Wright v. Rockefeller Brief for Appellants Jurisdictional Statement

    No.

I n  t h e

^uprrn? (Emtrt n! tit?
October Term, 1962

Y V E T T E  M. W RIG H T, H ORACIO L. QUINONES. 
D A R W IN  BOLDEN, BEN N Y CARTAGEN A, 
RAM ON  DIAZ, JOSEPH R. ERAZO, BLORN EVA 
SELBY, W A LSH  M cD ERM OTT, SETH DUB IN, 
all individually and on behalf of all other persons 
similarly situated, Plaintiffs-Appellants,

— against—
NELSON A. ROCKEFELLER, Governor of the State 

of New York, LOUIS J. LE FK O W ITZ, Attorney 
General of the State of New York, CAROLIN E K. 
SIMON, Secretary of State of the State of New York, 
and DENIS J. M AHON, JAMES M. POW ER, JOHN 
R. CREW S and TH O M A S M ALLEE, Commissioners 
of Elections constituting the Board of Elections of the 
City of New York, Defendants-Appellees,

— and—
A D AM  CLAYTO N  POW ELL, J. RAYM O N D  JONES, 

LLOYD  E. DICKENS, H U LAN  E. JACK, M ARK  
SO U TH ALL and AN TO N IO  MENDEZ,

D efendants-Intervenors-A ppellees.

O n  A ppeal  from  t h e  U n ited  States D istr ic t  C ourt 
for t h e  S o u th e r n  D istr ic t  of N ew  Y ork

JURISDICTIONAL STATEMENT

Ju s t in  N. F e ld m an  
415 Madison Avenue 
New York 17, N. Y.

Jerom e  T. O rans  
10 East 40 Street 
New York 16, N. Y.

G eorge M. C o h en  Attorneys for Appellants.
E lsie  M. Q u in l a n  

O f counsel



I N D E X

PAGE

Opinion Below .......................     1

Jurisdiction ......................................................................... 2

Questions Presented ............    2

Constitutional Provisions and Statutes Involved..........  3

Statement .......................    3

The Questions Presented Are Substantial...................  10

Conclusion ....................................................................   17

A p p e n d ix  A

Opinion. Moore, C. J................................................. .. . la
Opinion, Feinbergf, D. J................................................ 17a
Opinion, Murphy, D. J..............  ................................. 25a

A p p e n d ix  B
United States Constitution, Federal Statutes, State 

Statutes and legislative history ............................ lb

A p p e n d ix  C
Plaintiffs’ Exhibit 2B .................................................  1c
Plaintiffs’ Exhibit 3 .....................   2c
Plaintiffs’ Exhibits 4, 4A and 4B .......................... 3c



11

CITATIONS

PAGE

Cases :

Baker v. Carr, 369 U. S. 1 8 6 ....................................  13
Branche v. Board o f Education, 204 F. Supp. ISO

(E. D. N. Y. 1962) ............................................... 15
Brown v. Board of Education, 347 U. S. 483 ........  13
Bush v. New Orleans Parish School Bd., 188 F. 

Supp. 916, aff’d, 365 U. S. 569 ............................ 14

Dorsey v. Stuyvesant Town, 229 N. Y. 5 1 2 ........... 7

Eubanks v. Louisiana, 356 U. S. 584 ...................... 15

Gomillion v. Lightfoot, 364 U. S. 329 . ..................13, 15

Hernandez v. Texas, 347 U. S. 475 ..................... 4, 9, 15

N A A C P  v. Alabama, 357 U. S. 449 .......................  15
N A A C P  v. Button, 371 U. S. 4 1 5 ............................ 15
Neal v. Delaware, 103 U. S. 370 .............................. 15
Norris v. Alabama, 294 U. S. 587 .......................... 15

Orvis v. Higgins, 180 F. 2d 537 at n. 6 (2d Cir. 
1950), cert. den. 340 U. S. 8 1 0 ...........................  10

Progress Development Corp. v. Mitchell, 182 F. 
Supp. 681 (N. D. 111. 1960) aff’d, 286 F. 2d 222 
(7th Cir. 1961) ..................... '................................. 13

Watts v. Indiana, 338 U. S. 49 . ...................... 10

U n ited  States C o n s t it u t io n :

Article 1 § 3 ............................................................. .. 4

Amendment X IV , § 1 .................................................  3, 4
Amendment X V , § 1 ...................................................  3; 4



PAGE
F ederal S t a t u t e s :

28 U. S. C. § 2281 .....................................................  2, 4
28 U. S. C. § 2284 ......................................................  4
28 U. S. C. § 1253 ......................................................  2
2 U. S. C. § 2 (a ) ......................................................  3

42 U. S. C. § 1983 ....................................................... 3

42 U. S. C. § 1988 ......................................................  3

28 U. S. C. § 1343 (3 ) ............................................... la
28 U. S. C. § 2201 ......................................................  4

28 U. S. C. § 2202 ......................................................  3

N ew  Y ork  State  St a t u t e s :

Chapter 980 ; 1961 Laws of the State of New York 2, 3

M iscellan eous  :

New York State Legislative Document No. 45 
(1961) ................... .............................................. .. 3

N. Y. C. Board of Education, Toward Greater 
Opportunity, 155 (1960) ......................................  4

2 Moore’s Fed. Pract. 1687 (1953) .......................... 16
Note, 70 Yale L. J. 126 (1 9 6 0 ) ..................................  13
Bittker, The Case o f the Checkerboard Ordinance 

71 Yale L. J. 1387 (1962) ....................................  13

Ill



I n  t h e

ûpr̂ m? Court of fljr H&nxttb #tatro
O ctober T e r m , 1962

Y vette  M. W r ig h t , H oracio  L. Q u in o n e s , D a r w in  
B olden , B e n n y  Car ta g e n a , R a m o n  D ia z , Joseph  R. 
E razo , B lorneva  Se lb y , W a l sh  M cD erm o tt , Se th  
D u b in , all individually and on behalf o f  all other persons 
similarly situated, Plaintiffs-Appellants,

— against—

N elson  A. R ockefeller , Governor of the State o f New 
York, Louis J. L e f k o w it z , Attorney General o f the 
State of New York, Ca r o lin e  K. S im o n , Secretary of 
State of the State o f New York, and D e n is  J. M a h o n , 
Jam es  M. P ow er , Jo h n  R. Crew s and T h o m a s  Mal- 
lee , Commissioners of Election constituting the Board 
of Elections of the City o f New York,

Defendants-A ppellees,
— and—

A dam  C layto n  P o w ell , J. R aym o n d  Jones , L loyd E. 
D ic k e n s , H u l a n  E. Ja c k , M a r k  S o u t h a l l  and A n ­
ton io  M endez ,

Defendants-Intervenors- Appellees.

O n  A ppeal from  t h e  U n ited  States D istr ic t  C ourt 
for t h e  So u th e r n  D istrict  of N ew  Y ork

JURISDICTIONAL STATEMENT 

Opinion Below

The three separate opinions of the three-judge District 
Court (Appendix A, infra) are reported at 211 F, Supp. 
460.



2

Jurisdiction

A  three-judge District Court was convened pursuant 
to 28 U. S. C. §§ 2281 and 2284. On November 26, 1962 
the Court entered a judgment dismissing the complaint. A  
Notice of Appeal was filed in the District Court on Janu­
ary 23, 1963 (R. 531-33). Jurisdiction of this Court to 
review the judgment below is conferred by 28 U. S. C. 
§ 1253.

Questions Presented

1. Whether appellants sustained their burden of prov­
ing that the portion of Chapter 980 of the 1961 Laws of 
the State of New York which delineates the boundaries of 
the Congressional districts in Manhattan Island segregates 
eligible voters by race and place of origin in violation of 
the Equal Protection and Due Process Clauses of the Four­
teenth Amendment and in violation of the Fifteenth Amend­
ment.

2. Whether a statute which segregates persons by 
race or place of origin may be declared constitutional on the 
ground (a) that no proof of specific harm to the individuals 
subject to the statute has been adduced at trial or (b ) that 
the segregation is benign in its effect.

3. Whether plaintiffs attacking the constitutionality 
of a state statute must, in addition to proving that the 
statute has the demonstrable effect of segregating persons 
by race or place of origin, also prove that the “ motive” of 
the legislature was to produce that effect.

4. Assuming, arguendo, that both effect and motive 
must be shown (a ) whether plaintiffs’ burden of proof is 
greater than that required in the usual civil case, and (b ) 
whether a court may sustain the constitutionality o f the



3

statute by inferring an alternative legislative motive re­
garding which there is no evidence in the record and which 
is not a proper subject of judicial notice.

Constitutional Provisions and Statutes Involved
The Constitutional provisions and statutes involved are 

the Fourteenth and Fifteenth amendments to the United 
States Constitution, 2 U. S. C. § 2 (a ), 42 U. S. C. §§ 1983 
and 1988, 28 U. S. C. §§ 1343, 2201, 2202 and 2281, and 
Chapter 980 of the 1961 Laws of New York. The pertinent 
provisions of 2 U. S. C. § 2 (a ) and Chapter 980 are set 
forth in Appendix B, infra.

Statement
On November 9, 1961, the Joint Legislative Committee 

on Reapportionment recommended to an extraordinary ses­
sion of the New York State Legislature a statute redraw­
ing the boundaries of the Congressional districts of the state 
in accordance with the 1960 Federal census, as required by 
2 U. S. C. § 2 (a ), New York State Legislative Document 
No. 45 (1961), set forth in Appendix B, infra. No hear­
ings were held and no debates recorded, and the statute 
was passed without change and signed by the Governor 
on the next day. N. Y. Sess. Laws, Extraordinary Sess. 
1961, c. 980 §§ 110-12.

On July 26, 1962, appellants filed a civil complaint pur­
suant to the Civil Rights Act, 42 U. S. C. §§ 1983 and 1988, 
28 U. S. C. § 1343, in which they challenged that portion of 
the statute which delineates the boundaries of the four Con­
gressional districts which are wholly contained in, and 
comprise all of the districts in, New York County (the is­
land or borough of Manhattan). Appellants are residents 
and registered voters in each of these four districts. The 
appellees named in the complaint are various state and city



4

officials charged with the administration o f the statute. The 
complaint alleges that the challenged portion of the statute 
segregates eligible voters in Manhattan on the basis o f race 
and place of origin in violation of the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
and in violation of the Fifteenth Amendment. The com­
plaint seeks a judgment pursuant to 28 U. S. C. § 2201 de­
claring the challenged portion of the statute unconstitu­
tional and restraining the defendants in the enforcement 
thereof and, in the event such declaration does not lead to 
corrective legislation, additional equitable relief.

On July 31, 1962, on motion of appellants and after 
hearing, Feinberg, D J. determined that a three-judge court 
should be convened pursuant to 28 U. S. C. §§ 2281 and 
2284.

At the opening o f the trial before the three-judge court, 
Adam Clayton Powell, the then incumbent Congressman 
from the pre-1961 18th Congressional District, and five 
other individuals, alleging inter alia that “ Negroes and 
Puerto Ricans now control” one of the four districts in 
Manhattan, which might be affected by a judgment in the 
case, were permitted to intervene as defendants.

During the trial, appellants presented evidence in the 
form of charts, statistics and expert testimony, showing 
the boundaries of the four districts in Manhattan and the 
white and non-white and Puerto Rican* population** within

*The non-white and Puerto Rican classification derives from the 
U. S. Census breakdown (R. 52-54) and the classification used by 
New York City agencies. See N. Y. C. Board of Education, Toward 
Greater Opportunity, 155 (1960). Puerto Ricans in New York City 
are “ an easily identifiable group [requiring] the aid of a Court in 
securing equal treatment under law . . .” Hernandez v. Texas, 347 
U. S. 475, 478 (1954).

**Total population rather than eligible voters, residents, or other 
classification, was selected because the Constitution and Congress re­
quire Congressional districting on the basis of total population. U. S. 
Constitution Art. I, § 3; Fourteenth Amendment § 2 ; 2 U. S. C. 
§ 2(a).



5

those boundaries. Certain of appellants’ trial exhibits are 
set forth in Appendix C.*

Appellants’ evidence showed that the number of Con­
gressional districts in Manhattan was reduced by the 1961 
statute from 6 to 4, thus requiring a redrawing of bound­
aries and an increase in the population of the remaining 
four districts. Appellants’ uncontroverted evidence also 
showed as follows:

—-The total population of Manhattan Island is 37.7% 
non-white and Puerto Rican (Pltfs.’ Exh. 3).

— The first o f the four districts drawn by the statute 
(the 17th) contains a population which is 94.9% 
white non-Puerto Rican, was carved out of the center 
of the Island, has an irregular 35-sided configuration 
and is the least populous of the four districts (P ltfs.’ 
Exhs. 2B and 3).

— The next district drawn by the statute (the adjacent 
18th) contains a population which is 86.6% non-white 
and Puerto Rican and is the second least populous 
district (Pltfs.' Exh. 3).

— The boundary between the 17th and 18th is a 13-sided 
step-shaped configuration which fences a maximum 
number o f non-whites and Puerto Ricans out of the 
17th and into the 18th (R . 99-108).**

*It should be noted that Pltfs.’ Exh. 4 does not precisely reflect 
the racial distribution around the borders of the 17th District. The 
shadings in the Exhibit cover entire census tracts, whereas the 
boundaries of the 17th cut through 16 such tracts. As shown by the 
testimony, most of the non-whites and Puerto Ricans in the cut tracts 
are excluded from the 17th (R . 95-121).

**One exception is an area retained in the 18th containing 10,507 
persons, of whom less than 4.9% are non-white and Puerto Rican. 
However, a public housing project, authorized in May of 1959, is now 
being constructed in this area (Pltfs.’ Exh. 7 ). Such projects in 
New York City have an average non-white and Puerto Rican oc­
cupancy of 73.4% (Pltfs.’ Exh. 7).



