United Jewish Organizations of Williamsburg Inc. v. Carey Brief for Respondents-Intervenors

    I n  t h e

©Hurt nf tl][̂  WxxUh
October Term, 1975 

No. 75-104

U n it e d  J e w ish  Obganizatio ns of

WlHLIAMSBUEGH, I n C., et ol.,
Petitioners,

V.

H hgh L. Caret, et at.

on  w rit  oe certiorari to t h e

UNITED STATES COURT OF APPEALS FOB THE SECOND CIRCUIT

BRIEF FOR RESPONDENTS-INTERVENORS

J ack  Greenberg  
E ric S c h n a ppee  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Bespondents-Intervenors

L o uis  H . P ollak

3400 Chestnut Street 
Philadelphia, Pa. 19174

Of Counsel



I N D E X

PAGE

Question Presented ........................................................... 1

Statutes and Eegulations Involved ................................  1

Summary of A rgum ent.....................................................  5

Introduction........................................................................  8
A. Application of the Voting Eights Act to New

Y ork ........................................................................  9

B. Purpose of the Voting Eights Act ....................  11

C. Decision of the Attorney General ......................  20

D. Absence of Discriminatory Effect ......................  25

E. The Canse of the Alleged In q u iry ......................  28

A r g u m en t  ............................................................................ 32

I. The New York Legislature Was Obliged to Take 
Into Account the Eacial Composition of the Af­
fected Districts in Drawing the 1974 District 
Lines ............................................................................  32

II. The Decision of the Attorney General Was Law- 
fnl and Eequired New York to Eemedy the Mini­
mization of Minority Voting Strength Which 
Tainted the 1972 District Lines ............................  37

III. The 1974 District Lines Were An Appropriate
Eemedy ..........................................   45

C o nc lu sio n  .......................................................................... 49



11

T able of A u th o r ities

Cases: page

Allen V. State Board of Elections, 393 U.S. 544 (1969)
39,42

Beer v. United States, No. 73-1869 .......................-.........  26
Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir. 1973) .............  32
Boston NAACP v. Beecher, 504 F.2d 1017 (1st Cir.

1974) ...................     32
Brooks V. Beto, 366 F.2d 1 (5th Cir. 1966) ..................  32

Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971) ........ 41
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) ....... 32
Castro V. Beecher, 459 F.2d 725 (1st Cir. 1972) ......... 32
Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir.

1972) ........................ -....... ..... -............................. - ........  44
City of Petersburg v. United States, 410 U.S. 962

(1973) ...................................   19,26,33,40,41
City of Richmond v. United States, 422 U.S. 358

(1975) ...........................................................26,33,36,40,49
Coalition for Education v. Board of Elections, 370

F.Supp. 42 (S.D.N.Y. 1974) ......    44

Gaston County v. United States, 395 U.S. 285 (1969) .... 11 
Gautreaux v. Romney, 488 F.2d 731 (7th Cir. 1971) .... 32
Georgia v. United States, 411 U.S. 526 (1973).......7,33,38,

39, 42,50
Gray v. Sanders, 372 U.S. 368 (1963) .............................. 41

H art V. Community School Board, 383 F.Supp. 699
(E.D.N.Y. 1974) ...........................................     44

Heyward v. Public Housing Administration, 238 F.2d
689 (5th Cir. 1956) ......... ..a.... ....................... ............... 32

Hobson V. Hansen, 269 F.Supp. 401 (D.D.C. 1967) .... 41



I l l

PAGE

Kennedy Park Homes Ass’n v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970) .........................................  32

Keyes v. School District No. 1, 413 U.S. 189 (1973) .... 44

Linda E. S. v. Eichard D., 410 U.S. 614 (1973) ........... 31

Morrow v. Crisler, 491 F2d. 1053 (5th Cir. 1974) ........... 32

NAACP V. Allen, 493 F.2d 614 (5th Cir. 1974) ........... 32
NAACP V. New York, 413 U.S. 345 (1973) ...........10,11, 44
New York v. United States, 419 U.S. 888 (1974) .......  11
New York v. United States, Civ. No. 2419-71 (D.D.C.) 10
North Carolina Board of Education v. Swann, 402 U.S.

43 (1974)...................................................................... 32, 34
Norwalk COEE v. Norwalk Eedevelopment Area, 395 

F.2d 920 (2d Cir. 1968) .................................................  41

Oregon v. Mitchell, 410 U.S. 112 (1970) ................... . 20
Otero V. New York City Housing Authority, 484 F.2d 

1122 (2d Cir. 1973) ........................................................  32

Patterson v. Newspaper and Mail Deliverers’ Union,
514 F.2d 767 (2d Cir. 1975) .........................................  44

Eailway Mail Association v. Corsi, 326 U.S. 88 (1945) 50
Eios V. Enterprise Association Steamfitters, 501 F.2d

622 (2d Cir. 1974) ........................................................  44
Eosario v. Eockefeller, 410 U.S. 752 (1973) ..................  46

South Carolina v. Katzenbach, 382 U.S. 301 (1966) .... 38 
Swann v. Charlotte-Mecklenhurg Board of Education,

402 U.S. 1 (1971) ............................................................  32

Torres v. Sachs, 381 F.Supp. 309 (S.D.N.Y. 1974) ....... 11



IV

PAGE

United States v. Montgomery County Board of Edu­
cation, 395 U.S. 225 (1969) ........................................32-33

Vulcan Society v. Civil Service Commission, 490 F.2d 
387 (2d Cir. 1973) ................       32,44

White V. Regester, 412 U.S. 755 (1973) ...... .......26,27,28,41
W right V. Council of City of Emporia, 407 U.S. 451 

(1972) ..............................................................................  41

Statutes and Regulations:

42 U.S.C. § 1973b, section 4 of the Voting Rights 
Act .............................................................................. 9,10,12

42 U.S.C. § 1973c, section 5 of the Voting Rights 
Act .............................................................................. passim

79 Stat. 438 ........................................................................  9

Chapters 588, et seq.. New York Laws, 1974................... 1

28 C.P.R. § 51.10 ..................................................... 3, 7, 33,45

28 C.E.R. §51.12 ............................................................... 20

28 C.F.R. §51.19 ......................................................... 5,38,40

Legislative Materials:

115 Cong. Rec. (1969) .....................................................  13

116 Cong. Rec. (1970) ..........................................9,10,12,13

121 Cong. Rec. (1975) ............................................13,14,15,
16,18,19, 42

S. Rep. No. 94-295 ....................................13,14,16,17,18,38

H. R. Rep. No. 94-196 ..............................13,14,16,17,18, 38



V

PAGE

Hearings Before a Subcommittee of tbe Senate Judi­
ciary Committee, 94th Cong., 1st Sess. (1975) ....14,15,16,

17,18, 35, 38, 40,41

Hearings Before a Subcommittee of the House Judi­
ciary Committee, 94th Cong., 1st Sess. (1975) ....14,15,16,

17,18,19,26, 38,41

Hearings Before the Subcommittee on Constitutional 
Rights of the Senate Committee on the Judiciary on 
Bills to Amend the Voting Rights Act, 91st Cong.,
1st and 2d Sess. (1969-70) .........................................  13

Hearings Before Subcommittee No. 5 of the House 
Committee on the Judiciary on H.R. 4249, 91st Cong.,
1st Sess. (1969) ............................................................. 13

Other Authorities:

United States Commission on Civil Rights, The Voting 
Rights A ct: Ten Years After (1975) .......14,15,16,18, 22

United States Commission on Civil Rights, Political 
Participation (1968) .....................................................  12

New York Times, January 5, 1974 .................................. 21



I n  t h e

(Eourt nf tl|̂  MnlUh
October Term, 1975 

No. 75-104

U n ited  J e w ish  Organizations of 
W il lia m sb h e g h , I n c ., et al.,

Petitioners,

H u g h  L. Carey , et al.

ON WRIT OF certiorari TO THE 
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENTS-INTERVENORS

Question Presented
Are Chapters 588, 589, 590, 591 and 599 of the New York 

Laws of 1974, insofar as they altered the Senate and As­
sembly district lines in Kings County, unconstitutional!

Statutes and Regulations Involved

Section 5 of the Voting Rights Act, 42 U.S.C. §1973c, 
provides in pertinent part:

Whenever . . .  a State or political subdivision with 
respect to which the prohibitions set forth in section



1973b(a) of this title based upon determinations made 
under the second sentence of section 1973b (b) of this 
title are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or stan­
dard, practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1968, . . . such State or subdivision may institute an 
action in the United States District Court for the Dis­
trict of Columbia for a declaratory judgment that such 
qualification, prerequisite, standard, practice, or pro­
cedure does not have the purpose and will not have 
the effect of denying or abridging the right to vote on 
account of race or color, and unless and until the court 
enters such judgment no person shall be denied the 
right to vote for failure to comply with such qualifica­
tion, prerequisite, standard, practice, or procedure: 
Provided, That such qualification, prerequisite, stan­
dard, practice, or procedure may be enforced without 
such proceeding if the qualification, prerequisite, stan­
dard, practice, or procedure has been submitted by the 
chief legal officer or other appropriate official of such 
State or subdivision to the Attorney General and the 
Attorney General has not interposed an objection 
within sixty days after such submission, except that 
neither the Attorney General’s failure to object nor 
a declaratory judgment entered under this section 
shall bar a subsequent action to enjoin enforcement of 
such qualification, prerequisite, standard, practice, or 
procedure. Any action under this section shall be 
heard and determined by a court of three judges in 
accordance with the provisions of section 2284 of Title 
28 and any appeal shall lie to the Supreme Court.



Section 51.10, 28 C.F.E., provides in pertinent part:

(a) Each submission shall include:
*  *  •

(6) With respect to redistricting, annexation, and 
other complex changes, other information which the 
Attorney General determines is required to enable 
him to evaluate the purpose or effect of the change. 
Such other information may include items listed under 
paragraph (b) of this section. When such other in­
formation is required, the Attorney General shall 
notify the submitting authority in the manner pro­
vided in § 51.18(a).

(b) In addition to the requirements listed in para­
graph (a) of this section, each submission may in­
clude appropriate supporting materials to assist the 
Attorney General in his consideration. The Attorney 
General strongly urges the submitting authority to in­
clude the following information insofar as it is avail­
able and relevant to the specific change submitted for 
consideration:

(5) Where any change is made that revises the con­
stituency which elects any office or affects the boun­
daries of any geographic unit or units defined or em­
ployed for voting purposes (e.g., redistricting, annex­
ation, change from district to at-large elections) or 
changes the location of a polling place or place of reg­
istration, a map of the area to he affected showing 
the following:

(i) The existing boundaries of the voting unit or 
units sought to he changed.

(ii) The boundaries of the voting unit or units 
sought by the change.



4

(iii) Any other changes in the voting unit boun­
daries or in the geographical makeup of the constitu­
ency since the time that coverage under section 4 be­
gan. If  such changes have already been submitted the 
submitting authority may refer to the date of the 
prior submission and identify the previously submitted 
changes.

(iv) Population distribution by race within the 
existing units.

(v) Population distribution by race within the pro­
posed units.

(vi) Any natural boundaries or geographical fea­
tures which influenced the selection of boundaries of 
any unit defined or proopsed for the new voting units.

(vii) Location of polling places.

