New York v. United States Jurisdictional Statement

    In t h e

i>uprpmp (Enurt of tip IttttPii States

October Term, 1973 No

N ew  Y ork State, on behalf of New York, Bronx and Kings 
Counties, political subdivisions of said State,

Plaintiff-Appellant,
against

U nited States of A merica,

Defendant-Appellee,

N ational A ssociation for the A dvancement of 
Colored People, et al.,

Intern enors-Appellees.

JURISDICTIONAL STATEMENT

Louis J. L efkowitz 
Attorney General of the 

State of New York 
Attorney for Plaintiff-Appellant 

Office & P.O. Address 
Two World Trade Center 

New York, N.Y. 10047

Samuel A. H irshowitz 
First Assistant Attorney General

George D. Z uckerman 
Assistant Attorney General 

Of Counsel



TABLE OF CONTENTS

PAGE

Opinion B elow ......................................................................  1

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

Questions Presented ........................................................... 3

Statute Involved..................................................................  4

Statement of the C ase ......................................................... 5

The Questions Presented Are Substantial.................. 9

Conclusion ........................................................................ 14

A ppendices :

Appendix A, Notice of A p p ea l........................................  16

Appendix B, Order of District Court, Dated January
10, 1974 .........................................................................  18

Appendix C, Motion to R eopen ........................................  19

Appendix D, Transcript of Proceedings in District
Court of January 4,1974 ............................................  21

Appendix E, Memorandum Order of the District
Court of January 19, 1974 ........................................  28



11 TABLE OF CONTENTS

Citations
PAGE

Cases:
Apache Coimty v. United States, 256 F. Supp. 903

(D.D.C. 1966) ..........................................................  11
NAACP v. New York, 413 U.S. 345 ............................. 2,7, 8
Torres v. Sachs, S.D.N.Y., 73 Civ. 3921 ............... 4,8,12,13

Statutes:
Voting Rights Act of 1965, as amended, §4 (a ), 42 

U.S.C. §1973b(a) ........
§ 4(d), 42 U.S.C. § 1973b(d)
$ 4(e), 42 U.S.C. §1973b(e)
§ 5, 42 U.S.C. § 1973c..........

..................... 12

.................... 13
2,3, 5, 9,10,13,14



In t h e

Bupnm (ta rt vt thr Inttrb Stairs

October Term, 1973 No,

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

Plaintiff-Appellant,
against

U nited States oe A merica,

Defendant-Appellee,

N ational A ssociation for the A dvancement of 
Colored People, et al.,

Intervenors-Appellees.

—---------------- ♦-------------------

JURISDICTIONAL STATEMENT

Opinion Below

Appellant seeks review of an order of a three-judge Dis­
trict Court entered in the District of Columbia on Janu­
ary 10, 1974, which was unaccompanied by any opinion.



2

Jurisdiction

This action was brought by appellant in the United 
States District Court for the District of Columbia seeking 
declaratory judgment pursuant to  ̂4(a) of the Voting 
Rights Act of 1965, as amended, 42 U.S.C.  ̂1973b(a), that, 
during the ten years preceding the filing of the suit, the 
voting qualifications prescribed by the State had not been 
used by the Counties of New York, The Bronx and Kings 
“ for the purpose or with the effect of denying or abridging 
the right to vote on account of race or color,” within the 
language and meaning of §4 (a ), and that the provisions 
of §§ 4 and 5 of the Voting Rights Act were, therefore, in­
applicable in those three counties.

The order sought to be reviewed which rescinded the 
declaratory judgment previously granted to appellant in 
this proceeding and which directed appellant to comply 
with the requirements of  ̂5 of the Voting Rights Act 
of 1965, as amended, was entered on January 10, 1974. 
A  notice of appeal (appended hereto as Exhibit “ A ” ) 
was filed by appellant on January 14, 1974 in the United 
States District Court for the District of Columbia.

Jurisdiction of this Court to review on direct appeal 
the order of the three-judge District Court is conferred 
by 42 U.S.C. ■§ 1973b(a).

In NAACP v. New York, 413 U.S. 345, 353-354, this 
Court stated that “ the words ‘any appeal’ [in 42 U.S.C. 
§ 1973b(a)] are subject to broad construction; they could 
be said to include review of any meaningful judicial deter­
mination made in the progress of the  ̂4 lawsuit.”

The order of January 10, 1974 (appended hereto as Ex­
hibit “B ” ), sought to be reviewed, is certainly a “meaning­
ful judicial determination made in the progress o f the § 4 
lawsuit,”  as it rescinded the declaratory judgment pre­



3

viously granted to appellant and required that all changes 
in voting standards, practices and procedures which are 
different from that in force or effect on November 1, 1968 
in the Counties of New York, The Bronx and Kings must 
be submitted for approval by the United States Attorney 
General or by the District Court for the District of Co­
lumbia before they can take effect. Since the order of 
January 10, 1974 was issued, appellant has been required 
to submit sixty statutes, including reapportionment plans 
for the State Assembly, Senate and for congressional and 
councilmanic districts in the three affected counties, to 
the Attorney General for approval and this obligation 
under *§ 5 will remain as a continuing impediment to the 
enforcement of State and local election laws as they are 
enacted in the future. In effect, the District Court order 
of January 10, 1974 has bifurcated the State of New York 
into two areas in which fifty-nine of the State’s counties 
are subject to one set of election laws, while the Counties 
of New York, The Bronx and Kings are subject to the 
election laws and procedures that were in effect on No­
vember 1, 1968 until such time as the United States At­
torney General or the District Court for the District of 
Columbia approves such laws.

