Petition — United Jewish Organizations of Williamsburgh, Inc. v. Carey
Supreme Court brief1977
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| Supreme Cowt, U.S.
FILED
JUL ¥7 1975
MICHAEL RODAK, JR. CLERE
IN THE
Supreme Court of the United States
OCTOBER TERM 1975
No. 75-104
UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURGH, INC., er al.,
Petitioners,
HUGH L. CAREY, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NATHAN LEWIN, Esq.
Miller, Cassidy, Larroca & Lewin
2555 M Street, N.W.. Suite S00
Washington, D.C. 20037
(202) 293-6400
Attorney for Petitioners
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Tet CASI: LAS PRESS INC - 1717 © Street NW Washingt i 223122
INDEX
Page
a oe eae 6 ae eee ce |
ae ee ne an 6h ae hae dee eek nae neal 2
ee ewe seateuneneans 2
is . cin CR eke ea ee bee ee eal he wae ba Ga 3
REASONS FOR GRANTING THE WRIT ..............005. 10
ea es a ona ae Sai om ne ofl eee Dane 16
CiTATIONS
Cases:
Anderson v. Martin,
i a a ee he aie 13
Beer v. United States,
374 F. Supp. 363(D.D.C.), probable jurisdiction
a eceeeeouehee ues 11
City of Richmond vy. United States,
atm aa , 43 U.S.L.W. 4865 (U.S. June 24, 1975) .. . 10.11.15
Cousins vy. City Council of Chicago,
466 F.2d 830 (7th Cir. 1972),
Ee ED 6 6 06 00.06 6600606000060N0nRS 14
DeFunis v. Odegaard,
ES 06600 4060-000500000 SSR eRNEAORNEKOSES 13
Dobson vy. Mayor and City Council of Baltimore,
Bs SN, TP Be BOER oc cc cc tb ckstncscencsceses 14
Ferrell v. Oklahoma,
339 F. Supp. 73(W.D. Okla.),
re Se TEs 6 0 60605580468 daseeween keene de 14
(11)
Page
Fortson vy. Dorsey,
Pn: Soe Gcte Tso. eee eee ere eae ce 14
Gaffney v. Cummings,
Se CC eee OUR e echt oe eee beet eh uals 14
Georgia v. United States,
I cc cu usc ee gol ee ee hans cece laleeee se 11
Howard y. Adams County Board of Supervisors,
PTE, DUNE 6 a6 00 606s st cen eeucseeeeseseee 14
Ince v. Rockefeller,
es I Ss WUD oo 6 60-0606 60d ccenecesecns 14
Kilgarin v. Martin,
252 F. Supp. 404 (S.D. Tex. 1966), rev'd on other
i ns os oo ode 5646-3 0600538484480 14
Mann v. Davis,
24S F. Supp. 241 (E.D. Va.),
re SS IE «os do v's 4 0'0 0 65.60 bob bd 66600080 e448 14
Milliker v. Bradley.
ed he tik ewan oe a oe ipreel wee eae 1S
NAACP vy. New York,
es MIS, 50's ob Wo 6 6.60 00046 be ee eee eee ens 3
New York vy. United States,
eg Cs SO on non ob eb ee was eb oe eee us 3
Swann vy. Charlotte - Mecklenburg Board of Education,
oe aie peti Cea aeu ene wae ekie ee 1S
Torres v. Sachs,
ls I ls SUED io 6 6 004 0 0604046465006 0068408 3
Whitcomb v. Chavis,
Re a eh a nS Be ere 14
(iii)
Page
White v. Register,
Po 0 re re ce 14
Wright v. Rockefeller,
Se Se. oe ccccenéceswetevenesseensasensees 13
Zimmer v. McKeithen,
Se Be: BEG 6c 6 000000 00enseeenevesenss 14
Statutes:
28 U.S.C. §1331 (1970)... eee eee eee eee eenes 7
28 U.S.C. §1343 (1970)... cece cree cece cece vecevenevees 7
28 U.S.C. §1357 (1970)... cece cere eee e cree een eeenees 7
Voting Rights Act of 1965, §5, 42 U.S.C. SOOVEE cc ccsceccces passim
Laws of New York, ch. 11 (1972), .
chs. 588, 589, 590, 591, 599 (1974)... ee eee passim
se
IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
No.
UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURGH, INC., et al.,
Petitioners,
| HUGH L. CAREY, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners hereby request that a writ of certiorari issue
to review the judgment of the United States Court of Ap-
peals for the Second Circuit in this case entered on January
6, 1975S.
OPINIONS BELOW
The majority and dissenting opinions in the Court of Ap-
peals (per Judges Oakes and Frankel, respectively) are
reported at 510 F.2d 512. (Appendix E, pp. 7a-SOa). The
opinion of the district court (per Judge Bruchhausen) is
reported at 377 F.Supp. 1164 (App. H, pp. 53a-S8a).
2
JURISDICTION
The judgment of the Court of Appeals was entered on
January 6, 1975 (App. E, pp. Sa-6a). A timely petition for
rehearing and a suggestion for rehearing en banc were
denied on February 27, 1975 (Apps. C & D, pp. 3a-4a). On
May 19, 1975, Mr. Justice Marshall extended the time
within which to file a petition for a writ of certiorari to and
including June 27, 1975 (App. B, p. 2a). On June 25, 1975,
Mr. Justice Blackmun extended the time within which to
file a petition to and including July 18, 1975, (App. A, p.
la). The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether the Fourteenth and Fifteenth Amendments
were violated by a deliberate racial gerrymander under
which election lines were drawn on a racial standard to
secure ten districts with white voting populations at 35 per-
cent or less. :
2. Whether such a gerrymander was rendered con-
stitutional by the fact that it was carried out under the in-
structions of the United States Department of Justice, pur-
porting to implement the Voting Rights Act of 1965.
3. Whether a racial gerrymander can be viewed as
“corrective action’’ to remedy past discrimination if there
has been no affirmative finding by any court or government
agency that there was past voting discrimination which
required correction and if there is no rational relationship
between the form of the remedy and the nature of the
discrimination it assertedly ‘“‘corrects.”’
3
STATEMENT
In January 1972, the New York Legislature enacted a
legislative reapportionment law. Laws of New York (1972),
ch. 11. As a result of subsequent judicial decisions — in-
cluding particularly Torres v. Sachs, 73 Civ. 3921 (S.D.N.Y.
1973), NAACP v. New York, 413 U.S. 345 (1973), and New
York v. United States, Civ. No. 2417-71 (D.D.C. 1974) — it
was held that the 1972 reapportionment had to be sub-
mitted to the Attorney General or to a federal court for ap-
proval under Section S of the Voting Rights Act of 1965, 42
U.S.C. § 1973c. Such a submission was made on January
31, 1974. Sixty days later — on the last day when an ob-
jection could be asserted under the law — the Department
of Justice (through Assistant Attorney General J. Stanley
Pottinger) advised New York officials that (emphasis ad-
ded):
On the basis of all the available demographic facts
and comments received on these submissions as
well as the state’s legal burden of proving that the
submitted plans have neither the purpose nor the
effect of abridging the right to vote because of the
race or color, we have concluded that the
proscribed effect may exist in parts of the plans in
Kings and New York Counties.
The grounds for this conclusion that the “effect” of the
reapportionment ‘‘may’”’ be to abridge the right to vote on
the basis of race, as stated in the Assistant Attorney
General’s letter, were that one Senate district in Brooklyn
“appears to have an abnormally high minority con-
centration while adjoining minority neighborhoods are
significantly diffused into surrounding districts,”’ and that
with regard to Brooklyn Assembly districts ‘‘the minority
population appears to be concentrated into districts 53, M4.
55 and 56, while minority neighborhoods adjoining those
districts are diffused into a number of other districts."’ The
4
letter stated that the Department knew “‘of no necessity for
such configuration”’ and that it ‘believe[d] other rational
alternatives exist.”’
The NAACP had filed a lengthy memorandum attacking
the plan, had alleged that it was the product of purposeful
racial discrimination and had claimed that its necessary ef-
fect was to abridge the right to vote in violation of the Fif-
teenth Amendment. The Department of Justice refused to
make any finding of improper purpose or any affirmative
finding that racial discrimination had resulted. Its deter-
mination that the reapportionment was unlawful was based
entirely on the fact that the State had the burden of
disproving racial effect and that burden had not been met.
The responsible State officials disagreed with the con-
clusion,’ but they believed that litigation over the validity of
that evaluation would hinder the conduct of the 1974 elec-
tions. Accordingly, they determined to enact a reap-
portionment scheme that would satisfy the Department of
Justice. Heading the group of professionals who were in-
volved in this effort was Richard S. Seolaro, Executive
Director of the Joint Legislative Committee on Reap-
portionment, which had been created by the New York
Legislature in March 1965S.
' There was testimony by some State officials indicating their own
disagreement, and the brief for the State respondents in the Court of Ap-
peals reported as follows (Brief for Appellees Wilson, Ghezzi, Anderson
and Duryea, p. 7):
While neither the State defendants nor the Joint Legislative
Committee on Reapportionment subscribed to the ruling of
the Justice Department as expressed in the April 1, 1974 let-
ter of Assistant Attorney General J. Stanley Pottinger, the
exigencies of time required that new legislation be enacted
immediately to satisfy the objections of the Department of
Justice. ...
See also Complaint Exhibit VII, pp. 2-3 (Report of the Joint Legislative
Committee).
5
Scolaro testified during a hearing in this case that in or-
der to determine which changes would satisfy the Depart-
ment of Justice and be approved under Section 5 of the
Voting Rights Act, he had ‘‘one very lengthy meeting in
person’’ and many telephone conversations with Justice
Department attorneys to learn what would satisfactorily
overcome the appearance of “concentration” and “‘dif-
fusion.”” One of the “‘diffused’’ Assembly districts — to
which the petitioners were assigned under the invalid 1972
apportionment — had a non-white population of 61.5 per-
cent, and Scolaro was told that this was not a sufficiently
“substantial’’ nonwhite population. He then testified as
follows:
I said how much higher do you have to go? Is 70
percent all right? They didn’t say yes or no, but
they indicated it is more in line with the way we
think in order to effect the possibility of a
minority candidate being elected within that
district.
I suggested 65 percent. It came out at that time
that it is a figure used by the NAACP in numerous
briefs and other documents.
I got the feeling, and I cannot vouch for this as
a matter of having been specifically said, but I left
that meeting indicating that 65 percent would be
probably an approved figure.
Scolaro and his staff thereafter formulated their reap-
portionment plan on the assumption that ‘‘anything under
6S would not be acceptable.”” Although the approximately
30,000 citizens who are represented by the petitioners com-
prise a cohesive group that has historically been kept in a
single State Assembly and Senate district, they could not be
kept unified in such a district unless the nonwhite
population fell below 6S percent. A plan that would have
increased the nonwhite population of the petitioners’
6
Assembly District while maintaining the group together
was rejected as inadequate. Scolaro testified that such a
plan was cast aside because “it was our determination at
that time, after all our consultation with the Justice Depart-
ment, that increasing a percentage from 61.5 to 63.4, would
not be acceptable to effect compliance.’’ Consequently, the
Commission proposed — and the New York legislature
quickly enacted —- the laws being challenged here, which
satisfied the Justice Department’s 65 percent standard and
resulted in significant dilution of the petitioners’ political
effectiveness by dividing the community they represent be-
tween two Senate and Assembly districts. Laws of New
York (1974), chs. 588, 589, 590, 591 and 599.
The petitioners are representatives of the Jewish residents
of the Williamsburgh area of Brooklyn, who are over-
whelmingly adherents of the Orthodox Jewish faith and
form a closely knit community of Hasidim. The Williams-
burgh Hasidim began to settle in substantial numbers in
the area during and after World War II, with the early set-
tlers being refugees from the Nazi holocaust and survivors
of the concentration camps. For the past 30 years, the com-
munity has developed and grown to its present size as a
substantially self-sustaining and law-abiding group. Its
distinctive religious rules and practices, which affect ap-
pearance and dress, make its members immediately iden-
tifiable and subject them to substantial discrimination and
hostility. The community’s leaders have been obliged to
turn increasingly to their elected officials to secure protec-
tion for their right to live peacefully and securely. While
other white residents of Williamsburgh have, during recent
years, left the region and moved elsewhere, the Hasidic
community has remained. As a result, it now finds itself
surrounded by neighborhoods that are heavily black or
Puerto Rican.
When the Hasidic community learned that it was going
to be split in half by the 1974 reapportionment — which it
7
viewed as ‘‘devastating”’ and ‘‘a direct slap in the face’ — it
instituted the present action challenging the 1974 reap-
portionment as a violation of the Fourteenth and Fifteenth
Amendments. The suit was filed on June 11, 1974, less than
two weeks after enactment of the 1974 laws. Jurisdiction of
the district court was invoked under 28 U.S.C. §§ 1331,
1343 and 1357.
Petitioners sought immediate relief against im-
plementation of the new reapportionment plan, which had
not yet been approved pursuant to Section 5 of the Voting
Rights Act. After a hearing held on the first day for signing
nominating petitions, Judge Bruchhausen initially in-
dicated he would grant a temporary restraining order but
then changed his mind. A full evidentiary hearing on a
motion for preliminary injunction was held on June 20,
1974,
? While the motion was under advisement, on July 1, 1974, the
Department of Justice issued a letter approving the new reap-
portionment plan. A ‘Memorandum of Decision’’ accompanied the ap-
proval letter, and it expressed the Justice Department's theory that
blacks and “‘Puerto Ricans in New York”’ are protected by the Fifteenth
Amendment and the Voting Rights Act, and that ‘nothing revealed by
our review of the circumstances surrounding the adoption of the Fif-
teenth Amendment, the passage of the Voting Rights Act and its
Amendments, the language of those provisons, their legislative history,
or the formula used for bringing states and political subdivisions under
the Act . . . indicates that Hasidic Jews or persons or Irish, Polish or Ital-
ian descent are within the scope of the special protections defined by the
Congress in the Voting Rights Act.’’ The Memorandum then expressed
the view, supported by no specific evidence, that ‘where black or
Puerto Rican candidates have ‘white’ opposition, the two groups tend
to unite behind the ‘minority’ candidate."’ On these premises, the 1974
reapportionment was approved because of the satisfactory combined
“nonwhite” population figures in each of the new districts. The
argument of Puerto Rican groups that the 1972 reapportionment had
given Puerto Ricans a more dominant minority position in some elec-
tion districts and that the Puerto Ricans were outnumbered by blacks
in all election districts under the 1974 reapportionment was rejected.
(continued)
8
On July 25, the district court denied the motion for
preliminary injunction and granted the defendants’
motions to dismiss the complaint. Judge Bruchhausen held
that the claims were ‘‘untenable’’ because only political
subdivisions may bring actions under the Voting Rights Act
and because there is no constitutional right to “community
recognition”’ in legislative apportionment. So far as the
reliance on racial criteria was concerned, Judge
Bruchhausen held that “racial considerations have been
approved to correct a wrong.’’ He did not specify what
“wrong” was being corrected here, or how the “correction’”’
was implemented by the 65 percent quota (App. 56a-58a).
Two judges of the court of appeals held that the
dismissal was correct. They noted that they did ‘“‘not
necessarily share’’ the Justice Department’s limited view of
the reach of the Voting Rights Act, and that there was “‘no
reason . . . that a white voter may not have standing, just as
a nonwhite voter, to allege a denial of equal protection as
well as an abridgment of this right to vote on account of
race or color . . . regardless of the fact that the fourteenth
and fifteenth amendments were adopted for the purpose of
ensuring equal protection to the black person” (App. 24a).