(6) Population information; (i) Population before 
and after the change, by race, of the area or areas to 
he affected by the change. If such information is con­
tained in the publications of the U.S. Bureau of the 
Census, a statement to that effect may he included.

(ii) Voting-age population and the number of reg­
istered voters before and after the change, by race, 
for the area to be affected by the change. If such in­
formation is contained in the publications of the U.S. 
Bureau of the Census, a statement to that effect may 
be included.

(iii) Copies of any population estimates, by race, 
made in connection with adoption of the proposed 
change, preparation of the submission or in support 
thereof and the basis for such estimates.

(iv) Where a particular office or particular offices 
are involved, a history of the number of candidates.



by race, wbo have run for such office in the last two 
elections and the results of such elections.

Section 51.19, 28 C.F.R. provides:

Section 5, in providing for submission to the A ttor­
ney General as an alternative to seeking a declaratory 
judgment from the U.S. District Court for the District 
of Columbia, imposes on the Attorney General what is 
essentially a judicial function. Therefore, the burden 
of proof on the submitting authority is the same in sub­
mitting changes to the Attorney General as it would 
be in submitting changes to the District Court for the 
District of Columbia. The Attorney General shall base 
his decision on a review of material presented by the 
submitting authority, relevant information provided by 
individuals or groups, and the results of any investi­
gation conducted by the Department of Justice. If the 
Attorney General is satisfied that the submitted change 
does not have a racially discriminatory purpose or 
effect, he will not object to the change and will so notify 
the submitting authority. If the Attorney General de­
termines that the submitted change has a racially dis­
criminatory purpose or effect, he will enter an objection 
and will so notify the submitting authority. If the 
evidence as to the purpose or effect of the change is 
conflicting, and the Attorney General is unable to re­
solve the conflict within the 60-day period, he shall, 
consistent with the above-described burden of proof 
applicable in the District Court, enter an objection and 
so notify the submitting authority.

Summary of Argument

In renewing the Voting Eights Act in 1970 and 1975 
Congress was particularly concerned with the effect of



section 5 on redistricting in covered jurisdictions. The type 
of districting configuration which section 5 prohibits is the 
fragmentation of much or all of a non-white community 
among majority white districts. Congress concluded that 
such fragmentation generally precluded the election of non­
white officials and diluted the value of minority votes.

The 1972 district lines in Kings County minimized minor­
ity voting strength in the manner which section 5 was 
adopted to prevent. Although the non-white community in 
Kings County is concentrated in a single contiguous ghetto 
in and around Bedford Stuyvesant, the bulk of that com­
munity was divided into small pieces and placed in major­
ity white districts. Because of white bloc voting every one 
of these districts, and every other predominantly white 
Senate and Assembly district in New York City, was and 
is represented by a white. These lines clearly had the dis­
criminatory effect forbidden by section 5, and were prop­
erly disapproved by the Attorney General.

The 1971 lines adopted after the Attorney General’s 
decision were not unfair to whites. Although the lines 
resulted in five new districts with non-white majorities, 
white candidates were elected in four of these districts. 
The prc>portion of Senate and Assembly districts with non- 
white majorities was still significantly smaller than the 
prierortioii of the County population that is non-white.

The s*>ie injury of which petitioners complain is that the 
H assific cestimurity has been divided between two Assem- 
biy htstriccs and between two Senate districts; petitioners 
have nt .'cjeeti*xt to beinn in a nredotnittantlv non-white
r-strtr: so -cnr as taerr connmnnttv remains tntaet. e t i -
■Dtaers allege that the so*c reason their cvirnmnnity was 
A-rjied was that the division was necessary to create one 
tc "mire ncesdoir^Taxthc non-wbi?c districts. The reccr-A



however, shows that this was not the actual cause of the 
division of the Hassidic community. See pp. 28-31, infra.

When New York fashioned the 1974 lines it was clearly 
obligated to consider the racial composition of the proposed 
lines. The Attorney General was required to consider that 
information in assessing whether the proposed 1974 lines 
were still discriminatory, and New York was required to 
provide that information to him. 28 C.F.E. §51.10. I t would 
have been impossible to determine whether the 1974 lines 
unlawfully fragmented the non-white community into pre­
dominantly white districts without knowing the racial com­
position of the districts involved. I t  would have been ir­
responsible for New York to have adopted district plans at 
random, i.e. ignoring the racial composition of the pro­
posed districts, until it stumbled across one which was free 
of such a discriminatory effect.

The Attorney General’s decision objecting to the 1972 
lines was correct, and petitioners concede they are not en­
titled to challenge it on the merits. Although petitioners 
object that the Attorney General rejected the lines because 
New York had not proved they were not discriminatory, the 
regulations placing the burden of proof on the submitting 
authority were upheld by this Court in Georgia v. United 
States, 411 U.S. 526 (1973). I t is of no import that the 
Attorney General made no finding as to the purpose of the 
1972 lines, since section 5 forbids the use of lines with a 
discriminatory effect regardless of their purpose.

In assessing the impact of the 1974 lines New York and 
the Attorney General needed to know whether the majority 
of each district’s eligible voting age population was white 
or non-white. Because of several problems with the Oeivsus 
data, however, it was not possible to determine direetlv and



8

accurately what portion of the eligible voting age population 
is white and what portion is non-white. The actual Census 
data used by the legislature was unadjusted “February 
Formula” figures. Because of several factors a district 
with a February Formula non-white total population of 
65% is one in which the white and non-white eligible voting 
age population are approximately equal. Regardless of 
whether, as is unclear on the face of the record, New York 
used this particular method to determine the eligible voting 
age population of proposed districts, some such method was 
required in order to comply with section 5.

Introduction

As the grant of certiorari signifies, this litigation is im­
portant. I t  is important to the people of Brooklyn, and to 
the integrity of the electoral process in the State of New 
York. I t is important to the full realization of the constitu­
tional mandate of “one man, one vote.” And it is important 
to the full implementation—by the Attorney General of the 
United States and by the legislatures of the several states, 
including New York—of the Voting Rights Act of 1965, and 
of the Fourteenth and Fifteenth Amendments, which that 
Act enforces.

The legal issues on which this litigation turns are signifi­
cant, but they are not as complex or as wide-ranging in 
constitutional implication as they have been made to appear 
by petitioners’ brief and certain of the briefs amici. As 
this litigation has moved upwards to this Court, it has 
acquired an overlay of doctrinal portentousness and am­
biguity unsupported by the particular facts which have 
given rise to this case or by its particular procedural pos­
ture. Properly understood, this case does not require— 
indeed it does not warrant—present resolution of huge



abstract constitutional issues wMcb lie far beyond tbe con­
fines of the actual controversy now before this Court. With 
a view to focusing this Court’s attention on tbe actual con­
troversy, and on the legal issues necessarily implicated 
by that controversy, we have thought it useful to present 
a detailed Introduction. What follows is intended to set 
forth in detail the factual background and foreground of 
this controversy in the context of the purpose of the Voting 
Eights Act.

A. Application o f the Voting Rights Act to New York

This case has its origins in the 1970 amendments to the 
Voting Eights Act of 1965. As originally enacted, sections 
4 and 5 of the Act applied only to states or subdivisions 
which, as of November 1, 1964, maintained a literacy test 
or other test or device and in which, as of the presidential 
election of 1964, less than 50% of the voting age popula­
tion registered or voted. 79 Stat. 438, 439. When the Act 
came up for renewal in 1970, Congress found that in 1968 
the registration or voting rate had fallen below 50% in 
several other jurisdictions, most notably Kings, New York 
and Bronx Counties in New York.^ Congress concluded 
this low rate in New York was the result of New York’s 
literacy test, which was believed to discriminate against 
black voters who had received an inferior education in 
segregated schools in both the north and south.^ Concern 
was also expressed that New York’s literacy test had de­
terred blacks from seeking to register® and had been

 ̂116 Cong. Rec. 7654, 6659 (Remarks of Senator Cooper) 
(1970).

^116 Cong. Rec. 5533 (Remarks of Senator Ilruska), 6158-59 
(Remarks of Senators Dole and Mitchell), 6661 (Remarks of Sen­
ator GrifSn) (1970).

® 116 Cong. Rec. 5533 (Remarks of Senator Ilruska), 6152 (Re­
marks of Senator Eastland) (1970).



10

adopted for the purpose of discriminating on the basis of 
race.^ See NAACP  v. New York, 413 U.S. 345, 370 (1973) 
(Douglas, J., dissenting). Because of these circumstances 
Congress altered the coverage formula of sections 4 and 5 
so as to apply them to the three counties in New York, 
which were “a definite target of the 1970 amendments.” 
NAACP  V. New York, 413 U.S. 345, 357 (1973).

In December 1971 the State of New York instituted an 
action in the District Court for the District of Columbia 
under section 4(a) of the Voting Eights Act, 42 U.S.C. 
§1973b(a), seeking a declaratory judgment that would 
exempt New York from provisions of the Act. On April 
3, 1972, the United States consented to entry of summary 
judgment in that case. Four days later the NAACP and 
certain individuals requested leave to intervene.® The mo­
tion to intervene was denied, and summary judgment was 
granted awarding the exemption. New York v. United 
States, Civ. No. 2419-71 (D. D. C.) (unreported). On ap­
peal this Court held that the denial of intervention in 
April 1971 was not improper because the applicants “were 
free to renew their motion to intervene following the entry 
of summary judgment since the District Court was re­
quired under §4(a) of the Act, 42 U.S.C. §1973b(a) to 
retain jurisdiction for five years after judgment.” NAACP  
V. New York, 413 U.S. 345, 368 (1973). On remand, the 
applicants renewed their motion to intervene, which was 
granted on November 5, 1973.

On January 4, 1974, the district court rescinded the 
exemption pendente lite, and New York thereafter sub­
mitted its 1972 redistricting plan to the Attorney General

* 116 Cong. Eec. 6659 (Remarks of Senator Murphy), 6660 
(Remarks of Senator Cooper) (1970).

'  The intervenors-respondents in this action are the same group 
and individuals who intervened in New York v. United States.



11

for approval under section 5 of the Voting Eights Act. 
On April 25, 1974, the intervenors moved for summary 
judgment permanently denying the exemption sought by 
New York.® Intervenors maintained, inter alia, that New 
York’s literacy test had the effect of discriminating against 
blacks because the rate of illiteracy among blacks was two 
to three times as high as among whites.’ Intervenors con­
tended that this difference in literacy rates was due to 
discrimination in the New York City school system. See 
Gaston County v. United States, 395 U.S. 285 (1969). The 
evidence demonstrated that predominantly non-white 
schools were inferior in numerous respects: the teachers 
had less training, the buildings were older and had fewer 
facilities, per capita expenditures were lower, class sizes 
were greater, special classes were less common and over­
crowding more frequent.® On April 30, 1974, the district 
court granted intervenors’ motion for summary judgment. 
This Court affirmed. 419 U.S. 888 (1974).

B. The Purpose o f the Voting Rights Act

The 1972 district lines presented precisely the type of 
discriminatory effect which the Voting Eights Act was 
adopted to prevent.

The Voting Eights Act of 1965 abolished a variety of 
tests and devices which had theretofore been employed to 
prevent the registration of non-white voters, and autho­
rized the use of federal registrars where local officials

® The United States, which had earlier moved to reopen the case 
because of Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974), did 
not itself move for summary judgment or support intervenors’ 
motion therefor.