Questions Presented

1. Where the three-judge District Court previously 
granted a declaratory judgment exempting the Counties 
of New York, The Bronx and Kings from the requirements 
of § 5 of the Voting Bights Act of 1965, as amended, did 
the filing of a motion to reopen brought by appellee United 
States of America, in and of itself, require the Court below 
to rescind that declaratory judgment and to direct appel­
lant to comply with § 5, in the absence of a court hearing 
permitting appellant the opportunity to contest the basis 
and merits of the motion to reopen?



4

2. Assuming arguendo, that the Court below had con­
sidered the merits of the motion to reopen filed by the 
United States, was that motion’s sole reliance on the pre­
liminary injunction issued by Judge Stewart in the case of 
Torres v. Sachs, 73 Civ. 3921, S.D.N.Y., sufficient basis to 
authorize the Court below to rescind the declaratory judg­
ment granted to appellant in tills action?

Statute Involved

Section 4(a) of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. § 1973b(a) provides:

(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 declaratory 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 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 accordance 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 abridging 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 con­
sent to the entry of such judgment.

Statement of the Case

Appellant filed suit in the District Court for the Dis­
trict of Columbia on December 3, 1971 pursuant to §4 (a ) 
of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
§ 1973b(a), seeking a declaratory judgment that during 
the ten preceding years, the voting qualifications pre­
scribed in the laws of New York did not deny or abridge 
the right to vote of any individual on account of race or 
color, and that the provisions of §§ 4 and 5 of the Voting 
Rights Act were, therefore, inapplicable in the Counties 
of New York, Bronx and Kings in the State of New York.

The aforementioned counties had come within the pur­
view of the Voting Rights Act, because o f a determination 
made by the Bureau of Census that in 1968 less than 50% 
of the persons of voting age residing in those counties had 
voted in the Presidential Election, and since New York 
State, during the years prior to 1970, imposed a literacy 
requirement as a qualification for voting.



6

On March 10, 1972 the United States filed an answer to 
the amended complaint which did not deny the allega­
tions of said complaint except that with respect to a few 
specific allegations concerning the administration of the 
literacy test, the answer stated that defendant was with­
out knowledge or information sufficient to form a belief.

On March 17, 1972 appellant moved for summary judg­
ment and submitted affidavits in support of such motion 
by representatives of the Boards of Election in each of 
the three affected counties attesting to the manner in 
which satisfaction of literacy was established prior to 1970 
when the literacy test was suspended, and attesting to 
registration drives that were conducted during the 1960’s, 
particularly in predominantly black and Puerto Bican 
areas of New York City seeking to encourage minority 
members to register. Appellant also submitted an affi­
davit from a Board of Education official in charge of the 
conduct of literacy tests which annexed copies of all tests 
used between the years 1961 and 1969 and which attested 
to the fact that in recent years less than 5% of the ap­
plicants who had taken these tests had failed.

After a four-month investigation by attorneys from 
the Department of Justice which included an examination 
of registration records in New York, Bronx and Kings 
Counties, and interviews with election officials and per­
sons familiar with registration activity in black and 
Puerto Bican neighborhoods in those counties, the De­
partment of Justice on April 4, 1972 consented to the 
entry of the declaratory judgment. The affidavit sub­
mitted in support o f the Department of Justice’s consent 
stated that the Department of Justice investigation re­
vealed that “ there was no reason to believe that a literacy 
test has been used in the past ten 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 which have



7

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

Three days after the filing of the Department of Jus­
tice’s consent, the NAACP moved to intervene as defend­
ants in this action.

On April 13, 1972, the three-judge District Court denied 
without opinion the motion of the NAACP to intervene 
and granted appellant’s motion for summary judgment. 
The effect of that judgment was to exempt New York, 
Bronx and Kings Counties from the filing requirements 
imposed by the Voting Eights Act. The judgment of the 
District Court was subsequently affirmed by this Court on 
June 21, 1973 in a 6-2 decision. NAACP v. New York, 
413 U.S. 345.

The opinion by Mr. Justice Blackmun for the Court 
concluded “ that the District Court’s denial of the appel­
lants’ motion to intervene was proper because of the mo­
tion’s untimeliness, and that the denial was not an abuse 
of the court’s discretion.” The Court went on to observe:

“ It is also apparent that there were no unusual 
circumstances warranting intervention since (a) no 
appellant alleged an injury, personal to him, resulting 
from the discriminatory use of a literacy test, (b) ap­
pellants’ claim of inadequate representation by the 
United States was unsubstantiated, (c) appellants 
would not be foreclosed from challenging congressional 
and state legislative redistricting plans on the grounds 
that they were the produce of improper racial gerry­
mandering, cf. Gomillion v. Lightfoot, 364 U.S. 339 
(1960), and Wright v. Rockefeller, 376 U.S. 52 (1964), 
(d) appellants were free to renew their motion to in­
tervene following the entry of summary judgment 
since the District Court was required, under $4(a) 
of the Act, 42 U.S.C. §1973b(a), to retain jurisdic­
tion for five years after judgment, and, (e) in any



8

event, no citizen of New York could be denied the 
right to vote in the near future since all literacy tests 
have been suspended until August 6, 1975. 42 U.S.C. 
§ 1973aa.”  413 U.S. at 368-369.

