Perkins v. Matthews/Opinion of the Court

by William J. Brennan, Jr.

United States Supreme Court

400 U.S. 379

Perkins  v.  Matthews

 Argued: Oct. 20, 1970. --- Decided: Jan 14, 1971

Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. V), ^[1] provides that whenever a State or political subdivision covered by the Act ^[2] shall enact or seek to administer 'any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964 * * * no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure' if the State or subdivision has not first obtained a declaratory judgment in the United States District Court for the District of Columbia that such qualification, prerequisite, standard, practice, or procedure 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color,' or unless the chief legal officer or other appropriate official of such State or subdivision has submitted the qualification, prerequisite, standard, practice, or procedure to the Attorney General of the United States 'and the Attorney General has not interposed an objection within sixty days after such submission.' The question in this case is whether the city of Canton, Mississippi, was precluded by § 5 from enforcing at the 1969 elections for mayor and aldermen certain changes with respect to voting not first submitted to the Attorney General or to the District Court for the District of Columbia.

Appellants, voters and candidates for mayor or alderman, sought to enjoin the 1969 elections in this action brought in the United States District Court for the Southern District of Mississippi. ^[3] They alleged that the requirements at the 1969 elections differed from those in effect on November 1, 1964, and at the last mayoral and aldermanic elections in 1965 because of (1) changes in locations of the polling places, (2) changes in the municipal boundaries through annexations of adjacent areas which enlarged the number of eligible voters, ^[4] and (3) a change from ward to at-large election of aldermen. The city of Canton, they alleged, sought to enforce these changes without first submitting them to the Attorney General or obtaining a declaratory judgment under § 5. Pending the convening of the court of three judges required by § 5, a single judge temporarily restrained the elections, which were originally scheduled for the spring of 1969. The three-judge court, however, after hearing, dissolved the temporary injunction and dismissed the complaint. 301 F.Supp. 565 (1969). The elections were then held in October 1969 with the challenged changes in effect. ^[5] We noted probable jurisdiction. 397 U.S. 903, 90 S.Ct. 901, 25 L.Ed.2d 85 (1970). We reverse.

* The three-judge court misconceived the permissible scope of its inquiry into appellants' allegations. Our decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817 (1969), handed down two months before this action was instituted, settled that question. The inquiry should have been limited to the determination whether 'a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny.' Id., at 561, 89 S.Ct. at 829. Allen held explicitly '(t)he only issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement.' Id., at 558-559, 89 S.Ct. at 828. For emphasis, we added:

'It is important to distinguish the instant cases from those brought by a State seeking a declaratory judgment that its new voting laws do not have a discriminatory purpose or effect. * * * In the latter type of cases the substantive questions necessary for approval (i.e., discriminatory purpose or effect) are litigated, while in the cases here decided the only question is whether the new legislation must be submitted for approval.' Id., at 555-556, n. 19, 89 S.Ct., at 826. (emphasis supplied).

The single judge who first acted in this case before the three-judge court was convened recognized that Allen so limited the inquiry. In his unreported oral opinion granting temporary relief, he correctly stated:

'The only questions to be decided by * * * the three judge court to be designated, (are) whether or not the State of Mississippi or any of its political subdivisions have acted in such a way as to cause or constitute a voting qualification or prerequisite to voting or standard, practice or procedure with respect to voting within the meaning of Section 5 of the Voting Rights Act of 1965, which changed the situation that existed as of November 1, 1964, and whether or not prior to doing so the City had filed a request for declaratory judgment with the United States District Court for the District of Columbia or asked for approval of the Attorney General of the United States * * *.'

He correctly observed further that, although there was no proof that the challenged annexations which changed the city's boundaries were made for the purpose of denying anyone any voting right or any right guaranteed by the Fourteenth or Fifteenth Amendments, 'the case of Allen versus State Board of Elections held it is not the function or prerogative of this Court, even if it were now sitting as a three judge court, to determine the motive of the City in extending its boundary.' For Allen had explicity held that, as between the United States District Court for the District of Columbia and other district courts 'Congress intended to treat 'coverage' questions differently from 'substantive discrimination' questions,' 393 U.S. at 559, 89 S.Ct. at 828, and therefore: 'we do not consider whether this change has a discriminatory purpose or effect.' 393 U.S., at 570, 89 S.Ct. at 834. This is not to say that a district court limited to deciding a 'coverage' question should close its eyes to the congressional purpose in enacting § 5-to prevent the institution of changes which might have the purpose or effect of denying or abridging the right to vote on account of race or color, for Congress meant to reach 'the subtle, as well as the obvious, state regulations * * *' which may have that effect. 393 U.S. at 565, 89 S.Ct. at 831. What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General-the determination whether a covered change does or does not have the purpose or effect 'of denying or abridging the right to vote on account of race or color.'

