source: Caselaw Access Project

author: Justice White

license: Public Domain

text:
    NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. HAMPTON COUNTY ELECTION COMMISSION et al.
    No. 83-1015.
    Argued November 28, 1984
    Decided February 27, 1985

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell and Rehnquist, JJ., concurred in the judgment.

      Armand Derfner argued the cause for appellants. With him on the briefs were JohnR. Harper II, Thomas I. Atkins, J. LeVonne Chambers, Lani Guinier, and Eric Schnapper.

      David A. Strauss argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Turner, Barbara E. Etkind, and Jessica Dunsay Silver.

      Trevd G. Ashworth, Senior Assistant Attorney General of South Carolina, argued the cause for appellees and filed a brief for appellees Hampton County Election Commission et al. With her on the brief were T. Travis Medlock, Attorney General, and J. Emory Smith, Jr., Assistant Attorney General. Bruce E. Davis and Karen LeCraft Henderson filed a brief for appellees Hampton County School District No. 1 et al.
   Justice White

delivered the opinion of the Court.

This appeal challenges a three-judge District Court’s construction and application of §5 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U. S. C. § 1973c. That section provides that certain jurisdictions, including the one in which this case arose, may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General. The statute further provides that once a proposed change has been submitted to the Attorney General, he has 60 days in which to object. If an objection is interposed, the submitting authority may request reconsideration. 28 CFR § 51.44 (1984). Such a request triggers another 60-day period for the Attorney General to decide whether to continue or withdraw his objection. § 51.47. The District Court held that §5 did not require the changes in election practices involved here to be cleared by the Attorney General prior to their implementation. We noted probable jurisdiction, 467 U. S. 1250 (1984), and now reverse that judgment.

I — I

As of November 1, 1964, the Hampton County, South Carolina, public schools were governed by appointed officials and an elected Superintendent of Education. The county comprises two school districts, School District No. 1, where the vast majority of white students live, and School District No. 2, which is predominantly black. Each District was governed by a separate six-member Board of Trustees. These trustees were appointed by a six-member County Board of Education, which in turn was appointed by the county legislative delegation.

On February 18, 1982, apparently in an attempt to facilitate consolidation of these two School Districts, the South Carolina General Assembly enacted Act No. 547. This statute provided that, beginning in 1983, the six members of the County Board of Education were to be elected at large rather than appointed. The first election for the new Board was to be held simultaneously with the general election in November 1982, and prospective candidates were required to file with the Election Commission at least 45 days before the election. Pursuant ter §5 of the Voting Rights Act, the State submitted Act No. 547 for the approval of the Attorney General, who received it on February 27. On April 28, the Attorney General informed the State that he had no objection to the change in question.

On April 9, however, before the Attorney General had approved Act No. 547, the Governor of South Carolina signed Act No. 549, which was designed to supersede Act No. 547. Act No. 549 abolished the County Board of Education and the County Superintendent, devolving their duties upon the District Boards of Trustees, which were to be elected separately by each District. Like Act No. 547, Act No. 549 scheduled the first trustee election to coincide with the November 1982 general election. Candidates were required to file between August 16 and August 31. Implementation of the Act was made contingent upon approval in a referendum to be held in May 1982.

The State did not submit Act No. 549 to the Attorney General for clearance until June 16, 1982, 22 days after it was approved in the referendum and 68 days after it had been enacted. As of August 16 — the opening date of the filing period under Act No. 549 — no response had yet been received from the Attorney General. Nevertheless, the County Election Commission began accepting filings for elections to be held under Act No. 549. On August 23, the Attorney General interposed an objection. He informed the State that it had not sustained its burden of showing that the proposal to eliminate the County Board of Education did not have a discriminatory purpose or effect. The Attorney General noted that “the county board has been particularly responsive to the interests and needs of the black community in Hampton County and consistently has appointed bi-racial representation on the local boards of trustees for both School District 1 and School District 2.”

Because the State was contemplating requesting the Attorney General to reconsider this objection, the County Election Commission continued to accept filings under Act No. 549 through the end of the designated filing period, August 31. On that date, the State officially requested reconsideration. At the same time, the Election Commission began accepting filings under Act No. 547, in case the Attorney General refused to withdraw his objection to Act No. 549. On November 2, the date of the general election, the Attorney General had not yet responded to the request for reconsideration, and elections for County Board members were held pursuant to Act No. 547. No elections were held pursuant to Act No. 549.

On November 19, the Attorney General withdrew his objection to Act No. 549. The objection had been based primarily on the possibility that the County Board, which the Act would abolish, might have consolidated the two School Districts, but, upon reappraising South Carolina law, the Attorney General concluded that the Board lacked authority to approve such a consolidation. Therefore, its elimination would not have a potentially discriminatory impact.

The effect of the Attorney General’s clearance of Act No. 549 was to render Act No. 547 — and the November elections held pursuant to it — null and void. In response to a request for advice, the South Carolina Attorney General informed the County Election Commission in January that Act No. 549 was now in effect and that an election for school district trustees should be held “as soon as possible.” The State Attorney General further opined that there was no reason to reopen the filing period, “as only the date of the election has changed.” Accordingly, the Commission set March 15, 1983, as election day.

On March 11, appellants, two civil rights organizations and several residents of Hampton County, filed suit in the United States District Court for the District of South Carolina seeking to enjoin the election as illegal under §5 of the Voting Rights Act. The defendants were the County Election Commission, the two School Districts, and various county officials. The complaint identified a number of alleged “changes” in election procedure, including the scheduling of an election at a time other than that specified in the statute, and the use of the August filing period for the March election. A preliminary injunction was denied, and the election took place as scheduled. Subsequently, a three-judge panel denied a permanent injunction and declaratory relief, holding that no violation of §5 of the Voting Rights Act had occurred. The court reasoned that, although Act No. 549 itself was a “change” under the Act, the scheduling of the election and the filing period were simply “ministerial acts necessary to accomplish the statute’s purpose . . . , and thus did not require preclearance.” App. to Juris. Statement 9a. In the alternative, the court held that even if these acts did constitute “changes,” they had now been “precleared along with the remaining provisions of Act No. 549.” Ibid. That this “preclearance” did not occur until after the filing period had been held was not considered dispositive. The court interpreted Berry v. Doles, 438 U. S. 190 (1978), to stand for the proposition that after-the-fact federal approval under §5 might retroactively validate a change in voting procedures.

II

Appellants contend that the opening of the August filing period before preclearance, and the scheduling of an election in March after the Attorney General had approved only a November election date, are changes that come within the scope of § 5. Appellees, echoing the rationale of the District Court, maintain that opening the filing period as required by Act No. 549 — albeit before the Act had been approved — was merely a preliminary step in its implementation. If the Attorney General had ultimately disapproved Act No. 549, the county would not have held an election under it, and the filing period would have become a nullity. Because Act No. 549 was in fact cleared, the filing period it specified was necessarily cleared as well. The alteration of the date of the election, according to appellees, was merely an “unfreezing” of a process that had been temporarily suspended by the operation of the Voting Rights Act. Although appellees concede that a legislatively enacted change in the date of an election is covered by the Act, they distinguish the change at issue here because it was required only by the Attorney General’s failure to approve Act No. 549 before the scheduled election date, and because it was undertaken only to effect the initial implementation of the statute.

We need not decide whether a jurisdiction covered by § 5 may ever open a filing period under a statute that has not yet been precleared. In this case, Hampton County not only opened the filing period for School District trustees before preclearance, but it also scheduled the election for a date four months later than that approved by the Attorney General. Thus the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election.

These changes cannot fairly be characterized as “ministerial” in light of the sweeping objectives of the Act. The Voting Rights Act was aimed at “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Allen v. State Board of Elections, 393 U. S. 544, 565 (1969). Our precedents recognize that to effectuate the congressional purpose, §5 is to be given broad scope. Id., at 567; see also Dougherty County Board of Education v. White, 439 U. S. 32, 38 (1978). Also, far from exempting alterations that might be perceived as minor, Congress failed to adopt such a suggestion when it was proposed in debates on the original Act.

Developments since the passage of the Act provide no basis for concluding that our cases had misinterpreted the intent of Congress. On the contrary, the legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found “virtual unanimity among those who [had] studied the record,” S. Rep. No. 97-417, p. 9 (1982), that §5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision.

