Lampkin v. Connor Opinion

    Imted States (£mxt of Appeals
FOE THE DISTRICT OF COLUMBIA CIRCUIT

No. 19,383

D aisy E. Lampkin, et al., appellants, 

v.

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

Appeal from tlie United States District Court 
for the District of Columbia

Decided April 14, 1966

Mr. Jack Greenberg, of the bar of the Court of Appeals 
of New York, pro Jiac vice, by special leave of court, with 
whom Messrs. William C. Gardner, James M. Nabrit, III. 
William R. Ming, Jr., and A. P. Tureaud were on the 
brief, for appellants.

Mr. J. William Doolittle, Attorney, Department of Jus­
tice, with whom Assistant Attorney General Douglas, Mr. 
David G. Acheson, United States Attorney at the time 
the brief was filed, and Messrs. Morton Hollander and 
Richard 8. Salsman, Attorneys, Department of Justice, 
were on the brief, for appellee.



2

Before Edgerton, Senior Circuit Judge, and F ahy and 
M cG o w a n , Circuit Judges.

McGowan, Circuit Judge: This is an appeal from the 
dismissal of a complaint under the Declaratory Judgment 
Act. 28 U.S.C. §§ 2201-02. Appellants sought in the Dis­
trict Court a determination that appellees, in their official 
capacities as Secretary of Commerce and Director of the 
Census, are required to implement the provisions of Sec­
tion 2 of the Fourteenth Amendment,1 which contemplates 
a reduction in the basis of a state’s representation in 
Congress when that state denies or abridges the right to 
vote. For the reasons appearing hereinafter, we do not 
reinstate the complaint.

I
Appellants, who brought this action on behalf of them­

selves and others similarly situated, Rule 23 (a) (3) F ed. 
R. Civ. P., comprise two groups by their own designation. 
The so-called Group I appellants are registered voters 
from Pennsylvania, Massachusetts, Missouri, Illinois, 
Ohio, and California. They assert that, if apportionment 
were to be effected in accordance -with the literal com­

1 “Representatives shall be apportioned among the several 
states according to their respective numbers, counting the 
whole number of persons in each State, excluding Indians 
not taxed. But 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 Execu­
tive and Judicial officers of a State, or the members of the 
Legislature thereof, is denied to any of the male inhabitants 
of such State, being twenty-one years of age, and citizens 
of the United States, or in any way abridged, except for 
participation in rebellion, or other crime, the basis of repre­
sentation therein shall be reduced in the proportion which 
the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State.”



3

mands of Section 2, the alleged denials and abridgements 
of the right to vote by certain other states would compel 
a reduction in the representation of those latter states, 
and a corresponding increase in the representation of 
their own. Since appellees do not presently provide the 
necessary statistical basis for such reapportionment, the 
Group I appellants claim that (1) their congressmen rep­
resent more persons than the congressmen from states 
which deny or abridge the right to vote, (2) the value of 
their votes is consequently diluted in violation of their con­
stitutional rights, and (3) enforcement of Section 2 is 
necessary in order to protect their votes from such dilution.

The remaining appellants classify themselves as Group 
II. They are citizens of Virginia, Mississippi, and Loui­
siana, claiming to be qualified voters in all respects except 
that various discriminatory practices, including literacy 
tests and poll tax requirements, deprive them of their 
right to vote. They invoke Section 2 in order to deter 
the deprivations which they are allegedly suffering.

All appellants point out that, under the relevant statutes,2 * * * 6 
appellees are presently charged with the responsibility 
for compiling a tabulation of the population for the pur­
poses of representation, preparing a statement showing

2 2 U.S.C. §§ 2(a), 6; 13 U.S.C. §§ 4, 5, 11, 21, 141. 2
U.S.C. § 2(a) provides that the President shall transmit an
apportionment statement to Congress showing the number of
representatives to which each state is entitled. 2 U.S.C. §
6 declares that the number of representatives apportioned 
shall be reduced in accordance with Section 2 of the Four­
teenth Amendment. 13 U.S.C. §§ 4, 5, and 141 variously 
authorize the Secretary of Commerce to take the census, to 
tabulate “ total population by States as required for the 
apportionment of Representatives . . to report to the 
President, and to delegate his functions. 13 U.S.C. § 11 
authorizes the appropriations needed to carry out these pro­
visions, and 13 U.S.C. § 21 provides for the appointment 
of a Director of the Census.



