Lampkin v. Connor Appellants' Motion for Leave to File a Reply Brief and Reply Brief

    APPELLANTS’ MOTION FOR LEAVE TO FILE A 
REPLY BRIEF AND REPLY BRIEF

In the

MnxUb CUrntrl at kpprais
F ob the D istbict of Columbia 

No. 19,383

Daisy E. L ampkin, et al.,
Appellants,

— v.—

J ohn T. Connob, Secretary of Commerce, et al.,

Appellees.

APPEAL PROM AN ORDER OP THE UNITED STATES DISTBICT COURT 

FOR- THE DISTBICT OP COLUMBIA

W illiam C. Gardner
615 “ F ” Street, N.W. 
Washington, D. C.

Jack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York, N. Y.

Attorneys for Appellants
R ichard L. B anks 
W illiam R. Ming, Jr.
S. W . Tucker 
A . P. T ureaud 
A . W . W illis, J r .
Margaret B ush WVlson 

Of Counsel



I N D E X

PAGE

Motion for Leave to File Reply Brief ........ ..................  1

Reply B r ie f.............. -............................... ....... .....................  5

I. The Standing to Sue of Group I and Group II 
Appellants Is Unaffected by the Passage of 
the Voting Rights Act of 1965 ........................... 5

II. This Controversy Is Justiciable....................... . 11

III. Title V III of the Civil Rights Act of 1964 Is
Not Pertinent to Decision of This Case ...........  18

Table oe Cases

American Comm, for Protection of Foreign Born v. 
Subversive Activities Control Board, 380 U. S. 503 .... 11

Baker v. Carr, 369 U. S. 186.......................................12,13,14
Brown v. Board of Education, 347 U. S. 483 ...............  16

Colegrove v. Green, 328 U. S. 549 .............................. 14
Conley v. Gibson, 355 U. S. 41 ................................... . 10

Gray v. Sanders, 372 U. S. 368 .......................................12,13

Rainwater v. United States, 356 U. S. 590 ................... 21
Reynolds v. Sims, 377 U. S. 533 ...................................12,13

United States v. Muniz, 374 U. S. 150 ........................... 21
United States v. Wise, 370 U. S. 405 ............................... 21

Wesberry v. Sanders, 376 U. S. 1 ...........................12,13,14



n

PAGE

Table op

Constitutional and Statutory P rovisions

U. S. Const., Art. 1, §2, Cl. 1 ....................................... 16
Census and Apportionment Act of 1929 ............... 11,13, 20
Civil Eights Act of 1964, Title VIII, 78 Stat. 286 ....18,19, 20,

21, 22
2 U. 8. C. §2a ...................................................................... 17, 22
13 U. S. C. §141 ....................................... ,.......................... 17, 22
13 IT. S. C. §221....................................................................  19
42 IT. S. C. §§1971 et seq....................... .............................  19
Voting Rights Act of 1965 (Act of Aug. 6, 1965, 79 

Stat. 437) ........................................................ 1, 2, 5, 6, 7, 8, 9

Other A uthorities

Hearings before House Committee on the Judiciary 
on H. R. 7152, 88th Cong., 1st Sess. ser. 4, part 4
(1963) ................................................................................  19

Report of the President’s Committee on Registration
and Voting Participation (November 1963) ...........  11

IT. S. Code Congressional and Administrative News,
89th Cong., 1st Sess........................................................ .6, 20



Isr t h e

Hntteft States (Euart nf Appeals
F ob the D istbict of Columbia 

No. 19,383

Daisy E. L ambkin, et al.,
Appellants,

J ohn T. Connob, Secretary of Commerce, et al.,

Appellees.

MOTION FOR LEAVE TO FILE REPLY BRIEF

Appellants move the Court for leave to file the attached 
reply brief and as grounds for such relief state the fol­
lowing :

1. This is an appeal from a March 29, 1965 order of the 
United States District Court for the District of Columbia 
dismissing the complaint herein on the ground that ap­
pellants do not have standing to sue. Notice of appeal to 
this Court was filed April 18, 1965. Appellants’ brief was 
filed here July 23, 1965. Appellees filed their brief on Sep­
tember 3, 1965.

