WRIGHT v. ROCKEFELLER

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Argument of Justin N. Feldman

Chief Justice Earl Warren: Number 96, Yvette M. Wright et al., Appellants, versus Nelson A. Rockefeller, Governor of New York.

Mr. Feldman.

Mr. Justin N. Feldman: Chief Justice, may it please the Court.

This case differs from the state apportionment cases and from the Georgia congressional district case, congressional districting case, because this case involves racial gerrymandering.

It presents the question may a state segregate voter by race in the drawing of congressional district lines?

At the same time, it presents another question, may a state by its silence, by its refusal to introduce any proof whatsoever justify such segregation as a matter of law?

I have phrased this latter question in this way because the appellants contend that in creating New York Counties, Manhattan Islands, if you will, four congressional districts in 1961 when the legislature cut down the number of districts previously apportioned to Manhattan at 6-to-4.

The legislature created two of those four districts that were racially gerrymandered.

One, a virtually all white district, and one, a virtually all Negro and for the Puerto Rican district, and not only were these districts racially gerrymandered but as we prove below and as I shall review for this Court momentarily, they were racially gerrymandered by the legislature in a way which presented the maximum so to speak and that the legislature could not possibly have created districts in this particular urban area which would have been any more segregated.

The state has been absolutely silent as to the background of the statute.

There is no legislative history.

The districting statute was enacted in 1961 in an extraordinary or special session of the legislature convened one day when the bill was laid on the desks of the legislators or one evening I should say and enacted the next morning and signed by the governor that day.

No hearings, no debate, there was a vote but that was all, so that that sheds no light.

Therefore, we had to prove that the purpose and effect of the portion of the statute we challenge, namely the portion directed toward the districting of Manhattan Island, we had purpose and effect of apportion we challenge.

We had to prove the purpose and effect I should say by analysis and inference.

And we submit that if our proof, if the totality of our proof, if you will, to use the language of Johnson against Virginia.

If the totality of our proof is not deemed sufficient for this purpose, it would mean in our judgment that no one could ever prove unconstitutional racial districting in any urban area of the United States.

And we also submit that if this proof that I'm about to discuss does not prove racial districting, in the case of Manhattan Island, then it proves that there was no rational basis.

It proves to use the language of the Solicitor General of the last week "crazy quilt districting", no rhyme or reason districting, because I submit there is no other discernable basis for this districting other than race.

Now, what is it the legislature did and how did --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: I'm suggesting sir, that we prove the racial inference.

No one has come --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: In this record.

Justice Byron R. White: Are thereby eliminating the political --

Mr. Justin N. Feldman: Yes sir, I eliminate a political reason and I think we could -- we could also demonstrate and perhaps even did demonstrate below the elimination of that but let's come back to that Mr. Justice White if you like to later.

The question is, what if they do and how did they do it?

Well, what did they start with?

They started that the will where they only contained political subdivision, an island, New York County.

It's not a very complicated configuration really.

There were no other county lines or rivers or boundaries that they had to give consideration to and they had to cut it into four parts and they started with the population of 1,698,241 people.

A quarter -- a quarter of that would be approximately 424,000 and cutting it into four parts, they were confronted of course with one fact which was unusual, and that is that approximately 40% of that 1,698,000 people were Negroes and Puerto Ricans.

Now, in doing the carving of this corpus, they took a very delicate scalpel and made their first incision, if you look at the language of the statute, in the creation of the Seventeenth Congressional District right at the point where the East River meets 14th Street.

This is the point of the first incision.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Justin N. Feldman: There are previous operations, yes sir.

But this particular Seventeenth District was never started at that point before.

This was a point immediately South of an area we call Stuyvesant Town and Peter Cooper which interestingly enough by decision of our Court of Appeals in 1949 in the case of Dorsey against Stuyvesant Town was maintained as a non-integrated housing project, the project built by the Metropolitan Life Insurance Company and which according to the proof in the record obtained 23,000 people of whom they're only 105 non-whites and Puerto Ricans.

Justice Hugo L. Black: (Inaudible)

Mr. Justin N. Feldman: I will sir.

I will get to that.

I have overlays which will show the -- the -- the lines, the additions, collisions and changes.

They then went along here and twisted and turned and wind and wove leaving out a portion here, leaving out a portion here, I think you can see exactly how they went around to create the Seventeenth District and we will show what everyone of these turns and twists and we did then the record means in racial terms.

Until they ended up at a hundred and -- well at Central Park, the line here and those that the Justices, if it please the Court, would know Manhattan.

This line along Central Park, between 72nd Street and 110th, is on the eastern border of the park so it contains no people, it merely contained the park.

And they ran it up along that eastern boarder of the park until 110th Street.

The east -- well the Western border of the park, excuse me, the eastern border of Central Park West.

Yes Mr. Justice White, the eastern border of Central Park West to 110th Street, where they ran along the southern border of 110th Street the northern border in the park against obtaining no people.

Now, down along the and not straight across, mind you, no.

But down along the eastern border of the park, the -- well the Western, it's the eastern border of the park, the West side of 5th Avenue until they got to 98th Street and then started this step-like configuration and bringing back into the river and back to the point of place of beginning, the next point of a decision with a scalpel in the 18th Congressional District.

Here they start at the East River and 165th Street.

Again, not in the northern tip or any place else but they cut right in here, twist and turn around, make their little excised here for Washington Heights and St. Nicholas Terrace.

Come down along again to Morningside Heights but now down behind the Morningside Park, if you will, back down on 110th and conforming to the border of the Seventeenth as it was originally cut.

That gave them two Congressional Districts.

There were two left, two -- two remaining, they drew a straight line across 86th Street and cut the two remaining Districts in -- in half.

Not quite in half in terms of population but 86th Street was the convenient cross town street.

That's the way Manhattan Island was carved.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Justin N. Feldman: These two around all around the Westside of the Island except for the 20th and also above 165th is on the Eastside of the Island.

Justice Arthur J. Goldberg: Covers the 5th?

Mr. Justin N. Feldman: Right.

And of course the Seventeenth goes also over to the Westside for certain portions although the bulk of it is on the Eastside.

Justice Arthur J. Goldberg: What about the Wall --

Mr. Justin N. Feldman: The Wall Street District is the Nineteenth, this area below.

Now, --

Justice Potter Stewart: Excuse me, as I see the Twentieth there is a gulf behind the Bronx there is the Harlem River?

Mr. Justin N. Feldman: Oh this is the point of dispute, the Attorney General and I had for quite a while.

This I maintain is the Harlem Ship Canal.

The Harlem River runs around here and the Harlem Ship Canal was dug here.

The Attorney General says that despite the dive of creek that runs around here and that was not the Harlem River but in any event, I don't think there's any dispute that this is Manhattan and it is New York County, that little tip north of the Harlem Ship Canal.

Justice Potter Stewart: I thought the --

Mr. Justin N. Feldman: And there's no part of the Bronx, it doesn't go outside of New York County.

Justice Potter Stewart: I used to -- the new territories today, I always thought the Harlem River was the boundary of New York County.

Mr. Justin N. Feldman: Well, many people feel that the Harlem Ship Canal above Baker Field is the boundary of New York County.

It's not this area above Marble Hill.

Justice John M. Harlan: What was that?

Mr. Justin N. Feldman: Marble Hill.

Now, what it does -- what it does accomplish by the creation of this jagged Seventeenth?

They excluded from the Seventeenth 97 % of the Negro and Puerto Rican population of Manhattan County, and gave this -- made the Seventeenth a 95% all-white district, in other words, the population of the Seventeenth that is Negro and Puerto Rican this approximately 5% of the total.

The Eighteenth, they excluded 99.5% of the Island's whites and this district is 86% -- 86.3% Negro and Puerto Ricans.

Interestingly enough, as we'll show later, the population as I said before of one quarter of the Island would be a million -- it would be 424,000.

But the Seventeenth is only 382,000, 43,000 short of the average of one quarter from the district.

Judge Moore below compared it with the statewide average but when we're looking for the inference for a racial discrimination as opposed to underrepresentation and overrepresentation; I submit the comparison as to the other districts on the Island.

So that it is 12% smaller than the 18th.

It's 14% smaller than the 20th and 15.4% smaller in population than the 19th.

As a result, the whites in here have their vote count 12-15% more than the votes of 97% of the Negroes and Puerto Ricans in those other three districts.

Justice John M. Harlan: I didn't -- I didn't quite follow you to your mathematical conclusion.

Mr. Justin N. Feldman: Well sir, Seventeenth District --

Justice John M. Harlan: Yes.

Mr. Justin N. Feldman: -- which excludes all but 3% of the Island's Negroes and Puerto Ricans, is 12% smaller than the 18th.

It is 14% smaller than the 20th and 15.4% smaller than the 19th hence, --

Justice Potter Stewart: Now, that per se you're not attacking here.

Mr. Justin N. Feldman: I'm not attacking here --

Justice Potter Stewart: It's only part of the whole picture.

Mr. Justin N. Feldman: It's only as part of a whole picture as to its evidentiary value with respect to -- to the -- the purpose of the statue and not making it principally and underrepresentation and overrepresentation.

Justice Potter Stewart: Those disparities in numbers per se you're not -- you're -- you would say -- you're -- you're not claiming or wouldn't otherwise be constitutionally invalid if there were no racial limit.

Mr. Justin N. Feldman: If there were no racial -- if there were no racial considerations here sir, we wouldn't be here.

Justice Potter Stewart: That's my understanding.

Justice John M. Harlan: Is it smaller than New York population?

Mr. Justin N. Feldman: In terms of population, 382,000 against 445,000.

Justice John M. Harlan: (Inaudible)

Mr. Justin N. Feldman: Yes, Mr. Justice.

Justice John M. Harlan: (Inaudible)

Mr. Justin N. Feldman: Well, I say that as I develop the racial considerations in these turns and twists, I suggest that when I'm finished if it's not raised, what is it?

Justice John M. Harlan: (Inaudible) disproportion in numbers.

