Full opinion text
WISDOM, Senior Circuit Judge: In 1979 the district court held that the at-large system for electing the Marengo County, Alabama county commission and school board did not violate the Fourteenth and Fifteenth Amendments; the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1971(a) (1976); and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 (1976). Clark v. Marengo County, 1979, S.D.Ala., 469 F.Supp. 1150. Since that time, we have remanded this case once, and the Supreme Court has issued two decisions affecting the standard of proof in constitutional discrimination cases. Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012; City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Furthermore, in 1982 Congress amended section 2 of the Voting Rights Act to restore the legal standard that governed voter discrimination decisions before the Supreme Court decided Mobile v. Bolden. We now hold that the 1982 amendment to section 2 applies to this case; that amended section 2 is a constitutional exercise of congressional enforcement power under the Fourteenth and Fifteenth Amendments; and that the district court was clearly erroneous in holding that Marengo County’s at-large system had no discriminatory results as of the time of trial. We remand this case to the district court to allow the parties a limited opportunity to update the record and, in the event that the court finds a continuing violation of the Voting Rights Act, to allow the court to devise an appropriate remedy. I. Marengo County is a sparsely populated rural county covering 978 square miles in west central Alabama.' Its 1950 population of 29,494 had decreased to 27,098 in 1960 and to 23,819 in 1970. Blacks comprised 69% of the population in 1950, 62.1% in 1960, and 55.2% in 1970. The percentage of blacks in the voting age population has likewise declined over the years: from 56.1% in 1960 to 50.8% in 1970. The parties stipulated that at the time of trial 16,000 persons were qualified to vote, of whom 44 percent were black. Blacks have always constituted a minority of registered voters. There are great social and economic disparities between blacks and whites. The County Commission (formerly the Board of Revenue) and the Board of Education have five members each. Before 1955 each body had a president, elected at-large, and four members elected from districts. In 1955 the state legislature provided that all members of both bodies would be elected at-large, with the requirement that one member live in each of the four existing districts. In 1966 the legislature provided for staggered four-year terms. Before 1965 no black ran for any office in Marengo County. Between 1966 and 1978 there were 73 county-wide elections in which blacks ran against whites. One black was elected County Coroner in 1978 by winning the Democratic primary by a margin of 3,719 to 3,617 over a white candidate. Another black was appointed to the school board. On August 15, 1977 a group of blacks filed a class action alleging that Marengo County’s at-large system for electing the county commission and school board unlawfully diluted the voting rights of blacks. One year later, the United States filed suit under the Voting Rights Act. The court tried the case on October 23-25, 1978 and January 4, 1979. On April 23, 1979 the district court issued an opinion and entered judgment for defendants. The court concluded that the plaintiffs had not proved that the at-large system was being maintained with a discriminatory purpose. 469 F.Supp. at 1180. The United States appealed to the Fifth Circuit. On April 22, 1980, the United States Supreme Court decided City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Mobile v. Bolden held that in vote dilution cases discriminatory intent must be shown to establish a constitutional violation, and it raised doubts about the methodology used by the Fifth Circuit in vote dilution cases. This Court accordingly remanded the ease to the district court “for further proceedings, including the presentation of such additional evidence [as] is appropriate, in light of [Mobile v. Bolden]". United States v. Marengo County Commission, No. 79-2525 (5 Cir. Aug. 6, 1980), Record 448. On May 20, 1981, the Fifth Circuit decided Lodge v. Buxton, 5 Cir.1981, 639 F.2d 1358. Lodge held that Mobile v. Bolden does not require direct evidence of discriminatory intent but stated, “An essential element of a prima facie case [of unconstitutional vote dilution] is proof of unresponsiveness by the public body in question to the group claiming injury.” 639 F.2d at 1375. On July 30, 1981, the district court in the present case again ordered judgment for defendants on the ground that the plaintiffs had not established unresponsiveness. The court rejected the United States’ offer to present additional evidence, including evidence concerning the reasons for the adoption of at-large elections in Marengo County, because it concluded that this evidence “would add nothing” to show unresponsiveness. Record 499-501. The United States again appealed, and we granted its motion to hold this appeal in abeyance pending review of Lodge v. Buxton (sub nom. Rogers v. Lodge) by the United States Supreme Court. On July 1,1982, the Supreme Court affirmed the result in Lodge, but held that unresponsiveness is not an essential element of a claim of unconstitutional vote dilution. Instead, the court held that “unresponsiveness is an important element but only one of a number of circumstances a court should consider in determining whether discriminatory purpose may be inferred”. Rogers v. Lodge, 458 U.S. at 625 n. 9, 102 S.Ct. at 3280 n. 9. The 1982 amendment to section 2 of the Voting Rights Act became effective on June 29, 1982. Pub.L. No. 97-205, sec. 6, 96 Stat. 131, 135. Congress redefined the scope of section 2 of the Act to forbid not only those voting practices directly prohibited by the Fifteenth Amendment but also any practice “imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote on account of race or color____” 42 U.S.C.A. § 1973(a) (West Supp.1983) (emphasis added). See S.Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 177 [1982 Senate Report]. The United States urges us to apply the amended statute to the existing record and hold as a matter of law that Marengo County’s at-large system has a discriminatory “result”. In response, the defendants argue that the 1982 amendment does not or should not apply to this litigation; that section 2 does not apply to vote dilution claims; that the 1982 amendment is unconstitutional; and that the findings of the district court are not clearly erroneous. II. “[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. Richmond School Board, 1974, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488. This principle goes back as far as United States v. Schooner Peggy, 1801, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49, in which Chief Justice Marshall stated, “It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns ... the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” 5 U.S. (1 Cranch) at 110. The defendants argue that “manifest injustice” would be done if the amended version of section 2 were applied here. We find, however, that the legislative history of the amendment, and the vital public interest in insuring effective participation in the political process for every citizen, mandate our application of the law in effect now. In general, it is unnecessary to find affirmative support in a statute or its legislative history for applying it to pending cases. A statute will be assumed to apply to cases pending at the time of its passage unless there is a “clear indication” that it is not to apply. Bradley, 416 U.S. at 712-716, 94 S.Ct. at 2016-2018. Here there is certainly no such indication in either the statute or its legislative history. On the contrary, the available evidence suggests that Congress expected the amendment to govern a case such as the one now before the Court. Both Representative Sensen-brenner and Senator Kennedy explicitly stated during debate that “Section 2, unlike the bailout procedure added by this bill, will take effect immediately, and will, of course, apply to pending cases in accordance with the well established principles of Bradley v. City of Richmond. 416 U.S. [696] 686 [94 S.Ct. 2006, 40 L.Ed.2d 476] (1974) and United States v. Alabama. 362 U.S. 602 [80 S.Ct. 924, 4 L.Ed.2d 982] (1980).” 128 Cong.Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep. Sensenbrenner); id. at S7095 (daily ed. June 18, 1982) (remarks of Sen. Kennedy). Our application of the amended version of section 2 will serve important public interests without doing any injustice to the parties. Bradley holds that in determining whether the application of new law is just, a court should consider “(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights.” 416 U.S. at 717, 94 S.Ct. at 2019. All these considerations strongly support applying the amendment to this case. The first consideration, the nature of the parties, arises from the distinction, described in Schooner Peggy, between private disputes and “great national concerns”. Although it may not be imperative to apply new congressional enactments to preexisting disputes over private issues, when the new statute manifests important public policy, courts must respect that policy and apply it. There is no question that this case is a public matter, concerning the most fundamental of public rights, the right to participate in the political process. The second consideration, the nature of the rights, is intended to protect personal rights that have “matured or become unconditional”. Bradley, 416 U.S. at 720, 94 S.Ct. at 2020. There are no such rights here. The defendants argue that to apply amended section 2 “would operate to deprive the state officials of a vested right to enact and/or maintain state laws, which at the time of the enactment, and at the times alleged in this suit, were being maintained under constitutionally acceptable conditions.” Brief for Appellees at 8. Even assuming that the at-large system did not violate constitutional or statutory prohibitions effective in 1955 or 1978, the defendants’ “vested right” theory is unsound. Under that theory segregated public transit would still be permissible since it was legal (according to Plessy v. Ferguson) when adopted. The defendants fail to distinguish between retroactive and prospective application of the statute. This court is unconcerned with whether the enactment of the at-large system met the legal standards in effect in 1955. Rather, the question is whether the present maintenance of that system meets the standards in effect now. No government entity has a “vested right” to continue practices validly prohibited by Congress. The third consideration “stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard.” Bradley, 416 U.S. at 720, 94 S.Ct. at 2021. There is no such problem here. The defendants are “burdened” in no way by the application of the amended statute: they become liable for no added obligations on account of any actions taken before the statute became effective. The application of the amended statute to this case certainly does not work “manifest injustice”. Moreover, that application also accords with the basic principle that courts do not issue advisory opinions. This lawsuit seeks only prospective relief, and only the legal standard governing now is relevant to whether a prospective remedy is appropriate. See Rybicki v. State Board of Elections, 1983, E.D.Ill., 574 F.Supp. 1147, 1148 n. 3 (3 judge court). If this Court rendered judgment under the old version of section 2, that judgment would have no res judicata effect, and a new lawsuit could be filed under the new law. Kirksey v. City of Jackson, 5 Cir.1983, 714 F.2d 42. To apply the old standard here, therefore, would be an exercise in futility: a finding in favor of the defendants would not be binding on the plaintiffs. III. The defendants assert that a vote dilution claim is not cognizable under the amended version of section 2 of the Voting Rights Act. This argument is wholly without merit. The theory appears to be that section 2 is either a codification of the Fifteenth Amendment or based only on that amendment’s enforcement clause, and that in either case the Fifteenth Amendment does not cover cases of vote dilution, which must be prosecuted only under the Fourteenth Amendment. This argument is faulty on several grounds. Although the plurality opinion in Mobile v. Bolden did suggest that vote dilution is a Fourteenth Amendment issue, 446 U.S. at 64-65, 100 S.Ct. at 1498-1499, we have since held that a majority of the Court in Mobile concluded that the Fifteenth Amendment, as well as the Fourteenth, protects not only against denial of the right to vote but against dilution of that right as well. Lodge v. Buxton, 639 F.2d at 1372-73; United States v. Uvalde Consolidated Independent School District, 5 Cir.1980, 625 F.2d 547, 551-552, cert. denied, 1981, 451 U.S. 1002, 101 S.Ct. 2341, 68 L.Ed.2d 858; accord Perkins v. City of West Helena, 8 Cir.1982, 675 F.2d 201, 205-06, affd mem., 1982, 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47. As Justice Frankfurter stated in Lane v. Wilson, 1939, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281, “The reach of the Fifteenth Amendment against contrivances by a state to thwart equality in the enjoyment of the right to vote by citizens of the United States regardless of race or color, has been amply expounded by prior decisions____ The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.” 307 U.S. at 275, 59 S.Ct. at 876. In any case, it is clear that the equal protection clause of the Fourteenth Amendment does apply to vote dilution, Brown v. Board of School Commissioners of Mobile County, 11 Cir.1983, 706 F.2d 1103, 1107, affd mem., 1983, — U.S.-, 104 S.Ct. 520, 78 L.Ed.2d 705, and equally clear that the 1982 amendments to the Voting Rights Act were based on the enforcement clauses of both amendments. 