2. As a primary reason for affirming the order of the 
District Court, appellees’ brief urged that the Voting 
Rights Act of 1965, Public Law 89-110, 89th Cong. 1st Sess. 
(August 6, 1965), enacted subsequent to the decision below 
and the date appellants filed their brief, nullifies denial 
and abridgment of the franchise to the extent that ap­



2

pellants do not have standing to sue. Appellants dispute 
this contention, but because its disposition involves issues 
presently pending, or to be brought, before the United 
States Supreme Court, appellants moved, on or about Sep­
tember 15, 1965, for an order postponing oral argument 
of this appeal pending decision by the United States Su­
preme Court of the constitutional rights of citizens to vote 
in state elections without payment of a poll tax. On or 
about September 17, 1965, appellees filed a consent to the 
relief sought by the motion to postpone oral argument. 
However, appellees indicated disagreement with certain of 
appellants’ contentions as to the effect of the outcome of 
litigation pending before, or soon to be brought to, the 
Supreme Court, and on October 27, 1965, this Court, per 
Bazelon, Chief Judge, entered an order denying the motion 
to postpone oral argument on the ground of absence of 
consent to “ abide by the decision of the Supreme Court.”

3. Prior to the disposition of appellants’ motion to post­
pone oral argument, time for filing a reply under the rules 
of the Court expired. As appellees’ brief raised questions 
not fully discussed in appellants’ brief (because they re­
lated to the Voting Eights Act of 1965 which was enacted 
subsequent to the filing of that brief) unless this motion 
for leave to reply is granted, the court will not have an 
opportunity to consider appellants’ views as to the issues 
raised initially by appellees’ brief. In addition, appellees’ 
brief seeks affirmance on the basis of arguments raised be­
fore, but not relied upon by, the District Court. Unless 
this motion is granted, the court will not have an opportu­
nity to consider appellants’ views as to these issues.

4. This case involves decision of delicate, complicated 
and serious constitutional questions never before fully



3

presented to a United States Court. These questions touch 
the right to vote and the value of the votes of millions of 
Americans. Moreover, construction of a portion of the 
Constitution is sought. The Court should consider such 
matters on the basis of as full as possible a presentation 
and exploration of pertinent facts and authorities. The 
character of appellees’ brief is such that appellants re­
spectfully submit the court will be assisted, and justice 
served, by consideration of the attached reply brief.

5. The granting of this motion will in no manner cause 
prejudice, inconvenience, or loss to appellees. It will per­
mit the court to be guided by additional authorities wdien 
considering the issues raised herein.

W herefore appellants pray that the motion for leave to 
file a reply brief be granted and the reply brief attached 
hereto be filed with the Court.

Respectfully submitted,

W illiam C. Gardner
615 “F ” Street, N.W. 
Washington, D. C.

Jack Greenberg
James M. Nabrit, III
Michael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants

R ichard L. B anks 
W illiam R. Ming, J r .
S. W. Tucker 
A. P. T ureaud 
A. W . W illis, J r .
Margaret B ush W ilson 

Of Counsel





I n  th e

M <xt2$  C m irt n l A p p e a ls

F or the D istrict of Columbia 

No. 19,383

Daisy E. L ampkin, et al.,

Appellants,

J ohn T. Connor, Secretary of Commerce, et al.,

Appellees.

APPELLANTS’ REPLY BRIEF

I.

The Standing to Sue of Group I and Group II Appel­
lants Is Unaffected by the Passage of the Voting Rights 
Act of 1965.

In their brief appellees urged that the Voting Rights 
Act of 1965 (Act of August 6, 1965; 79 Stat. 437) nullifies 
denial and abridgment of the franchise as alleged by Group 
II appellants (Negro citizens of southern states) and, 
therefore, these appellants are no longer injured by ap­
pellees’ failure to enforce §2 of the Fourteenth Amend­
ment. It is urged that Group I appellants (voters from 
northern and eastern states) only assert the right to re­
dress dilution and the debasement of their votes to the ex­
tent Group II appellants have been injured, and that they 
are also without standing.



6

In considering the effect of the Voting Rights Act of 
1965 on the standing of Group I and Group II appellants, 
it must be noted that the Act itself does not remove all 
barriers to the exercise of the franchise alleged by ap­
pellants. Even if fully implemented and effective (ap­
pellants will argue below that it has not been fully imple­
mented and effective), it would only nullify certain denials 
of the franchise, e.g., literacy tests and constitutional in­
terpretation tests. The Act does not purport to nullify the 
poll tax requirement of Mississippi and Virginia which 
has denied and abridged the franchise of appellants Har­
ris, Mason, Gillis, L. McGhee, W. McGhee, and Hancock.