They held, however, that since there was no deliberate
legislative purpose ‘‘invidiously to cancel out or minimize
the voting strength of white voters in Kings County,” the
constitutional issue was whether “‘districting on racial lines
is per se unconstitutional” (App. 27a-28a). In this regard,
the majority asserted that since the Justice Department had
“é
concluded that the 1972 apportionment involved ‘“‘un-
? (continued)
And the claims of the present petitioners and other ethnic groups of
white citizens were summarily denied -— even though the Department
recognized that the Hasidic Jewish community in Williamsburgh and
the ethnic communities in North Brooklyn had been “‘affected’” —
because “the issues raised are not ones which the Attorney General has
authority to determine.”
ae
9
derrepresentation of race,” the Attorney General
‘necessarily had to think in racial terms in considering his
approval of the 1974 lines.’’ They concluded, accordingly,
that racial districting is valid if it ‘‘is in conformity with the
unchallenged’ directive of and has the approval of the At-
torney General of the United States under the Act, at least
absent a clear showing that the resultant legislative reap-
portionment is unfairly prejudicial to white or nonwhite . . .”
(App. 31a-32a).
Judge Frankel dissented because, in his view, the
drawing of district lines ‘“‘with a central and governing
premise that a set number of districts must have a predeter-
mined nonwhite majority of 65% or more in order to ensure
nonwhite control in those districts” violates the Con-
stitution (App. 32a-33a). Judge Frankel noted that the
quota requirement could not have been imposed “‘to correct
a wrong” because neither the legislature nor any respon-
sible official — neither the district court nor the majority
of the court of appeals — found the 65 percent rule ‘‘suited
as a remedy for the unsurmounted objections of the At-
torney General to the 1972 lines’ (App. 40a). Indeed, as
Judge Frankel noted, “nobody professes to have deter-
mined that the quota requirement was necessary or proper
as a remedy for supposed wrongs” (App. 41a). In addition,
Judge Frankel observed that the record provided no
reasonable basis, let alone any compelling necessity, for ‘‘a
scheme of nonwhite control (and white subordination)
through a predetermined minimum of 65% per selected
district’ (App. 40a). He concluded that this was ‘‘a case of
racial quotas that are evil and dangerous because there is
no semblance of justification for them” and that the laws
should, therefore, be found unconstitutional (App. 50a).
’ The “directive” was ‘“unchallenged,”’ of course, because only the
State is authorized to ‘‘challenge”™’ it directly and it chose not to do so
because of the time constraints. An action was, in fact, brought by in-
dividual legislators in the District Court for the District of Columbia.
and it was dismissed.
10
REASONS FOR GRANTING THE WRIT
1. This Court has consistently condemned, in most
vigorous terms, any form of deliberate racial discrimination
in voting. As recently as June 24, 1975, in City of Rich-
mond vy. United States, No. 74-201, a Court majority
recognized that “‘voting changes taken with the purpose of
denying the vote on the grounds of race or color’’ are in-
valid no matter what their actual effect may be (Slip
Opinion, p. 19). This case presents a clear undisputed in-
stance of purposeful racial discrimination and the im-
portant question it raises is whether such deliberate action
is constitutionally different when the victims’ skin is white
than if it is black, brown, red or yellow. There could surely
be no doubt that if a local government deliberately
gerrymandered its districts to keep black voters or Indians
at a 35-percent-or-less proportion, the apportionment
would be invalid. The same rule applies when this quota
governs white voters.
The decision in City of Richmond y. United States,
supra, eliminated the sole legal justification for this racial
classification relied upon by the district court, the majority
of the court of appeals, and the Department of Justice.
They all asserted, in substance, that it is permissible to
engage in racial discrimination in drawing district lines if it
is necessary “‘to correct a wrong’ (App. 58a). But this
Court’s ruling in City of Richmond was that even where
there has been deliberate discrimination against black
voters by past official action, the remedy may not extend to
the invalidation of voting standards which are now sup-
ported by ‘‘objectively verifiable legitimate reasons’’ (Slip
Opinion, p. 15). If the original annexation in City of Rich-
mond, found by overwhelming proof to be flagrantly and
deliberately discriminatory, did not warrant remedial
measures that would maximize the voting power of the
city’s black population, it follows, a fortiori, that the far less
egregious failure of New York State to prove the non-racial
11
effect of its 1972 reapportionment did not justify the im-
position of a remedy such as a 65% racial quota. Correction
of past discrimination by race-conscious remedies are much
less appropriate in New York’s case than in Richmond’s.
2. The issues presented here are related not only to those
in the City of Richmond case, but also to the questions un-
der consideration by this Court in Beer y. United States,
No. 73-1869, returned to the calendar for reargument on
April 23, 1975. Both Beer and City of Richmond concern
the validity of Justice Department disapprovals of a par-
ticular new ‘‘qualification, prerequisite, standard, practice
or procedure with respect to voting’’ on records amply
demonstrating past practices which were racially
discriminatory. The record in this case contains no finding
of past racial discrimination. Nor is there, in this case, a
direct challenge to the Department of Justice invalidation
of New York’s law. Because there was no time to sue, the
New York authorities accepted the Department of Justice
conclusion and, pursuant to official directives that were at
least implicit, fixed racial quotas for ten election districts.
The petitioners represent citizens personally affected by
these actions.
The constitutional questions are, therefore, com-
plementary to those in Beer and City of Richmond, insofar
as they concern the limits of the Attorney General’s power
under the Voting Rights Act. May he, absent any finding of
purposeful past racial discrimination, strike down a reap-
portionment plan on population statistics simply by using
the shift of burden of proof authorized in Georgia v. United
States, 411 U.S. 526 (1973)? Is the “highly concentrated’”’
and “‘significantly diffused’’ standard applied by the At-
torney General a permissible measure to determine the ef-
fect of a reapportionment under the Voting Rights Act and
the Fifteenth Amendment? If the Attorney General may
use this procedure and these standards to invalidate a reap-
portionment plan, is it constitutionally permissible for him
12
to advise State officials that adher< nce to a racial quota will
‘“‘correct’’ the inadequacy of the plan that he has rejected?
And may State officials, themselves obliged to accord to all
persons the equal protection of the laws, carry out such a
suggestion by drawing district boundaries primarily along
racial lines?*
The impact of the racial criteria on the plaintiffs is clear
from this record. Mr. Scolaro testified unequivocally as
follows (emphasis added):
Q. So that your reason for dividing the Hasidic
community was to effect compliance with the
Department of Justice determination, and the
minimum standard they impose — they appear
to impose?
A. That was the sole reason. We spent over a full
day right around the clock, attempting to come
up with some other type of districting plan that
would maintain the Hasidic community as one
entity, and I think that evidenced clearly by
the fact that the district is exactly 65 percent,
and it’s because we went block by block and
didn’t go higher or lower than that, in order to
maintain as much of the community as
possible.
* It is no answer to say, as the respondents might, that these issues
should be treated in suits under Section 5 brought by a State or
political subdivision against the United States or the Attorney General
under the Voting Rights Act. First, Section S expressly preserves, in its
next-to-last sentence, all privately instituted judicial remedies. Second,
there are and will be many situations where local governments will find
acceptance of the Attorney General's illegal directive to be the cheapest
and least disruptive course — even if it be at the expense of some white
minority. That is precisely what happened here. The minority should
not then be denied its judicial remedy because other government agen-
cies have joined in the unconstitutional action of the Attorney General
of the United States.
13
The majority of the court below rejected the petitioners’
constitutional challenge on the ground that the racially
motivated gerrymander, even if otherwise impermissible,
is lawful if directed or approved by the Attorney General.
This assumes, however, that the Attorney General is acting
constitutionally — a position we challenged below by
making the Attorney General a party to this action, and
that we continue to challenge here.
3. The basic constitutional question is, we believe, of
great national importance. In an age when much progress
is being made to remedy racial discrimination and correct
past inequities, a real danger has emerged that the correc-
tive process will wreak new wrongs on new victims. The
record of this case is, we believe, an illustration of such an
unfortunate result. Acting for motives that were doubtless
benign, the Department of Justice has seriously crippled
the developing political consciousness of a small ethnic
group that has heretofore been suspicious of the secular
society in which it lives, has been most hesitant to par-
ticipate in that society’s activities, and has been the victim
of much discrimination.
The issue presented here may be, as the majority below
recognized, “‘analogous”’ to the question argued but not
decided in DeFunis v. Odegaard, 416 U.S. 312 (1974). We
believe, however, that its resolution is much easier than that
of DeFunis. Much greater harm results from a racial quota
system in voting than in public higher education. More
than ten years ago, this Court unanimously recognized in
Anderson vy. Martin, 375 U.S. 399, 402 (1964), that our
democratic system cannot tolerate governmental action to
‘induce racial prejudice at the polls.”’ In a separate opinion
in Wright v. Rockefeller, 376 U.S. 52, 67 (1964), Mr. Justice
Douglas observed that the drawing of electoral lines on a
racial basis encourages groups to ‘“‘seek not the best
representative but the best racial or religious partisan.”’
Such a result, he said, ‘‘is at war with the democratic
14
ideal.’ But what purpose is served by demanding that ten
election districts in Brooklyn have at least 65 percent non-
white population other than to encourage that population
to vote on the basis of race?
This Court and lower courts have repeatedly emphasized
that “‘[f}ramers of voting districts are required to be
color blind.” Ince v. Rockefeller, 290 F. Supp. 878, 884
(S.D.N.Y. 1968). E.g., Gaffney v. Cummings, 412 U.S. 735,
751 (1973), quoting from Fortson v. Dorsey, 379 U.S. 433,
439 (1965); White v. Register, 412 U.S. 755 (1973); Whit-
comb vy. Chavis, 403 U.S. 124, 149-160 (1971); Mann vy.
Davis, 24S F. Supp. 241, 245 (E.D. Va.), aff'd, 382 U.S. 42
(196S) (“‘No line may be drawn to prefer by race or color.’’);
Kilgarlin y. Martin, 252 F. Supp. 404, 437 (S.D. Tex.
1966), rev'd on other grounds, 386 U.S. 120 (1967);
Cousins vy. City Council of Chicago, 466 F.2d 830, 842-843
(7th Cir. 1972), cert. denied, 409 U.S. 893 (1973); Ferrell v.
Oklahoma, 339 F. Supp. 73, 83 (W.D. Okla.), aff'd, 409
U.S. 939 (1972); Zimmer v. McKeithen, 485 F.2d 1297,
1305 (Sth Cir. 1972); Howard vy. Adams County Board of
Supervisors, 453 F.2d 455, 457-460 (Sth Cir. 1972); Dobson
v. Mayor and City Council of Baltimore, 330 F. Supp. 1290,
129% (D. Md. 1971). Judge Frankel properly observed that
the contrary rule “offends against the most fundamental
tenets of our constitutional scheme”’ (App. 43a). It should
be clear by now that justice will be achieved in this nation
not by drawing convoluted district lines that will aggregate
“nonwhite” residents in a manner maximally designed to
elect ‘‘nonwhite” legislators but by encouraging all resi-
dents to vote for the best possible representatives to speak
for them — irrespective of the candidates’ race. The con-
stitutional position taken by the Department of Justice and
by the majority of the court of appeals retards that goal
rather than advances it.
4. The decision of the majority conflicts with decisions of
this Court not only on the fundamental issue whether race-
1S
consciouness is permissible in districting but also on the
more narrow question of remedy. In Milliken v. Bradley,
418 U.S. 717, 738 (1974), this Court quoted its observations
in Swann vy. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 16 (1971), that “federal remedial power may be
exercised ‘only on the basis of a constitutional violation’
and ‘{als with any equity case, the nature of the violation
determines the scope of the remedy.’ ”’
Even if it were constitutionally permissible to utilize
some racial standard in electoral districting to ‘‘correct’’
past violations, there would have to be a rational relation
between the particular remedy imposed — in this case a
minimum 65 percent “nonwhite” population in ten districts
—and the wrong that is sought to be corrected. Judge
Frankel’s dissent noted the arbitrariness of the racial stand-
ard imposed here (App. 46a):
If people have been forced in or out because of
race, then, of course, the fences must be torn
down and the districts in this manner redrawn
lawfully. That is, the forbidden use of race must
be overcome by some condign remedy. But what is
the nature of the pre-existing wrong that could
make it condign or permissible to set up a mini-
mum quota of 65% or any percentage for one
race or group of races? This record and the
majority opinion will be searched in vain for an
answer to this question.
The short of the matter is that if the 65 percent quota
“directed” or “approved” by the Attorney General is a
“remedy” for any constitutional wrong, it is a “remedy”
that is not authorized by any decision of this Court and one
that conflicts directly with this Court’s view of proper
remedies in Milliken v. Bradley and in City of Richmond v.
United States.
16 la
CONCLUSION ASTERDER A
For the foregoing reasons, this petition for a writ of cer- SUPREME COURT OF THE UNITED STATES
tiorari should be granted. No. A-953
Respectfully yours,
NATHAN LEWIN UNITED JEWISH ORGANIZATION OF
Miller, Cassidy, Larroca & Lewin WILLIAMSBURG, INC., ET AL..,
2555 M Street, N.W. Petitioners
Washington, D.C. 20037 v.
(202) 293-6400
Attorney for Petitioners HUGH CAREY, ETAL.
ORDER FURTHER EXTENDING TIME TO FILE
PETITION FOR WRIT OF CERTIORARI
UPON CONSIDERATION of the application of counsel
for petitioners),
IT IS ORDERED that the time for filing a petition for
writ of certiorari in the above-entitled cause be, and the
same is hereby further extended to and including July 18,
1975.
/s/ Harry A. Blackmun
Associate Justice of the Supreme
Court of the United States
Dated this 25th
day of June, 1975S.
2a
APPENDIX B
SUPREME COURT OF THE UNITED STATES
No. A-953
UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURG, INC., ET AL.
Petitioners,
HUGH CAREY, ETAL.
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the application of counsel
for petitioner(s),
IT IS ORDERED that the time for filing a petition for
writ of certiorari in the above-entitled cause be, and the
same is hereby, extended to and including June 27, 1975.
/s/ Thurgood Marshall
Associate Justice of the Supreme
Court of the United States
Dated this 19th
day of May, 1975.
3a
APPENDIX C
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Court House, in the City of New York, on the twenty-
seventh day of February, one thousand nine hundred and
seventy-five
Present: HON. JAMES L. OAKES
Circuit Judge
HON. MARVIN E. FRANKEL
HON. ROBERT J. KELLEHER
District Judges
UNITED JEWISH ORGANIZATIONS OF WILLIAMS-
BURG, INC., ALBERT GRIEDMAN, HENRIETTE
FRIEDMAN, HELEN GREENWALD, HAROLD KLAGS-
BALD, LOPOLD LEFKOWITZ, DAVID LINDNER,
ALEXANDER W. NOJOVITS, JULIUS TEMPLER,
Plaintiffs-Appellants,
¥ 74-2037
MALCOLM WILSON, JOHN GHEZZI, WARREN AN-
DERSON, PERRTY DURYEA, JR., NEW YORK CITY
BOARD OF ELECTIONS, ATTORNEY GENERAL OF
THE UNITED STATES,
Defendants-A ppellees.
A petition for a rehearing having been filed herein by
counsel for the Plaintiffs-Appellants
Upon consideration thereof, it is
Ordered that said petition be and hereby is denied
/s/ A. Daniel Fusaro
A. DANIEL FUSARO
Clerk
4a
APPENDIX D
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals,
in and for the Second Circuit, held at the United States
Court House, in the City of New York, on the twenty-
seventh day of February, one thousand nine hundred and
seventy-five.