Mr. Justin N. Feldman: That is correct sir.

The disproportion in numbers is more evidentiary than anything else although it -- it does exist.

If this Court were to find at some future date that there must be a closer relationship than X% for purposes of equal protection, this might -- well might not fall within it, I don't know.

Anyway, this is what they did.

Now, of course it's also interesting to know that the district, the old Seventeenth had had only 260,000 people.

The new Seventeenth, 182,000.

The old Seventeenth had 6.6% of Negroes and Puerto Ricans and now by the addition of 122,000 people, the percentage dropped 16% from 6.6 to 5.1 but at my --

Justice Potter Stewart: But at my (Inaudible) -- my (Inaudible) if it's right there was a -- an absolute gain in numbers of --

Mr. Justin N. Feldman: Well, There was an absolute gain --

Justice Potter Stewart: -- of Negroes and non-whites and Puerto Ricans.

Mr. Justin N. Feldman: -- of 1000 people in that when they had 260,000 in the district, there were 9000 Negroes and Puerto Ricans when there are 382,000 people, there are 10,000 Negroes.

Justice Potter Stewart: So that actually the number of Negroes and Puerto Ricans did increase when they -- when they withdrew the boundaries.

Mr. Justin N. Feldman: Yes.

That you couldn't -- you couldn't add 122,000 people in this Island where 40% of them are Negroes and Puerto Ricans unless you added them the way they did with that as to increase -- not to increase at all, just would've been and physically arithmetically impossible.

Now, as I say sir, how did they do this?

First of all, they did it by jigsawing the lines and ending up with an undersized district because as our proof show, had they expanded this to the north so as to bring it up to the average for the Island of approximately 425,000 people, they would've tripled the Negroes and Puerto Ricans in the district.

And had they expanded it to the south, they would've doubled the Negroes and Puerto Ricans.

Justice Potter Stewart: Out in the southern there, there you get into Mott Street and so and Chinatown, don't you?

Mr. Justin N. Feldman: Chinatown is -- is much south of that sir.

They would've reached -- they would've not have gone as far as Chinatown before they would have had 425,000.

Justice Potter Stewart: Thank you.

Mr. Justin N. Feldman: I turn now here to a chart which is Exhibit 4A in the record and I reprinted in the -- in the record which was prepared for apportion of the Island and was prepared on the basis of the census tracts.

The census tracts having been obviously available to the legislature because this is the only way on which you can compute population and the population is -- of each district is specifically set forth in the statute.

And which had the census tracts here as indicated by the key on the map.

And you can quickly see sir that -- if the Court please, that was 75 to 100% Negro and Puerto Rican areas up for along 110th Street.

What would've happened had they expanded it?

Had they expanded it to the point of 425,000 people to the north?

As I say, the record shows they would've tripled the number of Negroes and Puerto Ricans in the district and had they done the same to the south?

They would've approximately doubled the Negroes and Puerto Ricans in the district.

And had they expanded it on the West, you can see what the population composition, there is.

Justice Potter Stewart: Instead of going down to the south on the -- in the western half reading vertically.

Mr. Justin N. Feldman: Well, the attorney general has made a point of variability to come down to --

Justice Potter Stewart: That's right.

Mr. Justin N. Feldman: There are two problems with that coming down to -- it wouldn't -- wouldn't have added any people because it's a warehouse an area with no population and the other is, it would've created a dainty paradox through the -- through the 19th which comes around below.

Yes, they might've taken in one or two blocks but it wouldn't have made any difference in terms of -- of total population but still would've been an undersized district.

The Attorney General, interestingly enough, has made his brief much of the fact than he did in the trial court that they didn't take in this little area here which is predominantly white.

This sort of what we have called the "buffer zone" because all the pressure has been south from the north and not the other way ethnically but on further investigation, we found that by a resolution of the Board of Estimate of the City of New York adopted in 1959, most of these areas was to be condensed for a federally assisted public housing project.

I think Exhibit 7 of the record shows approximately five or six square blocks per public housing project of the type which traditionally is 74 to 75% Negro and Puerto Ricans, so they were aware of what was going to happen to this area, they knew that.

Similarly, in preparing this, they cut some census -- they cut through census tracts.

They cut through approximately 12 census tracts in going through these borders rather than follow the outline to the census tracts.

And on the analysis of the areas they cut, we tried that on the border between the 17th and the 18th, there are two cut census tracts and the percentage of Negroes and Puerto Ricans in the excluded portion is 22.6%.

And the percentage of Negroes and Puerto Ricans in the included portion is 4.5% and that absolute numbers approximately 4 to 1 excluded as against included within the particular census tracts.

On the -- they had to go quite a bit of trouble with cuts -- figures computed census tracts.

Somebody did, I don't know who in the legislature did but someone did.

And similarly, on the southern border between the -- or the border between the 17th and the 19th, they cut 10 census tracts and in that instance, the percentage inside the 17th is approximately 11% Negroes and Puerto Ricans, outside the 17th approximately 20% Negroes and Puerto Ricans and almost 3-to-1 or two -- two and a half to one in absolute numbers.

Justice Arthur J. Goldberg: Will you explain narrowly what census tracts here, if you don't mind?

Mr. Justin N. Feldman: The census tract here is merely an arbitrary counting unit determined by the -- for the convenience by the Census Bureau.

But anything -- the only way one -- it's the only way they count and when you want the population figures, you quick -- and quickly you go to the census tracts.

When you want to refine them, you can go to the enumeration districts and get the breakdowns of the census tracts but if you're breaking up the Island's --

Justice Arthur J. Goldberg: It's artificial.

Mr. Justin N. Feldman: It's artificial.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Justin N. Feldman: It's artificial but since the -- the legislature did say in joint legislative committee document print -- reprinted in Exhibit B of our jurisdictional statement that -- that the census figures for 1960 were used.

That the decennial census figures were used, this is the way that the decennial census figures are expressed and I think we can assume that the legislature had all appropriated information before.

But the fact is on these cut census tracts, what we -- the refinements end up showing that 70% of the non-white population in the cut tracts was excluded in the process of cutting the tracts, only 30% was included.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Justin N. Feldman: Not at all sir.

Merely that the population is the -- is the basis.

This is how you determine the population of where you -- you will wiggle and squiggle around by use of a census tract, there's no other way you can do it.

Similarly, on the whole tracts, they are generally -- well, I think in every instance except one.

The number or the percentage is higher on the outside than it is on the inside.

The only place where that is not true was in the two census tracts of 34th Street to 42nd Street and the 6th and 8th Avenue where the percentage inside is higher than the percentage outside -- but this is a very sparsely populated area.

And the total number inside as against outside is about 8-to-1 outside.

I think there are 191 inside and about a thousand or so Negroes and Puerto Ricans outside.

The only one place where they left was only very little explanation, they left the second tract to the high -- Negro and Puerto Rican census tracts inside that little triangle down here around Peter coop -- Cooper, I guess it is of Cooper Union, excuse me.

But there are only a thousand people in the area so there're only 300 Negroes and Puerto Ricans.

Tract C, T-R-A-C-T.

Justice Byron R. White: Is it a geographical unit?

Mr. Justin N. Feldman: The geographical unit determined arbitrarily by the Bureau of the Census for purposes --

Justice Byron R. White: They differ in size?

Mr. Justin N. Feldman: Yes, they differ in size.

Justice Byron R. White: What were the criteria?

Mr. Justin N. Feldman: I don't know what the Census Bureau's criteria in this sir.

In most instances as you can see in the City of New York, they are either six or eight square blocks.

Justice Byron R. White: They are substantially the area of the same size?

Mr. Justin N. Feldman: Substantially, it's the same size of area, yes sir.

Now, so we see what they did with the cut tracts and so forth.

We also look and see what they did on these -- in its portable loops and you take this with the Stuyvesant County, for instance this one's interesting.

Here we have a district with only 382,000 people, well undersized.

Here is an area adjacent containing and -- and logically contiguous to it, containing 6800 people with only of what the district is up to 39 -- 390,000 but this area is 12.2% Negro and Puerto Rican and this area is excluded for this little -- otherwise, inexplicable loop.

And in every one of these loops as I said, you'll find that the percentage and number of Negroes and Puerto Ricans outside is much higher that it is inside.

Now sir, --

Justice John M. Harlan: You tried here (Inaudible) in answer to that and see whether you were starting out to discriminate the racial basis, you could do a better job?

Mr. Justin N. Feldman: I -- I have -- have found that absolutely impossible Mr. Justice Harlan to come up with more stark percentages.

We tried several neutral ways and we also tried several discriminatory ways and it is absolutely impossible.

First of all -- you could do it -- excuse me.

You could do it if you made the Seventeenth smaller numerically than it is now.

Yes, if you -- if you made the disparity even greater so that you reduced the size of the Seventeenth --

Justice John M. Harlan: If you exclude --

Mr. Justin N. Feldman: -- to 300,000, you clearly could do it.

Justice John M. Harlan: You exclude in your presentation here whether the families who live in New York knows an amount of tradition with this Seventeenth District as in traditional (Inaudible)

Mr. Justin N. Feldman: Mr. Justice --

Justice John M. Harlan: -- and I suppose the registration figures although I haven't lived in New York for some time, I started the record registration figures which show that the (Inaudible) under the old district.

Mr. Justin N. Feldman: And may I say sir a little further.

Justice John M. Harlan: Otherwise, what I'm suggesting to you and this is the typical case with political (Inaudible)

Mr. Justin N. Feldman: Well, sir one might -- one might thinks so except for some of the decisions that were made.

The court below was obviously troubled by that.

After the silence of the appellees and the failure to introduce evidence, they asked whether we would stipulate as to the political figures and we submitted a memorandum in -- to the Court in response which is not reprinted in the record here but as part of the clerk's original record filed in this Court.

Original record page numbers 516 to 530, which is in the clerk's office, if any of you are interested, in which we maintain first that it was irrelevant for the purposes of our case that the burden, if it were political districting, the burden was on the state to come forward and say so and to sustain it.