The single judge made the limited examination of the claims concerning boundary extensions and selection of polling places permitted by Allen and, on the basis of preliminary findings that both were required to be submitted under § 5, granted the temporary injunction. ^[6] But the three-judge court (which included the single judge) did not adhere to Allen's holding. As we read the opinion of the three-judge court, the challenged changes were examined on the merits to determine whether they had 'a discriminatory purpose or effect.' This emerges with particular clarity in the court's consideration of the annexations. Canton's failure to obtain prior approval of the annexations was held not to violate the Act on the express ground that 'the black voters still had a majority of not less than 600 after the expansions were effected.' 301 F.Supp., at 567. Similarly, in considering the change from ward to at-large election of aldermen, as provided by a 1962 Mississippi statute, Miss.Code Ann. § 3374-36 (Supp. 1968), the court remarked, 'Since a majority of the voters in Canton are black it is equally true that under the 1962 Act the black voters have the power, if they wish to be influenced by race alone to elect an all black governing body.' Id., at 568.

It is true that the three-judge court disclaimed reliance on lack of discriminatory effect as the basis for its holding that the change from ward to at-large election of aldermen was not covered by § 5; the court stated that its decision rested on the fact that the 1962 law antedated the Voting Rights Act of 1965 and should be complied with 'regardless of whether (the city) complied in 1965.' Ibid. It is further true that in finding 'no merit' in the challenge to the relocation of the polling places, the court based the holding on proofs that '(t)he changes were made necessary because one place did not have space for voting machines, two others had to be moved because they had been situated on private property (bank lobbies) and permission to use the space had been withdrawn, and another was moved out of the courthouse to a school building because facilities were more ample and the move eliminated any interference with sessions of the various courts sitting at the courthouse.' Ibid. Nevertheless, these considerations, so far as relevant, are relevant only to the questions reserved by § 5 for consideration by the Attorney General of the United States or the District Court for the District of Columbia.

However, in the interest of judicial economy, we shall not remand to the District Court for the making of a properly limited inquiry. The record is adequate to enable us to decide whether the challenged changes should have been submitted for approval, and we shall, therefore, decide that question.

We held in Allen that Congress intended that the Act be given 'the broadest possible scope' to reach 'any state enactment which altered the election law of a covered State in even a minor way.' 393 U.S., at 566, 567, 89 S.Ct. at 832. 'It is significant that Congress chose not to include even * * * minor exceptions (e.g., changing from paper ballots to voting machines) in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.' Id., at 568, 89 S.Ct. at 833. Tested by that standard, each of the three changes challenged in this case falls within § 5, if not as a 'voting qualification or prerequisite to voting,' at all events as a 'standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964.'

Even without going beyond the plain words of the statute, we think it clear that the location of polling places constitutes a 'standard, practice, or procedure with respect to voting.' The abstract right to vote means little unless the right becomes a reality at the polling place on election day. The accessibility, prominence, facilities, and prior notice of the polling place's location all have an effect on a person's ability to exercise his franchise. Given § 5's explicit concern with both the purpose and the effect of a voting 'standard, practice, or procedure,' the location of polling places comes within the section's coverage. Moreover, the legislative history provides ample support for the conclusion that Congress intended § 5 to cover a change in polling places. Before the Senate Judiciary Committee, the Attorney General explicitly testified that a change in 'the place of registration' and a change 'from a paper ballot to a machine' were changes of the kind that § 5 was designed to reach. ^[7] Plainly the relocation of the polling places is precisely the same kind of change. Moreover, there inheres in the determination of the location of polling places an obvious potential for 'denying or abridging the right to vote on account of race or color.' 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed., Supp. V). Locations at distances remote from black communities or at places calculated to intimidate blacks from entering, or failure to publicize changes adequately might well have that effect. Consequently, we think it clear that § 5 requires prior submission of any changes in the location of polling places.

