Moorer v. South Carolina Appellant's Appendix

    Bupumt (Emtrt of tfto Itttteii States
October Term, 1972 

No..............

In th e

National A ssociation foe the A dvancement of Colored 
People, New  Y ork City R egion of New  Y ork 

Conference of B ranches, et al.,
Appellants,

v.

New Y ork, on behalf of New York, Bronx, and 
Kings Counties,

Appellees.

National A ssociation for the A dvancement of Colored 
People, New  Y ork City R egion of N ew  Y ork 

Conference of B ranches, et al.,
Appellants,

v.

U nited States of A merica,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

Jack Greenberg 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

W iley B ranton
500 McLacklen Bank Building 
666 Eleventh St., N.W. 
Washington, D.C. 20001

Counsel for Appellants



I N D E X

PAGE

Opinion B elow ........................................................................ 2

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

Statutes Involved ...............................................................  3

The Question Presented .................................................. 7

Statement of the Case ..............................................   7

The Question Presented is Substantial............................  11

1. The Cooper Amendment was expressly intended
to place three New York counties under sec­
tions 4 and 5 of the Voting Rights A c t ............. 12

2. The United States improperly declined to op­
pose exempting the three New York counties 
from sections 4 and 5 ............................................  16

3. The District Court clearly erred in granting
the exemption and denying appellant leave to 
intervene ...................................................................  20

Conclusion ............................................................................. 28

A ppendix A —

Order of the District C ourt........................................  la

Judgment of the District Court ................................  3a

Notice of A ppeal...........................................................  5a

A ppendix B—

Memorandum of the United States ..........................  7a

Affidavit of the Assistant Attorney General......... 8a



11
T able of A uthorities

Cases: page

Allen v. Board of Elections, 393 U.S. 544 (1969) .......20, 21
Apache County v. United States, 256 F.Supp. 903 

(D.Ct. D.C., 1966) ........................................................20,21

Cascade National Gas Corporation v. El Paso Natural
Gas Company, 386 U.S. 129 (1967) ...............21,22,26-27

Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.
N.Y., 1971) .......................................................................  25

Council of Supervisory Association of the Public 
Schools of New York City v. Board of Education 
of the City of New York, 23 N.Y.2d 458, 297 N.Y.S.2d 
547, N.E.2d 204 (1969) .................................................. 25

Gaston County v. United States, 395 U.S. 285 (1969) ....3,15,
18, 25, 27

In Be Skipwith, 180 N.Y.S.2d 852, 14 Misc. 2d 325 
(1958) ............................................................................... 25

Katzenbach v. Morgan, 384 U.S. 641 (1966) ...........15,18, 27

National Association for the Advancement o f Colored 
People v. New York City Board of Elections, 72
Civ. 1460 ......................................................................... 9, 20

Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ........... 22

Pellegrino v. Nesbit, 203 F.2d 263 (9th Cir., 1953) .......  22
Pyle-National Co. v. Amos, 173 F.2d 425 (7th Cir., 

1949) .................................................................................  22

Sam Fox Publishing Co. v. United States, 366 U.S.
683 (1961) .......................................................................  20

S.E.C. v. Bloomberg, 299 F.2d 315 (1st Cir., 1962) .... 22 
Stadin v. Union Elec. Co., 309 F.2d 912 (8th Cir., 1962) 22



United States v. Rosenberg, 195 F.2d 583 (2d Cir., 
1952) ................................................................................. 19

Statutes and Regulations:

28 U.S.C. §2284 ........................................................... 2
42 U.S.C. §1973b, Voting Rights Act of 1965,

§4 ................................................................... 2,3,7,8,12
42 U.S.C. §1973c, Voting Rights Act of 1965,

§5 ...................................................................................  5
Rule 24, Federal Rules of Civil Procedure ............. 20

Other Authorities:

McCormick on Evidence ............................................  19
3B Moore’s Federal Practice....................................  20
Blascoer, Colored School Children in New York 

(1915) .......................................................................  24
Bulletin of the New York Public Library, “ Ethi­

opia Unshackled: A brief history of the educa­
tion of Negro Children in New York City”
(1965) .......................................................................  24

Metropolitan Applied Research Center, Selection
From Stanines Study of 1969-70 (1972) ........... 23

Public Education Association, The Status of the 
Public School Education of Negro and Puerto
Rican Children in New York City (1955) .........  23

Report of the Mayor’ s Commission on Conditions
in Harlem ..............................................................23-24

United Bronx Parents, Distribution of Educational 
Resources Among the Bronx Public Schools
(1968) .......................................................................  23

36 Fed. Reg. 5809 ...................................................... 8
36 Fed. Reg. 18186-190 ............................................  9
114 Cong. Rec........................................................ 13-16,18
116 Cong. Rec..............................................................  12



Supreme (Emtrt of tlio Untttfi States
October Term, 1972

No..............

In th e

N ational A ssociation foe the A dvancement of Colored 
People, New  Y ork City R egion of New  Y ork 

Conference of B ranches, et al.,
Appellants,

v.

N ew  Y ork, on behalf of New York, Bronx, and 
Kings Counties,

Appellees.

National A ssociation for the A dvancement of Colored 
People, New  Y ork City R egion of New  Y ork 

Conference of B ranches, et al.,
Appellants,

v.

U nited S tates of A merica,
Appellee.

o n  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t
FOR THE DISTRICT OF COLUMBIA

JURISDICTIONAL STATEMENT

Appellants1 appeal from the judgment of the United 
States District Court for the District of Columbia, entered

1 The appellants, applicants for intervention in the District 
Court, are the New York City Region of New York Conference of 
Branches of the National Association for the Advancement of 
Colored People, Simon Levine, Antonia Vega, Samuel Wright, 
Waldaba Stewart and Thomas Fortune.



2

on April 13, 1972, denying appellants’ motion to intervene, 
and from the order of that court, entered on April 25, 
1972, denying appellants’ motion to alter judgment. Appel­
lants submit this Statement to show that the Supreme 
Court of the United States has jurisdiction of the appeal 
and that a substantial question is presented.

Opinion Below

The District Court for the District of Columbia issued 
no opinion in connection with this case. The judgment of 
the District Court, entered April 13, 1965, denying appel­
lants’ motion to intervene, and the order of the District 
Court, entered April 25, 1972, denying appellants’ motion 
to alter judgment, are set out in Appendix A hereto.

Jurisdiction

This suit was brought by the State of New York, under 
42 U.S.C. §1973b, to obtain for three counties of that state 
an exemption from certain provisions of the Voting Rights 
Act of 1970. The matter was heard before a three-judge 
panel pursuant to 42 U.S.C. §1973b and 28 U.S.C. §2284. 
Shortly after the United States declined to oppose the 
granting of such an exemption, appellants moved to inter­
vene as party defendants. The judgment of the District 
Court denying that motion and granting the exemption 
was entered on April 13, 1972, and the order of the District 
Court denying appellants’ motion to alter judgment was 
entered on April 25, 1972. The notice of appeal was tiled 
in that court on May 11, 1972. The jurisdiction of the 
Supreme Court to review this decision by direct appeal 
is conferred by Title 42, United States Code, section 
1973b(a). The jurisdiction of the Supreme Court to review



3

the judgment on direct appeal in this case is sustained in 
Gaston County v. United States, 395 U.S. 285 (1969).

