I. SECTION 5 OF THE VOTING RIGHTS ACT OF 1965 BARS IMPLEMENTATION OF A NEWVOTING PRACTICE ENACTED WITH A RACIALLY DISCRIMINATORY PURPOSE, EVEN IFTHE NEW PRACTICE IS NOT RETROGRESSIVE IN PURPOSE OR EFFECT

In our original opening and reply briefs, we explain that Section 5 of theVoting Rights Act of 1965 (Act), 42 U.S.C. 1973c, prohibits the implementationby a covered jurisdiction of any new voting practice enacted with the purposeof discriminating on the basis of race or color. That prohibition is notlimited to changes enacted with an intent to worsen the voting strengthof a minority group. This conclusion follows from the language of Section5 (Opening Br. 18),1 the legislative history of its enactment in 1965 andits reenactments in 1970, 1975, and 1982 (id. at 20-24), and this Court'sdecisions (id. at 24-29), especially City of Pleasant Grove v. United States,479 U.S. 462 (1987); Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'dmem., 459 U.S. 1166 (1983); and City of Richmond v. United States, 422 U.S.358 (1975). To those points we add the following:

A. The text of Section 5 establishes that a new voting practice that hasa discriminatory, albeit nonretrogressive, purpose, may not be implemented.Section 5 provides that a covered jurisdiction may implement a new votingpractice if it obtains a declaratory judgment from the United States DistrictCourt for the District of Columbia that the practice "does not havethe purpose and will not have the effect of denying or abridging the rightto vote on account of race or color." 42 U.S.C. 1973c. A "purpose* * * of denying or abridging the right to vote on account of race or color"plainly includes a purpose to perpetuate an existing situation because itdenies or abridges black citizens' right to vote, and to resist furtherblack enfranchisement. For example, a new voting practice intended to preventthe registration of black citizens who had previously been prohibited fromvoting, or to keep new black registration to the minimum possible, wouldhave the purpose to deny or abridge black citizens' right to vote on accountof their race or color, even if that voting change was not designed to reduceblack voter participation further. Such a voting practice could not be precleared,for it would not be a practice that "does not have the purpose * ** of denying or abridging the right to vote on account of race."
None of that language suggests a limitation barring preclearance only ofnew practices with a retrogressive purpose. Appellee suggests (AppelleeBr. 18) that the limitation to retrogression is found in the statutory phrase"denying or abridging." A reading of "denying or abridging"as limited to retrogression is untenable, however, in light of the structureof the Voting Rights Act as a whole, including other provisions where thesame phrase is employed but where no limitation to retrogression may befound.
For example, Section 3(c) of the Act, 42 U.S.C. 1973a(c), establishes apreclearance procedure similar to that in Section 5 for jurisdictions wherea court has found a violation of the right to vote guaranteed by the Fourteenthand Fifteenth Amendments justifying equitable relief. Under Section 3(c),the court may order such a jurisdiction not to implement any voting changeunless the court or the Attorney General concludes that the new practice"does not have the purpose and will not have the effect of denyingor abridging the right to vote on account of race or color." 42 U.S.C.1973a(c). Yet Section 3(c)'s bar on implementation of new voting practicesthat have a purpose "of denying or abridging the right to vote on accountof race or color" clearly is not limited to changes with a retrogressivepurpose; if it were so limited, then a jurisdiction that was adjudicatedto have engaged in intentional discrimination could simply implement a newvoting practice with the intent to perpetuate the same discrimination.2Similarly, Section 2 of the Act, as originally enacted, see 42 U.S.C. 1973(1970), prohibited the application of any voting qualification "todeny or abridge the right of any citizen of the United States to vote onaccount of race or color." Yet neither Congress nor this Court hasever suggested that Section 2's prohibition against voting practices that"deny or abridge the right * * * to vote on account of race or color"was limited to retrogressive voting practices.3
Appellee's argument is based fundamentally on a serious misapprehensionof what this Court decided in Beer v. United States, 425 U.S. 130 (1976).In Beer, this Court did not decide that the phrase "denying or abridgingthe right to vote," as used in Section 5, refers only to retrogression.Beer held, rather, that the term "effect," as used in Section5, is limited to precluding enforcement of new voting practices that furtherimpair the voting strength of minorities. See id. at 141 ("It is thusapparent that a legislative reapportionment that enhances the position ofracial minorities with respect to their effective exercise of the electoralfranchise can hardly have the 'effect' of diluting or abridging the rightto vote on account of race within the meaning of § 5.") (emphasisadded).
