332
Opinion of the Court
the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof"). They cite not a single one, and we are aware of none.
It is true enough that, whenever Congress enacts a statute that bars conduct having "the purpose or effect of x," the purpose prong has application entirely separate from that of the effect prong only with regard to unlikely conduct that has "the purpose of x" but fails to have "the effect of x"— in the present context, the conduct of a so-called "incompe-tent retrogressor." The purpose prong has value and effect, however, even when it does not cover additional conduct. With regard to conduct that has both "the purpose of x" and "the effect of x," the Government need only prove that the conduct at issue has "the purpose of x" in order to prevail. In the specific context of § 5, where the covered jurisdiction has the burden of persuasion, the Government need only refute the covered jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose in order for preclearance to be denied. When it can do so, it is spared the necessity of countering the jurisdiction's evidence regarding actual retrogressive effect—which, in vote-dilution cases, is often a complex undertaking. This advantage, plus the ability to reach malevolent incompetence, may not represent a massive addition to the effect prong, but it is enough to justify the separate existence of the purpose prong in this statute, and is no less than what justifies the separate existence of such a provision in many other laws.1
1 Justice Souter criticizes us for "assum[ing] that purpose is easier to prove than effect . . . in voting rights cases." Post, at 358, n. 10 (opinion concurring in part and dissenting in part). As is obvious from our discussion in text, we do not suggest that purpose is always easier to prove, but simply that it may sometimes be (which suffices to give force to the "pur-pose" prong without the necessity of doing violence to the English language). Indeed, Justice Souter acknowledges that "intent to dilute is conceptually simple, whereas a dilutive abridgment-in-fact is not readily defined and identified independently of dilutive intent." Post, at 367.
Page: Index Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: October 4, 2007