’ See Motion to Affirm of Intervenors-Appellees, No. 73-1740, 
pp. 12, 2a-3a.

 ̂Id., pp. 10-11, 7a-9a. A portion of the documentary evidence 
involved is set out in the Appendix in No. 72-129, NAACP v. New 
York, pp. 93a-116a.



12

continued to refuse to register blacks or other minority- 
groups. 42 U.S.C. § 1973b(a). But Congress recognized 
that even if non--wMtes were able to register and vote, elec­
tion laws could be so fashioned as to harness white bloc 
voting to prevent the election of minority candidates. Con­
gress was well aware that there were virtually no non­
white elected officials in the jurisdictions covered by section 
5, and that, in the absence of meaningful minority political 
strength, some white officials in those jurisdictions had in 
the past been openly indifferent to the interests of their 
non-white constituents. Congress therefore provided in 
1965 that any new election laws adopted in covered ju r­
isdictions would be subject to prior federal scrutiny under 
section 5 of the Voting Rights Act, in order to assure that 
such laws did not have the purpose or effect of vitiating 
minority voting strength.

In 1970, when Congress was considering renewing the 
Voting Eights Act for another five years, the application 
of section 5 to redistricting had become a major concern. 
The United States Commission on Civil Rights reported to 
Congress that, in the face of increasing minority registra­
tion, a number of jurisdictions had redrawn their district 
lines so that they “aggregated predominantly Negro coun­
ties with predominantly white counties [thus] preventing 
election of Negroes”.® The effect of these lines was to 
divide up a predominantly black area and place the frag­
ments in districts with white majorities.^® During both the 
House and Senate hearings witnesses testified that the 
value of the newly won minority vote had been frequently 
diluted by district lines whicli “divide concentrations of

® United States Commission on Civil Rights, Political Participa­
tion, p. 177 (1968).

Id., pp. 31, 34-35. Congress expressly relied on this report in 
deciding to extend the Act. 116 Cong. Rec. 5521, 5526 (1970).



13

Negro voting strength” and thus “nullify local black ma­
jorities.” During the House and Senate debates repeated 
concern was expressed that the value of minority votes 
would be diluted by submerging them in districts with white 
majorities.^^

By 1975 the most important impact of section 5 was on 
redistricting. During the years in which the Act had been 
in effect more than one-third of all the Attorney General’s 
objections'^ were to redistricting; 58 plans in 9 states had 
been disapproved under section 5. Former Attorney Gen­
eral Katzenbach testified in 1975, “Section 5 has had its 
broadest impact . . .  in the areas of redistricting and re­
apportionment. A substantial majority of the objections 
have been directed at this type of change. A redistricting 
plan or election system can be arranged so that a black 
candidate will have little chance of winning even with the 
full support of the black community. . . . Objections to this 
type of change, more than any other, have allowed blacks

Hearings before Subcommittee No. 5 of the House Committee 
on the Judiciary on H.E. 4249, 91st Cong., 1st Sess., pp. 3, 17 
(1969) ; Hearings before the Subcommittee on Constitutional 
Rights of the Senate Committee on the Judiciary on Bills to Amend 
the Voting Rights Act, 91st Cong., 1st and 2d Sess., p. 47 (1969- 
70).

1̂  115 Cong. Ree. 38486 (Remarks of Rep. McCulloch); 116 Cong. 
Ree. 5520-21 (Remarks of Senator Scott), 5527 (Remarks of Sen­
ator Scott), 6168 (Remarks of Senator Scott), 6358 (Remarks of 
Senator Bayh) (1970).

13 S. Rep. No. 94-295, p. 18; H. R. Rep. No. 94-196, p. 10; 121 
Cong. Ree. S 13401 (Remarks of Sen. Tunney) (Daily ed., July 23, 
1975) ; Rec. S 13669 (Remarks of Senator Kennedy (Daily Ed., 
July 24, 1975) ; Hearing Before a Subcommittee of the Senate 
Judiciary Committee, 94th Cong., 1st Sess., 95 (Statement of Frank 
Parker), 582 (Statement of J. Stanley Pottinger) 121 Cong. Rec. 
S 13669 (Remarks of Senator Kennedy) (Daily Ed. July 24, 
1975) ; Hearings Before a Subcommittee of the House Judiciary 
Committee, 94th Cong., 1st Sess., 170 (Statement of J. Stanley 
Pottinger) (1975).



14

to achieve a greater measure of political self-determina­
tion.” The Commission on Civil Rights, in an extensive 
report to Congress, stressed the large number of instances 
in which the application of section 5 had prevented the use 
of district lines which would have had the effect of discrimi­
nating on the basis of race.“  Congress concluded that such 
redistricting had become the major tactic for effectively 
disenfranchising non-whites.^®

The testimony before both House and Senate Committees 
revealed that discriminatory plans took two forms: (1) 
the minority community was divided among several pre­
dominantly white districts or, (2) where this was not pos­
sible because of the large number of minority voters, a 
single overwhelmingly non-white district was created and 
the remaining non-white voters divided among predom-

Hearings Before A Subcommittee of the Senate Judiciary 
Committee, 94th Cong., 1st Sess., 124 (1975).

United States Commission on Civil Rights, The Voting Rights 
Act: Ten Years After, pp. 204-319 (1975).

1® S. Rep. No. 94-295, pp. 16-18; H. R. Rep. No. 94-196, pp. 10, 
18-19, 77-8, 99; 121 Cong. Rec. S 13401 (Remarks of Sen. Tun- 
ney) (Daily Ed. July 23, 1975) ; S 13668 (Remarks of Sen. 
Humphrey), S 13670 (Remarks of Sen. Kennedy) (Daily Ed. 
July 24, 1975); H 4708 (Remarks of Rep. Young), H 4710 (Re­
marks of Rep. Rodino), H 4712, H 4715 (Remarks of Rep. Ed­
wards), H 4743 (Remarks of Rep. Roybal), II 4346 (Remarks of 
Rep. Jordan) (Daily Ed. June 2, 1975) ; H 4879 (Remarks of 
Rep. Badillo), H 4906 (Remarks of Rep. Conyers), H. 4910 (Re­
marks of Rep. Stokes) (Daily Ed. June 4, 1975) ; Hearings Before 
A Subcommittee of the Senate Judiciary Committee, 94th Cong., 
1st Sess., 1 (Statement of Senator Tunney), 16 (Statement of 
Senator Hart), 47, 51 (Statement of Clarence Mitchell), 75 92 
(Statement of Arthur Flemming), 129, 142 (Statement of Prank 
Parker), 225 (Statement of Howard Glickstein) (1975) ; Hearings 
Before A Subcommittee of the House Judiciary Committee, 94th 
Cong., 1st Sess., 23, 26, 31 (Statement of Arthur Flemming) 331, 
340 (Statement of Howard Glickstein) (1975); United States 
Commission on Civil Rights, The Voting Rights Act: Ten Years 
After, pp. 204-327, 343 (1975).



15

inantly white districts.^'' Congress knew that the prac­
tice of the Attorney General under section 5 was to object 
to both forms of gerrymandering.^* Senator Bayh, one of 
the sponsors of legislation to renew the Act, noted that a 
key consideration in appraising whether a redistricting plan 
had a discriminatory effect was or whether it would “afford 
minorities ‘representation reasonably equivalent to their 
political strength’ . . . .  This means that where blacks are 
more than 40 percent of the population as in Eichmond, 
section 5 requires a redistricting plan in which a com­
parable portion of the seats have substantial black majori­
ties.” Professor Howard Glickstein, former staff director 
of the Civil Rights Commission, whose views were authori­
tatively described as reflecting the Senate “committee’s 
interpretation of the legal standards for redistricting cases 
under section 5,” *“ stated that “ [T]o the extent that it is 
realistically feasible to draw a line which does not divide 
the minority conununity and thus does not dilute the value

Hearings Before a Subcommittee of the Senate Judiciary 
Committee, 94th Cong., 1st Sess., 163-9, 180-86 (Mississippi Law 
Journal Article); 217 (Statement of Howard Glickstein) (1975) ; 
Hearings Before a Subcommittee of the House Judiciary Com­
mittee, 94th Cong., 1st Sess., 340 (Statement of Howard Glick­
stein) (1975) ; United States Commission on Civil Eights, The 
Voting Eights Act: Ten Years After, pp. 204-327 (1975).

See e.g. Hearings Before A Subcommittee of the Senate Judi­
ciary Committee, 94th Cong., 1st Sess., 553 (Statement of J. 
Stanley Pottinger), 667 (Letter of J. Stanley Pottinger disap­
proving New York redistricting), 677-8 (Letter of J. Stanley 
Pottinger disapproving Arizona redistricting); 1038 (Statement 
of Howard Glickstein) (1975) ; Hearings Before A Subcommittee 
of the House Judiciary Committee, 94th Cong., 1st Sess., 252, 262 
(Statement of J. Stanley Pottinger), 1205, 1212, 1213-1218, 1224, 
1272, 1273, 1277, 1281 (U.S. Commission on Civil Eights, The 
Voting Eights Act: Ten Years A fter); 1505-10 (D. Hunter, 
Federal Eeview of Voting Changes) (1975). ,

IS 121 Cong. Eec. S 13665 (Daily Ed., July 24, 1975).



16

of minority votes, Section 5 requires that this he done . . . .  
[Wjhere the non-white population is so large that they will 
inevitably control at least one district, an attempt may be 
made to put as many non-white voters as possible in that 
one district so as to prevent substantial non-white concen­
trations in the surrounding districts. The application of 
Section 5 will prevent such overloading of one dis­
trict . . . .”

The use of such district lines, which divided up concen­
trations of minority voters and submerged them in pre­
dominantly white districts, is an important reason why 
there are still so few non-white elected officials in section 5 
jurisdictions. Only a year ago the Civil Rights Commis­
sion observed that “white voters refuse to vote for black 
candidates solely because of their race”.̂  ̂ The Commis­
sion noted that in a variety of areas, including New York 
City, literature had been used “which exploited the fear 
and frustrations of white urban dwellers toward minority 
group members”.̂  ̂ These problems frequently made it

Hearings Before A Subcommittee of the Senate Judiciary 
Committee, 94th Cong., 1st Sess., 1039 (1975). See also S. Rep. 
No. 94-295, p. 18; H. R. Rep. No. 94-196, p. 10; 121 Cong. Rec. S 
13340 (Remarks of Sen. Tunney) (Daily Ed., July 22, 1975), S 
13400 (Remarks of Sen. Kennedy), S 13402-04 (Remarks of Sens. 
Byrd, Pastore, and Tunney) (Daily Ed., July 23, 1975), H 4756 
(Remarks of Rep. Clay) (Daily Ed., July 2, 1975), H 4830 (Re­
marks of Rep. Kastenmeier) (Daily Ed., June 3, 1975) ; Hearings 
Before A Subcommittee of the State Judiciary Committee, 94th 
Cong., 1st Sess., 4, 11 (Statement of Rep. Rodino), 29 (Statement 
of Arthur Flemming), 642-3 (Statement of Armand Derfner) 
(1975); Hearings Before A Subcommittee of the House Judiciary 
Committee, 94th Cong., 1st Sess., 8 (Statement of Sen. Scott), 
16-17 (Statement of Sen. Hart), 79, 98-99 (Statement of Arthur 
Flemming), 146 (Statement of Frank Parker), 226 (Statement of 
Howard Gliekstein) (1975).