As we have explained (Opening Br. 29-31), the Court's interpretation of"effect" in Section 5 in Beer reflected concerns about how farCongress intended Section 5's effect prong to reach beyond the Constitutionitself. The Court observed that, under the district court's applicationof Section 5 in Beer (which this Court rejected), Section 5's effect prongwould, as a practical matter, have been transformed into a statute prohibitingall new voting practices with a disparate impact on minorities. See 425U.S. at 136-137 & n.8; cf. id. at 143-144 (White, J., dissenting) (arguingthat Section 5 required "new electoral districts [to] afford the Negrominority the opportunity to achieve legislative representation roughly proportionalto the Negro population in the community"). Almost simultaneously withBeer, however, the Court concluded that proof of a violation of the EqualProtection Clause of the Fourteenth Amendment requires a showing of discriminatoryintent, and that the Clause does not prohibit state action with only a disparateimpact on racial minorities. See Washington v. Davis, 426 U.S. 229 (1976).The purpose prong of Section 5 raises no such questions about Congress'sintent to reach beyond the Constitution, however, because the purpose prongreaches only new voting practices enacted with invidious intent, and thereforeprecludes enforcement only of new voting practices that violate the Constitutionitself. Cf. Chisom v. Roemer, 501 U.S. 380, 416-417 (1991) (Scalia, J.,dissenting) (observing that "intentional discrimination in the electionof judges, whatever its form, is constitutionally prohibited, and the preclearanceprovision of § 5 gives the Government a method by which to preventthat").
Beer did refer to Congress's "desire[] to prevent States from 'undo[ing]or defeat[ing] the rights recently won'" by black citizens as a basisfor its holding. See 425 U.S. at 140 (initial brackets added). The Beeropinion did so, however, in the context of explaining why Congress had requiredcovered jurisdictions to demonstrate to the Attorney General or the districtcourt "that the [voting] change does not have a discriminatory effect,"ibid. (emphasis added)- not why Congress had prohibited enforcement of newvoting practices with a discriminatory purpose, which, the Court noted,was not at issue in that case, see id. at 136 n.7.4 Further, the Beer opinionexpressed no doubt that even an ameliorative change might be denied preclearanceif it "so discriminates on the basis of race or color as to violatethe Constitution," id. at 141; see id. at 142 n.14 ("It is possiblethat a legislative reapportionment could be a substantial improvement overits predecessor in terms of lessening racial discrimination, and yet nonethelesscontinue so to discriminate on the basis of race or color as to be unconstitutional.")(emphasis added).5
Appellee objects (Appellee Br. 17) that, under our submission, the purposeand effect prongs of Section 5 are not coterminous; a covered jurisdiction'spurpose to accomplish a particular "den[ial] or abridg[ment] [of] theright to vote on account of race or color" would require denial ofpreclearance, even though a voting change that merely had that incidentaleffect could be precleared, if it were adopted with a racially neutral purposeand were not retrogressive. It is a familiar principle, however, that "actsgenerally lawful may become unlawful when done to accomplish an unlawfulend." City of Richmond v. United States, 422 U.S. 358, 379 (1975) (bracketsomitted). That principle has played an important role in this Court's jurisprudenceconstruing the Civil War Amendments.6 It is not surprising, therefore, thata redistricting plan adopted for the purpose of preventing improvement inblacks' voting strength would violate the Constitution and would be deniedpreclearance under Section 5's purpose prong-even though the same redistrictingplan would not be unconstitutional and would therefore not be denied preclearanceif it were adopted for valid, racially neutral reasons, and if it had theincidental, nonretrogressive effect of limiting improvement in racial minorities'voting strength. See id. at 378 (emphasizing that it may be "forbiddenby § 5 to have the purpose and intent of achieving only what is a perfectlylegal result under that section," because an official action "takenfor the purpose of discriminating against Negroes on account of their racehas no legitimacy at all under our Constitution or under the statute").