6

— The remaining two districts, which fill out the rest of 
the Island, are approximately equal in total population 
and racial composition, each containing just over 70% 
white non-Puerto Ricans and just under 30% non­
whites and Puerto Ricans (Pltfs.’ Exh. 3).

—-The boundaries of these remaining two districts are 
drawn so as to maximize the predominantly white 
non-Puerto Rican character of the 17th and the non­
white and Puerto Rican character o f the 18th (R. 
108-119 and Pltfs.’ Exhs. 4, 4A and 4B ),

— The 17th could not be expanded in any direction so as 
to make it reasonably equal in population to the other 
districts, nor could its boundary lines be significantly 
straightened, without incorporating heavy concentra­
tions of non-whites and Puerto Ricans (R. 99-119 
and Pltfs.’ Exhs. 4, 4A and 4B ).

—-All but 3.1% of the Island’s non-whites and Puerto 
Ricans are included in districts in which their votes 
are 12-15% less valuable than those of the residents 
of the 17th (P ltfs.’ Exh. 3).

— As a result of the three redistricting acts since 1911, 
the 17th has been altered from a rectangular con­
figuration to its present 35-sided irregular shape 
(Defts.’ Exhs. C-H, R. 595-600).

— The two geographical areas added to the 17th by the 
1961 statute were the two remaining areas in Man­
hattan with the highest concentrations of white non- 
Puerto Rican population, an average of approxi­
mately 98% (R. 123-25 and Pltfs.’ Exh. 4B).

— In adding one all white non-Puerto Rican housing- 
project (Stuyvesant Town) to the 17th, an adjacent 
area containing a non-white Puerto Rican population



7

of 12.2% was omitted, thus leaving an inexplicable 
loop in the boundary of the 17th and increasing its 
irregular configuration* (R. 143-44 and Pltfs.’ Exh. 
4B ).

— The one area dropped from the 17th by the 1961 
statute was the area of highest concentration of non­
whites and Puerto Ricans (44 .5% ) remaining in the 
district at the time of the adoption of the statute 
(R. 139-40).

— The new 17th created by the 1961 statute contains 
almost 50% more persons than the old 17th, but the 
percentage of non-whites and Puerto Ricans in the 
district was reduced from 6.6% to only 5.1% (R. 123, 
179-80).

—ETone of three hypothetical divisions of the Island into 
four districts on a logical basis, using natural bound­
aries or well known streets and avenues, produce con­
centrations of whites on the one hand and Negroes 
and Puerto Ricans on the other which even approach 
the concentrations achieved by the statute (Pltfs.’ 
Exh. 6 and R. 142-48).

At the close of appellants’ case, no evidence was offered 
either by the appellee state officials or by the intervening 
appellees. The appellee state officials alleged no affirmative 
defenses. The intervening appellees failed to introduce 
evidence in support of the affirmative defenses alleged in 
their pleading, and, because there was no evidence in the 
record to support them, the court below refused to consider

*Stuyvesant Town is 99.5% white non-Puerto Rican (R . 124-25 
and Pltfs.’ Exh. 4B) under sanction of the decision in Dorsey v. 
Stuyvesant Town, 299 N. Y. 512 (1949).



8

or to pass upon these alleged defenses. (Appendix A, infra, 
pp. 22a-23a).

In dismissing the complaint, the three-judge court di­
vided two to one, and each of the judges filed a separate 
opinion.

Judge Moore took the position that racially segregated 
voting districts are constitutional, at least absent a showing 
o f serious underrepresentation or other specific harm to the 
individuals concerned. He stated that plaintiffs “ must show 
more than a mere preference to be in some other district 
and associated for voting purposes with persons of other 
races or other countries of origin” (Id, pp. lO a-lla) and 
noted that “ plaintiffs have not even shown that their vot­
ing status will be changed in any way” (Id. at p. 15a).

Judge Moore also took the position that segregated vot­
ing districts could be constitutionally justified, or even con­
stitutionally required, because they may enable persons of 
the same race or place of origin “ to obtain representation in 
legislative bodies which otherwise would be denied to them” 
(Id. at p. 17a).

Even if segregated voting districts could violate the 
Constitution, Judge Moore was of the opinion that they 
could be unconstitutional only if the legislature’s “ motive” 
was to create such districts; that plaintiffs must introduce 
proof of this “ motive” ; and that, in this case, no such proof 
was tendered by the plaintiffs (Id. at pp. 4a, 10a, 11a, 
14a, 15a).

Judge Feinberg disagreed with Judge Moore’s view that 
segregated voting districts are constitutional absent a show­
ing of specific harm, stating that the “ constitutional vice 
[is] the use by the legislature of an impermissible standard 
and the harm to plaintiffs that need be shown is only that 
such a standard was used” (Id. at p. 18a). Judge Fein- 
berg also disagreed with the view that segregated districts



9

could be constitutionally justified by alleged advantages to 
persons of a particular race or place of origin. In Judge 
Feinberg’s opinion, the Constitution is “ color-blind,”  and 
“ good” segregation is as repugnant as “ bad” segregation 
(Id. at p. 20a).

However, Judge Feinberg agreed that plaintiffs must 
show a legislative “ motive” or “ intent” to segregate as a pre­
requisite to a finding of unconstitutionality (Id. at pp. 20a, 
23a). Moreover, Judge Feinberg believed that plaintiffs 
have a “difficult burden” to meet in attacking the constitu­
tionality of a state statute (Id. at p. 20a), and that plain­
tiffs had not sustained their “ difficult burden” of proving 
an unconstitutional legislative motive in this case. Although 
plaintiffs’ evidence, in his view, “ might justify” a finding 
o f a legislative motive to segregate, he rejected such a find­
ing on the ground that “ other inferences . . . are equally or 
more justifiable”  (Id.) The only such inference specifi­
cally cited by Judge Feinberg was that the legislature 
intended to classify persons by “ social and economic back­
ground,”  (Id. at p. 24a), an inference regarding which there 
was no evidence whatever.

In his dissent, Judge Murphy agreed with Judge Fein­
berg as to the applicable constitutional standards. But on 
his view of the record, the plaintiffs carried their burden 
of proving that “ the legislation was solely concerned with 
segregating white and colored and Puerto Rican voters by 
leaving colored and Puerto Rican citizens out of the 17th 
District and into a district of their own (the 18th)”  (Id. 
at p. 2 8 a ); that the legislation had effected “ obvious segre­
gation” ; and that the statute constituted a “ subtle exclusion” 
o f Negroes from the 17th and a “ jamming in o f colored 
and Puerto Ricans into the 18th or the kind of segregation 
that appeals to the intervenors” (Id. at 32a). Accordingly, 
Judge Murphy thought plaintiffs had met their burden of 
proving segregation within Hernandez v. Texas, 347 U. S.



10

475, 479-81 (1954), and, in the absence of any proof by 
defendants or intervenors, were entitled to a judgment de­
claring the statute unconstitutional in violation of the Equal 
Protection Clause of the Fourteenth Amendment.

The Questions Presented Are Substantial

The judgment and opinions below reflect an impermis­
sible reading of the record in this case as well as the applica­
tion of novel and improper Constitutional standards. If 
allowed to stand, unreviewed by any appellate court, they 
will not only continue the segregated pattern of political life 
in Manhattan and leave legislatures everywhere virtually 
free from Constitutional restraint in the creation of seg­
regated voting districts, but they will also establish un­
desirable precedents and create confusion in segregation 
cases generally. Specifically, the judgment and opinions 
below (a ) would permit unbridled segregation unless specific 
harm to the individuals involved could be shown, (b ) would 
sustain segregation deemed to have a benign effect or to be 
prompted by an alternative legislative “ motive” , (c )  would 
impose a virtually unachievable standard of proof upon 
plaintiffs in segregation cases, and (d ) would permit courts 
to uphold segregation statutes by drawing inferences com­
pletely outside the record.

1. The record in this case, which may be reviewed de 
novo here,* clearly shows that the challenged portion of the

*The court below made no findings of fact. The facts are so 
' “intermingled” with the law that de novo review is warranted under 
Norris v. Alabama, 294 U. S. S87 (1935) and Watts v. Indiana, 338 
U. S. 49 (1949). Moreover, the critical facts in the record are 
in documentary rather than testimonial form and, because witness 
demeanor is thus immaterial, may be reviewed de novo here, Orvis v. 
Higgins, 180 F. 2d 537, 539 at A . 6 (2d Cir. 1950), cert. den. 340 
U. S. 810. Especially since this Court is the only appellant tribunal 
which may review the record, de novo review is warranted.



11

statute segregates voters by race and place of origin. The 
legislation has carved out of the middle of Manhattan 
Island one virtually all-white district and one virtually all 
non-white and Puerto Rican district. Without further 
shrinking the already under-sized 17th and 18th districts, 
the legislature could not have drawn the district lines so as 
to create a more segregated pattern— that is, a single dis­
trict with a higher percentage of white non-Puerto Ricans 
(94 .9% ) and another with a higher percentage o f non­
whites and Puerto Ricans ( 86.6% ).

The record thus shows, as judge Murphy found, (a ) 
that segregation exists in fact and (b ) that this segregation 
was purposefully created by the legislature-—assuming such 
purposefulness is an issue in the case, which appellants 
deny, infra pp. 14-15.

Because of his view of the law, Judge Moore did not 
find it necessary to review the facts in detail. Judges Fein- 
berg and Murphy, who did, came to directly contradictory 
conclusions. Judge Feinberg’s conclusion that segregation 
was not proved rests upon five erroneous assumptions.

In the first place, Judge Feinberg assumes that the 1961 
statute expanded the 17th district in a “ logical fashion” 
(Appendix A, infra, p. 21a). This assumption ignores the 
fact that two areas were inexplicably omitted: the area 
bounded by 98th and 100th Streets and Fifth and Madison 
Avenues, with a population 44.5% non-white and Puerto 
Rican, and the area bounded by 19th and 14th Streets and 
Third and First Avenues, with a population 12.2% non­
white and Puerto Rican. The latter area is more logically 
contiguous to the old 17th than the adjoining all white 
non-Puerto Rican Stuyvesant Town (bounded by 19th 
Street, First Avenue, 14th Street and the East River) 
which was added. Omission of these two areas results in



12

five additional zigzags in the boundary of the 17th district,* 
and their inclusion would have brought the under-sized 
17th closer (by 7,489 persons) to the statewide and county­
wide average.

Secondly, Judge Feinberg assumes that “ many combin­
ations of possible Congressional district lines, no matter 
how innocently or rationally drawn, would result in com­
parable figures” (Id. at p. 23a). There is no support what­
ever for this assumption; indeed, the record shows quite the 
contrary— namely, that short of further reducing the size 
of the 17th or 18th districts, it would be impossible to create 
one district with a higher percentage of non-whites and 
Puerto Ricans and one district with a higher percentage of 
whites.

Thirdly, Judge Feinberg assumes that only the changes 
effected by the 1961 statute are relevant (Id. at pp. 20a- 
21a). This assumption ignores the possibility, which appel­
lants assert to be the case, that the prior boundaries of the 
districts were also unconstitutional and that the 1961 
changes merely perpetrated and exacerbated that un­
constitutionality.

Fourthly, Judge Feinberg apparently assumed that 
plaintiffs in a case challenging the constitutionality of a 
state statute have a burden o f proof ( “ difficult burden” ) 
which is greater than that imposed upon plaintiffs in an 
ordinary civil case. That assumption was legally erroneous 
(see infra pp. 15-17).

Finally, Judge Feinberg assumes that proof of legisla­
tive “ motive”  is a prerequisite to unconstitutionality and 
that plaintiffs must prove such “ motive”  as part of their 
affirmative case, even in the absence o f allegations and proof

*The reduction in total zigzags, emphasized by Judge Feinberg, 
results primarily from moving the 17th’s eastern boundary over to 
the East River as part of its expansion required by reduction of the 
Island’s districts from six to four. The upper East Side area thus 
added had become virtually all-white non-Puerto Rican (97.3% ) at 
the time the 1961 statute was adopted (R. 123-25).



13

thereof by the defendants. This assumption was also 
legally erroneous, infra pp. 14-15.

Shorn of these erroneous assumptions, Judge Feinberg’s 
conclusion becomes untenable, and Judge Murphy’s view of 
the record must be adopted.

2. Judge Moore’s opinion denies that segregated vot­
ing districts are unconstitutional absent proof o f dilution 
of voting rights or other specific harm to the persons in­
volved. This view raises an important question of Consti­
tutional law, applicable in segregation cases of every variety. 
Although the opinion of the court in Brown v. Board of 
Education, 347 U. S. 483 (1954), noted that placing Negro 
students in separate schools might be harmful to the stu­
dents involved, the Court’s later decisions outlawing racial 
segregation in public parks, buses and golf courses -were 
per curiam opinions citing Brown without a suggestion of 
specific injury to the individuals concerned. Although two 
Justices have apparently taken the position that segregated 
voting districts are unconstitutional, without a further 
showing of or dilution of voting power*, the issue has not 
been passed upon by this Court. If Judge Moore’s opinion 
is allowed to stand, the states will be free to erect “ separate 
but equal” voting districts and other governmental units.

3. Judge Moore adopts the intervenor’s argument that 
segregated voting districts may be sustained if they benefit 
a particular racial group. This “ benign quota” argument 
is in conflict with the decision in Progress Development 
Corp. v. Mitchell, 182 F. Supp. 681 (N. D. 111. 1960), rev’d 
on other grounds, 286 F. 2d 222 (7th Cir. 1961), Note, 70 
Yale L.J. 126 (1960). And see Bittker, The Case o f the 
Checker Board Ordinance, 71 Yale L.J. 1387 (1962). The 
“ benign quota” issue, which is dramatically presented by

*See Mr. Justice Douglas in Baker v. Carr, 369 U. S. 186, 244 
(1962) and Mr. Justice Whittaker in Gomillion v. Lightfoot, 364 
U. S. 339, 349 (1960).



