NAACP v. New York Motion to Dismiss or Affirm

    Bnpnm  (Hour! nf %  llmtrii t̂atra
OCTOBER TERM, 1972

In the

No.

N ational A ssociation fob the A dvancement of Colobed 
P eople, N ew  Y obk City R egion of New  Y obk Con- 
febence of B banches, et al.,

Appellants-Applicants for Intervention,
v.

New  Y obk, on behalf of New York, Bronx, and 
Kings Counties,

Appellee.

National A ssociation fob the A dvancement of Colobed 
P eople, N ew  Y obk City R egion of N ew  Y obk Con- 
febence of B banches, et al.,

Appellants-Applicants for Intervention,
v.

U nited States of A meeica,
Appellee.

MOTION TO DISMISS OR AFFIRM

Louis J. L efkowitz 
Attorney General of the 

State of New York 
Attorney for Appellee, 

State of New York 
80 Centre St.

New York, N.Y. 10013
Samuel A. H ibshowitz 

First Assistant Attorney General
Geobge D. Zuckebman 

Assistant Attorney General
John G. Pboudfit 

Assistant Attorney General
Judith T. K bameb 

Deputy Assistant Attorney General



INDEX

PAGE

Statement.......................................................................... 2

Appellants have failed to establish that the Court be­
low abused its discretion in denying appellants’ 
motion to intervene or that their appeal presents 
a substantial federal question.................................  4

Conclusion ........................................................................  12

T able of A uthorities
Cases:

Allen Company v. National Cash Register Company,
322 TT.S. 137 ............................................................  6

Apache County v. United States, 256 F. Supp. 903
(D.D.C. 1966) ..........................................................  5

Camacho v. Rogers, 199 F. Supp. 155 (S.D.N.Y. 1961) 9
Cardona v. Powers, 384 U.S. 672 .................................  9
Gaston County v. United States, 288 F. Supp. 678

(D.D.C. 1968)............................................................  5
Gomillion v. Lightfoot, 364 U.S. 339 .........................  8
Lassiter v. Northampton County Board of Elections,

S.D.N.Y. 72 Civ. 1460 .............................................  9
Sierra Club v. Morton, 401 U.S. 907 ...........................  6
Socialist Worker Party v. Rockefeller, 314 F. Supp.

984 (S.D.N.Y. 1970) .................................................  9
South Carolina v. Katzenbach, 383 U.S. 3 0 1 .............. 9



n INDEX

Statutes:
page

42 USC § 1973(b) Section 4(a) of Voting Rights Act
of 1965 as amended by Public Law 91-285 .. 2, 4, 5, 7, 9

42 USC § 1973(c) Voting Rights Act of 1965 § 5 . .2, 5, 7, 9
Rule 24, Federal Rules of Civil Procedure . .............. 5, 6
New York State Constitution, Article I, § 1 .............. 2
New York Election Laws 150, 168 .........................  2



In the

irtp m ttp  Glmirt n f tltr llnxtvh States
OCTOBER TERM, 1972

--------------------♦--------------------
No.

---------------------- ♦----------------------

N ational A ssociation for the A dvancement of Colored 
P eople, N ew  Y ork City R egion of N ew  Y ork Con­
ference of B ranches, et al.,

Appellants-Applicants for Intervention,

v.

N ew  Y ork, on behalf of New York, Bronx, and 
Kangs Counties,

Appellee.

N ational A ssociation for the A dvancement of Colored 
P eople, N ew  Y ork City R egion of N ew  Y ork Con­
ference of B ranches, et al.,

Appellants-Applicants for Intervention,

v.

U nited States of A merica,
Appellee.

- ---------------------------------------------♦ ----------------------------------------------

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16 of the Revised Rules of this Court, 
appellee State of New York, on behalf of New York, Bronx 
and Kings Counties, moves to dismiss or affirm on the 
grounds that the questions presented by this appeal are 
not justiciable and/or are so unsubstantial as not to re­
quire further argument.