Statutes Involved

Section 1973b, 42 United States Code, provides

§1973b. Suspension of the use of tests or devices in 
determining eligibility to vote-Action by state or polit- 
itical subdivision for declaratory judgment of no denial 
or abridgement; three-judge district court; appeal to 
Supreme Court; retention of jurisdiction by three- 
judge court

(a) To assure that the right of citizens of the United 
States to vote is not denied or abridged on account 
of race or color, no citizen shall be denied the right 
to vote in any Federal, State, or local election because 
of his failure to comply with any test or device in any 
State with respect to which the determinations have 
been made under subsection (b) of this section or in 
any political subdivision with respect to which such 
determinations have been made as a separate unit, 
unless the United States District Court for the District 
of Columbia in an action for a declaratory judgment 
brought by such State or subdivision against the 
United States has determined that no such test or 
device has been used during the ten years preceding 
the filing of the action for the purpose or with the 
effect of denying or abridging the right to vote on 
account of race or color: Provided, That no such de­
claratory judgment shall issue with respect to any 
plaintiff for a period of ten years after the entry of 
a final judgment of any court of the United States, 
other than the denial of a declaratory judgment under



4

this section, whether entered prior to or after the 
enactment of this subchapter, determining that denials 
or abridgments of the right to vote on account of race 
or color through the use of such tests or devices have 
occurred anywhere in the territory of such plaintiff.

An action pursuant to this subsection shall be heard 
and determined by a court of three judges in accor­
dance with the provisions of section 2284 of Title 28 
and any appeal shall lie to the Supreme Court. The 
court shall retain jurisdiction of any action pursuant 
to this subsection for five years after judgment and 
shall reopen the action upon motion of the Attorney 
General alleging that a test or device has been used 
for the purpose or with the effect of denying or abridg­
ing the right to vote on account of race or color.

If the Attorney General determines that he has no 
reason to believe that any such test or device has 
been used during the ten years preceding the filing of 
the action for the purpose or with the effect of denying 
or abridging the right to vote on account of race or 
color, he shall consent to the entry of such judgment.

Required factual determinations necessary to al­
low compliance with tests and devices; publication 
in Federal Register

(b) The provisions of subsection (a) of this section 
shall apply in any State or in any political subdivision 
of a state which (1) the Attorney General determines 
maintained on November 1, 1964, any test or device, 
and with respect to which (2) the Director of the 
Census determines that less than 50 per centum of the 
persons of voting age residing therein were registered 
on November 1, 1964, or that less than 50 per centum 
of such persons voted in the presidential election of 
November 1964. On and after August 6, 1970, in addi­



5

tion to any State or political subdivision of a State 
determined to be subject to subsection (a) of this 
section pursuant to the previous sentence, the pro­
visions of subsection (a) of this section shall apply 
in any State or any political subdivision of a State 
which (i) the Attorney General determines maintained 
on November 1, 1968, any test or device, and with 
respect to which (ii) the Director of the Census de­
termines that less than 50 per centum of the persons 
of voting age residing therein were registered on No­
vember 1, 1968, or that less than 50 per centum of 
such persons voted in the presidential election of No­
vember 1968.

A determination or certification of the Attorney 
General or of the Director of the Census under this 
section or under section 1973d or 1973k of this title 
shall not be reviewable in any court and shall be 
effective upon publication in the Federal Register.

Definition of test or device

(c) The phrase ‘test or device’ shall mean any re­
quirement that a person as a prerequisite for voting 
or registration for voting (1) demonstrate the ability 
to read, write, understand, or interpret any matter, 
(2) demonstrate any education achievement or his 
knowledge of any particular subject, (3) possess good 
moral character, or (4) prove his qualifications by the 
voucher or registered voters or members of any other 
class.

Section 1973c, 42 United States Code, provides

§1973c. Alteration of voting qualifications and proce­
dures; action by state or political subdivision for 
declaratory judgment of no denial or abridgement of



6

voting rights; three-judge district court; appeal to 
Supreme Court

Whenever a State or political subdivision with re­
spect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the first sentence of section 1973b(b) of this 
title are in effect shall enact or seek to administer 
any voting qualification or prerequisite to voting, or 
standard, practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1964, or whenever a State or political subdivision with 
respect to which the prohibitions set forth in section 
1973b(a) of this title based upon determinations made 
under the second sentence of section 1973(b) of this 
title are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or stan­
dard, practice, or procedure with respect to voting 
different from that in force or effect on November 1, 
1968, such State or subdivision may institute an action 
in the United States District Court for the District 
of Columbia for a declaratory judgment that such 
qualification, prerequisite, standard, practice, or pro­
cedure does not have the purpose and will not have 
the effect of denying or abridging the right to vote 
on account of race or color, and unless and until the 
court enters such judgment no person shall be denied 
the right to vote for failure to comply with such 
qualification, prerequisite, standard, practice, or pro­
cedure : Provided, That such qualification, prerequisite, 
standard, practice, or procedure may be enforced with­
out such proceeding if the qualification, prerequisite, 
standard, practice, or procedure has been submitted 
by the chief legal officer or other appropriate official 
of such State or subdivision to the Attorney General 
and the Attorney General has not interposed an objec-



7

tion within sixty days after such submission, except 
that neither the Attorney General’s failure to object 
nor a declaratory judgment entered under this section 
shall bar a subsequent action to enjoin enforcement 
of such qualification, prerequisite, standard, practice, 
or procedure. Any action under this section shall be 
heard and determined by a court of three judges in 
accordance with the provisions of section 2284 of 
Title 28 and any appeal shall lie to the Supreme Court.

The Question Presented

Where the State of New York sues for an exemption 
from sections 4 and 5 of the Voting Rights Act of 1965, 
as amended, and the United States expressly and without 
justification declines to defend the action, should inter­
vention be granted to a civil rights group and individuals 
who have initiated other litigation to compel compliance 
with sections 4 and 5 and who offer specific allegations 
and substantial documentary evidence in opposition to 
the granting of such an exemption.

Statement of the Case

Under the 1970 amendments to the Voting Rights Act 
of 1965, three counties in the state of New York—Bronx, 
Kings (Brooklyn) and New York (Manhattan)—are sub­
ject to coverage by sections 4 and 5 of the Act. Those 
sections are applicable because on November 1, 1968, New 
York State employed a literacy test as a prerequisite to 
registration and less than 50 percent of the persons of 
voting age were registered on that date or voted in the 
1968 presidential election in each of those three counties. 
42 U.S.C. § 1973b(b). Section 5 provides that no changes 
in the election laws or practices of such covered areas may



8

be enforced until the state or subdivision involved has 
either submitted those changes to the Attorney General 
without his objecting to them for a period of 60 days, 
or has obtained a declaratory judgment from the United 
States District Court for the District of Columbia that 
the changes do not have the purpose and will not have 
the effect of denying or abridging the right to vote on 
account of race or color. 42 U.S.C. §1973c(a). Section 4 
also provides that a state or subdivision subject to this 
advance clearance procedure may obtain an exemption 
therefrom by bringing an action for a declaratory judg­
ment against the United States and obtaining from the 
United States District Court for the District of Columbia 
a determination that the literacy test employed by the 
state or subdivision has not been used during the 10 years 
preceding the filing of that action for the purpose or with 
the effect of denying or abridging the right to vote on 
account of race or color. 42 U.S.C. §1973b(a).