United States Commission on Civil Rights, The Voting Rights 
Act: Ten Years After, pp. 155-56 (1975).



17

impossible for a minority candidate to win election from 
a predominantly white district. The House and Senate re­
ports noted that most minority officials in these areas had 
been elected from districts “with overwhelmingly black 
populations”.®̂ The Chairman of the Commission on Civil 
Rights testified:

The presence of substantial black population does 
not ensure that blacks will be elected to office. For 
example, there are no blacks elected to any county 
office in the 191 of 260 counties with 25 to 50 per cent 
black population. . . .  In  90 per cent of the counties 
in the population group, no blacks sat on county gov­
erning boards.”

Application of the Voting Eights Act, particularly where 
it prevented the fragmentation of a minority community 
into majority white districts, was regarded by Congress 
as a major cause of the modest increase in the number of 
minority officials which had occurred prior to 1975.®® In 
1975 Congress renewed the Act until 1982 in the hope that

S. Rep. No. 94-295, p. 14; H. R. Rep. 94-196, p. 7.
Hearings Before A Subcommittee of the Senate Judiciary 

Committee, 94th Cong., 1st Sess., 90 (1975).
Hearings Before A Subcommittee of the Senate Judiciary 

Committee, 94th Cong., 1st Sess., 1 (Statement of Senator Tun- 
ney), 3-4 (Statement of Senator Bayh), 8 (Statement of Senator 
Scott), 13 (Statement of Senator Hart), 21 (Statement of Senator 
Kennedy), 47 (Statement of Senator Mitchell), 72 (Statement of 
Senator Mathias), 74, 82, 89-90 (Statement of Arthur Flemming), 
108 (Statement of John Lewis), 121 (Statement of Nicholas 
Katzenbach), 224 (Statement of Howard Glickstein), 539, 586-7 
(Statement of J. Stanley Pottinger) (1975),; Hearings Before A 
Subcommittee of the House Judiciary Committee, 94th Cong., 1st 
Sess., ,7. (Statement of Rep. Rodino), 27 35-6, 41 (Statement of 
Arthur Flemming), 173 (Statement of J. Stanley Pottinger), 
330, 337 (Statement of Howard Glickstein) (1975).



18

it would substantially enlarge the opportunities for non­
whites to be elected to public office. ’̂'

Congress in 1975 was also familiar with the facts of 
this case, which were used by the Commission on Civil 
Rights as an illustration of the way in which section 5 
had been applied.^* The decisions of the Attorney General 
in this case, objecting to the 1972 lines and approving the 
1974 lines, were reprinted in both the House and Senate 
Hearings.^®

Petitioners plainly disagree with the reasons which 
led Congress to renew the Act in 1970 and again in 1975; 
they insist that white bloc voting no longer exists, that

” S. Rep. No. 94-295, p. 14; H. R. Rep. No. 94-196, p. 7; 121 
Cong. Rec. S 13337-9 (Remarks of Sen. Tunney) (Daily Ed., 
July 22, 1975), S 13668 (Remarks of Sen. Humphrey), S 13669 
(Remarljs of Sen. Kennedy) (Daily Ed., July 24, 1975), H 4712, H 
4714, H 4717 (Remarks of Rep. Edwards), H 4756 (Remarks of 
Rep. Clay) (Daily Ed., June 2, 1975), H 4829 (Remarks of Rep. 
Collins) (Daily Ed., June 3, 1975); Hearings Before a Subcom­
mittee of the Senate Judiciary Committee, 94th Cong., 1st Sess., 
3-4 (Statement of Sen. Bayh), 9 (Statement of Sen. Scott), 13 
(Statement of Sen. Hart), 72 (Statement of Sen. Mathias), 89-90 
(Statement of Arthur Flemming), 109 (Statement of John 
Lewis), 125 (Statement of Nicholas Katzenbach), 127-28, 141-42 
(Statement of Frank Parker), 224 (Statement of Howard Gliek- 
stein), 539, 586-87 (Statement of J. Stanley Pottinger) (1975) ; 
Hearings Before A Subcommittee of the House Judiciary Com­
mittee, 94th Cong., 1st Sess., 7 (Statement of Rep. Rodino), 
21-22, 35-36 (Statement of Arthur Flemming), 173 (Statement of 
J. Stanley Pottinger), 3330, 337 (Statement of Howard Gliek- 
stein) (1975) ; United States Commission on Civil Rights, The 
Voting Rights Act: Ten Years After, pp. 61-67, 337, 377-395 
(1975).

United States Commission on Civil Rights, The Voting Rights 
Act: Ten Years After, pp. 220-230 (1975).

Hearings Before the Subcommittee on Civil and Constitutional 
Rights of the House Judiciary Committee, 94th Cong., 1st Sess., 
pp. 252-260 (1975) ; Hearings Before the Subcommittee on Con­
stitutional Rights of the Senate Judiciary Committee, 94th Cong., 
1st Sess., pp. 667-676 (1975).



19

non-white candidates have an equal opportunity for elec­
tion in any part of the country, that white elected officials 
are uniformly as opposed to discrimination as any non­
white official would be, and that there is no possible manner 
in which district lines could have the effect of diluting the 
value of minority votes. P. Br. 29-42. Substantially sim­
ilar arguments were unsuccessfully advanced by the appel­
lants in City of Petersburg v. United States, 410 U.S. 962 
(1973),®“ and by those who opposed extension of the Voting 
Rights Act in 1975.®̂  Were it necessary for the Court to 
inquire into the merits of these contentions, we believe 
that they could not be sustained; with regard to Kings 
County, for example, there is a clear pattern of white bloc 
voting and non-white candidates have only been elected 
from overwhelmingly non-white districts. See p. 25, 
infra. But there is no need for such an inquiry, for Con­
gress has already resolved this matter by twice renewing 
the statute. Congress is, we would suggest, uniquely com­
petent to make such an essentially political assessment of 
voter attitudes, the manipulability of district lines, and 
the other problems confronting minority candidates and 
voters. That assessment was made after extensive com­
mittee hearings, extended debate, and careful consideration

®“ In Petersburg the district court concluded that the annexation 
of a heavily white area by a city with a slight non-white majority 
would have a discriminatory e’ffect in violation of section 5. Appel­
lants contended that, regardless of the impact of the annexation on 
the outcome of the city’s at-large elections, it could not be said to 
dilute the value of minority votes in any legally cognizable sense. 
Jurisdictional Statement, No. 74-865, pp. 22, 23, 25; Brief For 
Appellant in Opposition to Motions to Affirm, No. 74-865, pp. 5-6.

121 Cong. Ree. H 4744-45 (Daily Ed., June 2, 1975), S 13325- 
26, 13344, 13357 (Daily Ed., July 22, 1975), S 13378 (Daily Ed., 
July 23, 1975), S 13589-92 (Daily Ed., July 24, 1975) ; Hearings 
Before the Subcommittee on Civil and Constitutional Rights of the 
House Judiciary Committee, 94th Cong., 1st Se'ss., pp. 145, 683, 
710-11 (1975).



20

of the lengthy report of the Commission on Civil Eights. 
Congress has also recognized that the factual situation to 
which the Voting Eights Act is addressed may well change; 
it has therefore provided that the Act must he renewed 
from time to time to assure a periodic reevaluation of the 
relevant circumstances. See Oregon v. Mitchell, 400 U.S. 
112, 216 (1970) (Harlan, \J. concurring and dissenting).

The congressional findings which underlie the renewal 
of the Voting Eights Act should be accepted by this Court. 
The courts are singularly ill equipped to reconsider on a 
nationwide basis the political and social realities which 
were well known to Congress. Petitioners offer little more 
than abstract argument to support their contention that the 
problems found by Congress do not, or at least should not, 
exist. Congress was doubtless awa,re of the fact, greatly 
stressed by petitioners, that in some instances, largely out­
side section 5 jurisdictions, non-white candidates had been 
elected by predominantly white constituencies. Congress 
was justified, however, in concluding that this salutary de­
velopment did not necessarily signal the arrival of the 
millennium. If petitioners believe that the problems which 
led to the adoption of section 5, have, at least as regards 
redistricting, abated, that contention should be made to 
Congress.

C. The Decision of the Attorney General

On January 4, 1974, the District Court for the District 
of Columbia rescinded New York’s exemption from the 
Voting Eights Act and directed New York to submit its 1972 
districting plan to the Attorney General forthwith. That 
plan was submitted on February 1, 1974. Under the regu­
lations promulgated by the Attorney General any inter­
ested member of the public was able to comment on the 
proposed submission. 28 G;F.E. § 51.12. Because of the



21

unusual amount of publicity which surrounded the submis­
sion,^  ̂ the Department of Justice received a substantial 
amount of such commentary. Both intervenors and the 
State of New York submitted detailed memoranda regard­
ing the 1972 plan, App. 202-235, 248-256, and numerous 
public officials wrote to the Attorney General to express 
their views. App. 237-247. The record in this case is silent 
as to whether petitioners or their counsel made any oral or 
written representations to the Attorney General regarding 
the 1972 lines. See App. 88.

On April 1, 1974, the Attorney General entered an ob­
jection to the Senate, Assembly and Congressional lines in 
Kings County (Brooklyn), and the Senate and Assembly 
lines in New York County (Manhattan). No objection was 
made to the Congressional lines in New York County or 
to any of the lines in Bronx County. The Attorney General 
concluded that the Kings County lines had precisely the 
configuration which Congress had intended to prohibit; a 
small area at the center of the non-white community was 
placed in districts with virtually no whites, and the balance 
of the minority community was fragmented into small 
pieces where were paired with larger white areas in pre­
dominantly white districts. The letter of objection 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 Bican concentrations into the surrounding 
majority white districts. We have not been presented 
with any compelling justification for such configura­
tion and our analysis reveals none . . .

’See, e.g., New York Times, January 5, 1974, p. 1, eal. 8.



22

Similarly, in the Kings County Senate and assembly 
plans, a parallel problem exists. Senate district 18 
appears to have an abnormally high minority concen­
tration while adjoining minority neighborhoods are 
significantly diffused into surrounding districts. In the 
less populous proposed assembly districts, the minority 
population appears to be concentrated into districts 
53, 54, 55 and 56, while minority neighborhoods adjoin­
ing those districts are diffused into a number of other 
districts. App. 14-15.

The pattern found by the Attorney General is illustrated 
by the map of the 1972 Senate lines on the opposite page, 
reprinted from a report of the United States Commission 
on Civil Rights.®® Petitioners did not question below the 
accuracy of the Attorney General’s description of the frag­
menting effect of the 1972 lines.

The record before the Attorney General fully justified 
his conclusion that New York had failed to establish that 
the 1972 lines had no discriminatory effect. The non-white 
community in Kings County is largely concentrated in a 
single contiguous area in central Brooklyn, in and around 
Bedford-Stu5wesant. App. 221. The 1972 lines, however, 
were drawn in such a way that a majority of non-whites in 
the county were placed in predominantly white Congres­
sional and Senate districts. The bulk of the non-white 
community was divided up among 6 majority white Assem­
bly districts, 5 majority white Senate districts, and 4 ma­
jority white Congressional districts. App. 222. Not a 
single white community of any size was in a majority non­
white district. The number of non-whites in majority white

®® The Voting Rights Act: Ten Years After, p. 223 (1975). The 
map significantly understates the size of the minority community.- 
Since total non-white population is not indicated, areas up to 59% 
non-white appear as “all others” where neither the black nor 
Puerto Rican group exceeded 30%.