1982 Senate Report at 39-43. Although Mobile v. Bolden held that the original version of section 2 was only a statutory codification of section 1 of the Fifteenth Amendment, Congress amended the statute to prohibit practices not directly prohibited by the Fifteenth Amendment. See Mobile v. Bolden, 446 U.S. at 61, 100 S.Ct. at 1496 (plurality opinion); id. at 105 n. 2,100 S.Ct. at 1520 n. 2 (Marshall, J., dissenting); 1982 Senate Report at 39-40. The defendants contend that it is “abundantly clear” that section 2 protects only “access to the political processes”. We reject any assertion that the statute as amended applies only to formal barriers to access such as literacy or residency tests. The goal of the Voting Rights Act has always been to ensure an effective right of participation. That this continues to be the case is made “abundantly clear” by the words of the amended statute and its history. The statute is violated if a protected class has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice”. 42 U.S.C.A. § 1973(b) (West Supp.1983) (emphasis added). The act states further, “The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered” in determining if the statute is violated. Id. The amendment was passed in direct response to the Supreme Court’s decision in Mobile v. Bolden, a dilution case. In that decision the Court increased the burden on the plaintiffs by requiring them to prove intentional discrimination in election procedures. This “intent” standard was so difficult to meet that the Justice Department stopped bringing suits under section 2. It would defy reason to hold that the amendment was not intended to cover the very type of case that provoked its passage. See 1982 Senate Report at 15-17. The legislative history both in support and in opposition to the amendment is replete with discussion of how the amendment will apply to vote dilution cases. There is not a word to suggest any doubt about whether it would apply to such cases. See Parker, The “Results” Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va.L.Rev. 715, 762-64 (1983). We therefore hold that the amended version of section 2 was intended to apply to the problem of vote dilution that this case presents. It remains for us to consider whether the amendment is constitutional, and if so, how it affects the district court’s ruling in this case. IV. The defendants argue that because the amended version of section 2 prohibits some voting practices not directly prohibited by the Constitution, it is unconstitutional. In the defendants’ view, Congress usurped the power of the Supreme Court to interpret the Constitution by attempting to overrule Mobile v. Bolden. Congress explicitly acknowledged the binding effect of the Supreme Court’s constitutional interpretation and relied not on any independent power to interpret the Constitution but rather on congressional power to enforce the Civil War Amendments. The defendants, however, contend that the enforcement power does not authorize Congress to adopt a statutory “results” test for voting discrimination. The defendants argue that the scope of only the Fifteenth Amendment’s enforcement clause is at issue, but for the reasons explained in part III of this opinion the question is rather the extent of the power of Congress under the Constitution as a whole. We therefore consider whether a statutory results test is authorized under the combined grant of authority in the enforcement clauses of the Fourteenth and Fifteenth Amendments. It has long been recognized that these provisions of the Constitution grant authority to Congress “no less broad than its authority under the Necessary and Proper Clause____” City of Rome v. United States, 1980, 446 U.S. 156, 175, 100 S.Ct. 1548, 1560, 64 L.Ed.2d 119, 138; accord South Carolina v. Katzenbach, 1966, 383 U.S. 301, 326-327, 86 S.Ct. 803, 817-18, 15 L.Ed.2d 769, 785-86; Ex parte Virginia, 1880, 100 U.S. 339, 345-46, 25 L.Ed. 676, 679. The extent of the “necessary and proper” power was first explained by Chief Justice Marshall in M’Culloch v. Maryland, 1819, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579: “[T]he sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” 17 U.S. (4 Wheat.) at 421. The enforcement clauses of the Civil War Amendments grant Congress the power to adopt “Whatever legislation is appropriate, that is, adapted to carry out the objects the Amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against state denial or invasion, if not prohibited, ____” Ex parte Virginia, 100 U.S. at 345-46. Congress may invalidate the perpetuation of earlier purposeful discrimination, and act to eradicate the continuing effects of that discrimination. City of Rome, 446 U.S. at 176-77, 100 S.Ct. at 1561-62. Congress has prohibited a variety of voting practices not necessarily prohibited directly by the Constitution, and the Supreme Court has upheld these exercises of the enforcement power. In South Carolina v. Katzenbach, 1966, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, the Court upheld a suspension of literacy tests in specific jurisdictions. In Katzenbach v. Morgan, 1966, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, the Court upheld a prohibition on the use of English literacy tests to disenfranchise citizens educated in Puerto Rico. In Oregon v. Mitchell, 1970, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272, the Court unanimously upheld a nationwide ban on literacy tests and by an 8-1 margin upheld limitations on residency requirements in presidential elections. In South Carolina v. Katzenbach and again in City of Rome the Court upheld the preclearance provisions of the Voting Rights Act, which require federal review of all changes in voting practices in certain jurisdictions and require the Attorney General to object to any change that is discriminatory either in purpose or effect. The 1982 amendment to section 2 of the Voting Rights Act is clearly within the enforcement power. Congress conducted extensive hearings and debate on all facets of the Voting Rights Act and concluded that the “results” test was necessary to secure the right to vote and to eliminate the effects of past purposeful discrimination. The Senate Report explains in detail why the results test was necessary and appropriate. In particular, Congress found “(1) that the difficulties faced by plaintiffs forced to prove discriminatory intent through case-by-case adjudication create a substantial risk that intentional discrimination barred by the Fourteenth and Fifteenth Amendments will go undetected, uncorrected and undeterred unless the results test proposed for section 2 is adopted; and (2) that voting practices and procedures that have discriminatory results perpetuate the effects of past purposeful discrimination.” 