The 1970 amendments to the Voting Rights Act of 1965, 
which for the first time subjected the three counties to 
these special procedures, became law on June 22, 1970. 
Although it was known at that time that the counties 
would be covered, that coverage did not go into effect 
until March 27, 1971, following the formal publication 
of certain determinations by the Director of the Bureau 
of the Census. See 36 Fed. Reg. 5809. On December 16, 
1971, the state of New York brought this action in the 
United States District Court for the District of Columbia 
to secure an exemption for New York, Bronx and Kings 
counties. The United States answered on March 10, 1972. 
On March 17, 1972, New York moved for summary judg­
ment.

During the pendency of this matter, but prior to any 
action therein by the District Court, the State of New



9

York enacted legislation altering the boundaries of the 
congressional, Assembly, and State Senate districts in the 
three counties. The statute altering the Assembly and 
Senate districts was enacted on January 14, 1972, and on 
January 24, 1972 these changes were submitted to the 
Attorney General by the state of New York. On March 
14, 1972, the Attorney General rejected the submission 
on the ground that it lacked information required by the 
applicable regulations. 36 Fed. Reg. 18186-190. The changes 
in the congressional districts, enacted on March 28, 1972, 
were never submitted to the Attorney General. Immedi­
ately upon the passages of these two redistricting laws 
and despite the absence of compliance with sections 4 
and 5, officials in all three counties took steps to implement 
the changes, including redistribution of voter registration 
cards among the new districts and printing and distribut­
ing nomination petitions.

On March 21, 1972, counsel for appellants informed the 
Department of Justice by telephone that appellants in­
tended to bring an action to enjoin enforcement of the 
new district lines until section 5 had been complied with, 
and indicated that appellants would urge the Attorney 
General to object to the new district lines when they were 
submitted to him on the ground, inter alia, that the lines 
had been drawn in such a way as to minimize the voting 
strength of blacks, Puerto Ricans, and other minorities. 
Such an action was filed by appellants 17 days thereafter 
in the Southern District of New York, National Association 
for the Advancement of Colored People v. New York City 
Board of Elections, 72 Civ. 1460. Counsel for appellants 
also advised the Department attorneys that the New York 
Advisory Committee to the United States Civil Rights Com­
mission intended to hold hearings in April, 1972 regarding 
the new district lines in the three counties to assist the



10

Commission in deciding whether to urge the Attorney Gen­
eral to object to those changes in New York law. During the 
same discussion with the Department of Justice, counsel 
for appellants learned for the first time of the pendency 
of the instant action and of New York’s motion for sum­
mary judgment. On three separate occasions, March 21, 
March 29, and April 3, 1972, counsel for appellant was 
expressly assured by Justice Department attorneys that 
the United States would oppose any exemption for the 
three counties and was preparing papers in opposition 
to the motion for summary judgment. At no time did any 
representative of the Department, though fully aware of 
appellants interest in this action, seek from appellants or 
their counsel, or indicate any interest in, information 
regarding the central issue in the instant case—whether 
New York’s literacy tests had been used in the three coun­
ties over the previous decade with the purpose or effect of 
denying or abridging the right to vote on account of race 
or color.

On April 3, 1972, the Assistant Attorney General in 
charge of the Civil Rights Division executed a 4 page affi­
davit on behalf of the Attorney General stating that the 
United States had no reason to believe that literacy tests 
had been used in New York, Kings or Bronx counties in 
the previous 10 years with the purpose or effect of denying 
or abridging the right to vote on account of race or color. 
The affidavit was filed with the District Court for the Dis­
trict of Columbia the next day, together with a one sentence 
memorandum consenting to the entry of the declaratory 
judgment sought by New York. (The Affidavit and Memo­
randum are set out in Appendix B.) On the afternoon of 
April 5, 1972, counsel for appellants was notified by tele­
phone of the Justice Department’s reversal of its earlier 
position. Appellants moved to intervene as party defen­
dants in the instant proceeding on April 7, 1972.



11

Appellants’ motion to intervene was opposed by New 
York; the United States has filed no further papers in the 
case. On April 13, 1972, the District Court denied without 
opinion appellant’s motion to intervene and entered judg­
ment in favor of plaintiff. On April 24, 1972, appellants 
moved the District Court to alter its judgment. That mo­
tion was denied without opinion on April 25, 1972.2 This 
appeal followed.3

The Question Presented is Substantial

The instant action arises from an attempt by the state of 
New York to nullify one of the most important of the 
1970 amendments to the 1965 Voting Rights Act. The 
amendment in question proposed on the Senate Floor by 
Senator Cooper, altered the formula in sections 4 and 5 
of the Act with the express purpose of extending their 
coverage to more than 2 million blacks and Puerto Ricans 
in New York, Bronx and Kings counties. The United 
States systematically declined to investigate or present to 
the court below any of the factual or legal theories which 
had prompted Congress to extend coverage to these three 
counties and which had earlier been advanced by the United 
States before congressional committees and this Court. 
The Voting Rights Act does not authorize the Attorney 
General to grant exemptions to sections 4 and 5, but re­
quired the court below to make its own independent deter­
mination that the three counties had not used literacy tests 
with the proscribed purpose or effect. In the face of the

2 The order denying this motion was signed by only 2 members 
of the three judge panel. Judge Greene, for unexplained reasons, 
did not participate.

3 By agreement of counsel no further action has been taken by 
either party in the New York action pending a final decision in 
the instant case.



12

refusal of the United States to offer to the court relevant 
evidence or arguments in this regard, the district court 
should have permitted appellants to intervene and assist 
it by presenting such material.

1. The Cooper Amendment was expressly intended to place 
three New York counties under sections 4  and 5 of the 
Voting Rights Act.

Under the 1965 Voting Rights Act as originally enacted 
the requirements of sections 4 and 5 regarding federal 
clearance of new voting laws and practices were applied to 
any state or subdivision which met two criteria: (1) on 
November 1, 1964, it had in effect a test or device as defined 
in section 4(c), 42 U.S.C. §1973b(c), such as a literacy test, 
and (2) less than 50 percent of the voting age population 
was registered on November 1,1964, or less than 50 percent 
of such persons voted in the 1964 presidential election. 
Most of the covered areas were located in the south; Ala­
bama, Louisiana, Mississippi, Georgia, South Carolina, 
Virginia, and 40 counties of North Carolina were subjected 
to the clearance procedures. In the north 6 scattered 
counties and the state of Alaska were also covered. Between 
the enactment of the 1965 Act and the 1970 amendments 
only one county in the South was able to obtain an exemp­
tion; in the north, however, Alaska and at least 4 of the 
affected counties obtained, with the concurrence of the 
Attorney General, declaratory judgments exempting them 
from sections 4 and 5. See 116 Cong. Rec. 5526, 6521, 6621, 
6654 (1970).