Although this Court has never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case, we have twice held that the rescheduling of a candidate qualifying period is a “change” that comes within the scope of § 5. Hadnott v. Amos, 394 U. S. 358, 365-366 (1969); Allen v. State Board of Elections, supra, at 551, 570. Of course, there was no alteration in the filing period itself in this case; it was held between August 16 and August 31, exactly as Act No. 549 required. But a filing period cannot be considered in isolation from the election of which it forms a part. As we have recognized in an analogous context, issues that provoke responses from the electorate and from potential candidates are most likely to arise shortly before election time. Under appellees’ approach, a filing period held years before an election would serve as well as one held on election eve. But clearly, the former has a much greater potential for hindering voter participation than the latter. Furthermore, the August filing period was held at a time when the Attorney General still had an outstanding objection to Act No. 549. Potential candidates who considered the opening of the filing period illegal in these circumstances may have deliberately stayed away.

Appellees do not seriously dispute that a change in the date of an election, if effected by statute, requires approval by the Attorney General under § 5. Rather, they argue that because the rescheduling in this case was merely an administrative effort to comply with a statute that had already received clearance, it was not a change of such magnitude as to trigger the requirements of § 5. But plainly, the form of a change in voting procedures cannot determine whether it is within the scope of § 5. That section reaches informal as well as formal changes, such as a bulletin issued by a state board of elections. Allen, supra. If it were otherwise, States could evade the requirements of § 5 merely by implementing changes in an informal manner. Neither is it determinative that an alteration in scheduling is unlikely to be repeated, as it would be if it were embodied in a statute or rule. The Voting Rights Act reaches changes that affect even a single election. As we have noted, the change in the election date in this instance extended the gap between the filing period and the election, possibly preventing relative latecomers from entering the race. In addition, an election in March is likely to draw significantly fewer voters than an election held simultaneously with a general election in November.

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. Under Department of Justice regulations:

“Any change affecting voting, even though it appears to be minor or indirect, even though it ostensibly expands voting rights, or even though it is designed to remove the elements that caused objection by the Attorney General to a prior submitted change; must meet the Section 5 preclearance requirement.” 28 CFR §51.11 (1984).

Among the specific examples of changes listed in the regulations is “[a]ny change affecting the eligibility of persons to become or remain candidates.” §51.12. Pursuant to these regulations, the Attorney General has, since 1980, reviewed approximately 58 changes in election dates and approximately 10 changes in dates for candidate filing periods. In none of these instances did the Attorney General advise the covered jurisdiction that its submission was not a “change,” and on several occasions objections were interposed.

Appellees argue that these changes in voting procedures were exempt from preclearance because literal compliance with § 5 was impossible. The Attorney General did not approve the November election date until after that date had passed; hence, it was necessary to schedule another election date. Also, it is said that if the legislature had passed a statute setting a March election date and submitted it to the Attorney General, preclearance might not have been obtained by the date of the March election. In that event, yet another amendment would have been necessary, requiring yet another submission. The process might have continued ad infinitum.

To the extent that appellees found themselves in a dilemma, however, it was largely of their own making. Rather than submitting Act No. 549 shortly after its passage, which would have allowed ample time for preclearance before the scheduled opening of the filing period, the State delayed this action for two months. Even after Act No. 549 received clearance too late to allow the election to be held in November, appellees might still have submitted the new election date without encountering significant inconvenience. Because the Attorney General must respond to any submission within 60 days after he receives the necessary information, appellees need only have selected an election date sufficiently far in the future to allow preclearance.

Appellees would have us hold that the changes here at issue did not require preclearance because they were undertaken in good faith, were merely an attempt to implement a statute that had already been approved by the Attorney General, and were therefore an improvement over prior voting procedures. But the Attorney General’s approval of Act No. 549 signified only that it was not discriminatory, not that it was an improvement over Act No. 547, which had also been approved. Furthermore, neither the absence of discriminatory purpose nor a good-faith implementation of a change removes the potential for discriminatory effects.

More fundamentally, it is not our province, nor that of the District Court below, to determine whether the changes at issue in this case in fact resulted in impairment of the right to vote, or whether they were intended to have that effect. That task is reserved by statute to the Attorney General or to the District Court for the District of Columbia. Our inquiry is limited to whether the challenged alteration has the potential for discrimination. The changes effected here did have such potential and therefore should have been precleared under § 5.

Ill

Relying on Berry v. Doles, 438 U. S. 190 (1978), the District Court held as an alternative ground that these changes were implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry involved changes in voting procedures that were implemented without first being submitted to the Attorney General. In a decision rendered after the election had already taken place, a three-judge District Court held that the changes should have been submitted under §5 and enjoined further enforcement of the statute, but refused to set aside the election. We held that the appropriate remedy was to allow the covered jurisdiction 30 days in which to apply for approval of the change. We further stated:

“If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for [a new election.]” Id., at 193.

From this, the District Court drew the conclusion that “a retroactive validation of an election law change under Section 5 could be achieved by after-the-fact federal approval.”

Regardless of whether this is a fair characterization of the holding of Berry, it clearly has no application to the facts of this case. The changes we have identified here — the retention of an August filing period in conjunction with a March election, and the scheduling of the March election — had not even been decided upon by state authorities at the time the Attorney General approved Act No. 549. That statute provided for an August filing period and a November election, which, as we have demonstrated, is quite another matter. Even an informal submission of a change in voting procedures does not satisfy the requirements of §5: the change must be submitted “in some unambiguous and recordable manner.” Allen, 393 U. S., at 571. See also McCain v. Lybrand, 465 U. S. 236 (1984); United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 136 (1978). A change that was never submitted at all does not meet this standard. The Attorney General cannot be said to have validated these changes, retroactively or otherwise, because they were never before him.

í — I <1

Appellees’ use of an August filing period in conjunction with a March election, and the setting of the March election date itself, were changes that should have been submitted to the Attorney General under §5. These changes cannot be said to have been approved along with Act No. 549. As in Berry v. Doles, supra, it is appropriate in these circumstances for the District Court to enter an order allowing appellees 30 days in which to submit these changes to the Attorney General for approval. 438 U. S., at 192-193. If appellees fail to seek this approval, or if approval is not forthcoming, the results of the March 1983 election should be set aside. If, however, the Attorney General determines that the changes had no discriminatory purpose or effect, the District Court should determine, in the exercise of its equitable discretion, whether the results of the election may stand.

We therefore reverse the District Court’s judgment that § 5 was not violated by appellees’ failure to secure approval of these changes, and remand for further proceedings consistent with this opinion.

It is so ordered.

Justice Powell and Justice Rehnquist concur in the judgment.

       Section 5, as set forth in 42 U. S. C. § 1973c, provides in pertinent part:
      “Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect 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, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification . . . 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, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification . . . : Provided, That such qualification . . . may be enforced without such proceedings if the qualification . . . has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification .... In the event that the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to'his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”
      The option of obtaining preclearance from the Attorney General, rather than from the District Court for the District of Columbia, was added to the original legislation “ ‘to provide a speedy alternative method of compliance to covered States.’ ” McCain v. Lybrand, 465 U. S. 236, 246 (1984) (quoting Morris v. Gressette, 432 U. S. 491, 503 (1977)).

       According to appellants’ complaint filed in the District Court, the county as a whole is 47% white and 53% black. School District No. 1 contains 91% of the white student population, and its schools are 46% white. School District No. 2 is 92% black. App. 8a-10a.

       According to the court below, it was thought that an elected board, as opposed to an appointed one, would “be responsive to consolidating School Districts One and Two.” App. to Juris. Statement 3a (order of United States District Court for the District of South Carolina, Sept. 9, 1983).

       See id., at 17a.

       See App. 52a (letter of Gerald W. Jones to C. Havird Jones, Jr.).

         Ibid.

       App. to Juris. Statement 19a-21a. In their complaint in the court below and in their brief in this Court, appellants alleged that Act No. 549 was enacted in response to pressure from white citizens of Hampton County who feared that Act No. 547 might lead to consolidation of the two School Districts. The complaint alleged that white residents of School District No. 1 circulated a petition calling for the abolition of the County Board of Education and the County Superintendent, thus severing the connection between School District No. 1 and School District No. 2. Brief for Appellants 5.

       App. to Juris. Statement 4a (order of United States District Court for the District of South Carolina, Sept. 9, 1983).

         Id., at 59a.

         Id., at 63a-64a (letter of C. Havird Jones, Jr., to William Bradford Reynolds).

       Of the six Board members elected in the November election, three were black and three were white. Brief for Appellants 9.

       App. to Juris. Statement 65a-66a (letter of William Bradford Reynolds to C. Havird Jones, Jr.).

         Id., at 67a-69a (letter of Treva Ashworth to Randolph Murdaugh III).