14

this case, is emerging as one o f the most important in racial 
litigation o f all kinds.

4. The prevailing judges, and probably Judge Murphy 
as well, assert that a showing of legislative “ motive” is a 
prerequisite to a finding of unconstitutional segregation. 
According to this view, a state practice or statute which 
has the effect of segregating persons on grounds of race 
or place o f origin could be constitutionally justified if it 
were shown, by legislative history or otherwise, that this 
effect was achieved inadvertently in the pursuit o f a dif­
ferent objective. This is indeed a novel doctrine of far- 
reaching importance in segregation cases of all kinds. If 
some legislative motives can overcome the effect of racial 
segregation, can any such motive suffice or only alterna­
tive motives which are deemed especially laudable? How 
does a court divine the legislative motive, especially when, 
as here, there is no relevant legislative history? Are not 
legislatures, like individuals, presumed to intend the natural 
consequences of their acts? And is there not a danger, if 
legislative motive to segregate must be shown in order to 
prove a case of segregation, that legislative history will 
be manufactured, or, as here, avoided, thus leading courts, 
especially this Court, into the frequent necessity of imply­
ing motives or questioning the sincerity of individual legis­
lators’ expressions ?

The Court below cited no authority for its novel view 
that plaintiffs, in addition to showing effect, must also show 
legislative motive. It is of course true that legislative pur­
pose may be relevant when the effect of a statute challenged 
as unconstitutional on its face may not be shown without 
reference to legislative purpose, Bush v. New Orleans 
Parish School Bd., 188 F. Supp. 916 (1960), aff’d, 365 
U. S. 569 (1961). But when effect may be readily proved,



15

the Court has focused solely on effect without inquiring into 
the motive of the legislature. See Gomillion v. Light foot, 364 
U. S. 339, 341, 347-8 (1960), where the opinion refers to 
“ effect” and “ result” rather than motive or purpose. Where 
an effect o f segregating has been shown, an alleged motive 
to achieve some other objective has been rejected as irrele­
vant, see, e. g., Eubanks v. Louisiana, 356 U. S. 584, 588 
(1958) (purpose to preserve “ local tradition” rejected). 
And see Branche v. Board, of Education, 204 F. Supp. 150 
(E. D. N. Y. 1962), where purpose was held irrevelant 
once an effect to segregate was shown.

And in cases where state action has been held to have the 
effect of abridging the rights o f a racial minority under the 
First Amendment, that action is unconstitutional even if 
such abridgement was “ unintended” and even if the purpose 
of the action was to protect a very real state interest, e. g., 
N AACP  v. Alabama, 357 U. S. 449, 461 (1958); N A A C P  
v. Button, 371 U. S. 415, 439 (1963).

Nowhere in the cases is there justification for the view 
advanced by Judge Feinberg in this case that a legislative 
motive to classify persons according to “ social and eco­
nomic background” could constitutionally justify a statute 
which has the demonstrable effect of segregating persons 
by race or place of origin, or Judge Moore’s apparent view 
that any alternative motive could justify the statute.

5. Whether or not the Court below was correct in hold­
ing legislative motive a relevant factor where plaintiffs seek 
to prove that a state statute unconstitutionally segregates, 
it was certainly incorrect in the crucial matter of the 
standard of proof to be applied in such cases.

As indicated in cases like Neal v. Delaware, 103 U. S. 
370, 397 (1880), Norris v. Alabama, 294 U. S. 587, 591, 
597-98 (1935), and Hernandez v. Texas, 347 U. S. 475,



16

480-81 (1954), plaintiffs attacking the constitutionality of 
state action on the ground that it produces segregation make
out a prima facie case by showing that such segregation does, 
in fact, exist— in other words, by demonstrating the effect of 
the action. It then falls on those defending the action to 
attempt either to rebut the plaintiff’s proof, or to offer some 
justification for the forbidden effect. Thus in such cases 
traditionally, as in civil cases generally, 2 Moore’s Fed. 
Pract. 1841-62 (1953), matters not within the plaintiff’s 
prima facie case are reserved for affirmative defenses which 
must be pleaded and proved by defendants. Finally, in these 
cases, as in all civil cases, plaintiffs must prove their case 
only by a preponderance of the evidence.

The effect o f Judge Feinberg’s opinion is to alter these 
rules. His statement that appellants have a “ difficult bur­
den” in attempting to prove the unconstitutionality of the 
challenged statute indicates that he imposed a standard of 
proof higher than preponderance o f the evidence. And the 
consequence of his unsatisfactory answers to Judge 
Murphy’s question: “ What more need plaintiffs’ prove?” is 
to require plaintiffs, in order to be certain of proving a prima 
facie segregation case, to assume the burden of rebutting 
every theoretically possible motive for the challenged statute, 
even in the absence of allegations and proof of such motive 
by defending state officials. The latter is an especially un­
reasonable burden when, as here, there is no relevant legis­
lative history.*

In the adversary system neither the plaintiffs nor the 
Court should be obliged to speculate regarding legislative 
motive, particularly in constitutional litigation in which the 
resources of the state, which is in the best position to aduce

*In this case the only legislative history is the legislative committee 
report, Appendix B, pp. 9b-14b, infra. Although this report asserts 
that the committee was motivated by a desire to achieve substantial 
numerical equality, it contains nothing which would explain the con­
figurations of the Manhattan districts.



17

evidence of legislative motive, are arrayed against the pri­
vate litigant. Once the plaintiffs have made an adequate 
showing, the Court has a right to be informed by the state 
regarding the basis of the statute, and it may enforce that 
right effectively only if, in the absence of allegations and 
proof by defendants, it is prepared to give judgment to the 
plaintiffs.

6. The judgment below rests upon Judge Feinberg’s 
view that inferences regarding legislative motive, other 
than that drawn by appellants, are possible. Judge Feinberg 
cited only one specific example of such an inference: that 
the challenged portion of the statute is based upon “ social 
and economic background.” However, there is nothing in 
the record regarding the social and economic background 
of the population of the Island, and such a matter surely is 
not a proper subject of judicial notice. A rule permitting the 
Court to speculate beyond the record in order to justify state 
legislation challenged as creating racial segregation is surely 
improper and could lead to widespread abuse.

CONCLUSION

For the foregoing reasons, probable jurisdiction of this 
appeal should be noted and a hearing on the merits should 
be granted.

Respectfully submitted,

Ju s t in  N. F eld m an  
415 Madison Avenue 
New York 17, N. Y.

Jerome  T . O rans 
10 East 40 Street 
New York 16, N. Y. 

Attorneys for Appellants.G eorge M. C oh en  
E lsie  M. Q u in l a n  

O f counsel



APPENDICES



APPENDIX A 
Opinion



la

U N ITED  STATES D ISTRICT COURT

S o u th e r n  D istr ic t  of N e w  Y ork

C iv il  62-2601

Before: M oore, C.J., and M u r p h y  and F ein berg , D.JJ. 

M oore, Circuit Judge

Plaintiffs bring this action allegedly “ to redress the dep­
rivation, under color of the law of the State of New York, 
of rights, privileges and immunities secured to the plaintiffs 
under the Constitution and laws of the United States and 
to declare unconstitutional that portion o f the State statute 
in question which deprives the plaintiffs o f their rights, 
privileges and immunities” . More specifically, they claim 
that the action arises under the Fourteenth and Fifteenth 
amendments of the Constitution of the United States, the 
Civil Rights Act (42 U. S. C. §§ 1983, 1988 and under 
28 U. S. C. §§ 1343, 2201, 2202 and 2281). The relief 
sought is that a three-judge constitutional court hear and 
determine the case; that such portion o f Chapter 980 of 
the 1961 Laws of New York as describes the boundaries 
of the 17th, 18th, 19th and 20th Congressional Districts 
be declared unconstitutional; that a preliminary injunction 
issue against the primary election on September 6, 19621 
and the general election on November 6, 1962 on the basis 
o f such boundaries; that a permanent injunction issue; that 
unless a redistricting of such four districts be made, there 
be an election at large in New York County for the four 
Congressional seats in said County; and that absent such

Appendix A

1Request withdrawn during trial



2a

legislative action, the court appoint a special master to re­
define the boundaries of the four districts in question.

The plaintiffs allege that they reside and are registered 
voters in these respective districts and that each brings the 
action on his own behalf and all other residents of the re­
spective districts. They ask, because of their claim that 
they “ fairly and adequately represent” these other regis­
tered voters, that this be considered a “ class suit” .

The portion of the statute (Chap. 980) under attack 
establishes, according to plaintiffs, “ irrational, discrimina­
tory and unequal Congressional Districts in the County of 
New York and segregates eligible voters by race and place 
of origin” . Plaintiffs charge that the 17th Congressional 
District was “ contrived” to exclude “ non-white citizens and 
citizens of Puerto Rican origin”  and that the 18th, 19th 
and 20th districts “ have been drawn so as to include the 
overwhelming number of non-white citizens and citizens of 
Puerto Rican origin in the County of New York” . They 
also assert that the 17th is “ over-represented” and the 18th, 
19th and 20th are “ under-represented’ ’ .

This situation, plaintiffs say, has existed for many 
years, that there had been repeated and energetic efforts to 
seek legislative correction of the abridgement of plaintiffs’ 
constitutional rights but that they have been o f no avail 
“ because o f the existing unconstitutional apportionment of 
the Legislature of the State of New York” ; that the Legis­
lature in successive statutes has redrawn the district bound­
aries in accordance with shifts in non-white and Puerto 
Rican populations and that the 17th has a population 12% 
less than the 18th, 15.4% less than the 19th and 14% less 
than the 20th. These allegations have been set forth at some 
length because of the necessity of ascertaining whether they 
have been established by the proof.

Appendix A



3a

At the opening of the trial six individuals, Adam Clay­
ton Powell, J. Raymond Jones, Lloyd E, Dickens, Hulan E. 
Jack, Mark Southall and Antonio Mendez, by counsel moved 
to intervene. They were represented to be duly enrolled 
members of the Democratic Party and district leaders of 
the area comprising the 11th, 12th, 13th and 14th Assembly 
Districts. Adam Clayton Powell, a Negro, is now serving as 
Congressman from the (pre-1961) 18th Congressional Dis­
trict. Intervention was granted. The intervenors thereupon 
served their answer as intervening defendants alleging six 
defenses which, amongst other matters, denied that plain­
tiffs represented the class to which the intervenors belong 
and that the redistricting of the four Congressional Dis­
tricts in question deprived plaintiffs of their constitutional 
rights. As affirmative defenses they alleged, in substance, 
that the test for Congressional representation is based on 
population rather than race, that the Republican-controlled 
Legislature drew the new district boundaries “ along parti­
san political lines rather than racial lines”  to “ cut out as 
many democrats as they possibly could” , that judgment as 
sought by plaintiffs would place in jeopardy the constitu­
tional rights of Negroes and Puerto Ricans to representa­
tion in Congress, that a County-wide election at large would 
“ deprive Negroes and Puerto Ricans and other minorities 
o f fair representation and equal protection under the law” , 
that this is not a proper class action, that “ the real party- 
in interest in this law suit is the Democratic County Com­
mittee of the County of New York” , that said Committee 
o f which intervenors are members never authorized or 
approved plaintiffs’ action, and that plaintiffs are estopped 
from bringing this action because o f their failure to com­
mence it until some time after June 21, 1962 the initial 
date for nominating petitions.

Appendix A



4a

On the trial, plaintiffs presented certain statistical ma­
terial gathered from the 1960 census figures and various 
maps of Manhattan Island (New York County), At the 
request of the court, counsel for the Attorney-General sub­
mitted maps showing the many Congressional district 
changes since 1911. No proof was offered by any party 
that the specific boundaries created by Chapter 980 were 
drawn on racial lines or that the Legislature was motivated 
by considerations of race, creed or country of origin in 
creating the districts. Plaintiffs rely entirely upon their 
analyses and version o f certain statistics and would impute 
to the Legislature the inferences they draw therefrom.

After the Eighteenth Decennial Census (1960) had 
been taken, the President according to law (2. U. S. C. 2a) 
transmitted to the Congress a statement under date of 
January 10, 1961 showing the number of persons in each 
State and “ the number of Representatives to which each 
State would be entitled under an apportionment of the exist­
ing number of Representatives by the method of equal pro­
portions. The statement disclosed a total population of 
179,323,175 for the United States and 16,782,304 for New 
York State. Apportioning the 435 Congressional Repre­
sentatives amongst the States, New York became entitled 
to 41 instead of the 43 previously alloted under the 1950 
census.

