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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 144

## Text

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,
v.

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

11

14

15

19
22

I!

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

IV

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,
v.

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-

2

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

3

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).

4

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

5)

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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).

13

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)

14

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. ;

15

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

16

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

17

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,

18

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).

19

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

20

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

21

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

22

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2106%3A14. Public record. Not legal advice.