       The complaint also alleged two other “changes.” One of these was the failure to certify the results of the May referendum to the State Code Commissioner as required by state law. Appellants have not raised this claim in this Court. Appellants also argued in the District Court, and in their brief in this Court, that Act No. 549 had effectively shortened the term of the County Superintendent of Education. Appellants stated at oral argument that they no longer wished to pursue this claim. In addition, the complaint alleged that the abolition of the Board of Education violated § 2 of the Votings Rights Act and the Fourteenth and Fifteenth Amendments. App. 22a-23a. These claims are the subject of continuing litigation in the District Court. Brief for Appellants 13, n. 3.

         Id., at 13-14. Black candidates were elected to all five seats on the District No. 2 Board on March 15. Four whites and one black won seats on the District No. 1 Board. App. to Juris. Statement 7a, n. 2.

       Section 5 of the Voting Rights Act provides that “[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c.

       App. to Juris. Statement 8a-lla.

       Brief for Appellee School Districts 27.

       We note, however, that a prime concern of Congress when it extended the Voting Rights Act in 1982 was the prevalence of changes that were implemented without preclearance and, in some cases, were not submitted to the Attorney General until years later. See S. Rep. No. 97-417, pp. 12, 14, n. 43 (1982); H. R. Rep. No. 97-227, p. 13 (1981). The Senate Report stated:
      “Timely submission of proposed changes before their implementation is the crucial threshold element of compliance with the law. The Supreme Court has recognized that enforcement of the Act depends upon voluntary and timely submission of changes subject to preclearance.
      “The extent of non-submission documented in both the House hearings and those of this Committee remains surprising and deeply disturbing. There are numerous instances in which jurisdictions failed to submit changes before implementing them and submitted them only, if at all, many years after, when sued or threatened with suit.
      “Put simply, such jurisdictions have flouted the law and hindered the protection of minority rights in voting.” S. Rep. No. 97-417, supra, at 47-48.
      Generally, statutes that are subject to § 5 are ineffective as laws until they have been cleared by federal authorities. Connor v. Waller, 421 U. S. 656 (1975) (per curiam).

       In Allen, the Court noted that the Attorney General stated in hearings in the House that two or three types of changes, such as changing from paper ballots to voting machines, could be specifically excluded from § 5 without undermining its purpose. We found it significant that “Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.” 393 U. S., at 568.

       S. Rep. No. 97-417, supra, at 6-7, and n. 8; see also H. R. Rep. No. 97-227, supra, at 34-35 (rejecting proposal to limit §5 to cover only those changes that had produced the most objections; “‘[t]he discriminatory potential in seemingly innocent or insignificant changes can only be determined after the specific facts of the change are analyzed in context’ ”) (quoting testimony of Drew Days, former U. S. Assistant Attorney General).

       See also Dougherty County Board of Education v. White, 439 U. S. 82, 43 (1978), where we held that a Board of Education rule requiring employees to take unpaid leaves of absence while campaigning for elective political office was a barrier to candidacy “as formidable as the filing date changes at issue in” Hadnott and Allen. In other contexts, we have interpreted § 5 broadly to require preclearanee of changes in residence requirements for candidates, City of Rome v. United States, 446 U. S. 156, 160-161 (1980); alterations of municipal boundaries, Richmond v. United States, 422 U. S. 358 (1975); reapportionment and redistricting plans, Georgia v. United States, 411 U. S. 526 (1973); and the location of polling places, Perkins v. Matthews, 400 U. S. 379 (1971).

       See Steelworkers v. Usery, 429 U. S. 305 (1977) (recognizing, in union democracy context, potential adverse impact of requiring candidates to qualify long before election).

       Only one black candidate filed for election as a trustee of District No. 1 during the August filing period. He was ultimately elected to the post, along with four white candidates. Brief for Appellants 27, and n. 12. That other potential candidates were prevented from filing is not mere speculation. Appellants alleged in their complaint that three black citizens of Hampton County, including appellant Benjamin Brooks, attempted to have their names placed on the ballot for trustee positions in February, but were told that the filing period had ended the previous August. App. 16a-17a.

       See swpra, at 174.

       See also Dougherty County, supra (rule promulgated by County Board of Education).

       See H. R. Rep. 97-227, at 35 (rejecting proposal that §5 should be limited to changes that produce most objections; “[wjhile some changes may adversely affect a greater number of people, others may have precisely the type of discriminatory impact which Congress sought to prevent, even though the numbers involved are smaller”).

       Appellants state that over 6,000 Hampton County voters participated in the November 1982 general election, whereas less than half that number voted in the March 1983 special election. Brief for Appellants 23-24.

       See, e. g., United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 131 (1978) (deference should be accorded to Attorney General’s construction of the Act, especially in light of the extensive role played by the Attorney General in drafting the statute and explaining its operation to Congress); Dougherty County, supra, at 39.

       Brief for United States as'Amicus Curiae 13-14; and n. 7.

       Appellees imply that they were unable to submit Act No. 549 until after it had been approved in the May referendum. But the Department’s regulations explicitly provide for submission of statutes before such ratification has been obtained. See 28 CFR § 51.20 (1984). Thus, the Act could have been submitted as soon as it was signed into law on April 9, a full 129 days before the filing period opened on August 16.

       See 28 CFR §§51.8, 51.35, 51.37 (1984).

       See S. Rep. No. 97-417, at 12, n. 31 (“even when changes are made for valid reasons, for example, reapportionment or home rule, ‘jurisdictions may not always take care to avoid discriminating against minority voters in the process’ ”) (quoting S. Rep. No. 94-295, p. 18 (1975)). See also Allen v. State Board of Elections, 393 U. S., at 565, n. 29 (that a change was undertaken in an attempt to comply with the Act does not exempt it from § 5; “[t]o hold otherwise would mean that legislation, allegedly passed to meet the requirements of the Act, would be exempted from § 5 coverage— even though it would have the effect of racial discrimination”).

       See McCain v. Lybrand, 465 U. S., at 250; Dougherty County Board of Education v. White, 439 U. S., at 42; Georgia v. United States, 411 U. S., at 534; Perkins v. Matthews, 400 U. S., at 383-385; Allen v. State Board of Elections, supra, at 555, n. 19, 570.

       App. to Juris. Statement 10a.

       In Berry, we stated that if the Attorney General gave his after-the-fact approval to the challenged alterations in voting procedure, “the matter will be at an end.” 438 U. S., at 193. In that case, however, the District Court had previously acknowledged that the changes were covered by § 5 and had reached the question of an appropriate remedy. In this ease, however, the District Court erroneously concluded that the changes were outside the scope of §5 and never engaged in the equitable weighing process necessary to determine whether failure to submit a covered change for preclearance requires that an election be set aside. The factors to be weighed include “the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5.” Perkins v. Matthews, supra, at 396.
      The determination whether a change has a discriminatory purpose or effect, which is committed by statute to the Attorney General, is distinct from the determination whether failure to submit the change requires that the election be set aside. The latter determination must be made by the District Court, after the Attorney General has passed on the substantive nature of the change.


author: Justice Blackmun

text:
    HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. TURNER et al.
    No. 83-1097.
    Argued October 9, 1984
    Decided February 27, 1985

      Blackmun, J., delivered the opinion for a unanimous Court.

      Carter G. Phillips argued the cause for petitioner. On the briefs were Solicitor General Lee, Acting Assistant Attorney

      General Willard, Deputy Solicitor General Getter, Richard G. Wilkins, William Ranter, and Richard A. Olderman. John K. Van De Ramp, Attorney General of California, and John J. Rlee, Jr., Deputy Attorney General, filed a brief for state respondents, respondents under this Court’s Rule 19.6.

      Mark N. Aaronson argued the cause for AFDC respondents. With him on the brief was John E. Peer.

        Kenneth O. Eikenberry, Attorney General, and Charles F. Murphy, Assistant Attorney General, filed a brief for the State of Washington as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of New Mexico by Paul Bardacke, Attorney General, Richard J. Rubin, and David Stafford; and for the State of New York by Robert Abrams, Attorney General, R. Scott Greathead, First Assistant Attorney General, Peter H. Schiff, and Judith A. Gordon and Marion R. Buchbinder, Assistant Attorneys General.

   Justice Blackmun

delivered the opinion of the Court.