Sections 4 and 5 of the 1965 Act were so framed as to 
automatically expire in 1970. Extension of these provisions 
was proposed for a period of 5 years until 1975, but both the 
Administration and many members of Congress opposed 
any such extension. The principal criticism voiced by



13

these opponents and recurring throughout the history of 
the 1970 amendments was that sections 4 and 5 applied 
almost exclusively to the South, and constituted discrimina­
tory regional legislation. Renewal of the sections was 
initially rejected by the House on this ground.4 AVhen the 
measure was considered by the Senate, the same argument 
was advanced.5 Critics of sections 4 and 5 reiterated that 
discrimination was a national problem and could be found 
even in the city of New York.6 In particular it was re­
peatedly pointed out that New York, Kings and Bronx 
Counties, which did not fall under the 1965 Act, would have 
been covered by sections 4 and 5 of the Act if the formula 
contained therein had referred to registration and voting 
turnout in November 1968 instead of November 1964.7

In response to these arguments Senator Cook proposed 
that sections 4 and 5 be altered so as to cover states and 
subdivisions which had the specified tests or devices and 
low registration or presidential vote in either 1964 or 1968. 
Senator Cooper explained his amendment in the following 
terms:

The pending amendment would bring under coverage 
of the Voting Rights Act of 1965, and under the trig­
gering device described in section 4(b), those States or 
political subdivisions which the Attorney General may 
determine as of November 1, 1968, employed a test or

4113 Cong. Rec. 38485-38537 (1969).
5 See generally 114 Cong. Ree. 5516— 6661 (1970).
6114 Cong. Rec. 5534 (Remarks of Senator Hansen), 5670 (Re­

marks of Senator Byrd), 5687-8 (Remarks of Senator Long), 6158 
(Remarks of Senator Gurney), 6161-63 (Remarks of Senator El- 
lender) (1970), 6621-22 (Remarks of Senator Long).

7114 Cong. Rec. 5546 (Remarks of Senator Ervin), 6151-52 
(Remarks of Senator Ellender), 6623-25 (Remarks of Senator 
Allen) (1970).



14

device and where less than 50 percent of persons of 
voting age were registered or less than 50 percent of 
such persons voted in the presidential election of 1968.

*  *  *

One of its purposes is to establish the principle that 
the Voting Rights Act of 1965 and, in particular, its 
formula, section 4(b), which is called the trigger, is ap­
plicable to all States and political subdivisions and is 
not restricted to the Southern States.

*  #  #

The amendment also establishes the principle which 
has been approved in our debate—that legislation to 
secure the voting rights must apply to all the people of 
this country, and to all the States. It is not restricted 
to a fixed date in the past, whether 1964 or 1968. It is 
a continuing effort to secure and assure voting rights 
to all the people of our country.

#  #  *

The chief State involved is the State of . . . New 
York. Three counties of New York were involved, 
Bronx, Kings, and New York. In the 1964 election more 
than 50 percent of the voters were registered and more 
than 50 percent voted. However, for some reason in the 
1968 election 50 percent were not registered or voting. 
114 Cong. Rec. 6654, 6659 (1970).

Although opposed by the Senators from New York, the 
Cooper amendment was passed with the support of Senators 
from all regions of the country. 114 Cong. Rec. 6661. When 
the Senate bill was brought up for consideration, both the 
Chairman of the Judiciary Committee and the Majority 
Leader noted that the new version applied to New York, 
Kings and Bronx Counties, the latter noting that this



15

change demonstrated that the Act was not “aimed at any 
one section.” 8 The House, which had earlier rejected re­
newal of sections 4 and 5, acquiesced in their reenactment 
as thus modified.9

The Senate debates leading to the passage of the Cooper 
amendment reveal a variety of concerns as to the manner in 
which New York’s literacy test had had a discriminatory 
purpose or effect in the three counties involved. (1) Senator 
Cooper, referring to this Court’s decision in Katzenbach v. 
Morgan, 384 U.S. 641, 654 n.14 (1966), urged that New 
York’s 1922 literacy requirement was enacted, with the 
purpose of discriminating on the basis of race.10 (2) Sena­
tor Griffin argued that if New York denied the vote to il­
literate black applicants who had received an inferior educa­
tion in a segregated southern school system, the literacy 
test would have the effect of discrimination on the basis of 
race in a manner which this Court had earlier held to con­
stitute the type of discrimination which precludes an ex­
emption from sections 4 and 5.11 (3) Senator Hruska, quot­
ing testimony by the Attorney General, suggested it would 
also discriminate on the basis of race to deny the franchise 
to illiterates who had received an inferior education in the 
north, without regard to whether a de jure dual school sys­
tem might be involved.12 (4) Again quoting the Attorney 
General, Senator Hruska suggested that the mere use of

8 114 Cong. Rec. 20161 (Remarks of Rep. Celler), 20165 (Re­
marks of Rep. Albert) (1970).

0114 Cong. Ree. 20199 (1970).

10114 Cong. Ree. 6660 (1970); see also 114 Cong. Rec. 6659 
(Remarks of Senator Murphy).

11114 Cong. Ree. 6661; see also 114 Cong. Rec. 5533 (Remarks 
of Senator Hruska), 6158-9 (Remarks of Senators Dole and Mit­
chell) (1970); Gaston County v. United States, 395 U.S. 285 
(1969).

12114 Cong. Rec. 5533 (1970).



16

literacy tests had a psychological effect which tended to 
deter blacks who might seek to register and thus have a 
racially discriminatory effect.13 (5) Several Senators sug­
gested that literacy tests were discriminatory in effect 
merely because the rate of illiteracy was higher among 
blacks or other minorities than among whites.14 15

The Cooper amendment expanded substantially the num­
ber of persons protected by sections 4 and 5. The three New 
York counties concerned have a total black population of 
1.4 million and another 800,000 Puerto Ricans.16 The com­
bined minority population of these counties is almost double 
that of the largest southern state covered by the A ct; Kings 
County alone has nearly as many black residents as do the 
states of Virginia and South Carolina. All the exemptions 
granted by the federal courts prior to the instant case af­
fected a total of no more than 100,000 minority group mem­
bers. By granting an exemption to New York, Kings and 
Bronx counties, the court below not only nullified the 
Cooper amendment, but withdrew the protection of sections 
4 and 5 from an area of unprecedented size.

2. The United States improperly declined to oppose exempt­
ing the three New York counties from sections 4  and 5.

The affidavit submitted by the United States below, and 
set out in Appendix B, acquiescing to the exemption for 
the three counties reveals an incomprehensible failure by 
the Justice Department to pursue the legal and factual 
concerns which led to the passage of the Cooper amend­
ment. The investigation conducted by the Department “ con­

13114 Cong. Rec. 5533; see also 114 Cong. Rec. 6152 (Remarks 
of Senator Eastland) (1970).

14114 Cong. Rec. 5532-3 (Remarks of Senator Hruska), 6152 
(Remarks of Senator Eastland), 6156 (Remarks of Senator Gur­
ney) (1970).