As a result of this required change, the joint Legislative 
Committee on Reapportionment submitted to the Second 
Extraordinary Session o f the New York Legislature on 
November 9, 1961 its interim report wherein it stated the 
need for legislative action, namely, that because of the re­
duction in Congressional seats all the Representatives of 
the State would have to be elected at large “ unless new dis­

Appendix A



5a

tricts not exceeding in number the number of Representa­
tives apportioned to the state shall be created” . The Com­
mittee briefly reviewed the history of the Congressional 
district system as follows:

In the early days of the Republic, some of the states 
elected by districts and some at large. The desire 
for local representation, however, gradually led to 
the adoption o f the district method by the majority 
of the states. By 1842, o f the states entitled to more 
than one Representative, 22 were electing their Rep­
resentatives by districts, and only 6 were electing 
at large.
As the practice of electing by districts became firmly 
established. Congress, in connection with the suc­
ceeding apportionments of Representatives among 
the states, enacted statutes setting standards for the 
election of Representatives within the several states. 
In connection with each decennial census from 1840 
to 1910, with the exception of the census of 1850, 
Congress enacted a law of this character. The last of 
these laws was the Act of August 8, 1911 (2 U. S. 
C. A. § 2) (37 Stat. L. 13), which provided that dis­
tricts should consist of contiguous and compact ter­
ritory and contain as nearly as practicable an equal 
number o f inhabitants. There was no apportionment 
Act after the census o f 1920. The permanent act of 
June 18, 1929 (46 Stat. L. 13), as originally enacted 
and as amended by the Act of April 25, 1940 (2 
U. S. C. A. § 2a) (54 Stat. L. 162), contained no 
standards for the creation o f districts. In Wood 
against Broom, 53 S. Ct. 1, 287 U. S. 1, 77 L. Ed. 
131, a case involving the creation of Congressional 
districts after the apportionment under the Act of 
1929, the Supreme Court held that the provisions of 
the Act o f 1911 requiring that districts be of con­
tiguous and compact territory and, as nearly as prac­

Appendix A



6a

ticable of equal population, applied only to districts 
to be formed under the Act o f 1911. In Cole grove 
against Green, 66 S. Ct. 1198, 328 U. S. 549, 90 L. 
Ed. 1432, Plaintiffs urged that an act creating Con­
gressional districts substantially unequal in popula­
tion be held invalid as violating the Fourteenth 
Amendment o f the Federal Constitution. In that 
case the Supreme Court in its opinion, after citing 
with approval Wood against Broom, supra, stated 
that it was not within the competence of the court 
to grant the relief asked by the Plaintiffs.
Since the above cases, various bills have been intro­
duced in Congress to provide standards to be fol­
lowed by the state legislatures in creating Congres­
sional districts. None o f those bills has been enacted 
into law. At the present time, therefore, there are 
no Federal standards binding upon the states in 
creating Congressional districts, and there are no 
such standards to be found in the Constitution of 
statutes of New York.

The Committee then set forth the standards used by it 
in preparing its proposed bill, stating:

In the absence of Federal and State constitutional 
and statutory standards governing the creation of 
Congressional districts, your Committee has been 
obliged to determine for itself what, if any, such 
standards should be adopted by it in the preparation 
of a bill to be recommended to your Honorable 
Bodies. It is the conclusion of your Committee that 
the most important standard is substantial equality 
of population.
While exact equality of population is the ideal, it is 
an ideal that, for practical reasons, can never be 
attained. Some variation from it will always be 
necessary. The question arises as to what is a per­
missible fair variation.

Appendix A



7a

Your Committee has examined reports of Committee 
hearings on bills introduced in Congress bearing 
upon this subject, and reports and publications of 
authorities on this subject. Variations of from ten to 
twenty per cent from average population per district 
have been suggested from time to time. After con­
siderable study, your Committee decided that a maxi­
mum variation of fifteen per cent from average 
population per district, the variation recommended 
by the American Academy of Political Science and 
endorsed by former President Truman, would pre­
serve substantial equality of population and permit 
consideration to be given to other important factors 
such as community of interest and the preservation 
of traditional associations.

In addition to keeping the districts in its proposed 
bill within the maximum of the fifteen per cent varia­
tion from average population per district, your 
Committee has also created proposed districts of 
contiguous territory and has endeavored to preserve 
the several metropolitan areas of the state either in 
single districts or, where large populations made that 
impossible, in contiguous and closely allied districts.

New York City was singled out for special comment 
as follows:

In an attempt to assist the members o f the Legis­
lature in their analysis o f the consideration given 
Metropolitan New York by your Committee we 
would like to point out that the population of New 
York City according to the 1960 Federal decennial 
census is 7,781,984. 19 districts have been created 
in the City with an average population of 409,578 
per district. The remainder of the state has a popu­
lation of 9,000,400 and has 22 districts with an aver­
age population of 409,109 per district. The total

Appendix A.



8a

population of the state is 16,782,384. Dividing this
population by 41, the total number of Representa­
tives, gives an average population per district 
throughout the State o f 409,326. A  mere inspec­
tion of these figures will demonstrate that there has 
been no discrimination against New York City in 
the proposed bill.

Refining the population figures still further, it is obvious 
that New York County (Manhattan) with its population 
of 1,698,281 has approximately one-tenth of the total State 
population of 16,782,304 and, hence, should have on an 
equal proportion basis one-tenth of the 41 Congressional 
seats. This it has in being allotted four seats.

Plaintiffs do not question the necessity for the reduc­
tion of Congressional districts in the State from 43 to 41 
nor the boundaries of the 37 districts outside of New 
York County. Inspection of these 37 districts discloses 
a variation in population within New York City of from 
469,908 in the 12th District (Brooklyn) down to 349,850 
in the 15th District (also Brooklyn) and 348,940 in the 
24th District (B ro n x ); and in the upstate (in relation to 
New York City) and rural areas of from 460,409 in the 
30th District comprising the counties of Saratoga, Wash­
ington, Warren, Fulton, Hamilton, Essex, Clinton and part 
of Rensselaer to 353,183 in the 31st District consisting of 
St. Lawrence, Jefferson, Lewis, Franklin and Oswego 
counties. An example of a merger of rural and suburban 
interests is found in the 25th District where Putnam’s 
(rural) population (31,722) is merged with part of West­
chester’s (largely suburban) 406,687. Separating the 19 
New York City districts from the 22 in the rest of the State, 
if the 7,781,984 persons in New York City were equally 
divided amongst 19 districts, there should be 409,578 per­

Appendix A



9a

sons in each district. The remaining 9,000,000 persons 
divided in to 22 districts should provide an average of 
409,109 per district.

These figures are thus analyzed because plaintiffs fre­
quently employ the words “under-represented” in relation to 
the size of the 18th, 19th and 20th districts, namely, 
431,330, 445,175 and 439,456, respectively, and “ over-rep­
resented” with respect to the 17th district (382,320). 
Testing these numbers by taking the Legislative Commit­
tee’s “ maximum variation of fifteen per cent from average 
population per district” , the largest New York County dis­
trict, the 18th, is less than 9%  above the average and the 
smallest, the 17th, less than 7%  below the average. Only 
in Kings County is found the widest range of almost 15 % 
above and below the mean.2

During the trial the court made every effort to ascertain 
the real basis o f plaintiffs’ claim of constitutional violation. 
Plaintiffs stated that they intended to prove that the Legis­
lature in enacting Chapter 980 of the Laws of 1961 “ segre­
gated the voters [in Manhattan] by virtue of race and place 
o f origin” . They limit, however, their “ race” to “ non­
white” and their “place o f origin”  group to Puerto Rico. 
Selecting certain catch phrases from one of the Go million 
opinions (M r. Justice Whittaker), they argue that the 
Legislature intentionally fenced Negro citizens out of the 
17th District and fenced them into the 18th, 19th and 20th

2As Mr. Justice Black pointed out in his dissent in Colegrove v. 
Green, 328 U. S. 349:

There is not, and could not be except abstractly, a right of 
absolute equality in voting. At best there could be only a 
rough approximation. And there is obviously considerable lati­
tude for the bodies vested with those powers to exercise their 
judgment concerning how best to attain this, in full consistency 
with the Constitution.

Appendix A



10a

Districts. They ask this court to find an unconstitutional 
Legislative intent solely on the basis of their analysis of 
the population content of these districts.

At the outset this court (and courts generally) should 
be ever watchful that it is not being made the pawn of 
warring political factions.3 More than suspicion of this 
possibility is created by the pleadings. The intervenors 
assert that they are the six district leaders in Assembly 
Districts embraced within the Manhattan Congressional 
Districts and that the 18th District from which Congress­
man Powell is the present representative and others in 
“ public office” would be affected by any judgment in favor 
of plaintiffs.

Upon the trial no proof was offered which would jus­
tify a finding that plaintiffs represented a “ class” ; in fact, 
the intervenors’ opposing claim dispels any such conclusion. 
Neither plaintiffs nor the intervenors can speak for, or 
truly represent the wishes of, some 400,000 persons in 
their districts. Each individual, however, is entitled to the 
benefits o f constitutional equal protection and due process. 
But to receive judicial support for their respective causes, 
they must show more than a mere preference to be in some

Appendix A

3In Colegrove v. Green, 328 U. S. 549, Mr. Justice Frankfurter 
wrote:

Nothing is clearer than that this controversy concerns matters 
that bring courts into immediate and active relations with party 
contests.^ From the determination of such issues this Court 
has traditionally held aloof. It is hostile to a democratic sys­
tem to involve the Judiciary in the politics of the people. And 
it is not less pernicious if such judicial intervention in an es­
sentially political contest be dressed up in the abstract phrases 
of the law.

* * *
To sustain this action would cut very deep into the very being 
of Congress. Courts ought not to enter this political thicket.



11a

other district and associated for voting purposes with per­
sons o f other races or other countries o f origin.

Plaintiffs’ theories of unconstitutionality are difficult 
to pin down. First, they refer to disparity in size between 
the districts and have attempted in their own hypothetical 
districts to equalize almost exactly the population in each. 
They disclaim exact equality as a basis of unconstitutionality 
probably because of the history of 2 U. S. C. 2 (a ) and 
because of Wood v. Broom, 287 U. S. 1 (1932).

Although plaintiffs obliquely disavow the racial per­
centage theory, their statistical argument supports it. They 
show that of Manhattan’s 1,698,281 inhabitants the 1960 
census lists 1,058,589 or 62.3% as white (apparently all 
races and places of origin) and 639,692 or 37.7%  as “ non­
white and Puerto Rican origin” . Why the census so dis­
criminates, plaintiffs were unable to answer except as their 
witness said that the census limits races to non-whites and 
place of origin to Puerto Rico. Plaintiffs then show that of 
the four districts the percentages of non-whites and Puerto 
Rican are 3.1%, 58.2%, 19.8% and 18.9% in the 17th, 
18th, 19th and 20th Districts, respectively. From these 
figures plaintiffs ask this court to conclude as a matter of 
law that the Legislature in 1961 drew the district lines so 
as to intentionally deprive non-whites and Puerto Ricans 
of their constitutional rights. “ Constitutional rights” to do 
what still remains unanswered. Plaintiffs apparently want 
a higher percentage of non-whites and Puerto Ricans in 
the 17th. Their neighbors, the interveners, proclaim with 
equal vehemence that such a change would be violative of 
their rights to enjoy the redistricting as it now is. They 
claim, in effect, that to take a substantial number of non­

Appendix A



12a

whites and Puerto Ricans and to place them within the con­
fines of a different Congressional district (namely, the 
17th) would be an Acadia-like deportation designed to dis­
sipate and thus make ineffectual their votes. They assert 
that they now have an opportunity to elect persons of 
their own race to represent them and their interests to 
legislative bodies. Plaintiffs respond that this is of no im­
portance.

Finally and before considering the legal problems, if 
there be any, a brief review of New York County’s con­
gressional districts should be made. A  50-year period has 
been selected. In 1911 there were 9 full districts and parts 
of 4 other districts in New York County out of a total 
of 43 in the State. In 1917 the 1911 apportionment w7as 
amended changing the County to 10 full districts and parts 
o f 3 others. Rased on the 1910 census, the variation in 
the Congressional Districts Nos. 11-22 was slight, ranging 
from 204,498 to 219,772. After the 1920 census applying 
the 1922 Act, the variation was larger, probably due to 
population shifts, the law (from  available figures) being 
191,645 and the high 317,803. Wider disparity developed 
after the 1930 census, the low7 being 90,671 and the high 
381,212. After the 1940 census and the State was allotted 
45 districts, New York County was given 6 full districts 
and part of one other, the population range being from 
257,879 to 315,639. Not until after the 1950 census was 
New York County allotted self-contained districts, it re­
ceiving 6 out of 43 for the State, the smallest district hav­
ing a census population of 316,434 and the largest 336,441.

This suit is but one of many throughout the country 
seeking to take advantage of the Supreme Court’s decision

Appendix A



13a

Appendix A

in Baker v. Carr, 369 U. S. 186 (1962).4 To inject a racial 
angle plaintiffs have added Gomillion v. Lightfoot, 364 
U. S. 329, and the school segregation cases to support their 
thesis. However, the most drastic Procrustean treatment- 
will not conform the shape of the present case to the pat­
terns o f those cases. Baker v. Carr was simply a decision 
that a federal court has jurisdiction to deal with and remedy 
such a wide disparity in voting representation as to amount 
to a deprivation of due process and equal protection. There 
the situation was particularly aggravated because the Ten­
nessee Legislature had taken no action to comply with the 
state’s own Constitution. A  comparable hypothetical state

4Of the cases upon the subject of apportionment which have come 
to my attention, four have held the existing state apportionment pro­
visions constitutional:

W. M. C. A., Inc. v. Simon, Civil No. 1559, S. D. N. Y., 
Aug. 16, 1962 (Statutory Court) ;

Wisconsin v. Zimmerman, Civil No. 3540, W . D. Wise., 
July 25, 1962 (Statutory Court) (report of Special 
Master) ;

Caesar v. Williams, 9 Idaho Capital Report 161 (Sup. Ct. 
April 3, 1962);

Maryland Comm, for Fair Representation v. Tawes, 31 
U. S. L. Week 2155 (Md. Ct. App. Sept. 25, 1962) (up­
per house).

Others have found the apportionment statutes in conflict with the 
state constitution:

Sims v. Frink, 205 F. Supp. 245 (M . D. Ala. April 14, 
1962) (Statutory Court) ;

Harris v. Shanahan, No. 90,476, Dist. Ct. Shawnee County, 
Kan., May 31, 1962;

State ex rel Lein v. Sathre, 113 N. W . 2d 679 (Sup. Ct. 
N. D. Mar. 9, 1962) ;

Lein v. Sathre, 205 F. Supp. 536 (D. N. D. May 31, 1962) 
(Statutory Court) ;

Mikell v. Rousseau, No. 385, Sup. Ct. Chittenden County, 
Vt., May Term, 1962.