On September 28, 1973, the NAACP renewed its motion 
to intervene before the District Court. Appellee United 
States supported the motion of the NAACP to intervene 
and tiled separately a motion to reopen.

Appellee’s motion to reopen (a copy of which is ap­
pended hereto as Exhibit “ C” ) asserts as the sole basis 
for reopening the proceeding a preliminary injunction 
that was issued by Judge Stewart in the Southern District 
of New York in the case of Torres v. Sachs, 73 Civ. 3921, 
in which the Court found that the conduct of an election 
only in English would violate the rights of Spanish-speak­
ing citizens living in New York City in contravention of 
the Voting Rights Act of 1965, as amended. However, 
the motion of the United States did not explain that the 
order of Judge Stewart in the Torres case was based upon 
a stipulation agreed upon between the plaintiffs and the 
defendant New York City Board of Elections (the State 
of New York was not a party) to provide Spanish transla­
tions in the forthcoming general election in 1973. There 
was no finding made by the Court in the Torres case to the 
effect that the New York City Board of Elections had dis­
criminated by reason of race or color in the employment 
of any test or device as a prerequisite for voting.

In the absence of a court hearing, the District Court on 
November 5, 1973 granted the motion of the NAACP to 
intervene and the motion of the United States to reopen 
this action.

Without providing any of the parties to this action with 
a hearing on the merits of the claims of either defendant 
United States or intervenor NAACP, the District Court 
at a calendar call on January 4, 1974 announced that they



9

would enter an order rescinding the declaratory judgment 
that they had previously granted in this action. Such an 
order was entered by the District Court on January 10, 
1974 rescinding the judgment of the Court of April 13, 
1972, denying plaintiff’s motion for summary judgment, and 
ordering the Counties of Bronx, Kings and New York to 
comply with the requirements of  ̂5 of the Voting Rights 
Act of 1965.

It is clear from a reading of the transcript of the Dis­
trict Court conference on January 4, 1974, a copy of which 
is appended hereto as Exhibit “ D”, that the Court, speak­
ing through Judge Green, believed that the filing of the 
motion to reopen by the United States, regardless of its 
contents, required the Court to rescind the declaratory 
judgment previously granted to appellant. See transcript 
of January 4 hearing, pp. 4-8.

On January 18, 1974, the three-judge Court denied a 
motion for a stay of the Court’s order of January 10,1974. 
In denying the motion, the Court issued a memorandum 
order (appended hereto as Exhibit “ E ” ) in which the 
Court again stated its belief that the Attorney General’s 
motion to reopen left it with no recourse but to rescind the 
declaratory judgment previously granted to appellant.

An application for a stay of the District Court’s order 
addressed to the Chief Justice of this Court and by him 
referred to the entire membership was denied on Feb­
ruary 19, 1974.

The Questions Presented Are Substantial

This appeal raises a question of first impression and 
of significant importance in the interpretation of ^4(a) 
of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
 ̂1973b(a) as to whether the District Court, after having 

granted a declaratory judgment in a  ̂4(a) action to politi­



10

cal subdivisions of a state, is required to rescind that 
declaratory judgment by the action of the Attorney Gen­
eral in filing a motion to reopen without conducting a 
Court hearing on the merits of the Attorney General’s 
motion to reopen.

The Court below rescinded its declaratory judgment of 
April 13, 1972 which had relieved the Counties of New 
York, The Bronx and Kings in the State of New York 
from the filing requirements of § 5 of the Voting Bights 
Act (42 U.S.C. ■§ 1973c) by its order of January 10, 1974 
without ever providing appellant with the opportunity of 
challenging, at a Court hearing, the basis for the Attorney 
General’s motion to reopen. It is evident from the state­
ments of the District Court at a calendar call on January 
4, 1974, when it announced that it would issue an order 
rescinding the declaratory judgment, that it believed it 
was required to take such action by reason of the At­
torney General’s motion to reopen. Judge Green, speak­
ing for the Court stated:

“ We have had an opportunity to consider the fact that 
previously the only basis for the license, in effect, or 
the exemption to New York had been by agreement 
with the government. When the government withdrew 
its agreement, perhaps that should no longer be in 
effect, and that would leave, I believe, New York in 
the position of petitioning the Attorney General. 
Would it not?”
“You see, the reason that it (the declaratory judg­
ment) went through so easily was that the government 
had simply agreed with the State of New York that 
there was no controversy. When N.A.A.C.P. brought 
it to the attention of the government that there was 
indeed a controversy, the government withdrew its 
support of New York’s position. I think that, under 
the circumstances, nothing has really been proven at 
all, and we are back where the State of New York



11

really should start and proceed under the statute by 
submitting all of its plan to the Attorney General.”  
Transcript of minutes of January 4, 1974, Appendix 
Exhibit “ D” , pp. 4, 6.