1982 Senate Report at 40 (footnote omitted), U.S.Code Cong. & Admin.News 1982, p. 218. Inquiry into the motives of elected officials can be both difficult and undesirable, and such inquiry should be avoided when possible. The judicial and executive authorities charged with enforcing the laws may be reluctant to attribute an intent on the part of state and local officials to violate those laws. In any event, proof of intent will often be hard to find: “In almost all conceivable cases, the [officials who adopted or maintain the system] can articulate a plausible neutral reason for preferring the at-large method. Even where ‘everyone knows’ that racial considerations have had an influence on the decision, courts may be expected to be reluctant to label the deci-sionmakers as racists if they can avoid that unseemly task by accepting the neutral explanation. Where the responsible actor is the electorate itself, as it would be in a challenge based on a referendum, the difficulty of launching an inquiry into motive is compounded.” Hartman, Racial Vote Dilution and Separation of Powers: An Explanation of the Conflict Between the Judicial “Intent” and the Legislative “Results" Standards, 50 Geo.Wash.L.Rev. 689, 711-12 (1982). See Major v. Treen, 1983, E.D.La., 574 F.Supp. 325, 346 (3 judge court). Congress agreed with this assessment. Congress noted that charges of purposeful discrimination can' have a divisive impact on local communities. 1982 Senate Report at 36. Congress also found that proving intent can be time-consuming and very costly. Id. Congress found that these costs were not only large but often unnecessary. In particular, Congress referred to Mobile v. Bolden. That case was remanded and the district court again found a constitutional violation, but only after “a tremendous expenditure of resources”, in which the court examined over one hundred years of historical records to establish that at-large elections were established for discriminatory reasons. 1982 Senate Report at 36. Congress concluded that such delays and extra costs created undesirable obstacles to the eradication of purposeful discrimination. The defendants assert that Congress cannot prohibit discriminatory results under the enforcement power. The case law is uniformly to the contrary. In City of Rome the Court stated flatly that “Congress may prohibit voting practices that have only a discriminatory effect”. 446 U.S. at 175, 100 S.Ct. at 1560. Both City of Rome and South Carolina v. Katzen-bach upheld prohibitions on changes having discriminatory effects in jurisdictions covered by the preclearance provisions of the Voting Rights Act. The defendants do not discuss City of Rome, but argue that South Carolina v. Katzenbach made extensive and detailed findings of purposeful discrimination in the covered jurisdictions. The defendants contend that only “exceptional conditions” akin to those discussed in Katzenbach sustain an exercise of the enforcement power. The defendants, however, make no mention of Oregon v. Mitchell, in which the Court sustained a nationwide ban on literacy tests without demanding evidence of nationwide purposeful discrimination. As in Oregon v. Mitchell, nationwide application is justified here for many reasons. Although there is no nationwide record of pervasive voting discrimination akin to the record of discrimination in the jurisdictions covered by preclearance, Congress did find evidence of substantial discrimination outside those jurisdictions. 1982 Senate Report at 92 n. 161. Congress had previously found that minority groups have been given inferior educational opportunities in localities throughout the nation and that literacy tests had been used to discriminate in jurisdictions not covered by preclearance. See Oregon v. Mitchell, 400 U.S. at 132-34, 91 S.Ct. at 268-69 (Opinion of Black, J.); Id. at 234-36, 91 S.Ct. at 319-20 (Opinion of Brennan, White, and Marshall, JJ.); S.Rep. No. 295, 94th Cong., 1st Sess. 21-35, reprinted in 1975 U.S.Code Cong. & Ad. News 774, 787-801. It was not unreasonable to conclude that these same nationwide problems could contribute to risks of discrimination through voting devices other than literacy tests. Moreover, minority residents of areas where purposeful discrimination is pervasive may and often do move to other areas, where the earlier discrimination against them impairs their ability to participate fully in the political process. We take judicial notice of the fact that different minorities have been subject to different kinds of discrimination in different places. Congress could justifiably conclude that a nationwide prohibition of voting practices with discriminatory results was necessary to remedy the effects of purposeful discrimination throughout the country. “Congress may paint with a much broader brush than may this Court____” Oregon v. Mitchell, 400 U.S. at 284, 91 S.Ct. at 344 (Opinion of Stewart, J.) Finally, Congress found nationwide application of the results standard desirable to avoid the risk of stigmatizing certain areas of the country, and to avoid provoking sentiment that such areas “were unjustifiably singled out”. 1982 Senate Report at 42, U.S.Code Cong. & Admin.News 1982, p. 220. By eliminating any appearance of regional discrimination, Congress made it more likely that state and local officials will comply with the law. Nationwide application also avoids the administrative difficulties of determining where a statute will apply and where it will not. Oregon v. Mitchell, 400 U.S. at 283-84, 91 S.Ct. at 343-44 (Opinion of Stewart, J.). Section 2 therefore meets the first portion of the test laid down in M’Culloch and Ex parte Virginia: it is clearly an “appropriate” means for carrying out the goals of the Civil War Amendments. Nor is the results test prohibited by any other part of the Constitution. The defendants argue that section 2 is an impermissible infringement on state powers. But section 2 is far less of an interference with state powers than the preclearance provisions approved in South Carolina v. Katzenbach and City of Rome. Nor does section 2 violate states’ rights by limiting their choices of electoral processes. Section 2 leaves state and local governments free to choose the election system best suited to their needs, as long as that system provides equal opportunities for effective participation by racial and language minorities. The Civil War Amendments overrode state autonomy apparently embodied in the Tenth and Eleventh Amendments. EEOC v. Wyoming, 1983, 460 U.S. 226, -n. 18, 103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d 18, 33 n. 18; City of Rome, 446 U.S. at 178-80, 100 S.Ct. at 1562-63; Fitzpatrick v. Bitzer, 1976, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614, 620-22. The Civil War Amendments granted national citizenship to all blacks and guaranteed their right of access to the voting process. By their very nature they plainly empowered the federal government to intervene in state and local affairs to protect the rights of minorities newly granted national citizenship. See City of Rome, 446 U.S. at 179-80, 100 S.Ct. at 1562-63. “[T]he States can be required to tailor carefully the means of satisfying a legitimate state interest when fundamental liberties and rights are threatened ... and Congress is free to apply the same principle in the exercise of its powers.” Katzenbach v. Morgan, 384 