15 Unpublished figures supplied by the Bureau of the Census.



17

sisted of examination of registration records in selected 
precincts in each covered county, interviews of certain elec­
tion and registration officials and interviews of persons 
familiar with registration activity in black and Puerto 
Rican neighborhoods in those counties.” (Appendix, p. 
8a) So far as appears from the government’s papers, its 
investigators may never have interviewed any person not 
interested in obtaining the exemption or even any black or 
Puerto Rican. None of the appellants or their counsel, all 
of them known to be vitally interested in this case, were 
ever interviewed or even informed by the Justice Depart­
ment that any investigation was underway. An examina­
tion of the registration records was well calculated to re­
veal nothing other than clumsily concealed discrimination 
in the application of the literacy tests, and the legislative 
history of the Cooper amendment reveals that that was one 
of the few types of discrimination Congress did not con­
sider. The results of this investigation were predictably 
barren. Beside detailing the extent to which election offi­
cials had failed at first to comply with the 1965 federal ban 
on English language literacy tests to deny the vote to 
Puerto Ricans with at least a sixth grade education, and 
with the 1970 federal prohibition against all literacy tests, 
the affidavit lamely recites that the interviews with election 
officials and other unnamed knowledgeable persons “ re­
vealed no allegation by black citizens that the previously 
enforced literacy test was used to deny or abridge their 
right to register and vote by reason of race or color.” 
(Appendix, p. 9a)

The most striking aspect of the government’s affidavit 
and one page affidavit are the omissions. No inquiry was 
made as to whether New York’s literacy tests were dis­
criminatory because blacks or Puerto Ricans in the three 
counties had a higher rate of illiteracy than whites due to 
unequal educational opportunities in the three counties, an



18

approach which the United States had pressed with vigor 
three years before in Gaston County v. United States, 395 
U.S. 285 (1969), and which the Attorney General had 
urged before Congress.16 No inquiry was made as to 
whether the tests discriminated against blacks who had 
received an inferior segregated education in the south and 
then moved to New York, a species of discrimination which 
the Attorney General had condemned two years earlier in 
congressional testimony noted on the floor of the Senate.17 
No inquiry was made as to whether New York’s literacy 
test had been enacted with the express purpose of disen­
franchising minority groups, a matter which the United 
States itself had earlier brought to the attention of this 
Court in Katzenbach v. Morgan, 384 U.S. 641, 654 (1966). 
No inquiry was made into the psychological barrier to 
black registration inherent in literacy tests which the At­
torney General had noted two years earlier.18 And no 
inquiry of any kind was made of appellants in the instant 
case, all of whom the United States knew to be vitally 
interested in the pending request for an exemption from 
sections 4 and 5. This lack of inquiry is particularly sur­
prising in view of the concern openly expressed in the 
Senate during the 1970 debates that the Attorney General 
had or would abuse his discretion by opposing exemptions 
for southern states while readily acquiescing to any simi­
lar requests from the north.19

Under section 4 of the Voting Eights Act the Attorney 
General is not vested with the authority to grant exemp­
tions from the federal clearance procedures. Unlike sec- 16 17 18 19

16 See 114 Cong. Rec. 5533 (1970).
17 See 114 Cong. Rec. 6158-59 (Remarks of Senator Dole) (1970).
18 See 114 Cong. Rec. 5533 (1970).
19114 Cong. Rec. 6166 (Remarks of Rep. Poff), 6521 (Remarks 

of Senator Ervin), 6621 (Remarks of Senator Ervin).



19

tion 5, which confers upon the Attorney General discretion 
to object or assent to changes in voting laws, section 4 
provides that exemptions may be given only by a three 
judge federal court, and then only after that court has 
made a determination of fact that the jurisdiction involved 
has not used any tests or devices during the previous 10 
years for the purpose or with the effect of denying or 
abridging the right to vote on account of race or color. 
This difference between sections 4 and 5 dictates that the 
Attorney General’s consent cannot control the decision or 
alter the responsibility of the district court. Even in the 
face of the government’s acquiescence in the requested 
exemption in the instant case, the court below had an 
unequivocal duty to make an informed and independent 
judgment concerning the legal and factual issues raised 
by that request. Particularly in a case such as this, involv­
ing as it does matters of great public import, the district 
court does not function as a mere umpire or moderator 
bound to accept any arrangement proposed by the named 
parties, but sits to see that justice is done not only to 
those parties but to all who may be affected by its decision. 
Compare United States v. Rosenberg, 195 F.2d 583 (2d 
Cir., 1952), certiorari denied, 344 U.S. 838. Under certain 
circumstances it may be proper, for example, for the dis­
trict court to call and examine its own witnesses when the 
parties decline to do so. McCormick on Evidence, 12-14. 
Certainly in a case such as this, where New York seeks to 
withdraw the protection of sections 4 and 5 from more 
than 2 million blacks and Puerto Ricans, and the United 
States declines either to present the court with relevant 
evidence or to advance any related legal considerations, 
the responsibilities imposed upon the district court by 
section 4 dictate that it accept the assistance of responsi­
ble intervenors.



20

3. The District Court clearly erred in granting the exemption 
and denying appellants leave to intervene.

Rule 24(a) of the Federal Rules of Civil Procedure pro­
vides that intervention shall be permitted as of right “when 
the applicant claims an interest relating to the property 
or transaction which is the subject of the action and he is 
so situated that the disposition of the action may as a 
practical matter impair or impede his ability to protect 
that interest, unless the applicant’s interest is adequately 
represented by the parties.” This language is the result 
of the 1966 amendments intended to liberalize intervention 
and to make it available to any party whose interests might 
be substantially affected by the disposition of the ac­
tion. See Committee Note, 3B Moore’s Federal Practice 
If 24.01 [10]. The advisory committee expressly departed 
from the pre-1966 requirement that the applicant for in­
tervention show that he would be legally bound by the 
judgment as res judicata. Compare Sam Fox Publishing 
Co. v. United States, 366 U.S. 683 (1961). Apache County 
v. United States, 256 F. Supp. 903 (D.Ct. D.C., 1966). A 
liberal attitude toward private action to vindicate the pub­
lic interest is generally desirable in litigation arising out 
of civil rights legislation. Compare Allen v. Board of Elec­
tions, 393 U.S. 544 (1969).

The requirements of Rule 24(a) are clearly met in the 
instant case. Appellants have brought suit in the United 
States District Court for the Southern District of New 
York to compel the three counties to comply with sections 
4 and 5 and submit their redistricting laws for federal 
approval. National Association for the Advancement of 
Colored People v. Neiv Yorh City Board of Elections, 72 
Civ. 1460. Unless the three counties receive an exemption 
from sections 4 and 5, appellants will almost certainly 
succeed in obtaining the injunctive relief sought in the



21

New York action. If, however, the counties obtain such an 
exemption in the instant action, appellants will of course 
be unable to compel the counties to submit their redistrict­
ing plans to the Attorney General. Appellants also seek 
to intervene on behalf of themselves, the members of appel­
lant New York N.A.A.C.P., and all other minorities who 
will be denied the protections of sections 4 and 5 if the 
three counties are exempted from coverage. This Court 
has already held, at the urging of the United States, that 
“ [i]t is consistent with the broad purpose of the [Voting 
Eights] Act to allow the individual citizen standing to 
insure that his city or county government complies with 
the §5 approval requirements.” Allen v. Board of Elec­
tions, 393 U.S. 544, 557 (1969). That policy and appellants’ 
interest are the same whether appellants seek to assure 
such compliance by suing the New York or intervening in 
the District of Columbia, and apply a fortiori in an inter­
vention such as this one where appellants seek to compel 
compliance with sections 4 and 5 with regard to all changes 
in voting laws or practices which may occur in the future. 
Both because they will be bound in the New York litigation 
by an exemption in the instant case, and because of the 
impact on them and of those whom they represent of a 
withdrawal of the protections of sections 4 and 5, appel­
lants have a substantial interest in the disposition of the 
instant litigation and are entitled as of right to intervene. 
Compare Cascade National Gas Corporation v. El Paso 
Natural Gas Company, 386 U.S. 129 (1967). The instant 
application for intervention also falls within the authority 
of the court to grant permissive intervention deemed help­
ful to the court. Apache County v. United States, 256 
F.Supp. 903,908 (D.Ct. D.C. 1966).