It is respectfully submitted that the District Court’s 
order rescinding the declaratory judgment in this action 
based upon its belief that it was compelled to do so by the 
filing of a motion to reopen by the United States is based 
upon an erroneous interpretation of § 4(a) of the Voting 
Rights Act of 1965, as amended.

Section 4(a) of the Voting Rights Act of 1965, as 
amended, 42 U.S.C. § 1973b(a) authorizes the District Court 
to “ reopen the action upon motion of the Attorney Gen­
eral . . . ’ ’ to provide an opportunity for a hearing to 
determine whether a test or device has been used for the 
purpose or with the effect of denying or abridging the 
right to vote on account of race or color. But that statute 
does not require or authorize the District Court to vacate 
or rescind any prior judgment granted to a state or politi­
cal subdivision in the absence of a hearing upon the merits 
of the Attorney General’s claim. Any other interpre­
tation would reduce the District Court to serving as a 
ministerial agent of the Department of Justice—an inter­
pretation which was specifically rejected by the District 
Court in Apache County v. United States, 256 F. Supp. 
903 (D.D.C. 1966) where the Court stated (p. 908):

“ In a section 4 action this Court, as the Government 
properly admitted on oral argument, is not concluded 
by the actions of the Attorney General. We are being 
asked to enter a judgment declaring the existence of 
a state of facts. This is a judicial not a ministerial 
act.”

The Court in the Apache County case pointed out that a 
determination by the Attorney General that a test or device 
should be reinstated was not conclusive, but that the



12

Court was required under  ̂4(a) to render a judicial de­
termination of the ultimate facts of non-discrimination. 
Similarly, a request by the Attorney General to reopen a 
declaratory judgment action cannot be treated as a con­
clusive act requiring the rescinding of a previously granted 
declaratory judgment. A  rescinded judgment must be 
based upon a judicial determination after an opportunity 
for all parties to present pertinent facts to the Court. 
Thus far, neither party has had an opportunity to present 
pertinent facts to the Court’s attention.

The recision by the District Court of the declaratory 
judgment previously granted to the State of New York 
without a hearing on the merits was not only unauthor­
ized by the statute, but, in being based upon a single act 
referred to by the United States, was in conflict with the 
mandate of § 4(d) of the Voting Eights Act of 1965, 42 
U.S.C. § 1973b(d) which provides:

“ For purposes of this section no State or politi­
cal subdivision shall be determined to have engaged 
in the use of tests or devices for the purpose or with 
the effect of denying or abridging the right to vote on 
account of race or color if (1) incidents of such use 
have been few in number and have been promptly and 
effectively corrected by State or local action, (2) the 
continuing effect of such incidents has been eliminated, 
and (3) there is no reasonable probability of their 
recurrence in the future.”

Despite the language of § 4(d) of the Voting Rights Act, 
the motion to reopen that was filed by the United States 
(Appendix “ C” ) was based upon a single event, namely, 
the issuance of a preliminary injunction by the United 
States District Court in the Southern District of New 
York in Torres v. Sadis, 73 Civ. 3921, which directed the 
New York City Board of Elections to provide a Spanish 
translation of all propositions and amendments on the



13

ballot for the general election of 1973 and to provide Span­
ish translations of all election materials and translators 
in all election districts which fall within any census tract 
containing 5% or more Puerto Rican or other Hispanic 
persons.

The Torres case did not involve a contested trial on 
issues of fact or law. Rather, the Corporation Counsel of 
New York City, who represented the defendants, explained 
to the Court that the only reason that Spanish transla­
tions of propositions and amendments were not set forth 
on the voting machines was because of the physical im­
possibility of finding sufficient space on the face of the 
ballot in the voting machines to provide such translations. 
When counsel for plaintiffs in the Torres case agreed to 
the affixing of a Spanish translation of all propositions 
and amendments to the metal panel on the right side of 
the voting machines, the defendant New York City Board 
of Elections withdrew their objections to the relief sought 
by plaintiffs and entered into a stipulation which agreed 
to each of the provisions subsequently set forth in the 
preliminary injunction issued by Judge Stewart. The 
order of Judge Stewart in the Torres case did not con­
tain any finding that the New York City Board of Elec­
tions had invoked any improper “ test or device” within the 
meaning of §5 of the Voting Rights Act. Assuming 
arguendo, the validity of Judge Stewart’s order, its find­
ing that the failure of the Board of Elections to provide 
Spanish translations was a violation of the Voting Rights 
Act can only be interpreted as referring to §4 (e ) of the 
Voting Rights Act (42 U.S.C. §1973b(e)) and could not 
serve as a basis for supporting the rescission of a declara­
tory judgment based upon the provisions of § 4(a) of that 
Act.

Despite the above, the District Court refused to grant 
appellant the opportunity for a Court hearing to challenge 
the merits of the Attorney General’s motion to reopen.



