Hardy v. Wallace

¶1concurring.

¶2I concur in Judge Vance’s opinion because I am of the opinion that it represents a correct extrapolation of the Supreme Court decisions since the initial passage of the Voting Rights Act. I do believe that the Supreme Court’s zeal to make a good law “better” may bring into question whether it has, at some point, impinged on the right to legislate reserved to Congress. The scope of the law has come a long way since Attorney General Katzenbach emphasized that the “bill really is aimed at getting people registered,” 1965 House Hearings 21, and since Assistant Attorney General Burke Marshall stated that “The problem that the bill was aimed at was the problem of registration____” Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., Sec. 2, p. 74.

¶3It strikes me as peculiar that § 5, which has been variously described as “perhaps the most stringent of these remedies, and certainly the most extraordinary;”1 “an uncommon exercise of Congressional Power;” 2 a “substantial departure ... from the ordinary concepts of our federal system;”3 and considered to be unconstitutional by Justice Black should be interpreted so as to give it “the broadest possible scope.”

¶4While I agree with the dissenting opinions of Justice Harlan in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) and in Perkins v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) and of Justice Powell in Dougherty County, I agree with Judge Vance that the majority opinions in those cases and other cases dictate our present decision. The facts of this case appear to be akin to the various “dilution” cases decided with reference to §§ 2 and 5.4 The interpretation of the Act in those cases has been bolstered by Congress amending the Act on occasions subsequent to these cases. While the subsequent recognition by Congress of a broad interpretation by the courts of earlier enacted legislation appears to me to be a circuitous route to legislation, it has been accomplished.

¶5The key appears to be what it takes to make a vote “effective” as provided in 42 U.S.C. § 1973¿ (e)(1) (1981). Carried to its extreme this definition could include almost any legislation which tends to thwart the desires of any voter or a particular group of voters. I suggest that this case lies on the outer perimenters of the law and I concur only because of the special circumstances described by Judge Vance.

¶6This 30 day of January, 1985.