League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Memorandum Opinion and Order

    No. 75-104

(3lit ^tipreme Court of tt|e Puitrtl ^tatrs
O ctober  T erm , 1975

U n it e d  J ew ish  O r g a n iz a t io n s  of W il l ia m sb u r g h , 
In c ., et a l ., petitio ners

H u g h  L. C arey , et a l .

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

R obert H . B o rk ,
Solicitor General,

J. S tanley  P o ttin g er , 
Assistant Attorney General,

B r ia n  K. L a n d sb e r g , 
W alter  W . Ba r nett ,
J u d it h  E. W olf,

Attorneys,
Department o f Justice, 
Washington, D. C. 20530.



INDEX

Page
Opinions below ..................................................................  1
Jurisdiction .........................................................................  1
Question presented ..............................   2
Statement ............................................................................. 2
Argument............................................................................. 6
Conclusion ..........................................................................10

CITATIONS

Cases:
Allen V. State Board o f Elections, 393 U.S. 544 .... 4, 6
New York on behalf o f New York County v. United 

States, 419 U.S. 888 ................................................... 3
New York State v. United States, decided April 13, 

1972, Civil No. 2419-71 (D.D.C.) ..............................2
North Carolina State Board o f Education v. Swann, 

402 U.S. 43 .................................................................10
Perkins v. Matthews, 400 U.S. 379 ..............................6
Torres v. Sachs, decided September 26, 1973, 73 Civ. 

3921 (S.D. N.Y.) ..........................................................3
Wells V. Rockefeller, 281 F. Supp. 821, reversed,

394 U.S. 542 ............................................................ 8-9
Whitcomb v. Chavis, 403 U.S. 124 ............................10

Constitution and statutes:
Constitution of the United States:

Fourteenth Amendment .............................................4
Fifteenth Amendment.................................................4



Voting Rights Act of 1965, 79 Stat. 437, as amended, 
42 U.S.C. 1973 et seq.:
Sec. 2, 42 U.S.C. 1973 .............................................. 4
Sec. 4(a), 42 U.S.C. 1973b(a) .................................. 2
Sec. 4(c), 42 U.S.C. 1973b(c) ....................................2
Sec. 5, 42 U.S.C. 1973c ................................... passim

Laws of New York, Chs. 588-591, 599 (1974) ............4
Miscellaneous:

35 Fed. Reg. 12354 (July 31, 1970) ............................. 2
36 Fed. Reg. 5809 (March 26, 1971) ..................... .....2

n



tl|c ^xtpreme Olourl of il\t PrtW  States
O ctober T erm , 1975

No. 75-104
U n ite d  J ew ish  O r g a n iz a t io n s  of W il lia m sb u r g h , 

In c ., et a l ., petitioners

V.
H u g h  L. C arey , et a l .

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 
7a-50a) is reported at 510 F.2d 512. The opinion of 
the district court (Pet. App. 53a-58a) is reported at 
377 F. Supp. 1164.

JURISDICTION

The judgment of the court of appeals (Pet. App. 
5a-6a) was entered on January 6, 1975, and a timely 
petition for rehearing and suggestion for rehearing en 
banc was denied on Fedruary 27, 1975 (Pet. App. 4a). On 
June 25, 1975, Mr. Justice Blackmun extended the time 
within which to file a petition for a writ of certi­
orari to and including July 18, 1975 (Pet. App. la- 
2a). The petition was filed on July 17, 1975. The 
jurisdiction of this Court is invoked under 28 
U.S.C. 1254(1).

(1)



QUESTION PRESENTED

Whether the courts below correctly held that the 
redistricting law enacted by the State of New York in 
1974 for Kings County does not illegally dilute peti­
tioners’ voting strength.

STATEMENT

The New York counties of Bronx, Kings and New 
York are subject to the provisions of the Voting 
Rights Act of 1965 (the “Act”), as amended, 42 U.S.C. 
1973 et seq., by virtue of the Attorney General’s deter­
mination that on November 1, 1968, the State of New 
York maintained a test or device (a literacy test) within 
the meaning of Section 4(c), 42 U.S.C. 1973b(c),' and the 
determination of the Bureau of the Census that less than 
fifty percent of the voting-age residents of those counties 
voted in the presidential election of 1968.2 Thus, before 
the State of New York could effect changes in district lines 
in Bronx, Kings and New York counties, it was required 
to comply with Section 5 of the Act, 42 U.S.C. 1973c.2

'See 35 Fed. Reg. 12354 (July 31, 1970).