U.S. at 654 n. 15, 86 S.Ct. at 1725 n. 15. The states have an important interest in determining their election practices. But Congress could reasonably conclude that practices with discriminatory results had to be prohibited to reduce the risk of constitutional violations and the perpetuation of past violations. Today it is a small thing and not a great intrusion into state autonomy to require the states to live up to their obligation to avoid discriminatory practices in the election process. The report of the Senate Subcommittee on the Constitution argued that section 2 was “retroactive” and that such “retroac-tivity” had never been approved by the Supreme Court. In part II of this opinion we have already explained, however, that there is nothing “retroactive” about section 2. It does not affect the validity of any election conducted before its passage. Section 2 is no more retroactive than were any of the Voting Rights Act provisions approved in previous Supreme Court cases. South Carolina v. Katzenbach approved the suspension of literacy tests in covered jurisdictions although some of these tests may have been valid before the passage of the Voting Rights Act of 1965. See Lassi-ter v. Northampton Election Board, 1959, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. Katzenbach v. Morgan approved the ban on New York’s English-language literacy test as applied to Puerto Ricans, even though that test might have been valid under the standards existing before 1965. The 1970 Voting Rights Amendments similarly banned literacy tests, residency requirements, and age limits, many of which were unquestionably valid before the Act was passed. In Oregon v. Mitchell the Court approved all the 1970 Amendments except the age limits as applied to state and local elections; its disapproval of the age provision had nothing to do with “retroactivity”. The Senate Subcommittee on the Constitution also argued that the results test is unconstitutional because it “is offensive to the basic colorblind objectives of the Constitution”. 1982 Senate Report at 172, U.S. Code Cong. & Admin.News 1982, p. 345. The Subcommittee argued that under the results test, “[cjonsiderations of race and color would become omnipresent and dominant”. Id. at 173, U.S.Code Cong. & Admin.News 1982, p. 346. This is an argument of policy, not one of constitutionality. The Senate Report responds to the Subcommittee’s concerns by noting that section 2 is intended to apply only where racial politics already “dominate[s] the electoral process”. Id. at 33, U.S.Code Cong. & Admin. News 1982, p. 211. Section 2 is not meant to create race-conscious voting but to attack the discriminatory results of such voting where it is present. The defendants argue, as did the Senate Subcommittee on the Constitution, that section 2 is an impermissible effort to overturn the Supreme Court’s interpretation of the Constitution in Mobile v. Bol-den. The opponents of section 2 argue that it is not an exercise of the enforcement power but an effort to redefine the meaning of the Civil War Amendments by statute. There is no doubt that Congress amended section 2 principally because Congress was dissatisfied with the effect of Mobile v. Bolden on voting rights litigation. The Senate Report says so explicitly. This is to be expected; had the Supreme Court not adopted an intent requirement in Mobile v. Bolden, the statutory amendment would have been unnecessary. But congressional disapproval of a Supreme Court decision does not impair the power of Congress to legislate a different result, as long as Congress had that power in the first place. The amendment to section 2 does change the standard that voting rights plaintiffs must meet. But those who argue that this change is tantamount to overruling Mobile v. Bolden miss the point of that case. That case held that direct violations of the substantive provisions of the Fourteenth and Fifteenth Amendments — that is, the provisions not amenable to statutory change — are established only when discriminatory purpose is shown. The Court also held that the Voting Rights Act, as then written, did not impose a different standard from that of the Constitution. But nothing in Mobile v. Bolden suggested that Congress could not prohibit by statute what the Court had declined to forbid under the Constitution. City of Rome, decided the same day, upheld legislation that prohibited discriminatory effects. It may well be that Mobile v. Bolden should be understood as an invitation by the Court to Congress to supplement the Constitution’s fundamental, self-enforcing prohibition of purposeful discrimination. Basic to a governmental system resting on separation of powers is the power of Congress to go beyond the explicit provisions of the Constitution and to take steps that the courts are reluctant to take in the absence of legislation. M’Culloch v. Maryland, 1819, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579. The rule of Mobile v. Bolden is not that discrimination can be prohibited only if it is purposeful. It is rather that the courts, acting without statutory guidance, will go no further than to strike down purposeful discrimination. It is for Congress to decide how much further to go in fulfilling the goals of the Constitution. Congress has done so. In enacting the results test of section 2 Congress did not rely on, or even mention, any power to interpret the Constitution or to decide independently of the judiciary that certain practices directly violate the substantive provisions of the Constitution. We therefore need not consider any argument that Congress has such power, nor need we consider the limits on such a power. Congress predicated its power to amend section 2 squarely, and only, upon the enforcement power. 1982 Senate Report at 39-43. Nothing more is necessary to sustain the statute. Section 2 does not conflict with or contract any right protected by the Constitution, and nothing in the Constitution either explicitly or implicitly prohibits a results standard for voting rights violations. Under the test of M’Cul-loch, section 2 is “consistent] with the letter and spirit of the constitution”, 17 U.S. (4 Wheat.) at 421, and is clearly constitutional. Accord Jones v. City of Lubbock, 5 Cir.1984, 727 F.2d 364, 372-75; Major v. Treen, 1983, E.D.La., 574 F.Supp. 325, 342-49 (3 judge court). V. The United States urges us, on the basis of the record now before us, to hold as a matter of law that Marengo County’s at-large election system has a discriminatory result and violates amended section 2. We do not do so, for the reasons explained in part VI of this opinion. At the trial, the district court’s ultimate inquiry in this case was whether the plaintiffs had demonstrated discriminatory intent. 469 F.Supp. at 1178, 1180. Certain language in the district court’s opinion, however, indicates that the court also held that Marengo County’s at-large system is not responsible for any lack of minority access to the political system and would therefore pass muster under a results or effects test as well. The court stated that it was “convinced that the lack of black success in Marengo County elections results not from a lack of access to the political system, but rather from a failure of the blacks to turn out as many of their half of the voters as do the whites”. 