author:
Justice O'Connor
      Justice Kennedy, Justice Thomas,

text:
    LOPEZ et al. v. MONTEREY COUNTY et al.
    No. 97-1396.
    Argued November 2,1998
    Decided January 20, 1999

      Joaquin G. Avila argued the cause for appellants. With him on the briefs were Denise Hulett and Robert Rubin.

      Paul R. Q. Wolf son argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Hodgkiss, Deputy Solicitor General Underwood, Mark L. Gross, Rebecca K. Troth, and Louis E. Peraertz.

      Daniel G. Stone, Deputy Attorney General of California, argued the cause for the state appellee. With him on the brief were Daniel E. Lungren, Attorney General, Linda A. Cabatic, Senior Assistant Attorney General, and Marsha A. Bedwell, Supervising Deputy Attorney General. Douglas C. Holland filed a brief for appellee Monterey County.

        Deborah J. La Fetra filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance.

   Justice O'Connor

delivered the opinion of the Court.

Under the Voting Rights Act of 1965 (Act or Voting Rights Act), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq., designated States and political subdivisions are required to obtain federal preclearance before giving effect to changes in their voting laws. See § 1978c. Here, the State of California (California or State), which is not subject to the Act’s preelearance requirements, has passed legislation altering the scheme for electing judges in Monterey County, California (Monterey County or County), a “covered” jurisdiction required to preclear its voting changes. In this appeal, we review the conclusion of a three-judge District Court that Monterey County need not seek approval of these changes before giving them effect. The District Court reasoned, specifically, that California is not subject to the preclearance requirement and that Monterey County merely implemented a California law without exercising any independent discretion. We hold that the Act’s preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county. Accordingly, we reverse the decision of the District Court.

I

The instant appeal marks the second occasion on which this Court has addressed issues arising in the course of litigation over the method for electing judges in Monterey County, and we assume familiarity with our previous decision in this case. See Lopez v. Monterey County, 519 U. S. 9 (1996).

A

Congress enacted the Voting Rights Act under its authority to enforce the Fifteenth Amendment’s proscription against voting discrimination. The Act contains generally applicable voting rights protections, but it also places special restrictions on voting activity within designated, or “covered,” jurisdictions. Jurisdictions — States or political subdivisions — are selected for coverage if they meet specified criteria suggesting the presence of voting discrimination in the jurisdiction. The criteria pertinent to this case were established by a 1970 amendment to the Act that extended coverage to any jurisdiction that “(i) the Attorney General determines maintained on November 1,1968, any test or device [as a prerequisite to voting], and with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of November 1968.” 84 Stat. 815, 42 U. S. C. § 1978b(b).

The Act subjects covered jurisdictions to special restrictions on their voting laws. Section 4(a) suspends use of a “test or device” in any jurisdiction designated for coverage. § 1973b(a)(l). In addition, § 5 of the Act provides that covered jurisdictions must obtain federal approval for any measure that departs from the voting scheme in place in the jurisdiction on a specified date. The portion of § 5 applicable in this ease provides, specifically, that federal preelearanee is required “whenever a [covered] State or political subdivision . . . shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1968.” § 1973c.

A covered jurisdiction has two avenues available to seek the federal preelearanee required under §5. The jurisdiction may submit the proposed voting change to the Attorney General. If the Attorney General affirmatively approves the change or fails to object to it within 60 days, the change is deemed precleared and the jurisdiction may put it into effect. Ibid. Alternatively, either in the first instance or following an objection from the Attorney General, a covered jurisdiction may seek preelearanee for a voting change by filing a declaratory judgment action in the United States District Court for the District of Columbia. Ibid. The change is precleared if the court declares that the proposed “qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group].” § 1973c.

In 1971, Monterey County was designated a covered jurisdiction based on findings that, as of November 1, 1968, the County maintained California’s statewide literacy test as a prerequisite to voting and less than 50 percent of the County’s voting age population participated in the November 1968 Presidential election. 35 Fed. Reg. 12354 (1970); 36 Fed. Reg. 5809 (1971); see also 42 U.S.C. §1973b(b). Accordingly, the County must obtain federal preelearance for any departure from the voting scheme in place on November 1,1968.

In fact, over the last 30 years, there have been numerous changes in the structure of the County’s trial court system and the scheme for electing judges. On November 1, 1968, Monterey County had nine judicial districts: two municipal court and seven justice court districts. As we observed in our earlier opinion, see Lopez v. Monterey County, supra, at 12, municipal court districts encompassed larger populations than their justice court counterparts, and the former districts had two judges whereas the latter had one. Moreover, justice courts were not courts of record, and their judges frequently worked part time. Each of the nine districts in place in 1968 was wholly independent, and its judges were elected at large by voters in the district in which they served.

Since 1972, however, the County’s judicial system has undergone substantial change resulting in what is today a single, countywide municipal court served by 10 judges. Four County ordinances adopted between 1972 and 1976 reduced the number of justice court districts in the County from seven to three. Subsequently, a 1977 state law transformed a justice court district into a municipal court district, raising the total number of municipal districts to three. 1977 Cal. Stats., ch. 995.

The next noteworthy change in the County’s judicial election scheme occurred in 1979, with the consolidation of the County’s three municipal court districts. On June 5, 1979, the County passed Ordinance No. 2524, which provided that the Monterey Peninsula Judicial District, North Monterey County Judicial District, and the Salinas Judicial District would be combined to form the Monterey County Municipal Court District. App. to Juris. Statement 75. The same year, the State enacted a law, apparently at the County’s request, requiring the same merger of the municipal court districts and mapping out some of the mechanics of the new, consolidated district. 1979 Cal. Stats., ch. 694; see also §4 (noting that “this act is in accordance with the request of a local governmental entity or entities which desired legislative authority to carry out the program specified in this act”). The state Act provides, in pertinent part, that “[t]here is in the County of Monterey, on and after the effective date of this section, a single municipal court district which embraces the former Salinas Judicial District, Monterey Peninsula Judicial District and North Monterey County Judicial District.” § 2. The 1979 changes thus left the County with one municipal court district and two justice court districts.

The final step toward a single, countywide district occurred in 1983. County Ordinance No. 2930, passed by Monterey County’s Board of Supervisors on August 2,1983, merged the remaining two justice court districts into the municipal court district formed by the 1979 consolidation. App. to Juris. Statement 77-80. The merger became effective on January 1, 1984, and the resulting district was countywide. The State, again apparently at the County’s request, enacted legislation in September 1983, increasing the number of judges in the County’s municipal court district from seven to nine contingent upon the merger of the justice court districts already provided for by the County ordinance. 1983 Cal. Stats., eh. 1249, §§3, 16. The State subsequently recognized that the merger had taken effect and provided for the additional judgeships. 1985 Cal. Stats., ch. 659, § 1. Moreover, pursuant to state authorization, the County ultimately increased the number of sitting judges from 9 to the current 10. 1987 Cal. Stats., ch. 1211, §30; App. to Juris. Statement 81-82. Judicial elections took place under an at-large, countywide plan in 1986,1988, and 1990.

The County, although covered by § 5 of the Act, failed to seek federal preelearanee for any of its six consolidation ordinances. Nor did the State preclear its 1979 law that, like the County ordinance adopted the same year, directed the consolidation of the three municipal court districts. The State did seek the Attorney General’s approval, however, for the 1983 state law authorizing additional judgeships upon the final merger of the justice courts into a single, countywide municipal court district. In the process, the State provided the- Department of Justice with a copy of the County’s 1983 consolidation ordinance. The Attorney General did not oppose the State’s 1983 submission, and we have thus observed that this “submission may well have served to preclear the 1983 county ordinance.” Lopez v. Monterey County, 519 U. S., at 15. We noted, however, that preclearance of the County’s 1983 ordinance probably failed to satisfy the need to preelear the preceding consolidation ordinances, ibid. (“Thus, under our precedent, these previous consolidation ordinances do not appear to have received federal preelear-anee approval”), and the State does not challenge this conclusion here, see Brief for Appellee State of California 13, n. 10.

B

Appellants, Hispanic voters who reside in Monterey County, filed suit in the United States District Court for the Northern District of California on September 6, 1991, claiming that the County had failed to fulfill its § 5 obligation to preclear any of the consolidation ordinances passed between 1972 and 1983. A three-judge District Court concluded that the ordinances were voting changes requiring preclearance under §5 and that the ordinances were unenforceable until they were preeleared.