2See 36 Fed. Reg. 5809 (March 26, 1971).

^The State of New York filed suit for a declaratory judgment 
on behalf of the affected counties on December 3, 1971, assert­
ing that during the ten years preceding the filing of the suit, 
the voter qualifications prescribed in the New York laws did not 
deny or abridge the right to vote of any individual on account 
ol race or color and seeking an exemption from coverage under 
the Act (Pet. App. 12a-13a), See Section 4(a), 42 U.S.C. 1973b(a). 
On April 13, 1972, the District Court for the District of Col­
umbia entered a declaratory judgment for plaintiff, with the 
acquiescence of the United States, thereby relieving the three 
counties of any obligation to comply with the provisions of



On January 31, 1974, the State submitted the re­
districting plans enacted in 1972 for Bronx, Kings and 
New York counties to the Attorney General for review 
under Section 5 of the Act. The Attorney General objected 
to certain provisions of those plans on April I, 1974, ad­
vising the New York Attorney General’s office (Pet. 3);

On the basis of all the available demographic facts 
and comments received on these submissions as well 
as the state’s legal burden of proving that the 
submitted plans have neither the purpose nor the 
effect of abridging the right to vote because of the 
race or color, we have concluded that the proscribed 
effect may exist in parts of the plans in Kings and 
New York Counties.

The letter of objection stated that the provisions con­
tained in the plans for election to the state senate and 
assembly from Kings County failed,to comply with Section 
5 because one of the districts provided for in the plans 
had an “abnormally high minority concentration while 
adjoining minority neighborhoods [were] significantly 
diffused into surrounding districts, * * * [and we know]

the Voting Rights Act (Pet. App. 13a). New York State v. 
United States, Civil No. 2419-71 (unreported).

Subsequently, as a result of the decision of the District 
Court for the Southern District of New York in Torres v. 
Sachs, 73 Civ. 3921 (September 26, 1973) (unreported), which held 
that the conduct of elections in the City of New York solely 
in the English language violated the rights of non-English 
speaking Puerto Rican citizens, the United States moved in the 
District Court for the District of Columbia to reopen the declaratory 
judgment of April 13, 1972. On November 5, 1973, the motion to 
reopen was granted, and on January 10, 1974, the declaratory judg­
ment was rescinded. On April 30, 1974, the State’s motion for sum­
mary judgment was denied. This Court summarily affirmed the 1974 
orders. New York on behalf o f  New York Countv v. United States, 
419 U.S. 888. (See Pet App'. 13a.)



of no necessity for such configuration and believe 
* * * other rational alternatives exist” (Pet. 3-4).4 Under 
Section 5 of the Act, 42 U.S.C. 1973c, the State of New 
York could have brought an action before a three-judge 
court in the District of Columbia challenging the basis 
of the Attorney General’s objections. See Allen v. 
State Board o f Elections, 393 U.S. 544. However, no such 
action was brought.

Following receipt of the Attorney General’s objections, 
the State revised those portions of the 1972 redistrict­
ing plans to which the Attorney General had objected— 
including those provisions contained in the plans for 
elections to the state senate and assembly from King’s 
County, which are the subject of this litigation. Laws 
of New York, chs. 588-591, 599 (1974). Petitioners, who 
purport to represent the Hasidic community of the 
Williamsburgh area of Brooklyn (Kings County), brought 
this suit on June 11, 1974, seeking to enjoin imple­
mentation of those provisions in the 1974 redistricting 
plans relating to state senate and assembly elections from 
Kings County. They alleged that the disputed provisions 
in the Kings County redistricting plans violated their 
rights under the Fourteenth and Fifteenth Amendments 
by dividing their community between two senate and 
assembly districts. They further alleged that they had 
been assigned to districts solely on the basis of race, 
in violation of the Fifteenth Amendment and Section 2 of 
the Voting Rights Act, 42 U.S.C. 1973. Petitioners also

'•The Attorney General also objected to certain provisions for 
congressional redistricting in Kings County and to portions of the 
redistricting plans for New York County. Since peitioners presently 
seek relief only with respect to the state senate and assembly 
redistricting plans for Kings County, however, those additional 
redistricting provisions are not at issue here.



sought a declaration that in objecting to portions of the 
1972 redistricting plans, the Attorney General had applied 
impermissible standards. On July 1, 1974, the Attorney 
General entered his decision not to object to the 1974 
redistricting plans (Pet. App. 6-7, and n. 2).