And in the face of the proof that we submitted as to racial classification, the strongest possible burden should be placed upon the state to come in and explain it whether it's political or economic or whatever it may be, that there is no way for plaintiffs to show segregation and racial classification except by these numbers and figures.

We can't get behind the heads of the -- the 200 legislators to find what they had in mind but they had available to them, the legislative clerks and the committee clerks who drew these maps.

If they were willing to come in and testify was drawn on political grounds, I -- it may -- we may still argue was unconstitutional but we would have a right to test that hypothesis.

Why is the State of New York entitled to an assumption of constitutionality because it's political whereas if I presented these figures from the State of Mississippi or some other place, I don't think that the question would arise?

Justice John M. Harlan: Well so you probably (Inaudible) to understand one burden of proof, you're attacking the constitutionality of this (Inaudible)

Mr. Justin N. Feldman: Yes sir and I think on the totality of proof, I'd proved it and if they want to come in and show that there was some constitutional basis --

Justice John M. Harlan: (Inaudible)

Mr. Justin N. Feldman: I think I'd proved the case sir and a way with no -- there was no defense on that basis.

I think I proved the case.

But interestingly enough, getting back to that request of stipulation, we furnished there, we said the voting figures -- told the Court we thought the voting figures were irrelevant because voting figures vary from year to year based upon the personalities of the candidates and the issues and also some other factors.

But we did furnished enrollment figures, party affiliation figures and they're on filing the clerk's office and the Stuyvesant Town area is better than 2-to-1 democratic by enrollment and it's higher percentage of a democratic as against republican enrollment than the adjacent area.

The only difference I can find between those two areas is the percentage -- is the percentage variation and race.

And it similarly, you check a lot of these areas where there are exclusions and inclusions.

There's no basis on political affiliation, on political enrollment which is the only true test of political affiliation but I'd submit sir that those are irrelevant to the purposes of this case because the state is unwilling to come forward and say that was the basis.

Justice Hugo L. Black: Has anybody been knocked out of voting by this?

Mr. Justin N. Feldman: Well no one's been knocked out of voting and that you can't go into a voting booth but if I'm a -- a Negro living in -- in this District, the Nineteenth, it takes a lot more votes to elect the congressman than it's done for the right fellow living in the Seventeenth.

Justice Hugo L. Black: Then you -- then you are raising the question of numbers, is that it?

Mr. Justin N. Feldman: Well, numbers in a Fifteenth Amendment sense, sir.

I think there's an abridgment here.

I'm raising the question --

Justice Hugo L. Black: What is the ambiguousness of the discrimination?

Mr. Justin N. Feldman: Racial classification.

Justice Hugo L. Black: Is that all?

What -- how does it hurt?

Mr. Justin N. Feldman: Well, I don't think --

Justice Hugo L. Black: The injury.

Mr. Justin N. Feldman: I think that the deprivation of constitutional rights is harm, sir.

Justice Hugo L. Black: But what --

Mr. Justin N. Feldman: And in this instance, I think -- I agree with Mr. Justice Douglas' statement in Baker against Carr sir that racial classification of voters is a violation of the Fifteenth Amendment and if that's what Gomillion against Lightfoot --

Justice Hugo L. Black: But you mean classifying voters in a particular area because they are with certain color --

Mr. Justin N. Feldman: Correct, sir.

Justice Hugo L. Black: -- abstractly injures them by depriving them of a constitutional right not to be in an area where they're put there because of their color.

Mr. Justin N. Feldman: That is correct, sir.

Justice Hugo L. Black: Is there any other --

Mr. Justin N. Feldman: The other is the fact --

Justice Hugo L. Black: -- anytime as to how there could be any injury?

Mr. Justin N. Feldman: Well, the other is in this instance, the fact that they've been excluded from an area in which the -- the voting power of a person is 15% higher than it is in this area.

Justice Hugo L. Black: Then that's all numbers.

Mr. Justin N. Feldman: That's on numbers but that's an abridgment I maintain of -- of -- of voting power.

Justice William O. Douglas: Well, your first -- your first point is really is about the same as an argument against the separate than equal in the --

Mr. Justin N. Feldman: That is -- that is correct sir and if I may go on with my proof sir, I think I'll also show that they were jammed-in the way which deprive them of -- of representation in other ways as well because we also tested, we also tested this statute by referring to see how it could be drawn.

If you follow from the start of the northern tip of the Island and it's worked this way down until he got the 425,000 and did that again and drew a line -- and did that again and drew a line and those are contained in Exhibits 6A B and C of the record in which we did it in three different ways and there was -- interestingly enough, in every single way, Negroes and Puerto Ricans would constitute a majority approximately 60% of at least one district.

In one of the ways, they would constitute a majority in at least two districts and in the other way while they would constitute a majority in only one district, they would have five to six times the voting strength in representation in all of the other districts.

Justice Arthur J. Goldberg: Mr. Feldman, (Inaudible) is it your argument prior to the legislation of the constitution say that Negroes of New York never (Inaudible)

Mr. Justin N. Feldman: That is correct, sir.

Justice Arthur J. Goldberg: And you would say, did affect (Inaudible) under the law.

Mr. Justin N. Feldman: That is correct sir.

And destroyed their influence in the other districts in the process.

And I might say also is tiny, the possibilities of rival leadership developing.

The possibilities that there may be more than one Negro congressman or more than one spokesman for the Negro community and I submit that may be one of the reasons why we have some interveners in the case.

Justice Hugo L. Black: Would that mean that you can never put -- create a district?

That a -- no one there but colored people if they happen to live there?

Mr. Justin N. Feldman: No sir.

I have -- I advocate neutral lines.

I have not advocated anything but neutral lines and I say if the lines are drawn neutrally and that's the way it falls --

Justice Hugo L. Black: What do you mean by neutrally?

Mr. Justin N. Feldman: That for instance, if using criteria such as geographical boundaries, equal population, geometrical lines, you ended up with a district that was almost all colored, I would not say that this had had violated the Constitution.

But where you make their district larger than the white district in terms of numbers where you go out of your way to -- to -- to weave and turn so that you jam the bulk of them into a district and where you -- you deliberately draw lines or purposefully draw a line, then I say you -- you've violated the Constitution.

When I talk about neutral lines sir, what we did as I've said here for instance Exhibit 6A, we started with the tip of the Island and we counted down and we reached the census tracts with approximately 425,000 people.

Justice Hugo L. Black: Where exactly in the --

Mr. Justin N. Feldman: That point is out the -- at 125th Street and that district -- that district turns out to be 59.1% Negro and Puerto Rican and then for the -- we just drew a -- did the same thing up from the south and we ended up with the district that was 22.3% Negro and Puerto Ricans.

And then we drew a line down here to preserve the concept of Eastside and Westside to some extent that you have in the present district and while this district turned out to be only 9.5% Negro and Puerto Rican, approximately twice what it is in the present 17th.

This district turned out to be -- excuse me, I'm on the wrong map here.

This district -- yes, this district turned out to be 58.9% Negro and Puerto Rican so that you had two districts with an excess of one -- one with 59% Negro and Puerto Rican, the other 58.9% Negro and Puerto Rican and still the 3rd -- the 4th district within quantum was twice the percentage of that -- the present 17th.

Justice Hugo L. Black: When was this law passed?

Mr. Justin N. Feldman: 1961 sir, November of 1961.

Justice Hugo L. Black: What party controlled the legislature that time?

Mr. Justin N. Feldman: The republican parties control the legislature in New York's --

Justice Hugo L. Black: And what had been the votes in this section.

I'm asking this because I've had some experience with this and I've never seen any year as a matter of common knowledge that politics didn't have something to do where one of the parties with more in getting advantage either by concentrating voters of one group in a section to keep them out of other people.

Mr. Justin N. Feldman: Sir.

Justice Hugo L. Black: Well I have -- Vice versa.

Mr. Justin N. Feldman: Let me tell you sir, politics had something to do with it in Gomillion against Lightfoot too, because where you -- where you have competing interests.

Justice Hugo L. Black: You can -- cannot (Voice Overlap)

Mr. Justin N. Feldman: Where you have competing interests, you have different votes.

But let me tell you, sure maybe there's -- there's a -- there's a racial characteristic that I think anybody knowing New York politics --

Justice Hugo L. Black: That time, the politics have nothing to do with Gomillion.

What we found there was and I think properly that this city was cut off that way to keep colored people from voting in the city and depriving them the right to vote entirely.

It wasn't because of two-party fight.

Mr. Justin N. Feldman: I don't think this is because of a two-party fight sir.

We're attacking a district here that's the 18th that is democratic as well as attacking the 17th which is republican.

We say both those lines were drawn wrong because one is an all-Negro District and is an all-white district.

Justice Hugo L. Black: And you'd -- you say the purpose now is what?

Mr. Justin N. Feldman: Is jamming in the race into one -- jamming the Negro race into the 18th so as to provide the maximum number of Negroes and Puerto Ricans in one district and to deprive them of influence in the rest of the county; that was the purpose.

Now, we --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Justin N. Feldman: Well sir this benign code of concept has been -- has been raised here by the -- the interveners and their -- and their answer when they said that that -- this is the reason they wanted to intervene because we're -- well destroy their control of the district and it's been raised by the -- by the state.

First of all, I think this concept of -- of benefit to the community was first eliminated by the Court as a defense to the constitution -- unconstitutionality in Buchanan against Warley, as far back as 1917.

And I've here this -- this concept of benefit to the Negroes argued in every single racial classification case that's come before this Court since.

I don't think that this represents a constitutional theory upon which we can rely at this stage of development of the -- of the law in this field.

Justice Hugo L. Black: How can you rely on Buchanan against Warley in this case?

Mr. Justin N. Feldman: Well --

Justice Hugo L. Black: That was the case where the headed law -- law passed which prohibited colored people from owning a property of certain section.

It was an invidious discrimination.

Mr. Justin N. Feldman: Well I'm relying only --

Justice Hugo L. Black: In credo.