UNITED JEWISH ORGANIZATIONS OF WILLIAMS-
BURG, INC., ALBERT GRIEDMAN, HENRIETTE
FRIEDMAN, HELEN GREENWALD, HAROLD KLAGS-
BALD, LOPOLD LEFKOWITZ, DAVID LINDNER,
ALEXANDER W. NOJOVITS, JULIUS TEMPLER,
Plaintiffs-A ppellants,
v. 74-2037
MALCOLM WILSON, JOHN GHEZZI, WARREN AN-
DERSON, PERRTY DURYEA, JR., NEW YORK CITY
BOARD OF ELECTIONS, ATTORNEY GENERAL OF
THE UNITED STATES,
Defendants-Appellees.
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by
counsel for the Plaintiffs-Appellants, and no active judge or
judge who was a member of the panel having requested that
a vote be taken on said suggestion,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
/s/ Wilfred Feinberg
Acting Chiet Judge
WILFRED FEINBERG
Sa
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States ourt of Appeal
for the Second Circuit, held at the United States Court-
house in the City of New York, on the sixth day of January
one thousand nine hundred and seventy-five.
Present: HON. JAMES L. OAKES
Circuit Judge
HON. MARVIN E. FRANKEL
HON. ROBERT J. KELLEHER
District Judges
UNITED JEWISH ORGANIZATIONS OF WILLIAMS-
BURG, INC., ALBERT GRIEDMAN, HENRIETTE
FRIEDMAN, HELEN GREENWALD, HAROLD KLAGS-
BALD, LEOPOLD NOJOBITS, JULIUS TEMPLER,
Plaintiffs - Appellants,
” 74-2037
MALCOLM WILSON, JOHN GHEZZI, WARREN AN-
DERSON, PERRTY DURYEA, JR., NEW YORK CITY
BOARD OF ELECTIONS, ATTORNEY GENERAL OF
THE UNITED STATES,
Defendants-A ppellees.
APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK
This cause came on to be heard on the transcript of
record from the United States District Court for the
Eastern District of New York, and was argued by counsel.
Od
ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the order of said
District Court be and it hereby is affirmed in accordance
with the opinion of this court with costs to be taxed against
the appellant.
A. DANIEL FUSARO, Clerk
By /s/ Vincent A. Carlan
Chief Deputy Clerk
7a
APPENDIX F
UNITED STATES COURT OF APPEALS
For tHE Srcoxp CIRCUIT
<n a>
> >
No. 1251—September Term, 1973.
(Argued August 16, 1974 Decided January 6, 1974.)
S
Docket No, 74-2037
——_— ——_—— -—
Unrtep JewtswH Oroanizations or WiuiiamseuncH, Ixc.,
AveerT F'ruzpMan, Henriette I*riepMaNn, HeLtun Green-
WALD, Harotp Kuacspatp, Leorotp Lerxowitz, Davip
LinpNeER, ALEXANDER W. Nogovits and Junius Teme.er,
Plaintiff s-A ppellants,
v.
Matcoum Wison, Governor of the State of New York;
JoHN Guezzi, Secretary of the State of New York;
Warren Anverson, Temporary President of the New
York Senate; Perry Duryra, Jr., Speaker of the New
York Assembly; New Yorx City Boarp or Exections;
and Wiiu1uaM B. Saxse, Attorney General of the United
States,
Defendants-Appellees,
NA.A.C.P., et al,
Intervenors-Appellees.
Before:
Oakes, Circuit Judge,
FraNykeu and Keuuruer, District Judges.*
. Of the Southern District of New York and the Certral District of
California, respectively, sitting by designation.
——- -— -+§-» > —__ — ___.
Sa
Appeal from orders entered in th United States District
Court for the Kastern District of Now York, Walter Bruch-
hausen, Judge, denying a preliminary injunction and dis-
missing a complaint which alleged that impermissible racial
criteria, violating the fourteenth and fifteenth amendments,
were used in the drawing of certain New York State Senate
and Assembly districts.
Affirmed.
Natuay Lewix, Washington, D. C. (Miller,
Cassidy, Larroca & Lewin; Dennis Rapps,
Brooklyn, New York, of counsel), for Plain-
tiffs-Appcllants.
Grorce D. Zuckerman, Assistant Attorney Gen-
eral (Louis J. Lefkowitz, Attorney General
of the State of New York, New York, New
York, of counsel), for Deferdants-A ppellecrs
Wilson, Ghezsi, Anderson and Duryea.
Gunatp W. Joxes, Attorney, Department of Jus-
tice, Washington, D. C. (David G. Trager,
United States Attorney for the Eastern Dis-
trict of New York, J. Stanley Pottinger,
Assistant Attorney General, Walter Gorman
and S. Michael Scadron, Attorneys, Depart-
ment of Justice, Washington, D. C., of coun-
sel), for Defendant-Appellee Saxbe.
Inwty J.. Herzoa, Assistant Corporation Counsel
for the City of New York, for Defendant-
Appellee The Bourd of Elections of the City
of New York.
9a
Enic Scmnarper, New York, New York (Jack
Greenberg, of counsel), for Intervexors- Ap-
pellees.
Oakes, Circutt Judge:
This appeal brings us close to full circle in respect to
reapportionment—all the way back from Baker v. Carr
almost to Colegrove v. Green. It poses the subtle question
whether a federal court should interfere to invalidate on
fourteenth or fifteenth amendment srounds a state legisla-
tive districting plan for two counties specifically drawn to
ensure nonwhite voters a “viable majority” or a “realistic
opportunity for minorities to elect a candidate of their
choice”? in state senatorial and assembly districts. The
question is made no less complex by virtue of its being
brought by a group of Jewish organizations and individ-
uals, speaking for the [/asidic community in the Williams-
burgh section of Brooklyn, New York, but addressing them-
selves to the effect of the districting upon them qua white
voters as well as qua members of the Hasidic community.
Further added to this recipe for judicial perplexity is the
fact that the districting scheme was enacted after disap-
proval of a prior districting by the Attorney General of thie
United States (hereinafter “the Attorney General”) on the
basis of the State’s abridgement of the right of nonwhites
to vote, such objection operating to forbid utilization of the
prior districting y virtue of the applicability of the Vot-
ing Rights Act of 1965, as amended, 42 U.S.C. $1978 ef
seq., to New York’s Bronx, Kings and New York Counties.
The district court dismissed the complaint, holding that
] These are the words of a Memorandum of Decision, Nes. V654]-47,
at 15, 18, of the United States Department of Justice atinched to a
letter of the Assistant Attorney Gencral of the United States, approving
the 1974 districting here in issuc.
1 Oa
the plaintiffs had suffered no cop sizable injury and that
“racial considerations” had been jcrmissibly employed in
the later districting “to correet a wrong.” We affirm, for
reasons that diifer somewhat.* A history of the contro-
versy must be sect forth to crystallize the issues.
Facts
We commence with July 31, 1970, when the Attorney
General of the United States filed with the Federal Reg-
ister his determination that New York on November 1,
1968, maintained a test or device (a literacy test) as de-
fined in Section 4(c) of the Voting Rights Act as amended,
42 U.S.C. §1978b. 35 Fed. Reg. 12354. Then on March 27,
1971, the United States Bureau of the Census also deter-
mined that Bronx, Kings and New York Counties were
subject to Sections 4 and 5 of the Voting Rights Act, 42
CC eC
2 Because the statutes in question are not of statewide applicability, a
three-judge court is not required. 28 U.S.C. $228}. Board of Regents of
the University of Texas System v. New Left Education Project, 404
U.S. 541, 542-43 (1972). Even though the statutes involve the Stuto
legislature, they relate only to Kings «nd New York Counties (plaintiffs
seck relicf only in Kings County) and are therefore solely of Jocal
impact. Ince v. Rockefeller, 290 VF. Supp. 878, 882 (S.D.N.Y. 1968).
Although the Supreme Court did hear au appeal in Wright v. Rockefciler,
376 U.S. 52 (1964), involving a constitutional ehallenge tu four eon-
gressional districts in one county in New York, which was brought
before and heard by a three-judge district court, the Court did not
discuss the basis of its jurisdiction. Nor did any of the three opinions
below in Wright v. Muckefeller, 211 PF. Supp. 400 (RDLNLY. Woe), ex.
plain why convening the three-judge court was poe ceaty, Leen if the
Court were sub silentio approving the propriefy ef three pats «ourts
hearing essed of purely local impact, wel approval las bees aeecr tod
by the more fTeecut divard of Begeuts v Naw Teft re ati 4 I's feet,
aura, woden os ecited thersia. Se: alas Qomillien ¥ Pikes f, sob ULS.
Joy (Clue),
While originally there wae clvine wider § 9 of the Voth Eight,
Act, 42 USO. PGR, ahidh woudd base ee eit Dae le? “cust
under often Ww. State Beard of Eirctvwe, dvd os 268, os. i od),
that eleias wae Uiswiesed by the dicta te att @- be ad ade bet
lla
U.S.C. §§ 1973b? and 1973,‘ sinee a literacy test was used
in those countics prior to 1970 and Jess than 59 per cent
of the voting age residents voted in the presidential elee-
3 42 U.S.C. $1973b:
(a) To assure that the right of citizens of the United States to
vote is not denice or abridged on aceount of race or color, no
citizen shall be denied the right to vote in any Federal, State, or
local clection beeause of his failure to comply with any test or de-
vice in any State with respeet vo which the determinations have
been male under subsection (b) of this section or in any political
subdivision with respect to which such determinations have been
made as a scparate unit, unless the United States District Court
for the Distriet of Columbia in an action for a declaratory judg-
ment brought by such State or subdivisio:: ugainst the United States
has determined thut no such test or device has been used during
the ten years preceding the filing of the action for the purpose or
with the effect of denying or abridging the right to vote on account
of race or cvlor: Provided, That ro such declaratory judgment shall
issue with respect to any pluintiff for a period of ton years after
the c ‘ry of a final judgment of any court of the United States,
other than the denial of a declaratory judgment under this section,
whether cutered prior to or aficr the enactment of this subchapter,
determining that denials or abrid;-ments of the right to vote on
account of race or color through the use of such tests cr devievs
have occurred anywhere in the territory of euch plai:.tiff.
An action pursuant to this subsection shall be heard and deter-
mined by a court of three judges in aceordance with the provisions
of section 2284 of Title 28 and any sppenl shall lic to the Supreme
Court. The court shall retuin jurixdiction of any nection pursuant
to this subsection for five years after judgment ard shall reopen
the action upon motior: of the Attorney Gencral alleging that a
test or device has been used for the purpose or with the cffeet of
denying or abridging the right to vote ca aceount of race or color.
If the Attorucy General determines that he has no reason to
believe that any such test or device has been used during the ten
years preceding the filing of the action for the purpose or with the
effect of denying or abridging the right to vote on account of race
or color, he shall consent to the entry of such judgment.
(b) The provisions of subsection (a) of this section shell apply
in any State or in uny political subdivision of a state which (1)
the Attorney General detcrmines maintained on November i, 1964,
any test or device, and with respect to which (2) the Director of
the Census deterinines that Jess than 50 per certum of the persors
of voting age residing therein were registered on November J, 1904,
or thet lees than 50 per contum of such persons veted in ihe pres-
(footnote 4s appears on following page)
BEST COPY AVAILABLE :
EEN
"D.
2a
tion of 1968. 36 Fed. Reg. 5809 (1971). The State of
New York filed a complaint on December 5, 1971, in the
United States Distriet Court for the District of Columbia
EE
3 (continued) .
identia! cleetion of November 1964. On and after August 6, 1970,
in uddition tu any State or political subdivision of a State deter-
mined to be subject to subsection (a) of this section pursuant to
the previous sentenec, the provisions of subsection (a) of this see-
tion shall apply in any State or any political subdivision of a
State whieh (i) the Attorney General determines maintained on
November 1, 1968, suy test or device, and with respect to which
(ii) the Director of the Census dctermines that less than 50 per
ecntum of the persons of voting age residing thercin were registered
on November 1, 1968, or that less than 50 per centum of such per-
sons voted in the presidential election of November 1968.
A determination or certification of the Attorney General or of the
Dircetor of the Census under this section or under section 1973 o1
1973k of this title shall not be reviewable in any court and shall
be effective upen publication in the Fe eral Register.
(c) The phrase “test or deviee” shall mean ary requirement that
@ person as a prerequisite for voting or registration for voting
(1) demonstrate the ability to read, writc, understand, or interpret
any matter, (2) demonstrate any cducational achicvement or his
knowledge of any purticulur suijcet, (0) possess goed moral cher.
acter, or (4) prove his qualifications by the-voucher of registered
voters or members of any other class.
4 42 U.S.C. $1973c:
Whenever a State or political subdicision with respect to which
the prohibitions sct forth in section '9755(a) of this tithe Lased
upon detcrininations made under the first sertenec of section 1973)
(bb) of this titie are in effcet «hall enact or sec). to sdmiroster :
voting qualifieution or prerequisite to voting, or standard, practice,
or procedure with respect to voting different from that in foree
or effect on November ), 1964, or whenever . State or politico!
subdivision with respect to which the prohibitions set forth in
section J973b(a) of this title based unon determinations made
nuder the sceond sentence of section if75b(b) ef this tile are in
efeet shall enact or seck to administer any veting qualifiertion o:
pe
prerequisite to votinz. ur stardard, practice, or procedure with
reepet to voting diXere:t from that in force or effect on November
1, 1968, such State or subdivision » stitute an vetion in the
United States District Court for the Distriet of Columbia for -
decizratory judgment that such qunlifeation, prerequisite, standard,
practices, or procedure devs not have the purpose and wil not have
13a
for a declaratory judgment exempting the three affeeted
)4(a) of the Act, 42 U.S.C. §1978)/x).
This Judgment was granted with Justice Department con-
sent on April 13, 1972. New York Stale v. Uniled States,
Civil No. 2419-71 (D.D.C.) (unreported). The NAACP
unsuccessfully appealed to the United States Supreme
Court the denial of its leave to intervene in the District
of Columbia case. NAACP vy. New York, 413 U.S. 345
(1973). But after District Judge Siewart’s decision grant-
ing a preliminary injunction in Torres v. Sachs, 73 Civ.
3921 (S.D.N.Y. Sept. 26, 1973) (failure to provide Spanish
translation of ballot contravened Voting Rights Act), the
Justice Department successfully reopened the declaratory
counties undcr
judgment action and obtained two orders from the Dis-
trict of Columbia District Court, one on January 10, 1974,
directing the State on behalf of the three counties to
comply with the filing requirements of 45 of the Act, 42
U.S.C. § 1973¢, and the second on April 30, 1974, denying
the State's motion for summary judgment. Those orders
were sununarily affirmed the other day by the United
States Supreme Court. New York v. Umted States, 43
U.S.L.W. 3238 (Oct 22, 1974).
the effect of denying or abridging te right ‘9 vote on account of
race or color, and unless and until the court enters such judgment
no person shall be denied the right to vote for failure to comply
with such qualifiertion, prerequisite, standard, practice, or preee-
dure: Previded, That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such procecding if
the qualification, prerequisite, standard, practice, or procedure has
been submitted by the chief legal officer or other appropriate oficial
of such Sinte or subdivision to the Attorney General anl the
Attorney General has not interposed an objection within sixty days
after such sabmission, execpt that neither the Atterney General's
failure to oLjcet nor a deelaratory jude uent entered under this
section aboil bar « subsequent action to enjoin enforer nent of such
qualification, prerequisite, standard, practice, or procedure. An)
action under this section shall be heard and determined by a eourt
of three judges in sccordonee with the provisions of section 22%
of Title 28 and anv appeal shall lie to the Supreme Court.