469 F.Supp. at 1161 n. 7. The court also stated that “it is clear that if the blacks could overcome voter apathy and turn out their votes, they could succeed in spite of polarization”. Id. at 1163. These findings are based on a misconception of law and are clearly erroneous. To ensure that upon remand this case is decided under correct legal standards, we find it necessary to explain in some detail how the “results” test of section 2 is to be applied to an allegation that an at-large system unlawfully dilutes minority votes. A. Congress chose the language of the statute with great care. Congress wished to eliminate any intent requirement from section 2, and therefore changed the terms of § 2(a), 42 U.S.C.A. § 1973(a) (West Supp. 1983), to forbid any practice that “results in” discrimination. Congress used the word “results” to make clear that the section 2 standard was not intended to be equivalent to the “effects” test of the pre-clearance provisions of section 5. 1982 Senate Report at 68. In section 2(b), 42 U.S.C.A. § 1973(b) (West Supp.1983), violations of subsection (a) are defined in language taken from White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314. In White the Court stated that in a dilution case the plaintiffs could not succeed merely by showing that racial groups were not represented in proportion to their voting potential: “The plaintiffs’ burden is to produce evidence supporting findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” 412 U.S. at 766, 93 S.Ct. at 2339. The language of White, generalized to cover all elections and elected officials, is the fundamental standard of section 2. But Congress added a further provision to make certain that proportional representation is not required. As amended, section 2 now reads: “(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. “(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C.A. § 1973 (West Supp.1983). The language and history of the statute make clear several points. First, discriminatory intent need not be shown to establish a violation. Second, at-large elections are not prohibited per se, nor does a lack of proportional representation automatically require a finding of a violation. At the same time, however, the absence of minority elected officials may be considered as an indicium of violation, and an at-large system will violate the statute if it results in a denial of equal participation. Congress noted that some at-large systems diluted black votes, and would be vulnerable under the amended statute. 1982 Senate Report at 6. Third, section 2 focuses not on whether minority groups receive adequate public services but on whether minorities have an equal right to participate in-the political process. See id. at 36. The Senate Report gives particular approval to the jurisprudence developed by the former Fifth Circuit in cases immediately following White v. Regester, most notably Zimmer v. McKeithen, 5 Cir.1973, 485 F.2d 1297 (en banc), affd per curiam sub nom. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. Zimmer listed a number of factors to be considered in dilution cases. The Senate Report repeats and elaborates on this list, characterizing them as “typical factors”. These factors are to be weighed under a “totality of the circumstances” approach. We organize our review of those findings in the same way. We emphasize, however, that the Zimmer factors serve a different purpose in litigation under section 2 from their purpose in constitutional litigation. B. In this section we list the factors considered by the district court and explain the relevance, under amended section 2, of these factors and of the district court’s findings. We take them in a somewhat different order from that of the district court because of the different emphasis placed on different factors by the results test. Racially polarized voting The statute explicitly calls for a “totality-of-the circumstances” approach and the Senate Report indicates that no particular factor is an indispensable element of a dilution claim. 1982 Senate Report at 28-30. We therefore do not hold that a dilution claim cannot be made out in the absence of racially polarized voting. But the legislative history indicates that this factor will ordinarily be the keystone of a dilution case. To some extent the significance of racially polarized voting is obvious. “[I]n the absence of racially polarized voting, black candidates could not be denied office because they were black, and a case of ... dilution could not be made.” Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, 223 n. 16, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807; see also Rogers v. Lodge, 458 U.S. at 623-24, 102 S.Ct. at 3279. The importance of polarized voting to a plaintiff’s case also grows out of the purposes of amended section 2 and the limits placed upon its scope. The report of the Senate Subcommittee on the Constitution argued that a results test would create race-consciousness and racial polarization. The Subcommittee also argued that the results test made the unwarranted assumptions “that race is the predominant determinant of political preference” and “that the decisions of elected officials are predominantly determined by racial classification”. 1982 Senate Report at 148-49, U.S. Code Cong. & Admin.News 1982, p. 321. The majority report responded: “The Subcommittee Report claims that the results test assumes ‘that race is the predominant determinant of political preference.’ The Subcommittee Report notes that in many eases racial bloc voting is not so monolithic, and that minority voters do receive substantial support from white voters. “That statement is correct, but misses the point. It is true with respect to most communities, and in those communities it would be exceedingly difficult for plaintiffs to show that they were effectively excluded from fair access to the political process under the results test. “Unfortunately, however, there still are some communities in our Nation where racial politics do dominate the electoral process. “In the context of such racial bloc voting, and other factors, a particular election method can deny minority voters equal opportunity to participate meaningfully in elections. ****** “The results test makes no assumptions one way or the other about the role of racial political considerations in a particular community. If plaintiffs assert that they are denied fair access to the political process, in part, because of the racial bloc voting context within which the challenged election system works, they would have to prove it.” Id. at 33-34 (footnote and italicization omitted), U.S.Code Cong. & Admin.News 1982, pp. 211-12. This section of the Senate Report makes it clear that section 2 is intended not to create race-conscious