Enough citizens are denied or abridged the franchise by 
these poll tax requirements, as well as those of Alabama 
and Texas, to insure that these states would lose represen­
tatives (and states represented by Group I appellants gain 
representatives) if §2 of the Fourteenth Amendment is en­
forced. While the Attorney General has brought suit to 
eliminate the poll tax prerequisite for voting in state elec­
tions in these four states, the suits have not been decided 
in the lower courts and it cannot be assumed that the At­
torney General will be successful. Indeed, he testified be­
fore the Congress that there was a substantial risk that a 
congressional prohibition of state poll taxes would be de­
clared unconstitutional. See, e.g., U. S. Code Congressional 
and Administrative News, 89th Cong. 1st Sess., p. 2550. 
Moreover, the Act, §10 (d) specifically provides the pro­
cedure to be followed if the taxes are declared constitu­
tional. That a voting barrier is now—after this suit was 
filed and decided in the lower court—undergoing legal chal­
lenge is in itself of no consequence in appraising appel­
lants’ standing.



7

Appellees’ argument based on the Voting Rights Act, 
therefore, fails because the Act does not account for all 
denial and abridgment of the franchise asserted by appel­
lants. Whatever the effect of the Act on actual patterns 
of denial or abridgment of the franchise, it cannot be given 
effect which would remove the standing of all Group I 
appellants.1

With respect to state poll tax requirements, there is a 
serious error in appellees’ brief. On page 23 it states: 
“ Of course, the fourteen appellants from the northern 
states gain no “ standing” [from state poll tax require­
ments] . . . because voting for representatives to the United 
States Congress is not at all affected thereby.” The lan­
guage of §2 of the Fourteenth Amendment expressly states 
that the basis of apportionment of Representatives shall be 
reduced when the right to vote at any election “ for the choice 
of electors for President and Vice-President of the United 
States, Representatives in Congress, the Executive and 
Judicial officers of a state or the Members of the Legis­
lature thereof is denied.”  (Emphasis supplied.) Thus, 
appellants clearly would gain Representatives in Congress 
from a requirement of payment of a poll tax in state elec­
tions, for such a requirement denies and abridges the 
franchise within the meaning of §2 and would lead to a 
reduction of the basis of apportionment of the poll tax 
states.

But even if the Voting Rights Act did nullify state poll 
taxes it could not deprive appellants of standing. Ap­
pellees’ brief asks the Court to treat the Voting Rights 
Act as if it had in fact removed all barriers to Negro

1 Of course, under appellees’ theory that Group I and Group II 
appellants have an identity of interest, standing for Group I 
appellants would mean standing for Group II appellants.



8

voting in the South, but elimination of pervasive racial 
discrimination in southern voting prior to the next census 
is not the certainty appellees would have the Court find. 
While there has been a modest increase in registration in 
a small number of counties, it has been estimated that 
over three million Negroes in affected states remain unreg­
istered. When compared to the total number of Negroes 
whose franchise has been denied and is still denied by 
intimidation, failure to permit registration, poll taxes, 
failure to abide by the terms of the Voting Act and other 
state requirements, the effect of the Act has been slight. 
According to the New York Times, October 30, 1965, p. 1, 
October 31, 1965, §4, p. 4, the increase has been less than 
166,000, and despite the hundreds of southern counties with 
documented histories of discriminatory voting practices, 
only 32 federal registrars have been appointed.

To the extent the question of appellants’ standing turns 
on the existence of denial and abridgment of the franchise, 
appellees’ position is wishful thinking. It goes without 
saying (and without referring to the well-known conditions 
which prompted Congress to pass the Act) that the mere 
passage of the Act, in and of itself, cannot be taken to 
end denial of the franchise. Unsuccessful attempts to end 
discrimination against Negro voting are as old as the Four­
teenth and Fifteenth Amendments. In the last analysis, 
the effectiveness of the Voting Eights Act of 1965 is a 
question of fact of the sort determined by district courts 
on full records and not an appropriate matter for this 
Court to determine as a matter of law. For this reason, 
appellees’ whole standing argument is flawed. On the one 
hand, they seek to keep appellants from a hearing on the 
factual issues of the case, including allegations of disfran­
chisement; on the other, they rely in this Court on the



9

actual effectiveness of the Voting Rights Act of 1965 in 
ending denial and abridgment of the franchise.