B. The legislative history of the original enactment of Section 5 and itsthree reenactments confirms that Congress intended to bar implementationof all new voting practices that violate the Constitution because of theirpurpose to deny or abridge minority citizens' right to vote, and not justthose changes intended to erode further the electoral position of minorityvoters.
We have explained (Opening Br. 20-22) that Congress enacted Section 5 inlarge part to overcome official resistance to the registration of blackvoters, in particular ingenious state efforts that had successfully evadedthe effect of federal court decrees striking down state voting practicespreventing the registration of blacks.7 Congress was concerned that coveredjurisdictions would adopt new devices to freeze the existing disparity invoter registration between blacks and whites. See H.R. Rep. No. 439, 89thCong., 1st Sess. 15-16 (1965); S. Rep. No. 162, 89th Cong., 1st Sess. Pt.3, at 15-16 (1965) (joint views of 12 members of Senate Judiciary Committee);see also 111 Cong. Rec. 9794 (1965) (remarks of Sen. Hart) ("Section5 would enable the Attorney General and the courts to insure against changingthe laws since November [1964], which would have the effect of perpetuatingdiscrimination.") (emphasis added).
Attorney General Katzenbach's summary of litigation under the Civil RightsAct of 1957, which was influential in securing passage of the Voting RightsAct, see South Carolina v. Katzenbach, 383 U.S. 301, 313-315 (1966), emphasizedthat the new legislation was needed because, despite the Justice Department's"most vigorous efforts in the courts" to secure black citizens'right to vote as guaranteed by the Fifteenth Amendment by challenging discriminatorypractices inhibiting black voter registration, "there has been caseafter case of slow or ineffective relief." Voting Rights: Hearingson H.R. 6400 Before Subcomm. No. 5 of the House Comm. on the Judiciary,89th Cong., 1st Sess. 9 (1965) (House Hearings). In summarizing the unsatisfactoryoutcome of the case-by-case approach and the need for Section 5's preclearanceremedy, the House Judiciary Committee stressed: "The judicial processaffords those who are determined to resist plentiful opportunity to resist.Indeed, even after apparent defeat resisters seek new ways and means ofdiscriminating. Barring one contrivance too often has caused no change inresult, only in methods." H.R. Rep. No. 439, at 10; accord S. Rep.No. 162, Pt. 3, at 5.
Especially in light of the evidence before Congress in 1965 that tests anddevices in covered jurisdictions had been highly effective in blocking mostblack voter participation, it is simply implausible that Congress limitedSection 5's purpose prong to bar only new voting practices intended to makematters even worse. Congress was informed, for example, that, in WilcoxCounty, Alabama, there were zero blacks registered to vote (out of a blackvoting age population of 6085, which was much larger than the white votingage population of 2647), and that similar, exceedingly small numbers ofblack citizens were registered to vote in numerous counties where discriminatorytests and devices were administered. See S. Rep. No. 162, Pt. 3, at 44-45;House Hearings 8, 32-37. Under the logic of appellee's argument, Section5 had little if any role to play in those counties, because it would havebeen difficult if not impossible to cause further diminishment in the votingstrength of black citizens there.8
The relevant committees, moreover, plainly perceived the function of Section5 as enforcing the commands of the Constitution's prohibitions against officialracial discrimination in voting. The House Judiciary Committee summarizedSection 5's operation by stating that a covered jurisdiction "willnot be able to enforce [a new voting practice] without obtaining a declaratoryjudgment that [it] does not have the purpose and will not have the effectof denying or abridging rights guaranteed by the 15th amendment." H.R.Rep. No. 439, at 26. Similarly, the supportive members of the Senate JudiciaryCommittee stated that "so long as State laws or practices erectingvoting qualifications do not run afoul [of] the 15th amendment or otherprovisions of the Constitution, they stand undisturbed." S. Rep. No.162, Pt. 3, at 18. No suggestion was made of any limitation to new votingpractices intended to cause further encroachments on such constitutionalrights.