2

Statement

This action was commenced by the service of a complaint 
by the appellee State of New York on the appellee United 
States of America on December 3,1971.* The relief sought 
in the complaint was for a declaratory judgment under 
§4 (a ) of the Voting Rights Act of 1965, Public Law 89- 
1101, 70 Stat. 438, 42 U.S.C. 1973(b) as amended by 
Public Law 91-285, 94 Stat. 315, that during the ten preced­
ing years, the voting qualifications prescribed in the laws of 
New York did not deny or abridge the right to vote of any 
individual on account of race or color, and that the provi­
sions of §§ 4 and 5 of the Voting Rights Act were, therefore, 
inapplicable in the Counties of New York, Bronx, and Kings 
in the State of New York.

The aforementioned counties had come within the pur­
view of the Voting Rights Act, because of a determination 
made by the Bureau of Census that in 1968 less than 50% 
of the persons of voting age residing in those counties had 
voted in the Presidential election,** and since New York 
State, during the years prior to 1970, imposed a literacy 
requirement as a qualification for voting. N.Y. State 
Const. Art. II, § 1; N.Y. Election Law ^  150, 168.

On March 10, 1972 the United States filed an answer to 
the amended complaint which did not deny the allegations

* An amended complaint dated December 16, 1971 was subse­
quently filed.

** The percentage of the voting age population who voted for 
president in 1968 was determined by the Bureau of the Census to 
be 45.7% in New York County, 47.4% in Bronx County and 
46.4% in Kings County. When the number of voters who partici­
pated in the 1968 general election in New York but who did not 
vote for the office of president is added, the percentage of voting 
age population who voted in the 1968 election would be 47.7% in 
New York County, 49.6% in Bronx County and 48.5% in Kings 
County. Amended Compl., para. 14.



3

of said complaint except that with respect to a few specific 
allegations concerning the administration of the literacy 
test, the answer stated that defendant was without knowl­
edge or information sufficient to form a belief.

Subsequently, on March 17, 1972, the appellee New 
York moved for summary judgment. Appellees’ moving 
papers included an affidavit from Winsor A. Lott, chief 
of the Bureau of Elementary and Secondary Educational 
Testing of the New York State Education Department 
which annexed copies of all the literacy tests that were 
used during the years 1961 through 1969 and which at­
tested to the fact that less than 5% of the applicants who 
have taken these tests have failed. It was also estab­
lished that in 1968, less than 5% of the applicants who 
took the literacy test in each of the three affected coun­
ties failed. Amended Compl., para. 12, see also Exh. “ 1” 
to the answer of the defendant United States of America. 
Affidavits in support of the motion for summary judgment 
were also submitted by representatives of the Boards of 
Elections in each of the three affected counties attesting 
to the manner in which satisfaction of literacy was estab­
lished prior to 1970 when the literacy test was suspended, 
and attesting to registration drives that were conducted 
during the 1960’s, particularly in predominantly black and 
Puerto Rican areas of New York City seeldng to encourage 
minority members to register.

After a four-month investigation by attorneys from the 
Department of Justice which included an examination of 
registration records of selected persons in New York, 
Bronx and Kings Counties, interviews with election and 
registration officials and interviews with persons familiar 
with registration activity in black and Puerto Rican 
neighborhoods in those counties (Juris. State., p. 8a), an 
affidavit was filed on April 4, 1972 by David L. Norman, 
Assistant Attorney General in charge of the Civil Rights 
Division. The Norman affidavit stated that on the basis 
of that investigation conducted by the Department of



4

Justice “ there was no reason to believe that a literacy 
test has been used in the past 10 years in the counties of 
New York, Kings and Bronx with the purpose or effect 
of denying or abridging the right to vote on account of 
race or color, except for isolated instances which have 
been substantially corrected and which, under present 
practice cannot reoccur.” Accordingly, the United States 
consented to the entry of the declaratory judgment.

Although the nature of this action was public knowledge 
shortly after it was filed with the Department of Justice 
(an article concerning the nature of the action appeared 
in the New York Times on February 6, 1972), appellees 
did not move to intervene as defendants in this action 
until April 7, 1972. On April 11, 1972 appellee New York 
filed an affidavit and memorandum in opposition to the 
motion to intervene. On April 13, 1972 the three-judge 
federal court denied without opinion appellant’s motion 
to intervene and granted appellee New York’s motion for 
summary judgment.

