374
Breyer, J., dissenting
"purpose" that is at war with both controlling precedent and the plain meaning of the statutory text.
Accordingly, for these reasons and for those stated at greater length by Justice Souter, I respectfully dissent.
Justice Breyer, dissenting.
I agree with Justice Souter, with one qualification. I would not reconsider the correctness of the Court's decision in Beer v. United States, 425 U. S. 130 (1976)—an "effects" case—because, regardless, § 5 of the Voting Rights Act of 1965 prohibits preclearance of a voting change that has the purpose of unconstitutionally depriving minorities of the right to vote.
As Justice Souter points out, ante, at 360-361 (opinion concurring in part and dissenting in part), Congress enacted § 5 in 1965 in part to prevent certain jurisdictions from limiting the number of black voters through "the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966). This "stratagem" created a moving target with a consequent risk of judicial runaround. See, e. g., Perkins v. Matthews, 400 U. S. 379, 395-396 (1971). And this "stratagem" could prove similarly effective where the State's "new rules" were intended to retrogress and where they were not. Indeed, since at the time, in certain places, historical discrimination had left the number of black voters at close to zero, retrogression would have proved virtually impossible where § 5 was needed most.
An example drawn from history makes the point clear. In Forrest County, Mississippi, as of 1962, precisely three-tenths of 1% of the voting age black population was registered to vote. United States v. Mississippi, 229 F. Supp. 925, 994, n. 86 (SD Miss. 1964) (dissenting opinion), rev'd, 380 U. S. 128 (1965). This number was due in large part to the county registrar's discriminatory application of the State's
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