The legislative records of the reenactments of Section 5 also contradictappellee's submission that Congress intended Section 5 only to address retrogressionof minority voting strength. When Section 5 was reenacted in 1970 and 1975,the relevant congressional committees emphasized that the preclearance remedyremained necessary because, although black citizens were no longer subjectto absolute denials of their right to vote through registration tests, coveredjurisdictions had attempted to preempt increased black voting strength byadopting at-large elections, increasing filing fees, abolishing electiveoffices, and extending the terms of white incumbents. See H.R. Rep. No.397, 91st Cong., 1st Sess. 7 (1969); S. Rep. No. 295, 94th Cong., 1st Sess.17 (1975). In 1975, both the Senate and House Judiciary Committees statedwith approval that it was "largely Section 5" that had been responsiblefor gains in minority voting strength, see id. at 19; H.R. Rep. No. 196,94th Cong., 1st Sess. 11 (1975)-an observation inconsistent with appellee'ssubmission that Section 5 was intended merely to prevent retrogression fromgains that minorities might have somehow achieved through other means. Seealso City of Rome v. United States, 446 U.S. 156, 182 (1980) (observingthat Congress reenacted Section 5 in 1975 to preserve gains achieved "andto promote further amelioration of voting discrimination" and "tocounter the perpetuation" of pervasive voting discrimination) (emphasisadded).
When Congress comprehensively reviewed the enforcement history of Section5 in 1982 and reenacted it again, the definitive Senate Report did not describepreventing retrogression as the sole function of Section 5. That Reportstressed, in fact, that Section 5 had been "designed to insure thatold devices for disenfranchisement would not simply be replaced by new ones,"S. Rep. No. 417, 97th Cong., 2d Sess. 6 (1982), and that "[c]ontinuedprogress toward equal opportunity in the electoral process will be haltedif we abandon the Act's crucial safeguards [in Section 5] now," id.at 10. See also 128 Cong. Rec. 13,288 (1982) (remarks of Sen. Hatch) (favoringcontinued preclearance because, among other things, "[f]ew would arguethat all traces of the discriminatory history that existed in some of thecovered jurisdictions have been eradicated"); id. at 13,293 (remarksof Sen. Grassley) (observing that "[t]he gains in minority electoralparticipation achieved through the protections of [Section 5] reflect thesuccess with which it has been implemented" and "[t]he strengthof the act as originally adopted lay in its power to proscribe discriminatorypractices as they evolved").

C. These materials demonstrate that the purpose prong of Section 5 has beenfundamental to dismantling the massive edifice of official racial discriminationin voting that existed in 1965, has been equally important in preventingthe use of new discriminatory devices to perpetuate that discriminationin other guises, and was never intended to be limited to new voting practicesthat would make matters even worse (especially not worse than they werein 1965). And as we have previously explained (Opening Br. 32-33), in 34years of administering Section 5, the Justice Department has never limitedits "purpose" analysis in the administrative preclearance processto an examination of a covered jurisdiction's "retrogressive purpose."9Appellee's submission, however, would reduce the purpose prong of Section5 to a trivial matter, limited to preventing enforcement of those votingchanges that are intended to cause retrogression but are destined to failin doing so (since any new voting practice that actually "will * ** have the effect" of retrogression will be denied preclearance underthe effect prong). The Court should reject a construction of Section 5 thatwould render its purpose prong so insignificant. Cf. Muscarello v. UnitedStates, 524 U.S. 125, 136-137 (1998) (rejecting narrow construction of "carries"in statute punishing one who "uses or carries" a firearm because,having adopted a narrow construction of "uses," Court could not"also construe 'carr[ies]' narrowly without undercutting the statute'sbasic objective" and "leaving a gap in coverage that we do notbelieve Congress intended").

