Perkins v. Matthews/Dissent Black

Mr. Justice BLACK, dissenting.

In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), this Court upheld the Voting Rights Act of 1965 as a legitimate exercise of congressional power to enforce the provisions of the Fifteenth Amendment. I agreed with the majority that Congress had broad power under § 2 of the Fifteenth Amendment to enforce the ban on racial discrimination in voting. However, I dissented vigorously from the majority's conclusion that every part of § 5 of the Voting Rights Act was constitutional. The fears which precipitated my dissent in Katzenbach have been fully realized in this case. The majority, relying on Katzenbach, now actually holds that the City of Canton, Mississippi, a little town of 10,000 persons, cannot change four polling places for its election of aldermen without first obtaining federal approval.

Section 5 of the Voting Rights Act provides that no political subdivision subject to the Act may adopt any voting law or election practice different from that in effect on November 1, 1964, without first going all the way to Washington to submit the proposed change to the United States Attorney General or to obtain a favorable declaratory judgment from the United States District Court for the District of Columbia. I have stated my belief, in dissents in Katzenbach and Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), that this section of the Voting Rights Act of 1965 violates the United States Constitution because it deprives a few States and their political subdivisions of the power to make their own laws and govern themselves without advance federal approval. Under our Constitution as the Founding Fathers drafted it and as the people have adopted and amended it, I believe the power of the States to initiate and enforce their own laws cannot be so easily taken away.

This case poignantly demonstrates the extent to which the Federal Government has usurped the function of local government from the local people to place it in the hands of the United States District Court for the District of Columbia and the United States Attorney General, both being over a thousand miles away from Canton, Mississippi. The last election for aldermen in the City of Canton before the one here in issue was held in 1965. If the procedures used in the 1965 election had been used in the 1969 election, four of the five aldermen would have been elected from wards. In two of these wards white voters were in a majority and in the other two black voters were in a majority. One alderman would have been elected at large. The city adopted three changes for the 1969 elections. Detailed consideration of these changes shows that they pertained solely to local concerns in which the National Government has no proper interest and did not involve racial discrimination.

Polling Places.-The city altered four of the local polling places. Two were moved because the old polling places had been located on private property and the owners would not longer consent to the use of their property for voting. I find it incredible to believe that Congress intended that the people of Canton would have to travel to Washington to get the Attorney General's consent to rent new polling places. Another polling place was moved because the old one did not have sufficient space to accommodate voting machines. Finally, the fourth place was moved from a courthouse to a public school to eliminate interference with courtroom proceedings. It is difficult for me to imagine a matter more peculiarly and exclusively fit for local determination than the location of polling places for the election of town aldermen. Nor is there the slightest indication that any of these changes were motivated by or resulted in racial discrimination. The United States District Court unanimously agreed on undisputed evidence that the appellants' attack on the changes in polling places had 'no merit.' Yet, the majority of this Court has now decided that the City of Canton cannot move its polling places without first submitting the proposed change to the politically appointed Attorney General or a District Court over a thousand miles away. Presumably, the majority is ready to hold, if necessary, that the City of Canton could not change from ballots to voting machines without obtaining similar federal approval. I dissent from any such utter degradation of the power of the States to govern their own affairs.

Boundary Extensions.-The majority also finds that Canton violated the Act by making three separate extensions of the City's boundaries between 1965 and 1969. The 1965 extension of the city limits added 46 Negro voters to the voter registration rolls. That annexation added no white voters. The 1966 annexation added 28 black voters and 187 white voters. The 1968 annexation added eight black voters and 144 white voters. In sum, the three extensions added 82 black voters and 331 white voters. These figures must be viewed in relation to the voting population of the city on January 12, 1969, when there were 2,052 white voters and 2,794 Negro voters. It is apparent that even if these 1969 figures included no voters from the annexed areas, the additions would not alter the racial balance of voters in Canton. Moreover, it is undisputed that at the time of the election in question an absolute majority of the voters in Canton was black. Finally, the District Court found that the annexations were not part of 'a stratagem deliberately designed to overturn a black majority at the municipal polls.'

In my view, the Constitution prohibits the Federal Government from requiring federal approval of state laws before they can become effective. Proposals for such congressional veto power over state laws were made at the Constitutional Convention and overwhelmingly rejected. The Fourteenth Amendment did not alter the basic structure of our federal system of government. The Fourteenth Amendment did bar discrimination on account of race and did give the Federal Government power to enforce the ban on racial discrimination. In this case the Congress has attempted to enforce the ban on racial discrimination by requiring the States to submit their laws or practices to federal approval even before they are initiated. In my view that requirement attempts to accomplish the constitutional end of banning racial discrimination by a means requiring submission of proposed state laws to the Attorney General-that violates the letter and the spirit of the Constitution. But here the Court goes even further: it permits the use of an unconstitutional means in a case where the parties have not shown racial discrimination.