4

the representation to which each state is entitled, and 
submitting that statement to the President for transmittal 
to Congress.3 They contend that these laws, properly con­
strued, also require appellees, contrary to their present 
practice, to take into account whatever reduction in rep­
resentation may be required by Section 2 of the Four­
teenth Amendment; and that, if these statutes be viewed 
as not embodying this requirement, they must be declared 
void and of no effect as unconstitutional. The complaint 
prays for a declaration that appellees are now required
(1) to take steps to compile statistics in the 1970 census 
on the denial and abridgement of the right to vote, and
(2) thereafter to prepare an apportionment statement 
based upon such statistics for submission to the President 
and ultimate transmittal to Congress. In the event such 
a reading of the statutes is not made, the complaint asks 
that the existing statutes relating to the administration 
of the census and the preparation of the apportionment 
statement be invalidated.

Appellees filed a timely motion to dismiss or, in the 
alternative, for summary judgment. This motion asserted 
that appellants lacked standing to sue, a justiciable con­
troversy was absent, and the complaint failed to state a 
cause of action for which equitable relief is available. 
Attached to the motion was an affidavit of the then Direc­
tor of the Census to the effect that the compilation of 
the statistics demanded by appellants was not feasible. 
In opposing the motion, appellants submitted a counter­
affidavit contradicting the Director’s assertions in this 
regard.

The District Court, being of the view that, under 3

3 Appellants assert that “while it is the President who 
transmits the figures to Congress, he is merely a conduit 
for the statement prepared, compiled and computed by the 
Secretary and Bureau of the Census.”



5

Frothingham v. Mellon, 262 U.S. 447 (1923), both groups 
of appellants lacked standing to sue, granted the motion 
to dismiss. As to the Group I appellants, the court re­
garded as sheer speculation their allegations that increased 
representation of their states was a likely consequence 
of the relief sought. In any event, the claimed dilution 
of the value of their vote was viewed bĵ  the court as 
shared with millions of other voters in other states where 
the. right to vote is neither abridged nor denied. The 
Group II appellants were thought to be in no better 
position. The possibility that the relief requested would 
serve as a meaningful deterrent to the alleged denials 
and abridgements of voting rights was, to the court, too 
remote and speculative to found judicial intervention.

Although the order appealed from is limited to a grant 
of the motion to dismiss, the District Court volunteered 
the further opinion that, even if appellants had standing, 
summary judgment in favor of appellees would be appro­
priate. It did not regard appellees as under a statutory 
dutj  ̂ to compile the statistics and submit the apportion­
ment statement demanded; 4 nor did it regard the omission 
of any such duty as rendering the legislation unconstitu­
tional. United States v. Sharrow, 309 F.2d 77 (2d Cir. 
1962), cert, denied, 372 U.S. 949 (1963), was cited by the 
court to support its view that the census machinery was 
not the constitutionally requisite channel for carrying out 
the purposes of Section 2 of the Fourteenth Amendment.

4 Reliance was placed upon (1) the language of 2 U.S.C. 
§ 2(a) which requires the President to transmit to Congress 
an apportionment statement showing “the whole number 
of persons in each state, excluding Indians not taxed . . . .” 
(emphasis added) ; (2) the failure to effect amendments to 
the Census and Reapportionment Act which would have re­
quired the compilation of statistics to enforce Section 2; and
(3) various legislative and judicial statements that Section 
2 has never yet been implemented by Congress.



6

Immediately in issue on this appeal is appellants’ con­
tention that the District Court erred in dismissing their 
complaint, either for lack of standing or non-justiciability. 
We sherry v. Sanders, 376 U.S. 1 (1964), and other reappor­
tionment cases are said to establish beyond any doubt 
the standing of the Group I appellants to protect the 
full weight of their right to vote.5 And the Group II 
appellants have standing, so it is said, because Section 2 
of the Fourteenth Amendment was directed at protecting 
the very rights of an individual and personal nature 
which these particular appellants are asserting. If, we 
are told, these latter appellants do not have standing to 
invoke, Section 2, then it is unlikely that any one does. 
Contrary to the view of the court below, appellants insist 
that the threat of breathing life into Section 2 would be 
of great practical utility in securing greater recognition 
of their rights to vote. The doctrine of standing does not, 
in this submission, require a shoving of absolute cer­
tainty of success.

In response, appellees argue that standing is lacking 
because the recent civil rights legislation either has 
removed or is fast removing the barriers to voting of 
which appellants complain. By the 1970 census it is 
likely, they contend, that these barriers will be eliminated. 
Alternatively, they argue that dismissal was proper, even 
if standing existed, because a non-justiciable question is 
involved, since apportionment is a duty which has been 
constitutionally entrusted to Congress, with an unreview- 
able discretion as to how it is to be accomplished. In 
enacting the recent civil rights legislation, culminating

II

5 Cases allowing taxpayers to challenge the apportionment 
of taxes among the states are also cited to support appel­
lants’ contention that voters have standing to challenge the 
apportionment of representatives.