14a
We then return to 1972 when, in January, the State of
New York altered the Senate and Assembly lines in Kings
County in view of population changes evident in the 1970
census. Laws of New York (1972) Ch. 11. Under that
reapportionment, the Jlasidic community was included
within the 57th State Assembly District and the 17th
State Senate District. As a result of the January 10,
1974, decision of the District of Columbia District Court,
however, New York was required to obtain and on Janu-
ary 31, 1974, did seck approval of the Attorney General
under Section 5 of the Voting Rights Act as to the 1972
redistricting in Bronx, Kings and New York Counties.
This is because a legislative reapportionment is a change
of “standard, practice, or proecdure with respect to vot-
ing” within §5 of the Act, 42 U.S.C. $1973c. Georgia v.
United States, 411 U.S. 526 (1972). On April 1, 1974, the
Assistant Attorney General in charge of the Civil Rights
Division, J. Stanley Pottinger, advised the New York At-
torney Gencral’s office that while the majority of the 1972
redistricting was unobjectionable “we “‘eannot conclude
.. . that those portions [relating to certain districts in
Kings and New York Counties} of these redistricting
plans will not have the effect of abridging the right to
vote on account of race or color” hy virtue of overly con-
ecentrating minerity populations in certain senate and ag-
sembly districts while “diffusing” the remaining minority
population adjoining those districts into a number of
other districts. Thus, a is because New York had failed
to comply with the Vatng Rights Act tu the first instance
(by way of having a “device” with fewer than 50 per cent
voting) /hat i fell afoul of lhat Acl aud was ina position
(for which it will vemain for ten yveurs under S4(a), 42
U.S.C, ©1975h0a)) where tts districting ¢. subiect to dis-
approval of the Attoruey General if, Por exmiuple, its pro-
poser] lines are drawn se as to deny or abridye {he rieht{s
t
~
15a
of minority citizens to vote. Even though the State de-
fendants here disavow the determination of the Attorney
Gencral of Apri] 1.° that determination was not appealed
by the State of ow York, its sole appellate remedy being
by way of action in a three-judge District Court for the
District of Columbia under §5 of the Act, 42 U.S.C.
§1973c. Thus we can say unequivocally that the State of
New York was in a position where it had to obtain De-
partment of Justice approval of vew district lines before
it could hold a proper election under the Voting Rights
Act. |
The State proceeded to draw new lines and to obtain
such approval and it is those lines which are under attack
here. The New York Joint Legislative Committee on Re-
apportionment met, under the gun so tu speak,*® to draw
lines and prepare a series of laws which were enacted in
special session on May 29 and 30, 1974. Laws of New
York (1974) Chs. 588, 589, 590, 591 and 599. These lines
were drawn, Richard S. Scolaro, the executive director
of the Joint Committce on Reapportionment testified be-
5 That determination was that
However, on the basis of al) the available demographic facts and
comments reevived on thes: submissions as well as the state’s legal
burden cf proving that the submitted plans have neither the pur-
pose nor the effect of abridging the right to vote beeause of race
or color, we have concluded that the proscribed effect may exist ir:
parts of the plans in Kings and New York Counties.
(Ex. VI, attached to complaint.)
6 The “gun” did not just consist of the Attorney General's directive
effectively outlawing portions of the 1972 reapportionment, thereb)
throwing orderly primary and general elections of 1974 into disarray
There was also 2 pending three-judge district court action brought br
the NAACP to compel the Stute to enact new district lines in com-
plianee with the Department of Justice's order. Vier v. New York
City Bourd of Elections, 72 Civ. 1460 (S.DNLY
l6a
low, to comply with Justice Department criteria,’ inform-
ally discussed over the telephone and in person, that
there be three senate and two assembly districts with
“substantial nonwhite majeritics.” Lecause the assembly
district in which the entire //vsidie community was lo-
eated under tke 1972 apportionment had a nonwhite pop-
ulation of 61.5 per cent and the Justice Department
indicated this was insufficient, Mr. Scolaro “got the feel-
ing,” although the number was not specifically referred
to, that a 65 per cent nonwhite majority would be ap-
proved. Under the 1974 reapportionment plan devised and
approved the Hasidic community was divided almost in
half, placed in Assembly Districts 56 and 57 and Senate
Districts 23 and 25. Assembly District 56 as redrawn
contains 88.1 per cent nonwhite population, Assembly Dis-
trict 57 contains 65.0 per cent nonwhite population, Senate
District 23 contains 71.1 per cent nonwhite population,
Senate District 25 contains 34.7 per cent nonwhite popu-
lation. Interim Report of the Joint Committee on Re-
apportionment, Albany, New York, May 27, 1974, at A29-
A30.' This litigation ensued on June 11, 1974, and a TRO
was denied below.
7 Section 1 of Laws of New York (1974) Ch. 588 reads 1s follows:
Section 1. This act shall be kuown as the “ienpportionment
Complianee Act cf nineteen hundred seventy-four”, and its purposes
are to eficetuate compliuuce with the determination of the United
States Department of Justice dated April “rst, ninetcen hundred
seveuty-four, and to comply with sections four and five of the
Voting Rights Act of nincteen hundred sixty-five insofar as ap-
plicable.
(Footnote omitted.)
§ According to the Intcrim Report of the Joint Committee on Re-
apportionment, Albany, New York, May 27, 1974, the net result of the
1974 reapportionment wes to produce out of the 22 assembly districts
involved, five distriets Laving 2 nonwh te population of over 75 per cent
and two additional districts of over C2 per cent. Id. at 8. Previously
there had been six over 69 per cent nonwhite and one over 59 per ecnt
nonwhite, of which five were represented by nonwhites. Jd. at 7.
17a
On July 1, 1974, the Attorney General approved the
1974 districting here under attack in a 22-page letter
covering the scope of his review; the pablie awareness
and comment, in the absence of public hearings, of the
reapportionment issne; the intent and purpose of the Vot-
ing Rights Act (said, along with the fifteenth amendment,
“to have been primarily to eliminate discrimination against
Negroes” but also to protect “Puerto Ricans in New York,”
pp. 9-10); and consideration of the respective computa-
tions of voters by race in certain of the redrawn dis-
tricts. That consideration, it may be pointed out, involved
analysis that of Kings County as a whole 64.9 per cent
of the population was white, 24.7 per eent black and 10.4
per cent Puerto Rican, and that the issues raised by the
plaintiff-appellants here “are not ones which the Attorney
General has authority to determine under the provisions
of Section 5 of the Voting Rights Act” (p. 19).
The court below denied plaintiffs’ motions for a pre-
liminary injunction and for summary judgment and dis-
missed the complaint below on July 25, 1974. Appeal was
filed and this court heard a motion to expelite the appeal
on the first motion day thereafter, August 13, 1974, granted
the motion, hexrd the appea! on August 16, 1974, with
extensive and skillful briefs, and a week later, per curiam,
aflirmed the district court’: denial of a preliminary in-
junction.®
9 Aiirmanee ensucd beeause appellants had presented to the district
court very littie probability of snceess on the merits and the clectora’
process was well alorg. Even though the co:nplaint was filed on June
11, 1974, the first day for signing designating petitions for the primars
was June 17 ard tic Inst duy was July 15. N.Y. Election Tew § 149-4
(MeKianey Supp. 1974). Ry the time this court heard the ense, desy\*
its extraordinary expedition, there were only 25 days ts the primers
Laws of New York (1974) Ch. 9.
18a
CoNTENTIONS or TNE Panties
Plaintiffs’ complaint sought in addition to a general
prayer (1) injunctive relief against the administration and
implementation of the 1974 redistricting laws by the de-
fendant Governor and other state officials and New York
City Board of Elections’® (the “state appellees”); (2) a
judgement against the Attorney General declaring that the
standard under which he rejected the 1972 laws was un-
constitutional; (3) declaratory and injunctive relief against
the 1974 laws; and (4) injunctive relicf against implemen-
tation of any redistricting other than that of 1972 or alter-
natively that established by the Judicial Commission ap-
pointed by the New York Court of Appeals." Plaintiffs as
appellants here essentially argue that beeause the 1974
redistricting was done under a formula drawn on a racial
basis, they have been divided between districts so that their
voting power is minimized and diluted, an’ that inherently
suspect racial criteria have been used to create invidious
restrictions against them hoth as iiembers of the TTasidic
community and as white voters. Particular attack is di-
rected toward what appellants characterize as the Depart-
ment of Justice’s “approach” that “the best way to achieve
equality for minorities ... is to elect more biack, Puerto
10 The complaint referred to dilution of the plaintiffs’ right to vote
for the United States Congress but that was dropped in the early stages
of the appeal. The fact that the Hasidic community is not divided in
the congressional district probably explains this. We note that the
NAACP urges that this indicates that the real complaint of appellants
is qua JTasidim, not qua white voter.
ll In WMCA, Inc. v. Lomenso, 377 U.S. 633 (1964), the Court held
that New York’s apportionment scheme violsted tie fourteenth amend-
ment owing to the population disparities betwoew districts. In Ju re
Orans, 15 N.Y.2d 339, 206 N.U.2d $541, 2958 N.Y.S.2d 825 (1965), the
New York Court of Appeals construed the New York Constitution and
established a Judicin] Commission to Craw up an apportionmert plen
which was approved in In re Orans, 17 N.Y.2d 197, 216 N.F.9d 211,
269 N.Y.S.2d 97 (1966).
19a
Rican, Indian or Chieano executives and legislators” (.Ap-
pellants’ bricf at 22), and that the only way to reach this
goal is to maximize, but not waste, minority populations
in cach clectoral district so that a comfortal:le majority
will offset the lower percentage of nonwhites actually
voting. The three principal flaws in the Department’s “ap-
proach” are said to be (1) the assumption that race is the
principal determination of choice by voters; (2) the notion
that a high pereentege of blacks in a district constitutes
“undue concentration” and a lower percentage amowits to
“substantial diffusion,” because by virtue of the nature of
a regional clection-district system, districts will vary de-
pending on residential patterns; and (3) the assumption
that only black or ininority-race legislators ean represent
black or minority-race interests.
The State appellees argue that there is no constitutional
prohibition against cutting across city, county or “com-
munity” lines and, as Judge Pruchhansen held, that util-
ization of racial considerations is not unconstitutional when
it js overcoming, as here, a racially discriminatory effect,
the unlawful 1972 reapportionment." The Attorney Gen-
eral argues that the court below is without jurisdiction to
review his determination under Section 5 of the Voting
Rights Act; that the appellants have no standing to seck
that review; and that the constitution and Voting Richts
Act do not guarantce individuals who represent a religious
or ethnic community districts which maintain community
unity. Finally. the NAACP argnes, first, that appellants
lack standing under the Voting Ri¢chts Act and because
12 By not diseussing these supposed “flaws” we do not imply that we
ugree with appellants’ eheracterization of the Justice Department's
“approach.”
13 Tor reasons that will he seen, we do not quite revch this question,
disenesed infra at C, but it is true, of eaurse, that the 1972 districting
was never netudlly effectuate”.
BEST COPY AVAILABLE
20a
there is no connection between the alleged injury to appel-
lants and the alleged defects in the 1974 lines, and, second,
that the 1974 reapportionment laws are constitutional,
OPINION
A. Section 5 of the Voting Rights Act Is Not a Bar Ex-
cept as to Relief Against the Attorney General.
We deal first with the question whether, as the Attorney
General and NAACL contend, Section 5 of the Voting
Rights Act, 42 U.S.C. § 1973¢, bars this suit. We hold that
it does not.
Section 5 specifically states that “neither the Attorney
Gencral’s failure to object [to, ¢.9.. a renpportionment
plan] nor a declaratory judgment fof the District Court for
the District of Columbia] entered under this seetion shal!
bar a subsequent action to enjoin enforcement of” statutes
such as are here under attack. Note 4 sxura. Even though
a state is in compliance with the Act (cither by Attorney
General approval or district court declaratory judgment),
“private parties may enjoin the enforeement of the new
enactment only in traditional snits attacking its constitu-
tionality; there is no further remeiv provided by §5.”
Allen v. State Board of Elections, 393 U.S. 544, 549-50
(1969). This is a “traditional suit” even if it raises novel
contentions. Jurisdiction lies under 28 U.S.C. §4 1331, 1343
and 1357 to vindicate claims under the fourteenth and fif-
teenth amendments. The Voting Rights Act in no way
appears to outlaw a citizen’s snit {te enjoin a districting
statute, such as was involved in, ¢.9.. Weight v. Rockefelle;,
376 U.S. 52 (1964), Baker v. Carr, 369 U.S. 186 (1962),
Gomillion v. Lighifoot, 2364 U.S. 239 (1960), whether or not
the state of which le is a citiven is under the hopefully
+s
benign aegis of the Voting Rights Act."
14 The Inst sentence of &5 aba the Act, note 4 enuprea doc : reg uire the
“lajny action under this section” shill be determined by a three-j ju hea
2la
The court below does not, however, liave jurisdiction to
“review” the Attorney General’s determination of April 1,
1974, disapproving the 1972 Act, that jurisdiction being
vested exclusively in the District Court for the District of
Columbia, in a suit apparently only at the instance of the
State or a political subdivision,’*® Allen y. Slate Board of
Elections, 393 U.S. at 555, 561. In such a suit the appellants
might have had the option of intervening by timely motion
at the discretion of the district court. See NAACT v. New
York, 413 U.S. at 364-69. Since no such suit was filed. to
the extent that the appellants seek such review, to which
their second specific prayer for relief (as well as some of
the language o! ° weir otherwise most ingenious brief) was
addressed, the court below had no power to give it. Since
that is the only relief sought against the Attorney General,
dismissal of tie complaint against him was warranted."*
court. That reference includes “subsequent actions to enjoin enforee-
ment” brought by an individual as well 2s an section by “a State or
political subdivision” in the United States District Court for the District
of Columbia. Allen v. State Buard of Elections, 293 U.S. at 561-62.
Thus insofar as this suit wags originally brought ied $5 of the Voting
Rights Act, it was required te be heard by a three-judge court; the
NAACP suit, note 6 supra, was just such a suit. Dut this suit, as now
maintained, is not a suit under the Voting Rights Act but a suit solely
under the fourteenth and fifteenth amendments. As such it is governed
by the general three-judge court stotute, inapplieabic here, note 2 supra,
not $5. We do not interpret the last sentence of Part I of the Supreme
Court's opinion in NAACP v. New York, 413 U.S. 345, 552 (1973),
to the contrary.
15 Indeed, a law suit was instituted dircetly in the District of Columbia
District Court by some individes] assemblymen fiom Kings County
when New York's Attorney Geners? decided ret to sue or behalf ef
the State te overturn the April J, 1°74, order. This suit was summarily
dismissed for leck of stonding. Gristih v. United Stetes, Civil No.
74-048 (D.C. Vaw 3, 1974). This clenriy seems proper under .tllen
v. State Board of ERiections, 393 U.S. at S61.
16 Apnellants do not urge that « Votirg Rights Act determination of
the Attorney Geroral is reviewable wader the Administrative Proe
Act, probably beenuse they coneede it to be “eommiited to ageney dis-
‘4 . . . »*
The rest of the case must be treated as involving only relicf
sought against the State appellees.
B. Standing to Sue State Officials.
test
A more difficult question is whether appellants have
standing either as representing the J/asidic community or
as white voters to seek relief against the State appellees.