Even if the Act affected the standing of all Group II 
appellants (which it does not), it would not thereby affect 
the standing of Group I appellants. These appellants as­
sert that the failure of appellees to administer duties to 
apportion in a constitutional manner results in their con­
gressmen representing more persons than congressmen 
from states which deny or abridge the right to vote as 
specified in §2 of the Fourteenth Amendment; and that 
their state would receive at least one additional represen­
tative in Congress if §2 is enforced, thereby resulting in 
an increase in the value of each appellant’s vote. Because 
much of the denial of the franchise which gives rise to 
the injury claimed by Group II appellants takes place in 
states affected by the provisions of the Voting Rights Act 
of 1965, appellees in their brief attempt to identify the 
standing of Group II appellants with the standing of Group
I appellants, and they urge that if Group II appellants do 
not have standing because of the Act, Group I appellants 
do not have standing. As has been shown above, Group
II appellants have standing (even if one assumes the Vot­
ing Rights Act has actually ended racially discriminatory 
literacy tests and similar devices) because it does not sus­
pend the operation of state poll taxes. But even if Group 
II appellants were for some reason without standing, it 
does not follow that there is no injury to Group I appel­
lants: Group I appellants alleged facts establishing dis­
crimination against Negroes in southern states in order 
to show that they are injured by the failure of appellees 
to enforce §2 of the Fourteenth Amendment. The instances 
of denial of the franchise alleged in the complaint were 
obviously chosen because at the time it was drafted they



10

were the most obvious demonstration of the injury suf­
fered. But Group I appellants did not thereby suggest 
that these were the only restrictions on the franchise which 
gave rise to the injury for which they sought redress. The 
complaint is broad enough to encompass all denials or 
abridgment of the right to vote which work, if §2 is en­
forced, to increase the representation of Group I appellants. 
Cf. Conley v. Gibson, 355 U. S. 41.

Group I appellants cannot be restricted to those incidents 
of denial of the franchise alleged in a complaint filed two 
years prior to the passage of the Voting Rights Act of 
1965. At the time the complaint was drafted, proposal of 
the Act, much less its adoption, was unlikely. Unreason­
able residence requirements, intimidation, refusal to proc­
ess applications for registration or the processing of such 
applications at an extremely slow rate, state poll taxes, 
use of tests and devices (such as literacy tests) in states 
not covered by the Voting Rights Act and, most important, 
the possibly ineffective administration of the Voting Rights 
Act of 1965 will still result in the reduction of the basis 
of apportionment of certain states if §2 is enforced in 1970.

It would be lacking in fairness to reject the standing of 
appellants on the basis of new legislation, not considered 
below, while at the same time holding appellants to plead­
ings drafted prior to the passage of the statute on which 
reliance is placed. The philosophy of pleading of the Fed­
eral Rules of Civil Procedure is contrary to such a dis­
position; Group I appellants are entitled to consideration 
of their claim of injury due to nonenforcement of §2 in the 
broadest possible context. Rather than such a disposition 
the Court should at the least remand to the District Court 
in order to permit Group I appellants to amend their plead­
ing to show persistence of denial or abridgment of the



11

right to vote and the manner they are thereby injured. 
Cf. American Comm, for Protection of Foreign Born v. 
Subversive Activities Control Board, 380 U. S. 503, 505. 
See Report of the President’s Commission on Registration 
and Voting Participation (November, 1963) which de­
scribes the denial and abridgments of the franchise which, 
combined with other factors, keeps more than 40% of the 
eligible voters of this country from exercising their right 
to vote. Many of the denials of the franchise discussed in 
this Report reduce the basis of apportionment within the 
meaning of §2 of the Fourteenth Amendment.

Of course, appellants do not favor such a remand. It is 
their position, for reasons stated elsewhere in this reply 
brief and in appellants’ brief, that Group I and Group II 
appellants clearly have standing and that the case should 
be remanded for a full trial. If, however, the Court accepts 
appellees’ theory of the effect of the Voting Rights Act 
of 1965, it is respectfully submitted that Group I appel­
lants are entitled to amend their pleading..

II.

This Controversy Is Justiciable.