7

in the Voting Rights Act of 1965, Congress has selected 
its own method of insuring the right of all citizens to vote. 
Whatever Baker v. Carr, 369 U.S. 186 (1962), did to limit 
the political question doctrine with respect to the intru­
sion of the federal judiciary into matters of state gov­
ernment, it is claimed to have no relevance to cases 
involving the relationship of co-equal branches of the fed­
eral government. In any event, the determination of 
whether, within the meaning of Section 2, an individual 
has been wrongfully denied his right to vote is said to 
involve a standard which it would not be feasible for 
either the courts or the executive department to try to 
apply.

In disposing of this appeal, however, we need not—and 
do not—proceed solely by reference to the pi'ecise grounds 
pressed upon us by the parties. Our point of departure 
is that this is an action brought under the Declaratory 
Judgment Act. As we have said on another occasion, in 
accord with numerous declarations by this court6 as well 
as the Supreme Court,7 “ [T]he courts have a broad

6 Davis V. Board of Parole, 113 U.S.App.D.C. 194, 306 
F.2d 801 (1962) (discretion to decline jurisdiction when 
another jurisdiction is more appropriate) ; Gordon V. 
Mattheivs, 106 U.S.App.D.C. 400, 273 F.2d 525 (1959) (simi­
lar) ; Heyward V. Public Housing Administration, 94 U.S.App. 
D.C. 5, 214 F.2d 222 (1954) (discretion to decline jurisdic­
tion when a party, although not an indispensable party, was 
not before the court) ; Williams V. Virginia Military Insti­
tute, 91 U.S.App.D.C. 206, 198 F.2d 980 (1952), cert, denied, 
345 U.S. 904 (1953) (discretion to decline jurisdiction when 
jurisdiction is doubtful and another forum exists where 
jurisdiction is proper and which is better suited to decide 
the question) ; Washington Terminal Co. V. Boswell, 75 U.S. 
App.D.C. 1, 124 F.2d 235 (1941), aff’d, 319 U.S. 732 (1942) 
(discretion to decline jurisdiction when the statutory scheme 
provides special review procedures).

7 Zemel v. Rusk, 381 U.S. 1, 19 (1965); Public Affairs



8

measure of discretion to decline to issue declaratory judg­
ments . . Marcello v. Kennedy, 114 U.S.App.D.C. 147, 
312 F.2d 874 (1962), cert, denied, 373 U.S. 933 (1963). 
The language of the Act is permissive: “ [A]ny court of 
the United States . . . may declare the rights and other 
legal relations of any interested party seeking such dec­
laration . . . ” (emphasis added). These provisions have 
been regarded as “ an enabling Act, which confers a dis­
cretion on the courts rather than an absolute right upon 
the litigant.” Public Service Comm’n. v. Wycoff Co., 344 
U.S. 237, 241 (1952). Thus it is appropriate, in the context 
o f a declaratory judgment suit, to weigh a wider range 
of considerations than would be either necessary or appro­
priate if the only issue were one of standing.8

This discretion is not unbounded, and the admonition 
in Wesberry v. Sanders that dismissal for want of equity 
cannot mask what is in effect an improper dismissal for 
“political question” reasons must be observed. 376 U.S. 1, 
4, 7 (1964). But some circumstances have been recognized 
as appropriate for declining to exercise jurisdiction under 
the Declaratory Judgment Act, and the factors there rele­
vant are present here as well. In matters of public law, 
courts should be careful to avoid “ futile or premature 
interventions” that would reach far beyond the particular 
case; and “ the disagreement must not be nebulous or 
contingent but must have taken on fixed and final shape ... .” 
Public Service Comm’n, v. Wycoff Co., supra at 244-45.9

Associates, Inc. V. Rickover, 369 U.S. I l l  (1962) ; A. L. Mech- 
ling Barge Lines, Inc. V. United States, 368 U.S. 324 (1961) ; 
Great Lakes Dredge & Dock Co. V. Huffman, 319 U.S. 293 
(1943) ; Brillhart V. Excess Ins. Co., 316 U.S. 491 (1942) ; 
Aetna Life Ins. Co. V. Haworth, 300 U.S. 227 (1937).