At-large Elections.-In 1962, before Congress enacted the Voting Rights Act of 1965, Mississippi passed a state statute requiring cities to conduct all elections for aldermen by having all candidates run at large. For some reason not revealed in the record, the City of Canton failed to comply with that law in the 1965 elections for aldermen. The majority now holds that because Canton violated Mississippi law in the 1965 elections, the city must violate the same law again in future elections unless the officials of Canton secure federal permission to abide by the admittedly valid law of their State.

In my view Congress did not intend and the Constitution does not permit such a perversion of our federal system of government. Nor can the majority support its unprecedented decision on the grounds of racial discrimination. It is beyond my comprehension how the change from wards to an at-large election can discriminate against Negroes on account of their race in a city that has an absolute majority of Negro voters.

One vice of § 5 is that it attempts to shortcut the Federal Government's job in policing racial discrimination in voting by radically curtailing the power of certain States to conduct their own elections while leaving other States wholly free of any such restraint. Moreover, § 5 is unnecessary to the enforcement of the Voting Rights Act and can only serve to cause irritation and pernicious divisiveness in those States to which it applies. When Mississippi or any other State abridges the rights of citizens on account of race, the proper course for the United States is to institute suit in a federal court to have the discriminatory practice halted. Of course, in such proceedings, the state statute or practice is presumed valid, and it is up to the Attorney General to prove that the challenged act or practice is discriminatory. Only after discrimination has been established does the Federal Government have the power under the Fourteenth Amendment and the Supremacy Clause to interfere with the State's conduct of its own affairs.

This Act attempts to reverse the proper order of things. Now the Congress presumes-a presumption which the Court upholds-that state statutes regulating voting are discriminatory and enpolitically appointed officials that the joins their enforcement until the State can convince distant federal judges or statute is not discriminatory. This permits the Federal Government to suspend the effectiveness or enforcement of a state act before discrimination is proved. But I think the Federal Government is without power to suspend a state statute before discrimination is proved. The inevitable effect of such a reversal of roles is what has happened in this case-a nondiscriminatory state practice or statute is voided wholly without constitutional authority.

Except as applied to a few Southern States in a renewed spirit of Reconstruction, the people of this country would never stand for such a perversion of the separation of authority between state and federal governments. Never would New York or California be required to come begging to the City of Washington before it could enforce the valid enactments of its own legislature. Never would this law have emerged from congressional committee had it applied to the entire United States. Our people are more jealous of their own local governments than to permit such a bold seizure of their authority.

Finally, I dissent from the remedy adopted by the Court. The majority adds insult to injury by remanding this case to the District Court with instructions to determine whether Canton should be required to hold a new election. This Court has always heretofore been rightly hesitant in interfering with elections even for the grossest abuses. The majority now departs from our many precedents for restraint in election cases and suggests to the District Court that it may be appropriate to invalidate the 1969 election and require the village to undergo the great expense and tremendous disruption of a new election. Such a remand of this case is inappropriate for at least two reasons. First, the majority's decision is not predicated upon any actual discrimination against voters by the city of Canton, but merely upon a failure to seek federal approval for de minimis changes in its election machinery. The majority does not pretend that any actual discrimination has been proved in this case. Citations to the finding of the United States Civil Rights Commission about past instances of racial discrimination and to statements made by Congressmen who supported the 1965 Voting Rights Act do not prove discrimination in this case. In the absence of affirmative proof of racial discrimination, I believe it would be an abuse of any remedial discretion that may be vested in the federal judiciary to compel Canton to hold a new election. Second, I believe that in remanding this case, my Brethren are neglecting their constitutional duty to decide an issue necessary to the full disposition of this case. This case has been in litigation since May 1969 and the election has already been postponed once. By the time the majority's mandate is acted upon by the District Court and we have disposed of the jurisdictional statement which will inevitably follow, Canton's 1973 elections will be just around the corner. In this posture, to require a new election would not be a remedy for a constitutional or statutory wrong but a harsh and oppressive punishment wholly unwarranted by the facts of this case. Moreover, an order directing a new election would be a 'shotgun' sanction, damaging all of the candidates and all of the people in Canton. Useless campaign expenses would have to be borne by both white and black candidates. And the town, through property or sales taxes imposed on all citizens, black or white, rich or poor, would have to collect tax money to pay the expenses of a new election. I need not remind the District Judges below that elections are expensive and that all southern towns are not rich. I am convinced that if the majority were to confront the issue of an appropriate remedy now, the Court would not void the election or compel the city to hold a new election. To the contrary, the 1969 election would be upheld because the alleged violations of the Act are so very minor and so clearly technical. We should not forget that while it is easy for judges to order new elections, it will be neither easy nor inexpensive for the little city of Canton to comply with such an order.

For the reasons set out above and in my dissents in South Carolina v. Katzenbach, supra, and Allen v. State Board of Elections, supra, I would affirm the judgment of the United States District Court.