14

This then is not a situation in which the Court below has 
merely abused its discretion in rescinding the declaratory 
judgment previously granted to appellant. Rather, it is 
a case in which the District Court has erroneously assumed 
it had no discretion in passing upon the motion of the 
Attorney General to reopen other than to rescind the 
declaratory judgment previously granted to appellant. In 
short, the Court below has abrogated its judicial re­
sponsibility that is imposed by § 4(a) of the Voting Rights 
Act.

The District Court’s order of January 10, 1974 leaves 
appellant with the burden of having to try this proceeding 
anew in order to remove itself from the onerous filing 
'requirements imposed by § 5 of the Voting Rights Act 
and the subsequent delays in the enforcement of any elec­
tion law and procedure in the three affected counties. It is 
also apparent from the statements of the Court below that 
it erroneously believes that a judgment exempting a state 
or political subdivision pursuant to §4 (a ) must be based 
on the consent of the Attorney General. It is, therefore, 
likely that unless the District Court’s order of January 10, 
1974 is reversed or modified by this Court, the Counties of 
'New York, The Bronx and Kings will remain subject to the 
requirements of § 5 of the Voting Rights Act despite the 
fact that no evidence has ever been presented to the District 
Court showing that any single citizen o f those three 
counties has been idenied the right to vote by reason of such 
citizen’s race or color.

Conclusion

For the reasons .stated above, it is submitted that this 
'Court has jurisdiction of this appeal and that probable 
jurisdiction should be noted.

Since the order appealed from has resulted in the sus­
pension of all election laws and procedures in the Counties



15

of New York, The Bronx and Kings, which are different 
from those in effect on November 1, 1968 until such time as 
such laws and procedures have been approved by the 
Department of Justice or by the District Court for the 
District of Columbia, it is respectfully requested that this 
appeal be given summary consideration and that the order 
below be summarily reversed or, in the alternative, that 
this appeal be given expedited consideration by the Court.

Dated: New York, New York, March 6, 1974.

Respectfully submitted,

Louis J. L efkowitz 
Attorney General of the 

State of New York 
Attorney for Plaintiff-Appellant

Samuel A. H irshowitz 
First Assistant Attorney General

George D. Z uckerman 
Assistant Attorney General 

Of Counsel



16

APPENDICES

APPENDIX “A ”

Notice of Appeal

UNITED STATES DISTRICT COURT 
D istrict of Columbia

Civil Action No. 2419-71

♦

N ew  Y ork State on behalf of New York, Bronx and Kings 
Counties, political subdivisions of said State,

against
Plaintiff,

U nited States of A merica,
Defendant,

National A ssociation for the A dvancement of 
Colored People, et al.,

Intervenors.
■+

Notice of A ppeal to the Supreme Court 
of th e  U nited S tates

Notice is hereby given that plaintiff New York State on 
behalf of New York, Bronx and Kings Counties, political 
subdivisions of said State, hereby appeals to the Supreme 
Court of the United States from the order entered in this 
action on January 10, 1974, denying plaintiff’s motion for 
summary judgment and rescinding the declaratory judg­
ment previously granted to plaintiff by order of April 13,



17

Appendix “A ”—Notice of Appeal.

1972 and directing plaintiff to comply with the require­
ments of § 5 of the Voting Rights Act of 1965, as amended.

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

Louis J. L efkowitz 
Attorney General of the 

State of New York 
Attorney for Plaintiff-Appellant 
Two World Trade Center 
New York, N. Y. 10047 
(212) 488-7413

By George D. Z uckerman

Assistant Attorney General



18

Order of the District Court, Dated January 10, 1974

UNITED STATES DISTRICT COURT 
F or the D istrict of Columbia

Civil Action No. 2419-71 
------------------- 1-------------------

N ew  Y ork State on behalf of New York, Bronx and Kings 
Counties, political subdivisions of said State,

Plaintiff,
vs.

U nited States of A merica,
Defendant,

N ational A ssociation for the A dvancement of 
Colored People, et al.,

Intervenors.
-------------------- ,--------------------

Order

Upon consideration of the arguments and moving papers 
of the Attorney General to rescind the judgment entered 
on April 13, 1972, by this Court, it is by this Court this 
10th day of January 1974,

Ordered that the judgment of April 13,1972, be rescinded 
and plaintiff’s Motion for Summary Judgment is denied; 
and it is

F urther Ordered that the Counties of Bronx, Kings 
and New York shall hereafter comply with the require­
ments of Section 5 of the Voting Rights Act of 1965, pro­
vided that this Order shall not invalidate the election of 
those persons presently holding office under color of law.

E dward A llen T amm  
G W  J ones 
June L. Green

A P P E N D IX  “ B ”



19

Motion to Reopen

I n th e

UNITED STATES DISTRICT COURT 
F or the D istrict of Columbia

Civil Action No. 2419-71 

------------------- +-------------------

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

Plaintiff,
v.

A P P E N D IX  “ C ”

U nited States of A merica,
Defendant.