BROOKLYN, KINGS COUNTY

Map No. 1. The 1972 plan for Brooklyn senate districts concentrates much of the minority population 
in a few districts and divides the remainder among majority white districts.



23

‘ ' «i"

• ‘



24

districts vastly outnumbered tbe number of whites in non- 
white districts.

Non-whites in Whites in
Majority White Majority

District Districts Non-white Districts
Congressional......................  455,862 93,547

Senate .................................. 574,811 44,081

Assembly..............................  361,707 135,260

App. 220. These figures contrasted with the situation in 
Bronx County, where the numbers of whites in predom­
inantly non-white districts was only slightly smaller than 
the number of non-whites in predominantly white dis­
tricts. Id.

This fragmentation of the minority community clearly 
affected the number of district with non-white majorities. 
The number of non-whites siphoned off from the Bedford- 
Stuyvesant ghetto was equal to the population of 2 Assem­
bly districts, 2 Senate districts, or 1 Congressional dis­
trict. App. 222. The proportion of districts with non­
white majorities, and in which a non-white candidate would 
thus have a reasonable opportunity for election, was sub­
stantially smaller than the proportion of the County popu­
lation that was non-white. App. 233.®̂  The non-white 
districts in the center of the ghetto were substantially 
more compact than the predominantly white districts which 
paired portions of the minority community with larger 
white areas miles away. App. 224. Several leading black 
and Puerto Rican political leaders submitted detailed writ­
ten statements to the Attorney General objecting to the 
division of the minority community and alleging that it 
was the result of deliberate racial gerrymandering “so that

For example, non-whites constituted 35.6% of the County 
but only 11.7% of the Senate districts had a non-white majority.



25

the number of districts with Black and Puerto Eican ma­
jorities is kept to a minimum.” App. 237-247.

The record before the Attorney General contained ample 
evidence of racially polarized voting. With the exception 
of the Borough President of Manhattan, who had run un­
opposed, not a single majority white district in the City of 
New York was represented by a Black or Puerto Eican. 
No Black or Puerto Eican had ever been elected to state­
wide or city-wide office. App. 212. Election results of races 
between white and non-white candidates showed a substan­
tial correlation between the vote received by the white can­
didate and the white population of the area involved. App. 
213-216.

This evidence led the Attorney General to enter an objec­
tion to district lines which clearly minimized non-white 
voting strength in Kings County. In the proceedings below 
petitioners did not question the accuracy of the evidence 
before the Attorney General, nor allege the existence of 
additional evidence with regard to the 1972 lines which he 
inexcusably failed to consider. Those of petitioners’ wit­
nesses who discussed the matter agreed that the fragmen­
tation of a non-white community would have an “adverse 
effect” on minority voters, App. 32, 60, 67, and one of those 
witnesses testified that “blacks and Puerto Eieans had been 
gerrymandered in the past.” App. 62.

D. Absence o f Discrim inatory Effect

Following the Attorney General’s objection to the 1972 
lines. New York declined to seek to validate those lines 
through further litigation, hut chose instead to adopt new 
district lines which would be free of the defects which 
tainted the 1972 plan.®® On May 29 and 30, 1970, the Legis-

New York could have brought suit in the United States District 
Court for the District of Columbia to obtain a declaratory judg-



26

lature adopted new Assembly, Senate and Congressional 
lines in Kings County and new Assembly and Senate lines 
in New York County. These new lines substantially reduced 
the fragmentation of the minority community, increased the 
number of predominantly non-white districts, and roughly 
equalized the number of whites in majority non-white dis­
tricts and the number of non-whites in predominantly white 
districts. The Attorney General approved these 1974 lines 
on July 1, 1974. App. 282-302.

The 1974 lines did not have the effect of discriminating 
against whites. Kings County is clearly not a county in 
which whites have been “excluded from participation in 
political life” or been “effectively removed from the politi­
cal process.” White v. Regester, 412 U.S. 755, 769 (1973). 
Whites constitute 64.9% of the county population; under 
the 1974 redistricting plan they are a majority of 68.6% of 
the Assembly districts and 70.0% of the Senate districts. 
Among the officials elected under the 1974 lines, 77.2% of 
the Assemblymen are white and 80% of the Senators are 
white. The 1974 redistricting resulted in five new districts 
in which non-whites were for the first time a majority; in 
the succeeding election white candidates won the elections

ment that the 1972 lines did not have a discriminatory purpose 
or effect. In view of the Attorney General’s expertise, and his 
application of the same standards applied in court, few jurisdic­
tions have chosen to pursue such litigation. In the first 10 years 
of the Act, the Attorney General interposed 163 objections. Hear­
ings Before the Subcommittee on Civil and Constitutional Eights 
of the House Judiciary Committee, 94th Cong., 1st Sess., p. 185 
(1975). The submitting authority has only sought to challenge 
that determination in three instances. City of Petershiirg v. United 
States, 410 U.S. 962 (1973) ; Beer v. United States, No. 73-1869; 
City of Richmond v. United States, 422 U.S. 358 (1975) (Although 
Richmond initially sought to overturn the Attorney General’s 
decision objecting to annexation as such, it subsequently conceded 
the correctness of that decision; the bulk of the litigation dealt 
with a dispute between Richmond and certain intervenors as to 
which ward plan should be adopted).



27

in four of these.**® The four officials elected on a countywide 
basis are all white,”  as are the Democratic and Republican 
County Chairmen. There is no history in the county of dis­
proportionately low levels of white education, employment, 
registration or voting. Compare White v. Begester, 412 
U.S. at 768.

The 1974 lines did not have the effect of “maximizing” the 
number of districts in which non-white candidates were 
assured of election. With regard to the Congressional and 
Assembly lines the number of non-white legislators elected 
under the 1972 and 1974 lines was unchanged. I t clearly 
would have been possible to draw lines more favorable to 
non-whites. The minority population of the 14th Congres­
sional district, which now as before is represented by a 
white, could have been substantially increased; the Attor­
ney General expressly declined to insist that this be done. 
App. 294-297. The minority population of the 57th As­
sembly district could as readily have been raised from 
65.0% to 80.4%, but the Legislature chose not to do so. 
Compare App. 122-23 with App. 277.

Petitioners do not assert that, because of their religion 
or ancestry, they should enjoy rights not accorded to other 
whites. P. Br. 6, n. 6. One group of amici, however, do urge 
that, because of the persecution of the Hassidim in Europe 
during World W ar II, these whites are different from all

The 57th and 59th Assembly districts, 17th and 23rd Senate 
districts, and the 14th Congressional district.

Whites are a majority of 16 Assembly districts, numbers 38, 
39, 40-52, and 58, and of 7 Senate districts, 15, 16, 19-22, and 25. 
Non-whites are a majority of 7 Assembly districts, numbers 40, 
53-57, and 59, and of 3 Senate districts, 17, 18 and 23, App. 179-80, 
195. Whites represent all the majority white districts as well as 
Assembly districts 57 and 59 and Senate districts 17 and 23.

”  Borough President, District Attorney, and two City Council- 
men.



28

other whites.®  ̂ Regardless of whether the state could take 
into consideration that history of persecution in fashioning 
laws which might help to overcome the lingering effects of 
those tragic events, such a policy is not constitutionally 
required, and cannot be relied on to avoid the state’s re­
sponsibilities under the Voting Rights Act,

Petitioners do not claim that the 1974 lines so emascu­
lated white voting strength in Kings County as to violate 
White Y. Begester, 412 U.S. 755 (1973). Their objection is 
solely to the purpose which motivated the Legislature to 
draw these particular lines. Had the 1974 district lines, or 
the division of the Hassidic community, been the result of 
“racially neutral” criteria, such as shaping the most com­
pact contiguous districts, petitioners presumably would not 
question the validity of such lines.

E. Cause o f the Alleged Injury

On June 11, 1974, petitioners commenced this action in 
the United States District Court for the Eastern District 
of New York. They alleged that the 1974 Senate and Assem­
bly lines had divided the Hassidic community in Williams- 
burgh and thus “diluted” the voting power of the Hassidic 
plaintiffs. App. 11. The exclusive cause of this division 
was asserted to be that the Legislature, in drawing those 
lines, had sought to assure that at least 65% of the resi­
dents of certain districts were non-white. App. 10. The 
use of such a “quota”, or any other consideration of race, 
was alleged to be unconstitutional. App. 11. Both the dis­
trict court and the court of appeals held that New York 
could constitutionally consider the racial composition of the 
1974 lines in fashioning a remedy for the discriminatory 
1972 lines. Neither court, therefore, found it necessary to

Brief Amicus Curiae of Board for Legal Assistance to the 
Jewish Poor, pp. 34, 50-52.



29

decide whether the alleged “quota” was in fact the cause 
of the alleged harm to petitioners.

The only injury of which petitioners complain is that 
their community, although wholly within a single congres­
sional district, is divided between two Senate districts and 
two Assembly districts. P. Br. 13, 24; App. 11, 46, 67, 260- 
261. Although alleging that the congressional lines were 
fashioned in the same manner as the Senate and Assembly 
lines, petitioners do not seek to overturn the former since 
they are located entirely within a single congressional 
district. Petition, p. 18a, n. 10. The petitioners in the 
district court expressly disclaimed any concern with 
whether the district in which they were placed had a non­
white majority, so long as the entire Hassidic community 
was in a single district. App. 46, 83, 87. Petitioners main­
tain that the sole reason the Hassidic community was 
divided in half was because of the alleged 65% rule. P. Br. 
24; App. 11, 261.

The record, however, clearly demonstrates that the 
division of the Hassidic community was not caused by the 
alleged quota. Under the present plan the community is 
divided between the 57th Assembly District, with a 65% 
non-white population, and the 56th Assembly District, with 
an 88.1% non-white population. App. 195. Mr. Scolaro, 
the Executive Director of the Joint Legislative Committee 
on Reapportionment, testified that it would have been 
possible to keep the Hassidic community intact by placing 
it in the 56th district:

Q. Now, did you consider putting the entire Hassidic 
community in the 56th Assembly district?

A. That was one variable that we came up with, yes, 
and that would require a moving of a portion of 
the Hassidic community which is presently in the



30

57tli district, totally into the 56th district, and 
that would have resulted, to the best of my knowl­
edge, in two districts, both of which would be over 
65 percent non-white.

App. 122. Interveners introduced in the district court a plan 
drawn in the manner described by Scolaro, which would 
have placed the entire Hassidic community in a single 
district without violating any 65% rule. App. 270-278. 
Similarly, Scolaro testified it would have been possible to 
draw Senate lines which placed the entire Hassidic com­
munity in a single district while complying with the alleged 
65% requirement:

Q. Would it be, would it have been or would it be 
possible to redraw the Senate lines so that the 
entire Hassidic community was within a single 
Senatorial district and still comply with the 65 
percent requirement?

A. You are dealing with such a large number in the 
Senatorial district, 304,000 people, that I am sure 
there would be a way. . .

App. 124.*''

The actual reason for dividing the Hassidic community, 
at least with regard to the Assembly districts, was a desire 
to minimize the number of whites who would be in a heavily 
non-white district. Scolaro stated, with regard to placing 
the entire community in the 56th Assembly district:

Plaintiff’s Motion for Summary Judgment asserted that there 
was no genuine issue as to whether the 65 percent rule was the 
sole reason for dividing the community. App. 261. Intervenors’ 
Statement of Material Issues as to Which There is a Genuine 
Dispute expressly controverted that contention, and referred to 
Seolaro’s testimony. App. 279-28(1.