politics, but to remedy it where it already exists. The surest indication of race-conscious politics is a pattern of racially polarized voting. In the present case the defendants argue that an elected official does not “have to be of a particular race to adequately represent that race”. Brief for the Appellees at 30. We completely agree with this statement and look hopefully toward the day when elections in Marengo County are conducted without regard to the race of the candidates. But the evidence demonstrates that day has not come, at least as of 1978. The district court found extremely strong evidence of polarized voting in elections before 1978, and continuing, through somewhat reduced, polarization in the 1978 elections. Race is, as it has been since blacks were allowed to vote, the main issue in Marengo County politics. Past discrimination and its lingering effects A history of discrimination is important evidence of both discriminatory intent and discriminatory results. A history of pervasive purposeful discrimination may provide strong circumstantial evidence that the present-day acts of elected officials are motivated by the same purpose, or by a desire to perpetuate the effects of that discrimination. Rogers v. Lodge, 458 U.S. at 624, 102 S.Ct. at 3279. Under the results test, the inquiry is more direct: past discrimination can severely impair the present-day ability of minorities to participate on an equal footing in the political process. Past discrimination may cause blacks to register or vote in lower numbers than whites. Past discrimination may also lead to present socioeconomic disadvantages, which in turn can reduce participation and influence in political affairs. See Zimmer, 485 F.2d at 1306. The historical record of discrimination in Marengo County is undisputed, and it has not ended even now. The county school system remains under judicial supervision; and in 1978, while this case was being tried, the district court characterized the Board of Education as “obdurately obstinate” in its opposition to desegregation. Lee v. Marengo County Board of Education, 1978, S.D.Ala., 454 F.Supp. 918, 931. The judicial opinions recording the efforts of the United States and private plaintiffs to desegregate the public schools of this small rural county would fill a small volume. Federal courts had to intervene to end discrimination on Marengo County’s grand and petit juries. Black v. Curb, 5 Cir.1970, 422 F.2d 656. And, of course, a long series of lawsuits was necessary to enforce the rights of blacks in Marengo County to vote and run as candidates. This is not to mention cases of statewide application too numerous to list completely. For example, in Alabama State Teachers Ass’n v. Lowndes County Board of Education, 1968, M.D.Ala., 289 F.Supp. 300 (3 judge court) the court struck down a series of statutes that denied tenure to teachers in predominantly black counties, including Marengo. The district court opinion lists many other cases of statewide application. 469 F.Supp. at 1172-73. The district court acknowledged this history of discrimination, but then stated that the plaintiffs had “adduced very little evidence” as to “whether such past discrimination has in any way precluded effective present participation by blacks”, id. at 1173, and concluded that the “present lingering effects of past discrimination among blacks ... do not manifest themselves so completely in political matters as they do in other everyday affairs”, id. at 1180. The district court concluded that past discrimination does not substantially impair the ability of blacks to participate in the political process. The record fails to support this conclusion. Because blacks are poorer and less educated they have less political influence than whites. Blacks still register and vote in significantly lower numbers than whites. The district court was well aware of this fact but attributed the absence of elected black officials to “voter apathy” and “a failure of blacks to turn out their votes”. Id. at 1163. Reasoning that as of 1978 there were an estimated 7,040 black voters, and that the winners of most previous elections had received 5,000 - 6,000 votes, the court speculated that “if the blacks could overcome voter apathy and turn out their votes, they could succeed in spite of polarization”. Id. Both Congress and the courts have rejected efforts to blame reduced black participation on “apathy”. The Senate Report states, “The courts have recognized that disproportionate edueational[,] employment, income level[,] and living conditions arising from past discrimination tend to depress minority political participation ____ Where these conditions are shown, and where the level of black participation is depressed, plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation.” 1982 Senate Report at 29 n. 114. See also Major v. Treen, 1983, E.D.La., 574 F.Supp. 325, 351 n. 31. This Court has rejected the speculation the district court offered. In Kirksey v. Board of Supervisors of Hinds County, 5 Cir.1977, 554 F.2d 139 (en banc), cert. denied, 1977, 434 U.S. 968, 98 S.Ct. 512, 54 L.Ed.2d 454, the district court approved a redistricting plan that cut up the black community and left it a minority in each of the five voting districts. The district court held that this plan gave blacks a “realistic opportunity” of winning elections in two districts where blacks were 48-49% of the voting age population. Id. at 150. The Court of Appeals rejected this approach. It held: “The responsibility of the defendants to permit minority voters a proper role in democratic political life must be discharged by stronger stuff than gossamer possibilities of all variables falling into place and leaning in the same direction.” Id. The Fifth Circuit also established that when there is clear evidence of present socioeconomic or political disadvantage resulting from past discrimination, as there was in this case, the burden is not on the plaintiffs to prove that this disadvantage is causing reduced political participation, but rather is on those who deny the causal nexus to show that the cause is something else. Cross v. Baxter, 5 Cir.1979, 604 F.2d 875, 881-82; Kirksey, 554 F.2d at 144-46; Zimmer, 485 F.2d at 1306; see also Hartman, 50 Geo.Wash.L.Rev. at 727-29. There was certainly no substantial evidence in the present case to support an attribution of depressed black political participation to “apathy” unconnected with historical discrimination. Access to the slating process In jurisdictions where there is an influential official or unofficial slating organization, the ability of minorities to participate in that slating organization and to receive its endorsement may be of paramount importance. In White v. Regester, for example, the Supreme Court found it significant that only two blacks had ever been endorsed by the Dallas County Committee for Responsible Government, “a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County”. 