II. A COVERED JURISDICTION BEARS THE BURDEN OF PROVING THAT ITS NEW VOTINGPRACTICE DOES NOT HAVE A DISCRIMINATORY PURPOSE

A. The text and legislative history of Section 5, as well as this Court'sdecisions, establish that jurisdictions covered by Section 5 bear the burdenof proving the absence of a discriminatory purpose in their new voting practices.
1. Section 5 provides that, whenever a covered jurisdiction shall enactor seek to administer a new voting practice, the jurisdiction "mayinstitute an action * * * for a declaratory judgment that" the newvoting practice does not have a prohibited purpose or effect. 42 U.S.C.1973c. "[U]nless and until the court enters such judgment" infavor of the covered jurisdiction, the new voting practice may not be enforced.Ibid. The statute alternatively permits the jurisdiction to submit the newvoting practice to the Attorney General for preclearance, and provides thata new practice "may be enforced * * * if the [new practice] has beensubmitted * * * to the Attorney General and the Attorney General has notinterposed an objection within sixty days after such submission." Ibid.
Under the litigation framework established by Section 5, the covered jurisdictionmust initiate the preclearance action in district court, and may not enforceits new voting changes until that action is resolved. The covered jurisdictionis placed in the position of a plaintiff in a civil action who requeststhat the court remove a legal impediment applicable to it. Traditionallyin civil litigation, the plaintiff bears the burden of proof in at leastits primary sense, viz., the risk of nonpersuasion. See 21 Charles AlanWright & Kenneth W. Graham, Jr., Federal Practice and Procedure §5122, at 553-557 (1977). Congress is presumed to be aware of such well-establishedlegal principles when it enacts legislation, see Goodyear Atomic Corp. v.Miller, 486 U.S. 174, 185 (1988); Cannon v. University of Chicago, 441 U.S.677, 699 (1979), and not to deviate from them absent express indicationin the statute, see Morissette v. United States, 342 U.S. 246, 261-262 (1952).The text of Section 5 therefore places the risk of nonpersuasion in a preclearanceaction on the covered jurisdiction. See McCain v. Lybrand, 465 U.S. 236,257 (1984).

2. The legislative history of Section 5 makes abundantly clear that thecovered jurisdiction bears the burden of proof. The placement of the burdenof proof on covered jurisdictions was a significant focus of oppositionto the Voting Rights Act. During legislative hearings on the Act, AttorneyGeneral Katzenbach was questioned several times about the burden of proofand each time confirmed that it would lie with the covered jurisdiction.House Hearings 87, 90, 93, 95. Opponents of the bill criticized the preclearanceprovision because of its "presumption of the irregularity of Statevoting laws, and the rules, regulations, and resolutions of its subdivisions"and its requirement that a covered jurisdiction "absolve itself ofan automatically presumed guilt." H.R. Rep. No. 439, at 43 (views ofRepublican Judiciary Committee members); see also S. Rep. No. 162, Pt. 2,at 29 (statement of Thomas H. Watkins, submitted by Sens. Eastland, McClellan,and Ervin, criticizing preclearance proposal because covered jurisdictionsmust "secure[] an adjudication, with the accompanying burden of proof,"that new voting practices would not discriminate) (emphasis in original).
