Morse v. Republican Party of Va., 517 U.S. 186, 42 (1996)

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Cite as: 517 U. S. 186 (1996)

Opinion of Stevens, J.

VII

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.

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 ad-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).

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