This litigation concerns the proper computation of benefits to working recipients of Aid to Families with Dependent Children (AFDC), provided pursuant to subch. IV, pt. A, of the Social Security Act of 1935 (Act), as amended, 42 U. S. C. § 601 et seq. Specifically, we must decide whether, in calculating a household’s need, the responsible state agency is to treat mandatory tax withholdings as a work expense encompassed within the flat-sum disregard of § 402(a)(8)(A)(ii) of the Act, 42 U. S. C. §602(a)(8)(A)(ii), or whether the agency is to deduct such sums in determining “income” under § 402(a)(7)(A) of the Act, 42 U. S. C. § 602(a)(7)(A). The latter interpretation, of course, would accrue to the benefit of the recipient.

I

Before 1981, § 402(a)(7) of the Act required the state agency responsible for calculating a family’s eligibility for AFDC benefits to “take into consideration any . . . income and resources of any child . . . claiming aid,” as well as any “expenses reasonably attributable to the earning of any such income.” See Pub. L. 87-543, § 106(b), 76 Stat. 188 (1962). The Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, 95 Stat. 357, however, effected amendments of § 402(a)(7). While preserving the language that instructs the State to consider a family’s income and resources, Congress, in §2302 of OBRA, 95 Stat. 844, eliminated the requirement that the State take into account “expenses reasonably attributable to the earning of any such income.” At the same time, by §2301, 95 Stat. 843, Congress placed in § 402(a)(8)(A)(ii), 42 U. S. C. § 602(a)(8)(A)(ii), a flat $75 “work expense” deduction or “disregard” to be taken from an individual’s “earned income.”

In response to these amendments, petitioner Secretary of Health and Human Services advised the responsible state agencies that mandatory payroll deductions were to be included in the new $75 work-expense disregard and that this disregard was to be taken from gross rather than net income. The State of California promptly issued regulations implementing these directions; this had the effect of significantly reducing benefits paid to approximately 45,000 California AFDC families with working members.

Respondents, a class of all past, present, and future California AFDC recipients who have been or will be affected by the changes wrought in the AFDC program by OBRA, brought this action in the United States District Court for the Northern District of California to challenge the California regulations implementing the Secretary’s directions. They contended that the regulations misconstrued the term “income” in § 402(a)(7) to mean gross income, and thereby incorrectly relegated mandatory payroll deductions to the work expenses covered by the flat-sum disregard of § 402(a)(8); instead, according to respondents, they were entitled to have these mandatory payroll items disregarded by the State when calculating income and resources under § 402(a)(7). The State of California brought the Secretary into the litigation as a third-party defendant.

The District Court agreed with the plaintiff class. It therefore granted respondents’ motion for summary judgment, as well as the State’s motion for summary judgment against the Secretary. The court enjoined the State from implementing its new regulations and the Secretary from terminating federal matching funds due the State. Turner v. Woods, 559 F. Supp. 603 (1982).

On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. Turner v. Prod, 707 F. 2d 1109 (1983). Finding’ the statutory language unhelpful, it scrutinized the legislative history and the administrative interpretation of the two statutory provisions before relying primarily on “congressional purpose” to conclude that § 402(a)(7) “income” had always been net income after deduction of amounts man-datorily withheld for payment of social security, federal, state, and local taxes. Therefore, it concluded, the substitution of the flat-sum disregard of § 402(a)(8) for the work-expense disregard of § 402(a)(7) had had no effect on the independent deduction of tax withholdings in determining need.

The other Courts of Appeals to address the issue have concluded that Congress intended the flat work-expense disregard of § 402(a)(8) to encompass mandatory payroll with-holdings, and that “income” for purposes of § 402(a)(7) was gross income. We granted certiorari to resolve the conflict. 465 U. S. 1064 (1984). On July 19, 1984, after the writ had issued but before this Court heard oral argument, the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494, became law. This new legislation includes a provision, § 2625(a), 98 Stat. 1135, that directly addresses the issue raised by this case. On the basis of that congressional action, Justice Rehnquist, in his capacity as Circuit Justice for the Ninth Circuit, prospectively stayed the injunction from July 18, 1984. 468 U. S. 1305 (1984) (in chambers). We now reverse the judgment of the Court of Appeals.

HH H-H

“The AFDC program is based on a scheme of cooperative federalism.” King v. Smith, 392 U. S. 309, 316 (1968). Established by Title IV of the Social Security Act of 1935, 49 Stat. 627, “to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them,” Shea v. Vialpando, 416 U. S. 251, 253 (1974), the federal program reimburses each State which chooses to participate with a percentage of the funds it expends. §403, 42 U. S. C. §603. In return, the State must administer its assistance program pursuant to a state plan that conforms to applicable federal statutes and regulations. §402, 42 U. S. C. §602. Among these provisions are the two relevant here — § 402(a)(7), which requires consideration of “income” for purposes of determining need, and § 402(a)(8), which requires the State to disregard certain sums from a recipient’s income in making that determination.

The present controversy has its roots in a series of amendments to these two sections. As originally enacted in 1935, the Act did not expressly require a State to decrease AFDC grants to families with other income sources. Effective July 1, 1941, however, Congress added § 402(a)(7), which mandated that a state agency, in determining need, shall “take into consideration any . . . income and resources of any child claiming aid to dependent children.” Social Security Act Amendments of 1939, § 401(b), 53 Stat. 1379.

This amendment, in its turn, created a new problem. Because “families with working members incurred certain employment-related expenses that reduced available income but were not taken into account by the States in determining eligibility for AFDC assistance,” the Social Security Board soon “recognized that a failure to consider work-related expenses could result in a disincentive to seek or retain employment.” Shea v. Vialpando, 416 U. S., at 259. To avoid defeating the purpose of the Act to encourage employment even where it did not wholly eliminate the need for public assistance, ibid.; see §401, 42 U. S. C. §601, the Board encouraged the State, in determining a family’s need, to take account of the additional incidental expenses encountered by a working person.

In 1962, Congress converted this administrative prompting into a statutory requirement. It amended § 402(a)(7) to oblige the State to consider, in addition to “income and resources,” all “expenses reasonably attributable to the earning of any such income.” Public Welfare Amendments of 1962, Pub. L. 87-543, § 106(b), 76 Stat. 188. The amendment made “mandatory the widespread but then optional practice of deducting employment expenses from total income in determining eligibility for assistance.” Shea v. Vialpando, 416 U. S., at 260.

The statute again was amended, effective July 1, 1969, to alter fundamentally the statutory treatment of earned income. Social Security Amendments of 1967, Pub. L. 90-248, § 202(b), 81 Stat. 881. Instead of merely protecting against the possibility of a disincentive, Congress moved to create an affirmative incentive to employment by adding several new deductions, or earned-income disregards. While it left intact the language of § 402(a)(7), requiring the State to take into account both a family’s “income and resources” and “any expenses reasonably attributable to the earning of any such income,” the amended version subjected this requirement to a new provision, § 402(a)(8). In part, the new section required the State, in computing income for purposes of determining need, to disregard the first $30 of “earned income” in any month, “plus one-third of the remainder of such income for such month.” 81 Stat. 881. The effect, of course, was to decrease the amount of “earned income” and thereby to increase a family’s benefits.

In response to the new section, the Department of Health, Education, and Welfare, which, as successor to the Social Security Board and predecessor of the Department of Health and Human Services, was then administering the AFDC program, issued regulations defining “earned income” for purposes of § 402(a)(8), and incorporating the new disregards into the benefit calculations. “Earned income” was defined as the “total amount” of “commissions, wages, or salary,” and calculated “irrespective of personal expenses, such as income-tax deductions. . . .” 45 CFR § 233.20(a)(6)(iv) (1970).

In 1981, by OBRA, Congress again significantly altered the treatment of work expenses. As noted above, in place of the requirement of § 402(a)(7) that the State consider expenses “reasonably attributable” to the earning of income, Congress substituted in § 402(a)(8) a child-care disregard of up to $160, and a flat $75 disregard, “in lieu of itemized work expenses.” S. Rep. No. 97-139, p. 435 (1981). In addition, Congress restricted the “$30 plus one-third” disregard to the first four months of a recipient’s employment, § 402(a)(8)(B)(ii)(II), 42 U. S. C. § 602(a)(8)(B)(ii)(II), and reduced its impact by requiring that the calculation be made after the work-expense and child-care disregards had been subtracted, § 402(a)(8)(A)(iv), 42 U. S. C. §602(a)(8)(A)(iv).

In determining how Congress intended these tandem provisions to operate, we look first, as always, to the language of the statute. North Dakota v. United States, 460 U. S. 300, 312 (1983). We do not find this language, as informed by the structure and pattern of amendment of the relevant provisions, as unhelpful as did the Court of Appeals.