On April 24, 1972 appellants moved to alter the prior 
judgment. The motion was denied on April 25, 1972. 
Thereafter appellants filed a notice of appeal with this 
Court with respect to the order denying this application 
to intervene on April 13, 1972 and the order denying 
their motion to alter judgment.

APPELLANTS HAVE FAILED TO ESTABLISH 
THAT THE COURT BELOW ABUSED ITS DIS­
CRETION IN DENYING APPELLANTS’ MO­
TION TO INTERVENE OR THAT THEIR 
APPEAL PRESENTS A SUBSTANTIAL FED­

ERAL QUESTION

Section 4(a) of the Voting Rights Act of 1965 and as 
amended by the Voting Rights Act of 1970 provides a state 
or subdivision with the right to request declaratory judg­



5

ment so that it may be exempted from the compliance re­
quirements of § 5. See cases cited in Gaston County v. 
United States, 288 F. Supp. 678, 679 n. 1 (D.D.C. 1968). 
The determination as to whether the test or device, which 
triggered the applicability of § 4, has been used to deny 
or abridge an individual’s right to vote on account of race 
or color rests with the United States District Court, al­
though the United States Attorney General may consent 
to the entry of such a judgment.

The Voting Rights Act “makes no express provision 
for intervention” , but “ rather contemplates that the At­
torney General will protect the public interest in defend­
ing section 4(a) actions.”  Apache County v. United States, 
256 F. Supp. 903, 906 (D.D.C. 1966). While there is no 
statutory or absolute right to intervene in ^4(a) actions, 
the district courts have recognized the right of private 
parties to seek permissive intervention pursuant to FRCP 
Rule 24(a)(2) where the requirements of that section have 
been satisfied and where the applicant for intervention 
can establish that the Attorney General has been derelict 
or deficient in protecting the public interest. But “ such 
intervention is not to be permitted except upon a strong 
showing.”  Apache County v. United States, supra, at 908.

Upon the record before it, the District Court had no 
choice other than to deny appellants’ motion for inter­
vention where (1) appellants did not establish that they 
had standing, (2) the motion was not timely and would 
have seriously disrupted New York’s electoral processes, 
(3) appellants have other adequate legal means of pro­
tecting their interests, and (4) where appellants failed 
to establish that the Justice Department had not ade­
quately protected the public interest or (5) that New York’s 
literacy test had denied any individual the right to vote 
on account of race or color.



6

Every one of the named individual appellants were and 
are duly registered voters in the State of New York. Ap­
pellants’ papers submitted to the District Court fail to 
establish how any of these individuals would be directly 
injured by the entry of the declaratory judgment in this 
action.

Since appellants are assuming that they have the same 
rights as the original parties in this action, they must be 
held to the same standards in determining whether they 
have proper standing. “ Mere concern without a more 
direct interest cannot constitute standing in the legal 
sense”  sufficient to challenge the exercise of responsibility 
of the Justice Department in this action. Sierra Club v. 
Morton, 401 U.S. 907.

(2)

Although the institution of this action was public knowl­
edge since the filing of a complaint on December 3, 1971 
and was mentioned in prominent newspaper articles (see 
New York Times, Feb. 6, 1972), appellants did not move 
to intervene until April 7, 1972. Appellants’ contention 
that it waited until the Justice Department’s defense was 
completed before seeking to intervene is a patently base­
less excuse for delay. I f such a contention were to be sus­
tained, it would require a plaintiff to win two separate 
rounds in every lawsuit: first against the named defend­
ant, and secondly against the intervenors who were watch­
ing from the sidelines until the defense’s case was com­
pleted.

In determining whether to exercise its discretion to per­
mit intervention, a district court must also consider 
“ whether the intervention will unduly delay or prejudice 
the adjudication of the rights of the original parties.”  
FRCP Rule 24 (b ); see Allen Company v. National Cash 
Register Company, 322 U.S. 137.