Accordingly, the County initiated proceedings before the United States District Court for the District of Columbia in an effort to preclear the ordinances. Ultimately, however, the County agreed to dismiss the suit without prejudice and to stipulate that its “ Hoard of Supervisors is unable to establish that the [consolidation ordinances] adopted by the County between 1968 and 1983 did not have the effect of denying the right to vote to Latinos in Monterey County due to the retrogressive effect several of these ordinances had on Latino voting strength in Monterey County.’” Lopez v. Monterey County, 871 F. Supp. 1264, 1256 (ND Cal. 1995) (quoting Monterey County Resolution 94-107 (Mar. 15, 1994)).

Back before the three-judge District Court in the Northern District of California, appellants and the County, working together, submitted alternatives to the districtwide voting scheme. Meanwhile, the State was allowed to intervene in the proceedings, and it opposed the proposed plans on the ground that they violated aspects of the California Constitution governing judicial elections. By late 1994, after unsuccessful attempts by the County to secure an amendment to the California Constitution, appellants and the County remained unable to formulate a judicial election plan that they felt would comport with the requirements of the Voting Rights Act and that did not violate some aspect of state law. Under these circumstances, the District Court opted to put a voting scheme in place for purposes of a single election. See 871 F. Supp., at 1255-1256. The temporary plan, under which judges were elected from districts but served eountywide, violated California constitutional provisions requiring that jurisdiction be coextensive with a judge’s electoral base and prohibiting the division of cities among two or more municipal courts. See Cal. Const., Art. VI, § 16(b); Art. VI, § 5(a). The District Court concluded, however, that the single election would interfere only minimally with state interests. See 871 F. Supp., at 1259-1260.

The Attorney General precleared the court’s interim plan in March 1995, and judges were selected in a 1995 special election to serve until January 1997. Following the election, however, this Court decided Miller v. Johnson, 515 U. S. 900 (1995), which, in the District Court’s view, cast doubt on the legality of the interim plan. Having determined that other options were not feasible, the court thus ordered a new judicial election to be held in March 1996 under a eountywide voting scheme, the very scheme that the County had effected through its consolidation ordinances and that appellants had challenged in their original complaint.

This Court granted appellants’ emergency stay application and enjoined the proposed, eountywide election. 516 U. S. 1104 (1996). We subsequently noted probable jurisdiction over the appeal, 517 U. S. 1118 (1996), and we reversed, Lopez v. Monterey County, 519 U. S. 9 (1996). The District Court had erred, we concluded, in directing an election to take place under a scheme that had not been precleared as required under §5. Accordingly, we remanded the matter to the District Court and directed that “[t]he requirement of federal scrutiny should be satisfied without further delay.” Id., at 25. In so doing, we expressly declined to pass on the merits of a claim raised by the State that the current, eountywide election scheme is not subject to § 5 preclearance because the scheme is now required by a combination of pre-cleared law and California law. Id., at 19-20. State law, under this view, does not require preelearanee because it is not the product of a covered jurisdiction.

On remand, the State moved to dismiss appellants' complaint on this theory, among others, and the District Court agreed that preelearanee was unnecessary because the countywide scheme was now mandated by California law. No. C-91-20559-RMW (ND Cal., Dec. 19, 1997), App. to Juris. Statement 1, 4-9. Among the other grounds for dismissal raised in its motion, the State also alleged that appellants' claims are barred by laches, that it was constitutional error to designate the County as a covered jurisdiction under § 5, and that the consolidation ordinances did not alter a voting “standard, practice, or procedure” subject to pre-elearanee under §5. The District Court did not address these alternative bases to dismiss appellants' complaint, however, and we do not reach them here. The State also moved to vacate a September 25, 1996, order extending the terms of the judges elected under the 1995 interim plan. The District Court granted this request along with the State’s motion to dismiss.

In granting the motion to dismiss, the District Court reasoned that § 5, by its own terms, creates a preclearance obligation only for covered jurisdictions. Noncovered entities, like the State, bear no responsibility to preclear voting changes that they “enact or seek to administer.” See id., at 5. “[T]he purpose of § 5 appears to be to target only those enactments by jurisdictions suspected of abridging the right to vote and not those put in force by a non-eovered, superior jurisdiction.” Ibid.

Here, the District Court concluded, the 1979 state law had consolidated the three existing municipal courts and mandated that there be one municipal court district in the County. This Act, in the court’s view, did not require pre-clearance because it was the product of the State, a non-eovered jurisdiction. The only additional change — effected by the County’s 1983 ordinance merging the remaining justice court districts with the municipal court district — had been precleared. Moreover, the court reasoned, even if the 1983 ordinance had not received preclearanee, an amendment to the California Constitution effective January 1,1995, eliminated justice courts, and thus the remaining two justice court districts would have merged with the municipal court district as a matter of course. See Cal. Const., Art. VI, § 5(b). The justice court districts would have been unable to become municipal court districts themselves, the District Court reasoned, in light of a state constitutional provision requiring a minimum of 40,000 residents in a municipal court district. App. to Juris. Statement 8; see Cal. Const., Art. VI, § 5(a). In reaching its conclusion, the court expressly rejected appellants’ claim that even voting changes effected by California law require preclearance before the County may “seek to administer” them. Relying on our decision in Young v. Fordice, 520 U. S. 273 (1997), the District Court concluded that a jurisdiction “ ‘seek[s] to administer’ ” a voting change, as that language is used in § 5, only where the jurisdiction exercises some element of discretion or policy choice in the matter. App. to Juris. Statement 8-9. Here, the court found, the County had no choice but to implement the countywide voting scheme.

We noted probable jurisdiction over the appeal from the order dismissing appellants’ complaint, 523 U. S. 1093 (1998), and we reverse.

II

A

Appellants and the County together contend that the County must obtain preclearanee for changes leading to the eountywide voting scheme before giving effect to this scheme. The State urges, in response, that §5 expressly limits its preelearance requirements to covered jurisdictions. “Partially covered” jurisdictions like California, the State insists, are under no obligation to comply with § 5. Appellants do not argue, however, that the State is obligated to seek preelearance for voting changes that it effects. Rather, appellants claim that the County, which is unquestionably subject to § 5, must pursue preelearance for state-sponsored voting changes that it “seek[s] to administer.” That the non-precleared aspects of the countywide voting plan may now be required by state law, in appellants’ view, is irrelevant to the § 5 analysis because it is the County that “seek[s] to administer” the scheme. Accordingly, the question before this Court is whether a covered jurisdiction “seek[s] to administer” a voting ehange when, without exercising any independent discretion, the jurisdiction implements a change required by the superior law of a noncovered State. Because we agree with appellants that a covered jurisdiction “seek[s] to administer” a voting ehange even where the jurisdiction exercises no discretion in giving effect to a state-mandated change, we conclude that the County is required to seek preelearance before implementing California laws that effect voting changes in the County.

The face of the Act itself provides the most compelling support for appellants’ claim. The phrase “seek to administer” provides no indication that Congress intended to limit § 5’s preelearance obligations to the discretionary actions of covered jurisdictions. To the contrary, “administer” is consistently defined in purely nondiseretionary terms. See, e. g., Webster’s Third New International Dictionary 27 (1961) (“to manage the affairs of,” “to direct or superintend the execution, use, or conduct of”); Random House Dictionary of the English Language 26 (2d ed. 1987) (“to manage (affairs, a government, etc.); have executive charge of”); Black’s Law Dictionary 44 (6th ed. 1990) (“To manage or conduct”). The State’s view that “administer” is intended to capture a covered jurisdiction’s nonlegislative, executive initiatives is not to the contrary. Such a reading poses no harrier to the view that “administer” also encompasses nondiseretionary acts by covered jurisdictions endeavoring to comply with the superior law of the State.

Nor are we persuaded that Congress’ use of the word “seek” is intended to require an act of discretion by the covered jurisdiction in order to trigger the preclearance requirement. The word “seek” in this context is more readily understood as creating a temporal distinction. The Government has indicated that a covered jurisdiction need not seek preclearanee before enacting legislation that would effect a voting change. See 28 CFR § 51.22(a) (1997) (listing “[a]ny proposal for a change affecting voting submitted prior to final enactment” among “premature submissions” that Attorney General will not consider); see also Tr. of Oral Arg. 20. Preclearanee is required before actually administering a change, however, and use of the word “seek” in §5 makes this distinction clear.