8 See Public Service Comm’n. V. Wycoff Co., supra; Eccles 
v. Peoples Bank, 333 U.S. 426 (1948).

9 In Public Service Comm’n the Supreme Court reversed



9

When the possibility of the injury’s occurring is remote 
and uncertain, a declaratory judgment is inappropriate. 
See Eccles v. Peoples Bank, supra at 431,10 where it 
is said that “ [E]specially where governmental action 
is involved, courts should not intervene unless the need 
for equitable relief is clear, not remote or speculative.” 

So it is that we must be concerned with the timing of 
the present action. The problem is not so much one of 
whether, as in some of the cases discussed hereinabove, 
an injury not yet incurred is likely ever to happen. We

a determination that respondent’s carriage of motion picture 
films between points in Utah constituted interstate com­
merce. That conclusion was sought by respondent in order 
to prevent the Public Service Commission of Utah from 
regulating its activities. As viewed by the Court, the record 
did not reveal any attempt by the Commission “to enter 
any specific order or take any concrete regulatory step;” 
rather, it viewed respondent as seeking a declaratory judg­
ment “ to guard against the possibility that said Commission 
would attempt to prevent respondent from operating under 
its certificate from the Interstate Commerce Commission.” 
344 U.S. at 244 (emphasis in original). Thus, a proper 
exercise of discretion required dismissing the case, because 
the possibility and the nature of any adverse action against 
respondent was too uncertain.

10 Eccles was an action for a declaratory judgment that 
a condition imposed upon respondent’s membership in the 
Federal Reserve System was invalid. The condition pro­
vided that Transamerica, a bank holding company, could 
not own any of respondent’s stock. The suit was instituted 
because the condition was violated by the acquisition of a 
small amount of stock by Transamerica. The Board of 
Governors of the Federal Reserve System expressed an inten­
tion not to invoke the condition, although it technically was 
violated, because the acquisition did not affect the control 
of respondent. Because of this assurance, respondent’s 
grievances were regarded as “ too remote and insubstantial, 
too speculative in nature,” to be appropriate for judicial 
correction.



10

are under no illusions as to what has been going on in 
the states of residence of the Group II appellants. The 
remote and speculative character of the relief sought here 
derives, rather, from the fact that it cannot, by its very 
nature, become effective before several years have elapsed. 
Meanwhile, and largely since this suit was first filed, Con­
gress has moved directly and in a massive way to eliminate 
the injuries which this complaint seeks to get at indirectly 
by means of the 1970 census and the apportionment made 
on the basis of it for the election of 1972. It is these 
events which create a remoteness of their own, and bring 
into play in this suit considerations of judicial economy 
and reluctance to prescribe for, or to correct, a coordinate 
branch of the national government in the discharge of its 
constitutional responsibilities as it understands them.

The Group I appellants claim to be injured because the 
value of their votes in allegedly non-discriminating states 
is diluted by the discrimination of other states against 
Negro voting. The continuation of this discrimination is 
an essential predicate to the relief they request. I f  these 
practices cease, there is no dilution of their votes and, 
consequently, no injury needing redress. Whether the 
Group I appellants suffer any injury depends upon 
whether the allegations made by the Group II appellants 
concerning the denials and abridgements of the right to 
vote by their states can be sustained.11

11 Appellants contend that the complaint may fairly be 
construed as alleging an interest of the Group I appellants 
which is independent of that asserted by the Group II appel­
lants. But the allegations to which they refer, and the sta­
tistics offered in support of them, relate to the extent of 
the discrimination of which the Group II appellants com­
plain with greater particularity. If, then, the specific prac­
tices complained of by the Group II appellants do not give 
rise to an injury which may be recognized at this time, the 
injuries alleged by the Group I appellants must also be 
viewed as prematurely asserted.



11

The Group II appellants claim to be injured because 
of certain state-created obstacles to their exercise of the 
franchise. More specifically, the Virginia appellants com­
plain that they are unable to vote because Virginia law 
requires the payment of a poll tax and the completion 
of a registration form in the registrant’s handwriting. 
The Mississippi appellants advance a similar disability 
because of the constitutional interpretation test and poll 
tax required by their state. And the appellant from 
Louisiana asserts a like disability because of that state’s 
requirement that voter registration forms must be com­
pleted without error of any kind.

The Voting Rights Act of 1965, however, was directed 
at eliminating voting discrimination for reasons of race 
or color through the use of literacy tests and similar 
devices. Under Section 4 of that Act, if the Attorney 
General of the United States determines that such devices 
were maintained by a state on November 1, 1964, and the 
Director of the Census determines that less than fifty per 
cent of the persons of voting age residing in that state 
were registered for or voted in the presidential elections 
of 1964, then use of such devices is to be suspended. The 
requisite findings have been made by the Attorney General 
and the Director of the Census as to Virginia, Mississippi, 
and Louisiana; and the literacy tests of which appellants 
complain have been suspended.