Mr. Justin N. Feldman: I'm relying on the -- I'm relying sir on -- on that -- well I think this hurt them too and I'll tell you, I think this hurt them too.

As a matter of fact, as I say, not only is the benign or benevolent approach not -- in my judgment, not a good defense.

It's one which the state did deny the plea to approve but they've now come into this Court contending but it's against the fact.

Justice Hugo L. Black: Well, I wasn't talking about benign, I just want to know what it does to it?

Mr. Justin N. Feldman: It hurts them sir because it puts all of their influence in one district.

It takes 90 -- it takes the both of the -- of the Negroes and Puerto Ricans in Manhattan and it puts them in the 18th Congressional District.

It destroyed their ability to influence the election of a congressman or what he may do in the 17th --

Justice Hugo L. Black: And another district.

Mr. Justin N. Feldman: Right and it dilutes their ability to influence congressmen in the two other districts.

If those lines had not been drawn --

Justice Hugo L. Black: Your argument is for more districts, isn't it, instead of --

Mr. Justin N. Feldman: No sir.

My argument -- my argument is to permit the natural result of whatever population dispersal there may be on that Island to come about without drawing the lines so as to herd the both of the Negroes and Puerto Ricans into one district and to exclude them in another.

Justice Hugo L. Black: Well, you're talking (Voice Overlap) passed the law, which was brought and delivered in a certain district.

Mr. Justin N. Feldman: Well, they haven't passed a law that requires them to live in certain district.

They've passed a law which requires them to vote in a certain district by drawing the -- these crooked lines.

Justice Hugo L. Black: I don't see the really crooked lines and reapportionments.

Mr. Justin N. Feldman: Well, that's true sir but where the -- where the purpose and effect of these crooked lines is to create a racial classification, I think it's unconstitutional in the lines of cases that this Court has developed.

And I -- I think that what's happened here is that the -- the -- the state has come in with this benign quote of theory which is I say is contrary to the fact.

They've also come in with a -- with a -- an interesting theory on the standard of proof that's required.

They say they came in with commendable candor of course, although no defense below.

They came in with commendable candor to this Court in its brief and they said that, number one, they're entitled to -- to district on a racial basis.

They're entitled to do so.

And number two they said, "You can't avoid doing so."

And number three they said, "Even if this Court doesn't agree with those concepts, all we found is the corpse, the footprints and the fingerprints.

We don't have an eyewitness, we don't have anybody to say this is what they deliberately did."

And although Mr. Galt argued very persuasively that motive was irrelevant in the WNCA case, he argues that motive is -- is necessary as per element of proof.

Justice Hugo L. Black: But may I suggest that there happen to be some places in this country where nothing could happen better for the colored people into the district where they could their strength together.

Mr. Justin N. Feldman: Well sir I -- I -- I think that if -- if the state did it for that reason, then they should have the burden of proof.

In other words, if we have proved that it was done on a racial basis and the state says, "Yes, it was done on a racial basis but it was done for the benefit of the minority race."

Then where racial classifications are going to creep into the law, the burden of proof should shift to them and the strongest standard possible should be imposed upon them to show that this was in fact the case.

Justice Potter Stewart: But if you're right in your basic hypothesis, that would be equally unconstitutional, wouldn't it?

No matter how beneficent the purpose --

Mr. Justin N. Feldman: I --

Justice Potter Stewart: The classification based on race and race alone?

Mr. Justin N. Feldman: I think it would be sir but Mr. Justice Black said he though that it would be -- it would be a useful notion.

I don't know -- maybe he --

Justice Hugo L. Black: I said in some places.

Mr. Justin N. Feldman: Well, I don't know where there was his intention to say it would be constitutional.

Justice Potter Stewart: But -- but you don't say it's constitutional.

Mr. Justin N. Feldman: I do not say it's constitutional.

Justice Hugo L. Black: I would say that your argument was, it seem to me to set down to be such a terrible thing to have their influence that concentrates in one district and I happen to think of some, where that would be wonderful thing for them.

Mr. Justin N. Feldman: Well, it might well be sir, I still think it would be unconstitutional.

Justice Hugo L. Black: Well, might be, I didn't say that.

Mr. Justin N. Feldman: They've -- they have -- they have come in where they said, "We don't have the eyewitnesses," as I said.

And this is sort of more or less the vice of decisive opinion below.

We feel that Judge Murphy in his dissent below is absolutely right when he said, "Having proved all of the things we proved, what more need plaintiffs prove?"

That we have proved the prima facie case and we had proved subtle discrimination in an urban area.

But Judge Feinberg in the controlling opinion said that "The burden of proof on plaintiffs in a racial case is a very difficult burden because we might -- must not only show that the -- a reasonable inference of racial classification.

And we must show that it's the only available inference."

And he went on to say that he could infer from looking at these maps that the classification was made on economic and social grounds."

There was no basis in the record, there was nothing in the record to testify to the existence of economic and social differences dictating the -- the lines of these districts.

And I submit, if Your Honor please, that I know of no racial classification situation where you won't find economic and social differences.

If economic and social difference that would justify racial -- racial classification, I think we would be walking all the way back not until Mr. Justice Harlan's dissent in Plessy against Ferguson but to the majority opinion.

Now, with the permission of the Court here, I'd like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Galt.

Argument of Irving Galt

Mr. Irving Galt: Mr. Chief Justice and may it please the Court.

In our presentation, we shall proceed principally along two lines.

First and this in a great degree will be responsive to what Mr. Feldman had been doing and saying using a visual method as well, we will cover some of the principal aspects of the evidence in the record which was before the District Court and second, we will go to the legal proposition.

The question of the legal insufficiency of the plaintiff's complaint and if some time remains, and if I may, that second argument will be tied in if the responsibility is there with references to the somewhat related subjects of justiciability and lack of equity.

I think it might be well if I were to proceed first Your Honors to the question of proof and the burden of proof.

And I must say I was quite intrigued by some of the theories of burden of proof that were expected -- that were expounded here a moment ago and of some of the concepts of when it is and under what circumstances the state must proceed with proof in order to defend what we will show in this perfectly common place, redistricting; something which as we shall see in a moment, raises no suspicion of unconstitutionality whatsoever.

But first, in order to address myself to that issue, I would like to dispel, if I can, two notions which have been fomented by the appellants in this case.

Your Honors undoubtedly in the course of Mr. Feldman's arguments that it was unclear to say the least just what the theory of appellant's proof and burden of proof might be.

But as we -- best we've been able to gather it from a reading of the briefs and from listening to Mr. Feldman a few moments ago, it ranges all the way from doing nothing at all but making a statistical showing of disparity to, if I may recall, Mr. Feldman's phrase, "Twisting the legislature, twisting and turning deliberately to create on the one hand as lily white a district as possible and on the other hand, as thoroughly saturated the Negro and Puerto Rican district as possible."

So I presume that first, I must dispose if I can of the argument that even unintentional segregation is constitutionally prohibited in -- in a congressional districting situation of this kind and for that reason that I mere showing of considerable disparity and of course we're assuming arguendo for the purpose of the discussion of the fact and the proof.

We're assuming arguendo under this section of our argument that they have stated a colorable claim under the Constitution.

But they -- they feel that all they have to do is show this mere disparity in ethnic composition and that will be sufficient to shift the burden of proof to the state and there are many, many reasons why this undoubtedly must be wrong.

In the first place, I think this Court well knows from experience that there's a tendency on the part of people in certain ethnic groups to settle in large cities in certain areas and these reasons have a great variety, a great range of reasons for this.

It may range all the way from the desire to live amongst the other members of the same ethnic group and it can go all the way to such things as discrimination and housing but whatever the reasons and whatever the degree of those reasons, the fact is and it's a real fact of life and certainly a fact of life in the Island of Manhattan as it is in many other cities of the United States that people tend to create to -- to gather very often and reside very often in certain ethnic concentrations in the neighborhood if you will.

And in this particular case, what we're dealing with mostly was citing Eastside of Manhattan, what counsel has been pleased to refer to as the lily white district.

We were also dealing with that well-known area called Harlem with approximately a quarter of the Island's 1,700,000 population, one of the greatest ethnic concentrations and even in New York City area and in the United States.

Now, this as I say only reflects a common place, this congressional districting and it seems to me rather ironic that the appellants have relied and that Judge Murphy, the dissenting judge below, went right along reading the case the same way.

The Hernandez case apparently is that on which appellants relied for the first part of this curious theory of burden of proof.

And Your Honors well remember how totally different the Hernandez case was.

There was a case where over a period of I think 25 years or generation or so, Mexicans were not able -- those of Mexican descent and origin rather, I don't mean Mexican citizens.

American citizens of Mexican descent were never to be found on any jury panel in the State of Texas and this of course is a very unique situation.

Could one say that there are no people of Mexican heritage who would be qualified for jury service in the State of Texas or any other state?

This was so unique, so uncommon, so extraordinary situation but of course the burden would be upon the state to go forward and explain this tremendous anomaly.

That's an entirely different case.

Here you had a case which if it's akin to anything in that respect might much more be akin to the case, for example, of a Negro tried in a criminal case let's say a capital case and not a Negro on that particular jury.

Well now, I don't think I need to label the point that nobody in the United States, white, Negro or otherwise can claim that he is entitled in a particular jury under particular circumstances to have a juryman of his own ethnic background or jurymen of his own ethnic background on the particular panel or on -- in the particular case.

That's quite a far cry from Hernandez but certainly, Hernandez which was relied upon by Mr. Feldman so heavily and by Judge Murphy as his opinion will show offers anything but support for the curious theory that Mr. Feldman advances.

Now, isn't it a logical culmination of a theory such as suggested by Mr. Feldman, isn't it inevitable that if we were to adopt that theory, wouldn't we be lead in the direction of having to mix the races in certain proportions in congressional districts?

For instance, there are 37.5%, maybe it's 38% Negroes and Puerto Ricans residents in the Island of Manhattan.