Changing boundary lines by annexations which enlarge the city's number of eligible voters also constitutes the change of a 'standard, practice, or procedure with respect to voting.' Clearly, revision of boundary lines has an effect on voting in two ways: (1) by including certain voters within the city and leaving others outside, it determines who may vote in the municipal election and who may not; (2) it dilutes the weight of the votes of the voters to whom the franchise was limited before the annexation, and 'the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). Moreover, § 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), provides a clear-cut illustration of the potential of boundary changes for 'denying or abridging the right to vote on account of race or color.' In addition, based on the findings of an 18-month study of the operation of the Voting Rights Act by the United States Civil Rights Commission, the Commission's director reported to Congress that gerrymandering and boundary changes had become prime weapons for discriminating against Negro voters:

'The history of white domination in the South has been one of adaptiveness, and the passage of the Voting Rights Acts and the increased black registration that followed has resulted in new methods to maintain white control of the political process.

'For example, State legislatures and political party committees in Alabama and Mississippi have adopted laws or rules since the passage of the act which have had the purpose or effect of diluting the votes of newly enfranchised Negro voters. These measures have taken the form of switching to at-large elections where Negro voting strength is concentrated in particular election districts, facilitating the consolidation of predominantly Negro and predominantly white counties, and redrawing the lines of districts to divide concentrations of Negro voting strength.' Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 17 (1969) (remarks of Mr. Glickstein). ^[8]

In Fairley v. Patterson, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), a companion case to Allen, this Court held that § 5 applied to a change from district to at-large election of county supervisors on the ground that

'(t)he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).' 393 U.S., at 569, 89 S.Ct. at 833.

Mr. Justice Harlan's separate opinion in that case accurately recognized that the Court's holding rested on its conclusion that 'Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and protect Negroes against a dilution of their voting power.' Fairley v. Patterson, supra, at 588, 89 S.Ct. at 843. In terms of dilution of voting power, there is no difference between a change from district to at-large election and an annexation that changes both the boundaries and ward lines of a city to include more voters. We follow Fairley and hold that § 5 applies to the annexations in this case.

Our conclusion that both the location of the polling places and municipal boundary changes come within § 5 draws further support from the interpretation followed by the Attorney General in his administration of the statute. '(T)his Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.' Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The Attorney General's interpretation was recently reported by officials of the Department of Justice in testimony related to the extension of the 1965 Act. ^[9] They testified that the Department regarded relocating polling places and annexing territory ^[10] as falling within the Act. Their testimony also indicated that this interpretation was accepted by at least some affected States and political subdivisions, which had submitted such changes for the Attorney General's approval. Hearings on Amendments to the Voting Rights Act of 1965 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 248 (1969), id., 2d Sess., 506 (1970).

In support of this testimony, the Justice Department submitted a formal table showing the 313 changes in laws with respect to voting which had been submitted to the Attorney General and acted upon by him between 1965 and 1969. The Department divided its responses to these submissions into three categories: (1) changes that the Department did not consider within the scope of § 5; (2) changes that the Department considered within the scope of § 5, but to which the Department did not object; and (3) changes within the scope of § 5 to which the Department objected as discriminatory. Every change in boundary or election district lines ^[11] as well as every change in polling places shown in that table was considered by the Department to be within the scope of § 5. Hearings on Voting Rights Act Extension before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, pp. 308 313 (1969).

The change from ward to atlarge elections of all aldermen was of course a change within the coverage of the Act. Fairley v. Patterson, supra, is dispositive of that question. However, the question arises in this case in a peculiar context. The change to at-large elections was mandated by a Mississippi statute enacted in 1962. But Canton ignored the mandate in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards. ^[12] Canton now argues that it had no choice but to comply with the 1962 statute in the 1969 elections.

We have concluded, nevertheless, that the change to at-large elections required federal scrutiny under § 5. That section in express terms reaches any standard, practice, or procedure 'different from that in force or effect on November 1, 1964.' In our view, § 5's reference to the procedure 'in force or effect on November 1, 1964,' must be taken to mean the procedure that would have been followed if the election had been held on that date. That judgment is necessarily a matter of inference in this case since Canton did not hold a municipal election on November 1, 1964. But in drawing that inference, there is little reason to blind ourselves to relevant evidence in the record by restricting our gaze to events that occurred before that date. Ordinarily we presume that officials will act in accordance with law. See First National Bank of Albuquerque v. Albright, 208 U.S. 548, 553, 28 S.Ct. 349, 350, 52 L.Ed. 614 (1908). If the only available facts showed that Canton conducted its 1961 election by wards but that the Mississippi Legislature had subsequently enacted a statute in 1962 requiring future municipal elections to be held at large, Canton officials would be entitled to the weight of that presumption.