(1)



7

The granting of appellants’ motion to intervene at the 
time it was brought would have seriously disrupted New 
York’s electoral process. A  legislative redistricting 
statute providing for new assembly and senate districts 
in the State of New York based on 1970 census figures 
was enacted in January, 1972 and new congressional dis­
tricts were provided by a statute enacted in March, 1972.* 
The State of New York was aware of the fact that a 
detailed Justice Department investigation into the con­
sequences of each of the new assembly, senate and con­
gressional lines in three large counties within New York 
City might require several months to complete which would 
have prevented the use of the new district lines in the 
Spring, 1972 primary elections. Since there was no ques­
tion that the filing requirements of $ 5 of the Voting Rights 
Act were due to the statistical presumptions imposed by 
§4  rather than by any evidence that New York’s literacy 
test had discriminated against any individual by reason 
of race or color, the present lawsuit was instituted to 
prevent any delay in having the legislative and congres­
sional districts at stake in the 1972 elections governed 
by 1970 census figures.

The delay sought by appellants’ belated intervention 
would have unquestionably resulted in the holding of 
primary and general elections in New York State based 
on population figures that were 12 years out of date.

( 3)
The denial by the District Court of appellants’ motion 

for intervention has not prevented them from their pur­
portedly ultimate objective of protecting the voting rights 
of black citizens. I f they believe that any of the new

* Correct 1970 census figures for the State of New York were 
not supplied to the New York Joint Legislative Committee on Re­
apportionment by the United States Bureau of the Census until 
October 15, 1971.



8

assembly, senate or congressional district lines were the 
product of racial discrimination and violative of the 
Fourteenth and/or Fifteenth Amendments they may seek 
remedial relief in a civil rights action in one of the federal 
district courts in the State of New York. Cf. Gomillion v. 
Lightfoot, 364 U.S. 339. Indeed, there is no reason why 
appellants could not have amended their present action in 
the Southern District of New York (NAACP v. New York 
City Board of Elections, 72 Civ. 1460) to seek such relief 
unless their reluctance to do so results from a lack of 
evidence to support such charges.

(4 )
Appellants have failed to sustain their heavy burden of 

proof of showing that the Justice Department was 
derelict or deficient in protecting the public interest in its 
defense of this action. Cf. Apache County v. United States, 
supra.

The Justice Department conducted a four-month investi­
gation into the allegations of the complaint before con­
senting to the entry of a declaratory judgment. As noted 
in the affidavit of the Assistant Attorney General in charge 
of the Civil Rights Division (Juris. State. 8a-lla), 
attorneys from the Department of Justice examined regis­
tration records of selected persons in each covered county, 
conducted interviews with election and registration officials 
and interviews with persons familiar with registration 
activity in black and Puerto Rican neighborhoods in those 
counties. In answer to the Justice Department’s request, 
the Board of Elections supplied the Department with 
selected election districts in each of the three affected 
counties that were predominantly white, predominantly 
black, predominantly Puerto Rican and districts that 
contained mixed populations. The Justice Department was 
unable to uncover any evidence that would indicate that 
the predominantly black or Puerto Rican districts suffered



9

as a result of the imposition of English language literacy 
tests or were treated any differently than predominantly 
white election districts.

If appellants were in possession of any evidence that 
individuals were subjected to discrimination by reason of 
their race or color in the conduct of the literacy tests, 
they could have presented such evidence to the Justice 
Department. None of appellants’ papers indicate that 
they are in possession of such evidence.

(5 )
Certainly, the mere fact that New York imposed an 

English literacy requirement cannot be cited as evidence 
of racial discrimination. The right of a state to impose 
an English literacy requirement has been sustained by 
this Court. Lassiter v. Northampton County Board of 
Elections, 360 U.S. 45. Although New York’s literacy re­
quirements may no longer be enforced to the extent that 
they are inconsistent with 42 USC $ 1973(b)(c), courts 
have refused to declare that New York’s literacy require­
ments constituted a denial of equal protection. Camacho 
v. Rogers, 199 F. Supp. 155 (S.D.N.Y. 1961); Socialist 
Worker Party v. Rockefeller, 314 F. Supp. 984, 999 
(S.D.N.Y., 1970); Cardona v. Power, 384 U.S. 672.