412 U.S. at 766-67, 93 S.Ct. at 2339-40. Apparently, there was no similar organization in Marengo County. The district court did not directly address the question whether there was a more informal slating process that ensured a white candidate for every office. In the broadest sense of the term “access to slating” — that is, the ability to run for office— there does not appear to have been any substantial formal or informal impediment to black candidacies. We do note, however, that in 1978 only 7 of the 34 members of the Marengo County Democratic Executive Committee were black. 469 F.Supp. at 1162 n. 10. Election practices Two election practices exacerbated the deficiencies in black participation: the low number of black poll officials and the failure of the registrar to abide by state law. The district court stated, “On the poll official appointment question, the plaintiffs allege that the appointments made by the County Appointing Authority have been racially motivated and tend toward tokenism. They contend that it is important to have black poll officials so that black voters will have more confidence in the electoral system. The evidence before the Court reflects that the assertions of the plaintiffs are to a large extent true .... [0]ne black was appointed at each polling place for the 1970 election, and there is no evidence that this number has increased to any great extent.” • 469 F.Supp. at 1161 (footnote omitted). The court concluded, however, “that this inequity is not of such magnitude as to deprive blacks of access to the political process.” Id. at 1162 (footnote omitted). The plaintiffs also showed that the County Board of Registrars was open only two days a month except in election years; that, contrary to state law, the Board of Registrars met only in Linden, the county seat, and failed to visit outlying areas to register rural voters; and that the Board had never acted on the offer of a black, Earnest Palmer, to serve as a deputy registrar. The court said it did not see how these policies discriminated against blacks. Id. at 1164. These policies, however, unquestionably discriminated against blacks because fewer blacks were registered. If blacks are to take their rightful place as equal participants in the political process, affirmative efforts were and are necessary to register voters and to assist those who need assistance. By holding short hours the Board made it harder for unregistered voters, more of whom are black than white, to register. By meeting only in Linden the Board was less accessible to eligible rural voters, who were more black than white. By having few black poll officials and spurning the voluntary offer of a black citizen to serve as a registrar, county officials impaired black access to the political system and the confidence of blacks in the system’s openness. See United States v. Palmer, 5 Cir.1966, 356 F.2d 951, 952. Enhancing factors A vote dilution case “is enhanced by a showing of the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographical subdistricts”. Zimmer, 485 F.2d at 1305. Marengo County has a majority vote requirement in the Democratic Party primary, although not in the general election. 469 F.Supp. at 1174. Candidates for the School Board and County Commission run for specific posts, based on residency districts except for the presiding officers’ positions. Marengo County has a small population but a large, rural area, and accordingly the county-wide campaign for an at-large position is expensive. Since blacks earn, on the average, less than half of the amount that whites earn, the district court correctly found that the size of the county contributes to dilution. On balance, the features of the electoral system operate to submerge minority interests, although they do provide for some geographical diversity. This geographic diversity, however, does not operate to reduce racial dilution, because the white majority still elects whites to represent all the residency districts. Racial appeals The court found no evidence of overt or subtle racial appeals, and placed little credence in evidence offered to show that black voters were intimidated. In the seventies overt political racism was less prevalent than in the sixties. “As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find.” Metropolitan Housing Development Corp. v. Village of Arlington Heights, 7 Cir.1977, 558 F.2d 1283, 1290, cert. denied, 1978, 434 U.S. 1025, 98 S.Ct. 752, 54 L.Ed.2d 772. But the continuing effects of past discrimination are still with us. This is one of the principal reasons Congress found it necessary to adopt a results test to root out the effects of past discrimination. 1982 Senate Report at 36-37; Major v. Treen, 574 F.Supp. at 346. Evidence of racism can be very significant if it is present. See Perkins v. City of West Helena, 675 F.2d at 216-17. But its absence should not weigh heavily against a plaintiff proceeding under the results test of section 2. State policy Under an intent test, a strong state policy in favor of at-large elections, for reasons other than race, is evidence that the at-large system does not have a discriminatory intent. On the other hand, a tenuous explanation for at-large elections is circumstantial evidence that the system is motivated by discriminatory purposes. See Robinson v. Commissioners Court, 5 Cir.1974, 505 F.2d 674, 680; Zimmer, 485 F.2d at 1305, 1307. State policy is less important under the results test: “even a consistently applied practice premised on a racially neutral policy would not negate a plaintiffs showing through other factors that the challenged practice denies minorities fair access to the process”. 1982 Senate Report at 29 n. 117, U.S.Code Cong. & Admin.News 1982, p. 207, n. 117. But state policy is still relevant insofar as intent is relevant to result: evidence that a voting device was intended to discriminate is circumstantial evidence that the device has a discriminatory result. See Major v. Treen, 574 F.Supp. at 354-55. Moreover, the tenuousness of the justification for a state policy may indicate that the policy is unfair. Hendrix v. Joseph, 5 Cir.1977, 559 F.2d 1265, 1269-70. The district court found that there was no strong state policy either for or against at-large elections. The court erroneously stated that Marengo County’s at-large provisions were adopted “in 1923 and 1935 when blacks had been effectively disenfranchised” and therefore those provisions could not have been motivated by race. In fact, at-large elections were adopted in 1955, just after the Supreme Court decided Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. It is fair to infer that at-large elections were enacted in direct response to the prospect of increased black political participation. Success of minority candidates If members of the minority group have not been elected to public office, it is of course evidence of vote dilution. Section 2(b) explicitly permits the court to consider “[t]he extent to which members of a protected class have been elected”, but in the next breath warns that the statute does not establish a right to proportional representation. 42 U