United Jewish Organizations of Williamsburg Inc. v. Carey Brief for Respondents-Intervenors In Opposition

    I n  the

(Hxtwct nf MnxUh
October Term, 1975 

No. 75-104

U nited J ewish Oeganizations of

WiLLIAMSBUEGH, I n C., et ol.,

Petitioners,

H ugh L. Caeey, et at.

ON PETITION POE A WRIT OP CERTIOEAEI 
TO THE UNITED STATES COUET OP APPEALS 

POE THE SECOND CIECUIT

BRIEF FOR RESPONDENTS-INTERVENORS 
IN OPPOSITION

J ack Geeenbeeg 
E eic S chnappbe 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Respondents-Intervenors



I n  the

©ourt nf MnxUh
October Term, 1975 

No. 75-104

U nited J ewish Organizations of 
W illiamSBUBGH, I nc., et al.,

Petitioners,
V.

H hgh L. Carey, et al.

o n  p e t it io n  POE A WEIT OF CEETIOEAEI 
TO THE UNITED STATES COUET OP APPEALS 

POE THE SECOND OIECUIT

BRIEF FOR RESPONDENTS-INTERVENORS 
IN OPPOSITION

Opinions Below

The opinion of the Court of Appeals (Appendix E of 
the Petition) is reported at 510 F.2d 512. The opinion of 
the District Court (Appendix H of the Petition) is reported 
at 377 P.Supp. 1164.

Jurisdiction

The jurisdictional requisites are adequately set forth 
in the Petition.



Questions Presented

Do the Fourteenth and Fifteenth Amendments prohibit 
New York from adopting district lines designed to over­
come the discriminatory effect of an earlier districting 
plan?

Statement of the Case

In January, 1972, the State of New York enacted legis­
lation altering, inter alia, the Senate and Assembly lines 
in Kings County (Brooklyn). Chapter 11, Laws of New 
York, 1972. On January 31, 1974, New York submitted 
these 1972 district lines to the Attorney General of the 
United States for his approval under section 5 of the 
Voting Rights Act of 1965, 42 U.S.C. § 1973c. On April 1, 
1974, Assistant Attorney General J. Stanley Pottinger, 
acting on behalf of the Attorney General, disapproved the 
1972 redistricting in Kings County on the ground that it 
have the effect of discriminating against non-whites on the 
basis of race.

On May 30, 1974, New York adopted a new set of district 
lines designed to remove the discriminatory aspects of the 
lines disapproved by the Attorney General. Chs. 588, 589, 
590, 591 and 599, Laws of New York, 1974. On July 1, 
1974, Assistant Attorney General Pottinger approved the 
1974 lines as sufficient to eliminate the discriminatory effect 
of the old 1972 lines.

On June 11, 1974, petitioners commenced this action in 
the United States District Court for the Eastern District of 
New York, alleging that the 1974 lines discriminated against 
whites, and seeking to compel New York to hold elections 
using the 1972 lines which the Attorney General had al­
ready disapproved. The district court permitted the re- 
spondent-intervenors, several individuals and a branch of



the N.A.A.C.P., to intervene as defendants. On July 25, 
1974, the district court dismissed the complaint, holding 
that the 1974 district lines were constitutional and had 
properly been enacted to correct the discriminatory aspects 
of the 1972 lines.^ On January 6, 1975, the Court of Appeals 
for the Second Circuit affirmed that dismissal.^

Reasons for Denying the Writ

Petitioners suggest first that the Attorney General erred 
when he disapproved the 1972 district lines. The record 
before the Attorney General revealed that the 1972 lines, 
as previous redistricting, had been drawn so as to keep 
in office, despite a growing non-white population in Kings 
County, white members of the Assembly and Senate. The 
vast majority of non-whites were concentrated in a con­
tiguous ghetto in and around the Bedford-Stuyvesant area. 
The gerrymandering was accomplished by pairing non­
white neighborhoods with far larger white areas, so that 
most non-white voters were placed in districts with sub­
stantial white majorities. Voting patterns clearly indicated 
that white voters voted as a block against a black or Puerto 
Rican candidate and that no black or Puerto Rican had 
ever been elected to the legislature from Kings County by 
a district with a majority of white voters. As a result of 
this gerrymandering, although 35.6% of the population of 
Kings County was non-white, only 11.7% of the Senate 
districts and 23.2% of the Assembly districts had non­
white majorities. There were 574,811 non-whites living in 
predominantly white Senate districts, but only 44,081 whites 
living in predominantly non-white Senate districts. Simi­
larly, there were 361,707 non-whites living in predominantly 
white Assembly districts, but only 135,260 whites living in