We note, too, that this Court has elsewhere assumed that legislation from a partially covered State must be precleared to the extent that it affects covered counties. In United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977), we rejected a constitutional challenge brought by Hasidic residents of Kings County, New York, to a redistrieting plan enacted by the state legislature. We assumed in that ease that the state plan was subject to the Act’s preclearance requirements, even though the State was not a covered jurisdiction, because Kings and other counties were themselves covered by the Act. We observed that, after the State’s efforts to exempt its counties from the Act’s coverage proved unsuccessful, see New York ex rel. New York County v. United States, 419 U. S. 888 (1974), “it became necessary for New York [State] to secure the approval of the Attorney General or of the United States District Court for the District of Columbia for its 1972 reapportionment statute insofar as that statute concerned [the covered] Counties,” 430 U. S., at 148-149. Moreover, the decision’s constitutional analysis relies on the fact that the redistriet-ing effort was meant to fulfill the State’s obligations under the Act. Id., at 162 (“[Petitioners have not shown, or offered to prove, that New York did more than the Attorney General was authorized to require it to do . . .”); see also Shaw v. Hunt, 517 U. S. 899, 911-913 (1996) (evaluating whether partially covered State’s §5 obligations justified race-based districting without any consideration that State may not have been subject to preclearance requirement). These decisions reveal a clear assumption by this Court that § 5 preclearanee is required where a noncovered State effects voting changes in covered counties.

Nor have we been alone in this assumption. The Department of Justice claims to have received more than 1,300 submissions seeking to preclear state laws from the seven States that are currently partially covered: California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota. Brief for United States as Amicus Curiae in Support of Juris. Statement 13, n. 3; see also 28 CFR pt. 51, App. (1997) (identifying partially covered States); see generally Perkins v. Matthews, 400 U. S. 379, 392 (1971) (noting that a particular interpretation of § 5 “was accepted by at least some affected States and political subdivisions, which had submitted such changes for the Attorney General’s approval”). In fact, cases before this and other federal courts reveal numerous instances in which interested parties have labored under the assumption that laws enacted by partially covered States require preclearanee before they take effect in covered jurisdictions. See, e. g., Shaw v. Reno, 509 U. S. 630, 634 (1993) (“Because the [North Carolina] General Assembly’s reapportionment plan affected the covered counties, the parties agree that § 5 applied”); Johnson v. De Grandy, 512 U. S. 997, 1001, n. 2.(1994) (Florida submitted statewide redistrieting law for preclearance because five counties , are covered); Haith v. Martin, 618 F. Supp. 410 (EDNC 1985) (suit over need to preclear North Carolina laws affecting covered jurisdictions without any claim by State that, as a noncovered jurisdiction, its laws are not subject to § 5), summarily aff’d, 477 U. S. 901 (1986); United States v. Onslow County, 683 F. Supp. 1021, 1024 (EDNC 1988) (covered North Carolina county submitted changes for pre-clearance, including change required by state statute, and court concluded that change required §5 preclearance). While this Court is not bound by its prior assumptions, see, e. g., Brecht v. Abrahamson, 507 U. S. 619, 630-631 (1993), the fact that courts and parties alike have routinely assumed a need for preelearance under the circumstances presented here supports our reading of § 5.

Finally, we find it especially relevant that the Attorney General also reads §5 as we do. According to the Government: “The Attorney General has consistently construed Section 5 to require preelearance when a covered political subdivision fseek[s] to administer’ an enactment of a partially covered State.” Brief for United States as Amicus Curiae 19; see also S. Eep. No. 97-417, pp. 11-12 (1982) (describing Attorney General’s objections to laws enacted by North Carolina and South Dakota, both partially covered States). Subject to certain limitations not implicated here, see, e. g., Presley v. Etowah County Comm’n, 502 U. S. 491, 508-509 (1992), we traditionally afford substantial deference to the Attorney General’s interpretation of § 5 in light of her “central role ... in formulating and implementing” that section. Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 39 (1978); see, e.g., NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 178-179 (1985) (“Any doubt that these changes are covered by § 5 is resolved by the construction placed upon the Act by the Attorney General, which is entitled to considerable deference”); Perkins v. Matthews, supra, at 390-391 (“Our conclusion that both the location of the polling places and municipal boundary changes come within §5 draws further support from the interpretation followed by the Attorney General in his administration of the statute”). The Attorney General’s interpretation thus provides significant additional support for our reading of § 5.

In light of the section’s plain language and the Attorney General’s interpretation to the same effect, we conclude that § 5’s preelearanee requirement applies to a covered county’s nondiseretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction. Accordingly, we need not reach appellants’ alternative claim that the countywide district is in fact the product of the County’s discretion.

B

The State also urges that requiring preclearance here would tread on rights constitutionally reserved to the States. The State contends, specifically, that § 5 could not withstand constitutional scrutiny if it were interpreted to apply to voting measures enacted by States that have not been designated as historical wrongdoers in the voting rights sphere. In the State’s view, because California has not been designated as a covered jurisdiction, its laws are not subject to §5 preelearanee.

We have recognized that the Act, which authorizes federal intrusion into sensitive areas of state and local policy-making, imposes substantial “federalism costs.” Miller v. Johnson, 515 U. S., at 926. The Act was passed pursuant to Congress’ authority under the Fifteenth Amendment, however, and we have likewise acknowledged that the Reconstruction Amendments by their nature contemplate some intrusion into areas traditionally reserved to the States. City of Rome v. United States, 446 U. S. 156, 179 (1980). As the Court recently observed with respect to Congress’ power to legislate under the Fourteenth Amendment, “[(legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.” City of Boerne v. Flores, 521 U. S. 507, 518 (1997) (internal quotation marks and citation omitted).

Moreover, we have specifically upheld the constitutionality of § 5 of the Act against a challenge that this provision usurps powers reserved to the States. See South Carolina v. Katzenbach, 383 U. S. 301, 334-335 (1966); see also City of Rome v. United States, supra, at 178-183. Nor does Katzenbach require a different result where, as here, § 5 is held to cover acts initiated by noncovered States. The Court in Katzenbach recognized that, once a jurisdiction has been designated, the Act may guard against both discriminatory animus and the potentially harmful effect of neutral laws in that jurisdiction. 383 U. S., at 333-334. In City of Rome, we thus expressly reaffirmed that, "under the Fifteenth Amendment, Congress may prohibit voting practices that have only a discriminatory effect.” 446 U. S., at 175; see also id., at 178-180 (upholding preelearance requirement against federalism challenge).

This is, moreover, precisely what the text of § 5 requires. The United States District Court for the District of Columbia may preclear a proposed voting change only if the court concludes that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote” on the basis of an impermissible classification. 42 U. S. C. § 1973c (emphasis added). The Attorney General employs the same standard in deciding whether to object to a proposed voting change. See 28 CFR § 51.52(a) (1997).

Recognizing that Congress has the constitutional authority to designate covered jurisdictions and to guard against changes that give rise to a discriminatory effect in those jurisdictions, we find no merit in the claim that Congress lacks Fifteenth Amendment authority to require federal approval before the implementation of a state law that may have just such an effect in a covered county. Section 5, as we interpret it today, burdens state law only to the extent that that law affects voting in jurisdictions properly designated for coverage. With respect to literacy tests, in fact, the Act already allows for the very action that the State claims would be unconstitutional here. At least until a 1970 amendment to the Act barring literacy tests nationwide, see 42 U. S. C. §1973aa, §4 had been used to ban these tests in covered jurisdictions even where the tests had been enacted by a noneovered State. See Gaston County v. United States, 395 U. S. 285, 287 (1969) (although State was not covered, “[u]se of the State’s literacy test within the county was ... suspended” when the county was designated a covered jurisdiction). Moreover, under § 4(b), a state-imposed literacy test may, as it did here, provide grounds for designating a county as a covered jurisdiction, notwithstanding the fact that the State as a whole is not covered.

The State seeks to bolster its constitutional argument by noting that partially covered States, like California, have no statutory ability to seek an exemption from the Act’s coverage. Section 4(a) permits a covered jurisdiction to seek declaratory relief exempting the jurisdiction from further coverage if it meets certain criteria. 42 U. S. C. § 1973b(a). Even if California were unable to use this “bailout” provision on behalf of its covered counties, but see United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S., at 148-149, n. 3 (noting that New York State sought exemptions on behalf of covered counties), this would not advance the State’s constitutional claim. Partially covered States facing suspension of their literacy tests in covered counties would have faced the same dilemma. In any event, there is no question that the County may avail itself of §4(a)’s bailout procedures.

In short, the Voting Rights Act, by its nature, intrudes on state sovereignty. The Fifteenth Amendment permits this intrusion, however, and our holding today adds nothing of constitutional moment to the burdens that the Act imposes.