It may be remembered that when South Carolina at­
tacked the constitutionality of the 1965 Voting Bights Act 
on the grounds that § 4 actions would place an impossible 
burden of proof upon states and political subdivisions, 
this Court noted that the Attorney General had pointed 
out during hearings on the Act that “ an area need do no 
more than submit affidavits from voting officials, asserting 
that they have not been guilty of racial discrimination 
through the use of tests and devices during the past five 
years, and then refute whatever evidence to the contrary 
may be adduced by the Federal Government.”  South 
Carolina v. Katzenbach, 383 U.S. 301, 332.



10

The State of New York clearly met its burden entitling 
it to a declaratory judgment.

The affidavit of Winsor A. Lott, which contains copies 
of all literacy tests that were given by the State of New 
York from 1961 to 1969 shows that the literacy tests con­
sisted of a short paragraph in simple English followed by 
eight questions which could be answered in one or a few 
words. The answers were found in the paragraph. No 
outside knowledge was required. The tests were distrib­
uted with corresponding answer keys geared to minimize 
the discretion of the graders. Anyone with a minimal 
amount of English comprehension should have been able 
to pass the test. The evidence established that over 95% 
of the applicants each year who took the literacy test 
passed it throughout the State and in each of the three 
affected counties.

The failure of any person to register and vote in the 
Counties of New York, Bronx and Kings is and was in 
no way related to any purpose or intent on the part of 
the officials of those counties or the State of New York 
to deny or abridge the right of any person to vote on 
account of race or color.

Indeed, the named counties have in the past actively 
encouraged the full participation by all of its citizens in 
the affairs of government.

Central registration takes place throughout the year at 
the Board of Elections. Local registrations are also con­
ducted every October for a three or four day period. In 
each county in New York City and in each election district 
in each county are polling places designated for local reg­
istration. See affidavit of Alexander Bassett, sworn to 
March 16, 1972, p. 3.

To further expand the number of registrants in New 
York, since 1966, if the prospective registrant demonstrated



11

by certificate, diploma or affidavit that be had completed 
the sixth grade in a public school in, or private school 
accredited by any State of the Commonwealth of Puerto 
Bico, in which the pre-administrative language was Span­
ish, he was permitted to register without proof of literacy 
in English. July 28, 1966, Op. Atty. Gen., 121. The At­
torney General of New York set forth guidelines recom­
mending that the affidavits be printed in English and 
Spanish to avoid language difficulties. In 1967, this became 
the practice (See affidavit of Bassett, supra, p. 2).

Moreover, beginning in 1964, New York City embarked 
upon an intensive effort to gather new voters at consid­
erable expense. Every year since, except 1967, the Board 
of Elections has sponsored summer registration drives to 
encourage more people to register. In 1964, registrations 
were conducted in local firehouses throughout the City 
(Affidavit of Beatrice Berger, sworn to March 17, 1972). In 
1965, mobile units were sent out into very populated areas 
containing a high density of blacks. Thereafter, local 
branches of the Board of Elections were set up throughout 
the City. These branches were specifically set up also in 
areas with a high population of black residents. With 
each new voter registration drive came a waive of pub­
licity in the news media requesting citizens to register 
(Berger affidavit, p. 2).

Thus, far from discriminating against new voters by 
reason of race or color, the State of New York has actively 
sought to encourage members of minority groups to regis­
ter and vote.



12

CONCLUSION
For the foregoing reasons, the within motion to dis­

miss or affirm should be granted.

Dated: New York, New York, August 21, 1972.

Respectfully submitted,

Louis J. L eekowitz 
Attorney General of the 

State of New York 
Attorney for Appellee, 

State of New York

Samuel A. H irshowitz 
First Assistant Attorney General

George D. Z uckerman 
Assistant Attorney General

John G. Proudfit 
Assistant Attorney General

J udith T. K ramer 
Deputy Assistant Attorney General



(52103)