 ̂Petition 53a-58a. 
 ̂Petition 7a-50a.



predominantly non-white Assembly districts. In this man­
ner a majority of blacks and Puerto Ricans in Kings 
County were gerrymandered into districts where a black or 
Puerto Rican candidate could not be elected, and were thus 
effectively disenfranchised. Statistical analysis indicated 
that the few non-white districts, placed at the very center 
of the ghetto, were quite compact, but the white districts 
used to disenfranchise non-white voters were far from 
compact since they were drawn to pair ghetto communities 
with larger white areas miles away.^ In view of this evi­
dence the Attorney General concluded that New York had 
failed to establish that the 1972 lines would not have the 
effect of discriminating against black and Puerto Rican 
voters.

Petitioners challenge the Attorney General’s decision on 
several grounds. First, petitioners suggest that the Attor­
ney General could only disapprove the 1972 lines if they 
had been adopted for the purpose of discriminating on the 
basis of race.* Section 5 of the Voting Rights Act, however, 
requires that a new districting plan must be free both of 
a discriminatory purpose and of any discriminatory effect. 
42 U.S.C. § 1973c; City of Richmond v. United States, 43 
U.S.L.W. 4865, 4867-70 (1975); Georgia v. United States. 
411 U.S. 526, 530 (1973). Second, petitioners claim that 
the Attornej' General erred because he imposed on New 
York the burden of proving that the 1972 lines had neither 
a discriminatory purpose or effect." The applicable regu­
lations expressly place this burden on the state, 28 C.F.R. 
§ 51.19, and the Court upheld this burden in Georgia v. 
United States, 411 F.S. 526, 536-41 (1973). The Coiirt of

® Mouioramhuu of N.A..\.C.P. lu Opx'>osition to Apprvn-al of 
Chapters 11, Tti, 77 and 78. New York l.aws of 1972: Letter of 
Mareli 21. 1974 to 4. Stanley Pottinger fwnn counsel for the 
N..\..\.C.P.

* Petition 11, 
" Ih'tition 11.



Appeals correctly concluded/ and petitioners virtually con­
cede/ that the correctness of the Attorney General’s deci­
sion cannot be challenged in the instant proceeding.

The 1974 lines to which petitioners object significantly 
remedied the discriminatory effect of the disapproved 1972 
lines. Under the 1974 plan 30% of the Senate districts 
and 31.4% of the Assembly districts had non-white major­
ities, compared to 35.1% of the county population,* a sub­
stantial increase over the 1972 figures. The number of 
non-whites living in Senate districts with white majorities 
was reduced from 574,811 to 169,880, and the number of 
non-whites living in Assembly districts with white major­
ities was reduced from 361,707 to 167,632.® The 1974 lines 
significantly reduced the previous practice of pairing non­
white portions of the Bedford-Stuyvesant area with larger 
white communities far away.

Under the 1974 lines, whites who constitute 64.9% of 
the county population, are in a majority of 68.6% of the 
Assembly districts and 70.0% of the Senate districts. 
Among the officials elected under the 1974 lines, 77.2% of 
the Assemblymen are white and 80% of the Senators are 
white. Despite those facts, petitioners assert that this dis­
tricting plan unfairly discriminates against whites. Peti­
tioners do not claim that whites have been deprived of a 
meaningful opportunity to participate in the political pro­
cesses and to elect legislators of their choice. White v. 
Regester, 412 U.S. 755, 766 (1973). Manifestly white voters 
in the county exercise political power significantly greater 
than their numbers alone would warrant. Petitioners urge,

® Petition 20a-22a.
’ Petition 9, n.3.
* Petition, 27a, n.21.
® See Interim Report of the Joint Committee on Reapportion­

ment, A29, A31.



rather, that in remedying the discriminatory effect of the 
1972 lines New York could not consider whether the pro­
posed 1974 lines also discriminated against blacks and 
Puerto Ricans.