The overriding purpose of the Census and Apportion­
ment Act of 1929, which with minor modifications governs 
apportionment today, was to delegate responsibility for 
decennial apportionment. Appellants urged below that the 
Act be construed in accordance with the Constitution and 
that this suit not be dismissed on the ground of supposed 
interference with Congress. The district court rejected 
appellees’ theory that this suit posed a non-justieiable 
“ political question,” for in its alternative holding, the Court 
construed the Census and Apportionment Act, although



12

not in the manner urged by appellants. Appellees, how­
ever, raise the question of justiciability once more, neces­
sitating consideration of the issue.

For all the potential consequences of this litigation, the 
conflicts which call for application of the political question 
doctrine are simply not present in this case. Appellees are 
Executive officers with total statutory authority to com­
plete a decennial apportionment of representatives which 
becomes the apportionment if Congress fails to act. A 
declaratory judgment setting forth their responsibility to 
comply with constitutional requirements when carrying out 
their functions with respect to apportionment does not in­
volve a conflict with Congress to which the “political ques­
tion” doctrine applies (at least no more so than any 
declaration of the duties of administrative officials in light 
of constitutional provisions).

First, any doubts with respect to the lack of application 
of the “political question” doctrine to this case should be 
resolved by reference to the views of the Justice who may 
be the foremost exponent of the doctrine on the present 
Supreme Court. In a number of cases decided June 15, 
1964, the Court held that the equal protection clause of 
the Fourteenth Amendment requires the states to struc­
ture their legislatures so that they reflect population and 
the members of both Houses represent substantially the 
same number of people. Other factors may be considered 
only to the extent that they do not significantly encroach 
on the basic population principle. Mr. Justice Harlan dis­
sented in these cases. Previously he had registered dissent 
relying, in part, on the “ political question”  doctrine in 
Wesberry v. Sanders, 376 U. S. 1; Gray v. Sanders, 372 
U. S. 368; and Baker v. Carr, 369 U. S. 186. In his June 15, 
1965 dissenting opinion, however, see Reynolds v. Sims,



13

377 U. S. 533, 589, lie relied on the remedy provided by 
§2 of the Fourteenth Amendment to dispute the majority’s 
view that the equal protection clause of §1 of the Four­
teenth Amendment prohibited legislative districting which 
did not provide for equivalent population:

Whatever one might take to be the application to these 
cases of the equal protection clause if it stood alone, 
I  am unable to understand the Court’s utter disregard 
of the second section which expressly recognizes the 
states’ power to deny “ or in any way” abridge the 
right of their inhabitants to vote for “ the members 
of the [State] Legislature” and its express provision 
of a remedy for such denial or abridgment. The com­
prehensive scope of the second section and its par­
ticular reference to the State Legislatures preclude 
the suggestion that the first section was intended to 
have the result reached by the Court today. (Emphasis 
supplied.) (Reynolds v. Sims, 377 U. S. at 594.)

It is of great significance that the sole Justice who dis­
sented in Baker v. Carr, supra; Cray v. Sanders, supra; 
and Wesberry v. Sanders, supra, takes the view that §2 of 
the Fourteenth Amendment provides a comprehensive 
“ remedy” for malapportionment, for he may be the strictest 
adherent of the theory proposed by defendants with respect 
to the justiciability of this case.

Second, appellees’ argument with respect to nonjusticia­
bility is put to rest conclusively by Wesberry v. Sanders, 
supra. It is difficult to understand upon what theory courts 
would be dealing with a “political question” when declaring 
that officials of the Executive branch have a duty to ap­
portion in accordance with ^2 (or that provisions of the 
Census and Apportionment Act which fail to authorize



14

such apportionment are unconstitutional), and not be deal­
ing with a “ political question” when holding that repre­
sentatives in Congress must be elected from congressional 
districts drawn so that one man’s vote is worth as much 
as another’s and providing a judicial remedy to enforce 
this right. In Wesberry, supra, 376 U. S. at 6, 7, the 
court stated explicitly that cases involving congressional 
apportionment are justiciable. Mr. Justice Frankfurter’s 
argument in Colegrove v. Green, 328 U. S. 549, was re­
jected. The areas wherein the “political question” doctrine 
still lives are described at length in Baker v. Carr, 369 
U. S. 186, 211, but none of the situations or cases described 
in that opinion compare to this case. If appellants are 
not entitled to relief, or are only entitled to a part of the 
relief they seek, then such should be the decision of this 
case on the merits, not the basis for refusal to deal with 
the great constitutional provision before the Court. Sec­
tion 2, in short, should be construed; not relegated to a 
vacuum where its meaning and effect are to be perma­
nently undecided.

