368
Opinion of Souter, J.
idea of a reasonable allocation of power between minority and majority voters; this requires a court to compare a challenged voting practice with a reasonable alternative practice. See Holder v. Hall, 512 U. S. 874, 880 (1994) (opinion of Kennedy, J.); id., at 887-888 (O'Connor, J., concurring in part and concurring in judgment); see also Johnson v. De Grandy, 512 U. S. 997, 1018 (1994). Looking only to retrogression in effect, while looking to any dilutive or other abridgment in purpose, avoids the difficulty of baseline derivation. The distinction was not intended by Congress, but such a distinction is not irrational.
Indeed, the Justice Department has always taken the position that Beer is limited to the effect prong and puts no limitation on discriminatory purpose in § 5. See Brief for Federal Appellant 32-33. The Justice Department's longstanding practice of refusing to preclear changes that it determined to have an unconstitutionally discriminatory purpose, both before and after Beer, is entitled to "particular deference" in light of the Department's "central role" in administering § 5. Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 39 (1978); see also United States v. Sheffield Bd. of Comm'rs, 435 U. S. 110, 131-132 (1978); Perkins v. Matthews, 400 U. S. 379, 390-391 (1971). Most significant here, the fact that the Justice Department has for decades understood Beer to be limited to effect demonstrates that such a position is entirely consistent and coherent with the law as declared in Beer, even though it may not have been what Congress intended.
3
Giving wider scope to purpose than to effect under § 5 would not only preserve the capacity of § 5 to bar preclearance to all intended violations of the Fifteenth Amendment,15 it would also enjoy the virtue of consistency with
15 Justice Breyer developed this justification for giving full effect to the "purpose" prong in his opinion in Bossier Parish I, 520 U. S., at 493- 497 (opinion concurring in part and concurring in judgment). Section 2,
Page: Index Previous 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 NextLast modified: October 4, 2007