# Petition — United Jewish Organizations of Williamsburgh, Inc. v. Carey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2106%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 144 ## Text | 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 i oeenenennllkemeiesianmenmeeeninnton ene em 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 > > 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? my, see: 3] ’ *" _ 2 _ 249. ‘The racial electoral register - - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2106%3A01. Public record. Not legal advice.