-------------------- «--------------------

Pursuant to the provisions of Section 4(a) of the Voting 
Rights Act of 1965, 42 U.S.C. § 1973(b) (a), the United 
States of America, defendant herein, respectfully moves 
that this Court reopen the captioned action, rescind the 
judgment entered on April 13, 1972 and deny the plaintiff’s 
motion for summary judgment. As grounds for this 
motion the United States would show that:

1. On September 26, 1973 the United States District 
Court for the Southern District of New York ruled that 
past elections have been conducted exclusively in English, 
and that voting instructions and the ballots have been 
printed only in English in New York City. A certified 
copy of the Court’s Findings of Fact, Conclusions of Law 
and Preliminary Injunction is attached.



20

Appendix “C”—Notice to Reopen.

2. As a matter of law the Court found that the conduct 
of an election only in English violates the rights of Spanish 
speaking citizens living in New York City in contravention 
of the Voting Rights Act of 1965, as amended, and the 
Civil Rights Act of 1871, 42 U.S.C. 1983.

Based on the foregoing, the United States alleges that 
the application of an English only requirement, as found 
by the United States District Court for the Southern Dis­
trict of New York, is the use of a “ test or device”  within 
the meaning of Section 4(c) of the Act, 42 U.S.C. 1973 
(b )(c), and alleges that the test and device as currently 
and recently used in the City of New York has been used 
for the purpose or with the effect of denying or abridging 
the right to vote on account of race or color of Spanish 
speaking citizens of the United States living in New York 
City.

J. Stanley J. P ottinger

Assistant Attorney General

Gerald W . Jones

Attorney
Department of Justice

M. K arl S hurtliff

Attorney
Department of Justice



21

A P P E N D IX  “ D ”

Transcript of Proceedings in District Court of 
January 4, 1974

UNITED STATES DISTRICT COURT 
F ob the D istkict of Columbia

Civil Action 2419-71

+

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

Plaintiff,
v.

U nited States of A merica,
Defendant,

N.A.A.C.P., New York City Region of New York State 
Conference of Branches, et al.,

Applicants for Intervention.

-------------------- ♦--------------------

T ranscript of Proceedings

Courtroom No. 7 
U. S. Courthouse 
Washington, D.C. 
Friday, January 4, 1974

The above-entitled matter came on for Calendar Call in 
open court at 10:00 o’clock a.m., before T he H onorable 
E dward A. Tam m , United States Circuit Judge, and T he 
H onorable June L. Green, United States District Judge.



22

E ugene T. F edoration 
Official Court Reporter 
6804 U. S. Court House 
Washington, D.C. 20001

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.

A ppearances :

John Proudfit, Esq.,
appearing on behalf of Plaintiff.

M. K arl S hurtliff, Esq.,
Gerald W. J ones, Esq., and
M ichael S cadron, Esq.,

appearing on behalf of defendant.

E ric S chapper, Esq.,
appearing on behalf of Applicants for Intervention.

Proceedings

The Deputy Clerk: Civil Action 2419-71, New York
versus the United States of America. Mr. Proudfit for the 
plaintiff; Mr. Jones, Mr. Shurtliff and Mr. Schnapper for 
the defendant.

Mr. Schnapper: The last time we were here the im­
mediate question before the Court raised by the plaintiff 
had to do with whether certain interrogatories served by 
the plaintiff would be answered. They have been answered 
both by the United States and by the intervener, 
N.A.A.C.P.

The N.A.A.C.P. believes at this point a motion for sum- 
mary judgment would appear to be appropriate and would 
resolve many of the issues in the case. With regard to 
that, we have prepared and submitted to the State of 
New York a proposed statement of uncontested facts upon 
which we would make that motion.



23

We thought it appropriate to submit it to the State of 
New York informally to have some idea whether there 
were in fact enough facts upon which we agreed, otherwise 
we might he wasting the Court’s time and everybody 
else’s time to go all the way to the point where we filed a 
motion.

It is our understanding tthat the State of New York, 
within two weeks, will be able to advise us informally 
roughly what of those facts, if any, they would contest 
were a motion filed. Assuming that their response in­
dicates a motion would appropriate, we would file a motion 
within two weeks thereafter, which would make it approxi­
mately four weeks from today.

I understand that the State of New York would then 
want approximately three weeks to respond to our motion, 
and it could be heard at any time thereafter.

Judge Green: Well, one of the difficulties is that it is 
getting closer and closer to the time for the next elections. 
We have had an opportunity to consider the fact that 
previously the only basis for the license, in effect, or the 
exemption to New .York had been by agreement with the 
government. When the government withdrew its agree­
ment, perhaps that should no longer be in effect, and that 
would leave, I believe, New York in the position of peti­
tioning the Attorney General. Would it not?

Mr. Schnapper: I would phrase that somewhat dif­
ferently. They .would be seeking approval from the At­
torney General of all the changes that have occurred since 
probably about 1971. That would be the posture of the 
case.

At this point I think there would be enough time for 
these petitions that were to be passed on.

As I indicated, when we were here last month we were 
very concerned that if those are not submitted soon, there

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.



24

simply isn’t going to foe time. I f the exemption were lifted 
at /any point—if it1 were to be lifted say at any .time 
between now and November, it would vastly complicate the 
problem of holding elections in New York. That is why we 
indicated before we hoped it would be lifted sooner rather 
than later.