And if were to carry out logically the -- the -- the theories that are being expounded here a few moments ago by Mr. Feldman, we would have to think in terms of -- of -- of equalizing the racial in all four of them -- this shows only two of the districts but on all four of Manhattan's districts, we'd have districts vis-à-vis one another which are roughly 37 -- 38% Negro, Puerto Rican if we were to follow that its logical culmination.

And although it may not be strictly relevant to the question of burden of proof, I think this might be a good point at which to get into the subject of -- and I mention as is this, "A fallacy of speaking of segregation in the context of congressional districting."

Now, there are no cases extent and I think that will be agreed to that say, "that this is an angle in a congressional districting case.

It's necessary in congressional districting to classify every time a districting is going to be made and I don't care what the motive, what the criteria, no matter what the reason.

Whenever a congressional districting is done, the result inevitably is going to be either where you have a law at neighborhood by column with a tremendous concentration of one ethnic -- or one or two ethnic groups.

The result inevitably will be either to concentrate them at one district or to divide and disperse them among two or more districts, it can't happen any other way.

And no matter what lines is drawn, this is the inevitably and variable result.

Now, school cases in which the term "segregation" is used so extensibly.

Of course, in the root case, in the original cases under the school segregation situation going back 10 years of whereabouts to the opinion of the Chief Justice in the Brown case.

In that case, you had state action exemplified by statutes simply setting up segregated Negroes schools and segregated white schools and this was struck down of course in the Brown case and there, the state statutes had made segregation mandatory on the Brown integration was made mandatory and the central constitutional fact there of course was the inadequacy of segregated education, a touchstone, if you please, by which you can measure a standard -- a constitutional standard to be applied in a situation of that sort and to understand the proper use of the word “segregation” in the context of that kind of a district.

Because a school district is a districting situation just as is a congressional district situation in the sense that lines must be drawn.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: Which one was that, Your Honor?

Justice Arthur J. Goldberg: Suppose in the (Inaudible)

Mr. Irving Galt: With a district so that in each instance, the concentration of 8th became a separate district though 8th -- I mis --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Irving Galt: From a constitutional standpoint?

Justice Arthur J. Goldberg: Yes.

Mr. Irving Galt: I would say yes.

I -- I don't believe that there's any such situation ever likely or imminent in the state of New York but if we're talking constitutionally, yes because we do not have the same constitutional or -- or the same standards that we can readily apply it here as we do in school cases.

Now, I wanted to show Mr. Justice Goldberg, if I might, that there's all -- a world of difference in the case.

Now, these were impermissible objectives, these ideas of having white schools, and Negro schools, what in congressional districting, I submit and I think it's beyond any argument that there is no such set of fact as the inadequacy for instance of segregated education.

This may be in the sense anticipating the argument that I hope later to make on the law but I touched on it briefly because of the inappropriate use of the word "segregation" here.

But after the Brown case, we began to have some new phenomenon, when -- when segregation was caused for instance by school district lines in the context of existing neighborhoods and we -- existing racial neighborhood.

And schools persisted in their segregation not because of any plan and deliberate design but because of the neighborhood concept, problems arose just the same.

And we have mentioned in our brief at several places a very interesting decision which was made by Judge Dooling of the Eastern District Court of New York in the Branche case, rather recently.

In fact, Mr. Sandifer was a counsel, one of the counsels in that case.

And there, Mr. -- there, Judge Dooling held at the mere existence of de facto segregation was unconstitutional and there's a good reason that the term “segregation” can be applied in that sort of case because there, it's possible to isolate what is constitutionally desirable.

Justice Arthur J. Goldberg: (Inaudible) political preservation?

Mr. Irving Galt: Political?

Justice Arthur J. Goldberg: Yes, political preservation (Inaudible)

Mr. Irving Galt: Well now, Mr. Justice Goldberg, when we're dealing with congressional districting, we're certainly dealing with large groups of people.

We're not dealing with individuals as we are at jury box cases or in seating in a court or in bus transportation, things of that sort.

We're not dealing with individuals.

We are dealing with a large group of people and it may be true that I forget the plaintiff's name, Mrs. Wright, I think is the first plaintiff.

Mrs. Wright or Ms. Wright as the case might be.

Ms. Wright may have some sort of a desire along the lines that Your Honor mentioned.

But the fact is that from a constitutional standpoint, when it's necessary for a legislature to deal with these large numbers of people, we're not impinging on individual rights and as Mr. Justice Black indicated in his questioning of Mr. Feldman a few moments back, there is here an entirely different situation and that is the question if -- if need be, who is to determine whether from a -- from a judicial standpoint, who is to determine whether a minority group, Negroes, Puerto Ricans or any other minority groups for that matter are better off when they concentrated one district or dispersed?

And as a matter of fact, Mr. Justice Black began to suggest in his questions.

Several very good reasons that easily could be elaborated upon why it might be a very excellent idea for power to be concentrated for the political power of a minority group in congressional districting and considering the functions of a single method district system, it might very well be a very idea if it concentrates that political power there.

But we are not weighing the relative merits of these two opposite concepts.

What we are doing instead, Mr. Justice Goldberg is first, before even getting in to all the specifics of the district to show the great difference, for instance, between school districting cases which are after all in a sense districting cases and congressional districting cases, there is all the difference in the world and this makes all the difference in the constitutional result and in the burden of proof and in everything else.

But there in the school case as you can apply the term “segregation” because certainly, it's possible as I was saying just before to isolate what is constitutionally desirable.

And the only direction in which you can move and have to touch on that, you have the desideratum, is in the direction of integration, that's clear in the school cases but --

Justice William J. Brennan: I gather that your argument here is even they (Inaudible)

Mr. Irving Galt: Right.

Very much so, Mr. Justice Brennan, that's exactly so.

But first, we're going to establish if we can and I think that this record does establish it and all the applicable principles will show it that even under any theory of their own purely from a standpoint of quantum of proof, all that sort of thing, they've made no case in any event.

Not only as a matter of law but as a matter of fact.

Justice Byron R. White: You have the cases that are decided (Inaudible)

Mr. Irving Galt: I would -- I would say that they're from a constitutional point of view, yes.

But I would not -- I -- as I say, this is such a farfetched example.

I see no -- I see no practical possibilities of that.

However, I would say that if such a thing were conceivable in the State of New York, I would say that from a constitutional standpoint, it would not be unconstitutional.

Now, in -- in congressional districting, the term "segregation" means what?

It can only mean one thing, it means you -- they must disperse them and are the -- or you must concentrate them among several districts and without elaborating on that --

Chief Justice Earl Warren: We'll recess now, Mr. --

Print this transcript Transcript: 

Argument of Irving Galt

Chief Justice Earl Warren: Mr. Galt.

Mr. Irving Galt: Thank you, Mr. Chief Justice.

May it please the Court.

Now, another singular argument of the appellants as I see it and this is an extremely intriguing too, they suggest that the burden shifts to the state contrary to the normal principles applicable in cases because this is a civil liberties rather than an economic regulation case.

Now, I submit that that's plainly wrong.

One cannot read for instance the McGowan case without realizing that this is just bad law, that is not so.

The McGowan case illustrates it very clearly and another interesting aspect of this is that if it were true that the burden would shift on a showing, such as they have made, the -- we would be moving in the direction of requiring a proper proportionate mixture of the races in the various districts as I've noticed be -- as I've noted before, and any district would be suspect, constitutionally suspect when it didn't have the same racial proportions as its neighbor, and therefore, the state would have to move, as I said, in this direction of a proper mix, and I think that this can be summed up very quickly.

The point is they had to show at the very, very least an absence of other -- any other substantial purpose for the redistricting.

In other words, they had to show that race was a more likely basis for the district lines than the other and much more usual basis of districting, and I would suppose --

Justice Potter Stewart: They didn't -- they have to show that race, I don't mean I show by evidence, so and so which could of course be an inference of circumstantial evidence but didn't they have to show that under your view that race was the only basis.

Mr. Irving Galt: Oh yes, under their view.

Justice Potter Stewart: Under their view.

Mr. Irving Galt: As a matter of fact I would say that the -- but the point is that they did not even show and we'll establish this even further as we refer to the specifics.

They didn't even show by any stretch of the imagination.

They fell far short of showing that race was the basis for this districting.

And I -- I would suppose that the only way they could show what I've just alluded to, that is that race was a more likely basis, is to demonstrate that the state went about this in such a determined, persistent way to borrow Mr. Feldman's own phrase, twisting and turning in and out, a ferreting out of a cluster of a minority here, a block of the minority there in a -- in what might enormous be called a paranoid tendency to see to it that these two sharply contrasting districts, Lily White and all Negro Puerto Rican, are setup side by side.

And I -- I will show that they are far, far from presenting anything of a case in that regard.

Now, I say they failed to present the prima facie case on the facts here and they relied on four particular avenues of proof and they were illustrating that in a sense when Mr. Feldman was pointing to the map and going around boundary lines and that sort of thing, and the first of the four things that they relied on and they failed and failed utterly in all four, the first of these four, and we'd gone over to -- gone over to some extent and I won't dwell upon it, is the sharp disparity between the districts in the way of a racial concentration and all that this does as I pointed out before to reflect the tendency of minorities.

They live together and only one thing in this connection might be of special interest and that is the hypotheticals to which the appellants referred both of the trials below and to some extent here.

First, they had in their proof before the statutory court.

They were allowed to testify the hypothetical expansions of the 17th District and one of these expansions which involved locking Stuyvesant town, that would be this end so that's all right.

The Stuyvesant town would be the area in here Your Honors.

I think this map is the one which you can most easily see, I think it will suffice for our purposes.

The Stuyvesant town additionally in over here, this was one expansion, if this would drop from the district, the western border strait and if the districts were expanded north in Behala, this was one of the hypotheticals, and interestingly enough, what did the 17th District come up with in the way of a percentage of Negroes and Puerto Ricans?

8. -- 13.8 in comparison to the present 5.1. And again, on another -- on another change of boundaries to enlarge the 17th District, what is the percentage this time?