See also Start v. Lawrence, Equity No. 2536, 1962 Com­
monwealth No. 187, C. P. Dauphin County, Pa., June 13,



14a

of facts would exist had the New York Legislature taken 
no action since 1901 when New York City held a high 
percentage o f the State’s 37 seats whereas today the City’s 
population is only one-tenth of the State’s. But this factual 
situation o f non-action does not exist. The Legislature has 
taken revising action after each census and at present the 
ratio of voter to Representative is, as the Legislative Com­
mittee has said, on a “ substantial equality of population” 
basis.

The Gomillion case has no application whatsoever. 
There some 400 Negro residents of the city o f Tuskegee 
who were entitled to all the privileges of city residents in­
cluding voting were deliberately disenfranchised from such

1962 (court refused to determine whether the apportion­
ment statutes comported with the state and federal con­
stitutions until the legislature had time to act).

Still others have held the apportionment provisions invalid under the 
equal protection clause of the Fourteenth Amendment:

Sanders v. Gray, 203 F. Supp. 158 (N . D. Ga. April 28, 
1962) ( Statutory Court) ;

Toombs v. Fortson, 205 F. Supp. 248 (N . D. Ga. May 25, 
1962) (Statutory Court) ;

Moss v. Burkhart, Civil No. 9130, W . D. Okla., June 19, 
1962 (Statutory Court) ;

Baker v. Carr, 206 F. Supp. 341 (M . D. Tenn. June 22, 
1962) ( Statutory Court) ;

Maryland- Comm, for Fair Representation v. Tawes, Equity 
No. 13920, Cir. Ct. Anne Arundel County, Md., May 24, 
1962 (lower house) ;

Scholle v. Hare, Sup. Ct., Mich., July 18, 1962;
Fortner v. Barnett, No. 59965, Ch. Hinds County, Miss., 

1962;
Sweeney v. Notte, C. Q. No. 643, Sup. Ct., R. I., 1962.
Sims v. Frink, 208 F. Supp. 431 (M . D. Ala. 1962) (Sta­

tutory Court).

These cases for the most part involve wide disparity in the popula­
tion of voting districts.

Appendix A



15a

voting by a wholly irrational drawing of new city boun­
daries which did not even slightly veil the obvious purpose 
of excluding Negroes as city voters.

The school cases are equally irrelevant. I f  it is to be 
found as a fact that only in the 17th District is there and 
will there be throughout the years a Congressman who 
alone can properly speak for the electorate of Manhattan 
as their representative further consideration might be given 
to these cases. However, both major political parties would 
vigorously dispute a finding that a lone Congressman from 
New York’s 17th controls or vitally influences all actions 
by the Congress, no matter how able any such incumbent 
might be.

From various maps and figures plaintiffs ask this court 
to find constitutional deprivations. Actually plaintiffs 
have not even shown that their own voting status will be 
changed in any way. Prior to the reduction of New York 
County’s Congressional seats to four, there were six dis­
tricts, the 16th through 21st. In eliminating two, the Legis­
lature apparently used the existing framework. It enlarged 
the 17th substantially on the north cutting into the old 18th 
and slightly on the south and it merged the balance of the 
old 18th with the 16th. The old 19th, 20th and 21st were 
made into two districts extending from the northerly part 
o f Manhattan along the west side of the city around the 
southerly end of the island and up through the lower east 
side. Thus, the general district pattern was somewhat pre­
served despite the elimination o f two districts.

No proof was tendered that the Legislature in drawing 
the district lines in previous years was motivated or influ­
enced by any considerations which have become unconstitu­
tional during subsequent years. Plaintiffs wholly failed 
to support their allegation of “ repeated and energetic

Appendix A



16a

efforts”  to seek legislative correction or that efforts were 
unavailing because of unconstitutional apportionment. Any 
challenge that correction if needed could not be made be­
cause o f the composition of the State legislature is squarely 
met by the recent decision in W M CA Inc. et al v. Simon 
et al, 61 Civ. 1559, S. D. N. Y., August 16, 1962, wherein 
after a trial a three-judge court found with respect to the 
apportionment of Senate and Assembly districts that the 
apportionment provisions of the State of New York are 
rational, not arbitrary, are of substantially historical origin, 
contain no geographical discrimination, permit an electoral 
majority to alter or change the same and are not uncon­
stitutional under the relevant decisions of the United States 
Supreme Court. Certainly federal congressional redistrict­
ing would not affect New York legislative action and plain­
tiffs in this action have not attacked New York’s method of 
creating its own Legislature. Nor has any proof been 
offered to indicate in any way that the Legislature in its 
various congressional boundary enactments from 1901 to 
date has redrawn district lines in conformity with non-white 
and Puerto Rican population shifts.

This case presents an example of an attempt to apply 
theories of completely unrelated situations ( Baker v. Carr, 
Gomillion and the school cases). That the effort appears 
forced is not surprising. If the Legislature had created two 
Congressional districts in Manhattan each consisting of 
100,000 persons, one almost wholly of race A  and the other 
of race B and assigning the balance o f the County to two 
districts of 700,000 each, the question of discrimination 
might well be raised; but it did not so act.

No citizen of Manhattan, as a result of the legislative 
redistricting, has been deprived of his right to vote for the

Appendix A



17a

duly nominated candidates o f the party of his choice and 
in the area in which he resides. Wherever areas have to be 
divided into districts, there will be voters who may prefer 
to vote in districts other than their own but such deprivation 
is not a constitutional deprivation. In any large city it is 
not unusual to find that persons o f the same race or place 
of origin have a tendency to settle together in various 
areas. Often this understandable practice enables them 
to obtain representation in legislative bodies which other­
wise would be denied to them. Where geographic boun­
daries include such concentrations there will be a higher per­
centage of one race in one district than in others. To create 
districts based upon equal proportions of the various races 
inhabiting metropolitan areas would indeed be to indulge 
in practices verging upon the unconstitutional. Equally un- 
contitutional would appear to be plaintiffs’ suggestion that 
only in Manhattan should there be an election at large of 
its four Congressional Representatives and that the dist­
rict system be used elsewhere in the State. Any such legis­
lation would definitely tend to abridge the voting status, if 
not the actual voting rights, o f residents of Manhattan.

Plaintiffs having failed upon the facts and the law 
to establish any violation of their constitutional rights as 
a result o f the action of the New York Legislature in en­
acting Chapter 980 of the Laws o f 1961, the complaint must 
be dismissed. No costs.

F ein berg , D. J .

I concur in the result reached by Judge Moore because 
I feel that plaintiffs have not met their burden o f proving 
that the boundaries of the new 17th, 18th, 19th, and 20th 
Congressional Districts were drawn along racial lines, as

Appendix A



18a

they allege. I differ from the opinion of judge Moore, 
however, in two major respects.

1. Judge Moore’s opinion in several places implies that 
it is necessary for plaintiffs to show not only that the 
boundaries of the congressional districts were drawn on 
racial lines but also that there was some other dilution or 
dimunition of the plaintiffs’ right to vote. I disagree with 
this implication. I f plaintiffs had proved that the district 
lines were constituted on a racial basis, the fact that plain­
tiffs had an undiminished right to vote in such gerryman­
dered districts would be irrelevant. The constitutional vice 
would be use by the legislature of an impermissible stand­
ard, and the harm to plaintiffs that need be shown is only 
that such a standard was used. Gomiilion v. Lightfoot, 364 
U. S. 339 (1960), and Baker v. Carr, 369 U. S. 186 (1962), 
provide support for the view that racially gerrymandered 
districts violate the Fifteenth Amendment, which provides 
that: “ The right of citizens of the United States to vote 
shall not be denied or abridged . . . on account of race, color, 
or previous condition of servitude.” In Baker, Mr. Justice 
Douglas referred to the Gomiilion case as an instance 
“where a federal court enjoins gerrymandering based on 
racial lines,” 1 and further stated that:

“ Race, color, or previous condition of servitude 
is an impermissible standard by reason of the 
Fifteenth Amendment, and that alone is sufficient to 
explain Gomiilion v. Lightfoot, 364 U. S. 339.” 2

(369 U. S. at 250 n. 5.
2Id. at 344. But see the concurring opinion of Mr. Justice Whit­

taker in Gomiilion where he stated that there was no violation of the 
Fifteenth Amendment by racial redistricting as long as the complain­
ing voter enjoys the same right to vote as all others in the same dis­
trict. Gomiilion v. Lightfoot, 364 U. S. 339, 349 (1960). Under those 
circumstances, however, Mr. Justice Whittaker thought there would 
be a violation of the Equal Protection Clause of the Fourteenth 
Amendment. Ibid.

Appendix A



19a

Appendix A

It is true that the emphasis in the Gomillion opinion is on 
the deprivation o f a pre-existing right to a municipal vote. 
However, analysis o f that case indicates that the Negroes 
of Tuskegee were free to establish their own separate 
municipality merely by filing a petition signed by 25 per­
sons.3 The view that racially drawn districts per se would 
also violate the Equal Protection Clause of the Fourteenth 
Amendment finds support in the per curiam decisions o f the 
Supreme Court following Brown v. Board o f Educ., 347 
U. S. 483 (1954). These cases4 outlawed racial segregation 
in public parks, beaches, buses, and golf courses without 
any discussion of harm resulting from discrimination in the 
use o f those facilities. The issue can be posed by assuming 
a state statute which on its face indicated that all Negro 
voters would vote in one district and all white voters in 
another, with the number of persons in each district ap­
proximately equal. I have little doubt that such a statute 
would be held unconstitutional, but whether under the 
Fourteenth or Fifteenth Amendment, or both,5 need not be 
decided now, in view of plaintiffs’ failure to prove their 
case.

The interveners contend that redistricting along the 
lines suggested by plaintiffs would, in effect, jeopardize the

3See Lucas, Dragon In The Thicket: A Perusal of Gomillion v. 
Lightfoot, Supreme Court Review 194, 210-11 (1961), where the 
author also suggests additional reasons for viewing the case as bar­
ring any segregation of voters even absent a technical loss of voting- 
rights.

ANe'w Orleans City Park Improvement Ass’n v. Detiege, 358 U. S. 
54 (1958); Gayle v. Browder, 352 U. S. 903 (1956)'; Holmes v. 
Atlanta, 350 U. S. 879 (19 55 ); Mayor v. Dawson, 350 U. S. 877 
(1955); Muir v. Louisville Park Theatrical Ass’n, 347 U. S. 971 
(1954). See Fay v. New York, 332 U. S. 261, 292-93 (1947). See 
also Hernandez v. Texas, 347 U. S. 475, 478 (1954) ; Nixon v. Hern­
don, 273 U. S. 536, 541 (1927).

5Plaintiffs here rely on both Amendments.



20a

“ control” by non-whites and Puerto Ricans of at least one 
congressional district. This— the loss o f an alleged advan­
tage to the class of voters plaintiffs claim to represent-—is as 
irrelevant to the constitutional issue as the need to show 
some harm other than that inherent in the drawing o f dis­
trict lines on a racial basis. The argument assumes that 
under the Constitution there can be “good” segregation 
along racial lines as against “bad” segregation.6 With 
respect to redistricting, the answer to this is found in Mr. 
Justice Harlan’s famous phrase that the Constitution is 
color-blind.7

2. The case is a closer one for me than the opinion of 
Judge Moore would indicate it is for him. Plaintiffs did 
introduce evidence which might justify an inference that 
racial considerations motivated the 1961 reapportionment of 
congressional districts in Manhattan. However, other in­
ferences, as set forth below, are equally or more justifiable. 
Plaintiffs have a difficult burden to meet in attacking the 
constitutionality of this state statute. See Baker v. Carr, 
supra, at 266 (Stewart, J., concurring); W . M. C. A.,

®See Hughes v. Superior Court, 339 U. S. 460 (1950) (picketing 
to compel the hiring of employees in proportion to the racial origin 
of employer’s customers enjoined) ; cf. Progress Dev. Crp. v. Mitchell, 
182 F. Supp. 681 (N . D. 111. 1960), rev’d in part, 286 F. 2d 222 (7 
Cir. 1961) (real estate developer’s imposition of a “ benevolent” 
quota); Bittker, The Case of the Checker-Board Ordinance: An 
Experiment in Race Relations, 71 Yale L. J. 1387 (1962), and 
authorities collected therein.

7In his dissent in Plessy v. Ferguson, 163 U. S. 537, 559 (1896), 
Mr. Justice Harlan stated: “ There is no caste here. Our Constitu­
tion is color-blind, and neither knows nor tolerates classes among 
citizens. In respect of civil rights, all citizens are equal before the 
law. The humblest is the peer of the most powerful. The law regards 
man as man, and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the supreme law of the 
land are involved.”

Appendix A



21a

Inc. v. Simon, 208 F. Supp. 368, 373 (S. D. N. Y. 1962).
Upon analysis, I do not think that burden has been met.