During Congress's consideration of the first extension of Section 5, severalproposals were made to shift the burden of proof to the Attorney General.The House Judiciary Committee rejected such proposals and observed:
The decision [in Allen v. State Board of Elections, 393 U.S. 544 (1969)]underscores the advantage section 5 produces in placing the burden of proofon a covered jurisdiction to show that a new voting law or procedure doesnot have the purpose and will not have the effect of discriminating on thebasis of race or color. * * * Failure to continue this provision of theact would jettison a vital element of the enforcement machinery. It wouldreverse the burden of proof and restore time-consuming litigation as theprincipal means of assuring the equal right to vote.
H.R. Rep. No. 397, at 8. Members of the Senate, whether supporting or opposingthe extension of Section 5, similarly understood it as placing the burdenof proof on the covered jurisdiction.10
When Congress reenacted Section 5 in 1975, it additionally made clear thatit intended the covered jurisdiction to shoulder the burden of proof inboth preclearance actions in the district court and in the Attorney General'sadministrative review of voting changes. The House Judiciary Committee explainedthat Section 5 "presumes that the change has the purpose or would havethe effect of discriminating on the basis of race or color. * * * If noevidence is submitted to overcome the presumption the District Court orthe Attorney General must disapprove the change." H.R. Rep. No. 196,at 59.
The Senate Report accompanying the 1982 extension of Section 5 shows thatCongress again determined that the covered jurisdiction's burden of proofis central to enforcement of the Fourteenth and Fifteenth Amendments. Indescribing the proper operation of Section 5's preclearance provisions,the Senate Report stated that "[t]he Attorney General or the [UnitedStates District Court for the District of Columbia] was required to withholdapproval until the submitting jurisdiction shows that the change will notbe discriminatory in purpose or effect. This provision was designed to insurethat old devices for disenfranchisement would not simply be replaced bynew ones." S. Rep. No. 417, at 6. The Subcommittee on the Constitutiondescribed the operation of Section 5 in the same way: "A jurisdictionseeking to preclear a voting change under section 5 has the burden of showing* * * that the voting change under review 'does not have the purpose andwill not have the effect of denying or abridging['] the voting rights ofa covered minority group." Subcomm. on the Constitution of the SenateComm. on the Judiciary, 97th Cong., 2d Sess., Voting Rights Act: Reporton S. 1992, at 52-53 (Comm. Print 1982). Legislators who opposed the extensionof the Act in 1982 criticized Section 5 specifically because it placed theburden of proving the "absence of discrimination" on covered jurisdictions.See S. Rep. No. 417, at 220 (minority views of Sen. East); 128 Cong. Rec.13,292 (1982) (remarks of Sen. Helms).

3. This Court has consistently held that Section 5 places the burden onthe covered jurisdiction to prove the absence of a discriminatory purpose.City of Pleasant Grove, 479 U.S. at 469; see J.S. App. 34a-35a, 38a (BossierI); McCain v. Lybrand, 465 U.S. at 257; City of Rome, 446 U.S. at 187; Georgiav. United States, 411 U.S. 526, 538 (1973); South Carolina v. Katzenbach,383 U.S. at 335; see also City of Petersburg v. United States, 354 F. Supp.1021, 1027 (D.D.C. 1972), aff'd mem., 410 U.S. 962 (1973).
In those decisions, the Court has identified several reasons why Congressdecided to impose the burden on the covered jurisdictions. In South Carolinav. Katzenbach, the Court explained that, because Congress had found case-by-caselitigation to be inadequate to combat persistent discrimination in voting,Congress had decided to "shift the advantage of time and inertia fromthe perpetrators of the evil to its victims." 383 U.S. at 328. Moreover,the Court stressed, given that covered jurisdictions had previously "resortedto the extraordinary stratagem of contriving new rules of various kindsfor the sole purpose of perpetuating voting discrimination in the face ofadverse federal court decrees[,] * * * there was nothing inappropriate ** * in putting the burden of proof on" covered jurisdictions seekingpreclearance. Id. at 335.