We hold that they do not as Hasidimn but do as white voters.
As representatives of the Hasidic community, appellants
present a very appealing ease. They properly point with
pride to their closely knit conmamity as consisting of a
“substantially self-sustaining and totally law-abiding”
group, which came to the Williamsburgh area as survi-
vors of the Nazi llolocausi, lives serupulously observant
of distinctive religions practices, and---despite their initial
skepticism of democracy—participates actively in civie
affairs ineluding the clectoral process. As a result of the
1974 laws that community, whieh had been in one state
senate and one state assembly district, has heen divided
in two and its strength as a voting blée diluted accord-
ingly. But similar claims for community recognition have
been rejected in the past. As was said by a three-judge
court in respect to divisions of certain Brooklyn com-
munities in Wells v. Rockefelicr, 281 F. Supp. 991, §25
(S.D.N.Y. 1968), rev'd on other grounds, 394 U.S. 542
(1969) :
The Legislature cannot be expected to satisfy, by its
redistricting action, the personal political ambitions
or the district preferenees of all our citizens. For
everyone on the wrong side of the line, there miy
erction by law.” 5 U.S.C. ¢761(2)(2). Anslogons determinstions unde
s -~ . . . . ;
$407 of the Civil Rights Act of 1964, 42 U.S.C. $ 2000c¢-6, have been
held not subject to judicial review. United States v. Greentood Muni-
cipal Separate School Districts, 406 F 2a 1608S (Sth Cir 1969)
23a
well be his counterpart on the right side... .[E)ven
Brooklyn’s large population will not support twenty
community congressmen. Of necessity, there must be
lines which divide.
See also Ince v. Rockefeller, 290 F. Supp. 878 (S.D.N.Y.
1968) (claim of black residents of East Elmhurst, Queens
County, that their community was divided between two
assembly districts with racial motivation dismissed by
single judye). There can be no claim to being left to-
gether in one district at least absent a showing of dis-
crimination on grounds of race or color against the resi-
dents of the “community” operating so as to deprive them
of the right to vote, ¢.g., in municipal elections, Gowillion
v. Lightfoot, supra (state gerrymandering removed 399
or 396 out of 400 Negro voters from City of Tuskeegce
boundaries) or, perhaps, operating so as purposefully to
diminish the effectiveness of their vote through variou:
districting plans. Sve Douglas, J., dissenting in 1’right
v. Rockefeller, 376 U.S. at G1; Klakr v. Williams, 339 F.
Supp. 922, 927 (D. Ariz. 1972) (three-judge court). There
are from 20 to 60 clearly-defined communities in Kings
County, but only 8.6 senate districts and 21.4 assembly
districts. To preserve conimunity political integrity and
comply with Reynolds v. Sims, 377 U.S. 535 (1964), would
therefore be inpossible.*’
Here, more to the point, the appellants do not claim
that the purpose of the 1974 districting was to dilute or
17 Under N.Y. Const., Art. III §¢4, 5 (MeKinney 1969), “blecks which,
from their location, may be included in cither of two districts, shall
be so placed as to make said districts most nearly equal in number of
inhabitants.” Applying this “block on the border” requirement, seven
new assem'ly districts in Kings County have a population of exactly
120,768 snd the new senate districts vary by only one person. Sec
Interim Teport of the Joint Legisiative Committee on Reapportionment
(Lercinafter cited as Intcrim Report), App. KW and M.
24a
abridge the Hasidic vote. Rather their complaint is that
the purpose was to ensure nonwhite majority representa-
ae . 47 ‘a .° ‘ . . (Ab . ,
Mion I tie Gistmets in question. Their argument that
it is true that the appellants may be quarrelling with the
-\ttorney General’s apparent viewpoint that the Voting
Rights Act docs not cimpower him to consider ethnic as
opposed to colov discriminations in a submission under
the Act, a view which we do not necessarily share, it
is a far ery froin this to say that a state must in a re-
apportionment draw lines so as to preserve ethnie com-
munity unity. Any holding otherwise would, it seems
to us, Make reapportionment an impossible task for any
legislature. Whether our “eeision on this point is east on
the merits or as a niatter of standing is probably imma-
terial. See also Wood vy. Broom, 287 U.S. J (1952).
We turn then to whether appellants have standing to
assert their claims as white voters that racial considera-
tions cannot be used in drawing district lines in any
manner, a claim which is grounded both upon the equal
protection clause, i.¢., that white voters are denied equal
protection, aml the fificenth amendment, i.e., that white
voters’ rights are abridged on account of race or color.
There is no reason, as we see it, that a white voter may
not have standing, just as a nonwhite voter, to allege a
Genial of equal protection as well as an abvidgement of
his right to vote on account of race or color, sce 1 B.
Schwartz, Statutory Ilistory of the United States: Civil
Rights (1970) 181-522, 367-428. regardless of the fact that
the fourteenth ant fifteeuti: amendments were adopted
for the purpose of ensuring equal protection to the black
person. While we generally tcnd to think of white voters
as being in tie majoriiv besause in the country as a
whole and in most states they are, it is plain enough that
Re
25a
in a given state or political subdivision they may not be;
to the extent that the fourteenth and fifteenth amend-
ments can be construed as extending the rights of mior-
ity groups, in 2 viven sitnation that group may of course
be white. Thus, previous cases affording standing to black
voters making claims of denial of equal protection or
denial or abridgement of vote are equally applicable here.
Cf. Gomillion vy. Ligh:/foot, supra (deciding claim on mer-
its); Wright v. Roclefcller, supra (same). See also Traffi-
cante ¥. Metropolitan Life Iusurance Co., 409 U.S. 205
(1972).
The intervenc-appellee NAACP argues that appellants
lack standing beeause there is no connection between their
alleged injury, defined by the intervenor ws community
dispersal, and the alleeed constitutional defect in the 1974
districtiny, that is, consideration of a 65 per eent non-
white racial criteria.’ The areument is that it would
have been, and there was some evidence that it was, pos-
sible to put the entire Jlasidic community into one assem-
bly district (the 56th) and one senate district (the 25th)
and still comply with the snpposed 65 per cent require-
ment. But we read appellants’ claim to be broader than
simply a claim for community unity. We read them as
urging that as white voters their vote has been abridged
on account of race or coler;? it is the community division
18 To be sure, some of the witnesses for appellants (Rabbis Friedman
and Stauber, Mr. Lefkowitz) testified that keeping the Masidim together
in one district, regardicss of the district’s having a nonwhite majority,
was their only concern. Rut we do not limit appellants’ skillful counsel
by the expressed views of some of his witnesses, nor do we read their
testimony quite as unam!iguous'y us docs the NAACP.
19 We read their claim thus, even though they dropped their initial
complaint as tv the congressional distriet (in whick they were loft
intact as a community). Thies strevmlining of the ease moy hare been
out of symprthy for tie feder:] judges who had to wre-tle with thetr
contentions— like avoiding “confusion to the jury.” But whatever appel-
0 TO EEE
26a
which may have induced the litigation but it is the allega-
tion of race or rather color consciousness in the district-
ing that is appellants’ plaint. We believe there is here a
logical nexus beiween the status as<eried by appellants
qua white voters and this claim. Sve #lasi y. Cohen, 392
1.S. 83, 102 (1968). Thus we hold they have standing to
assert this claim.
C. The Merits of the Controversy.
The appellants’ clain is one that has not only intellectual
appeal on the surface but also seme support in the lan-
suage—we do not say rhetoric—-of cases which have been
brought by nonwhite minority groups. F.4., Douglas, J.,
dissenting and concurring in Wright vy. Rockefeller, 876
USS. at 59, 66-67. See also Judee Peinhere’s concurrence in
the three-judge district court in Weriet! vy, Rockefeller, 211
I’, Supp. 460, 468 (S.D.N-Y. 1962), formed by the Supreme
Court, supra. The loss of a vote new] not be shown, it is
argued; the constitutional vice is constituting lines on a
racial (or color) lasis. We are referred on the one hand
by the appellants to the long line of equal protection cases
to the effect that race is always and everywhere a “eonsti-
tutionally suspect classification,” ¢.-., VeLaughtin v. Flor-
ida, 379 U.S. 184, 192 (1964), end on the other hand by ap-
pellees and the intervenor to the alone ecnutlly long line of
cases permitting racial considcretions to be vsed aMrma-
tively to offset past discrimination or as the district court
here put it, 377 F. Supp. 1164, 1166, to “correct a wroug”’—
in cdneation, Swann v. Charlot'e-Tecklerhurq Board of
Education, 492 U.S. 1 (1971): in honsine, O'era v. New York
City Tousing Authority, 484 F.2d 1122. 1199.23 (2d Cir.
‘ ~—)
. : ; . ,
Innts’ motives are, it rou'd be Inappronriate—and too en<sv—for ue to
drop 2 ren} issue in the ense on the basis that we believed cppeliants’
interest was qua Hasidim, not qua whites.
27a
1973); in grand jury selection, Prools yv. Beto, 666 ¥'.2d 1
(Sth Cir. 1966), cert. denied, 586 U.S. S75 (1967); and in
employment, cissociated Genercl Coutractors vy. Altshuler,
490 F.2d 9, 16-19 (1st Cir. i973), cert. denied, 42 U.S.L.W.
3594 (1974). However tempting it night be in the abstract
to determine whether gerrymandering with race or color
in mind inay be aflirmatively used to offset previous race
or color discrimination, that question, analogous perhaps
to the question that was argued if not decided in DeFunis
v. Odeqaard, 42 USAW. 4578 (U.S. Apr. 235, 1974), we
do not think is reached here
In the first place, there is no showing here that the effect
of the New York legislature’s drawing the 1974 district
lines as it did was invidiously to cancel cut or minimize the
voting strength of white voters in Kings County. Even con-
sidering that the assembly and senate districts here in ques-
tion would now necessarily elect nonwhite assemblymen and
senators, 2n assumption we hy no micans may make,®?® there
would be no disproportionately nonwhite representation in
cither house.*! Even if there were, that would apparently
20 Substantial nonwhite majoritics did not result in cleetion of non-
whitcs in all eases in, ¢.g., the 1972 election. Thankfully, we seem
more and more coming to the day when the American voters vote person
or party or issue and not color or race or sex. Until that idyllic day
all voters do this, however, 2 Voting Rights Act or fiftcenth amendment
will be necessary.
21 The population of Kings County is 64.9 per cent white, 24.7 per cent
black and 10.4 per cent Puerto Ricon. Meworandun of Decision,
United States Dep't of Justier, Nos. V6541-47, July 1, 1974, at 15.
For purposes of the Voting Rights Act tie Puerto Riesn population is
considered nonwhite. Jd. at 10-31. Thus Kings County is 35.1 per cert
nenwhite. Under the 1972 dietricting, one out of the ten senate districts
contained nn substantial nonwhite majority population. Under the
amended 1974 plan three of the districts, or 30 per eent, contain cub
stantial nonwhite population majoritios—-proportionately slightly less
minority eonecntration districts thon the pereontage of nonwhite voters
in the county. Interim Keport of the Joint Committee on Reapperticr
ment, supra note 8, at 5. Of the 22 xssembly districts in Wings County
BEST COPY AVAILABLE
28a
be insufficient to sustain appellant~" claim umler the stiffer
iest of White v. Regester, 412 US. 755 (1972) (Texas multi-
member districts dissolved), and Whilecih v. Chavis, 493
U.S. 124, 149-50 (1971): the burdou, While says, 412 U S
at 706, is os
to produee evidence to support findings that the po-
litieal processes leading to nomination and election
were not equaily open to participation by the group
in question—-that its members had less ‘opportunity
than did other residents in the distri.t to participate
in the political processes and to cleet icindatorn of
their choice,
Here there is no such evidence: there is no history of offi-
cial racial discrimination against whites: there . no in-
dication that the white connmmity has ever in faet been
the victim of political er other racial diser‘mination in the
districts in question, in Kines County, or in the state of
New York as a whole.” |
. Thus, appellants’ argument is reduced to the proposition
that districting on racial lines is per se unconstitutional
six had over G0 per cent nonwhite population ard one over 50 pe
nonwhite population under the 1972 plan. The 14 pion perk oae ‘os
districts having over 75 per cert nonwhite population ond ue é an
60 per eent. Thus seven or 31.4 per eent of the districts conte’:
majority of :onwhite population, sgain less than the percents age” the
nonwhite populztion in the county. Jd. at 7-8. pitas io
22 4 yh v. Rockefeller, 376 U.S. at 58, the Court, holding thet
proof of discrimination by race was essential te plaintiffs’ challenge
of a New York epportionment statute, sail:
We accept the Distriet Court's finding thot arpe'lants hare rot
shown that the ehallenged part of the New Vork Act was the
product of a state contriiance to segre ; peep
rian egreqate on the basis
engetycleg gy i¢ basis of race or
(E . u a c ? Cc rr 0 4 ontrive nce
, - ‘ .
a . to
29a
In deciding this question it is unnecessary bo devermine
whether a legislature, starting afresh, can draw lines on &
racial or color basis so as to give proportional represente-
tion or equivalent voting strength to whites and nonwuites,
This is true even though some authority can be found sup-
porting both sides of such a proposition.”
Happily, perhaps, our task is a narrower one {lian de-
termining the applicability of the Gaffucy principle, see
23 Reynolds v. Sims, 277 U.S. 523, 579-31 (1964), recownizes that there
are considerations such as political boundaries whieh exn he taken into
account. Sec Note, Reapportionmeat, 79 Ifary. 1. Rev. 1226, 1244-46
(1966). The issuc would be whether race ean be eynaidercd noninvidi-
ously. See also Mahan vy. Howell, 410 U.S. 335, 325 (1973) (Virginia
legislature can deviate slightly from equal population to m tutsain
integrity of pulitie.’ s Divisions so bong ae the deviation is “free from
any taint of arbitrariness or dis-rimination”). Gaffacy ¥. Cummings,
412 U.S. 735, 749 (1973), contains seme pertinent langucge. “There
are other relevant factors [than amathematienl equality among Gistriet
populations] to be taken into uccount and other important interests
that States may legitimately be mindful of.” In Gaffney the Court held
that a
couseiousiy and overtly adopted and followed ... policy of “politieal
fairness.” which aimed at ruugh scheme ef propurtionn! repre-
sentaticn of the two major pelitical parties
was constitutional. Jd. at 738. Wiile the Court said that districting
is invalid if it “fences owt a racial group” (Gomiilion Vv. Lightfoot,
supra note 2) and maultimember divtricting: is invalid if it “eaaerls out
the voting strength of racial or political elements” (Fortson V. Dorsey,
379 U.S. 433 (1965), id. at 75}, it also said that “[d]istriet lives are
rarely neutral phenatic «” and that « “politiently mindless approach
may produce, whether js tended or net, the most gressiy gerrymanfered
id. at 753. The Court then aid at the time a “xeutral” phan
is knows, its political ¢ ‘ect is known and when the plin is paced its
effect is therefore “intended.” Jd. The same can edbviousty be stil of
racial considerations. The Gatecy Court held thet as lovg 3* groups,
politieal and racicl, ave not “fenced out’ and their voting strength
“jy vidiously minimized” (Irie v. Regester, 47° U.S. 755 (1974);
Whitcomb v. Chavis, 403 U.S. 124 (1977)), and as long ** population
is cquai, political considerations are valle
results,”
Bat neither we ner the district comets «wea ecustitational warrat.®
to juvalidate a stote por", otherwise within telersi's pepe’ elie
Vesite. beenuse if undlert. ces, vot to mini’ ze or elim t
gS Tt3
polities strength of any group or party, but to reeernive + ate
30a
note 23 supra, in 2 racial districting ease. Here the New
York legisi!atvre was not “starting afresh”; the State had
run vionl of the Votine Rielts Act. Thus it was drawing
d'strict dimes in cou Jorn tiv with standards of the Attorney
General of the Uuited States, acting under that Act in a
vay not subjeet to challenge here for reasons previously
steted. We, therefore, need do no more than rely on Allen
v. Board of Elections, 393 U.S. at 569, where the Court re-
ferred to the companion ease heard under the Allen name,
Fairley v. Patterson, which involved a change from district
to at-large voting for county supervisors. The Court said:
through districting, provide a rongh sort of proportional repre-
sentation in the legislative halls of the State.