There was manifestly no way the New York legislature 
could have remedied the discriminatory effect of the 1972 
lines without considering the racial composition of possible 
new districts. Clearly the Attorney General, in passing on 
new districts submitted by New York, was obligated to 
consider the racial composition of those districts in order 
to decide whether they, like the 1972 districts, had a dis­
criminatory effect. I t  would have been irresponsible for 
New York to have adopted a series of district plans at 
random, without regard to their discriminatory effect, 
until it stumbled across a plan without the forbidden effect. 
Petitioners do not suggest New York should have done so, 
nor do they suggest any way in which the state could have 
corrected the defects of the 1972 lines. Petitioners’ con­
tentions, if accepted, would mean that, even if the 1972 
lines in fact violated section 5 of the Voting Rights Act, 
New York could not remedy that violation.

The “65 percent quota” to which petitioners object is 
nothing of the kind. The central defect of the 1972 lines 
was that they placed most of the non-white voters in 
districts in which a majority of the eligible voters were 
white. In assessing whether the new lines had overcome 
the discriminatory effect of the 1972 lines, it was necessary 
for New York to determine whether the majority of eligible 
voters in each proposed district were white. Available 
census data, however, reveals only the racial composition 
of the total population of each district, not of the voting 
age population. Due to the unusually large number of non­
white children in Kings County, a district with 65% non­
white total population has a voting age population approx­



imately 50% non-white.“  Thus the 65 percent standard 
was used, not to fix a particular quota, but merely to 
determine if the discrimination found by the Attorney 
General had been eliminated, i.e., to determine whether 
disproportionate numbers of non-whites were still in 
districts in which a majority of eligible voters were white. 
The city council districts which this Court approved in 
City of Richmond v. United States, 43 U.S.L.W. 4865, 4869 
(1975), were at least 64% non-white.

The 1974 district lines did not “guarantee” non-white 
control of the new districts. The Attorney General, in 
approving the 1974 lines, rejected the contention that he 
should require greater non-white majorities, reasoning 
that the new lines provided a “realistic opportunity for 
minorities to elect a candidate of their choice,” “  and that 
they were entitled to no more. In the five new districts 
where non-whites were for the first time a majority,^^ white 
candidates won the elections in four.“  Nor do the 1974 
lines “maximize” non-white representation. I t clearly 
would have been possible to increase the non-white popula­
tion in many districts and to create additional majority 
non-white districts, but the Attorney General in approving

In 1970 75.3% of all whites were 18 or over, but only 51.1% 
of all Puerto Ricans and only 58.2% of all blacks. United States 
Census, General Social and Economic Characteristics, New York, 
pp. 615, 644, 661. In addition, due to a defect in the census ques­
tionnaire, the population figures used by the New York legislature 
may have overstated the non-white population by as much as 
20%. Memorandum Of Applicants For Intervention in Support 
of Motions to Dismiss, pp. 26-27; Table 3.

Petition, 9a.
The 57th and 59th Assembly Districts, 17th and 23rd Senate 

Districts, and the 14th Congressional Districts.
12 White candidates were elected in all but the 23rd Senate Dis­

trict.



8

the 1974 lines declined to require thisd^ The 1974 lines do 
not create a number of majority non-white districts that 
is excessive compared to the county population; the pro­
portion of Senate and Assembly districts with non-white 
majorities is significantly lower than the proportion of the 
county population which is non-white.“  Compare City of 
Richmond v. United States, 43 U.S.L.W. 4865, 4868-69 
(1975).