It was also our understanding, of course, any such action 
lifting the exemption would not indicate any predisposi­
tion as to the merits of the case. We understand that it is 
purely procedural as a result of the new posture of the 
case.

Judge Green: That is what we had considered, and
Judge Jones has authorized me to indicate that he concurs 
in that.

Mr. Proudfit: May it please the Court, John Proudfit 
for the State of New York.

Your Honors, with respect to the exemption, it was our 
understanding that this 'Court had merely reopened this 
proceeding and that under the prescription in the Voting 
Rights Act this Court has jurisdiction for a five-year 
period, and any new information indicating that voters 
have had their right to vote abridged, or denied may be 
presented to this Court, and on the basis of that the Court 
could then remove the exemption.

We would ask the Court at this time to require that the 
defendants do exactly that, that they present information, 
if they have such information, showing that the State of 
New York has denied or abridged the right—

Judge Green: What you are doing is changing the bur­
den of proof. The burden is really on the State of New 
York to show that it is not.

Mr. Proudfit: Your Honor, I believe that we initially 
did that and we obtained the exemption from this Court. 
New allegations have now been made, and we would like an

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.



25

opportunity to present evidence in contrafusion of those 
allegations. We believe that those allegations are without 
any factual basis at all. They are very serious allegations, 
as the Court well knows.

Judge Green: You see, the reason that it went through 
so easily was that the government had simply agreed with 
the State of New York that there was no controversy. When 
N.A.A.C.P. brought it to the attention of the government 
that there was indeed a controversy, the government with­
drew its support of New York’s position. I think that, 
under the circumstances, nothing has really been proven at 
all, and we are back where the State of New York really 
should start and proceed under the statute by submitting 
all of its plan to the Attorney General.

Mr. Proudfit: Your Honor, it is our feeling that the
United States Government has now said that the prior 
exemption should be removed because of a recent decision 
of the District Court in the Southern District of New York, 
decision which has come down since Your Honors made 
the judgment in this case. We feel that we should have an 
opportunity to respond to that, and that until we have done 
so, that the exemption should remain in effect, that there 
has been no really new evidence presented to the Court as 
required by the statute.

Judge Green: Well, this Court has not adjudicated the 
matter. That’s the point.

Mr. Proudfit: I understand that.
Judge Green: It was simply based upon the fact that 

the government had agreed with the State of New York 
that they might have the exemption. Once they withdrew 
that approval, that leaves you without it, and this Court 
would so rule.

So we would suggest that as expeditiously as possible, 
that New York make its application to the Attorney Gen­

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.



26

eral on all of the questioned matters so that determination 
can be had there.

Mr. Proudfit: Is Your Honor saying that in other words 
the posture of this case is back in its original state or that 
in applying for the exemption we proceed from the last 
judgment that Your Honors gave in giving us the exemp­
tion ; in other words, covering the period from the judgment 
in April of 1972?

Judge Green: No, it would have to go back to the origi­
nal whole package of the voting changes that have been 
made that are affected in this matter. Now, I believe that 
goes back to 1970; doesn’t it?

Mr. Proudfit: Well, Your Honor, it would go back to
the ten-year period. In other words, you are saying that 
our application now would have to be the same as our ap­
plication which was made to the Court at the prior time?

Judge Green: That is correct.
Judge Tamm: Anything further, counselor?
Mr. Proudfit: If Your Honors have made your decision, 

I have nothing further.
Judge Tamm: You are stuck with it.
Mr. Proudfit: I am afraid so, Your Honor.
Judge Green: Submit an order, please.
Mr. Shurtliff: May it please the Court, the decision that 

you have reached would, in our judgment, allow us to re­
solve any remaining factual differences per this litigation 
with the State rather expeditiously, and whether or not 
they would then wish to renew their motion for summary 
judgment or whether we would file a cross-motion or a 
motion for summary judgment, I think we can do rather 
expeditiously in this matter.

We have supplied to counsel for the State and inter­
veners a proposed stipulation of facts covering the rather 
less broad issues as we perceive them than does the

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.



27

N.A.A.C.P. Hopefully within the next few weeks we should 
he able to reach agreement there, and one or the other or 
both parties can move for summary judgment.

Judge Green: Fine. I think we would like to have
another hearing on this case to determine how far you 
have gone with the department in working it out and 
so on so that we will know what is happening.

How about February 4th?
Mr. Schnapper: I believe that would be all right.
Mr. Jones: Fine.
Mr. Schnapper: We would like to ask that the hearing, 

if possible, be set in the afternoon because it is necessary 
for lawyers from New York to come down the night be­
fore to be sure of prompt arrival what with the problems 
of planes and taxis.

Judge Green: The difficulty, you see, is that Judge
Tamm will have hearings scheduled in the afternoon and 
this Court would be in the middle of trial. It makes it 
a bit difficult. So that I am afraid we will still have to 
stick with the morning time because that allows us to 
take care of this matter before we go into our regular 
schedule for the day.