The State also urges that certain of our prior decisions require a covered jurisdiction to exercise some discretion or poliey choice in order to trigger §5’s preclearanee requirements. In particular, the State relies on Young v. Fordice, 520 U. S. 273 (1997), and City of Monroe v. United States, 522 U. S. 34 (1997) (per curiam). The State, however, seeks to place more weight on these cases than they will bear. The State relies foremost upon Young, which involved a § 5 challenge to a covered State’s efforts to comply with voting changes mandated by the National Voters’ Registration Act. We concluded that changes brought about by efforts at compliance were themselves the result of discretionary decisions by the State, and these changes required §5 pre-clearance: “This Court has made clear that minor, as well as major, changes require preclearance. This is true even where, as here, the changes are made in an effort to comply with federal law, so long as those changes reflect policy choices made by state or local officials.” 520 U. S., at 284 (citations omitted). Like the District Court, the State seeks to invoke Young for the proposition that only the “policy choices” of covered jurisdictions are subject to the preclearance requirements. Young, however, involved an effort to comply with an Act of Congress, the very body that enacted the Voting Rights Act. Congress retains the authority to curtail the Act’s protections with subsequent legislation; alternatively, Congress may be assumed to have accounted for the policies underlying the Aet in rendering new law. Accordingly, the requirement that only “poliey choices... by state and local officials” would trigger the § 5 requirements in Young served merely to isolate for preclearanee those changes that are not wholly creatures of Congress.

The State also seeks to rely on City of Monroe, in which we held that preclearance of a voting change included in a statewide law empowered a municipality to implement that change, notwithstanding the city’s failure to preelear a change in its charter to the same effect. It is true that, in City of Monroe, the municipality was permitted to give effect to the statewide law without any need to preelear its effect at the city level. A second preclearance would have been wholly unnecessary, however. The Attorney General had already approved the change. 522 U. S., at 37 (“Since the Attorney General preeleared [the statewide law], Monroe may implement it”). Accordingly, City of Monroe does not stand for the proposition that covered jurisdictions are generally permitted to engage in the discretionless implementation of state laws without seeking preelearanee. The very change that the city of Monroe wished to enforce had already been preeleared.

Finally, we note that this Court has created an exception to the preelearanee requirement in certain eases involving federally court-ordered voting changes. As a general rule, voting changes crafted wholly by a federal district court in the first instance do not require preclearance. See Connor v. Johnson, 402 U. S. 690, 691 (1971) (per curiam). Thus, in Connor, the Court rejected a claim that §5 required pre-clearance of an electoral apportionment scheme developed and ordered by a Federal District Court in the course of litigation over the constitutionality of a Mississippi voting plan. Ibid. This narrow exception to the preelearanee requirement, however, is not grounded in the fact that a voting change is mandated by a noncovered entity, without room for discretion on the part of a covered jurisdiction. Rather, the exception grows largely from separation-of-powers concerns arising where a voting measure is the product of a federal court, specifically. As Justice Black noted in his dissent in Connor:

“Needless to say I completely agree with the holding of the majority that a reapportionment plan formulated and ordered by a federal district court need not be approved by the United States Attorney General or the United States District Court for the District of Columbia. Under our constitutional system it would be strange indeed to construe § 5... to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia.” Id., at 695.

We have since recognized limitations on the Connor exception. In McDaniel v. Sanchez, 452 U. S. 130 (1981), the District Court had sustained a constitutional challenge to a county apportionment scheme and had ordered the implementation of a new plan that the county had submitted to the court. In holding that the new plan should have been precleared before the District Court took any action on it, we noted that § 5 “requires that whenever a covered jurisdiction submits [to a district court] a proposal reflecting the policy choices of the elected representatives of the people . . . the preclearanee requirement of the Voting Rights Act is applicable.” Id., at 153. Nor does this requirement that there be some “policy choie[e]” by the local jurisdiction represent a general rule that a covered jurisdiction must exercise discretion to trigger the § 5 preclearance obligations. McDaniel may best be read merely as an effort to isolate and protect wholly court-developed plans from preclearanee. In any event, McDaniel applies only to voting changes embodied, in federal-court orders, and we need not further define the scope of its exception to the Connor rule here.

We hold that the County is obligated to seek preclearanee under §5 before giving effect to voting changes required by state law. Accordingly, the judgment of the United States District Court for the Northern District of California is reversed, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy,

-with whom The Chief Justice joins,

concurring in the judgment.

I would not decide in this case whether “§ 5’s preclearance requirement applies to a covered county’s nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction.” Ante, at 282. I think it quite possible, particularly in light of the constitutional concerns identified by Justice Thomas, that the phrase “seek to administer” in the statute requires that the covered jurisdiction exercise discretion or pursue its own policy aims before the obligation to preclear a voting change arises. See 14 Oxford English Dictionary 877 (2d ed. 1989) (defining “seek,” inter alia, as “[t]o make it one’s aim, to try or attempt to (do something)”). That interpretation draws some support from our decisions in Connor v. Johnson, 402 U. S. 690 (1971) (per curiam), and Young v. Fordice, 520 U. S. 273 (1997), which suggest that covered jurisdictions need not seek preclearance when a noncovered entity requires them to implement specific voting changes. See Connor v. Johnson, supra, at 691 (holding that covered jurisdictions need not preclear voting changes ordered by a federal court); Young v. Fordice, supra, at 290 (noting that a State’s adoption of the National Voter Registration Act’s registration system “is not, by itself, a change for the purposes of §5, for the State has no choice but to do so”).

I concur in the majority’s disposition of this case, however, because it is clear that the state enactments requiring the voting changes at issue in fact embodied the policy preferences and determinations of the county itself. See McDaniel v. Sanchez, 452 U. S. 130, 148-151 (1981) (voting changes contained in federal-court order require preclearance if they were proposed by the covered jurisdiction); Young v. Fordice, supra, at 285 (state changes made in an effort to comply with federal law require preclearanee if they “reflect the exercise of policy choice and discretion by [state] officials”)* For example, the 1979 state law which codified the county’s merger of its municipal court districts stated on its face that it was enacted at the county’s behest. 1979 Cal. Stats., eh. 694, §4 (“[T]his act is in accordance with the request of a local governmental entity or entities which desired legislative authority to carry out the program specified in this act”). In these circumstances, the county was required to seek preclearance of the voting changes codified by the state enactments.

Justice Thomas,

dissenting.

The majority today interprets the phrase “seek to administer” as used in §5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c, to require that a covered political subdivision seek federal approval of any law enacted by a noncovered State that effects a change with respect to voting in the covered political subdivision, so long as the covered political subdivision somehow implements the State’s law. I do not think the majority’s is the best reading of the statute; moreover, I think the majority’s interpretation is constitutionally doubtful. I would read § 5 to require preclearance only of those voting changes that are the direct product of a covered jurisdiction’s policy choices. Accordingly, I respectfully dissent.

I

As the majority notes, ante, at 269, Monterey County (County) is a covered jurisdiction under the Voting Rights Act, but the State of California is not. Section 5 of the Voting Rights Act provides that whenever a covered “State or political subdivision . . . shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” that differs from those in effect on the date that the State or subdivision became a covered jurisdiction, it must obtain federal approval of the new voting requirement. Although the County elected its municipal judges from separate districts at the time it became subject to the Act’s preclearance requirement, California law now requires that the County elect its judges from a single judicial district. This appeal, then, squarely puts before us for the first time the question whether §5 requires federal preclearance of a noncovered State’s laws effecting a change with respect to voting in one of its covered political subdivisions. the

The majority concludes that the County must preelear the State’s laws because it “seek[s] to administer” the state dis-tricting scheme. Ante, at 278. The Voting Rights Act does not define the phrase “seek to administer,” and the majority’s construction of the phrase is not plainly erroneous. “[A]dminister” can plausibly be read, in isolation, to encompass “nondiscretionary acts by covered jurisdictions endeavoring to comply with the superior law of the State.” Ante, at 279. But I do not think that the majority’s reading of the statute is the best one. “[S]eek to administer” must be read in light of its surrounding terms. Section 5 requires that a covered political subdivision obtain federal preclearance whenever it “shall enact or seek to administer” voting changes. The term “administer” is best understood when read in contrast to “enact.” In my view, Congress intended “administer” to reach those changes in voting qualifications, prerequisites, standards, practices, or procedures that a covered jurisdiction imposes in a way other than formal enactment. In other words, the statute is designed to ensure that a covered jurisdiction cannot cleverly avoid preelearanee requirements by the simple expedient of making voting changes by nonlegislative means.

The majority’s interpretation appears to render superfluous the “enact” prong of the statute. A person could not be “denied the right to vote for failure to comply with” a covered jurisdiction’s enactment affecting voting, as §5 prohibits absent federal preelearanee, unless the jurisdiction was administering its enacted laws. And the majority’s explanation that “seek” as it modifies “to administer” is a “temporal distinction,” ante, at 279, is unsatisfactory because it ignores that “shall” as it modifies “enact” is also a temporal limitation. Both prongs of the statute, not surprisingly, are written in terms of simple futurity, given §5’s prophylactic nature.

