# Presley v. Etowah County Commission

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Dissenting Opinion

    Stevens
United States Supreme Court
502 U.S. 491
Presley v. Etowah County Commission
No. Nos 90-711, 90-712 Argued: Nov. 12, 1991. --- Decided: Jan 27, 1992
Syllabus
Section 5 of the Voting Rights Act of 1965 requires a covered jurisdiction to obtain either judicial or administrative preclearance before enforcing any new "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." In various Alabama counties, voters elect members of county commissions whose principal function is to supervise and control county road maintenance, repair, and construction. In No. 90-711, the Etowah County Commission, without seeking preclearance, passed, inter alia, its "Common Fund Resolution," which altered the prior practice of allowing each commissioner full authority to determine how to spend funds allocated to his own road district. The resolution was passed by the four holdover members of the commission shortly after appellant Presley, a black man, and another new member were elected from districts established under a consent decree, the terms of which were precleared by the Attorney General. In No. 90-712, the Russell County Commission adopted a "Unit System," which abolished individual road districts and transferred responsibility for all road operations to the county engineer, a commission appointee. Neither the commission's resolution nor implementing state legislation was submitted for preclearance. Subsequent litigation led to a consent decree, which was precleared by the Justice Department without any mention of the Unit System changes, and under the terms of which appellants Mack and Gosha were elected as Russell County's first black county commissioners in modern times. They, along with Presley, filed suit in the District Court, alleging, among other things, that Etowah and Russell Counties had violated § 5 by failing to obtain preclearance for, respectively, the Common Fund Resolution and the adoption of the Unit System. A three-judge court convened pursuant to 28 U.S.C. § 2284 held that neither matter was subject to § 5 preclearance.
Held: Neither the Common Fund Resolution nor adoption of the Unit System was a change "with respect to voting" covered by § 5. Pp. 827-832.
(a) Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1, and this Court's later decisions reveal a consistent requirement that changes subject to § 5 pertain only to voting. Without implying that the four typologies exhaust the statute's coverage, it can be said that the cases fall within one of the following contexts: (1) changes in the manner of voting; (2) changes in candidacy requirements and qualifications; (3) changes in the composition of the electorate that may vote for candidates for a given office; and (4) changes affecting the creation or abolition of an elective office. The first three categories involve changes in election procedures, while all the examples within the fourth category might be termed substantive changes as to which offices are elective. But whether the changes are of procedure or substance, each has a direct relation to voting and the election process. Pp. 500-503.
(b) The Etowah County Commission's Common Fund Resolution was not subject to § 5's preclearance requirement. It is not a change within any of the categories recognized in Allen or the later cases; rather, it concerns only the internal operations of an elected body and the distribution of power among officials and, thus, has no direct relation to, or impact on, voting. The view advanced by appellants and the United States-to the effect that any act diminishing or increasing a local official's power would require preclearance-would work an unconstrained expansion of § 5's coverage beyond the statutory language and congressional intent by including innumerable enactments, such as budget measures, that alter the power and decisionmaking authority of elected officials but have nothing to do with voting, and fails to provide a workable standard for distinguishing between governmental decisions that involve voting and those that do not. Some standard is necessary, for in a real sense every decision taken by government implicates voting, yet no one would contend that Congress meant the Act to subject all or even most government decisions in covered jurisdictions to federal supervision. Pp. 503-506.
(c) The Russell County Commission's adoption of the Unit System and its concomitant transfer of operations to the county engineer do not constitute a change covered by § 5. There is not even an arguable basis for saying that the Unit System's adoption fits within any of the first three categories of changes in voting rules that this Court has recognized. As to the fourth category, the argument that the delegation of authority to an appointed official is similar to the replacement of an elected official with an appointed one and is therefore subject to § 5 under Bunton v. Patterson, decided with Allen, supra, ignores the rationale for the Bunton holding: The practice in question changed an elective office to an appointive one. Here, the citizens of Russell County may still vote for members of the county commission. The fact that those commissioners exercise less authority than they once did is a routine matter of governmental administration that does not in itself render the Unit System a rule governing voting. Because the county commission retains substantial authority, including the power to appoint the county engineer and set his or her budget, this Court need not consider whether an otherwise uncovered enactment might under some circumstances rise to the level of a de facto replacement of an elected office with an appointive one, within the Bunton rule. Pp. 506-508.
(d) Although the construction placed upon the Act by the Attorney General is ordinarily entitled to considerable deference, this Court need not defer to the United States' interpretation that the changes at issue are covered by § 5, since that section is unambiguous with respect to the question whether it covers changes other than changes in rules governing voting: It does not. See, e.g., Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844, 104 S.Ct. 2778, 2781-2782, 81 L.Ed.2d 694. Pp. 831-832.
Affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE and BLACKMUN, JJ., joined.
Edward Still, Birmingham, Ala., for appellants.
Robert A. Long, Jr., as amicus curiae, supporting the appellants.
Paul M. Smith, for appellees.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse