Amicus Brief — United Jewish Organizations of Williamsburgh, Inc. v. Carey

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Be ee DEC 99 1975

Supreme Court of the United States

RELA LY MK JR. | rPK

October Term, 1975 =

No. 75-104

UNITED JEWISH ORGANIZATIONS OF

WILLIAMSBURGH, INC., e¢ al.,

Petitioners,

HUGH L. CAREY, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF

AMERICAN JEWISH CONGRESS, ANTI-DEFAMATION

LEAGUE OF B’NAI B’RITH and JEWISH LABOR

COMMITTEE, AMICI CURIAE, IN SUPPORT

OF PETITIONERS

WILL MAsLow

SHAD POLIER

Attorneys for

American Jewish Congress

Amicus Curiae

15 East 84th Street

New York, New York 10028

Larry M. LAVINSKy

ARNOLD FORSTER

Attorneys for

Anti-Defamation League of B’nai B'rith

Amicus Curiae

315 Lexington Avenue

New York, New York 10016

James LIpsic

Attorney for

Jewish Labor Commitiee

Amicus Curiae

Loris WALDMAN 25 East 78th Street

Of Counsel New York, New York 10028

TABLE OF CONTENTS

Interest of the Amici .

Statement Pe

Question Presented sessile

Argument

The use of racial quotas to determine legisla-

tive district boundaries is not justified by any-

thing in this record and violates constitutional

prohibitions of racial aan in official deci-

sion-making

A. The Basie Prohibition of the Use of Racial

Factors

B. The Use of Race-Conscious Remedies Is Lim-

ited ee i

C. The Challenged Redistricting Rests Upon a

65% Racial Proportion Which No Responsi-

ble Official Determined to Be —— or

Required

D. There Was No Affirmative Finding that the

1972 Apportionment Was Designed to Reduce

or Suppress Minority Representation

E. There Is No Relationship Between the ‘‘Rem-

edy’’ and the Violation Which Triggered 7

eration of Section 5 of the Act

Conclusion

TABLE OF AUTHORITIES

PAGE

Cases:

Allen v. State Board of Elections, 393 U.S. 544 (1969) 16

Anderson v. Martin, 375 U.S. 399 (1965) .................... 9

Bridgeport Guardians, Inc. v. Commission, 482 F. 2d

1333 (2d Cir. 1973) 12

Brown v. Board of Education, 374 U. S. 483 (1954) . : 2

Cardona v. Power, 384 U.S. 672 (1966) ........ 2

Carter v. Gallagher, 452 F.2d 315 (Sth Cir. 1971), cert.

denied, 406 U.S. 950 (1972) 12

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ) 12

City of Richmond v. United States, U.S. ——, 95

S. Ct. 2296 (1975) ...... : 19

Contractors Ass’n of Eastern Pennsyiva ania Vv. Seare-

tary of Labor, 442 F.2d 159 (3rd Cir. 1971), cert.

denied, 404 U.S. 854 (1971) nm 12

Cousins v. City Council of Chicago, 466 F. 2d 830 (7th

Cir. 1972), cert. denied, 409 U.S. 893 (1973) ...... 8,18

Fortson v. Dorsey, 379 U.S. 433 (1965) 00000. 8

Gaffney v. Cummings, 412 U.S. 735 (1973) idle g

Georgia v. United States, 411 U.S. 526 (1973)... 18

Gomillion v. Lightfoot, 364 U.S. 399 (1960)... | 8

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . 2

Kilgarlin v. Martin, 252 F.Supp. 404 (S.D.Tex. 1966),

rev’d on other grounds, 386 U.S. 120 (1967) __. 8

Kirkland and Hayes v. The New York Department of

Correctional Services, 520 F.2d 420 (2nd Cir.

pil SESE Se OE SCAT Mas Ce eevee ey — >

Lau v. Nichols, 414 U.S. 563 (1974) 000. 2

Itt

PAGE

Mann v. Davis, 245 F.Supp. 241 (E.D.Va. hs aff’d 382

U.S. 42 (1965) . Araceae 8

Milliken v. Bradley, 418 U. S. 717 (1974) | aie “13, 19

New York v. United States of America, Civil Action

I cao ee ee ee 5

North Carolina State Board of Education v. Swann,

402 U.S. 43 (1971) ee oe ae

Reynolds v. Simms, 377 U.S. 533 (1964) 20000000... 14

Shelley v. Kraemer, 344 U.S. 1 (1948) : 2,14

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S.1 (1971) see pie 12

Sweatt v. Painter, 339 U.S. 629 ( 1950) Roni De eee 2

Torres v. Sachs, 381 F.Supp. 309 (S.D.N.Y. 1973) ..... 5

United States v. International Brotherhood of Elec-

trical Workers Local 212, 472 F.2d 634 (6th Cir.

1973) LOOT POSIT Te ene Oe 12

United States v. Ironworkers Local 86, 443 F.2d 544

(9th Cir. 1971), cert. denied, 404 U.S. 984 (1971) 12

United States v. Wood, Wire & Metal Lathers Union

Local 46, 471 F.2d 408 (2nd Cir. 1973) ............ 12

Vulean Society of the New York City Fire Depart-

ment, Ine. v. Civil Service Commission, 490 F.2d

387 (2nd Cir. 1973) Saar sae sanaidcutlaomel 12

Whitcomb v. Chavis, 403 U.S. 124 (1973) 0000... 8.18

White v. Regester, 412 U.S. 753 (1973) ..000....... 8,18

Winston-Salem/Forsyth County Board of Education

v. Scott, 404 U.S. 1221 (1971) ©............0...0000 12

Wright v. Rockefeller, 376 U.S. 52 (1964) ................... 9,17

PAGE

Statutes:

Laws of New York, ch. 11 (1972) 3, 5

Laws of New York, chs. 588-591, 599 (1974) 6

Pub. L. No. 94-73 (July 24, 1975) | 11

Voting Rights Act of 1965, as amended, 44, 42 U.S.C.

$1973b 4

Voting Rights Act of 1965, as amended, 45, 42 U.S.C.

§1973¢ | | 5)

Miscellaneous:

Derfner, Discrimination and the Right to Vote, 26

Vanderbilt L.Revy. 523 (1973) | 19

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-104

NG Si

Unitep Jewish OrGANizaTions oF WILLIAMSBURGH, et al.,

Petitioners,

Hveu L. Carey, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF

AMERICAN JEWISH CONGRESS, ANTI-DEFAMATION

LEAGUE OF B’NAI B’RITH and JEWISH LABOR

COMMITTEE, AMICI CURIAE, IN SUPPORT

OF PETITIONERS

Petitioners have challenged certain reapportionment

laws adopted by the State of New York, in so far as they

affect areas of Kings County, on the ground that the dis-

trict boundaries were purposefully drawn on the basis of

race, in violation of the 14th and 15th Amendments to the

United States Constitution. Their complaint was dismissed

and the decision was affirmed, 2 to 1, by the Court of Ap-

peals for the Second Circuit. A petition for writ of certio-

rari to review the judgment of the Court of Appeals was

granted by this Court on November 11, 1975.

Interest of the Amici

This brief is submitted on behalf of three national

Jewish organizations, the American Jewish Congress, the

Anti-Defamation League of B’nai B’rith and the Jewish

Labor Committee. The American Jewish Congress was

founded in 1908 and the Jewish Labor Committee in 1934.

The B’nai B’rith was founded in 1843 and established the

Anti-Defamation League as its educational arm in 1913.

All three of these organizations are concerned with the

preservation of the security and constitutional rights of

American Jews through the preservation of the rights of all

Americans. Since their creation, they have opposed racial

and religious discrimination in voting, employment, edu-

cation, housing and public accommodations. Among their

activities devoted to these ends, they have filed briefs as

amici in this Court in cases where it was felt that the rights

of any racial, religious or ethnic group have been threat-

ened. These cases have included Shelley v. Kraemer, 344

U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950);

Brown v. Board of Education, 374 U.S. 483 (1954); Jones

v. Alfred H. Mayer Co., 392 U.S. 409 (1968); and Lau v.

Nichols, 414 U.S. 563 (1974).

More specifically, in the area of voting rights, certain

of the amici filed a friend of the Court brief in Cardona v.

Power, 384 U.S. 672 (1966), urging the unconstitutionality

of the New York State literacy test on the grounds that it

unlawfully disenfranchised American citizens of Puerto

Rican origin.

We submit this brief because we believe that our system

of constitutional liberties is impaired when the law gives

sanction to the use of race in the decision-making processes

of governmental agencies, except in certain circumstances

where it is necessary to correct past purposeful discrim-

ination.! We regard as unsound the basic postulates on

which the 1974 New York reapportionment statutes rested.

If those postulates and the resulting reapportionment are

upheld, sanction will be given to racial proportional repre-

sentation, racial and ethnic divisiveness will be intensified,

and the process of popular elections on which our govern-

ment rests will be seriously distorted.

Accordingly, amici have sought and obtained the con-

sent of the parties to this case to the submission of this

brief.

Statement

Early in 1972, the State Legislature adopted Chapter

11 of the Laws of New York, 1972, reapportioning the legis-

lative districts of the state on the basis of the 1970 census.

Because a literacy test had been in effect until 1970 and

1. It is the view of amici that, under the First Amendment, the

limitations on governmental discrimination based on race are to a

large extent applicable also to discrimination based on religion. We

confine ourselves in this brief, however, to considerations of distinc-

tions based on race. That is the only issue involved at this stage of

the proceedings since petitioners do not question here the unanimous

conclusion of the Court of Appeals that they lacked standing to sue

as a religious group and that they had no right to relief as such a

group (510 F.2d at 250-51).

because less than 50% of the voting age residents in Kings

County and two other counties in New York State had

voted in the presidential election of 1968, it had been deter-

mined that the trigger provisions of Section 4 of the Voting

Rights Act (42 U.S.C. 1973b) applied to these areas.

In late 1971, the State of New York sought and obtained

a consent judgment under Section 4(a) of the Voting

Rights Act, exempting the three counties from the opera-

tions of the Act on the ground that in the preceding ten

years the literacy test had not been used with a discrimina-

tory purpose or effect. Before consenting to this judgment,

the Department of Justice conducted a four-month investi-

gation which included an examination of registration ree-

ords of selected persons within the three counties, inter-

views with election and registration officials and interviews

with persons familiar with registration activity in black

and Puerto Rican neighborhoods in those counties. In addi-

tion, New York officials submitted affidavits indicating a

less than 5 percent failure ratio among all applicants taking

the literacy tests in the affected districts and attesting to

registration drives conducted during the 1960’s in pre-

dominantly black and Puerto Rican areas. Based on the

Department’s own investigation and the State submissions,

David L. Norman, Assistant Attorney General in charge

of the Civil Rights Division, concluded that there was no

reason to believe that a literacy test had been used in the

three counties with discriminatory purpose or effect. He

noted, in an affidavit, filed April 3, 1972 ( Affidavit of Assist-

ant Attorney General Norman, filed April 3, 1972, in New

York v. United States of America, Civil Action No. 2419-

71):

New York presently has suspended all requirements

of literacy as a condition of registration and voting

as required by the 1970 Amendments to the Voting

Rights Act. Our investigation revealed no allegation

by black citizens that the previously enforced literacy

test was used to deny or abridge their right to register

and vote by reason of race or color.

Accordingly, application of the Act to these counties

was lifted on April 3, 1972. It was subsequently restored

on the basis of a ruling in a 1973 proceeding that the State’s

failure to provide a Spanish translation of the ballots used

in the 1973 election constituted illegal use of a literacy test

in violation of the Act. Torres v. Sachs, 381 F. Supp. 309

(S.D.N.Y. 1973).

Section 5 of the Act (42 U.S.C. Section 1973c) requires

approval by either the United States District Court for

the District of Columbia or the United States Attorney

General of any change in the laws affecting voting in a

state or county held subject to Section 4 of the Act. Accord-

ingly, Chapter 11 of New York’s 1972 Laws, which rou-

tinely reapportioned the State Legislature on the basis of

the 1970 Census, was submitted to the Attorney General

for approval insofar as it applied to the three counties held

to be covered by Section 4 of the Voting Rights Act.

On April 1, 1974, the United States Dcpartment of Jus-

tice, through Assistant Attorney General J. Stanley Pot-

tinger, informed the New York Attorney General’s office

that the redistricting in Kings and New York Counties was

not acceptable because ‘‘we cannot conclude, as we must

under the Voting Rights Act, that those portions of these

redistricting plans will not have the effect of abridging the

right to vote on account of race or color.’’ The Attorney

General noted that certain of the lines in these areas ‘‘ap-

peared to have the effect of overly concentrating’’ minor-

ity populations in certain districts while ‘‘diffusing’’ the

remaining minority population into a number of other dis-

tricts.

Because of the imminence of the primary and general

elections of 1974, the state did not exercise its right to chal-

lenge this ruling but proceeded to adopt new apportion-

ment laws for those two counties. (Laws of New York

(1974), Chapters 588-591 and 599). It is not questioned

that these statutes were drafted to meet the objections ex-

pressed by the Department of Justice in the April 1 letter

and that New York’s legislative draftsmen understood

that in order to meet these objections it wag necessary to

draw the lines in such a way as to assure that there would

be three Senate and two Assembly districts in Kings

County with non-white majorities of at least 65 per cent.

New district lines, so drafted, were enacted and again sub-

mitted to the Attorney General. In a Memorandum of

Decision dated July 1, 1974, they were given the approval

required by statute.

These proceedings were initiated in the United States

District Court for the Eastern District of New York on

June 1, 1974. Petitioners (plaintiffs below), are organiza-

tions of voters residing in areas of Kings County affected

by the new apportionment laws. They challenged the con-

situtionality of the 1974 laws, asserting their rights, both

as whites and as members of a discrete religious group, to

legislative boundary lines drawn without conscious, delib-

erate effort to establish specific racial proportions in desig-

nated districts.

Question Presented

Under the 14th and 15th Amendments, may apportion-

ment laws be deliberately drawn to assure minority groups

voting control in certain legislative districts, where there

has been no affirmative finding that the prior apportion-

ment was designed to reduce or suppress minority repre-

sentation?

ARGUMENT

The use of racial quotas to determine legislative

district boundaries is not justified by anything in this

record and violates constitutional prohibitions of racial

preferences in official decision-making.

A. The Basic Prohibition of the Use of Racial Factors

All parties to this case, and both the majority and dis-

senting judges in the court below, agree that the challenged

state legislative plan was ‘‘specifically drawn to ensure

nonwhite voters a ‘viable majority’... in state senatorial

~d assembly districts.’’ 510 F.2d 512, 514. As more par-

ticularly described by the dissenting judge below: ‘‘* * *

[T]he Legislative Committee staff proceeded to redraw

lines under a controlling mandate to see that seven Assem-

bly and three Senate districts had nonwhite majorities of

65 percent or greater. The 65 percent figure was taken on

the explicit premise that anything less (given lower rates

of voter registration and turnout) would render uncertain

the power of the nonwhite majority to control election

results in those districts.’’

Basic to our principles of representative democracy is

the requirement that voting districts be established with-

out regard to race or color. This principle is enshrined

in the Fourteenth and Fifteenth Amendments and has

often been stated by the Federal courts at all levels. See,

e.g., Gaffney v. Cummings, 412 U.S. 735, 751 (1973) ; Fort-

son v. Dorsey, 379 U.S. 433 (1965); White v. Regester, 412

U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1973) ;

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ; Mann v. Davis,

245 F’. Supp. 241, 245 (E.D. Va.), aff’d 382 U.S. 42 (1965);

Kilgarlin v. 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 (7th Cir. 1972), cert.

denied, 409 U.S. 893 (1973).

The opprobrium rightly attaching to racial gerryman-

dering finds its counterpart in other aspecis of our national

life. The allocation of a ‘‘proportionate’’ share of avail-

able jobs, dwellings, school places or legislative districts

to each racial, ethnie or religious segment in the commu-

nity would fragment and divide our society by treating

each group as a monolithic entity entitled, as such, to a

prescribed share of each societal facility. Such allocation

weakens the fabric of a community sufficiently battered by

a wide variety of tensions and emphasizes group difference

rather than communal cooperation.

Racial, ethnic or religious quotas, whether in employ-

ment, education or housing, offend against our traditional

notions of individual worth and dignity. ‘‘The replace-

ment of individual rights and opportunities by a system

of statistical classifications based on race is repugnant to

the basic concepts of a democratic society.’’ Kirkland and

Hayes v. The New York Department of Correctional Serv-

ices, 520 F.2d 420, 427 (2d Cir. 1975).

Employment of racial quotas in the electoral process is

particularly fraught with dangers. As Justice Douglas so

eloquently stated in his dissent in Wright v. Rockefeller,

376 U.S. 52, 67 (1964):

When racial or religious lines are drawn by the state,

the multi-racial, multi-religious communities that our

Constitution seeks to weld together as one become

separatist; antagonisms that relate to race or to reli-

gion rather than to political issues are generated;

communities seek not the best representative but the

best racial or religious partisan.

By drawing district lines on a racial basis, no less than

by labeling a candidate by race on the ballot, the state

indicates ‘‘that a eandidate’s race or color is an important

—perhaps paramount—consideration in the citizen’s

choice.’’ Anderson v. Martin, 375 U.S. 399, 402 (1965).

In so doing, it reinforces prejudices, confirms perceived

differences between the races and totally destroys the

state’s educative function on behalf of racial equality and

neutrality in the political process.

Racial and ethnic quotas in redistricting, moreover, pose

immense practical questions leading to absurd, often ir-

reconcilable results. As Judge Frankel stated in his dis-

sent below (510 F.2d at 533):

There are unbearable and absurd implications in the

notion of ‘‘proportionality’’ between racial or ethnic

population percentages and percentages of districts

controlled by different racial or ethnic groups. Be-

yond the limited skin-color divisions, some 65 percent

white and 35 percent ‘‘nonwhite,’’ Kings County has

10.7 percent Italian immigrants or people with at least

one parent who immigrated from Italy, some unknown

additional percentage of Italian ancestry, a similar

figure of 5.9 percent plus unknown additional Russian,

35 percent Puerto Rican, 1.7 percent recently from

Austria, 1.7 percent recently from Ireland (plus many

more of Irish ancestry), 30.3 percent Jewish, 2.2 per-

cent ‘‘other’’ religions, 1.3 percent recent German im-

migrants, plus a dizzying mass of others ‘‘whose line-

age is so diverse as to defy ethnic labels.’’ DeF unis

v. Odegaard, 416 U.S. 312, 332 (1974) (Douglas, J.

dissenting). How do we figure out the percentage of

districts to be controlled by German Catholics, Rus-

sian Jews, black as against white Protestants, ete.?

The short answer is, of course, that we don’t. But

the apparent ‘‘test’’ in today’s majority opinion (31.4

percent nonwhite districts a ‘‘good’’ figure because less

than the 35.1 percent nonwhite Kings County popula-

tion) implies that perhaps we should.

One particularly anomalous result is the fate of the

Puerto Rican minority in this case, the principal victims

of the English-only ballot which served to trigger applica-

tion of Section 5 of the Act. Although the Department of

Justice in its July 1, 1974, ruling assumed that this group

enjoyed the same rights under the Voting Rights Act as

Negroes (pp. 10-11), it found no way to give them ‘‘pro-

portionate’’ representation (pp. 14-16).

Judge Frankel’s recital of the complications which

would result from approval of the challenged New York

Statutes and the underlying assumptions on which they

rest is no mere reductio ad absurdum. Under the newly

enacted extension of the Voting Rights Act, the majority

holding below would cause Judge Frankel’s elucidation of

the ‘‘unbearable’’ burden of attempting to assure electoral

proportionality for racial and ethnic groups to become a

reality.

The Voting Rights Act as extended now not only covers

such non-Southern areas as parts of New York, California,

Colorado and Alaska but protects non-English speaking

minorities, including Alaskan natives, persons of Spanish

heritage, Asian Americans and American Indians. Pub.

L. No. 94-73 (July 24, 1975). The complexities of deter-

mining initially whether apportionment laws have the ‘‘ef-

fect’’ of abridging the rights now guaranteed by the Act

to each of these groups and the further difficulties of de-

vising ‘‘remedies’’ which allot particular groups effective

voting control over a sufficient number of districts to

assure their proportionate representation in the legislature,

boggle the mind. Protecting each particular group, under

the ‘‘standards’’ employed by the New York Legislature

and approved by the court below, without at the same time

trenching on the rights of other protected groups, or fail-

ing to respec. historic boundaries and to assure compact

and contiguous districts, would appear all but impossible.

B. The Use of Race-Conscious Remedies Is Limited.

For reasons of both principle and practicality, there-

fore, it is vital that any exception to the constitutional

condemnation of racial quotas be narrowly confined. And

the Courts have indeed confined the permissible use of

racially conscious remedies to those instances in which it

is deemed necessary to cure racial discrimination and where

no alternative, less invidious way to achieve this end is

available. See, e.g., Vulcan Society of the New York City

Fire Department, Inc. v. Civil Service Commission, 490

F. 2d 387 (2d Cir. 1973); United States v. Wood, Wire &

Metal Lathers Union, Local 46, 471 F. 2d 408 (2d Cir. 1973).

Thus race-conscious remedies have been utilized by the

lower courts to provide relief to victims of individual em-

ployment discrimination® and to change the racial composi-

tion of work forces whose racial makeup was the product

of prior discrimination.? This Court has yet to decide

upon the appropriateness of such relief. And, even in con-

sidering remedies to dismantle de jure segregated school

systems, it has not endorsed use of a ‘‘fixed racial balance

or quota.’”*

But the use of race conscious remedies to reverse the

effects of prior discrimination, because it injects consider-

ations that are customarily forbidden to official decision-

making, must be carefully circumscribed. ‘‘[T]he task is

2. See, e.g., Castro v. Beecher, 459 F. 2d 725 (1st Cir. 1972).

3. Carter v. Gallagher, 452 F. 2d 315 (8th Cir. 1971), cert. den.

406 U.S. 950 (1972) ; Contractors Ass'n of Eastern Pennsylvamia v.

Secretary of Labor, 442 F. 2d 159 (3rd Cir. 1971), cert. den. 404

U.S. 854 (1971); see also United States v. Ironworkers Local 86,

443 F. 2d 544 (9th Cir 1971), cert. den. 404 U.S. 984 (1971);

Castro v. Beecher, 459 F. 2d 725 (1st Cir. 1972); United States v.

International Brotherhood of Flectrical Workers Local 212, 472

F. 2d 634 (6th Cir. 1973); United States v. Wood, Wire & Metal

Lathers Union, Local 46, 471 F. 2d 408 (2d Cir. 1973) ; Bridgeport

Guardians, Inc. v. Commission, 482 F. 2d 1333 (2d Cir. 1973). But

see Kirkland and Hayes v. The New York Department of Correctional

Services, 520 F. 2d 420 (2d Cir. 1975).

4. Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1971); North Carolina State Board of Education v. Swann,

402 U.S. 43 (1971); Winston-Salem/Forsyth County Board of

Education v. Scott, 404 U.S. 1221, 1227 (1971).

to correct, * * * ‘the condition that offends the Constitu-

tion.’’’ Milliken v. Bradley, 418 U.S. 717, 738 (1974). Such

remedies have been upheld only after an express determina-

tion of prior discrimination. That determination, in turn,

has rested upon a full and proper record, sufficient to sup-

port the finding of discrimination. The remedy has been

causally related to the discrimination found to exist and

carefully formulated by the tribunal responsible for im-

posing it.®

In the present case, none of these standards is met.

As we shall show, a significant redistricting has admittedly

been based upon a racial formula for which no one will as-

sume responsibility, embodying a percentage proportion

which remains unarticulated, undefended and unsupported

in any official determination, unaccompanied by any finding

of racial discrimination in prior redistricting, and triggered

by an electoral ‘‘device’’—the failure to print bilingual

ballots—which has no causal relationship whatever of any

kind to the conditions which the 1974 statute was supposed

to correct. To permit legislative district lines to be set

on the basis of racial proportions in such circumstances is

to sanction a dangerous, ill-advised incursion into the prin-

ciple of race-free decision-making in general and race-free

redistricting in particular.®

5. See cases cited supra, footnotes 2, 3, and 4.

6. The suggestion that petitioners lack standing to complain be-

cause whites are in the majority in a number of districts proportion-

ate to the white population of Kings County as a whole and because

white legislative representation from the County more than matches

the white proportion in the entire County should be rejected out of

hand. Whites in the gerrymandered districts are entitled to race-

free districting determinations. The fact that other whites in other

(footnote continued on next page)

C. The Challenged Redistricting Rests Upon a 65%

Racial Proportion Which No Responsible Official

Determined to Be Appropriate or Required.

Although all parties agree that the redistricting was ac-

complished by consciously establishing certain districts

with a 65% nonwhite population, the 65% formula resem-

bles an illegitimate child whose percentage no one will ac-

knowledge. The state authorities. gained the impression

that only a minimum 65% nonwhite district would satisfy

the United States Attorney General and they proceeded

accordingly. The Attorney General disclaims responsibil-

ity for this formula and asserts only that the 1972 redis-

tricting failed, in his opinion, to satisfy the Act. Interve-

nors seek to defend the rationality of the 65% formula but

fail to point to any official determination by any responsible

official adopting, explaining or justifying it.

The consututional imperative of color blind decision

making cannot be so casually overridden. Even if a limited

exception is to be recognized for racial preferences required

portions of the County may not be similarly prejudiced (or may,

indeed, be advantaged by the racially conscious concentration of non-

whites in certain districts) does not detract from the Constitutional

deprivation visited upon petitioners or their standing to complain.

Theirs are individual and personal rights which have been invaded

and the deprivation does not depend on the electoral strength of their

racial group as a whole. Shelley v. Kraemer, 334 U.S. 1, 22 (1948) ;

see Reynolds v. Sims, 377 U.S. 533, 561 (1964). In fact, the very

use of a standard which determines injury, in this context, by evalu-

ating whether there is proportionality between the percentage of

districts controlled by different racial or ethnic groups and these

groups’ percentage in the population is constitutionally impermissible.

It necessarily imparts into the districting process concepts of racial

proportional representation alien and abhorrent to our electoral

system. ;

to overcome past racial discrimination, at the very least the

official determinations embodying that exception must clear-

ly and precisely express both the facts justifying such relief

and the precise remedy called for. On this record, the

necessary underpinning for the racial quotas embodied in

the enactment under challenge is wholly lacking.

D. There Was No Affirmative Finding that the

1972 Apportionment Was Designed to Re-

duce or Suppress Minority Representation.

The majority below argued that the state’s prior use of

the literacy test and untranslated English ballot coupled

with the 1972 redistricting constituted ‘‘invidious diserim-

ination in favor of white voters and against nonwhites

* * **? and thus justified the 1974 racial gerrymander.

(510 F.2d 525).

As we shall show below, the mere existence of trigger

factors unrelated to redistricting—here an English-only

ballot and low levels of minority voting—do not warrant

the extraordinary remedy of drawing district lines to as-

sure to certain races voting control of particular legislative

districts. Nor, contrary to the implications in the majority

opinion below, did the Attorney General affirmatively find

such ‘‘invidious discrimination’’ in the drawing of the

1972 lines as to give constitutional sanction to such a

remedy. The Attorney General stated:

First, with respect to the Kings County congres-

sional redistricting, the lines defining district 12 and

surrounding districts appear to have the effect of

overly concentrating black neighborhoods into district

12, while simultaneously fragmenting adjoining black

and Puerto Rican concentrations into the surrounding

majority white districts. We have not been presented

with any compelling justification for such configuration

and our own analysis reveals none. Moreover, it ap-

pears that other rational and compact alternative dis-

tricting could achieve population equality without such

an effect. (Emphasis added.)

Senate district 18 appears to have an abnormally

high minority concentration while adjoining minority

neighborhoods are significantly diffused into surround-

ing districts. In the less populous proposed assembly

districts, the minority population appears to be con-

centrated into districts 53, 54, 55 and 56, while minority

neighborhoods adjoining those districts are diffused

into a number of other districts. (Emphasis added.)

He concluded:

* * * on the basis of all the available demographic

facts and comments received * * * 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 race or color,-we have con-

cluded that the proscribed effect may exist in parts of

the plans in Kings and New York County. (Emphasis

added. )

We recognize, of course, that the process of legislative

apportionment can be used to disfranchise voters and that

it has been so used against non-whites. It is for that rea-

son that this Court held, in Allen v. State Board of Elec-

tions, 393 U.S. 544 (1969), that apportionment measures

were included among those that must receive review under

Section 5 where the trigger provisions of Section 4 are

operative.

att

But the Attorney General’s decision does not rise to an

affirmative finding that the 1972 apportionment, in so far

as it affected Kings County, was employed for that purpose

or had that effect. It does not provide an adequate sub-

stantive or procedural foundation for a reversal of the

long-standing judicial policy that race should not be a de-

terminant in drawing district lines.

As a substantive matter, the Attorney General’s analy-

sis hardly presents a convincing case of discriminatory

abridgement of minority political strength. Minority

voters, like political scientists, are not of one mind as to

whether minority political strength is maximized by creat-

ing strong political blocs in a large number of districts or

concentrating the overwhelming number of votes in a few

‘*safe’’ minority districts. In Wright v. Rockefeller, 376

U.S. 52 (1964), minority voters challenged a district plan

allegedly drawn on racial lines and designed to concentrate

Blacks in safe Negro districts. The Court rejected the

challenge for failure of proof but noted in passing that

‘“some of these voters * * * would prefer a more even

distribution of minority groups among the four congres-

sional districts, but others, like the intervenors in this case,

would argue strenuously that the kind of districts for which

appellants contended would be undesirable * * *.’’ 376 U.S.

at 57-58.

But even if the Attorney General’s 1972 opinion were

based on appropriate standards of possible abridgement,

his negatively couched, ambivalent ruling cannot provide

an adequate constitutional foundation for a racial gerry-

mander,

All that the Attorney General was required to find un-

der the Voting Rights ct, in order to disapprove the

change submitted to him, and the most that can be read

into his actual findings, was that the State of New York

had not sustained its legal burden of proving that the 1972

plan would not have the effect of abridging the right to

vote on grounds of race and color.’ In actuality, however,

ambivalence faded into ambiguity, for the Attorney Gen-

eral did not even find that this ‘‘would’’ be its effeet, only

that it ‘‘may.’’ The Attorney General’s ambivalent and

negatively couched finding with respect to the 1972 New

York redistricting statute may well have been consonant

with his obligation under the Voting Rights Act. It can-

not, however, form a factual predicate or justification for

a redistricting law embodying a blatant, purposeful racial

classification.

In cases alleging infringement of the 14th and 15th

Amendments arising out of a racial gerrymander, the bur-

den of proof is on the challenging party to affirmatively

establish the presence of discrimination. See, e.g., Whit-

comb v. Chavis, 403 U.S. 124 (1971); White v. Regester,

412 U.S. 755 (1973); Cousins v. City Council of City of

Chicago, 503 F.2d 912 (7th Cir. 1974). This no doubt re-

flects the Court’s reluctance to invade the political process

of redistricting in the absence of clear proof of discrimina-

tion against racial or ethnic minorities. Section 5 of the

Voting Rights Act, however, was enacted to provide a time-

7. Three judges of this Court have already expressed the view

that even in such circumstances the Attorney General, in passing

on the acceptability of voting changes under Section 5, should be

required to invoke its provisions only when he is able to make an

affirmative finding of discrimination rather than an ambivalent one.

See the dissents of Justice Powell, Relinquist and White in Georgia

v. United States, 411 U.S. 526, 545 (1973).

saving administrative device to prevent the state legisla-

tures from creating new discriminatory mechanisms to

nullify hard won litigation victories against voting dis-

crimination. The shifting of the burden ‘‘has resulted in

objections to many changes that could not have been ju-

dicially enjoined because the burden of proving discrim-

ination could not be met.’’ Derfner, Discrimination and

the Right to Vote, 26 Vanderbilt L. Rev., 523, 581 (1973).

It would be ironic if a finding, based on a standard of

proof which was devised merely to obtain a speedy deter-

mination of the limited question of whether a state must

go back to the drawing board in the drafting of voting

legislation, should be used as the factual basis for giving

judicial sanction to state enactments which purposefully

classify voters by race. It would be a gross distortion of

constitutional standards to permit a procedure such as this,

implemented by a determination such as the Attorney Gen-

eral issued in this case, to breach the barrier to legislative

redistricting by racial quota.

E. There Is No Relationship Between the “Remedy”

and the Violation Which Triggered Operation

of Section 5 of the Act.

The rationale permitting considerations of race to enter

into remedies designed to correct past discrimination re-

quires that the correction be intimately related to the par-

ticular violation and the harm it created. ‘‘[T]he nature

of the violation determines the scope of the remedy.”’

Milliken v. Bradley, 418 U.S. 717, 738 (1974) ; City of Rich-

mond v. United States, 95 S.Ct. 2296 (June 24, 1975). Here

no such relationship exists; the ‘‘foul’’ under the Voting

Rights Act which triggered the operation of Section 5

relied on by the Court of Appeals majority had nothing

to do with the type of legislative apportionment adopted

for Kings County in 1974 (510 F.2d at 517). Kings County

became subject to the approval requirements of Section 5

of the Voting Rights Act because (a) a literacy test had

been in effect on November 1968; (b) it had been found

that less than 50% of the persons of voting age were regis-

tered or had voted in November 1968; and (c) although

that literacy test was no longer in effect and New York

State had been viewed as being in full compliance with

the statute, a United States District Court had ruled that

New York had violated the Voting Rights Act because it

conducted an election with ballots in English only, a cir-

cumstance which did not affect voting by Blacks or repre-

sentation of Blacks.

The state legislative policy that shaped the 1974 statute

—compelled, the draftsmen believed by the Attorney-Gen-

eral’s guideline—was that the Black and Puerto Rican

minority viewed as a unitary bloc must have a substantial

majority in a specified number of legislative districts. This

consideration is totally unrelated to the evil that had

caused the Voting Rights Act to be invoked—the disen-

franchisement of non-English speaking voters through use

of English-only ballots.

The victims of this practice were the Spanish-speaking

minority alone, not the Blacks. Even assuming it were con-

stitutionally appropriate to correct the failure to print

ballots in Spanish by so incongruent a device as redrawing

district lines, the 1974 lines did not assure or even create

the potential of increased specific representation of the

Puerto Rican group. (See the Department’s Memorandum

of Decision, July 1, 1974, pp. 14-16.)

As the dissent below points out (510 F. 2d 512, 529 n. 4),

the Puerto Rican group viewed their electoral goals and

interests as different from those of Black voters. They

‘fresisted being submerged by Black minorities or plural-

ities to make nonwhite majorities’’ and sought separate

representation. Thus the ‘‘remedy’’ of drawing district

lines to give an artificially created ‘‘nonwhite”’ bloe work-

ing control of certain districts was no remedy at all. It

had no relationship to the injury suffered by the Puerto

Ricans as a result of the untranslated ballot. It did, how-

ever, give an unjustified preference, in certain newly-cre-

ated districts, to Black voters who had been neither injured

by a literacy test nor harmed by the English-only ballot.

The redrawing of district lines to give working control

to minorities does not effect a cure of the evil caused

by a literacy test or ballot infringement. That cure is

effected by the elimination of the improper test and the

printing of the ballot in the appropriate language. At that

point the disadvantage to the minority voter is remedied

and he can then go to the polls at the next election and

achieve the representation due him in the newly-elected

legislature.

In order to assure that the remedy is not nullified by

further subterfuge, the Voting Rights Act requires that

any changes in voting qualifications or procedures, inelud-

ing redistricting, must be approved by the Attorney Gen-

eral or the United States District Court ef the District of

Columbia. Nowhere, however, does that Act and its recent

hotly debated extension, require or even authorize, as a

remedy for any past possible underrepresentation which

may have resulted from literacy tests or English-only bal-

lots, the drawing of district lines to guarantee working con-

trol in particular districts to the minorities who might have

been affected by these devices. It is doubtful, to say the

least, that such a legislative mandate—and there is none—

could pass Constitutional muster.

Conclusion

For the foregoing reasons, we respectfully urge that

the judgment of the Court of Appeals be reversed and

New York’s 1974 reapportionment declared unconsti-

tutional under the Fourteenth and Fifteenth Amend-

ments.

Respectfully submitted,

WILL MAsLow

SHAD POLIER

Attorneys for

American Jewish Congress

Amicus Curiae

15 East 84th Street

New York, New York 10028

Larry M. LAVINSKY

ARNOLD FORSTER

Attorneys for

Anti-Defamation League of B'nai B'rith

Amicus Curiae

315 Lexington Avenue

New York, New York 10016

James LIPsIG

Attorney for

Jewish Labor Committee

Amicus Curiae

25 East 78th Street

New York, New York 10028

Lois WALDMAN

Of Counsel

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