The core of petitioners’ contention is that the Fourteenth 
and Fifteenth Amendments prohibit the states from delib­
erately adopting legislation to remedy racial discrimina­
tion. Such a construction would render the amendments 
literally self-defeating, forbidding both discrimination and 
any remedy therefor. In City of Richmond v. United 
States, 43 U.S.L.W. 4865 (1975), this Court held that, to 
ovecome the potential discriminatory effect of an annex­
ation, the city was obligated to deliberately adopt a “ward 
system [which] fairly reflects the strength of the Negro 
community after the annexation,” and which would afford 
non-whites “representation reasonably equivalent to their 
political strength in the enlarged community”. 43 U.S.L.W. 
at 4868, 4869. City of Richmond holds that an affected 
jurisdiction not only can but must consciously fashion a 
racially fair districting system to overcome the discrimin­
atory effect of an earlier election scheme disapproved by 
the Attorney General. The remedy adopted by New York 
in 1974 was not merely permissible, it was mandatory.

Even before City of Richmond this Court recognized that 
discrimination could not he remedied without considering 
the racial consequences of the proposed relief. Swann v. 
Charlotte-Mecklenburg Roard of Education, 402 U.S. 1, 18

Memorandum of Decision, Nos. V6541-47, pp. 14-18.
City of Richmond v. United States, 43 U.S.L.W. 4865, 4868-69 

(1975).



(1971) upheld the use of a racially based pupil assignment 
plan to end the effects of discrimination, on the ground 
that “[a]wareness of the racial composition of the whole 
school system is likely to be a useful starting point in 
shaping a remedy to correct past constitutional violations.” 
402 U.S. 1, 18 (1971). In a companion case the Court held 
unconstitutional a North Carolina law which prohibited 
the assignment of students “on account of race,” reasoning 
that such a statute would obstruct the creation of etfective 
remedies. “Just as the race of students must be considered 
in determining whether a constitutional violation has 
occurred, so also must race be considered in formulating a 
remedy.” North Carolina Board of Education v. Swann, 
402 U.S. 43, 45-46 (1971). The lower courts have con­
sistently recognized the need to use racial criterion to 
remedy racial discrimination.^®

There are, moreover, serious questions as to petitioners’ 
standing to maintain this action. Under the Voting Rights 
Act the Attorney General’s decisions can only be challenged 
by the State of New York in the District Court for the 
District of Columbia, not by private parties in other courts. 
Despite the changes worked by the 1974 lines, the incumbent 
white Assemblyman who in the past represented peti­
tioners’ community was re-elected, and white voters still 
control more legislative districts than their numbers alone 
would warrant. The petitioners themselves repeatedly 
testified that they had no interest in being in a majority

See e.g. Norwalk COBE v. Norwalk Redevelopment Agency, 
395 P.2d 920, 931-32 (2d Cir. 1968) (discrimination in urban 
development); Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 
1971) (discrimination in public housing) ; Associated General 
Contractors v. Altshuler, 490 F.2d 9, 16 (1st Cir. 1973), cert, 
denied 416 U.S. 957 (1974) (employment discrimination); Brooks 
V. Beto, 366 F.2d 1 (5th Cir. 1966) (discrimination in the selec­
tion of grand jurors).



10

white district.^’ Although plaintiffs object that their com­
munity has been divided between two Assembly districts, 
the record reveals that this was done to keep as many 
of them as possible in a heavily white district, a practice 
of which plaintiffs do not complaind* Petitioners’ desire 
to litigate the abstract questions posed by the Petition 
does not amount to a clear and substantial injury arising 
from the alleged illegality of which they complain.

The decision of the Court of Appeals below is both 
correct and consistent with the decisions of this Court 
and other courts of appeals. This case presents no im­
portant questions of law which this Court has not already 
settled.

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the petition for a writ of certiorari should be denied.

Eespectfully submitted.

J ack Greenbeeg

E ric S chkapper 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Respondents-Intervenors

”  Trauseript of Hearing of June 20, 1974, pp. 41-42, 104-05, 112.
'®Mr. Scolaro, who drafted the 1974 tines for the Legislatirre, 

at (irst testified that this division was necessary to eoinply with 
Assistant Alioruey (ieneral Pottinger’s decision. Petition 12. 
Hut on erosS-exainination he eoneeded it would have been possible 
to comply with tlie t'ottinger deeision atul keep plaintitlV eom- 
innnily intael, and that he had not done so beeause that could 
haVI' been aeeoiuplisheil only by placing the community iu a dis­
trict willi a substantial nmi-white majority. Trauseript of Hearing 
of .Inne 20, 1SI74, pp. 171-75; see Petition 25a,



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