The district court dismissed the suit on July 25, 1974, 
holding that once the Attorney General had informed the 
State of New York that he would not object to imple­
mentation of the 1974 redistricting provisions chal­
lenged by petitioners, no controversy remained under 
Section 5 of the Voting Rights Act and that petitioners’ 
constitutional challenges were without merit. The court 
stated that petitioners enjoyed no constitutional right to 
separate community recognition, that state officials may 
take into account the racial impact of alternative re­
districting schemes in an effort to correct past racial 
discrimination and that “no one is being disenfranchised 
by the redistricting [at issue here] and no voting right 
is being extinguished” (Pet. App. 58a).

The court of appeals affirmed, holding that the com­
plaint against the Attorney General must be dismissed 
because the district court was without jurisdiction to re­
view the Attorney General’s objections to the 1972 plans 
and no relief was sought against the Attorney General 
except a declaration that he had applied impermissible 
standards in objecting to those plans (Pet. App. 20a- 
22a). As to the state defendants, the court of appeals 
held that petitioners had failed to prove that their 
constitutional rights had been violated {id. at 22a- 
24a). As Hasidic Jews, petitioners presented no cogni­
zable claim to remain together as a voting bloc. The 
court held {id. at 24a-26a) that petitioners did have 
standing to contend, as white voters, that racial con­
siderations cannot be used in drawing district lines. 
The court concluded {id. at 27a-28a), however, that 
petitioners had failed to show that the effect of the



disputed 1974 redistricting provisions was to reduce 
the voting strength of white voters in Kings County as 
a whole or even in the particular districts in which 
petitioners resided.

ARGUMENT

1. The court of appeals was correct in dismissing 
the Attorney General of the United States as a party 
to this case. Indeed, petitioners do not challenge the 
dismissal. Jurisdiction to review the Attorney General’s 
objections to the 1972 redistricting plans is vested ex­
clusively in the District Court for the District of Col­
umbia under Section 5 of the Act, 42 U.S.C. 1973c, and 
then only at the behest of the State of New York or 
a political subdivision. Allen v. State Board o f Elections, 
393 U.S. 544, 555, 561. Once the Attorney General had 
decided not to object to implementation of the disputed 
1974 redistricting provisions, moreover, the requirements 
of the Voting Rights Act were satisfied, and the courts 
below were foreclosed from determining whether the 
Attorney General had correctly determined under the 
Act that the redistricting did not have the purpose 
or effect of denying or abridging the right to vote 
on account of race or color. Perkins v. Matthews 400 
U.S. 379, 386.

2. Contrary to petitioners’ contention (Pet. 2), this 
case does not present the question—

[wjhether such a gerrymander [the disputed 1974 
redistricting provisions] was rendered constitutional 
by the fact that it was carried out under the in­
structions of the United States Department of Justice, 
purporting to implement the Voting Rights Act of 
1965.

In objecting to the 1972 redistricting plans, the 
Attorney General determined that certain of the pro­
visions contained therein would have had the effect 
of abridging the right to vote on account of race or



7

color. He did not suggest alternative provisions or plans, 
and the 1974 lines were not drawn at his direction 
or pursuant to his instructions.^ If the State of New 
York had not enacted in 1974 redistricting provisions 
not objected to under Section 5 of the Voting Rights Act, 
the districting provisions in effect prior to 1972 would 
have remained in effect. As the Attorney General noted 
in his memorandum of July 1, 1974 (Pet. App. 36a-37a):

In assessing these arguments [against the provisions 
of the 1974 plans challenged by petitioners], two 
basic principles should be kept in mind. First, it is 
not the function or authority of the Attorney General 
under Section 5 to devise redistricting plans, or for 
that matter to dictate to the State of New York 
specific actions, steps or lines with respect to its 
own redistricting plan. The only function of the 
Attorney General under Section 5 is to evaluate 
a voting change, such as that encompassed in the 
instant submission, once it has been adopted by 
the state and submitted for the Attorney General’s 
review, and to determine the limited question of 
whether the purpose or effect of the change in 
question is to deny or abridge the right to vote

5Richard S. Scolaro, Executive Director of the State’s Joint 
Legislative Committee on Reapportionment, testified that from dis­
cussions with Department of Justice personnel he “got the feeling 
* * * that 65 percent would be probably an approved figure [for 

the percentage of non-white population in the assembly district 
which, under the 1972 plans, was 61.5 percent non-white]’’ (Pet. 
5). Scolaro also testified, however, that no specific figure was either 
suggested or explicitly approved by the Department of Justice 
prior to the State’s second formal submission (Pet. App. 16a), and 
there is no testimony that Department of Justice personnel sug­
gested that any particular geographic lines be drawn within Kings 
County.