31

A. The only white community in this whole com­
munity would be the Hassidic Jewish community, 
there would be no other whites.

Q. But, Mr. Scolaro, in hindsight, it would have been 
possible under that scheme to both comply with 
the Justice Department 65 percent standard, if 
that was their standard, and keep the Hassidic 
community together?

A. Yes, sir, but it was my judgment in trying to 
apply the Department of Justice overall criteria 
that that would definitely make no representation 
for the Hassidic community at all and that it would 
be such a minority group in an overwhelmingly 
black area that they would have not had any repre­
sentation. They would compose approximately 
25,000 people out of 121,000 people and 90,000 of 
those 121,000 or more would be black.

App. 121-122. This testimony is supported by evidence 
presented to the Attorney General that the 1972 lines were 
also drawn so as to avoid placing whites in majority non­
white districts. App. 218-224. Although Scolaro suggested 
this division of the Hassidic community was in its best 
interest, the petitioners obviously believe otherwise.

This critical failure of' proof requires dismissal of this 
action, regardless of whether there was a 65% “quota” or 
whether such a “quota” would be constitutional. The quota 
which petitioners seek to attack simply is not the cause of 
their injury. Linda R.S. v. Richard D., 410 U.S. 614 (1973). 
Petitioners remain free, if they wish, to seek to consolidate 
their community in the 56th.Assembly district by commenc­
ing a new action challenging the constitutionality of Sco- 
laro’s desire to avoid placing Hassidim in a heavily nom 
white district.



32

ARGUMENT

Petitioners advance three arguments in support of their 
contention that the 1974 district lines are unconstitutional: 
(1) that in adopting election laws, even to remedy past dis­
crimination, a state must close its eyes to the racial impact 
of the proposed legislation, (2) that the Attorney General’s 
decision of April 1, 1974, provides no basis for the 1974 
plan since there was no authoritative finding that the 1972 
plan had a discriminatory purpose, and (3) that the Legis­
lature used an impermissible “quota” in fashioning the 
1974 lines. We examine each of these grounds in turn.

I.
The New York Legislature Was Obliged to Take Into 

Account the Racial Composition of the Affected Districts 
in Drawing the 1974 District Lines.

Petitioners’ first, and most broadly stated, contention is 
that “there is never any justification for race-consciousness 
in the electoral process”, not even “ ‘to undo the effects of 
past discrimination’ or to prevent its ‘perpetuation.’ ” P. 
Br. 21. Petitioners do not attempt to argue that taking 
account of race in fashioning remedies for past racial 
discrimination is constitutionally impermissible across the 
board. They necessarily concede that, in fashioning 
remedies for racial discrimination in other sectors of 
American life, both this Court and numerous lower courts 
have concluded that race must be considered.^” Petitioners

This Court mandated such consideration to formulate an 
effective remedy for school segregation in Swann v. Charlotie- 
Mecklenburg Board of Education, 402 U.S. 1, 18 (1971), and 
North Carolina Board of Education v. Swann, 402 U.S. 43,. 45 
(1974) and for discrimination in faculty assignments, United



33

do not, of course, deny that it is usually imperative to know 
the race of the persons atfected in order to determine 
whether a challenged practice is discriminatory in nature.

In scrutinizing both the 1972 and 1974 district lines the 
Attorney General could not assess whether they minimized 
minority voting strength and thus had a discriminatory 
effect without knowing the racial composition of the dis­
tricts involved. The applicable regulations require the 
submitting authority to furnish the Attorney General with 
the “population distribution by race within the proposed 
units” and, where available, with the “ [vjoting age pop­
ulation and the number of registered voters” by race in 
the districts involved. 28 C.F.R. §51.10(b) (5)-(6). In both 
City of Petersburg v. United States, 410 U.S. 962 (1973) 
and City of Richmond v. United States, 422 U.S. 358 
(1975), this Court was required in assessing the effect of 
a proposed annexation to consider the racial composition 
of both the original city and the area to he annexed, in 
order to determine whether the annexation “would create 
or perpetuate a white majority in the city.” 422 U.S. at

States v. Montgomery County Board of Education, 395 U.S. 225 
(1969). The lower courts have done so in such diverse areas as 
urban renewal, public housing, employment and jury selection. 
Otero V. New York City Housing Authority, 484 P.2d 1122 (2d 
Cir. 1973) ; Gautreaux v. Bomney, 448 P.2d 731 (7th Cir. 1971); 
Kennedy Park Homes Ass’n v. City of Lackawanna, 436 P.2d 108 
(2d Cir. 1970), cert, denied 401 U.S. 1010 (1971) ; Heyward v. 
Public Housing Administration, 238 F.2d (5th Cir. 1956); Boston 
N.A.A.C.P. V. Beecher, 504 F.2d 1017, 1026-27 (1st Cir. 1974) ; 
Castro V. Beecher,Am F.2d 725, 737 (1st Cir. 1972); N.A.A.C.P. 
V. Allen, 493 F.2d 614 (5th Cir. 1974) ; Morrow v. Crisler, 491 
P.2d 1053, 1056, cert, denied 419 U.S. 895 (1974); Carter v. Gal­
lagher, 452 P.2d 315, 331 (8th Cir.) cert, denied 406 U.S. 950 
(1972) ; Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Commission, 482 P.2d 1333 (2d Cir. 1973); Vulcan Society v. 
Civil Service Commission, 490 P.2d 387 (2d Cir. 1973) ; Brooks v. 
Beto, 366 F.2d 1 (5th Cir. 1966).



34

368.̂  ̂ Petitioners do not, of course, contend that the 
constitution directs the Attorney General to ignore the 
racial composition of districts whose effect on minority 
voters he is obligated to scrutinize.

In fashioning its 1974 districting plan, the New York 
Legislature was not obligated to close its eyes to the 
very facts which it was required to disclose to the At­
torney General and which the Attorney General was com­
pelled to consider in reviewing that plan. Just as the 
racial compositions of the 1972 districts had been considered 
in determining whether the 1972 lines violated section 5 of 
the Voting Rights Act, “so also must race be considered 
in formulating a remedy.” North Carolina Board of Ed­
ucation V. Swann, 402 IJ.S. 43, 46 (1971). I t  would have 
been irresponsible for New York to have adopted a series 
of district plans at random, without regard to whether 
they minimized minority voting strength, until it stumbled 
across a plan without the forbidden effect. Petitioners do 
not suggest New York should have enacted plans at ran­
dom, nor do they suggest any other way in which the 
state could have remedied the defects of the 1972 lines. 
To correct a districting plan which has the effect of un­
lawfully minimizing minority voting strength, a redistrict­
ing plan must take into account the perceived illegality.

'̂'■Georgia v. United States, 411 TJ.S. 526 (1973), furnishes an­
other example of the “race-eonsciousness” required in a Section 5 
proceeding. To facilitate its evaluation of a 1971 Georgia reappor­
tionment proposal, “The Justice Department asked for census 
maps of the 1964 and 1968 House districts; the distribution of 
white and non-white populations within the 1964, 1968, and 1971 
districts; a history of the primary and general elections in which 
Negro candidates ran; data, including race, with respect to all 
elected state representatives; and the legislative history of all 
redistricting hills.” Id. at 529 n. 4. This Court observed that 
“There is no serious claim in this case that the additional informa­
tion requested was unnecessary or irrelevant to Section 5 evaluation 
of the submitted reapportionment plan.” Id. at 540.



35

The success of the new plan can only he measured by the 
extent to which it remedies the illegal fragmentation of 
racial minorities. To require a state to ignore the racial 
distribution of the atfected populace would be to frustrate 
any good faith effort to comply with section 5; to forbid 
the Attorney General in appraising a proposed plan to 
consider that distribution would be to frustrate, not only 
the vital objective which Congress sought to achieve in 
adopting and twice re-enacting the Voting Rights Act of 
1965, but also the constitutional policies which underlie 
the Act.

This common sense view of the state’s responsibility 
in fashioning a remedy for the discriminatory 1972 lines 
corresponds with the understanding of Congress. In a 
memorandum submitted to the Senate Subcommittee on 
Constitutional Eights in May of 1975, Avhen that Subcom­
mittee was considering legislation to extend the Voting 
Rights Act, Professor Howard A. Glickstein, formerly 
Staff Director of the United States Commission on Civil 
Rights, stated:

Obviously, in order for local officials to evaluate the 
potential discriminatory effects of the redistricting 
plans they draft, it is necessary that they take into 
account the racial makeup of each of the districts. 
Otherwise, it would-be impossible to assess the im­
pact of redistricting plans which are subject to the 
Section 5 standards.

On July 24, 1975, in the course of Senate debate on the 
bill shortly thereafter enacted to extend the Voting Rights 
Act, Senator Bayh referred to Professor Glickstein’s pres-

Hearings Before the Subcommittee on Constitutional Rights 
of the Senate Judiciary Committee, 94th Cong., First Sess. l039 
(1975).



36

entation as embodying “the committee’s interpretation of 
the legal standards for redistricting cases under Section 5.” 
P. 15, n. 20, supra.

A recent example of the way in which local officials, 
the Attorney General, and this Court all “take into ac­
count the racial makeup of each of the districts” in fashion­
ing a remedy is City of Richmond v. United States, 422 U.S. 
358 (1975). There the City of Richmond had proposed to 
annex a predominantly white area which would have re­
duced the black population of the City from 52% to 42%, 
thus significantly lessening black voting strength in at- 
large City Council elections. The Attorney General ob­
jected to the annexation on the ground that it thus had 
a discriminatory effect, but suggested that this defect 
might be overcome by an appropriate single-member dis­
trict plan. 422 U.S. at 364. Richmond thereupon adopted 
a single-member district plan designed to overcome the 
discriminatory impact of the annexation itself, which was 
approved by both the Attorney General and this Court. 
In sustaining Richmond’s plan this Court pursued exactly 
the sort of inquiry into the racial composition of the pro­
posed districts which petitioners contend is constitutionally 
impermissible:

We are also convinced that the annexation now be­
fore us, in the context of the ward system of election 
finally proposed by the city and then agreed to by 
the United States, does not have the effect prohibited 
by Section 5. The findings on which this case was 
decided and is presented to us were that the post­
annexation population of the city was 42% Negro 
as compared with 52% prior to annexation. The nine- 
ward system finally submitted by the c ity ' included 
four wards each of which had a greater than 64% 
black majority. Four wards were heavily white. The



37

ninth had a black population of 40.9%. In our view, 
such a plan does not under-value the black strength 
in the community after annexation; and we hold that 
the annexation in this context does not have the ef­
fect of denying or abridging the right to vote within 
the meaning of Section 5. 422 U.S. at 371-72.

Absent the remedial “race-consciousness” of the Rich­
mond City Council, the Attorney General and this Court, 
the vital purposes of the Voting Rights Act—and of the 
Fourteenth and Fifteenth Amendments, which the Act is 
designed to implement—could not have been faithfully 
carried out.

II.
The Decision of the Attorney General Was Lawful 

and Required New York to Remedy the M in im iza tio n  
of Minority Voting Strength Which Tainted the 1972 
District Lines.