My interpretation of the statutory phrase also more accurately reflects the section’s purpose. As we have previously recognized, §5 was enacted as

“ ‘a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.... Congress therefore decided . . . “to shift the advantage of time and inertia from the perpetrators of the evil to its victi[m3,” Beer v. United States, 425 U. S. 130, 140 (1976) (quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)).

See also Reno v. Bossier Parish School Bd., 520 U. S. 471, 477 (1997) (quoting Beer); Miller v. Johnson, 515 U. S. 900, 926 (1995) (same). It follows that Congress intended to subject to federal preelearanee only the policy decisions made by jurisdictions that it found to be the “perpetrators of the evil” by means of the §4(b) coverage formula that the majority describes, ante, at 269-270. California has never been found to satisfy the coverage test and therefore is not one of the “perpetrators” that § 5 is designed to thwart. I therefore see no reason to believe that Congress intended § 5 to require federal approval of the State’s policy choices.

The Government, as amicus curiae supporting appellants, suggests that the State enacted its district consolidation legislation at the County’s suggestion, implying that the state judicial district consolidation statutes are the product of the County’s policy choices. Brief for United States as Amicus Curiae 22-25. I recognize that in McDaniel v. Sanchez, 452 U. S. 130 (1981), we required preclearanee of a court-ordered voting change in a covered jurisdiction because the plan that the court had ordered was submitted by, and reflected the policy choices of, that covered jurisdiction, even though we had decided, in Connor v. Johnson, 402 U. S. 690 (1971) (per curiam), that federal court-ordered voting changes need not be precleared. 452 U. S., at 147, 153. We stated that “[a]s we construe the congressional mandate, it requires that whenever a covered jurisdiction submits a proposal reflecting the policy choices of the elected representatives of the people . . . the preclearanee requirement of the Voting Rights Act is applicable.” Id., at 158. Although our holding in McDaniel is not obviously consistent with the text of § 5 as I would interpret it, it at least appears to be consistent with the poliey that we have said underlies § 5. See Beer, supra, at 140. Regardless of whether the legislative product of a noneovered jurisdiction would ever be subject to the preelearance requirement if it could be demonstrated that a state law is a product of collusion between state and local governments, the record in this ease does not support such a claim. And appellants did not make this argument, either in their complaint filed in the District Court or in their briefs before this Court.

II

Moreover, my reading of § 5 avoids the majority’s constitutionally doubtM interpretation. “[Wjhere a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909); see also Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 355, 356-359 (1998) (Scalia, J., concurring in judgment).

Section 5 is a unique requirement that exacts significant federalism costs, as we have recognized on more than one occasion. See Bossier Parish, supra, at 480; Miller v. Johnson, supra, at 926; see also City of Rome v. United States, 446 U. S. 156, 200 (1980) (Powell, J., dissenting); United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 141 (1978) (Stevens, J., dissenting); South Carolina v. Katzenbach, 383 U. S. 301, 358-360 (1966) (Black, J., concurring and dissenting). The section’s interference with state sovereignty is quite drastic — covered States and political subdivisions may not give effect to their policy choices affecting voting without first obtaining the Federal Government’s approval. As Justice Powell wrote in City of Rome, the section’s “encroachment is especially troubling because it destroys local control of the means of self-government, one of the central values of our polity.” 446 U. S., at 201.

Despite these serious and undeniable costs, we have twice upheld the preclearanee requirement as a constitutional exercise of Congress’ Fifteenth Amendment enforcement power, first in Katzenbach and again in City of Rome. In those cases, we compared Congress’ Fifteenth Amendment enforcement power to its broad authority under the Necessary and Proper Clause. See City of Rome, supra, at 175; Katzenbach, supra, at 326. But we have taken great care to emphasize that Congress’ enforcement power is remedial in nature. See City of Boerne v. Flores, 521 U. S. 507, 516-529 (1997); Katzenbach, supra, at 327-328,

There can be no remedy without a wrong. Essential to our holdings in Katzenbach and City of Rome was our conclusion that Congress was remedying the effects of prior intentional racial discrimination. In both cases, we required Congress to have some evidence that the jurisdiction burdened with preclearance obligations had actually engaged in such intentional discrimination. In Katzenbach, we recognized that Congress had "evidence of actual voting discrimination” in some jurisdictions. 383 U. S., at 330. In each of those jurisdictions, two characteristics were present — depressed voter turnout and the use of a test or device. We concluded that it was permissible for Congress to impose § 5 preclearanee requirements on the States and political subdivisions for which Congress had “more fragmentary evidence” of voting discrimination, id., at 329-330, where those two conditions (incorporated into the Act’s coverage formula) could be found to exist, “at least in the absence of proof that [such jurisdictions] have been free of substantial voting discrimination in recent years,” id., at 330. We also thought it quite important that “the Act provide[d] for termination of special statutory coverage at the behest of States and political subdivisions in which the danger of substantial voting discrimination ha[d] not materialized during the preceding five years.” Id., at 331. In City of Rome, we rejected the city’s argument that, because it had not employed any discriminatory practices over the relevant period, §5 was unconstitutional as applied. We thought that “because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper [for Congress] to prohibit changes that have a discriminatory impact.” 446 U. S., at 177 (emphasis added; footnote omitted).

The majority “findfs] no merit in the claim that Congress lacks Fifteenth Amendment authority to require federal approval before the implementation of a state law that may have [a discriminatory] effect in a covered county.” Ante, at 283-284. In my view, it overlooks our warning in City of Boerne that “[t)he appropriateness of remedial measures must be considered in light of the evil presented.” 521U. S., at 530; see also City of Rome, supra, at 211-219 (Rehnquist, J., dissenting). There has been no legislative finding that the State of California has ever intentionally discriminated on the basis of race, color, or ethnicity with respect to voting. Nor has the State been found to run afoul of the Act's overbroad coverage formula. We recognized in City of Boerne that “[preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." 521 U. S., at 532. But I do not see any reason to think that California's laws discriminate in any way against voting or that the State’s laws will be anything but constitutional. I therefore doubt that § 5 can be extended to require preclearance of the State’s enactments and remain consistent with the Constitution.

Moreover, it is plain that the majority’s reading of §5 raises to new levels the federalism costs that the statute imposes. If preclearance of a State’s voting law is denied when sought by a covered political subdivision, the State will be unable to develop a consistent statewide voting policy; its laws will be enforceable in noncovered subdivisions, but not in the covered subdivision. And under the majority’s reading of §5, noncovered States are forced to rely upon their covered political subdivisions to defend their interests before the Federal Government. The subdivision may not know the State’s interest, or may simply disagree with the State and therefore choose not to defend vigorously the State’s policy choices before the Federal Government. Indeed, in this case, the County represented that it “concurs with the essential arguments of the Appellants that state law affecting voting, insofar as such law may affect elections within a covered jurisdiction, must be preeleared . . . .” Brief for Appellee Monterey County 1.

The majority attempts to bolster its argument by suggesting that requiring the County to submit the State’s laws for preclearance is no more unusual than the Act’s suspension of literacy tests in covered jurisdictions. It points out that in some instances, literacy tests were required by the laws of noneovered jurisdictions, including California. Ante, at 284. I do not think, however, that the suspension of tests and the preelearance remedy can be compared. The literacy test had a history as a “notorious means to deny and abridge voting rights on racial grounds.” Katzenbach, supra, at 355 (Black, J., concurring and dissenting). Literacy tests were unfairly administered; whites were given easy questions, and blacks were given more difficult questions, such as “the number of bubbles in a soap bar, the news contained in a copy of the Peking Daily, the meaning of obscure passages in state constitutions, and the definition of terms such as habeas corpus” A. Thernstrom, Whose Votes Count?, Affirmative Action and Minority Voting Rights 15 (1987). When we upheld the constitutionality of the suspension provision of the Voting Rights Act in Katzenbach, we indicated that the tests had actually been employed to disenfranchise black voters. 383 U. S., at 333-334. Later in Oregon v. Mitchell, 400 U. S. 112 (1970), we upheld the national ban on the use of such tests — even though we recognized that they were not facially unconstitutional — as a proper means of preventing purposeful discrimination in the application of the tests and remedying prior constitutional violations by state and local governments in the education of minorities. Congress’ suspension of tests, then, was a focused remedy directed at one particular prerequisite to voting. In contrast, the preelearance requirement presumes that a voting change — no matter how innocuous — is invalid, and prevents its enforcement until the Federal Government gives its approval.

* * *

I would interpret §5 only to require preclearance of a covered jurisdiction’s changes affecting voting qualifications, prerequisites, standards, practices, or procedures, whether made by formal enactment or otherwise. In my view, this is the best interpretation of the statute and it avoids the grave constitutional concerns that the majority’s contrary interpretation raises. I respectfully dissent.