8.5. Merely driving home harder and harder, the fact that any way you do it, it still comes out that if you're anywhere in this neighborhood and you're concentrating in -- more or less in concentrating the group that remains in it, these are the kind of percentages with some variation that you're going to have.

And then there are other hypotheses and I won't -- I won't show you the hypothetical -- the three hypotheses which the plaintiff was referring to and pointing to earlier, Your Honors will recollect them various ways of dividing the county north and south, east and west in four or five permutations or combinations in this sort of second guessing the legislature game.

I submit that we could easily in a county like New York give Your Honors a thousand of them.

I don't see the point to it, but I do see one point which I think in the appellant's own hypothesis will be of interest to Your Honors and that is again, using all these criteria which of course, as Your Honors pointed out during Mr. Feldman's own argument are not legal criteria sense of track which are purely arbitrary.

In the record, you will define them as arbitrary things.

You will find that a enumeration districts were arbitrarily done is not the senses.

It's not the United States senses what does congressional redistricting, it's the New York state legislature but coming back to these hypothetical districts, it's very interesting that in one of the hypothetical districting -- districts, I think its -- exhibits 6 (b).

They have a percentage of 9.5, a little less than twice the present percentage of Negroes and Puerto Ricans, a very negligible percentage when we're viewing it in that context and even though Mr. Feldman may say that this end result doesn't matter, I simply must wonder and I confess that I do but what all the shooting is about because if this were to be an exercise in futility, if by some peculiar formula, the New York legislature could go about it or were to go about at Mr. Feldman's way that came up the same way, evidently he'd be perfectly satisfied and I don't know what we're doing in court if that be the case.

However, the interesting thing is that even their hypotheticals are pretty close to the existing situation in some cases.

Now, they said in their argument and this is where Mr. Feldman was performing surgery, he was talking about the scalpel that the New York legislature uses and I submit that I've got only one thing out of that, and that is that the New York legislature even surgically speaking, as Mr. Justice Harlan pointed out, could well have done a much, much better job but let's take the flat statement that they make.

The 17th District could not possibly be expanded or straightened without altering its racial homogeneity.

Well, that's not even borne out by the record.

For instance, let me point out this to Your Honors, if I may, and if there's any slight inaccuracy of my recollection of my figures, I'm sure I'll be swiftly corrected.

But, Mr. Feldman pointed to this section because this was a -- this section just (Inaudible) of the new 17th District line, the 1961 newly created line, and anticipating our argument and recalling of course some of the skirmishing in the court below, Mr. Feldman was quick to point out that even though this has a very low concentration of Negroes in this -- in this particular portion outside of the 17th District.

And even though it's a highly concentrated wide area, it was not included in the 17th District and why said Mr. Feldman when it would so obvious if he used his own expression, the New York legislature were twisting and turning and using the scope of the such devastating effect, why then would they leave this area here, and I submit that Mr. Feldman hasn't answered.

In the first place, the reference to a housing project; to begin with, the housing project is only in this track, the smaller track here between 93rd and 95th Street east of First Avenue at -- in this direction but this other track alone without reference to what's left over in this track has something like 7,500 people.

The entire track I believe is 10,000 in sum -- 10,000 to 11 in that neighborhood and then Mr. Feldman managed and produced a letter in the court below while we're in the process of the closing arguments, he got a letter from the Board of Estimate which is in the record.

I think it's in Exhibit 7, but this letter said that in 1959, a resolution for a housing project was passed between 93rd and 95th Street.

And that at some date, not specified in the letter, and this letter was written in August of 1962, the end of the month when we were concluding the trial of this very case, at some unspecified date a tentative expansion of two blocks and the 93rd to 91st but still in the same area it was planted.

Now, I submit, that beyond any and all possibility, the legislature very easily if it were bent on what Mr. Feldman has pictured as the senator's purpose very easily could and would have put this in.

If it were exhibiting this paranoid tendency to ferret out here and ferret out there, to include here and to exclude there, this is the most obvious thing that they could have done.

Now, in Stuyvesant town; Stuyvesant town was added; of course the district has to be enlarged.

The only districts in Manhattan had to be enlarged.

They were to be 43 districts -- 41 districts instead of 43.

New York County had to have four districts instead of six and this was one single project right down here at the southern -- southeastern portion which -- and right up here is Peter Cooper, already in the district.

When Mr. Feldman mentioned it, I don't think that was made clear to the Court but Peter Cooper and I think most of Your Honors may -- maybe familiar, have seen physically this thing Peter Cooper and Stuyvesant town are almost indistinguishable to the eye when one goes by even a native of New Yorker like myself.

I doubt I'd like to tell when I left Peter Cooper and when I've arrived at Stuyvesant town.

When I go buy in a car, I do not know the difference and that was added on.

Now, let's take some of these -- these border track situations, the southern border.

There are many tracks fall around, I won't be able to get them all and time won't permit it but I think by a few illustrations, it should be fairly simple and clear to show that by no means that the New York legislature do the efficient surgery which Mr. Feldman was so picturesquely describing to the Court not to many in its regard.

But over here, this area right here, Mr. Feldman dismissed this area rather summarily I thought and the actual figures are 6,862 with a percentage of 12.2 Negro and Puerto Rican, making a total of about I think, 837.

And the evidence shows at page 88 of the record, this would have been added and the white population would have been increased and even me I could tell going around this district.

For instance, let's take south of west four and west third of this area which again, Mr. Feldman rather lightly dismissed.

In the area are 3,000 -- there are 1,062, no.

Below this area, 3,000 to 3,500 people according to the testimony which was at the -- at page 69 of the record and there is 10 to 15% concentration in the area, it's another area which we went at.

And what explained this little triangular area if the chairman of New York State Legislature with this paranoid bent of mind so were destructively set on creating purely equal districts of an opposite racial characteristics.

Why leave this pocket?

The figures for this pocket are 1,062 people of which approximately 375, 35.9% and maybe 380 -- 365 but approximately that number of Negroes and Puerto Ricans in this area and we can see that going all around.

Some of these western border situations are also interesting.

One can look visually at this presentation of Mr. Feldman on this exhibit and see nearly from the coloring on the track -- on the census tracks of what the situation was that Mr. Feldman found it necessary to go with the such shades of differences at the -- percentage difference in the same overall percentage tracks on one side of the other.

We can reverse that if we want to go up to, for instance, 62nd to 66th Street.

I don't know exactly where that is here but it's somewhere -- must be somewhere along here.

Mr. Mahoney points through that this is it.

You can tell by the coloration of the tracks.

In this area, you will find 149 on a 16.6 percentage inside, a 149 inside the district and only seven on a 7.8 percentage outside the district.

So what do Mr. Feldman's elaborate travelogue and elaborate trips around the borders of the district show?

It only shows that if you hold it up, the more careful analytical inspection, you are much more likely to find the opposite than in any other way.

Now, and I just want to add one more thing to this matter of expansion.

This -- this whole thing is absurd.

It seems to me the 17th is not underpopulated.

Let me make it very clear to the Court that New York voluntary and without any requirement of law, voluntarily adhered to withstand it in its Congressional Districts and I will say, without fear of contradiction that among the large states at least that is the best in that regard that maybe in the ban among all states, it certainly close to it among all 50, but New York voluntarily adheres to a population variation of 15% from the average district, and these Manhattan districts, the largest, has a variation of 9% from the state average and the smallest, the 17th which we've been discussing so much a variation of about 7%.

And I can't understand the context in which Mr. Feldman uses it, unless he's suggesting and this is a very interesting theory too in itself, unless he's suggesting that somehow there's a constitutional standard by which if you're going to have more population in one district than on another, the one district being Negro or Puerto Rican or some other minority group and the other being white that constitutionally one race must be in the lower population district so that there be not overrepresentation with respect to the other race.

This is all I can gather from the argument because otherwise, what significance these populations have?

New York surely is not being assailed because of its deviation from a population standard and the creation of its Congressional Districts and I can see no other relevance to Mr. Feldman's argument but that.

Now –

Unknown Speaker: (Inaudible)

Mr. Irving Galt: How many districts in New York?

41.

There we're 43 prior to the redistricting.

Unknown Speaker: (Inaudible)

Mr. Irving Galt: I'd -- I would assume that there maybe some that are county lines, but as far as I know, that hasn't been the primary basis.

Certainly, in the Metropolitan area, the county lines have not been the basis.

As a matter of fact, we see today's four districts wholly contained within Manhattan Island, that's the county of New York, and there was a time and this ties into the history of Congressional Districting in New York County and that we'll show again the fallacy of all of Mr. Feldman's assertion.

But there was a time until about 1941 when we have in the records the maps of the 1911 redistricting, the 1917 and some other dates, 1920 something -- I think it was 1922, 1941, 1951 and the present 1961.

But there was a time until at least the 1941 districting and I'm not sure from my own recollection what but that this maybe -- and may have been true likewise of 1941, but there was a time when New York County Congressional Districts spread over the waters to Staten Island, on to the Bronx and all that.

I may not remember the detail but they are in the record and that the county lines were disregarded, so I would assume Mr. Justice Black that congressional -- as far -- from the standpoint of Congressional Districts, I think I'm correct in saying that county lines are not the critical thing.

Unlike –

Unknown Speaker: (Inaudible)

Mr. Irving Galt: In New York?

Unknown Speaker: (Inaudible)

Mr. Irving Galt: Yes, yes.

This will do -- this usually will follow the street.

In fact, I think they do and here again, let me -- pardon?

Unknown Speaker: Ordinarily?

Mr. Irving Galt: Ordinarily in the City of New York and here again, let me make -- pardon?

Unknown Speaker: (Inaudible)

Mr. Irving Galt: Yes and here again, let me make some references.

Mr. Feldman spoke very eloquently about physical boundaries.

Well we know, of course that New York County does not have a lot of rivers running through it, no mountains or anything like that.

We have Central Park.

We have other parks, but obviously and I think every justice of this Court must know it, these are not the important boundaries in New York.