Petitioners expressly recognize that, as the court below 
held, the correctness of the Attorney General’s decision 
cannot be challenged by an attack on the resulting remedy. 
P. Br. 51; Petition, p. 9, n. 3. The record before the At­
torney General left little doubt that the 1972 district lines 
had minimized minority voting strength. See pp. 20-25, 
supra. Petitioners maintain, however, that even if the 
decision was correct, it did not warrant the enactment of 
any remedy. Petitioners object that the decision was in­
sufficient to justify any remedy, because (1) it rested on 
the state’s failure to meet its burden of proving that the 
1972 lines were not discriminatory, (2) it contained no find­
ing or discussion as to the purpose of the 1972 lines, and 
(3) it did not purport to conclude that the 1972 lines were 
unconstitutional.



38

Petitioners are, of course, right in noting that the At­
torney General’s decision was cast in the form of a con­
clusion that New York had not sustained its burden of 
proving that the 1972 lines did not have a discriminatory 
effect. But petitioners’ argument that a finding in this 
posture was ineffective to require New York to undertake 
remedial action is wholly unavailing. The applicable reg­
ulations clearly require the Attorney General to disap­
prove a submission where the submitting authority fails 
to meet this burden of proof. 28 C.P.E. §51.19.̂ ® This 
Court in South Carolina v. Katsenhach, 382 U.S. 301, 335 
(1966), expressly recognized that in section 5 actions 
brought in the District Court for the District of Columbia 
by a state or local government seeking approval of a new 
law the Voting Eights Act places “the burden of proof on 
the areas seeking relief.” In Georgia v. United States, 411 
U.S. 526 (1973), this Court upheld the validity of the 
regulation adopted by the Attorney General imposing the 
same burden of proof on those submitting jurisdictions 
which elect to pursue the section 5 alternative of pre­
clearance by the Attorney General. 411 U.S. at 536-39.

I t is true that in Georgia v. United States three mem­
bers of this Court dissented. 411 U.S. at 542-45. But only 
last year Congress voted to extend the Voting Eights Act 
without altering section 5 in this regard. In 1975 Congress 
took express note of this Court’s decision in Georgia v. 
United States^* and of the existence of the regulation in

“If the evidence as to the purpose or effect of the change is 
conflicting, and the Attorney General is unable to resolve the 
conflict within the 60-day period, he shall, consistent with the 
above-described burden of proof applicable in the District Court, 
enter an objection and so notify the submitting authority.”

«H .E . Eep. No. 94-196, 94th Cong. 1st Sess., pp. 9-10; S. Eep. 
No. 94-295, 9th Cong. 1st Sess., pp. 16-17.



39

question/® and must be deemed in renewing the Act to 
have approved both. Indeed, the letter of the Assistant 
Attorney G-eneral disapproving the 1972 lines in this very 
ease was itself referred to during, and reprinted with, the 
1975 House and Senate Hearings.^® Congress also knew 
that it is the general practice of the Attorney General, 
mindful of the sensitivities of the local officials involved, 
to phrase objection letters in terms of a failure to meet 
a burden of proof, rather than making an express finding 
of discriminatory effect. '̂  ̂Congress “had ample opportunity 
to amend the statute” ; its failure to do so compels the 
conclusion that Georgia v. United States, had “correctly 
interpreted the Congressional design.” Georgia v. United 
States, 411 U.S. at 526.«

S. Rep. No. 94-295, p. 16 (1975) ; H. R. Rep. No. 94-196, p. 8 
(1975). The Regulations were reprinted in both the House and 
Senate Hearings. Hearings Before the Subcommittee on Civil and 
Constitutional Rights of the House Judiciary Committee, 94th 
Cong., 1st Sess. pp. 186, 192 (1975); Hearings Before the Sub­
committee on Constitutional Rights of the Senate Judiciary Com­
mittee, 94th Cong. 1st Sess., pp. 601, 607 (1975).

Hearings Before the Subcommittee on Civil and Constitutional 
Rights of the House Judiciary Committee, 94th Cong., 1st Sess., 
p. 252 (1975) ; Hearings Before the Subcommittee on Constitu­
tional Rights of the Senate Judiciary Committee, 94th Cong., 1st 
Sess., p. 667 (1975).

Counsel for Intervenors have reviewed over 100 objection 
letters entered by the Attorney General during the last four years. 
In virtually every case the Attorney General phrased the letter as 
a holding that he was “unable to conclude” that the submission 
would not have a discriminatory effect, rather than as a holding 
that the submission would indeed have such a discriminatory effect. 
The letters are a matter of public record and are on file in the 
Voting Rights Section of the Civil Rights Division.

In Allen v. State Board of Elections this Court construed 
section 5 to cover “any state enactment which altered the election 
law of a covered State in even a minor way.” 393 U.S. 544, 566 
(1969). When Congress renewed section 5 in 1970 without change 
this Court concluded that such renewal confirmed the correctness 
of its decision in Allen, and thus applied section 5 to redistricting 
in Georgia v. United States.



40

Petitioners also attack the sufficiency of the Attorney 
General’s decision on the ground that it contained no find­
ing as to the purpose of the 1972 lines/® P.Br. 10, 42-43. 
But section 5 of the Voting Eights Act is not limited in 
its application to election laws that are motivated by racial 
malice. The Act requires that, prior to the enforcement of 
a new election practice or procedure, the state must prove 
that it “does not have the purpose and will not have the 
effect of denying or abridging the right to vote on account 
of race or color.” 42 U.S.C. § 1973c (Emphasis added). 
The regulations promulgated by the Attorney General in 
carrying out section 5 also require the state to establish 
that the submitted law “does not have a discriminatory 
purpose or effect.” 28 C.P.R. § 51.19. In City of Richmond 
V. United States, 422 U.S. 358 (1975), this Court recognized 
that section 5 forbids both discriminatory purpose and 
discriminatory effect and dealt with those issues separately.

Professor Glickstein’s Memorandum stated that “when 
any of these jurisdictions decide to alter their district 
lines, section 5 places the burden on them of proving that 
their redistricting plans have neither the purpose nor effect 
of racial discrimination. The Attorney General looks prin­
cipally to the potential effects of redistricting plans in mak­
ing his section 5 determinations . . . .” (Emphasis in orig­
inal). Virtually all of the objections entered by the At­
torney General since 1965 have been based on the effect of 
the proposed law, rather than its purpose.”  As this Court

This argument appears to have been unsuccessfully advanced 
in City of Petersburg v. United States, 410 U.S. 962 (1973). See 
Jurisdictional Statement, No. 74-865, pp. 13, 23, 23-24, nn. 10, 29.

Hearings Before the Subcommittee on Constitutional Rights 
of the Senate Judiciary Committee, 94th Cong., 1st Sess., p. 1039 
(1975).

”  See n. 47, supra. Counsel have been able to identify only a 
single instance in which the Attorney General based an objection 
on a discriminatory purpose. Letter of J. Stanley Pottinger to 
Luther L. Britt, June 2, 1975.



41

noted in Wright v. Council of City of Emporia, 407 U.S. 
451, 462 (1972), “The existence of a permissible purpose 
cannot sustain an action that has an impermissible effect.”

Petitioners urge, finally, that New York could not fashion 
a remedy for any defects in the 1972 lines unless those 
defects constituted violations of the Fourteenth and Fif­
teenth Amendments as defined in White v. Regester, 412 
U.S. 755 (1973).®* But this contention depends in its en­
tirety on treating as a legal nullity the Attorney General’s 
decision that the 1972 lines violated section 5 of the Voting 
Eights Act. Once the Attorney General determines that 
a redistricting plan transgresses the statutory standard 
established by the Voting Eights Act, the question whether 
the plan also transgresses constitutional standards has 
no independent legal significance. Section 5 was delib­
erately adopted to set a more stringent statutory standard 
for redistricting plans than had theretofore been required 
under the Constitution alone. During the 1969-70 hearings 
on renewal of the Voting Eights Act, the Attorney General 
repeatedly testified that a ban on any “discriminatory pur­
pose or effect” was broader than the unelaborated consti-

Neither the Fourteenth nor Fifteenth Amendment purports 
on its face to be limited to acts of deliberate discrimination. In 
Gray v. Sanders, 372 U.S. 368 (1963) and its progeny, as in White 
V. Begester, 412 U.S. 755, 765-69 (1973), this Court struck down 
district plans as unconstitutional solely because of their effect. In 
other areas of the law the courts have come to focus primarily on 
the potentially adverse impact of a challenged practice, regardless 
of its purpose. See Carmical v. Craven, 457 F.2d 582, 587 (9th 
Cir. 1971) (jury selection) ; Norwalk CORE v. Norwalk Rede­
velopment Agency, 395 F.2d 920, 931 (2d Cir. 1968) (urban 
renewal relocation); Hohson v. Hansen, 269 F.Supp. 401, 497 
(D.D.C. 1967) (pupil assignments).

®* The argument that the less stringent constitutional standards 
should be applied in section 5 eases was advanced, unsuccessfully, 
in City of Petersburg v. United States, 410 U.S. 962 (1973). See 
Jurisdictional Statement, No. 74-865, pp. 10, 23, 26.



42

tutional prohibition.®* In 1975 Senator Bayh noted in the 
debate leading to the extension of the Voting Eights Act 
that “Section 5 is designed to go beyond the constitutional 
standard required by the 14th and 15th amendments and 
is justified as necessary to put a stop to the practice of 
gerrymandering districts or adopting at-large systems so 
that blacks rarely or never win elections.” ®® Once a dis­
tricting plan has been held defective under the stringent 
test established by section 5, those defects can and must 
be remedied regardless of whether the plan is consti­
tutional.

Petitioners’ contention is, as a practical matter, fore­
closed by this Court’s decisions in Allen v. State Board of 
Elections, 393 U.S. 544 (1969) and Georgia v. United States, 
411 U.S. 526 (1973). In Allen the plaintiffs sought to en­
join the use of certain new election laws in section 5 juris­
dictions on the ground that the laws had not been approved 
by, indeed had not been submitted to, the Attorney 'General 
or the District Court for the District of Columbia. This 
Court held that use of the new procedures had to be en­
joined, regardless of their merits, if such approval had not 
been obtained. The Court istressed that in directing the 
district courts to enjoin implementation of the laws in­
volved it would not consider whether or not the changes 
have “a discriminatory purpose or effect . . . [W]e express 
no view on the merits of these enactments; we also em­
phasize that our decision indicates no opinion concerning 
their constitutionality.” 393 U.S. at 570-71. In Georgia v. 
United States the United States sued to enjoin the use of

Hearings before Subcommittee No. 5 of the House Committee 
on the Judiciary on H.E. 4249, 91st Cong., 1st Sess., p. 280 (1969); 
Hearings before the Subcommittee on Constitutional Eights of the 
Senate Committee on the Judiciary on Bills to Amend the Voting 
Eights Act, 91st Cong., 1st and 2d Sess., pp. 189-190 (1969-70).

5=121 Cong. Eee. S 13665 (Daily Ed., July 24, 1975).