Mr. Schnapper: All right. Thank you.
Judge Green: I am sorry. So that will be February 

4th at 10 o’clock. And you will submit an order.

(Whereupon, at 10:10 o ’clock a.m., hearing in the above- 
entitled matter was concluded.)

R eporter’s Certificate

Certified to be the original transcript of proceedings.

E ugene T. F edoration, C.S.R.
Official Court Reporter

Appendix “D”—Transcript of Proceedings in
District Court of January 4, 1974.



28

APPENDIX “ E”

Memorandum Order of the District Court of 
January 19, 1974

UNITED STATES DISTRICT COURT 
F or the D istrict of C olumbia

Civil Action No. 2419—71 

------------------- +-------------------

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

Plaintiff,
vs

U nited States of A merica,

Defendant,

National A ssociation for the A dvancement 
of Colored People, et al.,

Intervenors.
-------------------- ♦--------------------

M emorandum Order

This matter is before the Court on plaintiff’s Motion for 
a Stay. To place this Motion in proper perspective, a brief 
synopsis of the case history is necessary.

On December 3, 1971, the State of New York filed this 
action to exempt the counties of Bronx, Kings and New 
York from coverage of Sections 4 and 5 of the Voting 
Rights Act of 1965, as amended. On March 17, 1972, New 
York moved for summary judgment, and on April 3, 1972,



29

the defendant, the United States, consented to the entry 
of judgment for the plaintiff. This Court permitted the 
consent judgment to be entered. At no time did this Court 
act on the merits of the action.

Thereafter, on April 7, 1972, the National Association 
for the Advancement of Colored People filed a Motion to 
Intervene in the instant action. This Court considered 
the Motion and denied it on April 13, 1972, on the ground 
of untimeliness. On June 21, 1973, the Supreme Court 
affirmed this Court’s denial of the Motion to Intervene, 
but stated further that the applicants for intervention 
“ were free to renew their motion to intervene”  at a future 
date. 41 U.S.L.W. 5037, 5045.

Subsequently, on September 28, 1973, the N.A.A.C.P. did 
file a second Motion to Intervene. An opposition to said 
Motion was filed by plaintiff New York State on October 
16, 1973. On October 23, 1973, the defendant, the United 
States, filed a Motion to Reopen the case. On October 31, 
1973, the plaintiff, New York, filed an Affidavit in Opposi­
tion to the Motion to Reopen.

Upon consideration of these papers, this Court granted 
both the Motion to Reopen and the Motion to Intervene. 
The Motion to Reopen was granted pursuant to § 4(a) of 
the Voting Rights Act of 1965, as amended, 42 U.S.C. 
 ̂1973b(a), which provides in pertinent part that the Court 

retains jurisdiction of the action for five years after judg­
ment and “ shall reopen the action upon motion of the At­
torney General alleging a test or device has been used for 
the purpose or with the effect of denying or abridging the 
right to vote on account of race or color” . This allega­
tion having been made by the Attorney General, based on 
a conclusion of law issued in the case of Torres, et al. v. 
Sachs, et al, Civil Action No. 73 Civ. 3921 (CES) (S.D. 
N.Y.), filed September 27, 1973, this Court granted the

Appendix “E”—Memorandum Order of the
District Court of January 19, 1974.



30

Motion to Reopen. The stipulation to entry of a consent 
judgment having been withdrawn by the United States, 
the Court could no longer view the action as ‘ ‘ settled by 
consent” .

On the issue of intervention, the Court granted the Mo­
tion to Intervene because it was in conformance with the 
requirements of Rule 24 of the Federal Rules of Civil 
Procedure and it was now timely in view of the Court’s 
decision to reopen the case.

At the second calendar call January 4, 1974, the question 
of whether this Court was rescinding its April 13, 1972 
decision to allow the filing of the consent judgment arose. 
On January 10, 1974, this Court entered an Order rescind­
ing the April 13, 1972 judgment and denying the plaintiff 
New York’s Motion for Summary Judgment. That Order 
included a specific provision that “ the election of those per­
sons presently holding office under color of law” shall not 
be invalidated.

The Motion for a Stay of this latest Order was received 
by this Court in chambers on Tuesday, January 15, 1974. 
(This Motion was not filed with the Clerk of the Court, but 
sent directly to each Judge on the panel). The January 
10, 1974 Order does not change the status of the presently 
elected officials. However, it does vest jurisdiction in this 
Court to require New York to submit its Congressional 
and State legislative reapportionment statutes to the Jus­
tice Department for consideration. New York State has 
agreed to make such submissions in its Motion for a Stay. 
(Plaintiff’s Motion for a Stay, number 17).

The Court does not believe that the circumstances pre­
sented herein warrant the granting of a stay. The situa­
tion is altered with respect only to the future actions of 
the State.

Appendix “E”—Memorandum Order of the
District Court of January 19, 1974.



31

For the foregoing reasons, it is by the Court, this 18th 
day of January 1974,

Ordered that plaintitf’s Motion for a Stay should be and 
hereby is denied.

E dward A ulen T amm  

G. W . J ones 

J une L. Green

Appendix “E”—Memorandum Order of the
District Court of January 19, 1974.