With the benefit of hindsight, however, we know that Canton elected its aldermen by wards in its June 1965 municipal election. The record reflects no relevant change between November 1964 and June 1965 to suggest that a different procedure would have been in effect if the elections had been held seven months earlier. Consequently, we conclude that the procedure in fact 'in force or effect' in Canton on November 1, 1964, was to elect aldermen by wards. That sufficed to bring the 1969 change within § 5. As was the case in Allen, 'It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when * * * (Canton) became subject to the Act; * * *' 393 U.S., at 570, 89 S.Ct. at 834. The bearing of the 1962 statute upon the change was for the Attorney General or the District Court for the District of Columbia to decide.

The appellants have urged that, in addition to reversing the District Court judgment, the Court should set aside the elections held in October 1969, and order new elections held forthwith in which the changes challenged in this case may not be enforced. In Allen we declined a like invitation and gave that decision only prospective effect, primarily because the scope of § 5 coverage was then an issue of first impression and 'subject to rational disagreement.' 393 U.S. at 572, 89 S.Ct. at 835. That reasoning is inapplicable in this case since Allen was decided two months before the originally scheduled dates of the Canton elections.

In arguing for new elections, appellants emphasize the desire of Congress to ensure that States and subdivisions covered by the Act not institute new laws with respect to voting that might have a racially discriminatory purpose or effect. On the basis of the legislative history, there is little question that Congress sought to achieve this goal by relying upon the voluntary submission by affected States and subdivisions of all changes in such laws before enforcing them. Failure of the affected governments to comply with the statutory requirement would nullify the entire scheme since the Department of Justice does not have the resources to police effectively all the States and subdivisions covered by the Act, see Allen, 393 U.S., at 556, 89 S.Ct. at 826-827 and since private suits seem unlikely to sufficiently supplement federal supervision. Moreover, based upon ample proof of repeated evasion of court decrees and of extended litigation designed to delay the implementation of federal constitutional rights, Congress expressly indicated its intention that the States and subdivisions, rather than citizens seeking to exercise their rights, bear the burden of delays in litigation. ^[13]

At the same time, we recognize that, in determining the appropriate remedy, other factors may be relevant, such as the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5. In certain circumstances for example, it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming. Since the District Court is more familiar with the nuances of the local situation than are we, and has heard the evidence in this case, we think the question of the appropriate remedy is for that court to determine, in the first instance, after hearing the views of both parties. ^[14]

The judgment of the District Court is reversed, and the case is remanded to that court with instructions to issue injunctions restraining the further enforcement of the changes until such time as the appellees adequately demonstrate compliance with § 5, and for further proceedings consistent with this opinion.

It is so ordered.

Reversed and remanded with instructions.

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in the judgment.

Given the decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), a case not cited by the District Court, I join in the judgment of reversal and in the order of remand.