      County Ordinance No. 1917, adopted on October 3, 1972, consolidated two justice court districts. App. to Juris. Statement 56-57. On November 13,1973, County Ordinance No. 1999 consolidated another two justice court districts. Id., at 58-59. County Ordinance No. 2139, adopted on January 13, 1976, merged three justice court districts with other judicial districts. Id., at 62-64. Finally, County Ordinance No. 2212, adopted on September 7,1976, added a new justice court district. Id., at 68-70.

       For convenience, I use the shorthand “voting change” or “change with respect to voting” throughout. But I adhere to my view that not all changes affecting voting are covered by §§2 and 5 of the Voting Rights Act, as those sections are properly understood. See Holder v. Hall, 512 U. S. 874, 891, 893-903 (1994) (opinion concurring in judgment).

       Even were agree ute, I am not convinced that the County implements the State’s district-ing laws simply by administering elections, as the majority apparently believes.

       I recognize that we have interpreted §5 to reach entities that did not obviously fall within the definition of covered “State or political subdivision” in prior cases. For example, in United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110 (1978), we held that although the city of Sheffield, Alabama, was not a “political subdivision” wider the Act, it was nevertheless subject to §5’s preclearance requirements because it was a “political unit” of the covered State. Id., at 127-128. Whether Sheffield was correct as an original matter, the “top-down” approach to coverage that it announced is simply not implicated in this case; appellants argue for a “bottom-up” approach to coverage questions that I do not believe the reasoning of Sheffield supports. And in Morse v. Republican Party of Va., 517 U. S. 186 (1996), the judgment of the Court was that §5 could be extended to reach the activities of political parties in covered States. I adhere to the views that I expressed in dissent, but at most, that case stands for the proposition that for purposes of §5 preclearance, “State” in some (but not all) instances is “coextensive with the constitutional doctrine of state action.” Id., at 265 (THOMAS, J., dissenting). Of course, this case requires us to interpret the phrase “seek to administer,” not §5’s “State or political subdivision” language.

       For somewhat similar reasons, even if I agreed with the majority’s interpretation of the statute, I would still affirm the District Court’s dismissal of appellants’ first amended complaint, which did not ask that the County be ordered to preclear the State’s laws. The only coverage question the complaint raised was whether the County’s antecedent consolidation ordinances needed to be preeleared. App. to Juris. Statement 83-104.

       The Fifteenth Amendment provides:
      “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of
      race, color, or previous condition of servitude.
      “Section 2. The Congress shall have power to enforce this article by appropriate legislation.”

       Although City of Boerne involved the Fourteenth Amendment enforcement power, we have always treated the nature of the enforcement powers conferred by the Fourteenth and Fifteenth Amendments as coextensive. See, e. g., City of Boerne, 521 U. S., at 518-528; James v. Bowman, 190 U. S. 127 (1903).


source: Caselaw Access Project

author: Justice Ginsburg

license: Public Domain

text:
    HUMANA INC. et al. v. FORSYTH et al.
    No. 97-303.
    Argued November 30,1998
    Decided January 20, 1999

      James W. Colbert Ill argued the cause for petitioners. With him on the briefs were Robert N. Eccles, Linda J. Smith, Neil K. Gilman, and Dennis L. Kennedy.

      G. Robert Blakey argued the cause for respondents. With him on the brief was J. Randall Jones.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Jeffrey A. Lamken, Anthony J. Steinmeyer, and Howard S. Scher.

         James F. Fitzpatrick- and Nancy L. Perkins filed a brief for the Alliance of American Insurers et al. as amici rnriae urging reversal.
      Briefs of amici rnriae urging affirmance were filed for the National Association of Insurance Commissioners by Gregory B. Stites; for the National Fair Housing Alliance by Stephen Mark Dane; for Trial Lawyers for Public Justice, P. C., by Sarah Posner; for United Policyholders by Eugene R. Anderson and John A. MacDonald; and for Betty Cordial et al. by Ellen G. Robinson and Peter G. Gallanis.

        Franklin G. Burt filed a brief for the Consumer Credit Insurance Association as amicus curiae.

   Justice Ginsburg

delivered the opinion of the Court.

This ease concerns regulation of the business of insurance by the States, as secured by the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. § 1011 et seq., and the extent to which federal legislation, specifically, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1961 et seq., is compatible with state regulation. The controversy before us stems from a scheme employed by petitioner Humana Health Insurance of Nevada, Inc. (Humana Insurance), a group health insurer, to gain discounts for hospital services which the insurer did not disclose and pass on to its policy beneficiaries. The scheme is alleged to violate both Nevada law and RICO. Under the McCarran-Ferguson Act, the federal legislation may be applied if it does not “invalidate, impair, or supersede” the State’s regulation. 15 U. S. C. § 1012(b).

The federal law at issue, RICO, does not proscribe conduct that the State’s laws governing insurance permit. But the federal and state remedial regimes differ. Both provide a private right of action. RICO authorizes treble damages; Nevada law permits recovery of compensatory and punitive damages. We hold that RICO can be applied in this ease in harmony with the State’s regulation. When federal law is applied in aid or enhancement of state regulation, and does not frustrate any declared state policy or disturb the State’s administrative regime, the MeCarran-Ferguson Act does not bar the federal action.

I

Plaintiffs in the District Court, respondents in this Court, are beneficiaries of group health insurance policies issued by Humana Insurance. Between 1985 and 1988, plaintiffs-respondents received medical care from the Humana Hospital-Sunrise, an acute care facility owned by codefend-ant (now eopetitioner) Humana Inc. Humana Insurance agreed to pay 80% of the policy beneficiaries’ hospital charges over a designated deductible. The beneficiaries bore responsibility for payment of the remaining 20%. But pursuant to a concealed agreement, the complaint in this action alleged, the hospital gave Humana Insurance large discounts on the insurer’s portion of the hospital’s charges for care provided to the policy beneficiaries. As a result, Humana Insurance paid significantly less than 80% of the hospital’s actual charges for the care that policy beneficiaries received, and the beneficiaries paid significantly more than 20% of those charges.

The employee beneficiaries brought suit in the United States District Court for the District of Nevada, alleging that Humana Insurance and Humana Inc. violated RICO through a pattern of racketeering activity consisting of mail, wire, radio, and television fraud. Defendants Humana Insurance and Humana Inc. moved for summary judgment, citing §2(b) of the McCarran-Ferguson Act, which provides:

“No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance.” 15 U. S. C. § 1012(b).

The District Court granted the motion. In that court’s view, RICO’s private remedies, including the federal statute’s treble damages provision, 18 U. S. C. § 1964(c), so exceeded Nevada’s administrative penalties for insurance fraud, see infra, at 311-812, that applying RICO to the alleged conduct would have been “tantamount to allowing Congress to intercede in an area expressly left to the states under the McCarran-Ferguson Act,” 827 F. Supp. 1498, 1521-1522 (Nev. 1993).

The Ninth Circuit reversed in relevant part. See 114 F. 3d 1467, 1482 (1997). In Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F. 3d 1486 (1995), a decision handed down after the District Court rejected the policy beneficiaries’ right to sue under RICO in this case, the Court of Appeals adopted a “direct conflict” test for determining when a federal law “invalidated, impair[s], or superseded” a state law governing insurance. As declared in Merchants Home, the McCarran-Ferguson Act does not preclude “application of a federal statute prohibiting acts which are also prohibited under a state’s insurance laws.” Id., at 1492. Guided by Merchants Home, and assuming that Nevada law provided for administrative remedies only, the Ninth Circuit held that the McCarran-Ferguson Act did not bar suit under RICO by the Humana Insurance policy beneficiaries. See 114 F. 3d, at 1480. Circuit courts have divided on the question presented: Does a federal law, which proscribes the same conduct as state law, but'provides materially different remedies, “impair” state law under the McCarran-Ferguson Act? We granted certiorari to address that question. 524 U. S. 936 (1998).

1 — 1

Prior to our decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944), we had consistently held that the business of insurance was not commerce. See, e. g., Paul v. Virginia, 8 Wall. 168, 183 (1869) (“Issuing a policy of insurance is not a transaction of commerce.”); see also South-Eastern, 322 U. S., at 544, n. 18 (collecting cases relying on the Paul generalization). The business of insurance, in consequence, was largely immune from federal regulation. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 539 (1978) (“[T]he States enjoyed a virtually exclusive domain over the insurance industry.”). In SouthEastern, we held for the first time that an insurance company doing business across state lines engages in interstate commerce. See 322 U. S., at 553. In accord with that holding, we further decided that the Sherman Act applied to the business of insurance. See id., at 553-562.