That the United States does not adequately represent 
appellants’ interests can hardly be disputed. The burden



22

of showing adequacy of representation is on the party 
opposing intervention. Nuesse v. Camp, 385 F.2d 694 (D.C. 
Cir. 1967). The claim of inadequacy in the instant case 
is not based on a mere tactical disagreement as to how 
this litigation should be conducted, but upon the express 
refusal of the United States to present to the district 
court any factual evidence or legal argument in opposition 
to the requested exemption. Compare Stadin v. Union 
Elec. Co., 309 F.2d 912, 919 (8tli Cir., 1962), certiorari 
denied, 373 U.S. 915; Pellegrino v. Nesbit, 203 F.2d 463 
(9th Cir., 1953). The complete failure of representation 
revealed in the instant case far exceeds the showing of 
inadequacy found sufficient by this Court in Cascade Natur- 
ral Gas Corporation v. El Paso Natural Gas Company, 
386 U.S. 129 (1967).

Nor can the timeliness of appellants’ application for 
intervention be doubted. The motion for intervention was 
filed 2 days after appellants were informed that the United 
States had decided not to oppose the requested exemption. 
Prior to that time the government had consistently indi­
cated that it would oppose the exemption; until the United 
States suddenly reversed its earlier position there was no 
reason to question the adequacy of its representation and 
any motion to intervene would have been premature. Com­
pare S.E.C. v. Bloomberg, 299 F.2d 315, 320 (1st Cir., 
1962). The motion was made prior to the commencement 
of any trial, the argument of any motion or the issuance 
of any orders by the district court. Compare 3B Moore’s 
Federal Practice, H 24.13 [1]. The circumstances in the 
instant case are similar to those in Pyle-National Co. v. 
Amos, 173 F.2d 425 (7th Cir., 1949). In Pyle-National, 
an action by a corporation against its former officers for 
an accounting for certain sums, a stockholder sought to 
intervene as a party defendant six months after the litiga­



23

tion had commenced and a matter of weeks before the 
scheduled commencement of the trial. The stockholder only 
moved to intervene when he learned that the corporation 
was about to consent to judgment for much less than the 
full amount allegedly misappropriated by the defendants. 
The Court of Appeals held the application for intervention 
timely. 172 F.2d at 428.

Appellants’ motion for intervention and supporting 
papers sought to present the theories of discrimination in 
the use of New York’s literacy test which had been urged 
by the Attorney General and accepted by Congress in en­
acting the Cooper amendment. Appellants asked an oppor­
tunity to show that the literacy test had had the effect or 
purpose of discriminating on the basis of race because, 
inter alia, the rate of illiteracy was higher among non­
whites than among whites, the counties had for many 
years provided blacks and Puerto Ricans with an educa­
tion inferior to that provided whites, that many of the 
black adults had emigrated to New York from southern 
states where they had attended inferior segregated schools, 
and the literacy tests were administered in such a way and 
with the effect of deterring minority group members from 
attempting to take them. To demonstrate the substantiality 
of these claims of discrimination, appellants furnished the 
district court with copies of six official and semi-official 
reports from 1915 to 1970 documenting the extent of dis­
crimination against minority children in New York City 
schools,20 developed extensive statistics from available

20 Metropolitan Applied Research Center, Selection From 
Stanines Study of 1969-70 (1972) ; United Bronx Parents, Dis­
tribution of Educational Resources Among the Bronx Public 
Schools (1968); Public Education Association, The Status of the 
Public School Education of Negro and Puerto Rican Children in 
New York City (1955) (A  report prepared for the New York City 
Board of Education) ; Report of the Mayor’s Commission on Con­
ditions in Harlem, chapter 5, “ The Problem of Education and



24

census and other data showing the resulting differences 
in illiteracy rates,21 and referred the court to judicial deci­
sions condemning racial discrimination in both the New

Recreation” (1935); Blaseoer, Colored School Children in New 
York (1915); Bulletin of the New York Public Library, “ Ethiopia 
Unshackled: A  brief history of the education of Negro Children 
in New York City” (1965). The Public Education Association Re­
port, for example, compared facilities in schools with less than 10% 
blacks and Puerto Ricans (denoted Y  schools) with those in schools 
less than 10 or 15% white students (denoted X  schools). The Re­
port found that the average Group X  elementary school was 43 
years old, while the average group Y  elementary school was 31 
years old. The average Group X  junior high school was 35 years 
old; the average Group Y  junior high school was 15 years old. 
Group X  schools were generally equipped with fewer special rooms 
than Group Y  schools, and principals in Group X  schools were 
generally less satisfied with their facilities and equipment than 
those in Group Y schools. An average of 17.2 years had gone by 
since the last renovation of the Group X  elementary schools and 
4.3 years for the group X  junior high schools; renovation had 
occurred on the average only 9.8 years before in the Group Y 
elementary schools and 0.7 years earlier in the Group Y  junior 
high schools, even though the Group Y  schools were newer to begin 
with. Twice as many Group X  elementary teachers were on proba­
tion as in Group Y, 50% more Group Y  elementary teachers had 
tenure than Group X , and more than twice as many Group X  
elementary school teachers were under-trained permanent substi­
tutes. The Board of Education was spending an average of $8.30 
per student for maintenance in Group Y  elementary schools, but 
only $5.30 per student in Group X  elementary schools. Expen­
ditures for operation of school plant were $27.50 per child at 
Group Y  elementary schools and $19.20 per child in Group X  
elementary schools. The expenditure per student for instruction 
was $195 in the Group Y  elementary schools and $185 in the Group 
X  elementary schools. The average class size in ordinary Group X  
elementary schools was 35.1, compared to 31.1 in the comparable 
Group Y  schools. The Report also concluded that it had not been 
the policy of the Board of Education in drawing school district 
lines to seek to ameliorate the racial isolation caused by housing 
patterns.

21 Those statistics revealed the following. Between 1910 and 
1960, when most persons of voting age before 1972 received their 
education, the proportion of non-white children between 7 and 13 
not enrolled in school exceeded the white rate by an average of 
30%, and was higher in 1960 than ever before. In 1950 the propor-



25

York City school systems and in school systems in the 
south from which black residents of the 3 counties had 
emigrated.* 22

Notwithstanding the plainly adequate allegations and 
substantial evidence of discriminatory use and purpose of 
New York’s literacy test, the district court ruled for the 
plaintiffs without ever reaching the merits of the issues

tion of children ages 7 to 13 more than one grade behind in school 
was approximately 75% higher among non-white children than 
among white children, and the amount by which the non-white 
rate exceeded the white rate actually rose the longer the children 
had been enrolled in school. A  more recent study showed that 
white students in white elementary schools were a year and a half 
to two years ahead of black and Puerto Rican students in non­
white New York schools, and the gap in reading ability widened, 
the longer the students were enrolled in school. The tendency of 
non-white children in non-white schools to fall further and further 
behind white children in white schools in New York City was noted 
in Council of Supervisory Association of the Public Schools of 
New York City v. Board of Education of the City of New York, 
23 N.Y.2d 458, 463, 297 N.Y.S.2d 547, 551, 245 N.E.2d 204, 207 
(1969) modified on appeal, 24 N.Y.2d 1029, 302 N.Y.S.2d 850, 
250 N.E.2d 251. In 1960, while literacy tests were employed in 
all three counties, the rate of illiteracy among non-whites was
230% higher than among native whites in New York County,
270% higher than among native whites in Kings County, and
310% higher than among native whites in Bronx County. In
Gaston County v. United States the rate of illiteracy among blacks 
was only 70% higher than among whites. 288 F.Supp. 678, 687 
(D.C. Cir., 1968).