Notes

1. The full text of § 5, 42 U.S.C. § 1473c (1964 ed., Supp. V), provides:
2. Mississippi and its subdivisions have been determined to be covered by the Act. 30 Fed.Reg. 9897 (Aug. 6, 1965).
3. '(A)n individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny.' Allen v. State Board of Elections, 393 U.S. 544, 561, 89 S.Ct. 817, 829, 22 L.Ed.2d 1 (1969). We construed the statute to require such a suit to be heard by a three-judge court. Ibid.
4. Appellants alleged that prior to the Voting Rights Act of 1965, less than 200 black citizens of Canton were qualified electors. At the trial of this lawsuit, one of the appellants testified that there were approximately 3,050 registered black electors and 2,850 white electors, for the 1969 election. Based on an average index of two voters per residence, the District Court concluded that the 1969 figures included approximately 82 black voters and 176 white voters from the annexations in this case. The annexations in this case also increased the land area of the city by approximately 50% and required the boundaries of all four election wards to be changed to conform to the new city limits.
5. The municipal primary elections were originally scheduled for May 13 and 20, 1969, and the municipal general elections for June 3, 1969. The primary elections were actually held October 7 and 14, and the general election October 28, 1969, after the three-judge court dissolved the temporary injunction.
6. The claim concerning the change from ward to at-large election of aldermen was added by amendment.
7. 'The Chairman: I say, is it not a fact that the keystone of this situation is that these changes in procedures that we are talking about, like changing from a paper ballot to a machine, may not likely have the effect of denying or abridging rights guaranteed by the 15th amendment?
8. One Congressman who had supported the 1965 Act observed, 'When I voted for the Voting Rights Act of 1965, I hoped that 5 years would be ample time. But resistance to progress has been more subtle and more effective than I thought possible. A whole arsenal of racist weapons has been perfected. Boundary lines have been gerrymandered, elections have been switched to an at-large basis, counties have been consolidated, elective offices have been abolished where blacks had a chance of winning, the appointment process has been substituted for the elective process, election officials have withheld the necessary information for voting or running for office, and both physical and economic intimidation have been employed.
9. Congress has extended the life of the 1965 Act, including § 5, from 1970 to 1975. Voting Rights Act Amendments of 1970, Pub.L. 91-285, 84 Stat. 314.
10. In its amicus brief filed in this Court in Fairley v. Patterson, No. 25, O.T.1968, the Government took the position that § 5 applied to 'laws (that) substantially change the constituency of certain elected officials * * *. There is surely no doubt today that the right to vote can be curtailed as effectively by an impermissible demarcation of an elected official's constituency as by the destruction of ballots or the refusal to permit access to the voting booth.' Memorandum for the United States as Amicus Curiae 13. While the Government was arguing there that § 5 reached a change from ward to at-large elections, its interpretation is equally germane to the boundary annexations in the present case. Mr. Justice Harlan argues that the apparent clarity of the Department's position, taken before congressional committees and before this Court, is clouded by the Department's failure to challenge unsubmitted annexations in covered States. However, the Government, in its amicus brief in Fairley, specifically denied that any significance could be attributed to the Government's failure to bring suit. In arguing that § 5 applied to redistricting and reapportionment in States covered by the Act, the Government stated:
11. The table reflects the fact that only South Carolina has complied rigorously with § 5. Through June 1969, it submitted 252 changes for approval, including all three annexations (and one consolidation) that were approved by the state legislature between 1965 and 1969. No political subdivisions of South Carolina, however, submitted any changes on their own initiative. Georgia and its subdivisions had submitted 60 changes for approval, including one annexation, one consolidation of election districts, and two changes in the lines of election districts. It is true that the Georgia Session Laws reflect numerous annexations that were not submitted to the Attorney General. It is also true that the Georgia Session Laws reflect at least an equal number of changes, obviously covered under any interpretation of § 5, that were also not submitted. For example, in 1965, the Georgia State Legislature enacted the following acts, each applicable to one municipality, which were not submitted to the Attorney General: four acts changing voter qualifications in municipal elections, three acts changing municipal elections from paper ballots to voting machines, four acts completely revising municipal election codes, and two acts requiring a majority vote, instead of a plurality, for election of city officials. In 1968, the Georgia State Legislature enacted the following acts, each applicable to one municipality, which were not submitted to the Attorney General: seven acts changing the dates of municipal elections and increasing the terms of municipal officials, one act creating a voter residency requirement and an oath to be taken by all voters, one act changing the number of aldermen and requiring a majority vote for election of aldermen, one act changing voter qualifications, and one act completely revising a municipal election code. Nor is this an exhaustive list even for those two years. The remaining four States covered by the Act-Mississippi, Alabama, Louisiana, and Virginia-have submitted a combined total of 33 changes. The only conclusion to be drawn from this unfortunate record is that only one State is regularly complying with § 5's requirement.
12. The reason for Canton's failure to conform its election to state law does not appear in the record. On oral argument, appellee's counsel stated that the lapse was due to his overlooking the 1962 law.
13. E.g., Hearings on H.R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 60, 72 (1965); Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, pp. 14 17 (1965); 111 Cong.Rec. 10727 (1965) (remarks of Sen. Tydings); id., at 15645, 15648 (remarks of Rep. Celler); id., at 16221 (remarks of Rep. Corman). Opponents of the Act also recognized the severity of § 5's requirements. E.g., id., at 10725 (remarks of Sen. Talmadge); id., at 15657 (remarks of Rep. Willis).
14. We add only one restriction: If the District Court decides that a new election is required, Canton should be permitted to enforce any changes at the new election for which it can obtain federal approval.