K

The statute makes no explicit provision for the deduction of mandatory payroll-tax withholdings. Nor does it qualify the meaning of “income” for purposes of § 402(a)(7). Instead, that section provides that, “except as may be otherwise provided in” § 402(a)(8), the state agency’s determination of need must take account of “any other income and resources” of an AFDC recipient. Section 402(a)(8), in turn, requires that specified amounts of a recipient’s “earned income” be disregarded “in making the determination” under § 402(a)(7). Successive paragraphs of the statute, then, employ twin usages of the term “income” — the first expressly unqualified, the second limited to that “earned.” Absent contrary indications, it seems to us to make sense to read “earned income” to represent a subset of the broader term “income.” Since those portions of one’s salary or wages withheld to meet tax obligations are nonetheless “earned,” a common-sense meaning of “earned income” would include tax withholdings. Such an interpretation is reflected, in any event, in the Secretary’s longstanding definition of the term as “the total amount [of commissions, wages, or salary], irrespective of personal expenses, such as income-tax deductions.” 45 CFR §233.20(a)(6)(iv) (1984). The OBRA Congress must have had that definition in mind when it re-employed the term in § 402(a)(8). Since earned income includes mandatory tax withholdings, so too does the broader category of “income.” Thus, the calculation of need must include all income, unless the recipient has earned income. In that event, the recipient gets the benefit of the disregards of § 402(a)(8). Any authorization for the deduction from § 402(a)(7) income of a working recipient’s tax liabilities, even if mandatorily withheld from pay, must be found in the earned-income disregards of § 402(a)(8).

Among those disregards is the flat sum of $75 monthly. § 402(a)(8)(A)(ii). As the congressional Reports accompanying the 1981 amendments make clear, Congress provided this flat sum “in lieu of itemized work expenses.” S. Rep. No. 97-139, p. 435 (1981); H. R. Conf. Rep. No. 97-208, p. 979 (1981). The substitution is apparent, as well, from the simultaneous elimination from § 402(a)(7) of the language requiring States to consider “expenses reasonably attributable to the earning of . . . income.” Tax liabilities indisputably are so attributable. Indeed, they are the paradigmatic work expense: while transportation, food, clothing, and the like often are susceptible to economies, the proverbial certainty attaches to taxes. Further, the new version of § 402(a)(8) provides a separate disregard, up to $160 monthly, for child-care expenditures, another species of work expense. In contrast, the absence of a special provision conferring independent authorization to disregard mandatory tax with-holdings indicates that they were thought to come within the flat deduction. In sum, there is no support in language or structure for any inference that, notwithstanding the unqualified benchmark of “any other income” in § 402(a)(7) and the specified earned-income disregards of § 402(a)(8), Congress contemplated an additional but unmentioned deduction for tax liabilities.

The administrative background against which the OBRA Congress worked also supports the conclusion that mandatory tax withholdings were among the items Congress intended to include within the flat-sum disregard of § 402(a)(8)(A)(ii). Until 1962, there was no statutory or regulatory requirement that the States disregard work-related expenses in assessing a working recipient’s income, although the successive federal agencies responsible for the AFDC program urged the States to do so as a matter of sound administrative practice. It appears that virtually all States acceded to that urging, at least to the extent of deducting mandatory tax withholdings, although practices varied widely as to other types of expenses. See App. 30-36, Bureau of Public Assistance, Social Security Administration, Department of Health, Education, and Welfare, Public Assistance Report No. 43: State Methods for Determining Need in the Aid to Dependent Children Program (March 1961). The practice of deducting with-holdings continued after § 402(a)(7) was amended in 1962 expressly to require a State to take account of work expenses in determining income; of course, during this period the deduction and computation would have been the same whether the withholdings were subtracted from income pursuant to the work-expense disregard or not included in income in the first place.

The addition of the work-incentive disregard in 1967, however, made it necessary to detail the steps in the determination of need. In response, HEW promulgated detailed regulations on the application of these disregards to earned income. As noted above, one regulation, which has remained unchanged since its initial promulgation, defined “earned income” to mean

“the total amount [of commissions, wages, or salary], irrespective of personal expenses, such as income-tax deductions, lunches, and transportation to and from work, and irrespective of expenses of employment which are not personal, such as the cost of tools, materials, special uniforms, or transportation to call on customers.” 45 CFR § 233.20(a)(6)(iv) (1970).

Another regulation — which has also remained unchanged, though after OBRA it no longer applied to AFDC calculations — set forth the procedure by which the disregards would be applied:

“The applicable amounts of earned income to be disregarded will be deducted from the gross amount of ‘earned income,’ and all work expenses, personal and non-personal, will then be deducted. Only the net amount remaining will be applied in determining need and the amount of the assistance payment.” 45 CFR § 233.20(a)(7)(i) (1970).

The second regulation, echoing the terminology of the first, clearly treated mandatory tax withholdings as “personal” work expenses. The authority for deducting such expenses, of course, by then was the work-expense disregard of § 402(a)(7).

Administrative practice reflected the taxonomy of the regulations. Sometime after 1962, but well before the OBRA Congress acted, many States had come to treat tax withholdings as expenses “reasonably attributable to the earning of . . . income.” A 1972 HEW study reported that virtually every State subjected mandatory payroll with-holdings to the work-expense provision of § 402(a)(7). See App. 47, Department of Health, Education, and Welfare, Memorandum, Assistance Payments Administration, Social and Rehabilitation Service (Feb. 1, 1972). The Colorado program under consideration in Shea was said to treat mandatory payroll deductions as “expenses reasonably attributable to employment,” 416 U. S., at 254-255, and the Shea Court assumed as much, id., at 255. And, in 1977, the House Committee on Government Operations received a comprehensive report on the AFDC program which appeared to indicate that all of the 43 States that responded to the inquiry treated mandatory tax withholdings as deductible work expenses. Congressional Research Service, Administration of the AFDC Program: A Report to the Committee on Government Operations 98 (Comm. Print 1977).

There is no reason to suppose that the Congress that enacted OBRA legislated in ignorance of the then generally accepted categorization of mandatory tax withholdings as work expenses. To the contrary, the Senate Report described Congress’ understanding of existing law:

“In determining AFDC benefits, States are required to disregard from the recipient’s total income: (1) the first $30 earned monthly, plus one-third of additional earnings; and (2) any expenses (including child care) reasonably attributable to the earning of such income . . . .” S. Rep. No. 97-139, p. 501 (1981).

It is unlikely that Congress would have omitted so important an independent step as the disregard of tax liabilities. Instead, the parenthetical mention of child-care expenditures presages their treatment in the revised § 402(a)(8) as the only type of work expense separately disregarded.

The House Conference Report describes the new provisions to the same effect:

“States would be required to disregard the following amount of earnings, in the following order:
“(a) Eligibility Determination — the first $75 of monthly earnings for full time employment (in lieu of itemized work expenses); and the cost of care for a child or incapacitated adult, up to $160 per child per month.
“(b) Benefit Calculation^-the first $75 of monthly earnings for full time employment; child care costs up to $160 per child per month; and $30 plus one-third of earnings not previously disregarded.” H. R. Conf. Rep. No. 97-208, pp. 978-979 (1981).

Again, we find it implausible that Congress would have provided an otherwise complete description of the proposed calculation, yet neglect to mention that “earnings” or “monthly earnings” did not include mandatory tax withholdings.

We acknowledge that the legislative history of the 1962 amendments, which codified the administrative policy that a state agency take account of work expenses in determining need, does not mention mandatory tax withholdings. See S. Rep. No. 1589, 87th Cong., 2d Sess., 17-18 (1962); H. R. Rep. No. 1414, 87th Cong., 2d Sess., 23 (1962). It is also true that in amending its guide to the States in response to the 1962 amendment of § 402(a)(7), HEW did not include such withholdings in its list of expenses reasonably attributable to the earning of income. See App. 39-41, Department of Health, Education, and Welfare, Handbook of Public Assistance Administration, pt. IV, §3140 (Apr. 22, 1964). This silence is at best ambiguous, however. The failure to mention these expenses well may have resulted from Congress’ and HEW’s recognition that the States, acquiescing in the longstanding policy of the federal agencies administering AFDC that state agencies attempt realistically to ascertain recipients’ need, already deducted these expenses in determining eligibility and benefit levels. As the Court of Appeals recognized, the source of the authority to reduce countable income by the amount of various work expenses was unclear at this time. 707 F. 2d, at 1120. In any event, we must identify Congress’ intention in 1981. It is clear that by then the practice of disregarding amounts withheld to satisfy tax liabilities had found a statutory home in the work-expense disregard of § 402(a)(7). It is equally clear that they were among the “itemized work expenses” which the OBRA Congress intended the flat-sum disregard to replace.