8

on account of race or color. If no such abridgment 
or denial exists, the Attorney General must not 
object to the plan, regardless of the merits or de­
merits of the plan in other regards, including state, 
local, and partisan political ones. If an abridg­
ment or denial does exist—as we found in the first 
submission by New York—the Attorney General 
must object, stating his reasons, but not drawing 
a counter plan or commanding any particular state 
response.

Although the court of appeals correctly stated that 
the 1974 redistricting was in conformity with the “un­
challenged directive” of the Attorney General and with 
his “approval” (Pet. App. 3la-32a), the “unchallenged 
directive” was the Attorney General’s determination (un­
challenged by the State of New York in a declaratory 
judgment action before a three-judge court, as provided 
for in Section 5) that certain provisions of the 1972 
redistricting could not be enforced and the “approval” 
was the Attorney General’s post hoc decision not to 
object to the redistricting provisions enacted in 1974. 
The Attorney General did not instruct the State to revise 
any of the district lines in effect prior to 1972 or, in 
effecting changes, to adopt any particular new plan or 
plans with prescribed characteristics. In entering no ob­
jection to the 1974 plans, he merely found the plans not 
to be in violation of the Voting Rights Act.

3. The court of appeals correctly held that petitioners, 
as Hasidic Jews, do not enjoy a constitutional right to 
separate community recognition in legislative districting. 
No court can give effect to each of the community 
interests that thrive in Kings County.^ See Wells v.

Â.s the court of appeals noted (Pet. App. 23a), there are from twenty 
to sixty clearly defined communities in Kings County. In view of the 
fact that there are fewer than nine senate districts and twenty- 
two assembly districts in the county, it would be impossible to give 
effect to each community interest.



Rockefeller, 281 F. Supp. 821, 825 (S.D. N.Y.), reversed 
on other grounds, 394 U.S. 542. Petitioners have not 
claimed, moreover, that the purpose of the 1974 re­
districting was to dilute or abridge their right to vote 
as Hasidic Jews. As noted by the court of appeals 
(Pet. App. 24a):

Rather their complaint is that the purpose [of the 
1974 redistricting] was to ensure non white majority 
representation in the districts in question. Their 
argument that this purpose was unconstitution­
al is unchanged whether the Hasidim were included 
in one district or two.

Petitioners also failed to show that their constitutional 
rights as white voters had been abridged. As the court 
of appeals noted (Pet. App. 27a-28a, n. 21), the pop­
ulation of Kings County is 64.9 percent white and 35.1 
percent non-white (j.e., black and Puerto Rican). Under the 
disputed redistricting provisions enacted in 1974, three ' 
of King County’s ten senate districts contain non-white 
population majorities. Thus, white voters have voting 
majorities in 70 percent of the senatorial districts—a 
figure slightly greater than their numbers represent in 
the county as a whole. Similarly, only seven of the 
county’s twenty-two assembly districts contain non­
white population majorities under the 1974 redistricting 
provisions. The other fifteen districts (68 percent of the 
total number of districts) contain white population ma­
jorities.

Thus, petitioners have not only failed to show that the 
1974 redistricting was “conceived or operated as a pur-



10

poseful device to further racial discrimination,”  ̂ Whit­
comb V. Chavis, 403 U.S. 124, 149, but they have also 
failed to prove that the effect of the 1974 redistricting 
is to dilute their voting strength as white voters.

CONCLUSION

For the foregoing reasons, the petition for a writ 
of certiorari should be denied.

Respectfully submitted.
R obert H. B ork ,

Solicitor General.
J. S tanley  P o ttin g er ,

Assistant Attorney General.
B r ia n  K. L a n d sbe r g ,
W alter W. B arnett ,
J u d it h  E. W olf,

A ttorneys.
S eptember 1975.

’In contending that the districts provided for in 1974 for elections 
to the state senate and assembly in Kings County are invalid because 
they were drawn along racial lines, petitioners fail to recognize 
that the State of New York was required by the Voting Rights Act to 
prove the absence of a racially discriminatory effect prior to imple­
menting any changes in the existing lines. Thus, the state defendants 
could not close their eyes to race. Such race consciousness, however, 
is not equivalent to invidious racial discrimination. See North Carolina 
State Board o f Education v. Swann, 402 U.S. 43, 46.