Concerned that our decision might undermine state efforts to regulate insurance, Congress in 1945 enacted the McCarran-Ferguson Act. Section 1 of the Act provides that “continued regulation and taxation by the several States of the business of insurance is in the public interest,” and that “silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.” 15 U. S. C. § 1011. In §2(b) of the Act — the centerpiece of this case — Congress ensured that federal statutes not identified in the Act or not yet enacted would not automatically override state insurance regulation. Section 2(b) provides that when Congress enacts a law specifically relating to the business of insurance, that law controls. See § 1012(b). The subsection further provides that federal legislation general in character shall not be “construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance.” Ibid.

The McCarran-Fergus on Act thus precludes application of a federal statute in face of state law “enacted ... for the purpose of regulating the business of insurance,” if the federal measure does not “specifically relat[e] to the business of insurance,” and would “invalidate, impair, or supersede” the State’s law. See Department of Treasury v. Fabe, 508 U. S. 491, 501 (1993). RICO is not a law that “specifically relates to the business of insurance.” This case therefore turns on the question: Would RICO’s application to the employee beneficiaries’ claims at issue “invalidate, impair, or supersede” Nevada’s laws regulating insurance?

The term “invalidate” ordinarily means “to render ineffective, generally without providing a replacement rule or law.” Brief for United States as Amicus Curiae 17, n. 6 (citing Carter v. Virginia, 321 U. S. 131, 139 (1944) (Black, J., concurring)). And the term “supersede” ordinarily means “to displace (and thus render ineffective) while providing a substitute rule.” Brief for United States as Amicus Curiae 17, n. 6 (citing Illinois Commerce Comm’n v. Thomson, 318 U. S. 675, 682 (1943)). Under these standard definitions, RICO’s application to the policy beneficiaries’ complaint would neither “invalidate” nor “supersede” Nevada law.

The key question, then, is whether RICO’s application to the scheme in which the Humana defendants are alleged to have collaborated, to the detriment of the plaintiff policy beneficiaries, would “impair” Nevada’s law The answer would be “no” were we to read “impair,” as the policy beneficiaries suggest, to be “interehangeabl[e]” with “invalidate” and “supersede.” Brief for Respondents 14; see Brief for United States as Amicus Curiae 17, n. 6 (describing the use of the three terms as an “instane[e] of lawyerly iteration”). The answer would also be “no” if we understood “impair” to mean “the displacement of some portion of a statute or its preclusion in certain contexts.” Id., at 14. This is so because insurers can comply with both RICO and Nevada’s laws governing insurance. These laws do not directly conflict. The acts the policy beneficiaries identify as unlawful under RICO are also unlawful under Nevada law. See infra, at 311-813.

On the other hand, the answer would be “yes” were we to agree with Humana Insurance and Humana Inc. that the word “impair,” in the MeCarran-Ferguson Act context, signals the federal legislators’ intent “to withdraw Congress from the field [of insurance] absent an express congressional statement to the contrary.” Brief for Petitioners 10. Under that reading, “impair” would eonvey “a very broad proscription against applying federal law where a state has regulated, or chosen not to regulate, in the insurance industry.” Merchants Home, 50 F. 3d, at 1491 (emphasis in original). See also Reply Brief 4 (MeCarran-Ferguson Act “precludes federal lav/ that is at material variance with state insurance law — as to substantive prohibitions, procedures or remedies.”).

We reject any suggestion that Congress intended to cede the field of insurance regulation to the States, saving only instances in which Congress expressly orders otherwise. If Congress had meant generally to preempt the field for the States, Congress could have said, as the Ninth Circuit noted: “No federal statute [that does not say so explicitly] shall be construed to apply to the business of insurance.” Merchants Home, 50 F. 3d, at 1492 (emphasis in original) (internal quotation marks omitted); see Brief for United States as Amicus Curiae 24 (“The Act does not declare that ‘No Act of Congress shall apply to the business of insurance unless such Act specifically relates thereto.’ ”). Alternatively, Congress could have provided, as it did with respect to the Sherman, Clayton, and Federal Trade Commission Acts, see 15 U. S. C. § 1012(b), that federal legislation generally, or RICO in particular, would be “applicable to the business of insurance [only] to the extent that such business is not regulated by State Law,” ibid, (emphasis added).

Moreover, §2(b)’s seeond prohibition bears attention in this regard. That proscription, barring construction of federal statutes to “invalidate, impair, or supersede” “any [state] law... which imposes a fee or tax upon [the business of insurance],” belies any congressional intent to preclude federal regulation merely because the regulation imposes liability additional to, or greater than, state law. Were this not so, federal law would “impair” state insurance laws imposing fees or taxes whenever federal law imposed additional fees or greater tax liability. Under our federal system of dual taxation, however, it is scarcely in doubt that “generally applicable federal fees and taxes do not ‘invalidate, impair, or supersede’ state insurance taxes and fees within the meaning of Section 2(b) where nothing precludes insurers from paying both.” Brief for United States as Amicus Curiae 26.

While we reject any sort of field preemption, we also reject the polar opposite of that view, i. e., that Congress intended a green light for federal regulation whenever the federal law does not collide head on with state regulation. The dictionary definition of “impair” is “[t]o weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner.” Black’s Law Dictionary 752 (6th ed. 1990). The following formulation seems to us to capture that meaning and to construe, most sensibly, the text of §2(b): When federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State’s administrative regime, the McCarran-Ferguson Act does not preclude its application. See Brief for National Association of Insurance Commissioners as Amicus Curiae 6-7.

Our decision in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), is similar in tenor. In that case, we considered whether a New York law forbidding discrimination in employee benefit plans on the basis of pregnancy was preempted by ERISA. State agencies and officials, appellants in Shaw, argued that the State’s law was not preempted; they relied on ERISA § 514(d), which provides that ERISA’s preemption clause shall not be “construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.” 29 U. S. C. § 1144(d). The state agencies and officials maintained that preempting the state law would impair the administration of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. §2000e et seq., as amended in 1978 by the Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C. § 2000e(k), for under the enforcement scheme Title VII accommodates, state remedies serve to promote compliance with federal antidiscrimination prescriptions. See 463 U. S., at 101-102.

We held in Shaw that the New York law was preempted only to the extent it prohibited practices lawful under Title VII. See id., at 103. To the extent the New York law prohibited practices also prohibited under federal law, we explained, the New York law was not preempted; the blanket preemption urged by the employer appellees in Shaw, we pointed out, would “impair” Title VII by “frustrat[ing] the goal of encouraging joint state/federal enforcement of [that federal measure].” Id., at 102. Shaw thus supports the view that to “impair” a law is to hinder its operation or “frustrate [a] goal” of that law.

Our standard accords with SEC v. National Securities, Inc., 393 U. S. 453 (1969). In that case, we upheld, in face of a McCarran-Ferguson Act challenge, the Securities and Exchange Commission's authority to unwind an insurance company merger that the Arizona Director of Insurance had approved. Our opinion pointed to the absence of any “direct conflict”: “Arizona has not commanded something which the Federal Government seeks to prohibit. It has permitted respondents to consummate the merger; it did not order them to do so.” Id., at 463. But that statement did not stand alone. We also observed that “any impairment’ in [that] case [was] a most indirect one.” Ibid. And we concluded: “The paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders.” Ibid. There, as here, federal law did not “directly conflict with state regulation,” application of federal law did not “frustrate any declared state policy,” nor did it “interfere with a State’s administrative regime.” Supra, at 310.

Applying the standard just announced to the facts of this case, we conclude that suit under RICO by policy beneficiaries would not “impair” Nevada law and therefore is not precluded by the McCarran-Ferguson Act. Nevada provides both statutory and common-law remedies to check insurance fraud. The Nevada Unfair Insurance Practices Aet, Nev. Rev. Stat. §686A.010 et seq. (1996), patterned substantially on the National Association of Insurance Commissioners’ model Unfair Trade Practices Act, is a comprehensive administrative scheme that prohibits various forms of insur-anee fraud and misrepresentation. Under this legislation, Nevada’s Insurance Commissioner has the authority to issue charges if there is reason to believe the Act has been violated, see §686A.160, and may issue cease and desist orders and administer fees, see § 686A.183.