Third, appellees lay stress on the fact that while §2 of 
the Fourteenth Amendment sets out the conditions calling 
for the reduction of a state’s representation, it does not 
specify how to go about determining whether such condi­
tions exist. In so doing they ignore the express allegations 
of the complaint that determination of the extent of denial 
and abridgment of the franchise is a matter which the 
Census Bureau can determine with no greater difficulty than 
it experiences in other census inquiries. Congress, for ex­
ample, does not specify how to go about determining 
whether and to what extent “ unemployment”  exists within 
the meaning of a number of federal statutes. This is a 
matter which is determined by the Bureau of the Census.



15

Appellants filed in the court below a long and detailed 
affidavit from an eminent statistician, and former official 
of the Bureau, stating that the affidavit of former Director 
of the Bureau of the Census, Bichard M. Seammon, filed by 
appellees, was incorrect and misleading in its substantial 
and material allegations. Dr. A. ,J. Jaffe concluded that 
the Bureau could make the determinations required for 
enforcement of §2 with accuracy, and, at oral argument in 
the district court, appellees represented that as a practical 
matter only adequate appropriations—never sought by ap­
pellees— stand in the way of enforcement of §2. It is, there­
fore, inappropriate for appellees to suggest, or for the court 
to accept, a rule of decision in this case which assumes 
facts contrary to the complaint or which accepts one affi­
davit against the other. The argument of appellees’ brief 
on this issue, at pp. 32-35, to the extent it challenges the 
capacity of the Bureau of Census to enforce §2, is quite 
beside the point. The alternative holding of the district 
judge that summary judgment would be appropriate can­
not be upheld on the basis of facts which are in dispute.

Fourth, appellees urge that enforcement of §2 requires 
congressional action, that Congress has not implemented 
it, and that, therefore, the court cannot reach the merits of 
this controversy. This argument merely assumes the con­
clusion it seeks the Court to adopt. The remainder of the 
provisions of the Fourteenth Amendment, as well as other 
constitutional provisions, are applied by the courts to strike 
down state action which violates their terms. Appellees, 
for example, offer no meaningful distinction between §1 
and §2 of the Fourteenth Amendment.

Nor are questions involving the implementation of §2 
non-justiciable because §2 is without standards. Broad con­
cepts such as due process of law or equal protection of the



16

laws contain, in fact, fewer standards than §2. Section 2, 
moreover, must be considered a far more likely candidate 
for judicial enforcement than the due process or equal pro­
tection clauses. To be sure, like all constitutional provi­
sions it requires construction, but §2 is precise about the 
result it commands. The legislators who formulated what 
was to become §2 of the Fourteenth Amendment had a defi­
nite end in mind. When compared to the vague and open- 
ended due process and equal protection clauses (see the 
discussion of §1 of the Fourteenth Amendment in Brown 
v. Board of Education, 347 U. S. 483, 489, 490) §2 is clearly 
capable of construction and enforcement.

Section 2 also contains explicit standards when compared 
to other provisions of the Constitution which are judicially 
enforced. In Wesberry v. Sanders, supra, for example, the 
Supreme Court struck down a congressional apportionment 
on the basis of that portion of Art. 1, §2, Cl. 1 of the Fed­
eral Constitution which states that Congressmen shall be 
chosen “by the people of the several states” and construed 
this provision to require, that as nearly as practicable, one 
man’s vote in a congressional election must be worth as 
much as another’s. It would be totally unreal and incon­
sistent to hold that the Art. 1, §2, Cl. 1 provision requir­
ing Congressmen to be chosen “by the people of the several 
states” was judicially enforceable and that the provisions 
of §2 of the Fourteenth Amendment were not.

The present apportionment process established by Con­
gress, delegated to and carried out completely by the Execu­
tive branch, provides for the decennial census count author­
ized by Art. 1, §2, Cl. 3 of the Constitution. The Bureau of 
Census counts the population in each state and certifies a 
statement, not later than December 1 of the decennial year, 
of the population in each state and the number of repre­



17

sentatives to which each state would be entitled under an 
apportionment of the existing number of representatives 
by the mathematical method known as the method of equal 
proportions, 2 U. S. C. §2a; 13 U. S. C. §141. Within 15 
calendar days after the statement has been delivered to 
the Congress by the President, the Clerk of the House of 
Representatives sends to the Governor of each state a cer­
tificate showing the number of Representatives to which 
his state will be entitled at the beginning of the following 
Congress.

