290
Thomas, J., dissenting
* * *
To conclude, I would decide this controversy on the ground that the Republican Party of Virginia is not a "State or political subdivision" for purposes of § 5. This is true whether one invokes the ordinary meaning of the term "State" or even, as the Court erroneously does, the state-action theory of our constitutional precedents. Even if the Party were a "State" or a state actor, the registration fee does not relate to "voting," as defined by § 14. Because the argument for the applicability of § 5 in this case fails at each step, I would not require the Party to preclear its convention registration fee under § 5. Nor would I imply a private right of action under § 10.
Today, the Court cuts § 5 loose from its explicit textual moorings regarding both the types of entities and the kinds of changes that it governs. Justice Breyer, writing for three Members of the Court, does so without attempting to define the limits of § 5's applicability to political parties and their practices. See ante, at 238 ("We need not . . . determin[e] when party activities are, in effect, substitutes for state nominating primaries"); ibid. ("Nor need we go further to decide just which party nominating convention practices fall within the scope of the Act"). Indeed, Justice Breyer expends much ink evading inevitable questions about the Court's decision. See ante, at 239 ("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, as are those about the limits imposed by the state-action cases") (citations omitted). This is not reassuring, and it will not do. Eventually, the Court will be forced to come to grips with the untenable and constitutionally flawed interpretation of § 5 that it has wrought in this case. That encounter,
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