The Twenty-fourth Amendment, which became effec­
tive in February of 1964, erases poll tax requirements 
for federal elections. Although it does not reach the im­
position of poll taxes in state elections, Section 10 of the 
Voting Rights Act of 1965 recognizes that problem.12 That

12 On September 15, 1965, appellants moved for postpone­
ment of oral argument until the Supreme Court could decide 
the question of the rights of citizens to vote in state elec­
tions without payment of a poll tax. Although appellees



12

Act includes a Congressional declaration “ that the con­
stitutional right of citizens to vote is denied or abridged 
in some areas by the requirement of the payment of a 
poll tax as a precondition to voting.” It authorizes the 
Attorney General to institute actions to set aside such 
taxes, and suits have been brought, pursuant to these 
provisions, to eliminate the poll tax requirements in the 
states in question. Appellants suggested that a substantial 
question exists as to the constitutionality of state poll 
taxes, but the Supreme Court has recently, in Harper 
v. Virginia State Board of Elections, 43 U.S. L aw W eek 
4305, (March 22, 1966), removed that issue from the realm 
of speculation. In that case, the Court declared a Virginia 
poll tax of $1.50 repugnant to the equal protection clause, 
and spoke in words which leave no doubt as to the uncon­
stitutionality of poll taxes as a prerequisite to voting.

Congress has, thus, acted vigorously and comprehen­
sively to remove the obstacles to voting of which the 
appellants complain. To regard its measures as having 
no effect upon the discriminations alleged by the Group 
II appellants, and derivatively relied upon by the Group 
I appellants, would not afford them the respect an Act 
of Congress deserves. Congress has established a plan 
of direct action for assuring to all citizens a non-dis- 
criminatory right to vote, and steps have been taken to 
implement these provisions. At this time we cannot assay 
the final impact of these measures upon discrimination 
against Negro voting; nor do any of the allegations in 
the complaint assist in this task.13 It has been thought

consented to the motion, it was denied because of disagree­
ment as to the effect of such decision on this case.

13 The complaint in this case was filed two years prior to 
the enactment of the Voting Rights Act of 1965. As appel­
lants admit, “ [A]t the time the complaint was drafted, pro­
posal of the Act, much less its adoption, was unlikely.”



13

the better part of judicial wisdom to withhold declaratory 
relief when “ it appears that a challenged ‘continuing prac­
tice’ is, at the moment adjudication is sought, undergoing 
significant modifications so that its ultimate form cannot 
be confidently predicted.” A. L. Mechling Barge Lines, 
Inc. v. United States, 368 U.S. 324, 331 (1961). In this 
case, in light of the specific steps taken by Congress to 
eliminate the Group II appellants’ causes for complaint, 
our discretion is best exercised by declining to compel the 
District Court to open the door to judicial relief until it 
can fairly be said that discrimination persists despite 
these new measures.

That the relief appellants seek concerns preparation 
for a census which will not occur until 1970 reinforces 
our view that the march of events has made the com­
plaint premature. Although litigation involves delay and 
time must be allowed to prepare for taking the census, 
some considerable latitude would still seem to exist for 
appraisal of the effectiveness of the new Voting Rights 
Act before appellants turn in desperation once more to 
the indirect sanction they believe to be imbedded in Sec­
tion 2 of the Fourteenth Amendment.

Appellants argue that the Voting Rights Act is not 
certain to eliminate the injuries which are the basis for 
this suit. But we cannot speculate on that score. Congress 
has selected the means it deems suitable. It should be 
presumed that these measures will receive the support 
that is commensurate with their high aims. If the Con­
gressional means fall short of the Congressional ends, 
whether through lack of enforcement or stubborn resist­
ance, that is a matter to be explored by the trier of fact 
at a later day.

In deciding to leave the District Court’s dismissal of 
the complaint undisturbed, many of the contentions so 
vigorously made by the parties are not reached. We 
intend thereby neither to intimate any decision on the



14

merits of this ease, nor to disparage the seriousness of 
the questions presented. Issues affecting the right to 
vote touch upon “matters close to the core of our con­
stitutional system.” Carrington v. Bash, 380 U.S. 89, 96 
(1965). In telling appellants that events have made their 
complaint unsuitable for judicial disposition at this time, 
we think it also premature to conclude that Section 2 
of the Fourteenth Amendment does not mean what it 
appears to say.

Affirmed.