If we want to look into boundaries and criteria like boundaries, anyone of the justices and I'm sure some of the justices of this Court may have done it if we stand up here, I can't quite reach it, at 98th Street, 96th Street here, and Park Avenue, I think this is the juncture here up around the end of the boundary line there and one can look to the northeast and see right across the street from he's standing on Park Avenue of all the squaller in the world.

All the poor neighborhood that you want and just turn slowly around in the other direction and look south and southeast and you'll see a neighborhood of luxury apartments of, apartments of great magnificent -- magnificence.

These are differences that you might see but what significance traffic lights or crossway through fares or anything like that I can't possibly see.

Now, they have relied on the history of the 17th and 18th Districts.

They have said two blocks were prodded up here.

And -- and then in rearranging the district, there wasn't much difference in the step configuration but you'll notice this little portion from the red line to the green line.

Simple explanation, that's Mount Sinai Hospital.

Mount Sinai Hospital now expands this entire distance and the streets, 100th Street that's in the record, one of the plaintiff's own witnesses testified to that.

Now, the street is closed and it's a physical fact, no one will dispute it, though it makes sense to put the hospital in one district than the other.

The total of people in it and I suppose they were mostly residents in terms of people (Inaudible) only 800.

The percentage I don't recall it correctly.

Mr. Feldman will correct me if it's much over 50% Negro or Puerto Rican, I don't believe that it is, and that fact holds the unit as far as Mount Sinai Hospital up there and that border is concerned.

Now, the Stuyvesant Town addition I mentioned before, there was that need for expansion and that -- and I also mentioned that the areas around here, the only significant change is the red line will show us taking in district and why is Mr. Feldman's suspicions about the New York legislature were correct, it didn't go up here and no one will ever be able and successfully to explain, like they put in this and that's the change.

They built on the lines that existed.

Here is the 1951 line, the green line.

And essentially the district added present configuration.

I think too it did very largely in 1941, but doesn't it make sense to build on the same Congressional District lines?

After all, what does a congressman do?

He represents people and people in a certain area have political clubs built.

You have all of these things.

It will -- will a legislature in its right mind tamper with the existing politics of the people in that sense?

There's reason for it and what the legislature did --

Justice Byron R. White: (Inaudible)

Mr. Irving Galt: The green -- the green is 41 or 51.

I beg Your Honor's pardon, 51, I'm sorry.

Justice Byron R. White: (Inaudible)

Mr. Irving Galt: That's to prior for it.

Justice Byron R. White: (Inaudible)

Mr. Irving Galt: If Your Honor please, I don't know but this was the existing border.

There were six districts in New York at the time.

I -- I will say this, the record doesn't show it.

You'll notice that one of the allegations in the complaint is that historically, these districts were bad in the same way.

Repeated efforts were made to do something about it.

New York legislature never did anything but the fact of the matter is that the appellants or the plaintiffs never came forward with an iota of proof about it.

And the record is bare of any suggestion of anything sinister there.

If -- if Mr. Feldman wants to take the position that it's unnecessary to prove it, fine.

We think it's unnecessary to prove it because there isn't anything things to prove anyway but if it's unnecessary to prove it then we can't expect to find in the record any explanation of this particular configuration.

The only thing it does suggest that is perfectly logical to me is that the legislature did a magnifying job in improving the physical contours of the lines.

They now are much more regular than they were before.

Mr. Justice White's question implicitly suggests that and the only thing I could tell you is that if a legislature did anything, they did quite a nice job of regularizing the district now that we only had four instead of six.

Now, I think I can sum up the evidence to say -- well, perhaps I better not sum up any evidence.

My time remaining is less than three minutes.

I don't believe I'll even be able to argue a lot and some of the time Mr. Sander will have -- I only regret that I cannot.

I think rather than start upon a new course of argument which I won't have time to develop, I will simply say that I'm very appreciative of the Court's indulgence and consideration in this and in the prior WMCA case and turn over the argument to Mr. Sandifer.

Chief Justice Earl Warren: Mr. Sandifer.

Argument of Jawn A. Sandifer

Mr. Jawn A. Sandifer: Mr. Chief Justice, may it please the Court.

I represent the intervenors in this action.

The intervenors consist of Congressman Adam Clayton Powell of the 18th Congressional District together with all of the district leaders who are also comprised within the 18th Congressional District, all of them are Negroes with exception of one Puerto Rican district leader in the 14th Assembly District.

All of the intervenors are members of the Democratic Party and as a matter of fact, they are all members of the County Executive Committee.

Now, we take the very limited position here before this Court that the plaintiffs did not make out a prima facie case that the lines under attack were drawn based upon a racial consideration.

As a matter of fact and I might say to Your Honors that that position is consistent with the position that was taken by the intervenors in the court below.

We do not feel further that this particular case falls within the mainstream of the civil rights cases that have been decided by this Court.

I would only refer Your Honors to pages 121 and 122 of the record that is before you.

You will note in the opening part of my argument in the court below, I specifically stated to the Court that if I personally believed for a moment that the basis for redrawing the lines in the 17th Congressional District were based upon race or place of origin, I would be the first to join the plaintiffs in the relief which they were seeking here.

And on page 122, in response to the question that was put to me by Judge Feinberg, when he said, "Is it your position that if they were drawn on a racial basis, you would agree with the plaintiffs that that was unconstitutional?"

And my answer unequivocally was, “I would wholeheartedly say yes.”

Now, I want to take this opportunity Your Honors to specifically disagree with the position that Mr. Galt took in response to Mr. Justice Goldberg's question and in further response to Mr. Justice White's question.

I take the position completely and unequivocally that if the state legislature used race as a consideration in drawing of these district lines that the lines would be absolutely unconstitutional and the Court would have to so decide.

That's the position that I take.

I do not associate myself with that position.

I want to say further that there's some reference in the record here before the Court and I think there's some reference in the plaintiff's brief that we are arguing for what we consider and deemed to be good segregation.

I think that Judge Feinberg uses -- makes that remark.

I say that there is no basis in the record before this Court for that particular statement.

We do not argue that.

I don't think there is any such thing as good segregation.

I think Judge Feinberg probably drew that inference from the affirmative defenses that were originally raised by the intervenors in the original action but I would call the Court's attention to the fact that the affirmative actions were dismissed by the court below at the conclusion of the entire case that those affirmative defenses are not a part of the record before this Court, that the only on record before this Court is the position that we took below that the defendant -- that the plaintiffs had not made out a prima facie case and that is the position that we have here.

Now we do however, and I want to make our position perfectly clear, we do however reserve the right to utilize our voting strength and power to what we deem to be our best advantage as we find large segments of our Negro population concentrated in one particular area.

For that we do feel that we have a right to utilize that voting strength to the best of our ability.

We have very little control over the situations that exists as far as Harlem is concerned because of the housing situation that we are confronted with in the State -- in City of New York.

But so long as a Negro, as a race of people, are not free to participate and move freely in an open society, we will find the Harlems throughout the United States, not only in New York but throughout the United States, and so long as these Harlems do exist such as the 18th Congressional District in Harlem then we'll feel that the State does not have the right to single out the Negroes and to phenomenally disperse them into other Congressional Districts on Mr. Feldman’s theory that they can be more effective if that is done or that the efforts and desire on the part of Mr. Feldman here is to deprive the Negroes that what has happened here that Negroes has been deprived of their influence in the other three Congressional Districts because I might only remind Mr. Feldman of the situation as far as the Stuyvesant section of Brooklyn for an example where we have far more Negroes concentrated than we do right in Harlem in the 18th Congressional District.

Some 450,000 Negroes in Stuyvesant and I would ask Mr. Feldman or anyone else whether or not a Negro has ever successfully run for Congress and has been elected in that particular Congressional District.

We might also refer to Bronx County particularly in southern -- the south -- southern part of Bronx where the big figures are equally substantial or to Queens where Negroes in these large concentrated areas for the very reason to the fact that Congressional District is drawn in such a way that the Negroes are not to be elected from those particular districts.

The intervenors that are here in this particular case before the Court today, every single Negro that's in the state legislature in the Manhattan County that we are talking about, every single Negro that is a district leader that in the state assembly are in the City Council all comes out of the 18th Congressional District and not single Negro district leader would you find in any of the other three Congressional Districts.

Now, if there was any proof and I will make this position clear also, that if the lines were drawn on a racial basis as has been suggested by Mr. Galt here are raised in what's in consideration, I don't think and I made the statement of Judge Feinberg below that I don't think that Negro that you would even have to go so far as the show that there was any advantage or disadvantage that flowed as result of the lines having been drawn on a race basis.

I think if you found race involved regardless of whether it was an advantage or disadvantage, I think that the Court would have to hold that that statute was unconstitutional.

But since Mr. Feldman has advanced this argument that Negroes would be better off if they were dispersed among the other three Congressional Districts, I would have to post -- pose that particular questions as to whether or not a Negro who has been boxed out of the 17th Congressional District or -- or Puerto Rican has been boxed out, whether or not if that line was redrawn to include that particular Negro or that Puerto Rican, whether or not that Negro or Puerto Rican would find himself any better off than he would have been if he remained in the 18th Congressional District.

I suggest that when that Negro woke up that next morning or the Puerto Rican woke up and found that he was still in the slum, that he still economically was at the bottom of the ladder, that he still was without a job or was gainfully employed, that his children still were going to the work schools in the community, that there was the very little difference in far as he was concerned politically as to whether or not he was any better off than he would have been if he had remained within the 18th Congressional District.

Now, I'd like to just go for a moment, if I may, to the two lines of cases that are relied upon by the plaintiffs.

First all, the Gomillion cases, I think it was Judge -- Mr. Justice Black who pointed out almost in the very outset of Mr. Feldman's argument.

The Gomillion case is so obviously distinguishable from the issue that involved in this case that it doesn't need to be belabored at all.

Obviously, in the Gomillion cases, where 400 Negroes has been cut out or boxed out of Macon County, that not only were these Negroes deprived of the right to vote but they were deprived to many other municipal facilities which they had previously enjoyed.