22 Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.N.Y., 
1971) (Examinations used by 80 year old Board of Examiners of 
the City of New York discriminated against non-white applicants 
for employment in the public school system); In Re Skipwith, 180 
N.Y.S.2d 852, 14 Misc. 2d 325 (1958) ; Gaston County v. United 
States, 395 U.S. 285 (1969). The court in Skipwith found inter 
alia, (a) that the New York public schools were segregated on 
the basis of race, (b) that this segregation, whether or not purpose­
ful, had a harmful effect on the education of the non-white children, 
(c) that the use of less qualified substitute teachers was almost 
twice as frequent in non-white schools as in white schools in the 
three counties, (d) that there was a higher proportion of inex­
perienced teachers in the non-white schools.



26

raised. The motion of appellants which was accompanied 
by the extensive documentation and statistics noted above 
was denied by the court the day after it was filed. In as 
much as the court below issued no opinions in connec­
tion with this case, it is impossible to determine why 
appellants’ motion to intervene was denied. The final 
judgment appealed from merely recites that plaintiff’s 
motion for summary judgment is granted. There was no 
express determination by the district court regarding the 
discriminatory purpose or effect of New York’s literacy 
test; it is unclear whether the members of the court ever 
made such a determination, or instead felt authorized or 
compelled by the government’s position to simply grant 
the motion for summary judgment. Although section 5 
requires the district court to retain jurisdiction in this 
action for a period of five years after judgment, the United 
States did not ask the court to retain jurisdiction and that 
court did not do so. The proceedings in the district court 
were, in sum, entirely devoid of the caution and scrutiny 
which Congress can be assumed to have contemplated 
would be exercised before the protections of sections 4 
and 5 were withdrawn from over 2 million blacks and 
Puerto Ricans.23

The mere fact that appellants seek to intervene on the 
side of the United States does not preclude granting that 
request. This Court has already held that private parties 
may seek to step forward and seek to vindicate the public 
interest when dissatisfied with the government’s handling 
of a case in which they have a substantial interest. Cascade

23 Since the district court never actually entered a declaratory 
judgment determining that no test or device as defined in the Act 
had been used during the previous 10 years for the purpose or 
with the effect of denying or abridging the right to vote on account 
of race or color, the purported exemption does not meet even 
the literal requirements of the statute.



27

Natural Gas Corporation v. FA Paso Natural Gas Company, 
386 U.S. 129 (1967). The instant case does not involve 
any settlement negotiated by the United States to which 
a private party seeks to object and the United States did 
not oppose the motion for intervention. Appellants do 
not seek to substitute their judgment for that of the United 
States on some matter of public policy. Compare Cascade 
Natural Gas, 386 U.S. at 141-161 (dissent of Justice Stew­
art). Nor do appellants seek to introduce before the district 
court factual material presented earlier and without suc­
cess to the United States. Compare Apache County v. 
United States, 256 F.Supp. 903 (D.Ct. D.C., 1966). The 
legal theories which appellants ask to present as to what 
constitutes discriminatory purpose or effect are the very 
theories urged by the United States before this Court in 
Katzenbach v. Morgan and Gaston County v. United States, 
advanced by the Attorney General at congressional hear­
ings on the instant statute, and accepted by the Congress 
which voted the Cooper amendment into law. The evidence 
which appellants seek to introduce is the evidence plainly 
relevant under those accepted interpretations of section 4 
which the United States neither sought on its own nor 
asked or permitted appellants to bring to its attention. 
Under these circumstances the decision of the district court 
denying appellants’ motion to intervene was not only erro­
neous under Rule 24 but inconsistent with the policies of 
the Voting Rights Act.



28

CONCLUSION

For the foregoing reasons probable jurisdiction should 
be noted, and the judgment below should be reversed.

Respectfully submitted,

Jack Greenberg 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

W iley B ranton
500 McLachlen Bank Building 
666 Eleventh St., N.W. 
Washington, D.C. 20001

Counsel for Appellants



APPENDICES



la

APPENDIX A

UNITED STATES DISTRICT COURT 

F oe the D istrict of Columbia 

Civil Action No. 2419-71

Order o f the District Court

N ew Y ork S tate, on behalf of New York, Bronx 
and Kings Counties,

Plaintiff,
vs.

U nited States of A merica,
Defendant,

N .A .A.C .P ., N ew Y ork City Region of New Y ork State 
Conference of B ranches, et al.,

Applicants for Intervention.

This matter came before the Court on Motion by plain­
tiff, New York State, for Summary Judgment, a response 
by defendant, United States of America, consenting to the 
entry of such judgment, and a Motion to Intervene as party 
defendants by the N.A.A.C.P., New York City Region of 
New York State Conference of Branches, et al.

Upon consideration of these Motions, the memoranda of 
law submitted in support thereof, and opposition thereto, 
it is by the Court, this 12th day of April 1972,

Ordered that said Motion to Intervene as party defen­
dants by N.A.A.C.P., New York City Region of New York



2a

Order of the District Court

State Conference of Branches, et al. should be and the 
same hereby is denied, and it is

F urther Ordered that the Motion for Summary Judg­
ment by plaintiff, New York State, should be and the same 
hereby is granted.

/ s /  E dward A llen T amm 
/ s /  W illiam B. Jones 
/ s /  June Green

F iled

A pril 13, 1972 

James F. Davey, Clerk



3a

UNITED STATES DISTRICT COURT 

P oe the D istrict op Columbia 

Civil Action No. 2419-71

Judgment o f the District Court

New  Y ork State, on behalf of New York, Bronx 
and Kings Counties,

Plaintiff,
vs.

U nited States op A merica,
Defendant,

N.A.A.C.P., New Y ork City Region of New Y ork State 
Conference of B ranches, et al.,

Applicants for Intervention.

Before T am m , Circuit Judge, Jones and Green, District 
Judges.*

Order

The Motion of N.A.A.C.P., New York City Region of 
New York State Conference of Branches, et al., to Alter 
the Judgment of the Court in this action, entered April 12, 
1972, denying their Motion to Intervene as party defen­
dants and granting plaintiff New York State’s Motion for 
Summary Judgment, having come before the Court at this 
time; and having considered the memoranda, affidavits

*  G r e e n , District Judge, did not participate in this decision.



4a

Judgment of the District Court

and exhibits submitted in support of the Motion to Alter 
Judgment, the Court enters the following Order pursuant 
to Local Rule 9 (f), as amended January 1, 1972. 