Under this apportionment procedure there is no lack of 
opportunity on the part of appellees to comply with the 
constitutional requirements of §2. Once the facts of denial 
and abridgment are gathered, the statement need only be 
completed by taking them into account. To the extent ac­
tual disfranchisement statistics, or the actual apportion­
ment of Representatives, dissatisfies the Congress that 
body may refuse to accept any apportionment based thereon 
and may reapportion itself, for the relief appellants seek 
does not interfere with the power of Congress to reap­
portion or to amend the present apportionment scheme.



18

III.

Title VIII of the Civil Rights. Act of 1964 Is Not 
Pertinent to Decision of This Case.

Appellees also urged that Title V III of the Civil Rights 
Act of 1964, 78 Stat. 286, which authorizes the collection 
of certain statistics, shows that Congress has sought to 
enforce §2 only in the manner provided by Title V III.2 
This position is not well taken. Analysis of its text reveals 
that it is impossible to enforce §2 of the Fourteenth Amend­
ment with information gathered under authority of Title 
VIII.

First, Title V III relates only to certain geographical 
areas and, therefore, as §2 requires a national measure­
ment of denial or abridgment of the right to vote, is to­
tally incapable of serving as a vehicle to enforce §2 of the 
Fourteenth Amendment.

2 “ The Secretary of Commerce shall promptly conduct a survey 
to compile registration and voting statistics in such geographic 
areas as may be recommended by the Commission on Civil Rights. 
Such a survey and compilation shall, to the extent recommended 
by the Commission on Civil Rights, only include a count of per­
sons of voting age by race, color, and national origin, and determi­
nation of the extent to which such persons are registered to vote, 
and have voted in any statewide primary or general election in 
which the Members of the United States House of Representatives 
are nominated or elected, since January 1, 1960. Such information 
shall also be collected and compiled in connection with the Nine­
teenth Decennial Census, and at such other times as the Congress 
may prescribe. The provisions of section 9 and chapter 7 of title 13, 
United States Code, shall apply to any survey, collection, or com­
pilation of registration and voting statistics carried out under 
this title: Provided, however, that no person shall be compelled 
to disclose his race, color, national origin or questioned about his 
political party affiliation, how he voted, or the reasons therefore 
[sic], nor shall any penalty be imposed for his failure or refusal 
to make such disclosure. Every person interrogated orally, by 
written survey or questionnaire or by any other means with respect 
to such information shall be fully advised with respect to his right 
to fail or refuse to furnish such information.”



19

Second, Title V III is limited to information concerning 
racial discrimination. Section 2 of the Fourteenth Amend­
ment includes all denial or abridgment of the franchise.

Third, Title V III does not permit Census to compel 
respondents to answer as opposed to traditional Census 
legislation (13 U. S. C. §221) and, therefore, may well 
be ineffective in even obtaining the limited information 
sought by its terms.

Fourth, Title V III is limited to questions relating “ only” 
to the number of persons registered or not registered and 
does not by its terms admit questions going to the causes 
of non-registration. Clearly, without the reasons for non­
registration being obtained, §2 of the Fourteenth Amend­
ment cannot be enforced.

The legislative history, moreover, supports the inference 
that the dominant purpose of Title V III was to provide 
statistics which would help the Congress enact legislation 
with respect to and to appraise the success of voting leg­
islation such as the Civil Bights Acts of 1957 and 1960 and 
Title I of the Civil Rights Act of 1964. See 42 U. S. C. 
§§1971 et seq. For example, Attorney General Kennedy 
testified before the full Judiciary Committee with respect 
to Title V III that “ such a survey should prove helpful to 
the Congress in assessing the dimensions of discrimination 
in voting and aid in measuring the pace of progress in its 
elimination.” Hearings before the House Committee on the 
Judiciary on H. R. 7152, 88th Cong., 1st Sess. ser. 4, part 4 
at 2661 (1963). Indeed, Congressman McCulloch who in­
troduced Title V III (H. R. 3139; see Hearings, id., at p. 69) 
did not mention §2 at all and stressed that lack of regis­
tration statistics hampered fact-finding by the Civil Rights 
Commission and Department of Justice voting discrimina­



20

tion suits. See Additional Views on H. R. 7152, U. S. Code 
Congressional and Administrative News (July 20, 1964) 
pp. 1889, 1890. The majority report of the Judiciary Com­
mittee gives no particular reason for the inclusion of Title 
V III other than what is apparent from the Title’s lan­
guage, and the minority report similarly fails to mention 
§2 of the Fourteenth Amendment.