In the 1961 redistricting, the legislature had to com­
press six New York County districts into four. This was 
done in what appears to be a logical fashion. Thus, in the 
17th Congressional District, upon which plaintiffs have 
particularly focused, the legislature started with the out­
lines of the District as it was before and moved the lines 
in a rational manner. The area was expanded considerably 
on the east to the East River and to the north in even and 
contiguous fashion. This resulted in straighter and ap­
parently more logical congressional lines than before, and 
most of the prior jigsaw appearance of the District lines 
on the eastern boundary was eliminated.8 Thus, examina­
tion of the actual changes effected by the 1961 redistrict­
ing does not support plaintiffs’ contention of racial dis­
crimination. It is proper, o f course, to focus primarily on 
these changes rather than the changes on the western bound­
aries of the 17th District legislated in 1941 and 1951. As 
to the 1941 changes, plaintiffs themselves concede in their 
post-trial memorandum that “ a pattern of discriminatory 
fencing out of the 17th District really began to emerge 
only with the 1951 redistricting.” 9 In any event, as to the 
western side of the 17th District generally (which the 1961 
redistricting did not change), the record indicates that if 
the zigzags were now eliminated, the number of non-whites 
and Puerto Ricans brought into the District by this cor­
rection o f the boundary lines would approximately equal 
the number of non-whites and Puerto Ricans excluded by

8The 17th District apparently had 49 lines prior to the 1961 re­
districting and 31 subsequent to it.

9Post-trial Brief for plaintiffs, p. 19.

Appendix A



22a

the change.101 am not asserting that prior lines, once drawn, 
could not become discriminatory because the legislature, 
for racial reasons, deliberately failed to act over the years. 
However, in this case the proof adduced falls far short of 
establishing that contention. Therefore, the principal area 
of inquiry must be the changes brought about by the 1961 
redistricting, and as to these, the district lines seem more 
rational than before.

One of plaintiffs’ principal contentions is that if the 17th 
District were to be expanded in any direction so as to be 
made reasonably equal in population to the other congres­
sional districts in New York County, any area to be added 
would substantially increase the percentage o f non-whites 
and Puerto Ricans in the 17th District. Plaintiffs argue, 
therefore, that the 17th District’s population was deliberately 
kept unreasonably low to avoid this result. However, al­
though the population of the 17th District is appreciably 
smaller than its neighboring districts, it is still only about 
27,000 below the average for the state, or less than 7 per 
cent, as Judge Moore points out. It is true that increasing 
the population of the 17th District to the average by moving 
the district lines up or down in contiguous fashion would 
probably result in a higher percentage of non-whites and 
Puerto Ricans in that District. However, a variation of only 
7 per cent from the average does not, in my mind, justify a 
finding of racial discrimination.

The dissenting opinion notes that defendants and the 
intervenors might have proved that the district lines in 
question were drawn “ as part of a political compromise be­
tween the major political parties”  but that no proof o f this 
was submitted. Although the intervenors raised as a defense

Appendix A

10Record, p. 134.



23a

the contention that the boundaries of the 17th District were 
formed “ along partisan political lines rather than racial 
lines,” there is no evidence in the record bearing on this 
issue.11 Therefore, as I see it, none of the opinions in this 
case deal with the question of whether the drawing of dis­
trict lines on a political basis would be constitutionally per­
missible.12

Apart from political considerations, then, the dissenting 
opinion concludes that “ the only available inference” from, 
the figures on percentages of non-whites and Puerto Ricans 
relied upon by plaintiffs is one of legislative intent to draw 
district lines on the basis o f race and national origin. I do 
not agree that this is the only available inference. On the 
record in this case, the figures give rise to another inference 
equally, or more, persuasive. That inference is that since 
the non-whites and Puerto Ricans in Manhattan live in 
certain concentrated areas (see Plaintiffs’ Exhibit 4 ), many 
combinations o f  possible congressional district lines, no 
matter how innocently or rationally drawn, would also 
result in comparable figures. This is made clear, for 
example, by one of plaintiffs’ three suggested alternative 
methods of drawing congressional district lines in Manhat­
tan. Under plaintiffs’ proposed Plan B, the percentage of 
non-whites and Puerto Ricans in one district would be 9.5

11 After the close of hearings, the Court requested the parties, by 
stipulation, to furnish additional information as to population, voting 
and enrollment figures for certain designated areas. However, plain­
tiffs objected to the relevance of this information and to the procedure 
by which it was being obtained. Therefore, the Court is not con­
sidering as part of the record before it the information which was 
furnished by defendants.

12In a supplemental brief, plaintiffs contend that it would not be. 
See Bickel, The Durability of Cole-grove v. Green, 72 Yale L.J. 39, 43 
(1962).

Appendix A



24a

per cent, while in another district it would be 59.1 per cent. 
Even though these percentages differ greatly, would racial 
discrimination be “ the only available inference”  from these 
figures? Clearly, since plaintiffs have suggested the plan, 
such an inference would not be available at all, much less 
be the only available inference.

The dissent also properly asks, “ What more need plain­
tiffs prove?” Some answers might be: a failure to build 
upon prior lines in a rational, logical manner, a greater 
population disparity, and an increase in boundary zigzag­
ging. If plaintiffs had shown, for example, a failure to in­
crease the population in the 17th District enough to keep 
it within a fair approximation of the statewide average, 
a stronger inference might be drawn that the population 
was deliberately kept small because adding to it could only 
increase the non-white percentage. In addition, if the in­
crease had been achieved by aggravating the jigsaw nature 
of the boundaries or by drawing them in a serpentine man­
ner,13 a different case might be presented. It is true that 
there was some jigsawing at the top and the bottom of the 
new 17th District, but this was very slight. For example, 
Stuyvesant Town, which has a very small non-white and 
Puerto Rican population, was added to the District at the 
bottom, but the immediately adjacent area to the west, with 
an appreciably higher percentage of non-whites and Puerto 
Ricans, was not. The addition of Stuyvesant Town to the 
District, however, does not give rise only to the inference of 
racial discrimination. It also gives rise to the inference, 
equally persuasive, that the social and economic background 
of the residents of Stuyvesant Town made a unit which 
logically had a community o f interest with the residents of

Appendix A

13Cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960).



25a

the 17th District.14 In short, based upon the entire record, 
I do not feel that plaintiffs have proved their case.

M u r p h y , D. J. (Dissenting).

The majority opinions both find that plaintiffs have 
failed in their proof, i.e., they have not proved a prima 
facie case o f unconstitutional deprivation of their rights.

I disagree and find that plaintiffs have borne their 
prima facie burden (Hernandez v. Texas, 347 U. S. 475 ) 
and because of the absence of any proof by defendants or 
intervenors they are entitled to judgment declaring the 
challenged portion of Chapter 980 unconstitutional in viola­
tion of the Equal Protection Clause of the Fourteenth 
Amendment. Let me premise my reasons with a few 
concessions.

I concede that there was a total absence of direct proof 
of any specific intent by the New York Legislature in 
drawing the lines of any district ; I concede that disparity 
alone in the population of one district compared to another 
or to a general state or city average is not dispositive; I

14See Baker v. Carr, 369 U. S. 186, 323 (1962) where Mr. Justice 
Frankfurter stated:

“ Apportionment, by its character, is a subject of extraordinary 
complexity, involving— even after the fundamental theoretical 
issues concerning what is to be represented in a representative 
legislature have been fought out or compromised— considera­
tions of geography, demography, electoral convenience, eco­
nomic and social cohesions or divergencies among particular 
local groups, communications, the practical effects of political 
institutions like the lobby and the city machine, ancient tradi­
tions and ties of settled usage, respect for proven incumbents of 
long experience and senior status, mathematical mechanics, 
censuses compiling relevant data, and a host of others.”

While it is true that this language came from the dissenting opinion, 
it does not appear that the majority of the Court would disagree with 
this analysis of the apportionment process.

Appendix A



26a

concede that of itself a district’s lines whether jigsaw,
straight, serpentine or otherwise would not be controlling; 
I concede that some disproportion of numbers of ethnic 
groups in adjoining districts would not be enough; I con­
cede that the federal courts should ordinarily refrain from 
entering into “ political thickets”  and that it is beyond our 
competence to suggest or supervise a remedy for unlawful 
apportionment. But see Inequities in Districting for Con­
gress: Baker v. Carr and Colegrove v. Green, 72 Yale 
L. j .  13 (1962).

The uncontradicted proof submitted by plaintiffs, how­
ever, establishes a visual figure picture of the end results 
of the recent redistricting of Manhattan Isle (New York 
County) as follows:

Manhattan has a population of 1,698,281 people and 
is entitled to four Congressmen. The census figures of 1960 
divided the ethnic groups into only two classes— white and 
non-white and Puerto Rican. These classes have been 
counted and according to the census 1,058,589 or 62.3% 
are white and 639,622 or 37.7% are non-white and Puerto 
Rican.

The district lines as fixed by Chapter 980 created the 
four districts in question with the following make-up:

Appendix A

Mon-White and
Total White Population Puerto Rican Origin

District Population % of District Population of District

17th ........  382,320 362,668 94.9% 19,652 5.1%
18th ........  431,330 59,216 13.7% 372,114 86.3%
19th . . .  445,175 318,223 71.5% 126,952 28.5%
20th . 439,456 318,482 72.5% 120,974 27.5%

Total . . . .  1,698,281 1,058,589 62.3% 639,692 37.7%

The following table shows the percent of non-white 
persons and persons o f Puerto Rican origin in each Con-



27a

eressional district in relation to the total number of sucho
persons in the entire county:

Appendix A

% of Non-White and
District Puerto Kican of County

1 7 t h . . . ..............    3.1%
18th ......................................... 58.2%
19th ......................................   19.8%
2 0 th .............................................  18.9%

100.0 %

The figure picture of the 17th District shows that the 
lines as drawn encompass a population 94.9% white and 
5.1% non-white and Puerto Rican. It further shows it has 
a population of 382,320 people, or between 15.4% and 12% 
less than any of the adjoining districts. Ih e  18th District 
encompasses a population that is 86.3% non-white and 
Puerto Rican and only 13.7% white. Its population of 
431,330 people is 12% more than the 17th and 5% above 
the state average.

It is my judgment that the only available inference from 
the above uncontradicted figure picture establishes per se 
a prima facie case of a legislative intent to draw Congres­
sional district lines in the 17th and 18th Districts on the 
basis of race and national origin. To me it fits foursquare 
with Mr. Justice Frankfurter’s statement in Gomillion v. 
Lightfoot, 364 U. S. 339, 341, that the act in question was 
not an ordinary geographical redistricting measure even 
within the familiar abuses of gerrymandering. Although 
Justice Frankfurter’s statement referred to the court s 
holding that there was a violation o f the Fifth Amendment 
this statement is equally apposite to the Equal Protection 
Clause of the Fourteenth Amendment under Brown v.



28a

Board o f Education, 347 U. S. 483. Cf. the concurring 
opinion o f Mr. Justice Whittaker in Gomillion at 349. The 
conclusion here is, as in Gomillion, irrestible, tantamount 
for all practical purposes, to a mathematical demonstration 
that the legislation was solely concerned with segregating 
white, and colored and Puerto Rican voters by fencing col­
ored and Puerto Rican citizens out of the 17th District and 
into a district o f their own (the 18th).

W e assume that had the district lines of the 17th Dis­
trict been drawn so as to exclude all non-white and Puerto 
Ricans, or the 18th to exclude all white, my brothers would 
agree that plaintiffs had established a prima facie case of 
per se segregation. Gomillion v. Lightfoot, supra. It is 
acknowledged, however, that plaintiffs’ uncontradicted evi­
dence demonstrates that New York County, an island hav­
ing 639,692 non-white and Puerto Ricans or 37.7% of the 
total population, was redistricted into four Congressional 
districts with one district, the 17th, having only 5.1% non­
whites and Puerto Ricans and the 18th with only 13.7% 
white.

The question then posed is— Does the fact that the 
Congressional district lines decreed by the State Legislature 
for the 17th District to encompass only 5.1% non-white 
and Puerto Rican and the 18th only 13.7% white as dis­
tinguished from 0% so dilute plaintiffs’ proof as to require 
them to prove more ? If so, did they do it when the uncon­
tradicted proof also showed that the 17th District had 
15.4% less people than the adjoining 19th District; 14% 
less than the 20th and 12% less than the 18th. My brothers 
say “ No” and I disagree.

It might very well be that the defendants and inter- 
venors could have offered proof to counteract the inference

Appendix A



29a

of racial segregation that plaintiffs proof implies but they 
did not— and furthermore they chose not to do so. They 
might have proved all of the factors enumerated by Mr. 
Justice Frankfurter in Baker v. Carr, 369 U. S. 186 at 323, 
that go into the complicated political potpourri of appor­
tionment. They might have proved that the lines were 
drawn as part of a political compromise between the major 
political parties to insulate certain sections for “ traditional 
purposes”— but the simple answer is that they did not.

What more need plaintiffs prove? Surely it cannot be 
argued that they must prove some oral or written statement 
made by the legislature either in the form of a committee 
report or from the manager of the bill, or statements from 
the legislators themselves. It is undisputed that no public 
hearings were had on the bill and that the only report filed 
was the interim report of the Joint Legislative Committee 
on Reapportionment referred to by Judge Moore. The 
bill recommended was submitted to the legislature on 
November 9, 1961, and passed on November 10, 1961, and 
was signed by the Governor that day. N. Y. Sess. Laws, 2d 
Extraordinary Sess. 1961, c. 980, §§ 110-12.

Judge Feinberg and I part company only on the quan­
tum of plaintiffs’ proof. He agrees that the plaintiffs are 
not required to prove any diminution or dilution of their 
voting rights. They prove their prima facie case once they 
show that the district lines were constituted on racial basis 
but he agrees with Judge Moore that the plaintiffs have 
no proved enough— but neither opinion tells us how much 
more or enough of what.

Judge Feinberg states that the principal area of the 
inquiry must be the changes brought about by the 1961 
redistricting. With this as his premise he points out that 
the 17th District has approximately only 7% less popula-

Appendix A



30a

tion than the average for the state and such disproportion 
does not justify a finding of racial discrimination. I agree.

All I say is, it is a factor or a fact to be considered with 
all of the others, keeping in mind that the legislature was 
dividing an island into four districts and such island con­
tained 37.7%  non-white and Puerto Ricans.