B

The Court of Appeals recognized that “if mandatory payroll deductions enter into income at all, they must be treated as work-related expenses subject to the $75 ceiling enacted by OBRA, because no separate disregard for payroll with-holdings exists.” 707 F. 2d, at 1120. It avoided this conclusion, however, by rejecting its premise. According to the Court of Appeals, mandatory tax withholdings always had been excluded from the calculation of a working recipient’s income by virtue of a long-enshrined principle of “actual availability,” which, independently of any explicit statutory disregards, governed the definition of “income” for purposes of § 402(a)(7). Therefore, the substitution of the flat $75 disregard of § 402(a)(8) for the work-expense disregard of § 402(a)(7) had no effect on the treatment of tax payments, which should continue to be deducted from a working recipient’s earnings as the first step in any determination of need.

We disagree. Contrary to the conclusion of the Court of Appeals, the principle of actual availability has not been understood to distinguish the treatment of tax withholdings from that of other work expenses. Rather, it has served primarily to prevent the States from conjuring fictional sources of income and resources by imputing financial support from persons who have no obligation to furnish it or by overvaluing assets in a manner that attributes nonexistent resources to recipients.

The availability principle traces its origins to congressional consideration of the 1939 amendments to the Act. At that time, some Members expressed concern, specifically with regard to the old-age assistance program, that state agencies not assume financial assistance from potential sources, such as children, who actually might not contribute. See 3 Hearings Relative to the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 2254 (1939) (statement of A. J. Alt-meyer, Chairman, Social Security Board); 84 Cong. Rec. 6851 (1939) (statement of Rep. Poage). Shortly after passage of the 1939 amendments, the Board adopted a policy statement applicable to various aid programs, including AFDC. See App. 17-20, Social Security Board Memorandum (Dec. 20, 1940). The statement cautioned the States that in effecting the new statutory directive to take into account a recipient’s “income and resources,” they must ensure that any such income or resources “actually exist,” be not “fictitious” or “imputed,” and “be actually on hand or ready for use when it is needed.” A short time later, this policy statement was incorporated in substantially the same form in the Board’s guidelines to the States, see App. 21-23, and successive federal agencies administering the AFDC program have continued to endorse the principle. See, e. g., HEW Handbook of Public Assistance Administration, pt. IV, §3131.7 (1967) (quoted in Lewis v. Martin, 397 U. S. 552, 555, and n. 6 (1970)). At no time, however, have the federal AFDC agencies suggested that it demanded special treatment of mandatory tax withholdings.

This Court, too, has viewed the actual availability principle “clearly [to] comport with the statute,” King v. Smith, 392 U. S., at 319, n. 16, and has not hesitated to give it effect in that case and others. See Lewis v. Martin, supra; Van Lare v. Hurley, 421 U. S. 338 (1975). But the Court’s cases applying the principle clearly reflect that its purpose is to prevent the States from relying on imputed or unrealizable sources of income artificially to depreciate a recipient’s need. For example, in King v. Smitk the Court considered the actual availability regulation in holding that Alabama could not deny assistance to otherwise eligible children solely on the basis of their mother’s cohabitation with a “substitute father,” not their own, without regard to whether the putative substitute actually contributed to the children’s support. 392 U. S., at 319-320, and n. 16.

The failure of the federal agencies administering AFDC to apply the availability principle to distinguish mandatory tax withholdings is not surprising. The sums they consume are no less available for living expenses than other sums mandatorily withheld from the worker’s paycheck and other expenses necessarily incurred while employed. In implicit recognition of this analytic difficulty, the Court of Appeals, without helpful explanation, purported to clarify the District Court’s ruling by excluding “non-governmental deductions” from its compass, specifying that only federal, state, and local income taxes, social security taxes, and “state disability and equivalent governmental programs” could properly be denominated “non-income items.” 707 F. 2d, at 1124. The

individual respondents make an identical concession, Brief for APDC Respondents 46, but they, also, fail to trace a similarly circumscribed rationale. Yet sums mandatorily withheld for obligations such as union dues, medical insurance, or retirement programs no more pass through the wage earner’s hands than do mandatory tax withholdings. Insofar as the Court of Appeals’ definition pivots on availability to meet family expenses, any distinction between various species of payroll withholdings would be “metaphysical indeed.” James v. O’Bannon, 557 F. Supp. 631, 641 (ED Pa. 1982), aff’d, 715 F. 2d 794 (CA3 1983), cert, pending sub nom. James v. Cohen, No. 83-6168. Likewise, the expenditure of funds on other work-related expenses, such as transportation, meals, and uniforms, just as effectively precludes their use for the needs of the family. That they first pass through the wage earner’s hands is a difference of no apparent import: “the time of payment seems . . . but a superficial distinction; all necessary expenses must be met sometime.” Dickenson v. Petit, 728 F. 2d 23, 25 (CA1 1984), cert, pending, No. 83-6769. There is no reason, then, why the actual availability principle, once applied to exclude mandatory tax withhold-ings from the definition of income, would not similarly apply to other mandatory payroll withholdings and other standard work expenses, both of which also render a portion of a wage earner’s income unavailable to meet the recipient family’s needs. Yet this would negate Congress’ enactment of the flat-sum work-expense disregard in 1981. The failure of the Court of Appeals to outline a principled limit to the applicability of the availability principle to sums deducted from gross income is telling.

The Court of Appeals, however, thought it “clear that the agency charged with the administration of this statute has long regarded it as dealing with net income exclusively.” 707 F. 2d, at 1115. To support this conclusion, it cited the then-current regulation embodying the availability principle, which, as republished after OBRA, provided that “ ‘in determining need and the amount of the assistance payment . . . [n]et income . . . and resources available shall be considered . . . Ibid., quoting 45 CFR §233.20(a)(3)(ii)(D) (1983), as amended by 47 Fed. Reg. 5647, 5675 (1982) (emphasis supplied by Court of Appeals). The court, in our view, however, ignored the context in which the term “net income” appeared. The “net income” to which the regulation then referred was that for which the recipient family must account “after all policies governing the reserves and allowances and disregard or setting aside of income and resources . . . have been uniformly applied.” 45 CFR §233.20(a)(3)(ii) (1983); see also 45 CFR §233.20(a)(3)(ii)(a) (1970). Among those “policies governing. . . disregard” was that governing earned income, which provided that “[o]nly the net amount remaining” after application of the work-incentive and work-expense disregards would be applied in determining need. 45 CFR § 233.20(a)(7)(f) (1970). This Court recognized the proper referent of “net income and resources” in Shea v. Vialpando, where we observed with regard to an earlier version of the regulation:

“The ‘income and resources’ attributable to an applicant, defined in 45 CFR §§ 233.20(a)(6) (iii-viii), consist generally of ‘only such net income as is actually available for current use on a regular basis . . . and only currently available resources.’ 45 CFR §233.20(a)(3)(ii)(c). . . . In determining net income, any expenses reasonably attributable to the earning of income are deducted from gross income. Jp2 U. S. C. § 602(a)(7). If, taking into account these deductions and other deductions not at issue in the instant case, the net amount of ‘earned income’ is less than the predetermined statewide standard of need, the applicant is eligible for participation in the program and the amount of the assistance payments will be based upon that difference. 45 CFR §233.20 (a)(3)(ii)(a) and (c)” (emphasis supplied). 416 U. S., at 253-254.

Thus, it is apparent that the net amount to which the regulation refers is that remaining after AFDC disregards, not simply payroll withholdings.

Finally, even accepting the view of the Court of Appeals that § 402(a)(7) “income” does not encompass mandatory tax withholdings, one reaches a much more limited result than respondents seek. In the face of the straightforward regulatory definition of “earned income” and Congress’ reemployment of that term in reworking the § 402(a)(8) disregards, it is clear that the flat-sum disregard is to be deducted from total earned income, including mandatory tax withholdings, as provided by § 402(a)(8) and its implementing regulations. The putative rule excluding tax withholdings as “non-income items” under § 402(a)(7) income would also take total earnings as its starting point. Thus, the benefits each provides would be duplicative until deductions exceeded $75. Respondents’ understanding of § 402(a)(7) would simply require the state agency to permit recipients to deduct the greater of either actual payroll deductions or $75. No party urges this construction, of course, because it would have been a senseless and cumbersome way for Congress to achieve such a result. But, for us, it demonstrates the implausibility of respondents’ view of the interplay of § 402(a)(7) and § 402(a)(8).