There's no such showing in this case at all.

I would even submit to the Court that but for injection of the issue of race in this case that this case would have been no different from Baker versus Carr and the very fact that they have cited this particular Gomillion and relied upon it together with de facto school cases does not bring this case within the purview of either one of those cases.

Now, throughout Mr. Feldman's brief, he relied heavily upon Branche versus Board of Education of Hempstead.

It so happens that I personally handled that case for the New York State Conference and the National Association for Advancement of Colored People and argued that case before Judge Dooling and the whole program or the whole thrust of our arguments and all of the de facto school cases throughout the state of New York is based upon the fact that the Court has found that Negro children were educationally disadvantaged as a result of the segregated schools that they have been going to and this is the thrust of our argument.

And I submit that even the findings of the Commissioner of Education of the State of New York in this de facto field, takes these cases completely outside of the purview of the argument that is advanced here, that the Negroes are being politically deprived to some right and some enjoyment by being placed in one Congressional District as opposed to another.

I don't think that that argument is sound.

I don't think that it is consistent with the whole theory of the de facto school cases at all.

Argument of Justin N. Feldman

Mr. Justin N. Feldman: Mr. Chief Justice, may it please the Court.

I'm interested in this dissent of this argument.

I won't devote much time to it because as I read -- heard this argument, what he said was, "If segregation had been proved here to the point where I couldn't deny it, I wouldn't be here," but under the circumstances, I'm here to tell you that I like segregation in the 18th Congressional District because that's how -- the way we become leaders in the 18th Congressional District.

That's the way we became -- we as intervenors became leaders.

It's got nothing to do with the question of the rest of the community or the individual rights or the rights of the rest of the group and that's the whole theory of this -- the whole problem with this benign code of concept.

Whom does it advantage and whom does it disadvantage?

And I suggest that --

Justice Potter Stewart: As I understood, as I understood Mr. Sandifer's argument is -- it was this that that if it were shown indisputably or by proof that -- that this -- that New York State had divided its Congressional Districts on -- on racial -- on racial lines and he -- and he disagreed with Mr. Galt to think that that was unconstitutional state action, but he further went on to say first that he didn't think there was any proof of that in this case and later in his argument he pointed out that there is in fact de facto, segregation if you want to call it that, certainly concentration of these Negro and Puerto Rican groups in Harlem as all the world knows.

Certainly, everybody in New York knows that.

Mr. Justin N. Feldman: That is correct sir, but as we also showed by the use of the neutral lines, this fact means that there will always be a majority of Negroes and Puerto Ricans in one Congressional District.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: That -- that is --

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: -- that is correct sir.

But no matter how this population shifts, I submit, that with the 40% of the population of Manhattan being Negro and Puerto Rican, if we have four Congressional Districts, it becomes well nigh impossible not to have very substantial influence and the proof of their influence sir without this benign need to -- to gerrymander is the fact that since 1953, the one single constituency officer in the city of -- in New York County, Manhattan has been a Negro.

The Negro borough president of Manhattan who's elected since 1953 because of this 40% situation so that you don't need the jam Negroes into one area in order to make this advantage, give them this disadvantage.

I submit further that this is an unimaginable standard and one which if the Courts were ever to get into would become complete -- make a complete morass of the judicial -- install complete morass in the judicial system.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: Right.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: I have no problem.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: I have no problem sir.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: I could look at those lines and say these are what I called neutral colorblind lines and this is the way it works out and this is the way it has to be.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: Well sir, I think in a racial classification case, it's no more necessary that I vitiate those theories than I vitiate them that would have been necessary for the plaintiffs in Johnson against Virginia to come in and prove that the distinctions in that courtroom were not based upon the fact that the people on the left side are less than a $1,000 a year and the people on the right are -- side earn more than a $1,000 a year.

There are many possibilities.

Am I supposed to vitiate the fact that maybe there are more gasoline stations in one district than another or more green houses or blue houses or yellow houses.

I don't know there are a lot of other available inferences theoretically and once I've shown the racial classification, I say this burden shifts and the state must come forward to explain what the real reason was.

Now, Mr. Justice White asked about the former jagged lines.

There are explanations to that.

I think anybody in those New York, those at this particular area has changed, the long East River Drive and Eastern Avenue.

This was jagged at one point, it's not jagged now.

The racial composition is good.

I might point out that Mr. Galt benefits that -- I may point out that for the benefits of the Court, excuse me, [Attempt to Laughter] that this area that was dropped is, as he said, 50% Negro and Puerto Rican, the relevance of it being a Mount Sinai Hospital was nil because it was Mount Sinai Hospital before.

And as far as the history of the county is concerned, these districts were cut in parallel lines as you'll see from defendant's Exhibit C, I believe it is.

In 1911, when the population of the county was 2,300,000 and there were only 600 -- or excuse me 60,000 Negroes, and in 1921, when the population of the Negroes was small, parallel lines, no need for it.

These kinds of line started to develop in 1941 when the population of the county was 1,900,000 and we had 300,000 Negroes.

We don't have a separate figure for Puerto Ricans because they didn't take separate figures for the census at that time, that's when jagged lines developed.

And if they were going to build on historical basis, why was it that instead of adding this area, they didn't add the area that used to be in the 17th.

You know, it used to go up along between Central Park and Western Columbus Avenue all the way to 97th Street up to 1941, when they dropped that out, because as you can see the composition of the map, this was a much more preferable area.

Wherever they had the choice, they made that kind of choice.

If they were straightening lines, why not straighten it along with the northern border or along the park in 110th Street and equalize the size of the district, why not?

They must tell us.

We can't be expected to rebut every available inference.

There are a myriad of inferences and this kind of burden cannot be placed upon plaintiffs in a segregation case.

It would mean that you would just never could prove segregation because you are never going to catch the eyewitness from the legislature.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: That's --

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: Well, in the -- in terms of these steps sir, as I said in the old district, the steps were contrived because this area has Negroes and Puerto Ricans.

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: Yes they basically drew across here but they still have steps up here and it's assonantly this step Mister -- or Justice White maybe interesting to you because this one that this two block area that was draft that Mr. Irving Galt refers to as Mount Sinai Hospital was two to one republican in enrollment so I don't know why they wouldn't have included that one in the district if the motivation was political.

But the point is this is the difficulty with all of these so-called available inferences.

Why is New York entitled to have us rebut such inferences?

It wouldn't be available at -- to them in other states.

This question wouldn't arise on this proof and I said --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: Yes sir.

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: Sir, in the segregated --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: In a segregated -- in a segregated situation, vested rights develop in leadership groups.

And it is sometimes convenient for a white group to service the Negro leadership and vice-versa and that is one of the difficulties with Mr. Sandifer's argument in this benign coded theory and it was very easy to make this arrangement on (Inaudible) the Negroes into the 18th and giving at all white district to somebody else, perhaps not the course enough lack of political difficulty for someone, I don't know but nevertheless, I don't know what their purpose was.

They classified on the basis of race.

Justice Byron R. White: The entire of the 18th (Inaudible).

Mr. Justin N. Feldman: I don't know the motives sir.

I am unable to determine motives and I don't know that motive is constitutionally relevant in this instance.

Certainly, as Mr. Galt --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: Let me say one other thing sir, as I showed from our -- if you find Exhibit 6 (a) or 6 (b) and incidentally Mr. Galt makes the point about that that one of the districts would have had only 9.5 Negroes and Puerto Ricans instead of the 5%, in that situation where one district had 9.5 almost twice as many Negroes and Puerto Ricans percentage wise as we have in the 17th, you would have two districts with almost 60% Negroes and Puerto Ricans and that both may well have been on the part of the legislature to make certain that there was only one Negro and Puerto -- or Puerto Rican congressman from Manhattan.

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: No, ,my suggestion is that what they produced was something that they wanted to, no Negro influence in the 17th --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: -- and only one Negro congressman in Manhattan.

Because by arranging at that way sir, there would only be one Negro congressman from Manhattan where is if you drew the line across in parallels with equal size districts, you would have two districts at 60% Negro and Puerto Rican.

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: It wouldn't get to the 17th but it would -- but it would mean if I get to somebody else, I don't know sir that's the --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: No sir, I'm not saying it's political, it's --

Justice Byron R. White: (Inaudible)

Mr. Justin N. Feldman: They want to avoid two Negro congressmen instead of one, yes sir you might say it's political because they are talking about congressmen instead of visitors to a courtroom or a golf course but they are avoiding two Negroes instead and having one instead and I don't see that that makes any difference between the courtroom and the golf course, excuse me sir --

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: Alright sir that's traditional.

I'm glad you asked that question.

There's probably one -- one problem with that.

The percentage of Democrats, they were all Democrats, in this new 17th that they created is much higher than it was in the old 17th.

Not just numerically higher because they added voters; they added more people, but it's percentage wise higher.

This Stuyvesant Town area --

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: We'll go --

Unknown Speaker: (Inaudible)

Mr. Justin N. Feldman: No sir, we'll give you those figures too.

They wouldn't have you see because you don't have as much -- that the higher -- as higher percentage necessarily in your -- in your enrollment, but the point is that had gone in my direction, they would have not picked up proportionately anymore Democrats.

Unknown Speaker: Going straight north?

Mr. Justin N. Feldman: Going straight north.

They would not have picked up proportionately more Democrats than they did in Stuyvesant Town, in terms of enrollment, in terms of enrollment.

Unknown Speaker: In terms of votes.

Mr. Justin N. Feldman: In terms of votes.

Justice Potter Stewart: Who's the candidate?

Mr. Justin N. Feldman: I don't know sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Justin N. Feldman: No sir, I do not think so and certainly not well but I don't know or were no findings of fact in the court below.

Chief Justice Earl Warren: (Inaudible)

Mr. Justin N. Feldman: Sir the -- in order that you'll agree with me, I think if you would, would you disagree with Judge Feinberg's only available inference test and the inference of the economic and social classification that he made which was unsupported by the record which I think you can re -- review de novo.

It would, it would require a reversal.

Thank you very much.