He also suggests that the word picture of figures would 
infer not discrimination along racial lines but rather that 
non-white and Puerto Ricans live in certain concentrated 
areas so that district lines encompassing these areas would 
necessarily include a very high percentage of non-whites and 
Puerto Ricans. This is exactly my point and also the plain­
tiffs’ . The pattern of the 18th District lines shows that they 
were drawn so that any district lines encompassing these 
areas would necessarily include a very high percentage of 
non-whites and Puerto Ricans. And, we might add, a very 
high percentage of whites in the 17th.

In answer to my question— What more need plaintiffs 
prove ? He says some answers might be— not should be, but 
might be : (a ) Failure to build on prior lines in a rational, 
logical manner. This presumes that the prior lines were 
without any constitutional infirmity. In any event, how 
does one build four districts on foundations of six districts ? 
(b ) A greater population disparity. It is suggested that 
if the plaintiffs had shown a failure to increase the popula­
tion in the 17th District enough to keep it without a fair 
approximation of the state average a stronger inference 
might be drawn that the population was deliberately kept 
small because adding to it could only increase the non-white 
and Puerto Rican percentage. The 17th District is 7%  
below the state average. Would 8% be enough, or 9% , or 
10%, etc. ? What is a fair approximation? Isn’t it really

Appendix A



31 a

a question of fact ? How do you weigh such questions when 
a defendant offers no proof? I submit that the scale tips 
toward the plaintiffs. The City of New York with 7,781,984 
people has been divided by the legislature into 19 districts 
with an average population per district of 409,578. It is 
true that the New York City average population almost 
equals the average population per district throughout the 
state. But why must we make comparisons with the entire 
19 districts in the City of New York or the entire 41 dis­
tricts in the state? W e are dealing with Manhattan Island 
which for all practical purposes is a unique metropolitan 
area with many well-known river to river cross streets and 
famous north and south or longitudinal streets. See, for 
example, the plaintiffs, other proof in which they demon­
strated by three hypothetical divisions how the island could 
have been divided into four districts on a logical and ra­
tional basis using the natural boundaries or well-known 
streets and avenues. I agree that such hypothetical districts 
are not conclusive but they do have some probative value 
and I think are helpful in pointing up the obvious segre­
gation that the legislature effected, (c ) An increase in 
boundary zigzagging. How much of an increase and how 
is the number of zigzags measured or counted, and do 
you compare the zigzagging lines with the lines drawn by 
the legislature in 1951 or 1941, and do you confine yourself 
to Manhattan Island or New York City or any district 
in any part of the state.

I agree that no plaintiff, or for that matter any person 
on Manhattan Island, has lost or been deprived of a right 
to vote for Congress or that his vote will not be counted 
but the parallel to Gomillion (concurring opinion) is clear. 
There it was a glaring exclusion of Negroes from a muni-

Appendix A



32a

cipal district. Here it is a subtle exclusion from a “ silk 
stocking district”  (as the 17th is so frequently referred to) 
and a jamming in of colored and Puerto Ricans into the 
18th or the kind of segregation that appeals to the inter- 
venors.

W e are told that the Fifteenth Amendment nullifies 
sophisticated as well as simple-minded discrimination. In 
my judgment the New York legislature has attempted, in 
violation o f the Equal Protection Clause of the Fourteenth 
Amendment, a sophisticated and subtle discrimination. A c­
cordingly, I would give judgment for plaintiffs that the 
challenged part of the act is unconstitutional.

Appendix A



lb

APPENDIX B

United States Constitution, Federal Statutes 
and State Statutes Involved

U n ited  States  Co n s t it u t io n ; Amendment X IV , § 1 :

“ All persons born or naturalized in the United 
States and subject to the jurisdiction thereof, are cit­
izens of the United States and of the state wherein 
they reside. No state shall make or enforce any law 
which shall abridge the privileges or immunities o f cit­
izens of the United States; nor shall any state deprive 
any person of life, liberty, or property without due 
process of law, nor deny to any person within its juris­
diction the equal protection of the laws. * * *”

U n ited  States C o n s titu tio n  ; Amendment X V , § 1:

“ The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or 
by any State, on account o f race, color, or previous 
condition of servitude. * * *”

F ederal St a t u t e s :

U. S. C., Title 42, Sections 1983 and 1988:

“ § 1983 Civil Action for deprivation o f rights—

Every person who, under color o f any statute, ordi­
nance, regulation, custom or usage, of any State or 
Territory subjects or causes to be subjected, any cit­
izen of the United States or other person within the 
jurisdiction thereof to the deprivation o f any rights, 
privileges or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an action



2b

at law, suit in equity, or other proper proceeding for 
redress.

“ §1988. The jurisdiction in civil and criminal mat­
ters conferred on the district courts by the provisions 
of this chapter and title 18 for the protection of all 
persons in the United States in their civil rights, and 
for their vindication, shall be exercised and enforced 
in conformity with the laws of the United States, so 
far as such laws are suitable to carry the same into 
effect; but in all cases where they are not adapted to the 
object or are different in the provisions necessary to 
furnish suitable remedies and punish offenses against 
law, the common law, as modified and changed by the 
constitution and statutes of the State wherein the court 
having jurisdiction of such civil or criminal cause is 
held, so far as the same is not inconsistent with the 
Constitution and laws of the United States, shall be 
extended to and govern the said courts in trial and 
disposition of the cause, and if it is of a criminal nature, 
in the infliction of punishment on the party found 
guilty.”

U. S. C. Title 28, Section 1343, § ( 3) :

“ The district courts shall have original jurisdiction 
of any civil action authorized by law to be commenced 
by any person. * * * To redress the deprivation, under 
color o f any State law, statute, ordinance, regulation, 
custom or usage, of any rights, privilege or immunity 
secured by the Constitution of the United States or 
by any Act o f Congress providing for equal rights of 
citizens or of all persons within the jurisdiction o f the 
United States.”

Appendix B



3b

The Federal Declaratory Judgment Act. U. S. C., 
Title 28, Sections 2201 and 2202:

“ § 2201. Creation of remedy.

In a case of actual controversy within its jurisdic­
tion, except with respect to Federal taxes, any court of 
the United States and the District Court for the Ter­
ritory of Alaska, upon the filing of an appropriate 
pleading, may declare the rights and other legal relations 
of any interested party seeking such declaration, 
whether or not further relief is or could be sought. Any 
such declaration shall have the force and effect of a final 
judgment or decree and shall be reviewable as such.”
“ § 2202. Further relief.

Further necessary or proper relief based on a 
declaratory judgment or decree may be granted, after 
reasonable notice and hearing, against any adverse 
party whose rights have been determined by such 
judgment.”

U. S. C. Title 2, Section 2a:

“ §2a. Reapportionment of Representatives; time 
and manner; existing decennial census figures as basis ; 
statement by President; duty of clerk

(a ) On the first day, or within one week thereafter, 
of the first regular session of the Eighty-second Con­
gress and of each fifth Congress thereafter, the Presi­
dent shall transmit to the Congress a statement showing 
the whole number of persons in each State, excluding 
Indians not taxed, as ascertained under the seventeenth 
and each subsequent decennial census of the population, 
and the number of Representatives to which each State

Appendix B



4b

would be entitled under an apportionment of the then 
existing number of Representatives by the method 
known as the method o f equal proportions, no State to 
receive less than one Member.

(b ) Each State shall be entitled, in the Eighty-third 
Congress and in each Congress thereafter until the tak­
ing effect o f a reapportionment under this section or sub­
sequent statute, to the number of Representatives shown 
in the statement required by subsection (a ) o f this sec­
tion, no State to receive less than one Member. It shall 
be the duty of the Clerk of the House of Representatives, 
within fifteen calendar days after the receipt of such 
statement, to send to the executive of each State a cer­
tificate of the number of Representatives to which such 
State is entitled under this section. In case of a vacancy 
in the office of Clerk, or of his absence or inability to dis­
charge this duty, then such duty shall devolve upon the 
Sergeant at Arms o f the House of Representatives; and 
in case of vacancies in the offices of both the Clerk and 
the Sergeant at Arms, or the absence or inability o f both 
to act, such duty shall devolve upon the Doorkeeper of 
the House of Representatives.

(c )  Until a State is redistricted in the manner pro­
vided by the law thereof after any apportionment, the 
Representatives to which such State is entitled under 
such apportionment shall be elected in the following man­
ner : (1 ) I f there is no change in the number o f Repre­
sentatives, they shall be elected from the districts then 
prescribed by the law of such State, and if any of them 
are elected from the State at large they shall continue 
to be so elected; (2 ) If there is an increase in the number 
of Representatives, such additional Representative or

Appendix B



5b

Representatives shall be elected from the State at large 
and the other Representatives from the districts then 
prescribed by the law of such State; (3 ) if there is a 
decrease in the number of Representatives but the num­
ber o f districts in such State is equal to such decreased 
number of Representatives, they shall be elected from the 
districts then prescribed by the law of such State; (4 ) 
if there is a decrease in the number of Representatives 
but the number of districts in such State is less than such 
number of Representatives, the number of Represen­
tatives by which such number of districts is exceeded 
shall be elected from the State at large and the other 
Representatives from the districts then prescribed by 
the law of such State; or (5 ) if there is a decrease in the 
number of Representatives and the number o f districts 
in such State exceeds such decreased number of Repre­
sentatives, they shall be elected from the State at large.”

Sta te  St a t u t e s : C h a pte r  980; 1961 Laws o f  the State 
o f  New Y ork

“ § 110. Present congressional districts
The congressional districts of this state, as exist­

ing immediately before the time this article takes effect, 
shall continue to be the congressional districts of the 
state until the expiration of the terms of the representa­
tives in congress then in office, except for the purpose 
of an election of representatives in congress for full 
terms beginning at such expirations.”

“ § 111. New congressional districts
Except as provided in section one hundred ten, the 

congressional districts of this state from and after the 
time this article takes effect, shall consist as follows:

*  *  *

Appendix B



6b

“ Se v e n t e e n t h . The Seventeenth Congressional 
District shall consist o f that part of New York County 
described as follows: Beginning at a point where East 
Fourteenth Street extended intersects the waters of 
the East River, thence Westerly along East Fourteenth 
Street extended and East Fourteenth Street to First 
Avenue, to East Nineteenth Street, to Third Avenue, 
through Cooper’s Square, to the Bowery, to Great Jones 
Street (W est Third Street), to The Avenue of the 
Americas (Sixth Avenue), to West Fourth Street, to 
Christopher Street, to Bleecker Street, to Abbington 
Square, thence Northerly along Eighth Avenue to West 
Fourteenth Street, to Seventh Avenue, to West Thirty 
Fourth Street, to Eighth Avenue, to West Fifty Fourth 
Street, to Ninth Avenue, thence Northerly along Ninth 
Avenue and Columbus Avenue, to West Seventy Third 
Street, to Central Park West, to the intersection of 
Cathedral Parkway, Central Park West and West One 
Hundred Tenth Street, thence Easterly along West One 
Hundred Tenth Street to Fifth Avenue, thence 
Southerly along Fifth Avenue to East Ninety Eighth 
Street, to Madison Avenue, to East Ninety Seventh 
Street, to Park Avenue, to East Ninety Sixth Street, 
to Lexington Avenue, to East Ninety First Street, to 
Third Avenue, to East Eighty Ninth Street, to East 
End Avenue, thence Northerly along East End Avenue 
and East End Avenue extended to the waters of the 
East River, thence through the waters of the East 
River and the East River Channel to the place of begin­
ning including Welfare Island.
(Population 1960 Federal Census 382,320)”

“ E ig h t e e n t h . The Eighteenth Congressional 
District shall consist of that part of New York County

Appendix B



7b

described as follows: Beginning at a point where West 
One Hundred Sixty Fifth Street extended Easterly 
intersects the waters of the Harlem River, thence 
Westerly along West One Hundred Sixty Fifth Street 
extended and West One Hundred Sixty Fifth Street to 
Edgecombe Avenue, to St. Nicholas Place, to West One 
Hundred Fiftieth Street, to Amsterdam Avenue, thence 
Southerly along Amsterdam Avenue to West One Hun­
dred Twenty Second Street, to Morningside Drive, to 
Cathedral Parkway, thence Easterly along Cathedral 
Parkway and West One Plundred Tenth Street to Fifth 
Avenue, thence Southerly along Fifth Avenue to East 
Ninety Eighth Street, to Madison Avenue, to East 
Ninety Seventh Street, to Park Avenue, to East Ninety 
Sixth Street, to Lexington Avenue, to East Ninety 
First Street, to Third Avenue, to East Eighty Ninth 
Street, to East End Avenue, thence Northerly along 
East End Avenue and East End Avenue extended to 
the waters of the Harlem River and through the waters 
o f the Harlem River, Hell Gate, East River, Harlem 
River, to the place of beginning, including Randalls 
Island, W ard’s Island and Mill Rock.
(Population 1960 Federal Census 431,330)”

“ N in e t e e n t h . The Nineteenth Congressional Dis­
trict shall consist of that part o f New York County 
described as follows: Beginning at a point where East 
Fourteenth Street extended intersects the waters o f the 
East River, thence Westerly along East Fourteenth 
Street extended and East Fourteenth Street, to First 
Avenue, to East Nineteenth Street, to Third Avenue, 
through Cooper’s Square to the Bowery, to Great Jones 
Street (W est Third Street), to The Avenue of the

Appendix B



8b

Americas (Sixth Avenue), to West Fourth Street, to 
Christopher Street, to Bleecker Street, to Abbington 
Square, thence Northerly along Eighth Avenue, to West 
Fourteenth Street, to Seventh Avenue, to West Thirty 
Fourth Street, to Eighth Avenue, to West Fifty Fourth 
Street, to Ninth Avenue, thence Northerly along Ninth 
Avenue and Columbus Avenue, to West Seventy Third 
Street, to Central Park West, to West Eighty Sixth 
Street, thence Westerly along West Eighty Sixth Street 
and West Eighty Sixth Street extended to the waters of 
the Hudson River, thence Southerly through the waters 
of the Hudson River, New York Bay, Buttermilk Chan­
nel, the East River to the place of beginning, including 
Governor’s Island, Bedloe’s Island and Ellis Island. 
(Population 1960 Federal Census 445,175)”

“ T w e n t ie t h . The Twentieth Congressional Dis­
trict shall consist of that part of New York County 
beginning at a point where West One Hundred Sixty 
Fifth Street extended Easterly intersects the waters of 
the Harlem River, thence Westerly along West One 
Hundred Sixty Fifth Street extended and West One 
Hundred Sixty Fifth Street to Edgecombe Avenue, 
to St. Nicholas Place, to West One Hundred Fiftieth 
Street, to Amsterdam Avenue, thence Southerly along 
Amsterdam Avenue to West One Hundred Twenty 
Second Street, to Morningside Drive, to Cathedral 
Parkway, to Central Park West, to West Eighty Sixth 
Street, thence along West Eighty Sixth Street extended 
to the waters of the Hudson River, thence Northerly 
through the waters of the Hudson River, Harlem River, 
to the dividing line between the County of Bronx and 
the County of New York, thence Northerly, Easterly

Appendix B



9b

and Southerly along said dividing line to the waters 
of the Harlem River, thence Southerly through the 
waters of the Harlem River to the place o f beginning.
(Population 1960 Federal Census 439,456)”

* * *
“ § 112. Definitions

“ The words ‘county’, ‘city’, ‘town’, ‘village’, ‘ward’, 
and ‘election district’ as used in this article refer to 
counties, towns, villages, wards and election districts 
as constituted on November first, nineteen hundred 
sixty-one.