C

Notwithstanding its conclusion that the actual availability principle had always governed the treatment of mandatory tax withholdings in calculating an AFDC family’s need, and continued to do so after enactment of OBRA, the Court of Appeals looked “primarily to congressional purpose” for its holding that these withholdings should be deducted independently of the flat-sum disregard. 707 F. 2d, at 1110. As the court noted, the AFDC statute has long sought to

“enabl[e] each State to furnish financial assistance ... to needy dependent children and the parents or relatives with whom they are living . . . and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection . . . .” §401, 42 U. S. C. §601.

See Shea v. Vialpando, 416 U. S., at 253. While acknowledging the cost-cutting focus of the OBRA amendments, the Court of Appeals reasoned that its construction best accommodated what it saw as the competing purposes of the 76th and 97th Congresses. First, citing the elimination after the first four months of employment of the $30 and one-third, work-incentive disregard, which it regarded as OBRA’s “chief economizing feature,” as well as the imposition of a cap on the child-care and work-expense disregards, the court opined that other changes in the statutory disregards fully accomplished any budgetary savings intended by the OBRA Congress. Next, it reasoned that the unchanged statement of statutory purpose compelled its construction, which still resulted in a disincentive to employment, because it produced a lesser disincentive than that effected by the Secretary’s regulations. Finally, seeing “no reason to believe that AFDC recipients will work in order to pay handsomely for the privilege,” it decided that in the long term the OBRA Congress’ desire to reduce welfare expenditures would best be accomplished by avoiding or minimizing financial penalties on employed recipients. 707 F. 2d, at 1123.

We agree with the Court of Appeals that the OBRA Congress neither changed the language of the AFDC statement of purpose nor abandoned the statutory goals. We also agree that the new scheme, as implemented by the Secretary, threatens to dissipate any incentive to employment, in some cases perhaps even forcing recipients who wish to work to apportion a smaller sum to family expenses than if they stayed at home. Unlike the Court of Appeals, however, we hesitate to tell Congress that it might have achieved its budgetary objectives by less than the full range of changes it chose to utilize, particularly when the information provided Congress by its own Budget Office, on which it presumably relied, belies that conclusion. See S. Rep. No. 97-139, at 447, 552. More importantly, it seems plain to us that the risk of creating disincentives to employment that would lead to increased expenditures down the road did not trouble the OBRA Congress.

During the House hearings on the OBRA changes to the AFDC statute, Representative Stark voiced concern that the new scheme would put a working mother to the distressing choice of either quitting her job or making do with less money to devote to her family’s needs. See Administration’s Proposed Savings in Unemployment Compensation, Public Assistance, and Social Services Programs: Hearings before the Subcommittee on Public Assistance and Unemployment Compensation of the House Committee on Ways and Means, 97th Cong., 1st Sess., Ser. No. 97-7, p. 3 (Comm. Print 1981). Representative Rangel feared that “[t]he marginally poor, actually penalized ... for working, would have a great disincentive to continue to work.” Id., at 41. Other Members and numerous private witnesses issued similar warnings. See, e. g., id., at 26 (Rep. Russo); id., at 46 (Rep. Chisholm); id:, at 318 (Kevin M. Aslanian, Welfare Recipients League, Inc.). And the report of the Congressional Budget Office, included in the Senate Report, expressly called Congress’ attention to the possibility that the work-expense cap and temporal limitation on the work incentive disregard would “increase the work disincentives found in the current AFDC program.” S. Rep. No. 97-139, at 552.

In the face of these warnings, we must assume that Congress enacted the proposed changes in full awareness of the employment disincentives some Members felt the changes threatened to create.

Indeed, the concerns which underlay the decision of the Court of Appeals in this case prompted the House Subcommittee on Public Assistance and Unemployment Compensation to draft a version of § 402(a)(8) which would have increased substantially the flat work-expense disregard. The Subcommittee proposed to allow a work-expense deduction of the lesser of 20% of earned income or $175. See 127 Cong. Rec. 14476 (1981). But the House rejected this version and, instead, passed a substitute identical to that passed by the Senate. See id., at 14681-14682; H. R. Conf. Rep. No. 97-208, at 978-979. Again, Members sounded warnings of the consequences of the administration substitute. See 127 Cong. Rec. 14104 (1981) (Rep. Rostenkowski); id., at 14663-14664 (Rep. Biaggi). These concerns, however, did not deter the OBRA Congress.

Instead, as the Court of Appeals for the Third Circuit has observed, the legislative history indicates that, “[hjaving determined that providing financial incentives for work was not achieving the goal of self-sufficiency and that such incentives were leading to ever-increasing public expenditures,. Congress embarked on a new course.” James v. O’Bannon, 715 F. 2d, at 809. In proposing to limit the $30 and one-third disregard to the first four months of employment, for example, the Senate Budget Committee expressed impatience that the program then in effect was not inducing AFDC mothers to achieve self-sufficiency. S. Rep. No. 97-139, at 502-503. As a result, Congress sought other means that, in combination with the now temporally limited work-incentive disregard, might “decrease welfare dependency, and emphasize the principle that AFDC should not be regarded as a permanent income guarantee.” Ibid. It chose to authorize the States to establish programs aimed at promoting employment among AFDC recipients. A State could establish a “community work experience program . . . designed to improve the employability of participants through actual work experience and training,” § 409(a)(1), 42 U. S. C. § 609(a)(1), and it could condition AFDC eligibility on participation in the program. H. R. Conf. Rep. No. 97-208, at 980. A State could establish a “work supplementation program,” under which it would “make jobs available, on a voluntary basis, as an alternative to aid otherwise provided under the State plan.” §414(a), 42 U. S. C. § 614(a). “Under this approach, recipients would be given a choice between taking a job or depending upon a lower AFDC grant . . . .” H. R. Conf. Rep. No. 97-208, at 980. And the State could establish a “work-incentive demonstration program” as an alternative to current work-incentive programs. § 445, 42 U. S. C. §645; see H. R. Conf. Rep. No. 97-208, at 981. Participation in such a program would also be mandatory for persons eligible for AFDC. § 445(b)(1)(B), 42 U. S. C. § 645(b)(1)(B). See also § 402(a)(19), 42 U. S. C. § 602(a)(19). In conjunction with the amendments to the earned-income disregards, these provisions suggest a change in strategy on Congress’ part — away from financial incentives and toward programs designed to find employment for recipients and oblige them to take it.

Thus, it is clear that the OBRA Congress elected to pursue unchanged goals by new methods. By concluding that Congress could not have intended to include mandatory tax withholdings in the new $75 disregard because such a rule would dilute financial incentives to work, the Court of Appeals ignored the congressional choices manifest in the departure from approaches previously favored.

D

Were there any doubt remaining as to Congress’ intention in 1981, subsequent congressional action would dispel it. In the immediately succeeding session, certain Members of the House Committee on Ways and Means introduced H. R. 6369, 97th Cong., 2d Sess. (1982), by which they attempted to restore the financial work incentives eliminated by OBRA. The attempt failed. The Report accompanying the bill, however, describes the pre-OBRA state of the law. The Committee first noted that the “countable income” which determined eligibility equaled “gross income minus the disregards.” H. R. Rep. No. 97-587, pt. 1, p. 6 (1982). Later, it referred to the potential disincentive posed, prior to the 1962 and 1967 amendments, by “any work-related expenses — such as transportation and child day care costs, and mandatory tax and other wage deductions.” Id., at 12. It also listed the components of an AFDC family’s pre-OBRA “disposable income (wages minus work expenses plus AFDC benefits).” Ibid. Finally, it recounted the pre-OBRA calculation of need: “States were required to reduce the State monthly payment by the amount of the family’s earnings that remained after the following amounts had been excluded or disregarded: (1) the first $30 of earnings; (2) plus one-third of remaining earnings; (3) plus work expenses for the month (any expenses, including child day care, reasonably attributable to the earning of income). ” I bid. E ach of these statements indicates that the OBRA Congress regarded mandatory tax withholdings as standard work expenses; none admits of the possibility that they might have constituted an independent deduction.

We take great care, of course, before relying on the understandings of Members of a subsequent Congress as to the actions of an earlier one, but we by no means eschew what guidance they offer. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 117-120, n. 13 (1980); Cannon v. University of Chicago, 441 U. S. 677, 686-687, n. 7 (1979). Here, we face the considered statements of a Committee whose Members were in the thick of the fight over earned-income disregards in the preceding session of the same Congress. And those statements clearly reveal the common ground of that fight that the existing scheme did not independently disregard mandatory tax withholdings, but grouped them with other work expenses which the new flat-sum disregard would subsume.

