Perkins v. Matthews/Concurrence Harlan

Mr. Justice HARLAN, concurring in part and dissenting in part.

Our role in this case, as the Court correctly recognizes, is limited to determination whether § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1964 ed., Supp. V), required the city of Canton to obtain federal approval of the way it proposed to run its 1969 elections. For this reason, I am unable to join the dissenting opinion of Mr. Justice BLACK, post, p. 401, although, like him, I see little likelihood that the changes here involved had a discriminatory purpose or effect.

I agree with the Court, and for substantially the reasons it gives, that the city should have submitted the relocation of polling places for federal approval. But I cannot agree that it was obliged to follow that course with respect to the other two matters here at issue.

* Whether or not Congress could constitutionally require a State to submit all changes in its laws for federal approval, cf. South Carolina v. Katzenbach, 383 U.S. 301, 358-362, 86 S.Ct. 803, 833-835, 15 L.Ed.2d 769 (1966) (separate opinion of Black, J.), the Voting Rights Act does not purport to do so. Section 5 requires submission of changes 'with respect to voting' only. The Court seems to interpret this restriction as including any change in state law which has an effect on voting, if changes of that type have 'a potential for racial discrimination in voting.' Ante, p. 389. The limitation implied by the latter clause will prove meaningless as a practical matter. Given a change with an effect on voting, a set of circumstances may be conceived with respect to almost any situation in which the change will bear more heavily on one race than on another. In effect, therefore, the Court requires submission of any change which has an effect on voting. I think it plain that the statutory phrase-'with respect to voting'-was intended to have more limited compass.

The legislative history of the Voting Rights Act was examined in the majority opinion and a separate opinion in Allen v. State Board of Elections, 393 U.S. 544, 564-571, 588-591, 89 S.Ct. 817, 831-835, 843-845, 22 L.Ed.2d 1 (1969). No useful purpose would be served by retraversing ground covered there. The Court concluded from its reivew of the history that § 5 was 'intended to reach any state enactment which altered the election law of a covered State in even a minor way.' Id., at 566, 89 S.Ct. at 832. The Court's opinions in both Allen and this case are devoid of evidence of a legislative intent to go beyond the State's election law and to reach matters such as annexations, which affect voting only incidentally and peripherally. Fairley v. Patterson, decided with Allen, and the remarks of the Solicitor General in his amicus brief in that case are plainly distinguishable on this basis. At least in the absence of a contrary administrative interpretation, I would not go beyond Allen to hold that annexations are within the scope of § 5. The Court's assertion that the Attorney General does in fact interpret the Act differently seems to me to give too much weight to the passing remark of an Assistant Attorney General. Cf. Allen v. State Board of Elections, 393 U.S., at 568-569, 89 S.Ct. at 833.

Fairley v. Patterson held that a change from election by districts to election at large was within the scope of § 5. The question for determination here is which of the two procedures was 'in force or effect on November 1, 1964.' The Court interprets the quoted phrase to mean the procedure which probably would have been followed if an election had been held on the crucial date, regardless of the provisions of controlling state law. While this interpretation is not wholly unreasonable, I find it unlikely that it is the one Congress would have preferred if it had thought about the problem. Resolution of the hypothetical factual question required by the Court's test would be quite inconvenient, if not unmanageable, for the Attorney General or the District Court for the District of Columbia, far from the scene. Moreover, under the Court's test, results may turn on the seeming fortuity that in the first election after November 1, 1964, local officials forgot about a controlling statute of statewide application and no private citizen brought suit to have the election set aside. Barring state attempts to resurrect long-ignored statutes, I would interpret 'procedure * *  * in force or effect on November 1, 1964,' to mean the procedure required by state law. Under this interpretation I would hold that the change from election by wards to election at large occurred on the effective date of the 1962 state statute, and therefore that it did not require approval under § 5.

I must confess that I am somewhat mystified by the Court's discussion of the appropriate remedy in this case. For the reasons set out in my partial dissent in Allen, 393 U.S., at 593-594, 89 S.Ct. at 845-846, I would direct the holding of new elections if, and only if, the city fails to obtain approval from the appropriate federal officials within a reasonable time. If such approval is forthcoming, I see no justification for requiring a rerun of the 1969 elections. See the opinion of Mr. Justice BLACK, post, this page. If the approval is not forthcoming, the fact of violation of the federal statute, as interpreted by this Court, and the possibility that the changes had a discriminatory purpose or effect seem to me to require new elections in the absence of exceptional circumstances which I cannot now foresee. In any event, the District Court is entitled to more guidance on this score than the Court provides.

Mr. Justice BLACK, dissenting.