43

new district lines; the lines had previously been submitted 
to and rejected by the Attorney General. The Court con­
cluded that, since the new lines were covered by section 5 
and lacked the requisite approval, their use must be for­
bidden. Again no inquiry was made, or warranted, into 
the merits of the plan. 411 U.S. at 541. In the instant case 
the failure of the Attorney General to approve the 1972 
district lines made their use per se unlawful, and any 
attempt to hold elections using these lines would have been 
enjoined by an appropriate federal court without consid­
eration of their constitutionality or the correctness of the 
Attorney General’s decision. Since New York was thus 
precluded from using the 1972 lines, it follows a fortiori 
that New York was free, and indeed obligated, to adopt 
legislation remedying the defects in those lines.

The only significant difference between the Attorney Gen­
eral’s objection in the instant case, and the dozens of objec­
tions entered by him in other reapportionment cases, is that 
the redistricting involved here occurred in a jurisdiction 
outside the South. Thus, petitioners insist that New York 
does not have the “history of official racial discrimination” 
that is common in southern cities like New Orleans. P. Br. 
49. They urge that the only basis for applying the Voting 
Eights Act to New York is not any substantive problem 
with the state’s literacy test, but only a minor difficulty 
regarding the right of Pnerto Ricans to bilingual ballots. 
P. Br. 47. Petitioners contend that white bloc voting can­
not be present here since blacks have won elections in 
white areas of California, Massachusetts, and other north­
ern states. P. Br. 32-33. Interveners maintain these con­
tentions are factually incorrect. The problems of racial 
discrimination in New York City, though more subtle than 
in other states, are equally serious, and the federal courts



44

have been compelled to deal with them in elections,®® pub­
lic employment,®’ private employment,®® and school segrega­
tion.®® Rescission of New York’s exemption from Voting 
Rights Act was successfully sought in 1974 on the grounds 
that its literacy test had had the same discriminatory im­
pact on non-whites in New York as had literacy tests in 
the South. See pp. 9-11, supra. The presence of white 
bloc voting against non-white candidates in New York is 
regrettably clear. See pp. 24-25, su/pra; App. 212-217.

More fundamentally, the Voting Rights Act was not in­
tended as a form of regional legislation, applying only to 
the South. The formula in section 4 literally covers the 
entire country, and Congress modified that provision in 
1970 for the express purpose of applying section 5 to New 
York. N.A.A.C.P. v New York, 413 U.S. 345 (1973). To 
adopt the distinctions urged by petitioners would be to 
render the Voting Rights Act a provision of “merely re­
gional application”. Keyes v. School District No. 1, 413 
U.S. 189, 219 (1973) (Powell, J., concurring and dissenting).

®® See, e.g., Coalition For Education v. Board of Elections, 370
F.Supp. 42 (S.D.N.Y. 1974), aff’d 495 F.2d 1090 (2d Cir. 1974).

®’ See, e.g.. Chance v. Board of Examiners, 458 F.2d 1167 (2d 
Cir. 1972) ; Vulcan Society v. Civil Service Commission, 490 F.2d 
387 (2d Cir. 1973).

See, e.g., Patterson v. Newspaper and Mail Deliverers’ Union, 
514 F.2d 767 (2d Cir. 1975); Rios v. Enterprise Association Steam- 
fitters, 501 F.2d 622 (2d Cir. 1974).

See, e.g.. Hart v. Community School Board, 383 F.Supp. ,699 
(E.D.N.Y. 1974), aff’d 512 F.2d 37 (2d Cir. 1975).



45

III.
The 1974 District Lines Were An Appropriate Remedy.

The appropriateness of the 1974 lines as a remedy for 
the discriminatory effect of the 1972 lines depends on 
the precise nature of the unlawful aspects of those earlier 
lines. The record before the Attorney General revealed 
three related problems. (1) The bulk of the compact and 
contiguous non-white community had been fragmented into 
small pieces which were paired with larger white areas in 
majority white districts. (2) The number of non-whites 
in majority white districts was several times higher than 
the number of whites in majority non-white districts. (3) 
The proportion of districts in which a non-white candidate 
would have a reasonable opportunity to win election was 
substantially lower than the proportion of the county 
population which is non-white. These problems are, as 
a practical matter, so interrelated that a solution to one 
would tend to solve the others as well.

In assessing whether any or all of these defects had 
been overcome by the 1974 lines, both New York and the 
Attorney General had to know for each district whether 
a majority of the eligible voting age population was white 
or non-white. 28 C.F.R. §51.10. Without this informa­
tion they could not determine whether a particular por­
tion of the non-white community was in a majority white 
or majority non-white district, whether a non-white candi­
date would stand a reasonable chance of election in a 
particular district, or whether the number of non-whites in 
majority white districts greatly exceeded the number of 
whites in majority non-white districts.

But the 1970 Census was conducted in such a way as 
to make it impossible to determine readily the white or



46

non-white eligible voting age population of a proposed 
district. The available census data presents three dis­
tinct problems. First, the proportion of the total white 
population in Kings County which is of voting age is 
approximately 20% higher than the proportion of the 
total non-white population which is of voting age. App. 
263. Second, because of a problem of double counting, 
there is uncertainty as to the racial composition of the 
total population of each district. The Census Bureau has 
devised two different methods of calculation: the “Feb­
ruary Formula,” which is a high estimate of the minority 
population, and the “January Formula,” a lower projec­
tion. The actual figure lies somewhere in between. App. 
265-268. Thus under the 1972 lines the 57th Assembly 
district was 61.2% non-white according to the February 
Formula and 50.3% according to the January Formula. 
App. 265-68. Third, these problems are compounded by 
the fact that the mobility rate among non-whites in Kings 
County is higher than among whites, so that a greater 
proportion of the former are ineligible to vote in pri­
mary elections because of New York’s unusual residence 
requirement. App. 264;®“ Rosario v. Rockefeller, 410 U.S. 
752, 759, n. 9 (1973). Both New York and the Attorney 
General were aware of these problems.®^

The figures used by the Legislature in the preparation 
of the 1974 lines were February Formula estimates not 
adjusted for differences in age distribution or mobility. 
The factual problem which confronted both the Attorney 
General and the Legislature was to estimate what level

®“ The columns in this table are incorrectly headed. The left 
column is the white population and the right column is the non­
white population.

See App. 98, 102, 219.



47

of unadjusted February Formula minority population cor­
responded to a 50% non-white eligible voting age popu­
lation. Under the circumstances it was reasonable to con­
clude that a district in which the white and non-white 
eligible voting age populations were equal would have 
an unadjusted February Formula non-white total popu­
lation in excess of 65%. Petitioners did not assert in the 
courts below that this statistical inference was inaccurate.

For the reasons set out in part I  of our argument it 
was not only possible but imperative for New York and 
the Attorney General, in considering whether proposed 
districts were free from the discriminatory defects of the 
1972 lines, to know for each district whether whites or 
non-whites were a majority of the eligible voting age 
population. I t is somewhat unclear precisely what statisti­
cal approach was used by New York to determine the voting 
age majority of a district. Petitioners urge there was a 
rigid 65% rule, but the new congressional district was less 
than 65% non-v/hite, App. 179. Moreover, the report of the 
Joint Ijegislative Committee states merely that the total 
population non-white majority should be “substantial.” 
App. 179. The United States expressly denies having taken 
any position as to what size non-white total population 
majority was comparable to equal voting age population.®^

In sum, the record does not demonstrate with certainty 
the exact statistical assumption underlying the 1974 lines. 
But the 1974 lines did substantially undo the discrimina­
tory etfect of the 1972 lines. Under the 1974 district lines 
the fragmentation of the minority community was signifi­
cantly reduced. The number of districts in which the non­
white eligible voting age population was at least equal 
to the white eligible voting age population, and in which a

' Brief For the United States In Opposition, p. 7.



48

non-white candidate would thus have a reasonable opportu­
nity to win election, was increased. The number of non­
white voters in predominantly white districts was lowered 
to a level roughly equal to the number of whites in predom­
inantly non-white districts.

Petitioners and the dissenting judge in the court of ap­
peals assail the alleged 65% “quota” as a device to assure 
non-white domination of the new districts or to guarantee 
non-white control while not “wasting” unnecessary minority 
voters.®® Such a device, whatever its constitutionality, is 
not present here. Any 65% standard, if indeed one was 
utilized, was only a guideline for projecting when white 
and non-white eligible voting age populations were equal 
and the resulting district would be one in which non-white 
candidates would enjoy a reasonably equal opportunity to 
win election to public office. I t certainly did not guarantee 
non-white domination or control. Non-white candidates 
were defeated in four of the five new districts; the only 
district which elected a non-white candidate was the 23rd 
Senate district whose total population was 71.1% non-white. 
App. 180. Petitioners urge that it would be unconstitu­
tional to go beyond lines that were “racially fair” to max­
imize non-white representation as a means of compensa­
tion for some past wrong. P. Br. 36-38. Whatever the 
validity of such a hypothetical plan, those simply are not 
the facts of this case. Both the interveners in opposing 
the 1972 lines, App. 231, and the Attorney General in ap­
proving the 1974 lines, App. 298, disclaimed any intent to 
maximize non-white representation. The Attorney General 
insisted:

[T]he Voting Eights Act does not guarantee that any
particular candidate be elected. . , . What it does do is

Petition 32a-50a; P.Br. 54-55.:



49

assure that the opportunity of the affected minorities 
to participate freely in the electoral process, and thus 
elect a candidate of their choice, should not be unlaw­
fully abridged. . . . The law does not require the state 
to “maximize” minority voting strength. . . .

App. 298 (emphasis added).

Non-whites do not enjoy excessive political power under 
the 1974 lines. Non-whites are 35.1% of the population, 
but under the 1974 plan they constitute a majority in only 
31.4% of the Assembly districts and 30.0% of the Senate 
districts. Only 22.8% of the present Assemblymen and 
20% of the Senators are non-white. See p. 26, supra. Non­
whites in Brooklyn enjoy, in relation to their proportion 
of the population, considerably less power than will non­
whites in Richmond under the plan approved last Term by 
this Court in City of Richmond v. United States. F ar 
from maximizing non-white voting strength, the 1974 lines 
fell considerably short of the demands of many non-whites®‘ 
and had only a minor effect on the outcome of the subse­
quent election. There is considerable question as to whether 
the 1974 lines succeeded in overcoming the minimization 
of minority voting strength that were the fatal defect in 
the 1972 lines; clearly the 1974 lines did not achieve more 
than that.

CONCLUSION

The procedures followed by the Attorney General in ob­
jecting to the 1972 lines, and the method used by the Legis­
lature in shaping the 1974 lines, were the same as those 
employed in more than 50 instances in which redistricting 
plans have been disapproved under section 5. This ap-

See App. 293-298.



50

plication of the effect clause to redistricting was sanctioned 
by this Court in Georgia v. United States, and was well 
known to Congress when it reenacted the Voting Eights 
Act in 1975. In the face of that renewal, grounded upon 
a congressional preoccupation with redistricting and an 
awareness of the particular facts of this case, there is noth­
ing in this case that would justify overturning the estab­
lished construction and mode of application of the Act. 
“To use the Fourteenth Amendment as a sword against 
such State power would stultify that Amendment.” Rail­
way Mail Association v. Corsi, 326 U.S. 88, 98 (1945) 
(Frankfurter, J., concurring).

For the above reasons the judgment of the court of ap­
peals should he affirmed.

Eespectfully submitted.

J a c k  Geebnbeeg

E e i o  S c h n a p p e e  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Respondents-Intervenors

L o u i s  H. P o k l a k

3400 Chestnut Street 
Philadelphia, Pa. 19174

Of Counsel



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