The most recent confirmation of Congress’ intentions in this matter came with enactment of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494, which, by its § 2625, 98 Stat. 1135, amends § 402(a)(8) to provide that “in implementing [the section], the term ‘earned income’ shall mean gross earned income, prior to any deductions for taxes or for any other purposes.” The legislative history demonstrates that Congress enacted this provision in order to resolve the very dispute presented here. Specifically noting that the Courts of Appeals had come to conflicting conclusions on the matter and that this Court had granted the petition for certiorari in this case, the Conference Report leaves no doubt that Congress intended to endorse the competing construction. H. R. Conf. Rep. No. 98-861, pp. 1394-1395 (1984). The Senate echoed the House explanation:

“The statute would be amended to make clear that the term ‘earned income’ means the gross amount of earnings, prior to- the taking of payroll or other deductions. The provisions in the AFDC statute which require that specified amounts of earned income be disregarded in determining eligibility and benefits have historically been interpreted as requiring that such amounts be deducted from gross, rather than net, earnings.
“The Committee agrees with the Department that there was no intention to change this interpretation when it approved the 1981 AFDC amendments. The Committee notes that when the Congressional Budget Office estimated the savings expected to be derived from the changes in 1981, it followed the interpretation shared by the Department and the Committee that the proposed disregards would apply to gross earnings.” 1 Senate Committee on Finance, Deficit Reduction Act of 1984, 98th Cong., 2d Sess., 982 (Senate Print 98-169, 1984).

Thus, the 98th Congress reiterated its immediate predecessor’s intentions not just by words but by deed — not only did it express in legislative history the “historic] interpretation]” of the relevant income, but it found it sufficient in resolving the disagreement to amend only § 402(a)(8). This 1984 legislation, which, it was said, sought to “[c]larif[y] current law,” Senate Print, at 79, leaves no doubt as to the prospective interpretation of the statute, but it carries in addition considerable retrospective weight. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 166-167, and n. 19 (1982); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969); FHA v. The Darlington, Inc., 358 U. S. 84, 90 (1958). In conjunction with contemporaneous evidence and the 1982 House Report, it removes all doubt.

> H-I

In sum, while it appears that from the early days of the AFDC program the States regularly have excluded mandatory tax withholdings when determining need, it is clear to us that from some time after the addition in 1962 of the work-expense disregard of § 402(a)(7), and certainly by the time of OBRA, they did so pursuant to the directive of that section to disregard expenses “reasonably attributable” to the earning of income. All the available evidence indicates that the Congress that enacted the OBRA changes in the AFDC program also viewed tax liabilities as work expenses subject to the § 402(a)(7) disregard. That congressional understanding compels the conclusion that mandatory tax withholdings were among the items encompassed by the flat-sum disregard of § 402(a)(8).

Respondents and their amici have offered various policy reasons why the disincentive to employment effected by the failure fully to account for work expenses is wrong. They point to the value, both pecuniary and inherent, of the search for and maintenance of employment, as well as to the long-term costs to the States in discouraging AFDC families’ efforts toward economic independence. We, however, do not sit to pass on policy or the wisdom of the course Congress has set. Our task is only to determine that the Secretary has identified it correctly. We are satisfied that she did.

The judgment of the Court of Appeals is reversed.

It is so ordered.

       California Department of Social Services, Manual of Policy and Procedure, Eligibility and Assistance Standards § 44-113.21 (Nov. 1981).

       See Dickenson v. Petit, 728 F. 2d 23 (CA1 1984), cert. pending, No. 83-6769; James v. O’Bannon, 715 F. 2d 794 (CA3 1983), cert. pending sub nom. James v. Cohen, No. 83-6168; Bell v. Massinga, 721 F. 2d 131 (CA4 1983), cert. pending, No. 83-6269.

       The State, however, is afforded “broad discretion in determining both the standard of need and the level of benefits.” Shea v. Vialpando, 416 U. S. 251, 253 (1974); see King v. Smith, 392 U. S. 309, 318-319 (1968). The state plan first establishes the statewide standard of need, “which is the amount deemed necessary by the State to maintain a hypothetical family at a subsistence level,” Shea v. Vialpando, 416 U. S., at 253, and then determines “how much assistance will be given, that is, what ‘level of benefits’ will be paid,” Rosado v. Wyman, 397 U. S. 397, 408 (1970). Both eligibility and benefit amounts are determined by comparing income with the state standard of need. If a family’s income “is less than the predetermined statewide standard of need, the applicant is eligible for participation in the program and the amount of the assistance payments will be based upon that difference.” Shea v. Vialpando, 416 U. S., at 254. A State need not pay the entire difference, but instead may establish dollar maxima or provide only a specified percentage of the family’s need. See Rosado v. Wyman, 397 U. S., at 408-409.
      The State of California, a respondent here under this Courts’ Rule 19.6, has filed, with others, a brief in support of the petitioner.

       See App. 24, 25, Bureau of Public Assistance, Federal Security Agency, Social Security Board, State Letter No. 4 (Apr. 30, 1942) (“It should be recognized that when a person is working there may be additional needs which must be met such as additional clothing, transportation, food and the like”); App. 27, 28, Department of Health, Education, and Welfare, Social Security Administration, State Letter No. 291 (Mar. 11, 1957), incorporated as §3140 of pt. IV of Handbook of Public Assistance Administration (1957). See also App. 37, Handbook of Public Assistance Administration, pt. IV, § 3140 (1962).

       The statute at that time thus had come to be worded as follows:
      “A state plan for aid and services to needy families with children must
      “(7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children,... as well as any expenses reasonably attributable to the earning of any such income; (8) provide that, in making the determination under clause (7), the State agency—
      “(A) shall wilh respect to any month disregard—
      “(ii) in the case of earned income of a dependent child [or] a relative receiving such aid ... , the first $30 of the total of such earned income for such month plus one-third of the remainder of such income for such month . . ..”

       The statute thus provided:
      “A state plan for aid and services to needy families with children must. . .
      “(7) except as may be otherwise provided in paragraph (8) . . . , provide that the State agency—
      “(A) shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children . . .
      “(8)(A) provide that, with respect to any month, in making the determination under paragraph (7), the State agency—

        “(ii) shall disregard from the earned income of any child or relative applying for or receiving aid to families with dependent children, or of any other individual (living in the same home as such relative and child) whose needs are taken into account in making such determination, the first $75 of the total of such earned income for such month (or such lesser amount as the Secretary may prescribe in the ease of an individual not engaged in full-time employment or not employed throughout the month);
      “(iii) shall disregard from the earned income of any child, relative, or other individual specified in clause (ii), an amount equal to expenditures for care in such month for a dependent child . . . receiving aid to families with dependent children and requiring such care for such month, to the extent that such amount (for each such dependent child . . .) does not exceed $160 (or such lesser amount as the Secretary may prescribe in the case of an individual not engaged in full-time employment or not employed throughout the month);
      “(iv) shall disregard from the earned income of any child or relative receiving aid to families with dependent children ... an amount equal to the first $30 of the total of such earned income not disregarded under any other clause of this subparagraph plus one-third of the remainder thereof. . . ; and
      “(B) provide that (with respect to any month) the State agency—
      “(ii) •••
      “(II) in the case of the earned income of a person with respect to whom subparagraph (A)(iv) has been applied for four consecutive months, shall not apply the provisions of subparagraph (A)(iv) for so long as he continues to receive aid under the plan and shall not apply such provisions to any month thereafter until the expiration of an additional period of twelve consecutive months during which he is not a recipient of such aid.”

       The current version of this regulation is identical to that originally promulgated in 1970.

       See also Connecticut State Dept. of Public Welfare v. HEW, 448 F. 2d 209, 216 (CA2 1971) (treating 45 CFR § 233.20(a)(6)(iv) (1970) to provide a nonexhaustive list of expenses reasonably attributable to the earning of income under § 402(a)(7)).

       The Court of Appeals suggested that tax withholdings “are easily verified,” 707 F. 2d, at 1124, but so too are any other amounts whose deduction a payroll stub records.

       In the 1984 version of the regulation, the words “[n]et income” are replaced by “[fincóme after application of disregards.” 45 CFR § 233.20(a)(3)(ii)(D) (1984). There are also other changes in subparagraph (D). See 49 Fed. Reg. 35586, 35592, 35600 (1984). The text at p. 35592 explains that the changes were in response to the Deficit Reduction Act to correct the “misinterpret[ations]” of the phrase “net income” in the prior version.

       See Heckler v. Turner, 468 U. S. 1305, 1306-1307 (1984) (Rehnquist, J., in chambers).