Victims of insurance fraud may also pursue private actions under Nevada law. The Unfair Insurance Practices Act authorizes a private right of action for violations of a number of unfair insurance practices, including “[misrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to any coverage,” § 686A.310(l)(a). See § 686A.310(2) (“In addition to any rights or remedies available to the commissioner, an insurer is liable to its insured for any damages sustained by the insured as a result of the commission of any act set forth in subsection 1 as an unfair practice.”). Moreover, the Act is not hermetically sealed; it does not exclude application of other state laws, statutory or decisional. Specifically, Nevada law provides that an insurer is under a common-law duty “to negotiate with its insureds in good faith and to deal with them fairly.” Ainsworth v. Combined Ins. Co. of Am., 104 Nev. 587, 592, 763 P. 2d 673, 676 (1988); see United States Fidelity & Guaranty Co. v. Peterson, 91 Nev. 617, 620, 540 P. 2d 1070, 1071 (1975) (recognizing tort action against insurance company for breach of implied covenant of good faith and fair dealing).

Furthermore, aggrieved insured parties may be awarded punitive damages if a jury finds clear and convincing evidence that the insurer is guilty of “oppression, fraud or malice.” Nev. Rev. Stat. §42.005(1) (1995). Nevada’s punitive damages statute places certain limits on those damages — three times the amount of compensatory damages if they are more than $100,000, and $300,000 if compensa-torios are less than $100,000. See §§42.005(l)(a), (b). But the same law adds that these limits do not apply to claims against “[a]n insurer who acts in bad faith regarding its obligations to provide insurance coverage.” §42.005(2)(b). Accordingly, plaintiffs seeking relief under Nevada law may be eligible for damages exceeding the treble damages available under RICO.

In sum, we see no frustration of state policy in the RICO litigation at issue here. RICO’s private right of action and treble damages provision appears to complement Nevada’s statutory and common-law claims for relief. In this regard, we note that Nevada filed no brief at any stage of this lawsuit urging that application of RICO to the alleged conduct would frustrate any state policy, or interfere with the State’s administrative regime. Cf. NAACP v. American Family Mut. Ins. Co., 978 F. 2d 287, 297 (CA7 1992) (“No official of Wisconsin has appeared in this litigation to say that a federal remedy under the Fair Housing Act would frustrate any state policy.”)- We further note that insurers, too, have relied on the statute when they were the fraud victims. See, e. g., Aetna Casualty Surety Co. v. P & B Autobody, 43 F. 3d 1546, 1551 (CA1 1994); see also Brief for United Policyholders as Amicus Curiae 19-21.

* * *

Because RICO advances the State’s interest in combating insurance fraud, and does not frustrate any articulated Nevada policy, we hold that the McCarran-Ferguson Act does not block the respondent policy beneficiaries’ recourse to RICO in this ease. Accordingly, for the reasons stated in this opinion, the judgment of the Court of Appeals for the Ninth Circuit is

Affirmed.

       These discounts were alleged to have ranged between 40% and 96%. See 827 F. Supp. 1498, 1503 (Nev. 1993). For example, in a given case, Humana Insurance might have received a bill for only $550 on a $5,000 gross hospital charge. The beneficiary, however, would have received a bill for 20% of the undiseounted rate of $5,000, or $1,000. Humana Insurance would have paid only 35% of the total bill ($550 out of $1,550), while the beneficiary would have paid 65%. Under the 80%/20% arrangement, Humana Insurance should have paid $1,240 (80% of $1,550), while the beneficiary should have paid $310. See id., at 1508; Brief for United States as Amicus Curiae 5-6.

       State investigation of the scheme, launched by Nevada's Attorney General, terminated when Humana Insurance and Nevada’s Insurance Commissioner entered into a consent decree under which the insurer paid a fine of $50,000.

       The complaint separated plaintiffs into two classes, a “Co-Payor Class” comprising employee beneficiaries, and a “Premium Payor Class” comprising employers who purchased the policies. See 114 F. 3d 1467, 1472 (CA9 1997). Only the employees’ claims have been placed at issue here.

       The complaint also presented claims under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., and §2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 2. The disposition of those claims is not germane to the issue on which this Court’s review was sought and granted.

       Both the District Court and the Court of Appeals inaccurately projected Nevada law as allowing for administrative remedies only. See infra, at 311-313.

       Compare Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F. 3d 1486, 1492 (CA9 1995), and NAACP v. American Family Mut. Ins. Co., 978 F. 2d 287, 297 (CA7 1992) (“[SJtate and federal rules that are substantively identical but differ in penalty do not conflict with or displace each other.”), with Doe v. Norwest Bank Minnesota, N. A., 107 F. 3d 1297, 1307 (CA8 1997) (“[T]he intrusion of RICO’s substantial damage provisions into a state’s insurance regulatory program may so impair the state law as to bar application of RICO.”), and Kenty v. Bank One, Columbus, N. A., 92 F. 3d 384, 392 (CA6 1996) (“The different liability under Ohio law for violations, as well as different standards of proof necessary to demonstrate misrepresentations, means that RICO does impair the ability of Ohio to regulate [unfair and deceptive acts].”).

       Section 2(b) also provides that “after June 30,1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended [15 U. S. C. 41 et seq.], shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.” 15 U. S. C. § 1012(b). Section 4 of the Act provides that “[n]othing contained in this chapter shall be construed to affect in any manner the application to the business of insurance of the Act of July 5, 1935, as amended, known as the National Labor Relations Act [29 U. S. C. 151 et seq.], or the Act of June 25,1938, as amended, known as the Fair Labor Standards Act of 1938 [29 U. S. C. 201 et seq.], or the Act of June 5,1920, known as the Merchant Marine Act, 1920 [46 App. U. S. C. 861 et seq.].” § 1014.

       See 4 National Association of Insurance Commissioners, Model Laws, Regulations and Guidelines 880-1 (1995).

       See, e. g., Nev. Rev. Stat. §686A.030 (1996) (misrepresentation and false advertising); § 686A.040 (publication of false information); § 686A.070 (falsification of records and financial statements); §§686A.281-686A.289 (fraudulent claims); § 686A.291 (insurance fraud).

       The existence of private rights of action under state law dilutes the force of the assertion, made in an amicus brief, that a decision affirming the Ninth Circuit’s judgment would cause insurers to be reluctant to settle with state commissioners to avoid compromising defenses in RICO litigation. See Brief for Consumer Credit Insurance Association as Amicus Curiae 5. Presumably, insurers would be equally reluctant to settle with state commissioners to avoid compromising defenses in state litigation.

       See also Nev. Rev. Stat. §42.007(2) (1996) (limiting punitive damages liability by employers for wrongful acts of employees except in “an action brought against an insurer who acts in bad faith regarding its obligations to provide insurance coverage”).

       At oral argument, counsel for petitioners Humana Insurance and Hu-mana Inc. suggested that application of RIGO would impair state law, even though that law provided for punitive damages, because under Nevada law, punitive damages may not be imposed when doing so would threaten the solvency of the defendant. Tr. of Oral Arg. 5-6. While Nevada law does appear to prohibit punitive damages that would render a defendant insolvent, see Nevada Cement Co. v. Lemler, 89 Nev. 447, 452, 514 P. 2d 1180, 1183 (1973) (noting that “(fideally the punitive allowance should be in an amount that would promote the public interest without financially annihilating the defendant” and that “the wrongdoer may be punished, but not destroyed”), the record contains no evidence of insolvency here. See Tr. of Oral Arg. 21.


author: Per Curiam.

text:
    CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al. v. FELZEN et al.
    No. 97-1732.
    Argued January 11, 1999
    Decided January 20, 1999

      Michael K. Kellogg argued the cause for petitioners. With him on the briefs were Mark C. Hansen, Neil M. Gor-such, and Sean A. Lev.

      David C. Frederick argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Waxman, Deputy Solicitor General Kneedler, Harvey J. Goldschmid, David M. Becker, Paul Gonson, Jacob H. Stillman, and Eric Summergrad.

      John G. Kester argued the cause for respondents and filed a brief for respondent Archer Daniels Midland Co. With him on the brief was George A. Borden. Thom W. Moss filed a brief for respondent Directors of Archer Daniels Midland Co. Terry Rose Saunders, Robert M. Roseman, and Henry P. Monaghan filed a brief for respondent Paul Felzen et al.

      Briefs of amici curiae urging reversal were filed for Barclays Global Investors, N. A., et al. by Andrew N. Vollmer, Andrew B. Weissman, and Joseph A. Grundfest; for the Council of Institutional Investors by Carter G. Phillips, Bradford A. Berenson, and David W. Jones; and for Public Citizen, Inc., et al. by Leslie Brueclcner, Brian Wolfman, and Alan B. Morrison.

        Daniel J. Popeo filed a brief for the Washington Legal Foundation as amicus curiae urging affirmance. Leonard N. Sosnov filed a brief for Lawrence A. Hamermesh et al. as amici curiae.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice O’Connor took no part in the consideration or decision of this case.