New York v. United States Jurisdictional Statement
Public Court Documents
March 6, 1974

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Brief Collection, LDF Court Filings. New York v. United States Jurisdictional Statement, 1974. a0acd176-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ca30a67f-00dd-4790-b3a8-85b8ff0689d9/new-york-v-united-states-jurisdictional-statement. Accessed June 17, 2025.
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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.