“ § 2. This act shall take effect January first, nine­
teen hundred sixty-two.”

N ew  Y ork  Sta te  L eg islative  D o c u m e n t  N o. 45 (1961)

“ The text o f the Interim Report o f the Joint Legisla­
tive Committee on Reapportionment which was sub­
mitted to the Second Extraordinary Session o f the 
Legislature on November 9, 1961, follows':

To the Legislature of the State o f New York:

“ The Joint Legislative Committee on Reapportion­
ment created by concurrent resolution adopted March 
29, 1949, and last continued until March 31, 1962, by 
concurrent resolution adopted March 24, 1961, submits 
the following as its interim report, relating to the crea­
tion of new Congressional districts.”

N ecessity  for t h e  Creatio n  of N ew  
C ongressional  D istricts

“ Under Federal Law, after each Federal decennial 
census an apportionment of the four hundred and thirty-

Appendix B



10b

five Members of the House of Representatives is made 
among the several states by the method known as the 
method of equal proportions. Such apportionment in­
volves only a mathematical operation.

“ After the 1960 decennial census, the apportionment 
of Members of the House of Representatives by the 
above described method resulted in a reduction from 
43 to 41 of the number Representatives apportioned 
to New York. Federal Law further provides that, 
where the number of Representatives apportioned to a 
state is reduced and the number, as so reduced, is less 
than the number of districts in the state, all of the Rep­
resentatives apportioned to the state shall be elected at 
large, unless new districts not exceeding in number the 
number of Representatives apportioned to the state shall 
be created. Since New York now has 43 districts and 
only 41 Representatives have been apportioned to it 
under the present apportionment, it will be necessary to 
elect all 41 Representatives at large at the 1962 election, 
unless 41 new districts are created prior to that time. 
To include on the ballot for that year candidates for 
41 seats in the House o f Representatives in addition to 
candidates for state, local and judicial offices would, in 
the opinion of your committee, make a mockery o f the 
election.”

F ederal L a w  R eg u latin g  C ongressional  
D istr ic tin g  w it h in  t h e  States

“ The Federal Constitution provides for the appor­
tionment o f Representatives among the several states. It 
further provides that the times, places and manner of 
holding elections for Representatives shall be prescribed

Appendix B



lib

in each state by the Legislature thereof, but that Con­
gress may at any time by law make or alter such regu­
lations.

“ In the early days of the Republic, some of the states 
elected by districts and some at large. The desire for 
local representation, however, gradually led to the adop­
tion of the district method by the majority of the states. 
By 1842, of the states entitled to more than one Repre­
sentative, 22 were electing their Representatives by 
districts, and only 6 were electing at large.

“ As the practice o f electing by districts became firmly 
established, Congress, in connection with the succeeding 
apportionments of Representatives among the states, en­
acted statutes setting standards for the election of 
Representatives within the several states. In connection 
with each decennial census from 1840 to 1910, with the 
exception of the census of 1850, Congress enacted a law 
of this character. The last of these laws was the Act 
of August 8, 19111 (37 Stat.L. 13), which provided 
that districts should consist of contiguous and compact 
territory and contain as nearly as practicable an equal 
number o f inhabitants. There was no apportionment 
Act after the census of 1920. The permanent act of 
June 18, 1929 (46 Stat.L. 13), as originally enacted and 
as amended by the Act o f April 25, 19402 ( 54 Stat.L. 
162), contained no standards for the creation of dis­
tricts. In Wood against Broom, 53 S.Ct. 1, 287 U.S. 1, 
77 L.Ed. 131, a case involving the creation of Con­
gressional districts after the apportionment under the 
Act o f 1929, the Supreme Court held that the provisions

Appendix B

*2 U.S.C.A. § 2.
22 U.S.C.A. § 2a.



12b

of the Act o f 1911 requiring that districts be of con­
tiguous and compact territory and, as nearly as prac­
ticable of equal population, applied only to districts to 
be formed under the Act of 1911. In Colegrove against 
Green, 66 S.Ct. 1198, 328 U.S. 549, 90 L.Ed. 1432, 
Plaintiffs urged that an act creating Congressional dis­
tricts substantially unequal in population be held invalid 
as violating the Fourteenth Amendment of the Federal 
Constitution. In that case the Supreme Court in its 
opinion, after citing with approval W ood against Broom, 
supra, stated that it was not within the competence of 
the court to grant the relief asked by the Plaintiffs.

“ Since the above cases, various bills have been intro­
duced in Congress to provide standards to be followed 
by the state legislatures in creating Congressional dis­
tricts. None o f those bills has been enacted into law. 
At the present time, therefore, there are no Federal 
standards binding upon the states in creating Congres­
sional districts, and there are no such standards to be 
found in the Constitution of statutes of New York.”

Standards A dopted by t h e  C o m m it te e

“ In the absence o f Federal and State constitutional 
and statutory standards governing the creation of Con­
gressional districts, your Committee has been obliged to 
determine for itself what, if any, such standards should 
be adopted by it in the preparation of a bill to be recom­
mended to your Honorable Bodies. It is the conclusion 
of your Committee that the most important standard is 
substantial equality of population.

“While exact equality of population is the ideal, it is 
an ideal that, for practical reasons, can never be at-

Appendix B



13b

tained. Some variation from it will always be necessary. 
The question arises as to what is a permissible fair 
variation.

“ Your Committee has examined reports of Commit­
tee hearings on bills introduced in Congress bearing 
upon this subject, and reports and publications of au­
thorities on this subject. Variations of from ten to 
twenty per cent from average population per district 
have been suggested from time to time. After con­
siderable study, your Committee decided that a maxi­
mum variation of fifteen per cent from average pop­
ulation per district, the variation recommended by the 
American Academy of Political Science and endorsed 
by former President Truman, would preserve substantial 
equality of population and permit consideration to be 
given to other important factors such as community of 
interest and the preservation of traditional associations.

“ In addition to keeping the districts in its proposed 
bill within the maximum of the fifteen per cent varia­
tion from average population per district, your Com­
mittee has also created proposed districts of contiguous 
territory and has endeavored to preserve the several 
metropolitan areas of the state, either in single districts 
or, where large populations made that impossible, in 
contiguous and closely allied districts.”

N ew  Y ork  C it y  and  t h e  R e m a in d e r  of t h e  State

“ In an attempt to assist the members of the Legis­
lature in their analysis o f the consideration given Met­
ropolitan New York by your Committee we would like 
to point out that the population of New York City 
according to the 1960 Federal decennial census is

Appendix B



14b

7,781,984. 19 districts have been created in the City 
with an average population of 409,578 per district. The 
remainder of the state has a population o f 9,000,400 
and has 22 districts with an average population of 
409,109 per district. The total population of the state 
is 16,782,384. Dividing this population by 41 the total 
number of Representatives gives an average popula­
tion per district throughout the State of 409,326. 
A  mere inspection o f these figures will demonstrate that 
there has been no discrimination against New York 
City in the proposed bill.”

C on clu sio n

“ The proposed bill of the Committee and the exhibits 
annexed thereto are included in the Appendix3 following 
this report.”

Appendix B

A ck n o w led g m en ts

“ Your Committee wishes to express its thanks to 
Mr. C. Burr Reed, Consultant to the Committee and 
to its Counsel, Associate Counsel and Staff for their 
assistance to the Committee in carrying out its task.

Dated: November 9, 1961.

Respectfully submitted,

R obert C. M cE w e n , Chairman 
R obert M . Q u ig ley  
A lonzo  L. W aters 
Jo h n  H . H ughes 
W il l ia m  Sadler”



APPENDIX C

Plaintiffs’ Exhibits 2B, 3 and a 
composite o f  4, 4A and 4B



lc

Appendix C
Plaintiffs’ Exhibit 2B



2c

PLAINTIFFS’ EXHIBIT 3

The following table, based upon the 1960 census figures, shows 
the population and racial and group composition o f the four districts.

Non-White and
Total White* Puerto Bican Origin* **

Appendix C

District Population Population % of District Population % of District

17th ........ . . . .  382,320 362,668 94.9% 19,652 5.1%
18th ........ . . . .  431,330 59,216 13.7% 372,114 86.3%
19th ........ . . . .  445,175 318,223 71.5% 126,952 28.5%
20th ........ . . . .  439,456 318,482 72.5% 120,974 27.5%

T otal 1,698,281 1,058,589 62.3% 639,692 37.7%

The following table shows the per cent of non-white persons and 
persons o f Puerto Rican origin in each Congressional district in rela­
tion to the total number of such persons in the entire County:

% of Non-White 
and

Puerto Bican
District of County

17th
19th
19th
20th

3.1%
58.2%
19.8%
18.9%

100.00%

♦Excluding persons of Puerto Rican origin.
**At present, the census figures for Puerto Ricans are available only on the 

basis of census tracts, some of which overlap Congressional District boundaries. 
The figures in the table tend to overstate the Puerto Rican population in the 
17th district. The separate classification of non-white persons and persons of 
Puerto Rican origin derives from the census figures. See also N. Y. City Board 
of Education, Toward Greater Opportunity 155 (1960), classifying schools accord­
ing to their percentage of Negro, Puerto Rican and other students. The break­
down between non-white and Puerto Rican origin by Congressional district is 
as follows:

Puerto Bican
Non-White Origin

District Population Population

17th .......................................  9,103 10,549
18th .......................................  298,011 74,103
19th .......................................  48,175 78,777
20th .......................................  71,170 49,804

T otal ...................................  426,459 213,233



V►--A.

S'S' 
"S* .

r>

o

17 TH GONG. DIST.
AND B O U N D A R Y  
A REA STU D Y

mm OLD 17TH 
NEW 17 TH

WHITE PU ERTO  RICAN
AND N O N -  WHITE

%

0 -4 .9  
S - 9.9 
10-14.9  
15 - 19.9 
10*34 .9  
35 -49.9  
50 -74.9  
75 -100.0

ast-

P
laintiffs’ E

xhibits 4, 4A
 and 4B

 as a C
om

posite



PROOF OF SERVICE

I, Jerome  T. O ran s , one o f the attorneys for Yvette 
M. Wright, Horacio L. Quinones, Darwin Bolden, Benny 
Cartagena, Ramon Diaz, Joseph R. Erazo, Blorneva Selby, 
Walsh McDermott and Seth Dubin, appellants herein, and 
a member o f the Bar of the Supreme Court of the United 
States, hereby certify that on the day of March,
1963, I served copies of the foregoing Jurisdictional State­
ment on the several parties thereto, as follows:

1. On Nelson A. Rockefeller, Louis Lefkowitz and 
Caroline K. Simon, defendants herein, by mailing a copy, 
in a duly addressed envelope, with first class postage pre­
paid, to their attorney of record, Irving Galt, Esq., As­
sistant Solicitor General, 80 Centre Street, New York, 
New York.

2. On Denis J. Mahon, James M. Power, John R. 
Crews and Thomas Mallee, defendants herein, by mailing 
a copy, in a duly addressed envelope, with first class postage 
prepaid, to their attorney of record, Leo A. Larkin, Esq., 
Corporation Counsel of the City of New York, 1656 Mu­
nicipal Building, New York, New York.

3. On Adam Clayton Powell, J. Raymond Jones, Lloyd 
E. Dickens, Hulan E. Jack, Mark Southall, and Antonio 
Mendez, defendant-intervenors herein, by mailing a copy, 
in a duly addressed envelope, with first class postage pre­
paid, to their attorneys of record, Jawn A. Sandifer, Esq., 
271 West 125th Street, New York, New York, Robert W. 
Seavey, Esq., 405 Lexington Avenue, New York, New 
York; Morris Sterenbuch, Esq., 11 West 42nd Street, 
New York, New York; and William C. Chance, Esq., 225 
Broadway, New York, New York.

Jerome T. Orans 
10 East 40th Street 

New York 16, New York



(9696)