Td. at 754 (emphasis added).
Since the Court Jumps “politieal and racial” together in its analysis,
it could be erened that the same holdirg applies where a state district-
ing, fur whatever reason, gives racial minorities, °% here, propertional
strength. Indeed, “colorblind:ces” could in a given situation lead to
unfair results. See Note, Reapportionment on the Sub-State Level of
Government: Equal Represcatation or Equal Vote?, 50 B.U.L. Rev. 231,
252 (1979): ,
Strict numerical equality is one constitutional standard, and a plan
providing for numerical equality would never be constitutionally
abhorrent unless it was proven that the plan was purposely adopted
19 shut out 2 specific minority [citing Fortenn v. Dorsey, 379 U.S.
423 (1965)}.
But «re Whitcomb v. Chavis, 493 U.S. at 149-69, Howard v. Adams
County Board of Svvervisors, 453 F.2d 455 (Sth Cir. 1972); Kilgarlin
v. Murtin, 252 F. Supp. 404 (S.D. Tex. 1966) (three-judge court),
rev’d on other grounds, 386 U.S. 129 (1967): Mann v. Davis, 245 P.
Supp. 241, 245 (E.D. Va.) (three-judze court), aff'd, 382 U.S. 42
(1965); Ferrell ¥. Oklahoma, 359 F. Supp. 73, 83 (W.D. Okla.) (three-
judge court), afd, 406 U.S. 939 (1972). And see Donglas, J., dis-
senting in Wright v. Rockefeller, 376 U.S. at 66-67:
Ret government has ne baciness designing cleetoral districts along
rueial of religious lines, We held in Akins v, Terae, 325 U.S. 398,
403 and in Brown v. Allen, 344 U.S. 443, 471, that courts in select-
ing juries nocd not—inder? should not—give each jury list the
preportions! racial eompes'tion that the community has, If raee is
rat a prover criterion for drawing a jury lst, how ean it be in
designing 2n electoral district?
3la
The right to vote can be affected by a dilution of voting
power as well as by an absolute prehibiiion on easting
a ballot. See Renaolds vy. Sims, ST7 U.S. 553, 555
(1964). Voters who are members of a racial ieinority
might well be in tho majority in one district, but in a
decided minority in the county as a whole. This type
of change could therefore nullify their ability to elect
the candidate of their choice just as would prohibiting
some of them from voting.
This type of situation, underrepresentation of raes hy the
districting of 1972 following upon dilution of nonwhite rep-
resentation through the use of unlawful devices in and prior
to 1968, is what Allen held the Voting Rights Act was de-
signed to cure. To correct an invidious diserimination in
favor of white voters and against nonwhites which had
ovcurred in Kings County, the Attorney General neces-
sarily had to think in racial terms in considering his ap-
proval of the 1974 lines. To the extent that approval was
sought in advance, and the lines drawn by the iegislature
so as to obtain the Attorney General’s favorable nod, it
might be said that the racial result was “intended.” Cf.
Gaffney v. Cummings, 412 U.S. 735, 753 (1978). But this
is what the Voting Rights Act contemplated, and since if
necssarily deals with race or color, corrective action vider
it must do the same.** That the Act was intended to im-
plement the foyrteenth and fifteenth amendments and is
constitutional, there can be no doubt. South Carolina vy.
Katzenbach, 485 U.S. 301 (1966).
We hold, therefore, that so long as a districting, even
though based on racial considerations, is in conformity with
the unchallenged directive of and has the approval of the
24 It is prob: bly redundant to reiterate that the appellants eannct
obtain review of the Attorney General's action here. See A supre,
32a
Attorney General of the United States under the Act, at
least absent a clear showing that che resultant legislative
reapportionment Is unfairly prejudicial to white or non-
white, that districting is not subject to challenge. Whether
this is to say that in the broader sense the controversy is
not “justiciable” (which would bring us full cirele in this
situation to Colyrove v. Green, 328 U.S. 549 (1946),** or
that the appellants’ claim lacks merit, we can leave to some-
one else to determine. Our judement is that the judgment
dismissing the complaint is affirmed. If the appellants have
any solace as white voters it is that the application of the
Voting Rights ct to New York is limited to a ten year
period, as we lave pointed out. Seetion 4(a), 42 U.S.C.
§1973h(a).
Judgement affirmed.
ewes
i
Franken, District Judge (dissenting) :
Agreeing that the action is not barred by the Voting
Rights Act and that plaintiffs have Standing, I would
reverse and hold the laws in question unconstitutional.
As pereeived by the majority, the bland contention emerg-
ing from this “recipe for judicial perpicxity” is whether
“districting on racial lines is per se unconstitutional.” If
that is the question, the dissent now !aunched is largely
pevide the point. With deference, however, I believe the
court has misplaced the perplexities actually presented by
overlooking the critical (and undisputed) facts.
The case is not about whether an awareness of race in
drewing district lines is “per se unconstitutional.” The
ease econecrps the drawing of district lines with a central
and voverniug premise that a set number of districts must
pd That is, that determining where distriet lines should be drawn is a
legislative retier thon a judicial function. The sndiciery’s only role is
gasuving that the determination is not invidious in purpose or effect.
—~—
33a
have a predetermined nonwhite majority of 65% or more
in order to ensure nonwhite control in those districts. The
case is one where no preexisting wrong was shown of such
a character as to justify, or render congrucit, a yeestup-
tively odious concept of a racial “critical mass” as a prin-
ciple for the fashioning of electural districts. Indeed, it is
a case where no official is willing to accept, Iet alone to
claim, responsibility for the requirement of 65% or over
nonwhite. This is the case that compels me tu vote for
reversal.
I,
Critical facts, though discoverable from the court’s opin-
ion, must be highlighted to make the points in this dissent.
When the United States Attorney General reviewed the
State’s 1972 districting laws, he found them acceptable for
the most part. As to “parts of the plans in Kings and New
York Counties,” however, he found that the State hed not
met its “burden of proving that the submitted plans have
neither the purpose nor the effect of abridging the right to
vote because of race or color... .” He “eoneluded that the
proscribed effect may exist” in the unapproved parts of the
plans. With respect to the Kins County Senate and As-
sembly plans, which concern us here, he said:
“.,. Senate district 18 apveurs to have an abnor-
inally high minority concentration while adjoining mi-
nority neighborhoods are sienifienntly diffused into
surrounding districts. In the less populous proposed
assemnbly distriets, the minority population wears te
be concentrated into districts 53, 54, 55 and 56, while
uninority neighborhoods adjcinie: those districts are
diffsed into a number of other districts, As with the
congressional plan we kwew of no cecess'ty for such
configuration and believe other rational alternatives
exist.”
BEST COPY AVAILABLE
34a
Neither the Legislature nor the Exeeutive of New Yor}
agreed with this appraisal of their legislation. Bui the
pressures of tine posed hard chcices. June 17 was the first
day for signing designating petitions fer the primary, N.Y.
Ilection Law §149-a, subd.2. The vetitions were to be filed
with the Board of [elections by July 15. Jd., subd. 4. The
primary was scheduled for Septeinber 10. Laws of 1974,
ch. 9.
In the face of this schedule, it wes determined that the
lines should be redrawn in @ fas!.ion that mmieht obviate
the Attorney General's chjections. The initial work of
meeting the olijections was undertaxen by the Joint Legis-
lative Cominittece on Reapportionment. Working with the
Departinent of Justice, the Conmuttee’s staff acquired the
understanding that they must organize two more Senate and
two more Assembly districts with substantial nonwhite
majorities.
So far as ean be told from the record before us, there was
no semblance of an effort to take the asserted instances of
undue “concentration” and improper “diffusion” and set
them to rights by particular and principled revisions. In-
stead, in an atmosphere of hasty dickering, the Legisla-
tive Committee staff proceeded to redraw the lines wnder a
controlling mandate to see that seven Assembly and three
Senate districts had nonwhite majorities of 65% or greater.
The 65% figure was taken on the explicit premise that any-
thing less (given lower rates of votcr registration and turn-
out) would render uncertain the power of the nonwhite
majority to control election results im those districts. The
654% minimum was pressed in total disregard of whether
it might he a necessary or sritable nicans to correct any
improper “concentration” or “diffusion.”
While it was never said explicitly (a matter of some
consequence for the decision herein), the Committee's
Ae ill
35a
staff director “got tlie feeling” that, to avoid disapproval,
the 1972 Assembly district in which the J/asidie commu-
nity was entirely embraced at the time would require
revision to raise its nonwhite population from 61.546 to
65%. As he described the exchanges with Department of
Justice personnel, the upward revision from 61.5% re-
sulted from conversations and inferences of the following
character:
“I said how much higher do you have to go?
“Is 70 percent all right?
“They didn’t say yes or no, but they indicated it
is more in line with the way we think in order to
effect the possibility of a minority candidate being
elected within that district.
“I suggested 65 percent. It came out at that time
that is a figure used by the NAACP in numerons
briefs and other documents.
“T got the feeling, and I cannot vouch for this as
a matter of having been specifically said, hut I left
that meeting indicating that 65 percent would be prob-
ably an approved figure.”
The upshot of the talks, the director said, was: “T thought
it was logical for me to assume anything under 65 would
not be acceptable.”
Following the “feelings” and assumptions thus derived,
the Joint Committce made the district line changes as-
sailed in this ease; “block by block and census tract by
census tract, [they] colered in iu vations proportions the
Puerto Rican populatien, and the Mack population, all
over the area.” The former district lines were thus re-
vised by adding blocks or sections liere aud there, snb-
tracting and shifting others, al] with an eve single upoy
the racial composition of the bits and pieess being moved,
The criteria that had been followed in ihe 1972 enact
ee ee
36a
ments—the interests, for example, in communities and
natural boundaries—were not direetly altered, but were
subordinated where necessary to the central objective of
racial shifts to achieve seemingly required percentages.
Bills embodying these changes were introduced in a spe-
cial session of tlie New York State Legislature and en-
acted on May 29 and 30, 1974. Laws of 1974, chs. 588,
089, 990, 591, and 599. There does not appear to have
been any revision by the Legislature of the work, or of
the underlyimg premises, of the Joint Committee.
The new laws were submitted for the Attorney Gen-
eral’s approvel on May 31, 1974, and declared unobjee-
tionable by him on Jviy 1, 1974. The phrasing of his
response is interesting and significant. He said he “does
not interpose any objection. . . .” Tle took pains to
spell out at length his diseinimer of responsibility, or
even support, for the 65% idea or any other semblance
of a racial quota or cainimum supposed necessary for
effective control.
Far from secking to justiiy the racially determined
changes of 1974 as essential or proper remedies for any-
thing, the Attorney General assures us that “nothing sup-
ports the proposition that the plan upon which the State
decided was at the insistence of the United States.” ! That
statement in a bricf merely reafGrms what was said at
greater leneth when the Department of Justice announced
its non-ohjection to the 1974 redistricting:
“In assessing these arguments Fagainst the 1974
lines], two basic prineimMes shouvid be kept in mind.
First, it is not the function or authority of the At-
torney General uider Seciion 5 to devise redistr'eting
Pans, or for that matter to dictate to the State of
New York specific actions, stens or lines with resect
1 Brief for Appelice Sexbe, p. 22.
rm te nt ee —_
37a
to ifs own redistricting plan. The only funetion of
the Attorney Generz! under Section 5 is to evaluate 2
voting change, such as that encompassed in the instant
submission, once it lias been adopted by the state and
submitted for the Attorney General’s review, and to
determine the limited question of whether the purpose
or effect of the change in question is to deny or abridge
the right to vote on account of race or color. If no
such abridement or denial exists, the Attorney General
must not object to ihe plan, regardless of the merits
or demerits of the plan in other regards, including
state, lecal, and partisan political ones. If an abride-
ment or denial does exist—as we found in tie first
submission hy New York—the Attorney Gencral mnst
ohject, stating his reasons, but not drawing a counter
plan or cormmanding any particular state response.” *
Not only did the Attorney General pointedly disavow
the “function . . . to devise redistrieting plans”; le made
plain in the same decision his position that concern for
the rights of white voters (exeept perhaps for these with
Spenish surnames) was actually no part of his business
under the Voting Rights Act. The Civil Rights Division,
speaking for him, said:
“In contrast to the foregoing conclusion regarding
Puerto Rieans j‘that seme Spanish-surname? Amor-
icans ore covered by federal statutes which pretect the
tights of non-white cificens'|, there wis nothing re-
vealed by our review of the cireumsieness surreundinz
the adoption of the Pi free th Amendment, the passage
of the Voting Rights Net eedits Smondinents, the lar
eseeo af those provisions, their leeislative history, a7
tie formnla used for bringine states and velitteo] sub.
- , .¢ . ie a eee ee i!
3 Vonget at oof Justice, Civ] Tights Divison, Momorandam of Dert-
38a
divisions under the Act which indicates that Hasidic
sews or persen: cf Trish, Polish or Italian descent
are Within cae scope of the special pretections defined
by the Congress in the Votine Rights Act. Nor has
material supporting that view been brought to our at-
tention by others. We are forced to conclude, there-
fore, that given what we now know of relevant pree-
edent, these groups are not among those whose rights
the Attorney General is commanded and empowered
to protect in his consideration of a submission under
Section 5 of the Voting Rights Act. We make no
comment, ef course, on the relative merits of this con-
eression:lly defined scope of coverage and nothing we
say here should be interpreted as aficeting any other
rights acerning to these partics from other sources.” ?
Thus, the problem presented here is one the Attorney
General did not even consider. Correctly or not, he decmed
it hevond the hounds of his concern to notice whether the
rights of white voters might snffer invasion bv the district-
ine plans lie was asked to review.
II.
The law governing this case beeins with the fundamental
proposition that classification by race or ethnie origin is
“odious” in our soeinty, Tiredvayash: v. United States, 220
U.S. $1, 100 (1943), te be tolerated. if at all, only for rare
and compelling recessities, seo Kurcivatss v. United Staies,
323 U.S, 214 (1944), and perhaps newhere more repulsive
than in relation to the “richt to vote freely .. . [which]
is of the essence of a democratic society,” Reynolds v. Sims,
877 U.S. 553, 555 (1964). The coinnlexities of life have
been thoug’:t to compel occasional devartures, slicht always
and ginwerly, from the rule of eovernmental color-blind-
2 Id. pp. 11-12.
39a
ness. But the idea of quotas, deeply suspect anywhere, is
likely never to find root, while we preserve our fundamental
character as a nation, in the organization of electoral con-
stituencics. The idea of a polity, deliberately organized
as a matter of state policy, into districts whose people are
proportioned according to whether they are white, black,
yellow—and, let us not blink, “IIungarians ..., Poles. . .,
Germans ..., Portuguese ..., Mexienns [or] the numerous
minority groups in New York, and so on through the whele
gamut of racial and religious coneentrations in various
cities”, Tughes v. Sunertor Covr!, 339 U.S. 450, 464 (1950)
—is at war with our bedrock coneepts of individual worth
and integrity. Bui that is essentially the concept followed
in drawing the districts involved in this case.‘
The racial quota or 65% minimum enmiployed for dis-
trictiny in this case was held valid in the district court
“to correct a wrong” and is sustained again here as “cor-
4 Among the dubicties in this case is the insistent coneern for “non-
white” majorities that embrace both blacks and Puerto Rieans. What-
ever inspires te United States Attorney General, a court sitting in
New York may notice the artificiality of the merger. It may he true
that in our rich, and sometimes bitter, diversities, sundry whites, of
various stripes, are frequently at odds with Puerto Riezns. But conilicts
between blacks and Puerto Ricans are familiar. See Gaby, “Newark:
The Promise of Survival,’’ 7he Nation, December 14, 1974, at 619, 621.
The latter have been heard in the context of this very ease to resist
being submerge] by black majoritic: or pluralities to make “nonwhite”
majorities; ther scek instend « Bronx Congressional distriet in which
Puerto Rieans. are a majerity. “Puerto Rienn spokesu:en,” ‘t was noted
by the Department of Justice, complained of one Congressional district
containing 53% blacks, 19.2% Puerto Ricans, and a combined “non-
white majority” of 72.2%. Civil Rights Division, Memorandum of
Devision, July 1, 1974, p. 14. Likewise, they assailed another district
which had 45.1 binck, 18.2°¢ Puerto Piean and a resulting “neuwhit~
majority” of 63.207. “They maintain[ed] that the plain [had] the effect
of splintering off substantial numbers of Puerto Ricans iv.to [the 2
districts] and that a district could be created in which Puerto Rieans
us of the thorns, politic:l as well as censtituticns], into which we
plunge when we consider racial quotas for voting districts.
:
* ee ee eo + tin nema
404 4la
arcadia eda oe. isch penn teen ; the demands of the United States Attorney General. 7 ”
It did this, the same brief stresses (p. 15), thougn it “dows
(1) The attack is upon legislation, but neither the | not believe that the 1972 legislative ... redistricting stat-
levislature nor any responsible official anywhere utes preduced a racially discriminatory effect as charged
purports to have found the racial quota either by the Department of Justice... .”
necessary or even appropriate to correct the sup- As for the Department of Justice, it did, of course, rule
posed wrongs. as an antecedent of the 1974 redistricting that the State hac
(2) Whatever an official could have said, the record not met its “burden of proving that the submitted [1972)
plans have neither the purpose nor the cifect of abridgoiy
the right to vote because of race or color.” * We need not
conjure at this time with the question of how far this
“failure of proof” may he dcemed, in tie words of the Inter-
before us reveals not even a reasonable basis, let
alone a compelling necessity, to justify a scheme
of nonwhite contro) (and white snbordination)
through a predetermined iminimum of 65% per
selected district. venors (N.A.A.C.P. and others), a “decision that the 1972
lines were discriminatory.” * Treating it as such, the erit-
(1) Neither the disiriet court nor this court has “found” ical point remains that the Attorney General cf the United
the 65'7 rule suited as a remedy for the nnsurmounted States utterly disclaims approval, let alone authority, of the
objections of the Attorney General w the 1972 lines. No- 657% mandate.
body else has made such a finding either. But “corrective Thus, the majority errs, I think, when it says the State
xelion,” surely not least when it takes the form of racial Legislature “was drawing district lines in conformity with
criteria for lezislation, must be related to the evil or dis- standards of the Attorney General of the United States.
order to be cure: “the means chosen to implement the ecom- ee
pelling interest should be reasonably related to the desired In this setting, where nobody professes to have deter-
end.” fssociated General Contractors y. Altshuler, 490 mined that the quota requirement was necessary or proper
F.2d 9, 18 (1st Cir. 1973), cert. denied, 416 U.S. 957 (1974): as a remedy for supposed wrongs, it is erroneous for
ef. Otera v. New York City Housing .tuthority, 484 F.2d this or any court to validate the arrangement as “cor-
1122, 1134 (2d Cir. 1973): McLaughlin v. Florida, 379 US. rective action.” This would be so even if, contrary to the
184, 193 (1964); Brooks v. Beto, 366 F.2d 1, 12 (5th Cir. ‘ view tendered later in this opinion, such a species of
1966) ; United Siates v. Jeficrson County Ba. of Educ. 380 remedy might somehow survive constitutional scrutiny.
F.2d 385, 390 (Sth Cir.), cort. denied «wi aom. Caddo Par. It is clearly true where no one purports to have fashioned
ish School Ba. v. United States, 289 U.S. 819 (1967). the remedy to repair, aptly and carefully, the supposed
Far from findins or claiming such remedial !rnetion evil it addressed.
for the questioned cistrict lines, the authors of the legisla- Better Gated April 3, 1974, from Avnistant Attorney General J.
tion earnest!y deny the need for if. Tho State, as ifs brief Stanley Pottinger to George D. Zuckerman, A--istent Art rney Gener’,
reminds us (p, 3), drew the 197! lines only “[tlo satisfy ale 6 Sew Vom, & ¢.
6 Brief for Intervenors-Appellees, N.A.A.C.P. et al. p. 4.
Te
424
It is not the court’s proper bus:ness to decide whether
we might, as New York legislators, have found persua-
sive a course of reasoning repudiated by those elected
to write the laws of New York. The repudiation is deei-
sive for us. It is at least decisive where no other authority
(specifically, the United States Attorney General) with
a voice in the matter sustains the “correetive action”
premise. Strictly and narrowly speaking, which may be
the best way to speak for most constitutional law matters,
we are neither required nor entiticd to determine whether
the 1974 distrieting laws might be sustainable upon a
foundation the Legis!ature did not purport even to con-
sider.
Where vital constitutional rights are at stake, asserted
statutory invasions are not justifiable by supposed legis-
lative purposes that are not reasonably discoverable from
what the legislature hus done. Lisenstadt v. Baird, 495
U.S. 458, 447-52 (1972). A purpose never considered and
adopted hy the authoritative organs ef the state’s power
cannot supyiy a “rational basis” (or, of course, any mean-
ingful basis at ali) for a state enactment. Sherbert v.
Verner, 574 U.S. S88, (O07 (1963): see also Gowillion v.
Lightfoot, 364 U.S. 359, 342 (1960); ef. Cantivell v. Con-
nechicu?, 510 U.S. 296, 307-308 (1949). uf fortiori, a ground
deliberate!y rejected by the State ‘erislature cannot sus-
tain a law which, but for thei ereund, violates the tour-
teenth and fifteenth amendments.
That is the insiant case. There is no authoritative claim
that the racial 65% ininimum majority applied to ereate
the disputed districts eould be justified by compelling
need. There is not even an assertion by any responsibie
official of a rational bavis. Beeanso this is so, we should
probably ena this case by striking dow the laws and
‘romanmin?” to the New York Levistature for foers<ed,
rational, lawful Craw? - ef distriet lines. Cf. Cited States
s*
43a
v. Bass, 404 U.S. 336, 349-50 (1971); Bickel & Wellington,
Legislative Purpose and the Judicial Prvocess, 71 Farv.
L. Rev. 1 (1957).
(2) Beyond the things the State Legislature and the
United States Attorney General have said and left unsaid,
the record before us presents no eround for sustaining
the a prieri judgment that some districts must have at
least a 65% nonwhite majority where the county is 35.1%
nonwhite and the State 15% nonwhiic. I vay this on “the
record before us” to leave rvom for some coneeivable record
where a predetermined racisl quota might be found con-
stitutional. One may doubt profoundly that tiere will ever
be such a case. Sufiiee it to say for now that the ease he-
fore us is not it.
As reflected in the precedents reviewed by Judge Oakes,
there is great constitutional force in the premise that the
“Tfjramers of voting districts are required to be color
blind.” Ince v. Rockefeller, 290 F.Supp. 87%, $84 (S.DNY.
1968). See, eg., White v. Regester, 2 U.S. 755, 765-70
(1973); Whitcomb v. Chavis, 403 U.S. 124, 149-60 (1971);
Gomillion v. Lightfoot, 364 U.S. 339 (1960). What should
be still clearer is that the fourteenth and fifteenth amend-
ments forbid the fushionine of electoral Cistricts “so as
to make the voice of one racial groun weak or strony, as
the ease may be.” Whitcomb v. Chavis, 403 U.S. 124, 176-77
(1971) (Douglas, J., concurring and dissenting).
Racial or credal “proportional representation” offends
against the most fundamental tenets of ony constitutional
scheme. Casscll v. Teras, 859 U.S. 282, 286-87 (1956):
Tuahes v. Superior Court, 339 U.S. 460 (1950): Alius v.
Teaxas, 325 U.S. 398, 403 (1945); Shelley v. Kraemer, 354
U.S. 1, 22 (1948). Once we start racial—or reiigions or
ethnie—quotas for voting purposes, we forsake the anchor
of governmental neutrality tha has kept us secure despite
ee EE EEEEEOEEOEOEOEeeee—_T
443
the sometimes raging storms of ¢ oup conflict we have had
to weather. Polyglot and unmelteu as we are, we have been
blessed with reenrrent demonstrations of our ability to
erase racial stigmatization as the sole test fer selecting
leaders aud conferring power. We disgraced ourselves on
the subject before we tardily elecied a Catholic President.
Our most tragic dilemma has been, certainly, the persecu-
tion of nonwhite people, and the degrading aspects of tha
are far from ended. But there is hope in the evidence of
inprovement. If there is any relicious majority, one need
not belong to it to be elected. As for skin color, appellants’
populations exeeeding 50.000 have nonwhiie mavors al-
papers cal! to onr attention that 33 of our cities with
though seven of those cities have white majorities and
only two have nonwhite majorities exeeeding 65%. Notable
among the omissions from this compilation is Los Angeles,
which, with a population approximately 18% black. has had
a black maver since 1973.’
“Racial electoral registers [dividing clectaral dis-
tricts along racial lines like the racial and religious
lines known historically or currently in India, |.cbanon,
and elsewhere], like religious ones, have no place in a
society that honors the Linecin treditieon—-‘of the
peome, by the peop.c, for the neonte. Mere the indi-
vidual is important, nut his race, !'s creed, or his color,
‘ihe principle of equality is at war with the notion that
District A must be repre-ente!? by a Neero, as it is
with the notion that Distriet ' :.est be represented
i
by a Caneasian, Disiv’ct ( hv 2 Tow, District D by a
Cathohe and so on, Ch. Gray ve Salers, 872 0S, B48.
>? my, see: 3] ’ *" _ 2 _
249. ‘The racial electoral register <vstem weights votes
“oT ” oe — = oe , ° . - ,
mong one racial line more heevily then it doos ether
’ -
dt ae a 1, -a°¢ f “ 1 _ ‘ reer . ‘ > - - 5 >
votes, That svsterr, Y waatover naine it is called, is
Sm eget tna
ASa
a divisive force in a conmnnuity, cmphasizing differ-
ences between candidates and voters that are trrelevaidt
in the constitutional sense, Of course race, like reli-
gion, plays an important role in the choices which in-
dividual voters make from among various candidates.
But government has no business designing clectoral
districts along racial or religious lines.”
Wright v. Rockefeller, 376 U.S. 52, 66 (1964) (Douglas, J.,
dissenting) (feotnoie omitted).
The mixed story of racial troubles and conflicts is a long
one. But our concern is not with sociology or polities o
history as such. It should be enough for us that fixed princi-
ples of constitutional law normally bar classifications by
race and that we have been shown nothing whatsoever to
justify the use of a 65% minimum majority for any race
in any district as an advance prescription for districting.
The tlaws in today’s decision, as I sce them, may become
more clearly visible if we (a) consider generally how valid
districting should proceed and (bh) note some of the argu-
nents offered as justifications for today’s result in the
opinion of the court. To begin at the beginning, before
problems of alleved ilegelity may appear, lawfully drawn
state levislative districts presumably reflect some agreed
assumptions, thoneh the nature of these assumptions may
not vet he a pintter of absolute clarity. See Cousins v. City
Counc?! of Citu of Chicago, 503 1.2d 912, 17, 919 (7th Cir.
1°74) (“legitimate or nonjusticiable concerns” may sustain
districting decisions). It mav je supposed that the lines
eneht to follew reasonably strait paths, swervine for
coorraphic or community or politieal subdivision bounda-
° 4° : ee, . 2 1) {*
ries where necessary or rational see Mahan vo Towel, 410
: ; , , a shan
aus ek: Ge comes -_ ma | HO
eS SIs, 29% (1S73): Gaffe ve Craigs, 412 Ss. 790.
-— 45 gma . , . } “i 4°. : oe : -
2 (TG. Sbracing® suhstant Gound nurabers of peo-
464
ple, and forming perimeters as sim ple, regular, and “eouth,”
tc " , ' ; , : ” » ee on ‘ a ‘
yy 8 Clone lic ? Ta Laing) if al, S64 L a. 3 if), 540 (1960), as rood
”
faith and neutrality will allow. Mest fundamentally for this
‘ase, the drawers of the lines must not be encapsulating or
fencing out people of particular races or religions or an-
eestries, whether to maximize or minimize the strength of
any racial or religious or ethnic zroups.
If people have been forced in or ont heearse of race, then,
of course, the fences must he torn down and the districts
in this manner redrawn lawfully. That is, the forbidden use
of rnec must be overcome hy some cordign remedy. But
What is the nature of the pre-ex'stine wrong that could
inake it condign or vermissible to set wp a minimum quota
of 659 or any percentage for one race or croup of races?
This reeord and the majority opinion will he searched in
vain for an answer to this question.
Let us consider Kings County, the foeus of our concern,
and try to fathom better what is involved. The nonwhite
population of the County is 35.1%. Were the nonwhite
people spread evenly through tie County, orderly and sym-
metrical distriets could well include nore with a nonwhite
majority. Cf. Cousins v. City Council of Cily of Chicago,
903 F.2d 912, 921 (7th Cir. 1974).
Add anotiier reality—that racial distribution is not even
through the County. The a prior! 65% fieure could not
serve, excent by some wild accident not suggested to have
happened in this ease, to reflect the racial distribution in
any fair, rational, racially neutral sense. Instead, it would
ensure (as it did in this ease) that an arbitrarily prescribed
number of legislative districts must he rerrymancered to
meet the prescription. It is, of course, conceivable that
some particular district or districts, fairly and lawfully
drawn, could come ont with a population 65% (or any
percent) nonwhite, But there is no faint snegestion that
———
47a
this is what happened here. There is no rational explana-
tion of any kind for the 65% figure in any district beenus
the figure was taken in advance, as a racial quota, ra
than resulting from fair apportionnent on constitution: ty
permissible principles. Cf. Coimpensalory Tincial Reop-
portionment, 25 Stanford L. Rev. 84, 99-100 (1972).
(b) The majority sees in this record “no showing
that the effect of the New York legislature’s drawing the
1974 district lines as it did was invidiously to cancel ont
or minimize the voting strength of white voters in Kings
County.” Whatever may be true of “Kings County” as a
whole, there is precisely an impermissible cancellation or
minimization if the massing of 65% or grester nonwhite
minjorities in the districts that concern us caunot be squared
with the Constitution.
The majority goes on to say:
“Fiven considering that the assembly and senate
districts bere in question would now necessezrily elect
nonwhite assemblymen and senators, an assumption
we by no means may make, there would be no dispro-
portionately nouwhite representation in either jionse.”