In Georgia v. United States, the Court rejected the contention that theburden of proof in the administrative preclearance process must rest withthe Attorney General. In that case, Georgia challenged the Attorney General'sregulations governing administrative preclearance, which placed the burdenof proof on the jurisdiction submitting changes to the Attorney Generalto show that its new voting practice would not have a prohibited purposeor effect. The Court observed that "[i]t is well established that ina declaratory judgment action under § 5, the plaintiff State has theburden of proof," 411 U.S. at 538, and described the question beforeit as whether the Attorney General was obligated to adopt a more lenientapproach towards covered jurisdictions in the administrative preclearanceprocess, or, put another way, whether the Attorney General "is withoutpower to object unless he has actually found that the changes containedin a submission have a discriminatory purpose or effect," id. at 537.Explaining that "[t]he alternative procedure of submission to the AttorneyGeneral merely gives the covered State a rapid method of rendering a newstate election law enforceable," id. at 538 (internal quotation marksomitted), the Court upheld the Attorney General's regulations because "[a]nyless stringent standard might well have rendered the formal declaratoryjudgment procedure a dead letter by making available to covered States afar smoother path to clearance." Ibid.11
These decisions are consistent with a common-sense approach towards theburden of proof in preclearance cases. Congress was concerned that coveredjurisdictions would employ new voting practices to evade the effect of thesuspension of discriminatory tests and devices in Section 4 of the Act,42 U.S.C. 1973b. Congress therefore required covered jurisdictions to showthat their new voting practices were not merely attempts to perpetuate racialdiscrimination by other means. Further, the covered jurisdiction is in possessionof most of the information relevant to establishing the validity vel nonof a new voting practice, including, most pertinently, evidence that wouldbear on the question of its own purpose. Finally, given that Congress foundthat the covered jurisdictions had engaged in intentional racial discriminationin voting in the past, it was sensible for Congress to establish, in effect,a presumption that future voting practices enacted by covered jurisdictionswould also have a discriminatory purpose, and to require those jurisdictionsto demonstrate that such a presumption was rebutted in a particular case.

B. Although, as we have shown, the burden of proof in preclearance casesis on the covered jurisdiction, it is important not to exaggerate the onerousnessof that burden. In the litigation context, that burden means simply thatthe jurisdiction must establish to the satisfaction of the preclearancecourt by a preponderance of the evidence that its plan does not have a discriminatorypurpose and will not have a retrogressive effect. See Grogan v. Garner,498 U.S. 279, 286 (1991) (preponderance-of-evidence standard is presumedto govern in civil cases); see also City of Petersburg, 354 F. Supp. at1027 (in the first Section 5 declaratory judgment action, district courtstated that "plaintiff must meet the burden placed upon it by the VotingRights Act of proving by the preponderance of the evidence that its change"does not violate Section 5). In practical terms, the covered jurisdictionand the United States (and any party permitted to intervene, as in thiscase) each presents evidence to the preclearance court on the question ofthe jurisdiction's intent and the voting change's likely effect, and therisk of nonpersuasion falls on the jurisdiction. If the evidence is in equipoise,or if the district court is in doubt about the proper outcome, then preclearanceshould be denied. See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121,138-139 (1997) (where "burden of persuasion [is] on the proponent ofan order," and "when the evidence is evenly balanced, the proponentloses"); cf. O'Neal v. McAninch, 513 U.S. 432, 437-438 (1995).
The Court's decision in Village of Arlington Heights v. Metropolitan HousingDevelopment Corp., 429 U.S. 252, 265-266 (1977), provides the frameworkfor litigation on the question of purpose in preclearance cases, just asit does in cases in which the burden of proof rests with a party seekingto invalidate state action; the only difference in preclearance cases isthat the risk of nonpersuasion in the event of equipoise or doubt fallson the covered jurisdiction. Thus, to demonstrate the absence of discriminatoryintent, the jurisdiction may explain the process by which it decided toadopt the relevant new voting practice. Following Arlington Heights, id.at 266-268, the jurisdiction may bring forward evidence on the impact ofthe change, the historical background of the decision, the sequence of eventsleading to the official action, adherence to nondiscriminatory factors ordinarilyconsidered important by the decisionmaker and to procedures ordinarily followedin imposing its actions, and the legislative history, especially contemporarystatements by legislators. Discovery should give the government the opportunityto test those assertions and to obtain any contrary or impeaching evidence.Just as Arlington Heights instructs that departures from usual substantiveand procedural practices may indicate discriminatory intent, see id. at267, evidence that decisions were taken in conformity with regular proceduresand traditional, nondiscriminatory substantive priorities can assist a jurisdictionin demonstrating that a new voting practice lacks an invidious purpose.