Wherefore, it is this 25th day of April, 1972.

Ordered: That the Motion of N.A.A.C.P., et al., to Alter 
the Judgment of the Court in this action be and the same 
is hereby denied.

/ s /  E dward A llen T amm 
Circuit Judge 

/ s /  W illiam B. Jones 
District Judge



5a

Notice of Appeal

UNITED STATES DISTRICT COURT 

D istrict of Columbia 

Civil Action No. 2419-71

New  Y ork S tate, on behalf of New York, Bronx, 
and Kings Counties,

Plaintiff,
—against—

U nited S tates o f  A merica,
Defendant,

N.A.A.C.P., etc., et al.,

Applicants for Intervention.

N otice of A ppeal

To the Supreme Court of the U nited States

Notice is hereby given that the N.A.A.C.P., New York 
City Region of New York State Conference of Branches, 
Antonia Vega, Simon Levine, Samuel Wright, Waldaba 
Stewart and Thomas R. Fortune, applicants for interven­
tion in the above mentioned action, hereby appeal to the 
Supreme Court of the United States from the final order 
entered in this action on April 13, 1972, denying applicants’ 
application for intervention and granting a declaratory 
judgment in favor of the plaintiff and the final order 
entered in this action on April 25, 1972, denying applicants’ 
motion to alter judgment.

This appeal is taken pursuant to 42 U.S.C. §1973b(a).



6a

Notice of Appeal

Jack Greenberg 
Jeffry A. M intz 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
Telephone: 212-586-8397

W iley B ranton

500 McLachlen Bank Building 
666 Eleventh St., N.W. 
Washington, D.C. 20001 
Telephone: 202-737-5432 

Counsel for Appellants



7a

APPENDIX B

In the U nited States D isteict Court 
F ob the D istrict of Columbia

Civil A ction No. 2419-71

Memorandum o f the United States

New Y ork State on behalf of New  Y ork, B ronx and 
K ings Counties, political subdivisions of said State,

Plaintiff,
v.

U nited States of A merica,
Defendant.

Defendant’s M emorandum ano A ffidavit in Response to 
Plaintiff’s M otion for S ummary Judgment

Based on the facts set forth in the affidavits attached to 
plaintiff’s Motion for Summary Judgment and the rea­
sons set forth in the attached affidavit of David L. Norman, 
Assistant Attorney General, the United States hereby con­
sents to the entry of a declaratory judgment under Section 
4(a) of the Voting Rights Act of 1965 (42 U.S.C. 1973 b (a )).

David L. N orman 
Assistant Attorney General 
Civil Rights Division



8a

D istrict of Columbia,
City of W ashington,

David L. N orman, having been duly sworn, states as 
follows:

My name is David L. Norman. I am Assistant Attorney 
General, Civil Eights Division, Department of Justice. 
I make this affidavit in response to the plaintiff’s Motion 
for Summary Judgment in the case of New York State v. 
United States of America, Civil Action No. 2419-71, United 
States District Court for the District of Columbia. I am 
familiar with the Complaint filed by the plaintiff and with 
the Answer filed by the United States herein.

Following the filing of the Complaint, the United States, 
pursuant to the requirements of Section 4(a) of the Voting 
Eights Act of 1965, as amended (42 U.S.C. 1973b(a.)), 
undertook to determine if the Attorney General could con­
clude that he has no reason to believe that the New York 
State literacy test has been used in the counties of New 
York, Bronx and Kings during the preceding 10 years for 
the purpose or with the effect of denying or abridging the 
right to vote on account of race or color, and thereby con­
sent to the judgment prayed for. At my direction, attor­
neys from the Department of Justice conducted an investi­
gation which consisted of examination of registration rec­
ords in selected precincts in each covered county, interviews 
of certain election and registration officials and interviews 
of persons familiar with registration activity in black and 
Puerto Eican neighborhoods in those counties.

I have reviewed and evaluated the data obtained through 
this investigation in light of the statutory guidelines set 
forth in Section 4(a) and (d) of the Voting Eights Act of

Affidavit o f  the Assistant Attorney General



9a

1964 (42 U.S.C. 1973b (a) and (d)). In my judgment the 
following facts are relevant to the issue of whether the 
New York literacy test “has been used during the ten 
years preceding the filing of [this] action for the purpose 
or with the effect of denying or abridging the right to vote 
on account of race or color” and to the question of whether 
the Attorney General should determine “ that he has no 
reason to believe” that the New York literacy test has been 
used with the proscribed purpose or effect:

1. New York presently has suspended all requirements 
of literacy as a condition of registration and voting as re­
quired by the 1970 Amendments to the Voting Rights Act. 
Our investigation revealed no allegation by black citizens 
that the previously enforced literacy test was used to 
deny or abridge their right to register and vote by reason 
of race or color.

2. Section 4(e) of the Voting Rights Act of 1965 modified 
the New York English language literacy requirements by 
providing that the literacy requirement could be satisfied 
by proof of attendance through the sixth grade at any 
American-flag school, including those in Puerto Rico. This 
Act was passed on August 6, 1965 and was finally upheld 
by the United States Supreme Court (Katsenbach v. Mor­
gan, 384 U.S. 641) on June 16, 1966. Our investigation 
indicated that the implementation of this provision through 
the use of Spanish language affidavits was not completed 
until the fall of 1967.

The supplemental affidavit of Alexander Bassett dated 
March 30, 1972, indicates that New York authorities took 
significant interim steps to minimize any adverse impact 
resulting from the delay in making available Spanish

A ffid a v it  o f  th e A s s is t a n t  A t t o r n e y  G en era l



10a

language affidavits. Our investigation did not reveal any 
individual citizens whose inability to register is attributable 
to the absence of Spanish language affidavits.

3. The 1970 Amendments to the Voting Rights Act 
suspended in all jurisdictions any use of literacy tests or 
devices. These Amendments were effective on June 22, 
1970, and were upheld by the United States Supreme Court 
(Oregon v. Mitchell, 400 U.S. 112), in December 1970. Our 
investigation included a sampling of registration records 
in 21 election districts in the three covered counties. While 
there is no evidence that the state continued to require a 
foi-mal literacy test after the Act (except in isolated cases), 
in each election district examined, a significant percentage 
of those registration applications examined after June 
1970 bear a notation that some proof of literacy was 
recorded.

The supplemental affidavit of Alexander Bassett indi­
cates that New York authorities took reasonable steps to 
notify all registration workers of the suspension of all 
literacy requirements and that notations of proof of literacy 
resulted from either (a) obtaining such proof contingently 
in the event the courts ruled in New York’s favor in the 
challenge of the literacy suspension or (b) isolated in­
stances where individual registration officials continued to 
obtain literacy contrary to official instructions.

Based on the above findings I conclude, on behalf of the 
Acting Attorney General that there is no reason to believe 
that a literacy test has been used in the past 10 years in 
the counties of New York, Kings and Bronx with the 
purpose or effect of denying or abridging the right to vote 
on account of race or color, except for isolated instances

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11a

Affidavit of the Assistant Attorney General

which have been substantially corrected and which, under 
present practice cannot reoccur.

David L. N okman 
Assistant Attorney General 
Civil Eights Division

Sworn to and subscribed 
before me this 3rd day 
of April 1972

Notary Public 
My commission expires



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