Morse v. Republican Party of Va., 517 U.S. 186, 55 (1996)

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240

MORSE v. REPUBLICAN PARTY OF VA.

Breyer, J., concurring in judgment

gation of the civil rights of party adherents"); Presley, supra, 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 231-232, 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 232. 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.

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