vote is denied or abridged on account of race is likewise denied equal protection of the laws, borrowing from the developed corpus of Fourteenth Amendment law is entirely appropriate.

Seeking another source for a § 5 test is particularly appropriate given the scarcity of Fifteenth Amendment case law. Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), the only relevant Fifteenth Amendment cases, predate not only the Voting Rights Act, its incorporation of the language of the Fifteenth Amendment, and our cases construing that incorporation, but also all the Fourteenth Amendment developments discussed in the text. For these reasons, and because neither case states a general test, Wright And Gomillion are of no help at all in formulating a test for § 5 cases.

The Court refers to the cited page for the proposition that members of a minority group have no federal right "to be represented in legislative bodies in proportion to their number in the general population." Ante, at 136-137, n. 8. Whitcomb v. Chavis stands for no such proposition. The language the Court refers to is substantively identical to that quoted in the text and supports only the notion that there is no right to proportional representation absent evidence of denial of access to the political process.

The cases make clear that the inquiry is not meant to be limited to the ability of the minority group to participate in the voting plan under attack, but also includes sweeping analysis of the minority group's past and present treatment by the jurisdiction before the court. White v. Regester, 412 U.S., at 766-767, 93 S.Ct., at 2339-2340, 37 L.Ed.2d, at 324-325; Whitcomb v. Chavis, 403 U.S., at 149-153, 91 S.Ct., at 1872-1874, 29 L.Ed.2d, at 379-382.

For instance, a city with a 20% Negro population and a five-member council elected in wards might be able to justify the placement of only 20% Minority population in each district, despite a history of denial of access to the political process, by showing that the minority population was perfectly distributed throughout the municipality so that the creation of a Negro-majority ward was an impossibility. On the other hand, again assuming a history of denial of access to the political process, such a plan could not survive attack if the 20% Negro population of each ward were achieved by dividing five ways a concentrated bloc of Negro voters located in the center of the city.

This effect is clear in this case, where Negroes constitute 34.5% Of the New Orleans electorate. Out of seven seats, Negroes should reasonably expect to control at least two. In considering only five seats, the Court suggests properly, given its self-imposed limitation that Negroes should have an expectancy of only one seat. Ante, at 137 n. 8. If only two of the five districts were before us, and assuming a 34.5% Minority share of the voting population in those districts, the Court could properly conclude that Negroes could lay claim to neither of the two seats. Thus, under the Court's approach, the smaller the number of seats that the city may present for consideration, the grosser the discrimination that may be numerically tolerated.

The tendency to racial bloc voting in New Orleans is a finding of fact by the District Court that is not challenged here. Such voting was encouraged until 1964 by a Louisiana statute, declared unconstitutional in Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), that required the race of each candidate to be printed on the ballots used in all elections within the State.

Appellants challenge the propriety of looking at this evidence in assessing the effect of Plan II, not its accuracy.

The majority-vote requirement is a rule that the winner of an election must have a majority of the vote. Thus, in a race involving three or more candidates, a plurality of voters cannot elect their candidate. If no candidate wins a majority, there is a run-off election.

The "anti-single-shot" rule is a requirement that in a multi-member district the voter must vote for as many candidates as there are seats to be filled. Thus, although the voter may be interested in only one of the candidates, he must vote for others as well.

The city asserts that its seventh goal is to retain "historic and traditional councilmanic district boundaries" so as to "preserve continuity within the electorate." Brief for Appellants 28-29. In fact, the record is conclusive that the goal was purely to keep incumbents apart. 1 App. 206-207; 2 App. 344, 557.

While the Court today finds that the District Court erred in finding a discriminatory effect, it does not address the issue not reached by the District Court: whether Plan II was drafted with a discriminatory purpose. Of course, this question remains on remand. See City of Richmond v. United States, 422 U.S., at 378-379, 95 S.Ct., at 2307-2308, 45 L.Ed.2d, at 260-261.