In the administrative preclearance process, the Attorney General appliesa burden of proof similar to that applied by the preclearance court. See28 C.F.R. 51.52(a). The history of Section 5 enforcement demonstrates, however,that this burden of proof has not created any undue obstacle to preclearanceof covered jurisdictions' new voting practices. Covered jurisdictions continueto choose the administrative process for the vast majority of voting changes;our records show that only 62 declaratory judgment preclearance actionshave been filed since Section 5 was enacted. Further, the Attorney Generalinterposes no objection to the great majority of submissions. Although theDepartment of Justice has received approximately 333,390 voting changessubmitted for preclearance review from the Act's enactment to July 22, 1999,the Attorney General has interposed objections to fewer than 1% (3,071)of those changes. The majority of those objections (about 60% of those madein the 1990s) appear to have been made on the basis of discriminatory, butnonretrogressive, purpose. The fact that the Department has objected toonly 3,071 new voting practices in more than 30 years indicates that theDepartment's preclearance procedures are effective at identifying thosevoting changes where there is reason to believe that an invidious purposeis afoot without being unduly onerous to jurisdictions. See S. Rep. No.417, at 49 (Senate report recommending extension of Act in 1982 found thatDepartment does not unduly burden jurisdictions when reviewing changes submittedfor preclearance).
Further, the Department's published procedures for preclearance submissionsprovide jurisdictions with substantial guidance in establishing that theirproposed voting changes do not have a discriminatory purpose and will nothave a retrogressive effect. The procedural guidance informs jurisdictionsof the kind of information that is needed to facilitate the Attorney General'sreview. See 28 C.F.R. 51.27, 51.28. The procedures are specifically designedto elicit information bearing on the Arlington Heights factors for determiningwhether a new voting practice has been enacted with an unconstitutional,discriminatory purpose.12 Moreover, when the Department receives a submission,it does not immediately proceed to a determination whether the jurisdictionhas met its burden of proof or interpose an objection in the event the jurisdictionhas failed to submit certain relevant information. When additional informationis necessary to complete the review, the Department's practice is to notifysubmitting jurisdictions of that fact as promptly as possible, and to providethem with the opportunity to supply such additional information before adetermination is made. See 28 C.F.R. 51.37(a) and (d).

C. Under the principles discussed above, the district court erred in grantingpreclearance in this case. To the extent the district court may have consideredwhether appellee's 1992 redistricting plan lacked a discriminatory (butnonretrogressive) purpose, its analysis of that point is inconsistent withthe placement of the burden of proof on appellee. The district court statedthat "the record will not support a conclusion that extends beyondthe presence or absence of retrogressive intent." J.S. App. 3a. Ifthe record "will not support a conclusion" by the court on thequestion of a discriminatory but nonretrogressive purpose, however, thenthe risk of nonpersuasion should fall on the covered jurisdiction, not thegovernment and the intervenors. The district court also stated that it could"imagine a set of facts that would establish a 'non-retrogressive,but nevertheless discriminatory, purpose,' but those imagined facts arenot present here." Id. at 3a-4a. The question before the district court,however, was not whether the proffered facts established a discriminatorypurpose, but whether they established the absence of a discriminatory purpose.13Any finding made by the district court that appellee acted without a discriminatorypurpose, therefore, cannot be sustained on appeal.