The legislative history of Title V III does not establish 
the propositions for which defendants cite it, for there is 
no indication in the legislative history of Title V III that 
any Congressman thought it would affect the existing ap­
portionment scheme. To be sure, certain Congressmen, 
hopeful of a complete and full enforcement of §2 of the 
Fourteenth Amendment, supported Title V III on the 
grounds that it was a step in the right direction, but the 
legislative history is barren of any indication that they, 
or opponents of Title VIII, considered it to substitute for, 
or in any manner affect, the statutory scheme formulated 
in the Census and Apportionment Act of 1929. At the most, 
they saw Title V III as relating to (without articulating 
the relationship) congressional enforcement of §2, some­
thing appellants do not contend Congress cannot do in 
ways other than that which can arise from judicial en­
forcement of law predating Title VIII.

Appellees, however, asked the Court to avoid construc­
tion of the 1929 Census and Apportionment Act on the 
sub silentio assumption of certain Congressmen in 1964 
that the 1929 Act did not effectively enforce §2. The in­
adequacy of this argument is demonstrated by the fact 
that the Bureau of the Census has failed to enforce §2 
in the years subsequent to 1929. It is, therefore, quite 
obvious that Congressmen interested in enforcing §2 might



21

support any measure related to collection of voting sta­
tistics as a step in the right direction. Their support of 
Title V III tells us only that §2 has not in fact been en­
forced, not their view as to whether the Bureau of Census 
has been authorized to enforce it.

Statutes, moreover, are construed with reference to cir­
cumstances existing at the time of their passage and not 
on the basis of what subsequent Congresses may have 
thought them to mean. In other words, unless the Congress 
enacting Title V III sought to amend the pre-existing census 
and apportionment scheme (and appellees do not make 
this claim), no inference may be drawn from its passage 
which could be taken to alter that scheme. A number of 
decisions of the United States Supreme Court establish 
this proposition beyond dispute. In Rainwater v. United 
States, 356 U. S. 590 (1958), the question before the Court 
was whether the term “ the Government of the United 
States” as used in the False Claims Act included the 
Commodity Credit Corporation. The False Claims Act 
was enacted in 1863 and later amended in 1918 to apply 
explicitly to corporations in which the United States was 
a stockholder. It was argued that the 1918 amendment 
showed that the Act had not previously covered govern­
ment corporations. This contention was rejected by a 
unanimous Court: “At most, the 1918 Amendment is merely 
an expression of how the 1918 Congress interpreted a stat­
ute passed by another Congress more than a half a century 
before. Under these circumstances such interpretation has 
very little significance.” Id. at p. 593. (Emphasis supplied.) 
The point is made with equal force in United States v. 
Muniz, 374 U. S. 150,158 n. 14 (1963) and in United States 
v. Wise, 370 U. S. 405, 411 (1962) and the cases cited 
therein.



22

In conclusion, construction of 2 U. S. C. §2(a), 13 U. S. C. 
§141, and the entire statutory scheme which governs ap­
portionment cannot be avoided on the basis of inferences 
culled from the legislative history of Title V III of the 
Civil Rights Act of 1964.

Respectfully submitted,

W illiam C. Gardner
615 “ F ” Street, N.W. 
Washington, I). C.

J ack Greenberg 
J ambs M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants
R ichard L. Banks 
W illiam R. Ming, Je.
S. W . T ucker 
A. P. T ureaud 
A. W . W illis, Jr.
Margaret B ush W ilson 

Of Counsel

CERTIFICATE OF SERVICE

I hereby certify that on November 1965, I served 
copies of the foregoing Motion for Leave to File Reply 
Brief and Reply Brief on attorneys for appellees, John 
Douglas, J. William Doolittle, Richard S. Salzman, at the 
Department of Justice, Washington, D. C. by depositing 
same in the United States Mail, airmail, postage prepaid.

Attorney for Appellants



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