(T’ootnotes omitted.)
Like the majority, [am prepared to repudiate the assump-
tion. But the statement by the majority of why it makes no
difference seon:s to me to extend the line of fallacious
reasonine. What does it mean, for purposes of cons!iti-
tional law, to speak of “disproportionately nonwhite renre-
sentation’? Is that supposed evil suffered by Masseein-
sotts, whose nonwhite Senator is returned br an clectorate
less than three percent nonwhite? The point, if ently in
passing, is thet our Constitution forbids ns to reason f
notions about what kind of racia! composition is “proper.
fionate” or “disproportionate” in our legislatures.
OOO OO ee
48a
The clear statement of the ma/ority’s different view
comes in its footnote to the sentence. last quoted. We are
told there:
“The population of Kings County is 64.9 per cent
white, 24.7 per cent black and 10.4 per cent Puerto
Rican. Memorandum of Decision, United States Dep't
of Justice, Nos. V6541-47, July 1, 1974, at 13.
For purposes of the Voting Rights Aet the Puerto
Rican population is considered nonwhite. {But sce
note 4, supra.] Id. at 10-11. hos Kings County is 35.1
per cent nonwhite. Under the 1972 districting, one
out of the ten seuate distriefs contained a substantial
nonwhite mnajoerity pomnlation. Under the amended
1974 plan three of the distriets, or 30 per vent, contain
substantial nonwhite population imajorities—propor-
tionately slightly less minority concentration districts
than the percentage of nonwhite voters in the county.
Interim Report of The Joint Conunittee on Reappor-
tionment, supra, note 8, at 5. Of the 22 assembly
distric:s in Kings County six had aver 60 ver cout
nonwhite populat-on and one over 50 per cent non-
white vopnlation under the 1972 plan. The 1974 plan
created jive districts having over 75 per eent non.
white pepulation and two af aver 65 ner cent. Tins
seven or 31.4 per eent of the distriets contain a
majority of nonwhite population, again less than the
percentage of the nonwhite porulaiier in the county.
Id. at 7-8.
Here, if with unfaggine deference, I find eps in sheer
logic as well ns mnaceemable constifvtionn! doctrine. As T
have mentioned earlier, s sarocity of any kind in a county
need not he a majority in any di-frict at all. See Cousins v.
City Conseil of City of Chicco, AC6 P24 80, 849.49 (7)
Cir). cori. dented, 409 TS, $92 (1972). There is uo cround
49a
in logie or law for translating the percentage relationship
of a iwinority to the whole county population into a per-
centage of districts over which that minority should have
majority control, let alone majority control by some pre-
scribed “effective” margin.
There are unbearable and absurd implications in the
notion of “proportionality” between racial or ethnic popr-
lation pereentages and percentages of districts controlied
by different racial or ethnie groups. Beyond the limited
skin-color divisions, some 65% white and 359 “nonwhite,”
Kings County has 10.7% Italian immigrants or people with
at least one parent who immigrated from Jtaly, some un-
known additional pereentage of Talian ancestry, a similar
fizure of 5.49 plus unknown additional Russian, 35%
Roman Catholic, +.7% recently immigrated Polish, 52.5%:
Protestant, 19.4% Puerto Riean, 1.7% recently from
Austria, 1.7% reeently from Ireland (plus many more of
Trish ancestry), 30.36 Jewish, 2.2% “other” religions,
1.3% reeent Cerrean immigrants, plus a dizzying mass of
others “whose lineage is so diverse as to defy ethnic labels.”
De Fuuis v. Odegaar?, 416 U.S. 312, 332 (1974) (Douglas,
J., dissentin’).. Tlow do we figure out the percentage of
distriets to be controlled by German Catholics, Russian
Jews, black as against white Protestants, ete.? The short
2uswer is, of course, that we don’t. But the apparent “test”
in today’s majority opinion (31.4% neuwhite districts a
“seood” fieure hecause less than the 55.1% nenwhite Kings
County population) implies that perhaps we should. If
that is net ihe implication, the point of the majority's
fcotnote 21 is not discernible. If that is the implicxtion,
§ The figures cited are most!y from the 1970 U.S. Consus. See also
Council of Churehes of the City of New York, “Protestant and Ortiedex
Church Directory.” (1972), p. 81. The exact figures are, in sc: event,
of no consecueres. The point is, of course, the unsortable wetter ef
wmuliiform: minorities.
SOa
if is a matter specially and parti-ularly opposed in this
dissent.
rovy* ° ° > ° °
This is, in sum, a case of raciz] yuotas that are evil and
dangerous beeause there is uo semblance of justification
for them. I would, therefore, reverse and hold the Jaws in
question unconstitutional.
Sla
APPENDIX G
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
United States Courthouse
Foley Square
A. Daniel Fusaro New York 10007
Clerk
SEPTEMBER TERM 1973
United Jewish Organization v. Wilson
Docket No. 74-2037 Decided January 6, 1975
In Judge Oakes’ opinion in the above-entitled case the
following changes have been made:
Page 5973, line S — delete ‘“‘Decided January 6, 1974” and
insert ‘“‘Decided January 6, 197S’’ in place
thereof.
Page 5979, line 8 — delete the “‘period”’ after ‘‘case’’ and
insert a “‘comma’”’ in place thereof.
Page 5979, line 9 — delete “(1973). But after’’ and insert
“(1973), but on remand its motion was granted.
After” in place thereof.
Page 5979, line 13 — delete “Justice Department” and
insert ‘“‘intervenor NAACP” in place thereof.
Page 5979, lines 18 and 19 — delete ‘‘denying the State’s
motion’’ and insert ‘‘granting the NAACP’s
motion’”’ in place thereof.
Page 5985, footnote 13 — delete entirely and insert
“Although the outcome of this litigation does
not turn on whether the 1972 districting was
ever effectuated, its lines were used in the 1972
S2a
primary and general «lections. Thereafter the
District of Columbia District Court found that
the counties in question were not exempt from
the Voting Rights Act." in place thereof.
Page 5993, footnote 20 — delete “Substantial nonwhite
majorities did not result in election of
nonwhites in all cases in, e.g., the 1972
election.”’
Page 5995, footnote 23, 15 lines up from bottom — delete
‘(196S),” and insert ‘‘(1965)),” in place thereof.
Page 5998, line 7 — delete ‘(1946),” and insert “‘(1946)),”
in place thereof.
In Judge Frankel’s dissenting opinion in the above-
entitled case the following changes have been made:
Page 6006, line 3 — delete ‘“‘legislation’’ and insert
““legislation”’ in place thereof.
Page 6010, footnote 7 — delete ‘‘No. 27” and insert ‘‘Nov.
27” in place thereof.
A. DANIEL FUSARO
Clerk
ADF/hd
a
53a
APPENDIX H
UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURGH, INC.., et al.,
Plaintiffs,
v.
Malcolm WILSON, Governor of The State
of New York, et al., Defendants.
No. 74 C 877.
United States District Court,
E.D. New York.
July 2S, 1974.
Suit was instituted to declare redistricted lines of state
senatorial, state assembly and United States congressional
districts in county unconstitutional. The District Court,
Bruchhausen, J., held that action brought pursuant to
Voting Rights Act was required to be dismissed, where of-
fice of Attorney General of United States had approved
redistricted lines; and that objection of plaintiffs, members
of Hasidic community in city, to division into separate
senatorial and assemblanic districts by state, statutes
establishing redistricting lines did not disclose violation of
rights under Fourteenth and Fifteenth Amendments, where
no one was being disenfranchised by redistricting and no
voting right was being extinguished.
Judgment accordingly.
Judgment affirmed, 2 Cir., 500 F. 2d 434.
S4a
1. States — 27(10)
United States — 10
Action, brought pursuant to Voting Rights Act,
challenging validity of redistricted lines of state senatorial,
State assembly and United States congressional districts in
county was required to be dismissed, where office of At-
torney General of United States had approved redistricted
lines. Laws N.Y. 1974, ec. 588-591, 599; 42 U.S.C.A. § 1971
et seq.; Voting Rights Act Amendments of 1970, § 5, 42
U.S.C.A. § 1973c.
2. States — 27(3)
Objection of plaintiffs, members of Hasidic community
in city, to division into separate senatorial and assemblanic
districts by state statutes establishing redistricted lines did
not disclose violation of rights under Fourteenth and Fif-
teenth Amendments, where no one was being disen-
franchised by redistricting and no voting right was being
extinguished. Laws N.Y. 1974, cc. 588-591, 599; 42
U.S.C.A. § 1971 et seq.; Voting Rights Act Amendments of
1970, § S, 42 U.S.C.A. § 1973c; U.S.C.A. Const. Amends.
14, 15.
3. Elections — 48
There is no federal constitutional right either to con-
tiguity or compactness of voting districts. U.S.C.A. Const.
Amends. 14, 15S.
Miller, Cassidy, Larroca & Lewin, Washington, D.C.
(Nathan Lewin Washington, D.C., and Dennis Rapps.
Brooklyn, N.Y., of counsel). for plaintiffs.
Louis J. Lefkowitz, Atty. Gen of N.Y. (George D. Zucker-
man, Asst. Atty. Gen., of counsel), for defendants, Wilson,
Ghezzi, Anderson and Duryea.
me ey
SSa
William B. Saxbe, Atty. Gen. of U.S. (Richard Seldin,
Washington, D.C., and David G. Trager, U.S. Atty.,
E.D.N.Y., of counsel, for defendant, United States.
Jack Greenberg and Eric Schnapper, New York City, for
N.A.A.C.P., and others, applicants for intervention.
BRUCHHAUSEN, District Judge.
This suit was instituted to declare the recently drawan
redistricted lines of the State Senatorial, State Assembly
and U.S. Congressional Districts in Kings County, pur-
suant to Chapters 588, 589, 590, 591 and 599 of the New
York Laws of 1974, unconstitutional.
On April 1, 1974, the Attorney General of the United
States through his authorized representative, J. Stanley
Pottinger, contacted the office of the Attorney General of
the State of New York advising him that the Assemblanic,
Senatorial and Congressional district lines in Kings County
established pursuant to the applicable laws of 1972 were in-
valid under Section 5 of the Voting Rights Act because it
was determined by the Attorney General of the United
States that those lines would produce a racially
discriminatory effect, Exhibit VI annexed to the complaint.
That determination precluded the use of those district lines
within Kings County. The Attorney General of the State of
New York concluded to accept that determination and not
to appeal the decision of Mr. Pottinger. It is alleged in the
memorandum of the N.A.A.C.P. and not controverted that
several groups sought to appeal the ruling of Mr. Pottinger,
but met with failure when their actions were dismissed by
the District Court for the District of Columbia. The New
York State Legislature on May 30, 1974 enacted new lines
in an attempt to comply with removing any discriminatory
aspects of the 1972 lines, and to comply with the deter-
mination of the Attorney General of the United States.
These new lines were submitted for approval, pursuant to
the Voting Rights Act.
S64
It is alleged that the 1974 redistricting laws violate the
rights of the plaintiffs in denying them the equal! protection
of the laws and in depriving them of liberty without due
process of law in violation of the Fourteenth and Fifteenth
Amendments to the United States Constitution and are,
consequently, invalid. In short, the plaintiffs, members of
the Hasidic community in Williamsburgh, object to be
divided into separate senatorial and assemblanic districts
by the challenged 1974 State statutes.
The defendants then moved for a dismissal of the com-
plaint for failure to state a claim for which relief can be
granted and for lack of jurisdiction.
Subsequent to a full hearing before this Court, on July 1,
1974, Mr. J. Stanley Pottinger, acting on behalf of the At-
torney General of the United States, gave approval of the
new 1974 lines as not being violative of the Voting Rights
Act. See letter addressed to the Attorney General of the
State of New York together with a Memorandum and
Decision attached to the Supplemental Memorandum for
the N.A.A.C.P., appearing as amicus curiae.
The position of the plaintiffs is untenable, and the
notions of the defendants to dismiss are granted.
[1] In view of the approval of the 1974 lines by the office
of the Attorney General of the United States, the cause of
action brought pursuant to the Voting Rights Act must be
disrnissed. In Allen v. State Board of Elections, 393 U.S.
544, 89 S.Ct. 817, 22 L.Ed.2d 1, the Court held in part at
page 548, 89 S.Ct. at page 822:
“In South Carolina v. Katzenbach, 383 U.S. 301, 86
S.Ct. 803, 1S L.Ed.2d 769 (1966), we held the provisions
of the Act involved in these cases to be constitutional.
These cases merely require us to determine whether the
various state enactments involved are subject to the
requirements of the Act.”’
57a
The Court further held in part at pages 549, SSO, at pages
823 of 89 S.Ct:
‘“* * * Once the State has successfully complied with the
§ S approval requirements, private parties may enjoin the
enforcement of the new enactment only in traditional
suits attacking its constitutionality; there is no further
remedy provided by § 5.”’
{2] The allegations by the plaintiffs of a violation of their
rights pursuant to the Fourteenth and Fifteen Amedments
to the Constitution are also untenable. Jurisdiction is noted
pursuant to 28 U.S.C.A. § 1343, and 42 U.S.C.A. § 1983.
In Ince v. Rockefeller, S.D.N.Y., 290 F.Supp. 878, the
Court held in part at page 883:
‘“* * * Pleas for separate community recognition, similar
to those raised by plaintiffs here, were made by in-
tervenors from Flatbush and Bay Ridge in contesting the
recently enacted congressional districts in New York
State. In rejecting their contentions, the three-judge
Court in its unanimous opinion in Wells v. Rockefeller,
281 F.Supp. 821, 825(S.D.N.Y. 1968) stated:
“The Legislature cannot be expected to satisfy, by its
redistricting action, the personal political ambitions or
the district preferences of all of our citizens. For everyone
on the wrong side of the line, there may well be his coun-
terpart on the right side. The twenty or more identifiable
communities of Brooklyn may well have preserved their
own traditions from the days of the Dutch, although in
today’s rapidly changing world, this is doubtful. But even
Brooklyn’s large population will not support twenty com-
munity congressmen. Of necessity, there must be lines
which divide.’ ™
[3] It is further well settled that there is no federal con-
stitutional right either to contiguity or compactness of
voting districts. Wood v. Broom, 287 U.S. 1, 53 $.Ct., 1.77
L.Ed. 131.
S8a
The case at bar is unlike that ir Gomillion v. Lightfoot,
364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 where the
Alabama legislature by alteration excluded all but five of
400 Negro voters from the City of Tuskegee voting rolls. In
this case as in the Ince case, supra, no one is being disen-
franchised by the redistricting and no voting right is being
extinguished.
It is further well settled that racial considerations have
been approved to correct a wrong. The use of a pupil
assignment plan, based on race, was upheld in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91
S.Ct. 1267, 28 L.Ed.2d 554.
In Norwalk Core v. Norwalk Redevelopment Agency, 395
F.2d 920 (2d Cir., 1968), racial considerations were
sustained in promoting integration. See also Otero v. New
York City Housing Authority, 484 F.2d 1122 (2d Cir., 1973).
In the field of labor, racial quotas requiring preferential
hiring were sustained to overcome prior discrimination,
Associated General Contractors of Mass. Inc. v. Altshuler,
1 Cir., 490 F.2d 9, cert. denied 416 U.S. 957, 94 S.Ct. 1971,
40 L.Ed.2d 307 (1974).
The Court after careful consideration of the record,
arguments and applicable law concludes that the plaintiffs’
motions for a preliminary injunction and summary
judgment be denied. The defendant’s motions to dismiss
the complaint are granted.
It is so ordered.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.